Amperage Electric

National Labor Relations Board - Board Decisions

Jan 4, 1991

301 N.L.R.B. 5 (N.L.R.B. 1991)

5
301 NLRB No. 2
AMPERAGE ELECTRIC
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
In adopting the judge’s finding that employee Kary Cooper is not a super-
visor under Sec. 2(11) of the Act, we find it unnecessary to rely on the con-
tents of Cooper’s personnel folder.
Amperage Electric, Inc. and Local Union No. 948,
International Brotherhood of Electrical Work-
ers, AFL–CIO. Cases 7–CA–29852, 7–CA–
29932, and 7–CA–29989
January 4, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On July 31, 1990, Administrative Law Judge Frank
H. Itkin issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Amperage Electric, Inc.,
Owosso, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
A. Bradley Howell, Esq., for the General Counsel.
Andrew T. Baran, Esq., for the Respondent Employer.
DECISION
FRANK H. ITKIN, Administrative Law Judge. Unfair labor
practice charges were filed in the above consolidated cases
on October 30, November 16, and December 5, 1989. An
amended consolidated complaint issued on January 4, 1990.
General Counsel alleges that Respondent Employer, in op-
posing Charging Party Union’s organizational drive, violated
Section 8(a)(1) of the National Labor Relations Act by
threatening employees with discharge if the employees se-
lected the Union as their collective-bargaining representative;
coercively interrogating an employee about his union sym-
pathies; threatening employees that it would close its facility
if they selected the Union as their collective-bargaining rep-
resentative; telling employees that it would be futile for them
to select the Union as their collective-bargaining representa-
tive because the Employer would not sign a union contract;
threatening employees with discharge if they engaged in
strikes on behalf of the Union; and attempting to promote
employees Dennis Morrice and Kary Cooper out of the unit
because of the Union’s organizational campaign. General
Counsel further alleges that Respondent Employer violated
Section 8(a)(1) and (3) of the Act by ceasing to permit em-
ployee Morrice to have certain Saturdays off; implementing
new rules which no longer permitted employees to park the
Employer’s vehicles at their homes overnight and to obtain
their paychecks prior to 5 p.m. on Fridays; ceasing its prac-
tice of paying for the repair and replacement of employees’
tools; laying off unit employees following the Board-con-
ducted representation election; and discharging employees
Dennis Morrice and Gary Presley, all because of the employ-
ees’ activities on behalf of and in support of the Union. Gen-
eral Counsel further alleges that Respondent Employer also
violated Section 8(a)(1) and (3) of the Act by permanently
replacing unfair labor practice striker Kary Cooper. Respond-
ent Employer denies violating the Act as alleged. Respondent
Employer alleges, inter alia, that Morrice and Cooper are su-
pervisors beyond the protection of the Act and that employee
Presley quit his job.
A hearing was held on the issues raised on March 7 and
8, 1990, in Owosso, Michigan. On the entire record, includ-
ing my observation of the demeanor of the witnesses, I make
the following.
FINDINGS OF FACT
Respondent Employer is engaged in the business of elec-
trical repair and installation in Owosso, Michigan, and is ad-
mittedly an employer engaged in commerce as alleged.
Charging Party Union is admittedly a labor organization as
alleged. On July 7, 1989, the Union filed a petition with the
Board’s Regional Director seeking to represent a unit con-
sisting of the Employer’s full-time and regular part-time em-
ployees. A Board-conducted representation election was held
on September 8, 1989; there were approximately 11 eligible
voters; 9 votes were cast for the Union and 2 were cast
against it; and there were also 2 challenged ballots. On Sep-
tember 18, 1989, the Regional Director certified the Union
as exclusive bargaining agent of the unit employees. The evi-
dence pertaining to the Employer’s conduct during the
Union’s organizational effort and the related contentions of
the parties is summarized below.
Dennis Morrice, an alleged discriminatee whose super-
visory status has been placed in issue, testified that he started
working for Respondent Employer as an apprentice elec-
trician in June 1985; he became a journeyman electrician in
1987 ‘‘working out in the field’’; and he was discharged on
October 19, 1989. Morrice recalled that the Union’s organi-
zational campaign started during the summer of 1989; he
then attended about three or four union meetings; and he
signed a union card about August 1989. Morrice further re-
called that during late June 1989, Respondent’s owner, Kent
Telesz, had his first conversation with Morrice about the
Union. According to Morrice,
He [Telesz] said that he heard that the Union was try-
ing to come in, that if the Union did come in he would
get rid of everybody that was going to vote for it, and
if I wanted, if I went [for the Union], he would get rid
of me also.
On this or possibly another later occasion, Telesz also ques-
tioned Morrice about ‘‘how’’ he ‘‘felt’’ and ‘‘stood on the
Union.’’ Morrice responded that he ‘‘didn’t know’’—he
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Morrice also recalled that in the past the Employer had permitted employ-
ees to drive the Employer’s vans home and park them there overnight. In Au-
gust the Employer changed this policy and required the vans to be parked at
the shop. In addition, in the past the Employer had repaired or replaced em-
ployees’ tools which were damaged or broken at work. Morrice asserted that
during the pertinent sequence he took his broken drill to the office to be fixed
and it ‘‘just stayed there.’’
2 The Union and the Employer had stipulated in writing that both Morrice
and Cooper ‘‘have the indicia of supervisors as defined in Section 2(11) of
the Act’’ because they ‘‘each exercise the authority . . . to hire and discharge
employees and/or effectively recommend such actions’’ and ‘‘to responsibly
assign work and direct employees in the performance of their work by the ex-
ercising of independent judgment involving said responsibilities’’; they ‘‘pos-
sess supervisory authority’’; and therefore they are ‘‘not eligible to vote.’’ See
G.C. Exh. 9.
would ‘‘have to look at both sides.’’ On another occasion,
Telesz warned Morrice that he ‘‘would close up the shop and
open up under another name . . . if the Union came in.’’ All
of the above conversations with Telesz were in the Employ-
er’s office and not witnessed by any other personnel. In addi-
tion, Morrice did not relate any of Telesz’ statements, as
summarized above, to other personnel.
Morrice testified that previously, as a consequence of his
divorce in 1988, he had been granted visitation rights for his
children for Tuesday and Thursday evenings and every other
weekend. Telesz had agreed that ‘‘we’ll make out an ar-
rangement where you can see your kids every other Satur-
day, and Tuesday and Thursday evenings you can be out of
work on time . . . five o’clock.’’ Telesz had explained that
there might be a ‘‘possibility’’ Morrice would have to work
on a Saturday or Tuesday and Thursday evening—Telesz
‘‘would try to accommodate’’ Morrice ‘‘if he could.’’ Later,
however, during the summer of 1989, according to Morrice,
Telesz
told me that he couldn’t treat me any different than any
of the other guys because of the Union coming in, and
after that I started working Saturday.
Morrice was nevertheless ‘‘still allowed to leave Tuesdays
and Thursdays at five.’’1
On September 8, 1989, the Amperage employees voted 9
to 2 for union representation. Morrice, as well as alleged
discriminatee Kary Cooper, did not vote in the election.2
Later that same day, Respondent Employer notified all em-
ployees in writing (G.C. Exh. 3):
. . . effective 9/8/89 Amperage Electric will be closing
their doors for inventory & reevaluation of the business
. . . all field staff excluding management will be given
time off during this period beginning 9/8/89 at 5 p.m.
. . . the length or time frame is indefinite . . . keys &
Company tools must be turned in tonight before checks
will be issued . . . personal items should be removed
from premises . . . [and] by affixing his signature
below [the employee] is stating that he has done the
above and has no claim against Amperage.
Morrice and Cooper were not included in this layoff. Morrice
testified that he was instructed to ‘‘go out and stand beside
the vans to watch the guys get the tools off’’ their vans ‘‘so
they could go home.’’ See also General Counsel Exhibit’s
19, where the Union charged that ‘‘the only 2 employees that
were not discharged are the supervisors who are now doing
work described in the bargaining unit.’’
Three days later, on September 11, Morrice met with laid-
off employees at a donut shop. Telesz entered the shop. The
laid-off workers left. The two then discussed work; Morrice
apprised Telesz that ‘‘I can’t pick up the slack for the 11
guys you laid-off’’ or ‘‘work 24 hours a day’’; Telesz
agreed. Morrice added: ‘‘I wouldn’t cross a picket line if
they [threw] a picket line up.’’ Telesz responded: ‘‘Well then
you are for the Union.’’ Morrice replied: ‘‘Yeah I guess I
am.’’
Morrice last worked for the Employer on Thursday Octo-
ber 19, 1989. He was working with an apprentice at the Lan-
sing Car Wash ‘‘doing the wiring to hook it up.’’ During
that afternoon, Telesz telephoned Morrice at Lansing and in-
structed him to go ‘‘right away’’ to ‘‘Arby’s in Melvindale’’
where they ‘‘had an exhaust problem and couldn’t open up.’’
Morrice had previously worked on the Arby’s job and was
familiar with it. Morrice complained to Telesz that he
‘‘couldn’t make it down there and back’’ by 5 p.m. and keep
his visitation with his children. Telesz insisted that he ‘‘hurry
and get going.’’ Morrice telephoned Telesz shortly thereafter
and explained that he did not have an extension ladder nec-
essary for the Arby’s job. Telesz instructed Morrice to buy
one at a nearby hardware store. Morrice asked Telesz about
other personnel who assertedly could take this emergency
call, naming Kary Cooper and Kevin Newberry. Telesz re-
plied, inter alia, that Newberry, an apprentice, was working
in Owosso and Cooper was working in Sterling Heights and
he could not ‘‘get a hold of him’’ and he does not ‘‘know
the job.’’ Morrice then refused to go on the assignment, and
was instructed by Telesz to speak with Telesz when he re-
turned to the office. Later that day, shortly before 5 p.m.,
Telesz gave Morrice a notice that he had been fired for in-
subordination—not following directions. Morrice insisted that
‘‘all of us’’ have ‘‘turned down’’ jobs ‘‘at one time or an-
other’’ and he was unaware of anyone being terminated for
this reason.
