Clock Electric, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 2003

338 N.L.R.B. 806 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806
Clock Electric, Inc. and International Brotherhood of
Electrical Workers, Local 38, a/w International
Brotherhood of Electrical Workers

Congress of Independent Unions and International
Brotherhood of Electrical Workers, Local 38,
a/w International Brotherhood of Electrical
Workers. Cases 8–CA–31671 and 8–CB–9165
March 18, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On July 17, 2001, Administrative Law Judge Eric M.
Fine issued the attached decision. Respondent Clock
Electric filed exceptions and a supporting brief, and Re-
spondent Congress of Independent Unions (CIU) filed
cross-exceptions and a supporting brief. Charging Party
International Brotherhood of Electrical Workers, Local
38 (Local 38) filed separate responses to the exceptions
and cross-exceptions.
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, cross-exceptions, and briefs,
and has decided to affirm the judge’s rulings, findings,1

1 The Respondents have 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, some of the exceptions filed by Respondent Congress of
Independent Unions imply that the judge’s rulings, findings, and con-
clusions demonstrate bias and prejudice. On careful examination of the
judge’s decision and the entire record, we are satisfied that the CIU’s
contentions are without merit.
Respondent Clock Electric has filed exceptions, inter alia, to the
judge’s findings that certain statements by its owner, Chuck Clock,
violated Sec. 8(a)(1). Arguments in Clock Electric’s supporting brief
do not challenge the judge’s finding that violations based on matters
not specifically alleged in the complaint were fully litigated. In any
event, we agree with the judge’s finding that all unfair labor practice
issues were fully litigated.
In Chairman Battista’s view, the fact that these statements were fully
litigated does not itself resolve the procedural issues of fairness and due
process. Rather, Clock Electric should have been made aware, prior to
the adducing of evidence concerning the statements, that such evidence
was being presented in support of an allegation that the statements were
unlawful. In the instant case, the statements were not alleged as unlaw-
ful in the original complaint, and the complaint was never amended at
trial to allege the statements as unlawful.
Notwithstanding the above, Clock Electric does not contend that it
was deprived of due process or fairness. Accordingly, Chairman Bat-
tista affirms the violations.
and conclusions, as modified, and to adopt the recom-
mended Order2 as modified and set forth in full below.
We specifically affirm the judge’s conclusion that Re-
spondent Clock Electric violated Section 8(a)(3) and (1)
of the Act by granting wage increases to William Skiba
and Brian Lufkin. The judge did not expressly apply the
framework of the Board’s decision in Wright Line3 to
find this violation but, as discussed below, his findings
are consistent with such an analysis, which is required
here. We agree with the judge that the Respondent failed
to present a meritorious defense that it paid Skiba and
Lufkin more money simply to dissuade them from leav-
ing to work for another company.
In early November 1999, employees Skiba and Lufkin
signed authorization cards for Local 38. On November
3, Local 38 requested recognition from Clock Electric
based on a claimed authorization card majority. Clock
Electric refused the request and, on November 6, held a
companywide meeting to discuss opposition to Local 38.
At the conclusion of the meeting, Respondent’s owner,
Chuck Clock, directed employees to see Primary Project
Manager Dave Rohman if they wished to revoke their
authorization cards. Rohman provided Skiba and Lufkin
with forms that they used to revoke their cards.
At about this time, according to Lufkin’s credited tes-
timony, he asked Clock about Clock Electric’s viability
if Lufkin did not sign a Local 38 card. Clock replied that
he and Special Projects Manager Robert Dunfee had
plans for an independent union to come in so that Local
38 could not interfere with Clock Electric’s operations.
Local 38 persisted in its organizational attempts, mak-
ing repeated calls to persuade Clock to sign a collective-
bargaining agreement. At various times, Local 38 also
told Clock Electric employees, including Skiba, that if it
could not organize that Company’s work force, it could
find jobs for employees with other, union-signatory com-
panies. In early January 2000, Skiba and Lufkin signed
second authorization cards for Local 38. Soon thereafter,
Clock met with Skiba at a jobsite. Although Skiba had
never mentioned leaving Clock Electric, Clock asked
him whether he was planning to leave to work for a Lo-
2 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001). We shall also correct an error in the serial lettering of several
Order provisions. Finally, we have omitted the requirement related to
notice mailing in the event that the Respondent Union goes out of busi-
ness or closes the facility involved in this proceeding. See, e.g., L. D.
Kichler Co., 335 NLRB 1427 fn. 2 (2001).
We shall substitute new notices in accordance with our recent deci-
sion in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
3 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 399–403 (1983). See also
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
338 NLRB No. 110
CLOCK ELECTRIC, INC. 807
cal 38 contractor and what it would take to keep Skiba
working for him. Skiba replied that “money is always
nice.” Clock then asked Skiba what it would take to
keep Lufkin, who was Skiba’s assistant, working for
Clock Electric. Skiba advised Clock to give Lufkin a
raise.
Around the same time, Clock’s son-in-law, Dave An-
drews, acting as an agent of Clock Electric, called Lufkin
at home. Andrews stated that he heard Lufkin had
signed an authorization card for Local 38. Andrews
asked why Lufkin had signed the card and who else had
signed cards. Andrews himself named approximately 13
people who he knew or suspected had done so. (From
the beginning of Local 38’s campaign, Clock maintained
a list of employees who he knew or suspected had signed
union cards.) Within hours, Clock also called Lufkin at
home and arranged to meet with him at a restaurant that
evening.
At the restaurant, Clock told Lufkin that other employ-
ees considered Lufkin to be a leader. Clock then spoke
against Local 38 and about his plan to keep Local 38 out
by bringing in an independent union. Clock said that if
Lufkin did not go with Local 38, then five or six other
employees would probably stay at Clock Electric. Effec-
tive January 10, 2000, Clock authorized an increase in
Skiba’s hourly wage from $21.50 to $27. Effective Janu-
ary 31, 2000, Clock approved an increase in Lufkin’s
hourly wage from $16.50 to $19.
On February 3 and 4, Primary Project Managers Dave
Rohman and William Sevcheck, acting as agents of
Clock Electric, visited Clock Electric jobsites and solic-
ited authorization cards for the CIU. Rohman and
Sevcheck told the employees not to worry about dues,
because Clock Electric would reimburse them for the
cost of the dues through raises. On February 8, 2000,
Clock Electric granted recognition to the CIU. The CIU
held meetings with employees on February 15 and 16.
Skiba did not attend these meetings. Afterwards, the
judge found, Clock told Skiba that “he was not paying
Skiba all of this money” not to show up at the meetings.
The allegation that the raises given to Skiba and
Lufkin were unlawful turns on proof of the Respondent’s
motivation. Under the Wright Line causation test, the
General Counsel bears the initial burden here of showing
that the raises were motivated, at least in part, by anti-
union considerations. The General Counsel can meet
this burden by showing that employees were engaged in
union activity, that the employer was aware of the activ-
ity, and that the employer harbored animosity towards
the union or union activity. Once this showing has been
made, the burden shifts to the respondent to demonstrate
that the same action would have taken place even in the
absence of the protected conduct.
The General Counsel has clearly met the initial Wright
Line burden. The credible evidence shows that: Local 38
mounted an organizing campaign among Clock Electric’s
employees; Skiba and Lufkin signed cards for this Union
in November 1999 and again in January 2000; Clock was
aware of Local 38’s campaign and kept a list of its
known or suspected employee supporters; Clock strongly
opposed Local 38; Clock initiated discussions with Skiba
and Lufkin about a pay raise soon after they signed cards
in January; and Clock and his agents committed numer-
ous unfair labor practices, including those associated
with Clock’s effectuation of an unlawful plan to bring in
an independent union to block Local 38’s campaign.
This evidence warrants the inference that a motive in
granting the wage increases was to discourage Skiba and
Lufkin from supporting Local 38’s organizational cam-
paign.
The General Counsel’s initial burden having been met,
Respondent Clock Electric therefore was required to
show that it would have granted the wage increases even
in the absence of union activities. Clock Electric con-
tends that Local 38 was not really organizing its employ-
ees when it gave these raises. It further claims that it had
no desire to discourage support for Local 38, but that it
simply wanted to keep Skiba and Lufkin, both valuable
employees, from defecting to higher-paying employment
with Local 38 signatories.
We find no merit in these claims. Even assuming that
retaining Skiba and Lufkin was one of Clock Electric’s
goals, the evidence nevertheless establishes that the pay
raises were an integral part of Clock Electric’s efforts to
counter Local 38’s continuing organizing campaign and
to promote the CIU as an alternative.
Contrary to Clock Electric’s claim, the Local 38 cam-
paign was active throughout January. The connection
between the campaign and the pay raises is clear. When
Clock began pay-raise discussions with Skiba and
Lufkin, neither employee had indicated an interest in
leaving Clock Electric for a Local 38 signatory em-
ployer. On the other hand, both employees had just
shown renewed interest in collective-bargaining repre-
sentation at Clock Electric by signing authorization cards
for Local 38.
The connection between the pay raises and Clock
Electric’s efforts to promote the CIU is demonstrated by
Clock’s conversations with Skiba and Lufkin about an
alternative union. The linkage could not have been made
any clearer than when Clock scolded Skiba for failing to
attend CIU meetings in February 2000. As noted previ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808
ously, Clock told Skiba, “he was not paying Skiba all of
this money not to show up at the meetings.”
Based on the foregoing, we find that Respondent
Clock Electric has failed to meet its Wright Line burden
of showing that it would have granted pay raises to Skiba
and Lufkin in the absence of protected organizational
activities by Local 38. Accordingly, we agree with the
judge that the wage increases violated Section 8(a)(3)
and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that
A. The Respondent, Clock Electric, Inc., Cleveland,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their ac-
tivities and the activities of other employees on behalf of
the International Brotherhood of Electrical Workers, Lo-
cal 38, a/w International Brotherhood of Electrical
Workers (Local 38).
(b) Soliciting grievances from employees in order to
discourage them from supporting Local 38.
(c) Promising employees wage increases in order to
discourage them from supporting Local 38.
(d) Creating the impression among employees that
their activities on behalf of Local 38 were under surveil-
lance.
(e) Creating the impression among employees that
their activities on behalf of Local 38 were futile because
it was Clock Electric’s intent to bring in another union.
(f) Coercively interrogating employees as to the rea-
sons for their activities on behalf of Local 38, and solicit-
ing employees to quit because of their activities on be-
half of Local 38 by telling them to go to work for Local
38.
(g) Granting employees wage increases in order to dis-
courage their activities on behalf of Local 38, provided,
however, that nothing here shall be construed as requir-
ing Clock Electric to rescind any wage increase it previ-
ously granted.
(h) Assisting the Congress of Independent Unions
(CIU) by instructing its employees to attend CIU meet-
ings.
(i) Assisting the CIU by having its agents solicit em-
ployees to sign authorization cards on behalf of the CIU
and by those agents engaging in this activity during
working time.
(j) Assisting the CIU by promising employees to com-
pensate them for the cost of dues for that Union.
(k) Dominating and assisting the CIU by having its
agents attend meetings conducted by the CIU, and by
having them serve as representatives of the CIU during
collective-bargaining negotiations with Clock Electric
and as stewards for the CIU.
(l) Assisting and contributing to the support of the CIU
by recognizing and bargaining with the CIU as the exclu-
sive collective-bargaining representative of its employ-
ees, unless and until the CIU has been certified by the
Board as their exclusive collective-bargaining representa-
tive.
(m) Maintaining or giving any force and effect to any
collective-bargaining agreement with the CIU covering
the bargaining unit of all of Clock Electric’s electrical
classification employees, truckdrivers, and warehouse
personnel, unless and until the CIU has been certified by
the Board as the collective-bargaining representative of
those employees, provided, however, that nothing here
shall be construed to require Clock Electric to vary any
wage or substantive features of its relationship with the
employees which have been established in the perform-
ance of the contract.
(n) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold recognition from the CIU
as the representative of its employees unless and until the
CIU has been certified by the Board as their exclusive
collective-bargaining representative.
(b) Jointly and severally with the CIU reimburse all
former and present employees employed by Clock Elec-
tric in the bargaining unit of electrical classification em-
ployees, truckdrivers, and warehouse personnel who
joined the CIU for all initiation fees, dues, and other
moneys which may have been exacted from them, with
interest thereon, in the manner provided in the remedy
section of the judge’s decision.
(c) 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.
(d) Within 14 days after service by the Region, post at
its facilities in Cleveland, Ohio, copies of the attached
notice marked “Appendix A.”4 Copies of the notice, on

4 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-
CLOCK ELECTRIC, INC. 809
forms provided by the Regional Director for Region 8,
after being signed by Clock Electric’s authorized repre-
sentative, shall be posted by Clock Electric 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 Clock Electric to ensure that the notices
are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these pro-
ceedings, Clock Electric has gone out of business or
closed the facility involved in these proceedings, it shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by it at any time since January 10, 2000.
(e) Post at the same places and under the same condi-
tions copies of Appendix B as soon as it is forwarded by
the Regional Director for Region 8.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Clock Electric has taken to com-
ply.
B. The Respondent, Congress of Independent Unions
(CIU), Alton, Illinois, and Cleveland, Ohio, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Receiving assistance and accepting recognition
from Clock Electric, Inc., at a time when the CIU does
not represent an uncoerced majority of Clock Electric’s
employees.
(b) Acting as the collective-bargaining representative
of the electrical classification employees, truckdrivers,
and warehouse personnel of Clock Electric, unless and
until the CIU has been certified by the Board as the col-
lective-bargaining representative of those employees.
(c) Maintaining or giving any force and effect to any
collective-bargaining agreement with Clock Electric,
covering the bargaining unit of all of Clock Electric’s
electric classification employees, truckdrivers, and ware-
house personnel of Clock Electric, unless and until the
CIU has been certified by the Board as the collective-
bargaining representative of those employees.
(d) In any like or related manner restraining or coerc-
ing employees in the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with Clock Electric, reim-
burse all former and present employees employed by

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Clock Electric in the bargaining unit of electrical classi-
fication employees, truckdrivers, and warehouse person-
nel who joined the CIU for all initiation fees, dues, and
other moneys which may have been exacted from them,
with interest thereon, in the manner provided in the rem-
edy section of the decision.
(b) 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.
(c) Within 14 days after service by the Region, post at
its facilities in Alton, Illinois, and Cleveland, Ohio, cop-
ies of the attached notice marked “Appendix B.”5 Copies
of the notice, on forms provided by the Regional Director
for Region 8, after being signed by the CIU’s authorized
representative, shall be posted by the CIU and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
CIU to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Sign and return to the Regional Director sufficient
copies of the notice for posting by Clock Electric, at all
places where notices to employees are customarily
posted.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the CIU has taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the 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
Chose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
5 See fn. 4, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810
Choose not to engage in any of these protected
activities.

WE WILL NOT coercively interrogate employees about
their activities and the activities of other employees on
behalf of the International Brotherhood of Electrical
Workers, Local 38, a/w International Brotherhood of
Electrical Workers (Local 38).
WE WILL NOT solicit grievances from employees in or-
der to discourage them from supporting Local 38.
WE WILL NOT promise employees wage increases in or-
der to discourage them from supporting Local 38.
WE WILL NOT create the impression among employees
that their activities on behalf of Local 38 are under sur-
veillance.
WE WILL NOT create the impression among employees
that their activities on behalf of Local 38 are futile be-
cause it is our intent to bring in another union.
WE WILL NOT solicit employees to quit because of their
activities on behalf of Local 38 by telling them to go
work for Local 38.
WE WILL NOT promise or grant employees wage in-
creases in order to discourage their activities on behalf of
Local 38, provided, however, nothing here shall be con-
strued as requiring us to rescind any wage increase pre-
viously granted.
WE WILL NOT assist the Congress of Independent Un-
ions (CIU) by instructing our employees to attend CIU
meetings.
WE WILL NOT assist the CIU by having our agents so-
licit employees to sign authorization cards on behalf of
the CIU and by those agents engaging in this activity
during working time.
WE WILL NOT assist the CIU by promising employees
to compensate them for the cost of union dues for the
CIU.
WE WILL NOT dominate and assist the CIU by having
our agents attend meetings conducted by the CIU, serve
as representatives of the CIU during collective-bargain-
ing negotiations with Clock Electric, Inc., or serve as
stewards for the CIU.
WE WILL NOT assist or contribute to the support of the
CIU by recognizing and bargaining with the CIU as the
exclusive collective-bargaining representative of our
employees unless and until the CIU is certified by the
Board as the collective-bargaining representative of our
employees.
WE WILL NOT maintain or give any force and effect to
any collective-bargaining agreement with the CIU cover-
ing the bargaining unit of all of our electrical classifica-
tion employees, truckdrivers, and warehouse personnel
unless and until the CIU has been certified by the Board
as the collective-bargaining representative of those em-
ployees, provided, however, nothing here shall be con-
strued to require us to vary any wage or other substantive
features of our relationship with the employees which
have been established in the performance of the contract.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL withdraw and withhold recognition from the
CIU as the representative of our electrical classification
employees, truckdrivers, and warehouse personnel unless
and until the CIU has been certified by the Board as their
exclusive collective-bargaining representative.
WE WILL jointly and severally with the CIU reimburse
all our former and present employees in the bargaining
unit of electrical classification employees, truckdrivers,
and warehouse personnel who joined the CIU for all ini-
tiation fees, dues, and other moneys which may have
been exacted from them with interest.

