Mid-State, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1372 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1372
Mid-State, Inc. and International Brotherhood of
Electrical Workers, Local 1205, AFL–CIO.
Cases 12–CA–18330, 12–CA–18641–1, –3, –4, –
6, 12–CA–18731, and 12–RC–8071
August 25, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
On July 17, 1998, Administrative Law Judge Richard
J. Linton issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent 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, and conclusions and
to adopt the recommended Order.
Contrary to our dissenting colleague, we find, in
agreement with the judge, that the statements made to
employees by Superintendent William Patton McLeod
on April 14 and 16, 1997, and statements made to an
employee by Supervisor Tommy Dampier on April 18,
1997, were not objectionable and did not violate the Act.
On April 14, in the presence of McLeod, employees
were discussing the Union, and their objections to visits
to their homes by Union Representative Kenneth Sykes.
McLeod stated, “If he [Kenneth Sykes] comes onto my
property, I’ll fill his butt with lead. Florida law says I
can defend my property that way.” The judge found that
such hyperbole would not tend to be coercive in the con-
text of an informal discussion in which employees were
voicing displeasure at the home visits.
Based on credited testimony, the judge found that on
April 16, as employee Brenda Thompson was passing
out a union flyer to employees and management,
McLeod told Thompson that if Sykes came over right
then (there is no evidence that Sykes intended to),
McLeod would “kick his ass.” The judge found that this
remark was the result of McLeod’s being upset about
rumors, which he attributed to the Union, that McLeod
was a member of the Union. McLeod had vehemently
denied such union membership. The judge found that
McLeod’s remarks were based strictly on his belief that
the Union was circulating lies about him, and not on any
protected activities of the employees. He therefore found
that the remarks would not tend to coerce employees in
the exercise of their Section 7 rights.
Concerning the April 18 remarks involving Supervi-
sor Dampier, the judge found that there was no connec-
tion to union activities. Based on credited evidence, the
judge found that Dampier and employee Stephen L.
Suggs drove Dampier’s truck to the job trailer. Suggs
stayed in the truck and Dampier went into the trailer.
Suggs heard a “ruckus,” and when Dampier returned to
the truck, he told Suggs that he (Dampier) and employee
Thompson had argued over Thompson’s calling Dam-
pier a liar, and that Dampier had dared Thompson to call
him a liar again. Had Thompson done so, Dampier told
Suggs, Dampier would have kicked Thompson’s butt,
and it almost would have been worth $1000 to have
“decked” Thompson.
The judge found that, as far as employee Suggs knew,
there was no connection between Dampier’s remarks
and Thompson’s union activities. There was no refer-
ence to Thompson’s activities, or to the Union generally.
The judge thus found that there was no union-related
threat against Thompson, and thus no violation of the
Act.
We agree with the judge’s dismissal of the allegations
relating to these three events. The test in determining
whether an employer’s conduct constitutes unlawful
threats of retaliation for employees’ engaging in pro-
tected activity is whether the conduct may reasonably be
said to have the tendency to interfere with the free exer-
cise of employee rights under the Act.1 Concerning
McLeod’s remarks of April 14 and 16, it is quite appar-
ent, as the judge concluded, that these were the result of
McLeod’s belief that the Union was spreading rumors
that McLeod was secretly a member of the Union, and
that McLeod had a strong dislike for Sykes, the union
representative whom he held accountable for the rumors.
More significantly, as the judge found, and the record
shows, employees were aware of the reason for
McLeod’s statements. Employee Thompson acknowl-
edged such knowledge, and the Respondent had sent
letters to the employees advising them that the rumor of
McLeod’s membership in the Union was false. In these
circumstances, we agree with the judge that McLeod’s
statements would not reasonably have the tendency to
interfere with, restrain, or coerce the employees in the
exercise of their Section 7 rights.
We also agree with the judge that there was nothing to
show that Suggs believed that Dampier’s remarks re-
lated to the Union or to protected activities. Our dissent-
ing colleague notes that the confrontation between
Thompson and Dampier concerned Thompson’s filing
of a charge shortly before the election. However, we
note that the allegedly coerced employee here was
Suggs, not Thompson. There was nothing said to Suggs,
shortly after the confrontation between Thompson and
Dampier, to lead Suggs to believe that the confrontation
was linked to Section 7 activities. Although Dampier
had previously mentioned to Suggs that Thompson
seemed to be the main instigator of the Union, that men-
tioning occurred 2 months before the confrontation. In
our view, this asserted link is far too tenuous to overturn
the judge’s finding that Suggs would not connect Dam-

1 MK Railway Corp., 319 NLRB 337, 342 (1995); and Cox Fire
Protection, 308 NLRB 793 (1992).
331 NLRB No. 185
MID-STATE, INC. 1373
pier’s comment to Thompson’s charge filing. Thus,
Dampier’s remarks were not objectionable, and were not
an interference with protected activity.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Mid-State, Inc., Gainesville,
Florida, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.

CHAIRMAN TRUESDALE, dissenting in part.
Contrary to my colleagues, I would find that Superin-
tendent William Patton McLeod’s statements to em-
ployees on April 14 and 16 (1997), and Supervisor
Tommy Dampier’s statement to employee Stephen L.
Suggs on April 18, 1997, each violated Section 8(a)(1)
of the Act.1 Each statement is a threat of physical vio-
lence directed at union activity that would have a ten-
dency to interfere with employees’ exercise of their Sec-
tion 7 rights.2 Further, since these unlawful statements
were made during the critical preelection period, I
would set aside the April 18, 1997 election, and direct a
second election.

Michael R. Maiman, Esq., for the General Counsel.
William E. Sizemore, Esq. (Thompson, Sizemore & Gonzalez),
of Tampa, Florida, for the Respondent, Mid-State.
Kenneth G. Sykes, Rep., of Gainesville, Florida, for the Charg-
ing Party, Local 1205.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is
a salting case. Finding insufficient evidence as to most of the
Government’s allegations, I dismiss the bulk of the General
Counsel’s July 15, 1997 complaint. I recommend that the
Board dismiss the Union’s objections to the election of April
18, 1997, and that it certify the results of that election.
I presided at this 6-day trial (opened August 25, 1997 and
closed October 15, 1997) in Gainesville, Florida. Trial was
pursuant to the July 15, 1997 consolidated complaint (com-
plaint), the Union’s objections (filed April 25, 1997), and the
July 24, 1997 order of the Regional Director for NLRB Region
12 consolidating these matters for hearing. Issued by the Gen-
eral Counsel of the National Labor Relations Board through
the Regional Director for Region 12 of the Board, the July 15
complaint is based on charges filed against Mid-State, Inc.
(Mid-State or Respondent), beginning August 30, 1996 with
the charge, served September 5, 1996, in Case 12–CA–18330,

1 I agree with my colleagues on every other issue.
2 My colleagues fail to note that the election day confrontation be-
tween Brenda Thompson and Dampier concerned Thompson’s filing
of an unfair labor practice charge “not many days before the April 18
election.” Since the judge credited Suggs’ testimony that Dampier
told him that Brenda Thompson was the “main instigator” of the Un-
ion, Suggs would have reason to believe that the “ruckus” between
Thompson and Dampier was related to union activity even if he did
not know the precise details of the dispute.
by the International Brotherhood of Electrical Workers, Local
Union 1205, AFL–CIO (Union or Local 1205).1
The pleadings establish that the Board has both statutory
and discretionary jurisdiction over Mid-State and that Mid-
State is a statutory employer. At trial, the parties stipulated
that the Union is a statutory labor organization. (1:19).2
The complaint alleges that, on various dates between June 7,
1996 and April 21, 1997, Mid-State violated Section 8(a)(1) of
the Act by various threats and other statements by its supervi-
sors. Mid-State violated Section 8(a)(3) of the Act, the Gov-
ernment alleges, by refusing to hire, or consider for hire, 18
named job applicants between April 30, 1996 and January 21,
1997. Additionally, the complaint alleges that Mid-State vio-
lated Section 8(a)(3) of the Act when it discharged Jose Ayala
on February 4, 1997 and Charles Albert on March 31, 1997.
The complaint alleges that certain employees began an unfair
labor practice strike on August 12, 1996, that, on February 24,
1997, striker Bruce Audette made an unconditional offer to
return to work, and that, since such date, Mid-State has refused
to reinstate Audette, thereby violating Section 8(a)(3) of the
Act. Finally, on two dates in December 1996 and January
1997, the complaint alleges, Mid-State refused to hire or con-
sider Ken Sykes or George Snowden in violation of Section
8(a)(4) of the Act. Admitting certain facts, Mid-State, by its
answer, denies violating the Act. (As discussed later, on brief
Mid-State admits two allegations about the promulgation of a
no-solicitation rule.)
For the first of the Government’s 22 witnesses, the General
Counsel called Mid-State’s president, William R. Samples.
Samples also testified as one of Mid-State’s eight witnesses, as
did his son, Vice President and General Superintendent Wil-
liam R. Samples Jr. [References to “Samples” are to President
Samples, and “Samples Jr.” refers to Vice President Samples.]
Kenneth G. Sykes, the Union’s organizer and representative at
trial, and one of the General Counsel’s witnesses, also testified
as the Government’s rebuttal witness. Mid-State offered no
evidence in surrebuttal.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and by Mid-State, I make these
FINDINGS OF FACT
A. Mid-State’s Operations
An electrical subcontractor in the construction industry,
most of Mid-State’s work is commercial construction. (1:47,
Samples). The company commonly is known, on the “street,”
as Mid State Electric. (1:48). Mid-State maintains its office at
Gainesville, Florida. (6:1166, Samples Jr.). Mid-State appar-
ently was founded by Samples and a Mr. Griner at some time
before 1979. Griner retired in 1994. (5:896). For a time,
Mid-State operated under a prehire contract with the Union,
but that relationship ended in July 1979. (1:48, 68; 6:1100).
Since then, Mid-State has operated nonunion. (1:48). From
that relationship in the 1970s, Samples (1:82) has known the
Union’s current business manager, Harold Higginbotham
(4:756–757), and (1:80) Kenneth Sykes, assistant business
1 All dates are for 1996 unless otherwise indicated.
2 References to the six-volume transcript of testimony are by volume
and page. Exhibits are designated JX for the joint exhibits, GCX for
the General Counsel’s, and RX for those of Respondent Mid-State. No
exhibits were offered by the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1374
agent and organizer (4:805), who in those days worked as a
journeyman (1:80). Sykes testified that he and Samples Jr.
worked together as journeymen in the 1970s. (4:828). Sykes
and Higginbotham were among the Government’s witnesses
here.
[In the Government’s opening statement, the General Coun-
sel asserts (GCX 2 at 1) that the case is about an employer
who decided he no longer wanted to use union labor “because
he wanted to put more money in his own pocket.” As no evi-
dence was offered thereafter to substantiate the quoted descrip-
tion of motivation ascribed to Mid-State, I shall disregard the
General Counsel’s unsubstantiated and inappropriate conjec-
ture.]
During 1996, Mid-State typically employed about 30 to 40
production, or field, employees. The “nonfield” employees
consisted Samples, Samples Jr., Office Manager Brenda
Thompson, a chief estimator, and a receptionist/secretary.
(1:67–68).
Field Superintendent William Patton McLeod was a promi-
nent witness for Mid-State. At least during the relevant time,
McLeod maintained a daily log, or notes that he usually wrote
at the end of each day. (5:957, 1004–1005). Samples Jr. testi-
fied that during the relevant time Mid-State did not have a
practice of issuing written warnings and entering such into an
employee’s personnel file. Instead, the foremen and job super-
intendents would talk with the individuals (6:1105) and would
maintain daily logs in which they would enter notes about
(6:1104) “events that happened on the job.” It seems, there-
fore, that these logs of the field supervisors pertained more to
personnel matters than to progress of construction on the jobs.
That certainly is true of the portion (5:1004–1005) of the log
(GCX 19, not offered) maintained by McLeod which (RX 18,
received) is in evidence. Indeed, those notes (RX 18) of
McLeod are very much akin to logs frequently kept by super-
visors of employers involved in union organizing campaigns in
that McLeod’s notes here (RX 18) pertain mostly to union
matters and to employees identified, in the record, as support-
ers of the Union.
B. Overview of the Union’s Organizing Campaign
So far as the record shows, the Union began a campaign to
organize Mid-State by a program of “salting”—both overt and
covert. The salting began on April 30, 1996 when Union Or-
ganizer Kenneth Sykes and five other union members went to
Mid-State’s office. Speaking for the group, Sykes told the
receptionist that they were looking for work. The receptionist,
assertedly Kimberly Walton, said that Mid-State was not hir-
ing. Sykes asked whether they could leave applications, but
Walton said that Mid-State was not accepting applications,
names, or telephone numbers.
[Office Manager Brenda Thompson recalls that Walton was
not hired until May 6, 1996. (5:916, 926). The stipulated
(1:20–22) list of hires shows that Walton was not hired until
July 8, 1996 (JX 1 at 1). As Thompson explains, however,
Walton had been on the job as a Temporary Force temporary
employee for about 2 months before she was hired (as a regu-
lar employee) in July. (5:930–931). In any event, whoever
Mid-State had serving as the receptionist was Respondent’s
agent for the purpose of responding to routine employment
inquiries. AMI, 319 NLRB 536, 540 (1995) (“clerical em-
ployee”); Diehl Equipment Co., 297 NLRB 504, 504 fn. 2,
506–507 (1989) (“Beryl Dyer, seated at a desk immediately
inside the entrance.”).]
Sykes replied that they had heard from All Florida Electric
that Mid-State had borrowed some of All Florida’s employees
and that they therefore thought Mid-State might be needing
some men. The receptionist then summoned Samples Jr. and
Leon Burgess, an estimator. When they arrived, Sykes re-
peated what they had heard from All Florida Electric, stating
that they therefore thought that Mid-State might be needing
some help. They (Sykes recalls that Samples Jr. and Burgess
each spoke at times) said that Mid-State did not borrow any
employees from All Florida and that Mid-State was not hiring.
Sykes thanked them and the group left. (4:811–813, 831–
832).
On various dates thereafter, through January 21, 1997, as al-
leged in complaint paragraph 10, another dozen union mem-
bers, including Harold Higginbotham, Business Manager of
Local 1205 since June 1995 (4:757), attempted to apply for
work. All 18, who either openly were wearing union insignia,
or were otherwise indentifiable as part of a group of union
members, were told that work was not available and that ap-
plications were not being taken. None of the 18 was hired.
Mid-State contends that the requests came when Mid-State
was not hiring and that, for the most part, its jobs were wind-
ing down and other jobs had not reached the stage for needing
additional help. The General Counsel counters that, during the
same periods, Mid-State hired employees who previously had
worked nonunion.
By letter (GCX 4) dated January 29, 1997, the Union noti-
fied Mid-State that three of Mid-State’s employees were orga-
nizing on behalf of the Union: Michael Cooper, Jose Ayala,
and Steven James. As McLeod’s notes (RX 18 at 1) reflect,
that same day Cooper and Ayala informed McLeod that they
would be organizing for the Union. Two days later, on Janu-
ary 31 as McLeod’s notes reflect (RX 18 at 1), Daryl Thomp-
son, Steve James, and Mark Poucher informed McLeod that
they, too, were organizing for the Union. By its letter (GCX
3) of February 5, 1997, the Union confirmed this by adding
their three names (Daryl Thompson, Mark Poucher, and
Charles Albert) to its published list of employee–organizers,
bringing the total to six. The letters also were faxed, for when
Michael Cooper and Jose Ayala attempted to hand copies of
the letters to Superintendent McLeod about February 5, he
declined to accept, saying that they already had been faxed.
(2:135, 171).
Eventually, on March 7, 1997, the Union filed its election
petition (GCX 1y) in Case 12–RC–8071. Pursuant to a stipu-
lated election agreement approved March 21, 1997 by the Re-
gional Director for NLRB Region 12, an election was con-
ducted on April 18, 1997 among Mid-State’s employees in a
bargaining unit consisting of (GCX 1(ll)):

All electricians, electrician helpers and apprentices em-
ployed by the Employer at its Gainesville, Florida facil-
ity, excluding all other employees, guards, and supervi-
sors as defined in the Act.

The vote count was 4 Yes, 20 No, and 15 challenged bal-
lots. The challenged ballots were not sufficient in number to
affect the results of the election. The Union filed objections
on April 25, and NLRB Region 12 investigated them. By her
order of July 24, 1997, the Regional Director directed a hear-
ing on the challenged ballots and consolidated these cases for
MID-STATE, INC. 1375
hearing. The Region’s investigation obtained evidence that,
during the critical period of March 7 through April 18, 1997,
Mid-State engaged in certain additional conduct which is al-
leged as unlawful in the complaint. Such additional conduct,
not specifically alleged in the objections, is directed to be con-
sidered as additional objections to the election under estab-
lished Board law. The General Counsel relies on the alleged
8(a)(1) incidents, plus the testimony of former receptionist
Michelle DeBois, to show animus.
C. Asserted Background Animus
To show background animus, the General Counsel called
Michelle DeBois. Hired in May 1994 on a 6-month probation-
ary (in effect) basis, DeBois worked as a receptionist for Mid-
State until her November 1994 layoff for lack of work. (1:99,
109–110, 113–114; 5:897–898). When Office Manager
Brenda Thompson (Debois’ supervisor) took a day off before
Thanksgiving, DeBois approached President Samples about
taking on more of Thompson’s work because she, DeBois, was
not busy. When Thompson returned, Samples told her that if
DeBois did not have enough work to keep her busy then De-
Bois’ employment should be terminated. Thompson called in
DeBois and explained the basis of her layoff. Reacting an-
grily, DeBois flung open the glass door of Thompson’s office
with a bang, stormed out of Thompson’s office (calling
Thompson a “stupid bitch” when Thompson offered her help
in finding other employment), and drove off to the sound of
her tires squealing in the parking lot. Thompson treated the
termination as a layoff and did not contest DeBois’ claim for
unemployment compensation. (5:909–912, 935).
DeBois testified that certain statements were made to her by
Samples (about not handing out applications because the ap-
plicants were union) and Thompson (that Mid-State swapped
employees with Preston Electric, and hired former employees,
to avoid the Union). I credit Samples and Thompson over
DeBois. As they credibly report, Samples explained to De-
Bois that Mid-State gives out applications only when it is hir-
ing, and that they would advise DeBois when Mid-State was
hiring. Nothing was said about a union. The documentary
evidence (RX 16) supports the version of Samples, Samples
Jr., and Thompson that, in 1994, Mid-State loaned employees
to Preston Electric. If Preston Electric’s records reflected that
Mid-State had borrowed any of Preston Electric’s employees
during 1994 (in, supposedly, some effort to avoid hiring union
employees), presumably the General Counsel would have sub-
penaed and introduced such documents. The Government
offered no such documents.
Admitting that she went to Union Representative Sykes
when she was laid off, and that she was angry, DeBois asserts
that her anger was not at Mid-State, but at her (perceived)
mistreatment and the (claimed) mistreatment of others.
(1:122-123). DeBois’ demeanor impressed me unfavorably.
In light of that and the record evidence, I find that, as a wit-
ness, DeBois was, and remains, so angry at Mid-State, and so
filled with a desire for revenge over her termination, that her
testimony is unreliable. I do not credit her description of inci-
dents which, with a different finding, could show background
animus.
Just as DeBois was excused as a witness, Mid-State re-
quested any statements given by her in the Government’s pos-
session. I denied the request as untimely. (1:123). See Long-
shoremen ILA Local 20 (Ryan-Walsh Stevedoring Co.), 323
NLRB 1115, (1997) (request untimely when made well into
the cross examination).
For another example of background animus, the General
Counsel offered the testimony of Bruce Audette. Audette
testified with an unfavorable demeanor and, generally, I do not
believe him. According to Audette, who was rehired in early
April 1996 at $8 per hour by Samples who remembered Au-
dette from his earlier employment with Mid-State (4:685, 689,
752), he initially spoke with Samples Jr. who said that Mid-
State was not hiring. Audette persisted, pleading that he
needed a job. To Samples Jr.’s (asserted) question, “Are you
in the Union?” Audette replied no, adding that he had worked
for Mid-State about 10 years earlier. At that Samples Jr. said
that Audette could go talk to Samples at the shop. (4:685–686,
744, 752). The General Counsel offered the foregoing only for
background animus. (4:686–688). [It seems a bit odd that the
incident was not included in the complaint, for the early April
1996 date is within the statutory limitation period.]
During his own testimony, Samples Jr. does not address this
matter. That omission perhaps was an oversight, for Mid-State
(Brief at 25 fn. 6) represents that counsel overlooked asking
Samples Jr. about the alleged June 7, 1996 threat (discussed in
a moment) not to hire union supporters. Nothing is repre-
sented there about the claimed April 1996 interrogation.
Audette’s report of the single-question interrogation was de-
livered in a rather contrived fashion [he fumbled the phrase at
first, 4:686, and on cross examination shifted to a more natural
phrasing, “asked me if I was Union,” 4:744], suggesting that
he was repeating a memorized phrase to be “planted” in an
otherwise legitimate conversation. While the conversation
could include such a question and answer, without the claimed
interruption the conversation has a smooth and logical flow,
with Samples Jr. not referring Audette to Samples until Au-
dette mentioned that he previously had worked for Mid-State.
Although Audette was not a union member in April 1996, he
joined the Union about early August 1996. (4:684, 691–692;
GCX 13). Not believing Audette, I find that he fabricated the
single-question interrogation and planted it in the conversation
with Samples Jr. in a clumsy attempt to harm Mid-State.
D. The Incidents of Alleged Animus
1. June 7, 1996—William R. Samples Jr.
According to Audette, on June 7 Samples Jr., while deliver-
ing paychecks, approached Audette and Tony Baccili where
the two were working. Calling Audette aside, Samples Jr.
asked him if he knew of any qualified persons who needed a
job, “but I don’t want anybody that’s a Union member.”
[Complaint paragraph 5.] Saying he did not know of anyone,
Audette said he would ask around, but “I never referred any-
one to him.” (4:690–691). On cross-examination Audette
recalls the phrasing as, “asked me if I knew any electricians
that were nonunion that were good electricians, that needed a
job,” and that Samples Jr. “just said that he didn’t want to hire
Union people.” (4:745).
Already a covert member of the Union when he was hired
on May 17 (3:517–518, 520, 534–535, 561; JX 1 at 1), An-
thony Baccili Jr. (who gave no pretrial affidavit to NLRB Re-
gion 12, 3:530) maintained his own log (RX 8) of events at
Mid-State. In his log for June 7, Baccili made a note that the
word being passed around on the job was that Mid-State was
temporarily running out of work and that there would be a
layoff in July. (3:536–537). Indeed, Baccili testified that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1376
medical center job, to which he was assigned on being hired
(3:519, 531), already was near completion when he arrived on
the job (3:531). Baccili was assigned to install some telephone
conduits at the medical center. (3:532–533; 6:1143).
The key point here respecting Baccili is that the General
Counsel did not ask him to corroborate Audette’s testimony
that, on June 7, Samples Jr. came through distributing pay-
checks, pulled Audette aside and held a brief conversation
with him. In view of the friendly relationship between Baccili
and Audette, it seems reasonable to find, as I do, that Audette
would have reported to Baccili the contents of his supposed
conversation with Samples Jr. Moreover, one would assume
that—had it happened—Baccili would have noted this event in
his log (RX 8) for June 7, especially the part about Samples
Jr.’s not wanting to hire any Union people. As the General
Counsel did not ask Baccili about his event, I find that the log
contains no entry for such an event.
In view of Baccili’s failure to corroborate Audette’s claimed
version of the asserted June 7 conversation with Samples Jr.,
and in light of Audette’s lack of credibility, I find that no such
conversation occurred. Accordingly, I shall dismiss complaint
paragraph 5.
2. August 7 and 12, 1996—Don Patscheider
As amended at trial (3:517), complaint paragraph 6 alleges
that Mid-State, by Patscheider, “orally promulgated a no so-
licitation rule which prohibited solicitation during break time.”
By its answer, Mid-State denied. The evidence convinced
Mid-State otherwise. “Based upon the testimony presented,
Mid-State now admits to this violation.” (Brief at 40). On
brief Mid-State represents that the supervisors at Mid-State
found out, too late, that the employees had a right to solicit for
the Union in the construction trailer during breaks. Mid-State
also notes that no employee actually was stopped from engag-
ing in such solicitation, nor was any employee disciplined for
such conduct. Nevertheless, such a rule tends to discourage
support of a union. I find that the rule violates Section 8(a)(1)
of the Act, as alleged in complaint paragraph 6 (in conjunction
with paragraph 14), respecting no soliciting in the job trailer
(where many employees took their breaks).
3. Patton McLeod
a. August 12, 1996
Complaint paragraph 7(a) alleges that Superintendent Patton
McLeod, about August 12 at the University of Florida’s Phys-
ics Building jobsite (in Gainesville), “threatened that Respon-
dent would close its business if employees were represented
by the Union.” Mid-State denies. In support of the allegation,
the General Counsel called Anthony Baccili Jr. and Bruce
Audette, and Mid-State called William Patton McLeod.
As described by Baccili (who impressed me as straightfor-
ward, candid, and credible), on August 12 he and Audette
approached Superintendent McLeod outside the general
contractor’s trailer. Baccili told McLeod that he was going on
an unfair labor practice strike because he was told he could not
solicit for the Union during employee breaks in the construc-
tion trailer. McLeod said he could not stop him. (3:528–529,
550–552). Audette (3:551; 4:699) told McLeod that he, too,
was going on strike. (5:971–972, 1013–1015, McLeod).
Baccili told McLeod that he had worked for him and re-
spected him, but that if McLeod’s wife “should happen to get
hit by a car tomorrow, you have absolutely no insurance. You
have nothing there for your future, as far as working for Mid-
State. There are no benefits.” “But, Tony,” McLeod replied,
“the only thing about it is, Billy Samples Jr. will not go union.
He will fold this shop, and basically, he will put me out of
work.” (3:552). I do not credit Audette’s somewhat different
version of the conversation because it differs from Baccili’s
and because, as I have found, Audette is an unreliable witness.
Nor do I credit McLeod’s denial that he said anything about
the company’s closing. (5:972).
It is immaterial that McLeod’s shutdown statement could be
interpreted as his own opinion of what the owner would do,
and this is true even though Samples Jr. (6:1101) owns none of
Mid-State’s stock. Nothing in the record indicates that Sam-
ples Jr. ever disclosed to any employee the fact that he owned
none of the stock. Because of McLeod’s status as a superin-
tendent, and his daily working relationship with Vice President
Samples, in this small family-owned company, employees
reasonably would conclude (as, in effect, Baccili did conclude,
3:554) that McLeod had heard Vice President Samples make
this prediction.
Such prediction was not based on any described objective
facts. An employee would have no way of knowing whether
the Samples were financially able to retire rather than deal
with a union. McLeod’s statement was nothing less than a
threat of retaliatory closing. I find that, as alleged, Mid-State
violated Section 8(a)(1) of the Act by Superintendent
McLeod’s threat that Vice President Samples would close the
company rather than see the employees represented by a un-
ion.
b. February 3, 1997
Complaint paragraph 7(b), in conjunction with paragraph
14, alleges that Mid-State violated Section 8(a)(1) of the Act
about February 3, 1997 when Superintendent McLeod “created
the impression that employees’ union activities were under
surveillance.” Mid-State denies. To prove this allegation, the
General Counsel called Jose Ayala. McLeod testified in oppo-
sition.
The morning of Monday, February 3, 1997, Ayala testified
(2:276–277, 294), Aaron Harvey was assigned to be his helper.
When Ayala was on a ladder later that morning, Superinten-
dent McLeod came and called Harvey from the room. Al-
though McLeod and Harvey apparently stood outside the
room, Ayala could hear McLeod tell Harvey that if Ayala
starts talking about the Union, “you tell him you’re not inter-
ested and let me know right away.” Harvey did not testify.
McLeod testified that other employees (Dan Kelly and an-
nounced Union supporter Steven James) supposedly had com-
plained to McLeod that Ayala was talking too much and inter-
fering with their working. (5:947–948, 950). This was before
Ayala was moved to work alone in the basement. Because
Ayala has a health condition cautioning against his working
alone on a ladder, a helper (Aaron Harvey) was assigned to
assist Ayala (5:948–949). According to McLeod, Harvey
approached him (no location specified), said he had no desire
to join the Union, did not want to lose his job, did not want to
hear anything from the Union, and if Ayala continue to talk
about it, what should Harvey do.
McLeod told Harvey that he could tell Ayala that he had no
desire to join the Union or to hear about it, and if Ayala, or
anyone, continues, then “let me know” and McLeod would
MID-STATE, INC. 1377
handle it. At best, this is only an indirect rebuttal of Ayala’s
version.
Ayala testified in detail. Few details are given by McLeod,
and none describing the location of the supposed conversation
with Harvey. Presumably it was later than the first morning of
the assignment in order for there to have been time for conver-
sations. Ayala asserts that, as of the time of McLeod’s visit to
Harvey, Ayala had not spoken to Harvey about the Union.
(2:295).
Crediting Ayala’s detailed account, persuasively described,
over McLeod’s generalized version, I find that the event oc-
curred as Ayala describes. The General Counsel argues that
McLeod’s “let me know right away” solicited Harvey to spy
on Ayala’s union activities and would tend to create the im-
pression that Ayala’s union activities were under surveillance.
Agreeing with the General Counsel, I find that Mid-State, by
Superintendent McLeod’s conduct of February 3, 1997, vio-
lated Section 8(a)(1) of the Act, as alleged in complaint para-
graph 7(b).
c. April 14 and 16, 1997
Complaint paragraph 7(c) alleges that, about April 14 and
16, 1997, Superintendent McLeod “threatened physical vio-
lence against a union organizer in the presence of employees.”
Mid-State denies.
Rehired on March 19, 1997, Zot Szurgot had worked for
Mid-State 4 weeks in the summer of 1996. (3:418, 432; JX 1
at 1, 4). He joined the Union some 3 to 4 weeks before the
April 18, 1997 election. He wore no union insignia. About 6
weeks after the election, Szurgot left Mid-State for a better job
with a union contractor. (3:430–431).
About Monday, April 14, 1997, in Mid-State’s construction
or job trailer at the jobsite, a discussion ensued concerning
visits the past weekend to employee homes by Ken Sykes of
the Union. At least two or three employees were present, plus
Superintendent McLeod. Some employees expressed their
objections to these home visits. McLeod, Szurgot testified,
stated, “If he [Kenneth Sykes] comes onto my property, I’ll fill
his butt with lead. Florida law says I can defend my property
that way.” (3:424–425, 439–441).3 Responding to a question
on cross examination whether McLeod appeared to be brag-
ging rather than making a statement of serious intent, Szurgot
testified that it would be difficult for him to gauge McLeod’s
seriousness because McLeod is a “go-getter,” a person who is
“ready to pick up and do things at a moment’s notice.”
(3:439). McLeod denies threatening to shoot Sykes, and ac-
knowledges that he said that Sykes would be asked to leave if
he came to McLeod’s house, and that McLeod had a “big bad
dog.” (5:976–977).
Crediting Szurgot, I find that, on such occasion, Superinten-
dent McLeod simply expressed a bit of preelection exaggera-
tion. Finding that such hyperbole would not tend to be coer-
cive, in the context of an informal discussion in which several
employees were expressing displeasure at home visits by the
Union’s organizer, and in view of the fact that the statement
carried no threat of offensive action by McLeod, I shall dis-
miss complaint paragraph 7(c) as to April 14, 1997.

