Tradesource, Inc. v. National Labor Relations Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TRADESOURCE, INCORPORATED, 
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
PLUMBERS AND GASFITTERS, LOCAL
12, of the United Association of
Journeymen and Apprentices of the  No. 00-1440
Plumbing and Pipe Fitting Industry
of the United States and Canada,
AFL-CIO,
Intervenor.
BUILDING AND CONSTRUCTION TRADES
DEPARTMENT,
Amicus Curiae.

2 TRADESOURCE, INC. v. NLRB
NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.
TRADESOURCE, INCORPORATED,
Respondent,
PLUMBERS AND GASFITTERS, LOCAL
12, of the United Association of
Journeymen and Apprentices of the  No. 00-1555
Plumbing and Pipe Fitting Industry
of the United States and Canada,
AFL-CIO,
Intervenor.
BUILDING AND CONSTRUCTION TRADES
DEPARTMENT,
Amicus Curiae.

On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board.
(1-CA-37771)
Argued: April 3, 2001
Decided: August 28, 2001
Before TRAXLER and GREGORY, Circuit Judges, and
Lacy H. THORNBURG, United States District Judge for the
Western District of North Carolina, sitting by designation.
Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.
TRADESOURCE, INC. v. NLRB 3
COUNSEL
ARGUED: Jonathan J. Spitz, JACKSON, LEWIS, SCHNITZLER &
KRUPMAN, Atlanta, Georgia, for TradeSource. Julie Brock Broido,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. Dinah Susan Leventhal, O’DONOGHUE & O’DONOGHUE,
Washington, D.C., for Intervenor. ON BRIEF: Dion Y. Kohler,
JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Atlanta, Geor-
gia, for TradeSource. Leonard R. Page, General Counsel, Linda Sher,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Board. Sally M. Tedrow, O’DONOGHUE &
O’DONOGHUE, Washington, D.C.; Robert M. Cheverie, Thomas
Brockett, ROBERT M. CHEVERIE & ASSOCIATES, P.C., East
Hartford, Connecticut, for Intervenor. Nora H. Leyland, Jonathan D.
Newman, SHERMAN, DUNN, COHEN, LEIFER & YELLIG, P.C.,
Washington, D.C., for Amicus Curiae.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
TradeSource, Inc. petitions this court for review of the March 31,
2000 Decision and Order of the National Labor Relations Board (the
"Board") determining that TradeSource violated § 8(a)(1) and
§ 8(a)(5) of the National Labor Relations Act, see 29 U.S.C.A.
§§ 158(a)(1), (a)(5) (West 1998) (the "Act"), by refusing to recognize
and bargain with the Plumbers and Gasfitters Local 12 (the "Union")
after the Board rejected TradeSource’s challenge to ballots cast by
several voluntary union organizers and certified the Union as the
exclusive bargaining representative. The Board cross-petitions for
enforcement of its Decision and Order. For the reasons stated below,
we deny TradeSource’s petition for review and grant the Board’s
cross-petition for enforcement.
4 TRADESOURCE, INC. v. NLRB
I.
TradeSource is engaged in the business of providing temporary
workers to general contractors and subcontractors in the construction
industry. In March 1998, the Union filed a petition with the Board,
seeking to represent a bargaining unit of "all full-time and regular
part-time plumbers" employed by TradeSource in a specified area sur-
rounding Boston, Massachusetts.
Because the bargaining unit dealt with construction employees who
were subject to sporadic employment, the parties stipulated prior to
the election that the Steiny/Daniel criteria would be used to determine
the eligibility of voters. See Steiny & Co., 308 NLRB 1323, 1324-26
(1992); Daniel Construction Co., 133 NLRB 264, 266-67 (1961), as
modified, 167 NLRB 1078, 1079 (1967). Under this criteria, employ-
ees who were (1) employed by TradeSource for 30 working days or
more within the 12 months preceding the eligibility date for the elec-
tion or (2) had some employment with TradeSource during the 12-
month period, and had been employed for 45 working days or more
within the 24-month period preceding the eligibility date, were eligi-
ble to vote.
