Campbell Electric Co.

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 825 (N.L.R.B. 2003)

CAMPBELL ELECTRIC CO. 825
Campbell Electric Co., Inc. and Local Union 153, In-
ternational Brotherhood of Electrical Workers,
AFL–CIO. Case 25–CA–27041–1
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
On April 5, 2001, Administrative Law Judge Eric M.
Fine issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed limited exceptions, a supporting brief, and
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, findings1, and conclusions and
to adopt the recommended Order as modified.2
1. During the morning of January 26, 20003 Respon-
dent’s Superintendent Gene Boodt came to employee
Matthew Petruska’s jobsite. Boodt asked Petruska to
whom he had been talking about his wages, inquired how
everyone had found out how much Petruska made, as-
serted that Petruska should not have received his last
wage increase, and stated that if he were Petruska he
would look for another job. The judge found that Boodt
had unlawfully interrogated Petruska by asking him
about his discussion of wages with others, and had
unlawfully threatened Petruska by telling him that he
should not have received his last wage increase, and
should look for another job.
On January 27, Boodt told Petruska that the conversa-
tion the day before was out of line and that he had been
upset about what he had heard. He told Petruska that he
was doing a great job and to keep it up. The judge re-
jected the Respondent’s contention that Boodt’s state-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 addition, the Respondent implies that the judge’s rulings, find-
ings, and conclusions demonstrate bias and prejudice. On careful ex-
amination of the judge’s decision and the entire record, we are satisfied
that the Respondent’s contentions are without merit.
2 As explained, we shall modify the judge’s recommended remedy,
Order, and notice to require the Respondent to offer reinstatement to
employee Matthew Petruska. We shall also modify the judge’s rec-
ommended Order and notice in accordance with Ferguson Electric Co.,
Inc., 335 NLRB 142 (2001).
3 All dates are 2000 unless otherwise specified.
ments to Petruska effectively repudiated Boodt’s unlaw-
ful conduct and that the statements should therefore not
serve as evidence of antiunion animus. We agree with the
judge.
Boodt’s apology did not assure Petruska that the Re-
spondent would not interfere with his Section 7 rights in
the future, and in fact Petruska was unlawfully termi-
nated fewer than 2 weeks later. Furthermore, Respon-
dent President Brown met with employees the same day
as Boodt’s unlawful interrogation of Petruska and stated
that the Respondent “is heading one way and if you are
heading the other, we will shake hands as men and go
our separate ways.” The judge concluded that this re-
mark, coming immediately after the unlawful discharges
of employees Michael Fenrick and Michael Popovich,
referred to the employees’ union activities. Signifi-
cantly, Brown had made a similar statement to Fenrick
and Popovich at the time of their discharges. Thus,
Boodt’s “apology” was not made in a context free of
other unfair labor practices.4 Accordingly, we agree with
the judge’s conclusion that Boodt did not effectively re-
pudiate his unlawful conduct.
2. With regard to the remedy for the unlawful dis-
charges of employees Popovich and Petruska, the judge
found that both of them, before their terminations, had
plans to resign their employment that were sufficiently
definitive to toll their backpay as of the date of their
planned departures. The General Counsel excepts.
The judge relied upon Bardaville Electric Co., 315
NLRB 759, 760 (1994). In that case, the Board denied
the General Counsel’s motion for summary judgment and
ordered a hearing on the issues raised by the respondent
regarding, inter alia, the appropriate backpay period. The
Board noted evidence that before the discharge, the dis-
criminatee had talked with a coworker about terminating
his employment with the respondent and going to work
for another specified employer. The Board concluded
that, to remedy the respondent’s unfair labor practice,
restoring the “status that would have obtained if Respon-
dent had committed no unfair labor practice” was re-
quired. Thus, if the discriminatee had intended to resign
his employment, backpay would toll as of the date of his
planned departure. Id. at 760. However, the Board noted
that, the mere fact that the discriminatee had obtained
other employment after the discharge, would not establish
that the discriminatee had a predischarge intention to re-
sign his employment in the absence of the discharge and
the backpay period would continue to run even after new
employment was obtained. Id. at fn. 6.
4 See Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
340 NLRB No. 93
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
Here, the General Counsel contends that the Respon-
dent’s preemptive termination of the employees created
an uncertainty as to whether they would have resigned.
Thus, the General Counsel, citing United Aircraft Corp.,
204 NLRB 1068 (1973), contends that any uncertainty
and ambiguity must be resolved against the Respondent,
the wrongdoer.
This remedial question implicates two statutory princi-
ples that must be applied. The first principle is that the
remedy should restore the status that would have ob-
tained if Respondent had committed no unfair labor prac-
tice. The second principle is that any uncertainty and
ambiguity regarding the status that would have obtained
without the unlawful conduct must be resolved against
the Respondent, the wrongdoer who is responsible for
the existence of the uncertainty and ambiguity. United
Aircraft Corp., Id. at 1068, 1069 (1973). In applying
these principles we find merit to the General Counsel’s
exception as to Petruska, but not as to Popovich.
Popovich was discharged on January 11. He had spe-
cific and definitive plans to resign before he was unlaw-
fully terminated. On January 11, he was planning to give
notice of his resignation that very day. In fact, it was
only because of circumstances beyond his control that he
had not resigned a day earlier.5 Thus, we agree with the
judge’s conclusion that Popovich was not entitled to re-
instatement and that backpay should toll on the day of
Popovich’s planned departure.6
Petruska’s situation was quite different. As we will
explain, he had not made a decision to leave the Respon-
dent before he was discharged, and his tentative plans
were formed in the context of Respondent’s unlawful
conduct. Petruska testified that he had not made a deci-
sion to leave the Respondent before he was discharged.
Petruska testified that, after a conversation with em-
ployee Popovich, he called Jay Mummy, an organizer for
Local Union 153 on January 10, and obtained informa-
tion regarding the Union’s wages and benefits. On Janu-
ary 11, employees Fenrick and Popovich were unlaw-
fully terminated. On January 22, Petruska, along with
some of the Respondent’s other employees, met with

5 Popovich testified that he had planned to give his two-week notice
on January 10, 2000, but the Respondent’s president, Brown was not in
the office. Thus, Popovich testified that on January 11, it was his intent
to give notice of his resignation when he returned from the jobsite.
However, while on his way to the jobsite, Popovich was recalled to the
office. When he arrived at the office, he was terminated.
6 See Tomahawk Boat Mfg. Corp., 144 NLRB 1344, 1337 (1963). In
that case discriminatee Heil had been unlawfully discharged on October
19, 1962, for conduct occurring on October 12, 1962. However, the
judge found that the respondent had been actively engaged in plans to
terminate Heil (unrelated to any protected activity) from September 14,
1962. The Board therefore tolled Heil’s backpay as of February 4,
1963, the date on which he was replaced.
Mummy. At this meeting Petruska signed a union au-
thorization card and also signed up to take the placement
test for the Union’s apprenticeship program. Evidently,
the test would determine his skill level, which in turn
was to determine his rate of pay. In addition, Petruska
discussed with Mummy what his employment opportuni-
ties would be if he went to work for a union contractor.
Mummy indicated that those opportunities would depend
on his test performance.
On January 25, the Respondent’s president, Brown
called Petruska into the office and, in the presence of
Vice President Tim Gray, stated that he had a problem
with the Union, but could not legally do anything about
it. Brown also told Petruska that, if Petruska saw any
union representatives at the jobsite, he would have to
demand whether they had permission to be there or ask
them to leave.
On January 26, Superintendent Boodt unlawfully inter-
rogated Petruska and also suggested that Petruska should
look for another job. Later on the same day, President
Brown, in a meeting with all of the employees, made a
statement to employees that, if they continued to engage
in union activities, they and the Respondent would go
separate ways. On February 2, Petruska took the place-
ment test given by the Union.
On February 7, Respondent’s vice president, Gray
came into the warehouse and informed Petruska that he
had heard that Petruska had been thinking about going
union. Petruska admitted that he had been thinking about
it. Gray then asked what Petruska planned on doing, and
Petruska responded that he would probably give a 2-
week notice in a couple of weeks. Gray immediately
terminated Petruska.
Petruska testified that before his termination, he was
waiting for his test results before making his decision
whether to leave the Respondent’s employ. Poor per-
formance on the test would have precluded his resigna-
tion. When he was terminated, Petruska had not received
the results of the test. As Petruska later learned, his re-
sults were satisfactory.
On this record, we reject the judge’s finding that
Petruska would have left his employment within 2 weeks
of receiving the results of the test. First, at the time of
his unlawful discharge, Petruska was contemplating giv-
ing notice of his resignation, but not doing so immedi-
ately. He was waiting for his test results, which he did
not have. Nor had he secured a job at the time of his
unlawful discharge. Thus, his plans for future employ-
ment were uncertain at the time of his discharge.
Further, Petruska’s expressed intentions about possibly
resigning were formed in a coercive context. Employees
Popovich and Fenrick had already been unlawfully ter-
CAMPBELL ELECTRIC CO. 827
minated before Petruska had even signed an authoriza-
tion card or signed up for the placement test. Three days
after Petruska met with Mummy, Brown told Petruska
that he had a problem with the Union, and that, if
Petruska saw union representatives on the jobsite he was
to ask them to leave. On January 26, 4 days after
Petruska met with Mummy, Superintendent Boodt
unlawfully interrogated Petruska and suggested that
Petruska look for another job. On the same day, Brown
told the employees, in essence, that if they were involved
with the Union they and the Respondent would go sepa-
rate ways. Finally, Petruska was responding to an unlaw-
ful interrogation by Respondent’s vice president, Gray
when he revealed that he was thinking of resigning.7
Consequently, Petruska’s tentative plans to resign were
tainted by the Respondent’s unlawful conduct.8
Because of the tentative nature of Petruska’s plans to
give notice of his resignation at the time of his unlawful
discharge, as well as the coercive context in which those
intentions were formed and expressed, it is uncertain
whether Petruska would have resigned if the Respondent
had not committed unfair labor practices. In this situa-
tion, as in others, any uncertainty created by a wrong-
doer’s misconduct must be resolved against the wrong-
doer—which the Respondent clearly was.9 Our dissent-
ing colleague would require the General Counsel to
prove that the Respondent’s misconduct actually contrib-
uted to a decision by Petruska to quit his job, and he
finds that the misconduct “does not preclude the infer-
ence that an employee leaves the job to get a higher pay-
ing job.” It was the Respondent as wrongdoer, however,
who had the burden of negating the reasonable inference
that its misconduct affected Petruska. This the Respon-
dent has failed to do.
We therefore shall order the Respondent to offer im-
mediate reinstatement to employee Petruska.10

7 Gray stated: “I hear you are thinking of going to work for the un-
ion.”
8 See Santa Fe Drilling Co., 171 NLRB 161 (1968), enfd. in relevant
part, 416 F.2d 725, 733 (9th Cir. 1969). There the judge found that
discriminatee Gardner “intended to terminate his employment the day
after he was discriminatorily discharged, irrespective of the discrimina-
tion against him.” Thus, the judge recommended that the respondent
not be ordered to offer Gardner reinstatement. The Board did not
agree, finding that Gardner’s decision to seek other employment was
related to the respondent’s numerous unfair labor practices in violation
of Sec. 8(a)(1), which would cause an employee “to be insecure and
think in terms of other employment.” Id. at 162.
9 See, e.g., Be-Lo Stores, 336 NLRB 950, 953 (2001); Wright Elec-
tric, 334 NLRB 1031, 1032 (2001); Altorfer Machinery Co., 332 NLRB
130, 133 (2000); Alaska Pulp, 326 NLRB 522, 523 (1998); United
Aircraft, 204 NLRB 1068, 1069 (1973).
10 See Santa Fe Drilling Co. v. NLRB, 416 F.2d 725, 733–734 (2nd
Cir. 1969), where the Court found that the Board’s order of reinstate-
AMENDED REMEDY
Having found that the Respondent has violated the
Act, we shall order the Respondent to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent unlawfully dis-
charged employees Michael Fenrick, Brian Zache, and
Matthew Petruska, we shall order the Respondent to of-
fer them reinstatement and make them whole for any loss
of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
The Respondent unlawfully discharged employee Mi-
chael Popovich 2 weeks prior to the time Popovich
would have voluntarily terminated his employment. The
Respondent also unlawfully accelerated the resignation
of employee Robert Kellogg by 2 weeks. Therefore we
have determined that the backpay period for each of
these employees is limited to 2 weeks. We shall therefore
order the Respondent to make them whole for any loss of
earnings and other benefits, computed on a quarterly
basis from the date of Popovich’s discharge, or the date
of Kellogg’s accelerated termination, less any net interim
earnings, as prescribed in F. W. Woolworth Co., supra
plus interest as computed in New Horizons for the Re-
tarded, supra.11
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Camp-
bell Electric Co., Inc., Mishawaka, Indiana, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(a).

ment of discriminatee Gardner was “well within its broad powers to
order reinstatement to effectuate the policies of the Act.”
11 In the complaint, the General Counsel seeks a remedial provision
requiring the Respondent “to reimburse any discriminatee entitled to a
monetary award in this case for any extra federal and/or state income
taxes that would or may result from the lump sum payment of the
award.” This aspect of the General Counsel’s proposed Order would
involve a change in Board law. See, e.g., Hendrickson Bros., 272
NLRB 438, 440 (1985), enfd. 762 F.2d 990 (2d Cir. 1985). In light of
this, we believe that the appropriateness of this proposed remedy
should be resolved after a full briefing by the affected parties. See
Kloepfers Floor Covering, Inc., 330 NLRB 811 fn. 1 (2000). Because
there has been no such briefing in this case, we decline to include this
additional relief in the Order here. Superior Protection, Inc., 339
NLRB No. 118 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
“(a) Within 14 days from the date of this Order, offer
Michael Fenrick, Brian Zache, and Matthew Petruska
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
2. Substitute the following for 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. Substitute the attached notice for that of the admin-
istrative law judge.

