Primo Electric

National Labor Relations Board - Board Decisions

Oct 24, 2005

345 N.L.R.B. 1187 (N.L.R.B. 2005)

PRIMO ELECTRIC
345 NLRB No. 99
1187
Integrated Electrical Services, Inc., d/b/a Primo Elec-
tric and International Brotherhood of Electrical
Workers, Local 24, AFL–CIO. Case 5–CA–
31829
October 24, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 10, 2005, Administrative Law Judge Eric
M. Fine issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs,1 and has decided to affirm the judge’s rulings,
findings,2 and conclusions, as discussed below, and to
adopt the recommended Order as modified.3
The judge found that Respondent Primo Electric vio-
lated Section 8(a)(3) and (1) by terminating the employ-
ment of master electrician William Hughes on October
10, 2003, because he engaged in protected union activ-
ity.4 We agree. Under the analysis established in Wright
Line,5 the judge found that the General Counsel showed,

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, some of the Respondent’s
exceptions imply that the judge’s rulings, findings, and conclusions
demonstrate bias and prejudice. On careful examination of the record,
we are satisfied that the Respondent’s contentions are without merit.
3 We will modify the judge’s recommended Order in accordance
with the Board’s standard remedial language for employer unfair labor
practices.
4 All dates are 2003, unless otherwise indicated.
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). To prove a violation of Sec. 8(a)(3) under
Wright Line, the General Counsel must first show discriminatory mo-
tive, by a preponderance of the evidence, by offering evidence that the
employer was aware of the employee’s protected activity and that ani-
mus against that activity motivated the employer’s alleged discrimina-
tion. The burden then shifts to the employer to demonstrate that the
same action would have occurred even in the absence of protected
conduct. See, e.g., KFMB Stations, 343 NLRB 748, 751 (2004).
Chairman Battista concurs in the result, albeit with a different ra-
tionale. It is clear that the Respondent’s reasons for the discharge were
the distribution of the prounion CD and the alleged lying about it. Thus
the issue is not motive but rather whether Hughes engaged in miscon-
duct during the course of that union activity, i.e. whether the distribu-
tion was on work time. Accordingly, the Wright Line test for determin-
ing motive is unnecessary. Compare, Banta Catalog Group, 342
NLRB 1311 (2004), where the employer’s asserted reason was “pretex-
by a preponderance of the evidence, that Hughes’ pro-
tected activity was a motivating factor in the Respon-
dent’s decision to discharge him.6 The judge further
found that the Respondent’s alleged nondiscriminatory
reasons for discharging Hughes were pretextual and that
the Respondent would not have discharged Hughes in the
absence of his protected activity.7
In adopting the judge’s conclusions, we note the
judge’s finding that Respondent’s human relations direc-
tor, Darcia Perini, at the time she fired Hughes, did not
have a good-faith belief that he had engaged in miscon-
duct. Despite this finding, the judge, citing NLRB v.
Burnup & Sims, 379 U.S. 21, 23 (1964), and Keco Indus-
tries, 306 NLRB 15, 17 (1992), alternatively found that
even if Perini did have such a good-faith belief, Hughes’
discharge would be unlawful because Hughes was en-
gaged in protected activity and did not engage in mis-
conduct. In light of the judge’s initial finding that Perini
did not have a good-faith belief that Hughes had engaged
in misconduct, we find that Burnup & Sims and its prog-
eny do not apply to the facts of this case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Inte-
grated Electrical Services, Inc., d/b/a Primo Electric,
Glen Burnie, Maryland, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(b).
“(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
James C. Panousos, Esq., for the General Counsel.

tual.” Rather, the issues are (1) whether the Respondent had a good-
faith belief that Hughes engaged in the misconduct and (2) if Respon-
dent had such a belief, whether Hughes in fact engaged in the miscon-
duct. See Rubin Bros. Footwear, 99 NLRB 610 (1952) (as here, an
8(a)(3) case). In the instant case, the Respondent did not even show
that it had a good-faith belief that Hughes engaged in misconduct.
6 Member Schaumber agrees that the General Counsel established a
prima facie case of discrimination under Wright Line. In so finding,
Member Schaumber finds it unnecessary to rely on the September 2
OSHA complaint as evidence of Respondent’s antiunion animus.
7 In finding pretext, the judge relied, in part, on testimony about a
statement made by Respondent’s counsel during an interview with
employee Clayton Bester. The Respondent excepted to admission of
the testimony on the grounds that the statement was protected by the
attorney-client privilege and the work-product doctrine. We find suffi-
cient evidence in the record, aside from the disputed testimony, to show
that Respondent’s justifications for discharging Hughes were pretex-
tual. We therefore find it unnecessary to rely on the disputed testimony
or to decide whether the statement was privileged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1188
Douglas M. Nabhan, Esq. and Aaron S. Walters, Esq., of
Richmond, Virginia, for the Respondent.
John M. Singleton, Esq., of Owings Mills, Maryland, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was tried
in Baltimore, Maryland, on September 28 and 29, 2004. The
charge was filed on March 24, 2004, by the International
Brotherhood of Electrical Workers, Local 24, AFL–CIO (the
Union or Local 24) against Integrated Electrical Services, Inc.,
d/b/a Primo Electric (Respondent). The complaint issued on
June 21, 2004, and alleges, as amended at the hearing, that
Respondent violated Section 8(a)(1) and (3) of the Act by dis-
charging its employee William Hughes on October 10, 2003,
because he joined, formed, and/or assisted the Union and en-
gaged in concerted activities, and to discourage employees
from engaging in these activities.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT2
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness in Glen Burnie, Maryland, has been engaged in the busi-
ness of providing electrical and communications services. Dur-
ing the past 12 months, a representative period, Respondent
performed services valued in excess of $50,000 in States other
than Maryland. Respondent admits and I find it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that Local 24 is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At the time of the hearing, Darcia Perini was working for
Respondent as a human resource director and facilities security
supervisor. Perini oversees Respondent’s hiring and firing of
employees. Perini testified that she conducts investigations for
possible terminable offenses, and she made the decision to
discharge Hughes. Respondent admits that Perini, Richard Plitt,
division superintendent, Keith Hogge, superintendent, and Mi-
chael Gunzelman, foreman/superintendent are, at times rele-
vant, its supervisors and agents within the meaning of Section
2(11) and (13) of the Act.

1 All dates are in 2003, unless otherwise specified.
2 In making the findings herein, I have considered all the witnesses’
demeanor, the content of their testimony, and the inherent probabilities
of the record as a whole. In certain instances, I have credited some but
not all of what a witness said. See NLRB v. Universal Camera Corp.,
179 F.2d 749, 754 (2d Cir. 1950), reversed on other grounds 340 U.S.
474 (1951). All testimony has been considered, if certain aspects of a
witnesses’ testimony are not mentioned it is because it was not credited,
or cumulative of the credited testimony set forth above. Further discus-
sions of the witnesses’ testimony and credibility are set forth through-
out this decision as warranted.
A. Respondent’s Employment of William Hughes Sr.
Hughes is a member of Local 24. Hughes started his union
apprenticeship in 1964, and has been a licensed master electri-
cian with the State of Maryland for 25 to 30 years. Hughes
started his own business, a nonunion company, in the 1980s.
Hughes rejoined Local 24 in 2001 or 2002, as a journeyman
wireman, and remained a member in good standing. Hughes
has not held union office. Hughes is in his early 60s and had
been diagnosed with asbestosis in the beginning of 2003.
Hughes illness limits his lung capacity, but he maintained that,
“I can work just like anybody else.” As a result of his condi-
tion, Hughes began using an inhaler three to four times a day
while working for Respondent. Despite this diagnosis, Hughes
also smoked around a pack of cigarettes a day while in Respon-
dent’s employ.
Local 24 Assistant Business Manager Roger Lash told
Hughes Respondent was hiring and Hughes applied for em-
ployment around mid-July. Before starting to work for Respon-
dent, Hughes received organizer training by attending Local 24
classes. Hughes testified that, during the classes, he was told
concerning handing out union materials that “[i]t was always to
be done off the work site, and before work or after work.”
Hughes was instructed in the training to keep a log about occur-
rences at his employer, and he testified that he kept such a log
while employed by Respondent where he made the entries on a
daily basis after work.
Hughes was hired by Respondent and began work on August
11. At the outset of his employment, Hughes was given a copy
of Respondent’s employee handbook. Section 6.2 of the hand-
book is entitled, “Unacceptable Job Performance and Discipli-
nary Action.” It provides in pertinent part that “[f]ailure to
comply with any of the following rules may subject the em-
ployee to disciplinary action, up to and including termination.”
The provision goes on to state, “Some of the prohibited activi-
ties/conduct which may lead to disciplinary action include but
are not limited to:” and among those items listed is “Dishon-
esty.” The handbook provides that “[a]ll unacceptable behavior,
as determined solely by Primo, may lead to immediate dis-
missal from employment. However, to the extent possible,
Primo will seek to provide employees with a verbal and/or
written warning prior to dismissal for unacceptable job per-
formance or a violation of work rules.” The handbook also
contains a no-solicitation and no-distribution rule.3 Respon-
dent’s handbook section 9.10 is entitled, “Unions.” It reads in
pertinent part:
Primo does not have a union; therefore, no one is re-
quired to be a member of a union to work here. Employees
have been satisfied with this arrangement. There is no dis-
crimination because a person is or is not a union member.
All employees are treated fairly, and an employee who
is now a member or becomes a member of a union in the
future should expect no more than an employee who is not

