Midwest Telephone Service, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 28, 2011

08-CA-038901 (N.L.R.B. Dec. 28, 2011)

JD–77–11
Girard, Ohio
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MID-WEST TELEPHONE SERVICE, INC.
and
WILFREDO PLACERES, an Individual Case 8–CA–38901
and
DUSTIN PORTER, an Individual Case 8–CA–39168
and
BEN FANNIN, an Individual Cases 8–CA–39297
8–CA–39398
and
MICHAEL WILLIAMS, an Individual Case 8–CA–39334
Melanie Bordelois,
for the General Counsel.
Hans Nilges and Shannon Draher (Morrow & Meyer, LLC),
of North Canton, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Cleveland, Ohio,
on October 11–13, 2011. Charging Party Placeres filed the charge in Case 8–CA–38901 on
April 20, 2010. Charging Party Porter filed the charge in Case 8–CA–39168 on September 28,
2010. The Acting General Counsel issued an order consolidating cases, amended consolidated
complaint, and notice of hearing in those cases on November 23, 2010. Thereafter, Charging
Party Fannin filed the charge in Case 8–CA–39297 on January 5, 2011, and an amended charge
JD–77–11
2
was filed on June 21, 2011. Charging Party Williams filed the charge in Case 8–CA–39334 on
February 9, 2011. Charging Party Fannin filed the charge in Case 8–CA–39388 on March 18,
2011. On June 24, 2011, the Acting General Counsel issued an order consolidating cases,
second amended consolidated complaint, and notice of hearing (the complaint) in these cases.
5
The complaint alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Placeres on April 13, 2010, and Porter on April 29, 2010. The complaint further
alleges that the Respondent violated Section 8(a)(4), (3), and (1) of the Act by requiring Fannin
to use his own vehicle to drive to and from jobsites from January 17, 2011; discharging Fannin
on March 10, 2011, and by refusing to assign work to Williams since January 28, 2011. The 10
complaint also alleges that the Respondent violated Section 8(a)(1) of the Act by Project
Coordinator Mark Davis threatening an employee with termination if he talked about the union
on April 1, 2010, and by engaging in surveillance of employees union activities on January 28,
2011. Finally, the complaint alleges that the Respondent violated Section 8(a)(1) of the Act by
Vice President George Vaughn Junior, on January 28, 2011, by threatening an employee with an 15
unspecified adverse action because of his union activity and soliciting employees to form an in-
house union.
The Respondent’s answer denied the material allegations in a complaint. On the entire
record,1 including my observation of the demeanor of the witnesses,2 and after considering the 20
briefs filed by the Acting General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION25
The Respondent, a corporation, with an office and place of business located in Girard,
Ohio, is engaged in the installation of communication wiring. Annually in conducting its
business operations, the Respondent performs services valued in excess of $50,000 in states
other than the State of Ohio. The Respondent admits, and I find, that it is an employer engaged 30
in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
35

1 The transcript contains some errors which are inconsequential for the most part. However, I find it
necessary to correct one error as follows:
Page line change to
453 10 race trade
2 In making my findings regarding the credibility of witnesses, I considered their demeanor, the
content of the testimony and the inherent probabilities based on the record as a whole. In certain
instances, I credited some, but not all, of what the witness said. I note, in this regard, that “[N]othing is
more common in all kinds of judicial decisions than to believe some and not all” of the witness’
testimony. Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp.,
179 F.2d 749, 754 (2d Cir. 1950), rev’d on other grounds 340 U.S. 474 (1951). See also J. Shaw
Associates, LLC, 349 NLRB 939, 939–940 (2007).
JD–77–11
3
II. ALLEGED UNFAIR LABOR PRACTICES
Background
The Respondent is a communications wiring contractor and is involved in the installation 5
of telephone services, computer network services and security systems. It also performs service
work on existing systems. The Respondent has been in business since 1992, and has an office
and facility located in Girard, Ohio. The Respondent’s president is Mary Jo Vaughn. Her
husband, George Vaughn Junior is the vice president. Shawn Vaughn is George Vaughn
Junior’s brother and the Respondent’s project superintendent. Brian Singleton is a registered 10
communication distribution designer and Mark Davis is the Respondent’s project coordinator.
All of the above individuals are admitted supervisors and agents of the Respondent. George
Vaugh Junior’s father, George Vaughn Senior, is employed as a nonsupervisory employee.
The Respondent employs wire pullers, who are at times referred to as cable installers, 15
whose primary job is to install cable wires and perform the tasks associated with the installation
or service of a communications system. The Respondent considers employees with sufficient
skill to “troubleshoot” systems to be technicians. Employees with sufficient skill levels are
designated as foremen on particular jobs. Subject to the direction of one of the Respondent’s
supervisors, a foreman gives direction to the other employees on the jobsite regarding specific 20
assignments and the order in which work is to be completed. Foremen spend a great majority of
their time actually performing installation or service work. There is no dispute regarding the fact
that foremen are statutory employees
The number of employees that Respondent has employed has varied over the years. In 25
2008, the Respondent employed 21nonsupervisory employees while at the time of the hearing it
employed 9. The Respondent generally employs approximately 12 nonsupervisory employees.
The Respondent has some history of collective bargaining. In approximately 2003, the
Respondent signed a 2-year agreement with the Communications Workers of America, Local 30
4300 (the Union). This agreement was entered into pursuant to Section 8(f) of the Act as there
was no election held or any other indication of majority support for the Union.3 George Vaughn
Junior (Vaughn Junior) testified that he approached the Union and asked about entering into a
collective-bargaining agreement. He did so because having a collective-bargaining agreement
with a union would permit the Respondent to bid on “union jobs” on which all the contractors 35
had collective-bargaining agreements.
After the expiration of the first collective-bargaining agreement with the Union, the
Respondent entered into a 2-year agreement with another union, the Congress of Independent
Unions. After the expiration of that agreement, the Respondent entered into a series of 8(f) 40
agreements with the Communication Workers of America, Local 4300. The last agreement
between the Respondent and the Union was effective from January 25, 2009, to January 24, 2011
(GC Exh. 2). Article 2 of the agreement describes the unit as:

3 Since the Respondent is engaged primarily in the building and construction industry it is privileged
to enter into an agreement under Section 8(f). John Deklewa & Sons, 282 NLRB 1375, 1380 (1987),
enfd. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988).
JD–77–11
4
All employees of the Company, but excluding professional employees and
supervisors as defined in the National Labor Relations Act.
Article 19 of the agreement provides wage rates for two job classifications: cable
foreman and wire puller.5
On November 22, 2010, the Respondent notified the Union, by letter, that it wished to
terminate the agreement (R. Exh.13). The Respondent adhered to the terms of the agreement
through its expiration date of January 24, 2011. The Respondent’s employees have been
unrepresented since the expiration of the agreement10
The Alleged 8(a)(3) and (1) Discharges of Placeres and Porter and the
Alleged 8(a)(1) Threat by Mark Davis
Paragraph 11(a) of the complaint alleges that on April 1, 2010, the Respondent’s Project 15
Coordinator Mark Davis threatened an employee with termination if the employee talked about
the Union.
In support of this allegation, former employee Dustin Porter testified that he began
working for the Respondent in January 2010 as a wire puller. Porter was terminated on April 29, 20
2010, and, as noted above, the Acting General Counsel alleges his termination violated Section
8(a)(3) and (1) of the Act.
According to Porter, he had been working for the Respondent for about a month and was
at a jobsite in Warren, Ohio, when, during a break, an employee from another company, who 25
was installing insulation in the building, asked him if he was in a union. Porter replied that he
had no idea if there was a union at the Respondent. Travis Davis, who also worked for the
Respondent and is the son of Mark Davis, was also present for this conversation.4 Porter also
recalled another one of Respondent’s employees was present, but could not recall specifically
who it was.30
Porter testified that as he was returning to work after the break, Mark Davis, the
Respondent’s project coordinator, approached him and asked what he was talking about with the
employees of the other contractor. Porter replied that they had asked him about the Union.
Davis told Porter that he spoke about the Union to anyone again he would be fired. Porter 35
replied that he did not know anything about the Union and returned to work. Porter testified that
Michael Williams was standing nearby when Davis spoke to him.
Michael Williams also testified on behalf of the Acting General Counsel regarding this
incident. According to Williams, he was present in late winter 2010 at breaktime with Travis 40
Davis, Porter, and some employees who were spraying insulation materials, who worked for an
employer from the Cleveland, Ohio area. The insulation employees asked the three Midwest
Telephone employees which union they belonged to. Williams and Porter both indicated that
they did not know anything about the Union. Travis Davis replied that they were represented by
CWA, Local 4300. As Porter and Williams returned to work, Mark Davis asked Porter what he 45

