Dilling Mechanical Contractors

National Labor Relations Board - Board Decisions

Sep 18, 1995

318 N.L.R.B. 1140 (N.L.R.B. 1995)

1140
318 NLRB No. 119
DILLING MECHANICAL CONTRACTORS
1 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 judge found in the first sentence of sec. B, par. three, that
the Respondent laid off Jeff Guinn in April 1994, whereas the cor-
rect date should read April 1993. Further, in the second sentence of
sec. D,6, par. 1, the judge found that five unfair labor practice strik-
ers made an unconditional offer to return to work on April 19, 1993.
Based on the record, we find that the evidence shows that the strik-
ers actually made this offer on April 20, 1994. Nevertheless, we con-
clude that these corrections are insufficient to affect the judge’s sub-
stantive findings.
2 In adopting the judge’s finding that the Respondent did not vio-
late Sec. 8(a)(3) of the Act by constructively discharging employee
David Hicks, we find it unnecessary to rely on his comments in the
eighth sentence of sec. D,3, par. 10, where he noted that other em-
ployees had endured the Respondent’s ‘‘general harassment’’ with-
out quitting.
1 The unions involved in these consolidated cases will be collec-
tively referred to as the ‘‘Unions.’’
Dilling Mechanical Contractors, Inc. and Inter-
national Brotherhood of Electrical Workers,
Local Union No. 668, AFL–CIO and Indiana
State Pipe Trades Association, United Associa-
tion of Plumbers and Pipefitters, AFL–CIO
and Plumbers and Steamfitters Local Union
No. 166, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada.
Cases 25–CA–22501–1, 25–CA–22501–2, 25–
CA–23157, 25–CA–22549, and 25–CA–23386
September 18, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On May 19, 1995, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent and Charging Party Electrical Workers Local
No. 668 filed exceptions and supporting briefs, and the
General Counsel filed limited exceptions and a sup-
porting brief, as well as an answering brief to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Dilling Mechanical Con-
tractors, Inc., Logansport, Indiana, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Walter Steele, Esq., for the General Counsel.
Michael L. Einterz, Esq., of Indianapolis, Indiana, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Upon
charges filed in Cases 25–CA–22501–1 (amended) and 25–
CA–22501–2 (amended) by International Brotherhood of
Electrical Workers, Local Union No. 668, AFL–CIO (Elec-
trical Workers), and upon a charge filed in Case 25–CA–
22549 by the Indiana State Pipe Trades Association (Pipe
Trades Association), a consolidated complaint and notice of
hearing issued on July 27, 1993, against Dilling Mechanical
Contractors, Inc. (Dilling or Respondent). Upon a charge
filed in Case 25–CA–23386 by Plumbers and Steamfitters
Local Union No. 166 (Plumbers),1 an order consolidating
cases, consolidated complaint and notice of hearing issued on
October 3, 1994, in Cases 25–CA–22501–1 (amended), 25–
CA–22501–2 (amended), 25–CA–22549, and 25–CA–23386
(amended) against Respondent. After further amendments, an
order consolidating cases, consolidated complaint and notice
of hearing issued on November 30, 1994, alleging that Re-
spondent has engaged in conduct in violation of Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act).
Hearing was held in these matters in Lafayette, Indiana, on
March 6–9, 1995. Briefs were received from the parties on
or about April 10, 1995. Based on the entire record including
my observation of the demeanor of the witnesses, and after
consideration of the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and principal
place of business in Logansport, Indiana, has been engaged
in the construction industry as an electrical, mechanical, and
general contractor. Respondent admits the jurisdictional alle-
gations of the complaint and I find that at all material times
it has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE INVOLVED LABOR ORGANIZATIONS
Electrical Workers, Plumbers, and Pipe Trades Association
are labor organizations within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Issues Framed by
the Complaint
Dick Dilling incorporated Respondent in 1980 and serves
as its president. His wife is secretary treasurer and a nephew,
1141DILLING MECHANICAL CONTRACTORS
2 There is no proof in the record to support this allegation and I
recommend it be dismissed.
Eric Ott, is vice president. Respondent is an industrial con-
tractor offering turnkey industrial work, process piping, and
electrical work. Its main office is in Logansport, Indiana, and
it maintains branch offices in Fort Wayne and Warsaw, Indi-
ana. Dilling employs about 100 people in virtually every dis-
cipline in the construction industry. The bulk of its business
is in what it calls process piping, such as steam, chemical,
and gas piping. On the mechanical side of the business, man-
agement consists of Eric Ott, Jack Koehne, Frank Freeman,
Jerry Bunn, and Bill Drinkwine and Richard Eldridge. On the
electrical side of the business, management consists of Glen
Click and Fred Williams.
During all or part of 1992, 1993, and 1994, Dilling pro-
vided electrical and/or mechanical contracting services at,
inter alia, construction sites denoted as the Logansport Me-
morial Hospital, the TRW jobsite, the Morton jobsite, the
Essex jobsite, the Weaver Popcorn jobsite, and the R. R.
Donnelly jobsite. Respondent has admitted the supervisory or
agency status of the following employees: Richard Dilling,
owner; Beverly Dilling, secretary; Jerry Bunn, field super-
intendent; Glen Click, field superintendent; Dick Eldridge,
mechanical field supervisor; Jack Koehne, project manager;
Ed Queen, foreman; Roger Seely, project supervisor; Fred
Williams, electrical division director; and Paul (surname un-
known), acting mechanical superintendent on the R. R. Don-
nelly jobsite.
Beginning in 1992, the two Unions involved here began
an attempt at organizing the electrical, plumbing, and pipe-
fitting employees of Respondent. The Electrical Workers was
evidently the most active in this regard and managed by the
beginning of 1993 to have active support from about 50 per-
cent of Respondent’s electrical employees. The number of
employees supporting the efforts of the Pipe Trades Associa-
tion and Plumbers is not documented in the record. At about
this time, the campaigns became known to Respondent and
the names of electrical workers union activists also became
known. As the evidence detailed below will demonstrate, Re-
spondent responded vigorously to stop the spread of union
support and to rid itself of the known union adherents.
On the electrical and mechanical sides of its business, Re-
spondent began vigorously enforcing company rules and cre-
ating rules to provide a means of disciplining these employ-
ees and to stifle organizational activities. In addition, on the
electrical side, it transferred virtually all known union sup-
porters to one job, the Essex jobsite, and thereafter imposed
a supervisor on that job whose clear purpose was to harass
the supporters. In the weeks that followed this move, some
employees quit, some were laid off, and the remainder went
on strike. The complaint alleges that the layoffs were
discriminatorily motivated, and the strike was an unfair labor
practice strike. Three employees quit their employment from
the Essex jobsite and they are alleged to have been construc-
tively discharged. I agree in part with these allegations. The
strike was certainly an unfair labor practice strike and I be-
lieve one employee was constructively discharged. The lay-
off, however, appears to be economically motivated. Shortly
after the involved strike began, the employees involved in it
made an unconditional offer to return to work. The Respond-
ent’s action in response to that offer is alleged to be a refusal
to reinstate and thus the strikers were terminated. I agree
with this allegation.
With respect to the campaign involving plumbing employ-
ees, the Respondent is alleged to have violated the Act in
certain, more isolated incidents. Specifically, the complaint
alleges that Respondent has committed unfair labor practices
through the actions of one or more of its supervisors or
agents, as follows:
1. (a) About December 2, 1992, by Dick Eldridge, at the
trailer at the Logansport Memorial Hospital jobsite, threat-
ened employees with discharge if they engaged in union and
protected concerted activities.
(b) About December 7, 1992, by Fred Williams, in one of
Respondent’s trucks, informed employees that an employee’s
demotion from foreman was because of his union and pro-
tected concerted activities.
(c) About January 6, 1993, by oral announcement of Fred
Williams, at the TRW jobsite, imposed more onerous and
rigorous terms and conditions of employment on its electrical
worker employees when it:
(i) Instituted more strict enforcement of its rules of
conduct and employment rules because its employees
engaged in union and protected concerted activities.
(ii) Engaged its former break policy to more severely
restrict electrical employees’ freedom of movement on
the jobsite because its employees engaged in union and
protected concerted activities.
(d) About January 6, 1993, by oral announcement at the
TRW jobsite, promulgated and since then has maintained a
rule restricting employees’ union activities to their time off
and away from Respondent’s premises.
(e) About January 8, 1993, by Glen Click at the Morton
jobsite, interrogated its employees about their union member-
ship, activities, and sympathies and the union membership,
activities, and sympathies of other employees.
(f) About January 15, 1993, by Glen Click at the Morton
jobsite, interrogated employees about their union member-
ship, activities, and sympathies and the union membership,
activities, and sympathies of other employees.
(g) About February 8, 1993, and thereafter in February,
March, and April 1993, by Roger Seely, at the Essex jobsite,
subjected certain of its employees to more strict surveillance
of their work product, inclusive of standing over and near
employees while they worked, physical intimidation, and
verbal abuse because they engaged in union and protected
concerted activities.
(h) About February and March 1993, by Roger Seely, at
the Essex jobsite, by taking photographs of employees in-
volved in picketing, engaged in surveillance of employees
engaged in union and protected concerted activities.
(i) About February 18, 1993, by Roger Seely at the Essex
jobsite, threatened employees with discharge because they
engaged in union and protected concerted activities.2
(j) About May 31, 1993, by Jerry Bunn, at the Weaver
Popcorn jobsite:
(i) Instructed employees to cease their union and
protected concerted activities.
(ii) Created an impression among employees that
their union and protected concerted activities were
under surveillance by Respondent.
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 There is no proof regarding this allegation and I recommend it
be dismissed.
4 There is no proof in the record regarding the following two alle-
gations relating to Ed Queen and I recommend they be dismissed.
5 In the transcript, Bishop is referred to as Robert Bishop. Every
bit of documentation in the record however refers to him as Bill, and
he will be referred to hereinafter as Bill Bishop.
(k) About August 3, 1994, by Ed Queen at the R. R. Don-
nelly jobsite:
(i) Prohibited employees from discussing union-relat-
ed subjects during worktime;3 and
(ii) prohibited its employees from wearing or other-
wise displaying union insignia.
(l) About August 8, 1994, by Ed Queen at the R. R. Don-
nelly jobsite, threatened to discharge an employee because he
wore clothing bearing union insignia.
(m) About August 9, 1994, by Paul (surname unknown),
at the R. R. Donnelly jobsite, prohibited employees from
wearing or otherwise displaying union insignia.
(n) About August 9, 1994, by Ed Queen at the R. R. Don-
nelly jobsite:4
(i) Impliedly told employees that it was imposing
more onerous and rigorous terms and conditions of em-
ployment on its mechanical employees at the jobsite,
because they had joined, formed, or assisted the Plumb-
ers.
(ii) threatened to discipline its mechanical employees
at the jobsite because they had joined, formed, or as-
sisted the Plumbers.
2. (a) About January 11, 1993, Respondent issued verbal
reprimands to its employees David Hicks, J. E. Culpepper,
and John Culpepper.
(b) About February 8, 1993, imposed more onerous and
rigorous terms and conditions of employment on its electrical
worker employees at the Essex jobsite, by assigning Roger
Seely to oversee their work and handle all personnel matters.
(c) The Respondent caused the termination of its below-
listed employees about the date listed beside their names by
the conduct described above in paragraphs 1(g), (h), and (i)
and 2(a) and (b):
John Culpepper February 9, 1993
David Hicks February 22, 1993
J. E. Culpepper March 3, 1993
(d) About February 10, 1993, Respondent imposed more
onerous and rigorous terms and conditions of employment on
its electrical worker employees by introducing a production
quota system at the Essex jobsite.
(e) About March 16, 1993, Respondent issued a written
reprimand to its employee Lanis Smith.
(f) About April 8, 1993, Respondent laid off its employees
Bill Bishop, Albert Cadwallader, Jeff Guinn, and Lanis
Smith, and since that date has refused to reinstate these em-
ployees.5
(g) Between August 3 and 11, 1994, Respondent imposed
more onerous and rigorous terms and conditions of employ-
ment on its employee Thomas J. Zent at the R. R. Donnelly
jobsite, including but not limited to, restricting the length of
his break periods and monitoring his use of safety glasses.
(h) About August 8, 1994, Respondent terminated its em-
ployee Thomas J. Zent.
3. (a) Since about April 12, 1993, certain employees of
Respondent employed at the Essex jobsite ceased work
concertedly and engaged in a strike caused by Respondent’s
unfair labor practices described above in paragraphs 1(g),
(h), and (i) and paragraphs 2(b) and (c).
(b) About April 20, 1993, by letter dated April 19, 1993,
sent via facsimile, and by oral announcement, all employees
who had engaged in the strike made an unconditional offer
to return to work.
(c) Since about April 20, 1993, Respondent has failed and
refused to reinstate the striking employees who made the un-
conditional offer to return to work to their former positions
of employment or to substantially equivalent positions.
(d) About April 20, 1993, Respondent, by failing to rein-
stated the involved strikers, caused their termination.
