MetFab, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 2005

344 N.L.R.B. 215 (N.L.R.B. 2005)

METFAB, INC.
344 NLRB No. 6
215
MetFab, Inc. and Sheet Metal Workers Local Union
No. 54, AFL–CIO, Affiliated with Sheet Metal
Workers International Association
MetFab, Inc. and Sheet Metal Workers Local Union
No. 54, AFL–CIO Affiliated with Sheet Metal
Workers International Association. Cases 16–
RM–763, 16–CA–23533, 16–CA–23603, and 16–
CA–23672
January 31, 2005
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 30, 2004, Administrative Law Judge
Michael A. Marcionese issued the attached decision.
The Charging Party Union filed exceptions and a sup-
porting brief which consisted of the brief that it filed with
the judge. The Respondent-Employer filed cross-
exceptions and a supporting brief which also contained
responses to some of the Union’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,1 the
cross-exceptions and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions3 and to adopt
the recommended Order.4

1 No exceptions were filed to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1): by Supervisor Randy Davis’ threat to em-
ployee Albert Davis that the Respondent might have to close its busi-
ness if the Union won the election; by President Casey McGuire’s
announcement to employees during a power point presentation that he
intended to implement improved employment benefits if employees
voted against union representation; and by McGuire’s statement to
employee McCain which statement constituted both an interrogation as
to how McCain would vote and created the impression that employees’
union sympathies were being monitored.
No exceptions were filed to the judge’s dismissal of complaint alle-
gations that the Respondent violated Sec. 8(a)(1) by photographing
union agent handbilling activity and by calling the police in an attempt
to have handbillers arrested.
2 The Charging Party 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.
On the basis of a credibility resolution, the judge found that Gary
Jones was discharged on January 30, 2004, rather than laid off, and,
therefore, the challenge to his ballot should be sustained. In adopting
the judge’s finding, Member Schaumber does not rely on the judge’s
blanket statement in the “Statement of the Case” section of his decision
that his findings of fact were based in part on his “observation of the
demeanor of the witnesses.” See Member Schaumber’s dissent in
Atlantic Veal & Lamb, Inc., 342 NLRB 418, 421–422 (2004) (judge’s
blanket statement relying on observation of witness demeanor was
insufficient to support credibility resolution absent an explanation of
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, MetFab, Inc., Houston,
Texas, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for Sheet Metal Workers Local Union No.
54, AFL–CIO, affiliated with Sheet Metal Workers In-
ternational Association and that it is not the exclusive
representative of the bargaining unit employees.
Roberto Perez, Esq., for the General Counsel.
William H. Bruckner, Esq., for the Respondent/Petitioner.
Patrick M. Flynn, Esq., for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. The
petition in Case 16–RM–763 was filed by MetFab, Inc., the
Employer/Respondent, on February 23, 2004.1 Pursuant to a
Stipulated Election Agreement, approved on March 2, an elec-
tion by secret ballot was conducted among certain employees of
MetFab, Inc. on March 26 to determine whether they desired to
be represented for the purposes of collective bargaining by
Sheet Metal Workers Local Union No. 54, AFL–CIO, affiliated
with Sheet Metal Workers International Association (the Un-

the demeanor-based indicia that influenced the judge). Rather, Member
Schaumber notes that in making his credibility resolution concerning
Jones, the judge did not rely solely on his blanket “observation of the
demeanor” statement, but rather analyzed and balanced the witnesses’
testimony and gave other reasons for the credibility resolution.
3 In finding that Raymond Casillas was eligible to vote, the judge
placed the burden of proof on the Respondent to show that Casillas,
who worked the requisite number of days to be eligible to vote under
Steiny & Co., 308 NLRB 1323 (1992), and Daniel Construction, 133
NLRB 264 (1961), modified at 167 NLRB 1078 (1967), the
Steiny/Daniel formula, was nevertheless not entitled to vote. The Re-
spondent argues that this burden placement is contrary to Board law,
relying on B. D. Kaplan & Co., 50 NLRB 1035, 1042 (1943), for the
proposition that where employees are shown to have been laid off, to
have been recalled, and to have failed to return without an explanation
on their part for their failure to return, “it cannot be presumed that they
nevertheless continued to be employees of the Company.” Member
Schaumber notes that B. D. Kaplan, supra, which has never been cited
in any Board or court case, did not arise in the construction industry, an
“industry characterized by intermittent employment.” Yellowstone
Plumbing, 286 NLRB 993, 1012 (1987).
4 Member Liebman would not pass on the judge’s dismissal of the
8(a)(1) allegation involving Supervisor Randy Davis’ conversation with
employee Albert Davis. The Union excepts to the dismissal, but the
finding of a violation would be cumulative of an unexcepted-to viola-
tion of Sec. 8(a)(1) found by the judge, involving a promise of benefit.
1 All dates are in 2004 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD216
ion).2 The tally of ballots served upon the parties following the
election disclosed the following results:
Approximate number of eligible voters 14
Void ballots 0
Votes cast for the Union 5
Votes cast against participating labor organization 6
Valid votes counted 11
Challenged ballots 3
Valid votes plus challenged ballots 14
The challenged ballots were sufficient in number to affect
the results of the election. On April 2, the Union and the Em-
ployer/Petitioner timely filed objections to the election. On the
same date, the Union filed the unfair labor practice charge in
Case 16–CA–23533 alleging, inter alia, conduct identical to
that alleged in its objections. Additional charges were filed by
the Union on May 3 and 28 in Cases 16–CA–23603 and 16–
CA–23672, respectively.
Following an investigation conducted by the Board’s Re-
gional Director, an order directing hearing issued on June 30,
finding that the challenged ballots, and the objections filed by
both parties, raised substantial and material factual issues which
may best be resolved on the basis of record testimony at a hear-
ing. In the same order, which was amended on July 30, the
Regional Director consolidated the challenge/objections hear-
ing with a consolidated complaint and notice of hearing that
issued the same date based upon the unfair labor practice
charges filed by the Union. The consolidated complaint, which
was amended on July 30, alleged that the Respondent, MetFab,
Inc., violated Section 8(a)(1) of the Act. On July 9, the Respon-
dent filed its answer to the consolidated complaint denying that
it committed the unfair labor practices alleged. The Respondent
amended its answer to respond to the amended complaint at the
hearing.
