Electro-Tec, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1993

310 N.L.R.B. 131 (N.L.R.B. 1993)

131
310 NLRB No. 16
ELECTRO-TEC, INC.
1 On April 30, 1992, Administrative Law Judge Richard H.
Beddow Jr. issued the attached decision. The Respondent filed ex-
ceptions and a supporting brief and the General Counsel filed a mo-
tion to strike the Respondent’s brief and exhibits and, in the alter-
native, an answering brief. The General Counsel’s motion to strike
the Respondent’s brief is denied. Although the brief does not con-
form exactly to Sec. 102.46(b) of the Board’s Rules and Regulations,
it is not so deficient as to warrant striking. The General Counsel’s
motion to strike the Respondent’s exhibits, however, is granted, inas-
much as the exhibits consist of documents which were not admitted
into evidence at the hearing and are not, therefore, part of the record
in this proceeding. Today’s Man, 263 NLRB 332, 333 (1982).
The Respondent’s request for oral argument is denied as the
record, exceptions, and briefs adequately present the issues and the
positions of the parties.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In his Statement of the Case, the judge observes that the Respond-
ent used profanity in its answer. However, the Respondent correctly
notes that the judge allowed the Respondent to amend its answer by
withdrawing such profanity, so as to remove it from the record. The
judge’s error does not affect his ultimate findings and conclusions.
3 In his Conclusions of Law, the judge finds that the Respondent
violated Sec. 8(a)(1), (3), and (4) of the Act by laying off employee
Munn. We find it unnecessary to reach the 8(a)(4) finding with re-
spect to Munn. In light of our adoption of the judge’s 8(a)(4) finding
with respect to employee Ketola, any such finding with respect to
Munn would be cumulative. Furthermore, because we adopt the
judge’s 8(a)(3) finding regarding Munn, an 8(a)(4) finding would not
affect the remedy for the Respondent’s unfair labor practices involv-
ing Munn.
4 In his discussion of the issues, the judge found that the Respond-
ent violated Sec. 8(a)(1) of the Act by asking employee Ketola if
he was considering dropping unfair labor practice charges filed
against the Respondent with the Board. However, the judge failed
to include this finding in his Order and notice. The judge also failed
to include the 8(a)(4) violations in his notice. We have modified the
Order and notice to correct these inadvertent errors.
5 Member Raudabaugh notes that the record does not indicate that
any of the applicants for employment with the Respondent were paid
union organizers. He, therefore, finds it unnecessary to apply the
analysis set forth in his concurrence in Sunland Construction Co.,
supra.
Electro-Tec, Inc. and Gary K. Ketola and Inter-
national Brotherhood of Electrical Workers,
Local Union No. 219, AFL–CIO. Cases 30–CA–
11148, 30–CA–11148–2, 30–CA–11148–3, and
30–CA–11322
January 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present the question, inter alia, whether the judge cor-
rectly decided that the Respondent violated Section
8(a)(1) and (3) by discriminatorily refusing to hire job
applicants due to their union sympathies.
The Board has considered the exceptions in light of
the record and briefs and has decided to affirm the
judge’s rulings, findings,2 conclusions as modified,3
and to adopt his recommended Order as modified.4
The judge found, and we agree, that the General
Counsel established a prima facie showing that the Re-
spondent violated Section 8(a)(3) and (1) by refusing
to hire applicants because of their union sympathies
and activities. We also agree with the judge’s conclu-
sion that the Respondent failed to establish that it
would not have hired these applicants even in the ab-
sence of their union sympathies. In this regard, we
note that the Respondent asserted as a defense before
the judge that the applicants were organizers sent by
the Union to apply for jobs rather than bona fide appli-
cants. Even if the record had established that the appli-
cants for employment with the Respondent were paid
union organizers, they would nonetheless be bona fide
applicants against whom the Respondent could not dis-
criminate. See Sunland Construction Co., 309 NLRB
1250 (1992).5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Electro-Tec, Inc., Iron Mountain, Michigan, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Interfering with, restraining, or coercing its job
applicants or employees in the exercise of the rights
guaranteed in Section 7 of the Act by interrogating
them concerning their union sympathies and activities;
by asking employees or applicants who may have filed
charges with the National Labor Relations Board if
they are considering dropping such charges; by issuing
written warnings; and by denigrating an applicant or
employee’s abilities and paying less than promised or
prevailing wages.’’
