Edlen Electrical Exhibition Services

National Labor Relations Board - Administrative Judge Opinions

Aug 8, 2008

12-CA-025582 (N.L.R.B. Aug. 8, 2008)

JD(ATL)–29–08
Orlando, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
EDLEN ELECTRICAL EXHIBITION
SERVICES, INC., OF ORLANDO
and
MICHAEL D. MATHERS, an Individual
Case 12–CA–25582
and
JASON DRIVER, an Individual
Case 12–CA–25623
Thomas W. Brudney, Esq., for the General Counsel.
Robert W. Rasch, Esq., for the Respondent.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. These cases were heard in Orlando,
Florida, on June 2 and 3, 2008, pursuant to a consolidated complaint that issued on February
29, 2008.1 The complaint alleges that the Respondent threatened employees with discharge for
filing grievances in violation of Section 8(a)(1) of the National Labor Relations Act, denied a
work assignment to, and laid off, Charging Party Mathers because of his union activities in
violation of Section 8(a)(1) and (3) of the Act, and discharged Charging Party Driver because of
his union activities in violation of Section 8(a)(1) and (3) of the Act. The Respondent denies that
it violated the Act.2 I find that the Respondent did violate the Act substantially as alleged in the
complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
The Respondent, Edlen Electrical Exhibition Services, Inc., of Orlando, the Company,
provides electrical set-up and supply to tradeshows, including recreational vehicle (RV)
tradeshows and other mobile commercial industrial tradeshows, throughout the United States
from its facilities based in Orlando, Florida, from which it annually sells and delivers goods and
materials valued in excess of $50,000 directly to entities in states other than the State of

1 All dates are in 2007 unless otherwise indicated. The charge in Case No. 12–CA–25582 was
filed on October 4 and amended on November 26. The charge in 12–CA–25623 was filed on
November 9 and was amended on December 5.
2 The name of the Respondent was amended at the hearing. Page 161 of the transcript has
been corrected.
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Florida. The Respondent admits, and I find and conclude, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that International Brotherhood of
Electrical Workers and its Local Union No. 606 (Local 606), its Local Union No. 143 (Local
143), and its Local Union No. 494 (Local 494), are labor organizations within the meaning of
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
The Company, established in 1989, is owned by James Boone and a partner. Boone is
President of the Company. The offices of the Company and shop from which its 20 to 25
employees work are located in Orlando, Florida. The Operations Manager and Vice President is
Louise Murray, who oversees various aspects of the business including administrative and
personnel matters. Manager Mike Fisher oversees the electrical work performed by the
employees who work under his direction and the direction of two other supervisors. Most of the
work performed by the Company is performed in the Orlando area where there are numerous
attractions, including Walt Disney World and Universal Studies, and hotels at which the
Company provides electrical services to vendors who promote their products at various
tradeshows. The Company also provides set up and electrical services out-of-state at golf
tournaments, tool shows, and RV shows. The two out-of-state locations relevant to this
proceeding were an RV tradeshow in Hershey, Pennsylvania, in September 2007 and a tool
tradeshow in Milwaukee, Wisconsin, in October 2007.
The Company initially recognized Local 606 pursuant to a Section 8(f) agreement in
1993. On October 27, 2003, the Company recognized the Union as the employees’ Section 9(a)
representative. The Company is a member of the Central Florida Chapter of the National
Electrical Contractors Association (NECA) and is bound by the national agreement on portability
between the International Union and the NECA. The portability agreement provides that
contractors who are signatory to an agreement with one local union may send employees “who
are knowledgeable of the contractor’s work practices and customer’s requirements” into the
jurisdiction of other local unions to perform work, subject to certain restrictions including
payment of the applicable local wage.
Business Manager of Local 606 Harry Brown explained that he would not be aware
every time a signatory contractor with Local 606 was performing work in the jurisdiction of
another local union. He would call another local to find out the requirements of that local union
only if someone called him and “asked me to make the call.” President Boone testified that,
typically, for a job of short duration such as a tradeshow, the local union having
jurisdiction would not require the Company to sign a local agreement, that it was “more of
an aggravation and a problem [for] them to set this up” and that, usually, they would
require that the Company “let them know we are in their territory” and were following the
rules of their home local, Local 606. Boone had signed local agreements when the
Company was working in New Orleans and in South Bend when requested to do so.
On previous occasions that the Company had performed work in Hershey, Local 143
had been notified that the Company was performing work in its jurisdiction and had required
only that the Company follow its contract with Local 606. Prior to sending employees to Hershey
in 2007, Operations Manager Murray called Local 143 and informed President Robert Rhoades
of the manner in which overtime was computed in Local 606. President Rhoades agreed that
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the employees coming to Hershey simply needed to call in, that the Company could follow its
Local 606 contract.
Boone was unaware whether, prior to 2007, Local 494 in Milwaukee had been notified
that the Company was performing work in its jurisdiction. In 2007, the Company did notify Local
494 in Milwaukee that the Company was going to be working in its jurisdiction, and Local 494
required that the Company sign its local agreement.