3 At trial, the General Counsel forgot about the Florida law portion
(3:439–440), and that mental lapse carried over into the Government’s
brief (Br. at 17).
Daryl Thompson was hired by Mid-State on January 20,
1997 (2:131; JX 1 at 4). Although Thompson (the Union’s
observer at the April 18, 1997 election; 2:158) denies being
sent by the Union as a covert salt, claiming that he merely
obtained permission to work at Mid-State by alerting the Un-
ion that he probably would apply (2:167), Union Organizer
Sykes, who was present throughout the trial (6:1189), directly
contradicts this, testifying that he personally sent Thompson to
apply as a covert salt (6:1193). Apparently supporting
Thompson’s version, Samples Jr. credibly asserts that, when
he hired Thompson, Thompson was wearing an IBEW ball
cap. (6:1107).
Aside from this dispute between Thompson and Sykes,
Thompson testified that about April 16 (2 days before the Au-
gust 18, 1997 election) he passed out copies of a union elec-
tion flyer to employees (including Mark Poucher and John
Ulmer) and management standing by the job trailer at the
Physics Building just after the 3:30 p.m. quitting time. Ac-
cording to Thompson, Samples Jr., pointing a finger in
Thompson’s face, began screaming about Union lies.
McLeod, standing about 2 feet higher on a walkway leading to
the trailer door, “screamed” down that Thompson did not
know shit, that Kenny Sykes was a fucking asshole, and that if
Sykes were to come over there right then that McLeod would
“kick his ass.” Thompson does not recall the content of the
flyer he distributed. Thompson acknowledges that, at some
point, there was an issue over the Union’s purported circulat-
ing a story that Superintendent McLeod was a member of the
Union, a rumor which McLeod “vehemently denied.” Finally,
Thompson concedes that, so far as he knew, Union Organizer
Sykes had no plans that day to come to Mid-State’s job trailer
at the Physics Building. (2:154–156, 189–191, 195).
McLeod made a note of the April 16 “altercation” between
union and nonunion employees that occurred that day after
work. (5:976; RX 18 at 10). Earlier that week, apparently,
Mid-State had sent letters to employees advising that the ru-
mor of McLeod’s membership in the Union was false. (5:975;
RX 18 at 10). [Mid-State did not introduce a copy of the letter
for the record.] Irritated at the lies purportedly promoted by
the Union, on this April 16 McLeod told Daryl Thompson that
it was the second time that the Union had said he was a mem-
ber of the Union. McLeod stated that he was not a member of
the Union, and that “Kenny Sykes was a liar if he said” that
McLeod was a member. McLeod added that Thompson
should so tell Sykes, and if Sykes did not like it, “we could
step across the fence and settle it like men.” McLeod denies
saying he would kick Sykes’ ass. (5:976; RX 18 at 10). Sam-
ples Jr.’s version is consistent with McLeod’s. (6:1163).
Finding some embellishment by Thompson as to McLeod’s
“screaming,” I credit both Thompson and McLeod in finding
that, on this occasion, McLeod, upset about lies about him,
which he attributed to the Union, told Thompson that, if Sykes
came over right then, McLeod would “kick his ass.” As
McLeod’s expression of outrage was based strictly on asserted
lies by the Union about his rumored membership in the Union,
and not on any protected activities of employee or of the Un-
ion on their behalf, I find that McLeod’s threat to whip Union
Organizer Sykes would not tend to coerce employees in the
exercise of their Section 7 rights. Accordingly, I shall dismiss
complaint paragraph 7(c) as to April 16, 1997, and, therefore,
paragraph 7(c) in its entirety.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1378
4. February 3, 1997—William R. Samples
Complaint paragraph 8(a) alleges that, about February 4,
1997, President Samples orally promulgated “a no solicitation
rule which prohibited solicitation during breaks.” By its an-
swer, Mid-State denied the allegation. As earlier noted, how-
ever, on brief (Brief at 40) Mid-State admits both allegations,
complaint paragraphs 6 and 8(a). As I stated earlier, the evi-
dence justifies this admission by Mid-State. Accordingly, by
such promulgation on February 3, 1997 (the correct date), I
find that, as alleged, Mid-State violated Section 8(a)(1) of the
Act.
Complaint paragraph 8(b) alleges that, about February 4,
1997, President Samples “Threatened to sue employees per-
sonally in retaliation for their union activities.” Mid-State
denies.
As Superintendent McLeod’s notes reflect (RX 18 at 2), on
Monday, February 3, 1997, a meeting was held between the
management (President Samples, Vice President Samples Jr.,
Superintendent McLeod, and Foreman Bernie Oberst) and the
employee organizing committee (Daryl Thompson, Michael
Cooper, Jose Ayala, and Steven James). That morning Fore-
man Oberst told the four employees to follow him to the job
trailer where they assembled before the waiting management
group. President Samples spoke for the management group.
(2:137–138, Thompson; 2:271–273, Ayala; 5:962, McLeod).
Samples asked what they meant by a reference in one of
their flyers to Section 7 of the Act. Thompson said that the
law permitted the employees to organize. Samples said that as
long as the group stuck with that they would have no problem.
Then producing one of the Union’s recent flyers (no copy
identified or offered into evidence), Samples displayed the
flyer for all to see. Pointing to the inscription at the bottom
asserting authorship by the Mid-State Organizing Committee,
Samples asked if that was the group. Each employee said yes.
Samples then asked who was the chairman. Thompson said he
was. To confirm that fact, Samples asked each of the others if
Thompson was chairman of the organizing committee, and
each replied yes.
At that point Samples again picked up the flyer. He told the
group of employees that the flyer contained false statements.
(The flyer had a small cartoon picture of a tearful young girl
asking, “Why doesn’t my daddy have insurance?”). Samples
said he had been advised that he could sue them for slander
because Mid-State does provide insurance for employees.
Thompson said that if Samples had a complaint he should
speak to the Union. Samples answered that he would not deal
with the Union, and that as they were the organizing commit-
tee, he could sue each of them for slander. Thompson said that
if Samples felt that was necessary then he should proceed in
whatever manner he thought proper. Samples replied that he
would not sue, or was not planning to sue, or had no intention
of suing them. About then the meeting ended. During the
meeting, Samples spoke in a calm manner. (2:138–140, 174–
175, 273–274, 296; 5:962, 1013).
At trial Thompson was unable to recall much about Mid-
State’s insurance benefit, but he (2:176) and Ayala (2:297)
testified that employees had to pay for all or part of their cov-
erage. Mid-State offered no evidence describing its health
insurance coverage for employees and what portion, if any, of
the premiums the employees had to pay as of February 1997.
As a result, the record is left in something of an ambiguous
state concerning the extent of coverage if employees did not
elect to pay for coverage. Moreover, as Thompson testified,
employees had to wait 90 days before they were eligible. Mid-
State’s insurance “didn’t necessarily cover everyone in the
jobs is, was the point being made.” (2:176). One aspect
which is clear is that there was no showing that the flyer’s
cartoon statement was made in bad faith (that is, “knowing
that the statement was false and made with a reckless disregard
for the truth”). See HCA/Portsmouth Regional Hospital, 316
NLRB 919 (1995).
The General Counsel argues that having the three top man-
agers (Samples, Samples Jr., and McLeod) facing and con-
fronting the employees, combined with the threat that he could
sue each of them individually, but had no intention of doing
so, was calculated to chill the union activity of the leaders and
“to coerce the employees into forsaking their union activity.”
For its part, Mid-State argues that there was no threat and no
employee could have been intimidated by Samples’ statement
of no intention of suing. No party cites any cases in support of
its position or discusses whether the action of the employees
was protected or unprotected.
The staged confrontation is rather similar to that which oc-
curred in Greenfield Mfg. Co., 199 NLRB 756 (1972). As for
the expressed potential for suing the individual members of the
organizing committee, I find that it was a threat to sue, with
the threat suspended indefinitely. Different ramifications at-
tach to a threat to sue as distinguished from the actual filing of
a civil lawsuit. As to the latter, see Braun Electric Co., 324
NLRB 1 (1997). Respecting threats to sue for slander or liable
because of, as here, protected activity, such threats violate
Section 8(a)(1) of the Act. Wellstream Corp., 313 NLRB 698,
706 (1994).
Agreeing with the General Counsel, I find that, as alleged in
complaint paragraph 8(b) (except as to the date), Mid-State
violated Section 8(a)(1) of the Act by the staged confrontation
of February 3, 1997, in which President Samples, in the com-
pany of his top management, threatened the possibility of a
lawsuit against the individual employees for their ostensibly
protected conduct. The fact that Samples said he had no inten-
tion of exercising his right to sue is no guarantee that he would
not change his mind in the future. The point had been made—
he could sue, but had no (present) intention of doing so. The
qualifying phrase of no (present) intention of suing does not
remove the chill of the staged confrontation or the suspended
sting of the “could sue” threat. The violation is established.
5. Tommy Dampier
a. February 19, 1997
About February 19, 1997, at Mid-State’s jobsite in Cedar
Key, Florida, complaint paragraph 9(a) alleges, Mid-State, by
Supervisor Tommy W. Dampier Jr., “promised employees
continued employment if they opposed the Union.” By its
answer, Mid-State denies.
When hired January 20, 1997 (2:131; JX 1 at 4), Darryl
Thompson already was a member of the Union. (2:131). As
discussed moments earlier, Thompson was chairman of the
Mid-State Organizing Committee whose members, on Febru-
ary 3, 1997, were threatened with a lawsuit by President Sam-
ples. Although residing at Trenton, Florida, as of the trial
(2:130), Thompson apparently lived at Chiefland, Florida, in
February 1997 (6:1132, Samples Jr.).
About mid-February 1997, Thompson agreed to a temporary
transfer to Mid-State’s Cedar Key jobsite. (2:148). Samples
MID-STATE, INC. 1379
Jr. asked Thompson because Thompson, who then lived at
Chiefland [about 40 miles southwest of Gainesville, per an
atlas] was closer than any of the other employees to Cedar
Key. (2:180; 6:1132). Cedar Key, which lies just off the coast
some 60 miles or so southwest of Gainesville, was the location
of the construction of a marine research center. (5:1048–1049,
1051; 6:1132). Dampier was the job foreman there. (5:1048;
6:1131).
One morning a few days after Thompson’s arrival at the
Cedar Key jobsite, Foreman Dampier called Thompson into
the job trailer and engaged him in discussion about union mat-
ters. In this discussion, Thompson testified, Dampier “told me
that I was throwing away an opportunity to have a permanent
job with Mid-State Electric because of my standing for the
Union.” (2:144–145, 149).
Dampier testified that, from Thompson’s first day at the
Cedar Key jobsite, Thompson wore a Union jacket, Union
insignia, and had Union stickers on his toolbox. Dampier
denies the conversation about permanent employment.
(5:1057–1059).
Apparently to show unalleged animus (2:136), the General
Counsel cites an additional portion of the asserted conversa-
tion in which, Thompson testified, Dampier, becoming agi-
tated, said that if Mid-State went Union, Mid-State would fire
everyone, including Thompson, who did not have a journey-
man’s license from the county. Because of a lack of carded
journeymen, Mid-State would have to close its doors within 2
years. That is, because Mid-State would have to pay higher
wages, it would not pay unless the person possessed a jour-
neyman’s license (card). Thompson and all those joining the
Union would be fired. (2:145–147, Thompson).
Acknowledging a conversation with Thompson about what
would happen if the Union won an election and had to pay
union scale, Dampier explains that he told Thompson that if
Mid-State went union the company, in view of having to pay
top dollar for journeymen, would call for the best from the
Union. In his experience, Dampier told Thompson, Thompson
was not one of the best. And if Mid-State had to pay top dol-
lar (union scale) for electricians who were substandard, it
eventually would put Mid-State out of business. (5:1059–
1060). Thompson concedes that Dampier advanced arguments
about the “top dollar/licensed journeymen” and “poor qual-
ity/close doors” points. (2:184-186). Dampier earlier had
been a member of the Union for several years, and had left
with an unfavorable image of the Union. (5:1047, 1065–
1066).
Thompson’s account of the conversation is a bit garbled,
and he delivered it with some hesitation. By contrast, Dampier
testified persuasively. Crediting Dampier’s version, I find that
there was no reference to a permanent job with Mid-State.
Respecting the animus portion. Dampier’s account of the con-
versation describes his view of economic forces which would
put a financial squeeze on Mid-State. That personal view,
whether correct or not, does not reflect animus. Accordingly, I
shall dismiss complaint paragraph 9(a).
b. March and April 1997
Complaint paragraph 9(b) alleges that, about March and
April 1997, at the Cedar Key jobsite, Supervisor Dampier
“stated that employees could not receive raises because of the
union campaign.” Mid-State denies. Stephen L. Suggs testi-
fied in support.
Hired about February 5, 1996, Suggs began working at the
Cedar Key project in the fall of that same year. (3:566–567,
588). Suggs rode to and from work with Job Foreman Dam-
pier. (3:570, 576; 5:1051, 1064–1065). Suggs testified that,
beginning 4 to 5 weeks before the Board-conducted election of
April 18, 1997 [so, beginning a few days after the Union filed
its March 7 election petition], Suggs asked Dampier each
week, a total of some four to five times, for a pay raise. These
requests were made at the jobsite and when the were riding in
the company’s truck. (3:570–575).
According to Suggs, Dampier replied that Samples Jr. had
told him that no one could receive a pay increase (before the
election) because it would show favoritism to those who were
not openly supporting the Union. [Suggs joined the Union
about March 18, 1997. He had not revealed that fact to anyone
and had not worn any Union insignia. (3:576, 586).] If Suggs
was going to be angry, Dampier added, he should be angry
with the Union, for it was the Union’s fault that Suggs could
not receive a pay raise. (3:572–575, 601–602). Asked why he
persisted in repeating his request each of the 4 to 5 weeks be-
fore the election [approximating the critical period before the
election], receiving the same explanation each time, Suggs
testified that he knew Dampier’s explanation to be false be-
cause “the company would do anything they can to keep from
giving me a raise.” For his source of information, Suggs relied
on his personal experience (although that personal experience
does not include any union campaigns) and information from
unidentified union members. (3:603). Finally, I note that
Suggs insisted to Dampier that the raise had to come before
the election, not after. (3:605). Dampier never told Suggs to
find another ride to work. (3:606).4 According to Suggs, at
some point, apparently before the April 18 election, he person-
ally asked Samples Jr. for a raise. Samples Jr. said he would
grant one, but, Suggs asserts, “I never got it.” (3:602). [Suggs
quit after his last day of work, Monday, April 21, 1997, fol-
lowing the Union’s loss of the election. (3:600). Dampier
testified that Suggs called the following morning, Tuesday, to
say that he would be late and not to stop to pick him up. That
was the last Dampier ever saw of Suggs. (5:1061–1062).]
Acknowledging that Suggs did ask him for a preelection
raise while they were working on the Cedar Key project, Dam-
pier asserts that he told Suggs he did not think it could be done
because it would look like favoritism or buying a vote.5
Nevertheless, Dampier checked with Samples Jr. who con-
firmed his understanding. Dampier reported Samples Jr.’s
response to Suggs, and Suggs did not ask again. After the
election, Dampier testified, Suggs was given a pay increase.
(5:1052–1054). As a witness, Dampier was not specifically
asked about Suggs’ claim that Dampier had told him to be
angry with the Union if he was going to be angry with some-
one.
Neither party offered any payroll records or pay stubs on the
matter of whether Suggs received a pay increase at some point
in 1997. Although Suggs’ last workday was the Monday fol-
lowing the election, a pay increase possibly could have been
effective then, or scheduled for that week. As the parties did

