A/Z Electric, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1986

282 N.L.R.B. 356 (N.L.R.B. 1986)

356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A/Z Electric, Inc. and Kevin Lassonde
A/Z Electric, Inc. and International Brotherhood of
Electrical Workers, Local 35, AFL-CIO, Peti-
tioner. Cases 39-CA-2722 and 39-RC-632
5 December 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 18 August 1986 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions' and a supporting
brief, and the General Counsel filed limited excep-
tions and a supporting brief. The Respondent filed
a brief in opposition to the General Counsel's ex-
ceptions.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge's rulings , fmdings,2 and
conclusions and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, A/Z Elec-
tric, Inc., Ledyard, Connecticut, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
IT IS FURTHER ORDERED that Case 39-RC-632
be remanded to the officer in charge to open and
count the ballots of Terrence Lanier, Kevin Las-
sonde, and Keith Stoll, and to issue a revised tally
of ballots and an appropriate certification.
1. The Respondent has excepted only to the judge's sustaining of the
Petitioner's challenges to the ballots of Thomas Casey, Meade C. Schott,
and Harry L. Schroeder Jr.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence 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 examined the record and find no basis for reversing
the findings.
In sec III,B,4,d of his decision, the judge made reference to "Tempo-
rary Apprentice Identification "cards issued to employees Casey, Schott,
and Schroeder Jr on 28 August 1985. The record reveals that these cards
were entitled "Temporary Apprentice Registration." We correct the
error.
2 The General Counsel has excepted to the judge's failure to include in
his recommended Order a visitatorial clause authorizing the Board, for
compliance purposes, to obtain discovery from the Respondent under the
Federal Rules of Civil Procedure subject to the supervision of the United
States court of appeals enforcing the Order. Under the circumstances of
this case, we find it unnecessary to include such a clause.
Peter W. Gallaudet, Esq., for the General Counsel.
Peter A. Janus, Esq. (Siegel, O'Connor, Schiftt, Zangari, &
Kainen, P. C.), of Hartford, Connecticut, for the Re-
spondent.
Burton S Rosenberg, Esq., of Hamden , Connecticut, for
the Petitioner.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
These consolidated cases were heard by me at Hartford,
Connecticut, on 18, 19, 20, 21, and 24 March 1986. The
charge and amended charges against the Respondent,
A/Z Electric, Inc., were filed by Kevin Lassonde on 1
August, 13 September, and 27 November 1985. A com-
plaint thereon was issued on 27 December 1985, in Case
39-CA-2722. International Brotherhood of Electrical
Workers, Local 35, AFL-CIO (the Union), having filed
a petition for an election on 27 August 1985, an election
was conducted pursuant to a Stipulation for Certification
Upon Consent Election on 8 October 1985. The Union
and the Respondent both filed objections to conduct
claimed to have affected the results of the election. Chal-
lenges to some of the ballots were made by the Union
and by the Board agent who supervised the election. In
Case 39-RC-632, a Report on Objections and Chal-
lenged Ballots was issued on 30 December 1985, which
recommended that certain of the objections, and chal-
lenges be referred for hearing before an administrative
law judge. An order consolidating the cases was issued
on 29 February 1986.
The Allegations of Case 39-CA-2722
The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by threatening to close its
business if the employees selected the Union as their bar-
gaining representative (acting through Edward Lorenz
on 6 March, 21 June, and 26 July 1985),1 and by firing
Keith Stoll and Kevin Lassonde on 28 July because on
23 July they had concertedly complained to the Re-
spondent regarding wages, hours, and working condi-
tions.
The Respondent is alleged to have violated Section
8(a)(1) and (3) of the Act by discouraging membership in
a labor organization through discrimination in terms of
employment, in that the Respondent announced and im-
plemented a $1-per-hour wage increase to all of its em-
ployees on 5 August.
The Respondent's answer denies all allegations of
wrongdoing and statutory violation, alleging affirmative-
ly that about 5 August it granted journeymen, electri-
cians, and working foremen a $1-per-hour increase and
granted apprentices increases in varying amounts up to
$1; and that the allegation of the complaint respecting
the alleged threat of closure by Lorenz on 6 March was
time-barred by Section 10(b) of the Act.
1 All dates hereinafter mentioned are in 1985 except as otherwise
stated.
282 NLRB No. 57
A/Z ELECTRIC 357
The complaint was amended twice at the hearing. One
amendment, to include allegations that around mid-June
1985, the Respondent, acting through Edward Shortoff,
created an impression among its employees that their ac-
tivities were under surveillance and threatened to termi-
nate employees because they, were engaging in union ac-
tivities, was withdrawn at a later stage of the hearing.
The other amendment alleged that on 29 July the Re-
spondent, acting through Lorenz, created an impression
among its employees that their union activities were
under surveillance by the Respondent and interrogated
an employee about his union activities.
Case 39-RC-632: Challenges and Objections
The challenges referred for hearing were by the Board
agent to ballots cast by Richard Elliott, Keith Stoll, and
Kevin Lassonde, on the ground that their names did not
appear on the Employer's eligibility list, and by the
Union, to a 'ballot cast by Terrence Lanier, on the
ground that he was only a casual employee (subsequently
withdrawn), and to the ballots of Robert Wallrich,
Thomas Casey, Harry Schroeder Jr., Meade Schott, and
Harry Schroeder III, on the ground that they were not
licensed electricians or registered apprentices.
All the objections were withdrawn at the hearing
except Employer's Objection 3: that during the election,
unit employees sat in the Employer's parking lot, drink-
ing beer and talking to other unit employees as they en-
tered and as they left the polling area, and that the
Union arranged to have a truck belonging to an employ-
ee who was killed on the job parked in front of the
voting area.
The parties were afforded full opportunity to be heard;
to call, examine, and cross-examine witnesses ; and to in-
troduce relevant evidence. Posthearing briefs have been
filed on behalf of the General Counsel and the Respond-
ent.
On the entire record,2 including my observation of the
demeanor of the witnesses, and after consideration of the
briefs submitted on 'behalf of the respective parties, I
make the following
FINDINGS OF FACT
1. JURISDICTION
There is no issue concerning jurisdiction, the Respond-
ent having admitted in its answer that at all material
times herein it was an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act, and that during the 12-month period ending 30 No-
vember 1985 it received goods and materials valued in
2 On 18 April 1986, pursuant to procedure agreed on at the hearing,
the General Counsel moved for admission into evidence , as G.C . Exhs. 8
through 12 inclusive, of copies of pages of the Norwich Bulletin printed in
the months of June and July 1985 and of pages of the New London Day
printed in the months of June, July , and August 1985, which contained
all the want ads for journeymen electricians and apprentice electricians
printed in the "Help wanted" sections of those newspapers during said
months through 4 August . There being no opposition to the motion and
the proffered exhibits appearing to meet the requirements of Rules 902(6),
10D1(4), and 1003 of the Federal Rules of Evidence, the motion is grant-
ed and the same are admitted into evidence and constitute a part of the
record of these proceedings.
excess of $50,000 at its facility at Ledyard, Connecticut,
from points outside Connecticut. The Respondent also
admitted, and I accordingly find, that the Union is and
has been at all times pertinent herein a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES5
A. The Discharge of Lassonde and Stoll ,
Kevin Lassonde and Keith Stoll are alleged to have
been discharged by the Respondent because they had, on
23 July, "concertedly complained to Respondent regard-
ing the wages, hours and working conditions of Re-
spondent's employees" and because the 'Respondent had
the further object of discouraging employees "from en-
gaging in such activities or other concerted activities for
the purpose of collective bargaining and other mutual aid
or protection."
Respondent is an electrical contractor, incorporated in
Connecticut, wholly owned by Edward Lorenz, presi-
dent, and Thomas Mahoney, vice president. Lorenz' wife
is the corporation's secretary and Edward Shortoff is the
Company's electrical engineer. For the past 13 years, the
Company has worked continuously on jobs for the Pfizer
Chemical ,Company. At the-time of the occurrence of the
events in issue in this case, the Company was working
on a job that involved rewiring starters and interlinking
them with Pfizer's computer system, so that the motors
for different pumps and machinery could be monitored
and controlled by the computer system.
On Tuesday, 23 July, one of Respondent's journeymen
on the job, Robert King, suffered a fatal accident. Re-
spondent's other electricians on the job heard the news
first from Pfizer employees. Shortoff and Robert Buck,
Respondent's foreman , told them that King had been
taken to a hospital but, because they themselves were
misinformed, identified the wrong hospital. Seven of the
electricians (Coleman, Foye, Gonzales, laccone, Las-
sonde, Olsen, and Stoll) decided to go to the hospital.
Buck apparently believing that King had only been in-
jured, tried to dissuade them from leaving the job, but
they left anyway. They went to one hospital only to
learn that King had been taken to another hospital and
that he had died. None of them returned to the job at
Pfizer for the rest of'the week.
On the evening of, the accident, many of Respondent's
personnel visited King's home to express their condo-
lences. Lassonde and ' Stoll came over to Lorenz twice
and on each occasion Lassonde told him that they would
not return to the Pfizer Chemical job unless Buck, the
foreman, was removed from it.
The testimony is in conflict regarding Lorenz' immedi-
ate response . Lassonde and Stoll both testified that he
appeared surprised at their attitude toward Buck,
thanked them for advising him that there was a problem,
8 The matters narrated in this decision without evidentiary comment
are those facts found by me on the basis of admissions in the answer, data
contained in the exhibits , stipulations between or concessions by counsel,
undisputed or uncontradicted testimony, and, in instances where conflicts
in the testimony did not warrant discussion , the testimony that I have
credited.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and promised to look into it. Lorenz testified that he
simply told them that the time and place were inappro-
priate for such a discussion and suggested that they come
into the office to talk about it. I credit Lorenz' testimony
in this regard . It is plausible and consistent with testimo-
ny that Buck was highly regarded by Lorenz, Mahoney,
and some of their prime customers , including Pfizer; that
the first thing Lorenz told the men at a meeting the fol-
lowing Monday morning was that he would not fire
Buck; and that Lorenz, Mahoney, and Shortoff spent a
large percentage of their time visiting the jobsites, which
indicates to me that they did not need to rely on Las-
sonde for information as to what went on there.
Coleman, Olsen, Gonzales, Lassonde; and Stoll visited
the jobsite on Thursday, 25 July, hoping to find out pre-
cisely how the accident had occurred. However, insur-
ance and governmental inspectors were there, and Ma-
honey directed the men to leave. He spoke to them in
the parking lot, but did not say anything to them about
returning to work.
