ADB Utility Contractors, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 10, 2005

14-CA-027386 (N.L.R.B. May. 10, 2005)

JD–35–05
St. Louis, MO

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

ADB UTILITY CONTRACTORS, INC.

Cases 14-CA-27386,
and 14-CA-27570,
14-CA-27677

LOCAL 2, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO

Paula B. Givens, Esq., Counsel for the
General Counsel.

Lawrence P. Kaplan, Esq. and Joshua M.
Avigad, Esq. (Kaplan Associates, LLC),
of St. Louis, MO, for Respondent.

Christopher N. Grant, Esq. (Schuchat, Cook & Werner),
of St. Louis, MO, for the Charging Party.

DECISION

Findings of Fact and Conclusions of Law

Benjamin Schlesinger, Administrative Law Judge. This is a Gissel1 case involving,
among other alleged unfair labor practices, the discharges of 13 persons, many of whom were
leaders in the attempts to organize on behalf of Local 2, International Brotherhood of Electrical
Workers, AFL-CIO (Union), the employees of Respondent ADB Utility Contractors, Inc.
Respondent denies that it violated the Act in any manner and particularly contends that of the
13 persons discharged, 8 were supervisors within the meaning of NLRB v. Kentucky River
Community Care, 532 U.S. 706 (2001).2

Respondent, a Missouri corporation, has its principal office and a place of business in St.
Louis, Missouri, and other facilities located in Jacksonville, Florida, and Kansas City, Missouri,
where it has been engaged in aerial and underground installation and maintenance of cable and
fiber optics. During the 12-month period ending November 30, 2003, Respondent purchased
and received at its St. Louis facility goods valued in excess of $50,000 directly from points
1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
2 The relevant docket entries are as follows: The Union filed its unfair labor practice charge in Case
14-CA-27386 on April 16, 2003, and amended it on June 19, 2003. It filed its charge in Cases 14-CA-
27570 and 14-CA-27677 on September 16, 2003, and December 2, 2003, respectively. Complaints
issued on June 26, October 9, and December 9, 2003; and hearings were held in St. Louis, Missouri, on
16 days between August 4, 2003, and February 5, 2004.

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outside the State of Missouri. I conclude, as Respondent admits, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also conclude, as
Respondent also admits, that the Union has been a labor organization within the meaning of
Section 2(5) of the Act.

The Union unsuccessfully attempted to organize Respondent in 2001 and engaged in a
prevailing wage protest against Respondent at its Parkton subdivision job commencing in
August 2002. It ceased picketing in November 2002, but its Business Agent, John Atchison,
continued to speak to Respondent’s employees at Parkton and nearby jobsites until about
Christmas 2002; and the Union referred several out-of-work employees to Respondent,
including alleged discriminatees Ed Schreit and Matt Bridges, with the object of organizing
Respondent from the inside. On March 29, 2003,3 the Union held its first meeting with 11 of
Respondent’s employees; and at the end of that meeting, the employees agreed to talk to their
fellow employees, with the hopes of obtaining greater interest, and to meet again on April 7,
when 30 attended. Schreit, Bridges, Jeremy Farris, and Adam Williams (all of them were
subsequently fired) sat at the head table at this meeting, helped employees to complete
authorization cards, collected authorization cards (all of the employees signed), took notes, and
answered employees’ questions. The Union gave employees American flag pins at this meeting
to see if Respondent would make them take them off, with the plan to later wear union pins.
Once again, the employees agreed to talk to other employees in an effort to gain even more
support, and to meet again on April 15.

In the morning of the day that the next Union meeting was to be held, Chris Eirvin,
Respondent’s general manager, held a meeting of all his employees and delivered the following
speech, which was, unknown to him, tape-recorded:

Good morning guys. You have to bear with me, gotta little bit of a head
cold. It must sound like I’m havin’ a hard go here. I’m gonna keep this real short
and sweet. I’m gettin pretty good at this one - this is my fifth attempt at the same
subject. There’s been some talk about some of the folks in here have been
wantin’ go union - either Local 1 or Local 2. I wanna say a couple of comments
on that - and make sure everybody’s on the same page with us. First off, I want
everybody in here to understand that this place is not gonna go union and I’m
gonna tell you why.

First off is, our biggest customer, that’s involved with the electric here in
Missouri, is not gonna tolerate them being put over a barrel again on having this
issue of crossing picket lines because a union will respect a picket and will not
cross the line. They did this once with Sachs Electric, and they got theirselves in
a hell of a jam, and since then, we’ve had the damn thing ever since and they
won’t get in that same position again.

Item number 2 - if we go union, the union agreements with Ameren UE
state that, and I’m sure that for those that’ve been in a couple of meetings, uh
that the union have had, the union hasn’t brought this up. The agreements that
Ameren UE had with the union is that if the work is to be subcontracted out, and
the contractor is a union contractor, according to the contract, guess who gets
first shot at the work? Anybody wanna take a stab at this? The Ameren UE union
employee. Does anybody in here believe that they would bypass the union
3 All dates are in 2003, unless otherwise indicated.

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gentleman who paid his dues for 20 years, and hand it to a union sub-contractor
first? Does anybody in here believe that? I’m here to tell you, it ain’t gonna
happen. They’re not gonna put theirself out there and get the shit sued out of
them by, by bypassing over union people to give you guys the work. Flat out if
this shop votes union, the Ameren UE work goes away. We don’t have a choice
in the matter - it’s that simple really gentlemen.

But I can tell you because some of you all aren’t up for this, when it
comes to vote, I wanna share some wisdom [two words inaudible] you feel a little
bit at ease. We’re not gonna become union. Those of us that don’t want to
[be]come union are not gonna be out of a job - alright. I’m not gonna get creative
and let the cat out of the bag, but the bottom line is, legislation is passed to keep
the unions from ruining guys like us. We’re gonna keep going - if this union is
voted in - yes we will shut the doors. We’ll be, we’ll be done - no - we’re gonna
keep going - we’re not gonna have some internal big friction thing going on
between the union and non-union guys. I don’t want nobody harassing anybody.
I’m not up for that - I’ve got a lot of good guys in here that for some reason - you
know what - hell all of us went to church once in a while - this is sorta the same
kinda deal . . . you give me a lot of shit for so long I start buying it . . . reality is
gentlemen, I don’t bullshit anybody, but I don’t want each other and you guys
getting into it - givin’ each other a hard time - that ain’t what it’s about. This place
is not gonna go union. I bullshit none of you. We’re not gonna single people out
here that are sized up to the program, but it’s not gonna be voted through either.
I want everybody in here to know, we are not even gonna recognize any union
attempts at all.

So for those that think they got this effort figured out, we’re not even
gonna recognize it. Have the union attorneys figure that one out. For those of you
guys that are just so adamant about being union - that’s your right, absolutely,
I’ve got a few arguments for you guys - so don’t no animosity towards anybody.
There’s two companies that do this work - take you and your abilities over to
Sachs or Perkins. They’re both looking for qualified individuals, especially on a
directional drilling rig. These guys are union shops. They’ll give you a real good
taste of what it’s all about on the other side. Uh, one more thing - Mike - there ya
are, I need this documented that we’re having this meeting as soon as we’re
done here give me an e-mail as well.

One more thing gentlemen, uh, I want everybody to understand, that
according to the ADB employee handbook, there’s a protocol for the ADB
uniform if you will, with the ADB shirts. If anybody decides to pull any shit with
any pin or anything else, I’m gonna help you understand what that handbook
stands for, okay? So feel free to do what you need to with that.

Bottom line is we’re not gonna go union, guys. The first quarter kicked us
right in the ass - I really don’t look forward to dedicating a lot of my time to this
cause - I look forward to making the next quarter back on track. It’s gonna be a
good year for all of us, you know, regardless. Any questions? (Exhale) High
winds today gentlemen, be careful, have a good day. [Emphasis supplied.]

That speech was important to this proceeding in a variety of ways. First, it
unquestionably demonstrates Respondent’s animus regarding the union activities of its
employees. Second, Eirvin’s testimonial description of his speech, before being confronted with

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the fact that the speech was recorded, demonstrates that he has no regard for the truth.
Although much will be written below about his fabrications—and I add to this that he was
frequently evasive and argumentative—I found particularly outrageous his denial of any
knowledge that the employees had attended two Union meetings, particularly when his speech
referred to “a couple of meetings . . .that the union . . . had.” His attempt to explain that his
speech resulted from “[l]ittle group gatherings” and the facts that some employees were talking
about the Union and that a few employees had conducted “little meetings” at the Parkton
subdivision was utterly improbable. There is a sense of urgency in Eirvin’s speech. It was not
caused by something that occurred in November, five months before. There was something
recent that caused him to spew forth his threats of closure; and his denial of knowledge of the
Union meetings is particularly belied by his own acknowledgement of the “couple of meetings,”
two, being exactly the number of Union meetings held, not picketing at Parkton. His reference to
the employees’ wearing of pins was particularly telling. He had seen the American Flag pins, but
that is not what he was referring to. He was referring to the Union pins that were to follow—“If
anybody decides to pull any shit with any pin”—which he could have known about only if
someone told him what had transpired at the April 8 Union meeting. Furthermore, his threats
came at a particularly appropriate time, the morning of the Union’s next intended meeting.
Finally, the fact that Respondent fired the 4 employees who sat at the head table during the
April 8 meeting and 9 of the 11 employees who attended the first meeting on March 29 was no
mere coincidence. Eirvin knew exactly who headed the Union drive, and his testimony about his
lack of knowledge of the Union meetings was patently false.

In addition, Eirvin, who was called to testify by the Counsel for the General Counsel as
her first witness, stated that he had almost no knowledge of any Union adherents, despite the
fact that Respondent was presented with a demand for recognition on April 16 and a list of
Union supporters on April 23 and despite the fact that Williams read the names on the list aloud
in the hallway on April 23, well within the range of Eirvin’s hearing. Both Project Managers Ernie
Nanney and Rich Robinson denied seeing the list, despite the fact that copies of the list were
left in conspicuous places. Nanney and Robinson were aware of Eirvin’s feelings about the
Union, yet neither, nor Eirvin, according to their testimony, was at all interested in the names of
the employees who were organizing, a threat to Respondent’s existence. Even without the fact
that so many Union activists and adherents were fired or transferred, I find that improbable and
do not believe any of them.

Rather, many of Respondent’s actions against the organizers were purposely fabricated
in order to rid Respondent of the Union threat. The prime example involved Jason Lohman, who
was ultimately discharged as a result of alleged complaints by Ameren UE, a St. Louis area
electric company that provides Respondent with approximately 40 percent of its business, and
various homeowners. The various customers, all of whom testified that they did not make the
complaints that would have caused Respondent to investigate, and take copious photographs
of, Lohman’s malfeasance, as well as the testimony of Ray Pour, Ameren UE’s construction
supervisor, who denied having complained of Lohman’s work, persuade me that Respondent
was out to get Lohman. There is nothing that Lohman did that would so infuriate Respondent,
other than his union activities, knowledge of which Respondent’s representatives refused to
admit. They were not telling the truth when they testified that they had no knowledge. They were
similarly not telling the truth when they refused to admit seeing any of the Union pins worn by
their employees. Strangely, they admitted seeing their employees wearing smaller American
Flag pins. But anything to do with the Union, which Eirvin so abhorred that he threatened that he
would close Respondent rather than deal with the Union, was somehow purposefully ignored
and paid no attention to, which is utterly improbable, because Respondent fired or transferred
only those who attempted to support the Union.

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Perhaps Eirvin’s most outrageous misstatement of fact occurred on the fourth day of the
hearing. The Counsel for the General Counsel had subpoenaed Pour to testify that day. At the
beginning of that hearing, Respondent’s counsel represented that Eirvin had told him the day
before that he wished to correct the testimony he gave on the first day of the hearing that Pour’s
complaint about employee Rodney Hanephin’s putting a 90-degree bend on the wrong side of
an electrical pole, not directly under the transformer, caused Eirvin to terminate Hanephin.
Instead, Eirvin wanted to amend that testimony to make clear that Respondent had found the
mistake itself. Counsel’s offer to enter into a stipulation was rejected by the Counsel for the
General Counsel, and Eirvin was then recalled to testify about his new recollection.

Witnesses can make mistakes, and I could certainly excuse Eirvin’s error; but his new
testimony resulted from the fact that he learned from a conversation that he had with Pour
earlier that morning that Pour was going to testify that day. He must have suspected that Pour
was being called to testify about something that was unfavorable to Respondent’s cause. So
Eirvin attempted to conceal that he had spoken to Pour that morning and denied under oath that
he had. Pour, who had no reason to fabricate, testified that Eirvin had indeed called him on his
Nextel radio; and they had spoken, and Pour told Eirvin that he was going to testify that
morning.