4 LL. 16–17, at 3:606, should read: “. . . to ride with someone else
so you wouldn’t keep asking him?”
5 Sometime in late 1996, Dampier received training in the Do’s and
Don’ts of a union campaign. (5:1049–1050).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1380
not develop the evidence on this point, and as there is no alle-
gation respecting it, I need not resolve the mystery.
Respecting the issue which is alleged, I credit Supervisor
Dampier over electrician Stephen L. Suggs. On this point
Suggs projected an unfavorable demeanor, giving the impres-
sion that he had invented portions of his story after the fact. I
do not believe him. By contrast, Dampier delivered his ver-
sion in a straightforward and believable fashion. I credit him.
Dampier was not specifically asked about Suggs’ claim that
Dampier had said Suggs should be angry with the Union, if at
anyone, for it was the Union’s “fault” that Suggs could not get
a pay raise. Dampier’s version implicitly rebuts that charge.
In any event, in crediting Dampier, and noting the lack of evi-
dence that Suggs was so upset that he might have appeared
angry, I expressly do not credit Suggs’ claim that Dampier
said it was the Union’s fault he could not get a raise. Accord-
ingly, I shall dismiss complaint paragraph 9(b).
c. March 26, 1997
Complaint paragraph 9(c) alleges that, about March 26,
1997, at the Physics building jobsite at the University of Flor-
ida, Supervisor Dampier “interrogated employees about their
union sympathies.” Mid-State denies. On brief, both parties
refer, for the supporting evidence, to the testimony of Zot
Szurgot. However, alleged discriminatee Charles Albert Jr.
also gave supporting testimony.
Rehired March 19, 1997, Zot Szurgot began working at the
Physics Building jobsite. (3:417, 419–420; JX 1 at 4 and
3:376). Around late March to early April 1997, Szurgot testi-
fied, Supervisor Dampier came to the Physics Building pro-
ject. Szurgot observed Dampier going from man to man. As
the workstations were reasonably close, Szurgot could hear
that Dampier was talking about the Union. At that time, Szur-
got wore no union insignia and had not openly expressed any
support for the Union [or, so far as the record shows, any posi-
tion against the Union, either]. (3:421–422). Szurgot joined
the Union some 3 to 4 weeks before the election. (3:430–431).
It is unclear whether he was a member as of Dampier’s visit to
the jobsite. Szurgot left Mid-State about June 1, 1997 for “a
better Union job.” (3:431).
When Dampier reached Szurgot on this occasion, he intro-
duced himself, asked whether was aware of the upcoming
election, and whether Szurgot would permit Dampier to relate
some of his personal experiences with the Union. Szurgot
consented. Dampier showed him a notice from an insurance
company informing Dampier that his insurance had lapsed.
This predated Dampier’s employment with Mid-State. Dam-
pier explained that he had been unemployed at the time and
that the Union had not provided him any insurance. According
to Szurgot, Dampier then “asked me which way I was going to
go.” Not answering directly, Szurgot said that he knew who
had given him his job and it was not the Union. (3:423).
Dampier had dropped out of the Union in 1993. Although a
unionized employer was willing to hire Dampier (when Dam-
pier was unemployed, when his unemployment compensation
had been exhausted, and when he was surviving on food
stamps), the Union, as Dampier reports, would not clear him to
work because Dampier was unable to pay his dues that were in
arrears. (5:1065–1066). Conceding that, on the occasion of
this visit to the jobsite, he had spoken to each worker, Dampier
testified that he told each one he wanted to tell them about the
Union, that he was not going to ask them how they were going
to vote, and that they did not have to listen if they did not want
to do so. He then told them that if they wanted to work in
town rather than traveling that the Union would not be a good
choice. The previous year, Dampier asserted, the Union had
not obtained a lot of work. Indeed, when he had been working
out of the Union, he had been number 300 on the “books,”
meaning, Dampier explains, that he was number 300 waiting
in line to be dispatched to a job. (5:1054–1055).
[Dampier’s description at trial appears not to be fully articu-
lated. He seems to imply that, if Mid-State went union and
Mid-State, by contract, first had to call the Union for referrals
of electricians, current employees of Mid-State would, in ef-
fect, lose their jobs because they would be at the bottom of a
long out-of-work list. Moreover, when they were called for a
job, it probably would be for a job quite some distance from
Gainesville. If this was Dampier’s message, and if the Union
was unable to rebut it effectively (by, for example, explaining
that a signatory contractor may call for employees by name so
that current employees of Mid-State would not lose their jobs
there), then the employees no doubt saw a vote for the Union
as economic suicide. That would tend to explain the Union’s
lopsided 4 to 1 loss in the election of April 18, 1997.]
Respecting his conversation with Zot Szurgot, Dampier as-
serts that, after obtaining Szurgot’s consent to describe his
personal [and unfavorable] experiences with the Union, Dam-
pier asked “no more questions” of Szurgot. “Everything there
was facts from me to him.” (5:1056).
As between Szurgot and Dampier, I credit Dampier. Szur-
got’s account has such an abrupt fit with the brazenly direct
question. While that is not an impossible conjunction, the fit
is not a smooth transition, nor is it packaged in a more subtle
approach, such as asking Szurgot whether he had any friends
or relatives who had ever had any bad experiences with un-
ions—an approach calculated to get Szurgot talking so that an
assessment could be made on how he would vote. The attrib-
uted question, by being so blatantly direct, is internally incon-
sistent with the conceded approach which Dampier took—up
front on the topic, and obtaining Szurgot’s consent for Dam-
pier to tell of his own experiences with the Union. The attrib-
uted sequence, which involves a mismatch, raises a real ques-
tion as to credibility. While neither witness presented a poor
demeanor, I was more favorably impressed with Dampier than
with Szurgot. With these considerations, and crediting Super-
visor Dampier’s account, I find that he did not interrogate Zot
Szurgot on this occasion.
Turn now to the testimony of Charles Albert Jr. Hired
about November 12, 1996 (2:217; JX 1 at 3), Albert has been a
member of the Union since 1994 (2:217). Only after he was
hired by Mid-State did Albert notify the Union and take on the
organizing duties of a salt. (2:252–253). About mid-February
Albert began wearing a Union shirt to work. (2:221). About
6:45 a.m. on March 26, as Albert was walking toward the job
trailer at the Physics Building, he passed Supervisor Dampier.
At the time Albert did not know Dampier nor his position with
Mid-State. Albert was wearing his Union shirt. Apparently
observing the shirt, Dampier asked, “Are you a union mem-
ber?” To this Albert responded, “Yes, and proud of it.” Al-
bert, who was making his Union connection “open and notori-
ous” by that time, continued walking. Dampier came after him
and insisted on relating how the Union had done him wrong
and that it would do the same to Albert. Albert testified that
he was not intimidated by any of this exchange. Throughout
MID-STATE, INC. 1381
the day Albert observed Dampier speaking with other employ-
ees, but Albert could not hear what was said. (2:223–225,
254). Dampier was not asked, during his testimony, about the
encounter with Albert.
Although I credit Albert’s uncontroverted account, I find
nothing coercive in Dampier’s question. Clearly Dampier’s
question was merely a springboard to what, on seeing Albert’s
Union shirt, Dampier wanted to tell Albert about IBEW Local
1205. Finding no coercion here, and crediting Dampier
respecting the conversation with Zot Szurgot, I shall dismiss
complaint paragraph 9(c).
d. April 18, 1997
(1) Facts
Complaint paragraph 9(d) alleges that, about April 18, 1997
[election day], while in a motor vehicle, Supervisor Dampier
“threatened violence against a union supporter.” Mid-State
denies. Stephen L. Suggs testified in support of this allega-
tion.
The General Counsel relies on two remarks assertedly made
by Supervisor Dampier as he and Suggs were sitting (or about
to ride) in the company truck which Supervisor Dampier
drove. (3:584; Brief at 21). The two men had driven in from
Cedar Key. It was early afternoon, about an hour before the
balloting began. (3:581–582). They had parked at the job
trailer at the Physics Building jobsite. (3:580–581; 5:1064).
As Suggs had not brought his hard hat, he remained in the
truck. (3:590). Dampier apparently disembarked to attend to
some business in the trailer.
According to Suggs, when Dampier returned to the truck,
Dampier’s remarks included two references to violence.
(3:584). The conversation is disjointed and poorly developed
in the record. The first reference, as described by Suggs, is
that Dampier said that Superintendent McLeod “started hear-
ing about the Union and he’d like to meet Mr. Sykes in the
parking lot to kick his butt.” (3:580). No further details are
given. Dampier denies such a reference, but recounts an (un-
dated) incident in which he told Suggs that McLeod was upset
over some union stickers having been placed on McLeod’s
personal vehicle. (5:1057). According to McLeod’s personal
log, this occurred on February 12, 1997, and on (Thursday)
February 13 McLeod told Sykes “to tell his people not to put
anything on my truck.” (RX 18 at 5).
Rather than the union stickers incident of February, the
event more likely in reference is that of “April 14 and 16,
1997,” described earlier. I there found no violation when
McLeod, emotionally upset at rumors reportedly promoted by
the Union that McLeod was secretly a member of the Union,
told Daryl Thompson that if Sykes came over right them
McLeod would “kick his ass.” However, as Dampier credibly
denies any such reference on April 18, and in view of the dis-
connected status of the quote as rendered by Suggs, I find that
Suggs (apparently, at some point, having heard about
McLeod’s statement of kicking Sykes’ ass) mistakenly incor-
porated that into his description of the truck conversation of
April 18, 1997. In short, I find that, on April 18, Supervisor
Dampier made no reference to a statement by McLeod about
kicking Sykes’ butt. I therefore will dismiss complaint para-
graph 9(d) respecting the reference to Superintendent McLeod.
Turning to the second of the attributed references—a state-
ment by Dampier that it would have been worth $1,000 for
him to have been able to have “decked” Daryl Thompson
(3:583)—I note that the incident is poorly developed in the
briefs. The source of this incident traces to a charge (no copy
in evidence) which Daryl Thompson admittedly (2:157) had
filed over his temporary (some 3 to 4 weeks, 2:149) transfer
from the Physics building to help at the Cedar Key project.
[Presumably that charge was either dismissed or withdrawn.]
The purpose of Thompson’s temporary assignment was to do
certain outside work. (51057–1058; 6:1130–1133). Thomp-
son even told Samples Jr. that he looked forward to the as-
signment because he could do some fishing in the afternoons.
(6:1132). There is no dispute that Thompson told others, in-
cluding Supervisor Dampier, that he liked working at Cedar
Key. (2:187, Thompson; 5:1062, Dampier).
But thereafter, Thompson filed his charge (or the Union
filed one on his behalf) on the theory that he never was needed
at Cedar Key and that he had been (temporarily) transferred so
as to remove his union activities. (2:157, 181). Thompson
concedes that none of the other members of the organizing
committee was transferred. (2:181).
The charge apparently had been filed not many days before
the April 18 election. On April 18, apparently as Supervisor
Dampier was returning to his truck (in which Stephen Suggs
was waiting), Thompson approached the job trailer at the
Physics Building jobsite in order to be released to go to the
election to serve as the Union’s observer. (2:157). Dampier
“immediately confronted me.” (2:157, Thompson). Suggs
heard a “ruckus” going on, and when Dampier returned to the
truck he told Suggs that he and Thompson had argued over
Thompson’s [earlier] having calling him a liar, and that Dam-
pier had dared him to call him a liar on that occasion. Dam-
pier told Suggs that if Thompson had called him a liar [on that
occasion] he would have kicked his butt, and that it would
have been worth $1000 to have been able to have decked
Thompson. (3:583, 590–591).
By his account of the incident, Thompson was mostly pas-
sive, attempting to explain to Dampier that, even though he
had liked the Cedar Key job, he felt he had been sent there to
hinder his organizing efforts. (2:157). Dampier became agi-
tated, spitting in Thompson’s face as he spoke and “frothing”
[Thompson has tendency to exaggerate] at the mouth. (2:157–
158, 186). Although Dampier never hit him, Thompson
thought he was about to do so. (2:186).
Thompson concedes that Dampier had taken offense at
Thompson’s filing an unfair labor practice charge over his
transfer, yet he previously had told Dampier he liked the as-
signment. Thompson acknowledges his understanding that
Dampier was not upset because Thompson had filed a charge.
What upset Dampier was that the charge contradicted what
Thompson previously had told Dampier. (2:187).
Acknowledging meeting Thompson on this election day,
Dampier contends that he confronted Thompson about saying
on the job that he did not like the Cedar Key job when earlier
he had told Dampier that he did. But the confrontation
“wasn’t real nasty.” “We met and I told him I didn’t appreci-
ate him telling people I was lying [presumably this means that
Thompson was denying to others that he had ever said he liked
the Cedar Key assignment], when I didn’t feel that I was lying.
And he then said, ‘What are you going to do, hit me?’ And I
said, ‘Well, you just tell me I’m lying and find out.’ And that
was the end of the confrontation.” Dampier denies making
any moves toward hitting Thompson. Dampier told Suggs that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1382
it “almost” would have been worth $1000 to have hit Thomp-
son.6 (5:1062–1064).
Thompson’s version is far more detailed and credible than
Dampier’s, and I find that such was what happened. When
Dampier returned to the truck, I find that he used the term
“almost” in qualifying his expressed urge to pay $1000 to have
decked Thompson. [Actually, the presence of “almost” adds
little to the meaning, for even without the qualifier, the state-
ment does not assert an intent to do something either then or
later.]
I do not credit an add-on version of Suggs, that Dampier,
later in the conversation, said he planned to hit Thompson the
next time he saw him. (3:591). Suggs demeanor was poor as
to this, and he admits leaving it out of two sworn pretrial
statements, supposedly remembering it a few weeks before his
testimony. (3:592–599, 607–609). As so often when employ-
ers come up tardy with reasons for a discharge, Suggs’ late
add-on is just as incredible. Crediting Dampier’s denial
(5:1063), I find that it did not happen.
(2) Discussion
As discussed in the fact section above, I found that, in his
testimonial account, Suggs mistakenly incorporated into his
description of the truck conversation of April 18, 1997, a ref-
erence to the April 14–16, 1997 incident in which Superinten-
dent McLeod, upset over rumors (perceived to have been pro-
moted by the Union) that he secretly was a member of the
Union, said that if Sykes came over right then McLeod would
“kick his ass.” Finding no such reference by Supervisor Dam-
pier in the truck conversation with Suggs on April 18, 1997, I
shall dismiss complaint paragraph 9(d) respecting the refer-
ence to McLeod. [As Suggs is not credited as to this, I need
not address the Government’s creative reading of the allega-
tion so as to encompass the supposed reference to McLeod.]
Turning now to the second item, and the remark which Su-
pervisor Dampier acknowledges (although it includes “al-
most”), I find no violation. First, the evidence fails to show
whether Suggs was aware of the unfair labor practice charge
background of the incident. All Suggs knew is that a “ruckus”
had occurred somewhere between the truck and the trailer, that
Dampier, returning to the truck, told him that he and Thomp-
son had argued over Thompson’s calling him a liar, and that
Dampier had dared Thompson to call him a liar on that occa-
sion. Had Thompson done so, Dampier told Suggs, Dampier
would have kicked Thompson’s butt, and it almost would have
been worth $1000 to have “decked” Thompson.
So far as Suggs knew, Dampier and Thompson had an ar-
gument over Thompson’s having earlier called Dampier a liar
(earlier occasion not specified or described to Suggs in the
truck), that Dampier “bowed up” (3:390) on this occasion and
dared Thompson to call him a liar on this occasion, and that it
almost would have been worth $1000 for Dampier to have
been able to have “decked Thompson.
Although the General Counsel grounds the alleged violation
on “the effect of coercing the employee who hears the threat
into dropping his Union activity lest he invoke the obvious
wrath of the supervisor” (brief at 21), there is no connection
here with Thompson’s union activity (or of his having filed a
charge—a matter not alleged). And this is so even though,

6 When citing Dampier’s version, whether at trial (5:1064) or on
brief (Br. at 21), the General Counsel persists in omitting the “almost.”
crediting Suggs, I find that Dampier earlier had told Suggs that
the person Samples Jr. was sending to help them, temporarily,
seemed to be the “main instigator” of the Union. (3:569–570,
606–607). I do not credit Dampier’s version that he and Sam-
ples Jr. had not discussed, before Thompson’s arrival at Cedar
Key, whether Thompson supported the Union. (5:1058).
There was no reference to that, or to the Union generally, in
the truck conversation. For all Suggs would have known, the
“liar” dispute was some personal matter between Supervisor
Dampier and electrician Daryl Thompson. And even if Suggs
somehow was aware of union-related background of the dis-
pute, there still would be no violation because Supervisor
Dampier had only expressed what his desires would have been
had Thompson again called him a liar. Thus, Dampier made
no union-related threat of violence against Thompson under
either alternative.
On these considerations, and the record, I shall dismiss
complaint paragraph 9(d).
e. April 21, 1997
(1) Facts
Complaint paragraph 9(e) alleges that, about April 21, 1997
at Mid-State’s Cedar Key jobsite, Supervisor Dampier “threat-
ened to blacklist employees and see to it that they never
worked for non-union contractors again in Gainesville, Flor-
ida, in retaliation for employees’ union sympathies.” Mid-
State denies. Stephen Suggs testified in support.
At the Cedar Key jobsite on Monday, April 21, 1997, fol-
lowing the April 18 election, Suggs testified, he told Supervi-
sor Dampier that he was thinking of joining the Union, “to get
his reaction.” [Recall that he actually had joined about a
month before the election, but he had kept the fact of his join-
ing secret. 3:586.] Dampier’s “reaction” was to say that Suggs
would never work for Mid-State again. “For that matter,”
Dampier continued, “you’ll never work for a nonunion con-
tractor again because they’ll blackball you.” (3:585–586). On
cross examination Suggs concedes that Dampier’s statement
about his being blackballed dealt with action that contractors
other than Mid-State would take, and that Dampier also spoke
about other things as to why he did not think unions were any
good. That Monday was Suggs’ last work day at Mid-State,
for he quit his employment there. (3:600, Suggs).
Supervisor Dampier’s account is different. He asserts that
Suggs told him he was thinking of joining the Union in order
to make more money. [As the Union had just lost the election,
Suggs’ statement implies that he would quit Mid-State and
take a Union job at higher pay.] After all Suggs had seen [in
the election ampaign, presumably], Dampier told Suggs, Dam-
pier did not think it was such a great option, but that was to-
tally Suggs’ choice. Dampier denies any reference to black-
balling.
Although that ended the remarks about joining the Union,
Dampier proceeded to caution Suggs that Dampier would not
recommend him for reemployment with Mid-State if he left
without notice. As Suggs was “up for vacation,” Dampier
suggested that Suggs work the next 2 weeks to complete the
job, followed by his 2 weeks of vacation, and that he then turn
in a quit notice. Then everything would be fine. The door
would be open for him, and his bridge would be “unburned.”
But the next day, Suggs called early to tell Dampier that he
would be late for work, and not to pick him up. Suggs never
returned to the job. Instead, he went later that day to the office
MID-STATE, INC. 1383
and picked up his check. “I’ve never seen him again.”
(5:1059–1062, Dampier).
(2) Discussion
Credibility resolutions are not always easy. Lying witnesses
do not drop dead before my bench, as Ananias and Sapphira
did at the feet of Peter. (Acts 5:1–11.) Indeed, resolution by
the judge (or jury in a jury trial) is simply a practical solution,
not a mark of truth absolute. I did not presume to caution
either Suggs or Dampier, “Listen, the footsteps of those who
have buried [Ananias] are at the door, and they will carry you
out.” Even had I done so, nothing would have happened.
The dispute here could be resolved differently by different
judges. But I give the edge to Supervisor Dampier on this
matter. First, Suggs’ asserted purpose of getting Dampier’s
“reaction” rang a bit hollow in the telling, as it does in the
reading. Second, Dampier’s account, told well, fits the facts a
bit neater than does Suggs’ version. Suggs’ account suggests
that Dampier, here at the end of the organizing campaign,
reacted the way a supervisor might react at the beginning of a
campaign before he had been trained in the Do’s and Don’ts of
a union campaign.
Moreover, it is undisputed that Suggs quit the next morn-
ing—apparently not long before the job ended. Dampier urged
Suggs to help him until the job was completed, give notice,
take his vacation, and all would be well with his record at
Mid-State. This advice Suggs did not take. Suggs, I find,
wanted to leave for more money then. He converted Dam-
pier’s advice into a story of blacklisting. Finally, even if I
were to credit Suggs, I would find no violation, for the allega-
tion is that Dampier would take action to see that Suggs was
blacklisted. Even under Suggs’ version, Dampier made no
such threat—his attributed implication was that word of
Suggs’ joining the Union would (naturally) circulate and con-
tractors (on their own) would refuse to hire him. Assuming
that it is unlawful for a supervisor to tell an employee that
employers will not hire him if he joins a union, such is not the
allegation here.
In any event, crediting Supervisor Dampier, I shall dismiss
complaint paragraph 9(e).
E. Refusal to Consider or to Hire 18 Applicants
1. Introduction
a. General
On various dates from April 30, 1996 through January 21,
1997, complaint paragraph 10(a) alleges, Mid-State “has re-
fused to consider for hire and/or to hire” 18 named job appli-
cants because (paragraph 12(a) alleges) of union considera-
tions. By its answer, Mid-State denies.
As set forth at paragraph 10(a), some of the employees ap-
plied on more than one date, and one, George Snowden, ap-
plied nearly a dozen times. Among the applicants were the
paid (1:13–14, 17–18; 4:757, 808) representatives of the Un-
ion, Organizer Kenneth Sykes and Business Manager Harold
Higginbotham. Beginning on the first date of April 30, Sykes
applied on a half a dozen dates, and Higginbotham on three
different occasions.
As argued in the General Counsel’s brief (Brief at 24–30),
the Government’s attack theory essentially is that the rejection
of applications from the 18, who openly wore union insignia
or accompanied others who did, plus all the (alleged and unal-
leged) union animus, coupled with record evidence that Mid-
State was hiring “during the relevant period,” establishes a
prima facie case.
The General Counsel also argues that Mid-State unlawfully
discriminated because, by not interviewing the union appli-
cants and accepting their applications, Mid-State “made it
impossible for the Union applicants to be hired regardless of
the availability of jobs.” (Brief at 28). To the unlikely extent
this is a backdoor attempt to allege, as unlawful, Mid-State’s
practice of not accepting applications until there is an opening,
I shall not consider it because it was neither alleged nor liti-
gated as a separate violation. However, I shall consider it as a
contention that Mid-State’s practice of not “storehousing”
applications is one component of Mid-State’s alleged effort to
keep its workforce free of members of the Union.
Turning now to the asserted animus, I note that little re-
mains of what is alleged in the complaint. The merit findings
are, to some extent, technical insofar as animus is concerned.
Thus, the no solicitation (admitted) and impression of surveil-
lance findings hardly equate with a threat to close the plant or
to discharge union supporters. And the one finding of a threat
to close is based—not on a direct threat by President Samples,
the owner—but on an expression of fear by Superintendent
McLeod (an hourly paid supervisor; 6:1124) that Vice Presi-
dent Samples (who owns not one share of stock; 6:1101),
would do so. Even the threat to sue, serious as it is, does not
relate to clearly protected activities (of which Samples told the
organizing committee they need have no concern; 2:138, 174–
175), but to what Samples considered false and defamatory
statements in the Union’s flyers. [Although an employer may
sue for such, it is a gamble, for a loss will subject the employer
to an unfair labor practice finding if a retaliatory motive is
found. Braun Electric Co., 324 NLRB 1 (1997). In short, the
violations found here fall short of the animus showing needed
by the General Counsel to do the heavy lifting respecting mo-
tivation.
That takes us to the critical inquiry—whether Mid-State, as
the Government contends, was hiring nonunion applicants
through the backdoor while closing the front door to anyone
decorated with union insignia. “Backdooring” is a familiar
concept to the Board, although the term itself usually is asso-
ciated with an exclusive hiring hall of a union referring its
friends rather than others who have lower numbers (higher
positions) on the out of work list. For example, see Operating
Engineers Local 450 (Houston Chapter, AGC), 267 NLRB
775, 779 fn. 6, 795 fn. 88 (1983). Rather than backdooring,
Mid-State counters, it simply was following its standard prac-
tices of not stockpiling applications (a waste of time because
the applicants quickly find jobs elsewhere) and of interviewing
and accepting applications only when there is an opening.
Before we turn to the sequence of attempted applications
and the dates of actual hirings of those other than the alleged
discriminatees (none of whom was hired), a brief detour is
necessary concerning rebuttal testimony about an asserted
1995 incident.
b. The asserted 1995 “drawer” incident
Without objection that the testimony was not proper rebuttal
(and should have been part of the Government’s case-in-chief
effort to show disparity, as part of the proof of discrimination),
Organizer Kenneth Sykes testified about a 1995 incident. On
that occasion in the summer of 1995, Sykes accompanied
Business Manager Higginbotham and member Ernie Cooper to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1384
Mid-State’s office. Higginbotham and Cooper were there to
check on applications which they, reportedly, had left a few
weeks earlier. Sykes was there to pick up an application for
himself. (Sykes does not know whether Higginbotham and
Cooper were told, on their earlier visit, that Mid-State was
then hiring.) Brenda Thompson (the office manager) was han-
dling the receptionist’s duties at the time. Cooper said that he
and Higginbotham had left applications earlier, knew that
Mid-State was giving out applications, and wanted to check on
their applications. Replying that Mid-State was not hiring and
not giving out applications, Thompson went to a back office.
Returning shortly, Thompson reported that Samples said he
had their applications in his “drawer.” On cross examination,
Sykes expanded Thompson’s report from Samples to add, “and
that he was holding on to them.” (6:1189–1191, 1195–1196).
In their briefs the parties do not treat this “rebuttal” testimony
of Sykes.
As the record shows, on a few occasions, a new receptionist
has given out applications before management advised that
Mid-State was hiring. In any event, contrasted with the as-
serted 1995 incident, all the other evidence, of which there is
an abundance, is that Mid-State’s standard practice, of many
years’ standing, was not to give out applications unless Mid-
State was in a hiring mode. Past experience had demonstrated
to Mid-State that applicants quickly find work elsewhere.
Thus, it wastes time, space, and effort to receive and file, or
“storehouse,” applications on the prospect that the applicants
will be available when a future need arises. (1:68–70; 6:1082,
1089, 1096, Samples; 5:896, 904, 916–917, 921, 930, 934,
Thompson; 6:1105–1106, 1181, 1186, Samples Jr.).
[There is some confusion regarding whether, in September
1996, Mid-State instructed the receptionist to send applicants
to Samples Jr. or to Samples for an interview once Mid-State
was in a hiring mode. Samples testified in the affirmative.
(1:72–73, 78). Vice President Brenda Thompson also says
yes, but then states that such has always been the practice.
(5:917–918). Samples Jr. asserts that, at least since he became
general superintendent in July 1994, the practice has been the
same as it is currently—if he needs someone, he tells the re-
ceptionist to let him know if an applicant arrives and then he
interviews the applicant. (6:1180, 1182). It appears that
whatever instruction was given in September 1996 merely
reinforces the existing practice.]
Of the witnesses in this proceeding who had been hired by
Mid-State, none testified to having been hired based on an
application that had been “on file.”
Turn now to the key. Near the end of Samples’ direct ex-
amination, during Mid-State’s case-in-defense, I asked him
certain clarifying (for me) questions confirming that, if Mid-
State is not hiring, it does not accept applications. Samples
confirmed that he has no “drawer” in which applications are
kept. (6:1089).
Through the General Counsel’s cross examination, no ques-
tion referred to a “drawer.” Called as the Government’s rebut-
tal witness, Sykes was asked about the 1995 incident, and, as
described above, he reports a purported statement by Samples
that he was keeping the applications of Higginbotham and E.
Cooper in his “drawer.” Of course, such evidence, if it ex-
isted, appropriately would have been offered during the Gov-
ernment’s case-in-chief as part of the General Counsel’s effort
to show disparity (holding applications in 1995, but not when
the Union mounts an organizing campaign), in order to help
carry the Government’s burden of establishing a prima facie
case of discrimination. [That is, a case sufficient to support a
decision of merit in the event the respondent, failing in a mo-
tion to dismiss the complaint at the close of the Government’s
case-in-chief, were to rest on its motion rather than proceeding
with its case-in-defense.]
In this light, it seems rather strange that the General Coun-
sel, during the Government’s case-in-chief, did not offer
Sykes’ testimony about the “drawer.” Indeed, when
Higginbotham was a witness for the General Counsel, he was
not asked about the 1995 incident. The General Counsel was
not shy about offering other pre-1996 “background,” as is
shown by the testimony of Michele DeBois, the 1994 recep-
tionist.
I do not believe witness Sykes concerning this asserted 1995
incident. His testimony on this matter seemed contrived, and
his demeanor was unfavorable. Rejecting Sykes’ account of
the entire 1995 “drawer” event, I find that it did not happen.
2. April 30–May 1, 1996
Shortly after the trial opened, the parties stipulated (1:20–
22) to the authenticity of a 4-page exhibit (JX 1) listing the
names of employees hired beginning April 30, 1996 [the date
of the first alleged refusal to consider or to hire] through April
14, 1997, a date just 4 days before the April 18 election. [Re-
call that the last alleged refusal to consider or to hire occurred
January 21, 1997.] Included in the other data on the exhibit
are the dates of hire, for those who were hired, plus the names
of the alleged discriminatees and the dates they applied.
The first 10-named discriminatees in complaint paragraph
10(a) applied over the 2-day period (six the first day and four
the second) of April 30 to May 1, 1996.7 (JX 1 at 1). As of
May 1, 1996, Mid-State was winding down a 2-year job at the
Veterinary Medical School, and was not far from a mid-
summer layoff when jobs at the Veterinary Medical School
and the Medical Office Building ended on July 1. (6:1118–
1122, 1138). The first person hired on or after April 30 was a
journeyman, Anthony Baccili Jr., hired more than 2 weeks
later — on May 17, 1996. (JX 1 at 1; 3:561, Baccili). Baccili
first worked at the Medical Office Building which was nearing
completion. (3:519, 531). For the (payroll) week ending
Wednesday, May 1, 1996, Mid-State had, on its payroll, 17
journeymen and 19 helpers/laborers. (RX 17 at 1). Mid-State
tries to maintain a 1 to 1 ratio of journeymen to helpers, Sam-
ples Jr. testified. (6:1137). [Samples testified similarly, al-
though his testimony (1:96) is garbled in the record.] Brenda
Thompson, a vice president and Mid-State’s office manager
(5:895), testified that she enters, into the company’s computer,
the employee’s job classification based on the information
shown on the payroll records. (5:914).
Samples Jr. testified that on April 30 and May 1, 1996, Mid-
State had no need to hire anyone. (6:1142). Superintendent
McLeod started the Physics building project (Physics) on Feb-
ruary 15, 1996, was still there as of his October 1997 testi-
mony, and testimonially reported a scheduled completion date
of November 20, 1997. (5:939–940, 984, 999). Physics got
off to a slow start. (6:1121, 1123, 1138). During the May-
June time frame, only 4 to 5 persons were working at Physics.

