D. J. Electrical Contracting

National Labor Relations Board - Board Decisions

Jul 22, 1991

303 N.L.R.B. 820 (N.L.R.B. 1991)

820
303 NLRB No. 126
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has 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 evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent is required to furnish
the Union with the information requested in its October 3, 1989 letter regard-
ing Ohio Valley Home Monitoring, we note that the Union demonstrated that
the information was relevant to the parties’ collective-bargaining negotiations.
See George Koch & Sons, Inc., 295 NLRB 695 (1989); Blue Diamond Co.,
295 NLRB 1007 (1989). Thus, the record establishes that the Union had been
informed by the Respondent’s employees that the Respondent’s president,
David Jingle, had another company doing primarily residential electrical work
and that Jingle stated during negotiations that the Respondent and Ohio Valley
Home Monitoring were owned by the same people. In that context, the Union
requested information concerning Ohio Valley in an attempt to understand the
Respondent’s work rules proposals as they related to employees’ recall rights.
In its exceptions, the Respondent contends, inter alia, that it has furnished
to the Union the time records requested in its letter of October 3, 1989, which
enable the Union to estimate the amount of time spent by employees traveling
from the Respondent’s facility to the first jobsite each day and from the last
jobsite back to the Respondent’s facility. Because, however, this information
was not furnished to the Union until the commencement of the hearing and
because the Respondent failed to offer any explanation for this delay in fur-
nishing this information to the Union, we find that the delay constitutes a vio-
lation of Sec. 8(a)(5). Colonial Press, 204 NLRB 852, 861 (1973); Inter-
national Powder Metallurgy Co., 134 NLRB 1605, 1606 (1961).
2 The Charging Party has excepted to the judge’s failure to include in his
recommended Order a provision extending the Union’s certification year for
a 1-year period. We find merit in this exception. The Respondent’s violations
in failing to provide the Union with the information it requested commenced
just 1 month into the collective-bargaining process. In these circumstances we
find that the bargaining process never had a chance to get seriously and fairly
underway. See Colfor, Inc., 282 NLRB 1173, 1174 (1987), enfd. 838 F.2d 164
(6th Cir. 1988); Glomac Plastics v. NLRB, 592 F.2d 94, 100–101 (2d Cir.
1979), enfg. in pertinent part 234 NLRB 1309 fn. 4 (1978). We therefore find
it appropriate to extend the certification year for a 1-year period running from
the date that the Respondent begins to bargain in good faith. We shall modify
the judge’s recommended Order accordingly.
D. J. Electrical Contracting, Inc. and International
Brotherhood of Electrical Workers Local
Union 141. Cases 8–CA–21970 and 8–CA–22158
July 22, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On October 18, 1990, Administrative Law Judge
William F. Jacobs issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief to
the Respondent’s exceptions. The Charging Party filed
cross-exceptions, a supporting brief, and an answering
brief to the Respondent’s exceptions, and the Respond-
ent filed an answering brief to the Charging Party’s
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 and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the judge’s recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders the Respondent, D. J. Elec-
trical Contracting, Inc., Neffs, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
‘‘(c) On request, furnish the Union the information
requested in its letters of September 15 and October 3,
1989, and resume bargaining in good faith and for 12
months thereafter as if the initial certification year had
not expired.’’
2. Add the following as paragraph 2(d) and reletter
the subsequent paragraphs accordingly.
‘‘(d) Remove from its files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT interrogate you, in violation of the
Act, concerning your union activities.
WE WILL NOT threaten you with termination or loss
of working time in retaliation for your union activities.
WE WILL NOT create the impression that we are
keeping your union activities under surveillance.
WE WILL NOT compel you to execute letters of res-
ignation for reasons violative of the Act.
WE WILL NOT terminate you or deny you steady em-
ployment because of your union activities.
WE WILL NOT refuse to furnish the Union with in-
formation concerning the terms and conditions of em-
ployment of employees in the unit which it represents.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer to Jay LaRoche, Dana Brent Bonar,
John Welshans Jr., John Blacker, and Paul Kartman
immediate and full reinstatement to their former posi-
tions, displacing, if necessary, any replacement or, if
not available, to a substantially equivalent position
without loss of seniority or other privileges.
WE WILL make Jay LaRoche, Dana Brent Bonar,
John Welshans Jr., John Blacker, and Paul Kartman
821D. J. ELECTRICAL CONTRACTING
1 Hereafter all dates are in 1989 unless noted otherwise.
2 The Union.
3 The complaint alleges and the answer admits that the Board has jurisdic-
tion and the Union is a labor organization within the meaning of the Act.
4 Respondent, Employer, or Company.
5 Hereafter all dates are in 1988 unless noted otherwise.
whole for lost earnings resulting from the discrimina-
tion against them by payment of a sum of money equal
to that which they would have earned from the initial
date of termination and, in Blacker’s case, from the
initial date of denial of steady employment, to the date
of a bona fide offer of reinstatement, with interest.
WE WILL, on request, furnish the Union the informa-
tion requested in its letters of September 15 and Octo-
ber 3, 1989, and resume bargaining in good faith and
for 12 months thereafter as if the initial certification
year had not expired.
WE WILL notify the above-named employees that we
have removed from our files any reference to their dis-
charges and that the discharges will not be used
against them in any way.
D. J. ELECTRICAL CONTRACTING, INC.
Richard R. Mack, Esq., for the General Counsel.
Gerald P. Duff, Esq. (Hanlon, Duff & Paleudis), of St.
Clairsville, Ohio, for the Respondent.
Randall Vehar, Esq., of Canton, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This case
was tried before me on December 18 and 19, 1989,1 at Bel-
laire, Ohio. The original charge in Case 8–CA–21970 was
filed by the Union on July 18 and amended on August 21.
The charge in Case 8–CA–22158 was filed by the Union on
October 16. The complaint in Case 8–CA–21970 issued Au-
gust 25 and an order consolidating cases, amended consoli-
dated complaint and notice of hearing issued December 1.
The amended consolidated complaint was further amended at
the hearing.
The amended consolidated complaint alleges violations of
Section 8(a)(1), (3), and (5). The 8(a)(1) allegations consist
of alleged acts of unlawful interrogation, the unlawful delay
of implementation of an employee health insurance program,
numerous unlawful promises and threats, the unlawfully mo-
tivated recall of an employee to work for the sole purpose
of having him vote in an NLRB election, the creation of the
impression of unlawful surveillance, and several unlawful at-
tempts to compel the resignation of certain employees. The
8(a)(3) allegations consist of the discriminatorily motivated
separation of employees and the unlawful termination, layoff,
and discharge of five employees. The 8(a)(5) allegations con-
sist of the unlawful refusal to provide2 with information nec-
essary for it to perform its function as the collective-bar-
gaining representative of Respondent’s employees. The an-
swer, duly filed, denies the commission of any unfair labor
practices.
All parties appeared at the hearing and were afforded full
opportunity to be heard and to present evidence and argu-
ment. All parties filed briefs. On the entire record, my obser-
vation of the demeanor of the witnesses and after giving due
consideration to the briefs, I make the following
FINDINGS OF FACT3
D. J. Electrical Contracting, Inc.4 is an electrical contractor
performing services primarily in the construction industry in
Ohio, West Virginia, and nearby States. David Jingle is Re-
spondent’s president and is solely in charge of all labor rela-
tions.
In October 1988,5 James Stubenrod, the Union’s business
manager, approached Jingle at a jobsite and asked him if he
would consider establishing a contractual relationship with
the Union. Subsequently, the two men had a second meeting
during which Stubenrod suggested that a meeting be sched-
uled at which he would speak to Respondent’s assembled
employees, explain to them the benefits of unionization and
let them decide, for themselves, if they wanted representa-
tion.
Following his second meeting with Stubenrod, Jingle
spoke to several of his employees, including one Jay
LaRoche, about the fact that he was considering going union.
He warned that if he did so, wages would be drastically cut.
He then asked the opinion of his employees about his going
union. After discussing the matter with his employees, Jingle
decided against inviting Stubenrod to address them.
LaRoche, fearing loss of employment if Respondent went
union, contacted Stubenrod in order to get more information.
Stubenrod, not having had any success obtaining Jingle’s co-
operation in scheduling a meeting with Respondent’s em-
ployees, decided to use LaRoche as his primary contact with
them. Through LaRoche he scheduled a meeting with them
at the union hall for November 10.
On November 10, LaRoche, accompanied by fellow em-
ployee John Blacker, met with Stubenrod and other members
of the Union’s organizing committee. The union representa-
tives gave LaRoche and Blacker pamphlets and explained to
them the benefits of belonging to the Union. After a general
discussion the meeting concluded.
Following the November 10 meeting, Blacker and
LaRoche spoke in favor of the Union with Respondent’s
other employees. LaRoche also distributed pamphlets to
them. He mentioned to Jingle’s secretary his interest in the
Union. Her response was that a union was not necessary.
About November 21, Jingle decided that he would not go
union. He announced his decision to his employees. In early
December, Jingle called several employees together including
Blacker, LaRoche, and one Oscar Lunsford. He announced
again that he was not going to turn union; that he did not
want to go union; and that if the men ‘‘wanted to quit and
go cut their own deal with the union, they could.’’
In late December, a day or two after employee Dana
Bonar first came to work for Respondent, Jingle asked him
how he felt about the Union. Bonar admitted that when he
first moved into the area, he tried to join the Union but could
not get in. Jingle retorted that he had once considered joining
the Union himself, but that the Union started doing things
behind his back and if he could not trust the Union before
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Hereafter all dates are in 1989 unless noted otherwise.
7 The February 23 meeting was the only meeting of the three that Blacker
did not attend. However, he testified that Jingle asked him about the Novem-
ber 10 meeting which he had attended. In any case, Jingle’s question is evi-
dence of Jingle’s interest and knowledge concerning union activities, though
it is not alleged as a violation.
8 Allied Lettercraft Co., 272 NLRB 612 (1984).
9 Par. 9(a).
10 Par. 10(a) and (b). 11 Limited to the time period January through March.
signing a contract, he was not going to trust them afterwards.
He added that he was having union trouble at the time.
