DeMuth Electric, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1995

316 N.L.R.B. 935 (N.L.R.B. 1995)

935
316 NLRB No. 135
DEMUTH ELECTRIC, INC
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard 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.
2 Member Stephens adopts the judge’s dismissal of the complaint
allegation regarding the Respondent’s refusal to reinstate employee
Price because he agrees with the judge that Price’s departure from
the job on September 20, 1993, was not a concerted action amount-
ing to a strike. In particular, Member Stephens notes that Price never
sought to enlist the support of any fellow employee in his departure
from the job, did not suggest that he was protesting the treatment
of any other employee, did not leave in protest of a collective-bar-
gaining agreement violation (there was no such agreement), and took
his action against the wishes of the labor organization for which he
had originally intended to organize.
3 In finding that the Respondent’s conduct was unlawful, we find
it unnecessary to pass on the judge’s finding that, because Price ob-
tained employment with the Respondent for the purpose of organiz-
ing its employees, he ‘‘could not himself really be coerced by any-
thing that DeMuth did or said.’’ We stress, as did the judge, that
other employees were present during this conversation and that,
therefore, DeMuth’s coercive statements to Price interfered with their
Sec. 7 rights in any event.
4 We adopt, inter alia, the judge’s finding that the Respondent’s in-
quiry about Price’s union activities constituted a coercive interroga-
tion violating Sec. 8(a)(1).
5 Although Price engaged in organizing activities on Local 139’s
behalf, he actually was a member of Electrical Workers Local 241.
6 The judge, as the General Counsel noted, incorrectly stated at
one point that Price had received the cap from Eagen the previous
weekend. We find that correction of this error is immaterial to our
disposition of the issue.
7 Member Stephens agrees that DeMuth’s questions and comments
regarding the cap were coercive given the context of the other
threats made by DeMuth that day.
8 In reaching this conclusion, we disregard the judge’s attempt at
fn. 10 of his decision to diminish the importance of this issue, as
well as other complaint allegations, by noting that the Union failed
to describe with specificity these matters on filing the initial charge
alleging unfair labor practice violations.
DeMuth Electric, Inc. and International Brother-
hood of Electrical Workers, Local 139. Cases
3–CA–18162 and 3–CA–18401
March 30, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On August 2, 1994, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions and
supporting briefs.
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 as modified below and to adopt the rec-
ommended Order as modified.
The judge found that the Respondent did not, as al-
leged, violate Section 8(a)(1) of the Act by comments
that its owner, John DeMuth, made about a union cap
that employee James Price wore to work. Although we
adopt the judge’s decision in other respects,2 we find
merit in the General Counsel’s exception to this find-
ing. Thus, for reasons stated below, we conclude that
the Respondent further violated Section 8(a)(1) by
DeMuth’s derogatory references to Price’s union activ-
ity.3
The evidence shows that, on September 20, 1993,
Price wore a cap to work bearing the insignia of Elec-
trical Workers Local 139. During the conversation that
followed, which Price tape recorded, DeMuth inquired
as to whether Price was affiliated with that Union.4
When Price replied that he was not,5 DeMuth asked
where Price had gotten the cap. Price said that Keenan
Eagen, a union official, had given him the cap about
8 months ago.6 DeMuth then asked if Price thought it
was appropriate to wear the cap ‘‘around here.’’ Price
responded, ‘‘Yeah, do you? Do you?’’ DeMuth an-
swered, ‘‘No, I don’t.’’ Thereafter, DeMuth reiterated
that he ‘‘just [didn’t] think it’s appropriate’’ for Price
to wear the union cap on the job. On conclusion of the
discussion, Price asked if DeMuth was saying that
Price could not wear his union cap. DeMuth denied
having said this and that Price should use his best
judgment about wearing the hat. Price then left for the
jobsite wearing his union cap.
It is well established that an employee has the pro-
tected right to wear union insignia while at work. Re-
public Aviation Corp. v. NLRB, 324 U.S. 793, 801–803
(1945). The Board has held that, in the absence of
‘‘special circumstances,’’ the prohibition by an em-
ployer against the wearing of union insignia violates
Section 8(a)(1) of the Act. See, e.g., Ohio Masonic
Home, 205 NLRB 357 (1973), enfd. mem. 511 F.2d
527 (6th Cir. 1975). Here, DeMuth’s comments that
Price’s wearing of the hat was ‘‘inappropriate’’ suggest
that Price could suffer adverse consequences or un-
specified reprisals unless he removed the ‘‘inappropri-
ate’’ cap. Although DeMuth did not specifically pro-
hibit Price from wearing the hat, DeMuth’s message
was clear that Price risked employer retaliation if he
did so. Therefore, we find that this conduct interfered
with the rights of the Respondent’s employees to en-
gage in Section 7 activities.7 Because the Respondent
has failed to show that special circumstances justified
DeMuth’s remarks, we conclude that the Respondent
has violated Section 8(a)(1) by questioning the propri-
ety of Price’s wearing the union cap at work.8
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1993 unless otherwise noted.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 3(d) and re-
letter subsequent paragraphs accordingly.
‘‘(d) Threatening employees with unspecified repris-
als for wearing union insignia.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
DeMuth Electric, Inc., Elmira, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 1(d) and reletter
the subsequent paragraph accordingly.
‘‘(d) Threatening employees with unspecified repris-
als for wearing union insignia.’’
2. 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 coercively interrogate our employees
about their union sympathies, activities, and affiliation.
WE WILL NOT threaten our employees with dis-
charge if they speak with other employees about join-
ing the Union at our office or between the hours of 8
a.m. and 4:30 p.m., while maintaining no prohibition
against other forms of communication or solicitation
between employees at the office or at the times speci-
fied, and by not excluding lunchtime and breaktime
from the prohibition.
WE WILL NOT threaten our employees with dis-
charge if any union representative appears on the
premises of any job on which we are performing work.
WE WILL NOT threaten our employees with unspec-
ified reprisals for wearing union insignia.
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.
DEMUTH ELECTRIC, INC.
Rafael Aybar, Esq., for the General Counsel.
John DeMuth, pro se, of Elmira, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on charges filed by International Brotherhood of Electrical
Workers, Local 139 (Union or Local 139) in Case 3–CA–
18162 on October 12, 1993,1 and in Case 3–CA–18401 on
February 22 and April 4, 1994, the Regional Director for Re-
gion 3 has issued an order consolidating case, amended con-
solidated complaint, and notice of rescheduled hearing (com-
plaint) against DeMuth Electric, Inc. (DeMuth or Respond-
ent). The complaint alleges that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the National Labor Relations Act (Act). Respondent filed
a timely answer in which, inter alia, it admits the jurisdic-
tional allegations of the complaint.