The consolidated complaint, as amended, alleges that the Re-
spondent violated Section 8(a)(1) of the Act in several respects,
before and after the election. Specifically, the General Counsel
alleges that the Respondent, through shop foreman and admit-
ted supervisor, Randy Davis, threatened employees on March
18 that the Respondent might have to close its doors if employ-
ees voted in favor of union representation and, on March 25,
offered to grandfather employees into the Respondent’s bene-
fits package in order to induce them to vote against union rep-
resentation. The complaint further alleges that the Respondent’s
president and admitted supervisor, S. Casey McGuire, offered
employees improved benefits if they voted against union repre-
sentation during a power point presentation to the employees on
March 19, and created the impression of surveillance and inter-
rogated employees during a one-on-one conversation with an
employee at a client’s facility on March 24. Finally, it is alleged
that the Respondent engaged in surveillance of union activities
on May 27 by photographing union representatives engaged in

2 The stipulated unit included all employees of MetFab, Inc., en-
gaged in sheet metal fabrication and installation of sheet metal products
working out of the employer’s office in Houston, Texas, but excluding
all other employees, including office and clerical employees, profes-
sional employees, guards and supervisors as defined by the Act.
peaceful handbilling near the Respondent’s facility, and on
May 28, summoned law enforcement authorities in an attempt
to cause the arrest of these union representatives.
Pursuant to notice, I heard these consolidated cases in Hous-
ton, Texas, on August 16 and 17. At the hearing, the Union
withdrew its objections to the election and the parties stipulated
that one of the challenged voters, Roger Reid, was not eligible
to vote in the election. There remained for resolution the unfair
labor practice allegations of the consolidated complaint, the
Employer’s objections, and the two challenged ballots. The
General Counsel, the Respondent, and the Charging Party filed
posthearing briefs on September 10.3 In its brief, the Respon-
dent withdrew its objections to the election, narrowing the is-
sues even further. Having considered the evidence offered at
the hearing, including my observation of the demeanor of the
witnesses, and the arguments advanced by the parties at the
hearing and in their briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the fabrication
and production of specialty sheet metal products at its facility
in Houston, Texas, where it annually purchases and receives
goods valued in excess of $50,000 directly from points outside
the State of Texas. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
McGuire, an engineer by training, founded the Respondent
in the summer of 1999 as a custom sheet metal fabricator with
clients primarily in the food processing industry. In addition to
the shop employees who fabricate the sheet metal products, the
Respondent employees field employees who install the prod-
ucts at customers’ sites. Before establishing his own company,
McGuire had worked for a union-signatory contractor in the
same business. In 2000, after the Respondent was awarded a
big contract at the Maxwell House coffee plant, McGuire con-
tacted the Union because he needed workers for the job. After

3 On September 14, the General Counsel filed a motion to strike por-
tions of the Respondent’s brief. Specifically, the General Counsel
sought to strike a footnote in which the Respondent asserted that the
charge in Case 16–CA–23603 was invalid because it did not have a
valid signature. The Respondent replied to this motion by letter dated
September 16. Although the Respondent stated that it did not wish to
waste my time or the client’s money responding to the motion, it did
not disavow the claims made in the footnote to its brief. Having consid-
ered the matter, I shall grant the General Counsel’s motion on the basis
that any claim that the charge is invalid has been waived by the Re-
spondent’s failure to object at the time the charge was introduced in
evidence as part of the formal papers at the hearing or to otherwise
raise this issue in a timely manner. Moreover, the point raised by the
Respondent’s footnote would fail on the merits for lack of legal author-
ity for the proposition that an attorney’s signature “by permission” is
invalid under the Board’s Rules and Regulations. Cf. Ladies Garment
Workers (Saturn & Sedran, Inc.), 136 NLRB 524, 527–530 (1962).
METFAB, INC. 217
several meetings and telephone conversations with Carl Cox,
the Union’s business manager at the time who has since retired,
McGuire became a signatory contractor himself. The agreement
McGuire signed, on April 25, 2000, initially bound the Re-
spondent to a multiemployer collective-bargaining agreement
negotiated by the Union with the Houston Sheet Metal Contrac-
tors Association that was effective through March 31, 2001.
That agreement was superseded by a new collective-bargaining
agreement negotiated between the Union and the Association
for the period April 1, 2001, to March 31, 2004. Although there
was some testimony that the Respondent attempted to get out of
the new agreement in 2001, there is no dispute that the Respon-
dent complied with the terms of the 2001–2004 collective-
bargaining agreement. There is also no dispute that the Re-
spondent’s contractual relationship with the Union was gov-
erned by Section 8(f), rather than Section 9(a) of the Act.
On October 16, 2003, McGuire sent a certified letter to the
chairman of the Association, with a copy to the Union’s new
business manager, Doug McGee, who had succeeded Cox in
January 2001, withdrawing the Respondent’s authorization for
the Association to act on the Respondent’s behalf. On Decem-
ber 24, 2003, McGuire sent a letter to McGee, with a copy to
the Association, notifying the Union of Respondent’s intent not
to renew the collective-bargaining agreement upon its expira-
tion on March 31. Around the same time, McGuire held a meet-
ing with the employees who were covered by the collective-
bargaining agreement to advise them that the Respondent had
decided to go in a different direction and not renew its contract
with the Union. According to McGuire, he told the employees
he wanted everyone to stay but he realized that, because of the
amount of time many of them had in the Union, they might
want to leave. McGuire asked the employees to give the Re-
spondent notice before leaving. According to McGuire, he also
told the employees that the Respondent would put in place a
program of benefits to replace those under the union contract
after it expired. Although he admittedly did not provide details
of any new benefits, McGuire testified that he explained that
the Respondent already had certain benefits for the office em-
ployees and would work off of those.
In early January, after the Union learned of the Respondent’s
intentions, McGee and Business Agent Stanley Bordovsky met
with McGuire and his stepbrother, Rex Davis, who is the Re-
spondent’s vice president. There is no dispute that the Union
told McGuire that the Respondent could not simply walk away
from the contract, that there was an interest arbitration clause in
the agreement that bound the Respondent. It was after this
meeting, according to McGuire, that he obtained legal counsel
and filed the RM petition to resolve the question concerning the
union representation of the Respondent’s employees.
