Rogers Electric, Inc.

National Labor Relations Board - Board Decisions

Feb 24, 2006

346 N.L.R.B. 508 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 53
508
Rogers Electric, Inc. and International Brotherhood
of Electrical Workers, Local Union No. 5, AFL–
CIO, CLC. Case 6–CA–33880
February 24, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 21, 2005, Administrative Law Judge John
T. Clark issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied.2
Overview
We unanimously agree with the judge, for the reasons
set forth in his decision, that the Respondent violated
Section 8(a)(1) of the Act by threatening employees with
job loss and discharge, and by laying off employees Eric
Bailey, Sam Eddinger, Rodney Ellinger, Jacob
Hunsinger, Roy Melius, and Brian Smith because of their
protected concerted activities.3 Members Liebman and
Schaumber further agree, for the reasons set forth below,
that the Respondent violated Section 8(a)(1) by creating
an impression that its employees’ protected activities
were under surveillance. However, as explained below,
Chairman Battista and Member Schaumber disagree with
the judge’s findings that the Respondent violated Section

1 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.
2 We shall modify the judge’s recommended Order to conform to
the violations found. We shall also substitute a new notice in confor-
mity with the Order as modified.
3 We agree with the judge that the Respondent’s contention that
Smith was laid off because he submitted a request for a voluntary layoff
was pretextual. The Respondent’s president, Bradley J. Rogers, admit-
ted that at least one other employee, Greg Buck, had requested a volun-
tary layoff during the same time period but was not laid off at that time.
Yet the Respondent laid off Smith. As the judge found, the Respondent
has not offered any credible explanation for this disparate treatment.
Accordingly, we agree with the judge that the Respondent violated Sec.
8(a)(1) by laying off Smith.
In finding that the layoffs violated the Act, Member Schaumber does
not rely on the judge’s characterization of the Board’s position in Rey-
nolds Electric, Inc., 342 NLRB 156 (2004)..
8(a)(1) by disparaging its employees’ concerted com-
plaints and by indicating that those complaints were fu-
tile.
The Alleged 8(a)(1) Statements
Factual Background
The Respondent provides electrical contracting ser-
vices in the construction industry in Pennsylvania. The
Respondent’s president is Bradley J. Rogers. The Re-
spondent bids only on electrical contract work that is
subject to the Pennsylvania Prevailing Wage Act (PWA).
The Pennsylvania Department of Labor & Industry
(L&I) is charged with enforcing compliance with the
PWA.
In 2003,4 the Respondent performed electrical work at
Lewistown Elementary School. Mike Dilworth was the
supervisor on the project. The Respondent’s employees
on the jobsite were concerned that the Respondent was
withholding their fringe benefits and not depositing the
withholdings in the employees’ retirement accounts. The
employees discussed this concern among themselves and
with Dilworth. In late September or early October,
Rogers held a meeting with employees at the jobsite.
During the meeting, employee Brian Smith complained
to Rogers that the Respondent was handling the employ-
ees’ fringe benefits unfairly. Rogers replied that he had
the right to withhold the money and not deposit it, be-
cause of shoddy workmanship at other jobsites.
Following the meeting, Smith spoke with Dilworth,
who agreed that Rogers was wrong about the fringe
benefit issue. Dilworth suggested that Smith call L&I,
and proceeded to read L&I’s phone number to Smith
from a notice hanging in the jobsite trailer. Smith called
and informed an L&I investigator of the employees’
fringe benefit concerns and requested several complaint
forms. Smith received the forms and gave them to em-
ployees and to Dilworth. The employees completed the
forms and returned them to L&I. A meeting was ar-
ranged between employees and L&I for November 6.
On October 27, L&I officials informed Rogers that at
least one employee at the Lewistown project had filed a
complaint concerning the Respondent’s handling of the
employees’ fringe benefits. L&I further informed
Rogers that, as a result of the complaint, the Lewistown
project was being investigated.
On November 5, Rogers met with all the Lewistown
project employees. Rogers stated that he knew that a
Lewistown employee had called L&I from the Respon-
dent’s trailer on company time. He held up a phone bill
with highlighted phone numbers and said that there were
phone numbers for L&I on the bill. Rogers further stated

4 All dates hereafter refer to 2003.
ROGERS ELECTRIC, INC. 509
that there was a right way and a wrong way to bring
things up and that “going to L&I was the wrong way to
do it.” Rogers told employees that the complaints were a
“thorn in my side,” that “we got to do everything we can
to compete in this market,” and that “these complaints
don’t help us.” Rogers stated that the employees who are
“discontent with the way we do business, can just exit,”
that he only had to answer to God, and that because of
the complaints “we could see less work, and layoffs due
to specific situations like this.”
Analysis
I. IMPRESSION OF SURVEILLANCE
We agree with the judge that the Respondent created
an unlawful impression of surveillance when Rogers held
up the highlighted telephone list and told employees that
he knew calls to L&I had been made from the jobsite.5
The Board’s test for determining whether an employer
has created an impression of surveillance is whether the
employees would reasonably conclude from the state-
ment in question that their protected activities were being
monitored. Mountaineer Steel, Inc., 326 NLRB 787
(1998), enfd. mem. 8 Fed. Appx. 180 (4th Cir. 2001).
