McClendon Electrical Services

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 613 (N.L.R.B. 2003)

MCCLENDON ELECTRICAL SERVICES 613
McClendon Electrical Services, Inc. and International
Brotherhood of Electrical Workers, Local 520.
Case 16–CA–22434
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
On May 13, 2003, Administrative Law Judge William
N. Cates issued the attached bench decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs.
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 and
to adopt the recommended Order as modified.2
In its exceptions, the Respondent contends that had the
judge properly analyzed the case under Wright Line,3 he
would not have found that the Respondent violated Sec-
tion 8(a)(1) of the Act by discharging employee Dan
Elgin for participating in a picket line established by the
Union to protest alleged unfair labor practices of the Re-
spondent. For the following reasons, there is no merit to
the Respondent’s contentions.
Initially, we find that the General Counsel has satisfied
his burden under Wright Line, supra, of showing that
Elgin’s protected conduct was a substantial or motivating
factor in the Respondent’s decision to discharge him.
Thus, the General Counsel has established that Elgin was
engaged in protected activity when he participated in the
Union’s picketing of the Respondent and that the Re-
spondent knew of Elgin’s protected activity.4 The Gen-

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.
The Respondent also contends that some of the judge’s findings call
into question the judge’s impartiality. Upon careful examination of the
decision and the record we are satisfied that this contention is without
merit.
2 We shall modify the judge’s recommended Order and substitute a
new notice to correct inadvertent errors and omissions.
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).
4 The record shows that Project Manager Bobby Sanford told Com-
pany President Mike McClendon that Elgin had left the worksite to join
the picketing at the Company’s entrance.
eral Counsel has also shown that the Respondent har-
bored animus against Elgin’s protected activity, as evi-
denced by its unlawful threat to him and other employ-
ees.5 In addition, the timing of Elgin’s discharge, the day
after he participated in the picketing, supports a finding
of unlawful motive.6 Finally, the termination notice it-
self, stating under “Description of the Incident” that El-
gin “left the job without reason,” further demonstrates
the nexus between the protected activity and the dis-
charge.
Accordingly, under Wright Line, supra, the burden
shifted to the Respondent to demonstrate that it would
have discharged Elgin even in the absence of his pro-
tected conduct. The Respondent argues essentially that
Elgin would have been terminated in any event for two
reasons: (1) he failed to give notice to his supervisor be-
fore leaving the worksite; and (2) poor work perform-
ance.
As to (1), the Board has held that the Act generally
does not require employees to give notice to their em-
ployer before ceasing work in connection with a labor
dispute. International Protective Services, 339 NLRB
701, 702 (2003). Therefore, Elgin’s failure to give such
notice here does not afford the Respondent a lawful basis
for discharging him.
As to (2), we note that Elgin’s disciplinary notice
stated that he was being discharged for “failure to com-
plete shift” and “insubordination.” McClendon ex-
plained that the “failure to complete shift” was Elgin’s
5 In its exceptions, the Respondent argues that it did not violate Sec.
8(a)(1) of the Act by threatening employees with unspecified reprisals.
The Respondent asserts, inter alia, that the judge mischaracterized
