Donaldson Bros. Ready Mix

National Labor Relations Board - Board Decisions

May 19, 2004

341 N.L.R.B. 958 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958
Donaldson Bros. Ready Mix, Inc. and International
Union of Operating Engineers, Local 400, AFL–
CIO. Cases 19–CA–26948–1, 19–CA–26948–2,
19–CA–26948–3, 19–CA–26948–4, 19–CA–
26948–5, 19–CA–26948–6, 19–CA–26948–7, and
19–CA–27018, and 19–CA–27024
May 19, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On December 15, 2000, Administrative Law Judge
Jerry M. Hermele issued the attached decision. Both the
Respondent and the General Counsel filed exceptions
and supporting briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and affirms the
judge’s rulings, findings,1 and conclusions, except as
modified here, and adopts the recommended Order as
modified and set forth in full below.2
I. INTRODUCTION
The unfair labor practice allegations in this case arise
from an effort by the Union, Operating Engineers Local
400, to organize approximately 25 employees working
for Respondent Donaldson Bros., a company engaged in
the sale and delivery of ready mix concrete, sand, and
gravel. The judge found that the Respondent committed
numerous violations of Section 8(a)(1) and (3) of the Act

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
At fn. 1 of his decision, the judge stated that upon publication, “un-
authorized changes may have been made by the Board’s Executive
Secretary to the original Decision of the Presiding Judge.” It is the
Board’s established practice to correct any typographical or other simi-
lar minor errors before publication of a decision in the bound volumes
of NLRB decisions.
2 We agree with the judge that the Respondent’s unfair labor prac-
tices do not warrant the imposition of a bargaining order.
In our Order, we shall include language regarding the collection of
information necessary to determine the discriminatees’ backpay in
accordance with our decision in Ferguson Electric Co., 335 NLRB 142
(2001). We shall also substitute a new notice to conform it to our Or-
der and in accordance with the Board’s decision in Ishikawa Gasket
America, 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
We also modify the judge’s remedy to provide that backpay be com-
puted in the manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
in the month-and-a-half following the commencement of
the Union’s campaign in early April 2000, but he also
recommended dismissal of several complaint allegations
of additional violations. Both the General Counsel and
Respondent have excepted to certain of the judge’s find-
ings and conclusions.
II. SUMMARY OF BOARD’S FINDINGS AND CONCLUSIONS
We affirm the judge’s disposition of certain issues pre-
sented for the reasons set forth in his decision.3 We af-
firm or reverse certain other dispositions of the judge for
the reasons discussed herein. Some of the Board’s find-
ings and conclusions reflect the panel’s unanimous
views, while others reflect the views of panel majorities,
as more fully described below.
We adopt the judge’s findings that the Respondent vio-
lated Section 8(a)(1) by interrogating employee Allen
Dukelow and violated Section 8(a)(3) by laying off em-
ployee Jim West and by granting the employees a wage
increase in response to the union activity. We find, con-
trary to the judge, that the Respondent violated Section
8(a)(1) by banning off-duty employees from its premises
and by misrepresenting the eligibility of union-
represented employees to participate in its Employee
Stock Option Plan (ESOP), but did not violate Section
8(a)(1) by alleged Supervisor Vernon Weidow’s atten-
dance at a union meeting. Further, a panel majority
(Chairman Battista and Member Schaumber) adopts the
3 We adopt the judge’s finding that the Respondent violated Sec.
8(a)(3) during the organizing campaign by transferring employee Allen
Dukelow from his job operating a cat loading machine to a mixer op-
erator/jack-of-all-trades in retaliation for his union activities. In affirm-
ing, however, we note that the judge incorrectly stated that the Respon-
dent transferred Dukelow from mixer operator to a jack-of-all-trades
position. The judge also stated in his decision that this discriminatory
transfer was on either April 7 or 10, 2000, whereas he found in his
conclusions of law that Respondent’s action occurred on April 6, 2000.
We do not find that these misstatements are sufficient to affect our
finding of the violation.
We affirm the judge’s findings that the Respondent violated Sec.
8(a)(3) by using a subcontractor to reduce employees’ hours, that the
Respondent did not violate Sec. 8(a)(1) by Vern Weidow’s comments
to employee Rightnour (Member Walsh does not reach the merits of
this allegation as discussed infra), and that the Respondent did not
violate Sec. 8(a)(3) by discharging employee James Garcia.
No exceptions were filed to the judge’s further findings that the Re-
spondent did not violate Sec. 8(a)(1) by unlawfully substituting a new
application policy because of the union activity and by Respondent
President Donaldson’s alleged threat to employee Dukelow that he
would eliminate overtime, reduce wages, and terminate the ESOP if
employees unionized; that the Respondent did not violate Sec. 8(a)(3)
by attempting to reduce employees’ hours and cause layoffs by alleg-
edly taking its phone off the hook, discharging employee Todd
Madeen, restricting employee Dukelow’s use of his cellular phone,
disciplining employee Stueve for failing to wear his hard hat, and im-
plementing a new access policy, fn. 7 infra; or that the Respondent
violated Sec. 8(a)(1) by posting a notice that contained an overly broad
prohibition of employees from honoring any picket line.
341 NLRB No. 124
DONALDSON BROS. READY MIX, INC. 959
judge’s finding that Vernon Weidow is a statutory super-
visor and that his conduct violated Section 8(a)(1) as
indicated below.4 Finally, a panel majority (Chairman
Battista and Member Walsh) agrees with the judge that
the Respondent violated Section 8(a)(1) by creating the
impression that employees’ union activities were under
surveillance and by threatening employees with dis-
charge and violated Section 8(a)(3) by reducing employ-
ees’ hours of work in retaliation for their union activity
and by refusing to allow employee David Raines to clock
in early.5
A. Panel Findings and Conclusions
The following are the panel’s reasons for: one, adopt-
ing the judge’s findings that the Respondent violated
Section 8(a)(1) by interrogating an employee and vio-
lated Section 8(a)(3) by laying off employee West and by
granting employees a wage increase, and two, finding,
contrary to the judge, that the Respondent violated Sec-
tion 8(a)(1) by banning off-duty employees and by mak-
ing misstatements about the employees’ ESOP, but did
not violate Section 8(a)(1) by Weidow’s attendance at a
union meeting.
1. The Donaldson-Dukelow conversation
For the reasons stated below, we adopt the judge’s
finding that the Respondent violated Section 8(a)(1) of
the Act by coercively interrogating employee Dukelow.
The evidence shows that, on April 3, 2000,6 President
Charles Donaldson called employee Allen Dukelow into
his office. Donaldson locked two glass doors that led
into the office, told Dukelow he had heard talk of unioni-
zation, and inquired as to whether Dukelow knew any-
thing about it. Dukelow replied that he had “heard a lit-
tle bit.” Donaldson stated that, if there was union activ-
ity, employees Eldon Wolfe and Dukelow were probably
the “instigators.” Donaldson added that Jim West, Doug
Jewell, and Randy Melton “would probably be good op-
tions” as other employees behind the organizing cam-
paign.
The judge found Donaldson’s statements during this
conversation constituted unlawful interrogation. We
agree. Under Rossmore House, 269 NLRB 1176 (1984),
affd. sub nom. Hotel Employees Union Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985), the test of unlaw-
ful interrogation is whether, under all the circumstances,
the questioning reasonably tended to restrain, coerce, or
interfere with employees’ Section 7 rights. See, e.g.,
Mediplex of Danbury, 314 NLRB 470, 472 (1994).
Here, Donaldson initiated the conversation with

4 Member Walsh has filed a separate dissent on these issues.
5 Member Schaumber has filed a separate dissent on these issues.
6 All dates are in 2000, unless otherwise noted.
Dukelow by calling him into his office, locked two doors
behind Dukelow, and described Dukelow and another
employee as the “instigators” of the organizing cam-
paign. Given these circumstances, including Donaldson’s
reference to Dukelow as an instigator, we conclude that
Donaldson’s questioning of Dukelow had a reasonable
tendency to coerce him in the exercise of his Section 7
rights. We therefore adopt the judge’s finding that
Donaldson’s interrogation violated Section 8(a)(1).
2. Banning of off-duty employees
We find merit in the General Counsel’s exception to
the judge’s failure to find that the Respondent violated
Section 8(a)(1) by promulgating a rule banning off-duty
employees from its premises. On April 17, less than 2
weeks after the organizing campaign began, all employ-
ees received an enclosure with their paychecks notifying
them that the Respondent had employed an armed secu-
rity guard to protect the premises after working hours
and that off-duty employees would not be allowed on the
premises. The judge found that the Respondent’s notice
was lawful in every respect. Although we agree with the
judge that the Respondent had a right to hire a plant se-
curity guard and to inform employees of this action, we
reverse the judge and find that the Respondent unlaw-
fully banned off-duty employees, for the reasons stated
below.
The evidence shows that, before the union organizing
campaign began, the Respondent had allowed employees
to use its shop after working hours for personal reasons.
Further, although the Respondent’s stated reason for the
new rule was vandalism prevention, there is no evidence
in the record of vandalism at the time the rule was an-
nounced. Based on the Respondent’s numerous 8(a)(1)
and (3) violations, and the timing of its new rule, we find
that the Respondent banned off-duty employees in order
to retaliate against them for their union activities. Al-
though there was testimony that the Respondent did not
enforce its new rule and continued to permit employees
on its property after the workday ended, the Respondent
did not rescind the rule or notify its employees that it
would not enforce the rule. We therefore conclude that,
in these circumstances, the Respondent also violated Sec-
tion 8(a)(1) of the Act by promulgating and maintaining
a new rule, in response to the organizing campaign, that
banned off-duty employees from its property.7
7 Because the Respondent’s motive for implementing this rule was
the union campaign, Chairman Battista and Member Schaumber find it
unnecessary to reach the Board’s decision in Tri-County Medical Cen-
ter, 222 NLRB 1089 (1976), finding a rule banning off-duty employees
from an employer’s premises valid under only limited circumstances.
In joining his colleagues in finding that the Respondent violated Sec.
8(a)(1) by banning off-duty employees from its property during the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960
3. Participation in employee stock option plan (ESOP)
Contrary to the judge, we agree with the General
Counsel that the Respondent further violated Section
8(a)(1) by informing employees that they could not con-
tinue to participate in the ESOP if they chose union rep-
resentation. The summary description of the 1995 ESOP
that the Respondent’s employees received specifically
states that employees covered by a collective-bargaining
agreement are ineligible to participate in the plan. How-
ever, the lengthy ESOP document itself provides that
union-represented employees can participate in the plan
if the collective-bargaining agreement permits it.
During the organizing campaign, on April 21, the Re-
spondent met with the employees to discuss both the
ESOP and its ramifications on any possible sale of the
Respondent. It was the first meeting that the Respondent
had held with employees regarding the ESOP since its
creation in 1995. Donaldson told the employees that
three potential buyers had recently approached him about
purchasing the Respondent. Donaldson also informed
them that, as participants in the ESOP, they had the right
to vote on any sale and that the ESOP assets would be
distributed to employees if another entity acquired the
Respondent.
Because the summary provides that the ESOP itself is
controlling if there is a conflict between their provisions,
the judge concluded that the Respondent’s inaccurate
summary of the plan did not violate the Act as it had no
effect on the ESOP itself which was lawful. The judge
noted that “it cannot be concluded that this five-year-old
‘statement’ reasonably tended to chill the employees’
exercise of their Section 7 rights.”
Contrary to the judge, we find that the incorrect lan-
guage in the ESOP summary violated the Act. We rely
on the evidence that the Respondent interjected the em-
ployees’ ESOP into the union organizing drive as a key

