E.L.C. Electric, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1200 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 144
1200
E.L.C. Electric, Inc. and International Brotherhood
of Electrical Workers, AFL–CIO and All Trades
Staffing, Inc.
E.L.C. Electric, Inc. and International Brotherhood
of Electrical Workers, Local Union No. 481, a/w
International Brotherhood of Electrical Work-
ers, AFL–CIO. Cases 25–CA–28270–1, 25–CA–
28270–2, 25–CA–28283–1 Amended, 25–CA–
28283–2 Amended, 25–CA–28283–4 Amended,
25–CA–28398–1 Amended, 25–CA–28567, 25–
CA–28582, 25–CA–28637 Amended, 25–CA–
28397–1 Amended, 25–CA–28406, 25–CA–28532
Amended, and 25–RC–10131
July 29, 2005
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
An election was held September 26, 2002,1 in a unit of
electricians employed by the Respondent, E.L.C. Elec-
tric, Inc.2 The Union lost the election. It filed objec-
tions, alleging that the Respondent interfered with the
election by ordering employees not to discuss the Union,
providing pay raises to two employees during the critical
period, offering to improve the employees’ health insur-
ance, and failing to post the Board election notices at its
individual jobsites. Pursuant to charges filed by the Un-
ion, the General Counsel issued a complaint, alleging
that the Respondent had violated Section 8(a)(1) and (3)
of the Act in numerous respects prior to and after the
election.
On April 7, 2004, Administrative Law Judge Ira San-
dron issued the attached decision. The judge sustained
the Union’s objections regarding the order not to discuss
the Union, pay raises, and failure to post election notices,

1 Unless otherwise specified, all dates refer to 2002.
2 The election was conducted pursuant to a Stipulated Election
Agreement in the following appropriate unit:
All Journeyman Electricians, Apprentice Electricians, Service
Technicians, and Electricians Helpers engaged in electrical con-
struction work in Bartholomew, Boone, Decatur, Hamilton, Han-
cock, Hendricks, Jennings, Johnson, Madison, Marion, Mont-
gomery, Morgan, Putnam, Ripley, Rush and Shelby Counties em-
ployed by the Respondent; BUT EXCLUDING all managers, all
warehouse employees, all delivery drivers, all sound and commu-
nication workers, all telecommunications technicians, all trench-
ing equipment operators, all part-time help, all office clerical em-
ployees, all professional employees, and all guards and supervi-
sors as defined in the Act.
The tally of ballots shows 11 for and 13 against the Petitioner with 6
challenged ballots. The judge sustained all six challenges, and no party
has excepted. Accordingly, the challenged ballots cannot affect the
results of the election.
but overruled the objection concerning the alleged prom-
ise of benefits. He also found that the Respondent com-
mitted many, but not all, of the alleged 8(a)(1) and (3)
violations. The Respondent filed exceptions and sup-
porting argument, and the General Counsel filed an an-
swering brief. The Union filed cross-exceptions, a sup-
porting brief, and an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings3 and conclusions as modified, to adopt the recom-
mended Order as modified, and to adopt the judge’s rec-
ommendation that the election be set aside and a new
election held.4
For the reasons discussed below, we agree with the
judge that the pay raises were objectionable. Unlike the
judge, however, we also find that the Respondent inter-
fered with the election and violated Section 8(a)(1) by
impliedly promising to improve health insurance bene-
fits.

3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all of the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
For the reasons fully set forth in the judge’s decision, we affirm his
findings that the Respondent violated Sec. 8(a)(1) by telling an em-
ployee that it would try to keep its “loyal employees” in the face of
upcoming layoffs and by on two occasions telling an applicant for
employment that the Union was responsible for his not being able to
obtain regular employment. We also affirm the judge’s finding that the
Respondent violated Sec. 8(a)(3) by laying off three employees and
then the rest of the bargaining unit because of their union activities.
There are no exceptions to the judge’s dismissal of allegations that
the Respondent violated Sec. 8(a)(1) by telling an employee to com-
plete a health insurance form, by creating an impression of surveillance,
by its work assignment of union activists, and by interrogating an em-
ployee about his union affiliation; and violated Sec. 8(a)(3) by taking
away an employee’s gang box key and telling him to complete an in-
surance form, and denying reassignment of a laid-off employee to other
work. There are no exceptions to the judge’s sustaining of the Union’s
objection regarding the order not to discuss the Union. Nor are there
exceptions to the judge’s findings that the Respondent violated Sec.
8(a)(1) by promulgating and maintaining a rule against discussing the
Union on worktime, threatening a union activist with physical violence
and other retaliation, isolating two union activists, soliciting a union
activist to quit his employment, interrogating employees Adair and
Grunde about the Union, and telling an employee that it was laying off
employees because of problems with the Union; and violated Sec.
8(a)(3) by assigning two union activists more onerous work and isolat-
ing them and issuing a written warning to the Union’s election observer
immediately after the election.
4 We have added a Direction of Second Election to the judge’s Or-
der. [Omitted from publication.]
E.L.C. ELECTRIC, INC. 1201
Implied Promise of Benefits
In mid-September, the Respondent’s vice president for
operations, Kevin Passman, and its general superinten-
dent, Mike Swalley, addressed the employees at a man-
datory meeting at one of its jobsites. During this meet-
ing, they encouraged the employees not to vote for repre-
sentation by the Union. After addressing the employees,
Passman called for questions, and one employee asked if
the Respondent was going to try to get better health in-
surance. Passman replied that the Respondent was ac-
tively seeking to improve employee health insurance
benefits by the end of the year, but made no explicit
promise of improvements.
In overruling the Union’s objection, the judge cited
LRM Packaging, 308 NLRB 829 (1992). He reasoned
that Passman’s comment did not constitute a promise of
benefits because it did not expressly or implicitly associ-
ate an increase in the employees’ benefits with their re-
jection of the Union in the upcoming election. He noted
that the subject of health insurance was not addressed in
Passman’s presentation and was only raised by the em-
ployee question which Passman then answered. The
judge also noted that the Respondent was required to
change its insurance carrier by January 1, 2003, as a re-
sult of the settlement of a lawsuit. Contrary to the judge
and our dissenting colleague, we agree with the Union
that Passman’s statement was an implied promise of im-
proved benefits to the Respondent’s employees.5
The Board will infer that benefits granted or promised
during the “critical period”6 prior to a representation
election interfere with the employees’ free choice. The
employer may rebut this inference by providing a persua-
sive explanation, other than the pending election, for the
timing of the grant or promise of benefits. Dyncorp, 343
NLRB No. 124, slip op. at 2 (2004); B & D Plastics, Inc.,
302 NLRB 245 (1991). As the Supreme Court has aptly
put it, “Employees are not likely to miss the inference
that the source of benefits now conferred is also the
source from which future benefits must flow and which
may dry up if it is not obliged.” NLRB v. Exchange
Parts Co., 375 U.S. 405, 409 (1964). An employer’s
promise or grant of benefits during an election campaign
also violates Section 8(a)(1). Id.; Dyncorp, supra, 343
NLRB No. 124, slip op. at 2.7 To be objectionable and

5 The Union also excepted to the judge’s failure to find that this
statement violated Sec. 8(a)(1).
6 The critical period commences at the filing of the representation
petition and extends through the election. Ideal Electric Mfg. Co., 134
NLRB 1275 (1961). The petition in this case was filed on July 29, and
the election was held on September 26.
7 The Board applies the same test to analyze promises and grants of
benefits in both representation and unfair labor practice cases. Niblock
unlawful, a promise of benefits need not be explicit. See,
e.g., County Window Cleaning Co., 328 NLRB 190, 196
(1999).
Applying these principles, we find that Passman’s
statement that the Respondent was actively seeking to
improve employee health insurance benefits was unlaw-
ful and objectionable. First, the statement was an im-
plied promise to improve benefits. County Window
Cleaning Co., supra, 328 NLRB at 196 (employer’s
statement, inter alia, that “he was looking into insurance
for the employees” constitutes an implied promise of
benefits in context). Second, Passman made the state-
ment during the critical period. Third, contrary to the
judge, we find that the employees would reasonably have
interpreted Passman’s remarks as predicating the im-
provement of their health benefits on their rejection of
union representation. Passman made the statement at the
end of an antiunion speech at a mandatory employee
meeting, and in the context of numerous other unfair
labor practices. Passman did not refer in his speech to
the settlement agreement that compelled the Respondent
to change insurance carriers; indeed, the Respondent had
never before mentioned the prospect of new health insur-
ance benefits to its employees. Thus, the possibility of
improved health benefits was broached entirely in the
context of the Respondent’s opposition to the Union.
Consequently, the employees would reasonably tie the
prospect of improved health benefits not to a settlement
agreement of which they had no knowledge, but to re-
jecting the Union, which the Respondent was urging
them to do then and there. Finally, the Respondent has
offered no plausible reason for making this announce-
ment during the critical period. B & D Plastics, supra,
302 NLRB at 245.8
We find LRM Packaging, supra, on which the judge
relied, distinguishable.9 There, the Board found that the

Excavating, Inc., 337 NLRB 53, 53–54 fn. 5 (2001), enfd. 59
Fed.Appx. 882 (7th Cir. 2003).
8 We also disagree with the dissent’s conclusion that the employer’s
statement was an “innocent casual remark” merely because it was given
as a response to an employee’s question. The fact that the statement in
question was made in response to an employee question does not render
it proper. The Board has held that: “It is clear that, under Section 8(c),
an employer may lawfully furnish accurate information, especially in
response to employees’ questions, if it does so without making threats
or promises of benefits.” Lee Lumber & Building Material, 306 NLRB
408, 409 (1992) (emphasis added), remanded on other grounds 117
F.3d 1454 (D.C. Cir. 1997). Accordingly, an employer is entitled to
answer a question raised by an employee, but cannot do so in a way
that indicates it would do more for employees if they remained unrep-
resented. Angelica Corp., 276 NLRB 617, 623 (1985).
9 We disagree with the dissent’s attempt to distinguish this case from
County Window, supra. As discussed below, the delivery of this remark
in the course of an antiunion speech given during the critical period
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1202
employer did not violate Section 8(a)(1) when its presi-
dent stated at a preelection meeting that he would give
employees a medical plan and a wage raise when the
employer could afford it. The Board found that the state-
ment only expressed the employer’s hope that it would
be in a position at some unspecified time in the future to
improve the employees’ working conditions. Signifi-
cantly, the employer had made a similar promise to em-
ployees, and actually set into motion a grant of benefits,
months before the union organizing campaign began.
Under those circumstances, the promised improvements
in LRM Packaging were not associated with the employ-
ees’ rejection of the union. 308 NLRB at 829. Here, in
contrast, the Respondent had not promised, let alone “set
in motion,” an improvement in health insurance benefits
before the onset of the union organizing campaign. In-
deed, the Respondent did not even begin to seek price
quotes for a new plan until a month after Passman made
his remarks.
Accordingly, we reverse the judge and find that Pass-
man’s statement constituted an unlawful promise of
benefits that interfered with the employees’ free choice
in the election. We also find that the statement violated
Section 8(a)(1) of the Act.
Grant of Pay Raises
The judge found that the Respondent granted pay
raises to employees Mikalis Grunde and DeMarco
Thacker shortly before the election in order to influence
their votes, and that the pay increases constituted an ad-
ditional ground for setting aside the election. For the
reasons discussed below, we agree with the judge.
The Respondent hired Grunde and Thacker as appren-
tices and encouraged them to enroll in an apprenticeship
program, which they did in June and July. (Classes in
the program started around August 9.) On September 11
and 18, respectively, the Respondent notified Grunde and
Thacker that they would receive a wage increase to $11
per hour retroactive to September 9. Because the pay
raises were granted during the critical period, an infer-
ence arises that they were coercive. B & D Plastics, su-
pra, 302 NLRB at 245.
The burden thus shifted to the Respondent to come
forward with a persuasive explanation, other than the
pending election, for the timing of its action. Id. The
judge found that the Respondent had failed to carry that
burden. He observed that the Respondent’s policy hand-
book did not indicate that an employee would receive a
pay raise based on joining an apprenticeship program,
and that the Respondent submitted no written evidence

reasonably would tend to cause the employees to associate improved
health benefits with the rejection of the union.
that it had a policy of giving pay raises for this reason or
that it had done so in the past. Based on these circum-
stances, as well as the Respondent’s numerous unfair
labor practices, the judge concluded that the Respondent
had not rebutted the inference that pay raises granted
during the critical period were intended to influence the
employees’ votes.
In exceptions, the Respondent argues that Grunde tes-
tified that he was told at his job interview that he would
receive a pay increase if he participated in the appren-
ticeship program. This testimony was consistent with the
testimony of General Superintendent Mike Swalley that
the Respondent routinely gave such increases when em-
ployees entered apprenticeship.
We reject this argument. To begin with, even if
Grunde was promised a raise upon entering the appren-
ticeship program, there is no evidence that any such
promise was made to Thacker. Indeed, Thacker testified
that he did not recall being told by the Respondent’s rep-
resentatives that he would receive a raise once he en-
rolled in the apprenticeship program and that, to his
knowledge, he was not scheduled to receive one.
Moreover, there is no record evidence to explain why
the Respondent granted the raises when it did, i.e., well
after Grunde and Thacker started the apprenticeship pro-
gram and right before the election. Grunde was inden-
tured on July 9, and Thacker on July 29, and neither re-
ceived a raise at that time. Apprenticeship classes com-
menced around August 9, yet neither employee received
a raise then either. Not until mid-September—only a
week or two before the September 26 election—did the
Respondent inform Grunde and Thacker that their pay
was being increased. There is no evidence of any event
other than the pending election that might have triggered
the announcement at that time. In sum, the Respondent’s
rebuttal evidence does not explain the long delay be-
tween the employees’ enrollment in the apprenticeship
program and the conferral of the pay raises shortly before
the election.10
Given the Respondent’s failure to explain the timing of
the pay raises, the absence of any written policy or any
written evidence of a practice of raising the wages of
apprentices, and the Respondent’s commission of nu-
merous unfair labor practices in September, we agree
with the judge that the Respondent has failed to rebut the
inference that the reason for granting the pay raises to
Grunde and Thacker during the critical period was to
influence their votes. Accordingly, the pay increases