employee Dan Elgin’s testimony when the judge found that Project
Manager Sanford “called the employees together” and said, “If anyone
left the job, he would send them to the shop and let them deal with it.”
The Respondent argues that there is no evidence that Sanford called the
employees together, and that, in fact, the testimony shows that Sanford
was operating the backhoe equipment when he made the remark to the
employees.
We find, in agreement with the judge, that Sanford made the state-
ment attributed to him by Elgin, and that even if, as contended by the
Respondent, Sanford did not actually call the employees together to
make the statement, the comment was heard by the employees and was
nonetheless coercive. Sanford made the remark to the employees a few
hours after Elgin participated in the Union’s picketing, and the remark
was clearly a reference to employee participation in the picketing.
Because the employees were aware that Sanford previously had sent
employees to the shop for disciplinary reasons, we find that the com-
ment implied that some form of disciplinary action would result from
participation in picketing activity. Accordingly, we find that this com-
ment had a reasonable tendency to coerce and intimidate employees in
the exercise of their Sec. 7 rights, and thereby violated Sec. 8(a)(1) of
the Act.
6 The Board has held that where adverse action occurs shortly after
an employee has engaged in protected activity, an inference of unlawful
motive is raised. La Gloria Oil, 337 NLRB 1120 (2002), enfd. mem.
71 Fed. Appx. 441 (5th Cir. 2003) (Table).
340 NLRB No. 73
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
absence from the job while on the picket line and that the
“insubordination” was Elgin’s thinking he could come
and go from the jobsite as he pleased without notifying
his supervisor. As discussed above, Elgin’s absence
from the job while on the picket line was protected by
the Act, and he had the right to take this action without
giving advance notice to the Respondent. Therefore,
neither reason the Respondent asserted at the time of
discharge constituted a lawful ground for taking adverse
action against Elgin.
At the hearing, McClendon added several additional
reasons for discharging Elgin: (1) he was in a 90-day
probationary period; (2) his work was slow/lethargic and
generally not good; and (3) he had some absences and
was late a couple of times. These deficiencies, however,
were not contained in the disciplinary notice, which set
forth the other grounds discussed above. “The Com-
pany’s vacillation and the multiplicity of its alleged rea-
sons for firing [the employee] render its claims of non-
discrimination the less convincing.” NLRB v. Schill Steel
Products, 340 F.2d 568, 573 (5th Cir. 1965). Indeed,
“[s]uch shifting assertions strengthen the inference that
the true reason was for [protected] activity.” Abbey’s
Transportation Services v. NLRB, 837 F.2d 575, 581 (2d
Cir. 1988).
Based on the above, we find that the Respondent has
not met its Wright Line burden of showing that it would
have discharged Elgin even in the absence of his pro-
tected conduct. Accordingly, we agree with the judge
that the Respondent violated Section 8(a)(1) of the Act
by discharging Elgin.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
McClendon Electrical Services, Inc., Round Rock,
Texas, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(a) and reletter
the subsequent paragraphs.
“(a) Threatening employees with unspecified reprisals
if they participate in concerted activities protected by the
Act.”
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
“(b) Make Dan Elgin whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of this decision.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX C

