Electric By Miller, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 2005

344 N.L.R.B. 266 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 20
266
Electric By Miller, Inc. and International Brother-
hood of Electrical Workers, Local 584, Affiliated
with International Brotherhood of Electrical
Workers, AFL–CIO. Case 17–CA–22667
February 16, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On November 3, 2004, Administrative Law Judge
George Carson II issued the attached decision. The Re-
spondent filed exceptions and a supporting 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-
ings,1 and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Electric by Miller, Inc., Mi-
ami, Oklahoma, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Frank A. Molenda, Esq., for the General Counsel.
Donald W. Jones, Esq., for the Respondent.
Mr. Roger K. Canada, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Miami, Oklahoma, on September 14, 2004, pursu-
ant to a complaint that issued on May 26, 2004, and that was
amended on August 13, 2004.1 The complaint alleges that the
Respondent interrogated and threatened employees in violation
of Section 8(a)(1) of the National Labor Relations Act (the Act)
and revoked the cell phone privileges of and discharged John R.
Carter because of his union activities and refused to hire Brent
Sloan because of his union affiliation in violation of Section
8(a)(3) of the Act. The Respondent denies all violations of the
Act. I find that the Respondent did violate Section 8(a)(1) of
the Act by threatening closure and did unlawfully discharge
Carter.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed

1 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 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.
1 All dates are in 2004 unless otherwise indicated. The charge in
Case 17–CA–22667 was filed on March 22 and was amended on May
17 and on August 11.
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Electric by Miller, Inc. (the Company), a
corporation, is an electrical contractor providing services to the
building and construction industry from its facility in Grove,
Oklahoma. The Company, in conducting its business, annually
purchases goods and supplies valued in excess of $50,000 from
suppliers located outside the State of Oklahoma. The Respon-
dent stipulated and admitted, and I find and conclude, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Inter-
national Brotherhood of Electrical Workers, Local 584, affili-
ated with International Brotherhood of Electrical Workers,
AFL–CIO (the Union) is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The Company, a nonunion contractor, is owned by President
Kathy Miller who began operating it in 2003 following a di-
vorce. Miller and her former husband had operated an electrical
company with Miller serving as business manager and her hus-
band providing the electrical expertise. On December 13, 2003,
Miller hired Mike Harrell, an electrician who possesses a con-
tractor’s license, which is required in order for a firm to operate
in Oklahoma. Harrell testified that he was operations manager.
The complaint alleges and the answer admits that he was vice
president of operations. Harrell was formerly a member of the
Union.2
In late December 2003, union member John R. Carter sought
and obtained permission from Roger Canada, organizer for the
Union, to seek work with this nonunion company. Carter was
hired on December 31, 2003. He performed various jobs, in-
cluding estimating. The alleged unfair labor practices herein all
occurred during the last week of Carter’s employment, which
ended January 16. There is a sharp dispute as to whether Carter
was fired or quit. Operations Manager Harrell’s employment
ended contemporaneously with that of Carter. Harrell, an ac-
knowledged supervisor, is not protected by the Act, and there
are no allegations relating to him. The event that immediately
preceded the terminations or quits of Carter and Harrell was a
conversation between President Miller and organizer Canada on
the morning of January 16.

2 The Respondent objected to testimony by Harrell who provided an
affidavit to the Regional Office. The parties stipulated to receipt of GC
Exh. 6, a letter from counsel for the Respondent to the Regional Direc-
tor, the Regional Director’s response pointing out that Harrell’s affida-
vit was obtained prior to when the Respondent obtained counsel, and an
Office of Special Litigation memorandum noting that Oklahoma does
not prohibit ex parte contact with former supervisors. I reaffirm my
overruling the objection to receipt of Harrell’s testimony.
