Quantum Electric

National Labor Relations Board - Administrative Judge Opinions

Dec 8, 2003

21-CA-031670 (N.L.R.B. Dec. 8, 2003)

JD(SF)-90-03
Los Alamitos, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

QUANTUM ELECTRIC, INC.

and Cases 21-CA-31670

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 441,
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS

and 21-CA-31729

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 11,
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS

Amy Silverman, Atty., Counsel for the General Counsel,
Los Angeles, California
Ray Van Der Nat, Atty., Counsel for the Charging Party,
Local 441, Los Angeles, California
Larry Henderson, organizer Charging Party, Local 11,
Los Angeles, California
Michael J. Swanson, president, Quantum Electric, Inc.,
Los Alamitos, California
Jessica Losch, secretary-treasurer, Quantum Electric, Inc.

DECISION

Statement of the Case

LANA H. PARKE, Administrative Law Judge. Pursuant to charges filed in 19961 by
International Brotherhood of Electrical Workers, Local Union 441, International Brotherhood of
Electrical Workers (Local 441) in 21-CA-31670 and a charge filed by International Brotherhood
of Electrical Workers, Local Union 11, International Brotherhood of Electrical Workers (Local
11)2 in 21-CA-31729, the Regional Director of Region 21 of the National Labor Relations Board
(the Board) issued an Order Consolidating Cases, Consolidated Complaint and Notice of
Hearing (the complaint) on June 5, 1997, alleging that Quantum Electric, Inc. (Respondent)

1 All dates are in 1996 unless otherwise noted.
2 Local 441 and Local 11 are herein collectively called “the Union.”

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violated Sections 8(a)(1) and (3) of the National Labor Relations Act (the Act).3 The
consolidated case was tried in Los Angeles, California on July 14 and 15 and September 16,
2003.

ISSUES

1. Did Respondent violate Sections 8(a)(3) and (1) of the Act by the following conduct:
(a) In July, terminating employee Leandro Cornejo (Mr. Cornejo)?
(b) On August 2, issuing disciplinary notices to employees Vince Gonzales
(Mr. Gonzales), Tim Koenig (Mr. Koenig), and Kenneth McCloyn (Mr. McCloyn)?
(c) On August 2, terminating employees Mr. Gonzales, Mr. Koenig, Mr. McCloyn,
Juan Lozano (Mr. Lozano), and Sam Palazzola (Mr. Palazzola)?
(d) On September 9, refusing to hire or consider for hire Jeff Clark (Mr. Clark)?
(e) On October 24, terminating employee Damir Tomas (Mr. Tomas)?
(f) Since November 20, failing and refusing to reinstate employee Mike Kaspar
(Mr. Kaspar) to his pre-strike position of employment?

2. Did Respondent independently violate Section 8(a)(1) of the Act between June and
October by the following conduct:
(a) Threatening employees with termination because of their union activities?
(b) Threatening employees with refusal to hire because of their union activities?
(c) Interfering with employees by stating that if employees joined the Union, they
would be unemployed for months?
(d) Interfering with employees by telling an employee not to join the Union?
(e) Interfering with employees by forbidding an employee to discuss or negotiate
wages on behalf of fellow employees?
(f) Interfering with employees by directing employees to disavow an employee
association?
(g) Interrogating employees about their union activities or the union activities of other
employees?
(h) Creating the impression of surveillance of employees’ union activities?

On the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel, Respondent, and Local 441, I make the
following

Findings of Fact

I. Jurisdiction

Respondent, a California corporation, with a facility in Los Alamitos, California (the
facility), engages in the business of electrical construction. During a representative 12-month
period ending December 31, it purchased and received at its facility goods valued in excess of
$50,000 directly from suppliers located outside the state of California. Respondent admitted
3 Counsel for the General Counsel amended the complaint at the hearing to allege Curt
Cramer, foreman, as a supervisor, which Respondent admitted, and to reflect the correct names
of Brian Krause and Mark Carey, supervisors. Counsel for the General Counsel further
amended the complaint to allege that in July 1996 Respondent, through Curt Cramer, created
the impression of surveillance of employees’ union activities and threatened an employee with
termination because of his union activities, both of which allegations Respondent denied.
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and I find it to be an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent stipulated at the hearing, and I find, that Local 441 and Local 11
are labor organizations within the meaning of Section 2(5) of the Act. 4

II. Alleged Unfair Labor Practices

A. Respondent’s Business and Supervisory Structure

Respondent is a nonunion electrical contractor. In 1996, Respondent was engaged in
performing electrical construction work at five to seven major projects with a total electrical
employee complement of 18 to 25. Three of the projects were the USC Institute of Genetic
Medicine located at the USC Medical Center on Mission and Soto Streets in Los Angeles (the
USC site), the California Medical Center in downtown Los Angeles (the Cal Med site), and the
AMC movie theater complex in Long Beach (Long Beach site). Respondent employed
approximately ten electrical employees at the USC site and approximately ten electrical
employees at the Cal Med site whose shifts fell variously between the hours of 6:30 a.m. and
3:30 p.m. Mr. Vaccaro served as foreman at the USC site and Mr. Cramer at the Cal Med site.

The following individuals, employed by Respondent at relevant times in the following
positions and locations, were supervisors within the meaning of Section 2(13) of the Act:

Jessica Losch (Ms. Losch) Co-owner and Secretary/Treasurer
Mike Swanson (Mr. Swanson) Co-owner
Brian Krause (Mr. Krause) Office Supervisor
Mark Carey (Mr. Carey) Foreman (Long Beach site)
Steve Vaccaro (Mr. Vaccaro) Foreman (USC Medical Center site)
Curt Cramer (Mr. Cramer) Foreman (California Medical Center site)

The above foremen were not responsible for granting time off, laying off, or discharging
employees. Ms. Losch and Mr. Swanson exercised sole authority over those decisions.

B. Respondent’s Attendance Policy and Practice

Respondent’s policy regarding absenteeism and tardiness is set forth on its Unsatisfactory
Performance Warning form as follows:

A record of absenteeism and tardiness is kept by the office. A combination of either
[absenteeism or tardiness] can result in the termination of your employment. Three
written warnings in a one month period will result in immediate termination. In the event
of a medical or family crisis, a doctor’s note, or a release from the management of
Quantum Electric, Inc. is required to be excused from this written warning.

All other absences or tardies can only be excused by the management of Quantum
Electric, Inc.

Upon the occurrence of the third unexcused absence or tardy in a 1 year period, a final
written warning will be issued, and any occurrence thereafter [in] the 1 year period will
result in termination.
4 Where not otherwise noted, the findings herein are based on the pleadings, the
stipulations of counsel, and/or unchallenged credible evidence.
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Any absence or tardy, regardless of the number of previous occurrences, in which the
office has not been notified of the reason within 4 hours from the beginning of your
scheduled work time, can result in immediate termination.

Respondent gave three absence-related warning notices to, and thereafter on April 3,
terminated employee Gary Bletsch (Mr. Bletsch) for “failure to give advance notice to the office
when leaving jobsite early or taking days off.” Respondent issued a warning to Mr. Cornejo for
tardiness on July 15, noting his excuse of a “flat tire” and a warning to Mr. Gonzalez on July 30
for absenteeism, noting his excuse of “no transportation” and that he had left a message on the
office machine a half hour before his starting time.5

C. Union Activity at Respondent’s Jobsites

As early as March, Local 11 engaged in organizational activities among Respondent’s
employees. During May and June, union organizer, Charles Turpin (Mr. Turpin) visited the USC
and the Cal Med sites on several occasions and spoke to Respondent’s employees about
joining the Union. After one such visit to the USC site, Mr. Vaccaro told four or five employees,
“I wouldn’t join the union because they’ll have you sitting on the books six to nine months,
maybe even a year.” On another occasion, Mr. Vaccaro asked Mr. Palazzolo if he were “union.”
According to Mr. Lozano, following a May visit by Mr. Turpin to the Cal Med site, Mr. Cramer
told Mr. Lozano to tell other employees not to talk to the Union; if they didn’t stop, they would
get fired. Mr. Cramer denied making any such threat to any employee. I was not impressed
with Mr. Lozano’s demeanor as a witness. Further, his testimony regarding the conversation
was elicited piecemeal, which detracts from its credibility: in response to the first question, he
answered that Mr. Cramer had “told me not to talk to the union guy,” in response to the second,
that Mr. Cramer had said “he didn’t want us to be talking to the union,” in response to the third,
that Mr. Cramer had said “to tell the other guys not to talk about the union,” and in response to
the fourth, that Mr. Cramer “told me like, if we didn’t stop talking about the union, we were going
to get fired.” The record shows that union representatives were an open presence at
Respondent’s jobsites at least May through August. Other than Mr. Lozano’s testimony, there is
no evidence of any managerial attempt to discourage employees from interacting with them
during break times. In these circumstances, I credit Mr. Cramer’s denial.