B. The Layoff of Michael D. Mathers
1. Facts
Michael Mathers was hired in December 2006. Thereafter he performed various duties
including an RV show in Tampa, Florida. On July 22, he was sent, by himself, to set up a water
conservation tradeshow at Saddle Brook Resort in Tampa, Florida, which is about a one hour
drive from Orlando. The timesheet he turned in reflected that he worked 11 hours. Shortly after
submitting his timesheet, Operations Manager Murray called Mathers to her office where she
questioned him regarding the time charged, time that she considered excessive.
At the hearing, Mathers explained that two of the hours were driving from Orlando to
Tampa and back to Orlando, that it took him about three or four hours to set up the electrical
supply cables for the booths of the various vendors, and that he remained at the site in order to
collect payments from the vendors who connected to the electricity supplied by the cables. On
cross examination he admitted that he waited around for the vendors to arrive so that he could
make some collections because Manager Fisher had told him to “get whatever payments” he
could on the day that he did the set up.
Operations Manager Murray acknowledged questioning Mathers regarding his time
sheet, stating that she “felt the hours were excessive,” and asking whether anything
happened on that job that “would make him stay there for 11 hours.” She recalled that
Mathers responded that he “just went to the job.” Murray asked whether he thought the
hours were excessive, and that Mathers acknowledged, “[Y]eah, kind of.” She then asked
how he would have handled the situation if he had been in Orlando, and Mathers stated
that he would have called Fisher, presumably to determine how long he should wait to
make whatever collections he could from the vendors. Murray testified she told Mathers
that “the next time you go out on a job like this and you think the hours are excessive,
please call in to the office and we will give you direction.”
Mathers agrees that Murray questioned him regarding the number of hours that were
reflected on his timesheet. He told her that Fisher did not want him to go the next day and told
him to “go set it up, get whatever payments you can on the show, and make sure
everything is set up and running good and leave.” He explained that he “had to wait for
the vendors to come in,” that he did so and “got a few collections, and everything was
good, and then I left.” He testified that Murray claimed that he was “padding the time”
and said “that's all I want to talk about this.” Mathers replied, “[A]ll right,” and that “the
next time I speak to you, I want a union rep -- I want to be represented by a union
member the next time I talk to you.” Murray answered, “[T]hat's the part I don't like about
unions.” Mathers responded, “[W]ell, it's people like you, that's why unions are here.”
A pretrial affidavit signed by Mathers states that he told Murray that if he needed to talk
to her again he would invoke his “Weingarten rights” (NLRB v. Weingarten, 420 U.S. 251
(1975)), and that he was “not gong to put myself in this position again without having a union
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representative present.” On cross examination he acknowledged that, although he had heard
about Weingarten, he did not know the “whole definition” and did not use that word when
speaking with Murray. Although Mathers’ inclusion of the term Weingarten in his affidavit
detracts from his credibility, his forthright acknowledgement that he did not use the term
Weingarten when speaking with Murray enhances his credibility. Murray denied that Mathers
made any statement regarding a union representative or that she stated anything regarding not
liking unions. I credit Mathers, both upon his demeanor and the unimpressive demeanor of
Murray coupled with her giving Mathers a false reason for his layoff.
In early August, Manager Mike Fisher asked any employees who desired to work two
separate tradeshows, an RV tradeshow in Hershey, Pennsylvania, and a tool tradeshow in
Milwaukee, Wisconsin, to express their interest in working at one or both of the tradeshows.
Mathers, who has a sister in Hershey, volunteered for that tradeshow. Mathers, a relatively new
employee, called Local 606 and spoke with President Harry Brown who explained that when
employees go out of Local 606, they are required to notify the local union with jurisdiction over
the location. Although Business Manager Brown recalls receiving a call from an Edlen
employee regarding working in the jurisdiction of the Local 143, he did not recall who
called him. Mathers called Local 143, the local union with jurisdiction in Hershey, and learned
that their hourly rates were higher than the contractual rates of Local 606.
Shortly thereafter, Mathers spoke with President Boone about hotel rooms in Hershey,
explaining that he needed a single room because he had sleep apnea. Boone stated that that
was no problem. Mathers noted that the rate of pay in Local 143 was $26.50 with overtime
after eight hours and time and one half on Saturday, double time on Sunday. Boone
replied that he “had no problem with the pay … [that] if he has to pay it, he has to pay.”
Boone admits the conversation regarding the room, but denied that the rates of the
Pennsylvania local union were mentioned. I credit Mathers and find that he did mention
the pay rate. Mathers did not inform Boone that he had called Local 143 or that the
information regarding the pay rate had been given directly to him. At some point, Boone
learned that Mathers had a sister in Hershey with whom he “wanted to spend some time.”
Boone testified that he “would not have had a problem with that.”
Boone testified that he wanted employee Emmett Swinson to go to the Hershey
tradeshow, arriving on September 5, but that Swinson's wife was experiencing medical
problems, and he did not want to go. That situation changed shortly before Boone
obtained airline tickets on August 27, to fly the employees to Harrisburg, the city nearest
to Hershey, and he selected Swinson, who had agreed to go. Operations Manager
Murray testified that Boone sent Swinson “in place of” Mathers.