2. Insert the following as paragraph 1(d) and reletter
the subsequent paragraph.
‘‘(d) Discharging or otherwise discriminating against
employees or applicants because they have filed
charges or given testimony under the National Labor
Relations Act.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
132 DECISIONS 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT terminate or lay off any employees,
fail or refuse to recall them from layoff, or otherwise
discriminate against them in retaliation for engaging in
union activities or other protected concerted activities.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act by coercively interrogating job appli-
cants or employees concerning their union sympathies
and activities, or those of other employees; by asking
employees or applicants who may have filed charges
with the National Labor Relations Board if they are
considering dropping such charges; by issuing written
warnings; or by denigrating an applicant or employee’s
abilities and paying less than promised or prevailing
wages.
WE WILL NOT discriminatorily fail and refuse to hire
job applicants because of their union activities or sym-
pathies.
WE WILL NOT discharge or otherwise discriminate
against employees or applicants because they have
filed charges or given testimony under the National
Labor Relations Act.
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 offer Grover Munn and Gary K. Ketola
immediate and full reinstatement and make them
whole for the losses they incurred as a result of the
discrimination against them and expunge from our files
any reference to the warning given to Munn and notify
him in writing that this has been done and that evi-
dence of the unlawful warning will not be used as a
basis for future personnel action against him.
WE WILL offer John Blomquist, Dan Harger, and
Jim Hoots preferential employment and make them
whole, with interest, for any loss of earnings and other
benefits resulting from our discriminatory hiring of
other employees.
ELECTRO-TEC, INC.
Rocky L. Coe, Esq., for the General Counsel.
James Pouliot, of Iron Mountain, Michigan, appearing pro
se, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Kingsford, Michigan, on December 9
and 10, 1991. Subsequently, briefs were filed on the due day
of February 14, 1992, by the General Counsel and by a
pleading received February 18, 1992, but dated and post-
marked February 5, 1992, by certified mail to the proper ad-
dress by the Respondent. Respondent failed to serve any cop-
ies of its brief on either the General Counsel or the Union,
however, it did send copies to an otherwise unidentified firm
in Madison, Wisconsin, and to two offices of the Michigan
attorney general. It also failed to file the required number of
copies (two) with its original. In response to an inquiry from
the chief judge, the appropriate copies were received on
March 5, 1992. In addition to the copies of its brief, Re-
spondent also enclosed (1) a copy of a late-filed appeal to
the Board’s General Counsel, Office of Appeals, which chal-
lenged the Board’s failure to issue a complaint in Cases 30–
CB–3366, 30–CC–503, and 30–CP–87 which it had filed
against the Union (in relation to the matters arising out of
the instant proceeding); (2) a photocopy of the General
Counsel’s brief on which it had highlighted certain portions
and written various comments of its own between the line or
in the margins; and (3) enclosed various documents referred
to in the General Counsel’s brief as relevant subpoenaed doc-
uments that it had failed to produce at the hearing in re-
sponse to the General Counsel’s subpoena.
Although the General Counsel had no way of knowing
about the latter three items, it did learn that an original brief
had been filed and by pleading dated March 6, 1992, moves
to strike Respondent’s brief because of Respondent’s non-
compliance with Section 102.42 of the Board’s Rules and
Regulations which provides that:
three copies of the brief or proposed findings and con-
clusions shall be filed with the administrative law
judge, and copies shall be served on the other parties,
and a statement of such service shall be furnished.
The General Counsel argues that although Respondent is
a layman and appeared pro se, that is no reason to allow his
improperly filed brief and submits that this failure to serve
General Counsel was not inadvertent or even negligent, but
rather a continuation of Respondent’s blatant disrespect and
flaunting of the Board’s processes.