CHAIRMAN BATTISTA, dissenting in part.
I disagree with the majority’s decision to modify the
judge’s remedial order regarding discriminatee Matthew
Petruska. The judge found that Petruska, prior to the
Respondent’s unlawful discharge of him, had formed a
definite intention to resign his employment with the Re-
spondent. The judge accordingly declined to order the
Respondent to offer Petruska reinstatement, and the
judge tolled the backpay period as of, the time that
Petruska would have resigned his employment even if
the discharge had not occurred.
The majority reverses the judge, ordering the Respon-
dent to offer Petruska reinstatement and not tolling back-
pay. The majority finds that Petruska had formed only a
tentative intention to resign his employment prior to his
discharge. The majority also says that any intention to
resign was tainted by the Respondent’s unlawful con-
duct.
The evidence shows that prior to his discharge,
Petruska had formed a definite intention to resign his
employment. Petruska had taken a union apprenticeship
placement test and was awaiting the results of the test at
the time of his discharge. The Union had advised
Petruska that if he left the Respondent and worked
through the union hiring hall, the Union would provide
Petruska immediate referrals and that his salary on Union
hiring hall jobs would depend upon his score on the test.
Petruska testified that, prior to his discharge, he had de-
cided to leave the Respondent upon 2-weeks notice and
to obtain work through the Union hiring hall if he re-
ceived a satisfactory score on the test.1

1 There is an objective basis for determining a satisfactory test score
that is, a satisfactory test score is a score that would give Petruska an
As with any other case involving an unlawful dis-
charge, the Board should remedy Petruska’s unlawful
discharge by restoring the status quo ante the unlawful
conduct. The status quo ante the unlawful conduct was
that Petruska had taken the test, was awaiting receipt of
his test score, and had decided to leave the Respondent
for union hiring hall jobs, upon the condition that he re-
ceive a satisfactory score on the test. That condition was
fulfilled, i.e., Petruska received a satisfactory score on the
test. Accordingly, even if the discharge had not occurred,
Petruska would have left the Respondent 2 weeks after
receiving the test score. Thus, backpay should be tolled as
of that date, and there should be no reinstatement.
My colleagues say that Petruska was awaiting his test
results and he would then [emphasis added] make a deci-
sion on whether to leave the Respondent. In fact, he had
decided to leave on the condition that the test results were
satisfactory. As noted, that condition was fulfilled, i.e.,
Petruska did, in fact, receive a satisfactory score on the
test. Thus, there was no ambiguity concerning Petruska’s
decision to leave the Respondent’s employ. Accordingly,
this is not a case where a doubt must be resolved against
the wrongdoer. Therefore, the Board’s remedial order
should require only that the Respondent make Petruska
whole through the date that Petruska would have left the
Respondent even if he had not been discharged.
The majority argues that the Respondent engaged in
unlawful conduct prior to Petruska’s discharge, that
Petruska formed his intention to resign in the context of
this unlawful conduct, and that his intention to resign
was tainted by the unlawful conduct. However, there is
no evidence to support the majority’s inference that the
Respondent’s unlawful conduct contributed to Petruska’s
decision to leave the Respondent for the union hiring hall
jobs. Indeed, the more compelling inference is that
Petruska’s decision was driven by his desire to maximize
his salary. It is not unusual, and indeed makes economic
sense, for an employee to leave a lower paying job when
a higher paying job is tendered. The mere fact that
unlawful conduct had occurred does not preclude the
inference that an employee leaves the job to get a higher
paying job. Thus, the Respondent’s unlawful conduct did
not contribute to Petruska’s decision to leave the Re-
spondent, and the majority’s reliance upon that conduct
is misplaced.
The majority suggests that I would “require the Gen-
eral Counsel to prove that the Respondent’s misconduct
actually contributed to a decision by Petruska to quit his
job” and that by doing so I have improperly shifted the

apprenticeship rating with a salary higher than Petruska’s salary with
the Respondent.
CAMPBELL ELECTRIC CO. 829
burden of proof. The majority, however, commingles
two separate burden-of-proof issues.
Where, as here, the General Counsel proves that a re-
spondent employer has unlawfully discharged an em-
ployee, the Board infers that the unlawful discharge
caused the employee to leave and will therefore order the
usual reinstatement and backpay remedy. However, the
Board allows the respondent employer to rebut this infer-
ence by proving that the employee would have left after
the discharge anyway regardless of the unlawful dis-
charge. The Respondent here met this burden of proof; it
proved that Petruska would have quit his job even if the
unlawful discharge had not occurred. At that juncture, the
burden properly shifted to the General Counsel to show
that the decision to quit was caused by the Respondent’s
unlawful conduct. Just as the General Counsel had to
show that the discharge was unlawfully motivated, so too
the General Counsel had to show that the decision to quit
was unlawfully caused. That approach places the burden
of proof on the person most likely to have the evidence as
to why he quit, i.e., on the quitting employee. In addition,
a contrary analysis would require the Respondent to prove
a negative, i.e., that the decision to quit was not [emphasis
added] caused by unlawful conduct.
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
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT direct our employees to ask union of-
ficials to leave the jobsites.
WE WILL NOT coercively interrogate our employees
about their discussions of their wage rates with other
employees.
WE WILL NOT inform our employees that they should
look for another job because they discussed their wage
rates with other employees.
WE WILL NOT inform our employees that they should
not have received their last pay increase because they
discussed their wage rates with other employees.
WE WILL NOT create the impression among employ-
ees that their union activity is futile and may result in
their discharge by informing employees that the com-
pany is heading one way and if you are heading the other
way the employees and Campbell Electric Co., Inc., will
part company.
WE WILL NOT coercively interrogate our employees
concerning their activities on behalf of Local Union 153,
International Brotherhood of Electrical Workers, AFL–
CIO, or any other labor organization.
WE WILL NOT create the impression that our em-
ployees’ union activities are under surveillance.
WE WILL NOT discharge our employees, force them
to quit, or accelerate their resignations because of their
support for the Union.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations
Act.
WE WILL, within 14 days of the Board’s Order, offer
Michael Fenrick, Brian Zache, and Matthew Petruska
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Michael Fenrick, Michael Popovich,
Brian Zache, Robert Kellogg and Matthew Petruska
whole for any loss of earnings and other benefits suffered
as a result of their discharges and Robert Kellogg’s ac-
celerated resignation.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges and/or forced or accelerated resignations
of Michael Fenrick, Michael Popovich, Brian Zache,
Robert Kellogg and Matthew Petruska, and within 3 days
thereafter notify the employees in writing that this has
been done and that the discharges and/or forced or accel-
erated resignations will not be used against them in any
way.
CAMPBELL ELECTRIC CO., INC. AND
LOCAL UNION 153, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFL–CIO

Raifael W. Williams, Esq., for the General Counsel.
S. Douglas Trolson, Esq., of Indianapolis, Indiana, for the Re-
spondent.
William C. Haase III, Assistant Business Manager Local 153,
of South Bend, Indiana, for the Charging Party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was
tried in South Bend, Indiana, on November 1 and 2, 2000. The
charge was filed by Local Union 153, International Brother-
hood of Electrical Workers, AFL–CIO (the Union). The com-
plaint alleges that Campbell Electric Co., Inc. (Respondent)
violated Section 8(a)(3) and (1) of the Act by on about: January
11, 2000,1 discharging employees Michael Fenrick and Michael
Popovich; on February 7 discharging employee Matthew
Petruska; on February 21 discharging employee Robert Kellogg
on receipt of his 2-week advanced notification of resignation;
and on February 24 discharging employee Brian Zache. The
complaint also alleges that Respondent, through its agents and
supervisors, made statements to employees independently vio-
lative of Section 8(a)(1) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, has been a commercial and in-
dustrial electrical contractor in the building and construction
industry at its facility in Mishawaka, Indiana, from where it
annually performs services valued in excess of $50,000 in
States other than the State of Indiana. Respondent admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is an electrical contractor. Steve Brown and Tim
Gray are its president and vice president, with each owning 50
percent of its stock.2 Brown is in charge of sales and Gray is in
charge of accounting. Respondent’s superintendent, Gene Boodt,
is in charge of manpower.3 Respondent had a complement of
about 20 electricians divided between journeymen and appren-
tices. Respondent pays for its electricians to participate in the 4-
year ABC apprenticeship program leading to journeyman status.
On occasion, some of Respondent’s employees serve as leadmen
or working foremen.4 Brown testified Respondent has unwritten
work rules which prohibit theft, require employees to report and
leave at the appropriate time, and prohibit employees from disre-
specting each other through the use of profanity. He testified that
there are no rules as to employee resignation.

1 All dates are in 2000 unless otherwise indicated.
2 Brown's father is a semiretired member of the Union. Prior to his
employment with Respondent, Brown worked for union electrical con-
tractors. Brown was not a union member at the time of the hearing.
3 Respondent admits that Brown, Gray, and Boodt are statutory su-
pervisors and agents.
4 There is no contention that these employees are statutory supervi-
sors.
Brown testified that the Union was active at Respondent’s
jobsites in 1999. The Union held cookouts at the jobsites in the
summer of 1999 and it convinced an employee to leave Re-
spondent’s employ to work for a Union contractor during that
time. Brown testified that he could not stop the Union from
holding the cookouts because it was private property, and the
owners did not want to confront the Union. Brown testified
that, in the fall of 1999, union representatives were coming on
the jobsites and “trying to steal our employees, or convince our
employees” to become members and work for union contrac-
tors by offering them $3 more per hour. Similarly, Boodt testi-
fied that during the last half of 1999 and early 2000, union rep-
resentatives were visiting the jobsites and were at Respondent’s
Southfield site quite often. Boodt testified as follows as to his
knowledge of employees’ union activity:

Q. Were you aware that any employees at Campbell
Electric during late 1999 or early 2000, were you aware
that any employees at Campbell Electric had either been
talking to Union representatives or thinking about leaving
Campbell or going to work for a Union contractor?
A. No. Not a bit.
Q. Had you heard any rumors to that effect?
A. Well, yeah, you hear a lot of rumors. I hear a lot of
it from, you know, several of the other men that so and so
might have been or whatever, but for them communicating
that to me, no.
Q. Okay. What were the rumors that you had had
heard? Did they include names?
A. No. Not specific names.

Respondent witness employee Mark Spodnick testified that he
frequently saw union officials at the jobsites and that he would
inform Boodt of this activity.
Brown testified that he received a call from the Union in De-
cember 1999 or January 2000 resulting in a meeting between
Brown, Gray, Union Business Manager Ed Taff, and Assistant
Business Manager William Haase III around 1 week after the
call.5 During the meeting, the union officials stated that the
Union was distributing literature to Respondent’s employees at
the jobsites. They also gave Brown and Gray materials contain-
ing wage and benefit information which the union officials re-
quested they review. Brown testified that he was told that the
Union was going to continue to recruit Respondent’s employees
to work for union contractors. Taff testified that he told Brown
that he had taken two of Respondent’s employees into the Union
and asked if there would be a problem with their vacation pay.
While Brown testified that the Union did not tender a proposed
contract, I have credited Taff’s testimony that one of the topics
of conversation was the Union’s desire that Respondent become
a union contractor.6 Taff also credibly testified that he pointed
5 Brown estimated that Taff and Haase were elected to office around
June or July 1999.
6 I do not find as credible Brown’s attempt to portray the January
meeting to be solely an effort by the Union to inform Respondent that
the Union was attempting to recruit its employees. Rather, Brown
admitted that he was given sufficient materials by the Union to formu-
late a wage and benefit comparison between that offered by Respondent
and the Union. Brown’s testimony that the Union asked him to review
CAMPBELL ELECTRIC CO. 831
out at the meeting that one of the Union’s assets was its appren-
ticeship program.7
Taff’s credited testimony reveals that Taff and Haase phoned
Gray using a speaker phone in February. Gray was told that a
couple of Respondent’s employees were showing an interest in
the Union’s apprenticeship program and that Respondent could
enter the program if it became a union contractor. Taff did not
name any employees during the call.8
B. The January 11 Discharge of Fenrick and Popovich
Respondent hired Popovich in August 1994 and Fenrick in
March 1995. Both received their journeyman’s cards around
May 1999, after completing the ABC apprenticeship program at
Respondent’s expense. Each served as leadmen while in Re-
spondent’s employ. Popovich’s last written performance ap-
praisal was dated May 26, 1998. He received ratings between
satisfactory and superior, including superior ratings in atten-
dance and punctuality. Fenrick’s last written performance ap-
praisal is dated January 1997. Fenrick received satisfactory to
superior ratings including superior ratings in coworker rela-
tions, attendance, and punctuality. Both employees received a
performance raise on June 9, 1999, and Brown testified that
they were Respondent’s highest paid nonsupervisory personnel.
Fenrick credibly testified that, around mid-August 1999
while alone in the shop, Brown told him that if the shop de-
cided to go union they would close the doors and open the next
day under another name.9 Brown did not specifically deny
making these statements to Fenrick.10 Fenrick’s testimony
reveals that towards the end of November 1999, Boodt came to
Fenrick’s jobsite. Boodt stated that there was a lot of union
activity going on and that he did not think the employees

