Murrill Electric, LLC

National Labor Relations Board - Administrative Judge Opinions

Apr 3, 2008

28-CA-021503 (N.L.R.B. Apr. 3, 2008)

JD(SF)-15-08
Carlsbad, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
MURRILL ELECTRIC, LLC
and Case 28-CA-21503
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS LOCAL
UNION NO. 611, AFL-CIO
William Mabry III, Esq., Phoenix, AZ,
for the General Counsel
Wayne E. Bingham, Esq., of Bingham,
Hurst & Apodaca, Albuquerque, NM,
for the Respondent
John L. Hollis, Esq., of John L. Hollis,
P.A., Albuquerque, NM, for the Union
DECISION
Statement of the Case
Gerald A. Wacknov, Administrative Law Judge: Pursuant to notice a hearing in this
matter was held before me in Albuquerque, New Mexico on January 15, 2008. The charge in
Case 28-CA-21503 was filed by International Brotherhood of Electrical Workers Local Union No
611, AFL-CIO (Union) on August 1, 2007. The Union filed an amended charge on October 25,
2007. Thereafter, on October 31, 2007, the Regional Director for Region 28 of the National
Labor Relations Board (Board) issued a complaint and notice of hearing alleging a violation by
Murrill Electric, LLC (Respondent) of Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (Act). The Respondent, in its answer to the complaint, duly filed, denies that it
has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to call, examine, and cross-
examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs
have been received from Counsel for the General Counsel (General Counsel), counsel for the
Respondent, and counsel for the Union. Upon the entire record, and based upon my
observation of the witnesses and consideration of the briefs submitted, I make the following:
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Findings of Fact
I. Jurisdiction
The Respondent is a New Mexico corporation with its office and principal place of
business located in Carlsbad, New Mexico, where it is engaged in the building and construction
industry as an industrial and commercial electrical contractor. In the course and conduct of its
business operations the Respondent annually purchases and receives at its Carlsbad, New
Mexico facility goods valued in excess of $50,000 directly from points outside the state of New
Mexico. It is admitted and I find that the Respondent is, and at all material times has been, an
employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
II. The Labor Organization Involved
It is admitted, and I find, that The Union is and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the Act,
III. Alleged Unfair Labor Practices
A. Issues
The principal issue in this proceeding is whether “On or about April 23, 2007, the
Respondent refused to consider for hire Shawn Doyle” because of his union activity.
B. Facts
In late April or early May, 2007, Shawn Doyle, a journeyman electrician and member of
the Union, was sent to the Respondent’s office by his business agent. Doyle, apparently at the
behest of the business agent, recorded the conversation.1
Doyle, wearing an IBEW tee-shirt and an IBEW cap, entered the office around
lunchtime, and told the clerk in the front office, Eric Reynolds, “I just wanted to come out and fill
out an application.” Reynolds, who had been hired about a week earlier, said “Okay.” He then
began looking in or around the desk of the office secretary, Mary, who happened to be at lunch,
for the employment applications. As he was doing so, Doyle asked, “Your job will be [signed

1 Doyle was not sure of the date; nor did he have a convincing recollection of the conversation.
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with the IBEW?]” 2 Craig Bunch, then acting as an estimator,3 who was in an adjoining office
on the other side of the wall from Reynolds, and overheard the conversation, answered “No” to
Doyle’s question. Reynolds, according to Doyle, “hollered back” to Bunch in the back office,
“Where are they at, Craig?” meaning where are the employment applications, as Reynolds
could not find them. Bunch, believing that Reynolds was asking where the Respondent’s jobs
were located, did not at that point say, “How’s it going?” to Doyle as the transcript states.
Rather, Bunch answered, [“The jobs?”] To which Doyle, realizing that Reynolds and Bunch
were talking about two different things, interjected, “The application.” Bunch, who had come to
the front office area, directly repeated to Doyle what he had initially said from the other side of
the wall, however, this time he said, "No, we’re not Union,” rather than simply, “No.”
The General Counsel, in his brief, maintains that by this latter statement Bunch rejected
Doyle’s request for an application and refused to give Doyle an application.4 I do not agree.
Rather, I find that Bunch was again replying to Doyle’s original question, namely, whether,
“Your job will be signed with the IBEW?”, and was not referring to Doyle’s request for an
application.
Clearly, Doyle understood this too, as is clear from the context of Doyle’s very next
remark, namely, “You’re not going to go Union?”5 To which Bunch again replied, “No.” The
conversation between Doyle and Bunch continued for some moments, in a seemingly friendly
fashion, about the Union and unrelated matters, infra,6 during which Bunch gave Doyle the
name of a union shop. Doyle never asked whether Bunch was refusing to give him an
application, and left without again asking for an application. Further, Doyle, during his
testimony, was not asked whether he understood Bunch to be refusing to provide him with an
application; nor did he so testify. In fact, as noted above, Doyle does not remember much of the
conversation. Doyle did testify that after he and Bunch started talking, “the clerk that was
looking for my application, he seemed to quit looking for my application.” However, it has been
established that Reynolds could not locate the applications, and it seems reasonable to
conclude that Reynolds quit looking because he did not know where the applications were kept

