Guild, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1994

313 N.L.R.B. 1085 (N.L.R.B. 1994)

1085
313 NLRB No. 184
GUILD, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In the last sentence of sec. IV,B,1 of his decision, the judge inad-
vertently refers to employee Neal rather than Foreman Wade.
1 The charges were filed on September 3 and 4, 1992. The com-
plaint issued on October 14.
Guild, Inc. and International Brotherhood of Elec-
trical Workers, Local Union 520, a/w Inter-
national Brotherhood of Electrical Workers.
Cases 16–CA–15742–1 and 16–CA–15742–2
April 14, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On September 3, 1993, Administrative Law Judge
Richard J. Boyce issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Guild, Inc., Dallas, Texas,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Elizabeth Kilpatrick, Esq., for the General Counsel.
Stephen N. Wakefield, Esq., of Dallas, Texas, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. I heard
this matter in Austin, Texas, on March 11, 1993.
The consolidated complaint arose from charges filed by
International Brotherhood of Electrical Workers, Local Union
520, a/w International Brotherhood of Electrical Workers (the
Union).1
The complaint alleges that Guild, Inc. (Respondent) vio-
lated Section 8(a)(3) and (1) of the National Labor Relations
Act (the Act) on about September 2, 1992, by discharging
employees Marcos Abrego and Ronald Neal. The complaint
alleges that Respondent, by James Wade, an alleged super-
visor, further violated Section 8(a)(1) in these respects:
(a) On about August 25, 1992, by interrogating a job ap-
plicant ‘‘concerning his union membership activities and de-
sires’’; and,
(b) On about August 31, 1992, by threatening an employee
that Respondent ‘‘would not employ members of the Union
on its jobsite’’ and would ‘‘close its operation . . . and re-
open under a new company name with new employees’’ if
the existing employees ‘‘joined or supported the Union’’;
and by interrogating an employee ‘‘concerning their union
membership activities and desires.’’
I. JURISDICTION/LABOR ORGANIZATION
Respondent is an electrical contractor headquartered in
Dallas, Texas. The complaint alleges, the answer admits, and
I find that it is an employer engaged in and affecting com-
merce within Section 2(2), (6), and (7) of the Act.
The pleadings also establish and I find that the Union is
a labor organization within Section 2(5) of the Act.
II. OVERVIEW
Respondent is the electrical subcontractor in the renovation
of the William P. Clements State Office Building in Austin.
Work began in August 1992, and is projected to last from
18 months to 2 years. By August 31, Respondent’s crew had
grown to seven electricians and helpers, including the two
whose discharges are in issue, Abrego and Neal. Abrego
began on August 25; Neal, on August 26. Both were dis-
charged September 2. Both are long-term union members.
Respondent is nonunion.
Respondent’s ranking person regularly onsite is James
Wade. The complaint alleges and the answer denies that he
is a statutory supervisor. Wade’s immediate superior is James
Elliott, corporate vice president. Elliott depicted himself as
‘‘operations manager and in charge of all field operations
and, basically, the whole company.’’
The general contractor on the project is Dal-Mac Con-
struction Company. Its ranking person regularly onsite is
Craig Moyer, project superintendent. Moyer reports to James
Evans, Dal-Mac’s systemwide project manager.
III. THE ALLEGED VERBAL MISCONDUCT
A. The Status of James Wade
1. Evidence
Respondent hired Wade in April 1992. In August, it trans-
ferred him to Austin from a project nearing completion in
Ardmore, Oklahoma. All others comprising Respondent’s
Austin crew were new hires.
A document entitled ‘‘Employee’s Individual Earnings
Record,’’ apparently prepared coincident with Wade’s hire,
lists his ‘‘occupation’’ as ‘‘Elec. Supt.’’ That notwithstand-
ing, Elliott termed him Respondent’s ‘‘lead journeyman’’ on
the Ardmore and Austin projects.
Elliott elaborated that Wade is . . .
a working foreman, working journeyman, and he does
layout, organizes the men, and asks other journeymen
to go do other functions of a journeyman electrician.
Elliott described layout as taking . . .
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Similarly, Abrego testified that Wade ‘‘was out there working
. . . as a member of the crew.’’
3 Abrego added that Sims worked with the tools ‘‘very rarely’’;
that ‘‘he mostly walked around with a blueprint in his hand, just tell-
ing us what to do and stuff.’’
4 The complaint, as amended during the hearing, alleges that Sims
was an agent of Respondent as defined by Sec. 2(13) of the Act.
The General Counsel attributes no misconduct to him, and I see no
need to make a finding one way or the other.
an engineered set of drawings, and then you come up
with a list of material or a layout that other journeymen
can follow, that would make all the floors similar, that
would improve production. . . .
Elliott added that any experienced journeyman can do lay-
out.
Wade likewise called himself the lead journeyman on the
Austin job. He testified that a ‘‘majority’’ of his time is de-
voted the ‘‘installation of electrical conduits and wiring, pan-
els, stuff like that’’—‘‘that and laying out.’’2 Echoing Elliott,
Wade averred that journeyman electricians ‘‘commonly’’ do
layout. He described layout thus:
I will draw out the conduit routing and stuff on the
drawings, and then take a couple of guys, and we will
go over there, and I will show them how we want to
run it and stuff like that, tell them what circuits to drop
off where.
