Buckeye Electric Co.

National Labor Relations Board - Board Decisions

Jun 18, 2003

339 N.L.R.B. 334 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 334
Buckeye Electric Co. and International Brotherhood
of Electrical Workers, Local 1105. Case 9–CA–
39021
June 18, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On July 31, 2002, Administrative Law Judge Earl E.
Shamwell Jr. issued the attached decision. The Respon-
dent filed exceptions and a supporting brief and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions2

1 Respondent excepts to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant 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.
The judge found that the Respondent threatened employees with
more onerous working conditions because of their union activities in
violation of Sec. 8(a)(1) based on the credited testimony of Tim McCoy
that Supervisor Scott Whitaker told him Respondent’s president, Dick
Smythe, was at a jobsite to send McCoy to Dayton in an effort to make
McCoy quit. Respondent contends in exceptions that the judge erred in
relying solely on hearsay testimony of McCoy and Whitaker about
what Richard (Rick) Smythe would allegedly do when a Columbus site
worker joined the Union. We disagree. The finding of a violation is
based on nonhearsay testimony by McCoy about a threat of more oner-
ous working conditions made directly to him by his supervisor. It is
irrelevant whether Smythe actually expressed the intent attributed to
him by Whitaker.
2 We agree with the judge that the General Counsel met his burden
of proving unlawful motivation for McCoy’s discharge. Respondent
argues in exceptions that the timing between the discharge and open
union activity, standing alone, is insufficient proof of animus in this
case. We note, however, that the judge considered other evidence in
conjunction with the factor of timing, including Supervisor Whitaker’s
threat of more onerous working conditions. With respect to this other
evidence, however, we do not rely on noncoercive statements made by
Rick and Dick Smythe that McCoy would now be “paying to go to
work” and that the “A-team” did not want McCoy anymore. Member
Walsh agrees with all elements of the judge’s analysis of this aspect of
the case.
The judge stated his view that “the Respondent could have lawfully
terminated McCoy on September 10 when he announced that he had
joined the Union and would be leaving soon.” And that “Smythe’s
initial decision to give McCoy until the end of the week . . . probably
posed no violation.” Read in context, we interpret the judge’s com-
ments to mean that Respondent did not have any legal obligation to
retain McCoy for any period of time after he announced he would be
leaving, not that Respondent could immediately discharge him because
he had joined the Union.
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Buckeye
Electric Co., Dayton, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(a), reletter-
ing the subsequent paragraphs:
“(a) Within 14 days from the date of this Order, offer
Tim McCoy full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
“(b) Make Tim McCoy whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the decision.”
2. Substitute the following for relettered paragraph
2(d):
“(d) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Revise relettered paragraph 2(e) by substituting the
date September 11, 2001, for the date January 23, 2002.
4. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
3 We shall modify the judge’s recommended Order, and substitute a
new notice, in accordance with our recent decisions in Indian Hills
Care Center, 321 NLRB 144, 145 (1966); Ferguson Electric Co., 335
NLRB 142 (2001); and Excel Container, 325 NLRB 17 (1997).
339 NLRB No. 42
BUCKEYE ELECTRIC CO. 335
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discriminate against
employees because of their support of and sympathies for In-
ternational Brotherhood of Electrical Workers, Local 1105, or
any other labor organization.
WE WILL NOT discharge or otherwise discriminate against
employees because they desire and seek membership or the
benefits of membership in International Brotherhood of Electri-
cal Workers, Local 1105, or any other labor organization.
WE WILL NOT threaten employees with more onerous work-
ing conditions because of their support of International Broth-
erhood of Electrical Workers, Local 1105, or any other labor
organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of rights guaranteed
them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Tim McCoy full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges previ-
ously enjoyed.
WE WILL make Tim McCoy whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Tim
McCoy, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not
be used against him in any way.

BUCKEYE ELECTRIC CO.

Theresa Donnelly-Laite, Esq. and Kathleen Floth, Esq., for the
General Counsel.
Stephen M. Pfarrer, Esq., of Dayton, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This
case was heard before me on May 30, 2002, in Dayton, Ohio,
pursuant to a charge filed on January 23, 2002, against Buckeye
Electric Co. (the Respondent) by the International Brotherhood
of Electrical Workers, Local 1105 (the Union). On March 7,
2002, the Acting Regional Director for Region 9 of the Na-
tional Labor Relations Board (the Board) issued a complaint
alleging that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by threatening an em-
ployee with more onerous working conditions because of his
support of the Union, and Section 8(a)(3) and (1) of the Act by
discriminatorily discharging said employee because of his sup-
port of and membership in the Union. On or about April 2,
2002, the Respondent filed a responsive answer essentially
denying the commission of any unfair labor practices and as-
serting several affirmative defenses.1
At the hearing, the parties were represented by counsel and
were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and introduce evidence. On the entire
record, including my observation of the demeanor of the wit-
nesses, and after considering the briefs filed by the General
Counsel and the Respondent,2 I make the following
FINDINGS OF FACT
I. JURISDICTION—THE BUSINESS OF THE RESPONDENT
The Respondent, with an office and place of business in
Dayton, Ohio, has been engaged as an electrical contractor in
the construction industry. During the past 12 months, the Re-
spondent, in conducting its operations, performed services val-
ued in excess of $50,000 for enterprises within the State of
Ohio. The Respondent admits, and I find and conclude, that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Respondent admits, and I find and conclude, that the In-
ternational Brotherhood of Electrical Workers, Local 1105, has
been a labor organization within the meaning of Section 2(5) of
the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates as a nonunion electrical contractor
in the construction industry. The Respondent’s main office is
located in Dayton, Ohio, but its operations covered various
projects in and around both Dayton and Columbus.
Dick and Richard (Rick) Smythe, father and son, respec-
tively, serve as president and vice president of the Respondent.4
Both Smythes had authority to hire, fire, or discipline employ-
ees, and each exercised that authority as part of their duties and
responsibilities to the Company.
The Respondent’s work force is divided between a Dayton
crew and a Columbus crew. Employees were in the main as-
signed to one crew or the other based on the proximity of their
residences to the respective a project sites in and around these
cities.

