No. 94-947-1

In the Supreme Court of the United States

OCTOBER TERM, 1994

NATIONAL LABOR RELATIONS BOARD, PETITIONER

V.

TOWN & COUNTRY ELECTRIC, INC., AND 
AMERISTAFF PERSONNEL CONTRACTORS, LTD.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD

FREDERICK L. FEINSTEIN
General Counsel

LINDA SHER
Acting Associate
General Counsel

NORTON J. COME
Deputy Associate
General Counsel

PETER WINKLER
JOHN EMAD ARBAB
Attorneys
National Labor Relations
Board
Washington, D.C. 20570
  
DREW S. DAYS, III
Solicitor General

LAWRENCE G. WALLACE
Deputy Solicitor General

PAUL A. ENGELMAYER
Assistant to the Solicitor
General
           
Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the National Labor Relations Board rea-
sonably determined that a person applying for or
holding a job with an employer that he intends to
organize, and who will be compensated by a union for
his organizational activity, is an "employee" within
the meaning of Section 2(3) of the National Labor
Relations Act (29 U.S.C. 152(3)) and therefore pro-
tected against discrimination on account of his union
activity and affiliation.

(I)

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II

   PARTIES TO THE PROCEEDINGS

 In addition to the parties listed in the caption, the
following was a party to the proceedings in the court
below :  International Brotherhood of Electrical
Workers, Local 292.

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TABLE OF CONTENTS

   Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statutory provision involved . . . . 2
Statement . . . . 2
Reasons for granting the petition . . . . 11
Conclusion . . . . 30
Appendix A . . . . 1a
Appendix B . . . . 12a

    TABLE OF AUTHORITIES

Cases:

American Hosp. Ass'n V. NLRB, 499 U.S. 606
  (1991) . . . . 15
Anthony Forest Products Co., 231 N.L.R.B. 976
  (1977) . . . . 20, 27
Bayside Enterprises, Inc. V. NLRB, 429 U.S. 298
  (1977) . . . . 12
Beth Israel Hosp. V. NLRB, 437 U.S. 483 (1978) . . . . 12
Chevron U.S.A. Inc. V. National Resources Defense
  Council, Inc., 467 U.S. 837 (1984) . . . . 12, 24
Dee Knitting Mills, Inc., 214 N.L.R.B. 1041 (1974),
  enforced mem., 538 F.2d 312 (2d Cir. 1975) . . . . 27
Edward G. Budd Manufacturing Co. v. NLRB, 138
  F.2d 86 (3d Cir. 1943), cert. denied, 321 U.S.
  778 (1944) . . . . 20
Escada (USA), Inc., 304 N.L.R.B. 845 (1991),
  enforced mem., 970 F.2d 898 (3d Cir. 1992) . . . . 27
Escada (USA) Inc. V. NLRB, 970 F.2d 898 (3d
  Cir. 1992) . . . . 9,24,27
Fall River Dyeing & Finishing Corp. V. NLRB, 482
  U.S. 27 (1987) . . . . 12, 18
George A. Hormel & Co. v. NLRB, 962 F.2d 1061 
  (D.C. Cir. 1992) . . . . 25

 (III)

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  IV

Cases--Continued:  

          Page

H.B. Zachry Co.,289 N.L.R.B. 838 (1988), enforce-
  ment denied, 886 F.2d 70 (4th Cir. 1989) . . . . 7
H.B. Zachry CO. V. NLRB, 886 F.2d 70 (4th Cir.
  1989) . . . . 9, 24, 25
Kelley V. Southern Pac. Co., 419 U.S. 318 (1974 ) . . . . 14
NLRB v. Curtin Matheson Scientific, Inc., 494 U.S.
  775 (1990) . . . . 12, 18
NLRB V. E.C. Atkins & Co. V. NLRB, 331 U.S. 398
  (1947) . . . . 13
NLRB V. Elias Brothers Big Boy, Inc., 327 F.2d
  421 (6th Cir. 1964) . . . . 9, 24
NLRB V. Erie Resistor Corp., 373 U.S. 221
  (1963) . . . . 12
NLRB V. Hearst Publications, Inc., 322 U.S. 111
  (1944) . . . . 13
NLRB V. Hendricks County Rural Electric Mem-
  bership Corp., 454 U.S. 170 (1981) . . . . 12
NLRB V. Henlopen Manufacturing Co., 599 F.2d
  26 (2d Cir. 1979) . . . . 9, 20, 23-24, 26, 27
NLRB V. Transportation Management Corp., 462
  U.S. 393 (1983) . . . . 12
NLRB V. United Food & Commercial Workers
  Union, 484 U.S. 112 (1987) . . . . 12
Nationwide Mutual Insurance Co. V. Darden, 112
S. Ct. 1344 (1992) . . . . 13
Oak Apparel, Inc., 218 N.L.R.B. 701 (1975) . . . . 15, 27
Packard Motor Car Co. V. NLRB, 330 U.S. 485
  (1947) . . . . 13
Phelps Dodge Corp. V. NLRB, 313 U.S. 177
  (1941) . . . . 8, 12, 16, 22, 23
Republic Aviation Corp. V. NLRB, 324 U.S. 793
   (1945) . . . . 16, 21
Sunland Construction Co., 309 N.L.R.B. 1224
(1992) . . . . 8, 15, 16, 17, 18, 27
Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) . . . . 13, 23
Texaco, Inc. V. NLRB, 462 F.2d 812 (3d Cir.),
  cert. denied, 409 U.S. 1008 (1972) . . . . 21
Ultrasystems- Western Constructors, Inc. V. NLRB,
  18 F.3d 251 (4th Cir. 1994) . . . . 24

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V	

Cases-Continued:

 Page

Willmar Electric Service, Inc., 303 N.L.R.B. 245
  (1991), enforced, 968 F.2d 1327 (D.C. Cir.
  1992), cert. denied, 113 S. Ct. 1252 (1993 ) . . . . 21-22
Willmar Electric Service, Inc. V. NLRB, 968 F.2d
  1327 (D.C. Cir. 1992), cert. denied, 113 S. Ct.
  1252 (1993) 9, 14, 15, 23, 24, 25, 26
statutes:
Labor Management Relations Act, 1947, ch. 120,
   101, 61 Stat. 137 . . . . 14-15
Labor Management Relations Act, 1947, Tit. III,
  29 U.S.C. 185-187 . . . . 15
   302(a), 29 U.S.C. 186(a) . . . . 15
   302 (C) (l), 29 U.S.C. 186 (C) (1) . . . . 15
National Labor Relations Act, ch. 372, 52(3), 49
  Stat. 450 (1935) . . . .14
National Labor Relations Act, 29 U.S.C. 151 et seq.:
   2 (3),29 U.S.C. 152 (3) . . . . passim
   7,29 U.S.C. 157 . . . . 6
   8(a) (1),29 U.S.C. 158 (a) (1) . . . .6, 7, 9, 18, 20
                                         24, 26
   8(a) (3),29 U.S.C. 158 (a) (3) . . . . 6, 7, 18, 20,
                                         24, 26
Miscellaneous:

Black's Law Dictionary (6th ed. 1990) . . . . 22
79 Cong. Rec. 9686 (1935) . . . . 14
Legislative History of the National Labor Rela-
  tions Act of 1935 (1949):
  Vol. I . . . . 14
  Vol. II . . . . 14
National Labor Relations Board: Hearings on
  S. 1958 Before the Senate Comm. on Educ. and
  Labor, 74th Cong., 1st Sess. (1935) . . . . 14
Restatement (Second) of Agency (1958) . . . . 8, 10, 14, 25
           
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In the Supreme Court of the United States
     
OCTOBER TERM, 1994

       No.

NATIONAL LABOR RELATIONS BOARD, PETITIONER

         v.

TOWN & COUNTRY ELECTRIC, INC., AND AMERISTAFF
    PERSONNEL CONTRACTORS, LTD.

  PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
    FOR THE EIGHTH CIRCUIT

The Solicitor General, on behalf of the National
Labor Relations Board, petitions for a writ of cer-
tiorari to review the judgment of the United States
Court of Appeals for the Eighth Circuit in this case.

      OPINIONS BELOW

The opinion of the court of appeals, App., infra,
1a-11a, is reported at 34 F.3d 625. The decision and
order of the National Labor Relations Board, App.,
infra, 12a-42a, and the decision and recommended
order of the administrative law judge, App., infra,
43a-135a, are reported at 309 N.L.R.B. 1250.

      JURISDICTION

The judgment of the court of appeals was entered
on August 31, 1994. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).

 (1)

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2

STATUTORY PROVISION INVOLVED

Section 2(3) of the. National Labor Relations Act
(Act), 29 U.S.C. 152 (3), provides:

  The term "employee" shall include any em-
ployee, and shall not be limited to the employees
of a particular employer, unless this [Act] ex-
plicitly states otherwise, and shall include any
individual whose work has ceased as a conse-
quence 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 substantiality equivalent employment,
but shall not include any individual employed as
an agricultural laborer, or in the domestic service
of any family or person at his home, or any in-
dividual employed by his parent or spouse, or
any individual having the status of an independ-
ent contractor, or any individual employed as a
supervisor, or any individual employed by an
employer subject to the Railway Labor Act [45
U.S.C. 151 et seq.], as amended from time to
time, or by any other person who is not an em-
ployer as herein defined.

       STATEMENT

This case involves the determination of the Na-
tional Labor Relations Board (Board) that a "paid
union organized' applying for or holding a job with
an employer that he intends to organize is an "em-
ployee" within the meaning of Section 2(3) of the
Act and is therefore entitled to the protections that
the Act affords to employees? The Board thus held

___________________(footnotes)

1 The term "paid union organizer," as used by the Board in
its decisions and as used in this petition, encompasses both
(1) union officials who draw a salary from the union, and

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3

that respondents had violated the Act by refusing to
consider union-member applicants for employment
on account of their union affiliation, and by discharg-
ing a newly hired union-member employee for engag-
ing in organizational activity protected by the Act.
The court of appeals refused to enforce the Board's
order, holding that the Board had erred in conclud-
ing that paid union organizers are "employees" under
the Act.
1. Respondent Town & Country Electric, Inc., is
a large nonunion electrical contractor based in Wis-
consin. In early September 1989, Town & Country
was awarded a contract to perform electrical renova-
tion work at a paper mill in International Falls,
Minnesota. App., infra, 2a. After being awarded
the contract, Town & Country learned that Minne-
sota requires an electrical contractor to employ at
least one electrician licensed by that State for every
two unlicensed electricians working at a job site. At
the time, none of Town & Country's electricians had
a Minnesota license. Ibid.
To help it recruit Minnesota-licensed electricians,
Town & Country retained respondent Ameristaff
Personnel Contractors, Ltd., an employment agency.
App., infra, 2a, Town & Country instructed Ameri-
staff that applicants had to be able to work in a non-
union shop. Id. at 16a. On September 3, 1989,
Ameristaff advertised for "licensed journeymen elec-
tricians" in a Minneapolis newspaper. Applicants
responding to the advertisements were asked, inter
alia, whether they preferred to work union or non-
union. Ibid. Ameristaff arranged for interviews with

___________________(footnotes)

(2) union members to whom the union pays a stipend in
return for their organizational efforts. This case involves
persons in both categories.

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4

seven applicants to be held September 7, 1989, at a
Minneapolis hotel. Id. at 2a-3a, 16a.
Members of the International Brotherhood of Elec-
trical Workers, Locals 292 and 343 (the Union),
learned of the job. The Union encouraged its un-
employed members to apply, with the understanding
that those members, if hired, would attempt to or-
ganize the job site. The Union had established a fund
to reimburse members for wage, travel, and health-
benefit differentials incurred on nonunion jobs. App.,
infra, 16a.
On September 7, 1989, officials of respondents ap-
peared at the hotel to interview applicants. Only one
of the seven applicants with a scheduled interview
was present. App., infra, 3a. Also present for in-
terviews were approximately one dozen members of
the Union, two of, whom were full-time paid union
officials, and the rest of whom were unemployed elec-
tricians. Id. at 3a, 17a. Respondents' officials inter-
viewed the nonunion applicant and a union member
who had no appointment but who stated that he had
to leave soon to care for his children. Neither was
hired. Id. at 3a, 17a.
Steven Buelow, Ameristaff's president, then ad-
vised the remaining applicants, all of whom were
union members, that the job was nonunion. The
union members stated that they were interested in
any job available. App., infra, 18a. Buelow then ad-
vised Ron Sager, Town & Country's manager of
human resources, that he had concluded that the re-
maining applicants were all "union." Id. at 3a, 18a.
Sager thereupon cancelled further interviews, Id. at
3a, 18a.
One of the unemployed union members, Malcolm
Hansen, protested that he had called Ameristaff that

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 5

morning and had been told to report for an inter-
view at the hotel, and that he would refuse to leave
until interviewed. App., infra, 3a, 18a-19a. Sager
at first threatened to have the union members for-
cibly removed. Id. at 19a. Sager then stated that he
would check on Hansen's situation and honor the
commitment to Hansen if Hansen's account was veri-
fied. Ibid. Upon obtaining verification of that ac-
count, Sager interviewed Hansen, and hired him.
Id. at 3a-4a, 19a. Sager advised the remaining union
members that he would not interview them, despite
Town & Country's stated need for more than one
licensed electrician, and despite the fact that only
five days remained before work on the project was
to commence. Id. at 19a, 56a.
Hansen's job began on September 12, 1989. The
following day, during a recess, Hansen announced
that he was seeking to organize employees for the
Union. App., infra, 4a, 91a. Town & Country's proj-
ect superintendent, who was present, immediately
telephoned his superiors. When he returned from the
call, he told Hansen that Hansen would be fired if
he continued to talk about the Union. Id. at 91a-92a.
The following day, at the noon recess, Hansen sought
to convince the work crew of the merits of union
organization. Id. at 102a. Later that day, Hansen
was discharged. Id. at 4a, 100a, 106a-107a.2

___________________(footnotes)

2 The company's stated reason for the discharge was that
it had terminated its contract with Ameristaff, having learned
that, under Minnesota law, an electrical contractor could not
use temporary employees such as Hansen from an employ-
ment agency; rather, all employees had to be directly em-
ployed by the contractor. Town & Country, however, rejected
Hansen's request that the company hire him directly. App.,
infra, 4a, 107a.

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6

2. The Board's General Counsel issued a complaint
alleging, inter alia, that respondents violated Section
8(a) (1) and (3) of the, Act, 29 U.S.C. 158(a) (1)
and (3), by refusing to consider the union members
for employment because of their union affiliation, and
by terminating Hansen because of his union activi-
ties.3 Respondents contended that they had acted for
nondiscriminatory reasons, and that, in any event,
neither the applicants nor Hansen were bona fide
"employees" within the meaning of Section 2(3) of
the Act, 29 U.S.C. 152(3). App., infra, 20a-21a.
a. The administrative law judge (ALJ) found
that respondents had violated Section 8(a) (1) and
(3) of the Act. He found that respondents had re-
fused to consider the job applicants for employment
because of their presumed union affiliation. App.,
infra, 56a-69a. He further found that Town & Coun-
try had terminated Hansen's employment because of
his attempts to unionize the other electricians. Id. at
109a. The ALJ rejected Town & Country's claim
that Hansen had been fired for poor performance,
terming that claim a "thinly veiled attempt to mis-
lead as to the true reasons" for the discharge, and
3 Section 8(a) (1) of the Act makes it an unfair labor
practice "to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in [Section 7]." 29
U.S.C. 158(a) (1). Section 7 of the Act grants employees the
right, inter alia, "to self-organization, to form, join, or assist
labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining."
29 U.S.C. 157. Section 8(a) (3) of the Act makes it an
unfair labor practice to discriminate "in regard to hire or
tenure of employment * * * to encourage or. discourage mem-
bership in any labor organization." 29 U.S.C. 158(a) (3).

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7

finding the claim to be "lacking in credible support."
Id. at 121a.
The ALJ also rejected respondents' claim that the
union members were not "employees" under the Act.
Following the Board's ruling in H.B. Zachry Co., 289
N.L.R.B. 838 (1988), enforcement denied, 886 F.2d
70 (4th Cir. 1989), that paid union organizers are
"employees" within the meaning of Section 2(3) of
the Act, the ALJ found that the two union officials
and the other union members who had applied for
employment were protected by the Act against dis-
crimination based on their union activity or affilia-
tion. App., infra, 53a n.13. Hansen's goal of organiz-
ing the other electricians did not deprive him of the
Act's protection, the ALJ held. Rather, Hansen was
"a rank-and-file union member," and "was dependent
financially on employment as a journeyman electri-
cian in the construction industry." Id. at 107a n.69.
Thus, "Hansen's intention to organize was not in-
compatible with his basic employment needs and ob-
jectives and did not debar him from statutory pro-
tection." Ibid.
b. The Board, in agreement with the ALJ, con-
cluded that respondents had violated Section 8(a) (1)
and (3) of the Act, by refusing to interview the
union members and by discharging Hansen. App.,
infra, 12a-42a.4
The Board reconsidered and reaffirmed its position
in Zachry that paid union organizers are "employ-
ees" within the meaning of Section 2(3) of the
Act and are therefore protected against discrimina-
tory refusals to hire and discriminatory termina-

___________________(footnotes)

4 The Board adopted the ALJ's findings of fact. App., infra,
13a & n.3.

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8

tion. App., infra, 22a, 32a-33a.5 The Board noted
that applicants for employment have been held to be
"employees" within the meaning of Section 2(3) ever
since Phelps Dodge Corp. v. NLRB, 313 U.S. 177
(1941). App., infra, 22a. The fact that an applicant
is a paid union organizer seeking to unionize an em-
ployer's work force does not change that result, the
Board reasoned. Section 2(3) defines "employee" as
"any employee," and paid union organizers do not
fall within any of the Act's specific exclusions. Id. at
23a-24a. Moreover, both the legislative history and
this Court's interpretations of the Act support a
broad definition of the statutory term "employee."
Id. at 24a-29a For a paid union organizer simul-
taneously to be an "employee" of another entity also
comports with the common law principles of agency
to which this Court has looked to define the term
"employee" in cases in which it was left undefined
by statute, the Board concluded. Under the common
law, "[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." Id. at 28a (quoting Restate-
ment (Second) of Agency 226, at 498 (1958)).
Finally, protecting paid union organizers as "em-
ployees" furthers the Act's goal of promoting the
right to organize, while leaving intact management's
legitimate rights to direct and control employees un-
der its supervision and to limit union solicitation to
nonwork time. Id. at 33a-39a.
As a remedy, the Board adopted the ALJ's recom-
mended order that Town & Country, inter alia, offer

___________________(footnotes)

5 The Board reached the same result in a companion case.
See Sunland Construction Co., 309 N.L.R.B. 1224 (1992].

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9

employment to Hansen and the union members who
had been denied interviews, and make the union mem-
bers whole for any losses suffered as a result of
Town & Country's discrimination. App., infra, 40a,
131a-133a.6
3. The court of appeals accepted respondents' con-
tention that a paid union organizer is not an "em-
ployee" within the meaning of Section 2(3) of the
Act, and denied enforcement of the Board's order.7
App., infra, 1a-11a. The court noted that the circuits
are split on whether paid union organizers are em-
ployees under the Act, with the District of Columbia,
Second, and Third Circuits holding that they are, and
the Fourth and Sixth Circuits holding that they are
not. Id. at 5a-7a; see Willmar Electric Service, Inc. v.
NLRB, 968 F.2d 1327, 1329-1331 (D.C. Cir. 1992),
cert. denied, 113 S. Ct. 1252 (1993) ; NLRB v. Hen-
lopen Manufacturing Co., 599 F.2d 26, 30 (2d Cir.
1979) ; H.B. Zachry Co. V. NLRB, 886 F.2d 70, 72
(4th Cir. 1989); NLRB v. Elias Brothers Big Boy,
Inc., 327 F.2d 421, 427 (6th Cir. 1964) ; see also
Escada (USA) Inc. v. NLRB, 970 F.2d 898 (3d Cir.
1992) (Table).

___________________(footnotes)

6 The Board left to compliance proceedings the determina-
tion of how many electricians Town & Country would have
hired absent its antiunion discrimination, and thus how many
of the 10 applicants were actually entitled to a remedy. App.,
infra, 130a.
7 The court of appeals did not disturb the Board's findings
of fact. In the court of appeals, respondents did not contest
the Board's findings that they had violated Section 8(a) (1) of
the Act by interrogating job applicants about their union
membership, banning union activity during nonwork time,
and threatening to discharge Hansen if he did not refrain
from engaging in such activity. NLRB C.A. Br. 14-15.

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10

The court of appeals found the Fourth Circuit's
reasoning in Zachry to be persuasive. App., infra,
7a. The court stated that it found the definition of
"employee" in the Act to be of "little help." Ibid.
Instead, the court `looked to the common law for guid-
ance. It noted that an individual may be "the servant
of two masters at one time only if service to one does
not involve abandonment of or conflict with service
to the other." Id. at 8a (citing Restatement, supra,
226, at 498). Ordinarily, a job applicant may be
simultaneously loyal to his union and to his nonunion
employer, the court stated. Ibid. But the Union's two
full-time organizers "were not typical applicants,"
the court stated, because they already had a job and
"wanted to enter Town & Country's work force not
for financial gain, but to organize its workers." Ibid.
And " [w]hen a union official applies for a position
only to further the union's interests, " * * an inherent
conflict of interest exists," the court reasoned, for
"the union official will follow the mandates of the
union, not his new employer." Id. at 8a-9a. For ex-
ample, "[i]f the union asks him to quit working for
his second employer, he will do so." Id. at 9a.
Further, the court stated, a full-time union official
"has a reduced incentive to be a good employee for
his second employer," because, if terminated, "he
simply returns to his full-time union job." Ibid.
The court of appeals further held that the unem-
ployed electricians who belonged to the Union (in-
cluding Hansen) were also not "employees" within
the meaning of Section 2 (3) of the Act, because they
"were also under [the Union's] control." App., infra,
9a. The. court based this conclusion on three factors.
First, the unemployed union members had been en-

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11

couraged by the Union to apply. Ibid. Second, the
Union had committed to paying the difference be-
tween their salaries and union-scale wages. Ibid.
Third and most important, the court noted that the
union members in this case were subject to the
Union's "job salting organizing resolution," which
provided that members could work for nonunion em-
ployers "only if they work for organizational pur-
poses," and that union members were to. leave the
nonunion job upon notification by the Union. Id. at
9a-10a. That last provision, the court stated, was
"controlling," for a union's "control over a putative
employee's job tenure * * * is inimical to, and in-
consistent with, the employer-employee relationship."
Id. at 10a.

REASONS FOR GRANTING THE PETITION

The Board has long held that a paid union organ-
izer is an "employee" within the meaning of Section
2(3) of the National Labor Relations Act (Act), 29
U.S.C. 152(3), and is therefore protected against
discrimination because of his union activities or affili-
ation. The Eighth Circuit's rejection of the Board's
position deepens a conflict in the circuits on that issue,
with three circuits accepting the Board's interpreta-
tion and three circuits rejecting it. The question is
a recurring one that is important to the administra-
tion of the Act. In order to resolve the conflict and
to reaffirm that judicial deference is owed to the
Board's interpretations of the Act where, as here, its
positions are rational and consistent with the statute,
this Court's review is warranted.
As this Court has often explained, Congress gave
the Board the "primary responsibility for developing

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12

and applying national labor policy." NLRB V. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 786 (1990);
see Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500-501
(1978); NLRB v. Erie Resistor Corp., 373 U.S. 221,
236 (1963). Where the Act does not speak directly
to an issue, the Court gives "considerable deference"
to the Board's interpretation and will uphold it if it
is "rational and consistent with the Act," even if the
Members of this Court "would have formulated a
different rule had [they] sat on the Board." Curtin
Matheson, 494 U.S. at 786-787; NLRB v. United
Food & Commercial Workers Union, 484 U.S. 112,
123 (1987); Fall River Dyeing & Finishing Corp. V.
NLRB, 482 U.S. 27, 42 (1987); see Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). Those principles apply with special
force when the interpretation in question is a "con-
sistent, longstanding interpretation of the NLRA by
the Board." NLRB v. Hendricks County Rural Elec-
tric Membership Corp., 454 U.S. 170, 189-190 (1981);
see also NLRB v. Transportation Management COrp.,
462 U.S. 393, 401-402 (1983); Bayside Enterprises,
Inc. v. NLRB, 429 U.S. 298, 303 (1977). In light of
these principles, the court of appeals erred in reject-
ing the Board's statutory interpretation.
1. The Act does not expressly address whether it
applies to a paid union organizer who applies for
work with an employer, while retaining an affiliation
with the union and intending to engage in organiza-
tional activity. But it has long been established that
an applicant for work is an "employee" under the
Act. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177
(1941). And the Act defines "employee" broadly to
include "any employee," 29 U.S.C. 152(3), subject
to six specific exclusions, none of which embraces a

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13

paid union organizer who, applies for a job with an-
other employer. As this Court has observed, "[t] he
breadth of  2(3)`s definition is striking: the Act
squarely applies to `any employee []' [and] [t] he only
limitations are specific exemptions" in the statute.
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984).
In Sure-Tan, this Court held that undocumented
aliens "plainly come within the broad statutory defini-
tion of `employee' " because they "are not among the
few groups of workers expressly exempted by Con-
gress." Id. at 892. The Court specifically noted that
"the Board's construction of th[e] term ["employee"]
is entitled to considerable deference, and we will up-
hold any interpretation that is reasonably defensible."
Id. at 891.8
This Court has indicated that common law prin-
ciples inform the interpretation of the term "employ-
ee" unless Congress "clearly indicates otherwise."
Nationwide Mutual Insurance Co. v. Darden, 112
S. Ct. 1344, 1349 (1992) (construing ERISA; refer-
ring to other statutes, including the Act). The
common law imposes no per se prohibition against
concurrent employment by two entities, such as by
an employer and a union. On the contrary, as the
                 
___________________(footnotes)

8 See also NLRB v. Hearst Publications, Inc., 322 U.S. 111
(1944) (sustaining Board holding that newsboys who might
be considered independent contractors under state law are
"employees"); Packard Motor Car Co. V. NLRB, 330 U.S. 485
(1947) (sustaining Board holding, prior to the addition to
the statute of language excluding "any individual employed
as a supervisor," that supervisors and foremen are "employ-
ees") ; NLRB V. E.C. Atkins & Co., 331 U.S. 398_ (1947)
(sustaining Board holding that war-production employer's
security personnel, who were required by the government to
be hired as "civilian auxiliaries to the military police," are
"employees").

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14

District of Columbia Circuit has noted in holding
that a paid union organizer is an "employee" within
the meaning of Section 2(3) of the Act, "[u]nder
common law principles `[al 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.'" Willmar
Electric Service, Inc. v. NLRB, 968 F.2d 1327, 1329-
1330 (1992) (quoting Restatement (Second) of
Agency 226, at 498 (1958), and citing Kelley v.
Southern Pac. Co., 419 U.S. 318, 324 (1974)), cert.
denied, 113 S. Ct. 1252 (1993). Thus, nothing in the
text of the Act excludes paid union organizers apply-
ing for a job from the class of "employees" covered
by the Act.9

___________________(footnotes)

9 Nor, as the Board noted, is there anything in the legisla-
tive history of Section 2(3) that requires excluding a person
who is actually performing work for hire for an employer
from the scope of the statutory term "employee" simply be-
cause he is also a paid union organizer. App., infra, 24a-26a.
As enacted in 1935, the structure and wording of Section
2(3) were quite similar to its current version, although with
fewer express exceptions. See National Labor Relations Act,
ch. 372, 2(3), 49 Stat. 450 (19%). The history of that
provision indicates that Congress used the term "employee"
to embrace generally the class of "workers," "wage earners,"
and "workmen" who comprise the work forces of "employ-
ers." See, e.g., 79 Cong. Rec. 9686 (1935) (Rep. Connery)
(referring to "every man on a pay roll"), reprinted in II
Legislative History. of the National Labor Relations Act of
1935, at 3119 (1949) [hereinafter NLRA Leg. Hist.]; Na-
tional Labor Relations Board: Hearings on S. 1958 Before the
Senate Comm. on Educ. and Labor, 74th Cong., 1st Sess. 42
(1935) (Sen. Wagger) (referring to "the workers"), re-
printed in I NLRA Leg. Hist. 1418.
Although Congress, in 1947, amended Section 2(3) to ex-
clude certain additional categories of individuals from its
coverage (see Labor Management Relations Act, 1947, ch.

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15

2. The Board has determined, as an exercise of its
authority to interpret the Act's provisions, that paid
union organizers do come within the scope of the term
"employee" as defined in the Act. That position is of
long duration, see Oak Apparel, Inc., 218 N.L.R.B.
701 (1975), and has been adhered to consistently. In
this case and in a companion case, see Sunland Con-
struction Co., 309 N.L.R.B. 1224 (1992), the Board
thoroughly reexamined the issue and reaffirmed its
view that the Section 2(3 ) definition of "employee"
covers paid union organizers.
As the Board explained in this case and in Sun-
land, affording the Act's protection to paid union
organizers furthers the policies of the Act. "The
right to organize is at the core of the purpose for
which the statute was enacted." App., infra, 33a;
Sunland, 309 N.L.R.B. at 1229; see American Hosp.
Ass'n v. NLRB, 499 U.S. 606, 609 (1991). A flat
rule that an employer may reject an applicant based
on its hostility to that person's desire to organize the
work force would be antithetical to that core purpose.
App., infra, 34a; Sunland, 309 N.L.R.B. at 1229.

___________________(footnotes)

120,  101, 61 Stat. 137), it did not otherwise limit the broad
scope of that provision. Indeed, in contemporaneously enact-
ing Title III of the Labor Management Relations Act, 1947
(LMRA), 29 U.S.C. 185-187, Congress manifested an assump-
tion that an "employee" maybe employed simultaneously by a
union and another entity. Although Section 302 (a) of the
LMRA, 29 U.S.C. 186(a), generally prohibits payments by an
employer to an employee of a union, Section 302 (c) (1) ex-
cepts from that ban payments made "to any * * * employee of
a labor organization, who is also an employee * * * of such
employer, as compensation for, or by reason of, his service as
an employee of such employer." 29 U.S.C. 186(c) (1). See
Willmar Electric, 968 F.2d at 1329. That provision thus ex-
pressly recognizes that a person can simultaneously be an
"employee" of both a union and another employer.