Hearing was held in these matters in Elmira, New York,
on June 8 and 9, 1994. A brief was received from the Gen-
eral Counsel on June 14, 1994. Based on the entire record,
and my observation of the demeanor of the witnesses, and
after consideration of the brief, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Elmira, New York, and has at all material times
been engaged as an electrical contractor performing residen-
tial and commercial work in the construction industry. Its an-
swer to the complaint admits that during 1993, it provided
services valued in excess of $50,000 for Laprino Foods, an
enterprise directly engaged in interstate commerce. I find that
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE INVOLVED LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated the Act by,
on September 20:
a. Interrogating an employee about the employee’s union
membership, activities, and sympathies.
b. Threatening an employee with discharge if the em-
ployee engaged in union or concerted activities, such as talk-
ing about a union with fellow employees or union organizers
or wearing clothing with the name of the Union on it.
c. Discontinuing its practice of allowing its employee,
James Price, the use of a company truck because Price joined
or assisted the Union and engaged in concerted activities and
to discourage employees from engaging in these activities.
The complaint further alleges that Price commenced a
strike on September 20, caused by Respondent’s alleged un-
lawful activity as set forth above. It alleges that on January
7, 1994, Price made an unconditional offer to return to work,
and since January 10, 1994, Respondent has refused to rein-
state Price to his former position even though it continues to
utilize employees of a temporary help agency.
937DEMUTH ELECTRIC, INC.
2 As noted above, Price originally testified that this event occurred
in August, but amended the date on cross-examination.
3 The record conclusively establishes only that Price spoke to one
employee, Lance Wattles, on one occasion, September 20, about the
Union.
A. Events Leading to the September 20 Confrontation
James Price is a journeyman electrician and is currently a
member of IBEW Local 241, Ithaca, New York. He has been
a member of one IBEW local or another since 1972. During
his career as an electrician, Price has from time to time as-
sisted the IBEW in organizing attempts by ‘‘salting’’ or be-
coming an employee-organizer for the Union with various
nonunion contractors. Under an agreement reached with
Local 139 Organizer Keenan Eagen, Price sought employ-
ment with Respondent for the purpose of organizing Re-
spondent’s employees. In February or March, he had just fin-
ished a salting assignment at another company and asked
Eagen if there was another such job Eagen wanted per-
formed, and Eagen directed him to DeMuth. According to
Price, he received no compensation for his salting activities
from the Union.
According to Price, he applied for work with Respondent
in March, by stopping by Respondent’s office and asking for
an application. He filled out the application there and re-
turned it to a secretary in the office. She said it would be
kept on file. Price testified that, thereafter, he phoned several
times and stopped by once in an attempt to secure employ-
ment. He testified that he spoke with Respondent’s owner,
John DeMuth, several times and was told by DeMuth that he
was interested in hiring Price and they discussed wages.
Price let the matter go at the time, but again contacted
DeMuth in August. At that time, they again discussed wages,
Price said he was moving to the Elmira area, and they agreed
that Price would start to work for DeMuth. According to
Price, DeMuth mentioned that his company had some ‘‘rate’’
work, that is, work at union wage levels. The other work he
had was at a lower rate. Price admitted that the major dis-
agreement between himself and DeMuth about employment
was DeMuth’s wage rate. Price also admitted that DeMuth
asked him nothing about union affiliation while interviewing
for employment with Respondent.
DeMuth’s secretary testified that the first time Price con-
tacted the Company was on May 4, when he stopped by the
office and left a resume. He called DeMuth about employ-
ment on May 17, and he again called on May 25. Price ad-
mitted in later testimony that he was incorrect with respect
to the date he first applied for work, agreeing with the May
4 date for leaving his resume with Respondent. On July 29,
DeMuth referred Price to Corning Community College,
which was in the process of hiring an electrician. There is
no indication whether Price followed up on this job oppor-
tunity.
According to Price, he did not tell DeMuth he was a mem-
ber of the IBEW and did not disclose this fact on his appli-
cation form. He testified that none of the references listed on
the form are affiliated with a union. He admitted that
DeMuth did not ask about his union affiliation or sympathies
during any preemployment interviews or discussions they
had. Price testified that he had a number of discussions with
Eagen prior to being hired by DeMuth. These discussion cen-
tered around speculation about Price’s chances of gaining
employment there. During the summer, Price was employed
by another company, Turner Refrigeration, at a higher rate
of pay than offered by DeMuth.
On or about September 3,2 Price told DeMuth that he was
having marital problems and wanted to relocate and would
accept DeMuth’s wage offer of $10 per hour. They agreed
that Price would start work on September 7. On September
7, Price filled out an application form and other personnel
forms necessary for employment at DeMuth. Among the
forms was one that stated that an employee of DeMuth must
have a drivers license and a means of transportation. It also
states that uniforms are provided for employees and they are
to be on the job ready to start work at 8 a.m. On September
8, rather than beginning his new employment, Price called
DeMuth and asked that the starting date for work be post-
poned because of personal problems.
Price went to work for Respondent on September 13 as a
journeyman electrician, working from 8 a.m. to 4:30 p.m.,
with a half hour lunch at noon. The job he was assigned was
the electrical wiring involved in the renovation of a lawyer’s
office. Price began this project and worked alone on it. Dur-
ing the week he worked for DeMuth, John DeMuth visited
the jobsite on at least two occasions. Respondent provided
him with a company van containing materials and tools for
the project to use to go to and from the jobsite. According
to Price, when he was hired, DeMuth told him that he would
be assigned a company vehicle to carry supplies and he
would not have to use his private vehicle for hauling equip-
ment and supplies. Price believes that all Respondent’s elec-
tricians are supplied company vehicles. On cross, this was
amended by Price’s testimony that on September 13 John
DeMuth told him to take a service truck to the job to get
started because they were already behind on the job because
Price did not begin work on September 8 as planned. He also
assigned the van to Price because DeMuth did not know
what areas carpenters would be working in and the van had
ample materials and tools to begin work wherever they were.
With respect to the matter of assigning vans, another em-
ployee of Respondent, Lance Wattles, credibly testified that
all DeMuth’s employees are not assigned vans, though Re-
spondent has at least as many vans as employees. Wattles
testified that he asked DeMuth if he could use a van until
he acquired a second vehicle and was granted this privilege.
He also testified that the van used by Price was a service ve-
hicle used to begin a job when there is a need to accumulate
tools and materials for the job.
Price testified that he usually arrived at DeMuth’s office
between 7 and 7:30 a.m., got the van and left for the jobsite
at 8 a.m. Some other employees also came in to the office
at this time and left for their assigned jobs at about the same
time. During the time he was at the office, he would gather
tools, equipment, or supplies needed for the day’s work and
put them in the van. During the 1 week he worked on the
project, he would arrive there at about 8:10 a.m. Price testi-
fied that he spoke with other employees about the Union and
about social topics while at the office.3 According to Price,
he was never told that he could not engage in social con-
versations with other employees while at the office or be vis-
ited by social acquaintances while on the jobsite. On this
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The employee with whom Price was speaking was electrician
Lance Wattles. Wattles testified, inter alia, that he has informed
DeMuth that he had been contacted on a number of occasions by
the Union. DeMuth has informed him that he is not interested and
cannot comment or respond. He testified that the fact that he may
be involved in union activities has not affected his job in any man-
ner.
point Wattles testified that he usually arrived at the office
about 7:30 a.m., gathered materials, and left for his jobsite
either immediately or at about 7:40 a.m. He has been warned
by DeMuth in the past to be at the jobsite by 8 a.m. and
had been verbally disciplined by DeMuth when he failed to
do so. Therefore, crediting Wattles, I find that Respondent
had an enforced, existing policy requiring employees to be
at the situs of their work by the 8 a.m. starting time.