Morrice was questioned at length about his alleged super-
visory status. He generally denied exercising any of the indi-
cia of supervision as recited in Section 2(11) of the Act. He
insisted that for the most part he served as a journeyman
electrician; punched a timeclock; got paid for overtime;
would work with a crew of one or two apprentices and tell
them ‘‘what job to do’’ because of his experience and his
status as a licensed electrician; and would answer ‘‘ques-
tions’’ for other journeymen but did not have ‘‘to explain to
them how to run the pipe’’ or ‘‘circuits.’’ He claimed that
in July 1989 Telesz said that he ‘‘could give [Morrice] a
raise if I put you on supervision’’ and Morrice agreed and
received a raise. He claimed that his duties remained the
same and he was never instructed what his new duties would
be. He was also told about this same time that Kary Cooper
‘‘was classified as a supervisor.’’ Elsewhere, he acknowl-
edged that he had been hired as an apprentice in 1985 at an
hourly rate of $8 which was considerably more than the
usual apprentice rate; Telesz told him 6 months later that
‘‘I’m his right hand man’’; he was raised from $9 to $10 an
hour in November 1987 when he became licensed; he was
later raised to $12.25 an hour; he was asked to be a ‘‘super-
visor’’ and run the office when Telesz went on vacation or
when he, Morrice, was working in the office for a number
of weeks following an injury; new apprentices would be as-
signed to work with him and he would tell Telesz ‘‘if they
7AMPERAGE ELECTRIC
3 Cooper also recalled that during the Union’s campaign the Employer
changed its policy of allowing employees to drive their vans home during the
evening and to pick up their paychecks before 5 p.m. on Fridays.
were worthwhile’’; he was ‘‘often’’ placed in charge of mul-
tiple crews, consisting of journeymen and apprentices, at
those sites where more than one crew was working; he made
written evaluations of employees; his personnel file has listed
him as a supervisor since 1987 when he received his license;
and in 1987:
I was told to be a supervisor . . . I was told . . . I was
his [Telesz’] right hand man [Tr. p. 100].
Morrice acknowledged signing Respondent’s Exhibit 1, an
‘‘employee warning report,’’ in early 1988 as a ‘‘super-
visor.’’ The report recites, inter alia:
Since [the named employee] has worked for Amperage
he has consistently shown no initiative and lack of pro-
duction. He has worked with 3 different crew leaders
thus far. We will work [him] with another crew leader
. . . for a period of 5 working days, if there is not sub-
stantial improvement we will terminate his employment.
Morrice also acknowledged repeatedly signing detailed train-
ee evaluations as a ‘‘supervisor’’ in late 1987. See Respond-
ent’s Exhibits 2, 3, and 4. In addition, Morrice acknowledged
that, with respect to layoffs during the summer of 1989, ‘‘I
may have suggested . . . if things were slow and people
weren’t working out that they [the Employer] thin out.’’
And, Morrice acknowledged that he was present when Telesz
‘‘told employees’’ that ‘‘I was his right hand man, his num-
ber one man.’’
Kary Cooper, another alleged discriminatee whose super-
visory status has been placed in issue, testified that he
worked for the Employer for about 5 months in 1984 and
then quit; he was hired again in November 1986 and worked
until his discharge on November 1, 1989; he held a master
electrician’s license; and he was paid $12.25 an hour,
punched a timeclock, had medical insurance coverage, was
given 1 week’s paid vacation with paid holidays and 3 per-
sonal days off. Cooper contacted the Union in June 1989 to
enlist its support in organizing the Employer’s shop. He as-
sembled the names and addresses of the employees for the
Union, attended union meetings and signed a union member-
ship card.
Cooper recalled that shortly after the first union meeting
in June, Owner Kent Telesz addressed ‘‘all the field work-
ers’’ and ‘‘electricians,’’ as follows:
Kent told us that he knew we were trying to get the
Union in and we were making a mistake. Kent said that
he didn’t think the Union was a good idea and he
wouldn’t sign a contract. And he thought that if we did
vote the Union in he’d probably have to close the doors
and go out of business.
Cooper recalled that about 3 weeks before the September
8 election, Telesz again spoke to the employees at a meeting,
as follows:
Kent told us that he was losing business because of the
Union drive. He wouldn’t sign the contract . . . he
thought that we were making a mistake . . . he had to
close the doors if we voted the Union in and go out
of business. He also said that there was a lot that we
didn’t understand about the unions . . . he couldn’t tell
us but if we wanted to go to him on a personal basis,
one to one, he could tell us. It was also the first time
I [Cooper] was informed by Kent that I was considered
a supervisor . . . and I wouldn’t vote.
Cooper explained that earlier that month Telesz had dis-
cussed with him ‘‘the possibility’’ of making him a super-
visor and asked if he was ‘‘interested.’’ Cooper then re-
sponded: ‘‘I really didn’t know what I wanted because of
what was going on with the Union drive and everything and
I’d let him know.’’ Later, at the above meeting, Telesz sud-
denly apprised Cooper that he was ‘‘considered a super-
visor’’ and consequently would not vote in the election.
Cooper recalled that about a week before the election
Telesz made the following statements to him in the plant
parking lot:
[Telesz] told me he couldn’t understand why everyone
was trying to get the Union in . . . he thought we were
kicking him while he was down because his business
had slowed down a bit during the summer and we were
just working 40 hours. And he said to me that he could
fire Dennis Morrice and myself because we were super-
visors but he couldn’t fire anyone else at the time.3
Cooper, as noted, was not permitted to vote in the elec-
tion. Following the election on September 8, Telesz stated to
him:
[Telesz] told me he was taken [by] surprise by the elec-
tion results and he was going to reevaluate what he was
going to do with his Company. He said the next week
everyone would not be working except for Kent, Jon
Harris [the Employer’s estimator], Morrice and [Coo-
per].
Thereafter, On October 19, Cooper was working with an
assistant at the Sterling Heights Car Wash. About 2:30 p.m.
that day Cooper telephoned Telesz at the office. Telesz then
apprised Cooper that ‘‘he’d been trying to get ahold of [Coo-
per] since noon because he wanted [Cooper] to run a service
call at the Arby’s in Melvindale’’; Telesz ‘‘said he couldn’t
get ahold of Dennis [Morrice] to run the call because Dennis
had custody of his boys that evening and so he asked me if
I’d run down and do it.’’ Cooper agreed. Cooper was actu-
ally closer to the Arby’s job than Morrice. The Arby’s job
took only about 15 minutes and Cooper returned to the shop
about 5:30 p.m. that evening. Cooper noted that in the past
he had been asked to take a call and had declined. Cooper
explained:
Well, every once in awhile Kent Telesz . . . would ask
at the end of the day perhaps when we just got in if
we’d like to go out [on] a call . . . and if you’d say
I can’t tonight then generally he’d say all right and
have someone else call it . . . it generally wasn’t a
problem . . . it didn’t happen very often.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Richard Beamish, the Union’s assistant business manager, testified that the
‘‘purpose of the strike’’ ‘‘was over the dismissal of Dennis Morrice’’ and
picket signs said that the employees were ‘‘on strike because of unfair labor
practice [sic].’’ Beamish had notified the unit employees that ‘‘we were going
to have an unfair labor practice strike starting . . . on October 30.’’
5 Cooper, in his prehearing affidavit, assertedly had said that ‘‘on a couple
of occasions [he] had recommended that Kent Telesz hire friends . . . and
[Telesz] had interviewed them but they had turned down the job.’’ Cooper ex-
plained that ‘‘I didn’t come to Telesz and recommend someone’’; Cooper
would tell a friend that ‘‘we’re looking for electricians . . . why don’t you
go to the office and see if you can get an application’’; Telesz later inter-
viewed one such friend and hired him but the friend declined the job.
6 John Bond, the Union’s business manager, explained that at the time he
signed the ‘‘stipulation,’’ G.C. Exh. 9, ‘‘there was a question on who could
vote and who could not vote’’; ‘‘we had the support we needed to win the
election’’; and ‘‘so we just went ahead and signed the stipulation just to move
things along and keep the September 8 [election] date at that particular time.’’
Bond added: ‘‘I didn’t believe that they were supervisors’’—‘‘I felt that it
wasn’t going to hurt our interest at that particular time to exclude 2 people
from the voting procedure.’’
7 In addition, Presley testified that the Employer, during the Union’s organi-
zational campaign, also changed its policy with respect to allowing employees
to pick up their paychecks before 5 p.m. on Fridays and with respect to replac-
ing or repairing broken, stolen, or worn-out tools. Presley acknowledged, how-
ever, that the Employer in fact repaired a broken tool of his months later after
he had complained.
Morrice, as noted, was fired on October 19. Employee
Gary Presley, discussed below, was allegedly terminated
shortly thereafter. And, on October 27, the Union notified the
Employer that the unit employees would be ‘‘on an unfair
labor practice strike . . . effective October 30.’’ Later, on
October 31, the Union notified the Employer that the em-
ployees ‘‘will unconditionally return to work effective No-
vember 1.’’ (See G.C. Exhs. 7 and 8.)4 Cooper joined this
strike and on November 1 was notified by the Employer
(G.C. Exh. 6):
On Monday October 30 . . . you left your job without
prior notice [and] joined employees on strike, as a re-
sult we have hired a supervisor to replace you.
Cooper was questioned at length about his alleged super-
visory status. Cooper testified that his duties did not change
after he was informed by Telesz during August that he was
‘‘considered’’ a supervisor; he was not then told that he had
any new authority; and he denied exercising any of the indi-
cia of supervision as set forth in Section 2(11) of the Act.