In this regard, the record shows that Respondent used pro-
fanity in its answer to the complaint allegations that the court
refused to accept without amendment. A similar profane ab-
breviation was used in a marginal note on the enclosure of
its marked copy of the General Counsel’s brief.
133ELECTRO-TEC, INC.
1 All following dates will be in 1990 unless otherwise indicated.
Otherwise, it is noted that the complaint in these pro-
ceedings specifically calls attention to the Board’s Rules and
Regulations and notifies Respondent that it shall serve copies
on each of the other parties and that Respondent did in fact
send its request for an extension of the brief date to the in-
volved Regional Office, thereby indicating it was aware of
how it could comply with the Rules.
By letter dated March 10, 1992, Respondent replied to the
General Counsel’s motion and urges that it be denied be-
cause it is a small electrical contractor lacking the time and
resources required to be technically correct. The letter indi-
cates that copies were sent to the General Counsel and to
United States Senator Carl Levin of Michigan, however, no
copy was served on the Charging Party.
Respondent’s tendered brief is a short, three-page docu-
ment that contains no discussion or disagreement with the
General Counsel’s’ factual presentation and it contains no
legal arguments or citations. It does contain the following
passage:
What are our opinions concerning these charges!!
1. It is not the right of an individual to organize and
have representation which we are in disagreement with.
It is the way a third party can ‘‘use’’ the individual to
co-erce a non-union contractor into ‘‘signing an agree-
ment or else.’’ We believe this to be dangerous to our
free enterprise system and the democratic process.
Here, Respondent’s brief not only fails to meet basic pro-
cedural requirement, but its contents also fail to present any-
thing of value that would aid in the evaluation of the record
and the applicable law. In substance, Respondent’s brief es-
sentially expands on its position that it disagrees with the
statutory rights granted employees under the National Labor
Relations Act because it interferes with its own exercise of
‘‘free enterprise.’’
Under the circumstances, good cause is shown that war-
rants a granting of the General Counsel’s motion. The addi-
tional materials discussed above filed with Respondent’s ad-
ditional copies of its brief on March 5, 1992, are not prop-
erly part of the record and, accordingly, Respondent’s ten-
dered brief and all such materials tendered with it are hereby
stricken from the record.
The proceeding is based on charges filed October 22 and
23, 1990, and February 6 and April 15, 1991,1 as amended,
by International Brotherhood of Electrical Workers Local
Union No. 219, AFL–CIO. The Regional Director’s com-
plaints consolidated by Order dated July 11, 1991, alleges
that the Respondent, Electro-Tec, Inc., Iron Mountain, Michi-
gan, violated Section 8(a)(1) and (3) of the National Labor
Relations Act by refusing to hire Gary Ketola for discrimina-
tory reasons; by refusing to hire other qualified applicants
because of their union sympathies or affiliation; by intimi-
dating, coercing, and underpaying Gary Ketola because of
his involvement in Board charges and testimony to the
Board; and by laying off known union organizers Gary
Ketola and Grover Munn and systematically failing to hire
applicants Dan Harger, John Blomquist, and James Hoots be-
cause of suspected union sympathies.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is an electrical contractor in the upper Michi-
gan area. It annually purchases and receives goods and mate-
rials valued in excess of $50,000 indirectly from points out-
side Michigan and I find that at all times material is, and has
been, an employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is a small electrical contractor co-owned by
Douglas Edlund and James Pouliot, who acts as its principal
spokesman. During 1991, it contracted for between 250 and
300 different jobs and it generally had between five and
seven employees besides the owners who also worked in the
field.
On June 8, 1989, the Union sent a letter to the Respondent
noting that it had learned Respondent was bidding on a Vet-
erans Administration Medical Center construction job and it
advised Respondent that if the contract was awarded, the
Union would seek to assure that Respondent complied with
the prevailing wage provision of Public Act 166 of 1965.
Thereafter, the Union also communicated with Respondent
about the possibility of recognition but Respondent declined.