ELECTRIC BY MILLER, INC. 267
B. Facts
John R. Carter testified that he was hired on December 31,
2003, by Harrell. He acknowledges speaking with President
Miller before he began work. Miller testified that she alone
made hiring decisions. Miller testified that she was not fully
satisfied with Carter’s work or conduct. She purportedly heard
that Carter had been rude when performing work at her hair-
dresser’s shop, but she did not speak to him about this. She
received a report that Carter carried a firearm in his zippered
day planner. She asked him to cease doing so. Carter testified
that he complied with her request. Miller testified that she saw
the firearm again, but there is no evidence that she mentioned
the matter. On Wednesday, January 14, Miller claims that she
requested Carter to handle an emergency call and to take with
him the two apprentices with whom he was working. Carter
testified that Miller requested that he estimate three potential
jobs, and his timesheet reports “looking at bids.” He did not
take the apprentices. Despite the foregoing alleged conduct and
disobedience, Miller took no action against Carter. When asked
why she took no action, Miller testified that “[i]t wasn’t the
right time, yet.”
Carter had, on January 7, contacted organizer Roger Canada
and asked him to meet for lunch with him and the Company’s
two apprentices, the total work force of the Company. They
met on January 14. In that meeting, Canada spoke of the bene-
fits of the Union’s apprenticeship program, and the two appren-
tices expressed interest. Because they worked for a nonunion
company, Canada did not request that they join the Union. He
did request that they sign cards authorizing the Union to repre-
sent them in dealings with the Company, and they did sign
authorization cards. Canada explained that he would need them
to provide documentation of their prior experience by Friday in
order for the apprenticeship committee to review it prior to
voting to accept them into the program. After lunch, the ap-
prentices returned to the jobsite and Carter, consistent with
Miller’s instructions, continued to survey the potential jobs.
Harrell had been in Tulsa on the morning of January 14. He
returned to Grove by way of the jobsite and discovered the
apprentices working without a journeyman. They reported to
him their meeting with organizer Canada. Their report was
garbled. Rather than reporting that there would be a vote re-
garding their acceptance into the apprenticeship program, they
reported that there would be a vote for union representation at
the Company on Friday.
When Carter returned to the company office, he was asked to
meet with Miller and Harrell. Harrell stated that he “did not
think very highly of” Carter leaving two apprentices to work by
themselves. Section 158:40-5-1 of the Oklahoma Electrical
Industry Regulations provides that “[a]pprentice electricians
must be under the direct ‘on-the-job supervision’ of a licensed
journeyman or contractor, when engaged in the work of an
apprentice.” Miller stated that “it was her fault that I had been
pulled off of the job to go look at other projects.” There was
discussion regarding obtaining another journeyman on an “as
needed” basis. Carter stated that he knew of someone and
would call him. He did so on the office telephone, and Miller
was aware of this. Miller denied that Carter named Brent Sloan,
the individual whom he called. Assuming Carter did name
Sloan, I find that Miller did not recall Sloan’s name. Carter did
not provide Sloan’s address or telephone. Thereafter, in their
meeting, Harrell stated that he “wasn’t happy with the Union
meeting that took place at lunchtime.” He reported what the
apprentices had told him regarding a vote on Friday. Carter
testified, and Miller did not deny, that Miller stated that “she
would end up locking her doors if there was a vote, and—or if
the shop tried to go Union.” Carter then explained that the re-
port Harrell had received was wrong, that the meeting related to
the apprenticeship program, and that the apprentices were to get
their documentation regarding experience to him by Friday so
he “could get it to Roger [Canada] by Friday evening, to get an
emergency meeting of the apprenticeship committee on Satur-
day, to just formalize that they could get in the apprenticeship
training.”
Following this meeting, Carter was driving to Tulsa. Sloan
returned the call that Carter had previously made. Carter, while
driving, received the call on a company cellular telephone that
he testified he had been given by Miller on one unspecified
night because “we were having phone tag problems that night.”
Carter asked whether Sloan would be interested in working on
an as needed basis if given a day or two of notice. Sloan replied
that he would. Before Carter reported that Sloan was interested,
he received a call from Harrell who told him not to have the
electrician come in the following day because there was no
work. Harrell testified that Miller had called and told him to tell
Carter not to have the electrician come in. She then asked
whether the electrician was “union.” Harrell answered that he
did not know, but assumed that he was. None of the foregoing
was communicated to Carter. Harrell simply told Carter not to
ask the electrician to come in because there was no work.