Both Abrego and Neal referred to Phillip Sims, inarguably
below Wade, as their foreman. Abrego expanded:
[W]e always took our orders from Phillip. He . . . told
us what needed to be done, laid us out as far as what
James [Wade] wanted us to do next.3
Neal likewise testified that Sims ‘‘was giving the orders
on the job’’; that Wade ‘‘very seldom’’ communicated di-
rectly with him or the other crew members.4
Sims did not testify.
Dal-Mac’s Evans testified that, while both he and his
project superintendent, Moyer, have ‘‘some interface with’’
Elliott, Moyer deals with Wade ‘‘on a day-to-day basis.’’ To
like effect, Wade testified that Moyer ‘‘would normally come
to’’ him if he had complaints about Respondent’s employees.
Evans added: ‘‘My understanding he [Wade] is a foreman
and he is in charge of on-site production.’’
Moyer did not testify.
Wade undeniably participated in the hire of the Austin
crew. Respondent would have it, even so, that he neither
possessed nor exercised meaningful authority in that regard.
Wade testified that the hiring procedure consisted of the ap-
plicants’ ‘‘fill[ing] out the necessary paperwork, and . . . El-
liott would go over it and decide whether or not to hire
them.’’ When Elliott was not in Austin, Wade testified, ‘‘he
would tell me that they are hired and ask me to convey the
message to them.’’
Wade further testified, with specific reference to the hire
of Abrego:
[Abrego] filled out the paperwork, and I helped him
with some of it. He had a few questions on some of
the different lines he was supposed to fill out, and I
helped him with it, and then I believe he talked to
James Elliott, and James hired him.
Abrego disagreed, testifying that Wade interviewed him on
August 24, instructing him to begin work the next day; that
Wade ‘‘did the hiring.’’ Abrego generalized, consistent with
Evans, that Wade was Respondent’s ‘‘main man in charge’’
on the project.
Elliott, too, contradicted Wade. He testified that Wade
‘‘put Abrego and Sims to work’’ without Elliott’s first seeing
them. Elliott contended, however, that he later interviewed
them and ratified their hire. Elliott’s testimony:
I had some business to take care of about getting li-
censes in order, . . . and I had left and told Mr. Wade
to . . . put anybody to work that was willing to work,
and that I would talk to them when I got back. . . .
I didn’t tell [Wade] to hire them. . . . I told Mr. Wade
to allow anybody that wanted to work to come to work,
and I would talk to them.
Elliott continued:
I interviewed them [Abrego and Sims] that day, I be-
lieve. . . . I asked about their experience and just
looked at their application, and told them that there was
a mistake in what they thought they were going to
make.
The ‘‘mistake’’ to which Elliott referred was Wade’s tell-
ing Abrego and presumably all journeymen their hourly pay
would be $11. This being a ‘‘prevailing-wage’’ project,
$16.20 was the mandated minimum journeyman rate. Elliott
testified earlier that he ‘‘took Mr. Sims and Mr. Abrego over
to the side and told them that their rate . . . would be
more.’’ Elliott to the contrary, Abrego testified that Wade
gave him the ‘‘good news.’’
Wade testified that Respondent hired Neal ‘‘in the same
manner as Mr. Abrego’’; that this was ‘‘pretty much the
same pattern and practice’’ used to hire all the crew. Wade
particularized concerning Neal:
[H]e asked me what the pay rate was, and I told him,
and he wanted more, and I think me and James [Elliott]
had a conversation about it. I told him that Neal wanted
some more money, and James said that was okay, and
I said, ‘‘I will go ahead and pay him that.’’
Wade testified, the word suggested by Respondent’s coun-
sel, that Elliott ‘‘okayed’’ Neal’s hire.
Neal recounted that Wade interviewed him, and that he
was hired ‘‘within ten minutes’’ after he filled out his appli-
cation. Neal enlarged:
I filled out the application, and then I gave [Wade] the
application, and he reviewed it, and he came back and
said, ‘‘You can report to work tomorrow at 7:00
o’clock,’’ which would have been the 26th. . . . He
went to talk to someone else. I don’t know who he
talked to. . . . [H]e went in the office and shut the
door, and he came back out and he said, ‘‘You can re-
port to work tomorrow at 7:00 o’clock.’’
1087GUILD, INC.
5 Elliott testified, simply: ‘‘I interviewed Mr. Neal.’’
6 Asked by Respondent’s counsel if it was ‘‘unusual’’ for
leadmen—i.e., nonsupervisors—to attend one of these meetings,
Evans replied: ‘‘No. That is usually standard.’’ Although called by
the General Counsel, Evans struck me as receptive to suggestion
during cross-examination by Respondent’s counsel.
7 Elliott also testified that he visits a supercollider project in
Waxahachie, Texas, ‘‘about every two weeks’’; that he visited the
Ardmore site ‘‘once a week, probably,’’ at relevant times; and that
he spends ‘‘three, four days a week’’ in Dallas.
8 Wade normally resides in Dallas.
9 Wade’s Individual Earnings Record discloses that his hourly
wage, when hired in April, was $17.
10 Quoting from Westinghouse Electric v. NLRB, 424 F.2d 1151,
1158 (7th Cir. 1970).
11 Neal’s testimony in this regard was persuasive, and Wade ad-
mittedly discussed pay with Neal. Elliott’s testimony that he inter-
viewed Neal was devoid of substantiating detail and unconvincing.