its wages and benefits buttresses Taff’s credible testimony that the
union officials asked Respondent to consider becoming a union con-
tractor.
7 Haase did not testify and Gray was not questioned about the sub-
stance of this meeting.
8 Based on considerations of demeanor and the record as a whole, I
have found Taff to be a more reliable witness than Gray and have cred-
ited his version of the phone call.
9 I found Fenrick to be a credible witness based on considerations of
demeanor, the specificity of his recollection, and evidence presented in
the record as a whole. The initial charge in this matter was filed on
April 11, 2000, therefore, any remarks made by Brown in August 1999,
are outside the 6-month statutory 10(b) limitations period for a finding
of a violation of the Act. However, these remarks can be considered as
background evidence of animus towards union activity. See Wilmington
Fabricators, Inc., 332 NLRB 57, 60 fn. 6 (2000), and Kaumograph
Corp., 316 NLRB 793, 794 (1995).
10 I do not credit Popovich’s testimony that, during a company cook-
out in September 1999, Brown stated and that if the employees voted
Union, Brown would close the shop and open it under another name.
Brown denied discussing the Union during the cookout and General
Counsel witnesses Fenrick, Petruska, Zache, and Kellogg failed to
corroborate Popovich’s testimony. I do not believe these employees
would have forgotten such a statement if it was made by Brown at a
staff meeting as Popovich alleged. My failure to credit this aspect of
Popovich’s testimony does not require me to discredit all his testimony
which I found, as his memory permitted, to be reliable and for the most
part corroborated by other witnesses. See NLRB v. Universal Camera
Corp., 179 F.2d 749, 754 (2d Cir. 1950).
should switch to the Union because a lot of them were over-
paid, and the Union would not keep all its promises.
Popovich credibly testified that he had contacts with Union
Organizer Jay Mummey in October and November 1999 at the
Respondent’s jobsites when he was given literature detailing
the Union’s wages and benefits. Popovich told both Fenrick
and employee Matt Petruska about one of his conversations
with Mummey.11
At Popovich’s initiative, Mummey met with Popovich and
Fenrick on January 8.12 Popovich testified that they discussed
the Union’s wages, benefits, and its school. Popovich signed a
union authorization card and told Mummey that he had decided
to leave Respondent to work for a union contractor. Mummey
told Popovich that when he started was dependent on when he
gave notice to Respondent in that work was plentiful. Popovich
testified that it was necessary for him to take a journeyman’s
exam before joining the Union to determine his rate of pay.
Fenrick declined to sign a union authorization card at the meet-
ing. Popovich testified as follows as to the purpose of the
January 8 meeting:

JUDGE FINE: Well, was he asking you to come work
for a Union contractor or was he asking you to stay where
you were or what was he asking you?
THE WITNESS: Well, no. He wasn’t—he wasn’t
asking me to specifically stay at Campbell Electric and—if
that is what you are saying—and try to get them to change
over. Is that what—
. . . .
Q. BY MR. WILLIAMS: At any point in time, did Jay
Mummey ask you to leave Campbell Electric to work for a
Union contractor?
A. No, he—he completely reiterated that it was my de-
cision. I mean, he wasn’t going to pressure me in one way
or the other. You know, it was obviously—it was my de-
cision.
JUDGE FINE: It was your decision to do what?
THE WITNESS: To—if I wanted to leave Campbell
Electric and join the Union.

On Monday January 10, Popovich, Fenrick, and apprentice
Jeff Foster were assigned to work 8 hours beginning at 2:30
p.m. at Respondent’s MSC jobsite. Popovich and Fenrick
credibly testified as to the following: Popovich and Fenrick
discussed the Union in Foster’s presence on January 10 in a
breakroom at the MSC jobsite.13 Popovich testified that he told
Fenrick that he was going to give 2-weeks notice to leave Re-
spondent. Fenrick stated that he was going to discuss things
11 Fenrick testified that he met Mummey around the same time pe-
riod, when Mummey gave literature at a jobsite to Fenrick and em-
ployee Robert Kellogg.
12 Mummey and Fenrick corroborated Popovich’s testimony as to the
January 8 meeting. Mummey and Popovich gave different dates as to
their meetings prior to January 8. To the extent that their testimony
varied, I have credited Popovich. I have concluded that the variances in
their testimony were due to differing recollections rather than an intent
to mislead.
13 Fenrick estimated that the conversation took placed around 5:30
p.m., and Popovich thought it was around 4:30 or 5 p.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
with his wife because he was not sure if he would join the Un-
ion. Fenrick testified that they told Foster about their January 8
meeting with Mummey.14
Fenrick’s credited testimony reveals that: Fenrick was the
leadman at the MSC jobsite on January 10. The assignment was
to run buss duct overhead for approximately 250 feet. They had
to cut and hang unistrut in order to hang the buss duct. They
started work at about 2:30 p.m. and Fenrick and Popovich
worked until about 10:15 or 10:30 p.m. Foster left early around
a little after the 5:30 p.m. break. The lift needed to hang the
unistrut would not work and its batteries would not take a
charge. The employees attempted to get the lift operational
between 2:30 to 5:30 p.m. by reading its manual and taking the
batteries out to inspect the connections. They also removed
unistrut from a jobsite trailer. They spent 30 to 45 minutes in
the breakroom, the equivalent to their lunch break. When they
could not get lift working, it was Fenrick’s decision to send
Foster home because he concluded that the remaining task of
cutting unistrut was not enough work for three people.15 Pop-
ovich credibly testified that he told Foster to write 3 hours on his
timecard.
Fenrick credibly testified that he and Popovich cut unistrut af-
ter Foster left using a Sawzall and a band saw. Fenrick estimated
that the unistrut came in 20-foot lengths and that they cut it into
four 5-foot lengths. Fenrick testified that some of the unistrut
was cut by Foster at the jobsite before January 10, but that it was
cut 3 inches too long as Fenrick had given Foster incorrect speci-
fications. Foster had also not cut enough unistrut to complete the
job. Fenrick and Popovich cut the unistrut that was still in 20-
foot lengths and then they recut the ones that were cut the wrong
size. Fenrick estimated that around 15 to 20 of the 20-foot pieces
had been cut before they started and had to be recut. They also
cut 10 to 20 additional pieces that had not previously been cut. It
took around 4 to 5 hours to cut the unistrut.16

14 Respondent called Foster, who remained its employee, as a wit-
ness. When asked if he was aware that Popovich and Fenrick had been
talking to union representatives, Foster replied, “I wasn’t sure. I mean,
they hinted around and stuff, but I didn’t know anything. They never
said it to me for sure.” When asked for a further explanation, Foster
stated, “I didn’t mean about the Union. I just meant that they hinted
around about other jobs and stuff.” Foster’s initial response was to a
question about Popovich and Fenrick’s union activity and I did not find
Foster’s subsequent explanation, considering his demeanor, to be very
convincing. Rather, I find it highly likely that Popovich and Fenrick
discussed their January 8 meeting with Mummey during their next
workday on January 10, and I have credited their testimony as to their
conversation in Foster’s presence as they reported it above.
15 Fenrick testified that he called the shop around 5:30 or 6 p.m. to
let Boodt know that the lift would not work. However, Boodt was not
there. Fenrick testified that Popovich was working on the lift and did
not know he placed the call.
16 I have considered Respondent’s contention that Popovich’s testi-
mony varied from Fenrick’s as to amount of unistrut cut and the tech-
nique used to cut it. However, Popovich corroborated Fenrick’s testi-
mony in material respects in that he confirmed that there were problems
with the lift, and that he and Fenrick cut unistrut after sending Foster
home. While Popovich initially estimated that they cut around 2000
feet of unistrut, he later lessened his estimate to between 700 and 1000
feet. Fenrick’s maximum estimate of the length of material cut, assum-
ing that they worked on about 40 pieces of 20-foot unistrut, including
Popovich credibly testified that: On January 11, Popovich and
Fenrick were scheduled to go to an Applebee’s in Fort Wayne to
change some lighting. When Popovich reported to the shop that
morning, he told Boodt that he wanted to use a company truck to
go to Ft. Wayne because Popovich was having trouble with his
van. Boodt replied that Popovich could not take a company truck
unless Popovich left the key to his van for Boodt’s usage. Pop-
ovich stated that Boodt was not insured to drive his van. Boodt
told Popovich that if he was going to be that way, he might as
well find another job. Popovich handed Boodt the key to Pop-
ovich’s van, slammed his fist down, and told Boodt this is “bull-
shit.” Popovich and Fenrick then left in Respondent’s truck.
Popovich testified that Fenrick did not participate in the conver-
sation with Boodt, that there was no screaming, and the term
“bullshit” was the only profanity he used.17
Popovich and Fenrick drove Respondent’s truck towards
Fort Wayne. However, around 9 a.m. they were paged by Gray
to return to the shop. When they arrived, Gray sent Fenrick
into the office to talk to Brown. Fenrick credibly testified that
Brown stated that he “wanted to make this short and to the
point. The Company was going in one direction and I seemed
to be going in another direction, and that there was nothing
more he could do for me and that was my last day.” Pop-
ovich’s testimony reveals that he was then called in to see
Brown, and Brown made a similar statement to him. Popovich
testified that he shook Brown’s hand and thanked him for the
opportunity. Popovich did not tell Brown that he had intended
to quit. After Brown discharged them, Gray told Popovich and
Fenrick to fill out their last timecard. Fenrick and Popovich’s
credited testimony reveals that they had not been disciplined
prior to their discharge, and that Fenrick had received praise for
his work from Brown and Boodt including remarks made dur-
ing the last few months of his employment.
1. The testimony of Respondent’s witnesses
Respondent witnesses Brown, Boodt, and Foster provided
most of the testimony for Respondent as to the events leading
to Fenrick and Popovich’s termination. I found their testimony
to be inconsistent and unreliable leading me to conclude that
the reasons advanced for the discharges were pretextual.
Brown testified that: Brown discharged the employees, but
Gray and Boodt participated in the decision on the morning of
January 11. Fenrick was “terminated for falsifying timecards,
for insubordination and for his unwillingness to work with oth-
ers and his supervisor.” The timecard that Fenrick allegedly
falsified was the one for the work on January 10 at the MSC
project. Fenrick “turned in eight hours and didn’t work eight
hours.” Popovich was fired for falsification of his timecard and

both uncut and precut pieces, would equal around 800 feet of unistrut.
I have concluded, after considering the witnesses’ demeanor, that the
discrepancies in their testimony were due to Popovich’s poorer recol-
lection of the assignment, rather than an intent by either witness to
fabricate. I have reached a similar conclusion as to variances in their
testimony as to the method they used.
17 Fenrick also testified that he did not participate in the conversa-
tion, that he was about 20 feet away, that he could hear what was said,
and that he did not hear any profanity used. Fenrick testified that they
spoke in raised voices, but were not yelling.
CAMPBELL ELECTRIC CO. 833
insubordination. This involved the same January 10 and 11
incidents for which Fenrick was discharged. When Brown
informed Fenrick and Popovich that they were discharged he
did not ask their side of the story.
It is reflected in Fenrick’s’ personnel file that:

Mike was terminated due to the suspicion of falsification time
records leaving job early. (As Steve passed him on the by
pass one day early) his inability to work w/supervision &
most other employees. The morn of termination, he was party
an argument with Gene, after the argument Gene went to the
jobsite w(h)ere they worked the prior evening to find no work
had been completed. Mike was called back to shop & was
told that he & the company were going in different directions
& his employment was being terminated. . . . Mike then
turned in a time card falsely filled out. Confirming the suspi-
cion. Mike turned in 8 hours for Monday. No time was paid.

It is stated in Popovich’s personnel file that:

Mike Popovich was terminated due to the suspicion of cheat-
ing on time cards (leaving jobs early), his inability to work
with his supervisor. The morning of his termination he was
party to an argument with Gene, after the argument Gene
went to the jobsite where they were to have worked the prior
night to find no work had been completed. Mike was called
back to the office and was told that he & the company were
going in different directions & his employment was being
terminated. He quickly shook Steve’s hand thanked him. He
turned in a time card that was false. Mike turned in 8 hours
for Monday No time was paid.

While he maintained that Fenrick and Popovich were dis-
charged, in part, for falsifying their January 10 timecards,
Brown admitted they did not turn in the timecards until after
they were discharged. Similarly, counsel for Respondent stated
at the hearing, that “I don’t think there is any contention by
Respondent that these—that the timecards for Fenrick and Pop-
ovich for 10th were seen until after they were fired.”
Brown testified that the work at the MSC site had to be com-
pleted in a couple of days. As a result, Brown and Gray spent a
day cutting unistrut and had it delivered to the MSC site. On
January 10, Fenrick and Popovich were supposed to hang the
precut unistrut and drop thread down to hang buss duct. Brown
testified that to his knowledge there was no reason that the
employees could not complete the assignment. Brown testified
that he spoke to Foster on January 11, after the discharges.18
Foster told Brown that the employees spent January 10 in the
breakroom and they were only at the site for 2 or 3 hours, al-
though Foster was told to write 8 hours on his timecard. Brown
testified that Foster also told him that the employees hung one
piece of unistrut. Brown testified as follows as to his conversa-
tion with Foster:

JUDGE FINE: When you talked to Mr. Foster, did he
mention there were any problems on the site?
THE WITNESS: No, he didn’t say there were any
problems.

