Metta Electric

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1059 (N.L.R.B. 2003)

METTA ELECTRIC 1059
JHP & Associates, LLC d/b/a Metta Electric and Lo-
cal No. 1, International Brotherhood of Electri-
cal Workers, AFL–CIO. Case 14–CA–25885
April 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On July 10, 2002, Administrative Law Judge John T.
Clark issued the attached decision. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
1. The General Counsel requests that the Board reject
the Respondent’s exceptions because they do not comply
with Section 102.46 of the Board’s Rules and Regula-
tions. Section 102.46(b)(1) provides, in pertinent part:
Each exception (i) shall set forth specifically the ques-
tions of procedure, fact, law, or policy to which excep-
tion is taken; (ii) shall identify that part of the adminis-
trative law judge’s decision to which objection is made;
(iii) shall designate by precise citation of page the por-
tions of the record relied on; and (iv) shall concisely
state the grounds for the exception.
Section 102.46(b)(2) provides that “[a]ny exception which
fails to comply with the foregoing requirements may be
disregarded.” Section 102.46(c) requires, in pertinent part,
that “[a]ny brief in support of exceptions shall contain . . . in
the order indicated . . . (2) a specification of the questions
involved and to be argued, together with a reference to the

1 The Respondent has taken issue with some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
Based on the specific facts of this case, we adopt the judge’s finding
that the Respondent’s part owner, Kim Tunze, violated Sec. 8(a)(1) on
January 19, 2000, by interrogating job applicant James Coco about his
union activities and sympathies.
The Respondent has taken issue with the judge’s finding that the Re-
spondent, by Owner Steve Tunze, unlawfully interrogated employee
Matt Stewart on October 28, 1999. We need not reach this issue, as
any such finding would be cumulative.
Chairman Battista agrees with the judge and his colleagues that the
Respondent violated Sec. 8(a)(1) of the Act by asking employees who
supported the Union, “Why don’t you quit.” He would not, however,
characterize this statement as a threat of discharge.
specific exceptions to which they relate.” The Respondent
has submitted as its exceptions a bare list of page and line
numbers encompassing almost every page and line of the
judge’s decision. Thus, the brief does not reference by pre-
cise citation the exceptions to which they relate. Clearly,
the Respondent’s exceptions and brief do not comply with
these rules.
In cases where exceptions are defective and a brief is
filed, the Board has sometimes exercised its discretion
and accepted an otherwise “substantially compliant”
brief. See, e.g., Zurn Nepco, 316 NLRB 811 fn. 1 (1995)
(accepting respondent’s substantially compliant brief);
compare, LIR-USA Mfg., 306 NLRB 298 fn. 1 (1992)
(General Counsel’s request for remand denied in light of
noncompliant exceptions and brief). Here, the General
Counsel asks us to reject the exceptions and brief, and
the Respondent does not oppose the request. In light of
the Respondent’s noncompliance with the Board’s Rules,
we would be justified in disregarding the documents.
However, in the interest of judicial economy, to the ex-
tent that the brief has made discernible arguments that
cite the record and the law, we have considered those
arguments and find no merit in them.2
2. We adopt the judge’s finding that Steve Tunze vio-
lated Section 8(a)(1) of the Act by telling employees, at a
mandatory employee meeting on December 9, 1999, that
it would “do anything legally and by any other means to
remain an open shop.” (Emphasis added.) We agree that
the statement implies that the Respondent is willing to
take whatever action is necessary, including engaging in
unlawful acts. Thus, we find this case distinguishable
from Aluminum Casting & Equipment Co., 328 NLRB 8
(1999), enfd. denied in pertinent part 230 F.3d 286, 295
(7th Cir. 2000). In that case, the Board found unlawful a
statement in the employee handbook that the employer
intended “to do everything possible to maintain our com-
pany’s union-free status for the benefit of both our em-
ployees and [the Company].” The court reversed, hold-
ing that the handbook statement, “drafted long before
any organizing campaign was on the horizon,” could not
reasonably be perceived as indicating a willingness to
use unlawful tactics to keep the union out, even in the
context of the employer’s actual unlawful conduct. In
contrast, in the instant case, the threat is clear and un-
equivocal, reference is made to means other than legal
means, and the statement was made in direct response to
the employees’ nascent union activities.
2 Chairman Battista notes that the Respondent does not oppose the
General Counsel’s request to reject the Respondent’s exceptions and
brief. Accordingly, Chairman Battista would grant the request. How-
ever, he does not oppose his colleagues’ disposition of the merits, ex-
cept as indicated.
338 NLRB No. 161
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, JHP & Associates, LLC d/b/a
Metta Electric, St. Charles, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.

Paula B. Givens, Esq., for the General Counsel.
Lawrence P. Kaplan, Esq., of St. Louis, Missouri, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in St. Louis, Missouri, on November 27, 2001. The
charge was filed January 10, 2000,1 and an amendment to the
complaint was issued November 21, 2001. The complaint al-
leges that JHP & Associates, LLC d/b/a Metta Electric (Re-
spondent) violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (Act) by: interrogating and threatening
employees, discharging employee Michael P. Thomson, and by
making unilateral changes in unit employees’ terms and condi-
tions of employment, and failing and refusing to provide re-
quested information to the Union. The General Counsel re-
quests, as part of the remedy, that the certification year be ex-
tended.