10 Further, the Respondent gave the raises retroactive effect only to
early September—and not to the date of enrollment or the start of
classes, as the logic of the Respondent’s explanation would seem to
dictate.
E.L.C. ELECTRIC, INC. 1203
constitute objectionable behavior requiring that the elec-
tion be set aside.11
Other Allegedly Objectionable Conduct
The Union notes that the Respondent told employees
they could not discuss the Union on company time, that
the judge found this to be objectionable conduct, and that
the Respondent did not except to this finding. In the ab-
sence of exceptions to the judge’s finding of objection-
able conduct, we adopt the finding pro forma. The Un-
ion suggests that, in light of this unexcepted-to finding of
objectionable conduct, the Board should overturn the
election on the basis of this objectionable conduct with-
out considering the other allegations of objectionable
conduct. We do not adopt the Union’s suggestion and
rely upon all of the objectionable conduct in overturning
the election.
Finally, as noted above, the judge found that the Re-
spondent’s interrogation of employee Ben Adair violated
Section 8(a)(1) and there were no exceptions to this find-
ing. The Union’s objections did not refer to the interro-
gation and the judge did not address the issue of whether
the interrogation constituted objectionable conduct. The
Union here contends that the interrogation fell within the
“catchall” language (“[b]y these and other acts”) of its
final objection and that the Board should set the election
aside on this basis as well. Although administrative law
judges and regional directors have the authority to set
aside elections based on conduct other than that specified
in objections, we find that the circumstances of this case
do not warrant this action. Since we are already relying
on three other grounds in setting aside this election, we
find it unnecessary to reach beyond the specific conduct
cited in the Union’s objections.12
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, E.L.C.
Electric, Inc., Indianapolis, Indiana, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 1(p) and reletter
the subsequent paragraph:

11 Although only two employees were directly affected by the pay
raises, the Union lost the election by only two votes. Clearly, the Re-
spondent’s action could have affected the election results.
12 The Respondent excepts to the judge’s finding that its failure to
properly post the Board’s election notices at individual jobsites justified
setting aside the election. We also find it unnecessary to rely on the
judge’s finding in this regard because we are already setting aside the
election on other grounds. Chairman Battista finds that the evidence
does not prove the Respondent failed to properly post the election no-
tice.
“(p) Promising its employees improved health benefits
in order to persuade them to abandon their support for
the Union.”
2. Substitute the following for the final paragraph:
“IT IS FURTHER ORDERED that Case 25–RC–10131 is
severed from the consolidated complaint cases, that the
election conducted therein is set aside, and that Case 25–
RC–10131 is remanded to the Regional Director for Re-
gion 25 to conduct a second election.” [Direction of Sec-
ond Election omitted from publication.]
3. Substitute the attached notice for that of the admin-
istrative law judge.
MEMBER SCHAUMBER, dissenting in part.
Unlike my colleagues, I agree with the judge and
would find that Kevin Passman’s mid-September answer
to an employee’s question about health insurance was
neither objectionable nor unlawful. As the judge pointed
out, the complaint did not allege that anything Passman
said in his prepared comments about the election was
unlawful, and the Union did not contend that those com-
ments interfered with the election in any way. Nor, in
response to the employee’s question, did Passman prom-
ise health insurance benefits. He said only that the Re-
spondent was actively seeking to improve those benefits
by the end of the year. Thus, Passman, after making
some prepared comments during which he never men-
tioned benefits, responded spontaneously and truthfully
to an employee’s question, without making any promises
or threats and without making any reference to the Union
or to the employee’s attitude toward it. In these circum-
stances, I regard Passman’s response to the employee’s
question as an uncoercive; indeed, an innocent casual
remark.
County Window Cleaning Co., supra, relied on by my
colleagues, is factually quite distinguishable. There, An-
thony Silvestri, the respondent’s president, sole share-
holder, and chief operating officer, had a conversation
with three employees. At the time, Silvestri had unlaw-
fully terminated one of them the day before and the other
two immediately quit in protest. The three reported for
work the next day on the union’s instructions and asked
Silvestri if he had any work for them. Silvestri said he
did, but it would have to be without the union because he
could not afford to join the union. The employees re-
sponded that they wanted to continue with the union to
get better benefits. In response, Silvestri said that if it as
just a few dollars more or 50 cents per hour, they could
sit down and talk adding that he was also looking into
insurance for the employees. He then urged them to
think about their decision “really well.” In addition to
unlawfully conditioning employment of the three em-
ployees upon their abandonment of the union, the re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1204
spondent was found to have unlawfully promised the
employees benefits if they withdrew their support for the
union. Passman’s response to the employee’s question in
the case under review is hardly comparable to the clear
and specific implied promise of benefits made by Silves-
tri. I would, accordingly, dismiss the allegation.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT promulgate and maintain a rule prohibit-
ing employees from discussing or soliciting on behalf of
the International Brotherhood of Electrical Workers, Lo-
cal Union No. 481 (the Union).
WE WILL NOT suggest physical violence against em-
ployees because they support the Union.
WE WILL NOT denigrate employees because they sup-
port the Union.
WE WILL NOT instruct employees not to discuss the
Union with other employees.
WE WILL NOT isolate employees from other employees
because of their support for the Union.
WE WILL NOT solicit employees to quit employment
because they support the Union.
WE WILL NOT create the impression among employees
that their union activities are under surveillance.
WE WILL NOT interrogate employees concerning their
union activities and sympathies.
WE WILL NOT promise our employees improved health
benefits in order to persuade them to abandon their sup-
port for the Union.
WE WILL NOT tell employees they will be laid off be-
cause of their union activities.
WE WILL NOT tell prospective employees they cannot
be hired because our employees engaged in union activ-
ity.
WE WILL NOT tell employees they are being laid off
and will be required to work through a labor provider
because they engaged in union activity.
WE WILL NOT assign more onerous working conditions
to employees because of their union activities.
WE WILL NOT issue written warnings to employees be-
cause of their union activities.
WE WILL NOT lay off employees because of their union
activities.
WE WILL NOT require employees to apply for employ-
ment through a labor provider.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Mikalis Grunde, Bruce Sanderson, Jonathan
Trinosky, and those employees laid off on March 14,
2003, 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.
WE WILL make Mikalis Grunde, Bruce Sanderson,
Jonathan Trinosky, and those employees laid off on
March 14, 2003, whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs of Mikalis Grunde, Bruce Sanderson, Jona-
than Trinosky, and those employees laid off on March
14, 2003, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and the
layoffs will not be used in any way against them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful written warning issued to DeMarco Thacker on Sep-
tember 26, 2002, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the
warning will not be used in any way against him.
WE WILL reinstitute our practice of employing electri-
cal employees as it existed prior to March 14, 2003.
E.L.C. ELECTRIC, INC.
Derek A. Johnson and Rebekah Ramirez, Esqs., for the General
Counsel.
Michael L. Einterz, Esq. (Einterz & Einterz), of Indianapolis,
Indiana, for the Respondent/Employer.
Neil E. Gath, Esq. (Fillenwarth, Dennerline, Groth, & Towe),
of Indianapolis, Indiana, for the Charging Party/Petitioner.
E.L.C. ELECTRIC, INC. 1205
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This matter arises
out of the following related unfair labor practice and represen-
tation proceedings.
1. An order consolidating cases, consolidated complaint and
notice of hearing issued on June 19, 2003,1 and an amendment
to consolidated complaint issued on August 8 (collectively, the
complaint), against E.L.C. Electric, Inc. (ELC or the Respon-
dent), based on charges filed by International Brotherhood of
Electrical Workers, AFL–CIO and International Brotherhood of
Electrical Workers, Local Union No. 481 (collectively, the
Union).
2. A report on challenged ballots and objections, order con-
solidating cases, order directing hearing, and notice of hearing
issued on December 23, 2002, following a petition filed on July
29 and an election held on September 26, in the following unit
of employees stipulated to be appropriate: journeyman electri-
cians, apprentice electricians, service technicians and electrical
helpers engaged in electrical construction work in [named Indi-
ana counties], excluding managers, warehouse employees, de-
livery drivers, sound and communication workers, telecommu-
nications technicians, trenching equipment operators, part-time
help, office clerical employees, professional employees, and
guards and supervisors as defined in the National Labor Rela-
tions Act (the Act).
Pursuant to notice, I conducted a trial in Indianapolis, Indi-
ana, on August 20 to 22, and November 4 and 5, 2003, during
which all parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evi-
dence. I have duly considered the helpful posthearing briefs
that were filed.2
Issues
1. Whether prior to the election, commencing in July 2002,
ELC committed various independent violations of Section
8(a)(1) of the Act and discriminated against employees Jason
Dunn, Brad Krebbs, and Corey Leineweber in assignments or
conditions of employment, in violation of Section 8(a)(3) and
(1).
2. Whether Dunn, Krebbs, Leineweber, George Nichols, and
Robert Nichols in July 2002 went out on an unfair labor prac-
tice strike and should have their challenged ballots counted.
3. Whether ELC’s unfair labor practices and other conduct
warrant setting aside the election. The Union argues that, in
addition to conduct alleged in the complaint, ELC gave pay
raises to Mikalis Grunde and DeMarco Thacker in September
2002, and failed to properly post election notices at jobsites
where employees worked.
4. Whether following the election, ELC engaged in further
independent violations of Section 8(a)(1), and violated Section

1 Because the operative dates occurred about equally in 2002 and
2003, specific mention of the year will be omitted when made clear
from the context.
2 The General Counsel’s unopposed motion to correct transcript (GC
Br. at p. 2) is granted.
8(a)(3) and (1) by issuing Thacker warnings and not assigning
him work in September 2002, and by laying off Bruce Sander-
son on January 9; Jonathan Trinosky on February 5; and
Grunde on February 17, 2003.
5. Whether ELC violated Section 8(a)(3) and (1) by laying
off all remaining electrical employees on March 14, 2003, and
the following week, utilizing them as employees of labor pro-
viders to perform unit work (the transition).
Facts
Based on the entire record, including the pleadings, testi-
mony of witnesses and my observations of their demeanor,
documents, and stipulations of the parties, I make the following
findings of fact.
Witnesses included:
1. All of the above-named employees, with the exception of
George Nichols; and Benjamin Adair, an employee of ELC
until March 14 and then of All Trades Staffing, Inc. (All
Trades).
2. Steven Dunbar, union organizer.
3. Greg Maier, vice president of All Trades; Stephen Wise,
president of National Construction Workforce (National); and
Jerry Tucker, an employee of All Trades assigned to work for
ELC both before and after the transition.
4. Edward Calvert, ELC’s president and sole owner; Kevin
Passman, vice president of operations and overseer of day-to-
day operations, who is in charge of purchasing materials and
estimating jobs; Mike Swalley, general superintendent, who is
in charge of field activities, including labor, and has had pri-
mary responsibility for handling layoffs; and Supervisors James
Corbly and Walter Freese.
The title of jobsite supervisors has varied, but their basic du-
ties and responsibilities have remained the same at all times
material. For ease of reference, the term “supervisor,” will be
used throughout this decision. The Respondent concedes their
status as agents of ELC and statutory supervisors within the
meaning of Section 2(11) of the Act.3
Supervisor Christine Patterson a/k/a Christine Rossittis was
not called to testify by the Respondent, and no explanation was
offered for her nonappearance. Therefore, I draw an adverse
inference from its failure to call her as a witness. In any event,
statements attributed to her by various witnesses of the General
Counsel went unrebutted. The Union challenged her ballot at
the election. Inasmuch as the Respondent now agrees that she
has been a statutory supervisor at all times relevant,4 and the
record reflects such status, I sustain the challenge to her ballot.
On the other hand, neither the General Counsel nor the Un-
ion called George Nichols, who was the only witness who
could provide direct evidence of the circumstances surrounding
his termination of employment at ELC. In the absence of such
testimony, and the Respondent’s concomitant lack of opportu-
nity to cross-examine him, I decline to find that he engaged in a
strike.
ELC, a corporation, with an office and place of business in
Indianapolis, Indiana, is engaged as an electrical contractor in

3 Tr. 33.
4 Tr. 892.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1206
the construction industry and is a member of the Associated
Building Contractors of Indiana (ABC). Its status as an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act is not in dispute, nor is the Union’s
status as a labor organization within the meaning of Section
2(5) of the Act.
I. EVENTS PRIOR TO THE ELECTION
A. The Union’s Organizational Efforts
Prior to the Union’s organizing campaign, ELC became em-
broiled in a dispute with the Indiana Department of Labor, for
allegedly not paying proper fringe benefits on common wage
projects, and Calvert evidently placed blame on the Union.
Thus, Calvert sent a letter dated June 10, 2002, to all employ-
ees,5 decrying the department “for their vicious, defamatory,
and harmful actions taken against our company,” and accusing
the department of being “pushed by their friends at IBEW.”
The closing paragraph concluded:
They are trying to force us out of business, causing you to
lose your job. If they succeed against ELC, they will then
move on to the next non-union contractor and begin again
with the same tactics. Maybe you will be working for this
company then. Where does it end? IT ENDS NOW! Stand
with me and fight against these corrupt and evil people who
want to run our lives. [Emphasis in original.]
Dunbar began organizing efforts among ELC’s employees in
July 2002. On July 8, Krebbs agreed to be chairman of the
organizing committee, and Dunbar sent a letter to the Respon-
dent by telefax and certified mail.6 Krebbs received a shirt with
the union logo,7 which he wore the following morning to work.
From July 11 through 16 or 17, Dunbar engaged in passing out
handbills and other literature to employees at the Wal-Mart
super store, Columbus, Indiana (Wal-Mart). A number of em-
ployees subsequently called him in response.
On about July 15, Dunbar met with Dunn and Leineweber,
who agreed to be on the Union’s organizing committee. Dun-
bar notified ELC of this by a letter dated July 15 as to Dunn
and July 17 as to Leineweber, each sent by both telefax and
certified mail.8
B. Alleged Violations of Section 8(a)(1) and (3)
Prior to the Strike
The General Counsel contends that on about July 8, 2002,
the Respondent changed the working conditions of Krebbs by
taking away his assigned key, and on about July 8 and 10, as-
signed him more onerous working conditions, to wit, demand-
ing he turn in health insurance papers and assigning him work
that he could not complete in the time given. These allegations
involve Swalley and Corbly.