In June 1998, the Board conducted the representative election. Of
the twelve eligible ballots cast, three were cast for the Union, four
were cast against the Union, and five were challenged by Trade-
Source on the ground that they were cast by voluntary union organiz-
ers who had sought and obtained employment with TradeSource for
the sole purpose of gaining voter eligibility and organizing the com-
pany for the Union. Consequently, TradeSource asserted, they were
temporary employees who did not share a "community of interest"
with the other unit members, and were ineligible to vote. The chal-
lenged ballots were cast by Union members John Broderick, Joseph
Kierce, John Caissie, John McKenzie, and George Rourke. A hearing
on the challenges was held in August 1998, at which time the parties
stipulated that the ballot cast by Broderick was ineligible under the
Steiny/Daniel criteria.
According to the evidence presented, Union members who had
agreed to act as voluntary union organizers submitted a group applica-
tion for employment with TradeSource in the fall of 1996. They
TRADESOURCE, INC. v. NLRB 5
included Kierce, McKenzie, and Rourke. As part of its union-
organizing efforts, the Union trains its members in the COMET (Con-
struction Organizing Membership Education and Training) program
in which members and others receive training in organizing tech-
niques. Kierce had attended a COMET training program some years
before applying to TradeSource, whereas McKenzie and Rourke
attended a COMET training program after they applied to Trade-
Source. Caissie, who did not become a union employee until after he
was employed by TradeSource, denied having attended such a pro-
gram, but also agreed to act as a voluntary union organizer and
received instructions on how to assist the organizing efforts.
McKenzie was unemployed when he applied for work at Trade-
Source. He was hired in January 1998, and worked intermittently until
early May 1998 when he was laid off. Rourke was also unemployed
when he applied for work at TradeSource, but was not hired until
March 1998. He worked until April 1998, when he went on a prear-
ranged vacation, and was not successfully placed by TradeSource
after his return. Caissie accepted employment with TradeSource in
March 1998, but was laid off in April 1998. After being laid off, each
of the men obtained jobs with union signatory companies and never
returned to work with TradeSource.
There appears to be no dispute that McKenzie, Rourke, and Caissie
were voluntary union organizers; indeed, the Union notified Trade-
Source in March 1998 that the three men were acting as voluntary
union organizers. Generally, union members are not permitted to
work for contractors who do not have a collective bargaining relation-
ship with the Union, but the Union may give its members permission
to do so. In exchange for their agreeing to act as voluntary union
organizers, these men were given permission by the Union to work
for the non-unionized TradeSource. They were not, however, given
direct monetary compensation or other employee-type benefits by the
Union for their organizing efforts, nor did they hold any elected or
appointed position with the Union.1 Upon being hired, none of the
men were given a specified date of termination, nor did they discuss
1
McKenzie served on the Union’s election committee in either 1996 or
1997, for which he received compensation, but was not a paid union
organizer at the time of his hire by TradeSource.
6 TRADESOURCE, INC. v. NLRB
any specific date on which they intended to leave employment. Had
they voluntarily quit their employment with TradeSource, or been
fired for cause prior to completion of their last job, however, they
would not have remained qualified to vote under the Steiny/Daniel
criteria. See Steiny, 308 NLRB at 1326.
At the conclusion of the hearing on the ballot challenges, the hear-
ing officer recommended that the four votes be counted. The Board
agreed, rendering the election 7-4 in favor of unionization. On
November 17, 1999, the Board certified the Union as the exclusive-
collective bargaining representative of all full-time and part-time
plumbers employed by TradeSource in the selected cities and towns
in Massachusetts. TradeSource, however, refused to recognize and
bargain with the Union or furnish information requested by the Union
in its role as bargaining representative, prompting the instant charge
by the Board’s General Counsel alleging violations of §§ 8(a)(5) and
(1) of the Act.2 In response, TradeSource has admitted its refusal to
bargain and to furnish information, but contests the validity of the cer-
tification based upon the ballots of Caissie, McKenzie, and Rourke.3
The NLRB delegated its authority to a panel of the Board, which
granted the General Counsel’s motion for summary judgment by
Decision and Order dated March 31, 2000. TradeSource was ordered,
inter alia, to bargain on request with the Union and to furnish the
Union with the requested information. This appeal followed.
II.
When presented with a representation petition, the Board is
charged with the responsibility, and has broad discretion, to define the
appropriate bargaining unit. See NLRB v. Action Auto. Inc., 469 U.S.
490, 494 (1985); Sandvik Rock Tools, Inc. v. NLRB, 194 F.3d 531,
534 (4th Cir. 1999). In exercising this authority, the Board has histori-
cally focused on whether the employees sought to be included in a
single bargaining unit share a sufficient "community of interest" to be
2
Because an employer cannot obtain direct review of the Board’s certi-
fication, a refusal to bargain is the "proper path to judicial review of the
Board’s election decision." Rosslyn Concrete Constr. Co. v. NLRB, 713
F.2d 61, 63 n.1 (4th Cir. 1983).
