Norman King Electric

National Labor Relations Board - Board Decisions

Nov 7, 1997

324 N.L.R.B. 1077 (N.L.R.B. 1997)

1077
324 NLRB No. 166
NORMAN KING ELECTRIC
1 No exceptions were filed to the judge’s dismissal of (1) 8(a)(1)
allegations that the Respondent prohibited its employees from talking
to union people or contractors, photographed employees engaged in
picketing, and advised employees that other employees had been laid
off because they filed charges against the Respondent; and (2)
8(a)(3) and (1) allegations that the Respondent assigned employee
Robert McBride to an onerous job assignment in order to discourage
protected concerted activity.
In affirming the judge’s finding that the June 16 interrogation of
Robert McBride violated Sec. 8(a)(1), we do not rely on subsequent
unlawful conduct by the Respondent. We emphasize instead that the
coercive effect of the interrogation was heightened by the fact that
it was conducted by the Respondent’s highest official, its owner and
president, Norman King, and addressed to an individual who was ap-
plying for employment with the Respondent.
2 In adopting the judge’s finding that the Respondent unlawfully
interrogated employees, Chairman Gould finds it unnecessary to rely
on the holdings in Rossmore House, 269 NLRB 1176 (1984), affd.
760 F.2d 1006 (9th Cir. 1985), and Sunnyvale Medical Clinic, 277
NLRB 1217 (1985).
3 This case arises in the jurisdiction of the United States Court of
Appeals for the Sixth Circuit. The judge found, and we agree, that
the General Counsel here, met the requirements of the court’s test
set forth in NLRB v. Fluor Daniel, Inc., 102 F.3d 818 (6th Cir.
1996), for finding violations in cases alleging discriminatory refusal
to hire applicants for employment. Thus, the record supports a find-
ing that the six applicants found to have been discriminated against
had applied for jobs with the Respondent and were qualified for
available jobs for which the Respondent was seeking applicants. De-
spite the applicants’ qualifications, they were not hired for antiunion
reasons. After refusing to hire these six applicants, the Respondent
continued to seek other applicants with the same qualifications for
its open positions and hired other applicants for those positions.
Kentucky General, Inc., d/b/a/ Norman King Elec-
tric and International Brotherhood of Elec-
trical Workers, Local Union 1701, AFL–CIO.
Cases 25–CA–23407, 25–CA–23456–1–2, 25–
CA–23467–1–2, and 25–CA–23530
November 7, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On April 7, 1997, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
General Counsel filed limited exceptions with support-
ing argument and a brief in support of the judge’s de-
cision. The Respondent filed exceptions and a support-
ing brief and an answering brief to the General Coun-
sel’s limited exceptions.
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 rul-
ings, findings,1 and conclusions2 and to adopt the rec-
ommended Order which is modified and set forth in
full below to reflect the amended remedy.
The judge found that the Respondent violated Sec-
tion 8(a)(3) of the Act by refusing to hire or consider
for employment six applicants for employment because
of their union affiliations. We agree with the judge, for
the reasons stated in his decision, but with the follow-
ing additional observations and modifications.3 First,
we note that the Respondent has not excepted to the
judge’s finding that it knew of the six applicants’
union affiliations and does not argue to the contrary in
its brief. Second, although we agree with the judge that
the Respondent’s professed reasons for hiring the em-
ployees it hired instead of the discriminatees were
unpersuasive, we do not rely on the subjective nature
of the Respondent’s hiring process. We do note, in ad-
dition to the other factors cited by the judge, that the
record contains scant support for the Respondent’s
claim that it hired Jeff McManaway and Tim Cureton,
because it was familiar with their skills and abilities.
There is no evidence that either of those men had pre-
viously worked for the Respondent, or with its owner
and president, Norman King, and King testified only in
generalities concerning his asserted knowledge of their
skills. We also note that, although the Respondent
hired Jeff Jones on the basis of another employee’s
recommendation, when King told Thaddeus McCormic
that he still needed more electricians and asked if he
knew any who needed work, King did not pursue the
matter further when McCormic said he only knew
about union electricians. Thus, even though the Re-
spondent needed additional electricians and was will-
ing to hire nonunion electricians on the recommenda-
tion of other employees, it apparently was not inter-
ested in obtaining the names of union electricians in
the same fashion.
We also adopt the judge’s finding that the Respond-
ent unlawfully laid off Robert McBride and Thaddeus
McCormic because they engaged in activities protected
by Section 7 of the Act. In reaching that conclusion,
the judge considered and rejected the Respondent’s
claim that it selected McBride for layoff because he
had previously done a poor job of wiring a control
panel, and that it selected McCormic for layoff, be-
cause he became upset when another employee was
chosen as an acting supervisor rather than McCormic.
We agree with the judge that the Respondent’s asserted
reasons for these layoffs are pretextual. However, we
do not rely on his reasoning that the Respondent
lacked sufficient knowledge of the extent of McBride’s
poor workmanship to warrant laying him off, and that
McCormic’s reaction to being passed over for the posi-
tion of acting supervisor was not a negative attitude
that would justify his selection for layoff, which essen-
tially amounts to a questioning of the Respondent’s
business judgment.
We rely instead on the other factors cited by the
judge and, in addition, on the fact that the discrim-
inatees were not laid off when they first engaged in the
conduct relied on by the Respondent, but were let go
only after they had engaged in protected picketing.
Thus, the Respondent appears to have tolerated their
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1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 We recognize that, when an employer lays off employees be-
cause of lack of work, it has to have some basis for selecting whom
to lay off. Thus, it may choose to lay off particular employees on
the basis of conduct that, although undesirable, did not warrant their
discharge when work was more abundant. In those circumstances,
we might not necessarily infer, based on prior inaction, that a layoff
is discriminatorily motivated. Here, however, the judge found that
the Respondent did not have a convincing reason for laying off two
employees at the time McBride and McCormic were let go. More-
over, even though the Respondent hired additional employees after
McBride and McCormic were laid off, the two discriminatees were
not recalled. In this context, the Respondent’s actions regarding
McBride and McCormic were in reality discharges, and accordingly
it is proper to consider the Respondent’s prior overlooking of their
claimed shortcomings, in assessing and reject the Wright Line de-
fense.