7 The 10 names are: (April 1) Ernest Cooper, Randall Cooper,
Kenneth Olsen, Jeff Richards, Joseph Suggs, and Ken Sykes; (May 1)
Jeff Dennison, George Fetzer, Sam Vaughn, and Charles Wheeler.
MID-STATE, INC. 1385
(6:1123). McLeod testified that had the 10 alleged discrimina-
tees been hired and placed at Physics, that there would have
been no work for them to have done. (5:990–991).
Union Organizer Kenneth Sykes was in the group of six
who attempted to apply for work on April 30. Most were
wearing union insignia with some wearing a red or blue mesh
logo cap (GCX 12) bearing the Union’s logo. (2:304, R. Coo-
per; 4:798, J. Suggs; 4:811, Sykes). Of the applicants, Sykes
principally spoke, although Joseph P. Suggs and Ernie Cooper
also spoke. As summarized earlier, Sykes told the reception-
ist, who he recalls as being Kimberly Walton [as noted earlier,
although Office Manager Thompson testified that Walton be-
gan work as a temporary about 2 months before her July 8 hire
as a regular employee, it is possible that Walton was present as
a temporary in late April], that they were looking for jobs.
Walton said that Mid-State was not hiring. When Sykes asked
if they could leave applications, Walton replied that Mid-State
was not accepting applications, telephone numbers, or names.
(4:811–812).
At that point Sykes said that they had heard from All Flor-
ida Electric that Mid-State had borrowed some employees.
Because of that fact, Sykes explained, the group thought that
Mid-State might be needing to hire some men. The reception-
ist (Walton) then left momentarily and returned with Samples
Jr. and Leon Burgess, an estimator. When Sykes repeated his
statement, Burgess (Randall L. Cooper specifically recalls that
it was Burgess who replied, 2:309) said they had not borrowed
anyone from All Florida, but that Perry Construction Company
had hired All Florida to help finish the job. Either Burgess or
Samples Jr., or both, said that Mid-State was not hiring.
(2:314–316; 4:800, 813, 838–839).
[As Samples Jr. testified, Perry, the general contractor on
the Veterinary Medical School job, had summarily notified
Mid-State that Perry was hiring and placing some electricians
on the job to get it finished. This was in early April. Mid-
State had no choice but to accept the arrangement, for Perry
controls some 50 percent of the business which Mid-State
receives. In any event, Mid-State did not borrow any of All
Florida’s employees. (6:1109). Subjectively, Samples Jr. is
correct in saying that Mid-State did not “borrow” any of All
Florida’s employees, especially if “borrowing” is defined in
terms of a voluntary action. However, the effect of the event
was the same as a borrowing, for, as Samples explained early
in the trial (1:63–65), Perry told Samples and Samples Jr. that
he would deduct the cost of the labor from Mid-State’s con-
tract by a change order. Still, that is a big difference in form
from an actual “borrowing.”]
As Randall Cooper credibly recounts, on cross-examination,
Samples Jr. added that Mid-State was finishing up a job for the
state, but Samples Jr. did not say which job. (2:314, 330).
According to Sykes, he asked whether Mid-State had any work
coming up in the future, and either Samples Jr. or Burgess, or
both, said no. (4:813). Neither Cooper nor Joseph Suggs in-
cludes this final exchange in his account, and Samples Jr. does
not address it. In light of the candid responses given by both
Burgess and Samples Jr., I find it unlikely that either of them
would have provided an answer of no future openings (as dis-
tinguished from no openings anticipated over the next few
days). That makes no sense for a company with no plans of
scaling back its operations. What happened, I find, is that
Sykes, who has applied elsewhere, transported (through a
memory mix-up) that exchange with some other employer into
this conversation. In short, the final exchange, as described by
Sykes, did not occur.
A series of factors—Mid-State’s lack of job openings in this
late April-early May 1996 time frame, plus the relatively small
size of its journeymen workforce (only 17 as of May 1) in
comparison to the number of alleged discriminatees, and the
fact that no journeyman (or any person) was hired for over 2
weeks after April 30 (Anthony Baccili Jr. on May 17, 1996)—
rompts Mid-State (Brief at 18) to describe the current allega-
tion as the “single most galling aspect of this litigation . . . .”
As the evidence fails to show any discrimination respecting
the dates of April 30-May 1, 1996 respecting the 10 who un-
successfully sought to apply for work at Mid-State, I shall
dismiss complaint 10(a) as to the 10 for those dates.
3. May 16, 1996
As alleged by complaint paragraph 10(a), the next visit to
Mid-State by alleged discriminatees was by Harold
Higginbotham and Nelson L. Mathis Jr. on May 16. Mathis,
president of IBEW Local 1205 (2:357), and Business Manager
Higginbotham so confirm. (2:358; 4:758, 773). Mathis was
wearing a Union T-shirt and Union ball cap, or logo cap
(2:358), and Higginbotham a white Union logo cap (4:759).
Of the two, Higginbotham did most of the talking.
Higginbotham asked the receptionist if they were taking appli-
cations. She said no. Higginbotham said that they worked out
of the Union’s hiring hall, were looking for jobs, and had
heard that Mid-State was hiring. The receptionist said that
Mid-State was not hiring and anticipated no hiring for another
3 to 4 weeks. To Higginbotham’s inquiry, she said they could
not leave applications or their phone numbers. (4:760, 767,
773).
Mathis recalls that Higginbotham asked if Mid-State was
hiring “journeyman wiremen.” When the receptionist said no,
Higginbotham asked if they were hiring anyone, and again she
said no. Mathis then asked if they could complete applica-
tions, and she said no. He asked if Mid-State was taking ap-
plications, and she said no. The answer also was no to his
question of whether she would take their names and addresses.
(2:358–360). Mathis’ account does not include any statement
by the receptionist of no anticipated hiring for the next 3 to 4
weeks.
The next day, May 17, 1996, Mid-State hired Anthony Bac-
cili Jr. as a journeyman. (JX 1 at 1). Samples Jr. testified that,
on May 17, he had attended a job meeting that morning at the
Medical Office Building jobsite. At the meeting he learned
there were some telephone conduits that had to be installed for
each office suite. When Samples Jr. returned to his office,
Baccili was there, and Samples Jr. hired him. (6:1142–1143).
Samples Jr. testified that, on that occasion, he was unaware
that either Higginbotham or Mathis had been to the office the
preceding day seeking employment, and before May 17 Sam-
ples Jr. had not instructed the receptionist to begin taking ap-
plications. (6:1193). Samples Jr.’s testimony suggests that,
somehow, the telephone conduits were unanticipated before
the May 17 job meeting. The topic was not covered on cross
examination.
Baccili confirms his hiring by Samples Jr. and that his initial
assignment was installing conduit for the telephone system.
(3:519, 532). Although such is not typically done toward the
end of a job, as here, the work “was more or less left out be-
cause they didn’t know really what they wanted to do yet.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1386
Even then it took a week before the general contractor knew
“exactly” how he want the work done. (3:532, Baccili). In
short, Baccili supports Samples Jr.’s testimony.
Finding that the need for a new journeyman (at least as to
the date or even week) had not been anticipated by Mid-State
as of May 16, and that, consistent with Mid-State’s established
practice of taking no applications until there is a need, or open-
ing, as was the case with Baccili’s hiring on May 17, I find no
discrimination as to Harold Higginbotham and Nelson Mathis,
and I shall dismiss complaint paragraph 10(a) as to them for
the date of May 16, 1996.
4. June 19, 1996
The only name listed in complaint paragraph 10(a) for June
19 is that of George Snowden. Before Snowden visited Mid-
State on June 19 (JX 1 at 1), wearing one (GCX 12) of the red
IBEW Local 1205 mesh logo caps (4:647–648), Mid-State had
hired Zot Szurgot on June 13, whom it classified as a jour-
neyman, and Steven James, whom it classified as a helper.
(JX 1 at 1; JX 3 at 1). Szurgot was laid off on July 1 (JX 1 at
1) when the City Hall job he was working on neared comple-
tion and not as many electricians were needed. (3:419, 436–
437, Szurgot). Samples Jr. testified that Szurgot had been
hired as both an accommodation to another employer, Carlos
Hope Electric, which was trying to find a place for him when
its work had slowed, and to help finish Mid-State’s work on
the City Hall job. (6:1122, 1140, 1143–1144, 1172, 1178–
1179).
When he visited Mid-State’s office on June 19, Snowden
testified (4:649–651), he told the receptionist, Kim Walton,
that he was looking for a job. Walton said that Mid-State was
not taking any applications or telephone numbers. However,
Walton said that Snowden could speak with Samples. In Sam-
ples’ office, Snowden said that he could not understand why
he had not been hired, for he had been visiting the office for 8
or 10 weeks, and he had heard that Mid-State had been hiring.
[That Snowden (4:641, 647) sent a two-paragraph letter, dated
June 19, 1996 (GCX 11), to Samples reciting essentially this
same complaint, and requesting a meeting, raises some ques-
tion whether the two met on June 19 or later. Samples con-
firms that they met on one occasion. (6:1087). I treat the mat-
ter as a meeting on or about June 19.] According to Snowden,
Samples said that he had not hired anyone else, and was laying
off people. Samples did not say that Snowden was ineligible
for employment with Mid-State. (4:651).
Samples testified that Snowden is not eligible for employ-
ment with Mid-State. Snowden is ineligible because Snowden’s
former employer, Jack H. Oliver, president and owner of Pro
Electric Company (1:59; 5:1037), in an early 1996 private shar-
ing of names and information about workers, advised Samples
that he earlier had fired Snowden for walking off a job and,
reportedly, going to a bar, and that Snowden was unreliable.
(1:58–59, Samples). Oliver corroborates. (5:1040, 1043–
1044). When he met with Snowden, on or about June 19 (as I
state earlier), Samples did not divulge what Oliver had told him
in confidence. (6:1087). Samples Jr. confirms that Snowden is
ineligible because President Samples has declared it that way.
(6:1146–1147).
Snowden confirms that he had been fired from Pro Electric,
ostensibly for leaving early but really, he assertedly was told
when picking up his check, it was because he was too old.
(4:640; 5:886–888). [Snowden, 65 (4:676), concedes that the
EEOC dismissed his charge of age discrimination which he
filed against Pro Electric. (5:5:888).]
The next three persons hired by Mid-State were David
Byrne on July 30, Roy Sullivan on August 1, and Gregory
Dunagan on September 7, 1996. (JX 1 at 1–2). Mid-State
classified Byrne and Sullivan as laborers at, respectively,
$6.55 and $6, and Dunagan as a helper at $7. Snowden has 41
years’ experience as an electrician. (4:638). Mid-State did not
hire its next journeyman until it hired James Powell on Sep-
tember 10. (JX 1 at 2: 3:443; 6:1144–1145).
Crediting Samples, Oliver, and Samples Jr. on this matter,
as I do, I find no merit respecting the alleged date of June 19,
1996. Indeed, because Samples had declared Snowden ineli-
gible, for a reason unrelated to any union considerations, I find
no merit to any of the other dates which are tied to the 8(a)(3)
allegation. Accordingly, I shall dismiss complaint paragraph
10(a) as to George Snowden for all 11 dates listed (June 19 to
December 4, 1996). As we see later, additional dates in De-
cember 1996 and January 1997, pertaining to Sykes and to
Snowden, are covered by complaint paragraphs 10(b) and (c).
5. August 5, 1996
Aside from listing the name of George Snowden for August
5, complaint paragraph 10(a) names only Jeff Richards for the
date of August 5. Richards did not testify. On August 5,
Snowden testified, a Jeff Richardson accompanied him to Mid-
State’s office. There were wearing Union logo caps.
Snowden told Kimberly Walton, the receptionist, that they
were looking for work. She said that Mid-State had no work
and was not taking applications or telephone numbers.
(4:655–656). On cross examination, Snowden confirmed
(5:891) the accuracy of a short, typed statement, signed by Jeff
Richards, and dated August 5, 1996, the text of which reads
(RX 14):

George Snowden and I (Jeff Richards) went to Mid-
State Electric to look for work. The secretary told us that
they were not hiring at this time and that we would have to
talk to Mr. Bill Samples.
Mr. Samples is out of town to attend a death in the
family and will be back tomorrow.
The secretary also told us that work is slow and that
they do not know when they will be hiring!
George asked if they had been doing any hiring lately
and was told, No.