organizing campaign, Member Schaumber stresses that the present
situation is distinguishable on its facts from City Markets, Inc., 340
NLRB No. 151 (2003), in which he dissented. In that case, unlike here,
the evidence supported the argument that the employer promulgated its
new rule in response to employee complaints so that it could maintain
order and discipline at its facility. Member Schaumber would continue
to hold timing alone insufficient to establish the unlawfulness of an
otherwise valid rule, as he stated in his City Markets dissent.
Member Walsh finds that the rule denying the off-duty employees
access to the Respondent’s premises violates Sec. 8(a)(1) under the
standards set forth in Tri-County, supra. The prohibition is not limited
only to the interior of the plant and other working areas, but can instead
reasonably be understood by the employees also to prohibit, without
justification, off-duty employee access to parking lots, gate areas, and
other outside nonwork areas. Id.
We note that no exceptions were filed to the judge’s further finding
that the Respondent did not also violate Sec. 8(a)(3) by implementing
this new rule.
campaign issue when Donaldson held an employee meet-
ing on this subject for the first time in 5 years and Wei-
dow commented to employees during a union meeting
that he feared their unionization would cause the ESOP
to terminate. Indeed, after that union meeting and con-
sistent with the ESOP summary’s contents, Weidow,
through his comment to employee Transue during the
campaign, unlawfully threatened employees that they
would lose their ESOP if they voted in the Union. We
stress that, because the ESOP itself is a voluminous
document, the summary of the plan was the only docu-
ment that employees were likely to read to educate them-
selves about this important benefit. It is immaterial in
these circumstances that the language of the plan itself
lawfully described the consequences of unionization.
Furthermore, based on the Respondent’s previous distri-
bution of the inaccurate ESOP plan summary to employ-
ees and its repeated emphasis on the existence of this
employee benefit during the organizing campaign, we
reject the judge’s finding that evidence demonstrating
that the Respondent prepared this summary in 1995 is a
relevant consideration here. We therefore conclude that,
in these circumstances, the Respondent has further vio-
lated Section 8(a)(1) by the contents of the ESOP sum-
mary that the employees had received.8
4. Weidow’s attendance at a union meeting
The judge found that the Respondent engaged in sur-
veillance when Weidow, whom he found was a statutory
supervisor, attended a union meeting on about April 10
or 11,9 and reported back to Donaldson on the events that
occurred there. Weidow, a first line supervisor and
ESOP member, testified without contradiction that he
attended this meeting because he wanted to express his
opinion concerning the negative impact he thought that
the Union could have on the employees’ ESOP. On ar-
riving at the meeting, Weidow asked employee Dukelow,
who was standing at the door, if he could participate in
the meeting. Dukelow invited him to attend. Weidow
made several comments at the meeting that we have
found violated Section 8(a)(1) as discussed infra at fn.
8 We find it unnecessary to decide whether the summary would vio-
late the Act in the absence of Weidow’s statements linking its unlawful
contents to this election campaign.
In his separate partially dissenting opinion, Member Walsh finds that
the record does not establish that Weidow is a supervisor within the
meaning of Sec. 2(11) of the Act. Consequently, Member Walsh does
not rely on Weidow’s statements in finding that the incorrect language
in the ESOP summary violated the Act.
9 The judge stated in his decision that Weidow attended the union
meeting on April 10, whereas he twice stated in his conclusions of law
that the meeting occurred on April 11. The date on which the meeting
actually occurred is immaterial to our finding on this issue.
DONALDSON BROS. READY MIX, INC. 961
19. After the meeting, Weidow told Donaldson what had
happened.
We find merit in the Respondent’s exceptions to the
judge’s finding. A supervisor’s attendance at a union
meeting does not per se constitute unlawful surveil-
lance.10 In this case, Weidow attended the meeting to
present his views on possible unionization and the em-
ployees invited him in. Although Weidow subsequently
reported back to Donaldson on the meeting, there is no
evidence that surveillance was Weidow’s express pur-
pose in attending. There was nothing clandestine about
his activity. Thus, the unit employees were aware of his
presence at the meeting and, indeed, Dukelow, a leading
organizer, invited him to attend. There is also no show-
ing that Donaldson specifically directed Weidow’s al-
leged surveillance or even requested any information
subsequent to Weidow’s attendance at the meeting. We
therefore dismiss this complaint allegation.11
5. Employee West’s layoff
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by laying off em-
ployee West. The evidence shows that the Respondent
knew that West, a mechanic, had been a union member
while employed by another employer. Further, during
the coercive interrogation of Dukelow on April 3,
Donaldson specifically mentioned West as an employee
whom he suspected was among the leaders of the orga-
nizing campaign. Two days later, on April 5, the Re-
spondent laid off West for about 3 weeks, assertedly be-
cause there was a lack of work for him. West and 21
other employees signed union cards that same evening.
To prove a violation of Section 8(a)(3) and (1) under
our decision in Wright Line,12 the General Counsel must
first prove, by a preponderance of the evidence, that the
employee’s protected conduct was a motivating factor in
the employer’s adverse action.13 Once the General
Counsel makes a showing of discriminatory motivation
by proving the employee’s prounion activity, employer
knowledge of the prounion activity, and animus against
the employee’s protected conduct,14 the burden of per-
suasion “shift[s] to the employer to demonstrate that the
same action would have taken place even in the absence
of the protected conduct.” Wright Line, supra at 1089.

10 See St. Mary Medical Center, 339 NLRB No. 51 at fn. 4 (2003),
citing Dr. Philip Megdal D.D.S., 267 NLRB 82, 88 fn. 4 (1983).
11 Member Walsh would dismiss this allegation based on his finding
that Weidow is not a statutory supervisor.
12 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert.
denied 495 U.S. 989 (1982).
13 Manno Electric, Inc., 321 NLRB 278, 280 (1996).
14 Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999).
Based on the facts here, the General Counsel has es-
tablished that West was engaged in union activity, that
the Respondent knew or at least suspected he was a un-
ion adherent, that the Respondent laid off West, and that
this layoff occurred immediately after the advent of the
union activity and in the context of Donaldson’s naming
West as a union leader and describing union activists as
“instigators.” We therefore conclude that the General
Counsel has met the initial burden of showing that the
layoff was discriminatory.
The Respondent argues in its exceptions that it proved
West was basically a mechanic’s helper and that there
was no work available for him after its chief mechanic,
William Meuchel, had gone on vacation at the time of
West’s layoff. The Respondent contends that the judge
erred in relying on the evidence that it subcontracted out
repairs costing $587.30 while Meuchel was on vacation
because West could not have performed this work.
Meuchel testified, however, that West could have done
this work by himself. Furthermore, Meuchel’s vacation
lasted less than a week and the Respondent laid off West,
the only layoff that calendar year, for about 3 weeks. In
these circumstances, we adopt the judge’s finding that
West’s layoff violated Section 8(a)(3).
6. Wage increase
The Respondent excepts to the judge’s finding that it
further violated Section 8(a)(3) on May 19, by granting
all employees, other than its clerical staff, a wage in-
crease of 50 cents per hour. The record shows that the
Respondent has a practice of conferring pay raises about
once each year. Thus, the Respondent granted raises in
November 1997, in July 1998, and during October and
November in 1999. There is also evidence that three
drivers received raises of 50 cents per hour in January
2000, 4 months before the across-the-board wage in-
crease that the complaint alleges was unlawful.
An employer, when confronted by a union organizing
campaign, must proceed as it would have done if the
union had not been present.15 It is well established that a
grant of benefits made by an employer during a union
organizing campaign violates the Act unless the em-
ployer can demonstrate that its action was governed by
factors other than the pending election.16 The employer
has the burden of showing that it would have conferred
the same benefits in the absence of the union.17 To meet
this burden, the employer needs to establish that the
benefits conferred were part of a previously established
15 Russell Stover Candies, 221 NLRB 441 (1975).
16 See, e.g., Waste Management of Palm Beach, 329 NLRB 198,
198–199 (1999); Village Thrift Store, 272 NLRB 572 (1983).
17 Village Thrift Store, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 962
company policy and the employer did not deviate from
that policy on the advent of the union.18 Here, the Re-
spondent’s practice in the 3 years preceding the alleged
unlawful wage increase was to confer pay raises during
the second half of the year, twice in November. Al-
though the Respondent could have rebutted the presump-
tion that its May 2000 increase was unlawful by provid-
ing a plausible justification for it, the Respondent, as the
judge found, has offered no credible explanation for the
timing of the pay raise. We therefore conclude that the
Respondent has failed to meet its burden of showing that
it would have granted the May 2000 wage increase in the
absence of the Union.
B. Majority Findings and Conclusions—
Chairman Battista and Member Schaumber
The following are the reasons Chairman Battista and
Member Schaumber find that Weidow is a statutory su-
pervisor and, therefore, that the Respondent violated Sec-
tion 8(a)(1) by certain conduct attributable to Weidow.19
Weidow’s Supervisory Status: Contrary to our col-
league, we agree with the judge that Weidow is a super-
visor within the meaning of Section 2(11) of the Act.
Weidow is a foreman and works along with two other
employees in the precast department producing concrete
septic tanks. He has a “little shack” as an office and
earns $14.50 per hour, whereas the other two employees
earn only about $11.50 and $9.50 hourly each. During

18 Mercy Hospital, 338 NLRB No. 66 (2002), citing American Sun-
roof Corp., 248 NLRB 748, 748–749 (1980), modified on other
grounds 667 F.2d 20 (6th Cir. 1981).
19 We adopt the judge’s findings that the Respondent violated Sec.
8(a)(1) by Supervisor Weidow’s warning to employees that they would
not receive higher wages if they selected the Union to represent them
and his telling employees that they were stupid for supporting the Un-
ion. Although the record shows that Weidow made the former state-
ment about April 6, and that his comment denigrating the Union likely
occurred about April 21, the judge found that Weidow made both re-
marks on April 6. We do not find that any misstatement in the judge’s
dating of these violations is sufficient to affect our ultimate findings.
Furthermore, in adopting, we stress that the Respondent has excepted to
the judge’s finding that Weidow is a statutory supervisor, but has not
raised any arguments regarding the merits of these two allegations, as
required under Sec. 102.46(b)(1) and (2) of the Board’s Rules. Accord-
ingly, in light of the limited nature of the exceptions and given that we
adopt the judge’s supervisory finding, we need not reach the merits of
Weidow’s statements in affirming the judge’s findings of these viola-
tions. For the reasons the judge stated, we also adopt the judge’s find-
ing that the Respondent violated Sec. 8(a)(1) by Weidow’s ordering
employee Lindquist to remove a union sticker from his hat and by
Weidow’s comments to employee Transue regarding the employees’
ESOP.
We find it unnecessary to pass on whether the Respondent violated
Sec. 8(a)(1) by Weidow’s ESOP statements to employee Rightnour on
April 6 and to a group of employees at the union meeting he attended
on either April 10 or 11, or by his alleged interrogation of employee
Russell Transue because the remedy for any violations found would be
cumulative.
the 3 years he has served as foreman, Weidow inter-
viewed about 10 employees and recommended at least 2
of them, Charles Rightnour and Todd Madeen, for hire in
the precast department. Donaldson approved these rec-
ommendations. Later, when Madeen had a problem with
frequent tardiness, Weidow recommended Madeen’s
discharge and Donaldson agreed. Although Donaldson
claimed that he does not “rubber stamp” Weidow’s rec-
ommendations, Donaldson admitted that he does nothing
more than review the applications of the employees that
Weidow has recommended for hire.

Section 2(11) of the Act defines a supervisor as:

any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.

The statutory indicia are read in the disjunctive. As the
Board stated in Great American Products, 312 NLRB 962
(1993), an individual need possess the authority to perform
only one of the enumerated functions to qualify to meet the
statutory definition.
Applying these principles to this case, we find that
Weidow has the authority to effectively recommend the
hire and fire of employees working in the precast de-
partment. Thus, the evidence shows that Weidow alone
interviews applicants and that Donaldson’s independent
evaluation of his recommendations consists solely of
reviewing their applications. We find on these facts that
the General Counsel has met his burden of proving Wei-
dow’s supervisory status. In Venture Industries, 327
NLRB 918, 919 (1999), the Board found supervisory
authority to discipline where the employer followed such
recommendations 75 percent of the time. Here, the Re-
spondent has failed to refute Weidow’s possession of
hiring and firing indicia by showing any instance in
which Donaldson overruled his recommendations fol-
lowing his own cursory investigation. For these reasons,
we reject our colleague’s finding that the evidence on
this indicia is “conclusionary” and does not establish that
he exercises any independent judgment. We find to the
contrary that Weidow is a statutory supervisor because
DONALDSON BROS. READY MIX, INC. 963
he effectively recommends the hiring and firing of de-
partment employees.20
C. Majority Findings and Conclusions—
Chairman Battista and Member Walsh
The following are the reasons Chairman Battista and
Member Walsh adopt the judge’s findings that the Re-
spondent violated Section 8(a)(1) by creating the impres-
sion of surveillance and by threatening employees with
discharge and violated Section 8(a)(3) by reducing em-
ployees’ hours of work and by refusing to allow em-
ployee Raines to clock in early.
1. Donaldson’s conversation with Dukelow
Regarding the conversation in which Donaldson
unlawfully interrogated Dukelow, contrary to our col-
league, we agree with the judge that Donaldson also vio-
lated Section 8(a)(1) by creating the impression that em-
ployees’ union activities were under surveillance. The
test for determining whether an employer has created the
impression that its employees’ union activities have been
placed under surveillance is whether the employees
would reasonably assume from the employer’s state-
ments or conduct that their union activities had been
placed under surveillance. See, e.g., Tres Estrellas de
Oro, 329 NLRB 50, 51 (1999). Donaldson, as noted,
specifically identified five employees to Dukelow, in-
cluding Dukelow himself, whom Donaldson believed
were leaders of the union organizing campaign. We con-
clude that Donaldson’s remarks gave Dukelow reason-
able grounds to believe that management knew Dukelow
and others were union organizers and that it had a source
of information regarding the employees’ union activities.
Even assuming that this information could have been
obtained through the company “grapevine” as our col-
league speculates, employee Dukelow would have had
no reasonable basis to know, or to infer, that Donaldson
was merely referring to information overheard during
“casual conversations” at the Respondent’s facility.21
2. Threat of discharge
Contrary to our colleague, we adopt the judge’s find-
ing that Respondent President Donaldson unlawfully
threatened discharge when he told employee Charles
Rightnour, in late April 2000, that “if it was up to him
personally, he would shitcan us, but he couldn’t because
the business needed [the employees] and it wouldn’t run
right for 6 months.” We find nothing in the record to
indicate that Donaldson was joking when he made these