B. Alleged Preelection Unfair Labor Practices
Albert G. Davis, no relation to Randy or Rex Davis, testified
for the General Counsel regarding several allegations of the
complaint. Albert Davis was employed by the Respondent in its
shop from November 2003 until he was terminated in mid-
May. He was unemployed at the time of the hearing. Albert
Davis has been a union member since 1973 and is currently a
journeyman. Albert Davis testified that, on March 18, he went
into Randy Davis’ office to get a work ticket. According to
Albert Davis, this was a common practice for him as Randy
Davis was the shop foreman who was responsible for assigning
work. While in the office, the two men had a conversation. No
one else was present. Albert Davis testified that, during this
conversation, Randy Davis said he was not sure what the Com-
pany was going to do if they didn’t get a nonunion vote, that
they may have to shut their doors. Albert Davis did not respond
to this comment and left the office. Albert Davis testified that
he did not know what precipitated Randy Davis’ comment
about the election. As far as he could recall, nothing else was
said about the election or the Union at that time. Albert Davis
was unable to recall anything else that was said during this
conversation. After he left Randy Davis’ office, Albert Davis
went to his bench and wrote down the conversation in a note-
book.
Randy Davis testified for the Respondent. Although he did
not have any official title, he was in charge of the shop. Randy
Davis is Casey McGuire’s stepbrother. He was no longer em-
ployed by the Respondent at the time of the hearing, having left
the Respondent’s employ in July to work for a company he and
his wife owned. In response to leading questions from counsel,
Randy Davis denied telling Albert Davis or any other employee
that the Respondent would shut its doors if the Union won the
election. Randy Davis did admit having a conversation with
Albert Davis after McGuire’s March 19 presentation, to be
discussed later. He also admitted that he frequently talked to
employees, including Albert Davis, about many things and
conceded he could not say that he never discussed the Union
with Albert Davis or any other employee. He simply could not
recall talking about the Union with Albert Davis.
On cross-examination, the Respondent established that Al-
bert Davis had been terminated by the Respondent for work
performance and for urinating in the Company’s parking lot.
The parties stipulated that the Union filed a unfair labor prac-
tice charge over Albert Davis’ termination and that the charge
was withdrawn. There is no allegation that the termination vio-
lated the Act. During cross-examination regarding the circum-
stances of his termination, Albert Davis testified at one point
that the only door from the shop to the office was locked on the
day he allegedly urinated in the parking lot. On further ques-
tioning, Albert Davis acknowledged that there were other
means of access to the bathroom in the office area. In addition,
Gayle Davis, McGuire’s mother and one of the Respondent’s
owners who works as the office manager, contradicted Albert
Davis’ testimony regarding the number of doors from the shop
to the office and whether they were locked at any point.
The complaint alleges that the Respondent, during this con-
versation between Randy and Albert Davis, unlawfully threat-
ened employees that the Respondent would close if they voted
for the Union. Resolution of this allegation turns exclusively on
credibility. The Respondent argues that I should not believe
Albert Davis because he is a bitter man as a result of his termi-
nation by the Respondent. The Respondent also cites Albert
Davis’ testimony regarding access to the bathrooms in the of-
fice, which was contradicted by other evidence, as establishing
his general lack of credibility. While Albert Davis’ testimony
that the only door from the shop to the office was locked may
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD218
not be accurate, this does not prove he was lying about the con-
versation with Randy Davis. I note that Albert Davis first re-
ported Randy Davis’ alleged threat before there was any indica-
tion he would be fired and his testimony at the hearing is con-
sistent with his earlier affidavit. Moreover, aside from his tes-
timony about his termination, Albert Davis appeared to be a
truthful witness. The Board has long recognized that a witness
may be credible as to some but not all of his testimony. See,
e.g., Planned Bldg. Services, 330 NLRB 791, 792 (2000). I also
note that Randy Davis’ denial that he made such a threat, elic-
ited by leading questions, is undermined by his concession that
he could not say with any confidence that he never discussed
the Union or the election with Albert Davis. Although Randy
Davis impressed me as a generally credible witness, it appears
he may simply have forgotten he made such a comment to Al-
bert Davis. This is particularly likely because of the off-hand
manner in which the statement was made. The threat was not
part of any orchestrated campaign to convince the employees to
vote against the Union. Rather it seemed to be no more than
Randy Davis’ speculation as to the possible outcome of a union
victory. Accordingly, I shall credit the testimony of Albert
Davis and find that Randy Davis did state that the Respondent
might close if the employees voted in favor of the Union.
The Board and the courts have frequently addressed the le-
gality of statements such as the one at issue here. Although an
employer may lawfully inform employees as to the precise
effects he believes unionization will have on his company, such
predictions “must be carefully phrased on the basis of objective
fact to convey an employer’s belief as to demonstrably prob-
able consequences beyond his control. . . . If there is any im-
plication that an employer may or may not take action solely on
his own initiative for reasons unrelated to economic necessities
and known only to him, the statement is no longer a reasonable
prediction based upon available facts but a threat of retaliation
based on misrepresentation and coercion without the protection
of the First Amendment.” NLRB v. Gissel Packing Co., 395
NLRB 575, 617 (1969). See also NLRB v. St. Francis Health-
care Center, 212 F.3d 945, 954–955 (6th Cir. 2000); Times-
Herald Record, 334 NLRB 350 (2001); Migali Industries, 285
NLRB 820 (1987). Randy Davis’ statement, without any expla-
nation for his belief that the Respondent might have to shut its
doors if the union prevailed in the election, clearly meets the
definition of a threat. Such a statement would have the reason-
able tendency to convey the impression that the Respondent
would rather go out of business than deal with the Union. Ac-
cordingly, I find that the Respondent violated Section 8(a)(1) of
the Act, as alleged, through Randy Davis’ threat of closure of
the business.
There is no dispute that, on March 19, McGuire conducted a
power point presentation for the unit employees to describe the
benefits that would be available after the expiration of the col-
lective-bargaining agreement on March 31. Among the new
benefits announced were paid vacations, 5 days after 1 year of
service and 10 days after 5 years of service, and three paid
holidays a year. The collective-bargaining agreement did not
provide either paid vacations or holidays. McGuire also de-
scribed the health insurance benefits that would be available,
telling the employees that, unlike the Union’s plan, which had
different benefits for journeymen and apprentices, all employ-
ees would receive the same benefits. McGuire also told the
employees they would receive dental benefits, something not
available under the Union’s contract. McGuire’s presentation
also included a larger life insurance policy, i.e., $50,000 as
opposed to the $10,000 policy under the collective-bargaining
agreement. Finally, McGuire talked about the retirement bene-
fits the Company would have after the contract expired. Under
the Respondent’s plan, employees needed 1 year of service to
be eligible but there was no vesting period. The plan, a simpli-
fied employee pension plan (SEP-IRA) was fully funded
through employer contributions with withdrawals permitted at
any time. According to employees who were at the meeting,
McGuire compared this plan to the Union’s pension, telling the
employees that the Union’s plan was in bad shape. McGuire
told employees if they wanted to see for themselves the poor
financial shape that the Union’s plan was in, they could go into
Randy Davis office and he would bring it up on the computer
for them. McGuire told the employees that the Respondent’s
plan would do better for the employees and would be more cost
effective.