In January 1990, co-owner Edlund promised Gary Ketola
a job with a starting wage of $6 per hour when work started
at a new bank construction site. Unknown to Ketola, Edlund
then investigated Ketola’s work activity while he was em-
ployed at Dory Electric. Edlund was informed by Dory Elec-
tric that Ketola was a good worker but also learned that
Ketola sympathized with and was involved in supporting the
union. Thereafter, Edlund told Ketola what he had heard,
told him he did not need that trouble and did not hire him,
despite the earlier promise.
Grover Munn testified that on October 5, 1990, when he
applied for a job, co-owner Pouliot told him that Respondent
was having problems with the Union sending people over to
put in applications and that if they caught anyone else he
would like to kill them. Pouliot then asked Munn what he
thought of the Union and blamed the Union for inflicting
damage to a tire at the bank jobsite. Munn answered that the
Union had both good and bad points and then was inter-
viewed by Edlund who asked him if he worked for the
Union. When he answered no, he was hired at $6.50 an hour.
On October 11, 1990, the Union addressed a letter to Re-
spondent recommending John Blomquist for employment
with an offer to assist in any additional training he might re-
quire and also noting that any union organization he might
choose to engage in would be strictly within the law and
would not interfere with his productivity.
Ketola testified that around October 18, 1990, Edlund told
him ‘‘they had work all along for me, but they got wind that
I was in the union and he [Edlund] said no contractor needs
that.’’ Shortly after the October 18 conversation with Edlund,
the charges were filed which contended that Respondent re-
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fused to hire Ketola for unlawful reasons. Around October
26, Ketola began to leaflet Respondent at the jobsite, alleging
that Respondent refused to hire him because of his union
sympathies/activities.
On November 2, the Union sent Respondent a letter (re-
ceived by Respondent on November 5) notifying it that
Munn was going to be an organizer on the Union’s behalf.
In response, Edlund passed out a copy of the letter (which
also mentioned John Blomquist, Ketola, and Daniel Harger
as job applicants who had given testimony to a Board agent)
to all of its employees. Munn began to wear a union hat, but-
ton, and jacket at work and he talked to employees about the
Union while on break.
On November 7 or 8, 1990, Respondent gave Munn a
written warning for attendance. However, neither Munn nor
anyone else had previously been warned or apprised of any
attendance problem or policy.
Pouliot testified it was their policy to give a verbal warn-
ing before any written discipline but this was not done with
Munn, and Edlund admitted that even though other employ-
ees had been absent, Munn was the first person in 6 years
to be disciplined by Respondent for absenteeism.
In late December 1990, Edlund told Munn ‘‘that he might
be losing his job because the union was pushing to get Gary
Ketola on Respondent’s payroll’’ and asked ‘‘why wasn’t he
upset about this.’’
On January 16, 1991, even though there was still an esti-
mated 2 weeks of work at the jobsite he was working on (not
the jobsites Ketola subsequently was sent to), Munn was laid
off and given a slip stating that it was for lack of work.
Munn stopped in later at Respondent’s office to ask about
work and was told by Edlund that Respondent did not know
what was going on with the Union and Gary Ketola and that
‘‘every time he turned around they [the Board] was nailing
him . . . so it was up in the air about any kind of work [for
Munn].’’
On January 21, 1991, Pouliot called Ketola to Respond-
ent’s office. First, Pouliot asked Ketola if he was thinking
about dropping the charges; however, Ketola did not answer.
He told Ketola that Munn was better and said that Ketola
was worth only $4.50 per hour and that he did not under-
stand why somebody would want to work there when they
were not wanted. Pouliot asked him why he had to hire
someone they did not want but then offered him a job at $5
per hour ($1 less than what Edlund had promised him in Jan-
uary 1990).
Ketola, who was unemployed, accepted and began to work
for Respondent on February 4, 1991. He immediately began
to wear a union pin (and was observed by Pouliot) and at-
tempted to organize Respondent’s employees as had Munn.
Ketola abruptly was laid off at the end of the week on Feb-
ruary 8 at 3:20 p.m. and was not allowed to finish pulling
in 100 feet of work that remained and Edlund said he would
do it himself. He did not work at the bank jobsite described
below. After his layoff by Respondent, Ketola subsequently
obtained work in the Green Bay, Wisconsin area as a ‘‘white
card’’ journeyman electrician.
