D & E Electric, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 2000

331 N.L.R.B. 1037 (N.L.R.B. 2000)

D & E ELECTRIC 1037
D & E Electric, Inc. and Local 1, International Broth-
erhood of Electrical Workers, AFL–CIO. Cases
14–CA–25491 and 14–RC–12015
August 15, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On September 22, 1999, Administrative Law Judge
Jerry M. Hermele issued the attached decision. The
General Counsel and the Petitioner filed exceptions and
supporting briefs, and the Respondent filed cross-
exceptions and an answering and supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted, the complaint is dismissed, and the
objection in Case 14–RC–12015 is overruled and the
case is remanded to the Regional Director for Region 14
to open and count the ballots of James Lysell, John
Strasburger, and Thomas Paluczak. The Regional Direc-
tor shall then serve on the parties a revised tally of bal-
lots and issue the appropriate certification.

Lynette K. Zuch, Esq., for the General Counsel.
Randall Thompson and Terry L. Potter, Esqs. (Blackwell Sand-
ers Peper Martin LLP), of St. Louis, Missouri, for the Re-
spondent.

1 The General Counsel and the Petitioner have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Drywall 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. Moreover, in adopt-
ing the judge, we note that on March 18, 1999, the Union filed objec-
tions to the election, challenging the ballots of three employees on the
basis that the Respondent hired them as a part of a unit packing scheme.
In adopting the judge’s dismissal of the complaint and the recom-
mendation to overrule the Union’s objections, Chairman Truesdale
does not rely on the judge’s finding that the Respondent’s owner, Ed-
ward Hagelstein’s, remark that he “didn’t think [the employees] needed
the union” is not evidence of union animus because it was protected
speech under Sec. 8(c) of the Act. The Board has held that an em-
ployer’s antiunion comments, while themselves protected speech, may
nevertheless establish animus toward its employees’ union activities.
See Ross Stores, 329 NLRB 573 (1999); Lampi LLC, 327 NLRB 222
(1998). Although the Board has taken a contrary view in the cases cited
by the Chairman, Members Hurtgen and Brame do not rely on remarks
protected by Sec. 8(c) as evidence of animus. See their dissenting posi-
tions in Ross Stores, supra, fn. 17, and Lampi, supra at 223 fn. 7. In any
event, Members Hurtgen and Brame note that this difference of posi-
tion does not affect the adoption of the judge’s dismissal of the com-
plaint in this case.
Stacey A. Meyers, Esq. (Schuchat, Cook & Werner), of St.
Louis, Missouri, for the Charging Party.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. On March
12, 1999, the 14 employees of the Respondent, D & E Electric,
Inc. (D & E), voted 6 to 5 in favor of being represented by Lo-
cal 1, International Brotherhood of Electrical Workers, AFL–
CIO (the Union). However, on March 18, 1999, the Union
challenged the ballots of three employees—James Lysell, John
Strasburger, and Thomas Paluczak—who were hired in early
1999, claiming that the Respondent “engaged in unit packing”
in order to defeat the Union. Then on May 18, 1999, the Gen-
eral Counsel issued a complaint alleging that D & E violated
Section 8(a)(1) of the National Labor Relations Act by packing
the election unit.1 And on May 21 the Regional Director for
Region 14 of the National Labor Relations Board issued a re-
port on the challenged ballots, consolidating that case with the
General Counsel’s complaint. Finally, on June 30, 1999, an
amended complaint was issued, alleging that a strike against the
Respondent was due to its unfair labor practice of unit packing.
A 2-day trial was held on July 8 and 9, 1999, in St. Louis,
Missouri, during which the General Counsel called 12 wit-
nesses and the Respondent called three witnesses. All parties
then filed briefs on August 12, 1999.2
II. FINDINGS OF FACT
D & E is an electrical contractor located in suburban St.