CLOCK ELECTRIC, INC.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the 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
Chose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT receive assistance and accept recognition
from Clock Electric, Inc., at a time when we do not rep-
resent an uncoerced majority of Clock Electric’s employ-
ees.
WE WILL NOT act as the collective-bargaining represen-
tative of the electrical classification employees, truck-
drivers, and warehouse personnel of Clock Electric,
unless and until we have been certified by the Board as
the collective-bargaining representative of those employ-
ees.
WE WILL NOT maintain or give any force and effect to
any collective-bargaining agreement with Clock Electric,
covering the bargaining unit of all of its electrical classi-
fication employees, truckdrivers, and warehouse person-
CLOCK ELECTRIC, INC. 811
nel unless and until we have been certified by the Board
as the collective-bargaining representative of those em-
ployees.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL jointly and severally with Clock Electric, re-
imburse all former and present employees employed by it
in the bargaining unit of electrical classification employ-
ees, truckdrivers, and warehouse personnel who joined
the CIU for all initiation fees, dues, and other moneys
which may have been exacted from them with interest.

CONGRESS OF INDEPENDENT UNIONS

Thomas M. Randazzo, Esq., for the General Counsel.
John Russell Steen, Esq., of Austintown, Ohio, for the Respon-
dent Employer.
Robert G. Raleigh, Esq., of Clayton, Missouri, for the Respon-
dent Union.
Bryan O’Connor, Esq., of Cleveland, Ohio, for the Charging
Party Union.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was tried
in Cleveland, Ohio, on March 12, 13, and 14, 2001. Charges
were filed by the International Brotherhood of Electrical Work-
ers, Local 38, a/w International Brotherhood of Electrical
Workers (Local 38) against Clock Electric, Inc. (Clock Electric
or Respondent Employer) and a separate charge was filed by
Local 38 against the Congress of Independent Unions (CIU or
Respondent Union). A consolidated complaint issued on De-
cember 14, 2000.1 The complaint, as amended hearing, alleges
that: Clock Electric violated Section 8(a)(1) of the Act by its
agents or supervisors interrogating employees, soliciting griev-
ances from employees, promising pay raises to employees, and
informing an employee that he should attend a meeting con-
ducted by the CIU; Clock Electric violated Section 8(a)(1) and
(3) of the Act by granting pay raises to its employees William
Skiba and Bryan Lufkin; and that Clock Electric violated Sec-
tion 8(a)(1) and (2) of the Act by dominating the CIU and by
rendering unlawful aid, assistance, and support to the CIU, and
that Clock Electric violated Section 8(a)(1), (2), and (3) of the
Act by recognizing and bargaining with the CIU as the exclu-
sive representative of certain of Clock Electric’s employees,
and by signing a collective-bargaining agreement with the CIU
containing a union-security clause. The consolidated complaint
alleges that the CIU violated Section 8(b)(1)(A) and (2) of the
Act by unlawfully receiving support from Clock Electric and by
accepting recognition and thereafter entering into a collective-
bargaining agreement with Clock Electric containing a union-
security clause. The supervisory and agency status of Field
Supervisor Joseph Heibel during the time period April 18 to

1 All dates are in 2000 unless otherwise indicated.
May 17;2 the supervisory and agency status of Primary Project
Manager (PPM) William Sevchek; and the agency status of
PPMs David Rohman and David Andrews on behalf of Clock
Electric were also litigated during this proceeding.3
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs4 filed
by all of the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Clock Electric, a corporation, is an electrical contractor at its
facility in Cleveland, Ohio, where it annually purchases and
receives goods valued in excess of $50,000 directly from points
outside of the State of Ohio. Clock Electric admits and I find
that it is an employer engaged in commerce under Section 2(2),
(6), and (7) of the Act. Clock Electric and the CIU admit and I
find that Local 38 and the CIU are labor organizations under
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Clock Electric is principally owned and run by its president,
Charles (Chuck) Clock.5 Clock Electric has been previously
found by the Board, for events in 1994, to have violated Section
8(a)(1) of the Act by photographing an employee engaged in
protected activity, and to have refused to hire two applicants
because of their support of Local 38 in violation of Section
8(a)(1) and (3) of the Act.6
Local 38 engaged in an organizing campaign at Clock Elec-
tric beginning around October 1999 and the Company had
about 56 employees at that time. During this period, Clock
Electric held weekly management meetings attended by Clock
Office Manager Sarah Kuneo, Field Operations Supervisor
Joseph Heibel, Sales Manager Mark Zell, Marketing Coordina-
tor Helen Clock, and three estimators.7 Clock Electric has
admitted that Operations Manager Robert Coughlin and Special
Projects Manager Robert Dunfee were statutory supervisors.
2 Clock Electric admitted that Heibel was a statutory supervisory
outside of this time period.
3 As a result of a unilateral informal settlement agreement entered
into prior to the start of the hearing, the General Counsel’s unopposed
request to sever Case 8–CA–31812 from this proceeding and to with-
draw consolidated complaint pars. 8F, G, and H, 10A and B, 11A, B,
and C, and 14, was granted at the hearing.
4 Counsel for the General Counsel filed a “Motion to Strike” a por-
tion of Clock Electric’s brief, and Clock Electric filed an opposition to
that motion. I have granted the General Counsel’s motion to strike for
reasons set forth in this decision.
5 Chuck Clock was the only individual named Clock who testified
during this proceeding.
6 See Clock Electric, Inc., 323 NLRB 1226 (1997). The Sixth Cir-
cuit, on review, concluded that Clock Electric did discriminate against
the two applicants, but remanded the matter to the Board to determine
the number of positions available. See Clock Electric, Inc. v. NLRB,
162 F.3d 907 (6th Cir. 1998). On remand the Board concluded that
there was only a position for one of the applicants. See Clock Electric,
Inc., 328 NLRB 932 (1999).
7 Helen Clock is married to Chuck Clock.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812
Chuck Clock testified that he did not like Local 38, that he
had held these feelings for a long time, and that he did not want
Local 38 to represent his employees. Respondents’ witness
William Sevchek, a primary project manager (PPM) who had
worked for Clock Electric for over 12 years, testified that he
was aware that Clock was very antiunion, and that he had heard
Clock make statements that he did not want anything to do with
Local 38. General Counsel witness Heibel, a former supervisor
at Clock Electric, credibly testified that during Local 38’s cam-
paign, he heard Clock say to both members of management and
field employees that Local 38 was out to destroy Clock Elec-
tric. Heibel credibly testified that from the beginning of Local
38’s campaign, Clock maintained a list showing the names of
employees who he knew or thought signed with Local 38.8
On November 3, 1999, Local 38 Business Manager Sam
Chilia faxed a letter to Clock stating that Local 38 was engaged
in a campaign to organize Clock Electric’s electrical workers.
The letter requested recognition for Local 38 stating that the
Union had authorization cards from a majority of the employ-
ees. The letter offered to have a card check by an independent
third party as proof of majority status. By letter to Chilia, dated
November 5, 1999, Clock Electric declined Local 38’s request
for recognition. Clock testified that he first learned of Local
38’s 1999 attempt to organize his employees on receipt of the
November 3, 1999 letter. However, Clock also testified that,
before receiving the letter, he had heard from about 15 to 20
people, both employees and management, that there were Local
38 supporters in Clock Electric’s employ. Clock testified that
employees were volunteering to him, without request, the
names of employees who had signed with Local 38. Clock
testified that during November and December 1999 and Janu-
ary or February, Chilia called Clock to try to persuade him to
voluntarily sign a contract with Local 38. Clock refused
Chilia’s requests.
B. The November 6, 1999 Letter Rescinding Local 38 Cards
General Counsel witness Bryan Lufkin worked for Clock
Electric for around 5 years as an electrician until he left to be-
gin working for a Local 38 contractor on March 1. Lufkin testi-
fied that, around the time the Local 38 campaign started, Lufkin
inquired with Clock as to the viability of Clock Electric’s op-
eration if Lufkin did not sign a Local 38 card. Lufkin credibly
testified that Clock stated that he and Dunfee had made plans

8 I have credited this and other aspects of Heibel’s testimony al-
though I found his memory to be faulty in certain areas and that he
exaggerated certain aspects of his testimony. In crediting certain por-
tions of Heibel’s testimony, I have considered his and other witnesses’
demeanor, the probability of events, and that certain allegations Heibel
made were similar to credited testimony of other witnesses. Clock did
not deny the maintenance of a list of Local 38 supporters during his
testimony, although counsel for Clock Electric denied the list’s exis-
tence when requested to produce it at the hearing. I do not credit
Clock’s testimony that he had only one brief discussion with Heibel
about Local 38 where he claimed that he told Heibel that, as a member
of management, Heibel had to stay out of it. Clock’s antipathy towards
Local 38, Clock’s admission that there were many conversations about
Local 38 between himself and employees and members of manage-
ment, and his close relationship with Heibel at the time convince me
that Heibel’s testimony should be credited as set forth above.
for an independent union to quickly come in so that Local 38
could no longer “fuck” with him. Similarly, Heibel credibly
testified that, sometime before his late December 1999 vaca-
tion, he suggested that Clock consider the United Electrical
Workers Union as an alternative to Local 38. Clock responded
that he had already talked to someone from another contractor
about an independent union. Heibel credibly testified that in a
second conversation with Clock, around this same time period,
Clock stated that he was going to go with the CIU to keep Lo-
cal 38 out. Clock told Heibel that if he was asked by anyone to
name employee Jeff Poling, who used to work for a CIU repre-
sented employer, as the one who brought the CIU in because
Clock could not be involved in it.9
Lufkin credibly testified that: Lufkin attended a staff meet-
ing where Clock introduced Coughlin as a speaker. Coughlin
spoke against Local 38 and stated that employees would work a
couple of weeks if they were with Local 38 and then be laid off.
After Coughlin spoke, Clock stated that employees should see
Dave Rohman, who was employed at Clock Electric as a PPM,
if they wanted to take back their Local 38 card. After the meet-
ing, Lufkin left the shop and went to his car. At that time, he
approached Rohman and stated that Clock said to talk to him if
they wanted to take back their card. Rohman had a folder con-
taining about 30 form letters. Rohman told Lufkin to sign the
letter and Lufkin signed it.10 The letter Lufkin signed had a
typewritten date of November 6, 1999. The letter was ad-
dressed to Local 38 and to the National Labor Relations Board
Region 8. It reads, in pertinent part, “I hereby revoke my au-
thorization for Local Union No. 38 to represent me.” General
Counsel witness William Skiba Jr. signed a Local 38 authoriza-
tion card on November 1, 1999.11 Skiba testified that after he
signed the card, Clock held a meeting where he stated that he
was disappointed that there were a lot of people who had signed
up for Local 38. Skiba testified that Clock stated that Rohman
had signup cards if the employees wanted to revoke their Local
38 cards. Skiba testified that following the meeting he ap-
proached Rohman in the parking lot. Rohman was busy, how-
ever, Rohman subsequently approached Skiba and had him sign
an identical form letter, dated November 6, 1999, to the one
signed by Lufkin rescinding Skiba’s Local 38 card.12
9 Clock did not specifically deny having these conversations with
Lufkin or Heibel.
10 Two Local 38 cards with Lufkin’s signature were placed into evi-
dence. One card is dated January 3, and the other card is undated. I
credit Lufkin’s testimony that he signed the undated card before signing
Rohman’s retraction letter.
11 While some of his evaluations listed him as a journeyman electri-
cian, Skiba credibly testified that he always worked as a PPM at Clock
Electric during the course of his employment.
12 Skiba’s testimony varied from Lufkin’s in that he testified that
Coughlin had spoken negatively about Local 38, at a prior company
meeting, and that it was at a second meeting that Clock informed em-
ployees that Rohman had a letter if they wished to withdraw their Local
38 cards. Skiba also testified that at the second company meeting,
Clock said that he would never buckle under Local 38, that he would
sell the Company or go under because he did not like Local 38. Skiba’s
recollection as to dates was very hazy. I credit Lufkin that Coughlin
spoke at the same meeting at which Clock informed employees to see
Rohman if they wanted to withdraw their Local 38 cards. I credit
CLOCK ELECTRIC, INC. 813
1. The testimony of the Respondents’ witnesses
Clock testified that he called a mandatory meeting, sometime
after he learned of Local 38’s organizing campaign, and that he
believed that it was after he received Local 38’s November 3,
1999 letter. Clock initially could not recall the date of the
meeting, but he later testified that he thought that it was in No-
vember 1999. Clock testified that he held the meeting because
there was a rumor that he was going to retire, employees were
asking him about Local 38, and Local 38 was trying to con-
vince his employees to work for Local 38 contractors. Clock
testified he asked Coughlin to relate his experiences with Local
38 at the meeting. Clock denied knowledge of the November 6,
1999 letter revoking employees’ Local 38 authorization cards
and he denied advising employees that Rohman was distribut-
ing such a letter.
Respondents’ witnesses PPMs Rohman and William
Sevchek testified that they attended the company meeting
where Coughlin spoke about Local 38 and they denied that
anyone said that employees could rescind their Local 38 cards
at the meeting.13 Rohman testified that he obtained the lan-
guage for November 6, 1999 letter for employees to rescind
their Local 38 cards from an attorney who worked with his
mother at another company. He testified that the letter was
typed on November 6, and Rohman started soliciting signatures
on the letter a couple of days thereafter. Rohman named five
people who signed the letter, including Sevchek, Skiba, and
Lufkin. Rohman testified that no one from Clock Electric in-
structed him to draft the letter. On November 5, 1999, Clock
signed off on a $2 an hour pay raise for Sevchek, effective No-
vember 1, 1999. Sevchek testified that it was the largest raise
he had received to date. Sevchek testified that Rohman called
him at home about the November 6, 1999 letter to revoke his
Local 38 authorization card. Rohman explained that Sevchek’s
signing the Local 38 card gave Local 38 a chance to “get a
majority of the vote to come in and organize. Retracting your
card takes away another individual.”
2. Credibility
It was stated in Rawac Plating Co., 172 NLRB 1620, 1629
(1968), enfd. 422 F.2d 1259 (6th Cir. 1970), that:

Credibility generally may be resolved by impeachment, sub-
stantial contradiction, or uncontroverted facts, and in many in-
stances by objective observation of the witness’ aim to result
in findings based on “consistent and inherent probabilities of
testimony.” Universal Camera Corporation v. N.L.R.B., 340
U.S. 474, 496 [1951]. There “is no reason for refusing to ac-
cept everything a witness says, because you do not believe all
of it; nothing is more common in all kinds of judicial proceed-

Lufkin and Skiba’s testimony that Clock suggested to employees that
they see Rohman about rescinding their Local 38 cards at a company
meeting. I do not credit Skiba’s uncorroborated testimony that Clock
stated that he would sell the Company or go under because he did not
like Local 38 and note that this statement was not alleged as violative
of the Act in the consolidated complaint. In this regard, I have con-
cluded that if such a statement was made by Clock, Lufkin would have
remembered it.
13 I have credited Clock’s testimony over Sevchek’s denial and have
concluded that the meeting was mandatory.
ings than to believe some and not all.” N.L.R.B. v. Universal
Camera Corporation, 179 F.2d 749, 754 (C.A. 2 [1950]), re-
versed on other grounds 340 U.S. 474 [1951].