On Friday morning, 26 July, Lassonde and Stoll came
into the office for their paychecks. Mahoney saw Stoll,
and Stoll repeated that they would not return to work
on the job so long as Buck continued to act as foreman
there. Mahoney told him to come in for a meeting on
Monday morning and to notify Lassonde and the others
who had absented themselves from work to come in for
the meeting.
On Monday morning, 29 July, a meeting was held.
Lorenz, Mahoney, and Shortoff met initially with the
seven men as a group. According to Stoll, they were
asked whether they wished to have a common meeting
or private conferences, and the men elected to discuss
matters with management as a group. The discussion
centered about the accident, the burden of the comments
being to the effect that the Pfizer people were responsi-
ble for the accident. Nobody mentioned Buck. Lorenz
and Mahoney then called the men into Lorenz' office in-
dividually for private conferences." Lorenz and Shortoff
4 The general credibility of Lorenz , Mahoney , and Shortoff was im-
paired by the assorted reasons that they furnished for meeting with the
men on 29 July and for having private meetings with them . Thus, one
version was that it was felt necessary to meet with the men in order to
let them talk things out of their system and hear any suggestions they
might have. Mahoney, however, testified that he wanted to warn the
men, before they returned to the site , not to make accusations against the
Pfizer personnel and to leave matters in the hands of the proper investi-
gating authorities . Regarding the manner in which a general meeting
became converted to private meetings , it is to be noted that according to
Respondent's witnesses, they began it as an open meeting but switched to
private conferences because the general meeting was getting nowhere,
the men simply making accusations against Pfizer, while Stoll testified
that the men were offered their choice and elected to meet with Lorenz,
Mahoney, and Shortoff as a group. The explanations offered by Shortoff,
Mahoney, and Lorenz were mutually contradictory: it was felt that in
private conferences it would be easier to get the men to talk about any
problem they had on the jobsites; a private conference was needed with
Olsen to assure him that he would be paid for the 3 days he spent assist-
ing Janice King at Lorenz ' request, which for some unstated reason they
did not want to say in front of the other men; and they did not want to
embarrass Lassonde and Stoll by firing them in front of the other men. I
find it hard to believe that communication with Olsen was that difficult
for Lorenz and Mahoney or that their sensitivity toward Lassonde and
Stoll was so acute.
participated in all the private conferences . After the first
four conferences, however, Lassonde and Stoll were
called in together . As soon as they entered the office,
Lorenz told them that they were "being terminated be-
cause of their refusal to go back to work under Buck.
They became very upset, pleaded that they faced dire
economic hardship as a result of the termination, and
asked for their jobs back . Lorenz told them that that was
not possible because their replacements had already been
hired, but the discharge notices, which originally stated
that 'they were being terminated for refusal to work
under a foreman, were modified to read that they were
laid off for lack of work.
I agree with the assertion of Respondent 's counsel, in
the posthearing brief, that the possibility that another
employer might have shown more leniency to Lassonde
and Stoll does not render Respondent's actions unlawful.
However , the failure to display any leniency or flexibil-
ity whatsoever, considered together with the assertedly
urgent need for journeymen , necessitates careful scrutiny
of the testimony of Mahoney and Lorenz. The result of a
close look is the revelation- of the numerous incongruities
between Respondent's action and the circumstantial con-
text in which it occurred , especially their "need to retain
all of their personnel, and of the numerous contradictions
in the testimony.
First, however , I should note that the activity of Las-
sonde and Stoll , which Respondent cites as the reason
for their discharge, constituted concerted protected ac-
tivity.
The extent to which Lassonde and Stoll spoke for the
other electricians is not established, and the fact that
other men remained away from work does not permit an
inference that Lassonde and Stoll represented their
views . The absence from work of Gonzales and Olsen
was with tacit or express approval of Respondent. Olsen
was asked by Lorenz to take the rest of the week off to
assist King's widow . Gonzales, who had witnessed the
accident and administered first aid to King, was recover-
ing from his own resultant emotional trauma and Lorenz
offered to transfer him to another job. The precise
reason for the absence of the others was not established.
In the discussion that took place in the open portion of
the meeting on the morning of 29 July, Buck's name
never came up.
But Lassonde and Stoll did act in concert with each
other, agreeing on a position and supporting each other.
In unison, they tried to and purported to act for the
other electricians, and there is no question but that their
actions and statements were coordinated. Lorenz testified
that he thought they were acting together; that is why
he fired them together.
Respondent concedes that employees' protest of the
manner in which supervision is exercised and even man-
agement's choice of supervisors is protected concerted
activity, citing Leslie Metal Arts Co., 208 NLRB 323, 326
(1974), but argues that Buck was not a supervisor and
that the activity did not relate to matters having a direct
impact on the employees ' job interests , citing Phase, Inc.,
263 NLRB 1168, 1170 ( 1982), and Quality CA. TV, 278
NLRB 1282 (1986). The General Counsel concedes, in
A/Z ELECTRIC 359
her posthearing brief, that Buck was not a supervisor,
but argues that by virtue of Buck 's duties as a foreman
he had a direct impact on Respondent's employees' job
interests and their ability to perform and that the com-
plaint they made to Lorenz was "about Buck's handling
of King's fatal accident." I agree with the General Coun-
sel. The evidence is substantial that Buck 's activities had
an impact on the performance of their work duties; he
was a working foreman and performed numerous func-
tions that interacted with the work of the men. Leslie
Metal Arts concerned itself primarily with the "quality of
supervision and the manner in which it is exercised."
The reference was to "the banding together of employ-
ees to protest the way in which supervision is exercised."
The walkout was an effort to communicate with
Lorenz and Mahoney. The administrative law judge in
Leslie Metal Arts noted that it is not unusual for an unor-
ganized group of employees acting jointly without a des-
ignated bargaining representative to articulate the cause
of the walkout differently, but that "implicit in the action
of all the employees who left was an appeal to manage-
ment to do something." (208 NLRB at 326.) In the
present case there is no real question of the propriety of
the means employed by Lassonde and Stoll to communi-
cate with Respondent. Withholding of work is a well-
recognized "permissible form of protest" that is distin-
guishable from merely ignoring rules and directives "in
direct defiance of the direction and warnings of manage-
ment." Bird Engineering, 270 NLRB 1415 (1984).
With respect to the cases cited by Respondent, I find
Keyway inapposite and Quality C.A.T.Y. to be supportive
of the General Counsel's position. The complaint made
by Lassonde and Stoll related to what they alleged to be
the personal insensitivity of Buck, as they perceived it, in
trying to keep the men on the job after King was known
to have been injured and taken to a hospital. This con-
duct was similar to that of the two linemen in Quality
C.A. T. V.., who refused to obey an order to return to
work after a downpour because the lines were wet; it
was held that "Protest over this employment condition
was protected whether Boyle and Reners acted because
they were concerned about their safety, their personal
comfort, or their supervisor's attitude" (278 NLRB at
1282). The Board drew attention to NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962), in which it was held
that the reasonableness of workers ' decisions to engage
in concerted activity is irrelevant; concerted activity to
increase creature comforts or decrease discomfort falls
within the scope of Section 7 of the Act.
In Dreis & Krump Mfg., 221 NLRB 309 (1975), enfd.
544 F.2d 320 (7th Cir. 1976), it was held that an employ-
ee's complaint was not required to be either wise or mer-
itorious. It is sufficient for two employees to be acting
together to effect "concert." Fair Mercantile Co., 271
NLRB 1159, 1162 (1985), enfd. mem. 767 F.2d 930 (8th
Cir. 1985).
I note, however, that though the reasonableness of the
complaint underlying concerted protected activity is not
a criterion of whether activity is concerted and protect-
ed, in the present case it is apparent that the fact that the
work force was in a state of emotional disarray was ap-
parent to Lorenz, and he anticipated that some account
had to be taken of it. Among the indications that he rec-
ognized this were the arrangements he made with Olsen,
his discussion with Gonzales about going to a different
jobsite, and the testimony of Mahoney that one of the
purposes of the meeting called for the morning of 29
July was to have a talk with the men before they went
back to work at the Pfizer jobsite.
The facts in Keyway, in which it was held that the
General Counsel had failed to meet her burden of estab-
lishing that a walkout was concerted protected activity,
were not comparable to the facts of this case. A walkout
had resulted in that case because a project director had
been discharged, but the record was barren of evidence
that the identity and capability of the supervisor in-
volved had any direct impact on the employees' own job
interests . In the instant case , it was precisely the asserted
effect of the attitude of the supervisor in question on the
morale of the employees that caused the walkout. Las-
sonde and Stoll complained that morale was low as a
result of the way Buck handled the men. Employee com-
plaints about a supervisors' treatment of them constitute
concerted protected activity. Noland Co., 269 NLRB
1082, 1088 (1984), citing Calvin D. Johnson Nursing
Home, 261 NLRB 289 fn. 2 (1982).
However, there is abundant evidence that tends to
show that there were additional and more important rea-
sons for their discharge.
Stoll testified that before he was interviewed for his
job he had tried unsuccessfully to get into the Union,
and that Lorenz had told him to apply to A/Z when he
was sure that he was not going to get into the Union and
was sure he wanted to remain with Respondent. He was
interviewed by Lorenz on 7 June. Stoll's account of this
interview contained numerous specific details that en-
hanced its credibility. In the main, he testified that
Lorenz brought up Stoll's efforts, a year before, to orga-
nize another nonunion contractor, NECO Electric, by
helping Local 90, IBEW, to lure its journeymen electri-
cians away to another contractor. About 20 journeymen,
including Stoll himself, left the NECO job on the basis
of a promise by the business representative of Local 90,
IBEW, that they would be put to work on a more lucra-
tive job and would achieve membership in the Union.
They got the work, but not the membership, and that
was the aspect of the matter that Lorenz questioned Stoll
about. Stoll testified that Lorenz made a number of an-
tiunion statements, starting off the interview with a state-
ment, "I know your background, and if you're here to
organize my shop and get a union in here, I'm going to
close the doors." Only after Lorenz extracted a promise
from Stoll not to try to organize A/Z Electric did he get
down to a discussion of the job, the pay, and the bene-
fits.
Kevin Lassonde was one of the journeymen who aban-
doned NECO as a result of Stoll's efforts. He later ob-
tained a second job through the hiring hall of Local 90,
IBEW. He had worked for Respondent once before and
called Respondent when he was laid off from the second
union job. He testified that Lorenz made remarks to him
in his job interview similar to the remarks attributed to
Lorenz by Stoll. The interview took place in March,
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Mahoney present . Lorenz stressed the point that if
he hired him back, he did not want him running off to a
job obtained through the Union:
He said if I hire you back, Kevin, I don't want
you to leave and go-if the union calls you back. I
don't want you to go running off to them. I don't
want to hire you back and then have you leave in a
couple of months.
