Frye Electric, Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 19, 2007

25-CA-030270 (N.L.R.B. Oct. 19, 2007)

JD–56—07
Indianapolis, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
FRYE ELECTRIC, INC.
and Case 25-CA-30270
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 481,
a/w INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO
Raifael Williams, Esq., for the General Counsel.
Michael L. Einterz, Esq., of Indianapolis, Indiana,
for the Respondent.
Steve Dunbar, of Indianapolis, Indiana, for the
Charging Party.
DECISION
Statement of the Case
PAUL BUXBAUM, Administrative Law Judge. This case was tried in Indianapolis,
Indiana, on July 23, 2007.1 The charge was filed March 5, and it was amended on May 23. The
complaint was issued May 29.
The complaint alleges that the Company wrongfully discharged two of its employees,
Thomas Fosnight and Dennis Hensley, because of their protected union activities. It is also
alleged that an agent of the Company, Rick Miers, coercively interrogated Fosnight about his
union activities. The General Counsel asserts that these actions violated Section 8(a)(1) and
(3) of the Act. The Company filed an answer denying the material allegations of the complaint.
As described in detail in the decision that follows, I conclude that the Company did violate the
Act in the manner alleged by the General Counsel.
On the entire record,2 including my observation of the demeanor of the witnesses, and

1 All dates are in 2007, unless otherwise indicated.
2 While the transcript of the proceedings is generally accurate, a few errors require
correction. At p. 22, l. 22, the witness testified that the Company has approximately “30”
employees. At p. 84, l. 13, “Four” should be “Poor.” At p. 97, l. 13, “and” should be “an.” On p.
148, l. 14, “me” should be “met.” Any other errors are not significant or material. Finally, p. 6 of
GC Exh. 10 was mistakenly placed in the record. See Tr. 164-166. As a result, I have not
Continued
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after considering the briefs filed by the General Counsel and the Company, I make the following
Findings of Fact
I. Jurisdiction
The Company, a corporation, engages in the business of electrical contracting at its
facility in Avon, Indiana, where it annually performs services valued in excess of $50,000 for
customers located outside the State of Indiana. The Company admits3 and I find that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Facts
Frye Electric, an Indiana corporation, was founded over 30 years ago by its president,
Harold (Hal) Frye. It has two types of operations in the electrical contracting field, residential
and commercial. The residential work typically consists of service calls for repairs to lights,
plugs, and switches. Commercial work involves both repair and construction assignments,
including installation of light fixtures, panels, and switches. The workload is evenly divided
between the two components.
At all relevant times, the Company has employed approximately 35 persons, including
29 nonsupervisory, nonclerical personnel. These consist of two classifications, lead electricians
and helpers. The work force is not represented by a labor organization. There are three
managerial employees, Frye, Miers, and Gregory Wells.4 Miers is the vice president of
operations and the number two ranking official in the Company. Wells is director of operations.
Both men report directly to the president, Frye. Generally speaking, Wells manages the
residential division and Miers is in charge of the commercial side.
The remaining key participants in the events of this case are two employees of the
Company, Fosnight and Hensley. Fosnight, a lead electrician, was originally hired by the
Company in April 2000. He remained in that position until December 5, 2005. The
circumstances of his departure in 2005 are somewhat unclear. The attorneys did not ask
Fosnight for his account of what led to his departure from employment. Initially, Frye was
unequivocal in asserting that Fosnight was fired, “because he was smoking pot during company
time in a company truck.” (Tr. 63.) Under further examination by counsel for the General
Counsel, Frye retreated from this contention. He was shown personnel records indicating that
Fosnight had twice smoked marijuana in a company vehicle. According to the records, he was
given a warning for the first offense. On the second occasion, the personnel file reflects that:
Tom smoked again (in truck?)[.] He was told to take
3 days off (w, th, f) by Rick M[iers]. Tom came in and
quit on Monday (Dec. 5th)?
_________________________
considered it for any purpose.
3 See the Company’s answer to the complaint, pars. 2 and 3. (GC Exh. 1(g).)
4 The Company concedes that these men are all supervisors and agents within the meaning
of the Act. See the Company’s answer to the complaint, par. 4, as supplemented by counsel for
the Company’s trial stipulation. (GC Exh. 1(g) and Tr. 9.)
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(GC Exh. 7, p. 2.) After examining this record, Frye testified that, “I’m not sure if he quit or not.”
(Tr. 65.)
Wells provided a different version, indicating that Fosnight was suspended for 5 days for
smoking pot in the van. As he described it, “I told him to take five days off of work, and he never
came back.”5 (Tr. 76.) On balance, I conclude that both Wells’ version and the description in
the personnel file support the conclusion that Fosnight was suspended for marijuana usage and
quit as a result.
It is undisputed that Fosnight was hired for a second time as a lead electrician in June
2006. This was initiated through communications involving Fosnight’s brother who had
continued to be employed by the Company. Fosnight testified that Frye asked his brother to
invite him to return to employment. Subsequently, Fosnight met with Frye and Miers. He
agreed to return to work, subject to certain conditions. He requested and received a wage
increase. In addition, he explained that family and other commitments precluded him from
accepting on-call assignments. This refers to the Company’s practice of making rotating weekly
assignments of employees to be available after hours and on weekends for emergency service
calls. Fosnight testified that Miers and Frye agreed to these terms of employment.6 As a result,
Fosnight returned to duty on June 20, 2006.
Just over two months later, Hensley joined the Company’s work force. He had been
working on hurricane reconstruction in Alabama. He testified that this work was disappearing,
leading him to contact Fosnight, whom he characterized as his “long-time friend.” (Tr. 155.)
Fosnight informed him that Frye was looking for staff. As a result, Hensley drove to Indiana to
complete an application. A week later he was hired by the Company as a helper. He was
informed of the decision to hire him by Fosnight. His original assignment was for commercial
work, typically helping an electrician named Tom Odell.
Matters continued in this posture until mid-to-late January. At that time, management
decided to alter Fosnight’s conditions of employment by requiring him to participate in the on-
call assignment rotation.7 Wells testified that he and Miers met with Fosnight to inform him of
this change. According to Wells, Fosnight responded by stating, “I’ll see what I can do.” (Tr.
102.) Nevertheless, Wells indicated that, after making that statement, Fosnight “cops a little