3 Both counsel for the General Counsel and the Union stated that
they were not placing the lawfulness for Respondent’s solicitation and
distribution rule at issue in this proceeding, and counsel for the General
Counsel repeated this assertion in his posthearing brief.
PRIMO ELECTRIC 1189
a union member. Unions have provided none of the sala-
ries and benefits at Primo, and it is not expected that they
will help improve any benefits in the future. What the fu-
ture can be and the success that will come will depend on
what each employee does, individually and collectively,
with his or her opportunities.
Solicitation will be allowed consistent with Primo’s
policy as reflected in section 10.8 of this Handbook. How-
ever, intimidation or coercion of any employee for any
reason will not be condoned. Primo will resist any efforts
to bring a union into the Company by all legal means at its
disposal.
On August 12, Hughes’ first day in the field, Hughes was as-
signed to Respondent’s Naval Academy jobsite, where he
worked on revamping the temporary lights and outlets. He was
working with one other employee at the time. While Hughes
was at the Naval Academy, he received his assignments from
Foreman Kendall Lemons. Hughes’ log reveals, as confirmed
by his testimony, that at the end of the day, Lemons told
Hughes and the other employee, that not enough work had been
completed, and that they had to work harder and faster tomor-
row. On August 14, Lemons also told Hughes and his coworker
that they were not working fast enough.
Hughes’ log reveals that on August 19, Hughes and Lemons
were transferred to Respondent’s Naval Stadium site. At that
job, Lemons was working with his tools, and Gunzelman was
the foreman. Hughes wrote in his log that Gunzelman “was not
liked by anyone. He demeans most everyone at least once a
day. Really arrogant and nasty.”
Hughes testified that “[h]e hollered, screamed, carried on,
called people names. He demeaned people day in and day out.”
Hughes testified Gunzelman did this to everyone. Hughes
worked on skyboxes at the stadium where he installed fluores-
cent lighting, and hooked up heaters and air-conditioners.
On August 21, Hughes’ log reflects that Gunzelman made
two “nasty remarks” to Hughes in the morning, but that later in
the day Gunzelman complemented the quality of Hughes’
work. Hughes notes read that, “[a]t this time I said to him that
that was the first nice thing he has said to me. I then said that I
thought he had a personality problem with me. I then told him
I’m not able to run around like the 20 year olds he has but I
work steady all day long. He seemed fine with this and I didn’t
see him the rest of the day.” Hughes’ log reflects that he be-
came ill from the heat on August 22, and that he left work at
lunchtime.
Hughes had no daily log for August 26.
1. On August 27, Hughes is sent home for wearing
a union T-shirt
Hughes, daily log reveals that on August 27, he reported to
work wearing a union T-shirt at the Naval Stadium. The shirt
names Local 24, and states “UNION YES.” The shirt reads,
“ASK ME ABOUT MY UNION,” and provides a phone num-
ber for employees to call.
It states, “FAMILY HEALTH CARE, PAID RETIRE-
MENT, HIGHER WAGES, AND JOB SAFETY.” Hughes
testified that, until that time, Respondent’s personnel did not
know he was for the Union. Hughes arrived at the jobsite at
6:30 a.m. on August 27. Hughes walked on to the site with the
T-shirt on. Hughes credibly testified to the following: Around
10 employees were at the jobsite along with Gunzelman when
Hughes arrived.4 The employees looked at Hughes, but did not
say anything about the shirt. However, Gunzelman came over
and told Hughes to take the T-shirt off. Hughes said he would
not do so, and Gunzelman told him that he had to leave the job
and go home. Hughes asked if he was being fired, and Gunzel-
man said no, but he had to go home and take the shirt off before
returning to work. Hughes said that if he went home, he would
not take the T-shirt off, but that he would come back with the
same shirt on. Hughes then left. Half of the employees at the
site were not wearing company T-shirts, and one of the em-
ployees had a shirt with an Ocean City logo. Around three other
employees had noncompany logos on their shirts, although
Hughes could not recall what they said. Hughes’ daily log re-
veals that after Hughes told Gunzelman that Hughes was not
going to take off the union shirt, Gunzelman handed out “Primo
T-shirts” to everyone but Hughes. Hughes testified that Gun-
zelman handed Primo shirts out to the five or six people who
were not wearing them.
Hughes testified he received a phone call the morning of
August 27 at home around 8 or 8:15 a.m. from a woman. The
caller said Hughes should not have been sent home, and that he
was to return to work the next day. Hughes credibly testified he
was told to report to the Naval Academy rather than the Naval
Stadium. Thereafter, Hughes wore a union T-shirt to work
every day. Hughes’ log reveals the caller was Sandy Barcia,
and Hughes was told he would be paid for the day.
Respondent’s Witnesses
Gunzelman testified he has been with Respondent for 23
years and he was familiar with Respondent’s policies. Gunzel-
man testified Hughes came to work with a union shirt on. Gun-
zelman asked Hughes to remove it and wear one of Respon-
dent’s shirts. Gunzelman testified he did this because everyone
in his group “pretty much wears the Primo Electric shirt.” Gun-
zelman reviewed the company manual and testified, “It said
that you’re not allowed to wear other types of shirts, just your
logo.” However, Gunzelman later testified, as to whether em-
ployees wore Primo shirts all the time, “They have them.
Sometimes they’re clean.” Gunzelman testified he offered
Hughes one of Respondent’s shirts, but he said he would not
wear it, so Gunzelman sent Hughes home. When asked if he
gave five or six shirts out, Gunzelman testified there were only
three people on the jobsite. After he sent Hughes home, Gun-
zelman reported the incident to the project manager. After that,
Gunzelman was told Hughes would be back tomorrow and that
he was allowed to wear the union shirt. Gunzelman testified
Hughes returned to the jobsite the next day, and that he worked
there for the next 2 weeks. Gunzelman testified after Hughes
was brought back, Gunzelman made no announcement to the
employees that they were allowed to wear union T-shirts. Gun-
zelman testified he thought Respondent’s policy was employees
were required to wear a Primo shirt or a shirt with no writing,
or be sent home.

4 Hughes’ daily log reflects that there were 12 employees on the job.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1190
Respondent’s employee handbook states under article 10.10
Dress Code:
Under no circumstances are articles of clothing with logos or
any advertisement of any kind, other than IES or Primo, al-
lowed. If you show up for work wearing any of the above,
you will be required to change or else you may be sent home
for the day.
Contrary to Gunzelman, Perini testified Respondent did not
have a uniform policy or T-shirt policy that applied to Hughes.
She testified Respondent’s uniform policy applied to people
working in Respondent’s service division, and that Hughes was
not in the service division. Perini testified she received a call
from Gunzelman’s supervisor, and she was told Gunzelman
sent Hughes home for wearing the union shirt. Perini testified
she responded Hughes had to be brought back immediately.
Perini testified she reviewed her decision with Robert Wilson,
Respondent’s president. Perini testified it was she who called
Hughes to tell him to return to work on August 28.
I have credited Hughes’ account of what transpired on Au-
gust 27, over that of Gunzelman. First, Hughes’ account was
corroborated by his daily log. The log is fairly detailed, and
also contains statements against Hughes’ interest, such as his
supervisor telling him he was not working hard and fast
enough. Second, since Perini admitted Respondent had no pol-
icy requiring field employees to wear company shirts, I find
Hughes’ testimony credible, as affirmed by his log, that there
were 10 or so employees at the site, not just three as Gunzel-
man claimed, and that several of them in addition to Hughes
were not wearing one of Respondent’s T-shirts. Moreover,
Gunzelman belatedly admitted that the employees did not wear
Respondent’s shirts all of the time to work, when he stated that
the employees have them, and that “sometimes they’re clean.”
In view of Gunzelman’s long tenure with Respondent, I have
concluded that at the time he sent Hughes home he was aware
that the uniform policy in Respondent’s handbook was not
enforced with respect to field employees. Thus, I have credited
Hughes’ account of the conversation with Gunzelman in full
over that presented by Gunzelman, and I have concluded that
Gunzelman singled Hughes out and sent him home for wearing
a union T-shirt, when Respondent admittedly had no policy in
effect prohibiting Hughes from doing so.
2. On September 2, Local 24 files an OSHA complaint
on behalf of Hughes
Hughes’ log for August 28, shows he was transferred from
the Naval Academy Stadium site back to the Naval Academy.5
As per his log, on August 29, Hughes was assigned to the Na-
val Academy practice football field.6 The log reveals that
Hughes worked alone at the practice football field, with Chip
Grady, his new foreman. Hughes’ assignment was to dig holes
for the installation of hand boxes to run underground PVC pip-
ing. Hughes’ log reveals he started off using a ditch witch to

5 I do not credit Gunzelman’s testimony that Hughes remained at the
Naval Academy Stadium for 2 weeks after Hughes first wore his union
shirt on August 27.
6 The Naval Academy practice football field is a different location
than the Naval Stadium where Hughes worked on August 27.
dig the holes. As Hughes dug, he found a two-inch PVC pipe,
which was connected to a large transformer. Hughes brought
this to Grady’s attention. Hughes states in his log that nothing
was marked, and he asked Grady about it. Grady said it was
marked a long time ago. Hughes told Grady it should be
marked before they performed any trenching. At which point,
as reflected in his log, Hughes saw Grady discussing the matter
with Gunzelman. As per the discussion, Hughes was told to dig
the trench, which was 18 inches deep and 200 yards long by
hand. Hughes’ log reveals he asked Grady if Respondent had
laborers to do this type of work, and Grady responded we do
what we have to do. The log reveals Hughes told Grady that
Hughes was placed in a dangerous situation by being required
to dig around unmarked electrical pipes, but Grady’s only re-
sponse was nothing happened to you did it.
Hughes returned to the Naval Academy practice football
field On September 2.7 Hughes’ daily log reveals he started
digging by hand a trench behind the bleachers. Hughes testified
that he notified Lash that he thought there was a safety viola-
tion, and that as a result Lash called OSHA. Hughes’ log re-
veals that an OSHA inspector arrived at the jobsite after lunch
on September 2. Hughes testified the OSHA inspector asked
Hughes if there was a problem with the underground wiring.
Hughes testified that, as he was talking to the OSHA inspector,
Grady, Gunzelman, and Gunzelman’s boss, William Turner,
arrived. Gunzelman told Hughes to leave the area and to do his
job, which at the time was digging the trench with a digging bar
and a shovel. The OSHA inspector told Hughes he could use
the shovel but not the digging bar. Hughes testified that, after
everyone left, Grady was very upset stating that Grady was
going to receive 2 or 3 days off due to the safety violation.
Hughes testified he was fairly sure there was an OSHA vio-
lation because where he was trenching there were no marks to
show underground meters and pipes. Hughes testified that it
was his experience when there were underground cables that go
to 13000 volts they have to be marked before digging. Hughes
testified that the person from OSHA also prevented him from
using the trenching machine or the digging bar.
Respondent’s Witnesses
Gunzelman testified there was a time OSHA was called on to
the job concerning some digging at the site. Gunzelman testi-
fied it was reported they did not have a digging permit, al-
though Respondent, in fact, had two digging permits. Gunzel-
man testified he showed the OSHA official the digging permits
and Respondent received no citation. Gunzelman denied Grady
was disciplined over the incident. Gunzelman testified he did
not know Hughes called OSHA, although he testified, “We’d
all sit and speculate about it.” Gunzelman testified Hughes was
digging a trench with a shovel. Prior to that he was using a
ditch witch. Gunzelman testified there was no possibility of
Hughes electrocuting himself since the high voltage wire was
not energized. Gunzelman testified Hughes did not talk to him,
or anyone else Gunzelman knew of about a safety concern.
Rather, Hughes just called OSHA.