1 In its answer, the Respondent admitted that the charge was filed by
the Union on January 23, 2002, as alleged; however, the Respondent
denied that a copy of the charges was served on it by regular mail on
January 24, 2002. At the hearing, the Respondent stipulated and agreed
that a copy of the charges was served on it by regular mail on January
24, 2002.
2 The Charging Party Union did not file a brief.
3 In its answer, the Respondent stated it was without information suf-
ficient with which to form a belief as to the truth of the labor organiza-
tion status of the Union. At the hearing, the Respondent stipulated and
agreed that the Union was a labor organization within the meaning of
the Act.
4 The Respondent admits, and I find and conclude, that the Smythes
are supervisors and/or agents within the meaning of Sec. 2(11) and (13)
of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336
The Respondent’s employees at the time of hire are provided
a handbook that they are required to read and acknowledge
receipt.5 The Respondent’s handbook sets out various policies
and procedures of the Company, including safety, personal
behavior, time and attendance, leave vacation, and other bene-
fits. The handbook also states that employment at the Com-
pany is “at will” and that an employee can be terminated by
either the employee or the Company for any or no reasons and
without notice to either party.
Alleged discriminatee Tim McCoy was hired by Rick
Smythe on about April 1, 1996, as a journeyman electrician. At
the time of hire, McCoy lived in Stockport, Ohio, which is
about 100 miles northeast of Columbus. McCoy, when hired,
was told by Smythe that he would be working in the Columbus
area and, throughout his employment at the Respondent,
worked solely at Columbus area project sites.6 During the pe-
riod covering late August 2001 through September 21, 2001,
McCoy was employed at the Respondent’s Sisson Hall project
on the campus of the Ohio State University; McCoy’s immedi-
ate supervisor at Sisson Hall was Scott Whitaker.7 The Sisson
Hall project manager was Donald Stafford,8 who reported to
Rick Smythe.
On about September 7, 2001, while on vacation, McCoy,
having completed the Union’s application and interview proc-
ess, joined Local 1105 of the IBEW.
On the morning of September 10, 2001, McCoy returned to
work and told Whitaker that he had joined the Union. Later
that same day, McCoy also told Stafford and Rick Smythe that
he had joined the Union. On September 11, 2001, McCoy in-
formed Dick Smythe that he had joined the Union. On Sep-
tember 20, Rick Smythe advised McCoy that Friday, Septem-
ber 21, 2001, would be McCoy’s last day of employment with
the Respondent. McCoy reported for work on September 21
but only to return his keys and retrieve personal items and oth-
erwise did not work that day.
The complaint essentially alleges that on or about September
11, 2001, Whitaker threatened McCoy with more onerous
working conditions because of his support of the Union; and
that McCoy was discriminatorily discharged by the Respondent
on September 21, 2001, because he joined and assisted the
Union or engaged in union activities.
B. The September 11 Threat Allegations
McCoy testified at the hearing, stating that on September 11,
he reported for work that morning and conversed with Dick
Smythe at the Sisson Hall site near the electrical closet where
he was working. According to McCoy, Smythe, among other
matters, asked him if he had joined the Union, to which McCoy

5 See R. Exh. 3, a copy of the handbook, effective as of June 11,
1998.
6 McCoy commuted about 100 miles each way to and from his job
assignment in Columbus by his personal vehicle, a fact known by the
Respondent’s management, including Rick and Dick Smythe.
7 Whitaker is an admitted supervisor and/or agent of the Respondent.
8 Stafford is an admitted supervisor and/or agent of the Respondent.
said that he had.9 McCoy stated that Whitaker was present
during the entire conversation but made no comment. This
conversation took place before lunch. McCoy said later that
day, around 1 p.m., he was having some problems with a wiring
assignment at the site and consulted with Whitaker to resolve
them. According to McCoy, the conversation turned to Dick
Smythe, with Whitaker asking McCoy if he knew why Smythe
was at the site. McCoy said that he told Whitaker that he had
an idea. According to McCoy, Whitaker said that Dick was
there to send McCoy to Dayton.10 McCoy asked why would
Dick want to send him there. According to McCoy, Whitaker
said that Smythe wanted to send him to Dayton in the hope that
such a move would prompt McCoy to quit. McCoy testified
that he had never been assigned to Dayton by the Respondent
and, in fact, had never been asked to work there. McCoy stated
that he was shocked by the revelation that Dick Smythe would
resort to this inasmuch as he had only seen and spoken to
Smythe on one prior occasion in 1997.
McCoy stated that he reported to the Sisson Hall site on Sep-
tember 12 and observed Rick Smythe walking by the electrical
closet several times, but saying nothing to him. According to
McCoy, Rick seemed to be “eye balling” him, which made him
feel nervous and intimidated. Acting on these concerns,
McCoy stated that later that day, he called Robert Norris, a
union organizer with whom he had met before joining the Un-
ion, and told him that he felt uneasy and intimidated on the job.
McCoy stated that Norris advised him to assert his “Weingar-
ten” rights if anyone from management approached him.11
McCoy stated that nothing more was said to him about his as-
signment to Dayton and, in fact, he was never sent to Dayton
by the Respondent.
Whitaker testified at the hearing. However, he did not ad-
dress the allegation that the Respondent, through him, unlaw-
fully threatened McCoy with more onerous working conditions;
that is, requiring McCoy to travel farther to job assignments in
order to induce McCoy’s resignation.
Section 8(a)(1) of the Act provides: “It shall be an unfair la-
bor practice for an employer (1) to interfere with, restrain, or
coerce employees in the exercise of rights guaranteed in Sec-
tion 7 . . . .” The test under Section 8(a)(1) does not turn on the
employer’s motive or whether the coercion succeeded or failed.
The test is whether the employer engaged in conduct which it
may be reasonably said tends to interfere with the free exercise
of employee rights under the Act. Gissel Packing Co., 395
U.S. 575 (1969); Almet, Inc., 305 NLRB 626 (1991); American
9 There are other aspects of this conversation that relate to the
8(a)(3) allegations, which will be discussed in a separate section of this
decision.
10 Notably, Dick Smythe testified that between September 11 and 20,
he said nothing to McCoy about his working in Dayton. He, however,
admitted that the Company had on occasion sent Columbus personnel
to Dayton. He admitted also that he had talked to Whitaker about send-
ing McCoy to Dayton but that it was only a possibility, and never acted
on by him. (Tr. 242.)
11 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), gives employ-
ees the right to union representation at an employee’s investigatory
interview at which the employee reasonably believes might result in
disciplinary action.
BUCKEYE ELECTRIC CO. 337
Freightways Co., 124 NLRB 146, 147 (1959). Thus, it is viola-
tive of the Act for the employer or its supervisor to engage in
conduct, including speech, which is specifically intended to
impede or discourage union involvement. F. W. Woolworth
Co., 310 NLRB 1197 (1993); Williamhouse of California, Inc.,
317 NLRB 699 (1995). The test of whether a statement or
conduct would reasonably tend to coerce is an objective one,
requiring an assessment of all the surrounding circumstances in
which the statement is made as the conduct occurs. Electrical
Workers Local 6 (San Francisco Electrical Contractors), 318
NLRB 109 (1995). Rossmore House, 269 NLRB 116 (1984),
enfd. sub nom. Hotel & Restaurant Employees Local 11 v.
NLRB, 706 F.2d 1006 (9th Cir. 1985). The Board has noted in
this regard that the context of statements can supply meaning to
the otherwise ambiguous or misleading expressions if consid-
ered in isolation. Debbie Reynolds Hotel, 332 NLRB 466
(2000).
The Board has held that an employer may violate the Act by
threatening employees with stricter or more onerous working
conditions if they support a union or engage in protected activi-
ties. Mathis Electric Co., 316 NLRB 258, 264 (1994); United
Artist Theatre, 277 NLRB 115, 129 (1985).
Discussion and Conclusions of the 8(a)(1) Allegations
The threshold question is whether McCoy’s supervisor,
Whitaker, made or at least communicated the allegedly threat-
ening comments of Dick Smythe to McCoy. I believe that he
did. McCoy impressed me as a very candid, forthcoming, and
respectful witness; he seemed to be of an honest and sincere
nature. In my view, his testimony and demeanor on the stand
clearly reflected his honesty and, by the way, excellent recall.
Moreover, McCoy’s version is on the one hand unrebutted—
Whitaker offered no contrary testimony—and, on the other it is
corroborated. In this latter regard, the General Counsel ad-
duced certain tape recorded conversations between McCoy and
Whitaker.12
The following excerpts (by the numbered paragraphs) in the
transcript from McCoy’s September 20 taped conversations
with Whitaker (GC Exh. 9) are illustrative.