3
TradeSource abandoned the challenge to Kierce’s ballot.
TRADESOURCE, INC. v. NLRB 7
included together. See Sandvik, 194 F.3d at 535. Among other things,
the Board examines whether the employees have similar "employ-
ment benefits, hours of work, and other terms and conditions of employ-
ment."4 Sandvik, 194 F.3d at 535 (internal quotation marks omitted);
Rosslyn, 713 F.3d at 63 (noting that employees share a community of
interest with other eligible employees if "they work side-by-side with
other employees, receive commensurate wages, and share identical
working conditions").
It is widely recognized, however, that "workers who have no rea-
sonable expectation of working in the same workplace in the future
cannot share a community of interest." NLRB v. Trump Taj Mahal
Assocs., 2 F.3d 35, 38 (3rd Cir. 1993). "The Board’s responsibility is
to identify a group of positions such that those serving in the unit can
reasonably be expected to share a community of interest over time."
Id. Thus, for example, casual or temporary employees of an employer
who do not share the requisite community of interest with full-time
or regular part-time employees are ineligible to vote in a representa-
tion election. See Friendly Ice Cream Corp. v. NLRB, 705 F.2d 570,
581 (1st Cir. 1983) (upholding Board’s exclusion of two full-time col-
lege students who worked on a regular part-time basis during the
summer, but had the intention of returning to school in the fall).
4
Specifically, the Board examines twelve equally important factors to
determine whether the employees share a sufficient "community of inter-
est":
(l) similarity in the scale and manner of determining the earn-
ings; (2) similarity in employment benefits, hours of work, and
other terms and conditions of employment; (3) similarity in the
kind of work performed; (4) similarity in the qualifications, skills
and training of the employees; (5) frequency of contact or inter-
change among the employees; (6) geographic proximity; (7) con-
tinuity or integration of production processes; (8) common
supervision and determination of labor-relations policy; (9) rela-
tionship to the administrative organization of the employer; (10)
history of collective bargaining; (11) desires of the affected
employees; (12) extent of union organization.
Sandvik, 194 F.3d at 535 (internal quotation marks omitted).
8 TRADESOURCE, INC. v. NLRB
A.
Although temporary employees and former employees who are not
employed as of the eligibility date are not generally eligible to vote
in a union election, special considerations in determining an appropri-
ate bargaining unit arise in the context of the construction industry.
Construction industry employment is by nature sporadic and tempo-
rary, such that many construction employees work for a number of
different employers in any given year, with their employment ending
with a lay-off or project completion. Thus, the Board adopted the
Steiny/Daniel eligibility formula to ensure that a bargaining unit fairly
represents all employees who have a legitimate "continuing interest
in working conditions which would warrant their participation in an
election to determine a representative for collective bargaining con-
cerning the tenure and conditions of their employment." Daniel, 133
NLRB at 266. The formula enfranchises "all employees in the unit
who have been employed for a total of 30 days or more within the
period of 12 months, or who have had some employment in that
period and who have been employed 45 or more days within the
period of 24 months, immediately preceding the eligibility date for
the election," id. at 267, provided they "have not been terminated for
cause or quit voluntarily prior to the completion of the last job for
which they were employed," Daniel, 167 NLRB at 1081.
Generally speaking, the Steiny/Daniel "formula serves as an easily
ascertainable, short-hand, and predictable method of enabling the
Board expeditiously to determine eligibility by adopting a period of
time which will likely insure eligibility to the greatest possible num-
ber of employees having a direct and substantial interest in the choice
of representatives." Steiny, 308 NLRB at 1325-26 (internal quotation
marks omitted). Thus, for example, application of the formula will
result in the inclusion of those employees who have been laid off in
a reduction of force at the completion of a job but who nonetheless
expect to return to employment when work again becomes available.
By its express purposes, the formula "simply enfranchises employees
who, although working on an intermittent basis, have sufficient inter-
est in the employers’ terms and conditions of employment to warrant
being eligible to vote and included in the unit." Id. at 1328; see NLRB
v. Hondo Drilling Co., 428 F.2d 943, 945-46 (5th Cir. 1970) (reject-
ing challenge to similar eligibility formula calculated to enfranchise
TRADESOURCE, INC. v. NLRB 9
former "roughneck" employees in oil drilling industry who, although
not currently employed by the employer, had a legitimate continuing
interest in the terms and conditions of employment in the bargaining
unit).
