CleanSoils, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 99 (N.L.R.B. 1995)

99
317 NLRB No. 14
CLEANSOILS, INC.
1 In the absence of exceptions, we adopt pro forma the judge’s
sustaining the challenges to the ballots of Michael Hayes, Randall
Roe, Wesley D. Faulkner, Joe Pete Smith, Robert D. Hughes, and
Terika Kons, and his overruling the challenges to the ballots of Mike
Turner and Thomas Knack.
The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s conclusion that the Respondent violated
the Act by discharging the alleged discriminatees, we find it unnec-
essary to rely on his statement that when the discriminatees were in-
formed of their discharges, they were not given a reason for being
discharged. Further, in adopting the judge’s conclusion that the Re-
spondent’s November 12, 1993 letter to the discriminatees did not
constitute a valid offer of reinstatement, we find it unnecessary to
rely on his statement that respondents must ‘‘plainly state’’ that they
are offering ‘‘reinstatement’’ to discriminatees.
2 In view of our adoption of the judge’s finding that the Respond-
ent violated Sec. 8(a)(1) of the Act by discharging Supervisor Mi-
chael Hayes, we find it unnecessary to pass on his finding that the
Respondent’s conduct also violated Sec. 8(a)(4), because the remedy
would be the same in any event. Kunja Knitting Mills U.S.A., 302
NLRB 545 (1991); Kessel Food Markets, 287 NLRB 426, 453
(1987); Orkin Exterminating Co., 270 NLRB 404 (1984). We shall
modify the judge’s recommended Order and notice to employees ac-
cordingly.
CleanSoils, Inc. and Michael Hayes and Stanley
Frantz and Bruce Allen Manderson Jr. and
International Union of Operating Engineers,
Local Union No. 302, AFL–CIO. Cases 19–CA–
22922–1, 19–CA–22922–2, 19–CA–22922–3, 19–
CA–23125, and 19–RC–12751
April 28, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On November 1, 1994, Administrative Law Judge
William J. Pannier III issued the attached decision. The
Respondent has filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
CleanSoils, Inc., Roseville, Minnesota, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Interfering with, restraining, or coercing non-
supervisory employees in the exercise of their statutory
rights by discharging or otherwise discriminating
against supervisory personnel for giving testimony in a
hearing before the National Labor Relations Board.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interfere with, restrain, or coerce non-
supervisory employees in the exercise of their statutory
rights by discharging or otherwise discriminating
against supervisory personnel for giving testimony in a
hearing before the National Labor Relations Board.
WE WILL NOT terminate, discharge, or otherwise dis-
criminate against you because you engaged, or are sus-
pected of engaging, in activity on behalf of Inter-
national Union of Operating Engineers, Local Union
No. 302, AFL–CIO or on behalf of any other labor or-
ganization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer to Michael Hayes, Stan Frantz, and
Bruce Allen Manderson Jr. immediate and full rein-
statement to the positions from which they were termi-
nated on August 31, 1993, dismissing, if necessary,
anyone who may have been hired or assigned to per-
form the work which they had been performing prior
to their unlawful terminations, or, if any of those posi-
tions no longer exist, to a substantially equivalent posi-
tion or positions, without prejudice to seniority or
other rights and privileges, and WE WILL make Hayes,
Frantz, and Manderson whole for any loss of pay and
benefits suffered as the result of the discrimination di-
rected against them, with interest on the amounts
owing.
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless stated otherwise, all dates occurred during 1993.
2 As will be seen by reading further one or the other of these terms
was used at various points during the hearing to describe the August
31 separations from employment of those three individuals.
WE WILL notify Hayes, Frantz, and Manderson that
we have removed from our files any reference to their
terminations of August 31, 1993, and that those termi-
nations will not be used against them in any way.
CLEANSOILS, INC.
Daniel R. Sanders, for the General Counsel.
James K. Poucher and John K. Poucher, of Roseville, Min-
nesota, for the Respondent.
Malcolm J. Auble, of Anchorage, Alaska, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. On
September 1, 1993,1 the charges in Case 19–CA–22922–1,
alleging violations of Section 8(a)(1), (3), and (4) of the Act,
and in Cases 19–CA–22922–2 and 19–CA–22922–3, alleging
violations of Section 8(a)(1) and (3) of the Act, were filed.
On December 21 the charge in Case 19–CA–23125, alleging
violations of Section 8(a)(1) and (3) of the Act, was filed
and a first-amended charge was filed in that case on January
14, 1994, alleging violations of Section 8(a)(1), (3), and (4)
of the Act.
On October 29 the Regional Director for Region 19 issued
an order consolidating cases, consolidated complaint and no-
tice of hearing in Cases 19–CA–22922–1 through 19–CA–
22922–3, alleging violations of Section 8(a)(1), (3), and (4)
of the Act. On February 1, 1994, the Regional Director
issued an order further consolidating cases, consolidated
amended complaint and notice of hearing, adding Case 19–
CA–23125 to those already consolidated for hearing and de-
cision on October 29. On February 7, 1994, the Regional Di-
rector issued an amendment to the consolidated complaint
and on March 14, 1994, issued a second amendment to con-
solidated amended complaint.
On February 23, 1994, the Regional Director issued a Re-
port on Challenged Ballots and Direction of Hearing in Case
19–RC–12751. It directed that a hearing be conducted re-
garding the eligibility of 12 individuals who had appeared to
vote in the representation election conducted in that case on
November 9 and whose eligibility to do so had been chal-
lenged. By order on that same date, the Regional Director
consolidated that hearing with the one to be conducted in
Cases 19–CA–22922–1 through 19–CA–22922–3 and 19–
CA–23125.
I conducted that hearing in Anchorage, Alaska, on April
7, 1994. All parties were afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based on the entire record, on the
briefs that have been filed, and on my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times CleanSoils, Inc. (Respondent) has
been a Minnesota corporation, with office and place of busi-
ness in Roseville, Minnesota, engaged in the nonretail busi-
ness of cleaning petroleum-polluted soils through low tem-
perature thermal desorption at various locations in the United
States, including Alaska. In the course and conduct of those
business operations during the 12-month period preceding
issuance of the second amendment to consolidated complaint,
a period representative of all material times, Respondent sold
and shipped goods or provided services valued in excess of
$50,000 from its Minnesota facilities either directly to cus-
tomers outside that State or to customers within Minnesota,
each of whom engaged in interstate commerce by other than
indirect means. Therefore, I conclude, as admitted by Re-
spondent, that at all material times Respondent has been an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all material times International Union of Operating En-
gineers, Local Union No. 302, AFL–CIO (the Union) has
been a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The ultimate question presented by the complaint is Re-
spondent’s motivation on Tuesday, August 31, for selecting
Michael Hayes, Stan Frantz, and Bruce Allen Manderson Jr.
for layoff or termination.2 Respondent contends that their se-
lection had been a logical choice dictated by its need to re-
duce personnel in Alaska due to diminished business there.
The existence of diminished business in Alaska by late sum-
mer is not challenged by the General Counsel. He does chal-
lenge, however, Respondent’s motivation for selecting Hayes,
Frantz, and Manderson for separation from employment on
August 31, alleging that Hayes had been selected because of
his testimony as a witness for the Union during a preelection
representation hearing and, further, that Frantz and
Manderson had been chosen because of their support, or per-
ceived likely support, for the Union becoming the bargaining
agent of Respondent’s Alaska employees. For the reasons set
forth, I conclude that a preponderance of the credible evi-
dence supports the General Counsel’s allegations.
B. Events Preceding the Union Activity
James K. Poucher owns all shares of the stock of Re-
spondent. As set forth in section I, above, it engaged in the
business of cleaning petroleum-polluted soils through a proc-
ess of low temperature thermal desorption—that is, through
101CLEANSOILS, INC.
3 Note that there are two Singletons: Joe E. and Joe F. Joe F. Sin-
gleton according to John Poucher, ‘‘was division manager’’ for Re-
spondent’s Alaska division and, in fact, R. Exh. 7 lists his title as
‘‘Division Manager.’’ Thus, he had been one of the individuals in
that supervisory level whom John Poucher had personally replaced,
as described above. It cannot be determined from the record whether
Joe F. Singleton’s employment with Respondent had been separated
after the workweek ending July 23 or whether he had been trans-
ferred to another of Respondent’s operations. But that is not an alter-
native whose resolution is material to resolution of the issues posed
by the complaint, although it could be some basis for concluding
that John Poucher had arrived in Alaska during the night of July 25
to 26, after which he personally replaced Singleton.
heat. To accomplish that Respondent operates soil remedi-
ation plants, which can be moved by trailer from location to
location, and various support and auxillary equipment.
As 1993 began Respondent was engaging in that business
in Minnesota, Wisconsin, California, and Alaska. But by then
it had become obvious that profit margins on operating reve-
nues were not attaining Poucher’s expectations. Indeed, Re-
spondent appeared to be losing money. That appearance
would be quantified in late July or early August when he re-
ceived a financial statement revealing a loss of over
$600,000 through June. Almost the entirety of that loss—
$651,929.96 of $674,185.44—had been incurred by Respond-
ent’s Alaska operations.
During the first half of the year Respondent pursued var-
ious courses to correct its deteriorating financial situation. It
implemented and insisted on observance of operating proce-
dures and directives. It transferred equipment among loca-
tions to minimize new equipment purchases. It reduced the
numbers of field and office personnel. Yet, none of these
measures proved so successful as James Poucher had hoped.
Finally, he persuaded his brother, John (Jack) K. Poucher, to
accept the position of vice president for operations. In that
capacity John Poucher took over all operations for Respond-
ent and, he testified, as of the date of the hearing, ‘‘I still
have full rein of all the operations.’’
His selection as vice president for operations had not been
dictated solely by familial relationship. ‘‘I designed some of
the . . . state-of-the-art equipment that’s been in use around
the country,’’ testified John Poucher and ‘‘I basically de-
signed and built every plant [Respondent’s has], except for
one.’’ That exception, he testified, is ‘‘the one-oh-one [101]
plant,’’ which was located in Anchorage during the period
preceding the terminations on August 31.
It is not altogether certain from the evidence precisely
when John Poucher actually began functioning as vice presi-
dent for operations. From some questions posed by his broth-
er, as well as from his own testimony, it appears that John
Poucher did so on approximately July 1 or, at least, at the
very end of June or the very beginning of July. According
to John Poucher, on doing so, he observed generally that
‘‘equipment wasn’t being operated efficiently throughout all
the divisions’’ and that ‘‘equipment was not being main-
tained,’’ as well as that ‘‘some of the costs for purchasing
spare parts, replacement parts, tools, and supplies . . . were
approaching the cost of labor.’’