18 Boodt had spoken to Foster before the discharges.
JUDGE FINE: So there were no problems doing the
work and no problems with the material or anything—
THE WITNESS: Your Honor, Mr. Gray and I person-
ally supplied all the—had all the material ready for them
because this was such a—
JUDGE FINE: Well, I am asking if the conversation
you had with Mr. Foster—you might have thought it
would have been easy—I am saying, did Mr. Foster say
there were any problems actually doing the work?
THE WITNESS: No, absolutely not.

Foster’s testimony undercut that of Brown in several respects
concerning the work performed on January 10.19 Contrary to
Brown’s claim that there was no problem at the site, Foster
testified that there was a problem with the lift needed to hang
the unistrut. Moreover, there was no claim by Foster that the
employees hung any unistrut further contradicting Brown’s
version of what occurred. I find it unlikely that Foster would
not have told Brown that there was a problem with the lift, if
Brown had interviewed Foster as he claimed. In this regard,
Boodt testified that when he questioned Foster later on during
the day of January 11, Foster told him that there was a problem
with the lift.
Foster’s testimony also contradicted Brown’s claim that
Brown and Gray had precut a large amount of unistrut and had
it delivered to the MSC jobsite prior to January 10. Rather,
Foster corroborated Fenrick that prior to, but close in time, to
January 10, Foster had cut unistrut on the MSC job. Foster
testified that he spent half day cutting the material at the direc-
tion of either Fenrick or Popovich. Contrary to Brown’s claim,
when Foster was asked if he saw any other unistrut cut on that
job besides the material he had cut, Foster testified, “I don’t
recall. I don’t think so, but I’m not positive.” I have concluded
that if there was the large quantity of precut unistrut on the job
that Brown claimed, that Foster would have seen and remem-
bered it.
Based on the forgoing, I do not credit Brown’s testimony
that he and Gray cut unistrut and had it delivered to the site
prior to January 10. I have considered Respondent’s witnesses’
demeanor as well as Fenrick and Popovich’s credible testimony
that they spent the evening of January 10 cutting significant
amounts of unistrut at the MSC jobsite. I note that Gray, al-
though called as a witness, failed to corroborate Brown’s testi-
mony that he helped cut the unistrut. I have also considered
Brown’s testimony that, although he is a licensed master elec-
trician, “I don’t do hands on work,” and Gray’s testimony “that
he was not an electrician.”20
Foster’s testimony was also internally inconsistent. He ini-
tially testified that after plugging in the lift on January 10, the
19 Foster was a first-year apprentice when he testified.
20 Boodt gave a third version of the work to be performed on January
10 at the MSC job. He testified that not one piece of unistrut was
mounted. Boodt initially testified that he thought that they had to cut
the unistrut at the jobsite but then testified that either Brown or Gray
had cut “a bunch” of the unistrut in the shop. Boodt testified that he did
not think that there was a saw on the job to cut the unistrut. This asser-
tion was contradicted Foster's testimony that he had spent a half day
cutting unistrut at the site.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
employees remained in the breakroom for a couple of hours.
They then checked on the lift and Foster was told to go home
and to write 8 hours on his timecard by both Popovich and
Fenrick. Foster testified that they told him, “[T]hat we were all
going home.” However, Foster’s testimony subsequently
changed. When asked if Popovich and Fenrick said what they
were going to do, Foster testified, “I don’t remember for sure.
As far as I know, they went home, too?” Foster testified that he
did not see them go home.21 When Foster was subsequently
asked how he knew that Popovich and Fenrick left early, Foster
testified that, “I didn’t. I just assumed because they said that
they were—you know, they told me to go home. We had left
early times before and they had gone home.” Foster then testi-
fied that Fenrick and Popovich did not say what they were go-
ing to do after Foster left.
Boodt and Foster also testified in an inconsistent fashion as
to their initial conversation on January 11 as to what occurred
at the MSC jobsite on January 10. Boodt testified that he spoke
to Foster about the work at about 6 or 6:30 a.m. on January 11.
Boodt testified that he asked Foster how the job went last night,
and how much they accomplished. He testified that Foster
never really answered Boodt’s question. However, Foster testi-
fied that when he reported to the shop the morning of January
11, Boodt only asked him what time they left work the night
before, and Foster told him that he did not know. When asked
if Boodt had asked him anything about the work at the site,
Foster replied, “Nope.”
Brown testified that he arrived at work at around 7:45 a.m.
on January 11, and he was told by Boodt that an argument had
taken place. Concerning Fenrick’s alleged insubordination
Brown testified that:

A. On the morning that he was fired, he was party to a
very heated conversation with Gene Boodt, his supervisor,
and things were said. I wasn’t there so I don’t know ex-
actly what was said. I only know what I was told. I had
other employees that were there that said it was so bad
they walked out, that they were embarrassed for what was
being said.
Q. What was supposedly so bad?
A. I wasn’t there. I don’t know other than the fact that
there was a lot of profanity used.

Brown testified that profanity was used by both Fenrick and
Popovich and that he received this information from Boodt and
employees Chris Runyan and Mark Spodnick, who were pre-
sent for the argument.22 Concerning Fenrick, Brown testified
that:

A. This was more so the icing on the cake, to be honest
with you. He was now arguing. After I had—after he had
asked me specifically to have a meeting about not having
Gene be involved in his work, now I come into work and I

21 Foster also testified that he did not overhear Fenrick and Popovich
talking about the Union that evening, testimony that I have discredited
for reasons set forth above.
22 Spodnick did not testify about the argument on January 11, al-
though he was called by Respondent to testify about other matters.
Runyan was not called to testify.
find out from two employees and Gene that they are now
engaging in an argument that was so bad that other em-
ployees left the shop.

Brown’s claims as to the January 11 argument were under-
mined by Boodt’s testimony. First, contrary to Brown, Boodt
testified that Fenrick did not participate in the January 11 ar-
gument.23 Boodt testified that the argument was with Popovich
and that “Mr. Fenrick didn’t say anything that morning at all.”
Boodt testified that Popovich became very aggressive when
Boodt asked to use Popovich’s van in exchange for using
Boodt’s company truck. When asked what Popovich said,
Boodt testified:

THE WITNESS: Boy, it’s hard to say exactly specifi-
cally what he said, but he just told me, “You ain’t using
my van.” And I go, “Well, I need to use something.” And
he says, “Well, you’re not using my van,” and he was go-
ing to take his van home and not leave it parked there at
the shop and I said, “Well, you know, I need a vehicle to
get home. You’re taking my vehicle. Can I at least drive
it home?” And he basically said no, you’re not taking my
vehicle at all. And I said okay. So, I let it ride. I’m fairly
easy, I think, to let it ride, and he went on. He took my
truck, took the credit card and then left.
JUDGE FINE: Did he say anything else?
THE WITNESS: Well, the only thing else that we had
talked about was the amount of time that it may take to do
the job.

Boodt subsequently changed his testimony as to the argu-
ment with Popovich on the morning of January 11. Boodt testi-
fied that “when Popovich gets irate, he cusses a lot and there
was a lot of bad language that morning.” However, Boodt
could not get more specific about what Popovich said. Boodt
testified that he did not speak that language. When pressed he
testified that Popovich “says God and damn and you know, just
all the, you know.”
I do not credit Boodt’s belated claim that Popovich used pro-
fanity during their January 11 argument, other than the one
phrase which Popovich admitted using. I have considered
Boodt’s demeanor and have concluded that if Popovich had
used profanity to the extent to which Boodt and Brown
claimed, Boodt would have reported it when he initially testi-
fied about the incident. I have concluded that the conversation
occurred as Popovich and Fenrick credibly described it as set
forth above. I also do not credit Brown’s claim that he was told
by Boodt and two employees that Fenrick participated in the
argument on January 11. In this regard, Boodt confirmed Fen-
rick and Popovich’s testimony that Fenrick was not involved in
the dispute.
Boodt testified that on January 11, after Fenrick and Popovich
left for Ft. Wayne, Boodt went to the MSC site to inspect the
work that had been done the night before. Boodt testified that
he arrived at the site at around 8 a.m., and he called Brown
about 10 minutes later. Boodt’s inspection of the site led him to
conclude that there was nothing accomplished the night before.
23 Fenrick and Popovich also testified that Fenrick did not argue with
Boodt.
CAMPBELL ELECTRIC CO. 835
Boodt testified that he called Brown and told him, “[A] little bit
of what had happened that morning that with Mr. Popovich and
I said, you know, man, there’s nothing that has been accom-
plished over here” and I said, you know, I asked him, I said, you
know, “What do you want me to do?” He testified that Brown
replied that he would “take care of this problem.”24
Brown testified that Fenrick was discharged in part for an in-
ability to work with other employees, including his supervisor.
He testified that Fenrick initiated a conversation with Brown
around 2 weeks before Fenrick’s discharge in which Fenrick
told him that he did not want to work with several named em-
ployees and that he did not want to work with Boodt. Fenrick
requested that Boodt not be sent out to Fenrick’s jobs. Brown
initially testified that he did not discipline Fenrick for this con-
versation. However, Brown subsequently testified that he con-
sidered his conversation with Fenrick to be a form of discipline
because Brown told him how the job was going to be and that if
Fenrick found it unacceptable he should find another job.
Fenrick testified that he had a meeting with Brown around
November 1999. Fenrick testified that he asked Brown if it
was necessary for Boodt to come out to the sites because Boodt
would often not give the employees information necessary to
perform their work. Fenrick testified that he did not think this
was a good way to run the operation, but that he did not have
any personal feelings against Boodt. Fenrick testified that no
one was upset during his conversation with Brown, but Brown
explained that he could not honor Fenrick’s request. I have
found Fenrick to be a more reliable witness than Brown and
have credited Fenrick’s description of the timing and content of
this conversation.
Brown also testified that Boodt had told him that Boodt had
suspected Fenrick of leaving early from jobs and that Boodt
was watching Fenrick as a result. Brown testified that the
truckdriver would show up to a job to deliver material or Boodt
showed up at a job at 2 p.m. and Fenrick was supposed to work
until 3:30 p.m. but was not there. Brown testified that the
truckdriver reported similar incidents with Popovich. Brown
testified that he also saw Fenrick on a bypass at 2 p.m. in No-
vember when Fenrick should have been at work. Boodt testi-
fied that there were two occasions when he showed up on the
jobsite and Fenrick and Popovich were not there. However,
Brown and Boodt testified that they never spoke to Fenrick or
Popovich about their leaving early, and there was no claim that
the employees were disciplined for it. Respondent also drew
testimony from Foster and Spodnick as to allegations that Fen-
rick and Popovich had a habit of leaving jobsites early.

24 Boodt testified that he first found out that there were problems
with the lift on January 10, when he spoke with Foster a second time on
January 11. At that time, Boodt asked Foster why no unistrut was put
up, and he was told that the lift would not work. Boodt testified that he
asked Foster what they had accomplished, and Foster said that they had
not done anything, that they sat in the breakroom 2 hours on January 10
waiting for the lift to charge. Boodt testified that Foster told him that
he left and that they all packed up their tools and went home. Boodt
testified that he did not know if this conversation with Foster took place
before the employee’s discharge and there was no claim by Boodt that
this information was conveyed to Brown or Gray prior to Fenrick and
Popovich’s discharge.
I do not credit the testimony of Respondent’s witnesses that
either Fenrick or Popovich were leaving their jobs early. I find
Brown and Boodt’s claims not to be credible in the face of their
testimony that they never confronted the employees over the
incidents. I also note that there was no claim by Brown or
Boodt that prior to January 11 that either Foster or Spodnick had
told them that Fenrick or Popovich were leaving work early. I
did not find either Foster or Spodnick, who were in Respon-
dent’s employ at the time of their testimony, to be credible wit-
nesses. I also do not credit a claim by Brown that he had to
caution Fenrick and Popovich on several occasions con-cerning
their attendance at the ABC apprenticeship program. I note that
both employees maintained a B or better average, and that Re-
spondent gave them merit increases around the time they com-
pleted the program. In short, I credit Fenrick and Popovich’s
testimony that they received no discipline while working for
Respondent until the time of their discharge, and that they did
not engage in conduct that warranted disciplinary action.
C. The February Terminations of Petruska, Zache,
and Kellogg
Petruska was hired in January 1998 and was an apprentice,
who occasionally served as a lead man, at the time of his Febru-
ary 7 termination date. Petruska credibly testified as follows:
Petruska received the phone number from Popovich and called
Mummey on January 10. They discussed and then Mummey
sent him literature detailing the Union’s wages and benefits. On
January 11, Petruska told Kellogg and Zache about his conver-
sation with Mummey. On January 20, Petruska called Mummey
and set up a meeting at a truck stop for January 22. Petruska
attended the meeting along with Popovich, Fenrick, Kellogg,
Zache, and Mummey.25 Mummey brought the same literature
he had sent Petruska, and he answered questions about the Un-
ion. Petruska signed an authorization card at the January 22
meeting. He also signed to take the Union’s apprenticeship
placement exam to determine what year apprentice he would be
if he left Campbell to work for a union contractor. Petruska
credibly testified that, as of his February 7 discharge, he had not
made a firm decision to leave Respondent’s employ in that he
was waiting for the results on the apprenticeship exam, which he
did not receive prior to his discharge.26
Petruska’s credited testimony reveals that on January 25,
Brown called Petruska into the office. Gray was also there.
Brown stated that he had a problem with the Union but legally
he could not do anything about it. Brown also said that if
Petruska told anybody that Brown had said this, Brown would
deny it. Brown told Petruska that if he saw any union represen-
tatives on the job, to ask to see their permission to be on the
jobsite, or ask them to leave. Brown also stated that he was
going to have the same conversation with employee Mark
Spodnick.
I have concluded that Brown’s instruction to Petruska to ask
union representatives to leave the jobsites violated Section
25 Mummey also testified that Petruska, Kellogg, and Zache attended
the meeting.
26 Petruska eventually rated as a third-year apprentice on the exam.
He was rated as only a second-year apprentice while working for Re-
spondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
8(a)(1) of the Act. Brown did not specifically deny making this
remark to Petruska, which the complaint alleges took place on
about January 26.27 Brown conceded, during his testimony, that
the jobsites were not Respondent’s property to control, as he
testified that he could not prevent the Union from holding cook-
outs on the sites as the owners did not want to confront the Un-
ion. I conclude that Brown’s directive to Petruska is conduct
that would tend to restrain and coerce employees in the exercise
of their Section 7 rights. In this regard, I have concluded for
reasons set forth below that the Union’s efforts of apprising
employees of the benefits of union membership constituted pro-
tected Union activity, and that Respondent has failed to establish
that it had a sufficient property interest to exclude the Union
from the jobsites. See Food For Less, 318 NLRB 646 (1995),
affd. in relevant part 95 F.3d 733 (8th Cir. 1996).
On the morning of January 26, Boodt came out to the TCI
jobsite where Petruska was working. Petruska credibly testified
that Boodt wanted to know who Petruska told how much he was
earning, and how everyone had found out how much money
Petruska made. Petruska testified that Boodt said, “I know who
you are talking to.” Boodt also told Petruska that “if I were you,
I would look for a different job.” Boodt also told Petruska that
he should not have received his last raise. Petruska stated in his
pre-hearing affidavit that “[t]he following . . . morning, Boodt
came out the TCI job and said to me alone that the conversation
we had yesterday was out of line. I was just upset about what I
had heard.” Boodt went on to say, “[Y]ou’re doing a great job.
Keep it up.”28 I have concluded, as alleged in the complaint,
that Boodt violated Section 8(a)(1) of the Act by interrogating
Petruska about discussing his earnings with coworkers on Janu-
ary 26. It has long been held that the maintenance of a rule pro-
hibiting employees from discussing wage rates among them-
selves violates Section 8(a)(1) of the Act. See Jeanette Corp.,
217 NLRB 653, 656 (1975), enfd. 532 F.2d 916 (3d Cir. 1976),
and K Mart Corp., 297 NLRB 80 fn. 2 (1989). It is clear that
interrogating an employee about such conduct would have the
effect of coercing and restraining him from engaging in this
protected activity.29 I also do not find that Boodt’s subsequent
apology to Petruska was sufficient to remedy his unlawful con-
duct. In order to escape liability, a respondent’s disavowal of
unlawful conduct must be timely, unambiguous, specific in na-