Cooper explained his duties, as follows:
I was told in the morning what the job was to go to.
And either I would be informed by Kent in the morning
or Jon Harris, the estimator, what the job consisted of,
what needed to be done, or I’d meet on the job site
with the construction supervisor or home owner, or if
they had a blueprint there [I] would go over the blue-
print, or if there was an occasion where we’d done a
job before and were familiar with it . . . go over the
layout of the job, find out what had to be done and in-
struct the apprentice or whoever was working with me
at the time what his duties were.
Cooper noted that if his apprentice on such a job did not per-
form the work to his satisfaction, ‘‘I’d ask him to change
it’’; however, Cooper was never told he had the authority to
discipline and never disciplined an apprentice. Cooper added
that he was never told that he had the authority to hire or
recommend anyone for hiring; the authority to lay off or rec-
ommend anyone for layoff; the authority to fire or rec-
ommend anyone for firing; the authority to discipline or rec-
ommend anyone for discipline; the authority to grant a wage
increase; the authority to select the jobsite an apprentice went
to; and the authority to grant time off, permit personnel to
come in late or leave early.
Cooper explained that a crew would ‘‘generally’’ consist
of two persons, himself and an apprentice. There were ‘‘oc-
casions’’ when there would be multiple crews at a job and
on such occasions he, as a crew chief, ‘‘would be telling a
number of people what to do, not just [his] apprentice.’’
Cooper noted, however, that he had served on several mul-
tiple crew jobs when another licensed electrician, other than
Morrice or himself, were the crew chiefs. Thus, for example,
John Vyskocil was a crew chief on a particular job, ‘‘in
charge of the job’’; and Vyskocil ‘‘let [Cooper] know what
to do and what had to be done.’’ Moreover, according to
Cooper, as a crew chief, he still ‘‘would call the office’’ to
‘‘get permission’’ if a customer wanted ‘‘a change’’ in the
job and ‘‘if they wanted a price’’; he was never told that he
had the authority to quote a price for changed or additional
work; he would also notify the office when the customer
‘‘wanted people to work over’’ and ‘‘get permission.’’5 Fi-
nally, Cooper explained why the Union and the Employer
had stipulated to his alleged ‘‘supervisory’’ status—it was
more or less a compromise that Dennis [Morrice] and [Coo-
per] were not to be included in the election so that we could
get the election on a little earlier . . . [and] didn’t have to
have any more delays.’’6
Gary Presley, also an alleged discriminatee, testified that
he was employed by the Company as a master electrician
from November 1987 until October 23, 1989, when he was
allegedly fired. Presley first became aware of the Union’s or-
ganizational effort in June 1989; he attended union meetings
and signed a union card. Presley recalled Telesz repeatedly
telling the employees during the organizational drive:
he [Telesz] understood we had been to a Union meeting
. . . he couldn’t afford to go Union . . . if we voted
in a Union he would have to close the doors . . . he
couldn’t afford a Union . . . we would be out of a job
. . . he would close.
On September 8 Presley and his coworkers voted in the
Board-conducted representation election. He and his cowork-
ers were suddenly laid off later that day and required to sign
copies of General Counsel’s Exhibit 3, supra. He was re-
called on September 11 and resumed work on the following
day, September 12.7
Presley testified that shortly before quitting time on Thurs-
day October 19, Morrice apprised Presley that he, Morrice,
had been fired. Presley was admittedly angered and upset. He
then went to punch out and broke the timeclock because he
apparently hit it ‘‘too hard.’’ Telesz came out of the office.
Presley told Telesz, inter alia, ‘‘you just fired Dennis for no
reason’’; Telesz explained why he had fired Morrice; Presley
responded: ‘‘that’s a bunch of shit . . . you’re just looking
for an excuse to fire Dennis because of our Union activi-
ties’’; ‘‘I was tired of the bullshit’’; ‘‘I was tired of this
fuckin place’’; and
9AMPERAGE ELECTRIC
8 In addition to the above testimony, Bernie Andres testified that he worked
for Respondent Employer from July 1986 until November 13, 1989, when he
quit; he attended union meetings; he witnessed Telesz telling the employees
before the election ‘‘if we were to go Union he wouldn’t be able to afford
the fees and otherwise he’d have to close the doors’’; he was laid off after
the election; and he witnessed the Telesz-Presley confrontation on October 19.
Andres recalled:
As I entered the warehouse . . . Kent Telesz and Dennis Morrice [were]
exiting Kent’s office. And at this time Kent asked for Dennis’ time card
and Dennis said fine. And then Gary Presley spoke up and said this was
a bunch of bullshit and Kent asked what. And Gary told him the firing
of Dennis . . . and we would have to work Saturday and that’s what
Gary got all upset about. And at this time Gary broke the timeclock . . .
by punching it too hard. I believe Kent stated to write Gary up . . . and
Gary said fine, you might as well write me up too.
Presley left the garage. Andres never heard Presley say that he ‘‘quit’’ during
the above exchange.
William Burman also testified that he has been employed as an electrician
by Respondent Employer for over 2 years; he voted in the election; he was
later laid off and then recalled; and he too witnessed the Telesz-Presley con-
frontation. Presley was upset and broke the timeclock when he punched out
on October 19. Presley then said to Telesz ‘‘I ought to turn my card in too’’
and Telesz responded: ‘‘do what you think you got to do.’’ Burman did not
hear Presley say that he ‘‘quit.’’
Jeff Bower also testified that he was employed by Respondent Employer as
an apprentice during the pertinent time period; he voted in the election, was
laid off and then recalled; and he too witnessed the Telesz-Presley confronta-
tion. Bower recalled that at closing time on Thursday, October 19 Presley
broke the timeclock, told Telesz that ‘‘he was tired of all this bullshit . . .
the things about Dennis Morrice’’ and his termination, and said: ‘‘you might
as well terminate me too.’’ Bower subsequently witnessed Presley ask Telesz
on Monday, October 23, ‘‘if there was any work for him’’ and Telesz replied:
‘‘you quit.’’ Presley insisted that he did not ‘‘quit’’ and again asked for work
and was refused.
David Boyd also testified that he too was employed by Respondent Em-
ployer during the pertinent time period and later quit by turning in his ‘‘beep-
er’’ and signing an ‘‘affidavit . . . saying that I resigned.’’ Boyd witnessed
[Presley] say to Telesz on October 19, ‘‘he [Telesz] might as well give me
[Presley] my walking papers.’’ Boyd could not ‘‘remember’’ Presley saying
that he ‘‘quit’’ or Telesz saying that he was ‘‘fired.’’
9 Kevin Newberry, employed by Respondent, testified on behalf of the Em-
ployer. Newberry generally denied ever hearing Telesz say that ‘‘he would
close the Company if the employees voted for the Union’’ or ‘‘he would never
sign a Union contract.’’ Newberry assertedly asked Telesz ‘‘what he would
do if the employees voted for a Union’’ and Telesz responded that ‘‘his law-
yers wouldn’t allow him to talk about it.’’
10 Telesz, when questioned further about destroying the accountant’s ‘‘pre-
liminary report,’’ asserted:
Well it wasn’t a hundred percent accurate, this [the later report] is a hun-
dred percent accurate, so you know we wouldn’t keep something later on
that might be misinterpreted or used. The accountant did not testify in
this proceeding.
I ought to just go out to the truck, get my time card
and turn the damn thing in.
Telesz replied: ‘‘do what you got to do.’’ Presley later told
Morrice, who was in the parking lot cleaning his tools,
‘‘Kent’s probably going to fire me or after what I said . . .
he might even think I quit.’’ Presley and Morrice then
‘‘walked away.’’ Presley, however, did not turn in his time-
card.
Presley next testified that he met with his coworkers later
that day; ‘‘talked about . . . Dennis . . . being fired’’; and
decided ‘‘not going to work the next day and protesting what
happened.’’ Presley did not work on Friday, October 20. In-
stead, he assertedly had telephoned the office about 6 a.m.
earlier that day and ‘‘told the answering service that [he] was
going to take a personal day.’’ Thereafter, on Monday, Octo-
ber 23, Presley attempted to report for work and had the fol-
lowing exchange with Telesz:
I [Presley] was there to work . . . he [Telesz] wanted
to know why . . . because I had said on Thursday that
I was going to quit . . . he said I used some terrible
language on Thursday . . . and I said yes I was very
upset with you and probably did . . . [and I] meant
every word.
Telesz maintained that Presley had quit; Presley maintained
that he ‘‘didn’t quit’’; and Telesz said he would discuss the
matter with his attorney. Telesz thereafter continued to refuse
to permit Presley to resume working there.
John Vyskocil testified that he has worked for Respondent
Employer for over 2 years; he is a journeyman electrician
earning $13 an hour; he voted in the election; he was laid
off that day and was later recalled; and he too witnessed the
Telesz-Presley confrontation on October 19. Morrice had just
been fired ‘‘and nobody was really too happy about it’’; and
then the thing with Gary got started. Well all I
[Vyskocil] heard was what Gary said. I heard him say
if that’s the way it’s gonna be I might as well turn in
my card too.
Vyskocil could not remember whether Presley used the word
‘‘quit’’ and did not see him turn in his timecard.8
Kent Telesz, an owner of Respondent Employer, generally
denied the alleged acts of interference, restraint, coercion,
and discrimination attributed to him by the above witnesses.
He acknowledged meeting with his employees during the
campaign and telling them that he ‘‘didn’t want a Union’’;
he could not at one point ‘‘recall’’ asking ‘‘why they needed
a Union’’; he also could not ‘‘recall’’ stating that he
‘‘couldn’t afford to pay Union wages’’; he spoke with
Morrice about the available ‘‘possibilities’’ if the employees
voted for the Union which included ‘‘anything from signing
the contract [to] closing the doors’’; and he testified:
Q. Did you specifically mention closing the doors as
a possibility that you were considering?