By letters dated as follows, Local 11 notified Respondent that employees named below
had signed union authorization cards or were members of Local 11 and would be engaging in
union activities at work. Employee Information Sheets note the following dates and reasons for
subsequent termination of employment:

Employee name Date of letter Date and reason for termination

Ron Houston March 9 3/23 unstated
Gary Bletsch March 27 4/3 Failure to give advance notice [of absence]
Carlos Gutierrez May 14 5/17 quit. Better job offer from Union
Carlos Ayala May 14 5/17 quit. Better job offer from Union
Randy C. Gallegos August 7 8/8 quit joined the union
Mr. Manriquez August 7 8/8 quit…to join the Union

5 These were the only pre-August 2 warnings introduced into evidence.
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Osvaldo Sosa August 7 8/8 quit joined the union
Michael Keas August 7 8/8 quit—joined the Union
Curt Spencer September 9 9/13 quit without notice—union had job for him6

D. The Termination of Mr. Cornejo

In July, the Union held an informational meeting at the union hall about four or five
blocks away from the USC site beginning at about 3:30 p.m. (the July meeting). Mr.Cornejo
asked Mr. Vaccaro if he could leave work early from the USC site to attend the July meeting.
Mr. Vaccaro gave permission. On a day following the July meeting, according to Mr. Cornejo,
Mr. Vaccaro asked Mr. Cornejo how the meeting was; Mr. Cornejo said it was fine. Mr. Vaccaro
told Mr. Cornejo that if he attended another meeting, he needed to give advance notice, in
Mr. Cornejo’s words, “two months notice or something like that.”7

According to Mr. Cornejo about two weeks later on July 17, Mr. Vaccaro again
mentioned the union to him. Mr. Cornejo initially testified that Mr. Vaccaro asked for news of a
postal service employment test Mr. Cornejo had taken and said if he went “to vote the union,
[Mr. Vaccaro] is going to replace me for somebody else.” Later Mr. Cornejo testified,
“[Mr. Vaccaro] told me if I—if I go to the union or to another job, that he’s going to replace me
before—before I get to know the [post office test] results.” I find the statements attributed to
Mr. Vaccaro ambiguous. It is not clear Mr. Vaccaro was warning Mr. Cornejo that supporting
the union would result in his discharge, an unquestionably unlawful threat. Respondent appears
to have described employees’ actions in quitting to obtain employment covered by a union
contract as “joining the union.” Mr. Vaccaro’s statement could thus be understood as a warning
to Mr. Cornejo that if he voluntarily left Respondent’s employment for another job, Respondent
would replace him, a lawful admonition. I cannot find, based on Mr. Cornejo’s account, that
Mr. Vaccaro made any antiunion threat or even expressed union animus.

At the end of Mr. Cornejo’s shift on the same day as his conversation with Mr. Vaccaro,
Mr. Vaccaro told him to pick up his tools and leave. Mr. Cornejo contacted Ms. Losch and
asked why he had been fired. Ms. Losch told him it was a reduction in force.8 Ms. Losch
signed a letter dated July 17 that reads, “To whom it may concern: Leandro Cornejo was layed
off due to a reduction in forces on July 17, 1996. His last day worked with Quantum Electric Inc.
was July 17, 1996.”

E. The August 2 Union Meeting and Consequent Employee Discipline

Sometime prior to August 2, the Union announced a meeting would be held at the union
hall on August 2 at 2:00 p.m. (the August meeting), during Respondent’s normal work schedule.
Union representatives advised Respondent’s employees they needed to attend the meeting to
6 Respondent referred to employees quitting to obtain employment on union-signatory
jobsites as “quit[ting] to join the union” or “join[ing] the union.”
7 I do not accept Mr. Cornejo’s vague testimony as to how much advance notice
Respondent required. I also find it reasonable to infer that Mr. Vaccaro meant advance notice
would have to be given to attend any meeting scheduled during working hours and that Mr.
Cornejo understood him to mean that.
8 Respondent’s practice was to lay off employees at the end of their work shifts without
“much notice at all…[out of] concerns that employees might not react well.”
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get information on joining the Union.9 No one explained why the Union scheduled the meeting
to conflict with Respondent’s work hours, but attendance did require Respondent’s employees
to leave work early. Various employees from either the USC or the Cal Med site left work early
to attend the August meeting in the following circumstances:

Mr. McCloyn. Following a morning employee meeting with Mr. Vaccaro at the USC site,
Mr. McCloyn asked Mr. Vaccaro’s permission to leave early to go to the union hall.
Mr. Vaccaro directed him to inform Respondent’s office. At about 8:45 a.m.,
Mr. Vaccaro told employees they did not have to call the office because he already had,
and the company required each of them to sign a document entitled “Unsatisfactory
Performance Warning” (performance warning) before they could leave work.10
Explanation line C (“Leaving before end of scheduled work period”) was marked.11
Mr. Vaccaro explained the performance warning was a reprimand for leaving early.
Mr. McCloyn and Mr. Gonzales signed the performance warning at that time. At about
1:55 p.m., the employees left work and attended the union meeting. Mr. McCloyn had
never before left work early.

Mr. Gonzales. At about 8:00 or 9:00 a.m. at the USC site, Mr. Gonzales asked
Mr. Vaccaro if he could leave work early. Mr. Vaccaro said, “Oh, you’re going to the
Union, too…you’d only be hurting the company. Probably be burning your bridges.”12
As to Mr. Gonzales’ leaving early, Mr. Vaccaro said something to the effect that he had
already discussed it with the office. At about 1:00 p.m., Mr. Vaccaro presented
Mr. Gonzales with a performance warning, explaining that Mr. Gonzalez had to sign it for
leaving without authorization, which Mr. Gonzales did. Mr. Gonzales left work at about
1:45 p.m. to attend the union meeting. At about 6:00 p.m., Mr. Swanson telephoned
Mr. Gonzales at home and told him he was fired because he left work early.

Mr. Koenig. Mr. Koenig did not testify. He worked at the USC site as of August 2. He
signed an Unsatisfactory Performance Warning on August 2 issued for “Leaving before
end of scheduled work period.” In the reason-for-termination section of Mr. Koenig’s
Employee Information Sheet, the words “Left job early without prior notice to the office”

9 Mr. Gonzales testified that Mr. Turpin told employees to come for a “placement test,” but
Mr. Lozano testified that at the meeting union leaders only told employees about the
advantages of union membership.
10 The performance warning set forth Respondent’s attendance policies as detailed supra.
11 Mr. McCloyn testified that no explanation line was marked when he signed the
performance warning. I attach no significance to Mr. McCloyn’s testimony.
12 I do not infer union animus from Mr. Vaccaro’s statements. In the circumstances, I believe
they are susceptible of a lawful meaning. Prior to August, Respondent had experienced a
number of employees leaving its employ to obtain union-represented jobs (Carlos Gutierrez,
Ron Houston, Carlos Ayala). Mr. Vaccaro’s words could reasonably be taken to mean that if
Mr. Gonzales followed that pattern, his leaving would hurt the company by depriving it of yet
another experienced worker. As to the “burning your bridges” statement, such might also
reasonably be taken to mean that union membership restrictions, not retaliation, could limit
future employment. The reasonableness of such an interpretation is reinforced by Mr. Vaccaro
having earlier told employees the union could have them “sitting on the books six to nine
months, maybe even a year.” That Respondent had no retaliatory intent is demonstrated by its
having marked Carlos Gutierrez and Carlos Ayala, who quit because of a “better job offer from
Union,” as “rehirable.”
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are crossed through and replaced with “Reduction in work force. We had check
prepared and sent to job and he had left before quit time and we could not give him his
final check.” He was rated ineligible for rehire because he left work early.