27 Spodnick denied that he was given any instructions about union
officials coming on the jobsites. However, considering his demeanor, I
did not find Spodnick’s testimony to be credible as he also testified that
he would call Boodt to tell him if a union official came to the jobsites.
28 Boodt denied saying anything to Petruska about his discussing his
wage rates with other employees. Based on considerations of de-
meanor, and his overall testimony, I did not find Boodt to be a very
credible witness and I have credited Petruska as set forth above.
29 I have concluded that the substance of this January 26 conversa-
tion was fully litigated, and that, although not alleged in the complaint,
Boodt also violated Sec. 8(a)(1) of the Act by informing Petruska dur-
ing the conversation that he should start looking for a different job, and
impliedly threatened Petruska by telling him that he should not have
received his last raise. See Marshall Durban Poultry Co., 310 NLRB
68 fn. 1 (1993), enfd. in relevant part 39 F.3d 1312 (5th Cir. 1994), and
Monroe Auto Equipment Co., 230 NLRB 742, 751 (1977), where viola-
tions were found for matters not specifically alleged in the complaint
but that were fully litigated.
ture to the coercive conduct, and free from other proscribed
illegal conduct. There also must be adequate publication and
assurances given to employees that respondent will not violate
the Act. See Passavant Memorial Area Hospital, 237 NLRB
138, 138–139 (1978). Accord: Sam’s Club, 322 NLRB 8, 9
(1996), enfd. 141 F.3d 653 (6th Cir. 1998). Boodt’s apology
was not unambiguous as he informed Petruska that he was upset
by what he had heard. Moreover, I have concluded that Re-
spondent has committed other unfair labor practices including
unlawfully discharging Petruska.
1. The January 26 meeting
Petruska and Zache testified, at the hearing, that they at-
tended a meeting at Respondent’s shop on January 26.30 Brown
conducted the meeting, which was attended by all of the em-
ployees, Gray and Boodt. They testified that Brown used a
chart and stated that he had worked it out mathematically that
Respondent’s employees made less per hour but more money
than a union journeyman because Respondent would work
them more hours. Petruska testified that Brown also said that
he was sick of hearing about Mike and Mike, referring to Pop-
ovich and Fenrick, that if he lost any more employees to the
Union due to them, he would sue them for slander.31 Petruska
testified that Brown also said that “Campbell Electric is head-
ing one way and if you are heading the other, we will shake
hands as men and go our separate ways.”
The following exchange occurred as Zache was questioned
about the meeting by counsel for the Acting General Counsel:

Q. Okay. And what else was said?
A. Well, that was about all.
Q. Did Mr. Brown make any more comments about the
Union or the IBEW Local 153?
A. He said that if none of us were comfortable or if we
didn’t like where we were that we could leave now. If you
didn’t want to be an employee here and go with us that
you could leave.

Counsel for the Acting General Counsel stated at the hearing
that this remark by Brown was not being alleged as conduct
violative of the Act, but that it constituted evidence of animus.
Zache testified, on cross-examination, that Brown said, “[I]f
you want to leave, okay, no hard feelings, you’ll always have a
home at Campbell Electric and we’ll shake hands and part as
gentleman.”
Kellogg testified that he could only recall one meeting where
Brown expressed opposition to the Union and that was on
January 26 when Brown compared Respondent’s wages with
the Union’s wages and benefits. He testified that the firing of
Popovich and Fenrick was discussed and that “Brown stated
that they had chosen to go in one direction and the Company
was going in another and if anybody felt to follow Mike and
30 Zache only gave an estimate for the date of the meeting in his pre-
hearing affidavit. However, I have found Petruska’s memory for detail
to be good, and I have concluded that the meeting did take place on
January 26 as he testified.
31 I found Petruska to be a credible witness. However, this remark
was not alleged in the complaint as violative of the Act, and I have
concluded that its lawfulness was not fully litigated.
CAMPBELL ELECTRIC CO. 837
Mike, we would leave the Company with nothing more than a
handshake.” The following exchange occurred while Kellogg
was questioned about the meeting by counsel for the Acting
General Counsel:

Q. Okay. And was anything else said?
A. Not that I can remember.
Q. Do you know if anything else was said about the
Union or the IBEW Local 153?
A. There was a statement that the shop would never
become a Union shop.
Q. Okay. Was there anything else said?
A. No.

Kellogg subsequently reaffirmed his testimony that this meet-
ing took place on January 26 rather than February 16, and
counsel for the Acting General Counsel stated that the above-
quoted remark was not being alleged a violation of the Act, but
rather constituted evidence of animus.32
Brown testified that he held a meeting with employees after
Fenrick and Popovich were discharged, but he could not recall
the date.33 Brown used the information that the union officials
had given him to present a wage and benefit comparison be-
tween that paid by Respondent and that being presented by the
Union. Brown testified that he held the meeting because of
rumors that he had heard that Fenrick and Popovich were
spreading that the Union had stolen Respondent’s employees,
and that Respondent was going out of business. Brown testified
that, after presenting the employees with the comparative wage
and salary information, “I said, you guys, can make your own
decision. If you want to stay, stay. If you want to leave, leave.”
Brown assured the employees that Respondent was not going
out of business. Brown testified that he stated that Fenrick and
Popovich had been fired for falsifying their timecard and that he
told the employees that he was not going to talk about it any-
more, but that everyone else was free to talk about it. Brown
offered the employees copies of his notes showing the figures
that he presented but no one accepted his offer. He explained
that they had all already seen the information in that the Union
had tried to recruit them and was “on every jobsite.” Brown
testified that he told employees if union representatives came on
a site to try not to let them interfere with their work, that the
employees were paid to do a job.34

32 Kellogg’s prehearing affidavit dated June 6, 2000, reflected that
the meeting Brown held took place on February 16. However, Kellogg
testified that the affidavit was incorrect and that the meeting was held
on January 26. Kellogg testified, on cross-examination, that Brown
said during the meeting that Fenrick and Popovich had been stealing
time from the Company in that they had gone to work for 2 or 3 hours
and charged Respondent for an 8-hour day.
33 Gray testified that there was one meeting that Brown held using
his notes where the Union was discussed. Gray did not testify any
further as to the substance of the meeting, and Boodt did not testify
about it.
34 While Boodt did not testify specifically about this meeting, he tes-
tified that Brown would hold meetings from time to time where he
would tell employees that it was alright for union representatives to
show up on Respondent’s jobsites, but that the employees should only
talk to them during their breaks. However, when asked if Brown stated
this more than once, Boodt testified, “You know, I don’t know because
Despite Kellogg’s repeated testimony at the hearing that the
only management meeting he attended concerning the Union
occurred on January 26, counsel for the Acting General Coun-
sel contends in his brief that the meeting took place on Febru-
ary 16, as set forth in Kellogg’s prehearing affidavit. Based on
that affidavit, which was entered into evidence over the counsel
for the Acting General Counsel’s objection, and certain testi-
mony by Kellogg at the hearing, counsel for the Acting General
Counsel maintains in his brief that Brown made remarks at a
meeting on February 16, that are violative of Section 8(a)(1) of
the Act, as alleged in paragraph 5(a)(ii) of the complaint.
I have concluded that there was only one staff meeting that
Brown held concerning the Union and that it took place on
January 26 as Petruska testified. I do not credit Kellogg’s testi-
mony at the hearing that Brown stated at the January 26 meeting
that the shop would never become a union shop. I did not find
Kellogg to be a very credible witness. First, Kellogg’s testi-
mony vacillated as to the date of the staff meeting between his
testimony at the hearing and that recorded in his prehearing
affidavit with no explanation for the change by Kellogg. More-
over, Kellogg’s testimony that Brown stated that Respondent
would never become a union shop was not corroborated by ei-
ther Petruska or Zache. Kellogg also did not testify at the hear-
ing and I do not find that Brown stated at the meeting that any
more discussion of Fenrick and Popovich and the employees
would be gone, although there was such a statement in Kel-
logg’s prehearing affidavit. Kellogg also stated in the affidavit,
that Brown stated if we wanted to go union we can leave. How-
ever, he did not testify to this statement at the hearing, and I
have concluded that the Acting General Counsel has failed to
establish that these statements were made at the staff meeting.
Accordingly, complaint paragraph 5(a)(ii)(A), (B), and (C) are
dismissed.
I have concluded that Petruska, considering his demeanor and
the specificity of his recollection, was a credible witness. I have
credited his testimony that Brown stated, during the January 26
meeting, after reviewing Respondent and the Union’s wages and
benefits, that “Campbell Electric is heading one way and if you
are heading the other, we will shake hands as men and go our
separate ways.”35 In this regard, Brown testified that after pre-
senting the employees with the comparative wage and salary
information, “I said, you guys, can make your own decision. If
you want to stay, stay. If you want to leave, leave.” Brown
testified that he made a similar statement to both Fenrick and
Popovich at the time of their discharge as to that alleged by
Petruska that he made at the staff meeting. I have concluded
that Fenrick and Popovich’s discharge was for the union activity

we don’t talk about the Union that much. It’s kind of one of those
things like, I don't even talk to the men about it that much because it
has nothing do with me, you know. My position is to put the men to
work and make sure they are doing a good job, so I don’t even talk to
the guys about the Union.”
35 I do not find that Brown’s statement at the meeting was in refer-
ence to Popovich and Fenrick's alleged stealing time as Respondent’s
counsel attempted to establish through his cross-examination of Kel-
logg. Kellogg’s testimony on this point at the hearing differed from
that contained in his prehearing affidavit and I have concluded that
Kellogg was confused when he gave his response at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
and that the reasons advanced by Respondent for the discharge
were pretextual. Accordingly, I have determined that Brown
was giving Respondent’s employees an ultimatum that they
either work under the existing terms and conditions of employ-
ment, or they leave. I have concluded that, coming on the heels
of Fenrick and Popovich’s discharge, Brown’s statement to
employees that “Campbell Electric is heading one way and if
you are heading the other, we will shake hands as men and go
our separate ways,” was in reference to employees’ union activi-
ties and would tend to restrain and coerce employees in the ex-
ercise of their rights guaranteed by Section 7 of the Act, and was
therefore violative of Section 8(a)(1) of the Act.36
I do not credit Brown’s testimony that he told employees at
the January meeting that they were free to talk about Fenrick
and Popovich. I also do not believe that he told employees that
they should try not to let union representatives interfere with
their work when they came on to the jobsites. Rather, I have
concluded that Brown concocted this testimony in order to
refute certain allegations in the outstanding complaint. In this
regard, Brown’s testimony was not corroborated by any other
witness, and I did not find Brown’s version of events to be
credible. I also found Boodt’s claims that he and Brown told
employees that they could talk to union representatives during
breaktime to be unreliable. Boodt at first testified that he heard
Brown make these remarks at more than one meeting. How-
ever, when pressed on the number of times he heard Brown
make these remarks, Boodt back tracked as if he had said some-
thing wrong, contending in effect that all discussions about the
Union were taboo.
2. The February 7 discharge of Petruska
Petruska credibly testified to the following: On February 2,
Respondent’s employee Chris Runyan stated that he had heard
that Petruska was talking to the Union. Petruska responded that
he had not made a decision as to whether he would pursue work
with the Union. Petruska told two other employees in the af-
ternoon on February 2 at the TCI jobsite that he was going to
take the Union’s apprentice placement exam that evening.
Petruska took the test as scheduled.
On February 7, Petruska reported to the shop and Boodt told
him to stay in the warehouse. At around 7:30 a.m., Gray came
into the warehouse and stated, “I heard you been thinking about
going Union.” Petruska responded that “I am not going to lie to
you. I have been thinking about it.” Gray asked what Petruska
planned on doing, and Petruska said that he was not sure that he
would probably give two weeks notice in a couple of weeks.
Gray stated that “[I]t is not a Union or non-Union thing, but if
you are planning on leaving anyway, we don’t see investing