4 Travis Davis did not testify at the hearing.
JD–77–11
5
was doing talking about the Union. Porter said that the employees of the insulation company
asked which union they belonged to and Porter replied that he did not know anything about the
Union. Williams testified that Davis told Porter that if he brought up the Union one more time,
he would fire him.
5
Mark Davis testified that in February 2010, he was working at the Jefferson school
project in Warren, Ohio, when he heard some employees talking about their wages and what
union they belonged to. Davis recalled that Williams and Porter were there and that employees
Ben Fannin, who is Porter’s brother, and Joe Caicco may have also been present. According to
Davis, he saw Porter in the hallway talking to an employee of another contractor while both 10
employees were working. After about 2 or 3 minutes, Davis approached Porter and told him that
if he was going to talk about the Union he had to do it on a break, at lunchtime, or after work.
Davis testified specifically that he did not threaten Porter with termination during this
conversation. Davis also claimed that he never told Vaughn Junior anything about the
conversation he overheard.15
I credit the mutually corroborative testimony of Porter and Williams regarding the
conversation between Mark Davis and Porter. Their testimony was detailed and this portion of
their testimony reflected certainty about the events. On the other hand, Davis was somewhat
uncertain regarding the specific details of the conversation he had with Porter and appeared to be 20
testifying in a manner that he felt would assist the Respondent’s defense. In addition, I find the
testimony of Porter and Williams to be more plausible. The record establishes that while the
Respondent had a contract with the Union, the employees had very little awareness of whether a
Union represented them and it appears that the Respondent wanted to keep it that way. While
the record establishes that prior to beginning work with the Respondent in 1992 with his friend 25
and neighbor, Vaughn Junior, Mark Davis was a member of the United Steelworkers of America
and held various leadership positions in his local union, I find that such a remote connection to a
union does not support a finding that Davis would not have made such a threat. The record
establishes that Mark Davis has great loyalty to the Respondent and its policies and would act in
a way he believed would further those policies. Based on the credited testimony, I find that in 30
February 2010, the Respondent, through Mark Davis, threatened Porter with termination if he
spoke about the Union again.
As a threshold issue in determining whether Mark Davis’ statement violated Section
8(a)(1) I must determine whether the complaint allegation in paragraph 11(a) is supported by a 35
timely filed charge. The charge filed by Porter in Case 8–CA–39168 on September 28, 2010,
alleges that he was terminated in violation of Section 8(a)(3) and (1) and also specifically alleges
that the Respondent threatened to discharge employees if they engaged in union activity (GC
Exh. 1a). Accordingly, the 10(b) period regarding this charge is March 28, 2010. Since I find
that the threat made by Davis occurred in February 2010, the allegation regarding the threat is 40
outside the 10(b) period of Case 8–CA–39168. However, Placeres filed a charge in Case 8-CA-
38901 on April 20, 2010 alleging that the Respondent discharged him because of his union
activities. This charge also specifically alleges that the Respondent interfered, restrained, and
coerced employees in the exercise of their Section 7 rights (GC Exh.1a). Thus, the question is
whether the allegation contained in Paragraph 11(a) of the complaint regarding the threat made 45
by Davis is closely related to the charge filed by Placeres on April 20, 2010. In Redd-I , Inc.,
290 NLRB 115 (1988), the Board set forth the factors to be considered in deciding whether
JD–77–11
6
complaint allegations are “closely related” to a timely filed charge. In SKC Electric, Inc., 350
NLRB 857, 858 fn. 7 (2007), the Board summarized the three-part test in Redd-I as follows:
First, the Board examines whether the untimely allegations involve the same legal
theory as the timely allegations. Second, the Board considers whether the timely 5
and untimely allegations arise from the same factual circumstances or sequence of
events. Finally, the Board may consider whether the respondent would raise the
same or similar defenses to both allegations.
The legal theories underlying the charge filed by Placeres in Case 8–CA–38901 and 10
paragraph 11(a) of the complaint are very similar. As will be explained in further detail later, the
theory regarding the charge filed by Placeres is that the Respondent terminated him because it
did not want him to involve the Union in a dispute over his wage rate. With respect to the
allegation in paragraph 11(a) of the complaint, the Acting General Counsel alleges that Davis
threatened Porter with termination if he again spoke about the Union to chill any attempt to 15
inquire about the Union or contract wage rates. I also note that the charge in Case 8–CA–38901
specifically alleged that the Respondent was interfering, coercing, and restraining its employees
in the exercise of Section 7 rights. Thus, the first part of the Redd-I test is clearly met here.
With respect to the second factor, the threat made by Davis and the alleged discharge of 20
Placeres are at most 2 months apart. Both paragraph 11(a) of the complaint and the charge in
Case 8–CA–38901 involves allegations arising from a sequence of events that began with the
threat of termination for talking about the Union and proceeds to an alleged discharge for
attempting to involve the Union in a wage dispute I find that the allegations of paragraph 11(a)
of the complaint and allegations of the charge in Case 8–CA–38901 involve a progression of 25
events that satisfies the second requirement of the Redd-I test.
I also considered the third factor and note that the Respondent has raised similar defenses
to the threat made by Davis and the alleged unlawful discharge of Placeres. In this connection,
the Respondent contends that it bore no animus against the Union and therefore the claim that its 30
supervisors and agents interfered with the Section 7 rights of its employees is not plausible. It
also argues that Porter and Williams are not credible witnesses and that Placeres’ testimony
regarding the circumstances of his discharge is not reliable because he admitted that he may have
misunderstood what Brian Singleton, one of the Respondent supervisors, said to him at the time
of his alleged discharge. Accordingly, there is some commonality regarding the defenses raised 35
to both the threat made by Davis and the allegation that Placeres was discharged in violation of
Section 8(a)(3) and (1) of the Act.
Based upon the foregoing, I find that the allegations of paragraph 11(a) of the complaint
are closely related to the allegations raised by the charge in Case 8–CA–38901. Accordingly, I 40
find, based on the credibility resolution set forth above, that the Respondent, through Mark
Davis, violated Section 8(a)(1) of the Act by threatening an employee with termination if he
spoke about the Union again.
JD–77–11
7
Wilfredo Placeres
Paragraph 16 of the complaint alleges that the Respondent terminated Wilfredo Placeres
in April 13, 2010, because he sought the assistance of the Union and engaged in concerted
activities.5
The Respondent first contends that the complaint allegation regarding Placeres should be
dismissed based upon a non-Board adjustment it reached with Placeres, which involved
reinstating him to his former job. After being reinstated, Placeres submitted a withdrawal of his
charge which the Regional Director refused to approve. Counsel for the Acting General Counsel 10
contends that I should not approve Placeres’ still outstanding withdrawal request under the
circumstances of this case. The Respondent further contends that if I refuse to approve the
withdrawal and decide the merits of the complaint allegation regarding Placeres, it did not
discharge him for any union or concerted activities he engaged in; rather the Respondent
contends that Placeres voluntarily quit his employment because of a misunderstanding regarding 15
the wage rate he was paid on a job.
Facts
Placeres testified that he has been employed by the Respondent on several occasions.520
Placeres was first employed as a cable installer, or wire puller as it is sometimes referred to, in
2007 and quit his employment in February 2009. Pursuant to a call from Brian Singleton asking
him to return to work, Placeres again began to work for the Respondent in January 2010. He
testified that although he had become a member of the Union during his first round of
employment with the Respondent, he did not become a member again after being rehired in 25
2010.
When Placeres received a pay stub on April 9, 2010, for the period from March 21, 2010,
to April 3, 2010, (GC Exh. 36) he noticed a $60 deduction from his pay. On this pay stub the
deduction was listed as an MWTS fee. According to Placeres, on April 13, 2011, he called the 30
Respondent’s office from the jobsite in Hubbard, Ohio, and spoke to Jan Kovach, the office
manager. Placeres said that there was money taken out of his paycheck and he needed to speak
to either the Respondent’s president or vice president. (Tr. 95–97.) He also asked Kovach for
the telephone number of the Union. (Tr. 97, 115.) Kovach told Placeres that the phone number
of the Union was posted in the estimating office (Tr. 115). 35
According to Placeres, he called the office again later that day and Brian Singleton
answered the phone. Placeres testified that he told Singleton that he wanted to speak with the
president or the vice president; Singleton replied that they had already given him the reason for
the deduction. Singleton also stated that Placeres was not in the Union so that he could not call 40
the Union.6 Shortly afterwards Shawn Vaughn told Placeres that Singleton was going to come to
the jobsite to speak to him later in the day. Placeres, who was upset by this situation, admitted
that he told Vaughn that he might punch Singleton in the nose when he got there. (Tr. 110.)

5 Placeres testified through a Spanish interpreter.
6 Singleton specifically denied that Placeres had asked him for the Union’s phone number.
JD–77–11
8
At the end of the workday on April 13, 2010, Singleton arrived at the jobsite that Placeres
was working on. Placeres testified that Singleton asked him what happened to him and informed
him that he was fired. When the Placeres asked Singleton why he was being fired, Singleton
said he was “following orders from the owners.” On direct examination, however, Placeres
admitted that he did not know if he understood correctly what Singleton had said (Tr. 100). On 5
cross-examination, Placeres reiterated that that he may have misunderstood what Singleton said
to him because his English is “very-very minimum” and that he was upset when this
conversation occurred. (Tr. 114–115.)7
Singleton’s testimony regarding this matter is directly contradictory to that of Placeres. 10
Singleton testified that on April 13, 2010, Vaughn Junior told him around lunchtime that
Placeres was “pretty upset” because he thought he wasn’t getting the proper wage rate on the job
he was working on. Singleton checked with Kovach to make sure that Placeres was being paid
the proper wage at the Hubbard, Ohio jobsite he was working on. Singleton determined that
Placeres was being paid the proper rate. Singleton explained that on this particular prevailing 15
wage job there was a supervisory wage and a labor wage and that there was a significant
difference between the rates. Singleton indicated that there were three employees on this jobsite
at the time that Placeres raised a question about his pay. Originally, Shawn Vaughn was the
supervisor on the job and Placeres was the laborer. When the Respondent assigned another
employee to the job, this employee had more seniority than Placeres and thus had to be paid the 20
higher rate, because the prevailing wage rate for this jobsite required a one-to-one ratio between
supervisors and laborers and if a third employee was assigned to the job they had to be paid the
higher rate. The supervisory rate on this job was approximately $23 an hour and the rate that
Placeres was being paid was $12.75 an hour. This was higher than Placeres’ regular wage rate of
$11 an hour.25
Since the jobsite that Placeres was working on was close to Singleton’s home, he went
there on his way home to speak to Placeres. When Singleton began explaining the different
wage rates on the job, Placeres said because he did not speak English well “we were taking
advantage of him” (Tr. 454). Singleton told Placeres that since he was on a prevailing wage job 30
and he was still paid more than his regular rate and that the Respondent did have a nonprevailing
wage job it was working on in East Liverpool, Ohio. Placeres then said the Respondent was
going to send him to the East Liverpool and he would not make a prevailing wage rate.8
Singleton repeated that Placeres was still making more than his regular rate on the job that he
was on and added that projects were slowing down and that there had been discussions of the 35
possibility of a layoff. According to Singleton, Placeres then said “now you’re telling me I’m
fired” and got in his car and left. Placeres failed to return to work at the Respondent.
Vaughn Junior testified that on April 13, 2010, Kovach had reported to him that Placeres
had complained about his paycheck. Vaughn Junior determined that there had been a 60 dollar 40
reduction in his pay because he had been erroneously overpaid by that amount. Vaughn Junior
told Singleton about this and Singleton said he would speak to Placeres about his wage rate on
this job.