McGuire admitted making most of the statements attributed
to him by the General Counsel’s witnesses. According to
McGuire, he gave this presentation in response to questions that
had been raised by the employees about what would happen
after the contract expired. McGuire testified that he did not
mention the upcoming election and did not tell the employees
that, if the Union won the election, he would have to negotiate
with the Union about these benefits. In a pretrial affidavit,
McGuire had stated that he told the employees these were the
benefits they would receive regardless of the outcome of the
election. There is no dispute that some of the new benefits were
not as good as those provided under the union contract. For
example, McGuire’s presentation reveals that employees would
not be eligible for overtime until after they had worked 40
hours in a week, as opposed to the contractual requirement of
overtime after 8 hours per day. Similarly, the Respondent’s new
health insurance plan included employee contributions, which
were not required under the collective-bargaining agreement.
The complaint alleges that the Respondent, through Mc-
Guire’s presentation, unlawfully promised employees improved
benefits if they voted against union representation. The facts
supporting this allegation are undisputed. McGuire admittedly
told the employees at this meeting that, after the contract ex-
pired, they would receive benefits such as paid vacations and
holidays and a dental plan that they did not then receive, and
that they would receive improved health insurance, life insur-
ance, and a better retirement plan than they received through
the Union. Although the Respondent’s proposed overtime poli-
cies would not be as good as the contract’s provisions, overall
the plan presented was better for the employees. The Respon-
dent argues that McGuire’s presentation was not an unlawful
promise of benefits. In the Respondent’s view of the facts,
McGuire was simply advising the employees of the benefits
that it would implement when the 8(f) contract with the Union
expired, which it had a right to do under John Deklewa & Sons,
282 NLRB 1375 (1987).
METFAB, INC. 219
In NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964),
the Supreme Court recognized the inherent danger in well-
timed increases in wages and benefits and found that a grant of
benefits intended to influence employees’ choice in an election
violates Section 8(a)(1) of the Act. Although the grant of bene-
fits during an election campaign is not per se unlawful, the
Board will draw an inference of improper motivation and inter-
ference with employee free choice where the evidence shows
that employees would reasonably view the grant of benefit as
an attempt to interfere with or coerce them in their choice of
representative. An employer may rebut this inference with
proof of a legitimate business reason for the timing and grant of
the benefit. Southgate Village, Inc., 319 NLRB 916 (1995);
Holly Farms Corp., 311 NLRB 273, 274 (1993), enfd. 48 F.3d
1362 (4th Cir. 1995), affd. 517 U.S. 392 (1996). More recently,
the Board held that the timing of an employer’s announcement
of wage increases during a union campaign may be unlawful
even if the wage increase itself does not violate the Act. Mercy
Southwest Hospital, 338 NLRB 545 (2002), and cases cited
therein.
Applying the law to the facts here, I find that the Respon-
dent’s March 19 announcement of its new benefit program was
unlawful, as alleged in the complaint. Even assuming that the
Respondent had the right under Deklewa, supra, to terminate
the collective-bargaining agreement and implement new wages
and benefits upon its expiration, the timing of the announce-
ment, shortly before employees were to vote on whether to
continue union representation, supports an inference that the
Respondent intended to influence employee choice in that elec-
tion. Because the new benefits would only go into effect after
the contract expired if there were no union on the scene, the
message conveyed by the Respondent was that employees
could not receive these new benefits if they voted for continued
union representation. Moreover, the Respondent offered no
evidence that it had decided upon the new benefit program
before it filed the petition which precipitated the election. The
conclusion is inescapable that, having initiated the process to
remove the union as its employees’ bargaining representative,
the Respondent wanted to ensure a favorable outcome by con-
veying to the employees the benefits they would receive once
the Union was gone and the collective-bargaining agreement
had terminated.
There is no dispute that, on March 25, the day before the
election, Randy Davis called Albert Davis into his office and
talked to him about the new benefits. According to Albert
Davis, Randy Davis said he realized that Albert had not been
with the Company for a year. Randy Davis then asked, if Albert
Davis could be grandfathered into the program, would that
affect his vote. Albert Davis said it would not and the conversa-
tion ended. Albert Davis could not recall anything else that was
said in this conversation. On cross-examination, Albert Davis
conceded that Randy Davis may have talked about Albert Davis
staying on with the Company after the election. Albert Davis
also acknowledged that Randy Davis asked him if he would
stay on if the Respondent grandfathered him for the new bene-
fits.
Randy Davis testified that he spoke to Albert Davis because
he observed at the March 19 meeting that Albert Davis and
another employee who had been with the Company less than a
year seemed disappointed that they wouldn’t be eligible for the
pension plan because they had not been there a year. According
to Randy Davis, he asked Albert Davis, “[I]f I was able to con-
vince Casey to grandfather those guys who hadn’t been work-
ing there a year would he consider staying, or would that affect
his decision to stay?” Randy Davis recalled that Albert said it
would not affect his decision. Randy Davis denied asking Al-
bert if it would affect or sway his vote in the election. Accord-
ing to Randy Davis, he figured the Respondent had enough
votes to win the election and he was concerned that all the
long-term union members would quit immediately after the
election. Randy Davis testified that he considered Albert Davis
a good worker and he was trying to convince him to continue
with the Company after the election. Randy Davis also testified
that he had not been authorized to have this conversation with
Albert Davis and that Casey McGuire reprimanded him for
having done this. Randy Davis conceded that Albert Davis had
given him no indication before this conversation that he
planned to leave after the election. There is no dispute that the
Respondent had asked Albert Davis to be its observer at the
election before this conversation but that he was told afterward
that he would not be the observer.