Neal continued that, when he refused Wade’s initial wage
offer of $8, Wade ‘‘went off and talked to someone else,’’
then returned to say, ‘‘We can probably give you $10 an
hour.’’
Elliott assertedly interviewed Neal, but offered no substan-
tiating details.5 Neal insisted that he ‘‘didn’t interview with
Mr. Elliott’’—‘‘I asked him about parking situations after the
interview, but I did not have any interview with him, per se,
one on one.’’
Although Wade signs and dispenses termination notices on
the Austin project, Respondent maintains that he has no
voice in the underlying decisions. Wade testified regarding
the terminations of Abrego and Neal that Elliott ‘‘told [him]
who he had selected’’ without first inviting his opinion, and
that he does not know why Elliott chose them.
In addition, Wade denied having authority to assign over-
time (‘‘I have to go through James Elliott on that’’), impose
discipline, evaluate employees, or recommend raises. Wade
admitted that he can grant employees permission to leave the
job, but only if Elliott is not available.
On September 21, Dal-Mac issued a ‘‘Subcontractor Field
Change Authorization’’ authorizing Respondent to ‘‘work en-
tire crew on overtime to get power to lights on 9–10–11
floors.’’ Wade signed for Respondent beneath a clause stat-
ing:
We hereby agree to furnish labor and materials—com-
plete in accordance with the above specifications and
accept this field change authorization as a modification
to our original agreement and will be performed subject
to all the same terms and conditions as contained in the
original agreement.
Again led by Respondent’s counsel, Wade testified that he
first discussed ‘‘this matter’’ with Elliott; that Elliott ‘‘au-
thorized [him] to execute it on his behalf.’’
Wade represents Respondent at biweekly subcontractors’
meetings also attended by representatives of Dal-Mac and
other subcontractors. Dal-Mac’s Evans testified that these
meetings are to ‘‘review [the] status of production on the
project.’’6
Wade testified that Elliott visits the Austin project from
Dallas ‘‘once, twice, a week at least,’’ and is there ‘‘all
day.’’ In contrast, Elliott testified that he visits that project
‘‘every two weeks . . . when they are actively working,’’
and ‘‘about once a month’’ otherwise. Austin is about 190
miles from Dallas.7
Wade also testified that he speaks with Elliott by tele-
phone ‘‘three times a day,’’ on average, when Elliott is not
onsite. Asked who initiates these calls, Wade testified:
‘‘Sometimes he would call or page me; sometimes I would
call him. I would say 50–50.’’ Wade testified that some of
the calls are routine, and some are prompted by incidents on
the job.
Respondent pays Wade’s room and board in Austin.8 He
is hourly paid and receives an overtime premium. The record
leaves to conjecture his wage on the Austin project.9
2. Discussion
Section 2(11) of the Act states:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
Possession of any one of the stated indicia confers super-
visory status. Phelps Community Medical Center, 295 NLRB
486, 489 (1989). The General Counsel, as the party contend-
ing that Wade is a supervisor, bears the burden of proof.
Printing Pressmen’s Local 55 (Birmingham News), 300
NLRB 1 (1990). ‘‘[W]henever the evidence is in conflict or
otherwise inconclusive on particular indicia,’’ the Board
‘‘will find that supervisory status has not been established
. . . on the basis of those indicia.’’ Phelps Community Medi-
cal Center, supra at 295 NLRB 490. And, the Board
has a duty to employees to be alert not to construe su-
pervisory status too broadly because the employee who
is deemed a supervisor is denied employee rights which
the Act is intended to protect.
Id. at 492.10
I conclude that the General Counsel has satisfied her bur-
den. My reasons are these:
(a) Elliott admitted that Wade ‘‘put Abrego and Sims to
work’’ without Elliott’s seeing them. Elliott’s testimony that
he told Wade ‘‘to allow anybody that wanted to work to
come to work,’’ the implication being that Wade exercised
no independent judgment in the matter, strains credulity be-
yond the breaking point.
(b) Crediting Neal, only Wade interviewed him.11
(c) Beyond participating in the hiring process, Wade signs
and dispenses termination slips. His testimony that he is only
a conduit in these respects was not convincing.
(d) In addition to the evidence showing that Wade satisfies
some of the statutory elements denoting supervisory status,
the record contains abundant ‘‘secondary criteria’’ consistent
with his being a supervisor. Among them: (1) Of those com-
prising Respondent’s Austin crew, it transferred only Wade
from another project; (2) Respondent pays Wade’s room and
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 I reject as self-serving and improbable Respondent’s contention
that Wade serves as a mere cipher in the several respects in which
he represents it on the project.
13 Elliott to the contrary, I credit Abrego that Wade in fact gave
him the ‘‘good news.’’
14 See also Willmar Electric Service, 303 NLRB 245, 251–252
(1991); Lassen Community Hospital, 278 NLRB 370, 374 (1986).
15 See also Churchill’s Supermarkets, 285 NLRB 138, 139 (1987);
Structural Finishing, 284 NLRB 981, 982 (1987); Establishment In-
dustries, 284 NLRB 121, 123–124 (1987).