Lassonde promised to remain with Respondent. He
quoted an additional portion of the conversation:
Q. What if anything did he say? Do you recall
anything else that was said?
A. Oh, yeah. After he got that out he said if you
are here to organize my shop, I'll close my doors.
Though some prodding was needed to elicit the critical
statement just quoted , nothing in the witness ' demeanor
or the rest of his testimony impels me to discredit his tes-
timony that such a statement was made by Lorenz.
The union backgrounds of Stoll and Lassonde were
thus well known to Respondent's principals. Mahoney
and Lorenz testified that nothing about unions was dis-
cussed in the employment interviews, but 'I do not credit
the denial . Credible evidence of similar remarks made
during the private conferences on 29 July shows that
such discussions were well within the bounds of proba-
bility. Over all, the testimony of Lassonde and Stoll ap-
pears credible to me. Lorenz, of course, did not deny
knowledge of the union backgrounds of these two men.
The General Counsel also introduced evidence that
Respondent believed that union organizational attempts
were underway at the time Lassonde and Stoll were
fired. The scantiness of evidence respecting the actual in-
volvement of Lassonde and Stoll in union activity is of
no importance, inasmuch as the Act was violated if
Lorenz and Mahoney acted in the belief that they were
involved in activities protected by the the Act.
Lorenz at first testified that he became aware of union
activity on 6 August, when Mahoney showed him a
copy of the charge in these proceedings filed by Las-
sonde and that later in August he became aware that the
Union had filed a petition. Then he conceded that as
early as the week of King's accident (the week of 22
July) he had heard that cards were being distributed, but
he did not know by whom. He was uncertain how or by
whom he had been alerted to it, but he was sure that he
heard about it within a week's time after King's death
("it was all around ... that the cards were being
signed").
Later, when attention in the hearing was focused on
the pay raise of 5 August, Lorenz denied knowledge of
union activity prior to 29 July and professed to be unable
to fix the date until he became aware of it in relation to
King's death. He then claimed that he had no knowledge
of it until after the wage increase was granted on 5
August, finding out about it when Mahoney told him
that another contractor (Crompton) had telephoned to
inquire whether A/Z Electric was really going union.
However, Mahoney himself fixed the time of that tele-
phone call as during the week of 22 July.
Mahoney testified that Jim Crompton, an electrical
'contractor, called him during the week in which King's
accident occurred:
He said well I had a guy stop in here that said
you guys are going to go union ... He said some-
thing to the effect if-he said I didn't think you
guys were going crazy down there.
Mahoney was extremely vague, if not evasive, about
when he communicated this intelligence to Lorenz. He
testified that he interpreted Crompton's statement that he
might come down to read the riot act to them in a rather
peculiar way: "I gathered from what he was saying that
he was going to tell me some negative things about being
a union contractor. That is the way I took it." He pro-
fessed not to have been furnished any details by Cromp-
ton. I found his professed naivety about the phone call
altogether incredible.
Significant evidence of Respondent's knowledge of
union activity at that time is provided by the testimony
of two employees that Lorenz interrogated them about it
during the private conferences on 29 July. Interrogation
of this nature is evidence of an employer's knowledge or
suspicion of union activity. Flowers Baking Co., 240
NLRB 870 (1979), enfd. mem. 620 F.2d 298 (5th Cir.
1980). The testimony is especially significant and credible
because it came from employees who were not in trouble
on account of their absence from work the preceding
week. David J. Gonzales, who remained away from
work with Lorenz' tacit consent because he had under-
gone the emotional trauma of witnessing King's accident,
testified that Lorenz asked him if anyone had ap-
proached him,to sign cards or whether he had heard
anything about the Union. When he responded in the
negative, Lorenz commented that everyone else seemed
to have been approached.
Daniel L. Olsen, who was given the rest of the week
off by Lorenz to assist Janice King, the widow, testified
that during his private conference on 29 July Lorenz said
that he had heard from somebody at Pfizer "that there
was talk of A/Z, going union." Olsen responded that he
had not heard anything. Lorenz then remarked "that
A/Z had somewhat of an understanding with its custom-
ers that it was going to operate a non-union shop just
due to the fact that that was how it was going to be
run.,,
Additional corroboration is to be found in the testimo-
ny of Lance S. Schors, hired as one of the replacements
for Lassonde and Stoll on 26 July. The threat of closure
made to him during the interview, described below, dem-
onstrates Lorenz' and Mahoney's concern about union
activity at'L that point in time. It also lends support to
Lassonde's and. Stoll's testimony that they were similarly
interrogated during their employment' interviews.
The General Counsel also introduced evidence tending
to show disparity of treatment of Lassonde and Stoll as
compared with the others who had remained away from
work. Of course, a showing of disparity of treatment
must be based on identical conduct on the part of the
employees who are claimed to have been treated differ-
ently, and in this case there is some basis for differentia-
A/Z ELECTRIC
Lion. Of the seven , men who remained, away from' work
in the 3 days following 23 July , only Lassonde and Stoll
repeatedly asserted that, they would remain away from
work so long as Buck remained foreman on the Pfizer
Chemical job . Respondent's official reason for the dis-
charges is their refusal to work under a foreman.
The disparity, however, exists because until the private
conferences were held on the morning of 29 July, there
was no way of knowing whether the men would contin-
ue to remain off the job as a group . The situation that
existed was that a group of men refused to return to
work at a jobsite . Lassonde and Stoll were members of
that group . The other members of the group were given
the option of returning to work or being fired . Thus,
Coleman testified that almost the entire meeting he had
with Lorenz , Mahoney , and Shortoff was taken up 'with
his being given the option to quit or return to work. Las-
sonde and Stoll were not given that option and were not
even given separate conferences.
Such conferences presented an opportunity for Lorenz
and Mahoney to probe the nature of the complaint
against Buck, which Mahoney professed to want . He tes-
tified that he and some of Respondent 's prime customers,
including Pfizer, had a high regard for Buck. He thought
Lassonde was also competent . He testified that "we cer-
tainly would have been interested in those objections."
Nevertheless, though confronted with a situation in
which one ,competent electrician had had a fatal accident
and another competent electrician was refusing to return
to the jobsite unless a highly regarded foreman was
changed, Mahoney made no inquiry of either Lassonde
or Stoll when they were right in front of him, made no
investigation of any kind into the complaint , and did not
even ask Lorenz if Lorenz had looked into it . In fact,
therefore , it appears that Lorenz and Mahoney had not
the slightest interest "in those objections"
I find this all the more astonishing in view of the
uniqueness of the situation . Mahoney was sure that there
had been some prior occasion when an electrician had
been fired, but he was unable to remember the last time
it had happened or name anyone who had ever been
fired or cite a single instance that had occurred in the 2
years prior to the hearing. In any event, there had been
no prior instance of a competent electrician refusing to
work under 's competent foreman.
In spite of this, Lorenz and Mahoney were completely
inflexible. Mahoney was at an utter loss to explain Re-
spondent 's inflexibility in the matter in the face of evi-
dence that , all things being equal, it was to Respondent's
advantage to reconsider when Lassonde and Stoll both
said they were willing to work unconditionally. He as-
serted, "The decision was final." He pointed to the fact
that the replacements for them (DiMauro and Schors)
had been hired on Friday afternoon , 26 July. This was at
a time when, according to his own testimony, the short-
age of journeymen was acute, they were worried about
men being stolen away by the competition, and they be-
lieved they were likely to be the successful bidder on a
large project at Dow Chemical . However, Mahoney
concedes that the possibility of keeping the men on with
a warning was not even considered. When I asked Ma-
honey why, in view of the critical need to retain person-
361
nel; which had compelled them to advertise and which
ultimately compelled them to grant a pay increase, they
did not warn Lassonde and Stoll and keep them on, I
elicited this altogether unsatisfactory response:
We felt that-I'm going to use the word , we felt
an ultimatum had, been given and that sufficient
time had passed that they had taken no action to
come in as Mr. Lorenz had requested they do and
talk about it further , discuss it, say what was on
their mind.
Such an explanation is unpersuasive in the face of the
failure , of Lorenz and Mahoney to avail themselves of
the opportunity to question Lassonde and Stoll in the
meeting on the morning of 29 July, under circumstances
in which the need for such an inquiry would seem to
have been pressing.
Even on so simple a matter as the time when the deci-
sion to fire Lassonde and Stoll was supposedly made,
their testimony is inconsistent and wavers between inco-
herence and some kind of assertion that they thought
Lassonde and Stoll were quitting.
According to Lorenz and Mahoney, the firing was a
process that took place on Friday , 26 July, and Monday,
29 July . It is not clear from their testimony precisely
when a firm decision crystallized . On Friday morning,
Stoll and Lassonde came in for their paychecks , appar-
ently at different times . Stoll told , Mahoney that they
would not go back to work so long as Buck was still
running that job . Mahoney told Stoll to come into the
shop' on Monday morning and to pass the word along to
others as well. At lunchtime he told Lorenz of his con-
versation with Stoll . He testified:
At that point we both agreed that we would dis-
charge them and hire replacements because we
needed them for the workload . We needed people
down there. It wasn't going to be easy for us to lose
someone at that point, quite honestly.
At the same time , Mahoney professed to have believed
that Lassonde and Stoll intended to quit:
I, quite honestly , Monday morning did not expect
to see the two individuals come in the door. We
had many many instances in the past where people
have just not shown up to work; there's been no of-
ficial termination after a week or two with a guy
not coming in, you say I guess he's not coming
back and we've never given him a layoff slip.
I thought that that was , what was going to
happen.
Lorenz, however, testified that the decision on Friday
was only tentative, a preliminary decision. Lorenz testi-
fied:
Q. What kind of decision was made on Friday
with respect to the discharge of these two individ-
uals?
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. When-Friday, my partner, Tom, had told me
when Keith had came in to pick up his pay check,
that he-he said he would not be back to work, him
and Kevin would not be back to work unless Bob
Buck was discharged.
Q. All right. When you obtained that informa-
tion, what did you do?
A. Then we were making decisions to let-well,
I didn't-I didn't believe they'd be back.
Q. All right. You didn't believe they'd be-
A. I didn't really believe they were coming back
to work, so the final decision was made Monday
morning when we seen them, yes, they are here;
yes, we are going to let them go, but I never ex-
pected to see them because this is what I was told
by them, that they would not be back.
When asked by the General Counsel what reason he
gave Lassonde and Stoll for firing them on Monday,
Lorenz testified:
I told them they were being discharged because of
refusal to come back to work for the company
unless Mr. Buck was-was discharged, and also that
we had hired two replacements' for them.
Shortoff testified, "We told them we were laying them
off, for refusing to work for a foreman."