To correct at least some of those problems, John Poucher
instituted several measures. He eliminated one level of super-
vision, personally replacing the managers for each geo-
graphic division and directing that division supervisors report
directly to him: ‘‘all the supervisors reported to me centrally,
whereas before, they reported to the district manager, divi-
sion manager in their state or region.’’ He ‘‘put together a
corporate parts and maintenance type of a program.’’ Due to
what he perceived as high labor costs Poucher developed a
form for reporting, on a daily basis, amounts of production
and labor costs expended, doing so at each location. Each
week the location supervisors reported those results directly
to John Poucher. Every week or every other week he pre-
pared an overall summary of results from all locations. Those
summaries were then disseminated to all locations so that
personnel there could evaluate their own performance against
performance at other locations.
In addition, John Poucher formulated a minimum hourly
production or throughput rate and a maximum labor cost per
ton below and above which, respectively, soil should not be
processed. That is, if those rates could not be achieved when
processing contaminated soil, then production should not be
conducted. Presumably, the soil should be stockpiled until
there was a sufficient quantity to achieve those rates.
Not until late July or early August, he testified, did John
Poucher actually journey to Alaska to inspect operations
being then conducted in Anchorage and Kenai. Poucher testi-
fied that he ‘‘believe[d] I arrived on Sunday or early Monday
in Anchorage.’’ Looking at a 1993 calendar and given the
ambiguity of Poucher’s testimony concerning when he had
arrived in Alaska that could mean that he had arrived there
during the night of Sunday, July 18, to Monday, July 19; or
during the night of Sunday, July 25, to Monday, July 26; or
during the night of Sunday, August 1, to Monday, August 2;
or during the night of Sunday, August 8, to Monday, August
9. The significance of those dates pertains to Respondent’s
Alaska employment complement during those weeks in light
of the ultimate selection issue posed by the complaint. Fortu-
nately, Respondent introduced an abstract of work hours by
Alaska employees (R. Exh. 7) for each week during the ap-
proximately 1-year period prior to the week ending August
20.
That abstract shows that during the workweek ending Fri-
day, July 16, Respondent had employed in its Alaska divi-
sion Stan Frantz, Gregg Garrison, Michael Hayes, Michael
Johnson, Ron Johnson, Bruce Manderson, Matt Michael,
Evelyn Moe, Tim Richardson, Randall Roe, Joe F. Singleton,
Stan Sutton, Michael Turner, and Troy Watling. During the
following workweek, ending on Friday, July 23, those same
14 individuals were employed there, along with Joe E. Sin-
gleton. But the latter is not shown to have again performed
work for Respondent during any succeeding week embraced
by the abstract. That also is the fact with respect to Michael
Johnson, Evelyn Moe, Randall Roe, Joe F. Singleton,3 and
Michael Turner. Like Joe E. Singleton, none of those six in-
dividuals were employed in Respondent’s Alaska division
during subsequent workweeks ending July 30 and August 6,
13, and 20.
In contrast, during every 1 of those 4 workweeks Frantz,
Hayes, Ron Johnson, Manderson, and Watling are shown as
having continued to work for Respondent. Concerning two of
the remaining four above-named individuals, no hours are
listed for Garrison during the workweeks ending July 30 and
August 6, but he is shown as having worked 10 hours during
the workweek ending August 13 and 53 hours during the
workweek ending August 20. Respondent’s Exhibit 7 further
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shows that Michael worked 45 hours during the workweek
ending July 30, did no work during the workweek ending
August 6, worked 35 hours during the workweek ending Au-
gust 13, and worked ‘‘0.00’’ hours during the workweek
ending August 20. Both Richardson and Sutton are shown to
have worked 40 or more hours during the workweeks ending
July 30 and August 13 and 20, but no entry of hours worked
during the workweek ending August 6 is shown for either
man. Inasmuch as John Poucher testified that he had met
with Sutton during his first trip to Alaska, the absence of any
hours for Sutton during the workweek ending August 6 ap-
pears to preclude that week as the one during which Poucher
made his first Alaska trip.
With regard to titles and duties of those individuals other
than the Singletons, Respondent’s Exhibit 7 lists as laborers
Garrison, Manderson, Richardson, and Turner. Frantz, Mi-
chael, and Roe are shown as panel operators. Michael John-
son is titled ‘‘Engineer’’ and Evelyn Moe as ‘‘Office Man-
ager.’’ Ron Johnson’s title is shown on that exhibit as ‘‘Asst.
Division Mn.’’ When he appeared as a witness for the Gen-
eral Counsel Johnson testified that for almost a year prior to
‘‘around the first of August,’’ he had been ‘‘the assistant to
the Alaska division manager’’ and thereafter had served as
‘‘divisional coordinator’’ until he ceased working for Re-
spondent in mid-October.
Sutton, Hayes, and Watling are admitted to have been stat-
utory supervisors and agents of Respondent while working
for it during the summer. The complaint alleges and Re-
spondent admits that during that time Sutton had been Re-
spondent’s field operations manager—Alaska division. He
testified that he had occupied that position from January until
he quit working for Respondent during September. In that
capacity Sutton testified without dispute he had been ‘‘in
charge of both remediation plants,’’ in Anchorage and in
Kenai. Reporting directly to him had been Hayes and
Watling. Regarding them, a seemingly inexplicable dispute
emerged, although it may be that John Poucher perceived
some sort of tactical advantage was being achieved by Re-
spondent through his testimony regarding that subject.
Hayes testified that since the end of October 1992 he had
been a ‘‘[s]ite supervisor.’’ Although Respondent does not
contest the ‘‘supervisor’’ part of that title, John Poucher con-
tested inclusion of the word ‘‘site’’ in the title, ‘‘We don’t
have any titles as site supervisor. I want to make that clear.
We have supervisors. The supervisors are in charge of the
plant.’’ Yet, when he appeared as a witness for Respondent,
Troy Watling testified that his current position was ‘‘[s]ite
supervisor’’ and that he had occupied that position, ‘‘Since
February of last year.’’ Moreover, although Respondent’s
Exhibit 7 lists no title for either Hayes or Sutton and lists
for Watling the title ‘‘Kenai Supervisor,’’ it does list for Rod
Christopher and Ed O’Connor the title ‘‘Site Supervisor.’’ In
fact, at some points during his questioning of witnesses,
James Poucher also occasionally used the title ‘‘site super-
visor.’’
Be that as it may John Poucher testified that when he had
arrived in Alaska working in Anchorage had been Hayes,
Frantz, and Manderson, with all other Alaska field person-
nel—those classified as site supervisor, panel operator, and
laborer—as well as Sutton, working with the remediation
plant then located in Kenai. As site supervisor, or as super-
visor, Hayes had been as John Poucher testified, ‘‘in charge
of the plant’’ being operated in Anchorage, denominated
SRU 101. Frantz had been the panel operator, the classifica-
tion to which he had been assigned by Respondent when he
had been hired and had begun work on February 24.
According to Respondent’s Exhibit 7, Manderson had
commenced working for Respondent on July 17, 1992. It
lists his title as ‘‘Laborer.’’ He testified, however, that he
had been so classified only since July when, after having
been laid off from the position of expediter-laborer in which
he had been classified prior to then while working for Re-
spondent, he had been rehired as a laborer. Manderson testi-
fied that the period of that layoff had been for ‘‘a couple of
days’’ and, indeed, a review of the entries by his name on
Respondent’s Exhibit 7 reveals hours of work listed for
Manderson during every workweek after the one ending May
7.
Poucher testified that almost all of his time during that
visit to Alaska had been spent in Anchorage. For, he testi-
fied, and that testimony is not disputed, he had observed a
series of problems with the manner in which operations were
being conducted there: The plant was being operated at an
excessive temperature, it was being operated at a throughput
below Poucher’s above-mentioned minimum level, excessive
carbon monoxide was being emitted by the plant, and no soil
profile sheet was available. After ordering the plant shut
down and preparing a soil profile sheet, John Poucher testi-
fied, ‘‘we started up the plant again . . . and were running
at the new parameters, primarily running at approximately
400 degrees temperature Fahrenheit.’’
Nonetheless, testified Poucher, again without contradiction,
when he returned to the site on the following day he discov-
ered that the plant was not being operated. He was told by
Hayes ‘‘that they decided they were going to repair a con-
veyor belt.’’ According to Poucher, repair of a conveyor belt
‘‘should take no longer than two hours for two people,’’ but
by the end of that workday ‘‘they still didn’t have the belt
changed.’’ So, he testified, ‘‘I got hold of Sutton in Kenai
and I told him to drive to Anchorage immediately.’’
Sutton did so, arriving in Anchorage by the following
morning. An examination of the SRU 101 plant ‘‘uncovered
several items that needed to be changed,’’ testified John
Poucher, explaining that ‘‘there were several situations that
were, I’d say jimmy-rigged, I guess.’’ He characterized the
repairs, however, that were needed as ‘‘very simple’’ ones
and, as a result, ‘‘basically in the course of the next day, we
got everything repaired,’’ and ‘‘the plant was fired up the
next day.’’ During that period, Poucher testified that he also
‘‘reviewed with [Sutton] my great displeasure with the oper-
ation in Anchorage. I told him to stay in Anchorage . . .
until this was running at the expected efficiencies.’’ Signifi-
cantly, as will be seen, Poucher further testified that ‘‘after
some of those things were adjusted . . . the plant literally
jumped up in . . . throughput almost three times, and oper-
ated that way pretty much for the month of August, where
we had little problems, ran relatively smoothly.’’
Before leaving Alaska, Poucher drove to Kenai where he
reviewed with Watling operation of the plant located there,
denominated SRU 107. Poucher testified that Kenai oper-
ations were satisfactory. As a result, after spending approxi-
mately a day in Kenai, he returned to Anchorage from which
he ultimately departed Alaska.
103CLEANSOILS, INC.
C. The Organizing Campaign and Related Incidents
When John Poucher left Alaska he left behind something
more than a ‘‘relatively smoothly’’ functioning operation in
Anchorage. On August 16 the petition was docketed in Case
19–RC–12751 seeking an election among all employees em-
ployed by Respondent in Anchorage and Kenai. On that por-
tion of the petition numbered 6a and 6b, the Union recited
that there were six employees present in the unit and that the
petition was ‘‘supported by 30% or more of the employees
in the unit[.]’’ Apparently that 30-percent showing-of-interest
had been secured when, prior to August 16, Hayes had con-
tacted Ed Kareen, the Union’s district representative, and on
the following day accompanied by Frantz and Manderson
had met with Kareen and Field Representative Malcolm J.
Auble.
Manderson testified that following that meeting he never
spoke about the Union with any of Respondent’s other em-
ployees. Nor did Hayes testify that he had done so. Frantz
testified, however, that he discussed his visit to the Union
during telephone conversations with Watling, Richardson,
Michael, and Garrison. When Watling and Richardson later
came to Anchorage, testified Frantz, he had met with them
at Richardson’s home where he informed them that he,
Hayes, and Manderson had signed up for representation by
the Union. According to Frantz, he also had explained to
Watling and Richardson the benefits that he felt that the
Union could provide and had inquired if either man was in-
terested. Frantz testified that Watling had responded, ‘‘it’d be
a good idea to stay away from the whole thing. He wanted
nothing to do with it,’’ and Richardson had said that he
would go along with Watling.