5 GC Exh. 2.
6 GC Exh. 24. The fax was received on the morning of July 8; the
certified letter on July 9. See GC Exhs. 24(b) and (c).
7 See CP Exhs. 15(a) and (b).
8 GC Exhs. 25 and 26, respectively. Both letters were received by
mail on July 17, whereas the fax for Dunn was received on July 16, and
the fax for Leineweber on July 17. See GC Exhs. 25(b) and (c) and
26(b) and (c).
Krebbs was tentative when it came to the exact dates of cer-
tain conversations with Swalley, and portions of his testimony
were contradicted by documentary evidence. Thus, although
Krebbs testified that he had one conversation with Swalley
regarding submission of health insurance forms and that it oc-
curred on either July 9 or 10, General Counsel’s Exhibit 38
corroborates Swalley’s testimony that they had two conversa-
tions on the matter; the first on July 8, and the second on July 9,
and I so find. I further note that although Krebbs testified that
he had never been asked to fill out insurance forms prior to
July, General Counsel’s Exhibit 37 is a letter to Krebbs dated
June 5 from Darlene Van Treese, administrative assistant, in
which she advised Krebbs that he would become eligible for
medical insurance on July 18, and needed to return the applica-
tion by June 21.
Corbly answered questions directly and struck me as gener-
ally credible. Swalley appeared ill at ease and, during portions
of his testimony, did not give direct answers. Thus, as with
Krebbs, Swalley was only partially credible.
It is further alleged that on about July 17 and 18, the Re-
spondent, through Patterson, assigned more onerous working
conditions to Dunn and Leineweber, by isolating them from
other employees and assigning them cleanup work. Dunn and
Leineweber appeared candid, and I credit their uncontroverted
testimony about her words and actions, and their testimony in
general.
1. Krebbs
Krebbs, a journeyman electrician, first worked for ELC as a
temporary employee through National. When he became a
permanent employee in January 2002, his first assignment was
at the Sunman Elementary School Project (Sunman), where
Corbly was the supervisor.
The circumstances surrounding Krebbs getting the key on
March 1, 2002, and being asked to return it on July 8, 2002,9
are generally not disputed. When Corbly instituted a night shift
at Sunman, he assigned two employees, including Krebbs.
Because Krebbs had been on the job longer, Corbly put him in
charge of the night shift, informed him that would be the super-
visor of the night crew, and gave him a key to the ELC lock-
boxes, in which tools and supplies were kept. The key also was
used to enter the jobsite trailer.
The night shift lasted only 1 week, after which Krebbs was
switched to day shift as a regular journeyman electrician. He
continued to use the key to access tools and supplies. Corbly
did not immediately ask for its return because it was helpful for
Krebbs to have it when Corbly was absent from the site.
On July 8, Krebbs saw Swalley at Sunman. The first thing
Swalley said was that Krebbs needed to return the lockbox key.
Krebbs asked why, and Swalley responded that he (Krebbs)
was not allowed to have it anymore. Both Corbly and Swalley
testified that Krebbs was asked to give the key back because
another employee needed it; specifically, Trinosky, who
worked in the kitchen area at Sunman with another employee,
was in charge of that area, and was responsible for locking up
tools.

9 The dates are established by GC Exh. 36, Krebbs’ inventory list.
E.L.C. ELECTRIC, INC. 1207
Although Krebbs testified that taking away his key aggra-
vated him “a little bit,” because he thought it was discrimina-
tory and they were taking away his responsibility, the only
impact was that it “slowed us down a little bit . . . [A]s far as
me, it didn’t affect my work at all.”10
I credit Swalley’s testimony concerning the circumstances
surrounding his insistence that Krebbs fill out a health insur-
ance election form. ELC offered health insurance benefits to its
employees after a waiting period, and employees were then
required to fill out forms either accepting or declining such
insurance. Van Treese asked Swalley to remind Krebbs that he
had to fill out the form, and Swalley did so on July 8. When
Krebbs stated he did not have the forms, Swalley had Van
Treese fax them to the site, and he gave them to Krebbs. The
next morning, Swalley asked Krebbs if he had the insurance
papers. When Krebbs replied no, Swalley stated that they were
needed. He prepared and handed Krebbs a directive to bring
the papers to work on July 10, or he would not be allowed on
the jobsite.11 Krebbs complied.
Krebbs testified that starting on about July 9 or 10, Corbly
changed his assignments by assigning him to work alone and to
jobs that he could not complete in the time given. However, he
recounted only one such assignment: when he was given a job
on July 10 to complete by July 12, which he believed would
have taken six workers to finish. When Krebbs did not com-
plete it by July 12, Corbly said nothing and gave him another
assignment.
2. Dunn and Leineweber
Dunn worked as an electrical apprentice for ELC for 1 week
in July 2002, until he went out on strike on July 19. The only
jobsite he worked was Wal-Mart. On July 1, Leineweber
started for ELC as an apprentice at Wal-Mart and worked there
until he went out on strike on July 29.
The normal workday was 7 a.m. to 3:30 p.m. At the begin-
ning of the workday, employees regularly gathered at the gang-
box to receive their assignments from Patterson, the jobsite
supervisor.
Both Dunn and Leineweber testified consistently that on July
12, the day after Dunbar began handbilling at Wal-Mart, Patter-
son mentioned at such a gathering that she realized the Union
had been on the jobsite handbilling. She said she really did not
care if they went union or not, but she did not want any union
talk on company time.
It is clear from the testimony not only of Dunn, Leineweber,
and Grunde but of Supervisor Freese, as well, that there was no
previous policy in effect prohibiting employees from talking
about personal matters during the workday. Freese was a
credible witness, other than with regard to the circumstances
surrounding the warning issued to Thacker on September 26, in
which his superiors apparently intervened, and I credit his tes-
timony where it differs from that of ELC management. Freese
testified that his understanding of the no-solicitation rule in the
ELC policy handbook (the handbook),12 provided to employ-

10 Tr. 517.
11 GC Exh. 38.
12 GC Exh. 39 at p. 32.
ees, was that it prohibited people coming in to sell, and this was
strictly enforced. However, he further testified that this rule did
not prevent employees from talking on the jobsite and that they
could talk about whatever they wanted, as long as it did not
interfere with production. Freese further testified that in the 6
or so years he has been a supervisor, he has never had occasion
to write up an employee for violating the no-solicitation rule.
After receiving a union shirt from Dunbar on July 15, Dunn
wore it to work the following morning. At 9:15 a.m., Patterson
pulled him off the job on which he was hanging lights with
employee “Rorey.” She took him to a private area and said, “I
can’t believe you’re doing this. It’s a slap in the face. I told
you I didn’t want any union guys on my job. I’d fire you if I
could. I’m going to make sure everybody on this jobs knows
you are a union mole working on this job, and nobody will look
at you the same.”13 Dunn responded that he would continue to
work the same and wanted no problems. Patterson told him to
hang around the gangbox, and she called over the other 15–20
employees.
Dunn, Adair, Grunde, Leineweber, and Thacker all testified
about what Patterson then said with all of the employees pre-
sent. Their accounts were substantially similar, although not
identical, leading me to conclude that their testimony was based
on genuine recall and not “scripted.” Because Dunn was the
one she targeted, I believe he would have paid the most atten-
tion to her precise words, and he in fact appeared to have the
most complete recall. Accordingly, I accept his version of
Patterson’s statements. I give no weight to the undated, unau-
thenticated memorandum Patterson purportedly wrote at some
point concerning what she said at the meeting.14
Patterson said, “I want to introduce everybody to Jason
Dunn. If you haven’t met him already, he is our Union mole on
this job. I want you to stay away from him and don’t talk to
him about the Union, don’t let him get any of your personal
information. . . . I’d fire him if I could, but I can’t because he
works for the Union.”15 She further stated that if there were
any ditches or “crap” work to be done, he would be doing it,
but there wasn’t any. She concluded by telling other employees
that they could not reach him on company time between 7 a.m.
and 3:30 p.m. but “I don’t care what you do to him after that.
That’s personal.”16 She asked Dunn if he wanted to comment,
but he said no. The meeting ended, and Dunn went back to
hanging lights.
Leineweber wore a union shirt to work the following morn-
ing, July 17. Patterson told him that she was not surprised that
he was the other union mole. She then assigned him to work
with Dunn, “so we couldn’t spread the Union shit to other
E.L.C. employees.”17 At about 9 a.m., Leineweber went to
Dunn, who was hanging light fixtures with Rorey, and related
what Patterson had said. For the rest of the day, Dunn and
Leineweber worked together hanging light fixtures.

13 Tr. 752.
14 GC Exh. 31.
15 Tr. 754.
16 Tr. 755.
17 Tr. 268.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1208
On the morning of July 18, before assignments were made,
Patterson said to Leineweber that if he was going to go union,
she did not understand why he did not just get out and go. That
morning, Dunn and Leineweber resumed hanging light fixtures.
At about 11 a.m., Swalley approached Leineweber and asked
him if he had learned anything about “the fucking union” when
he worked for a named employer. Swalley did not deny mak-
ing this comment, and I credit Leineweber’s uncontroverted
account.
Later in the morning, after Dunn and Leineweber had hung
light fixtures for about 2 hours,18 Patterson pulled them off the
lift without explanation and told them to sweep up the whole
place and pick up trash. They engaged in such work for the
remainder of the day. Cleanup work was a function rotated
among employees. Previously, Leineweber had never per-
formed cleanup, while Dunn had done cleanup in between as-
signments, for approximately one half-1 hour at a time and had
seen others perform such work for similar periods. Although
the pay was the same, both Dunn and Leineweber considered
cleanup work less desirable because it required less skill. This
was Dunn’s last day of work for ELC. The next day, Leinewe-
ber was reassigned to hang lights with another apprentice.
At the morning gangbox meeting on July 19, Patterson ap-
proached Leineweber. She asked if Dunn had gone union and,
if so, why Leineweber did not go with him.
C. The July 2002 Strike
By letters dated July 19, 2002, Dunn, Krebbs, George Nich-
ols, and Robert Nichols advised ELC that they were going out
on strike to protest ELC’s unlawful labor practices.19 Leinewe-
ber did the same by letter dated July 29.20
The July 19 letters stated:
I am protesting the multiple unfair labor practices of
E.L.C. Electric, Inc. E.L.C. has repeatedly discriminated
against individuals in violation of the National Labor Re-
lations Act. This unlawful conduct includes but is not lim-
ited to, the following incidents:
1. E.L.C. has repeatedly harassed employee, Jason
Dunn, in retaliation for his protected activities.
2. E.L.C. has repeatedly harassed employee, George
Nichols, in retaliation for his protected activities.
3. E.L.C. has repeatedly harassed employee, Robert
Nichols, in retaliation for his protected activities.
4. E.L.C. has repeatedly harassed employee, Brad
Krebbs, in retaliation for his protected activities.
I request that E.L.C. fully remedy its unlawful conduct
by removing all improper discipline from employee per-
sonnel records, by making all employees whole for all
losses suffered by this discrimination, and by informing its
workforce that E.L.C. will no longer discriminate against
employees based on their union activities.