On the other hand, prior to the events in question, the Re-
spondent had no company rule which would prohibit social
conversations between employees during working time so
long as the conversations did not hurt other employees.
DeMuth cited the example of a type of conversation he pro-
hibited being one when one employee makes comments
about another’s spouse. No employee has been disciplined
for engaging in a social conversation with another employee
on worktime. DeMuth also had no policy prior to September
20 prohibiting employee conversations at the office before or
after work, or while working there.
During the first week of his employment with DeMuth,
Price wore a baseball cap to work bearing a golf logo and
was not told that the cap was in any way inappropriate. Re-
spondent does not have a policy prohibiting the wearing of
personal caps, though it does provide a uniform and requires
the uniform be neat.
On the weekend before September 20, Eagen gave Price
a cap with a union logo and a pocket size tape recorder. Ac-
cording to Price, he and Eagen wanted to tape Price’s con-
versations with employees and DeMuth’s reaction to his ac-
tivity. Specifically, Price and Eagen wanted to see if DeMuth
would engage in unfair labor practices. He agreed with
DeMuth’s characterization that his intent on September 20
was to ‘‘bait’’ DeMuth into violating the Act. In my opinion,
Price unconvincingly denied that going on strike was pre-
arranged. It had been prearranged that Eagen would meet
Price for lunch on September 20. Upon meeting Eagen for
lunch, Price informed DeMuth by phone that he was going
on strike and thereafter he and Eagen spent the afternoon lis-
tening to the tape Price had made that morning.
Price went to DeMuth’s office on this morning at his usual
time and upon arriving, began taping. He first spoke with
one of DeMuth’s other employees about the advantages of-
fered by the Union. A little later, he played with DeMuth’s
dog, and then DeMuth showed up. A transcript of the tape
follows:
Price: Hi. How you doing?
Worker: Good, you?
Price: Not bad.
Worker: Good.
Price: So, where is everybody.
Worker: Hell if I know.
Price: You the first one here.
Worker: Yeah, usually am.
Price: Sure is.
Worker and Price are inaudible for a few seconds, then,
Price: Well, I think we have the stuff here. Let me
ask you a question.
Worker: Yes, sir.
Price: What do you think about joining the union?
Worker: Hey?
Price: What do you think about joining the Union?
Worker: What do I think about joining the Union?4
Price: Yeah.
Worker: Well, they’re after me.
Price: I’m a union member, did you know that?
Worker: No, I didn’t.
Price: Yes.
Worker: Keenan Eagen told me, oh, several times.
Price: Tell you what. Let me tell you something,
Keenan Eagen, there’s work out there and the right to
work out there, you can collect your unemployment
without having to look for a job (inaudible) and it’s
better working conditions.
Worker: What do you mean by that?
Price: Well, you get to change around from different
jobs. You’re not always working for the same contrac-
tor.
Worker: Well, do you know—I don’t know much
about union at all. What Keenan told me, that’s about
all I do know.
Price: Okay. Losing your job if he told (inaudible)
they’d probably get . . . .
Worker: No, I mean, he knows what the union told
me and, I don’t know, (inaudible) pretty much all he
has for a year.
Price: Okay, It’s something you should think about
so . . . you’re working on or whatever it is?
Worker: No, well maybe.
Price: Maybe?
Worker: Yeah. Working forward to (inaudible) an-
other job, more secure.
Price: Got to work Saturday.
Worker: Yeah, I work Friday nights, all day Satur-
day.
Inaudible passage of a few seconds.
Price: Steel, hey?
Worker: What’s that.
Price: Steel, hey?
Worker: Yep.
Price That’s not cheap, is it?
Worker: No.
Price: What’s he do with the scrap.
Worker: I have no idea (inaudible) stockroom.
Price: Plays and talks with Dexter the dog.
There is a pause in the tape and then,
DeMuth: Do you have any affiliation with IBEW
Local 139?
Price: No, I don’t.
DeMuth: You don’t, huh?
Price: No.
DeMuth: Where did you get the hat?
939DEMUTH ELECTRIC, INC.
Price: Keenan Eagen gave it to me . . . about 8
months ago.
DeMuth: Do you think it’s appropriate to wear it
around here?
Price: Yeah, do you? Do you?
DeMuth: No, I don’t.
Price: You don’t want me to wear it?
DeMuth: Jim, I’m going to tell you something.
Price: Okay.
DeMuth: We’re not represented by that operation.
Price: Uh huh.
DeMuth: Are you represented by that operation.
Price: I’m not represented by them, no.
DeMuth: Okay, I just don’t think its appropriate. Do
you know what a plant is, Jim?
Price: What’s a plant?
DeMuth: Do you know what a plant is?
Price: Do I know what a plant is? No, what is a ?
as a manufacturing plant or . . . ?
DeMuth: (inaudible) Um, what do you need over
there for tools, materials, and everything else.
Price: Drill, um, sawzall, extension cord, ladder.
DeMuth: There’s a sawzall there.
Price: I’ve got a sawzall in the truck.
DeMuth: No you’re not taking the truck.
Price: So what do you want me to take?
DeMuth: (inaudible)
Price: My car?
DeMuth: Yeah.
Price: Am I going to get paid to use my car?
DeMuth: No, you’re not getting paid to use your car.
(inaudible)
Price: Would you mind before 8 o’clock if I talked
to your guys about joining a Union?
DeMuth: Yeah, I do.
Price: I can’t do that?
DeMuth: No, you can’t do that. You want to talk
about the Union, do it someplace else. You understand
me?
Price: I understand you.
DeMuth: You don’t have any affiliation with the
Union?
Price: I didn’t say that. I have no affiliation with
139.
DeMuth: You told me you didn’t have any affili-
ation. . . .
Price: with 139. No, I don’t have any affiliation with
139. I’m a member of 241.
DeMuth: That’s cool, that’s cool. Jim, that’s real
good. You come in here to disrupt my operation. I’m
gonna tell you something, I’ll tell you right in front of
these guys right here, you talk Union on my job be-
tween 8:00 and 4:30, you’re fired.
Price: I won’t do that.
DeMuth: You’re damn right you won’t. I see a rep-
resentative of any local Union on my job, you’re fired.
Price: You won’t see that either.
DeMuth: I’d like to see you in the office, Jim.
Price: Sure.
DeMuth: Let’s go out to my truck. What else do you
need, Jim? Drill. . . .
Price: Sawzall, 6-foot ladder . . . .
DeMuth: Yep, Sawzall’s right here.
Price: (inaudible)
DeMuth: What else, Jim?