Louis (Overland, Missouri). Its two owners, Edward Kirk
Hagelstein, Jr. and David Westrich, founded the Company in
1995. Annually, the Company provides over $50,000 in ser-
vices to its customers (GC Exh. 1(f); Tr. 18, 101). In 1996,
Hagelstein and Westrich started hiring employees via referrals
from other people and from newspaper ads (Tr. 20, 35, 46, 88,
446). In 1996, D & E hired eight employees, in 1997 it em-
ployed 15 men, at various times throughout the year, and in
1998 it employed 12 men at various times. In August 1998
newspaper ads produced two new employees. While the ten-
ures of some employees were of short durations, all employees
from 1996 to 1998 were fulltime, averaging approximately 40
hours a week (GC Exhs. 2–4; Tr. 350–352, 380–382). Al-
though Hagelstein characterized one of these employees, Jason
Grizzle, as part-time summer help in 1996 (Tr. 36), Grizzle in
fact averaged 38 hours a week from June to August 1996 (GC
Exh. 2, pp. 9–10). Three of the employees hired in 1996 had no
electrical experience, four of the employees hired in 1997 had
no such experience, and one in 1998 was likewise inexperi-
enced (Tr. 116, 444–446). Indeed, according to Hagelstein, it is
difficult to find experienced employees in today’s labor market
(Tr. 454). Moreover, because of the Company’s manpower
needs, some employees would start immediately—i.e., the same
day of their interview (Tr. 116, 461). Also, the Company has
hired multiple employees at the same time before, other than at
the initial hiring of employees in 1996. For example, in March
1 The Union’s other objections to the election were withdrawn leav-
ing only the unit packing objection.
2 On July 13, 1999, all parties filed a joint motion to receive General
Counsel Exhibit 8, a voluminous exhibit regarding employees’ time-
cards. This exhibit needed to be paginated after the trial. The unop-
posed motion will be granted.
331 NLRB No. 136
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1038
and April 1997, three employees were hired within a few weeks
(GC Exh. 3, pp. 21–25; Tr. 456).
McBride & Son Homes, Inc. (McBride), a residential home
builder in the St. Louis area, was D & E’s biggest customer,
accounting for 60 percent to 70 percent of their business (Tr.
214, 467). December 1998 was a very busy month for D & E
as the housing market was strong and McBride was finishing
up many homes at the end of the year. In that connection, D &
E employees could work an hour or two of overtime on Mon-
day through Friday, without advance approval. Also, employ-
ees that wanted to often worked Saturdays (Tr. 106, 220, 363,
398, 418). And they did so on many Saturdays from July to
December 1998 (GC Exh. 7).
James Lysell was a mechanic at Al’s Service, where D & E
had its vehicles repaired. Sometime in 1998, James Lysell’s
father, who knew Hagelstein and/or Westrich, asked about a job
for his son at D & E. Lysell’s father was told that there was no
opening. Then in December 1998 Lysell talked with Hagel-
stein and/or Westrich directly and was told that there might be
an opening soon (Tr. 57–65, 103, 105, 109, 146–152). Thomas
Paluczak was a carpenter, whose father also talked with D &
E’s owners about a job change for his son, twice in 1998 (Tr.
72-73, 120–123, 173–176).
According to McBride’s president, John Eilermann, Big
Bend Crossings has been one of the most successful of
McBride’s projects (Tr. 214, 216). McBride’s official, John
Seulthaus, told Hagelstein and Westrich on approximately
January 20, 1999, that he wanted D & E to perform the electri-
cal work on these new homes. To that end, Hagelstein was
shown McBride’s planned 1999 construction schedule for its
various projects, including Big Bend (R. Exh. 2, p. 1; Tr. 67,
221–223, 230, 235, 477, 481–482, 485). According to Hagel-
stein, this was the first time he learned about the magnitude of
the project (Tr. 448). Westrich told Eilermann that D & E
could “man the job” (Tr. 265). Eilermann estimated that D & E
would do 50 percent more work for McBride in 1999 compared
with 1998 (Tr. 227). But the McBride schedule also indicated
that five of its 12 projects for 1999 would be completed during
the first half of the year (R. Exh. 2).