Shortly thereafter, Carter received a call from Miller repeating
what Harrell had to him, and Carter responded that Harrell had
already called and that he knew there was no work. Carter
never gave Sloan a day or time that he would be needed. Miller
called Carter again and told him “from then on, I needed to
leave the Company cell phone in the shop.” Carter acknowl-
edged that he was aware that it was company policy to leave
the cell phones “in the office at night, to charge up for the next
day.”
The following afternoon, Thursday, January 15, Miller raised
the matter of the Union. Carter again assured her that the con-
versation Canada had with the apprentices related to the ap-
prenticeship program. Harrell became involved in the conversa-
tion and suggested speaking to the apprentices, who were in the
break room playing ping-pong. Although Carter recalled that an
apprentice confirmed that the conversation with Canada related
to the apprenticeship program, I credit Harrell’s recollection
that the apprentices stated that they understood that they were
signing an agreement to organize the Company. At that point,
Carter explained that the cards they had signed were necessary
for entry into the apprentice program. Harrell and Carter con-
firm that Miller stated that she would not go Union, “I will shut
the doors before I do.”
Miller, when asked when she first learned that someone had
been “signing up cards” initially answered, “Mike Harrell told
me on Wednesday.” Miller did not address the specifics of the
Thursday afternoon conversation in her testimony. When asked
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD268
about any discussion with employees about the Union on
Thursday, she answered, “Not much about the Union, just—we
were watching them play ping-pong, mostly.” Miller did admit
that there was a conversation on Thursday afternoon, that she
stated that she could not afford to operate as a union contractor,
and that Harrell and Carter agreed with her. She did not deny
stating, “I will shut the doors.” Miller’s assertion that she could
not afford to operate as a union contractor was unsupported by
any statement relating to profitability. According to her testi-
mony, she showed figures establishing a monetary loss to
Harrell the following morning. On cross-examination, Harrell
and Carter answered that they did not perceive Miller’s state-
ments to be a threat but, rather, “a statement of the true facts.”
When asked whether what Miller stated, “was a true fact,”
Carter answered, “As far as I knew, that was a true fact, yes
sir.” There is no evidence that Miller advised Carter of any
objective facts relating to the financial condition of the Com-
pany.
Harrell said that he would call Canada and ask him to meet
to explain the situation. Miller did not object. Harrell called
Canada who said he would come by “first thing” the following
morning. Whether Miller invited Harrell and Carter to join her
for drinks at the VFW Post after work is of no significance. It is
undisputed that there was a meeting the following day.
On Friday, January 16, Harrell testified that he was late and,
shortly after arriving, became involved in a telephone conversa-
tion. Miller claimed that both she and Harrell were at work on
time and that she had a conference with Harrell in which she
showed him the profit and loss figures since his employment
began and informed him that he “needed to do better.” Carter
arrived around 7 a.m. He observed Miller arrive shortly before
Canada.
Canada arrived at a little before 9 a.m. He observed Miller
entering the office building. Harrell was on the telephone.
Carter and Canada waited for Harrell in front of the building.
Harrell joined them and explained that Miller was concerned
about the Union seeking to organize her Company. Canada
stated that the cards the apprentices had signed were “no big
deal.” He showed Harrell a draft “small works agreement” for
smaller contractors that set wage rates at 20 to 25 percent less
than the contractual wage rate. Harrell noted that the Company
was paying more than that, and Canada asked whether the
Company was paying any benefits. Harrell replied, “No.” They
then went inside where Harrell introduced Canada to Miller.
Harrell recalled that Canada began talking to Miller about
the apprenticeship program, and she responded that she was
“not going to be organized . . . . I will shut the business down.”
