Ellis Electric

National Labor Relations Board - Board Decisions

Dec 30, 1994

315 N.L.R.B. 1187 (N.L.R.B. 1994)

1187
315 NLRB No. 142
ELLIS ELECTRIC
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In affirming the judge’s finding that the credible evidence estab-
lishes a prima facie case of unlawful motivation for the March 9,
1993 layoffs, we make clear that we rely on the pretextual nature
of the reasons the Respondent asserted as its defense. See Wright
Line, 251 NLRB 1083, 1088 fn. 12 (1980) (absence of an legitimate
basis for an action may form part of the proof of the General Coun-
sel’s case), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982). See also NLRB v. Melrose Processing Co., 351 F.2d
693, 699 (8th Cir. 1965) (‘‘[W]hen every other plausible motive has
been eliminated and the reasons advanced are not persuasive, the
union activity may well disclose the real motive behind the employ-
er’s action.’’). Property Resources Corp. v. NLRB, 863 F.2d 964,
967 (D.C. Cir. 1988) (‘‘Board’s decision that the layoffs would not
have occurred but for the antiunion animus is supported by evidence
. . . that the reason given for the layoffs at the time . . . was im-
plausible.’’).
3 See also Western Stress, Inc., 290 NLRB 678 fn. 3 (1988) (rem-
edies are not forfeited where the evidence fails to show the employer
would have otherwise terminated an employee for the alleged mis-
conduct); and NLRB v. O’Hare-Midway Limousine Service, 924 F.2d
692, 698 fn. 5 (7th Cir. 1991), enfg. O’Hare-Midway Limousine
Service, 295 NLRB 463 (1989) (where the court rejected the em-
ployer’s contention, apparently raised for the first time, that the un-
lawfully discharged employee had forfeited his remedies because he
did not list all traffic violations within the prior 3 years on his job
application; the court relied, in part, on the fact that the employer
did not discharge the employee until 2 or 3 months after it discov-
ered the first of two omitted traffic violations).
We note that no party has excepted to the judge’s finding that the
Respondent’s offer to reemploy laid-off employees Jeffrey Fisher
and Jon Mariani ‘‘does not relieve Respondent of its obligation to
offer them reinstatement.’’
4 There are no exceptions to the judge’s finding that there were no
laid-off employees who were part of the unit during the pertinent pe-
riod for determining whether the Union had majority support.
5 Steiny & Co., supra at 1326.
6 See S. K. Whitty Co., 304 NLRB 776 fn. 5 (1991). (Although
Steiny & Co. reversed S. K. Whitty Co. to the extent that case re-
vised the eligibility formula for laid-off employees, it reaffirmed the
Continued
Daniel J. Ellis, d/b/a Ellis Electric and International
Brotherhood of Electrical Workers, Local 288.
Case 18–CA–12634
December 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On December 21, 1993, Administrative Law Judge
William J. Pannier issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief, and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. We agree with the judge that employee Jeffrey
Hicks did not forfeit his right to reinstatement because
he overstated his work experience on his job applica-
tion. As the judge noted, the Respondent knew about
Hicks’ overstatement of his work experience with one
employer—Delta Diversified—for almost a month be-
fore the March 9 layoff, but took no adverse action
against Hicks—including the layoff—based on that
knowledge. In fact, the layoff notice reads in part, ‘‘In
the event our work load picks up you will be eligible
for rehire.’’
In its brief, the Respondent argues that it did not
discharge Hicks because of the overstatement regard-
ing Delta Diversified because it was still awaiting in-
formation from a second employer—Fluor Daniel.
However, the Respondent’s office manager, Janet Ellis,
testified that she had received the information from
Fluor Daniel ‘‘within a day or two, before he (Hicks)
got laid off.’’ Regarding a third employer ‘‘JBJ’’ that
Hicks had listed on his application, Janet Ellis testified
she did not know the company or how to contact it.
In view of this testimony, we conclude that, prior to
Hicks’ layoff, the Respondent was aware that Hicks
had overstated his work experience. Despite this
knowledge, the Respondent laid off Hicks rather than
terminating him, did not cite the overstatement as a
basis for the layoff, and indicated that Hicks was eligi-
ble for rehire. Further, the Respondent has not pro-
duced evidence of any policy or practice of terminating
employees who overstate their prior employment expe-
rience. Accordingly, the Respondent has failed to sat-
isfy ‘‘its burden of establishing that the discriminatee
engaged in unprotected conduct for which the em-
ployer would have discharged any employee.’’ Mar-
shall Durbin Poultry Co., 310 NLRB 68, 70 (1993).
We, therefore, agree with the judge that Hicks has not
forfeited his right to reinstatement.3
2. We disagree with the judge that employees Peter
Arbic, Ritchie Kurtenbach, and Jon Mariani should not
be considered as part of the unit for purposes of deter-
mining whether the Union had majority support during
the time when this showing of support is at issue (be-
tween February 26 and March 6).4 The judge did not
include them because, by the pertinent dates, they had
not worked sufficient days under the eligibility formula
for the construction industry set forth in Steiny & Co.,
308 NLRB 1323 (1992). However, the purpose of that
formula is to determine which employees in the con-
struction industry who are laid off at the time of an
election are eligible to vote, ‘‘in addition to those eli-
gible to vote under the standard criteria,’’’5 i.e., those
employees hired and working on the pertinent date.6
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board’s well-settled principle that this formula, whatever its content,
does not apply to those employees who meet the standard eligibility
criteria. Steiny & Co., supra at 1326.) See also Daniel Construction
Co., 133 NLRB 264, 267 (1961), as modified at 167 NLRB 1078,
1081 (1967).
7 As discussed above, we find all five of these employees to have
been unit employees by that date.
8 We amend the judge’s recommended Order and notice to date the
bargaining order as effective March 2, 1993. Consistent with the bar-
gaining order, we also amend the recommended Order and notice to
include a broad cease-and-desist order. We also correct the judge’s
inadvertent omission of an omission of an expunction remedy for the
unlawfully laid-off and discharged employees. Finally, we add ex-
press language: (1) requiring the Respondent to cease and desist
from denying wage increases to discourage employees from engag-
ing in union activity; and (2) requiring the Respondent to make Ken-
dall William Jacobs whole, with interest, for any loss of pay suffered
by its denial of a wage increase to him to discourage his support
of the Union.
Arbic, Kurtenbach, and Mariani, who had started
working for the Respondent on February 22, 3, and 9,
respectively, were all actively on the Respondent’s
payroll between February 26 and March 6, when the
Union’s showing of majority support is at issue. There-
fore, they were in the unit at the pertinent time without
regard to the application of the Steiny & Co. formula
for laid-off employees, and should be considered in de-
termining whether the Union enjoyed majority support.
Including these three employees with Jerry Fox,
Kendall Jacobs, Jeffrey Fisher, and Jeffery Hicks, who
the judge found were in the unit between February 26
and March 6, the unit between those dates, including
March 2, consisted of seven employees.
All but one of these employees—Fox—signed cards:
Jacobs (February 25), Fisher (February 26), Hicks
(February 26), Kurtenbach (March 2), Mariani (March
6), and Arbic (March 18). The Union, therefore,
evinced majority support on March 2—the date the
fourth card in the unit of seven employees was signed.
We adopt the judge’s finding that by February 26,
the Respondent had engaged in unfair labor practices
affecting five employees.7 In addition, we agree with
the judge that the Respondent has committed serious
and pervasive unfair labor practices and that the linger-
ing effects of the unfair labor practices warrant a bar-
gaining order. Accordingly, we shall order the Re-
spondent to bargain as of March 2, 1993, the date on
which the Union achieved majority status, and by
which date the Respondent had begun its unfair labor
practices.8 Peaker Run Coal Co., 228 NLRB 93
(1977).
ORDER
The National Labor Relations Board orders that the
Respondent, Daniel J. Ellis, d/b/a Ellis Electric, Inde-
pendence, Iowa, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Laying off, discharging, or otherwise discrimi-
nating against Ritchie V. Kurtenbach, Jon Mariani,
Jeffery Hicks, Jeffrey Fisher, Melissa Jacobs, and Ken-
dall William Jacobs, or any other employee, because of
activity on behalf of or support for International Broth-
erhood of Electrical Workers, Local 288, or any other
labor organization.
(b) Interrogating job applicants and already em-
ployed employees about their own and other employ-
ees’ union activity and sympathies, threatening closure
and denial of wage increases and denying wage in-
creases to discourage employees from union activity,
granting and promising to grant wage increases to en-
courage opposition to union activity, prohibiting dis-
play of prounion insignia and covering insignia that are
displayed, and directing that 911 be called if employ-
ees display insignia on company premises.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and bargain collectively, effective
March 2, 1993, with the International Brotherhood of
Electrical Workers, Local 288, as the collective-bar-
gaining agent of employees in the appropriate unit set
forth below and, if an agreement is reached, sign a
written contract embodying the terms of that agree-
ment. The appropriate bargaining unit is:
All employees performing electrical work for
Daniel J. Ellis, d/b/a Ellis Electric, but excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
(b) Offer Ritchie V. Kurtenbach, Jon Mariani, Jeff-
ery Hicks, Jeffrey Fisher, Melissa Jacobs, and Kendall
William Jacobs immediate and full reinstatement to the
positions from which they were laid off or discharged,
dismissing, if necessary, anyone who may have been
hired or assigned to perform the work of any of them
or, if one or more of their positions no longer exists,
to a substantially equivalent position, without prejudice
to seniority or other rights and privileges, and make
each of them whole for any loss of pay suffered by the
discrimination against them, including the denial of a
wage increase to Kendall William Jacobs to discourage
his support of the Union, with interest on the amounts
owing, in the manner set forth in the remedy section
of the decision.
(c) Remove from its files any reference to the un-
lawful layoff of Ritchie V. Kurtenbach, Jon Mariani,
Jeffery Hicks, and Jeffrey Fisher, and the unlawful dis-
charge of Melissa Jacobs and Kendall William Jacobs,
and notify them in writing that this has been done and
that the layoffs or discharges will not be held against
them in any way.
1189ELLIS ELECTRIC
9 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.’’
1 Unless stated otherwise, all dates occurred in 1993.
(d) Preserve and, on request, make available to the
Board and its agents, for examination and copying all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its Independence, Iowa office copies of
the attached notice, marked ‘‘Appendix.’’9 Copies of
the notice, on forms provided by the Regional Director
for Region 18, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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 any representa-
tive of their own choice
To act together for mutual aid or protection.
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate you about your own and
other employees’ union activities or sympathies.
WE WILL NOT threaten to close our business or to
deny wage increases, or deny wage increases because
you or other employees engage in activity on behalf of
International Brotherhood of Electrical Workers, Local
288, or on behalf of any other labor organization.
WE WILL NOT grant or promise to grant wage in-
creases to encourage you to oppose or not support the
above-named or any other labor organization.
WE WILL NOT prohibit you from displaying insignia
supporting the above-named or any other labor organi-
zation, cover up such insignia that you choose to dis-
play, nor direct that 911 be called if you display
prounion insignia on our premises.
WE WILL NOT lay off, discharge, or otherwise dis-
criminate against you because of activities on behalf of
the above-named or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and bargain collectively, effec-
tive March 2, 1993, with International Brotherhood of
Electrical Workers, Local 288, as the collective-bar-
gaining agent of employees in the appropriate bargain-
ing unit set forth below and, if agreement is reached,
sign a written contract embodying the terms of that
agreement. The appropriate bargaining unit is:
All employees performing electrical work for
Daniel J. Ellis, d/b/a Ellis Electric, but excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL offer Ritchie V. Kurtenbach, Jon Mariani,
Jeffery Hicks, Jeffrey Fisher, Melissa Jacobs, and Ken-
dall William Jacobs immediate and full reinstatement
to the positions from which they were laid off or dis-
charged, dismissing, if necessary, anyone who may
have been hired or assigned to perform the work of
any of them or, if one or more of their positions no
longer exists, to a substantially equivalent position,
without prejudice to seniority or other rights and privi-
leges, and WE WILL make each of them whole for any
loss of pay suffered by our discrimination against
them, including the denial of a wage increase to Ken-
dall William Jacobs to discourage his support of the
Union, with interest on the amounts owing.
WE WILL remove from our files any reference to the
unlawful layoffs of Ritchie V. Kurtenbach, Jon
Mariani, Jeffery Hicks, and Jeffrey Fisher, and the un-
lawful discharge of Melissa Jacobs and Kendall Wil-
liam Jacobs, and notify them in writing that this has
been done and that the layoffs or discharges will not
be held against them in any way.
DANIEL J. ELLIS, D/B/A ELLIS ELECTRIC
A. Marie Simpson, for the General Counsel.
David A. Roth (Gallagher, Langlas & Gallagher), of Water-
loo, Iowa, for the Respondent.
David Althaus, of Dubuque, Iowa, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Waterloo, Iowa, on July 13 and 14, 1993.1
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On May 25 the Regional Director for Region 18 of the Na-
tional Labor Relations Board (the Board) issued the com-
plaint and notice of hearing in the above-captioned matter,
based on an unfair labor practice charge filed on April 9 and
amended on May 25, alleging violations of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act (the Act).
All parties have been afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine witnesses,
and to file briefs. Based on the entire record, on the briefs
that were filed, and on my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Since January 1, 1992, Daniel J. Ellis, d/b/a Ellis Electric
(Respondent) has been a sole proprietorship engaged as an
electrical contractor in the building and construction industry,
with an office and place of business in Independence, Iowa.
In the course and conduct of those operations during calendar
year 1992, Respondent purchased and received, at its Inde-
pendence place of business and at its Iowa construction
jobsites, goods valued in excess of $50,000 directly from
points outside the State of Iowa. Therefore, I conclude that
at all times material Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, International Brotherhood of Elec-
trical Workers, Local 288 (the Union) has been a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
Section 8(a)(1) of the Act prohibits employer interference
with and restraint or coercion of employees in the exercise
of their statutory rights, inter alia, to self-organization; to
form, join, or assist labor organizations; and to bargain col-
lectively through representatives of their own choosing.
‘‘Since about December 7, 1992,’’ alleges the complaint, Re-
spondent has engaged in a series of actions—interrogation of
employees about union membership and sympathy, threats to
have nothing to do with a union and to cease operations or
close if its employees became represented by the Union,
threats to withhold wage increases because of its employees’
union activities, prohibition of display of union insignia on
its property and a direction to call the police if any employee
did so, and a promise to grant and the actual grant of a wage
increase to discourage union activity—that violated the pro-
scriptions of Section 8(a)(1) of the Act.
Section 8(a)(3) of the Act prohibits, inter alia, employment
discrimination against employees to discourage their mem-
bership in any labor organization. The General Counsel al-
leges that Respondent violated that prohibition by laying off
four employees on March 9, by discharging another em-
ployee on March 23 and by discharging the latter employee’s
husband on April 2.
Section 8(a)(5) of the Act proscribes employer refusals to
bargain collectively with, and upon demand by, bargaining
agents chosen by a majority of employees in appropriate bar-
gaining units. The complaint alleges that the Union de-
manded recognition by Respondent on March 18, and alleges
that Respondent has refused to recognize and bargain with
the Union on and after that date. However, the General
Counsel’s brief urges that, ‘‘The bargaining order sought
would be effective on March 6, 1993, the date on which the
Union obtained support of a majority of Respondent’s unit
employees.’’ That argument is based on decisions holding
that, even without a bargaining demand by a labor organiza-
tion, an employer can be directed to bargain with a bargain-
ing agent selected by a majority of its employees, in an ap-
propriate bargaining unit, if that employer engages in unfair
labor practices so serious and substantial that it is not pos-
sible to erase their effects by conventional remedies and to
conduct a representation election to determine employee sen-
timents free of the taint of those unfair labor practices.
B. Events Prior to March 8
Respondent commenced operations on January 1, 1992. At
all times material, its owner has been Daniel Ellis and its of-
fice manager has been his wife, Janet Ellis. Both are admit-
ted statutory supervisors and agents of Respondent within the
meaning of the Act.
Electricians employed by Respondent during 1992 were
unrepresented by a bargaining agent. However, it is
uncontroverted that the Union did make contact with Re-
spondent regarding that subject during the spring of that
year, when David Althaus, organizer for the Union, encoun-
tered Daniel Ellis. During their ensuing conversation, it is
not disputed, the latter mentioned ‘‘that he had been a union
contractor in Ohio,’’ but ‘‘at this time he was not interested
in the [U]nion.’’ Ellis testified that he had been ‘‘involved
with the’’ International Brotherhood of Electrical Workers
‘‘back in the ’70’s’’ and, based on past experience, that he
had not found union labor to be of high quality.