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 any 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 our employees with unspeci-
fied reprisals if our employees participate in concerted
activities protected by the Act.
WE WILL NOT discharge our employees because
they engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
in order to discourage employees from engaging in such
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Dan Elgin full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position without prejudice to his senior-
ity or any other rights or privileges he previously en-
joyed.
WE WILL make Dan Elgin whole for the loss of earn-
ings and other benefits he suffered as a result of the dis-
crimination against him, with interest.
WE WILL, within 14 days of the date of the Board’s
Order, remove from our files any reference to Dan El-
gin’s unlawful discharge and WE WILL, within 3 days
thereafter, notify Elgin in writing that this has been done
and that evidence of this unlawful discharge will not be
used against him in any way.

MCCLENDON ELECTRICAL SERVICES,
INC.

MCCLENDON ELECTRICAL SERVICES 615
Jamal Allen, Esq., for the General Counsel.
Frank L Carrabba, Esq. and Jennifer J. Cooper, Esq., for the
Respondent.
David Van Hass, Esq., for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is
an interfering with employee rights and wrongful discharge
case. At the conclusion of trial in the above-styled case in Aus-
tin, Texas, on April 25, 2003, and after hearing closing argu-
ment by counsel, I issued a bench decision pursuant to Section
102.35(a)(10) of the National Labor Relations Board’s (Board)
Rules and Regulations setting forth findings of fact and conclu-
sions of law.
For the reasons stated by me on the record at the close of the
trial, I found McClendon Electrical Services, Inc. (Company)
violated Section 8(a)(1) of the National Labor Relations Act, as
amended (Act) on or about December 17, 2002, by threatening
its employees with unspecified reprisals if the employees par-
ticipated in a picket organized by the International Brotherhood
of Electrical Workers, Local 520 (Union), and by on or about
December 18, 2002, discharging its employee Dan Elgin (El-
gin) because he engaged in concerted activities protected by
Section 7 of the Act, namely he participated in a picket line
established at the Company by the Union. I further concluded
Elgin did not lose the protection of the Act by any conduct on
his part. See: Phoenix Transit System, 337 NLRB 510 (2002);
and Felix Industries, 331 NLRB 144, 146 (2000).1
I certify the accuracy of the portion of the transcript, as cor-
rected,2 pages 166 to 182 containing my bench decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSION OF LAW
Based on the record, I find the Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, that it violated the Act in the particulars and
for the reasons stated at trial and summarized above and that its
violations have affected and, unless permanently enjoined, will
continue to affect commerce within the meaning of Section 2(2)
and (6) of the Act.
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act. The Company having discriminatorily
discharged its employee Dan Elgin, I recommend he, within 14
days from the date of the Board’s Order, be offered full rein-
statement to his former job, or if his former job no longer exists

1 In light of my finding that Elgin’s discharge violated Sec. 8(a)(1), I
found it unnecessary to decide whether it also violated Sec. 8(a)(3).
See: Phoenix Transit System, supra at fn. 3).
2 I have corrected the transcript pages containing my bench decision
and the corrections are as reflected in Appendix C (omitted from publi-
cation).
to a substantially equivalent position, without prejudice to his
seniority, or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings or other benefits
suffered as a result of the discrimination against him with inter-
est. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and interest shall be
computed in accordance with New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following3
ORDER
The Company, McClendon Electrical Services, Inc, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in concerted
activities for the purpose of collective bargaining or other mu-
tual aid or protection, and in order to discourage employees
from engaging in such concerted activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the date of the Board’s Order offer
Dan Elgin reinstatement to his former position or if his former
position no longer exists to a substantially equivalent position
without prejudice to his seniority or other rights or privileges.
(b) Within 14 days of the Board’s Order remove from its
files any reference to Elgin’s unlawful discharge and within 3
days thereafter notify him in writing this has been done and that
his discharge will not be used against him in any manner.
(c) Preserve, and within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of any back-
pay due under the terms of this Order.
(d) Within 14 days after service by the Regional Director of
Region 16 of the National Labor Relations Board, post at its
Round Rock, Texas facility copies of the attached notice
marked “Appendix B.”4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 16 after being signed
by the Company’s authorized representative shall be posted by
the Company and maintained for 60 consecutive days in con-
spicuous places, including all places where notices are custom-
3 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 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-
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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
arily posted. Reasonable steps shall be taken to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that during the pendency of these proceedings
the Company has gone out of business or closed the facility
involved in these proceedings, the Company shall duplicate and
mail, at its own expense, a copy of the Notice to Employees, to
all employees employed by the Company on or at any time
since December 17, 2002.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 16 of the National Labor Rela-
tions Board sworn certification of a responsible official on a
form provided by the Region attesting to the steps that the
Company has taken to comply.

APPENDIX A
166

This is my decision in the matter of McClendon Electrical
Services, Inc., herein, Company, Case 16–CA–22434.
First, I wish to take this opportunity to thank counsel for the
presentation of the evidence. You are a credit to the party you
represent. It has been a pleasure being in Austin, Texas.
This is an unfair labor practice case prosecuted by the Na-
tional Labor Relations Board, herein, Board; General Counsel,
herein, Government Counsel, acting through the Regional Di-
rector for Region 16 of the Board following an investigation by
Region 16’s staff. The Regional Director for Region 16 of the
Board issued a complaint and notice of hearing, herein, com-
plaint, on February 28, 2003 based upon an unfair labor prac-
tice charged filed by International Brotherhood of Electrical
Workers, Local 520, herein, Union or Charging Party, on De-
cember 18, 2002 and amended on February 7, 2003.
Certain facts herein are admitted, stipulated or undisputed. It
is essential that I state certain of those facts at this point in my
bench decision, which I now do.
It is admitted the Company is a Texas corporation with an
office and place of business in Round Rock, Texas, where it has
been engaged as an electrical contractor in the construction
industry performing commercial and residential construction.
During the 12 months preceding issuance of the complaint
herein, a representative period, the Company in conducting its
business