Mathers recalled seeing his name upon what he thought was a list of the employees
going to Hershey. Boone testified that any such list would have been who he was “looking to
take or possibly be selected” and would have been thrown away. In view of the substitution
of Swinson for Mathers, his presence upon the nonexistent document is immaterial. Mathers
was told by employee Jason Driver that he was not included in the airline tickets. Mathers did
not express disappointment regarding his failure to be selected to any management official.
On August 31, prior to the departure of the employees selected to go to Hershey,
Mathers was laid off. The Company called the termination a layoff because Local 606 President
Brown had informed the Company that the Union could grieve a discharge, but not a layoff.
Mathers credibly testified that, on the day of his layoff, he had been working at Universal
Studios and was driving home when he received a call from supervisor Keith Hay who stated
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that he hated “to be the bearer of bad news,” but that Operations Manager Murray was
going to lay him off. Mathers asked why, and Hay replied that he had “no idea.” Mathers
returned to the shop. As he entered, he saw Mike Fisher and Hay sitting in the office and
asked why he was being laid off. They replied that they had no idea. As he went to the
office of Murray, he encountered President Boone and asked him why he was being laid
off. Boone replied that, “[W]e are going in a different direction, and you are one of the
unlucky ones to be laid off.” Boone did not deny the foregoing comment. Mathers then
met Murray who asked him to accompany her to her office. Once in the office she stated
that she hated that he had “to find out that you are getting laid off this way.” Mathers
asked why he was being laid off, and Murray replied, “[W]e are going in a different
direction, and you are just one of the unlucky ones. We are going to lay off a few other
people.” She gave no names. No other employees were laid off.
Operations Manager Murray initially testified that she laid off Mathers “[b]ecause he was
lazy, and he didn't do the job.” She stated that she had seen him “stand around … with his
hands folded, not working.” In further testimony she explained that she observed him “standing
in the same place in the shop” on the Company’s security video cameras. She reported her
observations to Manager Fisher and President Boone, and she claims that she asked Fisher to
speak to Mathers. Boone testified that he himself had spoken to Mathers “from a joking
standpoint,” telling him to “get moving,” that he was “standing around too much,” and on
one occasion stating that if he caught him “standing around again, we are going to have
some problems.” Fisher did not testify to any instances of laziness on the part of Mathers. He
testified that he “never” spoke to Mathers about laziness. There is no discipline of any kind in
the personnel file of Mathers.
Boone testified that, after Mathers was laid off, employee John Griffis questioned him
regarding why Mathers was let go and that he told Griffis that “he was lazy, and I had told
him numerous times to get to work.” Boone testified that Griffis replied that he had to tell
Mathers the same thing. Insofar as Mathers had already been laid off, the alleged
comment by Griffis could have played no part in the decision of the Company. Contrary
to the comment that Boone alleges that Griffis made, employee Griffis testified that
Mathers’ “work ethic was good,” that he worked with Mathers and that Mathers “was a
hard worker.” I credit Griffis. Boone admitted that Mathers was a “very good electrician.” I
note, with concern for credibility, that Boone informed employee Griffis that Mathers was
laid off because he was lazy but dissembled when speaking with Mathers, telling him that
the Company was “going in a different direction.”
Murray admitted that she did not state to Mathers that he was being laid off because he
was lazy. She recalls telling him that he was being laid off because there was a lack of work
and that “we didn't need that many people in our warehouse working, and, therefore, I
was laying him off.” She denied stating that the Company was “going in a different
direction.” On cross examination, Murray amended her initial testimony that Mathers was
laid off because he was lazy and didn't work by asserting an additional reason, “[W]e
were having a slowdown.” Counsel for the General Counsel questioned Murray about the
additional stated reason for the discharge, asking what work the Company did not have on
September 1 that it had on August 1, Murray answered, “In the warehouse, it's always the
same work, but there's usually less of it, and we don't really have to have people in the
warehouse to do it at any specific time.” No documentary evidence was presented in support
of a lack of work. Mathers was aware of various upcoming tradeshows.
I credit the testimony of Mathers that he was told that he was being laid off because the
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Company was “going in a different direction” and that he was one of the “unlucky ones.” Boone
did not deny making that comment to Mathers. I do not credit Murray’s denial that she made the
same statement to Mathers as Boone had made.
Prior to the layoff of Mathers, the only employees who had been separated from the
Company were employees who had been hired for short term specific jobs and one employee
who was “stealing time,” i.e. falsifying his time sheet. Although Murray had, in July, questioned
Mathers about the amount of time he spent at Saddle Brook, there was no contention that he
had falsified his time sheet and not spent the time reported. The contention was that the time
he spent was excessive.
Boone was not involved in the layoff of Mathers. He testified that Murray had “wanted to
let him [Mathers] go … in the last month prior” to laying him off on August 31 and that date was
chosen because “she wanted to do it on the end of the week,” which suggests that Boone
was aware of what was to occur several days before the layoff actually occurred. That
knowledge explains why an airline ticket was obtained for employee Greg Guenther, who
had no experience at RV tradeshows, rather than Mathers.
