Shaw, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 2007

350 N.L.R.B. 354 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 37
354
Shaw, Inc., Rapid River Enterprises, Inc., S & R Ca-
ble, Inc., and Kimron Resources, Inc., a Single
Employer and/or Joint Employer and United
Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO and Local
1098, Laborers International Union of North
America, AFL–CIO and Local 324, Interna-
tional Union of Operating Engineers, AFL–CIO.
Cases 7–CA–37450(3), 7–CA–37450(4), and 7–
CA–37450(5)
July 30, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND KIRSANOW
On September 18, 1997, Administrative Law Judge
John H. West issued the attached decision. The Respon-
dents filed exceptions and a supporting brief. On June 7,
2000, the Board issued an Order remanding the proceed-
ing to the judge for further consideration under its deci-
sion in FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d
Cir. 2002). On March 23, 2001, following the submis-
sion of briefs by the General Counsel and the Respon-
dents,1 the judge issued the attached supplemental deci-
sion and order. The General Counsel and the Respon-
dents 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, the supplemen-
tal decision, and the record in light of the exceptions and
briefs and has decided to adopt the judge’s rulings, find-
ings,2 and conclusions,3 except as discussed below, and

1 The parties agreed it was unnecessary to reopen the record.
2 The Respondents have 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 judge’s findings.
3 We adopt the judge’s determination that Foreman Ron Watson’s
oral request to Supervisor Carl Steuer that he transfer Chad Drumb off
his crew because he supported the Union violated Sec. 8(a)(1), because
it took place in the presence of employee Jared Frank. We find it un-
necessary to pass on the judge’s further determination that Drumb’s
ensuing transfer violated Sec. 8(a)(3), however, because neither
Drumb’s pay nor other working conditions were affected and, thus,
there would be no effect on the remedy if we were to find this violation.
In adopting the judge’s conclusion that the Respondents unlawfully
refused to hire certain union-affiliated applicants, we observe that the
General Counsel did not except to the judge’s failure to find that the
Respondents also unlawfully failed to consider those applicants. In any
event, the judge’s failure to find this additional 8(a)(3) violation has no
effect on the remedy.
to adopt his recommended Order as modified4 and set
forth in full below.
I. SUPERVISORY STATUS OF FOREMEN
The judge found that Respondents’ foremen, Ron Wat-
son, Phil Fix, Rick Klis, and Gary Geister were supervi-
sors under Section 2(11) of the Act. In reaching this
conclusion, he cited their responsibility to assign tasks
and direct employees at the jobsite, as well as their par-
ticipation in determining employee discipline and re-
wards. The judge also found that these individuals en-
gaged in various conduct that violated Section 8(a)(1).
For the reasons described below, we reverse the judge’s
finding that the foremen were statutory supervisors and
that they engaged in certain unlawful conduct.
A. Overview of Foremen’s Duties
The Respondents’ pipeline construction crews consist
of varying numbers of laborers and/or roustabouts, op-
erators, and welders, headed by a foreman.5 The compo-
sition of the crews is determined prior to the start of each
workday by one of the Respondents’ operations manag-
ers or field supervisors,6 with input from the foremen as
to their manpower needs. Foremen drive their crew-

Finally, we clarify and affirm the judge’s determination that the
relevant time period to be examined in calculating the number of avail-
able positions into which the applicant discriminatees could have been
hired extends from May 15 through October 28, 1995. While there
were more than sufficient openings (63) for the 3 applicants who re-
stricted their search to laborer positions, there were only 7 operator
positions available for the 10 applicants who sought both operator
positions and laborer jobs. This is because two of the nine identified
operator jobs filled during the relevant time period were specialized
positions for which the discriminatees would not have qualified. Ac-
cordingly, we leave to compliance proceedings the determination of
which 7 among the 10 operator/laborer applicants should be offered
instatement into operator jobs and which others offered instatement into
laborer positions.
4 We have modified the judge’s recommended cease-and-desist lan-
guage to consolidate into a single paragraph the three threats made by
Respondent Shaw’s president, Ron Shaw, during a June 20, 1995 em-
ployee meeting, relating to the possibility of loss of work.
The judge stated that other considerations regarding the relief to be
afforded the discriminatees may be addressed in compliance proceed-
ings, citing Dean General Contractors, 285 NLRB 573 (1987), and
Ultrasystems Western Contractors, 316 NLRB 1243 (1995). The dura-
tion of the backpay period shall be determined in accordance with Oil
Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007).
5 The composition and number of employees on a crew depend on
the type of job being performed; a crew may consist of as few as 2 to as
many as 20 employees in various classifications. While crews often
include welders, the record supports the Respondents’ contention that
welders are not hired directly by the Respondents, but rather are em-
ployed by subcontractors.
6 At the time of the events of this case, Supervisor/Operations Man-
ager Jim Robb usually drew up the daily crew rosters, assigning vary-
ing numbers of operators, fusers, or laborers as required by the crew’s
project.
SHAW, INC. 355
members to jobsites in company trucks7 and, if neces-
sary, designate someone assigned to their crew to trans-
port employees in additional trucks.
Once at the site, foremen are charged with ensuring the
performance and completion of the Respondents’ job. In
carrying out this function, a foreman might tell a crew-
member to run a loader, or bulldozer, or to pull pipe,
inform welders how he wants the work done, or switch
the task assignments of employees during the day.
Foremen regularly work alongside and perform the same
types of tasks as other members of the crew. Like other
crewmembers, foremen are paid hourly, earning ap-
proximately 50 cents per hour more than operators and
$5 per hour more than laborers. During a normal work-
day, the Respondents’ field supervisors routinely visit the
various jobsites, checking on progress and providing
assistance in solving possible problems. When not on
site, supervisors are readily accessible to foremen by
radio or telephone as necessary. Foremen are provided
corrective action notice forms (also referred to as writeup
sheets) to document employee infractions, which may be
used as bases for disciplinary action.
B. Supervisory Standard
The question is whether the Respondents’ foremen
meet the statutory test as set forth in Section 2(11) of the
Act, which defines “supervisor” as
any individual having the 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.
As the list of relevant factors is stated in the disjunctive,
supervisory status is established if foremen possess any of
the enumerated functions. Oakwood Healthcare, Inc., 348
NLRB 686, 687 (2006). In this case, a question is raised as
to whether the putatively supervisory duties performed by
the foremen involve the exercise of independent judgment.
“[T]o exercise ‘independent judgment’ an individual must at
a minimum act, or effectively recommend action, free of the
control of others and form an opinion or evaluation by dis-
cerning and comparing data.” Id at 8. Furthermore, “a
judgment is not independent if it is dictated or controlled by
detailed instructions, whether set forth in company rules or
policies, the verbal instructions of a higher authority, or in
the provisions of a collective-bargaining agreement.” Id.

7 The Respondents provide foremen with company pickup trucks to
drive to and from work.
The burden of establishing supervisory status falls upon the
party asserting it, see id. at 3, in this case the General Coun-
sel.
C. Analysis
Applying these standards, we find, contrary to the
judge, that the foremen’s authority is significantly cir-
cumscribed and that the General Counsel has failed to
show that foremen exercise independent judgment in the
performance of their putatively supervisory duties. Thus,
we need not decide whether any particular duty was su-
pervisory in nature.
1. Assignment/direction
Turning first to the evidence regarding the foremen’s
responsibilities to assign and direct employees, it shows
that they perform essentially as jobsite lead persons,
overseeing routine functions and following established
prescribed practices. The evidence does not establish
that they exercise independent judgment. Not only do
most of the Respondents’ projects involve tasks which
are recurrent and predictable, but, as described below,
they are also carried out in conformance with supervi-
sors’ specifications and oversight.8
2. Assignment
During the morning meeting at the start of each work-
day, foremen are given a sheet prepared by upper man-
agement, identifying the job they will be working on,
listing the names of the employees assigned to their
crews, and designating the truck(s) to be used on the job.
Foremen assemble their crewmembers and travel with
them to the jobsite in a company truck. They then carry
out the day’s assignment, working side-by-side with the
other crewmembers, in accord with specifications given
to them by supervisors during the morning meeting.
Because the day’s job essentially determines the com-
position of the crew, a foreman’s designation of which
crewmembers will perform particular functions is often
based on an employee’s trade or known skills, and is,
thus, essentially self-evident. For example, if an operator
is part of a crew, he will operate the heavy equipment, a
fuser will fuse plastic pipe, and a welder will handle

8 The Respondents’ operations manager, Greg Lucas, testified that
before a new job begins, Supervisor/Operations Manager Robb goes to
the site with the foreman to examine the area and go over the job plan.
Robb points out the right of way where the pipe is to be placed and the
wells into which the pipe will be attached. In addition, he identifies the
parts and fittings that will be needed for the project, and even specifies
where the pipe being installed should be situated before being placed
underground. In addition, he alerts the foreman to potential problems.
Once a job gets underway, Robb pays regular site visits to oversee and
ensure its progress and to handle any unexpected problems that may
arise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD356
metal pipe. Such assignments do not involve the exer-
cise of independent judgment.9
Other assignments are based on an employee’s readi-
ness to carry out one of the less skilled tasks that com-
pose the bulk of the Respondents’ workload. As the Re-
spondents’ business involves an abundance of unskilled,
laborer-type work, there are often multiple laborers on a
crew. Because their duties tend to be somewhat repeti-
tive and are often physically demanding, foremen rou-
tinely rotate laborers among those tasks to vary their
work and equalize their burdens. Fix described this rota-
tion as trying to keep employees from becoming “burned
out” on a particular aspect of their work. Rotating essen-
tially unskilled and routine duties among available
crewmembers in this fashion does not involve the use of
independent judgment and is not, therefore, indicative of
supervisory authority.10
3. Direction
The foremen’s role in directing the work of crewmem-
bers is similarly limited. While working alongside the
crewmembers, the foremen also oversee the accom-
plishment of the day’s work, providing a degree of direc-
tion to ensure the work’s completion. Such direction,
however, is given in accordance with the Respondent’s
prior instructions.11 Moreover, much of the work per-
formed by the crewmembers is routine and repetitive;
there is no showing that such work requires more than
minimal guidance.12 Accordingly, we find that the fore-
men’s limited role in directing employees in the per-
formance of routine tasks, pursuant to the Respondent’s

9 Assigning employees according to their known skills is not evi-
dence of independent judgment. Volair Contractors, Inc., 341 NLRB
673, 675 fn. 10 (2004); S.D.I. Operating Partners, L.P., 321 NLRB 111
(1996).
10 Oakwood Healthcare, 348 NLRB 686, 694 (work assignments
made on the basis of equalizing workloads is routine or clerical in
nature and does not involve exercise of independent judgment).
In this regard, the Respondents’ foremen are similar to the lead per-
sons in Croft Metals, Inc., 348 NLRB 717, 721–722 (2006), whom the
Board found not to be supervisors. Those lead persons, like the fore-
men, did not prepare employees’ work schedules or assign them sig-
nificant duties, but rather worked alongside them, performing the same
types of tasks, and occasionally switched assignments and rotated tasks,
but within an established routine, requiring the exercise of no real dis-
cretion. See also Austal USA, L.L.C., 349 NLRB 561, 561–562, fn. 6
(2007)
11 Volair Contractors, supra, 341 NLRB at 675 (no independent
judgment in assigning or direction where job layout and task assign-
ments were carried out pursuant to instructions from and blueprints
provided by project superintendent).
12 Croft Metals, supra, 348 NLRB 717, 722 (no supervisory status
where exercise of lead persons’ judgment in directing crews was de-
scribed as “routine” and “employees generally perform the same job or
repetitive tasks on a regular basis and once trained in their positions,
require minimal guidance”).
instructions, has not been shown to involve the use of
independent judgment.13
Finally, such direction as the foremen do exercise is
subject to close scrutiny by higher management. Record
evidence shows that field supervisors or other members
of the Respondents’ management generally visit every
jobsite at least once a day, checking on progress and pro-
viding guidance as needed.14 Further, foremen have the
means to contact and communicate with supervisors
when they are not on site. Problems and questions about
unexpected developments are directed to supervisors for
them to handle. Thus, while the judge describes foremen
as being “in charge” at the worksite, the evidence estab-
lishes instead that they serve as a conduit for carrying out
the Respondents’ assignments, and that the work is regu-
larly monitored by individuals who have both the author-
ity and responsibility to ensure its proper performance.15
4. Discipline
Similarly, the record fails to support the judge’s con-
clusion that foremen exercise independent judgment in
recommending discipline or have the authority effec-
tively to recommend discipline. Watson testified that he
completed a number of “writeup” sheets to memorialize
incidents in which an employee failed to comply with the
employee handbook.16 Watson did not testify that he had
discretion to decide which incidents to record, and the
record does not establish whether the forms were part of

13 We find that the judge erred in characterizing as evidence of the
exercise of independent judgment an incident in which Watson, rather
than either acknowledged supervisor, William Ancel or Steuer, “se-
lected” Frank and “directed” him to drive them a short distance from
the jobsite in the company truck. By focusing on two words rather than
on the facts and circumstances being described, the judge exaggerated
the import and significance of this event. Watson appears to have
selected Frank because of his chance availability to carry out this im-
mediate task rather than from any considered judgment of Frank’s
ability to handle the job. Calling on a readily available employee to
perform a necessary mundane chore, simply to get it done, is not in-
dicative of independent judgment under Sec. 2(11). See J. C. Brock
Corp., 314 NLRB 157, 158 (1994).
14 The judge apparently based his findings with respect to how fre-
quently supervisors appeared at jobsites solely on Fix’s testimony, to
wit: “Sometimes they’d come out every day. Sometimes they might
not.” Q. “How many days, for example, might they not come out?” A.
“Maybe one or two.” The judge took no account of testimony from
Klis or Geister who both stated that supervisors regularly came to the
sites several times during a typical workday; Klis stated that a supervi-
sor would visit, “[t]wo, three times a day, maybe half a dozen times,”
and Geister described their visits as occurring “[p]eriodically through-
out the day.”
15 In any event, being “in charge” does not establish that the foremen
exercise supervisory authority. Dean & DeLuca New York, Inc., 338
NLRB 1046, 1047 fn. 13 (2003).
16 Both Klis and Geister testified that they never filled out these
forms.
SHAW, INC. 357
a formal disciplinary procedure.17 Watson’s understand-
ing of the limitations of his authority is demonstrated by
his description of having given a writeup to an employee
who repeatedly failed to follow instructions. In the space
for the corrective action to be taken for the offense he
wrote “left to supervisor,” although the handbook pro-
vided for termination. Watson’s further testimony also
establishes that he generally did not know what, if any,
disciplinary action was taken pursuant to his writeups.18
Thus, the record does not establish that the writeup forms
played a significant role in the disciplinary process, or
that Watson exercised discretion in determining whether
to complete writeup forms.19
Fix testified that he was once involved in disciplining
an employee. The incident involved two employees
who, contrary to specific instructions, drove a company
truck into a muddy area.20 The truck became stuck and
could not be driven out. Fix testified that he reported this
incident to Supervisor Robb and that he and Robb de-
cided to suspend the two employees for 1-1/2 days.
Even assuming that Fix’s participation in the decision
with Robb amounted to an exercise of supervisory au-
thority, this isolated incident—the only instance on this
record in which any foreman exercised such authority—
is insufficient to establish that the foremen were statutory
supervisors.21

17 Watson testified that he signed corrective action forms at the bot-
tom where it says “Supervisor” because he is “there when it happens
and somebody can’t write it up that ain’t there and sees what’s going
on.”
18 Watson testified that he once forwarded to Supervisor Robb a
writeup regarding an employee who walked off the job. He noted on
the form that the handbook called for discharge and added the words,
“Recommending discharge.” Watson testified that he never saw that
employee working again, but that he does not know “if he ever got fired
or just never come back.”
19 Bon Harbor Nursing & Rehabilitation Center, 348 NLRB 1062,
1064 (2006).
20 Fix testified that before the two employees were sent into the area,
he discussed logistics with Supervisors Robb and Lucas. They decided
that a truck should not be driven into the “nasty, wet” area because of
the likelihood of its becoming stuck. Fix then told the employees they
were to walk, not drive.
21 See, e.g., Greenspan, D.D.S., P.C., 318 NLRB 70 (1995), enfd.
mem. 101 F.3d 107 (2d Cir. 1996), cert. denied 519 U.S. 817 (1996)
(isolated exercise of authority is insufficient to establish supervisory
status); Highland Telephone Cooperative, 192 NLRB 1057, 1058
(same). Watson also testified that he has orally warned employees
about job performance deficiencies. Such warnings are not part of the
Respondents’ disciplinary process and there is no evidence that they
affected employees’ employment status. Cautions of this sort, which
have no impact on the employment status of the person being warned,
are not evidence of disciplinary authority. Heritage Hall, 333 NLRB
458, 460 (2001).
5. Rewards
Contrary to the judge’s further determination, the evi-
dence fails to establish that foremen play a significant
role in affecting employee pay raises. For example,
when asked whether he could recommend raises, Watson
replied only that he “can ask” a supervisor and that there
were “quite a few” instances in which his requests for
raises had not been granted. Geister testified that it was
his practice to tell a supervisor if he thought an employee
had been doing a good job and deserved a raise, but he
did not know whether those employees later received pay
increases. Geister also stated that if an employee came to
him and asked for a raise, he would pass along that re-
quest, whether or not he believed the increase was war-
ranted. Obviously, Geister exercised no independent
judgment in making such recommendations. Thus, we
are unable to conclude that the record supports a finding
that the Respondents’ foremen rewarded employees or
effectively recommended that employees be rewarded.
6. Granting permission for early departure
Finally, the evidence shows that the foremen’s discre-
tion in permitting employees to leave work early is also
sharply restricted. Fix and Klis stated that they could
permit an employee to leave work shortly before the end
of the workday, but that a request for more time off
would have to be presented to the operations manager or
supervisor.22 Fix also testified that if an employee left 30
minutes before the day’s end, he would fill out the em-
ployee’s timesheet to reflect the early departure, ensuring
that he would not be paid for time not worked. This evi-
dence provides no support for finding that foremen exer-
cised independent judgment or discretion in allowing
employees to leave work early.23
Accordingly, for the reasons described above, we find
no basis on which to conclude that the Respondents’
foremen possess any characteristics of supervisory au-
thority enumerated in Section 2(11) of the Act, and we
reverse the judge’s finding in this regard.24

22 Bowne of Houston, 280 NLRB 1222, 1223 (1986) (assistant fore-
man who signed requests for time off held not a supervisor where shift
manager gave final approval to the requests).
23 See L. Suzio Concrete Co., 325 NLRB 392, 397–398 (1998), enfd.
mem. 173 F.3d 844 (2d Cir. 1999) (exercise of limited discretion in
allowing employees to leave early does not involve the use of inde-
pendent judgment); Azusa Ranch Market, 321 NLRB 811, 812 (1996)
(authority to allow employees to leave early on request is routine and
and insufficient to confer supervisory status). See also Sam’s Club, 349
NLRB 1007, 1014 (2007) (no independent judgment shown in permit-
ting ill employee to go home).
24 The judge also relied on the foremen’s attendance at the daily
morning meetings with acknowledged supervisors and their use of
company trucks to travel between work and their homes as evidence of
their supervisory status. Such secondary indicia do not establish 2(11)
status in the absence of any primary indicia. Sam’s Club, supra, 349
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD358
II. THE 8(A)(1) ALLEGATIONS
In view of our determination that the Respondents’
foremen are not supervisors, we reverse the judge’s find-
ings that certain of their actions violated Section 8(a)(1).
Thus, we dismiss allegations that following a June 20,
1995 meeting in which the possibility of unionizing was
discussed, Fix and Klis separately unlawfully interro-
gated employees about their union sympathies. We also
dismiss the allegation that Geister unlawfully created the
impression of surveillance by telling employee Frank on
July 24, 1995, that the Respondents’ principal owner,
Ron Shaw, was in town looking for the “union man.”
In addition, we reverse the judge’s finding that Klis
violated Section 8(a)(1) by stating at the June 20, 1995
employee meeting that unionized employees had to pro-
vide their own transportation to and from jobsites and
were not paid for such travel time. The judge found that
because the Respondents’ practice had been to transport
employees on company time, Klis’ statement was a
threat that unionizing would cost employees this benefi-
cial condition of employment. Unlike the above state-
ments, Klis’ remark was made in the presence of ac-
knowledged supervisors who did not disavow it. Thus,
even though Klis himself is not a supervisor, his remark
is attributable to the Respondents. We find, however,
that the credited evidence is insufficient to support a
finding of a threat.
Employee Frank testified only that Klis said that on
union jobs employees have to provide their own trans-
portation to the jobsite and are not paid for drive time.
Klis did not state that the Respondents’ own practice
would change, but rather only volunteered his apparent
understanding about what the practice was on unionized
jobs. Accordingly, there is no basis to find that these
words reasonably tended to coerce employees.25 See,
e.g., Center Service System Division, 345 NLRB 729,
731 (2005). Thus, we reverse the judge’s finding of a
violation.26

NLRB 1007, 1014; Airport 2000 Concessions, LLC, 346 NLRB 958,
968 (2006).
25 There is no evidence of the context in which Klis made the re-
mark, i.e., whether it was volunteered, made in response to a question,
or on what basis he formed his understanding of any such practice.
26 Contrary to her colleagues, Member Liebman would adopt the
judge’s finding of this violation. Klis’ statement, was unequivocal:
unionizing would result in less advantageous working conditions.
There was no objective basis for this statement. See, e.g., Systems West
LLC, 342 NLRB 851, 852 (2004). Moreover, the statement was made
during a meeting that had been called by the highest level of manage-
ment specifically to counter an incipient organizing effort, during
which unlawful threats and promises were made, and in the presence of
all supervisors and employees. Particularly in this context, Klis’ re-
mark was coercive.
Finally, we find it unnecessary to pass on the judge’s
8(a)(1) finding based on Watson’s statement about pos-
sible job loss, also made in the presence of supervisors at
the June 20, 1995 employee meeting, because it is cumu-
lative of other findings and would not affect the remedy.
ORDER
The Respondents, Shaw, Inc., Rapid River Enterprises,
Inc., S & R Cable Inc., and Kimron Resources, Inc., a
Single Employer and/or Joint Employer, Atlanta, Michi-
gan, their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening that the Respondents would lose work,
reduce their work force, or that their employees would
work fewer hours if they became represented by the
Charging Party Unions, or any other union.
(b) Promising to look into the possibility of providing
a better insurance plan if their employees were not repre-
sented by the Charging Party Unions or any other union.
(c) Promising employees the choice of a picnic, a bo-
nus, or a jacket in order to dissuade them from support-
ing a union.
(d) Threatening that Respondent Shaw would close its
doors if a union came in.
(e) Offering a monetary reward for employees to en-
gage in surveillance of other employees’ union activities
and/or to report union adherents to the Respondents.
(f) Informing employees that union members would
not be employed by the Respondents because of their
association with Charging Party Operating Engineers, or
any other union.
(g) Threatening union adherents with unspecified ad-
verse action and violence.
(h) Informing employees that an employee was being
reassigned from one work crew to another because of
that employee’s support for the Charging Party Unions,
or any other union.
(i) Maintaining an overly broad rule prohibiting the
distribution of literature on company property at any
time.
(j) Failing and refusing to hire qualified job applicants
seeking employment with the Respondents because of
their membership in or affiliation with Charging Party
Operating Engineers, Charging Party Laborers, or any
other union.
(k) 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) Rescind the overly broad rule prohibiting the dis-
tribution of literature on company property at any time.
SHAW, INC. 359
(b) Within 14 days from the date of this Order, offer
Danny McDonald, Michael Adrianse, William Nolan,
Charles Bartholomew, Michael Bartholomew, David
Beebe, William Boone, David DeVos, James Hooker,
Robert Peters, Chad Chapman, Lee Wheeler, and Ronald
Freel instatement into positions for which they applied
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges to which they would
have been entitled had they not been discriminated
against by the Respondents.
(c) Make Danny McDonald, Michael Adrianse, Wil-
liam Nolan, Charles Bartholomew, Michael Bartholo-
mew, David Beebe, William Boone, David DeVos,
James Hooker, Robert Peters, Chad Chapman, Lee
Wheeler, and Ronald Freel whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful discrimination against them, in the manner set forth in
the remedy section of the judge’s decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
Danny McDonald, Michael Adrianse, William Nolan,
Charles Bartholomew, Michael Bartholomew, David
Beebe, William Boone, David DeVos, James Hooker,
Robert Peters, Chad Chapman, Lee Wheeler, and Ronald
Freel and, within 3 days thereafter, notify them in writing
that this has been done and that the refusal to hire them
will not be used against them in any way.
(e) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(f) Within 14 days after service by the Region, post at
its facility in Atlanta, Michigan, copies of the attached
notice marked “Appendix.”27 Copies of this notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondents’ authorized repre-
sentative, shall be posted 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 Respondents to ensure that the no-
tices are not altered, defaced, or covered by any other