Price: That should do me. After you sir.
DeMuth: Go ahead. You work here. You do as your
told. Were you sent by the local Union to organize this
Company?
Price: Was I sent here by the local Union to organize
this Company?
DeMuth: Were you asked by the Union to go to
work for DeMuth Electric in any way, shape, manner
or form, so you could help organize this company?
Price: Yes.
DeMuth: You were, huh?
Price: Uh huh.
DeMuth: Do you realize there are laws against that.
Price: I don’t know of any laws against that.
DeMuth: Uh huh. Let me tell you something, Jim.
You came in here and said, ah John you work with me,
I got personal business to do, I got this, I got that.
Price: Uh huh.
DeMuth: You’re asking me to be a real nice guy and
you come in here and try to disrupt my operation.
Price: I’m not trying to disrupt your operation.
DeMuth: Yes, you are, Jim.
Price: I’m trying to help your operation.
DeMuth: My operation doesn’t need your help.
Price: I’m just trying to help you.
DeMuth: I don’t need your kind of help, Jim. Don’t
need it whatsoever.
Price: Okay.
DeMuth: Your organization with whom you’re affili-
ated can’t compete in the marketplace. They cannot
compete in the marketplace. Do you understand me?
Cannot compete. The reason they’re here is because
they can’t compete in the marketplace. Because they
feel that they need people. They need people real bad,
Jim. The International is burning all that God damned
money and they need per capita. That’s what’s happen-
ing.
Price: John, I don’t think that is.
DeMuth: No, you don’t think so, huh. Well I’ll tell
you what, you go to Local 139 and you open up the
books.
Price: Uh huh.
DeMuth: Open up the books. Get real deep into the
books and you’re going to find they’re operating in the
red. The only way they’re operating in the black is be-
cause they’re taking all the money out of the pension,
the money that came out of the pension funds of all the
hard-working members who paid for our God damn op-
eration of the Local.
Price: So you think they’re stealing money from peo-
ple?
DeMuth: Exactly, that’s illegal, that’s illegal.
Price: Cause if you think they’re stealing money
from people, that’s really something. I don’t think they
would do that at all.
DeMuth: You don’t think they’re taking money out
of your pension, money . . . income out of your pen-
sion fund . . . .
Price: To run their Local?
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DeMuth: To run their Local.
Price: No, I don’t believe they’d do that.
DeMuth: I bet you thousands of dollars they are Jim,
because they can’t operate. . . .
Price: We’re just here to help you, John.
DeMuth: What kind of help do you think I need
here, Jim?
Price: We can give you a vast amount of people.
DeMuth: You can’t give me anything.
Price: A labor pool. . . .
DeMuth: I’m going to tell you something. I was a
member of this Local. Do you realize I was a (inaudi-
ble) of this Local?
Price: How come you left?
DeMuth: Because, I had to go to Washington, D.C.
because they didn’t have competent enough people in
this Local. I had to take the God damn Local to Court
because they didn’t have the competency. I was on the
Executive Board. I was on the Apprenticeship Commit-
tee. I was on the negotiating Committee. I was involved
very very heavily in this Local, Jim. You don’t know
anything about it. You know who hired Keenan Eagen?
You know how Keenan Eagen got his job?
Price: How’d he get his job?
DeMuth: He got his job because I was on the Ap-
prenticeship Committee.
Price: Is he a good man?
DeMuth: No, he’s not a good man.
Price: Does he know his stuff?
DeMuth: No, he doesn’t know his stuff.
Price: I’m sorry to hear that. I thought he was a
good man.
DeMuth: What you think?
Price: How about Charlie Patton?
DeMuth: What do I think about Charlie Patton?
Charlie Patton turned around and f—ked the best guy
who taught him everything he knows, went and f—ked
him right in the back. Have you ever heard a guy by
the name of ah, of ah, former Business Agent, Joe ah,
did you ever meet Joe ah, (inaudible). Did you ever
meet him?
Price: No.
DeMuth: Joe taught this guy everything he knows.
Joe was the Business Agent. Charles had been the As-
sistant Business Agent for years.
Price: Uh huh.
DeMuth: Joe ran four years ago. Three or four years
ago before he retired.
Price: Right.
DeMuth: Charlie Patton ran against him as Business
Agent. Charlie Patton was the Assistant Business
Agent. Joe was going to retire before his term was up,
but if he had been re-elected. . . .
Price: Uh huh.
DeMuth: As Business Agent. Charles as the Assist-
ant Business Agent, Charles Patton would have been
the Business Agent.
Price: Okay, I understand you.
DeMuth: (inaudible) the quality of people you have
. . . .
Price: Do you think. . . .
DeMuth: Representing . . . .
Price: Do you think of all the people in that Local
there’s no one qualified that could come out and work
for you?
DeMuth: The qualified people are employed. On a
regular basis by those . . . . What . . . what. . . .
You told me I could . . . I . . . you’re going to give
me a labor pool. What kind of labor pool are you going
to give me, the six guys that left here? (inaudible)
That’s the kind of labor pool you’re gonna give me?
Price: Why? They weren’t any good?
DeMuth: That’s the kind of labor pool you’re gonna
give me? The guys (inaudible)
Price: But were they any good?
DeMuth: Do I want people without loyalty working
for me? I don’t give a shit what they’re affiliated with.
Do I want them working for me? Absolutely not. Abso-
lutely not. Absolutely not, Jim. I don’t want, I don’t
want . . . .
Price: I’m loyal.
DeMuth: Loyal to what?
Price: The Union.
DeMuth: Loyal to the Union, huh?
Price: Yes, and I’ll do a good job for you. I’ve been
doing a good job for you.
DeMuth: Sure.
Price: So, I’ve been doing a good job for you.
DeMuth: You will?
Price: That’s right, I will.
DeMuth: And next week, you’ll want how much an
hour, Jim?
Price: Well I think that you should be paying me the
proper rate. Don’t you?
DeMuth: No I don’t Jim because its not competitive
in the marketplace. Its real simple.
Price: And I think you could make any money pay-
ing Union wages.
DeMuth: I’ve been in the Union and I know I can’t.
I cannot be competitive in the marketplace.
Price: Then how does everybody else do it?
DeMuth: How does everybody else?
Price: There’s other contractors in Ithaca and
in. . . .
DeMuth: Let’s look at Elmira first.
Price: In Elmira.
DeMuth: Let’s look at Elmira first. Let’s not go to
Ithaca and and let’s go to Elmira first.
Price: Okay. Let’s go to Elmira.
DeMuth: Let’s go to Elmira.
Price: Is anybody doing any work in Elmira making
any money?
DeMuth: Where’s the work? Where are they getting
the work?
Price: In the Union. (inaudible)
DeMuth: Where are they getting the work? Exactly
where are they getting the work?
Price: Exactly where?
DeMuth: Yeah where?
Price: They’re getting work in town aren’t they?
DeMuth: Where’s their customers.
Price: I don’t know who all their customers are.
DeMuth: Let me know a customer.
Price: I don’t know all the customers.