Harrell recalled asking Miller to “listen to what Roger [Canada]
has to say,” and that Canada tried to give her some information
to look over, but she wouldn’t take it. Harrell left. Later, he
heard Miller tell Canada to please leave, that she was going to
shut her business down.
Carter recalls that, immediately after Harrell introduced
Canada to Miller, she stated, “I am not signing anything. I don’t
want to be Union. I am not going Union.” He heard Canada
reply, “That is not what I am up here to do. I am up here to try
to help and get this smoothed over.” As Canada was asking
Miller to look at the draft of the small works agreement, Carter
left. He recalls that Harrell followed him. They went to
Harrell’s office. About 5 minutes later, Miller went to the back
of the building and, after 2 minutes, returned and asked Canada
to leave, stating that “she was closing out her business and
shutting her doors.”
Canada recalled that at the beginning of their conversation
Miller informed him that she was “not going to sign anything.”
Canada responded that the Union did not want her to sign any-
thing, that the Union understood that she could not afford to do
so, that Harrell had asked him to come to meet her. He at-
tempted to show her the small works agreement, but she re-
fused. Miller, who Canada believed was becoming emotional,
repeated that she was not going to sign anything and would go
out of business. Canada responded, “Ms. Miller, we don’t want
you to sign anything,” and explained that the Union wanted to
provide competent journeymen to “show what we have to of-
fer,” that the Union was “not ready for you to sign anything . . .
[that] [a]ll we are here to do is help.” Canada recalled that
Harrell came into the room to “try to settle things down,” and
asked him how long the Union would provide journeymen, and
that he replied, “We can work with Ms. Miller however long it
takes, as long as . . . the Union does not feel that it is being
taken advantage of.” Miller left the office and walked to the
back of the building. She returned and went to a file cabinet and
then asked Canada to leave, stating that she was going “to shut
her doors.”
Miller testified that Canada began the meeting by asking
whether she knew the apprentices had signed “some cards.”
Miller says she responded, “No, what do you mean?” Canada
said that it meant “you are a Union shop.” Miller states that she
answered that she did not know what Canada was talking about
and did not believe that “my guys signed anything.” Canada
told her to ask them. She testified that she went to find them,
but only located one apprentice who told her that he had signed
“what looked like a magazine subscription card to get some
information about the school.” Miller returned to the office and
stated to Canada that she did not know what to do because she
did not “know anything about the Union.” She testified that
Canada informed her that she would have to close and “put an
NLRB sign on my front door,” and that she “couldn’t re-open
for six months.” Miller testified that she was crying. She told
Canada that she did not know what he was talking about, that
he lunged across her desk saying, “We are here to help you.”
She responded that she did not want his help and that she did
not know what was going on. At that point, Canada left. Miller
testified that Canada had some documents in his front shirt
pocket but that he said noting about them. When asked whether
she knew why Canada told her she would have to close, she
answered, “I don’t know.”
The foregoing versions of the meeting, although differing in
detail, establish that Canada, although advised by Harrell that
Miller was concerned about the Union’s organizational objec-
tives, sought to get her to commit to use electricians supplied
by the Union. Although Canada, in his testimony, sought to put
the best face possible upon the presentation that he made to
Miller, his attempt to show her the small works agreement, his
offer to “show what we have to offer,” and his reference to
working with her for “however long it takes, . . . as long as the
ELECTRIC BY MILLER, INC. 269
Union does not feel that it is being taken advantage of,” reveal
an ultimate, although not immediate, organizational objective.
Whether Canada told Miller that she was “a union shop,” he
certainly implied that the Union wanted her Company to be-
come a union shop in the future. Miller’s testimony that Harrell
and Carter agreed with her that she could not afford to operate
as a union shop on Thursday and that, on Wednesday, Harrell
had mentioned “signing up cards” belie her denial to Canada
that she knew nothing about the signing of cards and her asser-
tions that she did not “know anything about the Union” or what
he was talking about. I credit Canada and find that, even though
he never asked Miller to sign anything, she stated that she was
not going to sign anything and was going “to shut her doors.” I
do not credit Miller’s testimony that Canada told her she would
have to close for 6 months and post an NLRB sign on the door.
