Debber Electric

National Labor Relations Board - Board Decisions

Apr 14, 1994

313 N.L.R.B. 1094 (N.L.R.B. 1994)

1094
313 NLRB No. 186
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent entitled its exceptions and brief as an ‘‘Appeal.’’
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. The Respondent did not spe-
cifically except to any of the judge’s findings concerning complaint
subpars. 5B, C, F, G, H, J, K, L, and O beyond its exception to the
finding that David Von Behren was a supervisor and its exception
to the remedial order as a whole.
3 We deny the General Counsel’s motion to strike the exceptions
of the Respondent, which is represented by its owner appearing pro
se, but we give no weight to asserted facts that are not in the record.
1 I note that while the name of the Respondent is spelled
‘‘Debber,’’ its owners spell their name with an ‘‘o.’’
2 The charge in the complaint case was filed on May 20 and
amended on June 29. The complaint was issued by the Regional Di-
rector for Region 14 on June 29 and was amended in writing on Au-
gust 17 and again at the beginning of the hearing.
3 Although the Union challenged Von Behren’s vote on the ground
that he is a statutory supervisor, and Respondent made a like claim
about Henning, Respondent stated at the hearing that it did not truly
believe that either man qualified as a Sec. 2(11) supervisor, but that
if Von Behren was deemed to occupy such a status, then so should
Henning.
4 Certain changes in the transcript have been noted and corrected.
5 There is no dispute that Respondent is an employer engaged in
commerce within the meaning of Sec. 2(2), (6), and (7) of the Act,
or that the Charging Party is a labor organization as defined in Sec.
2(5).
Joan Doebber, d/b/a Debber Electric and Local 1,
International Brotherhood of Electrical Work-
ers, AFL–CIO. Cases 14–CA–21963 and 14–
RC–11158
April 14, 1994
DECISION, ORDER, AND DIRECTION
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On July 14, 1993, Administrative Law Judge Ber-
nard Ries issued the attached decision. The Respondent
filed exceptions and a supporting brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and brief and has decided to af-
firm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Joan Doebber, d/b/a
Debber Electric, St. Louis, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
DIRECTION
It is directed that Case 14–RC–11158 is remanded
to the Regional Director for Region 14 who shall,
within 14 days from the date of this Decision, Order,
and Direction, open and count the ballot of Bruce
Henning. The Regional Director shall then serve on the
parties a revised tally of ballots and issue the appro-
priate certification.
Lynette K. Zuch, Esq., for the General Counsel.
Joe Doebber and Joan Doebber,1 of St. Louis, Missouri, for
the Respondent.
James I. Singer, Esq. (Schuchat, Cook & Werner), of St.
Louis, Missouri, for the Charging Party.
DECISION
BERNARD RIES, Administrative Law Judge. This matter
was heard in St. Louis, Missouri, on January 26 and 27,
1993. The complaint alleges that Respondent’s agents com-
mitted various violations of Section 8(a)(1), all but one in
May 1992 (the year to which all dates hereafter refer unless
otherwise indicated), and also, in May, violated Section
8(a)(3) in two discrete ways.2 On June 19, an election was
held among Respondent’s journeymen and apprentices, re-
sulting in a tally of two votes for the Charging Party, two
votes for the Congress of Independent Unions, and two chal-
lenged ballots. In a report issued on July 2, the Regional Di-
rector consolidated the representation case with the complaint
case and referred the two challenged ballots (of Bruce
Henning and David Von Behren) to me for resolution.3
Briefs were received from all parties on or about March
3. Having reviewed the entire record,4 the briefs, and taking
into account my recollection of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT5
I. BACKGROUND FACTS
Respondent is a small firm engaged as a subcontractor in
performing (primarily) electrical and (secondarily) heating,
air conditioning, and ventilation work (HVAC) in St. Louis.
The record shows Joan Doebber to be the firm’s owner and
Joe Doebber to be its manager. At material times, Joan
Doebber was in charge of office work for Respondent, but
apparently had little or nothing to do with the performance
of construction work. Joe Doebber, who was 72 years old at
the time of the hearing, had intended to retire in 1986, and
the business was sold. However, on further consideration, the
Doebbers bought the business back some 1-1/2 years later.
As of May, aside from the Doebbers, the firm employed
six individuals: electrician and alleged supervisor and agent,
David Von Behren; four employees principally engaged in
electrical work (Timothy Motherway, Scott Wilke, Thomas
Reilly, and Roger Stranghoener); and Bruce Henning, who
was the Respondent’s only qualified HVAC employee.
II. WERE VON BEHREN AND/OR HENNING STATUTORY
SUPERVISORS?
Most of the alleged 8(a)(1) violations are said to have
been committed by Von Behren, whose supervisory status is
1095DEBBER ELECTRIC
6 As discussed later, under Board precedent Respondent may also
have violative statements attributed to it if Von Behren is found to
have been an agent or held out as a conduit for transmitting informa-
tion to the other employees.
7 There is evidence that he once recommended the hire of a friend
and suggested a wage figure, but such evidence is too isolated to
be useful. Bowne of Houston, 280 NLRB 1222, 1223 (1986).
8 In the following factual findings, I rely essentially on the credited
testimony of General Counsel’s witnesses (Henning, Motherway, and
Wilke), each of whom seemed more reliable than Respondent’s wit-
nesses Reilly, Stranghoerner, Von Behren, and Joe Debber. I further
rely, in making these findings, on admissions and concessions made
by the witnesses for Respondent.
9 The General Counsel’s generally fair and helpful brief errs in
flatly stating that ‘‘Von Behren admitted that employees telephoned
him to get their work assignments.’’ (Tr. 358–359, 363–364.) In the
first passage cited, Von Behren answered the question ‘‘No. Not
hardly. Once in a while, maybe . . . . Joe may tell employees to
call [him].’’ The second citation refers to a long job on which appar-
ently only Von Behren and Motherway primarily worked.
10 Von Behren testified that he ‘‘believed’’ Doebber was in the
hospital at that time.
denied by Respondent. Whether or not Von Behren occupies
such a status is material (although not vital)6 to the validity
of the 8(a)(1) violations attributed to him. Accordingly, we
shall first examine the evidence regarding Von Behren’s su-
pervisory status.
A. Was Von Behren a Supervisor?
Section 2(11) of the Act defines a ‘‘supervisor’’ as fol-
lows:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
It is accepted that the powers enumerated in Section 2(11)
are to be read in the disjunctive. NLRB v. McEver Engineer-
ing, 784 F.2d 634, 642 (5th Cir. 1986). Thus, if an employee
possesses any one of the 13 kinds of authority set out in Sec-
tion 2(11), he is a ‘‘supervisor’’ for purposes of the Act (as-
suming the final clauses of the provision are satisfied). In
NLRB v. Security Guard Service, 384 F.2d 143, 145 (5th Cir.
1967), Judge Goldberg referred to the difficulty of applica-
tion of this definition as ‘‘persistently vexing.’’ Although the
passage of 26 years has not made the question less vexing
in some cases, the basis for finding Von Behren to be a stat-
utory supervisor here, while narrow, nonetheless seems stur-
dy.
