K.W. Electric, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 2004

342 N.L.R.B. 1231 (N.L.R.B. 2004)

K.W. ELECTRIC, INC.
342 NLRB No. 126
1231
K. W. Electric, Inc. and International Brotherhood of
Electrical Workers, Local 466, AFL–CIO. Case
9–CA–40422
September 24, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On May 18, 2004, Administrative Law Judge Michael
Marcionese issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed cross-exceptions, a supporting brief,
and an answering brief to the Respondent’s exceptions.
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 decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified, and to adopt the recommended Order as modi-
fied and set out in full below.
1. Contrary to the judge, we find that the Respondent
violated Section 8(a)(1) and (3) of the Act by discharging
employee Michael McLean.
The complaint alleged that the Respondent unlawfully
terminated McLean by laying him off on May 30, 2003,
based on his union activity.2 In determining whether an
action against an employee was discriminatorily moti-
vated, the Board applies the test articulated in Wright
Line.3 Under that standard, the General Counsel must
show that the employee was engaged in protected activ-
ity, that the employer knew of this activity, and that the
employer’s decision to discipline or discharge the em-
ployee was motivated by antiunion animus. When the
General Counsel makes this showing, the burden shifts to
the employer to demonstrate that it would have taken the
action even in the absence of the protected activity.
The record shows that McLean engaged in protected
union activity and that the Respondent was aware of his
activity. Within a few days of his May 5 recall from
layoff, McLean informed Owner Michael Woodson that
he intended to join the Union and leave when he could
find a union job. The Respondent further demonstrated

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 All dates are 2003 unless otherwise noted.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
its knowledge of McLean’s union activity by citing these
intentions as the reason for choosing him to be laid off
first on May 30.
Unlike the judge, we further find that the Respondent
demonstrated antiunion animus. The judge construed the
issue of animus too narrowly, focusing solely on animus
in response to McLean’s expressed intent to join the Un-
ion and seek a union job elsewhere, rather than on ani-
mus toward union activity more generally, which the
Respondent amply demonstrated. On June 23, Marvin
Alderman,4 an agent of the Respondent who served as a
conduit of information from owner John Kuhn to the
employees, told employee Joe Farley, “John [Kuhn] . . .
would close the doors before joining the union.” More-
over, on June 25, Kuhn told Farley that the Respondent
“is a non-union company and will be a non-union com-
pany. If people wanted to be in the Union, they need to
go to another company to work.” Furthermore, Kuhn
said that he already had a partner, that would be his only
partner, and that would be the only contract he would
ever sign. These statements conveyed an unmistakable
message of the Respondent’s antiunion animus. In addi-
tion, the judge found, and we agree, that Farley’s termi-
nation on June 25, shortly after the Respondent became
aware of his union activity, was discriminatorily moti-
vated. Therefore, we find that the General Counsel has
satisfied his initial burden under Wright Line.5
We further find that the Respondent has failed to meet
its burden to show that it would have laid off McLean
even in the absence of his union activities. In defending
its layoff of McLean, the Respondent asserts that
McLean was planning to leave for a union job anyway,
and that McLean was the last employee hired.
We reject the assertion that the Respondent was justi-
fied in laying off McLean because of his intent to leave
for another job. There was no indication in the record
that McLean would leave anytime soon, and so the Re-
spondent had no concrete basis for citing McLean’s
eventual departure as justification for his layoff. Also,
because the project was winding down, it is likely that
McLean would have remained available to work for the

4 No exceptions were filed to the judge’s finding that Alderman was
not a supervisor within the meaning of Sec. 2(11) of the Act.
5 We find that these June statements are relevant to the issue of the
Respondent’s animus, even though they were uttered after McLean’s
layoff. The statements were made by Owner Kuhn or attributed to him
by agent Alderman. Moreover, they expressed not only an intense
dislike for unions, but also a categorical determination not to bargain
with one, even if it meant the loss of employees or the closing of the
business. The statements were made within a month after the Respon-
dent laid off McLean, and there is no evidence that they were in re-
sponse to any intervening event or involved only a particular project.
Therefore, we find that the statements reveal a strong and generalized
antiunion sentiment that predated the layoff of McLean.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1232
Respondent as long as his services were needed. There-
fore, his plans to leave would have been of little conse-
quence to the Respondent. In contrast, the Respondent’s
demonstrated animus toward union activity strongly sug-
gests that the union-related aspect of McLean’s plans
would be highly significant to the Respondent.
With respect to the assertion that McLean was the last
employee hired, the record shows that employee Smith
was hired the same day as McLean. Smith was laid off
after McLean. Thus, the evidence fails to establish that
McLean was the last employee hired. Nor does it show a
reason, apart from McLean’s union activity, for selecting
him to be laid off before Smith.
As the record does not support the Respondent’s as-
serted basis for selecting McLean for layoff, the Respon-
dent has failed to show that it would have laid him off
even in the absence of his union activity. Therefore, we
find that the Respondent terminated McLean on the basis
of his union affiliation.
In Buckeye Electric Co., 339 NLRB 334 (2003), an
employee announced he had joined the union and would
leave for a union job when he could find one. The em-
ployer subsequently discharged him. In finding that the
discharge was unlawful, the Board stated that the em-
ployer had no obligation to retain an at-will employee
after his announcement of his intention to leave for a
union job, but could not base its decision on the em-
ployee’s union activity. As we have found that the Re-
spondent laid McLean off on the basis of his union activ-
ity, we conclude that his termination violated Section
8(a)(1) and (3).6
2. We also find, contrary to the judge, that the Re-
spondent violated Section 8(a)(1) when Owner Woodson
told McLean that he was selected for layoff because he
planned to seek union employment. Citing the prospect
of McLean’s quitting to accept a union job as the basis
for his selection for layoff was merely an oblique way of
informing him that the action was being taken because of
his union membership. An employer violates Section
8(a)(1) by linking an employee’s discharge to his pro-
tected activity. Benesight, Inc., 337 NLRB 282, 283
(2001); see also Valley Material Co., 316 NLRB 704,
708 (1995). A reasonable employee would understand
from Woodson’s statement that he was being singled out

6 In finding that the Respondent unlawfully terminated McLean, we
do not rely on the Respondent’s failure to put McLean on low earnings
status or to transfer him to another jobsite. Although McLean was put
on low earnings in 2001, the Respondent’s employment records show
that no employees laid off in 2003 were put on low earnings status. In
addition, no evidence demonstrates that it was the Respondent’s normal
practice to transfer employees from one jobsite to another when work at
one was finished, although Woodson testified that the Respondent
occasionally did so.
for layoff from the other recently hired employees on the
basis of his union activity.
ORDER
The National Labor Relations Board orders that the
Respondent, K. W. Electric, Inc., Fayetteville, West Vir-
ginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with closure of the business
in order to avoid unionization.
(b) Making statements that convey to employees that
their union activities are futile.
(c) Terminating or otherwise discriminating against
employees for supporting International Brotherhood of
Electrical Workers, Local 466, AFL–CIO or any other
union.
(d) Informing employees that they are being dis-
charged because of their membership in the Union.
(e) In any like or related manner interfering with, re-
straining, 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 this Order, offer
Michael McLean and Joe Farley full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make McLean and Farley 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 this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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 Fayetteville, West Virginia, copies of the
attached notice marked “Appendix.”7 Copies of the no-

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
K. W. ELECTRIC, INC. 1233
tice, on forms provided by the Regional Director for Re-
gion 9, after being signed by the Respondent’s author-
ized 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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since May 30,
2003.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

