Murrill Electric, LLC

National Labor Relations Board - Board Decisions

Jun 30, 2008

352 N.L.R.B. 784 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 96
784
Murrill Electric, LLC and International Brotherhood
of Electrical Workers Local Union No. 611,
AFL–CIO. Case 28–CA–21503
June 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 3, 2008, Administrative Law Judge Gerald A.
Wacknov issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.2
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
William Mabry III, Esq., for the General Counsel.
Wayne E. Bingham, Esq. (Bingham, Hurst & Apodaca), of
Albuquerque, New Mexico, for the Respondent.
John L. Hollis, Esq. (John L. Hollis, P.A.), of Albuquerque,
New Mexico, 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 Albu-
querque, New Mexico on January 15, 2008. The charge in Case
28–CA–21503 was filed by International Brotherhood of Elec-
trical Workers Local Union No. 611, AFL–CIO (the Union) on
August 1, 2007. The Union filed an amended charge on Octo-
ber 25, 2007. Thereafter, on October 31, 2007, the Regional
Director for Region 28 of the National Labor Relations Board

1 In adopting the judge’s decision, we find that he did not abuse his
discretion in denying the General Counsel’s motion to amend the com-
plaint. See Sec. 102.17 of the Board’s Rules and Regulations. We
further note that the denial of the motion does not leave the Union
without an opportunity to file a new charge within the limitation period
of Sec. 10(b).
No party excepts to the judge’s dismissal of the allegations that the
Respondent violated Sec. 8(a)(3) and (1) by refusing to consider em-
ployee Shawn Doyle for hire because of his union activity and that it
violated Sec. 8(a)(1) by disparaging the Union and by threatening em-
ployees that they would not be considered for hire because of their
union affiliation.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
(the Board) issued a complaint and notice of hearing alleging a
violation by Murrill Electric, LLC (the Respondent) of Section
8(a)(1) and (3) of the National Labor Relations Act (the 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 (the Gen-
eral 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
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a New Mexico corporation with its office
and principal place of business located in Carlsbad, New Mex-
ico, where it is engaged in the building and construction indus-
try 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 em-
ployer 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 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 Respon-
dent’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 of-
fice, Eric Reynolds, “I just wanted to come out and fill out an
application.” Reynolds, who had been hired about a week ear-
lier, 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 with the IBEW?]”2 Craig

1 Doyle was not sure of the date; nor did he have a convincing recol-
lection of the conversation.
2 The transcript of the very brief conversation was received in evi-
dence. 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
MURRILL ELECTRIC, LLC 785
Bunch, then acting as an estimator,3 who was in an adjoining
office on the other side of the wall from Reynolds, and over-
heard 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 Respon-
dent’s jobs were located, did not at that point say, “How’s it
going?” to Doyle as the transcript states. Rather, Bunch an-
swered, [“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 lat-
ter 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 appli-
cation.
Clearly, Doyle understood this too, as is clear from the con-
text of Doyle’s very next remark, namely, “You’re not going to
go Union?”5 To which Bunch again replied, “No.” The conver-
sation 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

in the room made the conversation difficult to discern, and the re-
cording 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 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 re-
sponsibility vis-à-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.
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 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 Re-
spondent.
Thus, during the course of the conversation, Doyle repeat-
edly asks, apparently, about signing up with the Union. Accord-
ing 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 an-
other subject, namely Craig Bunch’s brother, whom Doyle
happened to know. Then Doyle ended the conversation, say-
ing, “Well, I hate to bring—bring up a nasty word. Well, its
good seeing you, Craig,” and departed. Neither Doyle’s testi-
mony 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 nonunion shop.
The complaint alleges that these replies by Bunch, “threat-
ened employees by informing them that they would not be con-
sidered 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 399 (2007), wherein the Board finds unlawful an
employer’s statement to an open union organizer applicant for
employment that if he intended to organize nonunion 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 appli-
cation.” 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.
On the basis of the foregoing, I find the record evidence in-
sufficient to establish that Doyle was refused an employment
application, or that the Respondent threatened employees or

7 I am assuming Bunch’s reply has some relation to Doyle’s ques-
tion. 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 Respon-
dent and even enter into an agreement with the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD786
disparaged the Union in violation of the Act. Therefore, I shall
dismiss the complaint in its entirety.9

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).
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 recommended10
ORDER
The complaint is dismissed in its entirety.

10 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.