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 limited liability company, with an office
and place of business in St. Charles, Missouri, is engaged as an
electrical contractor in the building and construction industry.
During the 12-month period ending February 28 the Respon-
dent, in conducting its business operations, purchased and re-
ceived at its St. Charles, Missouri facility goods valued in ex-
cess of $50,000 directly from points outside the State of Mis-
souri. 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. Chronology
The following is primarily based on undisputed testimony
and the stipulation of facts, which is attached to the parties’
motion to transfer proceedings to the Board. The Board re-
jected the motion in an unpublished Order [GC Exh. 1(n)],
because the stipulation “contains ambiguities that may prevent
resolution of the dispute.” The stipulation was admitted at the

1 All dates are in 2000 unless otherwise indicated.
hearing without objection [GC Exh. 1(m)]. The ambiguities
have not been relied on, and any specific credibility resolutions,
where necessary, have been made.
The Respondent is an electrical contractor employing ap-
proximately 12 people. Steve and Kim Tunze are married, joint
owners of the Respondent. Steve is director of field operations
and Kim its president. During the relevant period Kim ran “the
personnel end of it” (Tr. 92). Both are admitted supervisors
and agents of the Respondent within the meaning of Section
2(11) and (13) of the Act. Until February 28, 2000, the date
that the Union was certified as the representative for the Re-
spondent’s bargaining unit employees, the Respondent was a
nonunion company. Michael P. Thomson (Thomson Senior),
the alleged discriminatee, was the second employee hired by
the Tunze’s and the most senior employee during the relevant
period. His son, Michael J. Thomson (Thomson Junior), was
employed by the Respondent since February 1997 as an appren-
tice electrician. Thomson Junior began discussing unionization
with his fellow employees in early September 1999. These
discussions generally took place during their lunch break and
Thomson Junior specifically recalled having these conversa-
tions with employees Matt Stewart and Jason Finnigan.
It was also in this timeframe that the Respondent was evalu-
ating its employees. Thomson Senior was, and had been for
several years, the highest paid employee. Before his evalua-
tion, on September 14, 1999, some employees complained to
Steve Tunze that they did not believe that Thomson Senior’s
job performance warranted his wage. Tunze wrote several
pages of notes in preparation for Thomson Senior’s evaluation
interview (GC Exh. 8). Tunze admitted to following his outline
during the evaluation. Tunze began the meeting by stating that
the purposes were to “determine money issues,” review Thom-
son Senior’s performance, explain why job descriptions were
established, and what Tunze characterized as “most important”
discuss their relationship.
Neither the interview nor the notes are the subject of com-
plaint allegations. They are, however, significant for the light
they shed on subsequent events, specifically Thomson Senior’s
discharge and the reasons given by the Respondent therefor.
When Steve Tunze was discussing Thomson Senior’s produc-
tion he said that it “seems to be slipping” and that Thomson
Senior’s current assignment “seems to be taking longer than
expected.” (Emphasis added.) Although Thomson Senior’s
wage was reduced by $2 an hour, this reduction was done to
conform his wage with his current job description, rather than
as a result of disciplinary action (Tr. 193–194; Jt. Exh. 2 at 1b).
It is significant that Steve Tunze did not place Thomson Senior
on probation, did not set any deadlines that had to be met or
discharge would be forthcoming, nor in anyway say or indicate,
that if improvement was not immediate, discharge would be
imminent.
Tunze ended the evaluation by saying that he continued to
have confidence in Thomson Senior’s ability, that he was a
valued employee who was very much a part of the Respon-
dent’s plans, and whom the Tunzes wanted to continue to em-
ploy.
Thomson Senior was discharged only 2 days after his evalua-
tion. Steve Tunze told him that “it just wasn’t working out”
METTA ELECTRIC 1061
(Tr. 193). Tunze told the employees that Thomson Senior was
discharged for poor productivity (Tr. 197). In protesting
Thomson Senior’s claim for unemployment benefits the Re-
spondent added “unsatisfactory job performance” and stated
that Thomson Senior was “displeased about change” (the
change referred to was his wage reduction), and that he “caused
discord among other employees,” a statement which was writ-
ten without further elaboration (GC Exh. 12). Kim Tunze, in
her written response to the Board’s investigation, added that
Thomson Senior was a “very disgruntled employee” who was
“going to affect the productivity and moral of all the other em-
ployees because of his display of negative actions” (Jt. Exh. 2
at 2).
Between Thomson Senior’s evaluation and his discharge, the
Tunzes learned that he was a prounion employee who would
likely vote for the Union. Employee Matt Stewart conveyed
this information to the Tunzes on September 15, 1999. Stewart
credibly testified that he was concerned that if a union won an
election he would lose his job. Steward told the Tunzes that he
thought that five employees would vote for the Union. Stewart
credibly testified that Kim Tunze wrote a list of the yes and no
votes. In the yes column Stewart told her to list Thomson Sen-
ior and Junior, Jason Finnigan, Tom Baird, and Lisa Kicker.