conduct until they engaged in protected activity, and
only later assertedly relied on that conduct in selecting
them for layoff. This inaction gives further support to
the judge’s finding that the Respondent would not
have laid off McBride and McCormic in the absence
of their protected activity.4
The General Counsel, in its limited exceptions, notes
that although the judge specifically found that employ-
ees Robert McBride and Thaddeus McCormic were
laid off in violation of Section 8(a)(3) and (1) of the
Act, the recommended Order does not include a provi-
sion for their reinstatement. The General Counsel sub-
mits that the judge erred in failing to provide for rein-
statement. The Respondent contends that the General
Counsel carries the evidentiary burden to establish the
likelihood that the Respondent would have continued
to have employed the discharged employees after com-
pletion of the construction project on which they were
working when laid off. The Respondent’s argument
was specifically rejected by the Board in Dean Gen-
eral Contractors, 285 NLRB 573 (1987). There, the
Board held that unlawfully discharged construction in-
dustry employees are entitled to a presumption that
they would have been transferred to other sites after
the completion of the project on which they were
working. Thus, they receive the traditional make-whole
remedy of reinstatement and backpay, leaving to com-
pliance, the determination of any limit on the respond-
ent’s liability in either respect. After a careful review
of the record, we find that the Respondent has not re-
butted the presumption but may attempt to do so at the
compliance phase of this proceeding. Id. at 575
Accordingly, we shall modify the judge’s rec-
ommended Order to require that the Respondent offer
Robert McBride and Thaddeus McCormic reinstate-
ment. We shall further modify the Order to conform
more precisely to the judge’s findings. We shall also
modify the notice to conform to the Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Kentucky General Inc., d/b/a Norman
King Electric, Owensboro, Kentucky, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed them
by Section 7 of the Act by interrogating employees
about their intentions regarding union activity; imply-
ing that the owner would not be pleased by any union
activities; admonishing any employee not to drag the
Company into a union campaign; implying to employ-
ees that it would be futile to support the Union; and
telling new employees that the Company had problems
with the Union and would not be a union company and
hoped the employee was not a union man.
(b) Discriminatorily laying off employees because of
and in retaliation for engaging in picketing, union ac-
tivity, or other protected concerted activities.
(c) Refusing to consider for employment or refusing
to employ job applicants for the position of journey-
man electrician because they are members or sym-
pathizers of the Union or because they worked in an
establishment which had union contracts.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Rodney Albin, Timothy Blandford, Roger Daniel, Jerry
Frey, and Alan Rafferty employment in positions for
which they applied or, if such positions no longer
exist, to substantially equivalent position without preju-
dice to their seniority or other rights or privileges to
which they would have been entitled absent the dis-
crimination.
(b) Within 14 days from the date of this Order, offer
Robert McBride and Thaddeus McCormic full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
(c) Make Rodney Albin, Timothy Blandford, Roger
Daniel, Jerry Frey, Alan Rafferty, Robert McBride,
Thaddeus McCormic, and the estate of Jerry Rogers
whole for any loss of earnings they may have suffered
by reason of the discrimination against them as set
forth in the remedy section of the judge’s decision.
(d) Within 14 days from the date of this Order, re-
move from its files and remove any and all references
to the unlawful layoffs and the unlawful refusals to
hire and consider for hire the discriminatees named in
the complaint and within 3 days thereafter notify the
discriminatees in writing that this has been done and
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1079NORMAN KING ELECTRIC
5 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.’’
that the layoffs and the refusals to hire and consider
for hire will not be used against them in any way.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days of service by the Region, post at
its Owensboro, Kentucky facilities and all current job
sites and mail to all former employees employed at
prior job sites, and to named discriminatees, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 25, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to the named
discriminatees, and all current employees and former
employees employed by the Respondent at any time
since August 18, 1994.
(g) 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 the Respondent has taken to com-
ply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed
them by Section 7 of the Act by interrogating employ-
ees about their intentions regarding union activity; im-
plying that the owner would not be pleased by any
union activities; admonishing any employee not to
drag the company into a union campaign; implying to
employees that it would be futile to support the Union;
and implying to employees that the company had prob-
lems with the Union and would not be a union com-
pany and hoped the employees are not union men.
WE WILL NOT discriminatorily lay off employees be-
cause of and in retaliation for their engaging in picket-
ing, union activity, or other protected concerted activi-
ties.
WE WILL NOT refuse to consider for employment or
refuse to employ job applicants for the positions of
journeyman electrician because they are members or
sympathizers of the Union or because they worked in
establishments which had union contracts.
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 of the date of the Board’s
Order, offer Robert McBride and Thaddeus McCormic
reinstatement to their former jobs or, if such positions
no longer exist, to substantially equivalent positions
without prejudice to their seniority rights or any other
rights or privileges previously enjoyed.
WE WILL, within 14 days of the date of the Board’s
Order, offer Rodney Albin, Timothy Blandford, Roger
Daniel, Jerry Frey, and Alan Rafferty employment in
positions for which they applied or, if such positions
no longer exist, to substantially equivalent positions.
WE WILL make Robert McBride and Thaddeus
McCormic, and the estate of Jerry Rogers whole for
any loss of earnings they may have suffered by reason
of the discrimination against them.
WE WILL remove from our files any and all ref-
erence to the layoffs and the refusal to hire and con-
sider for hire, the individuals named above and notify
them in writing that this has been done and that the
layoffs, the refusal to hire, or consider for hire will not
be used against them in any way.
KENTUCKY GENERAL, INC., D/B/A NOR-
MAN KING ELECTRIC
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1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1994, unless otherwise indicated.
Steve Robles and Alonzo Weems, Esqs., for the General
Counsel.
W. Kevin Smith, Esq., of Louisville, Kentucky, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Owensboro, Kentucky, on December 9
and 10, 1996. Subsequent to an extension in the filing date,
briefs were filed by the General Counsel and the Respondent.
The proceeding is based on an initial charge filed August 18,
1994,1 by International Brotherhood of Electrical Workers,
Local Union 1701 (the Union). The Regional Director’s con-
solidated complaint dated September 26, 1995, alleges that
Respondent, Kentucky General, Inc. d/b/a Norman King
Electric, of Owensboro, Kentucky, violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act) by in-
terrogating employees and employment applicants about their
union activities; advising employees that selection of the
Union as their collective-bargaining representative would be
futile; threatening employees because of their union activity;
photographing employees who were engaged in lawful pick-
eting; prohibiting employees from talking with other individ-
uals who were members of the Union; and advising employ-
ees that other employees had been laid off because they filed
charges under the Act against it and by failing to hire or con-
sider to hire various applicants for employment, by assigned
employee Robert J. McBride to an onerous and less agree-
able job assignment, and by laying off or terminated
McBride and employee Thaddeus McCormic and failing and
refusing to recall or reinstate them because of the employees’
union and concerted activities and to discourage employees
from engaging in these activities.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged as an electrical contractor in the
construction industry in the Owensboro area. It annually pur-
chases and receives goods and materials valued in excess of
$50,000 from other enterprises in Kentucky each of which
purchased and received these goods or services directly from
points outside Kentucky. It admits that at all times material
is has been an employer engaged in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. It also admits that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Norman King is the president and owner of Respondent.
After working as a journeyman electrician (and union mem-
ber until he resigned in 1978), King opened the Respondent
company approximately 19 years ago. Respondent performs
residential, commercial, and industrial electrical maintenance
work, generally within a 50-mile radius of Owensboro and
it has performed electrical contracting work for Vandenburg
Foods (also known as Ragu Foods) in Owensboro for many
years. In addition to the Respondent, King operates a sepa-
rate company, Miles Construction Management. This com-
pany performs millwright, iron, and mechanical maintenance
work and it shares a building with Respondent.