Appearing as a witness for Respondent, Watling testified
generally, ‘‘I hadn’t heard anything about the petition until
the last couple of days.’’ More specifically, he denied having
met with Frantz at Richardson’s home and, further, denied
that any of Respondent’s employees had called him about the
Union. Still, Watling never disputed with particularity that he
and Richardson had discussed the Union with Frantz and,
more importantly, never denied that he had been informed by
Frantz of the identities of those who had signed up for the
Union. That is he denied merely that any remarks had been
made to him by telephone or at Richardson’s Anchorage
house.
Nor did Watling contest Frantz’s testimony that after be-
ginning work for Respondent on February 24 Frantz had
asked Watling, who had been a site supervisor ‘‘[s]ince Feb-
ruary of’’ 1993, why Respondent was not unionized. Accord-
ing to Frantz, Watling had replied, inter alia, that ‘‘in the
past they had tried to reorganize [sic] back in the Midwest,
Wisconsin, Minnesota area, and . . . the guy who initially
proposed it got fired.’’ As it turns out that had not been the
first occasion when the subject of a union had arisen.
Manderson, who as pointed out above began working for
Respondent in July 1992, testified that during early Septem-
ber of that year he had been working at pump station 3 with,
among others, Eric Shellum, Ed O’Connor, and Watling. Of
course, that was before Watling had become a site super-
visor. Manderson testified, however, without contradiction,
that ‘‘at that time [Shellum] was an operations manager for’’
Respondent whose ‘‘main duties were to finish building the
plant, overseeing and finish building the plant at Pump Sta-
tion 1 and getting ready for the stack tests on plant number
107 [then] at Pump Station 3.’’ In fact, Respondent’s Exhibit
7 shows that Shellum had worked in excess of 40 hours in
each of the workweeks ending September 4, 11, 18, and 25,
1992, as well as during the one ending October 2, 1992.
Moreover, as is true of Sutton and Hayes, both admitted stat-
utory supervisors when working for Respondent, no entry ap-
pears by Shellum’s name under the title column of that ex-
hibit. In sum, there is ample basis in the record for conclud-
ing, and I do, that Shellum had been a statutory supervisor
during September 1992.
So, too, had been O’Connor. In its answer to consolidated
complaint, Respondent ‘‘denie[d] that Ed O’Connor is or was
a Supervisor within the meaning of the [A]ct but admits that
he was a shift foreman on Alyeska Pump Station #3 in
1992.’’ John Poucher testified that O’Connor ‘‘was never a
supervisor in Alaska because Joe [Singleton] wouldn’t make
him one.’’ Yet, as pointed out above, Respondent’s own Ex-
hibit 7 lists O’Connor as a ‘‘Site Supervisor’’ and, also,
shows that he had worked during the same September 1992
workweeks as had Shellum. Respondent never did explain
why its own records had listed O’Connor as a site supervisor
if he had not been one. And, affirmatively, Hayes testified
that he had been told by Joe Singleton that O’Connor was
‘‘the supervisor’’ and that O’Connor’s title had been site su-
pervisor at the Kenai plant where Hayes had worked for ap-
proximately 3 weeks during late 1992. I conclude that the
evidence establishes that O’Connor also had been a statutory
supervisor at least during 1992.
The significance to Shellum’s and O’Connor’s positions is
that Manderson testified that on two occasions while working
at Pump Station 3, during September 1992, he had inquired
about Respondent’s history in Minnesota. In response, testi-
fied Manderson, Shellum, and O’Connor had said, inter alia,
that ‘‘Jim and Jack Poucher were against any type of union
organization trying to come in and set up representation for
any of the [Respondent] workers. And their basic comments
were that they would—they would basically try to do any-
thing they had to stop the union from organizing.’’
In fact, James Poucher acknowledged that Respondent
‘‘has been involved in a union organization effort before,’’
apparently during 1991 when, he testified, ‘‘I was involved
in a similar situation in Minnesota.’’ He further testified that
then, however, as in Alaska during 1993, ‘‘We used the
exact, same strategy. . . . And that was to let the employees
decide.’’ But if James Poucher had truly been unconcerned
about whatever choice regarding representation would be
made by Respondent’s employees, his brother was less disin-
terested. For Sutton testified that John Poucher had during a
telephone conversation ‘‘asked if I knew who was behind’’
the petition.
To be sure, Sutton went on to testify that when he had re-
sponded that he did not know the answer to that question,
John Poucher had pursued the subject no further. John
Poucher agreed, however, that he had sought from Sutton in-
formation concerning which employees were supporting the
Union. ‘‘I tried getting information from Stan and he said he
didn’t want anything to do with it and he knew nothing.
That’s Stan Sutton.’’ Yet, the rest of Poucher’s answer dem-
onstrated that he had not confined his inquiry to Sutton. For
although he denied having similarly questioned Watling and
Hayes about the subject, and further testified, ‘‘I had no idea
who was for, who was against, had no clue,’’ John Poucher’s
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
full answer discloses a more far-reaching inquiry about the
Union’s supporters than simply one directed at Sutton:
There was a lot of rumors and I—I couldn’t get any
of the employees—I—I tried getting information from
Stan and he said he didn’t want anything to do with it
and he knew nothing. That’s Stan Sutton. I did not ask
Troy, did not ask Hayes, and I basically was trying to
pick up some information when I was up there during
that week, the last week in August. And nobody was
talking, nobody knew anything, and it was all very
hush-hush.
Accordingly, although he did not identify the individuals
with whom he had spoken, John Poucher admittedly had
been trying to ascertain the identities of the Union’s support-
ers in Alaska during the last week in August. And there is
no basis for assuming, much less concluding, that his interest
in that subject had been either legitimate or benign.
D. The August 31 Termination
John Poucher had returned to Alaska during the last week
of August. So, also, had his brother James come there during
that week, apparently because the preelection representation
hearing was scheduled to open on Friday, August 27.
At the end of the immediately preceding workweek oper-
ation of the SRU 107 plant in Kenai had been shut down.
According to John Poucher Respondent laid off two or three
employees who had been working there. Kenai employees
who were not laid off were transferred to Anchorage where
they worked a second or night shift, John Poucher testified,
‘‘to get the dirt out, because we had a dead line.’’ The week-
ly production log for that week (included in R. Exh. 5)
shows a day and night shift operated plant SRU 101 in An-
chorage on Monday, August 23, on Tuesday, August 24, and
on Wednesday, August 25. Only a day shift operated SRU
101 on Thursday, August 26, and it was not operated at all
on Friday, August 27, the day that the representation hearing
opened.
At the hearing on that day two witnesses testified: James
Poucher for Respondent and Hayes for the Union. On the
following Tuesday, August 31, Hayes, as well as Frantz and
Manderson, received employee separation notices. Those no-
tices are a form with blanks to be filled in. All three notices
are completed identically, save, of course, for the name of
the person to whom issued. Thus, the issuance ‘‘Date:’’ filled
in on each is ‘‘8-31-93.’’ Of the three choices printed to de-
scribe the nature of the separation—Termination, Resignation
and Layoff—an ‘‘X’’ has been placed on the line before
‘‘Termination’’ on each notice. Also on each one, after
‘‘Reason:’’ is handwritten, ‘‘Lack of Work.’’ John Poucher
had signed all three notices.
Hayes testified he had become aware that he was being
‘‘let go’’ on August 31 when he had been given his com-
pleted notice by Sutton who ‘‘said that he was sorry that—
that it was going that way, and he didn’t have any control
over it.’’ Sutton did not contradict that account. Nor did he
dispute having also said to Hayes that the termination
‘‘wasn’t his choice.’’
Like Hayes, Frantz testified that he had learned about his
termination on August 31 when he ‘‘came into work and
Stan Sutton gave me my termination slip and shook my hand
and said that he was sorry and it was beyond his control, and
he would do anything in his power to help me find new em-
ployment.’’ In contrast, Manderson testified that he had first
learned of his termination on ‘‘Friday or Monday,’’ he ap-
peared uncertain as to which, when he had received a tele-
phone call from Sutton who said, ‘‘I was going to be termi-
nated and that I needed to come in the next day and pick
up my termination slip.’’ When he did so, testified
Manderson, he was handed the completed notice by Sutton
who ‘‘just sort of apologized and said he was sorry to have
to do this. And he—he basically said he would try to see
what he could do for me or help me out any way I needed
help if I needed help.’’
Sutton testified that in fact he had not selected any of the
three alleged discriminatees for separation from Respondent’s
employment. Instead, he testified, their selection had been
made by John Poucher. And it was Poucher who provided
the most testimony on behalf of Respondent concerning the
August 31 terminations. But, as discussed more fully in sub-
section F below, the account that he advanced is not corrobo-
rated and in several instances is contradicted by other evi-
dence, with the result that his account of the termination de-
cisions simply cannot be relied on. Indeed, those matters
serve to support the impression that I formed, as he testified,
that John Poucher was not being candid. Nonetheless, some
aspects of his testimony about the termination are worth not-
ing at this point.
First, he testified that the decision had been ‘‘to lay off,
not terminate’’ three individuals. Second, he testified that the
decision regarding who would be selected had been made by
Sutton: ‘‘I asked Stan Sutton who we’re going to lay off, not
terminate, because we don’t have enough work. I said we
need to pick three people,’’ and ‘‘I asked Stan what he pro-
poses.’’ Third, Poucher testified that his asserted conversa-
tions with Sutton had occurred ‘‘on Thursday, just before the
27th—that might be—I think it’s the 26th—I discussed with
Stan the situation in Anchorage.’’ Fourth, Poucher admitted
that he had prepared the three separation notices, but testified
that he had done so because ‘‘it was Friday morning and the
crew was coming in to work, and Stan was nowhere to be
found at the time. And we weren’t going to be processing
that day, and so I wrote up the slips.’’ That reference to
‘‘Friday morning’’ cannot be regarded as a mere slip of the
tongue, for John Poucher went on to testify, ‘‘And I’m not
sure when Stan verbally talked to each one of the three peo-
ple, Hayes, Manderson, and Frantz. I assumed it was all on
Friday.’’
E. The Offers to Return to Work
As described in the Statement of Case above the charges
in Cases 19–CA–22922–1 through 19–CA–22922–3 were
filed on September 1. In early October then-Division Coordi-
nator Johnson telephoned Manderson. Johnson testified that
during their conversation he had asked Manderson ‘‘if he
was interested in going back to work.’’ Manderson testified
that Johnson had inquired, ‘‘if I was ready to come back to
work or if I wanted to come back to work.’’ Both Johnson
and Manderson testified that the latter had asked a series of
questions concerning a return to work and that Johnson had
been unable to answer any of them. Thus, Manderson testi-
fied that he had asked, ‘‘[W]hat I would be getting paid,
what position I’d be coming back as, and where I’d be work-
105CLEANSOILS, INC.