7 All of Placeres’ discussions with individuals at the Respondent were conducted in English.
8 On February 19, 2009, Placeres quit his job at the Respondent because he did not want to spend his
own money for gas to drive to East Liverpool, Ohio, from his home. (R. Exh. 16.)
JD–77–11
9
On April 20, 2010, Placeres filed the charge in Case 8–CA–38901 and the complaint and
notice of hearing issued in that case on June 24, 2010. On September 28, 2010, Porter filed the
charge in Case 8–CA–39168. On November 23, 2010, an order consolidating cases and an
amended consolidated complaint issued in both cases alleging that the discharges of Placeres and
Porter violated Section 8(a)(3) and (1) of the Act.5
In March 2011, discussions were held between Placeres, Melanie Bordelois, counsel for
the Acting General Counsel, and John Ross, an attorney for the Respondent, regarding the
resolution of the charge filed by Placeres in Case 8–CA–38901. Pursuant to these discussions,
the Respondent reinstated Placeres in March 2011, prior to the negotiations being finalized and 10
the withdrawal of the charge being approved. In this connection, on March 24, 2011, Ross sent
Bordelois an email indicating that he understood that as a result of the discussions between the
parties, Placeers would be returned to work at the Respondent and that he would withdraw his
unfair labor practice charge. Ross indicated that he had not yet received the withdrawal of the
charge and asked Bordelois to advise him of the status of the matter. Bordelois replied the same 15
day by email (R. Exh. 19) as follows:
First, as I explained to you yesterday when we talked on the phone. Mr. Placeres
and I have been playing phone tag since mid-last week. Obviously, I cannot get
his withdrawal request if I don’t talk to him. Second, you are forgetting that Mr. 20
Placeres’ conditions of going back without backpay included (1) that he did not
have to sign anything (as Greg Hillier had told Mr. Placeres he would have to do
when he called Mr.Placeres to see about his interest in coming back to work) and
(2) that MWT would provide Mr. Placeres with a letter stating it would not
enforce any non-compete agreements that Mr. Placeres had signed in the past. 25
Again, without talking to Mr. Placeres, I cannot confirm that these conditions
have been met. Given the number of times he has left me messages, I would say
that (1) it is not his intent to avoid withdrawing the charge and (2) a lack of
communication is a function of the fact that he is now working during normal
business hours.30
Mr. Placeres is, I’m sure, very pleased to have begun work so quickly, however, I
would like to point out that it was your client’s decision when to put Mr. Placeres
back to work, and to do so before it received notice of withdrawal.
35
On April 8, 2011, Mary Jo Vaughn, the Respondent’s president, sent Placeres the
following letter (R. Exh. 17):
We wish to welcome you back to your employment with Mid-West Telephone
Service, Inc. Hopefully, any misunderstands [sic] between you and the Company 40
are behind us, and we will have a good relationship going forward.
This is to confirm that, as we agreed, you are not bound by any “non-competition”
or a “covenant not to compete” relating to your employment with MWTS.
45
This understanding and agreement is confidential and only between you and the
company and should not be disclosed to any third party.
JD–77–11
10
On July 11 2011, Bordelois sent an email to Ross indicating that Placeres had told her
that he was going to submit a withdrawal request (R. Exh. 18). On July 13, 2011, Placeres sent
the following letter to the Region (ALJ Exh. 1):
I, Wilfredo Placeres work for the Midwest Telephone Co. and I am writing in 5
order to inform you that I have decided to decline the amount of money asked by
the National Labor Relation Board. Instead, I am going to continue working
without any other compensation. Thank you.
On July 26, 2011, Placeres submitted a withdrawal request to the Regional Director in 10
Case 8–CA–38901. The Regional Director refused to approve the withdrawal of the charge. On
September 28, 2011, Placeres sent a second letter to the Region indicating the following (ALJ
Exh. 2):
I., Wilfredo Placeres, work for Midwest Telephone Service (MTS). I spoke to 15
Melanie Bordelois, and requested to discontinue the case against MTS. The
reason for this is because I’m very happy to once again work at MTS.
Unfortunately, as an American citizen, I feel compelled to participate in a trial of
which I no longer wish to be a part of and in a free country such as the United
States where I currently reside, I asked to waive all charges against MTS. 20
Honestly, I do not see where the country’s freedom is.
Analysis
In Independent Stave Co., 287 NLRB 740 (1987), the Board set forth the factors to be 25
considered in determining whether to give effect to a private non-Board settlement. The Board
indicated that all the surrounding circumstances should be considered including, but not limited
to, (1) whether the parties have agreed to be bound, and the position taken by the General
Counsel regarding the settlement; (2) whether the settlement is reasonable in light of the
violations alleged, the risks inherent in litigation and the stage of litigation; (3) whether there has 30
been any fraud, coercion, or duress by any party in reaching the settlement; and (4) whether the
respondent has a history of violations of the Act or has breached past settlement agreements. In
Independent Stave Co., the Board emphasized that there is an “important public interest in
encouraging the parties’ achievement of a mutually agreeable settlement without litigation.” 287
NLRB at 742.35
While there is no signed agreement between Placeres and the Respondent regarding
Placeres’ reinstatement, there is no question that both parties have agreed to be bound by their
agreement that Placeres be reinstated to his position; the noncompetition agreement he signed
would not be operative; that he would not receive any backpay and that, in exchange, Placeres 40
would submit a withdrawal of the charge in Case 8–CA–38901. In his brief, the Acting General
Counsel concedes that the parties have agreed to be bound and further agrees that there is no
evidence of fraud, coercion, or duress regarding the withdrawal.
With respect to the issue of whether Placeres was subject to any coercion regarding the 45
withdrawal, when it became clear at the hearing that the Respondent was asserting that the
withdrawal request served as a basis to dismiss the portion of the complaint relating to Placeres’
JD–77–11
11
alleged unlawful discharge and that Placeres persisted in his desire to withdraw the charge, I
questioned Placeres regarding the circumstances surrounding the submission of his withdrawal
request. Under oath, Placeres testified that he freely and voluntarily agreed to be reinstated
without backpay (Tr. 141–144). In this regard Placeres indicated that he dictated his letters to
the Region dated July 13, 2011, and September 28, 2011, in Spanish to his adult daughter and 5
that she then typed both letters in English for him to sign.
In his brief, the Acting General Counsel first contends that I should not approve Placeres’
withdrawal request because a union was not involved to advance his interest in arriving at the
settlement. There is no indication in the record, however, that Placeres had any lack of 10
understanding regarding what he was receiving in exchange for the withdrawal of his charge. In
Independent Stave, all of the charging parties were individuals and the union there appeared not
to have had an active role in the negotiation of the adjustment. I do not find that in the instant
case the lack of union representation serves as a basis to refuse to approve the withdrawal
request.15
The Acting General Counsel also contends that the settlement is unreasonable in light of
the nature of the violations alleged the risks inherent in the litigation of Placeres’ case and the
stage of the litigation. The Acting General Counsel argues that the serious nature of the alleged
8(a)(3) and (1) violation regarding Placeres and that the lack of backpay weighs against 20
approving the withdrawal. At the hearing counsel for the Acting General Counsel represented
that approximately $20,000 in backpay would be owed to Placeres if it was established that his
discharge was in violation of the Act. The Acting General Counsel contends that his chance of
success in establishing a violation is not so low as to justify a settlement without backpay. He
also contends that the withdrawal should not be approved because the private agreement between 25
the parties was not reached until approximately 10 months after the initial complaint had issued
in Placeres’ case and that other charges had been filed against the Respondent during this period
of time.
While the allegation that the Respondent violated Section 8(a)(3) and (1) in discharging 30
Placeres is indeed serious, in my view, a critical factor, and perhaps the most critical factor, in
deciding to settle a case are the risks inherent in litigation. Obviously, if it were ultimately
determined that Placeres was discharged in violation of the Act, he would be entitled to a full
remedy, including backpay. However, if it were ultimately determined that there was no
violation of the Act, Placeres conceivably would risk his present position at the Respondent since 35
he was reinstated pursuant to what the Respondent believed would be a resolution of the charge
regarding his alleged unlawful discharge.
The resolution of the question of whether Placeres was discharged in violation of the Act
depends upon which version of the salient facts surrounding his departure from the Respondent’s 40
employment on April 13, 2010, is credited. Placeres’ admission on both direct and cross-
examination that he may have misunderstood what Singleton said to him at the jobsite on April
13, 2010, greatly compromises the Acting General Counsel’s position that he was in fact
discharged and establishes that there is a significant risk to Placeres in reaching a decision on the
merits. If I do not credit Placeres’ version of this event, Singleton’s testimony establishes that 45
Placeres was not, in fact, discharged, but rather quit his employment after misunderstanding
Singleton’s explanation of his wage rate on the jobsite. Given this critical weakness in the Acting
JD–77–11
12
General Counsel’s case, Placeres’ reinstatement to his position, with the elimination of any prior
noncompetition agreement he signed previously, appears to be a reasonable adjustment in view
of the litigation risks that are present in this case. I note that in both American Pacific Concrete
Pipe Co., 290 NLRB 623 (1988), and BP Amoco Chemical-Chocolate-Bayou, 351 NLRB 614
(2007), the Board accepted a private resolution of a dispute between individuals and a 5
respondent over the General Counsel’s objection, finding the agreements reasonable in light of
the weakness of the General Counsel’s case.
I also do not agree with the Acting General Counsel’s argument that the stage of the
litigation weighs against approving the withdrawal. Rather, at this stage of the litigation there 10
was an opportunity to question Placeres under oath regarding all the circumstances surrounding
his withdrawal request and his testimony regarding the merits of the case has exposed a
weakness in the Acting General Counsel’s case.
Prior to this case there is no history of the Respondent violating the Act for failing to 15
comply with a settlement agreement. While I find, in this decision, that the Respondent has
violated the Act in certain respects, I do not believe that this is a sufficient basis to refuse to
approve Placeres’ withdrawal request regarding his alleged unlawful discharge. I will order an
appropriate remedy, including the posting of a notice, to ameliorate the effects of the violations
of the Act that the Respondent has engaged in.20
After evaluating all the circumstances, and after consideration of the principles expressed
in Independent Stave and the manner in which those principles have been applied in American
Pacific Concrete, supra, Hughes Christiansen Co., 317 NLRB 633 (1995),9 and BP Amoco,
supra, I approve the withdrawal of the portion of the charge that Placeres filed in Case 8–CA–25
38901 regarding his alleged discharge and dismiss the portion of paragraph 16 of the complaint
relating to Placeres.
I do not approve, however, Placeres’ attempt to withdraw the entire charge in Case 8–
CA–38901 because, as noted above, this charge supports the complaint allegation regarding the 30
threat that Mark Davis made to Porter in February 2011. I find that the portion of the charge
specifically alleging that the Respondent interfered with Section 7 rights involves a vindication
of rights under the Act beyond those primarily belonging to Placeres and that it is not appropriate
to permit a withdrawal of the entire charge under these circumstances.
35
Dustin Porter
Facts
Porter was hired by the Respondent in January 2010. As I found above, in February 40
2010, after learning of the conversation between Porter and other employees where the subject of

9 In Hughes Christiansen Co., the Board, applying the Independent Stave factors, approved a private
adjustment between three employees and the employer which was opposed by the General Counsel and
the union. The individuals had signed a waiver and release agreements in exchange for enhanced
severance payments
JD–77–11
13
the Union had been raised, Porter was threatened by Mark Davis that if he discussed the Union
again he would be fired.
Shortly after Placeres filed the charge in Case 8–CA–38901 on April 20, 2010, he
stopped by the jobsite that Porter was working on at a school in Warren, Ohio. Porter testified 5
that Placeres arrived during the lunch break and Porter approached Placeres as he sat in his
vehicle. Porter told Placeres that she had heard that Placeres had been fired. According to
Porter, Placeres told him that he had asked the Respondent about the Union and had been fired
and had then contacted the NLRB.10 As Porter turned to walk back into the building, he noticed
Andy Davis, Mark Davis’ son, standing in the doorway. Porter went into the breakroom where 10
he spoke briefly to Fannin and Williams. Porter told them that he had seen Placeres in the
parking lot and had spoken to him. According to Porter, as the three employees left the
breakroom, they noticed Andy Davis was standing just outside the door to the room.11
Fannin also testified regarding this incident. According to Fannin, when Porter came into 15
the building he and Porter walked down a hallway toward where Williams was working and
Porter relayed to Fannin the details of the conversation that he had with Placeres but when they
observed Andy Davis in the hallway, they stopped talking about Placeres. (Tr. 295–296.)
Williams testified that when Porter came inside the building, Porter told him that he had 20
been talking to Placeres. Williams told Porter to be careful because Andy Davis was there and it
could get back to Mark Davis that Porter was talking to Placeres (Tr. 217–218).
I credit the testimony of Williams and Porter on this point as it is for the most part
mutually corroborative. I do not credit Fannin’s version as it was not corroborated by Porter. 25
Even under Fannin’s version of this conversation, however, there is insufficient evidence to
establish that Andy Davis was in a position to overhear the details of their conversation.
The next day, April 29, Porter worked at the Jefferson school jobsite in Warren, Ohio.
Fannin and Williams were also working at this site. Around lunchtime, Fannin received a 30
message to call the Respondent’s office. When Fannin called, he spoke to Vaughn Junior who
instructed Fannin to send Porter to the office at 2:30 p.m. Vaughn Junior told Fannin that he was
going to fire Porter. When Fannin asked why, Vaughn Junior replied that Porter had walked off
the job the previous day. When Fannin explained this was not true; that Porter had informed
Williams he was sick, Vaughn Junior replied he would speak to Porter about it.35
When Porter arrived at the Respondent’s facility Vaughn Junior handed a document to
Porter (R. Exh.6) indicating the following:
On 4/28/2010 Mr. Dustin Porter left the job at 9:00 a.m. he did not notify the 40
foreman or the office that he was leaving.