B. The Organizing Campaign by the Electrical Workers
Respondent’s electrical employee Robert Guinn was called
by the Electrical Workers local business agent, Ed Butler, at
some point prior to August 1992, and was asked to help or-
ganize Respondent’s electricians. Guinn testified he told But-
ler he would help if the Local Union would issue him a
membership card in the Union. Butler agreed and Guinn was
made a member of the Local Union on August 13, 1992.
Thereafter, Guinn talked to employees and encouraged them
to sign authorization cards. He himself signed a card in Au-
gust 1992. At the time he agreed to aid the organizational
effort, he was an electrical foreman for Respondent. He was
demoted from foreman to a journeyman position in Decem-
ber 1992. He had held the foreman’s position since 1989 or
1990.
Joel Lafleur worked as an electrical foreman for Respond-
ent from January 1992 until April 1993. He is a member of
Local 668 and before that was a member of another IBEW
local in Louisiana. He contacted Butler in December 1991
and asked if Butler wanted him to engage in any organizing
for him. Butler said he was trying to organize Dilling, but
that Respondent was not taking employee applications at the
time. Lafleur noted he had worked for Dilling before and
said he would call and see if he could get hired. He called
and was hired, and thereafter stayed in contact with Butler,
informing him about what was happening at the Company.
During his employment interview with Respondent’s elec-
trical project supervisor, Fred Williams, Williams asked him
if he was there to organize and Lafleur replied that he had
not organized the Company when he last worked for it in
1988. Williams said, ‘‘Okay, I just don’t want any union
trouble.’’
Robert Guinn’s son Jeff worked for Respondent for about
2 years prior to his layoff from the Essex job in April 1994.
He was employed as a laborer and electrician apprentice, and
worked on a number of jobs until he was assigned to the
Essex job. He signed an authorization card with the IBEW
in August 1992 and was a member of the Union’s organizing
committee.
Gene Kaufman was employed by Respondent as an elec-
trical apprentice from July 2, 1990, until he went on strike
in April 1993. He signed an authorization card in August
1992 and was a member of the Union’s organizing commit-
tee.
1143DILLING MECHANICAL CONTRACTORS
6 Smith is referred to in this record as Lanis, Lanny, and Lanie
Smith. In the interest of clarity, he is referred to as Lanis throughout
this decision.
7 Subsequent to the events in question, this individual was married
and is now known as Donna Hoaks. References in the transcript to
her however are in the name Serna, and that is how she is referred
to in this decision.
8 This letter is referred to in the testimony of several witnesses and
I have seen the letter. Both the General Counsel and Respondent’s
counsel refer to it in their briefs, citing it as R. Exh. 1. The official
set of exhibits in this record, however, does not include the letter
and it is not listed as an exhibit in the official transcript. R. Exh.
1 in the official exhibits is an August 4, 1993 letter relating to the
strike.
9 The complaint allegations set out above correspond exactly to the
complaint, but have been renumbered. The numbers used here refer
to the allegations as renumbered above.
10 The discharge or demotion of a supervisor is unlawful when it
interferes with the right of employees to exercise their rights under
Sec. 7 of the Act, as when they give testimony adverse to their em-
ployers’ interest or when they refuse to commit unfair labor prac-
tices. Parker-Robb Chevrolet, Inc., 262 NLRB 402, 404 (1982).
Lanis Smith was employed by Respondent in November
1992 and worked as either a journeyman electrical or elec-
trical foreman until he went on strike in April 1993.6 He
signed an authorization card with the Local Union about the
time he went to work for Respondent, but did not actively
engage in organizing until after the first of the year 1993. He
was a member of the organizing committee, wore union
stickers, and engaged in informational picketing at the Essex
jobsite.
Albert Cadwallader was hired as an electrical apprentice
by Respondent in November 1992 and worked in that capac-
ity until his layoff in April 1993. He signed an authorization
card in December 1992, was a member of the organizing
committee, and wore a union T-shirt at work.
Donna Serna (Hoaks) was hired as a journeyman elec-
trician in November 1992 and worked in that capacity until
the strike in April 1993.7 She signed an authorization card
on January 4 and was listed as a member of the organizing
committee. After January 4, she wore a union T-shirt and af-
fixed union decals to her personal property.
John Culpepper, his brother J. E. Culpepper, and David
Hicks are union journeymen electricians hired by Respondent
in November 1992. Their union affiliation was known by Re-
spondent at the time of hiring. They worked until they quit
at various times in February and March 1993. They were all
members of the union organizing committee.
During the fall of 1992, the Union conducted meetings of
those employees who were aiding in the organizing effort.
On January 4, 1993, Butler sent to Dick Dilling a letter ad-
vising him that employees named in the letter were members
of the Union and would be engaged in organizing other of
Respondent’s employees. The employees listed as comprising
the Union’s organizing committee were:
Bob Guinn Mike Boatman Sr.
Bill Bishop Lanis Smith
Jeff Guinn Mike Boatman Jr.
Albert Cadwallader J. E. Culpepper
John Culpepper David Hicks
Gene Kaufman Donna Serna
Ed Winegardner
After this letter was sent, some of the named committee
members wore union insignia to work, including wearing
union T-shirts and placing union stickers on their hats and
toolboxes.
Dick Dilling responded by letter shortly thereafter, stating
that he respected all of his employees’ rights, and that those
rights would not be violated by Dilling. He also requested
that the organizing committee not attempt to violate any of
his employees’ rights either.8
An RC petition was filed by the Union on January 13,
1993, in Case 23–RC–9219. At this time, the electrical union
supporters comprised about half of all Respondent’s elec-
trical employees.
C. Alleged Violations of Section 8(a)(1) Involving
Electrical Employees
1. Respondent did not violate the Act with respect to
Bob Guinn’s demotion because of his union support
(complaint allegation 1(b))9
Robert Guinn was employed by Respondent in 1977 or
1978 as a journeyman electrician and then left that employ-
ment. He was again employed in 1989 as a journeyman and
a few months later was promoted to foreman and given the
responsibility of being in charge of completion of the elec-
trical work on various of Respondent’s jobs, in the course of
which he supervised other electricians employed by Re-
spondent. He was demoted back to journeyman in December
1992. He was told by Fred Williams that Dick Dilling or-
dered the demotion because he had left a job after 10 hours,
calling in another electrician to fix a problem that had devel-
oped on the job. Williams also told him that the demotion
was caused by Guinn’s union activities, not specifying what
activities to which he had reference. The reason given by
Dilling was in fact true, Guinn had left the job in violation
of company rules that required the foreman to remain on a
job as long as it was working. This was the only job Guinn
could remember where he had left contrary to the rules. Even
giving full credence to the asserted fact that it was Guinn’s
union activity that was behind the demotion, however, no
violation of the Act occurred.
Joel Lafleur testified that Donny Thompson, a journeyman
on a project over which he was foreman, was transferred to
another job to take over as foreman for Bob Guinn. Specifi-
cally, Lafleur testified that when Thompson said that he was
making this move, he told Thompson that he thought it was
Fred Williams’ project. Thompson replied, ‘‘Well, they have
got a organizing campaign going. Cole Zartman and Bob
Guinn are behind it.’’ Lafleur asked if Williams said what
happened to Guinn, and Thompson replied, ‘‘No. He didn’t
say anything else except he was going to be running the job
that Bob Guinn was running.’’ Guinn’s activities were
known to management as he had tried to persuade Electrical
Field Superintendent Glen Click to join the Union in Decem-
ber 1992.
The demotion itself did not violate the Act because it in-
volved a supervisory position and did not fall into one of the
exceptions to the rule that discharging or disciplining super-
visors for engaging in union activity is not violative.10 The
Board has held that if a respondent seeks to use an otherwise
lawful discharge to threaten employees, an 8(a)(1) violation
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Respondent’s rule regarding breaks and lunch is as follows:
A ten minute break will be allowed from 9 a.m. to 9:10 a.m.
Lunch time will be from 11:30 a.m. to 12 p.m. A ten minute
break will be allowed from 2 p.m. to 2:10 p.m. If Owner or
other crafts on a particular job cause a change in times we will
be forced to adjust same.
Its rule on tardiness and absenteeism is as follows:
If tardy for personal reasons or unexpected problems, an em-
ployee is required to contact the office by 6 a.m. Tardiness will
be accepted when this rule is followed. If a call is not received
by 6 a.m. disciplinary action will be taken. Absenteeism—If a
personal day off is required by an employee, three days advance
notice must be given to your job foreman. If notification is not
given, disciplinary action will be taken.
The rule on disciplinary action is as follows:
All individual disciplinary action occurrences will be identi-
fied as follows: 1st—Verbal Warning; 2nd—Write-Up Slip;
3rd—Five Day Release Without Pay; and 4th—Termination.
Employees can have individual occurrences removed from their
work record at the completion of every 180 day work period
that is disciplinary free.
12 The Respondent uses the phrase ‘‘run a job’’ synonymously
with being the job foreman.
13 Though the 10-minute time was not new, the evidence reflects
that going to and from the place where breaks were taken was not
theretofore included in the breaktime.
14 At about the same time, a similar meeting was held with the
electrical workers at the Essex jobsite.
may be found on the basis of such a threat. Snyder Bros.
Sun-Ray Drug, 208 NLRB 628 (1974). Here the only person
that the evidence reflects that was told that the demotion was
because of union activity was Guinn himself. Lafleur may
have drawn the assumption that Guinn’s union activity was
the reason for his removal as supervisor, but Thompson indi-
cated that Williams did not say what happened to Guinn and
certainly did not issue a threat. For Williams to tell Thomp-
son, who was being assigned to supervise the job, that there
was a union organizing campaign going on certainly would
not violate the Act. Based on the evidence presented, I can-
not find that the demotion of Guinn violated the Act in any
way.
2. Respondent violated Section 8(a)(1) of the Act by
discriminatorily increasing enforcement of its employee
rules and by creating new rules in response to the
organizing campaign (complaint allegations 1(c)(i), (ii),
(d)–The TRW jobsite meeting)
Respondent, at least since 1990, has maintained written
rules governing employee conduct, including rules setting
time limits on employee breaks and lunch periods, call-in
time requirements for planned or emergency absences from
work, and a progressive disciplinary system.11 Though Re-
spondent’s witnesses assert that a copy of these rules was
given to all new employees, only one or two employee wit-
nesses could remember receiving one. Even though they
might not have received a copy of the rules, however, the
employees testifying in this case all knew the rules regarding
breaks, lunch periods, and call-in times. I find from the evi-
dence that Respondent had these rules in place and that in
some fashion made them known to employees before any
union organizing activity took place.
On the other hand, the evidence makes clear that these
rules were not strictly enforced prior to the organizing cam-
paign. The evidence reflects that they were generally adhered
to, but that individual foremen allowed some flexibility, for
example, allowing more time for breaks. For at least the
electrical employees and certainly for the known union sup-
porters, this changed following the January 4 letter naming
the organizing committee.
The primary evidence on this point relates to a meeting
held January 6, 1993, at Respondent’s TRW jobsite. The
TRW job was being run by Lanis Smith.12 He supervised up
to 10 electricians on that job. There were also Dilling me-
chanical employees on this job including pipefitters, car-
penters, and painters. Shortly after the January 4, 1993 letter
was sent and the union supporters began wearing union in-
signia to work, there was a meeting of electricians called on
the TRW job by Fred Williams and Glen Click.
According to Smith, the employees were told about safety
rules and regulations, and then about other rules. He testified
that management said that they had two 10-minute breaks,
and that going to a break facility was part of the 10 min-
utes.13 They were also told that if they abused the rules, they
would get a verbal warning, a written warning, suspension,
and then termination. Additionally, they were told that they
were expected to be at work every day, and that if they were
not coming to work, they must call in by a certain time to
notify the office of the absence. The employees were also
warned about talking about union organizing on the job.
According to Serna, Williams said the employees would
all be getting copies of the company policy, but that he
wanted them to be aware of it at that time. He covered ab-
senteeism, late calls-in, breaks and lunch periods, conduct on
the job, and what was expected from a safety standpoint. He
said breaks would be exactly 10 minutes and would be taken
in the employee’s immediate work area. According to Serna,
this was a new practice as she had been taking breaks with
TRW employees in their breakroom. The employees were
told that management would follow disciplinary policy and
the employees were to watch their step. The meeting was
only held with electrical employees, though mechanical em-
ployees were working on the TRW job.14
According to Guinn, Williams told the assembled employ-
ees that from that moment on, the Company would enforce
its rules by the book; i.e., breaks would be taken in place,
rather than at the gang box, the time limits on breaks and
lunches would be adhered to, there would be no talk among
employees about the union except on employees’ own time,
and call-ins would be monitored. It should be noted that the
prohibition about talking related only to the topic of unions,
no other topic was off limits. He added that reprimands
would be by the book and that employees would be fired if
they did not follow the rules outlined. According to Guinn,
this was a departure from past practice. Before this meeting,
the electricians on the TRW job had taken their breaks at the
gang box.
