Town & Country Electric

1250 309 NLRB No. 181 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Oral argument additionally was held in Sunland Construction Co., Cases 15–CA–10618–1 et al. and Sunland Construction Co., Cases 15–CA–10927–2 et al. 2 The Chamber of Commerce did not file a brief. Subsequently, the AFL–CIO submitted a letter citing a recently issued relevant court decison. 3 Respondent Town & Country Electric has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions un- less the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Respondent Town & Country Electric further contended that the judge was biased in that he prejudged the issues before him. Based on our review of the entire record, including the judge’s decision, we conclude that the Respondent’s contentions are without merit. 4 Although he found that Respondent Ameristaff Personnel Con- tractors, Ltd. coercively interrogated an applicant for employment, the judge concluded that the violation was adequately remedied by his recommended Order regarding Ameristaff’s principal, Respond- ent Town & Country, which he found also violated Sec. 8(a)(1) of the Act by this conduct. We find merit in the General Counsel’s ex- ception to the judge’s failure to require that Respondent Ameristaff, which was acting as the agent for Respondent Town & Country in the procurement of employees, also cease and desist from interrogat- ing employees in violation of the Act. Accordingly, we shall order Respondent Ameristaff to cease and desist from such conduct and to post an appropriate notice. 5 The Union offered to pay these members the difference between union scale and the Respondent’s wages and benefits if they would attempt to organize the Respondent’s nonunion employees. 6 In adopting the judge’s finding that Respondent Town & Country Electric violated Sec. 8(a)(3) of the Act by refusing to retain em- ployee Malcolm Hansen, we stress the evidence here that, as the judge found, the pivotal event leading to Town & Country’s decision was Hansen’s protected concerted activity in seeking to organize the unit employees during their lunch break on September 14, 1987. 7 All dates are in 1989 unless otherwise noted. Town & Country Electric, Inc. and Ameristaff Per- sonnel Contractors, Ltd. and Charles Evans Town & Country Electric, Inc. and Ameristaff Per- sonnel Contractors, Ltd. and International Brotherhood of Electrical Workers, Local 292, AFL–CIO Town & Country Electric, Inc. and International Brotherhood of Electrical Workers, Local Union 343, AFL–CIO. Cases 18–CA–11035, 18– CA–11044, and 18–CA–11080 December 16, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH On September 18, 1990, Administrative Law Judge Joel A. Harmatz issued the attached decision. Re- spondent Town & Country Electric filed exceptions and a supporting brief; the General Counsel filed cross-exceptions, a supporting brief, and an answering brief to the Respondent’s cross-exceptions; and Re- spondent Town & Country Electric filed an answering brief to the General Counsel’s cross-exceptions. On January 22, 1992, the Board scheduled oral argu- ment because this case raised important 8(a)(3) and (1) issues with respect to whether paid union organizers are ‘‘employees’’ within the meaning of the Act, if so, whether it violates the Act to refuse to hire a paid or- ganizer.1 Thereafter, the Respondent, the General Counsel, and the Charging Party Union, and, as amici curiae, the American Federation of Labor and Con- gress of Industrial Organizations and its Building and Construction Trades Department, AFL–CIO, the Chamber of Commerce of the United States of Amer- ica, the Associated General Contractors of America, Inc., and the Associated Builders and Contractors Inc., presented oral argument before the Board. The Re- spondent and the amici also filed briefs.2 The Board has considered the decision and the record in light of the exceptions, briefs, and oral argu- ment, and has decided to affirm the judge’s rulings, findings,3 and conclusions and to adopt the rec- ommended Order as modified below.4 For the reasons discussed below, we find that paid union organizers Michael Priem and Greg Shafranski, as well as nine other union members who sought em- ployment with the Respondent,5 are ‘‘employees’’ within the meaning of the Act. Thus, we agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to interview and con- sider for employment Priem, Shafranski, and eight other union members because of their union affiliation and by discharging employee Malcolm Hansen because of his union activities.6 I. BACKGROUND A. Facts Town & Country Electric, Inc. (Town & Country) is the largest nonunion electrical contractor in the State of Wisconsin. In early September 1989,7 Boise Cas- cade awarded Town & Country a contract to perform electrical renovation work at Boise’s facility in Inter- national Falls, Minnesota. Town & Country was to begin work on September 11. There is a Minnesota statutory requirement that an electrical contractor em- ploy one electrician licensed by the State for every two unlicensed electricians engaged in such work on the jobsite. Town & Country did not have a single elec- trician licensed in Minnesota at the time Boise Cas- cade awarded it the contract. To obtain electricians licensed in Minnesota, Town & Country retained Ameristaff, a temporary employ- ment agency based in Minneapolis, for recruitment purposes. Under this arrangement, Ameristaff was re- sponsible for advertising job opportunities related to the Boise-Cascade operation and assumed liability for 1251 TOWN & COUNTRY ELECTRIC 8 The General Counsel did not allege that O’Mellan’s questioning of the phone applicants violated Sec. 8(a)(1) of the Act. 9 We adopt the judge’s finding that the Respondent did not violate Sec. 8(a)(3) by refusing to consider Jones for employment, or an- other union member, Roger Chartrand, who arrived at the Embassy Suites as the Respondent’s representatives were departing. 10 The General Counsel did not allege that Town & Country’s fail- ure to hire Weseman constituted a violation. fringe benefits earned by employees on its payroll who worked there. Town & Country, however, retained ex- clusive discretion regarding interviewing, hiring, the setting of wage rates and granting of increases, super- vising and the discharge of employees on the Boise- Cascade project. The judge found, and we agree, that Town & Country exercised plenary authority and con- trol over employees retained by Ameristaff for its ac- count and that, even absent a joint-employer relation- ship, Ameristaff was an agent whose conduct in con- nection with hiring for the Boise project was binding on Town & Country. On September 3, Ameristaff ran an advertisement in a major Minneapolis newspaper announcing employ- ment opportunities for ‘‘licensed journeymen elec- tricians’’ and including its telephone number. Ron Sager, Town and Country’s manager of human re- sources, made it clear to Ameristaff before the adver- tisement was placed that job applicants had to be ‘‘able to work a merit [nonunion] shop.’’ When appli- cants responded to the advertisement, Ameristaff’s re- ceptionist, Lorrie Ann O’Mellan, asked them whether they preferred to work union or nonunion and, if the job seeker had worked only union projects, whether the person would work nonunion.8 Steven Buelow, Ameristaff’s president, arranged for Town & Country to interview applicants at the Embassy Suites in Min- neapolis on September 7. Members and officials of International Brotherhood of Electrical Workers, Locals 292 and 343, learned of Ameristaff’s job advertisements. The Unions, which had authorized their members to work nonunion for or- ganizational purposes, encouraged unemployed mem- bers to apply and, if hired, to organize the jobsite. There was a fund the Unions had established to reim- burse members for wage, travel, and health benefit dif- ferentials they incurred on nonunion jobs. On September 7, Sager and Dennis Defferding, the Respondent’s project manager, traveled from Appleton, Wisconsin to Minneapolis to conduct job interviews for the Boise-Cascade project. They did not arrive at the Embassy Suites until about 11 a.m. because their flight had been delayed for several hours by adverse weather conditions. When they arrived, there were about a dozen unemployed members of IBEW Local 292, including Priem and Shafranski, waiting to inter- view. None had previously scheduled interviews, ex- cept for Malcolm Hansen who had called Ameristaff that morning and was told by O’Mellan to report for an interview at the Embassy Suites. The only other ap- plicant appearing for an interview, Gary Weseman, was not a union member and had previously scheduled an interview through Ameristaff. Buelow distributed applications, under the Ameristaff logo, to all the ap- plicants. Town & Country began the interviews with Craig Jones, a union member who had no appointment, ap- parently because Jones said that he had to leave soon to care for his children. During the interview, Jones characterized Town and Country’s starting rate of $15 per hour as an insult. Jones also told the Town & Country representatives that he would have to discuss out-of-town work with his wife. Town & Country told Jones that it would keep his application on file. There was no further contact between Jones and Town & Country representatives.9 Town & Country next inter- viewed Gary Weseman but did not hire him.10 Meanwhile, Buelow informed the remaining appli- cants that the job was nonunion. The union members responded that they were interested in any work avail- able. Buelow left the room and, about 15 minutes later, returned and read off a list of seven names. None were present. After identifying that group of names as those applicants with prearranged appointments, Buelow said that he did not know if anyone without an appointment would be interviewed. Priem, one of the two paid union organizers, told Buelow that there were at least eight licensed journeymen present who could take the place of those applicants who had failed to appear. After Town & Country interviewed Jones and Weseman, Buelow reported to Sager that none of the other applicants had appointments. Sager expressed cu- riosity as to how those applicants without appoint- ments had known about the interviews. Buelow at some point showed him several of the applications and commented, ‘‘I think they’re union.’’ Sager decided to cancel further interviews and return to Appleton pur- portedly because his attendance was required for a manpower meeting at 3:30 that afternoon. Yet, Sager admitted that he had previously learned, on September 5, of the licensed journeyman/helper ratio that Min- nesota law requires. It is undisputed that Town & Country employed no electricians licensed in Min- nesota at the time Sager decided to return to Appleton. When Sager announced to the remaining applicants that he would conduct no further interviews, Hansen protested that he had called the number in the news- paper advertisement and was told to ‘‘show up.’’ Han- sen announced that he would not leave until Sager interviewed him. After threatening to call local authori- ties and have the union members removed from the hotel room, Sager said that he would check about Han- sen’s situation and ‘‘honor the commitment’’ if Han- 1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sen had made an appointment. Buelow confirmed that Hansen had called Ameristaff so Sager interviewed him. Sager then announced to the other applicants that he would not interview anybody else. Town & Country conducted several interviews with Hansen before deciding to hire him. On September 14, 2 days after Hansen began work, the Respondent dis- charged Hansen because, as the judge found, he at- tempted to organize the Respondent’s nonunion em- ployees working at the jobsite. B. Judge’s Findings The judge found that, considering Town & Coun- try’s dire need at the time for electricians who were licensed in Minnesota and the evidence that Town & Country aborted the Embassy Suites interviews imme- diately after learning of the remaining applicants’ union affiliation, the General Counsel established a prima facie case that Town & Country had discriminatorily refused to consider these applicants for hire notwithstanding its subsequent hire of Hansen. In considering Town & Country’s defenses, the judge rejected its contention that Sager did not want to interview anyone whom Ameristaff had not prescreened. The judge stressed that Town & Country had interviewed Jones without this condition being met and that Sager, who should have known that Ameristaff had screened only seven applicants, ex- pressed pleasure on arriving at the Embassy Suites and observing that the turnout was larger than anticipated. The judge found it incomprehensible that, given Sager’s purported urgency about attending the man- power meeting later that day, Sager made no effort on his arrival at the Embassy Suites to monitor the inter- viewing process so as to best utilize the limited time he claimed was available for the interviews. For these reasons, the judge found that, except for Jones and Chartrand, discussed supra, Town & Country violated Section 8(a)(3) by failing to demonstrate that it would not have interviewed and considered for hire those named in the complaint in the absence of their union affiliation. Regarding Hansen’s discharge, the judge concluded that Town & Country had failed to substantiate by credible evidence that it would have discharged Han- sen even in the absence of his organizational activity. The judge distinguished the Fourth Circuit’s decision in H. B. Zachry Co. v. NLRB, 886 F.2d 70 (1989), de- nying enf. to 289 NLRB 838 (1988), discussed infra, from the present case because, in his view, the evi- dence showing that the Union planned to reimburse Hansen for any wage and benefit losses he incurred on the nonunion job did not warrant a finding that Hansen was a paid union organizer. C. Exceptions Based on the court’s decision in Zachry, supra, the Respondent argues in its exceptions that the discriminatees were not bona fide applicants under the statute. The Respondent notes that Priem and Shafranski were full-time salaried business representa- tives and that the Union paid Hansen full journeyman’s scale, in addition to the pay he received from Ameristaff, for the 31 hours that he worked at the Re- spondent’s jobsite. The Respondent claims that the Union’s payments to Hansen put him in the same cat- egory as full-time salaried business agents whom the court excluded from the definition of employee under Section 2(3). Regarding the rest of the alleged discriminatees, the Respondent argues that no violation occurred when it rejected their applications because, if they had been hired, the Union’s ‘‘salting resolution’’ would have paid them the difference between the Re- spondent’s wages and union scale and thus disqualified them under Zachry. The Respondent also contends that the alleged discriminatees did not qualify as statutory employees because their first obligation under the salting resolu- tion was to fulfill the Union’s organizing purpose. The Respondent asserts that it was the Union which was the the discriminatees’ employer in the circumstances here. According to the Respondent, these union mem- bers would only work for it under the Union’s direc- tion and, in the process, they would interfere with the self-determination rights of its other employees. Fur- ther, because the salting resolution required members to leave the nonunion jobsite once organizing had ceased, the Respondent argues that none of the alleged discriminatees met the statutory definition of employee because they were not seeking permanent employment. Thus, for the above reasons, the Respondent urges the Board to find that the applicants for employment whom it rejected and Hansen were not employees under Section 2(3) of the Act. II. ANALYSIS A. Overview We agree, for the reasons stated by the judge, that the Respondent violated Section 8(a)(3) and (1) by re- fusing to hire Priem, Shafranski, and eight other union members who applied for work and by later discharg- ing employee Malcolm Hansen because of his union activities. Additionally, in finding these 8(a)(3) viola- tions, we specifically affirm the judge’s findings that Hansen, as well as the discriminatees that Town & Country rejected for employment because of their union affiliation, are statutory employees for the rea- sons fully discussed below. 1253 TOWN & COUNTRY ELECTRIC 11 Websters Third New International Dictionary, 743 (rev. 1971). See also Funk & Wagnalls Standard College Dictionary, 433 (1973), which defines ‘‘employee’’ as ‘‘one who works for another in return for salary, wages, or other consideration.’’ 12 We assume that the statutory purpose is expressed by the ordi- nary meaning of its words. INS v. Phinpathya, 464 U.S. 183, 189 (1984). 13 2A Singer, Sutherland Statutory Construction, Sec. 47.23 (4th ed. 1973) (Suppl. 1991). 14 Compare NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) (based on legislative history of the Taft-Hartley Act, managerial em- ployees are not covered by Act, although not explicitly excluded from Sec. 2(3)). 15 H.R. Rep. No. 969, 74th Cong., 2 Leg. Hist. 2917–2918 (NLRA 1935). 16 2 Leg. Hist. 3119, 3220 (NLRA 1935). B. Paid Union Organizers as ‘‘Employees’’ Within the Meaning of Section 2(3) 1. The definition of ‘‘employee’’ We begin our analysis recognizing that applicants are ‘‘employees.’’ Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941). As applicants are ‘‘employees,’’ the question is whether paid union organizer applicants are employees. Congress, in 1935, broadly defined ‘‘employee’’ in Section 2(3), providing that: The term ‘‘employee’’ shall include any em- ployee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment The word ‘‘employee’’ both in common usage and in the law ordinarily includes individuals concurrently working for different employers. ‘‘Employee’’ com- monly refers to individuals ‘‘employed by another,’’ ‘‘under wages or salary,’’11 without reference to any requirement that they be employed by only a single employer. Similarly, a standard legal definition of ‘‘employee’’ encompasses any ‘‘person in the service of another under any contract of hire, express or im- plied, oral or written, where the employer has the power or right to control the employee in the material details of how the work is to be performed,’’ without reference to, or proscription of, dual employment. Black’s Law Dictionary 471 (rev. 5th ed. 1979). As long as union organizers employed by or seeking work with an employer do so for wages in return for as- signed work, they meet the standard dictionary defini- tion of ‘‘employee.’’ Giving Section 2(3), as amended, its ‘‘ordinary meaning,’’12 we find that the definition of ‘‘employee’’ as ‘‘any employee’’ is sufficiently ex- pansive to encompass paid union organizers. 2. Exclusions Next we look to the exclusions in Section 2(3). Con- gress in 1935 excluded specific categories from its broad definition of ‘‘employee,’’ i.e., agricultural la- borers and individuals performing domestic service in the home. In 1947, Congress added to the exclusions so that the 2(3) definition of ‘‘employee’’ now ex- cludes: any individual employed as an agricultural la- borer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any in- dividual employed as a supervisor, or any individ- ual employed by an employer subject to the Rail- way Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined. ‘‘Paid union organizers’’ do not appear in these ex- clusions. Under the well-settled principle of statutory construction—expressio unius est exclusio alterius— only these enumerated classifications are excluded from the definition of ‘‘employee.’’13 Accordingly, full-time, paid union organizers are ‘‘employees’’ within the ordinary meaning of this provision. See gen- erally State Bank of India v. NLRB, 808 F.2d 526, 531–532 (7th Cir. 1986), cert. denied 483 U.S. 1005 (1987). 3. Legislative History We must also look to the legislative history, how- ever, because a statute will not be given its ordinary meaning if there is ‘‘a clearly expressed legislative in- tention to the contrary.’’ Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 108 (1980). There is no evidence in the legislative history that Congress intended Section 2(3), at least as to paid union organizers, to be more restrictive than the ordi- nary meaning of its terms.14 On the contrary, the legis- lative history reflects Congress’ intent to expansively interpret ‘‘employee.’’ Although Congress did not specifically consider the status of union organizers when enacting Section 2(3), it expansively referred to ‘‘employees’’ as ‘‘workers,’’ ‘‘wage earners,’’ ‘‘workmen,’’15 and ‘‘every man on the payroll.’’16 Even when Congress amended Section 2(3) in 1947 specifically to exclude additional classi- fications from the definition of ‘‘employee,’’ it did not narrow the general definition of ‘‘employee.’’ Rather, Congress continued to describe ‘‘employees’’ inclu- sively as individuals ‘‘work[ing] for another for hire,’’ 1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 17 H.R. Rep. No. 245, 80th Cong., 1st Sess., 1 Leg. Hist. 309 (LMRA 1947). 18 See Florida Power & Light v. Electrical Workers Local 2164, 417 U.S. 790, 807–811 (1974). 19 See also Kelley v. Southern Pacific Co., 419 U.S. 318, 324 (1974); Dellums v. Powell, 566 F.2d 216, 222 and fn. 22 (D.C. Cir. 1977), cert. denied 438 U.S. 916 (1978); Beaver v. Jacuzzi Bros., 454 F.2d 284, 285 (8th Cir. 1972); Mazer v. Lipshutz, 360 F.2d 275, 278 (3d Cir. 1965), cert. denied 385 U.S. 833 (1966). 20 This position recently was endorsed by the District of Columbia Court of Appeals in Willmar Electric Service v. NLRB, 968 F.2d 1327 (D.C. Cir. 1992). and ‘‘work[ing] for wages and salaries under direct su- pervision.’’17 Further, Congress reassessed and rebalanced the right of an employer to require undivided loyalty from some of its workers with respect to labor unions by its 1947 amendment of Section 2(3) excluding ‘‘super- visors’’ from the definition of ‘‘employee.’’18 Had Congress concluded that paid organizers were not enti- tled to the protection afforded ‘‘employees’’ by the statute, it knew how to exclude them. It did not. Under the broad terms employed by Congress when enacting and amending Section 2(3), paid organizers applying for work, or hired to work for wages under the employer’s direct supervision, meet the require- ments for statutory ‘‘employee’’ status. 4. Interpretations of Section 2(3) a. The Supreme Court Consistent with the inclusive language of Section 2(3), and Congress’ expressed intent to expansively de- fine ‘‘employee,’’ the Supreme Court has consistently interpreted Section 2(3) broadly to cover individuals not explicitly excluded. The seminal case is Phelps Dodge Corp. v. NLRB, supra, where the Supreme Court broadly interpreted the Act to include applicants for work as well as actual hires. The Court also re- jected Phelps Dodge’s argument that certain strikers who had obtained employment elsewhere were not en- titled to reinstatement because they were not statutory ‘‘employees.’’ Writing for the Court, Justice Frank- furter twice characterized the definition of ‘‘em- ployee’’ in Section 2(3) as a ‘‘broad’’ one, which ‘‘ex- pressed the conviction of Congress ‘that disputes may arise regardless of whether the disputants stand in the proximate relation of employer and employee . . . .’’’ Id. at 192 (quoting from H. R. Rep. No. 1147, 74th Cong., 1st Sess. p. 9). In these situations, emphasized Justice Frankfurter, ‘‘to deny the Board power to wipe out the prior discrimination . . . would sanction a most effective way of defeating the right of self-orga- nization.’’ Id. at 193. Following Congress’ 1947 amendment of Section 2(3) to exclude supervisors, independent contractors, and others, the Supreme Court reaffirmed an expansive interpretation of ‘‘employee.’’ In Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166–168 (1971), the Supreme Court held that ‘‘employee’’ under Section 2(3) broadly covers those who work for another for hire, although not those who have retired. Similarly, in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984), the Court said that the ‘‘breadth of 2(3)’s definition is striking: the Act squarely applies to ‘any employee.’ The only limitations are specific exemp- tions’’ contained in the statute. In concluding that un- documented aliens were statutory ‘‘employees,’’ the Court relied not only on Section 2(3)’s broad language, but also on the conclusion that an expansive interpreta- tion of the statute was consistent with ‘‘the Act’s avowed purpose of encouraging and protecting the col- lective-bargaining process.’’ Id. at 892. The Supreme Court’s analysis of the word ‘‘em- ployee’’ under the Employee Retirement Income Secu- rity Act (ERISA), a statute that also addresses work place issues, endorses the application of common law agency principles. Thus, in Nationwide Mutual Insur- ance Co. v. Darden, 112 S.Ct. 1344, 1349 (1992), the Supreme Court, finding that ‘‘employee’’ under ERISA was ill defined, turned to the common law, quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739–740 (1989): [W]hen Congress has used the term ‘‘employee’’ without defining it, we have concluded that Con- gress intended to describe the conventional mas- ter-servant relationship as understood by common law agency doctrine. Only where employing traditional agency principles would thwart congressional intent or produce absurd results will the Court refuse to apply those principles. Nationwide Mutual Insurance Co. v. Darden, supra, 112 S.Ct. at 1349. Under common law agency principles: A person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other. Restatement (Second) of Agency, Section 226, pp. 498–500 (1957).19 NLRA Section 2(3), like its ERISA counterpart, cir- cuitously defines ‘‘employee’’ as ‘‘any employee.’’ There being no contrary congressional intent, we find no bar to applying common law agency principles to the determination whether a paid union organizer is an ‘‘employee.’’ Under those principles, paid union orga- nizers cannot be excluded from the definition of ‘‘em- ployee’’ on the basis that they are paid by their union as well as by the employer they are attempting to orga- nize.20 1255 TOWN & COUNTRY ELECTRIC 21 See also Sure-Tan, Inc. v. NLRB, supra, 467 U.S. at 891; Bayside Enterprises v. NLRB, 429 U.S. 298, 304 (1977); NLRB v. Hearst Publications, 322 U.S. 111 at 130 (1944); Iron Workers v. Perko, 373 U.S. 701, 706 (1963). 22 Briggs Mfg. Co., 75 NLRB 569, 570 (1947); Oak Apparel, 218 NLRB 701 (1975). See also Consolidation Coal Co., 266 NLRB 670, 674 (1983); Giant Food Markets, 241 NLRB 727, 728 fn. 3 (1979); Little Rock Crate & Basket Co., 227 NLRB 1406 (1977). 23 Briggs Mfg. Co., supra, 75 NLRB at 570; Little Rock Crate & Basket Co., supra; Oak Apparel, supra, 218 NLRB at 707; L. D. Brinkman Southeast, 261 NLRB 204, 210 (1984). 24 The Board also rejected the contention that the paid organizers in Oak Apparel were not employees because the union directed their organizational activities and controlled their employment through compensation. 25 Anthony Forest Products, 231 NLRB 976, 977–978 (1977); Lyndale Mfg. Corp., 238 NLRB 1281, 1283 fn. 3 (1978); Margaret Anzalone, Inc., 242 NLRB 879, 888 (1979); Palby Lingerie, Inc., 252 NLRB 176, 182 (1980); Pilliod of Mississippi, 275 NLRB 799, 811 (1985); Multimatic Products, 288 NLRB 1279, 1313 fn. 226, 1316 (1988). 26 The Second Circuit refused to enforce the Board’s order on other grounds, however. In sum, Supreme Court decisions support a reading of Section 2(3) that includes paid union organizers within the definition of employee. b. The Board Courts repeatedly have held that the task of deter- mining ‘‘the contours of the term ‘employee’ properly belongs to the Board.’’ Chemical Workers v. Pitts- burgh Plate Glass, supra, 404 U.S. at 167.21 When un- dertaking this task, the Board has uniformly interpreted ‘‘employee’’ in the ‘‘broad generic sense’’ to ‘‘include members of the working class generally.’’22 Under this expansive interpretation, the Board has found that Sec- tion 2(3) covers not only employees of a particular em- ployer, but also employees of another employer, former employees of a particular employer, applicants for work, temporary and part-time employees, and in- dividuals attending school or working a second job.23 In accord with its broad interpretation of Section 2(3), the Board historically has held that paid union or- ganizers are ‘‘employees’’ entitled to the Act’s protec- tions. Thus, in Dee Knitting Mills, 214 NLRB 1041 (1974), enfd. mem. 538 F.2d 312 (2d Cir. 1975), the Board held that ‘‘an employee does not lose his status because he is also paid to organize.’’ Id. In Oak Ap- parel, supra, the Board adopted the administrative law judge’s conclusion that: The definition in the Act provides that ‘‘the term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states other- wise. . . .’’ While the definition expressly ex- cludes particular kinds of employees, [paid union organizers] would not fall into any of these ex- cluded categories. In accord with the broad appli- cation given to this definition, the Board and the courts find generally that individuals who are hired by, work under the control of, and receive compensation from, an employer, are employees of that employer and entitled to the protection of the Act, including cases where they were em- ployed on a part-time or temporary basis; were at- tending school; were working on a second job; or in other circumstances which indicated they in- tended to remain on a particular job for a limited time. [Footnote omitted.] The Board in Oak Apparel rejected the argument that the discharged union organizers were not ‘‘em- ployees’’ because they did not intend to remain in the respondent’s employ beyond the period required for organization.24 The Board found it immaterial for pur- poses of Section 8(a)(3) whether the discharged orga- nizers sought permanent employment with the respond- ent. Permanency of employment, the Board held, was relevant for election purposes, but was unrelated to the issue of ‘‘employee’’ status. Id. at 701, citing Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 192; Dee Knitting Mills, supra. To hold otherwise, concluded the Board, would result in employers discriminating ‘‘with impunity against temporary or casual employees who are not includable in any bargaining unit.’’ Id. Since Oak Apparel, the Board consistently has held that paid union organizers are statutory employees entitled to the Act’s protection.25 c. The courts of appeals The Second, Third, and District of Columbia Circuit Courts of Appeals agree with the Board that a paid union organizer can nonetheless be an ‘‘employee’’ under the Act. See NLRB v. Henlopen Mfg., 599 F.2d 26, 30 (2d Cir. 1979) (dictum);26 Escada (USA), Inc. v. NLRB, 140 LRRM 2872 (3d Cir. 1992), enfg. mem. 304 NLRB 845 (1991); Willmar Electric Service v. NLRB, 968 F.2d 1327 (D.C. Cir. 1992). Two courts of appeals disagree with the Board. See NLRB v. Elias Bros. Big Boy, 327 F.2d 421, 427 (6th Cir. 1964); H. B. Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir. 1989). 5. Reexamination of our interpretation of Section 2(3) On reexamination of our analysis of the scope of Section 2(3) in Oak Apparel and its progeny, we con- clude that the definition of ‘‘employee’’ encompasses paid union organizers. As more fully explained above, we rely on: (1) the language of Section 2(3) which, given its ordinary meaning and Congress’ determination not to place paid union organizers among its other exclusions, must be read inclusively to encompass paid organizers; (2) the Supreme Court’s consistently broad interpretation of 1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 27 The court cited Nationwide Mutual Insurance Co. v. Darden, supra, 112 S.Ct. at 1344, in support of its application of common law agency principles. Id. at 1329. 28 In our view, the Respondent’s restrictive definition of ‘‘em- ployee’’ to exclude those working for two employers at the same time draws little support from its citation to Chemical Workers v. Pittsburgh Plate Glass, supra. There the Supreme Court held that the statutory language must be given its ‘‘ordinary meaning;’’ nothing in that decision points to a conclusion that dual-employed individ- uals fall outside the ordinary meaning of ‘‘employee.’’ On the con- trary, the Supreme Court expansively interpreted ‘‘employee’’ in Pittsburgh Plate Glass to include anyone working for another for hire. 29 NLRB v. Hearst Publications, supra at 126 (1944); Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 193 (‘‘the central purpose of the Act [is] directed . . . toward the achievement and mainte- nance of workers’ self-organization’’); Republic Aviation v. NLRB, 324 U.S. 793, 797 (1945). 30 Paid organizers are not employees because they fulfill the im- portant function of providing coworkers with information on their rights to self-organization. Having concluded that paid organizers are employees, however, their employment furthers this fundamental policy of the Act. 31 Note, H. B. Zachry Co. v. NLRB: Paid Full-Time Union Orga- nizer Not an ‘‘Employee,’’ 50 La. L. Rev. 1211, 1217 (1990). The Board is free to exclude statutory employees from bargaining units who are otherwise protected by the Act. NLRB v. Action Automotive, 469 U.S. 490, 498 (1985). See generally NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170, 190 (1981). As stated in Oak Apparel, supra, 218 NLRB at 701: The distinction between an employee’s status with respect to the appropriate unit and his or her status as an ‘‘employee’’ within the meaning of Section 2(3) has been recognized since the in- fancy of the administration of the Act. 32 Paid union organizers do not, however, forfeit their status as ‘‘employees’’ because they do not intend to retain their employment beyond the duration of an organizing campaign. Although the perma- nency of employment is relevant to the issue of voter eligibility, it is irrelevant to ‘‘employee’’ status. Oak Apparel, 218 NLRB at 701. It is well settled that temporary employees are within the ambit of Sec. 2(3) and are entitled to the Act’s protections. See, e.g., Pennsyl- vania Electric Co., 289 NLRB 1200 (1988); EDP Medical Computer Section 2(3) and its application of common law agency principles to find that an individual cannot be excluded from the definition of ‘‘employee’’ on the basis that he is being paid by two employers; (3) the reasoning found in our own precedents, most recently approved by the District of Columbia Circuit in Willmar Electric Service, supra, that, among other things, rejects the po- sition that because the employment of paid union orga- nizers is of limited duration they cannot be ‘‘employ- ees.’’ The Respondent and its amici rely on the Fourth Circuit’s reasoning in H. B. Zachry v. NLRB, supra. The court held that it would distort the ‘‘ordinary meaning’’ of ‘‘employee’’ to include within the 2(3) definition someone who was employed and directed in his organizing efforts by the union and who would continue to receive wages and benefits from the union while he was also employed by the employer being or- ganized (citing Chemical Workers v. Pittsburgh Plate Glass, supra, 404 U.S. at 167–168). H. B. Zachry v. NLRB, supra, 886 F.2d at 73. The District of Columbia Circuit in Willmar Electric Service v. NLRB, supra, recently addressed this point. The court applied common law agency principles to in- terpret Section 2(3) to include concurrently employed paid union organizers.27 Observing that a paid organiz- er’s employment would give him a better perch from which to propagandize, the Willmar court nonetheless found that this was inadequate to distinguish the paid organizer from an unpaid union zealot, who was plain- ly an ‘‘employee.’’ We agree and conclude that union organizers are ‘‘employees.’’28 C. Policy Considerations We next consider whether protecting paid union or- ganizers as ‘‘employees’’ furthers the policies of the National Labor Relations Act. The right to organize is at the core of the purpose for which the statute was enacted.29 No coherent pol- icy considerations to the contrary have been advanced that do not, on analysis, resolve themselves into argu- ments that employers be permitted to discriminate based on an individual’s presumed or avowed intention to join or assist a labor organization.30 We find no conflict between protecting paid union organizers as employees and legitimate managerial rights: Protection of the workers’ right to self-organiza- tion does not curtail the appropriate sphere of managerial freedom; it furthers the wholesome conduct of the business enterprise. Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 182. While working for the employer, the paid organizer is subject to its direction and control, and is respon- sible for performing assigned work. The organizer’s activities, like those of any employee, may be limited pursuant to lawful no-solicitation rules. Republic Avia- tion Corp. v. NLRB, supra, 324 U.S. at 802–803 fn. 10. Outside work time, however, the organizer—like other workers—is free to solicit for the union. Id. The fact that a paid organizer may approach his nonwork time organizing activities with greater vigor than an unpaid union adherent is not an acceptable basis for denying the organizer statutory protections. The Respondent and its amici also contend that find- ing that an organizer is an ‘‘employee’’ within the ambit of Section 2(3) would impinge on the employees self-determination rights because the union organizer would be paid by the union to vote for it in an elec- tion. The organizer’s status as a statutory employee does not, however, ensure his right to vote.31 In determining whether statutory ‘‘employees’’ are eligible to vote, the Board applies a traditional ‘‘community of inter- est’’ test. Multimatic Products, supra, 288 NLRB at 1316. Under this test,32 paid union organizers fre- 1257 TOWN & COUNTRY ELECTRIC System, 284 NLRB 1232 (1987). To hold otherwise, and single out paid union organizers for exclusion from 2(3) coverage as ‘‘tem- poraries’’ flies in the face of Sec. 7 protections. Of course, employ- ers may lawfully refuse to hire individuals seeking temporary em- ployment, where the refusal is based on neutral hiring policies, uni- formly applied. Willmar Electric Service, supra, 303 NLRB 245, 246 fn. 2. 33 Oak Apparel, supra, 218 NLRB at 701; Dee Knitting Mills, supra, 214 NLRB at 1041; 299 Lincoln Street, Inc., 292 NLRB 172, 180 (1988). 34 Amici argue that paid union organizers are not ‘‘employees’’ because their request for employment is a guise to gain access to the employer’s private property to further the union’s objectives. Al- though gaining such access likely will facilitate the paid organizer’s union activities, as long as the organizer is able, available, and fully intends to work for the employer if hired, he will not be disqualified from ‘‘employee’’ status. Further, a paid union organizer employee arguably poses no greater threat to an employer’s property rights than a prounion employee who voluntarily engages in organizational activity. Note H. B. Zachry Co. v. NLRB: Paid Full-Time Union Or- ganizer Not an ‘‘Employee,’’ 50 La. L. Rev. 1211, 1215–1216 (1990). 35 Although employers lawfully may insist that employees ade- quately perform assigned work, they cannot insist that employees forego organizing activities, or treat those activities as disloyalty. Texaco, Inc. v. NLRB, 462 F.2d 812, 814 (3d Cir. 1972), cert. denied 409 U.S. 1008 (1972); Misericordia Hospital Medical Center v. NLRB, 623 F.2d 808, 813 (2d Cir. 1980). Employees have the fun- damental right to urge their coworkers to support the union, on com- pany property, outside working hours. Republic Aviation v. NLRB, supra. 36 We find no merit in the Respondent’s contention that because an employer’s payment of wages to the organizer partially offsets the union’s obligation to pay him, this payment may violate Sec. 8(a)(2)’s proscription against employers contributing financial sup- port to unions. Organizer employees are paid by the employer for work performed for the employer, not for the union. We also note that Sec. 302 of the Labor Management Relations Act specifically contemplates that paid union personnel can be ‘‘employees’’ of other employers. Thus, although Sec. 302 generally prohibits employers from paying union employees, it expressly exempts payments by em- ployers ‘‘to any . . . employee of a labor organization, who is also Continued quently are excluded from voting, either as ‘‘tem- porary’’ employees, or because their interests suffi- ciently differ from those of their coworkers.33 In short, employee status is not synonymous with voter eligi- bility. Willmar, supra at 1330. Accordingly, any con- cern over unions packing bargaining units with their paid functionaries is, in our experience and judgment, misplaced. Next, the Respondent relies on the Fourth Circuit’s determination that our approach does not sufficiently account for the adversary relationship between em- ployer and union. The circuit relied on the Supreme Court’s decision in NLRB v. Babcock & Wilcox, supra, among other things, as support for this view. Our determination that paid union organizers are ‘‘employees’’ is, however, completely consistent with the philosophy of NLRB v. Babcock & Wilcox Co., supra. Babcock & Wilcox, as recently reaffirmed by the Supreme Court in Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992), balances the property rights of employers against the Section 7 rights of employees to learn about self-organization from nonemployees. This bal- ancing process, however, is inapplicable to 2(3) em- ployees. Neither Babcock & Wilcox nor Lechmere in- terpret Section 2(3), or so much as hint that property rights may be resurrected as a device to bar activity long protected by the statute.34 Instead, they address the lawful restrictions that employers can place on nonemployees. See Willmar at 1330. The Respondent and its amici vigorously contend that paid union organizers will engage in union activi- ties to the detriment of work assigned by the employer or will embark on acts inimical to the employer’s le- gitimate interests. We do not agree. The statute’s premise is at war with the idea that loyalty to a union is incompatible with an employee’s duty to the em- ployer. The fact that paid union organizers intend to organize the employer’s work force if hired establishes neither their unwillingness nor their inability to per- form quality services for the employer. Indeed, because the organizers seek access to the jobsite for organiza- tional purposes, engaging in conduct warranting dis- charge would be antithetical to their objective. No body of evidence has been presented that would sup- port any generalized, or specific, finding that paid union organizers as a class have a significant, or in- deed any, tendency to engage in such conduct. The statute is founded on the belief that an em- ployee may legitimately give allegiance to both a union and an employer. To the extent that may appear to give rise to a conflict, it is a conflict that was re- solved by Congress long since in favor of the right of employees to organize. To hold otherwise at this late date would require ‘‘some type of transcendent loy- alty’’ on the part of an ‘‘employee’’ to the employer that, in theory, even the Fourth Circuit would not re- quire. Zachary, supra, 886 F.2d at 73.35 Our decisions finding that union organizers are not meaningfully distinguishable from other ‘‘employees’’ under the statute should not be read, however, to give paid union organizers carte blanche in the workplace. If the organizer violates valid work rules, or fails to perform adequately, the organizer lawfully may be subjected to the same nondiscriminatory discipline as any other employee. See Wellington Mfg. v. NLRB, 330 F.2d 579 (4th Cir. 1964), cert. denied 379 U.S. 882 (1964); Sears, Roebuck & Co., 170 NLRB 533 (1968). In the absence of objective evidence, however, we will not infer a disabling conflict or presume that, if hired, paid union organizers will engage in activities inimical to the employer’s operations. Thus, we find no policy reason to disregard present decisional law to find that since a union orgainzer serves the union as well as the company he is eliminated from the defini- tion of employee under Section 2(3) of the Act.36 1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD an employee . . . of such employer, as compensation for, or by rea- son of, his service as an employee of such employer. 29 U.S.C. § 186 (c)(1) (1988). The Chamber of Commerce asserted at oral argument that paid or- ganizers are not 2(3) employees because they work for labor organi- zations which are not ‘‘employers’’ under Sec. 2(2). We reject this argument. Although Sec. 2(3) expressly excludes individuals who work for persons who are not statutory ‘‘employers,’’ labor organi- zations are 2(2) ‘‘employers’ of their own employees. Further, it is immaterial for purposes of our analysis whether unions are statutory employers; the organizer derives his ‘‘employee’’ status from his employment, or attempted employment, with the hiring entity. Thus, for example, an agricultural employee (who is excluded under Sec. 2(3)), or a Federal Government employee (who works for an entity outside Sec. 2(2)), would nonetheless be a 2(3) employee if he sought dual employment with a statutory employer. 37 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ Having carefully reviewed the language of Section 2(3), its legislative history, policy, and the wealth of decisional law interpreting this statutory provision, we reaffirm our adherence to Oak Apparel and its prog- eny. We conclude that full-time, paid union organizers are ‘‘employees’’ entitled to the Act’s protections. For these reasons, we conclude that all the appli- cants, including Priem and Shafranski, who sought em- ployment with the Respondent on September 7, 1989, were employees within the meaning of Section 2(3) of the Act. Thus, we adopt the judge’s findings that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to consider for employment the 10 appli- cants named by the judge because of their union affili- ation and by subsequently discharging Hansen because of his organizing efforts. ORDER The National Labor Relations Board orders that: A. Respondent Town & Country Electric, Inc., Ap- pleton, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the rec- ommended Order of the administrative law judge. B. Respondent Ameristaff Personnel Contractors, Ltd., Minneapolis, Minnesota, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating job applicants concern- ing their union membership. (b) 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) Post at its facility in Minneapolis, Minnesota, copies of the attached notice marked ‘‘Appendix.’’37 Copies of the notice, on forms provided by the Re- gional Director for Region 18, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notice to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. MEMBER OVIATT, concurring. For reasons set forth in my concurring opinion in Sunland Construction Co., 309 NLRB 1221 (1992), I join in the majority’s findings in this case. MEMBER RAUDABAUGH, concurring. For the reasons stated in my concurring opinion in Sunland Construction Co., 309 NLRB 1221 (1992), I concur in the finding of a violation here. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT coercively interrogate job applicants concerning their union membership. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. AMERISTAFF PERSONNEL CONTRACTORS, LTD. Florence Brammer, Esq., for the General Counsel. James Pease, Esq. (Melli, Walker, Pease, & Ruhly, S.C.), of Madison, Wisconsin, for the Respondent Town & Country Electric, Inc. Garth R. Seehower, Esq., of Racine, Wisconsin, for the Re- spondent Ameristaff Personnel Contractors, Ltd. Steve Gordon, Esq. (Gordon, Miller, & O’Brien), of Min- neapolis, Minnesota, for the Charging Parties. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This case was tried in Minneapolis, Minnesota, on December 11–14, 1989, on an initial unfair labor practice charge filed on Sep- tember 25, 1989, and a consolidated complaint issued on No- vember 16, 1989, alleging that the Respondents are joint em- ployers on a specific project in International Falls, Min- nesota, and in connection therewith engaged in numerous 1259 TOWN & COUNTRY ELECTRIC 1 The witnesses presented by each side to this controversy, for the most part, were not entirely credible, thus, complicating the factfind- ing process. In that connection, my direct, personal observation of the witnesses was often a factor influencing resolutions of credibil- ity. However, plausibility, or the lack thereof in a line of testimony, was given greater weight and was the controlling factor more often than not. It is for this latter reason that many critical resolutions fol- low no clear pattern and facially appear asymmetrical. Thus, in cer- tain instances, I believed and disbelieved the same witness, though the testimony conflicted with the same opposing witness. These di- verse, seemingly inconsistent resolutions, were framed on the basis of my impressions which varied as the context shifted, rendering one line more logical than the other. 2 See, e.g., Sunland Construction Co., Case 15–CA–10618–1, et al. (9/5/89); J. E. Merit Constructors, JD–13–90, Case 15–CA–10661 (1/26/90). 3 All dates refer to 1989, unless otherwise indicated. 