Employee Paul Kartman was working with Jingle on a job
in Frederick, Maryland, at times during the months of De-
cember 1988 through February 1989. On one occasion, while
working there, Jingle mentioned that the employees were
having a union meeting and he was wondering how it was
going. When they returned to Ohio from Maryland, which
was in early February 1989,6 Jingle asked Kartman if he had
been contacted by the Union.
On February 23, a second union meeting was held at the
union hall. This meeting was attended by LaRoche and
Kartman. Discussions at the meeting concerned, among other
things, if and when a representation election should be held.
The following day Jingle asked Blacker how the meeting
went the night before. Blacker replied that he did not go.7
None of the above incidents are alleged as violative in the
complaint. Those discussed below are so alleged. Thus, on
March 7, while Blacker was working on a job on Wheeling
Island, Jingle visited the jobsite to check on its progress and
to bring supplies. About 15 or 20 minutes before quitting
time, as Blacker was walking off the jobsite, Jingle asked
him if he had signed a union card. Blacker did not reply but
acted as though he had not heard the question and kept on
going. Jingle testified that he did, in fact, have a discussion
about the Union with Blacker at the time and place described
by Blacker in his testimony. Jingle admitted that it occurred
after the petition was filed and had to do with procedure fol-
lowing the election, if the Union should win. Jingle specifi-
cally denied asking Blacker if he had signed a union card.
I credit Blacker that Jingle asked him if he had signed a
union card, probably as a reaction to having received notice
of the petition. I find that the interrogation was in violation
of Section 8(a)(1) of the Act8 as alleged in the complaint.9
The complaint alleges10 that Respondent, through Jingle,
separated Blacker and LaRoche, at work, although they had
previously always worked together and that the separation
was discriminatorily motivated. Respondent denies that the
two employees were separated at all, much less because of
their union activity.
With regard to this allegation Blacker testified that during
the 2-1/2 years working for Respondent, he rarely worked
alone but usually worked with LaRoche. LaRoche had been
teaching Blacker, training him in electrical work. LaRoche
testified, in support of Blacker’s testimony, that Jingle talked
with him about making Blacker his protege so that he would
be a benefit to the company in future years. Following this
discussion, Blacker worked one-on-one with LaRoche in
order ‘‘to do things 100% right.’’ This went on for 2 years,
at one job after another, and Blacker turned into ‘‘a real
good worker.’’ Jingle testified concerning the relationship at
work between Blacker and LaRoche and did not dispute their
testimony.
Blacker testified that at one point, presumably during the
organizational campaign, while both he and LaRoche were
working together, an old job in Barnesville, where they pre-
viously had been working together, started up again. Instead
of both being assigned to Barnesville, they were separated
and LaRoche was sent to Barnesville to work with other peo-
ple while Blacker remained behind. Blacker was given no
explanation for the alleged change in practice.
LaRoche testified that he could not recall when he was
separated from Blacker relative to his layoff on March 28.
He recalled Blacker working at Saint Luke’s in Wheeling
while he worked alone at New Philadelphia. LaRoche testi-
fied that he was not advised why he and Blacker had been
separated but admitted that Blacker had been doing well and
that if he were doing well, he would be taken away from
him, because LaRoche did not work with anyone who was
already well trained. LaRoche also admitted that Blacker and
he had previously worked apart on occasion. In explanation,
he stated that he would do the most difficult work at a job
site, then leave, permitting the less qualified employees to
complete the less demanding tasks.
Jingle testified that until shortly before LaRoche’s layoff,
Blacker and LaRoche had not been permanently separated
for any reason. They worked together up to just a few days
before the layoff, according to Jingle’s testimony.
Personnel records11 reveal that Blacker and LaRoche
worked together for 15-1/2 hours and at different worksites
for 24-1/2 hours during the second week in January; that
through the remainder of January they rarely worked to-
gether, Blacker remaining on the St. Luke’s job while
LaRoche moved on to projects in New Philadelphia and
Barnesville; that in February Blacker continued to work at
St. Luke’s while LaRoche worked primarily at other sites
until mid-February at which time he returned to St. Luke’s
where he worked together with Blacker on a virtually con-
stant basis until his layoff on March 24.
I find that LaRoche and Blacker worked together as master
and apprentice and that when it appeared that Blacker could
adequately perform on his own and perhaps complete a job
without LaRoche’s help, LaRoche would move on to more
difficult jobs. In my opinion, the work assignments had noth-
ing to do with these two employees’ union activity. The fact
that they were assigned to work together for the last month
of LaRoche’s employment convinces me that the allegation
should be dismissed and I shall so recommend.
On the morning of March 24, as Blacker was getting ready
to go to work, he received a phone call from Jingle. It was
raining and Jingle suggested that they hold off going to work
until 8 a.m. to watch the weather and see what happened.
Blacker did not work that day.
Blacker testified that, before March 24, he had never lost
work because of bad weather, that when the weather was
bad, Jingle would make provisions for the employees to
work on an inside project. Personnel records covering the pe-
riod December 1988 through November 1989 reveal that no
employee, except for this one instance, had ever been laid off
work for just 1 or 2 days. If it had been the practice for Re-
spondent to lay off its employees because of bad weather,
the records would have so reflected. Moreover, personnel
records reflect that all the other employees worked March
823D. J. ELECTRICAL CONTRACTING
12 Limited to the period of December 1988 to April 1989. Respondent of-
fered neither records nor testimony to discredit the testimony of Blacker and
LaRoche. I therefore credit their testimony with regard to these matters.
13 LaRoche has a master electrician’s license for West Virginia. He also has
a fire alarm license for Ohio. Thus, only he and Jingle are licensed to install
fire alarms. Finally, LaRoche has an associate degree in electromechanical en-
gineering which no one else, not even Jingle has.
14 Par. 9(j).
15 Hecks, Inc., 273 NLRB 202 (1984); California Dental Care, 272 NLRB
1153 (1984).
16 Par. 11(a) and (b). Baker Mfg. Co., 269 NLRB 794 (1984); Superior Pon-
tiac, 271 NLRB 1066 (1984).
24, except for LaRoche and Blacker, two of them at St.
Luke’s, the same jobsite where LaRoche and Blacker had
worked the first 4 days of that week. Three other employees
worked a full 8-hour day on March 24, either all day, or part
of the day, in the shop.
As for LaRoche, according to a notation on his timecard,
he was called at 7:45 a.m. on March 24 and told to take the
day off. LaRoche testified that in his 2-1/2 years of employ-
ment with Respondent, he had never before been laid off.
Blacker credibly testified that he had not been laid off since
the previous winter. Personnel records12 support their testi-
mony.
Both Blacker and LaRoche worked on Monday and Tues-
day, March 27 and 28, then both were told there was no
work and neither worked regularly thereafter. At the time of
his layoff Blacker had worked for Respondent for 2-1/2
years. He had worked various jobs and was acquainted with
projects which were still ongoing as of the time of his layoff
including the church on the Island, Barnesville, a sewage
plant, Barcamp, and Kent State. LaRoche had worked at all
these projects plus others. Moreover, LaRoche was more
than just another electrician. From 1983 to 1985 he had been
part owner of Respondent. When he came back to work for
Jingle in 1986, he not only did service calls but also made
estimates, sent bills out and worked in the office. As noted,
LaRoche was relied on to train and teach new and less expe-
rienced employees. He was Respondent’s highest paid and
most valuable employee.13 Until the advent of the Union
LaRoche had a key to the office and was entrusted with the
combination to the burglar alarm systems which guards Re-
spondent’s office.
As noted, Blacker and LaRoche had been working on the
Barnesville job for 2 days and at St. Luke’s a month or more
before that, when laid off. Though they were senior employ-
ees they were laid off while relatively new employees were
kept working: Bonar at St. Luke’s, Welshans, and Kartman
at the shop. Whereas LaRoche testified that he had not ever
been laid off in his 2-1/2 years with the Company and
Blacker stated that he had not been laid off since the pre-
vious winter (1988), both Kartman and Welshans admitted to
frequent layoffs. Thus, it is evident that Respondent dras-
tically changed its practice with regard to layoffs to the det-
riment of the two union activists, during the union campaign,
immediately preceding the election.
Immediately after his layoff, Blacker would call Respond-
ent to see if there was work scheduled for the following day
but was told, each time, that there was none. Finally, Jingle
told Blacker that he would call Blacker if there was work,
implying that Blacker’s phone calls were no longer welcome.
Blacker complied and stopped calling.
LaRoche went home from the Barnesville job on March 28
expecting to go to work the following day at 6:45 a.m. That
evening, however, Jingle called LaRoche at his home and
told him not to report until 8 a.m. The following morning
at 7:40 a.m. Jingle called LaRoche and told him not to report
to work at all. LaRoche asked whether there would be work
during the rest of the week. Jingle replied that there might
be work the following Monday but that LaRoche was laid off
and Jingle would call him when there was work. Jingle never
called LaRoche back to work.
LaRoche credibly testified that in the 2-1/2 years that he
worked for Respondent, there had been times when there was
not enough work to keep all the employees busy in the field.
On these occasions, Jingle would keep LaRoche in the office
and give whatever field work there was to the other employ-
ees. In the office, LaRoche would study plans and specifica-
tions, determine supply needs, call suppliers, make estimates,
and price invoices and work orders. My findings with regard
to the alleged discriminatory actions taken against Blacker
and LaRoche will be further discussed infra.
Between the time that LaRoche worked his last day for
Respondent, March 28, and the date of the election, April 6,
an employee, John Welshans, overheard a conversation
which took place between employee Angelo ‘‘Doc’’ Graham
and Jingle during which Jingle stated that neither Blacker nor
LaRoche would be working for the Company ‘‘even if the
Union didn’t come in.’’ The complaint14 alleges this state-
ment to be in violation of Section 8(a)(1). In the context of
the surrounding circumstances, I find that it is.15
On March 30 the Union held its third meeting. The meet-
ing was attended by all but one of Respondent’s employees.
Thus, the employees who attended the meeting included, as
it later turned out, the five who voted for the Union plus
Graham, an individual who, as revealed above, was Jingle’s
confidant. At this meeting Stubenrod described how he had
initially approached, Jingle and requested voluntary recogni-
tion, then decided to organize from the bottom up. Benefits
of union membership, testing, and placement were also dis-
cussed.