4 I place no reliance on Johnson’s further testimony that he had
told Frantz that day that James Poucher had said that Frantz nor
Hayes nor Manderson would be rehired by Respondent. Frantz did
not testify that such a statement had been made to him by Johnson
and I have no doubt that had such a statement actually been made
to him Frantz would have remembered and testified about it.
ing.’’ Similarly, Johnson testified that Manderson had asked,
‘‘[W]hat would his wages be, what would he be coming
back as, how long would it last, those types of questions.’’
Because Johnson did not know the answers he promised to
find them out from Watling or to have the latter call
Manderson to provide them. In fact Watling did call
Manderson. But there is a disparity between their accounts
of a portion of that conversation.
According to Manderson, save for the job or position to
which he would be assigned, Watling had been unable to an-
swer Manderson’s other questions. Which were where
Manderson would be working, the shift on which he would
be working, and how much he would be paid. Regarding
those questions, testified Manderson, Watling said, ‘‘[T]hat
those answers would have to come from Jack Poucher. And
he said he would try to get in touch with Jack, and then find
out the answers to those questions and then give me a call
back the next day.’’ Watling did not do so on that day, how-
ever, nor on any subsequent one. Manderson testified that
‘‘when he said he was going to call me back, I took him at
his word,’’ and so never attempted to initiate a call to
Watling thereafter.
Concerning the job or position that Manderson testified
that Watling had specified during their telephone conversa-
tion, according to Manderson, then classified as a laborer,
Watling had said, ‘‘I would come back running a loader.’’
It is not disputed that loader operator is a higher rated classi-
fication than laborer and, testified Manderson, ‘‘I remember
saying that I wouldn’t come back and run the loader full-
time on a laborer’s hourly—hourly wage.’’ Manderson ex-
plained that he knew of no one who operated a loader at a
laborer’s pay rate. That explanation is not contradicted by
any other evidence.
Watling contested only that portion of Manderson’s de-
scription of their telephone conversation pertaining to the job
or position discussed. He denied having said that Manderson
would return as a loader operator. For, according to Watling,
Respondent’s need had been for more laborers and he had
told as much to Manderson during their telephone conversa-
tion. Moreover, testified Watling, Manderson had said,
‘‘[T]hat he wanted a raise, he pretty much told me that that
was his condition for coming back and he wasn’t interested’’
in returning at his former pay rate. As Respondent had no
intention of granting a raise for work as a laborer, Watling
testified he had seen no need to again contact Manderson
about renewed employment.
Frantz also described a fall communication regarding em-
ployment from Respondent. He testified that Watling had
called and had asked if Frantz was ready to go back to work.
When he replied that he was, testified Frantz, Watling had
said, ‘‘[T]hat he would get back with me as soon as he
talked to Jack and found out specifics.’’ According to Frantz,
after 2 days passed without further communications from Re-
spondent, he telephoned Watling who said, ‘‘[T]hat there
was going to be some work coming up and that—soon as
they were going to run, he’d give me a call and—at that
time.’’ Frantz testified that when he received no call he went
to the Anchorage plant site where Watling said, ‘‘Okay, to-
morrow morning, be here to work.’’ Watling did not deny
having spoken those words to Frantz, but testified merely
that he did not recall having said so to Frantz.
When he reported for work on the following day, Frantz
testified, Watling had not been there and so he began operat-
ing the loader. He testified, however, Ron Johnson ‘‘come
out and told me that I—I needed to get off the loader and
that I wasn’t working, because he—he had not heard any-
thing. So then I just went home.’’ Having heard nothing
from Watling for the remainder of that day, testified Frantz,
on the following day he called Watling who said, ‘‘Well, we
don’t really have any position for you right now,’’ because,
‘‘He had the crew they needed.’’
Watling testified that because he had not been there that
day, his only knowledge about the incident at the site de-
scribed by Frantz came a couple days later, from a report
that Frantz had showed up, had begun operating a loader,
and had been stopped from continuing to do so by Panel Op-
erator Michael, after which Frantz had gotten in his truck
and had driven from the site. According to Watling he had
received that report from Michael. But Michael was never
called as a witness to corroborate having made such a report
to Watling nor to give a first-hand description of his sup-
posed direction Frantz to cease operating the loader. In con-
trast, consistent with Frantz’s account, Johnson did appear as
a witness and he testified that he had been the one who had
stopped Frantz from operating the loader.4
Letters, dated November 12 and signed by John Poucher,
were sent to the three alleged discriminatees. Each stated to
the extent pertinent:
As you may be aware, we have not operated more
than one plant at a time since your termination on Au-
gust 31, 1993 due to lack of work. You should also be
aware of the down sizing in overhead and field work
forces due to major financial losses in Alaska. You
were informed that due to these losses and less work,
positions and the organization were changed. All field
salaries were reduced accordingly. As you were told
upon discharge, the crew which performed the best ac-
cording to process throughput and labor cost per ton
would be kept on to work both plants part time.
At this time we are going to operate both plants as
conditions permit. We cannot process the Indian job at
this time due to high moisture content. However, we
will run the other material staged, provided that a
throughput of twenty tons per hour is maintained. This
is the same policy that was applied last July and August
for SRU 101 while you worked in Anchorage.
Please report for work at the Anchorage office Mon-
day, November 15, 1993 at 8:00 a.m. You will be re-
porting to Troy Watling and will be processing soil
with SRU 101 until operations are closed for the sea-
son. You will be paid at the same hourly rate. If there
are any questions regarding this matter please contact
Troy Watling for details.
Below Poucher’s signature and title appears the following, ‘‘I
acknowledge the above and agree to return to work for [Re-
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent]. I understand that I report to Troy Watling and that
work is limited.’’ Below that appears a signature line.
All three alleged discriminatees responded to the letter.
But the response by Hayes differed from that of Manderson
and Frantz. The two employees reported on November 15 as
directed by the letter. Both of them and, also, Watling testi-
fied that the latter had said that Frantz and Manderson had
to sign copies of the letter, on the above-described signature
line, before being allowed to return to work. And all three
agreed that the two employees refused to do so. Frantz and
Manderson each testified that his refusal had been based on
the fact that the letter was false with regard to the final sen-
tence of the above-quoted first paragraph, which pertained to
what ‘‘you were told upon discharge[.]’’ Each denied that
such a statement had been made to him when he had been
terminated. And, as Frantz explained, ‘‘If I signed this, I did
not know how or what kind of repercussions there would be
on the outcome of the problem at hand.’’
According to Manderson and Frantz, their refusal to sign
had ended their interview with Watling. The latter testified,
however, that following the two employees’ refusal to sign
copies of the letter he had interrupted the discussion and had
telephoned James Poucher who had ‘‘said that it doesn’t mat-
ter if they sign it or not, they can still come back to work.’’
According to Watling he had related that information to
Frantz and Manderson and, at the same time, ‘‘told them that
we were just going to be working 40-hour weeks,’’ with no
overtime. Watling testified that the two employees replied,
‘‘[T]hat they didn’t want to work if we were only going to
be working 40 hours.’’ Frantz and Manderson each denied,
however, that Watling had ever said that there was no need
for them sign the letter as a condition of reemployment with
Respondent. They denied that there had been any change
during the conversation regarding the condition of signing
copies of the letter to return to work.
Hayes testified that he had not received his copy of the
November 12 letter until the afternoon of November 15 after
the 8 a.m. reporting time recited in it. Moreover, by that time
he had obtained employment elsewhere and felt that he need-
ed to give that employer sufficient 2-week notice before
leaving its employment. Thus, he sent his own letter to Re-
spondent, dated November 17, explaining those facts and,
also, seeking assurance from Respondent of ‘‘continued em-
ployment beyond this period.’’ By letter dated November 22
John Poucher replied that Respondent could not provide that
assurance and, as ‘‘we plan to work only one or two more
weeks as weather permits,’’ Respondent ‘‘cannot provide two
weeks notice for you and, therefore, it is your decision not
to report to work.’’
One additional employment offer was extended to Hayes,
Frantz, and Manderson. By letter to each, dated March 22,
1994, John Poucher gave notice that ‘‘We are expecting to
begin operations in Anchorage on April 6, 1994, weather
permitting.’’ The letter goes on to recite, ‘‘Please contact
Amanda in the Anchorage office before March 31 if you will
return to work. If we don’t hear from you by March 31, we
assume that you are not interested in returning to [Respond-
ent].’’ Frantz was the only alleged discriminatee who re-
sponded to that letter. He accepted employment and resumed
working for Respondent on April 6, 1994, the day before the
hearing in this matter.
F. Discussion
The General Counsel does not challenge the evidence that
Respondent’s volume of Alaska division business had de-
clined by August 31. Nor is it disputed, at least in the ab-
stract, that layoff or termination would have been an appro-
priate response to such a work decline. Although the evi-
dence shows that Respondent had followed both courses in
the past, however, there also is evidence that such a course
might not have been the one chosen at the end of August
absent the filing of the petition in the middle of that month.
Indeed, although there were post-August 31 days when no
work was performed in Respondent’s Alaska division, there
is no evidence that Respondent went so far as to terminate
any crewmembers then working there other than the three al-
leged discriminatees.
Sutton agreed that there had been very little soil in An-
chorage by the end of August and, further, that ‘‘there wasn’t
much soil in Kenai at that time either.’’ Still, he testified in
response to questioning by Respondent that had the choice
been his at the end of August, ‘‘I would have let the guys
in Kenai do the work down in Kenai and kept the guys in
Anchorage [to] do the work in Anchorage,’’ with each crew
working part-time in each location and not working when-
ever there was no soil to process at the location to which that
crew was assigned. In that way there would continue to be
a crew at each location available to process whatever soil be-
came available for processing there.
That testimony by Sutton is significant in context of Re-
spondent’s practice in Alaska. For it is undisputed that in the
past Sutton had routinely made layoff decisions: ‘‘I consulted
with Joe Singleton on that, and it was up to me who was
getting laid off. I made that decision on who I would keep
and who I’d let go.’’ Of course, by the end of August John
Poucher had, in effect, replaced Singleton. And it appears to
have been an effort to demonstrate a conformity with that
Alaska practice that led Poucher to testify, as described in
subsection D above, that he had conferred with Sutton prior
to the terminations, but that Sutton had made the termination
decision and incident selection of individuals to be termi-
nated on August 31. Yet, inasmuch as Sutton denied having
made those decisions and, further, testified that termination
was not an alternative that he would have chosen, had the
decision been his to make, there is ample basis for conclud-
ing that terminations would not have been made at all if the
practice of allowing Sutton to decide what course to choose
had truly been followed at the end of August.