7 On September 2, Hughes received a written warning for not calling
and not showing up for work on August 26. Hughes refused to sign the
warning.
PRIMO ELECTRIC 1191
I have credited Hughes’ testimony, over Gunzelman’s, con-
cerning the events leading up to and pertaining to the OSHA
complaint, as corroborated by Hughes’ daily log. While Gun-
zelman may have correctly testified Respondent received no
citation over the incident, I find Respondent’s officials failed to
establish to Hughes following his complaint that he was work-
ing in a safe work environment. I also do not credit Gunzel-
man’s testimony that he was not aware that Hughes spoke to
Grady about Hughes’ concerns before OSHA was called.
Hughes’ log for August 28, reveals that following Hughes’
complaint, he saw Grady discussing the matter with Gunzel-
man, and then Hughes’ assignment was changed from digging
the trench using the ditch witch to digging by hand. Hughes’
testimony is confirmed by Gunzelman’s admission that he was
aware that Hughes was using the ditch witch to dig the trench
and then changed to using a shovel. If there was no legitimacy
to Hughes’ concern, Gunzelman failed to explain why he no
longer used the ditch witch for digging the large trench. Gun-
zelman also testified they had their suspicions as to who filed
the OSHA complaint, and I have concluded those suspicions
centered on Hughes.
3. On September 3, Hughes is interviewed
for an office job
Hughes was assigned to the Naval Academy jobsite on Sep-
tember 3. However, Hughes’ log reveals that Gunzelman and
Grady sent him to Respondent’s Glen Burnie office at 6:30 a.m.
on that date with no explanation. Hughes testified that when he
arrived, he spoke to Perini with no one else present. Perini said
she wanted Hughes to go to the different departments in the
building and talk to each person in charge to allow them to see
what he knew about Respondent’s operations. Hughes testified
he met with an estimator, who asked Hughes questions about
estimating certain work. Hughes testified he also interviewed
for a supervisory position as the interviewer asked him how he
would deal with certain problems with men. Another position
Hughes testified he interviewed for was assigning men and
materials to jobsites, which included giving assignments to
foremen.
Hughes testified that he met with four or five people during
this interview process and then he met with Perini again. He
testified that Perini told him he was being interviewed for the
positions and that the salary for these jobs would be between
$55,000 and $75,000 a year. Hughes testified that he was earn-
ing pretty close to this amount working in the field. He testi-
fied Perini asked him which job he would be interested in do-
ing, and Hughes replied that he did not want any of them be-
cause he did not want to work inside as he preferred working
outside with his tools. Hughes testified he considered Perini’s
asking him what position he wanted to be a job offer. Hughes
testified no one explained to him why he was being interviewed
for any of the positions. Rather, he was just called into the
office and interviewed. Hughes testified, as reflected in his
daily log, that during his discussion with Perini, he asked her
“[I]f anyone where she works has said to her ‘you have to work
faster and harder.’” Hughes’ log reflects that he told Perini this
was said several times to him by his foreman, and he told her
that the referenced foreman had no respect for his knowledge,
experience, or age. Hughes’ log reveals he made these remarks
to Perini after the interview process when he told her he would
not be interested in any of the jobs.
Respondent’s Witnesses
Perini testified that while Hughes was working at the Naval
Academy and the Naval Stadium he was working under Gun-
zelman who was the superintendent for both jobsites. Perini
testified they brought Hughes in to interview for an estimator
position, and Hughes did not interview for a supervisory posi-
tion. Perini testified Respondent did not offer Hughes a posi-
tion, rather they conducted an interview process and Hughes
stated, before any decision was made, that he wanted to stay in
the field and work with his tools. Perini testified as follows
concerning the reason Respondent interviewed Hughes:
They were arranged, there was a concern, we were trying to
accommodate him, basically, I believe, in terms of I got the
notice that we would like to interview Mr. Hughes from, from
the president, because the president had indicated that he had
been told, and again I don’t have the full thing on that, I’m go-
ing based on what you’ve just asked me, was that Mr. Hughes
had indicated he was having some difficulty working in the
field and that we had also, that they had also heard that he had
his own business previously, because he had been talking
about his experience. I think that’s how that came up.
Perini testified Hughes was brought in and she met with him
first. Perini testified that during the conversation, she asked
Hughes if he understood why he was brought in, and that she
understood he was “having some possible difficulty in the
field,” and that they wanted to see if with his experience they
could use him as an estimator. Perini testified Hughes stated he
was not as fast as he used to be, but he was steady, and that he
wanted to continue working in the field with his tools, without
further considering the position. Perini testified that she pro-
vided Hughes’ employment information to two individuals in
Respondent’s estimating team and Hughes only interviewed for
an estimating position.
I do not credit Perini’s testimony that Hughes was brought in
for these interviews because alleged reports that he was having
trouble working in the field. Hughes was brought in on Sep-
tember 3, shortly after he began wearing a union shirt on Au-
gust 27, and the Union caused an OSHA investigation on
Hughes’ behalf on September 2. The timing strongly suggests
that Respondent was attempting to remove Hughes from the
field as a result of his union activity. Moreover, Gunzelman,
the superintendent in charge of Hughes testified, when asked
what type of worker Hughes was that he “[c]ame to work, did,
you know, what he was told to do.” Thus, Gunzelman failed to
testify that any complaint was lodged about Hughes’ job per-
formance prior to the September 3 job interviews. Hughes
credibly testified that Perini never told him that he was being
interviewed for the positions because he had problems in the
field. I have also credited Hughes’ testimony that he was inter-
viewed for an estimator position, a supervisory position, and a
dispatcher type position.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1192
4. On September 4, Hughes is transferred to the Andrews
Air Force Base (AAFB) jobsite
Hughes returned to the Naval Academy on September 4, but
his log reflects at the end of the day, he was transferred to
AAFB. Foreman Dale Haylett assigned Hughes work at
AAFB. Hughes testified that at Andrews, “Basically I raked
and shoveled dirt and stones.” He testified that laborers, not a
journeyman wireman, usually perform this work. Hughes’
hours at Andrews were 6:30 a.m. to 3 p.m., with a 9 a.m. to
9:15 a.m. break and lunchbreak from 12 to 12:30 p.m.
On September 9, Hughes wrote in his log “they don’t seem
to have any problem with me or my affiliation. The men ask
questions about the union once in while.” Hughes wrote in his
log on September 10, “Still digging & still wearing my ‘T’
shirt.” Hughes testified he did not know if any other journey-
men electricians were digging stating he never saw the other
individuals who dug doing any electrical work. Hughes testi-
fied that everyone he worked with was digging and he esti-
mated this was between 9 to 11 people. Hughes testified that
he could not talk to these employees, with the exception of an
individual named Tito, as they all spoke Spanish. Hughes testi-
fied Tito spoke some English, and would translate to the other
men for Hughes. However, Hughes also named Ed Kelly as
another person who spoke English, but was transferred to an-
other job.8 Hughes wrote in his log that on September 12, 13,
15, and 17, he was still digging. Hughes’ log reveals that on
September 22, he raked stones all day. On September 24 and
25, Hughes built concrete forms.
On September 26, Hughes listed his work in his log as strip-
ping sidewalk forms, pumping out a manhole, and boarding up
sleeves inside. He also states for the first time in his log that he
gave out flyers and cards to “several guys.” Hughes noted in
the log that they asked questions and that Lash may be receiv-
ing calls.
5. The September 29 incidents concerning Hughes
Hughes’ log reveals that on September 29, he had an incident
with Eric Gray. Hughes testified that Gray came over to
Hughes and gave him “a bunch of orders.” Hughes responded
Gray was not his boss, that Hughes took orders from one boss
at a time, and that Dale Haylett was Hughes’ foreman. Hughes
testified he later found out that Haylett was not there that morn-
ing and that Gray took over as foreman. Hughes testified he
did not know it at the time. However, Hughes’ daily log con-
tradicted Hughes’ testimony in that the log states, in reference
to Gray, “Had words with guy named Eric. He is a foreman on
other jobs but not this one. He started giving orders this morn.
To me & others. I questioned his authority & said that he
wasn’t my foreman. His response was when Dale (my fore-
man) wasn’t around that he became my foreman. I told him
that I will only have one foreman at a time. He went away to
confer with Dale. This happened two times today.” Gray con-
firmed Hughes refused Gray’s instruction. Gray testified he
informed Haylett of the incident. I have credited Hughes’ log

8 Hughes testified that Eric Gray and Joe Schlerf spoke English, but
that Hughes did not work with them at the site, except for Gray for 1
day.
that Gray informed Hughes that Gray was filling in for Haylett,
but Hughes responded he would only have one foreman at a
time.
Hughes testified another incident took place on September
29. This was between Joe Schlerf and Hughes. Hughes testi-
fied as follows: Gray, Tito, and three other men were present.
The incident took place before lunch. They were pouring con-
crete into a form they had built for a transformer pad. Schlerf
was on the other side of the transformer pad from Hughes, and
there were men raking the concrete. Gray was in front of
Hughes kneeling down trying to rake the concrete so Hughes
could vibrate it down into the form. Hughes had an electric
vibrator in his hand, which is used to vibrate the concrete all
around the form. Hughes was holding the vibrator with both
hands, waiting for Gray, who was raking concrete. Schlerf was
on the other side of the form, about 10 to 12 feet away, saying
Hughes could not vibrate the concrete with that thing up in the
air. Schlerf told Hughes to stick his “dick” into the concrete
and get it done. Hughes responded he would put it in Schlerf’s
ear. At that point, Schlerf walked around the pad towards
Hughes. Schlerf stopped a step and one half away from
Hughes and said can anyone get this man off the job. Hughes
said he had not done anything wrong, why should anyone get
rid of Hughes. Schlerf walked away. Haylett came over and
Schlerf said he wanted to file charges against Hughes because
Hughes threatened him on the job. Hughes testified he felt
Schlerf initiated the incident. Hughes typed a report of the
incident that night and then gave it to Hogge. Hughes told
Hogge he did not know what Hogge heard but his written
memo was what happened. Hughes never heard anything else
about it. Hughes denied that he was aware, at the time, that the
term “dick” is a slang word for the concrete vibrator.
Schlerf testified he was a lead person. Schlerf testified it
was around 2 p.m., and they were pouring concrete. They had
six or seven transformer pads to pour. They were trying to
eliminate overtime, and Hogge said they had to get this done.
Schlerf backed the truck in, and was pouring concrete. Schlerf
testified Hughes was holding the concrete vibrator in the air,
which is known as a “dick” in the field. Hughes was supposed
to use the vibrator to vibrate the concrete down into the wire
mesh. Schlerf testified he yelled at Hughes telling him to put
his “dick” in the cement, and Hughes came “back with some-
thing that I’m going to stick this dick in your ear or something.
Schlerf testified he was hot and there was a lot of tension.
Schlerf testified he told Haylett, “[W]hat are you going to do
about this guy, or something to that effect.” Schlerf testified
Hogge asked him what happened after Hogge received Hughes’
letter. Schlerf testified once you stick the vibrator into the con-
crete and pull it out; it sprays droplets into your eyes and on
your clothes. Hughes had the vibrator up in the air when
Schlerf talked to him, and Schlerf testified he was getting splat-
tered. Schlerf testified he was sure Hughes would have known
the slang word for vibrator was “dick” because he heard it
every day when they were pouring cement. While Gray was
called as a witness for Respondent, he did not testify about this
incident.
I do not credit Schlerf’s assertion that he told Hughes to stick
the vibrator into the cement because Hughes was splattering
PRIMO ELECTRIC 1193
cement while he was holding the vibrator up in the air. Rather,
I find that Hughes had not yet dipped the vibrator into the ce-
ment at the time of Schlerf’s remarks. I have credited Hughes’
testimony, as confirmed by Hughes’ memo to Hogge, that Gray
was kneeling in front of Hughes while Hughes was holding the
vibrator in the air. If any cement was splattering it would have
hit Hughes and Gray first, as Schlerf testified he was in a truck
pouring cement at the time of the incident. I do not credit
Schlerf’s testimony that Hughes stood there with the vibrator in
the air while splattering himself with cement. Moreover, Gray
failed to corroborate this assertion. Rather, I find the incident
was caused by Schlerf’s aggressive posture towards Hughes,
which was motivated by Hughes wearing a union shirt. In this
regard, Schlerf testified he subsequently instructed Respondent
employee witness Clayton Bester to report to Superintendent
Hogge that Bester had received a union computer disc from
Hughes, which subsequently led to Hughes’ termination.
Schlerf could advance no reason for this instruction to Bester,
except that he felt that the superintendent had a right to know
what was happening on the job.
6. On September 30, Hughes begins to distribute the Union’s
computer discs (CDs) to Respondent’s employees
Hughes testified he distributed union CDs to some of Re-
spondent’s employees in the latter part of September 2003 at
the AAFB jobsite. Lash had given the materials to Hughes at
the union hall. Hughes estimated he gave out around six CDs.
Hughes testified that he gave the CDs out before and after work
in the parking area to employees who had computers at home.
He testified he asked them if they had a computer, and if they
said yes, he asked them if they would like to have one of the
discs to play at home. Hughes testified the parking area was off
the jobsite and that no work was performed in this area.
Hughes denied carrying any of the CDs onto the jobsite.
Hughes testified he made entries in his log when he distributed
the Union’s materials. He denied distributing materials he did
not record in his log. The CDs came in a small plastic casing in
a set of a small sized DVD and a CD, with each stating on the
cover, “Earn What You’re Worth.” The first entry in Hughes’
log for giving out the Union’s CDs is on September 30, where
it states he gave out CDs before work. On October 1, the log
states that Hughes gave out two CD-ROMs after work.9
Hughes’ log for October 2, reveals that on that date, his
foreman, Haylett, who was also a backhoe operator ran over
Hughes’ lunchbox and tools. Hughes wrote in his daily log
pertaining to Haylett, “He then asked me if I thought he did it
on purpose. I said no but if I thought otherwise we wouldn’t be
standing here talking.” Hughes testified he told Haylett he did