On April 3, LaRoche dropped his timecard off at the of-
fice and had a brief conversation with Jingle’s secretary. Be-
cause he had not received any recent assignments, he sug-
gested that he should just stay home until he heard from her
or from Jingle. The secretary stated that he should, indeed,
follow that course.
I find that the evidence is sufficient to warrant the conclu-
sion that LaRoche was involved initially in the organizing
campaign, that Jingle was aware of that fact and laid off
LaRoche because of his union activity. Because Jingle stated
that he would not call LaRoche back after the election even
if the Union did not win the election, LaRoche’s layoff was
permanent and was, in fact, a termination in violation of Sec-
tion 8(a)(1) and (3) as alleged in the complaint.16
On April 3, Jingle called several employees into a small
room to speak to them individually about the Union. He
called Blacker’s home and asked his wife to have him come
in for this purpose. When Blacker arrived, Jingle presented
him with an envelope containing campaign literature, Jingle’s
position. He told Blacker that he wanted to talk to him, that
he could read the literature later. He then informed Blacker
that his employees enjoyed a better medical plan than the
Union offered. He pointed out that Blacker had worked year
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Par. 9(i).
18 Baton Rouge General Hospital, 283 NLRB 192 (1987).
19 Par. 9(e).
20 NLRB v. Hasbro Industries, 672 F.2d 978 (1st Cir. 1982).
21 Prevailing rate wages were at least double that ordinarily paid and in-
cluded vacation pay and benefits as well.
22 Par. 9(f).
23 Hotel Roanoke, 293 NLRB 182 (1989).
24 Jingle testified to having made statements, on this occasion, somewhat
different from those attributed to him. However, I credit the account as testi-
fied to by the employees.
25 Par. 9(d) and (v).
26 Harvard Folding Box Co., 273 NLRB 1031 (1984); Harrison Steel Cast-
ings Co., 293 NLRB 1158 (1989).
27 NLRB v. Hasbro, supra.
28 Par. 9(i).
29 Harrison Steel, supra.
round for Respondent and probably that would not happen
with the Union. This statement is alleged in the complaint
to be a violation of Section 8(a)(1) of the Act.17 I find that
it is.18
Jingle continued his conversation with Blacker by stating
that he did not want the Union in because it had lied to him
and he did not want liars in his shop. He did not explain the
basis for this accusation.
When Jingle next stated that if the Union got in, there
would be only two journeyman cards handed out, Blacker
became angry and stated that he thought that all the employ-
ees were to be tested equally and that he had just as much
a chance of getting into the Union as anybody else. Jingle’s
statement concerning the limited number of journeyman
cards is alleged in the complaint as violative of the Act.19
I find that it is, because the implication is that Blacker would
lose his job to employees holding journeyman cards and
there is no evidence in the record that Jingle’s dire prediction
was based on fact.20
The conversation continued with Jingle advising Blacker
that he had treated him better than the other employees by
paying him at a higher rate. Blacker testified that this was
true. Jingle added, in connection with his treatment of
Blacker, that he had taken a lot of heartache, a lot of flack
over him because other employees knew more than Blacker
and were better electricians than Blacker, yet Blacker was
still employed on the better, prevailing wage jobs21 when he
did not deserve these assignments. Jingle also mentioned the
fact that Blacker had worked steady over the years, implying
that others had not and payroll records bear this out. The im-
portance of this discussion is that it proves that Blacker, until
he became involved with the Union, was treated especially
well, better than other rank-and-file employees.
Jingle also spoke individually to employees Kartman and
Bonar on April 3. Jingle asked Bonar how he felt about the
Union. Bonar, in turn, asked Jingle how he felt about the
Union, to which Jingle replied that he was not allowed to tell
him. Bonar then stated that he would have to do what was
best for him and his family and did not see how he could
turn down a chance to get into the Union. Jingle argued that
he did not know how Bonar could make the statements he
had or what the Union could be offering him. He then in-
formed Bonar that he just wanted to tell him that he liked
Bonar’s work and the responsibility that he had been taking.
He assured him that he had a future with D. J. Electric, but
then informed him that regardless of how the vote went, he
would probably be laid off for a week, though no longer.
The two discussed the forthcoming election to some de-
gree thereafter. Jingle stated that he did not think that it
would be fair for Bonar’s vote to be the deciding factor in
the election because he had been with him for such a short
time. He added that he thought that Bonar was taking a ride
on Jingle’s bootlaces and Bonar agreed. Before the meeting
ended, Jingle assured Bonar that it was not his intention to
sign an agreement with the Union. This last statement is al-
leged in the complaint22 as a violation of the Act inasmuch
as it expressed the futility of selecting the Union as rep-
resentative. I so find.23
When Jingle met with Kartman, he gave him a copy of
the same letter that he had given the other employees with
whom he had met. At the time, which was probably on April
3, but in any event a few days before the election, he advised
Kartman that he was not going to go union.
After meeting individually with certain employees, Jingle
called all of them, except LaRoche, to a general meeting on
April 4. At this meeting Jingle told his employees that al-
though work was slow at the time and had been slow
throughout 1988, ‘‘there was work out there.’’ He told them,
however, that even though there was work out there, he was
not going to pursue it ‘‘until after the union thing; until after
the election.’’ He said that he had work but ‘‘just wasn’t
signing nothing’’ until he ‘‘seen what was going to happen.’’
Jingle added that he did not know how many people he was
going to have working for him.24 The complaint alleges25
these statements to be violative of the Act. I find that what
Jingle was saying was that if the Union won, he would cut
his work force and if it lost, he would keep his work force
or expand it. Indeed, Jingle’s own testimony reveals that this
was his thinking. I find, therefore, these statements to be co-
ercive and in violation of the Act.26
According to Jingle’s own testimony he advised those
present, as he had earlier done in his individual discussion
with Blacker, that if they accepted the Union as their bar-
gaining representative, they would all be tested, that in his
opinion, only two of them would be able to pass the test
with grades sufficiently high to permit them to obtain a jour-
neyman’s card and that he would only be allowed to keep
one apprentice employed, the others having to sign up for
work at the union hall. As found supra, this statement is vio-
lative of the Act inasmuch as it is tantamount to a threat of
termination.27
Finally, Jingle, at this meeting, reiterated his earlier state-
ment to Blacker that the employees had been working for
Respondent year round and that if they stayed with him, they
would continue to work year round, but that it would not
happen with the Union. The complaint alleges28 this state-
ment as violative of the Act and I so find.29
On April 4 Jingle engaged employee John Welshans Jr. in
several conversations about the Union. In one, after Jingle
handed Welshans a copy of his campaign literature con-
cerning his views on the Union, the latter gave some indica-
tion that he had changed his mind about the Union which he
had initially opposed. Jingle commented that this didn’t look
good, that it didn’t look like Welshans was against the Union
anymore. Welshans said:
825D. J. ELECTRICAL CONTRACTING
30 Par. 9 (k).
31 Middletown Hospital Assn., 282 NLRB 541 (1986); National Micronetics,
277 NLRB 993 (1985).
32 Par. 9(d). 33 Par. 13(a) and (b). Harvard Folding Box, supra.
Well Dave, to tell you the truth, I’ve got to look out
for my family, and I have to look into this because of
the benefits that I’m going to be getting from it in the
long term. I don’t want to hurt you in any way, but I
have to look out for myself and my family.
This conversation clearly established company knowledge
of Welshans’ prounion sympathies immediately prior to the
election.
In a second conversation between Jingle and Welshans,
while the two were alone, a few days before the election,
Jingle said that ‘‘things were going to change.’’ He added
that that was all he could say, that he could not say anymore,
that he did not want to get into any trouble about it. The
complaint alleges30 that on April 5 Jingle promised an em-
ployee unspecified benefits by making this statement. I find,
however, that Jingle’s statement was too vague to rise to the
level of an unlawful promise of benefits.31
In a third conversation between Jingle and Welshans,
which took place on April 4, Jingle apologized to Welshans
for not having provided health insurance to him. Jingle had
promised Welshans when he first started working for Re-
spondent, that he was going to be provided with health insur-
ance. During the April 4 conversation, he explained that it
had been an oversight on Jingle’s part. The complaint al-
leges32 that in mid-March, Respondent unlawfully delayed
the implementation of an employee health insurance program
because of their union activities. I find insufficient evidence
in the record to support this allegation and recommend its
dismissal.
In still a fourth conversation, a day or two before the elec-
tion, Welshans advised Jingle that he was in favor of the
Union because it could provide him with schooling. Jingle
argued that he had told Welshans a long time ago that Re-
spondent would reimburse him for any work-related school-
ing but Welshans denied that Jingle had ever made such an
offer. Welshans thus, once again, made clear his position on
union representation.
Prior to the election, scheduled for April 6, Jingle confided
his knowledge of, and displeasure with, LaRoche’s and
Blacker’s union activities to other employees. He told
Kartman that he wished that if LaRoche was going to go
union, he would cut his own deal and go to the Union, in
other words, to leave Respondent’s employ.
On another occasion Jingle told Welshans that he could
not understand why LaRoche and Blacker were bringing the
Union in or organizing for the Union because he felt that he
had been treating them fair enough so that they did not have
to do anything of that nature. Welshans agreed, but this, of
course, was prior to Welshans change of heart.
The election took place as scheduled on April 6 at 7 or
7:30 a.m.. The tally of ballots indicates that Respondent’s
employees cast five votes for the Union and two votes
against the Union. The five votes cast in favor of the Union
were by LaRoche, Blacker, Bonar, Kartman, and Welshans.
After the election, the employees waited around to find out
the results. Bonar had been scheduled to work in the shop
after the election, just as he had done the day before and part
of the day before that. Welshans was with him and had also
worked at the shop earlier in the week. As the two prepared
to go to work, Jingle came ont and said to them, ‘‘I don’t
have any work for you.’’ Both turned around and left. Nei-
ther of them worked that day or ever again for Respondent.
They were never recalled. Their impressions at the time were
that they were finished as employees of Respondent because
of the union victory.