Of the statutory powers listed in Section 2(11), it may fair-
ly be said that Von Behren arguably possessed only two of
them at the most: the authority to ‘‘assign’’ and to ‘‘respon-
sibly direct’’ other employees.7 As the quoted statutory defi-
nition shows, the exercise of either power must be accom-
panied by independent judgment and be performed in the in-
terest of the Respondent.8
Von Behren had had electrical experience for more than
the 12 years (according to the stipulation, Jt. Exh. 6) that he
has worked for Respondent (and its interim owner), and is
the most experienced electrician employed by Debber Elec-
tric. He has known the Doebbers, first as neighbors, almost
all his life, and began helping Joe Doebber at the age of 12.
When, around 1987, Doebber decided to unretire and buy the
business back, Doebber and Von Behren talked about the lat-
ter buying into the business, and, although that transaction
was never consummated, it is still, according to Von Behren,
a ‘‘possibility.’’
Joe Doebber, as noted, is 72 years old. While the estimates
in the record vary, it is clear that he spends a scant amount
of time actually present at Respondent’s jobs, which may
number up to four or five concurrently. The record leaves the
clear impression that, although Joe Doebber is active in the
business in estimating and bidding, and acts as the overall
supervisor, Von Behren is the one who keeps it running.
Tim Motherway, who began employment in January 1992
and was laid off 5 months later, testified that he would call
Von Behren every morning to find out where he should go
to work, until near the end of his employment, when Von
Behren told him to call Doebber instead. Scott Wilke, em-
ployed since December 1991, gave similar testimony. While
this testimony does not exclude the possibility that Doebber
first told Von Behren where the employees should report,
Doebber testified on cross-examination that ‘‘other employ-
ees called either [him] or David Von Behren to find out
where they were going to work,’’ which strongly suggests
that Von Behren possessed some discretion in this matter.9
In his pretrial affidavit, Doebber averred that Von Behren
will ‘‘normally be the person in charge of the electrical jobs
where he is working.’’ Doebber described Von Behren at the
hearing as a ‘‘pinwheel type,’’ i.e., an individual who may
be called upon ‘‘to go from job to job to job.’’ On cross-
examination, Doebber stated that there were other employees
on these jobs ‘‘[o]nly on rare occasions.’’ The limited work
schedules in evidence (1/11/92–5/29/92) show that Von
Behren occasionally moved from job to job on the same days
that other employees were on the jobs (e.g., on 1/27/92, he
worked on 5 different jobs on 7 separate occasions).10
Stranghoerner, employed since March 1990, testified that
he received his assignment by calling Doebber every morn-
ing; Reilly, with an employment history since October 1990,
gave similar testimony. Stranghoerner testified to an excep-
tion, however: ‘‘[U]nless Dave [Von Behren] told me to call
him and see if he was done with his job the day before and
I should pick up material for his job.’’ Stranghoerner’s affi-
davit distinguished between the ‘‘60 percent’’ of Von
Behren’s time spent in ‘‘supervising’’ jobs and the ‘‘40 per-
cent’’ doing ‘‘actual work.’’ Stranghoerner, who made every
effort at the hearing to reduce Von Behren to ‘‘leadman’’
status, nonetheless testified that Von Behren would be ‘‘in
charge of the job. If there is [sic] any questions or any prob-
lems, he would handle them . . . [H]e would be responsible
for directing employees and seeing that the work was done’’
(‘‘on the job that he’s lead man, yes.’’).
Motherway credibly testified that when they would begin
a job, Von Behren ‘‘would go in and talk to whoever was
owner of that particular building.’’ Von Behren would then
tell the waiting employees to unload the truck, and would
take them ‘‘through the building and show us where he
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Henning had a key to the storage area which was taken away
from him, as discussed infra.
12 Von Behren testified that he had the cards because 5 or 6 years
ago, when Doebber had a line called Royal Filters, Von Behren
needed cards because he was more of a ‘‘service type installer and
salesman.’’ However, after Royal Filters was dropped, new cards not
mentioning that line were made up for him: ‘‘Either I asked for
them or—you know, [Doebber] just had them made up. I can’t re-
member.’’
wanted us to put certain devices and where he wanted the
pipe run and how he wanted it done. . . . He would assign
us to jobs. He would assign different people different things
that he wanted done.’’ In this regard, the testimony of Re-
spondent’s witness, Stranghoerner, is important: Von Behren
would assign work ‘‘based on employees’ experience and
skill.’’ Further, Stranghoerner conceded, Von Behren would
check employees’ work if he saw something that ‘‘had to be
corrected or needed to be checked,’’ and, if the work needed
to be redone, Von Behren would direct the employee to fix
it.
Von Behren conceded that his discretion was relied on by
Doebber when he testified that Doebber will ask him if he
is ‘‘going to need a certain employee on the job.’’ In line
with this evidence of discretion is Motherway’s testimony,
not specifically contradicted, that if the employees finished
their work prior to quitting time, and Von Behren was still
on the job, they would ask him what else he wanted done.
If Von Behren was not present, they would contact him by
calling his pager—aside from Joe Doebber, Von Behren was
the only employee who had a ‘‘beeper’’—and, without con-
sulting anyone else, ‘‘he would either tell us to go to another
job or he would just send us home.’’
Doebber testified that in May he spent about 2 hours
(‘‘That would be a good number’’) a day going around to
the various projects, which averaged three–four jobs at the
time. Reilly, clearly biased in Respondent’s favor, nonethe-
less testified that Doebber is not usually present on the
smaller jobs; on the larger ones, he might show up for 30–
60 minutes on the first day of the job; and ‘‘maybe a week
later,’’ he will return to check on the progress of the job, and
weekly thereafter. Reilly also stated in his affidavit that Von
Behren ‘‘is in charge of 60 percent of the jobs in which two
or more employees are employed’’ and, on such jobs, spends
‘‘about 60 percent of the time supervising jobs and about 40
percent doing actual work that other employees did.’’ In an
affidavit given on June 30, Doebber stated his ‘‘estimate’’
that Von Behren ‘‘spends about two-thirds of his work time
where he was over one or more employees who were sent
to help him on electrical work.’’
The evidence seems quite clear that Von Behren had, and
exercised, the authority both to assign and to responsibly di-
rect employees, independently and in the interest of the Re-
spondent. Juniper Industries, 311 NLRB 109 (1993)
(Aponte), and cases cited; Gem Urethane Corp., 284 NLRB
1349 (1987) (Rygelski). The secondary (nonstatutory) indicia
of authority to which the Board often refers, Juniper Indus-
tries, supra at 109, further cement the notion that Von
Behren was something more than a leadman.
He was known to employees as a ‘‘supervisor’’ and, ac-
cording to Motherway’s uncontroverted testimony, Doebber
so characterized him when Motherway was applying for a
job (‘‘[H]e said he would have to talk to his supervisor Dave
to see if he needed any more men on the job’’). If an em-
ployee arrived late for work, Von Behren might tell him to
get to work early the next day. According to Motherway,
Von Behren had to give permission for an employee to leave
early. Von Behren’s affidavit, which he repudiated in this re-
spect at the hearing, states that if he tells Doebber that he
does not need an employee, Doebber may tell him that the
employee will not work the next day.
