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, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Suburban Electrical Engineers/Contractors, Inc. and International Brotherhood of Electrical Workers, Local Union 577. Cases 30–CA–15473, 30–CA–15828, and 30–CA–16086

September 20, 2007

DECISION AND ORDER

By Chairman Battista and Members Liebman
and Schaumber

On December 2, 2002, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed 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,1 findings,2 and conclusions only to the extent consistent with this Decision and Order.3

i. introduction

The Respondent engages in commercial, industrial, and residential construction as an electrical contractor from its facility in Appleton, Wisconsin. The International Brotherhood of Electrical Workers, Local Union 577 (Union) commenced an organizing campaign among the Respondent’s employees in September 2000. This campaign included union officers and members filing applications for employment with the Respondent. In January 2001,4 the Respondent commenced work on the new Fond du Lac High School project, a $40-million plus project. In April, employee Randy Reinders revived the Union’s organizing campaign among the Respondent’s employees and informed the Respondent of his union affiliation. Thereafter, “salts” Terry Roovers, Corey Wiegel, and Troy Toomer sought employment with the Respondent. The Respondent knew about their union affiliation.

The allegations in this case arise from the Respondent’s conduct in response to the Union’s organizing campaign and from the Respondent’s conduct in processing the employment applications of the union “salts.” With respect to the organizing campaign, the General Counsel alleged that the Respondent committed a significant number of unfair labor practices in violation of Section 8(a)(1) of the Act. However, the judge dismissed all these allegations except one. As to these dismissed 8(a)(1) allegations, we agree with the judge, for the reasons he states.5

In dismissing certain of the 8(a)(1) allegations, the judge relied, in part, on his finding that the Respondent’s foremen—Gary Goland, Dave Chappel, and Matt Holz—were not statutory supervisors and that the Respondent was therefore not responsible for their actions. We adopt the judge’s finding. In his exceptions, the General Counsel argued, inter alia, that these three foremen were at least agents of the Respondent and therefore the Respondent was responsible for their conduct.6 As set forth below, we reject the General Counsel’s position regarding these foremen.

As for the final alleged violation of Section 8(a)(1), the judge found that Project Manager Sam Schultz unlawfully threatened employees on April 5, 2002. We disagree with the judge and reverse his finding below.

With respect to the 8(a)(3) allegations, the General Counsel alleged that the Respondent failed to consider for hire and to hire the “salts”—Terry Roovers, Corey Wiegel, and Troy Toomer—on various dates. In this regard, the judge found merit in certain of the complaint’s allegations but recommended dismissal of other allegations. As set forth below, we affirm in part, and reverse in part, the judge’s 8(a)(3) findings.

ii. the 8(a)(1) complaint allegations

A. Conduct of Foremen Goland, Chappel, and Holz

The General Counsel contended, among other things, that the Respondent, by certain statements and actions of its Foremen Gary Goland, Dave Chappel, and Matt Holz violated Section 8(a)(1) of the Act.7 The judge recommended dismissal of these allegations on the grounds that none of the foremen was a statutory supervisor. As noted, the General Counsel excepts to the judge’s failure to find that the three foremen were supervisors and/or agents of the Respondent and that the Respondent was therefore responsible for their actions. We agree, for the reasons discussed by the judge, that the foremen were not supervisors. As for the foremen’s agency status, the judge concluded that the General Counsel did not establish Goland’s agency status, but the judge did not make any conclusions regarding the agency status of Chappel or Holz. We find that the General Counsel did not establish the agency status as to any of the foremen.

The General Counsel urges that Goland was the Respondent’s agent because he scheduled overtime, signed employees’ timesheets, referred to himself as the foreman, was referred to as the foreman by management, and was viewed as the foreman by the employees.

In Albertson’s, Inc., 344 NLRB No. 141 (2005), the Board explained the test for determining agency status: “whether the alleged agent’s position and duties, and the context in which the conduct occurs, establish that ‘employees would reasonably believe that the employee in question was reflecting company policy and speaking and acting for management.’” Albertson’s, Inc., supra, slip. op. at 1 (quoting Pan-Oston Co., 336 NLRB 305, 306 (2001)). The party asserting that an individual is an agent bears the burden of establishing the agency relationship. Pan-Oston, supra at 306. Further, “the party who has the burden to prove agency must establish an agency relationship with regard to the specific conduct that is alleged to be unlawful.” Id.

We conclude, as did the judge, that the General Counsel did not establish that Goland was the Respondent’s agent. Goland was a foreman on a jobsite where Project Manager Chamberlin was the supervisor. Although Goland signed employee timesheets, Goland followed Chamberlin’s instructions as to the assignment of work and had no authority to change work assignments without Chamberlin’s permission. Thus, Goland’s signing of timesheets was essentially a clerical task. It provided no basis for a reasonable employee belief that Goland—in soliciting employee views about the Union or in promulgating an overly broad no-solicitation rule—was reflecting company policy. The General Counsel failed to establish that Goland had apparent authority to speak or act for management. See Pan-Oston Co., supra at 305–307 (position as group leader and attendance at supervisory meetings insufficient basis to establish apparent authority as to engaging in surveillance, creating the impression of surveillance, and interrogating an employee). Accordingly, we agree with the judge that Goland was not an agent of the Respondent, and the complaint allegations involving Goland should be dismissed.

For similar reasons, we find that the General Counsel failed to establish that either Chappel or Holz was an agent of the Respondent. Like Goland, both Chappel and Holz served as foremen and performed tasks similar to those performed by Goland. Thus, they signed timesheets, gave out work assignments and inspected work. Nonetheless, the General Counsel failed to establish that the Respondent cloaked these foremen with apparent authority to speak or act on its behalf. Compare SAIA Motor Freight, 334 NLRB 979 (2001) (foreman was vested with apparent authority where he assigned and directed the employees’ work, had authority to grant time off, took corrective disciplinary action, designated lunchbreak times, corrected time and attendance records, conducted employee meetings at which he discussed work-related matters, attended supervisory and management meetings, and terminal manager told employees that foreman was in control of the dock workers and that if the employees had any job-related problems they should take them up with foreman). Accordingly, we also adopt the judge’s recommended dismissals of the complaint allegations based on the actions of Chappel and Holz.