Not only did Eirvin blatantly lie about this fact: his memorandum supporting the
discharge of Hanephin, containing the lie about Pour calling him to inform of Hanephin’s error
and dated before Hanephin’s discharge—“on 4/24 Ray Pour called me complaining of a 90%
bend” put on the wrong side of a utility pole—was a document that Eirvin fabricated,
undoubtedly for this proceeding. Similarly, Eirvin’s testimony on the first day of the hearing—that
it was Pour who called, that it was Pour who was irate, that Pour “was pissed because they
[Ameren UE] had sent a crew out there and they couldn’t energize it because it was on the
wrong side of the pole,” that the photographs that Respondent took had to be dated correctly
(April 24) and, as a result, that Pour had called him on April 23—all of this was false, a carefully
fabricated, fictitious scenario to support the sinful, treasonous conduct of Hanephin and justify
Respondent’s reaction (discharge) to it. Eirvin’s testimony was no mistake or inadvertent error. It
was deliberate, calculated lying, which Robinson joined in by corroborating Eirvin’s initial
fabricated testimony that Respondent was notified of Hanephin’s alleged mistake by Pour

Even after Eirvin had supposedly corrected the record, he lied. He placed the date of his
memo as a week after Hanephin’s discharge, which could not possibly be accurate, because
the memo states: “it’s a very serious issue and I believe we will have to release him.” The
difficulty with that is that Hanephin had already been discharged. Eirvin also testified that
Nanney first told Pour of the alleged mistake, while Pour testified he first learned of Hanephin’s
alleged mistake from Eirvin while at Respondent’s facility. In either event, Eirvin could not have
had a telephone conversation with Pour remotely similar to the one about which he originally
testified. Therefore, the much-testified-about telephone conversation never happened. Eirvin
further compounded his lies by claiming that, when he spoke to Pour on the telephone about
Hanephin’s alleged mistake, Pour said he had already spoken to Nanney. This testimony is also
false. Pour denied speaking to anyone at Respondent about this issue before Eirvin showed him
the pictures at Respondent’s facility, and he specifically denied speaking to Nanney about the
matter. Most importantly, Nanney, contrary to Eirvin, denied speaking to Pour about Hanephin’s
mistake and denied telling Eirvin of such a discussion. The result is that I do not credit Eirvin at
all, about anything, unless corroborated by an impartial, credible witness. Robinson is complicit
in attempting to mislead me, and I do not trust him either. As to both Robinson and Nanney, I
found them beholden to Eirvin, who appeared to dominate their testimony; and I trust neither of
them.

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Turning to the alleged unfair labor practices, I conclude that Eirvin’s April 15 speech
contains numerous violations of Section 8(a)(1). Eirvin created an impression among its
employees that their union activities were under surveillance by telling them of the two Union
meetings that were held. Electro-Voice, Inc., 320 NLRB 1094, 1094–1095 (1996). He
threatened the employees with termination if they selected the Union as their bargaining
representative by telling them that if they voted in the Union, the Ameren UE work, which
constituted approximately 40 percent of Respondent’s business, would disappear. There was no
factual basis for that comment. NLRB v. Gissel Packing Co., 395 U.S. at 618–620. By
repeatedly telling the employees that Respondent was not going to be a union facility, Eirvin
threatened the employees that it would be futile to select the Union. Eirvin also unlawfully
threatened employees with the closure of its facility if employees selected the Union as their
bargaining representative. He unlawfully solicited employees who supported the Union to quit
and to obtain employment with two Union facilities, Sachs and Perkins. By April 15, some
employees were already wearing American flag pins, with the eye toward wearing Union pins
later. Eirvin’s speech was directed toward banning the wearing of pins, particularly in light of the
ongoing union organization, and impliedly threatened the employees with discipline for wearing
pins demonstrating support for the Union. Notwithstanding his reliance on Respondent’s
handbook, there is nothing in the handbook regarding pins. Accordingly, his threat served no
legitimate business concern and was made solely to hamper union organization. Meijer, Inc.,
318 NLRB 50 (1995).

On April 18, Respondent mailed and gave the following letter and agenda (emphasis in
the original) to the employees with their checks; and Robinson read both documents to the
employees who were engaged in work for Ameren UE:

To the Employees and Families of ADB,

IBEW Local 2 is once again attempting to unionize the company. I’m
writing this letter to clarify the company position on the union issue for all of us.

As most of you know, ADB went through some tough times over the last
two years because of the problems in the telecom and broadband industries. We
have successfully survived by implementing many cost saving measures and
securing other customers while keeping us employed thanks to our status as
a non-union company.

Many of our utility customers employ the services of ADB only because
we are a non-union company. They firmly believe we can do the job more
efficiently and economically than their own union workers because of our flexible
multi-functional crews. We will lose our edge in a very competitive market and
our ability to generate new customers by unionizing. The bottom line is many
or all of us will very likely be looking for work elsewhere due to a
decreased volume of work by eliminating our competitive edge in electing
to unionize the company.

We all are painfully aware that the current job market is poor at best. I find
it amazing that any of our employees would want to take a chance on
jeopardizing the security of their well paying jobs, superior insurance, and a
matching retirement plan by voting to unionize. The employees of our FEW union
competitors have been sitting in union halls across the country for sometime
without weekly paychecks. The truth is that IBEW Local 2 is interested in
organizing ADB in order to make ADB less competitive with those companies

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already represented by the IBEW. In other words, ADB would secure less work,
the other union companies would keep a little more, AND THE REAL REWARD
WOULD GO TO OUR NON UNION COMPETITION. Local 2 is interested in
large numbers of members and currently represents employees of very large
companies. ADB’s St. Louis – Jacksonville – Kansas City employee base is
relatively small, do you think the IBEW is interested in your welfare or will you
become just another number? The union is trying to protect their large
membership by taking the non-union competitive edge away from ADB.

ADB has been successful because of our ability to work flexibly with small
multi-functional crews in an extremely competitive market. Our competitors are
non-union, and we must remain non-union in order to compete equally with
them. Many of our competitors have not survived in this economy, and we must
do everything we can to keep this company healthy. Putting a union in our
company may kill it.

ADB will fight all attempts to bring a union into our company even if it
takes years. The cable, telephone and many other industries we serve have
proven many times that unions don’t fit their construction needs.

LOCAL 2 COULD DESTROY ADB AND OUR JOBS!!
HELP US KEEP ADB UNION FREE

Sincerely,

(sgd.) Chris Eirvin, General Manager

AGENDA

ADB will never unionize!
-you can vote
-you can strike
-we will replace
Bottom Line: we will NEVER recognize a UNION at ADB

Industry is non union
-our markets are non union
-look at our competition . . . nationwide it is non union
-these individuals will ruin it for 200 people and their family livelihoods

Rough Economy and Job Market
-I project to spend $100K+ to fight
-This is part of your bonus money
-ADB pays above industry standards
-The Best insurance and retirement plans + year end bonus
-How many non rain days can you afford to miss because of a picket?
-How many of your friends are out of work?

Union does nothing . . . and can’t make promises happen
-How many people are sitting at the hall
-12 months vs 15 hours per week....

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-Will you be a number or part of a team and a company to be proud of
-Talk to people who have been union . . . there are many at ADB
—if your [sic] convinced you want UNION I will setup an interview at Gerstner
Bottom Line: Leave on your own terms you will lose and so will innocent others

Data
-42% of votes win . . . ours won’t with regional offices
-16% get a contract . . .84% fail
-7% actually bargain for better packages than existing . . . 93% don’t
——not good percentages
-Are you willing to risk this . . . . how about your family?
-If you strike will you be replaced or have a job?

Lastly
ADB will subcontract more work
ADB will fill positions for strikers
ADB will never recognize a union
ADB and Their Families will prosper
Do you want to be a part of the best utility company?

The complaint alleges that these two documents contain a multitude of unfair labor
practices in violation of Section 8(a)(1) of the Act. I agree. They threatened the employees that
they would lose their jobs by selecting the Union as their bargaining representative, because
they owed their employment to the fact that Respondent was nonunion. Somehow, but not
explained by objective fact, if that status should change, Respondent would lose its competitive
edge, and that would result in the loss of employment. Indeed, putting a union in Respondent
might kill it, according to Eirvin, resulting in loss of not only employment but also insurance and
Respondent’s retirement plan and Respondent’s “destruction.” Those are unlawful threats.
NLRB v. Gissel Packing Co. Inc., 395 U.S. at 618–620.

By telling employees that it would fight all attempts to bring in a union, even if it took
years, and that it would never unionize and would never recognize a union, Respondent
unlawfully threatened its employees that it would be futile for them to select the Union as their
bargaining representative. Respondent unlawfully invited its employees to resign their
employment and promised to arrange for an appointment at a union company. It unlawfully
threatened to “subcontract more work” if its employees selected the Union as their bargaining
representative. It unlawfully threatened the employees with the loss or reduction of their year-
end bonus money, because it would spend that money on fighting the Union. Yet another unfair
labor practice related to the letter and agenda occurred when Project Manager Kevin Sellers
read them to his employees, adding that, no matter what the employees might do, Respondent
would never go union. That is similarly an unlawful threat of futility.

Finally, on April 23, 2003, the day that many employees distributed lists of the union
supporters at Respondent’s facility, Eirvin stopped Lohman in the hallway and asked if his name
was on that list. Lohman said that it was, and Eirvin said that that was all he needed to know. In
the context of the many other unfair labor practices that Respondent was committing, including
the threats of closure and the advice that Union supporters should move elsewhere, and the fact
that the question was asked by Respondent’s highest ranking official, this constitutes illegal,
coercive interrogation. Medicare Associates, Inc., 330 NLRB 935, 939–940 (2000); Rossmore
House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985).

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The remainder of the complaint alleges that Respondent violated Section 8(a)(3) by
discharging or unlawfully transferring employees, but Respondent contends that the following
“crew leaders” are not employees but are supervisors within the meaning of Section 2(11) of the
Act: Williams, Bridges, Farris, Lohman, Hanephin, Nathan Schaffer, John Shipp, and Matt
Sutton. Section 2(11) provides:

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

In Kentucky River, 532 U.S. 706 (2001), the Supreme Court found erroneous the
Board’s rejection of a nursing home’s proof of supervisory status of nurses with respect to
directing patient care. It stated, 532 U.S. at 712–713, that Section 2(11) of the Act sets forth a
three-part test for determining supervisory status:

Employees are statutory supervisors if (1) they hold the authority to engage in
any 1 of the 12 listed supervisory functions, (2) their “exercise of such authority is
not of a merely routine or clerical nature, but requires the use of independent
judgment,” and (3) their authority is held “in the interest of the employer.”

Where the Board went astray, held the Court, was the Board’s interpretation of the
second part of the test, “that employees do not use ‘independent judgment’ when they exercise
‘ordinary professional or technical judgment in directing less-skilled employees to deliver
services in accordance with employer-specified standards.’” 532 U.S. at 713. The Court rejected
that interpretation, noting that, in analyzing the statutory term “independent judgment,” while the
Board was free to examine, within reason, the degree of discretion required for supervisory
status, and that that discretion “may be reduced below the statutory threshold by detailed orders
and regulations issued by the employer,” 513 U.S. at 713–714, the Board could not categorically
exclude without statutory basis certain kinds of judgments. The Board’s categorical exclusion
“turns on factors that have nothing to do with the degree of discretion an employee exercises,”
the Court held, 513 U.S. at 714, and reasoned that there was no supervisory judgment worth
exercising that does not rest on professional or technical skills or experience. Furthermore, the
Board’s attempt to limit “its categorical exclusion” to professional judgment applied “‘in directing
less-skilled employees to deliver services’” (532 U.S. at 715) failed because it was “directly
contrary to the text of the statute.” Id. Every supervisory function must require the use of
independent judgment before supervisory status will obtain; yet, the Board would limit
“independent judgment” to only 1 of the 12 listed functions: “responsibly to direct.” 513 U.S. at
715–716.

Although Respondent made much of its Kentucky River defense at the hearing, insisting
that various employees were supervisors under Kentucky River, it wrote very little in its brief.
Indeed, Respondent relies more on a traditional claim of supervisory status, as is shown by one
of the only two decisions it cites,4 and not a claim, which parenthetically is not urged by the
Continued
4 In Arlington Masonry Supply, 339 NLRB No. 99 (2003), the employee prioritized jobs, assigned
employees to work on specific trucks, decided what type of maintenance work needed to be done,
inspected all work, approved time off, and recommended suspension. He was held to be a supervisor. In
Sheet Metal Workers Local 101 (Comfort Conditioning Co.), 340 NLRB No. 149 (2003), although the

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General Counsel or the Union, that the crew leaders have such professional or technical
backgrounds or are so experienced that their decisions or their direction to less experienced
employees would not be supervisory. And thus Kentucky River is not particularly relevant to the
disposition of whether the crew leaders are supervisors within the meaning of the Act, at least
as of the moment of the issuance of this Decision.5

Kentucky River is helpful, however, in setting forth some guidelines to determine this
issue. First, Respondent, by claiming that certain employees are supervisors, bears the burden
of proving the challenged employees’ supervisory status. 532 U.S. at 711, approving
Masterform Tool Co., 327 NLRB 1071, 1071–1072 (1999). Second, the Board maintains the
reasonable discretion to resolve the question of the degree of judgment which alleged
supervisors exercise by focusing on the “clerical” or “routine” nature of the judgment. 532 U.S.
at 714.

The supervisory issue here concerns, except for Lohman and Sutton, crew leaders
among the laborers, machine operators, and locators who are engaged in underground work,
either boring through the ground with a boring machine or digging trenches in the ground with a
backhoe or similar equipment to insert pipes or conduits from one location to another and
pulling wire or cable through the pipes. That is accomplished by boring or drilling the conduit
underneath the ground, performed by the boring crew, typically comprised of an operator of a
boring machine, a locator for that operator, and perhaps a laborer, or by digging a trench and
laying the conduit into it, performed by the backhoe crew, comprised of the backhoe operator,
who is the crew leader, and a laborer, sometimes two. In a boring crew, the locator is the crew
leader. I do not credit Eirvin’s testimony that the operator would be the crew leader if he had
more experience. Robinson knew of no operator on a boring crew who was designated a crew
leader and testified, although the transcript is somewhat garbled, that on a boring crew, the
locators were always the crew leaders, not the operators.