Von Behren admitted at the hearing that while sometimes
Doebber tells him how a job should be done, at other times
he himself will decide ‘‘methods-wise.’’ Doebber is teaching
Von Behren how to estimate bids, and he evidently actually
has made bids with Doebber’s approval (‘‘I don’t bid a thing
that don’t go through Joe’’). Von Behren, as noted, is the
only employee other than Doebber who has a pager. He re-
ceives the highest hourly wage ($12 per hour), not much in
excess of the only HVAC workman, Henning, who was paid
$11.50, but substantially more than Reilly ($10) and
Stranghoerner ($9.50); and because of the significant amount
of overtime Von Behren works, Doebber estimated at the
hearing that Von Behren earned $28,000–$29,000 in 1991
compared to Henning’s $21,000–$22,000. Von Behren’s
year-to-date earnings as of May 15 were $13,110, in contrast
to Henning’s $8,567. Von Behren had a set of keys to the
office and storage area, as do the Doebbers.11 Aside from the
Doebbers, Von Behren was the only employee who had a
business card.12
Although I conclude that Von Behren was a statutory su-
pervisor and that the challenge to his ballot should be sus-
tained, I also conclude that, even absent such a finding, for
purposes of the 8(a)(1) allegations, it was reasonable for em-
ployees to believe that Von Behren ‘‘spoke for and acted on
behalf of company management.’’ Dentech Corp., 294
NLRB 924, 925 (1989); Community Cash Stores, 238 NLRB
265 (1978). At the hearing, Doebber declared that he ‘‘abso-
lutely’’ relies on Von Behren ‘‘to relay information from
[him] to other employees.’’ The record would have forced
this conclusion even without Doebber’s admission, and even
if Von Behren were not rather clearly a supervisor, he would
still be regarded as an agent whose statements may be attrib-
uted to Respondent. As we further explore the 8(a)(1) allega-
tions, other evidence bearing on Von Behren’s status will
emerge.
B. Was Henning a Supervisor?
The case also raises the question of whether Bruce
Henning was a statutory supervisor. The answer is clearly in
the negative.
Henning was, as indicated, the only experienced HVAC
employee, spending some 80 percent of his time on such
work (and working by himself on that work 90 percent of
the time) and the other 20 percent on electrical work (on
which he worked alone perhaps 75 percent of the time).
When other employees worked with him, he did some ‘‘di-
recting’’ of them ‘‘the way a journeyman would tell an ap-
prentice’’ what to do.
At best, the record shows that, on occasion, Henning was
a leadman. As noted earlier, Respondent does not actually
believe that Henning had been a supervisor (he was dis-
charged on June 26), but it raises the issue on the theory that
if Von Behren was a supervisor, so must Henning be. How-
1097DEBBER ELECTRIC
13 The document in evidence, G.C. Exh. 2, is an initiation fee and
dues deduction card signed by Henning on December 11, 1991. Von
Behren corroborated that he had solicited it. There is also a docu-
ment, G.C. Exh. 3, which shows that in December 1991 an addi-
tional $75 was added on one occasion to Henning’s weekly wage
and then simultaneously deducted.
14 No claim of unlawful action is founded on this evidence.
15 This statement, as well as the entire conversation, adds confirm-
ing evidence of Von Behren’s status.
16 Again, it also reflects on Von Behren’s supervisory status.
ever, the evidence shows that the two men occupied quite
distinctive capacities in May 1992. I conclude that Henning
was simply an employee for purposes of the Act.
III. THE 8(A)(1) ALLEGATIONS
A. Background
Respondent has apparently never been party to a collec-
tive-bargaining agreement with a union. There is evidence,
however, that it has in the past had some sort of relationship
with an organization called the Congress of Independent
Unions (CIU). Henning testified that in December 1991 Von
Behren told him that he had to join the CIU and that
Doebber would pay the dues for him. Complying with Von
Behren’s instruction, Henning signed a card.13 There is no
indication in the record that this evident effort to seek refuge
under the shelter of the CIU ever yielded results, although
one would suppose that Doebber approached all his employ-
ees with the same objective.14
The record discloses that in March and April Henning
spoke to other employees about being represented by Local
1, IBEW. He then contacted Local 1 Agent Larry Hepburn.
By May 7, Henning, Motherway, and Wilke had signed au-
thorization cards, and Stranghoerner had refused to do so.
On May 11, the parties have stipulated, Hepburn and a
colleague visited Doebber at Respondent’s office and handed
him a letter claiming majority status and requesting bargain-
ing. We will consider the allegations of the complaint assert-
ing that Joe Doebber, Joan Doebber, and Von Behren there-
after violated Section 8(a)(1) of the Act.
B. The Alleged Violations
Complaint subparagraph 5A: On May 12, in the course of
an early morning telephonic discussion about Henning’s as-
signment that day, Doebber said that he had heard from
Local 1 the previous day and told Henning, ‘‘I guess I’m
going to have to get out of the air conditioning business.’’
He did not elaborate, and the conversation ended.
On cross-examination, Henning agreed that in ‘‘the early
part of 1992,’’ he and the Doebbers had had conversations
about some expensive new Environmental Protection Agency
(EPA) regulations which were to be put into effect around
July 1 concerning ‘‘how we handled the HVAC business.’’
However, Doebber had not previously spoken of getting out
of the air conditioning business and the May telephone con-
versation did not refer to the EPA rules, but rather only men-
tioned the Union. In that setting, the unadorned statement
that ‘‘I guess I’m going to have to get out of the air condi-
tioning business’’ plainly constitutes a threat, especially
when uttered to the only air conditioning technician in Re-
spondent’s employ.
Complaint subparagraphs 5B and C: According to the
credited testimony of Motherway, on May 12 Von Behren
phoned him at home in the morning and asked, ‘‘Tim, do
you know anything about the union?’’ Motherway said he
did not. Von Behren then asked if Henning had said anything
to him about the Union, and got another negative reply. Von
Behren persisted: ‘‘Tim, this is a pretty serious situation
going on right now. Don’t lie to me.’’ Lying, Motherway
said he was not. Von Behren then said that he had already
talked to Reilly and still had to speak to Wilke and
Stranghoerner, and Doebber had talked to Henning.15 Von
Behren went on to say that if the shop went union, ‘‘We
wouldn’t have no work, that the only reason the Union is
going after us is to put their own men back to work,’’ and
that Joe Doebber would ‘‘probably close his doors.’’ Von
Behren did not contradict this testimony.
The fact that Motherway lied to Von Behren indicates that
the questioning about the union activity was coercive,
Rossmore House, 269 NLRB 1176 (1984), as does the relat-
ed and unsubstantiated claim that Doebber would ‘‘probably
close his doors.’’16 The Supreme Court has held that when
an employer makes a prediction as to the effect he believes
unionization will have upon his company, it ‘‘must be care-
fully phrased on the basis of objective facts to convey an
employer’s belief as to demonstrably probable consequences
beyond his control. . . .’’ NLRB v. Gissel Packing Co., 395
U.S. 575, 618 (1969). The only testimony resembling an ob-
jective basis for Von Behren’s stated belief was Von
Behren’s statement that 3–4 years before, when the IBEW
was picketing a Doebber job, he asked Business Representa-
tive Hepburn if he could join the Union, and Hepburn replied
that the Union had ‘‘enough guys in the hallway that we
can’t get out to work.’’ Although Hepburn was not called to
give contrary testimony, I seriously doubt that such a con-
versation occurred; at any rate, such a stale comment is of
no moment here.
The coercive interrogation and threat by Von Behren con-
stitute violations of Section 8(a)(1). Ideal Elevator Corp.,
295 NLRB 347, 351, 352 (1989).
Complaint subparagraph 5D: On May 13, Henning made
his usual early morning call to Doebber to discuss that day’s
work assignment. Again, as the conversation ended, Doebber
said, ‘‘I’m not sure what I’m going to do, whether I’m going
to stay in business or go out of business. I can probably find
something for Dave to do because of his membership in the
CIU. If I were you, I would look for another job.’’