B. Conduct of Project Manager Schultz

We disagree with the judge’s finding that Project Manager and Senior Supervisor Sam Schultz unlawfully threatened employees on April 5, 2002. The judge credited employee Randy Reinders’ testimony that, on that date, he, Schultz, and Chappel were in the Respondent’s parking lot walking into the building before going to a job. Reinders heard Schultz ask Chappel: “Well, Dave, [did] you take care of our union problem yet?” Chappel pointed to Reinders and said: “What, you mean Randy?” Schultz then looked at Reinders and said: “Oh, sorry. I thought you were someone else.”

The judge found Schultz’ statement constituted a threat of adverse consequences for union activity because it was common knowledge that Reinders was a union supporter. We disagree. Based on all of the surrounding circumstances, we find Schultz’ question to be ambiguous. First, the Union was engaged in a long-term organizing campaign which inevitably generated incidents which might be innocuously referred to as “union problems.” Moreover, Schultz’ question is devoid of any express or implicit references to adverse employment consequences for Reinders.8 Second, the incident occurred in an atmosphere of morning geniality as Schultz, Chappel, and Reinders walked from the parking lot into the Respondent’s facility before going to a job. Finally, the incident occurred in an atmosphere free of any other unfair labor practices; the Respondent’s only unlawful conduct (the discriminatory refusal-to-hire violations of September 26 and October 3) occurred approximately 5 months earlier. Thus, Schultz’ question, in context, does not support an interpretation that it was a threat of adverse consequences because of union activity, as alleged in the complaint. The General Counsel has not established a violation by a preponderance of the evidence. See Illinois Institute of Technology, 195 NLRB 375 (1972) (employer’s statement that “he made trouble by going to the Labor Board on me” does not constitute a clear, unambiguous threat of reprisal).9

Our dissenting colleague’s reliance on Washington Fruit & Produce Co., 343 NLRB 1215 (2004), is misplaced. In that case, the Board found that a supervisor’s asking two employees who were dressed in heavy jackets before entering the cold room if they were putting on their “bulletproof vests,” did not reasonably tend to interfere with the free exercise of employees’ Section 7 rights. In dismissing the allegation, the Board noted, however, that a supervisor’s statements may be coercive regardless of the supervisor’s friendship with employees. We do not disagree with that observation. Nonetheless, here, there was merely a brief exchange of ambiguous remarks among Schultz, Chappel, and Reinders. Indeed, as we have already noted, Schultz’ question was devoid of any express or implicit references to adverse employment consequences for Reinders. Further, contrary to our colleague, our reference to an “atmosphere of morning geniality” surely does not indicate an intention to encourage “getting threats in early.” Our reference merely noted that the environmental context of the exchange contributed to the innocuousness of remarks that were ambiguous by their own terms.

iii. the 8(a)(3) “refusal to hire” allegations

We agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act when it failed to hire “salts” Terry Roovers and Corey Wiegel on September 26, and hired instead Jason Puls, and failed to hire the same “salts” on October 3, and hired instead Eric Lieby.10

However, we do not agree with the judge’s analysis in its entirety. In FES, 331 NLRB 9 (2000), supplemented by 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), the Board set forth the framework for analysis of refusal-to-hire cases. To meet his burden of proof in a discriminatory refusal-to-hire case, the General Counsel must show:

that the Respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer had not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants.11

There is no dispute as to the first part of the FES test.

As to the second part of the FES test, the judge found that Roovers and Wiegel possessed the training and experience necessary to meet the qualifications for the positions filled by the Respondent. Indeed, the judge also found that the training and experience of Roovers and Wiegel was “far superior” to that of Puls and that the applications of Roovers and Wiegel were “superior” to that of Lieby.

As to the third part of the FES test, the judge found, inter alia, that the Respondent exhibited animus in the Respondent’s awareness that Roovers and Wiegel were affiliated with the Union, and had filed numerous employment applications over a 6-month period seeking journeyman electrician positions with the Respondent, at a time when the Union was attempting to organize the Respondent’s employees.

The judge also found that the Respondent’s stated reasons for failing to hire Roovers and Wiegel were false. The judge noted that the Respondent assertedly relied on Roovers’ alleged rudeness during the application process and the absence of current employment during the most recent 2 years when Roovers served as a union business manager. As to the first factor, the judge found that the Respondent failed to document Roovers’ alleged rudeness. None of the Respondent’s agents or employees informed Roovers at the time that they considered him rude or disrespectful, and the Respondent’s chief witness acknowledged that Roovers was not rude or overpowering on numerous occasions and only once was “his voice . . . raised and he came across pretty harsh.” The judge noted that the Respondent rehired at least two employees who experienced behavioral problems. As to the second factor, although Roovers had been serving as a union business manager, he had continued to perform electrical work as a volunteer on Salvation Army and Police Department projects and on his own home and the houses of family members. Indeed, Roovers had a current journeyman electrician certification. The judge noted that had the Respondent contacted Roovers or interviewed him, as the Respondent did for other applicants, the Respondent would have ascertained that Roovers was current in his skills. The judge further noted that Lieby, whom the Respondent hired, listed no current job duties in his job application.

The judge also noted that the Respondent’s stated reasons for not hiring Wiegel were Wiegel’s prior refusal of a job offer and Wiegel’s absence from the trade while he was a full-time union business agent. As to the first factor, Wiegel refused the Respondent’s job offer—and so informed the Respondent—because of the short notice, and daycare complications for his family because the job was out-of-town. Nevertheless, the Respondent failed to inform Wiegel, when he inquired, that Wiegel’s refusal of the job would harm future consideration for jobs with the Respondent. The Respondent also failed to fill this particular out-of-town job and acknowledged that it hired several employees despite their previously turning down job offers.12 As to the second factor, the Respondent made no reference to Wiegel’s absence from the trade when the Respondent offered Wiegel the out-of-town job which Wiegel declined. Also, as with Roovers, the Respondent failed to contact or interview Wiegel as the Respondent did with other applicants. Thus the Respondent failed to ascertain, that during Wiegel’s term as business agent, Wiegel performed electrical work for charitable organizations and taught classes on grounding techniques in the Union’s apprenticeship program. The judge therefore concluded that the Respondent’s stated reasons for not hiring Roovers and Wiegel were false and pretextual.