CHAIRMAN BATTISTA, dissenting in part.
1. Contrary to my colleagues, I would adopt the
judge’s findings that the Respondent did not violate Sec-
tion 8(a)(1) and (3) of the Act by terminating employee
Michael McLean. It is undisputed that the Tamarack job
was coming to a close and that the Respondent was lay-
ing off employees as the remaining job requirements
decreased. McLean and employee Smith were the last to
be hired. Faced with the need to lay off an employee, the
Respondent selected McLean as the first to be laid off.
He and Smith were the most junior employees, and he
(unlike Smith) had said that he intended to quit as soon
as a union job could be found. Smith was laid off a few
days later.
I assume arguendo that the General Counsel has made
an initial showing that a reason for selecting McLean for
layoff was his union activity. However, in my view, the
Respondent established that McLean would have been
selected for layoff even if he had not engaged in union
activity. There is no dispute about the fact that someone
had to be laid off. The choice came down to the two
most junior employees—McLean and Smith. Of the two,
McLean had indicated an intention to leave as soon as a
union job came along. Smith had not so indicated. Thus,
the Respondent chose for layoff someone who could not
be relied upon to stay as long as needed.
As the judge found, the Respondent selected for layoff
an employee who expressed his intention to leave, over

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
other employees with an interest in continued employ-
ment with the Respondent. Clearly, this does not consti-
tute discrimination in violation of the Act. The fact that
the employee’s intention was to leave for a union job
does not alter the fact that he intended to leave.
2. I agree with the judge that Respondent did not vio-
late Section 8(a)(1) of the Act when Woodson told
McLean that he was being laid off because he planned to
quit to take a union job. Woodson’s statement was sim-
ply an explanation of one of the reasons for McLean’s
selection for layoff, not an assertion that McLean’s
membership in the Union was incompatible with contin-
ued employment by the Respondent. The Respondent
did not take any action against McLean when he first
informed the Respondent (Woodson) of his intention to
leave for a union job. In fact, Woodson told McLean
that he did not have a problem with that and that he ap-
preciated McLean’s honesty and his efforts to better him-
self. In these circumstances, a reasonable employee
would understand that he was being laid off because he
was going to be leaving anyhow, not because of where
he would be going, i.e., to a union job. In sum, I find
nothing in the context of Woodson’s explanation to
McLean or otherwise to suggest that the statement would
reasonably interfere with employee Section 7 rights.

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 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten you that we will close the busi-
ness rather than go union.
WE WILL NOT make statements that convey to you that
your union activities are futile.
WE WILL NOT terminate or otherwise discriminate
against any of you for supporting International Brother-
hood of Electrical Workers, Local 466, AFL–CIO or any
other union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234
WE WILL NOT inform you that you are being discharged
because of your membership in the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Michael McLean and Joe Farley full rein-
statement 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 privi-
leges previously enjoyed.
WE WILL make Michael McLean and Joe Farley whole
for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Michael McLean and Joe Farley, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that the discharge will not be used
against them in any way.

K. W. ELECTRIC, INC.

Jonathan D. Duffy, Esq., for the General Counsel.
Fred F. Holroyd, Esq. (Holroyd & Yost), of Charleston, West
Virginia, for the Respondent.
Bert McDermott Jr., Organizer, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Oak Hill, West Virginia, on March 23, 2004.
International Brotherhood of Electrical Workers, Local 466,
AFL–CIO (the Union), filed the charge on August 6, 2003,1 and
amended it on September 22 and October 28. On November
20, the complaint issued alleging that K.W. Electric Inc. (the
Respondent), violated Section 8(a)(1) and (3) of the Act. Spe-
cifically, the complaint alleges that the Respondent, on June 25,
through its owner and stockholder John Kuhn, made statements
of futility and told an employee that if he wanted to be in the
Union, he should work for another employer and that the Re-
spondent would never sign a contract with the Union. The
complaint further alleges that the Respondent, through alleged
Supervisor Marvin Alderman, threatened an employee on June
23, by saying that the Respondent would close its doors before
it would become union. The complaint alleges that the Re-
spondent violated Section 8(a)(1) and (3) of the Act by termi-
nating Michael McLean on May 30, and Joe Farley on June 25,
because of their membership in and support for the Union. The
General Counsel amended the complaint at the hearing to add
an additional 8(a)(1) allegation, i.e., that owner/stockholder

1 All dates are in 2003 unless otherwise indicated.
Michael Woodson informed an employee on May 30 that he
was being terminated because he joined the Union.
On December 5, the Respondent filed its answer to the com-
plaint, denying that Alderman was a supervisor and/or agent of
the Respondent and denying that it committed the alleged un-
fair labor practices. The Respondent answered the General
Counsel’s amendment at the hearing by denying the new alle-
gation.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Fayetteville, West Virginia, is an electrical contrac-
tor in the construction industry doing commercial and office
construction. The Respondent annually purchases and receives
at its Fayetteville facility goods valued in excess of $50,000
from State Electric Supply, Inc., a West Virginia enterprise
which purchases and receives these goods directly from outside
the State of West Virginia. The Respondent admits 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. Background
The Respondent is a nonunion electrical contractor and, I
have no doubt, would prefer to remain that way. The Union
has apparently attempted, unsuccessfully, to convince the Re-
spondent to enter into a voluntary agreement under Section 8(f)
of the Act. In 2003, the Union employed a new strategy, “salt-
ing,” in an effort to obtain recognition as the representative of
the Respondent’s employees. The unfair labor practice charges
at issue here arose, at least in part, out of that salting campaign.
John Kuhn and Michael Woodson are the sole shareholders
of the Respondent corporation and have owned it since 1996.
The Respondent admits that Kuhn and Woodson are supervi-
sors and agents within the meaning of the Act. Each has sole
responsibility for running a particular job. In 2003, for exam-
ple, Kuhn was in charge of a job at the Greenbriar in White
Sulphur Springs, West Virginia, and Woodson was in charge of
a job at the Tamarack state tourist site in Beckley, West Vir-
ginia. In addition, Woodson serves as the Respondent’s estima-
tor and Kuhn keeps the books. The evidence establishes that
Kuhn and Woodson are the only ones with the authority to hire,
fire, discipline, or promote employees and to determine their
wages and other terms and conditions of employment.
In the summer of 2003, the Respondent had seven jobs in
progress, including the Tamarack and Greenbriar jobs. Each
job was assigned a leadman. Marvin Alderman was the lead-
man at Greenbriar and Rick Atwood was the leadman at Tama-
rack. According to Kuhn, all lead men have the same duties
and responsibilities on the jobs they are assigned. Kuhn or
K. W. ELECTRIC, INC. 1235
Woodson select the leadman for the jobs over which each is in
charge. The leadmen are typically more senior, experienced
employees. These employees work as electricians on jobs
when they are not assigned to a leadman position. The General
Counsel alleges, and the Respondent denies, that Alderman was
a statutory supervisor and/or agent for the Respondent at the
Greenbriar job.
B. Alderman’s Supervisory Status
Farley, one of the alleged discriminatees, testified that he re-
ported to Alderman as the foreman when he worked for the
Respondent at Greenbriar. According to Farley, Alderman
made sure everyone was busy and had the material they needed
to do their job. Alderman also dealt with the architect. If Far-
ley had a question about his job assignment, he would ask Al-
derman. Farley testified that Kuhn was present on the job “usu-
ally two days a week” but that Alderman was there every day.
Farley also testified that Alderman did not spend much time
working with the tools.
Alderman testified that Kuhn visited the job “at least” 2
times a week, but conceded that, in his pre-trial affidavit, he
omitted the words “at least.” Kuhn himself denied only being
onsite 2 times a week. According to Kuhn, the frequency of his
visits to the job depended on what was going on at any given
time. He acknowledged, however, that he was not onsite every
day and that Alderman ran the job in his absence. Alderman
and Kuhn also acknowledged that Alderman kept track of em-
ployees’ time, assigned work to the employees on his crew,
about 10 electricians at the job’s peak, and that Alderman
would handle changes in the work that came up as a result of
what the other trades were doing. However, it was Kuhn who
hired employees for the job and who laid out the work and the
schedule for the job. Alderman was expected to follow Kuhn’s
schedule and layout in the absence of unforeseen changes.
Alderman and Kuhn also testified that, in making job assign-
ments, Alderman would assign employees to particular tasks
based on his knowledge of their individual experience and
skills. Alderman and Kuhn also acknowledged that Alderman
ordered material for the job when additional material was
needed and Kuhn was not available to order it. When the job
was winding down, it was Kuhn, not Alderman, who deter-
mined which employees to lay off.
Alderman and Kuhn also acknowledged that Alderman had
the authority to allow an employee to leave work early in an
emergency situation but claimed that, absent an emergency,
only Kuhn could grant time off. Alderman described an inci-
dent in which an employee asked for time off to take his son to
the hospital. According to Alderman, he told the employee he
should have spoken to Kuhn about this request because the
employee had known about it in advance. Alderman testified
that he told the employee he could not prevent him from leav-
ing under the circumstances, but that it would be up to Kuhn
whether permission was granted. According to Alderman,
employees rarely asked him for time off.
With respect to the assignment of work, Farley testified to an
incident in which two employees were sent from the Greenbriar
job to work on the higher-pay prevailing wage job at Tamarack.
According to Farley, he was present when another employee,
Jeff Akers, questioned Alderman why he had not been selected
to make the big bucks. Farley testified that Alderman replied
that the two employees who were sent to Tamarack rode to-
gether and that, next time, he would let Woodson or Kuhn
make the decision. Alderman did not testify about either the
conversation with Akers or the transfer of employees but Kuhn
testified that he, not Alderman, was the one who made the deci-
sion which employees to send to Tamarack and that Alderman
merely conveyed his decision to the employees.
Farley also testified that, when he asked Kuhn for a raise
shortly after he started working for the Respondent, Kuhn said
he would talk to Alderman and get back to him. Kuhn ac-
knowledged that he consulted with Alderman when Farley
asked for a raise, by asking Alderman how Farley was doing.
Kuhn testified that he made the decision to grant Farley a raise
independently of Alderman’s assessment of Farley’s perform-
ance based on a number of factors.
Section 2(11) of the Act defines a supervisor as:

Any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward or discipline other employees, or re-
sponsibly to direct them, or adjust their grievances, or effec-
tively 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.

It is well established that a person need possess only one of
the enumerated criteria to meet the statutory definition. Ohio
Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949), cert. denied
338 U.S. 899 (1949); Pepsi-Cola Co., 327 NLRB 1062, 1064
(1999). It is equally well established that the burden of proof is
on the party asserting supervisory status. NLRB v. Kentucky
River Community Care, 532 U.S. 706, 712 (2001). The Board
has frequently noted that it will not lightly find such status be-
cause to do so would deprive the individual of the rights af-
forded by Section 7 of the Act. Freeman Decorating Co., 330
NLRB 1143 (2000).
The evidence in the record here establishes, and it is essen-
tially undisputed, that Alderman possessed few, if any, of the
statutory indicia of supervisory status. In order to prove that
Alderman was a statutory supervisor, the General Counsel re-
lies upon the evidence described above showing that Alderman
assigned work, directed the employees, kept track of their time,
could allow employees to leave early in an emergency situation
and was involved in the temporary transfer of two employees to
Tamarack and the grant of a raise to Farley. The General
Counsel also relies on secondary indicia of supervisory status,
such as Alderman’s authority to order materials and to deal
with the architect and other contractors in Kuhn’s absence, his
presence as the highest ranking employee of the Respondent on
the job the majority of the time, and on “admissions” in pre-
trial affidavits that Kuhn considered Alderman, and Alderman
considered himself, to be a supervisor.
Alderman’s timekeeping responsibilities were clearly clerical
in nature. Although he had some authority to let employees
leave early, it was limited to emergency situations that did not
require the exercise of independent judgment, e.g., if someone
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1236
were sick or had to deal with a family crisis. Alderman’s testi-
mony that he couldn’t grant permission for an employee to go
fishing demonstrates the limits of his authority. Kuhn, on the
other hand, could permit an employee a day off for such a pur-
pose. Alderman’s assignment of employees was based upon
the schedule of work prepared by Kuhn and Alderman’s
knowledge of the skills and experience of the employees work-
ing under him. Even where a change in the schedule or layout
of the work was necessitated by an unforeseen event on the job,
Alderman’s decisions were constrained by the order within
which the job had to be done and did not evidence the type of
independent judgment one would expect from a true statutory
supervisor. Thus, there is no evidence that Alderman had the
authority to delay a particular task simply because he thought it
would be better for the overall performance of the job. Nor is
there any evidence that Alderman could decide to assign an
inexperienced employee to a complex task to test the limits of
his capabilities. Alderman’s direction of his crew was similarly
limited to making sure they kept busy and had the materials
they needed. There is no evidence that Alderman inspected
their work, instructed employees to re-do work, disciplined, or
recommended discipline for an employee he believed had not
done satisfactory work, or otherwise displayed independent
judgment in carrying out his responsibilities. See Arlington
Electric, 332 NLRB 845, 845–846 (2000), and cases cited
therein.
The General Counsel relies on Farley’s testimony regarding
the conversation he witnessed between Alderman and employee
Akers to prove that Alderman had the authority to reassign
employees to a higher-paid job. Alderman’s response to Akers’
complaint about not being transferred to the Tamarack job, i.e.,
that next time he would let Woodson or Kuhn make the deci-
sion, suggests that Alderman had made the decision in that
instance. Although Kuhn disputed this, Alderman was not
asked about either the conversation with Akers or the transfer
itself. It should also be noted that the General Counsel did not
call Akers to corroborate Farley’s testimony. Farley’s testi-
mony is suspect because he was able to recall this conversation
without it having been recorded yet had difficulty recalling his
conversation with Kuhn on June 25 that had been recorded. In
the absence of corroboration, I am not inclined to rely on such
an off-hand comment as proof that Alderman had in fact made
the decision regarding which employees to reassign to Tama-
rack or that Alderman had the authority to make such decisions
independently.
Kuhn’s testimony that he spoke to Alderman in response to
Farley’s request for a raise and granted the raise after Alderman
told him Farley was doing good work does not establish that
Alderman had the authority to effectively recommend raises for
employees generally. It appears from Kuhn’s testimony, which
was credible at least as to this aspect of the case, that he had
made the decision to grant Farley’s request independently of
Alderman’s report that Farley was a good worker. From other
evidence in the record, it is clear that Kuhn had the same opin-
ion of Farley’s work. Moreover, the decision to give Farley a
raise was primarily based upon Farley’s claim of financial
hardship rather than being a reward for good work. The record
contains no evidence that Alderman regularly evaluated the
performance of electricians on his crew or had any input, be-
yond this one isolated incident, into Kuhn’s decisions regarding
wages or raises.
Finally, factors such as the ratio of supervisors to employees
and whether the employer or the individual whose status is in
dispute consider the individual to be a “supervisor,” are secon-
dary indicia and not enough, standing alone, to convey supervi-
sory status within the meaning of the Act. Ken-Crest Services,
335 NLRB 777, 779 (2001); John N. Hansen Co., 293 NLRB
63, 64 (1989). See also Adco Electric, Inc., 307 NLRB 1113,
1120 (1992), and cases cited therein. I note, in this regard, that
the purported “admissions” contained in Kuhn’s and Alder-
man’s pretrial affidavits were based on their understanding of
the lay definition of the word rather than any legal analysis of
the statutory criteria relied upon by the Board.
I find, based on the above, that the General Counsel has not
met his burden of proving that Alderman possessed any of the
statutory authority that would make him a supervisor within the
meaning of the Act. At most, Alderman possessed “the kind of
routine, decision-making authority typical of non-supervisor
leadmen.” Chrome Deposit Corp., 323 NLRB 961, 964 (1997).
Accord: Arlington Electric, supra. The General Counsel al-
leges that Alderman was an agent of the Respondent even if he
was not a supervisor. I shall discuss this allegation later in this
decision in connection with the alleged unlawful statement
attributed to Alderman.
C. Evidence Regarding the Alleged Unfair Labor Practices
Michael McLean was first hired by the Respondent in July or
August 2001. He was not a member of any union at that time.
After about 1 year, he was laid off when work slowed. At that
time, the Respondent put McLean on what is known in West
Virginia as “low earnings.” This status, for unemployment
purposes, means that the Respondent intended to recall McLean
when work became available. The effect of such status is that
the laid off employee is not subject to having to report efforts to
find other work as a condition of receiving unemployment
benefits. Woodson explained that, when McLean was laid off
in 2002, the Respondent was anticipating a new job starting
shortly in McLean’s area. The Respondent ended up not get-
ting this job and McLean was not recalled. The Respondent
nevertheless continued to carry McLean in “low earnings”
status until it learned that he had found another job, at which
point McLean was placed in lay off status.
The Respondent did call McLean to come back to work in
May 2003 when it had work available on the Tamarack job.
The Respondent’s records show that McLean started working
for the Respondent again on May 5. McLean had joined the
Union since his last employment by the Respondent and, admit-
tedly, was waiting for a referral to a union job. There is no
dispute that McLean made this known to the Respondent al-
though there is a dispute as to when he reported his union
status. According to McLean, Woodson pulled him aside on
May 7, and asked what plans McLean had. McLean testified
that he told Woodson that he wanted to be up front with him,
that “it looks like I’m going to join the Union and go to work
for the Union.” He explained to Woodson that, if a union job
came up, he would quit to take it. Woodson replied that he
K. W. ELECTRIC, INC. 1237
didn’t have a problem with that, with somebody trying to better
themselves. Woodson told McLean that he appreciated his
honesty. Woodson also told McLean that he had a stack of
applications from union electricians looking for work.
Woodson’s version of this conversation does not differ signifi-
cantly from McLean’s testimony. However, Woodson recalled
that it was McLean who approached him on his first day on the
job and that McLean volunteered his plans to join the Union
and quit when he got a union job. According to Woodson, he
told McLean that he could work for the Respondent until he got
another job or until the Respondent didn’t have any more work
for him.
There is no dispute that McLean continued to work for the
Respondent, without incident, until May 30, when Woodson
laid him off. McLean admitted that he engaged in no union
organizing activity while working for the Respondent and that
he did not wear any union hats, clothing, or other insignia on
the job. McLean testified that, at the time of his lay off, he was
working on outside lighting in the parking lot. Woodson told
him that “work was getting jammed up, meaning they didn’t
have, with the rainy season everything was—they didn’t have
places for everybody to go, and since I’d told him I was proba-
bly going to be quitting and going into the Union anyway, he
felt it better to lay me off than someone else.” McLean asked
Woodson if he would be on “low earnings” and Woodson said
he didn’t see a problem with that but he had to talk to Kuhn.
Woodson later told McLean that there was a new company
policy not to put people on “low earnings.” There is no dispute
that McLean was the only employee laid off from the Tamarack
job that day and that Woodson did not offer McLean work at
any of the Respondent’s other jobsites.
Woodson admitted laying off McLean on May 30 but he did
not recall McLean asking to be put on “low earnings.”
Woodson also admitted that McLean asked if Woodson would
consider him for other work. According to Woodson, he told
McLean that he would. During the General Counsel’s ques-
tioning of Woodson under Rule 611(c), Woodson acknowl-
edged that the Respondent hired employees after McLean was
laid off, including Farley who was hired on June 2. Woodson
explained that he did not offer McLean work at other jobs be-
cause those jobs were not prevailing wage jobs like the Tama-
rack job,2 and because they were outside the geographic area
where McLean had indicated he wanted to work. Woodson
claimed that McLean had previously indicated that he would
not work a nonscale job because he needed the money. The
application McLean filled out in February 2001 does not reflect
this. On the contrary, McLean wrote $13/hour in the space
“hourly rate required.” Although McLean did indicate in his
application that he was not willing to work in all areas of West
Virginia, he wrote that he “prefer[ed] to work southern half
from Charleston to Lewisburg and down.” White Sulphur
Springs, where the Greenbriar job was located, is about 10
miles east of Lewisburg.
Several letters submitted by the Respondent to the Board’s
Regional Office during the investigation show that the Respon-