During at least the latter half of 1992, Respondent had ad-
vertised for electrician applicants. All interviews of respond-
ing applicants were conducted by Daniel Ellis. Electrician
Kendall William Jacobs testified that during his interview in
August 1992, in the course of a discussion about prior expe-
rience, ‘‘Dan asked if I was union, or what I thought about
the unions,’’ to which Jacobs had replied that he was not in
a union and that there had been an organizing a campaign
at a Wisconsin job where he had previously worked, but that
he ‘‘didn’t have feelings one way or the other, that I have
never really been involved with one.’’
In the course of an October 1992 telephone conversation
inquiring about employment with Respondent, Jeffery L.
Hicks testified that Ellis had ‘‘asked me if I had been
through any union apprenticeship programs,’’ ‘‘if I was part
of the IBEW,’’ and ‘‘what I thought about unions.’’ In es-
sence, testified Hicks, he had responded that he had not been
through any union apprenticeship programs, ‘‘was not at that
time’’ part of the IBEW and had ‘‘no opinion of [unions],
because I have never worked for a union contractor.’’ None-
theless, according to Hicks, when he had filed his application
with Respondent during the following month, Ellis ‘‘again
asked me if I had any union affiliation’’ and Hicks ‘‘told
him I didn’t.’’
Jon B. Mariani also testified that when he had applied for
employment during January, Ellis ‘‘kind of asked me how I
felt about the unions,’’ explaining that the subject had arisen
1191ELLIS ELECTRIC
2 Kurtenbach was not paid by the Union for doing so. Even if he
had been paid, that would not have deprived him of employee status
under Sec. 2(3) of the Act. See Town & Country Electric, 309
NLRB 1250 (1992).
3 Althaus placed the date of his visit there on February 4.
Kurtenbach testified that it had been on February 16. Jacobs testified
that it had been about February 20 and Mariani believed that it had
occurred on February 22, while Hicks testified that it had occurred
early to mid-February. As discussed infra, Respondent maintains
what it calls labor sheets for each project. Those documents record
by date who had worked on each particular project. The labor sheets
for the V.A. Medical Center and the V.A. Chapel projects disclose
only 2 days, February 16 and 17, when all four of those employ-
ees—Jacobs, Mariani, Hicks, and Kurtenbach—had worked there
during February.
4 Again, there was a discrepancy regarding the date of that visit
in testimony provided by Kurtenbach and Althaus, with the latter
placing the date on Feruary 22, while the former testified that it had
been on February 19. That project’s labor sheets show that only
Kurtenbach had worked there on February 22 and, further, that the
ony February date when Fisher had worked there, as well, had been
on February 19.
as a result of a portion of the application form questioning
the union or nonunion status at each prior employer for
whom Mariani had worked. Yet, when his application was
produced during cross-examination, Mariani admitted that no
question about the union status of prior employers, nor of
himself while working for each one, appeared on the form
that he had completed. Further, Mariani ultimately conceded
that he did not know if his recollection about the discussion
with Ellis of unions ‘‘was exact’’ and, moreover, that maybe
he had volunteered that he had previously been involved with
a union. Nevertheless, he continued to assert that, in response
to that volunteered information, he had been asked by Ellis
if he still was a union member or was involved with a union.
Electrician Ritchie V. Kurtenbach, like Mariani, had been
interviewed during January. He testified that in the course of
reviewing the application, Ellis had remarked that ‘‘if I was
as good as my application stated, that the union would gob-
ble me up.’’ However, Kurtenbach testified that he had not
responded and that Ellis had said nothing more regarding the
subject.
Ellis testified that he had no problem with hiring people
who had been involved previously with a union. He further
asserted generally that he had never asked if applicants were
union affiliated nor had he asked if they planned to become
members of a union, because, ‘‘It is against the law.’’ To
support that assertion, Respondent presented four employ-
ees—Terry Fox who had commenced working for Respond-
ent on October 6, 1992; Peter Arbic who had begun work
with Respondent on the following February 22; Virgial D.
Lewis Sr. who had been hired during March; and Jerald B.
Moore, who had worked for Respondent from May 18 to Oc-
tober 30, 1992, and who again began working for Respond-
ent on March 16—each of whom denied that he had been
asked about union affiliation and attitude when seeking em-
ployment with Respondent.
Of course, an employer’s failure to violate the Act whole-
sale, whenever the opportunity is presented, does not, of
itself, establish that it had not done so on particular occa-
sions. See, e.g., discussion, in the context of discriminatory
acts, in Hogan Mfg., 309 NLRB 949, 956 (1992), and cases
cited therein. The reasoning there is no less applicable when
evaluating alleged violations of the Act’s other proscriptions.
Furthermore, the reliability of those four employees’ denials,
particularly with regard to the interview of Moore before he
had been rehired on March 16, is diminished by Janet Ellis’
undenied comment to then-secretary and bookkeeper Linda
Peterson that Daniel Ellis had ‘‘question[ed] Jerry Moore
about whether he was interested in joining a union’’ and, ac-
cording to what Peterson had been told by Janet Ellis, Moore
had ‘‘said he wasn’t.’’
Daniel Ellis denied having asked Jacobs about the Union,
if Jacobs was a member of the Union, if Jacobs had any
plans to become a member of the Union, and having talked
at all about the Union during the initial interview with Ja-
cobs. Ellis did acknowledge that the subject had arisen when
Mariani had been interviewed. But, he testified that it had
been discussed when Mariani volunteered ‘‘that he had been
working as an apprentice in the IBEW in Chicago,‘‘ but had
been ‘‘booted out’’ of that labor organization. Ellis denied
having asked during that interview if Mariani was in the
Union, was a member of the Union, was involved in the
Union in any way, and if Mariani planned to join the Union.
However, Ellis did admit that he had made the above-quoted
remark attributed to him by Kurtenbach in the course of the
latter’s January job interview. Ellis claimed that he had in-
tended his remark as ‘‘a purely complimentary remark,’’ be-
cause Ellis had been so impressed by ‘‘what he show[ed] on
his application and the interview we had, I was impressed
with his presentation.’’
In fact, the Union was quite interested in Kurtenbach and
his employment by Respondent. He and the Union had
agreed that, while employed by Respondent, Kurtenbach
would serve as the Union’s ‘‘salt’’—an employee who would
attempt to ascertain union sentiments of other employees and
assist in organizing them, should the Union choose to pursue
that course.2 Following commencement of his employment
with Respondent on February 3, Kurtenbach did not disclose
that role to Respondent nor to any of its employees during
February. However, on February 16 or 17, Althaus visited
the V.A. Hospital site in Iowa City where he spoke with Ja-
cobs, Mariani, and Hicks who were working there with
Kurtenbach.3 Then, on Friday, February 19, Althaus visited
Kurtenbach and Jeffrey J. Fisher at the Vinton Public Library
site.4 On neither date did Althaus solicit employee signatures
on authorization cards.
Ellis admitted that the librarian at the Vinton Public Li-
brary had reported the visit by Althaus to that project. More-
over, Ellis admitted that, thereafter, he had spoken to all of
his employees about the Union. In fact, he confirmed many
of the remarks attributed to him by Kurtenbach during two
conversations on Monday, February 22, one occurring when
the latter reported for work that day and the second as he
checked out that evening.
According to Kurtenbach, during the morning conversa-
tion, Ellis had asked ‘‘why he wasn’t informed that the union
organizer was on the job Friday,’’ and had said that the orga-
nizer’s presence there ‘‘was important and was serious, that
he could be made to go union and he didn’t want that,’’ that
it was unfair that union members obtained a better oppor-
tunity to pass the test for a journeyman’s license, and ‘‘that
he was a union contractor before, and he would have nothing
to do with it again, and that he would shut his doors.’’ Dur-
ing the evening conversation, Kurtenbach testified, Ellis had
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘stated, first of all, that the fellows at the VA Hospital had
been visited by the union organizer also,’’ and had asked if
Kurtenbach was a union member or ‘‘if I was union,’’ which
Kurtenbach denied. Ellis concluded the conversation, testified
Kurtenbach, by saying that Respondent had received applica-
tions from union members who could not get jobs elsewhere
and, as a result, had been willing to work nonunion, adding,
‘‘You better ask these union guys about the unemployment
lines.’’
Consistent with Kurtenbach’s above-quoted description,
Daniel Ellis admitted that ‘‘I think I stated to [Kurtenbach]
that I had heard that the organizing [sic] had visited the job
and I was wondering why he didn’t tell me about it.’’ Fur-
ther, Ellis admitted, ‘‘I asked him . . . if he was a union
member, and he said he was not,’’ and ‘‘I asked him if he
had planned to become a member, and he said he was not
because they would have to offer more than they were.’’ As
described above, Ellis had testified that ‘‘[i]t is against the
law’’ to ask an applicant if he/she had union affiliation or
planned to become a union member. However, testified Ellis,
he felt he had the right to ask about an already employed
individual’s union membership because ‘‘he was already em-
ployed with me.’’ While Ellis testified ‘‘that was the end of
the subject,’’ he did not deny with particularity having told
Kurtenbach that the organizer’s presence at the Vinton Li-
brary project was important and serious, that he would be
made to go union and did not want that, that he had been
a union contractor before and would have nothing to do with
it again, and, in the evening, that the organizer also had vis-
ited the V.A. site, that union members were willing to work
nonunion, and that Kurtenbach should ask union guys about
the unemployment lines.
Ellis did deny having told employees that he would close
if the employees decided to join the Union. The weight to
be accorded that denial is somewhat diminished by the testi-
mony of Jacobs and Mariani—both of whom Respondent’s
records show had worked on the V.A. Medical Center for 9
hours on Monday, February 22—that Ellis had come there
and had threatened to ‘‘close the doors’’ if the employees
pursued unionization. Ellis denied having made such a threat
to Jacobs. However, he made no reference in that denial to
Mariani. Nor did he deny having made such a threat to Ja-
cobs and Mariani, jointly.
Discussion of the subject of unionization did not end on
February 22. On a subsequent date, which appears to have
been February 23 based on Respondent’s project labor
sheets, he warned Jacobs that he would dock employees’ pay
for time spent talking with an organizer instead of working
as they were being paid to do. That warning is not alleged
to have been unlawful. Alleged to be unlawful, however, was
his undenied remark to Jacobs, in late February or early
March, that Jacobs was due for a pay raise, ‘‘but since this
union activity came about that [Ellis] didn’t think I would be
able to get one now.’’
If Ellis could not see his way clear to give Jacobs a raise,
he did provide an alternative means of financial assistance to
that employee. He testified that ‘‘to help [Kendall Jacobs and
his wife, Melissa] out financially, I knew they were
strapped,’’ he offered employment to Melissa Jacobs. She
testified that, prior to starting work for Respondent on March
8, she had not worked ‘‘for the last eight years’’ and had
‘‘want[ed] to go to work because of the [Jacobs’] troubled
financial situation.’’ As a result, she testified, when her
‘‘husband came home one day and said that Dan was looking
for someone to come in and take inventory, and to generally
clean up the parts, get them all in order’’ and had asked
‘‘my husband if I would be interested in doing it,’’ Melissa
Jacobs telephoned Ellis. He told her to come in and talk to
him about the job. She did so on Friday, March 5.
Ellis testified that he had not hired Melissa Jacobs for a
permanent position, but merely to ‘‘count the inventory.’’
Yet, he did not dispute her description that, during their
March 5 conversation in his office, ‘‘he stated that there
were many things that needed to be done. . . . that anything
that needed to be done, [she] would be there to do it.’’ She
accepted his employment offer and first reported for work on
Monday, March 8. As it turned out, that was not the only
event that day that has attracted the General Counsel’s atten-
tion.
C. The Layoffs on March 9
As pointed out in the immediately preceding subsection,
Kurtenbach had not revealed his activity as a salt to Re-
spondent. So far as the evidence discloses, Respondent had
not learned of it from any other source prior to March 8. On
Friday, March 5, however, Althaus made two moves, one of
which would disclose Kurtenbach’s status to Respondent on
the following Monday.
The first was to mail to the Board’s Des Moines Resident
Office the representation petition that, when docketed, would
become Case 18–RC–15369. With it, Althaus included four
signed cards each bearing the printed legend, ‘‘I authorize a
local union of the International Brotherhood of Electrical
Workers, to represent me in collective bargaining with my
employer.’’ The credible evidence shows that one had been
signed by Jacobs on February 25, a second by Fisher, and
a third by Hicks on February 26, and the fourth by
Kurtenbach on March 2. A fifth card would be signed by
Mariani on March 6 and a sixth and final one by Arbic on
March 11. Those two later signed cards were then transmit-
ted to the Resident Office by Althaus.
Althaus did not contend that he had notified Respondent
that he would be filing the petition. Since it had been mailed
on a Friday, and there is no evidence that the Resident Of-
fice is open during weekends, the petition would not have
reached that office, until at least the following Monday,
March 8. Further, there is no evidence that Resident Office
personnel spoke with Respondent about it with either on that
day or on the following one. However, according to a letter
to Daniel Ellis on March 11 from Field Examiner Robert R.
Reid, the two men had spoken by telephone about the peti-
tion on Wednesday, March 10. By that date, Ellis had been
apprised of the organizing campaign from a separate source.
Ellis admitted that on Monday, March 8, his wife had
signed for and had picked up from the post office a letter
from Althaus, dated March 5, which stated:
The purpose of this letter is to inform you that Mr.
Ritchie Kurtenbach is a member of Local 288 National
Brotherhood of Electrical Workers, and that he will be
talking to your employees about the benefits of joining
the union.
1193ELLIS ELECTRIC
In other words he is salting, and salting is a pro-
tected activity under the National Labor Relations Act,
and he should be intitled [sic] to that protection.
Melissa Jacobs testified that, as she worked on March 8
in an area between the office and the shop at Respondent’s
Independence facility, she had overheard a ‘‘very angry’’
Dan Ellis say that ‘‘No damn union would come in and run
his business,’’ and the Kurtenbach had lied on his applica-
tion. Melissa Jacobs further testified that Janet Ellis, to
whom Ellis had been speaking, had ‘‘stated that that would
be a reason to get rid of’’ Kurtenbach, but that her husband
had retorted, ‘‘We have to think of another reason, we can’t
fire him for union activity.’’ Peterson, whom Melissa Jacobs
placed as having been present during at least the latter part
of that conversation between the Ellises, testified that she did
not remember Daniel Ellis having been angry on Monday,
March 8, nor on Tuesday, March 9. Still, neither Daniel nor
Janet Ellis denied that the conversation described by Melissa
Jacobs had taken place on Monday, March 8. And neither
one of them disputed Melissa Jacobs’ description of what
they had said during it.
Hicks testified that during the morning of March 8, he had
telephoned Respondent’s office and had spoken with Peter-
son. As he was telling her that he would not be able to re-
port to work that day, he testified, ‘‘I heard, in the back-
ground, Mr. Ellis cussing—throwing a fit, I guess,’’ and that,
among other remarks, Ellis had said, ‘‘if the fllg [U]nion
comes in, I am closing the doors.’’ According to Hicks, he
also overheard Janet Ellis attempting to calm down her hus-
band. While Peterson could not remember Daniel Ellis hav-
ing been angry that day, she did not contradict Hicks’s de-
scription of Ellis having spoken those words, overheard as he
had spoken with her. Nor did either Daniel or Janet Ellis
deny having spoken the words on March 8 that Hicks attrib-
uted to them.
If Peterson could not remember Daniel Ellis having been
angry on March 8 or 9, she did remember that on March 9
he had told Melissa Jacobs that he was going to close the
doors if the Union got in there. Melissa Jacobs did not con-
firm that Ellis had made those remarks to her on March 9,
but did testify that on the preceding date he had told Peter-
son and her, together, ‘‘not to go out and buy any large ap-
pliances, that we could be unemployed very shortly. And he
just made several references that the union would not be
there.’’ However, whatever the exact date of his remarks,
Ellis did not deny having spoken the words attributed to him
by Melissa Jacobs and, of perhaps greater significance, evi-
dence was supplied that confirmed Peterson’s account. Thus,
though he testified that he had not stated to Peterson that he
would close if the employees decided to join a union, he ad-
mitted that he stated in a prehearing affidavit, ‘‘Once I dis-
covered that the [U]nion was trying to organize my employ-
ees, I did not tell my employees that I would close the em-
ployer’s doors if they joined the [U]nion. I did make this
comment to Linda Peterson, the employer’s office secretary
at the time.’’
