NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Shaw, Inc., Rapid River Enterprises, Inc., S
& R Cable, Inc., and Kimron Resources, Inc., a Single Employer and/or Joint
Employer and United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO and
Local 1098, Laborers International Union of North America, AFL–CIO and Local 324, International Union of
Operating Engineers, AFL–CIO. Cases 7–CA–37450(3),
7–CA–37450(4), and 7–CA–37450(5)
July 30, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Kirsanow
On September 18, 1997, Administrative Law Judge John H.
West issued the attached decision. The
Respondents filed exceptions and a supporting brief. On June 7, 2000, the Board issued an Order
remanding the proceeding to the judge for further consideration under its decision
in
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision, the supplemental decision, and the record in light of the exceptions and briefs and has decided to adopt the judge’s rulings, findings,2 and conclusions,3 except as discussed below, and to adopt his recommended Order as modified4 and set forth in full below.
i. supervisory status of foremen
The judge found that Respondents’ foremen, Ron Watson, Phil Fix, Rick Klis, and Gary Geister were supervisors under Section 2(11) of the Act. In reaching this conclusion, he cited their responsibility to assign tasks and direct employees at the jobsite, as well as their participation in determining employee discipline and rewards. The judge also found that these individuals engaged in various conduct that violated Section 8(a)(1). For the reasons described below, we reverse the judge’s finding that the foremen were statutory supervisors and that they engaged in certain unlawful conduct.
A. Overview of Foremen’s Duties
The Respondents’ pipeline construction crews consist of varying numbers of laborers and/or roustabouts, operators, and welders, headed by a foreman.5 The composition of the crews is determined prior to the start of each workday by one of the Respondents’ operations managers or field supervisors,6 with input from the foremen as to their manpower needs. Foremen drive their crewmembers to jobsites in company trucks7 and, if necessary, designate someone assigned to their crew to transport employees in additional trucks.
Once at the site, foremen are charged with ensuring the performance and completion of the Respondents’ job. In carrying out this function, a foreman might tell a crewmember to run a loader, or bulldozer, or to pull pipe, inform welders how he wants the work done, or switch the task assignments of employees during the day. Foremen regularly work alongside and perform the same types of tasks as other members of the crew. Like other crewmembers, foremen are paid hourly, earning approximately 50 cents per hour more than operators and $5 per hour more than laborers. During a normal workday, the Respondents’ field supervisors routinely visit the various jobsites, checking on progress and providing assistance in solving possible problems. When not on site, supervisors are readily accessible to foremen by radio or telephone as necessary. Foremen are provided corrective action notice forms (also referred to as writeup sheets) to document employee infractions, which may be used as bases for disciplinary action.
B. Supervisory Standard
The question is whether the Respondents’ foremen meet the statutory test as set forth in Section 2(11) of the Act, which defines “supervisor” as
any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
As the list of relevant factors is stated in the disjunctive,
supervisory status is established if foremen possess any of the enumerated functions. Oakwood
Healthcare, Inc., 348 NLRB No. 37, slip op. at 2 (2006). In this case, a question is raised as to
whether the putatively supervisory duties performed by the foremen involve the
exercise of independent judgment. “[T]o exercise ‘independent judgment’ an individual
must at a minimum act, or effectively recommend action, free of the control of
others and form an opinion or evaluation by discerning and comparing data.” Id at 8.
Furthermore, “a judgment is not independent if it is dictated or
controlled by detailed instructions, whether set forth in company rules or
policies, the verbal instructions of a higher authority, or in the provisions
of a collective-bargaining agreement.”
C. Analysis
Applying these standards, we find, contrary to the judge, that the foremen’s authority is significantly circumscribed and that the General Counsel has failed to show that foremen exercise independent judgment in the performance of their putatively supervisory duties. Thus, we need not decide whether any particular duty was supervisory in nature.
1. Assignment/direction
Turning first to the evidence regarding the foremen’s responsibilities to assign and direct employees, it shows that they perform essentially as jobsite lead persons, overseeing routine functions and following established prescribed practices. The evidence does not establish that they exercise independent judgment. Not only do most of the Respondents’ projects involve tasks which are recurrent and predictable, but, as described below, they are also carried out in conformance with supervisors’ specifications and oversight.8
2. Assignment
During the morning meeting at the start of each workday,
foremen are given a sheet prepared by upper management, identifying the job
they will be working on, listing the names of the employees assigned to their
crews, and designating the truck(s) to be used on the job. Foremen assemble their crewmembers and travel
with them to the jobsite in a company truck.