On January 25, 1999, Greg Booth, the Union’s organizer and
business agent, visited D & E’s office to meet with the owners.
He told them that a majority of the Company’s employees
wanted to be represented by the Union and he asked them to
recognize the Union voluntarily. Hagelstein and Westrich said
they would think about it. Meanwhile, Booth immediately
went to the local regional office of the National Labor Rela-
tions Board and filed a petition. An election was later set for
March 12, 1999, in which all employees on board by February
6 could vote (GC Exh. 1(a); Tr. 278–283).
D & E’s workload slowed down in January 1999 from De-
cember 1998’s hectic pace (Tr. 313–314, 354, 396, 431). But
Hagelstein knew that two McBride projects, Winghaven and
Big Bend Crossings, were going to get busy soon. And D &
E’s other significant client, Riley Homes, had work scheduled
later in the year. So, he decided to hire more employees (Tr.
446–447). Westrich called Lysell in late January 1999 and
asked if he was still interested in a job. Lysell came to the of-
fice on Saturday, January 30 and said he wanted to work part-
time to see if he liked it, inasmuch as he had no electrical ex-
perience. Lysell worked for 5 Saturdays: January 30, February
6, 13, 20, and 27, 1999, for 8 hours a day (GC Exh. 5, p. 15;
GC Exh. 8, pp. 159–168; Tr. 68, 70, 74, 113–115, 142, 155–
156). Westrich also called Paluczak around January 21–25,
1999, to inquire whether he was still interested in working.
Paluczak said he also wanted to try it out. To that end, Paluc-
zak came in on February 6, filled out a job application, and
started that day, working 5 Saturdays: February 6, 13, 20, and
27; and March 20 (GC Exh. 5, p. 19; GC Exh. 8, pp. 195–; Tr.
74, 124, 130–131). Finally, Glen Hackmeister, a friend of
Hagelstein and Westrich, referred John Strasburger to D & E.
Strasburger was unemployed and had a background in con-
struction, and heating and air conditioning work. Strasburger
called Westrich and interviewed on January 29. He started
working on Friday, February 5 for 4 hours, and for 5 hours on
Saturday, February 6. Strasburger was off from Monday, Feb-
ruary 8 to Thursday, February 11. He remains employed with
D & E (GC Exh. 5, pp. 29–30; GC Exh. 8, pp. 305–307; Tr.
79–81, 132–137, 189–193, 461). According to Hagelstein and
Westrich, they intended to train Lysell, Paluczak, and Stras-
burger during their first few weeks on the job and they wanted
Lysell and Paluczak to become fulltime employees by the end
of March 1999 (Tr. 127, 452–453, 455, 476, 484). All three
new employees started working on temp poles, which are used
to supply electricity to new construction sites (GC Exh. 8; Tr.
143). Westrich considered Lysell and Palcuzak to be good
workers (Tr. 120, 132). With the hiring of these three new
employees, D & E had its largest workforce ever at 14 (Tr.
464).
Hagelstein tightened up on overtime in January 1999, telling
the employees that advance permission was needed to work
more than 8 hours a day (Tr. 413). For example, Hagelstein
told employee Tony Ryder not to work an extra 30 minutes to
finish up a job on February 5 (Tr. 361). This policy remained
in effect in March as well (Tr. 362, 398, 426). As for Saturday
work, Hagelstein did not approve various February and March
requests by employees Tony Ryder, Stephen Coffey, Jason
Stavron, and Thomas Creamer because of insufficient work (Tr.
363–364, 398–399, 413–414, 429–430). Also according to
employee Gregg LaBeau, too many men were working on one
job on Saturday, February 20 (Tr. 316, 318).
Neither Hagelstein nor Westrich ever talked with the three
new employees about the Union or the upcoming election.