Stewart told her to record himself, Dave Crowder, Tom Tevlin,
and Tom Homer in the no column. Thus, before Thomson
Senior’s discharge the potential vote was five to four for the
Union. After his discharge the potential vote was tied, which
would result in no union. Sometime after Stewart left, but still
on the same day, Kim Tunze contacted a labor lawyer. Within
weeks of Thomson Senior’s discharge the Respondent included
in the employees pay envelope literature that, in essence, urged
the employees to remain nonunion.
Matt Stewart creditably testified that on October 28, 1999,
union organizer, Joe Cousin, visited his jobsite. Shortly after
Cousin left, Steve Tunze arrived asking about visitors. Stewart
acknowledged that the organizer had been there and Tunze
asked what union organizer Cousin said. Tunze left after Stew-
art answered the question. Stewart and Thomson Junior also
creditably testified that on December 9, the Respondent held a
mandatory employee meeting. At this meeting Steve Tunze
told the employees that the Respondent would do anything
legally and by any other means to remain an open shop (Tr. 61,
166).
The Respondent admits that on November 28, 1999, and
January 4, 2000, at two different jobsites, Tom Tevlin, its
agent, interrogated employees about their union activities. (GC
Exh. 1(r).) The Respondent also admits that on January 28,
2000, at its office, Tevlin threatened employees with discharge
by suggesting employees should quit because of their union
activities and sympathies. (Par. 5(A)(iv) of the complaint, as
amended at the hearing, and the stipulation [Tr. 10, 47–48]).
Jeff Coco creditably testified that Kim Tunze interviewed
him for a job on January 19, 2000. Coco said that she talked to
him about the problems the Respondent was having with the
Union and asked if he was aware of those problems. He said
yes and she asked how he felt about it. He replied that he
wished to stay independent. “She said she also must stay inde-
pendent.” After her husband joined them “they both said, you
know, they wanted to stay independent. They were going to
fight and do their best to [stay] independent and they won’t go
Union.” (Tr. 12–13.)
The Union was certified as the exclusive bargaining repre-
sentative on February 28. On March 9 the Respondent an-
nounced, and implemented, extensive unilateral changes to the
unit employees’ existing terms and conditions of employment.
The changes affected the employees’ wages, sick and vacation
days, holidays, insurance, and the use of cellular telephones
(GC Exhs. 2, 13.) The Respondent admits that the changes
relate to wages, hours, and other terms and conditions of em-
ployment of the unit, that the changes are mandatory subjects of
bargaining, and that the Respondent did not give prior notice to,
nor afford the Union an opportunity to bargain regarding the
Respondent’s conduct (R. Br. 10). The Union objected to the
Respondent’s conduct by letter dated March 10.
Butch Hepburn, the union business agent, credibly testified
that it was also on March 9 that he requested dates and times
from the Respondent, and its attorney, as to when they would
be available for bargaining. He did not receive a response and
contacted the attorney’s office on March 14. He was told that
the attorney would probably not be available until March 20.
The following day he called the Tunzes, who referred him back
to the attorney. Hepburn eventually talked with a member of
the law firm and he expressed his desire to immediately begin
negotiations because of the unilateral changes made by the
Respondent, without bargaining with the certified representa-
tive.
The employees, frustrated by the lack of negotiations and the
Respondent’s unilateral changes, voted to strike on March 13.
The strike began on March 15. Thereafter, the Respondent
hired strike replacement employees.
The parties met for the first time on March 21 for approxi-
mately an 1-1/2 hours. The meeting occurred at the union hall
and the parties spent the time discussing the Union’s informa-
tion request (GC Exh. 3). The Union had been told by the Re-
spondent’s employees that the Respondent was performing
prevailing wage jobs at several area colleges, but that the em-
ployees were not receiving prevailing wage rates. Nothing was
resolved and the parties agreed to meet on March 30 at the
office of Respondent’s attorney. In addition to the attorney,
Kim Tunze was present and the Union was represented by
Business Agents Hepburn and Joe Cousin. The parties again
discussed the information request, but the Respondent has
never provided the requested information. Kim Tunze testified
that at this meeting she gave the Union a proposed collective-
bargaining agreement (R. Exh. 1). She admits that although the
Union left with the document, there was no discussion of its
contents. Union Representative Hepburn testified that he did
not recall receiving the document (Tr. 25). On April 5 the Un-
ion requested the names, addresses, and telephone numbers of
all strike replacement employees (GC Exh. 4). The Respondent
has also failed and refused to provide that information.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062
B. Discussion and Analysis
1. The 8(a)(1) allegations
Paragraph 5 of the complaint contains the 8(a)(1) allegations.
The Respondent admits that on November 28, 1999, and Janu-
ary 4, 2000, at two different jobsites, Tom Tevlin, its agent,
interrogated employees about their union activities. (GC Exh.
1(r).) The Respondent also admits that on January 28, at its
office, Tevlin threatened employees with discharge by suggest-
ing employees should quit because of their union activities and
sympathies. (Par. 5(A)(iv) of the complaint, as amended at the
hearing, and the stipulation [Tr. 10, 47–48]). I find, as alleged
in the complaint, and admitted by the Respondent, that the Re-
spondent violated Section 8(a)(1) of the Act when its agent,
Tom Tevlin, on two occasions interrogated employees about
their union activities. I also find, as admitted by the Respon-
dent, that it violated Section 8(a)(1) of the Act when its agent,
Tom Tevlin, issued an implied threat of discharge by suggest-
ing to employees, who were engaged in protected activities,
that they should quit.
