Standard Sheet Metal

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 411 (N.L.R.B. 1998)

STANDARD SHEET METAL, INC. 411
Standard Sheet Metal, Inc. and Sheet Metal Workers
International Association, Local Union No. 162,
AFL–CIO. Cases 32–CA–15675, 32–CA–15770,
and 32–RC–4199
August 27, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
On September 25, 1997, Administrative Law Judge
Burton Litvack issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, a reply
brief, and an answering brief. The General Counsel filed
cross-exceptions, a supporting brief, and a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3

1 The judge found that the Respondent violated Sec. 8(a)(1) in several
instances. We note that the Respondent has excepted only to the
8(a)(1) finding that it unlawfully videotaped employees.
The General Counsel’s exceptions do not contend that there was a
supervisory position for which job applicant Fred Venglarcik should
have been considered. Thus, we find it unnecessary to pass on the
judge’s discussion in the second paragraph of fn. 48.
Member Brame finds it unnecessary to pass on the judge’s finding that
the Respondent did not violate Sec. 8(a)(1) when, in a telephone con-
versation on or about May 20, 1996, an unidentified woman asked
Venglarcik if he had ever worked for an open shop because the viola-
tion, if found, would not materially affect the remedy. Thus, Member
Brame does not pass on the judge’s finding that the woman who spoke
to Venglarcik was not shown to be an agent of the Respondent.
The General Counsel’s exceptions contend that the Respondent un-
lawfully failed to consider Venglarcik for an open nonsupervisory
position in June 1996 that was filled by David Schoolen. Member
Brame finds no merit to the General Counsel’s contention because it
was not fully or fairly litigated. At the hearing, counsel for the General
Counsel asserted that there were two unlawful refusals to hire, in June
and in August 1996, and that the first refusal concerned either a
“straight installer” job or a leadman job. Schoolen was hired on June 28
as an apprentice mechanic/installer. Counsel for the General Counsel
did not assert at the hearing that the Respondent unlawfully failed to
hire Venglarcik for this position, and introduced no testimony or evi-
dence concerning the decision to hire Schoolen. In contrast, various
witnesses testified in detail about the Respondent’s hiring decisions in
early June for positions eventually filled by Manuel Martinez and Rich-
ard Hill and its hiring decisions in August for positions filled by em-
ployees Kenneth Maldanado, Ramiro Munoz, and Jason Israelian. In
these circumstances, Member Brame agrees with his colleagues that the
General Counsel’s exceptions are without merit.
Member Brame also would not find merit in the allegation that the
Respondent violated Sec. 8(a)(1) of the Act by videotaping a union
demonstration conducted on a public street outside the Respondent’s
office and shop facility. The demonstration was conducted in the open,
and the videotaping unaccompanied by threats or other conduct that
would suggest coercion. Member Brame believes that whether em-
ployer videotaping violates the Act depends, as with other alleged
8(a)(1) conduct, on whether, under the particular circumstances, the
conduct would reasonably tend to “interfere with, restrain, or coerce
employees” in the exercise of protected rights. See United States Steel
Corp. v. NLRB, 682 F.2d 98, 101–104 (3d Cir. 1982). Given the open
and public character of the demonstration, as well as the absence of
other factors objectively indicating coercion, Member Brame is unable
to conclude that the employer’s photography trangressed the Act
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Standard
Sheet Metal, Inc., Fresno, California, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
Substitute the following for paragraph 2(f).
“(f) Within 14 days after service by the Region, post at
its Fresno, California, facility copies of the attached no-
tice marked ‘Appendix.’59 Copies of the notice, on forms
provided by the Regional Director for Region 32, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 21, 1996.”

Virginia L. Jordan, Esq., for the General Counsel.
Mark R. Thierman, Esq. (Thierman Law Firm), of San
Francisco, California, for the Respondent.
Mark S. Renner, Esq. (Wylie, McBride, Jessinger, Sure &
Plattan), of San Jose, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Based on the
unfair labor practice charge in Case 32–CA–15675, filed by
Sheet Metal Workers International Association, Local Union
No. 162, AFL–CIO (the Union), on September 13, 1996,1 and
the unfair labor practice charge in Case 32–CA–15770, filed by
the Union on October 25, the Regional Director for Region 32
of the National Labor Relations Board (the Board), on Decem-
ber 19, issued a consolidated complaint, alleging that Standard
Sheet Metal, Inc. (Respondent) had engaged in acts and con-
duct violative of Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act). Also, on December 19, the aforemen-
tioned Regional Director issued a report on objections and chal-
lenged ballots in Case 32–RC–4199 and consolidated the issues
raised therein for hearing with the unfair labor practice issues

2 In setting aside the election on the basis of meritorious objections,
the judge found it unnecessary to resolve the challenges to the ballots of
several voters. We note that no exceptions have been filed to this find-
ing.
3 In accord with Excel Container, Inc., 325 NLRB 17 (1997), we shall
change the date in par. 2(f) of the recommended Order from June 1 to
May 21, 1996, the date of the first unfair labor practice.
1 Unless otherwise specified, all events herein occurred within 1996.
326 NLRB No. 35
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412
of the consolidated complaint. Respondent timely filed an
answer, essentially denying the alleged unfair labor practices.
Thereafter, the issues, raised by the consolidated complaint and
the report on objections and challenged ballots, came to trial,
before me on February 25 and 26, 1997, in Clovis, California.
During the trial, all parties were afforded the opportunity to
examine and to cross-examine all witnesses, to offer into the
record any relevant evidence, to orally argue their legal posi-
tions, and to file posthearing briefs. The latter documents were
filed by counsel for the General Counsel and by counsel for
Respondent, and each has been carefully considered. Accord-
ingly, based on the entire record, including the posthearing
briefs and my observation of the testimonial demeanor of each
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a State of California corporation, with an office
and place of business located in Fresno, California, is engaged
in the business of the nonretail fabrication and installation of
sheet metal products, including air-conditioning systems. Dur-
ing the 12-month period, which immediately preceded the issu-
ance of the consolidated compliant, which period is representa-
tive, in the normal course and conduct of its above-described
business operations, Respondent purchased and received goods,
valued in excess of $50,000, directly from suppliers, which are
located outside the State of California. Respondent admits that
it is an employer within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUES
The consolidated complaint alleges that Respondent engaged
in acts and conduct, violative of Section 8(a)(1) and (3) of the
Act, by, on or about May 20 and since said date, refusing to
hire an individual, Fred Venglarcik,2 because of his member-
ship in the Union; by, in late July, suspending employee Char-
les Whitehead because of his support for the Union; and by, on
or about September 13, removing employee Whitehead from a
prevailing wage job and ordering him to return to the shop be-
cause of his support for the Union. The consolidated complaint
also alleges that Respondent engaged in acts and conduct,
violative of Section 8(a)(1) of the Act, by interrogating a job
applicant about his membership in the Union and his Union
activities, informing job applicants that Respondent was an
open shop, requiring a job applicant to execute a waiver of
union affiliation as a condition of employment, informing a job
applicant that his affiliation in the Union was preventing Re-
spondent from hiring him, interrogating employees about their
union activities and sympathies, threatening an employee that
Respondent would close its business if the employees selected
the Union as their bargaining representative, engaging in
surveillance of its employees’ union activities by videotaping a
union demonstration in front of its facility, and ordering an
employee to leave its shop facility because he was wearing a

2 Venglarcik’s name has been incorrectly spelled throughout the
transcript, and counsel for the General Counsel’s motion to correct the
transcript to reflect the correct spelling is granted.
prounion T-shirt. Respondent denied refusing to hire Venglar-
cik because of his union membership, affirmatively alleging
that Venglarcik had originally been rejected for hire into a su-
pervisorial position, and denied suspending employee White-
head because of his support for the Union. With regard to re-
moving Whitehead from a job, Respondent contends that such
resulted from the latter’s disruptive conduct and refusal to ad-
here to an established dress policy. Finally, Respondent denied
the commission of any of the alleged Section 8(a)(1) violative
conduct.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent, a State of California corporation, with a place of
business in Fresno, California, is engaged in the fabrication of
sheet metal products, including the installation of air-
conditioning systems. The record establishes, and Respondent
admits, that Ray Griesner is the owner of the business and the
president of the corporation; that Russ DeJohn is its general
manager; that Steve Santos is the shop superintendent; and that
Steve Torres performs four distinct job assignments for Re-
spondent—salesman, estimator, tracking technologist, and
health and safety administrator.3 The record further establishes
that Respondent employs approximately 25 to 30 journeymen
and apprentice sheet metal workers; that, on August 5, the Un-
ion filed its representation petition in Case 32–RC–4199, seek-
ing an election for selection as the bargaining representative of
Respondent’s full-time and regular part-time fabrication, instal-
lation, adjustment, alteration, repair, and service employees;
and that the said representation election was held on September
17, with 9 votes cast for and 10 against the Union.
According to alleged discriminatee, Charles Whitehead, who
worked for Respondent from July 1995 through September
1996, the Union’s organizing campaign amongst Respondent’s
sheet metal workers commenced in early May when he went to
the Union’s office and spoke to two agents, Frank Flores and
Lucy Arnot. He signed an authorization card and, thereafter,
between May and the end of July, spoke to other employees,
informing them of their right to representation and directing
them to the Union. Whitehead testified that, months before he
contacted the Union, in the fall of 1995, his foreman, Manuel
Martinez, warned him “that if I talked to any of the Union guys
. . . on the job, he would send me home for the day.” Martinez,
who testified on behalf of Respondent, failed to deny the com-
ment, which was attributed to him.
Alleged discriminatee, Frederick Venglarcik, who has been a
member of the Union for approximately 10 years and who, as a
journeyman sheet metal worker and as a foreman, has had ex-
perience working on prison air conditioning installation jobs,
testified that, on or about May 20, he saw an advertisement, in
the Fresno Bee newspaper, for an air-conditioning in-
staller/leadman and a phone number. He called the telephone
number, and a women answered. When Venglarcik identified
himself and said he was calling in reference to the newspaper
advertisement, the woman gave the telephone to another
woman, who said he was “speaking to Standard Sheet Metal.”
She then said, “they were taking applications over the tele-
3 Respondent admits that Griesner, DeJohn, and Santos are supervi-
sors within the meaning of Sec. 2(11) of the Act and that Griesner,
DeJohn, Santos, and Torres are agents within the meaning of Sec. 2(13)
of the Act.
STANDARD SHEET METAL, INC. 413
phone” and “asked if I ever worked on a prison before . . . .”
The alleged discriminatee recounted his prior work experience
at prisons, and the woman then “asked me if I ever worked for
an open shop before.” Venglarcik said, no, and the woman said
someone would return his call. Not awaiting a return telephone
call, he went to Respondent’s Fresno office and shop facility
the next day in order to obtain an employment application and,
inside the facility, encountered Ray Griesner, who, he knew, is
the owner of Respondent. Venglarcik took an employment
application, completed it at home, and, the next morning, re-
turned to Respondent’s facility. He gave the application to a
receptionist, who, in turn, handed it to Griesner, who was
standing in the office. According to Venglarcik, the former
glanced through it and asked what he had done for each of the
listed past employers.4 Then, Griesner “asked me if I was still a
member of the union,” and “I told him, no, I wasn’t. I told him
to hell with the union, I’m just looking for a job.” Griesner
then asked, “had I ever worked at a non-union establishment”
to which the alleged discriminatee answered “no.”5 The conver-
sation ended with Griesner saying someone would telephone
Venglarcik.
Two days later, on May 23, Venglarcik testified, Russ De-
John telephoned him and, after identifying himself, asked the
former to speak to Respondent’s secretary in order to arrange a
time and date for an interview. The alleged discriminatee did
so and, at 5:30 in the afternoon on May 30, met with DeJohn in
the latter’s office at Respondent’s facility. According to
Venglarcik, they shook hands, and the conversation immedi-
ately turned to “all my previous employers, what jobs I had
been on, what jobs I had ran as a foreman.” DeJohn then said
“they were looking for somebody [with] . . . experience on
prisons”6 and asked “if I had ever worked on a prison or been a
foreman on a prison.” Venglarcik responded affirmatively and
explained that he “[had been] a foreman for AMA Mechanical
at Coalinga Prison and Susanville Prison.” When he finished
describing his work experience at prisons, DeJohn handed him
a sheet of paper, Respondent’s Exhibit 1, bearing the title,
“Foreman/Leadman Job Description” and an effective date.
Said document enumerated nine job responsibilities of a fore-
man/leadman, including to “run installing crew and maintain
proper supplies at job site,”7 and DeJohn “explained that . . . I
had pretty much covered if not more than what that sheet . . . .
stood for.”8 Then, DeJohn turned to what Venglarcik had set
forth, on his application, as his desired wage rate, saying that
“$15 an hour . . . . was a little steep” and explaining that most
of Respondent’s installers started at $10 per hour, and “if you
proved to be well worth it, within one year . . . a lead man