We apply FES’ three-part test in the following manner. As noted heretofore, there is no dispute as to the first part of the test. As to the second part of the test, there is also no dispute that Roovers and Wiegel had experience or training relevant to the job at issue. Indeed, the judge so found. The judge also intimated that Roovers and Wiegel’s superior qualifications played a role in his concluding that the Respondent unlawfully failed to hire them. We, however, find it unnecessary to rely on this finding by the judge. We rely instead on the Respondent’s proffering of false reasons for its failure to hire the two applicants. The Respondent did not assert that Roovers and Wiegel were unqualified for the jobs at issue. The Respondent submitted that Roovers had been rude and that Wiegel had refused a prior job offer. Further, the Respondent stated that both Roovers and Wiegel were without current experience because they had been serving as union agents immediately before they applied for the Respondent’s jobs. As the judge found, and we agree with the judge, the Respondent’s assertions in this respect were false. In concluding that the General Counsel established animus, we agree with our dissenting colleague that the judge incorrectly found animus in the mere fact that Roovers and Wiegel were affiliated with the Union and the Union was attempting to organize the Respondent’s employees. Nevertheless, the judge correctly found that the Respondent’s stated reasons for not hiring Roovers and Wiegel were false and pretextual. Based on this finding, we agree with the judge that the requisite animus was established.

It is axiomatic that findings of antiunion animus and discriminatory motive may be predicated on pretextual reasons advanced for a personnel action. It is well settled that when a respondent’s stated reasons for its actions are found to be false, the circumstances may warrant an inference that the true motive is an unlawful one that the respondent desires to conceal. See Loudon Steel, 340 NLRB 307, 312 (2003) (citations omitted). Thus the Board, in finding animus, may rely on the judge’s findings that a respondent’s proffered reasons for the personnel actions were pretextual. See Waterfront Services Co., 340 NLRB 1305 fn. 2 (2003). It is also axiomatic that where it is shown that a respondent’s proffered reasons are pretextual—that is false, or not in fact relied upon—the respondent fails by definition to show that it would have taken the same action for those reasons, absent the protected conduct. See Golden State Food Corp., 340 NLRB 382, 385 (2003) (citing Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982)). Accordingly, it is unavailing for our dissenting colleague to cite the Respondent’s alleged factors for hiring Puls and Lieby in lieu of Roovers and Wiegel. What is critical is that the Respondent offered false and pretextual reasons for its failure to hire Roovers and Wiegel. Under these circumstances, the third part of the FES is satisfied, and the Respondent has failed to demonstrate that it would not have hired Roovers and Wiegel even in the absence of protected conduct. Therefore, the Respondent violated Section 8(a)(3) and (1) of the Act when it failed to hire “salts” Roovers and Wiegel on September 26 and October 3, and instead hired Puls and Lieby.

We disagree, however, with the judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to consider for hire the two “salts”—Roovers and Wiegel—on July 17. The judge found that Roovers and Wiegel possessed “superior qualifications” to those of applicants Arnoldi and Horn and concluded that Respondent refused to consider the “salts” based on their “union affiliation.” However, we conclude that the Respondent in fact considered the “salts” for the July 17 opening.

FES, supra at 15, provides that to establish a discriminatory refusal to consider, the General Counsel must show: (1) that the respondent excluded applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to consider the applicants for employment. If this is established, the burden then shifts to the respondent to show that it would not have considered the applicants even in the absence of their union activity or affiliation. Id.

Here the General Counsel failed to establish the first prong of the prima facie case. Maass testified that he considered all the relevant applications, including those of Roovers and Wiegel. The General Counsel failed to provide evidence contrary to Maass’ testimony.13 Thus, the General Counsel did not establish Roovers and Wiegel were excluded from the hiring process. We find the Respondent did not engage in a discriminatory refusal to consider for hire in connection with its July 17 offer of employment to Arnoldi and Horn. Compare Progressive Electric, 344 NLRB No. 52, slip op. at 10 (2005), enfd. 453 F.3d 538 (D.C. Cir. 2006) (refusal-to-consider violation based on applicants not being allowed to file applications and being told they would be considered when employer had vacancies); Cheney Construction, 344 NLRB No. 9, slip op. at 1 fn. 1 (2005) (refusal-to-consider violation based on administrative assistant’s failure to place applications in superintendents’ boxes because she knew the applicants were with the union and “they weren’t really looking for a job”).

Amended Remedy

Having found that the Respondent discriminatorily refused to hire Terry Roovers and Corey Wiegel, the Respondent must make them whole for its unlawful conduct against them. The duration of the backpay period shall be determined in accordance with Oil Capitol Sheet Metal, 349 NLRB No. 118 (2007). Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and interest shall be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987).14

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Suburban Electrical Engineers/Contractors, Inc., Appleton, Wisconsin, its officers, agents, successors, and assigns shall take the action set forth in the Order as modified.

1. Cease and desist from

(a) Discouraging employees from engaging in activities on behalf of a labor organization by refusing to hire job applicants because they are members or supporters of unions, or because they indicate on their employment applications that they are voluntary union organizers.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order offer to Terry Roovers and Corey Wiegel employment in the positions for which they applied, or if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and any other rights and privileges.

(b) Make Terry Roovers and Corey Wiegel whole for any loss of pay and other benefits suffered by them as a result of the discrimination against them, in the manner set forth in the amended remedy section of this Decision.

(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to hire, and within 3 days thereafter notify Terry Roovers and Corey Wiegel that this has been done and that the refusals to hire will not be used against them in any way.