Subparagraph 5(B)(i), as amended, relates to Steve Tunze,
the Respondent’s co-owner and director of field operations,
asking employee Stewart about visitors to his jobsite. When
Stewart acknowledged that the union organizer had been there,
Tunze asked what the union organizer had said. Tunze left
after Stewart answered the question. The amendment to the
complaint amends the date of this incident from November to
October 28, 1999 (GC Exh. 1(s)). The Respondent does not
dispute the incident but argues that the incident is not the
equivalent of an interrogation. I disagree. I find that under the
circumstances Tunze’s interrogation of Stewart, who was not a
union supporter, open or otherwise, about what the union or-
ganizer had said to him reasonably tends to interfere with, re-
strain, or coerce employees in the exercise of their Section 7
rights, and thus, violates Section 8(a)(1) of the Act as alleged.
Subparagraph 5(B)(ii), as amended, alleges that on Decem-
ber 9, Steve Tunze threatened employees with unspecified re-
prisals because of their union activities. Stewart and employee
Thomson Junior, creditably testified that on December 9, the
Respondent held a mandatory employee meeting. At this meet-
ing Steve Tunze told the employees that the Respondent would
do anything legally and by any other means to remain an open
shop (Tr. 61, 166). The Respondent has produced no evidence
to rebut this testimony. Indeed, Steve Tunze did not deny mak-
ing the statement when he testified. The statement implies that
the Respondent is willing to take whatever action is necessary,
including engaging in unlawful acts, to remain a nonunion
shop. My remaining findings conclusively demonstrate that the
Respondent meant exactly what Tunze, its co-owner, said. I
find the statement made by Steve Tunze on December 9, to be
an implied threat that reasonably tends to interfere with, re-
strain, or coerce employees in the exercise of their Section 7
rights, and thus, violates Section 8(a)(1).
Subparagraph 5(C) alleges that on January 19, 2000, co-
owner Kim Tunze interrogated an employee and threatened
unspecified reprisals. Jeff Coco creditably testified that during
a job interview Kim Tunze talked to him about the problems
the Respondent was having with the Union, and asked if he was
aware of those problems. He said yes and she asked how he
felt about it. He replied that he wished to stay independent.
“She said she also must stay independent.” After her husband
joined them “they both said, you know, they wanted to stay
independent. They were going to fight and do their best to
[stay] independent and they won’t go Union.” (Tr. 12–13.) At
this point in time the Union was attempting to organize the
employees, and the employees had not yet gone on strike.
Thus, when Coco answered that he wished to stay independent
he was also indicating his understanding that the “problems” to
which Tunze referred was the organizing campaign and the “it”
was the Union. Job applicants are protected by the Act and it is
well-settled that interrogating them about their union sympa-
thies and preferences is inherently coercive. E.g., M. J. Me-
chanical Services, 324 NLRB 812 (1997).
2. The 8(a)(3) allegation
This allegation involves the discharge of Mike P. Thompson,
who has been referred to throughout as Thomson Senior. Aside
from the Tunzes, the Respondent’s co-owners, Thomson Senior
was the most senior and highest paid employee. Some employ-
ees had complained to Steve Tunze that they did not believe
that Thomson Senior’s job performance warranted his wage.
Tunze apparently agreed, and he wrote several pages of notes in
preparation for Thomson Senior’s evaluation interview (GC
Exh. 8). Neither the interview nor the notes are the subject of
complaint allegations. They are, however, significant for the
light they shed on subsequent events, specifically Thomson
Senior’s discharge and the reasons given by the Respondent for
the discharge.
Tunze admitted that he followed his notes while conducting
the evaluation interview. He began the evaluation by stating
that the purpose of the evaluation was to “determine money
issues”, review Thomson Senior’s performance, explain why
job descriptions were established and, what Tunze character-
ized as the “most important,” to discuss their relationship.
When Steve Tunze addressed Thomson Senior’s production he
said that it “seems to be slipping” and that his current assign-
ment “seems to be taking longer than expected.” (Emphasis
added.) The latter comment was a reference to the current job
that he was doing, which is referred to as MSD.
After the evaluation Thomson Senior’s wage was reduced,
but the reduction was to conform his wage with his job descrip-
tion, rather than as a result of disciplinary action (Tr. 193–194;
Jt. Exh. 2 at 1b). Steve Tunze did not place Thomson Senior on
probation, did not set any deadlines that had to be met or dis-
charge would be forthcoming, nor in anyway say or indicate,
that if improvement was not immediate, discharge would be
imminent. Tunze ended the evaluation by saying that he con-
tinued to have confidence in Thomson Senior’s ability, that he
was a valued employee who was very much a part of the Re-
spondent’s plans, and that the Tunzes wanted him to remain
employed by the Respondent. Notwithstanding Tunze’s upbeat
ending to the evaluation, Thomson Senior was so upset that he
was off sick for the remainder of the day. He worked at the
MSD site the following day. The next day, September 16,
1999, he spent the morning waiting for the Respondent’s van to
METTA ELECTRIC 1063
be repaired. He was terminated at day’s end when Steve Tunze
told him “it just wasn’t working out” (Tr. 193).