The other secretary jumped in and told us that they
were not taking any phone numbers either.
Snowden also testified that the “secretary” said that Mid-
State was not hiring, that they had not been hiring the last
month. (5:893). Assuming that Walton, or the “secretary”
said there had been no hiring for the past month, such a state-
ment is accurate as to any journeymen. Only two laborers had
been hired recently (David Byrne and Roy Sullivan), as noted
earlier. And the next person hired was helper Gregory Duna-
gan on September 7. (JX 1 at 2). The record gives no infor-
mation about Richards or his training or experience, if any, as
an electrician or even as a helper or a laborer. In any event, a
preponderance of the evidence fails to show any discrimina-
tion against Jeff Richards. Accordingly, I shall dismiss com-
plaint paragraph 10(a) as to Jeff Richards for the date of Au-
gust 5, 1996.
MID-STATE, INC. 1387
6. August 9, 1996
The next date alleged is that of August 9, and it is for Ken-
neth Sykes, Curtis Davis, and Doug Sullivan. [George
Snowden also is listed, but I have dismissed complaint para-
graph 10(a) for all dates as to him.] Sykes testified that he was
one of several persons who went to Mid-State on August 9
seeking jobs. Just he and the person who rode with him (pos-
sibly Snowden) went is at the time. The receptionist told him
that Mid-State was not hiring and not taking applications or
telephone numbers. She also said that he would have to talk to
Samples Jr., but that he was on vacation. (4:814–816, 841).
Snowden essentially confirms. (4:657). Davis did not testify,
although the joint exhibit reflects that a “C. Davis” attempted
to apply at Mid-State on August 9. (JX 1 at 2). Doug Sullivan
testified that he was wearing a Union cap when he went with
Sykes and two or three others to Mid-State. Notwithstanding
the confusion as to who accompanied Sykes into the office,
Sullivan’s version of what was said essentially confirms
Sykes. (3:487–488, 492-495).
Mid-State had laid off four electricians on July 1—Jaimie
Veatch, Zot Szurgot, Ron Travis, and Steven James—when the
Veterinary Medical School and the Medical Office Building
projects closed out. (6:1121–1122, 1138). Thereafter, Physics
was the only multiperson job, with nearly all others being two-
person jobs (one journeyman and one helper). (6:1138–1141).
After Szurgot was hired, all journeymen hired, during the rele-
vant time, went to Physics. (6:1148–1149). As no discrimina-
tion has been shown respecting the date of August 9, I shall
dismiss complaint paragraph 10(a) as to Ken Sykes, Curtis
Davis, and Doug Sullivan respecting August 9, 1996.
7. August 23, 1996
The next date, August 23, is alleged respecting Kenneth
Sykes and Harold Higginbotham [plus George Snowden].
Business Manager Higginbotham testified that the trio went
to Mid-State, wearing Union hats and T-shirts, and that Sykes
spoke, telling the receptionist that they were there seeking
employment and asking if Mid-State was hiring. When the
receptionist said no, Sykes asked whether they could fill out
applications. She said they were not accepting applications.
The answer also was no respecting telephone numbers and on
Sykes’ leaving his business card. Sykes said thank you, and
they left. (4:767–769, 790). Identifying the receptionist as
Kimberly Walton, Sykes testified to the same effect (4:816–
818) as did Snowden (4:658–660).
As mentioned earlier, the next journeyman which Mid-State
hired was James Powell on September 10, 1996. (JX 1 at 2;
6:1144). Samples Jr. testified that, as of August 23, there was
no way he could have predicted that he would need anyone on
September 9. (6:1144). Finding no discrimination, from a
preponderance of the evidence, I shall dismiss complaint para-
graph 10(a) as to Ken Sykes and Harold Higginbotham for the
date of August 23, 1996.
8. September 6, 1996
a. Facts
Two names are listed in complaint paragraph 10(a) for Sep-
tember 6. They are Randall Cooper and Kenneth Sykes.
Randall Cooper (2:324–325, 327) and Kenneth Sykes
(4:818, 847) agree that, on September 6, 1996, Cooper went
with Sykes to Mid-State’s office where they spoke with Sam-
ples and Samples Jr. According to Sykes, he told Kimberly
Walton, the receptionist, that they were there looking for a job.
She told them to have a seat. Before she had time to go for the
Samples, Sykes could hear them talking as they were walking
toward the lobby. (4:818, 851). Cooper recalls no receptionist
present, and that he and Sykes waited in the lobby a few min-
utes until the Samples walked into the lobby. (2:325).
According to Sykes, he and Cooper heard the approaching
Samples talking about having hired the “cream of the crop,”
and they were discussing what the starting pay rate should be.
(4:819). Cooper does not describe any such activity. Accord-
ing to Sykes, when the Samples came into the lobby, Sykes
commented to them about their having hired some electricians.
Samples said no, that they had hired some apprentices. Sam-
ples Jr. said that S&S Electric had an Audette in the paper, that
they (S&S) may be hiring, and “you might give them a call.”
Sykes thanked them and he and Cooper left. On cross exami-
nation, Sykes concedes that in his pretrial affidavit he recorded
that Samples said they “were looking for apprentices.” Sykes
quickly adds that Samples also said that they had hired some
apprentices and that Samples Jr. had added that S&S Electric (a
nonunion contractor) was running an ad in the newspaper.
Sykes insists that, “Every time I applied, I said that I was look-
ing for a job.” Although, on this occasion, Sykes did not volun-
teer to take a job as an apprentice, “I told him I was there look-
ing for a job.” (4:820–821, 847–851). Respecting S&S Elec-
tric, Sykes asserts that he thought Samples Jr. said that merely
as a “dig.” In any event, Sykes did not check a newspaper and
never went to S&S even though, he concedes, it would be a
target for organizing. (4:832–833).
Cooper’s version is rather different. He testified that Sykes
asked whether they were accepting applications or hiring.
Samples said they were not hiring or accepting applications for
journeymen, but that they were looking for apprentices. Nei-
ther Sykes nor Cooper asked to be considered for apprentice
positions. (2:325–330). Asked when the last time was that he
had worked for apprentice wages, Cooper (who has been work-
ing in the trade about 25 years, 2:303) replied, “When I was an
apprentice.” (2:330).
Samples, who has known Sykes for many years (1:80), testi-
fied that Sykes never came by when Mid-State was hiring and
that he had never asked for a job. (1:55). Samples recalls
when Cooper and Sykes came by together. Samples told them
that he was not hiring journeymen, but was trying to hire a few
apprentices. Neither Sykes nor Cooper asked to apply for
such. (6:1085, 1093–1094).
Samples Jr. testified that on (Monday) September 9 Harry
Tindell, a supervisor with Doyle Electric (an open shop con-
tractor) called, asking if Mid-State had room for a couple of
persons (James Powell and David Kelly) whom Doyle Electric
was about to lay off for lack of work. As an area had just
opened on a job the previous week, Samples Jr. told them to
send them over for an interview. Samples Jr. hired both, with
Powell starting on (Tuesday) September 10 and Kelly on Sep-
tember 16, 1996). (6:1144–1145, 1173–1174, 1179). Mid-
State classified Powell as a journeyman and Kelly as a helper.
(JX 1 at 2). James Bryant was the next journeyman hired, and
his first day on the payroll was September 17. He apparently
went to the same job where James Powell was assigned.
(6:1145; JX 1 at 2). Powell confirms that he was interviewed
by both Samples and Samples Jr. on September 9 before he
was offered a job with Mid-State. He wore no Union insignia
and nothing was said about a union. Powell worked for Mid-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1388
State until February 1997. In fact, it was not until about May
1997 that he joined the Union. Powell’s first assignment at
Physics was to add conduit (“piping”) in the labs. In his opin-
ion, it was a logical time to assign an electrician to begin that
work. (3:443–449, 478, 480–481, 484).
b. Discussion
Samples Jr. was not asked whether, when Doyle Electric
called him on Monday, September 9, about James Powell, he
also considered Randall Cooper and Kenneth Sykes who had
just spoken with both Samples and Samples Jr. the previous
Friday, September 6. Recall that Samples Jr. testified that the
new area had opened at Physics the same week as the Septem-
ber 6 visit by Cooper and Sykes. Samples Jr. was not asked
why he was receptive to a call (from a nonunion contractor) on
Monday, September 9, but, just one business day earlier
(through Samples) had told Cooper and Sykes that Mid-State
was not hiring. (The credible evidence shows that Sykes
asked only whether Mid-State was hiring or taking applica-
tions. Even so, I find that to be sufficient to express a request
for an application and to have considered any such application
that is completed and submitted.)
As the record has no evidence as to the foregoing, the evi-
dence simply shows that, when Samples Jr. decided to begin
interviewing (that is, when Doyle Electric called on September
9), the only journeyman applying was James Powell. Unfortu-
nately for Cooper and Sykes, they did not appear between the
time of Doyle Electric’s call, and the appearance of Powell at
Mid-State to be interviewed. Had they done so, they would
have fit squarely into the time period which Samples Jr. had
just opened for hiring interviews.
As the questions posed to Samples Jr. did not test him con-
cerning whether, on September 9, he thought of Cooper and
Sykes, but rejected them from any consideration (and for what
reason), the evidence fails to show any discrimination by Mid-
State on September 9 against either Randall Cooper or Ken-
neth Sykes. I therefore shall dismiss complaint paragraph
10(a) as to Randall Cooper and Kenneth Sykes respecting the
date of September 9, 1996.
9. October 10, 1996
The next date alleged in complaint paragraph 10(a) is Octo-
ber 10, 1996—it is for the names of Kenneth Sykes and Harold
Higginbotham (and George Snowden).
Higginbotham (4:769–770) and Sykes testified that, the
morning of October 10, they and Snowden drove to Mid-State
in one of the Union’s vehicles. Snowden asserts that he went
there alone. (4:663–664). Higginbotham testified that Sykes
spoke to receptionist Kimberly (Walton) for the trio. (4:770–
771). Snowden states that he spoke to Walton. (4:664).
Sykes testified that he told Walton that they were looking for a
job. (4:821–822). Snowden told her he was looking for a job
as an electrician. (4:664). Walton said Mid-State was not
hiring and not taking applications or phone numbers. (4:664,
771, 821–822). According to Snowden, he asked Walton if
Mid-State had hired anyone in the last month. She said no.
(4:664). Each of the three was wearing at least one of the
mesh caps bearing the Union’s logo (4:664, 821), and
Higginbotham (4:770) asserts that the other two also were
wearing Union shirts.
As the hiring list reflects, Walton’s statement to Snowden—
who acknowledges that he was looking for work as an “elec-
trician” (that is, as a journeyman)—was almost correct in
terms of journeymen, for the last journeymen hired were
James Bryant on September 17 and James Powell on Septem-
ber 10. (JX 1 at 2). Between Powell’s September 10 hiring,
and the October 10 visit of Sykes, Higginbotham, and
Snowden, five helpers and two laborers were hired. (JX 1 at
2). As journeymen, Powell was hired at the hourly rate of $9
and Bryant at $9.50. The laborers and helpers ranged from
$5.50 (the two laborers) to $8 (helpers $6.25 to $8). (JX 1 at
2).
Actually, the record is a bit ambiguous concerning wage
rates and classifications. Joint Exhibit 1 does not expressly list
a wage-rate range for each classification. Indeed, while JX 1
implies that journeymen rates, during the relevant time of
April 1996 to April 1997 started at $9 an hour, two of the 22
helpers hired during that time were hired at rates at or above
the $9 level—Larry Polk II at $9 and Jose Ayala at $9.50. (JX
1 at 3). And Zot Szurgot, classified as a journeyman, was
hired June 13, 1996 at $8.50. (JX 1 at 1). But these appear to
be aberrations in an otherwise consistent pattern of hiring
within dollar ranges for the stated classifications. Addition-
ally, however, Samples testified that, during this time, helpers
started at $7 to $9.50, with the wage scale for a journeyman
being $11 to $12.50 per hour. (1:77). That leaves the num-
bers between $9.50 and $11 rather unclear.
Although Mid-State’s classification of journeyman gener-
ally is for those licensed by some governmental authority, such
as the City of Gainesville or Washington County [west Flor-
ida], Mid-State treats as journeymen those persons who have
many years of experience but no license, Samples testified.
(1:76). Helpers are those with some electrical experience, and
laborers are persons with no electrical experience. (1:76). In
short, while the General Counsel argues (Brief at 30) that the
names on the hiring list should be considered without distinc-
tion between the journeyman and helper classifications, there
is little basis for that. Other than the examples of Polk II,
Ayala, and Szurgot, the other names and rates appear consis-
tent with Mid-State’s classification system.
Moreover, Samples (1:77–78) and Samples Jr. (6:1137) tes-
tified that Mid-State does not hire a journeyman and place him
in a helper position because it would be demeaning, the person
would not be happy, and he soon would leave for better pay.
Accordingly, Mid-State implies that it did not consider jour-
neymen Sykes and Higginbotham for helper positions for
which Joseph Carbonell was hired (at $7.50) on October 14
and Douglas Howard was hired on October 15 (JX 1 at 2) at
$6.50 (JX 3 at 9; 2:238).
The next journeyman hired was James G. Campbell, on Oc-
tober 24. He was followed by Albert Palmieri on October 25.
(JX 1 at 3). Samples Jr. testified that work opened up at that
time for the hiring of Campbell and Palmieri. (6:1146). Sam-
ples Jr. testified similarly respecting the hiring of journeymen
David Wood on November 1, John Ulmer Jr. on November 6,
William Sullivan on November 19, and Larry Polk on Novem-
ber 26. (6:1149–1151; JX 1 at 3). There is no evidence that
Mid-State knew, when Sykes and Higginbotham applied [I
exclude the ineligible Snowden], on October 10 that it would
need to hire six journeymen from 2 to 6 weeks later. Indeed,
Sykes concedes that there is a “constant” fluctuation in the
hiring needs of an employer in the construction industry.
(4:851–852). As Higginbotham, the Union’s chief officer,
MID-STATE, INC. 1389
colorfully puts it, that constant fluctuation is the “beast” of the
construction industry. (4:786).
William R. Sullivan actually was a rehire. (3:377, 379;
5:989; 6:1077). Sullivan testified that when he left Mid-State
in November 1993 he was told he would be welcome to return.
(3:411). When Sullivan, then working for Doyle Electric, was
on a business visit to the Mid-State job trailer at Physics in
September 1996, Samples Jr. told him to come by when his
work was done at Doyle and Mid-State would put him to work
if work was available. (3:380–382). Sullivan acknowledges
that it is traditional for open shop contractors to rehire em-
ployees who had a good record with the rehiring company.
(3:411–412). Sullivan was not wearing any union insignia in
September, or in November when he was rehired by Mid-
State, and he did not join the Union until March 1997.
(3:410). Counting his electrical experience in the U.S. Navy,
by November 1996 Sullivan had some 9 years’ electrical ex-
perience, but no journeyman’s license. (3:377, 387–388, 405).
At Doyle Electric Sullivan had worked up to a position as a
working foreman. (3:406). Thus, Sullivan’s rehiring by Mid-
State at the journeyman rate of $10.50 (JX 1 at 3) does not
seem unusual or suspicious.
Finding that the record falls far short of showing, by a pre-
ponderance of the evidence, that Mid-State unlawfully failed
to consider journeymen Kenneth Sykes and Harold
Higginbotham for the journeymen openings filled by James
Campbell and Albert Palmieri on October 24 and 25, or for the
journeyman jobs that opened, and were filled, later in October
and November, I shall dismiss complaint paragraph 10(a) as to
them for the date of October 10, 1996.
10. December 4, 1996
The next date alleged in complaint paragraph 10(a) is that of
December 4, 1996, with two names listed—Kenneth Sykes
and George Snowden. Although I have dismissed Snowden as
to all dates for complaint paragraph 10(a), I consider his testi-
mony to the extent it is pertinent or credible in understanding
events.
On this occasion, Sykes testified, he told the receptionist,
Kimberly Walton, that they were there looking for “a job.”
(4:823). Snowden asserts that Sykes told Walton they were
“looking for work as electricians.” Walton replied, “We’re not
hiring, we do not take applications, and we do not take phone
numbers.” (4:666). Although Snowden recalls that as the day
Walton refused to accept Sykes’ business card (4:666), both
Higginbotham (4:769) and Sykes (4:817–818), as earlier men-
tioned, designate the visit of August 23 as the when the busi-
ness-card incident occurred. Sykes asserts that Walton said
that they needed to talk to Samples Jr. who was on a job, that
he would be back in an hour, and they could call then. An
hour later Sykes called, but Walton said Samples Jr. had gone
home for the day. (4:824).
The next journeyman hired was Donald Clipp, on December
31 at $11 (JX 1 at 3), for work in the auditorium and lecture
hall area (of Physics) that had just opened. Samples Jr. testi-
fied that he did not know on December 4 that he would need to
hire someone at the end of the month. (6:1151). Superinten-
dent McLeod testified that he received just one day’s notice
that the area would open. (5:989–990). In fact, McLeod nor-
mally received only 1 to 2 days’ notice from the project coor-
dinator that an area would open. (5:983–984, 988, 1001–
1002).
Finding no merit to this allegation, I shall dismiss complaint
paragraph 10(a) as to Kenneth Sykes for December 4, 1996.
11. December 6, 1996
The next date, December 6, 1996, appears in complaint
paragraph 10(b) as to Kenneth Sykes and in complaint para-
graph 10(c) respecting George Snowden. As the refusal to
hire based on this event not only is alleged as a violation of
Section 8(a)(3) of the Act, but also 8(a)(4), I summarize this
matter under the topic for discrimination based on NLRB
charges filed.
12. January 8, 1997
Complaint paragraph 10(a) lists one name for this date, that
of Shane Veatch. Veatch previously had worked for Mid-State
as an “electrician,” for about $8.50 per hour, for about 3
months, departing about May 1996. (2:345).
On this date of January 8, Veatch accompanied George
Snowden to Mid-State, with both openly wearing union insig-
nia and union apparel with the Union’s logo. (2:334–335,
Veatch; 4:669–670, Snowden). Veatch testified that he asked
for a job application and was told that they needed to speak to
Samples Jr. about jobs, that he had just left, that Mid-State was
not hiring and was not taking any applications. (2:336–337,
348–349). Snowden adds that the receptionist, Kimberly
(Walton), also said that Mid-State does not take phone num-
bers. (4:670). [I address January 8 as to Snowden when I
cover the alleged violation of Section 8(a)(4).] From my own
observation, Veatch describes Office Manager Brenda Thomp-
son rather than Walton. (2:337). As of the trial, Walton was
just 21 with brown hair. (4:653; 5:931).
The first person hired on or after January 8 was Darryl
Thompson on January 20, at $9 (JX 1 at 4) apparently as a
journeyman, although JX 1 is blank as to his classification.
(2:135, 195).
Conveniently, the General Counsel fails to brief as to Ve-
atch. I say “conveniently” because, by not addressing the
allegation, the Government does not have to present an argu-
ment. Actually, the General Counsel should have moved to
withdraw the allegation as to Veatch when the General Coun-
sel rested, certainly so by the close of the trial, and at the very
latest in the Government’s brief. At no point has he done so.
Veatch, you see, left in May 1996 because he was fired by
Samples Jr. Veatch so admits (2:346, 350), and Samples Jr.
confirms (6:1152). Samples Jr. testified that he had fired Ve-
atch because Veatch, who had been working at the Medical
Office Building project but recently had been sent to work at
Physics, had simply reassigned himself back to the medical
office job. Samples Jr. asserts that Veatch is not eligible for
rehire. (6:1151–1152).
The reasons the General Counsel should have moved to
withdraw this allegation are threefold. First, Veatch admits he
reassigned himself in May 1996, and that Samples Jr. fired
him for this conduct. (2:350–351, 355–356). Second, Veatch
concedes (2:351) that he had not so much as thought about the
Union as of the time, so he had not shown any open support of
the Union. Three, as earlier as the first day of trial, FRE
611(c) witness Samples advised (1:60) that Veatch was ineli-
gible for rehire at Mid-State. While most would sympathize
with Veatch for his reason of desiring a reassignment (to be
nearby so he could visit his wife who, at the time, was making
frequent trips to the hospital next door for her personal care),
the proper course would have been to have sought a reassign-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1390
ment for that family reason, not to unilaterally reassign him-
self.
Finding no evidence whatsoever in support of the Govern-
ment’s allegation, I shall dismiss complaint paragraph 10(a)
respecting Shane Veatch for January 8, 1972.
13. January 21, 1997
The final date and names alleged in complaint paragraph
10(a) are for Steve Aldrich and J. H. Weeks for January 21,
1997. “This was,” the General Counsel observes (Brief at 29),
“the same day that Richard Messer was hired” as a helper at $8
per hour. (JX 1 at 4). The following day, January 22, Gary
Bloodworth was hired as a helper at $8.25, and on January 28
Joseph Burlingame was hired as a helper at $7.50 per hour.
(JX 1 at 4). Finally in January, Mark Poucher was rehired a
journeyman at $10 on January 29. (6:1077; JX 1 at 4).
Julian Henry Weeks, who appears to be about 62, holds a
journeymen electrician license from the City of Gainesville
and also one from Alachua County (Florida). He has worked
for 33 years in the electrical trade, and has been a member of
the Union for 32 years. (2:198–199).
On January 21 Weeks went to Mid-State along with Ken-
neth Sykes and Steve Aldrich in Sykes’ vehicle. All three
were wearing Union-logo caps. As they drove into the parking
lot, Weeks observed Samples by his vehicle some 20 to 40 feet
away talking to someone. Samples looked at the trio, then
Samples and the other man “walked around,” got in their vehi-
cle, and left. Although Weeks knows Samples, he is uncertain
whether Samples would recognize him. (2:200–202, 209–
210). Weeks, Sykes, and Aldrich then went inside and asked a
young woman if Mid-State was taking applications. She said
Mid-State was not hiring and not taking applications. Weeks
has not returned to Mid-State. (2:202, 207). Although Weeks
claims (2:204) he would have accepted a helper’s position in
order to work as a salt (open) because that would benefit all
members of the Union he concedes (2:205–206) that the last
time he worked in the electrical field as something other than a
journeyman was when he worked as an apprentice some 32 to
33 years earlier. [The transcript, at 2:206:1–2 is garbled, re-
flecting 2 or 3 years earlier when he worked as an apprentice.]
As his apprenticeship no doubt lasted about 4 years, the cor-
rect time reference would be closer to 28 or 29 years since he
had worked as, in effect, a helper.
With 33 years of experience and being a licensed journey-
man, it is extremely unlikely that Weeks would be content, for
whatever purpose, of working very long as a helper (even as-
suming he would be able to do the ditch digging and other
strenuous work helpers do). Appearing to be about 62, and
with his white hair and distinguished appearance, Weeks was
not at all persuasive in his testimony about his willingness to
work as a helper—beyond a possible 1 or 2 day stint just to be
hired as a helper. Thus, I do not credit his testimony to the
extent he asserts a good faith intent to apply to work as a
helper for anything beyond 1 to 2 days. Also, recall the testi-
mony of Samples (1:77–78) and Samples Jr. (6:1137) that
Mid-State does not hire a journeyman [especially a licensed
journeyman with 33 years’ experience] for a helper’s position.
As he drove into the parking lot that day with Aldrich and
Weeks, Sykes testified, Samples and Samples Jr. were stand-
ing by a white vehicle. The two Samples looked right at the
Sykes trio, and then the two Samples hurriedly got into their
vehicle and drove off before Sykes could park. This action
surprised Sykes, for he knows both Samples, and he and Sam-
ples Jr. had worked together as journeymen back in the 1970s.
(4:825–827, 837–838). Sykes concedes that in the four or five
conversations he had with Samples or Samples Jr., or both
together, the Samples were always at least cordial. (4:833–
836).
Samples does not recall ever seeing Aldrich or Weeks on
any visit by them to Mid-State (1:60), nor does he recall any
parking lot incident and hurrying to leave to avoid having to
meet with Kenneth Sykes. (6:1086). Samples Jr. (:1156) de-
nies that any such incident occurred where he ran to his vehi-
cle to avoid seeing (meeting with) Sykes.
Respecting Mark Poucher, the journeyman rehired on Janu-
ary 29, Samples Jr. credibly testified that Poucher was an ex-
cellent employee who was given preferential hiring because
Samples Jr. knew him to be a reliable worker. (6:1153). Re-
call that former employees, with good records, are given such
preferred hiring status under Mid-State’s unwritten policy.
(1:94, 97, Samples; 6:1136–1137, 1185, Samples Jr.). [Sam-
ples’ response at 1:94:19–20 is garbled, and should read,
“Well, let’s say that they’re good people, we give them prefer-
ence.” My notes so reflect, and the question and answer which
follow that one confirm this. Transcript volume 1 has several
such errors. Most are understandable from the context.]
The parties provide almost no briefing on this specific alle-
gation. The General Counsel (Brief at 29) refers to helpers
Messer and Bloodworth who were hired that day (January 21)
and the next, and Mid-State (who ignores the helpers in all
these allegations) cites (Brief at 22) the fact that Poucher was a
rehire.
Crediting the composite version of Sykes and Weeks, I find
that the parking incident occurred, but it was much more sub-
dued (as Weeks describes, 2:201–202) than the near-running
attributed by Sykes to the Samples. Even so, I find that Sam-
ples and Samples Jr. recognized Sykes, but not Weeks and
Aldrich. That means nothing, however, because the Samples,
who obviously were about to leave anyhow, were under no
obligation to remain and meet with Sykes. Indeed, by Sykes’
own description, in the office he did not leave a request for an
appointment to meet with either of the Samples respecting
being hired. In any event, under Mid-State’s policy, Sykes, as
a journeyman, was not eligible for hire as a helper, and there is
no evidence that Mid-State, as of January 21, was aware it
would need to hire a journeyman on January 29, the date it
hired Mark Poucher as a journeyman.
There being insufficient evidence of any unlawful motive on
Mid-State’s part respecting this allegation, I shall dismiss
complaint 10(a) as to Steve Aldrich and J. H. Weeks for Janu-
ary 21, 1997. (I postpone my conclusion as to Sykes until I
reach complaint paragraph 10(b), the allegation about dis-
crimination because of NLRB charges.)
Having considered and dismissed each component of com-
plaint paragraph 10(a), I now dismiss complaint paragraph
10(a) in its entirety.
F. Discrimination Because of NLRB Charges Filed
1. Introduction
Complaint paragraph 10(b) alleges that Mid-State, since
about December 6, 1996 and January 21, 1997, “has refused to
consider for hire an/or to hire Ken Sykes.” Mid-State denies.
Since about December 6, 1996 and January 8, 1997,” com-
plaint paragraph 10(c) alleges, Mid-State “has refused to con-
MID-STATE, INC. 1391
sider for hire and/or to hire George Snowden.” Mid-State
denies.
Additional paragraphs allege that Mid-State, by such con-
duct, violated both Section 8(a)(3) and Section 8(a)(4) of the
Act. Mid-State denies. As mentioned earlier, I postponed
covering some of this until now.
2. December 6, 1996
a. Facts
On December 6, Sykes testified, he and George Snowden
drove to Mid-State in Sykes’ truck. Sykes told the reception-
ist, Kimberly Walton, that he and Snowden were looking for
jobs and would like to talk to one of the Samples. After
Walton left and returned, she escorted Sykes and Snowden to
the office of Samples. As they were about to enter, Samples
Jr., who had been in the office with Samples, left. The three
who then remained were Samples, Sykes, and Snowden.
(4:824–825, 833–834). Snowden’s account is consistent.
(4:667–668).
Samples asked how he could help them, and Sykes said they
were looking for jobs. To this Samples replied that he could
not hire them, or anyone, because “we had charges filed
against him.” Sykes asked if Samples would like to meet with
Harold Higginbotham to see if they could resolve their differ-
ences. Samples said he was not interested in speaking with
anyone, and that he wanted to let the NLRB run its course. He
said the NLRB was to have made a decision on the charges
some 3 days earlier, but some amended charges had been filed,
that he did not know how to respond to the amended charges,
and that he had written the NLRB’s Regional Office for clari-
fication.8 [Samples apparently was representing Mid-State
himself at that time. Attorney Sizemore’s name does not show
up in the formal papers until April 1997. GCX 1(ff).] Sykes
and Snowden thanked Samples and left. The conversation
lasted some 5 to 10 minutes, and Samples had been cordial and
courteous. Samples did not mention that he was attempting to
settle the case with the NLRB. (4:825, 834; 6:1191–1192).
Snowden generally supports Sykes, but his account has no
“because we had filed charges.” Instead, he asserts that Sam-
ples said he would not do any hiring until the charges against
him were resolved. (4:668–669; 5:889–890).
Acknowledging the conversation (1:81, 95–96; 6:1080–
1081, 1090–1091), Samples’ version is different. He asserts
that he told Sykes, who asked if Mid-State was hiring (1:81)
and who, of the two visitors, did the talking (1:96), that Mid-
State was not hiring because charges were pending. He said
he had made a written proposal to the NLRB to resolve the
charges by offering to hire three “of their people” [three of the
alleged discriminatees], and that there had been no response.
At some point Samples received an oral rejection by attorney
Maiman. (6:1080–1081).
On cross examination Samples identified a September 11,
1996 letter (GCX 20, not offered), addressed from Samples to
the Regional Director at NLRB Region 12, in the final para-
graph of which Samples expresses his willingness to hire three
of those named in the charges in order to settle the case. Sam-
ples has never received a written response, although he re-
ceived an oral rejection from attorney Maiman sometime lat-