Confronted with that statement in his affidavit, Ellis testi-
fied that ‘‘there was more to it than that,’’ because Respond-
ent’s financial situation had been precarious at that time.
Also, he testified, Respondent was encountering difficulty
compiling information to support its application for a Small
Business Administration loan which, Ellis contended, had
given rise to concern about whether there would be enough
money for Respondent to meet its current payroll. This situa-
tion, he testified, had ‘‘very much’’ led him to say that he
might have to close; that his comments on March 8 had been
the result of his financial situation, having ‘‘Nothing at all’’
to do with his employees’ union activities. If so, that does
not square with the admission in his affidavit that he told Pe-
terson ‘‘that he would close the employer’s doors if [the em-
ployees] joined the [U]nion.’’ Indeed, his plea in avoidance
regarding that affidavit’s statement is further undermined by
his own admission that when Peterson asked if he truly
meant that he would close the doors, he told her that he did
not really intend to do so, but had just been upset when he
found out that his employees were thinking about the Union.
With regard to that particular remark, Peterson testified that
his remark to her had been that he had only made the com-
ment about closing the doors so that Melissa Jacobs would
communicate to her own husband what Ellis had said.
During the afternoon of March 9, Ellis made another ap-
proach to Melissa Jacobs concerning the Union. She testified
that he had told her that he wanted to have a conversation
with her ‘‘that never took place. And he plainly asked me
which way my husband was going to vote,’’ to which she
responded that while the two of them had discussed the pros
and cons of the Union, both believed that the choice was a
private one that was her husband’s to make. Ellis did not
deny having made those statements to Melissa Jacobs on
March 9. To the contrary, he conceded that he had asked her
how Kendall Jacobs was going to vote.
The most memorable event of Tuesday, March 9, occurred
at the end of the workday when Respondent laid off
Kurtenbach, Hicks, Mariani, and Fisher. A notice ‘‘TO ALL
EMPLOYEES’’ about the layoffs was prepared by Respond-
ent and, in pertinent part, reads:
Effective 3/9/93–5:30 pm the following employees are
regretfully laid off due to the completion of 2 projects
and lack of new work to start.
In the event our work load picks up you will be eligible
for rehire. . . .
The employees are:
1. Jeffrey Fisher
2. Ritchie Kurtenbach
3. Jeffery Hicks
4. Jon Mariani
However, as the hearing progressed, Respondent’s ‘‘comple-
tion of 2 projects and lack of new work to start’’ defense
encountered heavy going. And, ultimately, Daniel Ellis, testi-
fying as Respondent’s last witness, abandoned it altogether.
With respect to the March 9 notice’s layoff reason, Re-
spondent adduced evidence that two Iowa projects—the
Jesup Public Library and the Vinton Public Library—had
been completed by March 9, that two other projects—the
Grundy Maintenance Garage and Solon Secondary Schools—
had been scheduled to start in March, but commencement of
both had been delayed, and that bids on two remaining
projects—the Feather Light and phase two of Cresco Hos-
pital—had not come through, leaving Respondent as of
March 9 with work to be performed only on phase one of
Cresco Hospital, at Manchester Public Library, and on the
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
chapel and eighth floor medical center of the Iowa City Vet-
erans Administration Hospital. That portrayal of Respond-
ent’s supposedly limited work and prospects for work on
March 9 began to unravel in the light of certain other evi-
dence.
Most prominent was a conversation that had occurred be-
tween Kurtenbach and Daniel Ellis 5 days earlier, on Thurs-
day, March 4. Unbeknownst to Ellis, Kurtenbach had tape-
recorded the remarks exchanged. That tape was introduced as
an exhibit, along with a transcript of it, and was played dur-
ing the hearing, with the record of what was played appear-
ing on pages 63 to 71 of the transcript. Aside from ex-
changes of some personal comments, most of that conversa-
tion’s first portion’s remarks between Ellis and Kurtenbach
pertained to the situation at the V.A.
Toward the end of the tape, there was a discussion of Re-
spondent’s general work outlook. Substituting ‘‘K’’ for
Kurtenbach and ‘‘E’’ for Ellis, in lieu of the transcript’s
‘‘VOICE A’’ and ‘‘VOICE B’’ designations, the following
statements are shown to have been made during that con-
versation:
E: If you have anything that you need to talk about
it, I will be here Friday—well, Saturday,—I will be
here Saturday.
K: Saturday, okay.
E: Because I got a bid to put out. Tomorrow I am
busy. Trying to get some more work.
K: More? Man.
E: I will get it if you guys do it.
K: All right.
E: That work out at PMX [phonetic] is coming up
real soon, some nice work.
K: Is that that motor or that pump?
E: I have got that, they are not ready to do that yet,
I got some more stuff—
K: De-scaler???
E: —there is one that is going to be let this month,
the 22nd, they want to let the contract, and it is going
to be a big one. It will be six months of work right
there. Going to be a nice one.
K: How about the Solon School, then, when are we
starting that?
E: That is going to start Monday if the weather holds
out.
K: No kidding? How about the deal over in Grundy
then?
E: That is supposed to start the 18th, but, you know,
they have a lot of things to do before we are ready to
go in there.
K: Yeah.
E: We got a couple of months over there, at least.
K: Okay. March, yeah?
E: The 18th is when they are supposed to set the
panels up, precast, the Grundy job. All hell is breaking
loose right now—I love it.
Several points about that exchange are noteworthy in the
context of the ‘‘lack of new work to start’’ portion of the
March 9 layoff notice.
First, according to Ellis’ above-quoted statement, as of
March 4 Respondent intended to begin work on the Solon
Secondary Schools project ‘‘Monday if the weather holds
out.’’ In fact, by Monday, March 8, Virgil D. Lewis, Sr. had
begun work for Respondent—on the Manchester Public Li-
brary project—having been hired for the specific purpose of
supervising or coordinating work at the Solon project, once
it commenced. To be sure, midwestern weather soured
throughout the spring and summer, with the result that steady
work on the Solon Schools project did not actually begin
until May. Yet, while the disruptive effect of weather in that
area is by now well known, there is no evidence that Re-
spondent had known or could have known on March 9 that
the weather would become so bad through the spring that
commencement of work on the Solon Schools project would
be precluded for the next 2 months. That is, Respondent can
hardly latch on to subsequent events to retroactively supply
a state of mind for actions it took on March 9.
Second, as his above-quoted tape-recorded words show, on
March 4 Ellis had believed that the Grundy Center Mainte-
nance Garage project would ‘‘start the 18th,’’ although he
recognized that ‘‘they have got a lot of things to do before
we are ready to go in there.’’ Nevertheless, although Ellis
anticipated on March 4 that some delay in beginning work
at Grundy Center might be encountered, there is no indica-
tion that he had anticipated any such delay to be substantial
in length. Consequently, even though it turned out that the
Grundy Center project did not actually start until May, it
cannot be said that Ellis had realized on March 9 that so sub-
stantial a delay in starting that project would occur.
In sum, as to the two delayed start projects pointed to by
Respondent, the evidence shows that commencement of each
one had been delayed, but does not show that Respondent
had known or could have anticipated on March 9 that those
delays in commencement would be other than of short dura-
tion.
Third, Ellis testified that with respect to PMX Industries,
‘‘We had several jobs down there that were small in mag-
nitude, but they were—still we weren’t low bidders on
them.’’ However, as quoted above, on March 4 he said ‘‘I
have already got’’ the motor or pump mentioned by
Kurtenbach and, further, that a decision would be made on
March 22 regarding ‘‘a big’’ contract. So far as the evidence
discloses, nothing happened in the intervening 5 days, be-
tween March 4 and 9, to change that situation at PMX de-
scribed by Ellis.
The record reveals certain additional evidence pertaining
to PMX that should not pass unnoticed. As pointed out
above, Respondent maintains what Janet Ellis referred to as
‘‘labor sheets’’ for each of its projects. In each instance,
those sheets list by date the name of the employee or names
of employees who worked on a project and the number of
hours worked there by each employee for each date. Based
on that daily record, the labor sheets list the monetary
amount that Respondent charges for the work performed on
a project by Respondent’s personnel. Since Daniel Ellis testi-
fied that he rarely charges a contractor for work that he per-
sonally performs and since the labor sheets only rarely list
Ellis as having worked on a project on a particular date, ap-
parently the labor sheets do not disclose work that is per-
formed by Respondent but is not charged to the contractor
for a project.
During the hearing, Respondent introduced labor sheets for
a number of projects on which its personnel had worked:
Solon Secondary Schools, Vinton Public Library, V.A. Chap-
1195ELLIS ELECTRIC
el, V.A. Medical Center, Grundy Center Maintenance Ga-
rage, Jesup Public Library, Manchester Public Library and
Cresco Hospital. However, it did not produce labor sheets for
PMX projects. Yet, it is clear from another set of records
produced by Respondent that its employees, in fact, had
worked on a PMX project or projects in the wake of the
March 9 layoffs.
In addition to the labor sheets, Respondent produced a
daily calendar log for the period March 8 through May 9.
On them is listed for each date the identities of employees
assigned to projects on that date and the particular project to
which each one was assigned. In contrast to the labor sheets,
however, the calendar log does not disclose the number of
hours worked on those projects by employees assigned to
them. The significant point of that log with regard to PMX
is that review of it reveals that Terry Fox had been referred
to PMX on Friday, March 12, Saturday, March 13, and Fri-
day, March 19. Moreover, the then-newly rehired Jerald B.
Moore was assigned there on Monday, April 5, and on Tues-
day, April 6. In other words, consistent with Ellis’ above-
quoted remarks to Kurtenbach on March 4, Respondent had
actually possessed PMX work and had performed it after the
layoffs.
Standing alone, of course, dispatch of a couple of employ-
ees for a few days’ total work at PMX does not show suffi-
cient ‘‘new work’’ to necessarily refute the March 9 notice’s
assertion of lack of it. Yet, PMX was not the lone project
to which Respondent had assigned employees following the
layoffs, but for which no labor sheets were produced. Ac-
cording to Respondent’s calendar log, three employees—Ja-
cobs, Peter Paul Arbic, and Fox—had been assigned to
ICBP, also referred to as the Cob House, on Friday, March
19. Ten days later, on March 29, Lewis and Arbic were sent
there. The only pertinent testimony provided by Respondent
concerning that project was Janet Ellis’ account that ICBP
was a maintenance-type project and her husband’s testimony
that work there had not been available on March 9. Yet, no
labor sheets were produced to show how much work had
been performed for and charged to ICBP after March 9. Nei-
ther were such sheets produced for ‘‘Kum ’N Go’’ or
‘‘Come & Go’’—a project described by Janet Ellis as ‘‘more
or less a service kind of project that we were doing’’—to
which, according to the calendar log, Fox had been dis-
patched for part of Friday, March 12.
The possible existence of two additional projects is re-
vealed by examination of a list provided by Respondent
(G.C. Exh. 19) showing the job status of its projects as of
April 27. Included on it are an addition and remodeling
project for Immanuel Lutheran Church, and also, an addition
to the Howard Co. Medical Office. The list recites that, by
April 27, the former had been 100 percent complete and the
latter 95 percent complete. However, no evidence whatsoever
was produced by Respondent to show when the work on
those two projects had been performed.
Inasmuch as it is listed as 95 percent complete on April
27, obviously the medical office project had been ongoing as
of that time. As to the church project, the only testimony re-
garding it was that of Fox. But, while he testified that it had
started on October 6, 1992, he claimed that he could not re-
member when it had been completed. The fact that Respond-
ent had chosen to include those two projects on a list that
also enumerates the, as of March 9, recently completed
Vinton and Jesup Library projects, the then-ongoing Man-
chester Library and V.A. medical center and chapel projects,
and the then-soon to commence Solon Secondary Schools
and Grundy Center projects, coupled with the failure to
produce labor sheets for the church and medical office
projects, raise legitimate doubt concerning the completeness
of Respondent’s portrayal during the hearing of the work
available to its employees during March.
Additional evidence was presented that casts doubt on the
reliability of Respondent’s testimony that it did not need
Kurtenbach, Mariani, Fisher, and Hicks for work after March
9 on projects that Respondent acknowledged having then
been in progress. For, then-secretary Peterson described tele-
phone calls from the general contractor at both the V.A. and
at the Manchester Public Library projects seeking employees
to perform available work.
As to the latter, she testified that ‘‘Ray’’ had called after
the layoffs ‘‘wondering when someone was going to come
to the job site.’’ Although Respondent’s records show that
Lewis and Arbic had worked at the Manchester Library on
March 10 and 11, they disclose that none of Respondent’s
employees had worked there on Friday, March 12. Respond-
ent produced no explanation of where, or even if, those two
employees had worked on March 12. Lewis and Arbic again
worked at Manchester Library on Monday, March 15,
through Wednesday, March 17. But none of Respondent’s
employees worked there again, according to the labor sheets
for that project, until Wednesday, March 24, when Lewis re-
turned to it. In the interim, Arbic had worked at Cresco Hos-
pital on Thursday, March 18, and at ICBP on Friday, March
19, while Lewis had worked at V.A. on Thursday, March 18,
at ICBP on Friday, March 19, and at V.A. on Monday,
March 22, and on Tuesday, March 23. Significantly, with re-
gard to the assignment of Lewis to V.A., it had been at that
site that Kurtenbach had worked, both on the medical center
and chapel projects, fairly steadily since February 23: 11.5
hours on that date, 8 hours on February 24, and 10 hours
each day on March 1, 2, 3, 4, and 8.
It had been from the V.A. general contractor’s representa-
tive, Bud, that Peterson testified she had received a couple
of calls on 1 or 2 days a week after the March 9 layoff. Ac-
cording to Peterson, Bud ‘‘was very upset because no one
had been down there.’’ In fact, while Kurtenbach had worked
there during the approximately 2-week period prior to March
9, thereafter Jacobs worked there for 5 hours on Wednesday,
March 10, and for 10 hours on Thursday, March 11. But,
none of Respondent’s electricians worked at either the medi-
cal center or chapel on Friday, March 12. Jacobs resumed
working there from Monday, March 15, through Thursday,
March 18, the latter being a date when Lewis also worked
there. No one worked at the V.A. on Friday, March 19,
when, according to the calendar log, Jacobs and Lewis, as
well as Arbic, had been sent to ICBP.
Neither Daniel nor Janet Ellis contested Peterson’s de-
scriptions of the calls from Ray and Bud. That is, neither of-
ficial expressed any doubt that they had occurred. Moreover,
neither Daniel nor Janet Ellis advanced any explanation con-
cerning the calls from Bud. However, both testified that the
Manchester Library project had involved only intermittent
work and that Ray would call whenever an electrician was
needed there. Yet, the labor sheets for that project disclose
that a relatively significant amount of work had been per-
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formed there throughout March, sometimes by two employ-
ees and other times by only one electrician. Thus, total time
worked at the Manchester Public Library during March had
amounted to 7 hours on March 1, 11.5 hours on March 8,
10 hours on March 9, 10 hours on March 10, 20 hours on
March 11, 16 hours on March 15, 20 hours on March 16,
20 hours on March 17, 11 hours on March 24, and 10 hours
on March 25. Moreover, during the first part of the tape-re-
corded conversation on March 4, Kurtenbach and Ellis had
reviewed several matters at the V.A. that could soon be un-
dertaken. Indeed, that particular conversation is also signifi-
cant to another aspect of the March 9 layoff notice’s expla-
nation.
As described above, in connection with a lack of work as-
sertion, Respondent pointed to two projects that had been
substantially completed by close of business on March 9: the
Vinton Public Library and the Jesup Public Library. How-
ever, Daniel Ellis placed completion of the Vinton project as
having occurred toward the end of February and his wife
precisely placed it as having occurred on February 22. In
fact, her testimony is confirmed by the labor sheets for that
project. They show that after February 22 there had been no
work there again until May 17, for that single day. However,
since that project’s last day had been February 22, that
means that Respondent had been aware of its completion by
the time of the March 4 conversation between Kurtenbach
and Ellis. Yet, while the two men discussed future work dur-
ing the conversation, as reproduced above, Ellis made no
mention whatsoever of the Vinton Library’s completion nor,
more specifically, of any possible adverse impact of its com-
pletion on future work that would be available for Respond-
ent’s electricians.