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16

The Board added that protecting paid union organ-
izers against discrimination based on their union ac-
tivity does not interfere with any legitimate manage-
ment right. App., infra, 34a (citing Phelps Dodge,
313 U.S. at 182); Sunland, 309 N.L.R.B. at 1229.
The Board noted that, "[w]hile working for the em-
ployer, the paid organizer is subject to its direction
and control, and is responsible for performing as-
signed work." App., infra, 34a; Sunland, 309
N.L.R.B. at 1229. The employer may prohibit any
employee, including paid organizers, from engaging
in union activity during working time, but "[o]ut-
side work time * * * the organizer-like other work-
ers-is free to solicit for the union." App., infra,
34a (citing Republic Aviation Corp. v. NLRB, 324
U.S. 793, 803 n.10 (1945)); Sunland, 309 N.L.R.B.
at 1229. The Board, citing its experience, also re-
jected the argument that its position could lead to
"unions packing bargaining units with their paid
functionaries." App., infra, 36a; Sunland, 309
N.L.R.B. at 1229. Under Board policy, "employee
status is not synonymous with voter eligibility," and
paid union organizers are excluded from voting where
they are "temporary" employees or where they do not
share a community of interests with fellow employ-
ees. App., infra, 35a-36a; Sunland, 309 N.L.R.B. at
1229. The Board also reiterated that "employers may
lawfully refuse to hire individuals seeking temporary
employment, where the refusal is based on neutral
hiring policies, uniformly applied." App., infra, 36a
n.32; Sunland, 309 N.L.R.B. at 1229 n.33.
The Board further rejected the claim that accord-
ing employee status to paid union organizers is in-
compatible with "the adversary relationship between
employer and union." App., infra, 36a; Sunland, 309

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17

N.L.R.B. at 1229.. That argument, the Board ex-
plained, assumes that "paid union organizers will
engage in union activities to the detriment of work
assigned by the employer or will embark on. acts
inimical to the employer's. legitimate interests." App.,
infra, 37a; Sunland, 309 N.L.R.B. at 1230. But, the
Board stated,

[t]he statute's premise is at war with the idea
that loyalty to a union is incompatible with an
employee's duty to the employer. The fact that
paid union organizers intend to organize the em-
ployer'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 organizational purposes, engaging in conduct
warranting discharge would be antithetical to
their objective. No body of evidence has been
presented that would support any generalized, or
specific, finding that paid union organizers as a
class have a significant, or indeed any, tendency
to engage in such conduct.

App., infra, 37a; Sunland, 309 N.L.R.B. at 1230. The
Board emphasized that paid union organizers are sub-
ject to the same disciplinary rules as any other em-
ployee, and therefore enjoy no "carte blanche in the
workplace." App., infra, 38a; Sunland, 309 N.L.R.B.
at 1230. And absent objective evidence, there is no
reason for inferring that, "if hired, paid union or-
ganizers will engage in activities inimical to the
employer's operations." App., infra, 38a; Sunland,
309 N.L.R.B. at 1230. Indeed, the Board noted, "a
paid union organizer employee arguably poses no
greater threat to an employer's property rights than
a prounion employee who voluntarily engages in or-

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18

ganizational activity." App., infra, 37a n.34; Sun-
land, 309 N.L.R.B. at 1230 n.35.10
3. In light of its careful weighing of the labor-
relations interests involved, the Board's rule-that
paid union organizers are covered by Section 2 (3)-
is certainly a rational one that is consistent with the
statute. That is particularly so in light of the stat-
ute's broad definition of "employee," the comprehen-
siveness of which is emphasized by the very existence
of the express exclusions from that definition. Ac-
cordingly, that rule is "entitled to deference from the
courts." Fall River Dyeing, 482 U.S. at 42; Curtin
Matheson, 494 U.S. at 796. The court of appeals,
however, dismissed the broad language of the statute
as being of "little help," App., infra, 7a, and refused
to defer to the Board's resolution of the issue, or even
to take into account the Board's considered appraisal
of the policy interests involved. The court relied in-
stead on its own perception of the harm to an em-
ployer of having a union organizer on his work force,
in holding that such an organizer is not an "em-
ployee" protected by the Act. That holding was error.
The premise of the court of appeals' decision was
that, unlike a "typical" union member who applies to

___________________(footnotes)

10 The Board in Sunland went on to consider whether the
employer's refusal to hire an organizer who applied for work
during a strike of the employer by his union violated Section
8(a) (1) and (3) of the Act. The Board held that, in the
strike setting, the refusal to hire was not unlawful discrimi-
nation. 309 N.L.R.B. at 1230-1231. Sunland thus illustrates
that the Board's approach permits room for legitimate em-
ployer interests to prevail against a discrimination claim by a
union organizer who applies for a job. The reasoning of the
Eighth Circuit, by contrast, would resolve each and every
case by denying the union organizer protection.

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19

a nonunion employer, a paid union organizer cannot
be "simultaneously loyal" to a union and to an em-
ployer, and thus is not an "employee" of that em-
ployer. App., infra, 8a. The court held that result
to apply even to Hansen, whom respondents actually
did hire. Id. at 9a. In the case of the unemployed
union members (a group that included Hansen), the
court asserted that they were under the union's
"control," and might have either participated in "an
employee-initiated decision to engage in a work stop-
page" at the Union's direction or resigned if di-
rected to do so by the Union. Id. at 9a-10a. In the
case of the two union officials, the court asserted that
they would likewise have ignored the employer's man-
dates, might have either "increase [d] [their] organi-
zational activities at [the] employer's expense" or
quit work if directed to do so, and would have had a
"reduced incentive to be * * * good employee [s] ." Id.
at 9a. Termination was a prospect that such a union
official might "relish," the court stated, because it
would permit the official to file an unfair labor prac-
tice charge. Ibid. In holding paid union organizers
not to be "employees," the court thus permitted em-
ployers not to hire (and to fire) such paid union
organizers solely on account of their union affiliation.
The contrary result, the court suggested, would re-
quire employers "to place and retain on its payroll
those whose continued presence on the job will be
determined by an entity other than itself." Id. at
10a.
 The court of appeals' analysis is flawed in four
respects.
First, the court's bare assumption that paid union
organizers will act in a disloyal manner toward their
nonunion employers is belied by the Board's experi-

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20

ence. The Board is aware of no evidence "that paid
union organizers as a class have a significant, or
indeed any, tendency to engage in * * * conduct" that
is "inimical to the employer's legitimate interests."
App., infra, 37a. Accordingly, "[t]he fact that paid
union organizers intend to organize the employer's
work force if hired establishes neither their unwill-
ingness nor their inability to perform quality serv-
ices for the employer." Ibid.
Second, in seeking to accommodate employers con-
fronted with a genuinely disloyal employee, the court
of appeals ignored the wide latitude that employers
already have under the Act to respond to employee
infractions and abuses. Section 8(a) (1) and (3) of
the Act protects employees only from discipline based
on union-related or other concerted activities. Noth-
ing in the Act prohibits an employer with an irre-
sponsible, underproductive, or uncooperative employee
from taking appropriate disciplinary measures
against that employee, including discharge, so long
as those measures are neutrally imposed without re-
gard to the employee's union affiliation or activity.
Indeed, "an employer may discharge an employee
for a good reason, a poor reason or no reason at all
so long as" the discharge is not motivated by unlaw-
ful considerations. Edward G. Budd Manufactur-
ing Co. v. NLRB, 138 F.2d 86, 90-91 (3d Cir. 1943),
cert. denied, 321 U.S. 778 (1944). See Anthony
Forest Products Co., 231 N.L.R.B. 976, 977-979
(1977) (no violation in discharge of paid union or-
ganizer for cause)"; NLRB v. Henlopen Manufactur-
ing Co., 599 F.2d 26, 29-30 (2d Cir. 1979) (same).
Contrary to the court of appeals' suggestion, App.,
infra, 9a, termination of such an employee for just
cause would not constitute an unfair labor practice.

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21

But to the extent that the court of appeals viewed
the increased organizational activities of a union-
member employee as an instance of such misconduct,
see ibid., it erred. The Act protects such organiza-
tional activities so long as they are confined to non-
work hours and do not otherwise interfere with pro-
duction or discipline. See Republic Aviation, 324 U.S.
at 803 n.10; Texaco, Inc. v. NLRB, 462 F.2d 812, 814
(3d Cir.) (employer may not insist that employees
forgo organizational activities, or treat such activi-
ties as disloyalty), cert. denied, 409 U.S. 1008
(1972).
A third flaw in the court's holding that paid union
organizers who apply to or actually work for an em-
ployer are not "employees" is its assumption that the
employer otherwise would be "required" (App., infra,
10a) to hire such organizers without regard to their
likely tenure. The court stated that, as a result of
the Union's "job salting organizing resolution," an
employer might be saddled with workers who would
abruptly leave respondents' employ if directed to do
so by the Union. Id. at 9a-10a.
However, as the Board has noted, an employer may
validly guard against employee resignations of the
sort feared by the court of appeals by refusing on a
neutral basis to hire temporary workers. App., infra,
36a n.32. An employer may also validly ask an ap-
plicant whether there is any obstacle (including,
inter alia, an agreement with another employer or a
union) that could prevent that applicant from com-
pleting his job or serving for a given duration. The
employer would be free not to hire a person so con-
strained, providing again that it applied this bar
without regard to whether the source of the constraint
was an agreement with the applicant's union. See
Willmar Electric Service, Inc., 303 N.L.R.B. 245, 246

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22

n.2 (1991) ("[a]n employer may * * * lawfully
refuse to hire a statutorily protected employee appli-
cant, including a paid union organizer, on the basis
of a nondiscriminatory policy against hiring any in-
dividual who, for example, seeks only temporary em-
ployment, applies while working for another em-
ployer, or intends to work simultaneously for more
than one employer"), enforced, 968 F.2d 1327 (D.C.
Cir. 1992), cert. denied, 113 S. Ct. 1252 (1993). The
employer may also design its compensation scheme
and other contractual terms so as to encourage lon-
gevity of employment. The need to protect employers
against unsatisfactory employees, in short, may read-
ily be met by other means short of depriving workers
who are also paid union organizers of the coverage
of the Act.
Finally, the decision below would create anomalies
and frustrate important policies of the Act. Under
that decision, a union member such as Hansen who
is working for pay for an employer is not an "em-
ployee" entitled to protections against discrimination,
but an as-yet unhired job applicant with no union
affiliation is a statutory "employee." See Phelps
Dodge Corp. v. NLRB, supra. To deem such an on-
the-job worker not to be an "employee" confounds
the common understanding of that term. See Black's
Law Dictionary 525 (6th ed. 1990) ("employee"
encompasses any "person in the service of another
under any contract of hire * * * where the employer
has the power or right to control and direct the em-
ployee in the material details of how the work is to be
performed"). And because the sole basis for accord-
ing the Act's protections to the nonunion applicant
but not to the union worker is that the worker has
made a commitment to attempt to organize his em-

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23

ployer's work force and stands to receive supplemental
income for doing so, the decision below is at odds with
the "central purpose" of the Act-''the achievement
and maintenance of workers' self-organization."
Phelps Dodge, 313 U.S. at 193.
The decision below would have other anomalous
results. A worker who has long satisfactorily per-
formed his job may be discharged as a non-''em-
ployee" solely because the employer has learned that
the worker has been engaged in paid organizational
activity. Such a discharge would be inimical to "the
Act's avowed purpose of encouraging and protecting
the collective-bargaining process." Sure-Tan, 467
U.S. at 892. Indeed, in this case, respondents appar-
ently did not even know at the time that they refused
to hire the unemployed union members and at the
time that Hansen was discharged that those union
members and Hansen had a financial arrangement
with the Union. To allow an employer successfully
to interpose the defense that the employee was a paid
union organizer, even if the employer has learned of
that fact only after an unlawfully motivated dis-
charge, is inconsistent with the antidiscrimination
provisions of the Act. The decision below would also
dictate, remarkably, that a longtime satisfactory
worker would cease to become a protected "employee"
within the meaning of Section 2(3) if during the
course of his employment he took on the additional
role of a paid union organizer-even if that added
role did not adversely affect his work at all.
4. As the court of appeals acknowledged, App.,
infra, 5a-7a, the decision below conflicts with the de-
cision of the District of Columbia Circuit in Willmar
Electric Service, Inc. v. NLRB, supra, the decision
of the Second Circuit in NLRB v. Henlopen Manu-

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24

facturing Co., supra, and the decision of the Board
that was enforced by the Third Circuit in Escada
(USA) Inc. v. NLRB, 970 F.2d 898 (3d Cir. 1992)
(Table).11
a. In Willmar Electric, a union's field organizer
applied for work as an electrician. He advised the
employer that he intended to remain a union official
and, during breaks and after hours, to attempt to
organize the work force. He stated that he would
"probably" stop receiving money from the union
 during his employment. The company did not hire
him. An official explained that "it's kind of hard to
hire you when you're out there on the other side,
picketing." 968 F.2d at 1328.
Upholding findings of violations of Section
8(a) (1) and (3), the District of Columbia Circuit
held that the Board had "reasonably determined]
that [a person] who is employed simultaneously by
a union and a company is an `employee' under  2(3)
of the Act." 968 F.2d at 1330-1331. Congress, the
court determined, had not "clearly resolved the issue"
of whether the term "employee" in the Act encom-
passes paid union organizers. Id. at 1329 (citing
Chevron, 467 U.S. at 842-843). But it was "plain"
that the word "employee" did not exclude concurrent
employment generally, and "[o]nce that (obvious)

___________________(footnotes)

11 As the court of appeals also noted (App., infra, 5a-6a),
its decision is in accord with decisions of the Fourth and
Sixth Circuits. See.H.B. Zachru Co. v. NLRB, 886 F.2d '70
(4th Cir. 1989); NLRB v. Elias Brothers Big Boy, Inc., 327
F.2d 421 (6th Cir. 1964). The Fourth Circuit has recently
reaffirmed its holding in Zachry. See Ultrasystems Western
Constructors, Inc. V. NLRB, 18 F.3d 251, 254 (1994) (paid
union organizer is "not a bona fide applicant for employment
within the meaning of the NLRA").

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25

step is taken, it is hard to see how one could exclude
employment by a union as well as another employer
except on grounds either of some implication from
the structure of the Act or some powerful legislative
history." Ibid. The court found no such evidence.
On the contrary, it noted that under common law an
employee could work for two masters so long as `(the
service to one does not involve abandonment of the
service to the other." Id. at 1329-1330 (quoting Re-
statement, supra, 226, at 498). And "[u]ntil such
time as an employee `abandons' the nonunion em-
ployer for the union employer, it is hard to see why
he should be denied the protection of the Act." Id.
at 1330.
The District of Columbia Circuit also rejected the
central premise underlying both the decision below
and the Fourth Circuit's decision in H.B. Zachry Co.
v. NLRB, 886 F.2d 70 (1989), on which the court
below relied: that hiring a union organizer "would
subject [the employer] to intolerable risks of dis-
loyalty." 968 F.2d at 1330 (citing Zachry, 886 F.2d
at 73). The court noted that the "risk of disloyalty
is surely not to be discounted," and that an employer
may discipline or discharge an employee "for disloy-
alty," ibid. (citing George A. Hormel & Co. v. NLRB,
962 F.2d 1061, 1064 (D.C. Cir. 1992)), much as it
could "for arson." Ibid. But, the court explained,
the employer may not discharge such a person "by
saying that arsonists are not `employees'; it must
prove that it would have fired the arsonist even if
he hadn't been engaged in union-related activities."
Ibid.
 The Eighth Circuit's acknowledged disagreement
with Willmar Electric is evident at every stage of
analysis. While Willmar Electric found that the im-

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26

placations of the statutory language as amplified by
the common law made it `hard to see why [the union
organizer] should be denied the protection of the
Act," 968 F.2d at 1330, the Eighth Circuit found the
statute to be of `little help," App., infra, 7a. Fur-
ther, whereas Willmar Electric found a union or-
ganizer's joint employment insufficient to constitute
"abandonment" under the common law, 968 F.2d at
1330, the Eighth Circuit found an "inherent conflict
of interest," App., infra, 8a-9a. Finally, while the
District of Columbia Circuit deferred under Chevron
to the Board's determination that holding a union
organizer an "employee" would not impair labor-
management relations, the Eighth Circuit ignored
the Board's analysis altogether and substituted its
own appraisal of the impact in the workplace of such
a holding. Id. at 8a-10a. The Eighth Circuit's ap-
proach therefore cannot be reconciled with the ap-
proach taken by either the Board or the District of
Columbia Circuit.
b. In Henlopen, an applicant sought employment
at a cosmetics-supply company without disclosing
that she was a union organizer and was being paid
$50 a week by the union to organize the employer
and to report information back to the union. 599
F.2d at 27-28. `The employee was hired and later
fired. The Second Circuit overturned the Board's
findings of violations of Section 8(a) (1) and (3),
because insufficient evidence of discriminatory con-
duct existed. 599 F.2d at 29-30. But in so doing,
the court also rejected the company's claim that " `a
paid union infiltrator' is not a bona fide. employee
under the Act." Id. at 30. The court based its dic-
tum on the Board's rulings that paid union organiz-
ers are in fact "employees" within the meaning of

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27

Section 2(3) of the Act, Ibid. (citing Anthony
Forest Products CO., 231 N.L.R.B. 976 (1977); Oak
Apparel, Inc., 218 N.L.R.B. 701 (1975) ; Dee Knit-
ting Mills, 214 N.L.R.B. 1041 (1974), enforced mem.,
538 F.2d 312(2d Cir. 1975) (Table) (No. 75-4016)).
c. In Escada, the Third Circuit summarily en-
forced an order of the Board finding the discharge
of a paid union organizer to have been discrimina-
tory. See 970 F.2d 898 (3d Cir. 1992), enforcing
30.4 N.L.R.B. 845 (1991). The Board there declined
the invitation of the company and a dissenting Board
member to adopt, based on the Fourth Circuit's deci-
sion in Zachry, a reading of Section 2(3) under
which union employees would not be considered "em-
ployees" within the meaning of the Act. See 304
N.L.R.B. at 845, 846.12
d. While factual differences exist among the cases
decided in the courts of appeals, as we read these
cases, those differences were not decisive. Instead,
each court, like the Board, adopted a broader ration-
ale that paid union organizers as a rule either are,
or are not, "employees" within the meaning of Sec-
tion 2 (3) of the Act.13 Moreover, to the extent that

___________________(footnotes)

12 That dissenting Board member (Oviatt) later reconsid-
ered his position in Zachry, and concurred in the Board's
decision in the instant case. App., infra, 41a; see Sunland,
309 N.L.R.B. at 1231.

13 The "job salting organizing resolution" in this case, for
example, is a factor present in no other decided case. The
court of appeals cited that resolution as a "controlling" factor
in the aspect of its decision holding that the unemployed
union members were not "employees." APP., infra, 10a. But
it is apparent from the court's opinion that the Eighth Cir-
cuit would have reached the same result absent this resolu-

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28

-factual distinctions among paid union organizers may
be seen as germane, this case involves union organiz-
ers in the varied contexts of a full-time union official,
a member who is applying for-a job, and a member
 (Hansen) actually hired by the employer. The exis-
tence of multiple fact patterns may assist the Court
 to resolve the issue in a conclusive manner that pro-
vides maximum guidance to the courts of appeals.
The discord in the circuits on the issue of whether
a paid union organizer is an "employee" within the
meaning of Section 2(3) of the Act is likely to per-
sist absent this Court's intervention. The Board has
already reexamined its position on that issue in light
of an adverse decision (the Fourth Circuit's decision
in Zachry). In this case and in a companion case,
the Board reaffirmed its position. Thus, to the extent
that the circuits have deferred to the Board's inter-

___________________(footnotes)

tion, for two reasons. First, the court endorsed the Fourth
Circuit's reasoning in Zachry, a case that involved no such
resolution. Id. at 7a. Second, in the aspect of its decision
holding that the two union organizers were not "employees,"
the court did not indicate that it was relying on the resolu-
tion. Id. at 8a-9a. Indeed, the resolution did no more than
put in writing the situation that generally exists for union
members who work for nonunion employers. Union constitu-
tions or bylaws, as in this case, see id. at 46a-47a, 62a, often
call for disciplining or expelling members who work at non-
union jobs without the permission of the union. Thus, whether
or not a resolution exists requiring a union member to leave a
nonunion job upon the union's demand, a member whose
union withdraws approval of his nonunion work will always
have an economic incentive to leave that job, for if he does
not leave that job, he may face a fine or loss of union bene-
fits. Moreover, whether or not a resolution exists, the union
member (such as the workers in this case who were unem-
ployed prior to taking the nonunion job) is also free to con-
clude that it is worth his while to spurn the union's demand.

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29

pretation of the term "employee," that interpretation
is not likely to change. There is also no reason to be-
lieve that the circuits will gravitate towards a com-
mon position in light of the reasoning of sister cir-
cuits. It was after Zachry that the District of Co-
lumbia Circuit (in Willmar Electric) and the Third
Circuit (in Escada) accepted the Board's view that
paid union organizers are "employees," and it was
after Willmar Electric and Escada that the court be-
low adopted Zachry opposite view. The Fourth
Circuit has recently reaffirmed its position in Zachry.
See note 11, supra. The same issue is also presented
in two other cases pending in the courts of appeals.
See Tualatin Electric, Inc. v. NLRB, No. 93-70775
(9th Cir.); Mathis Electric Co. v. NLRB, No. 94-
1948 (4th Cir. ). The Board has advised us that the
same issue is presented in more than 70 unfair labor
practice cases presently pending before it.

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30

       CONCLUSION

The petition for a writ of certiorari should be
granted.

Respectfully submitted,

FREDERICK L. FEINSTEIN
General Counsel

LINDA SHER
Acting Associate General
Counsel

DREW S. DAYS, III
Solicitor General

LAWRENCE G. WALLACE
Deputy Solicitor General

PAUL A. ENGELMAYER
Assistant to the Solicitor
General

NORTON J. COME
Deputy Associate General
Counsel

PETER WINKLER
Attorney
National Labor Relations Board

NOVEMBER 1994

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APPENDIX A

UNITED STATES COURT OF APPEALS
  FOR THE EIGHTH CIRCUIT

No. 92-3911

TOWN & COUNTRY ELECTRIC, INC., PETITIONER
       
 v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, Local 292, INTERVENOR/RESPONDENT

No. 93-1218

TOWN & COUNTRY ELECTRIC, INC.; AMERISTAFF
PERSONNEL CONTRACTORS, LTD., RESPONDENTS
        v.
NATIONAL LABOR RELATIONS BOARD, PETITIONER
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 292, INTERVENOR/PETITIONER

Petition for Review of an Order of the
National Labor Relations Board

Submitted: October 11, 1993
Filed: August 31, 1994

(la)

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2a

Before RICHARD S. ARNOLD, Chief Judge,
WOLLMAN and LOKEN, Circuit Judges.

WOLLMAN, Circuit Judge.
The National Labor Relations Board found that
Town & Country Electric, Inc. had violated sections
8(a) (1) and 8(a) (3) of the National Labor Rela-
tions Act (the "Act"), 28 U.S.C.  158(a) (1) &
(3), by discriminating against two full-time union
organizers and nine other union members. Town &
Country petitions for review of the Board's decision
and order, and the Board cross petitions for enforce-
ment of its order. Because we find that the union
organizers and the other union members were not
"employees" within the meaning of section 2 (3) of
the Act, .29 U.S.C. 152 (3), and therefore not en-
titled to the Act's protection, we deny enforcement
of the order.     

 I.

In early September 1989, Town & Country, a large
nonunion electrical contractor from Appleton, Wis-
consin, obtained a contract to do electrical work at
Boise Cascade's paper mill in International Falls,
Minnesota. After being awarded the contract, Town
& Country learned that Minnesota law requires elec-
trical contractors to employ one electrician licensed
by the State of Minnesota for every two unlicensed
electricians working at a job site in the state. None
of Town & Country's electricians had a Minnesota
license. To help it recruit Minnesota-licensed elec-
tricians, Town & Country retained, Ameristaff Per-
sonnel Contractors, Ltd., a temporary employment
agency from Green Bay, Wisconsin. Ameristaff ad-

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 3a

vertised in a Minneapolis newspaper for licensed
journeymen electricians.  Ameristaff prescreened
those who responded to the advertisement and sched-
uled interviews for seven "applicants at a Minneapolis
hotel on September 7.
Ron Sager, Town & Country's human resources
manager, Dennis Defferding, one of its project man-
agers, and Steven Buelow, Ameristaff's president,
flew from Appleton to Minneapolis to conduct the in-
terviews. Due to inclement weather, they arrived at
the hotel one and one-half hours late. Of the seven
applicants with scheduled interviews, only one, Gary
Weseman, was present. Also present for interviews,
however, were approximately one dozen members of
Local 292 of the International Brotherhood of Elec-
trical Workers, including two full-time paid union
officials. Officials of Local 292 had learned of the job
advertisement and had encouraged union members to
respond and, if hired, to organize the job site.
Sager and Defferding interviewed union member
Craig Jones first because he said that he had to leave
early. They then interviewed Weseman and offered
him a job. Following these two interviews, Buelow
informed Sager that none of the remaining appli-
cants had prescheduled interviews and that from
their applications they appeared to be union mem-
bers. Sager then informed the applicants that he had
decided to interview only applicants who had sched-
uled interviews because he had to return to Appleton
to attend an important meeting that afternoon. When
Sager asked all those without appointments to leave,,
Malcolm Hansen protested that he had called Ameri-
staff's office earlier that day and had been told to.
report to the hotel for an interview. After Buelow

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4a

had called his office and confirmed that Hansen had
indeed called Ameristaff after they had left for Min-
neapolis, Sager interviewed Hansen. Sager hired
Hansen, knowing that he was a union member. Al-
though interviewed and selected by Town & Country,
Hansen was technically employed by Ameristaff as a
temporary employee for referral to Town & Country.
On September 12, Town & Country's crew, includ-
ing Hansen, began work at Boise Cascade's mill. At
the job site, Hansen announced to the crew that he
was there to organize for the union. Hansen talked
continuously to his coworkers about the benefits of
the union and relentlessly solicited them to sign with
the union, even though they indicated that they were
not interested. Hansen's crewmates complained to
their foreman about Hansen's nonstop talking as well
as his poor workmanship and low productivity.
After the crew had begun work at the job site,
Sager learned that under Minnesota law an electrical
contractor could not use temporary employees from
an employment agency; rather, all employees had to
be directly employed by the contractor itself. Sager
informed Buelow about this law and about Hansen's
low productivity and poor workmanship; Buelow
then discharged Hansen on September 14. Hansen
asked Sager if Town & Country would hire him di-
rectly, but Sager refused to do so.
Affirming the Administrative Law Judge's deci-
sion, the Board found that Town & Country had vio-
lated sections 8 (a) (1) and 8(a) (3) of the Act by
refusing to interview two union officials and eight
other union members because of their union affilia-
tion and by refusing to retain Hansen because of his
union activity at the job site. Town & Country Elec.,

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5a

Inc., 309 N.L.R.B. .1250 (1992). In so holding, the
Board found that the two union organizers and the
other union members, including Hansen, were em-
ployees within the meaning of section 2 (3) of the
Act. In its petition, Town & Country argues that
this finding was improper.

II.

The Act "confers rights only on employees, not on
unions or their nonemployee organizers." Lechmere,
Inc. v. NLRB, 112 S. Ct. 841, 845 (1992). Appli-
cants for employment, however, have long been con-
sidered to be employees under the Act. Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 181-88 (1941). Al-
though the task of defining the term "employee" has
been assigned primarily to the Board as the agency
created by Congress to administer the Act, Sure-Tan,
Inc. V. NLRB, 467 U.S. 883, 891 (citing NLRB v.
Hearst Publications, Inc., 322 U.S. 111, 130 (1944)),
the Board's construction of the term is not immune
from judicial review, Allied Chemical & Alkali Work-
ers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166
(1971 ). We will uphold the Board's interpretation
only if it is reasonable. Sure-Tan, 467 U.S. at 891;
Pittsburgh Plate Glass, 404 U.S. at 166.
In this case, we must decide whether two separate
but related classes of individuals were employees
within the meaning of the Act. We first consider
whether the two full-time union organizers were stat-
utory employees and then decide the same issue for
the other nine union members, including Hansen.

A.

The circuits are split on whether paid union organ-
izers are employees under the Act. In H.B. Zachry

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 6a

Co. v. NLRB, 886 F.2d 70, 72 (4th Cir. 1989), the
Fourth Circuit, joining the Sixth Circuit, NLRB v.
Elias Brothers Big Boy, Inc., 327 F.2d 421, 427 (6th
Cir. 1964), held that a union organizer is not a bona
fide employee within the meaning of section 2(3).
Zachry had refused to hire a paid full-time union
organizer who had applied for work, upon the union's
instruction, to organize Zachry's employees. Had the
organizer been hired, he would have remained con-
currently employed and supervised by the union. The
union would have made up any shortfall in his salary,
continued to make payments for his fringe benefits,
and paid for his travel expenses and any other living
expenses related to the job. In reaching its holding,
the court stated that the "plain meaning of the term
`employee' contemplates an employee working under
the direction of a single employer. The term plainly
does not contemplate someone working for two dif-
ferent employers at the same time and for the same
working hours." Zachry, 886 F.2d at 73.
On the other hand, in Willmar Electric Service,
Inc. v. NLRB, 968 F.2d 1327, 1329-31 (D.C. Cir.
1992), cert. denied, 113 S. Ct. 1252 (1993), the D.C.
Circuit, agreeing with the Second Circuit, NLRB v.
Henlopen Manufacturing Co., 599 F.2d 26, 30 (2d
Cir. 1979), reached a contrary decision. See also
Escada (USA) Inc. v. NLRB, 970 F.2d 898 (3d Cir.
1992) (enforcing the Board's order without an opin-
ion). Willmar had refused to hire a job applicant
who was employed by a union when he applied,
sought the job for the purpose of organizing Will-
mar's work force, planned to retain an employment
relationship with the union, and planned to return
to being a full-time union employee. Rejecting

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7a

Zachry's holding, the court held that the Board could
reasonably determine that an individual "who is em-
ployed simultaneously by a union and a company is
an `employee' " under section 2(3 ). Willmar, 968
F.2d at 1330-31.
The Fourth Circuit has recently adhered to its
decision in Zachry, expressly declining to revisit it in
the light of Willmar. Ultrasystems Western Con
structors, Inc. v. NLRB, 18 F.3d 251, 255 (4th Cir.
1994).
We find Zachry to be more persuasive than Will-
mar. Section 2(3)`s definition of "employee,"1  pro-
vides little help in deciding the issue before us. See
Nationwide Mutual Ins. Co. v. Darden, 112 S. Ct.
1344, 1349 (1992 ) ; Zachry, 886 F.2d at 72. Section
2(3 ) merely defines employee to mean "any em-
ployee" and outlines several types of employment not
covered by the statute. When a federal statute does
not helpfully define the term "employee," we infer

___________________(footnotes)

1 Section 2 (3) provides in full: The term "employee" shall
include any employee, and shall not be limited to the em-
ployees of a particular employer, unless this subchapter ex-
plicitly 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 substantiality equivalent employment, but shall not in-
clude any individual employed as an agricultural laborer,
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 con-
tractor, or any individual employed as a supervisor, or any
individual employed by an employer subject to the Railway
Labor Act, as amended from time to time, or by any other
person who is not an employer as herein defined. 29 U.S.C.
 152(3).

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8a

that " `Congress intended to describe the conventional
master-servant relationship as understood by common-
law agency doctrine.'" Darden, 112 S. Ct. at 1348
(quoting Community for Creative Non-Violence v.
Reid, 490 U.S. 730, 740 (1989) ).
Under common law, an agent has a duty to act
solely for the benefit of his principal in all matters
connected with his agency. Restatement (Second)
of Agency 387 (1957). More specifically, an agent
is subject to a duty not to act on behalf of a person
or entity whose interests conflict with those of the
principal in matters in which the agent is employed.
Id. 394. Pursuant to this obligation, a person may
be the servant of two masters at one time only if
service to one does not involve abandonment of or
conflict with service to the other. Id. 226. Ordi-
narily, however, the control a master can properly
exercise over the conduct of a servant prevents simul-
taneous service for two independent employers. Id.
cmt a.
The Board argues that working simultaneously for
the union as a paid organizer and for a nonunion
employer does not involve a conflict of interest. The
Board contends that the Act is founded on a belief
that an employee may Legitimately give allegiance to
both a union and an employer.
Were this a case involving a typical job applicant,
we might well agree that an employee may be simul-
taneously loyal to his union and to his nonunion em-
ployer. The two union organizers, however, were not
typical applicants. They were not in search of a job;
they already had one. The organizers wanted to
enter Town & Country's work force not for financial
gain, but to organize its workers. When a union offi-

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9a

cial applies for a position only to further the union's
interests, we believe that an inherent conflict of in-
terest exists. In this situation, the union official will
follow the mandates of the union, not his new em-
ployer. If the union commands him to increase his
organizational activities at his second employer's ex-
pense, he will do so. If the union asks him to quit
working for his second, employer, he will do so. Addi-
tionally, a union organizer in this position has a
reduced incentive to be a good employee for his sec-
ond employer. If he is terminated, he simply returns
to his full-time union job. Indeed, he may even relish
being discharged, because he then can file an unfair
labor practice charge, claiming that he was termi-
nated because of his organizing efforts. Accordingly,
we find that the two full-time paid union organizers
were not employees under the Act.