414 TIM [MCCOY]: . . . and then Dick [Smythe] comes
out and he tells me I can work as long as I can or as long
as I want. You know, and I thought well, that ain’t what
Rick [Smythe] told me yesterday. You know, and then
you come and told me that he wanted to send me to Day-
ton so that I would quit. Hell, I mighta went out there and
got me a motel room. You know, maybe I would’ve went
to Dayton.
415 SCOTT [WHITAKER]: Oh yes, f—k you.
. . . .
421 TIM: Well, I don’t understand why he would say,
you know, I’ll just send his ass to Dayton, that way he’ll
quit. I mean, you know.

12 McCoy testified that on September 19, he obtained a mini tape re-
corder from Norris and secretly recorded conversations with Whitaker
at the Sisson Hall jobsite on September 20 and 21, 200l.
422 SCOTT: Well, that was Dick’s, that’s Dick’s initial
response to anybody that, when he finds out somebody’s
in the IBEW, that’s his initial response.
423 TIM: That’s what he always says?
424 SCOTT: That what he always does.
425 TIM: He always says, well I’ll just send him to
Dayton?
426 SCOTT: I’ll just send him to Dayton, right.
427 TIM: You know that’s not right.
428 SCOTT: That’s when I told him, well he’s [McCoy]
not, I told him, you know he’s [McCoy] talked to me, he
[McCoy] says he doesn’t, he’s going out peacefully,
doesn’t want to come here and organize, make, raise and
cause trouble.13

I would find and conclude that, clearly and unequivocally,
Whitaker communicated the Respondent’s threat to transfer or
assign McCoy to the Respondent’s Dayton operations to induce
him to quit.14
I would further find and conclude that under the circum-
stances, including McCoy’s prior announcement that he joined
the Union, his never having been assigned to Dayton, the Re-
spondent’s knowledge that he commuted at least 100 miles
each way to Columbus, and that a Dayton assignment would
entail an additional 60 miles each way to his commute, that
Whitaker’s communication of Dick Smythe’s threat to transfer
McCoy to Dayton was coercive and reasonably tended to inter-
fere with his Section 7 rights in violation of Section 8(a)(1) of
the Act.15
C. The 8(a)(3) Discharge Allegation
McCoy testified that when he returned to work from vacation
on September 10, he reported to Whitaker and asked for the day
off because he had to deal with certain personal matters. Ac-
cording to McCoy, he also told Whitaker that he had joined the
Union and one of the matters he wanted to attend to was to call
the front office and tell management of his decision. McCoy
stated that he did not want the front office to hear of his deci-
sion from some other source; he wanted to be honest with them.
McCoy said that he told Whitaker that he would be leaving
soon, but that he would not (as he described it) “lay down,” he
would continue to work as he had in the past. McCoy said he
did not plan to work that day and did not.
13 The taped conversation also refers in pars. 439, 440, 443, and 444
to McCoy’s being sent to Dayton to induce him to quit.
14 In making this finding, I specifically would find incredible
Whitaker’s testimony that he was merely giving “lip service” to McCoy
or trying to console him and get the whole thing over with in this con-
versation. The actual tape recordings (see GC Exhs. 13 and 14) of this
conversation were played in court, and Whitaker seemed sincerely
supportive of McCoy and forthrightly related his position about the
entire matter.
15 The Respondent argues that the threat to transfer McCoy to Day-
ton was a mere rumor, and never acted on by the Respondent. I reject
this argument. Clearly, according to Whitaker, transferring or threaten-
ing to transfer IBEW workers to Dayton was part of the Respondent’s
standard response to unionists. That McCoy was not actually trans-
ferred is of no consequence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
McCoy stated that he called the Sisson Hall project manager,
Donald Stafford, at around 1 to 1:30 p.m. (on September 10)
and told him that he had joined the (IBEW) Union and that he
would be leaving soon.16 According to McCoy, Stafford asked
him to call the office later and speak to Rick Smythe who was
unavailable at that time.
McCoy said he tried to call Rick Smythe a couple of times
and finally reached him at around 5 p.m. According to McCoy,
before he could tell him about joining the Union, Rick said to
him, I hear you joined the Union, to which McCoy said he re-
sponded yes. McCoy said that he told Rick that he would be
leaving soon. According to McCoy, Rick said, “[S]o now you
are going to start paying to go to work.” McCoy stated that he
took this to be a reference to union dues and reminded Rick that
he was paying $6.50 per day to park while working at the
Sisson Hall project.
According to McCoy, Rick then said that he could work until
the end of the week (September 14), then he had to go.
McCoy stated that he was at a loss for words because he had no
reporting date for a union job17 and did not give Rick a definite
date for leaving. McCoy said the conversation ended on this
note.
McCoy said he reported for work at Sisson Hall the next day
(September 11) and before lunch saw Dick Smythe in the elec-
trical room conversing with Whitaker; both men walked over to
him. According to McCoy, Dick asked him if he had joined the
Union, to which McCoy said he had. Dick then asked him
whom he was going to work for; McCoy said he did not know.
Dick then asked him when he was planning to leave, and
McCoy said he did not know. At this point, according to
McCoy, Dick shook his hand, thanked him for the job he had
done for Buckeye and said that he (McCoy) could work for the
Company for as long as he wanted. According to McCoy,
Whitaker was present during this conversation the entire time
but said nothing.
McCoy stated he thanked Dick and chose not to mention
Rick’s comments and instructions of the day before because he
felt that Dick (being company president and Rick’s father)
called the shots. McCoy stated in fact he was relieved because
he was concerned about having a job and keeping his (medical)
insurance coverage.
McCoy said that on September 12, he went to the union hall
and met with Norris. Once there, McCoy signed a nonunion
salting form.18