In June 1994, King secured an electrical maintenance con-
tract to perform work at the Ragu plant, work that involved
reestablishing a production line from another Ragu facility
and setting up related equipment. The Respondent then had
9 journeyman and 3 helpers but needed about 20 additional
electricians and helpers for the project and in early June
1994, King visited the home of alleged discriminatee Robert
‘‘Joe’’ McBride. McBride is an electrician with 30 years’ ex-
perience and a longtime acquaintance of King who had pre-
viously worked for Respondent between 1989 and 1993. To-
ward the end of 1993, Local Union 1701 attempted to orga-
nize Respondent’s work force and McBride participated in
this 1993 organizing effort. King told McBride that Respond-
ent had a big job coming up at Ragu and that he was going
to have to hire several electricians and helpers for the job.
McBride said he might be interested in returning to work for
Respondent and about 2 weeks’ later (on about June 16),
King returned to McBride’s home. McBride asked King
whether or not he had hired any additional employees and
whether the Ragu project was starting up. King said the
project would be starting soon and McBride said he was in-
terested. King then asked what McBride would do if he hired
McBride and Local 1701 again attempted to organize the
company. McBride said that he would not participate in such
an organizing effort. King, without further explanation, re-
sponded that that was not the answer he was looking for but
he then offered McBride a job beginning June 22, McBride,
who then was employed by Allied Electric some 40 miles
away in Evansville, Indiana, accepted.
At the end of July, King hired Thaddeus McCormic to
work at the same jobsite. Prior to coming to Respondent,
McCormic worked as a field supervisor for Abell Electric in
Owensboro and at the end of the project, McCormic (who
at the time, was not a member of Local 1710 or any other
labor organization), was told by an Owensboro city inspector
that he might know of a job. McCormic then received a tele-
phone call from Alvin Quisenberry, the Respondent’s project
superintendent, who asked if he would be interested in work-
ing for Respondent. McCormic said he would and on July
28, went to Respondent’s facility, and had a conversation
with Quisenberry and King. Because it was late in the day,
King asked McCormic to return the next day but offered
McCormic a job before he left. McCormic returned and com-
pleted an application and met with King. They briefly dis-
cussed McCormic’s work history and King asked McCormic
if he knew of any area electricians who needed work because
he still needed more. McCormic explained that there were
only union electricians on his last job and they were the only
electricians he knew in the area. King said that he used to
be a member of Local 1701 but had gotten out because the
union could do nothing for him. King also said that since
then the Union had tried to organize him and that there was
no way the Union could get Respondent to sign a contract,
that all he had to do was go to negotiations four times in
a 1-year period and he would make impossible demands that
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1081NORMAN KING ELECTRIC
the Union could not meet. King then warned McCormic that
union members might approach him on the Ragu job because
there were union contractors at that jobsite. It was agreed
that McCormic would begin work on August 8. McCormic
reported to the Respondent’s facility and drove with King to
the Ragu plant. King reiterated that there were union contrac-
tors on the job, that they would be interested in organizing
him and that he did not care whether McCormic became a
union member or not but admonished McCormic not to drag
Respondent in to the middle of a union campaign.
In early August the Respondent ran the following ad in the
Owensboro Messenger-Inquirer which ran for a month:
ELECTRICIAN & helpers for industrial work. Experi-
enced in controls & installing conduit. P.O. Box 1306,
Owensboro, KY 42302.
On August 10, in response to the ad, Roger Daniel and
Rodney Albin, who had just been laid off from Wagner-
Smith Electric, a well-known union company, applied for
employment in person at Respondent’s facility. Both are
journeyman electricians and members of IBEW Local 1701
and Albin wore an IBEW T-shirt. They asked a secretary if
Respondent was still accepting applications for employment
and were told ‘‘yes.’’ Both men completed and submitted
their applications that same morning and, while at the facility
met with King. King asked Daniel where he had been work-
ing. When Daniel answered King asked who was running the
shop for Wagner-Smith. He then left and returned and asked
Daniel if he had been getting along with Harold Baggett
(Baggett is business agent for IBEW Local 1701). Daniel an-
swers yes and King said that he could never get along with
Baggett. King again left the room as Daniel and Albin com-
pleted their applications. King returned, began a conversation
with Albin and asked Albin if they were planning on causing
him any trouble. Albin responded that he was not planning
on causing anyone any trouble and they both handed their
completed applications to King. King asked Daniel how
many people did Local 1701 get an Lark Electric as a result
of the Union’s successful organizing efforts at Lark and Dan-
iel told him about seven people. King also asked whether
they were taken into Local 1701 as journeymen or appren-
tices and Daniel responded, ‘‘[B]oth.’’
As a part of his employment history, Daniel listed Wag-
ner-Smith, Fluor Constructors International and Lark Electric
Co. as prior employers. Albin listed Wagner-Smith, Gallo-
way Electric, and Industrial Contractors. These contractors
were all known by King to be union companies.
On August 11, Timothy Blandford, Jerry Frey, and Alan
Rafferty also applied for employment at Respondent’s facil-
ity. All are members of Local 1701 and are journeyman elec-
tricians. They arrived at Respondent’s facility at 3:30 p.m.
and asked a secretary if Respondent was still accepting appli-
cations and she said, ‘‘[Y]es.’’ While Blandford, Frey, and
Rafferty were completing applications, King arrived and
asked these three applications if they were electricians. They
said they were, King left but quickly returned and asked
them where they had been working. They told him that they
were working for Tri-State Fire Protection at the new post
office and said that there was a possibility that they soon
would be laid off.
As a part of his employment history on Respondent’s em-
ployment application, Blandford listed Tri-State Fire Protec-
tion, Abell Electric Co., and Dynaelectric, all union compa-
nies. Where the application asked for other training and edu-
cation, Blandford included his apprentice needed training
through Local 1701 and he listed his position as secretary on
the executive board of Local 1701. Frey listed Tri-State Fire
Protection, Dynaelectric, and Sachs Electric as past employ-
ers. Similarly, Rafferty listed Tri-State Fire Protection,
Dynaelectric, and J. House, Inc. also union companies.
On August 15, Jerry Rogers, a member of Local 1701 and
a journeyman electrician, applied for employment at Re-
spondent’s facility. Included in his employment history on
his completed application are Swanson, Nunn, Stone Web-
ster, and IBEW Local Union 238 in North Carolina. Swan-
son-Nunn is known by King as a union contractor. Rogers,
who is now deceased, served as a business manager with
Local Union 238 from 1986 to 1992 and where the applica-
tion asked for other work experiences and special interests,
Rogers included various entries related to the Union.
Blandford subsequently made several calls to Respondent
to check on the status of his application but was told each
time that King was not in the office. None of these appli-
cants ever received any communications from King after
they submitted applications and none were hired or told that
or why they would not be hired. The ad continued to run
through August and three employees were hired in August
and three others in September and October.