5 This bit of history regarding Fosnight is illustrative of the difficulties I have in accepting the
testimony of the Company’s managers. Frye made a clear-cut statement that crumbled under
further exploration. Wells gave an equally adamant account that contradicted the Company’s
own records in two key aspects. While Wells claimed that he was the person who suspended
Fosnight and that the suspension was for a period of five days, the records indicate that Miers
imposed the disciplinary action and that the period of suspension was actually three days. This
forms part of an overall pattern of incorrect and implausible assertions by the three managers
that lead me to conclude that their testimony was unreliable.
6 In addition to being uncontroverted by any management witnesses, Fosnight’s account of
his agreement with the Company regarding the terms of his rehire is also supported by the fact
that he was not assigned on-call duties during the vast majority of his period of employment.
His first on-call assignment was not scheduled to begin until March 23, almost a month after his
termination.
7 There was testimony that other employees were unhappy that Fosnight had been exempt
from this duty. While the Company did not present evidence as to the reasons for altering
Fosnight’s terms of hire, this factor may well explain it.
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attitude and walked out.” (Tr. 102.) Fosnight confirmed the meeting and reported that he
complained to the supervisors that he did not think this change in his conditions of employment
was fair due to their prior understanding regarding this issue.
The parties agree that Wells and Fosnight had a second discussion about the on-call
duty approximately a week or two later. Wells reported that Fosnight, “refused to take on call,
he wasn’t going to do it.” (Tr. 102.) Fosnight indicated that Wells became “loud and verbally
abusive with me.” (Tr. 138.) He told Fosnight that, “I could either take the call or I could be
terminated.” (Tr. 139.) Fosnight disputed Wells' assertion that he refused the assignment.
Instead, he testified that, “I said nothing. I bit my lip, turned around and walked out.” (Tr. 139.)
I resolve this conflict in the testimony by noting that the Company’s subsequent actions
support Fosnight’s account. That account indicates that Fosnight expressed disgruntlement
with the decision to place him on the emergency schedule, but never made a statement refusing
to perform the assignment. This is entirely consistent with the Company’s action placing his
name on the posted list for future on-call assignments. I conclude that it would have been odd
for the Company to have taken such action in the face of an unequivocal refusal to accept the
duty. Had Fosnight taken such a definitively negative stance, one would assume that the
Company would have implemented its decision to terminate his employment for such a refusal.
This, coupled with my general conclusion that the managers’ testimony was unreliable, leads
me to accept Fosnight’s version of the parties’ conversations during their meetings regarding
the on-call schedule.
In any event, it is undisputed that management proceeded to implement its decision to
require Fosnight to participate in the on-call rotation by posting a schedule showing that
Fosnight would have his first on-call assignment commencing on March 23. It is clear that the
decision to alter Fosnight’s conditions of employment led to his disaffection with his job. In
February, he contacted the Union, speaking with Organizer Steve Montgomery. Fosnight
explained that his purpose was “to see, you know, what kind of benefits and everything they had
available. If they had any job openings, as well.” (Tr. 130-131.) By this time, Hensley had been
transferred to duties on the residential side and was frequently assigned to work as Fosnight’s
helper. He testified that, on February 21, while they were working as a team, Fosnight told him
that he planned to meet with a union representative on the following day.
On February 21, Fosnight did meet with Montgomery at the union hall. They discussed
the Union’s benefits, and Montgomery instructed Fosnight to “speak to anybody else that may
be interested . . . as going into the union as well as myself.” (Tr. 133.) Montgomery presented
Fosnight with a booklet that outlined the Union’s wages and fringe benefits and solicited
Fosnight to “help organize Frye Electric.” (Tr. 172.) Finally, during the meeting, Fosnight
completed an application form for membership in the Union. On the form, he listed his
employment history. Regarding his current employment, he noted that, “I am having conflic[t]s
with the management making promises and going back on them.” (GC Exh. 8, p. 2.) In his
testimony, he explained that he was referring to the issue of the on-call assignment.
Two days later, on the morning of February 23, Fosnight and Hensley were present in
the Company’s breakroom prior to making their service calls. A number of other employees
were also present, including Keith Shepard, Corey Trotter, Shannon Reed, and Mike Cook.
They were located “a couple of feet” from Fosnight and Hensley. (Tr. 135.) At that time,
Fosnight began to recount to Hensley what he had learned regarding the benefits of
membership in the Union. He specifically addressed issues such as wages, benefits, and
scheduling of work assignments. In conjunction with this discussion, he showed Hensley the
booklet that he had been given describing the Union’s advantages. Fosnight testified that he
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“[m]entioned to [Hensley] about coming and joining the union, as well, and putting an application
in.” (Tr. 135.) He further testified that Hensley said he was “interested” in doing so. (Tr. 135.)
Hensley confirmed Fosnight’s account of their conversation, noting that other employees were
within “arm’s reach” and “could have easily, probably, have heard what we were talking about.”
(Tr. 158.)
Fosnight and Hensley’s discussion of the Union occurred on a Friday. On the following
Tuesday, the events of this case reached their culmination. On that day, Fosnight and Hensley
were assigned to work together. They took a Company van and proceeded to make service
calls. It is undisputed that, during the course of the day, the Company’s management decided
to fire both of these employees. Surprisingly, the managers’ testimony as to how this came
about was in substantial conflict. Wells reported that he spoke to Frye by telephone. He
recommended that both Fosnight and Hensley be terminated. Wells was very clear in asserting
that he and Frye jointly “[d]ecided what they were going to do.” (Tr. 104.) He noted that,
regarding Fosnight, Frye told him that, “I think it’s time just to part ways.” (Tr. 86.) Similarly,
Wells testified that both men discussed Hensley’s situation and concluded that he should be
fired. He confirmed counsel for the General Counsel’s assertion that, “both of you made the
decision to discharge Mr. Hensley.” (Tr. 90.)
Wells’ account would seem like a straightforward example of a company president and
the director of its residential department discussing and determining whether to discharge two
employees of that residential operation. Nevertheless, it is directly contradicted by Frye’s own
version of this decisionmaking process. For example, counsel for the General Counsel explored
with Frye the nature of that process regarding Hensley as follows:
COUNSEL: Now did you have any participation at all in the
decision to discharge Mr. Hensley?
FRYE: No.
COUNSEL: Do you know when the decision was made to
discharge Mr. Hensley?
FRYE: No.
COUNSEL: Do you know if anyone conducted an investigation
or anything like that prior to Mr. Hensley’s discharge?
FRYE: I wouldn’t know that.
COUNSEL: You don’t know?
FRYE: No.
(Tr. 58.) Similarly, counsel asked Frye who made the decision to fire Fosnight and when it was
made. He flatly indicated that Wells had made that determination and that he had no idea when
the decision had been made. Specifically, he was asked if Wells had consulted him prior to
Fosnight’s discharge and he responded, “I don’t believe so.” (Tr. 54.)
This stark contrast between the testimonies of the two managers is highly probative on
the overall questions of exactly what happened and what motivated the Company’s officials to
make it happen. It is certainly reasonable to expect that the two supervisors would be able to
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provide a consistent explanation of the manner in which it was decided to discharge the two
employees. In this regard, I note that the events under examination took place only a matter of
months before the trial of this case. The Company is a relatively small employer and the firing
of two employees on the same day was surely a noteworthy and unusual event.8 Despite this,
the Company was unable to present a coherent account of how it was decided to make these
important employment decisions.
In Black Entertainment Television, 324 NLRB 1161 (1997), the Board endorsed an
earlier observation by an administrative law judge that, “[t]he Board has long expressed the view
that when an employer vacillates in offering a rational and consistent account of its actions, an
inference may be drawn that the real reason for its conduct is not among those asserted.”
[Internal quotation marks and citation omitted.] I readily draw such an inference in this situation,
noting particularly that Frye’s professions of a degree of ignorance amounting to blithe
indifference regarding the decision to terminate two employees on the same day suggests that
he was attempting to distance himself from responsibility for an improperly motivated course of
conduct. It is far more likely that, as Wells described, the two men discussed the matter and
reached a joint decision to proceed with such consequential personnel actions.
After Wells and Frye decided to fire the two men, it fell to Wells to make the necessary
announcements. At the conclusion of the workday, Fosnight and Hensley returned to the
Company’s facility. While Hensley proceeded to unload tools from the van, Fosnight went
inside to clock out for the day. Fosnight testified that Wells approached him and stated that,
“they were parting ways with me.” (Tr. 136.) Wells agreed, reporting that he told Fosnight that,
“[w]e feel that it’s just best for us to part ways.”9 (Tr. 106.)
According to Wells, upon being fired, Fosnight responded, “[w]hatever,” and walked out
the door. (Tr. 106.) Shortly thereafter, he returned, throwing the keys to the Company’s van at
Wells. The two men had no further conversation and Fosnight left the premises. On the other
hand, Fosnight testified that he asked Wells for an explanation of why he was being terminated.
Wells declined to discuss it. Fosnight removed his things from the van and walked back inside.
He handed Wells the keys and left the premises.
As to these conflicting accounts of what transpired after Wells told Fosnight he was
discharged, I credit Fosnight’s. It comports with a common sense appreciation of human
behavior in this unhappy situation to conclude that a man who has just been told that he has
been deprived of his means of earning a living would attempt to learn why this was being done
to him. To believe that a person in Fosnight’s position, having heard such startling and
unpleasant news from his boss, would simply shrug it off as Wells claims is to ignore basic
human emotions.
Following his termination, Fosnight told Hensley what had just happened to him.
Hensley testified that he asked Fosnight why he had been fired. Fosnight explained that Wells,