Also attending this meeting were union supporters Robert
Bishop and Albert Cadwallader. Their testimony was similar
to that of Guinn, Smith, and Serna regarding the meeting. All
of the witnesses considered that the requirement to take
breaks in place to be a new rule, the restriction against talk-
ing about the union to be a new rule, and the strict enforce-
ment of the rules to be a new practice. Before this meeting,
1145DILLING MECHANICAL CONTRACTORS
15 Capitol EMI Music, Inc., 311 NLRB 997 (1993); Emergency
One Inc., 306 NLRB 800 (1992); Cooper Tire & Rubber v. NLRB,
957 F.2d 1245 (5th Cir. 1992), cert. denied 113 S.Ct. 492 (1992).
16 Best Plumbing Supply, 310 NLRB 143, 144 (1993); American
Warehousing & Distribution Services, 311 NLRB 371 (1993).
17 The sole exception to this rule was an employee named Ed
Winegardner, who is named as a committee member in the January
4 letter. I cannot find serious mention of his name in this record.
there had been no restrictions on when employees could talk
or with respect to subject matter.
Given the timing of the meeting, shortly after the January
4 letter, the fact that only electrical employees were part of
the meeting, and the new restrictions about talking about the
Union, I find that Respondent’s actions in this regard were
discriminatorily motivated.15 I therefore find unlawful its
threat to strictly enforce its rules, and its institution of a rule
governing where breaks could be taken and its new prohibi-
tion against talking about the Union except at lunch and be-
fore and after work. Such rules were clearly aimed at inhibit-
ing interaction among employees and the organizing effort
and thus served to restrain and interfere with employees’
Section 7 rights.16
3. Respondent violated Section 8(a)(1) of the Act by
the interrogation of employee Gene Kaufman by Glen
Click at the Morton jobsite (complaint allegations
1(d) and (e))
Gene Kaufman was working at this Morton jobsite as an
electrician in early January 1993. He testified that he was
asked by Glen Click how the organizing drive was going and
what the Union was doing with respect to organizing. Kauf-
man told him that he was not allowed to talk about the
Union on the job, but would talk with him after work if he
wanted. By this time, the Respondent’s rule against talking
about the Union at work was in effect. About 2 weeks to a
month later, the two had a similar conversation. Kaufman
testified that Click never took him up on the offer to talk
after work and admitted that he asked Click to join the
Union. For his part, Click testified that Kaufman informed
him about the union campaign in November 1992 but did not
elaborate.
Interrogations of employees by supervisors regarding
union activity is to be viewed from the totality of the cir-
cumstances. Click should have known that Kaufman was a
union supporter from the fact that Kaufman was named as
member of the organizing committee in the January 4 letter;
however, he disclaimed any knowledge of that letter. Even
assuming that Click knew that Kaufman was an active and
open supporter of the Union, I still find the interrogations
unlawful. Kaufman was not shown to have initiated a con-
versation where the topic of the Union came up. He was not
shown to be particularly close to Click and on the other
hand, from his response to the interrogation appeared some-
what leery of Click’s intentions. Respondent had just insti-
tuted a new rule prohibiting talking about the Union at work.
Kaufman knew the rule and deferred answering any ques-
tions about the Union until after working hours. Moreover,
given the negative response management had taken with re-
spect to the organizing effort after learning of it, the interro-
gation becomes coercive in my opinion. There is also no le-
gitimate reason shown for asking about the status of the or-
ganizing effort. As noted earlier, Dick Dilling had responded
to the January 4 letter with one of his own expressing no in-
tention of violating his employees’ rights and their desire to
unionize was their business alone. Therefore I find this inter-
rogation to be in violation of Section 8(a)(1) of the Act.
D. Respondent Violated Section 8(a)(1) and (3) of the
Act by its Actions Taken Against Employees at
the Essex Jobsite
1. The assigning of union supporters to the Essex
jobsite and the placement of Roger Seely to harass
them violated the Act
As will be shown in detail hereinafter, Respondent appar-
ently decided to first isolate and then eliminate the electrical
workers’ union supporters. It did so by placing and transfer-
ring all known such supporters to the Essex Wire jobsite in
Franklin, IN, after the January 4, 1993 letter.17 It also placed
on this job as ‘‘expeditor,’’ a person having supervisory au-
thority whose duties included enforcement of company rules
and insuring the workers performed their duties in a manner
satisfactory to management. Strangely, this person had no ex-
perience with electrical work and was wholly unable to
gauge the adequacy of the worker’s performance except by
recording the quantity of work they performed daily. He was
shown to have harassed the workers on the one hand, and
on the other was unable to aid them with their work because
of his lack of experience. On this job, three employees quit
after the expeditor’s arrival, at least one of whom was clearly
a constructive discharge. It laid off four workers, contrary to
past practice. There is sufficient evidence of economic moti-
vation however to overcome a finding that such layoff was
motivated by Respondent’s clear animus. When the few re-
maining employees on the job went on strike to protest the
unfair labor practices committed on the job, the Respondent
considered them to have quit their jobs, and refused to rein-
state them to their jobs when they made an unconditional
offer to return to work.
The numerous alleged violations of the Act on this jobsite
will be discussed below.
Union supporter Joel Lafleur worked at several jobs as a
journeyman when he was asked to be foreman on the Essex
job. He had never been a foreman before. He was told that
only journeyman electricians would be hired for the job, so
it would be easy to assign work. Lafleur was under the im-
pression that Dilling had a lot of projects underway and all
of its regular employees were busy. He understood that only
new employees would be hired for the Essex job. There
would be a lot of paperwork involved on the project and he
would have to be in the jobsite office much of the time, so
it was important to have experienced electricians working
who would not need much supervision.
The job commenced in November 1992 with Lafleur in
charge of two journeyman electricians, Donny Thompson and
Paul Stevens. After a few weeks, Williams told him he was
taking them off the job to assign them to other work. Re-
spondent then hired and assigned to the Essex job three jour-
neyman electricians, J. E. and John Culpepper and David
Hicks. They arrived in December 1992. Lafleur considered
them competent journeymen and had no problem with their
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Informational picketing took place at the jobsite during some
part of the winter and early spring of 1993. Donna Serna, who main-
tained a diary of events that transpired during her employment with
Respondent, put the date of this picketing as the first 2 weeks of
March 1993. Other witnesses placed it much earlier. I do not believe
that the beginning of the picketing predated Seely’s arrival, thus the
reference to ‘‘the pickets’’ may not be accurate. On the other hand,
the truthfulness of Lafleur’s testimony is borne out by other undis-
puted testimony and I credit it. Williams did not testify and thus
Lafleur’s testimony with regard to statements by Williams is not ef-
fectively denied.
19 Roger Seely served in the Navy for 28 years achieving the rank
of master chief, E-9, master diver. He is 6 feet 1 inch tall and
weighs about 240 pounds. After retiring from the Navy, he worked
for 3 months for a company managing laborers. After that, he
worked for an unspecified amount of time for the U.S.D.A., in an
unspecified capacity. Prior to his assignment to the Essex jobsite, he
had worked pouring concrete and running pipe for the mechanical
side of Respondent’s business. Dilling considered him a semiskilled
laborer.
20 This violation of the Act is alleged in complaint par. 2(a).
21 The complaint, in par. 2(d), alleges the establishment of the
quota system to be in violation of Sec. 8(a)(1) and (3) of the Act
as it imposes more onerous and rigorous conditions of employment
on the affected employees. I agree. The quota system was necessary,
if at all, only to lend some legitimacy to the presence of Seely. As
noted, because of his lack of electrical experience, he was unable to
tell by looking, as could Lafleur, whether work was progressing
work. Williams visited the site about once a week and made
favorable comments about their work.
About a day after the January 4 organizing committee let-
ter was received by Dilling naming among others, Hicks and
the Culpeppers, Click came to the job and asked Lafleur if
the unions had been bothering him. Lafleur said no and Click
asked if he were sure. Click said the men working for him
were trying to organize a union. Thereafter, in early Feb-
ruary, Lafleur was told by Williams that he was sending
Roger Seely to the jobsite because he thought the employees
on the job were taking advantage of him. He added that
Lafleur’s management style was not going to work well in
‘‘this situation.’’ According to Lafleur, Williams said that
‘‘Usually we could handle this problem with the stroke of a
pen. But because of the situation we can’t do that. It’s going
to take more drastic measures, more than your nature will
allow you to do. I am going to use Roger Seely to take care
of the pickets.’’18
Williams told Lafleur to tell the men that Seely was an
expeditor and that he would be there to enforce the rules.
Williams added that his job was as enforcer, but they would
use the title expeditor on the job. Lafleur also testified that
because not all the employees sent to the job were experi-
enced journeymen, the job required more supervision than he
could give, as he was required to be in the office trailer
about 60 or 70 percent of the time. Dilling contends that
Seely was assigned to the job to help Lafleur improve pro-
duction by being able to spend more time on the necessary
paperwork. That just does not ring true. Lafleur contends that
Seely was sent down to the job on the pretense of helping
him in this regard. Lafleur testified that because Seely had
no electrical experience, he still had to deal with the employ-
ees on a regular basis to answer their technical questions
about their job assignments. Lafleur pointed out that it would
have been more help to him to have assigned an experienced
journeyman to assist in running the job. Even Respondent’s
electrical field superintendent, Glen Click, testified that he
would not use anyone without electrical experience to help
run a job.19
Lafleur also testified that he was told by Williams that he
wanted him to issue a disciplinary warning to the Culpeppers
and Hicks for organizing on company time. It was Lafleur’s
understanding that Williams had learned of the alleged orga-
nizing from another contractor on the jobsite. Following in-
structions, Lafleur gave them a verbal warning on or about
January 11, 1993. The three employees denied doing any or-
ganizing among other employees on the job. As Lafleur was
also a union supporter, there would have been no reason for
them to lie about their activities. I credit their denial of such
activity among the employees of another contractor. I also
find this warning to violate Section 8(a)(1) and (3) of the Act
because Respondent issued the warning without any inves-
tigation of the truthfulness of the alleged organizing and be-
cause Respondent did not have in place a lawful no-solicita-
tion rule. I have already found that Respondent’s rule against
talking about the Union on company time to be unlawful and
thus any discipline imposed for violating the rule would like-
wise be unlawful.20
After the letter of January 4, Respondent began transfer-
ring employees named in the letter to the Essex job. This
was contrary to the procedure under which the job was to
have been run, with all new employees. The first to arrive
were Serna and Guinn, followed by Bill Bishop and Lanis
Smith. The process continued until virtually all of the union
organizing committee was on the job, though other jobs on
which they had been working continued and other new jobs
commenced. At the time these employees were sent to the
Essex job, Dilling also had electrical work going at a gener-
ating plant at Logansport, Indiana, at a school near Logans-
port, and other smaller jobs. If alleged in the complaint, I
would find that the act of isolating all of the electrical work-
er union supporters on the one jobsite is in violation of the
Act because it severely interfered with and restrained their
ability to organize. I would also find it a violation as it was
clearly Respondent’s intent to stymie their union efforts by
so isolating them and, as will be shown below, to get rid of
them. As it was not alleged to be a separate violation in the
complaint and the argument could be made that the matter
was not fully litigated however, I will decline to make such
a finding. I do however find that the purpose of sending the
union supporters to the Essex job was to isolate and to get
rid of them.
When Seely arrived on the job, he introduced himself to
Lafleur, who in turn introduced him to the men. Shortly after
this episode, Williams came to the job and told Lafleur that
he wanted to have a meeting with the employees and intro-
duce a quota system, a distinct change from Respondent’s
past practice. The quota system was asserted as necessary so
that Seely, who was not an electrician and could not gauge
productivity from experience, could measure productivity. At
this point in the job, they were not behind schedule, in
Lafleur’s opinion. Lafleur considered some of the quotas to
be reasonable, but believed the quota established for the run-
ning of conduit to be more than anyone could do because all
the pipe on the job had to be bent. He related this to Wil-
liams who told him that he did not want the quotas to be
too low, he wanted them to be something to aim for.21
1147DILLING MECHANICAL CONTRACTORS
properly. Having the system also gave him another tool for harassing
the workers as he could threaten them when they failed to meet a
daily quota. I find it significant that Respondent did not need the
system even with Seely on the job. The job’s actual progress was
still monitored by Lafleur based on progress made under his work
plans and assignments. He did not use the reports prepared by Seely
in his progress assessment. I believe the only true purpose of the
quotas was to create another rule that Seely could enforce.
Williams met with the electricians and began by asking
who considered himself to be a journeyman, and only J. E.
Culpepper raised his hand. John Culpepper had already quit
and Hicks was not there that day. Williams told Culpepper
that he had a quota for a journeyman and proceeded to out-
line that quota for him. He then introduced Seely.
After Seely’s arrival on the job, Lafleur was supposed to
plan the work and give Seely the electricians job assignments
for the day, with Seely giving the assignments to the em-
ployees. This plan did not work out however, because the
employees often had a technical question about their assign-
ment which Seely was unable to answer. Seely did take over
the job of enforcing company rules and administering dis-
cipline. Seely was given a two-way radio. In Lafleur’s pres-
ence, Williams once called Seely by radio, saying, ‘‘Come
in, bird dog.’’
Seely regularly faxed to Dick Dilling at the main office re-
ports on the employees’ performance with respect to the
quotas. On one of these dated March 19, 1993, he wrote
‘‘Send me some more disgruntled union pukes, it’s getting
boring.’’
As noted, beginning in January 1993, and continuing
thereafter Respondent did send the union supporters to the
jobsite. The details of their transfer to the job and their expe-
riences with Seely once they arrived are detailed below.