On August 13, McBride met with Union Business Man-
ager Baggett and agreed to attempt to organize Respondent’s
employees and he received some blank authorization cards
and copies of Local 1701’s constitution and bylaws to dis-
tribute to Respondent’s employees. On the morning of Au-
gust 16, at the Ragu jobsite, McBride made an announcement
outside the employee breakroom in the presence of
McCormic, Manual Bennett (a supervisor), and employees
Jeff Turner and Gardner Varbel, that he had made applica-
tion for membership in IBEW Local 1701 and asked if any
of these present were interested in joining him. With the ex-
ception of Turner who asked what the IBEW was, none ex-
pressed interest. The next day McBride spoke up again and
asked electrician helper Tony Wink if he was interested in
joining. Wink asked McBride some questions before declin-
ing the invitation. Later that day McBride also talked to em-
ployee Tim Therber in the breakroom about joining the
union. Therber said he had already applied for membership
into Local 1701’s apprentice program.
On August 18, McBride spoke to employee Gerald
Snodgrass about joining the Union. Snodgrass who had
worked at Respondent since May 1993, declined because he
said he did not want to drag King into it. On August 19,
McBride again spoke to McCormic about the Union. Present
in the lunchroom at the time were two employees from Miles
Construction Management Joe Coghil, a supervisor of Re-
spondent, Gil Therber, Tim Therber, and Tim Cureton.
McBride told McCormic that he had an authorization card
for McCormic and McCormic took the card, signed it and re-
turned it to McBride when McBride asked the others present
if they wanted to sign an authorization card, no one re-
sponded. Later this same day, Supervisor Quisenberry in-
formed King that McBride had been passing out authoriza-
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1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion cards at the jobsite and that McBride had announced that
he was joining the union.
In the early evening, as McBride was at home getting sup-
per, King called and asked him to come to the office as he
needed to speak with him immediately. McBride arrived and
asked King how he was feeling and King responded that he
was not feeling very well and said, ‘‘Joe, I can’t believe
you’re doing this to me again.’’ McBride said he guess he
was. King said that he could not believe what McBride was
doing after the discussion they had had on McBride’s porch
and said, ‘‘[A] man is only as good as his word.’’ McBride
replied, ‘‘I guess that makes me an S.O.B.’’ After an ex-
change regarding McBride’s workmanship on a control
panel, King asked McBride why he sat with union employees
(from other companies), instead of Respondent’s employees.
McBride told King that he could sit with whomever he want-
ed. King asked McBride if he still planned to pursue his
union activities and McBride responded that he did. McBride
then asked King if he was he going to fire him. King said
he did not know what he was going to do and them told
McBride to report to work the next day.
Supervisor Manual Bennett, 3 days’ later, assigned
McBride to work alone in an area above a surge kettle. This
kettle operates at approximately 240 degrees in temperature
and emits a substantial amount of steam. McBride was as-
signed to work around this kettle alone. Previously, Ragu
managers had warned workers not to work around his boiling
product because of its potential danger of belching up.
On August 26, employee Gil Therber spoke with King
about a discrepancy regarding his paycheck. During the con-
versation in King’s office, King said that he heard that
Therber was trying to get an IBEW ticket. Therber said he
was not, and King told Therber that if he wanted to get a
card to go ahead but not to hurt Respondent by doing so.
On August 30, around 6:30 in the morning, McBride and
McCormic began picketing outside the Ragu plant and con-
tinued into the afternoon. They carried signs that read, ‘‘King
Electric Unfair to His Employees.’’ When they continued the
following day, King drove near their location, rolled down
his window, asked to see their picket signs, and asked if it
was okay for him to take a couple pictures. McBride and
McCormic said yes and King photographed them and the
signs and left. On September 1, Gil Therber joined McBride
and McCormic on the picket line and all three men picketed
until September 6 when they ended their picket and went in
the Ragu plant. Supervisor Bennett directed them to go to
Respondent’s facility. This went and spoke with King who
told them that their positions had been filled and that he
would call them when there was work available. King also
asked them what had he been unfair about. McCormic an-
swered that he had violated the National Labor Relations Act
and King asked what was the unfair labor practice.
McCormic did not elaborate and King asked them if they
were seeking union representation and McCormic replied that
they were not. Thereafter, McBride, McCormic, and Therber
were returned to work on September 8.
Tim Therber, who was hired on August 9, the day he ap-
plied, was working as a electrician (although he had 6 years
of experience and had wired motors and controls he was not
a journeyman, he was hired August 9 at a rate of $9 an hour
and was listed as a ‘‘helper’’), at the Ragu plant. He testified
that in late August when McBride and McCormic began
picketing, King had a meeting with all the employees on the
job in which King told him he was an open shop and said:
‘‘[T]he guys were picketing because he had not hired union
men and the union had filed charges for unfair hiring prac-
tices.’’
He also testified that he applied at the Respondent’s after
speaking with his father because they had been working out
of town and wanted to work locally. He continued working
for the Respondent, except for brief layoffs, until he was laid
off in March 1996.
On September 16, King told McBride that work was get-
ting slow and that he had to lay off McBride. No mention
was made of recall. This same day King hired Monty Hard-
man and he was placed with Miles Construction. During a
conversation with Hardman, who had limited electrical expe-
rience, King told him that a few guys were causing union
problems for Respondent. King told Hardman that Respond-
ent was not going to become a union shop, that he hoped
Hardman was not a union man. He said that Hardman would
work on the mechanical side (with Miles Construction), until
a position opened up on the electrical. On October 31 he be-
came an electrical for the Respondent at the Ragu site and
worked until he was laid off approximately November 16.
McCormic had left the jobsite early on Friday but at the start
of the workday the following Monday, September 19, King
met McCormic at the gate at the Ragu plant. King told
McCormic that he also had to be laid off for lack of work.
On October 19, Gil Therber was working on the mez-
zanine level at the Ragu plant when Supervisor Ed McMahan
informed Therber that they were not getting much done and
that it was company policy that Therber was not to talk to
union people while on the job. Therber did not respond to
McMahan.
On November 3, King informed the employees that there
would be a temporary layoff due to Ragu running out of
money for the project. Gil Therber testified that later that
day, he spoke with King near the breakroom and asked King
why was not he laid off at the time McCormic and McBride
were laid off and that King replied that Therber had not filed
any charges against him. Therber was not subsequently re-
called.
III. DISCUSSION
This proceeding involves the layoff or discharge of two
union activists and the Respondent’s apparent failure to hire
union affiliated applicants for its nonunion company, as well
as certain related alleged unfair practices including interroga-
tions and certain antiunion statements.
A. Alleged 8(a)(1) Violations
On owner King’s second visit on June 16, to McBride’s
home, King discussed the Ragu project, his need for addi-
tional electricians and helpers and his interest in having
McBride work for him again. King also asked McBride what
he would do if Local 1701 attempted to organize Respondent
again. McBride answered that he would not participate in
any organizing effort and King responded that that was ‘‘not
the answer he was looking for’’ but offered McBride a job
to begin June 22.
Here, the fact that McBride accepted the job that King im-
mediately offered after his question about McBride’s future
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1083NORMAN KING ELECTRIC
union activities does not preclude a finding that the interro-
gation was coercive, especially since the questions were by
the Respondent’s owner. King’s response that McBride’s an-
swer was not the one he was looking for does infer that King
held reservation about reemploying McBride and implies that
King would not be pleased if McBride should chose to exer-
cise his Section 7 rights.