4 On his application form, Venglarcik stated that he was applying for
a sheet metal worker job.
5 Griesner did not testify at the trial and, therefore, of course, failed
to deny what was attributed to him.
6 Respondent had recently been awarded the contract for an air con-
ditioning installation project at the Corcoran State Prison, located in
Corcoran, California, which is 60 miles from Fresno. There is no dis-
pute that Respondent was scheduled to commence its installation opera-
tions there in July or August and that, at the time of DeJohn’s interview
with Venglarcik, it was in the process of assembling its management
team for the project.
7 Venglarcik understood that running a crew meant assigning a work
crew to jobs depending on the work requirements.
8 Venglarcik conceded that, although DeJohn did not describe the
available job in detail, he believed that what the former discussed was a
supervisory position.
would be making $12 an hour.” He added that if Venglarcik
was as good a worker as he claimed, “there would be no prob-
lem with giving [him] that couple of dollars extra per hour.” At
this point in the conversation, according to Venglarcik, DeJohn
“asked me about my union affiliation”9 and, looking through
some papers on his desk, said “that there was some sort of form
that I needed to sign to waive my union affiliation.” DeJohn,
however, was unable to find the document and said Respondent
was in the process of “making more.”10 Thereupon, the meet-
ing ended with DeJohn saying he and Griesner “and a few other
associates there”11 would review Venglarcik’s application and
“get back” to him.
Notwithstanding what DeJohn said and having heard nothing
with regard to being hired, on June 7, Venglarcik telephoned
Respondent’s office and spoke to the receptionist, who said
“that the position had been filled but I . . . was still being con-
sidered for a job there.” A week later, according to the alleged
discriminatee, he again telephoned Respondent and was put
through to DeJohn. Venglarcik asked about his chances of
being hired, and DeJohn said “they were still working on some-
thing about my union affiliation . . . and they were trying to
work around [it].” Venglarcik then asked if this was acting as
an impediment to him being hired, and DeJohn responded, “not
in a direct way that it was, but in a way it was.” The latter con-
cluded by assuring Venglarcik that Respondent would be in
contact with him.
Venglarcik heard nothing further from Respondent until one
afternoon in mid-August at which time he received a “pager”
message and telephone number. He called the number, and an
unidentified individual said that he had reached Respondent’s
office, that he was still being considered for a position there,
and that they would like him to come in for another interview
later in the afternoon.12 Venglarcik agreed to do so and arrived
at Respondent’s office at approximately 6 p.m. A man ap-
proached him, identified himself as Steve Santos, and told
Venglarcik that he had to complete another job application.
The latter did so “right in front of [Santos],” and, as he wrote,
Santos “asked me if I had ever worked in a non-union shop.”
Venglarcik said, no, and Santos then “wanted to know if I had
ever worked as a foreman . . . .” The latter said that he had, and
Santos asked about his foreman qualifications, explaining that
Respondent’s foremen sometimes would “come back in” and
“would fabricate their own fittings for field installation”
Venglarcik said this would be no problem, adding that he was a
fast learner and could “grasp” things quickly. The conversation
concluded with Santos saying he would speak to Griesner and
telephone Venglarcik; however, he never did.
Charles Whitehead testified that, on Thursday, July 11, he
was working at an Albertson’s grocery market in Fresno. Dur-
ing a break period, he sat in the shade with other employees,
9 Venglarcik stated that, at least, one of the past employers, listed on
his employment application, was a known union shop. DeJohn con-
ceded knowing that some of the past employers, which Venglarcik
listed on his application, were union contractors.
10 During cross-examination, Venglarcik said he told DeJohn that he
was no longer a member of the Union.
11 DeJohn conceded discussing Venglarcik’s application with Gries-
ner.
12 Respondent does not dispute that it called Venglarcik in for an-
other interview but offered no explanation as to who directed that such
be done or as to the surrounding circumstances.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414
“and I brought up the fact that I felt that I was short some pay
on a certain job . . . .” 13 Although unclear in the record, White-
head was referring to an earlier prevailing wage job on which he
worked and was paid as an apprentice but believed he should have
received a journeyman’s wages as he was the only nonsupervisory
employee on the job. Manuel Martinez, who was sitting nearby
and was the foreman, “brought up the fact that if I was working
for the Union, I wouldn’t have received that money either.”
Whitehead replied that he should have been paid the prevailing
journeyman’s wage, meaning union scale, rather than the ap-
prentice scale and that Respondent “found reasons that they felt
I didn’t deserve full scale.” Martinez again said “if you were
working in the Union, you wouldn’t have received that pay
either.” To this, Whitehead retorted that, if he were in the Un-
ion, he would not have been in that situation, “and [Martinez]
said that he worked in the Union for x amount of years, and it’s
not that way.” Then, according to Whitehead, Martinez began
saying things which “offended my thoughts of the Union and
what I felt,” and “I said that, in the Union, you’re offered your
health care and your benefits. I have no health care and bene-
fits at Standard Sheet Metal. And in the Union, you get vaca-
tion pay [but not at Standard Sheet Metal].” To this, Martinez
said that things also do not always work out with the Union.
Apparently, the break period ended at that point, and the em-
ployees returned to work.
The next day, Friday, Whitehead testified, he was working at
the Albertson’s job and reached 40 hours of work for the week
at approximately noontime. Respondent “did not pay overtime
so I was asked to leave” the jobsite, and he drove to its office
and shop facility in Fresno in order to pick up his paycheck.
Upon entering the office, he spoke to one of the two secretaries
and requested his paycheck. The secretary replied that he
would be paid after a mandatory safety meeting later that after-
noon. Whitehead replied that he did not want to wait until after
the safety meeting, and “I would like to pick up my check at
that time.” The secretary said she could not give him his pay-
check at that time and would have to speak to Steve Santos.
She reached him by Respondent’s “two-way radio,” and Santos
said he would return to the office. He arrived at 1:30, said
nothing to Whitehead, and, an hour later, “called me into his
office where I met with [him] and Russ DeJohn. And at that
time, [DeJohn] informed me that . . . . I had a bad attitude on
the job, and it was affecting the others, and . . . I would be sus-
pended indefinitely.” Without offering any further explanation,
either Santos or DeJohn asked if he would be quitting; White-
head said he would not quit and asked how long his suspension
would last. DeJohn said that the suspension was for 1 week
and handed a disciplinary notice to Whitehead, which he
signed. The document, General Counsel’s Exhibit 6, is divided
into three parts. The upper part, headed “Employee” and to
which Whitehead affixed his signature, states as a reason for his
discipline, “extreme negative attitude toward company & train-
ing program—promotes low morale”; the middle portion,
headed “supervisor” and signed by Santos, states, as the action
recommended, “due to current work load slow down—
immediate suspension of employment effective 7–12–96 to 7–
19–96”;14 and the lower portion, signed by DeJohn affirms the

13 Although unclear in the record, Whitehead was referring to an ear-
lier prevailing wage job on which he worked and was paid as an ap-
prentice but believed he should have received a journeyman’s wages as
he was the only nonsupervisory employee on the job.
recommendation of Santos. Notwithstanding what was written
on the suspension document, Whitehead denied that such was
mentioned as a reason for his suspension by either DeJohn or
Santos and that, in fact, there existed a slowdown in work at the
Albertson’s project.
On July 19, Whitehead returned to work following his sus-
pension and, for the next 5 weeks, worked exclusively inside
Respondent’s shop facility. He testified that, approximately
“every two days” during this time period, Steve Torres ap-
proached him with Union-related comments and questions.
Thus, according to Whitehead, on at least 10 occasions, Torres
initiated conversations, asking such “questions as ‘where do
you guys meet with the Union?’” To these, Whitehead would
reply that he did not know what Torres was talking about. On
other occasions, Torres “asked what we thought about the Un-
ion involvement in the shop. He explained . . . that he worked
in union at Fruehoff and explained the down sides of his deal-
ings with union workers . . . and basically he just tried to pump
me for information about the Union.” Whitehead recalled two
such instances in particular. On one occasion, he was having
lunch with another employee when Torres approached and
began speaking about his dealings with the Union. Whitehead
walked away toward the timecard rack but Torres followed and,
beside the time clock, said, “You know, if the shop decides to
go union, Ray will just close the doors.” Whitehead nodded his
agreement. As to the second, while he was working one day,
Torres approached “and said a Frank Torres . . . or Flores or
something like that had called for me.” Whitehead asked what
the man wanted, and Torres said, “You know who I’m talking
about, right? That short Mexican guy.” Whitehead feigned
ignorance, and Torres said, “You know, the guy that comes to
the job sites looking for you.” When Whitehead asked who
Torres was talking about, the latter turned and walked away.
Steve Torres specifically denied interrogating Whitehead as to
the location of meetings, threatening Whitehead with the shut-
ting of the business, or asking Whitehead what he thought of
the Union. Torres added that “I never addressed Mr. White-
head about any Union issues.”
Corroborating Whitehead, Artist Morgan, who worked for
Respondent as a foreman from May 1995 through September
1996,15 testified with regard to a similar conversation with
Steve Torres. According to him, subsequent to the filing of the
election petition by the Union, he spoke to Torres once or twice