Albert Cadwallader testified that there was a meeting on
the Essex job when Seely came in which Williams explained
to the employees then working there that Seely would keep
company policies and safety policies. He testified that there-
after Seely would watch the employees and record their daily
work. According to Cadwallader, Seely would watch their
work over their shoulders and time the employees’ breaks.
According to Robert Guinn, Seely monitored all the elec-
tricians’ work, going from area to area, and making com-
ments with respect to the amount of work they were doing,
that they were not making quota, or other derogatory com-
ments. Guinn had never worked on one of Respondent’s jobs
before where there was a person used like Seely. He noted
on cross-examination that on occasion Respondent had used
certain employees to check on jobs and they were superior
to the foremen on the jobs. They did not stay on a job and
either monitor or supervise it however. These persons were
also experienced electricians as opposed to someone like
Seely. Guinn testified that Seely said to him that Guinn’s
union brother was fat and lazy, referring to another union
supporter. According to Guinn, Seely strictly monitored
breaks and the taking of breaks in place.
Guinn noted that on the Essex job there were quotas and
Seely checked daily to see that quotas were met. He testified
that Seely caught him taking an unauthorized smoke break
on a couple of occasions and told him to return to work, but
did not reprimand him on these occasions. Guinn testified
that he complained to Fred Williams about Seely and was
told by Williams that he had no control over Seely and that
Seely was accountable only to Dilling.
Lanis Smith was transferred to the Essex job in March
1993. He had transferred from the TRW job to one in Roch-
ester, Indiana, which he ran for about 2 weeks. He then went
back to the TRW job, then went to a job in Logansport, then
to Essex. According to Smith, the Logansport job was not
winding down when he was transferred to Essex. When
Smith went to the Essex job, Williams told him to report to
Roger Seely. According to Smith, Seely stood watch over the
employees, checked the time employees took to go to the
bathroom, the time employees took for breaks, and took
daily production statistics for the quota. Smith had not had
any quotas on other jobs for Respondent, nor had employees
previously had to record their daily production.
Smith wore a union sticker on his personal hardhat when
he began work on the Essex project. He had worn it pre-
viously on all jobs after the January 4 letter naming him as
a member of the organizing committee. The first morning of
work at Essex, Seely asked him if he had a Dilling issued
hardhat, and Smith said no, he had his personal hat. Seely
directed him to a pile of what Smith said were dirty Dilling
hard hats and told him to wear one of them. Smith said he
was not going to wear someone else’s hat and he wanted a
new one. Seely told him that his personal hard hat was not
a Dilling-approved hardhat. The only difference between the
Dilling hat and Smith’s hat was its color and the union stick-
er. Employee Bill Bishop had a similar experience with
Seely on his arrival at the jobsite. Lafleur testified that
Dilling preferred the employees wear a Dilling-issued hard-
hat to be uniform. He also testified, however, that employees
had been allowed to wear their own hats and that some em-
ployees decorated them with personal stickers, without prob-
lem.
Seely gave Smith a written warning in March 1993, very
soon after Smith transferred to the Essex job. According to
Smith, there was about 10 minutes left in the workday and
Smith had cleaned up his area and was preparing to leave
work. Seely came to him and told him to get a broom and
start sweeping in another area. Smith said there were no
brooms available and he and Seely got into a heated argu-
ment. Smith told Seely there were no brooms available, that
he had already cleaned his own area, and that he did not feel
like he was a janitor. Seely told him to find a broom and
sweep. Smith was then told to report to the office trailer on
the job, where he was given a written warning for ‘‘Disobe-
dient conduct by refusing to conduct clean up during work-
ing hours as directed by appointed supervisor; to wit, when
told by R. Seely to help clean up beneath high bay area, em-
ployee Smith stated, ‘I didn’t make that mess. I ain’t fucking
cleaning it,’ or words to that effect.’’ Signed R. Seely, expe-
diter.
Smith denies using profanity. Bishop overheard the argu-
ment and corroborates Smith’s testimony both with respect
to not using profanity as well as there were no brooms avail-
able. This warning is alleged in complaint paragraph 2(e) to
constitute a violation of the Act. Under circumstances where
a supervisor was not shown to be harassing employees, and
looking for rules violations by employees, I would be in-
clined to not find any violation in a warning given in similar
circumstances. Here however, the warning itself was given
though Smith could not do what he was asked because no
broom was available, and the warning untruthfully alleges
profanity was used. Given Seely’s true mission at the Essex
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 This violation of the Act is alleged in complaint par. 2(e).
jobsite, the untruthfulness of the warning, Seely’s actions
with respect to Smith’s union insignia, and the fact that
Seely branded Smith a ‘‘troublemaker’’ to Lafleur on
Smith’s first day at Essex, I find that the warning was given
to further Respondent’s unlawful intent to harass the union
supporters and for no legitimate reason. Accordingly, I find
that the giving of the warning constitutes a violation of Sec-
tion 8(a)(1) and (3) of the Act.22
Bill Bishop was hired by Respondent at the same time as
Smith and was hired to work as a journeyman electrician and
run electrical jobs. Bishop is a very experienced electrician
and has been a supervisor at other electrical contractors. Like
Smith, he contacted Butler shortly after being hired and
signed an authorization card and his name appeared on the
list of organizing committee members sent to Respondent on
January 4, 1993. He was not given any written rules at the
time of his hiring. His employment ended when he was laid
off at the Essex job in April 1993. His first assignment with
Respondent was running a project at a hospital in Logans-
port, Indiana. He began this project, but it was not yet at a
stage to need a great deal of electrical work. He was next
assigned to another hospital job in Logansport and worked
there 3 or 4 days. He was then transferred to the White Rog-
ers project in Logansport. He ran the installation of lighting
at this project and was then transferred in December 1992 to
the Essex project. At the time he arrived, there were three
other electricians on the job supervised by Joel Lafleur. After
a few days, he was transferred to the TRW job, and when
that job shut down for 2 weeks, was transferred along with
Smith and Serna to a job in Rochester, Indiana, with Smith
running the job. They then returned to the TRW job and then
he was transferred to a power generating job in Logansport
as a journeyman. He was then transferred back to the Essex
job and was laid off on April 9 or 10, 1993.
When Bishop was transferred to the Essex job for the sec-
ond time, Seely was there in what Bishop called a ‘‘bird
dog’’ position. He compared him to a first sergeant in the
military. Bishop, as were the other electricians, was required
to turn in in writing the amount of work he did each day.
Bishop had never before worked on a job where quotas were
required and where production was recorded on a daily basis.
Bishop noted that Seely monitored each break and the lunch
period, timing the employees’ breaks. He observed Seely fol-
lowing Serna to the restroom and telling her she went to the
restroom too often.
Electrician Mike Boatman Sr. was employed by Respond-
ent from June 1986 until he went on strike on April 12,
1993. He was used primarily as a foreman by Respondent.
He was contacted by Butler in August 1992 and joined the
Union and began aiding in the organization effort. His name
was on the list of organizing committee members sent to Re-
spondent in January 1993. In mid-January 1993, he was
working as foreman on a job in Lafayette, Indiana. He was
then transferred to the Essex job. After 2 or 3 days, he was
transferred to the TRW job, then after 2 days there was
transferred to the Logansport power generating job. In mid-
March he was again transferred to the Essex job.
Boatman was told by Williams that Seely was the foreman
on the job, with responsibilities to oversee the job and make
sure it kept going. In all his years with Dilling, he had never
worked on a job with two foremen as was the case at Essex.
He described Seely’s activity as ‘‘He’d just stand around and
watch us, make sure we didn’t talk among ourselves, make
sure we only took exactly a ten minute break or a 30 minute
lunch . . . was right there first thing in the morning to make
sure we got started on time, and didn’t leave the job too
early.’’ Seely did not talk with Boatman, but Boatman over-
heard some conversations he had with other employees. He
heard him tell Gene Kaufman that if he did not take the
timesheets into Dilling’s office, that nobody else would get
their travel pay. This was not one of Kaufman’s duties and
required him to drive to Logansport. It was one of Seely’s
duties as foreman.
Seely gave Boatman and his son a writeup for leaving 2
hours early one day to go on a vacation. Boatman had in-
formed Seely of their intentions in this regard, but he said
if they did not work the full day, he would write them up
and did. According to Boatman, he had already cleared the
trip with Williams and Click. Williams did not testify and
Click did not deny this testimony. Boatman testified that this
represented a change in past practice, when employees were
allowed to leave early with advance notice.
He was also told by Seely that he would have to remove
an IBEW sticker from his hardhat or he would have to wear
a Dilling-issued hardhat, without stickers. Boatman had worn
his own hat off and on during his entire 7-year employment
with Respondent without comment from management. It was
only when he affixed a union sticker did his hat become an
issue. He noted that Bishop and Smith were told the same
thing and the three were issued new hats. Boatman testified
that they were allowed to wear union T-shirts.
Jeff Guinn was transferred to the Essex job in approxi-
mately January 1993. He engaged in the informational pick-
eting at the job until his layoff. He testified Seely instructed
him to be quiet and not talk on the job, a departure in com-
pany practice from Guinn’s experience on other jobs for Re-
spondent. Guinn’s layoff was also a departure from his past
experience as he had always been transferred to another job
when work slowed on the one he was working. Although he
was laid off, Guinn joined the picketers when the strike com-
menced.
Eugene Kaufman worked for Respondent from July 1990
until April 12, 1993, when he went on strike at the Essex
job. He began his employment as an electrician apprentice.
He worked both on the mechanical and electrical sides of the
business. He was transferred to the Essex site from the Mor-
ton jobsite in March 1993. He engaged in the strike which
began on April 12. He testified that from his perspective,
Seely’s job was to keep the employees busy and would walk
around making sure the employees had plenty to do. On two
occasions Seely instructed Kaufman to take some timesheet
paperwork to the office in Logansport. As this was not part
of his regular duties and as it was required to be done on
his own time, Kaufman protested. Seely told him in response
that the employees would not get paid unless he took the
timesheets to Logansport. Kaufman testified that on other
jobs, this was a duty of the foreman.
Donna Serna worked for Respondent from November 1992
until she went on strike in April 1993. She was a journey-
man electrician. At the time she was hired, she was not given
any written rules. She first worked on the TRW job under
the supervision of Lanis Smith. While working on this job,
1149DILLING MECHANICAL CONTRACTORS
23 Bishop at the time was recovering from chemotherapy treat-
ments.
she was complimented on her work by Click. At about
Christmas, she was transferred to a job in Rochester, Indiana.
and then came back to TRW on January 4. On January 18,
she was transferred to the Essex job. On January 21, she
went back to TRW and, on February 9, transferred back to
Essex.
On her first assignment at the Essex site, Seely was not
there and breaks were like they had been at TRW, usually
10 minutes but occasionally exceeding that time limit. On the
second assignment, she was told by Williams that Seely was
the expediter and was there to make the employees more ef-
ficient. It was explained that Lafleur was there as technical
support from then on and Seely would be running the job.
The employees were to address him as mister and show him
respect. Serna testified that the employees called him the
‘‘enforcer’’ or ‘‘bird dog.’’ By this she testified ‘‘that’s what
he was doing. He was trailing us. He was pointing us, check-
ing out work, and that was his purpose in being there, to bird
dog us. He didn’t have the technical knowledge to do a fore-
man’s job.’’ She described his duties thusly, ‘‘he walked
around a lot and watched us. If we need something, it was
his job to run and get it at the hardware store or whatever.
We tried to keep him running, but he was there to—just
watch us, basically, in a supervisory capacity. Sometimes
he’d sit on the gang box for 2 or 3 hours at a time. He [sic]
favorite place to go, he told me, was up on the third floor
mezzanine where he could see the whole plant and people
couldn’t see him.’’ When employees took a break, he came
to the gang box and would monitor the breaks. He attempted
to write up Serna on one occasion when she went to the
bathroom. On this occasion, it was cold and she went to her
car to get extra clothing. She stopped at the restroom on the
way back to put on the clothes and when she walked to the
gang box, she was confronted by Seely who said she was 4
minutes late coming back from break. She explained what
she had done and he said he was going to write her up over
it. Serna testified that Williams later told him not to do it.
Seely, though not talking to many of the employees on the
job, did talk to Serna. He told her that Hicks and the
Culpeppers were ‘‘a waste of breath’’ and ‘‘lazy, no good
sons-of-bitches.’’ He said their work was inadequate. Ac-
cording to Serna,
He told me one day that he didn’t even know how to
bend pipe and he could put up as much pipe as J. E.
did. He told me they didn’t get enough done. Made a
comment one day about the quality of union work,
knowing that they were union craftsmen. He’d get on
their case about going to the bathroom or, if they were
standing—Look, our job consists a lot of times of step-
ping back and looking at what you’ve got to do. It is
work. If you’re laying out a run of pipe, you’re looking
at a situation where you’re going to have to—you want
to know ahead of time what you’re going to do and
have a plan of action. He didn’t expect any of that in-
spection type time at all. He wanted them busy. One
day we were getting ready to leave and it was about
2 minutes before we were supposed to walk out of the
plant and we were all standing at the gang box and he
got on J. E.’s case, told him to pick up a broom and
sweep.