They then carry out the day’s assignment, working side-by-side with the
other crewmembers, in accord with specifications given to them by supervisors
during the morning meeting.
Because the day’s job essentially determines the composition of the crew, a foreman’s designation of which crewmembers will perform particular functions is often based on an employee’s trade or known skills, and is, thus, essentially self-evident. For example, if an operator is part of a crew, he will operate the heavy equipment, a fuser will fuse plastic pipe, and a welder will handle metal pipe. Such assignments do not involve the exercise of independent judgment.9
Other assignments are based on an employee’s readiness to carry out one of the less skilled tasks that compose the bulk of the Respondents’ workload. As the Respondents’ business involves an abundance of unskilled, laborer-type work, there are often multiple laborers on a crew. Because their duties tend to be somewhat repetitive and are often physically demanding, foremen routinely rotate laborers among those tasks to vary their work and equalize their burdens. Fix described this rotation as trying to keep employees from becoming “burned out” on a particular aspect of their work. Rotating essentially unskilled and routine duties among available crewmembers in this fashion does not involve the use of independent judgment and is not, therefore, indicative of supervisory authority.10
3. Direction
The foremen’s
role in directing the work of crewmembers is similarly limited. While working alongside the crewmembers, the
foremen also oversee the accomplishment of the day’s work, providing a degree
of direction to ensure the work’s completion.
Such direction, however, is given in accordance with the Respondent’s
prior instructions.11 Moreover, much of the work performed by the
crewmembers is routine and repetitive; there is no showing that such work
requires more than minimal guidance.12 Accordingly, we find that the foremen’s
limited role in directing employees in the performance of routine tasks,
pursuant to the Respondent’s instructions, has not been shown to involve the
use of independent judgment.13
Finally, such direction as the foremen do exercise is subject to close scrutiny by higher management. Record evidence shows that field supervisors or other members of the Respondents’ management generally visit every jobsite at least once a day, checking on progress and providing guidance as needed.14 Further, foremen have the means to contact and communicate with supervisors when they are not on site. Problems and questions about unexpected developments are directed to supervisors for them to handle. Thus, while the judge describes foremen as being “in charge” at the worksite, the evidence establishes instead that they serve as a conduit for carrying out the Respondents’ assignments, and that the work is regularly monitored by individuals who have both the authority and responsibility to ensure its proper performance.15
4. Discipline
Similarly, the record fails to support the judge’s conclusion that foremen exercise independent judgment in recommending discipline or have the authority effectively to recommend discipline. Watson testified that he completed a number of “writeup” sheets to memorialize incidents in which an employee failed to comply with the employee handbook.16 Watson did not testify that he had discretion to decide which incidents to record, and the record does not establish whether the forms were part of a formal disciplinary procedure.17 Watson’s understanding of the limitations of his authority is demonstrated by his description of having given a writeup to an employee who repeatedly failed to follow instructions. In the space for the corrective action to be taken for the offense he wrote “left to supervisor,” although the handbook provided for termination. Watson’s further testimony also establishes that he generally did not know what, if any, disciplinary action was taken pursuant to his writeups.18 Thus, the record does not establish that the write-up forms played a significant role in the disciplinary process, or that Watson exercised discretion in determining whether to complete writeup forms.19
Fix testified that he was once involved in disciplining an
employee. The incident involved two
employees who, contrary to specific instructions, drove a company truck into a
muddy area.20 The truck became stuck and could not be
driven out. Fix testified that
he reported this incident to Supervisor Robb and that he and Robb decided to
suspend the two employees for 1-1/2 days.