(d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of the records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(e) Within 14 days after service by the Region, post at all of its employment facilities and jobsites subject to the jurisdiction of the National Labor Relations Act copies of the attached notice marked “Appendix.”15 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and applicants are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice of all current employees and former employees employed by the Respondent at any time since April 9, 2001.

(f) Within 21 days after service by Region 30, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated, Washington, D.C. September 20, 2007

______________________________________

Robert J. Battista, Chairman

______________________________________

Wilma B. Liebman, Member

______________________________________

Peter C. Schaumber, Member

(seal) National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not discourage employees from engaging in activities on behalf of a labor organization by refusing to hire job applicants because they are members of or supporters of unions, or because they indicate on their employment applications that they are voluntary union organizers.

We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights protected by the Act.

We will offer to Terry Roovers and Corey Wiegel employment in positions for which they applied or if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges.

We will make Terry Roovers and Corey Wiegel whole for any loss of pay and other benefits with interest.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful refusal to hire Terry Roovers and Corey Wiegel and, within 3 days thereafter, notify them in writing that this has been done and that the refusal to hire them for employment will not be used against them in any way.

Suburban Electrical Engineers/
Contractors, Inc.

Eryn M. Doherty, Esq. and Joyce Ann Seiser, Esq., for the General Counsel.

L. Traywick Duffie, Esq. and Lisa A. Kabula, Esq., of Atlanta, Georgia, for the Respondent-Employer.

Mark A. Sweet, Esq. and Terry J. Roovers, Business Manager, of Appleton, Wisconsin, for the Charging Party.

DECISION1

Statement of the Case

Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on August 7 through 9, 20, and 21, 2002, in Appleton, Wisconsin, pursuant to a consolidated complaint and notice of hearing in the subject cases (the complaint) issued on July 29, 2002, by the Regional Director for Region 30 of the National Labor Relations Board (the Board). The underlying charges were filed on various dates in 20012 and 2002 by International Brotherhood of Electrical Workers, Local Union 577 (the Charging Party or the Union) alleging that Suburban Electrical Engineers/Contractors, Inc. (the Respondent or the Employer) has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The Respondent filed a timely answer to the complaint denying that it had committed any violations of the Act.

Issues

The complaint alleges that Respondent engaged in numerous independent violations of Section 8(a)(1) of the Act including coercive interrogation, the enforcement of an overly broad no-solicitation rule prohibiting employees from soliciting at all times, threatening employees with unspecified adverse consequences because of their union activities, creating the impression among its employees that their union activities were under surveillance, and soliciting employees’ views about the Union. Additionally, the complaint alleges that the Respondent disciplined an employee and has failed and refused to consider for employment and/or hire three union representatives because of their membership in and activities in support of the Union, in violation of Section 8(a)(1) and (3) of the Act.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent,3 I make the following

Findings of Fact

i. jurisdiction

The Respondent is a corporation engaged in commercial, industrial, and residential construction as an electrical contractor at its facility in Appleton, Wisconsin, where it annually sold and shipped goods and materials valued in excess of $50,000 directly to customers located outside the State of Wisconsin. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

A. Background

The Union commenced an organizing campaign at Respondent in September 2000. On September 26, 2000, 11 union members filed employment applications with Respondent including Business Agents Greg Young and Corey Wiegel. By letter dated October 26, 2000, Young apprised Respondent that the 11 individuals who previously applied for work are still interested in employment and inquired whether their applications are still current and active (GC Exh. 11). By letter dated October 27, 2000, Human Relations Specialist Missy Van Dyke apprised Young that an applicant whose application expires after 30 days and wishes to keep their application active must come to the Respondent’s offices and fill out a new application (GC Exh. 12).

The new Fond du Lac High School project, a $40-million plus project commenced around January 2001. Respondent was selected to perform the specifications of the electrical installation. Employee Randy Reinders heard that the Respondent needed journeyman electricians to work at the jobsite. Accordingly, in early January 2001, he interviewed with Respondent’s executive vice president, Dave Maass, and on January 5, met with Respondent’s president, Guy Smith. On January 8, Reinders accepted a job offer from Maass and after giving notice to his former employer, started work on January 18. Reinders was not a member of the Union when he commenced his employment at Respondent. Reinders continued to work at the Fond du Lac High School project until he was laid off on March 15. He was upset and voiced his concerns to Maass. Reinders layoff prompted a telephone call to the Union and on or about April 4, he became a dues paying member. On or about April 9, Reinders was recalled from layoff and continued to work as a journeyman electrician at Respondent. Upon his return to work, and after April 9, Reinders became active on behalf of the Union. He distributed union leaflets, talked to coworkers about the benefits of the Union and advocated his beliefs that employees at Respondent would be better off with union representation. Reinders strong position concerning the Union did not go unnoticed and it became apparent to Respondent supervisors that he was a union advocate. After a number of discussions with Respondent supervisors about the Union during early April 2001, Reinders informed Young that the Respondent definitely knew about the Union’s campaign to organize its employees and his involvement in this effort.4 Accordingly, by letter dated April 24, Young informed the Respondent that Reinders is a union salt and he will be assisting the Union in its organizing drive directed at their employees (GC Exh. 28).

Several months before Reinders became active on behalf of the Union and continuing thereafter, a letter writing campaign was undertaken by the Union to apprise Respondent’s employees about the benefits of organization and a comparison of benefits that presently existed at Respondent with those enjoyed under a union contract. For example, on February 16, 23, March 3, 10, April 2, 26, May 4, and July 16 letters were distributed to Respondent employees discussing subjects such as health insurance, pension plan, wages, prevailing wages, and new contract raises (GC Exhs. 13, 14, 15, 16, 18, 21, 22, and 25). By letter dated March 19 to all employees, Respondent acknowledged that the Union has been sending out correspondence on a weekly basis and responded to the numerous assertions of the Union by addressing issues such as health insurance, wages, and retirement benefits.

On April 6, Union Business Agents Young, Wiegel, and Terry Roovers, visited Respondent’s offices and filed individual employment applications. The Union taped the conversation with the human resource personnel and a transcript was entered into the record (GC Exh. 32).