Serna testified that Seely told her he was glad that J. E. Cul-
pepper quit, and commented that he (Seely) was doing a
good job. Serna also testified that Seely told her that he
wanted to get rid of J. E. Culpepper and Hicks.
Serna testified that Seely also commented about the Boat-
mans. Seely said they had a bad attitude. He attacked the
work and mental state of Jeff Guinn. He said he expected to
‘‘get into it’’ with Lanis Smith. He said Albert Cadwallader
did not take his work seriously enough.
Serna asserts that Seely tormented the employees. He fol-
lowed her to the bathroom several times. She objected to
being inspected while working by someone who knows noth-
ing about the job. She objected to his aggressive manner. She
objected to him making derogatory comments about cowork-
ers. She also seriously objected to sexual nature of Seely’s
harassment of her personally. She testified no one else on the
job harassed her. Asked to give an example of such harass-
ment, she cited one occasion when all the electricians were
gathered at the gang box before work was to start. Seely
commented that ‘‘He would love to eat my pussy, but that
would put Bob on his forehead and he couldn’t take both of
us at one time.’’ J. E. Culpepper recalled a similar sexual
comment toward Serna at a different time, in front of the
other employees. Serna recalled another instance where he
asked her what she did the night before, who she was with.
He also asked her if she knew what she was doing in relation
to her work.
Seely also talked about the employees with Lafleur. He
commented to Lafleur that he thought Serna and Guinn did
a good job, but that when they finished an assignment, they
would just sit and do nothing until given another assignment.
He commented that ‘‘that must be some of that union
bullshit.’’
Seely commented about Bishop, saying ‘‘I don’t care if
he’s had a heart attack or not . . . if he doesn’t get the
quota, you know I’m going to nail him.’’23 Seely told La-
fleur that he considered Smith and Boatman Sr. to be trou-
blemakers.
At one point, Seely asked Lafleur if he needed more men
and Lafleur said he could use about four more. Seely said,
‘‘Well, we’ll be getting some, some men from the precipi-
tator job. But he said they wouldn’t be ace hands, they
would be trouble makers. He said, ‘Some of your union
brothers.’’’ Seely added that the Essex job was to be a
‘‘weeding out process’’ for these employees.
I find that, as alleged in complaint paragraph 2(c), Re-
spondent violated Section 8(a)(1) and (3) of the Act by as-
signing Seely to the Essex jobsite with the clear purpose of
surveilling the activities of the employees, harassing the em-
ployees, abusing the employees, and discouraging the em-
ployees from further employment with Respondent, because
the employees supported the Union and for no other legiti-
mate reason. He was shown to have given at least one un-
lawful warning to an employee, and I believe the evidence
would support a finding that he gave another such unlawful
warning to Mike Boatman Sr. and Jr. He closely observed
the work of the employees even though his lack of electrical
experience precluded him from appreciating what he was
watching or being able to offer assistance. He denigrated em-
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees in conversations with other employees and clearly
engaged in verbal sexual abuse of Serna. He rigidly enforced
company rules contrary to past company practice. In his con-
versations with Lafleur, which are undenied in this record,
and in his report to Dick Dilling (G.C. Exh. 13), he clearly
showed that his purpose on the job was harass and ‘‘weed
out’’ the union supporters. Such a purpose is unlawful under
the Act.
2. Respondent violated the Act by photographing the
informational picketers (complaint par. 1(h))
For an undefined period of time in February and March
1993, before the strike on the Essex job, the union supporters
engaged in informational picketing at the front gate of the
Essex plant. This picketing would take place before and after
work and at lunch. The signs stated: ‘‘Dilling Mechanical
Electrical doesn’t provide health benefits for his employees.’’
The employees engaged in such picketing about 100 feet
from the jobsite on public property. The picketing was not
massed, and there was no allegation that there was picket
line misconduct of any sort. Seely and another management
employee, Tad Wilkinson, took pictures of the picketers at
Dick Dilling’s instruction, allegedly to learn what the picket
signs said. The number of times they took pictures is in dis-
pute. It varies from once to regularly in the testimony of the
witnesses in this case. It is admitted that Wilkinson and
Seely took pictures on the picket line on one occasion each.
I believe the confusion in the minds of the witnesses is un-
derstandable considering that Seely also took pictures of
picketers when a strike commenced in April. Over a period
of time, the distinction between incidences of photographing
on one occasion versus another can easily become blurred.
I believe the best evidence indicates that photographs were
taken more than once, but certainly not regularly. There was
no verbal harassment of the pickets by Seely or Wilkinson
during the photographing of the pickets. In similar situations,
the Board has found such taking of pictures of picketers to
be in violation of Section 8(a)(1) of the Act. In Waco, Inc.,
273 NLRB 746 (1984), the employer had on one occasion
taken an unspecified number of photos of picketers asserting
it wanted ‘‘to find out what was on the signs and take pic-
tures of them.’’ The Board found such activity unlawful, stat-
ing at 747:
It has long been held that ‘‘[i]n the absence of prop-
er justification, the photographing of pickets violates
the Act because it has a tendency to intimidate.’’
Photographing lawful, peaceful picketing tends to im-
plant fear of future reprisals.
In the particular circumstances of this case, we are
convinced that the Respondent’s conduct reasonably
tended to restrain the employees from engaging in what
was undisputedly protected concerted activity. The Re-
spondent had no reasonable basis for anticipating picket
line misconduct, since, on the day of the lunchroom
protester’s discharge and at all times during this picket-
ing, the employees were orderly and peaceful. [Cita-
tions omitted.]
See also F. W. Woolworth Co., 310 NLRB 1197 (1993).
Based on the Board’s holdings in the cases cited, I find that
Respondent violated the Act by photographing the informa-
tional picketers. It asserts as did the employer in Waco, Inc.
that it wanted to know what was on the signs. Dilling as-
serted that he believed the message may have in some man-
ner been unlawful. He however could have learned the signs’
message in other ways and if, after consulting with his attor-
ney, decided to file unfair labor practice charges, then pro-
ceeded to document the alleged unlawful message. No such
action was taken.
It is not disputed that Respondent took photos of the pick-
ets who engaged in a strike commencing April 12, 1993. For
the same reasons I found taking photos of the informational
pickets to be unlawful, I find that taking pictures of the strik-
ers was also unlawful. Just as with the information pickets,
there was no hint of any picket line misconduct during the
strike.
3. Did Respondent constructively discharge its
employees, David Hicks, J. E. Culpepper, and John
Culpepper? (complaint par. 2(c))
Hicks and the Culpepper brothers, three of the original
employees on the Essex jobsite quit their employment during
February and March 1993, allegedly because of adverse
treatment afforded them by Respondent because of their
union support and activities. To demonstrate that an em-
ployee has been constructively discharged, the General Coun-
sel must show that ‘‘burdens imposed on the employee must
cause, and be intended to cause a change in working condi-
tions so difficult . . . as to force him to resign and those
burdens were imposed because of the employee’s union ac-
tivities.’’ Crystal Princeton Refining Co., 222 NLRB 1068,
1069 (1976); Algreco Sportwear Co., 271 NLRB 499, 500
(1984). With this test in mind, the evidence relating to the
three employees who quit will be discussed. In each case, I
believe it is clear that the burden imposed on these employ-
ees was the same as on the other employees at Essex, that
is, Roger Seely. It is also true in my opinion that Respondent
wanted to get rid of the union supporters and Seely was
placed at the jobsite to further that end. Both Hicks and the
Culpeppers, as well as all other employees on the job, were
known union supporters. Thus, in the end, the question is
whether the actions of Seely with respect to Hicks and the
Culpeppers were so difficult and unpleasant so as to force
them to resign.
John Culpepper testified that the three responded to a
newspaper ad placed by Respondent at the urging of Butler.
Seely reported to the job on February 8, 1993, and John Cul-
pepper quit on the morning of February 9, 1993, and shortly
thereafter went to work at a job making more money than
he had at Respondent. In support of the contention that he
was constructively discharged, he noted that Seely watched
the employees. According to John Culpepper, Seely never
said anything to him. Culpepper said he noted to Lafleur that
Seely was distracting his work. Lafleur did not remember
this conversation. John Culpepper did not stay around long
enough to be subject to the daily production reports. He
never received a writeup from Seely. Rather incredibly, Cul-
pepper testified that he engaged in the informational picket-
ing and that Seely observed him doing so every day. As
noted, Seely was only at the site 1 day before Culpepper
quit.
Respondent demonstrated that Culpepper was written up
by Lafleur on February 2, 1993, for excessive telephone
1151DILLING MECHANICAL CONTRACTORS
usage. Lafleur was also a member of the Union and was in-
volved in the organizing campaign and was clearly not trying
to get rid of union supporters. I find that Culpepper quit his
employment with Dilling to take a better job and for no other
reason. Regardless of what Seely may have done with re-
spect to the other employees on the job, he did not have time
to do anything with respect to Culpepper and I did not find
Culpepper’s statements to the contrary to be believable. I
will dismiss the portion of the complaint alleging that John
Culpepper was constructively discharged and find to the con-
trary he voluntarily quit.
On the other hand, I do not question that Seely was
pleased by the resignation and would have encouraged John
Culpepper to quit if given the opportunity. In this regard, the
record reflects that after Culpepper left, Seely called Dick
Dilling and told him, ‘‘We are one Culpepper short of a full
load.’’
David Hicks was hired in December 1992 and continued
until he quit in February 1993. Hicks is an experienced jour-
neyman electrician and was a member of an IBEW local in
Charleston, South Carolina. He has traveled extensively and
has worked all over the country. He applied for work at
Dilling together with John Culpepper. They too are experi-
enced journeymen and have traveled extensively. Hicks and
Culpepper were hired by Williams for the Essex job. Accord-
ing to Hicks, Williams also said that if they worked out,
there was the possibility of further work. John Culpepper’s
brother, J. E. Culpepper, was hired for the Essex job shortly
thereafter. J. E. was hired by Click. J. E. had been a jour-
neyman since 1971. Click said he would be working at the
Essex jobsite. He contends that Click said there would be
more work after the Essex job ended.
The three electricians began work at the Essex site in No-
vember 1992, under the direction of Joel Lafleur. Hicks said
that Lafleur frequently commented that they were doing a
good job. After he began work, Williams and Click would
periodically come to the jobsite and inspect the work being
done. According to Hicks and the Culpeppers, they said the
employees were doing a good job.
On January 4, 1993, Hicks and the Culpeppers signed an
authorization card for the involved Local Union and their
names appeared on the list of union organizers sent to
Dilling the same date. According to Hicks, shortly thereafter,
Williams held a meeting with Lafleur, himself, and the
Culpeppers, telling them that from that time on company
rules would be strictly enforced. According to John Cul-
pepper, Williams also indicated that there would be no more
jobs after the Essex job, mentioning the letter to Dilling sent
January 4. On cross, John Culpepper amended his testimony
to say that Williams said, ‘‘All bets are off.’’ According to
John Culpepper, Lafleur told him at a later date that this
statement meant that there would be no employment past
Essex. According to J. E. Culpepper, Williams said that
things were fixing to change. The employees would have a
new set of rules and would have to meet quotas set accord-
ing to NECA guidelines. J. E. Culpepper contends that Wil-
liams gave the organizing campaign as the reason for the
changes.
About 2 weeks after the meeting with Williams, Seely
came to the job. He was introduced to Hicks and the
Culpeppers by Lafleur, who said he was an enforcer from the
Company to make sure their rules and regulations were car-
ried out. Seely then said enforcer was a little too harsh and
that he did not want to come off that harsh. Hicks said he
did not need an enforcer and he knew how to do his job.
Thereafter, Seely watched the work of the employees, ob-
serving Hicks from about 50 feet away. He also observed
and timed the breaks. He rarely spoke to Hicks, except on
one occasion to comment that Hicks’ production was not sat-
isfactory.
Hicks quit his employment with Dilling about 2 weeks
after Seely arrived. According to Hicks, he quit because he
was not used to someone looking over his shoulder at his
work and he just could not take it. He testified that he did
not like Seely and Seely did not like him. He quit without
telling anyone. He left on a Friday and did not go to work
on Monday. He said he mentioned to Lafleur that he did not
like Seely watching his work and was told that there was
nothing Lafleur could do about it.
I cannot find that Seely’s actions toward Hicks for a 2-
week period as specifically described in this record can be
said to be so difficult and unpleasant as to force him to quit.
Though for reasons set out above, I believe Seely’s actions
constitute an unfair labor practice, quitting in protest over
unfair labor practices does not amount to a constructive dis-
charge. Further, though Hicks is mentioned in the evidence
as a target of Seely’s displeasure, he does not appear to be
the prime target for Seely’s harassment and his working con-
ditions were thus better than several other employees on the
job. As was the case with John Culpepper, there is little spe-
cific evidence of any special harassment by Seely regarding
Hicks. Again, the evidence reflects that Seely wanted Hicks
to go and was pleased when he left. Yet, a clear intention
by Seely to force Hicks out is not sufficient in my opinion
to find a constructive discharge. The must be some specific
examples of harassment or abuse to back up Hick’s conten-
tion that he could not continue working under Seely. I be-
lieve this showing is even more necessary when, as here,
other employees endured the general harassment of Seely
without quitting. I would dismiss the constructive discharge
allegation relating to Hicks.