A. I told them I didn’t know what I was going to
do.
Elsewhere, he denied telling his ‘‘people [that he] could
not afford to pay the wage rates’’ under the union contract
because he ‘‘didn’t know exactly what the wage rates were.9
Telesz admittedly changed the Employer’s policy during
the Union’s campaign with respect to allowing employees to
park the Employer’s vans at their homes overnight. He
claimed that he made this change because he had received
a ‘‘preliminary report’’ from his accountant showing that
‘‘we were losing money.’’ This ‘‘preliminary report,’’ ac-
cording to Telesz, has since been ‘‘destroyed’’ and is there-
fore no longer available. Instead, Telesz proffered reports of
his accountant received by him after the events in question.
(See R. Exhs. 23 and 24).10 In addition, Telesz insisted that
there ‘‘wasn’t really any change regarding’’ the Employer’s
policy of distributing paychecks to the employees during the
Union’s campaign. Elsewhere, he acknowledged posting a
notice on July 18, during the campaign, stating that ‘‘effec-
tive immediately no paychecks will be given out before 5
p.m. or to anyone except said employee without one days no-
tice in writing,’’ and requiring all personnel to initial this no-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Telesz also insisted that the Employer’s policy was to replace or repair
employee tools which were not ‘‘mishandled’’ and this policy has not been
‘‘changed.’’ He cited bills for such repairs or replacements which the Em-
ployer has since paid. See R. Exhs. 26–29. With respect to R. Exh. 29, Telesz
acknowledged:
That’s Gary Presley’s clamp-on-meter. Actually the Union brought it to
my attention and I went ahead and asked Gary for it, Gary gave it to
me and I replaced it even though it was a mishandled tool, it wasn’t worn
out.
The invoice date for R. Exh. 29 is after Presley’s termination of employment.
See also the testimony of Linda Telesz, part-owner and wife of Kent Telesz,
pertaining to the Employer’s policy of paying employees before 5 p.m. on Fri-
days and compensating them for unused personal days when they are termi-
nated or quit (Tr. 425 to 428 and G.C. Exh. 5).
12 The attorney for Telesz involved in the above sequence did not testify
or appear at these hearings.
tice. (See R. Exh. 25.) He claimed that the ‘‘major reason’’
for this ‘‘change’’ was ‘‘poor’’ ‘‘cash flow’’ and an incident
involving an employee’s girlfriend picking up a paycheck as-
sertedly without authority.11
Telesz admittedly shut down his facility and laid off his
employees after the election results were made known on
Friday, September 8. Employees were summarily notified
that the Employer ‘‘will be closing their doors’’ ‘‘for inven-
tory and reevaluation’’; required to ‘‘turn in’’ tools and com-
pany property ‘‘before checks will be issued’’; and advised
that ‘‘all personal items should be removed from the prem-
ises.’’ (See G.C. Exh. 3.) Telesz claimed that he laid off the
employees in this manner ‘‘because [he] had to meet with
[his] attorney on Monday.’’ Telesz was asked ‘‘why didn’t
you work on Saturday if you had to meet with your attorney
on Monday?’’ Telesz responded:
Well, most of the employees told me they didn’t want
to . . . and under the circumstances with all the emo-
tional things that went on we decided that we weren’t
going to force anybody to work on Saturday.
Elsewhere, Telesz testified: ‘‘I think maybe someone did
work on that Saturday but I didn’t force anybody to.’’ Else-
where, Telesz acknowledged that employees had been re-
quired to remove their tools from their vans which is not
‘‘normal’’ if they are only being sent home for the day; the
layoff could have been ‘‘forever’’; he ‘‘did it [lay off the
employees] because [his] attorney told [him] to’’; the attor-
ney ‘‘told us to prepare a notice, leave it vague, . . . we
weren’t really laying them off because we really wanted to
just figure out where we were going to go from there . . .
[the attorney] basically told us what to say in the notice’’;
the attorney later told him on Monday ‘‘to recall the employ-
ees’’ which he did; and the employees were admittedly paid
for all time lost as a consequence of the September 8 layoff
after unfair labor practice charges were filed in this pro-
ceeding.12
Telesz next testified with respect to the subsequent firing
of Morrice on Thursday October 19. Telesz acknowledged
that Morrice previously had asked for every other Saturday
off from work in order to visit his children and Telesz had
agreed that he ‘‘would do [his] best.’’ Telesz claimed that
he never changed this policy during the union campaign.
Telesz asserted that he did not ‘‘know’’ that Morrice also
‘‘wanted to get off’’ on Tuesday and Thursday evenings in
order ‘‘to visit his kids.’’ Telesz elsewhere testified:
Q. He [Morrice] never told you that? Is that your
testimony?
A. Not to my knowledge.
Q. He did tell you [that] during that phone conversa-
tion [on the day of his termination], did he not?
A. I don’t believe he did.
Telesz elsewhere insisted that Morrice told him during one
of their telephone conversations on the afternoon of October
19 that ‘‘he just wasn’t going to go’’ on the Arby’s call;
Telesz asked ‘‘why’’; and Morrice said that he ‘‘had to leave
at 5’’ and ‘‘did not’’ state ‘‘why he had to leave.’’ Morrice
was fired later that day assertedly for refusing to take the
Arby’s call.
Telesz next testified with respect to the alleged ‘‘quitting’’
by employee Presley shortly following the Morrice termi-
nation. Telesz walked into the garage following his termi-
nation of Morrice and discovered that the timeclock had been
broken by Presley. Presley, in a loud voice, acknowledged
that he had ‘‘hit it too hard because [he] was mad’’; he ‘‘was
tired of my bullshit’’; he ‘‘was tired of working for an
asshole like me . . . the long hours . . . working every Sat-
urday’’; and ‘‘he ought to just quit.’’ Telesz testified that he
then apprised Presley that he ‘‘had nothing against him’’;
‘‘we had no problems’’; and he ‘‘should go home . . . cool
off.’’ According to Telesz, Presley responded that he ‘‘didn’t
need time to think about it’’—‘‘he quit.’’ Presley did not re-
port for work on Friday or Saturday—‘‘everybody was going
to work on Saturday.’’ Presley reported on Monday, October
23 and, as Telesz recalled, ‘‘walked in and asked if I had
any work for him.’’ Presley also stated: ‘‘I meant everything
I said on Thursday.’’ Telesz then apprised Presley that he
had ‘‘quit on Thursday.’’ Presley replied that he had said
that ‘‘he ought to quit.’’ Telesz insisted that ‘‘it was real
clear that you said you had quit’’ and, assertedly, Presley ac-
knowledged ‘‘I guess I did.’’
Telesz elsewhere testified that Presley, during their con-
frontation on Thursday, October 19, did not refer at all to
Morrice being fired. Telesz also testified that Presley had not
filled out a ‘‘quit slip’’ for the Employer at the time and
Telesz was uncertain whether Presley had turned in his tools.
Telesz further testified:
Q. But notwithstanding that he [Presley] had broke
the time clock and notwithstanding that he said this was
bullshit, you told him you had no problem with that
. . . you told him to reconsider, is that right?
A. Yes.
Q. As of that point if he had reconsidered you would
have taken him back?
A. Yes I would have.
Q. Notwithstanding him swearing at you or breaking
the time clock?
A. I am not a hard man to get along with and I
would have taken him back, yes.
Q. I take it at the time you were thinking he was just
blowing off steam, don’t do something rash?
A. Yes.
Q. Isn’t it true sir when he came in the following
Monday he said I did not quit?
A. He told me that before we even started our con-
versation, that he meant everything he had said on
Thursday.
11AMPERAGE ELECTRIC
13 There is no claim made here that Presley was discharged because of his
language or conduct during the above confrontation. Counsel for Respondent
solely argued that Presley quit. See Tr. 287.
14 Cooper, as noted, was hired initially in 1984 and rehired in 1986.
15 Jeffrey Martineau, associated with Action Auto Stores, a customer of Re-
spondent, generally testified that on ‘‘multiple crew’’ jobs involving Action
Auto he would ‘‘deal’’ only with Telesz, Harris, Morrice, or Cooper pertaining
to job changes and employees working late; and one of these four would be
present for contractor meetings at the site or for inspections of completed
work. Martineau generally asserted that Cooper ran the gas installation crew
at such sites and ‘‘trained other guys.’’ Elsewhere, Martineau acknowledged
that he last observed ‘‘multiple crews’’ of Amperage at Action Auto ‘‘about
a year ago’’; he ‘‘generally’’ ‘‘left it to someone else to take care of the
project’’; ‘‘he wouldn’t spend much time at any one job location’’; and he
had ‘‘no idea’’ who Morrice or Cooper ‘‘would check with’’ at Amperage
about his requested changes or overtime—‘‘they must have called somebody.’’
Kurt Curtis, also associated with Action, generally claimed that he too
would ‘‘deal’’ with Telesz, Morrice, or Cooper at ‘‘multiple crew’’ sites con-
cerning ‘‘what portion of the project to work on that day’’; ‘‘any changes that
might occur’’; ‘‘how much of a crew we’re going to need for the next day’’;
‘‘or whatever.’’ Curtis asserted that Morrice and Cooper would attend onsite
contractor meetings as ‘‘supervisors,’’ however, he acknowledged that he ‘‘as-
sumed they were supervisors’’ from what Telesz had told him. Curtis too was
unaware of whether or not Morrice or Cooper ‘‘spoke to anybody back at Am-
perage with respect to any of [his onsite job] requests.’’