Similarly, Ellis did not express any concern during that
March 4 conversation about Respondent’s failure to succeed
on the Feather Light bid. But Daniel Ellis testified that he
had learned on Monday, March 1, that Respondent’s bid had
not been selected. In sum, despite both completion of the
Vinton Library project and failure to successfully bid for the
Feather Light project, during the March 4 conversation, when
Kurtenbach expressed surprise that Ellis was bidding for
even more work—‘‘More? Man.’’—Ellis replied optimisti-
cally, ‘‘I will get it if you guys do it,’’ concluding discussion
of the subject of future work by exclaiming, ‘‘All hell is
breaking loose right now—I love it.’’ At no point on nor
prior to March 9 does the evidence show that Respondent
had viewed the Vinton Library’s completion and the failure
to bid successfully for the Feather Light project as any basis
for concern about the availability of future work for its em-
ployees.
To the contrary, Ellis’ above-quoted words to Kurtenbach
reveal nothing but optimism about future work based on its
bids for additional projects. In fact, Ellis testified that the
plans for a second phase of the Cresco Hospital project had
come out in February or March and that Respondent had
been preparing in February to bid on that phase of that
project. As it turned out, cost overruns on phase one of it
caused phase two to be postponed. However, there is no evi-
dence that the postponement had occurred by March 9. Nor
is there evidence that Respondent likely would have antici-
pated that postponement on that date.
Although the Jesup Public Library project had been sub-
stantially completed on March 9, there was work there that
remained to be done after that date. Hicks estimated the
amount of it to be 40 hours each for two employees; Jacobs
estimated approximately 50 hours of work that remained at
Jesup after March 9. In fact, both Daniel and Janet Ellis
agreed that there had remained punch list work—items that
needed to be finalized as a result of the contractor’s walk-
through—to be performed at the project after March 9.
Moreover, consistent with Hicks’s estimate, Daniel Ellis tes-
tified that he and his wife had spent ‘‘about four or five
days’’ doing it. Both of them testified that Daniel Ellis ordi-
narily did punch list work. If so, that left the Ellises fairly
busy during March, for they testified that they also had re-
placed stranded wire that had been mistakenly installed at the
V.A. project. Since Respondent did not charge the contractor
for any of that work, there is no labor sheet record that
would disclose that the actual number of hours spent by Dan-
iel and Janet Ellis rewiring had been insignificant in number.
The evidence reviewed in the preceding paragraphs tends
to seriously diminish, if not undermine completely, the
‘‘completion of 2 projects and lack of new work to start’’
explanation advanced by Respondent’s March 9 layoff no-
tice. Having sat through the hearing observing receipt of that
evidence, Daniel Ellis then took the stand as Respondent’s
witness and, questioned during direct examination, abruptly
disavowed his own layoff notice’s explanation:
Q. As of March 9, 1993, what was the state of your
economic situation at Ellis Electric with regard to work
being conducted?
A. Well, we didn’t have enough money in the pay-
roll to keep people on.
Q. How many—did you have enough jobs to go
around?
A. We had plenty of work.
To be sure, thereafter counsel got Ellis back on the track of
the explanation advanced in the layoff notice. However,
while Ellis then testified that Respondent had work only at
Cresco, Manchester, and the V.A., he never retreated from
his testimony that, as of March 9, ‘‘We had plenty of work.’’
To the contrary, his testimony regarding his choice of em-
ployees laid off on March 9 pertained more to the ‘‘hav[ing]
enough money in the payroll’’ defense, than to a lack of
work one.
On its face, Ellis’ assertion about lack of sufficient funds
to meet Respondent’s payroll during the week of March 8
through 12 conflicted with the admitted fact that both Lewis
and Melissa Jacobs had started work on March 8 and had
been allowed to work throughout that week. Moreover, in
contrast to the lack of work assertions, in support of which
considerable documentation was produced by Respondent, no
documentary evidence was produced to support Ellis’ testi-
mony that, as of March 9, ‘‘we didn’t have enough money
in the payroll to keep people on.’’ Respondent did produce
a balance sheet for its operations ‘‘as of May 31, 1993, and
the related statements of income for the five months then
ended.’’ Yet, that date is almost 3 months after the decision
had been made and implemented to lay off Kurtenbach,
Mariani, Fisher, and Hicks.
It is not possible to ascertain from a review of the balance
sheet and related statements Respondent’s payroll situation as
of March 9. Moreover, the reliability of recitations in those
1197ELLIS ELECTRIC
5 Interestingly, the calendar log for March 10 makes no mention
of Arbic and Lewis having worked at the Manchester Public Library
site on Wednesday, March 10. Instead, it shows them as having
worked at the Solon Secondary Schools project on that date. Accord-
ing to the Solon labor sheets they did work there on March 10, but,
as at the Manchester Public Library on that same date, only for 5
hours each. The calendar log does contain entries on March 11, 16,
and 17 for Arbic and Lewis working at Manchester Public Library.
However, for March 15 it contains no mention that they worked
there, though the labor sheets for that project show that each one
did 8 hours’ work there on that date. Instead, the calendar log for
March 15 lists Arbic and Lewis as working at Solon Secondary
Schools. In fact, the labor sheets for that project do show that they
had worked at Solon on March 15, but only labor of 2 hours for
each man in charged to that project for that date.
documents was carefully qualified by the certified public ac-
countants who had prepared them. Thus, in their June 23
cover letter those accountants stated:
A compilation is limited to presenting in the form of
financial statements information that is the representa-
tion of the owners. We have not audited or reviewed
the accompanying financial statements and, accordingly,
do not express an opinion or any other form of assur-
ance on them.
The owners have elected to omit substantially all of
the disclosures and the statements of proprietor’s capital
and cash flows required by generally accepted account-
ing principles. If the omitted disclosures and statements
were included in the financial statement, they might in-
fluence the user’s conclusions about the Company’s fi-
nancial position, results of operations, and cash flows.
Accordingly, these financial statements are not designed
for those who are not informed about such matters.
In sum, other than the testimonial assertions of Daniel Ellis,
there is no evidence whatsoever to support the belatedly-
raised defense that on March 9 Respondent ‘‘didn’t have
enough money in the payroll to keep people on.’’
D. The Terminations of Melissa and Kendall Jacobs
The March 9 layoffs did not deter the Union from continu-
ing its campaign to organize Respondent’s electricians. As
set forth in subsection III,C, supra, it secured a signed au-
thorization card from Arbic on March 18. Also as stated in
that subsection, on March 11, Field Examiner Reid sent a let-
ter to Daniel Ellis confirming their preceding day’s telephone
conversation. Included with Reid’s letter was a Stipulated
Election Agreement. It provided for an election on April 16
in a unit of all employees performing electrical work, but ex-
cluding office clerical employees, professional employees,
guards and supervisors as defined in the Act. That same unit
has been pled as appropriate in the complaint. Respondent
admits that it is.
Nor did the March 9 layoffs put an end to Daniel Ellis’
statements to employees about the Union. Melissa Jacobs tes-
tified, without contradiction, that on Friday, March 19, she
asked Ellis for a duplicate key for her husband’s locked gang
box and that, as he gave the key to her, he remarked, ‘‘that
no union supervisor would have done that for me.’’
After initially waffling about the subject, when interro-
gated by the General Counsel, Arbic ultimately acknowl-
edged that he believed, as stated in his prehearing affidavit,
that on Saturday, March 20, at the Manchester Library
project, he had overheard Ellis saying to Virgil Lewis that
he (Ellis) would close his doors if the Union organized his
employees. Neither the project labor sheets nor the calendar
log show that any employees had worked at Manchester Pub-
lic Library on March 20. However, the labor sheets for that
project do disclose labor charges for Lewis and Arbic having
worked there for 5 hours each on March 10, for 10 hours
each on March 11, for 8 hours each on March 15, and for
10 hours each on both March 16 and 17.5 Thus, though
Arbic obviously erred about the exact date of Ellis’ remarks
to Lewis, Respondent’s own records show that Lewis and
Arbic had both worked on the Manchester Public Library
project on dates proximate to March 20. More importantly,
aside from his general denial of having threatened to close
if Respondent’s employees became unionized, Ellis did not
specifically deny having made such a threat to Lewis at that
project.
Arbic also described another conversation in March, this
time between Ellis and himself. During it, Arbic had re-
quested a raise. According to Arbic, Ellis had responded that
‘‘he needed me on the 16th, on the vote, he needed me, but
he didn’t tell me which way to go on it.’’ Further, testified
Arbic, ‘‘he asked me what would make me happy,’’ after
which Arbic ‘‘told him I wanted a dollar,’’ and Ellis ‘‘agreed
to give me 50 cents. He says he knew that I was worth more,
and I had an attitude problem, and he was willing to go
ahead and give me 50 cents now and 50 cents in 30 days.’’
In fact, according to Arbic, he did receive a 50-cent raise in
his paycheck for April 1 and another 50-cent raise 30 days
later. Daniel Ellis did not testify regarding this conversation
and, consequently, Arbic’s description of what had been said
is uncontroverted.
As might be expected, the General Counsel emphasizes
Ellis’ remark that ‘‘he needed [Arbic] on the 16th, on the
vote.’’ However, Arbic denied that either of the raises had
been conditioned in regard to the Union. The problem with
that denial is that, as Arbic was testifying, it appeared that
he was attempting to do so in a manner that would cause the
least injury to Respondent’s interest and, perhaps, to his own
interest in continued employment with Respondent. As a re-
sult, both in connection with Ellis’ above-described over-
heard remark to Lewis and with respect to a later statement
to Arbic, while giving the latter a gang box key, ‘‘This in-
volves a lot of trust. I am still going to need you, Pete, on
April 16,’’ Arbic initially claimed that he could not remem-
ber what Ellis had said on either occasion. In consequence,
his ‘‘memory’’ had to be refreshed from his prehearing affi-
davit.
After being shown his own descriptions in that affidavit of
what Ellis had said, Arbic fell back on the explanation that
‘‘I was pretty drunk when I gave the [affidavit]’’; that ‘‘I
would say I was drunker than a two-ton tank by the time I
was giving my [affidavit] there’’ and ‘‘I would have prob-
ably signed anything right there that night.’’ Nonetheless,
pressed by the General Counsel, Arbic grudgingly conceded
that he ‘‘for the most part’’ did recall the events described
in his affidavit and, in fact, that Daniel Ellis had made those
statements, at least ‘‘somewhere along those lines.’’
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
With respect to the 50-cent raises, Arbic claimed that he
had requested a raise because Respondent had begun sending
him to the Cresco Hospital project and that assignment
forced him to begin ‘‘spending $12.00 a day in gas, and I
wanted either driving time or gas paid or a pay increase to
compensate for the extra travel.’’ In addition, testified Arbic,
when he had approached Ellis concerning the raise, he had
also ‘‘wanted to hear the issues. I wanted to hear his side
of the story’’ concerning the representation election then
scheduled, pursuant to the Stipulated Election Agreement, for
April 16. Yet, Arbic’s seeming effort to portray discussion
of the raise and the election as separate and distinct aspects
of a single conversation falters on the above-recited descrip-
tion of Ellis’ remarks about needing Arbic ‘‘on the 16th, on
the vote, he needed me,’’ and on the sequence of his imme-
diately following question as to ‘‘what would make [Arbic]
happy.’’ Furthermore, at no point did Ellis, himself, provide
testimony that he had regarded and had treated the two sub-
jects as having been separate aspects of a single conversa-
tion. Nor did Ellis even claim that his effort to ‘‘make
[Arbic] happy’’ with raises had been related to Arbic’s dis-
pleasure at having to drive to the Cresco project or, con-
versely, unrelated to their undisputed discussion of the up-
coming election during that same conversation.
Prior to March 10, aside from signing an authorization
card and engaging in limited discussion with other employ-
ees, Kendall Jacobs had kept private his attitude about the
Union and its organizing campaign. So far as the evidence
discloses, Daniel Ellis had no knowledge of Jacobs’ feelings
concerning the subject. However, on Friday, March 19, Ja-
cobs affixed to his truck’s rear bumper a sticker which read:
‘‘America works best on union.’’ When the truck’s brakes
malfunctioned before he and Lewis left Respondent’s Inde-
pendence facility for the V.A. projects on Monday, March
23, Jacobs left the truck in Respondent’s parking lot. From
the facility’s front door the bumper sticker could be read.
Daniel Ellis admitted that later that same day he had cov-
ered the bumper sticker with what former secretary Peterson
described as duct tape. He testified that he had done so be-
cause a customer had come into Respondent’s facility during
that day and had said that ‘‘he wasn’t aware of our union
affiliation at all, and that if we were going to be a union
contractor that he wouldn’t deal with us anymore.’’ Ellis fur-
ther testified that Peterson may have overheard that pur-
ported comment by the customer, but Ellis asserted that it
had been made to him, not to her.
That latter testimony pertained to Peterson’s earlier ac-
count that she had not heard any one speak that day to Dan-
iel Ellis about the bumper sticker. But she testified, a friend
of the Ellises, who was not a customer of Respondent, had
dropped by the office that day and had observed to her (Pe-
terson) that ‘‘Kendall shouldn’t be allowed to park his vehi-
cle on Dan’s property with that bumper sticker on. That he
should park it across the road.’’ Respondent never did call
as a witness the purported customer who supposedly had an-
nounced withdrawal of his business after having seen the
bumper sticker. Yet, there was no representation that such an
individual was not available to Respondent as a witness. In
fact, at no point did Ellis even identify that asserted person
by name.
In the course of his telephone conversations with Respond-
ent’s office personnel during March 23, Kendall Jacobs had
learned that tape had been placed over his bumper sticker.
However, most of it had been removed by the time that he
had returned to Respondent’s facility at approximately 5:15
p.m.
Daniel Ellis was still at the facility when Jacobs returned
to it on March 23 and a conversation ensued between the
two men. Among the comments exchanged, according to Ja-
cobs, Ellis said that after seeing the bumper sticker a cus-
tomer said that he did not want to do business with Respond-
ent, that Ellis did not want Jacobs’ vehicle on Respondent’s
property and around its equipment as long as it had the
bumper sticker on it, and that, ‘‘This is the type of gratifi-
cation that [Jacobs] gave [me] for helping you out in your
troubled times, giving your wife a job, keeping you on the
high-paid jobs down in Iowa City.’’ Ellis did not contest Ja-
cobs’ description of the words spoken during that conversa-
tion. To the contrary, he admitted having told Jacobs not to
park his truck on Respondent’s property so long as the stick-
er remained affixed to its bumper.
After that conversation with Ellis, Jacobs went home and
his wife informed him that she had been fired. Melissa Ja-
cobs testified, without contradiction by Ellis, that the latter
had telephoned her about 6 p.m. on March 23 and had said,
‘‘I think it would be better if you no longer worked here,’’
to which she had responded ‘‘Okay’’ and had hung up.
In his prehearing affidavit, Daniel Ellis stated that he had
decided ‘‘to terminate Melissa because she was a trouble
maker and was nosy, and since Kendall was involved with
the [U]nion, and there was a lot of talk and activity going
on about the [U]nion at that time,’’ he had ‘‘felt [he] did not
need the extra hassle of having Melissa as an employee[.]’’
Asked if that statement in his affidavit had been accurate,
Ellis replied that it was only ‘‘partially correct.’’ Asked to
explain that answer, he testified:
She was away from her work area. When the phone
would ring, she would come up front to see who was
on the phone. And the door would open up, she would
rush up to see who was coming in. And she was just
disrupting the whole flow of work up front.
. . . .
She did a lot of walking up front to the office there,
whether it was for information or what.
. . . .
She just disrupted the work flow up in the office.