18 See GC Exh. 34, job timesheet for Wal-Mart employees that week.
19 CP Exhs. 8–11.
20 CP Exh. 12.
As of this date, I am commencing an Unfair Labor
Practice Strike to protest the multiple Unfair Labor Prac-
tices committed by Edwards.21
Leineweber’s letter was identical other than adding his name
to the above listed employees.
Robert Nichols did not testify about any alleged harassment
he received. As noted earlier, George Nicholas did not testify
at all.
Krebbs’ last day of work for ELC was July 19. Corbly testi-
fied without controversion that shortly before lunch that day,
Krebbs told him that he had to go to the hospital to see his ail-
ing mother and would get in touch when he would be able to
return. Krebbs left at that point and never came back. Krebbs
was off from work for 1 to 1-1/2 weeks and then went to work
for another company, where he was employed for approxi-
mately 6 months.
On July 19, Dunn, George Nichols, and Robert Nichols went
to the union hall and met with Dunbar. After signing letters
that they were on strike, the three went with Dunbar to the Un-
ion’s apprenticeship office, where they received placements
with union companies. Dunn worked for his new employer 1
hour that day and began full-time employment the following
Monday, July 22. Robert Nichols was placed with another
union company, for whom he started on either Monday or
Tuesday, July 22 or 23.
Leineweber’s last day of work for ELC was on or about July
28. He went to work for a union employer on August 1.
The only actions taken by the five employees who went on
strike were their signing letters and not returning to work for
ELC. None of them ever carried a picket sign or had any fur-
ther contact with ELC concerning the strike.
D. Other Preelection Allegations and Union Objections
1. Objection 1—alleged promise of benefits, interrogation,
and impression of surveillance
These allegations involved employees Adair and Sanderson,
and management representatives Passman and Swalley. The
promise of benefits is the subject of Union Objection 1 to the
election. My assessment of Swalley’s credibility was previ-
ously set forth. Sanderson appeared candid, and I have no rea-
son to doubt his credibility. Accordingly, his testimony is cred-
ited. More will be said about the credibility of Adair and
Passman below.
In mid-September 2002, as part of ELC’s preelection cam-
paign, Passman and Swalley visited various jobsites to address
employees. I credit Swalley, Adair, and Sanderson that Pass-
man made preliminary statements about the election prior to
asking for questions. In fact, Swalley specifically testified that
Passman had “a written presentation” so there would be consis-
tency in what he said at the different sites. In contrast, Passman
was evasive when asked if he gave a speech prior to asking for
questions, testifying that he could “not recall.” The General

21 The reference to Edwards Electric was, Dunbar testified, an inad-
vertent error as the result of using a previous letter as a model. I accept
his explanation and draw no negative inferences against the strikers or
the Union from that erroneous reference.
E.L.C. ELECTRIC, INC. 1209
Counsel does not allege that anything Passman said in his pre-
liminary statements violated the Act, nor does the Union con-
tend that any of those remarks interfered with the election.
After his remarks, Passman asked for questions. An em-
ployee asked if the Company was going to try to get better
health insurance. Sanderson’s and Adair’s accounts of Pass-
man’s answer comported with Passman’s account. Passman
responded that ELC was actively seeking to improve health
insurance benefits by the end of the year but made no promise
thereof. At the time this occurred, ELC was required to change
its health insurance carrier on January 1, 2003, as the result of
the settlement of a lawsuit. ELC in fact switched carriers in
November or December 2002.
Adair testified that after the meeting, Passman and Swalley
asked him to accompany them around the side of the trailer, to
talk in private. After saying it was “off the record,” Swalley
said he heard Adair was prounion. Adair replied no and asked
who had said that, but Swalley did not answer. His conversa-
tion was not mentioned in Adair’s April 15, 2003 Board affida-
vit, and he offered no explanation for its omission. However,
neither Passman nor Swalley specifically denied the conversa-
tion. Adair never engaged in union activities as an ELC em-
ployee and has never been involved in any lawsuits with ELC.
He struck me as candid. For example, he testified that Patter-
son at the September gangbox meeting told employees they
could make up their own minds when it came to voting for the
Union and vote the way they felt. This would have been incon-
sistent with an effort to skew his testimony to overstate her
antiunion remarks. Similarly, his account of what Passman said
at the group meeting demonstrated no apparent desire to show
management animus toward the Union. In all of these circum-
stances, I credit Adair’s account of what Swalley said to him,
and his testimony in general.
The Regional Office opined that the allegation in paragraph
5(e) of the complaint might give rise to valid objections to the
election. Thus, Thacker testified that on at least five different
occasions in late July and early August, after he returned from
lunch (sometimes with Dunbar), Patterson told him that he
could not talk about the Union on the job. Since Patterson did
not testify, this testimony went uncontroverted. The statements
Thacker attributed to her were consistent with what she had
told other employees, and I credit his account of them.
2. Objection 2—pay raises
Grunde and Thacker were hired as apprentices and later en-
rolled in a Bureau of Apprenticeship and Training (BAT) certi-
fied 4-year apprenticeship program. ELC encouraged but did
not require such enrollment, except when the job was prevail-
ing wage.
Thacker signed the apprenticeship documentation on July 9,
2002, and was indentured on July 29, whereas Grunde executed
the documentation on June 24 and was indentured on July 9.22
By letters dated September 11 and 18, 2002, respectively,23
ELC notified them they would receive wage increases to $11 an
hour (from $10.50 an hour), retroactive to September 9, be-

22 CP Exhs. 4 and 6, respectively.
23 CP Exhs. 2 and 3.
cause they were in the apprenticeship program. Thacker testi-
fied that he had not requested the increase and, to his knowl-
edge, was not scheduled for it. Nothing in the handbook states
that employees will receive raises upon starting classes, and the
Respondent provided no documentation showing that other
employees similarly situated have received them.
3. Objection 3—posting of election notice
Calvert had the notice posted in the main breakroom at the
office and in the warehouse office, and he sent a certified letter
dated September 6, 2002, announcing election details to every
employee.24 He testified that he understood the Company’s
obligation was to post it in a conspicuous place in its main
business location, and ELC tried to do that. He did not give
any instructions about posting the notice at ELC jobsites, and it
was not posted at all of them. He conceded that employees did
not report to the main office before going to their assigned job-
sites each day.
II. THE ELECTION AND ITS AFTERMATH
The Excelsior list contained the names of 26 employees, in-
cluding Corbly, Freese, and Patterson.25 On September 26,
2002, 25 of them voted. Twenty-four voted without challenge,
of whom 11 voted for the Union, and 13 against. The five al-
leged unfair labor practice strikers, who were not on the list,
also cast challenged ballots. On October 3, the Union filed
timely objections.
A. Alleged Discrimination Against Thacker
Thacker worked for ELC from July 11 or 12 until mid- or
late December 2002, when he went out on strike. He was first
assigned to Wal-Mart. He later also worked at Sunman and at
Indian Creek School, Trafalgar (Indian Creek), where Freese
was the supervisor. Indian Creek was his primary jobsite after
early September.
Although Thacker earlier engaged in union activity, the first
evidence of Company knowledge thereof was on September 26,
when Thacker served as the Union’s observer at the election.
When Thacker showed up at Indian Creek after returning from
the election, Freese handed him a written warning for missing
work the previous day26 and said that “the shop” had said to
write him up. Thacker had never received any prior warnings
for attendance, either oral or written (the handbook, at page 13,
provides for progressive discipline, starting with a verbal warn-
ing).
It is undisputed that Thacker had to take his daughter to a
medical appointment on the previous morning, September 25,
and that he informed Freese of this in advance. However, with
regard to other details of what occurred on September 25 and
26, neither Thacker nor Freese was fully credible. According
to Thacker, Freese said he would call the shop and inform them

24 GC Exh. 4, a sample. The letter urged employees to remain “un-
ion free” and enclosed campaign propaganda.
25 GC Exh. 3. As noted, the Union challenged Patterson’s vote. It is
problematic whether Corbly and Freese, who are also alleged in the
complaint as statutory supervisors and whose status as such is not now
in dispute, should have been allowed to vote.
26 GC Exh. 47.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1210
that Thacker would be late coming in on September 25.
Thacker further testified that, to his knowledge, he was not
obliged to call the shop. However, in his April 8, 2003 Board
affidavit, he stated, “Freese said that was fine and I just needed
to call the shop and tell them.”27 Consistent with what Thacker
stated in his affidavit, Freese testified that he told Thacker to
call the office (Swalley) as per policy (see page 26 of the hand-
book). I find that Thacker’s testimony on this point, impeached
by his affidavit and contradicted by other evidence, undermines
his credibility.
On the other hand, in marked contrast to his unequivocal and
straightforward testimony in general, Freese’s testimony re-
garding this incident was confusing, contradictory, and often
tentative, leading me to conclude that Freese did not initiate the
warning. Although Freese testified that the starting time was 7
a.m., he also testified that when Thacker called him on the early
morning of September 25, Thacker said, “[H]e would be
roughly, about two and a half hours late. He said he would be
there at 10:30—no later than 10:30.”28 If the starting time was
7 a.m., the math simply does not gibe. Freese further testified
that the reason Thacker was written up was because he arrived
“much later than that [10:30] . . . I believe.”29 However, the
warning report states, “Called in/But was on job at 10:30 a.m.”
Also rather curiously, Freese testified that either Passman or
Swalley had him prepare a written memorialization of the
event,30 addressed to Passman, which also stated that Thacker
arrived at 10:30 a.m. but had said he would be “a couple” of
hours late. On cross-examination, Freese averred that on no
other occasion has he ever prepared such a formal written
memorandum for an employee coming in late; rather, he merely
notates it on the actual absentee report. It further strikes me as
suspicious that although Thacker did come to work on the
morning of September 25, the Respondent waited until the next
day—and after Thacker served as the Union’s observer—to
issue him the warning.
On September 27, only Freese and Thacker were assigned to
Indian Creek. When it appeared that, due to rain, the site was
too wet for Thacker to work, Freese called Swalley to see if
there was any other work available for him. Swalley said no,
and Freese told Thacker to go home and call the next day.
Swalley later asked Freese to memorialize the incident in writ-
ing and address it to Passman, and Freese did so.31 When asked
on cross-examination, if he ever prepared a similar document
when an employee had not worked, either on account of
weather or for any other reason, Freese replied no.
On at least one occasion, in late August or early September
2002, when weather was inclement and there was only outside
work to do at Indian Creek, Freese sent Thacker and Grunde to
Wal-Mart for the workday. However, on some occasions,
Thacker candidly testified, he was sent home on rain days
rather than assigned to other jobsites.

27 Tr. 736.
28 Tr. 815.
29 Id.
30 GC Exh. 48.
31 GC Exh. 49.
In late September or early October, Freese told Thacker at
Indian School that they had no further work for him and would
call him when work picked up. On his way home, Thacker
called the shop. He spoke with Swalley, who said he could
work at Sunman. Thacker reported to Sunman the next day and
was there for about a week, before returning to Indian Creek.
Thacker last worked for ELC in December 2002 when, he
testified, he went on strike. On cross-examination, however, it
was revealed that in his affidavit to the Board, he stated, “I quit
E.L.C. because I had a job at Barth Electric, a Union contrac-
tor.”32 He further stated therein that he started at Barth Electric
on December 23, and that when he left ELC’s employ, he
merely said that he was not coming back. The Union never
notified ELC that Thacker went out on strike, and neither the
General Counsel nor the Union has contended that he was an
unfair labor practice or economic striker.
B. The Layoffs of Sanderson, Trinosky, and Grunde
in January and February 2003
Calvert and other ELC management and supervisors all testi-
fied that Swalley was the one who made decisions regarding
when layoffs would take place and which employees would be
selected. There was no set policy or criteria for determining
who would be laid off.
1. Sanderson
Sanderson worked as a journeyman electrician for ELC from
May 20, 2002, until January 9, 2003, when he was terminated.
He worked at Wal-Mart under Patterson until September. At
that time, he was reassigned to Sunman, where he remained
until his layoff. Although he kept in contact with Dunbar after
his hire, he did not overtly express support for the Union at
work.
By letter dated November 5, 2002, faxed and sent by certi-
fied mail, the Union notified ELC that Sanderson was on the
Union’s organizing committee.33
I credit Sanderson’s account of his meeting with Swalley on
December 18, which was substantially corroborated by Sander-
son’s notes thereof,34 over Swalley’s testimony that he had no
one-on-one conversations with employees the week of Decem-
ber 18. In this regard, Grunde also testified credibly that he had
a performance review meeting with Swalley on December 18.
Swalley asked Sanderson to fill out a self-review. Sanderson
commented that he did not feel Patterson cared much for him
and did not think she would give him a fair review because of
his union affiliation (Sanderson testified about accusations
Patterson leveled against his performance in September, but
they are not alleged as unfair labor practices). Swalley replied
that was nonsense. Sanderson also stated that he felt he did not
have a future with the Company and would be selected for ter-
mination because of his union affiliation. Swalley said that was
“hogwash.” He then repeatedly asked Sanderson if he was so
prounion, why he went to work for a merit shop. Sanderson
responded that he was not supposed to talk about the Union on
company time, to which Swalley then said that other employees

32 Tr. 732.
33 GC Exh. 28.
34 GC Exh. 72.
E.L.C. ELECTRIC, INC. 1211
had complained about Sanderson talking about the Union, and
his work had fallen off. Sanderson next stated that he was there
to organize ELC. Swalley asked if it was fair that someone
who just got hired should be able to force other people to go
union. Sanderson replied that everyone had a vote. He asked
Swalley if there was truth to the rumor of a layoff and how
employees would be selected. Swalley answered, “Well, of
course, we will try to keep all our loyal employees.”35
At this meeting, Swalley stated that work was going to be
slow in the months of January, February, and March. Swalley
testified that he made a similar statement to Sunman employees
as a group during the week of December 18. I find, therefore,
that Swalley made such a statement to employees that week.
Swalley laid Sanderson off at Sunman on the evening of
January 9, 2003.36 There were about six employees on the
project, including Eric Marshall, who was also laid off at the
time; and Ron Hamilton, who was not. Sanderson believed
that, according to company policy, he had more seniority than
Hamilton, who had been incarcerated for a criminal conviction
and therefore had a break in service. The handbook, at page 8,
provides that “[a] break in service is when an employee has not
worked for 60 days. All company benefits will be lost and He
or She will then have to reapply to be considered for rehire.”
The Respondent did not rebut this testimony. Sanderson was
never referred to a labor provider or recalled.
Swalley testified that Sanderson and the other journeyman
on the job were laid off because work was slow, and Swalley
no longer had need for journeymen on his jobsite. Rather, the
work could be performed by Corbly and lower-paid appren-
tices.
Corbly, the jobsite supervisor, conceded on cross-
examination that he was not certain if work was slowing down
at the site at that time. This equivocation from the jobsite su-
pervisor with much more firsthand knowledge of the job than
Swalley seriously undermines Swalley’s testimony. Addition-
ally, strongly suggesting that any decrease in work in late 2002
and early 2003, was cyclical rather than out of the ordinary was
Passman’s testimony that during that period, projects were
coming to the point where less manpower was required, “as it
usually does, during that time of year.”37 This mirrors what
Swalley told employees at Sunman in December.
Further undermining Swalley’s testimony was his professed
ignorance of the subject of ABC-required appren-
tice/journeyman ratios described in Charging Party’s Exhibit 7,
produced by the Respondent in response to a subpoena. He
testified on cross-examination that he was not aware of such
ratios and, moreover, did not even know who at ELC would be
responsible for possessing such knowledge. It is inconceivable
that a project manager of ELC, a member of ABC, who had
primary responsibility for jobsite labor, would be so ignorant
on this matter.