On April 13, Respondent by Van Dyke, telephoned Wiegel at home and left a message for him to contact her. Later that day, Wiegel returned the telephone call and taped their conversation (GC Exh. 40). Van Dyke offered Wiegel a full-time position with Respondent as a journeyman electrician in Alabama working on a project that would entail being away from his home for approximately 12 days. Wiegel apprised Van Dyke that his wife was presently out of town, and due to day care responsibilities for their 3-year old daughter, he would have to check with her as to whether he could accept the position that was scheduled to start on April 18. Because Wiegel had raised a number of questions and it was necessary for him to contact his wife, it was agreed that Van Dyke would attempt to reach Wiegel on April 16, after she had obtained answers to his questions. On April 16, Wiegel and Van Dyke continued their telephone dialogue that was taped by Wiegel and the transcript was entered into the record (GC Exh. 43). Van Dyke responded to the majority of questions that Wiegel raised and informed him that he would not be able to travel home on weekends as it was expected the employees would be working 7 days per week. Van Dyke also confirmed that the offer of employment was for a full-time position to fill an immediate need but the position would remain permanent upon completion of the project. Wiegel requested some time to think about the job offer and promised to contact Van Dyke later that day with a final decision. Wiegel contacted Van Dyke and apprised her that he would have to turn the job offer down primarily due to the limited advance notice about the job, the out-of-town job location with the inability to travel home on weekends and his day care responsibilities.5 During the conversation, Wiegel inquired of Van Dyke whether turning down this position would hurt his chances for future employment with Respondent. Van Dyke replied, “[A]s for as hurting your chances in the future, I think just what I said before is, all the positions will involve travel at some point in time.” Wiegel, after turning down this position, continued to file monthly employment applications with Respondent in order to keep his application current every 30 days.

B. The 8(a)(1) Allegations

1. Complaint Case 30–CA–15473

The General Counsel alleges in paragraphs 8(a) and (b) that Maass on April 9, at its facility, created the impression of surveillance of employees and threatened employees because of their union and/or protected concerted activities. In paragraph 8(c), the General Counsel alleges that Smith interfered with and coerced employees’ in their right to engage in union and/or protected activities.

The Board has held that interrogation is not a per se violation of Section 8(a)(1) of the Act. Rossmore House, 269 NLRB 1176, (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In determining whether an interrogation is unlawful, the Board examines whether, under all the circumstances the questioning reasonably tends to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Rossmore House, supra at 1177–1178. Emery Worldwide, 309 NLRB 185, 186 (1992). Under the totality of circumstances approach, the Board examines factors such as whether the interrogated employee is an open and active union supporter, the background of the interrogation, the nature of the information sought, the identity of the questioner, and the place and method of interrogation. Rossmore House, supra at 1178 fn. 20; Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964); Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).

Reinders testified that on his first day back from layoff on April 9, he attended the regularly scheduled monthly safety meeting for all employees. After the safety presentation, Maass addressed the group and discussed the numerous letters the Union had been sending to its employees discussing issues such as health insurance, pensions, wages, and benefits that could be received under a union contract. Smith announced to the employees that a mole had been passing information to the Union about the Respondent. Maass told employees that they should not sign anything for the Union as it was like signing a blank check and the Union was just looking for dues money. Smith informed employees that they could ask the Union to take their name off the mailing list so they did not have to receive union materials at home.

The Respondent does not deny that it opposes unionization of its employees and has informed employees that it recognizes the privilege to operate union-free. It has told employees that it intends to provide a proemployee work environment that makes unions irrelevant. To this end it has adopted a proemployee policy.6 To counter the large amount of propaganda distributed by the Union, the Respondent also engaged in an active campaign to make its position known that it was against the unionization of its employees. In fact, it distributed notices and flyers to employees that tract the testimony that Reinders gave at the hearing involving the allegations raised in the above noted paragraphs of the complaint (GC Exhs. 56, 57, 58, and 59).7 I have carefully reviewed those documents in conjunction with Reinders’ testimony and conclude that even if Smith and Maass made the statements attributed to them they are legitimate campaign rhetoric responsive to union propaganda protected by Section 8(c) of the Act.8 In regard to Smith’s statement that a mole has been passing information to the Union about the Company, no employee was identified and as of April 9, no action had been taken against any employee because of his or her activities on behalf of the Union. Likewise, I note, that voluminous organizing campaign information had been sent to Respondent’s employees prior to April 9 by the Union, and the Respondent had also responded in writing to the Union’s representations. Moreover, Reinders had joined the Union just prior to his first day back from layoff on April 9, and his attendance at the safety meeting was his first work assignment. Thus, there is no evidence that the Respondent knew on April 9 of his union involvement or if Reinders was the mole that was distributing campaign materials to employees. Indeed, it was not until April 24, that Reinders publicly announced that he was a union salt. Under these circumstances, and particularly noting the noncoercive or threatening content of the Respondent’s flyers and notices set forth in the above-noted exhibits, I conclude that Respondent did not violate the Act. Therefore, I recommend that paragraphs 8(a), (b), and (c) of the complaint be dismissed.

The General Counsel alleges in paragraph 8(d) of the complaint that on April 9 in route to the Employer’s Tuffco jobsite in Green Bay, Gary Goland solicited employees’ views about the Union.

Reinders testified that Goland informed him on the ride to the jobsite that he was upset about receiving so much literature from the Union and he was thinking about suing them to stop receiving the information. During the course of the conversation, Goland inquired of Reinders about his views regarding the Union. Reinders replied, “Well, I’ve worked on both sides of the fence. You know, there is pros and cons to everything.”

Respondent first argues that Goland is not a supervisor within the meaning of the Act and therefore even if he sought Reinders views about the Union, which they deny, the inquiry cannot be attributed to them. Reinders testified that Goland gave him job assignments that he expected to be completed and signed the employee timecards. He also instructed employees to start cleaning up towards the end of their shift. Section 2(11) defines a “supervisor” as:

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

The statutory definition is set forth in the disjunctive; thus, possession of any one of the listed indicia of authority is sufficient to find the individual at issue a supervisor. See, e.g., Providence Hospital, 320 NLRB 717, 725 (1996), affd. sub nom. Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir. 1997). The burden of proving supervisory status is on the party asserting that such status exists.