167

operations purchased and received goods valued in excess of
$50,000 directly from firms inside the state of Texas, which
firms had in turn purchased and received such goods directly
from suppliers located outside the state of Texas.
The parties admit the evidence establishes and I find the
Company is an Employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the National Labor Re-
lations Act as amended, herein, Act. The parties admit and I
find the Union is a labor organization within the meaning of
Section 2(5) of the Act.
The parties admit and I find that Company owner Michael
McClendon, herein, Owner McClendon, and project managers
Bobby Sanford, Melvin Rowan and Dan Wyrick are supervi-
sors and agents of the Company within the meaning of Section
2(11) and (13) of the Act.
The specific complaint allegations are that: On or about De-
cember 18, 2002, the Company discharged its employee, Dan
Elgin, herein, Elgin, because he assisted the Union and engaged
in union and protected concerted activities and to discourage
employees from engaging in those activities. It is alleged the
Company’s actions violate Section 8(a)(1) and (3) of the Act.
It is also alleged that the Company, by supervisor and agent
Project Manager Sanford on or about December 17, 2002,
threatened employees with unspecified reprisals if the employ-
ees participated in a picket organized by the Union. The Com-
pany admits

168

it discharged Elgin on December 18, 2002 but denies it violated
the Act in any manner alleged in the complaint.
This case, unlike most cases, essentially requires no credibil-
ity resolutions. In arriving at the facts, I carefully observed the
two witnesses as they testified, and I utilized such in arriving at
the facts herein that I rely on. I have considered both wit-
ness[es]’ testimony in relation to each other’s testimony and in
light of the exhibits presented herein.
If there is any evidence that might seem to contradict the
credited facts that I rely on, I have not ignored such evidence
but, rather, have discredited it or rejected it as not reliable or
trustworthy. I considered the entire record in arriving at the
facts herein.
The Company, which is an electrical contractor in the resi-
dential and commercial construction industry, employs ap-
proximately 40 to 50 employees, with eight to ten office em-
ployees plus management and supervision. The construction
projects that are pertinent to this particular case are located in
and around the Austin and Round Rock, Texas, areas.
The Company employs all types of licensed and unlicensed
employees, those with experience and those without prior ex-
perience. However, anyone doing electrical work in the geo-
graphic area concerned herein must have an apprentice license.
The Company requires all employees to proceed through a

169

90-day probationary period. During the 90-day probationary
period, the employees do not receive benefits such as health
insurance. Employees are evaluated closely during their 90-day
probationary period, where the employee sees if the employee
wishes to work for this Company and the Company has an op-
portunity to evaluate the potential of the probationary employee
to becoming a permanent employee.
According to Company President McClendon, Elgin tele-
phoned the Company two or three times before he came for an
interview, stating each time he had heard this was a good com-
pany to work for and that he, Elgin, was interested in working
for the Company. Thereafter, Elgin came for an interview and
was hired as an apprentice electrician on September 25, 2002.
Elgin worked at various projects for the Company. The Com-
pany’s normal work day starts at 7:00 a.m. Elgin was given a
disciplinary warning on December 13, 2002 for arriving at
MCCLENDON ELECTRICAL SERVICES 617
work 45 minutes late on December 9, 2002. Elgin signed the
warning but indicated on it that he, “Protested this write-up.”
Elgin wore a Union organizer’s shirt to this December 13,
2002 meeting with Company President McCLendon. In fact,
Elgin stated he wore a Union shirt or cap on numerous occa-
sions while working at the Company.
Elgin testified that on Friday, December 13, 2002, he was
told by management to report to a project at Maxwell Dodge in