Doebber’s general defense to his statements about closing
the business and inability to get work in the event of union-
ization was that he ‘‘didn’t have a formula to be able to get
work that was consistent with what I knew the area contract
of IBEW was.’’ This does not amount to a sufficiently de-
monstrable proposition so as to constitute a proper showing
of rationale required by Gissel Packing, supra. An employer
is not permitted, under Gissel, to jump from the unstated or
unproven premise that a union’s wage scale is fixed and im-
mutable to a conclusion that he may have to shut down in
the event of unionization, and convey this ultimate conclu-
sion to employees.
The statements made to Henning on May 13 obviously re-
lated to the union demand and were coercive within the
meaning of Section 8(a)(1).
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Again, Wilke’s testimony was less pointed. He said that when
Von Behren came, he and Motherway approached his van because
they both needed materials. He agreed, however, that ‘‘David said
to me that he needed to talk to me.’’ Again, I am inclined to accept
Motherway’s more precise version.
18 Motherway corroborated Wilke’s testimony by testifying that
after Von Behren departed, Wilke told him that Von Behren had
been ‘‘quizzing’’ him about the Union.
19 Since Wilke had signed a card, this was presumably an attempt
to get a reading on the current situation or to throw Von Behren off
his trail.
Complaint subparagraph 5E: According to Wilke and
Motherway, while they were working at the Centocor jobsite
on May 13, Doebber stopped by. After a preamble, Doebber
asked the employees, ‘‘I guess you know that the Union is
trying to organize us.’’ Motherway replied that he did know,
having been so told by Von Behren on the previous day.
Wilke denied knowledge. Doebber said that he did not mind
if they ‘‘went union, but he told the union that he didn’t do
no union work and that he didn’t pay union wages.’’
Doebber went on to say that ‘‘if we went union, he probably
wouldn’t be in business no more, that he would close his
doors’’ and that ‘‘there is no union work out there right
now.’’ Making reference to an upcoming job at UPS,
Doebber said that he ‘‘didn’t know if he was going to take
it or not’’ because he ‘‘didn’t have union wages built into
the UPS job.’’ The foregoing quoted matter is from
Motherway’s testimony; Wilke’s was more condensed and
not as threatening.
Wilke did not mention interrogation, but rather had
Doebber opening the conversation about the Union by saying
that he had been contacted by Local 1, that he ‘‘had enough
people at Debber that wants to go union,’’ that he could not
pay union scale on the upcoming UPS job, and that he
‘‘didn’t know what he was going to do, if he was going to
call it quits or going to go down to the vote.’’ Doebber did
not contradict the testimony of the employees. He did, more-
over, admit telling employees that he was not going to bid
on any work until he found out whether they were going to
vote to be represented by IBEW.
I am inclined to credit Motherway’s detailed testimony
about the interrogation. As to the remainder, under either
version it would appear that Doebber at least gave the em-
ployees the impression that he might cancel the UPS job and
might even ‘‘call it quits’’ before an election was held. Even
under Wilke’s milder account, the statements (and the inter-
rogation) constituted 8(a)(1) violations. Walter Garson, Jr. &
Associates, 276 NLRB 1226, 1231–1232.
Complaint subparagraph 5F: Shortly after Doebber visited
Wilke and Motherway at Centocor, Von Behren came to that
job on May 13. He asked Motherway if he could work late
that evening, and received an affirmative reply. Von Behren
then told Motherway to get some materials from Von
Behren’s truck and return to work because he wanted to
speak to Wilke.17
According to Wilke, Von Behren ‘‘asked me if I talked to
Bruce Henning.’’ Wilke dissembled. Von Behren then asked
if he had signed an IBEW card; again lying, Wilke said
‘‘No.’’18
During the evening of May 13, while working at Centocor,
Von Behren told Motherway that ‘‘if we go union, you
know, we won’t work. That we’ll close down.’’ With this
cheerful introduction, Von Behren then asked if Motherway
had signed a union card, which Motherway falsely denied.
Von Behren then drew a similar denial to a question of
whether Motherway knew of any other employee who had
signed. Von Behren did not deny holding such a conversa-
tion with Motherway. I find that the questioning of Wilke,
whose false answers indicate coercion, and the threat of clo-
sure together with the questioning which Motherway felt
compelled to lie about, constituted coercive behavior prohib-
ited by Section 8(a)(1).
Complaint subparagraph 5G: On May 14 at the Centocor
site, Wilke entered the maintenance shop and asked Von
Behren ‘‘what was going on with the Union because Rodger
Stranghoerner had asked me if I had spoke to Bruce Henning
also.’’19 Von Behren replied that the Union had 51 percent
of the Debber employees and he ‘‘wanted to know who the
other two people were that wanted to go union.’’ He also de-
clared that ‘‘the only reason that the union wanted to come
in is to close Doebber’s business down’’ and that he would
‘‘fire employees if he found they were lying to him.’’ Wilke
also recalled Von Behren speaking of a friend who was asso-
ciated with a formerly large electrical company that now
only had 6 employees; the record does not clearly disclose
that the company had been unionized. While I would assume,
given the context of the conversation, that it was unionized,
the record is not clear enough to draw such an inference.
Von Behren gave no testimony challenging Wilke’s. I am
not sure, given Wilke’s opening gambit, that Von Behren’s
response (he ‘‘wanted to know who the other two people
were that wanted to go union’’) constitutes, as the complaint
alleges, ‘‘ask[ing] an employee to ascertain and disclose to
Respondent’’ the union activities of other employees, but
Von Behren’s stated desire to have this information would
have clearly indicated to a reasonable employee that Re-
spondent would deal harshly with such individuals. I cannot
find that Von Behren (as the complaint alleges and the Gen-
eral Counsel presumably would argue) ‘‘impliedly threatened
plant closure if the Union’s efforts were successful’’; the ref-
erence to the Union wanting to come in only to close down
Doebber’s business is not a direct threat of employer action.
I do find, however, that this statement is a prediction lacking
the necessary objective facts as to demonstrably probable
consequences within the meaning of Gissel, supra. Moreover,
in addition to Von Behren’s implication that Respondent
would deal harshly with cardsigners, Respondent also vio-
lated Section 8(a)(1) by Von Behren’s threat to ‘‘fire’’ em-
ployees who lied to him about their union sentiments.
Complaint subparagraph 5H: On the following day, May
15, Von Behren convened a meeting of employees Wilke,
Motherway, Stranghoerner, and Reilly in the Centocor main-
tenance shop. He opened the meeting, which lasted for about
20 (Motherway) or 45 (Wilke) minutes and was held on
working time, by saying that he was speaking to them be-
cause Doebber would get in trouble if he did the speaking.
Von Behren went on to say that he wanted to know which
employees wanted union representation and that employees
had been lying to him about that; that he knew Henning
wanted the Union because they had discussed the matter
once; that when he found out who was lying to him, he was
going to ‘‘bust [or ‘beat’] some heads’’; that there was a 3-
year waiting period to get work at the Union and that if they
1099DEBBER ELECTRIC
20 When Motherway asked this question, Von Behren said, ‘‘Who
asked you to ask that, IBEW?’’ This is apparently the coercive inter-
rogation that the complaint and the General Counsel’s brief refer to.