In Rawac Plating Co., supra at 1621, the Board considered the
timing of employees’ discharges shortly after the employer
learned of an organizing campaign amongst its employees as
evidence that the reasons advanced by the respondent employer
for the discharges were pretextual. See also NLRB v. Novelty
Products Co., 424 F.2d 748, 750 (2d Cir. 1970), where the
court held that “the stunningly obvious timing of the layoffs,”
together with the other evidence, to be sufficient to warrant an
inference of discriminatory motivation. It has also been long
held that the Board is not required to accept self-serving decla-
rations of a respondent’s witnesses. See Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 469 (9th Cir. 1966).
In the instant case, I have concluded that Lufkin and Skiba,
although working for Local 38 contractors at the time of their
testimony, testified in a credible fashion to the extent that their
memories would permit. On the other hand, I did not find the
testimony of Clock, Rohman, and Sevchek to be very convinc-
ing. The timing of the Rohman’s circulation of the November
6, 1999 letter for employees to retract their Local 38 cards
raises the inference that Rohman acted in collusion with Clock
in an effort to thwart Local 38’s organization drive. In this
regard, on November 3, 1999, Clock received a fax from Local
38 proclaiming majority status and requesting recognition. By
letter dated November 5, 1999, Clock’s attorney denied Local
38’s request. On November 5, Clock signed off on Sevchek’s
largest pay raise to date effective November 1. On November
6, a form letter was typed for Clock Electric employees to re-
tract their Local 38 cards. The letter was distributed by Roh-
man and Sevchek testified that Rohman asked him to sign the
letter, which he signed, with the explanation that it would help
to prevent Local 38 from achieving majority status. There is
strong evidence of animus on the part of Clock Electric towards
Local 38, including a prior Board finding of unfair labor prac-
tices, and Clock’s admission that he continued to dislike Local
38. The timing of Rohman’s distribution of the November 6
letter is unexplained, except as I have concluded that he acted
in collusion with Clock to undermine Local 38’s proclaimed
majority status. Based on the witnesses’ demeanor, and the
record as a whole, I have credited Lufkin and Skiba’s testimony
and have concluded that on November 6, or shortly thereafter,
Clock informed employees at a mandatory company meeting
that they should see Rohman if they wanted to withdraw their
Local 38 authorization cards. Clock made these comments at
the meeting after he authorized Coughlin to speak against Local
38 on the Company’s behalf.14
14 In reaching this conclusion, I have considered that General Coun-
sel witness Joseph Heibel did not corroborate Lufkin and Skiba’s testi-
mony as to Clock’s remarks at the company meeting. However, there
was no evidence that Heibel had signed a Local 38 card. Therefore, he
would have less reason than Lufkin and Skiba to recall Clock’s instruc-
tions to employees on how to rescind their signatures from that card.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 814
C. The January Pay Raises to Skiba and Lufkin
Skiba’s evaluations reveal that he began working for Clock
Electric in November 1998. Handwritten payroll records for
Skiba show that, as of November 18, 1999, Skiba received
three or four pay increases, with the largest taking place on
November 18, 1999, in the amount of $1 per hour. Lufkin’s
handwritten pay records at Clock Electric show that he received
six or seven raises between August 1997 and November 22,
1999, including a $1.25 an hour increase on the latter date.
Lufkin’s largest increase during this time period was $1.50 per
hour.
On January 3, Lufkin and Skiba signed their second authori-
zation cards for Local 38. Skiba testified, following a leading
question as to the date that on January 3, at the Corsa jobsite,
Clock asked him if he was going to work for a Local 38 con-
tractor, or if he was going to stay at Clock Electric.15 Clock
asked what it would take to keep him working there, and Skiba
stated that money is always nice. Clock asked Skiba what he
wanted. Skiba replied $27 an hour, and Clock agreed. Skiba’s
handwritten payroll records show that Clock signed off on the
pay increase on January 17, with an effective date of January
10, raising Skiba’s pay from $21.50 to $27 an hour.16 Clock
told Skiba not to say anything to anyone about the increase
because Clock was not allowed to offer a big pay increase at a
time that Local 38 was attempting to organize. Skiba testified
that he never mentioned to Clock that he was going to leave the
Company.17 Lufkin was Skiba’s helper at the site, and Skiba
testified that Clock asked him how he thought Lufkin felt about
all of this in terms of whether Lufkin would go to Local 38 or
stay at Clock Electric. Skiba replied that he did not know.
Clock asked what Skiba thought it would take to get Lufkin to
stay, and Skiba replied more money.18

15 While I have credited the content of Skiba’s conversation with
Clock as Skiba described it, I do not credit his testimony that the con-
versation was on January 3, as Skiba had very little independent recol-
lection of dates. However, Skiba’s payroll records do support a finding
that the conversation between Skiba and Clock took place in January
2000.
16 Counsel for the General Counsel also submitted into evidence
computer printouts showing Skiba’s hourly rates in January 2000.
However, Skiba’s check date for January 21 is missing from this ex-
hibit, and I have concluded that Clock signed off on Skiba’s pay in-
crease on January 17 with a January 10 effective date as contained in
the handwritten payroll records.
17 Clock testified as follows: Clock went out to the site at Skiba’s re-
quest and Skiba brought up the Union. Clock stated that he did not
know if he was allowed to talk about it, but he might be able to answer
a specific question. Skiba stated that he was offered a job to go to work
for a union contractor, that the money was good, but that he did not
really want to go union. Clock asked Skiba what he wanted, and he
replied $27 an hour. Clock said that if it is only money, fine, but that if
it is a union issue, nonunion issue, “then I can’t go there.” Clock gave
Skiba the raise and told him not to broadcast it because everyone would
want a raise. Skiba quit around 2 or 3 weeks later telling Clock that
Dome Pyramid kept offering him more money until he could not turn it
down.
18 Skiba testified that during one of his conversations with Clock at
the Corsa jobsite, Clock asked Skiba how much he thought Lufkin
should be paid, and Skiba replied $24 an hour.
Skiba testified that representatives of Local 38 told him that
if they could not organize Clock Electric, they could find other
work for the Clock Electric employees if they wanted it. Simi-
larly, Sevchek credibly testified that he attended several meet-
ings held by Local 38 officials. The first was in September
1999. Local 38 officials Chilia and Meaney spoke at the meet-
ing touting Local 38 pay and benefits. They said that they
wanted to get as many cards signed as possible so that Clock
Electric could recognize them. Chilia also stated that Local 38
wanted to make Clock Electric a union contractor, but that if
they could not establish a majority they would take as many
Clock Electric employees as possible to work for Local 38
contractors as a means of breaking down the Company.
Lufkin credibly testified that around January 2000, Clock’s
son-in-law, Dave Andrews, an employee of Clock Electric,
called Lufkin at home.19 Andrews stated that he heard that
Lufkin had signed a Local 38 card and asked why Lufkin
signed the card. Andrews asked Lufkin who else had signed a
card. Andrews also gave Lufkin a list over the phone of people
who Andrews knew had signed a Local 38 card stating that he
knew 13 people who had signed a card. Andrews asked Lufkin
who was staying and who was going to leave Clock Electric.
Lufkin testified that it was his belief that what he told Andrews
was reported to Clock.20
Lufkin’s credited testimony reveals that: Within 3 hours after
he spoke to Andrews, Clock called Lufkin at home. Clock
stated he wanted to meet Lufkin for dinner and they met that
evening at a restaurant called Jean’s Place. During the phone
call, Clock asked Lufkin to bring some of Local 38’s literature
to the meeting. Once there, Lufkin showed Clock the literature,
and Clock stated that Local 38 workers were working a limited
number of hours. Clock stated that if they could get this other
union in quick then Local 38 could not “fuck” with us. Clock
mentioned that if Lufkin did not go with Local 38 then five or
six other employees would probably stay at Clock Electric
along with him.21
19 Andrews is actually Clock’s step son-in-law.
20 Lufkin testified that he thought that Andrews was a journeyman
electrician at the time of the phone call because they graduated appren-
ticeship school together around June 1999. However, Andrews’ testi-
mony reveals that he in fact was a PPM at that time. Heibel, in support
of Lufkin’s account of Andrews’ phone call, credibly testified that
Andrews had informed him that he was phoning people at home who
had signed a Local 38 card, or who he had thought signed a card to try
to convince them to stay with Clock Electric.
21 Lufkin gave a prehearing affidavit in September 2000. While he
mentioned Andrews’ phone call in the affidavit, he did not mention the
followup call by Clock that same day, nor did he mention the meeting
at Jean’s Place on that or any other date. Nevertheless, I do not find
this omission from Lufkin’s affidavit sufficient to discredit this aspect
of his testimony. See Gold Circle Department Stores, 207 NLRB 1005,
1010 fn. 5 (1973). In this regard, Clock admitted that he met with
Lufkin at the Jean’s Place. However, Clock testified that Lufkin called
Clock to initiate the meeting in that Lufkin was unsure of which way he
was going between both unions, and he wanted to talk to Clock about
his future. Clock testified that he assured Lufkin that he had a bright
future with the Company, but Lufkin was not sure if he was going to
leave to work for a Local 38 contractor. Clock testified that, a couple
of days later, Lufkin stated that he was going to stay, but he had a fam-
CLOCK ELECTRIC, INC. 815
Lufkin testified that on January 28, his birthday, he had a
conversation with Clock at the Corsa jobsite. Clock asked
Lufkin how much he was being paid, and Lufkin stated $16 an
hour. Clock stated that he was “fucking” Lufkin and that
Lufkin deserved $2 an hour more raising his pay to $18 an
hour.22 However, Lufkin’s handwritten pay records reveal that,
on February 3, Clock signed off on a pay increase for Lufkin
with a January 31 effective date raising his pay from $16.25 to
$19 an hour.
Lufkin credibly testified that around the end of January, or
early February, after Lufkin had received the pay raise from
Clock, Andrews called Lufkin at home. Andrews cited
Lufkin’s pay raise and he wanted to know whether Lufkin was
going to join Local 38 and leave Clock Electric. Lufkin stated
he had not made up his mind. Lufkin credibly testified that
Clock came out to the Corsa jobsite 2 or 3 days later. Clock
told Lufkin that he had heard you’re “fucking with me,” you
are going to go into Local 38 anyway. Lufkin denied it and
said it was a rumor.
Lufkin testified that around 4 or 5 days later, Clock, Skiba,
and Lufkin went to Tony K’s Restaurant near the Corsa site.
Lufkin testified that they discussed the independent union and
how close Clock was to getting things done on that. Clock also
stated that there was going to be a lot of money in the shop
once he got rid of the dead weight concerning the people who
were leaving to work for Local 38, and that Clock Electric
would be a better Company without them. Clock said that if
money is a problem wait until this is all over and that they
would have tons of money. Lufkin testified that after lunch he
returned to the Corsa site, and Clock pulled him aside and told
him that he had received a $2 raise. Lufkin thought that, at that
time, his pay went from $18 to $20 an hour. Lufkin testified
that he believed that he only had a week or so of the $20 an
hour paychecks until Lufkin left the company.23 Skiba con-
firmed that he, Lufkin, and Clock met at Tony K’s for lunch.
Skiba testified that all he could recall about this conversation
was that it was to clear the air and that Clock stated that he was
not going to retire. Skiba testified that there was not much
discussion about the Local 38 and CIU issue involving himself
because Clock had already given him a raise. He testified that
Clock and Lufkin might have discussed it. However, Skiba
testified in his prehearing affidavit that “[t]here was no mention
about the union at Clock, except that Chuck may have asked
Bryan how he felt about the union, but I’m not sure.” Clock

ily and he knew that Skiba had gotten a raise. The next day Clock gave
Lufkin a substantial raise. Clock did not provide a date for the Jean’s
Place meeting with Lufkin. I credit Lufkin to the timing of the Jean’s
Place meeting and over Clock as to the content of their conversation. I
have concluded that Clock called Lufkin to initiate the meeting as
Lufkin testified. I have considered the witnesses’ demeanor and the
record as a whole to conclude that Clock actively contacted employees
in his efforts to combat Local 38.
22 Lufkin later testified somewhat inconsistently to his testimony that
this conversation with Clock took place on January 28, which was on a
Friday, by stating that the conversation took place on a Wednesday, and
that Lufkin’s raise was made retroactive to the prior Monday.
23 There were no payroll records submitted in evidence to corrobo-
rate Lufkin’s contention that he received this raise.
testified that he had a lunch meeting with Skiba and Lufkin to
discuss the status of their job. Clock testified that Lufkin
brought up the Union, but Clock declined to talk about it.
Clock testified that there was no discussion of Local 38 at all.
1. Credibility and the testimony of the Respondents’ witnesses
I did not find Andrews, who had worked for Clock Electric
for 10 years at the time of his testimony, to be a credible wit-
ness. When Andrews was first asked his position at Clock
Electric by counsel for the CIU, he replied, “field journeyman.”
However, Andrews subsequently admitted when questioned by
counsel for Clock Electric that he had been given business
cards shortly after he had completed apprenticeship training
according him the title of primary project manager (PPM).
While he testified that he became a working foreman at that
time and began to run work, he incredibly claimed that he did
not know why he had been given the PPM job title. Andrews
also testified that he spoke to Clock several times a week
through a home visit or a phone call, and by conversations after
work. Yet, Andrews incredibly claimed that he did not know
that Clock disliked unions. Andrews also incredibly testified
that Clock never said anything in his presence about Local 38
or the CIU. Andrews testified that he and Sevchek discussed
Local 38 and that Andrews would ask Sevchek if anyone called
him and if they still wanted him to join Local 38. Andrews
testified that Lufkin was his friend and that he had called
Lufkin several times. However, Andrews denied phoning
Lufkin to discuss Local 38 or asking Lufkin the names of Local
38 supporters. Based on considerations of demeanor, and the
content of his testimony, I have discredited Andrews’ denials
and have concluded that Andrews placed the phone calls to
Lufkin concerning Local 38 as Lufkin credibly testified.
Clock explained the pay raises to Lufkin and Skiba by stat-
ing that they knew the project they were working on and it
would be hard to replace them. He testified that they were
going to leave to go to a union contractor. He testified that at
first, Skiba did not want to go and that Lufkin said that he did
not know which way he was going to go, but he could use more
money. Clock testified that he gave Skiba the raise after Skiba
told him that he was worth more money. Clock testified that he
did not know whether either Skiba or Lufkin were due for a
review for a raise, and that the raises were just based on the
conversations that he had with the employees. Clock testified
that “the union was taking guys. I was getting shorthanded. I
had to do something.”
In making credibility resolutions as to this aspect of the case,
I have considered that Skiba and Lufkin’s chronology of their
discussions with Clock concerning their pay raise did not nec-
essarily coincide with each other, or with the actual timing of
their pay raises as established by the Respondent’s records. I
attribute these discrepancies in large part to the fading of
memories due to the passage of time rather than an intent to
mislead. I have considered their demeanor and have credited
Skiba’s testimony as to his conversations with Clock as set
forth above. I have also credited Lufkin’s testimony that An-
drews twice phoned him and questioned him about Local 38 as
Lufkin reported it, and that Clock phoned Lufkin shortly after
Andrews’ initial call and requested a meeting at Jean’s Place
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
also as Lufkin reported it. I also credit Lufkin’s testimony, as
set forth above, and that he had a conversation with Clock to-
wards the end of January 2000 and that it was close in time to
Lufkin’s birthday, at which time Clock told Lufkin that he was
increasing Lufkin’s pay, without a request for that increase
from Lufkin. I do not credit, Lufkin’s testimony concerning the
meeting between Clock, Skiba, and Lufkin at Tony K’s Restau-
rant. All three witnesses testified that the meeting took place.
However, Skiba failed to corroborate Lufkin’s testimony that
Clock discussed the CIU at the meeting and Lufkin did not
mention such a discussion in his prehearing affidavit, although
he specifically testified about the meeting in his affidavit. I
have therefore concluded that Lufkin was mistaken concerning
his testimony that Clock mentioned the independent union dur-
ing the meeting at Tony K’s Restaurant. I also note that coun-
sel for the General Counsel did not submit any payroll records
to establish that Lufkin received a second raise in January or
February 2000 as Lufkin claimed, other than the one that I have
concluded that he received effective on January 31. While
Clock may have informed Lufkin that he was going to receive a
second raise at that time, I do not have sufficient basis to con-
clude that this pay increase was actually implemented.
2. Positions of the parties as to the pay increases and
related allegations
The General Counsel contends that the promising and grant-
ing pay increases to Skiba and Lufkin was done to discourage
their support for Local 38 and thereby violative of Section
8(a)(3) and (1) of the Act. It is contended that although the pay
increases and promises were couched in terms of keeping the
employees at Clock Electric, it is a violation of the Act to grant
employees pay raises in the midst of a union organizing drive to
discourage them from supporting that union. It is contended
that if Local 38 had been successful in representing Clock Elec-
tric employees, both Skiba and Lufkin would have remained in
Clock’s employ.
Clock Electric contends that this is not a case where wages
were offered to employees to abandon their support for Local
38. Rather, it was to keep them employed with Clock Electric
when they would otherwise leave the Company. It is contended
that Local 38 was not attempting to organize Clock Electric. It
is asserted that the complaint was amended to remove the alle-
gation that recognition was extended to the CIU when a ques-
tion of representation existed. Thus, there was no valid Local
38 drive. Rather, there was an effort to take employees from
Clock Electric, and in this context it was not unfair labor prac-
tice to grant pay raises.
3. Conclusions as to the pay increases and related allegations
The facts do not bare out Clock Electric’s assertion that Lo-
cal 38 was not trying to organize its employees. First by No-
vember 6, 1999, a minimum of five employees had signed Lo-
cal 38 cards as Rohman testified that he obtained signatures
from five employees on his November 6, 1999 letter wherein
the employees retracted their signatures on those cards. More-
over, on November 3, 1999, Local 38 wrote Clock stating that
it had signatures of a majority of Clock Electric’s employees
and requested recognition by way of a card check, an offer that
Clock Electric rejected. Local 38’s efforts to organize Clock
Electric’s employees continued as Skiba and Lufkin signed new
cards on January 3, and Clock testified that Chilia called him as
late as January or February to request recognition at Clock
Electric. Moreover, Local 38’s support continued at Clock
Electric into February, as CIU National Executive Vice Presi-
dent Paul Seiberlich testified that there were about 15 to 20
Local 38 supporters in attendance at the CIU’s February meet-
ings. Finally, Respondent witness Sevchek testified that he
attended several of Local 38 meetings where he was told that
the goal was to organize Clock Electric employees to obtain
recognition by Clock Electric and should that fail Local 38
would try to take away Clock Electric employees as a means of
breaking down the employer.
I have concluded from the forgoing that Local 38 and Clock
Electric were engaged in a labor dispute where Local 38 was
attempting to organize Clock Electric’s employees and seeking
recognition. Clock Electric was refusing to grant recognition,
and as a result Local 38 was attempting to find work for Clock
Electric employees with Local 38 contractors as a means of
pressuring Clock Electric to relent, grant it recognition and sign
a contract. Local 38’s repeated requests to Clock for recogni-
tion refute any contention that Local 38 was attempting to put
Clock Electric out of business.
In M.J. Mechanical Services, 325 NLRB 1098, 1106–1107
(1998), the Board rejected the respondent employer’s conten-
tion that it was entitled to discriminate against union applicants
because their activities were in accord with an objective of
depriving the employer of employees. 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-
CLOCK ELECTRIC, INC. 817
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 Arlington Electric, 332 NLRB 845, 849 (2000), an em-
ployee was found to have engaged in protected activity when
he distributed a flyer informing employees of union rates and
that an IBEW local needed their services. In QIC Corp., 212
NLRB 63, 68 (1974), an employer alleged that an employee
was engaged in disloyalty when she and her coworkers sought
employment with a competitor. The administrative law judge
concluded, as affirmed by the Board that “the Respondent of-
fered no evidence of any conduct by Aldrich or the other em-
ployees which exceeded the bounds of protected concerted
activity and which constituted disloyalty within the meaning of
any decided cases. The employees were bound by no contract
to remain with the Respondent and, as a result, were free at any
time they wished to exercise economic self-help and seek better
paying jobs.” In NLRB v. Technicolor Government Services,
795 F.2d 916 (11th Cir. 1986), the court upheld the Board’s
conclusions that an employee was engaged in union and pro-
tected concerted activity in distributing applications for em-
ployment with bidders competing with employer for a contract
with the United States Air Force, that such activity did not lose
its protection for being disloyal to the employer, and that dis-
charge of an employee because of such conduct interfered with
employees in exercise of their statutory rights in violation of
Section 8(a)(3) and (1) of the Act. See also Boeing Airplane
Co., 110 NLRB 147 (1954), enfd. denied 238 F.2d 188 (9th Cir.
1956), where the Board majority held that the organization of a
“Manpower Availability Conference” which attempted to pro-
cure job offers for Boeing employees from competitors was
protected conduct in that it was designed to enhance the union’s
bargaining position with Boeing and for mutual aid and protec-
tion in securing alternative employment for union members.24
In Huck Store Fixtures Co., 334 NLRB 119, 123 (2001), the
Board held the following concerning wage increases it found to
be violative of Section 8(a)(3) and (1) of the Act:

Thus, the Respondent’s testimony shows that the March 17
wage increases were given on an ad hoc basis rather than on
the basis of any predetermined schedule and that the wage in-
creases had not been planned before the Respondent became

24 In Boeing Airplane Co. v. NLRB, supra, the Ninth Circuit refused
to enforce the Board’s order in Boeing, supra. The court found the
discharge there to be lawful because the union limited its association
with the alleged discriminatee, and because the employee refused to
give up his position as a licensed and bonded employment agent. The
court noted that Boeing did not attempt to undermine the membership
in the bargaining unit, and it continued to earnestly negotiate with the
union. Here, for the reasons set forth below I have concluded that
Clock Electric, aside from its granting of wage increases during Local
38’s organizing drive, engaged in other unlawful conduct in violation
of Sec. 8(a)(1), (2), and (3) of the Act in an effort to undermine Local
38’s organizing drive.
aware of its employees’ union activity and the role that the
employees’ dissatisfaction with low wages played in that ac-
tivity. Consequently, under these circumstances, and given the
wage increases’ close proximity to the unlawful March lay-
offs and discharges, we agree with the judge that the March
17 wage increases violated Section 8(a)(3) and (1) of the Act,
as we find that they were motivated by the Respondent’s de-
sire to discourage the employees’ union activities and would
not have been made in the absence of such activities. See
NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964) (Sec.
8(a)(1) “prohibits not only intrusive threats and promises but
also conduct immediately favorable to employees which is
undertaken with the express purpose of impinging upon their
freedom of choice for or against unionization and is reasona-
bly calculated to have that effect”); Holly Farms Corp., 311
NLRB 273, 274 (1993), enfd. 48 F.3d 1360 (4th Cir. 1995),
affd. 517 U.S. 392 (1996) (inference of improper motivation
and interference with employee free choice drawn from evi-
dence and “failure to establish a legitimate reason for the tim-
ing of the increase”).25

I have concluded, based on the forgoing analysis, that Local
38 was engaged in a campaign to try to organize Clock Electric
employees in an effort to obtain recognition and a collective-
bargaining agreement with Clock Electric and that as part of
that effort and in order to put pressure on Clock Electric Local
38 informed employees of the benefits of working for a union
contractor and offered to place Clock Electric employees with
such contractors when work became available. I have con-
cluded that Local 38’s actions constituted protected union ac-
tivity and that employees listening to Local 38’s entreaties were
similarly engaged in conduct protected by the Act. See M.J.
Mechanical Services, supra; Arlington Electric, supra; QIC
Corp., supra; NLRB v. Technicolor Government Services, su-
pra; and Boeing Airplane Co., supra. Accordingly, I have con-
cluded that Clock violated Section 8(a)(1) of the Act when
around mid-January, at the Corsa jobsite, he asked Skiba if he
was going to work for a Local 38 contractor, or if he was going
to stay at Clock Electric in that Clock interrogated Skiba con-
cerning his activities pertaining to Local 38. I also find that
Clock solicited grievances from Skiba in violation of Section
8(a)(1) of the Act by asking him what it would take to keep him
working at Clock Electric, and that Clock also violated Section
8(a)(1) of the Act by promising Skiba a pay increase to dis-
courage his union activities, and that Clock violated Section
8(a)(3) and (1) of the Act by increasing Skiba’s pay to $27 in
January, Skiba’s largest raise to date, which came about di-
rectly as a result of Clock’s questioning of Skiba pertaining to
Skiba’s union activity.26 I have concluded that the Respondent
25 But see Perdue Farms v. NLRB, 144 F.3d 830, 833 (D.C. Cir.
1998), where the court refused to find that a wage increase violated
Sec. 8(a)(3) of the Act, although the court concluded that the wage
increase violated Sec. 8(a)(1). However, I am bound by Board law as
to a Sec. 8(a)(3) finding, and in any event the remedy is the same if a
wage increase is only found to violate Sec. 8(a)(1) of the Act. See In
Home Health, Inc., 334 NLRB 281, 284 (2001).
26 While the General Counsel did not assert in the complaint that all
of the remarks by Clock as set forth above, violated the Act as I have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
failed to establish a legitimate reason for the timing of the in-
crease. In this regard, Skiba had just received an increase in
November 1999, and the evidence reveals that the increase
came about as a direct result of Clock’s questioning Skiba
about his protected union activities. While Clock Electric con-
tends that it gave Skiba the increase to prevent him from leav-
ing to work for a Local 38 contractor, I have concluded that
Skiba’s discussing the possibility of leaving with Local 38 was
part and parcel of his protected activity in an effort to obtain
union representation and that Clock’s granting him a large un-
scheduled wage increase was clearly motivated by his desire to
discourage the employees’ union activities and the wage in-
crease would not have been made in the absence of those activi-
ties. Accordingly, I conclude that the Skiba’s January wage
increase violated Section 8(a)(3) and (1) of the Act.
I have concluded that Andrews, Clock’s son-in-law, interro-
gated Lufkin as to his union activities and as to the union ac-
tivities of other employees, and that he created the impression
of surveillance of employees’ union activities when in January,
Andrews phoned Lufkin at home stating that he had heard
Lufkin signed a Local 38 card, asked him why he signed the
card, gave Lufkin a list of employees who he stated that he
knew signed a Local 38 card, and asked Lufkin who was stay-
ing and who was leaving Clock Electric. The consolidated
complaint alleges that Andrews was an agent of Clock Electric.
While Lufkin did not know that Andrews was a PPM at the
time he phoned Lufkin, Andrews familial relationship with
Clock was known to Lufkin and is a factor to be considered in
determining his agency status for Clock Electric. That is par-
ticularly so here when Andrews’ conduct mirrored the anti-
union positions of management. See Aircraft Plating Co., 213
NLRB 664 (1974). Moreover, Lufkin’s credited testimony
reveals that within 3 hours of Andrews phone call, that Clock
also phoned Lufkin, requested a meeting, and requested that
Lufkin bring the literature that Local 38 had given him. I have
concluded that Clock interrogated Lufkin about his activities
concerning Local 38 in violation of Section 8(a)(1) of the Act
by asking Lufkin to bring his Local 38 materials to their meet-
ing. During their January meeting, which took place the date of
Andrews phone call, Clock also spoke negatively of Local 38,
and told Lufkin that if they could bring this other union in
quickly that Local 38 could not “fuck” with them. By inform-
ing Lufkin of his intent to bring in another union, I have con-
cluded that Clock informed Lufkin that his activities on behalf
of Local 38 were futile, and that such conduct violated Section
8(a)(1) of the Act.27
Clock met with Lufkin at the Corsa jobsite towards the end
of January, and Clock Electric’s payroll records reveal that at

found, I have concluded that the content of Clock’s conversations with
Skiba were fully litigated and that the credited testimony warranted the
findings and conclusions of law as set forth above. See Marshall Dur-
ban 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 violations were found for matters not
specifically alleged in the complaint but that were fully litigated.
27 While certain of Clock’s conduct, as set forth above, was not al-
leged in the consolidated complaint, I have concluded that the sub-
stance of these conversations was fully litigated.
that time, Lufkin was given a $2.75 an hour pay increase. It
was Lufkin’s largest increase to date, although he had just re-
ceived an earlier increase in November 1999. Lufkin was not
given any explanation for the wage increase, except that Clock
asked him his hourly rate, and then told Lufkin that Clock was
“fuckin” Lufkin based on what he had been paying him. I have
concluded that this pay increase was linked to Lufkin’s union
activities as well as to Local 38’s organizing drive and that
Clock’s raising Lufkin’s pay in January violated Section 8(a)(3)
and (1) of the Act for the reasons set forth above. Lufkin’s
credited testimony reveals that Andrews again called Lufkin at
home after Lufkin had received the raise and he asked Lufkin,
now that he had received a raise, whether Lufkin was going to
join Local 38 and leave Clock Electric. I have concluded that
by this conduct Andrews interrogated Lufkin as to his union
activities in violation of Section 8(a)(1) of the Act. A few days
after the conversation with Andrews, Clock approached Lufkin
at the Corsa jobsite and he told Lufkin that he had heard that
Lufkin was “fucking” with him in that Lufkin was going to go
into Local 38 anyway. I have concluded that by this conduct
Clock also interrogated Lufkin as to his union activities in vio-
lation of Section 8(a)(1) of the Act.28
D. The February 3 and 4 CIU Card Solicitation
On February 3, Skiba signed an authorization card for the
CIU. Skiba credibly testified to the following: On February 3,
Rohman and Sevchek came out to the Corsa jobsite where
Skiba was working as the PPM and as such was in charge of the
site. They arrived after lunch and the employees were all back
to work. There were two lifts on the job, and they were both
running at the time Rohman and Sevchek arrived. Lufkin was
on one of the lifts. Skiba asked Rohman and Sevchek what
they were doing, and he was told that they took the day off
because Clock asked them to go around to talk about this other
union. They stated that they did not want to go with Local 38,
but wanted to keep it in house. Skiba testified that he allowed
Sevchek and Rohman to talk to employees at that time because
they stated that they were there pursuant to Clock’s instruc-
tions. During their meeting with the employees, Rohman and
Sevchek were asked how it worked, and Skiba asked the
amount of union dues and who was going to pay them.
Sevchek stated that they would not really pay dues because
Clock would make it up with a pay raise. Lufkin asked if this
was going to hurt him with his Local 38 card, and they did not
know the answer. Skiba asked Sevchek in a joking fashion if
Clock was going to be the president, and Sevchek laughed an
said maybe. Sevchek then stated that they would vote on their
officials. Sevchek and Rohman wrote down things the employ-
ees wanted such as a pay raise. In addition to Skiba, there were
four or five other employees at the site. Skiba testified that the
employees were paid for the time that they spent talking to
Sevchek and Rohman because Skiba filled out their time-
sheets.29
28 Again, while this conduct not specifically alleged in the complaint,
I have concluded that it was fully litigated.
29 Skiba testified Rohman and Sevchek came to the site at around 1
p.m., that they usually took their afternoon breaks around 2 p.m., and
that the meeting lasted around 45 minutes.
CLOCK ELECTRIC, INC. 819
Lufkin confirmed that Rohman and Sevchek came out to the
jobsite after lunch while the employees were working. Rohman
and Sevchek told Lufkin to come down from the lift because
they needed to talk to him. Lufkin testified that Rohman and
Sevchek said that they had taken a day off to come out and talk
to the employees about the CIU for Chuck Clock.30 They asked
the employees to sign cards and stated that they were there to
answer questions about the independent union. Lufkin asked if
his signing a CIU card would constitute a conflict with the card
that he signed for Local 38. They did not have an answer and
Lufkin refused to sign the card. Sevchek wrote Lufkin’s ques-
tion down and said that he would get back to Lufkin. Lufkin
testified that Sevchek never got back to him.31
Credibility and the Testimony of the
Respondents’ Witnesses
According to Rohman and CIU Official Seiberlich, it was
Rohman who contacted Seiberlich to initiate the CIU campaign
at Clock Electric. Seiberlich testified that he received the initial
call from Rohman around mid- to late-January.32 Seiberlich
testified that he assumed Rohman was not a supervisor or agent
for Clock Electric because, “I grilled him on it,” during the
phone call. He testified that Rohman informed him that he was
just a field electrician. However, despite the alleged grilling of
Rohman concerning his supervisory status on the phone, and of
Sevchek and Rohman of the same during their February 2
meeting, Seiberlich testified that Rohman never informed him
that Rohman was a project manager, and there was no claim
that either Sevchek or Rohman informed Seiberlich that they
were PPMs.33
Seiberlich testified that he traveled to Cleveland and met
Rohman and Sevchek on the evening of February 2 at which
time he gave them CIU authorization cards for distribution and
he sent them additional cards by UPS the next day. Seiberlich
testified that Rohman and Sevchek had already arranged to take
February 3 and 4 off to distribute the cards by the time they met
on February 2. He testified that he told them that they had to
distribute the cards during breaks, lunchbreaks, and before and
after work. Seiberlich testified that he told Sevchek and Roh-
man this because distributing the cards during working time
would be illegal.