10 Placeres testified that he visited the jobsite to see if an electrical company working at the site would
be interested in hiring him. According to Placeres, he asked Porter about one of the employees employed
by the electrical company but Porter did not know anything about him. Porter said he did not know that
Placeres had quit and was looking for work. (Tr. 103–104.)
11 Andy Davis did not testify at the hearing.
JD–77–11
14
The MWTS employee policies item:
Item 5
Anyone leaving the job site without authorization will be considered that you are
quitting.5
Item 3
4/20/2010-off-failure to call into office at designated time for work schedule.
10
Item 4
Excessive reporting off is grounds for dismissal.
2/9/2010-Late
3/11 2010-off sick
3/19/2010-went home sick15
3/20/2010-off sick
4/19 2010-off sick
4/28/2010-went home sick
Upon review I, George Vaughn, Vice-President have decided to terminate your20
employment for the reasons listed above
According to Porter, Vaughn Junior asked him if he knew what the document was, when
Porter replied “no,” Vaughn Junior informed him it was his termination paper. Porter asked
Vaughn Junior why he was being fired. Vaughn Junior pointed to the document and said that 25
Porter was not abiding by the rules regarding absences. Vaughn Junior stated that if Porter
wanted to work for the Respondent, he needed to abide by the rules and he could come back in
the future if he could follow those rules (Tr. 174). When Porter said he did not want to sign the
document as he did not agree with it, Vaughn Junior replied that he did not care as he could fire
him for anything, whether or not it was on “this paper” or not. Porter signed the document, 30
however, and then left the facility.
Mark Davis testified that he was the supervisor at the Jefferson school jobsite on April
28, 2010. According to Davis, he was working at the other end of the building from Porter.
When he arrived in the area where Porter was supposed to be working, Davis noticed that he was 35
not present. Davis asked Fannin where Porter was and Fannin replied that he had gone home
sick. Davis then called Vaughn Junior and informed him that Porter had left the jobsite without
notifying him. Davis testified that Porter’s absence slowed down the job on that day.
Vaughn Junior testified that Mark Davis called him on April 28, 2010, and informed him 40
that Porter had left the jobsite without telling him. Vaugh Junior also testified that it was not
acceptable for Porter to inform only Williams that he was leaving the jobsite. According to
Vaughn Junior, if an employee had to leave early from a jobsite, the employee had to inform
Mark Davis, Shawn Vaughn, or the office. After receiving the call from Davis, Vaughn Junior
reviewed Porter’s attendance record and decided to discharge him for the reasons given to Porter 45
in the document dated April 29, 2010 (R. Exh. 6) that he gave to Porter on that date. (Tr. 639.)
JD–77–11
15
Analysis
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), the Board established a framework for deciding cases turning on employer motivation 5
regarding an adverse employment action taken against an employee. To prove an employer’s
action is discriminatorily motivated and violative of the Act, the General Counsel must first
establish, by a preponderance of the evidence, an employee’s protected conduct was a motivating
factor in the employer’s decision. The elements commonly required to support such a showing
are union activity by the employee, employer knowledge of the activity and, at times, antiunion 10
animus on the part of the employer. If the General Counsel is able to establish a prima facie case
of discriminatory motivation, the burden of persuasion shifts “to the employer to demonstrate the
same action would have taken place even in the absence of the protected conduct.” Wright Line,
supra, at 1089. See also Ferguson Enterprises, Inc., 355 NLRB 189 (2010).
15
In the instant case, while Porter engaged in union and other protected concerted activity,
it was not extensive. In February 2010, he engaged in a general discussion of what union the
Respondent’s employees belonged to with some employees of the Respondent and those of an
insulation company. The only other protected activity Porter engaged in was his brief
conversation with Placeres after Placeres was no longer employed by the Respondent and had 20
filed his unfair labor practice charge.
I find that the Respondent, and particularly Vaughn Junior, had knowledge of Porter’s
involvement in the discussion about what union represented the Respondent’s employees. I find
that Mark Davis had knowledge of the conversation as I have determined that he threatened 25
Porter with termination if Porter spoke of the Union again. I do not credit Davis’ denial that he
did not tell Vaughn Junior that he had overheard or been advised that Porter was speaking about
the Union. In this portion of his testimony, Davis appeared to testify in a manner he felt would
support the Respondent’s defense.
30
Finding that the Respondent, and particularly Vaughn Junior, knew of Porter’s
conversation with Placeres is more problematic since there is no direct evidence that this
conversation was observed by a statutory supervisor. The Acting General Counsel contends that
since the uncontroverted testimony establishes that Andy Davis, Mark Davis’s son, was in a
position to observe Porter speak to Placeres and to overhear Porter’s report to Fannin and 35
Williams that he had spoken to Placeres, the knowledge of this event by the Respondent’s
supervisors should be inferred under the Board’s small plant doctrine.
The Board’s small plant doctrine provides that when employees carry out protected
activities at work and the employer has a small work force, an inference may be drawn that the 40
employer is aware of such activity. LaGloria Oil & Gas Co., 337 NLRB 1120, 1123 (2002),
affd. 71 Fed. Appx. 441 (5th Cir. 2003); D. & D. Distribution Co., 277 NLRB 909 (1985), enfd.
801 F.2d 636 (3d Cir. 1986); Wiese PlowWelding Co.,123 NLRB 616 (1959).
During the month of April 2010, the Respondent employed 11 unit employees. 45
Supervisors Shawn Vaughn and Mark Davis worked on various jobsites alongside these
employees. As set forth above, Porter told Fannin and Williams that he had spoken to Placeres
JD–77–11
16
and Andy Davis was in a position to observe Porter speak to Placeres and overhear Porter tell
Fannin and Williams that he had spoken to Placeres. I agree with the Acting General Counsel’s
argument that the likelihood that the Respondent’s supervisors, including Vaughn Junior, learned
of Porter’s conversation with Placeres is increased by the familial relationship between some of
Respondent’s supervisors and its employees. See Rice Lake Creamery Co., 151 NLRB 1113, 5
1139 fn. 67 (1965). There is further evidentiary support in this case to apply the small plant
doctrine. In this regard, at a meeting Vaughn Junior held with employees on January 28, 2011,
he acknowledged that because the company was small “everything that happens here sooner or
later comes back to me.” (GC Exh. 41, p. 10.) Accordingly, I find that the Respondent, and
specifically Vaughn Junior, learned that Porter spoke to Placeres after he had filed his charge on 10
April 20, 2010.12
With respect to whether the Respondent harbors animus toward its employees exercise of
union or other protected concerted rights, Davis’ threat to Porter in February 2010 establishes
that, while the Respondent was signatory to a union contract, it harbored antipathy to its 15
employees assertion of rights under the contract. I also note in this regard that at the meeting
held on January 28, 2011, Vaughn Junior told employees that his personal feeling was that he did
not like unions and never had, even though he had belonged to different unions in his career.
(GC Exh. 41, p. 11.)
20
In considering the Acting General Counsel’s prima facie case, I note that Porter’s union
activity was minimal and involved only speaking briefly about a Union that he knew little about.
He was certainly not a union activist. However, the timing of his discharge shortly after Vaughn
Junior became aware of the fact he had spoken to Placeres after Placeres had asked for
information about contacting the Union regarding his pay dispute and then filed a charge over his 25
alleged discharge from the Respondent, at least raises an inference that a discriminatory motive
may have motivated Porter’s discharge. In Toll Manufacturing Co., 341 NLRB 832, 833 (2004),
the Board noted that the timing of a discharge shortly after an employee had engaged in union
activities supported an inference that the discharge was discriminatorily motivated. On the basis
of the foregoing, I find that the Acting General Counsel has established a prima facie case under 30
Wright Line and the burden shifts to the Respondent to establish that it would have taken the
same action against Porter regardless of his union and protected concerted activities.
The Respondent contends that Porter’s poor attendance record during his brief
employment with the Respondent was the basis for his discharge but that the precipitating event 35
was his leaving the jobsite on April 28, 2010, without proper authorization. The Respondent’s
rule that was in existence on April 28, 2010, (R. Exh. 4) states clearly:

12 To the extent that Porter’s version of the conversation conflicts with that of Placeres, I credit Porter
because his recollection of the conversation appeared to more distinct. However, I am only willing to
infer that Vaughn Junior knew that Porter spoke to Placeres but not that he knew the substance of this
conversation. There is no evidence that Andy Davis was in a position to hear what Placeres and Porter
spoke about since he was some distance away from the conversation. In addition, Porter did not relate the
substance of his conversation to Williams and Fannin, but merely said he had spoken Placeres.
JD–77–11
17
5. Anyone leaving the job site without authorization will be considered that you
are quitting!!! (Emphasis in the original)
The issue of what the Respondent considers to be appropriate “authorization” is not as
clear. Mark Davis testified that employees are supposed to inform him or Vaughn Junior if it is 5
necessary for them to leave a jobsite. Davis testified he believed that such a requirement is set
forth in the Respondent’s policies but that he had never personally advised any employees
regarding what he or she needed to do to obtain authorization (Tr. 423–424). Vaughn Junior
testified initially that before an employee could leave the jobsite he or she needed to notify Mark
Davis, Shawn Vaughn, or call the office (Tr. 424). He later testified, however, that the employer 10
would have to notify “the person on-in control of the job” (Tr. 717).
While item 5 of the Respondent’s rules set forth above indicates an employee cannot
leave the jobsite without authorization, it does not specifically indicate from whom such
authorization must be obtained. It is clear that Porter spoke to Williams before he left the job 15
site but did not contact Davis or the Respondent’s office. There is no contention by either party
that anyone acting as a foreman for the Respondent is a statutory supervisor and the record
clearly establishes that such individuals are employees within the meaning of the Act.
Nonetheless, both parties spend a significant amount of time at the hearing litigating the issue of
whether Williams was a foreman at the time he gave permission to Porter to leave the jobsite.20
Williams, Fannin, and Porter all testified that Williams was the foreman at the Jefferson
school jobsite when Porter left that job on April 28, 2010, Williams testified in late February or
March 2010, he was told by Mark Davis that he was “in charge of the job site.” According to
Williams, this occurred after the previous employee who had been acting in such a capacity, 25
Travis Davis, had been discharged. (Tr. 211.) At the time of this conversation with Davis,
Williams was a wire puller earning $9 an hour and he continued to be paid at that rate on that
job. He was never paid at the higher foreman wage rate. Williams was never told that he had the
authority to let an employee leave a jobsite (Tr. 248). Williams also acknowledged that he was
aware that if he had an issue with an employee on a jobsite, he was to contact Mark Davis and let 30
him know (Tr. 253–254).
Mark Davis denied that he informed Williams that he was the foreman at the Jefferson
school job. Vaughn Junior also denied that Williams had held the position of foreman on the job
both Vaughn Junior and Davis testified that Williams did not have sufficient experience and 35
lacked the certifications necessary to be considered a foreman.
Current Respondent employee Joseph Caicco also testified regarding the authority of
Williams at the Jefferson school jobsite. Caicco referred to Williams’ position on that job as a
foreman “in training” (Tr. 271). Caicco testified that Mark Davis was in charge of the job but 40
that Williams was “running” the job when Davis was not present (Tr. 274). Caicco testified that
when Mark Davis was present, he would assign various tasks to employees. When Davis was
not present, Caicco would observe Williams on the phone and then Williams would inform
JD–77–11
18
employees of their assignments (Tr. 276–277).13 Caicco testified that Williams was “green” and
was not very knowledgeable about certain aspects of the job, but that he was learning.
As a current employee who was subpoenaed by the General Counsel and testified in a
manner adverse to the Respondent’s position, Caicco had no incentive to be untruthful. The 5
Board has long recognized that the testimony of such an employee is unlikely to be false.
Bloomington-Normal Seating Co., 339 NLRB 191, 193 (2003). See also Flexisteel Industries,
316 NLRB 745 (1995); Federal Stainless Sink Division, 197 NLRB 489, 491 (1972).
Accordingly, I credit Caicco’s testimony over that of Mark Davis and Vaughn Junior regarding
the authority that Williams possessed on the Jefferson school jobsite. Both Mark Davis and 10
Vaughn Junior appeared to testify in a manner that would diminish any authority that Williams
had on that job in order to support the Respondent’s position. It is for that reason that I also
credit Williams’ testimony that Davis told him in late February or early March 2010, that he was
“in charge of the job.”
15
I find, based on the record as a whole, that Williams had the authority to relay
instructions to employees at the Jefferson school jobsite but that his authority was limited to that.
The record does not support the conclusion that Williams possessed the power to “authorize”
Porter to leave the jobsite on April 28, 2010. After Porter had left the jobsite, Williams did not
call the office to inform Vaughn Junior that Porter had left, claiming it was not his responsibility 20
to do so (Tr. 249). This is hardly indicative of the sense of responsibility he would have if he
was truly responsible for the jobsite. As noted above, Porter did not call the office and inform
Kovach that he left the site until after 3 p.m. when his shift had ended. Thus, no notice was
given to any of the Respondent’s supervisors that Porter had left the job until Davis returned to
the area where Porter was working and, by chance, discovered that he had left.25
After considering all of the circumstances, I conclude that the Respondent acted
reasonably in deciding Porter left the Jefferson school jobsite without obtaining appropriate
authorization. Importantly, in this regard there is no evidence that prior to April 28, 2010, an
employee had left the jobsite without notifying an acknowledged supervisor. Previously, when 30
Porter had left a jobsite because of illness he notified Mark Davis. The only other record
evidence regarding this issue is Williams’ testimony that in approximately January 2010, an
employee had to leave a jobsite because of a personal matter and notified Shawn Vaughan before
leaving (Tr. 249). Shawn Vaughn is, of course, an admitted supervisor.
35
Vaughn Junior indicated that while Porter’s conduct on April 28, 2010, was the
precipitating event for his discharge, he considered Porter’s prior attendance record in deciding
to terminate him. This is consistent with the document Vaughn Junior gave Porter when he
informed him that he was terminated. Porter was a probationary employee who had been hired
on January 4, 2010. As I have found above, on April 28, 2010, Porter left the Jefferson school 40
jobsite because of illness without receiving proper authorization. Prior to that he had been late
once, had missed 3 days because of illness, and left work because of illness on another occasion.