Applying the test here, we agree with the judge that the
employees would reasonably assume that their protected
concerted activities were under surveillance. In the pres-
ence of employees, Rogers threw the phone list on the
desk and then held it aloft to ensure that the employees
could see the highlighted calls. He then told the assem-
bled employees that he knew that calls to L&I had been
made from the jobsite trailer. Rogers testified at the hear-
ing that he intended his actions to serve as a “visual,” “so
that everybody knew that I had something here.”
Our dissenting colleague contends that given the open
nature of the employees’ protected activity the Respon-
dent’s remarks did not create an impression of surveil-
lance. While the openness of protected activity may be a
relevant fact, “[t]he Board does not require employees to
attempt to keep their activities secret before an employer
can be found to have created an unlawful impression of
surveillance. . . . Further, the Board does not require that
an employer’s words on their face reveal that the em-
ployer acquired knowledge of the employee’s activities
by unlawful means.”6 Moreover, the Board has found
that an employer creates an impression of surveillance
when it monitors employees’ concerted protected activity
in a manner that is “out of the ordinary,” even if the ac-
tivity is conducted openly. See, e.g., Loudon Steel, Inc.,

5 Members Liebman and Schaumber comprise the majority on this
issue, while Chairman Battista dissents.
6 Tres Estrellas de Oro, 329 NLRB 50, 51 (1999), citing United
Charter Service, 306 NLRB 150, 151 (1992).
340 NLRB 307, 313 (2003). Here, Rogers communicated
to employees in a dramatic and confrontational manner
that he had monitored their phone calls to L&I and he did
so in the course of a meeting in which he made unlawful
threats. His conduct was clearly out of the ordinary and
created a reasonable perception that employees’ pro-
tected activities were under surveillance.7 Accordingly,
we find no merit in our dissenting colleague’s position.
II. DISPARAGEMENT AND FUTILITY
The judge found that Rogers’ statements that “going to
L&I” was the “wrong way to make changes” violated
Section 8(a)(1) because it disparaged the employees’
protected concerted activities and indicated to them that
such activity was futile. We disagree, and find that
Rogers was merely expressing his opinion concerning
the employees’ action of contacting L&I.8
Section 8(c) provides that “[t]he expressing of any
views, argument, or opinion . . . shall not constitute or
be evidence of an unfair labor practice . . . , if such ex-
pression contains no threat of reprisal or force or promise
of benefit.” “Intemperate” remarks that are merely ex-
pressions of personal opinion are protected by the free
speech provisions of Section 8(c). Sears, Roebuck & Co.,
305 NLRB 193 (1991). Further, disparaging remarks
alone are insufficient to constitute a violation of Section
8(a)(1). Trailmobile Trailer, LLC, 343 NLRB 95 (2004);
Sears, Roebuck & Co., supra. Disparaging remarks “that
[do] not suggest that the employees’ protected activities
were futile, [do] not reasonably convey any explicit or
implicit threats, and [do] not constitute harassment that
would reasonably tend to interfere with employees’ Sec-
tion 7 rights” do not violate Section 8(a)(1). Trailmobile
Trailer, LLC, supra.
We find that Rogers’ remarks did not rise to the level
of unlawful conduct. Rogers’ comments amounted to
nothing more than his personal statement that formally
contacting State government officials was not the best
way to get matters changed. Such a statement is no dif-
ferent in kind from one in which an employer tells em-

7 Compare Northeast Iowa Telephone Co., 346 NLRB No. 47
(2006), where the Board found that an employer that routinely re-
viewed employee usage of company-provided cell phones nonetheless
created an unlawful impression of surveillance when a manager took
the unusual step of confronting an employee about calls placed to the
union even though the employee had not exceeded the designated
monthly cap on call minutes. In assessing whether conduct is “out of
the ordinary,” the Board looks to the employer at issue, not to employ-
ers’ practices generally. In this case, there was no evidence the Re-
spondent ever monitored nonbusiness calls placed from jobsites, ap-
prised employees of such a practice, or brought such calls to the atten-
tion of employees, much less in the dramatic and confrontational fash-
ion engaged in by the Respondent’s owner and president here.
8 Chairman Battista and Member Schaumber comprise the majority
on this issue, while Member Liebman dissents.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD510
ployees there is no need to call a union in to resolve is-
sues. The statement amounts only to a personal opinion,
protected by Section 8(c), that the employees do not need
a union.9
Similarly, in this case, Rogers’ statement expressed
only his view that the employees did not need to go to
L&I to resolve their complaints. The comment did not
disparage the employees or imply that their activity was
futile; it simply offered an opinion that this activity was
not prudent.