170

Austin, Texas, on Monday, December 16, 2002, where he
would report for and work under the supervision of project
manager Sanford. Elgin, however, did not report for work on
December 16, 2002 as directed but, rather, left a voice mail
message with the Company that he would not be at work on
that day. Elgin testified he was sick on that particular Monday.
Elgin testified he reported at 7:00 a.m. to the Company shop
on December 17, 2002 to see where he was to work that day.
Elgin was sent to the Maxwell Dodge project, where he re-
ported at approximately 8:00 a.m. According to Elgin, ap-
proximately five employees were present at the job site and he
assisted helper Dominic Garcia commencing at approximately
8:00 a.m.
Elgin and Garcia loaded a Company truck with materials
cleaned up from the wet, muddy work site. The materials the
two of them cleaned up from the area included PBC pipe
pieces, pipe fittings, debris from around concrete pourings and
the like. The two of them unloaded the Company truck and
loaded it a second time. The employees took a break from
approximately 9:00 a.m. until approximately 9:15 a.m.
Elgin testified a number, perhaps ten to 20, individuals were
picketing at the entrance to the work site. According to Elgin,
Garcia told him, “Hey, it’s your brothers over there,” picketing.
Elgin noticed those picketing and, upon closer examination,
noticed they were picketing with signs that said, “McClendon
Unfair Labor

171

Practices.” Elgin stated several unfair labor practice charges
had been filed by the Union against the Company and they
involved him. Elgin told Garcia he was going to join the pickets
and invited Garcia to join him in doing so. One of those picket-
ing that morning was Union organizer Robert Beeler.
Elgin obtained a picket sign from the Union and joined those
picketing. Elgin testified the picketing took place on a road
easement at the corner of Texas State Highway 620 and a side
street in front of the Company’s construction project at the
Maxwell Dodge work project in Austin, Texas. Elgin testified
he picketed with the others from 10:30 a.m. until 11:15 a.m. on
December 17, 2002.
Elgin said he did not notify project manager Sanford of his
whereabouts because Sanford was not at the job site when he,
Elgin, joined the picket line. Elgin testified that about 30 min-
utes after he joined the others on the picket line, project man-
ager Sanford drove up and parked his truck approximately 40
feet from the picket site. According to Elgin, project manager
Sanford walked over to the picket line and, within 15 feet of
where Elgin was, spoke with some of those on the picket line.
Elgin testified they stopped picketing at approximately 11:15
a.m. and he placed the picket sign he had been carrying in his
truck and returned for work. Elgin testified he told project
manager Sanford, “I am ready to work; What can I

172

do” Elgin explained to Sanford that he had been honoring the
picket line but was now ready to return to work and specifically
asked what he could do; according to Elgin, Sanford pointed for
him to go to where two other employees were working.
Elgin worked from approximately 11:15 a.m. until 11:30
a.m., at which time he and the other employees left the job site
for their 45-minute lunch break, which ran from 11:30 a.m.
until 12:15 p.m. Elgin testified that after returning from lunch
break, he helped fill in some PBC pipe.
Project manager Sanford called the employees together after
lunch and, according to Elgin, told them, “If anyone left the
job, he would send them to the shop and let them deal with it,”
and then told the employees to, “Get back to work.” Elgin
worked until quitting time, at 4:30 p.m., that day and left.
Elgin reported for work at approximately 6:50 a.m. on De-
cember 18, 2002 and picketed at the Company for approxi-
mately five minutes or until he reported for work at the 7:00
a.m. starting time. Elgin testified he worked until approxi-
mately 8:15 a.m., at which time project manager Sanford told
him he was to report to the shop. Elgin asked why he had to
report to the shop, and Sanford told him, “Because I told you
to.”
Elgin testified he reported to the shop about 45 minutes later,
where he met with Company President McClendon along with
project managers Rowan and Wyrick. Elgin testified he was
given