Tunze told the employees that Thomson Senior was dis-
charged for poor productivity (Tr. 197). In protesting Thomson
Senior’s claim for unemployment benefits the Respondent
added “unsatisfactory job performance” and stated that Thom-
son Senior was “displeased about change” (the change referred
to was his wage reduction), and that he ”caused discord among
other employees” (GC Exh. 12). Kim Tunze, in her written
response to the Board’s investigation, added that Thomson
Senior was a “very disgruntled employee” who was “going to
affect the productivity and moral of all the other employees
because of his display of negative actions” (Jt. Exh. 2 at 2).
Between Thomson Senior’s evaluation and his discharge, the
Tunzes learned that he was a prounion employee who would
likely vote for the Union in an election. Employee Matt Stew-
art conveyed this information to the Tunzes on September 15,
1999. Steward told the Tunzes that he thought that five em-
ployees would vote for the Union. Stewart credibly testified
that Kim Tunze wrote a list of the yes and no votes. In the yes
column Stewart told her to list Thomson Senior and Junior,
Jason Finnigan, Tom Baird, and Lisa Kicker. Stewart told her
to record himself, Dave Crowder, Tom Tevlin, and Tom Homer
in the no column. Thus, before Thomson Senior’s discharge
the potential vote was five to four for the Union. After his
discharge the potential vote was tied, which would result in no
union. Sometime after Stewart left, but on the same day, Kim
Tunze contacted a labor lawyer. Within weeks of Thomson
Senior’s discharge the Respondent included in the employees
pay envelope literature that, in essence, urged the employees to
remain nonunion.
Section 8(a)(3) prohibits employer “discrimination [against
employees] in regard to hire or tenure or any term or condition
of employment to encourage or discourage membership in any
labor organization.” The methodology for determining dis-
criminatory motivation is set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Under Wright Line, the General Counsel
has the initial burden to persuade that antiunion sentiment was
a substantial or motivating factor in the employer’s action. To
sustain the burden, the General Counsel must show that the
employee was engaged in protected activity, that the employer
was aware of the activity, and that the activity was a substantial
or motivating reason for the employer’s action. Motive may be
demonstrated by circumstantial or direct evidence and is a fac-
tual issue, which the Board’s expertise is peculiarly suited to
determine. Proof of the protected activity, employer knowl-
edge, and animus toward the activity supports an inference that
the employee’s protected conduct was a motivating factor in the
employer’s action. The burden of persuasion then shifts to the
employer to prove that it would have taken the same action
even in the absence of the protected activity. Manno Electric,
321 NLRB 278, 280 fn. 12 (1996); Wright Line, supra at 1089.
The employer may rebut the General Counsel’s case by proving
that animus played no part in its actions or, by establishing as
an affirmative defense, that it would have taken the same action
even in the absence of the employee’s protected conduct. The
employer cannot simply present a legitimate reason for its ac-
tions but must persuade by a preponderance of the evidence
that the same action would have taken place even in the ab-
sence of the protected conduct.
The Respondent admits that the General Counsel has met the
initial burden. This admission has been acknowledged by the
Board (GC Exhs. 1(n) and (m) at par. 14), is a fact established
in the record, and which I find. As set forth above, the burden
shifts to the Respondent to establish that it would have dis-
charged Thomson Senior even in the absence of his protected
conduct. To this end the Respondent presented its co-owners
Steve and Kim Tunze, as witnesses. “The state of mind of the
company officials who made the decision . . . reflects the com-
pany’s motive for” the allegedly discriminatory action. Abilene
Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 336 (5th Cir. 1980).
Kim Tunze testified at length but she did not have the testi-
monial demeanor of a candid and forthright witness. She was
reluctant to give direct answers to even the most obvious ques-
tions. Thus, when asked her to confirm that the Respondent did
not think that Thomson Senior was its best electrician, she an-
swered that she did not think that she could give a yes or no
answer and that she did not have an answer to the question.
This response is regarding a person about whom she claims that
there was a whole host of reasons that his pay was cut, and
about whom she spends the majority of her testimony providing
various reasons for his discharge (Tr. 101). One of the reasons
given by the Respondent, as justification for Thomson Senior’s
discharge, is that he “caused discord among other employees.”
That reason was advanced, for the first time, to the Missouri
Division of Employment Security when the Respondent was
protesting Thomson Senior’s unemployment benefits (GC Exh.
12). When Kim Tunze was asked to provide the name of even
one employee who told her that Thomson Senior was causing
discord, she was unable to do so (Tr. 115–117). Moreover, she
admitted that she knew that Thomson Senior worked alone
during the days after his evaluation and pay cut, and before his
discharge (Tr. 106).
At one point in her testimony she seemed to almost place the
responsibility for the discharge on the anonymous labor lawyer
with whom she spoke immediately after employee Stewart told
her that Thomson Senior would most likely vote for the Union.
I find her testimony regarding her call to the labor lawyer to be
especially disingenuous. In an attempt to explain why the Re-
spondent did not discharge Thomson Senior on the day of his
evaluation, but did so only 2 days after the evaluation, she vol-
unteered that on March 15 she “talked to a labor lawyer in re-
gard to the—what had happened.” The following is her expla-
nation of “what happened”:

As far as us firing him, and not any regards other than that. I
mean, as far as us dropping his pay and his being disgruntled.