27 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.”
material. In the event that, during the pendency of these
proceedings, the Respondents have gone out of business
or closed the facility involved in this proceeding, the
Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondents at any
time since March 13, 1995.
(g) 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 Respondents have taken to
comply.
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 threaten that we would lose work, re-
duce our work force, or that our employees would work
fewer hours if they became represented by a union.
WE WILL NOT promise to look into the possibility of
providing a better insurance plan for our employees if
they are not represented by a union.
WE WILL NOT promise employees the choice of a pic-
nic, a bonus or a jacket in order to dissuade them from
supporting a union.
WE WILL NOT threaten that Shaw, Inc. would close its
doors if a union came in.
WE WILL NOT offer monetary rewards to employees to
engage in surveillance of other employees’ union activi-
ties and/or to report union adherents to us.
WE WILL NOT inform employees that we will not em-
ploy union members because of their association with a
union.
WE WILL NOT threaten union adherents with unspeci-
fied adverse action or violence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD360
WE WILL NOT inform employees that another employee
was being reassigned from one work crew to another
because of that employee’s support for a union.
WE WILL NOT fail and refuse to hire job applicants
seeking employment with us because of their member-
ship in or affiliation with a union.
WE WILL NOT maintain an overly broad rule prohibit-
ing the distribution of literature by employees on com-
pany property at any time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in their exercise of
the rights listed above.
WE WILL rescind the overly broad rule prohibiting the
distribution of literature on company property at any
time.
WE WILL, within 14 days of the Board’s Order, offer
Danny McDonald, Michael Adrianse, William Nolan,
Charles Bartholomew, Michael Bartholomew, David
Beebe, William Boone, David DeVos, James Hooker,
Robert Peters, Chad Chapman, Lee Wheeler, and Ronald
Freel employment in the positions for which they applied
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges to which they would
have been entitled had we not discriminated against
them.
WE WILL make whole Danny McDonald, Michael
Adrianse, William Nolan, Charles Bartholomew, Mi-
chael Bartholomew, David Beebe, William Boone,
David DeVos, James Hooker, Robert Peters, Chad
Chapman, Lee Wheeler, and Ronald Freel, with interest,
for any loss of earnings they may have suffered by rea-
son of our unlawful refusal to hire them upon applica-
tion.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusals to hire the above-named individuals, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that the refusal to hire them will
not be used against them in any way.
SHAW, INC., RAPID RIVER ENTERPRISES, INC., S
& R CABLE, INC., AND KIMRON RESOURCES,
INC.
Joseph P. Canfield, Esq., for the General Counsel.
Lisa Latart, Esq. and Barry R. Smith, Esq. (Miller, Johnson,
Snell & Cummiskey), of Grand Rapids and Kalamazoo,
Michigan, for the Respondent.
Mr. John Cobe, of Kalamazoo, Michigan, for Local 324, Inter-
national Union of Operating Engineers, AFL–CIO.
Mr. Tom Boensch, of Saginaw, Michigan, for the United Asso-
ciation of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada AFL–
CIO.
Mr. Eugene Barrett, of Saginaw, Michigan, for Local 1098,
Laborers International Union of North America, AFL–CIO.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. The charge in
Case 7–CA–37450(3) was filed by United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada AFL–CIO (Pipefitters) on
August 16, 1995.1 The charge in Case 7–CA–37450(4) was
filed by Local 1098, Laborers International Union of North
America, AFL–CIO (Laborers) on August 21. And the charge
in Case 7–CA–37450(5) was filed by Local 324, International
Union of Operating Engineers, AFL–CIO (Engineers) on Sep-
tember 13, and an amended charge was filed in this case on
October 25. By Order issued by the Regional Director for Re-
gion 7 of the National Labor Relations Board (the Board) these
cases were consolidated and a consolidated complaint (com-
plaint) was issued on October 27, alleging that Shaw, Inc.
(Shaw), Rapid River Enterprises, Inc. (Rapid), and S & R Ca-
ble, Inc. (S & R), as a single employer and/or joint employers2
violated Section 8(a)(1) of the National Labor Relations Act
(the Act) by (1) making various threats to the employees; (2)
promising to look into the possibility of providing a better in-
surance plan if the employees were not represented by the
above-described Unions;3 (3) coercively interrogating employ-
ees regarding their union support or sympathies; (4) offering a
monetary reward for employees to engage in surveillance of
other employees’ union activities and/or to report union adher-
ents to the Respondents; (5) informing employees that union
members would not be employed by Respondents because of
their association with Charging Party Engineers, and that an
employee was being reassigned to another work crew because
of that employee’s support for the Charging Parties; (6) creat-
ing the impression of surveillance of employees’ union activi-
ties; and (7) maintaining a distribution rule which prohibits
distribution of literature on Respondents’ property at any time,
and violated Section 8(a)(1) and (3) of the Act by refusing to
hire or consider for hire specified qualified job applicants seek-
ing employment with Respondents because of the applicants’

1 Unless otherwise specified, all dates are in 1995.
2 During the hearing the complaint was amended to include Kirmron
Resources, Inc. (Kimron) as a Respondent. Also, on the last day of the
hearing the General Counsel, in light of testimony given on the next-to-
last day of the hearing, moved to amend the complaint to add par. 22(c)
which alleges that Bill Ancel threatened the loss of work if the Union
came in. The General Counsel pointed out that if Foremen Brian
Allman and Roger Beaty are found to be supervisors, then ancel’s
statement would not violate the Act. The parties were advised that the
motion would be ruled on in my decision.
3 During the hearing counsel for the General Counsel’s motion to
amend the complaint was granted so that it is alleged that on or about
June 20, 1995, at Respondents’ Atlanta facility, Respondents by their
Agent Ron Shaw, promised employees the alternative of choice be-
tween a picnic, a bonus, or a jacket in order to dissuade them from
supporting the Union.
SHAW, INC. 361
membership in or affiliation with the Charging Parties and by
assigning a named employee to another work crew because of
his support for the Charging Parties. Respondents deny violat-
ing the Act as alleged.
A hearing was held in Alpena, Michigan, on March 12–15,
May 14–16, June 18 and 19, and August 20–22, 1996.4 Upon
the entire record, including my observation of the demeanor of
the witnesses, and after due consideration of the briefs filed by
the General Counsel and the Respondents, including a separate
brief filed by Kimron, I make the following
FINDINGS OF FACT
I. JURISDICTION
All of the Respondents’ corporations maintain an office and
place of business in Atlanta, Michigan, and Shaw, Rapid and
S&R are engaged in the pipeline construction industry.5 Kim-
ron is commonly owned with Shaw, Rapid, and S & R, and
Kimron is the employer of the employees used by the other
three entities. The complaint alleges, the Respondents admit,
and I find that at all times material, Respondents collectively
have been engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
With respect to paragraph 10 of the complaint, Respondents
stipulate that Ron Shaw, Gregory Lucas, James Robb, Carl
Steuer, and William Ancel are supervisors within the meaning
of the Act.6
Joint Exhibit 1 is a two-page handwritten list of the appli-
cant’s names on the applications which Shaw, Inc. had in its
files.
The parties stipulated that General Counsel’s Exhibit 63, a
classified ad reading as follows appeared in one of the local
newspapers in February or March 1995:

4 At p. 2309 of the transcript the parties agreed that the originals of
GC Exh. 71, except 71(n), would be returned to Respondents and cop-
ies of the exhibits would be placed in the record. Respondents have
forwarded copies indicating that the General Counsel inadvertently had
the originals place in the record. The copies forwarded by Respondents
are forwarded with the record so that the Board can physically remove
the originals and forward them to Respondents.
5 At the hearing, the parties stipulated that Respondents Shaw, Rapid
river, and S & R (as noted above, Kimron was subsequently added by
the General Counsel’s motion to amend, which motion was granted
over the objection of Respondents) constitute a single-integrated busi-
ness enterprise and can be treated as a joint and single employer for
purposes of the allegations contained in pars. 11 through 27 of the
complaint herein only. The Respondents stipulated to this solely for
purposes of this case and with the stipulation of the General Counsel
and each Charging Party that it is limited to that purpose.
6 Respondents further stipulates that Kim Shaw is the secre-
tary/treasurer and a part owner of Shaw; that jeff Critchfield is vice
president and part owner of S & R; and that Thomas Royce is treasurer
and part owner of S & R. Respondents do not admit that these three
aforementioned individuals are supervisors within the meaning of the
Act.
HELP WANTED: Excavator and dozer operators, Roust-
about and pipe line foreman. Truck drivers. and general la-
borers. Must have clean driving record and be able to pass a
drug test. Apply at: Shaw, Inc. M-32-33, Atlanta . . . .
On March 16, Danny McDonald, who was a member of the
Engineers and who has 6 years’ experience in pipeline con-
struction, submitted an application at Shaw, Inc. (GC Exh. 23.)
He lives in Ossineke, Michigan, which is about 40 to 50 miles
from Atlanta. Subsequently he received a telephone call from
Shaw, Inc. and he was interviewed by Lucas on March 23.
Lucas had McDonald dig a ditch with an excavator and then fill
it in with a bulldozer. McDonald testified that Lucas said that
he did a good job; and that Lucas also said that jobs were on
hold because of the frost laws and winter restrictions regarding
the movement of heavy equipment or pipe on secondary roads,
and that he would get back to McDonald in 2 or 3 weeks. When
he did not hear from Lucas in that period McDonald telephoned
and went to Shaw, Inc. “three times at least” and was told the
jobs were on hold and to come back or call in 2 or 3 weeks.
The last time he went to Shaw, Inc. was June 6. McDonald’s
application indicates that he took the Engineers’ hazardous
awareness training in 1991, 1992, 1993, and 1994. As noted
below, Lucas testified that he did not recall saying anything to
McDonald after the test.
On April 25, John Pacola, who is a business representative
with the Engineers, telephoned Shaw, Inc., spoke with someone
he identified as Kelly, and he told her that he was a heavy
equipment operator and that he was looking for work. Pacola
testified that when he asked Kelly if Shaw, Inc. was doing any
hiring she said yes out of the Atlanta office only; that he asked
her to send him an application; and that he subsequently re-
ceived an application. Pacola made the telephone call after he
became aware of an ad that Shaw, Inc. had placed in the Alpena
newspaper looking for, inter alia, excavators and dozer opera-
tors.
Also on April 25, Rick Stemkowski submitted an application
at Shaw, Inc. in Atlanta. Stemkowski, who is in the Pipefitters
and is a pipefitter and welder, testified that at the time he was
working as a pipefitter on a CO2 plant job that was near com-
pletion; that he and others who were working at the plant went
to Shaw, Inc. to submit applications;7 that on the top of his
application he wrote voluntary union organizer (GC Exh. 27);
that he did not fill out the driver’s portion of the application
because he was not applying for a truckdriver position; that he
has experience in pipeline work; that he saw his brother Steve,
Weeks, Deemer, and Jackowiak fill out and submit applications
at Shaw, Inc. on April 25 (GC Exhs. 28, 29, 30, and 31), re-
spectively;8 that his brother is a welder and pipefitter, Weeks is
a pipefitter, Deemer is a welder, and Jackowiak is an apprentice
pipefitter; that he did not remember ever performing pipefitting
or welding work for a nonunion company; and that he did not
fill out the employment history portion of the application be-

7 He rode with his brother Steve and Wayne Weesk. And he filled
out his application with them and with others from the plant job,
namely, Billy Deemer and Bob Jackowiak.
8 The General Counsel subpoenaed the applications from the files of
Shaw, Inc.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD362
cause he believed that it related to the truckdriver portion of the
application. Jackowiak testified that General Counsel’s Exhibit
31 was his application for employment at Shaw, Inc.; that he
rode to and from Shaw, Inc. on April 25 with John Hoos who
filled out and submitted an application at that time (GC Exh.
32), which is dated April 25; that the brothers Stemkowski,
Weeks, and Deemer were also present when he filled out and
submitted his application; that he recognized Deemer’s hand-
writing on his application (GC Exh. 30); that he left the em-
ployment history on his application blank because he had not
been in the trade very long as a pipefitter; that the pipefitting
job at the CO2 plant lasted for about 2 weeks after they applied
at Shaw, Inc.; and that he wrote voluntary union organizer at
the top of his application. Weeks testified that he has been a
Pipefitter for 19 years; that he applied for a position at Shaw,
Inc. on April 25; that at the time he was working at a CO2 plant
in Gaylord, Michigan; that Jeff Bergkamp told him about the
fact that Shaw, Inc. was hiring and that he should put union
organizer at the top of his application; that there were four other
Pipefitters present at Shaw, Inc. when he filled out his applica-
tion (GC Exh. 29); that he put negotiable on the line which
asked for rate of pay expected; that he did not fill out that por-
tion of the application which he believed referred to applicants
for a truckdriving position which included the employment
record portion; that, as here pertinent, he has worked with steel
and plastic pipe; that at the time he testified herein he was
working on a job 200 miles from his home in Lincoln, which is
60 miles from Atlanta; that when the CO2 job was completed 3
weeks after he applied at Shaw, Inc. he was out of work for 5
months, his unemployment ran out and he did not receive a
telephone call from Shaw, Inc.; and that in the 19 years that he
has been in the Pipefitters he has never submitted an applica-
tion to a nonunion contractor to perform pipefitting work. Wil-
liam Deemer testified that he is in Pipefitters Local 85 and is a
pipefitter and welder; that when the CO2 plant job he was
working on was rained out he went to Shaw, Inc. with a number
of other individuals who were also working on the CO2 plant,
which was nearing the end of the project; that he wrote volun-
tary union organizer on his application and he wrote negotiable
on the line asking the rate of pay expected; that he did not fill
out the “EMPLOYMENT RECORD” portion of the application
because he believed that it referred to a truckdriver position;
that he has a welding rig but he works about 50 percent of the
time without the rig; that he has worked in other States and all
over the State in Michigan; that he has worked on all types of
pipe; that he telephoned Shaw, Inc. about 3 months after he
applied for a position; and that he never heard from Shaw, Inc.
and he has an answering machine. John Hoos testified that he
is a member of Local 85 and a pipefitter with very little weld-
ing experience; that on April 25, 1995, he went to Shaw, Inc.
when the job he was working on was rained out; that the job he
was working on at the time he applied for a job at Shaw, Inc.
was winding down and he was scheduled to be laid off within a
matter of a few days; that he drove to Shaw, Inc. with Jacko-
wiak; that the woman in the office at Shaw, Inc. gave them
applications to fill out and she asked them for their driver’s
licenses; that he turned in his application (GC Exh. 32), to the
woman; that he wrote voluntary union organizer on the applica-
tion; that he did not fill out those portions of the application
which he did not believe pertained to him;9 that he was never
called by Shaw, Inc. and he has an answering machine; that he
has worked for a nonunion company before and he helped in an
attempt to organize that company; that he has worked in vari-
ous places in Michigan; and that he has worked with metal and
plastic pipe and he fuses pipe.
Additionally on April 25, 1995, John Birgy, who is a mem-
ber of the Pipefitters who was a welding certification, went to
Shaw, Inc. to apply for a position. Birgy testified that he went
with Bergkamp, who is a welder; that he asked the woman in
the office at Shaw, Inc. if they had a project that was going to
start and if they were going to be needing people and she re-
plied, “yes”; that he and Bergkamp filled out applications and
then turned them in to the woman in the office; that General
Counsel’s Exhibit 33 is the application that he filled out; that he
went to Shaw, Inc. because the job he and Bergkamp were
working on that day was rained out in the morning and the job
only had a few more weeks of work for him; that he wrote vol-
untary union organizer on the top of his application; that he did
not fill out that portion of the application under driving experi-
ence because it referred to a truckdriving job; that as he left
Shaw, Inc.’s office the woman in the office said that they would
be in contact; that he had an answer machine and they did not
contact him; that he telephoned Shaw, Inc. on two different
occasions10 and the woman who answered the telephone in
response to his questions said that the project was moving on
and he would just have to wait to hear from them on his appli-
cation; that he has fused plastic pipe before; that he has worked
all over Michigan and in New York State; and that he thought
that later in the day the rain stopped and he went to work at the
CO2 plant; and that he did not complete the employment record
potion of the application because he believed that it applied to a
driver position. Bergkamp testified that he is a member of the
Pipefitters and has been a welder for close to 20 years; that he
operates his own welding rig; that on April 25, 1995, he applied
for work at Shaw, Inc. when the job he was working on at the
CO2 plant on Old State Road for Deever construction was
rained out; that he went to Shaw,Inc. with Birgy; that he left
part of his application (R. Exh. 4) blank because he believed
that it applied to a regular full-time truckdriver; that he wrote
voluntary union organizer at the top of his application; that
regarding rate of pay he wrote negotiable; that the “EMPLOY-

9 The application has a shaded area beginning at the bottom of the
first page of the application. The first two lines in this shaded area
read: “Driver Experience & Qualification, Answer the questions in this
section only if applying for driver position.” All of the next page is
included in the shaded area. At the top of this page in the shaded area
the following appears: “EXPERIENCE & QUALIFICATION (cont’d)
answer the questions in this section only if applying for driver postion.”
The next page has only two main topic headings, namely,
“MAINTENANCE EXPERIENCE & QUALIFICATIONS” and
CLERICAL EXPERIENCE & QUALIFICATIONS.” And the top of
the last page of the application deals with “PLATFORM
EXPERIENCE & QUALIFICATIONS.” GC Exh. 71N is an original
application form.
10 July 19 and August 2.
SHAW, INC. 363
MENT RECORD” portion of the application begins with the
following:
The U.S. Department of Transportation requires that driver
applications show all employment for the last three years. Ef-
fective July, 1987 they must also show commercial driver
employment for the seven years immediately preceding this
year period. [Subsection] . . . 391.21(B)(10), (11)[;]
that this language did not play any role in his not filling out the
“rest of the application”; that he never heard from Shaw, Inc.
and he has an answering machine; that he was laid off at the
CO2 plant shortly after applying at Shaw, Inc.; that the next job
that he took was 150 miles from his home; that he did not be-
lieve that he went back to the CO2 plant that day after complet-
ing his application at Shaw, Inc.; and that he also did not com-
plete the employment portion of the application because he
wanted to be interviewed and because the person who referred
him was going to talk with the people at Shaw, Inc. about his
ability aa a welder.
Lucas, who is the operations manager of Shaw, Inc., testified
that the welders which Shaw, Inc. uses work for Tara Energy
which is Shaw’s main customer; that Shaw gets them through
Tara Energy; that Shaw, Rapid, or S & R do not pay the weld-
ers; and that when they need a welder they clear it with Tara
Energy.
The applications of the employees hired after April 27 were
received as General Counsel’s Exhibits 65(a) through 65(ffff).
Additionally, a list of employees hired after March 16 was re-
ceived as General Counsel’s Exhibit 67.
By letter dated May 1 (GC Exh. 26), Pacola requested Ron
Shaw to open lines of communication with respect to Shaw,
Inc. becoming a union contractor.
In early May 1995, Lee Wheeler, who is a member of the
Laborers and worked on pipelines for about 4 years, filled out
an application at Shaw, Inc. Wheeler testified that he indicated
on the application that he was a member of the Laborers and
that he was seeking scale wages, indicating the amount he de-
sired; that when he turned the application back in the woman
glanced over it and she did not ask for his driver’s license or
social security number; that the woman said that when anything
breaks here, we’ll get in touch with you; that he never heard
from Shaw, Inc.; that he did not have a copy of his application;
that he lives in Atlanta; that most of his work is within a 1 to 2
hours drive; that when he went to Shaw, Inc. he did not know
that it was nonunion; that he never went back to Shaw, Inc. or
telephoned it; and that he did not write “voluntary union organ-
izer” on the top of his application. Neither Respondents nor the
General Counsel had a copy or Wheeler’s application.
Also in early May 1995, Ronald Freel, who is a member of
the Laborers and had worked on pipelines for about 8 months at
the time, applied for work at Shaw, Inc. He testified that the
only thing he put on his application which would indicate that
he was affiliated with a union was that he asked for “Union
scale.” After he completed the application he turned it into the
women who worked at Shaw, Inc, and she asked for his driver’s
license and his social security card so that she could copy them.
He never heard from Shaw, Inc. Freel lives in Hawkes, Michi-
gan, which is about 30 miles from Atlanta. He was told by
Laborers’ business agent, Gene Barrett, that Shaw, Inc. was
hiring and that it was a nonunion company. The only time
Freel went back to Shaw, Inc. the company was closed. Nei-
ther Shaw, Inc. nor the General Counsel had a copy of the ap-
plication. Freel testified that his wife is home most of the time
and he did not receive a telephone call from Shaw, Inc.
On May 5, according to the testimony of John Cobe, who is
an organizer for the engineers, he and representatives from the
other trades11 met to discuss having a demonstration at one of
the gas producing companies that employs Shaw; and that there
was no discussion about active direct organizing of the employ-
ees at Shaw.
On May 5, Pacola telephoned Shaw, Inc and spoke with Bar-
bara who, in response to his question, stated that Shaw, Inc.
was still hiring.
On May 8, Michael Adrianse, who is a member of the Engi-
neers, went to Shaw, Inc. in Atlanta looking for work. He had
contacted Pacola at the Engineers who sent him a classified ad
Shaw, Inc. ran in the Alpena newspaper (GC Exh. 7), dated
March 18. Pacola accompanied Adrianse, who was wearing a
jacket with a union insignia on it, when he filled out the appli-
cation at Shaw, Inc. (GC Exh. 8). Also, Adrianse wrote “vol-
untary union organizer at the top of his application. Steuer, a
field supervisor for Shaw, Inc., asked Adrianse what type of
equipment he operated and Steuer asked Adrianse for his cur-
rent phone number and address.12 Upon seeing the area code,
Steuer said that Adrianse had come a long way looking for
employment. Copies of his driver’s license and his social secu-
rity card were attached to his application, along with a copy of
a card showing that he had gone through the Engineers’ Haz-
met training program. On cross-examination, Adrianse testified
that he lives in White Cloud, Michigan; that Pacola told him
that Shaw was a nonunion contractor; that he had 24 years of
experience running excavators on pipeline work; and that
someone looking at his application who knows the industry
would probably be able to figure out that he worked on some
union jobs. On redirect, Adrianse testified that it is not abnor-
mal to go 235 or 300 miles away from your home to work; and
that he never worked for a nonunion company before. And on
recross Adrianse testified that when he traveled a long distance
to a job it was of a definite duration and it was not indefinite
permanent work. Pacola testified that he accompanied Adri-
anse to Shaw, Inc. on May 8; that Barbara at Shaw, Inc. re-
sponded yes when they asked her if Shaw, Inc. was hiring; that
Steuer spoke to them and gave them his business card; that
Steuer said that White Cloud to Atlanta was a long ways to
drive to work; that Adrianse told Steuer that he could run an
excavator and a bulldozer; that Adrianse wrote voluntary union
organizer across the top of his application; that Steuer said that
they would be hiring 2 or 3 weeks after the frost laws went off;
that in 1995 the frost laws went off sometime after the third
week in May; and that Adrianse was asked to give his driver’s
license and his social security card. Steuer testified that he did

11 Cobe specified “the Teamsters, the UA, the Laborers and someone
from the electricians’ union . . . .”
12 Steuer gave Adrianse a business card, GC Exh. 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD364
not remember anyone filling out an application in May 1995
who was wearing a union jacket.
On May 10, Chad Chapman, who is a member of the Labor-
ers and has worked on pipelines for the past 10 years, went to
Shaw, Inc. and filled out an application. When he turned it in
to the woman at the counter at Shaw, Inc. she told him that she
needed his driver’s license and social security card and that he
had not filled the application out thoroughly and he should
complete it. He went back to the lunch room and looked at the
application again and made a copy of it using the copying ma-
chine in the lunchroom. He did not fill out those portions
which he believed referred to driving a truck or being an opera-
tor. When he gave the application back to the woman in the
office she indicated that she did not need his license or social
security card since there was a meeting being held in the office
which housed the copying machine. On the first page of his
application (GC Exh. 10), Chapman wrote “union scale” where
the application asks for the rate of pay expected. Also, he be-
lieved that he was wearing his union jacket with a union logo
on it when he applied a Shaw, Inc. Chapman resides in Ona-
way, Michigan, which is about 25 miles from Atlanta.
On May 15 Adrianse telephoned Shaw, Inc. and was told
that it still was not hiring. He never received a telephone call
from Shaw, Inc.
Also on May 15, members of the Engineers, the Pipefitters,
the Laborers and Local 190 of the Teamsters met at Coyles
Restaurant at Houghton Lake, Michigna. to discuss an organiz-
ing campaign at Shaw. Cobe testified that eight of the mem-
bers of his union, the Operating Engineers, completed applica-
tions for employment at Shaw in his presence at Coyles; that he
reviewed the applications before they were signed; the applica-
tions were signed in his presence (GC Exhs. 2A through 2H)13;
and that each of the applicants physically handed him back the
application. After copying the applications, the eight members
of the engineers, Cobe and two union business representatives
went to Shaw at Atlanta. When they first walked in a secretary
at Shaw asked them if they were there campaigning and Cobe
told her that they were there to submit applications for em-
ployment.14 One of the business representatives present had a
video camera. Each of the eight applicants gave his application
to the secretary. Lucas, the vice president and owner of Rapid,
entered the room and when one of the applicants asked if they
were going to be interviewed that day Lucas said no and the
secretary said that they were still calling people back from lay-
off. The same secretary, identified as Barbara, also said that
the applicants could call in every 30 days to keep their applica-
tions current. And Lucas, in response to a question, said that
they would be hiring in about 4 weeks. Cobe testified that he
then told Barbara that each of the applicants had written “vol-