9 It states in Hughes’ prehearing affidavit, dated May 14, 2004, that
Hughes gave out six or seven CD-ROMs during the period he worked
at AAFB, which was from early September to the end of September.
The affidavit states that Lash gave Hughes the CD-ROMs in early
September. However, Hughes testified concerning the affidavit that his
daily log was more accurate as to when he gave the CDs out. Hughes
testified that whatever days he wrote in his log were the days he gave
out the CD-ROMs. I found Hughes’ log, as he testified, to have been
kept in an accurate fashion, and that he correctly recorded the dates he
gave out the Union’s disc in the daily log, as set forth above.
not think he did it on purpose in order to avoid a fight because
Haylett was coming straight at him. Hughes reported the inci-
dent to Hogge, who, on behalf of Respondent, compensated
Hughes for the damaged equipment.10
Hughes listed his duties in his log from September 29 to Oc-
tober 9, as digging dirt. I have credited the following as drawn
of Hughes’ testimony and his daily log. Hughes states in his
log that on October 7 he was warned by Tito that someone was
going to say Hughes was giving out CDs during working hours,
which Hughes asserts in the log was not true.11 Hughes testified
he went to Hogge and explained to him that Tito told Hughes
that he was going to be fired for giving out CDs. Hogge said he
knew nothing about it, but he would look into it. Hughes states
in the log Hogge asked why Hughes was in the Union and
working for Primo. Hughes testified he told Hogge he was
trying to encourage some of the workers to be union electri-
cians and to persuade Respondent to be a union contractor.
Hughes testified Hogge told him that Hogge was a union elec-
trician at one time.12
7. Hughes is discharged on October 10
On October 10, Hughes met with Perini and Plitt around
10:30 a.m. in the general foreman’s trailer. Hughes testified,
“Tito and I had come back down there in the pickup truck to go
to the Johnny-on-the-spot, because that’s where they were back
by the trailers. As I came out of the Johnny-on-the-spot, Mr.
Plitt walked over. He says, we have to talk to you in the trailer
. . . .” Hughes testified Perini did the talking for Respondent
during the meeting. Hughes testified, after he and Plitt entered
the trailer, Perini said, “Mr. Hughes, we’re going to terminate
you today.” Hughes asked the reason, and Perini picked up the
Union’s CD and said, “[Y]ou were giving these out on the job,

10 The General Counsel did not allege Haylett’s running over
Hughes’ tools as violative of the Act. I also cannot attribute Haylett’s
conduct to Respondent. Hughes admitted telling Haylett he did not
think he did it on purpose, and Haylett was not alleged to be Respon-
dent’s supervisor or agent in the complaint. Respondent also reim-
bursed Hughes for the equipment
11 Hughes testified he had worked a lot with Tito at AAFB, but he
did not learn Earnest Bringas was Tito’s name until after Hughes was
discharged. Tito is Bringas’ middle name.
12 I have credited Hughes’ testimony, as confirmed in his daily log,
as to his conversations with Tito (Bringas) and Hogge, as set forth
above. Hughes testified about the conversations in a credible and
straightforward fashion. Respondent called Bringas as a witness, who
denied telling Hughes he was going to be fired for passing out the CDs.
He testified, “No, I never say nothing because, you know, I never in-
volve, you know, with my bosses when they have a meeting. I don’t
know what—I don’t know what happened. I’m an employee, that’s it.”
When asked if he heard anyone say Hughes was going to get in trouble,
Bringas testified, “I don’t know.” Bringas also denied anyone had
talked to him about his testimony prior to the hearing. When asked if
the lawyers talked to him, he became evasive. Bringas was clearly a
frightened witness, and given his status as a current employee called by
Respondent to testify, I did not find much he said, on Respondent’s
behalf, to be worthy of belief. Respondent also called Hogge as a wit-
ness, and he did not deny having the above-described conversation with
Hughes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1194
and for that reason, we’re terminating you.”13 Hughes clarified
on cross-examination that Perini said they were going to termi-
nate him because Hughes was giving out CDs to the men on the
job, during working hours. Hughes testified he told Perini he
did not do it. Perini said they had a written statement from one
of your fellow workers stating Hughes was doing it. Hughes
asked Perini to name his accuser, but she refused. Hughes testi-
fied he said, “I have the right to know who my accuser is.”
However, Perini again said she was not going to tell him, and
he was being terminated for giving the CDs out. Hughes testi-
fied he said he wanted the reason for his discharge and the
name of his accuser in writing. Perini responded she could not
do it there because she did not have her computer to type it up.
Hughes said he would take it longhand, and Perini again re-
fused.14 Then Plitt escorted Hughes off the jobsite. Hughes
testified no advanced arrangements were made with him for
Perini to interview him that day.
Hughes initially denied knowing whom Respondent witness
Clayton Bester was. Bester was then brought in the hearing
room, and Hughes still testified he could not recall him.
Hughes then testified if he had seen Bester, it might have been
one time, but he did not remember him. Hughes testified he
might have given a CD to Bester, but he did not recall the con-
versation, as he asked everyone on the job in the morning or in
the afternoon after work if they had a computer at home, and
then he would give them the CD if they wanted it. However,
Hughes subsequently testified he recognized Bester after
seeing and hearing him testify. Hughes then testified he
gave Bester a CD in the morning before work in the parking
area. Hughes testified he asked Bester if he had a computer,
Bester said yes and Hughes gave him the disc. Hughes de-
nied giving Bester the CD during working time.
Hughes testified, after recognizing Bester, that he saw Bester
possibly five or six times on the jobsite, and that on occasion
Bester ran the backhoe near where Hughes was working, which
would last an hour to an hour and one half. Hughes estimated
this happened around three times for a total of about 6 hours.
Hughes testified he never knew Bester’s name, and he only saw
him a couple of times before work for a few minutes.
a. Respondent’s witnesses’ testimony concerning the events
leading to Hughes’ discharge
Clayton Bester, a backhoe operator and electrical apprentice,
had been working for Respondent for 5 years, at the time of his
testimony. He testified that he worked with Hughes at the
AAFB jobsite, and interacted with him more than 20 times
there. Bester testified the morning of September 24, before
work at the trailer near the parking lot Hughes asked Bester if
he had a computer, to which Bester replied he did. Hughes said
he had something to give to Bester. However, Hughes did not

13 Hughes testified Perini asked him if he was distributing CD-
ROMs, but she posed the question after she told him she was going to
fire him.
14 Hughes testified on direct exam that Perini gave him a check, dur-
ing the meeting, to pay off his remaining wages. However, on cross-
examination the following day, Hughes testified that after checking
with his wife, he did not receive a check at that time, rather it was sub-
sequently mailed to him.
give it to Bester at that time. Bester testified that, around 8:15
to 8:30 a.m. on September 24, Bester was working with Bringas
and Hughes. Bester was operating a backhoe backfilling a
switch. Bester testified Hughes stopped him from working by
holding up the CD. Bester stopped the backhoe, got off of it,
and Hughes gave him the CD. Bester asked Hughes what was
on the CD and Hughes told him wage information. Bester testi-
fied Hughes also told him the difference between the Union’s
wages and the wages they were receiving and the conversation
was 5 or 6 minutes. Bester testified it was during working time
and at a working place when Hughes gave him the disc. Bester
testified Bringas was about 20 to 25 feet away and he did not
know if Bringas was watching them converse.
Bester testified he took the Union’s CD home that night and
threw it in the trash because Bester was not a computer person.
Bester testified he went to the trailer the next day to sign in and
Joe Schlerf, an operator, and Hogge, the job superintendent,
were there talking about the Union’s CD. They were the only
two in the trailer. Bester testified Schlerf asked Bester if he had
one of the CDs, and Bester said he did but he threw it in the
trash. Hogge then told Bester to bring it in the next day be-
cause he wanted to give it to Perini. Bester testified he did not
think either of them asked him what time of day he received the
CD from Hughes.
Bester testified he retrieved the Union’s CD from home that
night, and brought it in the next day and gave it to Hogge.
Bester testified that when he gave it to Hogge, Bester also
wrote a statement, which he dated September 24. Bester ini-
tially testified that Hogge asked him to write the statement on
September 24, “the day I brought the CD-ROM in.” Bester
then testified that September 24, at 8:30 a.m., was the date and
time Hughes gave him the disc, and the statement was made a
day later, which would have been September 25. Bester then
changed his testimony again stating the statement was made 2
days later on September 26. Bester testified Hughes gave him
the CD on September 24, and he gave the handwritten state-
ment to Hogge on September 26, which was also the date he
gave Hogge the CD. Bester testified when he brought the CD
in, Hogge gave Bester some paper and told him to write down
what happened and to sign and date the statement. Hogge told
Bester he was giving the CD to Perini. Bester testified he gave
the CD to Hodge, not Schlerf, but that Schlerf was in the trailer
at the time.15 Bester identified his statement dated, September
24, and testified it is in his handwriting. Bester testified Hogge
said he wanted the statement because he said, “[Y]ou can’t
solicit during company time. Well, not solicit, but to give that
out—talk about the Union during company time.” Bester’s
signed handwritten statement reads:
09/24/03
8:30 a.m.
Ernest Bringas, myself, and Bill
We were backing filling switch pads when Bill talk to me
about. That is when he gave me the disc.