2 The records show that McLean was paid $34.07/hour on the Tama-
rack job.
dent did hire new employees after McLean was laid off.3 None
of these employees was hired to work at the Tamarack job
which was in the process of winding down and was finished by
August. There is no evidence that the Respondent had any
other prevailing wage work available at the time of McLean’s
lay off. The employees who were hired after McLean’s lay off
appeared to have been hired, like Farley, for the Greenbriar job,
which was essentially gearing up at the time and continued
through the remainder of the year. These position statements
also show that McLean was the last person hired on the Tama-
rack job and that another employee hired the same date as
McLean, i.e., Gary Smith, was laid off shortly after McLean, on
June 3.4
Joe Farley was hired by Kuhn to work at the Greenbriar job
on June 2. Farley had not worked for the Respondent before.
He was a union member and admitted being sent to work for
the Respondent with the purpose of organizing the employees,
i.e., he was a “salt.” There is no dispute that Farley did not
identify himself as a union member when he applied for a job
with the Respondent. When he started working at the Green-
briar job, there were seven or eight other electricians working
there, all but one of whom had started before Farley. Dean Dix
started working at Greenbriar the day after Farley. As previ-
ously noted, Farley reported to Alderman. Farley testified that,
during his third week of employment, he asked Kuhn for a
raise. According to Farley, Kuhn told him he could give him as
much as $1/hour more, and that he had heard good things about
Farley from Alderman. Shortly after this conversation, Farley
got a $1.25/hour raise. There is no dispute that Farley had not
engaged in any overt union activity up to this point in time.
On Thursday, June 19, Farley made his first attempt to or-
ganize his coworkers. Farley testified that he revealed his
membership in the Union to Dix and explained to Dix the bene-
fits of membership in the Union. The next day, Friday, Farley
gave Dix some union literature. The following Monday, June
23, Farley wore a union shirt and hat with union stickers to
work and handed out union literature to coworkers in the park-
ing lot. At 7 a.m. that morning, Kuhn conducted his regular
safety meeting. According to Farley, while speaking about
work other crafts were doing, Kuhn looked at him and, in a
“slip of the tongue,” said “rooftop unions,” instead of “units,”
were being installed. Kuhn immediately corrected himself and
there was no further mention of the Union in the meeting.5
Farley testified that, later that morning, when he asked Kuhn
for some material he had been looking for, Kuhn looked at him
and shook his head from side to side. According to Farley, this
differed from the usual friendly manner in which Kuhn greeted
him before he wore the union insignia to work.
Farley testified that, at lunchtime that Monday, he attempted
to give Alderman a union pamphlet. Alderman rejected it,
telling Farley that he didn’t need to read it, that he wouldn’t