The actual performance of the job begins each morning when the project manager gives
to the crew leader blueprints for or otherwise explains the jobs that are to be performed that
day. The blueprints are of neighborhoods or streets or townships and show basically which pole
or electric pad one is going from to which pole or pad the dig is going to. It indicates the address
of the dig, the locations of the poles and pads, and the materials that are needed to perform the
job. When the employees arrive at the job, they will see paint on the ground (locates), placed
there by an outside company, indicating the location of utilities (telephone, gas, electric) which
are to be avoided during the digging or drilling operation. The first thing that the crew does upon
arriving is to dig the locates. Everyone, the locator, the operator, and the laborer (if there is one)
finds a locate and digs, normally one foot holes, up to three feet deep, or at least the depth
Administrative Law Judge found that Jack Dresser was a supervisor, that was not the crux of that Section
8(b)(1)(B) case. The issue was whether he was “an employer representative” within the meaning of that
Section. The Board affirmed that he was not.
5 Almost two years ago, on July 25, 2003, the Board issued a “Notice and Invitation To File Briefs” in
three cases involving supervisors to consider issues raised by Kentucky River. Two of the three involve
nurses: Oakwood Healthcare, Inc., Case 7-RC-22414; Golden Crest Healthcare Center, Cases 18-RC-
16415–6; and the third, perhaps critical to the issue in this proceeding, involves leadmen at a
manufacturing plant, Croft Metals, Inc., Case 15-RC-8393. I have delayed the issuance of this Decision in
the hope that the Board would have disposed at an earlier date of these Kentucky River issues, which
may impact my resolution of Respondent’s contentions, particularly because so many of the alleged
discriminatees are alleged to be supervisors and a finding that four of them are supervisors would destroy
the Union’s claim of majority support for the purpose of its requested bargaining order. Due to personal
commitments, I can delay no longer.

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needed to find the utility. However, frequently, the locates are not accurate, and the hole must
be widened by two feet, until the utility is found.

When the crew completes the locates, if a boring crew, the crew sets up the boring
machine, which is a drill, and decides on the initial location of the bore. The boring machine
operator inserts a drill rod as much as three feet under the ground. At the end of the rod is a drill
head which contains a transmitter or beacon that sends a signal back to the locator box, held by
the locator. The operator steers the rod, adding rods as required, to its target, and being guided
by the locator, who stands in front of the boring machine with a locator box which shows the
depth of the boring head and its pitch. The locator reads the box and tells the operator by hand
signals or over a radio transmission to dive deeper or to change directions. The result is that the
operator and the locator work together in guiding the rods through the locate holes that they
have dug so they can miss the utilities. When the operator gets to the end of the bore or if he
runs out of rods, he will pitch the head up and it will pop the rod out of the ground. The head is
then removed and a puller is put on. Then the operator pulls the rods back one at a time and
pulls their conduit off of a reel at the same time down into the ground and all the way back to
where he started. At that point, he is done with that portion of the bore, and the crew will then
dig the tie-ins, bringing together or splicing two runs of conduit. If the operator is not through
with the bore, he will start a new bore at the end point and proceed, as above, until he reaches
a point where there will be a new tie-in or the end of the bore.

The work of the backhoe or open cut crews is not appreciably different from the work of
the boring crews, except that they use different equipment, such as a backhoe, and sometimes
a trencher, supplemented by digging by hand, to dig because the soil is too hard or rocky for the
boring crews to bore or there are too many utilities or a ditch which interfere with an
unobstructed underground path for the borer. Backhoes are also used to set hand holes in the
ground, install conduit in the ground, tie conduit already in the ground, place plastic bends into
the ground (at a 90 or 45 degree angle), and to dig near electrical pads. When the backhoe
crew leader arrives at a job, he first walks the job to make sure all the locates are marked, then
he unloads the backhoe, and then he and the laborer or, more rarely, laborers, dig locates by
hand. Because it is the job of the laborer to dig locates, he always carries a shovel and does not
need to be told to dig. When the backhoe operator begins his work with his machines, he cannot
see the ground, or at least much of it, where he is digging; and so the job of the laborer is to
watch the backhoe bucket to ensure it does not hit unmarked utilities (swamping). If the laborer
sees something in the hole, he directs the crew leader to stop, climbs in the hole, and digs with
a shovel until he either exposes the suspected utility or satisfies himself there is no utility there.
Similarly, when the crew leader feels something in the hole, he asks the laborer to check the
hole. If the crew is doing a tie-in, both the crew leader and laborer get the materials and get into
the hole to do the work; and they both will backfill the hole. When the drilling or digging reaches
the target destination, the cable or wire is then inserted into the opening of the conduit and
pulled back.

Most of these crew leaders agreed that they were responsible for production and for
getting the job done. In the instance of a drill operator, he cannot see. The crew leader, in that
instance, the locator, is the operator’s eyes, and the drill operator depends on the locator’s skills
to keep drilling and can go no faster than the locator can advise him. On the other hand, a
backhoe operator can see, but not all that much, and he is the one, with the assistance of the
laborer, who is watching for utilities, who ultimately determines how much he will produce. So, in
both instances, how much they get done is dependent on how good the crew leader is, which, of
course, is impacted by the type of ground they are digging or drilling through, how rocky or not,
how many utilities they encounter, and, initially, how many locates must be dug and the
accuracy of and the difficulty of digging the locates.

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But many of the work conditions of the crew were dictated not by any individual,
particularly the crew leader, but by the job. Thus, overtime was limited in part by Respondent’s
cap on the number of hours that could be worked on an Ameren UE job, 50, but equally
important by the consensual decision by all as to whether they wanted to continue to work.
Often, the progress on the job, that is, whether they could finish during the daylight, dictated
whether the employees would stay to finish. Similarly, lunch was a communal decision; and
some employees continued to work through lunch, even though they were not being paid. The
issue of rain was subject to some conflicting testimony. Williams testified that he made the
decisions that the inclement weather was sufficiently serious to call off work and that the rain
had let up sufficiently so that work could be resumed. Edgar Shreit (a crew leader whom
Respondent does not claim to be a supervisor), however, insisted that he would have to call his
project manager. Bridges testified that he left the decision up to his laborer, Wayne Schaffer,
because Bridges was riding in the cab of the backhoe and Schaffer, the laborer, was the one
who was getting wet. In addition, Bridges testified that Robinson would always call to see what
the weather was, how hard it was raining, and whether Bridges was able to get anything done
and that Bridges always called Robinson before leaving because of weather. Robinson did not
deny this testimony.

Nanney essentially admitted that the job of the boring crew is routine. Arriving at a job
and observing that there are locates, the boring crew knows that the first thing they have to do
before they can bore is to dig the locates. It does not matter what order they dig their locates,
but typically the boring crews dig their locates from the start of the bore to the end. The duties
that they perform, they do day in and day out. The boring crew uses a machine to bore through
the ground, an operator operates the machine, and the locater locates. The crew also dig
locates. It is routine for them to arrive at a job and communally decide that they are going to
start at a certain place, so they would dig the first locate. The digging of the locates is also
routine; the crew leader and the operator would dig down until they found and exposed the
located utility. If there is more than one locate, they would move on to the next one, on down the
line; and after digging their locates, and before they start operating, they have to set up the
machine and have to decide where, the options being at one end or the other or, in some cases,
the middle. Typically, what determined that was where space was available, such as public or
private property, and where the equipment would do the least damage. (And there was credible
evidence that the location was determined by the operator and the locator, jointly.) Once the
machine is set up, they would start boring, and the routine, as Nanney affirmed, would be that
they would bore and it goes fine and they leave. Regularly a boring crew will set up and bore all
day long and nothing happens, and they leave and go back the next day. On occasion,
however, there are problems, such as they would encounter unlocated utilities or a rock they
cannot bore through. For the former, they would call Locate Supervisor Josh Martychenko for a
locate. For the latter, they would call Nanney, and normally he would send a bigger drill. The
crew leader does not call out a bigger drill without going to Nanney first.

The backhoe work is similarly repetitive and routine. The laborer knows that digging
locates and swamping is his job and does not have to be told how or when to do so by the crew
leader. On the few occasions when a crew leader is assigned two laborers, one will swamp,
while the other will dig locates; but, because both tasks are so routine and repetitive, it does not
matter which laborer does which job. When Williams and Bridges, both backhoe operators, had
two laborers, Williams told them which laborer would swamp and which would dig locates; but
Bridges let them decide between themselves what they wanted to do. Picking between two
equally qualified employees to perform a routine and repetitive task is not the type of
“assignment” or “responsible direction” contemplated by Section 2(11). Injected Rubber
Products Corp., 258 NLRB 687, 689 (1981). On the rare occasion when something unusual
happened, such as hitting an unlocated utility, equipment problems, or an absence of locate

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paint on the job, the crew leaders called their superintendent or project manager. There were
also times that the project manager would actually meet the employees on the job to show them
what to do, if the crew was unsure.

In short, what the crew does is basically understood by the crew members: the locates
had to be dug, and then the conduit had to be laid and the cable or wire pulled back through it.
While some of the crew leaders testified that they were responsible for the productivity and
efficiency of their crews, there was in fact no power that Respondent vested in them to do
anything to ensure either productivity or efficiency. Furthermore, until the unfair labor practices
at issue herein, Respondent presented no evidence that it ever held even one crew leader
responsible for the productivity and efficiency of his crew or lack thereof. Rather, whatever
decisions that crew leaders make, such as ensuring that the work had been completed, did not
result in their directing anyone to do anything and, assuming that they did, were not more than
routine and repetitive and not supervisory decisions made “in the interest of the employer.”

“It is well settled that the burden of establishing supervisory status rests on the party
asserting it.” Armstrong Machine Co., 343 NLRB No. 122, slip op. at 1, fn. 4 (2004). “[A]ny lack
of evidence in the record is construed against the party asserting supervisory status.” Elmhurst
Extended Care Facilities, 329 NLRB 535, 536 fn. 8 (1999), quoted with approval in Armstrong
Machine, supra, slip op. at 1, fn. 4. By the very nature of the routine, repetitive work performed
by the crews, the crew leaders do not responsibly direct the work of anybody. “‘[R]esponsible
direction’ . . . depends ‘on whether the alleged supervisor is held fully accountable and
responsible for the performance and work product of the employees he directs.’” Franklin Home
Health Agency, 337 NLRB 826, 831 (2002), quoting Schnurmacher Nursing Home, 214 F.3d
260, 267 (2d Cir. 2000). No crew leader ever was.

The most evidence that Respondent presented was conclusionary statements by various
crew leaders about their being “bosses” and their responsibility for the productivity of their crews
and to see that their job got done. However, conclusionary statements, without supporting
evidence, are insufficient to establish supervisory status and authority. Armstrong Machine,
supra, slip op. at 1, fn. 4, citing Chevron Shipping Co., 317 NLRB 379, 381 fn. 6 (1995), which in
turn cited Sears, Roebuck & Co., 304 NLRB 193, 199 (1991). What Respondent omitted from
the presentation of its case were the crew leaders’ “particular acts and judgments that make up
their direction of work.” Armstrong Machine Co., supra, slip op. at 1, fn. 4, quoting from North
Shores Weeklies, Inc., 317 NLRB 1128 (1995). Finally, because the “Board has a duty not to
construe supervisory status broadly because ‘the employee who is deemed a supervisor is
denied employee rights which the Act is intended to protect,’” Armstrong Machine Co., supra,
slip op. at 1, fn. 4, quoting from Chicago Metallic Corp., 273 NLRB 1677, 1689 (1985), enfd. in
relevant part 794 F.2d 527 (9th Cir. 1986), the Board has found that only individuals with
“genuine management prerogatives” should be considered supervisors, as opposed to “straw
bosses, leadmen . . . and other minor supervisory employees,” Armstrong Machine Co., supra,
slip op. at 1, fn. 4, quoting from Chicago Metallic Corp., 273 NLRB at 1688. I reject
Respondent’s generalized contention that crew leaders exercise supervisory functions by being
in charge of production and getting the work done.

Each of the crew leaders, except Lohman, testified affirmatively that he had never been
given the authority, in those words, to exercise any of the 12 supervisory functions set forth in
the statute. Respondent offered no proof that any of its officers or supervisors specifically
authorized the crew leaders to exercise any of those functions. The most that can be said is
that, perhaps on occasion, the crew leaders may have told a particular laborer to dig a particular
locate. That is, at best, in the circumstances of the facts in this proceeding, routine and not a
supervisory, independent judgment. Hexacomb Corp., 313 NLRB 983, 984 (1994).

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Respondent, however, cites in its brief certain testimony of the crew leaders to support
its contention that they are supervisors. I now consider that testimony of each of the crew
leaders. Williams testified that Nanney asked him how a new laborer, Grant Gresham, was
working out, and Williams told Nanney that he was not. There was no evidence that Nanney
took any action on Williams’ reply; and this demonstrates only that an admitted supervisor
asked an employee about his opinion of another employee, and not that Williams was a
supervisor. In addition, Williams once recommended that Respondent “replace [Gresham] when
he hurt his wrist.” Nanney, however, did not do so; and Gresham eventually quit about a month
later. So, Williams did not effectively recommend that Gresham be discharged. That, however,
is not even the test. The authority to effectively recommend generally means that the
recommended action is taken without independent investigation by superiors, and not simply
that the recommendation is ultimately followed. Children’s Farm Home, 324 NLRB 61, 61
(1997). Neither Nanney nor the other project managers testified about whether they did, or did
not, independently investigate these “recommendations.”

Respondent contends that Williams relayed to Nanney the complaint of laborer Steve
Mack about having to get into a deep hole that had no shoring. There was no evidence,
however, that Respondent authorized or directed Williams to do so or that that was part of
Williams’ responsibilities. Rather, Williams merely acted as a conduit to relay that complaint,
which Williams denied was a “grievance”; and thus this instance does not prove that he had any
authority to adjust the grievances of Respondent’s employees. Pine Brook Care Center, 322
NLRB 740, 748 (1996). I conclude that Williams was not a supervisor within the meaning of
Section 2(11) of the Act.