The complaint alleges that the Respondent, through Randy
Davis, made an unlawful promise of benefits when Randy
Davis offered to grandfather Albert Davis so he could receive
the new benefits offered at the March 19 meeting. There is no
dispute that Randy Davis called Albert Davis into his office for
the purpose of making such a proposal. The only issue is
whether Randy Davis offered to grandfather Albert Davis in
order to win his vote in the election, or to induce him to remain
with the Respondent after the election. Although Albert Davis
initially testified that Randy Davis asked if the grandfathering
would affect his vote in the election, he conceded on cross-
examination that Randy Davis asked if it would affect his deci-
sion to stay with the Company. Albert Davis’ testimony on
cross-examination thus corroborates Randy Davis version of
the conversation. This version of the facts is also consistent
with other evidence in the record showing that the Respondent
was confident that a majority of the employees would vote
against union representation and that its main concern, in the
days preceding the election, was that a number of long-term
union members would quit en masse, leaving the Respondent
unable to complete its contracts with customers. Accordingly, I
shall credit Randy Davis as to this allegation and find that
Randy Davis made the offer to grandfather Albert Davis in
order to encourage him to stay with the Company after the elec-
tion. Such an offer, not tied to how Albert Davis voted in the
election, did not amount to an unlawful promise of benefit un-
der the Act. Accordingly, I shall recommend dismissal of this
allegation of the complaint.
Brandon McCain, who worked for the Respondent for about
3 years until he left to work for another union-signatory con-
tractor on April 8, also testified for the General Counsel regard-
ing the 8(a)(1) allegations. McCain was an apprentice who
worked in the field under the Respondent’s contract with Max-
well House. He testified that, on March 24, 2 days before the
election, McGuire visited the Maxwell House plant and asked
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD220
to speak to him. According to McCain, McGuire talked about
the upcoming NLRB election, telling McCain that he already
had 6 out of the 11 people voting and that he would also like
McCain to stay with him. McCain responded by telling
McGuire that he didn’t think this was anything more than a
last-ditch attempt to win his vote. McGuire denied this was the
case. McCain ended the conversation by returning to work.
McCain testified that no one else was present during this con-
versation with McGuire. On cross-examination, McCain denied
that McGuire had repeatedly asked him to stay after the union
vote. According to McCain, this was the only time McGuire
asked him to stay with the Company.
McGuire admitted having a conversation with McCain at
Maxwell House before the election and admitted telling
McCain that he thought the vote would be 6–5. McGuire also
admitted telling McCain that he would like his vote. According
to McGuire, he knew how the vote would go because the Re-
spondent had hired most of the employees, including McCain,
and had sent them to the Union to join. On cross-examination,
McGuire testified that he personally liked McCain and wanted
him to stay with the company and that was why he spoke to
him that day. McGuire denied that he went to Maxwell House
to speak to McCain about the election. According to McGuire,
he was at the site looking over the job, something he does sev-
eral times a week.
McGuire essentially admitted making the statements attrib-
uted to him by McCain, who impressed me as a credible wit-
ness in any event. The complaint alleges that McGuire violated
the Act in two respects during his conversation with McCain at
the Maxwell House job. McGuire’s prediction as to the out-
come of the election allegedly created the impression that the
employees’ union activities were under surveillance by the
Respondent. This prediction, together with McGuire’s request
for McCain’s vote, is further alleged as a form of interrogation
because the conversation invited the employee to reveal his
sympathies for the upcoming election.
The Board will find that an employer has created the impres-
sion of surveillance when its statements or actions would lead
employees to reasonably assume that their Section 7 activities
have been placed under surveillance. Fred’k Wallace & Son,
331 NLRB 914 (2000); Tres Estrellas de Oro, 329 NLRB 50
(1999); United Charter Service, 306 NLRB 150 (1992). Here,
McGuire’s statement that he knew how the election would turn
out, down to the precise number of employees who would vote
against the Union, would lead an employee to assume that the
Respondent was monitoring the union sympathies of its indi-
vidual employees. It is irrelevant that McGuire reached his
conclusion by lawful means rather than through actual surveil-
lance because it is the impression conveyed to the employee
that violates the Act. See Martech MDI, 331 NLRB 487 fn. 4
(2000). Accordingly, I find that the Respondent, through
McGuire, violated the Act as alleged by creating the impression
of surveillance on March 24.
The Board has held that statements not “couched as ques-
tions” may nonetheless constitute unlawful interrogation when
they are “calculated to elicit responses from [employees] about
their union sentiments.” Westwood Health Care Center, 330
NLRB 935, 941 fn. 21 (2000), quoting from NLRB v. McCul-
lough Environmental Services, 5 F.3d 923, 929 (5th Cir. 1993).
See also Clinton Electronics Corp., 332 NLRB 479 (2000).
McGuire’s statement here, that he knew that 6 out of 11 em-
ployees would vote against the Union and that he would like
McCain’s vote as well, would compel a response from an ordi-
nary employee that would reveal his union sympathies. I find
that McGuire’s conversation here meets the totality of circum-
stances test used by the Board to evaluate allegations of unlaw-
ful interrogation. Westwood Health Care Center, supra; Ross-
more House, 269 NLRB 1176 (1984). McGuire was the Re-
spondent’s highest-ranking officer. He sought out McCain at
his jobsite to speak to him one-on-one. The alleged interroga-
tion occurred in the same conversation in which McGuire cre-
ated the impression of surveillance and less than a week after
he had promised employees improved benefits if they voted
against union representation. Finally, the interrogation was
couched as a request that McCain “stay with the company” by
casting his vote against the Union. All of these circumstances
convince me that the effect of McGuire’s conversation was
coercive within the meaning of the Act.4 Accordingly, I find, as
alleged in the complaint, that the Respondent violated Section
8(a)(1) of the Act on March 24 when McGuire interrogated
McCain at the Maxwell House jobsite.
C. Postelection Allegations
There is no dispute that the Union engaged in handbilling at
the Respondent’s shop on Allen Genoa Road in Houston on
May 27 and 28. Union organizer Billy Kenyon testified that he
was accompanied by three apprentices who were members of
the Union participating in an educational program. None had
ever been employed by the Respondent. Kenyon was also ac-
companied by a 16-foot high inflatable rat with a sign bearing
the Respondent’s name on its chest. The Union had used this
device to protest other employers with whom it had a dispute
and had also displayed the rat bearing the Respondent’s name
at the Maxwell House facility and at the locations of other cus-
tomers of the Respondent before May 27. There is no dispute
that the rat was located on the property of a church across the
street from one of the Respondent’s gates. Kenyon testified that
he and the apprentices handbilled at the Respondent’s facility
from approximately 7 a.m. until 3 p.m. on both days. He testi-
fied that they did not block entrance to or egress from the facil-
ity, did not impede traffic on the street or sidewalk, and en-
gaged in no other activity that would violate any laws. The
Respondent did not dispute this testimony other than to claim
that, for part of the day on May 28, the Union set up lawn
chairs and an umbrella on the sidewalk impeding pedestrian
traffic. The parties stipulated that, on May 27, the Respondent’s
attorney photographed Kenyon and the others as they hand-
billed.