3 Both the General Counsel and the Respondent apparently rely upon
the summaries of the Respondent’s records that were submitted with
these position letters. Neither party offered records to contradict the
information contained in these summaries.
4 The Respondent’s position letter indicates that Smith was paid
$14/hour, suggesting that he was not working at the Tamarack job.
5 Kuhn had no recollection of making such a “slip of the tongue.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1238
work a union job unless the Respondent joined the Union.
Alderman also told Farley that he wouldn’t join the Union be-
cause he was working and the union guys were not. Alderman
then told Farley that Kuhn had said he would close rather than
go union. Alderman did not dispute this testimony but he did
admit, during the General Counsel’s Rule 611(c) examination
of him, that he made a similar remark to Dean Dix. Alderman
admitted telling Dix that “Kuhn said he would rather disassem-
ble his company as go union.” Although he admitted making
such a statement, Alderman claimed that it was not true, that
Kuhn never said such a thing. Kuhn also denied ever saying
that he would close the company before going union. Although
Alderman did not testify as to the precise date or location of his
conversation with Dix, I shall infer that the conversation took
place during the time that Dix worked for the Respondent at
Greenbriar. There is no evidence in the record that Alderman
had a preexisting relationship with Dix or would have had any
occasion to make such a statement before Farley’s efforts to
organize Dix and the other employees at Greenbriar.
Farley testified that he wore the union shirt and the hat with
union stickers the next day and continued his organizing activ-
ity. Neither Kuhn or Alderman said anything to him about the
Union that day. On Wednesday, June 25, Farley continued his
organizing activities. Kuhn was present on the job that day.
Farley testified that, at about 1 p.m., he approached Kuhn and
asked to speak to him. There is no dispute that Farley and
Kuhn went into a building where no one else was within ear-
shot to have this conversation. Farley tape recorded part of this
conversation, using a mini-cassette recorder. Farley admitted
that he did not begin taping the conversation until about 5 min-
utes into it. Farley had almost no recollection of what was said
before he turned on the tape. When pressed, he admitted that
Kuhn told him, near the beginning of their conversation, that
the Respondent had no more work for him. He also recalled
telling Kuhn that he was there to prove that the Union could
provide the Respondent with good workers, to educate the
workers about the Union, and possibly to convince Kuhn to join
the Union. The only other thing that Farley was able to recall,
before listening to the tape at the hearing, was that Kuhn said
he had already told the union guys that he wasn’t interested in
joining the Union, now or ever, and that he had offered to sell
the business to the Union but they did not want any part of it.
Even after the tape and a purportedly enhanced CD-rom copy
of it were played at the hearing, Farley still had difficulty re-
calling any part of the conversation independently. Farley’s
apparently poor recall of this particular conversation leaves the
audio recording he made as the only evidence in the record
supporting the General Counsel’s allegations that Farley vio-
lated Section 8(a)(1) of the Act.6
The General Counsel also played the CD-rom version of the
tape for Kuhn during his examination under Rule 611(c). Be-
fore listening to the recording, Kuhn testified that Farley ap-
proached him before noon in the Sporting Lodge, away from
where others were working. Kuhn recalled that Farley said he
was working for the Union, that he was handing out union lit-

6 As previously noted, Farley did not display a similar lack of recall
when testifying about other conversations that he had not recorded.
erature to the other employees and that the Union wanted to
speak to him. Before listening to the tape, Kuhn denied that he
told Farley that the Respondent was a nonunion company and
would remain a nonunion company and that if people wanted to
be in the Union, they needed to go to another company to work.
Kuhn also denied telling Farley that he already had a partner
and that would be the only partner he’d ever have. Kuhn also
denied telling Farley that he had already told the Union that he
would not sign an agreement with them. Kuhn did admit tell-
ing Farley in this conversation that he was terminated but
claimed that this was the first thing he said to Farley before any
mention of the Union came up in the conversation. Kuhn did
admit that he already knew before this conversation, from re-
ports he had received from Alderman, that Farley was trying to
organize his employees.
When the CD-rom version of the tape was played at the hear-
ing, it was virtually inaudible. The court reporter was unable to
transcribe any of it.7 Nevertheless, Kuhn did recognize his
voice on the recording. He continued to deny that he told Far-
ley, “in an entire sentence all put together,” that the Respondent
was and would remain nonunion and that employees who want
to be in the Union should go work for another company. Kuhn
also continued to deny making the statement about his partner.
Kuhn did acknowledge saying that he had already told the Un-
ion, when they approached him about signing a contract, that he
wasn’t interested. When Kuhn was recalled to testify as a wit-
ness for the Respondent, he appeared to acknowledge that the
tape accurately reflected the conversation he had with Farley
that day, but claimed that all the statements recorded were
made after he had informed Farley that he was being laid off
because there was no more work for him. Kuhn also testified
that Farley elicited the statements by asking him questions,
essentially claiming some kind of entrapment.
I received both the original cassette recording and the CD-
rom copy into evidence, over the Respondent’s objection, after
hearing testimony from the individuals who had custody of the
original tape after Farley transcribed it by hand and from the
acknowledged audio expert regarding the manner in which the
cassette was copied and the audio “cleaned up” on the CD-rom.
See Williamhouse of California, Inc., 317 NLRB 699 (1995);
Wellstream Corp., 313 NLRB 698, 711 (1994). Cf. Medite of
New Mexico, Inc., 314 NLRB 1145, 1146 fn. 7 (1994), enfd. 72
F.3d 780, 787 (10th

Cir. 1996). Although the quality of both
the original cassette and CD-rom were poor when played at the
hearing, the CD-rom is much more audible when listened to on
a personal computer. The handwritten transcript prepared by
Farley and duplicated on the CD-rom also accurately tracks the
audio recording. While the tape admittedly does not capture
the entire conversation and remains difficult to understand in
parts, these factors go to the weight, rather than admissibility.
U.S. v. Parks, 100 F.3d 1300 (7th

Cir. 1996). In this regard, I
note that the Respondent, who was provided copies of both the
cassette and the CD-rom at the hearing and was offered the

7 The same situation occurred later in the hearing when the original
cassette recording was played. Although it was a little more audible than
the CD-rom, the court reporter was still unable to transcribe any of it.
K. W. ELECTRIC, INC. 1239
opportunity to submit it’s own transcript of the recording with
its brief, has not disputed the transcript prepared by Farley.
The audio recording of the June 25 conversation is about 11
minutes long. Because Farley concedes that he did not begin
taping until about 5 minutes into the conversation, I shall infer
that the entire conversation lasted approximately 15 minutes.
The recording reveals a rather amiable conversation in which
Kuhn displayed no overt hostility, or anger toward the Union or
Farley. On the contrary, several times during the conversation
Kuhn complimented Farley on his work and told him he appre-
ciated all the work he had done. The tape does confirm that
Kuhn told Farley that the Respondent “is a non-union company
and will be a nonunion company. If people want to be in the
Union, then they need to go to another company to work.” This
statement was made after Kuhn expressed frustration with un-
ion efforts to get him to voluntarily sign a contract, with Kuhn
asking Farley at one point how Farley felt when someone kept
calling him at home trying to sell him something he didn’t
want. Farley expressed empathy for Kuhn’s frustration over
this. The above statement also was made in the context of
Kuhn saying, several times, that he sees no difference between
union and nonunion, that all he cares about is that someone is a
good worker. Kuhn also expressed the opinion, with which
Farley apparently agreed, that the Union only wanted to sign up
the Respondent because the Respondent was successful at get-
ting work. The tape also confirms that Kuhn said, in the con-
text of these remarks, that he already had a partner, that would
be the only partner he will have and that will be the only con-
tract he would sign.
There is no dispute that Farley was informed that he was be-
ing laid off during this conversation on June 25. It is more
likely than not that Kuhn informed Farley that he was being
laid off at the beginning of the conversation, before Farley
turned on the recording. Based on Kuhn’s testimony, which I
found more credible than Farley’s lack of recall, at least with
regard to this aspect of the conversation, I find that Kuhn told
Farley he was being laid off before Farley began talking about
the Union. Farley testified that he made the decision to termi-
nate Farley the day before, based on a lack of work, and that he
had tried calling Farley the night before to tell him not to come
to work. When Farley’s answering machine picked up, Kuhn
decided to wait to tell Farley in person the next day rather than
leave such a message on a recording. Farley acknowledged that
his caller ID revealed that Kuhn had called his home while
Farley was out on June 24.
Kuhn denied that Farley’s union membership or activities
had anything to do with his decision to lay Farley off on June
25.8 Kuhn testified that Farley was hired with a group of elec-
tricians when the contractor was pushing the Respondent to get
a lot of work done. According to Kuhn, Farley was laid off as
that phase of the project was finishing because there wasn’t
enough work to keep everyone busy. Although no one else was