16 McCoy said that both Whitaker and Stafford positively received
his announcement and told him he was a good worker; Stafford said he
hated to lose him and wished him luck.
17 McCoy said that when he joined the Union (by signing the au-
thorization card) on September 7, 2001, he also signed the Union’s out-
of-work book. However, he was informed by the Union’s business
agent, Bill Hamilton, that at the time the Union did not have any work.
Hamilton testified at the hearing and confirmed that at the time McCoy
signed on, he explained the Union’s referral system, that McCoy was
number 27 on the out-of-work list and that he should not expect auto-
matically to have a job simply because he was now a member of the
Union.
18 GC Exh. 4. This form informs the reader that McCoy was a mem-
ber of the Union and has agreed to participate in the Union’s salting
Norris also gave McCoy “Buy American”19 and IBEW stick-
ers and a copy of a “Guide to Union Membership Benefits
booklet.” McCoy stated that Norris instructed him to give any-
one interested in joining the Union the booklet, but only during
nonworking hours. According to McCoy, Norris said he would
fax the nonsalting form to the Respondent.20
McCoy reported to work on September 13 and he placed the
union sticker on his hardhat; he put the “Buy American” sticker
on his hardhat either on September 13 or the next day. Accord-
ing to McCoy, after work on September 13, he placed his hard-
hat on a shelf in the work trailer which served as Whitaker’s
office.
McCoy also stated that on September 20, at around the
lunchbreak (11:30 or 12 noon), he spoke to his fellow workers
about the Union and mentioned that if anyone were interested
in union membership, its benefits and rights, they were free to
read the guide booklet which he left on the picnic table in the
lunch area at the site.
McCoy stated that at about 1 p.m. on September 20,
Whitaker told him he was to call the main office and speak to
Rick at 2:30 p.m. Unsure of what was in store for him, McCoy
stated that he decided to call Norris who advised him to tape
any conversation with management.21
As requested, McCoy called Rick at around 2:30 p.m. from
the Sisson Hall site and taped the ensuing conversation.22

TIM: Yea, this is Tim McCoy. I was supposed to call
him at 2:30.
B.E.: Okay, hold on, cause he’s on long distance, hold
on.
[Pause]
RICK: Hello.
TIM: Rick?

program by working for the Respondent to assist the Union in organiz-
ing effort. Both McCoy and Norris signed this form.
19 The “Buy American” sticker is contained in GC Exh. 5; and the
IBEW sticker is contained in GC Exh. 6; the booklet is contained in GC
Exh. 7.
20 Norris testified that he explained the salting form to McCoy, say-
ing it essentially allowed him to be a volunteer organizer and would
protect him under the Act. Norris said he told McCoy that he would be
faxing the form to different people, including Buckeye, informing them
of his organizer status. However, Norris did not fax this form. Rather,
Norris faxed to the Respondent a copy of a letter he sent to the Re-
gional Director for Region 8. This letter (GC Exh. 16), inter alia, in-
forms that the Union had commenced an organizing campaign at the
Respondent and that McCoy was a volunteer organizer. Norris pro-
duced a fax transmittal sheet indicating that the Respondent received
this letter on September 17 at 12:07 p.m. (GC Exh. 17).
21 McCoy stated that on September 19, 2001, he met with Norris at
the hall and was given a mini tape recorder. Norris instructed him to
tape any conversations he may have with management.
Norris testified that he provided McCoy with the recorder and in-
structions to record anytime McCoy thought he was being improperly
disciplined or anything about his affiliation with the Union. According
to Norris, because McCoy was confused about the call to Rick, he
instructed him to record the conversation.
22 See GC Exh. 8, the transcript of this conversation. [As previously
noted, GC Exhs. 13 and 14 contain the original tapes played in open
court.]
BUCKEYE ELECTRIC CO. 339
RICK: Yea.
TIM: This is Tim.
RICK: Hey Tim, what’s going on?
TIM: Not much. Scott told me I needed to call you at
2:30 p.m.
RICK: Oh, okay. Uh, I guess tomorrow is your last
day then, right?
TIM: Not that I was aware of.
RICK: Well, you put your two weeks’ notice in, so,
um, you need to turn your keys and stuff into Scott tomor-
row and—and uh, I appreciate all your help and it’s been
nice working with you.
TIM: I never turned in a two-week notice.
RICK: Yes, you did.
TIM: How’s that?
RICK: You turned one in to Don and you turned one in
to my Dad.
TIM: Nope, no I didn’t.
RICK: Well, I mean, you turned it in and uh—
TIM: No, I called on Monday.
RICK: As of, uh, this—this Friday, I mean, that the
two weeks, so uh—
TIM: On a Monday, I called, er, talked to you and told
you that, uh, I had joined the Union and I would be leav-
ing Buckeye Electric soon. So that there would be no se-
crets, but I never turned in a 2-week notice, cause I didn’t
know for sure when I was leaving and uh, until, you know,
how can I turn in a 2-week notice if I don’t know?
RICK: You turned it in and we are acting on your no-
tice, uh—
TIM: I never gave a notice.
RICK: Huh?
TIM: I never gave a notice
RICK: You gave a notice, Tim. Um, as of Friday, um,
you know.
. . . .
RICK: Friday is your last day and uh, um, we’re taking
up your two-week notice and uh—
TIM: I never gave a two-week notice, but uh—
RICK: —and uh, you know, it’s been a pleasure work-
ing with you and wish you luck.
TIM: I think the luck’s with me.
RICK: All right.
TIM: You know it,—
RICK: —and uh
TIM: I don’t—I never turned in a two-week notice,
and uh—
RICK: Well—
TIM: If Don says I did, then I, well uh, uh, that’s, uh,
that’s a flat lie, I never said that, I, all I said—
RICK: My Dad said you turned one in and so did Don
and uh, uh, basically, you know, that’s what we were tak-
ing, uh, your notice and uh, and uh, we’ll go from there.
TIM: Okay, buddy.
RICK: Okay.
TIM: Thank you, Rick.

McCoy reported to work on September 21 but stated that he
did not actually intend to work because he was a nervous
wreck—he was unemployed and had not made arrangements
for family medical insurance. McCoy stated that after the con-
versation with Rick, he planned only to come in, turn in his
keys, retrieve his personal tools, and essentially muster out.
McCoy said he did, however, speak with Whitaker and took
that opportunity to tape this conversation.23
McCoy stated that he went home and attempted to reach
Stafford but was unsuccessful.24
However, on one of his subsequent attempts to speak with
Stafford, McCoy said he spoke to Dick Smythe and he taped
this conversation.25

DICK: Hello.
TIM: Don?
DICK: No, this is Dick Smythe.
TIM: Dick?
DICK: Yea.
TIM: This is Tim McCoy.
DICK: Yea, what can I do for you, Tim?
TIM: Uh, I was talking to Rick there yesterday. He
said that uh, you and Don said I turned in a two-week no-
tice
DICK: You told me on, on Tuesday of last week, that
you went to work for the Union and you were going to
leave on Friday and I told you, you could stay until next
Friday.
TIM: No.
DICK: You said that would be fine.
TIM: No, I said, you know, I said I had joined the Un-
ion and you—
DICK: No, that is not what you said.
TIM: Uh—
DICK: You also picked up your tools today and packed
up, and turned in all your stuff.
TIM: Well, that’s because Rick told me yesterday that
I had to.
DICK: No, no, he didn’t tell you that, he told you that
you could finish out the day.
TIM: He told me—
DICK: And you didn’t do that.
TIM: He told me yesterday that I was to turn in my
tools because today was going to be my last day. And that
we—
DICK: That’s correct.
TIM: That was the first time I had heard of that.
DICK: You told me. I’ve got, I’ve got it all written
down, uh, you not only told him, you told Don, you told
everybody that you were, you went to work for the Union,