George Brown, city building director during the pertinent time period, testi-
fied that in addition to dealing with Telesz he would also deal with Morrice
concerning inspections and permits; Telesz once told him ‘‘that Dennis would
be in charge of field operations and so on for the Company’’ during Telesz’
absence for ‘‘several days up to a week’’; and Telesz referred to Morrice as
‘‘supervisor,’’ ‘‘foreman,’’ or ‘‘superintendent.’’ However, Brown was uncer-
tain of Telesz’ ‘‘exact words’’ and could not ‘‘recall [the] title’’ used by
Telesz.
Q. When he went into your office . . . are you say-
ing he never said he didn’t quit?
A. He told me that he meant everything he said on
Thursday, but he said he should quit.
Q. He ought to quit?
A. Yeah. . . .
Q. So the only thing that went on—because he didn’t
apologize you wouldn’t take him back?
A. Well you got to remember he was the one
screaming, hollering and swearing at me. If he would
have come in and apologized for all of that, yes, I prob-
ably would have at the time.
Q. Did you say I got to talk to my lawyer
. . . .?
A. He told me that he didn’t think he had quit . . .
and I said I would talk to my . . . lawyer.13
Telesz next testified about the October 30 and 31 strike
and his firing or replacement of Cooper. Telesz assertedly
needed a ‘‘supervisor’’ during this strike and, as he recalled,
‘‘at the time I knew my brother-in-law had been dissolved
in his business and I asked him to come aboard as a super-
visor.’’ Telesz assertedly hired his brother-in-law on October
31 to start on November 1. When Cooper returned to work
on November 1, Telesz ‘‘told him that I had to have a super-
visor and he wasn’t available so I had to replace him.’’
Telesz notified Cooper (G.C. Exh. 6):
On Monday October 30 . . . you left your job without
prior notice [and] joined employees on strike, as a re-
sult we have hired a supervisor to replace you.
Finally, Telesz testified with respect to the alleged super-
visory status of Morrice and Cooper. Respondent’s field per-
sonnel ‘‘normally’’ worked in crews consisting of a journey-
man and apprentice electrician. There were occasions when
‘‘multiple crews’’ were used on certain jobsites, however,
the ‘‘majority’’ of the work was ‘‘single crew’’ work.
Morrice and Cooper assertedly were placed in charge of
‘‘multiple crews’’ and would, on such occasions, direct the
personnel involved. In addition, Morrice had been classified
as a ‘‘supervisor’’ in late 1987 when he became a licensed
electrician and his personnel file or folder listed him as a
‘‘supervisor.’’ Moreover, Morrice trained new personnel and
recommended ‘‘whether to keep them’’; personnel were told
in late 1987 that Morrice was a ‘‘supervisor’’; and Morrice
and Telesz would participate together in employee discipli-
nary meetings. Further, Morrice was entrusted with the key
to the shop and was to be contacted in case of emergency
(see R. Exh. 20); would disburse employees on job assign-
ments when Telesz was not present; and could change work
schedules without consulting with Telesz. Morrice could also
make changes in a job and bid for extra work, however,
these were apparently ‘‘minor changes’’ in previously ap-
proved bids. Morrice had recommended laying off employees
when business was slow in the summer of 1989; the Em-
ployer paid for Morrice’s disability insurance policy; and
personnel were apprised that Morrice was Telesz’ ‘‘right
hand man.’’
Telesz further claimed that both Morrice and Cooper
would review previously prepared work schedules ‘‘and fig-
ure out how we were going to juggle [the] people around to
take care of [the] customers’’; both could ‘‘order parts’’;
both were the highest paid field personnel; and both had the
authority to have crews work beyond their scheduled quitting
time when requested by a customer on ‘‘multiple crew’’
jobs. In addition, Telesz claimed that Cooper would make
changes in contracts if it was necessary on ‘‘multiple crew’’
jobs; would make ‘‘suggestion[s] . . . if somebody wasn’t
pulling their own weight’’; and could ‘‘direct’’ employees.
Cooper assertedly was told when he was hired that Telesz
‘‘needed another supervisor.’’14 However, it is undisputed
that Cooper’s personnel file or folder only lists him as ‘‘mas-
ter electrician’’ and not as a ‘‘supervisor.’’15
Harold Zimmerman, father-in-law of Kent Telesz, testified
that he is ‘‘often’’ on Respondent’s premises; he witnessed
the Telesz-Presley confrontation on Thursday, October 19;
and Presley then stated:
God dammit Kent, I am sick and tired of taking your
bullshit . . . I’ve worked all this overtime all these Sat-
urdays and I am sick and tired of working it . . . I’m
not married to you or my job . . . I have a wife that
I’m married to and I’m going to satisfy her. . . . As
far as overtime and my job I’m not worried about it be-
cause I just quit.
Zimmerman witnessed nothing else of this exchange.
Jon Harris, an estimator for Respondent Employer, also
testified about the Telesz-Presley confrontation on Thursday,
October 19. Harris recalled:
. . . [Presley] said I’m not going to pull this shit,
walked around the corner and the next thing I know he
came back . . . back around the corner and he says
well I quit too and that was it.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Harris was also questioned about the alleged supervisory status of Morrice
and Cooper. Harris claimed that ‘‘when the started out with the Company . . .
as an apprentice . . . Dennis [Morrice] was [his] supervisor’’; later, after he
became an estimator, ‘‘when Kent [Telesz] went on vacation . . . a couple
of times Dennis would be in the office and handle all the crews’’; he also
observed both Morrice and Cooper in charge of ‘‘multiple crews’’; and
Dennis was Kent’s number one man . . . if Dennis was on a job and
Kary [Cooper] was on a job Dennis would be in charge . . . if Kary was
on a job and Dennis wasn’t on a job Kary was in charge if there was
multiple crews.
Harris also recalled:
one day I was in . . . personnel manager . . . Bob’s office and he had
a conversation with Dennis and Kary as to whether or not we should keep
this guy and they both indicated that they didn’t think it was worth while
. . . and he [this guy] was subsequently let go.
Elsewhere, Harris testified:
Q. Isn’t it also true that on the Auto Action jobs on occasion . . .
somebody else besides Gary or Dennis would be out on a job alone with
apprentices, some other journeyman?
A. Yes.
Q. David Boyd . . . and John Vyskocil?
A. Yes.
Later, Harris claimed that to his ‘‘knowledge’’ Boyd and Vyskocil did not
‘‘run any multiple crews.’’
Harris was then questioned about Presley’s attempt to return
to work the following Monday. Harris recalled:
Gary . . . said [to Telesz and Harris] I want you to un-
derstand one thing . . . everything I said I meant and
I don’t take anything back . . . and then he said . . .
that he . . . [had said on Thursday] that he ought to
quit, not that he quit . . . and I looked right at him and
said Gary you quit . . . and he says the guys told me
I said a lot of things I don’t remember . . . and Kent
says as far as we’re concerned that’s it . . . and he
says fine then I quit then.
On cross-examination Harris acknowledged that ‘‘nobody
else [had] quit [on Thursday], Dennis was fired. Harris then
attempted to change his testimony claiming that Presley
‘‘didn’t say I quit too.’’ Later, Harris again claimed that
Presley had stated on Thursday ‘‘I quit too.’’ Harris ac-
knowledged that Presley’s alleged statement on Thursday
was directed to Morrice at the time—Presley ‘‘wasn’t com-
ing up to [him] as a management official . . . turning in his
papers or anything like that.’’ Harris also acknowledged that
Presley had insisted on the following Monday that he had
said ‘‘I ought to quit.’’16
I credit the testimony of Dennis Morrice, Kary Cooper,
Gary Presley, Richard Beamish, John Bond, John Vyskocil,
Bernie Andres, William Burman, Jeff Bower, and David
Boyd, as detailed supra. Their testimony pertaining to this
entire sequence of events is in large part mutually corrobora-
tive and is also substantiated in significant part by admis-
sions of Respondent’s witnesses and undisputed documentary
evidence of record. They also impressed me as trustworthy
and reliable witnesses. On the other hand, I find the testi-
mony of Kent Telesz, Kevin Newberry, Linda Telesz, Harold
Zimmerman, and Jon Harris to be vague, incomplete, con-
tradictory, evasive, and unclear. I do not on this record find
Kent Telesz, Kevin Newberry, Linda Telesz, Harold Zimmer-
man, and Jon Harris to be trustworthy and reliable witnesses.
Thus, for example, I find incredible here Kent Telesz’ as-
sertions that he suddenly changed the Employer’s existing
policy with respect to allowing employees to take their vans
home during evenings because ‘‘we were losing money’’ and
that he in like vein suddenly announced a policy change with
respect to employees’ picking up their paychecks early be-
cause of ‘‘poor’’ ‘‘cash flow’’ or an unsubstantiated incident
involving an employee’s girlfriend picking up a paycheck as-
sertedly without authority. I am persuaded instead that these
and other related acts of Telesz were part and parcel of his
strong opposition to the Union’s attempt to represent his em-
ployees. I find equally incredible Telesz’ shifting and unsub-
stantiated reasons for suddenly laying off his employees as
soon as it became apparent that the Union had decisively
won the Board-conducted representation election. This record
makes it clear, as discussed below, that Telesz was retaliating
against his employees for choosing union representation. He
was admittedly ‘‘emotionally broken up’’ by the employees’
selection of union representation earlier that day. Indeed,
Telesz, after charges were filed here, made his employees
whole for any losses sustained from this sudden and unprece-
dented layoff.
I find equally incredible on this record the assertions by
Telesz that Morrice never told him that Morrice wanted to
get off at quitting time on Tuesdays and Thursdays so that
he could visit his children or that on Thursday, October 19,
Morrice did not say ‘‘why’’ he had to leave on quitting time
that particular evening. Cooper credibly testified that Telesz
had acknowledged to him on October 19 that Telesz was
aware that Morrice ‘‘had custody of his boys that evening.’’