941DEMUTH ELECTRIC, INC.
5 The evidence reflects that the van in question is the Respondent’s
service van and was to be used on September 20 by two other elec-
tricians to perform service work. He said that the other vans used
by the Company were already assigned for use that day. DeMuth
testified that the events of the morning had nothing to do with reas-
signing the van on September 20.
6 The evidence reflects that the company flashlights are assigned
to particular company vans.
7 This last allegation is also alleged to be a violation of Sec.
8(a)(3) of the Act.
DeMuth: (inaudible)
Price: I know a customer, Tops.
DeMuth: Tops?
Price: Tops out there at that strip mall. Did they
make any money on that job? I think they did.
DeMuth: Who knows? They got some contract peo-
ple.
Price: They wouldn’t be doing just (inaudible)
DeMuth: (inaudible) I can’t compete with a lot of
contract . . . out of town contractors.
Price: That makes you more competitive by (inaudi-
ble).
DeMuth: Sure you’re competitive. Sure you’re com-
petitive when you gotta tighten up your edges. That’s
not making money Jim.
Price: John, we’re really trying to help you.
DeMuth: You’re not helping me a God damn thing.
Price: We’re really trying to help you. I’m not trying
to hurt you.
DeMuth: You’re not helping me a bit, and you’re not
trying to help me.
Price: Yes, we are.
DeMuth: You are?
Price: Absolutely.
DeMuth: Good, its 8 o’clock. Pick up your tools, get
over to the job and get to work. That’s how you can
help me.
Price: Okay.
DeMuth: Get over to the job and get to work. Tell
me what you need.
Price: Alright.
DeMuth: (inaudible) to the job. You’ll be on the job
at 8 o’clock and you’re to be there till 4:30.
Price: It’s ten to eight isn’t it?
DeMuth: You’ll be on the job working at 8 o’clock.
Price: Are there . . . .
DeMuth: Start working at 8 o’clock.
Price: Okay, Okay.
DeMuth: You’re to be there until 4:30.
Price: Okay. How come I don’t have a van and I’ve
had a van all this time?
DeMuth: Because I have a van. . . . I gotta a guy
I have to send it someplace else today, Jim. I asked you
what you needed on the job.5
Price: Alright, you mind if I go on strike at noon-
time.
DeMuth: Jim, you do whatever you damn please.
That’s right.
Price: Okay, I will.
DeMuth: Okay?
Price: I will.
DeMuth: You do whatever you (inaudible).
Price: On my time I’m going to strike at twelve.
DeMuth: You go out and you do whatever you think
you wanna do, Jim.
Price: Okay.
DeMuth: Get over to the job.
Price: I’m going. I gotta get my equipment, don’t I.
What about a six foot ladder, you’re gonna get one
over there?
DeMuth: It will be delivered. I asked you what you
needed.
Price: Okay, and a flashlight.
DeMuth: Pick up your tools . . . .
Price: And a flashlight.
DeMuth: Pick up your tools and go. Flashlight is a
personal tool. Get your own.6
Wattles testified that the conversation continued past the
point when the tape stopped. He testified that Price asked
DeMuth if DeMuth was saying he could not wear his union
hat. DeMuth responded that he did not say that and that he
was saying that Price should use his best judgment. At this
point Price left for his jobsite wearing the hat.
B. Conclusions with Respect to the Allegations that
Respondent’s Conduct on September 20 Violated
Section 8(a)(1) of the Act
The complaint alleges that Respondent, acting by and
through President John DeMuth, violated Section 8(a)(1) in
his dealings with Price on the morning of September 20 in
three ways. It alleges DeMuth unlawfully interrogated Price
about his union membership, activities, and sympathies. It
further alleges that DeMuth threatened Price with discharge
if Price engaged in union or concerted activities, such as
talking about a union with fellow employees or union orga-
nizers or wearing clothing with the name of the Union on
it. Last, it alleges that Respondent discontinued its practice
of allowing Price the use of a company truck because Price
joined or assisted the union and engaged in concerted activi-
ties and to discourage employees from engaging in these ac-
tivities.7
I can agree only to a limited extent with the General
Counsel’s assertions that the facts adduced herein prove the
complaint allegations. There can be little dispute with the
facts surrounding the alleged unlawful interrogation, threats
of discharge and the matter of Price’s union cap as the essen-
tial facts were all captured on the tape which is transcribed
above. What makes this case somewhat different from most
is the fact the employee involved, Price, could not himself
really be coerced by anything that DeMuth did or said. His
stated purpose in going to work on September 20 was to bait
DeMuth into saying or doing something that constituted a
violation of the Act and, I firmly believe, saying or doing
something that would justify Price going on an unfair labor
practice strike. I also believe that, based on Price’s actions,
that he had no serious intention to organize Respondent’s
employees for the Union, but instead, was intent upon mere-
ly harassing DeMuth and punishing him if he rose to the
‘‘bait.’’ As the General Counsel’s Exhibit 7 reflects, Price
began work on a full-time job around what must be, based
on the hours worked in October, the first of that month. This
job paid more than $9 more per hour than did his job at
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 DeMuth Electric, Inc., 3–CA–17527, JD issued September 29,
1993, and made the Order of the Board on November 30, 1993, by
virtue of Respondent’s failure to file exceptions to Judge’s Decision.
9 I found witnesses John DeMuth, Sandra Bertelsen and Lance
Wattles to be credible witnesses. Despite finding that DeMuth vio-
lated the Act in certain regards, I did not believe that he was lying
or otherwise knowingly distorting the facts. Wattles had no reason
to give other than truthful testimony and appeared truthful through-
out his appearance. Price on the other hand gave demonstrably inac-
curate testimony on a number of points. He also demonstrated a very
selective memory which seriously brings into question his credibility.
Wherever the testimony of DeMuth and Wattles is in conflict with
that given by Price, I credit the testimony of DeMuth, Wattles and
the company secretary, Sandra Bertelsen.
10 Reference to the charge filed in this case makes no complaint
about Respondent’s actions with regard to the union cap, the flash-
light, or the reassignment of the van. It does specifically complain
DeMuth. I believe that based on his eagerness to part com-
pany with DeMuth and cease his up to September 20, non-
existent, organizing efforts, Price was already assured of this
job.
Thus, armed with his tape recorder, Price reported to work
on the September 20 wearing his union cap. Upon seeing
him for the first time that morning, DeMuth immediately
asked Price if he was affiliated with the Union and where
he obtained his union cap. He then accused Price of being
a union ‘‘plant,’’ which Price denied initially and then admit-
ted. In the continuing conversation, Price bluntly asked if he
could talk with other employees before 8 o’clock about join-
ing the Union. DeMuth responded that he could not, that if
he wanted to talk about the Union to do it someplace else
(presumably somewhere other than the company office).
Then in the presence of at least two of his employees,
DeMuth said to Price, ‘‘you talk Union on my job between
8:00 and 4:30, you’re fired.’’ Price responded that he would
not do that, and DeMuth said, ‘‘You’re damn right you
won’t. I see a representative of any local Union on my job,
you’re fired.’’