Lorenz and Mahoney thus presented a highly uncon-
vincing description of a decision-making process in
which a clear cause for discharge was felt to exist but
matters were left hanging on the supposition that Las-
sonde and Stoll would never show up again for work,
though both of them were actively protesting the pres-
ence of Buck on the job. This'kind of inherently implau-
sible story inevitably prompted the further question
about why, if Mahoney and Lorenz were surprised to see
Lassonde and Stoll on Monday morning, and Lassonde
and Stoll sat through a general meeting and then waited
to be called in for individual meetings in Lorenz' office,
it did not occur to Mahoney and Lorenz that they had
not quit after all. Mahoney's response was uninformative,
merely repeating that the decision to terminate them had
been made and the thought of reconsidering did not
enter their heads.
In fact, even after hiring DiMauro and Schors on
Friday, 26 July, as replacements for Lassonde and Stoll,
Respondent could have kept the latter two men on, for
two electricians were hired on Monday, 29 July, the
same day Lassonde and Stoll were fired.
As Mahoney indicated, the, refusal to keep them on de-
spite their manifest change of heart, which in a way
amounted to a request to be given the same options
granted to the others , came at a time when Respondent
could ill afford to lose any of its journeymen. The Gen-
eral Counsel has established that fact' very clearly
through the testimony' of both Lorenz and Mahoney.
Lorenz testified that as of the first of August the work-
load was heavy and Respondent had more than the aver-
age number of electricians working, possibly as many as
32. Even when one of the seven pending jobs at Pfizer
was completed he only laid off seven electricians. At the
end of August there were still 26 journeymen working
and 6 jobs continuing at Pfizer alone . Shortoff testified
that besides'the jobs running at Pfizer, they had to meet
a strict Labor Day deadline at Electric Boat in Groton,
Connecticut, and that there was work in progress at
Dow Chemical. -
Mahoney testified that during this period, late July and
early August, the workload was heavy and there were
short-term contracts and one big job pending at Pfizer.
Overtime was needed at Pfizer's citric automation
project because of special scheduling resulting ' from a 3-
week general shutdown at Pfizer scheduled to begin 1
September . They left a dozen men on that job during
August. Respondent's workload started to get heavy be-
cause of new contracts secured in May, and continued to
increase through June and into early, July. Respondent
increased its hiring throughout June and July, taking on
18 or 19 journeymen. Even though several employees
left during this period, the total complement increased.
Over and above this, Lorenz, Mahoney, and Shortoff,
throughout July, operated on the assumption that they
would soon need many more journeymen because they
anticipated getting a big' job. Throughout the summer
they had worked on a bid for Dow Chemical's latex ex-
pansion project, receiving the bid package in June and
submitting their bid on 22 July. Mahoney and Lorenz
testified that'they had heard rumors from several sources
to the effect that Respondent might be the successful
bidder. Shortoff testified that he heard it from three sep-
arate sources and told Lorenz what he had heard. In late
July, Lorenz and Mahoney believed that Respondent
was the front runner . Throughout this' period, and
before, Respondent had been running a continuous ad for
journeymen in the local press. The competition was also
advertising. In fact, both Schors and DiMauro, who
were hired as the replacements for Lassonde and Stoll,
had responded to ads. Lorenz later testified that some
people were let go in August, that the Dow Chemical
rumors were not nearly as strong anymore, that a job at
Electric Boat was ending, and that the job with the
Labor Day deadline was'drawing to a close. However,
that was. late in August; at the time with which we are
concerned, late July, they felt a desperate need for jour-
neymen.
Mahoney testified that he was anxious to avoid losing
men and that it was important that they keep every man
because of their critical commitment throughout August
to finish one job by 1 September, maintain the normal
workload, and be prepared if the Dow Chemical bid was
successful. He routinely looked at the newspaper ads to
see what the competition was doing about attracting
journeymen. The word "on the street" was that. NECO
was paying, $14 an hour, which was -higher than Re-
spondent's rate, and Westco, another nonunion contrac-
tor, had once before succeeded in luring away two of
Respondent's employees.
The need to keep their men was so critical during this
period, according to Lorenz and Mahoney, that on 4
August they decided to give the men a pay raise effec-
tive as of 5 August.
A/Z ELECTRIC 363
Mahoney's testimony was characterized by tension-
laden statements such as,
Well, naturally we knew the past history of about a
year earlier where someone was paying higher
wages and we lost a couple of guys before-I use
the term put our finger in the hole in the dike-so I
was particularly looking not to see that happen
again.
His justification for the increase granted on 5 August
was as follows:
That heavy workload mandated that we make a
major effort to keep every employee that we had
working. If we lost a couple, normally we would
start working some overtime to compensate for
that.
We were already working overtime. We knew that
we had this extremely critical commitment through-
out August to get done by the first of September
and added into the rest of our workload, that cre-
ated the business picture in our mind that we had to
keep every man that we had that we could keep.
Whether the conduct of Lassonde and Stoll merited
discharge in the opinion of Lorenz and Mahoney, the re-
fusal of Lorenz and Mahoney to change their minds
when Lassonde and Stoll changed theirs is, in the light
of the general situation as they themselves described it in
their testimony, suggestive of deeper reasons for their ac-
tions than they gave. Their explanation for - the dis-
charges depicts an implausible scenario that requires me
to believe that they discharged competent, electricians
,who wanted to return to work on their terms, in a time
of acute personnel shortage, without warning and with-
out the option extended to other absentee electricians to
return or be fired.
The Respondent has presented very little to counter-
balance the evidence that Respondent knew of Las-
sonde's and Stoll's background of union adherence and
support; that it knew or suspected that union organiza-
tional activity was taking place before they were fired;
that Respondent's principals were strongly committed to
the maintenance of a nonunion shop; that the discharges
took place at a time when Respondent could ill afford
the loss of any of its journeymen electricians; and that
the discharges were in marked contrast with the option
afforded other absentees to return to work, though both
Lassonde and Stoll recanted and asked to be permitted
to return to work.
This showing leads me to conclude that Respondent
discharged Lassonde and Stoll chiefly in order to dis-
courage union activity among the employees and in
order to remove two known union adherents, in viola-
tion of Section 8(a)(3) and (1) of the Act.
My conclusion in this regard does not, of course, de-
tract from the prima facie case made by the General
Counsel, especially since Lorenz and Mahoney them-
selves sought to excuse their conduct on the very ground
that Lassonde and Stoll had refused to work under Fore-
man Buck, disputing only that their refusal constituted
protected concerted activity. I have found that it was
protected activity. Absent the testimony of Lorenz and
Mahoney, the evidence convinces me that the union ac-
tivity of Lassonde and Stoll is what prompted Respond-
ent's discharge of Lassonde and that had it not been for
that, Lorenz and Mahoney would have allowed them to
go back to work. However, the concession by Lorenz
and Mahoney of the basic facts alleged by the General
Counsel compels me to find that the concerted protected
activity in which Lassonde and Stoll engaged was an ad-
ditional reason for their discharge.
All the facts and circumstances of the discharges and
the reasons for the discharges were fully litigated. Ac-
cordingly, although the complaint is limited to an allega-
tion that the discharges were in violation of Section
8(a)(1), I find, that the,Respondent, by reason of the cir-
cumstances disclosed by the evidence, is also in violation
of Section 8(a)(3) of the Act.
B. The August 5 Pay Raise
The General Counsel contends that Respondent violat-
ed Section 8(a)(1) and (3) of the Act by announcing and
implementing a $1-per-hour wage increase for all its em-
ployees because it was motivated by reports that indicat-
ed that union organizational activity was being carried
on.
Respondent thus contends that the decision to grant a
pay raise on 5 August was a lawful measure taken to
retain its work force in a peak business period, citing
Schulte's IGA Foodliner, 241 NLRB 855 (1979), and Poul-
try Packers, 237 NLRB 250 (1978). However, in Poultry
Packers, the employer proved that it granted 'the increase
in order to halt a slide in the quality of the employees'
work, while Respondent in the present case announced
to the employees that they were being given a pay in-
crease as a reward for the high quality of their work. In
the Schulte's case, the employer proved the existence of a
well-established policy of periodic pay increases and pro-
vided detailed information about the pay scales of its
competitors, while Lorenz and Mahoney were, only able
to point to 1 year, 1984, as a precedent and had to admit
that on that occasion not everyone had received an in-
crease as they had at first claimed. They utterly failed to
back up their contentions about the wages paid by their
competitors and instead admitted that they had no reli-
able information on the subject.
In the present case, Lorenz and Mahoney got wind of
the union activity in the week of 23 July and were busily
interrogating employees about it on the morning of 29
July. By sometime prior to 5 August, Lorenz, knew A/Z
employees were signing union cards, admitting that he
heard about it about the time King died. Immediately
thereafter they instituted the increase- See Litton Indus-
trial Products, 221 NLRB 700, 701 (1975).
'The infirmities in Respondent's defense to this charge
are twofold.
In the first place, even if I credited Respondent's justi-
fication for the increase as a measure to keep journeymen
from leaving its employ to work for its competitors, Re-
spondent has still failed to justify the timing of the in-
crease . See NLRB v. Pandel-Bradford, Inc., 520 F.2d 275,
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
280 (1st Cir. 1975), enfg. 214 NLRB 736 (1974), holding
that even if business reasons warrant an increase, the
timing may be a violation of the Act, and that granting
benefits ' during the pendency of a representation election
is prima facie case of intentional interference with Sec-
tion 7 rights. Such action is thus presumptively for the
illegal object of improperly influencing the employees.
NLRB v. Exchange Parts, Co., 375 U.S. 405 (1964); Wm.
T Burnett & Co., 273 NLRB 1084 (1984).
The same rationale applies here . Respondent granted
the increase before the Union filed its petition but well
after it knew or suspected that the Union was attempting
to organize its shop. Its action was manifestly in response
to the union campaign . I cannot accept Respondent's
contention . that the decision to grant the increase was
made prior to knowledge of the campaign, such knowl-
edge having been obtained only by service of the
Union's petition , for it is conceded that information
pointing to union activity was received during the week
of King's death (the week of 22 July) and it is conceded
that the decision to grant the increase was thereafter
made on Sunday afternoon, 4 August. See Montgomery
Ward & Co., 220 NLRB 373, 374 (1975), modified and
enfd. 554 F.2d 996 (10th Cir. 1977).
The presumption of illegality of an increase granted
during a campaign is reinforced when a period of lethar-
gy is followed by decisional acceleration respecting ques-
tions of employee, benefits. Supermarkets General Corp.,
260 NLRB 167, 169 (1982). The' Board has put, the
burden on the employer:
A grant or promise of benefits made during an
organizational effort will be considered unlawful
unless the employer can provide an explanation,
other than the organizational activity, for the timing
of the grant or announcement of such benefits.