13 While Caicco did not know who Porter spoke to before relaying assignments, I draw the reasonable
inference that it was Mark Davis.
JD–77–11
19
Before terminating Porter, the Respondent had disciplined other employees for
attendance issues. On October 24, 2008, employee Dave Smith was placed on probation for
being late to work on three occasions (R. Exhibit 25). On January 9, 2010, a long-term
employee, Greg Hillier, was given a final warning and placed on a 60--day probation period for
failing to report to work on a single day (R. Exh.27). Most importantly, on November 13, 2009,5
the Respondent terminated Travis Davis, Mark Davis’s son, for excessive absenteeism. Davis
was hired on October 19, 2009, and before the date of his termination had been absent 3 days and
then left early on one occasion (R. Exh. 26). Importantly, the Acting General Counsel has
produced no evidence to establish that Porter was treated disparately from any other employee
who engaged in conduct similar to his. On the other hand, the Respondent discharged Travis 10
Davis, the son of one of its supervisors, for a similarly poor attendance record. I have also
considered that when Vaughn Junior discharged Porter he told him that he had violated the
Respondent’s attendance rules; but that if, in the future, he could abide by those rules, he was
welcome to return. I believe that such an offer of reemployment under those conditions is
further support for my conclusion that the Respondent’s decision was based on legitimate 15
business related concerns rather than discriminatory motivation.
In Septix Waste, Inc., 346 NLRB 494 (2006), the Board indicated that in order to
establish a valid Wright Line defense, an employer must establish that it has applied its
disciplinary rules regarding the conduct at issue consistently and evenly. I find that the 20
Respondent has met this burden with respect to the application of its disciplinary rules regarding
Porter’s conduct. Under the shifting burden analysis of Wright Line, the General Counsel must
establish an unfair labor practice by a preponderous of the evidence. Wright Line, supra at 1088,
fn.11. I find this burden has not been met with respect to the discharge of Porter. Accordingly, I
conclude that the Respondent did not violate Section 8(a)(3) and (1) with respect to Porter’s 25
discharge and I shall dismiss that allegation in the complaint.
The Allegations of Discrimination Regarding Fannin and Related Alleged 8(a)(1)
Conduct at the January 28, 2011 Meeting
30
In the complaint the Acting General Counsel alleges that the Respondent violated Section
8(a)(4), (3), and (1) of the Act by requiring Fannin to drive his own vehicle to jobsites after his
recall on January 18, 2011, and by discharging him on March 10, 2011.
The complaint also alleges that on January 28, 2011, the Respondent, by Vaughn Junior 35
violated Section 8(a)(1) by threatening an employee with unspecified adverse action and by
coercively soliciting employees to form an in-house union. Finally, the complaint alleges that on
January 28, 2011, the Respondent, through Mark Davis, engaged in unlawful surveillance of
employees’ union activities.
40
Facts
Fannin was hired as a wire puller by the Respondent in August 2009. He became a
member of the Union in June 2010. On September 7, 2010, Fannin was laid off along with
several others of the Respondent’s employees. The day after his layoff, however, Vaughn Junior 45
hired Fannin to do carpentry work at the Respondent’s office. He performed such carpentry
work until the beginning of October 2010.
JD–77–11
20
On September 21, 2010, Fannin, Caicco, and Williams went to a general meeting held by
CWA, Local 4300 in Canfield, Ohio. At the meeting, the three employees raised several issues
with Union President Richard Schrader, including the fact that employees were not given
information about the Union; that employees worked more than 30 days without being asked to
join the Union; and that employees were terminated without representation.145
After the meeting, Fannin and Schrader communicated with each other through phone
calls and email through December 2010, regarding employment issues at the Respondent.
According to Fannin’s uncontroverted testimony, he and Schrader discussed the issue of the
September 2010 layoffs. Fannin volunteered to obtain information from contractors about the 10
various jobs that the Respondent had been working on at the time the employees had been laid
off. While Fannin was not able to find out much information from the contractors that he called,
he passed on whatever information he had to Schrader. Fannin also communicated with
Schrader about whether the Respondent’s employees had been paid the proper wage rate on
various prevailing wage jobs. In addition, November 2010, Fannin complained to Schrader that 15
the Union steward, Gregg Hillier, had close ties to the Vaughn family. The Union removed
Hillier as steward after this concern was raised.
On January 5, 2011, Fannin filed a charge in Case 8–CA–39297 (GC Exh. 1(o)) claiming
that the Respondent was refusing to recall him from layoff in violation of Section 8(a)(3) and (1).20
On approximately January 18, 2011, Fannin was recalled from layoff to work as a wire
puller 3 days a week. On direct examination Fannin testified that Jan Kovach informed him of
his recall and also told him that he would have to drive his own vehicle to the jobsite rather than
coming to the facility to get a ride in one of the Respondent’s trucks. When Fannin asked 25
Kovach what the reason was, she replied that “they’re full or something, I don’t know.” (Tr.
370). On cross-examination, however, when asked if Kovach had indicated a truck was
available, Fannin testified as follows (Tr. 392–393):
A. No. She told me George had instructed her to let me know I didn’t need to 30
bother coming to the shop, to go ahead and drive my own vehicle.
Q. And did she say ever, or on that day?
A. From that point on.
Q. Is that what you understood her to say or is that what she said?
A. That’s what I understood her to say.35
Q. Okay
A. I don’t recall the exact words.
Q. Okay. So it’s—you don’t recall the exact words that she said?
A. Verbatim, no.
40
Fannin testified that prior to his layoff he would often drive to the Respondent’s facility
and then go to the jobsite with other employees in the company truck. He would drive his own

14 Vaughn Junior admitted that he knew Fannin attended a union meeting in the fall of 2010.
According to Vaughn Junior, Schrader called him and said that Fannin was coming to a union meeting
and asked Vaughn Junior about him. Vaughn Junior testified that he told Schrader that Fannin was a
“pretty good guy.” (Tr. 685–686.)
JD–77–11
21
vehicle, however, when the distance from his home to the jobsite were shorter than the drive to
the shop. After his recall on January 18, 2011, until his discharge in March 2011, Fannin drove
his own vehicle to jobsites, except on two occasions when he rode with Shawn Vaughn in one of
the Respondent’s trucks.
5
Fannin testified that after his recall he asked Shawn Vaughan why he was told by Kovach
to drive his own vehicle and Vaughn replied he did not know. Fannin testified that after his
recall he was the only one of Respondent’s employees who had to drive his own vehicle to
jobsites, except for Williams who worked half days during this period. Fannin also asked Brian
Singleton about this issue but Singleton shrugged and walked away. Fannin never spoke to 10
Vaughn Junior about getting more frequent rides in the Respondent’s trucks.
The testimony of Placeres conflicts with that of Fannin regarding the use of company
vehicles. Placeres testified that after his reinstatement to the Respondent in March 2011, he
sometimes drove his own vehicle to the jobsite in Ashtabula and at times rode in a company 15
vehicle (Tr. 107). It appears that employees had been driving their own vehicles to worksites for
some period of time since in 2009 Placeres quit his employment because of the expense of gas
money in driving to a jobsite in East Liverpool, Ohio (R. Exh. 16). I also note that the two
versions of the Respondent’s work rules in effect after Fannin’s recall on January 18, 2011,
provide that “Employees must be able to provide their own transportation to and from the 20
jobsite.” (R Exhs. 4 and 7.)
I do not credit Fannin’s testimony that he was the only employee who regularly had to
drive his own vehicle to jobsites after his reinstatement in January 2011. In the first instance,
Fannin himself was given rides in the company truck on two occasions. I also find that Placeres’25
testimony that he drove his own vehicle to jobsites in Ashtabula in 2011 is credible as he had no
motive to be untruthful regarding this issue. Accordingly, I find that both before and after
Fannin’s recall in January 2011, employees drove their own vehicles to jobsites in the regular
course of the Respondent’s business.
30
Approximately a week after Fannin’s recall on January 18, 2011, Williams informed
Fannin that the employees were going to have a meeting on January 28, 2011, at the
Respondent’s facility to discuss union representation. When Fannin arrived at the Respondent’s
facility that day he turned on the recorder of his cell phone in order to record the meeting.15
Before going into the meeting, which was held in the area of the Respondent’s facility referred to 35
as the “shop” Vaughn Junior spoke to Fannin and the following exchange was recorded:
Vaughn Jr.: Should have done this the other day, shook my hand.
Fannin: You didn’t talk to me just looked at me nothing.
Vaughn Jr: Yeah, I look at you man you better be worth it man.40
Fannin: I’m always worth it.
Vaughn Jr.: I know, I like that. Believe it or not here is the way it works, you
screw me I screw you, that’s life.
Fannin: How did I screw you?

15 The recording of the meeting was authenticated at the trial and introduced into evidence as GC Exh.
40. A transcript of this recording was also admitted into evidence at the hearing as GC Exh. 41.
JD–77–11
22
Vaughn Jr.: You didn’t finish my door.
Fannin: What door?
Vaughn Jr.: You didn’t finish the trim.
Fannin: What trim.
Vaughn Jr.: The one on the inside. Let me show you something else while I 5
got you, while I’m talking to you. I want you to look at something. When you
get a chance you can just smash it down. Everybody keeps getting cut on that.
Fannin: On the pull?
Vaughn Jr.: Yeah.
Fannin: Oh.10
Vaughn Jr: Think about that. My daughter got up one day she had a big
scratch down her leg and I went wholly shit oh yeah that’s a little strange isn’t
it? Think about that for me. K
Fannin: Un huh.
Vaughn Jr.: You work hard man that’s all you need to do work hard.15
Fannin: I do work hard.
Fannin went into the shop area where the other employees had assembled. The work
cubicles of Shawn Vaughn and Mark Davis are located in this area and both were present during
the meeting. Hillier began the meeting by stating that the employees were going to decide 20
whether to have an independent union like the employees at another employer, Enertech, and to
decide who the union officers would be (GC Exh. 41, p. 2). During the discussion that ensued,
Fannin stated that it was the employee’s choice to be their own union or go with another union.
Caicco indicated that they could go with another union and that the “AFL–CIO would probably
be interested in representing us.” (GC Exh. 41, p. 3.) Caicco said that they would have to 25
contact some of those unions but with nobody from management present at the meeting they
could not make those decisions. Fannin replied that management has nothing to do with the
union and that they should not even be talking about the union “in this building” (GC Exh. 41, p.
3). Later in the meeting, Fannin indicated that it sounded to him that it would take a lot of legal
work in order for the employees to establish their own union. He indicated that he would feel 30
better with an established union (GC Exh. 41, p. 6). Fannin volunteered to do more research on
the matter and make phone calls to some unions and notify the other employees of what he had
found out (GC Ex. 41, p. 7).
Vaughn Junior then entered the meeting and informed the employees that their collective-35
bargaining agreement between the Respondent and the Union was no longer in effect and that the
employees were no longer represented by the Union (GC Ex. 41, p. 9). Vaughn Junior indicated
that he knew the employees were discussing forming an independent union.16 He spoke in favor
of such a union stating that the employees would be able to control their own dues money (GC
Ex. 41, p. 10). He also indicated he would give the employees a list of labor attorneys that they 40
could contact regarding their efforts to form their own union.

16 Prior this meeting Hillier had told Vaughn Junior that the employees “were shopping around for
another union, or becoming our own union” (Tr. 525). Hillier told Vaughn Junior that he had spoken to
employees at Intertech about how to go about forming their own union.
JD–77–11
23
During the meeting, Vaughn Senior asked “Why can’t we get into John’s union.” Hillier
responded that he already “talked to them” and they didn’t want anyone else in their union.17
Vaughn Junior joined in to say that he had talked to “Mark” who was the “president” about the
Respondent’s employees joining the independent union but that the independent union felt it
would be too complicated. (GC Exh. 41, p. 13).5
After the January 28, 2011 meeting Fannin began contacting various unions including the
IBEW. Fannin kept Caicco and Hillier apprised of the efforts he was making in this regard. An
IBEW representative contacted Fannin and they agreed that Fannin would set up a meeting so
that the employees could meet with him.10
Fannin testified that on Monday, March 7, 2011, he was working at a school in
Ashtabula, Ohio, where the Respondent was a subcontractor of Intertech. (Tr. 355–356.)
According to Fannin, he was present when Greg Hillier, who was the foreman on the job, spoke
to an individual named Mark (last name unknown), who Fannin knew to be the “head foreman”15
of Intertech about the Respondent’s employees spending more time on the jobsite (Tr. 357).
Former employee Greg Hillier testified for the Respondent pursuant to a subpoena.
Hillier testified that he was on the jobsite in March 2011,18 with Fannin, when an individual from
an electrical contractor said that the Respondent needed to work more hours at the site. At the 20
time the Respondent was only working 4 days a week at this jobsite. According to Hillier,
Fannin laughed and said that he was lucky if he got 3 days a week. When the other individual
asked why, Fannin said his brother (Porter) had “sued George, so George is fucking him.”
Hillier testified that Fannin then said that “ George could go fuck himself, and he said you can
tell him, I don’t care, and you can tell him that I said it. (Tr. 491.)1925
When called as an adverse witness by counsel for the Acting General Counsel pursuant to
rule 611(c) of the Federal rules of evidence, Vaughn Junior testified that a couple of days before
he discharged Fannin on March 10, 2011, Hillier called him in the evening and reported that
Fannin had made “accusations” against Vaughn Junior and said that he could go fuck himself 30
(Tr. 68). On direct examination, Vaughn Junior testified that Hillier called him and told him that
at the jobsite in Ashtabula ,while an employee from Intertech Electric was present, Fannin had
said that his brother had a lawsuit against Vaughn Junior; that Vaughn Junior was “screwing
him” and that Fannin did not care if Hillier told Vaughn Junior that he could go “fuck himself.”
(Tr. 676–677.)35
I credit the portion of Fannin’s testimony that the conversation between himself, Hillier,
and the Intertech foreman occurred on Monday, March 7, 2011. As I will set forth in detail,
Fannin recalled with specificity the various events and the dates they occurred on during the
week he was fired. In addition, when called as an adverse witness, Vaughn Junior admitted that 40
he was notified by Hillier of what Fannin had said “a couple of days” before he was fired. On
direct examination, Vaughn Junior testified otherwise, claiming that he was not notified until the