4 The Minnesota requirements for licensing are: (1) 8000 hours of verifiable craft work, and (2) successful completion of a Class ‘‘A’’ journeyman electrician test. 5 This figure includes about 25 unskilled workers, 71 indentured apprentices, and 130 journeyman electricians. independent 8(a)(1) violations, and, further, violated Section 8(a)(3) and (1) of the Act by refusing since September 7 to hire 12 applicants for employment; by since September 13, refusing to hire Charging Party Charles Evans; by on Sep- tember 14, discharging Malcolm Hansen; and by since Sep- tember 20, refusing to hire Roger Kolling. In duly filed an- swers, the Respondents denied that any unfair labor practices were committed. Following close of the hearing, briefs were submitted on behalf of the General Counsel, the Charging Party, and separately, for each of the Respondents. On the entire record, including my opportunity directly to observe the witnesses and their demeanor,1 and after consid- ering the posthearing briefs, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, Town & Country Electric, Inc., a Wis- consin corporation (T & C), from its facilities in Appleton, Wisconsin, is engaged as an electrical contractor in the con- struction industry. In the course of that operation, it annually provides services valued in excess of $50,000 directly to cus- tomers located outside the State of Wisconsin. The Respondent, Ameristaff Personnel Contractors, Ltd. (Ameristaff), a Wisconsin corporation, from its facilities in Green Bay, Wisconsin, is engaged in operation of a tem- porary employment agency. In the course of that operation, Ameristaff annually provides services to T & C valued in ex- cess of $50,000. On the foregoing, I find that the Respondents T & C and Ameristaff are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the record demonstrates, and I find that the International Brotherhood of Electrical Workers, Local 292, AFL–CIO and its sister, Local Union 343, admit employees to membership and, at least in part, exist for the purpose of representing them in the negotiation and adminis- tration of collective-bargaining agreements, and hence are labor organizations within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement This is another case in which recruitment patterns and hir- ing decisions by a ‘‘merit shop’’ contractor have collided with the job recovery strategy of unions in the construction industry.2 Merit shop is a code word for nonunion. Being a merit shop employer, the Respondent T & C, was unaffili- ated with any labor organization. Its electrical operations, however, require access to craftsmen whose skills are com- parable to those traditionally represented by AFL–CIO build- ing trade unions, namely, the International Brotherhood of Electrical Workers. Early in September 1989,3 T & C was awarded electrical renovation work at a paper mill operated by Boise Cascade in International Falls, Minnesota. Work at that location was to be performed in accord with the Minnesota law. Among the statutory restrictions is a requirement that one electrician licensed by the State be employed for every two engaged in electrical work on the job.4 Based in Appleton, Wisconsin, T & C was a nonresident contractor, with limited experience on Minnesota projects. Work was to begin on Monday, September 11. T & C, the largest nonunion electrical contractor in the State of Wiscon- sin, in early September, did not have a single electrician li- censed in Minnesota, either within its files or among its work force of some 260.5 Moreover, as a nonunion operator, T & C does not solicit from, and hence could not fill its need from union hiring halls. To obtain qualified electricians, and ultimately to locate craftsmen licensed in Minnesota, T & C retained Respondent Ameristaff, a temporary employment agency, to stir the labor markets, and ultimately, to stand, at least frontally, as the im- mediate employer of the manpower secured for T & C’s ac- count. The instant complaint arises from union efforts to infiltrate the recruitment process. Attempts of this sort to obtain work with nonunion contractors, and organize them from within, stands as a recent innovation. It is a marked departure from historic measures used by building trade unions in the ongo- ing struggle to preserve jobs and negotiated labor standards. In the past, most, if not all, skilled trade unions had endeav- ored to protect their respective crafts by denying skilled labor to nonunion contractors, a tactic highly effective in a tran- sient industry, where hiring halls provide a convenient source of qualified craftsmen in virtually all geographic areas. This sequestration of union labor was facilitated by constitutional bans on nonunion employment, which are subject to enforce- ment against members through internal disciplinary machin- ery. In recent years, however, employment opportunities with union contractors have declined, causing construction unions to take a second look at the growth of nonunion competition. To that end, a market recovery strategy was fashioned as a means of organizing nonsignatory employers. Hence, in 1988, Locals 292 and 343 authorized their membership to work nonunion, if for organizational purposes. (R. Exhs. 4(c) and (e).) A fund was established to reimburse members for wage, travel, and health benefit differentials, that he suffered on such jobs. 1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Steven Buelow, Ameristaff’s president, testified that he had no role during the Minneapolis recruitment operation other than to dis- tribute and collect applications. Defferding testified to the contrary, suggesting that, at least in the case of Malcolm Hansen, who was ‘‘selected’’ by Defferding and Sager, Buelow was involved in that process ‘‘because he [Hansen] was going to be Mr. Buelow’s em- ployee.’’ As between the two, Buelow overwhelmingly was the more credible. 7 According to Buelow, Ameristaff ‘‘never purported to supervise or direct employees’’ of its clients. An instructional guide provided to employees by Ameristaff states that: ‘‘All client rules and regula- tions apply—you are working under their direction and supervision.’’ G.C. Exh. 14. 8 As shall be seen, Malcolm Hansen was the sole Ameristaff em- ployee on the Boise-Cascade job. T & C established his wage rate. When Hansen received a wage increase, it was at T & C’s election. According to Steven Buelow, Ameristaff’s president, it billed T & C based on a formula which incorporated Hansen’s wage rate and per diem as a multiplier. 9 Buelow testified that on September 13 he was informed by T & C to terminate Hansen. His lack of control in such matters was ex- plained as follows: [T]he client has the ability to terminate that contract at any time . . . . If the guy is not working out or if they didn’t have any more work for them, they have the right to terminate the contract. 10 T & C contests joint-employer status, citing authority which is inapposite. Thus, see Slurry Matic, Inc., 169 NLRB 184, 185 (1968), concerned an allegation that two entities were a ‘‘single employer,’’ a concept subject to a more rigorous test than joint employer. See, e.g., Pacific Mutual Door Co., 278 NLRB 854, 858 fn. 18 (1986). 11 The opposite does not follow. Thus Ameristaff shall not be deemed responsible for independent unlawful conduct on the part of T & C over which it had no authority or control. 12 Local 292’s geographical jurisdiction includes the Greater Min- neapolis area and the five surrounding counties. This strategy was unleashed against T & C under condi- tions of surprise during a Minneapolis recruitment effort waged in conjunction with the Boise-Cascade project. Thus, T & C’s response to the union initiative forms the premise for allegations of discrimination on behalf of disappointed job seekers, all members of Local 292, who responded in person at a recruitment session held at a Minneapolis hotel on September 7, and others who made individual phone con- tacts with T & C. Of the applicants, a single member of Local 292 was hired, and the General Counsel contends that this individual, Malcolm Hansen, was discharged unlawfully on September 14, after unsuccessful attempts on behalf of T & C, to curtail his organizational activity. B. Concluding Findings 1. The joint-employer issue Operationally, T & C’s arrangement with Ameristaff af- forded access to manpower, under a shield from traditional employment obligations. Unlike T & C’s own employees, T & C assumed no liability for fringe benefits as to those car- ried on the payroll of Ameristaff and other similarly situated agencies with which it deals. Insofar as might be discerned from this record, Ameristaff’s involvement in connection with the Boise-Cascade operation was restricted to advertis- ing, communicating with job prospects, compiling completed applications, arranging the accommodations for interviews, and completing the paperwork necessary to maintain payroll for those hired. Ameristaff neither interviewed, nor influ- enced hiring decisions,6 and had no presence, and hence no overseeing role, at the Boise-Cascade jobsite. Most, if not all, conventional employment prerogatives were retained by T & C. Interviewing, hiring, supervising,7 the setting of wage rates and granting of increases,8 and, for all intents and pur- poses, discharges,9 were matters reposed to exclusive discre- tion of T & C operatives. On these facts, it is indisputable that T & C exercised ple- nary authority and control over employees retained by Ameristaff for its account. In these circumstances, even ab- sent a joint-employer relationship,10 Ameristaff, having a mere nominal role, possessed the legal vestiges of an agent whose conduct, in connection with the manning of the Boise- Cascade job, was binding on T & C.11 See, e.g., Storall Mfg. Co., 275 NLRB 220 fn. 3 (1985). 2. The embassy suites allegations a. The issues This phase of the case is premised on a mass refusal to consider certain Local 292 members12 in the course of an interview session conducted in Minneapolis on September 7. All but two that attended, completed applications at that time. Only one covered by this immediate allegation was interviewed. In addition to the alleged discrimination, certain independent 8(a)(1) allegations are imputed to Ron Sager, T & C’s manager of human resources, and Steven Buelow, Ameristaff’s president and owner. The coercive conduct in- cludes interrogation of applicants concerning their interest in union work; statements that applicants would be employed only at union projects; threats that those without ‘‘appoint- ments’’ would be placed in a file for union jobs only and would not be considered for employment on nonunion jobs; and statements that union members could not be hired. The Respondents deny that their representatives either un- lawfully questioned, threatened, expressed a preference, or attempted to impede organization. Furthermore, it is argued that the failure to interview those present, was based on con- siderations totally unrelated to union activity. Thus, T & C urges that I credit evidence that the time available to com- plete the process impelled T & C to confine interviews to those with prescheduled appointments. b. Factual overview Ron Sager was primarily responsible for manning the Boise-Cascade job. He was informed in late August or early September that T & C had secured an electrical contract in International Falls, Minnesota. He testified that he was told that the job was to be treated as a short-term operation, since T & C would have to survive a 3-month trial period to be retained. Initially, Sager faced two problems. First, he had little lead time, as work was scheduled to begin on September 11, and, second, he had no clear source of required manpower. More- over, because the job was described as short term, he alleg- edly did not wish to hire from the outside on a ‘‘permanent’’ basis. Therefore, on September 1, he contacted Steven Buelow, Ameristaff’s owner and president, requesting that Buelow investigate the availability of electricians for a ‘‘short term’’ job in Northern Minnesota, adding that he needed an answer by 5 p.m. 1261 TOWN & COUNTRY ELECTRIC 13 T & C argues that Priem and Shafranski, because of their status as paid, full-time union officials, are not entitled to redress under the Act. As matters now stand, that issue is currently before the Board on remand and might well be subject to reconsideration in H. B. Zachry Co., [289 NLRB 838 (1988)], enf. denied 886 F.2d 70 (4th Cir. 1989). Under current Board policy, however, this defense is nonmeritorious. 14 G.C. Exh. 13. Chartrand arrived late, after applications were so- licited. He testified that he was denied an opportunity to submit an application because those officiating were in a hurry to leave. He states that someone took his name, address, and telephone number, advising that he would be in touch. Chartrand, who claims to have been desperate for work, received no further contact. Another indi- vidual who arrived late, failing to file an application was Steven Shannon. His name was deleted from the complaint at the outset of the hearing. In her posthearing brief, counsel for the General Coun- sel represented that Shannon arrived after the interview team had left and hence had no personal contact with them. 15 I reject Priem’s uncorroborated testimony that after collecting the applications, Buelow stated that they needed eight people imme- diately for this project. From all indications on this record, that fig- ure went well beyond T & C’s needs, and Priem’s testimony in this regard impressed as a pat, unbelievable attempt to broaden the former’s liability under this complaint. Having been retained by T & C to recruit qualified elec- tricians, Ameristaff followed up in area newspapers. On Sep- tember 3, 1989, a blind advertisement appeared in a major Minneapolis newspaper announcing employment opportuni- ties for ‘‘licensed journeymen electricians.’’ Despite Sager’s testimony that the job was short term, the ad described the project as having a ‘‘two-year’’ duration. (G.C. Exh. 2.) The telephone number of Ameristaff was included. Members and officials of Locals 292 and 343 learned of the advertisements. Unemployed members were encouraged to respond. On September 5, according to Buelow, Sager made it clear that among other things, any prospects had to be ‘‘able to work a merit shop,’’ which quite correctly was understood by Buelow as reference to a nonunion shop. Buelow relates that, at some time prior to September 7, this was clarified by T & C to mean those willing to relocate and ‘‘work a merit shop.’’ Ameristaff customarily prescreens applicants to determine if they meet the client’s criteria. In anticipation of responses to the ads, Buelow set up a screening process for Ameristaff’s receptionist, Lorrie. She was instructed, inter alia, to inquire whether job seekers preferred to work union or nonunion, and that, should they respond that they were in a union, or had only worked union, Lorrie was to ask if they would work nonunion. Sager relates that on Tuesday, September 5, after the ad had run, Sager first learned of the journeyman/helper ratio under Minnesota law. For this reason, Sager instructed Ameristaff that only licensed electricians interested in work- ing for a merit shop employer would be hired for the Boise- Cascade job. Ameristaff had been informed that T & C need- ed more than one licensed electrician. On September 5, Ameristaff was first informed, on a confidential basis of the location of the job. As indicated, work was to commence at International Falls on Monday, September 11. Sager and the designated project manager, Dennis Defferding, were aware, at least since Sep- tember 5, that the job could not begin until hire of at least one journeyman or master electrician who was licensed in Minnesota. Thus, Sager’s testimony that as of September 7, he was ‘‘pretty anxious’’ to hire a licensed electrician comes as no surprise. To meet this requirement, Buelow, had scheduled appoint- ments for the Embassy Suites in Minneapolis on Thursday, September 7. That day, T & C chartered an aircraft to trans- port Buelow, and T & C’s Sager and Defferding from Apple- ton, Wisconsin, to Minneapolis. About 14 unemployed mem- bers of Local 292, including 2 full-time salaried officials of that organization, appeared at the Embassy Suites in quest of work. Applications, under Ameristaff logos, were distributed and completed. Interviews were conducted by Sager and Defferding. Three were interviewed, two were offered jobs, but only one, Malcolm Hansen, was hired. However, the hir- ing process was cut off before any others would be inter- viewed. None of this latter group was subsequently contacted by T & C. c. The evidence The complaint identifies 12 applicants, all members of Local 292, as having been denied employment wrongfully in consequence of the September 7 interview session. Those named are as follows: Ken Axt Red Larson Steve Claypatch Roger Chartrand Steve Leyendecker David Hagen Robert Hallman Bob Printy Craig Jones Greg Shafranski Harley Barton Michael Priem Of this group Priem and Shafranski were paid business rep- resentatives of Local 292.13 The rest, including Claypatch, a nonpaid member of that Local’s executive board, were appar- ently unemployed. All except Chartrand filed applications.14 Of this group only Jones was interviewed. Parenthetically, it is noted that a longstanding member of Local 292, Malcolm Hansen, was interviewed and actually hired. The third and only other per- son extended an interview was Gary Weseman, a nonaffiliate of Local 292. More specifically, a composite of credible testimony of Sager and Priem reveals that, due to a flight delay, the inter- view team did not arrive until 11 a.m. Two rooms had been reserved. One was arranged as a waiting area, with refresh- ments and tables for completing applications; the other was used for actual interviews. After the entire group repaired to this area, those assembled were addressed initially by Sager. He first explained the benefits provided by T & C, including its health and 401(k) plan. Buelow of Ameristaff then distrib- uted applications, which bore the Ameristaff logo, for com- pletion by those present. (G.C. Exh. 3.) Later, Buelow gath- ered the completed applications and carried them to the room in which interviews were conducted.15 Craig Jones was the first interviewed and Gary Weseman, the only nonmember of Local 292, was second. It is impor- tant to bear in mind that Weseman was the only applicant present that Buelow had previously scheduled for an inter- view. (R. Exh. 10.) There also is no dispute that Buelow, after collecting the completed applications, returned to the waiting room. A dis- 1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 Buelow claims that Ameristaff enjoys a clientele which includes union as well as nonunion contractors. The union contractors are not identified, nor are the particular unions with which they deal. Cus- tomarily, however, construction contractors that have bargaining re- lationships with affiliated craft unions, will obtain skilled personnel from the latter’s hiring hall, either on a compulsary or voluntary basis. To say the least, Buelow’s testimony aroused curiosity as to why this class of ‘‘unionized contractors’’ would bother with a com- mercial, fee-based, manpower agency. 17 During the ensuing week, T & C embarked on this independent search. The campaign began with the placement of ads in Minnesota newspapers and those published in surrounding States as well as Colorado, Louisiana, and Texas. Although Sager testified that the Minneapolis papers were included, documentary evidence proved this to be untrue. G.C. Exh. 17. Sager also testified that he made numerous phone calls in the effort to locate electricians licensed in Minnesota. 18 I have no quarrel with Buelow’s testimony that it was his inten- tion—concerning applications garnered at the Embassy Suites (G.C. Exhs. 13(a)–(k))—to verify employment references, but he did not do so because Ameristaff was off the job the following week. 19 This is not meant to imply that in the event of a finding of ille- gality, all named discriminatees would be entitled to monetary re- dress. Thus, in that event, the Respondents could cut backpay liabil- ity by demonstrating in an appropriate compliance proceeding that fewer jobs were available than discriminatees. 20 It is not entirely clear, and it need not now be decided, just how many licensed electricians would be required at startup. Yet, I am convinced that the Embassy Suites venture fell far below expecta- pute existed as to what was said, but under all versions, it is clear that the applicants were informed that the job in question was nonunion.16 After Buelow was informed that the men were interested in any work available, he left again. He again returned after about 15 minutes to read off a list of seven names. None were present. Buelow identified this group as those with prearranged appointments, then stated that: ‘‘we don’t know if we can interview the rest of you be- cause you didn’t have appointments.’’ Buelow was advised by Priem that at least eight licensed journeymen were present who could take the place of those with appointments. After this, Buelow again left the waiting area, this time re- turning with Sager. The latter informed that he had to catch a plane and that: ‘‘We are only going to interview people that had appointments and . . . we are asking everybody to leave if you don’t have an appointment.’’ Malcolm Hansen protested, stating that he called the number in the newspaper ad and was told to ‘‘show up.’’ He announced that he would not leave until interviewed. Sager then threatened to call the local authorities and have them removed. However, he also informed Hansen that he would check and if Hansen had an appointment he would ‘‘honor the commitment.’’ When Sager was informed by Buelow that Hansen had called Ameristaff that morning, he elected not to labor the point, but to interview Hansen, while announcing to the others: ‘‘I will not interview anybody else, because we’ve got to get going.’’ Hansen was hired. Thereafter, the session was termi- nated. Other than Hansen and Jones, no one that completed an application that day was ever interviewed or, for that mat- ter contacted, by either T & C or Ameristaff. d. Analysis (1) The discriminatory refusal to employ The 8(a)(3) allegations concerning this group might be viewed from two perspectives; namely, the failure to inter- view and the post-September 7 failure to seek out the union allied, job seekers during T & C’s ongoing quest for licensed electricians. Before considering the General Counsel’s case, the issues might be simplified by acknowledging T & C’s contention that on or about Tuesday, September 12, Sager received in- formation which made it economically infeasible to consider the Embassy Suites applicants. It was confirmed at that time that, under Minnesota law, Ameristaff could not be used as the employer of licensed personnel on the Boise-Cascade job. Yet, T & C would incur liability for ‘‘placement fees’’ if it used the Embassy Suites applications, all of which were so- licited by Ameristaff. The minimum guarantee to Ameristaff would be $1320 per applicant. T & C argues that to avoid this expense, that avenue was abandoned in favor of in-house recruitment.17 The evidence supporting this claim is beyond suspicion. It basically conforms with my understanding of the business practices generally followed by suppliers of temporary man- power. To this extent, and insofar as the allegations cover the timeframe after September 7, the Respondent has met its bur- den of showing that these applications would not have been activated thereafter even if those seeking work were non- union. See Wright Line, 251 NLRB 1083 (1980). I am per- suaded that based on the ‘‘placement fees,’’ the Embassy Suites applicants, as unknown quantities, would not have been considered for employment after T & C learned of Ameristaff’s nullification. Other than speculation, the Gen- eral Counsel has offered no cause to believe otherwise.18 However, this view does not offer a complete defense. For, it fails to embrace earlier events, including any peremp- tory refusal to interview and consider for employment the disappointed job seekers at the Embassy Suites. If unlawfully motivated, T & C’s failure to interview at that time on pend- ing applications created an ambiguity, to be resolved against the wrongdoer, warranting an assumption that the alleged discriminatees, if given a chance, would have been hired, would have demonstrated proficiency, and would have been retained directly by T & C after Ameristaff’s disqualifica- tion.19 Thus, the events at the Embassy Suites remain viable and are central to the 8(a)(3) allegations in this case. In this regard, there can be no question that, as of Septem- ber 7, T & C was hard pressed to hire licensed electricians. At that time, operations were expected to commence at Boise Cascade on Tuesday, September 12. In the interim, between September 1 and 5, it does not appear that it had secured a single journeyman electrician either from its rolls or through Ameristaff’s efforts. Indeed, on September 5, the opportuni- ties for locating qualified personnel was squeezed further. On that date, T & C learned that Minnesota regulations pre- cluded any operations absent an electrician licensed in that State. As of September 7, it had not secured a single elec- trician meeting this requirement. Moreover, T & C’s des- perate posture at the Embassy Suites was compounded by the fact that, if this venture failed, only 4 days would remain, a timeframe made even more critical by intervention of a weekend.20 1263 TOWN & COUNTRY ELECTRIC tions. Thus, a classified ad reappeared in the Minneapolis newspaper on Monday, September 11, this time describing the project as of 4- year duration. G.C. Exh. 4. Sager testified that the Respondent planned to hire 4 to 6 journeyman electricians ‘‘the first couple of weeks’’ on the job, and then to increase to 8 to 10 for the remainder of the job. Defferding’s testimony suggested that T & C was less ambitious, at least, in terms of its hopes for the early weeks. Thus, he testified that T & C hoped to pick up one or two through Ameristaff’s September 7 interviews. He added that if only one were hired, the actual work force could be expanded beyond the 2 to 1 ratio. This refers to state licensing procedures which permit unli- censed personnel to obtain temporary permits, pending completion of the certification process, allowing them to work without counting against the ratio. Defferding testified that it was T & C’s intent to use two of its own employees in that fashion, thus, allowing a total work force of five, including the licensed journeyman. As matters turned out, only one T & C employee, Michael Grow, obtained a temporary license. For this reason, Project Superintendent Rodney Smithback, though on the site at all times, was essentially relegated to paperwork and could not legitimately work with the tools. On cross-examination, Defferding admitted to telling a Board investiga- tor that in early September, T & C anticipated a need for 15 to 30 electricians on the job. I had my doubts about Defferding’s account, but, in any event, issues of this nature are best left to an appropriate compliance proceeding. 