Thus, the Board requires that an employer show by
objective evidence that it would have made the
same grant or announcement of benefits had the
union not,been present. [Village Thrift Store, 272
NLRB 572 (1983).]
Secondly, the Respondent failed to justify the increase
on the basis of business exigencies.
There is, of course, an irreconcilable conflict between
Respondent's defense to the charge that it fired Lassonde
and Stoll unlawfully and its defense to the charge that it
granted an unlawful wage increase on 5 August. If Re-
spondent was so harried by the personnel situation that it
felt that an across-the-board wage increase was ,necessary
in order to keep its journeymen, then discharging Las-
sonde and Stoll for the reason relied on by Respondent
in this case did not make much sense. Though that
helped me considerably along my way to the conclusion
that the reason offered by Respondent for discharging
them was not the main reason for its action, it does not
require me to credit Respondent's excuse for granting
the wage increase . The credibility gap does not compel
acceptance' of either position.
The story given by Lorenz and Mahoney-that the in-
crease was given because of the state of the labor
market, heavy newspaper advertising for journeymen by
competitors, the heavy workload at Pfizer Chemical, and
the fact that the competition was already paying $14 per
hour compared with Respondent's $13-seemingly co-
herent and plausible, is in truth a patchwork of inconsist-
encies and contradictions. The inconsistency between the
Respondent's asserted need to retain journeymen and the
failure of Lorenz and Mahoney to be flexible when Las-
sonde and Stoll begged to be allowed to work is only the
most obvious of the difficulties inherent in their story.
Under adverse questioning by the. General Counsel,
pursuant to Fed.R.Civ.P. 611(c), Lorenz contradicted
himself by testifying at one point that the decision to
raise the pay was arrived at the day before, on Sunday, 4
August, when he and his partner and brother- in-law, Ma-
honey, pondered a rumor that they were the low bidder
on the Dow Chemical job and realized that they would
have to raise wages in order to keep their journeymen (a
version also testified to by Mahoney); and, at another
point in his testimony, that the low bid had nothing to
do with it; and, at yet another point in his testimony,
that it had some bearing on the decision.
There was confusion about the company policy re-
specting pay increases . It was asserted that a pay raise
had been given in similar circumstances in 1984 to every-
body, but, as I have pointed out, in the sole example
cited by Respondent, the increase was shown to have
been limited to foremen and some of the journeymen.
Though it was claimed to have been for the purpose of
keeping journeymen from defecting to better-paying
competitors, not all the journeymen got the raises. More-
over, the supposed impetus for the action at that time,
the defection of a journeyman, proved not to have been
the case, for it was an apprentice who went over to the
competition, and no apprentices were given raises at that
time.
Even if the story held up, and an across-the-board in-
crease had been given in 1984 to journeymen, the fact re-
mains that not every journeyman got it in 1985. Re-
spondent's failure to adhere to its professed wage policy
would therefore still bring the existence of any such
policy into serious question. See Montgomery Ward &
Co., supra.
The circumstances under which Lance S. Schors was
hired and review of the newspaper advertisements that
were run for journeymen during the period in question
altogether demolish Respondent's asserted justification
for the increase. Schors was hired at $12 per hour after
stiff negotiations,, with .an agreement to raise him to the
$13 per hour being paid to the journeymen already
working for Respondent. At that time, the competition
was supposedly paying $14 per hour and advertising for
journeymen. Lorenz and Mahoney therefore do not seem
to have been at all worried about covering their commit-
ments when Schors applied on 26 July. Moreover,
Schors' acceptance- of the arrangement suggests that the
market conditions were not as claimed by Respondent.
At the time of the hearing, when Lorenz and Ma-
honey testified with respect to the supposedly frenetic
advertising for journeymen in the help-wanted sections
of the two local newspapers, copies were not available.
A/Z ELECTRIC
They are now in evidence, 5 and it is 'obvious that, they
could not have been a factor in the decision to grant a
pay increase . In fact, they strongly rebut the contention
that Lorenz and Mahoney thought that a pay raise was
needed to keep the work force intact and attract new
men for the Dow Chemical job on which Respondent
had bid.
Two newspapers were involved , the Norwich Bulletin
and the New London Day . A tabulation of the newspaper
ads run during the months of June and July is as follows:
Week of No. of Ads Ads by A/Z
Ads by
NECO
June 1 ...........:....... 4 0 0
June 2-8 ............... 38 5 1
June 9-15 ............. 29 9 5
June 16-22 ........... 22 8 2
June 23-29 ........... 16 3 0
June 30-July 6 ..... 19 0 0
July 7-13 .............. 20 0 0
July 14-20............ 15 0 2
July 21-27............ 29 0 1
July 28 Aug . 3 .... 12 0 1
The foregoing tabulation simply lists advertisements
run in the help-wanted sections of the two newspapers;
in many cases , ads were run simultaneously in both
papers by the same advertiser , and frequently an adver-
tiser ran the same ad for several days . Approximately
four advertisers seem to have been involved in placing
all the ads. However, because it shows the briskness or
lack of briskness in advertising over the entire period,
the tabulation gives a good indication of the intensity of
the demand for journeymen at various points in time. It
is very obvious that demand had slackened throughout
the month of July and, in fact, had passed its peak and
declined precipitously after the middle of June. 6
It is noteworthy that the upsurge in demand in 1 ' week
in July was during the week that Lassonde and Stoll
were fired , and the lowest point of the summer was
reached in ' the , week preceding the 5 August pay raise.
Accordingly, I find that the pay raise annonuced on 5
August violated Section 8(a)(1) and (3) of the Act.
5 The parties were granted leave to submit , for incorporation in the
record after the conclusion of the hearing, copies of pertinent advertise-
ments that were run in the local newspapers in June , July, and August.
There being no opposition , the General Counsel's motion to admit photo-
copies of the help -wanted section of two newspapers as G.C . Exhs. 8
through 12, inclusive , as all the advertisements run in the period is grant-
ed and the same are made part of the record herein.
6 The General Counsel's summary of the ads has not been controvert-
ed by the Respondent and is to the following effect : Respondent appears
to have been the heaviest advertiser m the Norwich Bulletin in June and
July, but there appear to have been more ads from all the companies in
the field in June than in July, and the amount of advertising diminished
as the month of July wore on. NECO, the competitor Respondent claims
to have been most concerned about , ran six ads in June and only two in
July, neither of which was at the end of the month . In July, Respondent
was the heaviest advertiser in the New London Day, NECO placed only
one ad that month, on 27 July. Most of the advertising in that newspaper
was placed in the first 2 weeks of June. There were no ads at all for elec-
tncians on the first 2 days of August.
C. Threats to Close the Business
365
It was alleged and proven that on 6 March, 21 June,
and 26 July, Lorenz made threats to employees to the
effect that Respondent would close the business if a
union became the employees ' collective-bargaining repre-
sentative.
Such threats were made to Lassonde on 6 March, and
to Stoll on 21 June, in the course of their job interviews
with Lorenz, and demonstrated Lorenz ' union animus as
well as his knowledge of, and concern with, their history
of past union activity.
The threats of closure on 26 July were made during
the course of Lorenz ' interviews of Lance S . Schors and
Vincent DiMauro , who were being hired as the replace-
ments for Lassonde and Stoll . It stands to reason that
Lorenz and Mahoney did not intend to repeat their expe-
rience with Lassonde and Stoll . Schors testified that his
interview took half an hour, but before Lorenz said any-
thing about the job or reviewed his qualifications 'he
mentioned Schors' record of employment with union
contractors "and he wanted to make ' it perfectly clear
that no one was going to unionize his shop and that if
they did attmept that, he would close his doors." Di-
Mauro testified that Lorenz commented on the fact that
the Union could offer better benefits and higher wages
than Respondent could afford, and that if DiMauro had
the opportunity to get into the Union he should go, but
that if DiMauro was there to organize the Union he
would shut the doors.
Lorenz' statements on all four of these occasions were
in violation of Section 8(a)(1) of the Act. The Respond-
ent contends that the allegation of a threat of closure on
6 March is time-barred under Section 10(b) of the Act.
The charge filed by Lassonde on 1 August alleged viola-
tion of Section 8(a)(1) and (3) of the Act by reason of
the discharge of Lassonde and Stoll on 29 July. The
charge was amended to include an allegation that an un-
lawful wage increase had been granted on 5 August. The
charge relating to the incident on 6 March became part
of the case when Lassonde filed a second amended
charge on 26 November , alleging the discharges, the pay
raise, and threats of closure on ,6 March , 21 June, and 26
July.
The amendment of the charge to include the 6 March
violation is permissible . It is closely related to the mat-
ters previously charged, which are within the permissible
statutory period, and is of such'a nature as not to change
the substantive nature of the charge. It does not give rise
to a new and separate cause of action unrelated to the
unfair labor practice ' originally alleged. NLRB v. Os-
brink, 218 F.2d 341, 345-347 (9th Cir. 1954).
D. Interrogation and Creation of Impression of
Surveillance
Gonzales testified that in his private session with man-
agement on 29 July, Lorenz asked him if he had been ap-
proached to sign a card for the Union . Gonzales denied
having been approached and' said he had not heard any-
thing about the Union. According to Gonzales , Lorenz
then "said everyone else seems to have been approached,
how come they haven't approached you?"
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Olsen testified that during his conference on that
morning Lorenz brought up the fact that he had heard
from someone at, Pfizer Chemical that there was talk of
A/Z Electric "going union ." He then explained to Olsen
that an understanding existed between Respondent and
its customers that Respondent would operate as a non-
union shop "and that was how it was going to be run."
Lorenz' statements to both employees meet the criteria
under which an employer is deemed to have created an
impression of surveillance. They tended to imply that
Lorenz and Mahoney had engaged in a process of sur-
veillance. Schrementi Bros., 179 NLRB 853 (1969); South
Shore Hospital, 229 NLRB 363 (1977). Moreover, they
conveyed a positive impression that Lorenz had actual
knowledge of the activities going on. See Maxwell's
Plum, 256 NLRB 211 (1981); Clements Wire & Co., 257
NLRB 206 (1981). Lorenz was not citing rumors or
statements of a vague and general nature . See South
Shore Hospital, supra; Palby Lingerie, Inc., 252 NLRB 176
(1980). He specifically told Gonzales that he was the
only person who seemed not to have been approached;
attributions of uniqueness in that regard are not the kind
of thing normally based on rumor or conjecture. Lorenz'
assertion of knowledge of the disparity between Gon-
zales' account and what he asserted to be the experience
of all the other employees connotes actual knowledge ac-
quired by observation of the other employees. Gonzales
had to have concluded that surveillance was being con-
ducted. In Olsen's case, Lorenz said flatly that he had a
source of information, and so Olsen could have come to
no other conclusion. In the face of such evidence, I do
not accept Respondent's argument that evidence is lack-
ing that surveillance, was the only means by which Re-
spondent could have obtained such information (citing
G. C. Murphy Co., 217 NLRB 34 (1975)).
Lorenz' inquiry to Gonzales whether he had been ap-
proached to sign a' lord for the Union was made in a
conference in Lorenz' office, with all top management
present, and was made in the course of a conversation
that definitely conveyed the impression that employees'
activities were under surveillance. It was, accordingly,
precisely the type of coercive interrogation that is out-
lawed by Section 8(a)(1) of the Act. Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985); Rossmore House, 269
NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985).