14 Santos testified but failed to explain his notation on the suspension
document.
15 Morgan testified that, while he normally worked with just one
other employee on jobs for Respondent, he did work on jobs, for Re-
spondent, on which he was the foreman of a five or six man crew. On
such occasions, he was responsible for “running” the crew, which
means that “I gave them their assignments as to what I wanted them to
do . . . .” In this regard, according to Morgan, he possessed “discre-
tion” as to which employees would be assigned to particular jobs, and
“I would move the person to the other part of the job” if the construc-
tion plans required such. Further, if Morgan believed that an individual
was not performing his assigned job in a suitable manner, he possessed
the authority to reassign him to another job. On other matters, such as
discipline, overtime, and granting time off from work, Morgan was not
permitted to act unless authorized by Respondent. Morgan further
testified that, as of the date of the representation election, September
17, he, Manuel Martinez, and Ken Swanson were Respondent’s fore-
men; that all were included on the election eligibility list and voted in
the election without challenge; and that he acted as the Union’s ob-
server during the election.
STANDARD SHEET METAL, INC. 415
a week about the Union “in the front office” at Respondent’s
shop facility. “He would ask me what my feelings were about
the Union and how I was going to vote, where the Union was
having their meetings . . . . I told him I wasn’t involved in it,
and didn’t have anything to say about it.” Nothing more would
be said. Torres failed to deny this testimony.
At some point in July or August, Respondent began its air
conditioning installation project at the Corcoran State Prison,
and Charles Whitehead was assigned to work there under
Manuel Martinez, the foreman on the jobsite. On the Friday
before he was to begin work at Corcoran, in the shop following
a safety meeting, the alleged discriminatee spoke to Steve San-
tos regarding a dress code16 at the prison. According to White-
head, Santos informed him that he was to report to the state
prison on Monday. “And I asked about the dress code because
I had heard rumor about wearing blue jeans to the prison and
that was not allowed. And he said, ‘Just don’t wear blue, black,
or orange, but you can wear jeans right now. That’s okay be-
cause we’re not working in the prison.’” Santos seems to have
been referring to Respondent’s worksite outside the walls of the
prison, which was known as Corcoran II. Respondent had also
been awarded a contract for air-conditioning installation work
inside the prison, a jobsite known as Corcoran I, and, appar-
ently, the dress code for the latter was slightly different. Thus,
Whitehead testified, on September 12, Martinez told him to
report to prison officials the next morning in order to pick up an
identification badge to wear while working inside the prison.
Martinez added that he should not wear blue jeans inasmuch as
the inmates wear them.
On September 13, Whitehead went inside the state prison in
order to obtain his identification badge; underneath beige cov-
eralls, which were buttoned up the front, he wore a dark blue
union logo T-shirt and blue jeans. Whitehead was given an
identification badge and then reported to Respondent’s Cor-
coran II location for work. Besides Manuel Martinez and
Whitehead, four other employees of Respondent were working
that morning at the Corcoran II worksite—Allan Buschnoff,
Ken Maldonado, Adam Bernal, and Jason Israelian. According
to Whitehead, at approximately 8:30 a.m., a company delivery
truck, driven by David Schoolen, arrived, and while helping to
unload, he offered to give the former a prounion button.
Schoolen informed Whitehead that he was already wearing a
“vote no” button and showed it to the alleged discriminatee.17
At this point, Whitehead testified, he “decided that if
[Schoolen] was going to wear buttons, then I could wear my
vote yes Union T-shirt. So I took my beige coveralls off.”
Whitehead further testified that, an hour later while he was
working, Martinez approached and said “that I couldn’t wear
that shirt on the job, that I needed to take it off.” Whitehead
replied that what he was wearing was what he wore to work.
Martinez insisted that he could not work, wearing that shirt.
Thereupon, believing he needed some witnesses to the confron-
tation, Whitehead yelled that Martinez was telling him he could
not work, wearing a union logo T-shirt. To this, Martinez re-

16 According to Whitehead, while Respondent’s employee handbook
requires that employees wear blue, button-up cotton shirts, without any
sort of writing, during work and while he adhered to the dress code 90
percent of the time, the remainder of the time he “wore T-shirts, usually
white T-shirts with logos on the front and the back.” He added that he
wore such T-shirts inside Respondent’s shop and on job sites in the
plain view of management officials.
17 Schoolen wore the button on his shirt pocket.
plied that “he wasn’t kicking me off the job, I just couldn’t
work out there with that T-shirt on.” Whitehead repeated his
assertion that Martinez was kicking him off the job because he
was wearing a union T-shirt, and Martinez again denied that he
was removing Whitehead from the job but only that he could
not continue to wear that T-shirt.18 At this point, Whitehead
removed the T-shirt, saying, ‘“Well, I can’t work out here
without a T-shirt.’ And he said, ‘Put your shirt back on’” and
“Put your coveralls back on.” Whitehead refused to honor
Martinez’ instruction, saying it was hot and he wanted “to voice
my opinion on how I feel about the Union.” He added that, if
other employees can wear “vote no” buttons, he could wear a
union logo T-shirt. At this point, according to Whitehead, an-
other employee19 pointed out that Martinez himself was wear-
ing a “vote no” button. Martinez immediately said he would
remove it, did so, and asked Whitehead to take off his T-shirt.
Once again, Whitehead refused, and Martinez ordered him to
leave the jobsite and report back to Respondent’s shop facil-
ity.20
As instructed, Whitehead drove back to Respondent’s Fresno
facility, arriving there at approximately 10 a.m. He testified
that, on entering the building, he observed Ray Griesner stand-
ing by the door to the office, and, obviously noticing White-
head, the former said, “Get out of my office. Get out of my
shop with that shirt on.” Russ DeJohn then walked out of the
office and21 “stated that I could not wear this shirt on the job,
that I was out of the company dress code, and that it was not an
appropriate shirt to wear. And I asked, ‘Is it because its a Un-
ion shirt?’ He said, ‘Its not an appropriate shirt to wear.’”
DeJohn then told Whitehead to wait and walked back inside the
office with Griesner. Approximately an hour later, “DeJohn
called me into that office and said that I was out of dress code
for the company and that I needed to change my shirt and that if
I did so, I could continue working in the shop for the rest of the
day.” The alleged discriminatee replied that the company dress
code was blue, button-up shirts, which couldn’t be worn on the
Corcoran jobsite. DeJohn repeated that he just wanted White-
head to obtain another shirt from someone in the shop and work
there.22 Whitehead refused, saying the Corcoran job was a
18 During cross-examination, Whitehead said that Martinez never
threatened to fire him from the Corcoran project. However, when
confronted with his pretrial affidavit, in which he stated that Martinez
had so threatened him, the alleged discriminatee admitted that such was
a fabrication and merely his interpretation of what Martinez said.
19 During cross-examination, Whitehead identified the employee as
Ken Maldonado. Upon being confronted with his pre-trial affidavit, in
which, he failed to mention Maldonado’s interjection, Whitehead
averred that he did not want to involve the former in this matter. Mal-
donado testified at the trial but neither counsel for the General Counsel
nor counsel for Respondent asked him about this incident.
20 According to Whitehead, that morning, another employee, Adam
Bernal, “was wearing a blue T-shirt, very close shade to the same color
of blue I was wearing which is a dark blue,” with logos on the front and
on the back. Whitehead recalled seeing Bernal on the Corcoran project
for at least, 2 weeks prior to the incident.
21 During cross-examination, Whitehead said that he told DeJohn he
had been sent back to the shop and why—”I told him I was sent . . .
back to the shop for wearing a blue T-shirt . . . . I didn’t say blue. I said
I was sent home for wearing a Union T-shirt.”
22 During cross-examination, Whitehead testified that another em-
ployee had once been sent home from the shop for wearing a union
logo T-shirt. He added that employees, including him, had worn other
types of T-shirts to work in the shop and had never been ordered to
change them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416
prevailing wage job and asking why he should take a pay cut
for wearing a union T-shirt. Then, DeJohn said he was out of
the prison dress code. Whitehead asked him to define the dress
code for him, “and he stated to me that you couldn’t wear blue,
black, orange, blue jeans. . . . And he said if I changed my
shirt, I could go back out to the prison.23 And I said, ‘You
mean, if I got a white shirt that says Union yes, I could go back
out to the prison?’ And he said, ‘Yes.’” Thereupon, White-
head left the shop in order to obtain a different T-shirt and re-
turn to the prison; however, inasmuch as, by then, it was close
to 1 p.m. and as “by the time I had returned to the job site, it
would have been time to come back,” he went back to Respon-
dent’s shop and worked the rest of the day at that location, for
which time he was paid but not at the Corcoran job prevailing
wage rate.
There is no dispute that, one afternoon in August, subsequent
to the filing of the election petition by the Union, individuals,
including officials of the Union, engaged in a demonstration in
the public street in front of Respondent’s office and shop facil-
ity in Fresno and that Steve Torres videotaped what occurred.
The videotape establishes that the demonstrators carried no
placards or signs; that, at no time, did any of them enter onto
Respondent’s property or onto the public sidewalk in front of
its facility; and that there is no evidence that the demonstrators
inhibited ingress to or egress from Respondent’s property.
While Torres testified that no employees of Respondent appear
in the videotape, he did identify an individual, named Paul
Bidard, who can be viewed therein speaking to some of the
demonstrators, as an employee of a neighboring company.
Torres denied that Paul Bidard is the name of any of Respon-
dent’s employees. In this regard, I note that, on General Coun-
sel’s Exhibit 7, Respondent’s listing of employees, eligible to
vote in the representation election, the name of Paul Bedard
appears and that counsel for the General Counsel contends that
the eligible employee, Paul Bedard, is the individual, who ap-
pears in the videotape. With regard to Respondent’s defenses to
the consolidated complaint allegation that it unlawfully failed
and refused to hire Fred Venglarcik, Russ DeJohn testified that,
by the time of his conceded interview of the former in late
May,24 Respondent had already been awarded the contract for
the installation of air conditioning in the office buildings and
warehouses at the Corcoran State Prison and, as its decision
was to not fill the position in-house,25 had commenced the
hiring process for a project coordinator,26 who would be re-

23 During cross-examination, Whitehead stated that DeJohn ex-
plained that he was out of the prison dress code and had to change his
shirt because the T-shirt, he was wearing, was blue.
24 DeJohn testified that while, in May, Respondent had placed an ad-
vertisement in the Fresno Bee for a sheet metal worker, there was not
really a position open at the time and that the advertisement was Re-
spondent’s attempt to obtain employment applications from qualified
individuals, who would be contacted when work became available.
25 DeJohn testified that Respondent’s initial plan was to utilize a cur-
rent employee as the project coordinator but that it later decided to hire
a “new person” for the position.
26 According to DeJohn, Respondent placed an advertisement, which
ran at approximately the same time as the sheet metal worker adver-
tisement, in the Fresno Bee, for an individual to fill the project coordi-
nator position. Respondent offered no corroboration for this testimony.
27 During cross-examination, asked if, at the Corcoran State Prison
job, Respondent would have utilized a project coordinator, foreman,
and leadman, DeJohn said “leadman, supervisor would be really kind of
the same.” Asked if there was going to be both a supervisor and a
sponsible for overall supervision of Respondent’s employees on
the project and for the purchasing of equipment and materials.
Also, according to DeJohn, as of the end of May, while Re-
spondent intended to use Manuel Martinez as its leadman on
the state prison job, it had not yet determined a starting date for
his transfer to that job. On this point, DeJohn later conceded
that “we were contemplating the size of the project, possibly
getting . . . another leadman.”27 During cross-examination,
asked if, at the Corcoran State Prison job, Respondent would
have utilized a project coordinator, foreman, and leadman, De-
John said “leadman, supervisor would be really kind of the
same.” Asked if there was going to be both a supervisor and a
leadman, DeJohn said, “There would be a coordinator and a
leadman” and reiterated there would not be a supervisor and a
leadman on that job—” Its the same.” DeJohn further testified
that he began his interview of Venglarcik cognizant that the
latter had applied for a sheet metal worker job.28 Asked if any
sheet metal worker jobs were available at the time, DeJohn said
“Not specific. We tend to run adds at various times just to keep
it open. . . .” In fact, according to Respondent’s Exhibit 9, Re-
spondent hired no installers until June 28 when David Schoolen
was hired as an apprentice mechanic/installer. Rather than any
sort of supervisory position and that “he came in, and I briefly
discussed . . . what our company is and who we are, and then
proceeded to ask what . . . his experiences were. . . . I was
looking at his application so it had some company names . . .
but asked for some specifics . . . . He talked about being a su-
pervisor running men on projects, several men usually, and . . .
assigning jobs . . . and then went on to explain about ordering
material, making purchases, actually working on submittals
beyond what an installer . . . would do. . . . And during that . . .
I introduced . . . we were looking for a project coordinator for
the Corcoran prison job.”5 DeJohn decided to move Venglar-
cik’s interview in this direction “mostly when asked to describe
his experiences . . . and the way [Venglarcik] was describing
them, what he was describing . . . he actually performed, know-
ing the other needs that I had . . . .” At this point, according to
DeJohn, he showed Venglarcik Respondent’s job description
for a project coordinator, and they spoke “about the items in a
little bit more detail, and then . . . I brought up the Corcoran
prison job, and he may have mentioned . . . descriptions of his
jobs, he said they were actually prison jobs. . . .” DeJohn testi-
fied that he made it clear to Venglarcik that the position Re-
spondent would consider him for was the “coordinator” job and
that the latter was aware he would not be hired as a foreman—
“I believe so . . . . I feel I conveyed that it had switched from
that to coordinator.”30 DeJohn stated that the interview con-
cluded at that point, with him having a positive feeling about