20 Cf. Progressive Transportation Services, 340 NLRB No. 126
(2003), where the Board found that the “deck lead supervisor” could
effectively recommend employee discipline.
21 See Continental Bus System, 229 NLRB 1262, 1265–1266 (1977).
remarks to Rightnour. It is immaterial that Rightnour
himself initiated the conversation or that he raised the
subject of whether Donaldson intended to discharge em-
ployees in response to the union activity. Our colleague
is remiss in relying on Rightnour’s testimony that he was
not threatened by Donaldson’s remarks as the Board has
consistently held that “the subjective reactions of em-
ployees are irrelevant.” See, e.g., Electra Food Machin-
ery, 279 NLRB 279, 280 fn. 8 (1986), quoting Emerson
Electric Co., 247 NLRB 1365, 1370 (1980), enfd. 649
F.2d 589 (8th Cir. 1981). Rather, “the issue is whether
objectively . . . [the] remarks tended to interfere with the
employee’s right to engage in” protected activity.
Southdown Care Center, 308 NLRB 225, 227 (1992).
We agree with the judge that Donaldson’s threat of dis-
charge constituted such interference in the circumstances
here and, therefore, violated Section 8(a)(1) of the Act.
3. Reduction in employees’ hours of work
We agree with the judge that the Respondent violated
Section 8(a)(3) on April 6 and 7, 2000, by reducing the
hours of employees Rick Zundel, Douglas Linquist,
Randy Melton, and Joe Crouchet in retaliation for the
employees’ union activities. The evidence shows that
the reduction in the employees’ hours came within a day
or two after the Union had presented about 22 authoriza-
tion cards to Donaldson that included cards signed by
these four individuals. Furthermore, as the judge found,
Zundel testified that the Respondent had not previously
told him that there was no work for him. Melton simi-
larly testified that, during his 3 years of employment,
Donaldson had not told him to take off a day during the
Respondent’s busy season.
Based on this evidence and the other violations the Re-
spondent committed in response to the union activity, we
find that the General Counsel has established under
Wright Line, supra, that union activities were a motivat-
ing factor in the Respondent’s decision to reduce the four
employees’ hours. Although there is vague evidence that
Donaldson had previously reduced employees’ hours as
necessary, and that the weather was rainy during April
2000, we find, contrary to Member Schaumber, that this
showing is far short of establishing that the Respondent
would have reduced the hours of these four employees at
this particular time. We also note that the Respondent’s
unlawful subcontracting of unit work during this period
further bespeaks the Respondent’s discriminatory motive
in taking work away from union adherents. Accordingly,
we adopt the judge’s finding that the reduction of hours,
like the subcontracting, was unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 964
4. Refusing to allow David Raines to clock in early
a. Facts
David Raines is a 9-year employee who signed a union
authorization card on the evening of April 5. The next
morning, before Raines arrived for work, the Union re-
quested that Respondent President Donaldson recognize
the Union as the representative of the Respondent’s em-
ployees. In support of its request, the Union showed
Donaldson union authorization cards signed by 22 em-
ployees—including Raines. Donaldson declined to rec-
ognize the Union. As found above, very shortly thereaf-
ter, but still that morning, Donaldson discriminatorily
and unlawfully sent card-signer Rick Zundel home from
work and notified card-signers Randy Melton and Doug-
las Lindquist not to report for work, all in violation of
Section 8(a)(3) and (1) of the Act.
Raines’ official starting time was 8 a.m. It had be-
come his practice, however, to clock in about an hour
early each day.22 Donaldson testified that Raines consis-
tently clocked in about an hour earlier than his scheduled
starting time. Donaldson had generally acquiesced in
this practice. Nevertheless, our colleague asserts that
Raines “admitted” that his clocking in early was an “is-
sue” prior to the April 6 incident in question, and that
Donaldson had told him about 6 to 8 times before not to
clock in before 8 a.m. In fact, however, there is no evi-
dence that Donaldson ever warned Raines about clocking
in early. Rather, on about 6 to 8 previous occasions dur-
ing Raines’ 9-year term of employment, all occurring
during the Respondent’s annual November—March win-
ter slow seasons, Donaldson had told Raines as Raines
was leaving work at the end of the day (or by telephone
early the following morning) that Raines did not need to
come to work until 8 a.m. the next day (or later that
morning). Moreover, Raines was asked at the hearing
whether his clock-in time had ever been “an issue” be-
fore the April 6 incident in question. Raines replied that
it had been “an issue,” but he immediately explained in
the same answer what he meant by that:

There’s times I’ve come in voluntarily and then find
something to do and [Donaldson] didn’t ask me to do it
. . . . I’d come in because I have a hard time sleeping.
So I’d come in and go to work early. And if I don’t
have nothing to do, if [Donaldson] doesn’t have any-
thing to do, I’ll start sweeping the shop or something
like that.

Finally, the evidence does not support our colleague’s asser-
tion that Donaldson wanted to bring the matter of Raines
clocking in early to a head because Donaldson thought

22 The Respondent’s employees are paid from the time they clock in.
Raines was padding his timeclock. While Donaldson in the
past had suspected Raines of padding his timeclock by not
clocking out for lunch, Donaldson also testified that he had
finally “got[ten] through” to Raines on that subject, Raines
had stopped not clocking out for lunch, and Donaldson had
not had a problem with Raines about this matter for “a long
time.”
Consistent with his practice, Raines arrived for work
on April 6 at around 6:30–6:45 a.m.; his official starting
time was 8 a.m. By this time that morning, the Union
had presented Donaldson with the authorization cards,
Raines’ among them. Donaldson decided that morning
to bring the matter of Raines’ continual early arrival “to a
head,” and to make it clear to Raines that he did not have
permission to clock in early. Thus, Donaldson told
Raines not to clock in until 8 a.m. that morning, that he
had been consistently clocking in an hour earlier than
scheduled, and that he was not permitted to clock in early
anymore.
In section 38 of his attached decision, the judge found
that in addition to violating Section 8(a)(3) and (1) on the
morning of April 6 by sending card-signer Zundel home
from work and notifying card-signers Melton and
Lindquist not to report for work, the Respondent also
violated Section 8(a)(3) and (1) by prohibiting card-
signer Raines from continuing to clock in early. Con-
trary to our dissenting colleague, we affirm the judge’s
finding.
b. Applicable principles
As stated above, to prove a violation of Section 8(a)(3)
and (1) under Wright Line, supra, the General Counsel
must first prove, by a preponderance of the relevant evi-
dence, that an employee’s union activity was a motivat-
ing factor in an employer’s adverse action against that
employee. Once the General Counsel makes a showing
of such discriminatory motivation, by establishing the
employee’s union activity, the employer’s knowledge of
it, and the employer’s animus against it, the burden of
persuasion shifts to the employer to establish that it
would have taken the same adverse action against the
employee even in the absence of the employee’s union
activity.
c. Application of principles
Raines, along with about 20 of his fellow employees,
signed a Union authorization card on the evening of
April 5. The Union showed the cards, including Raines’
card, to Donaldson around 6 a.m. the following morning,
April 6. Shortly thereafter, still very early that morning,
and in retaliation for the employees’ signing the authori-
zation cards, Donaldson discriminatorily sent card-signer
Rick Zundel home from work and notified card-signers
DONALDSON BROS. READY MIX, INC. 965
Randy Melton and Douglas Lindquist not to report for
work, all in violation of Section 8(a)(3) and (1) of the
Act.
Thus, the record conclusively establishes that Raines
engaged in union activity, the Respondent knew about it,
and the Respondent had animus against such activity.
During the very same time that Donaldson was discrimi-
natorily imposing adverse consequences on Zundel, Mel-
ton, and Lindquist for their union activity, it also, appar-
ently for the first time, prohibited Raines from clocking
in prior to 8 a.m. after he had already arrived at work
around 6:30–6:45 a.m. And, at the same time, and also
contrary to the Respondent’s established past practice,
Donaldson prohibited Raines from clocking in early
anymore.
The Respondent did not establish any business reason
for taking these actions against Raines on the morning of
April 6, or for not having taken such actions during
Raines’ prior 9-year tenure with the Respondent up to
that morning. Accordingly, the Respondent has failed to
establish that it would have prohibited Raines from
clocking in early on April 6, and thereafter in the absence
of Raines’ union activity the evening before, which
Donaldson had just found out about a few minutes before
imposing these prohibitions on Raines.
Our colleague infers that we are simplistically finding
that the Respondent must be acting out of union animus
solely because Raines signed a Union authorization card
the night before. Our above analysis of the Respondent’s
motivation is obviously fuller and more complex than
that. It considers the Respondent’s unlawful treatment of
other card signers the same morning and the failure of
the Respondent to establish any business reason for pro-
hibiting Raines from clocking in early again on the
morning in question. Our colleague also claims that we
are immunizing Raines from the consequences of his
purported timeclock abuse just because Raines was for
the Union. As seen, however, the Respondent has failed
to establish that it was motivated by any such purported
timeclock abuse by Raines when it prohibited him from
clocking in early.
Finally, our colleague says that we are “ignor[ing]” the
Respondent’s legitimate interest in enforcing its policy of
refusing to allow employees to clock in more than 15
minutes early and preventing Raines from clocking in an
hour early. We are not “ignor[ing]” that interest. We
are, however, finding that the Respondent was not moti-
vated by that interest when it discriminatorily prohibited
Raines from clocking in early on the morning of April 6
because he signed a Union authorization card on the eve-
ning of April 5. This was the first time, as far as the re-
cord shows, that the Respondent had ever prohibited
Raines from clocking in early after he had already ar-
rived for work. Consequently, the General Counsel has
established, under Wright Line, supra, that the Respon-
dent’s conduct in question toward Raines on the morning
of April 6 violated Section 8(a)(3) and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraphs 3 and 4 of the
judge’s Conclusions of Law:
“3. The Respondent violated Section 8(a)(1) of the
Act by
(a) Creating the impression that employees’ union ac-
tivities were under surveillance.
(b) Interrogating employees about their union activities
or sympathies.
(c) Telling an employee that it would “shitcan” the
employees for attempting to bring in the Union.
(d) Misstating to employees that they would lose their
Employee Stock Option Plan (ESOP) if they selected the
Union to represent them.
(e) Telling employees that they would not receive
higher wages if they selected the Union as their bargain-
ing representative.
(f) Telling employees that they were stupid for sup-
porting the Union.
(g) Telling an employee to remove a prounion sticker
from his hard hat.
(h) Promulgating a rule that restricts employees from
lawful picketing.
(i) Implementing a rule banning off-duty employees
from its premises in order to retaliate against them for
their union activities.”
“4. The Respondent violated Section 8(a)(3) and (1)
of the Act by
(a) Temporarily laying off employee James West on
April 5, 2000.
(b) Subcontracting out unit work in order to diminish
the hours of employees because they engaged in union
activities.
(c) Reducing the hours of employees Joe Crouchet,
Douglas Linquist, Randy Melton, and Rick Zundel on
April 6 and 7, 2000, in retaliation for their union activi-
ties.
(d) Refusing to allow employee David Raines to clock
in early for work in retaliation for his union activities.
(e) Transferring employee Allen Dukelow to a less de-
sirable position about April 7 or 10, 2000, in retaliation
for his union activities.
(f) Implementing a 50 cents per hour wage increase for
the unit employees on May 19, 2000, to discourage them
from engaging in union activities.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 966
ORDER
The National Labor Relations Board orders that the
Respondent, Donaldson Bros. Ready Mix, Inc., Hamil-
ton, Montana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Creating the impression that employees who are
engaged in protected concerted or union activities are
under surveillance.
(b) Coercively interrogating employees about their
protected concerted or union activities.
(c) Threatening to discharge employees who engage in
protected concerted or union activities.
(d) Misstating to employees that they will lose their
Employee Stock Ownership Plan (ESOP) if they select
the International Union of Operating Engineers, Local
400, AFL–CIO (the Union) as their collective-bargaining
representative.
(e) Threatening employees that they will not receive
higher wages if they select the Union to represent them.
(f) Denigrating employees who support the Union.
(g) Ordering employees to remove prounion stickers
from their hard hats.
(h) Promulgating rules that restrict employees from
engaging in lawful picketing.
(i) Implementing rules banning off-duty employees
from its premises in order to retaliate against them for
their union activities.
(j) Laying off employees for engaging in protected
concerted or union activities.
(k) Subcontracting out unit work in retaliation for the
employees’ protected concerted and union activities.
(l) Reducing employees’ hours in retaliation for their
protected concerted or union activities.
(m) Refusing to allow employees to clock in early for
work in retaliation for their protected concerted or union
activities.
(n) Transferring employees to different jobs in retalia-
tion for their protected concerted or union activities.
(o) Granting wage increases designed to undermine the
employees’ support for the Union.
(p) In any like or related manner, interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rein-
state Allen Dukelow to his former job as a cat loading
machine operator or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
(b) Make employees whole for any loss of earnings
and other benefits they may have suffered as a result of
Allen Dukelow’s unlawful job transfer, James West’s
discriminatory layoff, the Respondent’s unlawful sub-
contracting out of unit work about April 6, 2000, em-
ployees Joe Crouchet’s, Douglas Linquist’s, Randy Mel-
ton’s, and Rick Zundel’s unlawful reduction in hours on
April 6 and 7, 2000, and David Raines’ discriminatory
treatment regarding his clocking in early for work in the
manner set forth in this decision.
(c) Within 14 days from the date of this Order, ex-
punge from its records any reference to Allen Dukelow’s
unlawful transfer, James West’s unlawful layoff, the
unlawful reduction in hours affecting employees Joe
Crouchet, Douglas Linquist, Randy Melton, and Rick
Zundel, and the refusal to permit employee David Raines
to clock in early for work. Within 3 days thereafter, no-
tify these employees in writing that this has been done
and that these unlawful actions will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place to be
designated by the Board or its agents, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by Region 19, post at
its Hamilton, Montana facility copies of the attached
notice marked “Appendix.”23 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since April 3, 2000.