23 The transcript of this September 21 conversation in contained in
GC Exh. 10. Again, note that the original tape recording of this con-
versation was played in open court and is contained in GC Exhs. 13 and
14.
24 McCoy taped his unsuccessful attempt to contact Stafford. The
transcript of this call is contained in GC Exh.11.
25 The transcript of this taped conversation, also played in open
court, is contained in GC Exh. 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
were going to work, were going to have a place to park
your car.
TIM: No.
DICK: I, I, I’m more than happy for you.
TIM: And I appreciate that but I, I, I didn’t quit and I
didn’t turn in a two-week notice.
DICK: Well.
TIM: I said that I had joined the Union and that I
would be—
DICK: That’s not what you told me. That is not what
you told me.
TIM: Sir, I said that I had joined—
DICK: Hey, I’m not gonna argue with you.
TIM: Right.
DICK: You know, uh.
TIM: I’m not trying to—
DICK: Well, you went to work for the Union and you
told me, you told me you were turning in your notice, and
that’s exactly what we talked about. This was on the 11th.
TIM: I said that—
DICK: That was the day that I was up there.
TIM: I said—
DICK: I, I, I marked it down, I have it written down.
You not only told me. You told everybody else.
TIM: No, I told you that I had joined the Union and I
would be leaving Buckeye soon and you ask me who I was
gonna go work for.
DICK: I didn’t ask you anything.
TIM: And you said—
DICK: I don’t care who you are going to work for.
TIM: And then you ask me when I was leaving.
DICK: No, you told me that you weren’t, you would
like to stay another week and I said fine, next Friday can
be your last day.
TIM: No, you ask me—
DICK: That’s exactly what I told you
TIM: No, you ask me when I was leaving and I said I
didn’t know, because at the time I didn’t. Yes, I had
joined the Union but I didn’t know when they were gonna
call me.
DICK: I’ll tell you what Tim, I know that you told me
and all I can say is you talk to your Union and you do
whatever you have to do. I know that you quit.
TIM: No.
DICK: I have witnesses that you quit, you picked up
your tools and walked off the job this morning, didn’t fin-
ish out the day. As far as I am concerned, you no longer
work for Buckeye.
TIM: Well, I was, I was under a lot of stress because as
of yesterday was the first that I knew today was my last
day.
DICK: No, no, no. It’s not the first you knew. It’s
when you turned in your notice.
TIM: Well, I wanted—
DICK: Evidently, evidently, the A team that called you
up, doesn’t want you.
TIM: No, that’s not true.
DICK: Evidently, because what you’re saying is you
wanta stay and work for Buckeye.
TIM: I wanted to stay and work until they, until I got
another job, yes.
DICK: Well, hey, you know, you told me, you turned
in your notice.
TIM: I just—
DICK: And as far as I am concerned, you no longer
work for Buckeye.
TIM: I never turned in a notice, I just said—
DICK: Yes you did, yes you did, you told me you
would only work till Friday and I said you could work to
the next Friday if you want to and you said okay, I’ll
work, I’ll work till next Friday.
TIM: No, I, I—
DICK: You didn’t even work the next Friday, you took
off.
TIM: Well, I had that bombshell dropped on me yes-
terday.
DICK: Oh—
TIM: You know and I—
DICK: It’s not a bombshell, it’s something you, you
know, you turned in your notice and now, now, it’s a
bombshell.
TIM: I just—
DICK: Tim, I, I really, I’m gonna end the conversation.
I wish you the best of luck, good luck with the Union.

McCoy insisted that he never gave Stafford or the Smythes any
2-week notice of his intention to quit or that he would work
only until Friday, September 21; nothing was mentioned be-
tween September 11 and 20 in any conversation with anyone in
management about a final date. McCoy stated that he had no
other job lined up with the Union prior to September 21 and
could not have told Stafford or the Smythes that he had a job.26
The Respondent called Don Stafford, Rick and Dick Smythe,
and Scott Whitaker.
Don Stafford recalled that he had a discussion with McCoy
about his leaving the Respondent’s employment and that
McCoy told him that he had found a new job. Stafford stated
that as was his custom, he told McCoy at the time—after
McCoy had returned from his vacation—that he could work
until the end of the week. Stafford related that in late August
(the 28th), McCoy told him that he was unhappy with having to
pay for his own parking at the Sisson Hall site. Stafford said
that he told McCoy that he could do nothing about the matter
because if he paid for his (McCoy’s) parking, he would have to

26 The Genral Counsel called Bill Hamilton, the Union’s business
manager. Hamilton testified that he told McCoy at the time he joined
the Union that the Union had no work for him at that time, that he did
not have to quit his job at Buckeye. Hamilton said that McCoy was
placed on the Union’s out-of-work list which had 26 names on it at the
time. Hamilton stated he was the sole union official who made refer-
rals and McCoy was not scheduled for any short- or long-term jobs
before September 21. Hamilton said that after McCoy was discharged,
he requested a job. Hamilton said he placed McCoy on the Union’s
short call list—jobs lasting 14 days or less; and approximately a week
later, Hamilton referred McCoy to a short-term job at a utility com-
pany.
BUCKEYE ELECTRIC CO. 341
pay for all of the other workers. Stafford stated that McCoy’s
announcement followed on the heels of this but that McCoy did
not give him a time frame for his departure. Consequently,
Stafford said he told McCoy he had until the end of the week
which would have been September 14.
Stafford stated that he believed he discussed the matter with
Rick Smythe, informing him that McCoy had found employ-
ment elsewhere. During the course of the week of McCoy’s
disclosure, he came to understand that McCoy was being al-
lowed to work through the following week, September 17–21,
by Rick or Dick Smythe.
Stafford admitted that he had nothing to do with the exten-
sion and, in his view, he took McCoy’s initial announcement as
his only notice of resignation. Stafford could not recall whether
McCoy told him he had joined the Union.27 However, he re-
called that Whitaker later told him that McCoy had joined the
Union and, in fact, he had a union sticker on his hardhat.
Rick Smythe testified that on September 10, McCoy told him
that he had found another job and would be leaving soon,
which he interpreted to mean that McCoy was resigning. Con-
sequently, he gave McCoy the balance of the week—until Sep-
tember 14—to get any loose ends tied. Rick admitted that
McCoy also told him at the time that he had joined the Union.
However, according to Rick, he made the decision to give him
until the end of the week because it was his rule of thumb to
give resigning employees an option to work out the week, or
perhaps longer in some cases. Rick said that McCoy, in the
end, was given an additional week ending September 21 by his
father, Dick.28 Rick denied that McCoy’s union membership or
activities was in any way involved in his decision. Rick stated
that the sole motivation for him was McCoy’s having found
another job and, since McCoy was an at-will employee, man-
agement was free to set a day for his departure.
According to Rick, he was not aware of any union activity at
the Sisson Hall site, and he had not before the hearing seen the
non-salting form signed by McCoy, the union stickers, or the
union benefits guide.29
Rick stated that his call to McCoy on September 20, was
merely a reminder to him, that his last day was Friday, Septem-
ber 21, and that he should turn in his keys—a standard proce-
dure of the Company. Rick insisted that McCoy never said, “I
will be leaving soon,” because he would not have considered
this to be indicative of a resignation.30