173

a disciplinary notice which indicated he was being discharged
for, “Failure to complete shift, and, “Insubordination.”
The portion of the dismissal notice labeled, “Description of
Incident,” read that the employee had left the job without rea-
son. Elgin testified he asked Company President McClendon if
he could explain insubordination and McClendon responded it
was because Elgin left work and was arrogant. Elgin was told
his final check would be mailed to him, and he left the Com-
pany shop at that time.
Company President McClendon testified Elgin worked at a
number of the projects of the Company but was a disappoint-
ment as to his work potential. McClendon testified the first
project Elgin worked at was the Lack’s Furniture project under
the supervision of project manager Dale Davis, where he
worked for approximately five to six weeks. Company Presi-
dent McClendon testified project manager Davis reported to
him that Elgin was a slow worker with not much mechanical
aptitude.
Company President McClendon stated Elgin worked next on
the Southwest University project under the supervision of project
manager Luke Benedetti and Kris Kowalik, K-O-W-A-L-I-K.
Project manager Benedetti reported to Company President
McClendon that Elgin was a lethargic, slow worker to whom he
had to continually repeat instructions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
Company President McClendon testified that when he met

174

with Elgin on December 13, 2002 to give him a warning for
being late to work on December 9, 2002, Elgin told him he felt
threatened by project manager Benedetti. Elgin had been on
the ground when some mention was made by Benedetti of put-
ting his knife up so he did not drop it on Elgin. Company
President McClendon stated he knew an unfair labor practice
charge had been filed on that incident and he reassigned Elgin
to a different job site so Elgin would not come in contact with
Benedetti.
According to Company President McClendon, Elgin did not
show for work on Monday, December 16, 2002 but called and
left a message on the Company’s voice mail that he would not
be at work on that day but did not say why. Company Presi-
dent McClendon testified that when project manager Sanford
was away from the Maxwell Dodge work site on Tuesday
morning, December 17, 2002, he left journeyman Chris Tanner
in charge. Company President McClendon explained that the
City of Austin, Texas, by regulation requires that a journeyman
be present on all work sites at all times.
Company President McClendon testified he made the deci-
sion to terminate Elgin and did so for the following reasons:
One, Elgin was in his 90-day probationary period; Two, Elgin’s
work performance was not good generally, and he was slow;
Three, Elgin had absences other than those discussed, and he
was late a couple of times; Four, Elgin was arrogant, thinking
he could

175

come and go from work as he pleased, and; Five, the last straw
was when he left the job on December 17, 2002 without telling
his supervisor.
Company President McClendon denied Union or picketing
activities by Elgin had anything to do with his discharge.
McClendon recalled a number, perhaps as many as eight, em-
ployees who worked or had worked for his Company that were
Union sympathizers. Specifically, McClendon knew Philip
Lawhon was a Union sympathizer. And even after he learned
of that fact and, based upon Lawhon’s job performance, he
gave Lawhon a $3-per-hour pay raise.
Company President McClendon acknowledged that when
project manager Sanford told him about Elgin’s leaving the job
on December 17, 2002, Sanford told him Elgin had left to join
the pickets at the Company’s entrance. Company President
McClendon explained employees were sent to the Company
shop for him to deal with when the project manager had,
“Something he didn’t feel comfortable with.”
Did the Company violate the Act in any manner, as alleged
in the complaint, by its actions on December 17 and 18, 2002?
First, did project manager Sanford threaten the employees with
unspecified reprisals if the employees participated in a picket
organized by the Union? The Government would contend that
Sanford’s comments about sending anyone to the shop taken
[in] its context would constitute an unlawful threat of reprisals
of an