It seems to me more a comment than a real question, and I would
not find it violative.
21 Von Behren testified that he asked ‘‘all employees to sign on’’
for the CIU ‘‘in this time frame of May 20.’’ Respondent’s witness,
Reilly, testified that Von Behren came to the UPS site and asked
apparently only Reilly (‘‘if I would like to sign the card or not. . . .
I said, yes, I would’’) to sign. Without being asked, Reilly volun-
teered that Von Behren specifically said, ‘‘You do not have to sign
this card.’’ While a very relaxed witness, Reilly was rather clearly
biased in Respondent’s favor, and my impression of Motherway
leads me to prefer him over Reilly.
did go Union, ‘‘Joe would close his doors and there would
not be no more work’’; that he, Von Behren, was going to
be ‘‘pissed off’’ if he had to hire a lawyer to get to the bot-
tom of the problem; that if they went Union, there would be
no work and all the employees would get was a ‘‘white
card’’ which the Union could retract at will; that he did not
know why Henning, who had previously talked about getting
a union and who Stranghoerner had said had come to his
house with Union Agent Hepburn, was trying to ‘‘upset this
boat’’; that he did not believe any of the employees were ca-
pable of being journeymen electricians; that employees
should call him that evening and tell him who was in the
Union, assuring them that ‘‘nothing would happen’’ to them
if they did so and saying that he just wanted to tell the union
supporters why the Union was a ‘‘bad idea’’; and that ‘‘him
and Joe’’ were going to probably stop bidding on jobs be-
cause they ‘‘didn’t know what was going to go on or what
was going to happen.’’
Von Behren testified that at this meeting he asked how
many employees ‘‘still wanted to be CIU.’’ He stated that
he told the employees that if they ‘‘go IBEW, there is no
work right now,’’ and so they would leave the shop and be
‘‘thrown out in the hall’’ on temporary white cards, to join
500 or more unemployed electricians. He agreed that he told
them that ‘‘right now, we can work as far as [I] know,’’ but
if they select the Union, ‘‘You’re not going to be working.’’
Von Behren ‘‘probably’’ said that if he lost his job, he was
‘‘going to kick some ass,’’ and he did say that employees,
once unionized, would have to work 6 months to get bene-
fits. He also said that he wanted to ascertain the identity of
the union supporters so that he could try to find out why
they wanted the Union and try to talk them out of it, but he
denied saying, or was ‘‘not sure’’ he said, or ‘‘[didn’t] re-
call’’ saying, or ‘‘[didn’t] know’’ whether he said, a number
of things. A pretrial affidavit given on June 5 shows that he
mentioned that Henning instigated the Union, that the present
job was winding down, and that as far as he knew, ‘‘[w]e
don’t have any more jobs coming up.’’
Subparagraph 5H of the complaint alleges threats of plant
closure, unspecified reprisals, refusal to accept work or bid
jobs, and lack of work; solicitation of employee reporting on
union activities and of grievances; and impliedly advising
employees of the futility of selecting the Union as their bar-
gaining representative. Out of the sometimes contradictory
mass of evidence, I find that Respondent did threaten a re-
fusal to accept work and a lack of work by Von Behren say-
ing that he and Doebber were probably going to stop bidding
on jobs because they did not know what was going to hap-
pen. I do not detect any threats of ‘‘unspecified’’ reprisal,
but I do conclude that the statement that Doebber would
‘‘close his doors’’ in the event of unionization and that Von
Behren would ‘‘bust some heads’’ if he found out who was
lying to him was coercive. Von Behren did also solicit em-
ployees to ‘‘report on other employees’ union activities,’’
and while the employees testified that Von Behren said that
he only wanted the names of the union supporters so that he
could find out why they wanted the Union, the context of the
talk was such that it might reasonably be considered coer-
cive. Saying that he wanted to find out why the employees
desired union representation amounts to a ‘‘solicitation of
grievances,’’ which, under Board law, raises an inference
that the employer is making a promise to resolve the griev-
ances so elicited, an inference which is rebuttable by the em-
ployer. Uarco Inc., 216 NLRB 1, 2 (1974). The inference
was not rebutted here. On the basis of the entirety of Von
Behren’s remarks, finally, he clearly conveyed to the em-
ployees the utter futility of choosing the Union to represent
them.
Complaint subparagraph 5I: On May 15, Doebber had a
conversation with Henning about unions. He related to
Henning that on a recent trip to Reno, he overheard a woman
say that her father, a union contractor, was ‘‘hurting for busi-
ness.’’ Doebber further regaled Henning with the story of a
relative who was a member of Local 1, was 175th on the
bench, and did not expect to work the rest of the year. Fi-
nally, Doebber said that he and his wife were dining that
evening with Steve Coats et ux and that he had had Coats
put in a small air conditioning job for him and was probably
going to have Coats ‘‘put in his air conditioning for him.’’
As we shall see, this was the same day that Doebber unlaw-
fully withdrew from Henning the privilege of using a com-
pany truck.
I agree with the General Counsel that there was a clear
implication here that Doebber was assigning work normally
done by Henning to Coats because of Henning’s union ac-
tivities. Respondent thus violated Section 8(a)(1).
Complaint subparagraph 5J: On May 20, Von Behren
came to the cafeteria table where Motherway, Reilly, and
Stranghoerner were taking a break at the UPS site, threw
some CIU cards on the table, and said, ‘‘Sign these.’’
Stranghoerner and Reilly did so, but Motherway had ques-
tions, among them what the cards were, what ‘‘do you get
for joining the CIU?,’’20 and what happens if an employee
refuses to sign. Von Behren answered the last question by
saying ‘‘You’ll be fired.’’ Motherway signed. Von Behren
then asked Stranghoerner to take a card over to Henning.
Stranghoerner said that he did not want to and told Von
Behren to do it. Von Behren said that if he did, a fight
would ensue. He further said that he ‘‘didn’t like’’ Henning
because he was seeking union representation, and that
Henning would not be working longer if he could help it.
After giving Reilly and Motherway their assignments for the
following day, Von Behren told the employees to return to
work.21
I agree with the General Counsel that Respondent violated
Section 8(a)(1) by Von Behren’s instruction to the employees
to sign CIU cards on pain on discharge. The statement that
Von Behren didn’t ‘‘like’’ Henning because he was seeking
union representation probably constitutes unlawful ‘‘dispar-
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 As Motherway testified, Von Behren ‘‘just came to his own as-
sumption that Scott was the one.’’
23 The formal documents show that Doebber had only received a
copy of the charge, and the name of the Board agent, on May 21.
24 It happens that in Western Auto Associate Store, supra, the labor
organization involved was ‘‘Congress of Independent Unions, Local
50.’’ That decision was rendered more than 30 years ago.
25 As earlier shown, Henning was instructed to join the CIU in De-
cember 1991. As also noted, this was not claimed to have been an
unlawful act.
agement,’’ and I also agree that Von Behren effectively, and
unlawfully, threatened Henning’s employment.
Complaint subparagraph 5K: On May 22, Von Behren
brought paychecks to the UPS jobsite. According to
Motherway, Von Behren said, ‘‘I guess my little ploy
worked that one Friday when I threatened everybody,’’ going
on to add that he ‘‘now knows who the other employee is
that wants to go union.’’ He identified that employee as
Wilke and explained(?): ‘‘It could only be Scott because it
was only Scott and us three that were there.’’ Motherway
continued, ‘‘And he said that it was Scott Wilke who he
knew that wanted to go union and who was the other em-
ployee.’’