Respondent contends that, when Bridges was on a job, higher supervision relied upon
him to see that the job he was working on got done. There is nothing in the record to support
this proposition, except Bridges’ assumption that that was so. In any event, even if the
contention is accurate, the mere fact that higher supervision relies on an employee to see that
he is doing his job does not prove that the employee is a supervisor. Rather, Bridges had to get
the work done, and he knew, as did the member or members of his crew, what each job entailed
because it was so routine and repetitive. Respondent also relies on Bridges’ testimony that,
when he arrived on a job, he would figure out how the job would be done. That was a reference
to a job Bridges had worked with Williams and a laborer, Steve Mack. It is unclear who, Williams
or Bridges, was acting at that time as a crew leader; but Bridges’ testimony made clear that any
decision was a joint one and appears to be based on making the most routine of decisions, such
as which end of the job to start on or which locate an employee should dig.

Regarding Respondent’s contention that Bridges was responsible to see that all of the
proper equipment, tools, and supplies were on the jobsite, the evidence demonstrates that the
blueprints that Bridges received each day provided this information. Besides, the fact that an
employee ensures that he has the right tools and equipment is not a supervisory function within
the plain language of Section 2(11). Finally, Respondent claims that Bridges made the decision
that his crew would work nine hours a day. That is accurate, at least to the point that Bridges
stated that he wanted to work nine hours per day, and not more. Conspicuously absent is proof
that he set nine hours as the workday, or directed employees to work nine hours, when they
wanted to work less, or refused to permit employees from working more time. In fact, Bridges’
laborer, Wayne Schaffer, had no problem working an hour of overtime each day. In sum, even if
I credited Respondent’s contentions, I would still find no proof that Bridges was a supervisor;
and I conclude that he was not.

Respondent’s contention that Hanephin motivated lazy crew members is inaccurate.
Clearly, he never gave orders to anyone to move faster or otherwise directed their work. That he

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may have trained a new worker is not an indicia of being a supervisor. He had no authority to
give breaks. His desire to work 50 hours a week was apparently joined in by members of his
crew. He did not order them to work overtime, and he acceded to the wishes of some of his
crew to return to the shop at a particular hour. Whether Hanephin considers that he was the
boss of a worksite is of no consequence. The question is whether he exercised supervisory
authority. As he testified:

I guess I was just told that I was in charge on the job site. If there was a question
about anything, that I made the decisions, but there isn’t a whole lot to it. I mean
where to dig or where to start digging. I mean there isn’t – I don’t ever remember
being told anything other than, you know, just you are a crew leader and I’ve
been a laborer for years, so I knew basically. Nobody specifically told me
anything. It was just play it by ear and that was about it.
Q. Were you ever told what kind of decisions you had the authority to make?
A. No.

The record reveals that he is not a Section 2(11) supervisor.

Lohman was the crew leader of the restoration crew,6 normally consisting of one
laborer, whose responsibility was to fill in the holes and trenches dug by the boring and backhoe
crews; rake, tamp, and level the soil; lay down sod or, more frequently, plant new grass seed;
and cover the seed with straw. Although within the first week of his employment in early April
1999, Nanney told him that he had the authority to fire employees, it subsequently turned out
that he did not. He wanted to fire employee Damian, but Nanney told him that he could not,
because Nanney was the supervisor. When Lohman recommended that Nanney needed to do
something about Damian, because he was sleeping on the job, sleeping on the truck, and was
not doing anything, Nanney said that he could not fire him. Although Nanney also told Lohman
in April 1999 that, in addition to having the authority to fire employees, he had the right to
suspend employees, it is most likely that Lohman did not have that authority. In more than four
years, he never exercised it; Nanney admitted that crew leaders were not involved at all in the
termination process; no other crew leader had the authority that Lohman thought he had; and,
had he exercised what he thought was his authority to suspend employees, it is probable that
Nanney would have told him, just as he did when Lohman wanted to fire someone, that he could
not, because Nanney was the supervisor.

Respondent contends that Lohman asked that two employees be removed from his
crew for poor performance and succeeded in that request. However, one was Damian, and
Lohman did not succeed. Respondent also cites the example Vince Vulsteki; but Lohman asked
Nanney to take Vulsteki off his crew because he could not get along with him (“He just liked to
argue with everybody. It didn’t matter who he was with.”), and not because of poor performance
(“he was a good worker”). Nanney moved him several weeks to a month later. I find that this
was not a recommendation for a transfer, exercised with “independent judgment,” but only a
personality conflict between two employees, and not a reflection of a supervisory function.
Indeed, Nanney testified that he tried “to get everybody that gets along, that does a good job
and works well with each other, on the same crew.” Respondent next contends that Lohman
recommended raises for two employees. However, Respondent did not give a raise to laborer
Garret Jones, despite Lohman’s kind words. Another laborer, Gabe Creswell, who had been
employed for six or eight months, told Lohman that he wanted a raise. Lohman relayed that
6 In addition, Lohman performed some open cut work using a small backhoe, ran a small excavator,
dug into electrical pads and poles, pulled electrical wire, and spliced conduit.

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request, telling Nanney “that Gabe doesn’t need any supervision on any of the jobs. He knows
exactly what to do. He can be a crew leader if he wants, if he’ll let him do it. He needs a raise.”
Creswell was “promoted” two weeks later. Lohman was never told that he supervised anyone
and believed that the supervisor supervised the laborers. His function, he believed, was just to
relay a message from the supervisor to them. His recommendation in this one instance,
unsolicited by Nanney and not part of Lohman’s normal duties and responsibilities, does not
constitute an effective recommendation of a raise. Brown & Root, Inc., 314 NLRB 19, 21 (1994)

Lohman testified that he told his crewmembers that, when they came to work with him,
he had been told to get as much done as he could in a day, which was as long as one could
work. He acknowledged that as crew leader he had overall responsibility for the performance,
effectiveness, and productivity of his crew. He further acknowledged that a crew leader was
responsible for the on-the-job training and instruction of all crew members regarding their job
functions and work policies. Finally, he conceded that the crew leader was expected to lead by
example and make every effort to help crewmembers achieve productivity as often as possible,
while thoroughly completing every job safely and professionally. None of these admissions
establish Lohman’s supervisory status where Respondent never, until the day that it finally
trumped up evidence in an attempt to justify his discharge, held him accountable for the actions
of anybody on his crew. Equally important, Respondent never offered any evidence, other than
the evidence that I have rejected, about the authority Lohman actually exercised, nor any
evidence on his independent judgment.

Instead, Lohman’s job appears rather routine and repetitive. His laborer normally
decided what he wanted to do and performed it without checking by Lohman, unless the laborer
was inexperienced. He and the laborer worked until the job was finished, it was too dark, or he
and his crew were too tired to work anymore. When it rained, Lohman called Nanney. If the
laborer did not want to work overtime, Lohman called Nanney. Every night, before leaving the
jobsite, Lohman called Nanney. I conclude that Lohman is not a Section 2(11) supervisor.

Employed for two and one-half months, Matt Sutton spent only some of his time as a
crew leader on a pulling crew on the cable/telecommunications side of Respondent’s business,
installing fiber optic cable into pipe already in the ground. Eighty percent of Sutton’s latter
portion of his employment was spent working on one particular job, a World Com/MCI job,
supervised by Project Manager Sellers, who was at that jobsite daily, from 8 or 9 a.m. until the
employees left in the evening. There was nothing on that job that was not supervised by Sellers,
with whom Sutton met each morning, who told Sutton what equipment to use; assigned other
employees to work with Sutton, without input from Sutton; determined the priority of work; told
Sutton where to start each day; shuffled employees around during the day; and determined
when employees went home. In addition, Sutton worked about 80 percent of his time on this
World Com/MCI job and other jobs with John Langford, a backhoe operator, who was the crew
leader. So, for that portion of his work, Sutton was not even a crew leader.

For the other relatively minor portion of his employment, at which Sellers was not
present and Langford was not the crew leader, Sutton mostly “proofed duct,” which is the
process of checking the plastic piping for obstructions and installing a pull wire, accomplished
by using an air compressor to blow rope, to which a heavy object, called a rocket, is attached,
through the pipe from one hole in the pipe to the next, where a laborer is stationed and radios
Sutton to stop the compressor when he sees the rocket. The laborer pulls the rocket out of the
hole and wraps the rope around an assist wheel which is used later when the wire is pulled
through the pipe. The crew then moves one hole down the pipe and repeats the process, hole
by hole, each time the crew proofs duct. Sutton’s decisions as a crew leader are to decide
where to set up the reel of rope and to tell the laborer which hole to go to. There is no

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independent judgment required in telling a laborer which hole to go to where the rope is always
blown to the next hole down. Lunch was taken at a good stopping point in the work. Sellers
decided whether to send employees home when it was raining, and Sutton never left work for
the day before calling Sellers, whom he also called if anything unusual happened, such as an
obstruction in the pipe.

In sum, the vast majority of Sutton’s time was spent on a crew on which he was not the
crew leader. During the much smaller period that he was, he was closely supervised by Sellers
and, in any event, engaged in the most routine and repetitive work that required no independent
judgment. There is no evidence that Sutton had any authority to exercise independent judgment
in directing the work of anybody. I conclude that Sutton was not a Section 2(11) supervisor.

Respondent contends that Farris had the authority to recommend effectively the removal
of one of his crew members from his crew. The facts are that Farris was dissatisfied with
operator Jason Politte and complained to Robinson that Politte was lazy. Farris asked for a
different operator, to which Robinson replied, “Not at the moment,” adding, “That’s what
everybody says about Jason.” About two weeks later, Politte was taken off his crew. Farris’s
complaint was based on the fact that, when he was digging locates, Politte did not like to work
when he was with a group of people; he would rather talk, leaving Farris to do the digging.
Farris complained “[b]ecause he wasn’t being a team player.”

Because Robinson did not testify, it is impossible to gauge whether he removed Politte
from Farris’s crew because he agreed with Farris’s recommendation, or whether Robinson
already knew of Politte’s proclivity to slack off from work, as evidenced by his acknowledgement
that others had complained about Politte, or whether Robinson moved him for a reason entirely
unrelated to Farris’s complaint. Thus, it is unclear whether Farris’s comment was an effective
recommendation. In order to confer supervisory status, “the exercise of disciplinary authority
must lead to personnel action, without the independent investigation or review of other
management personnel.” Franklin Home Health Agency, 337 NLRB 826, 830 (2002). Besides,
Robinson agreed that he wanted crews to get along with one another, and this was not
discipline that was being recommended but a shift of one person because of a personality
conflict. Finally, this was merely a complaint by one employee about another, dealing with the
compatibility of employees who worked together. Complaints about compatibility do not prove
supervisory status. Armstrong Machine Co., 343 NLRB No. 122, slip op. at 2; Brown & Root,
Inc., 314 NLRB at 21.

Respondent contends that Shipp had the authority and exercised it to request that
Politte, then a member of his crew, be removed and that Nanney removed him. What Shipp
actually complained about to Nanney was that he had told another laborer to “to put the carrot
(phonetic) inside the pipe, and pull the pipe out that we needed for that job.” Politte told that
laborer not to do it, because Shipp did not have that authority; Politte was there longer. Shipp
told Nanney: “I can’t deal with him anymore.” This statement was merely a complaint and not a
recommendation of anything. Assuming, however, that it could be construed as a
recommendation, Nanney did not testify about this incident; and thus the record is barren of
proof that he understood what Shipp was stating and that he adopted Shipp’s recommendation,
without independent investigation, in removing Politte from Shipp’s crew. Respondent’s only
specific contention about Nathan Schaffer was that: “He was aware of his authority as he
testified to the fact that another crew leader had a laborer taken off his crew for failing to follow
directions.” Although Schaffer recalled that the laborer’s name was Puhl, it is likely that it was
Politte. In any event, once again, Nanney did not testify; and Schaffer’s hearsay recollection is
meaningless. I conclude that neither Shipp nor Schaffer are Section 2(11) supervisors.

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Having found that all the persons who were discharged by Respondent are employees
and not supervisors, I turn now to the discharges, each of which are alleged to have violated
Section 8(a)(3). On Monday, March 31, two days after the first Union meeting, Eirvin held a
meeting of crew leaders to whom he stated that all boring crews should drill 1,000 feet per week
and threatened that, if they did not, he would start “getting rid of them” after a month. In the first
few days of April, Mike Stankewitz, one of Respondent’s project managers, asked Eirvin’s
brother, Ed, another project manager, if he had heard that Respondent was going to discharge
a couple of employees that had started “that union shit in St. Louis.” Ed denied hearing that; he
had not talked to his brother. On April 14, Nanney threatened Hanephin that, if things kept going
the way they were, there was going to be a bunch of people gone from the Ameren UE side in
the next few weeks.

Respondent did not wait as long as Nanney threatened and as Robinson suspected,
when he warned Farris just after Eirvin’s April 15 speech: “Just watch your ass, and don’t give
Mr. Happy [Eirvin’s nickname] a reason.” On the afternoon of April 15, within hours of delivering
his diatribe against the Union and only two weeks after threatening to discharge crew leaders a
month later, Respondent terminated for poor production Farris and Schaffer, two locators, and
Edgar Schreit, a boring machine operator, all of whom had attended the Union’s first meeting on
March 29. At the second Union meeting, on April 8, Farris and Schreit sat at the head table,
Farris helping employees complete authorization cards and collecting completed cards, Schreit
taking attendance and answering questions of employees. As noted above, Eirvin had
knowledge of exactly what was happening at that meeting and had to have knowledge of who
had attended and what each did. In fact, in his earlier speech, he specifically directed his
remarks to “those of you guys that are just so adamant about being union.” Although Eirvin’s
own words evidence his complete knowledge of the Union drive, the General Counsel also
relies on the “small plant doctrine,” which permits the inference of knowledge of union activity
from the fact that there are 59 employees in this unit. I agree. Breuer Electric Mfg. Co., 184
NLRB 190, 194 (1970); NLRB v. Joseph Antell, Inc., 358 F.2d 880, 882 (1st Cir. 1966), enfg.
Malone Knitting Company, 152 NLRB 643 (1965). Many employees, including Schreit and
Farris, were talking with their fellow employees in an effort to get more of them to attend the
Union meetings. While Schaffer may not have actively engaged in soliciting employee support,
he nonetheless attended Union meetings before April 15 and signed a Union authorization card.