Although Melissa Jacobs denied having rushed into the
front office whenever the phone rang, Peterson testified that
Melissa Jacobs had been ‘‘continually in the office. Any time
the telephone rang, she would come running into the office
and she would ask who was on the telephone.’’ Yet, Daniel
Ellis admitted that at no point had he spoken to Melissa Ja-
cobs about that conduct. He further conceded that he had re-
garded her as a responsible employee and, in fact, that she
had finished ‘‘[m]ost of the inventory’’ during her approxi-
mately 2 weeks of work for Respondent. More importantly,
neither Ellis nor any other witness provided any particular-
ized description as to how Melissa Jacobs’ frequent trips to
the front office had ‘‘disrupted the work flow’’ there, as he
twice asserted. In fact, his wife, Respondent’s office man-
ager, did not corroborate his assertion that Melissa Jacobs
had ‘‘disrupted the work flow up in the office.’’ Further-
1199ELLIS ELECTRIC
more, if her work activities had truly been the sole reason
for her termination, Daniel Ellis never explained why he had
referred to her husband’s union involvement in his affidavit’s
above-quoted description of his motivation for having de-
cided to fire her. Nor did he explain his above-quoted affida-
vit’s reference to ‘‘a lot of talk and activity going on about
the [U]nion at that time’’ in connection with that decision.
Respondent’s statements pertaining to Kendall Jacobs’
bumper sticker did not cease with the March 23 conversation
between him and Daniel Ellis. It is undisputed that on
Wednesday, March 24, or on Thursday, March 25, Janet Ellis
instructed Peterson ‘‘that if Kendall comes on the property
that I should dial 911’’ because ‘‘he wasn’t allowed on the
property with that sticker on his truck.’’
According to Respondent’s records, Jacobs worked 8 hours
at the V.A. project, on the chapel portion, on March 25. He
testified that as he had been working on the scaffolding
there, Daniel Ellis arrived and began ‘‘bitch[ing] me out’’
about damage done to Respondent’s gang box—essentially,
a large metal box on rollers in which a contractor stores its
tools and supplies on a job site—complaining ‘‘that it looked
like somebody took target practice at it.’’ Jacobs testified
that, at that time, he was unaware that any damage had been
done to the gang box and that he said as much to Ellis: ‘‘I
said, ‘What are you talking about? I don’t know that any-
thing happened,’’’ and, when Ellis repeated ‘‘that there was
damage done to his gangbox. . . . I said ‘Well I don’t know
about your equipment. I haven’t noticed it.’’’ Nonetheless,
according to Jacobs, Ellis ‘‘continued to bitch me out,’’ con-
cluding with a direction to ‘‘Keep your fllg vehicles off
my property,’’ and with the assertion that, ‘‘I don’t want
them near my property.’’ Daniel Ellis did not dispute Jacobs’
description of those March 25 statements.
As the April 16 election date approached, Jacobs began
making signs for each day: ‘‘16 days and counting, vote yes
for the electrical union,’’ ‘‘15 days and counting, vote yes
for the electrical union,’’ and so on. On approximately
March 31 he taped one such sign to his personal gang box
and left another propped on the eighth floor of the V.A.
Medical Center where he and Lewis were then working. Ac-
cording to Jacobs, Ellis came to the site that day, pointed to
one of the signs, asked if it was Jacobs’ sign, ‘‘got very
angry’’ when the latter apparently acknowledged that it was,
and told Jacobs ‘‘to get the fllg wires pulled’’ on the job.
Jacobs testified that when he next returned to that location
of the project, the sign propped on the floor had disappeared.
Ellis acknowledged having seen both signs that day, one
on Jacobs’ gang box and another propped up on a light bulb
case. Ellis denied generally having ‘‘confront[ed] Kendall Ja-
cobs or anybody else about the’’ signs, but did not deny with
particularity having uttered the remarks that Jacobs attributed
to him. As to the one sign’s disappearance, according to
Ellis, Lewis ‘‘and I were up there doing the light fixtures,
and [Jacobs] had the sign propped up on a light bulb case.
And when we were using the case, I took it down, stuck it
in the case because I didn’t want to just throw it on the
floor.’’ Though called as a witness, Lewis did not corrobo-
rate that testimony by Ellis. On the other had, Jacobs never
testified that he had looked in the light bulb case when he
had returned to that location that day.
Jacobs testified that he next had seen Ellis on Friday,
April 2 when, during mid-morning, the latter asked Jacobs
for all of Respondent’s keys ‘‘because we are going to part
ways today,’’ and ‘‘he handed me a termination letter.’’ The
text of that letter reads:
Effective today your employment with ELLIS
ELECTRIC is terminated.
Reasons being are as follows:
1. Insubordination—when I directed you to work 5–
8 hour days at the VA Hospital, you took it upon your-
self to assume it would be alright to alter that schedule.
It was not. Also, when directed to stop at the shop at
5:00 am one morning you refused to do so.
2. Malicious destruction of company property while
under your responsibility. This being on federal prop-
erty, this is a federal offense and the authorities are in-
vestigating. Charges will be filled.
3. Attitude—Since your return from incarceration
your attitude toward me and this company has gotten
worse by the day.
When he testified, Daniel Ellis was interrogated concern-
ing his motivation for having decided to fire Jacobs:
Q. Was your decision to terminate Mr. Jacobs based
on his union activities?
A. Not at all.
Q. What was it based on?
A. Can’t keep a guy working for you that won’t fol-
low instructions.
Q. You had given him specific instructions?
A. Yes, sir, I did.
Q. And he hadn’t followed them?
A. Yes.
With his attention thus focused specifically on his termi-
nation reason, Daniel Ellis made no mention whatsoever of
the above-quoted letter’s second and third grounds. As it
turned out, with good reason.
With respect to the ‘‘malicious destruction of property’’
reason, Ellis acknowledged that he had no evidence that Ja-
cobs had damaged the gang box. During a state hearing, aris-
ing from Respondent’s appeal of a job service representa-
tive’s conclusion that Jacobs had not engaged in willful or
deliberate misconduct, both he and his wife pointed out that
the termination letter’s second reason had been not that Ja-
cobs had actually damaged the gang box, but that it had been
‘‘under his supervision at that job cause he was the one on
the [V.A.] job at the time.’’ However, Respondent adduced
no evidence that its practice had been to designate one indi-
vidual at each project as a supervisor responsible for what
occurred there to Respondent’s equipment, especially given
the rotation of employees among projects shown by the labor
sheets and calendar log.
In any event, while continuing to maintain during the state
hearing that Jacobs had been ‘‘responsible for all the com-
pany tools on the project,’’ Daniel Ellis eventually retracted
damage to the gang box as a reason for having terminated
Jacobs on April 2: ‘‘No, no. No, no. He was not fired based
on that destruction of the gang box. He was fired because
he wouldn’t do what he was told.’’ If so, that also eliminates
the ‘‘Attitude’’ reason, listed as the third enumerated ground
for termination in the April 2 letter.
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In contrast to the destruction of property one, however,
Respondent did not altogether abandon the attitude reason
during this proceeding. Jacobs denied specifically that he had
displayed a poor attitude toward Respondent while employed
by it. But, Respondent contends that Jacobs had admitted as
much when he testified, during the state hearing, ‘‘My atti-
tude went bad toward the company’’ following his return
from 10 days’ incarceration in Wisconsin during January.
Yet, although Jacobs did make that statement, in context it
appears to have been no more than a restatement of the ad-
ministrative law judge’s direction of the issue that he wanted
Jacobs to address, rather than an admission of impropriety:
Q. The—the—Mr. Jacobs, the issue is your attitude
not Mr. Ellis’ attitude.
CLAIMANT: Okay. My attitude went bad toward the
company. There was a union—an electrical union that
was trying to be brought in. Dan had hired a guy that
was in the union for 12 years and found out that he was
with the union and then laid him off the next day.
And—
Q: Is it—is it true, Mr. Jacobs that your attitude be-
came negative toward the company?
CLAIMANT: No, it did not.
Q: Well, we don’t want to hear any of these com-
plaints that you have against the company. The issue is
what you did, not what Mr. Ellis did.
CLAIMANT: My attitude was good. It was the attitude
of the employer that changed.
With regard to its own evidence of a purportedly poor atti-
tude by Jacobs, Respondent presented three of its current em-
ployees—Fox, Moore, and Arbic—each of whom testified
that Jacobs had displayed a poor attitude toward Daniel Ellis
and Respondent. Yet, at the outset, although Daniel Ellis de-
scribed ‘‘some of the backfeed I was getting from my em-
ployees of the bad mouthing that was going on behind my
back’’ by Jacobs, Ellis did not describe that asserted
‘‘backfeed’’ with any particularity. And, not one of those
three employees testified that he had reported to Ellis any
‘‘bad mouthing’’ on the part of Jacobs, at least not by April
2.
Beyond that, their accounts of supposed display of bad at-
titude by Jacobs were either so vague as to be unreliable or
at odds with the Ellis’ description of the supposed problem.
Thus, as to the former, Arbic testified that, from his observa-
tion, Jacobs ‘‘had a piss-poor attitude toward Dan, the way
that he was running the operation.’’ Yet, Arbic admitted that
he could not ‘‘recall and state’’ anything derogatory that Ja-
cobs ever had said about Daniel Ellis: ‘‘Nothing I can recall
specifically, no.’’ Indeed, in the end, Arbic’s testimony
seemed to show that his own characterization of ‘‘piss-poor
attitude’’ by Jacobs related to the latter’s union support. For,
his least vague description of Jacobs’ attitude was Arbic’s as-
sertion that Jacobs ‘‘was out to take Dan down’’ because Ja-
cobs ‘‘wanted to go union so bad, I would think anybody he
worked for, he just . . . would use him as a stepping stone
to get into the [U]nion.’’
Moore testified that he regarded Jacobs’ attitude as
‘‘poor’’ because Jacobs complained about ‘‘the way [Ellis]
was running his business,’’ and at the end of a PMX job had
written in the dust on a ceiling box, which only Daniel Ellis
would see on the following day, ‘‘Fl you.’’ If so, Ellis
never testified that he had seen that dust-written statement.
Nor did Moore testify that he had reported to Ellis what Ja-
cobs supposedly had written. Moore did testify that the ceil-
ing box incident had occurred ‘‘between October 6th . . .
and October 30th,’’ 1992, the date of Moore’s 1992 layoff.
The problem with that testimony is that, even if the incident
had occurred, clearly the Ellises never learned about it.
‘‘Very satisfactory’’ was how Daniel Ellis characterized Ja-
cobs’ attitude prior to the latter’s January incarceration. Both
he and his wife claimed that the purported attitude problem
had not surfaced until after then. And, at no point between
Moore’s rehiring on March 23 and Jacobs’ discharge on
April 2 did either Daniel or Janet Ellis claim to have learned
of the asserted ceiling box incident described by Moore.
Fox testified generally that Jacobs had ‘‘a poor attitude
. . . Like he didn’t care,’’ and that Jacobs would complain
about Daniel Ellis’ failure to bring the materials needed to
jobsites. However, Fox never testified that he had conveyed
those purported observations to Daniel or Janet Ellis prior to
April 2. Moreover, he never described when he had sup-
posedly observed Jacobs engaging in that conduct. In fact, he
admitted that he had worked with Jacobs only ‘‘maybe one
day’’ following the latter’s return from incarceration: on Jan-
uary 29 at Manchester Public Library. Absent some fairly ex-
treme conduct, which Fox never claimed had occurred on
that date, a single day’s observations is hardly a substantial
basis for concluding that someone just ‘‘didn’t care.’’
The only other predischarge conduct that might be charac-
terized as a display of poor attitude by Jacobs was the testi-
mony of Janet Ellis that, ‘‘after he came back from being in-
carcerated, he just didn’t care. He was rude.’’ As had been
true of Fox’s like assertion, she never explained what she
had meant by ‘‘didn’t care’’ and provided no descriptions of
conduct displaying such an attitude. As to her testimony that
Jacobs had been rude, Janet Ellis testified that he had done
so ‘‘[q]uite a few times,’’ but never described with particu-
larity even one such instance of purported predischarge rude-
ness by Kendall Jacobs.
Respondent’s willingness to freely charge Jacobs with
rudeness, when none had occurred, was shown by an incident
described by Peterson. Shortly before his termination, she
testified, Jacobs had called about some material for the V.A.
project that he had neglected to pick up at Respondent’s
Independence facility. According to Peterson, after speaking
with Jacobs on the phone, Janet Ellis had told her husband
that ‘‘Kendall had bitched me [Peterson] out and her out.’’
Peterson testified, ‘‘I spoke up right away, and I just said,
‘I didn’t think that was bitching.’’’ Although not completely
dispositive of Jacobs’ words to Janet Ellis during that tele-
phone conversation, Peterson also testified that she had lis-
tened to Janet Ellis speaking with Jacobs during that con-
versation and that the conversation had ‘‘seemed to be very
cordial. Janet didn’t seem that upset about it, but she did call
Dan right away.’’
In the final analysis, as quoted above, Daniel Ellis actually
discarded the property destruction and attitude reasons ad-
vanced in his April 2 letter and relied exclusively instead on
the first assertion enumerated in that letter. From the se-
quence of events described by Daniel and Janet Ellis on
April 1 and 2, that assertion of insubordination rests exclu-
1201ELLIS ELECTRIC
sively on the number of hours worked by Jacobs at the V.A.
from Monday, March 29, through Thursday, April 1.
There really is no dispute about what had occurred there
that week. Earlier the general contractor for the V.A. project
had given notice that it wanted Respondent’s electricians to
work 5 days a week there, instead of the 4 10-hour days per
week that they had been working. Respondent then notified
all its employees, in writing, ‘‘that no one was to work over
40 hours unless authorized by the office.’’ According to the
labor sheets for the project, Jacobs had worked there 9.5
hours on Monday, 10 hours on Tuesday, 9 hours on Wednes-
day, and 9 hours on Thursday, a total of 36-1/2 hours. On
Friday, April 2, he worked there 2-1/2 hours, but, of course,
he was terminated midmorning. However, he testified that he
had already spoken to the general contractor’s representative
about his situation that week, saying that he would be at the
site for ‘‘a couple hours in the morning on Friday,’’ and that
the representative had agreed to that arrangement, telling Ja-
cobs, ‘‘That is fine. . . . I can understand the situation you
are in.’’
The situation referred to by the general contractor’s rep-
resentative concerned certain events that had led Jacobs to
remain at the site longer than 8 hours on Monday through
Thursday of that week. On Monday, he had remained at the
request of the general contractor who had abruptly called an
afternoon meeting ‘‘to go over some changes in the blue-
prints and in the electrical work’’ and wanted someone from
Respondent to attend that meeting. On that day Jacobs had
been the lone employee of Respondent working there. On the
following days Lewis had been sent there ‘‘to help me pull
wires and get some of the piping done that had to be done
so we wouldn’t fall behind on the job’’ and, as pulling wires
‘‘takes two people’’ and as Lewis had been ‘‘directed . . .
to work 10-hour days’’ there, Jacobs had stayed ‘‘to get the
job done instead of putting everything away and having to
get it all back out the next morning.’’
Jacobs testified that he had tried to contact Daniel Ellis on
March 29 regarding the contractor’s meeting, but had been
unable to reach Ellis. Jacobs further testified that he again
had attempted to contact Ellis on March 30, concerning the
need to work with Lewis pulling wires, but, once more, Ellis
was not at the office, having gone to a different jobsite. On
March 31, testified Jacobs, Ellis had been at the V.A.
project, but the two men had not spoken. Interestingly, dur-
ing the state hearing, Ellis gave testimony that he did not re-
peat during the hearing in this proceeding. During that hear-
ing, conducted by telephone, he testified that ‘‘I was down
there with the other employee and he and I were working on
another project at the same facility [as Jacobs],’’ and, further,
that Jacobs had ‘‘asked me if he should stay over and I says
no, your shift is over—leave.’’ Ellis did not explain his rea-
son for abandoning that supposed sequence of events during
this proceeding.
Somewhat confused is the testimony concerning the other
insubordination incident referred to in the April 2 termination
letter: ‘‘Also, when directed to stop at the shop at 5:00 one
morning you refused to do so.’’ Indeed, ultimately Jacobs
provided a perhaps better case for Respondent than did Dan-
iel Ellis. Thus, Jacobs testified that during the evening of
March 29 his wife had awakened him, saying that Ellis was
on the phone. During their ensuing conversation, testified Ja-
cobs, Ellis ‘‘asked, if possible, if I could stop at the shop
that morning to maybe pickup parts and get a tank of gas
from him.’’ Both men agreed that the time designated had
been 5 a.m. But, Ellis testified that Jacobs had agreed firmly
to be there, while Jacobs testified, ‘‘I didn’t know why he
was offering me a tank of gas at that time. Something was
fishy,’’ and, as a result, he had told Ellis merely, ‘‘Well, I
will think about coming into the shop and getting a tank of
gas.’’