Moreover, I similarly reject as incredible the assertions by
Telesz that Presley did not refer at all to the firing of
Morrice later on Thursday, October 19, and Presley then stat-
ed to management that ‘‘he quit.’’ I find instead, as dis-
cussed below, that Presley emotionally apprised Telesz on
Thursday, October 19, that he ‘‘ought to quit’’; no steps
were taken by the Employer or employee to end this employ-
ment relationship; Telesz concededly did not terminate the
employee because of this brief emotional confrontation; and
Telesz later insisted that Presley had ‘‘quit’’ as part of his
attempt to retaliate against the employees for supporting and
selecting union representation.
Likewise, I reject as incredible Telesz’ asserted justifica-
tion for the subsequent firing of Cooper. Cooper joined the
employees in their brief strike on October 30 and 31. On Oc-
tober 31 the Union notified the Employer that the striking
employees ‘‘will unconditionally return to work effective
November 1.’’ I do not credit Telesz’ assertions to the effect
that he needed a ‘‘supervisor’’ during this strike; ‘‘knew this
brother-in-law had been dissolved in his business’’; and hired
his brother-in-law on October 31 as a replacement to start on
November 1. I am persuaded on this record, as discussed
below, that Telesz hired no permanent replacement for Coo-
per but instead retaliated against this employee because he
had joined the strike. In addition, I do not credit the assertion
by Telesz’ father-in-law, Zimmerman that Presley had con-
veniently stated in his presence on October 19 ‘‘I just quit.’’
Zimmerman’s testimony about this incident is vague and in-
complete. Equally incredible is the contradictory and con-
fusing assertion by Harris that Presley had said ‘‘I quit too.’’
No one else had assertedly quit that day—Morrice had been
‘‘fired.’’ And, Newberry’s elicited denials of coercive state-
ments by Telesz during the Union’s campaign were incom-
plete, vague, and unreliable.
It is true, as counsel for Respondent argues, the testimony
of General Counsel’s witnesses was at times not the best.
Thus, for example, Morrice initially attempted to minimize
13AMPERAGE ELECTRIC
17 To the extent that the testimony of Martineau, Curtis, and Brown con-
tradicts materially the testimony of General Counsel’s witnesses, as summa-
rized above, I find the testimony of the former to be general, vague, and in-
complete.
18 Since I have found Morrice to be a ‘‘supervisor’’ beyond the protection
of Sec. 8(a)(1) and (3) of the Act, it is unnecessary for me to discuss further
whether the Employer engaged in the alleged unlawful conduct pertaining
solely to him. I note, however, for the benefit of reviewing authority, that in
the event Morrice were regarded as a protected employee I would find on the
credited evidence detailed supra that management engaged in the alleged coer-
cive and discriminatory conduct pertaining solely to him. In particular, I am
persuaded here that Telesz fired Morrice on the day in question because he
previously had discovered that Morrice supported the Union; Telesz thereafter
seized upon Morrice’s refusal to take a job assignment which would interfere
with his evening visitation rights of his children as a pretext to get rid of
Morrice; and Telesz would not otherwise have discharged Morrice under the
circumstances.
and deny his authority with the Employer. Nevertheless, a
fair review of Morrice’s entire testimony as well as the testi-
mony of the other witnesses called by General Counsel not
only discloses a complete and trustworthy picture of Re-
spondent’s unlawful threats, coercion, restraint, and discrimi-
nation during this pertinent period, it also discloses a com-
plete and trustworthy picture of the authority exercised by
Morrice and Cooper. On balance, the cited weaknesses of
General Counsel’s witnesses in this and related respects must
be assessed in the context of the testimony of Respondent’s
witnesses, whose testimony, as stated above, I find on this
full record to be unreliable and untrustworthy.17
Discussion
Section 7 of the National Labor Relations Act guarantees
employees ‘‘the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection,’’ as well as ‘‘the right to
refrain from any or all such activities.’’ Section 8(a)(1) of
the Act makes it an unfair labor practice ‘‘to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7.’’ Section 8(a)(3) forbids ‘‘discrimi-
nation in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage
membership in any labor organization.’’
Counsel for Respondent initially argues that both Morrice
and Cooper are ‘‘supervisors’’ and consequently beyond
these protections of the Act. A ‘‘supervisor’’ is defined in
Section 2(11) of the Act as
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively recommend such action, if in
connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
Actual existence of true supervisory power is to be distin-
guished from abstract, theoretical, or rule book authority. It
is well established that a rank-and-file employee cannot be
transformed into a supervisor merely by investing him or her
with a ‘‘title and theoretical power to perform one or more
of the enumerated functions.’’ NLRB v. Southern Bleachery
& Print Works, 257 F.2d 235, 239 (4th Cir. 1958), cert. de-
nied 359 U.S. 911 (1959). That is relevant is the actual au-
thority possessed and not the conclusory assertions of wit-
nesses. And while the enumerated powers listed in Section
2(11) of the Act are to be read in the disjunctive, Section
2(11) also ‘‘states the requirement of independence of judg-
ment in the conjunctive with what goes before.’’ Poultry En-
terprises v. NLRB, 216 F.2d 798, 802 (5th Cir. 1954). Thus,
the individual must consistently display true independent
judgment in performing one or more of the enumerated func-
tions in Section 2(11) of the Act. The performance of some
supervisory tasks in a merely ‘‘routine,’’ ‘‘clerical,’’ ‘‘per-
functory’’ or ‘‘sporadic’’ manner does not elevate a rank-
and-file employee into the supervisory ranks. NLRB v. Secu-
rity Guard Service, 384 F.2d 143, 146–149 (5th Cir. 1967).
Nor will the existence of independent judgment alone suf-
fice; for ‘‘the decisive question is whether [the individual in-
volved] has been found to possess authority to use [his or
her] independent judgment with respect to the exercise [by
him or her] of some one or more of the specific authorities
listed in Section 2(11) of the Act.’’ See NLRB v. Brown &
Sharpe Mfg. Co., 169 F.2d 331, 334 (1st Cir. 1948). In short,
‘‘some kinship to management, some empathetic relationship
between employer and employee, must exist before the latter
becomes a supervisor of the former.’’ NLRB v. Security
Guard Service, supra.
Applying these principles of law to the credited evidence
of record, I find and conclude that Morrice was a ‘‘super-
visor’’ and thus beyond the protection of the Act. Morrice,
as he acknowledged, was listed as a ‘‘supervisor’’ in his per-
sonnel jacket since 1987, long before the Union’s organiza-
tional effort. Morrice was then told ‘‘to be a supervisor’’ and
he was Owner Telesz’ ‘‘right hand man’’ and ‘‘number one
man.’’ The unit employees were similarly apprised by Telesz
of Morrice’s ‘‘right hand man’’ and ‘‘number one man’’ sta-
tus. Morrice would run the office when Telesz was absent.
New apprentices would be assigned to work with Morrice
and Morrice would tell Telesz ‘‘if they were worthwhile.’’
Morrice was ‘‘often’’ placed in charge of ‘‘multiple crews’’
consisting of both journeymen and apprentice electricians.
Morrice made ‘‘written evaluations’’ of employees; he
signed an ‘‘employee warning report’’ as a ‘‘supervisor’’
which concludes: ‘‘if there is not substantial improvement
we will terminate’’ the criticized employee; he repeatedly
signed detailed trainee evaluations as a ‘‘supervisor’’; and he
‘‘suggested’’ to Telesz that he ‘‘thin out’’ or lay off employ-
ees ‘‘if things were slow and people weren’t working out.’’
Further, it is undisputed that Morrice would participate with
Telesz in employee disciplinary meetings; Morrice was en-
trusted with the key to the shop and was to be contacted in
case of an emergency; and the Employer paid for Morrice’s
disability insurance policy which was not the case for other
field personnel. In sum, I find and conclude here that
Morrice had the authority to effectively recommend layoff,
discharge, and discipline of employees; he could responsibly
direct other employees; and the exercise of such authority by
him was not merely of a clerical, sporadic, or routine nature
but required the use of his independent judgment.18
On the other hand, I do not find and conclude on this
record that Cooper was a ‘‘supervisor.’’ As counsel for Re-
spondent acknowledges in his posthearing brief (p. 38),
‘‘Amperage readily concedes that Cooper’s authority and re-
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sponsibilities were not as broad as Morrice’s.’’ Thus, Cooper
credibly testified that he worked for the Employer for about
5 months in 1984 and then quit; he was hired again in No-
vember 1986 and worked until his discharge on November
1, 1989; he held a master electrician’s license; and he was
paid $12.25 an hour, punched a timeclock, had medical in-
surance coverage, was given 1 week’s paid vacation with
paid holidays and 3 personal days off. Cooper contacted the
Union in June 1989 to enlist its support in organizing the
Employer’s shop. He assembled the names and addresses of
the employees for the Union, attended union meetings, and
signed a union membership card.
Cooper credibly recalled that at an employee meeting
about 3 weeks before the September 8 representation elec-
tion, Telesz first apprised Cooper that he ‘‘was considered a
supervisor . . . and wouldn’t vote.’’ Cooper explained that
earlier that month Telesz had discussed with him ‘‘the possi-
bility’’ of making him a supervisor and asked if he was ‘‘in-
terested.’’ Cooper then responded: ‘‘I really didn’t know
what I wanted because of what was going on with the Union
drive and everything and I’d let him know.’’ Later, at the
above meeting some 3 weeks before the election, Telesz sud-
denly apprised Cooper that he was ‘‘considered a super-
visor’’ and would not vote in the election.
Cooper credibly testified that his duties did not change
after he was suddenly informed by Telesz during August that
he was ‘‘considered’’ a supervisor; he was not then told that
he had any new authority; and he denied exercising any of
the indicia of supervision as set forth in Section 2(11) of the
Act. Cooper explained his duties, as follows:
I was told in the morning what the job was to go to.