The situation with J. E. Culpepper is somewhat different.
He continued working at the Essex site until March 1993,
and appears from the evidence to be the employee Seely
most wanted to get rid of. Culpepper said that Seely would
occasionally be nice and then would be rude. Culpepper tes-
tified he asked why Seely was being so hard, and got the
reply, ‘‘All’s fair in love and war.’’ He testified that Seely
would come and sit about 5 feet away from him and watch
him work for hours. Culpepper testified that Seely occasion-
ally made derogatory remarks about him and Robert Guinn,
who were staying together in a motel near the jobsite, imply-
ing they had a homosexual relationship. Such remarks would
be made in front of other employees.
J. E. Culpepper said he was enjoying his work at Dilling
until Seely showed up. Thereafter however, he felt threatened
by Seely and some of his actions. He explained that on one
occasion that Seely wanted to physically harm him. He testi-
fied that it got to the point that he did not trust Seely, so
he did not go back to work. He did not inform anyone at
the job he was quitting. Seely later called him and asked
why he did not return to work. J. E. believes he told Seely
he quit. On several occasions, however, Culpepper told
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Though the evidence is conflicting, I do not think that Cul-
pepper was hired as a permanent employee by Respondent, and on
the contrary, believe he was hired only for the Essex job. Lafleur
testified that the purpose of hiring the three new employees was for
that job. No other employees testifying other than Hicks and the
Culpeppers indicated that they were told at the time of hiring that
they were being hired for a specific job. Had Culpepper not quit,
it is likely that he would have been laid off in early April, as he
did not have as great seniority as Bishop, at least.
25 At the hearing, Dick Dilling indicated that Jeff Guinn’s layoff
was prompted by lack of work and poor performance. In light of my
finding that the layoff was lawful, it is unnecessary to examine in
detail the assertions about Guinn’s performance. I agree, however,
with the General Counsel that the number of writeups Guinn re-
ceived on the job seem to be the result of Seely’s rigid enforcement
of all company rules rather than a change in Guinn’s work habits.
Lafleur that he was considering quitting because he could not
take Seely any more and did not want to endure it.
Lafleur testified that Seely had confrontations with Hicks
and J. E. Culpepper, but he was not aware of the details sur-
rounding the confrontations. He remembered one occasion
when Seely returned to the office angry and said he was
going to nail the two for nonproduction. He added that they
were going to the bathroom too often and were dragging
their feet. Lafleur also recalled that Seely told him once that
‘‘He had J. E. screwed so tight he [sic] about to blow up,’’
and added he thought Culpepper would quit. In the same
conversation Seely said, ‘‘He was breathing down his neck
and getting in his shit,’’ and that Culpepper didn’t like it. He
also remembered a phone conversation between Seely and
Williams wherein Seely told Williams that he thought J. E.
Culpepper and Hicks would quit before the end of the week.
From the evidence adduced, it appears to me that Seely
did specifically target Culpepper and was actively trying to
get him to quit. Having heard Culpepper testify, I believe
that he did quit because he could not take Seely’s harassment
any longer. I therefore find that J. E. Culpepper was con-
structively discharged by Respondent because of his union
support.24
4. Did Respondent unlawfully layoff employees at the
Essex jobsite? (complaint par. 2(f))
On April 8, 1993, Respondent laid off employees Lanny
Smith, Bill Bishop, Jeff Guinn, and Albert Cadwallader.
Under Wright Line, 251 NLRB 1083 (1980), in order to find
an action, such as the layoff here involved, to be unlawfully
motivated, the General Counsel has the burden of proving (1)
the discriminatees’ union or protected activity; (2) the em-
ployer’s knowledge of this activity; and (3) the employer’s
animus or hostility toward the discriminatees’ union activity.
Clearly the General Counsel has established all three of these
elements. Each of the employees laid off were union support-
ers, and their support was known by Respondent. The record
here is replete with evidence of Respondent’s animus toward
the Union. Thus, under Wright Line, the burden shifts to Re-
spondent to show it would have taken the same action even
in the absence of union activity.
The past practice of Respondent prior to the Essex layoff
was to transfer employees from a job that was ending to an-
other job. Each of the employees laid off had experienced
such transfers. Bishop and Smith had both supervised jobs
for Respondent without problem. Cadwallader and Guinn
were the stepson and son of Bishop and Robert Guinn re-
spectively, and though not very experienced in the electrical
field, had been used from job to job, and when work was
not available for them on a job, in the Respondent’s shop.
Robert Guinn testified that the usual practice at Respond-
ent regarding layoffs is that Respondent had a core group of
employees who would move to another job when a job was
finished. Extra employees would be hired on a job-by-job
basis and these extra employees were the only ones laid off.
Guinn identified as core employees those like himself who
were capable of supervising a job. None of the employees
laid off were called core employees by Guinn. The layoff
was by seniority, at least as far as the Essex employee com-
plement was concerned. When asked why he laid off the em-
ployees at the Essex site, Dick Dilling stated: ‘‘We were
wrapping up our work (on the Essex job), we didn’t have
anything for several weeks on the jobsite.’’
Respondent told these employees at the time of their layoff
that it was an economic reduction in force, and though no
detailed evidence was introduced at the hearing to substan-
tiate this assertion, it is supported by the General Counsel’s
Exhibit 23.25 This exhibit reflects jobs in progress on various
dates between April 1, and May 30, 1993. According to the
exhibit, Respondent had 15 jobs in progress on April 1, 11
jobs in progress on April 30, and only 8 jobs in progress on
May 30. It also reflects that at about the same time as the
instant layoff, seven other electrical employees were laid off.
None of these employees was shown to be a union supporter.
Additionally, other than employees subcontracted to finish
the Essex job, no other electrical employees were hired from
the date of the layoff to May 30. Based on this exhibit, I
believe that Respondent has satisfied its burden of proving
that the layoffs would have occurred even in the absence of
protected activity by the affected employees.
Through at least the end of May 1993, none of the 11 em-
ployees laid off in April had been recalled by Respondent.
The four involved employees have never been recalled and
there is no evidence concerning whether any of the other
seven laid-off employees have been recalled.
5. Was the strike which commenced on April 12, 1993, an
unfair labor practice strike? (complaint par. 3(a))
The employees remaining on the Essex job went on strike
on April 12, 1993. According to Guinn, the union supporters
on the Essex job met at the union hall the night before the
strike and complained of the treatment of them by Seely.
They decided to go on strike to protest what they considered
unfair labor practices committed by him. Layoffs had started
on the job and these employees believed that if they were
going to strike, it would have to be soon or the job would
be finished. Donna Serna testified that the employees went
on strike because morale was very low. She testified that
Seely was getting worse, and harassment was getting worse.
A few of the supporters had been laid off and the remaining
supporters felt that if they did not strike soon, there would
be no one left. Mike Boatman Sr. went on strike because of
Respondent’s use of Seely, who he characterized as an en-
forcer, and because of changes in the company’s policies.
Union Representative Ed Butler testified that the employ-
ees went on strike because of the conditions on the job with
Seely and the fact that they felt they had been sent to the
job like a death ship, and would go down with the job. Spe-
cifically the employees objected to the change in work rules,
1153DILLING MECHANICAL CONTRACTORS
26 The transcript states that Guinn was the person doing this. This
is obviously an error by the reporter. It would have been either Seely
or Click, both of whom were present when the strike started. Each
testified that Guinn told them that the employees were going on
strike. Seely testified that after the strike began, he returned to the
office and called Dilling. On cross, Lafleur indicated that it was
Click who made the call. Neither Dilling nor Seely denied the truth-
fulness of Lafleur’s testimony about the message from Dilling and
I accept it as fact.
the surveillance by Seely, and the harassment by Seely. The
employees also felt that the layoffs that had occurred the pre-
vious week were motivated by animus rather than by eco-
nomic reasons because the persons laid off were all members
of the organizing committee.
The strike began at noon on April 12, 1993. Guinn testi-
fied that he told Seely the employees were striking over un-
fair labor practices committed by him and the Company. The
signs used on strike stated: ‘‘Unfair labor practice strike
against Dilling Mechanical Electrical.’’ Seely returned to the
office and asked Lafleur if he knew anything about the
strike.26 Lafleur said he did not and Seely said he was going
to call the main office. He later reported to Lafleur that Dick
Dilling told him that as far as the Company was concerned,
the strikers had quit, and if they try to come back, they
would not be allowed on the jobsite. The following day, the
strikers were replaced by workers borrowed from another
contractor. Lafleur went on strike 2 days later and joined the
picket line.
I have heretofore found that Respondent violated the Act
by placing Seely on the Essex job to harass and get rid of
the employees on this job because of their union support. I
have also found that Respondent violated the Act by the ac-
tions taken by Seely in harassing and abusing the employees
because of their union support. I therefore find that a strike
called to protest these unfair labor practices is in fact an un-
fair labor practice strike and the strikers were unfair labor
practice strikers. Chesapeake Plywood, 294 NLRB 201
(1989); Northern Wire Corp., 291 NLRB 727 (1988).
6. Was Respondent’s response to an unconditional offer
to return to work sufficient to toll a backpay
obligation? (complaint pars. 3(c) and (d))
After about a week of picketing, the striking employees
met at the union hall and decided to offer to return to work.
The next day, on April 19, Guinn, Serna, and Kaufman drove
to the Essex jobsite, with the Boatmans following in another
vehicle. Guinn first encountered Seely, who Guinn asked to
summon Glen Click. Click had taken over supervision of the
job after Lafleur joined the strike. Click came out and Guinn
told him the employees were ready to return to work. Ac-
cording to Guinn, Click said that he had to get the job done,
and had replaced the strikers. Click advised Guinn if he had
any more questions, to contact Dick Dilling and set up an
interview. Gene Kaufman, who was present for the conversa-
tion, testified that Guinn asked Click if they were allowed
to return to work and Click said that they needed to talk to
Dick Dilling, because as far as the Company was concerned,
they had quit and they had replaced them. Donna Serna over-
heard the conversation and said that Guinn told Click that the
strikers were ready to go back to work pursuant to the fax
that had been sent, and Click said they had been replaced.
Click also said that when they went on strike, they had quit.
She testified that they were told to call Dick Dilling.
With respect to the conversation about returning to work,
Click testified Guinn said he was ready to go back to work.
According to Click, he said, ‘‘Bob, I had to bring more peo-
ple down there. You’ll have to call Dick Dilling for an as-
signment.’’ Seely testified Click told the returning strikers to
call Dilling. According to Seely, he did not say why, saying
‘‘I can’t answer that question, you need to take it up with
him.’’
I credit the version of the conversation given by Serna and
Kaufman for two reasons. One, Serna demonstrated that she
had an accurate memory at the hearing, and her version and
that given by Kaufman comport with the other facts of
record. As noted above, Lafleur credibly testified that Dick
Dilling considered the strikers as having quit their job when
the strike commenced and dictated they would not be al-
lowed back on the job. Though four electrical workers had
been supplied by a subcontractor to the work in place of the
strikers, General Counsel’s Exhibit 23 reflects that Respond-
ent’s own employees Gary Byers, Mark Freo, Leonard Hop-
per, Dave Maggert, Jim Meyers, and Mike Starnes were
transferred at least part time to the Essex job. Each of these
employees worked both at Essex as well as at another jobsite
and all were working substantial overtime. If Respondent had
any intention of allowing the strikers to return to work, it
would have been simple to allow them to do so and simply
return the employees named above to their regular jobs and
eliminate the overtime.
It is clear to me however, that Respondent had no inten-
tion of allowing the employees to return. In addition to
Lafleur’s testimony about the strikers’ true status, Respond-
ent’s employment records for Guinn, Serna, Boatman Sr.,
and Boatman Jr., all reflect ‘‘employee quit’’ on April 12 or
13, 1993. Without a shred of credibility, Dick Dilling, Roger
Seely, and Glen Click all disclaimed any knowledge as to
who authorized that entry on these employees personnel
records, speculating it might have be done by an office sec-
retary.
Also, on April 20, the employees faxed a letter making an
unconditional offer to return to work to Respondent, which
received the fax about 8:15 a.m. on April 20. This letter,
signed by Guinn, Boatman Sr. and Jr., Serna, and Kaufman
was sent to Dilling on union stationery and reads:
This letter is to notify you that as of 7:00 A.M., 20
April 1993 the Organizing Committee has uncondition-
ally called off their Unfair Labor Practice Strike against
Dilling Mech./Elec. Contractors and returned to work.
They have reported to the Essex Wire jobsite of which
they were last assigned and are ready to go back to
work.
If you have any questions, please contact Ed Butler
with I.B.E.W. Local 668 at 317-474-1021.
Other than the response given to Guinn, Kaufman, and
Serna by Click, Respondent made no other response to either
the physical offer to return or the faxed letter. None of the
strikers contacted Dick Dilling. The picketing resumed after
the strikers were not allowed to return to work at the Essex
jobsite on the morning of April 20. It continued for about
a month at the Essex site, and in addition, in front of the
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Dick Dilling testified that he waited all day on April 20, 1993,
for a call from the strikers so he could reassign them. I do not be-
lieve this testimony and do not credit it.