13 Respectively, James Hooker, William Boone, William Nolan,
charles Bartholomew Jr., Michael Bartholomew, David Beebe, David
DeVos, and Robert Peters. William Scully, a business agent for the
Engineers, testified from personal obersvation about the machinery
which DeVos, Beebe, the Bartholomews, and Nolan can operate and
about the training DeVos, Nolan, and Charles Bartholomew received in
the Engineer’s apprenticeship program.
14 Members of the group were collectively wearing union hats, union
belt buckles, and union jackets.
untary union organizer” on the application; that the applicants
were willing to work at any job at the rate of pay that they were
paying their employees at the time; and that once the applicants
were hired they were going to engage in organizing activity to
organize Shaw’s employees. Cobe also testified that the appli-
cants were not asked for their driver’s licenses or social secu-
rity numbers. On cross-examination, Cobe testified that those
who attended this meeting included representatives of the En-
gineers, the Teamsters, the Laborers, the UA, and the Plumbers
and Pipefitters; that he told the applicants to put negotiable on
the line of the application which asks for the rate of pay ex-
pected so as to avoid any reason for being rejected; that a num-
ber of the Engineers applicants indicated on their applications
that they were formerly employed by Welded Construction,
which has a labor agreement with the Engineers; and that gen-
erally members do not like to travel more than 60 miles to a
permanent job. Boone testified that General Counsel’s Exhibit
2(b) was his application; that he filled out the application in
Coyles restaurant and went to Shaw, Inc. in Atlanta on May 15;
that Lucas said that they would probably be hiring in 2 or 3
weeks; that he was instructed to put union organizer at the top
of the application; that he did not recall that Cobe reviewed his
application before he signed it; that he left the current employer
portion of the application blank because he was receiving un-
employment compensation at the time and there was no current
employer; that he lived in Grayling which is near Atlanta;15 and
that he was told about Shaw’s ad by a person who lives in Al-
pena. Hooker testified that he has been a member of the Engi-
neers for 19 years and most of his experience has been in pipe-
line construction; that in Michigan he has worked up to 120
miles from his home; that he has worked in a number of States
outside Michigan; that he went to Shaw, Inc. on May 15 to
submit an application for employment; that Cobe helped him
fill out the application at Houghton Lake;16 that before going to
Shaw, Inc., copies were made at Grayling; that he believed that
Cobe carried his application (GC Exh. 2(a)), from Grayling to
Shaw, Inc.; that the woman in the front office of Shaw, Inc.
said that they were not hiring at the time; that he said to Lucas,
“I understand that you have some work down the road . . . .”
and Lucas replied, “[m]aybe in two or three weeks, we may be
doing some hiring”; that when he asked about updating the
application he was told it could be done over the telephone; that
he was wearing a union hat when he was at Shaw, Inc.; that in
his application he indicated that he was seeking an equipment
operator or a laborer position; and that he had not worked a
nonunion job in the last 19 years. Picola testified that he had
copied the application which Shaw, Inc. had sent him and eight
members of the Engineers filled them out at Coyles; that they
were then copied at the Union’s office at Grayling; that he,
Cobe, Scully, and the eight applicants then went to Shaw, Inc.;
that Hooker asked if Shaw, Inc. was hiring and a woman there

15 It appears to be about 50 miles from Atlanta.
16 More specifically, Hooker testified that Cobe told him to write
“voluntary union organizer” at the top of the application, and to write
“negotiable” where the application requests the rate of pay expected.
Scully testified that he heard Cobe tell the applicants to put “union
organizer” on ther applications.
SHAW, INC. 365
said, “yes”; and that regarding the meeting at Coyles, he could
not recall if Cobe first mentioned that the applicants should
write “voluntary union organizer” on the top of their applica-
tions but that it was possible that Cobe did.
Additionally, on May 15 Richard Konieczny, who is a mem-
ber of Pipeliners 798 out of Oklahoma and a welder who owns
his own rig, filed an application with Shaw, Inc. He testified
that when he applied at Shaw, Inc. he had been out of work for
18 weeks; that the secretary at Shaw, Inc. asked him for his
drivers license and social security card when he gave her his
application (GC Exh. 35); that he put negotiable on the line
requesting the rate of pay expected; that he listed Pipeliners 798
as his current employer since he was referred out by Local 798;
that while he welded pipe for another of the employers that he
listed, Pioneer Contracting, Inc., Shaw, Inc. worked on another
portion of the same pipeline; that he has worked in Ohio, Indi-
ana, Illinois, and Pennsylvania; that he never heard from Shaw,
Inc. and he has an answering machine; and that in the last 5
years he has not worked for a nonunion company or applied for
work with a non-union pipeline contractor.
By letter dated May 19 (GC Exh. 3), Cobe advised Ronnie
Shaw, the president of Shaw, Inc., as follows:
On . . . May 15, 1995 eight members of the . . . Engi-
neers made application for employment at your company.
These eight . . . have experience . . . and are willing to
work under the same terms and conditions which your
have extended to other employees who are qualified in the
trade.
You will not be able to employ more qualified and
productive employees in any labor market. Additionally,
you can be assured that any protected activity in which
these applicants may choose to engage following their
employment by you will [be] conducted strictly within the
guidelines established by Law and the National Labor Re-
lations Board and will not interfere with their efficiency
and productivity as an employee.
Should you fail or refuse to fairly and nondiscrimina-
torily consider these applicants for employment, please be
advised that we reserve the right to bring such failure or
refusal to the attention of the National Labor Relations
Board as violations of Section 8(a) (1) and (3) of the Act.
If for any reason you refuse to accept these applicants
or if you consider same deficient in any manner, please
advise me immediately so that remedial action may be
taken. Please feel free to contact these applicants through
my office, the Grayling branch office, or the Freeland
branch office.
On May 19, Brian Golden, who is a member of the Pipefit-
ters and a welder, submitted an application to Shaw, Inc. (GC
Exh. 34). He testified that he has worked on pipelines two or
three times a year; that he has fused plastic pipe; that he was
out of work when he applied at Shaw, Inc.; that he wrote union
organizer at the top of the application because the union told
him to do it; that he wrote “neg.” on the rate of pay expected
line because he wanted to see what kind of money he could get;
that when he handed in the application the secretary looked it
over and she said “fine”; that he has worked all over the State
of Michigan and lives in Kalkaska, Michigan, which is about
70 miles from Atlanta; that he has worked nonunion jobs be-
fore, with the last one in the middle 1980s; that he has his own
welding rig; and that when he submitted his application at
Shaw,Inc. the secretary asked him for his driver’s license and
social security card and she made a copy.
When Chapman went back to Shaw, Inc. about 2 weeks after
he submitted his application on May 10 the woman behind the
counter, after leaving the counter to go to an office for a short
time, told him that Shaw, Inc. was not hiring. Chapman, who
has an answering machine, never heard from Shaw, Inc, after
that.
By application dated May 23 (GC Exh. 22), Jared Frank
sought a position with Shaw, Inc. He received a telephone call
from Robb, who he understood to be a general foreman of
Shaw, Inc., on June 14 and was hired as a laborer even though
he did not have any experience in the pipeline construction
industry.
Also on May 23, 1995, Ross Hart, who is in the Pipefitters
Local 798 out of Tulsa, Oklahoma, and a welder, applied for a
position at Shaw, Inc. (GC Exh. 49). He testified that he went
to Shaw, Inc. with Mike Hage; that he was given the applica-
tion form at an earlier union meeting at Houghton Lake and
told to write “voluntary union organizer” on the top of the ap-
plication; that he has a welding rig but he occasionally works
inside a building for employers without his rig; that the secre-
tary at Shaw, Inc. took his and Hage’s application and asked for
their driver’s licenses and social security cards; that he did not
fill out part of the application, “EMPLOYMENT RECORD,”
because he believed that it applied to someone applying for a
truck driving job; that he never heard from Shaw, Inc. and he
has an answering machine; that he was not employed when he
went to Shaw, Inc.; that he has traveled out of state to work and
in Michigan from Detroit to the Upper Peninsula; that his home
in Mt. Pleasant, Michigan, is about 130 or 140 miles from At-
lanta; and that he never telephoned Shaw, Inc. to check on the
status of his application. Hage testified that he is a member of
Pipefitters Local 798 and a welder; that he went to Shaw, Inc.
with Hart and submitted an application for employment;17 that
he received the application form at a union meeting at Hough-
ton Lake where he was told to and he did write voluntary union
organizer on it; that after he gave his application to the woman
in the office at Shaw, Inc. and she looked at the applications,
she asked them for their driver’s licenses and social security
cards; that he never heard from Shaw, Inc. and he has an an-
swering machine; that he lives in Gaylord, Michigan, and
Shaw, Inc. advertised in the Gaylord newspaper for pipeline
workers and foremen; that he has experience working with steel
and plastic pipe; that he has his own welding rig; that he did not
have a job when he turned in the application at Shaw, Inc.; that
he never telephoned Shaw, Inc. after he submitted his applica-
tion; and that in the last 5 years he has not applied at any other
nonunion companies or written voluntary union organizer on
any other application.

17 Respondents alleged that no application was received from this in-
dividual.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD366
On May 24, Hooker telephoned Shaw, Inc. and he was told
that it was not doing any hiring. Subsequently, he telephoned
Shaw, Inc. three times18 and was told the same thing. He never
received a telephone call from Shaw, Inc. His wife is home in
the morning until noon and usually in the evenings. Hooker
was referred by the Engineers to a union pipeline construction
job in Manistee, Michigan, which is 70 miles from his home in
Lake City, Michigan, on May 22 and he worked that job until
November 29. Hooker testified that Atlanta is approximately
140 miles from his home; and that if Shaw, Inc. had offered
him a job as a laborer, he would have taken it and lived in a
trailer with his wife.
Lucas testified that Shaw, Inc. built a CO2 plant north of Vi-
enna Corners, Michigan, during the summer of 1995 and the
job lasted about 3 months; and that Shaw, Inc. used between
two and six roustabouts, including laborers, on the job.
When Boone telephoned Shaw, Inc. about 2 or 3 weeks after
he had submitted his application on May 15, 1995, he was told
that if Shaw hired and if his application was still on file, Shaw,
Inc. would contact him. Boone never received a telephone call
from Shaw, Inc.
On June 5 Barrett, a field representative of the Laborers, at-
tended a union meeting in Saginaw, Michigan. He had Busi-
ness Manager Robert Polarski announce to those attending that
if anyone wanted to fill out an application for Shaw, Inc. in
Atlanta to see him. Barrett testified that during the meeting
people came up to him and filled out an application at the table
at which he was sitting; that after the applications were filled
out he retained them (GC Exhs. 36 through 48)19; that he told
those filling out applications to write “union organizer” at the
top of the application; that part of the last page of the applica-
tion is cut off but he did not know how this happened or when
it happened; and that he knew the work record of some of those
who filled out the applications on June 5, 1995. Jack Hartupee,
who is the business manager of Laborers’ Local 1098 out of
Saginaw, Michigan, testified that he goes out on jobsites almost
daily and he has seen members working; and that some of the
members he has seen working are those included in General
Counsel’s Exhibits 36 through 48. Hartupee sponsored General
Counsel’s Exhibits 51, 52, and 53 for purposes of comparison
with the signatures on the applications received herein as Gen-
eral Counsel’s Exhibits 36 through 48.
On June 6, McDonald, as indicated above, went to Shaw,
Inc. for the last time looking for work as an equipment opera-
tor. He was told by one of the secretaries, described as Bar-
bara, to come back in 2 or 3 weeks. He was offered another job
on June 8.
On June 8 Barrett took the 13 above-described applications
to Shaw, Inc. He testified that he told the secretary in the office
at Shaw, Inc. that he had applications from laborers; that the
secretary looked through the applications and said that they

18 R. Exh. 2 lists subsequent telephone calls on June 7, 13, and 19.
19 GC Exhs. 40 and 48 are not signed. The latter, purportedly the
application of Gary Lee Watson, appears to have been drafted by the
signer of GC Exh. 47, namely Gary’s father, Gilbert Watson, right
down to the same misspelling of “Freind [sic]” in response to the ques-
tion on the first sheet asking who referred you.
were incomplete and she needed a copy of the applicants’
driver’s license and social security number; that he told the
secretary that he was their field representative and that he could
furnish any information needed for these applicants and he gave
her his business card; that although pages two and three of the
applications that he turned in were not completed and they were
not signed at the end, the secretary did not say anything;20 and
that he did not contact any of the 13 applicants to indicate that
they should provide work records, a social security card, or a
driver’s license for Shaw, Inc.
As indicated above, on June 14 Frank was offered a position
with Shaw, Inc. He reported for work on June 15. He waited
for his work assignment in the lunch room with about 75 other
employees. A smaller group of individuals21 met in a smaller
room, described by Frank as the foremens’ room, off the lunch-
room. When they came into the lunchroom they assembled
crews using the list of names they had. On his first day, Frank
worked for Rapid, which Frank testified, does directional bor-
ing. On other occasions before he left Shaw, Inc. on August 23
he worked on Shaw, Inc. crews. Frank testified that Shaw, Inc.
does pipeline work and he estimated that half the time he
worked for Rapid and the other half of the time he worked for
Shaw, Inc. He never worked for S & R.
On or about June 15, Timothy Hoffman began working for
Shaw, Inc. He had submitted an application for employment
with Shaw, Inc. on June 8 (R. Exh. 5), and Robb telephoned
him and offered him a job. Hoffman had submitted an applica-
tion to Shaw, Inc. earlier while he was incarcerated after being
convicted of arson. Hoffman testified that Shaw, Inc. tele-
phoned his mother and told her that the involved crime was too
serious; that later when he was released and hired by Shaw, Inc.
he told his foreman, Watson, that he had been incarcerated and
had to report to his probation officer and Watson said he could
ride with him because he also had to see the same probation
officer; that he usually worked on Watson’s crew; that he had
no prior experience in this field; that before he submitted his
application the second time he saw a couple of ads of Shaw,
Inc., which ads ran a couple of weeks apart, seeking employees;
that he also worked on the crews of Haren, Garcia, and others
identified only as Gary and Phil; that he would be assigned to
crews and such assignments would be specified on sheets of
paper which the foremen had when they left the foremens’
room and came into the breakroom each morning, i.e. (GC
Exhs. 50, and 14(b) and (c)); that a company vehicle was used
to transport the workers to the jobsites and the employees were
paid from the time they showed up for work at the Atlanta fa-
cility; that two or three times a week a “boss other than . . .
[his] foreman” would come to the jobsite and usually stay 10 or
15 minutes; and that when he operated a backhoe, a loader, and
a dozer on Shaw, Inc. jobs he used this equipment to pull pipe
which could have been done with a pickup truck.

20 Most of the applications were signed on the first page.
21 Frank described them as foremen and he indicated that this group
consisted of Ron Watson, Rick Klis, Mark Haren, Lucas, Jim Robb,
Carl Steuer, Gary Geister, Ancel, and Dan Garcia. Frank testified that
Steuer and Robb have their own offices.
SHAW, INC. 367
By letter dated June 16 (GC Exh. 4), Cobe advised Shaw as
follows:
Please continue to keep active the employment appli-
cations from members of the . . . Engineers your office
currently has active in file from the . . . [eight above-
described] members . . . .
Please feel free to contact these applicants through our
office.
On June 20, Frank attended a meeting in the break or lunch-
room along with about 80 other people collectively from Shaw,
Inc., Rapid, and S & R. Before this meeting Frank saw a meet-
ing of foremen and others in the foremen’s room.22 When this
group left the foremen’s room they came into the breakroom
and Ron Shaw addressed the employees, introduced himself
and spoke of the pros and cons of Shaw, Inc. becoming a union
shop. Frank testified that Ron Shaw asked the employees pre-
sent what they thought about Shaw, Inc. becoming a union
shop; that Ron Shaw said that if Shaw, Inc. became a union
shop, it would lose nearly 70 percent of its work because Tara,
which is a utility company which Shaw, Inc. works for, would
not pay union pay scale; that Watson said that anyone hired in
the last 6 months would probably lose their job; that Haren said
that the employees might see a little increase in wages but they
would lose that in union dues; that Klis said that on union jobs
the employees have to provide their own transportation to the
job site and they do not get paid for driving time;23 that when
one employee asked if the employees could get better health
insurance Ron Shaw said that he would look into it and that the
union insurance was terrible; that Ron Shaw said that if Shaw,
Inc. became a union shop, he would have to cut his work force
down to possibly 25 people and the union was basing their pay
scale numbers on the fact that they did Federal and State work
and since Shaw, Inc. did not do this work, it could not pay un-
ion scale; that Tara was being sold and the president and vice
president of the company were forming their own company and
Shaw, Inc. would be getting work from that company; that Ron
Shaw said that even if the union was voted in they would have
to “arbitrate” a pay scale with him and he would not pay a un-
ion pay scale; that Ron Shaw was present when Watson, Klis24
and Haren made their statements; that after the meeting while at
Shaw’s Atlanta facility, Foreman Fix asked him and employee
Mike Maynard what they thought of unions and they replied
that they really had not thought about it too much; that later that
same day Klis asked him what he thought of unions when he
was riding with Klis in the Shaw, Inc. truck assigned to Klis;
that Klis asked this question four or five times and Klis indi-
cated that he had some experience with a union and it was bad
and the employees should not get involved with a union; and
that he made notes regarding what occurred on June 20, and he

22 The group consisted of Ancel, Steuer, Robb, Klis, Watson, Geis-
ter, Fix, Haren, Lucas, and Ron Shaw.
23 As noted above, at Shaw the Company provides the transportation
to and from the jobsite and the employees were paid for the driving
time.
24 Frank’s notes refer to a Rick K. (Rick Klis).
faxed them to Cobe (GC Exhs. 12, and 13(a) and (b)).25 Hoff-
man testified that on the morning of June 20 Ron Shaw met
with the foremen in the foremens’ room and then Ron Shaw
addressed the employees gathered in the breakroom waiting for
their assignments; that Ron Shaw said that it was up to the em-
ployees whether to let a union in but if they did let a union in, a
lot of people would not have a job and they would not get as
many hours; that foreman Haren said the union “ain’t worth a
darn” and if the union got in, the employees would have to
drive their personal vehicles to and from the jobsite;26 that Ron
Shaw and Robb were there when Haren made this statement;
that Ron Shaw told those assembled that they would have to
make a choice regarding bonuses, namely whether they wanted
a picnic or a jacket but he did not include this in his affidavit to
the Board; that he did not remember Ron Shaw saying that they
would lose work; and that Watson did not speak during this
meeting. Former Shaw, Inc. Foreman Fix testified that Ron
Shaw said that Tara Energy told him that if Shaw, Inc. went
union Tara Energy was not going to have Shaw, Inc. work for it
because the union fees were too high; that Ron Shaw said that
if the union came in (1) the people with more seniority would
have work before we would because we wouldn’t have any
seniority; (2) while pay would increase considerably the em-
ployees would have to pay union dues; and (3) when there was
work there would be a lot of work but there would not be as
much year round work; that Ron Shaw, during this meeting,
also talked about whether they were going to have a picnic,
jackets or a bonus and that the choice would be made by sign-
ing a sheet; that someone asked about insurance and Ron Shaw
said that he would look into it and try to improve it; that he did
not recall asking anyone on his crew what they thought of the
Union; and that problems with the insurance had been dis-
cussed before at the morning meetings. Klis testified that he
was present for this meeting but he did not remember what was
said; that he did not think that the opportunity to choose be-
tween a jacket, a company picnic or a bonus took place at this
meeting but rather he believed that it occurred sometime after
this meeting; that in the past Shaw, Inc. offered company jack-
ets or company picnics; that he doubts that he drove anyone to
a drug test on June 20; that he does not recall asking Frank
what he thought of the union; that he did not say that employ-
ees would no longer receive travel pay or be paid for travel
time if Shaw became a union contractor; that he was never
offered a choice between a jacket, a picnic, or a bonus before;
that he was never offered a choice involving a bonus before;
and that he might have talked to Frank about the union but he
did not remember and “[i]f we asked him maybe just sitting
there at lunchtime talking about the union or something but as

25 GC Exh. 12 is the original notes. GC Exhs. 13(a) and (b) were the
notes Frank typed after speaking to Cobe about the involved occur-
rences and his original notes of the occurrences of June 20. Frank’s
father-in-law, Boone, was one of the above-described individuals who
applied for work at Shaw on May 15. Frank agreed to supply Cobe
with information abou Shaw, Inc.
26 Hoffman conceded that his affidavit indicates that he did not recall
anyone saying that the employees would no longer be driven by Shaw
trucks to the jobsite if the Union came in. Hoffman indicated that the
affidavit was not correct on this point.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD368
far as asking him, no I wouldn’t.” Shaw, Inc. Foreman Geister
testified that it was not normal for Ron Shaw to address the
employees en masse and the last time he spoke to the employ-
ees as a group was at the preceding years Christmas party; that
the June 20 meeting was a meeting concerning becoming a
union company; that some of the employees at the meeting
indicated that they were not satisfied with the health insurance
and Ron Shaw said that he would be looking into getting better
insurance; that he did not remember anything else that was said
at the meeting; that employee Gary Teats asked what would
happen if the union came in and he responded to him; that he
could not remember for sure when he was asked to make a
choice between a jacket, a picnic or a bonus but this did not
occur during the June 20 meeting; that Ron Shaw said that the
reason they were meeting was to talk about the union; that to
“[b]e honest with ya, I can’t remember one thing he said about
the union. And that’s the honest truth”; that Ron Shaw may
have said we may have to downsize; and that he was not posi-
tive that Ron Shaw said that they may have to downsize. Wat-
son testified that he was present during this meeting; that Ron
Shaw was talking about the union “wanting in”; that Ron Shaw
said something about some people would be cut on jobs be-
cause it would take work from us in that Shaw, Inc. would not
be able to underbid competitors; that Ron Shaw said that he
was trying to get better insurance; that it was said that there
would be higher wages; that he did not say that anyone hired
within the last 6 months would lose their job if the Union was
voted in; and that the choice between a jacket, a picnic, or a
bonus was mentioned during this meeting and it was indicated
that they were going to send out some papers for people to
check off which they wanted. Rapid’s supervisor, Ancel, testi-
fied that he was present during this meeting; that Ron Shaw
said that the union was making its presence known and there
was nothing that the company could do to stop the employees
from taking a vote; that he did not really remember anything
else that was said at that meeting; that he heard someone say
that having the union is going to result in a higher scale and
someone else saying that that does not mean lots of work but he
did not know if any of the individuals speaking were supervi-
sors or foreman; and that he remembered that Terra was not
discussed at this meeting. Steuer testified that all that he re-
membered about this meeting which lasted 45 minutes to an
hour was that Ron Shaw said there was nothing he could do if it
came down to a vote and he, Steuer, told employees that gener-
ally, from his past experience, most unions do not pay travel
time. Ron Shaw testified that he was prompted to conduct this
meeting because they were having problems with their health
insurance in that two employees were initially denied coverage;
that both incidents occurred about 2 months before the meeting
but although they were resolved, he was told 2 weeks before
the meeting that the insurer’s explanation was not clear; that
during the meeting with the employees he explained that the
insurance was in effect and that he was looking into other alter-
natives for insurance; that during this meeting the employees
were asked if they wanted to have their picnic or jackets or a
bonus; that the Company had earlier given jackets or picnics to
the employees; that one of the employees asked him if they
were going to be a union company and he replied that it was up
to the employees; that someone asked his opinion on whether
or not the Company would be union and he replied that most of
their work is time and material work and most of the union jobs
are bid jobs; that he did not specifically mention any primary
customers; that he did mention that about 90 percent of their
work was time and material versus bid work; that someone said
at the meeting that operators in the union make $20 some an
hour and he replied that could be possible if it was the prevail-
ing wage on a federally funded job; that the meeting came to an
end when it was opened to questions and different groups split
off; and that he was aware that there were discussions but he
did not recall what they were. Ron Shaw answered “no” to the
following questions propounded by one of counsel for Respon-
dent: did you say that (1) if the Company went union you
would lose 70 percent of your work; (2) Terra would not hire
you if you went union; (3) the work force would be cut down to
approximately 25 employees; (4) Terra would not pay union
scale; (5) Terra was being sold or a new company was being
formed with Terra executives and your company would get all
of the work; (6) wages with a union had to be arbitrated; and
(7) you would not pay union wages. On cross-examination,
Ron Shaw testified that he met with the employees as a group
in December 1994, on June 20, 1995, and around Christmas in
1995; that the June 20 meeting, which lasted about 20 minutes,
was held because two employees were told a month or two
before the meeting that they were not covered by the health
insurance program; that the purpose of the meeting was to as-
sure the employees that they were covered by medical insur-
ance; that he did not mention the union and the union only
came up because an employee asked about it; that he did not
say anything about how being union would affect the amount of
work he would get; that Terra Energy is his major customer but
Terra was not mentioned at all at the meeting; that no employee
asked questions about health insurance; and that he did not talk
at all about the size of the company and what might happen if
the union succeeded. On redirect, Ron Shaw testified that he
was aware of the insurance problem 2 months prior to the June
20 meeting. Subsequently, he testified that a week or two be-
fore the meeting his people could not figure out what was going
on about the health insurance.
Frank kept a daily log which he forwarded to Cobe. The log
for June 21, was received as General Counsel’s Exhibit 14(a)
and the list of employees and “foremen” referred to therein was
received as General Counsel’s Exhibit 14(b). Frank testified
that he received the list from Fix; and that the list was the list
which the foremen carried out of the foremens’ room and
which they used to assemble crews.
On June 27 Ancel came out to the job that Frank was work-
ing on. Frank testified that a new employe, Tony Wiacek,
questioned Ancel about whether they were having union prob-
lems; that Ancel said that the union talk was getting out of
hand; that Ancel said that Ron Shaw had personally told him
that he would not go union, he would close the doors because
he had already made his money; that Ancel also said that they
suspected that there was a spy or informer or somebody work-
ing for the union at Shaw and he was offering a $200 reward to
anybody that would turn him in; that he thought Ancel was
joking so he did not include his remark in his daily log (GC
SHAW, INC. 369
Exh. 16), until after he spoke with Cobe; and that the reference
to the $200 was added on July 9, 1995. Wiacek testified that
Ancel came to the jobsite the first day Wiacek worked for
Shaw, Inc.;27 that he had a conversation with Ancel; that Ancel
asked him if knew any other operators; and that during this
conversation Ancel did not say (a) what type of applications
Shaw had on file, or (b) that Shaw was looking for operators
but all they had were union applications. Waicek also testified
that while he was talking with Ancel Jared Frank interrupted
their conversation and Frank said that he used to be a union
painter out in Pennsylvania and Frank was bragging about how
much money he made working for that union. On cross-
examination, Wiacek testified that counsel for the General
Counsel was correct that he, Waicek, at the time he testified
herein, drove a truck to Detroit early in the morning; that he did
not remember speaking to counsel for the General Counsel; that
he voluntarily quit Shaw;28 and that Ancel said that he needed
operators but he did not give Ancel any names because the
operators he knew all had jobs. Subsequently, Waicek reiter-
ated that Ancel did not say anything about the union during the
two conversations he had with Ancel on these 2 consecutive
days; that “[i]f anything was said to that effect to get him
[Frank] going talking about it [the union] I never heard it”; and
that it was just him and Ancel talking when Frank interrupted.
Klis testified that he never heard anyone offer a reward for a
union informer. Ancel testified that he did not remember hav-
ing a conversation with anyone at this jobsite on June 27 and
did not remember an employee named Anthony Wiacek. Ron
Shaw testified that he did not go to the Shaw facility to look for
a union man in July 1995 and he not did tell anyone that this
was what he was doing; that he did not tell anyone that if the
union was voted in he would close the doors of Shaw, Inc.; and
that he did not offer a reward for a union spy and he did not tell
anyone to say this.
On June 28, according to the testimony of Frank, Ancel
came out to the job that he and Wiacek were working on and
Frank overheard Ancel ask Waicek if he knew of anybody that
had any friends that were looking for work as an operator.
Frank testified that Waicek said he did not and he asked Ancel
why; and that Ancel said that Shaw needed operators because
the only applications that they had on hand were those of union
members.29 Waicek testified that on the second day that he
worked for Shaw Ancel came to the jobsite and found an em-
ployee sleeping in a truck; that Ancel asked him how long the
employee had been sleeping; and that during this conversation
Ancel did not say (a) that Shaw would not go union; (b) that
Shaw would close its doors; (c) that he was getting tired of
union talk; and (d) anything about suspecting a union informer
or about offering $200 for union informers. On cross-
examination, Waicek testified that it was raining the second day
when Ancel came to the jobsite. Ancel testified that he re-