Beyond the question of which alternative course of action
could have been chosen, the General Counsel argues that the
evidence does not credibly show, absent the representation
petition’s filing, that Hayes, Frantz, and Manderson would
have been selected for termination at the end of August. That
is, argues the General Counsel, the credible evidence fails to
support Respondent’s contention that each one had been a
logical selection for termination, although, in contrast, a pre-
ponderance of the evidence shows that their selection had re-
sulted from the revealed or at least suspected statutorily pro-
tected activity of each.
As described in subsection C above, Respondent is hostile
to unionization of its employees. An indication of that fact
emerges from the timing of the August 31 terminations,
which were at the beginning of the workweek immediately
following the day during which the Anchorage Crew Super-
107CLEANSOILS, INC.
5 To be sure, Respondent likely would not have violated the Act
had its termination of Hayes been actually motivated by the fact that
Hayes, a statutory supervisor, was supporting a labor organization’s
campaign to become the bargaining agent of its employees. Parker-
Robb Chevrolet, Inc., 262 NLRB 402 (1982), enfd. sub nom. Food
& Commercial Workers Local 1095 (Parker-Robb) v. NLRB, 711
F.2d 383 (D.C. Cir. 1983). Respondent never advanced that broader
basis, however, that its true reason for terminating Hayes had been
his general support for the Union’s campaign as disclosed by his ap-
pearance during the representation hearing, as the motivation for its
decision to terminate him. ‘‘The employer alone is responsible for
its conduct and it alone bears the burden of explaining the motiva-
tion for its actions.’’ Inland Steel Co., 257 NLRB 65 (1981). In con-
sequence, ‘‘mere existence of valid grounds for a discharge is no de-
fense to a charge that the discharge was unlawful, unless the dis-
charge was predicated solely on those grounds.’’NLRB v. Symons
Mfg. Co., 328 F.2d 835, 837 (7th Cir. 1964). Accord: Singer Co. v.
NLRB, 429 F.2d 172, 179 (8th Cir. 1970). Inasmuch as Respondent
has neither contended nor shown that it terminated Hayes because
of his general support for the Union’s campaign, the sole issue that
must be addressed is whether or not the evidence supports a conclu-
sion that his termination had been motivated by his appearance as
a witness for the Union during the representation hearing in violation
of Sec. 8(a)(4) and (1) of the Act.
6 The documents in that exhibit will again become significant in
connection with some challenged ballots, covered in sec. IV, infra.
So this is a good place to point out that although a date is inserted
as ‘‘Pay Date’’ in the upper left corner of the payroll registers, a
‘‘Period Ending’’ column appears above the list of personnel’s
names on each register. That latter date is a few days earlier than
the stated ‘‘Pay Date’’ in each instance, indicating that there is a gap
between the end of a pay period and the date on which persons em-
ployed by Respondent are actually paid for the payroll period.
visor Hayes had testified as the lone witness for the Union
during the representation hearing. ‘‘Timing alone may sug-
gest anti-union animus as a motivating factor in an employ-
er’s action.’’ NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354
(7th Cir. 1984).
Nor is it necessary to predicate a conclusion of animus ex-
clusively on an inference drawn from timing. For it is undis-
puted that two statutory supervisors, Shellum and O’Connor,
had warned Manderson that ‘‘Jim and Jack Poucher were
against any type of union organization trying to come in’’
and ‘‘would basically try to do anything they had to stop the
union from organizing.’’ That same attitude on the part of
the Pouchers appears to have been the basis for Watling’s
later warning to Frantz, when the latter inquired about
Watling and Richardson’s interest in supporting the Union,
that ‘‘it’d be a good idea to stay away from the whole
thing.’’
Furthermore, following the filing of the petition John
Poucher admitted that he had been ‘‘trying to pick up some
information’’ concerning the identities of the people behind
the Union’s campaign. Poucher never explained his purpose
for having done so. Consequently, he advanced no legitimate
reason, nor does the record suggest one, for having attempted
to ascertain the identities of the Union’s supporters. In light
of these considerations, a preponderance of the credible evi-
dence supports the conclusion that Respondent harbors ani-
mus toward the concept of unionization of its employees and,
as well, toward individuals who would support an effort to
become represented by a bargaining agent.
Obviously, Respondent had been aware by August 31 that
Hayes had testified for the Union during the representation
hearing.5 Indeed, it is that very temporal sequence that John
Poucher seemed to be attempting to evade when, as de-
scribed in subsection D above, he claimed that the termi-
nation decisions had been reached on Thursday, August 26,
and had been implemented as work had been scheduled to
commence on Friday, August 27. Consequently, that testi-
mony appears intended to place both the decision and its im-
plementation before the representation hearing’s commence-
ment on August 27. But, in reality, that testimony shows
only the unreliability of accounts advanced by John Poucher.
True, some support for an August 26 decision and for an
August 27 termination might appear to be provided by
Manderson’s uncertainty about whether he had learned of his
termination on a Friday or a Monday. Still, whatever facial
support that testimony might appear to afford John Poucher’s
account is dissipated not only by Hayes and Frantz’ testi-
mony that their terminations had occurred on August 31 but,
most significantly, by Respondent’s express admission, in
paragraph 5(a) of its answer to consolidated complaint, that
it ‘‘admits terminating the employment of Hayes, Frantz and
Manderson on August 31, 1993.’’ As a result there can be
no ambiguity regarding the date of the terminations. And,
therefore, there can be no hesitancy in concluding that in
claiming that the termination decision and its implementation
had been made on August 26 and 27, respectively, John
Poucher had been trying to construct a defense on the basis
of an untrue recitation of facts.
There is some basis for concluding that even prior to Au-
gust 27 Respondent had known that Hayes, Frantz, and
Manderson were involved with the Union. As described in
subsection C above, John Poucher admittedly had attempted
to ascertain the identities of the petition’s supporters. Al-
though Poucher claimed that ‘‘nobody was talking’’ and that
he had not questioned Watling, Frantz credibly testified that
he had informed Richardson, as well as Watling, of the iden-
tities of the individuals who had signed up for the Union. Al-
though he disputed the means and place where that informa-
tion had been disclosed to him by Frantz, Watling never dis-
puted that such information had been related to him and
Richardson by Frantz. And Richardson never appeared as a
witness and denied having been told as much by Frantz.
Even if Watling, in fact, had not conveyed that informa-
tion to John Poucher the latter concededly had questioned
some persons about the petition’s supporters. Because he ob-
viously did not question the Anchorage crewmembers, his
questions must have been directed to the crew then working
in Kenai. An examination of payroll registers, included in the
record as General Counsel’s Exhibit 11, discloses that Rich-
ardson had worked 72 hours for Respondent during the 2-
week pay period ending September 3.6 John Poucher never
specifically denied that Richardson had been one of the indi-
viduals from who Poucher had been ‘‘trying to pick up some
information[.]’’
Even had John Poucher not been able to learn the identi-
ties of the Union’s supporters prior to August 27 Hayes did
testify for the Union at the hearing that day. Moreover, as
discussed in subsection C above, the petition revealed that to
make an adequate showing of interest in a six-person unit
more than one unit member had to be supporting the Union.
The only other two Anchorage crewmembers at that time
were Frantz and Manderson. Given Hayes’ appearance as the
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 As recited in subsec. B above, by August 31 Turner had last
worked for Respondent during the workweek ending July 23. Thus,
he could not have been laid off during the workweek ending August
20. He is, however, included here simply because of Respondent’s
assertions and for purposes of analyzing its advanced defense.
Union’s witness on August 27, Respondent could reasonably
infer or suspect at that point that one, or perhaps both, of
those other two crewmembers had supplied support for the
petition, especially as John Poucher had been questioning the
Kenai crew, none of whom, so far as the evidence shows,
had been supporting the Union. Of course, termination moti-
vated by suspicion of union activity is no less unlawful than
termination motivated by actual knowledge of it. That is,
‘‘the Act is violated if an employer acts against the employ-
ees in the belief that they have engaged in protected activi-
ties, whether or not they actually did so.’’ Henning &
Cheadle, Inc. v. NLRB, 522 F.2d 1050, 1052 (7th Cir. 1975).
‘‘Proof of an unfair labor practice does not require proof of
actual union activity . . . .’’ NLRB v. Ritchie Mfg. Co., 354
F.2d 90, 98 (8th Cir. 1965).
In fact, a preponderance of the evidence does establish that
Respondent had terminated Hayes because of his appearance
as the Union’s witness at the representation hearing and, as
well, Frantz and Manderson because they supported, or likely
supported, the Union’s effort to become the bargaining agent
of Respondent’s employees. That is shown by Respondent’s
animus toward unions and toward employees who supported
them. It is shown by the termination of Hayes at the begin-
ning of the workweek immediately following the day on
which he testified. It is shown by the evidence of likely ac-
tual knowledge, as a result of John Poucher’s admitted ques-
tioning, of Frantz and Manderson’s union support, or at least
of suspicion that they were union supporters based on the pe-
tition’s disclosure and their site supervisor’s appearance dur-
ing the representation hearing.
It is further shown by certain other factors. Rather than
permit Sutton to select an appropriate personnel action to be
taken to meet the declining workload, as had been the prac-
tice before, John Poucher took it on himself to decide on ter-
mination and to select the individuals who would be termi-
nated.
Further, even though John Poucher testified that the soil
to be processed in Anchorage had been depleted after conclu-
sion of the day shift on Thursday, August 26, Respondent
took no personnel action based on that depletion, John
Poucher’s unreliable assertions to the contrary notwithstand-
ing, until after Hayes had testified at the representation hear-
ing. That is no one was separated on Friday, August 27, even
though soil to be processed had been supposedly depleted
during the preceding day and there was no work for anyone
on Friday. In fact, it appears that on that day Respondent had
simply followed the same course as Sutton had testified that
he would have followed had the decision been left to him,
which was to simply schedule no one for work until enough
soil became available to process efficiently. Indeed, that is
what Respondent also did during most of the following
workweeks. Yet, in contrast to other employees who then
were working, Hayes, Frantz, and Manderson were termi-
nated instead of being merely left unscheduled to work.
The termination were effected abruptly. That is by simply
not scheduling work on Friday, August 27, Respondent sud-
denly terminated the discriminatees on August 31 following
the representation hearing. ‘‘The abruptness of a discharge
and its timing are persuasive evidence as to motivation.’’
NLRB v. Montgomery Ward & Co., 242 F.2d 497, 502 (2d
Cir. 1957), cert. denied 355 U.S. 829 (1957). Accord: NLRB
v. Sutherland Lumber Co., 452 F.2d 67, 69 (7th Cir. 1971);
NLRB v. Elias Bros. Big Boy, Inc., 325 F.2d 360, 366 (6th
Cir. 1963); United Dairy Farmers Coop. Assn. v. NLRB, 633
F.2d 1054, 1062 (3d Cir. 1980). Moreover, when they were
informed of their terminations, not one of the discriminatees
was given a reason for being terminated, a further indicia of
unlawful motivations.