Just prior to Ketola’s hiring, Respondent called another
contractor, Dory Electric, and found that their employee
Brian Hartwell was available (and Pouliot was aware of his
qualifications). Respondent then hired Dory Electric as a sub-
contractor to supply one man at $16 an hour. Hartwell (who
received about $11 an hour including benefits from Dory)
worked with Mike Demko and one other employee at the
First National Bank jobsite where Respondent was paying
Demko about $11 an hour. Demko had started with Respond-
ent in 1985 at about $5 an hour (he then had some schooling
but no construction experience). Demko obtained additional
training and experience, became a master electrician, and left
Respondent shortly thereafter (in the spring of 1991) to be-
come self-employed. Hartwell said he did ‘‘wiring’’ at the
bank for 6 to 8 weeks, a job that involved ‘‘just following
the blueprints.’’
In the spring of 1991, Blomquist called Pouliot and asked
for work. Pouliot said he was not hiring but he could fill out
an application.
Daniel Harger (on April 22, 1991) and James Hoots (on
May 31, 1991), also filled out applications. Pouliot asked
Blomquist how much he wanted and Blomquist said it was
negotiable but he was never called by Respondent.
Pouliot has known Blomquist for years and although he re-
luctantly admitted Blomquist had told him he was a journey-
man, he still denied that he ‘‘knew’’ Blomquist was qualified
as a journeyman. Pouliot said he made no attempt to call
Blomquist because he ‘‘wouldn’t’’ hire him, nor did Re-
spondent attempt to call Harger or Hoots (who both were
journeymen) to replace Demko when he left, or for any other
job opportunity.
III. DISCUSSION
The issues in these cases arose subsequent to Respondent’s
bid to participate in construction work at a federally funded
veterans medical center and a June 1989 letter to it from the
Union which addressed the subject of Respondent’s compli-
ance with the prevailing wage provision of Public Act 166
of 1965. Significantly, when the General Counsel asked co-
owner Pouliot about this letter, Respondent initially said the
letter did not concern wages but concerned harassment by
the Union. There is little dispute that thereafter the Union
and several union electricians made various contacts with the
Respondent, both for the purpose of securing employment
and for recognition of the Union, and that the Respondent
consistently resisted these efforts, relenting once to hire al-
leged discriminatee Ketola for a week (in an apparent at-
tempt to resolve the initial complaint in these proceedings),
before abruptly letting him go. Otherwise, Respondent has
refused to acknowledge the possibility that the laws of the
United States, as codified in the National Labor Relations
Act, give rights to individuals and labor unions that might
supersede its personal opinions about how freely it can con-
duct its small business enterprise.
A.
It is well established that questions concerning union pref-
erence, in the context of job application interviews, are inher-
ently coercive and unlawful even when the applicant is hired.
Thriftway Supermarkets, 276 NLRB 1450, 1459–1460
(1985). Here, both co-owners Pouliot and Edlund told appli-
cant Munn in his job interview on October 5, 1990, that they
were having problems with the Union; that their tires had
been slashed; that if they caught the union people, they
would like to kill them; and asked Munn whether he worked
for the Union and what he thought of the Union. This con-
135ELECTRO-TEC, INC.
duct is coercive and a violation of Section 8(a)(1) of the Act,
as alleged.
In a telephone conversation with applicant Ketola on Octo-
ber 18, 1990, Edlund said that he was not hired because Re-
spondent had learned of his being in the Union and that no
contractor wanted that trouble. Also in October, Edlund told
Ketola that he was not hired because they heard he was
Union. Also, in late December, Edlund told Munn he might
lose his job because the Union was pushing to get Ketola
hired. Each of these actions interfere with employee Section
7 rights and constitutes violation of Section 8(a)(1) of the
Act, as alleged.
When Ketola was interviewed by Pouliot, after his initial
charge over not being hired was pending, he was asked if he
was thinking of dropping the charges. I find that this ques-
tion implies a request to do so in exchange for being hired,
see Norbar, Inc., 267 NLRB 916, 917 (1983), and therefore
interferes with employee rights and violates Section 8(a)(1)
of the Act, as alleged.