Even assuming that Fix’s participation in the decision with Robb
amounted to an exercise of supervisory authority, this isolated incident—the
only instance on this record in which any foreman exercised such authority—is
insufficient to establish that the foremen were statutory supervisors.21
5. Rewards
Contrary to the judge’s further determination, the evidence fails to establish that foremen play a significant role in affecting employee pay raises. For example, when asked whether he could recommend raises, Watson replied only that he “can ask” a supervisor and that there were “quite a few” instances in which his requests for raises had not been granted. Geister testified that it was his practice to tell a supervisor if he thought an employee had been doing a good job and deserved a raise, but he did not know whether those employees later received pay increases. Geister also stated that if an employee came to him and asked for a raise, he would pass along that request, whether or not he believed the increase was warranted. Obviously, Geister exercised no independent judgment in making such recommendations. Thus, we are unable to conclude that the record supports a finding that the Respondents’ foremen rewarded employees or effectively recommended that employees be rewarded.
6. Granting permission for early departure
Finally, the evidence shows that the foremen’s discretion in permitting employees to leave work early is also sharply restricted. Fix and Klis stated that they could permit an employee to leave work shortly before the end of the workday, but that a request for more time off would have to be presented to the operations manager or supervisor.22 Fix also testified that if an employee left 30 minutes before the day’s end, he would fill out the employee’s timesheet to reflect the early departure, ensuring that he would not be paid for time not worked. This evidence provides no support for finding that foremen exercised independent judgment or discretion in allowing employees to leave work early.23
Accordingly, for the reasons described above, we find no basis on which to conclude that the Respondents’ foremen possess any characteristics of supervisory authority enumerated in Section 2(11) of the Act, and we reverse the judge’s finding in this regard.24
ii. the 8(a)(1) allegations
In view of our determination that the Respondents’ foremen are not supervisors, we reverse the judge’s findings that certain of their actions violated Section 8(a)(1). Thus, we dismiss allegations that following a June 20, 1995 meeting in which the possibility of unionizing was discussed, Fix and Klis separately unlawfully interrogated employees about their union sympathies. We also dismiss the allegation that Geister unlawfully created the impression of surveillance by telling employee Frank on July 24, 1995, that the Respondents’ principal owner, Ron Shaw, was in town looking for the “union man.”
In addition, we reverse the judge’s finding that Klis violated Section 8(a)(1) by stating at the June 20, 1995 employee meeting that unionized employees had to provide their own transportation to and from jobsites and were not paid for such travel time. The judge found that because the Respondents’ practice had been to transport employees on company time, Klis’ statement was a threat that unionizing would cost employees this beneficial condition of employment. Unlike the above statements, Klis’ remark was made in the presence of acknowledged supervisors who did not disavow it. Thus, even though Klis himself is not a supervisor, his remark is attributable to the Respondents. We find, however, that the credited evidence is insufficient to support a finding of a threat.
Employee Frank testified only that Klis said that on union jobs employees have to provide their own transportation to the jobsite and are not paid for drive time. Klis did not state that the Respondents’ own practice would change, but rather only volunteered his apparent understanding about what the practice was on unionized jobs. Accordingly, there is no basis to find that these words reasonably tended to coerce employees.25 See, e.g., Center Service System Division, 345 NLRB No. 45 slip op. at 3 (2005). Thus, we reverse the judge’s finding of a violation.26
Finally, we find it unnecessary to pass on the judge’s 8(a)(1) finding based on Watson’s statement about possible job loss, also made in the presence of supervisors at the June 20, 1995 employee meeting, because it is cumulative of other findings and would not affect the remedy.
ORDER
The Respondents, Shaw, Inc., Rapid River Enterprises,
Inc., S & R Cable Inc., and Kimron Resources, Inc., a Single Employer
and/or Joint Employer,
1. Cease and desist from
(a) Threatening that the Respondents would lose work, reduce their work force, or that their employees would work fewer hours if they became represented by the Charging Party Unions, or any other union.
(b) Promising to look into the possibility of providing a better insurance plan if their employees were not represented by the Charging Party Unions or any other union.
(c) Promising employees the choice of a picnic, a bonus, or a jacket in order to dissuade them from supporting a union.
(d) Threatening that Respondent Shaw would close its doors if a union came in.
(e) Offering a monetary reward for employees to engage in surveillance of other employees’ union activities and/or to report union adherents to the Respondents.
(f) Informing employees that union members would not be employed by the Respondents because of their association with Charging Party Operating Engineers, or any other union.
(g) Threatening union adherents with unspecified adverse action and violence.
(h) Informing employees that an employee was being reassigned from one work crew to another because of that employee’s support for the Charging Party Unions, or any other union.