Logansport headquarters of Respondent. Though Respond-
ent’s management observed the picketing, nothing was said
to the strikers about returning to work.
On July 27, 1993, another letter was sent by the above-
named strikers to Dilling stating:
We are aware of the fact that you are attempting to
hire employees through the services of Manpower Tem-
porary Services, Kokomo and Flexible Personnel, Peru.
We wish to remind you that the following employees
of Dilling Mechanical/Electrical did issue you an un-
conditional return to work, following their strike and
still wish to return to work for your company.
Respondent, by its attorney, responded to this letter on
August 4, 1993. This letter states, inter alia:
It is unclear from the text of your letter whether or
not you are acting on behalf of the individuals named
in your letter. There is nothing in your letter that indi-
cates that you are authorized to act on their behalf. Fur-
thermore, the second paragraph of your letter states in
part that ‘‘the following employees of Dilling
Mechanical/Electrical did issue you an unconditional
offer to return to work for your company.’’ However,
there is no record of such an action by these employ-
ees. Consequently, if you possess relevant documents
which substantiate your statements, please forward them
to me. Finally, please confirm the current employment
status of these six individuals, including wage rates,
and job functions. All of these individuals have recently
refused an opportunity to work with Dilling. Therefore,
the representations in your letter require further clari-
fication.’’
On April 20, 1994, another letter was sent, this time with
the signatures of the strikers named in the first letter and ad-
ditionally by Jeff Guinn, Lanis Smith, Bill Bishop, and Al-
bert Cadwallader, which stated:
This letter is to restate and to remind you that on
April 20, 1993 and several occasions since then, the or-
ganizing committee of IBEW Local 668 made an un-
conditional offer to return to work on behalf of the Un-
fair Labor Practice Strikers.
As we have stated before, the ULP Strikers are will-
ing to discontinue their strike and return to work. If you
do not have a means to contact any of the strikers, you
can get in touch with them by calling Ed Butler at 317-
474-1021, Monday thru Friday from 8 a.m. until 5:00
p.m. If you have any questions regarding this matter,
please don’t hesitate to contact Ed Butler.
The letter of August 4, 1993, by Respondent counsel is the
only response to the offers to return to work since the April
20, 1993, response by Click to Guinn.
I find from the evidence that Respondent terminated the
employment of the strikers when they commenced their
strike based on the statement credibly attributed to Dick
Dilling by Lafleur at the strikes inception and by the strikers
personnel records.27 I find that they were informed that their
employment had been terminated when Click told Guinn,
Kaufman, and Serna that they had quit their employment and
had been replaced. Conditioning possible reemployment on a
call to or interview with Dick Dilling was not lawful. As the
Board stated in Chesapeake Plywood, supra, 294 NLRB at
202–203:
The strike was an unfair labor practice strike from its
inception. Consequently, the Respondent was not at lib-
erty to threaten to terminate or terminate any of its
striking employees because they failed to respond to the
May 22 letter. As unfair labor practice strikers, they
could not lawfully be discharged, or threatened with
discharge or other disciplinary action, other than for
misconduct causing them to lose the protection of the
Act. They were entitled to reinstatement on making an
unconditional offer to return to work and their reinstate-
ment rights were paramount over any replacements
hired for them during the strike. The Respondent, there-
fore, could not diminish, circumscribe, or affect their
reinstatement rights through preferential hiring lists of
the kind it established here or subordinate those rights
to the rights of employees hired to replace them. In-
deed, the replacements for the strikers should have been
discharged, if necessary, to accommodate the reinstate-
ment of the unfair labor practice strikers when they
sought reinstatement.
I find that Respondent had an obligation to reinstate the
unfair labor practice strikers to their former jobs when they
made what is clearly an unconditional offer to return to
work. Telling them they are considered to have quit, have
been replaced, and must therefore call Dilling is not suffi-
cient. Respondent had the obligation to inform them that they
would be returned to work and do so. Respondent chose to
do neither and thus has violated Section 8(a)(1) and (3) of
the Act. Its late found argument that it was confused about
the strikers’ intentions when they returned to the picket line
after having been rebuffed by Click is spurious. It did not
respond in any fashion to the faxed letter it received on April
20, even to inquire if the offer to return was still valid and
was unconditional. Its response to the July 27, 1993 letter re-
minding Respondent that there was an outstanding offer to
return to work is disingenuous, questioning the right of the
Union to make such an offer on behalf of the strikers and
even denying that such an offer had ever been made. I find
that Respondent’s actions with regard to various offers by
the strikers to return to work are unlawful and amount only
to an unlawful termination of their employment.
E. Respondent Violated the Act by its Actions Taken
Against its Plumbing Employees
1. The allegations involving Supervisor Dick Eldridge
(complaint allegation 1(a))
Michael Underhill was employed by Dilling from Novem-
ber 2, 1990, until May 28, 1993. For the first year and a
half, he was a plumber foreman. He then gave up his fore-
1155DILLING MECHANICAL CONTRACTORS
28 I can find no evidence in the record to support those complaint
allegations with reference to actions taken by Queen denoted as alle-
gations 1(k)(i) and (n)(i)(ii). I therefore recommend dismissal of
these allegations.
man’s job and worked as a plumber. In the summer of 1992,
he learned from Mike Boatman and Bob Guinn that the elec-
tricians were trying to organize Dilling. In September, he
was asked by Tom Pantera, an organizer for the Plumbers
Union, to assist in organizing the plumbers working for
Dilling. Underhill agreed to help and gave Pantera the names
and addresses of Respondent’s plumbers and pipefitters. Fol-
lowing this, he spoke with a number of these employees
about the Union. At the time, and until about the time he left
Respondent’s employ, he worked at a project in Logansport,
Indiana. His supervisor was Dick Eldridge. On or about De-
cember 1, 1992, the job was visited by Union Representative
Paul Long at lunchtime. Other than Underhill, one unnamed
plumber and plumbers Roy Belt, Bobby Johnson, and Bret
Johnson were working on the project. Long spoke with them
for about 15 or 20 minutes.
On the next day, in Respondent’s office trailer on the site,
Eldridge spoke to the plumber employees. He asked if a
union representative had visited the jobsite and Underhill
said he had. According to Underhill, Eldridge said, ‘‘Well,
I am going to tell you right now, Dick Dilling can’t fire any-
one for talking union, but I can. And I will.’’ As the meeting
broke up, Eldridge asked Underhill if he was a member of
a union and Underhill said he was not.
Bobby Johnson testified that Eldridge said that Dick
Dilling is not in a position to fire anybody, but I am if there
is any union discussion on the job.
Eldridge testified that he told the employees that a union
was trying to organize the Company without taking any posi-
tion on the campaign. He was trying to keep them from pan-
icking or getting upset. He denies interrogating the employ-
ees and denies making any new rules.
I credit the testimony of Underhill and Johnson and find
that Eldridge threatened to discharge employees for engaging
in union or other protected concerted activities. Eldridge did
not deny specifically the threats attributed to him and did not
appear credible in any case. A threat to discharge employees
for engaging in protected activity clearly tends to restrain,
interfere with, and coerce employees in the exercise of their
protected rights and is thus violative of Section 8(a)(1) of the
Act.
2. The allegations involving Supervisor Jerry Bunn
(complaint allegations 1(j)(i) and (ii))
Michael Underhill moved to another jobsite, the Weaver
Popcorn job, in about May 1993, where he was supervised
by Jerry Bunn. Underhill had been on the job for a few days,
when he was asked to come to the Company’s office trailer
on site. Bunn told him that he and Mike Boatman were jeop-
ardizing his future with Dick Dilling by trying to organize
the Union. Underhill asked how Bunn found out that he had
been talking Union. Bunn said one of his employees told
him. Underhill asked which one and Bunn refused to tell
him, adding that Underhill was not to talk Union on his job.
On cross-examination, Underhill denied that Bunn told him
he had had complaints from an employee to the effect that
Underhill was harassing him about the Union and union or-
ganizing. Bunn did testify that Bunn told him that he was
not to pursue employees who had expressed a desire not
want to talk union shop with him.
Respondent chose not to call Bunn to testify, and thus
Underhill’s testimony is unrefuted. Obviously Respondent
wants the inference drawn from the foregoing recitation of
the evidence with regard to Bunn that Bunn had received a
complaint from a fellow employee that he was being har-
assed by Underhill and that he wanted it to stop. In the ab-
sence of Bunn’s testimony however, I cannot make such an
inference. Based on the evidence before me, I have a super-
visor prefacing his remarks with a veiled threat that the em-
ployee is jeopardizing his future by the employee’s organiz-
ing efforts. I then have evidence that Respondent is aware
of the organizing efforts of this employee and another,
though Underhill did not wear any union insignia to the job.
I have Underhill’s testimony that he was then instructed not
to talk about the Union on the job, and the additional admo-
nition that he was not to talk about the Union to employees
who did not want to talk about it. I credit Underhill’s testi-
mony that he was told not to talk about the Union at the job.
It is entirely consistent with the admonition Respondent gave
to its electrical employees and with that given the plumbing
employees by Eldridge. I find that it is unlawful as the Re-
spondent did not have in place a lawful no-solicitation rule
and there was no prohibition about talking about any other
subject on the job.
I also find as alleged in the complaint that Bunn’s state-
ments give the impression that Underhill’s protected activi-
ties were under surveillance by Respondent, in violation of
Section 8(a)(1) of the Act.
3. Allegations involving Supervisor Ed Queen
(complaint allegations 1(g), (h), and (k)(ii))28
Thomas Zent worked as a journeyman plumber for Re-
spondent from May until August 1994. At about the time he
started work at Dilling he was approached by Union Rep-
resentative Tom Bear and asked to help organize the plumb-
ers. When Zent was hired, he was shown a set of written em-
ployee rules. He was assigned to a variety of jobsites, even-
tually ending at a site called the Donnelly job in Warsaw,
Indiana. His supervisor on that job was Ed Queen. For 2
months, Zent kept his union sympathies to himself. In Au-
gust 1994, however, Zent wore a union hat and T-shirt to
work and told Queen he was in the Union. Queen told him
that he could not wear the insignia, and then amended that
to say that he would have to check to see if it was against
company rules. Queen, however, did not get back to Zent
with any information about the rules. According to Zent,
Queen also told Zent to wear his safety glasses on this day.
Zent contends that the wearing of such glasses is required by
Respondent’s rules, but is not strictly enforced. He contends
that on this occasion another plumber was standing nearby
without wearing his glasses and was not similarly admon-
ished. Zent also testified that this admonition came after he
was fired. I cannot find that this makes any sense and will
not find a violation of the Act as alleged in the complaint.
About a week later, Zent again wore a union T-shirt and
Queen observed him and said, ‘‘What did I tell you about
that shirt.’’ Zent said he was not taking it off. Queen then
fired him. Other employees were allowed to wear hats and
T-shirts with logos other than Dilling’s on them. Later that
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 No one supplied this man’s full name for the record. On the
other hand, no one disputed that a person named ‘‘Paul’’ was a su-
pervisor on the involved job.
same day, Queen called Zent and offered him his job back,
saying that he could not fire him for wearing the T-shirt.
Zent later talked with Dick Dilling’s wife about the matter
and agreed to return to work.
Zent’s testimony is undisputed. I therefore find that he was
unlawfully prohibited from wearing union insignia, unlaw-
fully threatened for wearing the insignia and was unlawfully
discharged for wearing such insignia in violation of Section
8(a)(1) and (3) of the Act.
Thereafter in the next few days, Zent would wear his T-
shirt, which caused comments and what Zent characterized as
‘‘riding’’ from Queen. Additionally, the job superintendent,
whose first name is Paul, told him ‘‘that he really shouldn’t
be wearing the shirt and that it wasn’t right.’’29 Zent re-
sponded that he had every right to wear the shirt and that
he was not going to take it off. The complaint alleges that
this supervisor prohibited Zent from wearing the T-shirt. I
disagree. The supervisor clearly did not prohibit Zent from
wearing the shirt. The negative comment does carry an im-
plied threat, however, especially in light of Zent’s abortive
discharge the day before. Accordingly, I find that the com-
ment violates Section 8(a)(1) of the Act.
Later that day, when Zent took a break with other employ-
ees, Queen came to get him to return to work, without telling
the other employees to do so. Queen escorted him back to
his worksite. As they were walking back to Zent’s work-
place, Queen told him, ‘‘If you want to play games, I can
play games, too.’’ Again this evidence is undisputed and I
find that Respondent, through Queen, discriminatorily re-
stricted Zent’s breaktime because of his union activity. This
is a violation of Section 8(a)(1) of the Act.
Zent at some point after returning to work from his dis-
charge called Dick Dilling and asked for a raise. Dilling re-
ferred him to an area manager for the Company, whom Zent
asked for a $3- or $4-an-hour raise. The manager said that
was a lot of money and that he could not give him the raise,
as he had not worked there long enough. Zent then said he
was going on an economic strike and did so. Zent has had
no further contact with Respondent.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The involved Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by:
(a) About December 2, 1992, by Dick Eldridge, at the
trailer at the Logansport Memorial Hospital jobsite, threaten-
ing employees with discharge if they engaged in union and
protected concerted activities.