Mr. Palazzolo. On the day prior to the August meeting, according to Mr. Palazzolo who
was working at the Cal Med site, he telephoned Respondent’s office and informed Kerry
McFarland (Ms. McFarland), office manager, that he had to leave work early the
following day. There is no evidence Respondent approved Mr. Palazzolo’s prospective
absence. On the morning of August 2, Mr. Palazzolo told Tom Hooper (Mr. Hooper) who
was filling in for Mr. Cramer at the Cal Med site that he had already told the office he
was leaving early. Mr. Palazzolo left at about noon to attend the union meeting. That
evening Mr. Swanson telephoned Mr. Palazzolo and said he was laying him off.
Mr. Palazzolo asked whether it was for leaving early or for a reduction in force.
Mr. Swanson said it was a reduction in force.13 Mr. Palazzolo telephoned Ms. Losch
and protested his discharge; Ms. Losch said work was slow. Mr. Palazzolo’s Employee
Information Sheet states the reason for termination, “Reduction in work force. Left job
early before lay off check arrived.” He was rated ineligible for rehire because he left
work early.14

Mr. Lozano. Mr. Lozano told Mr. Hooper he had to leave early that day for an
appointment. Mr. Hooper said he would call the office. Mr. Hooper never got back to
Mr. Lozano. Mr. Lozano and Mr. Palazzola left the Cal Med site at about 11:30 a.m. to
attend the Union meeting. Before he left, Mr. Lozano told Mr. Hooper he was leaving,
and Mr. Hooper said, “Okay.” That evening, Mr. Swanson telephoned Mr. Lozano and
asked why he had left work early. Mr. Lozano said he went to a union meeting.
Mr. Swanson told Mr. Lozano he was fired for leaving early. Following Mr. Swanson’s
call, Mr. Lozano called Ms. Losch and told her he wanted his job back. She said
Respondent was going to have a meeting to discuss employees’ terminations, and she
would get back to Mr. Lozano, but she never did. On prior occasions, Mr. Lozano had
obtained permission to leave work early for various reasons without repercussion.

Peter Manriquez (Mr. Manriquez). Mr. Manriquez apparently also left early to attend the
August meeting. No evidence was presented regarding the circumstances of his
leaving. Mr. Manriquez’s Employee Information Sheet shows he received a written
warning on August 5 for “leaving the job early without prior notice on 8-2-96,” and that he
voluntarily terminated employment on August 8 “to join the Union.”

Respondent sent a “Notice of Termination” dated August 2 to Mr. McCloyn,
Mr. Gonzales, and Mr. Lozano, which stated that each had been “terminated from employment
with Quantum Electric, Inc. as of August 2, 1996. Cause of termination is leaving job without
authorization.”

Respondent sent Mr. Palazzolo a “Notice of Termination” dated August 2, which read:
“Samuel Palazzolo has been terminated from employment with Quantum Electric, Inc. as of
August 2, 1996. Cause of termination is reduction in forces.”

13 Mr. Palazzolo’s testimony in this regard was not consistent. He initially testified that
Mr. Swanson said he was laid off because he left early and only after Mr. Palazzolo’s objection
changed the reason to a work reduction.
14 Ms. Losch testified Respondent decided to lay off Mr. Palazzolo before its managers were
aware he had left the job early.
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F. Respondent’s Clothing Policy

Prior to August 8, Respondent did not require employees to wear specified work
clothing. Some employees wore tee shirts with logos such as “Nike” or designs on them. On
August 8, Respondent issued a memorandum to employees (clothing policy memo) that stated,
in pertinent part:

Clothing shall not have excessive wear (ie. holes, tears, rips) graphics or printed text
other than Quantum Electric, Inc. approved or issued clothing.

Hard hats shall not have any attached decals or graphics. Quantum Electric, Inc.
excepted. Name identification shall be made with removable label only, ie. Dymo,
Avery, P-Touch.

G. Mr. Clark’s Unsuccessful Application for Employment

On August 27, Mr. Clark, an 18-year member of Local 441, applied for a job with
Respondent upon the advice of a Local 441 organizer. Another individual, Rudy Carr (Mr. Carr)
applied for work at the same time. After completing his application, on which he stated his
membership in Local 441, Mr. Clark took Respondent’s 49-question test, missing five.15
Mr. Clark observed that Mr. Carr was called into Respondent’s office for an interview,
presumably with Ms. Losch. When he came out, in response to Mr. Clark’s inquiry, Mr. Carr
said he had been hired. Ms. Losch then interviewed Mr. Clark for about 20 to 30 minutes,
asking him, among other things, whether he was there to organize for Local 441 and stating that
Local 11 had taken a couple of her key people.16 Ms. Losch pointed out that Respondent
started their journeymen at $15.00 an hour, and asked how Mr. Clark could work for so low an
amount.17 Mr. Clark said he was near the bottom of Local 441’s out-of-work list and was
looking for work. Ms. Losch said she would call him if Respondent could put him to work.
Following the interviews, Ms. Losch noted on Mr. Clark’s application that he was eligible for a
wage rate of $15 per hour. Respondent’s records show it hired the following employees on the
following dates at the following wage rates:

Mr. Carr August 2818 $14.00 per hour.
Mike Kaspar September 3 15.00 per hour
Robert Wilson September 5 14.00 per hour
Donald Low September 16 14.00 per hour
Stewart Gonzales September 25 15.50 per hour

In determining whether to hire an applicant, Ms. Losch considered a combination of
factors such as test results, the applicant’s experience and knowledge of the trade, past work,
and her assessment of the applicant’s responsiveness and motivation. Respondent also “[went]
for the lower wage rate in many…cases.”
15 Respondent’s average applicant missed 12 to 14 questions.
16 I take Ms. Losch’s statements to mean that key employees had quit to take union-
represented employment.
17 Mr. Clark estimated that the journeyman rate under the Union contract was $25 or $26 an
hour at that time.
18 Although the written record shows Mr. Carr’s hire date to be August 28, Mr. Carr was,
according to Mr. Clark’s testimony, offered the job on August 27, prior to Mr. Clark’s interview.
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On September 6, Mr. Clark telephoned Respondent and asked if he could be employed.
The person answering reported that Ms. Losch said she did not know her manpower needs.
Mr. Clark contacted Respondent again on September 9 and asked Ms. Losch if Respondent
could put him to work. According to Mr. Clark, Ms. Losch said not at that time as Respondent
had problems with “somebody trying to form an employee association.”19 I do not credit
Mr. Clark’s testimony of his September 9 conversation with Ms. Losch. Not only was I
unimpressed with Mr. Clark’s manner while testifying, I find his account lacks inherent congruity.
There is no evidence that Ms. Losch made any negative statements regarding the employee
association to anyone, and there is nothing in prior communications between Ms. Losch and
Mr. Clark, all of which were brief and noncommittal, to suggest she would impart such a concern
to him.

H. The Employment and Union Activity of Mr. Kaspar

On about August 28, Mr. Kaspar applied for employment with Respondent. Mr. Kaspar
was at the time a paid organizer for Local 441 and sought employment with Respondent for the
purpose of “salting”20 but did not disclose his union affiliation. Ms. Losch interviewed him
briefly, saying she was thinking about hiring soon, and asked him if he would work for $15.00 an
hour, Respondent’s journeyman rate. The next day when Mr. Kaspar said he was willing to
work permanently, Ms. Losch hired him.

Respondent assigned Mr. Kaspar to the Long Beach site. According to Mr. Kaspar, on
his first day, Mr. Carey asked him if he were in the union. Mr. Kaspar said he had been a
member of Local 441 since 1988. Mr. Kaspar faxed Respondent a letter dated September 3, as
follows in pertinent part:

This is to inform you that I am a member of [Local 441]. I have made it known to some
workers who asked, that I am indeed union. I plan on talking to workers of Quantum
Electric about the benefits of being in the union. I believe that the union can be of great
benefit not only to the workers but to the company as well.

The following day, according to Mr. Kaspar, Mr. Carey asked him if he were talking to
employees about the Union, saying the company had inquired. When Mr. Kaspar affirmed it,
Mr. Carey said Mr. Kaspar needed to let him know which employees were interested in the
union because he knew he would have to replace those employees. At lunch break that same
day, Larry Henderson and Richard Cheeks, two organizers from Local 11, visited the jobsite,
answered employee questions, and handed out “paperwork.”