17 Hillier testified that he had spoken with employees of a contractor on a jobsite that had an
independent union in order to get information.
18 Hillier could not recall with further specificity when this conversation occurred.
19 Fannin denied that he made such a statement during this conversation.
JD–77–11
24
day before Fannin was discharged. I find his 611(c) testimony to be more credible as it is
consistent with Fannin’s recollection. I find Vaughn Junior’s direct testimony to be an attempt to
strengthen the Respondent’s defense, after realizing his earlier testimony could be problematic.
As noted above, Hillier could not recall the exact date this conversation occurred. I credit 5
Hillier, however, with respect to the substance of what Fannin said when the Intertech foreman
was present. I doubt that Hillier, who was no longer employed by the Respondent at the time of
the hearing, would fabricate such testimony. I find it more plausible that Fannin would make
such a statement. Fannin’s brother, Porter, had filed an unfair labor practice charge against the
Respondent. Fannin himself had filed an unfair labor practice charge against the Respondent and 10
was clearly not happy with the number of hours that he was being assigned. Under these
circumstances, I believe he made such a statement out of frustration with the Respondent’s
actions. Accordingly, I find that on March 7, 2011, Fannin told Hillier and an employee from
Intertech that Vaughn Junior was fucking him and that Vaughn Junior could go fuck himself and
that Hillier reported that statement to Vaughn Junior on the evening of March 7, 2011.15
Fannin testified that on the morning of Wednesday, March 9, he was working at the
Ashtabula, Ohio jobsite when Vaughn Junior arrived. They said hello to each other and later, at
the lunch break, Vaughn Junior spoke to Fannin and the other employees about football and
other general matters (Tr. 359).2020
According to Fannin’s uncontradicted testimony, at the end of the workday on March 9,
he told Caicco and Hillier that the IBEW representative wanted to meet with the Respondent’s
employees on Friday, March 11. Both Caicco and Hillier stated that they recalled that during the
meeting on January 28, Vaughn Junior had said they did not want the employees to join the 25
IBEW. While Fannin did not recall Vaughn Junior saying that, Fannin stated that “it’s not
George’s choice” and that if Vaughn Junior did not want the IBEW, it made him want to join it
even more (Tr. 361). Hillier and Caicco finally both agreed that Fannin could tell the IBEW
representative that they and the other employees would meet with him on Friday, March 11.
30
At the jobsite on the morning of March 10, 2011, Hillier informed Fannin that Vaughn
Junior had instructed him to send Fannin home but did not tell him why. Fannin left the jobsite
and when he arrived home he called Shawn Vaughn and told him what happened. Shawn
Vaughn said he would try and find out something.
35
In the afternoon Fannin called the Respondent’s office and left a voice mail for Vaughn
Junior. Vaughn Junior called Fannin and told him that his services were no longer needed.
When Fannin asked what for, Vaughn replied by saying “you know” (Tr. 361). When Fannin
said he did not know, Vaughn Junior said “insubordination” and hung up (Tr. 366–367).21

20 Vaughn Junior admitted he was at the jobsite on March 9, and that he spoke to Fannin and Caicco
about football and public employee bargaining (Tr. 67).
21 Vaughn Junior testified that when he spoke to Fannin on the phone, he asked him what happened
on the jobsite when Fannin said that Vaughn Junior could go fuck himself. Fannin said he did not know
what Vaughn Junior meant. At that point, Vaughn told Fannin he was terminated for insubordination. To
the extent that the testimony of Fannin and Vaughn Junior conflicts, I credit Fannin as I found his
demeanor to be more convincing and his account to be more plausible based on the record as a whole. I
JD–77–11
25
According to Fannin, 2 days later Shawn Vaughn called Fannin and began the
conversation by telling Fannin that he was “getting fucked.” Shawn Vaughn told Fannin that he
learned that Hillier had told Vaughn Junior that Fannin was “bad mouthing” him the previous
Monday.22
5
Analysis
The Alleged 8(a)(1) Violations Occurring on January 28, 2011
Paragraph 12 of the complaint alleges that on January 28, 2011, the Respondent, by 10
Vaughn Junior, threatened employees with unspecified adverse action in violation of Section
8(a)(1). In support of this allegation, the Acting General Counsel relies on the statement made
by Vaughn Junior to Fannin as he walked into the meeting on January 28, 2011, that “you screw
me, I screw you.” The Acting General Counsel contends that this statement is a threat of reprisal
in response to the union and protected concerted activity that Fannin had engaged in and the fact 15
that he had filed an unfair labor charge in Case 8–CA–39297 on January 5, 2011. The
Respondent contends that the statement was made only in reference to Vaughn Junior’s
perception that Fannin did not correctly perform the carpentry work assigned to him. I find that
it is clear from Fannin’s recording and the portion of the transcript of that recording or set forth
above, that Vaughn Junior’s statement was in reference to the carpentry work that Fannin had 20
performed for him. In context, the statement reflects Vaughn Junior’s dissatisfaction with some
of the work that Fannin had performed. I find it was not a threat made in response to the union
and protected concerted activity that Fannin had engaged in or the filing of his unfair labor
practice charge. Accordingly, I shall dismiss paragraph 12 of the complaint.
25
Paragraph 13 of the complaint alleges that on January 28, 2011, the Respondent, by Mark
Davis, engaged in unlawful surveillance of employees’ union and/or concerted activities. The
meeting was apparently arranged by Hillier since he conducted it. While the record indicates
that Vaughn Junior was aware of the meeting there is no evidence to establish that he was
involved in the specifics of arranging it. Mark Davis has a cubicle in the shop area where his 30
desk and computer are located. Shawn Vaughn and Singleton also have cubicles in this area.
The record establishes that Shawn Vaughn was also present during the employee meeting.
While the complaint does not allege that Shawn Vaughn’s attendance at the meeting was
unlawful, the analysis that I apply regarding the presence of Davis at the meeting is equally
applicable to that of Shawn Vaughn. For the reasons expressed herein, I find that the 35
Respondent did not violate Section 8(a)(1) by the attendance of Davis and Shawn Vaughn at this
meeting.
It is undisputed that Davis and Shawn Vaughn were present during the meeting held by
the employees. According to Davis’ testimony he was working at his desk when the employees 40

also note, however, that even under Vaughn Junior’s version the termination was performed abruptly.
22 I do not credit Shawn Vaughn’s testimony that he never spoke with Fannin about his termination.
This seems highly implausible since they had been friends for approximately 10 years and socialized
outside of work.
JD–77–11
26
began to arrive in the area.23 Davis was not informed the meeting was going to be held and no
one asked him or Shawn Vaughn to leave.
In Hoschton Garments Co., 279 NLRB 565, 567 (1986), the Board held that “union
representatives and employees who choose to engage openly in their union activities at an 5
employers premises should have no cause to complain that management observes them.”
Accord: Sunshine Piping, Inc., 350 NLRB 1186, 1194 (2007). In the instant case the employees
chose to conduct their meeting in an area of the Respondent’s facility where Mark Davis and
Shawn Vaughn have had their desks during a time that they were engaged in their normal duties.
The fact that Davis and Shawn Vaughn were in a position to observe the meeting is not an unfair 10
labor practice under these conditions.
The Acting General Counsel correctly notes that the Board has held that an employer
violates Section 8(a)(1) when one of its supervisors observes employees union activity conducted
in a public place if the supervisor’s purpose for being at the location is to observe the meeting. 15
Aero Corp., 233 NLRB 41, 45 (1977), enfd. 581 F.2d 511 (5th Cir. 1978). I do not agree with
the Acting General Counsel’s argument, however, that the record establishes that Davis’ purpose
for being present at the location was to observe the meeting. There is no evidence to establish
that Shawn Vaughn or Davis attended this meeting in order to specifically observe the union
activity of employees. Rather, they were in their normal work areas performing regular duties 20
when the meeting began. Accordingly, I shall dismiss paragraph 13 of the complaint.
Paragraph 14 of the complaint alleges that on January 28, 2011, the Respondent, by
Vaughn Junior, coercively solicited employees to form an in-house union. After he entered the
meeting held by the employees on January 28, 2011, Vaughn Junior made several statements 25
regarding what he perceived to be the benefits of having in-house union. He stressed that if they
formed an in-house union employees could keep their own dues money, knowing that the
employees had expressed concerns about the dues money that they had given to the CWA, Local
4300 which they had viewed as being an ineffectual union. He indicated that he would give the
employees a list of attorneys that would assist them in establishing their own union. He also 30
revealed that he had previous discussions with the president of another in-house union regarding
the possibility of his employees joining it.
Whether an employee belongs to a union and, if so, which union, is a choice that belongs
to employees and the employer has no role in it. In the instant case the Respondent, through 35
Vaughn Junior, indicated that the employees would be better off with an in-house union. He
indicated he had discussed having his employees joining another in-house union and he also
offered to give employees a list of attorneys that would help them establish their own union.
Such conduct interferes with employees Section 7 rights to freely choose union representation as
it strongly suggests that the Respondent would look favorably only upon the choice of an in-40
house union. The Respondent’s actions in this regard violated Section 8(a)(1) of the Act. See
Gregory Chevrolet, Inc., 258 NLRB 233, 237 (1981); M. O’Neil Co., 211 NLRB 150, 157–158
(1974), enfd 514 F.2d 894 (D.C. Cir. 1975).

23 While the unit employees were not scheduled to work that day, Davis is a supervisor and there is no
evidence to controvert his testimony that he was working that day.
JD–77–11
27
The Alleged Discrimination Regarding Fannin
The complaint alleges that the Respondent violated Section 8(a)(4), (3), and (1) when
Fannin was required to drive his own vehicle to jobsites after his recall on January 18, 2011.
5
In Wright Line, supra at 1083, the Board indicated that in cases involving alleged
violations of Section 8(a)(3) it must be determined whether an employee’s employment
conditions were adversely affected. In the instant case, there is a question as to whether the
Respondent engaged in an adverse action with respect to Fannin driving his own vehicle to
jobsites, rather than riding in a company vehicle. Fannin testified that when Kovach called him 10
to inform him that he had been recalled as a wire puller, she told him that he should drive his
own vehicle because the truck company trucks were full. On cross-examination, however,
Fannin testified that he “understood” Kovach to say that Vaughn Junior had instructed her to tell
him to drive his own vehicle from that point on. Fannin admitted, however that he could not
recall exactly what Kovach told him. The record is clear that Vaughn Junior is the moving force 15
with respect to the Respondent’s operations and Fannin never spoke to him in order to clarify the
Respondent’s position. Fannin, however, did ask both Shawn Vaughn and Singleton about why
he could not ride in a company truck without getting a response from either.24 There is some
doubt as to whether the Respondent actually took an adverse employment action against Fannin
in this matter given the equivocal nature of Fannin’s testimony about his initial conversation with 20
Kovach. However, I find that the lack of a response from either Shawn Vaughn or Singleton
when Fannin specifically asked about being allowed to ride in a company truck, establishes that
the Respondent had apparently placed some limits on Fannin’s riding in a company truck to
jobsites sufficient to justify an analysis under Wright Line.
25
Applying a Wright Line analysis, I find that Fannin had attended a CWA meeting in
September 2008, and that Respondent was aware of that fact, as Vaughn Junior admitted the
Union had so informed him. Because of the attendance of Mark Davis and Shawn Vaughn at the
January 28, 2011 meeting the Respondent also knew of Fannin’s interest in having an existing
union represent them, rather than forming an in-house union, and that he indicated he would 30
begin to contact unions in order to obtain additional information. Fannin had also filed an unfair
labor practice charge against the Respondent on January 5, 2011. Since the complaint allegation
encompasses the time period from January 18, 2011, until Fannin’s termination on April 10,
2011, is appropriate to consider the animus against employees’ union activities demonstrated by
Davis’ February 2011 threat to Porter and Vaughn Junior’s attempt to restrict his employee’s35
selection of the union to an in-house union on January 28, 2011. Accordingly, based on the
foregoing, I find that the Acting General Counsel has established a prima facie case under Wright
Line.
An examination of the Respondent’s defense under Wright Line reveals that Fannin was 40
clearly not the only employee who drove his own vehicle to jobsites from January 18, 2011 to
March 10, 2011. Prior to his January 2011 recall Fannin drove his own vehicle to jobsites rather