He told me that you never, never, never, never, never, never
lower someone’s salary and put them back in the field. That’s
absolutely crazy. You should have fired him. And that is—I
went on that direction (Tr. 114).

Kim Tunze’s statements regarding the van incident also dis-
close that she was not reluctant to exaggerate events. Thus, she
testified that Thomson Senior spent the entire day sitting in the
repair shop (Tr. 115). Not only is this statement inconsistent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
with the Respondent’s records (R. Exh. 2), but with her hus-
band’s testimony (Tr. 192).
The van incident is one of the reasons given by Steve Tunze
for discharging Thomson Senior. It was not a reason that was
given to Thomson Senior. Tunze admitted that Thomson Sen-
ior was only told “it just wasn’t working out.” It was not given
to the State Division of Employment Security (GC Exh. 12),
nor was it given to the Board during its investigation (Jt. Exh
2). It was not given as a reason to the employees when Steve
Tunze announced Thomson Senior’s discharge (Tr. 197). It is
of interest because, other than the Tunze’s learning that there
was an organizing campaign underway, and that Thomson Sen-
ior was one of the votes that the Union needed to prevail in an
election, it is the only other specific event that happened during
the 2 days between Thomson Senior’s evaluation and his dis-
charge.
The Tunze’s statements indicate that this incident was an un-
usual occurrence. Kim Tunze stated that when the van needed
repair someone would usually follow Thomson Senior to the
repair shop and then take him on to his destination (Tr. 115).
Steve Tunze stated that it was not normal procedure and “pretty
much uncalled for to sit with your van for four hours and not
tell anybody” (Tr. 189, 193). Shirley Bryan, the Respondent’s
secretary, states, however, that Thomson Senior would “sit
nearly all day” waiting for the van to be fixed and that this hap-
pened “a number of times” (Tr. 89–90; GC Exh. 14). And yet
Steve Tunze did not find those incidents of enough significance
to mention them during his extensive evaluation of Thomson
Senior. Indeed, the incident with the van was not told to the
other employees, so as to serve as a warning, when he told
them of Thomson Senior’s discharge (Tr. 197). I find this rea-
son a pretext, offered as an attempt to hide the real motive for
Thomson Senior’s discharge, which is the Respondent’s belief
that he supports the Union.
I also find that Steve Tunze’s other reason for discharging
Thomson Senior, his performance on the MSD job, to be a
pretext. Tunze stated that Thomson Senior was taking days to
finish work that should have taken hours (Tr. 188). That state-
ment, when compared to what he told Thomson Senior during
his evaluation regarding the MSD job—“seems to be taking
longer than expected.” (GC Exh. 8, emphasis added.)—is an
extravagant exaggeration. It is doubtful that any employer,
under normal circumstances, would retain an employee who
was taking days to complete what should take hours, let alone
praise him, tell him that he is very much a part of your plans,
and that you want him to remain in your employ—which is
what the Respondent admittedly told Thomson Senior, just days
before it discharged him, which was immediately after it
learned that he supported the Union.
I find that the Respondent did not rely on the various reasons
it advanced for discharging Michael P. Thomson Sr. I find that
those reasons were advanced only to disguise its real motive,
which was to be rid of an employee whom it believed was a
union supporter. Accordingly, I find that the Respondent vio-
lated Section 8(a)(3) of the Act.
3. The 8(a)(5) allegations
a. The unilateral changes
The unilateral change allegations are contained in paragraph
8 of the complaint. The Respondent admits the allegations, but
states that “[u]nion representative Hepburn testified that the
status quo was restored in regard to the alleged changes made
in the Respondent’s company policies” (R. Br. 10). Actually
Hepburn testified that it was his belief that some of the changes
had been restored. Regardless, the Respondent’s statement is
neither a valid defense to the allegation, nor an appropriate
remedy.
I find that the Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally changing the existing terms and condi-
tions of the unit employees employment, including their wages,
sick days, vacation days, holidays, insurance, and the use of
cellular telephones, without prior notice to the Union and with-
out affording the Union an opportunity to bargain with the Re-
spondent with respect to the changes and the effects of the
changes.
b. The information requests
(1) The March 21, 2000 request
The Respondent does not deny that on March 21, 2000, the
Union made a valid, presumptively relevant request for weekly
payroll records. The Respondent contends that the requested
records were available from the Department of Labor. This fact
does not alter or diminish the Respondent’s obligation to fur-
nish the relevant information. Holyoke Water Power Co., 273
NLRB 1369 (1985).
I find that the Respondent has violated Section 8(a)(5) and
(1) by failing and refusing to provide all certified weekly pay-
roll records for St. Louis Community Colleges, Meramac
Community College, Florissant Valley Community College,
and Forest Park Community College.
(2) The April 5, 2000 request
The Union made a presumptively relevant request for the
names, addresses, and telephone numbers of all the strike re-
placement employees. Strike replacement employees are unit,
if not union, members and as such are represented by the Union
for purpose of collective bargaining. Union Representative
Hepburn credibly testified that the Union, as the certified col-
lective-bargaining representative for the unit employees, needs
to contact those employees to ascertain the goals they wish to
achieve as a result of negotiations. Hepburn credibly testified
that the Union had no way of knowing who those unit employ-
ees were or how they could be contacted. Hepburn opined that
bargaining, without knowing the wishes of all the unit mem-
bers, would not be fruitful. Respondent may withhold the re-
quested information if it can establish that there is a clear and
present danger that the information would be misused by the
Union. The Respondent has not established that there is any
danger that the information would be misused by the Union.