Although Mr. Kaspar’s testimony is uncontroverted in this and other instances, I do not
credit portions of his testimony, including the statements he attributes to Mr. Carey. Mr. Kaspar
has figured in at least three other Board cases in connection with his “salting” activities, and he
is clearly sophisticated in union organization and litigation matters. In one of the cases, he
revealed significant animosity toward nonunion employers, which detracts from his credibility.
See W.D.D.W. Commercial Systems, 335 NLRB 260, 268 (2001) wherein Mr. Kaspar was
19 The circumstances surrounding the formation of the Employee Association are described
below.
20 “Salting…involves members or organizers of a local union applying for work at nonunion
employers engaged in the construction and electrical contracting industry in order to organize
the employer's employees.” Corporate Interiors, Inc., 340 NLRB No. 85, at slip op. 5 (2003).
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quoted, “…If we can't get the workers, bankrupt the contractors." In another case, Mr. Kaspar
was found to be an unreliable witness. See Montano Electric, 335 NLRB 612, ALJ dec. fns. 13
through 15 (2001) where the ALJ specifically discredited Mr. Kaspar’s testimony. I too did not
find Mr. Kaspar to be a forthright or sincere witness, and specific incongruities in his testimony
cause me to doubt his version of several events. With regard to his assertions about
conversations with Mr. Carey, I note Mr. Kaspar’s September 3 letter to Respondent does not
mention Mr. Carey’s alleged interrogation. Had Mr. Carey interrogated Mr. Kaspar, I am certain
he would have detailed it in his letter. His failure to do so casts doubt on his testimony.
Moreover, when questioned about his testimony in prior NLRB hearings, he said he “[didn’t]
know” if his testimony had ever been discredited. It is improbable Mr. Kaspar was ignorant of
the findings in Montano, and I find his testimony disingenuous at best. Finally, I find
Mr. Kaspar’s testimony that Mr. Carey, on September 4, asked him which employees he had
talked with about the union, saying he would have to replace them, inherently implausible.
There could be no reason for Respondent to ask if Mr. Kaspar were talking to employees about
the union as he had just notified them of that fact in writing, and employees’ union activity had
been open and notorious. Union representatives visited the jobsites regularly, joined employees
at breaks, and distributed literature, all of which must have been apparent to management.
Indeed, Mr. Kaspar included Mr. Carey in his activities. As related below, Mr. Kaspar gave a
newly drafted Employee Association form to Mr. Carey who said it “looked good.” Mr. Carey’s
approving response is inconsistent with the threats Mr. Kaspar ascribes to him. Finally, in
explaining his reasons for engaging in a strike (described hereafter) to Mr. Carey, Mr. Kaspar,
by his own account, did not include any of Mr. Carey’s alleged behavior as an “unfair labor
practice.” His failure to do so casts further doubt on the veracity of his account. Accordingly, as
to this and other testimony noted below, I have declined to accept Mr. Kaspar’s statements.

I. The Employee Association

In early September, after talking to employees at the Long Beach site about wages and
working conditions, Mr. Kaspar suggested employees form an association and work together to
improve working conditions. On September 9, he created application forms for the so-called
Quantum Electric Employee Association, which provided space for name, address, phone
number, and areas of employment concerns, and read as follows in pertinent part:

Employees of Quantum Electric are forming an Employee Association. This association
will work to improve working conditions for all field electricians working for Quantum. If
you would like to join, or have more information please contact Mike Kaspar who is an
employee of Quantum and is currently assigned at AMC Theater in Long Beach. Please
fill out the enclosed information sheet and send it to…Mike Kaspar…

On the following day, Mr. Kaspar disseminated the forms to workers and to Mr. Carey
who said it looked good to him. Mr. Kaspar drew up another version of the application form,
stating the goals of the association and claiming that interest among some employees was high
“despite management’s attempts to discourage membership,” and disseminated that at work as
well. On that day or the next, Mr. Krause came to the Long Beach site with a document for
employees to sign. According to Mr. Kaspar, Mr. Krause said the purpose of the document was
to let employees know that Respondent wanted nothing to do with an employee association,
that they were not condoning it, and they didn’t want it to exist.21 Six employees including
Mr. Carey signed the document, dated September 6, which read:

21 I do not credit Mr. Kaspar’s testimony as to what Mr. Krause said.
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One of our employees is in the process of trying to form an employee association
under the name of “Quantum Electric Employee Association.” The management of
Quantum Electric, Inc. has no affiliation, does not authorize, or sanction the use of the
name Quantum Electric in any association.
Quantum Electric, Inc. does not allow any association to conduct its business
during scheduled work periods on our jobs except during scheduled coffee or lunch
breaks.
If you have any questions about associations or organizations that appear to be
associated or doing business with our Company, please feel free to call any of Quantum
Electric, Inc. management.

On September 10, Mr. Kaspar telephoned Ms. Losch after work and told her employees
felt Respondent should raise its wages to be more in line with other non-union contractors in the
area, and suggested a $2.00 per hour raise for journeymen and a $1.00 per hour raise for
apprentices. According to Mr. Kaspar, Ms. Losch said, “You have no right to speak to any of the
other workers about their wages. If you want to talk about your own wage, that’s fine. If you’re
not happy with the amount of money that you’re making here, you’re free to quit, and the other
employees, if they’re not happy making what I’m paying them, then they’re free to quit also, but
you have no right to discuss other people’s wages with them or with me.” Mr. Kaspar said he
intended to continue speaking to employees, that they wanted a democracy not a dictatorship.
According to Mr. Kaspar, Ms. Losch said Respondent would stick with its policy and that
Mr. Kaspar was not allowed to speak to her on behalf of other employees. Although Ms. Losch
had no independent recollection of this conversation, she identified a memorandum she had
prepared for Respondent’s attorney on September 12 in which she memorialized the
conversation as follows:

Mike Kaspar called me at the office around 4:15 pm on Tuesday afternoon on Sept. 10,
1996. He stated he was representing several employees as a representative of the
Quantum Electric Employee’s Association. He stated that our wages were below
industry averages, even for non-union employees. I told him if he felt he merited a raise,
that the procedure presented to him in his job orientation meeting with me was: after one
month with the company he could request an evaluation from his supervisor and we
would evaluate whether or not there was a change in his status that would merit a raise.
He restated that he was not seeking a personal merit raise for himself, but was
requesting general raise for all employees, $1 for apprentices and $2 for journeymen. I
restated to him, according to our company policy, each employee must make their own
individual request for an evaluation for a wage increase and that the company does not
recognize his request for any other employee than himself. He said, do you want me to
tell the employees you are dictator and this is not a democracy. I said you may tell them
what you wish. He came back to his original request of a raise for the employees and I
referred again to the company policy, told them [sic] that this conversation was just going
around and around and it was time to end it. I also told him if had future concerns to
discuss them with his supervisor or he could call us.22

22 I credit Ms. Losch’s memorialized account of her September 10 conversation with
Mr. Kaspar.
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J. Mr. Kaspar’s Strike

Mr. Kaspar commenced a strike against Respondent, which he characterized as an
“unfair labor practice strike.” By fax dated September 12, he informed Respondent, “I, Mike
Kaspar, am on strike as of 9-12-96, due to violations of workers rights under the National Labor
Relations Act. I am not quitting my job. I am on strike.” The following morning, by telephone,
Mr. Carey told Mr. Kaspar that Respondent had informed him Mr. Kaspar was on an economic
strike because of wages. Mr. Kaspar said the strike was for Respondent’s violations of
employee rights, including the interrogation of Mr. Clark during his employment interview,
Ms. Losch’s telling him he could not discuss other workers’ wages with her and that he had no
right to be involved in what their pay practices were, and his awareness of the termination of
employees from another jobsite because of their union activities. Mr. Carey asked how long
Mr. Kaspar would be out on strike; Mr. Kaspar said he did not know.

By letter dated September 12, Ms. Losch wrote to Mr. Kaspar as follows:

The Company is in receipt of your September 11, 1996 and September 12, 1996 letters
in which you claim to be on strike from the Company due to alleged “violations of
workers rights under the National Labor Relations Act.”