B.
Special considerations have also been recognized in the context of
determining the eligibility of individual voters within a bargaining
unit who have sought and obtained employment in their capacity as
union organizers. The Board still applies the "community of interest"
test, but takes into consideration an employee’s underlying motives to
ensure that the employee is not, in reality, one who has sought and
obtained employment on a temporary basis only to achieve the goal
of unionizing the workplace. See Dee Knitting Mills, Inc., 214 NLRB
1041, 1041 (1974) (noting that while "an employee does not lose his
status because he is also paid to organize," he may lose his eligibility
to vote if "the employment itself was solely to organize, so that the
employment is really only temporary, whether the employer knows it
or not"). The exclusion rests upon the logical premise that such a
"‘temporary’ employee [should] not [be] permitted to vote in a Board-
conducted election because he or she does not have any longtime
community of interest with the regular employees." Anthony Forest
Prods. Co., 231 NLRB 976, 977 (1977); see also Multimatic Prods.
Inc., 288 NLRB 1279, 1316 (1988).
Under current Board precedent, paid union organizers have been
excluded from voting "either as ‘temporary employees, or because
their interests sufficiently differ from those of their coworkers." Sun-
land Constr. Co., 309 NLRB 1224, 1229 (1992) (footnote omitted).
If the evidence indicates that the "employment is solely for the pur-
pose of union organizing," the employment is in reality "temporary in
nature, [and] the individual so employed should not be included in the
bargaining unit even though he or she otherwise enjoys the protection
afforded employees by the Act." 299 Lincoln Street, Inc., 292 NLRB
172, 180 (1988) (excluding an employee from the bargaining unit,
and refusing to count his authorization card toward the union’s major-
ity status, because the employment was found to be temporary; the
employee’s "only reason for securing employment . . . was to orga-
nize for the Union from within the work force" and the employment
10 TRADESOURCE, INC. v. NLRB
was "designed to end on the completion of [the] union assignment.");
cf. NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 97 (1995) (not-
ing that, while paid union organizers are employees protected by the
Act, the Board has held that they "may not share a sufficient ‘commu-
nity of interest’ with other employees (as to wages, hours, and work-
ing conditions) to warrant inclusion in the same bargaining unit").
III.
With these precedents in mind, we turn to TradeSource’s chal-
lenges to the ballots cast by Cassie, McKenzie, and Rourke. Trade-
Source does not contest the general scope of the bargaining unit or
that the Union employees met the Steiny/Daniel eligibility criteria
adopted to define that unit. Nor does TradeSource dispute that the
Union employees "work[ed] side-by-side with other employees, rec-
eive[d] commensurate wages, and share[d] identical working condi-
tions." Rosslyn, 713 F.2d at 63. Rather, TradeSource asserts that the
ballots cast by Cassie, McKenzie, and Rourke should be disqualified
because the men sought employment with TradeSource for the sole
purpose of unionizing the plumbers. As such, TradeSource contends,
the men should be regarded as temporary employees who lack the
requisite community of interest with TradeSource’s other employees
which would entitle them to cast a vote on the issue of unionization.
See Sunland, 309 NLRB at 1229; Lincoln, 292 NLRB at 180.
The hearing officer rejected TradeSource’s challenges to the bal-
lots, finding that the men were not temporary employees and did not
lack a community of interest with the other unit employees so as to
render them ineligible to vote in the election. First, the hearing officer
concluded that the employees met the Steiny/Daniel criteria and
should not otherwise be considered temporary because they were
never told that their employment would terminate on any particular
date or upon completion of a finite work project. Second, the hearing
officer opined that the temporary employment standard of Lin-
coln/Sunland only applied to paid union organizers, not voluntary
union organizers. And, finally, the hearing officer found that these
employees were out of work when they applied to TradeSource for
employment and concluded that, because there was insufficient evi-
dence that they sought employment with TradeSource solely to orga-
TRADESOURCE, INC. v. NLRB 11
nize the employer, they should not be considered temporary
employees under the Lincoln/Sunland line of cases.