Although Respondent made much of the fact that various locators were responsible for
production and thus were supervisors, Respondent discharged Schreit for lack of production, in
spite of the fact that he was a boring operator and not responsible for his crew’s production.
Indeed, I have found above, in partial agreement with Respondent, that the bore could go no
faster than the locator was able to locate, and in that sense the locator was responsible for the
production of the crew. Respondent offered no explanation for its discharge of Schreit, other
than Eirvin’s testimony that poor production is the crew leader’s responsibility “unless it is the
operator’s fault,” an explanation which is so general as to be meaningless.

What makes Respondent’s defense worse is Eirvin’s claim, on examination by the
Counsel for the General Counsel, that Schreit was one of the “three individuals we’d change
people around on to give them the better people to see if they’d come up to par.” Eirvin claimed
that Respondent swapped Schreit “around with several other people and he wasn’t getting it.”
Very simply, that was not so. Even Robinson did not agree with Eirvin, denying that he obtained
any help for Schreit or even considered doing so (“He had time – they had time, as crews, to get
their production up.”) Rather, Respondent assigned Schaffer, whom it subsequently discharged
for poor production, when Schaffer was promoted from operator to locator on about February
10; and, as a new locator, Schaffer’s regular operator was Schreit, except for one day, when
Schreit was the operator for Shipp, who had even worse production that Schaffer and was also

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fired later for low production. Finally, although Robinson wrote on Schreit’s personnel appraisal
the word “production,” he never discussed that with Schreit, whom he otherwise graded as a
good operator, an opinion that he confirmed in his testimony.

Having found that Respondent’s explanation for this one of three discharges on April 15
was false and concocted, I turn to the other two discharges, which I find to be pretextual. First, I
rely on their timing, the same day as Eirvin’s antiunion tirade. Second, I rely on my earlier
credibility findings and refuse to believe Eirvin and Respondent’s supervisors. In fact, regarding
Schaffer, Eirvin supplied the same kind of lies that he did in attempting to justify the discharge of
Schreit, claiming that he attempted to help Schaffer, a brand new locator, by placing weekly as
many as two or three of the best operators “to try to bring him back up to speed . . . and he still
didn’t cut it.” Eirvin named his better operators as David Farris, Clifford Krause, Steve Gordon,
and Jerry Benetatos; yet none of them, including Krause, whom he specifically named ah
having worked with Schaffer, spent a full week or any time with Schaffer sometime after Eirvin
decided that Schaffer was not producing. Robinson, in addition to failing to corroborate much of
Eirvin’s testimony, knew of no plan to help Schaffer locate better and offered Schaffer no help to
improve his production.

Similarly, Eirvin’s claim that he put Farris “with several different people [a]nd it never did
click” was false. It is true that Farris worked with Krause, but he did so very early in his
employment, before Farris’s “production problem” allegedly came to Respondent’s attention. But
later, from about the middle of February, Farris was assigned Politte, who was a legitimate
problem employee, and Bartle, neither of whom were among Respondent’s best operators.
Thus, Robinson’s claim that “[w]e tried to move people around and get [Farris’s] production up”
cannot be sustained.

The General Counsel’s final argument to demonstrate Respondent’s discrimination
against Farris and Schaffer rests on disparity, that Respondent retained Shipp, another locator,
whose union activities were not as significant as Farris’s and Schaffer’s. His production was
lower, averaging 138 feet per day, against the average of 158 feet for Schaffer and 151 feet for
Farris. Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); approved in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983), the General Counsel has presented a prima facie case of Section 8(a)(3)
discrimination. Respondent knew of the union activities of all three employees, it was intensely
opposed to the Union, it had no cause at all to discharge Schreit, and its reason for discharging
Schaffer and Farris was suspect, because Respondent had never previously discharged crew
leaders for lack of production. Their production was used by Eirvin as a pretext, and his
discharge of them was disparate, in light of the General Counsel’s showing that Shipp’s
production was even worse.

Under Wright Line; Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999); and Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996), Respondent may overcome the General Counsel’s
prima facie case by demonstrating that it would have taken the same action, even in the
absence of the union activities of the three discharged employees. It did not do so. I note
particularly Eirvin’s lack of any credible reason that he discharged Farris and Schaffer, rather
than Shipp. Furthermore, Respondent’s explanation of the process of terminating the three
employees was unpersuasive. Although testifying that he met with Eirvin to discuss the
terminations, Robinson could not recall how many months of production sheets they had at this
meeting, how long the conversation lasted, or if time and material work, for which Respondent
credits employees with three times their footage for boring in rock or hand-trenching, was part of
the discussion. Eirvin and Robinson could not agree on when they noticed that Farris’s
production became so poor, and, although the evaluations of many of the employees noted

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problems with production, the problem never became so important that it was ever actually
discussed with Farris and Schaffer, no less a warning that they risked termination. Indeed, at
one point, when Robinson was asked the reason that he did not reassign Farris to be an
operator, Robinson said: “He was let go for low production. If he had a bad attitude about
something, he would have a bad attitude anywhere he was at.” That inadvertent switch from
“low production” to “bad attitude” revealed Robinson’s real concern about Farris’s union
activities. James Julian Inc. of Delaware, 325 NLRB 1109 (1998); Armstrong Machine Co., 343
NLRB No. 122, slip op. at 1, fn. 4 (2004).

The lack of clarity of Robinson’s testimony, together with the credibility problems
previously discussed, persuades me that this testimony was a fiction and that a cogent
discussion of the work failures of these three employees never occurred. Respondent had no
history of terminating operators or locators for poor production, and Eirvin’s claim that “multiple”
locators had been fired for poor production was false. Even Nanney and Robinson disagreed
with Eirvin, and Respondent produced no documents to support Eirvin’s testimony about
“multiple” locators. In addition, Eirvin admitted that Respondent has reassigned poorly
performing locators to other positions rather than terminating them, but failed to justify his
refusal to treat Schaffer and Farris similarly. I conclude that Respondent’s discharge of these
three employees violated Section 8(a)(3) and (1) of the Act.7 D&F Industries, Inc., 339 NLRB
618, 622 (2003).

Hanephin attended the Union’s first and most of the other meetings, talked to other
employees to drum up Union support, and wore a “Union Yes” pin on his shirt everyday at work
for a week or two before his termination. His name was on the list of Union supporters and the
Union’s request for recognition. He was the one whom Nanney told that there was going to be a
bunch of people gone from the Ameren UE side of Respondent’s business in a couple of weeks;
and, when Nanney told him on April 24 or 25 that he wanted a great big bumper sticker and a
“Union Yes” pin, Hanephin replied that he knew where he could get them. Despite Nanney’s
awareness of Hanephin’s feelings about the Union, Eirvin did not admit that he had knowledge
that Hanephin was a union supporter. Instead, he testified: “I did not know for sure Rodney was
a union supporter. I assumed . . . by his attitude.”

Whether Eirvin “assumed” or knew, and I find that he knew, on April 25, Hanephin gave
him the perfect excuse to get rid of him. As I have found above, Eirvin seized on the fact that
Hanephin brought conduit out of the ground on the non-transformer side of a utility pole,
fabricated a document to support Hanephin’s discharge, and repeatedly testified falsely at the
hearing. That is a classic case of a pretextual discharge and needs nothing more to prove a
violation of Section 8(a)(3) and (1) of the Act. In addition, Eirvin, knowing, according to his own
admission, of Hanephin’s “attitude,” assumed that no one of his employees would commit the
kind of mistake that Hanephin did, unless he did it as a result of “treason.” That kind of mindset
is the epitome of antiunion bias and prejudice.

The General Counsel makes a number of other arguments to support the finding of a
violation. Hanephin, a two and one-half year employee with an impeccable reputation
7 Strangely, both Schaffer’s and Schreit’s personnel files contain employee warning reports that
indicate that they were discharged for hitting a located gas line. However, the reports were dated March
17, and both employees were actually discharged on April 15. Respondent did not rely on the incident in
defending its action; and I reject the General Counsel’s contention that Respondent’s defense shifted or
was inconsistent and that I should conclude, for this reason, that no legitimate reason existed for the
discharges.

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(according to his February 14 evaluation: “Rodney Works Hard Every Day Finds A Way To Get
The Job Done Right The 1st Time & In A Timely Manner. He Makes Good Decisions Without
Being Prompted.”), testified that he had placed conduit bends near a telephone pole 100–150
times and, when Nanney was his supervisor, he sometimes told him that he wanted the bend on
a specific side of the pole and, other times, there would be paint clearly indicating where the
bend was to be placed. In this instance, Hanephin believed that the red paint on the other side
of the pole from where he put the bend signified an existing electrical utility, which he
erroneously thought was a little bit off on their mark. He explained that there was no other locate
mark near that pole so he figured that was for the electric wire running up the pole.

Respondent issued no written document detailing the place for the wire on a pole and
never told its employees at meetings or otherwise that they always had to run the wire on the
transformer side of the pole. Lohman testified that there was no industry standard as to the
meaning of red paint on a utility pole, and no one was called by Respondent to refute that
testimony. Hanephin testified that he placed the conduit to save time and money and less hand
digging, because the wire was left by the boring crew sticking out of the ground about four feet
from that side of the pole (the opposite side of the pole from the paint and transformer above),
and denied that he had made this mistake purposefully, as an act of sabotage. I believe that his
denial was truthful and sincere. All the credible evidence (and that excludes Eirvin’s, the only
testimony to the contrary) indicates that Hanephin was never told that the conduit was to be
brought out of the ground and up the pole on the transformer side of the telephone pole.

Despite Eirvin’s claim that Hanephin was the only employee to have brought a 90
degree bend out of the ground on the wrong side of a pole, Nanney admitted having done so
and not being terminated. Pour testified that Hanephin’s mistake was not the first time one of
Respondent’s employees had put a bend on the wrong side of the pole. Lohman testified he put
a 90 degree bend on what turned out to be the wrong side of a pole at least five times without
discipline; and, at least ten times, he also moved conduit that had been put on the wrong side of
the pole by others. On other occasions, employees placed the conduit too close or too far away
from the pole or bored them too deep or too shallow, all of which had to be corrected; and no
employee was disciplined. Nor were employees discharged for jack hammering through a
parking garage, tearing the awning off a McDonald’s restaurant, damaging a golf course, or
committing mistakes that cost Respondent thousands of dollars.

The General Counsel made a more than ample prima facie case under Wright Line, and
Respondent made no credible case that, but for Hanephin’s union activities, it would have
treated his mistake in any manner different from the mistakes of its other employees, whom it
did not discipline. The day before Hanephin was fired, he was called into Eirvin’s office, where
he explained what he had done. Eirvin said that this was the first time he had ever had him in
the office so he did not want to fire him, but noted “just consider yourself lucky you are not fired
with these buttons and bumper stickers and a magic list floating around.” Eirvin felt that
Hanephin had a bad attitude because of “all this union activity,” so that Eirvin turned Hanephin’s
mistake into an act of “sabotage,” showing how deeply affected Eirvin was by the union
organizing drive. I infer from the falsity of Eirvin’s testimony about Hanephin’s discharge that
there is another unlawful reason for the discharge, the source of Hanephin’s “bad attitude,”
union activities. Shattuck Denn Mining Corporation v. NLRB, 362 F.2d at 470. I conclude that
Respondent violated Section 8(a)(3) and (1) of the Act by discharging Hanephin.

On the same day that Eirvin fired Hanephin, Friday, April 25, Sellers and Respondent’s
Safety Director, Mike McElligott, met with pulling crew leader Sutton and his crew, Ryan Adams,
Clarence Williams, Rocky Lucas, and John Langford. Sellers said that the work in St. Louis had
run out and that he needed three employees to go to Jacksonville, Florida. The move was

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permanent, the employees would not be given a raise or relocation fee, and they needed to be
in Florida in three days, on Monday. He called on each of them, and each declined. He then told
Langford and Lucas to go back to what they had been doing the day before and told Sutton,
Williams, and Adams that they were laid off. An internal memorandum and Respondent’s
termination report (“Matt was offered a position in Florida but declined. Matt was terminated due
to his decision.”) indicate, however, that they were terminated.

The three who were terminated supported the Union. Langford and Lucas were the only
employees on this crew who did not engage in any union activities.8 When Sutton was being
interviewed for his job (he started two and one-half months before, on February 10), Sellers said
that there would be no lay offs; that the previous year he kept employees working 40 hours; and
that, if things did slow down, he would find work around the yard for Sutton to do, but he
expected things to pick up. Sutton informed Sellers that he could not travel because his wife
worked Monday and Friday nights and he had trouble getting babysitters for his child. Sellers
said that Respondent could work with that and that Sutton’s inability to travel would not be a
problem; he would be able to keep Sutton working around the shop.

At the end of his employment, Sutton worked primarily on a large MCI job and was
aware that the job was about to end. On April 17 or 18, he asked Sellers what he would do
when the MCI job ended. Sellers said that the crew was to go to Blue Springs, Missouri next.
Sutton asked what Sellers was going to do with him because he could not travel with his wife
working nights and not having a babysitter. Sellers said he would find him work with another
crew so that he could stay busy. Despite Sellers’ commitment and assurances, Sutton was
terminated.