The Company has not engaged in any unlawful conduct. You are an economic striker.
Accordingly, the Company has the legal right to replace you.

If you do not report for work at the Company’s [Long Beach site] within three (3) working
days of your receipt of this letter, the Company intends to replace you. If you elect to
report for work within the period described above, you will be assigned to the job duties
you performed on your most recent day of work, September 11, 1996.23

Thereafter, Respondent filled Mr. Kaspar’s position with another worker.24 Mr. Kaspar
picketed the Long Beach site, sporadically, over the next two months. Mr. Kaspar picketed on
about six occasions in all and was sometimes joined by two Local 11 organizers.

By personal delivery of a letter dated November 19, 1996, to Respondent’s office
Mr. Kaspar offered to return to work, as follows:

This is to inform you that I, Mike Kaspar, am offering to unconditionally end my Unfair
Labor Practice Strike against Quantum Electric. I wish to return to work immediately.
Please contact me as to where and when to report to work.

Respondent did not answer Mr. Kaspar’s offer to return to work because Mr. Swanson
and Ms. Losch believed he had quit his job in September when he failed to return to work. After
sending his letter of November 19, Mr. Kaspar called to speak to Ms. Losch and an unidentified
23 Counsel for the General Counsel characterizes this letter as placing a time limitation on
Mr. Kaspar’s strike. However, the letter only gives a deadline beyond which Mr. Kaspar will be
permanently replaced.
24 Although Ms. Losch could not recall specifically who was hired to fill Mr. Kaspar’s
position, she testified that anyone hired after September 12th could have been slotted into
Mr. Kaspar's vacant position.
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male speaker told him that Ms. Losch said he had been replaced and there was no longer a job
available for him. Respondent’s records show only two hires after November 19 at the following
wage rates: (1) Fernando Espinoza--$7.00, (2) Steve Easton--$20.00.

K. Respondent’s Discharge of Mr. Tomas

When Respondent hired Mr. Tomas on September 19 to work on the Cal Med site, he
signed Respondent’s August 8 clothing policy memo. While working, he observed other
employees wearing tee shirts with such logos as “Santa Anita” and “Marlboro.” After a week on
the job, Mr. Tomas wore tee shirts with “Nestle” or “UCLA” superscribed on them. Upon the
conclusion of the Cal Med site job, Respondent transferred Mr. Tomas to the Long Beach site
supervised by Mr. Carey. According to Mr. Tomas, employees at the Long Beach site wore tee
shirts with such logos as “Harley-Davison.” Ms. Losch and Mr. Cramer maintained that after
issuance of the clothing policy memo, employees no longer wore logo-superscribed tee shirts.
Mr. Cramer testified that after the policy issued, Respondent gave collared blue tee shirts to
employees to wear.

In October, Mr. Turpin visited the Long Beach jobsite and talked about union benefits
with a group of employees that included Mr. Carey. Mr. Turpin gave Mr. Tomas a tee shirt
bearing a Local 11 insignia. On October 24, Mr. Tomas wore the Local 11 tee shirt to work.
Mr. Carey told him he was not supposed to wear that shirt on the job site. Later, Mr. Carey told
Mr. Turpin that Ms. Losch had said she would like him to turn the shirt inside out. Mr. Tomas
refused, and Mr. Carey told him to go to Respondent’s office. Mr. Tomas gathered his tools and
reported to Respondent’s office. Ms. Losch told Mr. Tomas that if he refused to turn the shirt
inside out, he would be written up and after the second offense, he would be fired. Mr. Tomas
said, “Well, I’m not going to do it.” Ms. Losch gave him a performance warning form to sign and
said she would mail him his check. The explanation checked on the performance warning form
read “Violation of the company dress code.” Ms. Losch’s further written comment read,
“Wearing T-shirt or hard hat with unauthorized labels or logo—employee came to office refused
to turn shirt inside out because Union would not let him join if he didn’t – Employee terminated
for refusal to follow company policy.”

III. Discussion

A. Alleged Violations of 8(a)(1)

The General Counsel alleged at Paragraph 12 that Mr. Vaccaro violated Section 8(a)(1)
of the Act when he (1) told employees if they joined the union, they would be unemployed for
months, (2) threatened an employee with termination if he joined the union, and (3) told
employees not to join the union. The first allegation relates to Mr. Vaccaro’s having told several
employees in June or July that he wouldn’t join the union because “they’ll have you sitting on
the books [six months to a year].” In the Board’s view, "generally, a supervisor may lawfully
express his or her personal views of or experience with unionism," Baddour, Inc., 281 NLRB
546, 548 (1986). Further, "The Act does not preclude a supervisor from expressing opinions or
pronouncing antipathy to unions so long as the statements are not coercive [footnote omitted].”
Wilker Bros. Co., 236 NLRB 1371, 1372 (1978). It is clear Mr. Vaccaro merely stated his
reasons for not wanting to join the union and his opinion that membership might result in an
employee remaining on the union’s out-of-work list and unemployed for significant periods of
time. There was nothing in Mr. Vaccaro’s statement to suggest Respondent would take any
unfavorable action toward employees. I find Mr. Vaccaro’s statement reflected his personal
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opinion and was uncoercive. As to the remaining allegations relating to Mr. Vaccaro, there is no
credible evidence to support them. Accordingly, I shall dismiss these allegations of the
complaint.

The General Counsel alleged at Paragraph 13 that Ms. Losch violated Section 8(a)(1) of
the Act when she (1) interrogated applicants about their union activities, (2) threatened that
union affiliated applicants would not be hired because of their union activity, and (3) forbade an
employee from discussing or negotiating on behalf of fellow employees regarding wages.

As to the first allegation, during Ms. Losch’s interview of Mr. Clark, she asked him if he
were applying in order to organize for the union. The Board’s test of an interrogation in violation
of Section 8(a)(1) is “whether, under all the circumstances, it reasonably tends to interfere with,
restrain, or coerce employees in the exercise of their Section 7 rights…Among the factors to be
considered are the background of the questioning, the nature of the information sought, the
identity of the interrogator, and the place and method of the questioning.25 I find in the instant
circumstances that Ms. Losch’s question was not coercive. Mr. Clark applied for employment at
Local 441’s suggestion and openly listed himself as its member. No hostility or threat, explicit or
implied, accompanied Ms. Losch’s question. The question itself along with Ms. Losch’s query
as to how Mr. Clark could work for so low an amount suggests Ms. Losch was attempting to
ascertain if Mr. Clark had a sincere desire for employment with Respondent. I recognize that
"motive or intent in making [a] statement has no relevancy in an 8(a)(1) context…” and that
lawfulness "does not depend on motive or the successful effect of the coercion," Exterior
Systems, Inc., 338 NLRB No. 82, slip op. 4 (2002). However, viewed objectively and in context,
Ms. Losch’s question reflects an innocuous and legitimate business concern unlikely to restrain,
coerce, or interfere with an employee’s rights guaranteed under the Act. Ms. Losch accepted
Mr. Clark’s response “without objection or further probing.”26 I conclude, therefore, that
Ms. Losch did not violate the Act by asking Mr. Clark if he sought employment in order to
organize for Local 441.

As to the second allegation, it presumably relates to statements Ms. Losch made to
Mr. Clark, and I find she made no threat that union affiliated applicants would not be hired.

As to the third allegation, it is undisputed that Ms. Losch declined to discuss the wages
of other employees with Mr. Kaspar. Essentially, Mr. Kaspar sought to negotiate wages for
other employees, and Respondent refused to do so. The General Counsel has not explicated
why Respondent’s refusal violates the Act. The Board does not require an employer to grant
recognition to a union or to enter into a bargaining relationship voluntarily. See Terracon, Inc.,
339 NLRB No. 35, slip op. 4 (2003). Presumably, the same reasoning applies to employee
association attempts to achieve bargaining rights. As I have not accepted Mr. Kaspar’s
testimony that Ms. Losch told him he had no right to talk to other employees about their wages
or that she forbade him from doing so, I find there is no evidence of any violation of the Act in
Ms. Losch’s interchange with Mr. Kaspar regarding employee wages.