Indeed, Hagelstein and Westrich testified that they knew noth-
ing about the views of any of these three new men about the
Union (Tr. 165, 184, 204, 457, 468, 482). Moreover, Lysell
testified that he didn’t learn of the pending election until after
he started working at D & E (Tr. 164–165).
Prounion employee LaBeau testified that on February 20,
1999, Hagelstein said he “didn’t think we needed the Union”
(Tr. 331–332). Employee Tom Creamer testified that around
February 25, 1999, he asked Hagelstein how the three new
employees would vote. According to Creamer, Hagelstein
replied “we’re not really that stupid that we would hire some-
body . . . to . . . go . . . against the vote” (Tr. 427–428). Hagel-
stein denied saying this and he further denied ever talking with
Creamer about how the three new employees would vote (Tr.
468–469).
On March 10, 1999, union organizer Booth visited a D & E
jobsite where Strasburger and Tom Creamer were working.
Booth already knew Creamer to be a union supporter. Accord-
ing to Booth, he asked Strasburger if he had any questions
about the Union. Strasburger replied that he did not know how
long he would be working and that he was at D & E “just . . . to
help out the owners” (Tr. 283–284). According to Creamer,
D & E ELECTRIC 1039
Strasburger said he was “definitely not” interested in the Union,
that he was not sure if he wanted to remain an electrician, and
that he was “just here . . . to help Dave and Kirk out. . . .” (Tr.
428–429). Strasburger, however, testified that he merely told
Booth that he was not interested in the Union and that he did
not “know if I was going to stick in this trade or not.” Stras-
burger denied ever saying that he was employed to help out the
owners (Tr. 200–201). Also in early March, employee Jason
Stavron talked with Strasburger about the Union and Stras-
burger said that he was told to stay away from union activity by
Glen Hackmeister, who originally told him about the job open-
ing at D & E (Tr. 408–409). Further, in another conversation,
with employee LaBeau sometime in March, Strasburger re-
marked that he might only stay with D & E for a “small period
of time” (Tr. 330–331).
The election was held on March 12, 1999, with six employ-
ees voting for the Union and five against, plus the three un-
known votes of Lysell, Paluczak, and Strasburger, which were
challenged by the Union on March 18 (GC Exh. 1(h)). And on
March 26, six employees, including Creamer, went on a strike,
which continues through the present (GC Exh. 1(m); Tr. 285–
286, 304).
Lysell last worked on March 5. On April 2, he took a leave
of absence to race cars on weekends (GC Exh. 5, p. 15). He
told the owners that he might return for weekends or on a full-
time basis later. According to Lysell, he did not anticipate the
race car opportunity when he started at D & E. Lysell also left
his full-time job at Al’s Service in March for another fulltime
car mechanic’s job, but he returned to Al’s shortly thereafter
(Tr. 158–163). On April 5 Paluczak also quit, having last
worked on March 26 (GC Exh. 5, p. 19). His fulltime employer
gave him a pay raise after Paluczak revealed his weekend work
with D & E. Paluczak testified that he left D & E because he
was more comfortable with his carpentry trade (Tr. 181–182,
185–186). Work on the Big Bend Crossings project began to
pick up for D & E in mid-March (GC Exh. 7, p. 286). But be-
cause of the loss of the six employees on strike, plus Lysell and
Paluczak, D & E lost some of its work with McBride due to
insufficient manpower (Tr. 226). To compensate, D & E hired
a part-time employee in May 1999 (GC Exh. 8, pp. 127–132).