176

unspecified nature. The Union would join in the Government’s
position.
The Company takes the position that the comment was vague
and was really in keeping with the practice that the Company
had followed in the past in that when a project manager felt
uncomfortable with whatever discipline or other action that
might be need taken, the individual was simply referred to the
Company shop. I’m fully persuaded that in the context herein,
Sanford’s comments, which I find were made, had a reasonable
tendency to coerce and intimidate employees in the exercise of
their Section 7 rights.
There had been picket line activity at the Company’s en-
trance that morning. At least one employee, namely Elgin, had
participated in the picketing from 10:30 a.m. until 11:15 a.m.
Thereafter, the employees went to lunch, from 11:30 to 12:15.
And shortly thereafter or at the first available opportunity, pro-
ject manager Sanford told the employees that if anyone left the
project, they would be sent to the Company shop and let them
be dealt with there.
The shop was where project managers sent employees for
matters they, the project managers, did not feel comfortable
with. It was the seat of power for this Company, where Com-
pany President McClendon could and had on numerous occa-
sions disciplined employees. For example, McClendon had
disciplined employee James Ruben Hernandez on numerous
occasions at the job

177

office. By the fact that project manager Sanford made his
comments almost immediately after picketing activity, it is
clear the two were tied together and his comments constituted a
threat of unspecified reprisals, and I so find.
Next, did the Company violate the Act when Company
President McClendon discharged employee Elgin on December
18, 2002, and what standard of analysis should be applied? The
Government contends, as does the Union, that Elgin was par-
ticipating in picketing that was taking place at the Company.
The Government and Union would contend that the picket-
ing was valid both as to its purpose and in the carrying out of
the picketing and that when Elgin joined the picketing, he was
participating in concerted protected activity. They would also
contend that the analysis that need be followed would not be
the Wright Line analysis but, rather, would simply be that if the
employee’s participation in the picketing constituted protected
concerted activity, the only issue left to be decided was whether
the individual engaged in any conduct that would remove the
protection of the Act from him.
The Company, on the other hand, would contend that this
case would be analyzed under the Wright Line cases and that
although the Company appears to concede that a prima facie
case had been established, it very strongly contends that it has
met its burden of demonstrating that Elgin’s discharge would
have

MCCLENDON ELECTRICAL SERVICES 619
178

taken place notwithstanding any protected concerted activity on
Elgin’s part.
It is clear from the evidence that the basis for Elgin’s dis-
charge was in part and in substantial part, if not in whole, from
his picketing activities at the Company on the morning of De-
cember 17, 2002. The written notice of dismissal states it was
because Elgin, “Left the job without reason,” and it is acknowl-
edged he left the job to join the picketing taking place that
morning.
Company President McClendon testified to a number of rea-
sons for Elgin’s discharge but only listed, “Failure to complete
his shift on December 17, 2002,” and his, “Insubordination,” on
his dismissal notice. McClendon explained that the insubordi-
nation was Elgin’s thinking he could come and go from the job
site as he pleased without notifying his supervisor and that his
failure to complete his shift on that day was that he was away
from his job on the picket line.
Does a Wright Line, 251 NLRB 1083 (1980), enforced 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U. S. 989, (1982)
analysis apply herein? A Wright Line analysis is appropriately
used in cases that turn on an Employer’s motivation. The
Wright Line analysis is not the appropriate vehicle for an analy-
sis where the employee is discharged for protected concerted
activity. See Phoenix Transportation System, 337 NLRB [510]