(i) Maintaining an overly broad rule prohibiting the distribution of literature on company property at any time.
(j) Failing and refusing to hire qualified job applicants seeking employment with the Respondents because of their membership in or affiliation with Charging Party Operating Engineers, Charging Party Laborers, or any other union.
(k) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the overly broad rule prohibiting the distribution of literature on company property at any time.
(b) Within 14 days from the date of this Order, offer Danny McDonald, Michael Adrianse, William Nolan, Charles Bartholomew, Michael Bartholomew, David Beebe, William Boone, David DeVos, James Hooker, Robert Peters, Chad Chapman, Lee Wheeler, and Ronald Freel instatement into positions for which they applied or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled had they not been discriminated against by the Respondents.
(c) Make Danny McDonald, Michael Adrianse, William Nolan, Charles Bartholomew, Michael Bartholomew, David Beebe, William Boone, David DeVos, James Hooker, Robert Peters, Chad Chapman, Lee Wheeler, and Ronald Freel whole for any loss of earnings and other benefits suffered as a result of the unlawful discrimination against them, in the manner set forth in the remedy section of the judge’s decision.
(d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to hire Danny McDonald, Michael Adrianse, William Nolan, Charles Bartholomew, Michael Bartholomew, David Beebe, William Boone, David DeVos, James Hooker, Robert Peters, Chad Chapman, Lee Wheeler, and Ronald Freel and, within 3 days thereafter, notify them in writing that this has been done and that the refusal to hire them will not be used against them in any way.
(e) Preserve and within 14 days of a request or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in
(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 Respondents have taken to comply.
Dated,
Robert J. Battista, Chairman
Wilma B. Liebman, Member
Peter N. Kirsanow Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not threaten that we would lose work, reduce our work force, or that our employees would work fewer hours if they became represented by a union.
We will not promise to look into the possibility of providing a better insurance plan for our employees if they are not represented by a union.
We will not promise employees the choice of a picnic, a bonus or a jacket in order to dissuade them from supporting a union.
We will not threaten that Shaw, Inc. would close its doors if a union came in.
We will not offer monetary rewards to employees to engage in surveillance of other employees’ union activities and/or to report union adherents to us.
We will not inform employees that we will not employ union members because of their association with a union.
We will not threaten union adherents with unspecified adverse action or violence.
We will not inform employees that another employee was being reassigned from one work crew to another because of that employee’s support for a union.
We will not fail and refuse to hire job applicants seeking employment with us because of their membership in or affiliation with a union.
We will not maintain an overly broad rule prohibiting the distribution of literature by employees on company property at any time.
We will not in any like or related manner interfere with, restrain, or coerce employees in their exercise of the rights listed above.
We will rescind the overly broad rule prohibiting the distribution of literature on company property at any time.
We will, within 14 days of the Board’s Order, offer Danny McDonald, Michael Adrianse, William Nolan, Charles Bartholomew, Michael Bartholomew, David Beebe, William Boone, David DeVos, James Hooker, Robert Peters, Chad Chapman, Lee Wheeler, and Ronald Freel employment in the positions for which they applied or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled had we not discriminated against them.
We will make whole Danny McDonald, Michael Adrianse, William Nolan, Charles Bartholomew, Michael Bartholomew, David Beebe, William Boone, David DeVos, James Hooker, Robert Peters, Chad Chapman, Lee Wheeler, and Ronald Freel, with interest, for any loss of earnings they may have suffered by reason of our unlawful refusal to hire them upon application.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful refusals to hire the above-named individuals, and we will, within 3 days thereafter, notify them in writing that this has been done and that the refusal to hire them will not be used against them in any way.
Shaw, Inc., Rapid River Enterprises, Inc., S & R Cable, Inc.,
and Kimron Resources, Inc.
Joseph P. Canfield, Esq., for the General Counsel.