8 Wells testified that, during a typical year, the Company discharges between one and three
employees for reasons of poor attitude or performance. Thus, the firing of Fosnight and
Hensley on the same day was roughly equivalent to a normal year’s worth of such activity.
9 Wells’ choice of language provides additional support to his account of how he and Frye
decided to fire the employees. It will be recalled that Wells testified that Frye confirmed the
decision to fire Fosnight by observing to Wells that, “I think it’s time just to part ways.” (Tr. 86.)
Unsurprisingly, Wells used Frye’s exact phrasing to convey their decision to Fosnight. Indeed,
he was careful to use the same language when firing Hensley as well.
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“didn’t give me any reason.” (Tr. 160.) Hensley proceeded to enter the facility in order to clock
out himself. Once inside, Wells approached and told Hensley that he was discharged. As Wells
testified, he told Hensley that, “it’s best we part ways.” (Tr. 110.) Both men agree that Hensley
asked for a reason for his firing. Wells’ response was to state, “let’s just leave it as the best
course to part ways.” (Tr. 110-111.) Hensley then left the premises and telephoned his wife to
report the bad news.
While driving home a few minutes after these events, Fosnight decided to telephone
Miers. Fosnight testified that he asked Miers about his termination and Miers, “told me he had
only learned about [it] minutes previous to it and then asked me what was this about biding my
time ‘till the union called.” (Tr. 136.) Miers confirmed that Fosnight phoned him shortly after his
termination and asked him, “if I knew what was going on and why.” (Tr. 198.) He reported that
he responded by telling Fosnight that, “Tom, I don’t know what’s going on yet. I said, once I find
out, I said I’ll let you know.” (Tr. 198.) This ended their conversation and they have never
spoken since. Miers specifically denied making any reference to the Union during this phone
call.
Once again, I must resolve a flat contradiction between these accounts. In doing so, I
note that Miers’ version strikes me as a highly unlikely course of action for a management
official to take. I find it very peculiar for a manager outside the normal chain of authority for the
residential operation, on learning of the discharge of a residential employee, to promise the
employee that he would investigate the matter and report back to the now-fired worker. Indeed,
reinforcing my conclusion in this regard is the fact that Miers readily conceded that he did not
perform any such investigation and did not report back to Fosnight at any time thereafter. His
feeble excuse for breaking his supposed commitment to do so was simply that Fosnight, “didn’t
call me back. Obviously, he wasn’t interested as to why [he had been fired].” (Tr. 202.) I reject
this illogical picture of events and credit Fosnight’s testimony that Miers gave him a veiled
account of the true reason for his discharge through the mechanism of posing a question about
Fosnight’s union activities.
It will be recalled that the Company’s explanation of the opening chapter of the events
involving the discharges at issue in this case was marked by contradictory testimony. Frye and
Wells were unable to present a coherent account of the manner in which they decided to fire the
two employees. It is noteworthy that the final chapter of this tale was similarly clouded by the
Company’s inability to explain a matter as simple as the post-discharge documentation of the
firings.
It is uncontroverted that, at the time they were fired, Fosnight and Hensley were not
given any written documentation regarding their terminations. Instead, Wells testified that he
prepared such reports, “[r]ight after they walked out the door.” (Tr. 108.) However, when shown
the actual reports, he noted that they were dated as of the following day, February 28. As a
result, he had to concede that he had actually prepared these reports on the following day.
Taken in isolation, this would be a minor point. However, viewed in the context of a string of
inaccuracies and contradictions, it underscores the conclusion that the Company has been
unable to provide a rational and consistent account of its behavior regarding the key events of
this case.
To round out the history of this matter, Fosnight testified that he contacted Montgomery
on the day after his termination. He advised Montgomery that he had been terminated and that,
“the only excuse I got was they asked me why I was biding my time ‘till the union called.’” (Tr.
140.) Montgomery referred him to another union official, Steve Dunbar. On March 1, Dunbar
met with both Fosnight and Hensley. During the course of this meeting, Hensley prepared a
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union application form. That form was misplaced. As a result, Hensley completed a second
application on March 6. It indicates that Fosnight was the person who had referred him to the
Union. Finally, I note that the Union filed the original charge in this case on March 5, and an
amended charge on May 23. The complaint issued on May 29.
B. Legal Analysis
1. The discharges of Fosnight and Hensley
In assessing the legality of the Company’s terminations of Fosnight and Hensley, the key
inquiry will focus on the question of the employer’s motivation. As a result, I must apply the
analytical framework for analysis devised by the Board in Wright Line.10 A comprehensive
distillation of that test was provided by the Board in American Gardens Management Co., 338
NLRB 644, 645 (2002):
Wright Line is premised on the legal principle that an employer’s
unlawful motivation must be established as a precondition to finding
an 8(a)(3) violation. In Wright Line, the Board set forth the causation
test it would henceforth employ in all cases alleging violations of
Section 8(a)(3). The Board stated that it would, first, require the General
Counsel to make an initial showing sufficient to support the inference
that protected conduct was a motivating factor in the employer’s decision.
If the General Counsel makes that showing, the burden would then shift
to the employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The ultimate burden
remains, however, with the General Counsel.
To establish his initial burden under Wright Line, the General Counsel must
establish four elements by a preponderance of the evidence. First, the
General Counsel must show the existence of activity protected by the Act.
Second, the General Counsel must prove that the respondent was aware
that the employee had engaged in such activity. Third, the General Counsel
must show that the alleged discriminatee suffered an adverse employment
action. Fourth, the General Counsel must establish a motivational link, or
nexus, between the employee’s protected activity and the adverse
employment action.
If, after considering all of the relevant evidence, the General Counsel has
sustained his burden of proving each of these four elements by a
preponderance of the evidence, such proof warrants at least an inference
that the employee’s protected conduct was a motivating factor in the
adverse employment action and creates a rebuttable presumption that a
violation of the Act has occurred. Under Wright Line the burden then shifts
to the employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. [Internal quotation
marks, citations, footnotes, and language not relevant to this case have
been omitted.]

10 251 NLRB 1083 (1980), enf. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399-403 (1983).
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In applying its Wright Line test, the Board mandates consideration of a wide range of
evidence and appropriate inferences derived from that evidence. In West Maui Resort Partners,
340 NLRB 846, 847 (2003), rev. dismissed, 2004 WL 210675 (D.C. Cir. 2004), it observed:
Proof of discriminatory motivation can be based on direct evidence or can
be inferred from circumstantial evidence based on the record as a whole.
To support an inference of unlawful motivation, the Board looks to such
factors as inconsistencies between the proferred reason for the discipline
and other actions of the employer, disparate treatment of certain employees
compared to other employees with similar work records or offenses,
deviation from past practice, and proximity in time of discipline to the union
activity. [Citations omitted.]
Keeping these principles in mind, I will now examine the facts and circumstances involved in the
discharges at issue.
Initially, the General Counsel must show that the employees engaged in protected
activities within the meaning of the Act. Of course, it is clear that Fosnight, spurred by
dissatisfaction with the decision to require him to perform on-call duty, contacted the Union and
applied for membership in it. Thereafter, he discussed the Union with a fellow employee,
Hensley. As Hensley put it, Fosnight told him about the “benefits of the union.” (Tr. 158.)
Without doubt, Fosnight’s course of conduct represented a classic example of activities
protected by the Act.
The situation is only slightly less clear regarding Hensley’s involvement in protected
union activities. While recognizing that Hensley did not apply for membership until after his
discharge, it is apparent that he did engage in discussions with Fosnight regarding the Union.
When Fosnight solicited Hensley to join, he “said he was interested.” (Tr. 135.) By engaging in
such discussions about the benefits of union membership, Hensley placed himself within the
protections of the Act.11
Having found that the two employees engaged in protected union activities, I must next
determine whether the Company was aware of their involvement in this conduct. Turning first to
Fosnight, I conclude that there is direct evidence that management was aware of his union
activities. It will be recalled that immediately after he was discharged, Fosnight telephoned
Miers and inquired why he had been fired. Miers responded by asking Fosnight, “what was this
about biding my time ‘till the union called.” (Tr. 136.) This statement by the Company’s second
highest ranking official clearly shows knowledge of Fosnight’s union activities.12