35 Tr. 688.
36 See GC Exh. 41, termination report. It had the notation that San-
derson was “eligible for rehire if work picks up.”
37 Tr. 901.
2. Trinosky
Trinosky was a journeyman electrician for ELC, first through
National, from approximately September 2001 until March 5,
2002; and then directly as ELC’s employee until February 2,
2003. His primary job assignments were at a K-Mart project,
then Sunman and, finally, the Early Childhood School, Warren
(Warren), where he was the supervisor until his replacement by
Patterson in approximately mid-December 2002.
The General Counsel and the Union argue that Trinosky was
never a statutory supervisory but a leadperson, and he testified
that he considered himself the latter. However, Trinosky testi-
fied that he functioned in the same role as Corbly did. Thus, he
assigned work to other ELC employees and coordinated the
scheduling of work with the general contractor and other con-
tractors on the job. He testified that in making assignments, he
had to determine which employees could better perform the
work. As I stated on the record, this reflects that he used inde-
pendent judgment in making assignments, an indicia of super-
visory authority under Section 2(11). Based on this and the
record as a whole, I find that he was a statutory supervisor until
his replacement by Patterson.
I note that Trinosky had a conversation with Passman a cou-
ple of weeks before the election, in which Passman told him it
was his job to convince younger employees to vote against the
Union. Presumably, if Trinosky were an employee, Passman’s
instruction would have constituted unlawful coercion and inter-
ference, but the General Counsel has not alleged it as a viola-
tion. Moreover, the General Counsel has not alleged that warn-
ings Trinosky received in November and early December 2002,
during his tenure as a supervisor, violated Section 8(a)(3).
Inasmuch as these warnings, which related primarily to Tri-
nosky’s performance as a supervisor, are neither alleged in the
complaint nor advanced by the Respondent as justification for
his layoff, I need not address them further.
In any event, in approximately mid-December 2002, Patter-
son replaced Trinosky as the supervisor at Warren. He testified
without controversion that his authority over other employees
then stopped, although Patterson consulted with him on occa-
sion. By letter dated February 3, 2003, sent and received by fax
that day by ELC and also sent by certified mail, the Union noti-
fied ELC that Trinosky was on the Union’s organizing commit-
tee.38
On February 5, 2 days later, Swalley laid Trinosky off.39
Approximately 10 to 12 employees were working at Warren
that day, including two journeymen who had more seniority
than him. Trinosky testified there appeared to be at least an-
other 3 months of work remaining on the project. He was never
recalled or offered referral to a labor provider.
Swalley testified that Trinosky was a supervisor at the time
of his layoff, and ELC no longer needed his services. How-
ever, prior to Trinosky’s layoff, he had already been replaced
by Patterson as supervisor and had resumed status as a jour-
neyman electrician.

38 GC Exh. 30.
39 See GC Exh. 46, termination report. It had the same notation as
Sanderson’s.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1212
3. Grunde
Grunde was employed by ELC from mid-June 2002, until his
layoff on February 17, 2003. His primary work locations were
Wal-Mart and Indian Creek. Patterson was his supervisor at the
former; Freese at the latter.
In November 2002, Dunbar asked him to be a member of the
union organizing committee, he agreed, and the Union notified
ELC accordingly, by letter dated November 25.40
Grunde testified that in December 2002, when he was meet-
ing with Swalley concerning his scheduled personnel review,
Swalley said, “We got the letter. Can you tell me what this
letter means to you?”41 Grunde replied that he was officially
supporting making ELC a union shop. Grunde’s recall of
Swalley’s response was not precise, but Grunde indicated that
Swalley expressed unhappiness over the Union’s organizing
effort but said it was not directed against Grunde in any form.
On the day Grunde was laid off at Indian Creek,42 Swalley
stated that things were slowing down and they had to lay off
some people. He further said that things might pick up in a
month or so when the project moved forward. There were 7
employees at the jobsite that day (previously, the number had
varied from 3 to 10). At the time of Grunde’s layoff, ELC re-
tained five employees with less seniority who were making the
same or a higher hourly rate than Grunde.43 Grunde was never
referred to a labor provider or recalled.
Swalley testified that Grunde was laid off because work at
the jobsite was “moving a little slow and I really didn’t need
anyone of his skill level.”44 Swalley went on to explain that he
did not consider Grunde to be “mechanically inclined.” Any
claim that Grunde’s performance had anything to do with his
selection for layoff is undermined by the fact that Grunde had
been employed since June 2002, and the Respondent furnished
no evidence that he had ever received any verbal or written
warnings concerning the quality of his work.
C. The Layoffs of Remaining Employees
and the “Transition” to Labor Providers
1. Use of labor providers prior to March 14, 2003
Meier of All Trades and Wise of National appeared candid
and forthcoming in answering questions, and they provided
documentation corroborating their testimony. I also credit
Freese and Corbly regarding the use of labor provider employ-
ees at their jobsites before and after the transition.
All Trades contracts labor in the construction industry and
has had ELC as a customer or client since approximately Au-
gust 2000, providing it with electrical labor.45 National has
contracted electrical labor to ELC since the middle of 2001.46
All Trades and National operate very similarly. Both pay the
employees they refer, determining hourly pay rates using such

40 GC Exh. 29, faxed and sent by certified mail that day.
41 Tr. 329.
42 See GC Exh. 40, termination report, containing the same notation
as Sanderson’s and Trinosky’s.
43 See GC Br., app. A.
44 Tr. 966.
45 See GC Exh. 19.
46 See GC Exh. 23.
factors as the type of job, prior earnings, experience, and as-
sessed skills. They also pay their employees various fringe
benefits and handle payroll and administrative functions. All
Trades and National do not provide jobsite supervision or large
tools or equipment, which remain the responsibilities of the
client. Clients are able to direct referred employees to projects
where they are needed.
Both companies charge a client with what is called a “multi-
plier”—a billing rate times the hourly rate paid to the em-
ployee.47
Prior to the transition, employees of All Trades and National
were used occasionally, when the workload was greater than
ELC’s own employees could handle. The number of All
Trades employees used by ELC varied. Some months, there
were none; at other times, there could be 10 or 12. At Indian
Creek, temporary employees were used when needed. They
worked full 40-hour weeks but only for short periods of time.
Prior to the March 2003, all of the Sunman electricians were
ELC employees.
2. The transition
ELC employed about 15 electricians (helpers, apprentices,
and journeymen) as of March 14, 2003, the date of the transi-
tion to labor providers. On or about March 7, ELC mailed to
employees a letter notifying them of the transition.48 It opened
by saying, “The fluctuations in our work load and the need for
flexibility is causing ELC Electric to transition its business
practices” and went on to state that some of the work force
would be added to the management team, while all other em-
ployees would be offered assistance in locating to labor provid-
ers. Enclosed was a placement assistance form to complete and
return to ELC, which would forward it to a labor provider.
On March 14, 13 electrical employees were laid off, includ-
ing Adair and Tim Grow. General Counsel’s Exhibit 12 is a
sample of the termination letter that they received. Two previ-
ously nonsupervisory employees—Clint Beck and Josh Gra-
ham—were promoted to supervisors and continued in that ca-
pacity as ELC employees. ELC retained its managers, Passman
and Swalley; and its supervisors, Corbly, Freese, Patterson, and
Richard Shuster. I credit Freese’s testimony and find that the
job duties of ELC supervisors did not change after the transi-
tion. Van Treese and other office personnel have also contin-
ued to remain ELC employees, and Calvert conceded that ad-
ministrative overhead has stayed the same.
Swalley told Adair and Grow at the time they were laid off at
the Lawrence Township Fire Department jobsite (Lawrence) on
March 14, to report back to that location the following Monday.
Swalley asked Adair to return the handbook, but not ELC’s hat
or safety glasses.
Adair and Grow, along with 10 of the other 11 employees
laid off on March 14, returned to ELC jobs the following week

47 For All Trades, the current multiplier is 1.36 on straight rate,
meaning that the client pays $1.36 per $1 paid to the employee, and
1.30 on overtime work. For prevailing or common wage jobs, the
multiplier is 1.33 for straight time. See GC Exhs. 20, 21, and 62. For
National, the multiplier ranges from between 1.45 and 1.60, based on
the dollar amount and the length of time for the job.
48 GC Exh. 11, a sample.
E.L.C. ELECTRIC, INC. 1213
as employees of All Trades. They remained under the supervi-
sion of ELC. Adair and Grow reported back to Lawrence.
Adair later worked as an All Trades employee at other projects
of ELC, including Indian Creek and Warren. He testified with-
out controversion that when he worked for ELC as an All
Trades employee, his rate of pay remained the same, he contin-
ued to go to Passman or Swalley with requests for vacation or
other absence, and nothing changed other than the name of the
issuer of his paycheck.
Since the transition, there have been an average of approxi-
mately 15 employees of labor contractors working at Indian
Creek: approximately 80 percent are from All Trades, with the
remainder from National. Indian Creek remains an ongoing
project.
General Counsel’s Exhibit 60 reflects that as of the week of
July 23, 2003, 21 All Trades employees were assigned to ELC,
to six different sites, including Indian Creek (11 employees).
Seventeen of the 21, and all of those at Indian Creek, worked
30 or more hours that week. One of those employees was
Tucker, who worked there full time for 4 or 5 weeks. After
March 2003, two employees (more, if needed) from All Trades
have been performing work at Sunman.
As reflected in General Counsel’s Exhibits 63 and 64, in the
months of June through August 2003, National provided four
employees to ELC at Indian Creek. There are no National em-
ployees currently on ELC projects.
3. The reasons for the transition
Calvert, the sole owner and 100-percent shareholder of ELC,
testified that he alone made the decision to implement the tran-
sition in March 2003. His testimony on the subject, consistent
with his testimony in general, smacked of evasion, was replete
with internal inconsistencies, and was frequently contradicted
by other witnesses of the Respondent. Calvert demonstrated an
attitude of defensiveness, sometimes crossing over into argu-
mentative, and at times appeared to show a contemptuous indif-
ference to providing responsive answers.49 For these reasons, I
find his testimony about the transition unreliable and not to be
credited. The following testimony reflects his patent unreliabil-
ity as a witness.
Calvert continually professed lack of knowledge or uncer-
tainty about matters that I would expect the sole owner and
100-percent shareholder of a small company to know. Thus,
his testimony about his types of customers and the percentage
of his business in each category was hopelessly confusing and
vague. He could only make “a wild guess” what percentage of
the business was for retail stores or what percentage was for
institutional customers. Similarly, when asked whether he
recalled when the Wal-Mart project and the Sunman project
started and ended, Calvert said he could not.
As to when he decided to transition to labor providers, Cal-
vert was evasive and ambiguous, as the following reflects:50

49 For example, when asked when the transition occurred, he testi-
fied, “I believe, August or September [2002]” (Tr. 37), even though his
counsel then immediately stipulated that it took place on March 14,
2003.
50 Tr. 99–100.
A. We had—we had thought—about doing it several
years ago. We had talked about it in various meetings,
staff meetings . . . I can’t give you an exact time and date
when I started working on doing it.
. . .
Q. Who did you talk to in the staff meetings, and
when was that?
A. I don’t have dates. And I don’t have the exact
people that . . . I had discussed things with.
Later, when asked for how long he had been planning the
transition, he replied, for at least 1 to 2 years.
When asked how long it was between the time he made the
decision to use labor contractors and when he communicated
the decision to employees, he answered, “I can’t tell you. I
don’t really know.”51
When asked when he had discussions with All Trades about
the transition, his response was, “I’m not sure about the
dates.”52
When asked how many ELC projects were going on in
March 2003, at the time of the transition, his answer, once
more, was, “I don’t really know.”53
When asked how many employees of labor providers ELC
presently employs, he replied, “I don’t know.”54
When asked how many projects ELC currently is working
on, he answered, “It could be five. There again, I don’t really
know.”55
After he testified that ELC has used an outsource payroll
company rather than ELC office personnel, he was asked when
this started. He replied, “I’m not sure,” and when next asked if
it was under or over 2 years ago, again answered, “I’m not
sure.”56
Calvert also was frequently inconsistent in his testimony on
important matters. Thus, he first testified that ELC had one
major ongoing project at the time of the trial but later testified
that he had to look at his books to determine if either Indian
Creek or Southport is now the largest, clearly implying that
there are two, not one, “major” ongoing project. Swalley also
contradicted Calvert, testifying that ELC currently has four
“large” school projects.
Calvert also shifted in answering why he decided to transi-
tion employees from ELC to labor providers. He initially testi-
fied that the reasons were for increased productivity and profit-
ability, stating nothing about the workload at the time. Later,
however, he testified the decision was made in March because
“[o]ur workload was down with projects that we were finishing
up.”57 Still later, however, he reverted to his earlier answer,
and said that transition was made because, “First of all, health
insurance was extremely high. There are so many employee