According to Jacobs, after concluding the telephone con-
versation, he thought about ‘‘the two incidences [sic] the
week before about the [U]nion’’ and the fact that his sched-
uled starting time was 7 a.m. Jacobs decided that ‘‘some-
thing wasn’t right about what he was asking me to do now.’’
In that regard, Jacobs gave a somewhat more complete ex-
planation for that decision when testifying during the State
hearing: ‘‘an employee . . . told me that [Ellis] was trying
to set me up for stealing gas because . . . if I put my vehi-
cles on the property he was going to dial the police at 911
to have me taken off.’’ In fact, as described above, the latter
had been the exact course that Janet Ellis had directed Peter-
son to follow if Jacobs did bring his vehicle onto Respond-
ent’s property.
Peterson testified that she had been told by Janet Ellis that
an arrangement had been made between her husband and Ja-
cobs whereby the latter would be given a tank of gas for
transporting tools to the V.A. site. If so, that would mean
that Jacobs’ failure to show up at 5 a.m. could have been
construed as a failure to perform the work of transporting
tools to a site. But, when Daniel Ellis appeared as a witness,
he testified that his March offer of a tank of gas had been
‘‘for hauling materials down to the job site about three
weeks prior to this.’’ Further questioning led him to reaffirm
that Jacobs had already transported the materials to the job
and that the offer of gas had been made strictly for Jacobs’
benefit. When it then was pointed out that, in effect, that an-
swer meant that Respondent had suffered no detriment as a
result of Jacobs’ nonappearance, Ellis answered that it had
been ‘‘an inconvenience for me, I didn’t have to be there at
5:00 in the morning.’’ However, that ended all further men-
tion of insubordination by virtue of the failure of Jacobs to
be at Respondent’s facility that morning.
A series of incidents accompanied distribution to Jacobs of
his final paycheck on Friday, April 9. Respondent acknowl-
edges that it ordinarily distributes paychecks on Thursday of
each week. It is not disputed that, when she had arrived for
work on Thursday, April 8, Peterson had been handed Ja-
cobs’ final paycheck, but had been instructed by Janet Ellis
to tell Jacobs, when he called about the check, that it would
not be ready until after 1 p.m. on the following day. Peterson
testified, without contradiction, that when she inquired about
the reason for that instruction, Janet Ellis had ‘‘said that they
were going to give Kendall his last blow.’’
Not only did Janet Ellis not dispute Peterson’s description
of those words, but she never explained what her ‘‘last
blow’’ statement had meant. Instead, her husband, in effect,
attempted to explain what she had meant: ‘‘Well, everybody
else was paid on Thursday, but with Kendall working five
days, I paid him on Friday to give him an extra day to blow
off steam.’’ According to Daniel Ellis, because of two pur-
portedly threatening phone calls Jacobs had made to the
Ellises, ‘‘I didn’t want him to come in there and disrupt the
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
business.’’ However, that testimony created somewhat of a
quagmire for Daniel and Janet Ellis.
He described a telephone call that he had received from
Jacobs during which the latter purportedly had said, ‘‘‘Watch
your back, you are dead meat,’ and hung up.’’ Tending to
corroborate that description was Peterson’s testimony that
‘‘Early in the morning’’ she had been told by Daniel Ellis
‘‘that he had a threatening telephone call that night about
10:00’’ and that she had been instructed to write down the
date and time of the call in Respondent’s log of calls to its
800 number. However, other evidence tends to show that
Ellis had been attempting to create ‘‘another reason’’ for, in
this instance, penalizing Jacobs.
The problem with Ellis’ testimony about such a call is that
he placed it as having occurred ‘‘April the 8th.’’ Yet, April
8 was a Thursday. If Jacobs had truly made a threatening
call to Daniel Ellis at ‘‘about 10:00’’ that night, it would
have occurred after his wife had already told Peterson ‘‘they
were going to give Kendall his last blow.’’ In short, a sup-
posed call at 10 p.m. on April 8 could not have motivated
a remark made approximately 12 hours earlier that same day.
Although she never testified that it had been the basis for
the ‘‘give Kendall his last blow’’ statement, Janet Ellis did
testify that ‘‘about the 7th, 6th or 7th of April, [Jacobs]
called in’’ and ‘‘made a comment about me calling his attor-
ney and told me that I had better watch my back.’’ Indeed,
Peterson testified that on one day after Jacobs’ termination,
she did not recall the date, Janet Ellis had indicated that she
had been threatened over the telephone by Jacobs. There is
no doubt, under Respondent’s version of these events, that
the supposed call to Janet Ellis had occurred before the one
to her husband on ‘‘April the 8th.’’ For, in the course of tes-
tifying about the call made to him, Daniel Ellis testified that
‘‘prior to that’’ his wife had ‘‘received one, also.’’ Since
Janet Ellis described only a single threatening call from Ja-
cobs, that call would have had to be received, if at all, before
April 8. However, Janet Ellis’ testimony and her statements
to Peterson are not as dispositive as they might appear at
first glance.
The above-mentioned telephone log maintained at that
time by Peterson contains two ‘‘threatening call’’ entries, one
at 10:04 p.m. on April 7 and the other at 10 p.m. on April
8. In addition, Respondent’s statement from the telephone
company does show a call from Jacobs’ phone number at
10:11 p.m. on April 8. But, that occurred after Janet Ellis’
‘‘last blow’’ remark that same morning. And inasmuch as
Respondent’s telephone company statement showed an April
8 call from Jacobs, presumably it would also contain a like
record of Jacobs’ phone number for the supposed April 7
‘‘threatening call,’’ consistent with the entry in Respondent’s
telephone log, at approximately 10 p.m. on April 7. Yet,
though Respondent produced the complete telephone state-
ment for April 8, that statement covers only the final tele-
phone calls to Respondent’s 800 number on April 7. As to
that portion of the calls on April 7, none of them reflect Ja-
cobs’ telephone number, as was the fact for April 8.
In fact, Jacobs never denied having made a telephone call
to Daniel Ellis at approximately 10 p.m. on April 8. How-
ever, neither did Daniel Ellis deny that, as Melissa Jacobs
who overheard her husband’s side of that call testified, Ken-
dall Jacobs had said only, ‘‘I want to come in and pick up
my last paycheck and I want all this to be over.’’ Indeed,
at the time of that telephone call, Respondent admittedly had
been withholding Jacobs’ last paycheck. That Jacobs logi-
cally would have placed such a call to Daniel Ellis during
the evening of April 8 is shown by the testimony that, at ap-
proximately 9 o’clock that same evening Peterson had told
Jacobs that she had the check in her desk at work and, also,
informed him of the ‘‘last blow’’ statement of Janet Ellis,
cautioning that ‘‘it would be better if he didn’t go to get his
check . . . because I don’t know what they had in mind.’’
Peterson’s testimony provides a logical basis for the tele-
phone remarks that Melissa Jacobs testified had been made
by her husband.
Tending to further support concern by Jacobs as a result
of Peterson’s visit was an event that occurred the following
morning. It is not disputed that when she overheard Peterson
volunteer during a telephone conversation to bring the check
to her home, where Jacobs could pick it up, Janet Ellis inter-
jected, ‘‘Oh, no, you are not,’’ and insisted that Jacobs pick
it up at Respondent’s office. In the end, Jacobs did so and
there was no problem. However, he had brought two of the
Union’s officials with him when he went to pick up the
check.
IV. DISCUSSION
Although there might be some basis for questioning the
accuracy of some remarks attributed to Daniel Ellis, a pre-
ponderance of the credible evidence supports most of the un-
lawful statements attributed to him. Indeed, many of those
statements went undenied. Other words and actions were ad-
mitted by him. For example, Ellis acknowledged having used
tape on March 23 to cover the sticker that Kendall Jacobs
had affixed to his truck’s bumper. Respondent produced no
evidence that it had a rule prohibiting employees from dis-
playing insignia on vehicles and equipment. To be sure, Ellis
testified that he had covered the bumper sticker as a result
of a customer’s withdrawal of business after having seen it.
However, no weight can be accorded to that explanation.
As he testified, Daniel Ellis did not appear to be doing so
candidly. A review of the record serves to support that im-
pression of lack of candor. By way of illustration, as pointed
our in subsection III,C, supra, when the already produced
evidence raised some doubt of Respondent’s ability to main-
tain the ‘‘lack of new work to start’’ reason advanced in his
notice of the layoffs on March 9, Ellis reversed direction by
claiming that there had been ‘‘plenty of work’’ and he ad-
vanced an entirely different reason for those layoffs. Simi-
larly, despite the three reasons enumerated in the April 2 let-
ter terminating Jacobs, Ellis completely disavowed that one
of them had truly been a reason for doing so, equivocated
as to another one, and specified that, actually, insubordina-
tion had been the sole reason for firing Jacobs. In a like vein,
in his prehearing affidavit, Ellis connected Melissa Jacobs’
termination to the then-ongoing union activity, in general,
and to her husband’s then-newly disclosed support for rep-
resentation in particular. Then, as described in subsection
III,D, supra, he advanced a wholly different, and unsup-
ported, reason for that termination.
Aside from his testimonial inconsistencies with his own
previous statements, Daniel Ellis advanced many assertions
that went uncorroborated. For example, his wife, Respond-
ent’s office manager, never corroborated his claims that Me-
lissa Jacobs’ frequent trips to the front office had ‘‘just
1203ELLIS ELECTRIC
disrupt[ed] the whole flow of work up front.’’ And no evi-
dence was produced to support his testimony that Respond-
ent ‘‘didn’t have enough money in the payroll to keep people
on’’ after March 9. As to the taping of the bumper sticker
on Kendall Jacobs’ truck, Ellis never identified the supposed
complaining customer, no such individual was produced as
a corroborating witness for Respondent, and Respondent
never produced any documentary evidence, such as labor
sheets, that would show a discontinuance of a particular cus-
tomer’s business after March 23 on a specific project. In-
deed, given Ellis’ own conceded dissatisfaction with union
labor, it seems somewhat unrealistic that Ellis would have al-
lowed such a purported customer to simply walk away, with-
out at least trying to explain that he shared the supposed
views of that individual.
I do not credit Daniel Ellis. Specifically, as to the bumper
sticker incident, I conclude that his own opposition to union-
ization of Respondent’s employees had led him to affix tape
over it and to order Jacobs not to bring that vehicle on Re-
spondent’s promises or around its equipment so long as the
sticker remained on the bumper. Furthermore, it is undis-
puted that Janet Ellis later instructed Peterson that, since Ja-
cobs’ truck was not allowed on the Independence premises
with that bumper sticker on it, Peterson should call 911 if
Jacobs brought the truck on those premises. Employees have
a statutory right, subject to certain limitations not credibly
shown to have been present here, to display union insignia
on their persons and property at their workplaces. By prohib-
iting an employee from displaying prounion insignia on Re-
spondent’s premises, by covering such insignia with tape,
and by directing that 911 be called if that employee brought
a vehicle bearing prounion insignia on Respondent’s prem-
ises, Respondent interfered with the exercise of statutory
rights and violated Section 8(a)(1) of the Act.
As described in subsection III,B, supra, Daniel Ellis never
denied having told Jacobs that Respondent would not be able
to give the latter a raise for which he was due because of
the union activity that had surfaced. In some situations, em-
ployers can withhold pay and benefit increases to avoid the
appearance of improperly trying to influence employee
choice regarding selecting or not selecting a bargaining
agent. However, Ellis never voiced such a concern to Jacobs
when making that statement to him and, further, Respondent
has not advanced it as a reason for that statement to Jacobs.
Moreover, considering that Ellis had not been reluctant to
award an increase, and to promise another one, to Arbic ap-
proximately 1 month later, with the scheduled representation
election less than 3 weeks away, any defense that the merited
increase for Jacobs had been withheld because of concern
about an appearance of impropriety would not withstand
scrutiny. Therefore, I conclude that Respondent violated Sec-
tion 8(a)(1) of the Act by telling an employee that he could
not receive a wage increase that was due him because of
union activity that was in progress. Furthermore, since the
wage increase was admittedly due Jacobs, and inasmuch as
it was withheld for no reason other than ongoing union activ-
ity, I shall order as part of the remedy that backpay for Ja-
cobs include the amount of that withheld increase.
As pointed out above, Arbic was granted a wage increase
and was promised another one in 30 days. Ellis informed
Arbic of those facts after asserting that ‘‘he needed [Arbic]
on the 16th,’’ when the representation election was then
scheduled, inquiring ‘‘what would make [Arbic] happy,’’ and
hearing Arbic’s request for a one dollar increase. A connec-
tion between those statements and the announced increase
and promise of another one may not have been explicitly
stated, as Arbic testified. Still, such a connection plainly fol-
lows from the sequence of subjects in that conversation.
Therefore, I conclude that Respondent violated Section
8(a)(1) of the Act by conferring and promising wage in-
creases to discourage employee support for the Union in a
Board-conducted representation election.
Daniel Ellis denied generally that he had threatened to
close the business if the employees became unionized. How-
ever, he contradicted that denial by admitting in his prehear-
ing affidavit that he had told Peterson ‘‘that I would close
the employer’s doors if [the employees] joined the [U]nion.’’
His attempt, when testifying during the hearing, to relate that
closure statement to Respondent’s asserted financial difficul-
ties simply does not square with his admitted mention of em-
ployees joining the Union in conjunction with that closure
warning. In the final analysis, that explanation serves only to
further show the unreliability of Ellis as a witness.
In fact, he never denied specifically having told
Kurtenbach on February 22 that he would not be made a
union contractor again and that Kurtenbach should ask union
guys about unemployment lines, having said on March 8 that
a reason other than union activity had to be found to fire
Kurtenbach, and having said to office employees on that date
and to Lewis on March 20 that, in effect, he was ‘‘closing
the doors’’ if the Union ‘‘comes in.’’ Threats of closure if
employees become represented by a union are regarded as
being among the most severe violations of the Act. There-
fore, I conclude that Respondent violated Section 8(a)(1) of
the Act when Daniel Ellis made such threats.
Essentially two categories of interrogation are alleged. The
first pertains to interrogation of job applicants, specifically
Hicks and Mariani. Daniel Ellis denied having asked those
applicants, or any applicants, about union membership, sym-
pathies and activities. Yet, as concluded above, his testimony
was not reliable. True, other employees testified that they
had not been subjected to such interrogatories when inter-
viewed. But, as pointed out in subsection III,B, supra, if so,
that shows no more than that Ellis did not choose to violate
the Act during every interview. In fact, Janet Ellis admitted
to Peterson that her husband had interrogated Moore regard-
ing the latter’s union sympathies during a rehire interview.
Respondent points to the fact that Ellis would have had no
occasion to question Hicks in October 1992 and Mariani dur-
ing the following January, because the Union had not then
been organizing Respondent’s employees and Ellis did not
learn about Althaus’ contacts with Respondent’s employees
until the latter half of February, after Hicks and Mariani al-
ready had been interviewed and hired. However, such an ar-
gument loses some persuasion in the face of Ellis’ admission
that he had raised the subject of union during his interview
of Kurtenbach occurring during the same month as the one
with Mariani. Of course, Ellis did not question Kurtenbach
on that occasion. Nevertheless, his injection of ‘‘union’’ into
that interview shows that he was not oblivious to the subject
before Althaus visited Respondent’s employees in February.
It must be remembered that, as described in subsection
III,B, supra, Daniel Ellis had not been uninformed about
unions before the Union commenced its campaign to orga-
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nize Respondent’s employees. As he told Althaus during the
spring of 1992, he had been a union contractor in the past.
Obviously the very occurrence of that conversation alerted
Ellis that the Union might eventually become interested in
attempting to organize Respondent’s employees. And it had
been not too many months later that Jacobs had been inter-
viewed and, according to Jacobs, had been questioned about
his union membership and sympathies. Ellis’ assertion that
he would not question an applicant about such matters, be-
cause ‘‘It is against the Law,’’ was undermined by his wife’s
uncontroverted admission to Peterson that her husband had
done exactly that when interviewing Moore for rehire.