In the same fashion, Rogers’ comment that he only an-
swered to God cannot be viewed as anything other than
hyperbole or a colloquialism. Rogers did not tell em-
ployees that he would refuse to comply with a lawful
order issued by L&I. Accordingly, we find that the state-
ment did not violate Section 8(a)(1).10

9 See, e.g., Howard Johnson Co., 242 NLRB 386 (1979) (telling
employees that the company was convinced they did not need a union
because it would “only make things more difficult for all of us” not
violative, since it “merely sets forth [the employer’s] views on the
disadvantages of unionism and does not impart a threatening mean-
ing”).
10 That Rogers made some unlawful comments in the same meeting
with employees does not render the statements under consideration
unlawful. We reject our colleague’s effort to string together various
kinds of statements, some lawful and some unlawful, in order to find
that Rogers’ statements of personal opinion were unlawful. See Arm-
strong Machine Co., 343 NLRB 1149, 1153 (2004). Employer state-
ments do not lose the protection of Sec. 8(c) simply because other
employer statements are unlawful.
Contrary to the majority, Member Liebman agrees with the judge
that the two remarks at issue violated Sec. 8(a)(1) in light of their over-
all context of unlawful coercion and threat of reprisal.
The Board considers the totality of the relevant circumstances in
evaluating whether a statement violates the Act or rather is protected by
Sec. 8(c). Mediplex of Danbury, 314 NLRB 470, 471 (1994). In a sin-
gle address to his employees, the Respondent’s president, Rogers
threatened them with the loss of business, the loss of jobs, and dis-
charge because of their protected appeal to L&I, and created the im-
pression of surveillance of their protected activity as well. The Board
agrees that these statements violated Sec. 8(a)(1). Given the unlawful
context that Rogers created, telling the employees in addition that their
appeal was the “wrong way to make changes,” and that he “has to only
answer to God” and not L&I, constituted more than simply “intemper-
ate,” “disparaging,” “hyperbolic,” or “colloquial” remarks. They com-
municated both a coercive sense of futility in the exercise of protected
rights and an implicit threat of reprisal for doing so, consistent with the
overall message in Rogers’ other unlawful statements. See, e.g., Ebene-
zer Rail Car Services, 333 NLRB 167 fn. 2 (2001); Venture Industries,
330 NLRB 1133 (2000); Mediplex of Danbury, supra. Contrary to the
majority’s assertion, the surrounding statements are not merely a string
of unrelated remarks, but rather statements that carry the same unlawful
theme: unionization will result in punishment of the employees, or will
at best be an act of futility.
In the cases the majority relies on, an unlawful context is notably ab-
sent from the employer statements at issue. See Trailmobile Trailer,
LLC, 343 NLRB 95 fn. 4; Sears, Roebuck & Co., 305 NLRB 193
(1991); and Howard Johnson Co., 242 NLRB 386 (1979). They are
distinguishable from the present case on that basis. In Armstrong Ma-
chine Co., supra, the Board found that the respondent’s president law-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Rogers
Electric, Inc., Orbisonia, Pennsylvania, 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) Threatening employees that their concerted com-
plaints would lead to loss of employment, threatening
employees by informing them that anyone who is not
content with the manner in which business is run should
leave, and creating the impression that the employees’
concerted activities are under surveillance.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
CHAIRMAN BATTISTA, dissenting in part.
I agree with my colleagues in all but one respect. Con-
trary to the majority, I cannot conclude, in the circum-
stances here, that the Respondent unlawfully created an
impression of surveillance.
The facts are undisputed. An employee from the Re-
spondent’s Lewistown project made a call to L&I. The
call was made on a company phone in the company
trailer. Later, during a long talk with employees, the
Respondent’s president, Bradley J. Rogers, held up a
highlighted telephone bill and told employees that he
knew a call had been made from a company phone to
L&I.
I do not find that this act by the Respondent would rea-
sonably lead employees to believe that their activities
were under surveillance. The phone call was made at the
Employer’s worksite and on a company phone. The Re-
spondent lawfully monitored the phone bill, and merely
reported the objective fact that the phone bill showed this
activity. In my view, employees who use a company
phone can reasonably expect that their call would show
up on the Employer’s phone bill. Thus, employees
would reasonably know that their activity, i.e., the phone
call, was not discovered through some act of surrepti-
tious spying, but rather because of the overt nature of
their own activity. Accordingly, there was no impression
of unlawful surveillance. See, e.g., Michigan Road
Maintenance Co., 344 NLRB 617 fn. 4 (2005).1 I would
dismiss the allegation.

fully told employees he believed they were supervisors, but that the
issue would be resolved at a hearing. This benign statement did not
echo the surrounding context of unlawful coercion, see 343 NLRB at
1150–1153, and is simply not comparable to the related threats and
coercive statements Rogers made here.
1 Loudon Steel, Inc., 340 NLRB 307, 313 (2003), cited by the ma-
jority, does not warrant a different result. It is not “out of the ordinary”
ROGERS ELECTRIC, INC. 511
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT lay you off, discipline, or otherwise dis-
criminate against you for participating in concerted ac-
tivities protected by Section 7 of the Act.