23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DONALDSON BROS. READY MIX, INC. 967
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER SCHAUMBER, dissenting in part.
Contrary to my colleagues, I would reverse the judge
and find that the Respondent did not violate Section
8(a)(1) of the Act by creating the impression of surveil-
lance because the evidence does not establish that the
Respondent’s president, Charles Donaldson, conveyed to
the employee listener that he learned of employee union
activities through surreptitious surveillance. Further, I
reject the majority’s finding, consistent with the judge,
that the Respondent violated the Act by Donaldson’s
comment that he would “shitcan” the employees for their
union activities. As explained below, Donaldson’s re-
mark constituted nothing more than a flippant, offhand
reaction to an employee’s inquiry about whether he
would terminate employees for supporting the Union. I
also disagree with my colleagues and the judge that the
Respondent violated Section 8(a)(3) by reducing the
hours of four unit employees on April 6 and 7, 2000,
because, in my view, the evidence is insufficient to sup-
port the conclusion that the diminished hours resulted
from employees’ union activities.1 Finally, I would find,
contrary to my colleagues, that the Respondent did not
violate Section 8(a)(3) by refusing to allow employee
David Raines to clock in well before his scheduled start-
ing time based on evidence that the Respondent previ-
ously warned Raines about timeclock abuse. I agree with
the majority decision in other respects.
1. Whether Donaldson’s conversation with Dukelow
created an impression of surveillance
Although not fully explicated by the judge, the record
shows that, on April 3, Donaldson called employee
Dukelow into his office and inquired whether he knew
anything about the union organizing campaign. Dukelow
replied that he had “heard a little bit” about it. During
this conversation, Donaldson also stated that employees
Eldon Wolfe and Dukelow were probably the “instiga-
tors” of any union activity that had begun. Donaldson
then mentioned the names of three other employees
whom he thought were leaders of the organizing cam-
paign.
I agree with my colleagues, for the reasons stated in
the majority decision, that Donaldson violated Section
8(a)(1) by coercively interrogating Dukelow during this

1 All dates are in 2000, unless otherwise noted.
meeting.2 I disagree, however, with their further finding
that Donaldson’s remarks to Dukelow tended to create an
impression that employees’ union activities were under
surveillance. It is the General Counsel’s burden to prove
that employees would reasonably assume from the re-
marks that their activities had been placed under surveil-
lance or were being closely monitored. See Heartshare
Human Services of New York, 339 NLRB 842, 844
(2003), SKD Jonesville Division, 340 NLRB No. 11, slip
op. at 2 (2003). In my view, Donaldson’s statements at
most created an impression that he had learned in some
way that employees were engaged in union activities.
However, the statement did not indicate to Dukelow
whether Donaldson had obtained this information
through surreptitious means or had simply obtained it via
the company grapevine. In these circumstances, I am
unable to find that Donaldson’s statements, without
more, conveyed the impression of surveillance. Accord-
ingly, I would dismiss this complaint allegation.
2. Alleged threat of discharge
In late April, employee Charles Rightnour went into
Donaldson’s office to discuss whether he thought the
employees’ organizing campaign would negatively affect
their Employee Stock Option Plan. Rightnour also in-
quired whether Donaldson would fire all of the employ-
ees if he could. Donaldson replied that, “if it was up to
him personally, he would shitcan us, but he couldn’t be-
cause the business needed [the employees] and it
wouldn’t run right for about 6 months.” Rightnour testi-
fied that he did not view Donaldson’s remarks as intimi-
dating or constituting a threat.
Contrary to the majority, I would not find that
Donaldson’s remarks unlawfully threatened discharge in
these circumstances. Rightnour initiated the conversa-
tion and raised the subject about the Respondent dis-
charging the employees. Although my colleagues seize
on Donaldson’s remarks, in response to Rightnour’s
query, that he wanted to “shitcan” the employees in order
to find a violation here, they ignore the plain meaning of
Donaldson’s remarks—he would not discharge the unit
employees because he needed them on the job. I also
stress that the context of the conversation suggests that
Donaldson made these comments in jest as a spontaneous
reaction to Rightnour’s question about the Union’s im-
pact on the employees’ employment tenure. Further,
Rightnour was the only employee, according to the re-
cord, who heard Donaldson’s remark and, as noted,
2 In finding this violation, I stress my view that employer inquiries
into union activities do not constitute unlawful interrogation without
any further evidence demonstrating that the conduct tended to interfere
with employees’ Sec. 7 rights.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 968
Rightnour stated that he was not threatened by it. Con-
trary to the majority, as stated in my concurring opinion
in Corner Furniture Discount Center, 339 NLRB No.
146, slip op. at 4 fn. 2 (2003), while I agree with an ob-
jective standard, I believe that the reaction of the em-
ployees, albeit subjective, is not irrelevant but should be
considered along with other relevant evidence in evaluat-
ing whether a statement reasonably tends to interfere
with their exercise of Section 7 rights.3 For these rea-
sons, I do not find that the General Counsel has estab-
lished a violation of the Act in this instance. I therefore
would also dismiss this allegation.
3. Reduction in employees’ hours of work
The judge found that the Respondent reduced employ-
ees’ hours on April 6 and 7 in retaliation for their union
activities. The evidence shows that, on the morning of
April 6, Donaldson sent employee Rick Zundel home
and told employee Douglas Linquist to stay home be-
cause there was a lack of work. Zundel also was sent
home or told not to report the following day. Addition-
ally, Donaldson called employee Randy Melton on the
morning of April 6 and told him to stay home that day.
The next day, April 7, Donaldson instructed Melton to
report for work a bit later than usual. Also on April 7,
employee Joe Crouchet was sent home early by the Re-
spondent.
Contrary to my colleagues, I would not agree that the
Respondent violated Section 8(a)(3) by this conduct.
The judge found that, even during the Respondent’s busy
season of April through November, the Respondent in-
structed employees to stay home, to report later than their
usual starting time, or to go home early when work is
slow. Indeed, Donaldson testified without contradiction
that these incidents occur between three and five times
per week. There was also evidence that it was particu-
larly rainy during the spring of 2000 at the Respondent’s
location. It is undisputed that bad weather would have a
detrimental impact on the Respondent’s ready-mix con-
crete business. Thus, based on the judge’s finding that
the Respondent frequently alters its employees’ working
hours and the rainy weather during the relevant time, I
conclude that the Respondent’s conduct was consistent
with its established practice as set forth by the judge. As
Donaldson testified, the Respondent had a past practice
of telling employees to stay home, report late, or leave
work early as the day-to-day workload fluctuated. This
result is not inconsistent with my finding that the Re-
spondent violated Section 8(a)(3) by subcontracting out

3 I suggested in that case that the Board should revisit precedent
holding that an employee’s subjective reaction is irrelevant to whether
conduct is proscribed by the Act.
unit work during this same period. In separately analyz-
ing each allegation to determine whether a violation ac-
tually occurred, there was no evidence to establish that
the Respondent used outside subcontractors to haul sand
into the facility before union organizing began. Thus,
the subcontracting of such unit work was unprecedented
and the Respondent did not meet its rebuttal burden of
establishing any past practice in doing it. By contrast,
assuming the General Counsel has met his initial burden
regarding the reduction in employees’ hours of work,4 I
accept Donaldson’s testimony on this subject and find
that the Respondent has shown, as required by Wright
Line,5 that it would have taken this action even in the
absence of any union activities. I would separately ana-
lyze each allegation to determine whether a violation
actually occurred. Accordingly, I would dismiss the al-
legation that the Respondent violated Section 8(a)(3) of
the Act by reducing employees’ hours.
4. Refusing to allow employee Raines to punch in early
Contrary to my colleagues, I would reverse the judge’s
finding that the Respondent violated Section 8(a)(3) by
refusing to allow employee David Raines to punch his
timecard before his scheduled starting time. As the judge
found, the Respondent allowed employees to clock in 15
minutes early before their 7:30 to 8 a.m. start time and
get paid for this additional time. Raines, however, fre-
quently punched the timeclock about an hour early and
performed light chores until his actual work began. Be-
fore Raines reported for work at 6:30 a.m. on April 6,
Donaldson removed Raines’ timecard from its usual lo-
cation. Donaldson directed Raines to clock in at 8 a.m.
In this regard, Donaldson testified that:

I guess to summarize the incident that he’s speaking of,
is that historically if I tell Dave to come in at eight
o’clock, he’s in at seven o’clock. And if I tell him to
come in at seven o’clock, he’s in at six o’clock . . . . He
was always punching in anywhere, probably on the av-
4 As my colleagues state, the General Counsel’s initial burden of
showing discriminatory motivation involves proving the employee’s
union activity, employer knowledge of the union activity, and animus
against the employee’s protected conduct. The Board and circuit courts
of appeals have variously described the evidentiary elements of the
General Counsel’s initial burden of proof under Wright Line, some-
times adding as a fourth element, what is otherwise inferred under the
Wright Line analysis, the necessity for there to be a causal nexus be-
tween the union animus (i.e., Sec. 7 animus) and the adverse employ-
ment action. See, e.g., American Gardens Management Co., 338
NLRB No. 76, slip op. at 2 (2002). As stated in Shearer’s Foods, 340
NLRB No. 132, slip op. at 2 fn. 4 (2003), I agree with this addition to
the formulation.
5 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert.
denied 495 U.S. 989 (1982).
DONALDSON BROS. READY MIX, INC. 969
erage, close to an hour earlier than what he was asked
to do. [Tr. 430.]

Donaldson further testified that Raines had “a pattern” of
“not clocking out for lunch” that ceased when he warned
Raines about this conduct. Donaldson said that he wanted
“to bring [Raines’ practice of clocking in early] to a head”
because he again thought that Raines “was padding his time
clock.” In his testimony, Raines admitted that punching in
early was an “issue” before April 6, and that Donaldson
previously told him “probably six to eight times” not to
punch in before 8 a.m.
Even assuming that the General Counsel has met the
initial burden of proving antiunion motivation as the ba-
sis for Donaldson’s conduct, I find that the Respondent
has demonstrated that Donaldson would have taken the
same action in the absence of union activity. The judge
himself stated that Donaldson’s refusal to permit Raines
to clock in an hour early was consistent with the Respon-
dent’s policy of restricting such an early start. The judge
implicitly credited Donaldson’s testimony on this subject
and found that “Donaldson told him this previously but
confronted Raines on April 6 to ‘bring this to a head.’”
Furthermore, the judge found that “Raines conceded that
Donaldson had told him not to clock in early before
. . . .” Thus, contrary to my colleagues’ assertion, I find
that Donaldson previously warned Raines about his prac-
tice of clocking in early and that Raines admitted as
much. Although it appears that this was the first time
Donaldson brought the matter to Raines’ attention in
precisely this manner, Donaldson’s response does not
detract from evidence showing that the Respondent had
prior “issues” with Raines on this account. Furthermore,
the onset of the organizing campaign did not insulate
Raines from the Respondent’s concern with his abuse of
its timeclock. Specifically, the practical result of con-
cluding, as my colleagues do, that the Respondent must
have been acting out of antiunion animus because Raines
signed an authorization card the day before, is to immu-
nize an employee, just because he happens to be pro-
union, from the consequences of the employee’s time-
clock abuse. I am unprepared to make such a causal
connection.

The complaint alleges that Weidow is a supervisor
within the meaning of Section 2(11) of the Act, and that
in that capacity he committed several specifically alleged
violations of Section 8(a)(1). In section 32 of his at-
tached decision, the judge found that Weidow is a super-
visor as alleged, apparently on the grounds (according to
the judge) that Weidow interviewed prospective employ-
ees and recommended them for hiring, recommended
employees for firing, set the working hours for certain
employees, and gave the other two workers in the precast
department daily assignments that were not shown to be
merely routine. In section 33, the judge found that Wei-
dow violated Section 8(a)(1) in certain respects. The
Respondent excepts to the judge’s finding that Weidow
is a supervisor within the meaning of Section 2(11) and
that he violated Section 8(a)(1). My colleagues affirm
the judge’s finding that Weidow is a 2(11) supervisor
and they affirm some of the judge’s consequent findings
of Section 8(a)(1) conduct by Weidow.
To support their 8(a)(3) finding here, my colleagues
rely on Raines’ testimony that all prior warnings he re-
ceived about clocking in early occurred during the Re-
spondent’s November-March winter slow seasons. I
note, however, that the incident here occurred only 6
days after the winter season ended and during a year
which the evidence shows was particularly rainy. Thus, I
find that my colleagues’ reliance on the seasonal timing
of Donaldson’s conduct to support the finding of a viola-
tion is misplaced.
In sum, I stress that, although Donaldson’s decision to
“bring this to a head” occurred immediately after the
organizing campaign began, Donaldson did not impose
any discipline on Raines. He simply enforced the Re-
spondent’s policy of refusing to allow employees to
clock in more than 15 minutes early. By preventing
Raines from again “padding” his time, Donaldson was
only requiring him to comply with the Respondent’s pol-
icy on starting time. My colleagues, in finding a viola-
tion, ignore the Respondent’s legitimate interest in ad-
dressing this situation. For these reasons, I would dis-
miss the complaint allegation pertaining to Raines.