21 The existence of an untoward motivation is hardly impaired by suspicion that emerges from the Respondent’s recruitment strategy following termination of Malcolm Hansen on September 14. There- after, the Respondent placed ads in numerous newspapers within the State of Minnesota, but, inexplicably, declined to use newspapers based in the Minneapolis area. G.C. Exh. 17. Imagination is not taxed by one’s attempt to reckon the reason for this omission. It is in this light that the curtailment of interviews on Sep- tember 7 must be evaluated. The underlying facts, without question, demonstrate that the Respondent elected not to con- sider applicants who were present, and who offered them- selves as available for work and qualified as licensed elec- tricians. Sager’s own testimony confirms that the decision not to conduct further interviews was announced only after the T & C operatives were informed that this group was believed to be allied with an affiliated labor organization. Thus, Sager relates that, after the interviews of Jones and Weseman, Buelow reported that none of the others had appointments. Sager expressed curiosity as to how those without interviews knew that the T & C representatives were present. Sager then allegedly told Buelow that they were late and had to get back to Appleton, stating that, ‘‘as bad as we needed people,’’ he didn’t want to waste time with them if Buelow ‘‘didn’t screen them like the others.’’ Buelow was told to doublecheck to assure that those waiting had no appoint- ments. He returned, stating that those waiting had become a bit unruly. Sager admits that he at this point learned of their union affiliation, as Buelow showed him several applications, commenting, ‘‘I think they’re union.’’ Sager suspected that T & C was being harassed or being set up. He admits that it was at that point that he and Defferding decided to an- nounce, for the first time, that interviews would be extended only to those with appointments. Sager concedes that the an- nouncement was made before anyone had accepted employ- ment and without knowledge that anyone present had an ap- pointment. Thus, at that juncture, he was resigned to writeoff the Minneapolis trip as a total failure. T & C remained un- prepared to meet its scheduled Boise-Cascade starting date, and merely had 2 working days to accomplish what it had not in the past 7. Considering the circumstances confronting T & C at the time, and the fact the Embassy Suites venture was aborted immediately after learning of the union affiliation of those present, an inference is warranted that—notwithstanding the subsequent hire of Hansen—this step was taken against ap- plicants, who together offered a broad source of ostensibly qualified electricians, at least in part on antiunion consider- ations.21 Thus, the onus was on the Respondents to dem- onstrate that these applicants would not have been inter- viewed and considered even if not union members. See Wright Line, 251 NLRB 1083, 1089 (1980). The defense begins with T & C’s declaration that it was not antiunion, an argument which springs from the estimate that some 40 percent of its employees are or were members of the IBEW. This demographic is more a function of the impact of union training and apprenticeship programs on em- ployment markets than any desire on the part of this ‘‘merit shop employer’’ to let down its guard. Indeed, T & C’s own position suggests that those hired were known to be union renegades, and hence posed no organizational threat. The 40- percent statistic was furnished by Sager himself. When called on to explain how he knew of his employees’ union status, Sager stated: [We]’ve gotten . . . statements from the people we’ve hired, that they have gotten letters in mail that they are going to be fined or that now that they are no longer a part of the union, they are working for nonunion, they have to appear before a committee of some sort and then they bring that to our attention. Along this same line, in its posthearing brief, T & C states that it ‘‘knew that the Union’s constitution and by-laws pro- hibited union members from working for nonunion employ- ers,’’ and that T & C therefore ‘‘believed the union opposed the hiring of any of its members by a nonunion employer.’’ From this frame of mind, T & C would assume that com- petent electricians could be added to its payroll with little risk that ardent union members would be among those hired. Any notion that T & C open its doors with equanimity to qualified craftsmen who overtly manifested an intention to organize would be inconsistent with the economic goals of this avowed ‘‘merit shop employer.’’ The business posture of T & C is no different than those familiar to other nonunion contractors, including that involved in in J. E. Merit Con- structors, JD–13–90, pp. 7–8. The observations there apply with equal force to T & C: [T]he Respondent considers itself as among the class of contractors which refer to themselves as ‘‘merit em- ployers.’’ This is nothing more than a ‘‘buzz’’ ref- erence to nonunion shop. It is a calling antithetical to any form of contractual relationship with traditional building trade unions. Indeed, one might fairly assume that this class of employers, at least in the area of costs, enjoys a labor-oriented, competitive edge in an industry where bidding wars generate revenues, and effective performance turns upon the ability to attract competent workers on a casual, short term basis. The benefit of 1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 In support of this deduction, Sager observes that there was no prior public announcement that T & C and Ameristaff personnel would be present in Minneapolis to conduct interviews. 23 In its posthearing brief, T & C characterizes the applicants as ‘‘intruders.’’ However, the interview team did nothing to suggest who was, and who was not welcome until union affiliation emerged. In light of the above credibility resolutions, it is concluded that Buelow, Sager, and Defferding knew, or should have known from the outset that their were more jobseekers present than Buelow had scheduled for interview. In any event, Sager admitted that were it not for the press of time, all present would have been interviewed irrespective of any lack of appointment or prescreening. 24 In this instance, Priem and Hansen are credited over Sager and Defferding. None were entirely truthful, and as shall be seen, credi- bility resolutions, though based on my firm impressions are not en- tirely consistent in their cases. All struck as a bit too flexible with truth, willing to bend and improvise to strengthen or cover weak- nesses in their respective cause. However, in this particular instance, the late arrival of the interview team enhances the likelihood of the mutually consistent accounts of Priem and Hansen, it being entirely probable that by 11 a.m. most of the Local 292 members would have appeared. 25 The interview team’s departure for Minneapolis that morning was delayed about 2 hours due to fog. Sager testified that a ‘‘criti- cal’’ manpower meeting, affecting 37 different jobs, had been sched- uled for Appleton at 3:30 p.m. that very day. This, according to Sager, compacted the time available to conduct the Embassy Suites interviews. There are no written records kept of such meetings, and independent evidence that it was scheduled or held was totally lack- ing. Although Sager testified that the meeting was fixed, timewise, taking place every Thursday at about 3:30 p.m., no explanation was offered as to why it was necessary to schedule the Minneapolis trip that same day. Defferding was not examined as to the meeting and hence did not testify that he attended such a meeting. Sager’s uncorroborated testimony in this respect does not square with his failure to diligently explore Buelow’s agenda to assure effective use of the time available. He was not believed. 26 G.C. Exh. 13(c). operating nonunion in this industry is magnified when on considers that most industrial maintenance work is more labor intense than customarily encountered in other forms of construction activity, with the ratio of labor to material costs proportionately higher. There can be little debate that any formal organiza- tion drive by an affiliated labor union challenges this fundamental economic advantage. It follows that indis- criminate hiring from that source clearly would enhance that peril. In this light, hiring decisions confronting the Respondent . . . may be equated with a choice between suicide and survival. Beyond the foregoing, the Respondent’s explanation for the termination of interviews is founded on Sager’s parole testimony as to intentions, not communicated to those present until after their union affiliation was discovered. Thus, it is the sense of his testimony that he at no time wished to inter- view anyone without a scheduled appointment and who had not been screened by Ameristaff. Yet, as indicated, prior to his learning of union involvement, no attempt was made by either Ameristaff or T & C to single out or identify those with appointments, nor was there an earlier suggestion that appointment was requisite to interview. In this regard, however, Sager testified that, on arrival at the Embassy Suites, he simply assumed that all present had appointments.22 He claims that he first learned that this was not the case when Buelow reported that this was not so. Thus, if Sager is to be believed, it was his intent from the outset, albeit unannounced, to interview only those with ap- pointments, and that Buelow’s report concerning the union status of those waiting did not inspire any such judgment. The General Counsel attacks Sager’s credibility on a num- ber of grounds. First, it is argued that, on arrival, he knew, or should have known, that more job seekers were present than the seven with appointments. This raises a preliminary issue as to just how many applicants were present when the interview team arrived an hour and 30 minutes late. Sager testified that only four to six prospects were present, prompting him to remark that it appeared that only those with appointments showed up. This is somewhat consistent with Defferding’s observation that when the management team arrived at 11 a.m., ‘‘there were a couple of gentlemen in the lobby . . . waiting for us.’’ However, according to Michael Priem, he and Greg Shafranski, both business rep- resentatives of Local 292, arrived at the Embassy Suites at about 8:30 a.m. on September 7, only to learn that the rep- resentatives of T & C and Ameristaff had been delayed. He testified, with corroboration from Malcolm Hansen, that at about 11 a.m., Sager, Defferding, and Buelow arrived. Priem and Hansen offered names, but do not identify precisely which, or how many, applicants were present at that time, and how many arrived later. Both, however, testified that the interview team expressed pleasure with the size of the turn- out. I believed Priem and Hansen, because their account was more plausible,23 and also stood above other flaws in Sager’s story.24 Thus, Sager elected to begin the interviews with Craig Jones, who had no appointment, yet was called without in- quiry as to whether any such condition had been met. Appar- ently, to diminish this contradiction, Sager would have me believe that, though pressed for time,25 he never saw Buelow’s list (R. Exh. 10), or asked Buelow who, was scheduled, and, thus, was unmindful that Jones had no ap- pointment. Buelow had actually scheduled seven interviews. Sager testified that on the flight to Minneapolis, Buelow ad- vised him that these were scheduled at 20-minute or one-half hour intervals. Obviously, if all showed up, simple math in- dicates that the interview team would he hard pressed to make it to the Minneapolis airport by 3:30 p.m., let alone re- turn to Appleton for the meeting allegedly scheduled for that time. In this light, it is incomprehensible that Sager made no effort on arrival at the Embassy Suites, and thereafter until union activity became an issue, to monitor the number who were present and who would later arrive that were entitled to interview, and hence might delay the return trip. In addition, Sager sought to bolster the import of prior ap- pointments by explaining that those lacking them would not have been prescreened by Ameristaff, and he did not wish to interview those who had not gone through this process. He denied knowledge, however, of what was entailed in the prescreening.26 In fact, the prescreening format was a sim- plistic, handwritten system, designed for implementation by an Ameristaff clerical employee who would take calls from those responding to newspaper ads. In contrast, the applica- 1265 TOWN & COUNTRY ELECTRIC 27 It is difficult to accept that Sager would insist on prescreening without knowledge of the areas probed in that exercise. I reject Sager’s testimony that T & C neither solicited, nor was aware that Ameristaff was screening prospects along union lines. I would also note that T & C has attempted, albeit inartfully, to place a ‘‘spin’’ on the evidence fingering Sager as the progenitor of this inquiry. It is clear that Buelow denied that he was instructed by T & C to in- quire into an applicant’s union preferences. At the same time, how- ever, Sager admittedly told Buelow that the electricians had to be willing to work for a merit shop employer. Yet, the Respondent in its posthearing brief states: Buelow . . . prepared a prescreening form which, inter alia, asked applicants if they preferred union or nonunion work. This inquiry was strictly Buelow’s idea. [Emphasis added.] This is an ‘‘eye roller’’ of the first order. Could Buelow, who equat- ed merit shop with nonunion, develop the information specifically requested by Sager without asking? Fairly stated, the ‘‘idea’’ was planted, if not directed, by Sager. 28 Jones admitted that, during his interview, he characterized T & C’s starting rate as an ‘‘insult.’’ However, he denied stating specifi- cally that he would not work for that rate. Although not given a job offer, Jones admittedly told the T & C representatives that he would have to discuss out-of-town work with his wife. He was asked whether he would consider an offer to work locally. He said he would, and then was told that his application would be kept on file. He neither contacted, nor received contact from T & C or Ameristaff, thereafter. On the face of his own testimony, T & C’s officials could rightfully assume that Jones either was disinterested or would contact them after talking to his wife. In this light, it is concluded that he would not have been hired in consequence of the September 7 interview even if not allied with Local 292. The 8(a)(3) allegation in his case shall be dismissed. 29 Chartrand is excluded from the remedial class. He did not file an application. Buelow admitted that he took Chartrand’s name and address, but observes that there was no followup because Ameristaff was removed from the job. The problem here is the element of knowledge of Chartrand’s union affiliation. He avers that Buelow asked about his employment experience. However, when examined as to which contractor he identified, Chartrand did not respond di- rectly, replying, ‘‘I had worked for Muska [a union contractor] that year or the year before.’’ It was my impression that Chartrand was testifying from deduction, rather than what he actually told Buelow. His testimony was unreliable, and, accordingly, unlike those filing applications, there is no evidence that either T & C or Ameristaff had any basis for distinguishing Chartrand from Weseman, who acted on his own, quite independent of any union. Thus, the General Counsel, in his case, has failed to identify this latecomer with others denied interview on union-related grounds. 30 The General Counsel’s witnesses were not entirely consistent. Thus, Don Larson, also a member of Local 292, testified that Buelow returned and simply announced ‘‘that this was a nonunion job.’’ Thus, his testimony fails to reflect any element of interroga- tion. 31 Region 18 apparently gave a great deal of attention to certain evidence uncovered during the investigation which triggered the 8(a)(1) allegations in this case. Legally and factually, these issues demand the same degree of attentiveness on the part of the under- signed as the other, remedially robust issues in this case. Here, coun- sel for the General Counsel filed a 43-page brief, a document, vir- tually useless to any reasoned evaluation of the Government’s posi- tion concerning the numerous independent 8(a)(1) allegations. Ap- parently the Charging Party assumed that the General Counsel would do a better job in this regard, for it specifically relies on the General Counsel’s ‘‘representations and arguments’’ on these issues. It is true that the General Counsel’s narrative discussion imputes conduct to management representatives which might be viewed as incompatible with Sec. 7 guarantees. However, little attempt has been made to isolate these references to any definable unfair labor practice, and, certainly, no attempt is made to put forth rationale as to why, how, Continued tions compiled and available to Sager at the Embassy Suites offered a detailed basis for evaluating past experience and qualifications. Ameristaff’s prescreening format developed little more than information concerning a prospect’s will to work nonunion. There is no evidence that prescreening re- sults were ever communicated in any form to either Sager or Defferding. Moreover, Jones obviously was not prescreened and no such requirement was mentioned in his case. Indeed, Buelow testified that Sager said nothing about whether he would interview people without appointments until after Buelow had made this report some of the applicants were union. In my opinion, Sager’s testimony concerning prescreening was yet another false plank in his attempt to structure an explanation disassociating the sudden termi- nation of the interview from disclosure that the waiting appli- cants were union members.27 With the collapse of Sager’s credibility, it follows that the interviews were terminated when T & C remained at ‘‘square one,’’ with no appreciable leads to a single Minnesota jour- neyman. Though Sager was understandably ‘‘anxious’’ to man this job, this objective was displaced by a more compel- ling need to shun a waiting group of applicants, all, or some of whom, would qualify. His action, after learning of the union presence, is rationally explained by the inference gen- erated under the General Counsel’s case-in-chief. Accord- ingly, except in the case of Jones,28 it is concluded that the Respondent has failed to demonstrate by credible evidence that those named in the complaint, who filed applications,29 would not have been interviewed and considered even if un- affiliated with Local 292. Accordingly, Respondent T & C violated Section 8(a)(3) and (1) of the Act by this peremp- tory conduct. (2) Interference, restraint, and coercion (a) By Buelow The complaint alleges that the Respondents violated Sec- tion 8(a)(1) by Buelow’s interrogation of Embassy Suites ap- plicants as to whether they were looking for union work. In support, Priem testified that Buelow collected the completed applications, but, after about 15 minutes, he returned stating, ‘‘Are you looking for all union work?’’ Malcolm Hansen’s initial testimony describes the inquiry as, ‘‘Are you men in- terested in union work?’’30 Buelow denied that he raised the ‘‘union-nonunion’’ issue, claiming that it was the applicants that questioned him as to the existence of union work. He claims that he replied to these inquiries by stating, ‘‘we do have both types of con- tractors, however, the people that were here today were rep- resentatives of Town and Country Electric and they were interviewing for the project at Boise.’’ Thus, those present were alerted to the fact that union work was not available at that time. In this state of events, even accepting the above accounts of Priem and Hansen, their testimony would not substantiate that Buelow’s expressed curiosity was coercive. The failure by the General Counsel to analyze and cite precedent in con- junction with what, at best, presents a thin, borderline issue is inexcusable.31 Without benefit of guidance, it is my view 1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or under what line of thinking, the allegations should be sustained. This ‘‘scattershot’’ technique is inexcusable. No one knows better than the General Counsel just what evidence, theories, and precedent support the violations where a complaint incorporates multiple counts of Sec. 8(a)(1). The administrative process could be bene- fitted through the simple task of passing this information on so that the General Counsel’s position might be understood, and the 8(a)(1) allegations resolved under conditions minimizing confusion, delay, and opportunity for error. While can appreciate that no party has an obligation to file a brief, there also is no rule obligating a litigant to make an effective presentation. 32 The failure to brief the 8(a)(1) allegations in meaningful fashion has produced an esoteric game of mix and match. The degree of guesswork involved is suggested by the General Counsel’s abstract comment that the remark covered by this allegation constitutes an unlawful ‘‘promise.’’ 33 Recently, the Board appears to have hesitated over possible 8(c) protection for antinuion argumentation founded on customer pref- erences. See Harrison Steel Castings, 293 NLRB 1158 (1989). The General Counsel, having failed to analyze the issue, or cite any au- thority whatever, again, in context of a debatable issue, has dumped its own responsibility as an adversary on the administrative law judge. that, in context, the inquiry as to the applicants’ preferences would have no tendency to impede protected rights. Earlier, the jobseekers, who were accompanied by Local 292 busi- ness representatives, and who obviously were acting jointly to further institutional designs, had completed applications which, according to the General Counsel’s own argument, contained information clearly disclosing a history of union employment at union scale. It was this, and only this willful disclosure, which served to invite Buelow’s response. Against this background, it strains credulity to assume that any among this group would have sensed any degree of pres- sure from an attempt to clarify their preference for union or nonunion work. Rossmore House, 269 NLRB 1176 (1984). The complaint also alleged that Buelow, still at the Em- bassy Suites violated Section 8(a)(1) by telling applicants that they would be employed ‘‘only at union projects and . . . not . . . at nonunion projects.’’32 This allegation is ap- parently based on testimony of Priem and Hansen. Priem de- scribes Buelow as stating that Ameristaff had union and non- union work and that the applications taken at the Embassy Suites would be placed on file until the union work came in. Priem’s prehearing affidavit reflects that after he asked Buelow what would happen to the applications, the latter simply replied that they would be filed ‘‘for future job op- portunities.’’ To this Priem replied, ‘‘I think I know what file they will go into.’’ Thus, the affidavit omits the union/nonunion dichotomy. (R. Exh. 2.) As was true there, Priem’s account given at the hearing plainly amounted to his interpretation of Buelow’s remarks, rather than what was ac- tually said. Hansen testified that Buelow stated: [T]he contractor that we are now working with now is for nonunion jobs. There will be union work coming in later. We will keep your applications on file for a later date. The two versions are not perfectly consistent, and in my opinion Hansen’s is too vague to support a violation. The differences, together with my lack of complete confidence in Hansen and Priem, lead me to give the Respondents benefit of the doubt and the 8(a)(1) allegation in this respect is dis- missed. (b) By Ron Sager The complaint alleged that the Respondents violated Sec- tion 8(a)(1) of the Act by several remarks attributed to Ron Sager at the Embassy Suites. The first involves a comment, somewhat identical to that attributed to Buelow, that those without appointments would be placed in a file for employ- ment at union projects and would not be considered for em- ployment on nonunion jobs. The General Counsel’s brief does not mention any testimony which would be relevant to this allegation. Yet, no attempt is made to delete it. Appar- ently, it was more convenient to defer this allegation to the administrative law judge. After an independent study of the record, no evidence has been located which might tend to substantiate this allegation and it is dismissed. The complaint also alleges that Sager expressed a threat that ‘‘he could not hire . . . members of a union because his customers would not allow it.’’ The General Counsel does not specify the testimony relied on to support this allegation. My own culling of the record suggests that the allegation might pertain to testimony by three different witnesses to three distinct incidents. The first derives from a colloquy between Priem and coun- sel for the General Counsel, as follows: Q. Was anything said about the customer during Ron Sager’s remarks when he came into the room? A. Yes. They had stated to us that we can’t hire sig- natory people as per our customer on this project. [Em- phasis added.] No attempt was made at the hearing to clarify that it was Sager who made the statement. In any event, if made, others would have been within earshot and I am unwilling to accept Priem’s uncorroborated testimony in this respect. A second possibility emerges from testimony by Craig Jones, who relates that, during his interview, he asked wheth- er T & C had considered working union, and was told by Sager that they would ‘‘not be signatory to any union and that basically their customers preferred it that way.’’ Sager could not recall making these statements. In crediting Jones, his account merely expresses a customer preference for non- union contractors, rather than an absolute ban, and hence the statement is considered fair argumentation within the pur- view of Section 8(c). The third derives from Hansen’s employment interview. He claims that, in the course thereof, Sager said, ‘‘Well, you know, our customer up there is . . . Boise Cascade. . . . We can’t have any signatory employees up there.’’ ‘‘Our customer, Boise Cascade, will not allow it.’’ Sager denied any such remarks. Defferding could not recall any conversa- tion to the effect that they couldn’t have union signatory peo- ple at Boise Cascade, or that Boise Cascade, wouldn’t allow such employees into the plant. As indicated below, I believed Sager over Hansen, in connection with coercive comments the latter attributed to Sager during his employment inter- view. Accordingly, any 8(a)(1) allegation based on this inci- dent is dismissed.33 1267 TOWN & COUNTRY ELECTRIC 34 Defferding was, perhaps, the least impressive witness. There are many reasons why I have great difficulty entertaining the notion that T & C was indifferent to union affiliation. For reasons already given, I have difficulty accepting that T & C operatives were un- aware of the content of Ameristaff’s screening process. Moreover, prior to this interview, Buelow reported that the presence of union members might well constitute a threat to the recruitment process, a development which would arouse strong curiosity as to possible involvement of those yet to be interviewed. The suggestion by Defferding that T & C was indifferent to union allegiances hardly enhances his credulity in this proceeding. 35 Hansen’s interview was conducted in two parts. Defferding testi- fied that, during the interval between those meetings, he observed Hansen talking with his union ‘‘buddies.’’ He claims that, for this reason, when Hansen returned, Defferding asked: ‘‘are they giving you a hard time because you are considering working for us[?]’’ Thus, Defferding claims to have assumed that ill will was blowing between Hansen and other applicants. This is incredulous. Hansen at the time had not been offered a job. Like Hansen, his union ‘‘bud- dies’’ were present in quest of jobs. That Defferding could have read conflict between Hansen and any of the applicants is pure nonsense. I am convinced that Defferding’s concern stood on more pragmatic grounds. Before treating with Hansen, Defferding and others on the interview team had been alerted to union intervention in connection with the manning of this job. Being sensitive to union attitudes to- ward ‘‘merit shop’’ contractors (C.P. Exh. 1), the dynamics of what had already transpired would lead Defferding to a single concern; namely, that Hansen was in league with other union members present on that occasion. In contrast with Defferding’s testimony, it is more likely that he would assume that Hansen was part of the conspiracy, and that he was hired out of desperation, on hope that he could be controlled. The complaint also alleges 8(a)(1) allegations on grounds that Sager: (i) threatened that ‘‘an applicant for employment would be required to resign membership if hired,’’ while questioning the applicant as to whether he would comply, and (ii) threatened that an ‘‘applicant could not discuss unions or organize on behalf of unions at the Boise Cascade site.’’ These allegations presumably are predicated on testimony of Hansen as to what transpired during his interview at the Embassy Suites. Hansen’s version, in material part, is as fol- lows: Well, they called me in there and they said, ‘‘Well, we know you are a union member.’’ I said, ‘‘Yes, I’ve been a union member for 28 years.’’ And then we talked about the job up there and what it consisted of, and Mr. Sager asked me . . . so I went through basi- cally my work experience since 1956. I think then Denny Defferding went into that he was once a union member and that any people they hire, once they hired them, they expect them to drop their union membership, and Denny Defferding asked me if I would be willing to do that, and I responded with ‘‘whatever.’’ Ron Sager was very emphatic that there would be no talk about union, no organizing. He said we could talk about fishing, hunting, women, but there will be no talk about the union in any shape or form. After a break in the interview, Hansen returned and was hired. He claims that Sager stated at that time, as follows: We’ve got to trust each other. We’ve got to be con- fident [sic]. We don’t have to tell what we know. ‘‘In fact there is two people out there in the hall. I imagine they are waiting for you. I imagine they are union members. Don’t tell them anything. . . . You don’t have to.’’ I asked him, I said, ‘‘Well, when will I be getting this vacation and hospitalization and all that you offered?’’ Well, he said, ‘‘As soon as you and I can agree on that you are coming to Town & Country per- manent and you drop your union membership, you will receive all those benefits.’’ Sager testified that during the first interview, Hansen vol- unteered that he was trained by and a member of the IBEW. He denied that either he or Defferding inquired as to his union status. Sager denied any statement that Hansen had to drop his union membership before getting on T & C’s pay- roll. He denied that anything was said at that time concern- ing Hansen’s right to discuss the union on or off the job at Boise Cascade, nor was his right to engage in organization activity discussed. Defferding, when asked if he had questioned Hansen about the Union, stated: ‘‘I don’t remember asking the question, I just remember it came up. I believe he volunteered it because we had no problem with it.’’34 Defferding testified that, once disclosed, the only comment concerning Hansen’s member- ship pertained to whether, as a union affiliate, he had any problem accepting employment with a ‘‘merit shop’’ because others who did so, later were exposed to threats. Defferding denied that anything was said concerning trust and confiden- tiality. He also denied that Hansen would be required to drop union membership before going on T & C’s payroll. He de- nied that Hansen was told that he could not organize on that job, or that their were limitations on his right to do so. Neither Hansen, Sager, nor Defferding impressed as im- peccable witnesses. In many areas, I would prefer Hansen over defense witnesses, including Sager and Defferding. However, in this instance, T & C is given benefit of the doubt. Hansen was given a job out of Respondent’s despera- tion, with knowledge of his union history. Prior to his inter- view, Sager and Defferding were alerted to a possible union attempt to infiltrate the hiring process, and, between inter- views, Hansen was observed cavorting with his union ‘‘bud- dies.’’35 In this light, probability leads me to believe the tes- timony that T & C would have finessed the union issue, rath- er than address it with the heavyhandedness suggested by Hansen. On the basis of Sager’s credited denials, the 8(a)(1) allegations emerging from this interview are dismissed. 3. The termination of Hansen a. Overview The second major combination of allegations relates to the employment of Hansen, who had been a member of Local 292 for 28 years and a licensed electrician for about 18 years. He was not a paid union organizer, and apparently did not serve the Union in any official capacity. As indicated above, he was hired with knowledge of his union history as the last to be interviewed, and the only licensed electrician secured through Ameristaff’s Embassy Suites venture. Sager 1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 36 I credit Hansen’s denial that he claimed master’s status. Sager testified that in Wisconsin, it was not unusual to find one with a master’s license willing to work for $16 hourly. Consistent there- with, Defferding testified that Hansen was given T & C’s $16 rate for master electricians at the interview. This is inconsistent with the $15 rate documented in G.C. Exh. 5(b), the employment contract be- tween Hansen and Ameristaff. Moreover, Buelow corroborates that Hansen was initially assigned a $15 rate, that was later increased to $16, the rate reflected in Hansen’s paycheck. It is also noted that in his employment application, dated September 7, Hansen fails to represent that he held a master’s license. G.C. Exh. 5(b). 37 By letter of that date, the Union notified T & C that Hansen was a member of Local 292. G.C. Exh. 5(a). The return receipt re- flects that it was not delivered to T & C until September 21. R. Exh. 3. T & C replied to the Union by letter of September 21, denying that Hansen had ever been employed by it, naming Ameristaff as his employer. The letter is cumulative as Hansen’s union sympathy, and T & C’s knowledge thereof is a given. 38 Smithback testified that he actually gave the directions to Han- sen on this date, while telling him that he would have to provide, ‘‘on his own,’’ safety glasses with side shields, hard hat, and safety shoes. He adds that at a safety meeting on Monday, September 11, attended by Hansen, the Boise-Cascade requirement that these items be worn at all times was mentioned repeatedly. Defferding testified that, when hired, Hansen was told that he was required to wear steel- toed shoes. It is a fact that Hansen did not arrive at the jobsite with safety shoes, and circumstances precluded his obtaining them until his last day on the job. In contrast with Smithback and Defferding, Hansen testified that before reporting, he was told to bring his tools and a hammer drill if he had one, but not safety shoes. Although the testimony dealt with Hansen’s compliance with safety standards, Sager admitted that this did not contribute to T & C’s decision not to place Hansen on its payroll. 39 Smithback testified that he was involved in a meeting and when he returned to the work area ‘‘around noon or shortly after,’’ he was notified that the inspectors were present. Tom Steiner apparently did not agree. He described a great deal of work as having been per- formed prior to the arrival of the inspectors. He claims that they did not appear until late afternoon. testified that they elected to give Hansen, who allegedly stat- ed that he had a master’s license,36 an opportunity to work. Hansen accepted at $15 hourly and $25 daily per diem. Though interviewed and selected for hire by T & C offi- cials, technically, Hansen was retained on Ameristaff’s pay- roll for referral to T & C’s Boise-Cascade job. (G.C. Exh. 5(b).) He worked on September 12–14. On this latter date, he was terminated when T & C cancelled its contract with Ameristaff, while declining to place Hansen on its payroll.37 As indicated above, Ameristaff’s relationship with Hansen appeared to be a paper transaction, with T & C providing sole supervision, and Ameristaff having no discretionary role in his discharge. T & C’s key players in the elimination of Hansen were Sager, Defferding, and Rodney Smithback, T & C’s project superintendent. However, Smithback was the sole T & C functionary with day-to-day supervisory authority at the Boise-Cascade site. His testimony, with support from T & C employees Randy Reinders, Tom Steiner, and Michael Grow, is critical to the effort on the part of the defense to impeach Hansen’s performance on that job, so as to confirm that union considerations where not involved. The General Counsel’s contention that Hansen was termi- nated on proscribed grounds centers on undisputed testimony that, during his brief 3-day tenure, Hansen flaunted his union membership, while engaging in overt, repetitive efforts to or- ganize coworkers. Before announcing his intentions in that regard, T & C, on Tuesday, September 12, increased his wages and per diem. He was gone 2 days later. Under the complaint, the organizational activity had a con- tumacious flair, since manifested by Hansen in the face of alleged instructions that he cease all union activity. These in- structions are among a series of independent 8(a)(1) allega- tions naming Smithback as having told Hansen not to discuss the Union on the job, on the jobsite, or off the job; as having threatened discharge for organizing on the jobsite, and as having questioned Hansen as to what it would take to get him to quit discussing unions and to support the Company. The General Counsel implicates Ron Sager in this coercive pattern through allegation that he too prohibited Hansen from discussing or engaging in union activity. b. Hansen’s employment at Boise Cascade On Friday, September 8, Hansen called T & C, speaking with Sager. He at that time was given directions to the ‘‘Ar- rowhead Lodge’’ in International Falls.38 T & C’s onsite personnel at Boise Cascade during Han- sen’s tenure was limited to Project Superintendent Smithback, Tom Steiner, a 25-year-old apprentice, who had never worked outside of Wisconsin for T & C, Randy Reinders, a 29-year-old journeyman electrician unlicensed in Minnesota, and Mike Grow, a helper on T & C’s payroll. Much of the testimony focused on Hansen’s 3-day tenure, with the General Counsel stressing his union activity and the Respondent’s reaction thereto, and T & C attempting to dis- credit Hansen’s competence as well as performance during this period. My findings in this connection are summarized below. Tuesday, September 12. This was T & C’s first day on the job. According to Smithback, the crew arrived later than in- tended. After the unloading of tools, another delay was en- countered because Boise Cascade had not laid out the mate- rials as promised. Around noon, State Inspectors Bob Johnsen and Gordon Oslin met with Smithback in the crew’s presence.39 Smithback was informed by the inspectors that T & C was in violation of Minnesota restriction on crew ratios. Thus, in addition to Smithback, there were three T & C employees, plus Hansen on the job. This offended Minnesota law by ex- ceeding the required ratio of licensed to unlicensed person- nel. Johnsen stated that because Hansen was the only li- censed journeyman, two others would have to be removed. To comply, Smithback agreed that he would perform no electrical work, while electing to remove Mike Grow. A dispute exists as to whether the investigators were in- formed that Hansen was employed by a Ameristaff and not by T & C. Thus, T & C’s witnesses claim that Hansen re- ported this at that time. For example, according to Smithback, Hansen told the investigators: I don’t think that Town and Country is legally working because I don’t work for them. I work for a temporary 1269 TOWN & COUNTRY ELECTRIC 40 Mike Grow, Randy Reinders, and Tom Steiner would later cor- roborate Smithback in this regard. Steiner testified that Smithback said he would check to confirm Hansen’s position re Ameristaff. Grow, Reinders, and Steiner, virtually at every turn, offered choral corroboration of Smithback’s testimony. The improbability of their testimony at this juncture foreshadows inherently questionable ac- counts in other significant areas. I considered them to be thoroughly unconvincing. 41 Smithback and Mike Grow denied telling the inspectors that Hansen was employed by T & C. Reinders testified that Smithback told the inspectors that Hansen was employed by Ameristaff. 42 I credit Hansen and Johnsen. Apart from the latter’s disinterest, I find support for their accounts in testimony by Sager that he did not learn that there was a question concerning the use of ‘‘tem- porary’’ or third party employees on the Boise-Cascade job until much later when he received a message from Robert C. Stephenson, T & C’s vice president. However, Sager and Smithback confirm that they participated in a telephone conversation on the heels of the con- ference with the inspectors. If the agency issue had been broached to the inspectors, Smithback certainly would have been mentioned this to Sager. If Hansen was right, Ameristaff’s involvement was far more critical than other topics discussed with the inspectors. In that event, T & C would have to terminate operations until a qualified journeyman could be hired and placed on its payroll. I also have doubts that, if aware of Ameristaff’s involvement, the inspectors, as Smithback indicates, would not have known its legal ramifications. John Quinn, the executive secretary of the Minnesota State Board of Electricity, testified, without contradiction, that he informed Stephen- son on September 11, that he had ‘‘advance notice’’ that T & C planned on hiring through an employment agency, and that Stephen- son was informed that this arrangement would be unacceptable. Smithback’s testimony that the inspectors were not of a similar mind assumes a possible, but unlikely lack of communication between electrical board headquarters and the electrical board’s field person- nel. It is more likely that, as Johnsen testified, Hansen was identified as a T & C employee, thus obviating discussion of the agency issue. 43 Steiner testified that the only time Hansen mentioned his earn- ings was when he said that ‘‘he was making more than T & C was giving him.’’ When Steiner asked how much, Hansen declined to tell him. Steiner was a thoroughly unreliable witness, whose testimony struck as a pat, finely honed attempt to place meat on the bones of Respondent’s case, wherever he could and with repeated exaggera- tion and disregard for truth. Reinders testified that the only reference to wages that he was aware of grew from Hansen’s discussion of differences between his earnings on union jobs and at Boise Cas- cade. As for Grow, on his inquiry as to how Hansen could afford to lose money by working for T & C, Hansen denied that this was the case, indicating that his hourly rate was being subsidized by the Union. I believed Hansen in this respect. 44 In this instance, I believe that Hansen was mistaken. Although I have no doubt that such a remark was made by Smithback during Hansen’s employment, Tuesday was a bit early. It was not until Wednesday that Hansen announced his intention to organize. Prior to that, his references to union activity were general, oblique, and ambiguous, and in the circumstances would not have prompted the strong admonition attributed to Smithback. 45 In the face of Smithback’s admission as to the late start that morning, it is of interest that Reinders testified that after the inspec- tors left, not much work got done because of the dialogue that en- sued in consequence of Hansen’s claims for more money and author- ity based on the licensing problem. company Ameristaff and I don’t think they can be here doing that.40 In response, Johnsen, according to Smithback, indicated that the inspectors were not sure of the ruling covering that situa- tion, and therefore would let the job progress, but that the circumstances were strange and the job would be watched closely. Hansen denied having mentioned Ameristaff at that time. In fact he asserts that Smithback described him to the inspec- tors as an employee of T & C. Inspector Johnsen, an appar- ently disinterested witness, corroborated Hansen. He testified that Smithback identified himself as the T & C representative on the job, and that when Johnsen inquired as to whether those on the job, including two apprentices, were his em- ployees, Smithback responded, ‘‘Yes, they are. Mr. Malcolm Hansen is the journeyman in our employment.’’ Contrary to T & C’s witnesses,41 Johnsen denied that Hansen referred to his employment with Ameristaff at that time.42 On departure of the inspectors, Hansen advised Smithback as follows: Well, it looks like I’m pretty important guy on the job right now. If only two people can work and it’s going to be on my license under my direction, looks like should have a little more money. Smithback then apparently contacted Sager, who in turn spoke with Hansen. According to Hansen in their ensuing conversation, he sought an increase and eventually settled on an offer of $17 hourly and an increase in per diem to $32. With the exception of the size of the increase, Sager does not seriously dispute the content of this conversation. Later that day, during break, Steiner asked Hansen how much he was making on the job. Hansen told him that he earned more than Smithback, also informing Steiner that ‘‘at home,’’ he customarily earned $25.70 an hour. In response, Steiner asked what Hansen was doing at International Falls. Hansen stated that he could not disclose at that time, but would tell him before leaving the job.43 According to Han- sen, Smithback who heard and was unhappy with Hansen’s remarks, allegedly instructed: ‘‘I don’t want you talking about unions on the job, at the cabin or anything. I don’t want Steiner and Reinders to hear it. I just don’t want to hear it. That’s it.’’ Hansen stated that he would not com- ply.44 Sager testified that on the afternoon of September 12, he received a call from Smithback who was unhappy with the fact that Hansen was telling the other workers on the job that he earned more than Smithback. Sager suggested that the lat- ter call Defferding, while indicating that he should avoid up- setting Hansen because he was needed. Sager added that Hansen had a gun at their head, requiring respect for his de- mands. On September 12, the curtain was lifted on the attempt by T & C’s witnesses to portray Hansen as a poor worker, who failed to demonstrate that he possessed craftsmenlike skills. Smithback admitted that he had no direct opportunity to evaluate Hansen’s work that day. He did testify, however, that he was ‘‘a little surprised at the amount of work that they didn’t get done on the 12th.’’45 He added that: [B]oth Tom Steiner and Randy Reinders came up to me and asked me specifically if I could find something for Mick to do, so they could get some work done. He was interrupting them, consistently talking, would not allow them to proceed in a fashion to which they were accustom to working. 1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 46 The attack on Hansen’s competence included reference to the latter’s position that bent conduit was subject to appropriate measure either on a top-to-top or bottom-to-bottom basis. Steiner with initial agreement from Reinders stated that this was in error as the accurate measurement could only be made from top to top. Reinders, on cross-examination was forced to concede that it made no difference, as the top would become the bottom simply by turning the offset pipe upside down. 47 Reinders claims that he attempted on Tuesday to correct Han- sen’s method of handling the drill. Hansen, however, denied this, pointing out that it was his practice, and for years, had carried his own personal drill bit for use on this, and all other jobs on which he was employed. 48 As noted in T & C’s posthearing brief, Hansen, in addition to feeding the clamps, would pass conduit to the men as they worked on the scaffolding, and move it for them as their work progressed. 49 Smithback relates that were it not for the licensing problem, Hansen would have removed from the job at this point. This is taken as a remarkably strong statement after only a partial days work and by one who claimed no opportunity directly to observe Hansen. Moreover, the diary entry itself is questionable. It appears inappro- priately placed, lending support to the possibility that it was entered after the fact, as argued by proponents of the complaint. In any event, the entry makes no reference to the quality of Hansen’s per- formance. This omission is striking when considered in light of Steiner and Reinders’ accounts of destroyed drill bits and saw blades due to poor work practices, as well as his alleged output of fouled parts, requiring partial rework. Consistent with Tuesday’s variance, entries in the diary for the balance of that week dwell exclusively on productivity, with not a single mention of Hansen’s failure to per- form in a workmanlike manner. 