Harrell testified that about 15 or 20 minutes after Canada
left, Miller came to his office where he and Carter were confer-
ring regarding their work. She said, “Mike, you and J. R. pack
your things. You need to get out of here. I am shutting my
business down.” Harrell began packing his belongings. As he
was doing so, he contemplated what he would do next. Think-
ing that he might bid a project himself, he approached Miller
and asked if he could purchase from her the drawings that he
had recently obtained in Tulsa. Miller replied that he could not,
that she would bid the jobs herself, “I am staying in business.”
Carter corroborated Harrell, testifying that Miller came to
Harrell’s office and told them that “she was closing down the
business and locking her doors, and [to] pack our tools and get
off of the premises.”
Miller denied informing Harrell and Carter that she was clos-
ing. She testified that she asked Harrell what they should do,
that Harrell replied, “We’ll have to close down,” and that “they
started moving out their furniture.” Harrell had brought a desk
with him when he was employed. There is no evidence that
Carter had any furniture.
Mary Rayburn, who keeps the books for the Company, testi-
fied that Miller asked her to be present at 10 a.m. on Friday in
order to attend the meeting with Canada. When she arrived,
Miller was “distraught.” Miller told her that Canada, who had
departed, had come at 9 instead of 10 a.m. Rayburn says she
overheard a conversation in which Miller asked Harrell, “What
are we going to do?” and that he replied, “If it were me, I
would shut the doors and open back up the next day, under a
different name.” Rayburn mentioned nothing about Harrell
beginning to move his furniture out. She was asked whether she
discussed or heard what Harrell’s “status was going to be.”
Rayburn answered, “At that time, I don’t recall.” She did recall
that Miller later told her that Harrell was leaving. She did not
mention Carter being present.
I do not credit Rayburn and Miller. The fact that Miller
asked Rayburn to be present establishes that she did not trust
Operations Manager Harrell. Her claim that she asked for ad-
vice regarding what to do from Harrell, whom she did not trust,
is incredible. Her alleged claim of asking for advice is even
more unbelievable if I were to credit her assertion that she had,
2 hours earlier, met with Harrell and informed him that he
“needed to do better.” According to Miller, after Harrell gave
his advice “to close down,” he and Carter “started moving out
their furniture.” Rayburn mentioned nothing about anyone
starting to move anything.
Miller, in an entry dated January 16 in Harrell’s personnel
file, wrote, “We were told by Mr. Canada that because we are
refusing to sign the contract we would have to close. Mike
packed up his stuff and left.” The entry in Carter’s file dated
January 16 reports that “Roger [Canada] came and said unless I
sign the contract we would have to close our doors. J. R.
packed up all of his tools and left.” Neither entry reports any
conversation in which Harrell purportedly told Miller what she
should do. Miller testified that, although Canada had a paper in
his pocket, he did not mention it. She did not testify to any
demand by Canada that she sign a contract or anything else.
She did not testify that she refused to sign anything, although
Canada credibly testified that, although never asked to sign
anything, Miller stated throughout the meeting that she was not
going to sign anything.
Miller’s credibility is further undermined by the purported
contemporaneous notes that she testified she made regarding
Carter’s various derelictions. An entry dated January 2 reports
that one of the apprentices informed her that Carter was carry-
ing a firearm on his person and in the company van “at all
times.” The entry continues, reporting that Carter brought
“what looked like a zippered day planner into the office every
day. One day he unzipped the bag and showed me the gun.”
Carter’s employment began on December 31, 2003. The refer-
ences to “at all times,” “every day,” and “one day” belie an
entry contemporaneously made on January 2, the day following
New Years Day and only 2 days after Carter’s employment
began.
I credit Carter and Harrell and find that Miller informed
them that she was closing the business and that they were to
leave. Despite telling Carter and Harrell that she was closing,
Miller continued to operate. Neither apprentice was terminated.