. . . And either I would be informed by Kent in the
morning or Jon Harris, the estimator, what the job con-
sisted of, what needed to be done, or I’d meet on the
job site with the construction supervisor or home
owner, or if they had a blueprint there [I] would go
over the blueprint, or if there was an occasion where
we’d done a job before and were familiar with it . . .
go over the layout of the job, find out what had to be
done and instruct the apprentice or whoever was work-
ing with me at the time what his duties were.
Cooper noted that if his apprentice on such a job did not per-
form the work to his satisfaction, ‘‘I’d ask him to change
it’’; however, Cooper was never told he had the authority to
discipline and never disciplined an apprentice. Cooper added
that he was never told that he had the authority to hire or
recommend anyone for hiring; the authority to lay off or rec-
ommend anyone for layoff; the authority to fire or rec-
ommend anyone for firing; the authority to discipline or rec-
ommend anyone for discipline; the authority to grant a wage
increase; the authority to select the jobsite an apprentice went
to; and the authority to grant time off, permit personnel to
come in late or leave early.
Cooper credibly explained that a crew would ‘‘generally’’
consist of two persons, himself and an apprentice. There
were ‘‘occasions’’ when there would be multiple crews at a
job and on such occasions he, as a crew chief, ‘‘would be
telling a number of people what to do, not just [his] appren-
tice.’’ Cooper noted, however, that he had served on several
multiple crew jobs when another licensed electrician, other
than Morrice or himself, were the crew chiefs. Thus, for ex-
ample, John Vyskocil was a crew chief on a particular job,
‘‘in charge of the job’’; and Vyskocil ‘‘let [Cooper] know
what to do and what had to be done.’’ Moreover, according
to Cooper, as a crew chief, he still ‘‘would call the office’’
to ‘‘get permission’’ if a customer wanted ‘‘a change’’ in the
job and ‘‘if they wanted a price’’; he was never told that he
had the authority to quote a price for changed or additional
work; he would also notify the office when the customer
‘‘wanted people to work over’’ and ‘‘get permission.’’
And, Cooper credibly explained why the Union and the
Employer had stipulated to his alleged ‘‘supervisory’’ sta-
tus—‘‘it was more or less a compromise that Dennis
[Morrice] and [Cooper] were not to be included in the elec-
tion so that we could get the election on a little earlier . . .
[and] didn’t have to have any more delays.’’ This accommo-
dation among the parties would not make Cooper a ‘‘super-
visor’’ within the meaning of Section 2(11) of the Act. Cf.
Servomation, 235 NLRB 975, 976 fn. 3 (1978). Moreover,
it is conceded that Cooper’s personnel file or folder only lists
him as ‘‘master electrician’’ and not as a ‘‘supervisor.’’
In sum, I find and conclude here that Cooper did not have
the authority to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward or discipline other employ-
ees, or responsibly to direct them, or to adjust their griev-
ances, or effectively recommend such action, and the alleged
exercise of such authority by him was at best of a clerical,
sporadic, or routine nature and did not require the exercise
of independent judgment. Cooper is not a ‘‘supervisor’’ and
is therefore entitled to the protection of the Act.
Counsel for Respondent next argues that Telesz did not
engage in the alleged acts of interference, restraint, coercion,
and discrimination attributed to him. The credited testimony
of record summarized above is to the contrary. Thus, em-
ployee Presley credibly testified that Telesz repeatedly told
the employees during the Union’s organizational campaign
that ‘‘if we voted in a Union he would have to close the
doors’’; ‘‘he couldn’t afford a Union’’; ‘‘we would be out
of a job.’’ Employee Andres credibly recalled Telesz telling
employees that ‘‘if we were to go Union he wouldn’t be able
to afford the fees . . . he’d have to close the doors.’’ And,
employee Cooper credibly recalled Telesz telling the employ-
ees that ‘‘he wouldn’t sign a contract’’; ‘‘he’d probably have
to close his doors and go out of business.’’ Telesz admittedly
‘‘didn’t know what the [Union’s] wage rates were.’’ Telesz,
at the same time, suddenly announced to Cooper at an em-
ployee meeting that Cooper ‘‘was considered a supervisor
. . . and wouldn’t vote.’’ Telesz later admonished Cooper
that he could ‘‘fire’’ Cooper because he was a ‘‘supervisor’’
‘‘but he couldn’t fire anyone else at the time.’’
Telesz, by the above statements and conduct, unlawfully
threatened employees with discharge and closedown if they
chose union representation. Telesz’ coercive statements can-
not reasonably be regarded on this record as privileged
speech under Section 8(c) of the Act or ‘‘carefully phrased
on the basis of objective fact to convey an employer’s belief
as to demonstrably probable consequences beyond his con-
trol.’’ See NLRB v. Gissel Packing Co., 395 U.S. 575, 616–
620 (1969); Overnite Transportation Co., 296 NLRB 669
(1989). Telesz, at the same time, unlawfully admonished em-
ployees that it would be futile for them to choose union rep-
resentation because he would not sign a collective-bargaining
15AMPERAGE ELECTRIC
agreement with the Union. See Overnite Transportation,
supra. In addition, Telesz, as part of this effort to defeat the
Union’s organizational drive, unlawfully attempted to pro-
mote employee Cooper out of the bargaining unit. See Gold-
en State Bottling, 414 U.S. 168, 188 (1973); and NLRB v.
Bell Aircraft Corp., 206 F.2d 235 (2d Cir. 1953). Thus, as
noted, Cooper was suddenly apprised at an employee meet-
ing that he was ‘‘considered’’ a ‘‘supervisor’’ and would not
vote. Cooper was later admonished that he could now be
‘‘fired’’ as a ‘‘supervisor.’’ Telesz made good on this threat
when he subsequently fired Cooper because Cooper had
joined the employees’ strike. Such statements and conduct
plainly tended to impinge upon employee Section 7 rights in
violation of Section 8(a)(1) of the Act.
Telesz similarly resorted to proscribed acts of discrimina-
tion in violation of Section 8(a)(3) and (1) of the Act. Telesz,
during the campaign, unlawfully implemented new work
rules which no longer permitted his employees to park the
Employer’s vehicles at their homes overnight and to receive
their paychecks prior to quitting time on Fridays. He also un-
lawfully ceased his practice of readily paying for the repair
or replacement of employees’ tools. There is no credible ex-
planation for the sudden implementation of these changes
during the Union’s organizational campaign. These changes
in terms and conditions of employment were part of Telesz’
effort to defeat the Union’s campaign. And, later, when the
employees decisively voted for union representation in the
Board-conducted representation election, Telesz unlawfully
shut down his facility in retaliation. Telesz was angered and
felt betrayed because his employees had exercised their statu-
tory right to have union representation. Such conduct,
discriminatorily motivated here, runs afoul of the proscrip-
tions of Section 8(a)(3) and (1) of the Act. See St. Agnes
Medical Center, 287 NLRB 242 (1987), enfd. in part and re-
manded, 871 F.2d 137 (DC Cir. 1988).
Telesz also violated Section 8(a)(3) and (1) of the Act by
discriminatorily firing employees Presley and Cooper. Pres-
ley credibly testified that shortly before quitting time on
Thursday, October 19, Morrice apprised Presley that he,
Morrice, had been fired. Presley was admittedly angered and
upset. He then went to punch out and broke the timeclock
because he apparently hit it ‘‘too hard.’’ Telesz came out of
the office. Presley told Telesz, inter alia, ‘‘you just fired
Dennis for no reason’’; Telesz explained why he assertedly
had fired Morrice; Presley responded: ‘‘that’s a bunch of shit
. . . you’re just looking for an excuse to fire Dennis because
of our Union activities’’; ‘‘I was tired of the bullshit’’; ‘‘I
was tired of this fuckin place’’; and ‘‘I ought to just go out
to the truck, get my time card and turn the damn thing in.’’
Telesz replied: ‘‘do what you got to do.’’ Presley later told
Morrice, who was in the parking lot cleaning his tools,
‘‘Kent’s probably going to fire me or after what I said . . .
he might even think I quit.’’ Presley and Morrice then
‘‘walked away.’’ Presley, however, did not turn in his time-
card.
Presley credibly testified that he met with his coworkers
later that day; ‘‘talked about . . . Dennis . . . being fired’’;
and decided ‘‘not going to work the next day and protesting
what happened.’’ Presley did not work on Friday, October
20. Instead, he had telephoned the office about 6 a.m. earlier
that day and ‘‘told the answering service that [he] was going
to take a personal day.’’ Thereafter, on Monday, October 23,
Presley attempted to report for work and had the following
exchange with Telesz:
I [Presley] was there to work . . . he [Telesz] wanted
to know why . . . because I had said on Thursday that
I was going to quit . . . he said I used some terrible
language on Thursday . . . and I said yes I was very
upset with you and probably did . . . [and I] meant
every word.
Telesz maintained that Presley had quit; Presley maintained
that he ‘‘didn’t quit’’; and Telesz said he would discuss the
matter with his attorney. Telesz thereafter continued to refuse
to permit Presley to resume working there.
As noted above, there is no claim made here that Presley
was discharged because of his language or conduct during
the above confrontation. Counsel for Respondent solely ar-
gued that Presley had quit. (See Tr. 287.) Telesz also ac-
knowledged in his testimony that during this confrontation
on Thursday, October 19, he did not refer at all to Morrice
being ‘‘fired’’; Presley had not filled out a ‘‘quit slip’’ for
the Employer; and Telesz was uncertain whether Presley had
turned in his tools. Telesz further testified:
Q. But notwithstanding that he [Presley] had broke
the time clock and notwithstanding that he said this was
bullshit, you told him you had no problem with that
. . . you told him to reconsider, is that right?
A. Yes
Q. As of that point if he had reconsidered you would
have taken him back?
A. Yes I would have.
Q. Notwithstanding him swearing at you or breaking
the time clock?