27 Stafford acknowledged, however, that in a February 2002 affida-
vit, he averred that McCoy did say to him that he had joined the Union.
(Tr. 175.) Stafford was not sure his affidavit was true.
28 Rick stated that some time between September 11 and 20, he
spoke with his father regarding McCoy’s employment and his father
said that McCoy had given him a 2-week notice on September 11.
Consequently, McCoy was given an additional week.
29 Rick admitted, however, that “it [was] safe to assume” that he saw
at some point a letter from the Union to the Regional Director indicat-
ing the union organizing campaign and McCoy’s volunteer organizer
status. This letter will be discussed later in the decision.
30 Confronted with a document he signed on September 21, 2001,
Rick admitted that he did not mention therein that MCoy said he found
another job but that he had joined the Union.
Rick acknowledged that on September 20, McCoy obviously
did not believe that he had given 2 weeks’ notice of his inten-
tion to quit. Rick said that he took the view that McCoy had
simply changed his mind, but that he chose not to reconsider
his decision to let him go as originally planned.
Whitaker testified that he conversed with McCoy on Sep-
tember 10 and that McCoy stated he was not going to work that
day because he had some personal matters to attend to. Ac-
cording to Whitaker, McCoy told him that while on vacation,
he had taken a test for admittance to the Union and had been
sworn in on the previous Thursday or Friday; McCoy said that
he was going to sign the out-of-work book of a couple of locals,
one near his residence, and one in Columbus.31 Whitaker said
that McCoy also said that he was going to call Rick and give
him his 2 weeks’ notice; he wanted to tell Rick personally.
Whitaker stated that McCoy reported to work the next day—
September 11—and informed him that Rick had given him until
the end of the week to work. Later that day (about 10 or 11
a.m.), Dick Smythe appeared at the Sisson Hall job and asked
to speak with McCoy. Whitaker took Dick over to where
McCoy was working near the electrical closet and participated
in the conversation for (as he described) the first couple of sen-
tences. Whitaker heard Dick’s opening comment, “So you
joined the Union and McCoy’s response of “yes”; Dick also
asked McCoy where he was going to work. Then, according to
Whitaker, a worker needed his help and he no longer paid at-
tention to the conversation. Once the worker was assisted,
Whitaker said that he rejoined the conversation only to hear
Dick wish McCoy good luck and shake his hand. Whitaker
said he did not hear Dick or McCoy mention anything about a
2-week notice.32 Whitaker said that after September 11, there
were no discussions between himself and Dick about McCoy’s
last day of work.
Dick Smythe testified that on September 11, he visited the
Sisson Hall project because it was his turn to monitor the job.
Dick said that while at the site, he met with McCoy around 11
a.m. in the area of the electrical closet; Whitaker and two other
journeymen electricians33 were present. Dick stated that he had
been told by Rick that McCoy was quitting and would be fin-
ishing up and leaving at the end of the week. Dick said that he
just happened to walk through McCoy’s work area and stopped
to talk to McCoy. Dick said that he did not want necessarily to
talk with him but wanted to wish McCoy luck.
31 McCoy, on rebuttal, testified that on September 10, he never men-
tioned Rick’s name or anything about contacting Rick personally. He
stood by his testimony that he only told Whitaker that he wanted to call
the main office and talk to someone about his decision to join the Un-
ion. He also again denied saying to Whitaker or anyone in manage-
ment that he was going to give Rick a 2-week notice. McCoy also
denied saying anything to Whitaker about signing union out-of-work
books on September 10.
32 Whitaker was insistent that he, himself, was never given a 2-week
notice of intention to resign or quit by McCoy.
33 Dick identified one of the electricians as Tom and another whose
name he could not remember. Whitaker, it should be noted, identified
the two as Tom Hughes and Mike Clofta. Dick stated the two men are
still employed by the Respondent. Neither man testified at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342
Dick testified that McCoy told him that he had joined the
Union and was going to work there. McCoy also said that Rick
had told him he could finish out the week. Dick stated that he
told McCoy that this would be acceptable and also that if he
(McCoy) wanted to stay another week, that would be all right
also. Dick testified that he could not explain his granting
McCoy another week, but that McCoy had said to him that
things (job prospects) were not going to break for another week
and that he was going to work with a former Buckeye Electric
employee, Jim Biggler.34 According to Dick, the conversation
ended amicably with his shaking McCoy’s hand and wishing
him luck. Dick denied telling McCoy he could stay as long as
he desired.
Dick acknowledged his September 21 conversation with
McCoy and stated that (at the time) he was not unhappy with
McCoy’s decision to quit; that McCoy stated he had another
job with the Union. As far as he was concerned,35 McCoy had
simply changed his mind but he (Dick) no longer wanted him
as an employee.
Dick testified that he was not aware of any union activity at
the Sisson Hall site or any Buckeye Electric jobsite.36 Dick
conceded that he did not know precisely when his Company
received the letter from the Union informing of McCoy’s vol-
unteer status and the Union’s organizing campaign at Buckeye
Electric, but, based on the fax transmittal sheet, he must have
seen it on September 17. However, Dick denied seeing any
union literature at the Sisson Hall job and was not aware that
McCoy had left union literature on the jobsite.
Applicable Legal Principles
In cases where employers are charged with violations of Sec-
tion 8(a)(3)37 and (1)38 of the Act, the Board set forth its test of
causation in the case of Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Under this test, for determining, as here, whether an
employer’s layoff or discharge of an employee was motivated
by hostility toward union membership or union activity, the
General Counsel has the burden of persuasion, that protected