III. THE REPRESENTATION CASE
A. Company Objection
The Employer contends that parking King's truck in
front of the voting area "was highly prejudicial to the
Company, and it was deliberately designed to influence"
the voters; that it was a tactic designed to create "strong
emotional reactions" from the voting employees just
before they voted; and was an effort to "place the Com-
pany in a negative light."7
However, no evidence was introduced in support of
any of these contentions. Some time had passed. King
died on 23 July; the election was held on 8 October.
There is no evidence that King's truck was recognizable
7 Postheanng brief submitted on behalf of Respondent-Employer.
by any of the voting employees; that strong emotional
reactions were likely to be or were aroused by sight of
the truck in the parking lot; or, for that matter, that any
reminder of King's death would in fact place the Compa-
ny in a "negative light" as claimed by the Company, ,a
proposition that cannot be taken for granted in view of
the uncontroverted evidence that in the open meeting on
29 July the journeymen's criticisms were leveled exclu-
sively against Pfizer Chemical and its employees.
There is no evidence that the truck was parked in
front of the voting area as part of a deliberate design to
influence the voting. The fact that Olsen was acting as a
poll watcher for the Union does not render the Union re-
sponsible for the way he parked the truck, or for the fact
that he used it, assuming that constituted misconduct.
There is no evidence that any specific instructions were
given to him by the Union. Tennessee Plastics, 215 NLRB
315, 319 (1974), enfd. 525 F.2d 670 (6th Cir. 1975). See
also Firestone Tire & Rubber Co., 235 NLRB 548 (1978).
Olsen presented a credible reason for using King's
truck. He testified, credibly, that his wife normally
drives him to work, but because he was acting as a union
observer on 8 October, he had to travel back and forth
between the worksite and the company office, where the
election was being held, in the middle of the afternoon.
He therefore borrowed King's truck from Janice King.
He parked where everyone else was parking. The truck
was parked midway between the front and rear entrances
of the building, a distance of 75 feet from each door by
his estimate.
The Company relies on the testimony of Robert Faille,
a supervisor employed by Ledyard General Contractors
(another corporation owned by Lorenz and Mahoney).
He was asked at 3 o'clock on 8 October to walk around
the grounds to make sure people did not wander around
the buildings. According to his testimony, the parking lot
was really a road coming into the property, on which
most cars park diagonally, but he saw "one truck that
was parked right on the driveway." It was "right oppo-
site the window" and 30 feet away from it. He placed
the truck at 40 feet from the entrances to the building. It
was there the whole time the voting was in progress. He
recognized it as a Datsun pickup truck that belonged to
Rick King, whom he had known very well. He also ob-
served that a Budweiser baseball cap, like the one King
had customarily worn, was hanging over the rearview
mirror. The truck had not been on the premises since
King's death.
Olsen conceded that he parked parallel to the building
close to the window at the voting area, and that the
truck was there throughout the time the voting was
being conducted. Olsen said that a blanket covered the
window that Faille referred to and he denied having
parked in a driveway, pointing out that the parking lot is
a big dirt lot without designated parking spaces.
The credibility of Olsen's testimony and the absence of
evidentiary support for the Employer's objection lead me
to reject it insofar as the use and parking of the truck are
concerned.
There is equally lacking any case with respect to the
persons gathered in the parking lot while the voting was
A/Z ELECTRIC
in progress. Nothing in Faille's testimony regarding,liis
encounter with them remotely suggests, that there was
any link between their conduct and the Union. Accord-
ing to Faille, a woman and about a dozen men , including
Lassonde, were waiting around for the results of the
election. They apparently were imbibing beer. Faille
asked them to leave, but when he returned to the park-
ing lot about the time the voting was concluded they
were still there. One of the men spoke to him disrespect-
fully.
There is no evidence that these persons were loitering
about the premises at the request of the Union or that
their presence in the parking Ilot in any way affected or
influenced any voter. In fact, Faille's testimony was that
all the voters had gone in by the time he first asked them
to leave, so he could not have observed the effect of
their presence on any of the voters. Furthermore, he tes-
tified that they stayed a good 50 feet away from the en-
trances to the building and did not approach the en-
trances. To the extent that one loiterer exhibited any bel-
ligerence and spoke to him disrespectfully, it is to be
noted that Faille refused to identify himself when some-
one else asked who he was. (Lassonde knew him, but
there is no evidence that he identified him to the others.)
Apparently, Vincent DiMauro was the one who asked
him who he was and Lance S. Schors was the one who
spoke to him disrespectfully.
Thus, not only, is the record barren of evidence that
the Union directed or instigated the conduct of Olsen or
the loiterers, but there is no evidence that there existed
an atmosphere of fear of reprisal, confusion, violence, or
threats of violence, such as would preclude or impair the
employees' uncoerced expression of choice concerning
bargaining, representation to such an extent that the elec-
tion ought to be set aside. See Swingline Co.,, 256 NLRB
704, 717 (198,1); Al Long, inc., 173 NLRB 447, 448
(1968); Steak House Meat Co., 206 NLRB 28' (1973);
Westwood Horizons Hotel, 270 NLRB 802 (1984).
Neither of these allegations is proven and the objec-
tion is accordingly dismissed.
B. The Challenged Ballots
The election was held pursuant to a Stipulation for
Certification Upon. Consent Election executed by the
Employer and the Union around 10 September. It pro-
vided for the holding of an election at the Employer's
premises at Ledyard, Connecticut, on 8 October from
3:30 to 5 p.m., among those who were employees as of 7
September, in an appropriate collective-bargaining unit
described as follows:
All full-time and regular part-time electricians and
working foremen licensed in the State of Connecti-
cut, and electrical apprentices registered in the State
of Connecticut; but excluding all office clerical em-
ployees, and guards, professional employees and su-
pervisors, as defined in the Act.
367
1: Terrence Lanier
The Union withdrew its challenge to Lanier's ballot at
the hearing, and it will accordingly be directed' to be in-
cluded in the tally.
2. Kevin Lassonde and Keith Stoll
Lassonde and Stoll were not included in the Employ-
er's list of eligible employees -because they,had been dis-
charged on 29 July . Inasmuch as their discharges were
unlawful and I recommend, in this decision, that they be
offered reinstatement with backpay, the challenges to
their ballots are overruled, and their ballots are directed
to be included in the final tally.
3. Richard Elliott
The Board agent challenged the ballot of Richard El-
liott on the ground that his name was not included in the
list of employees furnished by the Employer. The Union
offered no evidence with respect to this employee. How-
ever, when the Employer moved to sustain the Board
agent's challenge to Elliott's ballot, counsel for the
Union argued that the evidence showed only that during
the time Elliott worked for the Company he never en-
tered an apprenticeship program. That is not entirely ac-
curate, for Mahoney testified that Elliott's answer to
questions put to him when he was hired for the first time
in 1981 and at later time (he worked for Respondent
three times) indicated that Elliott had not been registered
in any apprenticeship program either by the Respondent
or by another employer, at any time during the periods
when he was in or out of employment with them. Al-
though,the testimony is silent about what happened in
between periods of employment, Elliott appears never to
have had a temporary apprentice registration card, was
not carried on the Employer's list of apprentices main-
tained for purposes of state inspection, was not included
in the Employer's calculation of ,the ratio between jour-
neymen and apprentices, and was not a journeyman. On
the basis of the evidence in the record, I find that he was
not an apprentice either. Accordingly, the Board agent's
challenge to Elliott's ballot is sustained.,
4. Casey, Schott, Schroeder Jr., Schroeder III, and
Wallrich
a. The basis of the challenges
The Union challenged the ballots of Thomas Casey,
Meade C. Schott, Harry L. Schroeder Jr., Harry L.
Schroeder III, and Robert Wallrich on the basis that
they are not, as required by the Stipulation for Certifica-
tion on Consent Election, "electricians . . . licensed in
the State of Connecticut" or "electrical apprentices reg-
istered in the State of Connecticut." The Employer con-
tends that as of the eligibility, date, all five of these per-
sons had the status of registered 'apprentices.
They unquestionably lacked status as licensed electri-
cians as of the eligibility date, inasmuch as two of them
took and, passed the licensing examination on 5 October
and three of them took and passed it on 7 December.
Testimony from a Connecticut official, established that
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such status begins on the date an electrician takes and
passes the examination though wallet -sized identification
cards are issued that uniformly date the 2 -year license
period from 1 October.
The stipulation is clear and unambiguous insofar as it
defines a bargaining unit that embraces electricians and
working foremen and electrical apprentices who have
met the licensing and registration requirements of the
State of Connecticut. What- those requirements are may
be easily determined by recourse to the administrative
and legal defmitions of those terms as applied by the
Connecticut licensing authorities.
b. Connecticut licensing and registration laws and
regulations
Connecticut statutes provide that no person may per-
form the work of an electrician unless he has obtained a
license or possesses a registration card from the State
Apprentice Training Division and is subject to its regula-
tions. The Department of Consumer Protection is re-
quired to hold four examinations each year. The license
applicant must satisfy the statutory examining board of
his competency, his moral character, and his educational
level. Any person completing the required apprentice
training program for a journeymen's license must apply
for a licensing examination within 30 days following
such completion. An applicant can repeat the examina-
tion if necessary , within prescribed limitations . With re-
spect to the apprentice permit, it is provided:
Any apprentice permit issued . . . to an applicant
who fails three licensure examinations in any one-
year period shall, remain in effect if such applicant
applies for and takes the first licensure examination
given by the department of consumer protection
following the one-year period from the date of his
third and last unsuccessful licensure examination.
Otherwise, such permit shall be revoked as of the
date of the first examination given . . . following
expiration of such one-year period.
The statutory definition of "apprentice" is:
[A]nyone indentured to the Connecticut state ap-
prentice training division of the labor department or
registered with the appropriate state examining
board for the purpose of learning a skilled trade.