11 Even if I were to find that Hensley had not engaged in protected activity, his discharge
would be unlawful. His situation is similar to that presented in Martech Medical Products, 331
NLRB 487 (2000), enf. 6 Fed. Appx. 14 (D.C. Cir. 2001). In that case, an employee who had
not engaged in union activity was fired along with other active union supporters. The employee
was known to eat lunch with the activists, one of whom was her sister. The Board found her
discharge to be unlawful, noting that “the discharge of an employee who is not known to have
engaged in union activity, but who has a close relationship with a known union supporter may
give rise to an inference of discrimination.” Supra at 488. Hensley was known as a close friend
of Fosnight. Indeed, the Company chose to have Fosnight call Hensley to inform him that he
had been hired. The two men were often assigned to work as a team. I conclude that, at a
minimum, Hensley was targeted due to his friendship with Fosnight.
12 The fact that this direct evidence of knowledge arose after Fosnight’s discharge is
Continued
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In addition to direct evidence of knowledge about protected activities, the Board turns to
analysis of a variety of other factors in assessing this element of the Wright Line test. This was
comprehensively explained in Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enf. 97
F.3d 1448 (4th Cir. 1996) as follows:
[A] prerequisite to establishing that [employees] were wrongfully
discharged is finding that the Respondent knew of their union
activities. This “knowledge” need not be established directly,
however, but may rest on circumstantial evidence from which a
reasonable inference of knowledge may be drawn. Indeed, the
Board has inferred knowledge based on such circumstantial
evidence as: (1) the timing of the allegedly discriminatory action;
(2) the respondent’s general knowledge of union activities; (3) animus;
and (4) disparate treatment. The Board additionally has relied on
factors including the delay between the conduct cited by the respondent
as the basis for the discipline and the actual discharge, and—in the
case of multiple discriminatees—that the discriminatees were
simultaneously discharged.
Finally, the Board has inferred knowledge where the reason given for the
discipline is so baseless, unreasonable, or contrived as to itself raise a
presumption of wrongful motive. Even where the employer’s rationale is not
patently contrived, the Board has held that the “weakness of an employer’s
reasons for adverse personnel action can be a factor raising a suspicion of
unlawful motivation.”
The factors on which the Board relies when inferring knowledge do not
exist in isolation, but frequently coexist. For example, in BMD Sportswear
Corp., the Board reversed the judge and found that the General Counsel
had established that alleged discriminatees were unlawfully laid off, even
in the absence of direct evidence that the employer knew of their union
activities. There the respondent had demonstrated antiunion animus,
discriminated against other employees, proffered unsubstantiated reasons
for the layoff, and the layoffs were proximate to the start of the union
organizing campaign. [Footnote and numerous citations omitted.]
Turning to the application of these factors, it is first vital to note the temporal relationship
between the employees’ breakroom conversation and the disciplinary action taken against
them. Fosnight and Hensley engaged in a favorable discussion about the Union on the morning
of Friday, February 23. During their conversation at least four fellow employees were located
within easy hearing distance. I readily infer that it was probable that their conversation was
overheard and became the subject of discussion among other persons associated with the
Company.13 Significant confirmation of this was provided by Miers. He testified that, while he
_________________________
immaterial. The situation is virtually identical to that presented in Davey Roofing, Inc., 341
NLRB 222, 223 (2004) where an employer’s knowledge was established when a discharged
employee was interrogated about his union involvement one week after he had been fired.
13 The Board has not hesitated to draw the same conclusion in similar circumstances. See,
for example, Verizon Wireless, 349 NLRB No. 62, slip op. at 4 (2007) (where employee’s
comments were made in a work area occupied by coworkers, “[i]t is thus reasonable to assume
Continued
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was unaware of the discharged employees’ union activities on the date of their discharge, he
learned of it on the very next day. He reported that he gained this knowledge, “through fellow
employees, scuttlebutt.” (Tr. 198.) Significantly, it was on the second succeeding workday after
their breakroom discussion that the two men were fired.
I conclude that Miers’ contention that he encountered this scuttlebutt only on the day
after the discharges is all too convenient. In its so-called “small plant doctrine,” the Board has
long recognized that it is reasonable to infer that management of a small firm is likely to gain
knowledge of the identity of employees who are involved in union activities. See Wiese Plow
Welding Co., 123 NLRB 616 (1959); D & D Distribution Co. v. NLRB, 801 F.2d 636 at fn. 1 (3rd
Cir. 1986) (“The essence of the small plant doctrine rests on the view that an employer at a
small facility is likely to notice activities at the plant because of the closer working environment
between management and labor.”); and LaGloria Oil & Gas Co., 337 NLRB 1120, 1123 (2002),
affd. 71 Fed. Appx. 441 (5th Cir. 2003). Miers’ admission that there was virtually
contemporaneous scuttlebutt about the union activity strongly supports the validity of the
application of the small plant doctrine to the facts of this case.
In addition to the inference I have drawn based on the likelihood that Fosnight and
Hensley’s conversation about the Union was overheard and reported to management, other
powerful circumstantial evidence supports a finding of knowledge of the protected union activity.
One of the most compelling items of that proof is the timing of the discharges. As a labor law
judge, I am often struck by the power of emotions such as anger and fear to trump the wiser and
more rational aspects of human nature resulting in a virtual compulsion to take revealingly hasty
action in response to union activity. This case presents a classic example of this phenomenon.
Fosnight and Hensley discussed the benefits of the Union in a conversation conducted
in the presence of a number of fellow employees. The conversation took place on Friday,
February 23. The men were discharged on the following Tuesday, February 27. Thus, the
lapsed time between these two events was only two workdays. Decades ago, an appellate
court hit upon a felicitous phrase to describe the conclusion that may properly be drawn from
such a close proximity. In NLRB v. Rubin, 424 F.2d 748, 750 (2d Cir. 1970), similar facts
prompted the Court to affirm a finding of unlawful discrimination, based in significant part on
“stunningly obvious timing.”14 I do not hesitate to draw the same inference here.
The Board also applies a related concept when assessing the circumstantial evidence
regarding an employer’s behavior. Once again citing the Second Circuit, the Board has noted
that, “[t]he abruptness of the discharge[ ] and [its] timing are ‘persuasive evidence’ that the
company had moved swiftly to eradicate the . . . prime mover[ ] of the union drive.” Toll Mfg.
Co., 341 NLRB 832, 833 (2004), citing Abbey’s Transportation Services v. NLRB, 837 F.2d 575,
580 (2d Cir. 1988). Here, the abruptness of the discharges is noteworthy. As counsel for the
General Counsel observes:
The fact that the respondent waited until after Fosnight’s
and Hensley’s termination to prepare [termination] reports
_________________________
that others likely overheard.”)
14 This phrase has been cited many times since, sometimes missing its original attribution.
See, for example, Gaetano & Associates, Inc., 344 NLRB 531, 532 (2005) (“An inference of
antiunion animus is proper when—as here—the timing of a management decision is ‘stunningly
obvious.’ NLRB v. American Geri-Care, 697 F.2d 56, 60 (2d Cir. 1982), cert. denied 461 U.S.
906 (1983).”).
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suggests that respondent was in a hurry to discharge
Fosnight and Hensley first and think of the reasons for their
discharges afterwards.
(GC Br., pp. 7-8.) I find the precipitous timing and the abrupt nature of the terminations in this
case to be highly probative of unlawful activity.
Yet another piece of the inferential puzzle is added by noting that the Company took
action against both employees at the same time. It will be recalled that this is unusual since, in
a typical year, this employer would terminate between one and three employees for disciplinary
reasons. Added to the rarity of a multiple termination is the striking fact that the employees
chosen for termination happen to be the same employees who were in a position to be
overheard giving favorable consideration to union organizing activity. As the Board has noted, a
“discriminatory discharge of one worker [is] a factor to consider in weighing whether the
contemporaneous discharge of a second coworker, who engaged at the same time in the same
prounion activity, was discriminatory.” Yellow Enterprise Systems, 342 NLRB 804 (2004), citing
Howard’s Sheet Metal, Inc., 333 NLRB 361 (2001). See also Extreme Building Services Corp.,
349 NLRB No. 86, slip op. at 3 (2007) (earlier discharge of employee for union activity “strongly
supports” a finding of unlawful motivation in discharge of second employee who engaged in the
same protected activity).
I find convincing proof of employer knowledge of union activity from the direct evidence
of Miers’ statement to Fosnight coupled with the circumstantial evidence showing that the men
could readily have been overheard discussing the matter, the ease of the dissemination of
knowledge in a small facility, the timing of the terminations, the abruptness with which the
terminations were accomplished, and the fact that the only employees who were considering
union involvement were the ones selected for simultaneous termination.
Beyond all this, there remains an equally powerful inferential factor, the pretextual nature
of the employer’s purported rationales for the adverse employment decisions. The Board holds
that, “the pretextual nature of the Respondent’s reasons for [an employee’s] discharge supports
an inference that the Respondent had both knowledge of [the employee’s] protected activity and
animus towards that activity.” State Plaza, Inc., 347 NLRB No. 70, slip op. at 3 (2006). [Citation
omitted.] Because the issue of pretext is also highly probative on the issue of antiunion
motivation, I will defer detailed discussion of it to that portion of the Wright Line analysis. Suffice
it to say that my finding of pretext is an additional substantial element in my conclusion that the
employer knew of the protected union activity by Fosnight and Hensley.
The next step in the Wright Line process is perhaps the simplest, a determination as to
whether the employees were subject to an adverse action by their employer. In this case,
Fosnight and Hensley were given the ultimate employment sanction, the termination of their
means of earning a living.
Having found that Fosnight and Hensley engaged in protected union activity, that the
management of the Company was aware of their participation in that activity, and that the
Company took adverse action against the men, it remains to determine whether there is a
motivational link between the knowledge of union activity and the subsequent discharges. The
starting point for this evaluation is the documentary record prepared by the official who
conveyed the decision for termination to the affected employees.
It is uncontroverted that, at the time of their discharges, neither employee was given any
verbal explanation of the reason for the adverse actions. In addition, I credit their testimony that
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they never received any written documentation of the terminations.15 In contradictory fashion,
Wells first testified that he prepared such reports, “[r]ight after they walked out the door.” (Tr.
108.) Later, he conceded that he wrote the reports on the following morning. Significantly, he
also testified that those reports were “intended as an internal document.” (Tr. 108.) I credit this
explanation for the purpose of these reports because it is consistent with the fact that they were
never issued to the employees. Thus, they were not intended to serve as an explanation to
those employees for the action taken against them. Rather, they must have been designed as a
record of the personnel action created for the purpose of explaining that action to others with a
legitimate interest in comprehending the reasons for the firings.
Wells prepared these two documents using the Company’s preprinted form entitled,
“termination report.” That form requires the preparer to circle one of three possible reasons for
an employee’s departure from employment: “quit,” “insubordination,” or “reduction in force.”
(GC Exhs. 3 & 5.) It also requires the supervisor to rate the employee on a grading scale
ranging from excellent to unsatisfactory. The rating categories are for attendance, cooperation,
initiative, job knowledge, and quality of work. The form also permits the evaluator to provide
customized details in a space set aside for that purpose. Finally, the preparer of the form must
circle a recommendation regarding the desirability of rehiring the affected employee.
Fosnight’s form shows that he was terminated from his position as a lead electrician in
the residential department due to a “reduction in force.” (GC Exh. 3, p. 1.) The form’s
evaluation shows that Fosnight’s attendance was good and his job knowledge and quality of
work were satisfactory. His initiative was described as fair, while his cooperation was
characterized as unsatisfactory. In the written remarks, Fosnight’s attitude was deemed, “bad.”
Two examples were cited, a claim that he was the last person to arrive at work every morning
and a notation that he “did not want to do night duty (on call).” (GC Exh. 3, p. 1.) It was also
recommended that Fosnight not be considered for rehire.
Hensley’s termination report indicated that he was terminated from his position as a
helper in the residential department due to a “reduction in force.” (GC Exh. 5.) His evaluation
grades were fair in all categories with the exception of an unsatisfactory rating in attendance.
No explanatory details were provided, but it was recommended that he not be considered for
rehire.
The documentary record created on the day after the terminations indicates that
Fosnight was terminated as part of a reduction in force. Apparently, he was selected for layoff
due to a bad attitude. Hensley’s termination was also due to a reduction in force and it would
appear that he was selected due to unsatisfactory attendance. 16
An important part of the motivational analysis involves an examination as to whether the
Company’s officials have been consistent in their depiction of their reasoning supporting the
termination decisions. As the Board has observed, any lack of consistency is important
because, “[i]t is well established that shifting of defenses weakens the employer’s case,
because it raises the inference that the employer is ‘grasping for reasons’ to justify an unlawful
discharge.” Meaden Screw Products, 336 NLRB 298, 302 (2001).