Lisa Latart, Esq. and Barry R. Smith, Esq. (Miller, Johnson, Snell &
Cummiskey), of
Mr. John Cobe, of
Mr. Tom Boensch, of
Mr. Eugene Barrett, of
DECISION
Statement of the Case
John H. West,
Administrative Law Judge. The charge in
Case 7–CA–37450(3) was filed by United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
A hearing was held in
Findings of Fact
i. jurisdiction
All of the Respondents’
corporations maintain an office and place of business in
ii. alleged unfair labor practices
A. Facts
With respect to paragraph 10 of the complaint, Respondents stipulate that Ron Shaw, Gregory Lucas, James Robb, Carl Steuer, and William Ancel are supervisors within the meaning of the Act.[6]
Joint Exhibit 1 is a two-page handwritten list of the applicant’s names on the applications which Shaw, Inc. had in its files.
The parties stipulated that General Counsel’s Exhibit 63, a classified ad reading as follows appeared in one of the local newspapers in February or March 1995:
HELP WANTED: Excavator
and dozer operators, Roustabout and pipe line foreman. Truck drivers. and
general laborers. Must have clean driving record and be able to pass a drug
test. Apply at: Shaw, Inc. M-32-33,
On March 16, Danny
McDonald, who was a member of the Engineers and who has 6 years’ experience in
pipeline construction, submitted an application at Shaw, Inc. (GC Exh. 23.) He lives in
On April 25, John
Pacola, who is a business representative with the Engineers, telephoned Shaw,
Inc., spoke with someone he identified as Kelly, and he told her that he was a
heavy equipment operator and that he was looking for work. Pacola testified that when he asked Kelly if
Shaw, Inc. was doing any hiring she said yes out of the
Also on April 25, Rick
Stemkowski submitted an application at Shaw, Inc. in
Additionally on April 25, 1995, John Birgy, who is a member of the Pipefitters who was a welding certification, went to Shaw, Inc. to apply for a position. Birgy testified that he went with Bergkamp, who is a welder; that he asked the woman in the office at Shaw, Inc. if they had a project that was going to start and if they were going to be needing people and she replied, “yes”; that he and Bergkamp filled out applications and then turned them in to the woman in the office; that General Counsel’s Exhibit 33 is the application that he filled out; that he went to Shaw, Inc. because the job he and Bergkamp were working on that day was rained out in the morning and the job only had a few more weeks of work for him; that he wrote voluntary union organizer on the top of his application; that he did not fill out that portion of the application under driving experience because it referred to a truckdriving job; that as he left Shaw, Inc.’s office the woman in the office said that they would be in contact; that he had an answer machine and they did not contact him; that he telephoned Shaw, Inc. on two different occasions[10] and the woman who answered the telephone in response to his questions said that the project was moving on and he would just have to wait to hear from them on his application; that he has fused plastic pipe before; that he has worked all over Michigan and in New York State; and that he thought that later in the day the rain stopped and he went to work at the CO2 plant; and that he did not complete the employment record potion of the application because he believed that it applied to a driver position. Bergkamp testified that he is a member of the Pipefitters and has been a welder for close to 20 years; that he operates his own welding rig; that on April 25, 1995, he applied for work at Shaw, Inc. when the job he was working on at the CO2 plant on Old State Road for Deever construction was rained out; that he went to Shaw,Inc. with Birgy; that he left part of his application (R. Exh. 4) blank because he believed that it applied to a regular full-time truckdriver; that he wrote voluntary union organizer at the top of his application; that regarding rate of pay he wrote negotiable; that the “EMPLOY-MENT RECORD” portion of the application begins with the following:
The U.S. Department of Transportation requires that driver applications show all employment for the last three years. Effective July, 1987 they must also show commercial driver employment for the seven years immediately preceding this year period. [Subsection] . . . 391.21(B)(10), (11)[;]
that this language did not play any role in his not filling out the “rest of the application”; that he never heard from Shaw, Inc. and he has an answering machine; that he was laid off at the CO2 plant shortly after applying at Shaw, Inc.; that the next job that he took was 150 miles from his home; that he did not believe that he went back to the CO2 plant that day after completing his application at Shaw, Inc.; and that he also did not complete the employment portion of the application because he wanted to be interviewed and because the person who referred him was going to talk with the people at Shaw, Inc. about his ability aa a welder.
Lucas, who is the operations manager of Shaw, Inc., testified that the welders which Shaw, Inc. uses work for Tara Energy which is Shaw’s main customer; that Shaw gets them through Tara Energy; that Shaw, Rapid, or S & R do not pay the welders; and that when they need a welder they clear it with Tara Energy.