8 Kuhn also denied an antiunion motivation behind McLean’s termi-
nation on May 30. However, because Kuhn admits he did not make the
decision to lay off McLean and only knew of the reasons by virtue of
his position as a co-owner of the company, I attach no weight to this
denial.
laid off at the same time, other electricians were laid off in the
weeks and months after Farley’s lay off. The summaries of the
Respondent’s records that were submitted to the Board’s Re-
gional Office during the investigation confirm this. Kuhn testi-
fied that he selected Farley as the first to be laid off in this
group because he was one of the higher-paid employees on the
job and because he was the last one “hired.” As to the latter
point, Kuhn admitted that the Respondent’s records show that
the date of hire for Dix was 1 day after Farley’s date of hire.
However, Kuhn testified that Dix had been offered the job and
accepted it 2 weeks earlier but had to give notice to his current
employer before starting work. According to Kuhn, he consid-
ered Dix to have been hired when he accepted the job, not when
he started working. Kuhn acknowledged that no records docu-
mented this claim.
Kuhn also acknowledged that the reason Farley was one of
the higher-paid employees on the Greenbriar job was that he
had just given him a raise. According to Kuhn, he gave Farley
the raise when Farley complained that he needed more money
to pay for gas to get to the job. Kuhn claimed that he agreed to
give Farley more money knowing that he would be laying him
off shortly. Farley testified he would not have given such a
generous raise to an employee if he thought he would be carry-
ing him on the payroll for any length of time. The circular
nature of Kuhn’s reasoning makes his testimony somewhat
suspect.
The position statements submitted by the Respondent, re-
ferred to previously, contain summaries which show that
McLean was laid off before several employees who were hired
after him. These summaries do not show that any employees
were hired, after McLean’s lay off, to work at Tamarack. The
summaries also show that Farley was hired June 2 and Dix was
hired June 3. Although Farley was laid off on June 25, Dix
continued to work for the Respondent until the week of August
29 when he was laid off. These summaries also show that
Akers, who was hired May 12, after McLean but before Farley,
was still employed by the Respondent as of October 13 and that
Roger Sargent Jr., who was not hired until July 14, was also
still employed in October. The last position statement submit-
ted to the Region, signed by the Respondent’s attorney and
dated October 13, includes a statement suggesting that McLean
was terminated when work at Tamarack slowed down because
“he was the last man hired on that job.” Alderman had also
stated, in his pre-trial affidavit, “employers lay off employees
in the order they are hired. The last person hired at the job site
would be the first person laid off at the job site.” At the hear-
ing, Alderman explained he was only voicing his assumption
regarding how lay offs are done. Alderman denied that he had
any role in making lay off decisions. In contrast to these prior
statements, Kuhn denied that the Respondent had a practice of
laying off employees by seniority. According to Kuhn, a num-
ber of factors are considered in making lay off decisions, in-
cluding the type of work available, whether it is prevailing
wage work or not, the skills and experience of particular em-
ployees and whether they fit the work that is available, the dis-
tance of the available jobs from the employees’ homes, as well
as the employees’ relative hire dates.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1240
D. Analysis
The complaint alleges several violations of Section 8(a)(1)
and (3) of the Act involving the Respondent’s discharge of two
employees. Because resolution of the discharge allegations
turns on employer motivation, the test adopted by the Board in
Wright Line,9 applies. Under this test, the General Counsel
bears the initial burden of proving by a preponderance of the
evidence that union or other protected concerted activity was a
motivating factor in the employer’s actions. To meet this bur-
den, the General Counsel must offer evidence of union or other
protected activity, employer knowledge of this activity, and the
existence of antiunion animus that motivated the employer to
take the action it did. The Board has recognized that direct
evidence of an unlawful motivation is rarely available. The
General Counsel may meet his burden through circumstantial
evidence, such as timing and disparate treatment, from which
an unlawful motive may be inferred. See Naomi Knitting
Plant, 328 NLRB 1279 (1999), and cases cited therein. If the
General Counsel meets his burden, then the burden shifts to the
respondent to prove, by a preponderance of the evidence, that it
would have taken the same action, or made the same decision,
even in the absence of protected activity. The complaint also
alleges independent violations of Section 8(a)(1) of the Act. In
analyzing these allegations, motivation is irrelevant. Rather,
the test applied by the Board is an objective one. The Board
seeks to determine whether statements made by an employer
would reasonably tend to chill employees in the exercise of
their statutory right to engage in or refrain from engaging in
union or other protected concerted activity. American Freight-
ways Co., 124 NLRB 146, 147 (1959). Accord: Yoshi’s Japa-
nese Restaurant, 330 NLRB 1339 fn. 3 (2000).
The complaint, as amended at the hearing, alleges that the
Respondent terminated McLean on May 30 in violation of Sec-
tion 8(a)(1) and (3) of the Act and that Woodson independently
violated Section 8(a)(1) of the Act that day by informing
McLean he was being discharged because of his membership in
the Union. There is very little dispute factually regarding what
happened to McLean. Woodson and McLean agree that, either
at the time McLean was hired or within his first few days of
employment, McLean informed Woodson that he was attempt-
ing to join the union and planned to quit working for the Re-
spondent as soon as the Union referred him to a job.10 It is also
undisputed that Woodson did not react negatively to this news
and, in fact, wished McLean luck with his plans to “improve
himself.” McLean then worked without any problem and with-
out engaging in any type of union activity for more than 3
weeks until Woodson told him that work was getting jammed
up and he had to let him go. Woodson essentially admitted that

9 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st

Cir. 1980), cert.
denied 455 U.S. 988 (1982). See also Manno Electric, 321 NLRB 278,
280 fn. 12 (1996).
10 McLean testified that he was already a union member when he
started working for the Respondent on May 5. Nevertheless, by his
own testimony, McLean merely informed Woodson that “it looks like
I’m going to join the Union.” This is consistent with Woodson’s testi-
mony and the statements in the letters that the Respondent submitted to
the Regional Office during the investigation.
he decided to lay McLean off because McLean planned to leave
anyway once he got a job through the Union. The General
Counsel argues that Woodson’s statement to McLean was an
admission of unlawful motivation in violation of Section
8(a)(3) and that McLean’s lay off was therefore an unfair labor
practice.
Looking at these facts from a purely theoretical point of
view, one might conclude that the General Counsel was correct.
After all, Woodson did say that he chose to lay off McLean
rather than someone else because McLean had announced his
intention to join the Union. However, in reality, McLean’s
decision and statement reflects the simple fact that McLean had
no intention of continuing his employment with the Respondent
for the long term. He admittedly was biding his time until
something better, i.e., a union job, came along. McLean wasn’t
laid off because he was attempting to organize his fellow em-
ployees. In fact, McLean wasn’t even a “salt.” Moreover,
there was no union organizing campaign taking place during
the time that McLean worked at Tamarack. Woodson dis-
played no animus at all toward McLean’s announcement of his
intention to join the Union and quit for a union job. While it is
true that another employee hired the same day as McLean was
not laid off until 4 days later and that other employees were
hired after McLean was laid off, it is undisputed that the job at
Tamarack was in fact winding down. New employees hired
after McLean’s lay off worked at Greenbriar and other jobs.
Although Woodson acknowledged that the Respondent occa-
sionally transferred employees to other jobs when work slowed
on their current job, it would make little sense for the Respon-
dent to make such a commitment of future employment to
McLean when he was unwilling to make a similar commitment
to the Respondent. I have considered the statements Kuhn
made to Farley about a month later but find that they shed very
little light on Woodson’s animus in terminating McLean.
Woodson and Kuhn had sole responsibility for their respective
jobs in terms of hiring and firing and there is no evidence that
Kuhn had any input into Woodson’s decision to lay off
McLean. Even assuming Kuhn’s statements to Farley on June
25 violated the Act, they are not enough to prove an unlawful
motivation behind Woodson’s decision to terminate McLean on
May 30.
Applying the Wright Line test to these facts, I find that the
General Counsel has failed to establish that the Respondent was
motivated by any protected activity engaged in by McLean
when it laid him off on May 30. Although McLean was a
member of the Union and had expressed to the Respondent his
intent to work for a union company, the Respondent displayed
no animus toward this very limited activity. When work
slowed to the point that the Respondent needed to lay off an
employee at McLean’s job, it chose him not because of his
status as a union member but because he intended to quit any-
way. I conclude that an employer who chooses to retain em-
ployees who are willing to make a commitment to continued
employment over employees who are unwilling to do so is not
the kind of discrimination proscribed by the Act. Accordingly,
I shall recommend dismissal of this allegation of the complaint.
Similarly, I find that Woodson’s statement that he was laying
McLean off because of his plans to quit and take a job through
K. W. ELECTRIC, INC. 1241
the union when one became available was nothing more than a
statement of the facts admitted to by McLean. Viewed objec-
tively, such a statement would not have a reasonable tendency
to interfere with the rights of employees generally to exercise
their statutory rights. Woodson’s statement did not amount to a
statement that Woodson’s membership in the Union was in-
compatible with continued employment by the Respondent but
an acknowledgement that McLean apparently believed it did.
Accordingly, I shall recommend dismissal of the 8(a)(1) allega-
tion amended into the complaint at the hearing.
The complaint also alleges that the Respondent violated Sec-
tion 8(a)(1) of the Act through statements by Alderman that the
Respondent’s owner, Kuhn, would close the business rather
than join the Union. Alderman admitted making such a state-
ment to employee Dix.11 I shall also credit Farley’s testimony
that Alderman made a similar statement to him, notwithstand-
ing my doubts about the reliability of Farley’s memory. Far-
ley’s testimony is consistent with the statement Alderman ad-
mits making to another employee making it more probable that
Alderman would have made a similar statement to Farley in the
course of discussing his views of the Union. The Board has
consistently found statements that an employer will close or go
out of business in the event of unionization to be unlawful and
highly coercive when attributable to the Respondent. See
NLRB v. Gissel Packing Co., 395 U.S. 575, 617–619 (1969);
Miller Electric Pump & Plumbing, 334 NLRB 824 (2001);
Overnite Transportation, 296 NLRB 669, 670 (1989), enfd.
938 F.2d 815 (7th