B.

We further find that the union members who ap-
plied, including Hansen, were not employees entitled
to the Act's protection. Like the union organizers,
these applicants were also under Local 292's control.
Although not full-time organizers, they were encour-
aged by Local 292 to apply and to organize Town &
Country's employees if hired. The union would pay
those hired the difference between union scale and
Town & Country's wages as well as their travel
expenses.2 Most important, these applicants were
subject to Local 292's job salting organizing resolu-
tion. Pursuant to this resolution, Local 292 members

___________________(footnotes)

2 Indeed, for Hansen's organizational efforts at the Boise
Cascade job site, he received almost $1100 from the union,
as compared to $725 from Ameristaff.

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10a

may work for nonunion employers only if they work
for organizational purposes. In particular, the reso-
lution provides that the union's business manager is
(empowered to authorize members to seek employ-
 ment by nonsignatory contractors for the purpose of
 organizing the unorganized." The resolution further
provides that "such members, when employed by non-
signatory employers, shall promptly and diligently
carry out their organizing assignments, and leave the
employer or job immediately upon notification." We
find this last provision controlling, for third-party
control over a putative employee's job tenure, in con-
. trast to, say, an employee-initiated decision to engage
in a work stoppage, is inimical to, and inconsistent
with, the employer-employee relationship. Fidelity to
the principles and goals of one's chosen labor organi-
zation is to be expected and is of course protected by
the Act. On the other hand, traditional common-
law principles governing the establishment of the
employer-employee relationship should not be jetti-
soned in an effort to broaden the protections of the Act
beyond those which it was intended to provide. Town
& Country may not deny employment, to those who, in
addition to performing the work they were employed
to do, zealously seek to persuade their fellow employ-
ees to join their union, but it should not be required
to place and retain on its payroll those whose con-
tinued presence cm the job will be determined by an
entity other than itself. Accordingly, we hold that
Town & Country committed no unfair labor practice
in refusing to interview the two union organizers and
the other union members.
Having found that none of the alleged discrimi-
natees were employees under the Act and that there-

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11a

fore no violations of the Act occurred, we need not
consider Town & Country's remaining two argu-
ments: that the Board improperly approved the ALJ's
use of an irrebuttable presumption that all nonunion
employers are unlawfully motivated to discriminate
against individuals who are affiliated with a union,
and that the Board failed to follow precedent that
permits employers to prohibit solicitation during
work time.

Enforcement of the order is denied.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

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12a

APPENDIX B

     BEFORE THE
NATIONAL LABOR RELATIONS BOARD

Cases 18-CA-11035, 18-CA-11044, and 18-CA-11080

TOWN & COUNTRY ELECTRIC, INC. and
AMERISTAFF PERSONNEL CONTRACTORS, LTD.
    and CHARLES EVANS

TOWN & COUNTRY ELECTRIC, INC. and
AMERISTAFF PERSONNEL 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

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-

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13a

spondent Town & Country Electric filed an answering
brief to the General Counsel's cross-exceptions.
On January 22, 1992, the Board scheduled oral ar-
gument 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 organizer.' Thereafter, the Respondent,
the General Counsel, and the Charging Party Union,
and, as amici curiae, the American Federation of
Labor and Congress of Industrial Organizations and
its Building and Construction Trades Department,
AFL-CIO, the Chamber of Commerce of the United
States of America, the Associated General Contract-
ors of America, Inc., and the Associated Builders
and Contractors Inc., presented oral argument before
the Board. The Respondent and the amici also filed
briefs.'
The Board has considered the decision and the
record in light of the exceptions, briefs, and oral ar-
gument, and has decided to affirm the judge's rul-
ings, findings,3 and conclusions and to adopt the rec-

___________________(footnotes)

1 Oral argument additional y was held in Sunland Construc-
tion 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. Subse-
quently, the AFL-CIO submitted a letter citing a recently
issued relevant court decision.

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 credi-
bility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188

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 14a

ommended Order as modified below.4
For the reasons' discussed below, we find that paid
union organizers Michael Priem and Greg Shafran-
ski, as well as nine other union members who sought
"employment with the Respondent: 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
`consider 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

___________________(footnotes)

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, includ-
ing the judge's decision, we conclude that the Respondent's
contentions are without merit.

4 Although he found that Respondent Ameristaff Personnel
Contractors, Ltd. coercively interrogated an applicant for
employment, the judge concluded that the violation was ade-
quately remedied by his recommended Order regarding
Ameristaff's principal. Respondent Town & Country, which
 he found also violated Sec. 8(a) (1) of the Act by this con-
duct. We find merit in the General Counsel's exception to
the judge's failure to require that Respondent Ameristaff,
which was acting as the agent for Respondent Town & Coun-
try in the procurement of employees, also cease and desist
from interrogating employees in violation of the Act. Ac-
cordingly, 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

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15a

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,' Boise
Cascade awarded Town & Country a contract to per-
form electrical renovation work at Boise's facility in
International Falls, Minnesota, Town & Country
was to begin work on September 11. There is a Min-
nesota statutory requirement that an electrical con-
tractor employ 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 electrician licensed in Minnesota at the time
Boise Cascade 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
responsible for advertising job opportunities related
to the Boise-Cascade operation and assumed liability
for fringe benefits earned by employees on its pay-
roll who worked there. Town & Country, however,
retained exclusive discretion regarding interviewing,
hiring, the setting of wage rates and granting of
increases, supervising and the discharge of employees
on the Boise-Cascade project. The judge found, and
we agree, that Town & Country exercised plenary

___________________(footnotes)

to retain employee 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.   

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16a

authority and control over employees retained by
Ameristaff for its account and that, even absent a
joint-employer relationship, Ameristaff was an agent
whose conduct in connection with hiring for the Boise
project was binding on Town & Country.
On September 3, Ameristaff ran an advertisement
in a major Minneapolis newspaper announcing em-
ployment opportunities for "licensed journeymen
electricians" and including its telephone number.
Ron Sager, Town and Country's manager of human
resources, made it clear to Ameristaff before the ad-
vertisement was placed that job applicants had to be
"able to work a merit [nonunion] shop." When ap-
plicants responded to the advertisement, Ameristaff's
receptionist, 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 Minneapolis on September 7.
Members and officials of International Brother-
hood of Electrical Workers, Locals 292 and 343,
learned of Ameristaff's job advertisements. The
Unions, which had authorized their members to work
nonunion for organizational purposes, encouraged un-
employed members to apply and, if hired, to organize
the jobsite. There was a fund the Unions had estab-
lished to reimburse members for wage, travel, and
health benefit differentials they incurred on nonunion
jobs.

___________________(footnotes)

 8 The General Counsel did not allege that O'Mellan's ques-
tioning of the phone applicants violated Sec. 8(a) (1) of the
Act.

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17a

On September 7, Sager and Dennis Defferding, the
Respondent's project manager, traveled from Apple-
ton, Wisconsin to Minneapolis to conduct job inter-
views for the Boise-Cascade project. They did not
arrive at the Embassy Suites until about 11 a.m. be-
cause 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 interview. None had previously scheduled
interviews, except 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 applicant 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 applicants.
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 dis-
cuss out-of-town work with his wife. Town & Coun-
try told Jones that it would keep his application on
file. There was no further contact between Jones and
Town & Country representatives.9 Town & Country

___________________(footnotes)

9 We adopt the judge's finding that the Respondent did not
violate Sec. 8(a) (3) by refusing to consider Jones for em-
ployment, or another union member, Roger Chartrand, who
arrived at the Embassy Suites as the Respondent's representa-
tives were departing.

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18a

next interviewed Gary Weseman but did not hire
him.10
Meanwhile, Buelow informed the remaining appli-
cants that the job was nonunion. The union mem-
bers responded that they were interested in any
work available. 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 inter-
viewed. 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
curiosity as to how those applicants without appoint-
ments had known about the interviews. Buelow at
some point showed him several of the applications
and cemented, "I think they're union." Sager
decided to cancel further interviews and return to
Appleton purportedly because his attendance was re-
quired for a manpower meeting at 3:30 that after-
noon. Yet, Sager admitted that he had previously
learned, on September 5, of the licensed journeyman
helper ratio that Minnesota law requires. It is un-
disputed that Town & Country employed no electri-
cians licensed in Minnesota at the time Sager decided
to return to Appleton.
When Sager announced to the remaining applicants
that he would conduct no further interviews, Hansen

___________________(footnotes)

10 The General Counsel did not allege that Town & Country's
failure to hire Weseman constituted a violation.

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19a

protested that he had called the number - in the news-
paper advertisement and was told to "show up."
Hansen announced that he would not leave until
Sager interviewed him. After threatening to call
local authorities and have the union members re-
moved from the hotel room, Sager said that he would
check about Hansen's situation and "honor the com-
mitment" if Hansen had made" an appointment. Bue-
low 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
discharged Hansen because, as the judge found, he
attempted to organize the Respondent's nonunion
employees 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 im-
mediately after learning of the remaining applicants:
union affiliation, the General Counsel established a
prima facie case that Town & Country had discrimi-
natorily 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 pre-
screened. The judge stressed that Town & Country
had interviewed Jones without this condition being
met and that Sager, who should have known that

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20a

Ameristaff had screened only seven applicants, ex-
pressed pleasure on arriving at the Embassy Suites
and observing that the turnout was larger than an-
ticipated. The judge found it incomprehensible that,
given Sager's purported urgency about attending the
manpower meeting later that day, Sager made no
effort on his arrival at the Embassy Suites to monitor
the interviewing process so as to best utilize the lim-
ited time he claimed was available for the interviews.
For these reasons, the judge found that, except for
Jones and Chartrand, discussed supra, Town & Coun-
try violated Section 8(a) (3) by failing to demon-
strate that it would not have interviewed and consid-
ered for hire those named in the complaint in the
absence of their union affilliation.
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),
denying enf. to 289 NLRB 838 (1988), discussed
infra, from the present case because, in his view,
the evidence showing that the Union planned to re-
imburse Hansen for any wage and benefit losses he
incurred on the nonunion job did not warrant a find-
ing 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 dis-
criminatees were not bona fide applicants under the
statute. The Respondent notes that Priem and Sha-
franski were full-time salaried business representa-

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21a

tives and that the Union paid Hansen full journey-
man's scale, in addition to the pay he received from
Ameristaff, for the 31 hours that he worked at the
Respondent's jobsite. The Respondent claims that the
Union's payments to Hansen put him in the same
category 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
discriminates, the Respondent argues that no viola-
tion occurred when it rejected their applications be-
cause, if they had been hired, the Union's "salting
resolution" would have paid them the difference be-
tween the Respondent's wages and union scale and
thus disqualified them under Zachry.
The Respondent also contends that the alleged dis-
criminatees did not qualify as statutory employees
because their first obligation under the salting reso-
lution was to fulfill the Union's organizing purpose.
The Respondent asserts that it was the Union which
was the discriminates' 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.
Further, because the salting resolution required mem-
bers 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 Re-
spondent 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.

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22a

II. ANALYSIS

A. Overview

We agree, for the reasons stated by the judge,
that the Respondent violated Section 8 (a) (3) and
(1) by refusing to hire Priem, Shafranski, and eight
other union members who applied for work and by
later discharging employee Malcolm Hansen because
of his union activities. Additionally, in finding these
8(a) (3) violations, we specifically affirm the judge's
findings that Hansen, as well as the discriminates
that Town & Country rejected for employment be-
cause of their union affiliation, are statutory em-
ployees for the reasons fully discussed below.

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 employee,
and shall not be limited to the employees of a par-
ticular employer, unless the Act explicitly states
otherwise, and shall include any individual whose
work has ceased as a consequence of, or in con-
nection with, any current labor dispute or be-
cause of any unfair labor practice, and who has
not obtained any other regular and substantially
equivalent employment

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        23a

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 expan-
sive to encompass paid union organizers.

2. Exclusions

Next we look to the exclusions in Section 2(3).
Congress in 1935 excluded specific categories from its
broad definition of "employee," i.e., agricultural la-
borers and individuals performing domestic service in

___________________(footnotes)

11 Websters Third New International Dictionary, 743 (rev.
1971). We also Funk & Wagnalls Standard College Diction-
ary, 433 (1973), which defines "employee" as "one who works
for another in return for salary, wages, or other consider-
ation."

12 We assume that the statutory purpose is expressed by the
ordinary meaning of its words. INS v. Phinpathya, 464 U.S.
183, 189 (1984) .

---------------------------------------- Page Break ----------------------------------------

24a

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
individual employed as a supervisor, or any in-
dividual employed by an employer subject to the
Railway 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."" Accordingly,
full-time, paid union organizers are "employees"
within the ordinary meaning of this provision. See
generally 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

___________________(footnotes)

13 2A Singer, Sutherland Statutory Construction, Sec. 47.23
(4th ed. 1973) (Suppl. 1991).

---------------------------------------- Page Break ----------------------------------------

25a

that Congress intended Section 2(3 ), at least as to
paid union organizers, to be more restrictive than the
ordinary meaning of its terms.14 On the contrary, the
legislative history reflects Congress' intent to expan-
sively interpret "employee."
Although Congress did not specifically consider the
status of union organizers when enacting Section
2(3), it expansively referred to "employees" as "work-
ers, " "wage earners," "workmen,"'15 and "every man
on the payroll."" Even when Congress amended Sec-
tion 2(3 ) in 1947 specifically to exclude additional
classifications from the definition of "employee," it did
not narrow the general definition of "employee."
Rather, Congress continued to describe "employees"
inclusively as individuals "work[ing] for another for
hire," and "work[ing] for wages and salaries under
direct supervision."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
"supervisors" from the definition of "employee."18

___________________(footnotes)

14 Compare NLRB V. Bell Aerospace CO., 416 U.S. 267
(1974) (based on legislative history of the Taft-Hartley Act,
managerial employees 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).
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) .

---------------------------------------- Page Break ----------------------------------------

26a

Had Congress concluded that paid organizers were
not entitled 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
define "employee," the Supreme Court has consist-
 ently interpreted Section 2(3) broadly to cover indi-
viduals not explicitly excluded. The seminal case is
Phelps Dodge CORP v. NLRB, supra, where the Su-
preme Court broadly interpreted the Act to include
applicants for work as well as actual hires. The
Court also rejected Phelps Dodge's argument that
certain strikers who had obtained employment else-
where were not entitled to reinstatement because they
were not statutory "employees." Writing for the
Court, Justice Frankfurter twice characterized the
definition of "employee" in Section 2(3) as a "broad"
"one, which "expressed the conviction of Congress
"that disputes may arise regardless of whether the
disputants stand in the proximate relation of em-
ployer 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 discrimi-
-nation . . . would sanction a most effective way of
defeating the right of self-organization." Id. at 193.

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27a

Following Congress' 1947 amendment of Section
2(3 ) to exclude supervisors, independent contractors,
and others, the Supreme Court reaffirmed an expan-
sive interpretation of "employee." In Chemical Work-
ers 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 limita-
 tions are specific exemptions" contained in the stat-
ute. In concluding that undocumented aliens were
statutory "employees," the Court relied not only on
Section 2(3)'s broad language, but also on the con-
clusion that an expansive interpretation of the stat-
ute was consistent with "the Act's avowed purpose of
encouraging and protecting the collective-bargaining
process." Id. at 892.
The Supreme Court's analysis of the word "em-
ployee" under the Employee Retirement Income Se-
curity Act (ERISA ), a statute that also addresses
work place issues, endorses the application of common
law agency principles. Thus, in Nationwide Mutual
Insurance 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-
              
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28a

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 maybe 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,
circuitously 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
organizers cannot be excluded from the definition of
"employee" on the basis that they are paid by their
union as well as by the employer they are attempting
to organize.20

___________________(footnotes)

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. Lip-
shutz, 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).

---------------------------------------- Page Break ----------------------------------------

29a

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
undertaking this task, the Board has uniformly inter-
preted "employee " in the "broad generic sense" to
"include members of the working class generally.""
Under this expansive interpretation, the Board has
found that Section 2 (3) covers not only employees of
a particular employer, but also employees of another
employer, former employees of a particular employer,
applicants for work, temporary and part-time em-
ployees, and individuals 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
organizers are "employees" entitled to the Act's pro-
tections. Thus, in Dee Knitting Mills, 214 NLRB
                                            
___________________(footnotes)

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 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. Brickman Southeast, 261 NLRB 204,210 (1984).

---------------------------------------- Page Break ----------------------------------------

30a

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 Apparel, 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
attending school; were working on a second job;
or in other circumstances which indicated they
intended 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
      
___________________(footnotes)

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.

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31a

purposes of Section 8(a) (3) whether the discharged
organizers sought permanent employment with the
respondent. 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 em-
ployers discriminating "with impunity against tem-
porary or casual employees who are not includable
in any bargaining unit." Id. Since Oak Apparel, the
Board consistently has held that paid union organiz-
ers are statutory employees entitled to the Act's
protection.25

  c. The courts of appeals

The Second, Third, and District of Columbia Cir-
cuit Courts of Appeals agree with the Board that a
paid union organizer can nonetheless be an "em-
ployee" 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

___________________(footnotes)

25 Anthony Forest Products, 231 NLRB 976, 977-973
(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, 1312 fn. 226, 1316 (1988).

26 The Second Circuit refused to enforce the Board's order
on other grounds, however.

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32a

421, 427 (6th Cir. 1964); H.B. Zachry Co. v. NLRB,
886 F.2d 70 (4th Cir. 1989).

5. Reexamination of our interpretation of Sec-
tion 2(3)

On reexamination of our analysis of the scope of
Section 2(3) in Oak Apparel and its progeny, we
conclude that the definition of "employee" encom-
passes paid union organizers.
As more fully explained above, we rely on: (1)
the language of Section 2(3) which, given its ordi-
nary meaning and Congress' determination not to
place paid union organizers among its other exclu-
sions, must be read inclusively to encompass paid
organizers; (2) the Supreme Court's consistently
broad interpretation of Section 2 (3) and its applica-
tion 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 pre-
cedents, most recently approved by the District of
Columbia Circuit in Willmar Electric Service, supra,
that, among other things, rejects the position that
because the employment of paid union organizers is
of limited duration they cannot be "employees."
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

---------------------------------------- Page Break ----------------------------------------

 33a

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 Elec-
tric Service v. NLRB, supra, recently addressed this
point. The court applied common law agency princi-
ples to interpret Section 2(3) to include concurrently
employed paid union organizers.27 Observing that a
paid organizer's employment would give him a better
perch from-which to propagandize, the Willmar court
nonetheless found that this was inadequate to distin-
guish the paid organizer from an unpaid union zealot,
who was plainly an "employee." We agree and con-
clude 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-

___________________(footnotes)

27 The court cited Nationwide Mutual Insurance Co. v. Dar-
den, 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
"employee" to exclude those working for two employers at
the same time draws little support from its citation to Chemi-
cal Workers v. Pittsburgh Plate Glass, supra. There the Su-
preme Court held that the statutory language must be given
its "ordinary meaning;" nothing in that decision points to a
conclusion that dual-employed individuals fall outside the
ordinary meaning of "employee." On the contrary, the Su-
preme Court expansively interpreted "employee" in Pitts-
burgh Plate Glass to include anyone working for another for
hire.

29 NLRB v. Hearst Publication.s, supra at 126 (1944);
Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 193 ("the

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34a

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 inten-
tion 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 discretion 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
Aviation Corp. v. NLRB, supra, 324 U.S. at 802-803
fn. 10. Outside work time, however, the organizer-
like other workers free to solicit for the union. Id.
The fact that a paid organizer may approach his non-
work time organizing activities with greater vigor
than an unpaid union adherent is not an acceptable
basis for denying the organizer statutory protections.

___________________(footnotes)

central purpose of the Act [is] directed . . . toward the
achievement and maintenance of workers' self-organization");
Republic Aviation v. NLRB, 324 U.S. 793, 797 (1945).

30 Paid organizers are not employees because they fulfill the
important 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.

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35a

The Respondent and its amici also contend that
finding that an organizer is an "employee" within
the ambit of Section 2(3) would impinge on the em-
ployees self-determination rights because the union
organizer -would be paid by the union to vote for it in
an election.            .
The organizer's status as a statutory employee does
not, however, ensure his right to vote.31 In determin-
ing 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-

___________________(footnotes)

31 Note, H.B. Zachry Co. v. NLRB: Paid Full-Time Union
Organizer 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 "em-
ployee" within the meaning of Section 2 (3) has been
recognized since the infancy 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 cam-
paign. Although the permanency 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., Pennsylvania
Electric Co., 289 NLRB 1200 (1988);' EDP Medical Com-
puter System, 284 NLRB 1232 (1987). To hold otherwise
and single out paid union organizers for exclusion from 2(3)

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36a

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, su-
pra, among other things, as supported 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 balancing process, however, is inapplicable to
2(3) employees. Neither Babcock & Wilcox nor
Lechmere interpret Section 2 {3 ), or so much as hint
that property rights may be resurrected as a device

___________________(footnotes)

coverage as "temporaries" flies in the face of Sec. 7 protec-
tions. Of course, employers may lawfully refuse to hire in-
dividuals seeking temporary employment, where the refusal
is based on neutral hiring policies, uniformly applied, Will-
mar 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) .

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37a

to bar activity long protected by the statute.34 In-
stead, they address the lawful restrictions that em-
ployers can place on nonemployees. See Willmar at
1330.
 The Respondent and its amici vigorously contend
that paid union organizers will engage in union ac-
tivities to the detriment of work assigned by the em-
ployer or will embark cm acts inimical to the employ-
er's legitimate 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 employer. The fact that paid union organizers
intend to organize the employer's work force if hired
establishes neither their unwillingness nor their in-
ability to perform quality services for the employer.
Indeed, because the organizers seek access to the job-
site for organizational purposes, engaging in conduct
warranting discharge would be antithetical to their
objective. No body of evidence has been presented
that would support any generalized, or specific, find-
ing that paid union organizers as a class have a sig-
nificant, or indeed any, tendency to engage in such
conduct.

___________________(footnotes)

34 Amici argue that paid union organizers are not "em-
ployees" because their request for employment is a guise to
gain access to the employer's private property to further the
union's objectives. Although 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 organiza-
tional activity. Note H. B. Zachry Co. v. NLRB: Paid Full
Time Union Organizer Not an "Employee," 50 La. L. Rev.
1211, 1215-1216 (1990).

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 38a

 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 ap-
pear to give rise to a conflict, it is a conflict that was
resolved by Congress long since in f aver of the right
of employees to organize. To hold otherwise at this
late date would require "some type of transcendent
loyalty" on the part of an "employee" to the em-
ployer that, in theory, even the Fourth Circuit would
"not require. 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, how-
ever, 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,

___________________(footnotes)

35 Although employers lawfully may insist that employees
adequately perform assigned work, they cannot insist that.
employees forego organizing activities, or treat those activi-
ties 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 fundamental right
to urge their coworkers to support the union, cm company
property, outside working hours. Republic Aviation V. NLRB,
supra.

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39a

we find no policy reason to disregard present deci-
sional law to find that since a union organizer serves
the union as well as the company he is eliminated
from the definition of employee under Section 2(3)
of the Act.36
Having carefully reviewed the language of Section
2(3), its legislative history, policy, and the wealth of
decisional law interpreting this statutory provision,

---------------------------------------- Page Break ----------------------------------------

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 pay-
ment may violate Sec. 8(a) (2)'s proscription against em-
ployers contributing financial support 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 con-
templates that paid union personnel can be "employees" of
other employers. Thus, although Sec. 302 generally prohibits
employers from paying union employees, it. expressly ex-
empts payments by employers "to any . . . employee of a
labor organization, who is also an employee . . . of such em-
ployer, as compensation for, or by reason 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 organizers are not 2 (3) employees because they work
for labor organizations 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 stat-
utory "employers," labor organizations are 2(2) "employers"
of their own employees. Further, it it immaterial for pur-
poses of our analysis whether unions are statutory employers;
the organizer derives his "employee" status from his employ-
ment 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.

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40a

we reaffirm our adherence to Oak Apparel and its
progeny. 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
employment 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 employ-
ment the 10 applicants named by the judge because
of their union affiliation and by subsequently dis-
charging Hansen because of his organizing efforts.

        ORDER

The National Labor Relations Board orders that:

A. Respondent Town & Country Electric, Inc.,
Appleton, Wisconsin, its officers, agents, successors,
and assigns, shall take the action set forth in the
recommended 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 con-
cerning 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.

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41a

(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 conspicu-
ous places including all places where notice to em-
ployees 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 Respondent has taken to comply.

MEMBER OVIATT, concurring.

For reasons set forth in my concurring opinion in
Sunland Construction Co., 309 NLRB 1.221 (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.

___________________(footnotes)

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."

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42a

APPENDIX

      NOTICE To EMPLOYEES
     POSTED BY ORDER OF THE
   NATIONAL LABOR RELATIONS Board

An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
WE WILL NOT coercively interrogate job applicants
concerning their union membership.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the Act.

AMERISTAFF PERSONNEL
CONTRACTORS, LTD.

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43a

       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 September 25, 1989, and a
consolidated complaint issued on November 16, 1989,
alleging that the Respondents are joint employers on
a specific project in International Falls, Minnesota,
and in connection therewith engaged in, numerous in-
dependent 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 employ-
ment; by since September 13, refusing to hire Charg-
ing Party Charles Evans; by on September 14, dis-
charging Malcolm Hansen; and by since September
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 Gen-
eral Counsel, the Charging Party, and separately,
for each of the Respondents.
On the entire record, including my opportunity di-
rectly to observe the witnesses and their demeanor,

___________________(footnotes)

1 The witnesses presented by each side to this controversy,
for the most part, were not entirely credible, thus, compli-
cating the factfinding process. In that connection, my direct,
personal observation of the witnesses was often a factor in-
fluencing resolutions of credibility. 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 certain instances, I believed and disbelieved the same wit-
ness, though the testimony conflicted with the same opposing

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44a

and after considering the posthearing briefs, I make
the following

     FINDINGS OF FACT

     I. JURISDICTION

The Respondent Town & Country Electric, Inc., a
Wisconsin corporation (T & C), from its facilities in
Appleton, Wisconsin, is engaged as an electrical con-
tractor in the construction industry. In the course
of that operation, it annually provides services valued
in excess of $50,000 directly to customers located
outside the State of Wisconsin.
The Respondent, Amerisaff Personnel Contrac-
tors, Ltd. (Ameristaff), a Wisconsin corporation,
from its facilities in Green Bay, Wisconsin, is en-
gaged in operation of a temporary employment
agency. In the course of that operation, Ameristaff
annually provides services to T & C valued in excess
of $50,000.
On the foregoing, I find that the Respondents T &
C and Ameristaff are employers engaged in com-
merce 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 sis-
ter, Local Union 343, admit employees to member-
ship and, at least in part, exist for the purpose of
representing them in the negotiation and adminis-

___________________(footnotes)

witness. These diverse, 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.

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45a

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 hiring 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 unaffiliated with any
labor organization. Its electrical operations, however,
require access to craftsmen whose skills are compar-
able to those traditionally represented by AFL-CIO
building 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 re-
strictions is a requirement that one electrician li-
censed by the State be employed for every two en-
gaged in electrical work on the job.4 Based in Apple-
ton, Wisconsin, T & C was a nonresident contractor,
with limited experience on Minnesota projects.

___________________(footnotes)

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-CD-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.

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46a

Work was to begin on Monday, September 11.
T & C, the largest nonunion electrical contractor in
the State of Wisconsin, in early September, did not
have a single electrician licensed in Minnesota, either
within its files or among its work force of some 260.'
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 re-
tained Respondent Ameristaff, a temporary employ-
ment agency, to stir the labor markets, and ulti-
mately, to stand, at least frontally, as the immediate
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. inno-
vation. It is a marked departure from historic meas-
ures used by building trade unions in the ongoing
struggle to preserve jobs and negotiated labor stand-
ards. In the past, most, if not all, skilled trade
unions had endeavored to protect their respective
crafts by denying skilled labor to nonunion contrac-
tors, a tactic highly effective in a transient 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 cm nonunion employment, which
are subject to enforcement against members through
internal disciplinary machinery. In recent years,

___________________(footnotes)

5 This figure includes about 25 unskilled workers, 71 in-
dentured apprentices, and 130 journeyman electricians.

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47a

however, employment opportunities with union con-
tractors have declined; causing construction unions
to take a second look at the growth of nonunion com-
petition. To that end, a market recovery strategy
was fashioned as a means of organizing nonsignatory
employers. Hence, in 1988, Locals 292 and 343 au-
thorized 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.
This strategy was unleashed against T & C under
conditions of surprise during a Minneapolis recruit-
ment effort waged in conjunction with the Boise-
Cascade project. Thus, T & C's response to the union
initiative forms the premise for allegations of dis-
crimination 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 contacts with T & G. Of the applicants, a
single member of Local 292 was hired, and the Gen-
eral 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 Ameri-
staff afforded 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 carried on the payroll of

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48a

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
advertising, communicating with job prospects, com-
piling completed applications, arranging the accom-
modations for interviews, and completing the paper-
work necessary to maintain payroll for those hired.
Ameristaff neither interviewed, nor influenced hiring
decisions. 6 and had no presence, and hence no over-
seeing role, at the Boise-Cascade jobsite. Most, if not
all, conventional employment prerogatives were re-
tained by T & C. Interviewing, hiring, supervising,7
the setting of wage rates and granting of increases,8

___________________(footnotes)

6 Steven Buelow, Ameristaff's president, testified that he
had no role during the Minneapolis recruitment. operation
other than to distribute and collect applications. Defferding
testified to the contrary, suggesting that, at least in the case
of Malcom Hansen, who was "selected" by Defferding and
Sager, Buelow was involved in that process "because he [Han-
sen] was going to be Mr. Buelow's employee." 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 regulations apply-you are working under
their direction and supervision." G.C. Exh. 14.

8 As shall be seen, Malcolm Hansen was the sole Ameristaff
employee 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 incorpo-
rated Hansen's wage rate and per diem as a multiplier.

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49a

trod, for all intents and purposes, discharges,9 were
matters reposed to exclusive discretion of T & C
operatives.
On these facts, it is indisputable that T& C exer-
cised plenary authority and control over employees
retained by Ameristaff for its account. In these cir-
cumstances, even absent a joint-employer relation-
ship,10 Ameristaff, having a mere nominal role, pos-
sessed 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 re-
fusal to consider certain Local 292 members 12 in the

___________________(footnotes)

9 Buelow testified that on September 13 he was informed
by T & C to terminate Hansen. His lack of control in such
matters was explained as follows:

[Tl 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
Minneapolis area and the five surrounding counties.