2. Analysis and Concluding Findings
The complaint alleges, and the General Counsel argues, that Mathers was denied the
Hershey assignment because of his union activities and laid off because of his union activities.
The Respondent argues that Mathers’ testimony was not credible and that, absent his
conversation with Murray, there is no evidence that the Respondent was aware of Mathers
having engaged in any union activity. The Respondent further argues that that there is no
evidence of animus and that the layoff of Mathers because of his laziness and lack of work
constituted legitimate reasons for his separation.
In assessing the evidence under the analytical framework of Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), I find that Mathers’ invocation of his
Weingarten rights by stating that “the next time I speak to you, I want a union rep -- I want
to be represented by a union member the next time I talk to you,” constituted union activity.
Circuit-Wise, Inc., 308 NLRB 1091, 1109 (1992). The finding in Circuit-Wise, Inc., is consistent
with IBM, Inc., 341 NLRB 1288, 1294 (2004), in which the Board limited the right to
representation in an investigatory interview to employees represented by a union. Thus,
Mathers’ statement relating to union representation at any future conversation constituted union
activity. An employer’s cooperative relationship with its employees’ collective bargaining
representative does not preclude finding that an employer bears animus towards employees
who assert their representational rights relating to grievance filing, and, by analogy, their rights
to representation at investigatory interviews. See New Orleans Cold Storage Co., 326 NLRB
1471 at fn. 1 (1998), enfd. 201 F.3d 592 (5th Cir. 2000). Murray’s response, “[T]hat's the part I
don't like about unions,” did not constitute a threat in violation of Section 8(a)(1), but it clearly
reflected antipathy towards employees who chose to exercise their right to representation.
I note that, although not stating the source of his knowledge, Mathers' mention of
the pay rates of Local 143 to Boone establishes that the Respondent was aware that he
knew his contractual rights. Insistence upon compliance with contractual rights constitutes
protected union activity. See Tel Data Corp., 315 NLRB 364, 378 (1994). Even though Boone’s
response indicated a willingness to pay whatever was necessary, the encounter confirmed that
employee Mathers would, as he had with Operations Manager Murray, exercise both his
representational and contractual rights.
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An inference of discriminatory motivation with regard to an adverse employment action
may be established without direct evidence. Fluor Daniel, Inc., 304 NLRB 970 (1991). Factors
that the Board has relied upon in finding discriminatory motivation include suspicious timing
(Electronic Data Systems Corp., 305 NLRB 219 (1991), shifting reasons given in defense and
false reasons given in defense (Adco Electric 307 NLRB 1113, 1128 (1992) and Associacion
Hospital Del Maestro, 291 NLRB 198, 204 (1988)).
Boone’s was aware that Murray had wanted to get rid of Mathers for about a month
which coincides with the meeting she had with Mathers shortly after July 22 when Mathers
stated his desire for union representation at any future discussion. The failure of Murray to state
to Mathers the reason that she claims he was discharged, laziness, is persuasive evidence that
alleged laziness was not the real reason. I have not credited the testimony of Murray that she
told Mathers that he was being laid off due to lack of work. That stated reason, lack of work,
constituted a shift in position from her initial testimony. Manager Mike Fisher, who oversaw the
electrical work performed by the employees, did not testify to any slowdown. Murray’s new
assertion, lack of work, was not substantiated by any documentary evidence. See Davey
Roofing, Inc., 341 NLRB 222, 223 (2004).
The only reason given to Mathers for his layoff was that the Respondent was “going in a
different direction” and that he was “one of the unlucky ones.” Mathers testified that Boone
made that statement to him as he was going to speak with Murray, and Boone did not deny
making that statement. Although Murray denied making that statement, I have not credited her
denial. No other employee was laid off. The reason given to Mathers was false. The reasons
stated at hearing, initially laziness on the part of Mathers and, thereafter, laziness and lack of
work were false. “Affirmative proof … that the reason given [for a termination] was false
warrants the inference that some other reason was being concealed.” N.L.R.B. v. Joseph Antell,
Inc., 358 F.2d 880, 883 (1st Cir. 1966). As in South Point Barge Co., 195 NLRB 925, 930
(1972), I find that the false reasons advanced by the Respondent were “advanced to screen
such true reason.” The Respondent was not going in a different direction and no other
employees were being laid off.
I find that the General Counsel has established that union activity was a substantial and
motivating factor for Respondent’s action. Manno Electric, 321 NLRB 278 (1996).
The Respondent has not established that Mathers would have been laid off in the
absence of his union activity. Mathers received no discipline during his entire tenure of
employment at the Company. Boone knew that Mathers had a sister in Hershey and
“wanted to spend some time” with her, and that he, Boone, “would not have had a
problem with that.” Boone’s willingness to have sent Mathers to Hershey knowing that he
wanted to visit his sister, an agenda with which he had no problem, detracts from his
claim that he had any issue with regard to alleged laziness on the part of Mathers.