15 This is not seriously controverted. The best that Wells could offer was that he was “not
sure” if the men ever received their termination reports. (Tr. 108.)
16 Although both termination reports classify the discharges as resulting from a reduction in
force, the Company presented no evidence that it was conducting a layoff. To the contrary,
Wells testified that, “in our business, day-to-day operations[,] everybody is so busy[.]” (Tr. 76.)
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Both Frye and Wells were carefully examined as to the reasons for terminating their
employees. Regarding Fosnight, Frye cited several justifications during his examination by
counsel for the General Counsel. The first proferred reason was the existence of complaints
from several other employees regarding Fosnight’s “bad attitude.” (Tr. 43.) Specifically, Frye
indicated that employees complained that Fosnight was “on the phone most—80% of the time
instead of working, just bad work ethics.” (Tr. 43.) Frye added, “I think he had some
absenteeism problems. Some tardiness problems, I believe.” (Tr. 48.) Counsel for the General
Counsel pressed Frye to ascertain if there were any other reasons for Fosnight’s termination.
Frye’s answer simply reiterated concerns about attitude and attendance. Only after being
shown the termination report did Frye make mention that Fosnight “did not want to do night
duty.” (Tr. 50.)
Naturally, Wells was also examined regarding the reasons for Fosnight’s discharge. He
cited Fosnight’s bad attitude, refusal to take on-call duty, and tardiness. When asked to
describe Fosnight’s attitude, Wells testified that it was, “[p]oor. He had a lot of things going on
personally. Staying on his cell phone all day. Productivity. Workmanship . . . Quality of work.”
(Tr. 84.)
In assessing the employer’s asserted reasons for terminating Fosnight, I have
considered the termination report in conjunction with the testimony from Frye and Wells. At the
outset, it is noteworthy that the primary factor cited by all three sources was Fosnight’s attitude
and unsatisfactory rating in the area of cooperation. While this is a consistent explanation for
his termination, it is a highly troublesome one. In James Julian, Inc. of Delaware, 325 NLRB
1109 (1998), it was noted that, “[t]he Board has repeatedly found, with court approval, that, in a
labor-relations context, company complaints about a ‘bad attitude’ are often euphemisms for
prounion sentiments.” [Citations omitted.] Very recently, the Board reiterated that, “[i]t is well
settled that an employer’s reference to an employee’s ‘attitude’ can be a disguised reference to
the employee’s protected concerted activity.” Rock Valley Trucking Co., 350 NLRB No. 10 at
fn. 6 (2007). [Citation omitted.]
I recognize that a supervisor’s complaint that a worker possesses a bad attitude is not
invariably a disguised reference to union activity. Instead, when attitude is flagged as the key
justification for an adverse action, it is important to consider all of the circumstances. In this
case, I find that those circumstances support the inference that the attitude problems refer in
substantial part to protected activity. It will be recalled that the Company chose to rehire
Fosnight and promised him that he would not be required to perform on-call duty. During his
period of reemployment, he had no record of disciplinary action in his personnel file. This
strongly suggests that his work ethic was deemed satisfactory.17 The termination report’s
evaluation showed acceptable ratings in every area except the one related to attitude. If
Fosnight’s supposedly bad attitude did not manifest itself in unacceptable attendance, initiative,
or job quality, it would appear more likely to be related to protected activity. The suspicious
nature of the reliance on Fosnight’s attitude was underscored by Wells’ choice of language in
elaborating on this question. When asked why Fosnight was fired, he reported that, “[b]asically,

17 Furthermore, even the termination report is careful to indicate that Fosnight did not
actually refuse to perform on-call duty, he simply indicated that he “did not want to do night
duty.” (GC Exh. 3, p. 1.) Indeed, if the Company had believed that Fosnight had actually
refused to do that duty, it would surely have characterized his separation as being due to
insubordination. It will be recalled that the termination report form listed this as one of the three
possible types of separations.
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his attitude was carrying over to the other guys . . . Morale. Bringing morale down.” (Tr. 81.)
This is a classic formulation for raising grave concern regarding an unlawful motivation for
Fosnight’s discharge.18
The primary alleged reason for Fosnight’s discharge was consistently asserted, but
fatally linked to protected activity. The secondary reasons were not consistently articulated and
are not credible. His supposedly excessive use of the cell phone was not cited in the written
description intended to explain his discharge. Furthermore, the claim that he spent 80 percent
of his time talking on his phone is clearly inconsistent with his evaluation showing good
attendance and satisfactory quality of work. Even more striking was the reliance by Wells and
Frye on claims that Fosnight exhibited poor attendance, including frequent tardiness. Such a
contention is completely belied by Fosnight’s rating of “Good” in the area of attendance.
Indeed, his job evaluation shows that attendance was his strongest suit. Similarly, any
contention that poor workmanship was a factor in his dismissal is fatally undermined by his
earlier unsolicited offer of reemployment and his “satisfactory” rating on this aspect of his
employment evaluation in the termination report.
Finally, I reject any claim that Fosnight was fired for refusing to perform on-call duty. I
credit the evidence demonstrating that he never refused this change in his conditions of
employment. While his unhappiness about this newly-imposed requirement prompted his
protected activity, it did not lead him to engage in any act of insubordination. His hasty
termination was effectuated long before his first scheduled on-call duty in late March.
In sum, I conclude that the only consistent rationale offered for Fosnight’s discharge was
his bad attitude. Considering all of the circumstances, I find that what was meant by this was
Fosnight’s involvement in protected concerted activities. The other proferred justifications are
makeweights that are fatally undermined by the job evaluation report prepared by Wells on the
morning after the termination. Indeed, that evaluation and the written comments that
supplement it make it very clear that Fosnight was discharged solely due to his poor attitude, a
reason that in this case was based on an unlawful motivation.
The situation is similar regarding Hensley. His job evaluation showed an unsatisfactory
rating in only one area, attendance. In striking contrast, when Frye was asked why Hensley
was fired, he cited a multitude of reasons that did not include attendance. The testimony went
as follows:
COUNSEL: Do you know or can you explain to me the reasons for
Mr. Hensley’s discharge?
FRYE: The only thing I heard is that, afterwards, and I talked to some
of our lead electricians afterwards, is the reason Greg [Wells]
let him go is because of some bad work ethics.
COUNSEL: What do you mean bad work ethics?