16 Neal testified, however, that he ‘‘was basically doing journey-
man electrician’s work’’—‘‘I was installing the fixtures and also
coming back behind and wiring the fixture up to the system.’’ He
testified that he is a licensed journeyman.
board in Austin—a considerable benefit doubtless not given
crewmembers generally; (3) crediting Elliott, Elliott visits the
Austin jobsite at most ‘‘every two weeks,’’ meaning the
crew would be without onsite supervision for prohibitively
extended periods were Wade not a supervisor; (4) Wade rep-
resents Respondent in ‘‘day-to-day’’ dealings with Dal-Mac’s
Moyer; (5) Wade signs change authorizations binding on Re-
spondent; and (6) Wade attends the biweekly subcontractors’
meetings on Respondent’s behalf.12
(e) The testimony of Elliott and Wade concerning Wade’s
authority struck me as contrived and poorly rehearsed under-
statement. Among the telltale signs: (1) Both testified that
Wade was a lead journeyman throughout his tenure, whereas
his Individual Earnings Record indicates that Respondent
classified him as an electrical superintendent when hired; (2)
as against Wade’s testimony that Abrego ‘‘talked to James
Elliott, and James hired him,’’ Elliott testified that Wade
‘‘put Abrego . . . to work’’ without Elliott’s seeing him; (3)
while Wade would have it that Elliott visits Austin ‘‘once,
twice, a week at least,’’ Elliott testified that he visits ‘‘every
two weeks . . . when they are actively working’’; and (4)
Elliott testified at one point that he told Abrego and Sims
about the ‘‘mistake’’ in their pay while interviewing them,
and at another that he ‘‘took [them] over to the side and told
them.’’13
B. The Alleged Interrogation
1. Evidence
Neal testified that, while being interviewed by Wade on
August 25, Wade asked him if he was ‘‘affiliated with a
union’’; and that, rather than risk rejection, he said he was
not. Neal denied—‘‘No, I did not’’—asking this question.
2. Discussion
Neal impressed me, by both his demeanor and the content
of his testimony, as a genuine and capable witness. Wade,
on the other hand, seemed more concerned with outcome
than with honoring the oath. I therefore credit Neal that
Wade interrogated him as described.
So doing, I conclude that Wade violated Section 8(a)(1) as
alleged. Quoting from Gilberton Coal Co., 291 NLRB 344,
348 (1988):
[Q]uestions concerning union preference, in the context
of job application interviews, are inherently coercive
and unlawful, even when the applicant is hired.14
C. The Alleged Threat and Interrogation
1. Evidence
Ralph Merriweather, a business agent for the Union, met
with Respondent’s employees at the jobsite on Friday, Au-
gust 28, touting representation.
The morning of Monday, August 31, Abrego testified
Wade remarked to him that he ‘‘understood’’ the employees
had had ‘‘a visitor on Friday.’’ Abrego was working on the
ninth floor at the time, as he recalled, and Wade then asked
him to ‘‘go downstairs with him to unload some material’’
from a truck. During their ensuing elevator ride, Abrego tes-
tified, Wade said Respondent ‘‘had hired union help on a
previous job that they had done here in Austin last year, and
they weren’t worth a fuck.’’
Abrego’s recital went on:
I showed him my pin and I told him I was a union
member, myself, and he just turned around and said,
‘‘No shit.’’ Then . . . he proceeded to say, ‘‘Well, if
the Union tries to come over here and organize this job,
we will just shut it down and then come back under a
new company name and hire all new people.
Abrego testified that he said nothing more on the subject,
and they ‘‘proceeded to unload the material.’’
Wade denied saying Respondent ‘‘would close down and
come back under another name’’ if it experienced ‘‘any kind
of union problems.’’ He also denied saying unions ‘‘weren’t
worth a fuck.’’ Wade did not otherwise address this incident.
2. Discussion
Abrego told his story with manifest sincerity and in con-
vincing detail. Wade’s denials, lawyer-led and mechanical,
suffered in comparison; and, as I have indicated, his credibil-
ity generally did not impress me. I consequently credit
Abrego’s rendition.
I again conclude that Wade violated Section 8(a)(1) as al-
leged. His saying Respondent would ‘‘just shut it down and
then come back under a new company name and hire all new
people’’ should the Union try to organize was a classic viola-
tion. And his prefatory remark—that he ‘‘understood’’ the
employees had had ‘‘a visitor on Friday’’—doubtless was in-
tended to draw Abrego out (as indeed it did) concerning his
union sympathies, thus was interrogative in purport if not in
form, and constituted an additional violation given the blatant
coerciveness of his ensuing comments. Wykle Research, 290
NLRB 1062, 1069 (1988).15
IV. THE DISCHARGES
A. Evidence
As noted, Abrego began on August 25 and Neal on Au-
gust 26. Respondent hired Abrego as a journeyman elec-
trician, and Neal as a helper.16 Respondent worked them as
a team for the most part.
Abrego informed the Union before reporting that he had
gotten the job, and that his hourly pay would be $11. Busi-
ness Agent Merriweather told him it was a ‘‘prevailing-wage
job,’’ that he should be getting $16.20 an hour, and that the
Union would ‘‘make a call . . . to get that wage enforced.’’
1089GUILD, INC.
17 Case 16–RC–9534. I take official notice of the petition, which
is not in evidence.
18 Later on August 31, Abrego credibly testified, Sims ‘‘was con-
gratulating’’ him—presumably sarcastically—‘‘for being in the
Union.’’ Abrego countered that ‘‘the Union had got us that prevail-
ing wage on the job’’—that it ‘‘didn’t just do it for’’ Abrego, it
‘‘did it for all of us’’; and Sims shot back that the Union ‘‘ain’t
never done shit for’’ him and ‘‘walked off.’’