8 The Union’s second amended charge in this case was filed and
served on 11–27–96. No copy of any letter seeking clarification of the
amended charge was offered in evidence.
ter—possibly before December 1996, but Samples is “not
absolutely sure that it did.” (6:1091–1093). On redirect ex-
amination Samples asserts that, in rejecting Samples’ written
settlement offer, attorney Maiman said he had presented it to
the Union and they had rejected the offer. A month or so later
Maiman called again to say that he had again asked the Union,
and this time the Union said they would “furnish two men” if
Mid-State paid $1000. When Samples asked what the thou-
sand dollars was for, Maiman said he did not know. Samples
said he needed to know. Attorney Maiman has never an-
swered that pending question. (6:1094–1095).
On rebuttal, Sykes asserts that Samples never mentioned
settlement of the charges, and reports that he was the Union
representative who had the main contact with the NLRB con-
cerning these charges. (6:1192). [Perhaps so, but I note that
nearly all the formal papers filed by the Union are signed by
Higginbotham. Not until 1997 does Sykes sign any of the
formal papers in this case.] On cross examination, Sykes as-
serts that the first time he ever saw the letter (GCX 20) from
Samples to NLRB Region 12, respecting settlement, was that
day at trial, and he recalls no conversation with the NLRB
regarding the letter. In any event, attorney Maiman never
communicated such an offer to him. Respecting any later
offer by the Union that a certain number of employees be hired
plus the payment of $1000, “To my knowledge, that never
took place.” As to Sykes personally, “I did not make that
statement.” (6:1196–1197). Sykes, on redirect examination,
adds that Business Manager Higginbotham sometimes takes
calls from the NLRB. (6:1198). When Higginbotham testified
and was asked, on cross examination (not covered on direct
examination) if he remembered Sykes and Snowden going to
Mid-State and talking with Samples about settling the charges,
he answered that he does not recall any such event. (4:789).
Higginbotham was not called as a rebuttal witness by the Gov-
ernment to address the question of whether he had communi-
cated with anyone at NLRB Region 12 concerning possible
settlement of the charges.
Following the meeting of December 6, Mid-State hired 18
employees through April 14, 1997. (JX 1 at 3–4). The classi-
fications are not shown on JX 1 for all persons. Roughly, the
18 include some 9 helpers, 1 laborer, about 7 journeymen, and
1 master. The next four persons hired were helpers (counting
Jonathan Clemens and William Lowrey as helpers; classifica-
tions and pay rates not shown), with the first one (John Mantlo
Jr.) hired on December 16. The first journeyman hired after
December 6 was Donald Clipp, hired December 31. Recall
that one of the 18 hired was Darryl Thompson, on January 20,
1997, and that when Samples Jr. hired him, Thompson was
wearing one of the Union’s logo hats. (6:1107).
Samples Jr. testified that, as of December 6, 1996, he could
not have predicted with any assurance, that Mid-State would
have needed a journeyman on December 31. Journeyman
Clipp was hired then because the auditorium and lecture halls
area, which had been scheduled to start in August 1996, finally
opened for the electrical work. (6:1151).
b. Discussion
Observing that Snowden’s report of the initial portion of the
December 6 conversation is quite close to Samples’ version,
and crediting Samples in that respect, I find that Samples did
not say, as claimed by Sykes, that he was not hiring because
anyone had filed charges against Mid-State. Instead, I find,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1392
Samples said (when Sykes said they were looking for jobs)
that Mid-State was not hiring because charges were pending. I
need not determine whether such a statement would violate
Section 8(a)(1) of the Act, if alleged, for no 8(a)(1) allegation
was made or litigated. The conversation bears on the pleaded
count of discrimination under Section 8(a)(4) of the Act.
Respecting the allegations of discrimination because of un-
ion activities, I find no merit. First, Mid-State in fact was not
hiring at the time, and did not need a journeyman until De-
cember 31. Second, recall that Mid-State does not hire jour-
neymen, such as Sykes and Snowden, for helper positions.
Aside from a couple of borderline instances of overlapping
pay rates, there is no evidence that Mid-State has ever hired a
journeyman with the experience of Snowden (41 years, 4:638)
or Sykes (24 years, 4:805) for a helper position. [Actually,
neither Sykes nor Snowden ever indicated that his request for
work specifically included a helper’s job.] Finally, Snowden
was ineligible and would not have been hired in any event. I
therefore shall dismiss complaint paragraphs 10(b) and 10(c)
respecting the allegations as to the date of December 6, 1996.
Turning to the 8(a)(4) allegation respecting the same para-
graphs, I likewise find no merit. This is so even though, after
crediting Samples’ reference to an attempt to settle the matter
with the NLRB but had received no response [no “written”
response; he had, I find, received attorney Maiman’s oral re-
jection], I also credit Sykes’ version (confirmed by Snowden)
that he offered to arrange a meeting with Higginbotham to
resolve the charges. No, Samples said, he was not interested
in talking with anyone. Just let the NLRB procedure run its
course. After Samples’ reference to the amended charges,
Sykes and Snowden left.
Nothing in this second statement by Samples indicates that
he would not consider, or not hire, either Sykes or Snowden
because either had filed a charge, or been associated with any
of the charges. What about Samples’ first statement, not hir-
ing because charges were pending? It ties to the reference
about settlement efforts, and therefore seems focused on set-
tlement, but then takes a somewhat different turn by ruling out
talks with Higginbotham, or anyone else, and concludes with a
reference to letting the NLRB matter “run its course.”
Overall, Samples statement is rather ambiguous. It seems
clear, however, that neither Sykes nor Snowden was not con-
sidered for, or not hired for, a job as an electrician (journey-
man) because of the charges. The same hiring factors now
come into play as are discussed in relation to the 8(a)(3) alle-
gation — not then hiring anyone and no journeyman needed
until December 31, no journeyman is hired for a helper posi-
tion, and Snowden is ineligible for hire by Mid-State. Accord-
ingly, I shall dismiss complaint paragraphs 10(b) and 10(c), as
to December 6, 1996, respecting the alleged violation of Sec-
tion 8(a)(4) of the Act.
3. January 8, 1997—George Snowden
The discussion of the preceding topic indicates my finding
here. George Snowden was ineligible for hire at Mid-State.
As this status is unrelated to Snowden’s union activities, I
shall dismiss the 8(a)(3) aspect of complaint paragraph 10(c)
as to George Snowden. As nothing indicates that Mid-State
declined to consider Snowden, or to hire him, because he is
named in the charges filed, I likewise shall dismiss complaint
paragraph 10(c) as to the 8(a)(4) allegation respecting
Snowden. Having dismissed the component parts of complaint
paragraph 10(c), I now shall dismiss complaint paragraph
10(c) in its entirety.
4. January 21, 1997—Kenneth Sykes
Earlier I summarized the facts respecting this date. There
being no merit to either the 8(a)(3) or 8(a)(4) allegations, I
dismiss both respecting the date of January 21, 1997 in com-
plaint paragraph 10(b). As I have dismissed all components of
complaint paragraph 10(b), I now dismiss that paragraph in its
entirety.
G. Striker Misconduct—Refusal to Reinstate Bruce Audette
1. Introduction
Complaint paragraph 13(a) alleges that a strike began about
August 12, 1996 at Physics. Paragraph 13(b) alleges that the
strike was caused by the unfair labor practices described in
complaint paragraphs 6 [oral promulgation of a no solicitation
rule for break time] and 7(a) [threat about August 12 by Super-
intendent McLeod that Mid-State would close its business if
employees were represented by the Union], to which allega-
tions I have found merit. Complaint paragraph 13(c) alleges
that, about February 24, 1997, Bruce Audette [one of two
strikers], made an unconditional offer to return to his former
job. Since February 24, paragraph 13(d) alleges, and Mid-
State admits, Mid-State has failed and refused to reinstate
Audette. Finally, paragraph 13(e) alleges that the failure to
reinstate is based on Audette’s union activities. [Apparently
by oversight, paragraphs 13(d) and (e) are not picked up by
conclusory paragraph 15 (that such conduct violates Section
8(a)(3) of the Act). As the matter was litigated without objec-
tion to a violation incompletely alleged, I find that it was tried
by implied consent under FRCP 15(b).]
The primary issue litigated, and argued, is whether Audette
engaged in strike misconduct so serious as to forfeit his right,
as an unfair labor practice striker, to reinstatement. I shall
pass over the nature of the strike quickly, noting that on Au-
gust 12, 1996 Anthony Baccili and Audette told Superinten-
dent McLeod that they were going on an unfair labor practice
strike to protest the announced restrictions on soliciting during
breaks in the construction, or job, trailer. (3:529, 550–551;
4:698–699). Superintendent McLeod confirms their testi-
mony. (5:971–972, 1013–1015). [Note that the sole stated
ground, that has been found to be an unfair labor practice, was
the no solicitation rule, and does not include McLeod’s com-
pany-closing threat, which came after the announcement of a
strike. Additionally, there is no evidence that Baccili and, or,
Audette later counted that threat by McLeod as reinforcing
their decision to strike or that it served as an additional reason
either of them decided to remain on strike.]
By his letter (GCX 14) of September 5, 1996, Audette in-
formed Mid-State that he was still engaged in the unfair labor
practice strike against Mid-State. (4:705–707). Eventually, by
his memo (GCX 15) of February 24, 1997 faxed to Mid-State,
Audette “unconditionally offer[ed] to return to work immedi-
ately.” (4:707–708).
On that February 24, Audette testified, he went to Mid-State
where he met Samples Jr. in the parking lot. According to
Audette, he asked if Samples Jr. had received the fax. Sam-
ples Jr. said yes. Audette said he was offering to return to
work from his strike. Samples Jr. replied that he had no work
for Audette because “I’ve already replaced you.” Audette
claims Samples Jr. said that if he had to let someone go to
MID-STATE, INC. 1393
make room for Audette it would be unfair and that person
might want to meet Audette in the parking lot. Audette told
him not to worry, that such was Audette’s problem, but that he
was offering to return to work. Samples Jr. said he would
have to speak with his lawyer and would get back to Audette.
But Samples Jr. never did, Audette asserts, even though Au-
dette later left a message at the office that he might have to file
a charge if he was not returned to work. He never was.
(4:709–711).
Not disputing Audette’s account of the February 24, 1997
parking-lot conversation, Samples Jr. asserts that he had de-
cided that Audette could not return to the payroll because he
“promoted violence against other employees.” (6:1162).
Samples is more specific, saying that he “enforced” his son’s
decision, and will not have Audette back on his payroll, be-
cause of a potentially fatal threat to Maurice Reuss and be-
cause of his earlier threat against Ralph Banks. (1:89–90).
Although Audette’s account is undisputed, I find one state-
ment to be his own embellishment—the part about Samples
Jr.’s saying anyone replaced might want to meet Audette in the
parking lot, and Audette’s claimed response. I do not accept
this embellishment for four reasons. First, it is contrary to
Audette’s own testimony that Samples Jr. had told him, in
connection with the Ralph Banks incident, that he did not want
any altercations on the jobsites. Second, it is directly contrary
to Samples Jr.’s credited testimony respecting his position
about the threat against Reuss. Third, the embellishment has
an internally unnatural fit with the rest of the conversation,
suggesting that it is a later-inserted addition. And fourth, Au-
dette’s delivery of this portion had a hollow ring, Audette’s
demeanor was poor respecting it, and I do not believe him.
2. Samples Jr.’s basis for denying reinstatement
a. Background—the Ralph Banks incident
As background to his decision, Samples Jr. relies on an in-
cident in about April 1996 where Audette, apparently at the
end of the workday, went onto a different job of Mid-State’s
for the purpose of confronting another Mid-State employee,
Ralph Banks. Audette admits (4:722) that he told the job su-
perintendent, Mike Watson, that if he found Banks he was
going to fight him. Watson told him that such was not needed
there, and Audette left. Audette places the event as about late
March 1996. (4:724).
Samples Jr. asserts that Watson called him that evening to
express concern over the problem. The next morning Samples
Jr. went to Audette at the jobsite and informed him that he
would not tolerate fighting on the job, and he warned Audette
not to go onto other jobsites looking to fight people. (6:1161-
1162). Conceding that Samples Jr. did come and talk to him,
Audette asserts that Samples Jr. made light of the incident and,
although saying that there should be no altercation on the job-
site, Samples Jr. also said that he did not care what happened
away from the jobsite. (4:723–724). Samples Jr. does not
dispute Audette’s account.
It appears that both Samples Jr. and Audette, each describ-
ing the incident from his own perspective, are correct. In that
sense, Samples Jr. made a point to Audette—no altercations on
the jobs. Although Audette’s personnel file contains no writ-
ten evidence of the incident, much less that a warning was
issued, that obviously means little, for both witnesses ac-
knowledge that the incident occurred. Audette’s personnel file
contains evidence that Audette received a raise effective April
10, 1996. (6:1167–1168). As the date of the incident ranges
from late March to sometime in April, it is unclear whether the
raise came before or after the incident. In any event, Audette
continued working.
b. Strike misconduct—Maurice “Moe” Reuss incident
A week after beginning his strike at Mid-State, Audette be-
gan working for a union contractor, Cleveland Electric, at the
same general jobsite, but on the engineering building. That
building and Physics used the same parking lot. (4:701–702,
739; 5:1027–1029). All agree that an incident occurred in the
parking lot before work early one morning. Reuss dates the
occasion as some 2 to 3 weeks into Audette’s strike. (5:1029).
For convenience, I shall date the incident as occurring on Au-
gust 30, 1996.
Three witnesses describe the incident—Audette, “Moe”
Reuss, and Barry Brunges. Reuss still works as an electrician
for Mid-State (5:1018), as does Brunges (5:1067). The ac-
counts of Reuss and Brunges, while different in some basic
details, are generally consistent respecting the core issue.
Audette’s versions is substantially different. The demeanor of
Reuss and Brunges was favorable, and that of Audette was
unfavorable.
On this occasion, as Reuss, Brunges, and Glen Baldwin, an-
other Mid-State electrician (but now an inspector for the
county, 5:1069), were talking in the parking lot, Audette ap-
proached the group, bragging about the money he then was
earning under a union contract. The others started to leave,
and Audette, pointing his finger at Reuss, told Reuss, “Old
man, I ought to beat the shit out of you.” Reuss replied,
“Young man, you’ve got a lot to learn.” “Old man,” Audette
responded, “you got a lot to learn, and I’m not 30 years old
yet.” “I know you’re not 30” Reuss responded as he and the
others left. (5:1030, Reuss). Reuss reported the threatening
conduct to McLeod and Samples Jr., and Samples Jr. obtained
a permit for Reuss to park in a different lot, closer to Physics,
so he could avoid Audette. (5:1030–1031; 6:1160–1161,
Reuss). Reuss credibly reports that he had always tried to
avoid Audette at work because Audette seemed to take pride in
describing his fights in which he would whip someone.
(5:1024).
Brunges reports that Audette came over to the group ver-
bally attacking Reuss, saying, “You fucking old man; I ought
to slap the shit out of you.” This was followed with a state-
ment by Audette that he ought to slap Reuss for being so damn
stupid by not joining the Union. (5:1068–1070).
It is undisputed that, in the days before Audette went on
strike, and the after the employees had begun discussing the
union while on breaks, Audette, at least on one occasion, had
defended his position favoring the Union by pointing to Reuss
as the “ghost of your Christmas future.” Audette followed this
colorful phrase with the explanation that Reuss had no union
benefits and had to work at retirement age, whereas Audette
planned to be on retirement with union benefits at that age.
(4:725–726; 5:1024–1025). Actually, Reuss is a retiree with a
35-year government pension, and works because he wants to
do so. (5:1025, 1033).
According to Audette, he was talking with the others about
joining the Union when Reuss came and “butted” into the
conversation by making negative comments about unions. As
the other two had said they did not want to join, Audette re-
marked to them, not to Reuss, that sometimes he would like to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1394
“slap some sense” into Baldwin and Brunges. Reuss thought
Audette was speaking to him and challenged Audette to go
ahead and slap him. Reuss acted mad, not scared. Audette
said he was not speaking to Reuss. (4:704–705, 726–728).
At the time of this parking lot incident, Reuss was 65 and 5
feet 9 inches tall, and he currently weighs 185 to 190 pounds.
(5:1032, Reuss). Audette recalls Reuss as being about 60, 5
feet 6 inches or 5 feet 7 inches tall, and about 170 pounds.
(4:724–725). By contrast, Audette was 29 in August 1996, is
5 feet 9 inches, and weighs 200 pounds. (4:713). Audette
appears to be in robust health, with no flab showing on his
husky appearance.
Also at that time, and generally known among supervisors
and employees, Reuss had a surgically implanted artificial
heart valve and a pacemaker. The doctor had advised Reuss,
who also had high blood pressure, to avoid any activity which
could result in a blow to his chest because it could tear the
artificial valve loose. (5:1020–1023).
Having observed the witnesses, I do not believe Bruce Au-
dette. Rather than Reuss’ being the aggressor, I find that he
was the victim of Audette’s threat of physical violence. Reuss
did nothing to provoke Audette’s verbal attack. The context of
this attack shows that Audette’s remarks, far from being hy-
perbole, or some trivial figure of speech, constituted a physical
threat with an unspecified date of execution—perhaps then, or
perhaps the next time Audette met Reuss in the parking lot.
With Reuss’ artificial heart valve, any physical violence
against him could be fatal. I credit Reuss’ account, as sup-
ported in significant respects by the report of Brunges. I reject
the version given by Bruce Audette.
3. Discussion
The General Counsel contends (Brief at 37) that the strike
misconduct ground is a “pretext” because it was not mentioned
by Samples Jr. to Audette on February 24, 1997, and the only
ground given then was “replaced.” To the extent this includes
an argument that Mid-State condoned Audette’s conduct, I
find it without merit. Condonation is not to be lightly inferred,
and the facts must show that the employer has agreed to “wipe
the slate clean.” White Oak Coal Co., 295 NLRB 567, 570
(1989). On that February 24 Samples Jr. also told Audette that
he had to talk with his lawyer and would get back with Au-
dette later. Nothing is unusual about a client’s consulting his
lawyer before making a decision. That discussion yielded
Mid-State’s position—no reinstatement because of strike mis-
conduct. Thus, there was no condonation.
Turn now to the question of whether the violence threatened
by Bruce Audette is so serious that he forfeited his right as an
unfair labor practice striker to reinstatement. The General
Counsel says no; Mid-State argues yes. I agree with Mid-
State. It is well established that any strike activity by strikers
must be peaceful activity. Clear Pine Mouldings, 268 NLRB
1044, 1047 (1984). There quoting with approval from a court
decision, the Board wrote that an employer “need not counte-
nance conduct that amounts to intimidation and threats of bod-
ily harm.” Id. at 1046. Thus, the Board adopted this standard,
268 NLRB at 1046:

Whether the misconduct is such that, under the circum-
stances existing, it may reasonably tend to coerce or in-
timidate employees in the exercise of rights protected un-
der the Act.

The test is objective, not subjective. Mohawk Liqueur Co.,
300 NLRB 1075 (1990).
In our case Audette’s August 30, 1996 threat against Mau-
rice “Moe” Reuss of physical violence, even though not then
accompanied by any overt action, clearly meets the forfeiture
standard established in Clear Pine. As the Board there stated,
“a serious threat may draw its credibility from the surrounding
circumstances and not from the physical gestures of the
speaker.” Clear Pine Mouldings, 268 NLRB 1044, 1046
(1984).
Citing outdated authority, the General Counsel (Brief at 36)
contends that the Board “balances the alleged misconduct
against the severity of the unfair labor practices which pro-
voked the strike in determining if a striker is entitled to rein-
statement.” Not so. Mohawk Liqueur Co., 300 NLRB 1075,
1075 fn. 3 (1990). Nevertheless, as the Board did in Mohawk,
I apply that balancing and conclude, as did the Board there,
that the limited unfair labor practice found to be the cause of
the strike (a no solicitation rule under which no employee was
disciplined) was “not of an egregious nature that could be
deemed to have provoked, or could justify,” Audette’s threat
of physical violence.
On these considerations I find that Mid-State did not unlaw-
fully fail to reinstate unfair labor practice striker Bruce Au-
dette in response to his February 24, 1997 unconditional offer
to return to work. Accordingly, I shall dismiss complaint para-
graph 13(d).
Complaint paragraph 13(e)—refusal to reinstate because of
union activities—appears to be a last-ditch effort, or fallback
position if all else fails to save Audette. The General Coun-
sel’s “pretext” argument (on February 24 Samples Jr. men-
tioned only “replaced,” and not strike misconduct) is the Gov-
ernment’s only supporting contention for this allegation.
The same reasoning applies here as earlier—Samples Jr.
also told Audette he would have to consult his lawyer. The
result of that consultation was the answer (provided at trial) of
strike misconduct. Moreover, if by “pretext” the General
Counsel means disparity of treatment, then the Government
allegation fails, for no record evidence exists showing that
Mid-State has condoned similar conduct by nonstrikers or
employees who appear to be nonunion. And nothing indicates
that Mid-State declined to reinstate Audette because he sup-
ported the Union or went on strike. There being no evidence
to support the allegation, I shall dismiss complaint paragraph
13(e).
Finally, in dismissing complaint paragraphs 13(d) and 13(e)
I have not overlooked that Audette pleaded “no contest” in
about 1988 to a charge of disorderly conduct, involving a fight
(4:719), and about 1992 (4:720) to a charge of “reckless dis-
play of a firearm.” However, while I have peripherally con-
sidered such items in resolving credibility, I note the absence
of evidence that either Samples or Samples Jr., before the trial,
had learned of these criminal matters and that such prior (no
contest) convictions formed some of the basis for their decid-
ing to deny Bruce Audette reinstatement.
H. The Discharges
1. Introduction
The complaint names two employees as having been dis-
charged in violation of 29 USC 158(a)(3). About February 4,
1997, complaint paragraph 11(a) alleges, Mid-State discharged
Jose Ayala. About March 31, 1997, paragraph 11(b) alleges,
MID-STATE, INC. 1395
Mid-State discharged Charles Albert. Mid-State admits the
fact of the discharges, but denies that it violated the statute in
discharging either employee.
2. Jose Ayala
a. Facts
A member of the IBEW for several years (first with a local
in New York, then with Local 1205 in Gainesville; 2:267–
269), and wanting to work in Gainesville, Ayala asked the
Union for permission to apply for work with Mid-State. As
such fit the Union’s needs, the Union agreed. (2:267, 297).
Interviewed and hired (at $9.50 per hour) by Samples Jr. on
the day of his application (JX 3 at 14), December 2, 1996,
Ayala did not divulge information about his union member-
ship. (2:267, 285; JX 1 at 3). The prior employers listed by
Ayala on his application are all nonunion contractors. (2:268,
297–298).
Tuesday, February 4, 1997, was Ayala’s last day at Mid-
State. At the end of the day he was escorted to the job trailer
where Job Superintendent McLeod fired Ayala. (2:278–279,
Ayala; 5:951, McLeod; RX 18 at 3). Ayala testified that
McLeod gave him three reasons for his discharge. One, poor
productivity. Two, complaints by two employees that Ayala
had been talking union to them and they did not want to work
with Ayala anymore. And three, excessive absenteeism.
(2:279).
For his part, McLeod denies that his termination recom-
mendation (to Samples Jr.) included absenteeism. (5:963).
Initially, Samples testified that it did, confirming much (but
not the focus on union) of the three grounds (although greatly
expanding the talking and roaming aspect) listed by Ayala
(1:51–52), but later retracts to say that he got the absenteeism
aspect from his examination of the payroll records (6:1086–
1087). McLeod testified that his recommendation to Samples
Jr. for discharge of Ayala was based on, in effect, production
problems (poor quality, slow productivity, and inadequate
knowledge or skills of the electrical basics) and standing
around and talking instead of working. (5:947–950). Samples
Jr. confirms the recommendation and that he approved the
discharge recommendation when it was clear that, after all the
steps McLeod had taken to see what Ayala could do, even
assigning him a helper, “the work still wasn’t getting done,” so
“at that time we chose to terminate him.” (6:1156–1157).
Ayala worked at Physics. (2:271). Not much is in the re-
cord concerning Ayala’s first 7 to 8 weeks on the job. We
learn that he missed work several times in that period, but this
was due to a disabling heart condition of his son. On some of
these occasions Ayala was able to alert McLeod in advance
and obtain his permission to be absent, while at other times it
was simply notice that an emergency with the boy had arisen.
McLeod told Ayala that he understood, for he had children of
his own. The boy’s medical condition eventually led to heart
surgery in January to correct the problem. At no point did
McLeod ever suggest that Ayala would have to do something
to avoid missing work, either at the time or later. (2:279–282,
285–289).
By letter (GCX 4) dated January 29, 1997, from Harold
Higginbotham of the Union to Samples, the Union notified
Mid-State of (renewed) organizing, and listed three names as a
“partial list of union organizers.” The names Higginbotham
listed are Michael Cooper, Jose Ayala, and Steven James.
That same Wednesday, January 29, as McLeod’s notes reflect
(RX 18 at 1), Ayala and Cooper personally notified McLeod of
their organizing, showing him a copy of, apparently,
Higginbotham’s letter of that date. (5:958, McLeod). Later
that day, also as his notes reflect (RX 18 at 1), McLeod
warned the second floor crew (five persons, Ayala being one)
that he would not tolerate the poor quality of their work, and
their slow production, and that he would terminate the whole
crew if they did not improve. (2:290; 5:958). Of the five on
the crew, only two (Ayala and Steven James) were announced
union supporters. (5:958–959).
Before he announced his union organizing status, Ayala, as
just noted, had been working on the second floor, where he
had been assisted by a helper. (2:275–276). Apparently 2
days later, Friday, January 31, 1997, Ayala was moved to the
“basement”—the ground floor. “Well, it looked like a cellar
down there.” (2:276, Ayala). Ayala does not specify the day
or date (he admits he is not good with dates, 2:300), but states
that it was 2 days before Aaron Harvey was assigned to be his
helper on Monday, February 3. (2:276). McLeod describes
work by Ayala on 60 feet of conduit the (apparently) first day
he was in the basement. McLeod’s notes (RX 18 at 1) and
testimony (5:959) place this as being January 31. McLeod
testified that later that day Ayala and Daryl Thompson in-
formed him that Ayala had a problem from epileptic seizures
and could not work alone, so McLeod assigned Harvey to help
him. (5:948–949). Harvey arrived the next day, which was
Monday, February 3, as previously discussed in relation to the
allegation, and my finding, that McLeod created the impres-
sion of surveillance that February 3. (2:276, 299–302).
Although Ayala testified that he had no helper his first day
in the basement, whereas he had worked with a helper on the
second floor, the record does not describe what work Ayala
was doing on the second floor. In the basement, at least part
of the time, Ayala was working on a 12-foot ladder. (2:277,
300). Clearly it was convenient to have had a helper to hand
items up rather than Ayala’s having to climb down the ladder
to get something. It also makes economic sense, a reason
Mid-State wants to have at least one helper for each journey-
man.9 (6:1137, Samples Jr.). Indeed, Samples Jr. expressly
cites the ladder situation as a specific example of the need for
and use of a helper. (6:1137–1138).
The complaint does not allege that Ayala’s transfer to the
basement was a separate violation of the Act, nor does the
General Counsel argue on brief that the transfer was a direct
response to Ayala’s January 29 announcement of his organiz-
ing status. For his part, McLeod explains that he transferred
Ayala to the basement because he caught him “standing
around” and two helpers, Steven James and Daniel Kelly,
complained that they did not like working around Ayala be-
cause he was interfering with their work. (5:947–948, 950).
This came after (apparently the next day after) James and
Ayala had announced their union status on January 29 and
afterwards, on that same January 29, McLeod had given the
five-man second floor crew a tongue lashing for poor quality
and slow productivity. [Recall that McLeod warned the crew
(as reflected in his notes, RX 18 at 1, and testimony, 5:958–