To be sure, on his employment application Hicks fla-
grantly overstated his prior work which, if nothing else, dis-
plays a disposition to take liberty with facts to secure em-
ployment with Respondent. That, of course, is what a rein-
statement order would confer on Hicks. Yet, Mariani im-
pressed me as an honest individual, albeit one whose mem-
ory was not certain and precise. Thus, while he conceded
that the interview could not have progressed as he remem-
bered and initially described it, he nevertheless continued to
assert adamantly that he had been asked about his union
membership and involvement while being interviewed by
Ellis. Mariani’s seemingly candid testimony in that regard
and that of Jacobs to the same effect tend to support Hicks’
description of the questions directed at him during his inter-
view by Ellis. Therefore, I conclude that the credible evi-
dence supports the allegation that Respondent, through Ellis,
interrogated job applicants about their union membership, ac-
tivities and sympathies, and, accordingly, that Respondent
violated Section 8(a)(1) of the Act.
The second category of allegedly unlawful interrogations
centers on questioning of Respondent’s already employed
personnel. Ellis admitted that, after learning from the Vinton
Library librarian that Althaus had spoken to Respondent’s
electricians at that site, he had spoken to all of them about
the Union. He also admitted having asked if Kurtenbach, and
presumably others as well, was a union member and planned
to become one. Further, Ellis admitted having asked Melissa
Jacobs on March 9 how her husband would vote concerning
the Union, during a conversation that he told her ‘‘never
took place.’’
Daniel Ellis is Respondent’s owner. None of those ques-
tioned employees had displayed any union involvement be-
fore they had been questioned. Accordingly, they cannot be
characterized as having been openly active on the Union’s
behalf at the time Ellis chose to question them. Obviously,
Kurtenbach was a salt at the time that he had been interro-
gated on February 23. But, that had not been revealed to Re-
spondent when Ellis questioned him. Ellis advanced no le-
gitimate purpose for his questioning. Nor, so far as the
record discloses, did he assure any one of those questioned
employees that there would be no reprisals taken against
them because of their answers. Most importantly, that ques-
tioning was conducted in an overall context of Ellis’ repeated
statements of opposition to unionization of Respondent’s em-
ployees and, moreover, of threats to close the business
should that occur. Therefore, I conclude that a preponderance
of the evidence shows that his interrogation of employees
had been coercive and, as a result, that Respondent violated
Section 8(a)(1) of the Act.
Turning to the alleged violations of Section 8(a)(3) of the
Act, the credible evidence establishes a prima facie case of
unlawful motivation for the March 9 layoffs and for the sub-
sequent terminations of Melissa and Kendall Jacobs. In each
instance, those actions had been effected abruptly and in the
immediate wake of disclosures about union activity: the lay-
offs after notice that Kurtenbach was a salt, Melissa Jacobs’
termination immediately after the prounion bumper sticker on
her husband’s truck had been noticed and taped over by
Ellis, and Kendall Jacobs’ termination after that event and
after displaying the ‘‘days and counting’’ signs at the V.A.
site. It is settled that ‘‘abruptness of a discharge and its tim-
ing are persuasive evidence as to motivation.’’ NLRB v.
Montgomery Ward & Co., 242 F.2d 497, 502 (2d Cir. 1957),
cert. denied 355 U.S. 829. Accord: NLRB v. Sutherland Lum-
ber Co., 452 F.2d 67, 69 (7th Cir. 1971); NLRB v. Elias
Bros., 325 F.2d 360, 366 (6th Cir. 1963); United Dairy
Farmers Coop. Assn. v. NLRB, 633 F.2d 1054, 1062 (3d Cir.
1980).
Specifically with regard to the March 9 layoffs, there is
no direct evidence that Respondent had been aware that
Mariani, Hicks and Fisher had signed authorization cards, or
were otherwise favorably disposed toward the Union’s orga-
nizing campaign, at the time that they were laid off. How-
ever, the only four employees laid off on that date had
signed authorization cards. In contrast, as of March 9 only
one of the four retained employees had signed an authoriza-
tion card. Further, aside from Jacobs, the four employees laid
off had been the ones that Althaus had visited at the V.A.
and Vinton Public Library sites during mid-February. As he
conceded during the hearing, and to Kurtenbach on February
22, Daniel Ellis had become aware of those mid-February
visits to both sites and, obviously, Ellis knew the identities
of the employees working at them. Even if Ellis had not pos-
sessed actual knowledge that Mariani, Hicks and Fisher were
supporting the Union, a layoff decision motivated by sus-
picion or belief about such support is no less unlawful than
one motivated by actual knowledge. For, ‘‘the Act is violated
if an employer acts against the employees in the belief that
they have engaged in protected activities, whether or not they
actually did so.’’ (Citations omitted.) Henning & Cheadle,
Inc. v. NLRB, 522 F.2d 1050, 1052 (7th Cir. 1975). See also
NLRB v. Ritchie Mfg. Co., 354 F.2d 90, 98 (8th Cir. 1965).
A third, perhaps even more accurate, description of Re-
spondent’s motivation for the layoffs of Mariani, Hicks and
Fisher is suggested by the undenied remarks of Daniel Ellis
on March 8. As quoted in subsection III,C, supra, in the let-
ter from Althaus received on that date by Respondent,
Althaus had cautioned that ‘‘salting is a protected activity
under the National Labor Relations Act, and [Kurtenbach]
should be [e]ntitled to that protection.’’ Thus, when his wife
suggested discharge for a reason connected with that activity,
Daniel Ellis replied, ‘‘We have to think of another reason.’’
That was the effect of the following day’s layoffs when
Kurtenbach was included among a group of four employees
abruptly laid off. In other words, the evidence supports a
conclusion that the other three employees were laid off as an
integral part of a scheme devised to create ‘‘another reason’’
for laying off Kurtenbach. See Armcor Industries, 217 NLRB
358 (1975).
Ultimately, Respondent’s defense of lawful motivation for
the March 9 layoffs seemed to implode as the hearing pro-
1205ELLIS ELECTRIC
gressed. In the layoff notice and for most of the hearing Re-
spondent advanced a lack of work defense for those layoffs.
Yet, as reviewed in subsection III,C, supra, its supporting
evidence turned out to be less supportive than Daniel Ellis
might have hoped. For example, despite substantial comple-
tion of the Vinton Public Library project, imminent substan-
tial completion of the Jesup Public Library project, and the
March 1 notice that Respondent had not succeeded on its
Feather Light bid, his March 4 tape-recorded statements re-
veal that he remained optimistic—indeed, excitedly so: ‘‘All
hell is breaking loose right now—I love it.’’—about pros-
pects for continued work to keep Respondent’s employees
fully occupied ‘‘if you guys do it.’’ Respondent produced no
evidence that any event occurred between that conversation
and March 9 that would have left Ellis less confident about
work prospects on and after the latter date.
Obviously, adverse weather led to postponement of the
Solon Secondary Schools and Grundy Center Maintenance
Garage projects. But Respondent produced no evidence that
by March 9 it had foreseen that week after week of inclem-
ent spring and summer weather would be occurring and, as
a result, would delay commencement of both those projects
for so prolonged a period. To the contrary, Lewis was per-
mitted to start work on March 8 in the expectation that work
would soon begin at Solon Schools. Further, after March 9
Respondent rotated its employees among jobs and the Ellises
worked relatively steadily on the other jobs to keep abreast
of work that needed to be done and for which contractors’
representatives were calling for electricians. In sum, the sup-
porting evidence fell short of supporting Respondent’s asser-
tions of lack of work on March 9.
In the end, of course, Daniel Ellis simply abandoned that
defense completely, admitting that ‘‘We had plenty of work’’
on March 9. However, while he substituted a completely dif-
ferent defense—lack of ‘‘enough money in the payroll to
keep people on,’’ as the motive for the layoffs—Respondent
produced no documentary evidence to show as much. Fur-
ther, Ellis never explained why, had that been his actual mo-
tive for the March 9 layoffs, he had chosen to advance a
completely different reason in the notice of them distributed
to Respondent’s employees.
Respondent’s fortunes fare no better respecting the motive
it advanced for firing Melissa Jacobs. As noted in subsection
III,B, supra, it is difficult to escape the conclusion that she
had been hired to attract the loyalty of her husband, in light
of the merited increase that he had been denied because
‘‘this union activity came about.’’ During a conversation
with her husband minutes before she had been told that she
was discharged, her husband had been reminded specifically
that Daniel Ellis ‘‘help[ed] you out in your troubled times,
giving your wife a job.’’ Moreover, as was true of the lay-
offs earlier that month, Melissa Jacobs had been terminated
abruptly and at a time when, Ellis acknowledged, work re-
mained available for her to perform.
True, Peterson supported the contention of Daniel Ellis
that Melissa Jacobs came frequently to the front office,
whenever the phone rang or someone entered there. But nei-
ther his wife, Respondent’s office manager, nor any other
evidence supported Ellis’ further assertion that those frequent
trips to the front office had ‘‘disrupted the work flow’’ there.
Furthermore his own testimony contradicted any assertion
that her frequent visits there had impaired her own work per-
formance. For he admitted that he had regarded her to be a
responsible employee who had finished ‘‘[m]ost of the in-
ventory’’ assignment that she had been given. In fact, at no
point, he admitted, had Ellis seen fit to speak with her about
her frequent front office trips from the back of Respondent’s
facility.
When his wife’s discharge apparently failed to deter Ken-
dall Jacobs from actively supporting the Union, and instead
he began displaying signs that enumerated the number of
days to the representation election and advocated support for
the Union, Respondent terminated him, as well. It is difficult
to escape the conclusion that, in its April 2 termination letter,
Respondent simply hurled whatever charges against him that
happened to come to mind. By the time of the hearing in this
proceeding, those termination reasons already, in effect, had
been subjected to a dry run during the state hearing. In his
decision arising from that hearing, Administrative Law Judge
Bruce Graham concluded that Respondent had produced no
evidence of responsibility by Jacobs for destruction of Re-
spondent’s property and of improper attitude. Indeed, al-
though at one point during this proceeding Daniel Ellis re-
ferred to ‘‘an ongoing thing . . . the attitude deterioration
and the gangbox. . . . And I think that, in light of the past
performance . . . [the extra hours work on March 29 through
April 1] was the straw that broke the camel’s back basi-
cally,’’ as reproduced in subsection III,D, supra, when his at-
tention was focused on his motive for firing Jacobs, Ellis re-
plied only, ‘‘Can’t keep a guy working for you that won’t
follow instructions.’’
That was not an unreasonable course for Ellis to follow in
the circumstances. By the time that he testified in this pro-
ceeding, Ellis had the benefit of Judge Graham’s reasoning—
specifically, that the evidence to support the purportedly
damaged gang box and the supposedly deteriorating attitude
had not been convincing. Thus, reminiscent of his tack in
connection with the March 9 layoffs, Ellis sidestepped excess
reasons advanced in his April 2 termination letter. He relied
exclusively on the by then admitted extra work at V.A. on
those 4 March and April days. Yet, in doing so, Ellis tacitly
conceded that there had been no basis for one of the reasons,
gang box destruction responsibility, advanced for firing Ja-
cobs. Respondent provided no explanation for why such an
unsupported reason would have been included as a termi-
nation reason. Moreover, while Respondent did make some
effort to support the asserted deteriorating attitude reason,
that testimony was either at odds with objective consider-
ations—for example, assertions of poor attitude at times
when Daniel Ellis testified that he had regarded Jacobs to be
displaying a good attitude—or unsupported by specific evi-
dence, as with respect to Janet Ellis’ testimony about Jacobs
being rude to her prior to his termination.
Notwithstanding Jacobs’ concession that he had violated
Respondent’s prohibition against working extra hours on
March 29 through April 2, Respondent’s defense based on
that reason is not all that persuasive. Rather, it appears that
Respondent simply took advantage of what Jacobs had done
to effect a termination that there is no credible evidence
would otherwise have occurred, but for Jacobs’ undeterred
union support. At no point did Respondent challenge Jacobs’
reasons for having worked extra hours on those days: the
contractor’s hastily convened meeting and the need to help
Lewis perform work that ‘‘takes two people[.]’’ So far as the
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
record discloses, at no point on April 1 or 2 did Daniel Ellis
attempt to ascertain from Jacobs why he had remained at
work on those 4 days for more than 8 hours. Such a failure
to question an employee and to obtain his explanation for his
conduct is some evidence of unlawful motivation. See, e.g.,
NLRB v. Lone Star Textiles, 386 F.2d 535 (5th Cir. 1967);
Auto Workers v. NLRB, 455 F.2d 1357, 1367 (D.C. Cir.
1971).
Beyond the undisputed validity of the reasons for having
worked late advanced by Jacobs, nothing refutes his testi-
mony that he had not intended to work more than 40 hours
during the week of March 29 through April 2. He had
cleared with the general contractor’s representative working
only part of Friday, April 2. That clearance is significant.
For, Respondent’s employees had begun working Monday
through Friday at the V.A. because the general contractor
had wanted electricians on the project for 5 days a week. By
securing the general contractor’s approval to leave early on
Friday, Jacobs had removed any possible basis for criticism
of Respondent for not having someone there through the end
of the workday on Friday, April 2. And by leaving early that
day, Jacobs would have avoided working more than 40 hours
during that workweek. Of course, that all went unexplained
to Respondent, since Jacobs had been unable to get hold of
Daniel Ellis when he had attempted to contact him on each
of the earlier weekdays and, more importantly, since Ellis did
not see fit to speak with Jacobs about the latter’s timecard’s
disclosure of extra hours worked on March 29 through April
1.
In another setting, an employee’s unexplained failure to
follow instructions might well be a lawful termination rea-
son. Here, however, Daniel Ellis was not a credible witness;
I do not credit any assertion by him that, standing alone and
had Jacobs not been a union supporter, Respondent would
have so promptly fired Jacobs on discovering the extra hours
worked on 4 days, without asking Jacobs why he had done
so. Ellis had been actively and firmly opposed to unioniza-
tion of Respondent’s employees. Many times he made hostile
statements to employees to deter their support for the Union.
He unlawfully laid off four employees and unlawfully termi-
nated Melissa Jacobs in response to earlier disclosures of
union activity and of continued union activity by Respond-
ent’s employees. He had been specifically upset by the
bumper sticker displayed by Kendall Jacobs, as shown by his
remarks to Jacobs during the early evening of March 23.
Respondent never did dispute Jacobs’ testimony that he
had tried unsuccessfully to contact Ellis through the office
earlier that week, to explain the need to work more than 8
hours at the V.A. on those days. While he came to the site
midweek, Daniel Ellis made no effort to speak with Jacobs
about the extra hours revealed by the latter’s timecard. In-
stead, similar to his wife’s suggested pretext for firing
Kurtenbach for lying, Daniel Ellis simply seized on those
extra hours and promptly fired Kendall Jacobs. But, appar-
ently uncertain as to how that reason might stand up if sub-
jected to closer examination, Ellis tried to fortify Respond-
ent’s defense by adding other reasons that, in the end, it
could not support. In fact, apparently so desperate for valid
discharge reasons had been Ellis, he added as an example of
insubordination a ‘‘direction’’ to stop at Respondent’s facil-
ity that even Ellis conceded had been an arrangement, not a
direction, that would have benefited only Jacobs.
Therefore, I conclude that a preponderance of the credible
evidence supports the conclusions that Respondent’s motiva-
tions for laying off four employees on March 9 and for ter-
minating Melissa and Kendall Jacobs had been unlawful and
that those actions violated Section 8(a)(3) and (1) of the Act.
That leaves for consideration two aspects pertaining to the
remedial order arising from Respondent’s unlawfully moti-
vated March 9 layoffs. During the following spring Respond-
ent offered to rehire Fisher and Mariani. However, an offer
of reemployment is not the equivalent of an offer of rein-
statement, which the Act requires whenever there is an un-
lawfully motivated layoff or termination. See Shelly & An-
derson Furniture Mfg. Co. v. NLRB, 497 F.2d 1200, 1204
(9th Cir. 1974); Colorflo Decorator Products, 228 NLRB
408, 420 (1977). Consequently, the fact that Respondent of-
fered to reemploy two of those discriminatees does not re-
lieve Respondent of its obligation to offer them reinstate-
ment.
Second, Respondent argues that Kurtenbach and Hicks en-
gaged in misconduct that should bar an order to reinstate
them. As to Kurtenbach, that argument is based on his pur-
ported desire to be discharged by Respondent and, further,
his ‘‘Lie[s] to Dan Ellis on several occasions.’’ But, Re-
spondent’s first argument concerns a conversation in which
Kurtenbach had said no more than that if Respondent in-
tended to retaliate against anyone because of the organizing
campaign, as the salt he wanted to be the employee who at-
tracted Respondent’s ire. At no point did his remarks con-
stitute a declaration of open-ended desire or intention to be
terminated for any reason whatsoever. Indeed, had
Kurtenbach been seeking termination for any reason whatso-
ever, so that he could later obtain backpay for a period when
he had not worked, it is unlikely that he would have kept
secret from Respondent until March his role as salt and,
moreover, it is unlikely that he would have performed his
work to Respondent’s satisfaction. Yet, both before his layoff
and during the hearing. Janet and Daniel Ellis expressed sat-
isfaction with Kurtenbach’s job performance.