leadman, DeJohn said, “There would be a coordinator and a leadman”
and reiterated there would not be a supervisor and a leadman on that
job— “It’s the same.”
28 Asked if any sheet metal worker jobs were available at the time,
DeJohn said “Not specific. We tend to run adds at various times just to
keep it open . . . .” In fact, according to R. Exh. 9, Respondent hired no
installers until June 28 when David Schoolen was hired as an appren-
tice mechanic/installer.
29 DeJohn does not dispute that he recognized several of Venglar-
cik’s former employers as union-signatory contractors.

30 Asked what he said, DeJohn said, “Well, most of it would have
been during the course of when we were going over the document and
that position. There were inferences there, and then at the end, it was
‘Well, I’ll keep you informed on my position for that position.’”
STANDARD SHEET METAL, INC. 417
Venglarcik for the project coordinator job, and that he placed
Venglarcik’s employment application in a project coordinator
applications file, which he maintains.31 Venglarcik specifically
denied that he and DeJohn ever discussed the position of pro-
ject coordinator during this interview and, notwithstanding
DeJohn’s positive feelings, Respondent eventually hired Rich-
ard Hill “sometime in June” as the Corcoran State Prison pro-
ject coordinator. 32
While not disputing the fact that Venglarcik was called back
for another job interview in mid-August, Respondent’s wit-
nesses offered no testimony regarding the underlying circum-
stances. Thus, although acknowledging being aware of the
alleged discriminatee’s second interview, Russ DeJohn denied
any knowledge as to whose decision it was to reinterview
Venglarcik.33 Further, while confirming that he was the man-
agement official who conducted the second interview of
Venglarcik, Steve Santos denied any arrangement and sug-
gested that such was mere happenstance—“He walked in, and I
just happened to be at the counter. There was no appoint-
ment.”34 In any event, Santos, who averred that he only subse-
quently became aware “that [Venglarcik] had applied for a
position months back when [DeJohn] was interviewing for a
construction coordinator,” testified that his conversation with
Venglarcik occurred “at the front counter in the office” and
lasted no longer than 15 minutes; that they spoke of Venglar-
cik’s prior work experience, and that he told the former Re-
spondent’s shop was nonunion, an “open shop.” Asked if he
did any reference checking after speaking to Venglarcik, Santos
said, “I think the next day I asked a few employees if they had
known him.” Specifically, “I asked Manuel Martinez and Ken-
neth Maldonado,”35 and “they both said that they had worked
with him in the past. . . . Manuel . . . felt that he wasn’t up to
par and couldn’t perform the work . . . to our standards.”36 As
to Maldonado, his “opinion was that [Venglarcik] wasn’t worth
hiring.” 37 Based on these adverse recommendations, Santos
decided not to hire Venglarcik—”I didn’t feel I had a position

31 Asked why he did not place the file in his foreman/leadman file,
DeJohn stated that “my interest in him as a coordinator, I have these
other resumes, so I inserted it with those in this file.”
32 Hill specifically applied for the position, and, according to De-
John, “I felt, with his resume and the details listed in there . . . and
knowing the general contractor that we were working with on this
project . . . his qualifications would definitely handle” the job.
33 DeJohn conceded that, during his interview, Venglarcik said that
“He was open for a job.”
34 Santos placed the interview on the same date of Venglarcik’s sec-
ond application—August 14.
35 R. Exh. 9 establishes that Maldonado was not hired until 5 days
after Santos spoke to Venglarcik.
36 Martinez corroborated Santos that he was asked about Venglarcik,
with whom he had worked “years ago,” and “I just said that he was not
that good. I said he couldn’t dribble a basketball.”
37 Ken Maldonado testified that he had previously worked with both
Martinez and Venglarcik for another company and that both Santos and
Martinez spoke to him about Venglarcik, asking “how we worked
together, me and Fred.” Placing the Martinez conversation “maybe a
week or two after [being hired by Respondent]” perhaps “could have
been a month,” “[Martinez] just said Fred put in an application. . . .
And he asked me what I thought about him.” According to Maldonado,
he responded that he had worked with the alleged discriminatee while
the latter was just an apprentice, and ‘“he didn’t show me any skills . . .
that would help us out there at the prison. . . .’” According to Mal-
donado, Martinez and Santos then together asked him what he thought
about Venglarcik, and “I said he wouldn’t work out.”
to put him . . . And I didn’t feel that he had a good reference.
As to whether Respondent was hiring at the time, during cross-
examination, Santos initially averred that no sheet metal
worker/installer positions were open at the time; however, he
later admitted that three individuals (Maldonado, who was rec-
ommended for hire by Manuel Martinez38; Jason Israelian, a
former employee; and Ramiro Munoz) were hired as installers
within 2 weeks of his interview of Venglarcik. 39
As to the consolidated complaint paragraph, pertaining to
Respondent’s allegedly unlawful suspension of Charles White-
head in July, Russ DeJohn testified on behalf of Respondent
and stated that it was his decision to suspend the alleged dis-
criminatee for a week. According to DeJohn, he spoke to
Whitehead on the day of his suspension, a Friday, in his office
“in reference to the prevailing wage not being paid correctly,
and things of that nature that were ongoing complaints . . . . He
questioned why, on a prevailing wage project in El Portal . . .
[the wage rate] was not a journeyman wage rate versus an ap-
prentice wage rate.”40 DeJohn added that this “did not” cause
his suspension. Rather, “what led to [his suspension] was this
ongoing, continuing complaining, griping, not that day, but
prior to that day”— an “accumulation.” Continuing, DeJohn
testified that “the final decision was made based on the continu-
ing, ongoing complaining, disruption of work, et cetera that we
just were not going to tolerate any more.” Asked when the
final decision was made, DeJohn stated, “I couldn’t give you an
exact time, but it would have been in the afternoon sometime.”
Respondent offered no corroborative evidence for DeJohn’s
assertions nor did DeJohn offer any explanation for the remarks
in the suspension notice, which was given to Whitehead.41
With regard to the union logo T-shirt incident at the Cor-
coran State Prison, Manuel Martinez, who stated he was Re-
spondent’s supervisor42 for the job, testified that, on the morn-
38 Both Martinez and Maldonado were members of the Union, and
knew each other and Venglarcik from having worked on union jobs.
39 Russ DeJohn testified that Israelian had worked as a journeyman
sheet metal worker for Respondent during the summer of 1995 but that
he had never worked at a prison before; that Maldonado had never
worked on a prison job before; and that Munoz was hired as an installer
but was not sent to the Corcoran job.
40 Questioned with regard to the Albertson’s incident on July 11,
Manuel Martinez averred that “I really don’t know what went on” and
that he does not recall sending Whitehead home from the job. Asked if
he reported to Respondent’s office that Whitehead had caused a prob-
lem there, Martinez testified, “I might have. I don’t recall right now.”
41 During his cross-examination, asked if he ever told either Santos
or DeJohn that Whitehead had a bad or poor attitude, Manuel Martinez
said, “I think I told him, Steve Santos, more than one time that he had a
poor attitude.” Asked what this was, Martinez said, “Just gripes. His
gripes about . . . anything on a certain job.” Martinez added that
Whitehead’s suspension “didn’t have nothing to do with me . . . .”
42 DeJohn classified Martinez as Respondent’s foreman/leadman on
the Corcoran job; while the latter categorized himself as Respondent’s
supervisor on the project and Kenneth Maldonado as his leadman. In
any event, Martinez described his duties at Corcoran as ensuring “the
people go to work” and “mak[ing] sure the material gets there . . . .”
As to the former, Martinez said his job is to “line out” the crew, with
him deciding “which men I want in which building.” He added that,
while “from experience . . . I kind of know what’s going on,” his crew
does not know the jobs to do each day without him telling them and
that he bases his decision on which men to assign to the various jobs on
“their qualification and what material I have in hand to work with . . . .”
Also, according to Martinez, he “sometimes” moves personnel from job
to job. With regard to his other responsibilities, Martinez says that he
has recommended hiring certain individuals and, as with Maldonado,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 418
ing at issue, as he normally does, he spoke to the employees on
his crew at the Corcoran II work area and, while doing so, ob-
served Whitehead wearing “a tan-brown jumpsuit that zips up
from his waistline all the way to his neck.” Then, according to
Martinez, he left the work area and did not return until 2 hours
later and, on doing so, noticed that the alleged discriminatee
had taken off the jumpsuit and was working in a blue T-shirt,43
“and I questioned him about it.” Martinez reminded Whitehead
that “‘we’ve got a dress code around here.’ He came out with
an attitude. You know, ‘You going to fire me now for wearing
this shirt’ . . . . He was being loud. . . . He was washing it out
to everybody . . . . I said, ‘Charlie, what’s going on and what’s
the problem.’” Continuing, Martinez recalled that “[Whitehead]
kind of argued with me. I just kept my mouth shut, and he did
all the screaming and yelling and arguing . . . . Because he was
wearing a blue shirt, and I asked him to take it off and put his
jumpsuit back on.” Martinez further testified that “the problem
was he was saying that I was going to fire him for wearing [the
blue T-shirt]. And I was just asking him, ‘No I’m not going to
fire you for it. I want you to put your jumpsuit back on and go
back to work.’” Thereupon, according to Martinez, he tele-
phoned Steve Santos, “and I . . . told him what was going on.”
Santos instructed the foreman to send Whitehead back to the
shop “so that’s what I did.” Finally, Martinez admitted that,
during the confrontation, Whitehead pointed at another em-
ployee, who was wearing a blue shirt that day—Adam Bernal.
Martinez, who denied having explained the dress code to Ber-
nal, turned to the latter and “told him he needed to . . . start
wearing other shirts than the color he’s wearing . . . .” Bernal
asked if he should go home, and Martinez asked if he was go-
ing to comply with the dress code from then on. Bernal said he
would, and “that was it with Adam.”44
During cross-examination, Martinez described Whitehead’s
T-shirt as being blue with Union covered with union logos.
Asked what was causing Whitehead to be so upset during their
confrontation, Martinez first asserted he became upset over
having to remove the blue shirt and then asserted, “He was
upset because he thought was firing him.” However, Martinez
then conceded that what Whitehead was yelling and screaming
about concerned his objection to having to remove his Union
logo T-shirt—” Yeah, that’s probably what he said.” Further,
during cross-examination, with regard to Adam Bernal, Marti-
nez admitted he was not a new employee. Rather, Bernal had
worked for Respondent 4 or 5 years prior to the Corcoran job