Work training standards for apprenticeship and train-
ing programs issued by the Connecticut Commissioner of
Labor define 'an "apprentice" as
a person employed with a sponsor receiving
skill training under ' a written agreement which pro-
vides specific terms of apprenticeship and employ-
ment including but'not limited to wage progression;
specific hours of job training processes; hours and
courses of school instruction which satisfactory
completion thereof provides recognition as a quali-
fied professional, technical, craft or trade worker.
A "journeyperson" is defined as:
any person who has completed an apprenticeship or
is recognized/classified as a skilled person .and pos-
sesses a valid journeyperson card of occupational li-
cense when required.
The apprentice agreement must provide for at least
2000 hours of work experience and for a number of
hours of related or supplemental instruction either as pre-
scribed by, the ;Connecticut State Apprenticeship Council
or as prescribed by Federal requirements for on-the-job
training schedules. Such related instruction must be in an
organized and systematic form. Another pertinent defini-
tion sets forth that
"Registration of an apprentice" means the accept-
ance and recording of a duly executed apprentice-
ship agreement by the Commissioner as evidence of
participation in a particular bona fide registered ap-
prenticeship program as required for state or federal
purposes.
The manner in which the statutes and regulations
work in practice was described by Joseph Gracey, a pro-
gram manager in the apprentice training division of the
State Labor Department. Gracey's division is the regis-
tering agency for apprentices. The actual licensing of
journeymen is under the jurisdiction of the Connecticut
Department of Consumer Protection, Division of Regis-
tration for Occupational Licensing, which publishes reg-
isters listing the names and license numbers of persons li-
censed by it.
Gracey testified:
The employer, if he's interested, signs a set of ap-
prenticeship training standards, develops a wage
progression schedule and assists in the development
of a training outline for the occupation that's in-
volved, and then enters into an apprentice agree-
ment, with a particular apprentice and we're the
third party to that agreement in that the Deputy
Labor Commissioner, who is, the Executive Secre-
tary of the Apprenticeship Council, signs that ap-
prentice agreement, thereby creating a registered
apprentice.
According to Gracey, Connecticut law recognizes no
kind of apprentice other than the registered apprentice;
the issuance of temporary apprentice identification cards
does not confer upon the holders thereof the status of
registered apprentice; a person becomes a registered ap-
prentice only by compliance with and completion of the
prescribed procedures and then not until the apprentice-
ship agreement that he signed with the employer is ap-
proved and signed by the Deputy Commissioner of
Labor; temporary cards are issued, but these are only for
the purpose of enabling a person to work until a perma-
nent identification card is issued, which is done only
after the agreement has been signed by the Deputy Com-
missioner.
Gracey also testified that electrical contractors are re-
quired to maintain an on-the-job ratio of one journeyman
for each apprentice and field representatives from Gra-
cey's office conduct regular inspections to ensure compli-
A/Z ELECTRIC 369
ance. His office records identify all apprentices registered
in Connecticut.
c. The position of Connecticut officials respecting
apprenticeship status of the challenged voters
Gracey, the Connecticut official directly involved in
the registration of apprentices , whose office maintains
data respecting their identity and work locations and
conducts compliance inspections, testified that, as of 7
September, Casey, Schott, Schroeder Jr., Schroeder III,
and Wallrich were not registered apprentices in Con-
necticut. Another Connecticut official took a similar po-
sition. Mahoney testified that on 27 August, Robert Bell,
the assistant director of the occupational licensing divi-
sion of the Department, of Consumer Protection; advised
him by telephone that as of that date three men-Casey,
Schott, and Schroeder Jr.-were, not registered appren-
tices.
The interpretation of the Connecticut laws and regula-
tions by the officials charged with executing them is de-
serving of consideration, especially when, as in this case,
their, interpretation is consistent with any literal reading
of the applicable statutes and departmental regulations.
The Employer did not procure the testimony of any
other public official, and so the interpretation to which
Gracey testified is uncontroverted. The Employer at-
tempted unsuccessfully to impugn Gracey's credibility,
d. The Employer's contentions
Notwithstanding its concession in the posthearing brief
submitted on its behalf that the stipulation for certifica-
tion is clear and unambiguous, the Employer contends
that the ballots of Casey, Schott, Schroeder Jr., Schroe-
der III and Wallrich are entitled to be counted because
they were "temporary apprentices" or "completed ap-
prentices." The stipulation mentions no such classes of
apprentices. No Connecticut law or administrative regu-
lation mentions or defines any such class . It is well set-
tled that an unambiguous Stipulation for Certification
Upon Consent Election is binding regardless of any pri-
vate reservations a party may have. The reason for the
generally strict adherence to the stipulations is apparent:
it reflects the parties' own determination' or definition of
the unit. An ambiguous stipulation will be permitted to
be clarified only' because it does not determine the eligi-
bility of employees to vote when their right, to do so is
disputed. See NLRB v. Sonoma Vineyards,, 727 F.2d 860
(9th Cir, 1984).
This is not a case in which any ambiguity exists, there
being no genuine and reasonable disagreement between
the parties. See Mohawk Valley Oil, 210 NLRB 1060
('1974) ("permanent" in a stipulation entitling "permanent
employees" to vote). In the ;present case, 'the Employer
has professed to have great and previously undisclosed
uncertainty about the meaning of terms used in the stipu-
lation, which are defined in Connecticut law and statuto-
ry regulation, though reference is made in the stipulation
to Connecticut law. No such uncertainty exists on the
part of the Union. The stipulation can only be read as
referring to persons licensed or registered in conformity
with Connecticut statutory and administrative require-
ments as explained in Gracey's uncontroverted testimo-
ny. (I rejected the Employer's attempt to prove that Las-
sonde made statements to Mahoney regarding the per-
sons whom he approached to sign union cards, as part of
its attempt to prove who was includable in the unit. That
occurred before the stipulation was signed and, in any
event, would show only the persons whom Lassonde ap-
proached and would not be probative of the Union's un-
derstanding of the stipulation subsequently entered into.)
The purely fictional nature of the "completed appren-
tice" is illustrated,by the case of Schroeder III, who had
completed his apprenticeship time and therefore was de-
fined by Mahoney as a "completed apprentice in the
process of applying for his journeyman's license." (Ma-
honey did not discuss "completed apprentices" who did
not apply.) At the same time, because "completed ap-
prentices" received temporary white cards renewable for
6-month extensions, which looked like regular white ap-
prenticeship identification cards, he contended that the
holders were really "apprentices." On that basis, he
changed his testimony and opined that Schroeder III was
an "apprentice" and not just a "completed apprentice."
In his testimony, therefore, Mahoney gave Schroeder III
status variously as an ",apprentice," a "completed appren-
tice," and a "completed apprentice in the process of ap-
plying for his journeyman's license." He conceded that
this was his own opinion and not necessarily in accord
with that of Connecticut officials.
The untenability of the Employer's position is illustrat-
ed by the situation of Harry L. Schroeder Jr. Mahoney
testified, on cross-examination, that in July 1985 this em-
ployee, claimed to be an apprentice, was the foreman at
the Dow Chemical job. That meant, however, that he
was supervising a journeyman 'working on that job,
Edward McClintock. At that time, Schroeder had been
with A/Z for about 10 years and was still unlicensed.
Mahoney did not contend that he had been an apprentice
all that time. Instead, he testified that Schroeder Jr.
became an, apprentice on 28 August by virtue of the ar-
rangement made after issuance of a citation by the Con-
necticut authorities. Gracey's testimony makes it clear
that he was not a registered apprentice 'because the
Deputy Commissioner of Labor never signed the agree-
ment . Mahoney admitted that he did not identify Schroe-
der to Dow Chemical as an apprentice. Mahoney finally
gave up and testified:
He was an electrician. He did not have a journey.
man's license . He was not registered as an appren-
tice.- He had a lot of extensive background and ex-
perience [of which] Dow was aware.
In the face of this kind of testimony, the Employer's
counsel ultimately came to rely on two arguments, one
of which is wholly inapplicable as a matter of law, and
the other of which simply ignores the realities of the par-
ties' situation as of August.
The first-mentioned argument is that an anomalous
result will be produced if these five employees are ex-
cluded from voting, because they have a community of
interest with the persons who are concededly within the
unit. Such an argument mischaracterizes the issue in this
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case. The community -of-interest doctrine is pertinent
when the Board must make its own determination of an
appropriate bargaining unit. It has no applicability when
the parties have already done so, as they did in the stipu-
lation in this case. White Cloud Products, 214 NLRB 516,
517 (1974).
In its reliance on temporary apprentice identification
cards issued to Casey, Schott, and Schroeder Jr. in order
to establish their supposed apprenticeship status, counsel
for the Employer simply ignored the fact that the cards
were issued as a`makeshift device in order to enable the
men to continue working and in order to enable the Em-
ployer to proceed with its job without interruption.
These men, who were neither apprentices nor journey-
men, were discovered working on a job by a Connecti-
cut inspector, who issued a citation to the Employer on
26 August. Mahoney worked out an arrangement with
Gracey's office whereby apprenticeship agreements cov-
ering them were drawn up and entered into so they
could be carried as apprentices . The agreements were
signed by Lorenz, on behalf of the Employer, and by
Lawrence Swayze, a field representative from the Nor-
wich office who reported to Gracey. On the basis of
these agreements , cards entitled "Temporary Apprentice
Identification" were issued to Casey, Schott, and Schroe-
der Jr. on 28 August, effective until 28 November. This
untidy arrangement was designed to enable them to
work, but Mahoney, having cynically evaded the re-
quirements of Connecticut law, now contends that the
three men thereby became apprentices, though conced-
edly not "registered apprentices." He had to make that
concession, for Gracey testified that.-the agreements were
filed away and were never signed by the Deputy Com-
missioner, and so they never became registered appren-
tices.
Gracey was very clear that, though the ID cards
issued to Schroeder Jr., Schott, and Casey were based on
apprenticeship agreements showing 7000 of the 8000
mandatory hours of on-the-job work experience complet-
ed, this was done because if all 8000 hours were shown
they could not have been permitted to execute such
agreements. They had extensive work experience and, in
Gracey's words, were "beyond apprenticeship." The sole
purpose of the cards was to enable them to work while
they were in the process of applying for and being ac-
cepted for their license examinations . But that did not
give them status as apprentices, according to Gracey.
Only a permanent ID would reflect such status. The Oc-
cupational Licensing Board honors the temporary card
so that the individual can work until the permanent ID is
issued. In fact, Larry Swayze, of the Norwich office, in
August, explained to Mahoney that the men were not
registered apprentices, but were being given the cards as
a humanistic measure to enable them to make a living.