30 Lufkin gave a prehearing affidavit on September 14. Lufkin testi-
fied in the affidavit that the employees were told that they would have
to pay dues to the Union, but that Clock would increase their pay to
make up the cost of the dues.
31 Lufkin testified that lunch break was usually from 12 to 12:30
p.m., that some days it was a little longer. He estimated that Rohman
and Sevchek came at around 1:15 or 1:30 p.m. However, Lufkin ad-
mitted that he stated in his prehearing affidavit that Rohman and
Sevchek came at around 2 p.m., which he described in the affidavit as
just after lunch.
32 Rohman’s recollection of dates was not good. Rohman could not
recall when he first contacted Seiberlich stating that it was in Novem-
ber or December, or later than that, and that the year was 1998 or 1999.
When told that Seiberlich had testified that the phone call was in Janu-
ary 2000, Rohman did not disagree with Seiberlich’s testimony.
33 Rohman and Sevchek did not confirm Seiberlich’s testimony that
he questioned them about the possibility of their being supervisors.
Sevchek contradicted Seiberlich’s claim that he and Rohman
requested vacation time for February 3 and 4, prior to the Feb-
ruary 2 meeting. In this regard, he testified as follows:

Q. What happened next after that meeting with Mr.
Seiberlich?
A. Me and Dave sat down. When we departed with
Mr. Seiberlich, we decided—we had to figure out how we
were going to do that as far as visiting job sites and what
not, the times that we would be able to be there, breaks
and lunch, and that’s what we decided to do. We put in
our requests for vacation, and it was okayed, and we went
and visited the job sites.34

Clock testified that Sevchek and Rohman submitted written
vacation requests for the days they went to visit the jobsites to
distribute the CIU cards. He testified that vacation requests
were usually approved by the operations manager and that he
did not know why they took the time off. Clock testified that
leave requests were supposed to be filed 2 weeks in advance,
but that this policy was not enforced. He testified that it would
be a violation of company policy for them to be distributing
cards during working time, but that they could do it during
breaks and lunchtime. He testified that he was not informed by
employees or management that Sevchek and Rohman distrib-
uted the CIU cards.
Sevchek testified as follows: Rohman and Sevchek went to
the Corsa jobsite to distribute the CIU cards, and it was their
third and last stop on February 3. They arrived at the site about
2 p.m.35 Skiba was running the job. Sevchek asked him if they
had taken their afternoon break and he said no. Sevchek asked
Skiba if they were in a good position to stop and he said yes,
that he would get his guys and they would take an early break.
Sevchek thought that there were three employees on the job in
addition to Skiba. They were there for about 15 minutes, dur-
ing which time they reviewed the CIU the cards with the em-
ployees, what Seiberlich told them the CIU was about, and
answered the questions they could. They told the employees
that depending on how many cards were signed, they would
have a meeting with Seiberlich after they were recognized, and
they could answer more questions at that time. A couple of the
employees said that they needed to think about it and asked for
the cards. Sevchek wrote down Lufkin’s question about the
effect signing a CIU card would have on the card he signed for
Local 38. Lufkin refused to sign the CIU card at the time be-
cause of this concern. Sevchek told Lufkin that he would get
back to him, and he did shortly after that. Rohman and
Sevchek spent 2 days obtaining the cards, and at the end of the
second day they mailed the cards via Federal Express to Seiber-
lich. Rohman testified that they arrived at the Corsa jobsite
between 2 and 2:30 p.m., and that Sevchek asked Skiba if they
had taken their afternoon break. Skiba said no and he agreed to
Sevchek’s request to take the break at that time. Rohman testi-
fied that they spoke to the men about the CIU for about 15 to
34 Rohman also did not corroborate Seiberlich’s testimony that they
made arrangements to take leave on February 3 and 4 prior to their
February 2 meeting with Seiberlich.
35 Sevchek later stated that they arrived around 2 or 2:15 p.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820
20 minutes. Rohman and Sevchek denied making the statement
that Clock said that it was all right for them to be there, or that
Clock asked them to go to the site.
Rohman testified that: On February 3 and 4, Sevchek and
Rohman visited five or six jobsites to solicit CIU cards. They
met with employees during lunch, morning, and afternoon
breaks. Rohman testified that not all cards were signed during
break periods in that they met people after work and called
some at their residence. However, he testified that he and
Sevchek were together when they got the cards signed.
Sevchek testified that he and Rohman visited three jobsites on
February 3, the Randall Park Mall at 9:15 a.m. where they
handed out two cards; the Cleveland State University site at
about 12:10 p.m. where they had three cards signed, and the
Corsa site was the last site that they went to that day. Sevchek
testified that there were only around four employees at that
Corsa site and that a couple of employees there requested cards
but refused to sign them. He testified that these were the only
cards that he solicited for the CIU that day. By Sevchek’s cal-
culations, he and Rohman had obtained a maximum of about 7
cards on February 3, during their break and lunchtime visits.
However, Seiberlich’s February 6 letter to Clock seeking rec-
ognition had 12 CIU cards dated February 3 attached.36
I have credited Skiba’s testimony, based on considerations of
demeanor and the record as a whole, as to the content of his
conversation with Rohman and Sevchek on February 3.
Skiba’s testimony as to this aspect of the case was in large part
corroborated by Lufkin, who also testified in a credible fashion.
I note that Skiba was the PPM on the site and that his recollec-
tion appeared to be particularly clear about what transpired
there. While Skiba testified that Rohman and Sevchek came to
the site at around 1 p.m. and spoke to employees for about 45
minutes, these were just estimates as there was no claim by
Skiba that he checked his watch as to the time of their arrival or
the length of their meeting. On the other hand, Rohman and
Sevchek, who were allegedly given instructions by Seiberlich
to only meet with employees during breaks or lunch periods
could only give an estimate as to the time they arrived at the
site, as well as to the length of their meeting. While I am not
convinced that the meeting lasted around 45 minutes as Skiba
testified, I believe that it took longer than the 15 to 20 minutes
that Rohman estimated based on the content of what was dis-
cussed as described by Skiba and Sevchek. I have also con-
cluded as Skiba credibly testified that he was told by Rohman
and Sevchek that they took the day off because Clock asked
them to go around to talk about another union and that during
the meeting with employees that ensued Sevchek stated that
they would not really pay dues because Clock would make it up
with a pay raise.
I have concluded that Rohman and Sevchek met with Seiber-
lich on the evening of February 2, and that based on Sevchek’s
testimony that they did not put in for leave for February 3 and 4
until the morning of February 3. I have concluded that the
officials of Clock Electric knew the purpose of the leave re-
quest in that two PPMs requested and had leave approved on

36 Rohman testified that they mailed 33 cards to Seiberlich via Fed
Express on February 4.
short notice for the same period of time and there was also no
claim that either were instructed to keep the purpose of their
leave request a secret. Accordingly, I have concluded that
Clock was aware of the reason that Rohman and Sevchek re-
quested leave, and in fact they were acting on Clock’s behest
when they solicited the signatures on the CIU cards as both
Skiba and Lufkin testified they were informed when Rohman
and Sevchek came to the jobsite. I note that Skiba, Lufkin,
Rohman, and Sevchek all testified that the employees were not
on break when they arrived at the site. Rather, I have con-
cluded that Skiba interrupted the employees work at Sevchek
and Rohman’s request when he was informed that Clock had
sent them to the jobsite to meet with the employees.
E. The February 8 Recognition of the CIU by Clock Electric,
the CIU Meetings, the Contract Negotiations, and the
April 26 Signing of a Collective-Bargaining Agreement
Between the CIU and Clock Electric
Having only given Rohman and Sevchek CIU cards for dis-
tribution on the evening of February 2, Seiberlich sent a letter
to Clock on February 6, with copies of about 30 signed authori-
zation cards, wherein he claimed majority status on behalf of
the CIU and requested recognition. By fax dated February 8,
Clock Electric Attorney Jon Steen wrote to Seiberlich granting
recognition to the CIU, and stating that “[w]e will be contacting
you shortly to begin contract negotiations.”
Seiberlich testified that he held a meeting on February 15 for
Clock Electric employees at a Holiday Inn in the Cleveland
area.37 Seiberlich testified that Sevchek and Rohman were
sitting at the head table with him on February 15. The CIU
paid for the room and 42 to 45 employees attended. The pur-
pose of the meeting was to formulate contract proposals and to
answer employees’ questions. Seiberlich testified that he had
placed Steen on notice that the CIU committee would want to
meet with the Employer on the morning of February 16 to ne-
gotiate with Clock Electric, providing that the CIU received
contract proposals on February 15. He testified that the CIU
did get its contract proposals at the February 15 meeting.
Seiberlich described the February 15 meeting as “a very ram-
bunctious meeting because we had probably 20 Local 38 guys
in the meeting that were trying to disrupt my meeting.”38
Seiberlich testified that he appointed Rohman and Sevchek as
union stewards, and that the men elected Andrews and Dave
Gibson, as committeemen. Seiberlich testified that the meeting
ended with the CIU getting its contract proposals, and that he
scheduled another meeting with the men for the evening of
February 16 at the same place.
The CIU’s negotiating committee consisting of Seiberlich,
Rohman, Sevchek, Andrews, and Gibson met with Clock Elec-
tric’s committee consisting of Clock, Steen, Zell, and Dunfee
on February 16 for negotiations. Seiberlich testified that the
37 The CIU’s office is in Alton, Illinois.
38 Seiberlich later dropped his estimate to around 15 Local 38 sup-
porters. Rohman testified that some of the men, who attended this
meeting, were shouting ridiculous demands such as $25 or $26 an hour
pay, and that the Company pay for 100 percent of medical benefits.
Rohman later testified that the men were asking for $27 or $28 an hour
which he testified was the wage scale for Local 38.
CLOCK ELECTRIC, INC. 821
meeting was from around 9 a.m. to 5 p.m. However, Clock
testified that the negotiations only lasted a couple of hours that
day. Seiberlich testified that, prior to bargaining with Clock
Electric, Seiberlich did not request any information from the
company and he did not know what benefits or wage rates the
company provided. Seiberlich testified that through the nego-
tiations on February 16 they were able to reach agreement in
principle to the terms of a collective-bargaining agreement.
Seiberlich met with the employees on the night of February
16 at the same Holiday Inn, which was again paid for by the
CIU.39 Seiberlich testified that 51 or 52 people attended the
meeting and that it was a very boisterous meeting due to disrup-
tions caused by Local 38 supporters. He estimated that 20 or
more Local 38 supporters attended the meeting and stated that
they asked questions designed to disrupt the meeting.40 Seiber-
lich presented to the employees the contract Clock had offered.
Seiberlich testified that there were no questions about the con-
tract that he failed to answer. However, Lufkin credibly testi-
fied that he asked a question about holiday pay that Seiberlich
refused to answer, and that Seiberlich also refused to answer a
question that he asked about union dues. Seiberlich testified
that at the end of the meeting the CIU held a secret-ballot elec-
tion in an effort to ratify the contract. The proposed contract
was rejected with a vote that Seiberlich estimated at 27 to 24.
Lufkin credibly testified that he did not feel that the ballot was
secret in that the people at the main table were positioned so
that they could see how he voted. He testified that Kotlarek
was standing next to the podium when Lufkin voted, and that
there was another person standing at the podium.41
Skiba credibly testified that he did not attend any of the CIU
meetings and that after the second or third CIU meeting, Clock
told Skiba that he was not paying Skiba all of this money not to
show up at the meetings.42 Skiba testified that he was also
asked during several phone calls by Andrews and Rohman to
attend the CIU meetings. Skiba was informed over the com-
pany pagers of the dates, times, and place of the CIU meetings.
Seiberlich left town on February 17. Seiberlich testified that,
during the period from February 16 to around the beginning of
April, he remained in phone contact with Rohman who told
Seiberlich that the CIU committee was continuing to meet with
Clock Electric. Eventually Seiberlich received a call and was
told that the CIU committee had what they thought would sell
to the employees. In this regard, Clock Electric had agreed to

39 Lufkin attended this meeting and credibly testified that Seiberlich,
Andrews, Rohman, Sevchek, and electrician Mike Clark (Kotlarek)
were sitting at the head table.
40 Seiberlich testified that one of the Local 38 supporters gave the
CIU committee a list of questions that Local 38 had given him to ask, a
copy of which was submitted into evidence. The last page of the
document is entitled, “Questions to ask a Yellow Dog Union Rep.”
41 Sevchek testified that Mike Collard (Kotlarek) was standing
around 3 feet from the podium to make sure that people did not vote
twice. Rohman testified that he was standing near the podium where
people voted, but that he could not see how people voted.
42 Based on considerations of the witnesses demeanor, I have cred-
ited Skiba over Clock’s denial that he made this remark. I have con-
cluded that Clock’s statement to Skiba took place in February since
Skiba left Clock Electric’s employ in early April, prior to the third CIU
meeting.
raised its offer of a second year increase from 3 to 4 percent,
and agreed to increase the percentage it paid for health insur-
ance. Seiberlich did not attend these interim negotiations with
the Employer, which were attended by Rohman, Sevcheck,
Gibson, and Andrews for the CIU. He testified that it was not
necessary for him to play a role in the interim bargaining in that
Seiberlich told the CIU committee to keep him posted and that
the contract proposals were to be whatever the men wanted.
Rohman testified that the four-member CIU committee con-
sisting of himself, Andrews, Sevchek, and Gibson had one
meeting with Clock that he could recall concerning negotia-
tions. Rohman testified that he and Sevchek were the chief
spokesmen and that the meeting lasted around 3-1/2 hours or
longer. However, Sevchek testified that the CIU committee
had two meetings with Clock and Steen that they were in April
with the first meeting lasting around 30 to 45 minutes, and the
second meeting only lasted 30 minutes. Sevchek testified that
he thought that there were only two changes to the contract that
the employees had previously rejected resulting from these
meetings and that “[t]hey were very minor changes.” Sevchek
explained that the CIU committee knew that they had to make
some “minor adjustments” to the contract in that they could not
have the employees vote on the same contract again. Following
their meeting(s) with Clock, the CIU committee met with
around 20 to 25 employees at a place called the Brown Derby
restaurant and informed the employees the terms of their new
understanding with Clock. Only CIU card signers attended this
meeting.
Seiberlich met with Clock Electric employees in Ohio on
April 25. Around 37 employees attended the meeting, includ-
ing about seven Local 38 supporters. The employees voted to
ratify the revised contract at the meeting. The meeting was of
short duration and few questions were asked. On April 26,
Seiberlich and the CIU committee met with the Clock Electric
representatives and the collective-bargaining agreement was
signed.43 Seiberlich left Cleveland on April 27 and, at the time
of the hearing, had not returned to meet with employees. The
collective-bargaining agreement ran from May 1, 2000, through
April 30, 2003, and had a union-security clause requiring mem-
bership in good standing after a 30-day grace period with the
requirement that the employees pay initiation fees, dues, and
fees normally required.
Clock testified that the employees received new benefits as a
result of the CIU collective-bargaining agreement, including:
improved overtime benefits; increased pay for working on a
holiday; an agreement to rotate apprentices; full-time employ-
ment opportunities for regular employees before using tempo-
rary agencies; a new program for testing out helpers; pay in-
creases including $1.50 an hour the first year and 4 percent
each the second and third years; minimum rates in accord with
the ABC annual wage survey; a minimum rate for new drivers;
a 25-cent-shift differential; improved standby and showup pay;
layoffs absent discipline were to be done by seniority and job
classification; and health insurance went from a 50-percent
employer contribution to 60/65/70 percent over 3 years.
43 When he testified, Seiberlich was not aware that the collective-
bargaining agreement did not have an arbitration provision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 822
F. The March Interrogation of James Bratsch
Bratsch worked for Clock Electric for around 18 years. On
February 23, Chilia sent Clock a letter on Local 38’s letterhead
listing Bratsch and eight other individuals stating that the fol-
lowing named individuals demand Local 38 wages and bene-
fits.44 Clock testified that around the time of his receipt of
Chilia’s letter the nine employees named there were issued
suspensions by Clock Electric while they were working at the
Dorn Color project. Clock testified that the nine employees
went on strike the day that they were issued the suspensions.45
Bratsch testified that around March 2000, Bratsch went to
Clock Electric to pick up his last check. At that time, he was
asked to turn in his gas card, Home Depot credit card, pager,
keys, and tools. Bratsch saw Clock, Dunfee, and a couple of
other people in the office and he had a conversation with Clock.
Bratsch credibly testified that Clock asked why Bratsch
changed his mind about wanting the Union, and he told Bratsch
to go work for the Union. Bratsch’s testimony was not contra-
dicted by Clock. Bratsch worked for Clock Electric as an elec-
trician at the time of this conversation.46 I have concluded that
although Bratsch was an open Local 38 supporter that, consid-
ering the totality of the circumstances, Clock’s statements to
Bratsch were coercive. I have concluded that Clock violated
Section 8(a)(1) of the Act by interrogating Bratsch as to the
reasons for his union activities, and by soliciting him to quit by
telling him to go to work for the Union. See Nicholas County
Health Care Center, 331 NLRB 970 (2000).
G. Heibel’s Attendance at the CIU’s April 25 Contract
Ratification Meeting
Counsel for the General Counsel called Robert Joseph (Joe)
Heibel as a witness. Heibel worked for Clock Electric for
around 13 or 14 years and he left Clock Electric’s employ in
November 2000. At the hearing, counsel for Clock Electric
stated that Heibel, as field operations supervisor, was a statu-
tory supervisor prior to April 18, 2000, at which time he was
returned to the field to work as an electrician. It was asserted
by counsel for Clock Electric that Heibel worked as an electri-
cian until May 17, 2000, when he returned to his supervisory
position.47