Miller hired two journeyman electricians, Leon Jackson and
Levi Kirkwood, on January 22.
On Friday, January 16, Brent Sloan went to organizer Can-
ada for permission to work at Electric by Miller. Canada told
him to “hold up . . . because things aren’t going very well
there.”
C. Analysis and Concluding Findings
1. The 8(a)(1) allegations
The complaint alleges that the Respondent threatened to
close if the employees selected the Union as their collective-
bargaining representative, announced that it was closing be-
cause of the employees’ union activities, informed employees
that it would be futile to select the Union as their collective-
bargaining representative, and interrogated employees regard-
ing their union membership and sympathies. There is no evi-
dence of a separate threat of futility. The General Counsel ar-
gues that the threats of closure also constituted threats of futil-
ity. I find that the far more serious threats of closure subsume
any implied threat of futility. There is no evidence of any inter-
rogation on January 14 when the apprentices informed Harrell
of their meeting with Canada. There is no evidence of any co-
ercive interrogation on the afternoon of January 15 when em-
ployee Carter attempted to clarify that Canada’s dealings with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD270
the apprentices related to the apprenticeship program. The only
evidence of interrogation on January 16 is Miller’s testimony.
In Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), when
commenting upon the Board’s adoption in Rossmore House,
269 NLRB 1176 (1984), of the case by case analysis set out in
Blue Flash Express, 109 NLRB 591 (1954), the Board noted
that, in Blue Flash no coercion was found where “unit mem-
bers, whose sympathies were unknown to the employer, were
individually questioned by the employer in an attempt to evalu-
ate the union’s claim of majority status.” The only testimony
before me is that Miller, who had been assured by employee
Carter on Thursday that what the apprentices signed related to
the apprenticeship program. Whatever Canada said prompted
her to speak with an apprentice regarding what he had actually
signed. Neither apprentice testified. The General Counsel has
failed to establish that any questioning by Miller was coupled
with a threat or was otherwise coercive. I shall recommend that
the allegations of futility and interrogation be dismissed.
Threats of closure constitute “hallmark” violations of the
Act. General Fabrications Corp., 328 NLRB 1114 (1999).
Miller did not deny stating to Carter on Wednesday, with no
reference to economics, that “she would end up locking her
doors if there was a vote, and—or if the shop tried to go Un-
ion.” On Thursday, without citing any financial data, Miller
stated that she could not afford to go Union and “I will shut the
doors before I do.” The testimony of Carter and Harrell that
they did not consider that statement to be a threat but “true
facts” does not alter their coercive effect. “[W]hat is important
is not any witness’ subjective mental response to an alleged
threat, but, rather, whether or not on an objective basis the al-
leged threat should be viewed as tending to coerce. The fact
that a threat may not succeed in actually frightening its subject
is largely irrelevant.” Norton Concrete Co., 249 NLRB 1270,
1274 (1980). I find the foregoing constituted threats of closure
in violation of Section 8(a)(1) of the Act. On Friday, Miller
falsely stated to Harrell and employee Carter that she was clos-
ing the business. In falsely stating that she had closed the busi-
ness in order to discharge employee Carter, the Respondent
violated Section 8(a)(1) of the Act.
2. The refusal to hire Brent Sloan
The complaint alleges that the Respondent refused to hire
Brent Sloan because of his union affiliation. Sloan never ap-
plied for work with the Respondent. Carter inquired whether
Sloan would be willing to work on an as needed basis if he was
given notice in advance regarding when he would be needed.
He replied that he would be. Sloan was not given a report date
or time. It is undisputed that there was no work available for
him on Thursday or Friday, January 15 and 16. The only con-
tact by the Respondent with Sloan was by Carter, acting on
behalf of Miller pursuant to his suggestion. The Respondent did
not have Sloan’s address or telephone number. The General
Counsel’s brief does not address the undisputed evidence that,
on Friday, union member Sloan went to organizer Canada for
permission to work at a nonunion company. Canada told him to
“hold up . . . because things aren’t going very well there.”