Manager Fisher never spoke to Mathers about laziness. Boone admitted that Mathers was a
“very good electrician.” Employee John Griffis confirmed that Mathers’ “work ethic was good,”
and that Mathers “was a hard worker.”
Murray told Mathers that he was laid off because Respondent was “going in a different
direction,” a false reason. Even if I credited Murray’s testimony that she told Mathers that he
was laid off because of lack of work, that reason was false. The contention at the hearing that
Mathers was laid off for laziness is unsupported by credible evidence and false. When the
reason given for a respondent’s action is either false, or does not exist, the respondent has not
rebutted General Counsel’s prima facie case. Limestone Apparel Corp., 255 NLRB 722 (1981).
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I find that, “because of the false reason advanced for the termination … there was
another motive that the Respondent wished to conceal.” Pan American Electric, 321 NLRB 473,
476 (1996). I find that the Respondent laid off Mathers because of his union activities, his
announced intention to exercise his representational rights by having a union representative
present at any future conversation with Operations Manager Murray and concern that he would,
in the future, exercise his contractual rights regarding wage rates. Although the Respondent
called the termination a layoff, it was a discharge. By discharging Mathers because of his union
activities, the Respondent violated Section 8(a)(3) of the Act.
The denial of the trip to Hershey is relevant only if Mathers would have earned more in
Hershey than if he remained in Orlando. It would appear that, when Boone obtained the airline
tickets, he was aware that Murray was going to discharge Mathers on August 31. Boone
preferred to send employees who had experience working RV tradeshows, and employee Greg
Guenther had never worked an RV tradeshow. I find that, if Mathers had not been discharged,
Boone would have sent Swinson and Mathers with the other employees going to Hershey
instead of Swinson and Guenther. Insofar as Mathers was no longer employed in September,
the denial of that job assignment is subsumed in my finding of unlawful discharge and I shall,
therefore, recommend that the allegation of denial of a job assignment be dismissed.
C. The Discharge of Jason Driver
1. Facts
Jason Driver began working for the Company on January 3, 2005. He was sent out-of-
state several times, including the tradeshow in Hershey. He was also selected to go to the
Milwaukee tool tradeshow. Prior to leaving for Milwaukee, both Driver and employee John
Griffis contacted Local 606 regarding any requirements that the Milwaukee local might have.
They learned that Local 494 required employees to have an OSHA 10 card, a document
confirming that they had completed a 10 hour safety training course.
The Company, hearing rumors of employee concerns, contacted Bob Coppersmith, the
NECA representative in Florida who, by e-mail dated September 28, confirmed that the
employees needed the OSHA 10 card and that the Company should send by facsimile copy
(fax) the names and social security numbers of the employees who would be working in
Milwaukee. The e-mail also noted that the Company would have to pay a 3 per cent
assessment to Local 494. Nothing was mentioned regarding the rate of pay.
Upon arrival at the job site, Driver and Griffis went to Local 484, presented their
OSHA 10 cards and were sent to take a drug test. Murray, in Orlando, spoke by telephone
with a representative of Local 494, who advised that the rates in Milwaukee were “higher up
here and you must pay them.” Murray stated that the rates did not present a problem,
that the Company would pay “whatever it is that we have to pay.” She explained that the
Orlando payroll had already been made and that she was “not going to go back and
change the payroll at this point,” but would “ make a check for the… extra money that we
owe them.” The representative with whom she spoke stated that that would be “fine.”
Shortly thereafter, Local 494 sent its wage rates by fax to the Company. The rates were
significantly higher than the Local 606 rates in that the base rate in Orlando was $22.40 per
hour and the base rate in Milwaukee was $30.08 per hour. Murray did not state when the
Company was going to prepare the checks for the extra money.
There are multiple pages of testimony concerning what occurred in Milwaukee. A
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brief summary is sufficient insofar as the events relevant to this decision occurred on
October 11 and thereafter. After Driver and Griffis had checked in at Local 494 and
returned to the tradeshow, Boone asked what had occurred and Driver told him. Shortly
thereafter Business Agent Tim Hanson came to the job site and threatened to remove
Fisher and Swinson, who had not checked in with Local 494. Boone intervened, signed
the Local 494 contract, and agreed to accept two referrals from Local 494. Fisher
assigned Driver to oversee his “union brothers,” neither of whom was cooperative,
requesting four foot rather then two foot stepladders and otherwise complicating the set
up for the tradeshow. At some point, Driver simply opted out, sitting in a chair for at least
an hour or more, the length of time varying with the testimony of the witness.
At lunch on October 11, Driver received a telephone call from a friend, a former
employee of the Company, who informed him that he and Griffis were going to be
terminated when they returned to Orlando. If Griffis was concerned, he did not express it.
Driver, to use the vernacular, “lost it.” He called Local 494 and informed Business Agent
Hanson that he was quitting and complained that he had not been paid the proper wage.
Hanson replied that he would take care of it, that he would give “Murray 48 hours to pay
you; if not, we're going to go through a grievance process.” Driver said, “[O]kay.” He then
called the airline and changed his return date to October 12, paying the necessary fee.