WE WILL NOT threaten our employees that their con-
certed complaints will lead to loss of employment,
threaten our employees by informing them that anyone
who is not content with the manner in which the business
is run should leave, or create the impression that our em-
ployees’ concerted activities are under surveillance.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Eric Bailey, Sam Eddinger, Rodney Ellin-
ger, Jacob Hunsinger, Roy Melius, and Brian Smith full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.

for a company to review its own phone bill and, if nonbusiness related
calls are found, to bring that to the attention of the callers. My col-
leagues say that “out of the ordinary” means past practice of the par-
ticular employer. They cite nothing to support such a restrictive view.
Nor is such a restrictive view warranted in the circumstances here.
Employees are not likely to consider it extraordinary that a company
would monitor phone bills. Further, even if the Respondent’s actions
were “out of the ordinary,” they did not give employees the impression
that it was engaging in surveillance of their protected concerted activ-
ity. Where employees use company telephones to conduct their Section
7 activity, it is unreasonable for them to believe that their activity will
be secret and will be discovered only through unlawful surveillance.
Northeast Iowa Telephone Co., 346 NLRB 465 (2006), is distinguish-
able. Unlike that case, the Respondent here did not make reference to
the individual whose phone call was in question. The Respondent
merely referred to what the phone bill showed.
WE WILL make Eric Bailey, Sam Eddinger, Rodney El-
linger, Jacob Hunsinger, Roy Melius, and Brian Smith
whole for any loss of earnings and other benefits result-
ing from our unlawful action against them, less any net
interim earnings, plus interest.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs and reprimands and WE WILL within 3 days
thereafter notify each of them in writing that this has
been done and that the unlawful layoffs and reprimands
will not be used against them in any way.
ROGERS ELECTRIC, INC.
Clifford E. Spungen, Esq., for the General Counsel.
R. Stanley Mitchel, Esq. (Dinsmore & Shol, LLP), of Pitts-
burgh, Pennsylvania, for the Respondent.
Joshua M. Bloom, Esq. (Koerner, Colarusso and Bloom, PA),
of Pittsburgh, Pennsylvania, for the Union.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Burnham, Pennsylvania, on July 14 and 15, 2004. The
charge was filed January 5, 2004, and the complaint was issued
March 26, 2004. At the start of the hearing Rogers Electric,
Inc. (the Respondent), moved to amend its answer by admitting
paragraphs 1, 4, 5, and 6 of the complaint and the parties jointly
moved to amend the date contained in paragraph 8 of the com-
plaint to November 5, 2003. The motions, and a motion to
correct the spelling of discriminatee Melius’ name, were
granted. The complaint alleges that the Respondent, violated
Section 8(a)(1) of the National Labor Relations Act (the Act)
by disparaging employees’ concerted complaints, indicating
that complaining about those complaints was futile, threatening
employees that their concerted complaints would lead to loss of
employment, threatening employees by informing them that
anyone who was not content with the manner in which Respon-
dent’s business was run should leave, creating the impression
that its employees’ concerted activities were under surveillance,
and laying off employees Eric Bailey, Sam Eddinger, Rodney
Ellinger, Jacob Hunsinger, Roy Melius, and Brian Smith.
On the entire record, including my observation of the de-
meanor of the witnesses, as well as my credibility determina-
tions based on the weight of the respective evidence, estab-
lished and admitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole and, after consid-
ering the briefs filed by the counsel for the General Counsel
and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Pennsylvania corporation, with an office
and place of business in Orbisonia, Pennsylvania, is an em-
ployer engaged in providing electrical contracting services in
the construction industry. During the 12-month period ending
December 31, 2003, the Respondent, in conducting its business
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD512
operations described above, purchased and received at its Orbi-
sonia, Pennsylvania facility products, goods, and materials
valued in excess of $50,000 directly from points located outside
the Commonwealth of Pennsylvania. The Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent only bids on electrical contracting work that
is subject to the Pennsylvania Prevailing Wage Act (PWA),
these projects are generally public schools. The Pennsylvania
Department of Labor & Industry (L&I) is charged with enforc-
ing compliance with the PWA. The Respondent has been au-
dited by L&I on previous occasions. Robert Risaliti, the sec-
ond in command of L&I’s Bureau of Labor Law Compliance,
testified that because of the complaint filed herein the chief
counsel’s office was proceeding with pursuing an “intentional”
violation of the PWA. The remedy sought is a 3-year debar-
ment, a fine, and possibly liquidated damages.
The complaint was filed with L&I while the discriminatees
were employed by the Respondent at the Lewistown Elemen-
tary School project in Lewistown, Pennsylvania, during 2003.1
Bailey, Eddinger, Ellinger, and Melius were considered the
base crew because they were assigned to the job from the be-
ginning. Mike Dilworth was the foreman. Hunsinger and
Smith were assigned to the project later in 2003. Although all
the employees were concerned about what the Respondent was
doing with the fringe benefit portion of their wages that the
Respondent withheld, the discriminatees were the most vocal.
The topic was discussed among themselves and with Dilworth.
The Respondent was started by its president, Bradley J.