Steve Santos has followed some of his recommendations; that he is
authorized to send workers back to Respondent’s shop for disciplinary
or other reasons; and that he is empowered to permit employees to
leave work early. Martinez further testified that the extent of a fore-
man’s authority is dependent on his experience (I would say that’s
probably the way it works) and that newly hired foreman would not
have the extent of supervisory authority given to him.
With regard to Maldonado’s status as Martinez’ leadman, notwith-
standing his earlier testimony, DeJohn conceded that Maldonado was
also a foreman/leadman on the Corcoran job. Asked if he would clas-
sify Martinez and Maldonado the same, DeJohn said, “For a given
building, the way the job’s being run, you could say that.” DeJohn
maintained that leadman and foreman are interchangeable positions and
did not know if Maldonado was ever told he was a foreman.
43 Martinez described the Corcoran State Prison dress code for con-
tractors as prohibiting blue shirts, black shirts, and blue and black jeans.
44 Unlike Whitehead, Martinez did not enforce the dress code against
Bernal that day “because he had just started working for us .”
and had been rehired prior to the prison job, working in the
shop and at another job before being transferred to Corcoran.
Russ DeJohn testified that he became aware of the T-shirt
incident on being informed by Santos that Whitehead had been
sent back to the shop from Corcoran and that he did have a
conversation with Whitehead in Respondent’s office later.
According to DeJohn, the conversation began with Whitehead
asking why he was sent back to the shop and was he being
fired. DeJohn replied that he was not being fired, that he was
dressed in violation of the dress code, and that he would need to
dress properly in order to return to work. Whitehead replied
that others were dressed as he was and asked why he was being
singled out. DeJohn responded that his shirt was the wrong
color and that he had to change it. Whitehead refused, asking if
he was going to be fired. DeJohn repeated that he was not being
fired but just had to adhere to the dress code. DeJohn further
testified that, from that point, the conversation seemingly just
repeated itself. Finally, he and Ray Griesner told Whitehead
“that he can . . . stay there and work in the shop or change and
go back to Corcoran. DeJohn also stated that, during the con-
versation, Whitehead asked if there would have been a problem
if the T-shirt was white with the identical union logos and writ-
ing, and he replied, “Well, its the navy blue colors are a prob-
lem . . . you could not wear blue, black, or orange.” Further,
DeJohn specifically denied telling Whitehead he had to change
his shirt in order to work in the shop. Finally, Respondent
failed to call Ray Griesner as a witness with regard to what he
allegedly said to Whitehead on the latter’s arrival at Respon-
dent’s facility.
B. Legal Analysis of Alleged Unfair Labor Practices
Initially, with regard to the consolidated complaint allegation
that, on or about May 30 and since said date, Respondent has
unlawfully refused to hire Fred Venglarcik, analysis of the
respective credibility of the principal witnesses is required. In
this regard, I was impressed by the testimonial demeanor of the
alleged discriminatee, who, at all times, appeared to be testify-
ing in an entirely candid and straightforward manner. In con-
trast, I found that neither Russ DeJohn nor Steve Santos exhib-
ited the same degree of candor, as did Venglarcik, while testify-
ing, and, instead, appeared to be testifying in a manner de-
signed to bolster Respondent’s defense to the above unfair la-
bor practice allegations. Accordingly, whenever their respec-
tive testimony has been in conflict, I credit the testimony of
Venglarcik over that of DeJohn and Santos and shall rely on the
former’s version of what occurred.45 Therefore, I find that, on
answering Respondent’s advertisement for an installer/ lead-
man46 and obtaining an employment application, Venglarcik
45 I shall rely on the testimony of DeJohn only when uncontroverted
or corroborated by other record evidence.
46 Par. 6(a) of the consolidated complaint and counsel for the Gen-
eral Counsel allege that a question asked by a woman, to whom
Venglarcik spoke, by telephone, when he answered Respondent’s ad-
vertisement, constituted unlawful interrogation, violative of Sec.
8(a)(1) of the Act. The individual, characterized by counsel for the
General Counsel as Respondent’s receptionist, is alleged in the consoli-
dated complaint to be an agent of Respondent. However, there is not a
scintilla of evidence in the record as to the woman’s identity, her posi-
tion, her duties, or, indeed, her relationship to Ray Griesner or any
other management official. The most recent case, cited by counsel for
the General Counsel in support of the consolidated complaint allega-
tions, notes that “the test for agency is whether, under all the circum-
stances, an employee would reasonably believe that the alleged agent
STANDARD SHEET METAL, INC. 419
completed the application on which he requested a job as a
sheet metal worker, returned with it to Respondent’s Fresno
shop and office facility, and spoke to Ray Griesner, the owner;
that, after reviewing the document, Griesner asked Venglarcik
what work he had done for each of the listed former employers,
many of which were union signatory contractors; that, then,
Griesner “asked me if I was still a member of the Union; and
that, after Venglarcik said no, Griesner asked if he . . . had . . .
ever worked at a non-union establishment.” I further find that,
approximately a week later, the alleged discriminatee was in-
terviewed by Russ DeJohn in the latter’s office; that, without
being specific, Venglarcik said he just wanted a job; that, after
questioning Venglarcik about his previous employers and the
jobs on which he worked as a foreman, DeJohn said that Re-
spondent was seeking someone with experience working at
prisons and asked if the former had ever been a foreman on a
prison job; that, after Venglarcik answered affirmatively, De-
John handed him a copy of Respondent’s foreman/leadman job
description and said the latter’s work experience qualified him
for the position; that, after discussing salary, DeJohn asked the
alleged discriminatee about his membership in the Union and,
searching through papers on his desk, said “there was some sort
of form . . . I needed to sign to waive my Union affiliation”;
and that the meeting ended with DeJohn saying he would re-
view Venglarcik’s application with Griesner and some “associ-
ates there.” Next, I find that, a week later, Venglarcik tele-
phoned DeJohn, who told the former his application had been
reviewed and “they were still working on something about my
Union affiliation . . . . and they were trying to work around [it]”
and that, after Venglarcik asked if his union membership was
adversely affecting his hiring prospects, DeJohn responded “not
in a direct way that it was, but in a way it was.” Also, I find
that, in mid-August, subsequent to the filing of the instant rep-
resentation election petition by the Union, on receiving a tele-
phone page from Respondent and being informed by an uniden-
tified individual that he was still being considered for a position
and that Respondent wanted him to return for another inter-
view, Venglarcik returned to Respondent’s office; that he was
approached by Steve Santos, who requested that he complete
another employment application; that Venglarcik did so in front
of Santos; that, while the former was writing, Santos “wanted
to know if I ever ran work as a foreman” and “asked me if I had
ever worked in a non-union shop”; and that Santos then ex-
plained some of the job duties of Respondent’s foremen and
said he would speak to Griesner about hiring the alleged dis-
criminatee. Finally, I find that while, at the time Venglarcik
was interviewed by Griesner and DeJohn, there were no jobs
available for installers or foremen/leadmen,47 there were lead-

was speaking for management and reflecting company policy.” House
Calls, Inc., 304 NLRB 311 (1991). Further, in both House Calls, Inc.
and Diehl Equipment Co., 297 NLRB 504 (1989), the Board based its
finding of apparent authority on the position and job responsibilities of
the alleged agents, and, in particular, I note that Venglarcik had no idea
as to the identity or job responsibility of the woman, with whom he
spoke. Thus, other than the content of the woman’s question, there is
no evidence herein on which to make any findings as to apparent au-
thority. Accordingly, as there is insufficient evidence to establish that
Venglarcik could reasonably have relied upon the individual as speak-
ing on behalf of Respondent as its agent, I must recommend dismissal
of par. 6(a) of the consolidated complaint.
47 The record establishes that Respondent did not hire an installer un-
til the end of June and that it planned to utilize Manual Martinez as its
foreman at Corcoran State Prison. Further, while a leadman was even-
man and installation jobs available at the time of his interview
by Santos.
In determining whether Respondent acted unlawfully by fail-
ing and refusing to hire Fred Venglarcik, I must utilize the ana-
lytical framework, set forth by the Board in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983), and in Lewis
Mechanical Works, 285 NLRB 514 at 514 (1987). Thus, in
order to prove a prima facie violation of Section 8(a)(1) and (3)
of the Act, the General Counsel has the burden of establishing
that the alleged discriminatees engaged in union activities; that
Respondent had knowledge of such conduct; that Respondent’s
actions were motivated by union animus; and that the dis-
charges and layoffs had the effect of encouraging or discourag-
ing membership in the Union. WMRU-TV, 253 NLRB 697, 703
(1980). Further, the General Counsel has the burden of proving
the foregoing matters by a preponderance of the evidence.
Gonic Mfg. Co., 141 NLRB 201, 209 (1963). However, while
the above analysis is easily applied in cases in which a respon-
dent’s motivation is straightforward, conceptual problems arise
in cases in which the record evidence discloses the presence of
both a lawful and an unlawful cause for the allegedly unlawful
conduct. In order to resolve this ambiguity, in Wright Line,
supra, the Board established a causation test in all 8(a)(1) and
(3) cases involving employer motivation. “First, we shall re-
quire that the General Counsel make a prima facie showing
sufficient to support the inference that protected conduct was a
‘motivating factor’ in the employer’s decision. Once this is
established, the burden will shift to the employer to demon-
strate that the same action would have taken place even in the
absence of the protected conduct.” Id. at 1089. Three points
are relevant to the foregoing analytical approach. First, in con-
cluding that the General Counsel has established a prima facie
showing of unlawful animus, the Board will not “quantitatively
analyze the effect of the unlawful motive.The existence of such
is sufficient to make a discharge a violation of the Act.” Id. at
1089 fn. 4. Second, once the burden has shifted to the em-
ployer, the crucial inquiry is not whether Respondent could
have engaged in the discharges and layoffs here, but, rather,
whether Respondent would have done so in the absence of the
alleged discriminatees’ union activities and support. Structural
Composites Industries, 304 NLRB 729 (1991); Filene’s De-
partment Stores, 299 NLRB 183 (1990). Third, pretextual dis-
charge cases should be viewed as those in which “the defense
of business justification is wholly without merit” (Wright Line,
supra at 1084 at fn. 5), and the “burden shifting” analysis of
Wright Line need not be utilized. Arthur Anderson & Co., 291
NLRB 39 (1989). Finally, in alleged hiring discrimination
cases, such as involved here, in order for counsel for the Gen-
eral Counsel to meet her burden of proof, it is necessary that
she establish the availability of a job, which was denied to the
alleged discriminatee. Casey Electric, 313 NLRB 774 at 774
(1994).
Here, I believe that counsel for the General Counsel has met
her burden of proof that Respondent was unlawfully motivated
in failing and refusing to hire Venglarcik as an air-conditioning

tually hired for that job, DeJohn was uncontroverted that, as of late
May and June, Respondent had not yet clarified its hiring plans for the
hiring of a leadman for the prison job.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 420
installer in August.48 At the outset, Respondent is a nonunion
contractor, and the alleged discriminatee has been a member of