Presumably it is the foregoing that the General Counsel re-
lies on for the claimed unlawful ‘‘impression of surveil-
lance.’’ Whatever Von Behren may have meant by what
Motherway says he heard, it is manifest that Von Behren
was boasting of having somehow deduced that Wilke was
prounion, and was not implying he had come to that conclu-
sion by surveillance of union activities. Thus, unlike
Flexsteel Industries, 311 NLRB 257 (1993), Von Behren
gave no indication that Respondent was ‘‘closely monitoring
the degree of an employee’s union involvement.’’22 I shall
recommend dismissal of this allegation.
Motherway also asserted that during this conversation,
Von Behren said that he could not believe that Henning and
Wilke wanted to go union, and he stated that ‘‘they weren’t
going to be working here much longer.’’ He told the employ-
ees that air conditioning work was being subcontracted to a
Jim Blair (an associate of Steve Coats) ‘‘mainly to punish’’
Henning. This testimony was undisputed, and the violation of
a threat of discharge and subcontracting in retaliation for fa-
voring union representation are clear.
Complaint subparagraph 5L: Later on May 22, Von
Behren returned to the UPS site and handed the three em-
ployees a slip of paper bearing the name and telephone num-
ber of the Board agent assigned to investigate the case.23 He
told the employees that he would like them to call the agent
and say that the charge filed on May 20 was false. After dis-
cussing the election for which the Union had petitioned on
May 14, and mentioning that although the IBEW had classi-
fied him as a ‘‘supervisor,’’ that was ‘‘going to change’’ so
that he would be a ‘‘foreman,’’ Von Behren told the employ-
ees to go inside and clean up, and to call him on Monday
to ‘‘find out where we’re supposed to go.’’
Stranghoerner’s version of this conversation conceded that
Von Behren had given them the name and number of the
Board agent, but only said, ‘‘[I]f you want to get Joe out of
trouble, you could call this number and give your opinion of
what I said [,] that Joe wasn’t responsible for what I said.’’
Although I see little material distinction between the two ac-
counts, I would, for what it is worth, credit the more believ-
able Motherway as against the manifestly biased and other-
wise unreliable Stranghoerner.
Urging an employee to tell a Board agent that a charge is
groundless is coercive interference with Section 7 rights and
violative of Section 8(a)(1).
Complaint subparagraph 5M: The parties stipulated that
on May 22, Joan Doebber issued a memorandum to all em-
ployees to which was attached a marked-up copy of the
charge filed on May 20. The two items accompanied the
paychecks distributed to the employees. Doebber stated in
the memorandum that she was ‘‘amazed’’ by the charges,
which led her to question whether it was the Union or the
employees who had lied to the Board. She dwelt at some
length on the extraordinary efforts her husband had made to
assist employees and told the employees to pay ‘‘particular
attention’’ to the printed matter on the form related to the
penalty for willfully false statements.
The Doebbers seemed to me to be basically decent and
law-abiding people (although I did not consider Joe
Doebber’s testimony to be reliable). They may well have
thought that they had done nothing wrong and that Von
Behren’s conduct, whatever it may have been, was neither
unlawful nor attributable to them.
However, when an employer so sharply criticizes the filing
of charges, and suggests that employees may have engaged
in deceit, the reasonable tendency of such behavior is to re-
strain them from initiating, or assisting in the investigation
of, a charge. This conduct violates Section 8(a)(1). Art Steel
of California, 256 NLRB 816, 821–822 (1981).
Complaint subparagraph 5N: On May 15, prior to the fil-
ing of the charge but after the union activity had com-
menced, Respondent issued to Von Behren, Henning, Reilly,
and Stranghoerner paychecks which (1) included a bonus of
$75 and (2) deducted the same sum as ‘‘union dues,’’ which
monies were remitted to the CIU. Joe Doebber testified that
he had a ‘‘practice’’ of doing so, although his company had
never had a labor agreement with CIU.
The cases on which the General Counsel relies are Sweater
Bee by Banff, Ltd., 197 NLRB 805 (1972), and Western Auto
Associate Store, 143 NLRB 703, 705 (1963). Both cases deal
with charges of unlawful financial assistance to labor organi-
zations in violation of Section 8(a)(2). In both cases, unlike
here, there was proof that the employees for whom dues
were paid had not signed checkoff authorizations. In both
cases, the organizations involved were found to be ‘‘labor or-
ganizations’’ within the meaning of Section 2(5) of the Act;
here, the complaint makes no such allegation, and the record
contains no evidence thereon.24 The cases do not stand for
the simple proposition, as the General Counsel contends, that
‘‘[a]n employer engages in unlawful conduct when it pays
the union dues of its employees.’’
Finding nothing inherently unlawful about an employer
paying union dues for employees who may have willingly
authorized dues deduction,25 I shall recommend dismissal of
this allegation.
Complaint subparagraph 50: Wilke testified that on June
4, after lunch, as he was working on the UPS job, Von
Behren came up to him and said he had a CIU card for
Wilke to sign, adding, ‘‘you do want to go CIU, don’t you?’’
Wilke replied that he ‘‘guess[ed]’’ he did, and was ‘‘already
in this CIU with another employer.’’ They walked out to
1101DEBBER ELECTRIC
26 The authorization card given Wilke by Von Behren contained a
dues-checkoff form.
27 It may be noted that while Von Behren insisted that he remem-
bered ‘‘exactly’’ that Wilke signed the card at his behest on May
20 when the three other employees did (see complaint subpar. 5J,
above), Wilke in fact was not approached and did not sign until 15
days later.
28 Although the Wright Line test is predicated on a mixed-motive
situation, the Board stated in Wright Line that it would apply the ap-
proach in all 8(a)(3) cases, as well as in 8(a)(1) cases involving mo-
tivation. 251 NLRB at 1089.
29 Respondent was not represented by an attorney in this proceed-
ing. Joe Doebber did, however, present witnesses, and he himself
testified. In doing so, Doebber only said, on direct, with respect to
the truck, that he had allowed Henning to use it because of his ‘‘fi-
nancial condition.’’ He did not attempt to explain what caused him
to rescind his benevolence. Doebber’s wife, on redirect examination,
tried to suggest some reasons for taking back the truck, such as ‘‘se-
curity, it was used personally. We had insurance risks. We needed
it on occasion. We found beer cans in the back and various and
other items going to personal use.’’ Doebber responded airily:
‘‘Those were factors. I didn’t want to furnish a personal vehicle to
Continued
Von Behren’s van to do the signing, and at that time Wilke
stated that he did not want dues deducted because he did not
‘‘believe that I wanted to be represented by the [CIU],’’
which had done ‘‘nothing for me.’’26 He signed the author-
ization card and filled out, but did not sign, the deduction
form. He told Von Behren that he wanted to talk to Doebber
about the deduction, and later on June 4 spoke to Doebber
by telephone (after Doebber had been interviewed by a
Board agent that day). Doebber told Wilke ‘‘something about
some sort of act that [he][could] not do that anymore.’’
While it would appear that the dues deduction problem
was quickly and satisfactorily resolved, the fact remains that
Von Behren did solicit in a peremptory manner the signing
of an authorization card by Wilke. This coercive act clearly
violated Section 8(a)(1).27
IV. THE 8(A)(3) ALLEGATIONS
The complaint contains two basic claims of Section 8(a)(3)
discrimination against Bruce Henning (although they are ex-
pressed in three separate allegations).