It is well established that ‘‘the Board does not consider
subjective reactions, but rather whether, under all the cir-
cumstances, a respondent’s remarks reasonably tends to re-
strain, coerce, or interfere with employees’ rights guaranteed
under the Act,’’ Sunnyside Home Care Project, 308 NLRB
346 fn. 1 (1992). While, interrogation of employees is not
unlawful per se, in determining whether or not an interroga-
tion violates Section 8(a)(1) of the Act, the Board looks at
all the circumstances. Rossmore House, 269 NLRB 1176
(1984); Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
Under all the circumstances here, especially those noted in
Emery Worldwide, 309 NLRB 185, 186 (1992), cited by both
the Respondent and the General Counsel, I find that King’s
question and followup remark infers that he would not be
please if McBride exercised his rights and it is coercive be-
cause it implies a threat of retaliation, see Frank Leta Honda,
321 NLRB 482 (1996). In the instant case there also is a his-
tory of employer hostility towards the union, King’s remarks
were contemporaneous with his illegal refusal to hire other
union applicants (as discussed below), and, it was followed
by illegal retaliatory conduct (as also discussed herein), after
McBride in fact did chose to join the Union and to engage
in protected union activity. Accordingly, I conclude that the
Respondent’s interrogation of McBride was coercive and I
find that it is shown to be in violation of Section 8(a)(1) of
the Act, as alleged.
McCormic testified that in a conversation with King on
July 29, as he was completing the job application process,
King told him that Local 1701 had tried to organize Re-
spondent but that there was no way IBEW Local 1701 could
get Respondent to sign a contract and warned McCormic that
he might be approached by union members on the Ragu job.
King also said that all he would have to do is to go to con-
tract negotiations four times in a 1-year period and he would
make ‘‘impossible demands’’ that the union could not meet.
Then, on August 8, when King and McCormic were riding
together to the Ragu plant, King allegedly said that he did
not care whether McCormic became a member of a union or
not but admonished McCormic not to drag Respondent in the
middle of a union campaign. King testified that he merely
told McCormic, as he tells all his new employees, that he is
an open shop contractor, that unions have tried to organize
him in the past and that people may talk to him about it but
he did not address the more specific aspects of McCormic’s
testimony.
On brief the Respondent makes much of the fact that
McCormic’s investigatory affidavit doesn’t refer to ‘‘making
impossible demands’’ but says only that King said the Union
would be unable to meet Respondent’s demands and that an-
other affidavit comment states that King said the union
‘‘couldn’t force him into joining’’—that all he had to do is
negotiate four times, etc., is not logical or sensible and it
urges that McCormic’s testimony is not credible.
As stated by the Board in Redway Carriers, 274 NLRB
1359, 1371 (1985):
Given the nature of the preliminary investigation, al-
legations that a witness gave prior contradictory testi-
mony in his affidavit or that the affidavit is a more reli-
able indication of the truth than the witness’ testimony
at the hearing should be weighed carefully and with due
regard to the context in which the prior statement was
made. For example, when a witness testifies to facts
which are contained in his investigatory affidavit, a
finding of contradictory testimony, i.e., impeachment by
omission ordinarily is not warranted unless the context
of the affidavit indicates a probability that the facts
would have been included in the narrative if they were
true. Additionally, due consideration must be given for
the fact that in the present case certain words or phrases
meant one thing to one witness and a different thing to
another.
Here, I find little in McCormic’s affidavit or his choice of
words that would support an impeachment of his testimony
at the hearing and I otherwise find that he testified in a high-
ly direct and believable manner. King on the other hand, ad-
dressed his recall of the conversation in an indirect, ambigu-
ous manner with aside references about what he was ‘‘trying
to do’’ and that he knew not to ‘‘threaten’’ or ‘‘interrogate’’
anybody. Under these circumstances, I find McCormic’s tes-
timony to be more complete and reliable and I credit his re-
call over that of the Respondent’s owner.
Accordingly, I conclude that Respondent’s admonishment
that McCormic should not drag Respondent in the middle of
a union campaign is conduct aimed at restraining the em-
ployees rights to engage in union activity and that King’s
other remarks on July had the effect of conveying the im-
pression that it would be futile to support the Union or en-
gage in protected conduct and I find that both remarks vio-
late Section 8(a)(1) of the Act, as alleged.
On August 19, Supervisor Quisenberry informed King that
a control panel was ‘‘messed up,’’ that McBride had stood
up in the breakroom and announced he was going back into
the Union and had been passing out authorization cards at
the Ragu plant. King (who then couldn’t drive as he was in
a back brace because of an accident) called McBride at home
after work and told him to report to the shop immediately.
He then told McBride, ‘‘I can’t believe you’re doing this to
me again.’’ King then asked McBride why did he always sit
with the union employees and also asked him whether or not
he planned to continue his union activities. King also brought
up the subject of the panel and said McBride did not do the
job very well but when McBride gave some excuses and
asked if he was fired, King said no and told him to come
to work the next day.
As discussed above, McBride’s subjective reaction (he
thereafter began picketing) is not relevant and I otherwise
find this second interrogation contains remarks that infer
King’s displeasure with McBride’s union activities. Accord-
ingly, for the same reasons discussed above, I find that they
are coercive and in violation of Section 8(a)(1) of the Act,
as alleged.
On August 30, when McBride and McCormic began pick-
eting outside the Ragu plant, King asked to see their signs
and then asked them if it was okay for him to take a picture
of them. When McBride and McCormic said yes, King pho-
tographed them and drove away. As pointed out by the Re-
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1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent, King obviously knew the two pickets and he ex-
pressed a specific interest in their signs. Although he other-
wise did not explain or testify as to his reasons for taking
the pictures, I find that McBride and McCormic freely gave
their permission without being subjected to any apparent co-
ercion and, under these circumstances, I find that the setting
does not show a tendency to intimidate or unlawful surveil-
lance. Accordingly, I find that this allegation has not been
proven and should be dismissed.
On September 16, when Hardman was applying for a job,
King told Hardman that he had been having problems with
the Union, that Respondent was not going to become a union
company and that he hoped that Hardman was not a union
man. These statements imply a threat of retaliation against
those who engage in union activity and they violate the Act,
as alleged, see the Frank Leta Honda case, supra.
Employee Gil Therber testified that on October 18 when
he was working on the mezzanine level at the Ragu plant,
Supervisor McMahan told him that he wasn’t ‘‘getting noth-
ing done’’ and that he did not care if Therber was union or
nonunion but that it was company policy that Therber was
not to talk to union people. McMahan testified that Therber
was a good worker but that he noticed all of sudden, a week
after he came back from picketing, that he was not at his job
area. He looked for Therber and saw him coming from an-
other area where the Respondent was not working. He spoke
with King about his observation and King told him to speak
with Therber if things did not get better. McMahan again
saw Therber talking with someone away from the work area
and that he spoke with him and said he did not need to talk
so much to other contractors and that he needed to be on the
jobsite more, McMahan said he did not specifically mention
‘‘union’’ contractors but agreed that at Ragu it was ‘‘hard to
know the difference’’ (between union or nonunion contrac-
tors).