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50a

course of an interview session conducted in Minne-
apolis on September 7. All but two that attended,
completed applications at that time. Only one cov-
ered by this immediate allegation was interviewed.
In addition to the alleged discrimination, certain in-
dependent 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 includes interrogation of appli-
cants 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 non-
union jobs; and statements that union members could
not be hired.
The Respondents deny that their representatives
either unlawfully questioned, threatened, expressed
a preference, or attempted to impede organization.
Furthermore, it is argued that the failure to inter-
view those present, was based on considerations
totally unrelated to union activity. Thus, T & C
urges that I credit evidence that the time available
to complete the process impelled T & C to confine
interviews to those with prescheduled appointment.

   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, Minne-
sota. 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.

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51a

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. Moreover, because the job was
described as short term, he allegedly did not wish to
hire from the outside on a "permanent" basis. There-
fore, 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.
Having been retained by T & C to recruit qualified
electricians, Ameristaff followed up in area news-
papers. On September 3, 1989, a blind advertisement
appeared in a `major Minneapolis newspaper an-
nouncing employment opportunities 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 cor-
rectly 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 de-
termine if they meet the client's criteria. In anticipa-

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52a

tion of responses to the ads, Buelow set up a screen-
ing 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 journey-
man/helper ratio under Minnesota law. For this
reason, Sager instructed Ameristaff that only licensed
electricians interested in working for a merit shop
employer would be hired for the Boise-Cascade job.
Ameristaff had been informed that T & C needed
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 Interna-
tional Falls on Monday, September 11. Sager and the
designated project manager, Dennis Defferding, were
aware, at least since September 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
appointments for the Embassy Suites in Minneapolis
on Thursday, September 7. That day, T & C chart-
ered an aircraft to transport Buelow, and T & C's
Sager and Defferding from Appleton, Wisconsin, to
Minneapolis. About 14 unemployed members of Local
292, including 2 full-time salaried officials of that
organization, appeared at the Embassy Suites in quest

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53a

of work. Applications, under Ameristaff logos, were
distributed and completed. Interviews were Con-
ducted by Sager and Defferding. Three were inter-
viewed, two were offered jobs, but only one, Malcolm
Hansen, was hired. However, the hiring process was
cut off before any others would be interviewed. 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 inter-
view 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 busi-
ness representatives of Local 292.13 The rest, in-
cluding Claypatch, a nonpaid member of that Local's
executive board, were apparently unemployed.
All except Chartrand filed applications." Of this
group only Jones was interviewed. Parenthetically,

___________________(footnotes)

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 sub-
ject 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 solicited. He testified that he was denied an opportunity

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54a

it is noted that a longstanding member of Local 292,
Malcolm Hansen, was interviewed and actually hired.
The third and only other person extended an inter-
view was Gary Weseman, a nonaffiliated of Local 292.
More specifically, a composite of credible testimony
of Sager and Priem reveals that, due to a flight delay,
the interview team did not arrive until 11 a.m. Two
rooms had been reserved. One was arranged as a
waiting area, with refreshments and tables for com-
pleting 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 distributed applications, which
bore the Ameristaff logo, for completion by those
present. (G.C. Exh. 3.) Later, Buelow gathered the
completed applications and carried them to the room
in which interviews were conducted.15

________________(footnotes)

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, re-
ceived no further contact. Another individual 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
Counsel 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 Col-
lecting the applications, Buelow stated that they needed eight
people immediately for this project. From all indications on
this record, that figure went well beyond T & C's needs, and
Priem's testimony in this regard impressed as a pat, unbeliev-
able attempt to broaden the former's liability under this
complaint.

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55a

Craig Jones was the first interviewed and Gary
Weseman, the only nonmember of Local 292, was
second. It is important to bear in mind that Wese-
man was the only applicant present that Buelow had
previously scheduled for an interview. (R. Exh. 10.)
There also is no dispute that Buelow, after collect-
ing the completed applications, returned to the wait-
ing room. A dispute existed as to what was said, but
under all versions, it is clear that the applicants
were informed that the job in question was non-
union."' 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 ap-
pointments, then stated that: "we don't know if we
can interview the rest of you because 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 returning 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

___________________(footnotes)

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. Customarily, however, construct ion
contractors that have bargaining relationships with affiliated
craft unions, will obtain skilled personnel from the latter's
hiring hall, either on a compulsory or voluntary basis. To say
the least, Buelow's testimony aroused curiosity as to why this
class of "unionized contractors" would bother with a commer-
cial, fee-based, manpower agency.

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56a

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 Ameri-
staff 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. There-
after, the session was terminated. Other than Han-
sen and Jones, no one that completed an applica-
tion 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 interview 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 information which made it econom-
ically infeasible to consider the Embassy Suites ap-
plicants. 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

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57a

fees" if it used the Embassy Suites. applications, all
of which were solicited by Ameristaff. The minimum
guarantee to Ameristaff would be $1320 per appli-
cant. T & C argues that to avoid this expense, that
avenue was abandoned in favor of in-house recruit-
ment.17
The evidence supporting this claim is beyond sus-
picion. It basically conforms with my understanding
of the business practices generally followed by sup-
pliers of temporary manpower. To this extent, and
insofar as the allegations cover the timeframe after
September 7, the Respondent has met its burden of
showing that these applications would not have been
activated thereafter even if those seeking work were
nonunion. See Wright Line, 251 NLRB 1083 (1980).
I am persuaded that based on the "placement fees,"
the Embassy Suites applicants, as unknown quanti-
ties, would not have been considered for employment
after T & C learned of Ameristaff's nullification.
Other than speculation, the General Counsel has of-
fered no cause to believe otherwise.18

___________________(footnotes)

17 During the ensuing week, T & C embarked on this inde-
pendent search. The campaign began with the placement of
ads in Minnesota newspapers and those published in surround-
ing States as well as Colorado, Louisiana, and Texas. Al-
though 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
intention-concerning applications garnered at the Embassy
Suites (G.C. Exhs. 13(a) - (k)) -to verify employment refer-
ences, but he did not do so because Ameristaff was off the
job the following week.

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58a

However, `this view does" not offer a complete de-
fense. `For, it fails to embrace earlier events, includ-
ing any peremptory 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 pending applica-
tions created an ambiguity, to be resolved against
the wrongdoer, warranting an assumption that the
alleged discriminates, if given a chance, would have
been hired, would have demonstrated proficiency, and
would have been retained directly by T & C after
Ameristaff's disqualification.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
September 7, T & C was hard pressed to hire licensed
electricians. At that time, operations were expected
to commence at Boise Cascade on Tuesday, Septem-
ber 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 opportunities for locating qualified personnel
was squeezed further. On that date, T & C learned
that Minnesota regulations precluded any operations
absent an electrician licensed in that State. As of
September 7, it had not secured a single electrician
meeting this requirement. Moreover, T & C's des-

___________________(footnotes)

19 This is not meant to imply that in the event of a finding
of illegality, all named discriminates would be entitled to
monetary redress. Thus, in that event, the Respondents could
cut backpay liability by demonstrating in an appropriate com-
pliance proceeding that fewer jobs were available than dis-
criminates.

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59a

perate posture at the  Embassy Suites was com-
pounded 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
 It is in this light that the curtailment of inter,
views on September 7 must be evaluated. The under-
lying facts, without question, demonstrate that the

___________________(footnotes)

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 expectations. 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 Ameristaffs September 7 interviews. He added that
if only one were hired, the actual work force could be ex-
panded beyond the 2 to 1 ratio. This refers to state licensing
procedures which permit. unlicensed personnel to obtain tem-
porary permits, pending completion of the certification proc-
ess, 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 essen-
tially relegated to paperwork and could not legitimately work
with the tools. On cross-examination, Defferding admitted to
telling a Board investigator 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.

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60a

Respondent elected not to consider applicants who
were present, and who offered themselves as avail-
able for work and qualified as licensed electricians.
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 afii.listed
labor organization. Thus, Sager relates that, after
the inter-views of Jones and Weseman, Buelow re-
ported that none of the others had appointment.
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 appointments. 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 sev-
eral 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 announce, for the
first time, that interviews would be extended only
to those with appointments. Sager concedes that the
announcement was made before anyone had accepted
employment and without knowledge that anyone pres-
ent had an appointment. Thus, at that juncture, he
was resigned to writeoff the Minneapolis trip as a
total failure. T & C remained unprepared to meet its
scheduled Boise-Cascade starting date, and merely
had 2 working days to accomplish what it had not in
the past 7.

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61a

 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 Han-
sen-this step was taken against applicants, who
together offered a broad source of ostensibly qualified
electricians, at least in part on antiunion considera-
tions.21 Thus, the onus was on the Respondents to
demonstrate that these applicants would not have
been interviewed and considered even if not union
members. See Wright Line, 251 NLRB 1083, 1089
(1990).
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 em-
ployees 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 sta-
tistic was furnished by Sager himself. When called
on to explain how he knew of his employees' union
status, Sager stated:

___________________(footnotes)

21 The existence of an untoward motivation is hardly im-
paired by suspicion that emerges from the Respondent's re-
cruitment strategy following termination of Malcolm Hansen
on September 14. Thereafter, the Respondent placed ads in
numerous newspapers within the State of Minnesota, but,
inexplicably, declined to use newspapers based in the Minne-
apolis area. G.C. Exh. 17. Imagination is not taxed by one's
attempt to reckon the reason for this omission.

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62a

 [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 prohibited union members from working
for nonunion employers," 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 competent elec-
tricians 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 door with equanim-
ity 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, includ-
ing that involved in in J. E. Merit Constructors, JD-
13-90, pp. 7-8. The observations there apply with
equal force to T & C:

[T]he Respondent considers itself. as among
we class of contractors which refer to themselves
as "merit employers." This is nothing more than
a "buzz" reference 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

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63a

 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 operat-
 ing nonunion m this industry is magnified. when
one considers that most industrial maintenance
work is more labor intense than customarily en-
countered in other forms of construction activity,
with the ratio of labor to material costs propor-
tionately higher.
  There can be little debate that any formal or-
ganization drive by an affiliated labor union
challenges this fundamental economic advan-
tage. It follows that indiscriminate hiring from
that source clearly would enhance that peril. In
this light, hiring decisions confronting the Re-
spondent . . . may be equated with a choice be-
tween suicide and survival.

Beyond the foregoing, the Respondent's explana-
tion for the termination of interviews is founded on
Sager's parole testimony as to intentions, not com-
municated 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 interview
anyone without a scheduled appointment and who
had not been screened by Ameristaff. Yet, as indi-
cated, 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.

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64a

In this regard, -however, Sager testified that, on
arrival at the Embassy Suites, he simply assumed
that all present had appointments." 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 Genera] Counsel attacks Sager's credibility on
a number 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 appoint-
ments. This raises a preliminary issue as to just
how many applicants were present when the inter-
view 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 repre-
sentatives of Local 292, arrived at the Embassy
Suites at about 8:30 a.m. on September 7, only to
learn that the representatives of T & C and Ameri-
staff had been delayed. He testified, with corrobora-
tion from Malcolm Hansen, that at about 11 a.m.,

___________________(footnotes)

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 inter-
views.

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65a

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 turnout. 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 inquiry as to whether any such condition
had been met. Apparently, to diminish this contra-
diction, Sager would have me believe that, though
pressed for time,.25 he never saw Buelow's list (R.

___________________(footnotes)

23 In its posthearing brief, T & C characterizes the appli-
cants as "intruders." However, the interview team did noth-
ing to suggest who was, and who was not welcome until union
affiliation emerged. In light of the above credibility resolu-
tions, 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, credibility resolutions, though based on my firm
impressions are not entirely consistent in their cases. All
struck as a bit too flexible with truth, willing to bend and
improvise to strengthen or cover weaknesses in their respec-
tive 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 mem-
bers would have appeared.

25 The interview team's departure for Minneapolis that
morning was delayed about 2 hours due to fog. Sager testified

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66a

Exh. 10), or asked Buelow who, was scheduled, arid,
thus, was unmindful that Jones had no appointment.
Buelow had actually scheduled seven interviews.
Sager testified that on the flight to Minneapolis,
Buelow advised him that these were scheduled at 20-
minute or one-half hour intervals. Obviously, if all
showed up, simple math indicates that the interview
team would be hard pressed to make it to the Minne-
apolis airport by 3:30 p.m., let alone return to Ap-
pleton 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 appointments by explaining that those lacking
them would not have been prescreened by Ameristaff,
and he did not wish to interview those who had not

___________________(footnotes)

that a "critical" manpower meeting, affecting 37 different
jobs, had been scheduled 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 evi-
dence that it was scheduled or held was totally lacking. Al-
though Sager testified that the meeting was fixed, timewise,
taking place every Thursday at about 3:30 p.m., no explana-
tion 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.

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67a

gone through this process. He denied knowledge,
however, of what was entailed in the prescreening.26
In fact, the prescreening format was a simplistic,
handwritten system, designed for implementation by
an Ameristaff clerical employee who would take calls
from those responding to newspaper ads. In con-
trast, the applications 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 pre-
screening results were ever communicated in any
form to either Sager or Defferding. Moreover, Jones
obviously was not prescreened and no such require-
ment was mentioned in his case. Indeed, Buelow tes-
tified that Sager said nothing about whether he
would interview people without appointments until
after Buelow had made this report some of the ap-
plicants were union. In my opinion, Sager's testi-
mony concerning prescreening was yet another false
plank in his attempt to structure an explanation dis-
associating the sudden termination of the interview
from disclosure that the waiting applicants were
union members.27

___________________(footnotes)

26 G.C. Exh. 13 (C).

 27 It is difficult to accept that Sager would insist on pre-
screening without knowledge of the areas probed in that
exercise. I reject Sager's testimony that T & C neither solic-
ited, nor was aware that Ameristaff was screening prospects
along union lines. I would also note that T & C has attempted,
albeit unartfully, 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 inquire into
an applicant's union preferences. At the same time, however,

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68a

With the collapse of Sager's credibility, it follows
that the interviews were terminated when T & C re-
mained at "square one," with no appreciable leads
to a single Minnesota journeyman. Though Sager
was understandably "anxious" to man this job, this
objective was displaced by a more compelling 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 in-
ference generated under the General Counsel's case-
in-chief. Accordingly, except in the case of Jones,28

___________________(footnotes)

Sager admittedly told Buelow that the electricians had to be
willing to work for a merit shop employer. Yet, the Respond-
ent in its post-hearing 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. [Em-
phasis added.]

This is an "eye roller" of the first order. Could Buelow, who
equated 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 character-
ized T & C's starting rate as an "insult." However, he denied
stating specifically that he would not work for that rate. Al-
though 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 con-
tacted, nor received contact from T & C or Ameristaff, there-
after. 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 conse-
quence of the September 7 interview even if not allied with

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69a

it is concluded that the Respondent has failed to dem-
onstrate by credible evidence that those named in the
complaint, who filed applications.29 would not have
been interviewed and considered even if unafiliated
with Local 292. Accordingly, Respondent T & C vio-
lated Section 8(a) (3) and (1) of the Act by this
peremptory conduct.

(2) Interference, restraint, and coercion

(a) By Buelow

The complaint alleges that the Respondents violated
Section 8(a) (1) by Buelow's interrogation of Em-
bassy Suites applicants as to whether they were look-
ing for union work. In support, Priem testified that
Buelow collected the completed applications, but,
after about 15 minutes, he returned stating, "Are

___________________(footnotes)

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 Char-
trand's name and address, but observes that there was no
follow-up 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 directly, replying, "I
had worked for Muska [a union contractor that year or the
year before." It was my impression that Chartrand was testi-
fying from deduction, rather than what he actually told
Buelow. HIS testimony was unreliable, and, accordingly, un-
like those filing applications, there is no evidence that either
T & C or Ameristaff had any basis for distinguishing Char-
trand from Weseman, who acted on his own, quite independ-
ent of any union. Thus, the General Counsel, in his case, has
failed to identify this latecomer with others denied interview
on union-related grounds.

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70a

you looking for all union work?" Malcolm Hansen's
initial testimony describes the inquiry as, "Are YOU
men interested in union work?".30
 Buelow denied that he raised the "union-nonunion"
issue, claiming that it was the applicants that ques-
tioned him' as to the existence of union work. He
claims that he replied to these inquiries by stating,
"we do have both types of contractors, however, the
people that were here today were representatives of
Town and Country Electric and they were interview-
ing 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 curi-
osity was coercive. The failure by the General Coun-
sel to analyze and cite precedent in conjunction with
what, at best, presents a thin, borderline issue is in-
excusable.31 Without benefit of guidance, it is my

___________________(footnotes)

30 The General Counsel's witnesses were not entirely consist-
ent. 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 ele-
ment of interrogation.

31 Region 18 apparently gave a great deal of attention to
certain evidence uncovered during the investigation which
triggered the 8(a) (1) allegation in this case. Legally and
factually, these issues demand the same degree of attentive-
ness on the part of the undersigned as the other, remedially
robust issues in this case. Here, counsel for the General
Counsel filed a 43-page brief, a document, virtually useless to
any reasoned evaluation of the Government's position con-
cerning the numerous independent 8 (a) (1) allegations. Ap-
parently the Charging Party assumed that the `General Coun-

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71a

view that, in context, the inquiry as to the applicants'
preferences would have no tendency to impede pro-
tected rights. Earlier, the jobseekers, who were ac-
companied by Local 292 business representatives,
and who obviously were acting jointly to further in-
stitutional 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 pressure from
an attempt to clarify their preference for union or
nonunion work. Rossmore House, 269 NLRB 1176
(1984).

___________________(footnotes)

sel would do a better job in this regard, for it specifically
relies on the General Counsel's "representations and argu-
ments" on this issues. It is true that the General Counsel's
narrative discussion imputes conduct to management repre-
sentatives 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, 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 com-
plaint incorporates multiple counts of Sec. 8 (a) (1). The
administrative process could be benefitted through the simple
task of passing this information on so that the General Coun-
sel's position might be understood, and the 8(a) (1) allega-
tions 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.

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72a

The complaint also alleged that Buelow, still at the
Embassy Suites violated Section 8(a) (1) by telling
applicants that they would be employed "only at
union projects and . . . not . . . at nonunion proj-
ects." 32 This allegation is apparently based on testi-
mony of Priem and Hansen. Priem describes Buelow
as stating that Ameristaff had union and nonunion
work and that the, applications taken at the Embassy
Suites would be placed on file until the union work
came in. Priem's preheating affidavit reflects that
after he asked Buelow what would happen to the ap-
plications, the latter simply replied that they would
be filed "for future job opportunities." To this Priem
replied, "I think I know what file they will go into."
Thus, the affidavit omits the union/nonunion dicho-
tomy. (R. Exh. 2.) As was true there, Priem's ac-
count given at the hearing plainly amounted to his
interpretation of Buelow's remarks, rather than what
was actually 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 appli-
cations 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 viola-
tion. The differences, together with my lack of com-
plete confidence in Hansen and Priem, lead me to

___________________(footnotes)

32 The failure to brief the 8 (a) (1) allegations in meaning.
ful fashion has produced an esoteric game of mix and match.
The degree of guesswork involved is suggested by the Gen-
eral Counsel's abstract comment that the remark covered by
this allegation constitutes an unlawful "promise."

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73a

give the Respondents benefit of the doubt and the
8(a)(1) allegation in this respect is dismissed.

     (b) By Ron Sager

The complaint alleged that the Respondents vio-
lated Section 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 appoint-
ments would be placed in a file for employment 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 alienation. Yet, no attempt is made
to delete it. Apparently, 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 Gen-
eral 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 dis-
tinct incidents.
The first derives from a colloquy between Priem
and counsel 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 signatory people as per our customer on this
project. [Emphasis added.]

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74a

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 whether 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 nonunion contractors, rather than an absolute
ban, and hence the statement is considered fair argu-
mentation within the purview of Section 8 (c}.
The third derives from Hansen's employment in-
terview. 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 conversation to the
effect that they couldn't have union signatory people
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 interview. Accordingly, any
8(a) (1) allegation based on this incident is dis-
missed.33

___________________(footnotes)

33 Recently, the Board appears to have hesitated over possi-
ble 8(c) protection for antiunion argumentation founded on
customer preferences. See Harrison Steel Castings, 293 NLRB

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75a

The complaint also alleges 8(a) (1) allegations on
grounds that Sager: 
                
  (i) threatened that "an applicant for' employ-
ment 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 follows:

  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 basically 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 1 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

___________________(footnotes)
                                                
1158 (1989). The General Counsel, having failed to analyze
the issue, or cite any authority whatever, again, in context
of a debatable issue, has dumped its own responsibility as an
adversary on the administrative law judge.

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76a

 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
confident [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 volunteered 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 payroll.
He denied that anything was said at that time con-
cerning 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

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77a

it. ".34 Defferding testified that, once disclosed, the
only comment concerning Hansen's membership per-
tained 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 confidentiality. He also denied
that Hansen would `be "required" to drop union mem-
bership before going on T & C's payroll. He denied
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 impeccable 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 desperation, with knowledge of
his union history. Prior to his interview, Sager and
Defferding were alerted to a possible union attempt to
infiltrate the hiring process, and, between interviews,
Hansen was observed cavorting with his union "bud-

___________________(footnotes)

34 Defferding was, perhaps, the least impressive witness.
There are many reasons why I have great difficulty entertain-
ing the notion that T & C was indifferent to union affiliation.
For reasons already given, I have difficulty accepting that
T & C operatives were unaware of the content of Ameristaff's
screening process. Moreover, prior to this interview, Buelow
reported that the presence of union members might well con-
stitute a threat to the recruitment process, a development
which would arouse strong curiosity as to possible involve-
ment 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.

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78a

dies." .35 In this light, probability leads me" to believe
the testimony that T & C would have finessed the
union issue, rather than address it with the heavy-
handedness 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

___________________(footnotes)

35 Hansen's interview was conducted in two parts. Defferd-
ing testified that, during the interval between those meetings,
he observed Hansen talking with his union "buddies." He
claims that, for this reason, when Hansen returned, Defferd-
ing 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 "buddies" 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, Def-
ferding 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 toward "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.
                   
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79a

of Local 292 for 28 years and a licensed electrician
for about 18 years. He was not a paid union or-
ganizer, 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
testified that they elected to give Hansen, who al-
legedly stated that he had a master's license.36 an op-
portunity to work. Hansen accepted at $15 hourly
and $25 daily per diem.
Though interviewed and selected for hire by T & C
officials, technically, Hansen was retained on Ameri-
staffs payroll 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

___________________(footnotes)

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 therewith, Defferding testified that Hansen was
given T & C's $16 rate for master electricians at the inter-
view. This is inconsistent with the $15 rate documented in
G.C. Exh. 5 (b), the employment contract between 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, Han-
sen 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 reflects 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

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80a

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 au-
thority 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 per-
formance on that job, so as to confirm that union
considerations where [sic] not involved.
The General Counsel's contention that Hansen was
terminated on proscribed grounds centers on undis-
puted testimony that, during his brief 3-day tenure,
Hansen flaunted his union membership, while engag-
ing in overt, repetitive efforts to organize 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 contumacious flair, since manifested by Hansen
in the face of alleged instructions that he cease all
union activity. These instructions are among a series
of independent 8(a) (1) allegations naming Smith-
back 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

___________________(footnotes)

by it, naming Ameristaff as his employer. The letter is cumu-
lative as Hansen's union sympathy, and T & C's knowledge
thereof is a given.

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81a

take to get him to quit discussing unions and to sup-
port the Company. The General Counsel implicates
Ron Sager in this coercive pattern through allegation
that he too prohibited Hansen from discussing or en-
gaging 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 di-
rections to the "Arrowhead Lodge" in International
Falls.38
T' & C's onsite personnel at Boise Cascade during
Hansen's tenure was limited to Project Superintend-
ent 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

___________________(footnotes)

38 Smithback testified that he actually gave the directions
o Hansen on this date, while telling him that he would have
`co 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 men-
tioned repeatedly. Defferding testified that, when hired, Han-
sen 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.

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82a

-stressing his union activity and the Respondent's re-
action thereto, and T & C attempting to discredit
Hansen's competence as well as performance during
this period. My findings in this connection are sum-
marized below.
Tuesday, September 12. This was T & C's first
day on the job. According to Smithback, the crew
arrived later than intended. After the unloading of
tools, another delay was encountered because Boise
Cascade had not laid out the materials as promised.
Around noon, State Inspectors Bob Johnsen and
Gordon Oslin met with Smithback in the crew's pres-
ence.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 exceeding the re-
quired ratio of licensed to unlicensed personnel.
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 informed that Hansen was employed by a Amer-
istaff and not by T & C. Thus, T & C's witnesses
claim that Hansen reported this at that time. For

___________________(footnotes)

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 performed prior to the arrival of the
inspectors. He claims that they did not appear until late
afternoon.

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83a

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 company Ameristaff and I don't
think they can be here doing that.40

In response, Johnsen, according to Smithback, indi-
cated that the inspectors were not sure of the ruling
covering that situation, 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 inspectors as an employee of T & C. Inspector
Johnsen, an apparently disinterested witness, corro-
borated Hansen. He testified that Smithback identi-
fied 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 employ-
ment." Contrary to T & C's witnesses.41 Johnsen de-
                                                  
___________________(footnotes)

40 Mike Grow, Randy Reinders, and Tom Steiner would later
corroborate 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 fore-
shadows inherently questionable accounts 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.

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84a

nied 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 direc-
tion, looks like should have a little more money.

___________________(footnotes)

42 I credit Hansen and Johnsen. Apart from the latter's dis-
interest, I find support for their accounts in testimony by
Sager that he did not learn that there was a question concern-
ing the use of "temporary" or third party employees on the
Boise-Cascade job until much later when he received a mes-
sage from Robert C. Stephenson, T & C's vice president. How-
ever, Sager and Smithback confirm that they participated in
a telephone conversation on the heels of the conference 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 indi-
cates, would not have known its legal ramifications. John
Quinn, the executive secretary of the Minnesota State Board
of Electricity, testified, without contradiction, that he in-
formed Stephenson on September 11, that he had "advance
notice" that T & C planned on hiring through an employ-
ment agency, and that Stephenson 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 electri-
cal 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.

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85a

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 dis-
pute 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 Hansen, Smith-
back who heard and was unhappy with Hansen's re-
marks, allegedly instructed: "I don't want you talk-
ing about unions on the job, at the cabin or anything.
I don't want Steiner and Reinders to hear it. I just

___________________(footnotes)

43 Steiner testified that the only time Hansen mentioned his
earnings 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 unre-
liable witness, whose testimony struck as a pat, finely honed
attempt to place meat on the bones of Respondent's case,
whenever he could and with repeated exaggeration and dis-
regard 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
Cascade. 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.
                 
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86a

don't want to hear it. That's it." Hansen stated that
he would not comply.44
 Sager testified that on the afternoon of September
12, he received a call from Smithback who was un-
happy with the fact that Hansen was telling the other
workers on the job that he earned more than Smith-
back. Sager suggested that the latter call Defferding,
while indicating that he should avoid upsetting
Hansen because he was needed. Sager added that
Hansen had a gun at their head, requiring respect for
his demands.
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

___________________(footnotes)

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 admo-
nition 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 inspectors left, not much work got done because
of the dialogue that ensued in consequence of Hansen's claims
for more money and authority based on the licensing problem.

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87a

work done. He was interrupting them, consist-
ently talking, would not allow them to proceed
in a fashion to which they were accustom to
working.
  [A]s they set up a scaffold, placed pipe on it
and then were about to take clamps to the top of
the scaffold 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
complained 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, together 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 measure-
ments, 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, Hansen lacked familiarity
with the machine, a conclusion deduced 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 portaband saw, were not straight,

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88a

and that most of the cutting was performed by Han-
sen. He also claims that he, observed Hansen, rock-
ing the band saw, a practice which could break the
blades, and instructed him as to the proper tech-
nique. 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. Reind-
ers confirmed that this short length. was pursuant to
a measurement originally made by Steiner, then re-
measured 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 drilling 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 available
drill bit by the end of the first day.47

___________________(footnotes)

46 The attack on Hansen's competence included reference to
the latter's position that bent conduit was subject to appro-
priate 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
Hansen's method of handling the drill. Hansen, however, de-
nied 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.

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89a

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, be-
cause, precisely as Smithback had related, Hansen
needed: something to do.48 When examined further
on this point, Steiner offered that Hansen really pre-
ferred this task to other work that he might have
done. Steiner ultimately agreed that the accumula-
tion of too many parts and tools on scaffolding would
tend to create a safety hazard.
Reinders also spoke to Smithback that day, re-
porting 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 hard-
ware store to purchase additional blades that Tues-
day 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 performance and that he was not meeting
expectations as "he was unsatisfactory, his perform-
ance was unsatisfactory." Smithback claims that, on
September 12, he made an entry on the daily fore-
man's diary citing Hansen with work that "does not
come close to being satisfactory in the production

___________________(footnotes)

48 As noted in T & C's posthearing brief, Hansen, in addi-
tion 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.

---------------------------------------- Page Break ----------------------------------------

90a

end." There was no reference to damaged materials,
tools, or parts. (R. Exh. 12(a).)49
 Wednesday, September 13. Apart from the as-
sault on Hansen'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 an-
nounced specifically his aims on behalf of the IBEW.
First, Hansen testified that in the morning, Area
Inspector Gosland approached him on the jobsite re-
questing that he `identify his employer. Hansen, in
Smithback's presence, replied: `Well, I'm not posi-
tive 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 & Country's tools
and Town & Country employees are . . . working
off my license." According to Hansen, Smithback in-

___________________(footnotes)

49 Smithback relates that were it not for the licensing prob
lem, 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 inappropriately 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 perform-
ance. 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 perform in a workman-
like manner.

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91a

formed, Gosland that Hansen was.. working for
T&C.50     
        
Later, during an afternoon break, Hansen an-
nounced, for the first time, that he was on the project
to organize for the Union, Smithback, Steiner, and
Reinders were present. According 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 an-
nouncement, 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:

___________________(footnotes)

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 con-
versation with Hansen. The source was a cryptic message
from Bob Stephenson. Sager first places this as having oc-
curred that "morning," but later would testify that this
message was not received until 4:30 p.m. In this connection,
it is noteworthy that John Quinn, the state electrical official,
testified that when, on September 11, he instructed Stephenson
not to use a labor service, Stephenson indicated that adher-
ence -would be no problem. Quinn added that, in his presence,
Stephenson telephoned his office, overhearing Stephenson in-
struct 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' Stephenson 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.

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92a

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, Smith-
back 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 approached 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
      
___________________(footnotes)

51 If Smithback had made the report he claims to have made
on Tuesday evening, this exchange would have been old news
and repetitive.

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93a

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
telephoned 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 reported 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, hang-
ing 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 Hansen's declaration: "I'm
going to not stop talking about the union."53  Sager
alleges that he reacted as follows:

___________________(footnotes)

52 Here again, the criticism did not include references to
the broken tools and scrapped parts, or the basic charge of
"poor workmanship" attributed to Hansen by Steiner and
Reinders.
53 Smithback testified that Hansen had also made a com-
ment to him on Thursday morning suggesting that Hansen

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94a

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 what-
  ever.

The General Counsel in this respect raises the ques-
tion 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 ex-
pressed intention 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 return-
ing from work that day, Hansen relates that Smith-
back, in presence of either Steiner or Reinders, com-
plimented 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, Smith-

___________________(footnotes)

was under the impression 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.