III. ANALYSIS
An employer violates Section 8(a)(1) of the Act when it
“hires a substantial number of employees in order to ‘pack the
unit’ and thereby dilutes a union’s strength in a Board-
conducted election. . . .” Sonoma Mission Inn & Spa, 322
NLRB 898, 900 (1997). The General Counsel alleges that D &
E’s hiring of the three new employees—James Lysell, John
Strasburger, and Thomas Paluczak—in late January and early
February 1999, in advance of the March 1999 election, was
done for exactly this purpose. In order to prove its sole allega-
tion, the totality of the circumstantial evidence in this case must
be evaluated.3 Golden Fan Inn, 281 NLRB 226 (1986). But as

3 In its brief, the Respondent suggests that the unit packing issue be
evaluated pursuant to the standards of Wright Line, 251 NLRB 1083
(1980), which usually deals with discriminatory discharges of employ-
ees. However, neither the General Counsel nor the Union request that
this burden-shifting standard be applied. Also, the Board has appar-
ently never applied Wright Line to a 8(a)(1) unit-packing case, dealing
with the hiring of employees. Compare North Atlantic Medical Ser-
vices, 329 NLRB 85 (1999) (affirming judge’s findings of 8(a)(1) and
(a)(3) violations). So, the Presiding Judge will not do so either.
explained here, the presiding judge concludes that the prepon-
derance of the evidence fails to support the General Counsel’s
allegation.
First, there is absolutely no evidence of union animus by D
& E’s two owners. The only blemish was Hagelstein’s innocu-
ous February 20, 1999 remark to employee LaBeau that he
“didn’t think [the employees] needed the Union.” But this
opinion by Hagelstein was clearly speech protected by Section
8(c) of the Act inasmuch as it contained no threat against, or
promise to, an employee.
Second, two other statements, alleged to have been made by
Hagelstein and Strasburger, do not constitute evidence of an
illegal unit-packing plan by the Respondent. The first of these
alleged statements was made by Hagelstein in late February
1999 to employee Tom Creamer. Creamer testified that he
asked Hagelstein how the three new employees would vote, and
Hagelstein replied “we’re not really that stupid that we would
hire somebody . . . to . . . go . . . against the vote.” Hagelstein,
however, denied ever having such a conversation with
Creamer. In deciding whether Hagelstein uttered this state-
ment, the presiding judge found both Hagelstein and Creamer
to be credible witnesses. But given the lack of any proof that
either of D & E’s owners ever discussed the pending election
with any other employee, it is concluded, by a preponderance
of the evidence, that it is more likely that Hagelstein never had
any such discussion with Creamer. As for the second state-
ment, this one concerns a conversation between Strasburger and
union organizer Booth on March 10, in which Booth alleged
that Strasburger said he was at D & E “just . . . to help out the
owners.” Creamer also testified that Strasburger said this.
Strasburger, however, testified that he only told Booth that he
was not interested in the Union and that he was unsure whether
he wanted to continue in the electrical trade. The presiding
judge accepts Booth’s version, however, because it was cor-
roborated by Creamer and because other portions of the conver-
sation were admitted by Strasburger. Even so, evidence of unit
packing cannot be drawn from Strasburger’s remark. For one
thing, the statement is so ambiguous that it is just as likely that
Strasburger meant that he was “helping out” D & E with its
ongoing business, as opposed to the alleged unit-packing
scheme. See Golden Fan Inn, supra at 228. Also, Stras-
burger’s continued tenure at D & E, well beyond the March 12
election, belies any inference that he was working there simply
to vote.
Third, there is absolutely no evidence that either Hagelstein
or Westrich ever talked with any of the three new employees at
any time before election day about the Union, their union sym-
pathies, or the upcoming vote. Moreover, there is no evidence
that the owners were likely to have known about the three em-
ployees’ union leanings, if any, based on their backgrounds.
Compare America’s Best Quality Coatings Corp., 313 NLRB
470, 485 (1993) (“precipitous hiring of several employees
thought likely to be against the Union”). Although the fathers
of both Lysell and Paluczak first asked D & E’s owners about
jobs for their sons, there is no evidence about the union sympa-
thies of either father. Indeed, it is unclear how well the owners
knew the fathers of Lysell and Paluczak. As for Strasburger, he
was referred to D & E by Glen Hackmeister, who cautioned
Strasburger to stay away from union activity. But Hackmeister
did not testify and his precise relationship with D & E’s owners
is unknown. Compare Einhorn Enterprises, 279 NLRB 576,
596 (1986) (“it was apparent from the type of individuals hired,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1040
they would not be prounion employees”). Thus, the General
Counsel is simply wrong in contending that these three em-
ployees had a “long standing connection to the owners.” Ac-
cordingly, it is concluded that D & E’s owners hired the three
new employees without any information or inclination about
their union sympathies.