36 Petruska’s testimony as to Brown’s remarks at the January 26
meeting was not specifically alleged as unlawful in the complaint and
counsel for the Acting General Counsel made statements at the hearing
that Brown’s statements at the meeting were not being alleged as viola-
tive of the Act. Nevertheless, the parties drew testimony from their
witnesses as to the events at the January meeting, and they cross-
examined opposing witnesses about the meeting. Respondent also
briefed the issue as to the import of similar remarks alleged by Kellogg
to be made by Brown at the January 26 meeting. Accordingly, I have
concluded that the import of these remarks was fully litigated.
any more money into you.” Petruska asked Gray if it was his
last day, and Gray responded, “Yeah, let’s make it your last
day.” Petruska asked if he could go back inside to say goodbye
to Boodt and Gray said, “Yeah, but you might want to hurry up
because Steve is a little more hurt about this than I am.”
Petruska testified that he had not been placed by the Union at
the time of his February 7 meeting with Gray. However, he
found out that he was going to work for Thompson Electric the
following day. Petruska testified that prior to his discharge that
he did not have any conversations with Mummey as to how
soon he could be placed.
Gray testified as follows: Gray had heard from other em-
ployees that Petruska was considering leaving Respondent.
Gray called Petruska into the warehouse to “ask him if he
was—if it was true what I heard, was he unhappy, was there
anything, you know—if I had done anything wrong, what is
going on?” Petruska stated that he had spent the day visiting
the “Hands-On Training” facility, that he had already secured a
position with another electrical contractor, and that it was in his
best interest to leave Respondent. Gray testified that Petruska
shook Gray’s hand and offered his 2-week notice if it was re-
quired. Gray told Petruska that it was not, and then Petruska
left. Gray assumed that Petruska’s new employer was a union
contractor because of Petruska’s mention of the Union’s
“Hands-On Training” facility. Gray testified that Petruska did
not ask to stay the extra 2 weeks.
In addition to considerations of demeanor, I did not find
Gray’s testimony as to his meeting with Petruska to be very
convincing. I have credited Petruska’s testimony that a few
days before his meeting with Gray, he had discussed with other
employees that he was going to take the Union’s apprenticeship
placement exam. Yet, Gray contended that, although he initi-
ated the meeting with Petruska to ask if he was leaving, that he
only first learned that Petruska was considering working for a
union contractor by comments that Petruska made at their meet-
ing. I find Gray’s testimony as unworthy of belief and have
credited Petruska in full. I have concluded that Gray’s remark
to Petruska at the meeting that “I heard you been thinking about
going Union” constituted an unlawful interrogation and created
the impression of surveillance of union activities in violation of
Section 8(a)(1) of the Act, as alleged in complaint paragraphs
5(b)(i) and (ii).
3. The February 21 termination of Kellogg
Kellogg was hired in May 1998. He worked as an apprentice
during the course of his employment, and on occasion served as
a leadman. Mummey gave Kellogg union literature in August
1999 at one of Respondent’s jobsites. Kellogg phoned Mum-
mey in early January resulting in a meeting at the union hall on
January 15, attended by Kellogg and Mummey. They dis-
cussed the Union’s wages, benefits, and its apprenticeship pro-
gram. Mummey told Kellogg that there was employment
available for him at a union contractor when Kellogg wanted it.
Kellogg signed a union authorization card at the meeting. Kel-
logg testified that Mummey told him to give Respondent 2 to 3
weeks notice. He also testified that he started working for a
union contractor the next morning after he left Respondent’s
employ. Kellogg told Petruska about his meeting with Mum-
CAMPBELL ELECTRIC CO. 839
mey on January 17 at around 6:30 a.m. in Respondent’s parking
lot. Kellogg testified that he had no further contact with
Mummey after January 15.37
Kellogg testified that on February 21, in the afternoon, he
went into Respondent’s shop and Gray and Boodt were present.
Kellogg stated that he was giving his 2-week notice. Boodt
stated, “You’re really going to go to the Union?” Kellogg said,
“Yes.” Gray said that they already knew that this was going to
be Kellogg’s last day. Gray then corrected himself and said that
they knew that it was going to be Kellogg’s last 2 weeks. Gray
said that Taff had called earlier in the day and told him that Kel-
logg was going to give 2 weeks notice. Gray then met with
Boodt privately. Gray came out into the shop and stated that it
was going to be Kellogg’s last day. Gray stated that they had
had bad luck with tools and materials missing, and people not
working up to their normal standards. Kellogg testified that he
did not intend to leave Respondent’s employ on February 21.
Gray testified that, on his last day of employment, Kellogg
came into the office and stated that he was quitting. Boodt was
there. When Gray asked why, Kellogg stated that he had been
to the “Hands on Training” facility, that he was considering
relocating, and that he felt that it would be best to work for a
union contractor because they could assist him in relocating.
Kellogg offered Gray 2 weeks notice. Gray told him that it was
not required and Kellogg left. Gray testified that he did not tell
Kellogg that he could not stay for the 2 weeks only that it was
not required. When asked if Kellogg wanted to stay for the 2
weeks could he have stayed, Gray responded that “[h]e proba-
bly could have.” Boodt testified that prior to the end of Kel-
logg’s employment, Boodt was not aware that he had been
having conversations with union representatives. Boodt denied
that he said anything about the Union to Kellogg.
As set forth above, I did not find Kellogg to be a particularly
reliable witness. While I have concluded that the testimony of
Gray and Boodt was also suspect, the Acting General Counsel
maintains the burden of proof as to each allegation in the com-
plaint. Accordingly, complaint paragraph 5(c)(ii), which coun-
sel for the Acting General Counsel contends is based on Kel-
logg’s testimony as to the remark on the part of Boodt at the
February 21 meeting is dismissed.
4. The February 24 termination of Zache
Zache was hired in May 1998 and he was an apprentice at
the time of his termination.38 Zache signed a union authoriza-

37 Kellogg did not have a very good recollection as to dates, and I
have credited the testimony of Petruska and Mummey that Kellogg also
attended the January 22 meeting at J.D.’s truckstop. I have considered
that Zache also did not list Kellogg as having attended this meeting
when Zache testified.
38 I have credited Zache’s testimony as set forth below. I have con-
sidered Zache’s demeanor and note that he testified in a specific fash-
ion as to events that related in particular to his own employment rela-
tionship with Respondent. I have considered an inconsistency that
Respondent points out between one aspect of Zache’s testimony at the
hearing and that contained in his affidavit pertaining to an alleged re-
mark by Brown as to whether Zache could seek advice from Brown’s
father about the Union. However, I have concluded that this is a pe-
ripheral matter that did not detract from Zache’s otherwise credible and
straightforward testimony as to the events leading to his discharge.
tion card during the January 22 truck stop meeting with Mum-
mey where union pay, benefits, and job opportunities were
discussed. Zache also testified that Mummey had previously
told him about job opportunities through the Union.
Around a week or two after the January 22 meeting, Zache
told Job Foreman Wayne Wootten, in the presence of employee
Gabe Atkinson, that Zache had met Mummey and that Zache
liked the union wages and benefits. Wootten stated that he was
not interested. Zache met with Mummey in early February and
further reviewed Zache’s employment options with the Union.
One day at work, Atkinson saw Zache wearing a union shirt.
Atkinson told Wootten and they stated that they were going to
call Boodt about it.
On February 23, Boodt told Zache that he knew who Zache
had been talking to and that Brown wanted to see Zache in the
shop.39 Zache reported to Brown and Brown told him that he
knew that Zache had been talking to the Union.40 Brown stated
that he wanted to know what it would take for Zache to stay
with Respondent.41 Zache stated that he liked the relocation
options with the Union that if he moved to another State, he
would still be offered good pay and benefits. Brown showed
Zache a book of ABC Contractors and said he would personally
call and make sure that Zache got good pay if he ever traveled.
Brown told Zache that he could take the rest of the day off to
think about his decision as to whether he wanted to stay with
Respondent and to let Brown know the next morning what
Zache decided.
On February 24, when Zache reported to work, he told
Brown that he still wanted to go with the Union. Zache told
Brown that he would agree not to leave until Brown had a re-
placement for him. Zache testified that Brown became upset
and told Zache, “[T]o get the fuck out because we made him
sick.” After leaving Brown’s office, Zache told Wootten that
“he said I was done and no longer with them.” Zache testified
that he was discharged on February 24 and that he had intended
to work beyond February 24 in that he still wanted to feel more
comfortable about the decision to leave.
39 I credit Zache’s testimony that Boodt made this remark to him
over Boodt’s denial. In this regard, Boodt testified that he did not have
any conversations with Zache about the Union, and then he went on to
state, “I don’t know if I have ever really had any communication with
any of the men about the Union.” Boodt’s testimony as to his conver-
sations with employees about the Union vacillated during the hearing
and was not worthy of belief. However, counsel for the Acting General
Counsel stated at the hearing that this remark was not alleged as a vio-
lation of the Act and since it is similar to other violations that I have
found, it will be remedied in the recommended notice without the need
to find that it independently violated the Act.
40 I have concluded that by making this statement, Brown interro-
gated Zache and created the impression of surveillance of his union
activities in violation of Sec. 8(a)(1) of the Act as alleged in par.
5(a)(iii)(A) and (C) of the complaint.
41 Counsel for the Acting General Counsel contends that, by making
this remark, Brown promised Zache unspecified benefits to abandon his
union activities in violation of Sec. 8(a)(1) of the Act. I do not find this
to be the case. Rather, Brown asked Zache what it would take for him
to remain in Respondent’s employ as opposed to leaving to work for a
union contractor. Accordingly, par. 5(a)(iii)(C) of the complaint is
dismissed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840
Brown testified that he called Zache in the office to promote
him to leadman. Zache stated that he was thinking of leaving
Respondent because he was impressed with the Union’s
“Hands-On Training” facility. Zache also told Brown that he
was thinking about moving, and that he could be placed any-
where if he was a member of the Union. Brown told Zache that
the ABC apprentice program had similar transferability options.
The conversation ended with Zache going to go home, think it
over, and report to Brown the next day. Brown testified that
Zache came in the next day and told him that he quit and that
“[h]e was done.” Brown testified that after Zache quit, he asked
Brown if Brown wanted him to stay for another 2 weeks, to
which Brown replied that this was not necessary. Brown testi-
fied that he became upset because he was losing a valuable em-
ployee who he had invested a lot of time and money in and that
he told Zache to “get the fuck out of my office.” Yet, Brown
claimed that he assumed Zache would return to work. I have
credited Zache over Brown to the extent that there were vari-
ances in their testimony as to the two meetings. I did not find
Brown to be a particularly reliable witness and I find it likely in
view of Zache’s credited testimony that either Wootten or At-
kinson, or both, reported to Respondent’s officials that Zache
had shown an interest in the Union.
Respondent also called Wootten, who remained in its em-
ploy, to testify. Wootten admitted that Zache told him that he
had had conversations with union representatives, but he denied
reporting this to management. I did not find Wootten’s denial
to be persuasive. In this regard, Wootten testified that he re-
fused to shake Zache’s hand when he found out that he was
leaving since Wootten was training him and he “thought he did
me wrong by leaving.” Wootten assumed that Zache was going
to work with the Union because of Zache’s conversations with
Mummey. I have concluded that Wootten was in agreement
with Respondent’s antiunion stand and that he was loyal to
management and therefore was likely to report Zache’s interest
in the Union. I have also credited Zache’s testimony that
Brown told him that he knew Zache had been talking to the
Union at the outset of their February 23 meeting.
D. Analysis and Conclusions as to the Terminations of Fenrick,
Popovich, Petruska, Kellogg, and Zache
1. Applicable legal principles
I disagree with Respondent’s contention that the employees
named in the complaint were not engaged in activity protected
by the Act because they were being recruited by the Union to
work for union contractors. Section 8(f) of the Act allows a
construction industry employer to enter a collective-bargaining
agreement with a labor organization although the majority
status of that labor organization has not been established. See
John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988),
cert. denied 488 U.S. 889 (1988). In M. J. Mechanical Ser-
vices, 325 NLRB 1098, 1106–1107 (1998), the Board rejected
the respondent employer’s contention that it was entitled to
discriminate against union applicants because their activities
would be in accord with a stated union objective of depriving
the employer of employees. In that case, the union had per-
suaded one of employer’s employees to become its member and
then assigned that employee to work for a union contractor.
The Board approved the following rationale in rejecting the
respondent’s defense:

In trying to convince MJ employees to join Local 46,
the salts were exercising rights granted to them by Section
7 of the Act. There is no suggestion that they coerced, in-
terfered with, or restrained MJ employees in the exercise
of their rights. The salts merely told MJ employees about
the benefits of belonging to the Union and referred them to
the union hall. One apparently decided that joining was in
his best interests and the other reached the opposite con-
clusion.
Local 46’s objectives are no different from that of any
union. Its members are engaging in concerted activity to
protect their wage rates and benefits. Their objective is to
prevent contractors such as Respondent from threatening
these benefits by restricting the supply of labor it can ob-
tain at rates below that set forth in its collective-bargaining
agreements. As Chief Justice Stone noted, “[a] combina-
tion of employees necessarily restrains competition among
themselves in the sale of their services to the employer.”
Apex Hosiery Co. v. Leader, 310 U.S. 469, 502 (1941).
The National Labor Relations Act allows employees to
collectively attempt to restrict the labor supply in such a
manner. If the alleged discriminatees herein convince MJ
employees to join the Union and to withhold their labor
from MJ unless MJ pays union scale, they would be exer-
cising rights explicitly granted by the Act.
Moreover, Respondent is simply incorrect in arguing
that Local 46 was trying to drive it out of Rochester by
depriving it of labor. It is abundantly clear that if MJ en-
tered into an 8(f) agreement with the Union, it would have
been provided with an adequate supply of labor to com-
plete any project it undertook in the Rochester area. The
issue between MJ and the Union was not whether Respon-
dent worked in Rochester, it was whether Respondent
worked in Rochester with employees who made signifi-
cantly less in wages and benefits than union employees.