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95a

back 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 attrib-
uted to him by the complaint, Smithback was sharply
critical of Hansen's performance this day. First he
states that his other electricians complained that
Hansen was rough with the manual and power tools.
In one instance, Tom Steiner accused Hansen of
breaking five blades on a portable band saw due to
improper use. He allegedly broke most of the drill
bits T & C had at the site. Smithback claims that
he personally observed Hansen reject proper practice
by using a hammer to bang a piece of pipe into a
clamp on a "rigid 300 mule machine."
In addition to the foregoing, Smithback states
that :

Throughout the day on Wednesday I did no-
tice that he was speaking with people an extraor-
dinary 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 saying, "Man, we

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96a

should have been farther than this, we just can't
get anything clone. Everything Mick cuts he cuts
crooked." They had to recut, rebend, redo, most
everything he had done and okay, he was talk-
ing 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 criticizing Hansen's performance on Wednesday.
He avers that he, Reinders, and Hansen were in-
stalling 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, distracting
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 conversation with Boise. Cascade em-
ployees. 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

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97a

bathroom-in fact one time Randy [Reinders]
had gone to the bathroom and came back and I
had to ask him if he had seen Malcolm and he
said "no." And then we were waiting and wait-
ing 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 therefore, in addition to his talking
about the Union, and his absence from the work area,
Smithback was alerted to specific allegations that
would plainly demonstrate Hansen's faulty workman-
ship.

Reinders was also called to comment on Hansen's
performance 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 re-
markable resemblance to the testimony of Steiner:

On Wednesday, [Hansen's] performance was
negligible, didn't really do much of anything
but talk to people and disappear from the im-
mediate site . . . for periods of time.

The subject of these conversations, according to
Reinders, was union. Moreover, their disruptive ef-
fects was suggested by Reinders' testimony that he
had to beckon Hansen to return to assist other mem-
bers 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

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98a

by telling him "he'd like to see a little more work
and less talk." 54 According 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 Wednes-
day, Hansen was operating the 300 threading ma-
chine, 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 adjustment by hand.55 This allegedly
caused improper threading by tearing metal chunks
from the machine, again causing rework. Reinders

___________________(footnotes)

54 Reinders, who like the rest of T & C's witnesses struck
as heavily biased and totally lacking in objectivity, first cor-
rected himself when he initially placed this appeal on Wednes-
day, 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 observe Hansen take a hammer to the unit,. When ques-
tioned 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 ad-
mitted 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.

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99a

admits that Hansen fixed the machine himself, an
effort which took a considerable amount of time."
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. 1 wish I
could channel the energy he puts into talking
into productive work. All of his talking is slow-
ing down the job.57

Sager testified that he believed that on Wednesday,
September 13, he called Buelow to report that Han-
sen was being evaluated for productivity and safety

___________________(footnotes)

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 conduit 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 par-
ticular component, Hansen was guilty of improper 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 termi-
nation.
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, bordered on willful
sabotage.

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100a

violations. Buelow testified that the only reason
given him concerning termination of Hansen was
T & C's inability to use Ameristaff or a temporary
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 consistently reemerges in documentation, and
reasons expressed by Sager and Defferding for Han-
sen'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 sec-
ond during the noontime 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 terminatiom
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. After-
wards, 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."

___________________(footnotes)

58 The access to Boise Cascade was under interdict of union
pickets, who apparently were protesting the presence of an-
other nonunion 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
Limiting union activity. However, he admits that at the time,

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101a

It is undisputed that Hansen did call Sager. At
this time, he claims to have informed Sager of Smith-
back's sellout inquiry. Sager denied any interest in
giving anything to persuade Hansen to abandon or-
ganization activity.60 Sager then switched topics,
turning to reports about Hansen's job performance.
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

___________________(footnotes)

Hansen told him "right then and there" that he had no inten-
tion of stopping talking 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 assumed 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 curious, 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
Hansen. 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 separate 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 nor-
mal 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.

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102a

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 situation 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 at-
tempted 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 described Reinders as so up-
set, he had packed his bags, threatening 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.
 
___________________(footnotes)
            
63 Hansen testified that he never possessed authorization
cards on this jobsite.

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103a

Hansen, according to Smithback, continued pushing
"little white cards for them to sign." The men re-
acted: "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 speak-
ing for them as well. Steiner confirmed that Hansen
"just kept on going." At this juncture, Hansen al-
legedly stated, "No, I will not stop talking bout the
union." Grow testified, with support from Smith-
back, Reinders, and Steiner that he then asked Han-
sen 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 some-
thing else, fishing or something." Nonetheless, Han-
sen 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 [sic] was upset to the
point of violence in consequence of Hansen's actions
during the lunchtime incident. He described the prov-
ocation as follows:

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104a

 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 feel-
ing that I got was like he sorts 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 wallet, 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
information on me." In fact, Reinders was provoked
to the point of being ready to "rap . . . [Hansen]

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105a

right up side the head," thus, freely admitting that
he was ready to punch Hansen because of his repeti-
tious 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 any-
more." 65

After the noontime incident, Sager's earlier criti-
cism of Hansen provoked a confrontation between
Hansen and Smithback. Thus, in the presence possi-
bly of Denny Moran and Everett Hall, both employed

___________________(footnotes)

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 previously mentioned this experience to Han-
sen, 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 untoward con-
duct 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 an-
nouncing 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-Cascade 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 com-
muted to projects spending nights at home. Admittedly, his
wife was not thrilled with this development.

---------------------------------------- Page Break ----------------------------------------

106a
by Boise Cascade.66  Hansen relates that the following 
ensued:

I said to Rod, "I understand you are not satis-
fied 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 people'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, im-
mediately 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, where-
upon Sager instructed him to call Buelow over at
Ameristaff. He did, with Buelow, stating as follows:

___________________(footnotes)

66 Reinders, Steiner, and possibly Mike Grow were also
present.

67 Smithback admits that Hansen accused him of lying on
the productivity 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 recall whether Smithback had told him that Hansen's
productivity problem was limited to the above incident.

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107a

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 refusal to hire him, a fact or
facts, which Hansen states remain unknown to him.
Sager disputes this, but claims to have described un-
improved "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 pay-
roll.69 T & C's termination of its agency contract
with Ameristaff, was impelled by Minnesota law, and

___________________(footnotes)

 69 The fact that Hansen took this job to further Organiza-
tional interests 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 appearances, he was dependent
financially on employment as a journeyman electrician in the
construction industry. The fact that, in connection with his
employment at the Boise-Cascade site, he was reimbursed 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 Han-
sen's intention to organize was not incompatible with his basic
employment needs and objectives 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).

---------------------------------------- Page Break ----------------------------------------

108a
 
was plainly legitimate. However, "the purity of mo-
tive 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 commitment
and where agency commissions considered against
other factors will not make that an unprofitable de-
cision. 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 concern-
ing T & C's posture with respect to union organiza-
tion. As a merit shop employer, it is dedicated to a
method of operation in the highly competitive con-
struction 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

___________________(footnotes)

70 In this light, it is understandable that Buelow, on being
informed of Ameristaff's termination, instinctively went to
the trouble of preparing paper work facilitating Hansen's
tranfer 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 continuation of a project depended
on such action.

72 Testimony on behalf of T & C that union affiliation was
a matter of no concern to the interviewers was so out of

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109a
  
no real dispute that on the second day of this employ-
ment, Hansen announced that he was a union or-
ganizer, and persisted in organizing on behalf of that
Union. On the heels of these purely verbal and non-
coercive efforts, Sager testified that he became con-
vinced that a decision had to be made on Hansen's
status when he received reports that employees were
offended claiming harassment and low morale. Fi-
nally, 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 in-
ference that union activity was at least part of the
motive for Respondent T & C's failure to place Han-
sen on its pay-roll, thus, in accord with Wright Line,
supra, placing the onus on T & C to demonstrate
that this would have taken place even in the absence
of Section 7 activity.73 T & C's numerous witnesses

___________________(footnotes)

comport with economic realities as to raise question as to
what else the defense might expect me to believe. This reac-
tion was hardly allayed by the observation by T & C's attor-
ney 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 tes-
timony that the effort to discourage his union involvement
was the subject of a variety of independent 8 (a) (1) viola-
tions. Thus, he testified that Smithback repeatedly stated
that he could not engage in union activity anywhere, and
threatened termination if he did so. Smithback, with cor-

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110a

attempted to substantiate that Hansen was a poor
worker, who failed to meet productivity standards,
and who failed to perform in a craftsmenlike man-
ner. "Its evidentiary ease was shifting, replete with
contradiction, - and in the end, furnished a strong
suggestion that union activity played an important
role in it 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 combi-
nation of highly biased witnesses.
Those responsible for eliminating Hansen allegedly
acted on reports from Smithback, who in large
measure was dependent on reports from Steiner and

___________________(footnotes)

roboration 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 circum-
stances. 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, attempted unlawfully to interdict Hansen's union activ-
ity in these particulars, but also inquired as to whether
Hansen could be bribed to cease his organizational efforts.
Yet, atthe same time, I did not believe Hansen's attempts to
implicate Sager in a prohibition on union activity. Thus,
Hansen testified that in two, separate telephone conversations
with Sager, the latter instructed him not to talk about the
Union. Sager denied having made the statements. In con-
text, it was unlikely that Sager would have made these re-
marks, considering what was know about Hansen at the
time of his hire, and after he had announced organization
as his goal. I credit Sager, and shall dismiss the 8(a) (1)
allegation involved.

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111a

Reinders.74 However, 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 incidents
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 discrepan-
cies. Smithback, who claims that, but for the licens-
ing 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 solely on the basis of ex-
cessive "talking." No reference is made to a con-
tinuing propensity to mishandle and damage tools
or to produce bad parts. The pattern continued on
Thursday. Steiner and Reinders once more accused

___________________(footnotes)

74 Steiner, an apprentice, and Reinders, a journeyman, who
could not qualify to take the Minnesota licensing exam be-
cause for lack of creditable experience, laid the foundation
for the attack on Hansen's workmanship. Hansen is an
experienced journeyman with many years in the trade. His
employment record does not suggest either a lack of com-
petence or that he was prone to be inefficient. In my opinion,
where possible, Hansen provided well reasoned explanation
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 incapable of refutation by Hansen, and
for that reason, beyond his ability to register clear and
straightforward denials.

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112a

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 expecta-
tions. 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 understand why these breakdowns in
Hansen's craftsmanship were given so little attention
at the time. The offenses were specific. They re-
flected serious failures in craftsmanship. They were
reported in timely fashion. Yet, the objective trial
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 "disharmony" as a triggering event.75

___________________(footnotes)

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

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113a

Indeed, well after the fact, Vice President Stephen-
son in his letter of October 23, merely described Han-
sen'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 employees 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 deliber-
ately to sabotage the job, one would think that these
alleged indiscretions would occupy the centerpiece
for objections to Hansen's employment. They obvi-
ously were afterthought, if not totally contrived.
The testimony of Sager concerning the triggering
circumstances is certainly more indicative of what
actually occurred than the testimony of Smithback,
Steiner, and Reinders. He testified that on Wednes-
day, September 13 "1 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 Sep-
tember 14, that Hansen's status came to a head. That
afternoon Sager received a telephone call from Smith-
back who reported that because of Hansen, Reinders
was "extremely nervous and upset" and he wanted
to leave the job immediately "for his own safety."
Reinders also mentioned that he was fed up "with

___________________(footnotes)

called and "mentioned 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 reports spawned by the.
subsequent lunchtime incident actually produced the final
judgment on Hansen.

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114a

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 pro-
union overtures made by Hansen during the noon
break. In consequence, Sager apparently sought out
Defferding, advising as follows:

[W]e've got to make a decision here, the guy is
affecting the morale of our people. I know that
a couple of our people were upset and one ex-
tremely agitated, he was getting a short fuse
and one of the guys felt intimidated 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 Smith-
back, stating "Hey, a decision has been made that
we are going to let Malcolm Hansen go from Ameri-
Staff. . . . 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 before informing Hansen.
In explaining the discharge to Buelow, according
to Sager's testimony the harassment issue went un-
mentioned. He claims to have told Buelow that, "the

___________________(footnotes)

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."

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115a

guy's really causing problems, he's wandering around
. . . we have low productivity from him . . . . he just
got his safety shoes today. . . [H]e's just not an
employee or potential employee that we would look
to be hiring." According to Sager, Buelow stated that
rather than create issues about productivity, he would
simply tell Hansen that "temporaries" had been
barred from the job.77
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 problem that Hansen was
causing on the job was admitted to be a "part of it."
According, to Sager the other factor was Hansen's
productivity, details of which he could recall. Sager

___________________(footnotes)

77 Buelow testified that it was on Wednesday morning, Sep-
tember 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.

With this information, Buelow claims that he instructed
his assistant "to cut an invoice" permanently placing Hansen
on T & C's payroll. This was countermanded later that after-
noon, when Sager informed 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 pro-
ductivity, 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 testi-
mony.

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116a

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 termination, 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 disap-
pointed 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 worksite 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 conjunction with a report from Smithback accusing
Hansen of disrupting the crew. In this connection,
the phrase "disharmony to the crew," is given a dif-
ferent meaning by Defferding than Sager. Thus, it
will be recalled that Sager attributed such a condition
to Reinders' complaints about Hansen's persistent and
aggressive attempts to foist the Union on coworkers.
In contrast, Defferding initially described Hansen's
wandering as the cause of this disharmony. On cross-

___________________(footnotes)

78 Although Defferding received Smithback's "foreman
diaries," they were not available to him until September 15,
after the termination.

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117a

examination, when Defferding was again given the
opportunity to describe how Hansen created dishar-
mony, 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 occasions. Ultimately,
Defferding admitted that later on Thursday, Smith-
back called back, recommending that Hansen be re-
moved because "it was no longer possible to run a
harmonious crew and still have Mr. Hansen on that
crew."
Smithback's reference to disharmony was far nar-
rower than Defferding's definition. He does not sug-
gest that it related to any conduct other than union
activity. Indeed, according to Smithback, Defferding
knew that the term was used to explain Hansen's
union activity during nonworking time. Thus, Smith-
back testified that Hansen, on Thursday, was begin-
ning to disrupt the crew "pretty heavily" while creat-
ing "disarmony." 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 discuss this incident with Mr. Defferding,
this lunch time on Thursday incident?
  THE WITNESS: Yes.
  JUDGE HARMATZ: Did you tell him the sce-
nario 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.

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 118a

 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 pushing 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 mis-
taken about that ?
THE WITNESS: No.

It was my distinct ingression that the term "dis-
harmony" more appropriately fit union activity, the
subject of Reinders complaints, than the variant sub-
jects that Defferding would place under that umbrella.
In this light, the attempt to redefine, diminish, or cast
aside the alleged disharmony is understandable. Sager
had previously testified that "disharmony" was a fac-
tor 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 attempts to organize them. Although
Smithback claimed that Hansen was "hounding and
badgering" the men, the testimony he offers simply
shows that Hansen repeatedly solicited 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 counseling those disturbed by, before condoning
adverse-action against, the. union protagonist.79
 
___________________(footnotes)
         
79 In a weak attempt  to associate the fears of the men with
violence apparently addressed to B.E. & K. at the site, Smith-

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119a

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 allegations against Hansen reflect
a consistent pattern of incompetence, they were given
feint attention by Sager, Defferding, or Stephenson in
describing the grounds for rejecting 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
preoccupied with the question of disharmony created
by Hansen's persistent efforts to push the Union.
Sager's testimony suggests that this was a triggering
event, while Defferding would engage in a conscien-
tious 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 observe Hansen
on Tuesday, September 12, claims that he would have

___________________(footnotes)

back acknowledged that Hansen had told the men that his
Union had nothing 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 postbearing brief, counsel for T & C appears to
have been led by imagination in arguing 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 sup-
ported by, this record.

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120a

terminated him at the end of that day for similar rea-
sons. 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 testimony 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. Moreover,
even with the hiring of replacement Ensign, Sager
testified that the need for qualified journeyman did
not end, for he relates that in the days that followed
Hansen's termination, T & C did not "know if we
were going to be able to man the job with licensed
electricians." During the following week, as he re-
lates: "The President of our Company was making
the decision . . . whether or not we were going to
continue at Boise Cascade or back out entirely."

___________________(footnotes)

80 A replacement was obtained, but not until after the deci-
sion to eliminate Hansen. Sager testified that, he was not
involved in the recruitment, 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 Ensign. On
Thursday, September 14, Defferding claims to have telephoned
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 be-
cause we had some other people coming on, that we need
somebody . . . with a license." B.E. & K. obliged and effective
Friday, September 15, Ensign was transferred from B.E. &
IL's payroll to that of T & C. Ensign was hired sight unseen,
solely upon B.E. & K's recommendation in this regard, and
apparently without independent basis for evaluation.

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121a

In my opinion, the defense in Hansen's case was
structured on a thinly veiled attempt to mislead as
to the true reasons for T & C's action, and, since
lacking in credible support, fails to rebut the inference
of unlawful motivation. Moreover, Sager's own testi-
mony, and the efforts by Defferding to shy away from
the noontime encounter, strongly suggests that the
outrage of coworkers concerning Hansen'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 sub-
stantiate by credible evidence that Hansen would have
been removed even if he had not engaged in organiza-
tional 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 mem-
bers 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 Respondent in this regard. They include alleged
interrogation of Kolling by Sager and Defferding, and
             
___________________(footnotes)

81 Local 343, like Local 292, has no jurisdiction over Inter-
national Falls. Its geographic sphere consists 39 counties in
southern and western Minnesota.

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122a

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 repre-
sentative. 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 call-
ing 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, instead stating that he had
operated as an "open shop" contractor 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
`ultimately stating: "why all the . . . union questions
because 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. Defferd-
ing stated that he would mail out an application after
Kolling furnished" a resume. Kolling advised that he
would do so.
Sager acknowledged that he participated in such
a conversation with Kolling. The latter identified him-
self as an electrical contractor. Concerning Kolling,
Sager. testified "I remember asking him what kind
of contractor he was . . . was he a residential, com-
mercial or industrial, licenses that he held, was he a

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123a

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 dis-
cussed the Boise-Cascade job, whereupon Sager put
Defferding on the phone.
Defferding testified that they first discussed Kola-
ing's industrial experience. Later, when union affilia-
tion arose, Defferding assertedly stated that T & C had
"no problems with that." Kolling was informed of
T & C's interest, and 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 allegation that T & C unlawfully declined
to hire him. According to Kolling, he soon realized
that any resume would include 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 applica-
tion, it was never received. Sager admits to this con-
versation, but claims that he suspected that Kolling
was trying to get something that he shouldn't so Sager
was "on his guard." During the conversation, Kolling
informed Sager that the September 20 conversation
had been taped and that he was concerned about
              
___________________(footnotes)

82 Kolling failed to relate that he ever submitted the resume.
According to his own testimony, Defferding told him to do so
before an application would be forwarded.

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124a

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 completed and returned.84
In my opinion, the General Counsel has failed in
this instance 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 inac-
tion. The probabilities support the testimony of
Sager,85 and I am convinced that an application was
duly forwarded, but never returned. The submission
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.

___________________(footnotes)

83 Kolling had two conversations with T & C representa-
tives. 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 evidence.
84Kolling's name appears on R. Exh. 11, a computer list of
all sent applications. The document indicates that his applica-
tion was mailed on September 22.
85 Kolling was not a persuasive witness and his uncorrobo-
rated testimony was an unsuitable basis for findings prejudi-
cial 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 him-
self as an employing enterprise, rather than an employee,
does not strike as inherently coercive. No rationale which
reasonably would support a finding of illegality in this con-
text has been offered. The 8(a) (1) allegations implicating
Defferding and Sager in proscribed interrogation are dis-
missed.

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125a

  c. Charles Evans

In September 1989, Evans was an unemployed li-
censed electrician and a member of Local 843. He
was contacted by his business representative, and told
to call the 414 telephone number which corresponded
to that appearing in the September 11 edition of the
Minneapolis Star Tribune (G.C. Exh. 4.) On Sep-
tember 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 Ac-
cording to Evans, she then said she would have
Buelow contact him later in the week.

___________________(footnotes)

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 rudimentary, for Evans'
account was uncontradicted and there is every reason to be-
lieve 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, in-
cluded inquiries concerning union status. In this light, the
testimony of Evans completes the circumstantial chain indi-
cating that he and Buelow were describing the same individ-
ual, 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 viola-
tive 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.

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126a

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 non-
union. 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 com-
plained that in his earlier conversation, Lorrie had
asked him illegal questions about his union affiliation,
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 position 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 related 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

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127a

engaged in, Evans stated, `Well I don't know if I'd be
willing to go up there and work under those circum-
stances." Evans was again asked if he would be will-
ing to take the job, but Evans again replied, "I don't
know if 1 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.
On cross-examination, Evans acknowledged that
he was concerned about reported violence at the
Boise-Cascade site, and that Sager attempted to as-
suage 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 member-
ship that discouraged him from accepting the job.
In this light, I credit Sager and Buelow, and con-
clude that Evans expressed disinterest in employment
at Boise Cascade, that no statements were made
concerning any nonunion policy 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) allega-
tion 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.

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128a

2. Respondent Ameristaff is the agent of Respond-
ent T & C for the purposes of soliciting job appli-
cants, arranging for the hire and completion of appli-
cations 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 Brother-
hood of Electrical Workers are labor organizations
within the meaning of Section 2(5) of the Act.
4. Respondent T & C on September 7, 1989, vio-
lated Section 8(a) (3) and (1) of the Act by refus-
ing to interview and consider for employment the
job applicants listed below because 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 activity 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.

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129a

8. Respondent T & C, on September 14, 1989,

violated Section 8 (a)(3) and (1) of the Act by
refusing to retain Malcolm Hansen because of his
union activity.
9. Respondent T & C did not, since September 13,
1990, refuse to employ Charles Evans, or from Sep-
tember 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 certain unfair labor practices, it shall be recom-
mended that it cease and desist therefrom, and take
certain affirmative action deemed necessary to ef-
fectuate 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 ordered to reinstate him
to his prior position and make him whole for earn-
ings lost by reason of the discrimination against
him.
Having found that the Respondent. violated Sec-
tion 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

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130a

it shall be "recommended that they be offered imme-
diate employment 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 discrimination against them.

Backpay due under the terms `of this Order shall
be computed on a quarterly basis as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and
shall be reduced by net interim earnings, with in-
terest computed as specified in New Horizons for the
Retarded, 283 NLRB 1173 (1987). All reinstate-
ment and backpay recommendations are subject to
the procedures discussed in Dean General Contrac-
tors, 285 NLRB 573 (1987), and Haberman Con-
struction Co., 236 NLRB 79 ( 1978}.
With respect to Respondent Ameristaff, with one
exception, all unfair labor practices found, occurred
outside the scope of its authority. The unlawful
discrimination and coercive conduct imputed to T & C
was effected by that firm at times and under condi-
tions where its authority was exclusive. 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 remedial 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 having a business rela-
tionship with the perpetrator of unlawful conduct.
Respondent Ameristaff committed a single act of
unlawful interrogation. In that connection, the find-
ings should be sufficiently instructive to make entry
of a formal order against Ameristaff a needless ex-
ercise. The incident is remedied adequately through

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131a

the Order recommended in the case of T & C For
this reason, and considering the nature of this singu-
lar 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
recommended .87   

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 con-
cerning their union membership.
(b) Instructing employees to cease engaging in
union activity during nonworking time, and threat-
ening them with discharge if they do not comply.
(c) Asking employees whether they could be
bribed to refrain from engaging in union activity.
(d) Discouraging union activity by refusing to
hire, terminating, or in any other manner discrim-
inating against employees 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 guaranteed by Section 7 of the Act.

___________________(footnotes)

87 If no exceptions are filed as provided by' Sec. 102.46 of
the Board's Rules and Regulations, the findings, conclusions,
and recommended Order shall, as provided in Sec. 102.48 of
the Rules, be adopted by the Board and all objections to them
shall be deemed waived for all purposes.

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132a

 2. Take the following affirmative action necessary
to effectuate 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 discrimination 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 reinstate-
ment to his former position or, if nonexistent., to a
substantially equivalent position, and make him
whole for losses sustained by reason of the discrim-
ination 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 copy-
ing, all payroll records, social security records, time-
cards, 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 International Fails, Minnesota, copies of the at-

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133a

tached notice marked "Appendix." `8 Copies- of the
notice, on forms provided by the Regional Director-
for Region 18, after being signed by the Respond-
ent's authorized representative, shall be posted by
the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within
20 days from the date of this Order what steps the
Respondent has taken to comply.

___________________(footnotes)

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."

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 134a

   APPENDIX

   NOTICE TO EMPLOYEES
   POSTED BY ORDER OF THE
   NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government
The National `Labor Relations Board has found that
we violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
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 pro-
tection
  To choose not to engage in any of these pro-
tected concerted activities.

WE WILL NOT coercively interrogate job appli-
cants concerning their union membership or prefer-
ence for union or nonunion work.
We WILL NOT instruct employees to cease engag-
ing 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 refus-
ing to hire, terminating, or in any other manner dis-
criminating 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 in-
terfere with, restrain, or coerce employees in the

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135a

exercise of rights guaranteed them by Section 7 of
the Act.
WE WILL offer immediate employment to the em-
ployees listed below in positions for which they ap-
plied or, if nonexistent, to substantially equivalent
positions, and WE WILL make them whole for losses
sustained by reason of the discrimination 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 re-
instatement to his former position or, if nonexistent,
to a substantially equivalent position, and make him
whole for losses sustained by reason of the discrim-
ination against him, with interest.

WE WILL remove from our files, delete, and ex-
punge any and all reference to the unlawful termi-
nation of Malcolm Hansen, notifying him that said
action has been taken, and that said termination will
not be used against him in the future.

TOWN & COUNTRY ELECTRIC, INC.

* U.S. GOVERNMENT PRINTING OFFICE; 1994   267147  20010

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No. 94-947

In the Supreme Court of the United States

OCTOBER TERM, 1994

NATIONAL LABOR RELATIONS BOARD, PETITIONER

V.

TOWN & COUNTRY ELECTRIC, INC., AND 
AMERISTAFF PERSONNEL CONTRACTORS, LTD.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD

DREW S. DAYS, III
Solicitor General

Department of Justice
Washington, D.C. 20530
(202)514-2217 

---------------------------------------- Page Break ----------------------------------------

     QUESTION PRESENTED

Whether the National Labor Relations Board
reasonably determined that a person applying for or
holding a job with an employer that he intends to
organize, and who will be compensated by a union for his
organizational activity, is an "employee" within the
meaning of Section 2(3) of the National Labor Relations
Act (29 U.S.C. 152(3)) and therefore protected against
discrimination on account of his union activity and
affiliation.

(I)

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II

   PARTIES TO THE PROCEEDINGS

In addition to the parties listed in the caption, the
following was a party to the proceedings in the court
below: International Brotherhood of Electrical Workers,
Local 292.

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      TABLE OF CONTENTS
                     
Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statutory provision involved . . . . 2
Statement . . . . 2
Summary of argument . . . . 10
Argument:
The Board reasonably determined that a paid union
organizer applying for or holding a job with an employ-
er whom he intends to organize is an "employee" under
Section 2(3) of the National Labor Relations Act   . . . . 13
A. The text and history of the Act support the Board's
longstanding determination that a paid union
organizer who applies for work for hire or holds
such a job is an "employee" protected against anti-
union discrimination, and that determination is
entitled to deference . . . . 13
B. A worker for hire whom a union pays to organize
  an employer's work force does not "abandon" or act
  in conflict with his duties to the employer . . . . 23
Conclusion . . . . 37
     
TABLE OF AUTHORITIES

Cases:

Abbey's Transp. Services, Inc. v. NLRB, 837 F.2d 575
(2d Cir. 1988) . . . . 33
Allied Chemical & Alkali Workers v. Pittsburgh Plate
Glass Co., 404 U.S. 157 (1971) . . . . 16, 17
American Hosp. Ass'n v. NLRB, 499 U.S. 606 (1991) . . . . 17
Anthony Forest Products Co., 231 N.L.R.B. 976
(1977) . . . . 14, 26
BASF Wyandotte Corp. v. Local 227, Int'l Chemical
Workers Union, 791 F.2d 1046 (2d Cir. 1986) . . . . 23

(III)

---------------------------------------- Page Break ----------------------------------------
                 
 IV
       
Cases-Continued:

Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298
(1977)  . . . . 14
Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978)  . . . . 13, 26
Briggs Manufacturing Co., 75 N.L.R.B. 569 (1947)  . . . . 22
Broussard v. Caci, Inc Federal, 780 F.2d 162
(1st Cir. 1986)  . . . . 30
Buian v. J.L. Jacobs & Co., 428 F.2d 531 (7th Cir.
1970)  . . . . 30
Chevron U.S.A. Inc.,v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984)  . . . . 13
Columbia Engineers Int'l, 249 N.L.R.B. 1023 (1980)  . . . . 14
Crystal Linen & Uniform Service, Inc., 274 N. L. R. El.
946 (1985) . . . . 32
Dee Knitting Mills, Inc., 214 N.L.R.B. 1041 (1974),
enforced mem., 538 F.2d 312 (2d Cir. 1975)  . . . . 14 
Edward G. Budd Manufacturing Co. v. NLRB,
138 F.2d 86 (3d Cir. 1943), cert. denied,
821 U.S. 778 (1944)  . . . . 26
Ermert v. Hartford Ins. Co., 659 So. 2d 467 (La. 1990)  . . . . 25 
Escada (USA) Inc., 304 N.L.R.B. 845 (1991), enforced
mem., 970 F.2d 898 (3d Cir. 1992)  . . . . 15
Escada (USA) Inc. v. NLRB, 970 F.2d 898 (3d Cir.
1992)  . . . . 9
Fall River Dyeing & Finishing Corp. v. NLRB,
482 U.S. 27 (1987)  . . . . 13 
Florida Power & Light Co. v. International Bhd. of
Electrical Workers, Local 641,417 U.S. 790
(1974)  . . . . 19,20,22,31
Friendly Ice Cream Corp. v. NLRB, 705 F.2d 570
(1st Cir. 1983) . . . .  33
Giant Food Markets, Inc., 241 N.L.R.B. 727 (1979) . . . . 22
Gilbert v. Tulane Univ., 909 F.2d 124 (5th Cir. 1990) . . . . 30
H.B. Zachry Co., 289 N.L.R.B. 838 (1988), enforcement
denied, 886 F.2d 70 (4th Cir. 1989) . . . . 6,14
H.B. Zachry Co. v. .NLRB, 886 F.2d 70 (4th Cir. 1989) . . . . 9, 33

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IV

Cases-Continued:                Page

Henlopen Manufacturing Co., 2.35 N.L.R.B. 183 (1978),
enforcement denied, 599 F.2d 26 (2d Cir. 1979)  . . . . 14
Holbrook Knitwear, Inc., 169 N.L.R.B. 768 (1967) . . . . 14
International Chemical Workers Union, 200 N.L.R.B.
341 (1972) . . . .  22
L.H.C., Inc., 195 N.L.R.B. 989 (1972) . . . . 22
Leary v. Department of Labor & Industries, 140 P.2d 292
(Wash. 1943) . . . . 25
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992)  . . . . 18, 28
Leeper Hardware Co. v. Kirk, 434 S.W.2d 620 (Term. Ct.
App. 1968) . . . . 25
Lyndale Manufacturing Corp., 238 N.L.R.B. 1281
(1978) . . . . 14
Margaret Anzalone, Inc., 242 N.L.R.B. 879 (1979) . . . . 14
McKennon v. Nashville Banner Publishing Co.,
115 S. Ct. 879 (1995)   . . . . 35
Miller v. CertainTeed Corp., 971 F.2d 167 (8th Cir.
1992)   . . . . 30
Multimatic Products, Inc., 288 N.L.R.B. 1279 (1988)  . . . . 14,33
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) . . . . . . 28
NLRB v. Copps Corp., 458 F.2d 1227 (7th Cir. 1972)   . . . . 22
NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775
(1990)  . . . . 10-11, 13, 19
NLRB v. E.C. Atkins & Co., 331 U.S. 398 (1947)   . . . . 16
NLRB v. Elias Brothers Big Boy, Inc., 327 F.2d 421
(6th Cir. 1964)   . . . . 9
NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963) . . . . 13
NLRB v. Hearst Publications, Inc., 322 U.S. 111
(1944)  . . . . 15,16, 19
NLRB v. Hendricks County Rural Electric Membership
Corp., 454 U.S. 170 (1981)   . . . . 14
NLRB v. Henlopen Manufacturing Co., 599 F.2d 26
(2d Cir. 1979)  . . . . 9,26
NLRB v. Local Union No. 103, Int'l Ass'n of Bridge
Workers, 434 U.S. 335 (1978)   . . . . 13