Business Agent Hanson called Murray and told her, “Jason, you didn't pay him
right” and that he wanted verification. Murray explained that payroll was handled by a
company called PayChex, and Hanson requested that she send him a receipt from
PayChex. He followed up that call of October 11 on October 16 confirming that Driver
had been correctly paid. Murray denied receiving a call from Hanson in which he
identified Driver. I do not credit that testimony.
Following a conversation on a speaker telephone with supervisors Keith Hay and
Scott Martin and Operations Manager Murray in which Driver repeated that he was
quitting, Driver went to Boone’s office at the tradeshow and informed him that he was
going to be fired and had “had enough.” Boone commented that Driver had called the
Union, Local 494 “about the wage difference.” Driver acknowledged that he had done so,
and Boone stated, “[T]hat wasn't a good decision there.” The conversation deteriorated
with various statements being made, including a retracted threat by Boone not to pay for
Driver’s room. The conversation ended with Boone telling Driver to go back to his room and
make his decision, that, “I really don't want you to quit.”
Driver admits that, in addition to the stress of the Milwaukee situation, he was
experiencing personal problems. He returned to his room about 5 p.m., called his wife,
and decided that it was in his “best interest to stay with this Company.” At about 7 p.m.
he informed Boone that he had decided to “stay with the Company.” Boone replied that
he was glad that Driver “made that decision,” and told him that he would come by the
hotel and give him a ride to the airport in the morning. He did so. As Driver departed,
Boone stated, “See you to [at] work on Monday.”
Boone did not deny that he stated to Driver that he had not made a good decision by
protesting his pay to Local 494. He denied that he told Driver to return to the hotel to make a
decision, claiming that he only told him to “think about the decisions that he has made.” He
claims that he told Driver to “come see me in the office” on Monday. He denied that
Driver stated that he would “stay with the Company.”
Boone’s testimony that he told Driver to see him “in the office,” is contradicted not only
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by Driver, but also by the testimony of employee John Griffis who credibly testified that Boone
stated to him that neither he nor Driver were “going to get laid off, that everything was
worked out, … [t]hat Jason was going to fly back a day early, and … would be back to
work when we got back to Orlando, but we didn't need to worry about our jobs.” Griffis
testified that Boone told him that “Jason [Driver] had quit, but they had worked things
out, and that he was going to be back to work when we got back to Orlando.” Boone was
not at the office for three days after the employees returned from Milwaukee. If Boone
had told Driver to see him on Monday, he would have left instructions regarding Driver
and directed someone to speak with him if only to change the day they were to meet “in
the office”. No such instructions were given.
Consistent with his conversation with Boone, Driver reported to work on Monday,
October 13. Manager Fisher asked Driver what he was doing there, that he had quit.
Driver replied that he did not “know what you've heard, but you need to talk to Jamie
[Boone] about that one.” Supervisors Keith Hay and Scott Martin had placed Driver on the
work schedule and he worked on Monday, Tuesday, and Wednesday. On Thursday, October
18, Driver was setting up a tradeshow at a Doubletree hotel. Supervisor Keith Hay showed up
on the job and told him that Boone and Mike Fisher had been in the front office talking
about the job in Milwaukee, and “it wasn't good, that I … needed to go back to the shop
and defend myself and tell my side of the story.”
Supervisor Hay testified that rumors were flying “that there was going to be somebody
fired” and he told Driver, at the Doubletree, “to go to the shop and talk to Louise Murray.”
Driver went to Murray’s office and stated that it was “very uncomfortable,” that he
was hearing that he “might not work here much longer” and “wanted to know what was
going on.” Murray asked Driver to explain what happened in Milwaukee and he did so,
stating that he got stressed out, that he was put in charge of the two electricians from the
Milwaukee local, and that had received the call that he was “going to be fired” as soon as
he got back. Murray denied that she would “say anything like that.” Murray stated that
Driver had “filed a grievance against me through the hall.” Driver acknowledged that he
did talk to Business Agent Hanson about his pay, but did not file a grievance. Murray
stated that she was “thinking about … if I should keep you or if I'm going to get rid of
you,” that “in my mind you filed a grievance with me.” Driver protested that he did not.
Murray repeated, “in my mind you did. “ Murray noted that Driver had said that he was
going to quit and that “if she didn't get rid of me and anybody else found out that I had
done all these things and … I wasn't dealt with, then the next person who did it thought
that they could just get away with it. So, she was just going to have to let me go.” Driver
stated that, if that was her decision, then “just let's do that.” Murray said that, although
she was not prepared to do that today, that Driver needed to go home and get his
uniforms and she would have his layoff slip and last check when he returned. When he
returned, Driver saw that the layoff slip stated, "quit.” He protested that if she had given
him the slip on October 11 it would have been correct but that he and Boone had
discussed the situation and “I had a job, you know, for as long as I wanted it, everything
was taken care of.” Driver noted that he did not plan on drawing unemployment, but he
had not quit. Murray added the word “layoff” to the layoff slip.