15 However, Bester stated in a sworn affidavit, dated May 3, 2004,
taken by Respondent’s counsel that he gave the disc to Joe Schlerf.
Bester testified the affidavit was incorrect that he gave it to Hogge, but
Schlerf was there, “so I gave it to both of them.”
PRIMO ELECTRIC 1195
Bester gave a typewritten affidavit, dated May 3, 2004, taken
by Respondent’s attorney Aaron Walters. Bester testified that,
during the meeting, Walters told him that Hughes was fired for
distributing the CD on worktime. Bester testified Walters gave
no other reason for Hughes’ discharge.
Bringas had been working for Respondent for 4 years, at the
time of his testimony. Bringas is a journeyman electrician.
Bringas testified that Tito is his middle name. Bringas met
Hughes at AAFB as they worked together there for about 3 to 5
weeks. Bringas testified that Hughes gave Bringas one of the
Union’s CDs. Bringas could not recall where he was or
whether Hughes gave it to him before or during work. When
asked where he was when Hughes gave him the CD, Bringas
testified, “Well, they give it to me I don’t know nothing about
CD. I don’t know nothing about computer, you know. I just
take that like everybody they get it.” Bringas testified that
Hughes, “tried to tell me lot of things, but I not pay attention,
you know. I don’t know. I thinking, you know, maybe he try
to watch my mind—my mind, I don’t know.” Bringas testified
when he received the CD he threw it in the trash, “because I
don’t know how to use it. I don’t know what it does.” Bringas
testified he never saw Hughes give the CD to Bester, and he did
not know if Hughes gave it to Bester.
Schlerf was working for Respondent for close to 4 years at
the time of his testimony. Schlerf is an equipment operator.
He also testified he considered himself to be a lead person at
the time they were working at AAFB in October. Schlerf testi-
fied he was aware Hughes was active in the Union. He testi-
fied, “[T]here was the scuttlebutt, he was passing literature or a
disk or something around. I mean everybody was aware of it.”
Schlerf testified that, while they were in the field, Bester told
Schlerf that he had received a disk from Hughes. Schlerf testi-
fied he told Bester he should let Hogge know what happened
and he should give Hogge the disk. Schlerf did not recall the
time of day of this conversation. Schlerf told Bester to tell
Hogge because Schlerf felt that, as superintendent, Hogge
should know what was happening on the job. Schlerf did not
know whether Hughes passing out the CD was a violation of
Respondent’s rules, which is why he suggested Bester let
Hogge know. Schlerf testified Bester did not give Schlerf the
CD, stating, “I don’t remember seeing it or getting, or getting a
CD-ROM.”
Hogge was the job superintendent at AAFB and he worked
there almost 4 years at the time of the events in question.16
Hogge testified at AAFB there were up to six foremen below
Hogge, with 8 to 25 electricians, depending on the workflow.
Hogge testified Bester came in to Respondent’s trailer and told
Hogge he received the CD from Hughes, and that it was passed
out during working time or working hours. Hogge testified
Project Manager Steve Shilling was the only other person pre-
sent in the trailer when Bester reported Hughes’ activity.17
Hogge testified Bester had the CD in his hand the first time he
walked in and told Hogge about it. Hogge testified that was the
only time he discussed it with Bester and Bester gave the CD to

16 It appears that Respondent no longer employed Hogge at the time
of his testimony.
17 Hogge testified Shilling no longer worked for Respondent.
Hogge at that time. Hogge did not ask Bester to give a state-
ment at that time. Hogge testified he contacted Superintendent
Richard Plitt the same day and Plitt told Hogge that Plitt con-
tacted Respondent Vice President John Hall, who contacted
Perini. Hogge testified he asked Bester to give a statement 3 or
4 days after Bester gave Hogge the CD because Hogge received
a call from Hall, who asked Hogge to have Bester write a
statement. Hogge testified Bester was in Hogge’s office when
Hogge told him to make out the statement. Hogge testified
Bester made his hand written statement in front of Shilling, in
Shilling’s office. Bester gave the statement to Hogge, who
gave it to Plitt.
Respondent employed Plitt as a project manager at the time
of his testimony. Plitt worked for Respondent as a field super-
intendent in the fall of 2003. Plitt testified Perini and Plitt went
to the AAFB jobsite on October 10 to clarify information about
CDs being passed out on the job. Plitt made no special ar-
rangements to make sure Bester or Hughes were available.
When they arrived at the site, Plitt brought Bester in from the
field to Respondent’s trailer. Plitt testified Perini questioned
Bester who said he received the CD from Hughes “during
working hours or working time.” Plitt testified, “Basically, we
asked him if he was working at the time, when the CD was
given to him, which he said yes.” Plitt did not recall what work
Bester was doing when he received the CD. Plitt testified that,
after meeting with Bester, Plitt picked Hughes up from the field
and brought him to the trailer where Perini spoke to Hughes in
Plitt’s presence. Plitt testified she asked Hughes if he had been
giving the CDs to the employees, to which Hughes said yes.
Perini asked if Hughes had been doing it during working time,
and Hughes said no. Perini asked Hughes that question a sec-
ond time, and he denied it again, and then he was terminated.
When he was told he was discharged, Hughes asked for a writ-
ten statement setting forth the reasons from Perini. Plitt testi-
fied that, “other than that, he agreed and we escorted him off
base.” Plitt testified Hughes was told he was terminated for
lying to Perini.
Perini testified it was solely her decision to discharge
Hughes and the only reason was because he lied during her
investigation. Perini testified Respondent has a policy against
dishonesty set forth in its handbook, and that all dishonesty is a
terminable offense. Perini also testified that Hughes was a poor
employee but that was not the reason he was discharged, and
that Hughes’ job performance had nothing to do with his termi-
nation.
Perini testified she was first made aware Hughes was distrib-
uting union materials in the “first part of October,” and she
testified she thought the actual date was October 4 when she
received a call from Hall. Perini testified Hall told her one of
the employees had produced the Union’s CD, and Hughes was
distributing it. Hall told her there had been some concerns with
Hughes’ job performance, and they had just heard he had been
distributing during working hours. Perini responded she would
investigate it. Perini testified she began her investigation on
October 4, by requesting that Bester provide a written statement
and that it be forwarded to her. Perini testified she received the
written statement around 2 days after she requested it. How-
ever, Perini later testified it was within a couple of days after
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1196
Hall’s call that she requested Bester provide a written state-
ment. Perini testified the only other thing she did concerning
the investigation, prior to her arrival on the jobsite on October
10, was to review Hughes and Bester’s files.
Perini arrived at the AAFB site around 9 or 10 a.m. on Octo-
ber 10, and she met with Schilling and told him she needed to
use Respondent’s trailer to conduct an investigation.18 Schil-
ling was not involved in the investigation. Perini testified that,
after meeting with Schilling, she met with Bester in the trailer
for around 45 minutes. Plitt was also in attendance. Perini had
Bester verify his written statement. Perini testified she asked
Bester when the incident occurred, and he said it was during
working time. Bester said they were working as a crew and as
Bester was getting off the backhoe Hughes approached him.
Perini testified they were doing some work with holes, but she
could not specifically recall the work. Perini testified she was
told one other person was working on the crew. She testified
Bester stated Hughes gave him the disc as he was getting off
the backhoe. Perini testified she asked Bester whom he gave
the disc to, and he responded Schlerf. Perini testified she did
not know whether Bester gave the disc to Schlerf during work-
ing time. Perini testified it was her understanding Schlerf, not
Bester, turned the disc into Hogge.19 Perini testified she

18 Perini later testified she met with Hall on the morning of October
10, and that was when she received the Union’s disc. Perini had the
disc during her meetings with Bester and Hughes. Perini testified when
she met with Hall, he informed her there was an incident where Hughes
refused to take orders from Eric Gray. Hall also told Perini of an ar-
gument between Schlerf and Hughes over the use of a vibrator on the
site. She testified she asked no questions about this incident as it was
handled at the job and she was told it had been resolved. Perini saw
Hughes memo about what occurred on the site at that time. Perini gave
no other specifics about any other performance problems concerning
Hughes that had been reported to her by Hall. Perini failed to investi-
gate any alleged performance problems for Hughes, or question him
about it. Respondent presented several witnesses as to Hughes’ alleged
performance problems. Hogge testified he received reports of perform-
ance concerns of Hughes of not doing what he was asked to do, and
working very slow. Hogge also testified he was aware there was an
incident between Schlerf and Hughes, which they handled among
themselves, and Hogge knew very little about. There was no claim that
Hogge ever thought the alleged performance problems by Hughes
warranted disciplinary action, that he confronted Hughes about them, or
that he recommended any action be taken. In fact, as per Perini’s tes-
timony, the only time the alleged performance problems were reported
to her was when Respondent’s officials became aware that Hughes was
distributing the Union’s disc to its employees. Respondent witness
Haylett testified he spoke to Hogge a couple of times about Hughes’
performance concerning the pace of his work, and he asked Hogge
what they were going to do in that no one wanted to work with Hughes.
Haylett testified Hogge’s response was they were going to look into it,
and Hogge later told Haylett he talked to someone and they were going
to see what they could do. I found Haylett’s claims concerning
Hughes’ performance to be exaggerated and not worthy of belief, since
no one from management ever talked to Hughes about these alleged
problems. I also do not credit Respondent witnesses Schlerf, Gray, and
Mark Graham’s claims of performance problems by Hughes, which
were never specifically reported to nor investigated by Perini.
19 Perini testified to her knowledge, Bester gave the disc to Schlerf,
who gave it to Hogge, who gave it to Hall, who gave it to her.
thought Bester told her the incident with Hughes occurred on
September 24.
Perini met with Hughes after her meeting with Bester. Plitt
was also present. Perini testified Hughes appeared defensive
during the meeting in that he said he gave the disc out at 6:15
a.m. when he was getting out of his car. When Perini asked if
he was absolutely sure he did not distribute the disc during
working time, Hughes said he did not lie.20 Perini testified she
did not credit Hughes based on his body language and the way
he gave his response. Perini told Hughes she had a written
statement, and Hughes demanded to know who gave it. Perini
said she was not going to divulge that information. Perini told
Hughes she was going to terminate his employment that day.
Hughes asked why and Perini responded for falsifying informa-
tion during an investigation. Perini testified if Hughes had
indicated he was soliciting during working time, he would not
have been fired, but just given a warning. Perini testified the
sole reason she discharged Hughes was because he lied to her
concerning whether he gave the disc out during working time,
as Perini elected to believe Bester’s version of the incident.
Perini testified Bester named Bringas as the third individual
who was present when Hughes gave Bester the disc. Perini
testified she did not think it would have been prudent to talk to
Bringas, “given the circumstances.” Perini did not ask if Brin-
gas was on the site that day, as she did not consider him to be
part of the incident. Respondent’s records reveal Bringas was
on the site. She testified she had only preplanned to meet with
Bester and Hughes. Perini testified if she was going to inter-
view someone; it would have to be prearranged. Perini testified
she made no arrangements to interview Bringas before arriving
at the site on October 10, although she made arrangements to
interview Bester and Hughes. Perini testified she did not ex-
pect to have to meet with Bringas.
Perini testified that with sexual harassment cases, she has
never fired anyone without providing them with the name of
their accuser. However, Perini testified she did not provide
Hughes with Bester’s name because she felt there would be a
form of retaliation given the topic of Hughes’ distribution.
Perini testified Hughes was never told Bester was his accuser or
that Bringas witnessed the incident. Perini testified Hughes
asked several times who his accuser was, and Perini told him
that she was not going to divulge that information.
b. Credibility
I have credited Hughes’ version of the discharge meeting,
and have also credited his testimony that he did not distribute
the Union’s disc to Bester during working time. In this regard,
considering his demeanor, I found Hughes to have testified in a
straight forward manner concerning the events leading to his
discharge, while I found the testimony of Respondent’s wit-
nesses to be internally inconsistent and contradictory on points
the witnesses should have remembered.
Hughes testified he gave Bester the disc before work in the
parking lot. Bester admitted Hughes approached him before
work concerning the disc, but then contended Hughes only