Bonar had worked in the shop on April 5 for 7-1/2 hours
and on April 4 for 2-1/2 hours, transferring materials from
one building to another after the second building had been
remodeled. There was a lot of inventory to transfer to the re-
modeled building and as of the morning of April 6, the trans-
fer of material had not yet been completed. Most of the ma-
terial had been transferred but was lying around on the floor
and still had to be stocked. Bonar was prepared, at the time
he was abruptly sent home, to continue restocking the inven-
tory. According to Bonar, at the time he was sent home,
there was still 2 or 3 weeks work left to be done, transferring
material, stocking, and building shelves. Records support
Bonar’s testimony to the extent that they show that employ-
ees Lunsford and Graham each worked 8 hours in the shop
on April 6 and together in the shop an additional 37 hours
over the next 3 weeks.
Bonar credibly testified, and records support his testimony,
that he had worked numerous times at the Kent State project,
which was still in its beginning stages, and still had 3 or 4
months’ work to be done. Records also indicate that Bonar
had worked on the St. Luke’s project and that at the time
of his layoff there was still work to be performed there.
The record indicates that Jingle was aware of Bonar’s
union sympathies, that he was strongly opposed to the
Union, and that he laid off Bonar immediately after the
Union’s victory at the polls despite the fact that Bonar was
scheduled to work that very day. Because there was still
work available, during the next few weeks and months, at
projects with which Bonar was familiar, but Jingle did not
recall him to work, I find that Bonar’s layoff was meant to
be permanent and was, in fact, a termination which was
discriminatorily motivated by the results of the Union vic-
tory. By terminating Bonar because of his prounion sym-
pathies, Respondent violated Section 8(a)(1) and (3) of the
Act as alleged in the complaint.33
Welshans’ last actual days of work for Respondent, were
Wednesday through Friday, March 29–31, and Monday and
part of Tuesday, April 3 and 4. After a couple of hours on
the job on April 4, Welshans asked and was granted permis-
sion to take the rest of the day off, as well as April 5. Al-
though Jingle and Welshans had had several conversations
on April 4 concerning the Union as well as working condi-
tions at Respondent’s place of business, and Jingle therefore
had plenty of opportunity to advise Welshans that there
would be no work for him on Friday, he made no mention
of it, and Welshans reported to work on April 6 fully expect-
ing to continue working.
As in the case of Bonar, there was still work available for
Welshans in the shop, at the time of Welshans’ layoff, imme-
diately after the tally of ballots, which Welshans’ had already
been scheduled to perform. His continued performance was
interrupted by the layoff. Further, Welshans had, according
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 Pars. 13(a) and 9(b). Harvard, supra.
35 Par. 9(m).
36 The work had apparently been started by another contractor.
37 Par. 9(1).
38 Aircraft Ornamental Iron Co., 271 NLRB 829 (1984).
39 Par. 9(n).
40 Harvard, supra.
41 Pars. 13(a) and 9(b).
42 Par. 12(a) and (b). Kime Plus, Inc., 295 NLRB 127 (1989).
43 Par. 9(1). Aircraft Ornamental Iron Co., supra.
to the records, worked on the Kent State and St. Luke’s jobs
just as Bonar had, but was not recalled despite the fact that
work was still available at those sites.
The record clearly indicates that Jingle was well aware of
Welshans’ prounion sympathies and discussed these sym-
pathies on several occasions with him, trying to dissuade him
from supporting the Union. The record also indicates that
Jingle considered Welshans a good worker. Therefore, when
Jingle laid off Welshans immediately after the election, de-
spite the fact that there was work available for him to per-
form, the conclusion is unavoidable that the layoff was in re-
taliation for his union support. Because additional work sub-
sequently because available after Welshans’ layoff and Jingle
failed to recall Welshans to perform this work, it becomes
evident that the layoff of Welshans was meant to be perma-
nent and, in fact, a termination. I therefore find that Re-
spondent, by terminating Welshans because of his union ac-
tivities, violated Section 8(a)(1) and (3) as alleged in the
complaint.34
LaRoche showed up at the polls on April 6 to cast his bal-
lot. After the count, LaRoche and the other employees were
waiting around for their paychecks. LaRoche went to the
company truck and got his personal handtools. When he re-
turned to the group, Jingle was also present. He asked
LaRoche for his set of keys to the truck and shop. LaRoche
gave the keys to Jingle. This was the first meeting between
the two since March 28 and would be the last communica-
tion between them until over a month later.
On the morning of April 6, Blacker reported to the polling
area to cast his ballot. He also reported for work for the first
time since March 28. After he cast his ballot, he waited
around for the count. He was then sent to work with Paul
Kartman on a job at BCI, otherwise known as Belot Con-
crete.
Inasmuch as Blacker had not worked since March 28,
there is a question as to why he was called to work suddenly
on April 6. The complaint35 alleges that Respondent recalled
an employee to work on the day of the election solely for
the purpose of having the employee vote in the election. The
allegation is not supported by the evidence. Blacker was a
known union adherent who had been laid off because of his
union sympathies. It was obviously against Respondent’s
demonstrated antiunion interests to have Blacker cast his bal-
lot and ridiculous to conclude that Jingle called him back
solely for that purpose. I recommend dismissal of this allega-
tion.
The record reveals that Blacker’s father was responsible
for Respondent getting the BCI job and, for this reason, Jin-
gle evidently felt an obligation to employ the elder Blacker’s
son. Therefore, immediately after the election, Jingle sent
Blacker and Kartman to the BCI job which, by company
records, was begun that very day.36
After Kartman and Blacker arrived at the BCI jobsite, they
found that they would not be permitted, by contractors on the
site, to follow the plans that they had been given by Re-
spondent. Jingle was summoned to iron out the difficulty.
When Jingle arrived on the site, between 1 and 1:30 p.m.,
to take care of the installation problem, he asked Blacker
how he had voted in the election that morning. Blacker re-
plied that he was not going to tell Jingle a lie and said that
he had voted, ‘‘yes.’’ Jingle then stated that the reason that
he wanted to know, was that he wanted to know who he was
keeping, and who he was sending down the road. Blacker
then asked Jingle why anything had to change, adding that
he understood that employees could continue to work for Re-
spondent, even though members of the Union, under their
regular rate of pay, until negotiations were completed, for at
least a year. Jingle just laughed, got into his truck, and drove
away. This was the last day Blacker worked for Respondent.
The complaint alleges37 that Respondent, on April 6, un-
lawfully interrogated employees by asking them how they
voted in the election. I find that the violation occurred as al-
leged.38 The complaint further alleges39 that Respondent vio-
lated the Act by telling employees that those who had voted,
‘‘no’’ in the election, would he retained as employees and
those who had voted, ‘‘yes’’ in the election would be termi-
nated. From the above described statement of Jingle, I find
the allegation meritorious.40
The complaint also alleges41 that on April 6, Respondent
violated Section 8(a)(1) and (3) of the Act by terminating its
employee, John Blacker. Inasmuch as Blacker never worked
for Respondent thereafter, I find that it did. Further, the
record supports the complaint that Blacker was denied steady
employment during his last several days with Respondent for
reasons violative of Section 8(a)(1) and (3) of the Act.42
After Jingle left the worksite, Blacker went over to
Kartman and told him that he had just been advised by Jingle
that he, Blacker, no longer worked for Respondent and that
he would therefore not be riding home in the truck with
Kartman, but rather would ride home with his father.
Kartman drove back to the shop alone that evening.
When Kartman arrived at the shop, Jingle asked him how
he voted. Kartman admitted that he had voted, ‘‘yes.’’ Jingle
said that he was disappointed in Kartman. Kartman then left
and went home, expecting to report to the shop in the morn-
ing and to go from there to the worksite at BCI, to finish
the job that he and Blacker had started. I find Jingle’s inter-
rogation of Kartman concerning his vote to be violative of
Section 8(a)(1) as alleged in the complaint.43
About half an hour after the election, Stubenrod arrived at
the union hall and was informed by his secretary that certain
of Respondent’s employees, presumably Bonar and
Welshans, had called to advise him that they had been told
that there was no work for them that day. Subsequently,
Stubenrod attempted to find interim employment for them.
Both Blacker and Kartman were scheduled to continue
their work at BCI on the morning of April 7. There was a
death in Blacker’s family, however, and he did not report to
work on April 7. Kartman, on the other hand, reported to the
shop, as usual at 6:30 a.m., to go to work at BCI. When he
arrived he found the gate padlocked. He waited until after 8
a.m., but no one ever showed up.
Company records reflect that Graham and Lunsford, the
two employees who had voted ‘‘no’’ in the election, had
827D. J. ELECTRICAL CONTRACTING
44 Par. 9(o). California Dental Care, 272 NLRB 1153 (1984).
45 Par. 14(a) and (b). Harvard, supra.
46 Jingle denied asking anyone how he voted. I credit Welshans.
47 Par. 9(l).
48 Par. 9(n).
49 Interrogation: Aircraft Ornamental Iron, supra; statement: Harvard, supra.
50 Jingle testified that it was he who called Blacker. I credit Blacker.
51 Jingle denied making this statement. I credit Blacker.
52 Jingle admitted asking this question.
53 Par. 9(p).
54 Par. 9(q).
55 Par. 9(w), by amendment at the hearing. Following the General Counsel’s
motion to amend, Respondent was afforded opportunity to adduce further testi-
mony on the allegation. Respondent declined the opportunity. Ruling on the
motion, having been deferred, is granted.
56 Continued employment dependent on abandonment of union support:
Spartan Equipment Co., 297 NLRB 19 (1989); impression of surveillance:
Jumbo Produce, 294 NLRB 998 (1989). When an employer accuses an em-
ployee of specific union activity, these accusations constitute interrogation
about such activities and creates the impression of surveillance of such activi-
ties; interrogation: International Metal Co., 286 NLRB 1106 (1987).
been assigned to work at BCI on April 7 in place of Blacker
and Kartman. They worked that day a full 8 hours each, then
5 hours each the following day, a Saturday, to finish up the
job. Saturday overtime was a rarity and the fact that it was
required in this instance indicates no lack of available work.