In this same conversation, Respondent also denigrated and
otherwise discouraged Ketola from taking the job by telling
him that Munn was better, that he was worth only $4.50 per
hour; and then offered him the job at $1 less per hour than
he was offered the previous year. The denigration and dis-
couragement, in the context of a hostile union environment,
to a job applicant who sympathizes with the Union, also vio-
lates Section 8(a)(1) of the Act, as alleged. See Precision
Founders, 278 NLRB 544, 549 (1986).
B.
Section 8(a)(3) of the Act makes it an unfair labor practice
for an employer to discriminate against an employee in re-
gard to hire or tenure of employment or any term or condi-
tion of employment to encourage or discourage membership
in any labor organization.’’ Thus, an employer violates Sec-
tion 8(a)(3) and (1) when it fails to hire, disciplines, or dis-
charges employees because of their union sympathies or ac-
tivities. In cases of this nature, applicable law requires that
the General Counsel meet an initial burden of presenting suf-
ficient evidence to support an inference that the employees’
union or other protected, concerted activities were a moti-
vating factor in the employer’s decision affecting the em-
ployees. Here, the record shows that Respondent has clearly
and unequivocally voiced its disagreement with the rights of
individuals to organize and have collective representation
and, as shown above, it has adhered to its thoughts in this
respect and expressed its union animus in a manner that has
violated the 8(a)(1) rights of individuals.
Under these circumstances, I find that General Counsel has
met his initial burden by presenting a prima facie showing,
sufficient to support an inference that the employees’ union
activities were a motivating factor in Respondent’s decision
regarding the hire, tenure, and discipline of employees.
Accordingly, the testimony will be discussed and the
record evaluated in keeping with the criteria set forth in
Wright Line, 251 NLRB 1083 (1980); see NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983), to con-
sider Respondent’s defense and, in the light thereof, whether
the General Counsel has carried its overall burden.
Respondent’s defense appears to be directed at its percep-
tion that it is being harassed because the Union in using salt-
ing techniques and sending union organizers to apply for
jobs rather than bona fide applicants.
The Board’s recent decision in Windemuller Electric, 306
NLRB 664 (1992), affirms the administrative law judge’s
following discourse on this precise subject:
The Company contends [Br. 52] that ‘‘the alleged
discriminatees were not bonafide applicants for employ-
ment because of [the Company’s] belief that they were
paid union organizers.’’ As I indicated at the hearing,
I find this argument without merit as a matter of law.
At the hearing, the Company and CES did not argue
that they refused to hire or consider for employment
any of the alleged discriminatees, or took personnel ac-
tion against them, because of their actual or perceived
status as union organizers. None of the Respondents’
witnesses made such a contention. Rather, the Company
argues in sum that by reason of their actual or per-
ceived status as ‘‘paid union organizers,’’ the alleged
discriminatees fell outside of the class of ‘‘employees’’
who are entitled to the protection of the Act. The argu-
ment is without merit. All union members are in a real
sense, union organizers. This is the nature of labor or-
ganizers. They are members of the ‘‘employee class,’’
and therefore ‘‘entitled to the Act’s protection.’’ Oak
Apparel, Inc., 218 NLRB 701 (1975); see also, Willmar
Electric Service, Inc., 303 NLRB No. 33, sl. op. at 4
(1991); Pilliod of Mississippi, Inc., 275 NLRB 799, 811
(1985); Holbrook Knitwear, Inc., 169 NLRB 768, 771
(1968). It is immaterial whether the alleged
discriminatees sought employment with the Company
or CES principally for organizational purposes or
whether they received any reimbursement from the
Union. Given the transient nature of employment in the
construction industry, it would be difficult to engage in
an organizational campaign without some preconceived
plan. If persons who worked at the trade were denied
protection of the Act because they sought employment
for organizational purposes or accepted union reim-
bursement, this would serious [sic] impede organiza-
tional activity in the construction industry.
Under these circumstances, it is clear that the alleged
discriminatees are entitled to the Act’s protection against em-
ployment discrimination.