20 Perini was not sure, but she thought she used the term working
time, not working hours, while talking to Hughes.
PRIMO ELECTRIC 1197
gave him the disc after they were working on a project when
Hughes held up the disc signaling Bester to stop operating and
get off his backhoe to talk to Hughes. While Bester named
Bringas as a witness in Bester’s written statement, and Bester
described a situation that, if it occurred as described, Bringas
would likely have noticed the transaction, Bringas, who was
called as a witness by Respondent, failed to confirm that it took
place.
The testimony of Respondent’s witnesses was also contradic-
tory as to the circumstances leading Bester to provide Respon-
dent’s officials with the Union’s disc and under which Bester
gave his handwritten statement leading to Hughes’ discharge.
Bester testified Hughes gave him the disc on September 24 and
Bester threw it out that night while at home. He testified that,
while reporting to work on September 25, Superintendent
Hogge and Schlerf were in Respondent’s trailer where Schlerf
asked Bester if Hughes had given him the disc, at which point
Hogge told him to bring it in. Bester testified he did not be-
lieve he was asked at that time whether Hughes gave him the
disc during working time. Rather, Hogge just told Bester to
bring the disc in. Bester testified he brought the disc in on
September 26, and gave it to Hogge, who again was in the
trailer with Schlerf. However, Bester testified in an affidavit
taken by Respondent’s counsel that Bester had given the disc to
Schlerf rather than Hogge. Bester thereafter attempted to con-
form his testimony at the hearing with that in the affidavit by
now stating that he gave it to Hogge, but since Schlerf was in
the office, Bester in fact gave the disc to both of them. Of
course contrary to Bester, neither Schlerf nor Hogge placed
Schlerf in the trailer when Bester first talked to Hogge about
the disc, or when Bester gave Hogge the disc. Schlerf testified
he was working in the field when he told Bester to give Hogge
the disc. Schlerf also testified Bester did not give the disc to
him, and that he never saw the disc. Hogge testified that Pro-
ject Manager Steve Shilling, not Schlerf, was in the trailer with
Hogge when Bester turned the disc in, and again when Bester
gave his handwritten statement. Hogge also testified that,
based on instructions from above, he asked Bester to give a
statement 3 or 4 days after Bester turned in the disc contradict-
ing Bester’s testimony that he gave the statement the same day
he gave Hogge the disc.
Perini gave a fourth version as to whom Bester turned the
disc into and when its receipt was reported to Respondent.
Perini testified she learned Hughes was distributing the disc
based on a phone conversation with Hall, which she testified
she thought took place on October 4. Perini testified she re-
quested Hall that Bester provide a written statement on October
4, and it was forwarded to her around 2 days after she requested
it. Thus, contrary to Bester, who testified he provided a written
statement on September 26, Perini’s testimony reveals Bester
was not asked to provide a statement until at least October 4.
Perini also testified that when she met with Bester, he told her
that he turned the disc into Schlerf, which was contrary to the
testimony of Hogge, Schlerf, and for the most part Bester.
The contradictory stories of Respondent’s witnesses serve to
undercut Bester’s veracity as to circumstances in which he
received the disc, and under which he turned it in. First,
Hughes testified according to his logbook, he did not begin
distributing the discs to Respondent’s employees until Septem-
ber 30, not September 24 as Bester claimed. Perini’s statement
that she was first informed of the disc around October 4, and
she was the one who requested that Bester make a statement,
which she did not receive until 2 days after October 4, serves to
corroborate Hughes claim that he started distributing the disc at
a later point in time than asserted by Bester. Moreover, Bester
testified when Hogge first asked him to bring in the disc, Bester
was not questioned as to whether Hughes gave it to him during
working time. Thus, Respondent’s officials had no reason for
requesting the disc from Bester other than to keep track of
Hughes and its employees’ union activities. The circumstances
in which Bester was directed to bring the disc in by Hogge, and
then to provide a signed statement in Respondent’s trailer oc-
cupied by Hogge and project manager Shilling also seem
somewhat coercive, particularly given the varying accounts of
Respondent’s witnesses as to what took place.
I also do not find Perini’s explanation for her failure to inter-
view Bringas, who Bester had named as a witness in his signed
statement and again during his meeting with Perini to Hughes
providing him the disc, to be very convincing. Plitt, who sepa-
rately picked up Bester and Hughes at the jobsite, testified he
made no advanced arrangements to obtain either employee, a
point that was corroborated by Hughes, who also testified he
was with Bringas when Plitt picked him up. I do not credit
Perini’s claims that advanced arrangements were needed to
interview these employees, that she had a concern that inter-
viewing Bringas would be disruptive to the work, or that she
could divine to her satisfaction based on her limited interviews
of Bester and Hughes who was telling the truth without inter-
viewing Bester’s named witness. Rather, I have concluded, as
Hughes testified that he was told by Perini at the outset of their
meeting that she had made up her mind to discharge Hughes for
circulating the Union’s CD to Respondent’s employees, even
before hearing Hughes’ version of events, which was further
corroborated by Perini’s admission that she had no plans to
interview Bringas even before she heard what Bester and
Hughes had to say.
It was also Perini’s testimony that the only reason she dis-
charged Hughes was for lying during an investigation.21 She

21 Perini initially testified that dishonesty always warrants that an
employee be discharged. Respondent’s handbook in sec. 6.2 lists dis-
honesty as one of a series of offenses that “may subject the employee to
disciplinary action, up to and including termination.” Thus, there was
no requirement in the handbook that an employee automatically be
discharged for every instance of dishonesty. I also do not find as per-
suasive Respondent’s examples of other employees who were dis-
charged for alleged dishonesty as comparable to Hughes’ situation.
Perini cited as one example an employee who she concluded had filed a
false report against a supervisor in possible retaliation for a written
warning from the supervisor. She cited as other examples three em-
ployees who were terminated based on Respondent’s determinations
they had falsified their employment applications by omitting convic-
tions. Respondent listed another employee who falsified his application
in terms of his prior work history. After the employee reported to
work, it was discovered he had bad knees. He worked only 2 days, and
then failed to report. Perini placed the reasons for the discharges of
three of these employees in their termination letters. She failed to do so
for Hughes, although he specifically requested the reason for his termi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1198
testified that if Hughes had admitted distributing the disc on
working time, he would have received a warning, but would not
have been discharged. Hughes on the other hand credibly testi-
fied Perini told Hughes he was being discharged for giving out
the Union’s disc on the job during working hours. Respondent
witness Bester’s testimony serves to corroborate Hughes on this
point. Bester testified he met with Respondent’s attorney
Aaron Walters on May 3, 2004. Bester testified during the
meeting, Walters told Bester that Hughes was discharged for
giving Bester the Union’s disc during working time, and this
was the only reason Walters gave for the discharge. I find Wal-
ter’s admission to Bester serves to corroborate Hughes’ testi-
mony as to what Perini told him was the cause for his dis-
charge, and further undercuts Perini’s version of events.22
I have considered, but do not find as persuasive, Respon-
dent’s arguments in its brief to discredit Hughes as to the events
leading to his discharge. I do not find the sheer number of
Respondent’s witnesses testifying against Hughes to be as con-
vincing as Respondent suggests, given the contradictory state-
ments between these witnesses concerning key points of the
case. I also find it more than a coincidence that both Respon-
dent witnesses’ employees Bester and Bringas admitted accept-
ing a disc from Hughes, but also testified they had no interest in
its content. Based on the demeanor of each of these witnesses,
and the content of their testimony, I have concluded they were
aware of Respondent’s antiunion stance, and it impacted on