In the instant case, the credited evidence reveals that union
officials met with Brown and Gray in late December 1999, or
early January. During that meeting, they gave the company
officials materials detailing the Union’s wage and benefit rates
and asked them to review the materials with an eye toward Re-
spondent becoming a union contractor. Taff and Haase placed a
followup call to Gray in February telling Gray that some of Re-
spondent’s employees were interested in the Union’s apprentice-
ship program, and again requested that Respondent become a
union contractor. These entreaties were rejected by Respondent.
Rather, Brown held a meeting with employees on January 26,
where he compared Respondent’s and the Union’s wages and
benefits and gave the employees an ultimatum of working for
Respondent at status quo, or leaving to join the Union. I do not
find that the Union was attempting to drive Respondent out of
business here. Rather, it was attempting to restrict its supply of
labor until such time as it became a union contractor. Moreover,
the discriminatees were not acting only out of self-interest as
Respondent contends. Rather, Popovich informed Fenrick and
CAMPBELL ELECTRIC CO. 841
Petruska of his conversation with Mummey and Popovich and
Fenrick met with Mummey together on January 8 at which time
Mummey discussed the Union’s wages and benefits. Similarly,
Kellogg, Zache, Petruska, Popovich, and Fenrick met with
Mummey on January 22 again to discuss the benefits of union
membership and employment at union rates.
Respondent cites NLRB v. Leslie Metal Arts Co., 509 F.2d
811 (6th Cir. 1975); G & W Electric Specialty Co. v. NLRB, 360
F.2d 873, 877 (7th Cir. 1966); and Shelly & Anderson Furniture
Mfg. Co. v. NLRB, 497 F.2d 1200 (9th Cir. 1974), in support of
its contention that the employees at issue here were not engaged
in protected activity. Respondent asserts that in order for there
to be protected activity the conduct must involve the employees’
relationship with their employer and there must be a labor dis-
pute. It asserts that there was no labor dispute here in that the
employees just decided to end their relationship with Respon-
dent in favor of being employed by another company. It con-
tends that there was no effort by the employees to change terms
and conditions of their employment rather they were abandoning
that employment. In NLRB v. Leslie Metal Arts Co., supra., the
court upheld the Board in concluding that employees were in-
volved in protected activity when they engaged in a protest of
the conduct of another employee that involved plant safety. In
G & W Electric Specialty Co. v. NLRB, supra, the court reversed
the Board and found that an employee was not engaged in pro-
tected activity when he was discharged based on a dispute with a
credit union that was facilitated by but not operated by the re-
spondent employer. It was concluded there that the dispute did
not have any significant connection to the employee’s employ-
ment relationship with the company. In Shelly & Anderson
Furniture Mfg. Co. v. NLRB, supra, the court enforced the
Board’s determination that union represented employees were
engaged in protected conduct when they engaged in a 15-minute
protest during worktime to apply pressure to the employer to
negotiate a collective-bargaining agreement with their union
representative. The main issue there was whether the employees
were engaged in a partial or intermittent strike which would
have removed their conduct from the protection of the Act.
Section 7 of the Act, provides in pertinent part that, “Employ-
ees shall have the right to self-organization, to form, join, or
assist labor organizations.” Section 8(a)(3) of the Act provides
that it is an unfair labor practice for an employer “by discrimina-
tion in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage member-
ship in any labor organization.” All of the employees here had
been talking to the Union and had either signed authorization
cards or were contemplating signing authorizing cards to receive
the benefits of union representation at the time that Respondent
severed their employment relationship. Respondent’s discharg-
ing them for that reason strikes at the very heart of the Act’s
protection. Moreover, there was a labor dispute here as the Un-
ion was involved in a campaign against Respondent in an effort
to pressure Respondent into becoming a union contractor. The
work related grievance was Respondent’s refusal to offer union
wages and benefits, which Respondent could have remedied by
entering a union contract. Brown was keenly aware of this
when he held the meeting on January 26 telling the employees
that they had a choice between remaining Respondent’s em-
ployees under its existing wage and benefit package, or leaving
to work for union contractors. Gray was aware of it in February
when Taff told him that some of Respondent’s employees were
interested in the Union’s apprenticeship program, and that Re-
spondent could participate in the program if it became a union
contractor. Brown was reminded of this when Zache told him
that he was contemplating leaving because of the relocation
benefits union membership offered. Moreover, as set forth
above, the employees did not act on an individual basis in pur-
suit of union wages and benefits. Rather, they informed co-
workers of their contacts with the Union and acted in concert in
their meetings with Mummey. Accordingly, I have concluded
that all of the alleged discriminatees were engaged in union
activity protected by the Act at the time that their employment
relationship was severed by Respondent.
2. The January 11 discharge of Fenrick and Popovich
The General Counsel has the burden of establishing a prima
facie case sufficient to support an inference that union activity
was a motivating factor in an employer’s adverse personnel
action towards an employee. Once this is established, the bur-
den shifts to Respondent to establish that it would have taken
the same action even absent the employee’s participation in
protected conduct. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981). An inference of knowledge of
union activity, animus, and unlawful motivation may be drawn
from circumstantial as well as direct evidence. See Howard’s
Sheet Metal, Inc., 333 NLRB 361, 364 (2001). The following
principles were set forth in West Motor Freight of Pennsyl-
vania, 331 NLRB 831, 837 (2000):

The Company’s submission of pretextual reasons for More-
head’s discharge supports an inference that its real reason
was something different. The Board has held that “it is well
settled that knowledge of the employee’s protected activity
need not be established directly, but may rest on circumstan-
tial evidence from which a reasonable inference of knowl-
edge may be drawn.” Hospital San Pablo, Inc., 327 NLRB
[300] (1998). The Board elucidated some of the circumstan-
tial evidence in a later case. “We may infer knowledge
based on such circumstantial evidence as the timing of the
alleged discriminatory actions; Respondent’s general
knowledge of its employees’ union activities, and the pre-
textual reasons given for the adverse personnel actions.”
North Atlantic Medical Services, 329 NLRB [85, 85–86]
(1999). In a case where the employer discharged employees
9 days after the advent of the union movement, the Court of
Appeals for the Second Circuit deemed “the stunningly ob-
vious timing of the layoffs,” together with the other evi-
dence, to be sufficient to warrant an inference of discrimina-
tory motivation. NLRB v. Novelty Products Co., 424 F.2d
748, 750 (2d Cir. 1970).

Brown’s testimony revealed that there was a change in union
leadership around July 1999 and that the Union was holding
cookouts at Respondent’s jobsites in the summer of that year.
Brown testified that, in the fall of 1999, union officials were
coming to Respondent’s jobsites and attempting to steal Re-
spondent’s employees. Similarly, Boodt testified that he was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842
aware of the Union’s jobsite visits during the second half of
1999 and early 2000. When asked if he had heard rumors as to
the employees union activity, Boodt testified, “[Y]ou hear a lot
of rumors. I hear a lot of it from, you know, several of the
other men that so and so might have been or whatever.”42 Re-
spondent witness Spodnick testified that he saw union officials
at the jobsites all the time and that he would let Boodt know of
their presence.
The credited testimony reveals that in mid-August 1999,
Brown told Fenrick that if the shop decided to go Union they
would close the doors the next day and open up under another
name. In later November 1999, Boodt told Fenrick there is a
lot of union activity going on and that he did not think that it
was in the employees interest to switch over to the Union be-
cause they did not keep their promises. In late December 1999,
or early January, Brown received a call from Taff or Haase, and
they met around a week later. During the meeting Brown was
presented with information concerning the Union’s wage and
benefit package with the suggestion that Respondent become a
union contractor.
On Saturday, January 8, Fenrick and Popovich, two of Re-
spondent’s senior and most experienced electricians, met with
Union Official Mummey at which time Popovich signed a un-
ion card and committed to working for a union contractor. On
the next workday, Monday, January 10, Fenrick and Popovich
informed Foster, a short-term apprentice, while they were
working at Respondent’s MSC jobsite, of their meeting with
Mummey and of Popovich’s intent to seek employment with a
union contractor. While working at the MSC jobsite, the lift
necessary to complete the planned assignment was not opera-
tional resulting in Fenrick, the lead person on the job, sending
Foster home after 3 hours of work. Fenrick and Popovich’s
credited testimony reveals that they worked a full 8-hour shift
on January 10, and that after Foster left they cut unistrut. Fos-
ter was also told to only mark 3 hours on his timecard.
On January 11, Brown discharged Fenrick and Popovich for
allegedly submitting a false timecard for work performed on
January 10, for being insubordinate to Boodt in that they were
supposed to have engaged in a profanity laced argument with
Boodt on January 11, and for allegedly leaving the jobsites early.
I have concluded that claims advanced by Respondent as to Fen-
rick and Popovich’s alleged transgressions are pretextual. First,
Respondent concedes that the employees did not submit their
timecards for the work performed on January 10 until after they
were discharged. I have also credited the employees’ testimony
that they did work 8 hours on that date. Second, Brown testified
that Boodt and two employees had reported to him that both
Fenrick and Popovich had engaged in a profanity laced argument
with Boodt on January 11. However, the testimony of Boodt,
Fenrick, and Popovich reveals that Fenrick did not participate in
the argument which was just between Boodt and Popovich. The
credited testimony also reveals that there was also a minimum of
profanity used during the exchange and that Popovich relented to
Boodt’s demand that Popovich give him the keys to Popovich’s