19 Kruse testified that he made this visit in the ‘‘last part of Au-
gust’’—‘‘around’’ August 30 or 31. August 30 being a Sunday, I
find that it occurred on August 31.
20 Identical letters dated September 8 and 11, from Dal-Mac’s
Evans to Respondent’s Elliott, are in evidence. They state in part:
‘‘As of 11:30 A.M. on 9–1–92, all use of M.C. cable in walls is
on hold. This area is on hold for revised pricing, using flexible con-
duit. We will inform you of final decision as soon as possible.’’ El-
liott ventured this reason for the second letter: ‘‘I may have called
him [Evans] and asked him to send it again, because I didn’t know
if I had the letter back to my office yet. It didn’t get to me, and
so he probably typed another one up and sent it to me.’’
Evans explained the letters’ belatedness this way:
After . . . approximately two weeks . . . I sent a letter to them,
putting them on formal hold at that time, because after a period
of two weeks I felt like it was necessary to document to them
and to the State . . . the length of duration that they had us on
hold, because . . . we still had expenditures of overheard that
we wanted to make sure the state understood could start impact-
ing the general conditions to the job.
The record does not disclose if such a call in fact tran-
spired. Abrego credibly testified that, when he reported for
work on August 25, Wade told him he had ‘‘good news and
bad news’’—that he would receive $16.20, but that he would
be ‘‘on a five-day probation period.’’ Wade added, as
Abrego convincingly recalled, that Abrego probably had
‘‘nothing to worry about since [Respondent] was having
trouble finding people to man the job’’; and that the project
would entail ‘‘about two years’ of work.’’
As previously mentioned, the Union’s business agent,
Merriweather, spoke to the employees at the jobsite on Fri-
day, August 28. One of the crew, Phillip Sims, tape-recorded
the meeting. Abrego and Neal credibly testified that Sims
said that he did this so Wade and Elliott, who were not on-
site that day, could listen.
Elliott testified that he learned about the organizational
ferment ‘‘the day . . . Mr. Merriweather came on the job.’’
He explained:
Craig Moyer from Dal-Mac . . . called me and told me
that my men were gathering in the break room for a
meeting. . . . Probably after the meeting, or maybe
during the meeting.
Elliott later testified:
After the meeting was over, Craig Moyer called me and
told me that there was a meeting. . . . He was just
wanting me to know that my men . . . were actively
not working. They were taking an extended break and
having a meeting with a union organizer, and that his
concerns were safety on the job for people not—people
shouldn’t be on the job should check in to Dal-Mac’s
office first, and always observe safety rules.
Moyer also said, according to Elliott, that he had a tape
recording of the meeting. Elliott testified that Moyer im-
parted ‘‘the impression that he gave the recorder to Mr.
Sims, and Mr. Sims recorded it for him’’; and that Moyer
‘‘just wanted to let [Elliott] know that he had a tape, that
[Elliott] should listen to it.’’
Wade testified that did not learn about the organizing ac-
tivity or the tape until Monday, August 31, when Moyer
‘‘told [him] that an organizer had been out on the job, and
he taped it.’’ Wade denied—‘‘not at all’’—that he and Sims
discussed Merriweather’s visit.
As noted, neither Moyer nor Sims testified.
August 31 saw several noteworthy developments:
(a) Merriweather, on behalf of the Union, petitioned the
NLRB for an election among the electricians employed by
Respondent within the Union’s jurisdiction.17
(b) Abrego wore a union pin and Neal a union hat to work
that day. Neither had done this before, and the record con-
tains no evidence that other crewmembers followed suit.
(c) As earlier described, Wade induced Abrego to declare
his union membership, then announced, unlawfully, that Re-
spondent would ‘‘just shut it down and then come back
under a new company name and hire all new people’’ should
the Union ‘‘organize this job.’’18
(d) An inspector for the State, Delwood (Buddy) Kruse,
visited the site.19 Although the job specifications authorized
Respondent to use MC cable, that was a departure from past
practice and Kruse told Respondent and Dal-Mac that he did
not think MC cable was ‘‘what the State had in mind.’’ The
project manager for the State, John Patterson, in turn asked
Dal-Mac that same day to submit a proposed change order
specifying flexible metal conduit. Respondent accordingly
stopped using the MC cable on September 1.20
The morning of the next day, September 1, Wade directed
Abrego to redo some work. Abrego’s account:
He . . . told me that some rings that I had cut in a
sheetrock wall were off, that the sheetrockers were
complaining that they were all crooked. So he in-
structed me to go back and fix them. So I went back
and I started measuring them, and I was measuring
them all the way down, and this was like 40 MP rings
that I cut in; and after about halfway checking through
them I found out that the most they were off were a
sixteenth of an inch.
And those MP rings have a little bit of play in them
when you cut them inside the sheetrock wall, to where
they are adjustable . . . about half an inch. And I just
went ahead and fixed them up, and I checked all the
rest of them, and I went back and told them that they
were okay, and [Wade] just made the statement that the
sheetrockers had complained that they were crooked.