18 Wells went on to refer to the impact on other employees of Fosnight’s unwillingness to do
on-call work. Given that the Company had agreed to exempt him from this duty due to his
scheduling problems, I view this largely as a smokescreen. Any disaffection among other
employees caused by Fosnight’s exemption from on-call duty was the result of a management
decision, not an attitude problem on the part of Fosnight.
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FRYE: My employees in the field said that he was lazy. I believe he
refused to do a couple of jobs that they asked him to do. The
commercial side just said that they couldn’t work with him.
COUNSEL: So let’s make sure the record is clear. Mr. Hensley was
discharged because of his work ethic, his work performance?
FRYE: I believe that’s what Greg had told me afterwards.
COUNSEL: And that entailed what? What was wrong with his work
performance?
FRYE: Just a lack of attitude on the jobsite and the employees that
worked with him said that he just didn’t work, wouldn’t work.
COUNSEL: And, to the best of your knowledge, those are the reasons he
was discharged?
FRYE: I believe so.
(Tr. 56.)
Wells was also asked why Hensley was fired. His response was, “Attendance. Attitude.
Insubordination.” (Tr. 90.) Asked if there was anything else, he responded, “[t]hat’s all that
comes to my mind right now.” (Tr. 90.) When asked for details about the issue of
insubordination, Wells explained that this referred to an incident that happened a couple of
weeks prior to his termination. It consisted of a refusal by Hensley to comply with his lead
electrician’s instruction to get into a crawl space.19
I have examined all of the evidence regarding the Company’s supposed reasons for
discharging Hensley. The termination report sets forth a straightforward solitary justification,
poor attendance. By contrast, the two management witnesses offered a grab bag of additional
reasons from vague complaints about attitude and work performance to a grievous accusation
of insubordination. The Board has often discussed the significance of this variance between the
rationale written in a company’s personnel records and the accounts of its executives on the
witness stand. In McClendon Electrical Services, 340 NLRB 613, 614 (2003), an employee
named Elgin’s disciplinary notice stated that he was discharged for failure to complete a shift
and insubordination. The Board went on to note that,
[a]t the hearing, [the owner] added several additional reasons
for discharging Elgin: (1) he was in a 90-day probationary period;
(2) his work was slow/lethargic and generally not good; and (3) he
had some absences and was late a couple of times. These
deficiencies, however, were not contained in the disciplinary notice,
which set forth the other grounds, discussed above. The Company’s

19 Nothing in Hensley’s file corroborates this alleged incident. The only possible reference is
a notation in his attendance record form on February 22 indicating that Hensley was “sent home
because he was complaining on who he was working [indecipherable word].” (R. Exh. 1, p. 6.)
If this is indeed the incident Wells cited, the record indicates that it was Hensley who was
complaining, not his lead electrician.
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vacillation and the multiplicity of its alleged reasons for firing the
employee render its claims of non-discrimination the less convincing.
Indeed, such shifting assertions strengthen the inference that the
true reason was for protected activity. [Citations, quotation marks, and
some punctuation omitted for clarity.]
Similarly, in Desert Toyota, 346 NLRB No. 3, slip op. at 3 (2005), a fired employee’s termination
form cited reduction in force and decline in job performance and attitude. At trial, management
witnesses added additional reasons including failure to follow the chain of command and lack of
respect. The Board pointedly observed that, “[b]y adding these makeweight reasons during the
hearing, and thereby changing the source of the decision to discharge [the employee], it
appears that the Respondent was simply making up its defense as it went along.” In my view,
that is precisely what happened in this case.
Particularly striking is the situation with regard to the claim of Hensley’s insubordination.
There can be little doubt that insubordination is a grievous workplace offense that is often a
readily understandable basis for a discharge from employment. Had Hensley actually engaged
in such misbehavior, one would reasonably expect that the Company’s personnel record would
contain details regarding the incident and any accompanying disciplinary action. Hensley’s
record is barren in this regard with the possible exception of a vague and inconclusive reference
to an incident on February 22. Of the greatest significance is the fact that his termination report
does not cite insubordination as the reason for his discharge. This is particularly noteworthy
because insubordination is one of only three printed types of separations listed on the
Company’s termination report form. Beyond this, Hensley’s job rating in the area of cooperation
was fair. Obviously, an employee who was being discharged for insubordination would be
shown as having an unsatisfactory level of cooperation. I am convinced that Hensley’s
supposed insubordination is a clear example of a pretext being used to disguise an unlawful
motivation.
In addition to a bogus claim of insubordination, the employer raised a claim that Hensley
had a poor attitude manifested through laziness and poor quality job performance. Once again,
this is belied by his job evaluation ratings in the key areas of quality of work, initiative, and
cooperation. An employee who was being discharged for genuine laziness and substandard
work would not have been rated as having “fair” performance in these areas of evaluation. This
leaves attendance as the remaining reason. While Hensley did have some attendance
problems, I conclude that they were not the reason for his termination.20
Having found that the Company was unable to present a rational, clear, or consistent
account of the grounds for the terminations of Fosnight and Hensley, I will next examine
whether those terminations were in accord with the established disciplinary policies of the

20 The pretextual nature of the Company’s contention that it fired Hensley for poor
attendance is underscored by comparison of its characterization of Hensley’s record with the
documents that it submitted in support of its defense. Counsel for the Company claims that
Hensley exhibited deficient attendance, “missing about 1 day per week of work.” (R. Br., p. 7.)
Actually, the Company’s own record of Hensley’s attendance shows that he missed 7 days
during his 6-month employment. (R. Exh. 1, pp. 2-3.) This continuing pattern of gross
exaggeration underscores my conclusion that attendance is a mere chimera designed to
disguise the actual cause of the decision to fire this employee. I will further discuss my
reasoning for this conclusion during my upcoming analysis of the Company’s overall disciplinary
policies and practices.
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Company and its typical practices in this area. This is important because the Board holds that,
“the fact that the Respondent’s behavior was inconsistent with its progressive discipline system
and its past practice” is probative evidence of discriminatory motivation. Tubular Corp. of
America, 337 NLRB 99 (2001).
As in the case just cited, this employer maintains a written progressive disciplinary
system. That system is described in the Company’s handbook. The most recent edition of the
handbook is dated January 1, 2007. Previous editions contained the same provisions. The
handbook classifies offenses into two categories. Class one offenses are more serious
transgressions that may subject the employee to immediate termination. Class two offenses
consist of other violations that may result in the issuance of a written warning that “will be
retained in the employee’s personnel folder.” (GC Exh. 2, Handbook, p. 17.) The accumulation
of three such written reprimands may result in termination.
It is instructive to compare the treatment of Fosnight and Hensley with the terms of this
disciplinary system. At the outset, it is particularly noteworthy that the relevant personnel files
for these two employees are barren of any prior written reprimands of the type described in
detail in the handbook. As a result, their termination pursuant to the policy would require a
finding that they committed a class one offense. Of the 13 such offenses specified in the
handbook, the only one that could conceivably apply to either employee was excessive
absenteeism.
Significantly, the handbook provides a clear roadmap for management of the problem of
absenteeism, including tardiness. In a classic example of progressive discipline, it provides for
a verbal warning with written notice to the personnel file for a first offense, written warning for a
second offense, suspension for the third offense, and possible termination “after management
review” for a fourth infraction. (GC Exh. 2, Handbook, p. 9.) The same system of increasing
penalties is applied in cases of tardiness.
While the Company contends that a reason for the terminations of Fosnight and Hensley
was poor attendance, it is evident that their terminations did not comport with the progressive
system described in the handbook. Under that system, before termination would be considered,
each employee would have had to accumulate at least one verbal warning with written notation,
a written warning, and a prior suspension for violation of the attendance policy. This simply did
not occur.
All of the remaining criticisms of the two employees cited by management as justifying
their dismissal fall within the definition of class two offenses in the handbook. In particular, they
would fall within the prohibition against, “[n]egligence, carelessness, or conduct that adversely
affects quality or quantity of you[r] work.” (GC Exh. 2, Handbook, p. 17.) The handbook
specifies that the punishment in such cases is the issuance of a written warning or reprimand
that is retained in the personnel file. In addition, “[a]ccumulation of three reprimands may result
in termination.” (GC Exh. 2, p. 17.) Furthermore, the handbook underscores the importance of
the documentary record in this regard by noting that, “[a]ll letters and reprimands are kept as a
permanent record in your personnel file.” (GC Exh. 2, p. 17.) Once again, it is obvious that the
discharges of Fosnight and Hensley do not fall anywhere within the Company’s written
disciplinary system. Since their personnel files did not contain even a single written warning or
reprimand, their discharge for any class two offense or offenses violates the handbook. This is
potent evidence of a rush to judgment arising from an unlawful motivation.
I recognize that employer rulebooks are not analogous to codes of criminal conduct.
Experience in this area of litigation and common sense inform us that many small employers
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ignore the rules in the day-to-day operation of their business enterprises. Both Frye and Wells
testified that such was the case with this firm. Indeed, Wells noted that the operation was so
busy that it was impossible to comply with the disciplinary procedures in the handbook. As a
result, the failure to follow those procedures in this case would be explainable if the terminations
of Fosnight and Hensley were consistent with the Company’s actual practices even where those
practices appeared to violate the handbook.
Unfortunately, the evidence overwhelmingly establishes that the discharges of the two
employees were entirely inconsistent with the Company’s past history of handling allegations of
employee misconduct. While the Company’s officials readily reported that they did not follow
the handbook, they are were clear in asserting that they departed from that handbook’s
provisions by being far more lenient toward the employees than was authorized by the
handbook. Wells summarized this point very authoritatively as follows:
You know, to be just truthful, in our business, day-to-day
operations everybody is so busy a lot of times it’s just
verbal reprimand, me talking to you just like we’re talking
now. You know, get your crap together, and hope that
they will.
(Tr. 76.) Indeed, at another point in his testimony, Wells made a point of observing that, “[w]hen
it comes to us, we’re pretty soft at heart.” (Tr. 100.)
Frye’s testimony was to the same effect. He observed that 95 percent of the Company’s
discipline consisted of verbal admonitions. I was so struck by these professions of tolerance
and leniency that I pressed Frye on this point by asking him what the punishment would be for
an employee who physically assaulted him. While he indicated that the hypothetical attacker
would probably be terminated, he added, “[b]ut we tolerate a lot, so —.” (Tr. 37.)
What makes this all the more interesting is the fact that management’s professions of
generosity and lenience were clearly applied to Fosnight and Hensley prior to their involvement
in protected activity. In particular, I note that during Fosnight’s first period of employment, he
was afforded such treatment to a striking degree. It will be recalled that he was twice found to
have been smoking marijuana in a company vehicle on company time. This is an obvious class
one offense under the terms of the handbook.21 The handbook provides for the possibility of
“immediate termination” for even a first such offense. (GC Exh. 2, Handbook, p. 17.) Despite
this, Fosnight was given a warning for the first offense and a suspension for the second.
Similarly, whatever management’s views of Fosnight and Hensley’s behavior, neither employee
received so much as a written warning prior to their concerted protected activities.
This general practice of leniency and the past history of application of that practice to
Fosnight and Hensley stands in stark contrast to their subsequent abrupt dismissals. The
Company has utterly failed to present any credible explanation for the transformation of a policy
of forbearance into an attitude of uncompromising strictness even in circumstances where the
handbook counsels moderation through application of progressive disciplinary steps. I conclude
that the only intervening factor that can logically account for the change was the union activity.