25 SKD Jonesville, 340 NLRB No. 11, at slip op. 2-3 (2003), quoting Rossmore House, 269
NLRB 1176, 1177 (1984) enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1995); Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985)
26 See West Maui Resort Partners, 340 NLRB No. 94 at slip op. 6 (2003) (asking an
employee how he felt about the union, in the circumstances, did not reasonably tend to restrain
or coerce employees.)
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The General Counsel alleged at Paragraph 14 that Mr. Carey violated Section 8(a)(1) of
the Act when he (1) interrogated employees about their and other employees’ union activities
and (2) created an impression of surveillance by directing an employee to inform him of the
union activities of other employees. These allegations are based on the testimony of
Mr. Kaspar, which I have discredited. Accordingly, I find no evidence that Mr. Carey violated the
Act, and I shall dismiss the allegations of Paragraph 14 of the complaint.

The General Counsel alleged at Paragraph 15 that Mr. Krause violated Section 8(a)(1)
of the Act when he directed employees to sign Respondent’s written response to the formation
of the Employee Association. The General Counsel does not allege the written response to be
unlawful, and there is nothing in it of a restraining or coercive nature. The response merely
notifies employees that the Employee Association is not affiliated with Respondent, although its
title includes Respondent’s name, and it lawfully instructs employees to conduct association
business during appropriate nonwork periods. Employees were, again lawfully, requested to
sign the response to signify they had read it. There is no credible evidence as to what
Mr. Krause said when presenting the response for employee signature. Accordingly, I find no
evidence that Mr. Krause violated the Act, and I shall dismiss the allegations of Paragraph 15 of
the complaint.

The General Counsel alleged at Paragraph 16 (included by amendment at the hearing)
that Mr. Cramer violated Section 8(a)(1) of the Act by creating the impression of surveillance of
and threatening employees because of their union activities. The allegations are based on
testimony of Mr. Lozano to the effect that Mr. Cramer said employees would be fired if they did
not stop talking to the Union, which testimony I have specifically discredited. Accordingly, I find
no evidence that Mr. Cramer violated the Act, and I shall dismiss the allegations of Paragraph
16 of the complaint.

B. The Termination of Mr. Cornejo

The question of whether Respondent violated the Act in terminating Mr. Cornejo rests on
its motivation. The Board established an analytical framework for deciding cases turning on
employer motivation in Wright Line.27 To prove that an employee was discharged in violation of
Section 8(a)(3), the General Counsel must first persuade, by a preponderance of the evidence,
that an employee's protected conduct was a motivating factor in the employer's decision. If the
General Counsel is able to make such a showing, the burden of persuasion 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. The burden shifts only if the General
Counsel establishes that protected conduct was a "substantial or motivating factor in the
employer's decision." Budrovich Contracting Co., 331 NLRB 1333, 1333 (2000). Put another
way, "the General Counsel must establish that the employees' protected conduct was, in fact, a
motivating factor in the [employer's] decision." Webco Industries, 334 NLRB 608, fn. 3 (2001).

The elements of discriminatory motivation are union activity, employer knowledge, and
employer animus. Farmer Bros. Co., 303 NLRB 638, 649 (1991). Here, the first two elements
are met. In July, Mr. Cornejo obtained permission from his supervisor to leave work early to
attend a union meeting; hence, Mr. Cornejo was engaged in union activity, and Respondent
knew of it. As to the third element, there is no significant, direct evidence that Respondent bore
27 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
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animosity toward Mr. Cornejo or any other employee for his union involvement or support.
However, such direct evidence is not essential. In determining whether the General Counsel
has met his initial burden of proving that an employee's protected activity was a motivating
factor in an employer's decision to discharge the employee, the Board has held that "a
discriminatory motive may be inferred from circumstantial evidence and the record as a whole,
and that direct evidence of union animus is not required." Tubular Corporation of America, 337
NLRB No. 13, at slip op. 1 (2001) citations omitted.

There is no circumstantial evidence from which I can infer a discriminatory motive in
Respondent’s discharge of Mr. Cornejo. Respondent had a practice of laying off employees as
business exigencies dictated. Evidence was adduced that in July, Mr. Vaccaro informed
Mr. Swanson that work was slowing on the USC site and he was looking to lay off employees.
There is no evidence that Mr. Cornejo’s lay off was otherwise motivated. Considering all the
evidence, I cannot find that Mr. Cornejo’s protected activity was a motivating factor in
Respondent's decision to lay him off. Accordingly, I find the General Counsel failed to meet his
Wright Line burden, and I shall dismiss the allegations of the complaint relating to Mr. Cornejo.

C. Disciplinary Notices to Mr. Gonzales, Mr. Koenig, and Mr. McCloyn,
and Terminations of Mr. Gonzales, Mr. Koenig, Mr. McCloyn,
Mr. Lozano, and Mr. Palazzola

It is essentially undisputed that Respondent’s stated reason for issuing disciplinary
notices to Mr. Gonzales, Mr. Koenig, and Mr. McCloyn and for the later terminations of
Mr. Gonzales, Mr. Koenig, Mr. McCloyn, Mr. Lozano, and Mr. Palazzola was their leaving work
early on August 2.28 It is also clear company management was generally aware of its
employees' union activities and specifically aware the above employees left work early to attend
a union meeting.

Under the Wright Line test described above, the General Counsel bears an initial burden
of demonstrating that protected concerted activity was a motivating factor in Respondent’s
actions herein. There is no question that attending a union meeting is protected activity under
the Act. If that were the disciplined employees’ sole conduct herein, it would be a foregone
conclusion that Respondent’s disciplinary notices and terminations for the activity were unlawful.
But attendance at a union meeting was not the employees’ sole conduct. The five employees
also left work early. In doing so, they were not engaging in a strike, withholding of work, or
other permissible form of protest to demonstrate their disagreement with working conditions.29
They simply ceased work early to facilitate attendance at a union meeting. Leaving work early
is not protected activity even when the object of leaving is to engage in protected activity. See
House of Raeford Farms, Inc., 325 NLRB 463, at fn 2 (1998) where the Board found “insufficient
evidence to support a finding that the employees were acting to protest mandatory overtime or
any other term or condition of employment [when they left work early];” Specialized Distribution
Management, Inc., 318 NLRB 158 (1995) where employees left their building without permission
28 Respondent presented evidence that Mr. Koenig and Mr. Palazzolo were coincidentally
slated for work-force-reduction layoff on August 2 prior to their leaving early. Both were rated
ineligible for rehire because they left work early. Because the evidence concerning their layoff
pursuant to a reduction in work force is confused and because they were denied reemployment
rights, I have considered that they, too, were terminated for leaving early.
29 I am mindful that employees need not present a grievance or demand to an employer for
a concerted work cessation to be protected. Accel, Inc., 339 NLRB No. 134, fn. 3 (2003).
However, there is no evidence and no contention here that employees left work as a protest.
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to attend a union meeting while on the clock; Bird Engineering, 270 NLRB 1415 (1984) where
the Board found employees’ concerted violation of a rule prohibiting them from leaving the
employer’s facility during their work shifts to be unprotected; Scioto Coca-Cola Botting Co., 251
NLRB 766 (1980) where the Board said, “There must be some evidence on the record from
whatever source that the activity engaged in was not only concerted but, more significantly, that
it was…protected by Section 7 of the Act”; and Crown Coach Corporation, 155 NLRB 625
(1965) where employees left work to attend a union “demonstration meeting.”

Although the employees’ absenting themselves from work in the above circumstances
was unprotected, Respondent’s termination of them is defensible only if leaving work was the
reason for the terminations. If Respondent’s actual motivation was animosity toward
employees’ attendance at a union meeting, Respondent violated the Act when it disciplined and
terminated the employees. After considering all the evidence and applying the shifting burden
process mandated by Wright Line, I conclude that Respondent terminated its employees for
leaving work early on August 2 without regard to their attendance at a union meeting. Or to put
it another way, I conclude that Respondent would have terminated the five employees for
leaving work early even if the employees had absented themselves to engage in wholly
unprotected activity such as attending a sports event.