50 According to Sager, he did not learn that there was a question concerning the use of temporary employees on the Boise-Cascade job until Tuesday, following the pay raise conversation with Hansen. The source was a cryptic message from Bob Stephenson. Sager first places this as having occurred that ‘‘morning,’’ but later would tes- tify that this message was not received until 4:30 p.m. In this con- nection, it is noteworthy that John Quinn, the state electrical official, testified that when, on September 11, he instructed Stephenson not [A]s they set up a scaffold, placed pipe on it and then were about to take clamps to the top of the scaf- fold with them . . . and then proceed to run the conduit[,] . . . Mick would not allow them to take the clamps up because then he would have nothing to do [if] he couldn’t throw the clamps up to them. So he took essentially a two man job and made it into a three man job and in the process—they com- plained about he talked an awful lot. Steiner’s testimony was more far reaching than Smithback’s summation. His criticism appeared to highlight malfeasance, rather than nonfeasance. He testified that, to- gether with Reinders, on Tuesday, he was running conduit, above ground on scaffolding, as Hansen, at ground level bent pipe for them. When asked to evaluate Hansen’s work in that regard, Steiner stated that he could have done a better job as Hansen’s bends were not in accord with measurements, and had skewed angulation. Steiner claims that he rebent some of the pipe. Steiner also testified that an offset made by Hansen was not right, and that from his observation, Han- sen lacked familiarity with the machine, a conclusion de- duced from his use of angulation charts to discern multipliers used to effect bends of different degrees. Steiner also testified that the crew was cutting strut, a ‘‘U’’ shaped channel to be anchored to a wall designed to hold conduit. Steiner asserts that the cuts, made on the porta- band saw, were not straight, and that most of the cutting was performed by Hansen. He also claims that he observed Han- sen, rocking the band saw, a practice which could break the blades, and instructed him as to the proper technique. With Hansen being the primary operator of the band saw, they went through six blades in 3 days. In addition, Hansen and Steiner had to recut struts. Steiner testified that late in the day, the crew resumed hanging strut on the wall. He had Hansen cut a strut for a ‘‘disconnect’’ which ended up shorter than the measurements Steiner had provided. Reinders confirmed that this short length was pursuant to a measurement originally made by Steiner, then remeasured by Hansen.46 If Steiner is to be believed blades were not the only tools ruined by Hansen that day. He related that the latter in drill- ing holes in the struts, spurned the use of a ‘‘center punch’’ as a starter, using a larger bit, forcing the drill, at high speeds, directly on the metal. This allegedly caused the drill bits to dull rapidly. Hansen allegedly burned up every avail- able drill bit by the end of the first day.47 Steiner did confirm that, among the above-described tasks performed by Hansen that day, he insisted on feeding clamps to Steiner and Reinders as they worked on the scaffolding. The box of clamps were not placed on the scaffolding before hand, because, precisely as Smithback had related, Hansen needed something to do.48 When examined further on this point, Steiner offered that Hansen really preferred this task to other work that he might have done. Steiner ultimately agreed that the accumulation of too many parts and tools on scaffolding would tend to create a safety hazard. Reinders also spoke to Smithback that day, reporting that the drill bits were shot, and that they had broken so many band saw blades that only one remained. In fact, Mike Grow was sent to the hardware store to purchase additional blades that Tuesday afternoon. On cross-examination, he admitted that two portabands were on the job and that both were used regularly, frequently and by ‘‘everybody.’’ Smithback testified that he called headquarters late in the day to report that he was not pleased with Hansen’s perform- ance and that he was not meeting expectations as ‘‘he was unsatisfactory, his performance was unsatisfactory.’’ Smithback claims that, on September 12, he made an entry on the daily foreman’s diary citing Hansen with work that ‘‘does not come close to being satisfactory in the production end.’’ There was no reference to damaged materials, tools, or parts. (R. Exh. 12(a).)49 Wednesday, September 13. Apart from the assault on Han- sen’s competence, testimony as to events of this day includes Hansen’s account concerning the emergence of the Ameristaff issue and evidence that this was the first occasion on which Hansen announced specifically his aims on behalf of the IBEW. First, Hansen testified that in the morning, Area Inspector Gosland approached him on the jobsite requesting that he identify his employer. Hansen, in Smithback’s presence, re- plied: ‘‘Well, I’m not positive who I work for. I filled out an application with Ameristaff, but I’m working with the guys here from Town & Country and I use Town & Coun- try’s tools and Town & Country employees are . . . working off my license.’’ According to Hansen, Smithback informed Gosland that Hansen was working for T & C.50 1271 TOWN & COUNTRY ELECTRIC to use a labor service, Stephenson indicated that adherence would be no problem. Quinn added that, in his presence, Stephenson tele- phoned his office, overhearing Stephenson instruct that ‘‘they could not use an employment service for contract labor, and that should be taken care of.’’ (This was memorialized by Quinn’s letter to Ste- phenson dated October 18. G.C. Exh. 12.) According to Sager, he did not actually talk to Stephenson until Wednesday, September 13, whereupon Stephenson reported that Quinn had advised that they could not use temporary employees on any jobsite in Minnesota. 51 If Smithback had made the report he claims to have made on Tuesday evening, this exchange would have been old news and re- petitive. 52 Here again, the criticism did not include references to the bro- ken tools and scrapped parts, or the basic charge of ‘‘poor workman- ship’’ attributed to Hansen by Steiner and Reinders. 53 Smithback testified that Hansen had also made a comment to him on Thursday morning suggesting that Hansen was under the im- pression that he was subject to a broad ban on union activity. Thus, he testified that, at that time, Hansen asked where Smithback got the idea that the Union could not be discussed on mill property. Later, during an afternoon break, Hansen announced, for the first time, that he was on the project to organize for the Union. Smithback, Steiner, and Reinders were present. Ac- cording to Hansen, at that point, Smithback leaped to his feet, stating, ‘‘Jesus Christ, I don’t need that. I don’t want you talking about unions anymore. I got to call the office and talk to Ron Sager.’’ Smithback then went into the office. Smithback admits that Hansen made this announcement, but he testified to saying nothing before seeking guidance from headquarters. According to Hansen, Smithback later returned, advising Hansen, in the presence of Steiner and two Boise Cascade employees (Everett Hall and Dennis Moran) as follows: I just talked to Ron Sager over at Appleton, and I don’t want you talking about the union. Ron Sager doesn’t want you talking about the union. Boise Cascade doesn’t want you talking about the union, and if you don’t quit talking about the union, I’m going to fire you. Hansen replied, ‘‘That could be, but I’m not going to stop talking about the Union.’’ Sager concedes that at some point that day, Smithback called, reporting that Hansen was engaged in union activity. Sager claims that he instructed Smithback that he could not restrict Hansen from doing this on his own time, but, if while working, he is talking to excess on any topic, Smithback was free to appeal for a little less talk and a little more work. Consistent therewith, Smithback testified that he then ap- proached Hansen telling him ‘‘please talk less and do more work.’’ Parenthetically, it is noted that Sager relates that he had received an earlier phone call that morning from Smithback who reported that Hansen was wandering around and not being very productive. Sager told Smithback that at this point they had to make decisions at headquarters, and for him to just keep his eye on the situation. Smithback averred that he was told in that conversation ‘‘there’s not a lot you can do.’’ He claims that they asked if Hansen was working steady, whereupon Smithback replied, ‘‘No, he talks a lot.’’51 Smithback states that he was told that all he could do ‘‘is ask him to talk less and work more.’’ However, Smithback claims that he was admonished that Hansen could talk about anything he wished as long as it doesn’t interfere with the work. According to Hansen, at Smithback’s urging, he tele- phoned Sager, who allegedly stated: I don’t want you talking about the union. . . . Boise Cascade won’t allow us to talk about the union. I don’t want you talking about it. I don’t want you talking about anything but the job. I don’t want you talking about church. I don’t want you talking about gambling. I don’t want you talking about anything but work. Now go get Smithback and tell him to call me. Sager agrees that this conversation took place. He claims, however, that he informed Hansen that Smithback had re- ported that his productivity was under question and that he didn’t have safety shoes as required. An incident involving a hard hat was also mentioned. Hansen allegedly grew angry, hanging up the phone.52 Of major significance to the above conflict is a concession by Sager that on either Wednesday or Thursday, or both, he possibly had two conversations with Hansen concerning Han- sen’s declaration: ‘‘I’m going to not stop talking about the union.’’53 Sager alleges that he reacted as follows: I don’t care what you talk about as long as it’s on your own personal time, if it interferes with your work, that’s another story . . . you can talk about anything you want . . . on your breaks, your noon hours, your own personal time before work, after work, at the lodge, whatever, but you can’t talk about it on your work time, if it interferes with your work. . . . same way if you were talking about baseball or hunting or fishing, religion, politics, telling a joke whatever. The General Counsel in this respect raises the question as to why Hansen would repeatedly assert his intention to persist in union activity, if Sager and Smithback’s constraints did not extend beyond the project and did not reach nonworking time. After all, Hansen lived, slept, ate, drove to and from work with T & C’s employees and had ample access to them. Sager’s admission concerning Hansen’s expressed in- tention to pursue organization is more compatible with the total restraint, then the limited one suggested in his own, and the testimony of Smithback. In a further incident, as the men were returning from work that day, Hansen relates that Smithback, in presence of either Steiner or Reinders, complimented his work, asking him how much it would take to get him to ‘‘jump ship and come over to our side.’’ When asked what he meant by that, Smithback said, ‘‘Get up off your union activity and come to work for us.’’ Hansen grinned and said, ‘‘I don’t think you have enough money.’’ When they arrived at the cabin, Smithback repeated that Hansen was not to discuss the Union as he was tired of hearing it and did not want the others to hear it. In addition to denying all 8(a)(1) conduct attributed to him by the complaint, Smithback was sharply critical of Hansen’s performance this day. First he states that his other elec- tricians complained that Hansen was rough with the manual and power tools. In one instance, Tom Steiner accused Han- sen of breaking five blades on a portable band saw due to 1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 54 Reinders, who like the rest of T & C’s witnesses struck as heav- ily biased and totally lacking in objectivity, first corrected himself when he initially placed this appeal on Wednesday, then twice stated that it occurred on Thursday morning. Apparently dissatisfied with this response, T & C’s counsel inquired a third time. Apparently, Reinders got the message, for this time he went back to Wednesday, relating that these very words were used by Smithback to Hansen at that time. 55 Reinders was less sure of the cause, and apparently did not ob- serve Hansen take a hammer to the unit. When questioned as to the cause, he speculated: ‘‘Maybe the way he was forcing on the handle to get it started on the pipe might have had something to do with it.’’ The ‘‘maybe’’ became accusation when Reinders clarified that Hansen was leaning into the handle, an unnecessary and improper way to operate that machine. However, on cross-examination, Reinders admitted that he did not know when the teeth broke off, and to further confuse his speculation, conceded that others had used the ‘‘300 threader’’ that week. 56 Hansen’s problems on the ‘‘300 threader’’ apparently did not end on Wednesday. Steiner testified that on Thursday, Hansen was engaged on that machine cutting and threading short pieces of con- duit for installation. The next day, after Hansen’s departure, Steiner discovered that the conduit was cut to improper lengths and not properly threaded. Smithback claims that he learned on Thursday that, in preparing a particular component, Hansen was guilty of im- improper use. He allegedly broke most of the drill bits T & C had at the site. Smithback claims that he personally ob- served Hansen reject proper practice by using a hammer to bang a piece of pipe into a clamp on a ‘‘rigid 300 mule ma- chine.’’ In addition to the foregoing, Smithback states that: Throughout the day on Wednesday I did notice that he was speaking with people an extraordinary large amount of time. He tended to have coffee with the [T & C] crew and then coffee with the mill crew and he would talk to the guys and in his way [of] talking his personality would be forceful enough, he would more or less make it hard to work while he was talking to you. . . . . The rest of the guys were upset with the amount of productivity they had gotten done too, meaning Randy and Tom, because Mike was not present. They were both upset saying, ‘‘Man, we should have been farther than this, we just can’t get anything done. Everything Mick cuts he cuts crooked.’’ They had to recut, rebend, redo, most everything he had done and—okay, he was talking Wednesday morning when I came in and Randy Reinders believe asked me a question about . . . how we were going to do it . . . and we were discussing what was to be done . . . and Mick came storming up and yelled at me ‘‘I thought we made it perfectly clear that I’m in charge of this group and that if you want to talk to anybody who’s working, Randy or Tom, I had to talk through Mick,’’ I could not talk to the guys on the crew. Smithback summed up by stating: On Wednesday, [Hansen’s] performance was negligible, didn’t really do much of anything but talk to people and disappear from the immediate site . . . for periods of time. Steiner was pretty much in tune with Smithback in criticiz- ing Hansen’s performance on Wednesday. He avers that he, Reinders, and Hansen were installing struts, but that Hansen did not get a lot done, because he was talking to them about the Union. This, according to Steiner was irritating, distract- ing them from performing while listening to Hansen. Steiner also testified to another occasion when Hansen delayed his response to a request for help because engrossed in conversa- tion with Boise Cascade employees. In broader terms, Steiner explained: He wasn’t there most of the time on Wednesday, I wouldn’t say most of the time, but he wasn’t there a lot of times, he was either going to the bathroom—in fact one time Randy [Reinders] had gone to the bath- room and came back and I had to ask him if he had seen Malcolm and he said ‘‘no.’’ And then we were waiting and waiting for him to com[e] back and then he came back and I guess he was talking to somebody from another . . . [contractor] or something like that. Steiner also testified that on Wednesday morning, Smithback was apprised of Hansen’s having broken drill bits, and there- fore, in addition to his talking about the Union, and his ab- sence from the work area, Smithback was alerted to specific allegations that would plainly demonstrate Hansen’s faulty workmanship. Reinders was also called to comment on Hansen’s per- formance on Wednesday. Like Steiner, he accused Hansen of sitting around talking a lot that day with employees of Boise Cascade and other contractors on the job. His summary of this observation shows a remarkable resemblance to the testi- mony of Steiner: On Wednesday, [Hansen’s] performance was negligible, didn’t really do much of anything but talk to people and disappear from the immediate site . . . for periods of time. The subject of these conversations, according to Reinders, was union. Moreover, their disruptive effects was suggested by Reinders’ testimony that he had to beckon Hansen to re- turn to assist other members of the crew, and according to Reinders, Hansen performed work-related tasks only about 5 hours that day. He claims that he reported this, including the fact that unionization was among the topics, to Smithback, who attempted to correct Hansen merely by telling him ‘‘he’d like to see a little more work and less talk.’’54 Ac- cording to Reinders, nothing else was said by Smithback. Reinders would broaden the allegations of broken tools and parts to include Hansen’s culpability in connection with the disabling of the ‘‘300 threading machine.’’ Thus, Reinders testified that on Wednesday, Hansen was operating the 300 threading machine, when it became disabled. The damage to the machine caused misalignment of the teeth, which cut threading into the pipe. According to Smithback, on that very day, he personally observed Hansen hammering the jaws of the machine tight, instead of making the adjust- ment by hand.55 This allegedly caused improper threading by tearing metal chunks from the machine, again causing re- work. Reinders admits that Hansen fixed the machine him- self, an effort which took a considerable amount of time.56 1273 TOWN & COUNTRY ELECTRIC proper spacing of pipe connectors while cutting pipe of such erratic lengths as to require that some be redone. This went unmentioned in his diary for that day. Furthermore, it is my understanding from Smithback’s testimony that this dereliction, if true, would not have been discovered until after Hansen’s termination. 57 The Respondent asserts that because Smithback had been told by Hansen, following the inspectors’ visit that Hansen was in charge, Smithback did not discuss these deficiencies with Hansen. However, this so-called ‘‘licensing problem’’ did not prevent Smithback from admonishing Hansen to work more and talk less. Nor would this excuse his failure to list in the foreman’s diary, the litany of other, more major offenses, which according to T & C, bor- dered on willful sabotage. 58 The access to Boise Cascade was under interdict of union pick- ets, who apparently were protesting the presence of another non- union contractor, B.E. & K. Construction. The latter was engaged in new construction at that site. 59 As always, Smithback denied that he made any statement limit- ing union activity. However, he admits that at the time, Hansen told him ‘‘right then and there’’ that he had no intention of stopping talk- ing union on the jobsite, while inquiring as to who told Smithback that he could not do so on Boise-Cascade property. Here again, the question emerges as to whether Hansen would have concocted or as- sumed such a constraint, while communicating both to Sager and Smithback that it would be ignored, if not instructed to refrain from union activity. In Smithback’s case this declaration is even more cu- rious, considering Smithback’s sworn testimony that he had never mentioned to Hansen that the Union could not be discussed. 60 Sager does not deny that this phone call was initiated by Han- sen. While he denied making a bribery offer, he did not contradict Hansen’s testimony that the matter was raised. 61 Smithback offered to take Hansen to the shoe store on three sep- arate occasions. The first time the store was closed, the second, Smithback did not show up on the lunchbreak as he had promised, and the third time, on Thursday, the day of termination, the shoes were actually purchased. It is noted in this regard that Hansen was not permitted to drive his vehicle to and from the Boise-Cascade jobsite and therefore was dependent on Smithback for transportation during normal business hours. 62 According to Hansen, he had his hat off once on the entire job, and that was while having coffee, indoors at the desk of Everett Hall, and in presence of Denny Moran, both employees of Boise Cascade, who were also hatless. 63 Hansen testified that he never possessed authorization cards on this jobsite. T & C’s posthearing brief includes a representation that on Wednesday, Steiner and Reinders reported their observations concerning Hansen’s performance to Smithback. In his log for that day, Smithback simply stated: Malcolm Hansen is a prolific talker. I wish I could channel the energy he puts into talking into productive work. All of his talking is slowing down the job.57 Sager testified that he believed that on Wednesday, Sep- tember 13, he called Buelow to report that Hansen was being evaluated for productivity and safety violations. Buelow testi- fied that the only reason given him concerning termination of Hansen was T & C’s inability to use Ameristaff or a tem- porary contractor. In any event of major concern, is the fact that Sager himself does not list faulty workmanship as among Hansen’s alleged failings, an omission which consist- ently reemerges in documentation, and reasons expressed by Sager and Defferding for Hansen’s demise. Thursday, September 14. Hansen’s final workday was highlighted by two incidents, the first occurring during the ride to work that morning, and the second during the noon- time break. Several 8(a)(1) allegations are imputed to Smithback during these episodes, and an assertion by T & C that Hansen had caused ‘‘disharmony’’ within the crew, an important link in reconstructing the motive for the termi- nation also appears to have found its genesis that day. Hansen’s union activity on Thursday opened that morning at the plant gates when Smithback’s vehicle was confronted by pickets.58 Hansen emerged from the truck to inform the pickets that he was crossing only to further union interests by organizing. Afterwards, as they entered the premises, Hansen claims that Smithback stated that he didn’t want any more union talk, also inquiring if Hansen had thought over the offer to ‘‘jump Ship.’’ When Hansen asked how much would be involved, Smithback referred him to Sager.59 It is undisputed that Hansen did call Sager. At this time, he claims to have informed Sager of Smithback’s sellout in- quiry. Sager denied any interest in giving anything to per- suade Hansen to abandon organization activity.60 Sager then switched topics, turning to reports about Hansen’s job per- formance. Sager charged that Hansen (1) refused to wear safety shoes,61 (2) worked without his hardhat,62 and (3) had a production problem. Hansen, who had not previously been criticized, reacted, ‘‘that’s Bullshit,’’ arguing that Smithback was only concerned about union activity. Sager said he would call Hansen back that evening after discussing the sit- uation with Defferding. However, according to Hansen, Sager again instructed Hansen to refrain from union activity. During the noon recess, Hansen sought to convince the crew as to the merits of union organization. He avers that he then suggested that Bob Jensen, the business agent from Local 294, be contacted with the further observation that, if an election petition were filed, the men could be in the Union by Christmas. Smithback, according to Hansen, jumped up, and in the presence of Grow, Steiner, and Reinders attempted to silence Hansen, again stating that he did not want Hansen talking to the men about the Union on the road, at the cabin, or on the job. Hansen then replied that he thought it would be good if Jensen came out and ‘‘we’d have a little meeting and petition for an election.’’ Grow said that the meeting would be held at the bottom of the lake, asking Hansen if he had good anchors. Smithback relates that just prior to this noontime meeting Reinders and Steiner were complaining at the means used by Hansen in soliciting them to sign with the Union.63 He de- scribed Reinders as so upset, he had packed his bags, threat- ening to leave the project. Grow, who had just returned was so upset he was shaking, and as Hansen continued to talk to him about the Union, Grow asked what it would take for Hansen to drop the Union and come over to T & C. Hansen, according to Smithback, continued pushing ‘‘little white cards for them to sign.’’ The men reacted: ‘‘we’re just not interested in the union.’’ Grow related that when Hansen brought out the cards, he rebuffed: ‘‘you don’t understand, I’m not interested, can’t you get that through your head.’’ Steiner and Reinders chimed in that Grow was speaking for them as well. Steiner confirmed that Hansen ‘‘just kept on going.’’ At this juncture, Hansen allegedly stated, ‘‘No, I will not stop talking bout the union.’’ Grow testified, with support from Smithback, Reinders, and Steiner that he then 1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64 Reinders justified his reaction by describing an experience in which he was roughed up when he declined to join a union during an organization campaign in California. Reinders admits that he pre- viously mentioned this experience to Hansen, who indicated that his people ‘‘weren’t that way, they didn’t beat up on people and . . . it was his policy to be up front and honest and they are not violent people.’’ Despite this, and although Hansen had engaged in no unto- ward conduct on his own, Reinders testified that he was suspicious as to what he might do. However, later that afternoon, having been calmed down by Smithback, Reinders testified that he called on Hansen to tell him that he was the best organizer ‘‘I’ve ever come up against.’’ Hansen replied that there was no hard feelings against any of the crew, and that they were ‘‘some great guys.’’ Reinders also expressed that Hansen had a lot of guts staying in the cabin with the others after announcing he was a union organizer. 65 Reinder’s edginess about Boise Cascade might well have been influenced by factors totally unrelated to unionization or Hansen. A young man of 25, he had been married only 7 months. He had an infant daughter. He received only 2 days’ notice of his Boise-Cas- cade assignment, a 10-hour drive from his home in Oshkosh. This was his first job for T & C outside Wisconsin, and in the past, he had routinely commuted to projects spending nights at home. Admit- tedly, his wife was not thrilled with this development. 66 Reinders, Steiner, and possibly Mike Grow were also present. 67 Smithback admits that Hansen accused him of lying on the pro- ductivity question, demanding that he call Sager back immediately to straighten out the issue. Smithback claims that he argued back that his criticism was valid and there was nothing to straighten out. Smithback does not aver that Hansen was ever informed of the other alleged discrepancies in his job performance. 68 Sager denied having received any such report. He could not re- call whether Smithback had told him that Hansen’s productivity problem was limited to the above incident. asked Hansen why he doesn’t give up on the Union and come over to T & C. Against, this background of resistance, according to T & C, Hansen sat back, quietly, stating ‘‘I’ve got an idea, let’s take a vote right now.’’ At this point, because Reinders was upset, Smithback intervened, admittedly stating ‘‘Hey guys, before you answer that, I would really rather that you talk about something else, fishing or something.’’ Nonetheless, Hansen suggested that the men take a vote, whereupon Smithback stated, ‘‘I’d rather we not take a vote.’’ At that point, the conversation ended. However, as Steiner testified, Reinders grew nervous. He left to call his wife, a habit he developed when stressed. According to Smithback, after 20 minutes, Reinders returned telling Smithback that ‘‘if this thing is not settled today, I’m going home tonight.’’ Reinders testified that the was upset to the point of vio- lence in consequence of Hansen’s actions during the lunch- time incident. He described the provocation as follows: We were trying to get work done and he kept bring it [the Union] up and it didn’t stop and we were sitting there eating lunch and the feeling that I got was like he sorta felt like he was losing his battle organizing us because no matter how many times he asked us, we’d tell him no. We’re not interested. We’d tell him that individually even as a group when we were all there, we’d tell him ‘‘no,’’ but he just kept at it and kept at it. . . . . And while we were sitting there at lunch, Malcolm was sitting . . . directly across from me and he had a way of starting these stories no matter if it was about his mother or his father or his friends and it would end up as a reason why we should join the union. . . . . And at lunch it was like he was grasping for straws. We’re sitting . . . and he’s pulling stuff out of his wal- let, he’s got cards you know, why don’t you take a look at this, it’s a card to sign you up for the union . . . he had a picture card . . . referring to him as a union organizer. And he’s pulling out all these receipts for union dues . . . and he just kept—why don’t you look at it, why don’t you take a look at it. If you want, tonight we’ll go down to the Flame and see the woman dancers, have a few beers, I got my friend, he’ll come up and we’ll get you signed up right now. Reinders claims that he had ‘‘enough of his pushing informa- tion on me.’’ In fact, Reinders was provoked to the point of being ready to ‘‘rap . . . [Hansen] right up side the head,’’ thus, freely admitting that he was ready to punch Hansen be- cause of his repetitious efforts to solicit on behalf of the Union.64 As others had testified, Reinders called his wife, telling her, ‘‘if things didn’t improve real quick, I was com- ing home. . . . I wasn’t going to put up with it anymore.’’65 After the noontime incident, Sager’s earlier criticism of Hansen provoked a confrontation between Hansen and Smithback. Thus, in the presence possibly of Denny Moran and Everett Hall, both employed by Boise Cascade,66 Hansen relates that the following ensued: I said to Rod, ‘‘I understand you are not satisfied with my work.’’ I said to Denny Moran and Everett Hall, ‘‘Are you satisfied with my work?’’ [They replied] ‘‘Oh we’re satisfied. We’re satisfied with all you peo- ple’s work.’’ Smithback said, ‘‘ Well, you don’t have to worry about [it] if they’re satisfied. It’s me, and I was only dissatisfied on Tuesday morning. According to Hansen, Smithback used that occasion once more to instruct him not to talk ‘‘about the union or anything else.’’67 Smithback, according to Hansen, backed off, immediately telephoning Sager stating, ‘‘Ron, that was bullshit about Mickey’s production. . . Steiner and Reinders were setting the pace and he was moving the scaffolding for them and handing out material.’’68 However, Hansen was then called to the phone, whereupon Sager instructed him to call Buelow over at Ameristaff. He did, with Buelow, stating as follows: Mickey . . . we got a little flapdo. The State Board of Electricity won’t let me hire people from Minnesota to work as an electrician because we haven’t got a license so I guess whatever contract I have with you has been done. When Hansen inquired as to whether T & C would pick him up on its payroll, Buelow told him to call Sager. Hansen then called Sager, asking if he would be working directly for T & C. He was told ‘‘absolutely not.’’ Hansen claims that he was never given any reason for T & C’s re- fusal to hire him, a fact or facts, which Hansen states remain 1275 TOWN & COUNTRY ELECTRIC 69 The fact that Hansen took this job to further organizational in- terests is of no comfort to T & C. Hansen was a rank-and-file union member, who served that body in no official capacity. From all ap- pearances, he was dependent financially on employment as a jour- neyman electrician in the construction industry. The fact that, in con- nection with his employment at the Boise-Cascade site, he was reim- bursed by the Union for wage and benefit differentials does not place him in the category of the paid union organizer whose eligi- bility for a Board remedy was considered in H. B. Zachry Co., 289 NLRB 838 (1988), enf. denied 886 F.2d 70 (4th Cir. 1989). Thus, that case is plainly distinguishable, and Hansen’s intention to orga- nize was not incompatible with his basic employment needs and ob- jectives and did not debar him from statutory protection. See, e.g., Circo Resorts, 244 NLRB 880, 887 (1979), enfd. as modified 646 F.2d 403 (9th Cir. 1981). 70 In this light, it is understandable that Buelow, on being informed of Ameristaff’s termination, instinctively went to the trouble of pre- paring paper work facilitating Hansen’s transfer to the payroll of T & C. 71 T & C observes that it had never retained an agency employee on its payroll after a mere 3 days’ employment. However, it was previously unaware of Minnesota licensing constraints and there is no evidence that T & C was ever before in a position where continu- ation of a project depended on such action. 72 Testimony on behalf of T & C that union affiliation was a mat- ter of no concern to the interviewers was so out of comport with economic realities as to raise question as to what else the defense might expect me to believe. This reaction was hardly allayed by the observation by T & C’s attorney that ‘‘T & C’s only concern with an applicant’s union membership was that the applicant might be fined for coming to work for T & C.’’ 73 The claim of discrimination is bolstered by Hansen’s testimony that the effort to discourage his union involvement was the subject of a variety of independent 8(a)(1) violations. Thus, he testified that Smithback repeatedly stated that he could not engage in union activ- ity anywhere, and threatened termination if he did so. Smithback, with corroboration from the T & C employees, denied that this was true. In fact he denied ever mentioning the Union in his attempts to curtail Hansen’s loquaciousness. This despite, an awareness that the other crew members had told Hansen during breaks that they did not want to discuss the Union, and his admission to a strong feeling that Hansen was wrong in continually pushing the Union on them in these circumstances. Hansen is preferred over claims that Smithback resisted the temptation of bringing Hansen under control. Based on Hansen’s testimony, I find that Smithback, on his own, at- tempted unlawfully to interdict Hansen’s union activity in these par- ticulars, but also inquired as to whether Hansen could be bribed to cease his organizational efforts. Yet, at the same time, I did not be- lieve Hansen’s attempts to implicate Sager in a prohibition on union activity. Thus, Hansen testified that in two, separate telephone con- versations with Sager, the latter instructed him not to talk about the Union. Sager denied having made the statements. In context, it was unlikely that Sager would have made these remarks, considering what was known about Hansen at the time of his hire, and after he had announced organization as his goal. I credit Sager, and shall dis- miss the 8(a)(1) allegation involved. 74 Steiner, an apprentice, and Reinders, a journeyman, who could not qualify to take the Minnesota licensing exam because for lack of creditable experience, laid the foundation for the attack on Han- sen’s workmanship. Hansen is an experienced journeyman with many years in the trade. His employment record does not suggest either a lack of competence or that he was prone to be inefficient. In my opinion, where possible, Hansen provided well reasoned ex- planation as to the erroneous nature of assumptions underlying the accusations of these young men, still in their twenties. My mistrust of Steiner and Reinders was sufficiently deep as to warrant rejection of their testimony in areas which were totally subjective and incapa- ble of refutation by Hansen, and for that reason, beyond his ability to register clear and straightforward denials. unknown to him. Sager disputes this, but claims to have de- scribed unimproved ‘‘low productivity’’ as the sole cause. c. Analysis The issue here is limited to examination of T & C’s grounds for refusing to retain Hansen on its payroll.69 T & C’s termination of its agency contract with Ameristaff, was impelled by Minnesota law, and was plainly legitimate. However, the purity of motive underlying this transaction did not carry over, ipso facto, to justify the refusal by T & C to employ Hansen on a direct basis. As of September 14, T & C still could not operate at Boise Cascade unless its direct payroll included a locally licensed electrician.70 Moreover, although Sager testified that temporary agency employees are made permanent only 5 to 10 percent of the time,71 common sense dictates that the temporary will always be retained if he is available, competent, needed on an ongoing job com- mitment, and where agency commissions considered against other factors will not make that an unprofitable decision. Thus, for purposes of this proceeding the motive underlying its failure to utilize Hansen is determinative of the 8(a)(3) and (1) allegations. Economic reality neutralizes any debate concerning T & C’s posture with respect to union organization. As a merit shop employer, it is dedicated to a method of operation in the highly competitive construction industry which is not compatible with wage and benefit standards sanctioned by affiliated craft unions such as the IBEW.72 (C.P. Exh. 1.) There is no real dispute that on the second day of his em- ployment, Hansen announced that he was a union organizer, and persisted in organizing on behalf of that Union. On the heels of these purely verbal and noncoercive efforts, Sager testified that he became convinced that a decision had to be made on Hansen’s status when he received reports that em- ployees were offended, claiming harassment and low morale. Finally, Sager admits that, as of September 14, when T & C declined to put Hansen on its payroll, at least two licensed electricians were needed to discharge its responsibilities on the Boise-Cascade job. It, thus, appears that the elimination of Hansen took priority over the risk that the job would be shut down for lack of a licensed electrician. The foregoing is sufficient to give rise to the inference that union activity was at least part of the motive for Respondent T & C’s failure to place Hansen on its payroll, thus, in ac- cord with Wright Line, supra, placing the onus on T & C to demonstrate that this would have taken place even in the ab- sence of Section 7 activity.73 T & C’s numerous witnesses attempted to substantiate that Hansen was a poor worker, who failed to meet productivity standards, and who failed to perform in a craftsmenlike manner. Its evidentiary case was shifting, replete with contradiction, and in the end, furnished a strong suggestion that union activity played an important role in its decision not to retain Hansen. In sum, the defense is structured upon a composite of lies made possible through T & C’s access to a willing combination of highly biased witnesses. Those responsible for eliminating Hansen allegedly acted on reports from Smithback, who in large measure was de- pendent on reports from Steiner and Reinders.74 However, 1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 75 Neither Defferding, nor Sager indicated that they were aware that Hansen had abused or misused tools or equipment. Defferding assertedly received daily reports from Smithback concerning Hansen. However, his knowledge of a quality problem appears limited to a report from Smithback on Thursday morning. He claims that Smithback reported that ‘‘[Hansen’s] production went up, [but] the quality went down when we had to remove and replace most of the work that Mr. Hansen put in because of poor workmanship.’’ In this area, Sager’s testimony was vague. He avers that Smithback on Tuesday mentioned some bad cuts on a unistrut or piece of pipe. He also asserts that on Thursday morning Smithback called and ‘‘men- tioned something about some of the mistakes or some of his work specifics and I don’t recall because it wasn’t germane at the time, I think the decision had pretty much been made at that juncture.’’ On the contrary, it clearly emerges from Sager’s testimony that re- ports spawned by the subsequent lunchtime incident actually pro- duced the final judgment on Hansen. 76 On cross-examination, Sager admitted that the morale problem was a factor contributing to the decision but denied that ‘‘it was a big part of it.’’ Considering the chronology described on the face of his own testimony, I am convinced that the noontime incident was the proverbial ‘‘straw’’ that broke the ‘‘camel’s back.’’ 77 Buelow testified that it was on Wednesday morning, September 13, Sager instructed: ‘‘we could not have Mickey on the job.’’ In his words: I was informed [by Sager] that John Quinn . . . had informed them [T & C] that Malcolm could not be there on our payroll. the indictment of Hansen by Steiner and Reinders apparently lacked the attention it deserved. Thus, Smithback, according to T & C’s witnesses, was advised on Tuesday of the inci- dents involving Hansen’s responsibility for the broken band saw, the improper bending of pipe, the cutting of struts to erroneous lengths, and misconceptions about how pipe should be measured, all serious discrepancies. Smithback, who claims that, but for the licensing problem, he would have terminated Hansen that first day, executed a diary entry for that day which indicts Hansen with flawed ‘‘production,’’ but says nothing about poor quality of work. Steiner, the next day, added Hansen’s predilection to break drill bits to the list of quality infractions, reporting this as well to Smithback. The latter’s diary for that date is critical of Hansen, but sole- ly on the basis of excessive ‘‘talking.’’ No reference is made to a continuing propensity to mishandle and damage tools or to produce bad parts. The pattern continued on Thursday. Steiner and Reinders once more accused Hansen of faulty work methods on that day, yet Smithback’s diary entry did not stray from the familiar: Malcolm Hanson did improve the quantity of work he did today. Still not up to our expectations. And he still spends much time B.S.ing with mill employees and w/our employees. Smithback, while testifying under oath, possessed a clear grasp of the bad parts, tool breakage, and abuse of equipment described by Steiner and Reinders. It is difficult to under- stand why these breakdowns in Hansen’s craftsmanship were given so little attention at the time. The offenses were spe- cific. They reflected serious failures in craftsmanship. They were reported in timely fashion. Yet, the objective trail does not lead to any suggestion that, by September 14, quality had become an element of T & C’s case against Hansen. Like the diary notes, higher management did not seem to dwell on the quality of Sager’s performance. Sager and Defferding concentrated on productivity, describing ‘‘dishar- mony’’ as a triggering event.75 Indeed, well after the fact, Vice President Stephenson in his letter of October 23, merely described Hansen’s work problem as ‘‘productivity.’’ (R. Exh. 5.) Surely, these management officials were conversant with industrial lexicon and that, given its ordinary meaning, a ‘‘productivity’’ problem relates to the quantity of an em- ployees work, rather than ones ability to turn out quality parts without destroying equipment. Indeed, in light of T & C’s presently, professed position that Hansen had set out de- liberately to sabotage the job, one would think that these al- leged indiscretions would occupy the centerpiece for objec- tions to Hansen’s employment. They obviously were after- thought, if not totally contrived. The testimony of Sager concerning the triggering cir- cumstances is certainly more indicative of what actually oc- curred than the testimony of Smithback, Steiner, and Reinders. He testified that on Wednesday, September 13 ‘‘I didn’t know if we were going to keep Malcolm . . . we were evaluating him for productivity and safety violations.’’ However, as I understand Sager’s testimony, it was not until September 14, that Hansen’s status came to a head. That afternoon Sager received a telephone call from Smithback who reported that because of Hansen, Reinders was ‘‘ex- tremely nervous and upset’’ and he wanted to leave the job immediately ‘‘for his own safety.’’ Reinders also mentioned that he was fed up ‘‘with all the talk’’ and that there was a real problem with morale on the job. It is apparent that Smithback’s report sprung from Reinders’ reaction to the prounion overtures made by Hansen during the noon break. In consequence, Sager apparently sought out Defferding, ad- vising as follows: [W]e’ve got to make a decision here, the guy is affect- ing the morale of our people, I know that a couple of our people were upset and one extremely agitated, he was getting a short fuse and one of the guys felt intimi- dated and wanted to leave the job site, I said, ‘‘listen, I don’t care if we aren’t working at that jobsite, I’ve got to look out for our personnel, we can’t do that to them.’’ Sager did not testify that, in that conversation, any other grounds for termination were mentioned to Defferding.76 In consequence, Sager testified that he called Smithback, stating ‘‘Hey, a decision has been made that we are going to let Malcolm Hansen go from Ameristaff. . . . I’m going to call Steve Buelow and tell him the situation and have Malcolm call Steve Buelow . . . in the afternoon.’’ Smithback was given the ‘‘OK’’ to wait till after work be- fore informing Hansen. In explaining the discharge to Buelow, according to Sager’s testimony the harassment issue went unmentioned. He claims to have told Buelow that, ‘‘the guy’s really caus- ing problems, he’s wandering around . . . we have low pro- ductivity from him . . . he just got his safety shoes today. . . . [H]e’s just not an employee or potential em- ployee that we would look to be hiring.’’ According to Sager, Buelow stated that rather than create issues about pro- ductivity, he would simply tell Hansen that ‘‘temporaries’’ had been barred from the job.77 1277 TOWN & COUNTRY ELECTRIC With this information, Buelow claims that he instructed his assist- ant ‘‘to cut an invoice’’ permanently placing Hansen on T & C’s payroll. This was countermanded later that afternoon, when Sager in- formed that T & C at no time indicated that they would pick up Hansen, and that they would not do so in that they had received bad reports concerning his productivity, that a man with less experience could bend pipe quicker, and that Hansen also had violated safety policies. It is noted that John Quinn testified that his conference with Stephenson took place on Monday, September 11. While T & C’s good faith, in complying with obligations to the State of Minnesota is of no relevance here, the timing described by Buelow is more consistent with Quinn’s uncontested testimony. 78 Although Defferding received Smithback’s ‘‘foreman diaries,’’ they were not available to him until September 15, after the termi- nation. 79 In a weak attempt to associate the fears of the men with vio- lence apparently addressed to B.E. & K. at the site, Smithback ac- knowledged that Hansen had told the men that his Union had noth- ing to do with the violence, but he could not speak for the unions engaged in the B.E. & K. dispute. At p. 89 of its posthearing brief, counsel for T & C appears to have been led by imagination in argu- ing that ‘‘Hansen did everything he could to make Reinders believe that the past [union violence] was repeating itself . . .’’ and further that ‘‘Hansen had done everything he could to play on the fears of the T & C crew and to increase the pressure on them.’’ If anything, these assertions are refuted, rather than supported by, this record. Sager, on cross-examination acknowledged that the safety shoes and hard hat issues were not the reason for terminating Ameristaff on this job, and did not contribute to T & C’s decision not to place Hansen on its payroll. The morale prob- lem that Hansen was causing on the job was admitted to be a ‘‘part of it.’’ According, to Sager the other factor was Han- sen’s productivity, details of which he could recall. Sager at no time made reference to the alleged failure of Hansen to perform in a workmanlike manner. Defferding knew the difference between poor quality and poor productivity. Yet, in describing his reasons for the ter- mination, he did not zero in on the bad parts and attempted to deflect the disharmony issue. His position concerning Hansen was based entirely on daily telephonic reports from Smithback.78 The first, actually, was late Tuesday afternoon, September 12. Smithback called, complaining that he was disappointed with Hansen’s output, his apparent disinterest in performing ‘‘physical labor’’ and his appearance without safety shoes. On Wednesday, September 13, Smithback called again, complaining that Hansen was not helping with production and was missing from the job even more than the previous day, going so far as to without explanation, leave the work- site for 45 minutes to an hour. Smithback again allegedly mentioned that Hansen had been told to get his steeltoed shoes, but had not done so. The puzzling aspect of Defferding’s account arises in con- junction with a report from Smithback accusing Hansen of disrupting the crew. In this connection, the phrase ‘‘dishar- mony to the crew,’’ is given a different meaning by Defferding than Sager. Thus, it will be recalled that Sager at- tributed such a condition to Reinders’ complaints about Han- sen’s persistent and aggressive attempts to foist the Union on coworkers. In contrast, Defferding initially described Han- sen’s wandering as the cause of this disharmony. On cross- examination, when Defferding was again given the oppor- tunity to describe how Hansen created disharmony, he used the term to describe Hansen’s constant preference for talk over work. Defferding, of course, denied knowledge as to the content or subject matter covered by Hansen on those occa- sions. Ultimately, Defferding admitted that later on Thursday, Smithback called back, recommending that Hansen be re- moved because ‘‘it was no longer possible to run a harmo- nious crew and still have Mr. Hansen on that crew.’’ Smithback’s reference to disharmony was far narrower than Defferding’s definition. He does not suggest that it re- lated to any conduct other than union activity. Indeed, ac- cording to Smithback, Defferding knew that the term was used to explain Hansen’s union activity during nonworking time. Thus, Smithback testified that Hansen, on Thursday, was beginning to disrupt the crew ‘‘pretty heavily’’ while creating ‘‘disharmony.’’ In this connection, he specifically reported the lunchtime incident, described above, to Defferding, in terms evident in the following colloquy with the undersigned: JUDGE HARMATZ: Excuse me a minute, did you dis- cuss this incident with Mr. Defferding, this lunch time on Thursday incident? THE WITNESS: Yes. JUDGE HARMATZ: Did you tell him the scenario that you described to us, did you tell him that people were upset? THE WITNESS: Yeah, told him people were upset. JUDGE HARMATZ: Did you tell him why? THE WITNESS: Yeah, I told him Randy was ready to fight or run. JUDGE HARMATZ: And let me just go over that one more time for emphasis. The reason that these people were upset is because Mr. Hansen was constantly push- ing the union on them? THE WITNESS: Correct. JUDGE HARMATZ: And you reported that to Mr. Defferding? THE WITNESS: Denny, yes. JUDGE HARMATZ: And you couldn’t be mistaken about that? THE WITNESS: No. It was my distinct impression that the term ‘‘disharmony’’ more appropriately fit union activity, the subject of Reinders complaints, than the variant subjects that Defferding would place under that umbrella. In this light, the attempt to rede- fine, diminish, or cast aside the alleged disharmony is under- standable. Sager had previously testified that ‘‘disharmony’’ was a factor in T & C’s decision. Hansen’s termination could not be upheld if provoked out of T & C’s desire to appease coworkers who might have been offended by the former’s at- tempts to organize them. Although Smithback claimed that Hansen was ‘‘hounding and badgering’’ the men, the testi- mony he offers simply shows that Hansen repeatedly solic- ited their support and they repeatedly declined. He was alone, the others unified. In this context, if management sought to restore harmony, statutory guarantees would re- quire counselling those disturbed by, before condoning ad- verse action against, the union protagonist.79 In sum, the defense is laden with several shifts. First the effort to demean Hansen on the quality of his work is unconfirmed by the objective evidence, and though these al- legations against Hansen reflect a consistent pattern of in- 1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 80 A replacement was obtained, but not until after the decision to eliminate Hansen. Sager testified that, he was not involved in the re- cruitment, but that a licensed electrician, Fred Ensign, was hired after the Hansen termination on Friday, September 15, thus, allowing the job to progress. Defferding was instrumental in the hiring of En- sign. On Thursday, September 14, Defferding claims to have tele- phoned Guy Martin of B.E. & K., stating, ‘‘we were to be releasing through Ameristaff . . . our licensed . . . person and that we would be requiring an electrician for a short term basis because we had some other people coming on, that we need somebody . . . with a license.’’ B.E. & K. obliged and effective Friday, September 15, En- sign was transferred from B.E. & K.’s payroll to that of T & C. En- sign was hired sight unseen, solely upon B.E. & K.’s recommenda- tion in this regard, and apparently without independent basis for evaluation. 81 Local 343, like Local 292, has no jurisdiction over International Falls. Its geographic sphere consists 39 counties in southern and western Minnesota. competence, they were given feint attention by Sager, Defferding, or Stephenson in describing the grounds for re- jecting Hansen. This discrepancy is paralleled by the events of Thursday, September 14. I am convinced that on that day, T & C personnel at the jobsite and at headquarters were pre- occupied with the question of disharmony created by Han- sen’s persistent efforts to push the Union. Sager’s testimony suggests that this was a triggering event, while Defferding would engage in a conscientious attempt, alternatively, to disguise and then, steer away from this factor. In my opinion, it was the noontime incident that caused the breakdown in T & C’s will to endure Hansen. Thus, Sager testified that, because of job indiscretions, he would have acted in terminating Hansen a day or a day and a half sooner were it not for the need for Hansen’s license. Smithback, though confessing to a limited opportunity to ob- serve Hansen on Tuesday, September 12, claims that he would have terminated him at the end of that day for similar reasons. As matter’s turned out, Hansen was eliminated on Thursday, September 14, when nothing had changed—T & C still had no assurance of replacement, and the licensing problem persisted.80 Indeed, the urgency to remove Hansen is even more suspect when one considers Defferding’s testi- mony that, as of September 14, T & C had other licensed electricians lined up to report on this job. Apparently, T & C could not wait for the arrival of these replacements. More- over, even with the hiring of replacement Ensign, Sager testi- fied that the need for qualified journeyman did not end, for he relates that in the days that followed Hansen’s termi- nation, T & C did not ‘‘know if we were going to be able to man the job with licensed electricians.’’ During the fol- lowing week, as he relates: ‘‘The President of our Company was making the decision . . . whether or not we were going to continue at Boise Cascade or back out entirely.’’ In my opinion, the defense in Hansen’s case was struc- tured on a thinly veiled attempt to mislead as to the true rea- sons for T & C’s action, and, since lacking in credible sup- port, fails to rebut the inference of unlawful motivation. Moreover, Sager’s own testimony, and the efforts by Defferding to shy away from the noontime encounter, strong- ly suggests that the outrage of coworkers concerning Han- sen’s protected activity during that incident was the pivotal event leading to his termination. This view of the evidence actually bolsters the General Counsel’s position, and, in any event, it is plain that T & C has failed to substantiate by credible evidence that Hansen would have been removed even if he had not engaged in organizational activity. It is concluded that the Respondent T & C violated Section 8(a)(3) and (1) of the Act in this respect. 4. The individual refusals to hire a. Preliminary statement The third area of discrimination pertains to alleged illegal refusals to hire in connection with telephonic expressions of employment interest by Local 343 members Charles Evans on September 13, and Roger Kolling, on September 20.81 Neither appeared at the Embassy Suites. The separate routes taken by Kolling and Evans did not lead to employment. Independent 8(a)(1) violations are also attributed to Re- spondent in this regard. They include alleged interrogation of Kolling by Sager and Defferding, and a threat by Sager to Evans that he would have to resign from the Union if hired. b. Richard Kolling Kolling, since 1986 and during the events in issue here, served as a full-time Local 343 business representative. He denies that union sources led him to apply for work with T & C. Instead, he claims that on September 18, he received a job lead from the Minnesota State Employment Service. (G.C. Exh. 16.) He denies any prior awareness of T & C. On September 20, he acted on the referral by calling T & C. He spoke to Sager. Kolling relates that Sager inquired as to his union status, but that Kolling denied any affiliation with unions, indicating that he was not a union member, in- stead stating that he had operated as an ‘‘open shop’’ con- tractor in Rochester, Minnesota. After discussing the scope of Kolling’s operation as a contractor, Sager put Defferding on the phone. Defferding also inquired as to Kolling’s union status, with the latter again entering a denial, while ulti- mately stating: ‘‘why all the . . . union questions . . . be- cause I was really . . . trying to get a job.’’ Kolling was asked by Defferding if he would accept work in International Falls, while indicating that the rate was $15 hourly, with travel allowances. Defferding stated that he would mail out an application after Kolling furnished a resume. Kolling ad- vised that he would do so. Sager acknowledged that he participated in such a con- versation with Kolling. The latter identified himself as an electrical contractor. Concerning Kolling, Sager testified, ‘‘I remember asking him what kind of contractor he was . . . was he a residential, commercial or industrial, licenses that he held, was he a union contractor or a non-union contractor, does he work with either . . . because we subcontract work out . . . to subcontractors for different projects.’’ Kolling said he was just looking for temporary work because things were slow at the time. They then discussed the Boise-Cas- cade job, whereupon Sager put Defferding on the phone. Defferding testified that they first discussed Kolling’s in- dustrial experience. Later, when union affiliation arose, Defferding assertedly stated that T & C had ‘‘no problems with that.’’ Kolling was informed of T & C’s interest, and 1279 TOWN & COUNTRY ELECTRIC 82 Kolling failed to relate that he ever submitted the resume. Ac- cording to his own testimony, Defferding told him to do so before an application would be forwarded. 83 Kolling had two conversations with T & C representatives. He attempted to tape both. He claims that the tape of the first did not take. In any event, no tape or transcript of a tape was offered in evi- dence. 84 Kolling’s name appears on R. Exh. 11, a computer list of all sent applications. The document indicates that his application was mailed on September 22. 85 Kolling was not a persuasive witness and his uncorroborated tes- timony was an unsuitable basis for findings prejudicial to T & C. It is true that Sager admittedly asked Kolling if he had operated as a union contractor. However, such an inquiry, when addressed to an individual who identifies himself as an employing enterprise, rather than an employee, does not strike as inherently coercive. No ration- ale which reasonably would support a finding of illegality in this context has been offered. The 8(a)(1) allegations implicating Defferding and Sager in proscribed interrogation are dismissed. 86 The complaint, over denial, alleges that ‘‘Lori’’ is an agent of Ameristaff. It further alleges that the Respondents violated Sec. 8(a)(1) by her interrogation of Evans during this phone conversation. Once more, I am left to my own devices, for the General Counsel has failed to brief either issue. On the merits, the task is rudi- mentary, for Evans’ account was uncontradicted and there is every reason to believe that this occurred. On the question of agency, Buelow acknowledged that he was assisted by someone named Lori, and that she was relegated to the task of answering the phone, and performing the initial screening. This latter function, included inquir- ies concerning union status. In this light, the testimony of Evans completes the circumstantial chain indicating that he and Buelow were describing the same individual, and that she was an agent whose conduct was binding on Respondent Ameristaff. In context of her other remarks, this interrogation of a job prospect was clearly coercive and violative of Sec. 8(a)(1). Moreover, the unfair labor practice, having been committed within the spectrum of operations for which Ameristaff had been retained by T & C, is deemed bind- ing on the latter. was asked if he had a resume. He said he did, whereupon Defferding requested that he forward it immediately.82 Kolling never did so. According to the General Counsel, Kolling’s failure to submit a resume did not defeat the alle- gation that T & C unlawfully declined to hire him. Accord- ing to Kolling, he soon realized that any resume would in- clude references betraying his denials of union affiliation. For this reason, on September 21, he called Sager to disclose his union ties. Sager indicated that this was not a concern. Kolling then indicated that he wished to continue the process by completing an application. According to Kolling, though Sager agreed to forward the application, it was never re- ceived. Sager admits to this conversation, but claims that he suspected that Kolling was trying to get something that he shouldn’t so Sager was ‘‘on his guard.’’ During the con- versation, Kolling informed Sager that the September 20 con- versation had been taped and that he was concerned about Sager’s questions concerning the Union.83 He claims that, because of the taping, an application was sent out to Kolling. However, to the Company’s knowledge, it was never com- pleted and returned.84 In my opinion, the General Counsel has failed in this in- stance to produce credible, prima facie evidence warranting a finding that Kolling’s failure to land a job was based on anything other than his own inaction. The probabilities sup- port the testimony of Sager,85 and I am convinced that an application was duly forwarded, but never returned. The sub- mission of a completed application was understood by all to be a critical requisite for hire, and this omission by Kolling, offered the sole, nondiscriminatory reason for his inability to secure employment. The 8(a)(3) and (1) allegations in his case shall be dismissed. c. Charles Evans In September 1989, Evans was an unemployed licensed electrician and a member of Local 343. He was contacted by his business representative and told to call the 414 telephone number which corresponded to that appearing in the Septem- ber 11 edition of the Minneapolis Star Tribune (G.C. Exh. 4.) On September 13, he did so, speaking to Lorrie of Ameristaff. The latter questioned him as to qualifications and work history, and then asked if he were union or nonunion. He declared himself as union, inquiring as to why she would ask. Lorrie allegedly said, ‘‘We have to know whether you are union or nonunion because we don’t put union people on nonunion jobs.’’86 According to Evans, she then said she would have Buelow contact him later in the week. However, on September 13, Evans telephoned Lorrie again, questioning her once more as to the interest in his union affiliation. She reiterated her explanation, but inquired as to whether Evans would work nonunion. Evans signified that he would. Evans testified that he never received the promised phone call from Buelow. However, Buelow relates that when Evans called Lorrie the second time, the call was transferred to him. Evans allegedly complained that in his earlier conversation, Lorrie had asked him illegal questions about his union affili- ation, observing further that this was totally unnecessary. Buelow claims that he explained that Ameristaff works with union and nonunion contractors, including the contractor at Boise Cascade. Evans stated that he wanted work on that project. Buelow testified that he would have a T & C official call him, because Ameristaff could not hire him for that job. Evans admits that he was subsequently contacted by Sager. The latter allegedly informed him that it was T & C’s posi- tion that ‘‘they didn’t hire any . . . union people at the job site, that if I wanted to work there, that if I wanted to work there that I would have to drop my union affiliation.’’ Evans gave no definite answer, whereupon Sager told him to give him a call if he changed his mind about accepting the job. There was no further communication between Evans, Ameristaff, and/or T & C. Sager recalled a phone conversation with Evans. He relat- ed that when he informed Evans that the job was at Boise Cascade in International Falls, Evans expressed concern at the violence he had read about in the newspapers at that site. When Sager pointed out that those reports concerned a new construction job and not the maintenance work that T & C was engaged in, Evans stated, ‘‘Well I don’t know if I’d be willing to go up there and work under those circumstances.’’ Evans was again asked if he would be willing to take the job, but Evans again replied, ‘‘I don’t know if I would or not.’’ According to Sager, he told Evans to give him a call if he ‘‘changed his mind.’’ Sager denied telling Evans that union people would not be hired at that jobsite, or that Evans would have to drop his union affiliation if he wanted to work there. 1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 87 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be On cross-examination, Evans acknowledged that he was concerned about reported violence at the Boise-Cascade site, and that Sager attempted to assuage him of this concern, while advising him at length of the precautions that had been taken to neutralize the ‘‘trouble.’’ Evans insists, however, that it was not the violence but the trouble he would face from Local 343 if he renounced union membership that dis- couraged him from accepting the job. In this light, I credit Sager and Buelow, and conclude that Evans expressed disinterest in employment at Boise Cascade, that no statements were made concerning any nonunion pol- icy or union resignations by Sager, and that T & C at no time refused him employment by reason of union affiliation. In short, in this instance the General Counsel has failed to adduce credible proof that proscribed considerations played any part whatever in Evans’ failure to obtain a job at Boise Cascade. The 8(a)(3) and (1) allegation in this respect shall be dismissed. CONCLUSIONS OF LAW 1. The Respondents, Ameristaff and T & C, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Ameristaff is the agent of Respondent T & C for the purposes of soliciting job applicants, arranging for the hire and completion of applications for those prospects, and the maintenance of payroll and employment records of those hired for Respondent T & C’s account at the Boise- Cascade jobsite. 3. Local 292 and 343 of the International Brotherhood of Electrical Workers are labor organizations within the mean- ing of Section 2(5) of the Act. 4. Respondent T & C on September 7, 1989, violated Sec- tion 8(a)(3) and (1) of the Act by refusing to interview and consider for employment the job applicants listed below be- cause of their union membership: Ken Axt Red Larson Steve Claypatch Greg Shafranski Steve Leyendecker David Hagen Robert Hallman Bob Printy Harley Barton Michael Priem 5. The Respondents, T & C and Ameristaff, on September 13, 1990, violated Section 8(a)(1) of the Act by interrogating a job applicant concerning union activity. 6. Respondent T & C, on September 13, 1990, violated Section 8(a)(1) of the Act by banning employee union activ- ity during nonworking time, and by threatening discharge for engaging in such activity. 7. Respondent T & C, on September 13, 1990, violated Section 8(a)(1) of the Act by inquiring as to what it would take to induce an employee to refrain from union activity. 8. Respondent T & C, on September 14, 1989, violated Section 8(a)(3) and (1) of the Act by refusing to retain Mal- colm Hansen because of his union activity. 9. Respondent T & C did not, since September 13, 1990, refuse to employ Charles Evans, or from September 20, 1990, refuse to hire Roger Kolling for reasons proscribed by Section 8(a)(3) and (1) of the Act. 10. Except as found in paragraphs 4, 5, 6, 7, and 8 above, the Respondents did not engage in any of the unfair labor practices set forth in the complaint. THE REMEDY Having found that Respondent T & C has engaged in cer- tain unfair labor practices, it shall be recommended that it cease and desist therefrom, and take certain affirmative ac- tion deemed necessary to effectuate the policies of the Act. It having been found that Respondent T & C, in effect, terminated Malcolm Hansen in violation of Section 8(a)(3) and (1) of the Act, it shall be recommended that it be or- dered to reinstate him to his prior position and make him whole for earnings lost by reason of the discrimination against him. Having found that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire the employees named below: Ken Axt Red Larson Steve Claypatch Greg Shafranski Steve Leyendecker David Hagen Robert Hallman Bob Printy Harley Barton Michael Priem it shall be recommended that they be offered immediate em- ployment in positions for which they have applied and are qualified, to the extent vacancies exist, and they shall be made whole for any earnings lost by reason of the discrimi- nation against them. Backpay due under the terms of this Order shall be com- puted on a quarterly basis as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and shall be reduced by net in- terim earnings, with interest computed as specified in New Horizons for the Retarded, 283 NLRB 1173 (1987). All rein- statement and backpay recommendations are subject to the procedures discussed in Dean General Contractors, 285 NLRB 573 (1987), and Haberman Construction Co., 236 NLRB 79 (1978). With respect to Respondent Ameristaff, with one excep- tion, all unfair labor practices found, occurred outside the scope of its authority. The unlawful discrimination and coer- cive conduct imputed to T & C was effected by that firm at times and under conditions where its authority was exclu- sive. Ameristaff was in no position to influence the unlawful failure at Boise Cascade to retain Hansen or the termination of interviews at the Embassy Suites. In this light, the reme- dial burden imposed on T & C should not be lightened by any form of shared relief between these parties, and to do so, in the circumstances, would penalize Ameristaff for hav- ing a business relationship with the perpetrator of unlawful conduct. Respondent Ameristaff committed a single act of unlawful interrogation. In that connection, the findings should be suffi- ciently instructive to make entry of a formal order against Ameristaff a needless exercise. The incident is remedied ade- quately through the Order recommended in the case of T & C. For this reason, and considering the nature of this singular violation, together with Ameristaff’s method of operations, no remedy shall be recommended in its case. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended87 1281 TOWN & COUNTRY ELECTRIC adopted by the Board and all objections to them shall be deemed waived for all purposes. 88 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ ORDER The Respondent, Town & Country Electric, Inc., Appleton, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating job applicants concerning their union membership. (b) Instructing employees to cease engaging in union ac- tivity during nonworking time, and threatening them with discharge if they do not comply. (c) Asking employees whether they could be bribed to re- frain from engaging in union activity. (d) Discouraging union activity by refusing to hire, termi- nating, or in any other manner discriminating against em- ployees with respect to their hours, wages, or other terms and conditions or tenure of employment. (e) In any like or related manner interfering with, coercing, or restraining employees in the exercise of the rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer immediate employment to the employees listed below in positions for which they applied and qualify or, if nonexistent, to substantially equivalent positions, and make them whole for losses sustained by reason of the discrimina- tion against them, with interest, as set forth in the remedy section of this decision: Ken Axt Red Larson Steve Claypatch Greg Shafranski Steve Leyendecker David Hagen Robert Hallman Bob Printy Harley Barton Michael Priem (b) Offer Malcolm Hansen immediate reinstatement to his former position or, if nonexistent, to a substantially equiva- lent position, and make him whole for losses sustained by reason of the discrimination against him, with interest, as set forth in the remedy section of this decision. (c) Remove from its files, delete, and expunge any and all reference to the unlawful termination of Malcolm Hansen, notifying him that said action has been taken, and that said termination will not be used against him in the future. (d) Preserve and, on request, make available to the Board and its agents for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facilities in Appleton, Wisconsin, and Inter- national Falls, Minnesota, copies of the attached notice marked ‘‘Appendix.’’88 Copies of the notice, on forms pro- vided by the Regional Director for Region 18, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customar- ily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively interrogate job applicants con- cerning their union membership or preference for union or nonunion work. WE WILL NOT instruct employees to cease engaging in union activity during nonworking time or threaten them with discharge if they do not comply. WE WILL NOT ask employees whether they could be bribed to refrain from engaging in union activity. WE WILL NOT discourage union activity by refusing to hire, terminating, or in any other manner discriminating against employees with respect to their hours, wages, or other terms and conditions or tenure of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guar- anteed them by Section 7 of the Act. WE WILL offer immediate employment to the employees listed below in positions for which they applied or, if non- existent, to substantially equivalent positions, and WE WILL make them whole for losses sustained by reason of the dis- crimination against them, with interest: Ken Axt Red Larson Steve Claypatch Greg Shafranski Steve Leyendecker David Hagen Robert Hallman Bob Printy Harley Barton Michael Priem WE WILL offer Malcolm Hansen immediate reinstatement to his former position or, if nonexistent, to a substantially equivalent position, and make him whole for losses sustained by reason of the discrimination against him, with interest. 1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL remove from our files, delete, and expunge any and all reference to the unlawful termination of Malcolm Hansen, notifying him that said action has been taken, and that said termination wlll not be used against him in the fu- ture. TOWN & COUNTRY ELECTRIC, INC.