21 The handbook lists a class one offense consisting of, “[p]ossession, use, or being under
the influence of alcohol or controlled substances on Frye Electric property or on company time.”
(GC Exh. 2, Handbook, p. 17.)
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In assessing the impact of the Company’s departure from both its written policies and
past practices, it is instructive to compare the facts of this case with those in the Board’s recent
decision in Publix Super Markets, Inc., 347 NLRB No. 124 (2006). That employer discharged
an employee for asserted reasons that included violations of its punctuality rules. The employer
had followed the written requirements of its disciplinary system by issuing the employee oral
and written warnings about punctuality prior to his discharge. Nevertheless, the Board found
unlawful motivation based in part on the fact that the employer’s application of the terms of the
disciplinary rules actually “reflected an atypically, and discriminatorily, strict application of that
policy.” Id., slip op. at 6. Here, the employer has taken it a step beyond. The treatment of
Fosnight and Hensley was not only vastly excessive when compared to past practices, it was
also more draconian than the written disciplinary policy’s provisions. I conclude that it was
driven by unlawful intent.
For all of the foregoing reasons, I find that the employer’s explanations for the
terminations of Fosnight and Hensley are mere pretexts offered to conceal the true reason, the
employees’ participation in protected union activity. When this is found to be the case, the
Board has long held that the Wright Line analysis is properly terminated because it would be
redundant to shift the burden and again examine the employer’s justifications as a defense to a
finding of unlawful conduct. As the Board has explained:
A finding of pretext defeats any attempt by the Respondent to
show that it would have discharged the discriminatees absent
their union activities. This is because where the evidence
establishes that the reasons given for the Respondent’s actions
are pretextual—that is, either false or not in fact relied upon—
the Respondent fails by definition to show that it would have
taken the same action for those reasons, absent the protected
conduct, and thus there is no need to perform the second part
of the Wright Line analysis. [Internal quotation marks and
citations omitted.]
Rood Trucking Co., 342 NLRB 895, 898 (2004).
In addition to its impact on the sequential steps of the analysis, the finding of pretext
relates back to the assessment of the employer’s motivation. This is the case because, “[i]t is
well settled that, where an employer’s stated motive is found to be false, an inference may be
drawn that the true motive is an unlawful one that the employer seeks to conceal.”22 [Citations
omitted.] Key Food, 336 NLRB 111, 114 (2001).
Considering all of the evidence, I have made the following conclusions in applying
Wright Line. I find that Fosnight and Hensley engaged in protected union activities and that
their employer was aware of their participation in those activities. Immediately upon learning of
this union activity, the Company discharged the employees. Based on a variety of factors,
including the timing and abruptness of the adverse action, the simultaneous action taken

22 In the context of the application of a statute that prohibits other forms of employment
discrimination, the Supreme Court has endorsed use of this analytical methodology. Reeves v.
Sanderson Plumbing Products, 530 U.S. 133, 147 (2000) (In an age discrimination case,
“[p]roof that the defendant’s explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination, and it may be quite
persuasive.”)
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against both participants in the union activity, and the shifting and pretextual nature of the
purported rationales for the terminations and their lack of consistency with the Company’s
policies and past practices, I conclude that the discharges of Fosnight and Hensley were
motivated by unlawful animus toward union activities and sympathies. As a result, the employer
has violated Section 8(a)(1) and (3) of the Act.
2. The interrogation of Fosnight
The remaining unfair labor practice charge concerns the interrogation of Fosnight by
Miers on February 27.23 It will be recalled that, on that day, shortly after Wells told him that he
was discharged, Fosnight telephoned Miers. He asked Miers about his termination and Miers
responded by telling Fosnight that “he had only learned about [it] minutes previous to it and then
asked me what was this about biding my time ‘till the union called.”24 (Tr. 136.) The General
Counsel contends that Miers’ query to Fosnight about his involvement with the Union
constituted an unlawful interrogation in violation of Section 8(a)(1) of the Act.
Preliminarily, I note that Miers posed his question to Fosnight shortly after Wells had
discharged him from the Company’s employ. Counsel for the Company argues that, “[b]ecause
Fosnight was no longer an employee at the time of the conversation . . . Miers’ interest in
Fosnight’s activities could not and did not interfere with Fosnight’s rights.” (R. Br., p. 4.) Since I
have found that the Company’s discharge of Fosnight was unlawful, it can hardly be raised as a
defense to the interrogation charge. In any event, even if the discharge were found to be lawful,
the Act’s protections have long been held to extend to former employees. In Briggs Mfg. Co.,
75 NLRB 569, 571 (1947), the Board noted that the statutory definition of “employee” was broad
enough to cover “former employees of a particular employer.” See also Little Rock Crate &
Basket Co., 227 NLRB 1406 (1977), and Town & Country Electric, 309 NLRB 1250, 1255
(1992), enf. 106 F.3d 816 (8th Cir. 1997).25 As a result, whatever Fosnight’s precise status at
the moment of the conversation, he fell within the Act’s ambit of protection as an employee.
It is evident that the Act does not prohibit all discussions between employers and
workers regarding labor unions. Each situation must be scrutinized by application of the
Board’s analytical criteria as set forth in the leading case of Rossmore House.26 This
framework for analysis was usefully summarized by the Board as follows:
The Board applies a totality of circumstances test to determine
whether the questioning of an employee would reasonably tend

23 The complaint alleges that Miers interrogated “employees” in the plural. (GC Exh. 1(e),
par. 5.) Both at trial and in his brief, counsel for the General Counsel confirmed that there is
actually only one interrogation at issue, the exchange between Miers and Fosnight on February
27. (Tr. 10 and GC Br., p. 21.)
24 Miers admitted that the phone conversation took place but denied making any mention of
the Union. For the reasons discussed earlier in this decision, I credit Fosnight’s account.
25 In an earlier phase of the Town & Country litigation, the Supreme Court, in a unanimous
decision, approved the Board’s use of a broad definition of the term “employee” in finding that
employees of a labor union that seek to apply for work with another employer for purposes of
organizing that employer’s work force fall within the statutory definition. NLRB v. Town &
Country Electric, 516 U.S. 85, 91 (1995).
26 269 NLRB 1176, 1177 (1984), enf. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). The Board continues to apply this test. See Sproule Construction Co., 350 NLRB
No. 65, slip op. at fn. 2 (2007).
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to coerce that employee in the exercise of Section 7 rights, thus
constituting unlawful interrogation . . . [W]hen analyzing alleged
interrogations the Board will consider, inter alia, factors that were
first set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964).
Those factors are: (1) The background, i.e., is there a history of
employer hostility and discrimination? (2) The nature of the
information sought, e.g., did the interrogator appear to be seeking
information on which to base taking action against individual
employees? (3) The identity of the questioner, i.e., how high was
the interrogator in the company hierarchy? (4) The place and
method of interrogation, e.g., was the employee called from work
to the boss’s office? Was there an atmosphere of unnatural
formality? (5) The truthfulness of the reply. These and other
relevant factors are not to be mechanically applied in each case.
They serve as a useful starting point for an assessment of the
totality of circumstances. [Some citations and internal quotation
marks omitted.]
Field Hotel Associates, LP, 348 NLRB No. 1, slip op. at 4 (2006).
As is often the case, some of the Bourne factors support one side in this litigation, while
others favor the opposing parties. In particular, the place and method of interrogation support
the Company’s defense. The conversation was initiated by Fosnight and took place over the
telephone and was informal in nature. Indeed, Miers testified that Fosnight’s call reached him
while he was at a pub having a cocktail with a friend. In addition, the factor regarding the
truthfulness of an employee’s response to questioning does not favor the General Counsel’s
position. There is nothing to suggest that Fosnight felt any need or desire to dissemble.
Instead, he simply avoided making any direct response to Miers’ query.
While these considerations support the lawfulness of the conversation, the remaining
factors strongly favor a finding of unlawful coercion. In particular, the background context of the
conversation is compelling evidence of a violation. Fosnight had just been discriminatorily
discharged for union activity. He was asking Miers for an explanation. Choosing this precise
moment to raise the union issue with Fosnight sent a potent and toxic message linking
Fosnight’s loss of employment directly to his involvement with the Union. I conclude that the
choice of this context by Miers was an intentional and effective method of intimidation.27
In addition to the background, the nature of the information being sought supports a
finding of illegality. By asking Fosnight whether he was biding his time waiting for membership
in the Union, Fosnight was seeking specific information about an employee’s protected
activities. As the Board has explained, this sort of “pointed attempt to ascertain the extent of the
employee[’s] union activities” is unlawful. SAIA Motor Freight, Inc., 334 NLRB 979, 980 (2001).
Finally, the identity of the questioner is a factor that supports the General Counsel’s