MEMBER WALSH, dissenting in part.
I agree with my colleagues in all respects except (1)
where noted in the majority opinion and (2) in their find-
ing that precast foreman Vernon Weidow is a supervisor
within the meaning of Section 2(11) of the Act.
Contrary to my colleagues and the judge, I find for the
reasons set forth below that the record does not establish
that Weidow is a supervisor within the meaning of Sec-
tion 2(11) of the Act and thus does not establish that
Weidow’s conduct violated the Act.
a. Section 2(11) of the Act
Section 2(11) defines the term “supervisor” as “any
individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees,
or responsibly to direct them, or to adjust their griev-
ances, or effectively to recommend such action, if in
connection with the foregoing, the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 970
b. Facts
Weidow is the foreman in the precast department.1 He
testified without contradiction as follows: Three people
work in the precast department, including him. He has
no office or desk. All of his work is performed on the
work floor. He works side-by-side with the other two
workers in the department. Like them, he is paid by the
hour. (He is paid $14.50, the other two are paid $11.50
and $9.50, respectively.)
Weidow interviews prospective precast department
employees (about 10 interviews in the preceding 3
years). He makes hiring and firing recommendations
about precast department applicants and employees, but
he does not have authority to hire and fire “without au-
thorization.” He recommended that precast employees
Charles Rightnour and Todd Madeen be hired. Madeen
was often late to work and was ultimately discharged
because of that. Weidow spoke with Donaldson a couple
of times about Madeen’s repeated lateness. Madeen re-
ported late for work on April 3 and 5. After Madeen
reported late again on April 6, Weidow again consulted
with Donaldson that same morning, and then informed
Madeen that he was discharged.2
Occasionally, on his own, Weidow will tell an em-
ployee to report to work an hour earlier than normal in
order to “beat the heat,” or an hour later if Weidow has to
be out of the plant at the normal reporting time.
Consistent with Weidow’s testimony, Donaldson testi-
fied as follows: Weidow does not have authority to hire
or fire. While Weidow makes recommendations to
Donaldson, hiring and firing is done with Donaldson’s
“final blessing.” Weidow is required to consult with
Donaldson and present him with the relevant facts re-
garding hiring and firing matters. Alternatively,
Donaldson will review an application himself prior to a
hiring, because of his expressed belief that his 30 years
of experience enable him to “read more into” an applica-
tion than Weidow can.
Donaldson testified that he wants to give Weidow the
leeway to make his own “minor decisions” in the precast
department, and not “micromanage” what Weidow does
there, because to do so would take away from
Donaldson’s performance of his own important duties.
Donaldson testified that he “basically concur[s]” with
any “major decision” that Weidow makes in the precast

1 The precast department makes septic tanks, sewer materials, grave
liners, manholes, and other precast concrete products.
2 The record does not establish who made the decision to discharge
Madeen on April 6. Weidow testified that he consulted with Donaldson
about Madeen on the morning of April 6, after Madeen again reported
late for work, and “the decision [was] . . . [t]o let him go as long as he
was late.”
department, e.g., purchasing new precasting forms and
hiring and firing, but that he does not always agree with
Weidow’s recommendations.
Mixer driver/equipment operator Russell Transue testi-
fied that he works about one third of his time in the pre-
cast department, that when he does he “reports” to Wei-
dow, and that Weidow assigns him work to perform in
the department.
Conveyor truck driver Charles Rightnour formerly
worked in the precast department. He testified, without
elaboration or explanation, that Weidow “hired” him for
precast, and that Weidow gave him “work assignments”
while Rightnour worked in that department.
c. Applicable principles
An individual need possess only one of the enumerated
indicia of authority in order to be encompassed by Sec-
tion 2(11), as long as the exercise of such authority is
carried out in the interest of the employer, and requires
the exercise of independent judgment. California Bever-
age Co., 283 NLRB 328 (1987). “[T]he employee is
[not] required to regularly and routinely exercise the
powers set forth in the statute. It is the existence of the
power which determines whether or not an employee is a
supervisor.” NLRB v. Roselon Southern, Inc., 382 F.2d
245, 247 (6th Cir. 1967). However, only individuals
with “genuine management prerogatives” should be con-
sidered supervisors, as opposed to “straw bosses, lead-
men . . . and other minor supervisory employees.” Chi-
cago Metallic Corp., 273 NLRB 1677, 1688 (1985),
enfd. in relevant part 794 F.2d 527 (9th Cir. 1986).
Therefore, an individual who exercises some “supervi-
sory authority” only in a routine, clerical, or perfunctory
manner will not be found to be a supervisor. Bowne of
Houston, Inc., 280 NLRB 1222, 1223 (1986). Further,
the burden of proving that an individual is a supervisor is
on the party alleging such status. NLRB v. Kentucky
River Community Care, 532 U.S. 706, 712 (2001).3
d. Application of principles
I find that the General Counsel has failed to carry his
burden of producing sufficient evidence to establish that
Weidow is a supervisor within the meaning of Section
2(11) of the Act.
First, the evidence affirmatively establishes that Wei-
dow does not have independent authority to hire or dis-
charge. Second, the record does not recount any instance
in which Weidow was shown to have exercised inde-
pendent judgment in effectively recommending either
hiring or discharge. Rather, the evidence about this as-
3 See generally Arlington Masonry Supply, Inc., 339 NLRB 817
(2003) (Member Walsh dissenting from the finding of supervisory
status in that case).
DONALDSON BROS. READY MIX, INC. 971
pect of Weidow’s alleged supervisory authority is no
more than conclusionary, consisting of only: (1) Wei-
dow’s bare testimony that (a) he has interviewed ap-
proximately 10 applicants in his 3 years as precast fore-
man, (b) he recommended that employees Rightnour and
Madeen be hired, and (c) he consulted with Donaldson
about the decision to discharge Madeen for repeated
lateness; (2) Donaldson’s equally unadorned testimony
that Weidow is required to “consult” with Donaldson
about hiring and discharge, presenting Donaldson with
“relevant facts” before Donaldson bestows his “final
blessing;” and (3) Rightnour’s also unexplained testi-
mony that Weidow “hired” him for precast.4 This con-
clusionary testimony fails to establish that Weidow exer-
cised independent judgment in carrying out any of these
functions. Thus, it falls short of establishing that Wei-
dow possesses supervisory authority within the meaning
of Section 2(11) effectively to recommend hiring or dis-
charge.5
Likewise, the record does not recount any instance in
which Weidow was shown to have exercised independ-
ent judgment in assigning or responsibly directing the
work of the other two precast workers. Rather, the evi-
dence about this aspect of Weidow’s alleged supervisory
authority, like the evidence about his alleged hiring and
discharge authority, is no more than conclusionary, and
fails to establish that any authority exercised by Weidow
to assign and direct the work of the other two precast
workers was more than routine in nature and instead re-
quired the exercise of independent judgment.
On this aspect of his alleged supervisory authority,
Weidow testified only that he will occasionally tell an
employee to report for work an hour early, “to beat the
heat,” or an hour late, if Weidow was going to be out of
the plant at that time. Donaldson testified only that while
he wants to give Weidow leeway to make his own “mi-
nor” decisions in the precast department, Donaldson
“concurs” with any “major” decisions made by Weidow
in the department. Donaldson provided no examples at
all of any such “minor” decisions, and no specific exam-
ples of any such “major” decisions, giving only two gen-
eral examples of the latter: purchasing new precasting
forms and “hiring new people, firing people” (see discus-
sion above of this latter aspect). Transue testified, with
equal lack of specificity, that when he is working in the
precast department (about one third of Transue’s time),

4 Transue, on the other hand, testified that Weidow had no role in
hiring him.
5 See Chevron Shipping Co., 317 NLRB 379 fn. 6 (1995), citing
Sears, Roebuck & Co., 304 NLRB 193 (1991) (conclusionary state-
ments made by witnesses in their testimony, without supporting evi-
dence, do not establish supervisory authority).
he “reports” to Weidow. Finally, both Transue and
Rightnour testified, without explanation, elaboration, or
specific examples, that Weidow gives them “assign-
ments.”
The above conclusionary testimony about Weidow’s
assignment and direction of work in the precast depart-
ment fails to establish that any authority he exercised to
assign and direct the work of the other two precast work-
ers was more than routine in nature and instead required
the exercise of independent judgment within the scope of
Section 2(11) of the Act.6
Finally, there is no evidence at all that Weidow pos-
sesses any of the other indicia of supervisory authority
contained in Section 2(11). In light of all of the above
considerations, the General Counsel has failed to estab-
lish that Weidow is a supervisor within the meaning of
Section 2(11) of the Act.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT create the impression that our employ-
ees’ protected concerted or union activities are under
surveillance.
WE WILL NOT coercively interrogate our employees
about their protected concerted or union activities.
WE WILL NOT threaten to discharge our employees who
engage in protected concerted or union activities.
WE WILL NOT misstate to our employees that they will
lose their Employee Stock Ownership Plan if they select
International Union of Operating Engineers, Local 400,
AFL–CIO (the Union) as their collective bargaining rep-
resentative.
6 See Palagonia Bakery Co., 339 NLRB No. 74, JD slip op. at 20–21
(2003) (Saintvil, Arroyave, Justi, Sigismondi).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 972
WE WILL NOT threaten our employees that they will not
receive higher wages if they select the Union to represent
them.
WE WILL NOT denigrate our employees who support the
Union.
WE WILL NOT order employees to remove prounion
stickers from their hard hats.
WE WILL NOT promulgate rules that restrict our em-
ployees from engaging in lawful picketing.
WE WILL NOT implement rules banning off-duty em-
ployees from our premises in retaliation for their pro-
tected concerted or union activities.
WE WILL NOT lay off our employees because they en-
gage in protected concerted or union activities.
WE WILL NOT subcontract out unit work because our
employees engage in protected concerted or union activi-
ties.
WE WILL NOT reduce our employees’ hours in retalia-
tion for their protected concerted or union activities.
WE WILL NOT refuse to permit our employees to clock
in early for work in retaliation for their protected con-
certed or union activities.
WE WILL NOT transfer our employees to different jobs
in retaliation for their protected concerted or union ac-
tivities.
WE WILL NOT grant our employees wage increases de-
signed to undermine their support for the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL reinstate employee Allen Dukelow to his
former job as a cat loading machine operator or, if that
job no longer exists, to a substantially equivalent position
without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make employees whole for any loss of earn-
ings and other benefits they may have suffered as a result
of Allen Dukelow’s unlawful job transfer, James West’s
discriminatory layoff, the Respondent’s unlawful sub-
contracting out of unit work about April 6, 2000, Joe
Crouchet’s, Douglas Linquist’s, Randy Melton’s, and
Rick Zundel’s unlawful reduction in hours on April 6
and 7, 2000, and David Raines’ discriminatory treatment
regarding his clocking in early for work.
WE WILL expunge from our records any reference to
Allen Dukelow’s unlawful transfer, James West’s unlaw-
ful layoff, the unlawful reduction in hours affecting em-
ployees Joe Crouchet, Douglas Linquist, Randy Melton,
and Rick Zundel, and the discriminatory refusal to allow
employee David Raines to clock in early for work, and
notify them in writing that this has been done and that
these actions will not be used against them in any way.
DONALDSON BROS. READY MIX, INC.

Daniel R. Sanders, Esq., for the General Counsel.
Samuel M. Warren, Esq. (St. Peter & Warren), of Missoula,
Montana, for the Respondent.
Timothy J. McKittrick, Esq., of Great Falls, Montana, for the
Union.
DECISION1
I. STATEMENT OF THE CASE
JERRY M. HERMELE, U.S. Administrative Law Judge. In a
June 30, 2000 complaint, the General Counsel alleges that the
Respondent, Donaldson Bros. Ready Mix, Inc., committed
numerous violations of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act following the employees’ April
2000 selection, by signing union cards, of the International
Union of Operating Engineers, Local 400, AFL–CIO, to be
their collective-bargaining representative. Thus, even though
no election was ever held, the General Counsel seeks an order
requiring the Respondent to bargain with the Union. In a July
12, 2000 answer, however, the Respondent broadly denied
these allegations.
So, a trial was held in Hamilton, Montana, on August 22 and
23, 2000, during which the General Counsel called 18 wit-
nesses and the Respondent called 10 witnesses. Then, briefs
were filed by the Respondent on September 25, and by the
General Counsel on September 26.
II. FINDINGS OF FACT
The Respondent, a $4 million business based in Hamilton,
Montana, is the Bitterroot Valley’s largest seller of ready-mix
concrete, sand, and gravel. Annually the Company purchases
and receives over $50,000 in interstate goods. Charles
Donaldson is the Company’s president and 49 percent owner,
with 51 percent being owned by the approximately 25 employ-
ees through an employee stock ownership plan (ESOP) (GC
Exhs. 1(q), (s); R. Exhs. 1–2; Tr. 290, 316–17, 371–72, 379).
The ESOP was created in 1995 and is 100 percent employer-
funded. Since 1995, Donaldson has timely paid into the ESOP
and in fact has overpaid at times. Employees represented by a
union could be excluded from the ESOP; a standard exclusion
for most closely-held companies. If a union came to represent
the employees, the employees’ accounts would be frozen, the
employer would make no more contributions, and the accounts
would be distributed to the employees upon their retirement.
Otherwise, with no union, each employee would vest after 6
years and receive up to 43 percent of their salary upon retire-
ment (R. Exhs. 1–2; Tr. 296, 298–99, 302–03, 319–20, 326–27,
330).
With the population growth of the Bitterroot Valley since
1970, and the corresponding increase in residential construc-
tion, the Company’s business has grown. But the four winter
months of December to March are usually slow, resulting in
layoffs and only part-time work for the employees (Tr. 116,