24 Singleton denied that Fannin had asked him why he could not ride in a company truck. I credit
Fannin on this point. This appeared to be a matter of sufficient importance to Fannin to ask Singleton
about it. To Singleton it appeared to be a minor matter and thus I find it to be something he would not
necessarily remember. Shawn Vaughn did not testify regarding this issue.
JD–77–11
28
than getting a ride in a company truck on some occasions. After his January 2011 recall he was
given a ride in a company truck on two occasions. Williams and Placeres also drove their own
vehicles to and from jobsites. In addition, Singleton credibly testified that other employees,
including Allison Tucci and George Vaughn Senior drove to jobsites in their own vehicles.25
Moreover, the Respondent had a clearly stated policy in effect indicating that employees had to 5
be able to provide their own transportation to and from jobsites. Accordingly, I find that the
Respondent has produced sufficient evidence to establish that it applied its policy regarding
employee transportation to jobsites on a consistent basis. There is no credible evidence to
establish that Fannin was treated disparately from any other employee regarding this matter.
Accordingly, I shall dismiss this allegation in the complaint.10
Fannin’s Discharge
Paragraph 15 of the complaint also alleges that on or about March 10, 2011, the
Respondent terminated Fannin in violation of Section 8(a)(4), (3), and (1). With respect to the 15
Acting General Counsel’s prima facie case under Wright Line, in addition to the factors that I
have considered in the preceding section, there are additional important factos that are applicable
to the analysis of his discharge. On March 9, 2011, Fannin spoke to Hillier and Caicco about the
meeting that Fannin had arranged with a representative of the IBEW to meet with the
Respondent’s employees on Friday, March 11. Although there is no direct evidence to establish 20
that the Respondent knew of Fannin’s pivotal role in attempting to secure IBEW representation
for the Respondent’s employees by arranging this meeting, I draw the inference that the
Respondent, and specifically Vaughn Junior, was apprised of this on the evening of March 9.
This inference is supported by the application of the small plant doctrine, which presumes 25
the Respondent’s knowledge of such activity, that I have discussed earlier in this decision. In the
instant case, the application of this presumption is supported by the evidence of communication
between Hillier and Vaughn Junior regarding the union representation of the employees. This
was clearly established by Hillier’s admission that he spoke with Vaughn Junior about the
various options regarding union representation that employees were considering prior to the 30
January 28, 2011 meeting. Finally, I also rely on Vaughn Junior’s admission that because the
Respondent is a small company, sooner or later everything got back to him. With this
background, the application of the small plant doctrine to find that Vaughn Junior knew of
Fannin’s role in arranging for employees to meet with the IBEW on March 11 is appropriate.26
35
Evidence of Vaughn Junior’s animosity toward the IBEW is established by the fact that at
the January 28, 2011 meeting he indicated his personal dislike of unions based on his experience
as a member of two unions. Vaughn Junior testified at the hearing that one of those unions was

25 I credit Singleton’s testimony over Fannin’s with respect to this issue. Given his position,
Singleton was aware of all of the jobs that the Respondent was working on, while Fannin only knew of
the individual jobs he worked on. Accordingly, I find Singleton’s testimony to be more reliable on this
issue.
26 I do not credit Vaughn Junior’s denial that he was unaware of Fannin’s role in setting up a meeting
with the IBEW prior to discharging him as I find it implausible considering the record as a whole.
Although the Respondent called Hillier as a witness, he did not testify regarding this issue.
JD–77–11
29
the IBEW (Tr. 17). This evidence strengthens the Acting General Counsel’s prima facie case
regarding the discharge of Fannin.
Since the Acting General Counsel has established a strong prima facie case under Wright
Line analysis, the burden of persuasion shifts to the Respondent to show that it would have 5
discharged Fannin if he had not engaged in protected activity. In Golden State Foods Corp., 348
NLRB 382, 385 (2003), the Board indicated:
However, if the evidence establishes that the reasons given for the Respondent’s
action are pretextual—that is, either false or not in fact relied upon—the 10
Respondent fails by definition to show that it would have taken the same action
for those reasons, absent the protected conduct, and thus there is no need to
perform the second part of the Wright Line analysis. Limestone Apparel Corp.,
255 NLRB 722 (1981).27
15
The Respondent contends that it discharged Fannin for his outburst regarding Vaughn
Junior over what Fannin perceived to be the discriminatory treatment of his brother and himself.
However, as I have found above, Fannin’s statements regarding Vaughn Junior were made on
Monday, March 7, 2011, and were reported to Vaughn Junior by Hillier that evening. On
Wednesday, March 9, 2011, Vaughn Junior saw Fannin at a jobsite on two different occasions 20
and, while he engaged in casual conversation with him, made no mention of what Hillier had
reported to him. If Vaughn Junior was truly concerned about Fannin’s alleged insubordination, I
believe he would have confronted him about it on March 9. While I do not condone the
language used by Fannin on March 7 regarding Vaughn Junior I note that such language appears
to be commonly used both by Vaughn Junior and employees as established by the recording of 25
the January 28, 2011 meeting. In this vein, after Fannin was discharged, Shawn Vaughn told
Fannin that he was getting “fucked” because he was getting discharged for “bad mouthing”
Vaughn Junior. I find this evidence further supports a finding of pretext regarding the reasons
advanced for Fannin’s discharge.
30
I find that what greatly concerned Vaughn Junior was the knowledge he gained on the
evening of March 9, that Fannin had organized a meeting with the IBEW and the Respondent’s
employees for March 11, 2011. After learning of this, Vaughn Junior precipitously discharged
him the next day for his allegedly insubordinate statements that he made on March 7. According
to Fannin’s credited testimony, Vaughn Junior did not confront him with the statement that he 35
had made and did not give him an opportunity to explain it. Moreover, there is no evidence that
the Respondent ever disciplined any other employee because of insubordinate conduct or profane
language. I conclude that the evidence establishes that the Respondent seized on the statements
that Fannin made on March 7, as a pretext to discharge him because of his union and other
protected activity. Although I find that the Respondent’s discharge of Fannin principally 40
resulted from his efforts to seek IBEW representation, the fact that Fannin had a pending unfair
labor practice charge, in my view, played some part in the Respondent’s motivation.

27 In Austal USA, LLC, 356 NLRB No. 65 (2010), the Board reiterated that a Wright Line analysis is
applicable in cases in which there is a finding that an employer’s purported justification for its action is
pretextual.
JD–77–11
30
Accordingly, I find that the Respondent discharged Fannin in violation of Section 8(a)(4), (3),
and (1) of the Act.
The Alleged Refusal to Assign Work to Williams
5
Paragraph 17 of the complaint alleges that the Respondent, since January 28, 2011, has
refused to assign work to Michael Williams in violation of Section 8(a)(4), (3), and (1) of the
Act.
Facts10
Williams began his employment with the Respondent as a wire puller in December 2009.
He was laid off by the Respondent on approximately September 3, 2010. During this period of
employment, Williams was represented by the CWA, Local 4300 but, as I have noted earlier in
this decision, was unaware of that fact as late as February 2010, because of the Union’s lack of 15
involvement with the Respondent’s employees. After his layoff in September 2010, Williams
attended a union meeting with Fannin and Caicco in order to find out what the Union could do
for them.
While on layoff from the Respondent, Williams began working full-time for another 20
employer, Lordstown Seating, on the 3 to 11 p.m. shift. In November 2010, Williams gave an
affidavit to Region 8 of the NLRB as part of the investigation of the charge filed by Dustin
Porter in Case 8–CA–39168. In December 2010, Williams informed both Fannin and Caicco
that he had given the affidavit. Later Fannin informed Fannin and Caicco that he had been
subpoenaed to testify at the NLRB hearing that was then scheduled for January 24, 2011.2825
In mid-January 2011, Williams called the Respondent to find out when his W-2 for the
prior year would be ready. Williams spoke to Vaughn Junior who told him that he would like to
recall Williams on a part-time basis. When Williams asked where he would be working, Vaughn
Junior replied it would be at a school in Ashtabula. Vaughn Junior asked Williams to come in 30
and meet with him to discuss his schedule on Friday, January 14. Williams explained that he
would have to meet with Vaughn Junior in the early afternoon so he could go to work at 3 p.m.
for his full-time job. They agreed to meet at 1 p.m.
On January 14, 2011, Williams met with Vaughn Junior and Singleton. Vaughn Junior 35
told Williams that he could work part time a few days a week. Williams indicated he could only
work until noon so that he could be at his full-time job by 3 p.m. Since Monday, January 17,
was Martin Luther King day, Williams was not working at Lordstown Seating and said that he
could work full-time on that day. Vaughn Junior said that was fine and that Singleton would let
Williams know what his schedule would be after that.40