Although offering no specific indication as to how it would apply
its precedents in this area, the Board adopted the findings and recom-
mendations of the hearing officer, noting that it found no merit to the
contention that Cassie, McKenzie, and Rourke were ineligible to vote
because they served as unpaid union organizers:
The parties stipulated that these employees met the eligibil-
ity standard set forth in [Steiny/Daniel]. In addition, as
found by the hearing officer, the record does not establish
that these employees either were terminated for cause or had
quit voluntarily prior to the completion of the last job for
which they were employed. Thus, the Employer has not met
its burden of showing that these were temporary employees
ineligible to vote in the election.
J.A. 79. n.2 (citations omitted).
The Board is vested with wide discretion to resolve ballot chal-
lenges in a representation election. See Friendly, 705 F.2d at 580 (cit-
ing NLRB v. A.J. Tower Co., 329 U.S. 324 (1946)). Thus, our review
is restricted to an analysis of whether the Board has abused this dis-
cretion in rejecting the ballot challenges and certifying the election.
Id.; see also NLRB v. Boston Beef Co., 652 F.2d 223, 226 (1st Cir.
1981). In doing so, we must uphold findings and conclusions of the
Board if they "are based on substantial evidence and the Board’s con-
sistent precedents." Rosslyn, 713 F.2d at 64; see also Elizabethtown
Gas Co. v. NLRB, 212 F.3d 257, 262 (4th Cir. 2000); NLRB v. Coca-
Cola Bottling Co., 132 F.3d 1001, 1004 (4th Cir. 1997). In other
words, our review is restricted to a determination of whether the
Board abused its discretion or otherwise acted in derogation of its
applicable precedents in concluding that these voluntary union orga-
nizers nevertheless shared a sufficient community of interest with the
other plumbers in the bargaining unit so as to be properly included as
eligible voters in the union election.
A.
We consider first the Board’s assertion that the "community of
interest" test as applied to union organizers in Lincoln and Sunland
12 TRADESOURCE, INC. v. NLRB
does not apply to construction industry employees who are found eli-
gible to vote under the Steiny/Daniel criteria, as well as the related
assertion that TradeSource should be prohibited from arguing that the
men were ineligible to vote under the Lincoln/Sunland inquiry
because it earlier stipulated to the application of the Steiny/Daniel
criteria for voter eligibility and that the three challenged voters met
the criteria.
In Steiny/Daniel, the Board set forth an eligibility formula designed
to enfranchise former employees who have a reasonable expectation
of future employment with the employer, and therefore a community
of interest with the regular employees, but who happen not to be
employed on the eligibility date because of the temporary nature of
construction work. See Daniel, 133 NLRB at 266-67; Steiny, 308
NLRB at 1324-1326. The formula was obviously not intended to
automatically enfranchise an employee who does not in actuality
share a community of interest with other employees simply because
he meets the minimum eligibility requirements. Indeed, a contrary
conclusion would allow a union to pack an employer with employees
whose "only reason for securing employment [is] to organize for the
Union from within the work force," the precise result sought to be
prevented by the Board’s recognition that employees with such a
motive should be disqualified from voting because they in fact lack
the requisite community of interest with the other employees. Lincoln,
292 NLRB at 180. Unions would be able to send members to work
for a non-unionized construction employer, even pulling them off
union jobs with the express direction that they work for the non-union
employer a minimum of 30 days and up to the expected lay-off, for
the sole purpose of gaining eligibility to vote under Steiny/Daniel and,
thereby, potentially force the employer’s regular employees to accept
the Union as their representative. Having reviewed the applicable
Board precedents, we are satisfied that Steiny/Daniel and Lin-
coln/Sunland speak to quite different concerns and that the proffered
application of them is not a reasonable one. Accordingly, we decline
to enforce the Board’s order on the overly-simplistic basis that con-
struction employees who are qualified to vote in a union election
because they meet the Steiny/Daniel formula for eligibility cannot be
otherwise viewed as temporary employees who lack the requisite
community of interest with the regular employees under the Lin-
coln/Sunland inquiry.
TRADESOURCE, INC. v. NLRB 13
B.
We likewise decline to enforce the Board’s decision on the prof-
fered basis that the Lincoln/Sunland line of cases is only applicable
to union organizers who have sought employment for the sole purpose
of unionizing the workplace and who have received pay from a union
for their organizing efforts. We do not read the Board’s precedents so
narrowly, nor the distinction as being a defensible one.