nation be put in writing, thereby treating Hughes in a disparate fashion
from others she has discharged, and making it very difficult for him to
appeal his termination. Perini cited another employee, who Perini
testified under that employee’s watch around 60 employees had not
designated beneficiaries for their life insurance. Perini testified the
employee had lied to her about the situation, which Perini testified was
the cause of the employee’s discharge, as opposed to the employee’s
underlying job performance. However, Perini testified she wrote unsat-
isfactory job performance rather than dishonesty on the employee’s
termination form, in order to protect the employee’s privacy because
she had been a long-term employee. I do not credit Perini’s testimony
here. The state unemployment hearing examiner’s decision found the
employee was disqualified for benefits because she was discharged for
gross misconduct in that there were forty separate occurrences where
employees were not enrolled in Respondent’s benefit program. Noth-
ing is mentioned in the portion of the decision submitted into evidence
by Respondent that dishonesty played a roll in the discharge. Perini’s
termination letter to the employee states the cause of discharge was due
to “unsatisfactory job performance.” Yet, Perini claimed this was not
the real reason for the employee’s discharge, claiming the employee
was discharged for dishonesty and Perini was just trying to protect the
employee from office gossip. Perini’s harsh stance that all instances of
dishonesty are dischargeable offenses is somewhat inconsistent with
Perini’s admittedly placing a false reason for an employee’s discharge
in that employee’s termination letter. Perini did not follow this strict
policy of termination when it came to her own conduct.
22 I do not credit Perini’s testimony that Respondent President Wil-
son had no input in the decision to discharge Hughes. Perini testified
she reviewed her decision with Wilson to return Hughes to work after
Hughes wore a union shirt, and it was at Wilson’s directive that Hughes
was interviewed for office positions after the Union filed an OSHA
complain on Hughes’ behalf. Perini’s testimony reveals Wilson was
heavily involved with decisions concerning Hughes after Hughes union
status became known, and I do not credit her claim that she discharged
Hughes without first seeking Wilson’s approval.
their testimony, as they did not wish to receive a fate similar to
Hughes.
Respondent also contends, in its brief, that Hughes should be
discredited because he testified he was assigned to jobs at
AAFB where he was working with only employees who did not
speak English. Respondent argues that Hughes eventually ad-
mitted he worked with three employees at the site who spoke
English, and contended he purposely could not recall the names
of anyone else he worked with to prevent his testimony from
being further challenged in support of its contention that he
should be discredited. However, Hughes testified he worked
closely with one Hispanic employee named Tito, who spoke
some English. Hughes did not learn Tito’s full name was Ear-
nest Bringas, until after Hughes was discharged. Hughes testi-
fied that Bringas would interpret for him when he wanted to
converse with other Hispanic employees. Hughes had no rea-
son to fabricate about his lack of knowledge of Bringas’ full
name, and I have concluded that given the nature of the as-
signments at the site, that Hughes never knew the names of
most of his coworkers. Hughes testified he worked a couple of
times with another individual named Ed Kelly who was trans-
ferred to another location. Hughes acknowledged that Eric
Gray and Joe Schlerf spoke English, but testified he did not
work with them. Obviously, Hughes did work with Gray on at
least one occasion, as he testified Gray attempted to give him
orders as a substitute foreman. Hughes also testified he worked
with Schlerf at least once as they had an argument over
Hughes’ use of a vibrator. However, I find that the tenor of
Hughes’ testimony was that, for the most part, he felt he was
working with Spanish speaking employees. I do not find his
failure to know the names of his coworkers, or that there were
exceptions to his claims of isolation to be sufficient to discredit
his testimony concerning the events leading to his discharge,
for which he testified in a straightforward fashion and for the
most part with good recall, which was corroborated by his daily
log, as well as by admissions in the testimony of Respondent’s
witnesses, as set forth above.
Respondent also points to several other alleged inconsisten-
cies on the part of Hughes at the hearing, such as the timing of
when he received the Union’s CDs from Lash, his initial claim
not to have first recognized Bester, and his initial testimony that
he received his final paycheck at his termination meeting with
Perini. I do not view Hughes’ changes in testimony on these
points to undercut those portions of his testimony I have cred-
ited. Rather, I find Hughes’ testimony changed in certain areas
over the course of the trial as his memory was refreshed by his
review of his daily log; his seeing and hearing Bester testify;
and through his investigation at home as to when he received
his final paycheck. I do not find, considering his demeanor,
that Hughes’ made misstatements with an intent to fabricate.
8. Analysis
a. Legal principles
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in Transportation Management, Inc., v. NLRB, 462
U.S. 393 (1983), the Board established an analytical framework
for deciding cases turning on employer motivation. To prove
PRIMO ELECTRIC 1199
that an employee was discharged in violation of Section
8(a)(3), the General Counsel must first persuade, by a prepon-
derance of the evidence, that an employee’s protected conduct
was a motivating factor in the employer’s decision. The ele-
ments commonly required to support such a showing are union
activity by the employee or employees, employer knowledge of
that activity, and antiunion animus on the part of the employer.
Wal-Mart Stores, 340 NLRB 220, 221 (2003). If the General
Counsel is able to make such a showing, the burden of persua-
sion shifts “to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
conduct.” Wright Line, supra at 1089. That burden requires a
respondent “to establish its Wright Line defense only by a pre-
ponderance of evidence.” Merillat Industries, 307 NLRB 1301,
1303 (1992).
It has long been held, as stated in Hahner, Foreman, & Har-
ness, Inc., 343 NLRB 1423, 1429 (2004), that:
. . . .it may be found that where an employer’s proffered
non-discriminatory motivational explanation is false, even
in the absence of direct evidence of motivation, the trier of
fact may infer unlawful motivation. Shattuck Denn Mining
Corp. (Iron King Branch) v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966); Fluor Daniel, Inc., 304 NLRB 970 (1991).
Motivation of union animus may be inferred from the re-
cord as a whole, where an employer’s proffered explana-
tion is implausible or a combination of factors circumstan-
tially support such inference. Union Tribune Pub. Co. v.
NLRB, 1 F.3d 486, 490–492 (7th Cir. 1993). Direct evi-
dence of union animus is not required to support such in-
ference. NLRB v. S0-White Freight Lines, Inc., 969 F.2d
401 (7th Cir. 1992).
In Washington Nursing Home, 321 NLRB 366, 375 (1996),
it was stated that:
Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case; even without
direct evidence. Evidence of suspicious timing, false reasons
given in defense, and the failure to adequately investigate al-
leged misconduct all support such inferences. Adco Electric,
307 NLRB 1113, 1128 (1990), enfd. 6 F.3d 1110 (5th Cir.
1993); Electronic Data Systems Corp., 305 NLRB 219
(1991); Visador Co., 303 NLRB 1039, 1044 (1991); Associa-
cion Hospital del Maestro, 291 NLRB 198, 204 (1988); and
Clinton Food 4 Less, 288 NLRB 597, 598 (1988).23
In La Gloria Oil and Gas Co., 337 NLRB 1120, 1124 (2002),
the timing of discharges on the heels of union activity and evi-
dence of disparate treatment resulted in a finding that the rea-
sons advanced for the termination of employees Saylor and
Lamp were pretextual and that they were terminated for their
union activity.
In NLRB v. Burnup & Sims, 379 U.S. 21, 23, (1964), the
Court held that an employer who terminates an employee in the

23 See also Promedical Health Systems, Inc., 343 NLRB 1351
(2004); Jewish Home for the Elderly of Fairfield County, 343 NLRB
1069, 1095 (2004); and Naomi Knitting Plant, 328 NLRB 1279, 1283
(1999).
mistaken belief that misconduct occurred in the course of pro-
tected activity violates the Act, even where the employer is
acting in good faith on that mistaken belief. See also Keco
Industries, 306 NLRB 15, 17 (1992).
b. Hughes’ October 10 discharge
Respondent hired Hughes, a journeyman wireman with a
master electrician’s license, on August 11. Hughes began
working in the field on August 12 at Respondent’s Naval
Academy site, where he revamped temporary lights and outlets.
On August 19, Hughes was transferred to Respondent’s Naval
Stadium site. Gunzelman, a foreman/superintendent and admit-
ted supervisor, had overall authority over both sites. Hughes
worked on skyboxes at the stadium where he installed fluores-
cent lighting and hooked up heaters and air-conditioners.
On August 27, Hughes reported to work at the Naval Sta-
dium wearing a Local 24 T-shirt. Hughes’ credited testimony
reveals that around 10 employees were present, along with
Gunzelman, when Hughes reported to work. Hughes refused
Gunzelman’s directive to take the union shirt off, and Gunzel-
man sent him home. Around five or six employees besides
Hughes were not wearing Respondent’s T-shirts, and around
four of those employees had logos other than Respondent’s
logo on their shirts. Gunzelman handed out Respondent’s
shirts to all the employees except Hughes, who were not wear-
ing them. Hughes was sent home, but received a call from one
of Respondent’s officials later in the day stating that he should
not have been sent home, that he was to return to work the next
day and would be paid for the day. However, Hughes was told
to report to the Naval Academy on August 28, rather than the
Naval Stadium jobsite. Based on admissions by Perini and
Gunzelman, as well as Hughes’ credited testimony I have con-
cluded Respondent had no uniform policy in effect prohibiting
Hughes from wearing a union T-shirt, and that Gunzelman’s
sending Hughes home, although outside the Section 10(b) of
the filing of the current charge, in the presence of a large num-
ber of employees because Hughes wore a union T-shirt consti-
tutes background evidence of animus based on disparate treat-
ment towards Hughes’ union activity.24 I do not find Respon-
dent’s phone call to Hughes on August 27, informing him that
he should not have been sent home, that he would be paid for
the day, and that he should report to work the next day at a
different jobsite negates a finding of animus on the part of Re-
spondent. There was admittedly no publication of a retraction
of Gunzelman’s conduct to the 10 or so employees at the site
who witnessed Hughes being sent home, and Hughes failure to
return to the jobsite where the transgression occurred could
only have the foreseeable coercive effect against future partici-
pation in union activities on the part of those employees. Par-
ticularly, where Respondent gave no assurances to those em-
ployees or to Hughes that Respondent would not interfere in the
future with their exercise in Section 7 rights. See Passavant
Memorial Area Hospital, 237 NLRB 138, 138–139 (1978).