51 Tr. 102–103.
52 Tr. 118.
53 Tr. 113.
54 Tr. 39.
55 Tr. 127.
56 Tr. 101.
57 Tr. 171.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1214
laws and regulations anymore, we didn’t feel like our present
staff could keep up with them. . . .”58
Any claim by Calvert that workload played a role in the de-
cision to implement the transition was totally undermined by
Passman, who testified as follows.59
Q. You said that at the time you made the transition to
eliminate your whole labor force, that things were slowing
down; correct?
A. No, not at the time of the transition. I don’t believe
I said that.
Passman went on to say that the workload at the time of the
transition was substantially the same as before. Passman’s
testimony on this was implicitly supported by Swalley’s re-
marks to Adair on March 10, as will be described subsequently.
I so find as a fact that the level of work was not down in March
2003.
Jerry Tucker, who is not a union member, has worked as a
journeyman electrician for ELC through All Trades on several
occasions. The most recent was from June 1 until August 12,
2003, when he was laid off.
Tucker had three conversations with Swalley regarding em-
ployment: the first was on December 31, 2002, at the ELC
Tractor Supply, Greenfield site; the second and third were on
January 7 and March 14, 2003, respectively, at Warren. Al-
though his recollection of exact words was not precise, particu-
larly in the first conversation, Tucker appeared sincere. While
Tucker testified about three specific conversations with
Swalley, Swalley could not recall any conversations with
Tucker present in December or January, and in his testimony he
did not address the March 14 conversation as related by Tucker,
which therefore went unrebutted. For these reasons, I credit
Tucker’s testimony.
Swalley rarely spoke with Tucker, other than to greet him,
but in December, Swalley initiated the conversation. Swalley
stated that he wanted to hire Tucker and Wes Fink, another All
Trades employee, but couldn’t “because of all the union stuff.”
He further said that the Union wanted to run him out of busi-
ness. Tucker, afraid of sounding prounion, responded to the
effect that he thought the Union was unfair. In the January
conversation, Swalley approached Tucker and stated that he
wanted to hire Tucker and to get rid of a couple of other people
for various reasons, but he couldn’t just hire and fire whomever
he wanted because he was afraid of getting sued by the Union.
After a layoff, Tucker was reassigned to Warren on March
14. That day, he told Swalley that he was glad to be back to
work. Swalley responded that for all practical purposes, he was
an employee of ELC. Swalley further said that Tucker and
Fink were the kind of employees he wanted to keep. At Indian
Creek, Tucker’s last assignment for ELC, Freese was his super-
visor.
Adair, an employee of ELC since July 8, 2002, testified that
on March 10, 2003, Swalley came to him and Grow at Law-
rence. He gave them enrollment forms for All Trades and said
that they had to fill them out and give them back to him in or-

58 Tr. 1015.
59 Tr. 917–918.
der to continue working at the project. When Grow asked why,
Swalley stated, “off the record,” that ELC was doing this be-
cause of all of the pending lawsuits and the problems with the
Union; Swalley also said that everybody but a few individuals
who were going to be kept as managers had to switch to All
Trades.
Swalley made a general denial about having any conversa-
tions about the Union that day but did not specifically deny the
statements Adair attributed to him. When Swalley was asked
what he told Grow and Adair on that occasion, he did not give a
direct answer, testifying, almost apologetically, “Basically I
was just as surprised as they were. I had just found out about it
the day before. And I was just instructed to give them the let-
ters. . . . We were all kind of confused as to what was going on
. . . . It happened very quickly, it caught me by surprise.”60
In light of my conclusion that Adair was a credible witness,
as detailed earlier, and Swalley’s somewhat nonresponsive
answer, I credit Adair’s version of what Swalley said regarding
the reasons for the transition. Swalley’s testimony about his
reaction to finding out about the transition did seem spontane-
ous and genuine, and I credit it.
III. ANALYSIS AND CONCLUSIONS
A. The Respondent’s Conduct Before the July 2002 Strike
I will first address the allegations in the complaint of inde-
pendent violations of Section 8(a)(1) and then turn to the al-
leged discrimination against Krebbs, Dunn, and Leineweber.
Paragraph 5(a) relates to Swalley telling Krebbs at Sunman
on about July 9, 2002, that he had to complete insurance forms.
Although the complaint alleges that Swalley “informed em-
ployees they would be discharged unless they completed insur-
ance forms because those employees engaged in union activ-
ity,” the record does not reflect that Swalley said anything
about union activity in his conversations on the subject with
Krebbs, either directly or indirectly. Accordingly, I recom-
mend dismissal of this allegation.
Paragraphs 5(b), (c), (d), and (k) all relate to Patterson’s
conduct at Wal-Mart in mid-July. In her conversations with
employees at the gangbox on July 12 and 16, Patterson told
them that they could not talk about the Union on worktime.
There is no evidence that employees were previously told they
could not talk about nonwork matters on company time and,
indeed, Supervisor Freese testified that employees were permit-
ted to talk about anything they wanted on the jobsite, as long as
it did not interfere with production. Patterson never notified
employees that she was rescinding the new rule. Accordingly,
Patterson, by promulgating and maintaining a rule prohibiting
employees from discussing or soliciting only on behalf of the
Union violated Section 8(a)(1). See ITT Industries, 331 NLRB
4 (2000); Emergency One, 306 NLRB 800 (1992). Therefore, I
sustain the allegation in paragraph 5(b).
Patterson singled Dunn out, both one-on-one and before a
group. She called him a union “mole”; told other employees
not to talk to him about the Union, to stay away from him, and
to avoid giving him personal information; said she would fire

60 Tr. 951–952.
E.L.C. ELECTRIC, INC. 1215
him if she could; said she would give him “crap work” if there
was any to be done; and finished by saying that other employ-
ees could not “reach him” on company time but “I don’t care
what you do to him after that.” I find that her statements, all
directed against Dunn, included an implicit threat of physical
violence (indeed, she seemed to encourage it), an implicit threat
of more onerous work assignments, denigration, and an instruc-
tion to employees not to discuss the Union with him. Accord-
ingly, I sustain all of the allegations in paragraph 5(c).
Paragraph 5(d) relates to Patterson’s assigning Dunn and
Leineweber to work together on July 17. Leineweber testified
without controversion that Patterson told him he was being
assigned to work with Dunn, “so we couldn’t spread the union
shit to other E.L.C. employees.” I find sustained allegation
(d)(i), that she told employees they were being isolated because
of their support for the Union. Subparagraph (d)(2) further
alleges that by isolating them, Patterson created the impression
among employees that their union activities were under surveil-
lance. However, prior to this, both Dunn and Leineweber wore
union shirts to work, and the Union sent letters to ELC stating
that they were on the organizing committee. Their union af-
filiation therefore was open and known, rather than covert.
Patterson said nothing to suggest that her knowledge of their
activities was based on anything else. Contrast, Peter Vitale
Co., 310 NLRB 865, 874 (1993). Accordingly, I recommend
this allegation be dismissed.
Paragraph 5(k) concerns Patterson’s statements to Leinewe-
ber on July 18 and 19. The first was that if he was going to go
union, she did not understand why he did not just leave; the
second, that if Dunn had gone union, why Leineweber did not
go with him. The General Counsel alleges this constituted
solicitation to quit his employment. Although I would charac-
terize her statements as implied threats of termination (see
McDaniel Ford, 322 NLRB 956 (1997)), I conclude that they
also amounted to such solicitation and therefore violated Sec-
tion 8(a)(1) on that basis.
Turning to the allegations of discrimination, the framework
for analysis is Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Under Wright Line, the General Counsel must make a prima
facie showing sufficient to support an inference that the em-
ployee’s protected conduct motivated an employer’s adverse
action. The General Counsel must show, either by direct or
circumstantial evidence, that the employee engaged in pro-
tected conduct, the employer knew or suspected the employee
engaged in such conduct, the employer harbored animus, and
the employer took action because of such animus.
Direct evidence of an antiunion motive in discharge cases is
often lacking and, for that reason, reliance on circumstantial
evidence, and reasonable inferences deriving therefrom, is ap-
propriate and often necessary. Laro Maintenance Corp. v.
NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995); NLRB v. Warren L.
Rose Castings, 587 F.2d 1005, 1008 (9th Cir. 1978); McGraw-
Edison Co. v. NLRB, 419 F.2d 67, 75–76 (8th Cir. 1969). Thus,
“Illegal motive has been implied by a variety of factors such as
‘coincidence in U activity and discrimination.’ . . . ‘general bias
or hostility toward the union’ . . . ‘variance from the employer’s
normal employment routine’ . . . and ‘an implausible explana-
tion used by the employer for its action’ . . . .” McGraw-Edison
Co. v. NLRB, id. at 75.
Under Wright Line, if the General Counsel establishes a
prima facie case of discriminatory conduct, it meets its initial
burden to persuade, by a preponderance of the evidence, that
protected activity was a motivating factor in the employer’s
action. The burden of persuasion then shifts to the employer to
show that it would have taken the same adverse action even in
absence of the employee’s protected activity. NLRB v. Trans-
portation Corp., 462 U.S. 393, 399–403 (1983); Kamtech v.
NLRB, 314 F.3d 800, 811 (6th Cir. 2002); Serrano Painting,
332 NLRB 1363, 1366 (2000); Best Plumbing Supply, 310
NLRB 143 (1993). To meet this burden, “an employer cannot
simply present a legitimate reason for its action but must per-
suade by a preponderance of the evidence that the same action
would have taken place even in the absence of the protected
conduct.” Serrano Painting, supra at 1366, citing Roure Ber-
trand Dupont, 271 NLRB 443 (1984).
Although the Board cannot substitute its judgment for that of
an employer and decide what would have constituted appropri-
ate discipline, the Board does have the role of deciding whether
the employer’s proffered reason for its action was the actual
one, rather than a pretext to disguise antiunion motivation.
Detroit Paneling Systems, 330 NLRB 1170 (2000); Uniroyal
Technology Corp. v. NLRB, 151 F.3d 666, 670 (7th Cir. 1998).
Prior to the actions of the Respondent alleged to be discrimi-
natory, Krebbs, Dunn, and Leineweber all had engaged in un-
ion activity, and the Respondent was aware of such. Thus,
Dunbar faxed a letter to ELC on July 8, 2002, stating that
Krebbs was chairman of the organizing committee, and faxed
letters to ELC on July 15 and 17, stating that Dunn and
Leineweber were on that committee. Moreover, before any
action was taken against Dunn and Leineweber, they had worn
their union shirts to work.
Specific animus directed against Dunn and Leineweber is
evidenced by Patterson’s 8(a)(1) statements to them. Indeed,
Patterson expressly told Leineweber on July 17 that she was
assigning him to work with Dunn so they would not “spread the
union shit” to other employees, and on the morning of July 18,
both Patterson and Swalley made remarks to him expressing
antiunion animus.
As to Krebbs, animus can be inferred from the fact that the
conduct against him occurred almost immediately after the
Respondent learned of his union activity and the animus previ-
ously demonstrated by Patterson. ELC is small company run
by Calvert as the sole owner, and I believe that Supervisor Pat-
terson’s statements about the Union were made not sua sponte
but with the approval, express of tacit, of higher management.
The actions taken with regard to Krebbs included manage-
ment’s asking for the return of his lockbox key, Swalley de-
manding he complete health insurance papers, and Corbly giv-
ing him an assignment that he could not complete in the time he
was given. Regarding Dunn and Leineweber, Patterson iso-
lated them from other employees and assigned them to work
together on cleanup.
The threshold issue regarding Krebbs is whether the actions
taken against him were adverse. As to Swalley’s taking away
his key, Krebbs testified that it aggravated him “a little” but had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1216
no effect on his work. Regarding the job assignment on July
10, which Krebbs did not finish in time, Corbly said nothing
about his failure to complete it, issued no warning, and instead
merely gave him another assignment. Krebbs continued work-
ing for ELC until on about July 19, when he went out on strike.
I conclude that these actions of the Respondent did not rise to
the level of acts of discrimination violating Section 8(a)(3).
On the matter of the health insurance papers, Krebbs testi-
mony was not credible. Although he denied having being told
earlier that he had to fill out an election form, Van Treese had
sent him a letter dated June 5, specifically asking him to do so
by June 21. In any event, I find it difficult to see how telling an
employee to complete an election form, accepting or waiving a
fringe benefit, has any kind of coercive or otherwise negative
impact on the employee. Assuming arguendo that the Respon-
dent’s insistence that Krebbs fill out the form was an adverse
action, based on Van Treese’s letter and Swalley’s testimony, I
conclude that the Respondent acted in conformity with its nor-
mal practice and had a legitimate business reason, to wit,
documentation of an employee’s wishes. I therefore conclude
that the Respondent has met its burden of persuasion of show-
ing that it would have demanded Krebbs submit the form in the
absence of his union activity.
Based on the above analysis, I conclude that the allegations
of discriminatory conduct against Krebbs should be dismissed.
Turning to Dunn and Leineweber, I credit the latter’s testi-
mony that Patterson told him on the morning of July 17 that she
was assigning him to work with Dunn to prevent them from
talking about the Union to other employees. Patterson did not
testify, and the Respondent has failed to meet its burden of
persuasion of showing that they would have been segregated
absent their union activity. Accordingly, this violated Section
8(a)(3) and (1).
Concerning Patterson’s assignment of Dunn and Leineweber
to sweep and otherwise clean up on July 18, cleanup was a task
rotated among employees. However, the timing of the assign-
ment vis-à-vis statements that Patterson and Swalley made to
Leineweber that morning raises a strong inference that the ac-
tion was motivated by animus. Patterson did not testify, and I
conclude that the Respondent has failed to meet its burden of
persuasion of showing it had a legitimate business reason for
pulling Dunn and Leineweber off their electrical job and having
them perform the less desirable work of cleanup for the remain-
ing 6 hours of the workday. See L.S.F. Trucking, 330 NLRB
1054 (2000); Bestway Trucking, 310 NLRB 651 (1993). There-
fore, I conclude that this assignment constituted unlawful dis-
crimination in violation of Section 8(a)(3) and (1).
B. The Strike in July 2002
The above conduct of ELC constitutes the sole evidence of
employer action alleged to have constituted prestrike unfair
labor practices. The Union’s letter of July 19, 2002, announced
that Dunn, Krebbs, George Nichols, and Robert Nichols were
going out on strike, due to discrimination against each of them.
However, although Robert Nichols testified, he did not testify
about any actions taken against him by ELC, and the record
does not reflect any actions taken against George Nichols. The
letter of July 29 regarding Leineweber going out on strike
added his name to the list of alleged discriminatees.
As I stated at the trial, the fundamental issue here is whether
the above-named employees went out on “strike.” The Taft-
Hartley Act added a definition of “strike” to the Act that reads
as follows:
(1) The term “strike” includes any strike or other concerted
stoppage of work by employees (including a stoppage by rea-
son of the expiration of a collective-bargaining agreement)
and any concerted slow-down or other concerted interruption
of operations by employees.61
In determining the existence of strike activity, the Board has
distinguished between an employee’s withholding of services
pending desired remedial action by the employer, and aban-
donment of employment with no intention of returning. The
latter activity, whether undertaken individually or in concert, is
unprotected. Greyhound Food Management, 198 NLRB 1146
(1972); Crescent Wharf & Warehouse Co., 104 NLRB 860,
861–862 (1953). This is so even if the concerted action re-
sulted from dissatisfaction with wages or working conditions
(Essex International, 222 NLRB 121 (1976); Eaborn Trucking
Service, 156 NLRB 1370 (1966)), or it was in protest of the
discharge of another employee (Fashion Fair, 163 NLRB 97
(1967)).
George Nichols did not testify about the circumstances sur-
rounding his cessation of work for ELC, and I therefore con-
clude that he has failed to show that he was a striker. Corbly
testified without controversion that Krebbs stated that he had to
stop working because his mother was in the hospital and that he
would get back in touch when he would be able to return to
work. Krebbs, in fact, went to work for another company about
a week or so after he left ELC. I conclude in these circum-
stances that Krebbs voluntarily quit his employment rather than
became a presumptive striker.
I now address the remaining strikers: Dunn, Leineweber,
and Robert Nichols. Almost simultaneously with their signing
of letters to ELC that they were going out on strike, all of them
received union hiring hall referrals to union employers, for
whom they began work almost immediately. After they left
ELC’s employ and sent the letters, they never took any other
action in support of their purported strike, otherwise returned to
ELC jobsites, or engaged in any other conduct evidencing an
interest in ever returning to work for ELC. Obtaining employ-
ment after going on strike does not ipso facto establish that an
employee quit his or her job. Noel Corp., 315 NLRB 905, 909
(1994). Here, however, the employees got new jobs at the
same time they ceased working for the Respondent. The close
timing and other circumstances suggest that they knew they
already had new jobs at the time they signed their letters to
ELC.
In light of all of the above circumstances, I conclude that
Dunn, Leineweber, and Robert Nichols voluntarily quit the
Respondent’s employ with no intention of returning, rather than
engaged in a bona fide strike, whether characterized as unfair