In reaching the above conclusion, I have reviewed several factors. I have considered
that although Respondent knew of its employees’ union activity, indeed had known of it for
many weeks, there is no credible evidence of overt animosity by Respondent toward the activity.
There is also no circumstantial evidence from which I can infer a discriminatory motive in
Respondent’s discharge of those employees who left early.30 The five terminated employees
left work on August 2 without following Respondent’s customary procedure for approved
absences, and none had permission to do so. Although, Mr. Palazzolo notified Ms. McFarland
on August 1 and the other four notified their foremen on August 2 of their intended absences,
they did not obtain clearance from one of Respondent’s managers, and Respondent evidenced
its disapproval by requiring Mr. McCloyn, Mr. Gonzales, and Mr. Koenig to sign performance
warnings prior to their leaving early. As to Mr. Palazzolo and Mr. Lozano, it is unclear if acting
foreman Mr. Hooper communicated their intention of leaving early to management.
Mr. Palazzolo told Mr. Hooper he had already notified the office, but he did not say and there is
no evidence he had permission to leave. Although Mr. Hooper said he would communicate
Mr. Lozano’s intention to leave early to the office, he never got back to Mr. Lozano.
Accordingly, none of the five employees could reasonably have believed he had valid
permission to leave the job early. I have further considered that the only evidence regarding
Respondent’s pre-August 2 attitude toward absenteeism shows Respondent to have enforced
its attendance policies strictly. Thus, Respondent gave Mr. Gonzalez a warning for his July 30
absence even though he left a message on the office answering machine before the beginning
of his shift and gave an arguably reasonable excuse of lack of transportation. There is,
therefore, no evidence that Respondent tolerated unauthorized absences. Moreover, there is
no evidence Respondent had ever been faced with a situation where numerous employees
discontinued work at the same time, and it is reasonable to expect Respondent to view the
unanticipated and unexcused absence of a large number of its employees with even greater
30 Counsel for the General Counsel argues that Respondent presented shifting defenses,
which evidence discriminatory motive. Although Respondent’s response to its employees’
absences was neither prompt nor entirely direct, I cannot find union animus as its basis.
Respondent was presented with unprecedented group employee conduct of leaving work early.
In these circumstances, Respondent’s handling of the situation was not so unreasonable as to
show discriminatory motive.
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reprehension than isolated absences. Accordingly, I conclude Respondent would have
disciplined and terminated employees for leaving work early on August 2 irrespective of their
reasons for doing so and, thus, did not violate Section 8(a)(3) and (1) of the Act by issuing
disciplinary notices to Mr. Gonzales, Mr. Koenig, and Mr. McCloyn and thereafter terminating
Mr. Gonzales, Mr. Koenig, Mr. McCloyn, Mr. Lozano, and Mr. Palazzola. Accordingly, I shall
dismiss these allegations.

D. The Refusal to Hire Mr. Clark

In refusal to hire cases, the General Counsel bears the burden under Wright Line31 and
FES32 of showing that Respondent was hiring at the time Mr. Clark applied for employment, that
Mr. Clark had experience and training relevant to the requirements of the position for hire, and
that antiunion animus contributed to Respondent’s decision not to hire him. Caruso Electric
Corporation, 332 NLRB 519, fn. 2 (2000). The General Counsel has met its burden as to the
first two elements but not as to the third. The sum of the credible evidence is that Mr. Clark, an
overt union applicant, sought employment with Respondent on August 27, but Respondent
never employed him. No evidence shows Respondent’s failure to hire Mr. Clark was motivated
by anti-union considerations. Although Mr. Clark appears to have tested better than some
employees, a test score is only one of several factors Respondent considers in hiring
employees. There is no evidence as to Mr. Clark’s ranking in other factors, and Ms. Losch’s
interview questions and comments do not reveal antiunion animus. Rather, they suggest an
entirely lawful concern that a prospective employee might not be interested in or committed to
permanent employment. There is no evidence that Respondent’s decision not to hire Mr. Clark
was not "based on neutral hiring policies, uniformly applied [citation omitted]." Ken Maddox
Heating and Air Conditioning, Inc., 340 NLRB No. 7 at slip op. 3 (2003). Counsel for the
General Counsel argues Respondent failed to present any “viable business justification” for
failing to hire Mr. Clark. However, Respondent does not have any burden to do so unless the
General Counsel first meets its burden. Since I have concluded the General Counsel has not
met its initial burden, I shall dismiss this allegation.

E. The Termination of Mr. Tomas

There is no allegation that Respondent’s clothing policy memo, distributed to employees
on August 8, was propounded or implemented in violation of the Act. There is also no clear
evidence that Respondent disparately applied the policy to employees who wore clothing with
union-related logos and superscriptions. Prior to dissemination of the clothing policy memo,
employees wore tee shirts with various logos and superscriptions apparently at will. After
publication of the clothing policy memo the question of whether employees wore clothing with
“graphics or printed text other than Quantum Electric, Inc.” is disputed. Mr. Tomas, who was
hired after issuance of the clothing policy memo and who signed it upon employment, said he
observed other employees wearing logo-bearing or superscribed tee shirts at both the Cal Med
and Long Beach sites where he worked. Ms. Losch and Mr. Cramer contended employees
were not permitted to wear prohibited clothing. Both accounts may, of course, be valid.
Mr. Tomar’s observations may be accurate, but Respondent may have taken steps to require
offending employees to comply with its clothing policy regardless of the logo or inscription
content. No evidence was adduced that on occasions when employees wore non-regulation
31 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
32 331 NLRB 9 (2000), aff’d 301 F.3d 83 (3rd Cir. 2002).
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clothing, any supervisor observed it. No evidence was adduced that noncompliant employees
were not warned of the consequences. No evidence was adduced of repeat offenders, which
could suggest Respondent was not uniformly applying the policy. The General Counsel does
not contend, and I do not find, any disparate enforcement of Respondent’s clothing policy.

Notwithstanding Respondent’s lack of union animus in applying its clothing policy,
employees have a right under Section 7 of the Act to wear and display union insignia while at
work. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-803 (1945). Absent "special
circumstances," the promulgation or enforcement of a rule prohibiting the wearing of such
insignia violates Section 8(a)(1) of the Act. The special circumstances exception is narrow
and “a rule that curtails an employee’s right to wear union insignia at work is presumptively
invalid.” E&L Transport Co., 331 NLRB 640, fn. 3 (2000). Respondent has not elucidated any
special circumstances to justify the prohibition of employees’ wearing union tee shirts. There
is nothing to suggest the clothing policy is necessary to maintain production or discipline or to
ensure safety. See Ibid. The only possible special circumstance that might arguably apply is
where display of union insignia may "unreasonably interfere with a public image which the
employer has established as part of its business plan.” United Parcel Service, 312 NLRB 596,
597 (1993). Respondent has not, however, presented evidence of that circumstance, and it
cannot be inferred from the record, particularly where Respondent’s employees do not
normally interact with the public. Accordingly, Respondent violated Section 8(a)(1) of the Act
when its supervisors directed Mr. Tomas to reverse his union-superscribed tee shirt on
penalty of discipline.
Respondent gave Mr. Tomas two opportunities to avoid discharge by reversing his
union-superscribed tee shirt. He declined both and thus defied direct instructions from his
supervisors. However, an employer may not discharge an employee for refusing to comply with
an unlawful order prohibiting protected activity. Kolkka Tables and Finnish-American Saunas,
335 NLRB No. 69, slip op. 9 (2001); Simplex Wire & Cable Co., 313 NLRB 1311, 1315 (1994).
A refusal to comply with an unlawful order does not constitute “insubordination upon which a
sustainable discharge [can] be based.” Kolkka, supra, citing AMC Air Conditioning Co., 232
NLRB 283, 284 (1977). Inasmuch as Respondent does not dispute its discharge of Mr. Tomas
for his failure to reverse his union-inscribed tee shirt, it is unnecessary to apply the Wright Line
analysis to this discharge. I find Respondent’s discharge of Mr. Tomas violated Section 8(a)(3)
of the Act.