The record shows that Respondent refused to hire Ketola
on October 8, 1990, because it was aware of his union activi-
ties at another company. The record also shows that Re-
spondent refused to hire or consider for hire applicants
Blomquist, Harger, and Hoots because of their believed asso-
ciation with the Union. Although the Respondent also asserts
that these persons were not ‘‘qualified’’ to do the work in-
volved, I find that the record otherwise has shown that they
all were experienced in the trade and apparently were func-
tional at the journeyman level. The Respondent demonstrates
no objective basis for its claims that they were not ‘‘quali-
fied’’ and I find that its reason is pretextual.
This conclusion is reinforced by Respondent’s transparent
action in dismissing both Munn and Ketola who were work-
ing at $6.50 and $5 an hour, respectively, and hiring a non-
union subcontractor’s employee at $16 an hour.
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Under the circumstances, I find that the Respondent re-
fused to hire these several applicants because they joined,
supported, or assisted the Union and engaged in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, and in order to discourage employ-
ees from engaging in those activities. By this conduct, Re-
spondent discriminated in regard to the hire, tenure, terms or
condition of employment of their employees, thereby dis-
couraging membership in a labor organization, and I con-
clude that it is shown to have been engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the
Act, as alleged.
The record show that work was available at Munn’s job-
site, as well as on a new project and at the bank job when
Respondent began to utilize the services of a more costly
subcontractor’s worker after laying off Munn, assertedly for
lack of work. Shortly thereafter, Ketola was abruptly laid off
after only 1 week of apparently ‘‘token’’ employment.
On this record, the Respondent has failed to show any le-
gitimate reason for its actions that would outweigh the Gen-
eral Counsel’s strong showing that its actions were
discriminatorily motivated, including the fact that Ketola did
not respond to Respondent’s implication that he drop his
charges against them, and I conclude that the Respondent is
shown to have violated Section 8(a)(1) and (3) of the Act in
this respect, as alleged.
C.
Munn was given a written warning for absenteeism on No-
vember 7, a week after being absent on October 29 and 3
days after the Respondent received the Union’s letter identi-
fying Munn as a union organizer.
Munn was the first employee in Respondent’s 6-year his-
tory to receive a warning for absenteeism. He was not first
given a verbal warning as Pouliot admitted was Respondent’s
policy. Also, there was no investigation into Munn’s absence
as had been done with other employees. No explanation was
offered as to why over a week went by before the warning
was issued. Munn is shown to have received disparate treat-
ment, and otherwise there is no persuasive showing that the
warning was given to Munn for nondiscriminatory reasons.
Accordingly, I conclude that Respondent is shown to have
violated Section 8(a)(3) of the Act in this respect, as alleged.
D.
Lastly, it is uncontradicted that Edlund promised Ketola a
job at $6 per hour but then denied him employment because
of his union sympathies and activities. The person who was
hired instead of Ketola was paid $6.50 per hour. Later, when
Ketola was hired on February 4, 1991, after he had filed
charges with the Board alleging Respondent’s discriminatory
refusal to hire, Respondent denigrated Ketola by telling him
he was worth only $4.50 and reducing his starting wages to
$5 from the promised $6 an hour. Thus denigration of Ketola
took place in a job interview January 21, 1991, in which
Pouliot became even more disparaging after Ketola refused
to answer as to whether he would withdraw his NLRB
charges. Ketola subsequently obtained other work at a jour-
neyman’s level, and there is no showing by Respondent that
explains or justifies its actions in this regard. Accordingly, I
find that Respondent’s solicitation of Ketola to drop his
charges together with the discriminatory assignment of
Ketola to a lower pay rate are shown to be due to his union
activity and his filing of charges with the Board and there-
fore in violation of Section 8(a)(1), (3), and (4) of the Act,
as alleged; see Consumer’s Asphalt Co., 295 NLRB 749
(1989), and Grady Delling, 287 NLRB 234 (1987).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 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 interrogating job applicants concerning their union
sympathies and activities and by telling an applicant he was
not hired because of his union activities and sympathies and
telling an employee he might lose his job because the Union
was pushing the cause of another person, Respondent has
interfered with, restrained, and coerced employees in the ex-
ercise of their rights guaranteed them by Section 7 of the
Act, and thereby has engaged in unfair labor practices in vio-
lation of Section 8(a)(1) of the Act.