28 The hearing regarding the amended consolidated complaint that had issued in Cases 8–CA–38901
and 8–CA–39168 involving Placeres and Porter was scheduled for that date (GC Exh. 1l). On January 7,
2011, the Regional Director issued an order indefinitely postponing the hearing scheduled for January 24,
2011 (GC Exh. 1g).
JD–77–11
31
After working for the Respondent for a full day on January 17, Williams called Singleton
and Singleton informed him that he could work on Thursday, January 20. Williams reiterated
that he could work from 7 a.m. to noon and Singleton found that acceptable. Williams called
Singleton on Friday, January 21, and Singleton informed him that the Respondent had work
available and asked Williams what dates were best for him. Williams replied Mondays and 5
Thursdays but asked Singleton what days Singleton needed him. Singleton said that Tuesdays
and Thursdays worked best for him. Williams replied that that was fine with him but he just
needed to know so he could contact his mother-in-law in order for her to take care of his
children. Williams and Singleton agreed that Williams would work on Tuesday, January 25.
10
On Monday, January 24, Williams was assigned to mandatory overtime at his regular job.
Williams called Singleton to tell him that since he would be working into the early morning
hours of Tuesday, January 25, he could not work for the Respondent on that day. Singleton told
Williams to call him later in the day on January 25, to see when he would be needed again.
Williams called Singleton on January 25, and Singleton told Williams he could work on 15
Thursday, January 27.
Williams arrived at the jobsite on January 27 shortly before the 7 a.m. starting time and
spoke to Hillier and Caicco. Hillier asked Williams if he was supposed to testify the previous
Monday (January 24) on Porter’s behalf. When Williams asked Hillier what he was talking 20
about, Hillier replied that Caicco had told him that Williams was going to testify for Porter at the
hearing. Williams told Hillier that he did not know what he was talking about. Hillier did not
pursue the matter after that. Later that morning, Williams asked Caicco whether he had told
Hillier that Williams was supposed to testify for Porter. Caicco admitted that he had told Hillier
because he did not think that Williams would mind. Williams told Caicco that he was concerned 25
that since Hillier had been informed, this information would get to Vaughn Junior. Williams
worked from 7 a.m. to noon on January 27.
On January 28, Williams called Singleton who informed him there was no work available
that week and to call the following Friday. When Williams called on Friday, February 4, 30
Kovach informed him that there was no work available for him but that he could call back on
Monday and speak to Singleton. On Monday, February 7, Williams spoke to Singleton who said
that they were probably not going to need him again until the third school started in Ashtabula
and that he should call on Friday to see if there was any work available.
35
On February 9, 2011, Williams filed a charge in Case 8–CA–39334 alleging that the
Respondent was refusing to assign him work in violation of Section 8(a)(4), (3), and (1).
Williams called Singleton on Friday, February 11, and the following Friday, February 18, but
was told on both occasions there was no work available.
40
In late February or early March, Singleton called Williams and asked him if he was
available to work a regular afternoon shift on a jobsite at Robinson Memorial Hospital near
Canton, Ohio. Williams told Singleton that he was unable to accept the assignment because it
conflicted with his regular full-time job. Singleton responded that he had forgotten about
Williams’ schedule.45
JD–77–11
32
Singleton testified that the part-time arrangement with Williams did not work out as it
was difficult to use him properly. When asked at the hearing why Williams was not used in
February 2011, Singleton responded as follows:
Well, a couple of things. First of all in our business we base our jobs on man-5
hours. To have somebody come in, and we tried a couple of days.
But to come in and work 4 hours and then having to leave where everybody else
is still there another 4 hours, you may be pulling thick cables.
10
You can’t leave them in the hallway. And once you lose that—that extra
manpower that you expect to—expect to be there, things did slow down, and
it just didn’t work out. (Tr. 461.)
According to Singleton, shortly after Williams began working part time, he discussed the 15
matter with Vaughn Junior and Mark Davis and they concluded that Williams’ part-time
schedule was not working out. Singleton also testified that the Respondent had sufficient
manpower on the Ashtabula job. Singleton admitted that he never told Williams that the
Respondent had decided not to use him on a part-time basis when Williams kept calling back
asking if the Respondent had work for him.20
Vaughn Junior testified that he had no knowledge that Williams had given an affidavit or
that he was going to testify on Porter’s behalf at the January 24, 2011 hearing that was ultimately
postponed. Vaughn Junior also testified that the Respondent determined early on that Williams’
part-time schedule was not effective for the Respondent. In this regard, Vaughn Junior testified:25
And I actually told Brian, I said this is not working out, I says, but, that’s just see,
see where it goes. It may help. And it really didn’t. (Tr. 684.)
Shawn Vaughn testified in a somewhat confusing manner regarding Williams’ part-time 30
status. When asked how Williams’ schedule put a burden on the Respondent, Shawn Vaughn
testified as follows.
It just—working, they just—the duties if you do something in a certain area and
you have one guy there and he stops in half a day and you don’t have an extra 35
person to get the wire there.
You’re pulling a hundred cables a day, five hundred feet. If that extra person’s
not there, then you might have to, you know, don’t do as much that day
or—or its—or you just—it’s—it’s off—it’s just off.40
You have a person there, then you don’t have a person there. It’s like you turn
your head, your like where’d the person go, and he’d left half a day. (Tr. 534–
535.)
45
Finally, the Acting General Counsel’s brief sets forth accurate calculations based upon
the Respondent’s records (GC Exhs. 11a–30a and 39a) showing that the Respondent’s
JD–77–11
33
employees worked the following number of hours on the Ashtabula job site in 2011: January,
543; February, 457.53; March, 706; April, 859.22; May, 658.50; June 688.17; and July, 587.43.
Analysis
5
Applying the Wright Line factors, I note that Williams attended a union meeting in
September 2010. After his recall in January 2011, there is no evidence that he engaged in union
activities. More importantly in the context of this case, Williams gave an affidavit to the NLRB
during the investigation of the unfair labor practice charge regarding Porter’s discharge and had
been subpoenaed to testify at the hearing that was originally scheduled for January 24, 2011.10
With respect to the Respondent’s knowledge of Williams’ cooperation with the Regional
Office in the investigation and litigation of Porter’s case, I find that the small plant doctrine
again provides a basis to infer that the Respondent had knowledge of Williams’ activities in this
regard. In support of the inference I draw is the fact that Caicco told Hillier that Williams had 15
given an affidavit to the Region and that he had been subpoenaed to testify at the originally
scheduled hearing. As indicated previously, during the period prior to the January 28, 2011
meeting, Hillier was discussing with Vaughn Junior the idea of establishing an in-house union.
It is certainly reasonable to infer that during these discussions, Hillier relayed information he had
learned regarding the involvement of Williams in Porter’s case.29 This inference is further 20
supported by Vaughn Junior’s admission that anything that happened at the Respondent gets
back to him. Accordingly, I find that Vaughn Junior learned of Williams cooperation with the
Regional office after he had been recalled to work but prior to the meeting held on January 28.
Since Vaughn Junior admittedly knew of Fannin’s attendance at the September 2010 union
meeting, I draw the inference that he was also aware that Williams attended the meeting with 25
him.
The intent violations of Section 8(a)(1) and the discharge of Fannin in violation of
Section 8(a)(3) and (1) demonstrates that the Respondent harbored animus with respect to certain
union activities engaged in by its employees. Vaughn Junior also admitted his personal dislike 30
of unions. Given the evidence of the Respondent’s opposition to the union activities engaged in
by its employees, it is appropriate to consider such evidence in determining whether the
Respondent retaliated against Williams because of other protected activities he engaged in, such
as giving an affidavit during an investigation or being a potential witness at a hearing.
35
In order to establish a prima facie case, the General Counsel must establish that the
protected activity “was a substantial or motivating factor for the employer’s action.” La Gloria
Oil & Gas Co., 337 NLRB 1120, 1123 (2002). With respect to the claim that the refusal to
assign Williams work was in retaliation for union activity he engaged in and violated Section
8(a)(3) and (1), I find the evidence insufficient to establish that such conduct was a substantial 40
reason for not assigning Williams work after January 28, 2011. The only overt union activity
Williams engaged was attending one union meeting in September 2010. However, the
Respondent recalled Williams to work in mid-January 2011, thus establishing that his attendance
at that meeting several months earlier was not something that it was concerned with.

29 Although the Respondent called Hillier as a witness, he was not asked any questions regarding this
issue at the hearing.
JD–77–11
34
Accordingly, I shall dismiss the allegation that the Respondent’s refusal to assign work to
Williams violated Section 8(a)(3) and (1) of the Act. I find, however that the Acting General
Counsel has clearly presented a prima facie case that the Respondent failed to assign work to
Williams because of his cooperation with the Regional Office in violation of Section 8(a)(4) and
(1) of the Act. The fact that his assignments stopped shortly after the Respondent learned that he 5
had given an affidavit and was willing to testify on behalf of Porter is suspicious and such timing
clearly supports the inference that the Respondent failed to assign additional work to Williams in
retaliation for his activities protected under section 8(a)(4). La Gloria Oil & Gas, supra at 1124;
Toll Mfg. Co., 341 NLRB 832, 833 (2004).
10
Having found that the Acting General Counsel has established a prima facie case with
respect to the Respondent’s conduct violating Section 8(a)(4) and (1) regarding Williams, I now
examine the Respondent’s argument that there are legitimate business reasons for its failure to
assign work to him after January 27, 2011.
15
I do not find persuasive the Respondent’s attempted explanation that Williams’s part-
time schedule simply did not work out for the Respondent. Vaughn Junior and Singleton have
long experience in the telecommunications industry and made a point in their testimony of
describing their expertise in the operation of their business. Certainly, when Vaughn Junior
asked Williams to return on a part-time basis, he had a plan as to how to effectively utilize him in 20
this capacity. Although there can be a disconnect between a plan and the manner in which it is
effectuated, the amorphous explanation given by the Respondent’s witnesses regarding this issue
did not indicate with any specificity what the nature of the problem allegedly was. The fact that
another employee may have had to be assigned a task that Williams worked on in the morning,
does not seem particularly problematic, since the record establishes that employees are, at times, 25
transferred from job to job on a daily basis. In addition to the unconvincing nature of these
explanations, Singleton never told Williams that his schedule was not working out for the
Respondent. Rather than telling Williams he was not being assigned work because his part-time
schedule did not work for the Respondent, Singleton merely told him to keep calling to see if any
work might be available. The failure to tell employees the asserted reason for adverse 30
employment action has been considered by the Board in finding the action to be discriminatorily
motivated. D & F Industries, Inc., 339 NLRB 618, 622 (2003).
With respect to Singleton’s claim that the Respondent had sufficient manpower on the
Ashtabula job, the Respondent’s records do show a decline in the number of hours worked on the 35
Ashtabula jobsite in February 2011, but then show significant increases in those hours from
March through July 2011. According to Williams’ credited testimony, Singleton told him in one
of their later conversations in February 2011, that there may not be additional work for him until
the third school in Ashtabula was started. However, in early March 2011, when the number of
hours on the Ashtabula jobsite substantially increased, Singleton offered Williams work on an 40
afternoon shift on another project. Singleton knew full well that Williams would not accept that
offer as it conflicted with his regular full-time employment. I find that the Respondent’s offer of
this employment to Williams is a rather feeble attempt to defend against his claim of
discrimination.
45
On the basis of the foregoing, I find that the reasons advanced by the Respondent for
failing to assign work to Williams after January 28, 2011, are a pretext for retaliating against him
JD–77–11
35
for his cooperation with the Regional Office in the investigation and prosecution of Porter’s case.
Accordingly, I find that the Respondent refused to assign work to Williams violated Section
8(a)(4) and (1) of the Act.
CONCLUSIONS OF LAW5
1. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1)
of the Act by
(a) threatening an employee with termination if he spoke about a union again.10
(b) coercively soliciting employees to form an in-house union.
2. The Respondent has engaged in an unfair labor practice in violation of Section
8(a)(4), (3), and (1) of the Act by discharging Ben Fannin because Fannin and other 15
employees engaged in union activities and because Fannin filed an unfair labor practice charge
under the Act.
3. The Respondent has engaged in an unfair labor practice in violation of Section
8(a)(4) and (1) of the Act by refusing to assign work to Michael Williams because he gave 20
testimony under the Act.
4. The above unfair labor practices affect commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
25
5. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 30
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent, having discriminatorily discharged an employee, must offer Ben Fannin
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be 35
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other
grounds sub. nom., Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
40
The Respondent, having discriminatorily refused to assign work to an employee, must
offer available work to Michael Williams, consistent with his schedule, and make him whole for
any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed Kentucky River Medical 45
Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub. nom., Jackson Hospital
Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
JD–77–11
36
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended30
ORDER
5
The Respondent, Mid-West Telephone Service, Inc., Girard, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
10
(a) Threatening employees with discharge for speaking about a union.
(b) Coercively soliciting employees to form an in-house union.
(c) Discharging or otherwise discriminating against employees for engaging in15
union or other protected concerted activities and filing an unfair labor practice charge.
(d) Refusing to assign work to employees who have given testimony under the
Act.
20
(e) In any like or related manner, interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
25
(a) Within 14 days from the date of the Board’s Order, offer Ben Fannin full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Ben Fannin whole for any loss of earnings and other benefits suffered30
as a result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Fannin in writing that 35
this has been done and that the discharge will not be used against him in any way.
(d) Within 14 days from the date of the Board’s order, offer Michael Williams
available work, consistent with his schedule.
40
(e) Make Michael Williams whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the manner set forth in the remedy
section of the decision.

30 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–77–11
37
(f) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored 5
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(g) Within 14 days after service by the Region, post at its facility in Girard, Ohio,
copies of the attached notice marked “Appendix.”31 Copies of the notice, on forms provided by 10
the Regional Director for Region 8, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the 15
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and 20
former employees employed by the Respondent at any time since February 15, 2010.
(h) 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.25
(i) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., December 28, 2011.30
____________________
Mark Carissimi35
Administrative Law Judge

31 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT threaten employees with discharge for speaking about a union.
WE WILL NOT coercively solicit employees to form an in-house union.
WE WILL NOT discharge or otherwise discriminate against employees for engaging in union or
other protected concerted activities.
WE WILL NOT refuse to assign work to employees who have given testimony under the
National Labor Relations Act.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s order, offer Ben Fannin full reinstatement
to his former job, or if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any rights or other privileges previously enjoyed.
WE WILL make whole Ben Fannin for any loss of earnings and other benefits suffered as a
result of our discrimination against him, with interest.
WE WILL within 14 days from the date of the Board’s order, remove from our files any
reference to the unlawful discharge of Fannin, and within 3 days thereafter notify him in writing
that this has been done and the discharge will not be used against him in any way.
WE WILL within 14 days from the date of the Board’s order, offer Michael Williams available
work, consistent with his schedule.
WE WILL make Michael Williams whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him, with interest.
MID-WEST TELEPHONE SERVICE, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Room 1695, Cleveland, OH 44199-2086
(216) 522-3715, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (216) 522-3740.