The applications of the employees hired after April 27 were received as General Counsel’s Exhibits 65(a) through 65(ffff). Additionally, a list of employees hired after March 16 was received as General Counsel’s Exhibit 67.
By letter dated May 1 (GC Exh. 26), Pacola requested Ron Shaw to open lines of communication with respect to Shaw, Inc. becoming a union contractor.
In early May 1995, Lee Wheeler, who is a member of the Laborers and worked on pipelines for about 4 years, filled out an application at Shaw, Inc. Wheeler testified that he indicated on the application that he was a member of the Laborers and that he was seeking scale wages, indicating the amount he desired; that when he turned the application back in the woman glanced over it and she did not ask for his driver’s license or social security number; that the woman said that when anything breaks here, we’ll get in touch with you; that he never heard from Shaw, Inc.; that he did not have a copy of his application; that he lives in Atlanta; that most of his work is within a 1 to 2 hours drive; that when he went to Shaw, Inc. he did not know that it was nonunion; that he never went back to Shaw, Inc. or telephoned it; and that he did not write “voluntary union organizer” on the top of his application. Neither Respondents nor the General Counsel had a copy or Wheeler’s application.
Also in early May 1995,
Ronald Freel, who is a member of the Laborers and had worked on pipelines for
about 8 months at the time, applied for work at Shaw, Inc. He testified that the only thing he put on
his application which would indicate that he was affiliated with a union was
that he asked for “Union scale.” After
he completed the application he turned it into the women who worked at Shaw,
Inc, and she asked for his driver’s license and his social security card so
that she could copy them. He never heard
from Shaw, Inc. Freel lives in
On May 5, according to the testimony of John Cobe, who is an organizer for the engineers, he and representatives from the other trades[11] met to discuss having a demonstration at one of the gas producing companies that employs Shaw; and that there was no discussion about active direct organizing of the employees at Shaw.
On May 5, Pacola telephoned Shaw, Inc and spoke with Barbara who, in response to his question, stated that Shaw, Inc. was still hiring.
On May 8, Michael
Adrianse, who is a member of the Engineers, went to Shaw, Inc. in
On May 10, Chad Chapman,
who is a member of the Laborers and has worked on pipelines for the past 10
years, went to Shaw, Inc. and filled out an application. When he turned it in to the woman at the
counter at Shaw, Inc. she told him that she needed his driver’s license and
social security card and that he had not filled the application out thoroughly
and he should complete it. He went back
to the lunch room and looked at the application again and made a copy of it
using the copying machine in the lunchroom.
He did not fill out those portions which he believed referred to driving
a truck or being an operator. When he
gave the application back to the woman in the office she indicated that she did
not need his license or social security card since there was a meeting being
held in the office which housed the copying machine. On the first page of his application (GC Exh.
10), Chapman wrote “union scale” where the application asks for the rate of pay
expected. Also, he believed that he was
wearing his union jacket with a union logo on it when he applied a Shaw,
Inc. Chapman resides in
On May 15 Adrianse telephoned Shaw, Inc. and was told that it still was not hiring. He never received a telephone call from Shaw, Inc.
Also on May 15,
members of the Engineers, the Pipefitters, the Laborers and Local 190 of the
Teamsters met at Coyles Restaurant at
Additionally, on May
15 Richard Konieczny, who is a member of Pipeliners 798 out of
By letter dated May 19 (GC Exh. 3), Cobe advised Ronnie Shaw, the president of Shaw, Inc., as follows:
On ... May 15, 1995 eight members of the . . . Engineers made application for employment at your company. These eight . . . have experience . . . and are willing to work under the same terms and conditions which your have extended to other employees who are qualified in the trade.
You will not be able to employ more qualified and productive employees in any labor market. Additionally, you can be assured that any protected activity in which these applicants may choose to engage following their employment by you will [be] conducted strictly within the guidelines established by Law and the National Labor Relations Board and will not interfere with their efficiency and productivity as an employee.
Should you fail or refuse to fairly and nondiscriminatorily consider these applicants for employment, please be advised that we reserve the right to bring such failure or refusal to the attention of the National Labor Relations Board as violations of Section 8(a) (1) and (3) of the Act.