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VI

Cases-Continued:

NLRB v. Local Union No. 1229, Int'l Bhd. of
Electrical Workers (Jefferson Standard),
346 U.S. 464 (1953)  . . . . 32
NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983)   . . . . 14
NLRB v. Trump Taj Mahal Associates, 2 F.3d 35
(3d Cir. 1993)   . . . . 33
NLRB v. United Ins, Co. of America, 390 U.S. 264
(1968)  . . . . 17, 19
Nationwide Mutual Ins. Co. v. Darden, 112 S. Ct. 1344
(1992)  . . . . 16-17, 19
Oak Apparel, Inc., 218 N.L.R.B. 701 (1975) . . . . 14
Packard Motor Car `Co. v. NLRB, 330 U.S. 485 (1947)  . . . . 16, 19
Palby Lingerie, Inc.; 252 N.L.R.B. 176 (1980)   . . . . 14
Peyton Packing Co., 49 N.L.R.B. 828 (1943) . . . . 26
Phelps Dodge Corp. "v. NLRB, 313 U.S. 177
(1941) . . . . 7, 18, 19,29,35
Pilliod of Mississippi, Inc., 275 N.L.R.B. 799 (1985) . . . . 14
Pine River State Bank v. Mettille, 333 N.W.2d 622
(Minn. 1983) . . . . 30
QIC Corp., 212 N.L.R.B. 63 (1974) . . . .  22
Republic Aviation Corp. V. NLRB, 324 U.S. 793 (1945)
(1945) . . . . 26,32
Sears, Roebuck & Co., 170 N.L.R.B. 533 (1968) . . . . 14
Sunland Construction Co., 309 N.L.R.B. 1224 (1992) . . . .  7, 15, 27
Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984)  . . . . 11, 15, 20, 35
Texaco, Inc. v. NLRB, 462 F.2d 812 (3d Cir.), cert.
denied, 409 U.S. 1008 (1972)  . . . . 32-33
United States v. Rosenwasser, 323 U.S. 360 (1945)  . . . . 20
Willmar Electric Service, Inc., 303 N.L.R.B. 245 (1991),
enforced, 968 F.2d 1327 (D.C. Cir. 1992), cert. denied,
113 S. Ct. 1252 (1993)  . . . . 14-15, 29
Willmar Electric Service, Inc. v. NLRB, 968 F.2d 1327
(D.C. Cir. 1992), cert. denied, 113 S. Ct. 1252
(1993)  . . . . 9,23, 28, 33

---------------------------------------- Page Break ----------------------------------------

VII

Statutes-Continued:               Page

Age Discrimination in Employment Act of 1967,
29 U.S.C. 621 et seq  . . . . 35
  11(f), 29 U.S.C. 630(f)  . . . . 35-36
Civil Rights Act of 1964,  701(f), 42 U.S.C. 2000e(f) . . . . 35
Employee Retirement Income Security Act of 1974,
29 U.S.C. 1001 et seq  . . . . 36
Fair Labor Standards Act of 1938,29 U.S.C. 201
et seq  . . . . 36
Federal Employers' Liability Act, 45 U.S.C. 51 et seq  . . . . 36
Labor Management Relations Act, 1947, ch. 120, 61 Stat.
136   . . . . 22
  Tit. I   . . . . 22
   101,61 Stat. 137-138 . . . . 22
Labor Management Relations Act, 1947,29 U.S.C. 141
et seq  . . . . 11
  Tit. III   . . . . 22
   301-303, 29 U.S.C. 185-187 . . . .  22
   302(a), 29 U.S.C. 186(a) . . . . 22
   302(c)(1), 29 U.S.C. 186(c)(1)  . . . . 23
National Labor Relations Act, ch. 372,49 Stat. 449 (1935):
   2(3), 49 Stat. 450  . . . . 21
   8(3), 49 Stat. 452  . . . .  18
National Labor Relations Act, 29 U.S.C. 151 et seq.:
 2(3),29 U.S.C. 152(3) . . . .  passim
 7, 29 U.S.C. 157  . . . . 5, 11, 17, 18, 24,28,35
 8(a), 29 U.S.C. 158(a) . . . . 14
 8(a)(1), 29 U.S.C. 158(a)(1)  . . . . 5,6,7, 17,27
 8(a)(3), 29 U.S.C. 158(a)(3)  . . . . 5,6, 7, 18,27
Occupational Safety and Health Act of 1970,
29 U.S.C. 651 et seq  . . . . 36

Miscellaneous:

Black's Law Dictionary (6th ed. 1990) . . . . 34
79 Cong. Rec. 9686 (1935) . . . .  21
H.R. Rep. No. 245, 80th Cong., 1st Sess. (1947) . . . . 20,22
I Legislative History of the Labor Management Relations
Act, 1947 (1974) . . . . 22

---------------------------------------- Page Break ----------------------------------------

VIII

Miscellaneous-Continued:             Page

Legislative History of the National Labor Relations Act
of 1935 (1949):
  vol. I   . . . . 21
  vol. II   . . . . 21
National Labor Relations Board: Hearings on S. 1958
Before the Senate Comm. on Education and Labor,
74th Cong., 1st Sess. (1935) . . . . 21
Restatement (Second) of Agency (1958):
vol. 1  . . . . 8,9,24,25,30
vol. 2  . . . . 24
Summers, Individual Protection Against Unjust
Dismissal: Time for a Statute, 62 Va. L. Rev.
481 (1976) . . . . 30

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In the Supreme Court of the United States

      OCTOBER TERM, 1994

        No. 94-947

NATIONAL LABOR RELATIONS BOARD, PETITIONER

v.

  TOWN & COUNTRY ELECTRIC, INC., AND
AMERISTAFF PERSONNEL CONTRACTORS, LTD.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

       BRIEF FOR THE
  NATIONAL LABOR RELATIONS BOARD

      OPINIONS BELOW

The opinion of the court of appeals, Pet. App. 1a-11a, is
reported at 34 F.3d 625. The decision and order of the
National Labor Relations Board, Pet. App. 12a-42a, and
the decision and recommended order of the adminis-
trative law judge, Pet. App. 43a-135a, are reported at 309
N.L.R.B. 1250.

       JURISDICTION

The judgment of the court of appeals was entered on
August 31, 1994. The petition for a writ of certiorari was
filed on November 23, 1994, and granted on January 23,

(1)

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2

1995. J.A. 282. The jurisdiction of this Court rests on 28
U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 2(3) of the National Labor Relations Act (Act),
29 U.S.C. 152(3), provides:

The term "employee" shall include any employee,
and shall not be limited to the employees of a
particular employer, unless this [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, but shall not include any
individual employed as an agricultural laborer, 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 individual employed
as a supervisor, or any individual employed by an
employer subject to the Railway Labor Act [45
U.S.C. 151 et seq.], as amended from time to time, or
by any other person who is not an employer as herein
defined.

 STATEMENT

1. Respondent Town & Country Electric, Inc., is a
large nonunion electrical contractor based in Wisconsin.
In early September 1989, Town& Country was awarded a
contract to perform electrical renovation work at a paper
mill in International Falls, Minnesota. Pet. App. 2a.
After being awarded the contract, Town & Country
learned that Minnesota requires an electrical contractor

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 3

to employ at least one electrician licensed by that State
for every two unlicensed electricians working at a job
site. At the time, none of Town & Country's electricians
had a Minnesota license. Ibid.
To help it recruit Minnesota-licensed electricians,
Town & Country retained respondent Ameristaff Per-
sonnel Contractors, Ltd., an employment agency. Pet.
App. 2a. Town & Country instructed Ameristaff that
applicants had to be able to work in a nonunion shop. Id.
at 16a. On September 3, 1989, Ameristaff advertised for
"licensed journeymen electricians" in a Minneapolis
newspaper. Applicants responding to the advertisements
were asked, inter alia, whether they preferred to work
union or nonunion. Ibid. Ameristaff arranged for inter-
views with seven applicants to be held on September 7,
1989, at a Minneapolis hotel. Id. at 2a-3a, 16a.
Members of the International Brotherhood of
Electrical Workers, Locals 292 and 343 (the Union),
learned of the job. The Union encouraged its unem-
ployed members to apply, with the understanding that
those members, if hired, would attempt to organize the
job site. The Union had established a fund to reimburse
members for wage, travel, and health-benefit differen-
tials incurred on nonunion jobs. Pet. App. 16a.
On September 7, 1989, officials of respondents appeared
at the hotel to interview applicants. Only one of the
seven applicants with a scheduled interview was present.
Pet. App. 3a. Also present for interviews were approxi-
mately one dozen members of the Union, two of whom
were full-time paid union officials, and the rest of whom
were unemployed electricians. Id. at 3a, 17a. Respon-
dents' officials expressed pleasure with the size of the
turnout (id. at 65a), and gave the nonscheduled applicants
application forms to complete. The completed applica-
tions of the union applicants showed that they were

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4

licensed electricians who were both qualified and
available for work. Id. at 53a-54a, 59a-60a. Respondents'
officials interviewed the nonunion applicant and a union
member who had no appointment but who stated that he
had to leave soon to care for his children. Neither was
hired. Id. at 3a, 17a.
Steven Buelow, Ameristaff's president, then advised
the remaining applicants, all of whom were union
members, that the job was nonunion. The union
members stated that they were interested in any job
available. Pet. App. 18a. Buelow then advised Ron Sager,
Town & Country's manager of human resources, that he
had concluded that the remaining applicants were all
"union." Id. at 3a, 18a; J.A. 103. Sager thereupon can-
celled further interviews. Pet App. 3a, 18a.
One of the unemployed union members, Malcolm
Hansen, protested that he had called Ameristaff that
morning and had been told to report for an interview at
the hotel, and that he would refuse to leave until
interviewed. Pet. App. 3a, 18a-19a. Sager at first threat-
ened to have the union members forcibly removed. Id. at
19a. Sager then stated that he would check on Hansen's
situation and honor the commitment to Hansen if
Hansen's account was verified. Ibid. Upon obtaining
verification of that account, Sager interviewed Hansen,
and hired him. Id. at 3a-4a, 19a. Sager advised the re-
maining union members that he would not interview
them, despite Town & Country's stated need for more
than one licensed electrician, and despite the fact that
only five days remained before work on the project was to
commence. Id. at 19a, 56a.
Hansen's job began on September 12, 1989. The
following day, during a recess, Hansen announced that
he was seeking to organize employees for the Union.
Pet. App. 4a, 91a. Town & Country's project super-

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5

intendent, who was present, immediately telephoned his
superiors. When he returned from the call, he told
Hansen that Hansen would be fired if he continued to
talk about the Union. Id. at 91a-92a, 109a n.73, 121a, 128a
(Par. 6). The following day, at the noon recess, Hansen
sought to convince the work crew of the merits of
union organization. Id. at 102a. Later that day, Hansen
was discharged. Id. at 4a, 100a, 106a-107 a.1 After the
discharge, the Union reimbursed Hansen for wage,
benefit and travel differentials, and materials. Id. at 9a &
n.2. 2. The General Counsel of the National Labor Rela-
tions Board (Board) issued a complaint alleging, inter
alia, that respondents violated Section 8(a)(1) and (3) of
the Act, 29 U.S.C. 158(a)(1) and (3), by refusing to con-
sider the union members for employment because of
their union affiliation, and by terminating Hansen
because of his union activities.2 Respondents contended

___________________(footnotes)

1 The company's stated reason for the discharge was that it had
terminated its contract with Ameristaff, having learned that,
under Minnesota law, an electrical contractor could not use
temporary employees such as Hansen from an employment
agency; rather, all employees had to be directly employed by the
contractor. Town & Country, however, rejected Hansen's request
that the company hire him directly. Pet. App. 4a, 107a.

2 Section 8(a)(1) of the Act makes it an unfair labor practice "to
interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in [Section 7]." 29 U.S.C. 158(a)(1). Section 7
of the Act grants employees the right, inter alia, "to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining." 29 U.S.C. 157. Section 8(a)(3) of the Act makes it an
unfair labor practice to discriminate "in regard to hire or tenure of

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6

that they had acted for nondiscriminatory reasons, and
that, in any event, neither the applicants nor Hansen
were bona fide "employees" within the meaning of
Section 2(3) of the Act, 29 U.S.C. 152(3). Pet. App. 20a-
21a. a. The administrative law judge (ALJ) found that
respondents had violated Section 8(a)(1) and of the
Act. He found that respondents had refused to consider
the job applicants for employment because of their
presumed union affiliation. Pet. App. 56a-69a. He
further found that Town & Country had terminated
Hansen's employment because of his attempts to
unionize the other electricians. Id. at 109a-110a. The
ALJ rejected' Town_& Country's claim that Hansen had
been fired for poor performance, deeming that claim a
"thinly veiled attempt to mislead as to the true reasons"
for the discharge, and finding the claim to be "lacking in
credible support." Id. at 121a.
The ALJ also rejected respondents' claim that the
union members, by virtue of the fact that they stood to be
compensated by the Union for organizing respondent
Town & Country's work force, were not "employees"
under the Act. In H.B. Zachry Co., 289 N.L.R.B. 838
[1988), enforcement denied, 886 F.2d 70 (4th Cir. 1989),
the ALJ noted, the Board had held that paid union
organizers who apply for or in fact work for hire for an
employer are "employees" within the meaning of Section
2(3) of the Act. Accordingly, the ALJ found that the two
union officials and the other union members who had
applied for employment were protected by the Act
against discrimination based on their union activity or
affiliation. Pet. App. 53a n.13. Hansen's goal of organ-

___________________(footnotes)
                               
employment * * * to encourage or discourage membership in
any labor organization." 29 U.S.C. 158(a)(3).

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7

izing the other electricians did not deprive him of the
Act's protection, the ALJ held. Rather, Hansen was "a
rank-and-file union member," and "was dependent finan-
cially on employment as a journeyman electrician in
the construction industry." Id. at 107a n.69. Thus,
"Hansen's intention to organize was not incompatible
with his basic employment needs and objectives and did
not debar him from statutory protection." Ibid.
b. The Board adopted the ALJ's findings of fact. Pet.
App. 13a & n.3. In agreement with the ALJ, the Board
concluded that respondents, by refusing to interview the
union members and by discharging Hansen on account of
their union affiliation, had violated Section 8(a)(1) and (3)
of the Act. Id. at 12a-42a.
The Board also reconsidered and reaffirmed its
position in Zachry that paid union organizers are
"employees" within the meaning of Section 2(3) of the
Act and are therefore protected against discriminatory
refusals to hire and discriminatory termination. Pet.
App. 32a-33a.3 The Board noted that applicants for
employment have been held to be "employees" within the
meaning of Section 2(3) ever since Phelps Dodge Corp. v.
NLRB, 313 U.S. 177 (1941). Pet. App. 22a. The fact that
an applicant is a paid union organizer seeking to unionize
an employer's work force does not change that result,
the Board reasoned. Section 2(3) defines "employee" as
"any employee," and paid union organizers do not fall
within any of the Act's specific exclusions. Id. at 23a-
24a. Moreover, both the legislative history and this
Court's interpretations of the Act support a broad
definition of the statutory term "employee." Id. at 24a-
29a. For a paid union organizer simultaneously to be an

___________________(footnotes)

3 The Board reached the same result in a companion case. See
Sunland Construction Co., 309 N.L.R.B. 1224 (1992).

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8

"employee" of another entity also comports with the
common-law principles of agency to which this Court has
looked to define the term "employee" in cases in which it
was left undefined, by statute, the Board concluded.
Under the common law, "[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." Id. at 28a (quoting 1
Restatement (Second) of Agency 226, at 498 (1958)).
Finally, protecting paid union organizers as "employees"
furthers the Act's goal of promoting the right to
organize, while leaving intact management's legitimate
rights to direct and control employees under its
supervision and to limit union solicitation to nonwork
time. Pet. App. 33a-39a.
As a remedy, the Board adopted the ALJ's recom-
mended order that Town & Country, inter alia, offer
employment to Hansen and the union members who had
been denied interviews, and make the union members
whole for any losses suffered as a result of Town &
Country's discrimination. Pet. App. 40a, 131a-133a.4
3. The court of appeals reversed. Pet. App. 1a-11a. It
accepted respondents' contention that a paid union
organizer is not an "employee" within the meaning of
Section 2(3) of the Act, and therefore denied enforcement
of the Board's order. Id. at 7a-9a.5 The court noted that

___________________(footnotes)
               
4 The Board left to compliance proceedings the determination
of how many electricians Town & Country would have hired
absent its antiunion discrimination, and thus how many of the ten
applicants are actually entitled to a remedy. Pet. App. 130a,

5 The court of appeals found it unnecessary to consider
respondents' remaining contentions that the Board "improperly
approved the ALJ's use of an irrebuttable presumption that all
nonunion employers are unlawfully motivated to discriminate
against individuals who are affiliated with a union," and that it

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9

the circuits are split on whether paid union organizers
are employees under the Act, with the District of
Columbia, Second, and Third Circuits holding that they
are, and the Fourth and Sixth Circuits holding that they
are not. Id. at 5a-7a, see Willmar Electric Service, Inc.
v. NLRB, 968 F.2d 1327, 1329-1331 (D.C. Cir. 1992), cert.
denied, 113 S. Ct. 1252 (1993); NLRB  v. Henlopen Manu-
facturing Co., 599 F.2d 26,30 (2d Cir. 1979); H.B. Zachry
Co. v. NLRB, 886 F.2d 70, 72 (4th Cir. 1989); NLRB v.
Elias Brothers Big Boy, Inc., 327 F.2d 421, 427 (6th Cir.
1964); see also Escada (USA) Inc. v. NLRB, 970 F.2d 898
(3d Cir. 1992) (Table).
The court of appeals found the Fourth Circuit's
reasoning in Zachry to be persuasive. Pet. App. 7a. The
court stated that it found the definition of "employee" in
the Act to be of "little help." Ibid. Instead, the court
looked to the common law for guidance. It noted that an
individual may be "the servant of two masters at one
time only if service to one does not involve abandonment
of or conflict with service to the other." Id. at 8a (citing
I Restatement, supra,  226, at 498). Ordinarily, a job
applicant may be simultaneously loyal to his union and to
his nonunion employer, the court stated. Pet. App. 8a.
But the Union's two full-time organizers "were not
typical applicants," the court stated, because they
already had a job and "wanted to enter Town & Country's
work force not for financial gain, but to organize its
workers." Ibid. And "[w]hen a union official applies for a
position only to further the union's interests, * * * an
inherent conflict of interest exists," the court reasoned,
for "the union official will follow the mandates of the
union, not his new employer." Id. at 8a-9a. For example,

___________________(footnotes)

"failed to follow precedent that permits employers to prohibit
solicitation during work time." Pet. App. ha.

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10

"[i]f the union asks him to quit working for his second
employer, he will do so." Id. at 9a. Further, the court
stated, a full-time union official "has a reduced incentive
to be a good employee for his second employer because,
if terminated, "he simply returns to his full-time union
job." Ibid.
The court of appeals further held that the unemployed
electricians who belonged to the Union (including
Hansen) were also not "employees" within the meaning
of Section 2(3) of the Act, because they "were also under
[the Union's] control." Pet. App. 9a. The court based
this conclusion on three factors. First, the unemployed
union members had been encouraged by the Union to
apply. Ibid. Second, the Union had committed to paying
the difference between their salaries and union-scale
wages. Ibid. Third, the union members were subject to
the Union's "job salting organizing resolution," which
provided that members could work for nonunion em-
ployers "only if they work for organizational purposes,"
and that union members were to leave the nonunion job
upon notification by the Union. Id. at 9a-10a. That last
provision, the court stated, was "controlling," for a
union's `(control over a putative employee's job tenure
* * is inimical to, and inconsistent with, the
employer-employee relationship." Id. at 10a.

      SUMMARY OF ARGUMENT

The Board has long held that a worker who is a paid
union organizer is an "employee" within the meaning of
Section 2(3) of the National Labor Relations Act (Act),
29 U.S.C. 152(3). In light of the Board's role as the
agency primarily responsible for developing and applying
national labor policy, that interpretation warrants
deference and should be upheld if it is "rational and
consistent with the Act." NLRB v. Curtin Matheson

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11

Scientific, Inc., 494 U.S. 775, 786-787 (1990). The Board's
interpretation in this case is not only consistent with,
but is strongly supported by, the text of the Act.
As this Court has recognized, the breadth of Section
2(3)'s definition is "striking." Sure-Tan, Inc. v. NLRB,
467 U.S. 883,891 (1984). Section 2(3) provides that "[t]he
term `employee' shall include any employee," subject
only to a list of specific exclusions for categories of
workers. 29 U.S.C. 152(3) (emphasis added). Paid union
organizers do not fit within any of those excluded
groups, and Section 7 of the Act, 29 U.S.C. 157, refutes
any claim that an otherwise-covered worker forfeits his
status as an "employee" by engaging in organizing act-
ivities: it provides, inter alia, that "[employees shall
have the right to self-organization" (emphasis added).
Under the principle of expressio unius est exclusio
alterius, the absence in Section 2(3) of any exclusion for
employees who are paid by a union for such organizing
establishes that paid union organizers are "employ ees."
The legislative history of the Act supports that inter-
pretation, as does a provision of the closely related Labor
Management Relations Act of 1947, which recognizes
that a worker can simultaneously be an employee of both
a union and an employer.
The court of appeals therefore erred in disregarding
the text of the Act as providing "little help," and in
defining "employee" instead solely by reference to
common-law principles of agency. In any event, those
principles are not offended by treating a paid union
organizer as an employee. The court of appeals gave
three reasons for holding that a worker's role as a paid
union organizer inherently conflicts with his duties to
his employer. The court of appeals feared, first, that
such a worker might engage in "organizational activities
at [the employer's] expense." Pet. App. 9a. However,

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12

such activities are protected under the Act, subject to
the employer's right reasonably to restrict organizing
where it would impede workplace discipline or pro-
ductivity. Second, the court feared that a union might
direct a paid union organizer to resign abruptly. How-
ever, an employer may guard against such transience by
refusing, on a union-neutral basis, to hire employees who
may be unable to serve for a given duration, and by
otherwise structuring terms of employment. Third, the
court feared that paid union organizers will be
"disloyal." But there is no basis for inferring that a paid
union organizer will commit acts of disloyalty against an
employer, as opposed simply to exercising his protected
right to organize.
Finally, the court of appeals' interpretation of the
term "employee" would produce anomalous results and
defeat important policies of the Act. It would leave
workers unprotected against blatant acts of antiunion
discrimination. And, because many other federal
statutes (such as those prohibiting discrimination on the
basis of race, gender, and age) use the term "employee"
with no greater guidance than that provided by the Act,
the court of appeals' interpretation would threaten to
deprive workers for hire who are paid union organizers
of many important legal rights.

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13

       ARGUMENT

THE BOARD REASONABLY DETERMINED THAT A
PAID UNION ORGANIZER APPLYING FOR OR
HOLDING A JOB WITH AN EMPLOYER WHOM HE
INTENDS TO ORGANIZE IS AN "EMPLOYEE"
UNDER SECTION 2(3) OF THE NATIONAL LABOR
RELATIONS ACT

  A. The Text And History Of The Act Support The
    Board's Longstanding Determination That A Paid
   Union Organizer Who Applies For Work For Hire Or
    Holds Such A Job Is An "Employee" Protected
    Against Antiunion Discrimination, And That Deter-
    mination Is Entitled To Deference

1. As this Court has often explained, Congress gave
the National Labor Relations Board (Board) the
"primary responsibility for developing and applying
national labor policy." NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 786 (1990); see also Beth
Israel Hosp. v. NLRB, 437 U.S. 483, 500-501 (1978);
NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963).
Accordingly, where the Act does not speak directly to an
issue, the Court gives "considerable deference" to the
Board's interpretation, and will uphold that interpre-
tation if it is "rational and consistent with the Act," even
if the Members of this Court "would have formulated a
different rule had [they] sat on the Board." Curtin
Matheson, 494 U.S. at 786-787; Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27,42 (1987); NLRB
v. Local Union No. 103, Int'1 Ass `n of Bridge Workers,
434 U.S. 335, 350 (1978); see Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837,
842-843 (1984). Deference is particularly appropriate
where the interpretation in question is a "consistent,

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14

longstanding interpretation of the NLRA by the Board."
NLRB v. Hendricks County Rural Electric Member-
ship Corp., 454 US. 170, 189-190 (1981); see also NLRB v.
Transportation Management Corp., 462 U.S. 393, 401-
402 (1983); Bayside Enterprises, Inc. v. NLRB, 429 U.S.
298,303 (1977).
In this case, the Board has held that a "paid union
organizer"-a person who applies for or holds a job with
an employer that he intends to organize and who will be
compensated by a union for his organizational activity-
is an "employee" within the meaning of Section 2(3) of
the National Labor "Relations Act (Act), 29 U.S.C. 152(3).
A statutory, "employee" is, under Section 8(a) of the Act,
.29 U.S.C. 158(a), protected against various forms of
antiunion discrimination by an employer. The Board's
interpretation is a longstanding and consistent one. See
Holbrook Knitwear, Inc., 165- N.L.R.B. 768, 771 (1967);
Sears, Roebuck & Co., 170 N.L.R.B. 533, 535 n.1 (1968);
Dee Knitting Mills, Inc., 214 N.L.R.B. 1041, 1041 (1974),
enforced mem., 538 F.2d 312 (2d Cir. 1975) (Table); Oak
Apparel, Inc., 218 N.L.R.B. 701, 701 (1975); Anthony
Forest Products Co., 231 N.L.R.B. 976, 977-978 (1977);
Henlopen Manufacturing Co., 235 N.L.R.B. 183, 184
(1978), enforcement denied on other grounds, 599 F.2d 26
(2d Cir. 1979); Lyndale Manufacturing Corp., Inc., 238
N.L.R.B. 1281, 1283 n.3 (1978); Margaret Anzalone, Inc.,
242 N.L.R.B. 879, 888 (1979); Columbia Engineers Int'1,
249 N.L.R.B. 1023, 1028 n.8 (1980); Palby Lingerie, Inc.,
252 N.L.R.B. 176, 182 (1980); Pilliod of Mississippi, Inc.,
275 N.L.R.B. 799, 811 (1985); Multimatic Products, Inc.,
288 N.L.R.B. 1279, 1313 n.226, 1316 (1988); H.B. Zachry
Co., 289 N.L.R.B. 838, 83%341 (1988), enforcement denied,
886 F.2d 70 (4th Cir. 1989); Willmar Electric Service,
Inc., 303 N. L. R. B_. 245, 252 & n.24, 253 & n.37 (1991),
enforced, 968 F.2d 1327 (D.C. Cir. 1992), cert. denied, 113

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15

S. Ct. 1252 (1993); Escada (USA) Inc., 304 N.L.R.B. 845,
848 (1991), enforced mem., 970 F.2d 898 (3d Cir. 1992).
The Board reexamined and reaffirmed that inter-
pretation in this case (Pet. App. 22a-40a) and a companion
case, Sunland Construction Co., 309 N.L.R.B. 1224
(1992). The Board's interpretation is not only rea-
sonable-in light of the text, structure, and history of
the Act, it is clearly correct.
2. Section 2(3) of the Act provides that "[t]he term
`employee' shall include any employee," subject only to
specific exclusions for agricultural laborers, domestic
workers, supervisors, individuals employed by their
spouses or parents or as independent contractors, and
individuals employed by a person who is not an employer
under the Act. 29 U.S.C. 152(3) (emphasis added). As
this Court has observed, "[t]he breadth of 2(3)'s
definition is striking The Act squarely applies to `any
employee]' [and] [t]he only limitations are specific
exemptions" in the statute. Sure-Tan, Inc. v. NLRB, 467
U.S. 883,891 (1984).
In Sure-Tan, this Court held that undocumented
aliens "plainly come within the broad statutory defini-
tion of `employee'" because they "are not among the few
groups of workers expressly exempted by Congress."
467 U.S. at 892. The Court emphasized that, "[s]ince the
task of defining the term `employee' is one that `has been
assigned primarily to the agency created by Congress to
administer the Act,' the Board's construction of that
term is entitled to considerable deference, and we will
uphold any interpretation that is reasonably defensible."
Id. at 891 (quoting NLRB v. Hearst Publications, Inc.,
322 U.S. 111, 130 (1944)). On many other occasions,
this Court has recognized that, in light of the breadth
of Section 2(3), deference is due to reasonable
Board determinations that particular workers are

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16

"employ ees." See, e.g., Allied Chemical & Alkali
Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166
(1971) ("plain meaning" of term "employee" extends to
class of individuals "who work for another for hire," and
the task of determining "the contours of the term
`employee'" properly belongs to the Board, except where
that determination is unreasonable); NLRB v. E.C.
Atkins & Co., 331 U.S. 398 (1947) (sustaining Board
holding that war-production employer's security
personnel, who were required by the government to be
hired as "civilian auxiliaries to the military police,"
were "employees"); Packard Motor Car Co. v. NLRB,
330 U.S. 485 (1947) (sustaining Board holding, before
addition to Section 2(3) of language excluding "any
individual employed as a supervisor," that supervisors
and foremen were "employees"]; NLRB v. Hearst
Publications, Inc., supra (sustaining Board holding,
before addition to Section 2(3) of language excluding
"any individual having the status of an independent
contractor," that newsboys who might be considered
independent contractors were "employees").
Notwithstanding those admonitions, the court Of
appeals ruled that the text of the Act (and hence the
Board's interpretation of that text) "provides little help"
on the issue of whether a paid union organizer is an
"employee." Pet. App. 7a. Instead, the court of appeals
relied solely on its own application of common-law
principles of agency to a paid union organizer. Id. at 7a-
10a. The court of appeals' basis for taking that approach
was the canon that, where a statute provides no guidance
as to the meaning of the term "employee," courts are to
presume that "Congress intended to describe the con-
ventional master-servant relationship as understood by
common-law agency doctrine." Pet. App. 7a-8a (quoting
Nationwide Mutual Ins. Co. v. Darden, 112 S. Ct. 1344,

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17

1348(1992)). Based on that interpretive canon, common-
law principles of agency are used, for example, to
determine under the Act whether particular workers are
protected "employees" or excluded "independent con-
tractors," because the Act provides no guidance on how
to distinguish between those categories. See NLRB v.
United Ins. Co. of America, 390 U.S. 254,256-260 (1968)
(upholding Board's determination that the "debit agents"
of an insurance company were "employees/' not indepen-
dent contractors).
The court of appeals fundamentally erred in disre-
garding the text of the Act-and the Board's inter-
pretation of that text-on the issue of whether a paid
union organizer is an "employee." There is no sugges-
tion that the organizers in this case, or that paid
organizers in general, fit within any of the statutory
exclusions: As between the categories of "employee" and
"independent contractor," for example, paid organizers
who are workers for hire are clearly "employees." See
Pittsburgh Plate Glass, 404 U.S. at 166. And the Act
itself squarely answers the question whether the fact
that an otherwise-protected worker plans to engage in
union organizing renders him a non-"employee." Section
7 provides that a statutory "employee" is entitled to take
such action: "Employees shall have the right to self-
organization, to form, join, or assist labor organiza-
tions." 29 U.S.C. 157 (emphasis added). See American
Hosp. Ass'n v. NLRB, 499 U.S. 606, 609 (1991) ("The
central purpose of the Act was to protect and facilitate
employees' opportunity to organize unions to represent
them."). The statutory text thus makes clear that a
worker for hire does not surrender his status as an
"employee" by engaging in union organizing-or, in

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18

other words, that a worker for hire who is a union
organizer is an "employee." 6
It has likewise been established since Phelps Dodge
Corp. v. NLRB, 313 U.S. 177 (1941), that an applicant for
work for hire is also an "employee: and that an employer
may not refuse to hire such an applicant because the
applicant intends, if hired, to engage in protected
organizing activity. In Phelps Dodge, the Court recog-
nized that classifying applicants as non-"employees"
would effectively nullify Section 8(3) of the Act (now
Section 8(a)(3)), which makes it an unfair labor practice
for an employer to discriminate "in regard to hire or
tenure of employment or any term or condition of
employment to encourage or discourage membership in
any labor organization." 29 U.S.C. 158(a)(3). As Justice
Frankfurter, writing for the Court, put the point,

[w]e are asked to read "hire" as meaning the wages
paid to an employee so as to make the statute merely
forbid discrimination in one of the terms of men who
have secured employment. So to read the statute
would do violence to a spontaneous textual reading of
8(3) in that "hire" would serve no function because,
in the sense which is urged upon us, it is included
in the [8(3)] prohibition against "discrimination
in regard to, * * * any term or condition of
employment." Contemporaneous legislative history,

___________________(footnotes)

6 As we discuss at pages 25-27, infra, an employer may limit
organizing activities to nonworking hours and may adopt
reasonable rules to ensure that such activities do not interfere with
discipline and production. But it is otherwise an unfair labor
practice for an employer "to interfere with, restrain, or coerce
employees in the exercise of" the Section 7 right to organize. 29
U.S.C. 158(a)(1). See Lechmere, Inc. v. NLRB, 502 U.S. 527, 533
(1992).