The Respondent does contend, both as a defense to this in-
formation request, and as part of a generic argument, that the
circumstances of this case demonstrate “that it was the Union’s
METTA ELECTRIC 1065
goal not to seek a collective bargaining agreement with this
employer, but rather to put the Respondent out of business.”
The Respondent cites no case law to support this position and
the record evidence does not establish the claim. Accordingly,
I find that the Respondent has failed and refused to provide the
requested names, addresses, and telephone numbers of strike
replacement employees in violation of Section 8(a)(5) and (1)
of the Act. Page Litho, Inc., 311 NLRB 881, 882 (1993).
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees of the Respondent are an ap-
propriate unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.

All journeymen and apprentice electricians employed by Re-
spondent from its St. Charles, Missouri facility, excluding all
office clerical and professional employees, guards and super-
visors as defined in the Act.

4. The Union, since February 28, 2000, has been and is, the
exclusive representative of the employees in the appropriate
unit for the purposes of collective bargaining within the mean-
ing of Section 9(a) of the Act.
5. By interrogating its employees about their union activities
and sympathies, by threatening employees with unspecified
reprisals because of their union activities and sympathies, by
suggesting that employees should quit because of their union
activities and sympathies, the Respondent has violated Section
8(a)(1) of the Act.
6. By discharging employee Michael P. Thomson because
the Respondent believed that he joined the Union and engaged
in concerted activities, and to discourage employees from en-
gaging in these activities, the Respondent has violated Section
8(a)(3) and (1) of the Act.
7. By unilaterally, and without prior notice to the Union and
without affording the Union an opportunity to bargain, chang-
ing the terms and conditions of employment of unit employees
including their wages, sick days, vacations days, holidays, in-
surance, and the use of cellular telephones, since on or about
March 9, 2000, the Respondent has violated Section 8(a)(5) and
(1) of the Act.
8. By failing and refusing, since March 21, 2000, to provide
the Union with relevant, requested information, specifically all
certified weekly payroll records for St. Louis Community Col-
leges, Meramac Community College, Florissant Valley Com-
munity College, and Forest Park Community College the Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
9. By failing and refusing, since April 5, 2000, to provide
the Union with relevant, requested information, specifically the
names, addresses, and telephone numbers of all strike replace-
ment employees the Respondent has violated Section 8(a)(5)
and (1) of the Act.
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 Board, in rejecting the parties’ stipulation of facts, noted
that although the parties stipulated that employee Michael P.
Thomson had rejected an offer of reinstatement from the Re-
spondent, they had not stipulated that the offer was a valid offer
of reinstatement. No evidence concerning the offer was pre-
sented at the hearing. I will order the standard reinstatement
and make whole remedy to the extent that it has not been done.
If the validity of the offer becomes an issue, it is best resolved
in the compliance phase of this proceeding. The Respondent
having discriminatorily discharged employee Michael P.
Thomson, it must, to the extent that it has not already done so,
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 a proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
It is also ordered that the Respondent, on the request of the
Union, rescind any changes in the terms and conditions of em-
ployment of the unit employees that it implemented on March
9, 2000. To the extent that unit employees suffered economic
detriment as a consequence of the Respondent’s unlawful uni-
lateral changes the Respondent is required to make them whole,
plus interest as computed in New Horizons for the Retarded,
supra.
The General Counsel has requested that the certification year
be extended for 1 year from the date that the Respondent pro-
vides the Union with names, addresses, and telephone numbers
of the strike replacement employees in the unit. The Board has
long held that where an employer has, during part or all of the
year immediately following a certification, refused to bargain
with, or to provide relevant information for bargaining to the
Union, the Board will take measures to assure a period of at
least a year of good-faith bargaining during which the bargain-
ing representative need not fend off claims that it has lost its
majority support. Michigan Rent-to-Own, 286 NLRB 1415
(1987); Mar–Jac Poultry Co., 136 NLRB 785 (1962). The
measures taken by the Board to assure a period of at least a year
of good-faith bargaining usually, but not always, include an
extension of the certification year. E.g., San Antonio Portland
Cement Co., 277 NLRB 309 (1985). The length of the exten-
sion of the certification year, when it is ordered, is not necessar-
ily a simple arithmetic calculation. E.g., Colfor Inc., 282
NLRB 1173 (1987).
The factors which the Board considers in determining the
length that the certification year should be extended include the
nature of the violations, the number, extent, and dates of the
collective-bargaining sessions, the impact of the unfair labor
practices on the bargaining process and the conduct of the Un-
ion during the negotiations. Wells Fargo Armored Services
Corp., 322 NLRB 616, 617 (1996).