Sloan complied with the direction to “hold up.” He did not
thereafter contact the Respondent, and the Respondent had no
application from him. I shall recommend that this allegation be
dismissed.
3. The discharge of Carter
The Respondent argues that Carter was a supervisor under
the Act because Oklahoma regulations require that apprentices’
work be supervised by certified electricians and because he
effectively recommended that Sloan be employed. Miller testi-
fied that no one did hiring for the Company other than herself.
There is no probative evidence contradicting that testimony. An
employee’s suggestion of persons for employment does not
establish “discretion to make hiring decisions.” Adscon, Inc.,
290 NLRB 501 (1988). Miller directed the work force, meeting
with employees in a morning “huddle” regarding the plan for
the day, and she scheduled the remainder of the week so that
she would “know what I can send them on.” Oversight, “‘the
way a journeyman would tell an apprentice’ what to do,” does
not establish supervisory authority as defined in the Act. Deb-
ber Electric, 313 NLRB 1094, 1096 (1994). There is no proba-
tive evidence that Carter was a supervisor.
The Respondent’s answer alleges that the Union sought to
place “union agents in managerial positions” and “entrap the
Employer.” The Respondent’s brief argues that the Union
“fraudulently” induced the apprentices to sign authorization
cards and is engaging in the “fraudulent . . . use of . . . NLRB
charges.” No apprentice testified. There is no evidence that
Operations Manager Harrell was an agent of the Union. A su-
pervisor’s philosophical support or opposition towards employ-
ees’ exercise of Section 7 rights is immaterial. Section 8(c) of
the Act provides that the expression of opinion, unaccompanied
by threats or promises, does not violate the Act. The Act is
violated when an employer interferes, restrains, or coerces em-
ployees with regard to their right to choose to engage in pro-
tected activity or to choose not to do so. The Board has, for
over a decade, rejected arguments that “salting” constitutes
entrapment. Sunland Construction Co., 309 NLRB 1224, 1225
at fn. 12 and 1246 (1992).
The parties, at various times, mentioned charges filed by the
Respondent and a charge filed by the Union alleging that the
termination of Harrell was unlawful. Those charges are not the
subject of a complaint and are not before me. They are not rele-
vant to this proceeding.
In assessing the evidence under the analytical frame work of
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), I find that Carter, who arranged and attended the
meeting between Canada and the apprentices, was engaged in
union activity and that the Respondent was aware of that activ-
ity. Animus is established by Miller’s statements that she would
lock “her doors if there was a vote, and—or if the shop tried to
go Union” and would “shut the doors.” The Respondent’s as-
sertion that its position was based upon economic rather than
philosophical grounds does not alter the existence of antiunion
animus. Carter’s termination was an adverse action affecting
his employment. I find that the General Counsel has carried the
burden of proving that union activity was not only a substantial
and motivating factor for Respondent’s action, but was the
motivating factor for its action. Manno Electric, 321 NLRB 278
ELECTRIC BY MILLER, INC. 271
(1996). The Respondent has not rebutted the General Counsel’s
prima facie case.
The Respondent contends that Carter quit, that he and
Harrell simply packed up their equipment and left following
Miller’s meeting with Canada. In a letter dated October 21,
2004, 2 days after its brief was filed, the Respondent cites Na-
tions Rent, Inc., 342 NLRB 179, decided on June 29, 2004, and
states that Nations Rent held that “the General Counsel pre-
sented no evidence to show that the employee, after being
aware that the Respondent persisted in the view that the em-
ployee had left on his own, took any steps to claim or notify the
employer that he had not in fact left of his own free will.” I
disagree. Nations Rent involved an employee, Bickel, who
stated to the respondent that he was going on strike and then
stated, “I’m gone.” When Bickel received a letter accepting his
resignation, he wrote the respondent “emphatically stating that
he had not resigned,” and the respondent did not respond. Thus,
“the respondent’s acquiescence in Bickel’s last word” negated
the conclusion that he had been discharged. Id., slip op. at 2. In
this case, there was no correspondence. The Union filed a
charge alleging discharge, as does the complaint. The Respon-
dent’s defense is that Carter quit. I have not credited Miller’s
testimony in that regard. Nations Rent is inapposite.