The Respondent argues that a number of its senior journeyman electrician employees while having the title of foreman on the jobsite are really leadmen who do not exercise independent judgment. In most instances, individuals such as Goland are in charge of a crew of two or three electricians or apprentices. This is what occurred on the Tuffco jobsite. Often, upon the termination of one job when acting as a foreman, senior employees such as Goland will be assigned to another job where he functions as a journeyman electrician under the direction of another foreman or project manager. Thus, the Respondent argues that his performance as a foreman is merely sporadic and is not regular on an ongoing basis. The evidence discloses that Jeffrey Chamberlin was the project manager on the Tuffco jobsite in April 2001. He credibly testified that while Goland signed employee time cards he merely followed his instructions for the assignment of work. Chamberlin met every Monday morning with the job crew to outline their work assignments for the week and personally visited the jobsite to inspect the progress of the work at least 2 days each week. He further testified that Goland had no authority to change work assignments without his permission and could not take any personnel actions against employees. While the record confirms that some time in September 2001, Goland was elevated to the status of a foreman and regularly attended meetings with other supervisors, it does not appear that in April 2001, he possessed that authority (R. Exh. 14). I note, that Goland works side by side with the journeyman electricians and handles the same type of work assignments. According to Van Dyke, Goland was classified as a leadman in April 2001. He did not possess the ability to hire, fire, discipline, or grant time off to members of the work crew. In regard to Goland’s assignment of work and signing the timecards at the jobsite, this evidence, without more, does not establish that his decisionmaking is marked by independent judgment. Rather, I find that his decisions are routine responses to predictable, recurring work assignment issues. See Clark Machine Corp., 308 NLRB 555 (1992). Nor is the fact that Chamberlin appraised Goland on a form for a foreman in 2001, dispositive as to his status as a supervisor under the Act (GC Exh. 54). Indeed, Van Dyke testified that Chamberlin used the foreman form to appraise Goland since the Employer had no such forms specifically for a leadman. Additionally, comparing the indicia possessed by Dave Nass, a foreman and admitted 2(11) supervisor to that of Goland establishes stark differences in their authority. In this regard, Nass has the authority to effectively recommend the hiring of employees, is authorized to issue discipline, and has the authority to grant time off to employees. Goland, as of April 2001, did not possess any of these indicia. Moreover, Nass in April 2001 was paid at a higher hourly rate of pay then Goland.

Based on the foregoing, I conclude that Goland is not a supervisor within the meaning of the Act and, therefore, if he solicited Reinders’ views concerning the Union it cannot be attributed to the Respondent. See Zack Co., 278 NLRB 958 (1986) (finding a foreman was neither a supervisor or agent and, thus, his potentially coercive statements could not be imputed to the employer). In the particular circumstances of this case I am not convinced that even if Goland solicited Reinders’ views about the Union that the Act was violated. In this regard, the two individuals were riding together to the jobsite and engaged in a casual conversation about how Goland felt about the Union. This conversation followed the meeting held earlier that day, where Maass discussed the Union’s active organizing campaign and the Respondent’s strong feelings that a union was not necessary. It was a natural progression as the conversation continued for Goland to have sought out Reinders position on the Union. Likewise, there is no evidence that Goland was aware on April 9, that Reinders was a leading union advocate or a salt on behalf of the Union. Indeed, Reinders had just returned from layoff on that day and had informed no one at Respondent of his status as a union member or efforts to organize the employees.

For all of the above reasons, I recommend that the allegations in paragraph 8(d) of the complaint be dismissed and find that the Respondent did not violate Section 8(a)(1) of the Act.

The General Counsel argues in paragraph 8(e) of the complaint that Dave Maass on April 24, at its facility, interrogated an employee about his union affiliation.

Reinders testified that on April 24, he was smoking a cigarette with Maass at the shop and Maass asked him whether the rumors he heard were correct. Reinders replied, “You mean my union affiliation.” Maass said yes, and added your affiliation is not a problem. Rather, your reviews and work performance is what is important.

At the time this conversation occurred, I note that Reinders had previously joined the Union and was actively advocating the benefits of organization with coworkers at the facility. Likewise, the Respondent at the April 9 safety meeting had announced to all employees that a mole had been passing information to the Union about the Employer. Maass testified that at approximately 6 a.m. on April 24, Reinders came up to him in the Bullpen and informed him that he was with the Union. He was wearing a union cap. Maass told Reinders that he did not care about his affiliation and we base your employment on what you are doing on the job and how you are doing it. Immediately after this brief meeting, Maass made a memorandum of his conversation with Reinders (R. Exh. 18). Thus, I am hard pressed to conclude that Maass interrogated Reinders about his union affiliation as Reinders volunteered the information that he was now with the Union.

Under these circumstances, I conclude that Maass did not engage in interrogation of Reinders as alleged in the complaint. Therefore, I find that the Respondent did not engage in conduct violative of Section 8(a)(1) of the Act.

The General Counsel alleges in paragraph 8(f) of the complaint that on April 24, Goland at the Tuffco jobsite orally promulgated and enforced an overly broad no-solicitation rule prohibiting employees from soliciting at all times.

Reinders testified that later in the day on April 24, after he had the conversation with Maass at the shop, he had a conversation with Goland at the Tuffco jobsite. Goland told Reinders that he was aware of his union affiliation. Goland then instructed Reinders that he could talk about the Union only on nonpaid time and since he was always on paid time, he could not talk about the Union at any time.