Rogers in 1981. The Respondent is jointly owned by Rogers
and his wife. Although Rogers was the project manager at the
Lewistown jobsite, he was only at the jobsite on alternating
Wednesdays. During such a visit in late September, or early
October, Rogers held a meeting with the employees in the job-
site trailer. Smith, who attended the meeting along with Bailey,
Eddinger, Ellinger, Melius, Hunsinger, and possibly others, told
Rogers that it was unfair to withhold the employees’ fringe
benefit money, but not deposit it in the employees’ retirement
accounts. Smith and Eddinger testified that in response Rogers
became loud, red-faced, and said that he had a right to withhold
the money because of shoddy workmanship at other jobsites.
Rogers admitted having a similar reaction when questioned
individually about the benefit money by Ellinger. Rogers ex-
plained that he was unable to control his anger because Ellinger
attacked his authority.
Following the meeting in the trailer, Smith spoke with Dil-
worth, who agreed that Rogers was wrong about the fringe
benefit issue. Dilworth suggested that Smith call L&I and he
then read the phone numbers to Smith from a notice hanging in
the trailer. After speaking with a few people, Smith was trans-
ferred to Shirley Davis, an L&I investigator. Smith related the

1 All dates are in 2003, unless otherwise indicated.
employees’ concerns regarding the fringe benefit issue and
requested several complaint forms. Smith gave the forms to
Ellinger, Bailey, Eddinger, Melius, Hunsinger, and Dilworth.
Bailey, Eddinger, Smith, and possibly other employees, re-
turned the completed forms to L&I. Thereafter, Investigator
Davis arranged a meeting with the employees at Hoss’ Restau-
rant in Lewistown, for November 6.
On October 27, L&I officials notified Rogers that at least
one employee had filed a complaint over the Respondent’s
handling of the employees’ fringe benefit moneys, and that as a
result of the complaint, the Lewistown project was under inves-
tigation. On October 28 or 29, Rogers called employees
Hunsinger, Bailey, and Doug Buck, and questioned them about
taking extended breaks and lunch periods.
Smith told Dilworth of the L&I meeting several days before
it was to occur. Melius testified that he regularly commuted
with Dilworth and that they often talked about their concerns
regarding the fringe benefit money. Melius testified that
shortly before the L&I meeting Dilworth told him that Rogers
had called and said that he was upset that L&I had been con-
tacted. As a result of the phone call Dilworth said that he did
not want anything to do with the L&I meeting.
1. The November 5 meeting
On November 5, Rogers again met with all the Lewistown
project employees in the job trailer. Rogers admits being angry
when he conducted the meeting. After addressing the excessive
breaks and lunchtime issue, he acknowledged that he knew that
a Lewistown employee had called L&I from the trailer. For
impact he held up a phone bill with highlighted phone numbers.
Rogers also admitted that he directed his conversation “directly
at Rod Ellinger” and said that there “is a right way and a wrong
way to get things brought up.” Rogers said that he was looking
at Ellinger when he spoke of “the wrong way” because of the
previous incident, set forth above, when Ellinger asked Rogers
about the benefit money.
Eddinger testified that Rogers said that if the employees
wanted to make changes “going to L&I was the wrong way to
do it, there is a right way and a wrong way to make changes.”
Rogers told the employees that the complaints were “a thorn in
my side,” that “we got to do everything we can to compete in
this market” and “these complaints don’t help us.” Employees
who were “discontent with the way we do business, can just
exit,” that the only person he has to answer to is God, and that
because of the complaints “we could see less work, and layoffs
due to specific situations like this.”
Smith testified to the same general subject matter. He said
that Rogers told them that if “you guys want changes going to
L&I is not the way to get changes,” that there is a right way,
and there is a wrong way to make changes, that “these com-
plaints are a thorn in my side,” that “we have to do everything
to compete in this job market, and these complaints don’t help
us”; that “the complaints are hurting the company and costing
us money,” that because of the complaints “we are going to see
less work, and layoffs, due to specific situations like this”; and
Rogers directed that employees “who are discontent with the
way we run our business can just exit.”
ROGERS ELECTRIC, INC. 513
Melius also testified about the meeting. He admitted not be-
ing able to recall everything Rogers said, but he did remember
that Rogers had discovered that L&I was contacted by someone
at the Lewistown jobsite and that “it was a thorn in his side.”
He also remembers Rogers stating that “if we don’t like how
things were being run, we should leave,” and that “God is the
only person he has to answer to, and the only person he does
answer to.”
2. Events leading to the layoff
Melius, who commuted with Dilworth, testified that some-
time between the time when the L&I meeting was scheduled,
and when it occurred on November 6, Dilworth told Melius that
things had changed. Dilworth said that he had had a 3-hour
phone conversation with Rogers, who was upset that L&I had
been contacted. Dilworth told Melius that he no longer wanted
anything to do with the L&I meeting.