The General Counsel has proved a prima facie case under Wright Line. The three who
were terminated were Union adherents: the two who were not terminated were not Union
supporters. Sutton attended all the Union’s meetings; he talked to the employees on his crew
about the Union; he signed an authorization card; he wore a “Union Yes” pin on his hat at work
in the presence of Eirvin, Nanney, Robinson, and Sellers; and his name was on the list of union
supporters and request for recognition that various employees delivered to Respondent. On
April 23, two days before his discharge, Sutton gave Sellers a copy of the Union’s request for
recognition, which Sellers refused to accept and which Sutton left face-up on Sellers’ desk. A
promise had been made to Sutton that he would not be transferred but would continue to be
employed by Respondent at the same place. Sellers had committed that the two other Union
adherents would be transferred to another job in Missouri. There is no credible evidence that
Respondent terminated employees for refusing to accept permanent transfers to Florida. There
is evidence that Respondent was hiring three laborers on a concrete crew, work that Adams and
Clarence Williams could have done or trained to do.

Respondent did not overcome the General Counsel’s prima facie case. In particular,
Sellers never testified about any lack of work for Sutton or the reason that he did not find work
for him, as he had promised earlier. There still remained cleanup and restoration work on the
MCI job. There was no testimony that Clarence Williams and Adams, both laborers, were not
qualified to do the concrete work. I do not believe Eirvin’s testimony to the contrary, because a
laborer hired on April 24 had absolutely no concrete experience. Besides, the evidence was
overwhelming that, of all the employees for whom Respondent had need, it constantly needed
8 That they may have had more seniority than the other three employees is irrelevant. No one
testified that Respondent followed seniority when it transferred or laid off its employees.

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good laborers. In fact, Respondent rehired Williams and Adams on May 27 and June 2,
respectively. I conclude that these three discharges violated Section 8(a)(3) and (1) of the Act.

I have previously discussed Respondent’s blatant and unconscionable fabrications of
customer complaints to support the discharge of Lohman, a known Union adherent, on April
28.9 Those fabrications came specifically from Martychenko and Robinson, who must have
been following Eirvin’s orders. The customers whom the latter two identified as having made
complaints denied that they had done so. They, unlike Respondent’s representatives, were not
biased and prejudiced and had no reason to lie. I credit them. Even Respondent’s alleged
documentation was faulty: it tried to blame Lohman for jobs that he had not completed or had no
part in the alleged faulty restoration work. Added to that is Robinson’s questionable claim that
Respondent had been receiving customer complaints about Lohman’s restoration work for six
months, the number and dates of which he was unsure and the written of record of which was
absent. Indicative of the falseness of his testimony was the fact that his February 14 evaluation
of Lohman not only omitted mention of all these complaints but also praised Lohman for his
work (he “takes pride in completed jobs”). Lohman testified that no one had discussed any
customer complaints with him, which is consistent with Respondent’s lack of customer
complaints (other than fabricated); and I believe him.

The General Counsel’s prima facie case under Wright Line was overwhelming. To the
contrary, Respondent made no showing that it would have terminated Lohman absent his union
activities. Before April, Respondent had always permitted Lohman to repair whatever the
customer had complained about.10 Robinson could testify only that he did not know the reason
that Lohman was not permitted to make the new repairs, as well, which, as found above, were
no more than Respondent’s contrivances. Eirvin’s insistence that Respondent had a history of
terminating employees for poor restoration was false. Both Robinson and Nanney contradicted
him, and Respondent, despite having an opportunity to do so, introduced no documentary proof
to support Eirvin. Another employee, Doug Kutter, left his job in much worse condition than
Lohman was accused of, albeit falsely, and was only warned. For all these reasons, I conclude
that Respondent violated Section 8(a)(3) and (1) of the Act.

From early December, Adam Williams had been the crew leader of a two-man crew, the
other member being laborer Steve Mack, performing open cut work. After April 15, somewhere
about April 17–24, Bridges was put on the crew. On Thursday, May 8, Robinson and McElligott
met with the three employees.11 Robinson told them that the open cut work in St. Louis had
dried up and gave them the choice of going to work, starting Monday, in Florida, which would be
a temporary assignment on which they would hand dig, or being laid off, which, in light of all the
facts, meant “terminated.” The employees would have to find their own means of transportation
(when transferring to Florida, Ed White’s crew had been permitted to drive a company truck);
motel expenses would be paid; the employees would be paid an extra dollar per hour, as was
usual for out-of-town work; but they would not be paid for their time driving to Florida, which was
9 The General Counsel contends that Respondent presented a shifting or inconsistent defense when
it opposed Lohman’s application for unemployment benefits on the ground that “he was offered work in
Florida and chose not to go.” I find that that opposition, prepared by one of Respondent’s clerical
employees, was an inadvertent mistake.
10 By this finding, I do not imply that Lohman did his work poorly. Sometimes, for example, despite
throwing down sufficient grass seed, the planting is disturbed by a violent storm, which washes away the
seed.
11 The testimony of the employees differed in numerous respects. The narration of these discharges
is based on the probabilities of what actually happened, and when, and not on any particular employee’s
recollections.

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not Respondent’s usual practice. Bridges declined the assignment and was terminated on May
13.

Mack and Williams agreed to go and were given the telephone number of the project
manager in Florida, Mike Stankewitz, who said, in the first telephone call that Williams made,
that he had no work for them until May 18 and, in the second, that he would not be ready for
them on May 18. That prompted Williams to speak to Eirvin, who denied Williams’ accusation
that they were being transferred because of the Union and said that they would be in Florida
until work in St. Louis picked up and that, if they did not go to Florida, they would not be called
back and would be fired. Williams threatened that, if he went to Florida, he would try to organize
the facility there. Williams and Mack never went to Florida. On the day that they were supposed
to leave for Florida, sometime about May 18, Mack backed out, because he feared being laid off
in Florida because of his union activities. Williams then decided that he would not go, because
he could not afford to take the trip alone.

Respondent knew that Bridges, Williams, and Mack were Union supporters. Eirvin so
admitted; except for Mack, Robinson did, too. Employee Harold Armstrong was interrogated by
Eirvin on about April 15 and identified both Bridges and Williams as being at the April 7 union
meeting. On April 16, Bridges presented the employees’ request for union recognition to Eirvin,
which he rejected, stating that he had told the employees the day before that he would not
recognize the Union. It was only after that event that Bridges was first assigned to work with
Williams and Mack.

The reason for their layoff is suspect. First, I find it difficult to believe that open cut work
simply disappeared, as Respondent told the employees. The employees were in the middle of
their job, with just a bit more work to finish (it began to rain midday, so they could not continue
to work), on the very day that they were given the transfer option. Other employees had to be
sent back to that job to finish it, which the three employees could have finished. Furthermore,
they had been working regular overtime; and, within several weeks prior to their transfer option,
Respondent had contracted out a substantial amount of open cut work. It is undisputed that the
soil in Missouri is filled with rocks, and the rocks prohibit the use of equipment other than the
trenchers and backhoes that Bridges and Williams operated. Nanney conceded that
Respondent had no idea which of the ten or twenty jobs given to it by Ameren UE, on any given
day, week, or month, would hit rock and need to be open cut. After Bridges and Williams were
discharged, Respondent had new open cut work and, just one day after it issued its termination
letter to Williams, hired Jeremy Warden, another backhoe operator, and John Carrigan to do the
same open cut work that Bridges and Williams had previously performed. Respondent shifted
Krause from a boring machine to a backhoe. In June it received bills for open cut work that it
subcontracted to CSG Utilities (the bills do not show when the work was performed). By July,
Respondent transferred Lucas from the telecommunications to the Ameren UE side and had so
much additional open cut work that it had to bring to St. Louis Florida Project Superintendent
Jay Searles to perform that work.

So there was open cut work in St. Louis that Respondent could reliably predict would be
available for these two very experienced operators. Williams could operate a bulldozer,
backhoe, track hoe, plow, trencher, cement cutter, and excavator; Bridges, with eight years of
underground utility experience, could operate a backhoe, boring machine, trencher, and plow,
and he could also locate. Even had there not been work available at the instant that they were
offered their choice of Florida or discharge, work in some craft was available to tide them over,
certainly the laborers’ work of hand digging that they were offered in Florida. Nanney rated
Williams as a “[v]ery good operator of anything we have. He will get the product in. Will try
anything and succeed UE, water, etc. Does anything we ask him to do.” Robinson rated Bridges

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“very professional” and a “good operator.” In sum, I find that there was work available for these
employees.

Second, Respondent’s offer was suspect. Bridges was first employed by Respondent on
January 13 and expressly told Nanney during his interview that he had been traveling for six
years and would not be willing to travel outside of Missouri. Nanney represented to him that
Respondent had “a vast amount of open cut work” and that Respondent had enough work in St.
Louis that he would not have to travel further than Knob Noster or Kansas City, Missouri. By
offering Bridges a transfer to a location that Respondent knew Bridges would not accept,
Respondent discharged him. Indeed, Respondent offered no reason that it needed Bridges, a
trained and experienced operator and, for that matter, the other two employees, to hand dig in
Florida and could not hire manual laborers in Florida, instead, and no proof was supplied by
Respondent to show that its Florida operation could not hire persons there.

Third, even Respondent admitted that Mack was one of its best laborers. He was a
better performing employee than some (for example, Ryan Lamb) who were retained.
Respondent traditionally had trouble retaining its laborers, who had a substantial turnover.
There is no reason that Respondent would have wanted to rid itself of one of the few laborers
who performed his work well and diligently and for whom Respondent had a high regard. In fact,
during his interview in November 2002, Mack was told not to expect any lay offs unless it was
raining or snowing. Furthermore, even if the open cut work had dried up, as Robinson told the
employees, Mack was experienced in digging locates and performing restoration and concrete
work; and because Respondent had a practice of switching employees from one side of its
business to another to fill its needs, Mack, but for his Union activities, was certainly in demand.
For example, Respondent had an opening for a laborer on a concrete crew on May 8 and could
have retained Mack in that position. In addition, after Mack was terminated, Respondent hired
numerous laborers, but failed to rehire Mack or call him back.

Fourth, there are documents that reveal that something in this transfer-discharge was
amiss. For example, in the three employees’ personnel folders was a termination memo, dated
May 7, that McElligott wrote regarding the meeting that day, captioned “Termination due to
refusal to relocate and due to lack of work.” It stated: “All employees were undecided for
relocation at this time. So a decision was made as of [sic] for lack of work in the St. Louis area,
the employee would unfortunately be terminated at this time with no time frame of re-hire.”
Obviously, Respondent expected that the very offer of a transfer to Florida would be so
unappealing that the employees would reject the transfer, even though only Bridges did
immediately. Also included in Williams’ personnel file is a memo written by Ed Eirvin the day
after the meeting, May 8, about receiving a customer complaint regarding a job Williams
performed in 2002. Respondent gave no explanation about this complaint regarding an event
that occurred at least five months before, and I infer that Respondent was trying to strengthen
its case to justify its discharge of Williams.

Fifth, Respondent had never laid off an employee on the Ameren UE side of the
business. Respondent had never forced transfers to Florida, under penalty of termination. Its
experience was exactly the opposite. When work slowed down, Respondent moved its
employees to another part of its business. Respondent’s policy was to avoid layoffs. However,
according to Respondent’s Treasurer, David Fischer, it has laid off employees from other
portions of its business for lack of work; but, when there is additional work, it has recalled them.
That was not Respondent’s offer here. Its intent was, as Williams’ testimony show that he
understood, to terminate the three employees, upon their refusal of a transfer. Considering
Respondent’s union animus and knowledge of the union activities of the three employees, I

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conclude that the General Counsel has presented a prima facie case of Section 8(a)(3)
discrimination.

The burden then shifts to Respondent to show that it would have transferred these three
employees even in the absence of their union activities. Respondent did not meet that burden.
Respondent did not demonstrate the necessity of transferring these employees to Florida, a
transfer it knew Bridges would not accept. Nor did Respondent produce evidence to show,
assuming that work was not available, the reason that it did not offer the employees a layoff and
wait for work to pick up, as it assuredly did. Finally, Respondent did not even prove that it had
no work. Eirvin testified that Respondent probably had documents to demonstrate that the open
cut work dried up and that Nanney should have sheets that showed the open cut jobs that were
left. However, Respondent produced nothing. Nanney did not testify about the issue, nor did
Robinson, who, Eirvin alleged, told him that “the open cut work was all done.” Thus,
Respondent never proved that it had any need to transfer the three employees to Florida or to
lay them off. It did not meet its burden of proof under Wright Line, and I conclude that it violated
Section 8(a)(3) and (1) of the Act.

In so concluding, I reject Respondent’s contention that the three employees conspired to
give false testimony in this proceeding, that their testimony should be disregarded, and that they
should be disqualified from being granted any remedy. The Counsel for the General Counsel
asked Mack whether he had ever talked to Bridges and Williams about making up some reason
to give at the hearing in this proceeding that he or they did not go to Florida. Mack’s answer, on
which Respondent relies, was that he wanted to say “yes” but could not recall. That is certainly
not a definitive answer, as Respondent suggests. With their different recollections and different
reason for rejecting Respondent’s offer, all of which make at least some sense, I find the notion
of perjury in these circumstances quite impossible. Finally, the three employees are not on trial.
Although Respondent may question the reasons that Mack and Williams gave for not going to
Florida, that is not the point. The issue is why Respondent tried to transfer them there in the first
place.