Wade testified that Moyer had complained to him ‘‘about
some sloppy work, cutting in some boxes and stuff, that the
plates wouldn’t cover.’’ Wade testified that he could not re-
call discussing this with Elliott. Elliott recalled, on the other
hand, that Wade told him about it—that Abrego ‘‘was cut-
ting items in sheetrock, and they were not straight and
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Elliott testified twice, both before and after Wade. That Wade
told him about the Abrego complaints occurred pre-Wade. Asked
post-Wade how the complaints had come to him, he testified: ‘‘I be-
lieve it came from Craig Moyer . . . and then I probably . . . asked
him to get with Wade and have it checked out.’’ He later averred
that he is not ‘‘absolutely clear’’ who told him.
22 Minutes of a September 10 meeting involving the State’s Patter-
son and Dal-Mac’s Evans and Moyer, among others, include this
passage: ‘‘Electrical wiring situation has been resolved and will no
longer impact schedule.’’
23 Explaining the delay from September 10, Elliott testified: ‘‘We
were down for some additional time due to not having the proper
materials on the job or enough material on the job. We had stopped
purchasing material until we had this problem resolved.’’ Wade and
Dal-Mac’s Evans testified to like effect.
Elliott elsewhere testified, according to the transcript, that the job
was on partial hold until ‘‘around the 16th to the 18th of Novem-
ber.’’ The weight of evidence leaves no doubt that he either
misspoke or the transcript is in error; that he meant to say Septem-
ber.
level.’’21 Wade termed the matter ‘‘really minor’’; Elliott, ‘‘a
minor problem.’’
I note again that Moyer did not testify.
On September 2, Wade gave termination notices to Abrego
and Neal as they were working together on the ninth floor.
Both cited ‘‘lack of work’’ and stated: ‘‘Job is not progress-
ing as planned.’’
Wade told them he was ‘‘sorry,’’ as he recalled, but that
Respondent ‘‘just can’t keep everybody busy.’’ Abrego testi-
fied that Wade also said he ‘‘might be calling [them] back
. . . if work picked up.’’ Neal recalled Wade’s saying the
terminations were ‘‘not for lack of production,’’ but that Re-
spondent had ‘‘run short of work on this particular floor.’’
Neal testified that he reminded Wade of a previous assurance
that ‘‘there was 18 months worth of work here in this build-
ing’’; and that Wade responded, alluding to the matter of the
MC cable: ‘‘There is, but, you know, there has been a hold
on it.’’
Dal-Mac submitted its proposed change order on Septem-
ber 4. The State later decided, however, that this was unnec-
essary; that MC cable was acceptable, after all. This decision
was communicated to Dal-Mac on about September 10.22 El-
liott testified that Respondent resumed full operation
‘‘around the week of the 17th, 18th, of September.’’23
Elliott testified that he decided to reduce crew size because
of the hold concerning the MC cable. He enlarged:
When we were told to stop wiring with MC cable, the
work was not there for the full crew, and we didn’t
know how long it would take to get the problem re-
solved, and we elected to cut the crew back to be more
productive. . . . [W]hen we were put on hold, it was
. . . to the business’s advantage not to have an over-
load of people on the job.
Elliott perhaps was using ‘‘we’’ in the royal or editorial
sense. He testified that he alone selected Abrego and Neal,
and that he ‘‘sent the termination notice[s] to Austin.’’
Wade, as earlier mentioned, testified that Elliott ‘‘told [him]
who he had selected’’ without first inviting his opinion, and
that he not know why Elliott chose Abrego and Neal. Wade,
however, did sign the termination notices.
Elliott initially advanced these grounds for choosing
Abrego and Neal:
I went to the payroll sheets and pulled out the last ap-
prentice hired and the last journeyman hired, and also
I had been contacted . . . that Dal-Mac had complained
about some wiring methods or some installation meth-
ods of Mr. Abrego. And I elected at that time, since
they were working as a pair, to let both of them go.
In fact, Abrego was not the last journeyman hired. Re-
spondent hired him and Sims at the same time.
Elliott later testified that Abrego’s and Neal’s working as
a team was not factor, and that Dal-Mac’s complaints about
Abrego were not ‘‘a real significant factor.’’ He also testified
that he assigned no weight to Neal’s hourly wage ($10, as
against $8.69 for helpers generally and $6.98 for laborers),
only to append:
[I]t may have influenced it some, based just upon eco-
nomics of the job and not knowing how long we would
be in this situation. . . . I think money influences all
of my business decisions.
Elliott continued that no ‘‘single, overriding factor’’ pre-
dominated; that it was ‘‘just a weighted decision.’’
Asked yet again what considerations affected the decision,
Elliott testified:
Mr. Abrego, it was mainly I had already experienced
. . . some problems with him; and, on Mr. Neal, it was
specifically he was the last experienced helper hired at
that rate.
By ‘‘problems,’’ Elliott presumably meant Moyer’s sup-
posed complaint about Abrego, mentioned earlier. Elliott tes-
tified this time (to a leading question from Respondent’s
counsel) that it was ‘‘one of the factors that may have en-
tered’’ his mind in choosing Abrego.
Elliott professedly had no idea that Abrego and Neal were
engaged in union activity. He testified that he ‘‘never
played’’ the tape of the August 28 Merriweather meeting de-
spite Moyer’s urging; indeed, that he did not receive it from
Moyer until the week before the trial. Elliott also testified
that he did not know if Moyer gave the tape to Wade, but
that he is ‘‘sure’’ Moyer listened to it.