On the evening of April 7 Kartman, unaware that he had
been replaced at the BCI job, called Jingle to ask him why
the gate had been locked that morning and why nobody
worked. He asked Jingle if he wanted him to work for him.
Jingle replied that Kartman was not allowed to work for Re-
spondent anymore because he was Union and the Union
would not allow Kartman to work for Respondent. The com-
plaint alleges this statement to be violative of Section
8(a)(1)44 and I so find. Kartman argued that the way he un-
derstood it, the Union would let Jingle’s employees finish up
the contracts that were in process under the wages and other
working conditions then in effect. Jingle did not reply, so
Kartman said that if Jingle could not make up his mind just
then, he should call Kartman Sunday night and let him know.
Jingle, however, did not contact Kartman on Sunday or ever
again. I find that Respondent terminated Kartman because of
his union activities, in violation of Section 8(a)(1) and (3) of
the Act, as alleged in the complaint.45
Though Welshans had been laid off the day before, Jingle,
on April 7, telephoned him and asked him to come to his
office. When Welshans arrived, Jingle asked him how he had
voted in the election.46 When Welshans admitted that he had
voted for the Union, Jingle stated that he was not sure
whether Welshans was one of the ‘‘no’’ votes or not, and he
wanted to be fair to the people who voted for him because
those people, he felt, he should keep working.
The complaint alleges that both the interrogation47 and the
statement48 were unlawful. I agree and find Respondent to
be in violation of Section 8(a)(1) in both respects.49
In the second or third week in April, Jingle’s secretary
called Blacker and informed him that Jingle wanted him to
turn in the key to Respondent’s gate. Blacker did so the fol-
lowing day. The requirement manifested Respondent’s con-
tinued intention not to use Blacker’s services again. Never-
theless, on April 27, Blacker called Respondent50 and made
an appointment through Jingle’s secretary to meet with him
at 4 p.m. that day.
When Blacker arrived, Jingle asked him why he had come.
Blacker replied that he had come to talk about his job. Jingle
asked, ‘‘Well, where’s your Union?’’ Blacker replied that the
Union had not yet called him, then asked Jingle if he was
‘‘ever going to sign union.’’ Jingle replied that he was not
sure, that he did not know if he was going to sign with the
Union. Apparently prompted by Blacker’s question, Jingle
accused Blacker of being a union spy and told him that he
had to be careful of him.51 When Blacker insisted that he
was interested in a job, that Jingle had his number and knew
where he lived, Jingle asked if Blacker would cross a picket
line if Respondent hired him back,52 thus implying that his
continued employment depended on the proper answer.
Blacker replied that he did not know, that if he crossed a
picket line, he would be out in the cold because the Union
would not want him, even if Jingle did sign a union contract.
Jingle countered that if Blacker stuck with him and did cross
a picket line, and Jingle then signed a union agreement, he
could make the Union take Blacker.
The complaint alleges that Respondent violated Section
8(a)(1) of the Act on April 27 by telling an employee that
his continued employment depended on his willingness to
forego union activities and membership,53 by creating the
impression of surveillance by telling an employee that he
thought the employee was a union informant,54 and by inter-
rogating an employee as to whether he would cross a picket
line.55
I find the facts, as reflected by the record, prove the alle-
gations and that Respondent violated Section 8(a)(1) in each
of the instances as described in the complaint.56
Jingle testified that in their discussion on April 27, Blacker
agreed that if faced with a picket line at a jobsite, he would
go through and work. Therefore according to Jingle, at the
end of their conversation, he offered Blacker employment,
starting 6 a.m., Monday, May 1. According to Blacker, Jin-
gle made his offer in a separate telephone conversation
which took place on Friday, the day after their conversation.
In any case, Blacker who had not worked since April 6, re-
ceived a call from the Union that weekend wherein
Stubenrod offered him work. He therefore called Jingle on
Sunday April 30 and left a message on the recording ma-
chine stating that he would not be returning to work for Re-
spondent, that Stubenrod had called him and was putting him
to work, and that he was no longer allowed to work for Re-
spondent until he signed a contract with the Union. Accord-
ing to Blacker he decided not to return to work for Respond-
ent because he did not appreciate being called a union spy
and because he would have had to go back as a nonunion
employee. For these reasons Blacker decided to accept the
Union’s offer.
On the morning of May 1 Jingle, who was unaware of
Blacker’s telephone message, waited with two other employ-
ees for Blacker to arrive. They waited 15 minutes but
Blacker did not show up. Jingle called Blacker at his home,
in case he had overslept, but no one answered the phone. He
drove to Blacker’s home, a block away from the shop, but
Blacker’s truck was not in the driveway. Jingle returned to
the shop, then the three went to work. That afternoon Jin-
gle’s secretary advised him of Blacker’s telephone message.
On or about May 4 Welshans called Respondent in order
to get his vacation pay and pension money. He spoke with
Jingle’s secretary who told him that he probably could get
his vacation pay but did not know about the pension money.
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
57 Par. 9(t).
58 Atlantic Foundry & Pattern Corp., 192 NLRB 745 (1971), affd. 83
LRRM 2024 (2d Cir. 1973).
Later, Jingle called Welshans and to]d him that he could give
him his vacation pay with no problem but could not release
his pension fund to him because it was still in the 401(k) ac-
count and would stay there until Welshans was no longer
employed by Respondent. When Welshans asked how he
could get his money, Jingle told him that he would have to
resign his employment with Respondent. Welshans then
asked how to go about doing this. Jingle replied that
Welshans should just send him a letter and when he received
it he, in turn, would send a letter to the bank. Welshans
asked if he could bring the letter down to Jingle’s office. Jin-
gle replied that Welshans could do that but, if he preferred,
Jingle could have his secretary type something up and
Welshans could come down and sign it. Welshans, appar-
ently anxious to get his money, asked if he could hand carry
the letter to the bank to get his money. Jingle replied that
he did not know but did not think so because there was pa-
perwork involved.
When Welshans arrived at Jingle’s office, Jingle handed
him the following letter:
Dear Dave,
I, John Welshans am resigning my position with
D. J. Electrical Contracting, Inc. effective llll
and request that all monies held in trust for me at the
Belmont County National Bank in the D. J. Electrical
Contracting, Inc. Pension Fund be distributed to me.
llllll llllll
Signed Date
Jingle told Welshans that the letter was just for the bank,
to sign it, and he would send it to the bank. He advised
Welshans that the bank would take care of everything else
from there. Welshans asked Jingle what date he should put
in and Jingle suggested he enter in the body of the letter, the
last day he worked. Welshans then entered ‘‘4–6–89’’ in the
space provided, then signed and dated the letter ‘‘5–4–89.’’
According to Jingle, Welshans read the letter through be-
fore signing it. According to Welshans, he is a poor reader,
so he trusted Jingle and signed the letter without first reading
it. He testified that he sometimes signs documents without
reading them because of his reading deficiencies. He also
testified that he never quit or resigned his job with Respond-
ent but, on the contrary, took every opportunity to work for
and keep working for Respondent. Welshans stated that had
he known what he signed was a resignation, he would never
have signed it.
As noted earlier, I have found that Welshans was termi-
nated by Respondent in violation of Section 8(a)(3) of the
Act, long before he signed the document on May 1. There-
fore, I find further that when he signed the May 4 document
which purports to be a resignation, he did so for the sole
purpose of obtaining his pension moneys.
The complaint57 alleges that Respondent violated Section
8(a)(1) by compelling Welshans to execute a letter of res-
ignation. I find that whether this incident is violative of the
Act depends on Jingle’s reason for using the term ‘‘resigna-
tion’’ when, in fact, he knew full well that Welshans had
been terminated because of his union sympathies and his
‘‘yes’’ vote in the recent election. If the term ‘‘resignation’’
was innocently and fortuitously used merely to obtain
Welshans’ pension money for him, I would find no violation.
On the other hand, if Jingle inserted the term in the letter
to disguise the fact that Welshans’ termination was
discriminatorily motivated, I would find a violation. In light
of subsequent events, described infra, wherein Respondent
refused to release Blacker’s pension moneys to him unless he
agreed to sign a similar letter, necessarily containing the term
‘‘resignation,’’ I find this incident to be calculated attempt
by Jingle to disguise the real reason for Welshans’ termi-
nation. His requirement that Welshans sign the resignation
letter before having his pension monies released is clearly in-
terference with Welshans’ Section 7 rights, and is violative
of Section 8(a)(1) of the Act. Moreover, it is akin to paying
an employee money to influence his testimony in an unfair
labor practice hearing, because it, like influenced testimony,
falsifies the record, an act which has been found to be ob-
structive of Board proceedings and violative of Section
8(a)(1) of the Act.58 Finally, compelling and employee, who
has been terminated for reason violative of the Act, to sign
a resignation clearly interferes with his access to Board proc-
esses and is violative for that reason as well.
Respondent argues that its prounion employees were laid
off because of a lack of work. Yet while Jingle, on May 4,
was convincing Welshans to sign a resignation letter in order
to secure his pension benefits, he was hiring or rehiring re-
placements. Thus, Respondent, on May 2, rehired Mark
McKeever, an employee who had been laid off the previous
February 2, in favor of retaining Kartman, Welshans, Bonar,
Blacker, and LaRoche past that date. It also hired new em-
ployees Annett on May 2 and Ramsey on May 5. Eventually,
it hired new employees Barnes, Smith, and Hubbard on June
7. If the prounion employees were laid off for lack of work,
there is no satisfactory explanation for Respondent’s failure
to recall them in May and June rather than hire new employ-
ees.
In late April, LaRoche received a letter from his health
plan insurer, dated April 26, stating that it had been informed
by Respondent that LaRoche’s group membership in the plan
would be terminated as of April 30. Receipt of this letter, in
light of the circumstances, was a clear indication to LaRoche,
that he never would work for Jingle again. After all, he had
been told not to call in for assignments, and had received no
calls to report for work. Obviously, LaRoche understood,
when he received this letter, that Respondent had terminated
him. Inasmuch as he was aware that he had accrued pension
benefits while employed by Respondent, he determined to
have these moneys returned to him. In order to do so, he sent
the following letter to Respondent on May 8:
Dear Mr. Jingle:
Due to personal reasons and lack of work with your
company I am resigning from employment, effective
immediately.