Respondent discharged Shipp on September 16 for low production. There is no question
that his production was low at the time of the discharges of Farris, Schreit, and Schaffer; and I
have already used his low production, which was lower than Farris’s and Schaffer’s, to support
my finding that Respondent violated Section 8(a)(3) when it discharged the two higher-
producing employees. My finding that he had low production prior to April 15 does not mean that
he, anymore than Farris and Schaffer, should have been discharged. It means only that
Respondent’s justification for those discharges was false. The issue now becomes, as of
September 16, whether Respondent was again motivated by Shipp’s work performance, rather
than his union activities.

If Respondent had not known of Shipp’s union activities on April 15, it certainly learned
of them, despite Eirvin’s incredible denial that he heard Shipp’s name mentioned, during the first
two weeks of the hearing in this proceeding in August and the first week of September. Shipp
began to wear a “Union Yes” pin at work only on April 16, the day after the first three
discharges; and an argument could be made, as the General Counsel impliedly does, that
Respondent discharged Shipp to justify the discharge of Farris, Schreit, and Schaffer, knowing
that the General Counsel was relying on its failure to discharge Shipp. In any event, there is
more than ample evidence of Respondent’s knowledge of Shipp’s union activities by September
16, as well as its union animus.

I turn then to Respondent’s motivation. McElligott, the safety director, was the one who
actually fired Shipp. He told Shipp that he was told by upper management to release him that

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day for poor production and bad work habits. McElligott apparently knew nothing more of
Shipp’s work. He did not testify about Shipp, at all. Nanney, Shipp’s supervisor, said that he was
not the one who made the decision to fire Shipp. Eirvin testified that he terminated Shipp
because of “low production and being real low in production and not doing any better and not
improving.” That is essentially the same explanation that he used in justifying the discharges of
Farris and Schaffer, which I have discredited; and I do not believe the current one, either, on the
basis of Eirvin’s general lack of credibility. I, therefore, conclude that his reason was false and
that there was an unlawful reason that Eirvin was trying to conceal. That conclusion is
consistent with well-settled law that, when the asserted reason for an action fails to withstand
scrutiny, the Board may infer that there is another reason—an unlawful one which the employer
seeks to conceal—for the discipline. Shattuck Denn Mining Corp., 362 F.2d 466, 470 (9th Cir.
1966); Painting Co., 330 NLRB 1000, 1001 fn. 8 (2000).

My conclusion is independently supported here by Eirvin’s untruthful testimony, as
shown by the lack of consistency between his testimony and that of Nanney and Martychenko,
as well as the lack of credible corroboration of his testimony. The “not doing any better and not
improving” rationale for the discharge got Eirvin into trouble. As he did in justifying the
discharges of Farris and Schaffer, his thesis was that, once he was told by Nanney and
Martychenko in July of Shipp’s need to improve his “super low” production (conversations that
neither Nanney nor Martychenko corroborated), he told them, “Bring him up to speed, and put
some people with him.” Contrary to Eirvin’s testimony that Shipp was assigned laborers to help
with the digs and speed them up, Respondent’s records reveal that a laborer was assigned for
only two days, September 3 and 4. Contrary to Eirvin’s testimony that Shipp was given three
quality operators to improve his production, he could recall none but Benetatos, whom Eirvin
had earlier identified as one of his better operators and who started with Shipp on July 24. What
Eirvin did not say was that, when Benetatos started with Shipp, he, according to Nanney, whose
objectivity is suspect, may have had only a few days’ experience operating the Vermeer 1620
boring machine, which was being used on Shipp’s assignments. Shipp had to teach Benetatos
how to operate his machine.

When asked the reason that a more experienced operator had not been assigned to
Shipp, Nanney answered that he assigned Benetatos more to motivate Shipp, rather than to
give him an operator of more experience, and that he talked with Shipp about how Benetatos
was doing, and Shipp replied that he was doing fine, so he did not think that there was “a big
issue.” One would have thought that, instead of asking Shipp, the allegedly poor producer,
about how the fine operator was doing, Nanney would have asked Benetatos, the “better”
operator, whether Shipp was more motivated. Singularly curious about Respondent’s whole
story is the fact that Robinson evaluated Shipp in February and found him “[m]otivated,” that he
“tries hard,” and that he was a “Good Accurate Locator.” While the evaluation also indicated that
Shipp needed to improve his production, Robinson appeared to write that on many of his
evaluations and otherwise did not discuss production with the employees, particularly Shipp,
during his evaluations.

In fact, Respondent never warned Shipp about his production or told him that Benetatos
had been assigned to him to improve his production. Nanney testified that he knew two weeks
before Shipp’s termination that Shipp was not improving, but he never gave Shipp any kind of
warning. Not only that: he did not go even then to Eirvin to recommend Shipp’s discharge.
Instead, he waited. “I think I am pretty fair, and I was just trying to hang in there with him.” But,
at some point, according to Nanney, he either went to Eirvin’s office, or Eirvin called him into the
office, and Eirvin “had all of the numbers there, and it was right there on the paper. It was low.”
When asked what the documents were, Nanney quickly retracted, testifying that he did not know
that he had any. “[W]e were just discussing the low production.” Eirvin, however, originally

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claimed that he did not speak to anybody before deciding to terminate Shipp; later, he testified
that he did. In addition, Eirvin originally testified that he reviewed Shipp’s weekly production
reports and a spreadsheet that Martychenko had created; then he denied doing so.

Even as to Shipp’s low production, Respondent’s case was unconvincing; and it seemed
to me that Eirvin was making it up as he testified. Respondent keeps records of the footage that
each crew produces daily. But not all footage is equal, and certainly not for billing purposes. For
example, Respondent charges a per-foot price for boring based on the thickness of the conduit
and the type of soil. Respondent has a minimum requirement of 150 feet bored and on jobs less
than 150 feet charges the customer the difference. Where a boring crew bores through rock,
Respondent charges three times the normal boring price and credits its employees with three
times their footage for boring in rock or hand-trenching. Respondent also charges a flat high
kourly rate for time and material work, which is crew work other than boring and which, Eirvin
testified, “is also a factor of production.” Yet, Eirvin’s testimony made it unclear that he
considered Shipp’s time and material work, or his days off work for personal reasons, or his
assignment to restoration work.

The lying, the change of testimony, and the lack of credible corroboration persuade me
that the General Counsel has proved a prima facie case. Respondent did not overcome it by
showing that it would have terminated Shipp but for his union activities. Respondent has not
shown that it ever discharged a locator for poor production other than the discriminatees in this
proceeding. In addition, Eirvin testified that, if Shipp had bored 570 feet per week, he would not
have been terminated. However, the Counsel for the General Counsel’s brief contended that
Shipp averaged 570 gross feet per week during the seven weeks before he was fired.
Respondent did not contest those figures. I conclude that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Shipp.

The final discharge occurred on November 26. Eirvin terminated Wayne Schaffer
(Wayne), until then a highly rated laborer (“Wayne is A Very Hard Worker[.] Crew Leaders Want
Him on their Crew. He Gets Along with others & Does His Job To the Best of His Ability[.] He
Cares & I[s] A Very Good Employee For ADB.”), according to Respondent’s termination report,
for the following reasons:

Termination Due to Racial Harassment; Amplified & Displayed on Rear of
Personal Vehicle in St. Louis Parking Area; Having To Subject others to view
same as above mentioned. Does Not Constitute Freedom Of Speech Act.
(Photos available)

Respondent stipulated that Wayne was a known Union supporter. He was referred to
repeatedly in the earlier sessions of this proceeding, was at the time of his discharge one of only
three employees still employed who attended the Union’s first meeting, and was cited by Eirvin
on the second day of the hearing as “part of the union problem” at Respondent. Thus,
knowledge of Wayne’s union activities and Eirvin’s union animus is clear. Regarding motivation,
McElligott testified in great detail that employee Tony Williams, an African-American, had
complained that he found a bumper sticker or stickers with the Confederate flag on Wayne’s car
“very offensive.” McElligott did not tell the truth. Williams, called as a witness by the Counsel for
the General Counsel, denied that he said any such thing to McElligott. Rather, he testified that
he had never seen Schaffer’s bumper stickers and, therefore, never told McElligott that he had
found them offensive. This current employee had no reason to fabricate; and McElligott, one of
Respondent’s supervisors and agents, had ample reason.

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But somebody may have made a complaint about a bumper sticker at some time.12
Courtney West, a boring machine operator, had a “Heritage Not Hate” bumper sticker on his car
that included a Confederate flag since he was first hired on June 15. He was neither discharged
nor threatened with discipline. Instead, six months later, Ray Door, a project manager, called his
son, Jeff, another boring machine operator, about mid-November, and asked if West had any
bumper stickers on his car, specifically a Confederate bumper sticker. Jeff answered that he
had; and Ray said that Eirvin had told him that someone was complaining about that bumper
sticker and that Eirvin said that West needed to take it off his car.

That evening, Jeff told Wayne and West that Eirvin wanted West to remove the
Confederate bumper sticker; and the three were upset with what Eirvin had said, Wayne
believing that Eirvin violated West’s First Amendment right of freedom of speech. So, on
Saturday, November 22, to demonstrate support for West, Jeff and Wayne purchased their own
Confederate stickers and placed them on their cars.13 The following week, beginning November
24, Jeff drove his car directly to his jobsite, where it was in clear view of Robinson. In fact,
Respondent had photographs of Jeff’s vehicle with those bumper stickers. Thus, Respondent
was fully aware that the three had the very same sticker or similar “offensive” stickers.

Yet, only Wayne, who attended all the Union meetings, including the very first, was
discharged. The other two were not even reprimanded and removed their Confederate bumper
stickers only after Schaffer was terminated. What distinguishes Wayne was his active Union
partisanship, whereas West and Jeff were both hired well after the Union activity in April. West
never revealed his union sympathies, or lack thereof, to Respondent, and until November 21,
Jeff never wore a Union pin or told anyone about his feelings about the Union. On that day, he
put two Union bumper stickers on his car. On that day or the day after, Wayne also put a Union
bumper sticker on his car. On Friday, November 28, Ray warned Jeff that, if he and West [still]
had any Confederate-flag stickers on their cars, they should remove them because a guy was
just fired for it and they could get fired, too, because Respondent considered it racist. Ray also
told Jeff that he should get the Union stickers off his car because it was not appreciated, that he
could be put under a spotlight because of his involvement with the Union, and that there was the
possibility that he could get fired for some other reason, that Respondent would find a reason to
fire him, but it would lead back to his involvement with the Union. Jeff and West removed all the
Confederate-flag stickers that day; and Jeff removed the Union stickers on Monday, December
1.

The disparate treatment of Wayne is evident. Eirvin knew that West had the “offensive”
bumper sticker on his car. He told Ray, a supervisor, who then told Jeff to tell West to take it off.
Eirvin did not fire West or, later, Jeff. He fired Wayne, and an arguable reason that he did so
was Wayne’s earlier union activities. The General Counsel has proved a prima facie case.
McElligott’s lie about Tony Williams’ complaint permits an inference that there was another
unlawful reason for Wayne’s discharge. Shattuck Denn, supra.

12 A second person who was alleged to be irate was Tony Ausley, then one of Respondent’s project
managers, who wrote an e-mail, dated November 26, but did not testify. Another African American, a new
secretary named Toni, also allegedly complained, according to McElligott, but she also did not testify and
did not corroborate McElligott’s testimony.
13 Wayne’s were the same “Heritage Not Hate” sticker that West had and “Never Apologize for Being
White.” Jeff’s were: “Hey dumb ass, it’s lack of parenting not guns!,” “Confederate American,” and the
word “Rebel,” the latter two having the Confederate flag or written to resemble that flag.

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Respondent failed to demonstrate, as it had to do under Wright Line, that it would have
discharged Wayne absent his union activities. Eirvin, no longer employed by Respondent on
February 5, 2004, the day of the hearing of Case No. 14–CA–27677, the case dealing solely
with Wayne’s discharge, did not testify to his motivation. Respondent offered no excuse that
Eirvin was unavailable to testify, and the testimony of Respondent’s owner, Rusty Keeley,
shows that Respondent knew where Eirvin was. Accordingly, I cannot find that he had a lawful
motivation. Without Eirvin, Respondent could not meet its Wright Line burden.

The Request for a Bargaining Order

As noted above, the General Counsel requests a bargaining order, which requires an
examination of the Union’s majority status and the nature of Respondent’s unfair labor
practices. But, first, I consider the question of the appropriate unit. Respondent’s answer and its
counsel at the trial contended that the appropriate unit should consist of not only its St. Louis
facility, but also its two other offices in Kansas City, Missouri, and Jacksonville, Florida. That
opposition seems to have been abandoned because no mention of it is made in Respondent’s
briefs. Had it been raised, the law is clear that a proposed single facility unit is presumptively
appropriate unless it has been so effectively merged into a more comprehensive unit, or is so
functionally integrated with employees at another facility, that it has lost its separate identity. To
determine whether Respondent has successfully rebutted the presumption, the Board examines
such factors as: bargaining history; functional integration of operations; the similarity of skills,
functions, and working conditions of employees; central control of daily operations and labor
relations; interchange or transfers of employees among sites; and distance between sites. J&L
Plate, Inc., 310 NLRB 429 (1993).

Centralized control of some labor relations policies and procedures is not inconsistent
with a finding that there exists sufficient local autonomy to support the single location
presumption. D&L Transportation, 324 NLRB 160, 161 (1997). While the record reflects that
Eirvin had overall responsibility for Respondent’s three offices, that McElligott traveled among
the facilities, and that Respondent’s handbook applied to all employees (albeit it was not
distributed to all employees), there is also evidence of local autonomy. Among the facts that
demonstrate that there is “sufficient local autonomy to support the single location presumption,”
New Britain Transportation Co., 330 NLRB 397, 398 (1999); Rental Uniform Service, Inc., 330
NLRB 334, 335 (1999); local management at each facility is in charge of hiring, overtime,
vacations, and leaves; job vacancies are not posted at other facilities; employees do not travel
to other facilities for training; and the project managers at the three facilities do not participate in
management meetings with each other. In addition, the locations of the St. Louis, Kansas City,
and Jacksonville offices are sufficiently far apart to suggest that the single St. Louis facility unit
is appropriate. I so conclude.