48 Venglarcik applied for a sheet metal worker job. During his inter-
view, by DeJohn, the alleged discriminatee told the former he just
wanted a job and, clearly, the interview began as one for a sheet metal
worker/air-conditioning installation job, a position for which Respon-
dent normally retained the names of qualified applicants. While the
interview obviously then evolved into one for a foreman/leadman posi-
tion and the matter is not free from doubt, I believe that, as Venglarcik
was qualified and willing to perform installation work and as DeJohn
acknowledged Venglarcik’s proficiency for said job by speaking to him
about a foreman/leadman position, the interview must be considered as
being for both positions. However, to the extent that Respondent failed
and refused to hire Venglarcik as a sheet metal worker in late May or
early June, I note that there do not appear to have been any journeyman
sheet metal worker or air-conditioning installation positions available at
the time of his application and interviews. On this point, Respondent’s
records reveal that no installers were hired until, at least, the end of
June. Accordingly, counsel for the General Counsel has not met her
burden of proof on this issue.
As to the foreman/leadman position, while each of Respondent’s in-
cumbent foremen/leadmen, including Artist Morgan and Manuel Mar-
tinez, was included, by Respondent, on the voter eligibility list and
while each voted without challenge, the Board has long held that, not-
withstanding litigation in an underlying representation matter, a ques-
tion of supervisory status may always be relitigated in an accompany-
ing unfair labor practice matter (Adco Electric, 307 NLRB 1113, 1119
(1992)), and the law must be equally applicable in these circumstances.
Therefore, as to the merits, it seems clear to the undersigned that those
in the position of foreman/leadman for Respondent exercise the author-
ity of supervisors within the meaning of Sec. 2(11) of the Act, with the
extent of their authority wholly dependent upon their tenure with Re-
spondent. Thus, both Manuel Martinez, who has been employed by
Respondent for 5 years, and Artist Morgan, who had been employed by
Respondent for less than a year, were classified as foremen. While the
extent of the latter’s supervisory authority appears to have been limited
to, within his discretion and independent judgment, assigning work to
employees on his crew and reassigning them to other work if they were
not performing the original assignment to his satisfaction, Martinez
possesses authority not only to assign work within his discretion but
also to grant time off and to discipline employees by removing them
from jobsites and sending them back to Respondent’s shop. Martinez
explained the difference in their authority as nothing more than a func-
tion of job tenure. Sec. 2(11) of the Act is phrased in the disjunctive,
and possession of any one of the enumerated indicia of supervisory
status provides a sufficient basis for finding supervisory authority as
long as the exercise of such is not routine but requires the use of inde-
pendent judgment. Northcrest Nursing Home, 313 NLRB 491 (1993);
Adco Electric, supra at 1120. The authority to assign work is one of the
indicia of supervisory authority. While I recognize that the Board
seems loathe to find individuals, who merely independently assign
work on job sites and possess no other indicia of supervisory status, to
be statutory supervisors (S.D.I. Operating Partners, L.P., 321 NLRB
111 (1996)), Respondent’s foremen appear to gain additional such
authority (the power to grant time off and to discipline) over time.
Inasmuch as it would be disingenuous to categorize individuals, in the
same job classification, as statutory supervisors or not depending only
on their job tenure and as using one’s discretion in assigning work is an
indicia of supervisory authority (Debber Electric, 313 NLRB 1094,
1095 (1994)), I believe that a foreman for Respondent must be classi-
fied as a supervisor within the meaning of the Act. Accordingly, as
“the Board has long held that individuals applying for supervisory
positions must be treated as supervisors . . . and not as employees under
the Act” (Ace Machine Co., 249 NLRB 623, 634 (1980)), to the extent
that Respondent may have been unlawfully motivated in failing and
refusing to hire Venglarcik for this position in June and August, such
was not violative of Sec. 8(a)(1) and (3) of the Act. Finally, assuming,
arguendo, that the foreman/leadman position for Respondent is non-
the Union for, at least, 10 years. In this regard, I believe that,
notwithstanding Venglarcik’s denial of current union member-
ship to Ray Griesner, given his prior employment by union
signatory contractors, a fact about which Griesner49 and DeJohn
were aware, Respondent suspected his continued membership.
Thus, after reviewing the prior employers, listed, by Venglar-
cik, on his employment application, Ray Griesner, the owner of
Respondent, asked him if continued to be a member of the Un-
ion. Likewise, after discussing the alleged discriminatee’s
previous work experience, Russ DeJohn asked Venglarcik
about his union affiliation. “Interrogation of prospective em-
ployees [about their union sentiments] by a high company offi-
cial is definitely coercive and interferes with an employee’s
rights.” NLRB v. Tesoro Petroleum Corp., 431 F.2d 95, 96 (9th
Cir. 1970).50 Moreover, such signifies the employer’s “signifi-
cant” aversion to the employment of prounion applicants and,
therefore, the questions, posed by Griesner and DeJohn, were
violative of Section 8(a)(1) of the Act. American Signcrafters,
319 NLRB 649, 651 (1995); Lewis Mechanical Works, supra at
519. Further, Griesner and, later, Steve Santos questioned
Venglarcik as to whether he had ever worked at a nonunion
shop. Said questions represent coterminous inquiries regarding
either the alleged discriminatee’s membership in the Union or
his willingness to work for a nonunion contractor; in either
case, such interrogation of an employment applicant is inher-
ently coercive and blatantly violative of Section 8(a)(1) of the
Act. Casey Electric, supra at 785; Honda of Hayward, 307
NLRB 340, 349 (1992).51
Besides by the foregoing unlawful interrogation of Venglar-
cik, Respondent’s longstanding antipathy52 toward the Union, is
demonstrated by other statements, made to him by DeJohn. In
this regard, during the employment interview, DeJohn told
Venglarcik that he would have to sign a form, waiving his un-
ion affiliation. “It is axiomatic that such agreements and their
solicitation are barred under the 8(a)(1) prohibition of coercion
directed at employee exercise of rights protected by Section 7.”
Eddyleon Chocolate Co., 301 NLRB 887 at 887 (1991). Ac-
cordingly, DeJohn’s comment was coercive and violative of
Section 8(a)(1) of the Act. Also, during their subsequent tele-
phone conversation, DeJohn told Venglarcik that Respondent
was “trying to work around” the latter’s union membership,
and, when asked, by Venglarcik, if his union membership was
detrimental to his chances of being hired, DeJohn indirectly
said that it was. The Board has held that any statement, by an

supervisory, there is no record evidence that such a position was open
in late May or early June. Rather, the need for a second fore-
man/leadman for the Corcoran project had not yet been determined.
49 The fact that Griesner examined Venglarcik’s list of previous em-
ployers on his employment application and immediately asked about
his union membership patently establishes Griesner’s recognition that
Vanglaracik had worked for union signatory contractors.
50 Inasmuch as I believe DeJohn’s interview of Venglarcik was for
both an installation position and a foreman/leadman position, I find
DeJohn’s interrogation of Venglarcik to have been violative of Sec.
8(a)(1) of the Act.
51 Inasmuch as I view Santos’ interview of Venglarcik as also having
been for both a leadman position and an installer position, the former’s
union-related interrogation of Venglarcik was unlawful.
52 Charles Whitehead was uncontroverted that, some time during the
fall of 1995, Manuel Martinez warned him that, if he were seen speak-
ing to union officials on a jobsite, he would be sent home for the day.
Noting Martinez’ failure to deny the warning, I credit Whitehead’s
testimony.
STANDARD SHEET METAL, INC. 421
employer, linking possible employment of an applicant to his
union activity, is violative of Section 8(a)(1) of the Act, and I
so find here. Ristorante Donatello, 314 NLRB 693, 694
(1994).53 Finally, Respondent’s own hiring records establish
that, in August, there were installation jobs available, which
were filled shortly after Venglarcik was interviewed by Steve
Santos. In view of the foregoing, I believe that counsel for the
General Counsel has made a prima facie showing that, in mid-
August, Respondent was unlawfully motivated in failing and
refusing to hire Venglarcik for an air-conditioning installation
position.
As to whether it has met its burden of proof and established
that it would have refused to hire Venglarcik notwithstanding
his membership in the Union, Respondent’s position appears to
be nothing more than a canard. Thus, having credited the al-
leged discriminatee’s version of the facts, specifically that he
was invited back for an August interview, and placing no cre-
dence in the contrasting testimony of either DeJohn or Santos, I
believe that, as the Corcoran State Prison job was about to
commence and as Respondent was in need of installers and a
leadman, the two management officials and, possibly, Griesner
decided that Santos should reinterview Venglarcik for both
jobs54 and that, in so doing, Santos was well aware of the al-
leged discriminatee’s union membership. The latter did, of
course, interview Venglarcik and, subsequently, sought opin-
ions of the alleged discriminatee’s work.55 While Santos testi-
fied that he decided not to hire Venglarcik based on poor refer-
ences and a lack of available positions, neither Manuel Marti-
nez nor Ken Maldonado, the two references, had any recent
knowledge of Venglarcik’s work record or skills and Respon-
dent’s hiring records establish that no less than two installers
were hired in the same time period. In short, I can give no
credence to the testimony of Steve Santos in these regards.
What seems more likely is that Respondent, keenly aware of
the ramifications of the pending representation election petition
and notwithstanding its hiring needs, decided against hiring
Venglarcik as an air-conditioning installer solely because he
was viewed as a potential supporter of the Union. Accordingly,
I find that Respondent’s defense is without merit and that its
failure and refusal to hire Fred Venglarcik in August was viola-
tive of Section 8(a)(1) and (3) of the Act.