Early on November 6, Smith asked Dilworth if he was going
to the meeting with the L&I officials at the local Hoss’ Restau-
rant. Dilworth asked who would be in attendance. Smith
named himself, Bailey, Eddinger, Ellinger, Hunsinger, and
Melius. Dilworth responded that he would not attend but to
“let me know what takes place.”
Later that afternoon employees Smith, Bailey, Eddinger, El-
linger, and Melius met with officials of L&I at the restaurant.
Risaliti, the second in command of L&I’s Bureau of Labor Law
Compliance, testified that he attended the meeting and that the
employees acted nervous and afraid. They said that they feared
that someone might see their vehicles with the Government cars
and conclude that they had contacted L&I. The employees
explained to Risaliti that they believed that if the Respondent
learned of the meeting they would be fired. The next day Dil-
worth asked Smith, “[H]ow was the meeting,” Smith only re-
plied, “[Y]ou should have gone.”
By November 15, Chris Sodmont had replaced Dilworth as
foreman and approximately 15 additional employees were
transferred to the Lewistown jobsite.
3. The layoff
During the afternoon of November 26, Foreman Sodmont
called Hunsinger and Smith into the Lewistown job trailer and
told them they were laid off for lack of work. Shortly after-
wards Sodmont laid off Bailey, Eddinger, Ellinger, and Melius,
thus laying off all the employees who Smith had told Dilworth
were going to attend the meeting with the L&I officials. Sod-
mont told the employees that they were the first to be laid off
and would be the last to be recalled. None of the other employ-
ees working at the jobsite were laid off at this time, those re-
maining included Doug and Greg Buck, Andrew Lee, Brett
Kozian, and Doug Johnston. Subsequently, several additional
employees were assigned to the job.
Dilworth was laid off on December 26, he resigned in Janu-
ary 2004, and relocated to Colorado. His whereabouts are un-
known and attempts to subpoena him were unsuccessful.
Hunsinger was recalled to work at another project on January
19, 2004.
On January 9, 2004, 2 days after the Respondent received the
charge—and 6 weeks after their layoff—Melius and Eddinger
were issued reprimands. In April, Eddinger and Smith received
individual letters, informing them that they were permanently
laid off.
III. DISCUSSION
A. The Supervisory Status of Dilworth and Johnston
The complaint alleges that Dilworth and Johnston are super-
visors within the meaning of Section 2(11) of the Act and
agents of the Respondent within the meaning of Section 2(13)
of the Act. The Respondent denies the allegation.
The burden of proving that an individual is a supervisor
within the meaning of the Act is with the party asserting it.
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706,
711–712 (2001). The party asserting supervisory status must
establish it by a preponderance of the evidence. Bethany Medi-
cal Center, 328 NLRB 1094, 1103 (1999). Section 2(11) of the
Act defines “supervisor” as:
any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or to re-
sponsibly direct them, or to adjust their grievances, or effec-
tively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
In Mountaineer Park, Inc., 343 NLRB 1473, 1474 (2004), the
Board stated:
An individual need only possess one of these indicia of super-
visory authority as long as the exercise of such authority is
carried out in the interest of the employer, and requires the use
of independent judgment. Significantly, it is not required that
the individual have exercised any of the powers enumerated
in the statute; rather, it is the existence of the power that de-
termines whether the individual is a supervisor. [Citations
omitted.]
Based on the foregoing, I find that the counsel for the Gen-
eral Counsel has met his burden of proving that Dilworth and
Johnston, as well as the other individuals employed by the Re-
spondent in the classification of foreman, are supervisors within
the meaning of Section 2(11).
The Respondent’s employee handbook (GC Exh. 20) con-
tains a specific “Foreman’s Section” that defines the duties and
responsibilities of the foremen. It states that “[t]he position of
foreman is a supervisory one,” and the foreman is “responsible
for every aspect of your project. This includes customer rela-
tions, job makeup, quality of work, conduct of employees,
safety, paperwork, tool management and material ordering.”
Additionally, a foreman is responsible to “work every project
with as few workmen as possible.” If successful, the foreman
is awarded a bonus between $250–$500.
“Being in a supervisory position, foremen are responsible for
the conduct of the employees working under them. If an em-
ployee’s attitude or conduct is not what it should be and is
damaging to the Company’s image or to fellow workers, you
have the right to remove that employee from the job.” How-
ever “[i]f you choose not to remove an employee from a job
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD514
whose conduct is not what it should be, both the employee and
the foreman in charge will be held responsible for any problems
resulting from this employee’s poor conduct.”
Chris Mantini, a foreman for the Respondent, testified that
he is responsible for overseeing the project, delegating duties,
coordinating site work, inventory, and representing the Re-
spondent at various meetings. Eddinger credibly testified,
without contradiction, that Dilworth assigned Eddinger his
duties, it was Dilworth that Eddinger sought out when material
was needed and to resolve work problems, and it was Dilworth
who authorized Eddinger to leave work early. Mantini cor-
roborated Eddinger’s testimony that foremen assign work be-
cause they knew what needs to be done next.