(b) About January 6, 1993, by oral announcement of Fred
Williams, at the TRW jobsite, imposing more onerous and
rigorous terms and conditions of employment on its electrical
worker employees when it:
(i) instituted more strict enforcement of its rules of
conduct and employment rules because its employees
engaged in union and protected concerted activities.
(ii) changed its former break policy to more severely
restrict electrical employees’ freedom of movement on
the jobsite because its employees engaged in union and
protected concerted activities.
(c) About January 6, 1993, by oral announcement at the
TRW jobsite, promulgating and since then maintaining a rule
restricting employees’ union activities to their time off and
away from Respondent’s premises.
(d) About January 8, 1993, by Glen Click at the Morton
jobsite, interrogating its employees about their union mem-
bership, activities, and sympathies and the union member-
ship, activities, and sympathies of other employees.
(e) About January 15, 1993, by Glen Click at the Morton
jobsite, interrogating employees about their union member-
ship, activities, and sympathies and the union membership,
activities, and sympathies of other employees.
(f) About February 8, 1993, and thereafter in February,
March, and April 1993, by Roger Seely, at the Essex jobsite,
subjecting certain of its employees to more strict surveillance
of their work product, inclusive of standing over and near
employees while they worked, physical intimidation, and
verbal abuse because they engaged in union and protected
concerted activities.
(g) About February, March, and April 1993, by Roger
Seely, at the Essex jobsite, taking photographs of employees
involved in picketing, engaged in surveillance of employees
engaged in union and protected concerted activities.
(h) About May 31, 1993, by Jerry Bunn, at the Weaver
Popcorn jobsite.
(i) instructing employees to cease their union and
protected concerted activities.
(ii) creating an impression among employees that
their union and protected concerted activities were
under surveillance by Respondent.
(i) About August 3, 1994, by Ed Queen at the R. R. Don-
nelly jobsite, prohibiting its employees from wearing or oth-
erwise displaying union insignia.
(j) About August 8, 1994, by Ed Queen at the R. R. Don-
nelly jobsite, threatened to discharge an employee because he
wore clothing bearing union insignia.
(k) About August 9, 1994, by Paul (surname unknown), at
the R. R. Donnelly jobsite, impliedly threatening an em-
ployee with reprisal for wearing or otherwise displaying
union insignia.
4. Respondent has violated Section 8(a)(1) and (3) of the
Act, by:
(a) About January 11, 1993, issuing verbal reprimands to
its employees David Hicks, J. E. Culpepper, and John Cul-
pepper.
(b) About February 8, 1993, imposing more onerous and
rigorous terms and conditions of employment on its electrical
worker employees at the Essex jobsite, by assigning Roger
Seely to oversee their work and handle all personnel matters.
(c) Causing the constructive discharge of J. E. Culpepper
on March 3, 1993.
(d) About February 10, 1993, imposing more onerous and
rigorous terms and conditions of employment on its electrical
worker employees by introducing a production quota system
at the Essex jobsite.
(e) About March 16, 1993, issuing a written reprimand to
its employee Lanis Smith.
1157DILLING MECHANICAL CONTRACTORS
30 I have heretofore found that Respondent hired this discriminatee
for the Essex project only. Therefore, as the job has long since been
completed, I am not recommending reinstatement.
31 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.
(f) Between August 3 and 11, 1994, imposing more oner-
ous and rigorous terms and conditions of employment on its
employee Thomas J. Zent at the R. R. Donnelly jobsite, by
restricting the length of his break periods.
(g) About August 8, 1994, terminating its employee
Thomas J. Zent.
5. Since about April 12, 1993, certain employees of Re-
spondent employed at the Essex jobsite ceased work
concertedly and engaged in a strike caused by Respondent’s
unfair labor practices described above in paragraphs 3(f) and
(g) and 4(b) and (c).
6. About April 20, 1993, by letter dated April 19, 1993,
sent via facsimile, and by oral announcement, all employees
who had engaged in the strike made an unconditional offer
to return to work.
7. Respondent has violated Section 8(a)(1) and (3) by:
(a) Since about April 20, 1993, failing and refusing to re-
instate the striking employees who made the unconditional
offer to return to work to their former positions of employ-
ment or to substantially equivalent positions.
(b) About April 20, 1993, by failing to reinstate the in-
volved strikers, causing their termination.
8. The unfair labor practices which Respondent has been
found to have committed affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
9. Respondent did not commit the other violations of the
Act alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in conduct in
violation of Section 8(a)(1) and (3) of the Act, I recommend
that it be ordered to cease and desist therefrom and take the
following affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent unlawfully failed and re-
fused to reinstate unfair labor practice strikers Robert Guinn,
Donna Serna Hoaks, Eugene Kaufman, Michael Boatman Sr.,
and Michael Boatman Jr., I recommend that it be ordered to
offer them immediate reinstatement to their former positions
or to substantially equivalent positions, discharging if nec-
essary any employees hired to replace them, and to make
them whole for any loss of wages or benefits they may have
suffered by Respondent’s discriminatory actions toward
them. Backpay shall run from April 20, 1993, until the date
Respondent offers the discriminatees reinstatement to their
former positions, and shall be computed in accordance with
the Board’s policy as set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest computed as set forth in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
Having found that Respondent constructively discharged
its employee J. E. Culpepper on March 3, 1993, I rec-
ommend that Respondent be ordered to make him whole for
any loss of wages or benefits he may have suffered by Re-
spondent’s discriminatory action against him. Backpay shall
run from March 3, 1993, until the date it is shown that work
on the Essex Wire Products job in Franklin, Indiana, was
completed.30 Backpay and interest shall be computed in the
manner set forth above.
Having found that Respondent issued unlawful discipline
to Lanis Smith on March 16, 1993, and to J. E. Culpepper,
David Hicks, and John Culpepper, on January 11, 1993, I
recommend that Respondent be ordered to expunge from its
records the warnings given these employees and notify them
in writing that it has done so and that such warnings will not
be used against them in any way.
Having found that Respondent has promulgated and en-
forced an unlawful rule restricting employees’ rights to talk
about unions at the workplace, and has promulgated and en-
forced an unlawful quota system, I recommend that it be or-
dered to rescind such unlawful rule and quota system and
cease and desist from enforcing same.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended31
ORDER
The Respondent, Dilling Mechanical Contractors, Inc., Lo-
gansport, Indiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with discharge if they engaged
in union and protected concerted activities.
(b) Imposing more onerous and rigorous terms and condi-
tions of employment on its electrical worker employees by
instituting more strict enforcement of its rules of conduct and
employment rules changing its former break policy to more
severely restrict electrical employees’ freedom of movement
on the jobsite because its employees engaged in union and
protected concerted activities.
(c) Promulgating and since then maintaining a rule restrict-
ing employees’ union activities to their time off and away
from Respondent’s premises.
(d) Interrogating its employees about their union member-
ship, activities, and sympathies and the union membership,
activities, and sympathies of other employees.
(e) Imposing more onerous and rigorous terms and condi-
tions of employment on its employees by assigning a super-
visor to oversee employees’ work and handle all personnel
matters, subjecting certain of its employees to more strict
surveillance of their work product, inclusive of standing over
and near employees while they worked, physical intimida-
tion, and verbal abuse because they engaged in union and
protected concerted activities.
(f) Taking photographs of employees involved in picketing
without any justification for so doing.
(g) Instructing employees to cease their union and pro-
tected concerted activities; and creating an impression among
employees that their union and protected concerted activities
were under surveillance by Respondent.
(h) Prohibiting its employees from wearing or otherwise
displaying union insignia.
(i) Threatening to discharge an employee because he wore
clothing bearing union insignia.
(j) Impliedly threatening an employee with reprisal for
wearing or otherwise displaying union insignia.
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 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.’’
(k) Issuing verbal reprimands to its employees for engag-
ing in union or other protected concerted activities.
(l) Causing the constructive discharge of employees be-
cause they engaged in union or other protected concerted ac-
tivities.
(m) Imposing more onerous and rigorous terms and condi-
tions of employment on its employees by introducing a pro-
duction quota system, and restricting the length of break pe-
riods, because they engaged in union or other protected con-
certed activities.
(n) Issuing discipline to employees because they engaged
in union or other protected concerted activities.
(o) Discharging employees because they wear union insig-
nia at the workplace or engaging in other union or protected
concerted activities.
(p) Failing and refusing to reinstate striking employees
who made an unconditional offer to return to work on April
20, 1993, to their former positions of employment or to sub-
stantially equivalent positions.
(q) Terminating employees who engage in an unfair labor
practice strike.
(r) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the 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.
(a) Offer Robert Guinn, Donna Serna Hoaks, Eugene
Kaufman, Michael Boatman Sr., and Michael Boatman Jr.
immediate reinstatement to their former positions or to sub-
stantially equivalent positions, discharging if necessary any
employees hired to replace them, and make them whole for
any loss of wages or benefits they may have suffered by Re-
spondent’s discriminatory actions toward them, with interest.
(b) Make J. E. Culpepper whole for any loss of wages or
benefits he may have suffered by Respondent’s discrimina-
tory action against him in the manner set forth in the remedy
section of this decision.
(c) Rescind and remove from their personnel files any evi-
dence of unlawful discipline issued to Lanis Smith on March
16, 1993, and to J. E. Culpepper, David Hicks, and John
Culpepper on January 11, 1993, and notify them in writing
that it has done so and that such discipline will not be used
against them in any way.
(d) Rescind and cease enforcing its unlawful rule restrict-
ing employees’ rights to talk about unions at the workplace,
and its unlawful quota system.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying all payroll records,
social security payment records, timecards, personnel records,
and reports and all other records necessary or useful in com-
plying with the terms of this Order.
(f) Post at its facility in Logansport, Indiana, and at any
subsidiary or jobsite office maintained by it, copies of the at-
tached notice marked ‘‘Appendix.’’32 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) 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 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 our employees with discharge if
they engage in union and protected concerted activities.
WE WILL NOT impose more onerous and rigorous terms
and conditions of employment on our electrical worker em-
ployees by instituting more strict enforcement of our rules of
conduct and employment rules, changing our former break
policy to more severely restrict electrical employees’ free-
dom of movement on the jobsite because our employees en-
gaged in union and protected concerted activities.
WE WILL NOT promulgate and maintaining a rule restrict-
ing employees’ union activities to their time off and away
from our premises.
WE WILL NOT interrogate our employees about their union
membership, activities, and sympathies and the union mem-
bership, activities, and sympathies of other employees.
WE WILL NOT impose more onerous and rigorous terms
and conditions of employment on our employees by assign-
ing a supervisor to oversee employees’ work and handle all
personnel matters, subjecting certain of our employees to
more strict surveillance of their work product, inclusive of
standing over and near employees while they worked, phys-
ical intimidation, and verbal abuse because they engaged in
union and protected concerted activities.
WE WILL NOT take photographs of employees involved in
picketing without any justification for so doing.
WE WILL NOT instruct employees to cease their union and
protected concerted activities and create an impression
among employees that their union and protected concerted
activities are under surveillance by us.
WE WILL NOT prohibit our employees from wearing or
otherwise displaying union insignia.
WE WILL NOT threaten to discharge an employee for wear-
ing clothing bearing union insignia.
1159DILLING MECHANICAL CONTRACTORS
WE WILL NOT impliedly threaten an employee with re-
prisal for wearing or otherwise displaying union insignia.
WE WILL NOT issue reprimands or other discipline to our
employees for engaging in union or other protected concerted
activities.
WE WILL NOT cause the constructive discharge of employ-
ees because they engage in union or other protected con-
certed activities.
WE WILL NOT impose more onerous and rigorous terms
and conditions of employment on our employees by intro-
ducing a production quota system, and restricting the length
of break periods, because they engage in union or other pro-
tected concerted activities.
WE WILL NOT discharge employees because they wear
union insignia at the workplace or engage in other union or
protected concerted activities.
WE WILL NOT fail and refuse to reinstate our striking em-
ployees who made an unconditional offer to return to work
on April 20, 1993, to their former positions of employment
or to substantially equivalent positions.
WE WILL NOT terminate employees who engage in an un-
fair labor practice strike.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Robert Guinn, Donna Serna Hoaks, Eugene
Kaufman, Michael Boatman Sr., and Michael Boatman Jr.
immediate reinstatement to their former positions or to sub-
stantially equivalent positions, discharging if necessary any
employees hired to replace them, and make them whole for
any loss of wages or benefits they may have suffered by our
discriminatory actions toward them, with interest.
WE WILL make J. E. Culpepper whole for any loss of
wages or benefits he may have suffered by our discrimina-
tory action against him, with interest.
WE WILL rescind and remove from their personnel files
any evidence of unlawful discipline issued to Lanis Smith on
March 16, 1993, and to J. E. Culpepper, David Hicks, and
John Culpepper on January 11, 1993, and notify them in
writing that it has done so and that such discipline will not
be used against them in any way.
WE WILL rescind and cease enforcing our unlawful rule re-
stricting employees’ rights to talk about unions at the work-
place and our unlawful quota system.
DILLING MECHANICAL CONTRACTORS, INC.