61 29 U.S.C. §142(2).
E.L.C. ELECTRIC, INC. 1217
labor practice or economic. It follows that they were not eligi-
ble to vote in the September 26, 2002 election.
I therefore sustain the challenges to the ballots of all five al-
leged strikers.
C. The Respondent’s Conduct After the
“Strike” and Before the Election
Paragraph 5(e) concerns Patterson’s telling Thacker on at
least five occasions in late July and early August 2002, that he
could not talk about the Union on worktime, a reiteration of the
rule she announced at the gangbox in July. For reasons previ-
ously explained, I conclude that this violated Section 8(a)(1). I
also conclude that constituted an additional basis for setting
aside the election.
Paragraphs 5(l)(i) and (ii) of the complaint relate to the con-
versation between Swalley and Adair following the preelection
meeting Swalley and Passman held with employees at Sunman
on September 19. Swalley said that he had heard that Adair
was prounion. Adair said no and asked who had said that.
Swalley did not answer. I conclude that Swalley’s statement
created the impression of surveillance and implicit interrogation
of Adair concerning his union sympathies (as reflected by
Adair’s response). Therefore, I sustain these allegations.
Turning to the Union’s objections to the election, Objection
1 relates to paragraph 5(f) of the complaint, which alleges that
Passman at the above-preelection meeting impliedly promised
employees improved benefits if they did not select the Union as
their collective-bargaining representative. The subject of bene-
fits was not contained in Passman’s presentation. Rather, an
employee asked if the Company was going to try to get better
health insurance, and Passman responded that ELC was seeking
to improve employees’ health insurance benefits. I conclude
that his answer did not expressly or implicitly associate an in-
crease in benefits with the employee’s rejection of the Union.
Therefore, I conclude that he did not unlawfully promise a
benefit. See LRM Packaging, 308 NLRB 829 (1992).
Accordingly, I overrule Objection 1.
Objection 2 concerns the pay raises that were given to
Grunde and Thacker in September 2002, presumably because
they enrolled in the apprenticeship program.
The conferral of benefits to employees during the critical pe-
riod is not per se grounds for setting aside an election. The
focus of the inquiry is whether the benefits were granted for the
purpose of influencing the employees’ votes and were of a type
reasonably calculated to have that result. NLRB v. Exchange
Parts Co., 375 U.S. 405, 409 (1964); Lampi, L.L.C., 322 NLRB
502 (1993); United Airlines Services Corp., 290 NLRB 954
(1988). There is an inference that benefits conferred during the
critical period are coercive, but the employer may rebut this by
showing that it had a valid reason separate and apart from the
pending election, such as following an established practice.
Lampi, supra; Uarco, 216 NLRB 1, 2 (1974). Whether the
employer committed other unfair labor practices during the
same time period is a relevant factor. Lampi, supra at 503.
Here, the policy handbook is silent on the matter of an em-
ployee receiving a pay raise for enrolling in an apprenticeship
program. The Respondent submitted absolutely nothing in
writing to establish that it had a policy of giving pay raises for
that reason or that any other employees ever received them. In
the absence of such evidence, and in light of the Company’s
commission of numerous unfair labor practices in September, I
cannot conclude that the Respondent has rebutted the inference
that the pay raises granted to Grunde and Thacker were de-
signed to influence their votes in the election. Consequently,
their pay increases constitute a ground for setting aside the
election.62 Lampi, supra.
Therefore, I sustain Objection 2.
Objection 3 relates to posting of the notice of election. Ad-
mittedly, ELC posted the notice to employees only in the main
breakroom at the office and in the warehouse, where employees
did not report before going to their jobsites. It did send, by
certified mail, a letter to employees telling them the details of
the election.
Section 103.20 (a) of the Board’s Rules and Regulations, 29
C.F.R. § 103.20(a), provides that “Employers shall post copies
of the Board’s official Notice of Election in conspicuous places
at least 3 fully working days prior to . . . the day of the elec-
tion.” This requirement is mandatory in nature and may not be
satisfied by alternative means of communication to employees.
Thus, in Terrace Gardens Plaza, 313 NLRB 571, 572 (1993),
the Board, in disagreement with the Regional Director, found
an employer’s mailing of the notice to employees in lieu of
posting inadequate to satisfy the posting requirement. Here,
ELC did not even mail the notice itself but instead communi-
cated election details in letters that urged employees to vote
against the Union.
The failure to comply with the notice requirement is an ipso
facto ground for setting aside an election. No inquiry is made
into whether the failure had any actual impact on whether em-
ployees voted. Terrace Gardens Plaza, supra at 572; Smith’s
Food & Drug, 295 NLRB 983 at fn.1 (1989).
Accordingly, Union’s Objection 3 is sustained.
D. Violations of Section 8(a)(1) After the Election
Paragraph 5(g) relates to Swalley’s conversations with San-
derson and Grunde on December 18, 2002, during their per-
formance reviews. It is alleged in 5(g)(i) that Swalley interro-
gated employees about their union activities, and in 5(g)(ii) that
he informed employees that employees would be laid off be-
cause of such activities.
Interrogation of employees is not per se unlawful. The
Board looks at whether under all the circumstances the interro-
gation reasonably tends to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. Emery
Worldwide, 309 NLRB 185, 186 (1992); Rossmore House, 269
NLRB 1186 (1984). In Rossmore House, the Board held it was
no violation to question open and active union supporters about
their union sentiments, unaccompanied by threats or promises.
Sanderson initiated mention of the Union and opined that
Patterson would not give him a fair review because of his union
affiliation. Swalley replied this was nonsense. Sanderson
stated he did not feel he had a future with the Company and
would be selected for termination because of his union affilia-