Murray admitted that she was aware that Driver had been working, “not where I would
see him, but he was there somewhere.” Nevertheless, she did not call him in. On Thursday,
when Driver came to her office, Murray recalls that he asked what was going to happen to him,
that he was “very uncomfortable” because nobody would speak to him. She asked Driver to
relate what happened in Milwaukee, and Driver explained that he had received the telephone
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call stating that he was going to be fired when he returned, that he got mad and quit. Murray
questioned why he would take the word of someone who did not work for the Respondent, and
Driver replied that the report was given to him by his best friend and he believed him. Murray
asked what Driver thought she should do and claims that Driver answered that he knew what
she had to do and that she had “to let me go because it wouldn't be fair to all the other guys if
you kept me on here.” Murray stated that Driver had not “been re-employed, so I am going to
accept your resignation.” Murray acknowledges that, after returning his equipment, Driver
protested the “quit” on his termination slip and Murray agreed to add the word “layoff.” She
recalled that, in that portion of the conversation, Driver noted that he did not plan on drawing
unemployment, that he “had a job to go to the day I came back.”
Driver denied that he told Murray that he knew what she had to do which was to “let
me go” or that he stated that it “wouldn't be fair” to the other employees if she “kept me on
here.“ He also denied that he stated that he had a job to go to, explaining that he had to
have a layoff slip before he could sign the out of work book at Local 606, otherwise he
would be “double booking.”
Murray initially acknowledged that Driver told her that Boone had rehired him, and that
she responded that she “didn't know anything about Jamie [Boone] rehiring him. As far as I
was concerned, he had not been rehired.” She testified that the foregoing exchange
occurred when she asked him “what he was doing there.” Murray then altered that
testimony, stating, “I don't know that he said that Jamie [Boone] rehired him. I think he
said Jamie told him to come in on Monday morning and talk to him. … He [Driver] didn't
tell me he rehired him. He was going to come in and talk to him [Boone].” I credit Driver
that his rehiring by Boone was stated when he observed that Murray had placed “quit” on
the layoff slip.
Murray knew that Driver had been working since Monday but had not sought to speak
with him. Her contradictory testimony, initially acknowledging that Driver told her that Boone had
rehired him but then asserting that Driver did not tell her that he had been rehired, is not
credible. Murray claims that she told Driver that he had not “been re-employed, so I am going to
accept your resignation.” If, as claimed by Murray, Driver stated that it would be unfair for him to
continue to be employed, there would have been no reason to claim that he had not been re-
employed. Driver had been working all week. I credit Driver regarding the conversation with
Murray in which he was terminated.
I find that Driver, who Boone had permitted to continue working, did not acquiesce in his
termination. Insofar as he had dealt directly with President Boone, there was no reason for him
to have had a concern for perceived fairness relative to his fellow employees. It is obvious that
he did not have another job to come back to because he worked for the Company from Monday
until he was terminated on Thursday.
Any claim that Driver voluntarily agreed to his termination is belied by his
contemporaneous protest, on October 18, in a written statement to Local 606 in which Driver
reported that Murray stated that "she was going to have to let me go.” No grievance was filed.
As already noted, the Respondent, following the advice of Business Agent Brown, does not
discharge employees because it appears that Local 606 does not grieve layoffs.
2. Analysis and Concluding Findings
The complaint alleges, and the General Counsel argues, that Driver was discharged
because of his union activity.
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The Respondent argues that Driver’s testimony was not credible and that there is no
evidence that Driver engaged in any union activity other than that engaged in by employee
Griffis who was not discharged. Contrary to that argument, I have credited the testimony of
Business Agent Hanson that he called Murray and identified “Jason,” i.e. Driver, as having
complained about his pay and of Driver that Murray stated to him that he had “filed a
grievance against me through the hall.” Griffis filed no grievance. The Respondent further
argues that Driver, on October 18, tendered his resignation to Murray and that the Respondent
accepted his resignation. I have not credited the testimony of Murray. Driver did not resign.
Consistent with the analytical framework of Wright Line, supra, I find that Driver
engaged in union activity, seeking his contractual rate of pay, and that the Respondent was
aware of that activity as established by the call from Business Agent Hanson to Operations
Manager Murray on October 11. I find that the Respondent bore animus towards that activity as
established by Murray’s statement to Driver that he had filed a grievance against her and, when
Driver denied that a grievance had actually been filed, by her informing him that “in my mind
you filed a grievance with me.” The termination of Driver was an adverse action affecting
his employment. The General Counsel established a prima facie case.
The Respondent has not established that Driver would have been discharged in
the absence of his perceived grievance filing activity. The Respondent, by Boone, from a
personal standpoint, forgave Driver for his conduct in Milwaukee. From a legal standpoint
the Respondent condoned his behavior. The doctrine of condonation “prohibits an
employer from misleadingly agreeing to return its employees to work and then taking
disciplinary action for something apparently forgiven.” United Parcel Service, 301 NLRB 1142.
1143 (1991). See also South Point Barge Co., supra at 929, in which the employer
condoned the quitting of an employee by rehiring him.