Please send the pension money due me for working
on Federal Prevailing Rate jobs as soon as possible.
829D. J. ELECTRICAL CONTRACTING
59 Record evidence does not, in any way, reflect that Respondent was the
source of LaRoche’s ‘‘common knowledge.’’
60 Par. 9(s).
61 Par. 9(r).
62 Atlantic Foundry, supra.
63 Par. 9(u).
If you have any questions, please call me at home
in the evening.
Sincerely,
Jay C. LaRoche
LaRoche testified that ‘‘it was kind of common knowledge
that if you ever wanted that [pension] money you had to re-
sign to get it. There wasn’t any other way.’’59 He also testi-
fied that he and his wife composed the letter and his wife
typed it.
The complaint alleges60 that Respondent violated Section
8(a)(1) of the Act ‘‘by unlawful]y compelling employee Jay
LaRoche to execute a letter of resignation.’’
I find that the letter was not a letter of resignation at all,
but rather an attempt on LaRoche’s part to obtain money in
his pension fund. He had been terminated over a month be-
fore. He knew it and Jingle knew it, so there clearly was no
purpose to the letter except to obtain the pension money by
use of the letter. On the other hand, there is no evidence that
Jingle or any other agent of Respondent compelled LaRoche
to write the letter and I recommend dismissal of the allega-
tion.
As of June 7, Blacker still had money in his pension fund,
earned while an employee of Respondent. In order to be able
to get this money, he had Stubenrod write a letter to Jingle
requesting same. The letter states:
Dear Mr. Jingle:
Please be advised that I have taken a job with an
employer signatory to a contract with the International
Brotherhood of Electrical Workers Local Union 141,
Wheeling, West Virginia.
Therefore, I am requesting the pension monies, with
interest, that have been put into my account during the
time that I was employed by D. J. Electrical Con-
tracting, Inc.
Very truly yours,
John E. Blacker
Unlike the letters previously submitted by Welshans and
LaRoche to obtain their pension money, Blacker’s letter did
not use the term ‘‘resignation’’ but nevertheless did get
across the message that Blacker was entitled to his pension
money because he was no longer employed by Respondent.
On Sunday, June 11, Jingle called Blacker and told him
that he could not accept the way Blacker’s letter was written,
that he needed another letter signed. He asked Blacker to
come to his office for that purpose. Blacker agreed to visit
Jingle’s office the following day to sign a letter to be left
with Jingle’s secretary.
The following day Blacker reported to Jingle’s office and
asked his secretary for the letter or form which Jingle had
left for him to sign. She then presented Blacker with a letter
which she said Blacker would have to sign if he wanted his
pension money. Blacker, after reading the letter, told her that
he preferred not to sign it there, but to take it home with
him, study it and ‘‘get it looked at.’’ Blacker refused to sign
the letter, then and there, because it literally stated that he
had resigned his job with Respondent when, in fact, he had
not. The secretary adamantly refused to permit Blacker to
take the letter out of the office. Blacker, just as adamantly,
refused to sign the letter unless he were first permitted to
take it home with him. Blacker then asked if he could at
least take a copy of the letter with him. The secretary agreed
and gave him a copy. Blacker never signed the letter because
it incorrectly stated that he had resigned his job.
The complaint61 alleges that Respondent violated Section
8(a)(1) of the Act by attempting to compel employee John
Blacker to execute a letter of resignation.
The facts reflect that Respondent refused to cooperate in
the release of Blacker’s pension money unless he singed a
resignation letter. I find, that Jingle, through his secretary,
took the described action in an effort to disguise Blacker’s
discriminatorily motivated termination, and that this action,
so taken, was therefore in violation of Section 8(a)(1) of the
Act.62
On June 12, Respondent sent to Paul Kartman a resigna-
tion letter for his signature, ostensibly to enable Kartman to
obtain his pension fund money. I find, however, that the res-
ignation letter was sent to Kartman for the same reasons that
the other discriminatees were requested to sign their resigna-
tions, and that the motive behind Respondent’s action was
violative of the Act, just as alleged in the complaint.63
Kartman did not sign the letter. Rather, on June 16, he had
the Union prepare a letter for his signature similar to the one
which Stubenrod composed for Blacker on June 7 and sent
it to Jingle. Respondent ignored Kartman’s request and he
never received any money from the pension fund. Respond-
ent’s refusal to cooperate in obtaining Kartman’s pension
money for him without his signing a resignation letter is fur-
ther evidence of discriminatory motivation.
In mid-June, Welshans visited Jingle at his home. He
asked Jingle to rehire him. Jingle refused stating that it
would not be fair to rehire Welshans because he would then
have to fire the employees whom he had hired since
Welshans’ termination.
On July 18, the Union filed the charge in Case 8–CA–
21970 alleging the 8(a)(3) violations contained in the com-
plaint issued in the instant case. The charge was served on
Respondent on July 20. On July 26, obviously prompted by
the unfair labor practice charge, Jingle suddenly decided to
respond to Blacker’s letter of June 7 three weeks after its re-
ceipt. Inasmuch as the June Letter had not used the magic
word ‘‘resignation,’’ Jingle supplied it in his July 26 con-
firmation letter: ‘‘You have taken another job and resigned
from D. J. Electrical Contracting, Inc.’’ This self-serving
statement is further evidence of ulterior motivation and its
timing, occurring 3 weeks after the letter it purports to an-
swer and just 1 week after the charge was filed, reflects a
transparent attempt to provide a bogus defense to the viola-
tions charged. Jingle’s letter did, however, promise to inform
the pension trust plan trustee that Blacker’s money should be
released.
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
64 The motion was denied August 9.
The Union had been certified as representative of Re-
spondent’s employees on June 1. On August 3, Respondent
filed a motion to revoke certification,64 the grounds cited:
The reason for the [motion] is that the individuals who
voted for the Union have either quit or resigned from
the Employer subsequent to the election. Not only does
the Union not have a majority, it appears that no one
who voted for it is presently employed.
Because the tally of ballots revealed that seven ballots
were cast in the election, five in favor of the Union and two
against the Union; and because Lunsford and Graham were
still employed as of the date the motion was filed, it is pat-
ently clear that the language contained in the motion, cited
above, is an admission that Respondent knew at the time,
which of its employees voted for the Union, namely, the five
alleged discriminatees. Respondent, throughout the hearing,
denied knowledge of prounion sympathies. I reject this denial
as incredible.
Following the certification of the Union on June 1 and the
Region’s denial of Respondent’s motion to revoke certifi-
cation on August 9, the parties held their first bargaining ses-
sion on August 10. At this meeting, Stubenrod, the Union’s
chief negotiator, at the time, requested copies of the Re-
spondent’s group medical and hospital agreement and pen-
sion plan and a list of current employees. On August 14, Re-
spondent provided a copy of its medical plan and promised
that a copy of the pension plan would follow. This was sent
on August 16.
The second bargaining session was held on August 24 and
the third on September 12. The third bargaining session was
attended by the attorneys for the parties as well as their prin-
cipals. At this meeting, Randall Vehar, the Union’s attorney
asked for certain information. Respondent’s attorney, Gerald
Duff, requested that Vehar put his request in writing and
Vehar agreed to do so.
Various subjects were discussed at the September 12 bar-
gaining session. The Respondent took the position that cer-
tain employees who had voted in the April 6 election and
were no longer employed by Respondent had quit. Vehar
asked if these employees had received all of their vacation
money. The Respondent was unable to answer this question.
Respondents’ 401(k) trust account was discussed. The Re-
spondent stated that when employees worked on Davis-
Bacon jobs, money was put in their 401(k) accounts but not
when they worked on non-Davis-Bacon jobs. However, the
copy of the pension plan, also referred to as the profit-shar-
ing plan, supplied to the Union on August 16, did not indi-
cate how much money was placed in the 401(k) plan per em-
ployee, even on Davis-Bacon jobs, so Vehar asked how that
was determined. Vehar was aware that on prevailing rate
jobs under Davis-Bacon, the employer was obligated to pay
a certain total wage but was free to determine how much
would be in actual wages and how much in pension and
other benefits. When Vehar asked what mix Respondent had
put into the Davis-Bacon formula, Respondent’s negotiators
could not answer his question.
Vacation was another subject discussed at this meeting.
Vehar stated that in order to be certain that Respondent’s
employees had received their proper vacation payments after
being terminated, he would have to see Respondent’s records
for 2 years. He argued that 2 years’ records would be nec-
essary because the longer an employee’s service, the more he
would be entitled to, and this was also the pension payments.
Two years of records would permit Vehar to see how these
plans were administered over a full year.
One question Stubenrod posed at the third meeting was
why Respondent would not pay prevailing rates on all jobs
instead of just Davis-Bacon jobs. Duff replied that to do this
would bankrupt the company. Duff, according to Vehar, ex-
panded on this statement by stating that he had already dis-
cussed the possibility of paying prevailing wages on all jobs
with some of his customers and that they had told him that
if they went with the Union’s pattern agreement, it would
cost them several hundred thousand dollars, and that on some
of their projects, they would lose money. Vehar testified that
if what Duff had told him were true, then maybe the Union
should look at its overall economic package. But, Vehar tes-
tified, he had been told the same thing by a lot of employers
and sometimes it was true and sometimes it was not. So, to
test Duff’s statement, he told him that if that was his posi-
tion, then prove it.
Gerald Duff took the stand and testified concerning the
September 12 bargaining session. He stated that when asked
why Respondent did not pay prevailing wage rates on all
jobs and he mentioned bankruptcy, he was merely jesting. He
added that he did not know if doing so really would result
in bankruptcy. He further testified that when discussing the
payment of prevailing wages on all jobs, Vehar had appar-
ently misunderstood him. Duff explained that what he had
said was that Respondent would lose hundreds of thousands
of dollars under these circumstances, not that his customers
would lose these amounts. According to Duff, Jingle would
lose money by paying prevailing rates on all jobs because he
would lose contracts. Expanding on this statement, Duff tes-
tified that Jingle had had a discussion with one of his cus-
tomers who had told him that he had no objection to dealing
with a union company and having union employees do the
work, hut that costs would have to remain stable, within
budgetary figures and competitive with other bids, based on
nonprevailing wages. Duff testified further, that if Respond-
ent’s association with the Union caused its labor costs to go
up and rates to customers to go up, so that Respondent was
no longer competitive with other bidders, then customers
could not guarantee that Respondent would have any work.