34 McCoy, on rebuttal, adamantly denied ever mentioning Biggler to
Dick Smythe in this conversation as well as never telling Dick that he
needed another week because jobs were not going to break for another
week.
35 Dick also acknowledged that in an affidavit provided to the Board
agent investigating this matter, he said he had had no further conversa-
tions with McCoy after September 11. Dick stated he had forgotten
about the September 21 conversation with McCoy.
36 Dick specifically denied ever seeing before the hearing the “Buy
American” sticker and the union booklet, and certainly not at the Sisson
Hall site. Dick had seen the IBEW sticker—he was a former union
contractor—but not at Sisson Hall. Dick also conceded that he was
aware that McCoy wore the IBEW sticker while employed at the Com-
pany, but he had no problem with his wearing the sticker.
37 Sec. 8(a)(3) of the Act (29 U.S.C. §158(a)(3)) makes it an unfair
labor practice for an employer to discriminate “in regard to hire or
tenure of employment or any term or condition of employment to en-
courage or discourage membership in any labor organization.”
38 Sec. 8(a)(1) of the Act (29 U.S.C. §158(a)(1)) makes it an unfair
labor practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7 of the
Act.”
conduct was a substantial or motivating factor in the em-
ployer’s decision.
A prima facie case is made out where the General Counsel
establishes union or protected activity, employer knowledge of
that activity, animus, and adverse action against those involved,
which has the effect of encouraging or discouraging union ac-
tivity. Farmer Bros. Co., 303 NLRB 638, 649 (1991).
If this initial burden is met, then the burden of persuasion
shifts to the employer to prove its affirmative defense, that it
would have taken the same action even if the employee had not
engaged in protected activity.39 If the reasons advanced by the
employer for its action are deemed pretextual, that is, if the
reasons either did not exist or were not in fact relied upon, it
follows that the employer has not met its burden and the inquiry
logically ends. Where an employer asserts a specific reason for
its action, then its defense is that of an affirmative defense in
which the employer must demonstrate by a preponderance of
the evidence that the same action would have taken place even
in the absence of protected conduct. Thus, an employer cannot
simply present a legitimate reason for its action but must per-
suade by a preponderance of the evidence that the same action
would have taken place. Kellwood Co., 299 NLRB 1026, 1028
(1990).
Notably, the Respondent’s defense does not fail simply be-
cause not all of the evidence supports it, or even because some
evidence tends to negate it. [Fn. omitted.] Merrilat Industries,
307 NLRB 1301, 1303 (1992).
It is well settled under Board precedent that the timing be-
tween the employer’s action and known union activity can sup-
ply reliable and competent inherent evidence of unlawful mo-
tive for purposes of the Wright Line analysis. Grand Rapids
Press, 325 NLRB 41 (1998); Kinder Care Learning Centers,
299 NLRB 117 (1990); Alson Knitting, Inc., 301 NLRB 758
(1991). Also, where an employer accelerates a discharge or
layoff of an employee in close proximity to union activity, this,
too, may supply evidence of unlawful motive. IMAC Supply,
305 NLRB 728, 736-737 (1992); American Wire Products, 313
NLRB 989 (1994).
It is also well settled, however, that when an employer’s
stated motives for its actions are found to be false, the circum-
stances may warrant an inference that the true motive is one
that the employer desires to conceal. The motive may be in-
ferred from the total circumstances proved. Moreover, under
certain circumstances, the Board will infer animus in the ab-
sence of direct evidence. That finding may be inferred from the
record as a whole. Fluor Daniel, Inc., 304 NLRB 970 (1991).
D. The Threshold Issue
As a threshold matter, I must determine what McCoy told
management first on September 10 and later on September 11
regarding his employment at the Company. There is no serious
dispute that on both occasions he told the Respondent’s princi-
pals, the Smythes, and agents that he had indeed joined the
Union on September 10 and 11. Whether he told them that he
39 The protected activity includes not only union activities but also
invocation and assertion of rights guaranteed employees under Sec. 7 of
the Act. NLRB v. City Disposal Systems, 465 U.S. 822 (1984); Inter-
boro Contractors, 157 NLRB 1295 (1966).
BUCKEYE ELECTRIC CO. 343
had another job and would be leaving soon is, in my view, cru-
cial to the resolution of the underlying charge of unlawful dis-
charge. Thus, credibility looms large in my determination of
the charge. A few words on credibility. It became clear to me
early on in that this litigation would largely turn on the testi-
mony of the witnesses. Accordingly, I paid very careful atten-
tion to the demeanor aspect of their testimony at trial. As is
obvious, I have also been meticulous in recounting the material
testimony of each person in this matter.
Thus, as to the threshold issue, I would conclude that on Sep-
tember 10 and 11, McCoy informed management that he had
joined the Union and would be leaving soon. I would further
conclude that he did not tell management at any time, but spe-
cifically on those dates, that he had another job, was working
for the Union, would be working with another former em-
ployer, or had given the Respondent 2 weeks’ notice of his
intention to quit.40 My reasons are as follows:
As I have previously stated herein, I found McCoy to be a
remarkably honest person. From the beginning, as he consis-
tently testified, he wanted to be honest with his employer re-
garding his joining the Union and desiring to leave at some
point. However, it is clear on this record that he did not have
another job lined up with the Union, so he could not have said
that he had a job.41
Also, McCoy convinced me that given his particular circum-
stances, including his supporting a family and having need for
medical insurance as well as his demonstrated and recognized
work ethic, that he would not resign his employment with Re-
spondent with no job prospects. Also, given his tape recorded
conversations with Whitaker and the Smythes, he clearly dis-
puted having given the Respondent any notice that he was quit-
ting on September 10 or 11 to take another job. I further be-
lieve that he was told by Dick Smythe that he could stay with
the Company for as long as he desired. Contrary to Dick
Smythe’s assertion, I believe there was ample reason for
Smythe to offer McCoy this option—McCoy was a proven
good and reliable electrician and was willing to commute 200
miles per day to work for the Respondent.42 Notably, over his
time with the Respondent, McCoy never required discipline.
Moreover, it is clear from the tape recorded conversations that
McCoy was liked by his supervisors and other colleagues and
was very respectful to his superiors, even in the face of a seri-
ous disagreement with them about his employment.
The Respondent’s witnesses presented a fairly unified front,
maintaining essentially that McCoy had told each man that he
had found another job (or) was giving notice (2 weeks), and