Based on my above finding that in April 2001 Goland was not a supervisor within the meaning of 2(11) of the Act, I cannot find that even if such a statement was made, it can be attributed to the Respondent. Nor can I find and the General Counsel did not produce any evidence that Goland was an agent of the Respondent for the purpose of promulgating and enforcing an overly broad no solicitation rule. If on the other hand others disagree with my finding that Goland is not a statutory supervisor, I would find that Goland made the above statement and such a prohibition is overly broad as it precludes solicitation before and after work and on mid-day breaks or lunchbreaks. I note that when Goland informed Reinders that he was aware of his union affiliation, it occurred later in the day after Maass had earlier learned that Reinders was now with the Union. Thus, I conclude that Maass disseminated this information to others including Goland. Therefore, I find that Reinders rendition of the conversation has a ring of truth to it and conclude the timing of the statement is consistent with Goland earlier learning that Reinders was affiliated with the Union. Therefore, if it is determined that Goland is a statutory supervisor, I would find that Goland’s promulgation and enforcement of an overly broad no-solicitation rule prohibiting employees from soliciting at all times is violative of Section 8(a)(1) of the Act.

The General Counsel asserts in paragraphs 8(g) and (h) of the complaint that on May 10, Nass engaged in surveillance and isolated an employee because of his union and/or protected activities.

Reinders testified that May 10 was his last day on the Mirro jobsite. This was a project that involved electrical work associated with the closing of certain areas of a large plant in excess of 50 acres. The incidents in question mainly took place within the main plant and the Chilton/downtown facility that is located approximately 3 or 4 miles from the main plant.

During most of the day on May 10, Reinders performed work at the downtown plant along with Nass. Towards the end of the day, as both Reinders and Nass drove together towards the main facility, Nass apprised Reinders that he needed to go to the main plant for a short meeting with the engineers before leaving to return to the shop. Upon arriving at the main plant, Nass instructed Reinders to remain near the entrance while he briefly met with the engineers so he could quickly locate him before they returned to the shop together. The General Counsel alleges that Nass purposely did this to isolate Reinders from meeting with the Kraft employees who were working on the site so as to prevent him from discussing the Union with them. Nass returned from his brief meeting with the engineers and they left the jobsite to return to the Respondent’s facility. During the ride back, Reinders asserts that they engaged in a conversation about the Union. In this regard, they discussed the pros and cons about having a union at the Respondent and Nass told Reinders that he was uncomfortable about informing the Employer about who Reinders talked to and his involvement with the Union. According to Reinders, Nass informed him that the Respondent supervisors had previously met with an attorney who instructed them how to handle a union organizing campaign and that currently he was instructed to keep Reinders away from the Kraft employees who were also working on the Mirro jobsite. Nass also informed Reinders, during this conversation, that he was instructed by Maass to report to him daily as to whom Reinders saw and talked to on the jobsite.

Nass, who has functioned as a project foreman for approximately 5 years, denied that he was directed to keep an eye on Reinders or that he isolated Reinders from the Kraft employees to preclude him from talking with them about the Union. Likewise, Nass denies that he interrogated Reinders about his union activities.

I note that at the time that this incident occurred, the Union had apprised Respondent that Reinders was a Union salt (GC Exh. 28). Thus, I conclude that Nass was fully aware that Reinders was an active advocate on behalf of the Union. Reinders testified, however, that he was very respectful of Nass and complimented his ability on how to run a job and treat people fairly and with respect. Moreover, Reinders testified that Nass never interrogated him about his involvement in the Union. I found Nass to be a very credible witness who had a low-key demeanor and appeared to tell his story in a forthright manner. Thus, I am hard pressed to find that Nass, as alleged by the General Counsel, engaged in surveillance or attempted to isolate Reinders from meeting with the Kraft employees at the main plant. As a practical matter, the Kraft employees had no connection with Respondent and the Union showed no interest in organizing those employees unlike those of Respondent. Thus, I credit Nass’ testimony that he directed Reinders to remain at the entrance of the main plant so as to facilitate meeting him in a fixed location after his anticipated brief meeting with the engineers. Indeed, the main plant is a large facility of approximately 50 acres and Nass did not want to waste time in looking for Nass in other sections of the plant before they left to drive back to Respondent’s facility.

Based on the forgoing, and particularly noting Nass’ forthright testimony and demeanor regarding the events of May 10, I find that the Respondent did not engage in the allegations alleged in paragraphs 8(g) and (h) of the complaint. Therefore, I recommend that these 8(a)(1) allegations be dismissed.

2. Complaint Case 30–CA–16086

On May 14, Young wrote a letter to Respondent informing them that because of their continued harassment and intimidation of Reinders concerning his right to form, join, and assist a labor organization, Reinders has entered into an unfair labor practice strike against the Employer effective immediately (GC Exh. 30). Reinders remained on strike and did not work at Respondent until he made an unconditional offer to return to work and was rehired in March 2002. Upon returning to work, Reinders wore a union sticker on his hardhat and continued to advocate the Union in conversations with his coworkers. He also regularly attended union meetings and placed notices around the facility concerning prevailing wage jobs and information on how to contact the Union.

The General Counsel alleges in paragraph 5(a) of the complaint that on March 25, 2002, at the Employer’s Timberlodge Brew Pub jobsite, Scott Westphal, created the impression among its employees that their union activities were under surveillance by Respondent.

Reinders was assigned to hook up some motion sensors at the Brew Pub jobsite. Reinders asked Westphal, an admitted 2(11) supervisor, whether he would get chewed out similar to what happened previously on the job when he was harassed about incorrectly wiring a number of switches and lights.9 Reinders informed Westphal that he didn’t appreciate the way it was handled. Westphal said, “[T]hat he didn’t appreciate all the shit going on with Reinders on the job. He was just doing what Maass told him to do.”

Even if Westphal made the above statement, I am hard pressed to conclude that this constitutes surveillance. There is no reference in the statement that Westphal was keeping an eye on Reinders or that Maass instructed him to do so. Likewise, inferring that “all the shit” referred to Reinders union activities is speculative as it could refer to many things including the previous problems that Westphal experienced with Reinders job performance.

Accordingly, I conclude that even if Westphal made the statement, it is ambiguous at best. Therefore, I find that the allegations of paragraph 5(a) of the complaint are not sustainable and recommend that they be dismissed.

The General Counsel alleges in paragraph 5(b) of the complaint that Dave Chappel on April 2, 2002, in the Employer’s van in route to the Tuffco jobsite, created the impression among its employees that their union activities were under surveillance by Respondent.