Elliott testified that Abrego and Neal had not been install-
ing MC cable; rather that they ‘‘were cutting in holes, get-
ting ready to’’ install the cable. He then amended: ‘‘I believe
they had been doing some’’ cable installation. Abrego testi-
fied that he had been ‘‘laying in light fixtures, screwing up
boxes.’’
Elliott estimated that ‘‘over 50 percent’’ of Respondent’s
work was ‘‘on hold’’ pending resolution of the cable prob-
lem. Wade granted that the hold did not mean ‘‘absolutely
no work’’; that ‘‘there were a few things that we could work
on.’’ Abrego testified that, despite the hold, ‘‘there was still
more work to be done in all the other floors that had not
even been touched.’’ Neal testified that he ‘‘knew something
was wrong, because we got moved to other floors to put in
light fixtures.’’ Neal added:
1091GUILD, INC.
24 An entry in Colwell’s Individual Earnings Record states that he
quit. Wade testified, however, that he was laid off. Wade elaborated:
‘‘[Colwell] had told me that he was going to be taking another job
in a couple of weeks, and he had to go to school or something, and
wanted to work like one or two days a week. And James [Elliott]
decided just to go ahead and lay him off at that point, because we
didn’t have enough work to keep the guys going, anyway.’’
Colwell’s Individual Earnings Record also states that he left Septem-
ber 2, whereas the timesheets credited him with 8 hours on both
September 8 and 9.
25 This formulation received Supreme Court approval in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
26 I am persuaded that Elliott and Wade (consistent with their
penchant generally for strategic overstatement or understatement) se-
riously exaggerated the extent that the hold forced a curtailment of
activity.
27 For instance, Elliott’s testimony that no ‘‘single, overriding fac-
tor’’ predominated; that it was ‘‘just a weighted decision.’’
28 For example, Elliott first testified that he selected Abrego and
Neal ‘‘since they were working as a pair’’; then, that this was not
a factor. And he testified that Dal-Mac’s complaints about Abrego
were not ‘‘a real significant factor’’; later, that he chose Abrego
‘‘mainly’’ because he ‘‘had already experienced . . . some problems
with him’’; and, yet later, that the complaints ‘‘may have entered’’
his mind.
29 Elliott’s assertion that Abrego was the last journeyman hired,
when he and Sims were hired at the same time.
[W]e were laying fixtures when Mr. Wade came up and
said we were laid off, and we were only about a third
of the way through that one floor, so there was work
there to do.
Respondent’s timesheets disclose that the discharges of
Abrego and Neal and the early September departure of Ron
Colwell, a part-time laborer, reduced the complement to 4;24
that it returned to 7 with the hire of 3 on September 29; and
that it ranged from 6 to 10 during the remainder of the year.
On September 21, as previously noted, Dal-Mac author-
ized Respondent to ‘‘work entire crew on overtime.’’ Evans
explained that this was to enable Respondent to catch up
with the subcontractors, ‘‘not put on hold’’ because of the
cable problem. The timesheets reveal that Respondent’s crew
logged an aggregate 120.5 hours of overtime from September
30 through October 6, 23.5 from October 14 through 20, 63
from October 21 through 27, 166.5 from October 28 through
November 3, 65 from November 18 through 24, 32.5 from
December 2 through 8, and lesser amounts during other
weekly periods.
By letter dated October 9, Elliott offered recall to Neal.
The letter stated in relevant part:
Guild, Inc. has resolved it’s [sic] difference with the
State in relation to the wiring methods.
At this time we are able to offer you your job back
at the same rate of pay.
You should understand that this project will be com-
plete within the next seven to ten months and at this
time Guild, Inc. has no other work in the Austin area.
Please respond to our offer in writing by October 16,
1992.
Neal did not reply. Abrego did not receive a similar offer.
B. Discussion
In Wright Line, 251 NLRB 1083, 1089 (1980), the Board
stated:
[W]e shall henceforth employ the following causation
test in all cases alleging violation of Section 8(a)(3) or
violations of Section 8(a)(1) turning on employer moti-
vation. First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a ‘‘motivating fac-
tor’’ in the employer’s decision. Once this is estab-
lished, the burden will shift to the employer to dem-
onstrate that the same action would have taken place
even in the absence of the protected conduct.25
I conclude, based on the following confluence of factors,
that the General Counsel has made the requisite prima facie
showing:
(a) Abrego and Neal made their union sympathies public
on August 31—two days before the discharges—by display-
ing union insignia at work. The record suggests that none of
the other crew members did likewise.
(b) Abrego also revealed his sympathies by disclosing his
membership to Wade on August 31.
(c) Given that Abrego and Neal first openly displayed their
sympathies the same day the Union filed for an NLRB elec-
tion, and the first workday after the Union’s business agent,
Merriweather, visited the job to promote representation, man-
agement likely inferred that they instigated those develop-
ments.
(d) As shown by Wade’s unlawful threat to Abrego on
August 31—that Respondent would ‘‘just shut it down and
then come back under a new company name and hire all new
people’’ should the Union try to organize—Respondent har-
bors a pronounced aversion to collective bargaining.
I conclude, as well, that Respondent has not overcome the
General Counsel’s prima facie showing. My reasons are
these:
(a) While the hold on MC cable seemingly was legitimate,
Elliott’s testimony was not persuasive that it dictated a re-
duction in force. Abrego and Neal both convincingly testified
that abundant work remained,26 which indicates that Re-
spondent seized on the hold as a convenient pretext.