A. The Rescission of the Company Vehicle Privilege
Henning was, as set out earlier, the instigator of the union
effort: in March and April, he spoke to other employees
about the benefits of affiliation with Local 1; in May he
made contact with Union Agent Hepburn; and also in May,
he and Hepburn visited Stranghoerner (later to be a witness
for Respondent in this hearing) and tried, without success, to
enlist him in the cause. Respondent’s knowledge of
Henning’s activity is shown by Motherway’s testimony that,
on May 15, Von Behren had said that Henning had revealed
his interest in a union in an earlier discussion with Von
Behren and also said he knew that Henning and Hepburn had
visited Stranghoerner to proselytize him.
Henning had been allowed to use a truck of Respondent’s
since 1990 to commute between home and work. On occa-
sion, Doebber would tell Henning that he needed the truck
for a weekend. On Friday, May 15, Doebber told Henning
that he wanted to use the truck over the weekend. When
Henning dropped off the truck at Doebber’s house, and they
were waiting for Henning’s wife to pick him up, they had
the conversation previously described in complaint subpara-
graph 5I, supra.
When Henning came to work on May 19, and went to
Doebber’s home to get the truck, Doebber asked him to turn
over Henning’s keys for Doebber’s summer house (which
Henning had been given probably in the spring of 1991, and
which he kept because he occasionally performed work on
the house) and the keys to the storage area (which had been
in his possession prior to the spring of 1991). Doebber also
told Henning to drop the truck off before he went home that
evening. After May 15, the right to use the truck to commute
and, I assume, the summer house and storage keys were not
returned to Henning again.
The record shows that there had been good and sufficient
reasons for permanently relieving Henning of the truck privi-
lege on earlier occasions. In February or April, while using
the vehicle on a weekend for personal reasons, Henning was
involved in some sort of incident at a service station which
resulted in the issuance of an arrest warrant against him.
Doebber took the truck away from Henning but returned it
after 2 weeks. In the late fall of 1991 or the spring of 1992,
two tools were stolen from the truck while parked at
Henning’s residence. Henning was not required to forfeit the
use of the truck.
Respondent brought out that its home office parking lot
was being enlarged in the spring of 1991. At the hearing,
Henning testified that the lot, prior to enlargement, could
have accommodated the truck, although it would have been
a ‘‘tight’’ fit. But Doebber admitted that the parking lot en-
largement was completed on April 8. Doebber also testified
that the truck is now not regularly driven by anyone, and he
drives it if he has some reason to.
The standard for determining whether the General Counsel
has made out a violation of Section 8(a)(3) is (1) an ap-
praisal of whether a ‘‘prima facie’’ case of a motivation to
discriminate against an employee has been proven by the
General Counsel and (2) if so, whether the respondent has
demonstrated that it would have acted the same regardless of
the union activity. Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981).28 The Board has repeat-
edly stated that the General Counsel meets its prima facie
burden by showing ‘‘union activity, employer knowledge,
timing, and employer animus,’’ and sometimes less. Best
Plumbing Supply, 310 NLRB 143 (1993); Weather Shield of
Connecticut, 300 NLRB 93, 95 (1990); Appelbaum Indus-
tries, Inc., 294 NLRB 981, 983 (1989); Kona 60 Minute
Photo, 277 NLRB 867, 869 fn. 2 (1985) (timing, other un-
lawful conduct, and union animus); Heartland Food Ware-
house, 256 NLRB 940 (1981) (apparently no specific knowl-
edge needed to make prima facie case).
Each of these elements has been established here, and
more: Respondent’s attempted insinuation that Henning was
allowed to use the truck because of lack of parking space
which was not alleviated until May, whereas in fact the en-
largement of the parking lot was finished on April 8; Re-
spondent’s failure to permanently deprive Henning of use of
the truck on two previous occasions which might have been
thought to justify rescission of the privilege, in contrast to
the decision to do so on May 15, which Respondent has not
really explained in any way;29 and Respondent’s simulta-
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
anybody.’’ But he admitted on cross that he allowed Von Behren to
use a company van to commute and for other personal reasons.
30 I assume this to be true. The records of other employees, al-
though not Henning’s, show that they were paid 8 hours for the
‘‘Holiday.’’
31 I exclude May 25, since it seems clear that the Memorial Holi-
day was not a day of layoff.
neous and also unexplained direction to Henning on May 19
to turn over the keys to Doebber’s summer house and to the
storage area.
A strong case of 8(a)(3) discrimination has been made out
here by the General Counsel, and Respondent has not re-
motely begun to meet its Wright Line ‘‘in any event’’ bur-
den. Accordingly, I conclude that by depriving Henning of
use of the truck after May 15, Respondent violated Section
8(a)(3) and (1) of the Act.
B. The Alleged Unlawful Layoff of Bruce Henning
The amended complaint alleges that on or about May 18,
Respondent unlawfully laid off Henning.
The record shows that Henning did not work on Monday,
May 18; worked 8 hours on Tuesday, May 19; worked 5.5
hours on Wednesday, May 20; did not work on Thursday,
May 21 or Friday, May 22; was paid for the Memorial Day
holiday on Monday,30 May 25; did not work on Tuesday,
May 26; and thereafter worked steadily (except when he took
time off and was ill) until his discharge on June 26. On brief,
the General Counsel makes it clear that the violations alleged
occurred on Monday, May 18; Thursday, May 21; Friday,
May 22; and Tuesday, May 26. Henning testified that on
those days, he called Doebber early in the morning and was
told that there was no work for him, with Doebber saying
that ‘‘work was slow.’’
It appears from the pay records (which show only January
11 through May 28 schedules) that Henning did not work
from time to time in the immediate past. He did not work
on February 4, on March 7 (and only worked 4 hours on
March 6), on 4 days in the week ending March 13, and on
3 days in the following week and the week after that.
Relying on the doctrine earlier cited, the General Counsel
urges that given Respondent’s likely knowledge of Henning’s
union activity, its proven animus toward the Union, and the
timing of the layoff days soon after the onset of the union
campaign, the General Counsel has established a prima facie
case, shifting to Respondent a burden which it has not suc-
cessfully shouldered.
The Doebbers, being unrepresented by counsel, did not
present any testimony regarding the reason for Henning’s 4
days of layoff in May, and the General Counsel is correct
in saying that if the burden shifted to Respondent, it has
failed to meet its evidentiary obligation.
This is a very interesting test of the Board’s holding that
knowledge—activity—animus—timing satisfy the General
Counsel’s need to present a prima facie case. Here, the cir-
cumstances as a whole do not indicate an illegal layoff:
Henning did not work most of March, long before his union
activity, and he conceded the undeniable truth that layoffs
are common in the construction industry. Although the ques-
tion has not been dealt with at any length by the courts, at
least one, the Court of Appeals for the Fourth Circuit, has
taken a different approach to the question of what constitutes
a prima facie case. In NLRB v. Daniel Construction Co., 731
F.2d 191, 197 (4th Cir. 1984), a post-Wright Line decision,
the Court stated:
[General Counsel] must demonstrate by preponderant
evidence (1) that the employee was engaged in pro-
tected activity; (2) that the employer was aware of the
activity; and (3) that the activity or the worker’s union
affiliations was [sic] a substantial or motivating reason
for the employer’s action. Once it proves these three
elements, the General Counsel has established a prima
facie case of unlawful discharge.