1 Upon any publication of this Decision by the National Labor Rela-
tions Board, unauthorized changes may have been made by the Board’s
Executive Secretary to the original Decision of the presiding judge.
DONALDSON BROS. READY MIX, INC. 973
373, 378–80). The Company usually hires new employees via
referrals from the State job service. But occasionally the Com-
pany hires new people directly. One such person was James
West, whom Donaldson interviewed and hired as a mechanic in
June 1999. West disclosed beforehand that he was a union
member (Tr. 181–83, 405–09, 490).
On Monday, April 3, 2000, at 5:30 p.m., Donaldson called
employee Allen Dukelow to his office, suspecting that a union
organizing campaign was underway. Commenting that
Dukelow was probably leading the effort, Donaldson inquired
whether Dukelow knew anything about a union. Donaldson
then showed Dukelow three pieces of paper he had prepared
comparing his Company’s pay rate and benefits with two local
unionized companies (GC Exh. 11; Tr. 50–53, 385–88). Ac-
cording to Dukelow, Donaldson said that if the Union came in
there would be no more overtime for the employees, that the
maximum hourly wage would be no higher than the rate paid
by those local unionized companies, and that he would reduce
his contribution to the ESOP (Tr. 54–55). Donaldson, however,
denied threatening to reduce Dukelow’s wages or overtime.
Rather, according to Donaldson, he told Dukelow that he had
the right to unionize (Tr. 389–90).
On Wednesday, April 5, Donaldson laid off mechanic James
West, telling West that there was insufficient work. But there
was scheduled work to be done in the mechanic’s department
that day, and the only other full-time mechanic, William
Meuchel, was scheduled to be on vacation starting the next day
(Tr. 186–87, 334, 339–40). Donaldson denied that there was
any connection between his decision to lay off West and West’s
union status (Tr. 415–17). Because of West’s layoff, two out-
side mechanics had to perform repairs on three company vehi-
cles, on April 7, 8, and 12, costing $587.30 (GC Exhs. 12–14).
But Donaldson claimed that this was cheaper than keeping
West on salary (Tr. 417–18). Neither of these two companies,
however, was used for vehicle repair work before. While the
Company sometimes farmed out vehicle repair work, Meuchel
and West believed that West could have done this particular
work adequately (R. Exhs. 5–6; Tr. 176–78, 188–89, 336–37,
341). West was the only employee laid off in 2000 (Tr. 418–
19). He was rehired for 2 weeks in May 2000, and then let go
again (Tr. 420–21).
After work that evening, union organizer Sandi Curriero ob-
tained 22 signed authorization cards, plus two more cards the
next day (GC Exhs. 3, 10; Tr. 18–20). On Thursday morning,
April 6, she visited the Company with two others, Quinton
Roland and Bob Paddock, and showed the cards to Donaldson,
requesting that Donaldson recognize the Union as the employ-
ees’ representative. Donaldson responded that he needed to
talk to a lawyer. The three union officials then asked for job
application forms. Donaldson said there may be some open-
ings, and all three filled their applications out and turned them
in. None of them ever received a response. Shortly thereafter,
another group of union applicants, including John Owens, ap-
plied and were told by Donaldson to apply with the State job
service (Tr. 24–28, 146–55, 166–72).
The employees typically start work at 7:30 to 8 a.m. If work
is slow, even during the busy season, Donaldson would some-
times tell an employee to come in later for the next day by tell-
ing them at work that evening or calling them at home early in
the morning. Donaldson also sends employees home in the
middle of the day (Tr. 381–82, 435–40). On the morning of
April 6, Donaldson sent home employee Rick Zundel; the first
time such a thing happened to Zundel. He had signed one of
the union cards the night before. On his way home, Zundel
noticed that another employee was driving his truck. Zundel
was also sent home again or called at home and told to stay
home for the day (Tr. 41–43, 216–17). Donaldson also called
card-signing employee Randy Melton on the morning of April
6 and told him to stay home that day. That had never happened
before to Melton during the Company’s busy season of April
through November. And the next day, April 7, Donaldson told
Melton to come to work a little bit later than usual; another first
for Melton (Tr. 114–16, 120). Also on April 6, employee
Douglas Lindquist, who had signed a union card, was called at
home that morning and told to stay home. This had happened
to Lindquist before (Tr. 197). Also on April 6, when card-
signing employee David Raines came to work at around 6:30
a.m. he was unable to find his timecard to punch in. Donaldson
had taken the timecard and told Raines not to punch in until 8
a.m. (Tr. 213–14). Donaldson told him this previously but
confronted Raines on April 6 to “bring this to a head.” Previ-
ously, the Company allowed employees to clock in 15 minutes
early, but Raines was habitually 1 hour early (Tr. 429–33).
Employee Joe Crouchet, who also signed a union card, was sent
home early on April 7 (Tr. 83–84).
On April 6, employee Todd Madeen, who was hired on
March 7, was fired. Supervisor Vern Weidow recommended
this action to Donaldson because Madeen was again late to
work on April 5 as well as once before that week (Tr. 364–66).
Madeen’s timecards reveal that he was 5 minutes late on March
14, 31 minutes late on March 15, 3 minutes late on March 16, 2
minutes late on March 17, 2 minutes late on April 3, and 5
minutes late on April 5 (R. Ex. 11). According to employee
Charles Rightnour, Madeen was late to work “almost every
day” (Tr. 228, 236).
Before April 5, Supervisor Al Widdifield saw employee
Dukelow using his cellular telephone several times while work-
ing (Tr. 478–81). Dukelow, however, testified that he used the
phone only after ceasing work on his loading machine, and then
only three times at that (Tr. 70–71). Dukelow was a fire de-
partment official.2 According to Dukelow, Donaldson permit-
ted him to use the phone provided work was not interfered with
(Tr. 59–60). But Donaldson denied granting permission. And
when Widdifield brought the matter to his attention, on April 7,
Donaldson told Dukelow to use the phone only during lunch or
if there was a real emergency (Tr. 426–28).
According to Wayne Weidow, Supervisor Vern Weidow’s
nephew, Dukelow said that he had Donaldson “where he
wanted him and [was] going to ram something up his ass” (Tr.
293). Dirk Wolff, the owner of Ideal Construction, which does
a great deal of business with Donaldson, also heard Dukelow
say this (Tr. 286–90). Dukelow denied saying such a thing (Tr.
76–77).

2 There were serious fires in western Montana during the summer of
2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 974
Also on April 7, trucks from local construction firms J-5,
Rapid Excavating, and Ellis Bruhner hauled in sand to the Re-
spondent’s plant. Some of the Respondent’s trucks were idle
that day. Normally, outside help was utilized only when all the
Respondent’s trucks were in use, and then only to haul material
out of the plant (Tr. 61–62, 85, 117, 123–25, 135–36, 139–41,
201–02). Donaldson denied that the use of these outside con-
tractors that day was connected to the Union. Rather, he testi-
fied that he used them for a “multitude of reasons,” noting that
he used J-5 before April 2000 (Tr. 441–45).
On either April 7 or 10, management transferred Dukelow
from the mixer job he performed for 5 years to a new “jack of
all trades” job. This new job yielded about 5 hours of weekly
overtime as opposed to the 10-20 hours in the mixer job. But
Dukelow had previously worked at other jobs, having been
with the Company for 23 years (Tr. 49, 57–58, 79–80). On
April 14, the Union sent a letter to Donaldson stating that em-
ployees Dukelow and Eldon Wolfe were the lead organizers
and reminding the Company not to retaliate against them (GC
Exh. 4).
Sometime in mid-to-late April, employee Earl Stueve re-
ceived a written warning for not wearing his hard hat after
Donaldson noticed him without one. The Company instituted a
new policy requiring the wearing of hard hats at all times be-
ginning April 1. From January 1998 to the end of April 2000,
Stueve was only one of two employees to receive a written
discipline for any violation of company rules (Tr. 157–58, 180,
455–57).
After the union effort began, one of the company telephones
was off the hook a few times. Employee Scott Neumann testi-
fied that Donaldson took a telephone off the hook, and said
“[w]e’re going to slow things down around here a little bit” (Tr.
34–35, 39, 125–26). Donaldson denied ever telling anyone to
take a telephone off the hook or trying to slow down business.
And even if a telephone were off the hook, Donaldson ex-
plained that other incoming lines would still be available (Tr.
383–85). But he added that a telephone was taken off the hook
in April to compensate for the absence of a clerical worker that
day (Tr. 452–53). Bookkeeper Janet Born, however, was never
told to take a telephone off the hook or to slow down business
(Tr. 246, 250).
On April 10, Donaldson posted the following notice for
about a week (Tr. 463):

IMPORTANT NOTICE TO ALL EMPLOYEES

In the event that the Operating Engineers or any other
labor organization commences picketing at any of the
Company’s facilities, it is important that all employees be
informed that they will be expected to report to work as
normal. Since Donaldson Bros. Ready Mix has no legal
relationship with any union, employees do not have the
right to withhold their services by recognizing a picket
sign.
Therefore, any employee who fails to report to work
based on the union’s picketing of our facilities or for any
other unauthorized reason will be considered absent with-
out authorization. Employees who are absent without au-
thorization and fail to report to work are risking their em-
ployment and may be terminated.

(GC Exh. 2). The same day, Donaldson sent each employee a
list of “non-permissible conduct by company management” and
“permissible conduct” during the union campaign.
Donaldson’s lawyer supplied him with this information (R.
Exhs. 3–4).
Before the union effort began, Donaldson allowed employee
Douglas Lindquist to use the company shop for personal pro-
jects during nonwork hours (Tr. 202). But after April 6, em-
ployee Joseph Crouchet testified that Donaldson denied his
request to use a company truck to get gravel at a discount (Tr.
518). Donaldson testified that he never denied anyone’s re-
quest (Tr. 467–68). Moreover, he stated that since April 6 he
still allows employees to “use the shop or haul gravel home on
their own time” (Tr. 412–13).
On April 17, all employees received the following enclosure
with their paychecks:

Beginning Monday night, Donaldson Bro’s. Ready
Mix will have, on staff, an armed security guard for the
plant and pit. The management feels this precaution is
necessary for the protection of all our equipment during
these times.
This precaution is protection from the outside public,
as we all know they are some “loose cannons” out there
that would get a thrill out of causing some mischief. This
has nothing to do with the employees of Donaldson Bro’s.
Ready Mix, but again we feel we need to protect our
equipment as well as yours.
Therefore, employees will not be allowed on the prem-
ises unless you are punched in on the clock.

(GC Exh. 5). Donaldson issued this notice to prevent vandal-
ism. Also in that connection, he hired a security company to
protect the premises because the plant usually closes at 6 p.m.
(Tr. 410–12).
During the week of April 10, the Union held a second meet-
ing with the employees. Vernon Weidow, the precast foreman
for 3 years, attended. Weidow interviews employees for jobs at
the Company and recommends hiring and firing employees to
Donaldson (Tr. 97–98, 347, 364–65, 459). He also instructs
employees when to report in the morning (Tr. 369–70). At the
meeting, Weidow said that the employees should reject the
Union because the Union would ruin the ESOP (Tr. 101, 184–
86). Weidow had said the same thing to employee Rightnour
on April 6 (Tr. 227–28). Weidow testified that he told the em-
ployees to wait a few years until they were 100 percent vested
in the ESOP (Tr. 352–54). Weidow reported the events of the
meeting to Donaldson (Tr. 367).
Sometime after the union organizing campaign began, em-
ployee Douglas Lindquist wore a union sticker on his hard hat.
Weidow told Lindquist, his brother-in-law, to remove the
sticker and “quit this Union thing” (Tr. 200, 350–51).
On April 21, management met with the employees to discuss
the ESOP, and the ramifications of any sale of the Company.
Three potential buyers had approached Donaldson in late 1999
and early 2000. This was the first such meeting with employ-
ees since the creation of the ESOP in 1995. According to em-
DONALDSON BROS. READY MIX, INC. 975
ployees Eldon Wolfe and William Keiser, Donaldson said that
he would no longer make voluntary contribution to the ESOP
and that he would sell the Company (Tr. 103–06, 211–12, 307–
08, 313–14, 390–92). Donaldson denied threatening to discon-
tinue his contribution to the ESOP (Tr. 393). Donaldson’s
lawyer, Don St. Peter, who created the ESOP, testified that
Donaldson did not threaten to discontinue his participation.
Rather, Donaldson advised the employees that if the Company
were sold, the ESOP assets would be distributed to the employ-
ees. And because of the ESOP, the employees had the right to
vote on any sale of the Company (Tr. 294, 309–13).
After the meeting, Weidow asked employee Russell Transue
if he still supported the Union. Weidow added that if the Union
came in, the employees would lose all their ESOP money (Tr.
142–43). Weidow denied asking any employee about his union
activity. But he did tell employees that there would be no
higher wages if the Union came in (Tr. 360–61). And he “may
have” said that the employees were stupid for supporting the
Union (Tr. 361, 369). Employee Charles Rightnour also testi-
fied that shortly after April 5, Weidow had asked if he signed a
union card, and Weidow then jokingly said that Rightnour
would be getting some competition from a new employee (Tr.
237, 240–41, 359–60).
According to Rightnour, Donaldson said in late April he
would like to fire or “shit can” all the employees but couldn’t
because the Company needed to operate (Tr. 230, 238).
Donaldson could not recall making such a threat (Tr. 393–94).
Again, 24 of 26 employees signed union authorization cards
(GC Exhs. 3, 8, 10).3 According to Donaldson’s wife, Office
Manager Cathy Donaldson, those who signed cards did not
have their hours systematically reduced. Rather, some employ-
ees received more hours after April 6 and some received less on
a random basis (Tr. 493, 495). Employee James Garcia started
work on March 27 after Donaldson told him to expect 50 hours
a week. Garcia signed a union card and worked as follows:

Week of Hours Per Week

March 27 48.46
April 3 55.73
April 10 44.10
April 17 13.67
April 24 49.82
May 1 25.19
May 8 26.43
May 15 35.31
May 22 0
May 30 24.54

Garcia was on vacation during the week of May 22 and left in
late May when Donaldson told Garcia there was not enough
work (R. Exh. 10; Tr. 31–38). During the workweek of April
10, for 10 card-signing employees, eight received anywhere
from 4 to 17 less hours than the last week they worked. But
two card-signers received more hours (R. Exh. 10).