(b) Despite being cleared to resume normal operation on
about September 10, receiving Dal-Mac’s overtime authoriza-
tion on August 21, hiring three new employees on August
29, and assigning considerable overtime starting in late Sep-
tember, Respondent never invited Abrego back and waited
until October 9 (5 days before the complaint issued) to invite
Neal. This, too, bespeaks a reason other than the hold for
discharging them.
(c) Elliott’s stated reasons for choosing Abrego and Neal
were self-impeachingly vague,27 shifting, conflicting,28 and
demonstrably untrue in at least one instance.29
(d) Little if any of the work done by Abrego and Neal had
involved cable installation.
(e) Apart from the chinks in Elliott’s credibility elsewhere
noted, his professed ignorance of Abrego’s and Neal’s union
proponency was so fundamentally implausible that it under-
cut his veracity generally. Not only had he learned on Au-
gust 28 about Merriweather’s visit, but Abrego and Neal dis-
played union insignia starting August 31, Abrego told Wade
on August 31 of his membership (provoking Wade’s unlaw-
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 While the recall offer embodied in Respondent’s October 9 let-
ter seemingly satisfied its obligation to Neal in this respect, I yield
to the compliance stage for a final determination.
31 Abrego’s and Neal’s make-whole entitlements shall be com-
puted as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
Interest shall be figured as set forth in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
32 I deny any outstanding motions inconsistent with this Order. 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.
33 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ful outburst), and Wade supposedly speaks with Elliott by
telephone about ‘‘three times a day.’’
(f) Wade’s credibility suffered from implausibility, as well.
Notable instances were his assertion that he and Sims did not
discuss—‘‘not at all’’—Merriweather’s August 28 visit; his
testimony, in the context of the two discharges, that Elliott
‘‘told [him] who he had selected’’ without first inviting his
opinion; and his further testimony that he did not know why
Elliott chose Abrego and Neal.
Respondent thus violated Section 8(a)(3) and (1) as al-
leged by discharging Abrego and Neal.
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(3) and (1) on September
2, 1992, by discharging Marcos Abrego and Ronald Neal.
Respondent further violated Section 8(a)(1) on August 25,
1992, when James Wade interrogated Neal about his union
affiliation during a job interview; and on August 31, 1992,
when Wade implicitly interrogated Abrego about his union
sympathies, and told him:
Well, if the Union tries to come over here and organize
this job, we will just shut it down and then come back
under a new company name and hire all new people.
REMEDY
I will provide in my recommended Order that Respondent
cease and desist from the unfair labor practices I have found,
and that it take certain affirmative action to effectuate the
policies of the Act.
With regard to the latter, I will direct that Respondent
offer Abrego and Neal reinstatement to their former or sub-
stantially equivalent positions, if it has not already done so,30
without prejudice to their seniority and other rights or privi-
leges; that it make them whole with interest where appro-
priate for their loss of earnings and benefits because of its
unlawful discharges of them;31 and that it remove from its
files and destroy any and all writings comprising, document-
ing, or referring to the discharges, and notify Abrego and
Neal in writing that this has been done and that those unlaw-
ful actions will in no way serve as a ground for or influence
future personnel or disciplinary action against them.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended32
ORDER
The Respondent, Guild, Inc., its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees for belonging to or engaging in activities in support
of International Brotherhood of Electrical Workers, Local
Union 520, a/w International Brotherhood of Electrical
Workers, or any other labor organization.
(b) Coercively interrogating job applicants or other em-
ployees about their union affiliation, activities, or sympathies.
(c) Threatening employees that Respondent will shut
down, hire all new employees, and come back under a new
name if a union should try to organize its employees.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) If it has not already done so, offer Marcos Abrego and
Ronald Neal immediate and full reinstatement to their former
positions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
and other rights or privileges, and make them whole as pre-
scribed above in the remedy section of this decision for any
loss of earnings and benefits they suffered because of Re-
spondent’s unlawful discharges of them.
(b) Remove from its files and destroy any and all writings
comprising, documenting, or referring to the discharges, and
notify Abrego and Neal in writing that this has been done
and that those unlawful actions will in no way serve as a
ground for or influence future personnel or disciplinary ac-
tion against them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amounts owing under the terms of this Order.
(d) Post at at its jobsite in Austin, Texas, at the William
P. Clements State Office Building, copies of the attached no-
tice marked ‘‘Appendix.’’33 Copies of the notice, on forms
provided by the Regional Director for Region 16, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
1093GUILD, INC.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
employees for belonging to or engaging in activities in sup-
port of International Brotherhood of Electrical Workers,
Local Union 520, a/w International Brotherhood of Electrical
Workers, or any other labor organization.
WE WILL NOT coercively interrogate job applicants or
other employees about their union affiliation, activities, or
sympathies.
WE WILL NOT threaten employees that we will shut down,
hire all new employees, and come back under a new name
if a union should try to organize our employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, to the extent we have not already done so, offer
to Marcos Abrego and Ronald Neal immediate and full rein-
statement to their former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights or privileges, and
WE WILL make them whole for their loss of earnings and
benefits because of our unlawful discharges of them.
WE WILL remove from our files and destroy any and all
writings comprising, documenting, or referring to the dis-
charges, and WE WILL notify Abrego and Neal in writing that
this has been done and that those unlawful actions will in no
way serve as a ground for or influence future personnel or
disciplinary action against them.
GUILD, INC.