In fact, the very absence of a credibly advanced defense
by Respondent for those terminations is further evidence of
unlawful motivations. And, of course, that unreliability oblit-
erates any basis for satisfaction of Respondent’s burden of
showing that the terminations would have occurred in any
event, notwithstanding Hayes’ appearance as a union witness
during the representation hearing and notwithstanding Frantz
and Manderson’s support or seeming support for the Union.
As pointed out above, an unreliable sequence of events
supposedly leading to the termination decision on Friday,
August 27, was advanced by John Poucher, Respondent’s
principal witness. His testimony pertaining to the substantive
reasons for selecting each of the three discriminatees fares no
better when analyzed in connection with other evidence in-
cluding some presented by Respondent itself.
According to Poucher one criterion for selection had been
seniority. Sutton testified, however, that seniority ‘‘never was
followed before’’ in selecting personnel for separation from
Respondent’s employment. That testimony by Sutton was
never contradicted. In fact, it appears to have been supported
by a layoff of two laborers that occurred during the work-
week ending on August 20.
As John Poucher would have it on August 31 Manderson
had been the least senior laborer then employed in its Alaska
division. That conclusion rests on the evidence that although
he had been employed by Respondent since mid-1992
Manderson had been classified as a laborer only since late
July of the following year. But that would also mean that
Manderson had less seniority as a laborer than Mike Turner
and Greg Garrison, two Kenai crewmembers whom Poucher
testified were laid off prior to transferring the remaining
Kenai crew to Anchorage to work a second shift during the
week of August 23 to 27.7 Yet, according to Respondent’s
Exhibit 7, Turner had been hired February 16 and Garrison
on March 24, in both instances, before Manderson had be-
come classified as a laborer.
Obviously their selections would not have been occasioned
by transfer of the Kenai crew to Anchorage. ‘‘All the Alaska
people travel between work sites,’’ testified John Poucher.
Frantz agreed that crewmembers had been moved between
the Kenai and Anchorage sites. Of course, that is what hap-
pened to the remaining Kenai crew for the workweek of Au-
gust 23 to 27. Accordingly, the fact that the less senior la-
borer Manderson would have been allowed to continue work-
ing during that week, while more senior laborers had been
laid off, supports Sutton’s testimony that seniority had never
been a criterion for selecting employees for separation.
Furthermore, an added problem arose for Respondent from
its claim that it had calculated Manderson’s comparative se-
niority from the time that he had become classified as a la-
borer. If that truly had been its practice, then Watling, not
109CLEANSOILS, INC.
Hayes, should have been selected as the shift supervisor for
termination on August 31. That is so because, as set forth
in subsection B above, it is undisputed that Hayes had been
classified as a site supervisor since mid-1992, whereas
Watling testified that he had been a site supervisor only
‘‘[s]ince February of last year [1993].’’ But then, of course,
Watling had not testified on a union’s behalf in a representa-
tion proceeding.
Finally, no mention whatsoever is made of seniority as a
termination criterion in Respondent’s November 12 letter that
purports to recite the reason advanced to the discriminatees
on August 31 for their terminations. In light of that and the
foregoing other considerations, there is no basis for crediting
Respondent’s assertions that seniority had been one criterion
for its termination selections. And the fact that Respondent
has chosen to now advance it as a supposed reason gives rise
to an inference that Respondent is attempting to construct a
defense because no lawful one is available to it.
A similar conclusion is warranted based on scrutiny of the
evidence pertaining to Respondent’s other defense concern-
ing better production by the Kenai crew than by the Anchor-
age one. It is undisputed that at the time they were notified
of their terminations not one of the discriminatees had been
told anything about less favorable comparative production in
Anchorage. To the contrary, so far as the record discloses,
that reason was not injected until after the charges pertaining
to those terminations had been filed and Respondent was
called on to provide a defense for effecting them.
Beyond that, Frantz acknowledged that ‘‘our costs [in An-
chorage] were higher than all [Respondent’s] other plants
system-wide.’’ Yet, simple numerical comparisons, of them-
selves, do not fully address the question of which crew per-
formed better. It is undisputed that throughput and, concomi-
tantly, labor cost per ton, is affected by moisture content of
soil, as well as by extent of its contamination. For example,
Sutton testified, ‘‘Like your contamination, if [the soil’s]
highly contaminated, you can’t run it through as fast, you got
to run it through slower.’’ And Hayes testified,
[M]oisture does a couple of things. It—it—it masks
your—your—your scanner eyes and shut your burner
down and gets you out of emissions in a heartbeat.
That’s one of the—that’s probably the primary—one of
the primary things. But also, the moisture is just—takes
more fuel to burn as well on the front end to—to drive
off that moisture before it can even start drying the ma-
terial—the soil. But basically, your—your moisture—it
does mask the scanners, it’ll shut the system down, and
you have to start over again, at least on the afterburner.
At no point did Respondent challenge that testimony by
Hayes. Indeed, in his November 12 letters, quoted in sub-
section E above, John Poucher singled out ‘‘high moisture
content’’ as the reason for not ‘‘process[ing] the Indian job
at this time.’’
Nor, more specifically, did Respondent contest Sutton’s
testimony that,
[P]articularly with one-oh-one, and that afterburner
doesn’t accept moisture very well. It just doesn’t seem
to handle it. That particular one, you can notice a
seven-percent moisture to 15-percent moisture is—is—
would cut your production probably in half or—or even
worse than that.
Consequently, without evidence pertaining to extent of mois-
ture and contamination, which Respondent never provided, it
is not possible to reliably conclude from comparative
throughput, alone, that the Kenai crew actually did perform
measurably better than Hayes, Frantz, and Manderson in An-
chorage.
In fact, Sutton, who had been in overall charge of both
sites through August, testified, ‘‘Performance, they were
both—as far as I was concerned, both sites were equal on
their performance.’’ And during the period when both crews
worked in Anchorage (Monday through Wednesday, August
23 through 25) although the Kenai crew’s performance had
been slightly better, John Poucher evaluated the two crews’
performances overall as ‘‘pretty equal.’’
To be sure, testifying as a witness for Respondent, Watling
seemed to be claiming that the Kenai crew had performed
better than had the one in Anchorage. That testimony should
not be unexpected, of course, given Watling’s inherent self-
interest as the shift supervisor for the Kenai crew. Even so,
his conclusion was phrased equivocally. For example, asked
if he thought he could have improved production on the SRU
101 plant during July and August Watling answered,
‘‘Yeah,’’ but then added hastily, ‘‘I would think so.’’ (Em-
phasis added.)
As he testified Watling appeared generally to be trying to
tailor his testimony so that it would be as favorable for Re-
spondent as possible. As a result he did not appear to always
be testifying candidly. One illustration of the trouble that he
thereby created for himself, and for Respondent, emerged
when he advanced an account regarding the situation in An-
chorage in mid-August or after August that bears comparison
with John Poucher’s description of the situation there during
his first visit to Alaska, as set forth in subsection B above.
Inasmuch as there is no evidence that Watling had worked
in Anchorage during the summer before the last week in Au-
gust presumably he was describing a supposed situation there
from that last August week.
There were lots of things that were, I guess jerry-
rigged so that they would worked [sic]. But they could
have caused a real problem if somebody would’ve, you
know, I mean, it could’ve caused a problem pretty eas-
ily. As far as the wiring for our propane pumps, the
connectors weren’t proper—properly—well, they had
electrical tape instead of a plug.
Yet, earlier that month, or in late July, John Poucher had
supposedly conducted an examination of the SRU 101 plant,
accompanied by Sutton, and had ‘‘got[ten] everything
repaired[.]’’ If so, then seemingly there could have been no
problems with that plant for Watling to discover shortly
afterward. For Poucher advanced no explanation of any prob-
lems that could possibly have arisen during the interim be-
tween his first Alaska visit and Watling’s transfer to Anchor-
age. To the contrary, as quoted in subsection B above, John
Poucher testified that after his adjustments to SRU 101 that
plant ‘‘ran relatively smoothly’’ through August.
A correspondence of terminology also should not pass
without some notice. As quoted above, Watling claimed that
he had observed, ‘‘lots of things that were, I guess jerry-
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rigged,’’ and John Poucher claimed that a few weeks earlier
he had observed ‘‘several situations that were, I’d say
jimmy-rigged, I guess.’’ Use of two similar terms, neither of
which is commonly encountered in discourse, raises some
suspicion that these two witnesses were working from a com-
mon script, particularly as they were testifying to events sup-
posedly separated in time to achieve a common result. Even
if not, however, had John Poucher truly encountered
‘‘jimmy-rigged’’ conditions and repaired them, as he testi-
fied, then there seemingly should have been no ‘‘jerry-
rigged’’ conditions for Watling to discover shortly after John
Poucher had done so. At least, not absent additional particu-
larization of those supposed conditions, which has not been
provided by Respondent.
It is not disputed that during August Watling had an-
nounced, with respect to the Union, he desired to ‘‘stay away
from the whole thing,’’ and, of course, he remained em-
ployed by Respondent on the date of the hearing in this mat-
ter. Given my impression formed as he testified, and the
foregoing considerations that tend to confirm that impression,
those two factors further reinforce my conclusion that
Watling cannot be credited. Nor, as concluded above, do I
credit John Poucher. As a result, Respondent has failed to
advance a credible defense and, in consequence, has failed
to satisfy its burden in the face of a prima facie showing of
unlawful motivations for the August 31 terminations.
In sum, given the evidence of Respondent’s hostile attitude
toward unionization of its employees, the evidence of Hayes’
activity in testifying for the Union during a representation
hearing conducted by the Board and of Frantz and
Manderson’s activity supporting the Union, the evidence of
Respondent’s actual knowledge of Hayes’s activity during
the hearing and of its actual knowledge or, at least, likely
suspicion that Frantz and Manderson supported the Union,
the evidence of the terminations’ timing in relation to the
first day of the representation hearing, and the unreliability
of Respondent’s defense to those terminations, I conclude
that a preponderance of the credible evidence establishes that
Hayes had been terminated in violation of Section 8(a)(4)
and (1) of the Act and that Frantz and Manderson had been
terminated in violation of Section 8(a)(3) and (1) of the Act.
‘‘All discriminatees have an absolute legal right to restora-
tion to their former status and pay.’’ (Fn. omitted.) Hydro-
Dredge Accessory Co., 215 NLRB 138, 139 (1974), that
means that they are ‘‘entitled to an unequivocal and uncondi-
tional offer of reinstatement.’’ K & E Bus Lines, 255 NLRB
1022, 1022 (1981). That is the reinstatement offer ‘‘must be
specific, unequivocal, and unconditional in order to toll back-
pay and satisfy a respondent’s remedial obligation.’’ Holo-
Krome Co., 302 NLRB 452, 454 (1991), enf. denied on other
grounds 947 F.2d 588 (2d Cir. 1991). And ‘‘an offer is in-
sufficient . . . if it does not restore seniority or other bene-
fits accrued by the employee; if the job which he is offered
is temporary; if it is conditioned upon the employee relin-
quishing his unfair labor practice claim; [or] if the employee
has insufficient time to accept the offer.’’ Morvay v.