If for any reason you refuse to accept these applicants or if you consider same deficient in any manner, please advise me immediately so that remedial action may be taken. Please feel free to contact these applicants through my office, the Grayling branch office, or the Freeland branch office.
On May 19, Brian Golden, who is a member of the Pipefitters and a welder, submitted an application to Shaw, Inc. (GC Exh. 34). He testified that he has worked on pipelines two or three times a year; that he has fused plastic pipe; that he was out of work when he applied at Shaw, Inc.; that he wrote union organizer at the top of the application because the union told him to do it; that he wrote “neg.” on the rate of pay expected line because he wanted to see what kind of money he could get; that when he handed in the application the secretary looked it over and she said “fine”; that he has worked all over the State of Michigan and lives in Kalkaska, Michigan, which is about 70 miles from Atlanta; that he has worked nonunion jobs before, with the last one in the middle 1980s; that he has his own welding rig; and that when he submitted his application at Shaw,Inc. the secretary asked him for his driver’s license and social security card and she made a copy.
When Chapman went back to Shaw, Inc. about 2 weeks after he submitted his application on May 10 the woman behind the counter, after leaving the counter to go to an office for a short time, told him that Shaw, Inc. was not hiring. Chapman, who has an answering machine, never heard from Shaw, Inc, after that.
By application dated May 23 (GC Exh. 22), Jared Frank sought a position with Shaw, Inc. He received a telephone call from Robb, who he understood to be a general foreman of Shaw, Inc., on June 14 and was hired as a laborer even though he did not have any experience in the pipeline construction industry.
Also on May 23, 1995, Ross Hart, who is in the Pipefitters Local 798 out of Tulsa, Oklahoma, and a welder, applied for a position at Shaw, Inc. (GC Exh. 49). He testified that he went to Shaw, Inc. with Mike Hage; that he was given the application form at an earlier union meeting at Houghton Lake and told to write “voluntary union organizer” on the top of the application; that he has a welding rig but he occasionally works inside a building for employers without his rig; that the secretary at Shaw, Inc. took his and Hage’s application and asked for their driver’s licenses and social security cards; that he did not fill out part of the application, “EMPLOYMENT RECORD,” because he believed that it applied to someone applying for a truck driving job; that he never heard from Shaw, Inc. and he has an answering machine; that he was not employed when he went to Shaw, Inc.; that he has traveled out of state to work and in Michigan from Detroit to the Upper Peninsula; that his home in Mt. Pleasant, Michigan, is about 130 or 140 miles from Atlanta; and that he never telephoned Shaw, Inc. to check on the status of his application. Hage testified that he is a member of Pipefitters Local 798 and a welder; that he went to Shaw, Inc. with Hart and submitted an application for employment;[17] that he received the application form at a union meeting at Houghton Lake where he was told to and he did write voluntary union organizer on it; that after he gave his application to the woman in the office at Shaw, Inc. and she looked at the applications, she asked them for their driver’s licenses and social security cards; that he never heard from Shaw, Inc. and he has an answering machine; that he lives in Gaylord, Michigan, and Shaw, Inc. advertised in the Gaylord newspaper for pipeline workers and foremen; that he has experience working with steel and plastic pipe; that he has his own welding rig; that he did not have a job when he turned in the application at Shaw, Inc.; that he never telephoned Shaw, Inc. after he submitted his application; and that in the last 5 years he has not applied at any other nonunion companies or written voluntary union organizer on any other application.
On May 24, Hooker
telephoned Shaw, Inc. and he was told that it was not doing any hiring. Subsequently, he telephoned Shaw, Inc. three
times[18]
and was told the same thing. He never received
a telephone call from Shaw, Inc. His
wife is home in the morning until noon and usually in the evenings. Hooker was referred by the Engineers to a
union pipeline construction job in
Lucas testified that
Shaw, Inc. built a CO2 plant north of Vienna Corners,
When Boone telephoned Shaw, Inc. about 2 or 3 weeks after he had submitted his application on May 15, 1995, he was told that if Shaw hired and if his application was still on file, Shaw, Inc. would contact him. Boone never received a telephone call from Shaw, Inc.
On June 5 Barrett, a
field representative of the Laborers, attended a union meeting in
On June 6, McDonald, as indicated above, went to Shaw, Inc. for the last time looking for work as an equipment operator. He was