The Respondent further contends that the Respondent would
have discharged Carter at some undetermined time in the future
because of his conduct including rudeness to a customer, carry-
ing a gun, and disobeying Miller’s directive by leaving the
apprentices. Miller’s testimony that “[i]t wasn’t the right time,
yet,” in response to the question, “So, why wasn’t he gone be-
fore January 16?” establishes that none of the foregoing pur-
ported derelictions, even if established, were viewed by Miller
as justifying discharge. There is no probative evidence relating
to rudeness. I have credited Carter’s testimony that he ceased
carrying a firearm when requested to do so as well as his testi-
mony that he left the apprentices when Miller directed him to
survey potential jobs. I reject any contention that Carter would
have been terminated at some undetermined time in the future
for reasons unrelated to his union activity, all of which reasons
purportedly existed prior to his termination on January 16.
It is undisputed that the Respondent began hiring new em-
ployees the week following Miller’s falsely telling Carter that
she was closing the business. The Respondent, by discharging
Carter because of his union activities, violated Section 8(a)(3)
of the Act.
The complaint also alleges that the Respondent discriminato-
rily revoked the cell phone privileges of Carter. Carter admitted
that it was the Respondent’s policy that cell phones be left at
the facility overnight in order to be charged. He was, on one
occasion, told to take a cell phone because “we were having
phone tag problems that night.” Miller’s reminder that “from
then on, I needed to leave the Company cell phone in the shop,”
simply confirms that she made a one-time exception to that
policy. I shall recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. By threatening its employees with closure of the business
if they selected the Union as their collective-bargaining repre-
sentative and falsely announcing closure of the business in
order to effectuate the discharge of a prounion employee, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. By discharging John R. Carter because of his union activi-
ties, the Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain 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 discharged John R.
Carter, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from January 16, 2004, 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).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Electric by Miller, Inc., Grove, Oklahoma,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with closure of the business if
they selected the Union as their collective-bargaining represen-
tative and falsely announcing closure of the business in order to
discharge an employee who engaged in activities on behalf of
the Union.
(b) Discharging employees because of their activities on be-
half of the International Brotherhood of Electrical Workers,
Local 584, affiliated with International Brotherhood of Electri-
cal Workers, AFL–CIO, or any other labor organization.
(c) 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 this Order, offer John R.
Carter full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD272
(b) Make John R. Carter whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful termination, and within 3
days thereafter, notify John R. Carter in writing that this has
been done and that the termination will not be used against him
in any way.
(d) 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 determine the amount of back-
pay due under the terms of this Order.
(e) Mail to all former employees employed by the Respon-
dent at any time on or after January 14, 2004, and post at its
office and jobsites in and around Grove, Oklahoma, copies of
the attached notice marked “Appendix.”4 Such notice shall be
mailed to the last known address of each former employee.
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 17, after being signed by the Respondent’s au-
thorized representative, shall be mailed within 14 days after
service by the Region and shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

4 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.”
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten that we will close the business if you
select the Union as your collective-bargaining representative or
announce that we have closed the business in order to discharge
any of you who choose to engage in activities on behalf of the
Union.
WE WILL NOT discharge any of you because of your activities
on behalf of the International Brotherhood of Electrical Work-
ers, Local 584, affiliated with International Brotherhood of
Electrical Workers, AFL–CIO, or any other labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce any of you in the exercise of your rights guar-
anteed by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, offer John R.
Carter full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed, and WE WILL make him whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against him, in the manner set forth in the remedy sec-
tion of the decision.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the termination of John R. Carter and,
within 3 days thereafter, notify him in writing that this has been
done and that the termination will not be used against him in
any way.
ELECTRIC BY MILLER, INC.