27 Waicek knew Robb before he was interviewed by him (and Lucas)
and hired at Shaw, Inc.; and he built Robb’s house in 1991.
28 When asked on cross “[a]re you doing any work for Shaw
now?”he replied, “[n]o sir. Since I quit I have not talked to anybody
that’s worked for Shaw.”
29 Frank’s daily log for June 28 was received as GC Exh. 17. Frank
testified that the reference therein to Bill “(Quinlen?)” is Bill Ancel.
membered finding employee Godin sleeping at this jobsite but
he did not remember having a conversation with any other em-
ployee that day. Ancel answered “no” to the following ques-
tions propounded by one of counsel for Respondents: did you
have any conversations about the union near the laborers who
were working on the Iron Oxide project, did you ever say to
those employees that you were getting tired of the union talk,
did you ever say that at any time, did you ever say that Shaw
had told you that Shaw, Inc. would not go union, were you told
this, did you ever say that Shaw had made his money and he
was just going to close the doors, did you ever say that Shaw
suspected the there was a union informer, did he ever say that
Shaw would pay $200 for someone finding a union informant,30
did you tell someone that you were looking for operators be-
cause all you had on file were union applications from opera-
tors, did you know the status of applications that were in the
file for operators, did you play any role in hiring operators,
were you looking for another operator in the summer of 1995,
did you ever offer a monetary reward for employees to watch
other employees’ union activity and did you ever tell anyone
that they would not be employed by Shaw because of their
association with the Union. Ancel also testified that when he
was at the jobsite Rapid’s two foremen at the time, Beaty and
Allman, asked him, when they were alone, what he thought of
the Union’s presence. On cross-examination, Ancel testified
that he was not sure if Shaw, Inc. needed operators when the
Iron Oxide job was in progress; and that he told Beaty and
Allman that the Union would only raise the cost of work, the
work that is given to them might be put up for bids and if the
Unions came in it might result in a loss of work. Steuer testi-
fied that he never heard Ron Shaw offer a reward for a union
informant; and that he never made a statement like that to other
employees.
On July 5, the following ad appeared in the Alpena News:
MECHANIC REQUIRED duties; Shop foreman, heavy
equipment experience, able to maintain preventative mainte-
nance program. Send resume to Mechanic, 16860 M-32/m33,
Atlanta, MI 49709.
On July 8 Frank, according to his testimony and his daily log
(GC Exh. 19), operated a backhoe most of the day.
On July 10 Frank was in a truck with Steuer, Ancel, and
Watson. Frank testified that he was working as a fuser when
Watson, Steuer, and Ancel walked out of the woods and said
that they needed to use the truck that Frank’s crew had because
they did not want to walk back through the woods to get their
trucks; that he was recruited to ride with Steuer, Ancel, and
Watson back to their trucks so that he could return the bor-
rowed pickup back to his crew; that Watson, who was driving,
said that he liked the four door pickup because he could load a
lot of men in it for when the union came around; that he asked
Watson why he would say that; that Steuer and Ancel replied
with Ancel saying that they had a surprise for those union boys
(Actually Ancel said those “mother fuckers”) if they came back
around and with Steuer saying that they had some “hungry

30 This and similar inquiries included counsel asking were you told
and did you say this at a particular location.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD370
fuckers” for those union boys when they came back around;
that he asked them what they would do when the union came
back; that Watson said that if they put a picket line up, he
would run “the fuckers” over; that he said that they would
probably get fired for it; that Steuer said no, that “he would
personally see to it that he would get a raise for doing it”; and
that he made notes of the discussion (GC Exh. 20), and sent
them with the daily log to Cobe. Watson testified that he re-
membered the involved truck ride; that he rode in the truck with
Steuer, Ancel, and an employee who drove the truck; that with
respect to what he talked about in the truck “[h]onestly, . . . [he
did not] remember”; that they could have joked about the union
during the truck ride; that he did not make any statement re-
garding what he would do with that truck and with union indi-
viduals; that he did not remember Ancel saying that “he would
have a surprise for the mother-fuckers when they came back”;
that he did not recall saying if the union individuals came back
he would run them over; and that it is possible that he said this.
Ancel testified that he, Steuer and Watson were at the Hay
Meadow Pipeline project on July 10; that Watson directed one
of his laborers, Frank, to give the three of them a ride in a
pickup truck so that they would not have to walk back through
the swamp to their trucks; that he believes that Frank drove the
truck;31 and that the ride only lasted 5 minutes. Ancel an-
swered “no” to the following questions propounded by one of
counsel for Respondents: did you have any discussions in that
truck about the Union, did you say that you’d have a surprise
for the “mother fuckers” when they came back, do you recall
Steuer making any statement regarding what he would do to the
union supporters, you don’t believe Watson said that he would
run over the union supporters, and do you remember Frank
making any statements during that ride. Steuer testified that he
believed that the laborer drove the truck; that he did not re-
member what conversation he had in the pickup truck; that he
did not believe that the Union was discussed during the ride;
that he did not say that Watson would get a raise if he ran over
some union members and he did not remember Watson saying
anything about trying to run over union members; that the ride
lasted probably 10 minutes; and that while he remembered the
ride he did not remember if anything was said.
According to his testimony, around July 11 Cobe returned to
Shaw’s shop premises to distribute handbills (GC Exh. 5) as the
employees came to work. He was accompanied by Pacola,
Scully and Ron Spiker of the Engineers, and Barrett and Ron
Elliott of the Laborers. Cobe testified that they were on the
public property right-of-way by the entrance to Shaw and he
gave handbills to employees on their way to work; that he was
wearing a jacket which had a 4-inch emblem “George Meany
Center for Labor Studies” on the left breast area; and that
Scully, Pacola, and Hooker had on Engineers jackets on that
day and Hooker and Pacola were wearing Engineers hats. On
cross-examination, Cobe testified that Skully was wearing an
Engineers jacket when asked whether Pacola and Hooker had
any other union insignia on; and that this was the only time he
showed up at Shaw’s facility to distribute union material before

31 Subsequently, he testified that the truck was driven by either Frank
or Watson.
or after July 11. Cobe also testified that sometime before or
after July 11 he had about three mailings to individuals who
work for Shaw regarding the organizing campaign at Shaw.
On July 12 Frank telephoned Shaw, Inc. to indicate that he
would be arriving late for work. He testified that Robb an-
swered the telephone and told him to get in as fast as he could;
that when he arrived at work approximately 20 minutes late,
Robb told him “to go home and to come back to work on time
tomorrow and maybe he would let me work”; and that he was
not paid for the day.
By letter dated July 14 (GC Exh. 6), Cobe reiterated to
Ronnie Shaw what he indicated in his above-described June 16
letter.
Around mid-July 1995, Hoffman was terminated after being
hurt on the job and being under a doctor’s care.
On July 24, according to the testimony of Frank, Shaw, Inc.
Foreman Geister said that Ron Shaw was in town and he was
looking for the union man. Frank’s daily log for July 24, 1995
(GC Exh. 21), refers to Ron Shaw looking for “union man.”
The log also refers to Chad taking flyer and talking about union
wages. Frank testified that the day after the Union passed out
literature he overheard “Watson was complaining about Chad
D. (Drumb) had stopped the day before and taken a flier from
the Union and that previous day had been talking about wages
laid out in it”; that he overheard Watson telling Steuer that he,
Watson, did not want Chad on his crew because he felt that
Chad was a union man; and that Steuer said that he would put
Chad someplace else. On cross-examination, Frank testified
that Kevin Hibner may have overheard part of the discussion
about Chad Drumb. Geister testified that he did not tell em-
ployees about Ron Shaw looking for a union man; that he never
specifically said that Ron Shaw was in town and he was look-
ing for a union man; that he was never told that; that he never
heard anybody else talking about looking for a union informer;
and that he never heard anyone offer a $200 reward for a union
informer; that employee Chad Drumb was on his crew; that he
observed Drumb taking abuse from a foreman about his,
Drumb’s, support for the union; and that when Drumb took the
handbill from the union handbillers on the way into work he,
Geister, overheard Foreman Watson say, “[W]ell there’s a un-
ion guy.” Watson testified that he remembered Drumb; that
Drumb worked on his crew; that he did not remember asking to
have Drumb transferred off his crew and it was not possible
that he did because Drumb was taken off his crew because they
needed a fuser; that he did not recall asking Steuer to take
Drumb off his crew; that the normal procedure to follow when
he wanted someone removed form his crew was to speak to
Steuer or Robb; that he never told any employees that someone
was being assigned to another crew because they supported the
union; that he never tried to have any employee transferred
because he supported the Union; that he did not recall if he saw
Drumb take a union handbill; and that he could not say how
long after the union handbilling Drumb left his crew. Steuer
testified that Respondent’s Exhibit 21 shows the crew assign-
ments for July 10 through the 14; that according to the assign-
ment sheets, Drumb was on Fix’s crew on July 10, 11, and 12;
that Frank was on the off list for July 12, which means that he
did not work on that day; that Drumb was on Watson’s crew on
SHAW, INC. 371
July 13 and Drumb was on Geister’s crew on July 14; that he
was not approached by Watson about reassigning Drumb to
another crew; that he never told any employee that an individ-
ual was being reassigned from one crew to another because of
his support for the union; and that never reassigned an em-
ployee because of his support for a union. Drumb testified that
he worked for Shaw, Inc. from September 27, 1994, until De-
cember 26, 1995; that he did not believe that he was transferred
off Watson’s crew because of his union views; that he worked
on Watson’s crew after the summer of 1995; that it was a
common practice to be transferred from crews; that in October
1995 he asked for and received a raise from $6.75 an hour to
$7.25 an hour although the handbook indicates that the raise
should have been up to $7.50 an hour; that he did take union
literature when the union handbilled; and that no one com-
mented about the fact that he took the union literature.
On August 22, when Frank returned to Shaw, Inc.’s facility
from a jobsite he found his tires slashed. He telephoned Cobe
and told him that he did not feel safe continuing to work at
Shaw, Inc.
On August 23, Frank spoke to Robb about what happened
the day before. Frank testified that he told Robb that he had
just come from the police station where he had filled out a re-
port on the incident; that Robb asked him if he had any enemies
that he knew of and he replied that he did not; that Robb then
said it looks like he did and maybe he “should go home and
take the rest of the day off and think about what I was doing”;
and that Robb was chuckling or laughing at him. Frank did not
return to work at Shaw, Inc. Subsequently, he received job
referrals from the Unions even though he was not a member.
Lucas testified that during the spring and summer 1995 he
reviewed all of the applications that were received by the Com-
pany; that no one evaluated the applications before he did; that
employees were hired by Shaw, Inc. in the spring and summer
1995; that he did not interview all applicants before making a
hiring decision; that in spring 1995 when the frost laws were in
effect it was a little slow and he did have operators take a prac-
tical test or give a demonstration of their ability behind the
shop; that in 1995 he reviewed the applications for laborers
positions and he passed on to Robb the ones he considered for
hiring; that he reviewed the operator applications and separated
them in terms of those he was interested in and those he was
not interested in; that during spring and summer 1995 individu-
als were hired based solely on the information on their applica-
tion; that Respondent’s Exhibits 5 through 20 are the applica-
tions of people who applied for employment but were not hired;
that he likes to hire people who live in the area around Atlanta
because the employees work 12 to 13 hours a day year round;
that when he hires an employee he hopes the individual will
work for the Company on an indefinite basis; that it is impor-
tant to have a potential employee recommended to him; that the
employment record portion of the application is important to
him because he looks for stability and the kind of money the
applicant made with prior employers; that he does not contact
applicants who have not filled out some portion of the applica-
tion and ask them to complete it; that he noticed that all of the
applications which were submitted by a business agent of the
Laborers (GC Exhs. 36 through 48) had union organizer on the
top of the application and he remembered determining that
none of those applicants lived in the area, the applications were
not the Company’s normal application form, there were no
previous employment records, he would not consider hiring
these applicants and he put their applications in the folder not to
hire; that, with respect to General Counsel’s Exhibits 27
through 35 he reviewed those applications and determined that
some live in the area, but Shaw, Inc. does not hire welders or
someone skilled in pipefitting work and all of these applied for
those positions; that he reviewed the applications received as
General Counsel’s Exhibits 2(a) through (h), which were those
which were submitted the day a group came to Shaw, Inc. and
videotaped, and he determined that those applicants lived too
far from Atlanta and their employment records were not very
stable; that he reviewed the application of Adrianse (GC Exh.
8) he did not remember meeting with this applicant, and he
determined that he would not hire him because he lived in
White Cloud which is about a 4-hour drive from Atlanta; that
the fact that voluntary union organizer was written on the top of
certain of the applications was not a factor in determining
whether he was interested in the applicant; that he did not recall
giving McDonald a test on March 16, 1995, but his application
form (GC Exh. 23) shows that he gave McDonald a “1” on the
test;32 that “1” is the lowest one can do on the test33 and he did
not recall saying anything to McDonald after the test; that the
“laborer” at the top of McDonald’s application probably means
that he asked him if he was interested in working as a laborer;
that he has no specific recall of his decision not to hire Chad
Chapman (GC Exh. 10); that during the period involved herein
he hired a number of individuals,34 some of whom were prior
employees of Shaw, Inc. at its prior location in Kalkaska,
Michigan35; that in mid-summer 1995, he had Robb hire a lot of
the laborers and he, Lucas, was not sure if he reviewed all of
the applications before the laborers were hired; that this prac-
tice ended in spring 1996; and that Robb did not interview la-
borers before they were hired. On Cross-examination, Lucas
testified that he did not hire the applicants specified by the
General Counsel36 because collectively they had an unstable

32 According to Lucas, McDonald received a “1” on the excavator
and a “1” on the bulldozer.
33 A “5” would be the highest score.
34 Lucas specifically indicated roger Beatty, Keith Sharboneau,
James Williams, Steve Scholl, Calvin Garns, Chris Caplan, Jay Weber,
Shawn Barrie, Earl Smith (according to Lucas, Smith told him that he
was in the Union); Larry Lipka (Lucas gave his application to Steuer to
contact), Robert Johnson, and James Wilson (Lucas gave the applica-
tion to Robb to contact).
35 Scholl, Caplan (both Kalkaska and Atlanta), Weber, and Johnson.
36 Chad Chapman (GC Exh. 10); Ronald Holmes (GC Exh. 36); Fre-
derick Bublitz (GC Exh. 37); Jay Walsh (GC Exh. 38); Rod Givens
(GC Exh. 39); Paul roe (GC Exh. 40); Richard Holmes (GC Exh. 41);
John Meier (GC Exh. 42); Leonard Wixson (GC Exh. 43); Brian Libera
(GC Exh.44); Joseph steudie (GC Exh. 45); Ronald Pols (GC Exh. 46);
Gilbert Watson (GC Exh. 47); Gary Watson (GC Exh. 48); Ross Hart
(GC Exh. 49); Jeff Bergkamp (R. Exh. 4); Rick Stemkowski (GC Exh.
27); Steve Stemkowski (GC Exh. 28); Wayne Weeks (GC Exh. 29);
William Deemer (GC Exh. 30); Robert Jackowiak (GC Exh. 31); John
Hoos (GC Exh. 32); John Birgy (GC Exh. 33); Brian Golden (GC Exh.
34); Richard Konieczny (GC Exh. 35); James Hooker (GC Exh. 2A);
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD372
work history, no previous employment was listed or the em-
ployment history is not fully filled out, the position sought is
not specified, the rate of pay expected is not given or is too
high, the application is not signed on the back, the applicant did
not live close enough to the Atlanta area,37 and Shaw, Inc. does
not hire welders or pipefitters; that he lives in Gaylord which is
about 32 miles from Atlanta, Ancel lives at Houghton Lake and
Steuer lives in East Jordan;38 that to his knowledge the only
person hired without an application was Supervisor Joseph
Ellie; that he was the one who decided to hire Keith Shar-
boneau (GC Exh. 65 I) and James Williams (GC Exh. 65N);
that he usually does not look to previously submitted applica-
tions to fill jobs; that at the time of the hearing herein his file
contained applications from 30 days back; that he would not
look at all of the current applications and pick the person he felt
was best qualified; that if he found a “good one” that was cur-
rent he would hire him; and that the procedures have been
changed so that applications are kept for 30 days only, they
must be filled out in the office, a driver’s license and a social
security card must be provided, and the application can only be
filled out during certain times of the day. On redirect, Lucas
testified that he thought these changes took place “right around
the first of the year” and subsequently, Lucas testified that the
new procedures were posted in the reception area.
With respect to whether Watson, Klis, Fix, Haren, and Geis-
ter are supervisors, Frank testified that he worked on Watson’s
crew which did pipeline work for Shaw, Inc.; that Watson
would tell him and other employees what work to do on the
job; that he overheard Watson assign laborers to bulldozers and
loaders; that he worked on Klis’ crew and Klis assigned him
jobs; that he overheard Klis assigning operators to operate
equipment; that he has worked on Fix’s crews which handle
plastic and steel pipe; that Fix assigned him to work, including
operating a bulldozer; that he overheard Fix assign both opera-
tors and laborers; that Watson, after talking with Steuer wrote
up Kevin Hibner for smashing the side of a Shaw truck; that he
worked on Haren’s crews and Haren assigned him work; that
he overheard Haren assign operators and welders to do certain
jobs; that on one occasion Haren sent Jason Goden home for
the day when Goden was sitting down and playing with a torch;
that he has worked on Geister’s crews; that Geister assigned
him from one job to another and he overheard Geister assign
tasks to laborers and operators; that the foremen told him that
Robb and Steuer had the authority to discipline him; that the
foremen, who had forms, could write the employees up; that he
overheard Kevin Hawley ask Watson to leave work early and
Watson immediately told him he could; and that Watson did
not use his CB radio before telling Hawley that he could leave
work early.

William Boone (GC Exh. 2B); William Nolan (GC Exh. 2C); Charles
Bartholomew (GC Exh. 2D); Michael Bartholomew (GC Exh. 2E);
David Beebe (GC Exh. 2F); David DaVos (GC Exh. 2G); Robert Peters
(GC Exh. 2H); and Michael Adrianse (GC Exh. 8).
37 Lucas testified that he tries to keep the circle that he does not go
beyond within 1 hour of Atlanta.
38 Houghton Lake appears to be approximately 75 miles from At-
lanta and East Jordan appears to be between 50 and 60 miles from
Atlanta.
On December 15, Fix quit Shaw, Inc. He testified that he
began working for the Company in February 1995 as a pipeline
foreman; that he had fusers, operators and pipe stringers on his
crew of between 4 and 12 employees; that he reported to Robb
or Lucas; that he would be assigned a crew and when they got
to the jobsite he would tell each person what to do while they
were there for the day; that he could give employees written
reprimands without first discussing the matter with Robb; that
he had writeup sheets and if he was having a problem with
somebody, he could talk to Lucas or Robb and decide whether
to give the employee time off or put them on another crew; that
he and Robb gave some employees time off when they did not
follow instructions and they had to have the truck they were
using pulled out after it got stuck; that he could give a repri-
mand without checking with anyone else; that Robb told him
that if he was having a problem with someone he could send
them home of give them time off but he would have to check
with him or Lucas before doing that; that Robb gave him disci-
pline slips to use in giving discipline; that it was his under-
standing that Robb decided which crew somebody would go
on; that employees could work for Shaw, Inc. or Rapid or if the
S & R people did not have enough work they would work on
the pipeline or on a roustabout crew; that Lucas or Robb could
come out to the job once a day but there were times when they
skipped a day or two; that they would stay on the jobsite for 20
minutes to an hour if all was going all right;39 that the other
foremen were Watson, Haren, Klis, and Geister,40 that the crew
assignment sheet changed daily; that Ron Shaw told him that he
would receive a 401(k) plan if he stayed with Shaw, Inc. long
enough; that if he thought that an employee should be fired he
would have speak with Lucas or Robb; that it was his recom-
mendation that the employees who did not follow instructions
and had to have their truck pulled out receive time off and
Robb went along with the recommendation; that eventually his
job was eliminated and he became a roustabout employee; that
he made an effort when he was a foreman to see that the labor-
ers worked equally by rotating them; that he never filled out a
reprimand form; that if he had a technical problem in the field
he would contact Robb and Robb would come out to the site
and try to resolve the problem; that he did not have an office at
Shaw, Inc.; that Robb had an office and Steuer and Ancel
shared an office and these people had weekly meetings that he
and the other foreman were not invited to; that he was paid by
the hour and he received overtime for hours over 40; that he
believed that “everybody” had the same health insurance but he
really did not know; that he recommended against an employee
getting a raise but he did not know if the employee received the
raise; and that he could authorize an employee to leave the job
early but if the employee wanted to take off for one half of the
day he, Fix, would have to speak to Robb.