53 For the reasons set forth above in fn. 50, I find all union-related
statements, made to Venglarcik by DeJohn, to have been unlawful.
54 This, I believe, was the mechanism through which Venglarcik
came to be called back by Respondent for another interview. Rather
than being buried in the project coordinator file, where it undoubtedly
would never have been found, Venglarcik’s employment application
must have been in either a foreman/leadman applications file or an
installer applications file. Said application must have been pulled when
Respondent began staffing for the Corcoran job.
55 The fact that Santos sought the opinions of Martinez and Mal-
donado, who was hired after Santos’ interview of Venglarcik, with
regard to the latter’s sheet metal work ability convinces me that Santos
interviewed and considered hiring Venglarcik as an installer. Thus,
DeJohn and Martinez each testified that Maldonado was hired as the
leadman at Corcoran. As such a position was no longer open, the logi-
cal inference is that Santos sought Maldonado’s evaluation of Venglar-
cik because the latter remained under consideration for hire as an in-
staller. Finally, I reiterate that DeJohn felt the alleged discriminatee was
well qualified to be a foreman. It is difficult to understand how he
could be qualified for such a position without being qualified to per-
form journeyman’s work.
I turn next to the consolidated complaint allegation that, in
July, Respondent suspended Charles Whitehead in violation of
Section 8(a)(1) and (3) of the Act. In determining whether
Respondent’s conduct was unlawful, I again engage in an
analysis consistent with the Board’s Wright Line, supra, guide-
lines and note that, in order to establish a prima facie violation
of the Act, the General Counsel must establish that said suspen-
sion was unlawfully motivated by Whitehead’s suspected sup-
port for the Union. As to this, Whitehead was uncontroverted,
and I find, that he was the employee, who started the Union’s
recognition campaign amongst Respondent’s employees and
that, from May through July, he spoke to employees about the
Union and distributed authorization cards. Further, Whitehead
was uncontroverted, and I find, that, on July 11, during a break
period at a job at an Albertson’s grocery market in Fresno, he
engaged in a verbal disagreement with his foreman, Manuel
Martinez, regarding the Union and the benefits of working in a
union shop. Martinez admitted that he might have reported to
Respondent’s office that Whitehead had caused a problem, and,
the next day, Whitehead was given a 1-week suspension by
Russ DeJohn. In my view, as it has long been a tenet of Board
law in discrimination cases “that the timing of the [employer’s
conduct] is strongly indicative of animus,” Whitehead’s sus-
pension, coming 1 day after his argument with Martinez, is
suggestive of unlawful animus. Electronic Data Systems Corp.,
305 NLRB 219, 220 (1991); Structural Composites Industries,
304 NLRB 729 at 729 (1991). Moreover, I am convinced that
Respondent’s stated reasons for the suspension were merely
pretextual, and “it is . . . well settled . . . that when a respon-
dent’s stated motives for its actions are found to be false, the
circumstances . . . warrant the inference that the true motive is
an unlawful one that the respondent desires to conceal.” Fluor
Daniel, Inc., 304 NLRB 970 at 970 (1991); Shattuck Den Min-
ing Corp.v. NLRB, 362 F.2d 466 (9th Cir. 1966). Thus, while
the suspension notice itself states, as reasons for the suspension,
a negative attitude toward Respondent’s training program and a
“current work load slow down,” Respondent failed to offer a
scintilla of evidence in support of either assertion. Further,
while Russ DeJohn maintained that his decision was based on
Whitehead’s continued complaining and a resulting disruption
of work, Respondent offered no supporting evidence of either
constant complaining by Whitehead or of any resulting disrup-
tions of work. In the foregoing circumstances, including the
unlawful animus shown toward Venglarcik and Martinez’
comment to Whitehead in late 1995, I believe the record war-
rants the conclusion that Respondent’s true motivation for its
suspension of Whitehead was the latter’s union activities. Ac-
cordingly, Respondent’s suspension of him was violative of
Section 8(a)(1) and (3) of the Act.
With regard to union logo T-shirt incident at the Corcoran
State Prison and the consolidated complaint allegation that, on
September 13, Whitehead was removed from the job in viola-
tion of Section 8(a)(1) and (3) of the Act, given the conflicting
versions of Whitehead and Martinez as to what occurred on the
jobsite, a credibility resolution is required. As to this, having
observed both individuals as witnesses, by his demeanor, I
found Whitehead to have been the more candid witness. More-
over, I note that, during cross-examination, after repeating his
direct examination assertion that, on the morning at issue,
Whitehead “was upset because he thought I was going to fire
him,” Martinez conceded that what Whitehead was yelling and
objecting to that day was the former’s demand that he remove
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 422
his union logo T-shirt. Accordingly, crediting the testimony of
Whitehead, I find that, prior to reporting to the Corcoran State
Prison, he was aware of the requirement that Respondent’s
employees could not wear blue, black, or orange clothing; that,
on the morning of September 13, he was wearing a dark blue
union logo T-shirt and blue jeans, with both items covered by
beige coveralls; that, at approximately 8:30 a.m. in the morn-
ing, another employee drove to the jobsite in a company deliv-
ery truck; that the driver was wearing a shirt with a “vote no”
button attached to the pocket of the shirt; that, in response,
Whitehead removed his coveralls, exposing his blue union logo
T-shirt, and commenced working. I further find that, an hour
later, Martinez approached, saying Whitehead could not wear
such a shirt while working and he had to take it off; that, after
Whitehead said he was wearing what he wore to work, Marti-
nez said he could not work, wearing that T-shirt; that, loud
enough for his fellow employees to hear, Whitehead shouted
that Martinez was saying he could not work in a union logo T-
shirt; that Martinez denied having kicked Whitehead off the job
and said he only wanted Whitehead to remove the T-shirt; that,
after some back and forth arguing, Whitehead removed the T-
shirt and said he could not work without a T-shirt; that Marti-
nez then ordered Whitehead to put on his T-shirt and coveralls;
that Whitehead refused to put on his coveralls as it was too hot
and as he desired to voice his union sympathies; that another
employee then pointed out that Martinez himself was wearing a
“vote no” button; that Martinez offered to remove it and again
asked Whitehead to remove his T-shirt; and that, after White-
head refused, Martinez ordered him to leave the job and to
report to Respondent’s office and shop facility in Fresno.
Once again engaging in an analysis consistent with the
Wright Line, supra, guidelines, I believe that the General Coun-
sel has made a prima facie showing that Respondent was un-
lawfully motivated in ordering Whitehead off the Corcoran
State Prison jobsite that morning. Thus, Whitehead was, of
course, the employee-organizer of the union campaign, and
Respondent, especially Martinez, was well aware of White-
head’s prounion sympathies. Moreover, given what I have
concluded was a suspension resulting from his support for the
Union, Respondent’s unlawful animus toward Whitehead was
palpable. Further, I believe Martinez’ attitude, on September
13, resulted from the union logo on Whitehead’s T-shirt and not
from its dark blue color. Thus, during their confrontation,
while he undoubtedly knew he should not have been wearing a
blue T-shirt, Whitehead continually insisted that Martinez was
demanding he remove his T-shirt because of its logo, an
accusation never denied by Martinez. That Martinez was
concerned with the union logo on the T-shirt is further
demonstrated by his offer to remove his own “vote no” button
in return for Whitehead’s removal of his T-shirt. Finally,
clearly demonstrative of unlawful animus, Respondent’s
defense appears to be blatantly pretextual. Thus, while
Martinez insisted that his reaction to Whitehead’s T-shirt was
based on its dark blue color and not its union logo, he conceded
taking no action against another employee, Adam Bernal, who
was also wearing a dark blue T-shirt that day and who,
Martinez admitted, was not a new employee, having worked for
Respondent on a prior occasion. In these circumstances, I
believe that Martinez’ removal of Whitehead from the
Corcoran State Prison jobsite was motivated by the latter’s
union sympathies and activities and was, therefore, violative of
Section 8(a)(1) and (3) of the Act.

As to the consolidated complaint allegations that Respondent
engaged in several acts, violative of Section 8(a)(1) of the Act,
I initially discuss Whitehead’s uncontroverted testimony, which
I credit, that, on September 13, after being removed from the
Corcoran State Prison jobsite and then returning to Respon-
dent’s office and shop facility in Fresno, he encountered Ray
Griesner, who, on noticing Whitehead’s union logo T-shirt,
yelled, “Get out of my office. Get out of my shop with shirt
on.” Further, relying on the testimony of Whitehead over that
of the significantly less candid Russ DeJohn, I find that, imme-
diately after Griesner’s demand, DeJohn walked out of Re-
spondent’s office and also “stated that [Whitehead] could not
wear this shirt on the job” and that, during a later meeting with
DeJohn, the latter reiterated, to Whitehead, “Was out of dress
code for the company and . . . I needed to change my shirt and .
. . if I did so, I could continue working in the shop for the rest
of the day.” The right of employees to wear union insignia,
while working, as a form of expression is protected by Section
7 of the Act. Republic Aviation Corp. v. NLRB, 324 U.S. 793,
801–803 (1945). However, an employer may limit or ban for-
ever the wearing of union insignia at work if “special circum-
stances” exist. Mack’s Supermarkets, 288 NLRB 1082, 1098
(2988). The burden was on Respondent to establish the exis-
tence of special circumstances in its shop; however, no such
evidence was adduced at the hearing. Accordingly, by demand-
ing that Whitehead remove his union logo T-shirt as a condition
for continuing to work in the shop, Griesner and of DeJohn
engaged in conduct violative of Section 8(a)(1) of the Act.
Northeast Industrial Service Co., 320 NLRB 977 (1996); Island
Counties Legal Services, 317 NLRB 941 (1995).
Next, various comments and questions, directed at White-
head by Steve Torres during the 5-week period commencing on
July 19, are alleged as violative of Section 8(a)(1) of the Act.
As between Whitehead and Torres, notwithstanding the limited
testimony of the latter, he failed to exhibit the candor of an
honest witness and, therefore, I shall credit and rely on the
more straightforward Whitehead. Thus, I find that, at least 10
times during the above time period Torres approached White-
head and posed questions, such as “Where do you guys meet
with the Union?” and “what we thought about the union in-
volvement in the shop.” There is no record evidence that Tor-
res, who initiated the questioning and is Respondent’s admitted
agent, and Whitehead were friends; that Torres had any legiti-
mate purpose in asking such questions, or that he gave White-
head any assurances against reprisals. Further, inasmuch as
some, if not all, of these questions may have been posed prior
to the filing of the election petition—at a time when the em-
ployees could be expected to have maintained secrecy regard-
ing the Union and at a time immediately after Whitehead’s
suspension, which was motivated by his union sympathies,
rather than the casual and innocuous union-related conversa-
tions, which occur in a workplace environment, Torres’ ques-
tions appear to have been clearly coercive. In these circum-
stances, I believe Torres’ questions were violative of Section
8(a)(1) of the Act. Twin City Concrete, 317 NLRB 1313, 1317
(1995); Cal Western Transport, 316 NLRB 222 at 222 (1995).56
Also, on another occasion during the above time period, White-
56 The consolidated complaint alleges, as unlawful interrogation,
various Union-related questions, posed to Artist Morgan by Steve Tor-
res subsequent to the filing of the instant election petition. Inasmuch as
I believe Morgan was a supervisor within the meaning of Sec. 2(11) of
the Act, such interrogation was not unlawful.
STANDARD SHEET METAL, INC. 423
head was having lunch with another employee when Torres
approached and began speaking about his own involvement
with the Union. Whitehead walked away toward the timecard
rack, and Torres followed. Catching up with the former, Torres
said, “You know, if the shop decides to go union, Ray will just
close the doors.” It is, of course, well settled that threats of
plant or business closure during an organizing campaign are
coercive and violative of Section 8(a)(1) of the Act, and I so
find here. Baby Watson Cheesecake, 320 NLRB 779, 786
(1996); Nu-Skin International, 320 NLRB 385, 391 (1996).
Finally, I turn to the consolidated complaint allegation that
Respondent engaged in surveillance of employees’ union ac-
tivities by videotaping a union demonstration outside its office
and shop facility in Fresno. In this regard, there is no dispute
that, one afternoon in August subsequent to the filing of the
election petition, individuals, including officials of the Union,
engaged in a demonstration on the public street in front of Re-
spondent’s facility; that the individuals carried no placards or
signs; that, at no time, did the demonstrators trespass on Re-
spondent’s property; that Steve Torres videotaped the demon-
stration; and that an individual, identified by Torres as Paul
Bidard, can be seen on the videotape, speaking to some of the
demonstrators. While Torres testified that Bidard is an em-
ployee of a neighboring company, a Paul Bedard was listed by
Respondent on its election eligibility list, and, based on my
prior evaluation of Torres’ credibility, I believe that the indi-
vidual, viewed in the videotape is the same individual, whom
Respondent listed as an eligible voter. Inasmuch as such activ-
ity tends to intimidate employees by causing them to fear repri-
sal, it is unlawful to photograph or videotape employees, who
are engaging in protected concerted activity. Sonoma Mission
Inn & Spa, 322 NLRB 898 (1997); F. W. Woolworth Co., 310
NLRB 1197 (1993). While videotaping or photographing in
order to document a trespass claim may be justifiable, doing so
in the mere belief that something “might happen” does not
justify an employer’s conduct when balanced against the ten-
dency of the conduct to interfere with employees’ right to en-
gage in concerted activity. Casa San Miguel, 320 NLRB 534,
538 (1995); Ordman’s Park & Shop, 292 NLRB 956 (1989).
Here, at least one employee was videotaped by Torres, and, as
Respondent offered no justification for Torres’ actions, Re-
spondent must be found to have violated Section 8(a)(1) of the
Act.
The Representation Election
The Objections