Cir. 1991). Having found above that Alder-
man was not a statutory supervisor, the Respondent could only
be liable for these threats if Alderman were found to be an
agent of the Respondent.
The Board applies common law agency principles to deter-
mine whether a nonsupervisory employee is an agent of the
employer and thus whether the employee’s conduct is attribut-
able to the employer. If the employee was acting with the ap-
parent authority of the employer with respect to the alleged
conduct, then the employer is responsible for the conduct.
Under the doctrine of apparent authority, “an agency relation-
ship is established where a principal’s manifestations to a third
party supply a reasonable basis for the third party to believe
that the principal has authorized the alleged agent to perform
the acts in question.” Fleming Companies, 336 NLRB 192
(2001), and cases cited therein. To determine whether the al-
leged agent had such apparent authority, the Board will con-
sider “whether, under all the circumstances, the employees
would reasonably believe that the employee in question was
reflecting company policy and speaking and acting for man-
agement.” Id. See also, D & F Industries, 339 NLRB 618
(2003); Hausner Hard-Chrome of KY, 326 NLRB 426, 428
(1998); Delta Mechanical, Inc., 323 NLRB 76, 77–78 (1997).
In the present case, there is no dispute that Alderman, as the
Respondent’s leadman on the Greenbriar job, told the employ-

11 I disagree with the Respondent’s contention that Alderman’s
statement to Dix that Kuhn would “rather disassemble his company as
go union” is somehow less threatening than a threat to close the busi-
ness. Whether the business was closed or “disassembled,” the effect on
employees would be the same, i.e., loss of employment.
ees what to do, made sure they kept busy and had the material
they needed to do their work, kept track of their time and, gen-
erally, acted as the Respondent’s representative when Kuhn
was not onsite. Kuhn himself admitted that he “tell[s] Marvin
[Alderman] a lot of things that he can relay for me.” This tes-
timony acknowledges Alderman’s role as a “conduit for trans-
mitting information [from management] to other employees.”
Debber Electric, 313 NLRB 1094, 1095 fn. 6 (1994), as quoted
in Hausner Hard-Chrome of KY. The Board has found agency
status based on facts almost identical to those present here. I
find that, when Alderman told Dix and Farley that Kuhn would
rather close or disassemble the company as go union, the em-
ployees would reasonably believe that he was speaking for
management. Whether Kuhn in fact ever made such a state-
ment is immaterial because it is the coercive nature of Alder-
man’s statement that is at issue. See Buckeye Electric Co., 339
NLRB 334 (2003) at fn 1. Accordingly, I find that the Respon-
dent violated Section 8(a)(1) of the Act, as alleged in the com-
plaint, through Alderman’s threats of closure.
Finally, the complaint alleges that the Respondent committed
several independent violations of Section 8(a)(1) of the Act
during Kuhn’s conversation with Farley on June 25, and that
the Respondent’s decision to lay Farley off that day was dis-
criminatorily motivated in violation of Section 8(a)(1) and (3)
of the Act. Because of Farley’s inability to recall most of this
conversation, the General Counsel’s best evidence in support of
the independent 8(a)(1) allegations is the audiotape of the con-
versation made by Farley. Although parts of the recording are
inaudible and Farley admittedly did not record the first 5 min-
utes of the conversation, I find that the recording accurately
reflects those statements that are relevant to the complaint.
Moreover, Kuhn essentially admitted, after listening to the
recording, that he made the statements attributed to him. Thus,
I find that Kuhn told Farley that the Respondent “is a non-union
company and will be a non-union company. If people want to
be in the Union, then they need to go to another company to
work.” I find that Kuhn also told Farley that he already had a
partner and that was the only partner he would have and the
only contract he would sign.
The General Counsel alleges that these statements amounted
to statements of futility that are unlawful under the Act. The
Respondent argues that the statements, when considered in the
context of the entire conversation, were lawful expressions of
opinion protected by Section 8(c) of the Act. As noted above,
the Board applies an objective test to determine whether em-
ployer statements would reasonably tend to interfere with, re-
strain, or coerce employees in exercising their statutory rights.
In making this determination, words must be considered in
context, but the realities of the economic relationship between
employer and employee can not be ignored. NLRB v. Gissel
Packing Co., supra. In Rossmore House, the Board, in discuss-
ing the lawfulness of employer questioning of employees,
stated generally that “to fall within the ambit of Section 8(a)(1),
either the words themselves or the context in which they are
used must suggest an element of coercion or interference.” 269
NLRB 1176, 1177 (1984). The Respondent also argues in its
brief that the statements made by Kuhn are not coercive be-
cause they were elicited by a union “salt” who would not be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1242
threatened by such remarks. The Board has rejected such ar-
guments in the past. See Miller Electric Pump & Plumbing,
supra at 824.
The Board, in Ready Mix, Inc.,12 rejected the General Coun-
sel’s claim that an employer made an unlawful statement of
futility when its operations manager, in response to questions
from employees, told the employees on several occasions that
the employer was not union and had no plans to go union. The
Board noted that, in making these statements, the manager
never stated or implied that the employer intended to ensure its
nonunion status through discriminatory or coercive means. The
Board contrasted the relatively innocuous statements there with
the situation found to be unlawful in Wellstream Corp.,13 where
the company president told employees that “no [s.o.b.]” would
bring a union into the company and he would see to it that the
company was never unionized. 337 NLRB at 1190–1191. In
Miller Electric Pump & Plumbing, supra, the Board found
unlawful an employer’s statement to a union business agent, in
the presence of a prospective “salt,” that the organizer was
“wasting his time” trying to organize the employees. In that
case, the Board noted that the statement was made in the con-
text of threats to close the business in the event of unionization.
The “waste of time” statement, in such a context, amount to an
unlawful statement of futility. 334 NLRB at 825.
The Board has also addressed statements similar to Kuhn’s
statement at issue here that people that want to be in the union
need to go to another company to work. In JS Mechanical,
Inc.,14 the Board recently dismissed an allegation that an em-
ployer violated the Act when its superintendent said to a group
of union “salts” wearing union hats, who were seeking to apply
for work, “why would you want to [apply for work]; we’re an
open shop . . . I can see by the gentleman’s hat he’s a union
worker.” The Board concluded that such a statement merely
expressed surprise that a union member would be interested in
working for a nonunion company and was not coercive. See
also Colden Hills, Inc., 337 NLRB 560 (2002) (statement by
employer that she did not think union members could work for
a nonunion company was not unlawful because, taken in con-
text, it merely conveyed the employer’s belief that union rules,
rather than employer action, precluded union members em-
ployment with the employer). In contrast, the Board found an
employer’s statement, during an unlawful interrogation of an
employee identified in a union flyer as a union organizer, that
the employee should not be working for the respondent if he
was a union member, violated the Act. Arlington Electric, Inc.,
332 NLRB 845 (2000). See also McDaniel Ford, 322 NLRB
956 fn. 19 (1997) (company president’s statement in a meeting
that “if employees were unhappy, should look for jobs some-
place else” unlawful).
The above cited decisions by the Board suggest that whether
statements like those at issue here are coercive turns on the
context within which they are made and whether it can be said
that the statements reflect the respondent’s intent to try to re-
main union free through unlawful means. I find that Kuhn’s