40 I note on this latter score, Dick Smythe conceded at my question-
ing at the hearing that actually McCoy did not give 2 weeks’ notice.
Rather, Smythe said he gave McCoy 2 weeks to quit and called it 2
weeks’ notice because he gave him 2 weeks to leave. (Tr. 245.)
41 In this regard, I have credited Hamilton who, among other things,
testified at length about the Union’s referral system and, more impor-
tantly, that McCoy was never scheduled for a union job prior to his
discharge.
42 See GC Exh. 2, McCoy’s employee evaluations which indicate
that he was highly evaluated by his foreman during calendar years 2000
and 2001. Also, McCoy received an employee of the month award on
December 13, 1997. (See GC Exh. 15.)
would be leaving the Respondent’s employ soon. However, I
found the testimony of each of the Respondent’s witnesses
unpersuasive on this point. In the case of Whitaker, his taped-
recorded conversation with McCoy, in my view, undermined
his court testimony which seemed evasive and noncommittal
and yet overly protective of management. Stafford’s testimony
was contradictory, hesitant, and actually confusing. Rick
Smythe, in my view, exhibited hostility to McCoy’s initial an-
nouncement of joining the Union but claimed in a self-serving
way that McCoy’s termination was handled the same way he
handled resignations of other employees; he offered no proof
on this point save his testimony.
According to Rick, however, there was no specific company
policy dealing with the situation of an employee who informs
him that he has found another job. He employed his own rule
of thumb in such situations. Rick also said that the Company
experiences a “pretty low turnover rate,” leaving one to guess
when he ever applied his rule of thumb to allow employees to
work out the rest of the week in which they announce a resigna-
tion. This seemed contrived to me.
Dick Smythe stated not only did McCoy tell him that he had
joined the Union but was going to work for it. This, to me, was
far off the mark and simply incredible. I note that Dick Smythe
in the end converted his testimony that McCoy gave him his 2
weeks’ notice to the Company to Dick’s actually having given
McCoy 2 weeks to quit. Again, Smythe’s testimony simply did
not ring true.43
Having found that McCoy did not tell anyone in manage-
ment that he had found another job, I turn to the issue of
McCoy’s discharge on September 12 and specifically whether
his termination was unlawful under the Act.
Conclusions
I would find and conclude that the General Counsel has
made out a prima facie case per Wright Line. First, it is undis-
puted that McCoy announced his having joined the Union to
not only his immediate supervisor but ultimately to the Com-
pany’s president and vice president. Second, McCoy credibly
testified that while at least at first he did not intend to engage in
organizing activities, he later did engage in activities supportive
of the Union’s organizing objectives. The record supports a
finding that the Respondent was aware of his activities. It
should be noted that Stafford testified that he found out from
Whitaker that McCoy had a union sticker on his hardhat.
Whitaker stated (in the taped conversation of September 20)
that Stafford on about Tuesday, September 18, saw McCoy’s
hardhat with the sticker affixed and got the “red ass” (irritated)
over the display and said it was unfair for McCoy to advertise
for another company while still working for Buckeye.
Whitaker, himself, confessed to being irritated over McCoy’s
wearing the sticker on his hardhat. Dick Smythe also reluc-
tantly admitted he was aware of McCoy’s wearing the sticker
but said he had no problem with this.
43 I might add that Dick Smythe’s credibility was seriously damaged
by his having “forgotten” his last conversation with McCoy on Sep-
tember 21 (the taped one). I agree with the General Counsel that that
was a very memorable event and this lapse of memory seems inexpli-
cable.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 344
McCoy stated that in addition to wearing the union sticker,
he also talked to his fellow employees about the Union; he also
left the union booklet at the jobsite on September 20, a few
hours before he received the “reminder call” from Rick
Smythe.44 However, irrespective of this evidence, which, in my
view, in itself satisfies the knowledge element, there is the let-
ter faxed by the Union to the Respondent on September 17, a
Monday, admittedly received by both Smythes, which removes
all doubt regarding this issue. It can hardly be gainsaid that
Respondent did not know of McCoy’s activities in support of
the Union before he was discharged.
Regarding the issue of animus, it seems clear that the record
well establishes the Respondent’s hostility to unions and union
supporters. First, there is Rick Smythe’s somewhat snide re-
mark to McCoy that he now was going to pay to go to work, an
obvious reference in my mind to the union dues requirement.
Second, there is Whitaker’s testimony that the Respondent
almost reflexively sends or threatens to send Columbus-based
union workers to Dayton to induce them to quit. Third, there is
Dick Smythe’s acerbic statement to McCoy in the September
21 tape that “evidently the A team that called you up, doesn’t
want you,” which in my view practically exudes animus. Fi-
nally there is the aforementioned September 17 letter from the
Union that identified McCoy as a volunteer organizer for the
Union’s organizing campaign at Buckeye Electric. Needless to
say, a scant 3 days later, coupled with McCoy’s distributing the
union booklet, McCoy gets the reminder call that his last day
would be the next day. Thus, with the Respondent’s expressed
hostility, as well as the suspicious timing between the Union’s
notice and McCoy’s on-the-job activities in support of the Un-
ion, I would find and conclude that the animus element of
Wright Line is amply established by the General Counsel.
The Respondent’s principal defense is that McCoy an-
nounced his intentions to leave the Company on September 10
and again on the September 11; that McCoy was an at-will
employee and, therefore, the Respondent was free to terminate
him. I agree that as an at-will employee, McCoy could either
quit or be terminated by the Respondent for no reason and
without notice. In my view, the Respondent could have law-
fully terminated McCoy on September 10 when he announced
that he had joined the Union and would be leaving soon. In
fact, Rick Smythe’s initial decision to give McCoy until the end
of the week, September 14, probably posed no violation under
the Act. However, Dick Smythe intervened and, as I have
found, told McCoy he could stay employed with the Company
for as long as he desired. The elder Smythe probably granted
this concession because Whitaker told him that McCoy would
not organize, “make noise and trouble,” and McCoy was re-
garded as a good and reliable electrician and mechanic. Still,
the Respondent could awfully have terminated McCoy based
on his at-will status. However, it is clear that the Respondent
cannot terminate employees because of their union activities. I
believe that it was principally the Union’s letter, combined with

44 I will note at this juncture that I find it highly suspicious that
McCoy would receive this call from Rick Smythe on the very afternoon
he leaves the union booklet on the lunch table and is talking to other
employees about union benefits.
McCoy’s own organizing efforts which started with his initially
wearing a union sticker and ended with his talking to the work-
ers and distributing literature, that caused the Respondent to
accelerate his departure from the Company. I would so find
and conclude. I also find and conclude that the Respondent’s
proffered justification for discharging McCoy, his purported
resignation, and giving 2 weeks’ notice of his intention to quit
was a pretext, manufactured by the Respondent to cover its
termination of him because of his engaging in union organizing
activities.
CONCLUSIONS OF LAW
1. Buckeye Electric Co., the Respondent herein, is an em-
ployer engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By its supervisor’s threatening employees with more on-
erous working conditions because of their support of the Union,
the Respondent violated Section 8(a)(1) of the Act.
4. By discharging employee Tim McCoy because of his un-
ion activities, support, and sympathies, and to discourage em-
ployees from engaging in these and other protected activities,
the Respondent violated Section 8(a)(3) and (1) of the Act.
5. By the aforesaid conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
6. The Respondent has not violated the Act in any other way,
manner, or respect.
REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices warranting a remedial order, I shall recommend
that it cease and desist from engaging in such conduct and that
it take certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent having discriminatorily discharged Tim
McCoy, I shall recommend that it be ordered to offer him rein-
statement and make him whole for any loss of earnings and
other benefits, 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 New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended45
ORDER
The Respondent, Buckeye Electric Co., Dayton, Ohio, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployees for engaging in activities supportive of the Union,
seeking both membership in the Union and the benefits of
45 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
BUCKEYE ELECTRIC CO. 345
membership in the Union, and engaging in concerted activities,
and discouraging employees from engaging in these activities.
(b) Threatening employees with more onerous working con-
ditions because of their support of the Union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following action necessary to effectuate the poli-
cies of the Act.
(a) Offer Tim McCoy full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement, less
any net interim earnings, plus interest.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the discharge of Tim McCoy and,
within 3 days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him in any
way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form,
necessary to analyze the amount of back pay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Dayton and Columbus, Ohio, copies of the attached
notice marked “Appendix.”46 Copies of the notice, on forms
provided by the Regional Director for Region 9, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since January 23, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

46 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”