Duff said that there was no documentation to support the de-
scribed Jingle/customer conversation and admitted that he
could not recall whether he had told Vehar and Stubenrod
about it at the September 12 meeting.
On September 15 Vehar sent a letter to Duff in which he
described fully all the information which he had requested
verbally at the bargaining session of September 12. Only the
vacation trust was eventually provided. In his September 15
letter Vehar made the following requests for information
with explanations included as to why the information re-
quested was necessary:
Please provide me as soon as possible with the fol-
lowing documents: (1) the annual reports for each
fringe benefit plan—maintained by or on behalf of the
employer and/or its employees, including any employee
who was eligible to vote in the NLRB election—for the
831D. J. ELECTRICAL CONTRACTING
past two (2) years; (2) for the past two (2) years, any
and all summary plan descriptions, or modifications
thereof, for said fringe benefit plans; (3) a copy of the
vacation trust identified to us at the negotiating session
as well as any documents describing the benefits under
that trust, the manner in which the trust is administered,
the manner in which benefits are accrued, distributed,
and/or any other eligibility requirements, and financial
reports for the past two (2) years for said trust; and (4)
any documents reflecting the work rules (referred to in
your negotiating proposal) presently in effect, or any
prior such work rules that have been in effect at any
time during the past year. According to Mr. Jingle at
the negotiating session, these work rules address such
matters as dress codes, reporting off, specific duties, ab-
sences, etc. The employer, however, was unable to dis-
cuss the specifics of those rules on Tuesday, even
though they were part of your proposal. At Our session,
you agreed to mail copies of those rules to me as soon
as possible.
We also discussed the amount of contributions that
the employer has made to the 401 (k) plan, when per-
forming work on a Davis-Bacon project. The employer
at the negotiating session was unaware of the amounts
of retirement contributions that he made on such
projects. The 401(k) plan document provided to us does
not sufficiently describe the amount of contributions
made on behalf of employees by the employer to this
plan. As I indicated to you at our negotiating session,
Davis-Bacon, as I understand it, requires that the em-
ployer’s total compensation package, including wages
and benefits, be equal to the prevailing wage. The Act
does not require that the particular mix of wages and
benefits be of any particular ratio. Consequently, it is
unclear on what basis, if any, that the employer makes
decisions as to the amount of contributions it makes to
the 401(k) plan. Consequently, we hereby request docu-
ments from the employer that will show each Davis-
Bacon project worked on by any employee, who was
eligible to vote in the NLRB election, during the past
two (2) years, that tend to establish the identity of the
project, the amount of wages, as well as benefits, paid
to, or on behalf of, said employees, and the amount of
benefits paid by the employer into the 401(k) plan. This
information is necessary for several reasons. We need
this information in order to ascertain whether we should
demand in bargaining more specific requirements by
which the employer shall make contributions to the
401(k) plan (if the continued application of that plan to
unit employees becomes acceptable to the Union). In
order to assess the potential acceptability of this plan,
the Union must know how it has been administered in
the past (whether appropriately or inappropriately), the
de facto basis for making contributions to that plan, and
whether modifications in the plan and/or the contribu-
tion requirements thereto should be proposed in nego-
tiations. The information requested will assist the union
in establishing a position on these items. Additionally,
this information will help to determine whether unit
employees have properly been paid their Davis-Bacon
wages and benefits during the recent past. We believe
this information is necessary in order for us to ascertain
whether additional enforcement requirements in a col-
lective bargaining contract should be proposed. If the
employer has consistently, regularly and fully complied
with its statutory obligations, then it may not be as nec-
essary for the Union to consider stronger language in
a contract. On the other hand, if there had been con-
sistent and regular disregard for its statutory obliga-
tions, then the Union may need to consider stronger
contractual language in order to protect unit members’
statutory rights.
During negotiations, the employer’s president, David
Jingle, stated that he has already discussed the union’s
proposal with his customers and that acceptance of this
proposal would cost his customers an additional several
hundred thousand dollars, if the proposal were agreed
to by him. We hereby request any and all documents
and/or verbal information to justify Jingle’s assertions.
Additionally, David Jingle stated at the negotiating ses-
sion that one of the reasons he did not want to pay into
a retirement plan for non-Davis-Bacon jobs was that he
did not make money on all of his jobs. Consequently,
for the past two years (2), please provide us with any
and all documents that identify each non-Davis-Bacon
job on which present employees, or on which employ-
ees eligible to vote in the NLRB election, worked,
wherein the employer lost money. Further, provide any
and all documentation to establish the claim that the
employer lost money on those jobs. We believe this in-
formation necessary in order for the Union to ade-
quately access [sic] the employer’s position and to as-
sess whether the Union should insist that the employer
provide retirement benefits on all jobs, not just Davis-
Bacon jobs. We believe that this information, while jus-
tified solely on Jingle’s statements, should also be pro-
duced based upon your statement that the reason that
the employer did not want to pay the same wages on
non-Davis-Bacon jobs, as it does on Davis-Bacon jobs,
was to avoid bankruptcy.
If the employer can provide some, but not all, of this
information in an expeditious fashion, we request that
you provide the information in installments as soon as
you can.
Jingle testified that his secretary keeps a balance sheet in-
dicating what amounts are paid into the various funds for
each employee. These records also indicate the number of
hours worked, when the contribution is made and the check
number for each transaction. Jingle also testified that the
bank would customarily send to Respondent a semiannual re-
port on the status of each of the plans. Thus, information
which the Union requested verbally on September 12 and in
writing on September 15, concerning the pension or 401(k)
plan and vacation trust fund, was readily available.
Vehar credibly testified that during the September 12 bar-
gaining session, Respondent’s representatives took the posi-
tion that they wanted to incorporate the existing fringe ben-
efit program into the ultimate collective-bargaining agree-
ment and for that reason the Union needed the information
concerning the benefits in order to assess how the existing
plans had been administered in the past and thus determine
whether to consider maintaining those plans or to propose
changes.
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
With regard to the vacation plan, Vehar credibly testified
that he had been told at the September 12 bargaining session
that under the existing plan, different amounts of money
were contributed and different formulas were used to deter-
mine the amount of contribution to the vacation trust, de-
pending on whether the employees worked at a Davis-Bacon
prevailing wage project as opposed to a non-Davis-Bacon
nonprevailing wage project. However, when, at the Sep-
tember 12 meeting, he asked the Respondent’s representa-
tives whether all the employees who had voted at the April
6 election and who were no longer employed by Respondent,
had been paid their vacation pay, they were unable to answer
his question. For this reason Vehar asked for the vacation
trust information in order to see that the employees had been
properly paid and to determine whether or not the vacation
trust plan had been properly administered. This information,
Vehar credibly testified, was necessary to determine whether
the existing vacation plan should be included in the final
agreement.
With regard to the failure of Respondent to supply the
101(k) information, Vehar credibly testified that the Union,
without the requested information, was prevented from enter-
ing into any serious discussion about pensions because it
could not assess the plan which Respondent then had in
place.
Vehar testified that the request for financial reports con-
cerning the pension plan, the 401(k) plan, and the vacation
trust plan was necessary to determine if the money placed in
these funds had been properly invested, and whether the
money had been collected and appropriately attributed to the
employees.
With regard to the Union’s request for a list of Respond-
ent’s Davis-Bacon jobs, the wage rate paid to employees on
these jobs and the fringe benefits paid to each employee in
each plan, Vehar testified that this information was necessary
because at the September 12 meeting, Respondent’s rep-
resentatives stated that Respondent would continue to pay
Davis-Bacon rates on Davis-Bacon jobs and their own rates
on non-Davis-Bacon jobs. Inasmuch as Respondent’s em-
ployees would customarily travel between projects, some-
times several in a single day, some Davis-Bacon, some not,
that meant that an administrative process had to be in place
to ensure that employees were properly paid. Vehar wanted
sufficient information, 2 years’ worth, to be able to deter-
mine if time had been properly allocated in the past or if
new enforcement mechanisms or timekeeping methods would
have to be proposed.
The Union also needed this information to see if the em-
ployees were due additional fringe benefit payments and
whether they had been paid the prevailing rate. Vehar testi-
fied that some employees knew nothing about money being
paid into a retirement plan for them. Therefore, if they were
not being paid the prevailing wage rate entirely in cash and
they were not receiving any additional payments in their
401(k) or other plans, then Respondent was not in compli-
ance and the Union could force compliance once it had the
requested information. Two years of records would be nec-
essary, Vehar testified, to permit the Union to see if employ-
ees had been properly paid.
With regard to the Union’s request for a list of Respond-
ent’s non-Davis-Bacon jobs, the wage rate paid to employees
on these jobs and the fringe benefits paid to each employee
in each plan, Vehar testified that the reasons the Union want-
ed this information were the same reasons that he gave for
needing the same information for the Davis-Bacon jobs.
With regard to the Union’s request for time records or Re-
spondent’s estimate of the amount of time spent by each em-
ployee in the unit traveling from Respondent’s facility to the
first jobsite and from the last jobsite to Respondent’s facility,
on a daily basis, Vehar testified that through discussion with
employees, then through inquiries and responses to those in-
quiries, he became aware that the Respondent’s practice was
not to pay employees for loading up and driving to the first
job in the morning or from the last job in the evening. Dur-
ing negotiations, Respondent took the position that it wanted
this practice to carry on into any new contract.
Vehar testified that under the Fair Labor Standards Act
Respondent’s employees should have been paid for the travel
hours in question as well as for loading time. He stated that
he needed the information requested because Respondent
wanted to continue its practice of not paying for this travel
and loading time under any new contract and Vehar wanted
to determine how much employees would lose if Vehar
agreed with Respondent’s position. Vehar also stated that he
was not sure that if the Union agreed to permit Respondent
to continue its practice, that it would not be failing to rep-
resent the employees properly. Second, Vehar stated that he
wanted the requested information to determine the cost to the
Respondent of paying this travel and loading time and if it
cost very much, the Union might ask for a lesser wage.