12 337 NLRB 1189 (2002).
13 313 NLRB 698, 706 (1994).
14 341 NLRB 353 (2004).
statements, when considered in the context of Alderman’s ear-
lier statements to Farley and Dix, were unlawful. Although the
conversation between Kuhn and Farley was amiable and Kuhn
repeatedly assured Farley that it made no difference to him
whether Farley was union or not, his statement that anyone who
wanted to work union had better find work elsewhere conveys
the impression that union membership was incompatible with
continued employment by the Respondent. This impression
would be buttressed by Alderman’s previous warning that
Kuhn would rather close the business than go union. Taken as
a whole, Kuhn’s statements on June 25 are closer to those
found unlawful in Miller Electric Pump & Plumbing, supra,
and Arlington Electric, supra, than the harmless noncoercive
expressions of opinion found lawful in Ready-Mix, Inc., supra,
and JS Mechanical, supra. Accordingly, I find that the Re-
spondent violated Section 8(a)(1) of the Act, as alleged in the
complaint, by making statements of futility and by telling an
employee that he should work for another company if he
wanted to be union.
There is no dispute that the Respondent laid off Farley on
June 25, the same day that Kuhn and Farley spoke about the
Union for the first time. Although I credited Kuhn’s testimony
that he informed Farley that he was being laid off before Farley
initiated the conversation by advising Kuhn that he was a union
member sent to organize the Respondent’s employees, Kuhn
admitted that he already was aware of Farley’s organizing ac-
tivities based on reports he received from Alderman and others.
In fact, Kuhn admitted having this knowledge before he made
the decision to lay Farley off. Thus, the General Counsel has
established the first two elements of his Wright Line burden,
protected activity and knowledge. The independent 8(a)(1)
violations found above, committed through Alderman and
Kuhn, are sufficient to establish the Respondent’s antiunion
animus, another element of the General Counsel’s case. Naomi
Knitting Plant, supra. The timing of Farley’s layoff, soon after
the Respondent learned of his union organizing activities, in the
context of the Respondent’s animus, is enough to convince me
that the General Counsel has met his initial burden of proving
that Farley’s union activity was a motivating factor in Kuhn’s
decision to lay him off. The burden thus shifts to the Respon-
dent to prove that it would have laid Farley off on June 25 even
in the absence of any union activity.
Kuhn specifically denied that Farley’s union activity moti-
vated the decision to lay him off. The Respondent contends
that Farley was laid off due to lack of work as the Respondent
caught up with the phase of the project for which Farley had
been hired. The Respondent notes that Farley apparently
agreed that his lay off was for lack of work by writing this
down as the reason for his unemployment when he filed for
benefits with the State of West Virginia. Kuhn, in his testi-
mony, explained that he chose Farley for lay off because he
was one of the highest paid employees at Greenbriar and be-
cause he was the last hired. Kuhn conceded that the raise he
gave to Farley about a week before the lay off made him one of
the highest paid employees on the job. Nevertheless, Kuhn did
not advise Farley when he asked for a raise that this might
jeopardize his continued employment and he did not offer Far-
ley the opportunity to continue working without the raise.
K. W. ELECTRIC, INC. 1243
Kuhn’s contention that Farley was the last hired is contra-
dicted by position letters submitted to the Board’s Regional
Office during the investigation which show that Dix’ date of
hire was 1 day after Farley’s date of hire. Kuhn’s testimony
that Dix started working the day after Farley but was “hired” 2
weeks earlier is not supported by any documentary evidence.
The Respondent could have offered into evidence Dix’ em-
ployment application which may have shed light on when he
applied or was hired, but it did not do so. All the Respondent
relied upon to prove this point was Kuhn’s testimony, which
included hearsay testimony that Dix said he needed to give his
former employer 2 weeks’ notice. In the absence of any cor-
roborating evidence, I am reluctant to credit Kuhn’s testimony
in this regard. I also note that the Respondent never mentioned
this fact in any of the four position letters it submitted during
the investigation.
The Respondent also offered no evidence, other than Kuhn’s
testimony, in support of its contention that there was a lack of
work at the time of Farley’s layoff. The position letters submit-
ted during the investigation contain some contradictory evi-
dence. The summaries attached to these letters show, for ex-
ample, that no other employee was laid off from the Greenbriar
job until Dix was laid off on August 29, 3 months later.15
These summaries also show that the Respondent hired a new
employee, Sargent, on July 14, within 3 weeks of Farley’s lay-
off, and that employees at Greenbriar had been working over-
time shortly before the layoff.
Having considered the evidence in the record and the parties’
arguments, I must conclude, albeit reluctantly, that the Respon-
dent has not met its burden of rebutting the General Counsel’s
case. Although the Respondent had the opportunity to docu-
ment its case that Farley’s layoff was necessitated by business
reasons unrelated to his union activity and would have occurred
even absent that activity, the Respondent instead chose to rely
on Kuhn’s unsupported testimony which was not entirely con-
sistent with positions taken previously. I agree with the Re-
spondent that Farley would have been laid off eventually as
work on the Greenbriar job wound down. However, I cannot
agree that he would have been laid off on June 25, within days
of openly trying to organize the Respondent’s employees, had

15 The summary attached to the September 20 position letter does
show that two employees, Berger and McLoud, were laid off on July 4
and July 25, respectively. However, the reason stated for these two
layoffs was “medical/lack of work.” The Respondent offered no other
evidence to show that these two layoffs were attributable to a decline in
work at the Greenbriar job.
he not engaged in that activity. Accordingly, I find that the
Respondent’s June 25 lay off of Farley was discriminatorily
motivated, as alleged in the complaint, and thus violated Sec-
tion 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. By telling employees that the Respondent would rather
close than go union, that the Respondent was and would remain
nonunion, and that employees who wanted the Union should
work for another company, the Respondent has made state-
ments of futility and engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. By terminating Joe Farley on June 25, 2003, because he
engaged in union organizing activities on behalf of Interna-
tional Brotherhood of Electrical Workers, Local 466, AFL–
CIO, the Respondent discriminated against its employees and
engaged in an unfair labor practice affecting commerce within
the meaning of Section 8(a)(1) and (3) and Section 2 (6) and (7)
of the Act.
3. The Respondent’s May 30, 2003 termination of Michael
McLean and the statements of Michael Woodson that day did
not violated the Act as alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). The evidence in the record indicates that Farley would
have been laid off in any event as the Respondent’s Greenbriar
job finished. I shall leave to the compliance stage of the pro-
ceedings a determination as to precisely when Farley’s em-
ployment would have ended in the ordinary course and whether
he would have been offered work at any other jobs the Respon-
dent may have had. See Casey Electric, Inc., 313 NLRB 774
(1994); Dean General Contractors, 285 NLRB 573 (1987).
[Recommended Order omitted from publication.]