44 Bratsch and the other eight employees listed in Chilia’s letter were
alleged as discriminatees in the consolidated complaint for having been
suspended on February 25. However, this aspect of the complaint was
withdrawn due to a prehearing settlement.
45 Clock testified that the employees remained on strike against
Clock Electric at the time of his testimony in March 2001, although
they were working for Local 38 contractors.
46 Counsel for Clock Electric stipulated that Bratsch was not a statu-
tory supervisor at the time of this conversation, although he had worked
in that capacity for Clock Electric in the past.
47 Heibel testified that he left Clock Electric’s employ because Clock
asked him to fabricate a story on Clock Electric’s behalf concerning a
workmen’s compensation claim. Clock denied this allegation and
testified that Heibel left on good terms for an opportunity for advance-
ment. I do not have a sufficient basis on the record before me resolve
this particular credibility dispute nor do I believe that it is central to the
outcome of this case. Assuming that Heibel did leave Clock Electric on
good terms as Clock contended, such a finding could only add credence
to Heibel’s testimony against the Company. Heibel did testify that he
Heibel attended the April 25 CIU meeting at Whirly Ball fa-
cility and he voted on contract ratification at the meeting. He
testified that Clock told him that in order for him to vote for the
CIU contract that Heibel would have to be a field employee
prior to the vote. As a result, Heibel was required to return to
the field to work as an electrician from mid-April to mid-May.
Heibel testified that his title did not change, and that his duties
did not change during the month-long period in which he re-
turned to the field. He testified that while in the field, he had a
cell phone and pager and that he would receive and respond to
scheduling and other questions about other jobsites. However,
while he initially claimed that his supervisory duties did not
change while he was in the field, Heibel admitted that he per-
formed hands-on electrical work 8 hours a day while he was in
the field and that he no longer performed his prior functions as
field operations supervisor of visiting jobsites, making up the
work schedules, and working with the estimators. While he
testified that his job title did not change while he was in the
field, Heibel signed a CIU card on April 25 listing his work as
an electrician.
Heibel testified that he returned to the field after the nine
employees left Clock Electric to seek jobs with Local 38, mak-
ing it difficult for Clock Electric to complete its work.48 How-
ever, Heibel denied that he went back into the field because of a
shortage of electricians at Clock Electric. He testified that they
used agency people to fill in for the people who had left.
Heibel testified that when he returned to the field, he volun-
teered to go to the conservatory project jobsite because it was
near his home and it was a prevailing wage job.
Clock testified that Heibel volunteered to return to the field
because the Company lost a lot of employees and the job that
he was assigned to was 5 minutes from his home. Clock testi-
fied Heibel’s field assignment was listed on the work schedule
but there was nothing in Heibel’s personnel file to show a
change in work status. Clock admitted that, while he was in the
field, they called Heibel to ask him questions regarding the
status of jobs. Clock testified these type of questions ended
within a week after Heibel went to the field, and thereafter, it
was minimal. Clock testified that when they picked up some
temporary agency electricians they were able to return Heibel
to his former position.
Counsel for the General Counsel argues in his posthearing
brief that Heibel voted on the CIU contract on April 25, 2000,
and that Heibel was a supervisor at that time, even though the
Respondent employer asserts that he was placed in the field.
However, there is no complaint allegation that Heibel’s atten-
dance at the April 25 meeting violated the Act. Moreover,
while I have credited Heibel to the extent that Clock told him
that his returning to the field would allow him to vote on the
CIU contract, Heibel’s initial contention that his supervisory
duties did not change while he was in the field was undercut by

was a member of another IBEW Local at his new place of employment
where he was contacted at work by Local 38 representatives to be a
witness in this case. Heibel testified that he felt a little uncomfortable
by this contact concerning his relationship with his new employer.
48 Similarly, Clock testified that when the nine employees went on
strike in February, it made it difficult to complete the work on time.
CLOCK ELECTRIC, INC. 823
subsequent admissions during his testimony. Heibel also ad-
mitted that there was a need for him in the field due to loss of
employees, and while he testified that Clock Electric was able
to make up the loss of employees through the use of temporary
employees, no evidence was placed on the record as to when
these temporary employees were hired. Finally, while he con-
tended that he considered himself a supervisor while he worked
in the field, Heibel signed the CIU card on April 25, identifying
himself as an electrician. I have concluded that the General
Counsel has failed to demonstrate that Heibel was transferred to
the field for reasons other than legitimate business concerns
raised by Clock Electric. Moreover, the General Counsel has
failed to establish that Heibel maintained sufficient authority on
April 25 to render him a statutory supervisor at that time, or to
warrant a finding that his attendance at the April 25 meeting
violated the Act. I note that Heibel failed to testify that he was
guaranteed a return to supervisory position when he returned to
the field or that there was a date certain of his return to that
position.49
H. The General Counsel’s Motion to Strike
Following the filing of posthearing briefs, counsel for the
General Counsel filed a motion to strike a portion of Clock
Electric’s brief, and Clock Electric filed a response in opposi-
tion to that motion. The disputed portion of Clock Electric’s
brief reads, in pertinent part:

the last minute taking of an affidavit from an alleged agent of
Respondent Employer, without notice or an opportunity for
the Respondent Employer to be present in violation of both
the Board’s own rules and the code of conduct for Attorneys
in Ohio that the hearing in this matter was nothing more
tha(n) a scavenger hu(n)t by the Regional Office and the
Charging Party. (Clock Electric Br. at 32.)

49 Heibel testified that, around October or November 1999, he was
instructed by Clock to keep known or expected Local 38 supporters
working on certain jobsites to isolate them from other employees.
Heibel testified that he followed the directive. Heibel named eight
people who he stated that he had been told by Clock to assign to a
particular site. However, when he was shown the work schedules for
this time period, Heibel could not point to the jobsites or the dates that
this occurred on the schedules. Heibel’s response was, “I didn’t have
my dates correct, I guess, but I can remember at one time, I don’t have
a time or date, that those individuals were scheduled at Dorn Color
under Albert Higgley and Company on the schedules.” Clock testified
that the nine individuals named in Chilia’s February 23 letter were
assigned to the Dorn Color project, that they went on strike around that
time, and that he knew that they were Local 38 supporters for some
time before their names appeared on the letter. However, Clock denied
directing anyone to send these employees to the Dorn Color project.
There is no complaint allegation before me that Clock Electric violated
the Act by trying to isolate Local 38 supporters. Counsel for the Gen-
eral stated at the hearing that Clock’s directive to Heibel took place in
October and November 1999, outside the 10(b) period of the Act and
was being relied on as background evidence of animus. I do not find
that the General Counsel has established that Heibel was directed to
isolate Local 38 supporters in October or November 1999, and any
related conduct that may have taken place around February 2000 was
not alleged in the complaint and was not fully litigated at this proceed-
ing.
Clock Electric was referring to counsel for the General Coun-
sel’s interviewing Heibel, a former supervisor at Clock Electric
without affording Clock Electric the opportunity to be present
at the interview.
I have considered the opposing positions concerning the
General Counsel’s motion to strike and have decided to grant
said motion. Counsel for the General Counsel’s interviewing
Heibel, who was no longer in Clock Electric’s employ at the
time of the interview, without first notifying Clock Electric was
in accord with Board casehandling procedures as well as estab-
lished Board precedent in that as an ex-employee Heibel was
not an agent of Clock Electric at the time he met with counsel
for the General Counsel. See NLRB Casehandling Manual (Part
One), Unfair Labor Practice Proceedings, Section 10056.6.
This manual provision is in accord with Board law. See South-
ern Maryland Hospital, 288 NLRB 481 fn. 1 (1988). More-
over, Clock Electric raised no objection to Heibel’s testimony
at the time of the hearing, and Heibel’s affidavit revealed that
he came forward of his “own free will” and that he “know-
ingly” declined to have legal counsel from Clock Electric pre-
sent. See Singer Co., 176 NLRB 1089, 1090 (1969), enfd. in
pertinent part 429 F.2d 172 (8th Cir. 1970). Thus, I have con-
cluded that counsel for the General Counsel has acted in con-
formance with Board law in contacting Heibel, and counsel for
Clock Electric has cited no Board ruling or procedure to the
contrary.50 Accordingly, counsel for the General Counsel’s
motion to strike this portion of Respondent Clock Electric’s
brief is granted.51
I. The Supervisory Status of PPM Sevchek
Clock testified that his management team for the field staff
are the operations manager, the estimators, and the field super-
intendent. The other field positions are primary project man-
ager (PPM), project manager, lead journeyman, journeyman,
apprentice, and helper. Clock testified that a PPM will oversee
employees on the jobs, including conduit crews, wire pulling
crews, panel setting crews, and light hanging crews. The PPM
selects who performs what tasks. The PPM also works with the
50 Since I have concluded that counsel for the General Counsel’s pre-
trial meeting with Heibel was in conformance with Board procedures, I
do not find in necessary to reach the parties contentions concerning
Ohio’s Code of Professional Responsibility.
51 Heibel gave an affidavit to the Board on March 9, 2001, the Friday
before the unfair labor practice trial. Counsel for the General Counsel
and counsel for Local 38 were present. Heibel testified in the affidavit
that “I have, over the years, been aware of Chuck Clock’s dislike and
disdain for the IBEW Local 38.” However, Heibel admitted, on cross-
examination at the hearing, that he did not know what the word “dis-
dain” meant. Heibel also testified that there was some language in
quotes in the affidavit that should not have been in quotes in that he did
not have verbatim recall of the conversation. He testified that he read
the affidavit, but that he did not pay attention to the quotations. While I
have concluded that use of the word “disdain” in the affidavit was not
Heibel’s choice, I do not find that this was a sufficient basis to discredit
Heibel. In this regard, Clock admitted that he had a longstanding dis-
like of Local 38, and Heibel credibly testified at the hearing that on
more than one occasion he heard Clock voice that dislike. While I do
not condone an affidavit being written in language other than the affi-
ant’s, I have concluded that the affidavit accurately reported the wit-
ness’s views on the point in question.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824
tools. Clock testified that the difference between a PPM and a
project manager are the number of people they may run on a
job. According to Clock, a PPM would run jobs with 5 or more
employees with a maximum of 20, a project manager may have
one to seven employees, and a lead journeyman will run a job
with another journeyman, or an apprentice, or a helper. How-
ever, the testimony of Skiba and Andrews as well as work
schedules that were entered into evidence reveal that the PPMs
routinely run smaller crews than Clock’s testimony reflects.
Clock testified that the PPM has no involvement in hiring,
firing, or discipline, and cannot effectively recommend disci-
pline. Clock makes the final decision if an employee needs to
be disciplined. The field superintendent may sometimes rec-
ommend discipline. The PPM does not receive notice of disci-
plinary action pertaining to an employee. Clock testified that
the Company relies on PPM’s reports to discipline to the extent
that they get information that there is a problem. Clock testi-
fied that Sevchek and Al Conn were PPMs in 1994. Sevchek
filled out a foreman’s daily log for the date June 15, 1994, per-
taining to then Clock Electric employee Orin (Chip) Lemin. It
states in the log that “Chip Lemin was told to pick up the pace
as far as his productivity on the job.” This notation was subse-
quently summarized and typed into a document pertaining to
Lemin entitled “Disciplinary Time Line” under action taken
which cited a number of incidents leading to Lemin’s dis-
charge. Moreover, Conn signed off on a written warning to
Lemin dated July 8, 1994, which was issued to and signed by
Lemin in a document entitled “Employee Disciplinary Report.”
Clock testified that Conn issued the warning to Lemin without
Clock’s knowledge and in contravention of company policy in
that only Clock had the authority to issue such discipline.52
Heibel was called as a witness by the General Counsel. At
the time that Heibel left Clock Electric in November 2000, he
was field operations supervisor, a position he had held for
around 3 years.53 Heibel’s responsibilities as field operations
supervisor included, scheduling and evaluating all field person-
nel and working closely with Clock and the estimators on the
day-to-day business of running Clock Electric. Heibel testified
that, as field operations supervisor, the positions of PPM, pro-
ject manager, and lead journeymen reported directly to him and
he was their immediate supervisor. Heibel testified that they
had no authority to hire or fire, and they had no authority to
recommend discipline. If there was a problem with an em-

52 Lemin was an alleged discriminatee in the prior Board litigation
involving Clock Electric. See Clock Electric, Inc., 323 NLRB 1126
(1997), enfd. in pertinent part 162 F.3d 907 (6th Cir. 1998). There,
Clock Electric was found to have violated Sec. 8(a)(1) of the Act by
Conn’s photographing Lemin engaging in picketing activity. The ad-
ministrative law judge found that Conn was directed to photograph
Lemin by Clock Electric’s front office. Clock Electric argued as an
affirmative defense that it had instructed its foreman, of which Conn
was one, to photograph picketing in an effort to prove unlawful activ-
ity. Conn’s status as a statutory supervisor was not made clear in the
administrative law judges findings.
53 The title changed from field operations manager to field opera-
tions supervisor around October 2000. However, there was no change
in the job. Clock Electric concedes that Heibel was a statutory supervi-
sory while in the position of field operations supervisor.
ployee they had authority to send them back to the shop. The
employee would then see Clock or Heibel, at which point they
would decide what to do.
Sevchek worked for Clock over 12 years and he had been a
PPM since at least 1994. Sevchek described himself as a work-
ing foreman. He testified that in late 1999 through 2000, there
were about 11 people with the PPM title working at Clock
Electric, including Skiba. Sevchek testified that as a PPM he
receives a set of drawings or blue prints from an estimator.
Thereafter, the PPM coordinates the work with the other trades
and tries to complete the job on time and within budget.
Sevchek testified that he would be questioned if there were
delays on a project. Sevchek assigned all of the work on the
projects where he worked as the PPM. He made the assign-
ments based on the employees’ skills. Sevchek called the of-
fice to seek approval if an employee wanted to arrive an hour
late for work, but he independently approved employees com-
ing in 15 minutes late. As PPM, he sets the time for lunch
break, depending on the pace of the job.
Sevchek testified that he cannot hire, fire, or discipline, nor
does he make recommendations for discipline.54 If there is a
problem with someone on his crew, depending on the severity
of the problem, he tries to work it out with the employee on the
job. If it persists, he contacts his supervisor, informs them of
the situation, and then it is up to them to deal with it. Sevchek
will record problems on his foreman’s daily report, as he did
for Lemin in 1994. Sevchek turns the report into the office,
does not know who reads it, and with respect to Lemin did not
know if his notation resulted in Lemin being disciplined.
Sevchek testified that he would tell employees to get moving
and that would be the extent of his verbal reprimands. Sevchek
told a former helper to put in an application for employment
with Clock Electric, and he told Clock that the employee had
worked with him in the past and at that time was a good
worker. The employee was hired.
Sevchek, on occasion has attended job meetings with general
contractors where he is the sole representative of the Company
if the estimator cannot attend. However, what transpired at
these meetings was not established on the record. Sevchek
testified that he preferred working and letting the estimators go
to the meetings. Sevchek has a Home Depot card and will pur-
chase small supplies for a job on occasion. Sevchek testified
that, at the time of the hearing, he was the second most senior
PPM.
Andrews testified that he was given business cards with the
title PPM when he completed apprenticeship training around
June 1999 and at that time he started to run work for Clock
Electric. Andrews explained that he worked along with the
men and runs pipe, but that he also coordinated the job, ensured
that the work is completed on time, and ordered material. An-
drews gave employees their assignments and made sure they
were completed. He testified, on cross-examination, that he
gave assignments based on his experience and that he used
“independent judgment.” Andrews will hear about it if a pro-
ject comes in late. Andrews testified that more than one PPM
54 Skiba, Rohman, and Andrews also testified that as PPMs that they
could not hire, fire, or discipline employees.
CLOCK ELECTRIC, INC. 825
can be assigned to a job depending on staffing, but the field
supervisor will select only one of those individuals to run the
job and that person will have the job plan, give the assignments
and have the final word on how the work is performed. An-
drews testified that as a PPM he has had at most had four em-
ployees working under him. However, on occasion there will
be jobsites where one PPM is in charge of up to 20 employees.
Andrews testified that Sevchek had probably served as PPM
where there were up to 20 men at his jobsite. Andrews attrib-
uted this to Sevchek’s greater experience level. Andrews did
not attend meetings at the jobsite as part of his functions as a
PPM and he did not have use of a company credit card.
Skiba testified that he was a PPM when he worked for Clock
Electric. Skiba testified that, as a PPM, he worked with his
hands but he was in charge of getting the employees working
and of informing them which way to run the pipe. Skiba testi-
fied that Field Supervisor Heibel wanted Skiba to report to him
every day, but that he would talk to him about every other day,
which met with Heibel’s disapproval. As PPM, Skiba would
get to the job early, make sure that the generator was running,
and schedule the jobs that the other employees would do,
whether it was running pipe or pulling wire. After Skiba gave
the assignments to others, he would then perform one of the
assignments himself. Skiba testified that he had the same job
for his new employer and that he was a member of Local 38
and covered by Local 38’s collective-bargaining agreement.
He testified that he worked with other PPMs at Clock Electric
and that their duties were essentially the same as his. Skiba
testified that as PPM, that he would probably have at least four
people working under him, but that it could go up to as many
employees as was needed. Skiba testified that when work was
slow, he worked jobs for other PPMs where they would be in
charge of the site.
Conclusions as to Sevchek’s Supervisory Status
The General Counsel and Local 38 contend and the Respon-
dents deny that PPM Sevchek is a supervisor and agent of
Clock Electric within the meaning of Section 2(11) and (13) of
the Act. Sevchek, Andrews, and Rohman were listed as project
managers in the consolidated complaint and all three were al-
leged to be statutory supervisors and agents of Clock Electric.
At the outset of the hearing, counsel for the General Counsel
successfully amended the complaint to allege that Andrews and
Rohman were only agents but not supervisors of Clock Electric,
while continuing to maintain that Sevchek was both a supervi-
sor and agent. The testimony of these three individuals as well
as that of alleged discriminatee Skiba revealed that all four had
the job title of primary project manager (PPM) during the rele-
vant time period herein. Counsel for the General Counsel ar-
gued, in his posthearing brief that Sevchek is a supervisor be-
cause he uses independent judgment in the direction of employ-
ees’ work, and Clock Electric’s job description for PPM pro-
vides that “he ‘supervises assigned job site employees to com-
plete project.’” It is argued that the job description provides
that the PPM “effectively utilizes management skills in direct-
ing supervision of supervisors and crew along with coordinat-
ing crew activities within the scope of his duties.” It is asserted
that Sevchek also disciplines employees. Counsel for the Gen-
eral Counsel then goes on to state that “the record reveals that
Rohman and Andrews effectively direct the work of employees
in the exercise of their duties.” (GC Br. at 16.) However, coun-
sel for the General Counsel provided no explanation as to why
Rohman and Andrews and for that matter alleged discriminatee
Skiba, who as PPMs are the subject of the same job description
as Sevchek are not statutory supervisors.55
The burden of proving that an individual is a supervisor
within the meaning of the Act rests with the party asserting it.
NLRB v. Kentucky River Community Care, 532 U.S. 706
(2001). Section 2(11) of the NLRA defines “supervisor” as

any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.