9 Although the transcript records Samples as saying “8 to 2 people”
(1:96), I think that is a garbled version of what he actually said. What-
ever he said caused me to write “50/50” in my notes. Volume 1 of the
transcript is poorly transcribed. (The court reporting service
apparently has since gone out of business.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1396
959) that he would not tolerate such and would get rid of them
if it continued. Also, of the five men on the crew, only two
(Ayala and James) had announced for the Union. (5:959).]
Ayala discloses that such was not the first time that McLeod
had called the entire second floor crew together. Unfortu-
nately, Ayala does not tell us the nature of those other meet-
ings. (2:289–290).
At the time, Mid-State did not use written warnings, but re-
lied on daily logs the supervisors maintained and on person to
person contact. (6:1104–1105, Samples Jr.). Ayala’s person-
nel file has notations of four reprimands having issued to
Ayala, starting with the date of January 29, 1997. (5:1011–
1012; 6:1170). In short, nothing had warranted even a file
notation until January 29, and then four reprimands are noted
in the space of a few days. Neither party saw fit to describe
the nature of the four reprimands. From the record, I can infer
that the four are as follows.
First, the group tongue lashing of January 29. That is re-
corded in McLeod’s notes for that date (RX 18 at 1), described
by McLeod (5:947, 958), and admitted, at least in part, by
Ayala (2:290). Second, a notation of not working but talking
and interfering with the work of others, based on the asserted
report of James and Kelly, neither of whom testified at trial.
[January 30 appears to be the date of the report, that being the
day before Ayala was transferred.] McLeod does not contend
that he confronted Ayala with this allegation (even if the
names were kept confidential). Nor does McLeod contend that
he confronted Ayala when he saw him “standing around” on,
apparently, Thursday, January 30, the day after the tongue
lashing of the group.
Third, and the one generating the most evidence, Ayala’s
work on Friday, January 31. McLeod severely faults Ayala’s
work performance both as to quality and quantity for that date.
It centers on Ayala’s installing 60 feet of conduit. McLeod
asserts that it was a 1-hour job, but that it took Ayala all day.
(5:948). On direct examination, Ayala denies ever being told,
before his termination, that there was a “problem” with his
productivity. (2:282). On cross examination Ayala admits
quite the opposite, as I describe below. Fourth, an OSHA
violation (leaving a ladder leaning against the wall) on Febru-
ary 3. McLeod’s notes (RX 18 at 2) record this and assert that
McLeod told Ayala about it. McLeod confirms both the act
and that he told Ayala that it was an OSHA violation. (5:960).
Agreeing that such is an OSHA violation, Ayala denies all the
rest. (2:289).
Respecting the group warning of January 29, nothing shows
that the warning was improperly motivated. Indeed, Ayala
reports (2:290) that McLeod had called the crew together
“various times,” although we are not told for what purpose.
As for the asserted reports from Steven James and Daniel
Kelly on, as I have found, January 30, and McLeod’s claim
that he caught Ayala “standing around,” Ayala was not called
as a rebuttal witness to address these claims by McLeod. Even
though McLeod, at some point, apparently decided to describe,
for Ayala’s personnel file, the matter as a reprimand to Ayala
(5:1012), McLeod does not list the matter in his contempora-
neous notes of January 1997 (RX 18). However, neither does
he list Ayala’s transfer to the basement, and there is no dispute
that such an event occurred. It is clear that McLeod’s notes do
not contain an account of everything. The notes do contain
entries stating that, on January 31, Daniel Kelly told McLeod
he was glad that McLeod had relocated Ayala because Ayala
had been talking instead of working [on the second floor]
causing “him [Kelly, apparently] not to complete [his] work.”
(RX 18 at 1–2). On that same date Steven James, the notes
record, told McLeod he also was glad of Ayala’s relocation
because he was tired of repairing Ayala’s work and observing
that Ayala would not listen to him when James told him what
was wrong. (RX 18 at 2). McLeod confirms by testimony.
(5:959–960).
Turn now to the second warning for quality and production,
or the third reprimand. The item most prominently mentioned
here in the testimony is the installation of 60 feet of cable.
Earlier I described McLeod’s assertion that Ayala took all day
to do a 1-hour job. (5:948, 959). Ayala’s description of the
work would suggest something taking much longer than 1 hour
(2:292): “I was running wire conduits. I was also putting a
rack up and I had to go around other people’s work. And I had
to break through concrete blocks to get it out to the hallways
onto a cable tray.”
Also as mentioned earlier, on direct examination Ayala de-
nies ever being told, before his termination, that there was a
problem with his productivity. (2:282). Barely 10 pages later,
on cross examination, Ayala admits to that very fact respecting
the installation of the 60 feet of conduit in the basement on
January 31. (2:290–294). On that occasion, Ayala concedes,
McLeod, about 2:45 that afternoon, came and told Ayala that
he was “not going to tolerate people just getting away with
running a certain amount of pipe.” “Q. And he told you that
you couldn’t expect to get away with that? A. Something like
that. Yeah. Q. And that you were being paid a wage of
$9.5010 an hour? A. Right.” And on that occasion McLeod
told Ayala that he thought Ayala would have been finished
with the pipe and that McLeod needed to start running wire
there. Clearly, I find, McLeod expressed the idea to Ayala that
McLeod had a “problem,” a real problem, with Ayala’s pro-
ductivity.
Although agreeing that McLeod came and expressed the
foregoing to him on January 31, Ayala asserts that McLeod
would not listen when Ayala tried to explain that he had
stopped for a total of about 2 hours to help Charles Albert
handle some 100 feet of very heavy equipment (cable, appar-
ently). (2:290–294). This was not further explored, and the
record does not disclose how customary or reasonable it would
have been for Ayala to have stopped his own assigned work
and, without consulting McLeod, devote a substantial portion
of his time helping Charles Albert. Moreover, when testifying
himself, Albert offers no testimony supporting Ayala on this
matter. Indeed, when describing his assignment to the base-
ment, and having to work on a 12-foot ladder without a helper,
Ayala discloses (2:300), “There was nobody around the whole
place.” Ayala’s description rang hollow in the telling, and the
record does not support his version.
The 60-foot cable matter relates to quantity of production.
Respecting (poor) quality, McLeod offered unrebutted testi-
mony that, either later that same date, or possibly on Monday,
February 3, McLeod “tried to put him [Ayala] on pulling wire
to see if he could do that, at which time I determined very
shortly afterwards he could not pull wire because he did not
know how to do that.” (5:948, McLeod). McLeod explains

10 Although JX 1 at 3 shows Ayala classified as a helper, both
Ayala (2:290–291) and McLeod (5:949) appear to have understood
that Ayala was being paid as a journeyman.
MID-STATE, INC. 1397
that Ayala had put too many neutral wires in one conduit and
not enough neutrals in the other conduit. (5:949). “At about
that time I called Billy [Samples Jr.] and we talked about it,
and he [Samples Jr.] came out and we terminated him”
[Ayala]. (5:948).
Before turning to the fourth event, I should note McLeod’s
testimony that he has fired two others for poor quality and
productivity: Larry Polk Sr. in 1996 (5:952–953) and James
Campbell in 1997 (5:953–954). [Although JX 1 at 3 has no
termination dates for either Polk or Campbell, suggesting that
any termination came after April 14, 1997, the document also
shows no termination dates for Ayala or Charles Albert, and
there is no dispute that they were terminated before April 14.
JX 1 is not entirely reliable respecting termination dates. For
further example, it incorrectly shows that Darryl Thompson
was both hired and terminated on January 20, 1997. (JX 1 at
4.) Yet we know, as discussed much earlier, that Thompson
did not leave until shortly after the April 18 election, for he
was the Union’s observer at the election. (2:158, 161).]
Respecting the fourth event—the ladder incident of Mon-
day, February 3, 1997—I credit McLeod. His note for the
incident appears right above the acknowledged incident when
Samples addressed the organizing committee that February 3.
(RX 18 at 2). Moreover, one page later McLeod made a simi-
lar notation about telling Scott Hedrick not to lean a ladder
against the wall. As mentioned earlier, Hedrick had not indi-
cated any support for the Union. McLeod confirms as to both.
(5:960).
McLeod testified that Samples Jr. accepted his recommen-
dation to terminate Ayala. (5:947–950). Samples Jr. confirms
that he approved McLeod’s recommendation based on prob-
lems with Ayala’s “quality and quantity of work” and the fact
that Ayala “wanted to stand and talk” and “walk out of his
work area” and “there was a lot of work that wasn’t done up to
code.” Rather than singling out Ayala, McLeod told Samples
Jr., McLeod had assembled the whole second floor crew, told
them to correct the problems, and then moved Ayala to the
basement “to see what he could no on his own.” After
McLeod was informed that Ayala had a medical problem,
McLeod assigned him a helper, yet “the work still wasn’t get-
ting done. So at that time we chose to terminate him.”
(6:1156–1157).
On Tuesday, February 4, 1997, as McLeod’s notes reflect
(RX 18 at 3), and as Ayala (2:278–279) and McLeod (5:948,
951) confirm, McLeod terminated Ayala. Ayala testified that
McLeod gave three reasons for the termination. First, poor
productivity. Second, two employees complained that Ayala
was talking union to them and they did not want to work with
Ayala anymore. And three, excessive absenteeism.
Although McLeod asserts that he did not include absentee-
ism as a basis for his recommendation that Ayala be dis-
charged (5:963), Samples (1:51–52) initially recalled it as one
of the grounds. When testifying later, Samples retreated and
claimed that McLeod had not told him of the poor attendance,
but that the pay roll records so disclosed. (6:1086–1087).
Samples Jr. does not list absenteeism.
McLeod acknowledges that one ground for his recommen-
dation of termination was that he caught Ayala standing
around (apparently after McLeod had spoken to the second
floor crew on January 29), and two employees, Dan Kelly and
Steven James, told McLeod that they did not like working
around Ayala because he interfered with their being able to
work. Presumably that is when McLeod reassigned Ayala to
the basement. Steven James, McLeod testified, had already
“come out” for the Union when he and Daniel Kelly com-
plained that Ayala “was talking too much and not working.”
James and Kelly were classified as helpers, as was Ayala,
bargaining unit there were paid less—$8.50 and $8, respec-
tively, to Ayala’s $9.50. (JX 1 at 1, 2, 3).
As McLeod does not dispute Ayala’s first ground, that of
poor productivity, I find that it was given. Although Ayala
possibly could have added the absenteeism ground as part of a
scheme to make Mid-State look bad, I find that McLeod did
list it. Indeed, Samples let the cat out of the bag, so to speak.
Later, Mid-State determined that the absenteeism ground
would appear to be overkill, and so it was scratched. How-
ever, someone forgot to tell Samples until after he had testified
on the first day as the Government’s witness. By adding ab-
senteeism, which missed time had been approved in advance
or excused by McLeod or at least nothing said before the Un-
ion status announcement, Mid-State discloses that it had an
extraordinary reason, beyond normal production reasons, for
wanting to seal tight the discharge of Jose Ayala.
Respecting the second ground, I credit both accounts. That
is, I find that there was a reference to talking union, but that it
was in the context of Ayala’s not doing his work and interfer-
ing with the work of Steven James and Daniel Kelly. In this
connection, I attach weight to the fact that McLeod knew that
James was one of those who announced that he was organizing
for the Union. James, however, apparently did not let his or-
ganizing interfere with his work or the work of others.
McLeod, it appears, respected James for this. Recall the tes-
timony of the impressive witness, Anthony Baccili Jr., that
after Baccili made known his organizing status McLeod still
praised his work and treated Baccili “straight up.” (3:538–
539).
b. Discussion
When the timing is considered with the findings of unfair
labor practices already made, it is possible that the Govern-
ment can be found to have adduced a prima facie case of
unlawful motivation in the discharge of Jose Ayala. Assuming
that to be so (and such a prima facie case would not be a
strong one), I further find that Mid-State carried its affirma-
tive-defense burden of showing that it would have discharged
Ayala even absent any union considerations. The main basis
of the discharge was Ayala’s poor quality and limited produc-
tion. Ayala was not the first to be discharged for such, nor
was he the last. Not only is the main ground credibly estab-
lished, but the second ground (of talking rather than working
and interfering with the work of others) is also supported.
Accordingly, I shall dismiss complaint paragraph 11(a) re-
specting the February 4, 1997 discharge of Jose Ayala.
3. Charles Albert Jr.
a. Facts
(1) Other than the junction box incident
As discussed earlier under the topic of alleged interrogation
by Supervisor Dampier on March 26, 1997, I again note that
Charles Albert Jr. had been a member of the Union since about
August 1994. (2:217). He started work at Mid-State about
November 12, 1996. (2:217; JX 1 at 3). Although he holds no
electrical license, Albert has worked as an electrician since
about the summer of 1985. (2:217). According to Albert, he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1398
notified the Union and took on the organizing duties of a “salt”
after he was hired at Mid-State. (2:252). In its February 5,
1997 letter (GCX 3) to Mid-State, the Union named Albert as
one of the six employees helping (a “partial list”) to organize
the company. Some 2 to 3 weeks (2:221) after his 50 cent pay
raise to $9 an hour on (2:233; 5:1011) January 15, 1997, Al-
bert “started talking a little more about the Union” and began
openly wearing a Union shirt. After that, he was left to work
alone. Foreman Bernie Owens would check on him two or
three times a day two or three times a week. (2:221–222).
[Except as possibly referred to by McLeod in the next para-
graph, the nature, location, and duration of this solitary work
assignment for Albert is not further described, and there is no
explanation whether such was routine or unusual either for
Albert or for other employees. Also, the significance is open
to question. This is so because, as Albert describes, when he
went to Samples Jr. in late December and asked for a pay
raise, a key factor in the argument he presented was that he
was working alone (2:255)—suggesting that he was a reliable
electrician and deserved a pay increase, which he subsequently
received. I draw no inference that there was anything im-
proper in this February work-alone assignment.]
Albert worked at Physics where (William) Patton McLeod
was the job superintendent. McLeod testified that Albert did
good work (both as to speed and quality) in his first assign-
ment on the ground floor (basement). Shortly before McLeod
assigned Albert to the first floor, to continue that work, Albert
informed McLeod that he was a member of IBEW Local 1205.
(5:964). The only reference in McLeod’s notes to any notice
by Albert is an entry for February 4 reflecting that one Dana
Day confronted Albert “about saying he went Union.” (RX 18
at 3). Although the entry possibly means that Albert had been
saying that Day had gone Union, the better interpretation, in
light of all the evidence, is that McLeod overheard Day con-
fronting Albert concerning Albert’s saying that he, Albert, had
gone Union. In short, as of February 4, a day before the Un-
ion’s letter of February 5 to Mid-State naming Albert, among
others, McLeod noted the conversation between Day and Al-
bert about Albert’s saying he had gone Union. Within a day or
two, I find, McLeod received official notification that Albert
was organizing for the Union. Whether this resulted from the
Union’s February 5 letter, or from Albert’s personally inform-
ing McLeod (as McLeod suggests at 5:964), I need not find.
About the same time, I find, Albert began wearing his Union
shirt.
At the end of the workday, Monday, March 31, 1997, Sam-
ples Jr. fired Albert following Samples Jr.’s learning that Al-
bert had botched the installation of a junction box. (1:53;
2:226; 5:970; 6:1159). The junction box incident was the
culmination of a series of events, and I turn now to describe
those events. [On brief, the General Counsel does not mention
or discuss these matters.]
Following Albert’s notice to McLeod of his Union status,
McLeod testified, Albert’s work habits and the quantity of his
work greatly deteriorated. McLeod assertedly spoke to Albert
about this on several occasions, and about being out of his
work area talking to others. Once McLeod caught Albert in
the basement interrupting Daryl Thompson and two others.
McLeod told Albert that he needed to return to work. “His
quality of work and his quantity went way down.” (5:964,
McLeod).
The first of several notes McLeod made about Albert’s dete-
riorating quantity and, or, quality was that for February 10
when McLeod made a brief entry of talking with Albert about
“pipe work—level and plumb.” (RX 18 at 4). McLeod testi-
fied that piping [conduit, apparently] at Physics had to be in-
stalled in an exposed position. Accordingly, it had to be in-
stalled “neat, straight, and square with the building.” How-
ever, Albert’s “pipe work at that time was not running level; it
was running downhill. It was not running square with the
building.” (5:968, McLeod). Other than generally denying
that his salting activities caused him to take a different interest
in his work (2:260), Albert was not called as a rebuttal witness
and therefore never expressly addresses McLeod’s description
of Albert’s piping work on February 10 as “running downhill”
and “not running square with the building.”
On March 3, McLeod’s notes assert (RX 18 at 6), McLeod
talked with Albert “about workmanship—2nd time we made
him correct his work.” McLeod testified that it was a repeat
problem with Albert’s piping “not running square with the
building.” (5:968). This, therefore, was the “second time”
Albert had been directed to correct his piping work. Again,
Albert does not specifically deny respecting his piping work.
He describes an incident, no date give, when he had to remove
piping he had installed, but the problem was caused by man-
agement’s designating the wrong height. (2:247). Unfortu-
nately, the record does not tell us whether this is one of the
two incidents described by McLeod. In any event, other em-
ployees installed pipe or other work that had to be reinstalled
properly. (2:248–249, 262). But we do not know whether any
of these employees were warned, or whether management
made any notes concerning them. Thus, no disparity is shown
by the brief references to them.
The following day, March 4, McLeod’s notes reflect (RX 18
at 6), Samples Jr. came over and gave a “final warning” to
Albert for [poor] “workmanship.” McLeod confirms that “we
would not tolerate this job being done improperly.” (5:968).
Samples Jr. agrees that he warned Albert, but his descriptive
reference to “strapping his conduit properly.” (6:1158) sug-
gests that Samples Jr. has mentally merged events. The “strap-
ping” is an incident covered in McLeod’s notes for March 28.
In any event, Albert agrees that about March 4 Samples Jr.
came and gave him a “final” warning [but the first one he had
received, Albert asserts] for substandard work, and that
Samples Jr. stated that he knew Albert could do better work.
(2:222–223, 256).
A third work problem occurred on Thursday, March 20. Per
his log, McLeod told Albert that he wanted the “lab feeds done
by 3:30 p.m. 3/21/97.” (RX 18 at 7). In his next entry, for
(Wednesday) March 26, McLeod records, “Charles Albert still
not done with Lab feeds. Only was 80’ conduit—milking
job.” (RX 18 at 7). McLeod confirms these entries, explain-
ing that the assignment was given in the morning, when Albert
had only two feeds left. By the following Thursday, Albert
“still was not done,” had run “only 80 foot of conduit” [the
record fails to show the number of feet needed to install the
two lab feeds], “and I wrote down that he was milking the
job.” By “milking,” McLeod meant that Albert was taking
“way longer” to do the work than the time he should have
needed. (5:969).
Conceding the fact of the assignment, Albert says no dead-
line was given. (2:257–258). He correctly denies (2:258) that
McLeod accused him on March 26 of “Milking the job” be-
MID-STATE, INC. 1399
cause McLeod, merely writing that assessment in his notes,
never claims he said that to Albert. Unfortunately, neither
witness tells us what Albert worked on in the intervening days.
Was it all on the two lab feeds, and if so, why would it take
that long, or not take that long? Also, if McLeod wanted the
work done by the end of the day on Friday, March 21, why did
it take him until the following Wednesday, March 26, to check
on the work, see that it still was not done, and enter a note in
his log? Questions abound. Even so, I am persuaded that the
assignment was made as McLeod describes, and that when he
finally checked on the work, it still was not done.
On March 27, McLeod recorded in his log, he twice caught
Albert talking rather than working, “once was about organiz-
ing, once was suspected of same. I told Charles we were here
to work—talk would not be tolerated.” (RX 18 at 8). McLeod
confirms, asserting, “One of those incidents was when I caught
him with Daryl Thompson.” (5:969). Denying this, Albert
agrees that, on another occasion when he was sweeping and
had stopped to talk, he was told to resume working. (2:258–
259). Albert also asserts that, on March 27, McLeod told him
that he needed to complete whatever assignment it was he was
working on. [Albert does not recall the nature of the assign-
ment.] Albert told McLeod that if he had some help he could
complete the work sooner. McLeod simply walked away.
(2:225).
The “strapping” incident of March 28 is next. McLeod’s
notes for this date reflect that he told Albert to relocate side
panel conduits that he had put on the “wrong side of wall.”
“Also told him said conduit was not properly strapped—his
response was that it was—I ended up having someone else fix
conduit.” (RX 18 at 8). McLeod confirms. (5:969). Albert
mostly denies, conceding only that McLeod merely said he
wanted another strap put in a certain spot. “He just thought it
needed another strap. He did not say that he thought that I had
done the job incorrectly.” (2:259–260).
McLeod has two entries for March 31, both pertaining to
Albert. The first reports that he caught Albert “talking instead
of working—when he saw me he took off the other way be-
cause he knew he was out of his work area.” At trial McLeod
confirms by reading the entry. (5:969). Albert does not ad-
dress the incident. The second entry reflects that later that day
Albert was terminated (RX 18 at 9), and McLeod confirms that
such occurred after Samples Jr. came to the site and inspected
the junction box. (5:970).
(2) The junction box incident
A photo (RX 1) of the (2:227–228, 239, 263) junction box
(GCX 7, not offered) is in evidence. Square in shape (2:241,
Albert), the junction box, as the parties stipulated (2:237), has
dimensions of 2 feet high, 2 feet wide, and 8 inches deep. As
its name implies, the box serves as a junction point for electric
wires, a place where wires are spliced. (1:83, Samples). The
wires themselves are pulled through conduits, or pipes, and
these conduits are run into the box. To allow for this entry of
the pipes into the box, holes (called “knockout” holes in the
electrical trade, 2:242) must be cut in the box. As the box is
mounted on a wall from where the conduits emerge, it is obvi-
ous that the holes cut in the box must be at the points where
the conduits leave the wall. (1:84).
For the junction box here, nine holes had to be cut so as to
match and accommodate nine conduits. (2:239; 5:967; RX 1).
In the photo (RX 1), which has the backside, or wall side, fac-
ing the viewer (1:87–88), we see three (vertical) columns of
holes in the box. The first two columns on the left have three
holes each. The column on the viewer’s right has what appar-
ently was intended to be three holes but, determining that they
were off center, the worker redrilled them, giving the three an
elongated or mitotic appearance.
Everyone agrees that Albert botched the job. Albert admits
he failed to measure one group of three conduits, the group
that was coming out of the wall “a little crooked.” (2:226,
228, 230–231). Samples states that an electrician with any
experience would have taken a piece of cardboard, placed it
against the nine conduits, tapped with a hammer on the card-
board to make indentions around the ends of the conduits so as
to mark the locations of the conduits, placed the indented
cardboard on the back of the junction box, marked the box so
as to match the indentions on the cardboard, and then drilled
and cut out holes at the spots marked on the junction box.
(1:85). As Albert concedes (2:249), “I wasn’t thinking prop-
erly at the time.”
For all the evidence about the junction box, the record lacks
an express statement as to which column of three Albert did
first. Apparently, however, it is the far right column with the
mitotic holes. Apparently it is that mitotic column which pri-
marily causes such consternation that Samples is highly criti-
cal of Albert’s ability. (1:53, 86–87). Samples indicates that
the far left column of three holes is the only one done correctly
(1:83–84, 86), with the holes of the middle column being a bit
too large (1:86). The problem is not simply one of aesthetics,
for when the front door, or cover, of the junction box is closed
the holes cannot be seen. (1:88; 2:240). The problem is one
safety, with inadequate grounding leaving the box an electrical
shock hazard. To achieve proper grounding, the conduit con-
nector, which passes through a hole, must fit snugly, and be
clamped tight to produce “bonding integrity.” (1:85–87). As
McLeod asserts (5:967), and Albert acknowledges (2:243), if
the seal at the knockout hole is not tight (if bonding integrity
has been compromised), and if a wire inside the conduit were
to short out, then it could cause the ungrounded junction box
to become electrified (“hot”). If the voltage to the box were
high enough, then a person touching the “hot” junction box
could be “burned” (2:244, Albert) or “seriously injured or
killed (5:967, McLeod). As Samples Jr. bluntly states, “It
would kill them.” (6:1159).
The differing assessments on the extent of electrical shock
injury derives mostly from the different understanding of the
nature of the junction box. Albert recalls the junction box as
being a box for a fire alarm system operating on 110 volts.
(2:243). McLeod (5:964, 965) and Samples Jr. (6:1159) assert
that it was to carry 480 volts for the upstairs high-voltage
emergency electrical system.
No party offered any of the plans and specifications to show
(1) what voltage would pass through the junction box, whether
(2) the box had to be explosion proof for voltage higher than
110, and (3) the function to be served by the wires running
through the box. Under either version, an improperly
grounded junction box would be a safety hazard. Contrary to
the suggestion of Albert (2:244), on occasion news stories
report the sad event of a worker or homeowner being severely
shocked, even killed, by exposure to 110 volts. Finding the
firm testimony of McLeod and Samples Jr. more reliable on
the point of the voltage and the purpose of the box, I find that
the voltage designed for the junction box here was 480.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1400
Eventually, Albert installed the junction box on the wall.
Albert acknowledges that, when he installed it, the box had the
same holes we could see as the box was displayed in the court-
room. (2:239). All agree that the box, as installed by Albert,
would not have passed inspection by the electrical inspector.
(2:246, 263–264, Albert; 5:967, McLeod; 6:1158, Samples
Jr.). To this point, and aside from the voltage dispute, the
parties have been in general agreement concerning Albert’s
work on the junction box. Now, however, the parties switch
from 16 ounce to 8 ounce gloves.
According to Albert (whose recollection about the date is
uncertain), in either December 1996 or January 1997 (2:228–
229), but probably December (2:230), he installed the junction
box. Before hanging it, however, he recognized that he had
made a mistake on his measurements. Indeed, he recognized
this with the first set (2:263) of holes (apparently the mitotic
group of three), so he then called McLeod over, showed him
the holes, told McLeod he had made a mistake, and asked
McLeod what he wanted Albert to do. (2:229–230, 234, 242,
246, 261–263). “Don’t worry about it,” McLeod reassured
Albert, “everybody has a bad day.” (2:230, 234). “Just make
the holes fit. Get some sheet metal, cover it up, and then put it
on the wall,” McLeod told Albert. (2:246, 261, 263, 264).
[Twice Albert answers that the box he showed to McLeod
looked the way it appeared at trial. (2:246, 263). He corrected
that, however, to explain that it was the first (mitotic) set of
holes that he showed to McLeod. (2:263). That is, when he
showed the junction box to McLeod, whenever that was, Al-
bert had drilled only the first (mitotic) set of holes, not all
nine.]
[The significance of the date here, from the Government’s
viewpoint, is the contrast with what occurred after Albert’s
“coming out” for the Union. Before he announced for the
Union, McLeod is very understanding of a mistake, and out-
lines the correction plan. After Albert announces for the Un-
ion, McLeod no longer is so accommodating and, assertedly,
even invents supposed mistakes by Albert. As we shall see in
a moment, McLeod’s version is vastly different.]
Albert offered some confusing testimony on the timing of
the junction box incident in relation to when he received his
January 15 pay raise. Albert initially testified that the junction
box incident came “after” the pay raise. (2:231). Following
some confusing testimony by Albert, and a statement that he
thinks the “mistake” came “after,” he was asked after what, to
which he replied, “The raise was after.” (2:231). He then
confirmed this response and the timing. (2:232–233). The
significance of the pay raise, of course, is whether is was a
merit or longevity raise. On brief Mid-State contends the lat-
ter (Brief at 34), citing testimony (an answer on cross to a
permissibly leading question, 2:254–255) by Albert that Sam-
ples Jr. had agreed to give a raise to Albert after 90 days.
There are two fatal problems with Mid-State’s contention.
First, Albert immediately retracted his answer about the 50
cents after 90 days and testified that Samples Jr. actually had
said, “After I see what you know, then I’ll give you a raise.”
In (late, apparently) December Albert went to Samples Jr., told
him that he had been working by himself doing a variety of
tasks, and “I think I deserve a raise.” Samples Jr. said he
would have to check with McLeod and the foreman. (2:255).
Two weeks or so later Albert received the raise he had re-
quested. Second, as for the 90–day concept, the effective date
of January 15 was barely 2 months after Albert was hired.
McLeod acknowledges that Albert’s pay increase would be
given only if the employee had exhibited good work to that
point. (5:1011). The raise, I find, was a merit increase—and
given some 3 weeks before Mid-State was notified that Albert
was one of the employees organizing on behalf of the Union.
[The merit pay raise is significant only if the junction box
incident occurred before the pay raise, for McLeod, as earlier
noted, freely acknowledges that Albert did good work before
he started organizing for the Union in early February. Albert
testified that the junction box incident occurred before he be-
gan wearing his Union shirt to work. Asked if he was certain
of that, he answered, “To the best of my knowledge, yes.”
(2:229).]
Everyone understood that Albert’s mounting of the junction
box was simply the first phase for the box. When Albert
mounted the box, there were no wires in the conduits. At a
later date someone would be assigned the task of opening the
cover of the junction box and pulling wires through the con-
duits into the box. (2:240–241). [Presumably, either then or
later the wires would be spliced there.] Thus, unlike hiding
defective electrical or plumbing work or materials behind a
wall, any shoddy workmanship on the holes in the box would
be immediately apparent whenever the next person opened the
box to pull the wires.
Turn now to McLeod’s very different version of the junc-
tion box incident. McLeod’s first difference with Albert con-
cerns the timing. McLeod places the date of the incident as
some 2 to 3 weeks before Albert was terminated (5:965, 1006),
or about mid-March 1997—a time after Albert had announced
his organizing status for the Union. [Neither party offered any
evidence that would serve as independent corroboration of the
party’s contention on timing of the incident. The record does
not disclose whether Mid-State kept records showing when it
installed various items or when various steps were taken in the
construction process at Physics. McLeod has no (5:1006–
1007) entry at all in his log (RX 18) for the junction box inci-
dent.]
Second, McLeod insists that what Albert showed him was a
single hole that Albert had drilled in a misalignment. (5:964–
966, 1006).
Third, although acknowledging (5:965, 1006) that he told
Albert, “Don’t worry about it; everybody makes mistakes,”
McLeod asserts that he further told Albert (5:965):