24 A respondent’s actions outside the 10(b) period can be considered
as background evidence of animus towards union activity. See Wil-
mington Fabricator, Inc., 332 NLRB 57, 60 fn. 6 (2000), and Kau-
mograph Corp., 316 NLRB 793, 794 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1200
Following the incident on August 27, Hughes continued to
wear his union shirt every day at work until the termination of
his employment on October 10. On August 29, Hughes was
transferred to a new site the Naval Academy practice football
field. Hughes credited testimony reveals that on August 29, his
foreman instructed Hughes to use a ditch witch to dig a trench
about 200 yards long and 18 inches deep. Hughes pointed out
to the foreman that he was digging around unmarked electrical
pipe, which Hughes protested was a safety violation. The
foreman, upon consultation with Gunzelman, informed Hughes
to dig the trench by hand, rather than using the machine. On
September 2, Hughes reported back to the same site, and he
was instructed to continue to dig by hand. Hughes phoned
union official Lash, who contacted OSHA concerning the al-
leged safety violation that Hughes was being required to dig
around unmarked electrical pipe. The OSHA inspector arrived
at the site, and was speaking to Hughes, when the foreman,
Gunzelman, and Gunzelman’s superior arrived at the scene, at
which point Gunzelman told Hughes to leave the area and re-
turn to his job. Gunzelman testified Respondent’s officials had
their suspicions as to who filed the OSHA complaint. I find,
based on Hughes’ credited testimony, that he had voiced a
safety complaint to his foreman, who discussed Hughes’ com-
plaint with Gunzelman, and that Respondent’s officials con-
cluded that Hughes filed the OSHA complaint, or that it was
filed on his behalf. Moreover, I have concluded that since
Hughes was sent home just 7 days earlier for wearing a union
shirt, which he continued to wear to work, that Respondent’s
officials surmised that Hughes’ OSHA complaint was part and
parcel of his union activity.
On September 3, Hughes was instructed to report to Respon-
dent’s office, where he met with Perini, and then was inter-
viewed by several of Respondent’s officials. It was Hughes’
understanding that he was being interviewed for multiple posi-
tions, including an estimator’s job, a supervisory position, and
some type of dispatcher. He testified that following the inter-
views, Perini told him the salary, and asked which job he would
be interested in doing. Hughes testified he considered Perini’s
question to be a job offer. Hughes told her he would not be
interested in any of the jobs, but preferred to continue to work
with his tools in the field. Perini testified she received the in-
struction to put Hughes through the interviews from Respon-
dent’s president because Hughes had “indicated he was having
some difficulty working in the field. . . .” However, when Gun-
zelman was asked, while on the stand, the type of worker
Hughes was he testified that Hughes came to work and did
what he was supposed to do. Thus, I have concluded that Re-
spondent by attempting to entice Hughes into taking an office
job was attempting to remove Hughes from the field on Sep-
tember 3, because he had begun wearing a union shirt on Au-
gust 27, and because an OSHA complaint was filed on his be-
half by the Union on September 2. I have concluded that in
doing so, Respondent was attempting to isolate Hughes from
the remainder of its work force because of his union activity. I
have concluded that, although this conduct was outside of the
Section 10(b) period for filing a charge, that it may be consid-
ered as background evidence of animus on the part of Respon-
dent towards Hughes’ union activity.25
On September 4, Hughes was notified he was being trans-
ferred to the AAFB jobsite as of September 5. From that time
forward, Hughes who was 61, diagnosed with asbestosis, and
using an inhaler three to four times a day in plain view on the
jobsites was required to basically shovel dirt until his discharge
on October 10, although prior to his wearing a union shirt at
work Hughes had been assigned electrical work, which accord-
ing to Gunzelman he was performing in a satisfactory fashion.
On September 30 and October 1, Hughes’ credited testimony
reveals he gave out around six of the Union’s CDs to Respon-
dent’s employees either before or after work. Hughes asked the
employees if they had a computer at home, and if so, if they
wanted one of the discs. Hughes credibly testified he gave
Respondent witness Bester one of the CDs in the parking area
before work.26
On October 10, without warning, Plitt summoned Hughes to
Respondent’s trailer where Hughes met with Perini. Hughes
credibly testified Perini told him at the outset of the meeting
that they were going to terminate him today. When Hughes
asked the reason, Perini told him he was giving out the Union’s
CD to men on the job during working hours. Hughes testified
he denied Perini’s assertion to which Perini responded they had
a written statement from one of his coworkers. Perini refused
Hughes’ request to provide the name of his accuser or to pro-
vide him the reasons for his discharge in writing.27
I find that the General Counsel has made a prima facie case
that Hughes was discharged for engaging in protected Union
activity under the Board’s Wright Line analysis. Respondent
was aware of Hughes’ prounion status on August 27, when he
wore a union shirt to work and displayed animus towards
Hughes’ union activity by discriminatorily sending him home
for wearing the shirt in the presence of several coworkers.
When Hughes continued to wear a union shirt, and contacted
OSHA through the Union on September 2, Respondent reacted
again by seeking to offer him employment on September 3 that
would have removed him from fieldwork thereby attempting to
isolate him from the employees he was trying to organize.
When Hughes refused to bite at the offer, he was immediately
transferred to the AAFB site where he was required to shovel
dirt for most of the remainder of his employment, although up
until he had announced his pro-union status on August 27, he
according to Gunzelman, had been performing more skilled

25 See Wilmington Fabricator, Inc., supra, and Kaumograph Corp.,
supra.
26 As set forth in more detail in the credibility section, including con-
siderations of demeanor, I have not credited Bester’s claims as to the
date, time of day, and circumstances in which he received the disc from
Hughes and thereafter tendered it to Respondent’s officials. Respon-
dent witness Bringas failed to confirm Bester’s assertion that Bester
received the disc during working time. Moreover, the testimony of
Respondent witnesses Perini, Hogge, Schlerf, and Bester was inconsis-
tent as to the circumstances and timing in which Bester tendered the
disc to Respondent’s officials and as to how and when he gave he
signed statement concerning his receipt of the disc from Hughes.
27 I have credited Hughes’ version of the meeting over that of Perini
and Plitt for reasons explained in the credibility section of this decision.
PRIMO ELECTRIC 1201
electrical work in an adequate manner. Respondent’s actions
serve to color in a negative fashion its pronouncement in its
employee handbook that, “Primo will resist any efforts to bring
a union into the Company by all legal means at its disposal.”
On September 30 and October 1, Hughes began to distribute
the Union’s CD at the jobsite both before and after work to
Respondent’s employees. Respondent’s officials quickly
learned of Hughes’ activity. Schlerf, who described himself as
a lead man, directed Bester to tell Superintendent Hogge that
Hughes had provided him with the disc. Hogge then told
Bester to bring the disc in, while according to Bester not even
questioning Bester as to whether Hughes gave him the disc
during working time. Perini testified she directed Hall to have
Bester provide a written statement on October 4, which Bester
gave in a trailer occupied by two management officials. While
Bringas was named as a witness to the incident in Bester’s writ-
ten statement, Perini testified that even prior to meeting with
Bester and Hughes she had no intent and made no plans to in-
terview Bringas. Thus, Perini treated Hughes differently than
another employee she named, who Perini testified was termi-
nated for filing a false report against his supervisor. Perini
testified she obtained signed statements from all the witnesses
to the underlying incident before discharging that employee.
Contrary to Hughes, Perini did not discredit the other em-
ployee’s account until all witnesses were heard from.28 Perini
also testified that during her discharge meeting with Hughes,
she refused Hughes’ request to tell him the name of his accuser,
and she failed to inform him that Bringas was named as a wit-
ness to the event. Yet, Perini testified when she discharges
employees based on claims of sexual harassment she always
informs them of the names of their accuser. Perini testified she
refused to inform Hughes of the name of his accuser because
she felt that there would be some retaliation. Perini’s sole justi-
fication for this conclusion was, “the circumstances under
which the distribution was about.” Perini provided no testimo-
nial support for this alleged fear other than the fact that Hughes
was engaging in union activity. Thus, Perini admittedly dis-
criminated against Hughes in the manner in which she con-
ducted her investigation for similarly situated employees be-
cause Hughes was engaged in union activity. Perini also re-
fused Hughes’ request to provide the reasons for his discharge
in writing impacting on his ability to appeal that decision, al-

28 I find cases such as ATC/Forsythe & Assoc., 341 NLRB 501, 502
(2004), cited by Respondent to be distinguishable from the facts present
here. There an employee was found to be lawfully discharged, al-
though the investigation by the employer was found to be “less than
ideal.” However, it was noted that there was no persuasive evidence
that any shortcomings in the investigation were motivated by union
animus. It was also noted that the employee was discharged for failing
to report an accident, whereas the need to investigate concerned the
accident itself. In the present case, there is other background evidence
of animus to Hughes’ union activities, and Hughes was discharged for
allegedly lying during an investigation in circumstances where Perini
prior to conducting her investigation determined it was not necessary to
interview all witnesses to the underlying event. In doing so, she acted
in a disparate fashion to another employee who, as set forth above, was
also charged with lying, and I have concluded she was motivated to
shortchange Hughes’ investigation because of his union activity.
though she has placed the reasons for dismissal in letters of
other employees she has terminated.
I find that Hughes was discharged on October 10, 2003, in
violation of Section 8(a)(1) and (3) of the Act. I have con-
cluded that the General Counsel has established a prima facie
case under Wright Line of knowledge, animus, and timing of
the discharge pertaining to Hughes’ union activities, and that
the reasons Respondent advanced for the discharge were pre-
textual. Perini’s disparate treatment of Hughes, her failure to
adequately investigate Bester’s claim, along with Respondent’s
other actions towards Hughes concerning his union activity
demonstrate Respondent harbored strong animus toward that
activity. Additionally, while Perini testified she informed
Hughes that the reason for his discharge was lying during an
investigation, Respondent witness Bester credibly testified that
on May 3, 2004, Respondent’s attorney Walters told Bester that
Hughes was discharged for distributing the Union’s CD during
working time. Such a statement by counsel constitutes a shift-
ing position as to the cause of discharge taken by Respondent’s
representatives, and constitutes further evidence the reasons
provided for the discharge were pretextual. I also find that,
under all the circumstances here, including the manner in which
she conducted her investigation that Perini had determined to
discharge Hughes before meeting with Bester and Hughes, and
that she did not have a good faith belief that Hughes distributed
the CD during working time at the time she informed him he
was discharged. I find that, in fact, Hughes did not distribute
the CD during working time, and that even if Perini had a good
faith belief that he did, Hughes’ discharge would nevertheless
be unlawful because he was engaged in protected union activity
without participating in any misconduct. See NLRB v. Burnup
& Sims, 379 U.S. 21, 23, (1964), and Keco Industries, 306
NLRB 15, 17 (1992).
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) and (3) of the Act by
on or about October 10, 2003, discharging employee William
Hughes because he engaged in union activities.
2. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent having discriminatorily discharged employee
William Hughes must offer him reinstatement and make him
whole for any loss of earnings and other benefits, computed on
a quarterly basis from October 10, 2003, the date of Hughes’
discharge to the date of a proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended29

29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1202
ORDER
The Respondent, Integrated Electrical Services, Inc., d/b/a
Primo Electric, Glen Burnie, Maryland, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in union ac-
tivities.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer em-
ployee William Hughes full reinstatement to his former posi-
tion or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make William Hughes whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of William
Hughes and within 3 days thereafter notify Hughes in writing
that this has been done and that the discharge will not be used
against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place to be designated by the
Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back pay
due under the terms of this Order.
(e) Within 14 days after service by Region 5, post at its fa-
cilities in Glen Burnie and Lanham, Maryland, the Naval Acad-
emy and Naval stadium jobsites in Annapolis, Maryland, and
the Andrews Air Force Base jobsite in Camp Springs, Mary-
land, if the Respondent is still working at these sites copies of
the attached notice marked “Appendix.”30 Copies of the notice,
on forms provided by the Regional Director for Region 5, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are

mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
30 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional labor Relations Board” shall read “Posted Pursuant to a Judgment
of the United Stated Court of Appeals Enforcing and Order of the Na-
tional Labor Relations Board.”
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent on
or after October 10, 2003.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT discharge employees because they engage in
activities on behalf of the International Brotherhood of Electri-
cal Workers, Local 24, AFL–CIO, or any other labor organiza-
tion.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL within 14 days of the Board’s Order, offer William
Hughes full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make William Hughes whole for any loss of earn-
ings and other benefits he may have suffered as a result of the
unlawful discrimination against him in the manner instructed
by the Act.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of William Hughes and, WE WILL within 3 days thereafter notify
him in writing this has been done and the discharge will not be
used against him in any manner.
INTEGRATED ELECTRICAL SERVICES, INC., D/B/A PRIMO
ELECTRIC