4. By discriminatorily failing and refusing to hire appli-
cants Gary K. Ketola, John Blomquist, Dan Harger, and Jim
Hoots, Respondent engaged in unfair labor practices in viola-
tion of Section 8(a)(1) and (3) of the Act.
5. By denigrating applicant Ketola’s ability during a job
interview, paying him less than prevailing and promised
wages because of his union sympathies and activities and be-
cause of his involvement in the filing of charges with the
Board, Respondent has engaged in discriminatory and unfair
labor practices in violation of Section 8(a)(1), (3), and (4) of
the Act.
6. By issuing a written warning to employee Grover Munn
on November 6, 1990, Respondent violated Section 8(a)(1)
and (3) of the Act.
7. By laying off employees Grover Munn on January 16,
1991, and Gary K. Ketola on February 8, 1991, and failing
and refusing to recall these employees since that time be-
cause of their union sympathies and activities, Respondent
has violated Section 8(a)(1), (3), and (4) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to offer John
Blomquist, Dan Harger, and Jim Hoots preferential employ-
ment and make them whole, with interest, for any loss of
earnings and other benefits resulting from Respondent’s hir-
ing of other employees as specified below, and to reinstate
employees Grover Munn and Gary K. Ketola who were laid
off January 16, 1991, and February 8, 1991, respectively, and
not subsequently rehired, to their former jobs or substantially
equivalent positions, dismissing, if necessary, any temporary
employees or employees hired subsequently, without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of earn-
ings they may have suffered because of the discrimination
practiced against them by payment to them of a sum of
money equal to that which they normally would have earned
137ELECTRO-TEC, INC.
2 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
from the date of the discrimination to the date or reinstate-
ment in accordance with the method set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall also be ordered to expunge from its
files any reference to the illegal warning given Grover Munn
and notify him in writing that this has been done and that
evidence of the unlawful warning will not be used as a basis
for future personnel action against him. Respondent also
shall make Ketola whole for the difference between the
promised wage of $6 an hour and that actually paid during
the week he worked. Otherwise, it is not considered nec-
essary to issue a broad order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Electro-Tec, Inc., Iron Mountain, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating or laying off any employees, failing or re-
fusing to recall them from layoff or otherwise discriminating
against them in retaliation for engaging in union activities or
other protected concerted activities.
(b) Interfering with, restraining, or coercing its job appli-
cants or employees in the exercise of the rights guaranteed
in Section 7 of the Act by interrogating them concerning
their union sympathies and activities; by stating that an ap-
plicant was not hired because of his union sympathies and
activities and an employee might lose his job because of the
Union’s actions on behalf of another person; by issuing writ-
ten warnings; and by denigrating an applicant or employee’s
abilities and paying less than promised or prevailing wages.
(c) Discriminatorily failing and refusing to hire job appli-
cants because of their union activities or sympathies.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Grover Munn and Gary K. Ketola immediate and
full reinstatement and make them whole for the losses they
incurred as a result of the discrimination against them in the
manner specified in the remedy section, and expunge from
its files any reference to the warning given to Munn and no-
tify him in writing that this has been done and that evidence
of the unlawful warning will not be used as a basis for future
personnel actions against him.
(b) Offer John Blomquist, Dan Harger, and Jim Hoots
preferential employment and make them whole, with interest,
for any loss of earnings and other benefits resulting from Re-
spondent’s hiring of other employees as specified in the rem-
edy section, above.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records, re-
ports, and other documents necessary to analyze the amount
of backpay due under the terms of this decision.
(d) Post at its Iron Mountain, Michigan facility and mail
to all job applicants and employees who were laid off on
January 16 and February 6, 1991, copies of the attached no-
tice marked ‘‘Appendix.’’3 Copies of the notice, on forms
provided by the Regional Director for Region 30, after being
signed by the Respondent’s authorized representative, 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 custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.