A. I am not a hard man to get along with and I
would have taken him back, yes.
Q. I take it at the time you were thinking he was just
blowing off steam, don’t do something rash?
A. Yes.
I find and conclude on this record that Presley had not quit
on Thursday, October 19; he had not been fired; he instead
had emotionally apprised Telesz that he ‘‘ought to quit’’; no
steps were taken by the Employer or employee to end this
2-year employment relationship; Telesz concededly did not
terminate the employee because of this brief emotional con-
frontation; and Telesz later, on Monday, October 23, unlaw-
fully insisted that Presley had ‘‘quit’’ as part of his attempt
to retaliate against the employees for supporting and select-
ing union representation.
In like vein, Telesz unlawfully fired Cooper on November
1. Telesz previously had attempted to promote Cooper out of
the unit and thus deprive the employee of the protection of
the Act. Telesz had threatened Cooper that he could by this
maneuver fire Cooper without penalty. Later, on October 30
and 31, Cooper joined the employees’ brief strike. Cooper,
at strike’s end on November 1, attempted to return to work
and was informed that he had ‘‘joined employees on strike’’
and ‘‘we have hired a supervisor to replace you.’’ As recited
above, I do not credit Telesz’ assertions to the effect that he
needed a ‘‘supervisor’’ during this strike; ‘‘knew [his] broth-
er-in-law had been dissolved in his business’’; and hired his
brother-in-law on October 31 as a replacement to start on
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Under the circumstances, it is unnecessary for me to decide whether the
strike was an unfair labor practice strike as alleged in the amended complaint.
20 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 objec-
tions to them shall be deemed waived for all purposes.
November 1. I find and conclude on this record that Telesz
had hired no permanent replacement for Cooper but instead
retaliated against this employee because he had joined this
protected economic strike. See NLRB v. Mars Sales &
Equipment, 626 F.2d 567, 573 (7th Cir. 1980).19
I therefore find and conclude that Respondent Employer
violated Section 8(a)(1) of the Act by threatening employees
with discharge and closedown of its facility if they selected
the Union as their collective-bargaining representative; telling
employees that it would be futile for them to select the
Union as their collective-bargaining representative because
the Employer would not sign a union contract; and attempt-
ing to promote an employee out of the unit because of the
Union’s organizational campaign. I find and conclude that
Respondent Employer violated Section 8(a)(3) and (1) of the
Act by implementing new rules which no longer permitted
employees to park the Employer’s vehicles at their homes
overnight and to obtain their paychecks prior to 5 p.m. on
Fridays; ceasing its practice of readily paying for the repair
and replacement of employees’ tools; laying off unit employ-
ees following the Board-conducted representation election;
and discharging employees Presley and Cooper because of
the employees’ activities on behalf of and in support of the
Union. The remaining allegations of the amended consoli-
dated complaint are dismissed.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in com-
merce and Charging Party Union is a labor organization as
alleged.
2. Respondent Employer violated Section 8(a)(1) of the
Act by threatening employees with discharge and closedown
of its facility if they selected the Union as their collective-
bargaining representative; telling employees that it would be
futile for them to select the Union as their collective-bar-
gaining representative because the Employer would not sign
a union contract; and attempting to promote an employee out
of the unit because of the Union’s organizational campaign.
3. Respondent Employer violated Section 8(a)(3) and (1)
of the Act by implementing new rules which no longer per-
mitted employees to park the Employer’s vehicles at their
homes overnight and to obtain their paychecks prior to 5
p.m. on Fridays; ceasing its practice of readily paying for the
repair and replacement of employees’ tools; laying off unit
employees following the Board-conducted representation
election; and discharging employees Presley and Cooper be-
cause of the employees’ activities on behalf of and in support
of the Union.
4. The remaining alleged unfair labor practices either per-
tain solely to Morrice, found to be a supervisor beyond the
protection of the Act, or were not sufficiently proven and are
therefore dismissed.
5. The unfair labor practices found above affect commerce
as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employer will be directed to cease and desist from
engaging in such conduct and like or related conduct and to
post the attached notice. Respondent Employer has been
found to have violated Section 8(a)(3) of the Act by
discriminatorily discharging employees Presley and Cooper.
Respondent Employer will therefore be directed to offer em-
ployees Presley and Cooper immediate and full reinstatement
to their former jobs or in the event their former jobs no
longer exist to substantially equivalent jobs without prejudice
to their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suffered
by reason of their unlawful firings by making payment to
them of a sum of money equal to that which they normally
would have earned from the date of Respondent’s discrimi-
nation to the date of its offer of reinstatement, less net earn-
ings during such period, with backpay to be computed as
prescribed in F. W. Woolworth Co., 90 NLRB 651 (1950),
and interest as provided in New Horizons for the Retarded,
283 NLRB 1173 (1987). See generally Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). Further, Respondent
Employer will be directed to preserve and make available to
the Board or its agents upon request all payroll records and
reports and all other records necessary to determine backpay
under the terms of this Decision and Order. And, Respondent
Employer will also be directed to expunge from its files any
reference to the disciplinary action and firings of Presley and
Cooper found unlawful here, in accordance with Sterling
Sugars, 261 NLRB 472 (1982).
Respondent Employer has been found to have
discriminatorily laid off its employees and withdrawn certain
privileges. Counsel for General Counsel disclaims any further
need for a reinstatement or make-whole remedy with respect
to the discriminatory layoff. With respect to Respondent’s
discriminatory withdrawal of employee privileges, counsel
for General Counsel seeks an affirmative order directing re-
instatement of the discriminatorily withdrawn privileges as
found above. Respondent Employer will therefore be directed
to reinstate its discriminatorily withdrawn employee privi-
leges of permitting employees to park the Employer’s vehi-
cles at their homes overnight; obtaining their paychecks prior
to 5 p.m. on Fridays; and paying for the repair and replace-
ment of employees’ tools.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Amperage Electric, Inc., Owosso, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge and closedown
of its facility if they selected the Union, Local Union No.
948, International Brotherhood Of Electrical Workers, AFL–
CIO, as their collective-bargaining representative; telling em-
ployees that it would be futile for them to select the Union
as their collective-bargaining representative because the Em-
ployer would not sign a union contract; and attempting to
promote employees out of the bargaining unit because of the
Union’s organizational campaign.
(b) Implementing new rules which no longer permitted
employees to park the Employer’s vehicles at their homes
17AMPERAGE ELECTRIC
21 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
overnight and to obtain their paychecks prior to 5 p.m. on
Fridays; ceasing its practice of readily paying for the repair
and replacement of employees’ tools; laying off unit employ-
ees following the Board-conducted representation election;
and discharging employees because of the employees’ activi-
ties on behalf of and in support of the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer employees Presley and Cooper immediate and
full reinstatement to their former jobs or in the event their
former jobs no longer exist to substantially equivalent jobs
without prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of earnings they
may have suffered by reason of their unlawful firings, with
interest, as provided in this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination or copying, all payroll records,
social security payment records, timecards, personnel records
and reports, as well as all other records necessary or useful
in analyzing and computing the amount of backpay, as pro-
vided in this decision.
(c) Expunge from its files any reference to the disciplinary
actions and firings of employees Presley and Cooper and no-
tify them in writing that this has been done and that evidence
of this unlawful disciplinary action will not be used as a
basis for future personnel action against them.
(d) Reinstate its discriminatorily withdrawn employee
privileges of permitting employees to park the Employer’s
vans at their homes overnight; obtaining their paychecks
prior to 5 p.m. on Fridays; and paying for the repair and re-
placement of employees’ tools.
(e) Post at its Owosso, Michigan facility copies of the at-
tached notice marked ‘‘Appendix.’’21 Copies of said notice,
on forms provided by the Regional Director for Region 7,
after being signed by Respondent’s representative, shall be
posted by Respondent immediately upon receipt in con-
spicuous places, including all places where notices to em-
ployees are customarily posted, and be maintained for a 60
consecutive days. Reasonable steps shall be taken to ensure
that notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the remaining allegations of
the amended consolidated complaint be dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten our employees with discharge and
closedown of our facility if they select the Union, Local
Union No. 948, International Brotherhood of Electrical
Workers, AFL–CIO, as their collective-bargaining representa-
tive; tell our employees that it would be futile for them to
select the Union as their collective-bargaining representative
because we will not sign a union contract; and attempt to
promote our employees out of the bargaining unit because of
the Union’s organizational campaign.
WE WILL NOT implement new rules which no longer per-
mit our employees to park our vehicles at their homes over-
night and to obtain their paychecks prior to 5 p.m. on Fri-
days; cease our practice of readily paying for the repair and
replacement of our employees’ tools; lay off unit employees
following a Board-conducted representation election; and dis-
charge employees all because of the employees’ activities on
behalf of and in support of the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer employees Presley and Cooper immediate
and full reinstatement to their former jobs or in the event
their former jobs no longer exist to substantially equivalent
jobs without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
they may have suffered by reason of their unlawful firings,
with interest, as provided in the Board’s decision.
WE WILL preserve and, on request make available to the
Board or its agents for examination or copying all payroll
records, social security payment records, timecards, personnel
records and reports, as well as all other records necessary or
useful in analyzing and computing the amount of backpay,
as provided in the Board’s decision.
WE WILL expunge from our files any reference to the dis-
ciplinary actions and firings of employees Presley and Coo-
per and notify them in writing that this has been done and
that evidence of this unlawful disciplinary action will not be
used as a basis for future personnel action against them.
WE WILL reinstate our discriminatorily withdrawn em-
ployee privileges of permitting employees to park the Em-
ployer’s vans at their homes overnight; obtaining their pay-
checks prior to 5 p.m. on Fridays; and paying for the repair
and replacement of employees’ tools.
AMPERAGE ELECTRIC, INC.