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19

and, above all, the background of industrial ex-
perience, forbid such textual mutilation.

313 U.S. at 186 (footnote omitted).
Thus, the Court held, a job applicant falls within the
"broad definition of `employee' with which  2(3) begins,"
and is eligible for the remedies accorded to "employees"
discriminated against because of their union affiliation
or activities. 313 U.S. at 192. Since Phelps Dodge,
Congress has not amended Section 2(3) to restrict the
Act's coverage of job applicants, even though it has added
exclusions to that provision in response to other rulings
of this Court. See United ins., 390 U.S. at 256 (noting
that Congress added the exclusion for independent
contractors to Section 2(3) in response to the decision in
Hearst, supra, that newsboys who could be considered
independent contractors were statutory "employees");
Nationwide Mutual Ins., 112 S. Ct. at 1349 (same);
Florida Power & Light Co. v. International Bhd. of
Electrical Workers, Local 6.41, 417 U.S. 790, 807-811
(1974) (noting that Congress added the exclusion for
supervisors to Section 2(3) in response to the decision in
Packard Motor Car Co. v. NLRB, supra, that foremen
were statutory "employees").
3. The decisive issue in this case is therefore simply
whether the fact that a worker for hire or a job applicant
who intends to exercise the right to organize loses his
status as a protected "employee" solely because a union
will pay him for his organizing. Neither the text of
Section 2(3) nor the history of the Act supports-indeed,
they belie-such an interpretation. The Board's inter-
pretation that a paid union organizer is an "employee"
therefore should be upheld as "rational and consistent
with the Act." Curtin-Matheson, 494 U.S. at 786-787.

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20

Denying "employee" status to a worker solely because
he receives pay for organizing a work force cannot be
squared with the Act's broad definition of "employee," as
the Board has recognized Pet. App. 22a-24a. Section
2(3) covers "any employee" except those specifically
excluded, and no exclusion exists for workers based on
the relationship they have with a union or the monetary
compensation they expect to receive from a union. 29
U.S.C. 152(3) (emphasis added). Moreover, one of the
statutory exclusions, for supervisors, was added to
address the same broad policy concerns cited by the
court of appeals: that employers should not have to
tolerate workers who might have divided loyalties. See
Florida Power & Light, 417 U.S. at 810 (exclusion for
supervisors was added to ensure that the employer had
the loyalty of foremen in dealing with the rank and file,
rather than having "the rank and file boss[] them")
(quoting H. Ft. Rep. No. 245, 80th Cong., 1st Sess. 14
(1947)). Yet no similar exclusion was added for other
workers with potentially divided loyalties, such as a
worker who simultaneously receives pay from an
employer and a union.
In light of Section 2(3)'s sweeping command that any
employee not specifically excluded is a statutory
"employee," the canon expressio unius est exclusio
alterius (the inclusion of one thing negatively implies
the exclusion of others) applies in this case with
particular force. Cf. United States v. Rosenwasser, 323
U.S. 360, 362-363 (1945). Workers for hire and job
applicants who will be paid for union organizing, like
undocumented aliens, are simply not "among the few
groups of workers expressly exempted by Congress."
Sure-Tan, 467 US. at 892.
As the Board has noted (Pet. App. 24a-26a), the
legislative history' of Section 2(3), although containing

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21

no detailed analysis of its scope, also supplies no support
for excluding from the Act's coverage an otherwise-
covered worker who is a paid union organizer. As
Section 2(3) was enacted in 1935, it was identical in its
structure and wording to the present provision, although
it contained fewer exemptions than it does today. See
National Labor Relations Act, ch. 372, 2(3), 49 Stat.
450? The history of that provision indicates that
Congress used the term "employee" to embrace without
exception the class of "workers," "wage earners" and
"workmen" who comprise the work forces of "em-
ployers." See Pet. App. 25a; see also 79 Gong. Rec. 9686
(1935) (Rep. Connery, bill's floor manager, states that
Act protects "every man on a pay roll"), reprinted in II
Legislative History of the National Labor Relations Act
of 1935, at 3119 (1949) [hereinafter NLRA Leg. Hist.];
National Labor Relations Board: Hearings on S. 1958
Before the Senate Comm. on Education and Labor, 74th
Cong., 1st Sess. 42 (1935) (Sen. Wagner, bill's sponsor,
states that Act generally protects "the workers"),
reprinted in I NLRA Leg. Hist. 1418.8

___________________(footnotes)

7 As enacted in 1935, Section 2(3) provided

  The term "employee" shall include any employee, 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, but shall not
include any individual employed as an agricultural laborer, or
in the domestic service of any family or person at his home, or
any individual employed by his parent or spouse.
8 Based on its broad language and its legislative history, the
Board has interpreted Section 2(3) as using the term "employee"
in its "broad generic sense," and has concluded in numerous

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22

In 1947, Congress passed the Labor Management
Relations Act, 1947, ch. 120,61 Stat. 136 (LMRA). Title I
of the LMRA amended Section 2(3) of the Act to add
exclusions for independent contractors, supervisors, and
employees of an employer who is "not an employer"
under the Act, see LMRA  101,61 Stat. 137-138; Florida
Power & Light, 417 U.S. at 807-811, but it did not
otherwise limit the broad scope of that provision.
Instead, the history of the LMRA indicates, Congress
continued to use the term "employee" to refer broadly to
the class of people who "work[] for another for hire," or
who "work for wages or salaries under direct super-
vision." H.R. Rep. No. 245, supra, at 18, reprinted in I
Legislative History of the Labor Management Relations
Act, 1947, at 309 (1974).
Indeed, in contemporaneously enacting Title III of the
LMRA, 29 U.S.C. 185-187, Congress manifested an
assumption that an "employee" may be not only paid but
employed simultaneously by a union and an employer.
Although Section 302(a) of the LMRA, 29 U.S.C. 186(a),
generally prohibits payments by an employer to an
         
___________________(footnotes)

contexts apart from that of the paid union organizer that "the
term must be interpreted to include members of the working class
generally." Briggs Manufacturing Co., 75 N.L.R.B, 569, 570-571
(1947); see also Giant Food Markets, Inc., 241 N.L.R.B. 727, 728&
n.5 (1979). Thus, the Board has accorded "employee" status. not
only to employees of a particular employer, but also to employees
of another employer, former employees of a particular employer,
temporary and part-time employees, individuals attending school
or working a second job, individuals with announced intentions to
quit in the near future, and individuals secretly seeking work with
a competitor. See cases cited at Pet, App. 29a n.23; see also NLRB
v. Copps   Corp., 458 F.2d 1227, 1229 (7th Cir. 1972); QIC COT., 212
N.L.R.B. 63, 66-68 (1974); International Chemical Workers Union,
200 N.L.R.B. 341, 342-347 (1972); L. H. C., Inc., 195 N.L.R.B. 989,
992 (1972).

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23

employee of a union, Section 302(c)(1) specifically
excepts from that ban monetary payments made "to any
* * * employee of a labor organization, who is also an
employee * * * of such employer, as compensation for,
or by reason of, his service as an employee of such
employer." 29 U.S.C. 186(c)(1). That provision thus
recognizes that a worker can simultaneously be a paid
"employee" of both a union and another employer. See
Willmar Electric Service, Inc. v. NLRB, 968 F.2d 1327,
1329 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1252 (1993);
cf. BASF Wyandotte Corp. v. Local 227, Int'l Chemical
Workers Union, 791 F.2d 1046, 1048-1053 (2d Cir. 1986)
(noting relationship between NLRA and LMRA). The
Board's interpretation that a paid union organizer is an
"employee" within the meaning of Section 2(3) is
therefore rational and consistent with the text,
structure, and history of the Act, and any contrary
interpretation would be inconsistent with that text,
structure, and history.

  B. A Worker For Hire Whom A Union Pays To
    Organize An Employer's Work Force Does Not
    "Abandon" Or Act In Conflict With His Duties To
    The Employer

In light of the significant guidance provided by the
text of the Act, the court of appeals was wrong to
disregard that text (and the Board's interpretation of it)
and to rely instead solely on common-law principles of
agency to determine whether a paid union organizer is a
statutory "employee." But, in any event, treating a paid
union organizer as an "employee" does not offend those
common-law principles, as the Board has recognized.
Pet. App. 32a-40a.
1. The court of appeals held that a worker's status as
a paid union organizer is inconsistent with the principles

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24

that an agent "has a duty to act solely for the benefit of
his principal" (see 2 Restatement (Second) of Agency
387, at 201 (1958)), may not act on behalf of "an entity
whose interests conflict with those of the principal in
matters in which the agent is employed" (see 2 id. 394,
at 219), and may "be the servant of two masters at one
time only if service to one does not involve abandonment
of or conflict with service to the other" {see 1 id. 226, at
498). Pet. App. 8a. The court of appeals identified three
ways in which hiring a paid union organizer purportedly
conflicts with an,, employer's interests. None supplies a
valid basis for concluding that a worker whom a union
pays for organizing has "abandoned" or acted "in con-
flict" with his duties to his employer "master."
a. The court of appeals expressed concern, first, that
a union might direct a paid union organizer to "in-
crease his organizational activities at [the] employer's
expense." Pet. App. 9a. But that concern does not
justify excluding paid union organizers from the Act's
coverage, for several reasons. First, the court's worry
about a worker who may actively attempt to organize a
work force work sweep far beyond the category of paid
union organizers." If used as a basis for defining the term
"employee/' it would logically exclude workers who
aggressively organize work forces for many other
reasons: because they zealously believe in unionism,
because they believe that unionizing a particular
employer will increase their own wages and benefits, or
because they wish to be in the good graces of union
officials. It is simply of no consequence to the employer
that an employee's motive to organize the workplace
arises, in part, from monetary incentives.
More fundamentally, Section 7 of the Act, by giving an
employee a protected right to organize, belies the court
of appeals' tacit assumption that vigorous organizing is

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25

inherently inconsistent with, or tantamount to aban-
doning, the employee's duties to the employer. As the
Board explained, the core premise of the statute-that an
employee has a right to organize-"is at war with the
idea that loyalty to a union is incompatible with an
employee's duty to the employer." Pet. App. 37a.
Rather, "[t]he fact that paid union organizers intend to
organize the employer's work force if hired establishes
neither their unwillingness nor their inability to
perform quality services for the employer." Ibid.9.
Finally, recognizing as an "employee" a worker who is
a paid union organizer in no way impedes the employer's
ability reasonably to restrict union organizing so as to
maintain discipline and productivity. Such workplace
rules apply equally to paid and volunteer union
organizers. See Pet. App. 34a, 38a (paid organizers are
subject to same rules as other employees, and enjoy no
"carte blanche in the workplace"). As this Court has
explained,
[t]he Act, of course, does not prevent an employer
from making and enforcing reasonable rules covering
the conduct of employees on company time. Working
time is for work. It is therefore within the province
of an employer to promulgate and enforce a rule
prohibiting union solicitation during working hours.

___________________(footnotes)

9 Indeed, at common law, so long as "the purpose of serving the
master's business actuates the servant to any appreciable extent,"
the servant's conduct "may be within the scope of employment,
although done in part to serve the purposes of the servant or of a
third person." 1 Restatement, supra, 236 & cmt. b, at 523-524.
See Ermert v. Hartford Ins. Co., 559 So. 2d 467, 477 (La. 1990);
Leeper Hardware Co. v. Kirk, 434 S.W.2d 620, 624 (Term. Ct. App.
1968); Leary v. Department of Labor & Industries, 140 P.2d 292,
297 (Wash. 1943).

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26

Such a rule must be presumed to be valid in the
absence of evidence that it was adopted for a
discriminatory purpose.

Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n.10
(1945) (quoting Peyton Packing Co., 49 N.L.R.B. 828,843
(1943)). An employer also remains free to fire an
employee who was a paid organizer for any otherwise-
lawful reason apart from the employee's union affiliation
and activities. See Edward G. Budd Manufacturing Co.
v. NLRB, 138 F.2d 86, 89-91 (3d Cir. 1943) ("an employer
may discharge an employee for a good reason, a poor
reason or no reason at all so long as" the discharge is not
motivated by unlawful considerations), cert. denied, 321
U.S. 778 (1944).10
Employers do have a valid interest in hiring persons
who are less likely than others to violate work rules.
However, the Board considered that interest and found
that, in its experience, there is no evidence that paid
union organizer are more likely than unpaid union
organizers to violate work rules. On the contrary, the
Board observed, precisely because a paid union organizer
applies for a nonunion job in order to give himself an
opportunity to organize the work force, "engaging in
conduct warranting discharge would be antithetical to
     
___________________(footnotes)

10 Contrary to the court, of appeals' suggestion (Pet. APP. 9a),
termination of a paid union organizer for just cause would not
constitute an unfair labor practice. See Anthony Forest Products,
231 N. L. R.B. at 977-979; NLRB v. Henlopen Manufacturing Co.,
599 F.2d 26, 29-30 (2d Cir. 1979). But to the extent that the court
of appeals viewed increased organizational activity of a union-
member employee as an instance of such misconduct, it erred. The
Act protects such organizational activities so long as they are
confined to nonwork hours and do not otherwise interfere with
discipline or production. See Republic Aviation, 324 U.S. at 803
n.10; Beth Israel Hosp., 437 U.S. at 491-492.
      
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27

th[at] objective." Pet. App. 37a; see ibid. ("No body of
evidence has been presented that would support any
generalized, or specific, finding that paid union
organizers as a class have a significant, or indeed any,
tendency to engage in such conduct."); id. at 38a (in the
absence of "objective evidence," the Board will refuse to
"infer a disabling conflict or presume that, if hired, paid
union organizers will engage in activities inimical to the
employer's operations''.11. The court of appeals had no
basis for substituting its assumptions about the
incidence of workplace infractions by particular classes
of employees for the experienced judgment of the Board.12.

___________________(footnotes)

11 The Board has ruled that, in the discrete context of an
ongoing strike, an employer may refuse to hire a paid union
organizer. See Sunland Construction, 309 N.L.R.B. at 1231. An
employer has a "substantial and legitimate" interest in refusing to
place on the payroll a person who realistically would immediately
begin encouraging other employees to withhold their services, the
Board explained, and it is rational to presume that a paid member
of a union "that is seeking to induce employees to withhold services
would not be inclined wholeheartedly to provide services for the
duration of the organization's efforts." Id. at 1231 & n.41. The
basis for that ruling was not, however, that the paid union
organizer is a non-"employee," but, rather, that an employer's
refusal to hire a union organizer who applied for work during a
strike does not violate Section 8(a)(1) and (3) of the Act. Apart
from the strike situation, however, the Board has found no
"inherent conflict between carrying out the duties of an employee
and operating as a paid union organizer." Id. at 1231 n.41.
Rather, "[t]he aim of inducing fellow employees to join a union is
entirely consistent with being a competent employee who obeys
work rules such as those time-and-place restrictions on union
solicitation that are lawful" under the Act. Ibid.

12 The Board properly rejected respondents' attempt to
analogize a job applicant who is a paid union organizer to an
outside union organizer. Pet. App. 37a-38a & n.34. An employer
may ordinarily exclude an outside union organizer from his

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28

b. The court of appeals also stated that hiring a paid
union organizer could infringe upon the employer's
interest in having non-transitory employees, because
a union could direct the paid organizer to resign
altogether. Such "control over a putative employee's job
tenure," the court of appeals stated, "is inimical to, and
inconsistent with, the employer-employee relationship."
Pet. App. 10a; see id. at 9a.
The court of appeals failed to recognize, however, that
an employer who has a genuine (not pretextual) interest.
in ensuring longterm employment may guard against
employee transience by other means. Most obviously,
the employer may refuse, pursuant to a union-neutral
policy, to hire applicants who are likely to be temporary
or transitory workers. To this end, an employer may ask
an applicant whether there is any obstacle (including, for
example, a pending application with another employer, a

___________________(footnotes)

premises, because, as this Court has explained, the Act accords
such an outsider only a derivative Section 7 right. Only where
employees are otherwise physically inaccessible to union organizers
does the interest of those employees in obtaining information about
unionization dictate giving an outside organizer such access. See
NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112-113 (1956);
Lechmere, 502 U.S. at 537. By contrast to such an outside
organizer the Board explained, a worker for hire or an applicant
for such a position is an "employee," and thus is statutorily
protected against antiunion discrimination. Pet. App. 37a n.34.
Indeed, the Board noted, a paid union organizer who is working
for hire "arguably poses no greater threat to an employer's
property rights than a prounion employee who voluntarily engages
in organizational activity." Ibid; see Willmar Electric, 968 F.2d at
1330 (paid union organizer's status as "employee" does not conflict
with Babcock & Wilcox and Lechmere, for while the paid union
organizer's employment "would give him a better perch from
which to propagandize * * *, [that] would [also] be true for any
union zealot who got a job with [the employer]").

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29

family or personal commitment, or a scholastic obliga-
tion) that could inhibit the applicant from serving for a
given duration. Provided that the employer applies such
a durational standard on an evenhanded basis, it is free
not to hire a paid union organizer applicant who fails to
meet that standard. See Willmar Electric, 303 N.L.R.B.
at 246 n.2 ("An employer may * * * lawfully refuse to
hire a statutorily protected employee applicant, in-
cluding a paid union organizer, on the basis of a
nondiscriminatory policy against hiring any individual
who, for example, seeks only temporary employment,
applies while working for another employer, or intends
to work simultaneously for more than one employer.");
see also Pet. App. 36a n.32. Indeed, as this Court
emphasized in Phelps Dodge, where it first held that a
job applicant is an "employee" under the Act, the Act
does not require employers to favor union members in
hiring or infringe upon "the normal exercise of the right
of the employer to select its employ ees." 313 U.S. at 187.
Rather, the Act "is directed solely against the abuse of
that right by interfering with the countervailing right of
self-organization." Ibid. An employer may also design
its compensation scheme, pension plan, and other con-
tractual terms to encourage longevity of employment. In
short, there is no need to classify a paid union organizer
as a non-"employee"  in order to protect an employer's
legitimate interest in avoiding undue turnover within its
work force.
An employer who does not take these steps and instead
simply hires employees at will, however, has only itself
to blame if an employee exercises his right to resign,
whether impelled to leave by personal considerations,
drawn by superior opportunities elsewhere, or directed
to resign by a union. Indeed, at common law, employment
contracts for an unspecified duration of time were

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30

familiar, and have long been viewed as creating an "at
will" relationship which either the employer or the
employee may terminate at any time and for any reason.
See, e.g., Gilbert v. Tulane Univ., 909 F.2d 124, 126 (5th
(Cir. 1990); Broussard v. Caci, Inc Federal, 780 F.2d
162, 163 (lst Cir. 1986); Buian v. J.L. Jacobs & Co., 428
F.2d 531, 533 (7th Cir. 1970); see also Summers,
Individual Protection Against Unjust Dismissal: Time
for a Statute, 62 Va. L. Rev. 481,484-435 (1976). Thus,
the common-law principle that a servant may not
"abandon" one master for another (Pet. App. 8a (citing
1 Restatement," supra, 226, at 498)) simply has no
relevance where the "servant" employee does no more
than exercise a right to cease employment.13
In its decision, the court of appeals placed "con-
trolling" weight on the Union's "job salting organizing
resolution," under which its members who applied for
nonunion jobs had agreed to leave the employer
"immediately upon notification." Pet. App. 10a. Reliance
on that resolution was misplaced, for two reasons. First,
as we have noted, an employer who genuinely wishes not.
to hire transitory workers is free to inquire, pursuant to
a union-neutral policy, whether there is anything that
     
___________________(footnotes)

13 The contract that respondents offered to union-organizer
Hansen in this case had no specified duration. J.A. 191-192.
Consistent with common law, under state law such a contract
created an employment relationship that was terminable at will by
either part y. See  Miller v. Certain Teed Corp., 971 F.2d 167, 172
(8th Cir. 1992) ("Under Minnesota law, the normal employer-
employee relationship is at will[,] [and] [a]n employee is free to
leave the job at any time."); Pine River State Bank v. Mettille, 333
N.W.2d 622, 627 (Minn. 1983) (where employee is hired for an
indefinite term, employment is "at-will"). Having offered such a
contract, respondents may not credibly contend that they had an
overriding interest in discouraging transitory employment.

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31

could lead an applicant to cease employment prema-
turely. The resolution thus created no inherent conflict
between the Union's demands and the employer's
interests.
Second, the salting resolution did no more than
exempt union members from a provision in the Union's
constitution, which-like provisions in the constitutions
or bylaws of most unions-forbade members from
working for nonunion employers. Pet. App. 46a-47a, 62a;
J.A. 249-256. The resolution language quoted by the
court of appeals merely reserved the Union's right to
rescind that exemption. The court of appeals' conclusion
that the control by a union over a worker reflected in the
resolution rendered the worker a non-"employee" (Pet.
App. 10a) would thus cast doubt on the "employee" status
of the many union members whose unions have permitted
them to remain in the union while working for nonunion
employers, subject to the union's right to insist that
they resign such employment. See Florida Power &
Light, 417 U.S. at 793. In any event, it is not correct that
a union that reserves the right to demand that a member
leave a nonunion job has absolute "control" (Pet. App.
10a) over that member's job tenure with an employer. A
union will often have considerable leverage over one of
its members, whether or not it pays him to organize,
either because union membership makes it easier to
obtain future jobs in the industry, or because the union's
financial arrangements with members (i.e., pension plan
terms) reward continuous membership. However, faced
with an ultimatum to resign from a nonunion job, the
union member is always free to leave the union instead,
and will decide based on his appraisal of the ramifications
of the alternative courses.
c. The court of appeals also theorized that a paid
union organizer who applies for work "not for financial

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32

gain," but out of a motive to organize an employer's work
force, may not be `loyal" to the employer. Pet. App. 8a-
9a. The court relied on that concern in the portion of its
opinion discussing the two full-time union officials who
had applied to work for respondents. It did not make that
point with regard to the remaining union-organizer
applicants, who were unemployed. But the suggestion by
the court of appeals that an applicant's or worker's
motivation to engage in union organizing may be an
indicator of future "disloyalty" to the employer could
logically disqualify from being "employees" all workers
who are avowedly pro-unionization. An employer may
certainly adopt union-neutral hiring standards and
disciplinary rules to ensure that employees are maxi-
mally committed to the work venture. If the employer
genuinely believes that workers who hold other jobs are
likely to perform at substandard levels, he may ban or
restrict employee moonlighting. If the employer gen-
uinely believes that employees who are already finan-
cially comfortable by virtue of second jobs or wealth are
less driven to work hard, he may refuse to hire such
persons. And the employer may punish detrimental
"disloyal" conduct not inherently connected to union
affiliation or organizing. See NLRB v. Local Union No.
1229, Int'1 Bhd. of Electrical Workers (Jefferson Stan-
dard), 346 U.S. 464, 472-477 (1953) (upholding discharge
of employee for disparagement of employer's product);
Crystal Linen & Uniform Service, Inc., 274 N.L.R.B.
946, 948-949 (1985) (upholding discharge of employee for
accepting employment with competitor and for steering
customers to competitor). But an employer may not
simply infer such disloyalty from the fact that, in taking
a job, an applicant or worker is motivated actively to
engage in protected organizing activities. See Republic
Aviation, 324 U.S. at 803 n.l0; Texaco, Inc. v. NLRB, 462

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33

F.2d 812, 814 (3d Cir.) (employer may not insist that
employees forgo organizational activities, or treat such
activities as evidence of disloyalty), cert. denied, 409 U.S.
1008 (1972); Abbey's Transp, Services, Inc. v. NLRB, 837
F.2d 575, 581 (2d Cir. 1988) (employer may not terminate
union activist who had successfully organized work force
by claiming disloyalty). As we have noted, the Board has
found no evidence that paid union organizers are more
disruptive than other workers. Pet. App. 37a.14.
2. The interpretation of the term "employee" adopted
by the court of appeals would also yield anomalous
results and frustrate central policies of the Act.
Deeming a worker for hire a non-"employee" if he is to
be paid for his organizing activities would remove from
the statute's coverage not only job applicants, but also

___________________(footnotes)

14 The Board rejected a final theory, relied upon by the Fourth
Circuit in H.B. Zachry Co v. NLRB, supra, as to why requiring
employers to treat paid union organizer applicants by the same
standards as other applicants could injure employers that such a
rule could enable unions to "pack[] bargaining units with their paid
functionaries." Pet. App. 36a; see Zachry, 886 F.2d at 75. As the
Board noted, under its rules for voting eligibility in representation
elections, "employee status is not synonymous with voter eligi-
bility," and, accordingly, paid union organizers may be excluded
from voting where those organizers are "temporary" employees or
share no community of interests with other employees. Pet. App.
35a-36a (citing Multimatic Products, 288 N.L.R.B. at 1316); see
Willmar Electric, 968 F.2d at 1330 (paid union organizer's
"qualification as an `employee' is not the same as eligibility to
vote"); see also NLRB v. Trump Taj Mahal Associates, 2 F.3d 35,
38 (3d Cir. 1993) (approving exclusion from voting of employees
who have no reasonable expectation of working in the same
workplace in the future); Friendly Ice Cream Corp. v. NLRB, 705
F.2d 570, 581 (lst Cir. 1983) (approving exclusion from voting of
temporary employees). The court of appeals in this case did not
rely on that concern.

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34

paid union organizers who have begun work, and persons
who, during their employment, have taken on the role of
a paid union organizer, To deem an on-the-job worker
who meets every conventional test of employee status
not to be an "employee" simply because a union will pay
him for organizing would confound the common under-
standing of that term. See, e.g., Black's Law Dictionary
525 (6th ed. 1990) ("[e]mployee" encompasses any "person
in the service of another under any contract of hire
* * * where the employer has the power or right to
control and direct the employee in the material details of
how the work is to be performed"). Under the court of
appeals' interpretation, a mere job applicant is an
"employee" protected against antiunion discrimination,
but, anomalously, a person who is actually working for
pay and being treated by an employer in every material
respect as an employee may not be.
The court of appeals' interpretation of the term
"employee" also has the effect of leaving workers unpro-
tected against blatant acts of antiunion discrimination,
as illustrated by the treatment in this case of union
member Malcolm Hansen. Hansen, an unemployed
journeyman electrician, was hired to a contract of
indefinite duration by respondents. There is no indica-
tion that he (or any of the other paid union organizers
involved in this case) was unqualified or unwilling to
perform his duties for respondents. During the two days
that he worked for respondents before being fired,
Hansen was a prototypical worker for hire: he worked
for an hourly wage, he was subject to respondents'
discipline and control in the workplace, and respondents
(presumably regarding him as an employee) withheld
Social Security and income tax payments from his
paycheck. J.A. 201-202.

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35

Respondents fired Hansen because he attempted
during work breaks to organize other employees, as the
ALJ and the Board found. Because such employee
conduct is protected under Section 7 of the Act, Hansen
would ordinarily have been entitled to reinstatement and
backpay for the discriminatory dismissal. However,
because Hansen was receiving additional pay from the
union, the court of appeals held that he was not an
"employee," and that respondent's antiunion conduct was
therefore lawful. There is no reason to believe that
Congress intended that result. On the contrary, the
court of appeals' interpretation impedes Congress's
"central purpose" of enabling workers to organize
themselves, Phelps Dodge, 313 U.S. at 193, and of
"encouraging and protecting the collective-bargaining
process." Sure- Tan, 467 U.S. at 892. The ruling in
this case is particularly disruptive of Congress's goal
of deterring antiunion discrimination because such dis-
crimination was the only basis for firing Hansen and for
not hiring his fellow union members-the knowledge
that Hansen and the applicants were paid union orga-
nizers, or were subject to the union's salting resolution,
was acquired only afterwards. See Pet. App. 85a; Town
& Country C.A. Reply Br. 4; compare McKennon v.
Nashville Banner Publishing Co., 115 S. Ct. 879,884-885
(1995) (evidence of employee's wrongdoing acquired after
her termination does not defeat employer's liability for
violating Age Discrimination in Employment Act of
1967).
Finally, the court of appeals' reasoning could have far-
-reaching adverse consequences. Other federal statutes
accord protection to "employees" against various types
of discrimination-on account, for example, of race,
gender, and age. See, e.g., Section 701(f) of the Civil
Rights Act of 1964, 42 U.S.C. 2000e(f); Section n(f) of

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36

the Age Discrimination in Employment Act of 1967, 29
U.S. C. 630(f). Yet those statutes often supply no more
precise definition of the term "employee" than does the
Act. If that term were given the meaning that it was
given by the court of appeals, applying common-law
principles of agency, paid union organizers would be
deprived of federal protection against race, gender, and
age discrimination by employers, including, for example,
protection against sexual harassment on the job.
Moreover, the court of appeals' interpretation of the
term "employee" would similarly call into question
whether a worker for hire who happens to be a paid union
organizer is covered by the Fair Labor Standards Act of
1938, 29 U.S.C. 201 et seq., the occupational Safety and
Health Act of 19.70, 29 U.S.C. 651 et seq., the Employee
Retirement Income Security Act of 1974,29 U.S.C. 1001
et seq., or the Federal Employers' Liability Act, 45
U.S.C. 51 et seq., among many other federal laws that
relate to "employees." The very breadth of Section 2(3)'s
definition of "employee" as being "any employee"
strongly suggests that (except where one of Section
2(3)'s explicit exceptions applies) the term "employee" is
no more constricted under the National Labor Relations
Act than in its familiar, common-sense usage under
these numerous other federal statutes.