The complaint alleges that the Respondent’s photographing
of Kenyon and the other union handbillers on May 27
amounted to unlawful surveillance. The Respondent counters
that the mere act of photographing union representatives is not

4 Whether McCain was actually coerced into revealing his union
sympathies is irrelevant as the Board’s test is an objective one. See
NLRB v. McCullough Environmental Services, 5 F.3d at 927.
METFAB, INC. 221
unlawful where no employees were present or even aware of
pictures being taken. The Board, in F. W. Woolworth Co., 310
NLRB 1197 (1993), set forth the fundamental principals gov-
erning employer surveillance of protected concerted activities.
Where employees are conducting their activities openly on or
near the employer’s premises, open observation of such activi-
ties is not unlawful. Roadway Package System, 302 NLRB 961
(1991), and cases cited therein. Where an employer’s surveil-
lance activities go beyond “mere observation,” the Board will
find a violation. In F. W. Woolworth, supra, the Board found
that photographing or videotaping employees engaged in such
activity goes beyond “mere observation” and is unlawful be-
cause such pictorial recordkeeping tends to create fear among
employees of further reprisals. Accord: National Steel & Ship-
building Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (D.C.
Cir. 1998). Here, there is no evidence that any employees par-
ticipated in, or were present, when the Respondent’s attorney
took photographs of the union activity outside its gates. In the
absence of such evidence, it is difficult to conclude that any
employees were restrained or coerced in the exercise of Section
7 rights.5 Accordingly, I find that the conduct of the Respon-
dent’s attorney on May 27, did not violate Section 8(a)(1) of
the Act and I shall recommend that this allegation of the com-
plaint be dismissed.
It is undisputed that, on May 28, the Respondent summoned
the Houston police to the site to investigate whether the Un-
ion’s handbillers were violating any laws. Officer Joseph C.
Cram, from the criminal intelligence division of the Houston
police department, testified that he first spoke to Kenyon and
inquired as to the Union’s plans. He then determined that the
rat was not on public property and that the Union had permis-
sion of the Church to place it where it was. Cram then went into
the Respondent’s office and spoke to Rex Davis. According to
Cram, Rex Davis was upset and complained that the demon-
strators were blocking the sidewalk and forcing neighborhood
children to walk in the street to get around them. Rex Davis
also complained that the rat’s arm was hanging in the street
causing a traffic hazard. Cram told Rex Davis that he had al-
ready talked to the union demonstrators and had them move the
rat so it did not hang in the street and that he had reminded
them of the rules against blocking the sidewalk. After meeting
with Rex Davis, Cram returned to the sidewalk and talked to
Kenyon again. Cram did tell Kenyon to move the chairs and
umbrella so as not to impede the sidewalk and he reminded
them of the rules. Cram testified that he did not observe the
union representatives violating any laws or public ordinances
while he was there. The incident report he filed is consistent
with this testimony. Rex Davis was not called as a witness in
this proceeding.
The complaint alleges that the Respondent violated the Act
when Davis called the police in an attempt to have the union
handbillers arrested. The General Counsel argues that, because
the union representatives were on public property and not vio-

5 The three individuals who were with Kenyon at the time were not
employees. They were union apprentices on leave to participate in an
educational program in which young members of the Union learned
about the Union and assisted in organizing.
lating any laws during the handbilling, it was unlawful for the
Respondent to call the police. The Respondent counters that the
Respondent simply called the police to investigate whether or
not the union representatives were blocking the public sidewalk
or interfering with traffic by the placement of the rat. The Re-
spondent notes that there is no direct evidence that any official
of the Respondent requested that Officer Cram arrest the union
handbillers.6 The Respondent also points out the lack of evi-
dence that any employees were aware of this incident.
The Board has held that an employer may not prohibit a un-
ion from engaging in peaceful picketing or handilling on public
property and may not cause or attempt to cause the arrest of
individuals engaged in such activities. See Indio Grocery Out-
let, 323 NLRB 1138, 1141 (1997), enfd. 187 F.3d 1080 (9th
Cir. 1999), cert. denied 529 U.S. 1098 (2000), and cases cited
therein. The evidence here does not support a finding that the
Respondent in fact attempted to evict the Union from public
property or to cause their arrest. At most, the Respondent called
the police to investigate whether the Union was encroaching on
private property or impeding traffic, which it had a right to do.
Officer Cram acknowledged that he had to advise Kenyon to
move the rat, the lawn chairs, and umbrella because they were
encroaching on the public right of way. Officer Cram also testi-
fied that it is part of his duties to monitor labor disputes and he
was aware of the handbilling at the Respondent’s premises even
before receiving the call to investigate the Respondent’s com-
plaint. In the absence of evidence that the Respondent at-
tempted to cause the arrest of Kenyon or anyone else, I cannot
find that the Respondent’s action on May 28 rose to the level of
an unfair labor practice. Accordingly, I shall recommend that
this complaint allegation be dismissed.
III. THE CHALLENGED BALLOTS
As noted above, the tally of ballots cast in the March 26 elec-
tion was 6–5 against the Union with 3 determinative challenged
ballots. The challenged ballots were cast by Roger Reid, Ray-
mond Casillas, and Gary Jones. All three voters were chal-
lenged by the Board agent conducting the election because their
names were not on the eligibility list supplied by the Respon-
dent. Because the parties have stipulated that Reid was not
eligible to vote in the election, I shall sustain the challenge to
his ballot. The remaining two challenged ballots are still suffi-
cient in number to affect the results of the election. Resolution
of these challenges turns on whether Casillas and Jones were
eligible to vote in the election by virtue of prior employment
with the Respondent under the formula used by the Board to
determine eligibility in the construction industry. See Steiny &
Co., 308 NLRB 1323 (1992), and Daniel Construction, 133
NLRB 264 (1961), modified at 167 NLRB 1078 (1967). The
parties had agreed, in the Stipulated Election Agreement, that
the Steiny/Daniel formula would apply to determine eligibility
in this election.