I have evaluated the factors and find that a 1-year extension
of the certification year, which will commence on the date that
the Respondent provides the Union with the names, addresses,
and telephone numbers of all strike replacement employees, is
appropriate. The Union was certified on February 28, 2000. I
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
have found that Butch Hepburn, the Union business agent,
credibly testified that on March 9 he requested dates and times
from the Respondent, and its attorney, as to when they would
be available for bargaining. It was also on March 9 that the
Respondent announced, and implemented, extensive unilateral
changes to the unit employees’ existing terms and conditions of
employment, thus beginning its “circumvention of the duty to
negotiate which frustrates the objective of § 8(a)(5)” NLRB v.
Benne Katz, 369 NLRB 736, 743 (1962). Thereafter the parties
met only twice for a total of only, at most, 3-1/2 hours. Save
for the Respondent’s pro forma delivery of a contact, the entire
time was spent discussing the Union’s patently relevant infor-
mation requests. The Respondent unlawfully failed and refused
to provide the information in either request. The last request
dated April 10 asked for the names, addresses, and telephone
numbers of all strike replacement employees, without which the
Union has no way of contacting the unit employees, and thus, is
precluded from fully formulating its demands. Thus, except for
the period from February 28 until March 9, a period that I find
that the bargaining process never had a chance to get seriously
and fairly underway, the entire time is directly attributable to
the Respondent’s unlawful acts. D. J. Electrical Contracting,
Inc., 303 NLRB 820 fn. 2 (1991). Accordingly, I find it appro-
priate to extend the certification year for a 1-year period begin-
ning from the date that the Respondent provides the Union with
names, addresses, and telephone numbers of the strike replace-
ment employees in the unit.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, JHP & Associates, LLC d/b/a Metta Elec-
tric St. Charles, Missouri, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their union ac-
tivities and sympathies.
(b) Threatening employees with unspecified reprisals be-
cause of their union activities and sympathies.
(c) Suggesting that employees should quit because of their
union activities and sympathies.
(d) Discharging or otherwise discriminating against employ-
ees for supporting Local No. 1, International Brotherhood of
Electrical Workers, AFL–CIO, or any other union.
(e) Unilaterally, and without prior notice to the Union and
without affording the Union an opportunity to bargain, chang-
ing the terms and conditions of employment of unit employees
including their wages, sick days, vacation days, holidays, insur-
ance, and the use of cellular telephones.
(f) Failing to provide requested information that is relevant
to the Union’s performance of its duties as the exclusive collec-
tive-bargaining representative of the employees in the appropri-
ate unit.

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer em-
ployee Michael P. Thomson, to the extent that it has not already
done so, full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make employee Michael P. Thomson whole, to the extent
that it has not already done so, for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files, to the extent that it has not already done so, any refer-
ence to the unlawful discharge, and within 3 days thereafter
notify employee Michael P. Thomson in writing that this has
been done and that the discharge will not be used against him in
any way.
(d) Within 14 days from the date of this Order rescind, on the
request of the Union, any changes in the terms and conditions
of employment of unit employees that it implemented on March
9, 2000.
(e) To the extent that unit employees suffered economic det-
riment as a consequence of our unlawful unilateral changes we
will make them whole, plus interest.
(f) Provide the Union with the relevant information it re-
quested on March 21, 2000, specifically all certified weekly
payroll records for St. Louis Community Colleges, Meramac
Community College, Florissant Valley Community College,
and Forest Park Community College.
(g) Provide the Union with the relevant information it re-
quested on April 5, 2000, specifically the names, addresses, and
telephone numbers of all strike replacement employees.
(h) 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 such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(i) Within 14 days after service by the Region, post at its fa-
cility in St. Charles, Missouri, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 14, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
3 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.”
METTA ELECTRIC 1067
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent 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 proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since September 16,1999.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.

WE WILL NOT coercively interrogate employees about their
union activities and sympathies.
WE WILL NOT threaten employees with unspecified reprisals
because of their union activities and sympathies.
WE WILL NOT suggest that employees should quit because of
their union activities and sympathies.
WE WILL NOT discharge or otherwise discriminate against
employees for supporting Local No. 1, International Brother-
hood of Electrical Workers, AFL–CIO, or any other union.
WE WILL NOT unilaterally, and without prior notice to the Un-
ion and without affording the Union an opportunity to bargain,
change the terms and conditions of employment of unit em-
ployees including their wages, sick days, vacation days, holi-
days, insurance, and the use of cellular telephones.
WE WILL NOT fail to provide requested information that is
relevant to the Union's performance of its duties as the exclu-
sive collective-bargaining representative of the employees in
the appropriate unit.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 employee Michael P. Thomson, to the extent that we have
not already done so, full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make employee Michael P. Thomson, to the extent
that we have not already done so, whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files to the extent that we have not already
done so, any reference to the unlawful discharge of employee
Michael P. Thomson, and WE WILL, within 3 days thereafter, to
the extent that we have not already done so, notify him in writ-
ing that this has been done and that the discharge will not be
used against him in any way.
WE WILL within 14 days from the date of the Board’s Order
rescind, on the request of the Union, any changes in the terms
and conditions of employment of unit employees that were
implemented on March 9, 2000.
WE WILL make unit employees whole plus interest to the ex-
tent that they suffered economic detriment as a consequence of
our unlawful unilateral changes.
WE WILL provide to the Union the information it requested
that is relevant to the performance of its duties as the exclusive
collective-bargaining representative of the employees in the
appropriate unit.
JHP & ASSOCIATES, LLC D/B/A METTA ELECTRIC