Driver informed Boone that he had decided that it was in his “best interest to stay
with this Company.” Boone replied that he was glad that Driver “made that decision,” and
told him that he would give him a ride to the airport in the morning. As Driver departed,
Boone stated, “See you to [at] work on Monday.” Employee John Griffis confirmed that,
although Driver quit, Boone told him that “they had worked things out, and that he was
going to be back to work when we got back to Orlando.”
On October 11, Boone told Driver the he had not made a good decision when he
protested to Local 494 regarding his pay. That comment proved to be prophetic. When
terminating Driver, Murray referred to his filing a grievance and, when he protested that no
grievance had been filed, stated that “in my mind“ he had done so. Her statement that Driver
had “done all these things” and that, if he “wasn't dealt with, then the next person who did
it thought that they could just get away with it,” ignores the fact that Boone either rehired
Driver or overlooked his statement that he was quitting. In either circumstance, the
Respondent condoned his behavior. The “things” to which Murray referred, Driver’s
conduct in Milwaukee, including his protest regarding his pay, were condoned. Thus,
there was no reason for termination other than Murray’s belief that Driver had filed a
grievance against her, protected conduct that had also been condoned.
As already pointed out, notwithstanding an overall cooperative relationship with the
union that represents its employees, an employer may harbor animus related to grievance filing
activity. New Orleans Cold Storage Co., supra, 1471 at fn. 1. Although Murray’s statement to
Driver regarding his filing of a grievance against her does affirmatively state her motivation for
the action that she took and establishes animus towards grievance filing activity, it did not
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threaten discharge. I shall recommend that the allegation of a threat of discharge for filing
grievances be dismissed.
The credited evidence establishes that Boone accepted Driver’s retraction of his “quit.”
The Respondent had him represent the Respondent by assigning him to work outside the shop
on October 15, 16, 17, and 18. The termination, although called a layoff, was a discharge. The
only basis for the discharge other than Driver’s conduct on the job in Milwaukee and his quitting
in Milwaukee, conduct that the Respondent had condoned, was that Murray perceived that
Driver had filed a grievance against her. The absence of involvement by Boone in the discharge
of Driver on October 18 is inexplicable.
The Respondent has not established that it would have discharged Driver in the
absence of his perceived grievance filing activity. Although Driver had not actually filed a
grievance, Murray, in her mind, believed that he had done so. A respondent's belief that
protected activity has occurred is controlling. Henning and Cheadle, 212 NLRB 776, 777 (1974).
Discharging employees because they file grievances violates the Act. New Orleans Cold
Storage Co., supra. I find that the Respondent, by discharging Driver for engaging in union
grievance filing activity, violated Section 8(a)(3) of the Act.
Conclusions of Law
By laying off/discharging Michael D. Mathers and Jason Driver because of their union
activities, the Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily laid off/discharged Michael D. Mathers and
Jason Driver, it must offer them reinstatement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from August 31, 2007, in the case of Mathers
and from October 18, 2007 in the case of Driver, to date of proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The General Counsel, in his brief, seeks compound interest upon any backpay due. The
Board has recently reaffirmed its determination not to deviate from its current practice of
awarding simple interest. Glen Rock Ham, 352 NLRB No. 69, slip op. 1 fn. (2008). Consistent
with that decision, I deny the request for compound interest.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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ORDER
The Respondent, Edlen Electrical Exhibition Services, Inc., of Orlando, Orlando, Florida,
its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating against any employee because of
that employee’s membership in or activities on behalf of International Brotherhood of Electrical
Workers and any of its constituent local unions or any other labor organization.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer Michael D. Mathers and Jason
Driver full reinstatement to their former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
(b) Make whole Michael D. Mathers and Jason Driver for any loss of earnings and other
benefits suffered as a result of the discrimination against them, in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful layoffs, and within 3 days thereafter, notify Michael D. Mathers and Jason Driver in
writing that this has been done and that the layoffs will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to determine the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facilities in Orlando, Florida,
copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by
the Regional Director for Region 12, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent 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,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice

4 If this Order is enforced by a Judgment of the 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.”
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to all current employees and former employees employed by the Respondent at any time since
August 31, 2007.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., August 8, 2008.
_____________________
George Carson II
Administrative Law Judge
JD(ATL)–29–08
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 had found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge, lay off, or otherwise discriminate against any of you because of your
membership in or activities on behalf of International Brotherhood of Electrical Workers and any
of its constituent local unions or any other labor organization.
WE WILL, within 14 days from the date of the Board’s Order, offer Michael D. Mathers and
Jason Driver full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them, in the manner set forth in
the remedy section of the decision.
WE WILL, within 14 days of the Board’s Order, remove from our files any reference to the
unlawful discharges/layoffs of Michael D. Mathers and Jason Driver and within 3 days thereafter
notify them in writing that this has been done and that the discharges/layoffs will not be used
against them in any way.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
EDLEN ELECTRICAL EXHIBITION SERVICES,
INC., OF ORLANDO
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
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2
201 E. Kennedy Blvd., South Trust Plaza, Suite 530,
Tampa, FL 33602–5824, (813) 228–2641,
Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (813) 228–2455