Here, I find McMahan’s testimony to be straightforward
and believable and I credit his testimony that he did not refer
to ‘‘union’’ people or contractors, I believe that Therber ac-
tually had subjectively ‘‘interpreted’’ the remark to mean
what he stated because he had been talking to a friend who
was with a union contractor. Under these circumstances there
is no objective evidence that McMahan gave Therber any
prohibition against talking to union people or contractors and
I find that no violation of Section 8(a)(1) is proven in this
instance.
On November 3, King announced a layoff of eight em-
ployees on the Ragu project. Later that day, Therber asked
King why he was not laid off at the time McCormic and
McBride were laid off. Therber testified that King answered
that he was not laid off then because he had not filed any
charges against Respondent. King testified that he did not
have such a conversation with Therber and that he did not
make that remark and added that he ‘‘would never say such
a thing.’’ He also explained how Ragu had run out of budg-
eted funds to finish the project and that he selected employ-
ees for this reason only.
Based on some of his other testimony, I am not persuade
that King ‘‘would never say such a thing’’; however, in this
particular instance neither am I persuaded that Therber’s tes-
timony is trustworthy. There are no corroborative cir-
cumstances from which to draw support and, accordingly, I
am not convince that the alleged statement was actually
made. Under these circumstances, I cannot conclude that the
General Counsel has met his burden of proving a violation
of the Act and, according, this allegation also will be dis-
missed.
B. Failure to Hire
The Respondent cites the recent decision of the Sixth Cir-
cuit in NLRB v. Fluor Daniel, Inc., 102 F.3d 818 (1996),
which rejected (in part) the Board’s decision and analysis in
Fluor Daniel, Inc., 311 NLRB 495 (1993), and sets forth it
own holding that:
In a refusal to hire case alleging an unfair labor prac-
tice in violation of Section 8(a)(1) and (3) of the Act,
we hold the General Counsel’s prima facie case will
consist of proving . . . . that the applicant actually ap-
plied for a job and was qualified for a job for which
the employer was seeking applicants; despite his quali-
fications the applicant was not hired; anti-union animus
contributed to the decision not to hire an applicant and
after his rejection, the position remained open and the
employer continued to seek applicants from persons
with the applicant’s qualifications.
The Respondent further contends that under this prima facie
scheme, the General Counsel is required to ‘‘match up’’ ap-
plicants with available jobs for which they are qualified.
The Board has endorsed a causation test for cases turning
on employer motivation, see Wright Line, 251 NLRB 1083
(1980); see NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), however, as noted in Administrative Law
Judge Daughtery dissenting opinion in the Fluor Daniel case,
supra, the foundation of Section 8(a)(1) and (3) ‘‘failure to
hire’’ allegations rest on the holding of the Supreme Court
that an employer may not discriminate against an applicant
because of that person’s union status, citing Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 185–187 (1941).
Here, I find that it would be improper for me to rely on
a court of appeals decision instead of relevant Board deci-
sions on the issues, see Waco, Inc., 273 NLRB 746, 749 fn.
14 (1984), in which the Board emphasized that ‘‘it is a
judge’s duty to apply established Board precedent which the
Supreme Court has not reversed’’ citing Iowa Beef Packers,
144 NLRB 615, 616 (1963). See also Ford Motor Co., 230
NLRB 716, 718 fn. 12 (1977), enfd. 571 F.2d 993, 996–1002
(7th Cir. 1978), affd. 441 U.S. 488, 493 fn. 6 (1979), and
TCI West, Inc., 322 NLRB 928 (1997). Accordingly, I shall
follow the Board’s precedent on the issue and I find that the
Board’s application of the test set forth in Fluor Daniel, Inc.,
304 NLRB 970 (1991), and KRI Constructors, 290 NLRB
802, 811 (1988), and case cited therein to be controlling.
Based on this precedent it is found that a prima facie case
for an employer’s unlawful refusal to hire a job applicant is
established by the General Counsel when (1) an individual
files an employment application, (2) the employer refused to
hire the applicant, (3) the applicant is or might be expected
to be a union supporter, (4) the employer has knowledge of
the applicant’s union sympathies, (5) the employer maintains
animus against union activity, and (6) the employer refuses
to hire the applicant because of such animus. Moreover, in
order to rebut the General Counsel’s prima facie case, the
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1085NORMAN KING ELECTRIC
2 R. Exh. 5, a list of employees and wage rates in 1994, list 13
journeymen of which 5 (including McBride) had start dates prior to
July. It also lists 14 helpers, 5 of which had employment dates in
June or earlier and 5 of which were hired in July.
employer must establish that the applicant would not have
been hired absent the discriminatory motive.
Here, the record shows that in June 1994 the Respondent
got a contract for a project that was expected to require the
services of approximately 20 additional electricians and help-
ers. It hired some helpers and it sought out and hired
McBride in late June and McCormic in late July. It then ran
a newspaper ad throughout August seeking experienced elec-
tricians and helpers for industrial work. Electricians Daniel
and Albin (both then unemployed) answered the ad in person
on August 10 and electricians Blandford, Frey, and Rafferty
(who all told King they expected to be laid off shortly from
their current jobs), personally applied for the jobs on August
11 and electrician Rogers applied on August 15. Blandford
made several followup calls but was told only that King was
not in his office. None of the electricians received any com-
munication from the Respondent about the job and none
were hired.
The record shows that each of these six applicants clearly
were identified in their application as union members with
their most recent past experience with companies known to
be union contractors by the Respondent. Moreover, five of
the six had personal conversations with King that clearly
demonstrated that he knew of their union affiliations. The
record also shows that during this same time period, on June
16, July 29, and August 19, Owner King engaged in other
communications with employees that were in violation of the
Act (see the discussion in part A, above) and I find that the
record clearly shows that the Respondent maintained animus
against union activity.
Under these circumstances the mere fact that King’s
sought out and hired McBride, a known former union mem-
ber, does not belay Respondent’s animus, especially since it
was accompanied by unlawful statement that coercively im-
plied that King would not be pleased if McBride engaged in
any union activities. Also, it appears that McBride accepted
the job because it was closer to home than his then current
job.
The fact that the Respondent continued running its ad
throughout August and the in-person responses to the appli-
cants, who were all told that the Respondent was still accept-
ing applications, clearly refutes any argument by the Re-
spondent that positions were not available and it is clear
from King’s own testimony that in June he had 10 to 12
electricians and helpers but needed about 202 for the project.
In addition to hiring McBride (on June 22), McCormic (Au-
gust 8), and Gil Therber (hired July 28 to start August 6) as
journeyman and Tad Therber as a helper, Tim Cureton (Au-
gust 16), Jeff Jones (October 21), Alan Hofnagle (October
21), and Jeff McManaway (August 3); Jimmy Stewart (Au-
gust 8) and Tim Cureton (August 16) were hired as journey-
men and several additional helpers also were hired. More-
over, it appears that the electricians on the job worked over-
time in August and September, which supports an inference
that additional employees were needed.
Here, the General Counsel has persuasively met its tradi-
tional burden and, in addition, has present clear evidence
which also appears to satisfies the circuit court’s requirement
in Fluor Daniel, supra, inasmuch the six applicants are
shown to be qualified for the advertised jobs, they were told
applications were still being accepted and several journey-
men (and helpers) were hired (some on the day they applied)
after the six applicants responded to the ad on August 10,
11, and 15.