Mantini testified that the foremen met annually to discuss the
retention of employees. If three foremen voted not to retain an
employee he was laid off. The minutes of the January 2004
foreman’s meeting support his testimony. Rogers also testified
that he did not rely on “his own opinion” regarding the decision
to permanently layoff Eddinger and Smith that was made at the
January 2004 meeting. He did, however, rely on the opinion of
Dilworth to permanently layoff Eddinger, and of Dilworth and
Johnston to permanently layoff Smith. Although neither of the
men attended the meeting their views had previously been so-
licited. (CP Exh. 3, 1–2.)
Based on the foregoing I find that the evidence establishes
that the Respondent’s foremen have the authority to suspend
employees from the jobsite, assign work, and direct the work
force, and effectively recommend the discharge of employees.
I also find that they exercise independent judgment when per-
forming those functions. Thus, a foreman exercises independ-
ent judgment in deciding to suspend an employee, should his
judgment be faulty, the foreman is held accountable. Inde-
pendent judgment is required to assign work in a manner neces-
sary to complete the project with as few employees as possible
and thus be awarded a bonus. The testimony also establishes
that foreman exercise independent judgment when voting to
permanently layoff or retain an employee. Mountaineer Park,
Inc., supra.
Moreover, the Respondent’s foremen possess numerous sec-
ondary indicia of supervisory authority, including the designa-
tion of the foreman position as supervisory, attendance at su-
pervisory meetings, job responsibilities, authority to grant time
off, and that, except on rare occasions, the foreman is the Re-
spondent’s highest ranking official at the jobsite. E.g., Flex-
Van Service Center, 228 NLRB 956, 959 (1977); Mays Electric
Co., 343 NLRB 121, 125 (2004).
Based on the foregoing I find that the Respondent’s foremen,
including Dilworth and Johnston, are statutory supervisors
within the meaning of Section 2(11) of the Act.
B. The Alleged 8(a)(1) Statements
The statements in issue were made by Rogers at the Novem-
ber 5 meeting in the Lewistown jobsite trailer. Rogers stated
that he was notified by L&I Investigator Davis on October 27,
that she had received a complaint from the Lewistown jobsite.
On October 27 or 29, Rogers received a telephone call from
Chris Sodmont. Sodmont testified that his title was that of
project manager and that it would be fair to say that he was one
of Rogers’ righthand men. Sodmont also testified that to the
best of his knowledge he had never been to the Lewistown
jobsite before reporting there in mid-November as the foreman.
Nonetheless, Rogers says that Sodmont “informs me that there
is excessive breaks and lunches being taken at the jobsite. He
also informs me of a Labor and Industry call being made from
the jobsite.” Rogers did not say how Sodmont obtained his
information. Sodmont never corroborated Rogers testimony
that it was he who informed Rogers about the breaks and the
phone call. It is against this backdrop that the November 5
meeting occurs, only 1 day before the employees scheduled
meeting with the L&I officials.
The complaint alleges that Rogers made statements at the
meeting that: (a) disparaged employees’ concerted complaints
concerning their wage and fringe benefit payments; (b) indi-
cated that employees’ concerted complaints were futile; (c)
threatened employees that concerted complaints would lead to
loss of employment; (d) threatened employees by informing
them that anyone who was not content with the manner in
which Respondent’s business was run should leave; and (e)
created the impression among employees that their protected
concerted activities were under surveillance.
The Respondent does not dispute the statements, but argues
that they do not contain any threat of reprisal or force, or prom-
ise of benefit, and when the statements are viewed under the
totality of the circumstances they do not reasonably tend to
coerce employees in the exercise of their statutory rights. The
Respondent also contends that the statements are within the
parameter of Section 8(c), the “free speech” section of the Act.
A reading of Section 8(a)(1) and 8(c) together permits an
employer to communicate with its employees as long as the
communication does not contain a “threat of reprisal, or force,
or a promise of benefit.” NLRB v. Gissel Packing Co., 395
U.S. 575, 617–618 (1969). It is also well settled
that the test of interference, restraint, and coercion under Sec-
tion 8(a)(1) of the Act does not depend on an employer’s mo-
tive nor on the successful effect of the coercion. Rather, the
illegality of an employer’s conduct is determined by whether
the conduct may reasonably be said to have a tendency to in-
terfere with the free exercise of employees rights under the
Act. [Footnote omitted.]
El Rancho Market, 235 NLRB 468, 471 (1978).
The General Counsel’s witnesses’ credibly testified that
Rogers coupled “going to L&I” with the “wrong way to make
changes.” Rogers testified that he was referring to a prior con-
frontation between himself and Rod Ellinger concerning the
pension money. Rogers did not testify, nor is there any evi-
dence, that his point of reference was ever explicated to the
employees at the November 5 meeting. Accordingly, I find that
an employee could reasonably conclude that Rogers’ statement
was disparaging the employees’ protected concerted activity,
specifically their attempts to effectuate change in their working
conditions by complaining to L&I.
Rogers also stated that he has to only answer to God. I find
that the employees could conclude, by inference, that the Re-
spondent would not allow itself to be held accountable by L&I
and thus that the employees’ concerted complaints were futile.