39 Lucas, who is the operations manager of Shaw, Inc., testified that
Robb and Steuer would touch base with their crews in the field once or
twice a day and they would remain at the jobsite for 10 minutes to 1 or
2 hours.
40 Lucas testified that Foremen Klis, Geister, Watson, Haren, and Fix
all have the same authority over employees and all perform about the
same kind of work; and that the foremen tell the welders what they
want done.
SHAW, INC. 373
Klis, who as noted above is a foreman at Shaw, Inc., testified
that before becoming a foreman he was an operator at Shaw,
Inc,; that operators are eligible to participate in a 401(k) plan
the same as foremen; that the foremen’s health coverage is the
same as that which the operators have; that as foreman his du-
ties are “[j]ust make sure that everybody knows what they are
doing all day long, make sure we got enough stuff to do for the
next day”; that he can have from two to ten people on his crew
depending on what his crew is doing that day; that as foreman
he does not have authority to hire, fire, transfer employees from
one crew to another crew, layoff, promote, or give raises; that
he finds out who is assigned to his crew when Robb or Steuer
gives him the list at the beginning of the workday; that he re-
ports to Steuer and Robb; that Steuer and Robb come to the
jobsite from two to six times a day and he can call them from
the jobsite by radio; that when there are problems with employ-
ees in his crew he tells Steuer or Robb; that Robb and Steuer do
not ask him what should be done to the employee in terms of
discipline; that he has filled out an accident report involving an
employee (GC Exh. 66(I);41 that if an employee asks for time
off he asks Robb or Steuer unless it involves only 30 to 60
minutes; that when he was hired Lucas was aware of the fact
that he was a member of the Engineers Local 324; that he made
$11.50 an hour as an operator for Shaw and he makes the same
amount as a foreman for Shaw; that he has authorized employ-
ees to take a pickup truck home when they work late; that he
does change assignments of members of his crew; that the one
time when he had a problem with the production of an em-
ployee he spoke to the employee and when the employee did
not “straighten up” he told Steuer; that he does not choose to
carry corrective action notices in his truck; that when he went
to work for Shaw he took a withdrawal from the union, he did
not fill out any slip or card but he told his union representative
who allegedly said he would take care of it; that he drives to the
jobsites and he assigns another employee to drive; that he fills
out his own time ticket and the time tickets for the employees
on his crew; and that employees do not normally fill out their
own time tickets but in a situation where he has left the job and
an employee works all night that employee fills out his own
time ticket. On rebuttal, Cobe sponsored General Counsel’s
Exhibits 77(a) through (e) which refer to Klis’ union member-
ship and the question of whether he withdrew from the Union.
Geister, who as noted above is a foreman at Shaw, Inc., testi-
fied that before becoming a foreman he was an operator at
Shaw, Inc,; that he participates in a 401(k) plan; that he is cov-
ered under his wife’s health insurance plan; that he does not
have an office, is paid hourly and does not have authority to
hire, fire, transfer employees from one crew to another crew,
layoff, promote, or give raises; that he finds out who is assigned
to his crew when Robb or now Joe Ellie gives him the list at the
beginning of the workday; that the supervisors come to the
jobsite periodically throughout the day and he can call them
from the jobsite by radio; that when he has a problem with an
employee he discusses it with the supervisors who handle the

41 Klis signed the form in the box designated “Supervisor Signature”
along with Robb. Klis testified that he also filled out an accident report
for a Phillippe, whose last name he did not know.
problem; that if employees ask for time off he tells them to
speak to the supervisors; that he has filled out an accident re-
port for workers’ compensation; that supervisors ask him how
an employee is doing when they are considering whether to
give the employee a raise, “I mean they do take a certain
amount of our input because we’re out there with the workers
every day”; that supervisors come out to the jobsite periodically
throughout the day and it varies depending on the job; that
Steuer comes out to the jobsite sometimes once a day and
sometimes up to four times a day and he spends perhaps 2
hours a day; and that even when he is not asked he will tell
supervisors if he thinks an employee is doing a good job and
deserves a raise.
Watson testified that as a foreman he gets the same benefits
that the rest of the “hands” get; that he is eligible for the 401(k)
plan and he has health care; that he does not have an office, is
paid hourly and does not have authority to hire, fire, transfer
employees from one crew to another crew, layoff, recall, pro-
mote, or give raises; that he can make a recommendation to
promote or give an employee a raise and he has recommended
raises in the past; that he finds out who is assigned to his crew
when Robb or now Ellie gives him the list at the beginning of
the work day; that the supervisors come to the jobsite once or
twice a day and he can call them from the jobsite by radio; that
when he has a problem with an employee, he tries to talk to
them and if that does not work, then he writes them up accord-
ing to the Shaw handbook; that he signed the corrective action
notice received as General Counsel’s Exhibit 64(q) in the su-
pervisor’s box because he witnessed the occurrence and he did
not talk to anyone before he filled out the form; that he signed
on the line designated “Originated By” on the employee termi-
nation slip received herein as General Counsel’s Exhibit 64(y)
because Robb told him to fill out the form; that he filled out the
corrective action notice received herein as General Counsel’s
Exhibit 64(nn) because Lucas told him to write the employee
up for damaging a Shaw truck42; that he filled out and signed
the corrective action notice received herein as General Coun-
sel’s Exhibit 64(pp) writing “[r]ule calls for discharge. Rec-
ommending discharge” after the involved employee walked off
the job without permission and without telling anyone;43 that he
did not know if the employee who walked off the job was later
fired or he just never came back; that he filled out and signed
the corrective action notice received herein as General Coun-
sel’s Exhibit 64(vv) noting on the form “Left to Supervisor
RW;”44 that he filled out the pertinent portions and signed the
corrective action notice received herein as General Counsel’s
Exhibit 64(ppp) because the involved employee was not doing
what he was being told to do;45 that he filled out part of the

42 Watson signed the form in the supervisor’s box.
43 Watson signed the form in the supervisor’s box.
44 Watson signed the form in the supervisor’s box.
45 Watson wrote that the incident involved p. 15 of the handbook
which refers to “[f]ailure to follow orders and or instructions of a su-
pervisor or insubordination of any kind.” In the corrective action sec-
tion of the form Watson wrote “left to supervisor.” Although Watson
signed the form on the line for supervisor that word is crossed out and
“Foreman” is written in. Watson testified that he asked the employee
to lift the end of a pipe up into a fusing machine. Subsequently, Wat-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD374
corrective action form received herein as General Counsel’s
Exhibit 66(xxx), crossed out “Supervisor” and wrote in “Fore-
man” on the line he signed, and drafted the form because the
employee failed to follow orders and instructions;46 that he has
completed accident reports when someone is injured out on the
job; that when an employe wants time off he decides whether
he needs them and then he speaks to Steuer; that he did not
testify that he can recommend promotions;47 that he has asked
that a number of employees receive a raise and he knew of
quite a few who received raises; that sometimes the people he
recommends for a raise did not receive one; that if an employee
wants to take time off he speaks to Steuer; that he can let em-
ployees go home early; and that he makes a judgement call
regarding whether someone is doing the best they can and if
they are not he sometimes gives them a verbal warning. Wat-
son also testified that every working morning he attends a
meeting in the foremens’ room where they discuss what is
needed on the job, if they, the foremen, have spare men who
cannot be put to work and should be taken off their crew and
sometimes he names the person who should be taken off the
crew, and he asks for extra people when he needs them and
sometimes they are given to him and sometimes they are not.
Accident reports where Watson signed in the supervisor signa-
ture box were received as General Counsel’s Exhibits 68, 69,
and 70.
Ancel, who is a supervisor of Rapid River for the directional
drilling crew, testified that he is salaried; that he has an office
in the Shaw, Inc. and Rapid River building; that he goes to the
jobsites a minimum of once a day; and that the foremen who
work under him can reach him by mobile phone, pager, home
phone, and the radio in his truck.
Steuer, who indicated that he was currently employed at
Kimron Resources as a field supervisor who primarily works
for Shaw, Inc., testified that he receives a salary; that he did not
receive any additional benefits when he became a supervisor;
that he tries to spend 1 hour a day at the jobs that he supervises;
that he shares an office with Ancel; and that when an employee
wants to take a day off either the employee asks him or the
foreman asks.
Drumb testified that when a foreman gives him instructions,
as did Fix when Drumb was involved in getting a truck stuck,
he tries to comply with the instructions.
Lucas testified that he, Duane Kundinger, Robb, and Kirk
Parker have their own offices and Ancel and Steuer share an
office.48
By letter dated July 31, counsel for the General Counsel ad-
vised Ronnie Shaw that the General Counsel intended to move
to name Kimron Resources, Inc. as a single and/or joint em-

son testified that he drafted GC Exh. 64(ppp) because the employee
refused to stay and work late.
46 Only the involved employee and Watson signed the form. In the
corrective action taken portion of the form the following appears:
“Sent Home Early, (1 Day w/o pay), up to supervisors’s discretion.”
Watson testified that he was not sure who wrote this. Also, he did not
know who wrote “Failure to follow orders and instructions” on the
form.
47 This contradicts testimony he gave earlier, as set forth above.
48 Lucas sponsored a diagram of the Atlanta facility, R. Exh. 22.
ployer with Shaw, Rapid, and S & R and to amend the involved
consolidated complaint accordingly (GC Exhs. 59(a) though
(c)).
Kundinger, who works for Kimron Resources (Kimron),49
testified that Ron Shaw owns 70 percent of the stock in Kimron
and his wife, Kim, owns the remaining 30 percent; that Ron
Shaw owns 70 percent of the stock in Shaw and his wife owns
30 percent; that Ron Shaw owns 50 percent of Rapid, Lucas
owns 45 percent of Rapid and he owns 5 percent of Rapid; that
Ron Shaw owns 25 percent of S & R and Jeff Critchfield,
Royce Thomas and Don Tinker each own 25 percent; that Kim-
ron became active as a business corporation in January 1994;
that he worked for Shaw, Inc. before he worked for Kimron;
that the business purpose of forming Kimron was to make it
easier to handle the administration of the labor pool, the pen-
sion plan and the billing of customers of Shaw, Rapid, and
S & R; that Ron Shaw owns 33 percent of the stock in Skinner
Corporation, 33 percent of the stock in Sunrise Equipment, Inc.,
and 100 percent of the stock in Alpine Rental (Alpine); that
Kimron handles the preparation of the payroll checks for all of
the employees of all of the aforementioned businesses, except
for some part-time employees of Alpine; that since 1994 Kim-
ron has been identified as the employer of record for purposes
of State and Federal tax payments for all of the employees of
all of these businesses with the exception of the aforementioned
employees of Alpine;50 that in January 1994 the Michigan Em-
ployment Security Commission, private insurance companies
and worker’s compensation insurance were requested to
change their records to identify Kimron as the employer of
record with respect to the employees of the aforementioned
companies, except the part-time employees of Alpine; that
Kimron does not have its own office or its own employees who
work for it vis-a-vis Shaw, Rapid, or S & R; that Kimron util-
izes the facilities of Shaw, Inc. and Kimron does not own its
own equipment; that his salary is allocated between Shaw,
Rapid, and S & R; that other than being the unified payroll
name and managing fringe benefits, Kimron does not perform
any service for any other company; that Kimron does not inde-
pendently charge anything for the aforementioned service that
it performs; that the payroll checks are written on Kimron but
the funds are transferred from Shaw, Inc., Rapid, and S & R;
that Kimron does not pay rent to Shaw, Inc.; that he and a pay-
roll clerk, Candice Lucas, prepare the payroll checks and her
paycheck is drawn on the account of Kimron; that this payroll
clerk works under his direction alone; that the hours for Shaw,
Inc, Rapid, and S & R are maintained by the foremen and they
are submitted to Kimron by the supervisors; that Kimron pre-
pares and forwards invoices to the customers of Shaw, Inc.,

49 Kundinger testified that he also works for Shaw, Inc., Rapid, S &
R, Sunrise Equipment, Inc., and Skinner Corporation; that he is the
chief financial officer for Shaw, Rapid, and S & R; that he is an officer
of Sunrise Equipment and owns 33 percent of the stock in that com-
pany; and that he is the treasurer of Shaw, Inc. and Rapid.
50 The General Counsel introduced a number of documents, GC
Exhs. 60(a) through (jj), which show Kimron to be the employer of
record with respect to many, if not all, aspects of the employment of the
involved employees. GC Exh. 60(n), which is dated “3/8/96” was
signed by Watson in the box designated “Supervisor Signature.”
SHAW, INC. 375
Rapid, and S & R; that the customers pay Shaw, Inc., Rapid,
and S & R; that the tax payments and unemployment allocation
for the employees are paid by Kimron with funds transferred by
the various entities; that Shaw, Inc. owns the equipment which
Kimron utilizes; and that the personnel files are maintained by
Kelly Latos who works under his direction and supervision and
who is paid by Kimron with funds transferred from Shaw, Inc.
Counsel for the General Counsel introduced a number of
documents relating to the issue of Kimron’s status (GC Exhs.
66(a) through (jjjj)). He also indicated that some of the docu-
ments bear the signature of Watson and relate to the issue of his
supervisory status under the Act.
The General Counsel introduced, as General Counsel’s Ex-
hibits 64(a) through (ttt), copies of corrective actions, repri-
mands, disciplines, and termination slips dated during the pe-
riod from February 3, 1994, through February 23, 1996. Wat-
son signed some of these documents as “Supervisor.” It is
noted that on one signed by Watson on January 5, 1996, the
word “Supervisor” is crossed out and “Foreman” is written in.
It is noted that what seems to be the signature of Robb appears
just below the signature of Watson and this signature is dated
“1/22/96.” It is not apparent who made the change in the des-
ignation of “Supervisor.” It is noted that on forms dated Janu-
ary 8, 1996 (GC Exh. 64(q)), and January 9, 1996 (GC Exh.
64(vv)) the designation of “Supervisor” was left on the form
under Watson’s signature. Watson signed one of the termina-
tion slips (GC Exh. 64(y)), on the line designated “Originated
By” and dated his signature “6–30–95.” What seems to be the
signature of Robb appears on the line designated “Approved
By” on the form. It appears that the involved employee volun-
tarily left Shaw, Inc. because he did not agree with a wage cut
and being relieved of operator status.
The position statements of Shaw, Rapid, and S & R were re-
ceived herein as General Counsel’s Exhibits 74, 75, and 76,
respectively. The General Counsel argues that there are incon-
sistencies between the position statements and the reasons
given by Lucas for not hiring certain of the applicants.
B. Analysis
Before getting to the merits, certain procedural matters must
be resolved. Respondents have filed a Motion to file a Reply
Brief, submitting therewith a two-page brief the purpose of
which is to correct two alleged mistakes in the General Coun-
sel’s brief. Counsel for the General Counsel then filed a Mo-
tion to Strike Respondent’s Reply Brief and a Motion to Strike
portions of Respondents’ posthearing brief. Subsequently,
Respondents filed a Motion to Strike General Counsel’s Motion
to Strike and a Response Thereto. The record has been re-
viewed and no reliance is placed on any proposed finding of
fact which is not supported by the record. In view of this, there
is no need to grant any of the motions and they all are denied.
As noted above, the parties have stipulated that Shaw, Rapid,
and S & R constitute a single-integrated business enterprise and
can be treated as a joint and single employer for purposes of the
allegations contained in the complaint herein. Also as noted
above, the General Counsel’s motion to amend the complaint to
include Kimron as a Respondent was granted. The General
Counsel, on brief, argues that given the interrelationship of the
operations of all Respondents, common management, common
ownership, and financial control, and especially the centralized
control of labor relations, it is clear that Kimron is a single
employer with Shaw, Rapid, and S & R, Canterbury Educa-
tional Services, 308 NLRB 506 (1992); Hydrolines, Inc., 305
NLRB 416 (1991); and Glover Bottled Gas Corp., 275 NLRB
658 (1985). On brief, Kimron contends that it is not a joint or
single employer with Respondents; that it does not meet the
Board’s jurisdictional amount; that the amendment was beyond
the statute of limitations; that during the relevant time period,
the summer of 1995, it was only the employer for payroll and
tax purposes; that it does not have any income, profit, property,
or employees of its own; and that it processes paperwork and
the other entities make all of the decisions with respect to hir-
ing, firing, disciplining, supervising, or directing the employ-
ees. As pointed out by the Board in Hydrolines, Inc., supra at
417 :
[t]he Board applies four criteria in determining whether sepa-
rate entities constitute a single employer. These criteria are:
(1) interrelation of operations, (2) common management, (3)
centralized control of labor relations, and (4) common owner-
ship or financial control. No one of the four criteria is con-
trolling nor need all be present to warrant a single-employer
finding. The Board has stressed that the first three criteria are
more critical than common ownership, with particular empha-
sis on whether control of labor relations is centralized, as
these tend to show “operational integration.” NLRB v. Al
Bryant, Inc., 711 F.2d 543, 551 (3d Cir. 1983), and cases cited
therein. “[S]ingle employer status depends on all the circum-
stances of the case and is characterized by absence of an
‘arm’s length relationship found among unintegrated compa-
nies.’” Id. Accord: Hahn Motors, 283 NLRB 901 (1983).
[Footnotes omitted.]
As pointed out by the General Counsel, Kimron, Shaw, Rapid,
and S & R are all engaged in a common business venture, they
share the same space and support staff, Ron Shaw and his wife
Kim own all of the stock of Kimron and Shaw and Ron Shaw
owns 50 percent of Rapid’s stock and 25 percent of S & R’s
stock, Ron Shaw is an officer of Kimron, Shaw, and Rapid
River, and Kim is an officer of Kimron and Shaw. Ron Shaw
has a high profile with regard to labor relations in all four enti-
ties in that he has approved wage increases and he spoke to the
involved employees about the Union, Lucas, who reports to
Ron Shaw, does all of the hiring for all of the entities, Robb
makes out daily work schedules for Shaw, Rapid, and S & R,
personnel files of the involved employees are maintained to-
gether under the direction and control of Kundinger with the
assistance of an employee who is paid with funds transferred
from Shaw, Kundinger is also the chief financial officer of
Shaw, Rapid, and S & R and the treasurer of Shaw and Rapid,
Kundinger checked on the insurance problems of the involved
employees at the direction of Ron Shaw, Kimron’s name ap-
pears on internal documents relating to employees of Shaw,
Rapid, and S & R such as employment applications and repri-
mand forms, Kimron holds itself out as the employer of the
involved employees to Federal and State agencies and the pub-
lic at large, and Kimron’s employee handbook which is closely
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD376
akin to Shaw’s was reviewed for approval by both Kimron and
Shaw personnel and is binding on the employees of Shaw,
Rapid, and S & R. Respondents have set Kimron up as the
employing entity. Even Steuer testified that he was employed
by Kimron. Kimron pays the involved employees and it has
become the employer of record. In these circumstances, the
General Counsel has demonstrated that Shaw, Rapid, S & R,
and Kimron constitute a single employer within the meaning of
the Act.
The complaint alleges that named foremen51 are supervisors
within the meaning of the Act. On brief, the General Counsel
contends that it is clear that Shaw’s foremen are supervisors
within the meaning of the Act in that they routinely issue both
written and oral disciplines to employees on their own, when
they discuss disciplinary matters with a superior, their version
of the incidents were accepted without question and their rec-
ommendation followed, they allow employees to leave work
early and take longer breaks, they use independent judgement
and discretion in assigning work to employees, they receive
higher wages and enjoy the use of a company truck not gener-
ally available to other employees, and the employees regard the
foremen as their supervisors. Respondents, on brief, argue that
the foremen do not perform any traditional assignment which
would qualify them as supervisors within the meaning of the
Act; that any secondary duties which they might perform are
purely routine in nature and not sufficient to support supervi-
sory status; that there is no direct evidence that any of the al-
leged foremen have independently hired or fired an individual
or independently issued discipline; that the foremen work as-
signments are, at best, of a routine and nondiscretionary nature
which require little or no independent authority; that foremen
identify employee misconduct and bring it to the attention of
the field supervisors; that, as Fix testified, the designation of
those acting as operators and fusers was always made by Robb
on the daily assignment sheet; that all foremen are paid hourly,
making about 50 cents an hour more than operators and $5
more than laborers; that the superiors of the foremen are sala-
ried; that foremen do not have offices; that foremen are pro-
vided with a company pickup truck but operators are occasion-
ally provided with a pickup truck; that foremen do not have the
authority to hire, fire, transfer employees from crew to crew,
lay off employees, promote employees, give employee raises,
or to independently issue discipline to employees; that what
little discipline the foremen undertake is based on the handbook
and done only after prior consultation with a supervisor; that
with respect to time off, the foremen testified to nothing more
than the routine and limited ability to allow employees to leave
the site a half hour early when the work had been completed
and there was no further need to have them on the site and even
then the foremen routinely cleared the request with a supervi-
sor; that while foremen would occasionally convey an em-
ployee’s request for a raise or on their own identify a person
who should receive a raise, no recommendations were sought
from the foremen nor were any given; and that the foremen do

51 Fix, Watson, Klis, and Geister. As noted above, Lucas testified
that Foremen Klis, Geister, Watson, Haren, and Fix all have the same
authority over employees and all perform the same kind of work.
not exclusively control the work performed by their crew in
that they are closely monitored by supervisors who spend a
significant amount of time at the work sites.
Section 2(11) of the Act defines “supervisor” as an individ-
ual who has
[A]uthority 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
action, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.52
The statutory indicia quoted above are in the disjunctive and
only one need exist to confer supervisory status on an individ-
ual if that power is exercised with independent judgment on
behalf of management, and not in a routine or clerical manner.
Individuals with statutory supervisory authority do not lose
their status simply because they infrequently exercise their
authority.
In my opinion the involved foremen are supervisors as that
term is defined by the Act. They drive to and from work in
company vehicles, a perquisite which is not enjoyed by the
rank-and-file employees, except in unusual circumstances such
as working very late and then the use of a company truck is
authorized by a foreman or a superior.53 Upon their arrival at
work the foremen participate in a meeting in the foremen’s
room with Robb and they indicate to Robb what their man-
power needs are, who they can do without that day if they have
too many people on their crew at the time, and if they need
additional people on their crew. Robb ultimately decides who
will be on the crews and he drafts the assignment sheet which,
among other things, indicates the makeup of the crews. Rank
and file employees do not attend the meetings in the foremens’
room. After the foremen round up their crews they go to the
jobsite. Watson testified that he drives one truck and he assigns
an employee to drive a company truck which, among other
things, is used to transport employees to the jobsite. Once at
the jobsite the foreman tells the employees what to do on the
job, sometimes assigning laborers to use the bulldozer or a
loader, telling operators what to do and, according to Lucas,
telling the welders what he, the foreman, wants done. The
foremen has forms and could write an employee up for doing
something wrong or for not doing something he was supposed
to do. As Fix testified, he could give an employee a written
reprimand without first checking with anyone. Also as Fix
testified, Lucas or Robb could come to the job once a day but
there were times when they skipped a day or two. Robb did not
testify and although Lucas testified he did not specifically deny
this testimony of Fix.54 The foremen were left in charge at the

52 29 U.S.C. subsec. 152(11) (1982).
53 Watson alluded to past use of company vehicles by employees but
he was unable to provide specifics. In view of his denial that he tesi-
fied that he recommended the promotion of employees when he did I
am hesitant to rely on this unsupported assertion.
54 It is noted that while Klis testified that Steuer and Robb come to
the jobsite from two to six times a day, former Shaw employee Hoff-
man, who worked on the crews of Watson, haren, Garcia, Geister, and
SHAW, INC. 377
jobsite. They were responsible for seeing that the crews were
accomplishing what was expected. The supervisors who had
offices at the Shaw facility performed a planning, agenda, over-
sight and troubleshooting function in that they visited the site to
make sure things were progressing as they planned and ex-
pected. If there was a problem that the foreman did not feel
confident handling, he could contact the supervisors at the of-
fice in their trucks or at home. As Watson initially testified he
did recommend promotions. Watson and at least one other
foremen testified that they recommended raises for employees
and as Watson testified, quite a few received raises. The fore-
men let employees leave the jobsite early. In one instance,
Watson recommended that an employee be discharged for
walking off the job without permission. The employee did not
come back to work at Shaw. And when Ancel testified about
the above-described July 10 truck ride he testified that Watson
“directed” one of his laborers to accompany them so that he
could drive the truck back. On brief, Respondents indicate that
Watson “selected” Frank. Ancel and Steuer were present.
Their supervisory authority is admitted by Respondents. Yet
neither one of them directed Frank to accompany them. It was
foreman Watson who “directed” Frank to accompany them and
return the truck. The foremen exercise independent judgment
on behalf of management and they do not function in a routine
manner. Under the circumstances existing here the foremen, in
my opinion, are supervisors.
Taking the last of the unfair labor practice allegations first,
paragraph 27 of the complaint alleges that on or about March
13 and continuing to date, Respondents have maintained a dis-
tribution rule which prohibits distribution of literature on Re-
spondent’s property at any time. The General Counsel con-
tends, on brief, that Respondents’ no-distribution rule is obvi-
ously a violation because it forbids distribution anywhere on
Respondents’ property, MTD Products, Inc., 310 NLRB 733
(1993). On brief, Respondents argue that no testimony was
presented as to the rules unlawful enforcement, “[t]here was no
evidence that employees were prevented from looking at litera-
ture during nonworking time,” “the unions were allowed to
distribute literature at Shaw’s facility without harassment or
interruption” and the fact that this policy was in Shaw’s hand-
book long before the events at issue here prevents any inference
that it constituted evidence of active antiunion animus during
the summer of 1995. The following appears in Shaw’s hand-
book (GC Exh. 11):
. . . UNIONS
SHAW, INC. firmly believes that in order to be suc-
cessful, we must serve the needs of both our employees,
and our customers.
It is our firm belief that these goals can best be
achieved in a non-union company.
. . . .
. . . SOLICITATION AND DISTRIBUTION GUIDELINES