42 I have concluded that Boodt’s subsequent denial that employee
names were mentioned along with these rumors to be unworthy of
belief.
personal vehicle. Moreover, Brown testified that he periodically
received complaints from customers that they had overheard
employees “cussing on the job.” Brown testified that this is
“typical of construction,” and that the only discipline the employ-
ees received was that they were talked to about it. Brown’s tes-
timony thus establishes that he treated Fenrick and Popovich in a
disparate fashion to other employees in terms of the use of pro-
fanity on the job. In this regard, Fenrick used none and Popovich
used a minimal amount but both were discharged. I further find
as incredible Respondent’s claims that they had a concern that
Fenrick and Popovich had over the last several months of their
employment been leaving the jobs early. In this regard, there was
an admission that the two employees were never spoken to about
this alleged problem.
In sum, Brown fired two senior and experienced employees,
who Respondent had just finished having trained as journeyman
at its expense. Brown did this in the face of a tight labor market
without informing the employees of the reasons for their dis-
charge or giving them a chance to explain their side of events.
Respondent’s actions and its haste to sever Fenrick and Pop-
ovich’s employment convinces me that Respondent was moti-
vated by reasons other than their alleged conduct which I have
found to be pretextual. The timing of the discharge, 2 days after
the employees met with the Union and Popovich signed a union
card, the animus Respondent has displayed, the disparate treat-
ment noted, the abrupt nature of Respondent’s actions, and the
sham reasons advanced for the discharge leads me to conclude
that Foster told Respondent’s officials of Popovich and Fen-
rick’s union activity and that they were discharged as a result in
violation of Section 8(a)(1) and (3) of the Act. This conclusion
is confirmed by Brown’s sole explanation to the Fenrick and
Popovich at the time of their discharge that they were going in
one direction and Respondent was going in another.
2. The February 7 discharge of Petruska
Petruska signed a union card on January 22 and he signed up
to take the Union’s apprenticeship placement test on that date
during a meeting with Mummey, Popovich, Fenrick, Zache, and
Kellogg. On January 25, Brown told Petruska, in Gray’s pres-
ence, that Brown had a problem with the Union but could not do
anything about it. He also told Petruska that if he saw any union
representatives on the jobsites that he should tell them to leave.
On January 26, Boodt came out to Petruska’s jobsite, questioned
him as to who he had been discussing his wage rate with, told
him that he knew who Petruska had been talking to, that
Petruska did not deserve his last pay increase, and that Petruska
should be looking for another job. On the afternoon of January
26, Brown held a meeting where he compared the benefits of the
Union and Respondent, stated that Respondent was heading one
way, and if you are heading another, that they would shake
hands and go their separate ways. On February 2, Petruska dis-
cussed his union activities with three of Respondent’s employ-
ees and told two employees that he was going to take the Un-
ion’s apprenticeship exam that evening.
On February 7, Boodt told Petruska to remain in the ware-
house, and thereafter Gray told him that he had heard that
Petruska was thinking of going Union. When Petruska re-
sponded that he was thinking about it, and that he would proba-
CAMPBELL ELECTRIC CO. 843
bly give 2 weeks notice in a couple of weeks, Gray told him
that if he was planning on leaving anyway, Respondent did not
want to invest any more money in him and that February 7 was
his last day.
Respondent contends that an employer has a right to termi-
nate an employee who is contemplating leaving to work for a
competitor when it has notice of the employee’s intent. How-
ever, the Board has held that whether an employer has unlaw-
fully terminated an employee or accelerated their resignation
must be analyzed under the standards of Wright Line, supra.
See FiveCAP, Inc., 331 NLRB 1165, 1185 (2000), and Vencor
Hospital-Los Angeles, 324 NLRB 234 (1997). The credited
evidence here shows that Gray initiated a meeting with
Petruska in which he interrogated him about his union activi-
ties, and as a result of Gray’s questioning was told that Petruska
may give his 2 weeks notice in a couple of weeks. While Re-
spondent had no policy requiring 2 weeks notice, Gray testified
concerning Kellogg that if he had asked to stay an extra 2
weeks that “[h]e probably could have.” I therefore have con-
cluded that Respondent also had no policy of rejecting employ-
ees 2-week notice before separation. The record shows that
Gray initiated the meeting, that he had knowledge of Petruska’s
union activities, that Respondent’s officials harbored animus
towards those activities, and that Gray prematurely severed
Petruska’s employment during a tight labor market with no
credible business justification for doing so. Accordingly, I
have concluded that Respondent discharged Petruska in viola-
tion of Section 8(a)(3) and (1) of the Act.
3. The February 21 termination of Kellogg
As set forth above, I did not find Kellogg to be the most reli-
able of witnesses. However, both he and Gray testified that on
February 24, he told Gray and Booth that he was quitting and
offered 2 weeks notice. Gray admits that Kellogg told him that
Kellogg thought that it would be in his best interest to work for
a union contractor. Kellogg testified that after he stated that he
wanted to give his 2-week notice, that Gray met privately with
Boodt and then told Kellogg that it was going to be his last day.
Gray testified that he just told Kellogg that a 2-week notice was
not required and then Kellogg left. However, Gray testified, as
set forth above, that if Kellogg wanted to stay 2 weeks he
probably could have. I have concluded that Kellogg offered
Respondent 2 additional weeks of work at a time of a tight
labor market, that Respondent knew of Kellogg’s union activ-
ity, had animus towards it, and that Respondent has failed to
establish a legitimate business justification for its refusal to
allow Kellogg to work the additional 2 weeks. Accordingly,
under the standards set forth in Wright Line, supra, Respondent
accelerated Kellogg’s resignation in violation of Section 8(a)(3)
and (1) of the Act.
4. The February 24 termination of Zache
Zache signed a union card on January 22, and told Foreman
Wootten and coworker Atkinson that he had been thinking
about joining the Union. On February 23, Boodt told Zache
that he knew who he had been talking to and instructed Zache
to see Brown in the shop. Brown told Zache that he knew that
he had been talking to the Union, and wanted to know what it
would take to get Zache to stay with Respondent. Zache stated
that he liked the relocation options with the Union, to which
Brown stated that the ABC contractors also had relocation op-
tions. Brown told Zache to let Brown know the next morning
what he had decided. Zache’s credited testimony reveals that
on February 24, Zache told Brown that he still wanted to go
Union. Zache told Brown that he would not leave until he had
a replacement. However, Brown told Zache “[T]to get the fuck
out because we made him sick.” Brown testified that Zache
told him that he quit, but Brown also admitted that he rejected
Zache’s offer to work an extra 2 weeks. Brown testified that he
told Zache to “[G]et the fuck out of my office.” Zache credibly
testified that he was discharged on February 24, in that he
wanted to continue working for Respondent because he was not
comfortable at that time with his decision to leave.
I have concluded that, under the standards set forth in Wright
Line, supra, that Brown unlawfully discharged Zache on Febru-
ary 24. The testimony establishes that Brown initiated a meet-
ing with Zache and then forced him to make a decision as to
whether he was going to remain working for Respondent or
leave to work for a union contractor at a time at which Zache
was not ready to make such a decision. The evidence shows
that Brown knew of Zache’s union activities, harbored animus
towards those activities, and Respondent has shown no business
justification for forcing Zache, an admittedly valuable em-
ployee, to leave its employ at the time of a tight labor market. I
have therefore concluded that Respondent discharged Zache in
violation of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Campbell Electric Co., Inc. is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Local Union 153, International Brotherhood of Electrical
Workers, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Instructing employees to ask union officials to leave Re-
spondent’s jobsites.
(b) Coercively interrogating employees about their discus-
sions of their wage rates with other employees.
(c) Informing employees that they should look for another
job because they discussed their wage rates with other employ-
ees.
(d) Informing employees that they should not have received
their last pay increase because they discussed their wage rates
with other employees.
(e) Creating the impression among employees that union ac-
tivity at Respondent was futile and may result in their discharge
by informing employees that the Company is heading one way
and if you are heading the other way the employees and Re-
spondent would part company.
(f) Coercively interrogating employees concerning their un-
ion activities.
(g) Creating the impression of surveillance of employees un-
ion activities.
4. Respondent violated Section 8(a)(3) and (1) of the Act by:
discharging Michael Fenrick and Michael Popovich on January
11, 2000; discharging Matthew Petruska on February 7, 2000;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844
accelerating the resignation of Robert Kellogg on February 21,
2000; and by discharging Brian Zache on February 24, 2000.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent having discriminatorily discharged employees
Michael Fenrick,43 and Brian Zache,44 it must offer them rein-
statement and make them 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).45
While I have concluded that Respondent unlawfully dis-
charged employee Michael Popovich, I am not recommending
that Respondent be required to offer Popovich reinstatement,
and I am recommending that Popovich’s backpay be limited to
a 2-week period following his January 11 discharge. In this
regard, Popovich credibly testified that he had determined that
he was going to quit his Respondent’s employ, and that he was
going to give 2 weeks notice on January 11, the date of his

43 Fenrick had not signed a union card at the time of his discharge.
The credited testimony reveals that although he had been meeting with
Union Official Mummey, Fenrick had not decided to leave Respon-
dent’s employ at the time of his January 11, 2000 discharge.
44 Zache signed a union card on January 22, 2000, but he remained
in Respondent’s employ for over a month until February 23, when
Brown told him that he knew Zache was talking to the Union, asked
him what it would take for him to stay, and gave him until the next day
to make up his mind whether to stay or leave. On the morning of Feb-
ruary 24, Zache told Brown that he still wanted to go Union. Brown
rejected Zache’s offer of 2 weeks notice, and told him in unceremoni-
ous fashion to get out of his office. I have concluded that Zache had no
definite plans to quit on February 23, until Brown required him to se-
lect between Respondent and the Union. I have concluded that
Brown’s conduct was unlawful. I have credited Zache’s testimony that
he wanted to work for Respondent beyond February 24, and he was
uncomfortable about leaving Respondent’s employ. I have also cred-
ited his testimony that he was not ready to give Brown 2 weeks notice
on February 24 and that he would not have done so, had Brown not
forced him to choose between Respondent and the Union on that date.
Accordingly, I have concluded that the Board’s usual reinstatement and
backpay remedies should be required for Zache.
45 The complaint was amended to request that the Board order Re-
spondent to “reimburse all discriminatees entitled to a monetary award
in this case for any extra federal, and/or state income taxes that would
or may result from the lump sum payment of the award.” The Acting
General Counsel’s proposed order would represent a change in Board
law. See Paliotta General Contractors, 333 NLRB No. 80 fn. 1 (2001)
(not reported in Board volumes), and Hendrickson Bros., Inc., 272
NLRB 438, 440 (1985), enfd. 762 F.2d 990 (2d Cir. 1985). The parties
have not briefed this issue to me, and since this a request for a change
in the current law, this question should be reserved for the Board.
Accordingly, I decline to grant counsel for the Acting General Coun-
sel’s request to include the additional relief requested. See Paliotta
General Contractors, supra.
discharge. The Board has held that in order to remedy a re-
spondent’s unfair labor practice, the Board must restore the
status that would have obtained if Respondent had committed
no unfair labor practice and that if an employee had determined
to quit even if there was no unfair labor practice then backpay
would toll at the date of the employee’s planned departure. See
Bardaville Electric Co., 315 NLRB 759, 760 (1994).
I am similarly only recommending limited backpay without
reinstatement for Matthew Petruska, who I have concluded that
Respondent unlawfully discharged on February 7, 2000. In this
regard, Petruska’s testimony revealed that he planned to leave
Respondent regardless of Respondent’s unfair labor practices.
Petruska’s credited testimony reveals that on February 2, 2000,
he told a coworker that he had not made a decision as to whether
he would be leaving Respondent and pursuing work with the
Union. On February 7, Gray confronted Petruska and stated that
he had heard that Petruska had been thinking about going Union.
Petruska stated that he was not sure, that he would probably give
2 weeks notice in a couple of weeks. At that point, Gray dis-
charged Petruska, stating that if he was planning on leaving
anyway, that Respondent did not see investing any more money
in him. Petruska credibly testified that he had not made the
decision to leave Respondent prior to his discharge. Petruska
testified that he took the union apprenticeship placement test on
February 2, that he was waiting for the results to make up his
mind as to whether to leave, and that he did not receive the re-
sults prior to his discharge. Petruska testified that poor perform-
ance on the test would have caused him to stay at Respondent.
However, when he received the results he placed as a third-year
apprentice, while he was only rated as a second-year apprentice
while working for Respondent. Thus, I have concluded that
Petruska had a plan in place prior to his discharge, that if he did
well on the Union’s apprentice exam, that he was going to quit.
Petruska did perform well on the exam, and I have concluded
from his testimony that his employment with Respondent would
have ended within 2 weeks of his receiving the results of the
exam, since his testimony revealed that he had intended to give
Respondent 2 weeks notice at the time that he decided to quit. I
have concluded that Petruska’s backpay should extend until 4
weeks from the date of his discharge since that was the estimate
that he gave Gray as to how long he expected to remain in Re-
spondent’s employ on February 7, unless Petruska can demon-
strate that he received the results of his apprenticeship test later
than expected. I note that Petruska testified that he actually
started working for a union contractor on February 8. However,
the fact that he was able to find immediate employment in a
tight labor market after he was discharged is not sufficient to cut
off his backpay. See, Bardaville Electric Co., supra at 760 fn. 6;
and Daniel Construction Co., 276 NLRB 1093 fn. 3 (1985).
Kellogg’s and Gray’s testimony reveals that Kellogg told
Gray that he was quitting on February 21, and that he offered
Gray 2 weeks notice, which Gray rejected. I have concluded
that Gray unlawfully accelerated Kellogg’s resignation by 2
weeks. I have also concluded that 2 weeks is the extent of
Gray’s backpay period and that he is not entitled to a reinstate-
ment order pertaining to Respondent. See Vencor Hospital-Los
Angeles, 324 NLRB 234, 254 (1997).
CAMPBELL ELECTRIC CO. 845
Respondent should make whole Michael Popovich, Matthew
Petruska, and Robert Kellogg for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
or the date it accelerated Kellogg’s resignation for the time
period specified above for each, less any net interim earnings,
as prescribed in F. W. Woolworth Co., supra, plus interest as
computed in New Horizons for the Retarded, supra.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended46
ORDER
The Respondent, Campbell Electric Co., Inc., Mishawaka,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing employees to ask union officials to leave Re-
spondent’s jobsites.
(b) Coercively interrogating employees about their discus-
sions of their wage rates with other employees.
(c) Informing employees that they should look for another
job because they discussed their wage rates with other employ-
ees.
(d) Informing employees that they should not have received
their last pay increase because they discussed their wage rates
with other employees.
(e) Creating the impression among employees that union ac-
tivity at Respondent was futile and may result in their discharge
by informing employees that the Company is heading one way
and if you are heading the other way the employees and Re-
spondent would part company.
(f) Coercively interrogating employees concerning their un-
ion activities.
(g) Creating the impression of surveillance of employees’
union activities.
(h) Discharging employees or accelerating employees’ resig-
nations because of their support for the Union.
(i) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Michael
Fenrick and Brian Zache full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.

46 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.
(b) Make Michael Fenrick, Michael Popovich, Brian Zache,
Robert Kellogg, and Matthew Petruska whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges and/or forced
or accelerated resignations of Michael Fenrick, Michael Pop-
ovich, Brian Zache, Robert Kellogg, and Matthew Petruska,
and within 3 days thereafter, notify the employees in writing
that this has been done and that their discharges and/or forced
or accelerated resignations will not be used against them in any
way.
(d) 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 necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Mishawaka, Indiana, copies of the attached notice
marked “Appendix.”47 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent 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 Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, Respon-
dent has gone out of business or closed the facility involved in
these proceedings, Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by Respondent at any time since
January 11, 2000.
(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
Respondent has taken to comply.

47 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.”