I find that the foregoing confrontation between DeMuth
and Price constitutes a violation of the Act for unlawful in-
terrogation and the promulgation of an unlawfully broad no-
solicitation rule. Although I have found that Price, because
of his intent in going to work that morning was virtually im-
mune from any coercive behavior by DeMuth, the same can-
not be said for his other employees who observed the ex-
change. DeMuth initiated the interrogation of Price as a reac-
tion to seeing Price’s union cap. He was at least somewhat
angry during the confrontation and continued to press Price
about his affiliation with and mission on behalf of the Union.
Such an interrogation must be said to reasonably tend to co-
erce, restrain, or interfere with rights guaranteed under the
Act, if not so with Price, certainly with the other employees
observing the interrogation. The clear message to them was
overt union support would get an immediate and negative re-
sponse from the Company’s owner. Such an interrogation is
in violation of Section 8(a)(1) of the Act. See Litton Systems,
300 NLRB 324 (1990); Guille Steel Products Co., 303
NLRB 537 (1991); Dennett Road Manor Nursing Home, 295
NLRB 397 (1989); Kellwood Co., 299 NLRB 1026 (1990);
and Matheson Fast Freight, 297 NLRB 63 (1989).
I also find that the prohibition promulgated by DeMuth
against speaking with employees about union matters be-
tween 8 a.m. and 4:30 p.m., and speaking with them about
the union at anytime at the Company’s office is discrimina-
tory and overly broad, and thus unlawful. The Respondent
did not have a rule prohibiting solicitation and allowed em-
ployees to talk about virtually anything at the office and on
the job, regardless of the time, unless the conversation tended
to hurt other employees. In the absence of a nondiscrim-
inatory no-solicitation rule, and given Respondent’s past
practice, the prohibitions announced by DeMuth with termi-
nation the punishment for violation of the prohibitions, is
clearly discriminatory. The time ban on union conversations
does not make allowance for breaks or the lunch period, and
the ban on such conversations at the office extended beyond
working time. As such, the no-solicitation rules promulgated
by DeMuth in his conversation with Price in the presence of
other employees is overly broad and unlawful for this reason
as well. Ideal Elevator Corp., 295 NLRB 347 (1989);
Mack’s Supermarkets, 288 NLRB 1082 (1988); Our Way
Inc., 268 NLRB 394 (1983); and Litton Systems, supra.
The threat to discharge Price if any representative of any
local union was seen by DeMuth on his job also is unlawful.
DeMuth has absolutely no control over who the owners of
the property on which his company is performing work will
allow on their property. A similar threat, made directly to
Eagen in an earlier Board case, was found to be in violation
of Section 8(a)(1) of the Act.8
I cannot agree that DeMuth’s comments about Price’s
union cap violated the Act. DeMuth did say that he thought
the cap was inappropriate and when asked by Price whether
he could continue to wear the cap told Price to use his best
judgment. He never threatened Price with any reprisal for
wearing the cap and never told him he could not continue
to wear it. In fact, Price never removed the cap and wore
it to the jobsite after his confrontation with DeMuth. Under
these circumstances, I do not find that Respondent violated
the Act as alleged in the complaint by ‘‘threatening discharge
. . . for . . . wearing clothing with the name of the Union
on it.’’
I likewise cannot find that Respondent violated the Act by
reassigning the company van from Price to other uses on
September 20. Wattles credibly testified that employees are
not routinely assigned vans and that vans are often used at
the start of a job to get specific tools and materials to the
job. The Company’s application requires a job applicant to
have his or her own means of transportation. DeMuth told
Price during their conversation that he needed the van for
other work. At the hearing, DeMuth gave a credible reason
for the reassignment which was supported by the testimony
of another credible employee, Wattles.9 There is nothing in
the transcript of the conversation between DeMuth and Price
to indicate that the decision to reassign the van was other
than as stated by DeMuth, except for its timing, which under
the circumstances was unavoidable. There is nothing in the
record to suggest that DeMuth’s refusal to pay Price mileage
for the use of his own vehicle is contrary to company policy,
especially when the job to which Price had to travel was
only three or four blocks away. I do not believe that the
General Counsel has established that unlawful motivation
was behind the reassignment of the van on September 20,
and to the contrary, find that DeMuth had a reasonable busi-
ness reason for so doing. Price did not continue his employ-
ment with DeMuth to learn if the van was permanently reas-
signed or just temporarily assigned for the day.10
943DEMUTH ELECTRIC, INC.
of DeMuth’s interrogation of Price and his threats of discharge, how-
ever. I believe that their omission from the charge is indicative of
the importance Price gave these actions at time of their occurrence,
his testimony at the hearing notwithstanding.
11 General Counsel asserts that denying Price the use of a company
flashlight on September 20 is a separate violation of the Act. This
was not alleged to be a violation in the complaint and no amend-
ment to the complaint was offered by the General Counsel. Thus,
I will not find that DeMuth’s actions in this regard are unlawful as
he was not put on notice that he had to defend this action. I would
note that no one contradicted DeMuth’s statement that a flashlight
was a personal tool, to be supplied by the employee as are a number
of other tools.
C. Facts Relating to the Alleged Unfair Labor Practice
Strike by Price on September 20
Price left the office of Respondent after the above-tran-
scribed conversation and worked at the jobsite until about
five past noon. He testified that he was visited at the site by
DeMuth who brought him some materials. When he left at
noon, he called DeMuth and informed him that he was going
on strike. He gave DeMuth no reason for his actions though
specifically asked to do so by DeMuth. According to Price,
he went on strike because of his conversation with and treat-
ment by DeMuth that morning. ‘‘He told me that I could not
take the company van, he told me that if I talked to any em-
ployees about the union, he would fire me, if I talked to—
if anybody from the union came out to see me, he would fire
me and he told me I could not have a flashlight to work in
the basement where it was dark and dangerous and I was—
that was the reasons I went on strike.’’11 At a later point he
testified that he reported to the jobsite that morning rather
than going on strike immediately to see if DeMuth would
come to the job and harass him or fire him. When that did
not happen, he went on strike at noon. He was met at that
time at the jobsite by Eagen and the two men went directly
to the Union’s office and that afternoon played the tape Price
had made earlier.
That same day, DeMuth sent Price a letter, which Price
admits receiving. The letter reads:
At 12:30 P.M. this day, you called the office and
said you are going on strike. I stopped by the job loca-
tion you were working on at approximately 1:30 P.M.
and you were not there. Will you please advise as to
the reason you are on strike. You are expected to come
to work and be on the job ready to begin work at 8:00
A.M. daily and work until 4:30 P.M. allowing a 1/2
hour for lunch from 12:00 to 12:30 P.M. Please report
to work immediately as indicated above or advise as to
your reasons for your absence.
To date, Price has not replied to this letter, nor has he spo-
ken with DeMuth, other than during this hearing. He testified
that he did not respond because he talked to the Union and
it was determined that it was not ‘‘prudent’’ to respond. On
December 31, he did write to DeMuth the following letter:
I am ending my strike, I am making an unconditional
offer to return to work. Please advise me when and
where to report.’’