In NLRB v. Kentucky River Community Care, supra at 1867, the
Court stated Section 2(11) of the Act:

sets forth a three-part test for determining supervisory status.
Employees are statutory supervisors if (1) they hold the au-
thority to engage in any 1 of the 12 listed supervisory func-
tions, (2) their “exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment,” and (3) their authority is held “In the interest of
the employer.” NLRB v. Health Care & Retirement Corp. of
America, 511 U.S. 571, 574, 114 S.Ct. 1778, 128 L.Ed.2d
586 (1994).

In Iron Workers Local 28 (Virginia Assn. of Contractors),
219 NLRB 957, 961 (1975), the Board approved the following
findings and conclusions concerning a group of working fore-
men in the construction industry:

The remainder of the evidence demonstrates that the foremen
act within a very limited sphere in giving instructions to em-
ployees, bounded by the blueprints and instructions from the
contractor or his supervisor. Any recommendations made by
the foreman with regard to discipline or discharge, are ad-
judged independently by the contractor. Therefore there is no
competent evidence to demonstrate that the vast bulk of the
foremen are anything more than pushers or strawbosses and
consequently not supervisors within the meaning of the Act
because they appear not to be able to effectively recommend
discharge or discipline and their authority appears to be rou-
tine and not requiring the use of independent judgment.
The general foreman, who is employed when there are
five or more crews of foremen and journeymen, is an addi-

55 Counsel for Local 38 also cites the PPM job description and as-
serts, in his posthearing brief, that Sevchek, Andrews, and Rohman are
all supervisors within the meaning of Sec. 2(11) of the Act and/or
agents within the meaning of Sec. 2(13) in that they responsibly direct,
assign, and discipline other employees. Counsel for Local 38 does not
explain why if all the PPMs are supervisors that alleged discriminatee
PPM Skiba is not.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
tional layer on top of the foremen, but at the same time, he
is employed only on the basis of a mathematical formula.
He would parcel out to the crews the jobs to be done in the
same way that a foreman would parcel out the jobs to his
crew. He reads the blueprints and, together with the fore-
man, sets up what is to be done. Although his is a layer
above the foreman, there is no evidence to suggest that he
has any more responsibility to effectively recommend ac-
tion or exercises independent judgment than do the fore-
men.
On the basis of the evidence received, I conclude that
it has not been demonstrated that the foremen and general
foremen as a class come within the intendment of the word
supervisor as defined by the Act. Therefore, since the
available evidence does not demonstrate that the foremen
and general foremen occupy a position other than a straw-
boss or pusher and does not conclusively show that they
are supervisors within the meaning of the Act, . . . .56

I have concluded that Sevchek was no more than a leadman
or strawboss. The General Counsel and Local 38 assert that he
had the ability and used “independent judgment” to responsibly
direct, assign, and discipline employees. However, General
Counsel witness Heibel credibly testified that he was the direct
supervisor for approximately a 3-year period of all of the Re-
spondent’s PPMs, project managers, and lead journeyman.
Heibel corroborated Clock and Sevchek’s assertion that the
PPMs had no authority to hire, or fire, or recommend disci-
pline. Rather, if there was a problem the PPM would send the
employee back to the shop and the matter would be investi-
gated. Similarly, Sevchek credibly testified that he would re-
cord an incident with employees on his foreman’s logs and turn
them into the office. He did not know what happened to the
report thereafter. While one of these reports showed up in 1994
in an employees disciplinary record, there was no showing that
Sevchek was aware that it was used in that capacity or other-
wise consulted about its usage.57

56 Similarly, in Electrical Workers Local 3 (Cablevision), 312 NLRB
487, 488–489 (1993), foreman Monopoli was found not to be a statu-
tory supervisor where he routed and dispatched work to 13 to 17 tech-
nicians, ensured that the work was completed, and assisted employees
in the field if they needed help. Monopoli spent 50 percent of his time
working with his hands with employees. He provided technical assis-
tance to less experienced employees, and if a problem with an em-
ployee arose he would document it and send it to the human resource
department which investigated the matter. See also George C. Foss
Co., 270 NLRB 232, 234–235 (1984), enfd. 752 F.2d 1407 (9th Cir.
1985); Ogden Allied Maintenance Corp., 306 NLRB 545, 546 (1992),
enfd. 998 F.2d 1004 (3d Cir. 1993); and Arlington Electric, 332 NLRB
845 (2000).
57 Based on Heibel’s testimony, I have also credited Clock’s testi-
mony that Conn’s written warning issued to that same employee in
1994 was an aberration. I also find it significant that the General Coun-
sel failed to produce any other record of discipline by the PPMs al-
though the hearing in this matter took place in 2001. Moreover, the
testimony of Sevchek and Andrews showed that the responsibilities
between PPMs could vary and there was no evidence that Sevchek ever
disciplined or recommended discipline of any employee other than
reporting to management what transpired at the jobsite.
I also conclude that Sevchek, as a PPM, did not use “inde-
pendent judgment” in the assignment or direction of work at the
jobsites. Clock’s testimony revealed that the work was repeti-
tive in nature in that there were conduit, wire pulling, panel
setting, and light hanging crews. Skiba’s testimony revealed
that the employees’ assignments consisted of running pipe or
pulling wire. Sevchek testified that he would receive blue
prints or drawings from estimators and then give employees
their assignments. While he testified that he considered an
employee’s skills in making assignments, Clock’s testimony
revealed that the employees below the PPM were classified as
project managers, journeymen, apprentice, and helper. Since
the work is repetitive and the employees are classified as to
skill level, I conclude that the assignments and direction that
the PPMs gave was routine in nature, and did not require the
use of independent judgment as required to establish supervi-
sory status. Skiba testified that all PPM’s work was essentially
the same, and that he gave his crew their assignments in the
morning, and that he also took one of those assignments and
then worked with his hands. While Sevchek was not specifi-
cally asked, I have concluded, based on Skiba’s testimony, that
Sevchek likewise spent the majority of his time performing
hands on electrical work. Moreover, the credited testimony
revealed that PPMs rotated to work as regular electricians under
other PPMs depending on who was designated the PPM in
charge of the jobsite. Clock Electric submitted into evidence
work schedules for November through December 1999, show-
ing that while Sevchek did serve as a PPM in charge of up to
five employees at a jobsite during this period, he spent most of
his time working as electrician for other PPMs or running
smaller projects with one to two electricians. Thus, I have con-
cluded that the General Counsel has failed to establish that
Sevchek was a statutory supervisor within the meaning of Sec-
tion 2(11) of the Act, and that the record does not warrant a
finding that either Andrews or Rohman were statutory supervi-
sors as contended by Local 38.58 However, for the reasons set
forth below, I have concluded that Sevchek, Andrews, and
Rohman acted as agents for Clock Electric, within the meaning
of Section 2(13) of the Act, in its efforts to combat Local 38
and recognize and bargain with the CIU.
J. Complaint Allegations Relating to Clock Electric’s
Domination, Assistance, and Recognition of the CIU
In Machinists Local 35 v. NLRB, 311 U.S. 72, 80 (1940), the
Court concluded that there was substantial evidence that the
petitioning union had been assisted by unfair labor practices of
the employer and therefore the Board was justified in refusing
to give effect to the petitioner’s closed-shop contract. The
Court held that:

To be sure, it does not appear that the employer insti-
gated the introduction of petitioner into the plant. But the
58 I have considered the General Counsel and Local 38’s reliance on
the PPM’s job description as part of their contention that Sevchek was a
statutory supervisor. However, job descriptions do not necessarily
establish that an employee is a statutory supervisor. See Operating
Engineers Local 3, 324 NLRB 1183, 1186 (1997); and NLRB v. Secu-
rity Guard Services, 384 F.2d 143, 149 (5th Cir. 1967).
CLOCK ELECTRIC, INC. 827
Board was wholly justified in finding that the employer
‘assisted’ it in its organizational drive. Silent approval of
or acquiescence in that drive for membership and close
surveillance of the competitor; the intimations of the em-
ployer’s choice made by superiors; the fact that the em-
ployee-solicitors had been closely identified with the com-
pany union until their quick shift to petitioner; the rank
and position of those employee-solicitors; the ready accep-
tance of petitioner’s contract and the contemporaneous re-
jection of the contract tendered by U.A.W.; the employer’s
known prejudice against the U.A.W., were all proper ele-
ments for it to take into consideration in weighing the evi-
dence and drawing its inferences. To say that the Board
must disregard what preceded and what followed the
membership drive would be to require it to shut its eyes to
potent imponderables permeating this entire record. The
detection and appraisal of such imponderables are indeed
one of the essential functions of an expert administrative
agency.
Petitioner attacks the Board’s conclusion that its mem-
bership drive was headed by “supervisory” employees—
Fouts, Shock, Dininger and Bolander. According to peti-
tioner these men were not foremen, let alone supervisors
entrusted with executive or directorial functions, but
merely “lead men” who by reason of long experience were
skilled in handling new jobs and hence directed the set-up
of the work. Petitioner’s argument is that since these men
were not supervisory their acts of solicitation were not co-
ercive and not attributable to the employer. The employer,
however, may be held to have assisted the formation of a
union even though the acts of the so-called agents were
not expressly authorized or might not be attributable to
him on strict application of the rules of respondent supe-
rior. . . . The existence of that interference must be deter-
mined by careful scrutiny of all the factors, often subtle,
which restrain the employees’ choice and for which the
employer may fairly be said to be responsible. Thus where
the employees would have just cause to believe that solici-
tors professedly for a labor organization were acting for
and on behalf of the management, the Board would be jus-
tified in concluding that they did not have the complete
and unhampered freedom of choice which the Act con-
templates. Here there was ample evidence to support that
inference. As we have said, Fouts, Shock, Dininger and
Bolander all had men working under them. To be sure,
they were not high in the factory hierarchy and apparently
did not have the power to hire or to fire. But they did exer-
cise general authority over the employees and were in a
strategic position to translate to their subordinates the
policies and desires of the management. It is clear that
they did exactly that.