Reinders worked at the Tuffco jobsite for approximately 7 days in April 2002 along with Chappel and an apprentice. Reinders testified that he was in the Employer’s van in route to the jobsite along with Chappel. Reinders expressed his frustrations to Chappel that Project Manager Chamberlin had previously instructed him to take the union sticker off his hardhat. Chappel said, “I’m tired of being in the middle of this union shit. Chamberlin wants to know what is going on and he wants me to keep an eye on you.”

Chappel, as did Goland, signed employee timesheets on the Tuffco jobsite (GC Exh. 65). The evidence further establishes that Chappel gave work assignments to members of the crew including Reinders and could tell employees to correct or do work over if it was not performed accurately. Chappel testified that he did not consider himself to be a foreman on the Tuffco jobsite. Rather, his hourly pay reflected that his status was that of a journeyman electrician. He further indicated that Chamberlin never informed him that he was to function as a foreman while on the Tuffco jobsite. Chamberlin testified that he was in charge of the Tuffco job in April 2002, and never designated Chappel as the foreman on that project. Chamberlin indicated, as with Goland, that in April 2002 he gave instructions at the beginning of each week to the members of the crew on how the work was to be performed. While Chappel imparted these instructions to members of the crew, he could not change them without Chamberlin’s permission. Chamberlin agreed that in his absence, as the crew chief, Chappel would have the authority to instruct a worker to redo certain work that was not done correctly. As previously discussed above concerning the supervisory status of Goland, I am of the opinion that Chappel on April 2, 2002, did not possess the indicia of a 2(11) supervisor. His duties and responsibilities were no different then discussed above for Goland. In regard to Chappel’s assignment of work and signing the timecards at the jobsite, this evidence, without more, does not establish that his decisionmaking is marked by independent judgment. Rather, I find that his decisions are routine responses to predictable, recurring work assignment issues. Moreover, Van Dyke credibly testified that it was not until June 2002, that Chappel received a pay increase to $23 per hour that placed him in the foreman pay scale classification.10 Under these circumstances, I find that even if Chappel made the statement attributed to him it cannot be binding on the Respondent. On the other hand, if others disagree and determine that Chappel is a supervisor within the meaning of the Act, I am inclined to credit Reinders concerning this conversation. His recall of this event was precise and he credibly testified that after he returned from his unfair labor practice strike he routinely wore a union sticker on his hardhat. Chappel acknowledged that he discussed with Reinders the wearing of a union sticker on his hardhat. I note that in April 2002, it was common knowledge that Reinders was an active union advocate and the union organizing campaign at the Respondent had been in progress for well in excess of a year. Under these circumstances, and only if Chappel is found to be a supervisor within the meaning of the Act, I would find that the Act was violated as alleged by the General Counsel when Chappel created the impression among its employees that their union activities were under surveillance.

In summary, due to my finding that Chappell was not a statutory supervisor in April 2002, I recommend that paragraph 5(b) of the complaint be dismissed.

The General Counsel asserts in paragraph 5(c) of the complaint that on April 5, 2002, at the Employer’s facility, Sam Schultz threatened its employees with unspecified adverse consequences because of their union activities.

Reinders testified that on April 5, 2002, he was present at the Employer’s facility along with Schultz and Chappel. He heard Schultz state to Chappel, “Well Dave, did you take care of our union problem.” Chappel said, “You mean Randy.” Schultz replied, “Oh, sorry, I thought you were someone else.”

Schultz and Chappel testified about this conversation in a completely different fashion. Schultz asserts that he said to Chappel, “Where is your buddy.” Chappell said, “Who is that.” Schultz pointed behind him towards Reinders and said, “I thought you were Mike.” Chappel concurred that this was the context of the conversation.

As previously discussed above, Chappel was fully aware of Reinders status as a union representative and if he is found to be a supervisor, I concluded that he made statements violative of the Act. Reinders version of the conversation has a ring of truth to it and seems more plausible. Schultz, who has been a project manager and senior supervisor for 10 years, obviously knew who Reinders was and it was common knowledge that Reinders was a union salt. Reinders recollection of this conversation was convincing and his testimony was clear and precise. Under these circumstances, I find that Schultz’ statement was threatening in nature and was linked to Reinders’ union activities.11 Therefore, I recommend that the Respondent violated Section 8(a)(1) of the Act.

The General Counsel alleges in paragraph 5(d) of the complaint that sometime in April 2002 at the Employer’s Linen and Things jobsite, Matt Holz interrogated its employees about their union activities and the union activities of other employees.

To sustain the above allegation, the General Counsel relies on the testimony of former Respondent employee Michael Smith. He testified that during the second week of April 2002, while he was working on the Linen and Things jobsite along with Reinders, Holz asked him about the details of a conversation that he had with Reinders. Smith informed Holz that they were discussing family details that took place over the weekend. In response to questions that I proffered to Smith, he admitted that Holz never asked him anything during their conversation about the Union. Likewise, Smith never inquired whether Reinders was involved in the Union. Under these circumstances, it cannot be established that Holz made any statements violative of the Act. Additionally, based on my previous discussions about the indicia possessed by Goland and Chappel while serving as crew chiefs, I find that Holz was not a supervisor within the meaning of Section 2(11) of the Act in April 2002, even if he held the title of foreman on the Linen and Things jobsite. In this regard, Project Manager Tony Koszalinski credibly testified that in April 2002, he designated Troy Saunders and Steve Van Camp as foreman on the Linen and Things jobsite and at no time did he ever designate Holz as the foreman. As further evidence that Holz was not a foreman on the Linen and Things jobsite, the payroll records during this period show that Holz was paid an hourly wage of $21 while Saunders and Van Camp were paid foreman scale of $22 per hour. Thus, even if Holz made the statements attributed to him, they cannot be imputed to Respondent.

For all of the above reasons, I find that the Respondent did not violate Section 8(a)(1) of the Act and recommend that the allegations in paragraph 5(d) of the complaint be dismissed.

C. The 8(a) and (3) Allegations

1. Discipline of Randy R