DeMuth has not reinstated Price, nor has he hired any em-
ployees since the date of Price’s letter, which Respondent re-
ceived on January 10, 1994. DeMuth contended during the
investigation stage of this case that he considered Price to be
a voluntary quit. At the trial, DeMuth seemed to agree that
Price was on strike, but that he did not have enough business
to allow him to reinstate Price. I do not find it really signifi-
cant that DeMuth may be confused as to Price’s legal status
as he is not a labor attorney and represented himself in this
proceeding.
Price testified that he called DeMuth’s office in January
and asked the office secretary if he could speak with John
DeMuth. He also said he was willing to come back to work
and could DeMuth tell him when and where to report. The
secretary said DeMuth was not in. According to Price, he re-
ceived no response to this phone call. He has made no effort
to contact the Respondent since that date. Price admitted to
working for other companies during the period from Septem-
ber 20 to December 31, and thereafter. The General Coun-
sel’s Exhibit 7 reflects that Price found work almost imme-
diately and worked almost full time thereafter for several em-
ployers at a rate of pay substantially higher than he was re-
ceiving at DeMuth. For example he worked full time for
Cornell University in Ithaca, New York, beginning in Octo-
ber.
DeMuth’s secretary credibly testified that Price did not
call in January or thereafter about reinstatement. I credit her
denial of Price’s testimony in this regard. She also testified
that Respondent has had several inquiries about employment
from journeyman electricians since January 10, but has hired
no one. Respondent did hire two electrician’s helpers in No-
vember, one of whom was discharged before December 31
and the other, Paul Herbert, who is still employed by
DeMuth. DeMuth testified that the job for which Price was
hired was completed in November, by shuffling other em-
ployees. Since the completion of that job, he has not needed
another electrician.
A comparison of Herbert’s application form with that of
Price reveals that Price possesses many more job skills than
does Herbert. For example, Price indicated that he under-
stood control transformers, step-down transformers, buck
boost transformers, primary/secondary transformers, motor
control starters, control wiring, limiter switches, photo eyes,
temperature control wiring, basic function of unit heaters,
basic function of HVAC, high/low cutouts, damper motors,
and controls; whereas, Herbert did not understand these
skills. The majority of work performed by Herbert is what
Respondent calls shop duties, which includes maintenance,
cleanup in the shop, and delivery duties. DeMuth elaborated
that Herbert cleans and repairs tools and materials, and deliv-
ers equipment and tools to jobs. On occasion, he will assist
a company electrician in performing his tasks. To a far lesser
degree, the Company’s electricians also perform shop duties.
Wattles characterized Herbert as shop help or a shop man.
He also testified that Herbert goes to jobs occasionally and
assists electricians in the performance of their work and pur-
suant to their supervision. Such tasks involve installing con-
duit, pulling wire, and installation of lighting fixtures, all
tasks described as basic and performed regularly by the Re-
spondent’s electrician employees.
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The Union had filed about eight charges against DeMuth, sev-
eral of which were withdrawn on advice of the Region. Many of
these charges concerned DeMuth not hiring electricians directed by
Eagen to file applications for employment with DeMuth. As noted
above, except for electrician’s helper Herbert, DeMuth has hired no
one since September 20, who remained on the payroll past Decem-
ber 31.
13 Though in the context of determining eligibility to vote in rep-
resentation election, the Board has found under similar facts that a
striker has abandoned his employment and resigned his position. See
Belt Supermarket, 260 NLRB 118 (1982).
14 I am aware of a line of Board cases wherein unrepresented em-
ployees who engage in a brief concerted and protected walkout do
not give up their rights because they do not give notice of the pur-
pose of the walkout to the employer. I do not believe these cases
are in point herein as Price is in effect represented by the Union and
the Union was a party to the decision not to inform DeMuth about
the reasons for the strike. These cases also do not involve strikes.
D. Was Price Engaged in a Strike and Does
Respondent Have Any Obligation to Reinstate Price
I have found above that Respondent committed certain un-
fair labor practices in violation of Section 8(a)(1) of the Act.
Price contends that he went ‘‘on strike’’ because of these
acts and others, which I have found not to be unfair labor
practices. As I have indicated above, from all the cir-
cumstances, I believe that Price’s intent to strike or at least
leave the employ of DeMuth on September 20, was made be-
fore he reported for work on the September 20, and I believe
it is reasonable to infer that this intent was formed in large
part by the prospect of a better paying job elsewhere. On the
other hand, I believe that the unfair labor practices commit-
ted by DeMuth gave Price an excuse to call his leaving a
strike and were thus, at least partly, the cause of the
‘‘strike,’’ if indeed Price’s leaving at noon can be properly
characterized as such.
Was Price on strike or did he simply quit his employment
with DeMuth? Webster’s defines a ‘‘strike’ as (a) a work
stoppage by a body of workers to enforce compliance with
demands made on an employer, or (b) a temporary stoppage
of activities in protest against an act or condition.’’ I find it
impossible to find that Price’s actions fit either common def-
inition of a strike. Leaving aside the fact that he did not act
in concert with any other employees, he made no demands
nor did he protest at the time he went on strike or thereafter.
Price did not go on strike immediately after the unfair labor
practices were committed. Instead, he worked 4 hours to see
if DeMuth would take any other actions against him, and
when that did not happen, called in and said he was on
strike. When asked by DeMuth why he was going on strike,
Price gave no answer. He likewise did not answer DeMuth’s
letter asking him to return to work and/or explain why he
was on strike.
Price and the Union jointly decided not to reveal the na-
ture of and reasons for the strike to either DeMuth or
DeMuth’s employees. Both the strike itself and Price’s re-
fusal to state why he was on strike directly refute Price’s
stated objective in working for Respondent, that is, to orga-
nize the work force. By going on strike, he removes himself
from the work force, and there is no evidence that he there-
after contacted any employee of DeMuth about anything.
Without notice of the reasons for the strike, the employees
cannot be apprised of any alleged unlawful or unfair prac-
tices by DeMuth which might sway their sympathies in favor
of the Union. On the other hand, such a refusal has much
to do with harassing DeMuth, which I believe was Price’s
main intent.12
Organizing Respondent’s employees is a legitimate and
lawful objective of the Union. However, I cannot see how
Price walking off the job without explanation in any way fur-
thers that objective. He is not only no longer in a position
to organize, but is not giving DeMuth an opportunity to cor-
rect the errors in his understanding of the law. He is simi-
larly not giving the employees of DeMuth any notice that
there is something unlawful or unfair about the way DeMuth
conducts labor relations. The only purpose I can discern is
that leaving gives Price the freedom to take a better job. He
or the Union could have filed the same charges with the
Board as were filed if DeMuth failed to respond to a demand
that he cure his unlawful actions. Choosing to file charges
with the Board rather than picketing or even telling DeMuth
what the strike is about is certainly Price’s and/or the
Union’s choice. However, I believe the choice made under
the circumstances of this case also directly affects the rem-
edy sought by Price and the Union.