Respondent’s contention that it had been lied to by
Kurtenbach seems rooted in his denials, when questioned by
Daniel Ellis, of union support. However, as concluded above,
that questioning had been unlawful. Further, as the United
States Court of Appeals for the Seventh Circuit recently
pointed out, employees’ untruthful answers to such question-
ing ‘‘permit[ ] the reasonable inference that [they] feared re-
prisal.’’ (Citation omitted.) NLRB v. Shelby Memorial Hos-
pital Assn., 1 F.3d 550, 559 (1993).
Concerning Hicks, it is clear that he overstated the dura-
tion of past employment by employers named in his applica-
tion. The difference between facts recited in that application
and the reality contradicting them is too great to be charac-
terized simply as error. However, the focus of inquiry here
is Respondent’s motivation. Hogan Mfg., supra, 309 NLRB
at 953, and cases cited therein.
Respondent had known of at least one such overstate-
ment—for Delta Diversified Enterprises—for almost a month
before Hicks had been laid off. Yet, it took no adverse action
prior to March 9 against Hicks based on that knowledge.
Moreover, Respondent has adduced no evidence whatsoever
of a policy or practice of terminating employees who over-
state their past experience, at least so long as those employ-
ees satisfactorily perform their jobs for it. Indeed, Hicks was
1207ELLIS ELECTRIC
6 Mariani testified that he also had worked at the Vinton Library.
However, his name does not appear on the labor sheets for that
project.
not fired on March 9 and nothing was said to him on that
date about his application’s recitation of past experience. In-
stead, he was laid off on that date and the reason advanced
had nothing whatsoever to do with facts set forth on his ap-
plication. Therefore, the evidence does not show that Hicks
would have been either laid off or not considered for rein-
statement by Respondent, absent the organizing campaign,
because of misrepresentations about past employment on his
employment application.
That leaves for consideration the bargaining order allega-
tions. The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the Act as of March 18. However, that al-
legation is, in turn, based on an alleged demand for recogni-
tion and bargaining on that same date. There is no evidence
that such a demand had been made. There is evidence that
the Union did make such demands 3 months later. However,
there is insufficient evidence concerning composition of the
bargaining unit during June. As a result, there is no basis for
concluding that the Union enjoyed majority status when rec-
ognition demands actually had been made and, therefore, no
basis for concluding that Respondent violated Section 8(a)(5)
of the Act. Yet, that does not end the inquiry pertaining to
issuance of a bargaining order. For, where an employer’s un-
fair labor practices have been severe, pervasive and lingering
in effect on employees, a bargaining order can issue as a
remedy for them.
There can be no question of the severity, pervasiveness,
and lingering effect of Respondent’s unfair labor practices.
Most of the unit employees had admittedly been interrogated
during February as a result of the visits by Althaus to
projects where those employees had been working. One em-
ployee was unlawfully told that he could not be awarded a
wage increase, that he had merited, because union activity
was then in progress. However, another employee was later
awarded an increase, and promised yet another one, to en-
courage him to support Respondent’s antiunion position. Re-
spondent prohibited an employee from displaying union in-
signia on its premises, covered insignia affixed to that em-
ployee’s truck bumper, and directed that 911 be called if that
employee brought that truck on its premises. Most signifi-
cantly, not only did Respondent threaten closure of its busi-
ness if its employees became represented, but it unlawfully
laid off four unit employees on March 9 and unlawfully ter-
minated a fifth unit employee on April 2. In the interim it
unlawfully terminated an office employee who is the spouse
of the unit employee whom it terminated on April 2.
The layoffs, terminations, and threats of wage increase de-
nial and closure are each serious unfair labor practices. Many
affected directly most of the bargaining unit employees and
their occurrence could not have escaped notice by the re-
maining unit employees. Accordingly, they were pervasive.
Not only are their effects inherently likely to linger, but Dan-
iel Ellis remains Respondent’s owner. There is no indication
that he would be reluctant to again resort to unfair labor
practices should another representation election be scheduled.
Therefore, a preponderance of the evidence establishes that
a bargaining order remedy is appropriate in the cir-
cumstances of this case, if the Union represented a majority
of the employees in an appropriate bargaining unit.
As pointed out in subsection III,D, supra, Respondent
agrees to the appropriateness of a unit of all employees per-
forming electrical work for it, but excluding office clerical
employees, professional employees, guards and supervisors
as defined in the Act. However, the General Counsel ac-
knowledges that Respondent is an employer engaged in the
building and construction industry, as to which the Board
pointed out in Steiny & Co., 308 NLRB 1323, 1326 (1992),
in addition to those eligible to vote under the standard
criteria, unit employees are eligible if they have been
employed for 30 days or more within the 12 months
preceding the eligibility date for the election, or if they
have had some employment in those 12 months and
have been employed for 45 days or more within the 24-
month period immediately preceding the eligibility date.
In footnote 13 of that decision, the Board modified the for-
mula being restored in Steiny so that the term ‘‘days’’ in the
eligibility formula would mean ‘‘working’’ days.
As discussed in subsection III,A, supra, the General Coun-
sel argues that a bargaining order remedy should be made ef-
fective as of March 6 when, contends the General Counsel,
the Union had achieved majority support. By that date the
Union had received signed authorization cards from Jacobs,
Fisher, Hicks, Kurtenbach, and Mariani. However, under the
‘‘working’’ days interpretation of the added building and
construction industry eligibility criteria, the latter two em-
ployees were not eligible as of March 6. Kurtenbach testified
that he had worked only at the Jesup Library, Manchester Li-
brary, Vinton Library and V.A. projects. A review of the
labor sheets for those projects discloses that he had worked
at Jesup on February 3 and 4, at Manchester on February 5,
at Vinton on February 10, 11, 15, 19, and 22, and at V.A.
on February 12, 16, 17, 18, 23, and 25, and on March 1–
4—a total of 18 working days by March 6. Similarly, by
March 6 Mariani had worked a total of but 15 working days:
at Jesup Library on February 9, at the V.A. Medical Center
on February 10, 11, 15–17, 19, 22 and 23, at Manchester Li-
brary on February 24 and 25, and at Cresco Hospital on
March 1–4.6
In contrast, Fox, Jacobs, Fisher, and Hicks had all worked
for Respondent since 1992. Each one had worked for more
than 30 working days between the time that he had begun
employment with Respondent and March 6. By February 26
three of those employees had signed authorization cards and,
accordingly, the Union enjoyed the support of a majority of
those eligible employees. However, a determination of the
unit complement must also take into account the eligibility
of certain other employees whose names are enumerated on
lists submitted by Respondent in connection with the rep-
resentation proceeding: Angela Ellis, Victor Hyman(n),
Dwight M. Mays, Faron Good, Richard Van Fossen, Sue
Heintz, Virgil D. Lewis Sr., and Jerald Moore. As it turns
out, none of them can be regarded as an eligible member of
the bargaining unit during March.
Angela Ellis is the daughter of Respondent’s owner, Dan-
iel Ellis, and had ceased working for Respondent as of Feb-
ruary 25. Hyman or Hymann had been a student who had
worked during school breaks for 9 days between December
28, 1992, and January 15, 1993, and for 4 more days from
March 8 through 11, after which there is neither contention
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 While Respondent contends that she had been hired to perform
a specific job, which by now must have been completed, the remarks
to her described at the end of subsection III,B, supra, by Daniel Ellis
indicate that he may have contemplated additional work for her to
perform. A firm conclusion about that subject cannot be reached on
the basis of this record. Consequently, a final determination must be
deferred to the compliance phase of this proceeding.
nor record that he again worked for Respondent. No employ-
ment is shown for Dwight M. Mays on any of the labor
sheets presented by Respondent; indeed, Respondent makes
no contention that Mays had been employed at any time after
1992. According to the calendar log, Faron Good worked
only one day for Respondent, at ICBP on April 16. Richard
Van Fossen worked for Respondent only 23 days, from June
25 through July 25, 1992. Sue Heintz’ last day of employ-
ment shown by the labor sheets had been December 9, 1992,
at Cresco Hospital. I conclude that none of these six individ-
uals is eligible for inclusion in calculating the Union’s ma-
jority.
Like Mariani, Arbic had been hired by Respondent during
February. A review of the labor sheets produced during the
hearing reveals that he did not work 30 days for it until
April. Lewis first began working for Respondent on March
8 and, accordingly, would not have satisfied the 30-working
days criteria until April.
Jerald Moore presents a somewhat more involved situation
regarding eligibility. He had worked for Respondent during
1992, being laid off on October 30 of that year. However,
he did not again begin working for Respondent until March
23. That presents the question of his expectancy of recall
during the interim almost 6 months. Respondent does not
contend that Moore’s 1992 layoff had been regarded as tem-
porary. To the contrary, there is evidence that Daniel Ellis
had considered Moore as too slow to be considered for re-
hire. That Moore had been laid off for that reason tends to
be supported by the circumstances under which he had been
laid off. Moore testified that the layoff had occurred because
the Vinton Library project ‘‘was just finishing up.’’ Yet, in
fact, Respondent had continued working there, with a fair de-
gree of regularity, for almost 4 more months. Consequently,
Moore’s layoff had to be motivated by some factor other
than completion of that project. Moreover, during March,
Janet Ellis had told Peterson that Daniel Ellis had not rehired
Moore until after the latter had been questioned about his
union sympathies. Accordingly, regardless of the number of
hours that Moore had worked during 1992, there is no basis
for concluding that during February and before March 23 he
had been a laid off employee with an expectancy of recall.
The General Counsel has selected March 6 as the effective
date of a bargaining order based on a calculation of majority
that includes two employees—Kurtenbach and Mariani—
who, under Steiny & Co., should not have been included in
the unit calculation on that date. Under that case’s eligibility
standards, only Fox, Jacobs, Fisher, and Hicks are included
in that calculation. By February 26 three of them had signed
cards authorizing the Union to serve as their bargaining
agent.
There is no less reason to select February 26 as the effec-
tive date of a retroactive bargaining order than March 6. By
that earlier date through interrogations and threats, Respond-
ent had committed unfair labor practices that affected at least
three eligible unit employees, Jacobs, Fisher, and Hicks, and
two other electricians, Kurtenbach and Mariani who had not
yet worked 30 days for Respondent, but who otherwise
would be regarded as unit employees. Soon after February 26
Respondent told Jacobs of the merited wage increase that he
would not be receiving because of the Union. A week or so
later, upon receiving notice that Kurtenbach was a salt, Re-
spondent made renewed threats of closure and, on March 9,
unlawfully laid off half the eligible unit employees, along
with Kurtenbach and Mariani. Had those two latter employ-
ees been allowed to continue working, and the evidence dis-
closes no facts showing that they would not have continued
working but for the union activity that surfaced, they also
would have eventually become eligible, as would Arbic who
signed a card on March 18. Accordingly, the Union’s major-
ity support would have eventually increased. Therefore, I
conclude that a remedial bargaining order should issue effec-
tive February 26.
CONCLUSIONS OF LAW
Daniel J. Ellis, d/b/a Ellis Electric has committed unfair
labor practices affecting commerce by laying off Ritchie V.
Kurtenbach, Jon Mariani, Jeffery Hicks, and Jeffrey Fisher
on March 9, 1993, and by discharging Melissa Jacobs on
March 23, 1993, and Kendall William Jacobs on April 2,
1993, in violation of Section 8(a)(3) and (1) of the Act; and,
by interrogating job applicants and already employed em-
ployees about their own and other employees’ union activity
and sympathies, threatening closure and denial of wage in-
creases to discourage employees from selecting a bargaining
agent, granting and promising wage increases to encourage
opposition to selection of a bargaining agent, covering
prounion insignia displayed on an employee’s vehicle, pro-
hibiting the display of prounion insignia on its premises, and
directing that emergency services be called if an employee
brought his vehicles onto company premises with that insig-
nia, in violation of Section 8(a)(1) of the Act. Although it
has not violated Section 8(a)(5) of the Act, the lingering ef-
fects of those serious and pervasive unfair labor practices
preclude the likelihood of conducting a representation elec-
tion free of their taint in the circumstances of this case and,
therefore, it will be ordered to recognize and bargain with
International Brotherhood of Electrical Workers, Local 288,
as the bargaining agent of employees in an appropriate bar-
gaining unit of all employees performing electrical work for
it; but excluding office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act, effec-
tive as of February 26, 1993.
REMEDY
Having concluded that Daniel J. Ellis, d/b/a Ellis Electric
has engaged in certain unfair labor practices, I shall rec-
ommend that it be ordered to cease and desist therefrom and,
further, that it be ordered to take certain affirmative action
to effectuate the policies of the Act. With respect to the lat-
ter, it shall be ordered to offer to Ritchie V. Kurtenbach, Jon
Mariani, Jeffery Hicks, Jeffrey Fisher, Melissa Jacobs,7 and
Kendall William Jacobs immediate and full reinstatement to
the positions that they occupied before being laid off or dis-
charged, respectively, dismissing, if necessary, anyone who
may have been hired or assigned to perform the work that
those employees had been performing. If one or more of
1209ELLIS ELECTRIC
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 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.’’
those positions no longer exists, it shall be ordered to rein-
state that employee or those employees to a substantially
equivalent position, without prejudice to seniority or other
rights and privileges. It also shall be ordered to make whole
each of them for any loss of pay suffered because of those
unlawfully motivated layoffs and discharges, with backpay
for Kendall William Jacobs to include the wage increase for
which he had been eligible but had not received, and with
all backpay amounts to be computed on a quarterly basis,
making deductions for interim earnings, F. W. Woolworth
Co., 90 NLRB 289 (1950), and with interest to be paid on
amounts owing as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record in this proceeding, I issue the following rec-
ommended8
ORDER
The Respondent, Daniel J. Ellis, d/b/a Ellis Electric, Inde-
pendence, Iowa, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Laying off, discharging, or otherwise discriminating
against Ritchie V. Kurtenbach, Jon Mariani, Jeffery Hicks,
Jeffrey Fisher, Melissa Jacobs, and Kendall William Jacobs,
or any other employee, because of activity on behalf of or
support for International Brotherhood of Electrical Workers,
Local 288, or any other labor organization.
(b) Interrogating job applicants and already employed em-
ployees about their own and other employees’ union activity
and sympathies, threatening closure and denial of wage in-
creases to discourage employees from union activity, grant-
ing and promising to grant wage increases to encourage op-
position to union activity, prohibiting display of prounion in-
signia and covering insignia that are displayed, and directing
that 911 be called if employees display insignia on company
premises.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and bargain collectively, effective as of Feb-
ruary 26, 1993, with International Brotherhood of Electrical
Workers, Local 288, as the collective-bargaining agent of
employees in the following appropriate bargaining unit and,
if an agreement is reached, sign a written contract embody-
ing the terms of that agreement. The bargaining unit is:
All employees performing electrical work for Daniel J.
Ellis, d/b/a Ellis Electric; but excluding office clerical
employees, professional employees, guards and super-
visors as defined in the Act.
(b) Offer Ritchie V. Kurtenbach, Jon Mariani, Jeffery
Hicks, Jeffrey Fisher, Melissa Jacobs, and Kendall William
Jacobs immediate and full reinstatement to the positions from
which each was either laid off or discharged, dismissing, if
necessary, anyone who may have been hired or assigned to
any of those positions or, if any of those positions no longer
exists, to a substantially equivalent position, without preju-
dice to seniority or other rights and privileges, and make
whole those employees for any loss of pay suffered as a re-
sult of those discriminatory acts, in the manner set forth
above in the remedy section of this decision.
(c) Preserve and make available to the Board or its agents,
for examination and copying, all payroll and other records
necessary to compute backpay and reinstatement rights as set
forth above in the remedy section of the decision.
(d) Post at its Independence, Iowa office copies of the at-
tached notice marked ‘‘Appendix.’’9 Copies of the notice, on
forms provided by the Regional Director for Region 18, 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
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges violations of the Act not
found herein.