3 GC Exh. 8 contains the names of 28 (not 26 as listed) workers, as
of April 10, two of whom are supervisors, and one who was hired on
April 10.
According to Donaldson, there was no set policy on when
employees receive pay raises except that it occurs annually (Tr.
448–52). Indeed, company records reveal that in 1997, most
employees received 50 cents an hour raises in November; in
1998 most employees received raises in July; and in 1999 most
employees received raises in October and November (R. Exh.
7). But three drivers received 50-cent raises in January 2000,
just a few months after their 1999 raises, as well as raises in
May 2000. Employee Dukelow testified that he always re-
ceived a pay raise in the fall; a view shared by employee Eldon
Wolfe. And for 2000, all employees, other than the clerical
staff, received 50-cent raises on May 19 (R. Exh. 7; Tr. 64,
107).
III. ANALYSIS
The General Counsel alleges that the plethora of 8(a)(1) and
(3) violations committed by the Respondent immediately after
the union organizing campaign got underway in April 2000
warrants an order requiring the Respondent to recognize and
bargain with the Union, thus dispensing with an election. The
Respondent, in its brief, disputes all of the alleged violations,
but says nothing about possible remedies in this case.
A. 8(a)(1) Violations
The first alleged violation concerns Donaldson’s meeting
with Dukelow on April 3, when Donaldson called him into his
office to discuss the brewing union effort. Donaldson conceded
that he asked Dukelow whether a union organizing campaign
was underway and commented that Dukelow was probably
behind it. Clearly, Donaldson’s statement that he knew the
identity of the union supporters created an unlawful impression
of surveillance of the employees’ union activity. Hamilton
Plastic Products, 309 NLRB 678, 684 (1992). Likewise, it was
unlawful for Donaldson to interrogate Dukelow about the Un-
ion in his office. Dealers Mfg. Co., 320 NLRB 947, 948
(1996). Donaldson, however, denied threatening to eliminate
overtime or reduce wages if the employees unionized. Instead,
Donaldson maintained that he told Dukelow that he had the
right to unionize and simply offered him written comparisons
of the benefits the employees were currently receiving versus
those received by employees in other unionized companies in
the area. Dukelow, on the other hand, testified that Donaldson
threatened to eliminate overtime, reduce wages, and reduce the
ESOP contribution.
The presiding judge resolves the additional aspects of the
April 3 meeting in the Respondent’s favor. Initially, the presid-
ing judge found Donaldson to be a generally credible witness.
While Dukelow and Donaldson had different versions of what
was said, Dukelow demonstrated a certain degree of untrust-
worthiness by denying a threat to “screw” Donaldson; a threat
corroborated by two other credible witnesses. Also, as dis-
cussed infra, Dukelow testified incorrectly about the Com-
pany’s timing of pay raises. Further, Dukelow’s allegations of
threats during the April 3 meeting are largely predicated on
Donaldson’s written comparisons regarding the two unionized
companies’ wage rates and benefits. But nobody questioned
the accuracy of these comparisons and they show that the union
companies had some better, and some worse, aspects than the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 976
Respondent. Thus, it is concluded that the written compari-
sons, based on objective facts, were lawful. Deer Creek Mining
Co., 308 NLRB 743 (1992).
The second 8(a)(1) violation concerns the Respondent’s al-
leged new job application policy on April 10, whereby applica-
tions would have to be submitted to a State job service rather
than to the Company. In this regard, the General Counsel relies
on applicant John Owens’ testimony that Donaldson told him to
file his application with the State job service. But Donaldson
and his wife credibly testified that the Company’s usual prac-
tice as of April 2000 was to use the State job service to hire
new employees, especially when gearing up for the new work
season in the spring (Tr. 405–06, 490). But they both acknowl-
edged exceptions. In this regard, the first group of three union
applicants who applied on April 6 were all able to file applica-
tions directly with the Respondent. So, the General Counsel
has failed to prove that the Respondent adopted a new, restric-
tive job application policy in response to the April 2000 union
organizing effect.
The third alleged 8(a)(1) violation concerns the Respon-
dent’s posting of two employee notices: an April 10 notice that
employees who failed to work because of any union picketing
could be fired; and an April 17 notice that an armed security
guard would be present at night to protect the Company’s
equipment from “loose cannons” among the general public.
The General Counsel contends that the April 10 notice was
intimidating and legally incorrect, and that the Respondent
presented no evidence to justify the necessity of the April 17
notice.
The picketing notice did not specifically limit the employ-
ees’ right to strike or to engage in any protected concerted ac-
tivity. But it prohibited the employees from honoring any pick-
eting by the instant Union “or any other labor organization
. . . .” In the presiding judge’s view, this prohibition was too
broad and thus violated Section 8(a)(1) because nonstriking
employees who refuse to cross a picket line maintained by a
picketing union, for example, may not be fired. See ABS Co.,
269 NLRB 774 (1984); Redwing Carriers, Inc., 137 NLRB
1545 (1962). As for the April 17 security guard notice, it is
essential to determine whether this employer action reasonably
tended to chill employees in the exercise of their Section 7
rights or whether the policy addressed the employer’s legiti-
mate business concerns. Lafayette Park Hotel, 326 NLRB 824,
825 (1998). Although it is conceivable that the notice could be
read to scare employees about union-inspired vandalism, it is
highly significant that the General Counsel fails to cite any
authority showing the inherent illegality of this type of notice.
Thus, the presiding judge cannot simply conclude that the lan-
guage reasonably tended to chill the employees’ Section 7
rights. Moreover, Donaldson testified persuasively that vandal-
ism was a legitimate concern for him in mid-April. Although
there is no evidence that vandalism occurred before April 17,
the presiding judge believes it would be unfair to require van-
dalism prior to allowing the Respondent to take reasonable
steps to prevent such misconduct. Hence the allegation regard-
ing the April 17 notice will be dismissed.
The fourth set of 8(a)(1) allegations concern Vern Weidow,
whom the Respondent contends is only a “lead man” with lim-
ited supervision over as few as two employees. But regardless
of how many men were in this unit, the evidence shows that
Weidow, who has been in his current position for 3 years, in-
terviewed prospective employees, recommended their hiring,
recommended which employees should be fired, and set the
working hours for certain employees. Further, two employees
in Weidow’s unit testified that Weidow gave them daily as-
signments, and the Respondent has not shown that these as-
signments were merely routine (Tr. 139, 227). Moreover, Wei-
dow ordered an employee to remove a union sticker from his
hard hat. Therefore, it is concluded that the General Counsel
has successfully proven that Weidow possesses at least one of
the indicia of authority set forth in Section 2(11) of the Act, and
thus is a supervisor. Compare Hausner Hard-Chrome of KY,
Inc., 326 NLRB 426 (1998).
Turning to the allegations of misconduct by Weidow, the
General Counsel first points to an April 2000 conversation
between Weidow and employee Rightnour in which Weidow
said that Rightnour would be getting job competition because
he signed a union card. But both men testified that this was a
lighthearted remark said in jest. Thus, it is concluded that this
particular statement did not violate the Act. See Reeves Bros.,
Inc., 320 NLRB 1082, 1084 (1996). But Weidow’s jokes
ended thereafter. Specifically, he attended the April 10 union
meeting with the employees and reported the events thereof to
Donaldson. Although the Respondent correctly notes that no-
body barred Weidow from attending, and that Weidow merely
wanted to voice his opinion about the Union’s effect on the
ESOP, it is well-settled that a supervisor’s “surveillance” of a
union meeting violates Section 8(a)(1) even if it is motivated by
his own curiosity. Superior Container, 276 NLRB 521, 526
(1985). Further, Weidow admitted that he told the assembled
employees to reject the Union now because they would not be
fully vested in the ESOP for a few years. Objectively, how-
ever, Weidow was wrong: employees with 6 years’ service
were fully vested in the ESOP. Thus, Weidow’s statement
constituted another violation of Section 8(a)(1). Similarly,
Weidow’s April 21 remark to employee Transue that the Union
would cost the employees their ESOP money violated the Act,
as did Weidow’s inquiry to Transue whether he still supported
the Union; an inquiry not specifically denied by Weidow.
Next, Weidow admitted saying to employees that there would
be no higher wages if the Union came in, and “may have” said
that the employees were stupid for supporting the Union—all
additional 8(a)(1) violations. Finally, he also told employee
Lindquist in mid-to-late April to remove a union sticker from
his hard hat and to “quit this union thing;” another illegal act
notwithstanding the Respondent’s legally unsupported defenses
that Weidow was Lindquist’s brother-in-law and not his direct
supervisor.
Fifth, according to employee Rightnour, Donaldson said on
approximately April 29 that he would like to “shit can” or fire
all the employees but couldn’t because he needed them to oper-
ate the Company. Donaldson simply could not recall making
such a statement. Further, the Respondent incorrectly reads the
record in arguing that Donaldson’s remark was jokingly made
(Tr. 238–39). While it is true that Donaldson’s threat was
equivocal because he also told Rightnour that it would not hap-
DONALDSON BROS. READY MIX, INC. 977
pen, the test for determining the illegality of an employer’s
statement is whether the conduct reasonably tended to interfere
with an employee’s Section 7 rights, not the employer’s actual
intent in making the statement. Frontier Hotel & Casino, 323
NLRB 815, 816 (1997). Thus, Donaldson’s statement violated
Section 8(a)(1).
The final 8(a)(1) allegation concerns the Respondent’s 1995
ESOP, which excludes employees covered by a collective-
bargaining agreement. According to the General Counsel, the
summary description of the ESOP (R. Exh. 2), contains this
exclusionary language, contrary to the ESOP itself (R. Exh. 1).
But the summary also states that if there is a conflict between
the language of the summary and the ESOP itself, the latter’s
language controls. Further, the Respondent’s tax lawyer coun-
tered that this exclusion is common for small companies such
as the Respondent’s. As such, it cannot be concluded that this
5-year-old “statement” reasonably tended to chill the employ-
ees’ exercise of their Section 7 rights. Lafayette Park Hotel,
supra.
B. The 8(a)(3) Allegations
After the union organizing campaign started in early April
2000, the General Counsel alleges that the Respondent commit-
ted a host of unfair labor practices against various employees.
To prove its allegations, it must show by a preponderance of
the evidence that the employees’ protected Section 7 activity
was a motivating factor in the Respondent’s various actions
against these employees. If so proven, the burden then shifts to
the Respondent to show, also by a preponderance of the evi-
dence, that its actions were based on lawful reason(s), and
would have occurred absent the protected activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in Transpor-
tation Management Corp., 462 U.S. 393 (1983).
First, there is the matter of Donaldson’s April 5 decision to
lay off employee James West for approximately 3 weeks. The
General Counsel contends that Donaldson named West as a
likely union supporter in his April 3 meeting with Dukelow (Tr.
51), and retaliated against West after learning of the organizing
campaign. Upon a review of the evidence, it is concluded that
the General Counsel has met his Wright Line burden of show-
ing that West’s union activity motivated Donaldson to lay him
off. Donaldson named West as a likely union supporter to
Dukelow on April 3; an illegal creation of the impression that
he was surveilling the Union’s efforts, as discussed supra in
paragraph 27. Also, Donaldson illegally interrogated Dukelow
about the Union that day. Thus, the Respondent’s two viola-
tions of Section 8(a)(1) of the Act on April 3, and suspicious
timing of the decision to lay off West just 2 days later, estab-
lishes union animus by Donaldson. As for the Respondent’s
defense that it was merely saving money by laying off West, it
is significant that West was the only such layoff through mid-
2000. Also, it is inexplicable why West would be laid off ex-
actly when work needed to be done in his shop the next day and
the lead mechanic was set to go on vacation that same day.
Therefore, it is concluded that the Respondent’s decision to lay
off West on April 5 violated Section 8(a)(3). However, West
was recalled for work in May and the General Counsel does not
allege anything improper about West’s termination shortly
thereafter.
The second set of alleged 8(a)(3) violations concern the re-
duction of employees’ hours. First, on April 6, the day he was
presented with the signed union cards, Donaldson sent em-
ployee Zundel home early and called employees Melton and
Lindquist and told them to stay home. Zundel was restricted to
some part-time days thereafter, and Melton worked less than a
full day on April 7, as did employee Crouchet. Because, as
discussed supra, there is evidence of union animus by
Donaldson as of April 3, the burden shifts to the Respondent to
justify these actions. Although there is evidence, from
Donaldson and the affected employees, that hours were reduced
before April 2000, depending on the Company’s workload for a
particular day, the Respondent has failed to advance a specific
reason(s) for the reduction of hours for employees Zundel,
Melton, Lindquist, and Crouchet. Hence, the General Coun-
sel’s showing of union animus has not been rebutted. Second,
it is alleged that Donaldson confronted employee Raines on
April 6 and told him not to punch in early anymore. Raines
conceded that Donaldson had told him not to clock in early
before and it is uncontested that Raines’ early clock-ins were
contrary to the Respondent’s established practice. Again, how-
ever, the Respondent has failed to explain specifically why
Donaldson brought this matter to a head on April 6. Thus, it is
concluded that the action against Raines was prompted by un-
ion animus.
Third, the General Counsel broadly alleges in paragraph
12(a) of the complaint that since April 6 the Respondent dimin-
ished unnamed employees’ hours, which the presiding judge
reads to encompass the litigated matter of outside contractors
which were used to perform various jobs, and the Respondent’s
attempt to slow down business by taking its telephone off the
hook.4 Specifically, on April 7, the Respondent subcontracted
work out to three local construction companies, mainly to haul
material in to the Respondent’s plant, while some of the Re-
spondent’s trucks were idle. Although the evidence reveals that
the Respondent subcontracted out work before April 7, that was
done to haul material out of the plant and when all the Respon-
dent’s trucks were in use. Further, Donaldson offered only a
vague justification for this change of practice as of April 7.
Therefore, given the Respondent’s existing union animus, it is
concluded that this temporary subcontracting practice violated
Section 8(a)(3). As for the allegation that Donaldson took one
of the company telephones off the hook, employee Neumann
testified that Donaldson said that he was going to “slow things
down” a little bit. Donaldson denied saying this and this al-
leged statement is ambiguous at best. Moreover, Donaldson
explained that a telephone was taken off the hook in April be-
cause of the absence of a clerical employee. So, no violation
can be found regarding this matter.
Fourth, it is alleged that the firing of new employee Todd
Madeen on April 6 violated the Act. In the General Counsel’s
view, Madeen’s lateness was not significant and warranted
discipline less than termination. The record is silent whether