The Steiny/Daniel formula provides that, in addition to those
eligible to vote under the Board’s standard criteria, unit em-

6 Kenyon’s hearsay testimony that Officer Cram told him that the
Respondent wanted the handbillers arrested was uncorroborated. Offi-
cer Cram did not testify to any such request and nothing in the police
report indicates that a request was made to arrest anyone.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD222
ployees are eligible if they have been employed for 30 days or
more within the 12 months preceding the eligibility date, or if
they have had some employment in those 12 months and have
been employed for 45 days or more within the 24-month period
immediately preceding the eligibility date. Employees who had
been terminated for cause or quit voluntarily prior to comple-
tion of the last job for which they were employed would not be
eligible under this formula. The Board uses such a formula to
ensure that employees who may have an interest in the outcome
of the election are not disenfranchised because of the short-
term, intermittent, and sporadic nature of employment in the
construction industry. In Steiny, supra, the Board decided that
this formula would apply in all construction industry elections
regardless of the particular employer’s method of operations.
The parties here have stipulated that Casillas and Jones
worked the requisite number of days to be eligible to vote in
this election under the Steiny/Daniel formula. The Employer
contends, however, that Casillas was not eligible because he
declined an offer of recall and that Jones was not eligible be-
cause he had been terminated during his last period of employ-
ment. Because the Employer conceded that Casillas and Jones
satisfied the numerical criteria of the formula and because the
Employer was in possession of the evidence that would resolve
the issue raised by these challenges, I placed the burden of
proof on the Respondent to show that these otherwise eligible
voters were not entitled to vote.
The parties stipulated that Casillas was laid off on September
24, 2003, and that, on November 18, 2003, after the Employer
had inquired through the union hiring hall whether he was
available, he declined recall because he had other employment.
There is no evidence that the Respondent has attempted to re-
call Casillas since that date. Nor is there any evidence in the
record whether Casillas was employed elsewhere at the time of
the election.7 McGuire testified that the Respondent’s “policy”
is that, if an employee refuses recall, the Respondent would not
“typically” go back to him again. McGuire testified that he
didn’t think there were any instances where the Respondent had
offered employment to someone who had declined recall.
McGuire conceded on cross-examination that the Respondent
had no formal policy regarding this matter. Other evidence in
the record indicates that it is Rex Davis, not McGuire, who is
responsible for hiring employees. As previously noted, Rex
Davis did not testify in this proceeding.
I find that Casillas retained his eligibility to vote in the elec-
tion notwithstanding the fact he declined an offer of recall in
November 2003. There is nothing in the Board’s decisions in
Steiny or Daniel Construction that expressly holds that an em-
ployee who has worked the requisite amount of time for an
employer loses eligibility by declining recall. The only specific
exceptions noted are for an employee who has voluntarily quit
or been terminated for cause prior to the completion of the last
job on which he worked. Neither is the case with Casillas. The
Respondent has not cited any cases applying the formula where

7 The parties also stipulated that Casillas has been a part-time weld-
ing instructor in the jointly administered apprentice training program
since 1998, working approximately 16 hours a month. This would not
affect his eligibility under the Steiny/Daniel formula.
the Board has disqualified a voter on this basis.8 Moreover, the
nature of employment in the construction industry, which led
the Board to adopt an eligibility formula in the first place, sup-
ports a finding of continuing eligibility even after a recall offer
has been declined. Because construction employees may work
for different employers at different times, it would not be un-
common for an employee to be working elsewhere when an
opening with the employer came up. It would also not be un-
usual for this employee to work for the same employer again
after his current employment ended. Particularly where hiring is
done through a hiring hall, with employees’ names going on
and off the out of work list, an employee’s unavailability at one
point in time would not extinguish his expectation of future
recall by the same employer were he to become available in the
future at a time when the employer needed workers.
The Respondent attempted to show that it had a policy of not
offering employment to an employee who has declined recall.
Even assuming that such a policy would terminate a laid off
employee’s eligibility under Steiny/Daniels, the Respondent has
not proved the existence of such a policy. McGuire admitted
that the Respondent had no “formal policy.” He testified, essen-
tially, that he didn’t think the Respondent would attempt to
recall an employee who had previously declined an offer of
recall. McGuire conceded he could not think of any instance
where this had occurred. Moreover, McGuire may not have
been the best witness to testify regarding the Respondent’s
hiring policies since he testified that it was his stepbrother, Rex
Davis, who handled such personnel matters. Rex Davis was not
called as a witness. Gayle Davis, who as the office manager
would presumably also be aware of the Respondent’s policies
because she maintained the records and completed any paper-
work required, was not asked any questions about this “policy.”
I find that the Respondent has not offered sufficient evidence to
show that Casillas was no longer eligible to vote on the date of
the election. Accordingly, I shall overrule the challenge to his
ballot.
McGuire testified that Gary Jones was fired on January 30
after he left work early, telling Randy Davis that he was going
home to take a nap. According to McGuire, he became aware of
the situation when he overheard Randy telling Rex Davis about
it. McGuire testified that he came out of his office and told
Randy Davis, “[T]hat man’s fired.” McGuire testified further
that he made the decision to fire Jones because the Respondent
was very busy that week and could not tolerate people leaving
work in the middle of the day. McGuire recalled that this inci-
dent occurred at approximately 2 p.m. McGuire instructed
Randy Davis to get Jones’ time so he could prepare his check.
The following Monday morning, when Jones reported to work,
Randy Davis informed him he was fired and gave him his final
check and a separate check for 2 hours show-pay under the
collective-bargaining agreement. McGuire admitted that no
attempt was made to contact Jones before Monday morning to
tell him he was terminated, which would have avoided having

8 The cases cited by the Respondent involved the eligibility of em-
ployees who had retired, thus severing their employment relationship.
See Columbia Steel Casting Co., 288 NLRB 306 (1988); Belt Super-
market, 260 NLRB 118 (1982).
METFAB, INC. 223
to pay him for showing up Monday morning. Randy Davis also
testified about Jones’ termination. According to Randy Davis,
Jones walked into the office around 1:30 or 2 p.m. and said he
was real tired and was “fixing to go home and take a nap.”9
Randy Davis told Jones that the Respondent was real busy and
asked, “[W]hat do you mean you’re going home and take a
nap?” Jones replied, “Hey, I’m out of here. I’ll see you Mon-
day.” According to Randy Davis, Jones left before he could
stop him. Davis testified that he turned to McGuire and said,
“[D]id you hear that?” and McGuire said, “[T]hat man’s fired,
let’s get his money.” The following Monday, when Jones came
into work, Davis told him, “I hate to have to say this, but it’s
time for us to part company. I’ve got your two-hour show-up
time check and your final paycheck.” Randy Davis could not
recall whether anyone was hired to replace Jones after he was
fired. The Respondent offered no payroll or other records to
show that he was replaced. The Respondent’s witnesses con-
ceded that, on documents submitted to the Texas Work Force
Commission in response to Jones application for unemploy-
ment benefits, the Respondent indicated “permanent layoff”
rather than “fired” as the reason Jones was no longer em-
ployed.10 Gayle Davis, who completed this form testified that
she checked that box because no one was around at the time
and she did not know the circumstances of Jones’ termination.