62 The General Counsel does not allege the pay increases as an unfair
labor practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1218
tion, to which Swalley responded, “Hogwash.” It was then that
Swalley kept asking Sanderson if he was so prounion, why he
went to work for a merit shop.
Thus, Sanderson triggered the discussion about the Union
and his union affiliation, Swalley denied there would be retalia-
tion against him for that affiliation, and Swalley’s questions did
not seek any information but were merely rhetorical in nature.
Even if Swalley’s questions are characterized as “interroga-
tion,” under all the circumstances, such interrogation was not
coercive.
However, when Sanderson asked whether there would be a
layoff and what criteria would be used for selection for layoff,
Swalley gratuitously responded that ELC would try to keep its
“loyal” employees. This occurred after their lengthy discussion
about the Union and immediately after Sanderson stated he was
there to organize employees and Swalley’s comment question-
ing whether it was fair that someone who just got hired could
force other people to go union. In this context, Swalley’s
statement about keeping loyal employees logically referred to
employees who did not support the Union, and was therefore
not overly ambiguous. Accordingly, I conclude that Swalley’s
statement was coercive.
In contrast to Swalley’s conversation with Sanderson,
Swalley raised the subject of the Union in his conversation with
Grunde, by asking the meaning of the letter announcing Grunde
was a member of the organizing committee. Swalley expressed
unhappiness about the organizing effort, undercutting his assur-
ance to Grunde that the unhappiness was not directed against
him. The conversation took place in the context of Grunde
receiving his performance review. In all of these circum-
stances, I conclude that Swalley’s interrogation was coercive
and violated Section 8(a)(1).
Based on the above, I sustain allegation 5(g)(i) (interrogation
of Grunde) and allegation 5(g)(ii).
Paragraphs 5(h) and (i) concern Swalley’s conversations
with All Trades employee Tucker on December 31, 2002, and
January 8, 2003, respectively, and allege that Swalley informed
employees they could not be hired on a permanent basis be-
cause ELC employees had engaged in union activity. Inasmuch
as Swalley’s conversations with Tucker concerned the latter’s
being employed by ELC, I will consider Tucker to have been
an applicant for employment and thus to have occupied the
status of employee for 8(a)(1) purposes. See Phelps Dodge
Corp. v. NLRB, 313 U.S. 177 (1941); J. L. Philips Enterprises,
310 NLRB 11 (1993). The Respondent has not contended oth-
erwise.
In the December conversation, Swalley stated that he wanted
to hire Tucker and another All Trades employee but could not
do so “because of all the union stuff.” He further stated that the
Union wanted to run him out of business. In the January con-
versation, Swalley volunteered that he wanted to hire Tucker
and get rid of a couple of other people “for various reasons,”
but he could not just hire and fire whom he wanted because he
was afraid of getting sued by the Union.
An analysis of whether Swalley’s statements violated Sec-
tion 8(a)(1), as with employer interrogation, hinges upon
whether or not they were coercive. I deem it dispositive of this
issue the fact that Swalley rarely engaged in conversation with
Tucker but on those two occasions approached Tucker and
accused the Union of being responsible for his not being able to
obtain permanent employment with ELC. Swalley’s statements
had the natural effect of discouraging union activity or support,
and, indeed, Tucker testified that he was afraid of voicing his
prounion sentiments in response. I conclude, therefore, that
Swalley’s statements were coercive of Tucker’s Section 7
rights, and I sustain the allegations in paragraphs 5(h) and (i).
Finally, the allegations in paragraphs 5(j)(i) and (ii) pertain
to Swalley’s conversation with Adair on March 10, 2003.
Swalley told him that ELC was laying off employees and con-
verting to the use of temporary labor services because of “pend-
ing lawsuits and the problems with the Union.” I conclude that
such statements were coercive and that these allegations there-
fore have been sustained.
E. Actions Taken Against Thacker After the Election
On September 26, 2002, Thacker received a written warning
immediately upon returning from serving as the Union’s ob-
server at the election. The element of animus is established by
violations of Section 8(a)(1) committed prior to September 26
by the Respondent. In any event, the timing of the issuance of
the warning—on the same day Thacker served as the Union’s
observer—gives rise to the inference of animus. See Olathe
Healthcare Center, 314 NLRB 54 (1994); NLRB v. Rain-Ware,
732 F.2d 1349, 1354 (7th Cir. 1984). The General Counsel has
therefore established a prima facie of discriminatory conduct
under Wright Line.
As detailed earlier, Freese’s testimony—credible in gen-
eral—was markedly confusing and contradictory regarding why
he issued Thacker a written warning on September 26 for what
Thacker had allegedly done the day before. Further, it was not
consistent with ELC’s documentation of the incident. A com-
pany’s shifting of reasons for imposition of discipline is fre-
quently indicative of discriminatory motive. See, e.g., Central
Cartridge, Inc., 236 NLRB 1232 (1978). Moreover, this was
the first occasion when either Passman or Swalley instructed
Freese to prepare a formal written memorialization of an inci-
dent involving an employee coming in late, and no explanation
was offered for this unusual step. It is also significant that
Thacker had received no prior warnings, oral or written, for
absenteeism or tardiness but was issued a written warning in-
stead of a verbal one.
I conclude, therefore, that the Respondent has failed to meet
its burden of persuasion of showing that Thacker would have
received the written warning had he not engaged in union activ-
ity. Therefore, its issuance violated Section 8(a)(3) and (1).
The General Counsel also contends that Swalley’s refusal to
reassign Thacker to work at another jobsite on September 27
was discriminatory. Again, the General Counsel has estab-
lished the elements of union activity, knowledge, and animus.
The pivotal question here is whether the “action” element has
been met, to wit, whether the General Counsel has shown that
there was other work available to which Thacker was not as-
signed.
There is no dispute that it was raining on September 27, that
no other employees besides Thacker were assigned to Indian
Creek, and that there were previous occasions when Thacker
E.L.C. ELECTRIC, INC. 1219
was sent home on rain days rather than having been reassigned
to work at other jobsites.
The fundamental problem is that the General Counsel has not
established, let alone identified, other work that Thacker could
have performed that day, either in terms of jobsites or number
of hours. The Respondent has claimed there was none, and the
General Counsel has provided no evidence to contradict that
assertion. In these circumstances, I conclude that the General
Counsel has failed to make a prima facie showing that the Re-
spondent refused to reassign Thacker to available work and
recommend that this allegation be dismissed.
F. The Layoffs of Sanderson, Trinosky, and
Grunde in January and February 2003
The elements of union activity and employer knowledge
thereof are satisfied for these employees by their agreeing to
serve on the Union’s organizing committee and by the Union’s
notification thereof to ELC. Swalley alluded to such notifica-
tion when he spoke with Grunde on December 18. On that
same day, Sanderson expressly told Swalley he was a union
supporter. In terms of animus, I have found that agents of ELC
committed numerous independent violations of 8(a)(1) in the
time period from September 2002 to March 2003, including
Swalley’s interrogation of Grunde and his remark about loyal
employees to Sanderson on December 18. All three employees
were laid off. I conclude that the General Counsel has estab-
lished prima facie cases of unlawful termination under Wright
Line.
Turning to the Respondent’s defenses for the layoffs, the Re-
spondent submitted no documentation showing specifically
what work levels were at the times of these layoffs and how
they compared with work at the end of 2002.
Although Swalley testified that Sanderson and the other
journeyman at Sunman were laid off on January 9 because
work was slow, Corbly, the job supervisor, did not corroborate
this justification. Certainly, Corbly had much more firsthand
knowledge of the work at the site than Swalley, and his testi-
mony seriously undermined the Respondent’s proffered ground
for Sanderson’s layoff. Further, Sanderson testified that em-
ployee Hamilton was not laid off, even though he had had a
break in service that caused him to have less seniority than
Sanderson. The handbook provision on break in service, on its
face, supports Sanderson’s assertion. The Respondent did not
controvert Sanderson’s testimony and, indeed, offered no evi-
dence at all on this point.
According to Swalley, Trinosky was a supervisor at the time
of his layoff on February 5, and the Respondent no longer
needed his services. Inasmuch as Trinosky was replaced as
supervisor by Patterson the previous December, this asserted
justification must fail. The Respondent has not provided any
other reason for why Trinosky was selected for layoff.
Finally, as to Grunde, on February 17, the day he was laid
off, ELC retained five employees with less seniority who were
making the same or a higher hourly rate than he was. Swalley
testified Grunde was laid off because work at the site was “a
little slow” and because he considered Grunde to lack mechani-
cal abilities. As previously stated, the latter reason is under-
mined by the fact that Grunde had been employed since June
2002, and never received any verbal or written warnings con-
cerning the quality of his work. The Respondent offered no
other reasons for why he was chosen for layoff.
In the absence of supporting documentation, conflicting
statements from the Respondent’s witnesses as to the volume of
work in early 2003, and the Respondent’s failure to establish
bona fide reasons why Sanderson, Trinosky, and Grunde were
selected for layoffs, I conclude that the Respondent has failed
to meet its burden of persuasion of showing that they would
have been laid off but for their having engaged in union activi-
ties. Accordingly, their layoffs violated Section 8(a)(3) and (1).
G. The Transition to Labor Providers in March 2003
At the time of the transition on March 14, 2003, the Union’s
objections to the election were still pending before the Regional
Office. The Respondent had already committed numerous
unfair labor practices, including the recent layoffs of Sander-
son, Trinosky, and Grunde. Swalley had told employees Adair
and Grow on March 10 that ELC was laying them off and
changing to the use of labor providers because of pending law-
suits and problems with the Union. Prior to March 2003, the
Respondent had used employees of labor providers only on an
as-needed basis, to supplement the work of regular ELC em-
ployees. After March 14, most of the work on ELC jobs were
performed by electricians who had been previously employed
by ELC, and they continued under the supervision of ELC su-
pervisors. Some continued on the same ELC jobsites where
they had worked prior to March 14. Managers, supervisors,
and office personnel all remained in ELC’s employ after March
14. In sum, very little changed after the transition other than
the elimination of electrical employees as ELC employees.
In light of these factors, I conclude that the General Counsel
has established a prima facie case that ELC laid off its employ-
ees on March 14, 2003, because of their union activities, to wit,
to avoid having further NLRB proceedings and the risk that the
Union might ultimately be certified as the collective-bargaining
representatives of its employees.
Calvert alone made the decision to eliminate ELC employees
who performed electrical work and to switch to the use of labor
contractors. As I previously detailed, his testimony on the rea-
sons he made the decision—and his testimony in general—was
evasive, inconsistent, and contradicted by other agents of the
Respondent.
Specifically as to why he made the decision, Calvert gave
three reasons during the course of his testimony. He initially
testified it was for increased productivity and profitability, but
he offered no elaboration on how the transition would accom-
plish this. Later, he testified the reason was because “our work-
load was down,” an assertion directly contradicted by Passman,
vice president of operations, who testified that the workload at
the time of the transition was substantially the same as before.
General Superintendent Swalley’s testimony that he was very
surprised to learn of the transition also implicitly contradicts
Calvert’s assertion that workload was a bona fide reason for the
transition. Still later in his testimony, Calvert stated that the
transition was made because he did not feel his administrative
staff could keep up with “so many employment laws and regu-
lations,” again offering no elaboration. As noted earlier, a re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1220
spondent’s offering shifting reasons for its actions frequently
reflects discriminatory motive. Cf. Central Cartridge, supra.
In conclusion, Calvert’s testimony on the transition was
wholly unreliable and utterly failed to rebut the General Coun-
sel’s prima facie case that the layoffs of employees and switch
to labor providers was motivated by legitimate business consid-
erations rather than antiunion animus.
I conclude, accordingly, that the layoffs of ELC employees
on March 14, 2003, and their having to work for ELC thereafter
through labor providers violated Section 8(a)(3) and (1).
Conclusions—Case 25–RC–10131
I recommend that the challenges to the ballots of Christine
Patterson a/k/a Christine Rossittis, Jason Dunn, Brad Krebbs,
Corey Leineweber, George Nichols, and Robert Nichols be
sustained and their ballots not opened or counted.
I recommend that Union’s Objections 2 and 3 be sustained
and that the election held on September 26, 2002, be set aside,
and a new election ordered, due to objectionable conduct of the
Respondent.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section 8(a)(1)
of the Act.
(a) Promulgated and maintained a rule prohibiting employees
from discussing or soliciting on behalf of the Union.
(b) Suggested physical violence against employees because
they supported the Union.
(c) Denigrated employees because they supported the Union.
(d) Instructed employees not to discuss the Union with other
employees.
(e) Isolated employees from other employees because of
their support for the Union.
(f) Solicited employees to quit employment because they
supported the Union.
(g) Created the impression among employees that their union
activities were under surveillance.
(h) Interrogated employees concerning their union activities
and sympathies.
(i) Told employees they would be laid off because of their
union activities.
(j) Told prospective employees they could not be hired be-
cause the Respondent’s employees had engaged in union activ-
ity.
(k) Told employees they were being laid off and would be
required to work through a labor provider because they engaged
in union activity.
4. By assigning more onerous working conditions to Jason
Dunn and Corey Leineweber; by issuing written discipline to
Demarco Thacker; by laying off employees Bruce Sanderson,
Jonathan Trinosky, and Mikalis Grunde; and by laying off all
remaining employees and requiring them to apply for employ-
ment through a labor provider, the Respondent engaged in un-
fair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(3) and
(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily laid off employees,
it must offer them reinstatement and make them whole for any
loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The General Counsel seeks an order requiring the Respon-
dent to reinstitute its practice of employing employees as it
existed prior to January 8, 2003, the date Sanderson was laid
off. Such an order is warranted, but the Respondent actually
changed its practice at the time of the transition, when it
switched to the exclusive use of labor providers. Accordingly,
March 14, 2003, is the appropriate operative date.
The General Counsel also seeks expungement from the Re-
spondent’s records of any references to the unlawful written
discipline issued to Thacker and to the unlawful layoffs of San-
derson, Trinosky, Grunde, and all remaining employees on
March 14, 2003.
The General Counsel has not requested a broad cease and
desist order.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended63
ORDER
The Respondent, E.L.C. Electric, Inc., Indianapolis, Indiana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining a rule prohibiting employ-
ees from discussing or soliciting on behalf of the Union.
(b) Suggesting physical violence against employees because
they support the Union.
(c) Denigrating employees because they support the Union.
(d) Instructing employees not to discuss the Union with other
employees.
(e) Isolating employees from other employees because of
their support for the Union.
(f) Soliciting employees to quit employment because they
support the Union.
(g) Creating the impression among employees that their un-
ion activities are under surveillance.

63 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
E.L.C. ELECTRIC, INC. 1221
(h) Interrogating employees concerning their union activities
and sympathies.
(i) Telling employees they will be laid off because of their
union activities.
(j) Telling prospective employees they cannot be hired be-
cause ELC employees engaged in union activity.
(k) Telling employees they are being laid off and will be re-
quired to work through a labor provider because they engaged
in union activity.
(l) Assigning more onerous working conditions to employees
because of their union activities.
(m) Issuing written warnings to employees because of their
union activities.
(n) Laying off employees because of their union activities.
(o) Requiring employees to apply for employment through a
labor provider.
(p) 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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Mikalis Grunde, Bruce Sanderson, Jonathan Trinosky, and
those employees laid off on March 14, 2003, full reinstatement
to their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Make Mikalis Grunde, Bruce Sanderson, Jonathan Tri-
nosky, and those employees laid off on March 14, 2003, 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.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful layoffs of
Mikalis Grunde, Bruce Sanderson, Jonathan Trinosky, and
those employees laid off on March 14, 2003, and, within 3 days
thereafter, notify each of them in writing that this has been
done and that the layoffs will not be used in any way against
them.
(d) Within 14 days of the Board’s Order, remove from its
files any reference to the unlawfully written warning issued to
DeMarco Thacker on September 26, 2002, and within 3 days
thereafter, notify him in writing that this has been done and that
the written warning will not be used in any way against him.
(e) Preserve and, within 14 days of a request, or such addi-
tional 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 re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Reinstitute its practice of employing electrical employees
as it existed prior to March 14, 2003.
(g) Within 14 days after service by the Region, post at its fa-
cility in Indianapolis, copies of the attached notice marked
“Appendix.”64 Copies of the notice, on forms provided by the
Regional Director for Region 25, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous 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 to all current employees and former employ-
ees employed by the Respondent at any time since July 12,
2002.
(h) 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 inso-
far as it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that the proceeding in Case 25–RC–
10131 be severed and remanded to the Regional Director for
Region 25 for further action consistent with this decision.

64 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”