4 The General Counsel clarified this allegation with a September 19,
2000 motion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 978
the Respondent had a progressive disciplinary system for tardi-
ness. As for Madeen, who did not testify but signed a union
card, he was hired in early March and was late on March 14,
15, 16, and 17. After this initial burst of tardiness, Madeen’s
problem resumed on April 3 and 5, albeit he was late by 2 and 5
minutes, respectively. Nevertheless, given Madeen’s track
record, the presiding judge concludes that the Respondent’s
decision on April 6 appears justified, notwithstanding its exist-
ing union animus. Madeen’s tardiness had started again on
April 3 and he was late yet again on April 5. Also, evidence
submitted by the Respondent regarding two other employees’
timecards indicates no disparate treatment of Madeen (R. Exh.
11). Therefore, this aspect of the General Counsel’s complaint
will be dismissed.
Fifth, on either April 7 or 10, employee Dukelow was trans-
ferred from his mixer job to a jack-of-all-trades position, result-
ing in about 5-to-10 less overtime hours a week, including not
working that Saturday, April 8. Dukelow testified that the new
position was less desirable because it offered less consistent
hours. Given the existing animus against Dukelow, one of the
union leaders, the burden is on the Respondent to establish a
valid nondiscriminatory reason for the job change, especially
given the timing thereof. But none was offered, other than
Dukelow’s admission that he had worked at many jobs within
the Company during his 22 years there. So, it is concluded that
Dukelow’s transfer violated Section 8(a)(3) as well.
Sixth, also on April 7, Donaldson restricted Dukelow’s use
of his cellular telephone to lunch or emergencies after supervi-
sor Al Widdifield saw Dukelow taking a break from work to
use the telephone. Dukelow admitted doing so. Dukelow testi-
fied that he could use the telephone if work was not interfered
with while Donaldson denied granting any such permission.
So, the key to this matter is to determine the reason for the
policy change. Again, the burden is on the Respondent to dem-
onstrate a nondiscriminatory reason. Given the fact that the
sequence of events on April 7 started with Widdifield, not
Donaldson, and that Dukelow apparently violated the existing
policy of allowing his telephone use to interfere with work,
albeit slightly, and Donaldson’s credible explanation that
Dukelow’s conduct was a valid safety concern, the presiding
judge concludes that this action against Dukelow did not violate
the Act.
Seventh, on April 17, the Respondent implemented a new
access policy for the employees, set forth in the notice regard-
ing the posting of a nightly security guard on the plant prem-
ises. Thereafter, employees were told that they were “not al-
lowed on the premises unless you are punched in on the clock.”
As discussed in paragraph 31 supra, the posting of this notice
did not violate Section 8(a)(1). Regarding the policy itself, it
applied only to the plant premises, was disseminated to all em-
ployees, and did not discriminate against those employees en-
gaged in union activity. Tri-County Medical Center, 222
NLRB 1089 (1976). Moreover, Donaldson testified that he still
allows employees to use the shop off-hours and to get gravel at
a discount; testimony refuted by only one witness as to only the
discount policy on one occasion. Therefore, the preponderance
of the evidence fails to establish any violation of Section
8(a)(3).
Eighth, sometime in April, employee Stueve received a writ-
ten warning after Donaldson observed that he was not wearing
his hard hat, which violated the Respondent’s new April 1 pol-
icy. The General Counsel, however, contends that Stueve was
only one of two employees to receive a written discipline for
any reason from 1998 to 2000. Nevertheless, the policy was
promulgated on April 1, before any union activity began, and it
is clear that Steuve violated the rule. Thus, notwithstanding
any animus by the Respondent against Steuve, who also signed
a union card, he was properly disciplined.
Ninth, the General Counsel contends that employee James
Garcia, who signed a union card but was not a union leader,
was constructively discharged on May 27 because his weekly
hours dropped after commencement of the union campaign.
Specifically, Garcia started work in late March and worked 48
and 55 hours a week. Then during the week of April 10 he
worked 44 hours and only 13 hours during the week of April
17. But during the week of April 24, he worked 49 hours.
Thereafter, Garcia worked between 24 and 35 hours a week,
until leaving in late May. The Respondent defends this allega-
tion on two grounds, claiming that Garcia’s employment was
too short to discern any pattern of what his hours should have
been. Also, it is noted that Donaldson called Garcia for work
less than other employees in part because of the great distance
Garcia lived from the Company (Tr. 435).
The presiding judge accepts the Respondent’s argument.
Significantly, the evidence reveals that there was no clear pat-
tern of prounion employees receiving less hours after April 5
and noncard signers receiving more hours. Rather, the evi-
dence is decidedly mixed on this question. Further, there is
also no discernable pattern regarding Garcia’s “normal” work-
week, given the brevity of his tenure. Further, Donaldson of-
fered a credible explanation of why he would schedule another
employee early in the morning who lived closer to the Com-
pany—who was almost certainly prounion also—rather than
Garcia in meeting the Company’s daily workload. Therefore, it
cannot be concluded that Garcia was constructively and ille-
gally discharged.
Tenth, and finally, it is alleged that the Respondent’s May
2000 pay raise of 50 cents an hour for the employees violated
Section 8(a)(3) because such raises occurred previously in ei-
ther July or November. The 2000 pay raise was no greater than
past years and it is true that the Respondent had no set month to
award raises. Nevertheless, Donaldson offered no credible
explanation of why he decided to award a raise 1 month after
the Union organizing drive began. In view of the suspicious
timing of the raise and the Respondent’s failure to offer an
alternative justification, it is concluded that the May 2000
raises violated Section 8(a)(3).
The Remedy
In summary, the Respondent committed a variety of illegal
acts upon learning of the union organizing campaign in early
April 2000. Specifically, Donaldson’s April 3 meeting with
union leader and employee Allen Dukelow violated Section
8(a)(1) because Donaldson interrogated Dukelow about the
nascent union activity and created the impression he was sur-
veilling the union effort by naming the leaders thereof. On
DONALDSON BROS. READY MIX, INC. 979
April 5, Donaldson illegally laid off employee James West, for
a few weeks, in retaliation for West’s union involvement. On
April 6, and 7, Donaldson effectively reduced the hours of sev-
eral employees who signed union cards by subcontracting out
work for the day and by outright reducing their hours. On April
7, Donaldson illegally transferred Dukelow to a slightly less
desirable position. On April 10, the Company posted an illegal
notice warning the employees against picketing and not report-
ing for work. From April 10 to 24, Supervisor Vern Weidow
committed several violations of Section 8(a)(1) by surveilling a
union meeting, interrogating employee Transue about his union
sympathies, making two incorrect statements about the Union’s
effect on the existing ESOP, telling employees that they were
stupid for supporting the Union, threatening that wages would
not increase if the Union won, and ordering an employee to
remove a prounion sticker from his hard hat. On April 29,
Donaldson violated Section 8(a)(1) by telling an employee he
would like to get rid of all the employees. Finally, on May 19,
the employees received their annual pay raises a few months
sooner than normal. On the other hand, the General Counsel
has failed to prove many of his allegations, including one dis-
charge and one constructive discharge.
That brings us to the selection of the appropriate remedy in
this case. The Respondent does not discuss this matter at all in
its brief, while the General Counsel argues that the Respon-
dent’s violations warrant a category II bargaining order, pursu-
ant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Spe-
cifically, such an order is warranted, in the absence of “outra-
geous” employer misconduct, where there are “less persuasive
practices which nonetheless still have the tendency to under-
mine majority strength and impede the election processes.” In
fashioning this remedy, it is important to:

take into consideration the extensiveness of an em-
ployer’s unfair practices in terms of their past effect on
election conditions and the likelihood of their recurrence
in the future. If . . . the possibility of erasing the effects of
past practices and of ensuring a fair election . . . by the use
of traditional remedies, though present, is slight and that
employee sentiment once expressed through cards would,
on balance, be better protected by a bargaining order, then
such an order should issue . . . .

395 U.S. at 614–615.
All of the cases cited by the General Counsel involve “hall-
mark” violations of the Act warranting a bargaining order, such
as discharges, threats to close the business if a union represents
the employees, and an employer’s granting of benefits which
unfairly undermine the Union’s support. But in the instant
case, only one of these factors exist. Compare M.J. Metal
Products, 328 NLRB 1184 (1999) (discharge of one-quarter of
the employees and threats to shut down operations if the Union
was selected). To be sure, there was also one layoff of an em-
ployee for a few weeks and several employees who lost a few
hours or days of work, out of approximately 25 employees.
Also, there were several violations of Section 8(a)(1) of the
Act. But, the Respondent’s misconduct was tightly confined to
the period immediately following the beginning of the union
campaign in early April to mid-May. Indeed, most of the Re-
spondent’s illegal acts occurred within a few days of April 3,
and the final misdeed occurred on May 19. Compare Bonham
Heating & Air Conditioning, 328 NLRB 432 (1999) (Respon-
dent persisted in its unfair labor practices). Further, there is no
actual evidence that a future election would be impeded by
unfairly diminished union support. In this regard, out of two
dozen, only one employee testified that he has changed his
mind about the Union (Tr. 261). Compare Sheraton Hotel
Waterbury, 312 NLRB 304, 305 (1993) (clear dissipation of
union support). In sum, the presiding judge concludes that
traditional remedies, not a bargaining order, are warranted to
remedy the Respondent’s various violations of the Act.
IV. CONCLUSIONS OF LAW
1. The Respondent, Donaldson Bros. Ready Mix, Inc., is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, International Union of Operating Engineers,
Local 400, AFL–CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act as fol-
lows:
(a) On April 3, 2000 by creating an impression of surveil-
lance to an employee (as alleged in paragraph 5(a)(i) of the
complaint);
(b) On April 3, 2000 by interrogating an employee about his
union activity;5
(c) On April 29, 2000, by telling an employee that he would
“shit can” the employees if they chose the Union (as alleged in
paragraph 5(c) of the complaint);
(d) On April 6, 2000, by telling employees that they would
lose their ESOP if they selected the Union (as alleged in para-
graph 6(a)(iii) of the complaint);
(e) On April 6, 2000, by telling employees that they would
not receive higher wages if they selected the Union (as alleged
in paragraph 6(a)(iv) of the complaint);
(f) On April 11, 2000, by engaging in surveillance of a union
meeting (as alleged in paragraph 6(b)(i) of the complaint);
(g) On April 11, 2000, by telling employees that the Union
would destroy the ESOP (as alleged on paragraph 6(b)(ii) of the
complaint);
(h) On April 21, 2000, by interrogating an employee about
his union sympathy (as alleged in paragraph 6(c)(i) of the com-
plaint);
(i) On April 21, 2000, by telling employees that they were
stupid for supporting the Union (as alleged in paragraph 6(c)(ii)
of the complaint);
(j) On April 24, 2000, by telling an employee to remove a
prounion sticker from his hard hat (as alleged in paragraph 6(d)
of the complaint); and
(k) On April 10, 2000, by promulgating a no-picketing rule
(as alleged in paragraph 7 of the complaint).
4. The Respondent violated Section 8(a)(1) and (3) of the
Act as follows:

5 This matter was not specifically alleged in the complaint, but was
fully litigated and is closely connected to the allegation in paragraph
5(a)(i) of the Complaint. Hence, it is appropriate to find a separate
violation. William Pipeline Co., 315 NLRB 630 (1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 980
(a) On April 5, 2000, by temporarily laying off employee
James West (as alleged in paragraph 11 of the complaint);
(b) On April 6, 2000, by subcontracting out work, thus di-
minishing employees’ hours (as alleged in paragraph 12(a) of
the complaint);
(c) On April 6 and 7, 2000, by reducing the hours of em-
ployees Rick Zundel, Randy Melton, Douglas Lindquist, Joe
Crouchet, and David Raines (as alleged in paragraphs 12(c),
(e), and (g) of the complaint);
(d) On April 6, 2000, by transferring employee Allen
Dukelow to a less desirable position (as alleged in paragraph
12(d) of the complaint); and
(e) On May 19, 2000 by implementing a 50 cent per hour
wage increase for the employees (as alleged in paragraph 12(j)
of the complaint).
5. The General Counsel has failed to prove his allegations at
paragraphs 5(a)(ii) and (iii), 6(a)(ii), 8, 9, 10, 12(b), 12(f),
12(h), 12(i), 12(k), 15, 16(c), and 17 of the complaint.
6. The unfair labor practices of the Respondent, described in
paragraphs 3 and 4, above, affect commerce within the meaning
of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]