Eventually, Respondent advised the Union that it did not
maintain the type of records requested and Vehar told Re-
spondent’s representative to start maintaining records from
that time forward. Jingle replied that he could maintain such
records on his timecards but would not force his employees
to keep them. No estimates were furnished to the Union as
it had requested in case no records were available.
According to Vehar, timecards were subpoenaed for the
hearing and from these Vehar could estimate the traveltime.
He stated that if the Union were supplied with the informa-
tion contained on the timecards, the Union would be willing
to make its own estimates.
With regard to the Union’s request for information as to
whether Respondent had provided insurance coverage for
employees in the unit, whether certain employees had not re-
ceived coverage, and if not, why not, Vehar testified that at
the September 12 meeting, Respondent proposed that the ex-
isting health insurance plan be made part of any new con-
tract. He further testified that when he requested to see a
copy of the plan, he was told that there was none available.
Arrangements were then made, however, for Vehar to re-
ceive a copy of the rules governing hospitalization coverage,
and eventually, on September 26, a copy of the rules was
sent. After reading the rules, Vehar concluded that unit em-
ployees, as of April 6, should have been covered but when
he asked some of them, these employees denied having re-
ceived coverage. Having heard different reports from man-
agement than from certain employees, Vehar requested from
the Respondent the information described, the purpose being
to determine how the rules covering health insurance were
applied and whether such rules were being properly fol-
lowed. He wished to determine who was covered and who
was not. Apparently, Vehar felt that the rules alone were not
adequate to his purpose.
833D. J. ELECTRICAL CONTRACTING
65 Par. 15.
66 NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truit Mfg.
Co., 351 U.S. 149 (1956); Eskimo Radiator Mfg. Co., 255 NLRB 304 (1981),
enfd. 688 F.2d 1315 (9th Cir. 1982); M. Scher & Son, 286 NLRB 688 (1987);
Pence Construction Corp., 281 NLRB 322 (1986); Western Electric, 225
NLRB 1374 (1976).
On September 29, the parties held their fourth bargaining
session. Then, in contemplation of the next bargaining ses-
sion, Vehar sent a letter dated October 3, requesting addi-
tional information. Some of the information was similar to
that requested earlier but some was quite different. Thus, for
the first time, Vehar requested information concerning the
firm, Ohio Valley Monitoring or Home Monitoring.
With regard to this request, Vehar testified that the basis
for his request was his suspicion that Jingle was doing unit
work through Ohio Valley Monitoring, a company which he
also owned and managed. Vehar admitted receiving a small
amount of the information requested and Jingle admitted re-
fusing to give the Union the details it had requested on
grounds that the two companies were entirely separate and
that Respondent’s employees do not and will not perform
services for Ohio Valley Monitoring.
During the various bargaining sessions which took place
prior to October 3, Respondent referred to the existence of
certain work rules, over and above the ones pertaining to in-
surance which it had already supplied. When the Union re-
quested copies of these work rules and none were forth-
coming, Respondent was finally forced to admit that they
simply did not exist.
At the fifth bargaining session, on October 12, Vehar
again asked about Respondent’s 401(k) contributions. The re-
quested information, however, was not forthcoming and on
October 16 the Union filed the 8(a)(5) charge in the instant
proceeding.
On November 21 the parties held their sixth bargain ses-
sion. At this meeting Respondent provided the Union with a
copy of its vacation trust agreement with the Belmont Coun-
ty National Bank. It did not, however, provide any of the in-
formation requested by the Union on September 15 and
thereafter. Vehar was told at this meeting, with regard to the
401(k) information requested, that the Respondent maintained
a sheet that reflected a breakdown of the employees’ pre-
vailing wage rates which Jingle used as a guideline. Vehar
was not, however, shown a copy of this sheet although he
requested one. He wanted to determine if any money had
been placed in employees’ accounts and, if so, whether the
amount was correct. He wanted also to determine whether
tighter administrative mechanisms were necessary to keep the
records straight. In reply to his request for information, the
Respondent offered to supply the Union with the annual
401(k) report if the Union would withdraw the unfair labor
practice charge. The charge was not withdrawn and the
Union did not receive the 401(k) annual report.
Concerning the refusal to bargain allegation of the com-
plaint,65 I find that the Union, by written demand, requested
Respondent to furnish it with information necessary for, and
relevant to, the Union’s performance of its function as the
exclusive collective-bargaining representative of an appro-
priate unit of Respondent’s employees. I further find that Re-
spondent failed and refused to furnish the Union with the in-
formation requested and thereby is in violation of Section
8(a)(5) and (1) of the Act.66
CONCLUSIONS OF LAW
1. The Respondent, D. J. Electrical Contracting, Inc., is an
employer engaged in commerce an in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent, through its president, David Jingle violated
Section 8(a)(1) of the Act by the following actions and con-
duct undertaken in response to its employees’ union activi-
ties: interrogating an employee as to whether he had signed
a union card and several employees as to how they voted in
the representation election; telling an employee that two
other employees, who had been terminated because of their
union activities, would not be working for the company even
if the Union did not come in; telling employees that they
would no longer work year round if the Union obtained rec-
ognition; stating to an employee that if the Union got in,
there would only be two journeyman cards handed out; tell-
ing an employee that the company had no intention of sign-
ing an agreement with the Union; threatening employees that
if the Union won the election, the company would cut its
work force, but if the Union lost the election, the company
would keep its work force or expand it; threatening employ-
ees with termination if the Union were to win the election;
threatening employees by telling them that those who voted
‘‘no’’ in the election would be retained as employees and
those who voted ‘‘yes’’ in the election would be terminated;
telling an employee that he was not allowed to work for the
company because he was union and that the Union would not
allow him to work for the company; telling an employee that
his continued employment depended on his willingness to
forego union activities and membership; creating the impres-
sion of surveillance by telling an employee that he thought
the employee was a union spy; interrogating an employee as
to whether he would cross a picket line; and attempting to
compel and compelling employees to execute letters of res-
ignation for reasons violative of the Act.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by terminating Jay LaRoche, Dana Brent Bonar, John
Welshans Jr., John E. Blacker, and Paul Kartman and by de-
nying John Blacker steady employment during the last sev-
eral days preceding his termination, all because of the union
activities of these employees.
5. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All journeymen, wiremen, apprentices, helpers and
truck drivers employed by the Employer out of its
54099 Pike Street, Neffs, Ohio facility, but excluding
all office clerical employees, estimators, superintend-
ents, and all professional employees, guards and super-
visors as defined in the Act.
6. On June 1, the Union was certified as the exclusive col-
lective-bargaining representative of the employees in the
above-described unit.
7. At all times since June 1, 1989, the Union, by virtue
of Section 9(a) of the Act, has been, and is, the exclusive
representative of the employees in the above-described unit
for the purposes of collective bargaining with respect to rates
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
67 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 objec-
tions to them shall be deemed waived for all purposes.
68 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
of pay, wages, hours of employment, and other terms and
conditions of employment.
8. Since September 15 and October 3, 1989, and at all
times material thereafter, the Respondent has refused to fur-
nish the Union with information concerning the present and
immediate past terms and conditions of employment of em-
ployees in the above-described unit, which information is
necessary for, and relevant to, the Union’s performance of its
function as the exclusive collective-bargaining representative
of the employees, in violation of Section 8(a)(5) and (1) of
the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily terminated
Jay LaRoche, Dana Brent Bonar, John Welshans Jr., John E.
Blacker, and Paul Kartman and denied Blacker steady em-
ployment during the last several days preceding his termi-
nation in violation of Section 8(a)(3) and (1) of the Act, it
shall be ordered that these terminated employees be offered
immediate and full reinstatement to their former positions,
displacing, if necessary, any replacement or, if not available,
to substantially equivalent positions without loss of seniority
or other privileges. It shall be further ordered that these em-
ployees be made whole for lost earnings resulting from the
discrimination against them by payment of a sum of money
equal to that which they would have earned from the initial
date of termination, and in Blacker’s case from the initial
date of denial of steady employment, to the date of a bona
fide offer of reinstatement or to the date the above-described
discriminatory activity ceased or ceases, less net interim
earnings during that period. Backpay shall be computed in
the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
It shall be further ordered that Respondent, on request, fur-
nish the Union the information requested in its letters of Sep-
tember 15 and October 3, 1989.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended67
ORDER
The Respondent, D. J. Electrical Contracting, Inc., Neffs,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their union ac-
tivities.
(b) Threatening employees with termination or loss of
working time in retaliation for their union activities.
(c) Creating the impression of surveillance of employees’
union activities.
(d) Compelling employees to execute letters of resignation
for reasons violative of the Act.
(e) Terminating employees or denying them steady em-
ployment because of their union activities.
(f) Refusing to furnish the Union with information con-
cerning the terms and conditions of employment of employ-
ees in the unit which it represents.
(g) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Jay LaRoche, Dana Brent Bonar, John
Welshans Jr., John Blacker, and Paul Kartman immediate
and full reinstatement to their former positions, displacing, if
necessary, any replacement, or, if not available, to a substan-
tially equivalent position without loss of seniority or other
privileges.
(b) Make Jay LaRoche, Dana Brent Bonar, John Welshans
Jr., John Blacker, and Paul Kartman whole for lost earnings
resulting from the discrimination against them by payment of
a sum of money equal to that which they would have earned
from the initial date of termination, and in Blacker’s case
from the initial date of denial of steady employment, to the
date of a bona fide offer of reinstatement or to the date the
above-described discriminatory activity ceased or ceases, less
net interim earnings during that period. Backpay is to be
computed in the manner set forth in the remedy section of
the decision.
(c) On request, furnish the Union the information re-
quested in its letters of September 15 and October 3, 1989.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records, financial data, and memo-
randa necessary or helpful to determine the amount of back-
pay due under the terms of this Order.
(e) Post at its facilities in Neffs, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’68 Copies of the notice on
forms provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where Respondent customarily
posts notices to its employees. Respondent shall take reason-
able steps to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.