The Union’s second, third, fourth, and fifth objections to the
conduct of the secret-ballot election, which was held on Sep-
tember 17, 1996, are identical to various allegations of the con-
solidated complaint. Thus, in its second objection, the Union
asserts that Steve Torres communicated to employees that,
should the Union win the election, Ray Griesner would close
down the business. I have previously concluded that, in fact,
Torres, Respondent’s admitted agent, did utter such a threat to
Charles Whitehead and that, thereby, Respondent engaged in
conduct violative of Section 8(a)(1) of the Act. However,
Whitehead was only able to recall that Torres uttered his warn-
ing some time during the 5-week period, which commenced
July 19. In these circumstances, one may not conclude with
any certainty, that Torres made this comment on or prior to
August 5, the date on which the Union filed its petition for the
election and the start of the so-called critical period preceding
the election. Accordingly, I must conclude that this objection is
without merit. The Union’s third objection concerns interroga-
tion of employees, regarding their union sympathies and activi-
ties, by Steve Torres. Conerning this, I have previously con-
cluded that, several times during the 5-week period which
commenced on July 19, Torres questioned Charles Whitehead
as to where employees were meeting with the Union and as to
what the employees thought about their involvement with the
Union and that such interrogation was coercive and violative of
Section 8(a)(1) of the Act. While Whitehead was no more
specific about the timing of this type of interrogation, which
occurred, at least, 10 times, inasmuch as Whitehead recalled
that these incidents occurred throughout the 5-week period, one
may reasonably conclude that some of Torres’ interrogation
occurred subsequent to the filing of the election petition and,
hence, during the critical period prior to the election. In these
circumstances, I find merit to the Union’s third objection.
The Union’s fourth objection asserts that, through the use of
a videotape camera, Respondent engaged in surveillance of its
employees’ protected concerted activities. In this regard, I have
concluded that Respondent engaged in conduct, violative of
Section 8(a)(1) of the Act, by videotaping a Union-related
demonstration on the public street in front of its Fresno facility
one afternoon subsequent to the filing of the election petition.
There is no dispute that Respondent’s agent Torres was the
individual, who performed the videotaping, and that, at least
one employee, Paul Bedard, may be viewed on the videotape,
speaking to union officials. As I have concluded that said con-
duct was unlawful, I find merit to this objection. Finally, the
Union’s fifth objection concerns the Charles Whitehead T-shirt
incident on September 13, 4 days prior to the day of the elec-
tion. I have concluded that, on this day, Manuel Martinez
unlawfully, in the presence of other employees, removed
Whitehead from the Corcoran prison job based on the latter’s
refusal to work without wearing a union logo T-shirt and that,
on Whitehead’s return to Respondent’s facility, both Ray Gri-
esner and Russ DeJohn unlawfully threatened not to permit him
to work there unless he removed the T-shirt. I have found Re-
spondent’s above-described acts and conduct to have been co-
ercive and violative of Section 8(a)(1) and (3) of the Act.
Therefore, I find merit to the Union’s fifth objection.
The Union’s third, fourth, and fifth objections to the election
are identical to certain allegations of the consolidated com-
plaint, which I have found to constitute unfair labor practices.
Thus, I have found said objections to be meritorious. In these
circumstances, I find that Respondent’s conduct was suffi-
ciently serious to have destroyed the laboratory conditions,
which are required for unfettered selection of a bargaining rep-
resentative, and to warrant setting aside the September 17, 1996
election. Accordingly, I remand Case 32–RC–4199 to the Re-
gional Director for Region 32 for the purpose of conducting a
new election at such time as he deems circumstances permit the
free choice of a bargaining representative.57
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.

57 Inasmuch as I believe that the September 17 election must be set
aside and that a new election be held, it is unnecessary to resolve the
challenges to the ballots of several voters.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 424
3. By failing and refusing to hire Fred Venglarcik for a sheet
metal worker/air-conditioning installation position because of
his membership in the Union, Respondent engaged in an unfair
labor practice within the meaning of Section 8(a)(1) and (3) of
the Act.
4. By suspending employee Charles Whitehead for 1 week
because of his support for the Union, Respondent engaged in an
unfair labor practice within the meaning of Section 8(a)(1) and
(3) of the Act.
5. By removing employee Charles Whitehead from a jobsite
because he wore a T-shirt supporting the Union, Respondent
engaged in an unfair labor practice within the meaning of Sec-
tion 8(a)(1) and (3) of the Act.
6. By demanding that an employee remove a union logo T-
shirt in order to continue working in its shop facility, Respon-
dent engaged in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
7. By interrogating employees and applicants for employ-
ment as to their union sympathies and activities and those of
their fellow employees, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
8. By threatening an employee that Respondent would close
its business if the employees selected the Union as their bar-
gaining representative, Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(1) of the Act.
9. By informing an applicant for employment that he would
have to sign a form waiving his right to be or become a member
of the Union, Respondent engaged in an unfair labor practice
within the meaning of Section 8(a)(1) of the Act.
10. By informing an applicant that his chances of becoming
employed by Respondent were linked to his membership in the
Union, Respondent engaged in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act.
11. By videotaping employees engaged in protected con-
certed activities without proper justification, Respondent en-
gaged in an unfair labor practice within the meaning of Section
8(a)(1) of the Act.
12. Respondent has not otherwise violated the Act as alleged
in the consolidated complaint.
REMEDY
Having found that Respondent has engaged in, and is engag-
ing in, serious unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies and pur-
poses of the Act. I have found that, in mid-August, Respondent
failed and refused to hire Fred Venglarcik as an air-
conditioning installer because of his membership in the Union.
Accordingly, I shall recommend that Respondent be ordered to
offer Venglarcik immediate employment as an air-conditioning
installer or, if the position no longer exists, to a substantially
equivalent position, without prejudice to his seniority and other
rights and privileges, and to make him whole, with interest, for
any losses he may have suffered as a result of its unlawful re-
fusal to hire Venglarcik. Backpay is to be computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Also, I have found that Respondent sus-
pended Charles Whitehead for 1 week (July 12 through 19,
1996) and removed him from Corcoran State Prison project for
a day because of his support for the Union. Therefore, I shall
recommend that Respondent be ordered to make Whitehead
whole, with interest, for any losses he may have suffered as a
result of its unlawful discipline of Whitehead. Backpay is to be
computed in accordance with F. W. Woolworth, supra, with
interest to be computed in accordance with New Horizons for
the Retarded, supra. Moreover, with regard to Venglarcik, I
shall recommend that Respondent notify him, in writing, that
any future employment application will be treated in a nondis-
criminatory manner. Finally, I shall recommend that Respon-
dent be ordered to expunge from its files any references to its
unlawful suspension and disciplining of Whitehead and to no-
tify him, in writing, that this has been done and that the unlaw-
ful actions will not be used against him in any way.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended58
ORDER
The Respondent, Standard Sheet Metal, Inc., Fresno, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to hire applicants for employment
because of their membership in the Union.
(b) Suspending employees because of their support for the
Union.
(c) Removing employees from jobsites because of their sup-
port for the Union.
(d) Demanding that employees remove union logo T-shirts in
order to work in its shop facility.
(e) Interrogating employees and applicants for employment
about their union membership, sympathies, and activities and
those of their fellow employees.
(f) Threatening employees that it will close its business if the
employees select the Union as their bargaining representative.
(g) Informing applicants for employment that they will have
to sign a form waiving their right to be, or become, members of
the Union.
(h) Informing applicants that their chances of become em-
ployed are linked to membership in the Union.
(i) Videotaping employees engaged in protected concerted
activities without proper justification.
(j) 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 actions deemed necessary
to effectuate the purposes and policies of the Act.
(a) Offer immediate employment as an air-conditioning in-
staller to Fred Venglarcik and, if the position no longer exists,
employment in a substantially equivalent position without
prejudice to his seniority or any other rights or privileges to
which he may have been entitled and make him whole, with
interest, for any losses, he may have suffered as a result of Re-
spondent unlawful refusal to hire him, in the manner described
in the remedy section of the decision.
(b) Within 14 days from the date of this Order, notify
Venglarcik, in writing, that any future employment application
will be treated in a nondiscriminatory manner.

58 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.
STANDARD SHEET METAL, INC. 425
(c) Make Charles Whitehead whole, with interest, for any
losses he may have suffered as a result of his unlawful suspen-
sion from July 12 through 19 and his removal from Respon-
dent’s Corcoran State Prison jobsite on September 13 in the
manner described in the remedy section of this decision.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension and discipline
of employee Charles Whitehead and, within 3 days thereafter,
notify him, in writing, that this has been done and that these
actions will not be used against him in any way.
(e) 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 terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Fresno, California, copies of the attached notice
marked “Appendix.”59 Copies of the notice, on forms provided
by the Regional Director for Region 32, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained by
for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since June 1, 1996.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official,
on a form provided by the Region, attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the election held on September
17, 1996 be set aside and the case remanded to the Regional
Director for Region 32 to conduct a new election when he
deems that the circumstances permit the free choice of a bar-
gaining representative.

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

59 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.”

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 refuse to hire applicants because they are mem-
bers of Sheet Metal Workers International Association, Local
Union No. 162, AFL–CIO.
WE WILL NOT suspend our employees because they support
the Union.
WE WILL NOT remove employees from jobsites because they
support the Union.
WE WILL NOT demand that our employees remove union logo
T-shirts in order to work inside our shop facility.
WE WILL NOT interrogate our employees and job applicants
about their union membership, activities, and sympathies and
those of their fellow employees.
WE WILL NOT threaten our employees that we will close the
business if our employees select the Union as their bargaining
representative.
WE WILL NOT inform job applicants that they will have to sign
a form, waiving their right to be, or become, a member of the
Union.
WE WILL NOT inform job applicants that their chances of be-
ing hired by us are linked to their membership in the Union.
WE WILL NOT videotape our employees in the exercise of pro-
tected concerted activities without proper justification.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer immediate employment as an air-conditioning
installer to Fred Venglarcik or, if the position is no longer
available, employment in a substantially equivalent position
without any prejudice to his seniority and any other rights and
privileges of employment and WE WILL make him whole, with
interest, for any losses he may have suffered as a result of our
discriminatory refusal to hire him.
WE WILL, within 14 days of the date of the instant Order, in-
form Venglarcik, in writing, that any future job application will
be treated in a nondiscriminatory manner.
WE WILL make Charles Whitehead whole, with interest, for
any losses he may have suffered as a result of our unlawful
suspension of him and our removal of him from our Corcoran
State Prison jobsite.
WE WILL, within 14 days of the date of the instant Order, ex-
punge from our files any references to Whitehead’s unlawful
suspension and unlawful removal from the Corcoran State
Prison jobsite and inform Whitehead, in writing, that such has
been done and that these actions will never be used against him
in any way.

STANDARD SHEET METAL, INC.