Fix, testified that two or three times a week a “boss other than . . . [his]
foreman” would come to the jobsite and usually stay 10 or 15 minutes.
(a) Engaging in any form of solicitation or canvassing
of any kind during working time at any company location
or area is not permitted.
(b) The distribution of literature on company property
at any time is not permitted.
As pointed out by the Board in MTD Products, supra, a no-
distribution rule such as the one involved here is, on its face,
overly broad in that it is not restricted to working time and it,
therefore, is presumptively unlawful, Our Way, Inc., 268 NLRB
394 (1983). The Board has pointed out, however, that the em-
ployer can avoid the finding of a violation by showing through
extrinsic evidence that its rule was communicated or applied in
such a way as to convey an intent clearly to permit, as here
pertinent, distribution during breaktime or other periods when
employees are not actively at work. Respondents have not
make this showing in that they failed to adduce any evidence
that they told employees that distribution during nonworking
time was permitted. Nor did Respondent show that it know-
ingly tolerated distribution by employees during nonworking
time. The fact, as pointed out by Respondents, that there was
no evidence that employees were prevented from looking at
literature during nonworking time is not on point in that the rule
in question speaks to employees distributing not employees
reading. Respondents’ assertion that the Unions were allowed
to distribute literature at Shaw’s facility without harassment or
interruption also misses the point. Again, the rule speaks to
employees distributing. Additionally, the testimony that the
union business representatives were not on Respondents’ prop-
erty when they gave out handbills on July 11 was not refuted.
As noted above, Cobe testified that they were on the public
property right of way by the entrance to Shaw. Respondents
have not shown that they knowingly tolerated distribution by
employees in nonwork areas during nonworktime. Accord-
ingly, in my opinion Respondents have failed to show that the
rule meant anything other than what it says, viz., all distribution
on company property at any time is prohibited. Respondents
violated the Act as alleged in this paragraph of the complaint by
maintaining an overly broad rule against distribution.
Paragraph 16 of the complaint alleges that on or about March
6, and continuing to date, Respondents have failed and refused
to hire or consider for hire named qualified job applicants seek-
ing employment with Respondents because of their member-
ship in or affiliation with the Charging Parties. The General
Counsel on brief, contends that Respondents’ asserted reasons
for refusing to hire any of the Engineers, Laborers, and Pipefit-
ters who applied defy logic and are clearly disparate from the
manner in which it treated other applicants; that while Respon-
dents claim that the Engineers applicants lived too far from
Atlanta to be considered, they hired Frank even though his
application lists Pennsylvania as his residence; that when appli-
cants, including McDonald, telephoned Shaw after submitting
their applications they were given the “run around”; that Re-
spondents’ reliance on the fact that a portion of the application
was not filled out by union applicants is misplaced for the form
itself indicates that this portion should not be completed and
applicants other than the union applicants were hired even
though they did not complete the portion of the application in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD378
question; that Respondents manipulated and varied their stated
hiring policies by holding union applicants to different stan-
dards than required of other applicants; that it is no accident
that not one of the 40 union applicants who applied at Shaw
was not hired; that Respondents will not hire anyone, no mater
how skilled, no matter how qualified, no matter how experi-
enced if the applicant is a member of a construction trades un-
ion; that the sheer numbers themselves evince a discriminatory
motive, Cedar Falls Health Care Center, 276 NLRB 1300,
1302 (1985); that ignoring applicants with obvious experience
and instead hiring employees whose work experience is at best
only tangentially related to Respondents’ work also adds an
inference of illegal motive, Shortway Suburban Lines, Inc., 286
NLRB 323, 326 (1987); that a prima facie case is established
by the General Counsel proving (1) that the applicants were
members of or supported a union and respondent had knowl-
edge of this activity; (2) that the alleged discriminatees applied
for employment; and (3) that Respondents had antiunion ani-
mus, Lewis Mechanical & Metal Works, 285 NLRB 514
(1987); that there is no doubt that Respondents knew the al-
leged discriminatees in this case were union members because
most wrote voluntary union organizer on their applications and
others, like Mcdonald and Chapman, wore clothing bearing
union logos and/or their work histories established their union
connection; and that here the General Counsel has made a
strong prima facie case and with Respondents’ weak, and shift-
ing defense it is clear that the discriminatees were not hired by
Respondents because of their union membership and antici-
pated activity, United Technologies Corp., 310 NLRB 1126
(1992). Respondents, on brief, contend that the General Coun-
sel has failed to establish a prima facie case of discrimination in
that he has failed to prove that Shaw has any animus toward
union applicants and he has failed to prove that the union mem-
bers were bona fide applicants; that the General Counsel’s fail-
ure to call the “applicants” to testify, especially in light of sig-
nificant evidence that this is a manufactured case, prohibits a
finding that these individuals were bona fide applicants; that the
unions were responsible for devising a scheme intended to
snare a law-abiding company in a trap and the orchestration of
this scheme denies the individuals who participated in it the
right to maintain they were not hired because of that scheme;
that certain of the applicants are not bona fide because they did
not complete their applications, they did not follow up on their
applications and they did not participate in the hearing herein;
that even assuming each applicant was bona fide, there was still
no violation of the Act because the individuals hired, if any,
were more qualified than the union applicants; that the Laborers
use of an altered employment application omitting critical at-
testation as to the truth and agreement to abide by Shaw’s rules
and policies legally prevents the applications from being con-
sidered equal to others upon which hiring decisions were based;
that such facially incomplete, often unsigned and altered appli-
cations should, as a matter of law, be found to be inadequate to
find any inference of discrimination due to their rejection, Flor
Daniel, Inc., 311 NLRB 498 (1993); and Waco, Inc., 316
NLRB 73 (1995); that the fact that the laborers also sought
“scale” or $13.46 an hour when Shaw only pays $6 an hour is
another legitimate reason for rejection;55 that not only were the
Laborers’ applications incomplete but Barrett testified that he
was notified of this when he submitted them; that not only are
the laborer applicants not bona fide but they are also inferior to
those applicants who were hired; that an employer can lawfully
reject applicants who do not follow or comply with its legiti-
mate hiring criteria; that it is only where the applications of
those rejected are at least as good as those hired that any infer-
ence of discrimination arises; that there is no evidence that
either Paul Gavin or Glen Huey applied and the General Coun-
sel produced no application nor did he call either to testify that
he had in fact submitted an application; that Chapman’s appli-
cation did not contain any reference to voluntary union organ-
izer, Lucas did not see Chapman when he applied and the refer-
ence to “union scale” is not sufficient to infer knowledge of
Chapman’s union membership; that Shaw did not have an ap-
plication for Wheeler, it cannot be liable for not hiring someone
whose application it did not have for whatever reason so long
as its absence was not intentional, it has not been shown that
Shaw intentionally destroyed any application and Wheeler can-
not pursue any remedy because he failed to contact Shaw to
follow up on his application; that the omission of an employ-
ment record is conclusive evidence that the application was not
complete and there was no discrimination in the Company’s
failure to hire; that the planned submission of incomplete appli-
cations calculated to cause rejection prevents these individuals
from being considered bona fide applicants, Bay Control Ser-
vices, 315 NLRB 30 (1992); that there was no discrimination
with respect to the pipefitters and welders because Shaw did
not hire either; that the welders and pipefitters were not seeking
labor positions and even if they were, Shaw’s policy against
hiring overqualified applicants may be applied to welders and
pipefitters regardless of their union affiliation; that there is no
violation of Section 8(a)(3) for failing to consider or hire appli-
cants when there were no job openings; that Shaw does not hire
any welders; that given Shaw’s long work hours, the driving
time and the fact that Shaw’s wages are half (or less) of the
wages these operators receive on union jobs, there is no basis
for a finding that they would have accepted long-term, indefi-
nite duration employment as operators for Shaw; that Mcdonald
was rejected because he did not operate the dozer or excavator
at the skill level required by Shaw and for no other reason; that
Hooker’s contacts with Shaw were indisputably contrived in
that where a skilled individual decides to abandon his skill in
order to get hired for menial labor, the legitimacy of the offer
must be questioned; that the operators hired by Shaw were
more qualified than the union applicants; that Shaw considers
more recent applications first; and that the absence of a letter
from Cobe after July supports the conclusion that the operators
were not interested in employment with Shaw after August 14
and any operator hired by Shaw after that date would not be
similarly situated to the operators’ applicants.

55 Wireways, Inc., 309 NLRB 245 (1992). The General Counsel
speculated on brief that perhaps one of the reasons Shaw insists in its
application form on the rate someone expects is to identify higher paid
union members.
SHAW, INC. 379
The General Counsel has established a prima facie case. As
indicated by the Board in Flor Daniel, Inc., 311 NLRB 498
(1993):
In Wright Line, 252 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir.1981), cert. denied 455 U.S. 989 (1982),
[Approved in NLRB v. Transportation Management,
Corp., 462 U.S. 393 (1983).] the Board set forth its test for
cases alleging violations of the Act turning on employer
motivation. First, the General Counsel must make a prima
facie showing sufficient to support the inference that pro-
tected conduct was a “motivation factor: in the em-
ployer’s action. The burden then shifts to the employer to
demonstrate that the same action would have taken place
notwithstanding the protected conduct. It is also well set-
tled, however, that when a respondent’s stated motives for
its actions are found to be false, the circumstances may
warrant an inference that the true motive is an unlawful
one that the respondent desires to conceal. The motive
may be inferred from the total circumstances proved. Un-
der certain circumstances, the Board will infer animus in
the absence of direct evidence. That finding may be based
on the Board’s review of the record as a whole. [Foot-
notes omitted.]
Most of the applications at issue contained the words voluntary
union organizer or words to that effect. Those which did not
were submitted under circumstances which would put the Re-
spondents on notice that the applicant was union affiliated. Not
one of the 40 applicants at issue was offered a position. Re-
spondents’ union animus is established by the conclusions
reached above and below. Respondent offered what it claims
are business justifications for not hiring the 40 involved appli-
cants. According to the person who made the decisions,56 Lu-
cas, McDonald was not hired because he scored low in the test
he was given. On the one hand, we have McDonald testifying
that, after the test, Lucas said that he did a good job.57 On the
other hand, we have Lucas initially testifying that he did not
recall saying anything to McDonald after the test. Then Lucas
testifies that he probably asked McDonald if he was interested
in working as a laborer. Lucas does not specifically deny tell-
ing McDonald that he would get back to McDonald in 2 or 3
weeks. In its position statement (GC Exh. 74), Shaw, Inc. took
the position that “[w]ith regard to . . . McDonald, Shaw had no
knowledge of his union affiliation.” On brief, Respondents
state, “[w]hile he did not complete the application, he did attach
to his application a complete and professionally prepared re-
sume. This resume indicated his experience with the operating
engineers.” Also, Respondents do not deny that each time that
McDonald telephoned and went to Shaw, Inc. to inquire about
the status of his application he was told come back or call in 2

56 As noted above, except for a period beginning in mid-summer of
1995 when Robb decided which laborers to hire, Lucas made all of the
diecisions with respect to who was hired. Robb did not testify at the
hearing herein.
57 McDonald testified that he was sure after looking at his affidavit
to the Board, which was given 5 months after the conversation, that
Lucas said a good job and not a fairly good job as McDonald had ear-
lier testified.
or 3 weeks. McDonald’s testimony is credited. He lived within
the area prescribed by Lucas, there could be no reasonable con-
cerns with the way he filled out his application, and so accord-
ing to Lucas here he went beyond the application and location
and applied a subjective test to this applicant. Other operators
were hired after McDonald submitted his application.58 One,
Keith Sharbeneau, submitted an application after McDonald
and the employment history portion of the application (GC
Exh. 65(1)), reveals little about this applicant vis-à-vis McDon-
ald’s rather thorough resume. But on brief, Respondents argue
that Sharbeneau, who lives about 15 miles further form Atlanta
than McDonald, was not hired on that basis alone. Rather,
according to Respondents on brief notations on his application
demonstrates that he was given a subjective test on the excava-
tor and bulldozer and he was the one who scored the “4” and
the “5,” respectively. Lucas testified that the numbers were his
grade scale and “yes” it appeared that Sharbeneau applied in
March and he gave him a test as well. Strangely when he testi-
fied later that same day, just 28 pages later in the transcript,59
he answered, “I can’t remember,” when the General Counsel
asked, “[d]o you remember if you tested anybody other than . . .
McDonald.” It appears that Shaw took another approach in that
according to General Counsel’s Exhibit 67, which is a list of
those hired by Respondents which list was provided to the
General Counsel by Respondents, Waicek is listed as a laborer.
Yet he testified that he was promised that he would be an op-
erator, Indeed after working for 2 days as a laborer he was
given a dozer to operate. He left on July 10 when he was in-
formed that he would have to go back to doing laborer’s work.
Boone, who lives about 50 miles from Atlanta, was not hired
because, according to the testimony of Lucas, Boone wrote
negotiable on the rate of pay requested line and Boone worked
at one job for 8 months and he worked at another job for 5
months. Boone’s application indicates that he left both of these
jobs because there was a lack of work. And the lack of work
occurred in December on one of the jobs and in November on
the other job listed.60 Surely a reasonable person in this line of
work would understand that outside work slows down in the
winter. Surely a reasonable person would not hold against an
applicant that over which the applicant has no control. There
was no reason other than Boone’s union affiliation for not con-
sidering him for hire.
Respondents stress the importance of the location of the ap-
plicant’s residence in terms of its proximity to Atlanta. It is
noted that of the 40 applicants the application of the one who
lives in Atlanta, Wheeler, is missing, the application of another
who lives 30 miles from Atlanta, Freel, is missing, the applica-
tion of another who lives in the same location as Lucas, Hage—
who lives in Gaylord, is missing, and Lucas testified that he had
no specific recall of his decision not to hire Chapman, who

58 On brief, Respondenets cite one other instance where an operator,
according tonotations on his application, GC Exh. 65(i), was given a
test on the excavator and the dozer. The notation on the application
reads “EXC-4, DOZER-5.” As noted above, Lucas gave McDonald the
lowest possible score on both the excavator and the dozer.
59 Tr. 2374 and 2402.
60 As pointed out by Respondents, there is an overlap in the dates for
the two jobs listed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD380
lives about 25 miles from Atlanta.61 As noted above, Wheeler
testified that he indicated on the application that he was a
member of the Laborers and that he was seeking scale wages,
Freel testified that he indicated on his application that he was
seeking “Union scale,” Hage testified that he wrote voluntary
union organizer on his application, and Chapman, who believed
that he was wearing a jacket with a union logo on it when he
submitted his application, also wrote “union scale” on the line
asking for the rate of pay expected.62 Shaw, Inc., not only did
not consider for hire these 39 applicants63 it appears that it took
those measures which it believed were necessary to obviate the
need to even consider those applicants who resided close to it.
It is too much of a coincidence to have all of these applications,
the applications of those who live close to it disappear. The
record contains testimony of not only the applicants but, in the
case of Hage, the testimony of someone who saw Hage submit
the application to Shaw, Inc. In these circumstances the wit-
nesses who testified that they submitted the applications which
Respondents now claim that they do not have are credited.64
While it appears that Respondents do not hire welders, Lucas
did testify that he considers operator applicants for laborer’s
positions. No explanation was given why he did not accord the
same treatment to the involved pipefitter and welder applicants.
Certain of the language in the application form is ambiguous
if not misleading. In these circumstances, the fact that certain
of the applicants did not fill out portions of the application is
understandable. In my opinion Respondents violated the Act as
alleged in the involved complaint in refusing to hire or consider
for hire Danny McDonald, Michael Adrianse, John Birgy, Jeff
Bergkamp, John Hoos, Wayne Weeks, Rick Stemkowski, Steve
Stemkowski, Robert Jackowiak, William Deemer, Michael
Hage, Richard Konieczny, Brian Golden, Ross Hart, William
Nolan, Charles Bartholomew, Michael Bartholomew, David
Beebe, William Boone, David DeVos, James Hooker, Robert
Peters, Chad Chapman, Lee Wheeler, and Ronald Freel. These
applicants are bona fide applicants. Respondents have not
shown that they had a business justification for refusing to hire
or consider for hire these 25 job applicants. Respondents have
failed to meet their Wright Line burden of demonstrating that
they would have taken the same action in the absence of the
union affiliation of these 25 applicants.

61 After looking at chapman’s application, GC Exh. 10, Lucas testi-
fied that Chapman had an unstable past work history in that of the three
employers that Chapman listed, he worked for two for 1 month each
and he worked for the third for 3 months. The application indicates that
this laborer in all three instances was laid off.
62 The case cited by Respondents on brief for the proposition that us-
ing “union scale” is not sufficient to infer knowledge of union affilia-
tion, B E & K Construction Co., 321 NLRB 561 (1996), is distinguish-
able for there the Board pointed out that it was agreeing with the ad-
ministrative law judge in that proceeding because in that case wage
rates were not a clear guide in that a union contractor was paying less
than two union employers in the same area.
63 Actually in my opinion there are 39 applications in that Gary Wat-
son did not fill out an application.
64 Since Gavin and Huey did not testify and since no one testified
about them submitting applications, there is no evidence of record upon
which to conclude that they did in fact submit applications.
The Barrett group of applications (GC Exhs. 36 through 48),
concern me for a number of reasons. First, in my opinion one
of the applications was filled out by someone other than the
individual who purportedly filled out the application. This
places in issue the credibility of Barrett who testified that the
individuals filled out the applications in his presence. Second,
Barrett was told when he submitted the applications that they
were not complete and he did nothing,65 Third, the copy of the
application form used was missing a portion of the normal ap-
plication form used by Respondents. And fourth, most of the
applicants in this group did not sign the certification at the bot-
tom of the application. In these circumstances I do not believe
that Respondents violated the Act in refusing to hire or consider
for hire the Barrett group of applicants for, in my opinion, Re-
spondents had a business justification for refusing to consider
these applications.
Paragraph 18 of the complaint alleges that on or about June
20 Ron Shaw threatened that if their employees became repre-
sented by the Charging Parties, Respondents would lose work,
Respondents would reduce their work force and employees of
Respondents would work less hours, and he promised to look
into the possibility of providing a better insurance plan and the
alternative of a choice between a picnic, a bonus, or a jacket in
order to dissuade the employees from supporting the Charging
Parties. On brief, the General Counsel contends that all of Re-
spondents’ witnesses except Ron Shaw agreed that the June 20
meeting was about the Unions; that even Ron Shaw finally
admitted the union was discussed at the meeting as were the
adverse effects of a union on Shaw, Inc.’s business; and that
Respondents violated the Act when Ron Shaw threatened that
Respondents would lose work and Terra would not pay union
scale, he made an implicit promise to provide better insurance,
he threatened to cut the work force, he implicitly threatened
that Shaw, Inc. would not get Terra work if the employees were
union, he threatened futility by indication he would not pay
union scale, and he promised employees a jacket, a picnic, or a
bonus at the meeting. Respondents, on brief, argue that health
insurance was the reason the meeting was called; and that no
one but Frank recalled Ron Shaw saying that Terra had been
sold and Shaw, Inc. would be getting all their work or saying
anything about arbitrating with the union or about Shaw, Inc.
refusing to pay union scale.
In my opinion, Respondents violated the Act as alleged in
paragraph 18 of the complaint as amended. Respondents argue
that no activity took place prior to June 20 that would lead Ron
Shaw to address employees about possible unionization other
that the submission of applications. As noted above, some of
the applications had voluntary union organizer at the top. Pi-
cola wrote Ron Shaw requesting him to open the lines of com-
munication with respect to Shaw, Inc. becoming a union con-
tractor.
Additionally, Cobe had written Ron Shaw advising him that,
among other things, if Shaw, Inc. failed or refused to fairly and

65 Some of the applications are not signed on the line which certifies
that the application was completed buy the applicant and that all entries
on it and information in it are true and complete to the best of the appli-
cant’s knowledge.
SHAW, INC. 381
nondiscriminatorily consider the May 15 applicants for em-
ployment, he would bring this to the attention of the Board.
And on June 16 Cobe wrote Shaw requesting him to continue to
keep active the employment applications of named members of
the Engineers. The only barometer of why Ron Shaw held the
meeting on June 20 that we have available is what Ron Shaw
said at this meeting and what he may have said at the foremens’
meeting immediately preceding his meeting with the employees
en masse. As set forth above, Frank testified that Ron Shaw
introduced himself and spoke of the pros and cons of Shaw,
Inc. becoming a union shop, employee Hoffman testified about
Ron Shaw making statements about the ramifications of un-
ionization, former Foreman Fix testified about Ron Shaw talk-
ing about the ramifications if a union came in, Foreman Geister
testified that the meeting was a meeting concerning becoming a
union company and Ron Shaw said that the reason that they
were meeting was to talk about the Union, and Watson testified
that Ron Shaw was talking about the union “wanting in.” Ron
Shaw had not held an en masse employee meeting since the
preceding Christmas and he would not hold another en masse
employee meeting until Christmas 1995. Ron Shaw did not
hold the June 20 meeting to take 80 employees’ time to tell
them that there were some problems 2 months ago with the
medical insurance, he did not know why they occurred but the
employees should not be concerned. Respondents argue that
nothing about unionization happened which would have moti-
vated Ron Shaw to hold a meeting on June 20 to discuss un-
ionization. More accurately, nothing about medical insurance
had occurred at that time which would have motivated Ron
Shaw to take worktime of 80 employees to discuss medical
insurance. The problem with the two employees occurred
months before and the nonexplanation of the insurer was given
weeks (or possibly one week according to Ron Shaw) before.
Perhaps the foremen, in testifying that the purpose of the meet-
ing was to discuss the union, were relying not only on what
they heard in the meeting with the 80 employees but also on
what Ron Shaw said to them in the foremen’s room before he
addressed the employees that morning.
Paragraph 18(a) alleges that at the June 20 meeting with the
employees Ron Shaw threatened that Respondents would lose
work if their employees became represented by the Charging
Parties. Respondents argue that this allegation is founded on
the uncorroborated testimony of Frank, except for the corrobo-
ration regarding Ron Shaw saying that Terra would not give
Shaw, Inc. “as much work” because the union fees would be
too high. Fix testified that Ron Shaw said that Terra said if
Respondents were unionized, Terra was not going to have
Shaw, Inc. work for it. Fix also testified that Ron Shaw said
that if Shaw, Inc. became unionized, there would not be as
much year round work. Ron Shaw’s testimony about the pur-
pose of the meeting is not credited. His testimony about not
saying anything about the Union affecting the amount of work
is not credited. Ron Shaw was not even capable of conceding
that he discussed Terra Energy at this meeting notwithstanding
the fact that it is Shaw, Inc.’s major customer and at least two
witnesses testified that he discussed Terra at this meeting. Ron
Shaw threatened a loss of work. He also threatened a reduction
in the work force [par. 18(b) of the complaint]. Ron Shaw’s
denial on this point is not credited. Frank’s testimony is cred-
ited on this point. As noted above, Hoffman testified that Ron
Shaw said that if they let the union in a lot of people would not
have jobs, Geister testified that Shaw may have said we may
have to downsize, and Watson testified that Ron Shaw said
something about people would be cut on jobs because it would
take work from us in that Shaw would not be able to underbid
competitors, And finally, Hoffman’s testimony that Ron Shaw
said that the employees would work less hours [par. 18(c) of
the complaint] if Respondents became unionized is credited.
Ron Shaw was not a credible witness and if he had specifically
denied saying this, his denial would not be credited. But it does
not appear that he specifically denied this testimony.
Respondents argue that speculation as to the reaction of a
third party to the Company’s unionization is explicitly permit-
ted, NLRB v. Gissel Packing Co., 395 U.S.575 (1969); Good-
year Tire & Rubber, 312 NLRB 674, 700 (1993); J.M.A. Hold-
ings, 310 NLRB 1349, 1354, 1359 (1993). As set forth above,
Ron Shaw testified, as here pertinent, that someone at the meet-
ing asked his opinion on whether or not the company would be
union and he replied that most of their work is time and mate-
rial work and most of the union jobs are bid jobs; that he did
not specifically mention any primary customers; that he did
mention that about 90 percent of their work was time and mate-
rial versus bid work; that he did not say anything about how
being union would affect the amount of work he would get; and
that Terra Energy was not mentioned at this meeting. Ancel, an
admitted supervisor of Respondents, testified that he remem-
bered that Terra was not discussed at this meeting. So on the
one hand, Respondents now argue that Ron Shaw did not men-
tion a third party. On the other hand, since to this extent it suits
their needs, Respondents, in effect, argue that if the statements
were made, they referred to Terra which is the third party.66
This is the argument notwithstanding the fact that Respondents
do not concede on brief that a third party was even mentioned
by Ron Shaw. Consequently, one must wonder if a party is
precluded from asserting such a defense when it denies the
basis of such a defense. In other words, how can one conclude
that the prediction was “carefully phrased on the basis of objec-
tive fact to convey the employer’s belief as to demonstrably
probable consequences beyond his control,” NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969), when the employer is
incapable of admitting that the statement was made? Respon-
dents violated the Act as alleged in paragraphs 18(a), (b), and
(c) of the complaint.
Paragraph 18(d) of the complaint alleges that Ron Shaw
promised to look into the possibility of providing a better insur-
ance plan if their employees were not represented by the Charg-
ing Parties. Respondents argue, on brief, that Frank is the only
witness to make the connection between the discussion of in-
surance and the union; that the employer is free to explain its
benefits and suggest that the union could not do better, Atlantic
Forest Products, 282 NLRB 855 (1987); and that when no

66 At p. 96 of their brief, Respondents indicate “[a] violation of
8(a)(1) only occurs if the company has control over the ‘threatened’ act.
Ron Shaw has no control over whether or not Terra continued to con-
tract with Shaw.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD382
cards had been signed and no petition for an election had been
filed the employer is free to tell employees that it will look into
making changes in benefits or to even increase or improve in-
surance benefits, Troxel Co., 301 NLRB 270 (1991). Frank,
Geister, and Watson testified about Ron Shaw telling the as-
sembled employees that he would look into getting better insur-
ance. Picola’s May 1 letter to Ron Shaw was an attempt to
have Shaw, Inc. take the first steps to become a union contrac-
tor, Additionally, a number of individuals had submitted appli-
cations to Shaw, Inc. indicating that they were voluntary union
organizers. And as Respondents indicate at page 95 of their
brief “[i]t is undisputed that the Operators’ submission [a group
of eight applications which were headed with voluntary union
organizer], accompanied by all its pomp and circumstance [in-
cluding the use of a videotape camera], made quite a splash.”
As noted above, as Foreman Geister testified, the purpose of
the June 20 meeting was to talk about the Union and as Fore-
man Watson testified Ron Shaw was talking about the Union
coming in. In these circumstances, it was a violation of the Act
for Ron Shaw to indicate to the assembled employees that he
would look into getting better insurance. Troxel Co., supra, is
not on point for there the effort to obtain improved insurance
benefits was embarked upon long before the advent of the un-
ion and continued on an unbroken course of action which indi-
cated that the implementation would have taken place at the
scheduled time notwithstanding the Union. Respondents vio-
lated the Act as alleged in paragraph 18(d) of the complaint.
Paragraph 18(e) of the complaint alleges that on or about
June 20 at Respondents’ Atlanta facility, Respondents by their
agent, Rom Shaw, promised employees the alternative of
choice between a picnic, a bonus or a jacket in order to dis-
suade them from supporting a union.67 Respondents, on brief,
argue that the Company had offered jackets and picnics to the
employees in the past and there is absolutely no testimony that
the reference to the choice of bonus, jacket or picnic was re-
lated in any way to the Union. As noted above, Foreman Geis-
ter testified, the purpose of the June 20 meeting was to talk
about the Union and as Foreman Watson testified Ron Shaw
was talking about the Union coming in. In these circumstances,
Ron Shaw violated the Act when for the first time he offered a
bonus. Respondents violated the Act as alleged in paragraph
18(e) of the complaint.
Paragraph 19 of the complaint alleges that on or about June
20 Watson threatened that employees hired within the previous
6 months would lose their jobs if the employees became repre-
sented by the Charging Parties. As noted above, Frank testified
that Watson said at the June 20 meeting that anyone hired in the
last 6 months would probably lose their job and Watson denied
making this statement. The following appears on page 2157 of
the transcript herein:

67 The General Counsel’s motion to amend the complaint in this re-
gard was granted because what Ron Shaw said during this meeting with
employees was already a subject of the complaint and in view of the
fact that there was a continuance Respondents had sufficient time to
prepare for this matter.
Q. [BY COUNSEL FOR GENERAL COUNSEL] Now you
[Watson] said that you can recommend promotions. Have
you done that?
MS. LATARTE: Your Honor, I don’t believe that he
ever said that. I believe it’s a mischaracterization of his
testimony.
THE WITNESS: I’ve never said I can recommend it.
The following, which covers testimony given earlier the same
day, appears on page 2123 of the transcript:
Q. Do you [Watson] have any authority to promote
employees?
A. No. I can make a recommendation, is all.
Frank’s testimony on this point is credited.68 As concluded
above, in my opinion the involved foremen are supervisors.69
Respondents violated the Act as alleged in paragraph 19 of the
complaint.
Paragraph 20 of the complaint alleges that on June 20 at Re-
spondents’ facility Klis threatened that Respondents’ employ-
ees would not receive pay for travel time to a job site or be
provided transportation to jobsites if the employees became
represented by the Charging Parties, and he coercively interro-
gated employees regarding their support for the Unions. As
noted above, Frank testified that Klis said that on union jobs the
employees have to provide their own transportation to the job
site and they do not get paid for driving time. At the time Re-
spondents were providing company transportation to and from
the jobsite and the employees were paid for the driving time.
Foreman Haren did not deny Hoffman’s testimony that he,
Haren, said the Union “ain’t worth a darn” and if the union got
in, the employees would have to drive their personal vehicles to
and from the johsite. Hoffman’s testimony is credited on this
point. There is no evidence of record that anyone, other than
Steuer himself, heard the sanitized version of this threat that
Steuer allegedly uttered. Frank’s testimony is credited. Klis’
denial must be weighed in the light of the fact that at least one
other foreman was making basically the same threat. Perhaps
the points to be made were formulated in the foremens’ room
before the meeting with the assembled employees. This is
something totally within the control of the Respondents and to
threaten to take it away if the Respondents become unionized is
a violation of the Act. On the one hand, we have Frank testify-
ing that Klis asked him what he thought of unions and Klis
saying that he had some experience with a union and it was
bad. On the other hand, we have Klis testifying that he does
not recall asking Frank what he thought of the Union, he might
have talked to Frank about the Union but he did not remember
and “[i]f we asked him maybe just sitting there at lunchtime
talking about the Union or something, but as far as asking him,

68 The fact that Hoffman did not hear Watson making this statement
could be due to the fact that Hoffman was not in a position in the room
where he could hear what Watson said.
69 As the General Counsel points out on brief, absent a finding that
the foremen are supervisors, their statements remain violation of the
Act because they were all made in the presence of Ron Shaw and other
admitted supervisors, who never attempted to refute or disavow the
illegal conduct, A.M.F.M. of Summers County, 315 NLRB 727 (1994).
SHAW, INC. 383
no I wouldn’t.” “Wouldn’t” and shouldn’t do not add up to
“did not.” Klis equivocated, his testimony is not credited.
Frank’s testimony on this point is credited. At page 103 of
their brief Respondents argue that such questions are of a gen-
eral nature and implied absolutely no threat and “Frank, an
undercover union organizer, obviously was not bothered by the
question.” The cases cited by Respondents are not on point in
that it was not shown that Frank initiated this conversation,
Frank was not an open and active union supporter, and this
interrogation occurred after a meeting at which Respondents
demonstrated their antiunion animus. The test is not a subjec-
tive one. Rather the question is whether under all the circum-
stances the interrogation reasonably tends to restrain, coerce, or
interfere with the rights guaranteed by the Act. Blue Flash
Express, 109 NLRB 591 (1954). I conclude that it did. Re-
spondents violated the Act with this interrogation. Klis, in my
opinion, is a supervisor.70 Respondents violated the Act as
alleged in paragraph 20 of the complaint.
Paragraph 21 of the complaint alleges that on or about June
20 Fix coercively interrogated employees regarding their union
sympathies. On the one hand, we have Frank testifying that
after the meeting while at Shaw’s facility Fix asked him and
employee Mike Maynard what they thought of Unions. On the
other hand, we have Fix testifying that he did not recall asking
anyone on his crew what they thought of the Union. Frank’s
testimony is credited. Fix does not specifically deny that he
engaged in the conduct at issue. The best that Fix could come
up with was that he did not recall such conduct. Counsel on
both sides of this issue chose to ask the question in terms of
recall. Notwithstanding the fact that one of the counsel for
Respondents tried to equate something not happening with the
witnesses best recollection that it did not occur such is not the
case. To fully remove the possibility, the witness could have
been asked, “[D]id you engage in this conduct.” If the witness
answers, “no,” then we have an unequivocal denial. If the wit-
ness answers in terms of recall, then we still have him conced-
ing that it is possible that such conduct occurred but he does not
recall it when he is testifying. Fix, a supervisor, engaged in the
unlawful interrogation.71 For the reasons given in the next
preceding paragraph such conduct violates the Act. Respon-
dents violated the Act as alleged in paragraph 21 of the com-
plaint.
Paragraph 22 of the complaint alleges that on or about June
27 Ancel threatened (1) employees that Respondent Shaw
would close its doors if a union came in, and (2) offered a
monetary reward for employees to engage in surveillance of
other employee’s union activities and/or to report union adher-
ents to the Respondents. As noted above, the General Counsel
has moved to amend the complaint to include an allegation that
Ancel threatened Beaty and Allman, if they are not supervisors,
with the loss of work it the Unions came in, The motion, which
was made on the last day of the hearing herein, is based on the
prior day’s testimony by Ancel on direct that Beaty and Allman
asked him what he thought of the union’s presence, which tes-
timony was followed up by the General Counsel on cross-

70 Id.
71 Id.
examination, eliciting the above-described alleged Ancel re-
sponse. Since I have concluded that the involved foremen are
supervisors, the General Counsel’s motion is denied. The re-
maining allegations in this paragraph are based on the testi-
mony of Frank. Such testimony is credited. Ancel testified that
he did not remember having a conversation with anyone at the
involved johsite in June 27 and he did not remember an em-
ployee named Waicek. Ancel also denied saying on June 28
that Shaw would close its doors or anything about suspecting a
union informer and offering $200 for union informers. The
allegations in the complaint regarding these matters speak to
June 27 and not June 28. Ancel’s testimony about June 27, and
his denial about closing and a reward is not credited. His at-
tempt to bolster Ron Shaw’s denial regarding mentioning Terra
during the June 20 meeting hurt his credibility.72 And his “do
not remember” testimony regarding (1) his June 27 conversa-
tion and (2) Waicek is not credible. Waicek remembers having
a conversation with Ancel on June 27, the first day Waicek
worked for Respondents. As pointed out by the General Coun-
sel on brief, the testimony of Waicek, who was called by Re-
spondents, does support the specifics of Frank’s testimony that
he approached them while they were talking, that Ancel stated
that Shaw needed operators and Ancel asked Waicek if he
knew of any operators. But notwithstanding Waicek’s testi-
mony, this occurred on June 28. Waicek did testify that during
his June 28 conversation with Ancel he did not say that Shaw
would close its doors and Ancel did not offer a reward to any-
body who would turn in a union informer. This occurred on
June 27. Denying that it occurred on June 28 serves no valid
purpose. If Waicek’s testimony were to be interpreted to mean
that Ancel as alleged in the complaint did not make these
statements on June 27, then his testimony is not credited.
Waicek asked Ancel about the union. Ancel may not have
known about Waicek’s connection to Robb and Ancel may
have overreacted to the question. After he had an opportunity
to check with Robb or Lucas he had a candid conversation with
Waicek the next day regarding operators. Or possibly Ancel
knew Waicek’s connection to Robb on the first day and there-
fore he was willing to be candid with him. Frank’s testimony
regarding what occurred on June 27 is credited. Respondents
violated the Act as alleged in paragraph 22 of the complaint.
Paragraph 23 of the complaint alleges that on or about June
28 Ancel informed employees that union members would not
be employed by Respondents because of their association with
the Charging Party Operating Engineers. Frank testified that he
overheard Ancel ask Waicek if he knew of anybody who was
looking for work as an operator, Waicek say no and ask Ancel
why, and Ancel say that Shaw needed operators because the
only applications that they had on hand were those of union
members. Ancel denied this conversation. While Waicek testi-
fied that Ancel did tell him that he needed operators, as noted
above, he described this conversation as occurring on June 27
and he testified that Ancel did not say anything about the union

72 It does not appear that his situation on June 20 was the same as
Hoffman’s in that Ron Shaw was addressing all of the employees and
the foremen, when they apparently spoke to certain employees, may not
have been heard by all of the employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD384
in either the June 27 or 28 conversation. As Chief Judge Hand
pointed out in NLRB v. Universasl Camera Corp., 179 F.2d
749, 754 (2d Cir. 1950):
It is no reason for refusing to accept everything that a witness
says, because you do not believe all of it; nothing is more
common in all kinds of judicial decisions than to believe some
and not all.
Waicek’s testimony, to the extent that he testified that he had a
conversation with Ancel about Shaw needing operators, is cred-
ited. Such a conversation occurred. Waicek did not appreciate
the significance of his concession to the General Counsel on
this point. Waicek’s testimony about nothing being said about
the union in the conversation is not credited. Waicek appreci-
ated the significance of such a concession. Frank’s testimony
regarding this allegation of the complaint is credited. Ancel
was not a credible witness and to the extent that the testimony
of Waicek could be relied on it supported Frank. Although
Frank did not initially take this threat seriously the test is not a
subjective one but rather an objective one. Respondents vio-
lated the Act as alleged in paragraph 23 of the complaint.
Paragraph 24 of the complaint alleges that on or about July
10 Ancel, Watson, and Steuer threatened union adherents with
unspecified adverse action and violence. As noted above, Wat-
son testified that he did not recall saying if the union individu-
als came back he would run them over but it is possible that he
said this (anything is possible). Ancel testified that he did not
believe that Watson said he would run over union supporters.
And Steuer testified that he did not remember Watson saying
anything about trying to run over union members. Frank testi-
fied that Watson said he would run the “mother fuckers” over.
So on the one hand, we have unequivocal testimony and on the
other hand, we have Watson testifying that it is possible that he
said it and the best his two fellow supervisors can assert is that
they do not believe or remember that which Watson testifies it
is possible he said. Frank’s testimony is credited. The conver-
sation occurred exactly as described by Frank. To the extent
that the three supervisors denied engaging in conduct which
violates the Act, their testimony is not credited. Respondents
violated the Act as alleged in paragraph 24 of the complaint.
Paragraph 17 of the complaint alleges that on or about July
12, Steuer and Watson assigned employee Drumb to another
work crew because of his support for the Charging Parties.
Foreman Geister testified that he observed Drumb take abuse
from a foreman about his, Drumb’s support for the union; and
that when Drumb took the handbill from the union handbillers
on the way to work he, Geister, overheard Watson say, “well
there’s a union guy.” Watson testified that he did not recall if
he saw Drumb take a union handbill. Also he testified he did
not remember he did not recall and it was not possible the he
asked Steuer to have Drumb transferred off his crew but Steuer
or Robb would be the person to speak to about this. Frank
testified that after Drumb took the union handbill he talked
about union wages. Frank did not work on July 12. It appears
that he is mistaken about his dates. As pointed out by Respon-
dents’ records, Drumb worked on Watson’s crew on July 13
and he worked on Geister’s crew on July 14. Respondents’
records show that Frank did work on July 14 and, therefore, he
would have been there on the morning of July 14 to overhear
what Watson said about getting Drumb transferred off his,
Watson’s, crew. The complaint reads on or about July 12.
Respondents violated the Act as alleged in paragraph 17 of the
complaint.
Paragraph 25 of the complaint alleges that on or about July
12 Steuer and Watson informed employees that another em-
ployee was being reassigned to another work crew because of
that employee’s support for the Charging Parties. While Wat-
son and Steuer testified that they never told any employees that
someone was being assigned to another crew because they sup-
ported the union, an employee or employees overhearing Wat-
son asking Steuer to have Drumb reassigned on the morning of
July 14 because he felt Drumb was a union man accomplishes
the same thing. Respondents violated the Act as alleged in
paragraph 25 of the complaint.
Paragraph 26 of the complaint alleges that on or about July
24 Geister created the impression of surveillance of employees’
union activities. As noted above, Frank testified that Geister
said that Ron Shaw was in town and he was looking for the
union man. Geister testified that he did not tell employees
about Ron Shaw looking for a union man and that he never
specifically said that Ron Shaw was in town and he was look-
ing for a union man. I have relied on certain of the testimony
of Geister above and to some this may mean that, therefore, this
Geister testimony must be credited or my reliance on other of
his testimony will be undermined. As pointed out above, in
NLRB v. Universasl Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950), Chief Judge Hand wrote:
It is no reason for refusing to accept everything that a witness
says, because you do not believe all of it; nothing is more
common in all kinds of judicial decisions than to believe some
and not all.
Within weeks of this statement (August 22) Frank found his
tires slashed while he vehicle was parked at Shaw’s facility.
Frank testified that when he told Robb, Robb (a) asked him if
he had any enemies that he knew of; (b) said that it looks like
he did and maybe he should go home and take the rest of the
day off and think about what he was doing; and (c) was chuck-
ling or laughing at him. Robb did not testify and, therefore,
Frank’s testimony regarding this conversation is not chal-
lenged. If one concludes that this means that by August 22
Respondents determined that Frank was the union informer,
then the question is when did Respondents initially make this
determination. Did Respondents make this determination be-
fore the above-described July 10 truck ride? Did Respondents
make this determination before Ancel’s June 27 and 28 state-
ments? Were Respondents supervisors, without considering the
legal ramifications, attempting to rattle Frank? It is not neces-
sary to resolve these matters. I find Frank to be a credible wit-
ness. Geister was not willing to concede wrongdoing on his
part. Geister’s denial is not credited. As concluded above, in
my opinion Geister is a supervisor. Respondents violated the
Act as alleged in paragraph 26 of the complaint.
SHAW, INC. 385
CONCLUSIONS OF LAW
1. The Respondents are employers engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the Act.
2. The Unions are labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondents violated Section 8(a)(1) of the Act by:
(a) Threatening that Respondents would lose work if their
employees became represented by the Charging Parties.
(b) Threatening that Respondents would reduce their work
force if their employees became represented by the Charging
Parties.
(c) Threatening that Respondents would work less hours if
their employees became represented by the Charging Parties.
(d) Promising to look into the possibility of providing a bet-
ter insurance plan if their employees were not represented by
the Charging Parties.
(e) Promising employees the alternative of choice between a
picnic, a bonus, or a jacket in order to dissuade them from sup-
porting a union.
(f) Threatening that employees hired within the previous 6
months would lose their jobs if the employees became repre-
sented by the Charging Parties.
(g) Threatening that Respondents’ employees would not re-
ceive pay for travel time to a jobsite or be provided transporta-
tion to jobsites if the employees became represented by the
Charging Parties.
(h) Coercively interrogating employees regarding their sup-
port for the Unions.
(i) Coercively interrogating employees regarding their union
sympathies.
(j) Threatening employees that Respondent Shaw would
close its doors if a union came in.
(k) Offering a monetary reward for employees to engage in
surveillance of other employee’s union activities and/or to re-
port union adherents to the Respondents.
(l) Informing employees that union members would not be
employed by Respondents because of their association with the
Charging Party Operating Engineers.
(m) Threatening union adherents with unspecified adverse
action and violence.
(n) Informing employees that another employee was being
reassigned to another work crew because of that employee’s
support for the Charging Parties.
(o) Creating the impression of surveillance of employees’
union activities.
(p) Maintaining an overly broad rule that prohibits the distri-
bution of literature on company property at any time.
4. The Respondents violated Section 8(a)(3) and (1) of the
Act by:
(a) Failing and refusing to hire or consider for hire certain
qualified job applicants seeking employment with Respondents
because of their membership in or affiliation with the Charging
Parties, namely Danny McDonald, Michael Adrianse, John
Birgy, Jeff Bergkamp, John Hoos, Wayne Weeks, Rick Stem-
kowski, Steve Stemkowski, Robert Jackowiak, William
Deemer, Michael Hage, Richard Konieczny, Brian Golden,
Ross Hart, William Nolan, Charles Bartholomew, Michael
Bartholomew, David Beebe, William Boone, David DeVos,
James Hooker, Robert Peters, Chad Chapman, Lee Wheeler,
and Ronald Freel.
(b) Assigning employee Drumb to another work crew be-
cause of his support for the Charging Parties.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
6. Except as found herein, Respondents otherwise have not
been shown to have engaged in conduct violative of the Act as
alleged in the complaint.
REMEDY
Having found that Respondents engaged in certain unfair la-
bor practices, I shall recommend that they be ordered to cease
and desist therefrom and that they take certain affirmative ac-
tion set forth below to effectuate the policies of the Act.
It having been found that the Respondents unlawfully failed
and refused to hire or consider for hire certain qualified job
applicants seeking employment with Respondents because of
their membership in or affiliation with the Charging Parties,
namely Danny McDonald, Michael Adrianse, John Birgy, Jeff
Bergkamp, John Hoos, Wayne Weeks, Rick Stemkowski, Steve
Stemkowski, Robert Jackowiak, William Deemer, Michael
Hage, Richard Konieczny, Brian Golden, Ross Hart, William
Nolan, Charles Bartholomew, Michael Bartholomew, David
Beebe, William Boone, David DeVos, James Hooker, Robert
Peters, Chad Chapman, Lee Wheeler, and Ronald Freel, it is
recommended that Respondents offer them employment and
make them whole for any loss of earnings they may have suf-
fered by reason of the Respondents’ discriminatory refusal to
consider them for hire
Other considerations regarding the remedy and the specifics
of the relief granted must wait until the compliance stage of the
proceeding as indicated in Dean General Contractors, 285
NLRB 573 (1987). See also Ultrasystems Western Construc-
tors, 316 NLRB 1243 (1995).
Upon the foregoing findings of fact and conclusions of law,
and on the entire record, I issue the following recommended73
ORDER
The Respondents, Shaw, Inc., Rapid River Enterprises, Inc.,
S & R Cable, Inc., Kimron Resources, Inc., a Single Employer
and/or Joint Employers, Atlanta, Michigan, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening that Respondents would lose work if their
employees became represented by the Charging Parties.
(b) Threatening that Respondents would reduce their work
force if their employees became represented by the Charging
Parties.
(c) Threatening that Respondents would work less hours if
their employees became represented by the Charging Parties.

73 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD386
(d) Promising to look into the possibility of providing a bet-
ter insurance plan if their employees were not represented by
the Charging Parties.
(e) Promising employees the alternative of choice between a
picnic, a bonus, or a jacket in order to dissuade them from sup-
porting a union.
(f) Threatening that employees hired within the previous 6
months would lose their jobs if the employees became repre-
sented by the Charging Parties.
(g) Threatening that Respondents’ employees would not re-
ceive pay for travel time to a jobsite or be provided transporta-
tion to jobsites if the employees became represented by the
Charging Parties.
(h) Coercively interrogating employees regarding their sup-
port for the Unions.
(i) Coercively interrogating employees regarding their union
sympathies.
(j) Threatening employees that Respondent Shaw would
close its doors if a union came in.
(k) Offering a monetary reward for employees to engage in
surveillance of other employee’s union activities and/or to re-
port union adherents to the Respondents.
(l) Informing employees that union members would not be
employed by Respondents because of their association with the
Charging Party Operating Engineers.
(m) Threatening union adherents with unspecified adverse
action and violence.
(n) Informing employees that another employee was being
reassigned to another work crew because of that employee’s
support for the Charging Parties.
(o) Creating the impression of surveillance of employees’
union activities.
(p) Maintaining an overly broad rule that prohibits the distri-
bution of literature on company property at any time.
(q) Failing and refusing to hire or consider for hire certain
qualified job applicants seeking employment with Respondents
because of their membership in or affiliation with the Charging
Parties, namely Danny McDonald, Michael Adrianse, John
Birgy, Jeff Bergkamp, John Hoos, Wayne Weeks, Rick Stem-
kowski, Steve Stemkowski, Robert Jackowiak, William
Deemer, Michael Hage, Richard Konieczny, Brian Golden,
Ross Hart, William Nolan, Charles Bartholomew, Michael
Bartholomew, David Beebe, William Boone, David DeVos,
James Hooker, Robert Peters, Chad Chapman, Lee Wheeler,
and Ronald Freel.
(r) Assigning an employee to another work crew because of
his support for the Charging Parties.
(s) 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) Rescind Respondents overly broad rule that prohibits the
distribution of literature on company property at any time.
(b) Make whole Danny McDonald, Michael Adrianse, John
Birgy, Jeff Bergkamp, John Hoos, Wayne Weeks, Rick Stem-
kowski, Steve Stemkowski, Robert Jackowiak, William
Deemer, Michael Hage, Richard Konieczny, Brian Golden,
Ross Hart, William Nolan, Charles Bartholomew, Michael
Bartholomew, David Beebe, William Boone, David DeVos,
James Hooker, Robert Peters, Chad Chapman, Lee Wheeler,
and Ronald Freel for any losses they may have suffered by
reason of the Respondents’ discriminatory failure and refusal to
hire or consider for them hire because of their membership in or
affiliation with the Charging Parties. Offer those employee
applicants who would currently be employed but for the Re-
spondents’ unlawful refusal to hire or consider them for hire,
employment positions for which they applied or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges to
which they would been entitled if they had not been discrimi-
nated against by the Respondents.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its At-
lanta, Michigan facility the attached notice marked “Appen-
dix.”74 Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Respondents’
authorized representative, shall be posted by the Respondents
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 Respondents to
ensure that the notices are not altered, defaced, or covered by
any other material.
(e) 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 the
Respondents have taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
WE WILL NOT threaten that we would lose work, reduce our
work force, or work less hours if you became represented by
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL–CIO; Local 1098, Laborers International Union
of North America, AFL–CIO; and Local 324, International
Union of Operating Engineers, AFL–CIO.
WE WILL NOT promise to look into the possibility of provid-
ing a better insurance plan if you were not represented by

74 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.”
SHAW, INC. 387
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL–CIO; Local 1098, Laborers International Union
of North America, AFL–CIO; and Local 324, International
Union of Operating Engineers, AFL–CIO.
WE WILL NOT promise you the alternative of choice between
a picnic, a bonus, or a jacket in order to dissuade you from
supporting a union.
We Will Not threaten that employees hired within the previ-
ous 6 months would lose their jobs if you became represented
by United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL–CIO; Local 1098, Laborers International Union
of North America, AFL–CIO; and Local 324, International
Union of Operating Engineers, AFL–CIO.
WE WILL NOT threaten that you would not receive pay for
travel time to a jobsite or be provided transportation to jobsites
if you became represented by United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL–CIO; Local 1098, La-
borers International Union of North America, AFL–CIO; and
Local 324, International Union of Operating Engineers, AFL–
CIO.
WE WILL NOT coercively interrogate you regarding your sup-
port for the Unions.
WE WILL NOT coercively interrogate you regarding your un-
ion sympathies.
WE WILL NOT threatening you that Shaw, Inc. would close its
doors if a union came in.
WE WILL NOT offer a monetary reward for you to engage in
surveillance of other employee’s union activities and/or to re-
port union adherents to us.
WE WILL NOT inform you that union members would not be
employed by Respondents because of their association with the
Charging Party Operating Engineers.
WE WILL NOT threaten union adherents with unspecified ad-
verse action and violence.
WE WILL NOT inform you that another employee was being
reassigned to another work crew because of that employee’s
support for the United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO; Local 1098, Laborers Interna-
tional Union of North America, AFL–CIO; and Local 324,
International Union of Operating Engineers, AFL–CIO.
WE WILL NOT create the impression of surveillance of your
union activities.
WE WILL NOT fail and refuse to hire or consider for hire cer-
tain qualified job applicants seeking employment with us be-
cause of their membership in or affiliation with United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL–CIO;
Local 1098, Laborers International Union of North America,
AFL–CIO; and Local 324, International Union of Operating
Engineers, AFL–CIO.
WE WILL NOT assign an employee to another work crew be-
cause of his support for United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO; Local 1098, Laborers
International Union of North America, AFL–CIO; and Local
324, International Union of Operating Engineers, AFL–CIO.
WE WILL NOT maintain an overly broad rule that prohibits the
distribution of literature by you on company property at any
time.
WE WILL NOT in any like or related manner interfering with,
restraining, or coercing you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL rescind our overly broad rule that prohibits the dis-
tribution of literature by you on company property at any time.
WE WILL make whole Danny McDonald, Michael Adrianse,
John Birgy, Jeff Bergkamp, John Hoos, Wayne Weeks, Rick
Stemkowski, Steve Stemkowski, Robert Jackowiak, William
Deemer, Michael Hage, Richard Konieczny, Brian Golden,
Ross Hart, William Nolan, Charles Bartholomew, Michael
Bartholomew, David Beebe, William Boone, David DeVos,
James Hooker, Robert Peters, Chad Chapman, Lee Wheeler,
and Ronald Freel for any losses they may have suffered by
reason of our discriminatory failure and refusal to hire or con-
sider for them hire because of their membership in or affiliation
with United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL–CIO; Local 1098, Laborers International Union
of North America, AFL–CIO; and Local 324, International
Union of Operating Engineers, AFL–CIO. Offer those em-
ployee applicants who would currently be employed but for our
unlawful refusal to hire or consider them for hire, employment
positions for which they applied or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges to which they
would have been entitled if they had not been discriminated
against by us.
SHAW, INC., RAPID RIVER ENTERPRISES, INC., S & R
CABLE, INC., KIMRON RESOURCES, INC.
Joseph P. Canfield, Esq., for the General Counsel.
Peter J. Kok, Esq., Lisa Latart, Esq., Elizabeth Welsh Lykins,
Esq., and Barry R. Smith, Esq. (Miller, Johnson, Snell &
Cummiskey, P.L.C.), of Grand Rapids, Michigan, for the
Respondents.
John Cobe, of Kalamazoo, Michigan, for Local 324, Interna-
tional Union of Operating Engineers, AFL–CIO.
Tom Boensch, of Saginaw, Michigan, and Stephen L. Borrello,
Esq. (Jensen, Gilbert, Smith & Borrello, P.C.), of
Saginaw, Michigan, for the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada AFL–CIO.
Eugene Barrett, of Saginaw, Michigan, and Stephen L. Bor-
rello, Esq. (Jensen, Gilbert, Smith & Borrello, P.C.), of
Saginaw, Michigan, for Local 1098, Laborers Interna-
tional Union of North America, AFL–CIO.
SUPPLEMENTAL DECISION
JOHN H. WEST, Administrative Law Judge. On September
18, 1997, I issued a decision in this proceeding concluding, as
here pertinent, that the Respondents violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act) by failing
and refusing to hire or consider for hire 25 named qualified job
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD388
applicants who sought employment with the Respondents be-
cause of the applicants’ membership in or affiliation with the
Charging Parties.1
On June 7, 2000, the National Labor Relations Board (the
Board) issued an Order Remanding Proceeding to me indicat-
ing as follows:
On May 11, 2000, the Board issued its decision in
FES, 331 NLRB No. 20 [9], setting forth the framework
for analysis of refusal-to-hire and refusal-to-consider vio-
lations. The Board has decided to remand this case to the
judge for further consideration in light of FES, including,
if necessary, reopening the record to obtain evidence re-
quired to decide the case under the FES framework.
On June 16, 2000, I issued an order directing the parties to
submit a position statement regarding this matter. In his posi-
tion statement counsel for the General Counsel contended that
the evidence submitted during the trial in this proceeding satis-
fies the tests for finding a violation announced by the Board in
FES, supra, and counsel for the General Counsel urged that an
order issue instructing the parties to submit a supplemental
brief on the question of whether the evidence presented at the
trial satisfies the requirement of FES, supra. The United Asso-
ciation of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada AFL–CIO,
and Local 1098, Laborers International Union of North Amer-
ica, AFL–CIO contended that the evidence already submitted is
sufficient to find that the Respondents “violated all of the tests
set forth in FES, supra.”2 And the Respondents, as here perti-
nent, argued that reopening the record is unnecessary since the
extensive record in this matter already contains the information
needed to render a decision under the FES criteria.
On August 17, 2000, I issued an order requiring the parties to
submit a supplemental brief on the issues raised by FES, supra,
as they relate to the proceeding at hand. In his supplemental
brief counsel for the General Counsel points out that the Re-
spondents placed advertisements for employees in local news-
papers seeking “[e]xcavator & dozer operators, roustabout &
pipeline foreman, truck drivers & general laborers . . . .” speci-
fying only that applicants must have a “clean driving record,
and be able to pass a drug test”; and that the Respondents hired
92 employees from May 1, 1995, through May 2, 1996. The