Fourth, it is true that the timing of D & E’s hiring of the new
employees was suspicious. See Plumbing & Industrial Supply
Co., 237 NLRB 1124, 1127 (1978). Specifically, the cutoff
date for voting eligibility in the March 12 election was Febru-
ary 6. And Lysell started work on January 30, Strasburger
started on February 5 and Paluczak started on February 6. But
the record is silent as to whether Hagelstein or Westrich knew
of the February 6 cutoff date. Rather, the General Counsel has
only established that Booth visited the two owners on January
25 with a request that D & E voluntarily recognize the Union.
Also, the Union contends that Strasburger was nefariously hired
on a Friday, while previous employees usually started on a
Monday. But Strasburger was unable to work from Monday,
February 8 through Thursday, February 11, albeit the record is
silent as to why. So, it hardly seems unreasonable that Stras-
burger would have started one Friday earlier. Moreover, D & E
waited 7 days after the interview to get Strasburger on board.
In sum, it can hardly be concluded that the owners scurried to
get three new employees on the payroll by February 6 much
less three antiunion bodies on board by then.
Of even more significance, though, the Respondent has es-
tablished a legitimate business reason for hiring the three new
employees in early 1999. Specifically, the owners learned on
approximately January 20 that D & E’s workload for the spring
of 1999 would increase substantially because of the needs of its
biggest customer, McBride & Son Homes, as evidenced by
their receipt of McBride’s 1999 business projection. Further,
McBride’s owner testified that D & E’s workload would in-
crease by 50 percent in 1999. Although the General Counsel
and the Union contend that D & E’s 1999 workload would
decrease in other areas, thus, offsetting the projected increases
for McBride’s Big Bend Crossings project, the Respondent is
entitled to considerable latitude in judging the needs of its own
business, which in this case involved a relatively small increase
in its workforce from 11 to 14. Plumbing & Industrial Supply
Co., supra at 1127. Compare Airborne Freight Corp., 263
NLRB 1376, 1378 (1982) (unit packing found where “[a]t no
time in the previous 3 years . . . were so many new employees
added . . . in so brief a period of time”), reversed on other
grounds Airborne Freight Corp. v. NLRB, 728 F.2d 357 (6th
Cir. 1984). Trend Construction Corp., 263 NLRB 295 (1982)
(increase in employees from 13 to 32 in 6 weeks).4 Finally,
although the General Counsel correctly notes in its brief that D
& E’s workload did not pick up in late March, the strike by half
its workforce then certainly didn’t help. In any event, the key
to analyzing this matter is whether D & E’s owners reasonably
believed as of late January 1999 that the Company’s workload
would increase significantly later in the spring. In that connec-
tion, the evidence shows that as of January 1999 work was

4 Although, it is true that D & E’s workload had slowed somewhat
in January and February 1999, that explains why D & E tightened up on
overtime in January 1999, with employees needing advance approval to
work more than 8 hours. As for the scarcity of Saturday overtime then,
the arrival of Lysell and Paluczak, who worked only on Saturdays,
necessarily meant no Saturday work for two other D & E employees for
2 months.
projected to pick up significantly and the three new employees
were hired a few weeks in advance so that they could be
trained.