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37

       CONCLUSION

The judgment of the court of appeals should be
reversed.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

LAWRENCE G. WALLACE
Deputy Solicitor General

PAUL A. ENGLEMAYER
Assistant to the Solicitor 
General

LINDA SHER
Acting Associate General
Counsel

NORTON J. COME
Deputy Associate General
Counsel

PETER WINKLER
JOHN EMAD ARBAB
Attorneys
National Labor Relations
Board

MARCH 1995

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No. 94-947

In the Supreme Court of the United States

OCTOBER TERM, 1994

NATIONAL LABOR RELATIONS BOARD, PETITIONER

V.

TOWN & COUNTRY ELECTRIC, INC., AND
AMERISTAFF PERSONNEL CONTRACTORS, LTD.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD

DREW S. DAYS, III
Solicitor General

FREDERICK L. FEINSTEIN
General Counsel
National Labor Relations Board
Washington, D.C. 20570

---------------------------------------- Page Break ----------------------------------------

   TABLE OF AUTHORITIES

Cases:            

Page

American Hosp. Ass'n V. NLRB, 499 U.S. 606
(1991)   . . . . 12
Anthony Forest Products, Co., 231 N.L.R.B. 976
(1977)  . . . . 9
Florida Power & Light Co. V. International Bhd.
of Electrical Workers, Local 641, 417 U.S. 790
(1974) . . . . 7
Fruehauf Trailer Co., 1 N.L.R.B. 68 (1935) . . . . 12
General Cable Corp., 170 N.L.R.B. 1682 (1968) . . . . 5
J.P. Stevens & Co. V. NLRB, 380 F.2d 292 (2d
Cir.), cert. denied, 389 U.S. 1005 (1967) . . . . 12
Lechmere, Inc. V. NLRB, 502 U.S. 527 (1992 ). . . . 16
Mailing Services, Inc., 293 N.L.R.B. 565 (1989) . . . . 5
McCarty Processors, Inc., 286 N.L.R.B. 703
(1987) . . . .  5
Multimatic Products, 288 N.L.R.B. 1279 (1988 ). . . .  17
NLRB V. Allis-Chalmers Mfg. Co., 388 U.S. 175
(1967)  . . . . 7
NLRB V. Curtin Matheson Scientific, Inc., 494 U.S.
775 (1990)  . . . . 2, 16
NLRB V. Great Dane Trailers, Inc., 388 U.S. 26
(1967) . . . . 15
NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973) . . . . 17
Owens-Illinois, Inc., 271 N.L.R.B. 1235 (1984) . . . . 5
Pattern Makers' League V. NLRB, 473 U.S. 95
(1985) . . . .  7
Phelps Dodge Corp. V. NLRB, 313 U.S. 177
(1941) . . . . 13
R.J. Lallier Trucking V. NLRB, 558 F.2d 1322 (8th
Cir. 1977)   . . . .7
Sears, Roebuck & Co. V. San Diego Country Dist.
Council of Carpenters, 436 U.S. 180 (1978) . . . . 12
Sunland Construction Co., 309 N.L.R.B. 1224
(1992)  . . . . 13, 15, 16
299 Lincoln Street, Inc., 292 N.L.R.B. 172 (1988 ). . . . 17
Wagner Electric Corp., 167 N.L.R.B. 532 (1967 ). . . . 5

(I)

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II

Cases-Continued:              Page

Willmar Electric Service, Inc. V. NLRB, 968 F.2d
1327 (D.C. Cir. 1992), cert. denied, 113 S. Ct.
1252 (1993) . . . . 17

Statutes:

Labor Management Relations Act, 1947, 29 U.S.C.
  186 (c) (1) . . . . 5
Labor-Management Reporting and Disclosure Act
  of 1959, 29 U.S.C. 432(a) (5) . . . . 5
National Labor Relations Act, 29 U.S.C. 151 et
seq.: 2 (2),29 U.S.C. 152(2) . . . . 2, 3
   2(3),29 U.S.C. 152 (3) . . . . 1, 2, 3, 14, 17
   7,29 U.S.C. 157 . . . . 2, 4, 7, 8, 12, 17
   8(a) (1),29 U.S.C. 158(a) (1) . . . . 12

Miscellaneous

Note, Organizing Worth Its Salt: The Protected
  Status of Paid Union Organizers, 108 Harv. L.
  Rev. 1341 (1995) . . . .13, 17
Restatement (Second) of Agency (1958) . . . . 4, 9, 10
Webster's New World Dictionary (1962) . . . . 9

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OCTOBER TERM 1994

No. 94-947

NATIONAL LABOR RELATIONS BOARD, PETITIONER

v.

TOWN & COUNTRY ELECTRIC, INC., AND
AMERISTAFF PERSONNEL CONTRACTORS, LTD.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

   REPLY BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD

1. Respondent's brief, like the decision below (see
Pet. App. 7a-8a), is based on the premise that the
text of the National Labor Relations Act (Act) is
entirely unhelpful on the question whether a worker
for hire or an applicant for such a position who wilI
be paid by a union for his organizing activity is a
statutorily protected "employee." Respondent argues
(Br. 8, 10) that the Act's definition of "employee"
in Section 2 (3), 29 U.S.C. 152(3), is "circular" be-
cause it defines "employee" as "any employee" sub-
ject to seven specific exclusions; from this, respon-
dent claims ( Br. 10, 38-39) that it follows that
whether a paid union organizer is an "employee"

(1)

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2               
                       
must be answered wholly by reference to the common
law of agency. Respondent, however, elects not to
respond to our contention (Br. 17-20) that another
provision of the Act-Section 7, 29 U.S.C. 157-
supplies considerable guidance on that question. Sec-
tion 7 guarantees "employees" the right to or-
ganize, and thus makes it clear that a worker who
is otherwise a statutory "employee" (such as a
worker for hire) does not forfeit that status by en-
gaging in union organizing. Under the canon ex-
pressio unius est exclusio alterius, the absence of
any exclusion in Section 2(8) for an employee who
will be paid by a union for engaging in those pro-
tected organizing activities strongly implies that such
a worker is a statutory "employee." Thus, as we
have explained (Br. 13-23), the Board's interpreta-
tion that a paid union organizer is an "employee"
within the meaning of Section 2(3) is correct, and,
in any event, should be upheld as "rational and con-
sistent with the Act." NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 786-787 (1990).
To the extent that respondent makes any statutory
argument, it is that a paid union organizer is not
an "employee" because an organizer works for a
labor union, which, respondent asserts, is not an
"employer" under Section 2(2) of the Act, 29 U.S.C.
152 (2). Respondent therefore reasons, under Section
2(3), which excludes persons "employed by * * * any
other person who is not an employer as herein de-
fined," 29 U.S.C. 152(3), that a union's organizers
cannot be statutory "employees." See Br. 39 n.31;
see also Chamber of Commerce Amicus Br. 22-29;
Associated General Contractors of America Amicus
Br. 9.

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3

Respondent's reliance on Section 2(2) is unpersua-
sive for two reasons, as the Board recognized in its
decision. See Pet. App. 39a n.36. First, a labor
union is an "employer" of its own employees, as the
text of Section 2(2) makes clear. Section 2(2)
provides:

The term "employer" includes any person act-
ing as an agent of an employer, directly or in-
directly, but shall not include the United States
or any wholly owned Government corporation, or
any Federal Reserve Bank, or any State or po-
litical subdivision thereof, or any person subject
to the Railway Labor Act [45 U.S.C. 151 et
seq.], as amended from time to time, or any
labor organization (other than when acting as
an employer), or anyone acting in the capacity
of officer or agent of such labor organization.

29 U.S.C. 152(2) (emphasis added). More funda-
mentally, it is immaterial whether a worker's union
is a statutory "employer," because the worker de-
rives his status as a statutory "employee" not from
his relationship with his union, but from his work
status, or attempted employment, with the hiring
entity in question. For example, an agricultural em-
ployee (who is excluded under Section 2(3)) who
moonlights for another employer is not deprived of
"employee" status at that second employer by virtue
of the nature of his agricultural work for the first.
Likewise, an employee of the United States (who is
excluded under Section 2(3 ) because the United
States is not an "employer" under Section 2(2)) may
be a statutory "employee" in his capacity as a worker
for hire at a second job. In short, the limitations on
the Act's definition of "employer" have no effect on
the "employee" status of a paid union organizer

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 4

who works for, or applies for a job with, an entity
that is a statutory "employer." And it is common
ground that respondent Town & Country is such an
"employer."
2. In any event, respondent misapplies the princi-
ples of common law agency on which it relies. As we
show in our opening brief (Br. 23-33), those prin-
ciples are fully compatible with deeming a paid union
organizer an "employee."
a. Respondent's first common-law argument is that
treating a paid union organizer as an "employee"
conflicts with the precept that a person may not be
an agent of an employer unless the person "is free
to act in furtherance of the employer's interests and
to submit to the employer's control." Br. 11. Re-
spondent asserts ( Br. 16-17, 20-23, 26) that workers
for hire who are paid union organizers are beyond
employers' control, and that the union organizers in
this, case were in fact under the "pervasive" control
of the Union during work hours by virtue of the
Union's salting resolution. As a result, respondent
claims, it lacked the ability to direct their work or
maintain discipline over them-"the basic elements
[of a] bona fide employment relationship." Br. 25.
It is true that, at common law, a servant is a
person "whose physical conduct in the performance
of the service is controlled or is subject to the right
to control" by his master or employer. Restatement
(Second) of Agency 2(2), at 12 (1958). But there
is no foundation for respondent's claim that an em-
ployer is deprived of control over a union-organizing
worker merely because a union pays that worker for
engaging in that protected activity. As we have noted
(Br. 25-26, 32), an employee's Section 7 right to
organize leaves the employer free to impose work

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5

rules (including rules that reasonably restrict or-
ganizing) and to discipline or discharge an employee
who violates such rules. A union's agreement to pay
an employee for organizing does no more than add
an extra incentive to undertake such activity within
those workplace rules. Indeed, the labor laws recog-
nize that it is Legitimate for an employee to receive
pay from a union while working for an employer.1.

___________________(footnotes)

1. The Labor Management Relations Act of 1947 and the
Labor-Management Reporting and Disclosure Act of 1959
both recognize that a union may pay an employee for union
service where the employee is also working for, and being
paid by, an employer covered by the NLRA. See 29 U.S.C.
186 (c) (1) (prohibition on employer payments to officers and
employees of a labor organization does not apply to any such
"officer or employee of a labor organization[] who is also an
employee * * * of such employer"); 29 U.S.C. 432(a) (5)
(requiring that officers and employees of labor organizations
report any financial transaction with an "employer whose
employees his organization represents or is actively seeking
to represent, except work performed and payments and bene-
fits received as a bona fide employee of such employed') (em-
phasis added).
Respondent claims (Br. 20-21) that, in various cases, the
Board itself has recognized that the payment of money or
gifts "can, in effect, destroy the ability of an employee to act
in the capacity of a bona fide independent employee." But the
cases respondent cites concern the separate issue whether
the integrity of a Board-supervised election was violated by
virtue of prelection gifts to potential voters. See Mailing
Services, Inc., 293 N.L.R.B. 565 (1989); McCarty Processors,
Inc., 286 N.L.R.B. 703 (1987); Owens-Illinois, Inc., 271
N.L.R.B. 1235 (1984); General Cable Corp., 170 N.L.R.B.
1682 (1968); Wagner Electric Corp., 167 N.L.R.B. 532
(1967). None of those cases suggests that the payment or
gift deprived the subject individuals of their status under the
Act as "employees."

---------------------------------------- Page Break ----------------------------------------

6

 Contrary to respondent's claim, the salting resolu-
tion (J.A. 256) to which the union members in this
case were subject also did nothing to deprive respon-
dent of control over those members. The resolution in
no respect suggests that union members working for
a nonunion employer should perform work in a
subpar manner or violate work rules, and the record
does not indicate that the Union sought to exercise
any authority over the manner in which Malcolm
Hansen, the one paid orgarizer whom respondent
hired, performed his work for respondent. As we
have. noted (Br. 30-31), the resolution simply ex-
empts union members from a provision in the Union's
bylaws that forbade members from working for non-
union employers, and the right reserved by the Union
to withdraw that exemption leaves the union member
free to elect to continue work for the employer and
to resign from the Union. Moreover, to the extent
that respondent was concerned that employees would
prove transitory, it was free to inquire, pursuant to
a union-neutral policy, whether applicants were
aware of anything- that could lead the applicant, if
hired, to resign before a given term had run.2.
      
___________________(footnotes)

2 Respondent bases its claim that it was unable to exercise
authority over Hansen on the fact that the Board rejected
its attempt to discharge Hansen as unlawfuI. Br. 4, 5, 24-25.
But the Board rejected as lacking credibility respondent's
claim that Hansen's performance had been subpar and that
Hansen had engaged in union-organizing activity during work
time; instead, it found, baaed on testimony that it credited,
that respondent had fired Hansen because he had engaged in
protected organizational activity. Respondent's related claim
(Br. 3 n.6, 8, 25 n.22) that the administrative law judge
employed an unlawful presumption is unfounded and, in any

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 7

Respondent also claims (Br. 17-18) that salting
resolutions such as the one in this case deprive union
organizers of "their freedom to exercise any right
under 7 of the NLRA," such as the right to con-
clude that "the employees would be better off without
the Union." On the contrary, the right of employees
to form and join labor organizations, protected by
Section 7, includes the right of a union to prescribe
lawful, rules for its members, including a rule that
prohibits a union member from working for a non-
union employer. See NLRB v. Allis-Chalmers Mfg.
Co., 388 U.S. 175 (1967) (union that fined members
for crossing its picket line during strike did not com-
mit unfair labor practice of restraining or coercing
employees in exercise of Section 7 rights) ; Florida
Power & Light Co. v. International Bhd. of Electrical
Workers, Local 641, 417 U.S. 790, 793" (1974). A
union's discipline of a member who does not comply
with the salting resolution does not abridge the mem-
ber's Section 7 right to refrain from supporting the
union, because, a's we have noted, the member is free
to escape discipline by resigning from the union.
Cf.. Pattern Makers' League v. NLRB, 473 U.S. 95,
102-103 (1985 ) (noting that, "[t]raditionally, union
members were free to resign and escape union dis-
cipline," and upholding finding that union committed
unfair labor practice in levying fines for violating

___________________(footnotes)

event, that issue is not before this Court. The ALJ's decision
(Pet. App. 43a-133a) sets out an ample factual basis for his
"findings of antiunion discrimination. Among those facts was
respondent's opposition to the unionization of its employees.
"See R.J. Lallier Trucking V. NLRB, 558 F.2d 1322, 1325 (8th
Cir. 1977) ("a general-bias or hostility toward the union * * *
are [sic] proper and highly significant factors for Board
evaluation in determining motive").

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8

union rule that forbade members to resign during
a strike). Respondent's argument that a union mem-
ber who agrees to abide by a rule which a union and
its members have lawfully adopted is not engaged
in concerted activity protected by Section 7, but is
instead improperly "controlled" by the union, would
eviscerate the Section 7 right to form and join labor
organizations and the principle of voluntary union
membership.
Respondent and its amici rely on selected union
manuals and other materials outside the record of
this ease in an attempt to show that, as a rule, paid
union organizers are directed not only to resign em-
ployment upon demand, but also to engage in disrup-
tive activity while on the job. See Resp. Br. 18, 20,
28-30; " Associated General Contractors of America
Amicus Br. 12-14, 27-28; Labor Policy Association
Amicus Br. 11-15. The organizers in this case, how-
ever, were subject to no such directive to engage in
disruptive activity; moreover, respondent did not
rely on such a theory when it fired Hansen for en-
gaging in protected organizing activity, being un-
aware at the time that Hansen was working pursuant
to a salting resolution or was being paid for his or-
ganizing efforts. See NLRB Br. 35. More generally,
the Board in this case considered and rejected re-
spondent's claim that paid union organizers as a class
are more disruptive than other workers. See Pet.
App. 37a ("No body of evidence has been presented
that would support any generalized, or specific, find-
ing that paid union organizers as a class have a
significant, or indeed any, tendency to engage in"
acts "inimical to the employer's legitimate inter-
ests."). An employer may of course fire a paid union
organizer who does engage in unprotected disruptive

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 9

practices and is free not to hire such an applicant if
the applicant has signalled his intention to engage in
disruptive activity if hired. See Anthony Forest
Products Co., 231 N.L.R.B. 976 (1977) (no violation
in termination of paid organizer for just cause). The
employer's latitude to take such action is illustrated
by the case cited in the report of the General Counsel
of the Board to which respondent repeatedly refers
(Br. 18-19,27, 30-31): in that case, the Board's Gen-
eral Counsel refused to issue a complaint regarding
the discharge of paid union organizers who engaged
in repeated disruptions of the employer's operations.
b. Respondent also asserts that treating a paid
union organizer as an "employer" is inconsistent
with a common-law principle which respondent char-
acterizes as follows (Br. 12) : "A person may not
simultaneously be the agent of two masters with
contflicting interests." Respondent, however, mischar-
acterizes the common law and, more fundamentally,
fails to recognize that the Act has modified the com-
mon law by protecting the employee's right to engage
in organizing activity.
Section 226 of the Restatement (Second) of Agency
provides that "[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 abandon-
ment of the service to the other." Thus, the touch-
stone for determining, under the common law,
whether an individual may be the employee of two
employers is not whether the interests of the two
employers conflict in some respect, but whether, in
working for one, the employee has "abandoned" his
employment with the other. See Webster's New
World Dictionary 2 (1962) ("abandon" means to
"give up [something] completely," or "a complete

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10

rejection of one's responsibilities"). The commentary
to Section 226 makes clear that the issue of employee
status is distinct from the issue "whether the employee
has breached a duty to the employer. It explains that,
even where- "giving service to two masters at the
same time" involves "a breach of duty by the servant
to one or both of them," a person "may cause both
employers to be responsible for [that] act." Section
2.26, cmt. a, at 499. The "commentary also notes that
a person "may be the servant of two masters, not
joint employers as to the same act, if the act is within
the scope of his employment for both (see  236) ,"
and if the act is "not such "as to which an intent to
serve one necessarily excludes an intent to serve the
-other." Ibid. Section 236, in turn, provides (at 523)
that "[c]onduct may be within the scope of employ-
ment, although done in part to serve the purposes of
the servant or of a third person." The accompanying
commentary explains that that rule applies to situa-
tions in which "the servant, although performing his
employer's work, is at the same time accomplishing
his own objects or those of a third person which
conflict with those of the master." Section 236, cmt.
a, at 523 (emphasis added).3.  Thus, the existence of
a coflict, between a worker's masters or employers
          
___________________(footnotes)

3 The Restatement offers the following example: "A, servant
of P, is directed to deliver goods upon the route in a certain
order. A, who has received a gratuity from T, a customer,
makes delivery in inverse order. All the deliveries are within
the scope of employment." Section 236, illus. 3, at 523. Thus,
at common, law, an individual remains within the scope of his
employment, and therefore retains his status as an employee,
"even where he has been paid by a third party to perform his
duties in a manner inconsistent with the employer's express
instructions.

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11

does not alone deprive the worker of "servant" or
"employee" status, although it may, absent statutory
protection for the activity that creates the conflict,
supply a basis for lawful discharge of the worker.4.
Under those principles, it is apparent that a worker
such as Hansen does not "abandon" his "employee"
status by receiving pay from a union for organizing
the work force. The act of organizing does not in-
herently involve abandoning one's workplace duties
or straying outside the scope of employment; on the
contrary, until he was unlawfully discharged, Hansen
reported to work daily and, as the ALJ found (Pet.
App. 119a), properly performed his work as an elec-
trician on respondent's jobsite. 5. To the extent that an
employer may rue the fact that an employee wishes

___________________(footnotes)

4 Thus, the common-law authorities upon which respondent
relies (Br. 14 n.15) are inapposite, for they merely recognize
the employee's duty of faithful service to the employer.
5 Advancing a new theory of abandonment respondent sug-
gests that Hansen was in fact employed by a different concern
at the same time he worked for respondent, noting that " [tlhe
union's records show that Hansen was employed by a Union
contractor before, after and during the time he was ostensibly
working" for respondent. Br. 5 n.10; see also Br. 25. Although
the Union's hiring hall records appear to indicate that Hansen
was employed by another electrical concern during that
period, those records are apparently inaccurate, for, as re-
spondent is well aware, Hansen could not have been working
for another employer during the period he was employed by
respondent. Respondent's work was performed at a remote
site, and during his work for respondent, Hansen shared
living quarters with respondent's other employees and was
dependent on respondent for transportation to and from
the jobsite. Pet. App. 81a, 85a, 94a, 101a n.61. Hansen's
employment application (J.A. 194-196) indicates that he was
last employed the month before he began work for respondent.

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12

to engage in organizing or may regard a successful
organizing campaign as potentially deleterious to its
profitability, Section 7 of the Act, by giving protec-
tion to the right to organize, precludes an employer
from claiming abandonment based on those concerns.
See NLRB Br. 24-25, 32-33; see also Pet. App. 37a
("The fact that paid union organizers intend to or-
ganize the employer's work force if hired establishes
"neither their unwillingness nor their inability to per-
form quality services for the employer.").
3. Respondent (Br. 42-43) and its amici (Labor
Policy Association Amicus Br. 20; Associated Gen-
eral Contractors of America Amicus Br. 26) also
liken a union's practice of authorizing members to
serve as paid union organizers while working for a
nonunion employer to the impermissible employer
practice of using employees to spy on co-workers'
union activity. The analogy is fundamentally inapt.
An employer's use of "spies" violates the Act because
it tends to coerce and restrain employees' organiza-
tional activity while advancing no legitimate em-
ployer purpose. See J.P. Stevens& Co. v. NLRB, 380
F.2d 292, 296 (2d Cir.) (upholding Board's finding
that an employer's surveillance of union organizers'
motel rooms and `recruitment of antiunion employees
to attend union meetings violated Section 8(a) (1)
of the NLRA, 29 U.S.C. 158(a) (1)), cert. denied,
389 U.S. 1005 .(1967); Fruehauf Trailer Co., 1
N.L.R.B. 68, 73, 77-78 (1935). By contrast, as Sec-
tion 7 of the Act reflects, organizational activity on
behalf of a union "is at the very core of the purpose
for which the [Act] was enacted," Sears, Roebuck
& CO. v. San Diego County Dist. Council of Carpen-
ters, 436 U.S. 180, 206 n.42 (1978) ; see also Amer-
ican Hosp. Ass'n v. NLRB, 499 U.S. 606, 609 (1991),

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13

and, as the Board has noted, the Act presupposes
"that an employee may legitimately give allegiance to
both a union and an employer," Pet. App. 38a. See
Note, Organizing Worth Its Salt: The Protected
Status of Paid Union Organizers, 108 Harv. L. Rev.
1341, 1356 (1995) ("The NLRA delimits the em-
ployer's control, absolute at common law, over or-
ganizational activity and forecloses the contention
that loyalty to a union interferes with loyalty to the
employer's and the employees' common enterprise." ).
See also Phelps Dodge Corp. v. NLRB, 313 U.S. 177,
182 (1941 ) ["Protection of the workers' right to self-
organization does not curtail the appropriate sphere
of managerial freedom; it furthers the wholesome
conduct of business enterprise." ).6.
4. In its brief supporting respondents, the, Cham-
ber of Commerce (Br. 14-19) notes that the Board
has held that an employer, under the Act, may refuse
to hire a paid union organizer during a strike. See
Sunland Construction Co., 309 N.L.R.B. 1224, 1231
(1992). See also Amicus Associated General Con-
tractors of America Amicus Br. 27. Noting that the 

___________________(footnotes)

6 Because the Act presupposes no irreconcilable conflict be-
tween management interests and union organizing, amicus
Chamber of Commerce errs in casting the paid union or-
ganizer (Br. 19) as "an agent of the employer's adversary."
In any event, while nonunion employers who are "bent upon
keeping their operations nonunion" may regard the presence
of the paid union organizer in the workplace as "reminiscent
of the Trojan Horse," Sunland Construction Co., 309 N.L.R.B.
1224, 1232 (1992) (Member Oviatt, concurring), the decisive
fact under the Act is that, as Member Oviatt noted "the
legislative materials and Supreme Court decisions interpret-
ing those materials simply do not provide support for a policy
judgment to exclude union organizers from the definition of
`employee,'" ibid.

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14

Act protects employees' right to strike, the Chamber
of Commerce argues that the Board's distinction be-
tween the strike setting (where an employer has the
latitude not to hire an applicant based on his status
as a paid union organizer) and the non-strike setting
(where it does not) is "untenable" (Br. 16).
That argument is without merit. As we explain
in our opening brief (Br. 27 n.11), the Board did
not base its decision in Sunland on the premise that,
during a strike, the paid union organizer is a non-
"employee" under Section 2(3 ) of the Act and hence
lawfully subject to antiunion discrimination. Rather,
the Board held that a refusal to hire a paid union
organizer in the strike context does not constitute
unlawful antiunion discrimination, because, in that
distinct context, the employer has a realistic basis
for believing that a paid union organizer, if hired,
will act to the detriment of the employer by encour-
aging other workers to strike. The Board explained:
    
In our experience, when a company is struck
it is not "business as usual." The union and
employer are in an economic battle in which the
 union's legitimate, objective is to shut down the
employer in "order to force it to accede to the
union's demands. The employer's equally legiti-
  mate -goal is usually to resist by continuing pro-
duction, often with nonunit employees, nonstrik-
ers, and replacements. Thus, an employer faced
with a strike. can take steps aimed at protecting
itself from economic injury. For example, an
employer can permanently replace the strikers,
it. can lock out the unit employees and it can
hire temporary replacements for the locked-out
 employees. Consistent with these principles, we
believe that the employer can refuse to hire, dur-
ing the dispute, an agent of the striking union.

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15

Sunland Construction Co., ,309 N.L.R.B. at 1230-1231
(footnotes omitted) ; see id. at 1231 ("given the con-
flict between an employer's interest * * * in operating
during a strike and a striking union's evident inter-
est in persuading employees not to help to operate,
* * * the [employer] has a `substantial and legiti-
mate' business justification for declining to hire a
paid agent of the Union for the duration of the
strike" ) (quoting NLRB v. Great Dane Trailers, Inc.,
388 U.S. 26,34 (1967)).           
The Board's distinction between the non-strike and
strike contexts was reasonable. An employer ordi-
narily cannot refuse to hire a paid union organizer
solely because of his status as such, the Board ex-
plained, because, absent a strike, there is no basis
for inferring detriment to the employer. Sunland
Construction Co., 309 N.L.R.B. at 1231 n.41. Rather,

given the statutory protection for forming or
joining unions, it cannot properly be said that
there is any inherent conflict between carrying
out the duties of an employee and operating as
a paid union organizer. The aim of inducing
fellow employees to join a union is entirely con-
sistent with being a competent employee who
obeys work rules such as those time-and-place
restrictions on union solicitation that are lawful
 under Republic Aviation Corp. v. NLRB [324
U.S. 793 (1945)] and its progeny. Thus, al-
though we would not permit an employer to pre-
sume generally that paid organizers will be dis-
loyal employees, we see no problem with a pre-
sumption that someone who is being, paid by the
organization that is. seeking to induce employees
to withhold services would not be inclined whole-
heartedly to provide services for the duration of
the organization's effort.       
                 
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16

Ibid. Thus, the decision in Sunland, far from being
a "paradox" (Chamber of. Commerce Amicus Br. 15),
reflects the Board's sensitivity to the competing rights
of management and of labor in the strike context,
and its recognition that, in that discrete setting,
legitimate predictions of deleterious employee be-
havior can be made based on an applicant's status as
a paid union organizer.  Sunland does not undermine
the Board's determination that such organizers are,
in all contexts, "employees" protected against unjusti-
fied antiunion discrimination.7.
5. Finally, the Chamber of Commerce contends
Br. 12, 25) that by treating paid union organizers
as "employees," the Board has executed an "end run"
around Lechmere, Inc. v. NLRB, 502 U.S. 527
(1992), in which this Court upheld the right of em-
ployers to restrict the access of nonemployee or-

___________________(footnotes)

7. Attempting to undermine the distinction drawn by the
Board in Sunland, the Chamber of Commerce (Br. 16) postu-
lates that, if an employer hired a paid union organizer, and if
the union then called a strike but instructed the organizer
"to continue to work behind the picket line," the employer
would then be allowed, under Sunland, to discharge the same
organizer whom, earlier, it had been forbidden to discriminate
against in hiring. The Chamber of Commerce's resolution of
that farfetched hypothetical does not, however, follow from the
Board's decision in Sunland. Sunland involved an employer's
refusal to hire paid union organizers; accordingly, the Board
did not attempt to balance the separate interests that would
be implicated by the firing, during a strike, of an incumbent
employee on account of his status as a paid union organizer.
The Chamber's real argument-that the Sunland exception
should become the law in all contexts, not just the setting
involving applicants during a strike-ignores Congress's grant
to the Board of "primary responsibility for developing and
applying national labor policy." Curtin Matheson, 494 U.S.
at 786.

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17

ganizers to their property. In vindicating the prop-
erty rights of employers, however, the Court in
Lechmere did not rely on Section 2(3) of the Act,
nor did it limit the scope of Section 7's protections
of employee union activity. Workers for hire who do
not fit within any of Section 2(3)'s specific. exemp-
tions are not outsiders, but are employees, and as
such are lawfully on" the employer's property. Thus,
as we note in our opening brief (Br. 27 n.12), the
Board's decision is completely consistent with Lech-
mere. See also Pet. App. 36a-37a; Note, Organizing
Worth Its Salt: The Protected Status of Paid Union
Organizers, 108 Harv. L. Rev. at 1348-1350.8

     *  *  *  *  *
___________________(footnotes)

8 The Chamber of Commerce's claim (Br. 21) that paid
union organizers will interfere with Board representation
elections is also meritless and, in any event, not presented by
this case. As our opening brief points out (Br. 33 n.14),
employee status is not synonymous with voting eligibility, and
the Board has routinely denied voting rights to paid union
organizers who do not intend to remain with the employer.
See Multimatic Products, 288 N.L.R.B. 1279, 1316 (1988);
299 Lincoln Street, Inc.j 292 N.L.R.B. 172, 180 (1988), and
cases cited therein. While the paid union organizer's "employ-
ment -would give him a better perch from which to propa-
gandize * * *, [that] would [also] be true for any union
zealot who got a job with [the employer]."  Willmar Electric
Service, Inc. v. NLRB, 968 F.2d 1327, 1330 (D.C. Cir. 1992),
cert. denied, 113 S. Ct. 1252 (1993). In any event, if an em-
ployer believes that the presence of paid union organizers has
interfered with an election, the appropriate time to raise that
contention is in the certification proceeding (see, e.g., NLRB
V. Savair Mfg. Co., 414 U.S. 270, 270-272 (1973)), not in an
unfair labor practice proceeding arising out of a discharge or
refusal to hire. 

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18

For the foregoing reasons and those stated in our
opening brief, the judgment of the court of appeals
should be reversed.

Respectfully submitted.

           DREW S. DAYS, III
            Solicitor General

FREDERICK L. FEINSTEIN
General Counsel
National Labor Relations Board

MAY 1995