2 The transcript of the very brief conversation was received in evidence. The recording from
which the transcript was taken was played on the General Counsel’s computer in a large
courtroom where the hearing was held. The rather poor recording coupled with the acoustics in
the room made the conversation difficult to discern, and the recording was replayed many
times. Upon repeatedly listening to the recording in a better setting, it is clear that the transcript
is inaccurate in several respects. While the parties stipulated to the accuracy of the transcript, I
shall not rely upon a transcript that is obviously incorrect. The corrections I am making to the
transcript are set forth herein in brackets, and the parties may confirm or dispute the accuracy
of these corrections upon listening to the recording once again.
3 The status of Bunch is in issue and was extensively litigated. He is at various times an
estimator, a leadman, a foreman of a crew, or a journeyman electrician working under a
different foreman, depending on the Respondent’s needs at the time. The Respondent denies
that he is a supervisor or agent of the Respondent or has any authority or responsibility vis-a vis
applicants for employment. As I am dismissing the complaint on other grounds, his status need
not be resolved.
4 I credit Bunch’s testimony and find that he had never handed out job applications. Further, I
credit Bunch’s testimony that he did hear Doyle ask for an application, but did not hand Doyle a
job application because he didn’t know where they were kept.
5 Rather than, “You’re not going to give me an application?”
6 It turns out that Doyle recognized Bunch when Bunch entered the room.
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and/or because Doyle made it clear or at least strongly indicated during the course of the
conversation that he was seeking a job with a union contractor, and in fact wanted the
Respondent to sign up with the Union before he would be willing to work for the Respondent.
Thus, during the course of the conversation, Doyle repeatedly asks, apparently, about
signing up with the Union. According to the transcript, Doyle says, “You might want to-,“ to
which Bunch replies, “We don’t want to have anything to do with the union.”7 At another point,
Doyle states, “(inaudible) to sign up for the union?,” to which Bunch replies, “No, it’s a nasty
word around here.” The conversation then turned to another subject, namely Craig Bunch’s
brother, whom Doyle happened to know. Then Doyle ended the conversation, saying, “Well, I
hate to bring—bring up a nasty word. Well, its good seeing you, Craig,” and departed. Neither
Doyle’s testimony nor the transcript of the conversation indicates that Doyle was attempting to
obtain employment so that he could organize the Respondent’s employees, or even that he was
wiling to accept a job with a non-union shop.
The complaint alleges that these replies by Bunch, “threatened employees by informing
them that they would not be considered for employment because of their Union affiliation.” I do
not agree. There is no evidence Doyle was told he would not be considered for hire because of
his union affiliation.
The complaint also alleges Bunch “disparaged the Union by informing employees that
the Union is a nasty word.” In this regard, the General Counsel cites Tradesman International
Inc., 351 NLRB No. 27 (September 29, 2007), wherein the Board finds unlawful an employer’s
statement to an open union organizer applicant for employment that if he intended to organize
non-union shops into union shops, then the employer was not interested in hiring him. This,
according to the administrative law judge’s analysis, “disparages the applicant’s involvement
with the union and it discourages or implies the futility of further pursuing his application.” Unlike
Tradesman International, however, the instant case has nothing to do with organizing. Here,
Doyle mentions nothing about organizing the Respondent’s employees, and seemingly wants
Bunch, on behalf of the Respondent, 8 to sign up with the Union in an arrangement under
Section 8(f) of the Act. To such a request, Bunch says no, that “union” is a nasty word; but he
does not, as in Tradesman International, tell Doyle that the Respondent would not be interested
in hiring him.

7 I am assuming Bunch’s reply has some relation to Doyle’s question. Therefore, I assume
Doyle asked something about the Union.
8 Doyle never asked Bunch’s position with the Respondent and seems to assume that Bunch
has the authority to speak for the Respondent and even enter into an agreement with the
Union.
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On the basis of the foregoing, I find the record evidence insufficient to establish that
Doyle was refused an employment application, or that the Respondent threatened employees
or disparaged the Union in violation of the Act. Therefore, I shall dismiss the complaint in its
entirety. 9
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in the complaint.
On these findings of fact and conclusions of law, I issue the following recommended:
ORDER10
The complaint is dismissed in its entirety.
Dated: April 3, 2008
________________________
Gerald A. Wacknov
Administrative Law Judge

9 The General Counsel’s motion to amend the complaint, denied at the hearing, is renewed in
the General Counsel’s brief. During the course of the hearing the General Counsel discovered
that, according to the Respondent’s employee handbook, employees’ pay is a confidential
matter and employees are not permitted to discuss among themselves the pay they receive for
their work. I denied the General Counsel’s motion at the hearing principally because, as the
proposed amendment has nothing to do with the Respondent’s alleged refusal to furnish Doyle
a job application, it is unrelated to the complaint allegations. I again deny the General
Counsel’s motion for the same reason, and, additionally, as a result of my initial ruling, because
the Respondent has not been given an opportunity to investigate, litigate and/or resolve this
matter. See Pincus Elevator & Electric Co., 308 NLRB 684 (1992); Payless Drug Stores, 313
NLRB 1220, 1221 (1994).
10 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.