Maghielse Tool & Die Co., 708 F.2d 229, 232 (6th Cir.
1983), cert. denied 464 U.S. 1011 (1983), cited in the con-
text of reinstatement offers made under the Act, NLRB v.
Seligman & Assoc., 808 F.2d 1155, 1159 (6th Cir. 1986).
When an invalid offer of reinstatement is made a negative
response to it is of no consequence. ‘‘It is thus incumbent
on the Respondent to extend to the injured employee a
facially valid offer of reinstatement before the burden shifts
to the injured employee to accept or reject the offer.’’ Con-
solidated Freightways Corp., 290 NLRB 771, 773 (1988).
These principles, set forth in this and the preceding para-
graph, govern disposition of Respondent’s post-August 31
communications with Hayes, Frantz, and Manderson, as de-
scribed in subsection E above.
With respect to the pre-November 12 oral communications
with Manderson and Frantz, Respondent’s officials, Johnson
and Watling, did no more than inquire whether those two
discriminatees were willing to return to Respondent’s em-
ployment. Thus, Johnson asked merely whether Manderson
‘‘was interested’’ in, or ‘‘was ready’’ to, return to work. A
similar question was put to Frantz by Watling. Yet, ‘‘an in-
quiry as to whether an employee is interested in employment
[does not] constitute an unconditional offer.’’ Montgomery
County MH/MR Emergency Service, 239 NLRB 821, 827
(1978).
Not only were those communications facially insufficient
as reinstatement offers but Respondent’s conduct in connec-
tion with them nullified whatever partial validity might oth-
erwise be attributed to them. When Manderson inquired
about the terms of resumed employment both Johnson and
Watling promised to find out the answers and to call
Manderson to inform him of the answers to his questions.
But neither official did so. Although Watling claimed that he
had not done so because Manderson had demanded a raise
as a condition to returning, Manderson credibly testified that
he had requested a raise solely because Watling had said that
Manderson would be reemployed in a higher rated position
than that of laborer, the one occupied by Manderson when
he had been terminated on August 31. Accordingly,
Manderson imposed no condition on returning to work for
Respondent as a laborer. He simply sought a raise if he were
to be employed in a different position compensated ordi-
narily at a higher rate of pay. Inasmuch as Respondent never
did answer Manderson’s other employment related questions
it cannot be said that Respondent had offered to fully restore
him to the position from which he had been terminated un-
lawfully.
Similarly, Frantz never was contacted again after he ex-
pressed to Watling interest in resuming employment with Re-
spondent. When Frantz pursued the matter, by telephone and
by visiting Respondent’s Anchorage site, Watling told him to
report. But when Frantz did so Watling was nowhere to be
located and, eventually, Frantz was told not to work. Later
he was told by Watling that there was no work for him. In
view of these events, there is no basis for concluding that
prior to November 12 a genuine offer of reinstatement had
been made to either Frantz or Manderson.
Nor can it be concluded that reinstatement had been truly
offered by Respondent’s November 12 letter. That letter does
no more than invite the discriminatees to ‘‘report for work’’
at 8 a.m. on November 15. At no point in it is there a spe-
cific statement that reinstatement is being offered. Nor can
it be said that reinstatement is naturally implied from the let-
ter’s language. Instead, the best that can be said is that the
letter is offering mere reemployment.
Although not always observed by language sometimes uti-
lized in decisions, there is a recognized distinction between
the concept of reinstatement and that of reemployment. See,
111CLEANSOILS, INC.
8 Lest there be doubt, I do not credit Watling’s assertions that he
withdrew the signature condition during his November 15 interview
with Frantz and Manderson.
e.g., Colorflo Decorator Products, 228 NLRB 408, 420
(1977), enfd. mem. 99 LRRM 3327 (9th Cir. 1978), and
cases cited therein. A mere offer of reemployment does not,
either expressly or inherently, remedy all consequences of
previously committed unfair labor practices. That is, it does
not of itself correct the effect on resumed employment status
of the hiatus in tenure resulting from an unlawful termi-
nation. For it leaves unaddressed the effects of that hiatus on
such employment terms as seniority and tenure related bene-
fits. In consequence, an offer only of reemployment deprives
discriminatees of statutorily required assurance of full ‘‘res-
toration to their former status[.]’’ Hydro-Dredge Accessory
Co., supra. See generally Golden State Bottling Co. v. NLRB,
414 U.S. 168, 188 (1973); and Oil Workers v. NLRB, 547
F.2d 575, 588, 589 (D.C. Cir. 1976), cert. denied 431 U.S.
966 (1977).
At first blush, there might appear to be merit to an argu-
ment that discriminatees can secure answers to any questions
arising from offers of mere reemployment through inquiry
about those subjects directed to the offering respondent. Yet,
it is the respondent, not the discriminatees, who engaged in
unlawful conduct. As the wrongdoer it bears the burden of
restoring the status quo and, concomitantly, of offering to do
so. As the targets of unfair labor practices it hardly is equi-
table to impose on discriminatees a burden of going hand in
hand to ask if a respondent who discriminated against them
truly intends to abide by its statutory obligation of offering
full reinstatement. In contrast, it is no great burden to require
that respondents plainly state what they intend when offering
employment to discriminatees. That is plainly state that it is
‘‘reinstatement,’’ and not something else, that is being of-
fered. Allowing a lesser notification to satisfy the reinstate-
ment obligation creates uncertainty for discriminatees, forces
them to undertake a burden of correcting ambiguity created
by respondents whose own unfair labor practices have al-
ready penalized those discriminatees, and creates an unneces-
sary risk of loss by those discriminatees of remedial rights
to which they are entitled.
Beyond the words of the November 12 letter, when
Manderson and Frantz did respond on November 15, they
were told that even their possibility of reemployment was a
conditioned one—conditioned on each employee signing a
copy of the November 12 letter. As pointed out in subsection
E above, that letter contained an indisputably untrue state-
ment about what had been said to the discriminatees when
they had been terminated.8 That was at least one reason that
the two discriminatees had refused to sign copies of the let-
ter.
As set forth above, a reinstatement offer is not valid ‘‘if
it is conditioned upon the employee relinquishing his unfair
labor practice claim[.]’’ Morvey v. Maghielse Tool & Die,
supra. To be sure, Respondent’s condition did not rise to that
level. But it did require signatures indicating agreement to an
untrue fact that fortified Respondent’s defense to the
discriminatees’ charges. If they had signed the discriminatees
likely could have undermined their own ability to prevail on
those charges.
A respondent is no less precluded from accomplishing by
indirection that it can not accomplish directly. That is a rein-
statement offer is no less invalid because, rather than condi-
tioning it on total withdrawal of a charge, a respondent con-
ditions it on admissions of untrue fact that would diminish
employees’ ability to obtain a fair determination of their
charges’ merits, one untainted by extracted admissions to ad-
verse facts that are not true.
Hayes received the November 12 letter too late to comply
with the reporting date and time specified in it. Had he been
able to do so, however, there is no basis for concluding that
he would have fared differently then did Frantz and
Manderson and would not have been required to sign a copy
of the November 12 letter. Consequently, as the letter is not
truly an offer of reinstatement and was tainted by the condi-
tion that it be signed to secure reemployment, no burden
shifts to Hayes to accept or reject the letter’s offer. As a re-
sult, subsequent events involving Hayes and Respondent,
with regard to that letter, are not material.
Finally, with respect to Respondent’s letter of March 22,
1994, like the pre-November 12 oral communications with
Frantz and Manderson, that letter makes no offer whatsoever
to the discriminatees. It merely notifies them that Respondent
expects to begin operations in Anchorage and directs them
to ‘‘contact Amanda . . . before March 31 if you will return
to work.’’ There is no promise, express or implied, that
should any of them follow that direction he will be allowed
to resume working for Respondent.
Even if it be concluded that the letter somehow naturally
implies that employment will follow from such a ‘‘contact,’’
the letter does not state, nor imply, that it is reinstatement
that is being offered. At best, as with the November 12 let-
ter, only reemployment can be implied from the terse word-
ing of the March 22, 1994 letter. Indeed, although Frantz did
respond and did resume working for Respondent there is no
evidence that he had actually been reinstated as opposed to
merely reemployed.
It should not be disregarded that at the time of receiving
the letter of March 22, 1994, none of the discriminatees
could know whether a response would generate even reem-
ployment, as turned out to be the fact for Frantz. Viewing
the matter from the discriminatees’ perspective on receiving
those letters there was ample basis for them to reasonably
believe that the letter was just another bad-faith effort by Re-
spondent to toy with them concerning resumed employment.
Manderson had orally expressed interest in returning to work
prior to November, but never received the promised answers
to his questions and, indeed, never received any further tele-
phone communications from Respondent after the one in
which he had expressed that interest. Frantz did follow up
on a similar communication and was directed to report, only
to be hustled from work at the site and then told that there
had not truly been a job for him. When he and Manderson
reported as specified in Respondent’s November 12 letter
they were told that they could return to work, but only on
condition that they sign letters containing an untrue statement
pertaining to the circumstances under which they had been
terminated.
In sum, through its own earlier displays of bad faith in
connection with resumed employment by the discriminatees
Respondent fouled its own nest of credibility with them by
March 22, 1994. Its letters of that date made no promise
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whatsoever of either reinstatement or even reemployment
should one or more of them ‘‘contact Amanda.’’ Nothing in
the letters affords any assurance that employment would fol-
low from such ‘‘contact.’’ Neither the wording of the letters
nor the circumstances in which they had been received, 2
weeks before the hearing on their charges was scheduled to
commence, afforded any assurance that the discriminatees
would not once again be confronted with nonresponse or
with conditions on reemployment. In these circumstances,
there is no basis for concluding that the March 22, 1994 let-
ters constituted a specific, unequivocal, and unconditional
offer of reinstatement sufficient to bar Hayes and Manderson
from reinstatement offers, because they did not respond, as
a result of this proceeding. Although Frantz was reemployed,
he has not yet received the statutorily required offer of rein-
statement.
IV. THE CHALLENGED BALLOTS
Twelve ballots were challenged during the November 9
representation election. Three of those were cast by Frantz,
Manderson, and Hayes. As it is conceded that the latter had
been a statutory supervisor the challenge to his ballot is sus-
tained. Because I concluded in section III above that Frantz
and Manderson had been unlawfully discharged on August
31 the challenges to their ballots are overruled.