Fifth, the Respondent did not significantly depart from its es-
tablished practices when it hired the new employees. See
America’s Best Quality Coatings Corp., supra. Although none
of the three new employees was hired pursuant to newspaper
advertisements, D & E’s practice since 1996 was also to ac-
quire new employees from referrals. Moreover, Hagelstein
testified that newspaper ads were not a particularly useful
means to acquire employees in today’s low unemployment
labor market. Compare Einhorn Enterprises, 279 NLRB at 596
(Company’s unsupported assertion that newspaper ads were
useless rejected). Next, D & E hired multiple employees at
around the same time before 1999: three employees hired
within one month in the spring of 1997. Also before 1999, D &
E put new employees to work immediately after an interview,
and sometimes the same day, just as it did with Lysell and
Paluczak. As for the hiring of part-time employees Lysell and
Paluczak, D & E parted with tradition. But in the presiding
judge’s view, this departure was adequately justified. Specifi-
cally, Lysell and Paluczak both testified credibly that they
wanted to try out D & E on Saturdays to see if they liked the
electrical trade. Also, the owners testified credibly that they
accepted these parttime offers in a tight labor market, with the
expectation that Lysell and Paluczak would evolve into full-
time employees by the time business was projected to increase
in late March 1999. Lastly, D & E had hired several inexperi-
enced employees before. Thus, the Union’s criticism that the
three new employees only worked on temp poles—a rudimen-
tary task—in the first few days of employment is unfair. So,
again, there was nothing significantly out of the ordinary re-
garding the manner in which the three new employees were
hired.
Sixth, the evidence does not warrant any conclusions adverse
to the Respondent regarding the status of the three employees
after the March 12 election. Indeed, Strasburger remains em-
ployed with D & E on a fulltime basis, at least through the date
of the trial in this case in July 1999, and another part-time em-
ployee was hired in May to replace either Lysell or Paluczak.
As for these two departed employees, the presiding judge con-
cludes that Lysell and Paluczak left for reasons wholly unre-
lated to the March 12 election. The evidence establishes that
Lysell was genuinely unsure about his vocational life, as he
first tried out D & E in January 1999. Then, in March 1999, he
traded his fulltime job at Al’s Service for another similar posi-
tion elsewhere, and his part-time job at D & E for a stint at
racing cars on weekends. Then in April, he returned to Al’s
Service. And Paluczak conceded that he used his part-time job
at D & E as leverage in bargaining for better pay and benefits
with his fulltime carpentry employer. Thus, it was Lysell and
Paluczak who manipulated D & E, as opposed to D & E ma-
nipulating the election with Lysell and Paluczak.
In summary, it was indeed suspicious that D & E hired three
new and inexperienced employees on the eve of the March 12,
1999 union election, given that the votes of these three pre-
sumably provide the margin of the Union’s defeat. But the
record contains no union animus by D & E’s owners and no
evidence that they knew anything about how these three would
vote. By contrast, the evidence establishes that the Respondent
hired the three in early 1999 in preparation for a major upsurge
in business and in a manner generally consistent with its past
D & E ELECTRIC 1041
hiring practices. Finally, the Respondent was blameless for the
departure of two of the three new employees shortly after the
election. Accordingly, it is concluded that the Respondent did
not violate Section 8(1) of the Act, and that the three employ-
ees’ ballots should be counted in the March 12, 1999 election.
IV. CONCLUSIONS OF LAW
1. The Respondent, D & E Electric, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union, Local 1, International Brotherhood of Electri-
cal Workers, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(1) of the Act
by hiring employees James Lysell, John Strasburger, and Tho-
mas Paluczak with the intent of packing the election unit and
defeating the employees’ rights to be represented by the Union.
ORDER
Accordingly, IT IS ORDERED5 that the July 23, 1999 Joint Mo-
tion to Receive General Counsel Exhibit 8 is granted.
IT IS FURTHER ORDERED, that the objection in Case 14–RC–
12015 is overruled and that the case is remanded to the Re-
gional Director for Region 14 to open and count the ballots of
James Lysell, John Strasburger, and Thomas Paluczak, to issue
a revised tally of ballots, and to take such further action as then
becomes appropriate. It is further ordered that the General
Counsel’s complaint and amended complaints are dismissed.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.