The Respondent attempts to justify its failure to contact or
hire these applicants by arguing that it did not consider them
for employment because their wage history showed earnings
which were more than Respondent paid its experienced elec-
tricians, because King normally tries to hire a currently un-
employed electrician as he will stay longer and because they
were already working for other electrical contractors at the
time they applied. This latter contention does not explain
King’s failure to consider Albin and Daniel who informed
King that they were not employed at the time they applied
at Respondent. Second, King hired McBride, Gil Therber,
and Hofnagle while they were still working for other contrac-
tors and, moreover, King otherwise testified that the job was
to be for only a short duration. It also is shown that King
otherwise negotiated some of the wage levels of the elec-
tricians he did hire. Under these circumstances it is recog-
nized that factors such as unemployment as in the case of
Daniel and Albin (and Blandford, Fray, and Rafferty ex-
pected to be laid off), or convenience in commuting distance
can influence an applicant’s willingness to take a lesser wage
than sought or previously held. Here, King made no attempt
to negotiate a wage rate and no minimum rate was ever com-
municated and contrary to the Respondent’s argument in this
respect, without more, it cannot be presumed, that a union
affiliated applicant would automatically be disqualified be-
cause of wage expectations and its excuses in this respect ap-
pear to be more pretextual and indicative of an unlawful mo-
tive for his lack of any consideration then persuasive of any
legitimate business reason that would refute the General
Counsel’s showing. King also explained that he did not hire
Rafferty, because his application noted he was restricted to
lifting materials of no more than 25 pounds and that spools
of wire and unbroken bundles of conduit weight more than
that as do a lot of journeyman’s tool boxes. Otherwise, how-
ever, it appears that the helpers on the job do much of the
lifting of spools (and running of cable), that conduit can be
separated from its bundle and that King made no further in-
quiry about the nature of Rafferty’s limitation to see if in
fact he would not be suitable for the job. In fact, it is not
established that King saw this limitation and actually evalu-
ated it in August as a reason for not considering Rafferty’s
application further.
Otherwise, the record shows that all of the persons King
hired between June and October 1994 were hired either be-
fore they completed an application or at the same time the
applicants completed applications. Here King had the oppor-
tunity to speak further with these six applicants. If he in-
tended to consider them he could have asked any questions
he had with the applicants at that time but he did not. The
Respondent also argues that the hiring criteria King used:
past wage rates, likelihood that an employee would leave,
King personal familiarity with the applicant’s skills or rec-
ommendation from another employee were legitimate and not
indicative of unlawful motivation. As noted above, however,
some of these criteria are suspect, at best, and they otherwise
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1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Again, this would appear to be contrary to King’s policy pref-
erence to agree to hire those who were unemployed.
described hiring procedures based on subjective criteria relat-
ed to Kings personal feelings about their desirability and
their reference from his own non-union employees. The prac-
tical effect of this procedure allows King to selectively pick
a nonunion work force and it precluded the employment of
union members (except McBride who otherwise was illegally
questioned and warned about engaging in protected activity),
as King saw fit.
Here, the record shows that the applicant pursued a pattern
or practice by which is systematically ignore or declined to
consider any obvious union member and relied on criteria
that effectively discounted its public request in newspaper
ads for electricians experienced in controls and installing
conduit. There is no indication that it hired any electricians
at all in response to its publicized ad procedure and, under
these circumstances, I fined that the Respondent has failed
to persuasively rebut the General Counsel’s prima facie
showing of unlawful motivation. Accordingly, I find that the
General Counsel has met his overall burden and shown that
the Respondent’s failure and refusal to consider and hire the
six discriminatees named above violated Section 8(a)(3) and
(1) of the Act, as alleged, see P.S.E. Concrete Forms, 303
NLRB 890 (1991).
To the extent that the Respondent argues that it did not
need and would not have hired all of the six applicants even
if it has chosen to consider these applicants for employment
on the Ragu project, the matter of the specific number of
jobs is relevant to the compliance stage of this proceeding
and does not affect the basic determination of the illegality
of its practice inasmuch as these clearly were some jobs
available at the time the six applications were ignored.
C. Other Alleged Violations of Section 8(a)(3)
On August 22, Supervisor Bennett assigned McBride to
work over a surge kettle that emitted a substantial amount of
steam when it is operating. McBride had never been assigned
to work around his specific kettle alone during any previous
time that he had worked for Respondent at the Ragu plant
and he asserted that Ragu supervisors had warned workers to
avoid workers near this kettle when it was operating because
of its potential danger of belching up. This assignment was
made 3 days after Supervisor Quisenberry informed King
about McBride’s passing out authorization cards at the work
place and after King has summoned McBride from home to
Respondent’s facility where King had questioned McBride
about his union activity. Inasmuch as the General Counsel
has established animus, as discussed above, I find that these
facts are sufficient to support an inferences that the change
to more onerous work assignment was motivated by
McBride’s union activities and the burden thus shifts to Re-
spondent to defend its action.
As pointed out by the Court, in Transportation Manage-
ment Corp., supra:
[A]n employer cannot simply present a legitimate rea-
son for its action but must persuade by a preponderance
of the evidence that the same action would have taken
place even in the absence of the protected concerted ac-
tivity.
Here, the Respondent asserts that its employees who are rou-
tinely assigned to hot, steamy areas of the plant enjoy a re-
laxed rest break policy and that the assignment, involving
running conduit between the surge kettle and wiring the con-
trol panel that McBride was working on and it was com-
pleted in less than a day. It also points out that McBride
made no complaint at the time that the assignment was un-
safe or undesirable.
McBride specifically testified that he had never worked
‘‘alone’’ near the surge kettle when it was operating which
leads to the inference that he had done so before but with
a helper. There is no indication that he requested a helper
or otherwise raised any problem at the time and inasmuch as
the controls and conduit tied into the very control panel that
he was working on I find nothing unusual or onerous in the
assignment. I find, that the Respondent has shown that it
would have taken the same action regardless of incident be-
tween King and McBride 3 days’ earlier and I conclude that
the allegations of this charge have not been proven and
should be dismissed.
On September 16, King told McBride that he was being
laid off because work was getting slow. The following Mon-
day, September 19, King met McCormic (who had left work
at noon the previous Friday) at the gate and had the same
conversation.
Both employees had engaged in union activity, including
picketing, but had returned to work on September 8 and the
timing of their layoff about 1 week later and the animus dis-
cussed above, are sufficient to support the inference that the
layoff’s were illegally motivated. King explained that
McBride was chosen for layoff from Respondent because of
his poor work on the control panel, and that the work on the
panel was sloppy and did not meet McBride’s normal high
quality. McBride admits that there were problems in com-
pleting the control panel but implied that it was because of
long hours, short work deadlines, and the lack of equipment
needed to best perform work on the panel. Employee
Snodgrass testified that in view of Ragu’s push to finish the
job and the lack of a working ‘‘Brady marker’’ to properly
prepare the labels for the panel, he thought that McBride per-
formed the job as best he could under the circumstances.