1 The remedy section of the decision contains the following:
Other considerations regarding the Remedy and the specifics
of the relief granted must wait until the compliance stage of the
proceeding as indicated in Dean General Contractors, 285 NLRB
573 (1987). See also Ultrasystems Western Constructors, 316
NLRB 1243 (1995).
The compliance stage can be used to resolve the issues outlined in
Dean General Contractors, supra, concerning the likelihood that the
discriminatees would have been transferred to other worksites upon the
completion of the projects in progress when the discrimination oc-
curred.
2 These Charging Parties contended that the General Counsel (a) es-
tablished that the involved applicants met the proper experience or
training relevant to the announced requirements for the positions, and
(b) proved that (1) the Respondents were hiring at the time that the
discriminatees made applications, and (2) antiunion animus was a fac-
tor for the discriminatees not being hired.
General Counsel contends that this period is “a time period that
reasonably encompasses that time period the discriminatees
should have been considered for employment;”3 that examples
of the Respondents’ hiring patterns are (1) Jarred Frank, who
had no experience in the pipeline field, was hired as a laborer
and also operated equipment; (2) Tim Hoffman who was hired
as a laborer even though he was previously incarcerated, he was
on probation, and had never before performed the type of work
he did for the Respondents;4 and (3) Anthony Wiacek, who was
hired as an operator but worked as a laborer; that on his first
day of work, June 28, 1995, Wiacek was told by Shaw’s fore-
man, Bill Ansel, that he needed operators; that after Shaw, Inc.
in March 1995 did not hire Danny McDonald, an operating
engineer with 6 years of pipeline experience, because of his
support for the Union, Shaw, Inc. hired 12 operators as opera-
tors and another 5 operators as laborers; that while Mike Adri-
anse, who applied at Shaw on May 8, 1995, worked as a laborer
in the pipeline field for 19 years and could operate some of the
pipeline machinery, he was not hired because of his support for
the Union5; that the involved eight Operating Engineer Local
324 members who applied for employment at Shaw on May 15,
1995,6 had years of experience as operating engineers, most had
extensive experience working on pipelines and could operate
the equipment used by Shaw, Inc., some had experience on
directional drilling crews, and a number of the applicants testi-
fied that they would have performed any work that Shaw, Inc.
had, including laborers’work; that none of the Operating Engi-
neer Local 324 members who applied for work with the Re-
spondents was hired because of their support for the Union; that
the involved eight Pipefitter Local 636 members who went to
apply for work at Shaw on April 25, 1995,7 and the involved
Pipefitting members who applied for work at Shaw in the last
two weeks of May 19958 had many years of pipefitting experi-
ence and many worked on pipelines doing the same type of
work as Shaw required but they were not hired because of their
support for the Union; that 67 employees were hired after the
last union affiliated applicant submitted his application on May
23, 1995; that most of the people hired were hired as laborers
regardless of the position for which they had applied; that the
Laborers Local 1098 members who applied9 had done pipeline
work before and they are not restricted in any manner in the
type of work they can perform on nonunion jobs; that the Re-

3 GC Br. 6.
4 While there is evidence of record that the Respondents were on no-
tice regarding Hoffman’s criminal background, it is noted that he an-
swered “no” on his application to the question of whether he had been
convicted of a felony. See R. Exh. 5 and GC Exh. 65QQ which both
are identical copies of the same application.
5 While at Tr. 110 Adrianse testified that he was told by John Picola
about Shaw, Inc’s ad in the newspaper and he found it and followed up
on it, on cross-examination Adrianse testified at Tr. 125 that Picola sent
him the ad sheet for his review and he, Adrianse, did not come upon the
ad in the Alpena paper.
6 William Nolan, Dave DeVos, Dave Beebe, Bob Peters, James
Hooker, Mike Bartholomew, Charlie Bartholomew, and Bill Boone.
7 Rick and Steve Stemkowski, Wayne Weeks, Billy Deemer, Robert
Jackowiak, John Hoos, Jeff Bergkamp, and John Birgy.
8 Richard Konieczny, Brian Golden, Michael Hage, and Ross Hart.
9 Ron Freel, Chad Chapman, and Lee Wheeler.
SHAW, INC. 389
spondents attempted to establish that the discriminatees would
not have been hired even if they did not support or were not
affiliated with the Unions by claiming that the discriminatees
were not hired because of low test scores, they lived outside
Shaw’s geographical area, they did not sign employment appli-
cations, incomplete histories on applications, no salary was
indicated on the applications, or they requested salaries outside
of Shaw’s range; that the Respondents did not attempt to estab-
lish that the discriminatees were not hired because there were
no job openings or because they were not qualified to perform
the work; that there is evidence of record suggesting that Shaw
hired individuals who either provided nothing more than a
name, address, and phone number, or who submitted applica-
tions after they were hired; that since the Respondents routinely
hired operators to perform laborer’s work, the operating engi-
neer discriminatees could not be deemed unqualified to perform
laborer’s work, and the pipefitter discriminatees, especially
those who indicated their willingness to perform other work,
should be treated similarly.
In their supplemental brief, the Respondents argue that the
General Counsel failed to establish a prima facie refusal to hire
case under the FES, supra, framework; that the evidence does
not establish that there were positions available for each appli-
cant; that the mere fact that the Company hired other employ-
ees does not establish the General Counsel’s burden of demon-
strating that, for each applicant, there was an available position
which corresponded to the Company’s timing for hiring appli-
cants or the skills needed for the position; that the General
Counsel cannot meet its burden of proving that any of the al-
leged discriminatees who applied for welder/pipefitter jobs
should have been hired in lieu of other applicants because no
other applicants were hired for these positions; that no pipefit-
ters were hired by the Company during the period covered by
General Counsel’s Exhibit 67, which outlines all the individuals
hired by the Company, and the Company does not hire or em-
ploy welders; that the Company does not have to hire over-
qualified applicants, namely pipefitters and welders, for labor-
ers positions, and Board law provides that an employer does not
have to hire overqualified applicants, Windemuller Electric,
Inc., 306 NLRB 664, 680 (1992), enfd. in part 34 F.3d 384 (6th
Cir. 1994); Bay Control Services, 315 NLRB 30 (1994); Wire-
ways, Inc., 309 NLRB 245, 246 (1992); GM Electric, 323
NLRB 125 (1997); that the Company had an abundance of
labor applications during the relevant time period and, as a
result, did not hire overqualified applicants for unskilled work;
that the evidence submitted by the General Counsel does not
establish that there was a specific opening for each of the 10
operator union applicants; that since seven operators were hired
from March 16 through August 16, 1995, by the Company,
even assuming that all ten applicants were qualified, only seven
spots were available; that of the seven openings, two were for
positions for which union applicants were not qualified, namely
a directional drill operator position filled on May 1, 1995, and a
spooling truck position filled by a rehire on August 7, 1995;
that the relevant time period should not extend beyond August
16, 1995, because not one applicant was hired from March
1995 through April 1996 based on an application that was more
than 3 months old, Bay Colony Services, 315 NLRB 30, 37
(1994); AJS Electric, 310 NLRB 121, 126 (1993); that the Gen-
eral Counsel failed to establish that the operator applicants met
the objective criteria of the Company to justify their hire; that
the General Counsel cannot establish that the union applicants
had the qualifications to justify their hire over those who were
hired; that even assuming that there were job openings avail-
able for welder/pipefitter applicants, which the Respondents
deny, the applicants did not meet the objective criteria for fill-
ing the job since nine of these applicants failed to complete
portions of the applications; that the application is not confus-
ing; that the Board and the courts have clearly established that
an employer can establish guidelines for the completion of
applications and discard applications that do not conform to
such guidelines, TIC-The Industrial Co. Southeast, Inc. v.
NLRB, 126 F.3d 334 (D.C. Cir. 1997); Wireways, Inc., 309
NLRB 245, 246 (1992); that one of the objective hiring criteria
which the Respondents established was that the person had to
live within one hour of the Company’s facility; that the appli-
cants who were hired as operators were hired because of supe-
rior qualifications, wage requests that were within the Com-
pany’s wage scale, and applicants lived within the Company’s
geographic hiring area; that the fact that the labor union appli-
cations of Wheeler and Freel were missing at the time of the
trial should not be held against the Respondents in light of the
hundreds of other applications which were produced; that both
Wheeler and Freel testified that they requested union scale
wages on their applications; that Chapman also requested union
scale wages and he did not complete his application as re-
quested; that the Company had legitimate nondiscriminatory
reasons for not hiring the union applicants even if the General
Counsel can establish a prima facie case of discrimination,
which is denied; that since the Respondents had an abundance
of laborer applications they had a legitimate business justifica-
tion for refusing to offer the welders and pipefitters positions as
laborers; that the applications of those hired as laborers demon-
strates that the Company did not offer laborer jobs to overquali-
fied applicants; that the operator applicants either lived too far
from the Respondents’ facility, or their past wage history far
exceeded the wages the Company could offer, or the applicants
did not have stable employment histories; that Chapman was
not hired because this 53-year old applicant listed only three
previous jobs and, therefore, his employment history was poor;
that the fact that Wheeler and Freel requested union scale
wages alone would be a legitimate business justification for not
hiring them; that the applicants who were hired were overall
better qualified and met the Company’s objective hiring crite-
ria; that the General Counsel cannot establish a refusal-to-
consider case because the Company was not accepting any
applications for welder/pipefitter positions, and the operator
and labor applications were rejected based on objective criteria
and not antiunion animus; and that even if the General Counsel
can establish a prima facie case, the Respondents have clearly
offered legitimate nondiscriminatory reasons for not consider-
ing the applicants.
Analysis
In FES, supra at 12 and 14 of the opinion, the Board, as here
pertinent, indicated as follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD390
To establish a discriminatory refusal to hire, the Gen-
eral Counsel must, under the allocation of burdens set
forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F2d. 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
first show the following at the hearing on the merits: (1)
that the respondent was hiring, or had concrete plans to
hire, at the time of the alleged unlawful conduct; (2) that
the applicants had experience or training relevant to the
announced or generally known requirements of the posi-
tions for hire, or in the alternative, that the employer has
not adhered uniformly to such requirements, or that the re-
quirements were themselves pretextual or were applied as
a pretext for discrimination, and (3) that antiunion animus
contributed to the decision not to hire the applicants. Once
this is established, the burden will shift to the respondent
to show that it would not have hired the applicants even in
the absence of their union activity or affiliation. If the re-
spondent asserts that the applicants were not qualified for
the positions it was filling, it is the respondent’s burden to
show, at the hearing on the merits, that they did not pos-
sess the specific qualifications the position required or that
others (who were hired) had superior qualifications, and
that it would not have hired them for that reason even in
the absence of their union support or activity. In sum, the
issue of whether the alleged discriminatees would have
been hired but for the discrimination against them must be
litigated at the hearing on the merits.
If the General Counsel meets his burden and the re-
spondent fails to show that it would have made the same
hiring decisions even in the absence of union activity or
affiliation, then a violation of Section 8(a)(3) has been es-
tablished. The appropriate remedy for such a violation is a
cease-and-desist order, and an order to offer the discrimi-
natees immediate instatement to the positions to which
they applied or, if those positions no longer exist, to sub-
stantially equivalent positions, and to make them whole
for losses sustained by reason of the discrimination against
them.
. . . .
in cases involving numerous applicants, the General Counsel
need only show that one applicant was discriminated against
to establish a refusal-to-hire violation warranting a cease-and-
desist order. If the General Counsel seeks an affirmative
backpay and instatement order, he must show that there were
openings for the applicants. Consequently, if as here, there is
evidence that the respondent has hired employees or had
openings available, the General Counsel must show at the
hearing on the merits the number of openings that were avail-
able, that the applicants had the training or experience rele-
vant to the openings, and that antiunion animus contributed to
the respondent’s decision not to hire the applicants for the
openings. Once the General Counsel makes this showing, the
burden shifts to the respondent to show that it would not have
hired the applicants even in the absence of their union activity
or affiliation. [Footnotes omitted.]
As noted in my above-described decision, the parties stipu-
lated that General Counsel’s Exhibit 63, a classified ad reading
as follows appeared in one of the local newspapers in February
or March 1995:
HELP WANTED: Excavator and dozer operators, roust-
about and pipe line foreman, truck drivers and general labor-
ers. Must have a clean driving record, and be able to pass a
drug test. Apply at: Shaw, Inc. M-32-33, Atlanta.
As here pertinent, the Respondents began hiring operators and
laborers on May 1, 1995. The General Counsel contends that
May 1, 1995, through May 2, 1996, is a time period which
reasonably encompasses that time period the discriminatees
should have been considered for employment. The Respon-
dents argue that the relevant time period should not extend
beyond August 16, 1995 “[b]ecause not one applicant was hired
from March 1995 through April 1996 based on an application
that was more than three months old . . . .” (R. Br. 9.) Contrary
to the assertion of the Respondents, more than one person was
hired during the 1995 season based on an application which
was more than 3 months old. Indeed, one (see GC Exh.
65HHH) was hired based on an application which was 5
months and 13 days old. Accordingly, if one were to take the
Respondents’ approach, notwithstanding the fact that the Re-
spondents’ do not have a specific policy with respect thereto,
the relevant period would end 5 months and 13 days after May
15, 1995, which is the date on which the last of the operating
engineers submitted their applications to the Shaw, Inc.10 In
other words, if one were to take this approach, the relevant time
period would end October 28, 1995. During this period the
Respondents hired 9 operators and 63 laborers. So even if there
is a question regarding two of the operator positions, which
matter will be dealt with below, since (a) the Respondents hire
operators as laborers; (b) most of the involved operator appli-
cants indicated a willingness to accept a laborers position; and
(c) some of nonunion affiliated applicants who were hired as
laborers during the involved period sought operator positions,
there was an opening for each and every one of the involved
operator and laborer applicants.11 Extending the period to the
end of calendar year 1995 would add one operator and five
laborer positions.
As here pertinent, the General Counsel has made a prima fa-
cie showing that the involved 10 operator and 3 laborer appli-
cants have the necessary experience and qualifications.12
For the reasons specified in my prior Decision, the Respon-
dents knew, as here pertinent, that the involved 10 operators

10 Of the three applicants who specifically applied for the position of
laborer, two testified that they submitted their applications in early May
1995 (the Respondents claim that the applications are missing) and the
third, Chad Chapman, submitted his application on May 10, 1995. For
the reason specified below, May 23, 1995, the date on which some
pipefitter/welders submitted their applications to the Shaw, Inc., is not
controlling.
11 One of the operators who the Respondents hired during the in-
volved period, Calvin Garms, was terminated. It was noted by the
Respondents that he could be rehired as a laborer.
12 See the discussion below regarding operator Danny McDonald.
The applications of all of the operator applicants, except Charles Bar-
tholomew show that the applicants have experience as an operator.
Charles Bartholomew should be offered instatement to a laborer posi-
tion.
SHAW, INC. 391
and 3 laborers were affiliated with the involved Unions and
there was significant antiunion animus which contributed to the
decision not to hire the involved 10 operators and 3 laborers.
The General Counsel has made a prima facie case with re-
spect to the involved 10 operators and 3 laborers. Therefore,
the burden shifts to the Respondents to show that they would
not have hired the applicants even in the absence of their union
activity or affiliation.
As noted in my prior decision herein, the first of the involved
applicants to apply at Shaw, Inc., McDonald, was given an
operator’s test. The Respondents did not demonstrate that there
was any written policy requiring such a test or that such test
had been given in the past as a matter of routine. When
McDonald subsequently inquired about the position he was not
told that he allegedly did poorly on the test. The first operator
subsequently hired by the Respondents, Roger Beatty, was not
tested. The next operator hired by the Respondents, Keith
Sharbaneau, allegedly was tested but at one point the person
who supposedly tested him could not remember it.13 Then, as
here pertinent, the Respondents went on to hire either seven or
eight operators, depending on whether the October 28, 1995, or
the end of calendar 1995 cutoff is used, and did not test any of
them. Three of the 9 or 10 were allegedly rehires so it might be
argued that the Respondents were already aware of their capa-
bilities. Four of the 9 or 10 operators hired (depending on the
cutoff date) were subsequently terminated by the Respondents.
One, Calvin Garms, was terminated 6 days after he was hired
and his termination slip (GC Exh. 65C), notes that he was
“HIRED AS OPERATOR—DID NOT PERFORM WELL—
WOULD HIRE AS LABORER.” Garms had not worked for
the Respondents in the past so he was not a rehire. Garms was
not tested before he was hired.
The Respondents did not demonstrate that when they were
hiring in May to October or December 1995 they compared the
qualifications of the union affiliated applicants with those who
they hired as they filled each of the involved positions. Com-
parisons based on alleged unwritten subjective criterion not
specified in 1995 and now advanced by management is nothing
more than a post hoc rationalization advanced in an attempt to
avoid legal liability.14 None of the involved union affiliated
operator or laborer applicants was told in 1995 about any writ-
ten or unwritten policy the Respondents allegedly had regard-
ing the distance they lived from the Respondents’ facility.
It is argued by the Respondents that the fact that the three
union affiliated laborer applicants indicated that the rate of pay
expected was “union scale” alone would be a business justifica-
tion for not hiring these applicants. Lucas testified that because
the Respondents have pretty much a certain rate scale that they
start people out at, he likes to see a number on the rate of pay
expected so that he can make sure that it is within the Respon-
dent’s scale. Notwithstanding this testimony, the Respondents

13 It is noted that McDonald’s application is dated March 16, 1995,
Sharbaneau’s application is dated March 20, 1995, and Beatty’s appli-
cation is dated May 1, 1995.
14 The Respondents’ witness Gregory Lucas, who is the operations
manager for Shaw, Inc., testified that he likes to hire people who live in
the area because the Respondents work 12 to 13 hours a day, 7 days a
week year round.
hired a number of laborers who either left the rate of pay ex-
pected line blank or collectively wrote “neg,” “fair,” “open,”
“starting pay,” “base,” “starting rate,” “negotiable,” or “entry.”
One of these individuals previously held a job paying well in
excess of what the Respondents normally pay laborers and
another indicated that he expected a rate about 35 percent
above what the Respondents normally pay.15 Yet the Respon-
dents hired them. Consequently, there must have been discus-
sions and a meeting of minds on what the Respondents would
pay. There were no such discussions with the union affiliated
applicants. The union affiliated laborer applicants were dis-
criminated against not because they indicated that they ex-
pected union scale but because “union scale” meant they were
affiliated with the union. There were no discussions with the
union affiliated laborer applicants to determine if they were
willing to accept something less than what they indicated they
expected. The Respondents have not demonstrated that they
were working with a strict budget and had little or no flexibility
with respect to what they could pay.
With respect to any alleged shortcoming on the part of union
affiliated laborer applicant Chad Chapman in filling out his
application, one need only review the applications of the labor-
ers hired by the Respondents as found in General Counsel’s
Exhibit 65. The Respondents hired a number of laborer appli-
cants who gave a lot less information than Chapman. Indeed
Shaw, Inc. hired some and let them submit incomplete applica-
tions days after they were hired (see GC Exhs. 65Q and II) or
on the day that they were hired (see GC Exh. 65DDDD).
The Respondents contend that two of the operator positions
would not have been available to the union affiliated operator
applicants because when Roger Beatty was hired as a direc-
tional drill operator on May 1, 1995, only Danny McDonald
had submitted an application to the Respondents, and McDon-
ald admitted that he had never operated a directional drilling
machine. Also the Respondents argue that Jay Webber was
rehired on August 7 to operate a spooling truck, a highly spe-
cialized job which none of the union affiliated applicants were
qualified to perform. If one accepts the contentions of the Re-
spondents regarding Beatty and Webber, there were still seven
or eight operator positions available depending on the cutoff
date. The remainder of the union affiliated operator applicants
could have been hired as laborers, a position which many indi-
cated a willingness on their applications to accept.

15 The application received as GC Exh. 65U shows that this appli-
cant, who was applying for a laborer job, previously earned $18.95 an
hour as a heavy equipment operator and he left the rate of pay expected
blank. According to the note at the top of the application he was hired
at $6 an hour. The application received as GC Exh. 65FFFF shows that
this applicant, who was applying for “1. HEAVY EQUIPMENT, 2.
MECHANIC WELDER” with a rate of pay expected of $8 per hour,
previously earned $14.20 (apparently per hour) as a millwright. This
applicant also had experience as a backhoe operator, and a heavy
equipment operator. According to the note at the top of the latter appli-
cation, the applicant was hired at $8 an hour which is $2 above what
the Respondents normally pay for laborers. The former was terminated
less than 2 months after he was hired and the latter was terminated 10
days after he was hired.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD392
With respect to the union affiliated pipefitters and welders,
none of them indicated on their applications that they were
willing to take a laborers position. Accordingly, the Respon-
dents have shown that they had a business justification for re-
fusing to hire the union affiliated pipefitter/welders for such
positions. This finding moots any remaining questions about
incomplete applications.
Since the number of operator applicants exceeds the number
of available jobs, which of the operator applicants would have
been hired for operator jobs and which would have been hired
for laborer jobs will be determined at the compliance stage.
CONCLUSIONS OF LAW
1. The Respondents are employers engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the Act.
2. The Unions are labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondents committed numerous violations of Sec-
tion 8(a)(1) of the Act as set forth in my prior decision herein.
4. The Respondents violated Section 8(a)(3) and (1) of the
Act by (a) refusing to hire certain qualified job applicants seek-
ing employment with the Respondents because of their mem-
bership in or affiliation with unions, namely Danny McDonald,
Michael Adrianse, William Nolan, Charles Bartholomew, Mi-
chael Bartholomew, David Beebe, William Boone, David De-
Vos, James Hooker, Robert Peters, Chad Chapman, Lee
Wheeler, and Ronald Freel; and (b) assigning employee Chad
Drumb to another work crew because of his support for the
Charging Parties.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
6. Except as found in this supplemental decision and in my
prior decision herein, Respondents otherwise have not been
shown to have engaged in conduct violative of the Act as al-
leged in the complaint.
REMEDY
Having found that the Respondents engaged in certain unfair
labor practices, I shall recommend that they be ordered to cease
and desist therefrom and that they take certain affirmative ac-
tion set forth below to effectuate the policies of the Act.
Having found that the Respondents violated Section 8(a)(1)
and (3) of the Act by unlawfully refusing to hire certain quali-
fied job applicants seeking employment with the Respondents
because of their membership in or affiliation with certain of the
Charging Parties, namely Danny McDonald, Michael Adrianse,
William Nolan, Charles Bartholomew, Michael Bartholomew,
David Beebe, William Boone, David DeVos, James Hooker,
Robert Peters, Chad Chapman, Lee Wheeler, and Ronald Freel,
the Respondents must offer them instatement and make them
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date they would have been hired to
the date of a proper offer of instatement, less any interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
Other considerations regarding the Remedy and the specifics
of the relief granted must wait until the compliance stage of the
proceeding as indicated in Dean General Contractors, 285
NLRB 573 (1987). See also Ultrasystems Western Construc-
tors, 316 NLRB 1243 (1995).
[Recommended Order omitted from publication.]