The parties stipulated at the hearing that, if the unit limited only to St. Louis was found
appropriate unit, the unit shall be described as follows:

All employees employed by ADB Utility Contractors, Inc. at its St. Louis, Missouri
facility, EXCLUDING project managers, office clerical, managerial, professional
employees, over-the-road truck driver, guards and supervisors as defined in the
Act.

Because I have found the St. Louis unit appropriate, I conclude that the above constitutes a unit
which is appropriate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act. The General Counsel contends that, because the parties’ stipulation also listed the
employees who were appropriately included in the unit, and they were all field employees, the

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appropriate unit, notwithstanding the stipulation, should be described as including “all field
employees.” I will not do so, because there is no legal or factual basis in the record for me to
cancel or disregard the parties’ stipulation.

The General Counsel and Respondent’s counsel also stipulated that on April 15, the
Union obtained valid signed authorization cards from a majority of employees in the above-
described unit authorizing the Union to represent them in collective bargaining, but Respondent,
albeit perhaps not in haec verba, withdrew from that stipulation, when he claimed that the crew
leaders were supervisors. In any event, I am satisfied that, as of April 15, there were 59
employees in the unit and that 33 signed cards, giving the Union a majority.

Having found that the Union represented a majority of the employees, I turn to the
question of the need for a bargaining order. The Board wrote in Canter State Beef & Veal Co.,
330 NLRB 41, 43 (1999), enfd. in part 227 F.3d 817 (7th Cir. 2000):

Under Gissel, the Board will issue a bargaining order, absent an election,
in two categories of cases. The first category involves “exceptional cases”
marked by unfair labor practices so “outrageous” and “pervasive” that traditional
remedies cannot erase their coercive effects, thus rendering a fair election
impossible. The second category involves “less extraordinary cases marked by
less pervasive practices which nonetheless which nonetheless have a tendency
to undermine majority strength and impede the election processes.” In this
second category of cases, “the possibility of erasing the effects of past practices
and of ensuring a fair election . . . by the use of traditional remedies, though
present, is slight and . . . employee sentiments once expressed [by authorization]
cards would, on balance, be better protected by a bargaining order.” [Gissel, 395
U.S.] at 613-615.

Within two and one-half weeks of the Union’s first meeting on March 29, Eirvin delivered
his April 15 speech filled with antiunion rhetoric, and, more critically, unlawful threats of
termination of employees and closure of the facility and of the futility of selecting the Union as
the collective-bargaining representative. He unlawfully solicited employees who supported the
Union to quit and threatened the employees with discipline if they should wear pins showing
their support of the Union. Those threats were followed by correspondence to the employees,
as well of readings of the letters directly to the employees, containing similar threats of loss of
jobs and futility of selecting the Union and new threats of subcontracting the employees’ work
and reduction of their bonus money. Most of these unfair labor practices are “hallmark
violations,” having lasting effects on bargaining-unit employees that cannot be underestimated.
Garvey Marine, Inc., 328 NLRB 991, 994 (1999), enfd. 245 F.3d 819 (D.C. Cir. 2001); General
Fabrications Corp., 328 NLRB 1114 (1999), enfd. 222 F.3d 218 (6th Cir. 2000). His threats have
been recognized as an “insidious reminder to employees every time they come to work that any
effort on their part to improve their working conditions may be met with complete destruction of
their livelihood.” Electro-Voice, Inc., 320 NLRB 1094, 1095 (1996).

Eirvin’s speech also created the impression of surveillance, an impression that was
entirely accurate. His subsequent discharge of 9 of the 11 employees who attended the March
29 meeting was no accident. He knew exactly who was there. Three employees, two of whom
were leaders in the organizing efforts, were fired later on the same day that he gave his speech,
threatening the employees with termination. “The discharge of union adherents has long been
considered by the Board and the courts to be a ‘hallmark’ violation of the Act because of its
lasting effect on election conditions.” Center State Beef & Veal Co., 330 NLRB 41, 43 (1999);
NLRB v. Jamaica Towing, 632 F.2d 208, 212–213 (2d Cir. 1980).

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Respondent’s Section 8(a)(1) threats, spoken and written by Eirvin, were made to all the
bargaining-unit employees. The discharges, all of which had little or no justification and some of
which were concocted with lies and fake documents, continued throughout the year. They
directly affected not only the 13 union adherents in a unit of 59 employees, 22 percent of the
bargaining unit, who were discharged, but the remainder of the unit, which had to be aware that
those who continued to favor the Union were destined to lose their jobs, no matter that they did
nothing else but engage in activity protected by the Act. That high percentage warrants a
bargaining order, because the possibility of holding a fair election is minimal. Cogburn
Healthcare Center, 335 NLRB 1397, 1399 (2001); General Fabrications Corp., 328 NLRB at
1115.

In fact, word of the first three discharges was widely disseminated, and Eirvin obtained
the result that he sought. At the April 15 Union meeting, after Respondent discharged Farris,
Schaffer, and Schreit, employees expressed concern that they, too, might be terminated;
employees expressed fear that Respondent would close; and two employees were afraid that
they would be fired and refused to sign the request for recognition that many employees signed
that night. That the threats were made by Eirvin, Respondent’s highest-ranking official,
heightened the significance and impact of Respondent’s message. Aldworth Co., 338 NLRB
137, 149 (2002), enfd. sub nom. Dunkin’ Donuts Mid-Atlantic Distribution Center v. NLRB, 363
F.3d 437 (D.C. Cir. 2004); Cogburn Healthcare Center, 335 NLRB at 1400.

That Shipp and Wayne Schaffer were discharged during the course of the hearing
demonstrates that the unfair labor practices have continued and not diminished and warrant the
finding that a fair election is not possible. Eirvin wanted all employees to think that they would
lose their jobs if they voted for the Union and hoped that his speech would cause employees to
stop engaging in union activities. He got his wish. The Union’s organizing effort was gaining
momentum before April 15; after then, attendance at Union meetings declined significantly, the
only ones ultimately attending being the ones who were unlawfully discharged and two other
mainstays. Others who had supported the Union withdrew their support. The granting of a
normal cease-and-desist order will not erase the significantly pervasive and lasting deleterious
impact of Respondent’s unfair labor practices. The possibility of holding of a fair election is
improbable. I will recommend that a Gissel bargaining order issue.

Remedy

Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In addition to bargaining with the Union, Respondent, having
discriminatorily discharged employees, must offer them reinstatement, except for Ryan Adams
and Clarence Williams, who have previously been recalled, and make all of the discharged
employees whole for any loss of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). Because of Respondent’s egregious
misconduct, demonstrating a general disregard for the employees’ fundamental rights, I find it
necessary to issue a broad Order requiring it to cease and desist from infringing in any other
manner on rights guaranteed employees by Section 7 of the Act. Hickmott Foods, 242 NLRB
1357 (1979).

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On these findings of fact and conclusions of law and on the entire record,14 including my
observation of the witnesses as they testified and my consideration of the briefs and reply briefs
filed by the parties,15 I issue the following recommended16

ORDER

Respondent ADB Utility Contractors, Inc., St. Louis, Missouri, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Creating the impression among its employees that their union activities are under
surveillance.

(b) Impliedly threatening its employees with termination if they select Local 2,
International Brotherhood of Electrical Workers, AFL-CIO (Union) as their collective-bargaining
representative.

(c) Threatening its employees that it is futile to select the Union as their collective-
bargaining representative.

(d) Threatening or impliedly threatening its employees with closure of its St. Louis facility
if its employees select the Union as their collective-bargaining representative.

(e) Soliciting its employees who support the Union to quit their employment.

(f) Impliedly threatening its employees with discipline for wearing pins demonstrating
support for the Union.

(g) Impliedly threatening its employees that selecting the Union as their collective-
bargaining representative would result in the reduction or loss of their bonus and loss of their
employment.

(h) Threatening its employees that selecting the Union as their collective-bargaining
representative would result in the loss of their employment, insurance, and retirement plan.

(i) Threatening to subcontract more work if its employees select the Union as their
collective-bargaining representative.

14 The Counsel for the General Counsel moved to correct certain errors in the Official Transcript.
There being no opposition, the motion is granted; and the Official Transcript is amended accordingly.
15 Much of the Union’s briefs is devoted to a discussion of Respondent’s allegedly contrary position
and testimony in an earlier representation proceeding. I have not considered that discussion. Although an
attempt was made to stipulate the record into evidence in this proceeding, the Counsel for the General
Counsel would not join in the stipulation; and the record was not received. Respondent’s brief was, and
that showed that Respondent did not contend that any of the crew leaders were supervisors within the
meaning of Section 2(11). That is interesting, but not determinative.
16 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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(j) Interrogating its employees about their union activities and threatening its employees
with unspecified reprisals because of their union activities.

(k) Discharging its employees because of their union activities or sympathies and in
order to discourage their membership in the Union or any other labor organization.

(l) Refusing to recognize and bargain with the Union as the exclusive collective-
bargaining representative of its employees in the unit set forth below.

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

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

(a) On request, bargain with the Union as the exclusive representative of its employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:

All employees employed by ADB Utility Contractors, Inc. at its St. Louis, Missouri
facility, EXCLUDING project managers, office clerical, managerial, professional
employees, over-the-road truck driver, guards and supervisors as defined in the
Act.

(b) Within 14 days from the date of the Board’s Order, offer Jeremy Farris, Edgar
Schreit, Nathan Schaffer, Rodney Hanephin, Matt Sutton, Jason Lohman, Adam Williams, Matt
Bridges, Steve Mack, John Shipp, and Wayne Schaffer full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.

(c) Make Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney Hanephin, Matt Sutton,
Ryan Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt Bridges, Steve Mack, John
Shipp, and Wayne Schaffer whole for any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth in the Remedy section of the
Decision.

(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges of Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney
Hanephin, Matt Sutton, Ryan Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt
Bridges, Steve Mack, John Shipp, and Wayne Schaffer, and within 3 days thereafter notify
these employees in writing that this has been done and that the discharges will not be used
against them in any way.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

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(f) Within 14 days after service by the Region, post at its facility in St. Louis, Missouri,
copies of the attached Notice marked “Appendix.”17 Copies of the Notice, on forms provided by
the Regional Director for Region 14, after being signed by Respondent’s authorized
representative, shall be posted by Respondent and maintained for 60 consecutive days in
conspicuous places including all places where Notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that the Notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the Notice to
all current employees and former employees employed by Respondent at any time since April
15, 2003.

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

IT IS FURTHER ORDERED that the portions of the record that were placed under seal
will continue to be maintained under seal.

Dated, Washington, D.C. May 10, 2005

____________________
Benjamin Schlesinger
Administrative Law Judge
17 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.”
JD–35–05
St. Louis, MO

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT create the impression among our employees that their union activities are under
surveillance.

WE WILL NOT impliedly threaten our employees with termination if they select Local 2,
International Brotherhood of Electrical Workers, AFL-CIO (Union) as their collective-bargaining
representative.

WE WILL NOT threaten our employees that it is futile to select the Union as their collective-
bargaining representative.

WE WILL NOT threaten or impliedly threaten our employees with closure of our St. Louis facility
if our employees select the Union as their collective-bargaining representative.

WE WILL NOT solicit our employees who support the Union to quit their employment.

WE WILL NOT impliedly threaten our employees with discipline for wearing pins demonstrating
support for the Union.

WE WILL NOT impliedly threaten our employees that selecting the Union as their collective-
bargaining representative would result in the reduction or loss of their bonus and loss of their
employment.

WE WILL NOT threaten our employees that selecting the Union as their collective-bargaining
representative would result in the loss of their employment, insurance, and retirement plan.

WE WILL NOT threaten to subcontract more work if our employees select the Union as their
collective-bargaining representative.

WE WILL NOT interrogate our employees about their union activities and threatening our
employees with unspecified reprisals because of their union activities.

WE WILL NOT discharge our employees because of their union activities or sympathies and in
order to discourage their membership in the Union or any other labor organization.
JD–35–05
St. Louis, MO

WE WILL NOT refuse to recognize and bargain with the Union as the exclusive collective-
bargaining representative of our employees in the unit set forth below.

WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL on request, bargain with the Union as the exclusive representative of our employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:

All employees employed by ADB Utility Contractors, Inc. at its St. Louis, Missouri
facility, EXCLUDING project managers, office clerical, managerial, professional
employees, over-the-road truck driver, guards and supervisors as defined in the
Act.

WE WILL within 14 days from the date of the Board’s Order, offer Jeremy Farris, Edgar Schreit,
Nathan Schaffer, Rodney Hanephin, Matt Sutton, Jason Lohman, Adam Williams, Matt Bridges,
Steve Mack, John Shipp, and Wayne Schaffer full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.

WE WILL make Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney Hanephin, Matt Sutton,
Ryan Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt Bridges, Steve Mack, John
Shipp, and Wayne Schaffer whole for any loss of earnings and other benefits suffered as a result
of the discrimination against them, with interest.

WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges of Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney
Hanephin, Matt Sutton, Ryan Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt
Bridges, Steve Mack, John Shipp, and Wayne Schaffer, and within 3 days thereafter notify
these employees in writing that this has been done and that the discharges will not be used
against them in any way.
ADB UTILITY CONTRACTORS, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1222 Spruce Street, Room 8.302, Saint Louis, MO 63103-2829
(314) 539-7770, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (314) 539-7780.