This is so because I believe that their actions give cre-
dence to Respondent’s initial view that Price was a voluntary
quit rather than a striker. He did not picket, he did not ex-
plain why he was on strike, he did not ask to negotiate dif-
ferences and he did not contact Respondent for over 3
months. On the other hand, he did take full-time employment
in his line of trade in a town some 30 miles from Elmira,
and thereafter remain almost fully employed, at scale wages.
Any objective view of his actions poststrike would lead one
to believe that he had either voluntarily quit his employment
with DeMuth or had abandoned his strike, if he was in fact
on strike. Under these circumstances, I do not find that Re-
spondent had a duty to reinstate Price when he made his
offer to return to work in January 1994.13
I would have no hesitation in invoking the full range of
remedies against DeMuth had he been given any opportunity
by Price or the Union to rectify his mistaken actions of the
morning of September 20 by giving him notice of the pur-
pose of Price’s ‘‘strike.’’ Having refused to do so, I do not
believe that Price and the Union are acting in good faith with
respect to DeMuth or the Board, nor do I believe that it ef-
fectuates the policies of the Act to accord Price the rights of
an unreinstated unfair labor practice striker. Price’s action in
refusing to explain the purpose or cause of the strike was
taken purposefully by Price and the Union, with full knowl-
edge of their rights and ability to publicize their dispute with
DeMuth.14 Such action does not promote stability in the
workplace or foster harmony between employer and em-
ployee, nor does it aid the employees in exercising their
rights under the Act.
Therefore, for the reasons stated, I find that Price volun-
tarily quit his employment with Respondent on September
20, or by his conscious refusal to provide Respondent with
the reasons for his ‘‘strike,’’ and by taking a full-time job
elsewhere shortly after September 20, has abandoned the
strike, and thus waived his right to reinstatement as an unfair
labor practice striker. I would dismiss those portions of the
945DEMUTH ELECTRIC, INC.
15 In the event the Board disagrees with this view on appeal and
finds that Price was an unfair labor practice striker with the rein-
statement rights attendant to that status, he would have been entitled
to immediate reinstatement to his former position in January 1994.
Respondent did not meet its burden of showing a business justifica-
tion for not reinstating him at that time. It continued to employ its
electrician’s helper, Herbert, who was hired after the strike began.
Herbert, though clearly not an electrician of Price’s caliber, does
perform work formerly performed by Price and regularly performed
by the other electricians employed by DeMuth. Such work includes
basic electrical tasks as well as shop work. The full time work per-
formed by Herbert is the same as or similar to the work performed
by Price. Given this fact, Respondent cannot validly claim lack of
business for its reason for failing to reinstate Price. If Price is enti-
tled to reinstatement as an unfair labor practice striker, then Re-
spondent’s refusal to immediately reinstate him upon receipt of
Price’s unconditional offer to return to work is unlawful. See
Hydrologics, Inc., 293 NLRB 1060 (1989); Robert G. Andrew, Inc.,
300 NLRB 444, 457 (1990).
16 In the event that the Board, on appeal, finds that Price was an
unfair labor practice striker and that Respondent unlawfully refused
to reinstate him upon receipt of Price’s unconditional offer to return
to work, I would recommend in that circumstance that Respondent
be ordered to offer Price immediate reinstatement to his former posi-
tion, discharging if necessary, any employee hired to replace him
and make Price whole for any loss of wages or benefits he may have
suffered by virtue of Respondent’s unlawful failure and refusal to re-
instate him, with backpay commencing from January 10, 1994, to
the date Respondent offers Price reinstatement. Backpay is to be
computed according to the Board’s formula as set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
17 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 by Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
18 As noted in the remedy section of this decision, in the event the
Board finds that Price was entitled to reinstatement as an unfair
labor practice striker, the notice should be changed to include the
following:
(a) Offer immediate reinstatement to James Price to his former
position, discharging, if necessary, any employee hired to re-
place him, and make James Price whole for any loss of wages
or benefits he may have suffered by virtue of our unlawful dis-
crimination against him, with interest as set forth in the remedy
section of this decision.
(b) 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 re-
ports and all other records necessary or useful in complying with
the terms of this Order.
19 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.’’
complaint alleging that Respondent’s failure to reinstate Price
violate the Act.15
CONCLUSIONS OF LAW
1. DeMuth Electric, Inc. is an employer engaged in com-
merce 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 has engaged in conduct in violation of Sec-
tion 8(a)(1) of the Act by:
a. Coercively interrogating its employee, James Price, in
the presence of other employees about his union sympathies,
activities, and affiliation.
b. Threatening its employee, James Price, with discharge
if he spoke with other employees about joining the Union at
the Respondent’s office or between the hours of 8 a.m. and
4:30 p.m., while maintaining no prohibition against other
forms of communication or solicitation between employees at
the office or at the times specified, and by not excluding
lunchtime and breaktime from the prohibition.
c. Threatening its employee, James Price, with discharge
if any union representative appeared on the premises of any
job on which Respondent was performing work.
d. The unfair labor practices that Respondent has been en-
gaging in are unfair labor practices affecting commerce with-
in the meaning of Section 2(6) and (7) of the Act.
e. Respondent did not engage in the other unfair labor
practices alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, it is rec-
ommended that it be Ordered to cease and desist therefrom
and post appropriate notice. 16
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, DeMuth Electric, Inc., Elmira, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees about their
union sympathies, activities, and affiliation.
(b) Threatening its employees with discharge if they speak
with other employees about joining the Union at the Re-
spondent’s office or between the hours of 8 a.m. and 4:30
p.m., while maintaining no prohibition against other forms of
communication or solicitation between employees at the of-
fice or at the times specified, and by not excluding lunchtime
and breaktime from the prohibition.
(c) Threatening its employees with discharge if any union
representative appeared on the premises of any job on which
Respondent was performing work.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.18
(a) Post at its facility in Elmira, New York, copies of the
attached notice marked ‘‘Appendix.’’19 Copies of this notice
on forms provided by the Regional Director for Region 3,
shall, after being signed by Respondent, be posted by it im-
mediately upon receipt and be maintained by it for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that such
notices are not altered, defaced, or covered by any other ma-
terial.
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 all employees these rights.
To organize themselves
To form, join, or assist unions
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.
In recognition of these rights we hereby notify our em-
ployees
WE WILL NOT coercively interrogate our employees about
their union sympathies, activities, and affiliation.
WE WILL NOT threaten our employees with discharge if
they speak with other employees about joining the Union at
the Respondent’s office or between the hours of 8 a.m. and
4:30 p.m., while maintaining no prohibition against other
forms of communication or solicitation between employees at
the office or at the times specified, and by not excluding
lunchtime and breaktime from the prohibition.
WE WILL NOT threaten our employees with discharge if
any union representative appears on the premises of any job
on which we are performing work.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights
guaranteed them by Section 7 of the Act.
DEMUTH ELECTRIC, INC.