In U.S. Service Industries, 319 NLRB 231 fn. 2 (1995), enfd.
107 F.3d 923 (D.C. Cir. 1997), the Board held it was unneces-
sary to determine the Sec. 2(11) supervisory status of certain
disputed individuals because the respondent placed them in
positions where employees could “reasonably believe that they
spoke on behalf of management.” The Board went on to state
that, “[t]herefore, we conclude that the statements and conduct
of the disputed individuals are imputable to the Respondent.”
See also Southern Bag Corp., 315 NLRB 725 (1994); Broyhill
Co., 210 NLRB 288, 294 (1974), enfd. 514 F.2d 655 (6th Cir.
1975); and Aircraft Plating, Co., 213 NLRB 664 (1974).
In Farmers Energy Corp., 266 NLRB 722 (1983), enfd. 730
F.2d 1098 (7th Cir. 1984), the Board held that, “[i]n assessing
the impact of a respondent’s assistance to a union, the Board
examines the totality of circumstance to determine whether the
respondent’s conduct tainted the union’s majority status.” In
Farmer’s Energy Corp., id, the Board found that the respondent
employer had unlawfully assisted and recognized the CIU in
violation of Section 8(a)(1) and (2) of the Act where the em-
ployer had conceived of the idea of the employees organizing,
selected an employee to guide the campaign, made its facilities
available to employees to discuss organizing, and directed a
supervisor to ensure that employees attended organizing meet-
ings, interjected itself in the selection of employees bargaining
representatives, and engaged in an intense campaign of threats
to guarantee that employees approved the agreement reached
by the bargainers. The Board also found that the respondent
employer violated Section 8(a)(2) and (3) of the Act by enter-
ing a collective-bargaining agreement with the CIU containing
a union-security clause. In Price Crusher Food Warehouse,
249 NLRB 433, 439 (1980), it was held that the respondent
employer violated Section 8(a)(1)(2) and (3) of the Act by
granting the CIU access to its premises for organizational pur-
poses while denying such access to a rival union, and by recog-
nizing and entering into a collective-bargaining agreement with
a union-security clause with the CIU at a time when the CIU
did not represent an uncoerced majority of its employees. The
CIU was found to have violated Section 8(b)(1)(A) and (2) of
the Act by accepting such recognition and entering into the
contract. In Midwestern Mining, 277 NLRB 221 fn. 1 (1985),
the Board found a message from the employer’s top manage-
ment that it favored the CIU and would reward employees who
supported that union because it would not be “that much of an
expense” in sharp contrast with the employer’s “outspoken and
unlawful efforts to undermine employee support for the
UMW,” and that this conduct constituted unlawful assistance
and support of a union and violated Section 8(a)(2) and (1) of
the Act.
In the instant case, Lufkin’s credited testimony reveals that,
around the time that the Local 38 organizing drive started
which was around October or November 1999, Clock told
Lufkin that he and Dunfee had made plans for an independent
union to quickly come in so that Local 38 could no longer
“fuck” with him. Similarly, sometime before the end of De-
cember 1999, Clock told Heibel that he had talked to someone
from another contractor about an independent union. During a
second conversation, around this same time period, Clock told
Heibel that he was going to go with the CIU to keep Local 38
out.
On November 3, 1999, Local 38 faxed a letter to Clock stat-
ing that it had obtained a card majority from Clock’s employ-
ees, requested a card check by an independent party, and re-
quested recognition. By letter dated November 5, 1999, Clock
declined Local 38’s request. On November 6, 1999, a form
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
letter was typed for the signature of Clock employees to rescind
their Local 38 authorization cards. On about that date, Clock
held a mandatory staff meeting, where he introduced Coughlin
who spoke out against Local 38, including informing employ-
ees that if they joined Local 38 they would work a couple of
weeks and then be laid off. At the end of the meeting, Clock
told employees to see PPM Rohman if they wanted to rescind
their Local 38 cards. Employees Skiba and Lufkin both took
Clock up on his suggestion and contacted Rohman to revoke
their Local 38 cards. PPM Sevchek also signed the letter re-
scinding his Local 38 card. I find it more than coincidental that
Sevchek had been given his largest pay raise to date shortly
before the November 6 letter was distributed. While this con-
duct, all occurred outside of the 10(b) period of the filing of the
current unfair labor practice charges, I view it as background
evidence and relevant to the allegations in the consolidated
complaint. See Wilmington Fabricators, Inc, 332 NLRB 57, 58
fn. 6 (2000), and Kaumograph Corp., 316 NLRB 793, 794
(1995).
As set forth above, I have found that in mid- to late-January
Clock violated Section 8(a)(1) of the Act by interrogating Skiba
about his and Lufkin’s activities on behalf of Local 38 and
soliciting grievances from Skiba, and that Clock violated Sec-
tion 8(a)(3) and (1) of the Act by promising and granting Skiba
and Lufkin pay raises in order to discourage their activities on
behalf of Local 38. Around that same time period, Andrews,
Clock’s son-in-law, acting as an agent for Clock Electric vio-
lated Section 8(a)(1) of the Act by interrogating Lufkin about
his and other employees’ activities on behalf of Local 38 and
creating the impression that employees’ activities on behalf of
Local 38 were under surveillance. I have concluded that during
this same time period that Clock interrogated Lufkin as to his
activities on behalf of Local 38, and informed Lufkin that his
activities on behalf of Local 38 were futile by stating that if
they brought in this other union quickly, Local 38 could no
longer “fuck” with Clock.
On February 3, PPMs Sevchek and Rohman came to the
Corsa jobsite. Skiba was the PPM in charge of four or five
employees at the site, including Lufkin. None of the witnesses
to this event testified that they looked at a watch as to the exact
time of Sevchek and Rohman’s arrival at the site or the length
of their stay. However, there is no dispute that they arrived at
the jobsite after lunch and that the employees were working
when they arrived. Skiba’s credited testimony reveals that
Sevchek and Rohman told him that they took the day off be-
cause Clock had asked them to go around to talk about this
other union. Skiba testified that he allowed them to talk to the
employees because they informed him that Clock had sent
them. He credibly testified Sevchek stated that employees
would not have to pay union dues because Clock would make it
up with a pay raise. Sevchek and Rohman asked the employees
to sign a CIU card, and Skiba signed one at that time. I have
concluded that PPMs Sevchek and Rohman were acting as
agents of Clock Electric when they solicited employees to sign
CIU cards on February 3 and 4. They were clearly aligned with
Clock’s known anti-Local 38 stance, and they informed em-
ployees at the Corsa site that they were acting at Clock’s be-
hest. As PPMs they had served as conduits for Clock Electric
to relay orders to the men. While Skiba testified that he only
thought that Rohman was a lead electrician at the time, under
the facts here I do not find this determinative as Clock had
previously announced to employees at a company meeting that
Rohman was distributing letters for employees to rescind their
Local 38 cards. Clock had placed Sevchek and Rohman in
positions where employees could reasonably believe that they
spoke on behalf of management. Accordingly, I have con-
cluded that Clock Electric violated Section 8(a)(1) and (2) of
the Act by its agents Sevchek and Rohman soliciting authoriza-
tion cards on behalf of the CIU and by engaging in this activity
during working time.59 See Famous Castings Corp., 301
NLRB 404, 407 (1991), and MGR Equipment Corp., 272
NLRB 353 (1984). I have also concluded that Sevchek violated
Section 8(a)(1) and (2) of the Act when he told employees that
Clock Electric would pay their CIU dues by granting a pay
increase. See Baby Watson Cheesecake, 309 NLRB 417 (1992),
enfd. 148 LRRM 2896 (2d Cir. 1993).
By letter dated February 6, Seiberlich sent Clock some 30
authorization cards obtained by Sevchek and Rohman. Based
on these cards Seiberlich proclaimed majority status and re-
quested recognition. By fax dated February 8, Clock Electric
granted recognition to the CIU and stated that that union would
be contacted shortly to begin negotiations. I have concluded
that since Sevchek and Rohman served as agents of Clock Elec-
tric in the solicitation of the CIU’s cards that the cards were
tainted and that they may not be used to establish that union’s
majority status. See Alton Belle Casino, 314 NLRB 611, 628
(1994). While Clock Electric is a construction industry em-
ployer and could voluntarily recognize a union under Section
8(f) of the Act, the Board held in Bell Energy Management
Corp, 291 NLRB 168 fn. 8 (1988), that even if the respondent
there was a construction industry employer, the Board would
still find that its agreement with the union violated Section
8(a)(2) because Section 8(f) of the Act’s terms prohibit the
execution of an agreement that is the result of unlawful assis-
tance. See Oilfield Maintenance Co., 142 NLRB 1384, 1385–
1386 (1963); and Bear Creek Construction Co., 135 NLRB
1285, 1286 (1962).
On February 15, Seiberlich met with Clock Electric employ-
ees, at which time he appointed Sevchek and Rohman as mem-
bers of the CIU’s negotiating committee, and Andrews, Clock’s
son-in-law, was elected as a member of the CIU’s negotiating
committee. Seiberlich’s testimony revealed between 42 to 45
employees attended this meeting including about 15 to 20 vocal
Local 38 supporters. The meeting, according to Seiberlich, was
held to obtain contract proposals from the employees. How-
ever, Rohman testified that some of the men were making ri-
diculous demands by requesting Local 38 scale for wages, and
that Clock Electric pay 100 percent of insurance benefits.

59 I have credited Skiba that he allowed Sevchek and Rohman to
conduct the meeting with employees because they informed him that
they came at Clock’s behest. I have concluded that employees were
working and that Skiba would not have called a break at that time ab-
sent Sevchek and Rohman’s representations. I have concluded, as
Skiba testified, that the employees were paid for time spent during the
meeting, and that the meeting lasted longer than 20 minutes which
would have been the time allotted for the employees’ afternoon break.
CLOCK ELECTRIC, INC. 829
Seiberlich had scheduled a negotiation session with Clock Elec-
tric on February 16, and had scheduled a followup meeting with
the Clock Electric employees on the evening of February 16 in
the event that the CIU and Clock Electric reached agreement on
the terms of a contract. Seiberlich was the lead negotiator for
the CIU committee which met with Clock Electric’s committee
on February 16. However, Seiberlich testified that, at the time,
he conducted the negotiations he did not know the employees’
existing wage rates or their benefits. Nevertheless, Seiberlich
testified that they were able to reach a collective-bargaining
agreement with Clock Electric on February 16, which he pre-
sented to the employees that evening. Seiberlich testified that
negotiations with Clock Electric lasted from 9 a.m. to 5 p.m.
However, Clock testified that the meeting only lasted a couple
of hours.60 Seiberlich met with the employees on the evening
of February 16, whereupon a vote was taken by the employees
on the proposed contract. Lufkin’s credited testimony revealed
that Seiberlich, Rohman, Sevchek, and Andrews were at the
head table during the meeting, and that two people were stand-
ing near the podium where the employees voted. However, the
contract was still voted down 27 to 24.
Following the vote, Seiberlich returned to Illinois and he
gave authority to the CIU committee of Sevchek, Rohman,
Andrews, and an employee named Gibson to continue negotiat-
ing with Clock Electric on the CIU’s behalf. Seiberlich testi-
fied that he informed the CIU committee that the contract pro-
posals were to be whatever the men wanted. Sevchek, one of
the lead negotiators, testified that the CIU committee knew that
they had to make some “minor adjustments” to the contract in
that they could not have the employees vote twice on the same
contract.
I have concluded, based on the forgoing, that negotiations
between the CIU and Clock Electric for a collective-bargaining
agreement were not arms length. I have also concluded that
Clock enlisted PPMs Andrews, Sevchek, and Rohman to aid
Clock Electric in its campaign against Local 38, and in support
of the CIU, that they served as agents for Clock Electric and
that Clock Electric was responsible for their conduct. See U.S.
Service Industries, 319 NLRB 231 fn. 2 (1995), enfd. 107 F.3d
923 (D.C. Cir. 1997).61 I have concluded that by Andrews,
Sevchek, and Rohman’s attendance at the CIU meetings, their
status as CIU representatives, and that by their serving on the
CIU negotiating committee that Clock Electric dominated and

60 I have credited Clock’s testimony as to the length of the meeting
as an admission by a party, over Seiberlich’s self-serving testimony that
the meeting was of longer duration.
61 There was direct testimony here that Clock played a role and
enlisted the aid of Sevchek, Rohman, and Andrews in defeating Local
38 and bringing the CIU in. Clock informed both Lufkin and Heibel
that it was his intent to bring in an independent union as a means of
defeating Local 38, and he specifically named the CIU to Heibel. He
informed employees in November 1999 to see Rohman if they wanted
to withdraw their Local 38 cards, and Sevchek and Rohman informed
employees that they were soliciting employees’ signatures on CIU
cards on behalf of Clock. Finally, Andrews and Clock engaged in a
series of conversations with Lufkin concerning Local 38, the timing
and content of which demonstrate that Andrews was acting in coopera-
tion with and at the behest of Clock in interrogating Lufkin about his
activities on behalf of Local 38.
assisted the CIU in violation of Section 8(a)(1) and (2) of the
Act. Skiba did not attend any of the CIU meetings. He credi-
bly testified that, after the second or third CIU meeting, Clock
told Skiba that he was not paying Skiba all of this money not to
show up at the meetings. I have concluded that Clock violated
Section 8(a)(1) and (2) of the Act by making this remark to
Skiba.
In sum, I have concluded that Clock Electric provided
unlawful assistance to the CIU in violation of Section 8(a)(1)
and (2) of the Act by having its agents, Rohman and Sevchek,
solicit its employees’ signatures on CIU authorization cards, by
allowing Rohman and Sevchek to solicit employee signatures
on CIU cards at its jobsites during paid working time, by its
agents promising to compensate employees for dues paid to the
CIU in order to convince them to sign CIU cards, and by in-
structing an employee to attend CIU meetings; that Clock Elec-
tric unlawfully dominated and assisted the CIU by orchestrating
a campaign where its agents, Rohman, Sevchek, and Andrews,
attended CIU meetings and attended negotiation sessions as
part of the CIU’s negotiating committee and that by such con-
duct Clock Electric violated Section 8(a)(1) and (2) of the Act.
I have also concluded that Clock Electric violated Section
8(a)(1), (2), and (3) of the Act by recognizing the CIU and
entering into a collective-bargaining agreement with the CIU
containing a union-security clause at a time when the CIU did
not represent an uncoerced majority of its employees.62 I have
concluded that the CIU violated Section 8(b)(1)(A) of the Act
by receiving and accepting such assistance from Clock Electric
and that it violated Section 8(b)(1)(A) and (2) of the Act by
accepting recognition and entering into a collective-bargaining
agreement with Clock Electric containing a union-security
62 Clock Electric asserts in par. 14 in its answer to the consolidated
complaint that “[m]any allegations of the Consolidated Complaint are
untimely and not the subject of a timely charge.” Counsel for Clock
Electric never identified which allegations of the consolidated com-
plaint that Clock Electric considered to be untimely, never gave a ra-
tionale for this assertion, and did not address this contention in his
posthearing brief. When counsel for the General Counsel moved to
amend the complaint at the hearing to allege that the granting of wage
increases was violative of Sec. 8(a)(3) of the Act, in addition to being
violative of Sec. 8(a)(1) of the Act as previously alleged in the com-
plaint, counsel for Clock Electric objected to the timeliness of the
amendment, but did not contend that the proposed amendment was not
the subject of a timely filed charge. Counsel for Clock Electric was
given the opportunity to make an opening statement at the hearing, but
declined. While counsel for the CIU asked to make a motion when the
General Counsel rested and was allowed to do so, counsel for Clock
Electric never asked to make any remarks at that time. As a result, the
timeliness of the complaint allegations was not litigated before me and
was not briefed to me by any of the parties. Under the circumstances
here, noting that Clock Electric never identified which allegations of
the complaint it alleged to be untimely, its failure to litigate the issue at
the hearing, or brief the matter to me, I have concluded that it has not
raised the Act’s 10(b) limitations period in a timely fashion as an af-
firmative defense and such it has been waived. See Public Service Co.,
312 NLRB 459, 461 (1993), and DTR Industries, 311 NLRB 833 fn. 1
(1993), enfd. denied on other grounds 39 F.3d 106 (6th Cir. 1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
clause at the time when it did not represent an uncoerced major-
ity of Clock Electric’s employees.63
The Remedy
Having found that Clock Electric has engaged in unfair labor
practices within the meaning of Section 8(a)(1), (2), and (3) of
the Act, and that the CIU has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the Act, I
recommend that they be ordered to cease and desist therefrom,
and take certain affirmative action designed to effectuate the
policies of the Act. It is recommended that Clock Electric be
ordered to withdraw and withhold recognition from the CIU as
the exclusive bargaining representative of the employees em-
ployed by Clock Electric in the bargaining set forth in their
collective-bargaining agreement effective from May 1, 2000,
through April 30, 2003, and to cease and desist from giving any
force or effect to any collective-bargaining agreement covering
those employees, or to any extension, renewal, or modification
thereof, unless and until the CIU is certified by the Board as the
collective-bargaining representative of the employees. Nothing
herein shall be construed, however, to require the Company to
vary any wage or other substantive features of its relationship
with the employees which have been established in the per-
formance of the contract.64 It is further recommended that the
Union be ordered to cease and desist from acting as the collec-
tive-bargaining representative of the employees in the above-
described collective-bargaining unit, and to cease and desist
from giving any force or effect to any collective-bargaining
agreement covering those employees, or to any extension, re-
newal, or modification thereof, unless and until the CIU is cer-
tified by the Board as the collective-bargaining representative
of those employees. It is further recommended that Clock Elec-
tric and the CIU be ordered, jointly and severally, to reimburse
all present and former employees employed by Clock Electric
who joined the CIU for all initiation fees, dues, and other mon-
eys which may have been exacted from them together with
interest thereon as set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. Respondent Clock Electric, Inc. (Clock Electric) is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 38 and the CIU are labor organizations within the
meaning of Section 2(5) of the Act.
3. Clock Electric violated Section 8(a)(1) of the Act by:
(a) Coercively interrogating employees about their activities
and the activities of other employees on behalf of Local 38.

63 Par. 15(A) of the consolidated complaint alleges, in part, that since
December 27, 1999, the CIU unlawfully received assistance from
Clock Electric, “which encouraged employees to retrieve their union
authorization cards they signed on behalf of the Charging Party Union.”
However, no evidence was presented by the General Counsel that the
alleged conduct occurred during the stated time period. Accordingly,
the portion of par. 15(A) of the consolidated complaint relating to the
retrieval of Local 38 authorization cards is dismissed.
64 See Sav-On Drugs, Inc., 267 NLRB 639, 646 (1983).
(b) Soliciting grievances from employees in order to dis-
courage them from supporting Local 38.
(c) Promising employees wage increases in order to discour-
age them from supporting Local 38.
(d) Creating the impression among employees that their ac-
tivities on behalf of Local 38 were under surveillance.
(e) Creating the impression among employees that their ac-
tivities on behalf of Local 38 were futile because it was Clock
Electric’s intent to bring in another union.
(f) Coercively interrogating employees as to the reasons for
their activities on behalf of Local 38, and soliciting employees
to quit by telling them to go work for the Union.
4. Clock Electric violated Section 8(a)(3) and (1) of the Act
by granting employees wage increases in order to discourage
their activities on behalf of Local 38.
5. Clock Electric violated Section 8(a)(2) and (1) of the Act
by:
(a) Assisting the CIU by instructing its employees to attend
CIU meetings.
(b) Assisting the CIU by having its agents solicit employees
to sign authorization cards on behalf of the CIU and by those
agents engaging this activity during working time.
(c) Assisting the CIU by promising employees to compen-
sate them for the cost of union dues for that Union.
(d) Dominating and assisting the CIU by having its agents at-
tend meetings conducted by the CIU, and serve as representa-
tives of the CIU during collective-bargaining negotiations with
Clock Electric and as stewards for the CIU.
(e) Recognizing the CIU and entering into a collective-
bargaining agreement with the CIU covering the bargaining
unit of all of Clock Electric’s electrical classification employ-
ees, truck drivers, and warehouse personnel at a time when the
CIU did not represent an uncoerced majority of those employ-
ees.
6. Clock Electric violated Section 8(a)(1), (2), and (3) of the
Act by entering a collective-bargaining agreement with the CIU
covering the employees in the above described unit which con-
tained a union-security clause at such time when the CIU did
not represent an uncoerced majority of those employees.
7. By receiving assistance from Clock Electric and accept-
ing recognition from Clock Electric at a time when the CIU did
not represent an uncoerced majority of Clock Electric’s em-
ployees in the above described bargaining unit, the CIU vio-
lated Section 8(b)(1)(A) of the Act.
8. By entering a collective-bargaining agreement with Clock
Electric covering the employees in the above described unit
which contained a union-security clause at a time when the CIU
did not represent an uncoerced majority of those employees the
CIU has violated Section 8(b)(1)(A) and (2) of the Act.
9. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
[Recommended Order omitted from publication.]