Most significantly, at the time King ended McBride’s em-
ployment, King never raised the subject of the control panel
and McBride’s performance. He asserts, however, that this
poor performance was the reason McBride was selected rath-
er than someone else.
King stated that McCormic was selected for layoff because
McCormic became upset when King named Cureton as stand
in supervisor instead of naming McCormic and King felt that
‘‘I need people that’ll roll with me on my decisions. I don’t
need people that go against my decision.’’
On brief the Respondent also discusses a range of other
reasons that allegedly support its selection of McCormic and
McBride including: that McBride’s control panel was fin-
ished that McCormic had just a brief tenure with the com-
pany, that the job was a short term project that was ‘‘ap-
proaching substantial completion,’’ that overtime had been
reduced as well as part-time work on its other ‘‘school’’
project, and that new employees Hofnagle was hired October
31 because of a prior promise by King to hire Hofnagle
when he finished working at another job,3 that the Com-
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1087NORMAN KING ELECTRIC
pany’s jobs have ‘‘ebbs and flows,’’ that Hofnagle worked
only 4 days before being laid off that while Jones also was
hired October 24 and ‘‘may have performed electrical work
from time to time’’ he was hired especially to perform pro-
gramming function and he was not laid off when the project
was shut down, and that King had close ties to employees
Tim Cureton and Jimmy Stewart, who each has less tenure
with the Company than McCormic.
On this record there is no evidence that King knew of the
specific detailed allegations of ‘‘sloppy, shoddy, unpro-
fessional ‘work’ in complete disregard for the interest of the
company’’ on the control panel at the time he selected
McBride for layoff. King testified only as follows:
A. Alvin Quisenberry, my supervisor, told me that
there was a panel that was messed up and that Joe
McBride was the one that had did the wiring of it.
Q. Did he tell you what the nature of the problem
was?
A. He told me that there was wires that were loose
under the screws in the terminal strip, some of the
wires were mistagged, in the wrong location, and it was
just a very bad cosmetic, it did not look good, a very—
you know, the panel was not put together like we’d
been used to having or seeing Joe McBride put a panel
together.
Q. Did Alvin report to you whether it was functional
or non-functional?
A. He said they finally got it to work. He had to stay
out there with the engineers and trouble-shoot it and
work on it, I’m thinking, an extra—he stayed with it for
a lot of hours, just trying to trouble-shoot it and get it
up and running to get it to operate.
Quisensberry testified as follows:
Q. Did you make any report of these problems to
anyone?
A. I did report the IQ panel to Mr. King.
Q. And what report did you make to Mr. King?
A. It let the—I let Norman know that we had—you
know, there was problems, there was wires that the
screws were loose, you know, wires that were termi-
nated under loose screws and not tightened up, and,
also that we had problems with the analog wiring that
was wrong.
This is the only testimony that relates to any knowledge
King had of McBride’s panel problem at the time he was se-
lected for layoff and I am not persuaded that King had any
further knowledge of the extent or details of McBride’s al-
leged poor workmanship. As discussed above, King spoke
with McBride about the control panel on August 18, at the
same time he questioned him about Quisenberry’s report
above McBride’s renewed union activities. King told
McBride he heard about a ‘‘panel mess up’’ and asked him
what he was doing. After McBride explained that it was hot
and he was working a bunch of overtime, he asked if he was
being terminated but King said, ‘‘no’’ and had him report
back to work the next day.
During the interval between King’s discussion with
McBride about the control panel and the layoffs of Septem-
ber 16, McBride, McCormic, and Therber began (and ended),
their picketing.
McCormic’s selection for layoff was said to be because he
became upset when he was passed over to be acting super-
visor (a position he had previously been given in the super-
visor’s absence). This would not appear to be a negative at-
tribute (McCormic made no big fuss about it), and it does
not appear to be a competing reason to downgrade an em-
ployee’s value. Accordingly, I am not persuaded that the Re-
spondent would have selected either McBride and McCormic
for layoff even in the absence of their recent protected pick-
eting activity.
Moreover, it does not appear that the Ragu customer ran
over budget and notified the Respondent that it was going to
curtail some of the planned project until a week or two after
these two were laid off, just prior to King’s announcement
on November 3, that there would be temporary layoff for this
reason. Accordingly, King’s reasons for having two layoffs
on September 16 and 19 are not convincing.
Under all these circumstances, I find the Respondent’s
overall justification for its action to be weak and
unpersuasive. Accordingly, I conclude that the Respondent
has not shown that it would have selected McBride and
McCormic for layoff on September 16 and 19, prior to the
customer’s decision to curtail some of the project, in the ab-
sence of McBride’s union activities and McCormic’s support
thereof and I further conclude that the General Counsel has
shown that this conduct violates Section 8(a)(1) and (3) of
the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 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. By interrogating an employee about his intentions re-
garding union activity; implying that the owner would not be
pleased by any union activities; admonishing an employee
not to drag the Company into a union campaign; implying
that it would be futile to support the Union; and telling a
new employee that the Company had problems with the
Union and would not be a union and hoped the employee
was not a union man; Respondent has interfered with, re-
strained, and coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act, and thereby has
engaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
4. By discriminatorily laying off employees because of and
in retaliation for engaging in picketing, union activity, or
other protected concerted activities, the Respondent has vio-
lated Section 8(a)(3) and (1) of the Act.
5. By engaging in a pattern or practice of screening job
applicants to determine suspected union sympathizers and re-
fusing to consider applicants for employment based on pre-
vious employment with union businesses or for other sus-
pected union sympathies, Respondent discriminated in regard
to hire in order to discourage union membership in violation
of Section 8(a)(3) and (1) of the Act.
Except as found herein, Respondent otherwise is not
shown to have engaged in conduct violative of the Act as al-
leged in the complaint.
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1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative ac-
tion set forth below to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that the Respondent be ordered to make employ-
ees Robert McBride and Thaddeus McCormic whole for any
loss of benefits they may have suffered because of the dis-
crimination practiced against them by their premature layoff
by payment to them a sum of money equal to that which
they normally would have earned in accordance with the
method set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
It having been found that the Respondent unlawfully dis-
criminated against job applicants including Rodney Albin,
Timothy Blandford, Roger Daniel, Jerry Frey, Alan Rafferty,
and Jerry Rogers, based on their suspected union sympathies,
it will be recommended that Respondent make such employ-
ees whole for any loss of earnings they may have suffered
by reason of the failure to give them nondiscriminatory con-
sideration for employment, by payment to them of a sum of
money equal to that which they normally would have earned
in accordance with the method set forth in F. W. Woolworth
Co., supra, with interest as computed in New Horizons for
the Retarded, supra.4
Other considerations regarding the remedy and the specif-
ics of the relief granted must wait until the compliance stage
of the proceeding, see Fluor Daniel, Inc., 304 NLRB 970,
981 (1991), and Dean General Contractors, 285 NLRB 573,
573–574 (1987). Otherwise, it is not considered necessary
that a broad Order be issued.
[Recommended Order omitted from publication.]
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