179

(2002).
Here it is clear the Company discharged Elgin because he
participated in a picket established by the Union at the Com-
pany. It is just as clear that Elgin’s conduct was activity pro-
tected by the Act. The Supreme Court noted in NLRB v. City
Disposal Systems, 465 U.S. 822, 831 (1984) that Section 7 of
the Act, “Defines both joining and assisting labor organiza-
tions’ activities in which a single employee can engage as con-
certed activities.”
Accordingly, when an individual assists a union or engages
in union-related activity, by definition, he is engaged in con-
certed activity. See Tradesman International, Inc., 332 NLRB
[1158] (2000.). Picketing is a concerted activity within the,
“Mutual aid or protection,” language of Section 7 of the Act.
When Elgin left his work at the Company to join the Union’s
picketing near the entrance to the Company’s work area, he was
demonstrating his support for and assistance to the Union. The
objective of the Union’s picketing was to protest alleged unfair
labor practices of the Company. Picketing to protest unfair
labor practices is protected activity under Section 7 of the Act.
The fact the unfair labor practice charges alleging unfair la-
bor practices of the Company herein were withdrawn or even

180

without merit does not detract from Elgin’s right to protest
what he perceived were unfair labor practices of the Company.
There is a clear nexus between Elgin’s picketing activity and
legitimate employment-related concerns, that is; the perceived
unfair labor practices of the Company.
In the circumstances of this case, there is no requirement that
Elgin give the Company notice that he was going to join the
pickets in order to preserve his Section 7 protections. Elgin in
this particular situation would have been unable to give his
project manager notice even if he as a courtesy had wished to,
because project manager Sanford was not present when Elgin
joined the picketing activity.
Thus the only issue is whether Elgin’s activities lost the pro-
tection of the Act, as asserted by the Company, because he left
work or was arrogant. Stated differently, did Elgin’s conduct
cross the line from protected to unprotected? It did not. I am
fully persuaded his conduct did not lose the protection of the
Act. Accordingly, his discharge violated Section 8(a)(1) of the
Act, and I so find. In light of my finding that his discharge
violated Section 8(a)(1) of the Act, I find it unnecessary to
decide whether it also violated Section 8(a)(3) of the Act.
In finding that Elgin’s discharge violated the Act, I am not
finding he is an exemplary employee; the evidence establishes
he is a slow, lethargic worker who on occasion has trouble
timely reporting for work or, at least, was disciplined

181

for such without challenge. What I am finding is that the rea-
son the Company discharged him was an unlawful one.
The evidence establishes to the Company’s credit that it has
certain family-friendly labor policies in that it has given great
consideration to the personal problems of its employees. For
example, one employee, a single parent who has four young
daughters and has been late for work on numerous occasions is
still retained by the Company. However, the concerns for spe-
cial circumstances given to certain employees or having family-
friendly labor policies will not insulate the Company from dis-
charging an employee for unlawful reasons.
Even if I found that the Wright Line analysis was applicable
herein, which I do not, I would even under that analysis find the
Company violated the Act when it discharged Elgin. Under the
Wright Line analysis, I would find that the Government estab-
lished by preponderant evidence that Elgin was engaged in
protected activity, that the Company was aware of that activity
and that the Company discriminated against Elgin in the terms
of his employment and that Elgin’s activity was a substantial or
motivating reason for the Company’s action.
I would also conclude that there was a causal connection be-
tween the Company’s animus, which was established by the
statement made by project manager Sanford, and Elgin’s dis-
charge the next day. I would conclude that the Company failed
to meet
182

its burden of establishing it would have discharged Elgin even
in the absence of any protected activity on his part. Having
concluded that the Company violated the Act when it dis-
charged Elgin, I shall order that the Company offer him rein-
statement, make him whole and post an appropriate notice for
the specified period of time.
After being provided a copy of the transcript of this proceed-
ing by the court reporting service, I will certify those pages of
the transcript that constitute my decision, and attached to that
will be the notice language that is to be posted. And, also, I
will spell out in some more detail the remedy that is applicable
herein. The appeal period for appealing from this decision is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
set forth in the Board’s rules and regulations, and I invite your
attention to those. Let me state in closing that it has been a
pleasure to be in Austin, Texas. And this hearing is closed.
Off the record.
(Whereupon, at 9:28 a.m., the bench opinion was con-
cluded.)