McGuire testified that he did not see this form until after it had
been submitted to the Work Force Commission.
Gary Jones was called as a witness by the Union. He did not
dispute the testimony that he left work early on his last day of
work to go home and take a nap. According to Jones, he was
tired because he had not been getting much sleep since putting
his mother in an assisted living center. Jones testified that he
left after completing the project he had been working on and
that, when he told Randy Davis he was leaving, Davis simply
asked him if he would be in on Monday. When Jones told
Davis he would, Davis said, “See you Monday.” Jones testified
further that, when he reported for work on Monday, Randy
Davis handed him his papers and said things were slowing
down and he had to let him go. According to Jones, Davis even
asked if he would come back if the Respondent got more work.
Jones said he would. There is no dispute that Jones received
unemployment benefits. Jones disputed the testimony of the
Respondent’s witnesses that the shop was busy at the time of
his layoff. The Respondent’s payroll records show that Jones
left work about 1-hour early on Friday.
The Respondent contends that Jones was not eligible to vote
under the express exception to the Steiny/Daniel formula for
employees who have been terminated for cause prior to the
completion of their last job. Although there is no dispute that
Jones left work early on January 30 to go home and take a nap
and that his employment ended almost immediately thereafter,
there is a dispute whether the Respondent fired him for leaving
early or simply laid him off. The Respondent’s witnesses testi-

9 On further questioning, Davis said this conversation occurred in the
hallway between the breakroom and the office, within earshot of Rex
Davis’ and McGuire’s offices.
10 This is the same box that was checked on the form submitted in
response to Casillas’ unemployment claim.
fied that he was fired. As noted by the Union, the testimony of
Randy Davis and McGuire is not entirely consistent regarding
the sequence of events that Friday afternoon. Also, as noted by
the Union, their testimony is contradicted by the only written
document in evidence, which states that Jones was laid off, not
fired. This document would seem to support Jones’ testimony
that he was laid off because work was slow. Jones testified
further that Randy Davis even asked if he would come back to
work when things picked up. The fact that the Respondent did
not hire a replacement for Jones also undermines the testimony
of McGuire and Randy Davis that the Respondent had a lot of
work to do when Jones walked off the job. Notwithstanding the
conflicting evidence and apparent inconsistencies in the Re-
spondent’s case, I find that Jones was terminated for cause and
thus not eligible to vote in the March 26 election.
I reach my conclusion after careful consideration because it
is more probable than not that the Respondent would have fired
an individual who decided unilaterally that he was going home
to take a nap. Regardless of his reasons for doing this, an em-
ployee who walks off the job can hardly be surprised when he
finds himself unemployed the next day. Moreover, had the
Respondent decided to lay off Jones for lack of work, they
would probably have done so on Friday afternoon, before he
left for his nap, rather than make him come in on Monday and
have to pay him an extra 2 hours pay. A layoff for lack of work
generally is planned in advance and not a spur of the moment
decision. The fact that the paperwork submitted in response to
Jones’ unemployment claim characterized the termination as a
layoff is also not surprising. As Gayle Davis testified, Jones
had not worked for the Respondent long enough for his unem-
ployment claim to be charged against the Respondent. It is also
not unusual in the construction industry for an employer to give
an employee a layoff even where the termination is for cause.
Finally, I note that the slight variations in the recollection of
events by Randy Davis and McGuire are not fatal to their credi-
bility. Any differences are more than likely attributable to the
passage of time and the individual perspective of the witnesses
than an attempt to fabricate evidence. In this regard, Randy
Davis would have no reason to perjure himself in this pro-
ceeding since he no longer works for the Respondent. On the
other hand, Jones, who was unemployed for some time after his
termination, secured employment through the Union after vot-
ing in the election. His allegiance to the Union may have col-
ored his recollection of events.
Based on the above, I find that Jones was not eligible to vote
in the election and that the challenge to his ballot should be
sustained. Because the ballot of Casillas is no longer determina-
tive of the outcome of the election, I shall recommend that a
Certification of the Results of the Election issue confirming that
a majority of the valid votes counted were cast against the Un-
ion.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD224
3. By threatening employees that the Respondent would shut
its doors if they voted in favor of the Union, by offering em-
ployees improved benefits to encourage them to vote against
the Union, by creating the impression among employees that
their union activities were under surveillance, and by interro-
gating employees regarding their union sympathies, the Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
4. The Respondent did not engage in any other unfair labor
practices as alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In order to remedy the 8(a)(1) viola-
tions found, I shall recommend that the Respondent post a no-
tice to employees. Although the Respondent committed unfair
labor practices during the critical period before the election in
Case 16–RM–763, I shall not recommend that the election be
set aside because the Union has withdrawn its objections to the
election. Accordingly, I shall recommend that a Certification of
Results issue in Case 16–RM–763.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, MetFab, Inc., Houston, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that it will shut its doors if they
vote in favor of representation by Sheet Metal Workers Local
Union No. 54, AFL–CIO, affiliated with Sheet Metal Workers
International Association, or any other labor organization.
(b) Offering employees benefit improvements if they vote
against union representation.
(c) Making statements that create the impression among em-
ployees that their union activities are under surveillance.
(d) Coercively interrogating any employee about union sup-
port or union activities.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Houston, Texas, copies of the attached notice marked
“Appendix.”12 Copies of the notice, on forms provided by the

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
12 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-
Regional Director for Region 16, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since March 18,
2004.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
IT IS FURTHER RECOMMENDED that the challenges to the bal-
lots of Gary Jones and Roger Reid be sustained and that a Cer-
tification of the Results of the Election issue in Case 16–RM–
763.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten to shut our doors if you vote in favor
of union representation.
WE WILL NOT offer you benefit improvements if you vote
against union representation .
WE WILL NOT make statements that create the impression that
we are keeping your union activities under surveillance.
WE WILL NOT coercively question you about union support or
union activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
METFAB, INC.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”