F. Failure to Reinstate Mr. Kaspar to His Pre-Strike Position of Employment

Mr. Kaspar claimed to have engaged in an unfair labor practice strike when he ceased
working on September 12. However, I have found the incidents on which he based his strike,
i.e., interrogation of Mr. Clark, Respondent’s refusal to discuss employee wages with him, and
the terminations of Mr. Gonzales, Mr. Koenig, Mr. McCloyn, Mr. Lozano, and Mr. Palazzola, are
not unfair labor practices.33 Consequently, Mr. Kaspar cannot have been an unfair labor
33 As found above, the discharge of Mr. Tomas was an unfair labor practice. However,
Mr. Kaspar did not claim that event as a basis for his continued strike following Mr. Tomas’s
October 24 discharge, and there is no evidence he knew of it prior to his November 19 offer to
return to work.
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practice striker. He was, during the entirety of his strike, an economic striker, and Respondent
lawfully informed him on September 12 that it intended to replace him within three working
days.34

Permanently replaced economic strikers who make unconditional offers to return to
work, as Mr. Kaspar did on November 19, have the right to full reinstatement when positions
become available and the right to be placed on a preferential hiring list until that time. “[W]ell-
settled precedent dictates that an employer will be held to violate Section 8(a)(3) and (1) of the
Act if it fails to immediately reinstate striking workers on their unconditional offer to return to
work, unless the employer can establish a ‘legitimate and substantial business justification’ for
its failure to do so. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967).” Capehorn
Industry, Inc., 336 NLRB No. 29, slip op. 2 (2001). Permanent replacement of economic
strikers is such a justification, id. at 379. An economic striker who is permanently replaced thus
loses his right to immediate reinstatement. NLRB v. International Van Lines, 409 U.S. 48, 50
(1972). Any discrimination in putting strikers back to work is, of course, a violation of the Act.
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 346-347 (1938). The employer bears
the burden of proving the permanent status of hired replacements. Capehorn Industry, Inc.,
supra at slip op. 3. The question is whether Respondent permanently replaced Mr. Kaspar so
as to justify its failure to reinstate him upon his November 19 unconditional offer to return to
work.

In assessing whether Respondent has met its burden of proving it permanently replaced
Mr. Kaspar, I have considered several circumstances: (1) The Region held the case in
abeyance for nearly six years; some business records were not available and Ms. Losch’s recall
of employee hiring and placement had understandably faded. (2) I found Ms. Losch fully
credible; I saw no evidence of either attempt or desire to conceal information. (3) Mr. Swanson
and Ms. Losch, non-attorneys, appeared as president and secretary-treasurer of Respondent
pro se and are clearly unsophisticated in the legal niceties of permanent replacement proof.
(4) The question of permanent replacement arises in the context of the construction industry,
the employment practices of which markedly differ from those in the manufacturing or
production industry. In light of those factors, I have examined what little evidence exists
regarding Respondent’s replacement of Mr. Kaspar.

By letter dated September 12, when legal counsel apparently still represented
Respondent, Ms. Losch informed Mr. Kaspar that he would be replaced if he did not report to
work within three working days. Mr. Kaspar did not report to work. Respondent thereafter hired
Donald Low and Stewart Gonzales on September 16 and 25, respectively, at $14.00 and $15.50
per hour, wages similar to Mr. Kaspar’s rate of $15.00. When Mr. Kaspar followed up on his
November 19 unconditional offer to return to work, he was informed that he had been replaced
and no job was any longer available for him.35 The wage rates of Respondent’s only two hires
following November 19 ($7.00 and $20.00) indicate that neither was hired for the position
Mr. Kaspar had filled.

The evidence as a whole persuades me that Respondent permanently replaced
Mr. Kaspar and that no opening in his position thereafter arose. Although Ms. Losch was
unable to identify any employee who filled Mr. Kaspar’s position as a journeyman electrician,
34 Although Respondent did not explain Mr. Kaspar’s reinstatement rights, it was not
required to do so. See Eagle Comtronics, 263 NLRB 515, 515-516 (1982).
35 Ms. Losch’s belief that Mr. Kaspar had earlier quit has no bearing on whether he had
been permanently replaced.
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she testified that someone from a shifting pool of electricians filled it. Respondent’s hiring
records show fourteen employees were hired at wage rates suggestive of journeyman
electrician status during the period of Mr. Kaspar’s strike. While no evidence was adduced that
any of those journeymen were specifically told they were permanent employees, the record is
clear that Respondent hired all electricians to remain on the job until employee conduct,
workflow, or job completion dictated otherwise. In the construction industry, such is about as
permanent as nonsupervisory employment gets.36 Respondent experienced a significant
decline in hiring after October. Respondent hired four employees in November but only two at a
rate even approaching journeyman wages and thereafter hired two employees in December and
March, respectively, neither of which was an apparent journeyman. It is reasonable to infer
from these facts, and there is no evidence to gainsay, that Respondent hired a permanent
replacement for Mr. Kaspar’s position after he struck and that Mr. Kaspar’s job was unavailable
on or after the date he unconditionally offered to return to work. Accordingly, I find Respondent
was justified in declining to reinstate Mr. Kaspar on and after his November 19 unconditional
offer to return to work, and I shall dismiss the allegations relating to Respondent’s failure to
reinstate Mr. Kaspar.

Conclusions of Law

1. Respondent violated Section 8(a)(1) of the Act on October 24, 1996 by requiring Damir
Tomas to reverse a tee shirt showing support for International Brotherhood of Electrical
Workers, Local Union 441, International Brotherhood of Electrical Workers.
2. Respondent violated Sections 8(a)(3) and (1) of the Act by terminating Damir Tomas on
October 24, 1996 for refusing to comply with an unlawful order prohibiting protected activity.
3. Respondent did not otherwise violate 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 unlawfully terminated Damir Tomas, it must make him whole for any
loss of earnings and other benefits, computed on a quarterly basis from date of termination to
the date he would have been lawfully laid off at the conclusion of work at the Long Beach and/or
Cal Med sites,37 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).
36 As Senator Humphrey, reporting from the Committee on Labor and Public Welfare (S.
Rep. No. 1509, 82nd Cong. 2d Sess. (1952) pointed out, the building and construction industry
is characterized by casual, intermittent, and often seasonal employer/employee relationships on
separate projects. The Board also recognized that the construction industry is one “where
workers change employers from day to day or week to week.” James Luterbach Construction
Co., Inc., 315 NLRB 976, 983 (1994).
37 I leave to compliance the question of whether Mr. Tomas would have been transferred to
any other jobsite upon the conclusion of the Long Beach and/or Cal Med work and thus entitled
to a longer period of backpay. I have not ordered Respondent to offer reinstatement to
Mr. Tomas as the length of time that has transpired between the commission of the unfair labor
practice and the trial of this matter make a reinstatement order impracticable and inequitable in
a construction industry setting.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended38

ORDER

Respondent, Quantum Electric, Inc., Los Alamitos, California, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Prohibiting employees from wearing clothing showing support for International
Brotherhood of Electrical Workers, Local Union 441, International Brotherhood of
Electrical Workers or any other labor organization.
(b) Terminating any employee for refusing to comply with an unlawful order prohibiting
protected activity such as wearing clothing showing support for International
Brotherhood of Electrical Workers, Local Union 441, International Brotherhood of
Electrical Workers or any other labor organization.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Make Damir Tomas whole for any loss of earnings and other benefits suffered as a
result of his unlawful termination in the manner set forth in the remedy section of the
decision.
(b) Expunge from its files any reference to Damir Tomas’s unlawful termination and
thereafter notify him in writing that this has been done and that the termination will
not be used against him in any way.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of back pay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its facility in Los Alamitos,
California copies of the attached notice marked “Appendix.”39 Copies of the notice,
on forms provided by the Regional Director for Region 21 after being signed by the
Respondent's authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive 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
38 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
39 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since October 24, 1996.
(e) 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.

Dated, at San Francisco, CA: December 8, 2003

Lana H. Parke
Administrative Law Judge
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APPENDIX
NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT prohibit employees from wearing clothing showing their support for International
Brotherhood of Electrical Workers, Local Union 441, International Brotherhood of Electrical Workers or
any other labor organization.
WE WILL NOT Terminate any employee for refusing to comply with an unlawful order prohibiting
protected activity such as wearing clothing showing support for International Brotherhood of Electrical
Workers, Local Union 441, International Brotherhood of Electrical Workers or any other labor
organization.
WE WILL NOT in any like or similar manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL make Damir Tomas whole for any loss of earnings and other benefits resulting from his
termination.
WE WILL remove from our files any reference to the termination of Damir Tomas and WE WILL notify
him in writing that this has been done and that the termination will not be used against him in any way.

Quantum Electric, Inc.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor, Los Angeles, CA 90017-5449
(213) 894-5229, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (213) 894-5229.