The foregoing is, obviously, substantially different than the
Board’s test. Circumstances such as those present in the in-
stant case suggest that the Board’s standard might be broad-
ened to include some evidentiary requirement in addition to
the four (or three) factors that the Board now accepts as es-
tablishing a prima facie case.
Only recently, however, in Capitol EMI Music, Inc., 311
NLRB 997 (1993), the Board clearly stated that it has know-
ingly transferred to the respondent the burden of proving licit
motivation. In that case (at 1000 fn. 20) the Board stated:
The Board already imposes an evidentiary burden on
the party with the best access to the proof of motivation
in cases alleging Section 8(a)(3) misconduct, the re-
spondent. See Wright Line. . . .
In view of the Board’s settled approach to this subject, I
am constrained to conclude (1) that the General Counsel has
established the prerequisite prima facie case, and (2) that the
Respondent has failed to demonstrate that, even in the ab-
sence of union activity, it would have laid Henning off on
May 18, 21, 22, and 26.31 Accordingly, I find that Respond-
ent violated Section 8(a)(3) and (1) of the Act by withhold-
ing work from Henning on the foregoing dates.
V. THE CHALLENGED BALLOTS IN CASE 14–RC–11158
On the basis of the foregoing discussion, I conclude that
the challenge to the ballot of David Von Behren should be
sustained, the challenge to the ballot of Bruce Henning
should be denied, Henning’s ballot should be opened, and a
revised tally of ballots should be issued.
CONCLUSIONS OF LAW
1. Respondent Joan Doebber, d/b/a Debber Electric, St.
Louis, Missouri, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 1, International Brotherhood of Electrical Work-
ers, AFL–CIO (the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
3. David Von Behren was, at material times, a supervisor
within the meaning of Section 2(11) of the Act.
4. Bruce Henning was not, at material times, a supervisor
within the meaning of Section 2(11) of the Act.
5. By, in May and June 1992, engaging in the following
conduct, Respondent violated Section 8(a)(1) of the Act:
(a) Threatening to close its business because of organiza-
tion by the Union.
1103DEBBER ELECTRIC
32 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
33 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
(b) Coercively interrogating employees.
(c) Threatening not to pursue business because of organi-
zation by the Union.
(d) Asserting that the Union wanted to organize Respond-
ent only to close it down.
(e) Indicating that it would deal harshly with signers of au-
thorization cards.
(f) Threatening to discharge employees who lied about
their union sentiments.
(g) Threatening to do violence to employees for lying
about their union activities.
(h) Asking employees to report on the union activities of
others.
(i) Impliedly promising benefits if the employees would
withdraw support from the Union.
(j) Conveying the futility of choosing the Union to rep-
resent employees.
(k) Implying that Respondent was subcontracting work be-
cause of employee union activities.
(l) Instructing employees to sign authorization cards on
pain of discharge.
(m) Threatening to discharge employees because of their
union activities.
(n) Disparaging an employee because of his union activi-
ties.
(o) Urging an employee to tell a Board agent that a charge
is groundless.
(p) Criticizing the filing of charges and suggesting that the
employees may have engaged in deceit.
6. By, in May 1992, engaging in the following conduct,
Respondent violated Section 8(a)(3) and (1) of the Act:
(a) Rescinding Bruce Henning’s use of a company vehicle.
(b) Laying off Bruce Henning on May 18, 21, 22, and 26.
7. The aforesaid violations affect interstate commerce.
8. In other respects alleged in the complaint not found vio-
lative above, Respondent has not violated the Act.
THE REMEDY
Having found that Respondent unlawfully rescinded Bruce
Henning’s truck privilege after May 19, 1992, and laid off
Henning on May 18, 21, 22, and 26, 1992, I shall rec-
ommend that it be required to make him whole for any loss
of earnings and for commutation expenses he may have suf-
fered thereby, with interest in accordance with New Horizons
for the Retarded, 283 NLRB 1173 (1987).
I shall also recommend the issuance of a cease-and-desist
order and the posting of appropriate notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended32
ORDER
The Respondent, Joan Doebber, d/b/a Debber Electric, St.
Louis, Missouri, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening to close its business because of organiza-
tion by the Union.
(b) Coercively interrogating employees.
(c) Threatening not to pursue business because of organi-
zation by the Union.
(d) Asserting that the Union wanted to organize Respond-
ent only to close it down.
(e) Indicating that it would deal harshly with signers of au-
thorization cards.
(f) Threatening to discharge employees who lied about
their union sentiments.
(g) Threatening to do violence to employees for lying
about their union activities.
(h) Asking employees to report on the union activities of
others.
(i) Impliedly promising benefits if the employees would
withdraw support from the Union.
(j) Conveying the futility of choosing the Union to rep-
resent employees.
(k) Implying that Respondent was subcontracting work be-
cause of employee union activities.
(l) Instructing employees to sign authorization cards on
pain of discharge.
(m) Threatening to discharge employees because of their
union activities.
(n) Disparaging an employee because of his union activi-
ties.
(o) Urging an employee to tell a Board agent that a charge
is groundless.
(p) Criticizing the filing of charges and suggesting that the
employees may have engaged in deceit.
(q) Discriminating against employees for engaging in ac-
tivities protected by Section 7 of the Act.
(r) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes
of collective bargaining or other mutual aid, or to refrain
from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Bruce Henning whole in the manner set forth in
the remedy section of this decision.
(b) Post at its place of business in St. Louis, Missouri,
copies of the attached notice marked ‘‘Appendix.’’33 Copies
of the notice, on forms provided by the Regional Director for
Region 14, after being signed by Respondent’s authorized
representative, shall be posted by it for 60 consecutive days
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS ALSO ORDERED that the portions of the complaint
found to be without merit are hereby dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten to close our business because of or-
ganization by the Union.
WE WILL NOT coercively interrogate our employees.
WE WILL NOT threaten not to pursue business because of
organization by the Union.
WE WILL NOT assert that the Union wants to organize our
business only to close it down.
WE WILL NOT indicate that we would deal harshly with
signers of authorization cards.
WE WILL NOT threaten to discharge employees who lied
about their union sentiments.
WE WILL NOT threaten to do violence to employees for
lying about their union activities.
WE WILL NOT ask employees to report on the union activi-
ties of others.
WE WILL NOT impliedly promise benefits if employees
would withdraw support from the Union.
WE WILL NOT convey the futility of choosing the Union
to represent employees.
WE WILL NOT imply that we are subcontracting work be-
cause of employee union activities.
WE WILL NOT instruct employees to sign authorization
cards on pain of discharge.
WE WILL NOT threaten to discharge employees because of
their union activities.
WE WILL NOT disparage an employee because of his union
activities.
WE WILL NOT urge an employee to tell a Board agent that
a charge is groundless.
WE WILL NOT criticize the filing of charges and suggest
that employees may have engaged in deceit.
WE WILL NOT discriminate against employees for engaging
in activities protected by Section 7 of the Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce employees in the exercise of their rights guaranteed
by Section 7 of the Act.
WE WILL make Bruce Henning whole, with interest, for
laying him off on May 18, 21, 22, and 26, 1992, and for
commutation expenses incurred after May 15, 1992.
JOAN DOEBBER, D/B/A DEBBER ELECTRIC