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UNPUBLISHED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granted by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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