I told him to turn [rotate] the box one quarter turn which
would take the hole in question out of place. I told him I
would get a UL listed knockout seal for that hole. [The
record does not show whether he ever did.] I told him to
get a piece of cardboard and make a template, and mark
off the pipes coming through the wall, and transpose it on
the back of the box and re-knock it out.

McLeod’s rotation version requires some explanation. As
noted earlier, the junction box is shaped as a square. Accord-
ingly, if a hole is cut off center, all the electrician has to do is
cover the hole with a “knockout seal” (a piece of metal de-
signed for that purpose, 2:241), rotate the box a quarter turn,
and drill a new hole with the proper alignment. (2:241–242,
Albert). In fact, as Albert concedes (2:242), because the holes
in question (even all nine) are in the top half of the junction
box (GCX 7), he could have rotated the box, covered the
holes, and drilled new ones in the good half.
MID-STATE, INC. 1401
The next time McLeod saw the junction box was the day
[Monday, March 31] that Samples Jr. fired Albert. (5:966).
[McLeod places the occasion as the day before, 5:966, and the
day of 5:1005, Albert’s termination. As March 30 was a Sun-
day, and as no evidence shows that Mid-State worked that
Sunday, I find that it all occurred on the one day of Monday,
March 31, 1997.] McLeod had assigned Zot Szurgot to pull
wires into the box. As McLeod describes it (5:966):

When he [Szurgot] got to the box and removed the cover,
he saw what it looked like; he come and got me and asked
me if I had seen it. I told him no, at which time I saw it.
I asked him to remove it from the wall, and I went and
called and got another box sent out.

The call is what led to Albert’s discharge, for McLeod
called Samples Jr. who asked McLeod why he needed another
box when Samples Jr. had already sent one over for that loca-
tion. McLeod explained the problem. Samples Jr. came to
Physics, inspected the junction box, returned to the shop, and
later that day Albert was discharged. (5:966–967, 1005).
Samples Jr. confirms the sequence, confirms that the work had
been done wrong and would not pass inspection, confirms that
he previously had warned Albert about the quality and amount
of his production, states that, as a precaution in view of Al-
bert’s union status, he called Mid-State’s attorney, and con-
firms that he decided to terminate Albert. (6:1157–1159). As
Albert acknowledges, Samples Jr. had not been at Physics the
day of the junction box incident, whenever that incident oc-
curred. (2:239). Nothing suggests that Samples Jr. was aware
of it before March 31.
Although Albert did not testify in the rebuttal stage, on
cross examination he describes what he did after McLeod as-
sertedly told him to get some sheet metal, cover the holes, and
“make them [or it] work.” (2:246, 261, 263–264). Over the
course of the next 2.5 to 3.0 hours (2:245, 250–251) Albert
searched for some sheet metal and fabricated (2:242–244)
some metal pieces to cover the holes which he apparently then
redrilled in his unsuccessful effort to “make them fit.” Some
of the fabricated pieces (6:1158) were in the junction box at
the trial (1:87), but no record photograph shows them. Asked
why he did not use some “knockout seals” to cover the holes,
Albert testified that he asked McLeod about doing that, but
McLeod just said to get some sheet metal and make the holes
fit. (2:246).
Albert denies McLeod’s one-hole/rotation version. (2:242).
Why did not Albert suggest to McLeod that they simply rotate
the box and redrill? His answer (this time)11 was (2:249):

My mind was possibly somewhere else. I wasn’t, you
know, that’s why I had the mistake with the thing. I
wasn’t thinking properly at the time. I don’t know where
my mind was at the time. But, I knew once I got done
with it and looked at it, it wasn’t something that I would,
you know, like putting up on a job I was doing.

Samples Jr. asserts that McLeod would never have accepted
Albert’s work on the junction box. “He is too much of a per-
fectionist.” (6:1160). This testimony is of little value. Not

11 Note that there appears to be a conflict with his earlier (2:246)
answer, cited in the preceding paragraph, asserting that he asked
McLeod about using “knockout” seals, only to be told to make the
holes fit.
even Albert contends that the box he showed McLeod in De-
cember 1996 looked like that which Zot Szurgot found when
he opened the box on March 31, 1997. Then, and only then,
did McLeod see all the holes and sheet metal patches that Al-
bert had fabricated to “make it fit.” Not only did his own
patchwork embarrass Albert, as just quoted (2:249), but even
Albert thought that his futile attempt to achieve bonding integ-
rity would not pass inspection. (2:246, 264).
The critical question here is whether McLeod told Albert to
rotate and redrill. Or did McLeod, for some strange reason
(strange because he knew that any sloppy and unsafe work
would not be hidden behind some wall, and strange because
the easiest solution of all was right in front of his nose—just
rotate and redrill) tell Albert just to make his mitotic holes
work by fabricating some sheet metal pieces [And, heavens,
don’t use any “knockout” seals, just fabricate your own!!] and
drilling new holes through those fabricated pieces? What we
saw in the courtroom, as in the photo (RX 1), were simply
some holes in the junction box. We do not get the full flavor
that met McLeod’s eyes (and then Samples Jr.’s) on March 31
when he saw the fabricated pieces attached to the holes. As
Samples Jr. told Albert in terminating him, Mid-State cannot
afford to pay twice for the same work. (2:226, 249–250).
b. Discussion
Contending (Brief at 39–41) that the Government estab-
lished, prima facie, that Albert’s discharge was unlawfully
motivated, the General Counsel argues, first, that Albert had
done good work, for which he was rewarded on January 15,
1997 with a merit pay increase of 50 cents per hour. Second,
next came the early February announcement of Albert’s status
as a Union organizer and the start of Albert’s wearing of a
Union shirt. Third, the “final” warning was imposed on March
4, just about a month after Albert’s “coming out” announce-
ment. Fourth, although Superintendent McLeod had excused
Albert’s December 1996 mistake on the junction box, Vice
President and General Superintendent Samples Jr. seized on it
as a pretext to fire Albert. And fifth, add to the foregoing mix
the demonstrated animus toward members of the Union’s or-
ganizing committee, and the weight of the 8(a)(1) allegations
[most of which I have dismissed], and unlawful motivation can
be inferred. Finally, Mid-State did not carry its burden of
showing that it would have taken the same (discharge action)
even in the absence of any union considerations.
The General Counsel neither alleges nor argues that the “fi-
nal” warning of March 4 was unlawful, but merely cites its
timing. But timing, even in the conjunction shown here, gives
no basis for inferring that the warning was unlawfully moti-
vated. That is especially so where, as here, Albert never de-
nied that he had installed conduits at Physics on a “downhill”
angle, and no evidence shows that Mid-State tolerated such
from others or failed to warn others who repeatedly were do-
ing poor work. Indeed, the record shows that Mid-State
warned others and that McLeod has terminated employees, or
recommended such, for employees doing substandard work.
That takes us directly to the junction box “pretext.” The
Government argues pretext because Superintendent McLeod
excused Albert’s mistake, thereby proving that Mid-State did
not view the mistake as a dischargeable offense, yet after Al-
bert “came out” for the Union, Mid-State fired him because of
the junction box mistake.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1402
As the Government states it, and ignoring a majority of the
evidence as to Albert’s case, the Government may have de-
scribed a prima facie case. Unfortunately, the description is a
grotesquely distorted view of the case. A good analogy would
be the boxer who steps up at the end of the fight and asks the
judges to score points for the times he hit his opponent, but to
disregard all the knockdowns which he suffered at the hands of
that opponent.
The Government’s prima facie case must be based on a pre-
ponderance of the credible evidence. All record evidence must
be considered. I have done that. Respecting the junction box
incident, two crucial questions pop up immediately. First,
when did the incident occur—before or after the early Febru-
ary “coming out” announcement? Second, whose version of
the incident is to be credited—Albert’s or McLeod’s?
Respecting the first question, concerning timing, I credit the
more positive testimony given by Superintendent McLeod
over the somewhat vacillating account rendered by Albert.
That fixes the date as mid-March, a month or so after Albert’s
“coming out” announcement, and apparently even after the
“final” warning of March 4. The fact that McLeod made no
log entry for it shows two things. First, McLeod treated Albert
as (3:539) he had done Anthony Baccili Jr.—“straight up.”
That is, he did not seize on a mistake on Albert’s drilling of
the first hole to zap him for his Union activities, but simply
told him to rotate the box, mark the new quarter correctly, and
drill a new hole in the good quarter. Second, it shows that
McLeod considered the one-hole off-center drilling very mi-
nor. This minor incident was not anywhere near the problem
of exposed conduit running “downhill” that had to be replaced,
for which poor work McLeod did make an entry. As McLeod
clearly did not log every minor event of each day on the job, I
infer that he did not log this one because it was so minor.
[While he certainly could have logged what he saw on March
31, but did not, there is no dispute that on that date he saw a
junction box that, it must have appeared, some lawyer or old
ALJ, rather than an electrician, had prepared.]
As for whose version of the incident, I again credit McLeod
over Albert. McLeod testified favorably. Moreover, con-
trasted with McLeod’s direct description, Albert appears (as I
mentioned earlier) to answer both ways on the question of why
he did not recommend to McLeod that they simply rotate the
box, initially suggesting that he did ask McLeod about using
knockout seals (2:246), yet a mere three pages later (2:249)
insisting that he did not do so because “I wasn’t thinking prop-
erly at the time.” Albert, I find, is an unreliable witness. [Re-
specting the version of the incident, I would credit McLeod
even if I were to find that what Albert showed him in mid-
March was all three mitotic holes (as Albert contends) rather
than just the first hole. Whether one hole or three, all Albert
had to do, McLeod told him, was rotate and redrill.]
Although unlicensed, Charles Albert Jr. is an experienced
electrician. As of the relevant time, Albert had worked as an
electrician for about 11 years. (2:217). Initially Albert did
good work. Once he turned his focus to organizing for the
Union, however, his work quality and productivity hit the
skids. That is why Samples Jr., in giving Albert a “final”
warning on March 4, told Albert that (2:222, Albert) he knew
Albert was capable of doing better work. Mid-State does not
contend that Albert sought to sabotage the Physics job, arguing
only that Albert’s work suffered because his attention was
devoted to organizing for the Union.
Finding that the Government failed to establish prima facie,
by a preponderance of the credible evidence, that a motivating
reason for Mid-State’s discharge of Charles Albert Jr. on
March 31, 1997 was Albert’s status as an employee organizer
for the Union, I shall dismiss complaint paragraph 11(b). That
completes coverage of the complaint allegations.
I. The Union’s Objections
The Union’s election petition (GCX 1y) was filed and dock-
eted as Case 12–RC–8071 on March 7, 1997. Under estab-
lished Board law, only conduct that occurred between that date
and the date of the April 18, 1997 election may be used as
grounds for setting aside the Union’s election victory. Ideal
Electric & Mfg. Co., 134 NLRB 1275 (1961). Of the com-
plaint allegations falling within this “critical” preelection pe-
riod, I have dismissed all. The July 24, 1997 order (GCX
1LL) directing a hearing on these objections indicates that the
objections, and matters raised during the investigation of the
objections, are coextensive with the alleged unfair labor prac-
tices in the critical period. That is the understanding of the
Union and Mid-State as expressed at the trial (4:869–870) and
as reflected on brief by the General Counsel (Brief at 41 fn. 4),
and by Mid-State (Brief at 47–48). Having dismissed all such
allegations, I now recommend that the Board dismiss the Un-
ion’s objections and certify the results of the election of April
18, 1997.
CONCLUSIONS OF LAW
1. The Respondent, Mid-State, Inc., is an employer engaged
in commerce within the meaning of Section 2(b) and (7) of the
Act.
2. International Brotherhood of Electrical Workers, Local
1205, AFL–CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All electricians, electrician helpers and apprentices em-
ployed by the Employer at its Gainesville, Florida facility,
excluding all other employees, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(a) of the Act.
4. By orally promulgating a no solicitation rule which pro-
hibited solicitation during break time, by threatening that Mid-
State would close its business if employees were represented
by a union, by engaging in conduct which would reasonably
create the impression that employees’ union activities were
under surveillance, and by threatening to sue employees per-
sonally in retaliation for their union activities, Mid-State has
violated Section 8(a)(1) of the Act.
5. Mid-State has not violated the Act in any other manner
alleged to be unlawful by the Government’s July 15, 1997
complaint.
6. The unfair labor practices described above in paragraph 4
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
MID-STATE, INC. 1403
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, Mid-State, Inc., its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Promulgating a no-solicitation rule which prohibits solici-
tation during breaktime; threatening that Mid-State will close
its business if employees are represented by a union; engaging
in conduct which would reasonably create the impression that
employees’ union activities are under surveillance; and threat-
ening to sue employees personally and individually in retalia-
tion for their union activities.
(b) 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 designed to effectu-
ate the policies of the Act.
(a) To the extent it has not already done so, rescind its rule
prohibiting solicitation on breaktime.
b.Within 14 days after service by the Region, post at its shop
at Gainesville, Florida, and at all its jobsite trailers in the
Gainesville, Florida area, copies of the attached notice marked
“Appendix.”13 Copies of the notice, on forms provided by the
Regional Director for Region 12, after being signed by Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained by it for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or ceased its operation at the facility
involved in this proceeding, the Respondent shall duplicate and

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, 29 CFR 102.46, the findings, conclu-
sions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, 29 CFR 102.48, be adopted by the Board and all objections to
them shall be deemed waived for all purposes.
13 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.”
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 7, 1996, the date of the first unfair labor
practice found in this proceeding.
(c) 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
insofar 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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection.
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT promulgate a no-solicitation rule which
prohibits solicitation during breaktime.
WE WILL NOT threaten you that we will close our business
if you choose to be represented by a union.
WE WILL NOT engage in conduct which would reasonably
create the impression that your union activities are under sur-
veillance.
WE WILL NOT threaten to sue you individually and person-
ally in retaliation for your union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
MID-STATE, INC.