Two ballots, cast by Steven Sand and Thomas Ries, were
challenged by the Union on the basis that neither voter is
‘‘an Alaska resident.’’ That question was addressed and re-
solved, however, by the Regional Director in his decision
and direction of election issued on October 7.
[T]o some extent it appeared that [the Union] was con-
tending that only permanent Alaska residents should be
included in the unit. However, [the Union]’s last word
on the subject was that it wanted to represent only
those who were ‘‘residents working Alaska . . . doing
work in Alaska.’’ Therefore, irrespective of the record
discussion, it appears that [the Union] was not attempt-
ing to define the unit in terms of state residency, but
merely asserting that it had no wish to represent em-
ployees of [Respondent] who are employed in states
other than Alaska, such as those formerly employed in
Alaska who have since transferred to other states.
Because it appears that the Regional Director concluded
that Alaska residency would not be a criterion to eligibility,
the fact that Sand and Ries may not have been Alaska resi-
dents does not, on that basis, bar them from participating in
the election and having their ballots counted.
The Regional Director’s decision continues by pointing to
a distinction between so-called ‘‘temporary’’ and ‘‘perma-
nent’’ employees, with the distinction being that the former
are Alaska residents laid off when there is no work available
at Respondent and with the latter being employees ‘‘who de-
rive their status as ‘permanent’ from their overall employ-
ment with [Respondent]; rather than being laid off, as are
employees who remain in Alaska, they are relocated to other
states,’’ with ‘‘no better (or worse) prospects of being re-
called to Alaska than do those hired as ‘temporaries’ who
have being laid off.’’ Regarding that distinction, the Regional
Director concluded that ‘‘the appropriate unit of all employ-
ees employed by [Respondent] at its Alaska facilities nec-
essarily includes both permanent and so-called ‘temporary’
employees, without distinction.’’
As a result, eligibility of Sand and Ries depends on their
employment in the unit during the eligibility period. Regard-
ing that question, received as General Counsel Exhibit 11,
according to the General Counsel’s representation when of-
fering it, ‘‘is a series of [A]utopay payroll registers, starting
with the pay date of September 9th and going through De-
cember 30, 1993.’’ Those are the documents referred to in
subsection III,F above and explained further in footnote 6. So
far as the evidence shows those records list all employees
employed in Alaska by Respondent during the periods en-
compassed by them. At least, no party has offered additional
pages for the period, nor represented that any others existed.
Omitted completely from those registers are the names of
Sand and Ries, although Respondent’s Exhibit 7 shows that
both had spent periods working in Alaska prior to August 20.
Respondent argues in its brief that Sand had ‘‘returned to
work in Alaska on October 24, 1993 for work on the Indian
project’’ and, further, that Ries had ‘‘worked for [it] during
the payroll period immediately preceding October 7 [and] re-
turned to Alaska on the Indian project on October 25, 1993.’’
Neither of those arguments, however, is supported by inspec-
tion of the payroll registers for those periods. That is, the
name of neither man is listed on the registers for the pay
dates of October 21 (covering two 2-week pay period ending
October 15), of November 4 (covering the 2-week pay period
ending October 29), nor of November 18 (covering the 2-
week pay period ending November 12). Furthermore, John
Poucher’s November 12 letters, quoted in subsection III,E
above, state that ‘‘We cannot process the Indian job at this
time’’ and there is no evidence that Respondent had been
able to do so prior to November 12. In those circumstances
it is not possible to conclude that Sand and Ries had been
working for Respondent during the preelection period.
No evidence has been presented to show that Sand or Ries
had been on layoff, awaiting recall, during the eligibility pe-
riod. Consequently, there is no basis for concluding that ei-
ther voter had been eligible to vote in the election. Similarly,
Respondent states that neither Randall Roe nor Wesley D.
Faulkner had been employed during the eligibility period,
and there is no evidence to the contrary. Therefore, I sustain
the challenges to the ballots of Steven Sand, Thomas Ries,
Randall Roe, and Wesley D. Faulkner.
A like result is warranted with regard to the challenged
ballots cast by Joe Pete Smith and Robert D. Hughes. In its
brief Respondent states that Smith had not been hired until
after October 7. General Counsel’s Exhibit 11 does not list
his name until the pay period of October 30 through Novem-
ber 12, that is, after commencement of the eligibility period.
Moreover, in its brief Respondent represents that Robert D.
Hughes had been ‘‘permanently separated’’ early in 1993
and his name does not appear on any register in General
Counsel’s Exhibit 11. Accordingly, I sustain the challenges
to the ballots of Joe Pete Smith and Robert D. Hughes.
Respondent’s brief also asserts that Terika Kons had
‘‘worked during the period immediately preceding October 7,
1993.’’ Yet, that name does not appear on Respondent’s Ex-
hibit 7 as having been employed in Alaska prior to August
20. And it is not one of the names appearing on the October
7 payroll register for the pay period ending October 1, ‘‘the
payroll period ending immediately preceding the date of issu-
113CLEANSOILS, INC.
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ance of the notice of election,’’ as prescribed for eligibility
by the Regional Director’s direction of election. Con-
sequently, although Kons did work 16 regular and 4 overtime
hours during the succeeding pay period, the one ending Oc-
tober 15, that is after the payroll period specified for eligi-
bility and, consequently, I sustain the challenge to the ballot
of Terika Kons.
Regarding Thomas Knack, Respondent’s Exhibit 7 states
that he had worked in Alaska for Respondent since Septem-
ber 16, 1992. During the workweek ending August 20 he
worked 40 hours for it, presumably in Kenai inasmuch as
only Hayes, Frantz, and Manderson had been then working
in Anchorage. As stated in subsection III,F above, by the end
of that week Respondent laid off all Kenai crewmembers,
save for those relocated to Anchorage. Accordingly, it is a
fair inference that Knack had been laid off then, even though
his name was not specifically mentioned in the sparse testi-
mony describing that Kenai layoff. Moreover, he resumed
working during the payroll period ending November 12. That
had been the one during which the election had been con-
ducted. Apparently, he worked during that entire pay period,
for the payroll register shows that he worked 80 regular and
60 overtime hours during it.
In sum, it appears that from August 20 through October
29 Knack had been on temporary layoff and, thus, is eligible
under the Regional Director’s above-quoted description of
Respondent’s Alaska practice, and his direction of eligibility
for ‘‘employees who did not work during that [payroll period
ending immediately preceding the date of issuance of the no-
tice of election] because they were . . . temporarily laid
off.’’ Knack appears to have been such an employee and, ac-
cordingly, I overrule the challenge to the ballots that he cast.
Finally, John Poucher identified Mike Turner as one of the
Kenai employees laid off during the workweek ending Au-
gust 20. As pointed out in footnote 7, however, that cannot
be true because, as set forth in subsection III,B above, prior
to August 20 he had last worked during the workweek end-
ing July 23. Yet, General Counsel’s Exhibit 11 shows that
Turner had returned to work in Alaska for Respondent during
the pay period ending October 15, when he worked 79 regu-
lar and 38.75 overtime hours. And he continued working
there through the pay period ending December 10. Since
commencing work for Respondent on February 16 there had
been earlier weeks when Turner had performed no work for
Respondent but had then resumed working for it. Thus, it
would appear that like Knack, Turner had been ‘‘temporarily
laid off’’ at the beginning of the eligibility period, albeit for
a longer period than Knack, and is eligible to vote under the
terms of the direction of election. I overrule the challenge to
the ballot that he cast.
CONCLUSIONS OF LAW
CleanSoils, Inc. committed unfair labor practices affecting
commerce on August 31, 1993, by terminating Michael
Hayes because he testified at a representation hearing as a
witness for International Union of Operating Engineers,
Local Union No. 302, AFL–CIO, in violation of Section
8(a)(4) and (1) of the Act, and Stan Frantz and Bruce Allen
Manderson Jr. because of their support or suspected support
for that labor organization, in violation of Section 8(a)(3) and
(1) of the Act. Furthermore, I conclude that with regard to
the election conducted in Case 19–RC–12751 challenges to
the ballots of Michael Hayes, Steven Sand, Thomas Ries,
Randall Roe, Wesley D. Faulkner, Joe Pete Smith, Robert D.
Hughes, and Terika Kons be sustained, while challenges to
the ballots of Stan Frantz, Bruce Allen Manderson Jr., Mike
Turner, and Thomas Knack be overruled.
THE REMEDY
Having concluded that CleanSoils, Inc., has engaged in
certain unfair labor practices, I will recommend that it be or-
dered to cease and desist therefrom and, further, that it be
ordered to take certain affirmative action to effectuate the
policies of the Act. With respect to the latter, it will be or-
dered to offer immediate and full reinstatement to Michael
Hayes, Stan Frantz, and Bruce Allen Manderson Jr., dismiss-
ing, if necessary, anyone who may have been hired or as-
signed to perform the jobs from which they were terminated
on August 31, 1993. If those positions, or any of them, no
longer exist, it will be ordered to offer reinstatement to a
substantially equivalent position or positions without preju-
dice to seniority or other rights and privileges. It will also
be ordered to make Hayes, Manderson, and Frantz whole for
any loss of pay and benefits suffered because of their unlaw-
ful terminations, with backpay to be computed on a quarterly
basis, making deductions for interim earnings, F. W. Wool-
worth Co., 90 NLRB 289 (1950), and with interest to be paid
on the amounts owing as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). It will be further ordered
to remove from its files any reference to the unlawful termi-
nations of August 31, 1993, and notify Hayes, Manderson,
and Frantz in writing that this has been done and that the
terminations will not be used against them in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, CleanSoils, Inc., Roseville, Minnesota, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating, discharging, or otherwise discriminating
against Michael Hayes or any other person for testifying in
a hearing conducted by the Board.
(b) Terminating, discharging, or otherwise discriminating
against Stan Frantz, Bruce Allen Manderson Jr., or any other
employee because they support, or are suspected of support-
ing, International Union of Operating Engineers, Local Union
No. 302, AFL–CIO or any other labor organization.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Michael Hayes, Stan Frantz, and Bruce Allen
Manderson Jr. immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and make
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
them whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this has
been done and that the discharges will not be used against
them in any way.
(d) Post at its Anchorage and Kenai, Alaska sites copies
of the attached notice marked ‘‘Appendix.’’10 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 19, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER RECOMMENDED that the challenges to the
ballots cast by Michael Hayes, Steven Sand, Thomas Ries,
Randall Roe, Wesley D. Faulkner, Joe Pete Smith, Robert D.
Hughes, and Terika Kons be sustained, while the challenges
to the ballots cast by Stan Frantz, Bruce Allen Manderson
Jr., Mike Turner, and Thomas Knack be overruled and that
Case 19–RC–12751 be severed and remanded to the Re-
gional Director for Region 19 so that he may open and count
those ballots, and issue whatever certification is appropriate
in view of the final tabulation.