27 In his brief, counsel for the Company asserts that Miers’ question could not have
intimidated Fosnight since it did not seek information about his “attitudes, membership, or
activities,” but only involved an inquiry into “his poor work ethic, and whether it was the result of
Fosnight ‘biding his time’ and waiting for the union.” (R. Br., p. 4.) In my view, this only serves
to underscore the unlawful nature of the interrogation since it demonstrates that the employer’s
dissatisfaction with Fosnight was directly linked to his involvement with the Union.
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position. Miers was described as the “[s]econd-in-command” of the Company. (Tr. 197.) He
was clearly an important corporate official whose views would be seen as authoritative
expressions of the employer’s opinions.
Taking into account the totality of the circumstances, I conclude that Miers violated the
Act by asking Fosnight about the extent and purpose of his union activities less than an hour
after the Company had effectuated its unlawful decision to terminate Fosnight’s employment.
By linking the response to Fosnight’s inquiry about this decision directly to his union activities,
Miers engaged in the sort of coercion prohibited by Section 8(a)(1). See Michigan Road
Maintenance Co., 344 NLRB 617, 617-618 (2005). (Inquiry about union activity that drew an
“obvious connection” between the question and another contemporaneous unfair labor practice
constituted an unlawful interrogation.)
Conclusions of Law
1. By discriminatorily discharging its employees, Thomas Fosnight and Dennis Hensley,
the Company has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
2. By coercively interrogating Thomas Fosnight about his protected union activities, the
Company has also violated Section 8(a)(1) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I will also recommend that the Company be required to post a
notice in the usual manner.
With regard to affirmative relief, the Company having discriminatorily discharged its
employees, it should be ordered to offer them reinstatement and make them whole for any loss
of earnings and other benefits, computed on a quarterly basis from the date of termination to the
date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
With regard to the manner of computing interest, at the commencement of the trial of this
case and in his brief, counsel for the General Counsel sought a recommended order that would
constitute a departure from existing Board precedent. (Tr. 9-10 and GC Br., pp. 9-21.) As
counsel put it, “[t]he current practice of awarding only simple interest on backpay and other
monetary awards should be replaced with the practice of compounding interest.” (GC Br., p. 9.)
While I agree that it is clearly appropriate for the General Counsel to notify a respondent
at the earliest opportunity that he is seeking a new form of relief, I conclude that it would be
inappropriate for me to entertain this recommendation. Certainly, the assigned administrative
law judge has the authority to recommend a full range of remedial options. I have not hesitated
to recommend extraordinary measures when I have concluded that they are required. For
example, see Metropolitan Regional Council of Carpenters (Adams-Bickel Assoc.), 2007 WL
1629737 (June 1, 2007) (broad cease-and-desist order), and American Directional Boring, Inc.,
2007 WL 2430006 (August 23, 2007) (bargaining order). However, what distinguishes those
cases from the present request is that the forms of relief that I recommended had previously
been authorized by the Board when prerequisite conditions existed that justified their use. The
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issue in those cases was merely whether the necessary conditions had arisen. In this case, the
General Counsel seeks relief that has never been authorized by the Board.
In Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984), the Supreme Court noted that
Section 10(c) of the Act vested in the Board, “the primary responsibility and broad discretion to
devise remedies that effectuate the policies of the Act.” That authority extends to questions
regarding the remedial issue of interest on any amounts owed by a wrongdoer. NLRB v. G & T
Terminal Packaging Co., 246 F.3d 103, 127 (2d Cir. 2001).
Consideration of a change in the manner of computing interest as proposed by the
General Counsel requires the analysis and resolution of a variety of policy questions. For
example, in its leading case of New Horizons for the Retarded, supra, the Board cited policy
issues involved in determining the methods of calculating interest including the need to
“encourage timely compliance with Board orders, discourage commission of unfair labor
practices, and more fully compensate discriminatees for their economic losses.” 283 NLRB at
1173. It also cited the factor of ease of administration of the remedy. It is apparent that these
matters fall uniquely within the competence of the Board as the entity that possesses the overall
knowledge, experience, and responsibility in this field.
In addition, I note that individual administrative law judges may only act within the
confines of the cases assigned to their dockets. As a result, it would be inappropriate for me to
issue an order imposing a new form of remedy. For example, should the parties in this case
decide not to file exceptions to my decision, this employer would be responsible for providing a
remedy that is more costly than any other employer who has engaged in the same forms of
misconduct.28 Furthermore, I am not in a position to address such nationwide concerns as the
applicability of any new measure to other pending cases in varying stages of litigation. In this
regard, the situation bears some resemblance to the problem that arises when courts of appeals
reach different conclusions regarding the Board’s policy judgments. As the Board has reminded
administrative law judges in that context,
it remains the [judge’s] duty to apply established Board
precedent which the Supreme Court has not reversed.
Only by such recognition of the legal authority of Board
precedent, will a uniform and orderly administration of a
national act, such as the National Labor Relations Act, be
achieved. [Citations omitted.]
Pathmark Stores, Inc., 342 NLRB 378 at fn. 1 (2004). I conclude that the Board would apply the
same reasoning to this situation. Were I to take individual action, it would disrupt the uniform
and orderly administration of national labor law policy. See also Southern Mail, Inc., 345 NLRB
No. 43, slip op. at fn. 24 (2005) (Board deletes judge’s remedial provision for payment of extra
taxes resulting from lump sum backpay award as “inconsistent with current precedent.”). For
these reasons, I decline to recommend any alteration to the Board’s current manner of awarding
interest.29
On these findings of fact and conclusions of law and on the entire record, I issue the

28 By contrast, in the event that exceptions are not filed, my current recommended remedy
will conform to the remedies imposed in all other cases.
29 Nothing in this discussion should be taken as suggesting anything regarding my views as
to the merits of the General Counsel’s request.
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following recommended30
ORDER
The Respondent, Frye Electric, Inc., Avon, Indiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against Thomas Fosnight, Dennis Hensley,
or any other of its employees for supporting, engaging in activities on behalf of, or seeking
assistance from, the International Brotherhood of Electrical Workers, Local 481, AFL-CIO or any
other labor organization.
(b) Coercively interrogating Thomas Fosnight or any other of its employees regarding
their protected union activities.
(c) In any like or related manner restraining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Thomas Fosnight and
Dennis Hensley full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Thomas Fosnight and Dennis Hensley whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them, in the manner set forth in
the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharges will not be used against them in any
way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Avon, Indiana,
copies of the attached notice marked “Appendix.”31 Copies of the notice, on forms provided by

30 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
31 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
Continued
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the Regional Director for Region 25, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
February 27, 2007.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. October 19, 2007
____________________
Paul Buxbaum
Administrative Law Judge
_________________________
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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Indianapolis, IN
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against Thomas Fosnight, Dennis Hensley,
or any of our other employees for supporting the International Brotherhood of Electrical
Workers, Local 481, AFL-CIO or any other union.
WE WILL NOT coercively question Thomas Fosnight or any of our other employees about their
union support or activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed by Federal labor law.
WE WILL, within 14 days from the date of this Order, offer Thomas Fosnight and Dennis
Hensley full reinstatement to their former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Thomas Fosnight and Dennis Hensley whole for any loss of earnings and other
benefits resulting from their discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges of Thomas Fosnight and Dennis Hensley, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has been done and that the discharges will not
be used against them in any way.
FRYE ELECTRIC, INC.
(Employer)
Dated By
(Representative) (Title)
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Indianapolis, IN
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Federal Building, Room 238
Indianapolis, Indiana 46204-1577
Hours: 8:30 a.m. to 5 p.m.
317-226-7382.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 317-226-7413.