In Lincoln, the Board disqualified a paid union organizer from vot-
ing, not because he received pay for his efforts, but because "[h]is
only reason for securing employment with [the employer] was to
organize for the Union from within the work force" and because his
employment "was designed to end on the completion of his union
assignment." Lincoln, 292 NLRB at 180. In Sunland, the Board noted
that:
In determining whether statutory "employees" are eligible to
vote, the Board applies a traditional "community of interest"
test. Under this test, paid union organizers frequently are
excluded from voting, either as "temporary" employees, or
because their interests sufficiently differ from those of their
coworkers. In short, employee status is not synonymous
with voter eligibility. Accordingly, any concern over unions
packing bargaining units with their paid functionaries is, in
our experience and judgment, misplaced.
Sunland, 309 NLRB at 1229 (citations and footnotes omitted). Thus,
the Board noted that paid union organizers had been excluded from
voting in the past because they were viewed as "temporary" employ-
ees or employees whose "interests sufficiently differ[ed] from those
of their coworkers," id., not simply because they had been "paid" by
a union to organize.
In sum, Lincoln and Sunland dealt with paid union organizers, but
offer no indication that the Board rested the determination of whether
a union organizer shares a community of interest with the other
employees solely upon whether the union organizer receives a pay-
check for his organizing efforts. And, in Dee Knitting, 214 NLRB at
1041, the Board rejected a challenge to the vote of a union organizer
14 TRADESOURCE, INC. v. NLRB
because there was no evidence that she took the job solely to orga-
nize, even though she was paid to organize. The fact that a union
organizer is voluntary should not enfranchise the voter any more than
the fact that a union organizer is paid should automatically disenfran-
chise the voter.
Nor do we view the distinction as a defensible one. Pay is not the
sole motivator for human action. Indeed, in this situation, the union
organizers received permission to work at TradeSource if they agreed
to act as voluntary organizers, allowing them to garner a paycheck for
themselves and continue to advance on the Union’s job referral list
for a higher-paying job should one become available. Consequently,
it could just as easily be said that the union organizers’ "pay" was the
permission to receive at least some income from a nonunion contrac-
tor, without penalty by the Union, while awaiting either an assign-
ment to seek and obtain employment at yet another unorganized
employer or the receipt of the preferred union-referred employment
when it became available.
C.
Finally, although we decline to enforce the Board’s order on the
bases proffered, we are nonetheless constrained to do so on the basis
that TradeSource failed to meet its burden of showing that the sole
motive of the three challenged voters was in fact to gain voter eligibil-
ity and organize TradeSource from within.
TradeSource contends that each challenged voter began employ-
ment with TradeSource with the sole intent to organize the employer
by obtaining voter eligibility and that they intended to quit once orga-
nizing was completed. While conceding that there is no direct evi-
dence to this effect, TradeSource argues that the conclusion is evident
from the fact that the employees stopped working as soon as they had
achieved eligibility and did not return when recalled by TradeSource
after their lay-off.
While we agree that the evidence may be susceptible to a contrary
conclusion, substantial evidence on the whole record also supports the
conclusion that, although these employees were most assuredly moti-
vated to organize the workplace, they did not seek and obtain employ-
TRADESOURCE, INC. v. NLRB 15
ment with TradeSource with the sole motive to do so. When the
organizing campaign at TradeSource began, the challenged employ-
ees were unemployed. They were hired, and legitimately gained eligi-
bility to vote under the Steiny/Daniel criteria, but were ultimately
laid-off from employment by TradeSource. By the time TradeSource
recalled them, each had obtained alternative employment. There is no
evidence that these employees resigned their employment with Trade-
Source or were otherwise instrumental in terminating their employ-
ment relationship with TradeSource. There is no evidence that the
men were out of work and simply refused to return when recalled.
There is no evidence that, had they not been laid off by TradeSource,
they intended to or would have left TradeSource voluntarily as soon
as the election was over. Nor is there any evidence that they would
have refused to return to TradeSource had the election been unsuc-
cessful. And, finally, there is no evidence that these employees had
previously engaged in a practice of moving from one nonunion con-
tractor to another, working only long enough to gain eligibility to vote
and swing the election in the Union’s favor, and then resigning or
refusing to return upon a recall.
In summary, we are satisfied that there was substantial evidence on
the whole record to support the conclusion that the challenged voters
did not accept employment with TradeSource with the sole motive of
organizing the workplace and gaining voter eligibility and, therefore,
that the Board’s order must be enforced.
IV.
For the foregoing reasons, we deny TradeSource’s petition for
review and grant the Board’s cross-application for enforcement.
PETITION FOR REVIEW DENIED, AND CROSS-
APPLICATION FOR ENFORCEMENT GRANTED