Their lack of status was indicated by the fact that though
an employer must carry one licensed E-2 journeyman for
each apprentice on the payroll, the, Employer was not
expected to do so with respect to these men. As Gracey
put it,: "These people were in a gray area, a very gray
area." In the supervision of A/Z Electric, they were not
counted as apprentices . He explained:
We- did not know what they were and so, therefore,
we would not have enforced a situation which said
they must have journeymen to cover them. The as-
sumption was they were journeymen by virtue of
the time they had served and were in the process of
trying to get that license and we were doing this so
that they could continue to work.
He also commented:
We issue them as a special measure by agreement to
keep the licensing inspectors off their backs until
such time as they obtained a license.
Gracey's testimony was in line with the reasonable and
ordinary construction of the language of the, statutes and
regulations that govern apprenticeship status in the State
of Connecticut. I find the "Temporary Apprentice Regis-
tration" cards, issued to enable men to work who are in
the "gray area" between apprentice and journeyman
status, are not intended to and do not confer either status
on the holders of such cards.
Asserting that such status exists simply because of lan-
guage on certificates issued by the State of Connecticut
for' a particular limited purpose , under circumstances to
which they were never intended to apply, can only be
misleading. This was as true for Robert L. Wallrich and
Harry Schroeder III as it was for Casey, Schott, and
Schroeder Jr. In their cases, there appears to have been
recognition at some points that in the absence of a valid
apprenticeship contract they were not apprentices, and
that apprenticeship status did not survive expiration of
the contract. For example, Harry L. Schroeder III en-
tered into an apprenticeship contract on 19 January 1981.
He left after a year. When he returned, the fact that his
apprenticeship status no _ longer existed was recognized
when Mahoney and an agent from the Connecticut ap-
prenticeship program had a discussion, agreed on the
number of hours to be credited to him, and entered into
anew apprenticeship agreement . He left again and went
to work for another employer with whom he entered
into yet another apprenticeship contract and who subse-
quently certified his completion of the required 8000
hours on the job. He returned to, A/Z Electric late in
1984, left again in February 1985, and returned in June
1985. He was interviewed by Mahoney and Lorenz and
was asked about his program, and he ,advised them that
he had completed all requirements and was applying to
take the licensing examination . Mahoney's reference to
him in his testimony ' as a "completed apprentice" is the
clearest possible admission of his uncertainty regarding
this employee's status, and his contention that he was put
on a jobsite as an apprentice and carried, on a one -to-one
ratio is belied by Gracey's testimony and by the fact that
the ratio was violated in September and, by Mahoney's
own admission, at other points in time, as employees
came and went and the number of journeymen, and ap-
prentices fluctuated. Lorenz' and Mahoney's lack of
credibility in this regard makes it impossible to believe
that, under all ,the circumstances, they thought that they
were dealing with apprentices. Mahoney conceded that
in a fluid,. hiring pattern Respondent was frequently out
A/Z ELECTRIC 371
of ratio. In fact, that was the very situation in September
1985. Mahoney identified the journeymen and those he
claimed to be apprentices whose names appeared on the
voting eligibility list that the Employer had prepared.
There were 9 journeymen (Robert Buck, Jeffrey Cole-
man, William Combies, James, Cyr (an E-1), John Dia-
mond Jr., Paul Fenton, Terrence Lanier, Edward
McClintock, and Gary Sicard) and 12 persons whom he
identified as apprentices (Thomas Casey, LeRoy Gay Jr.,
David Gonzales, Don Herwerth, Carlton Johnson Jr.,
Kevin McGlaufflin, David Olsen, Meade Schott Jr., Carl
Schroeder, Harry L. Schroeder Jr., Harry L. Schroeder
III, and Robert Wallrich).
Robert Wallrich was notified by the Connecticut
agency that work and educational requirements were
completed as of 25 April 1983. He failed to pass exami-
nations in June 1984 and March 1985. He reapplied on 9
October 1985 and passed the examination on 7 December
1985. He was carried by A/2: as a "completed appren-
tice" and Mahoney testified that he showed lists to
Gracey on which Wallrich appeared in that manner. Yet,
Respondent itself introduced into evidence a certificate
dated 19 March 1984 issued by the Apprenticeship Coun-
cil of the Labor Department that set forth that Wallrich
had satisfactorily served the required apprenticeship of
8000 hours at the trade of electrician "and is therefore
entitled to be recognized as a. Journeyman in this trade
on February 26, 1983." The ' Employer also introduced
into evidence a "Certificate of Completion" of appren-
ticeship by Wallrich, dated 15 November 1983. In addi-
tion, the Employer introduced into evidence documents
issued by the Department of Consumer Protection,
Board for Occupational Licensing, certifying that Wall-
rich, Schroeder Jr.,,Schott, and Casey were licensed or
registered as "Electrical Unlimited Journeyman-E2" ef-
fective I October 1985, The purpose was, to prove that
if, as of that date they were journeymen, then as of 7
September they must have been apprentices.
It would seem self-evident that an apprentice who
completes all the requirements of an apprenticeship train-
ing program ceases to be an apprentice. Gracey so testi-
fied. If he takes the journeymen's examination and
passes, he becomes a journeyman. If he for some reason
does not take the examination, or if he takes the examina-
tion and fails to pass, he does not become a journeyman,
but he does not revert to His status as an apprentice,
either. That ended when he completed the apprentice-
ship, or so I would think. As ii happened, Gracey had an
acceptable explanation for the certificates issued to Wall-
rich. The records in his office disclosed that Wallrich
had been registered as an apprentice and had completed
the requisite number of on-the-job training hours but had
not completed the related educational requirements. The
certificate that had been issued to him certified only that
the on-the-job hours requirement had been met. The
Connecticut Department of Education certifies comple-
tion of the related educational requirements, and the
completion of apprenticeship training is certified by the
issuance of two certificates covering the two branches of
apprenticeship training, one from each agency of the
State of Connecticut. As no apprenticeship agreement
was in force on either 7 September or 8 October, he was
not registered as an apprentice on either of those dates.
The fact that Wallrich subsequently applied for and
took the licensing examination did not make him, during
the interim period, a "completed apprentice" until he
became a journeyman. There is no such recognized
status. Gracey testified that the status as a registered ap-
prentice of a person who is enrolled in an apprenticeship
program and has completed his apprenticeship ends
when the sponsoring employer notifies the division that
the employee has satisfactorily completed the program
and the division checks and ascertains that there has
been a positive completion. The vocational technical
school system is also contacted to ascertain that related
educational requirements have been fulfilled, and if ap-
propriate, a license examination application is then sent
to the-applicant.
It is clear that none of these five voters can be quali-
fied as apprentices by reason of the existence of docu-
ments that seem to leave them standing as apprentices or,
as in Wallrich's case, as a journeyman, without actual
bona fide compliance with the requirements of Connecti-
cut law. The documents merely reflect the administrative
adjustments made by the concerned Connecticut agen-
cies in . order to meet the daily exigencies of contractors'
business while apprenticeship training and licensing pro-
cedures are being carried on. The perfect example is the
practice of uniform dating of the licensing periods on the
identification cards, which does not at all affect the date
when a person actually becomes a licensed electrical
journeyman in Connecticut.
Robert Bell, the assistant director of the occupational
licensing division of the Department of Consumer Pro-
tection testified that the date an applicant becomes a li-
censed electrician is the day he passes the examination.
Robert L. Wallrich, and Harry L. Schroeder Jr. passed
the examination on 7 December and became licensed
electricians as of that date. Thomas M. Casey and Meade
C. Schott passed the examination on 5 October 1985 and
became licensed electricians as of that date. However,
for purposes of administrative convenience, relating to li-
cense renewal, all licenses are effective for 2-year peri-
ods, commencing 1 October. Consequently, the licenses
of Wallrich, Casey, Schott, and. Schroeder' Jr. all bore
the same effective date, but in fact 'they became licensed
electricians on various dates, none of which were the
stipulated eligibility dates.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the
Act by
(a) Discriminatorily discharging Kevin Lassonde and
Keith Stoll on 29 July 1985 because of their support of
the Union and because they engaged in concerted pro-
tected activity by protesting working conditions.
(b) By increasing wages in order to induce employees
to reject the Union.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Respondent violated Section 8(a)(1) of the Act by
(a) Coercively interrogating an employee concerning
his union and other protected activities;
(b) Creating the impression that it has the union activi-
ties of employees under surveillance.
(c) Threatening employees that it would close its busi-
ness if they selected a union as their bargaining repre-
sentative.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce , within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged
two employees, it must offer them reinstatement and
make them whole for any loss of earnings and other ben-
efits, computed on a quarterly basis from date of dis-
charge 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
Florida Steel Corp., 231 NLRB 651 (1977). See Isis
Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I =issue ,the following recommend-
eds
ORDER
The Respondent, A/Z Electric, Inc., Ledyard, Con-
necticut , its officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Discharging or 'otherwise discriminating against
any employee for supporting International Brotherhood
of Electrical Workers, Local 35, AFL-CIO or any other
Union or for engaging in other protected concerted ac-
tivities by way, of protesting working conditions.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Granting increased wages in order to induce em-
ployees to reject the Union. -
(d) Creating the impression that it has the union activi-
ties of employees under surveillance.
(e) Threatening employees with closure of the business
if they select any union as their collective bargaining
representative.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the .Act.
(a) Offer Kevin Lassonde and Keith Stoll immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
8 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 pur-
poses
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them 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.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount, of backpay due under the
terms of this Order. ,
(d) Post at its facility in Ledyard, Connecticut, copies
of the attached notice marked "Appendix." 6 Copies of
the notice, on forms provided by the officer in charge
for Subregion 39, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the officer in charge in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the Employer's
Objection 3 is overruled.
IT IS FURTHER RECOMMENDED that Case 39-RC-632
be `remanded to the officer in charge to open and count
the ballots of Terrence Lanier, Kevin Lassonde, and
Keith Stoll, and to issue a revised tally of ballots and a
certification of representation if International Brother-
hood of Electrical Workers, Local 35, AFL-CIO has re-
ceived a majority of the votes cast.
9 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
A/Z ELECTRIC
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
Accordingly, we give you these assurances
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting International Brother-
hood of Electrical Workers , Local 35, AFL-CIO or any
other Union or for engaging in protected concerted ac-
tivities by way of protesting .working conditions.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT grant wage increases in order to induce
you to reject the Union.
WE WILL NOT create the impression that we have your
union activities under surveillance.
373
WE WILL NOT threaten to close down our business if
you select a union as your collective-bargaining repre-
sentative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Kevin Lassonde and Keith Stoll imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings and other ben-
efits resulting from their discharge, less any net interim
earnings , plus interest.
WE WILL notify each of them that we ,have removed
from our files any references to his discharge and that
the discharge will not be used against him in any way.
A/Z ELECTRIC, INC.