ROGERS ELECTRIC, INC. 515
I also find that telling the employees that complaining to L&I
was the wrong way to get change, also indicates to the employ-
ees the futile nature of their protected concerted activity.
Rogers told the employees that the complaints to L&I “are a
thorn in my side,” and that “the complaints are hurting the
company and costing us money.” Smith testified that Rogers
said that as a result of the complaints “we are going to see less
work, and layoffs, due to specific situations like this.” Ed-
dinger testified that Rogers said that “we could see less work.”
The Respondent contends that the loss of employment state-
ment is a statement of objective fact based on conduct beyond
Rogers’ control and protected by Section 8(c). As evidence of
this objective fact the Respondent cites L&I official Risaliti’s
testimony that a potential penalty under the PWA is debarment
from bidding on public works contracts. I disagree. I find that
under either version the statement is an unlawful threat of job
lost attributable to the employees’ protected concerted activity
of filing complaints with L&I. Obviously the “objective fact”
is clearly within the Respondent’s control, it only need comply
with the applicable laws of the Commonwealth. Nor does the
truthfulness of the threat make it any less a threat. In that re-
gard I note that the Respondent’s prognostication of layoffs was
fulfilled, not by the intervention of L&I, but solely as a result of
the Respondent’s actions.
Rogers also told the employees that those who were discon-
tented with the way the business was run “can just exit.” The
Respondent argues that although that statement would be an
implied threat of discharge in a union organizing context, be-
cause there is no current organizing campaign, the statement is
“no more than a truism that if one is unhappy where they work
they can always work somewhere else.” The Respondent’s
contention is incorrect. E.g., McDaniel Ford, Inc., 322 NLRB
956, 962 (1997).
It is well settled that an employer’s invitation to an employee
to quit in response to their exercise of protected concerted ac-
tivity is coercive, because it conveys to employees that sup-
port for their union or engaging in other concerted activities
and their continued employment are not compatible, and im-
plicitly threaten discharge of the employees involved. [Cita-
tions omitted, emphasis added.]
Based on the foregoing I find that the Respondent threatened
the employees with discharge.
Smith, Eddinger, and Melius were called by the counsel for
the General Counsel and testified about the November 5 meet-
ing. Each related that during Rogers’ angry comments regard-
ing the complaints to L&I he held up a phone bill containing
highlighted phone numbers. He told the employees that he
knew that there were phone numbers for L&I on the bill. None
of them testified that Rogers said anything further regarding the
phone bill. Douglas Johnston, and Greg Buck were employees
that also attended the meeting and were called to give testi-
mony by the Respondent. Johnston basically collaborated the
other witnesses’ testimony but added that Rogers also said that
the calls were made on company time, and that if they wanted
to do something like that, they should do it on their own time
not on his. Buck also stated that Rogers mentioned making
calls on working time. Rogers testified that when he started to
address the group he threw the highlighted phone bill on the
desk without comment. He stated that he used the bill as a
“visual,” the purpose of which was “so that everybody knew
that I had something there.” He did not mention the phone bill
until he finished his comments about the breaks. At that time
he made the “comment that I knew that a call was made to La-
bor and Industry from the jobsite.” Rogers further stated that
“what I wanted to do was, and I believe it was successful was I
wanted to let them know that I was—had documentation, that
they was not—they was making calls, on unauthorized com-
pany time.” Although Rogers testified as to his intention, his
testimony stops short of stating that he verbally articulated his
intention to the employees. However, much of Rogers testi-
mony was a rambling narrative, sometimes blurring the line
between actions taken and those that he should have taken. In
this instance I credit Johnston’s testimony as the more complete
version of the incident.
[T]he test for determining whether an employer has created an
impression of surveillance is whether the employee would
reasonably assume from the statement in question that his un-
ion activities have been placed under surveillance. Tres
Estrellas de Oro, 329 NLRB 50, 51 (1999); and United Char-
ter Service, 306 NLRB 150 (1992). While these cases in-
volved employees engaged in union activity, the Board’s
holding would be no less applicable to employees engaged in
protected concerted activity. Either way, the freedom em-
ployees have to engage in Section 7 rights should be unre-
strained by an employer’s surveillance of their activity or the
impression of surveillance.
Wilshire At Lakewood, 343 NLRB 141, 154 (2004).
Based on the foregoing facts I find the employees would rea-
sonably assume by Rogers’ words and conduct that their pro-
tected concerted activity was under surveillance. I find signifi-
cance in Rogers theatrics of throwing the phone list on the
desk, and later holding it aloft to ensure that the highlights
could be seen by all, and telling the assembled employees that
he knew that calls to L&I had been made from the jobsite. In
his own words he wanted a “visual,” “so that everybody knew
that I had something there.” I find that Rogers actions created
the impression of surveillance from which the employees
would reasonably assume that their protected concerted activity
was under surveillance. See generally Double D. Construction
Group, 339 NLRB 303, 303–304 (2003) (The test of whether a
statement is unlawful is whether the words could reasonably be
construed as coercive, whether or not that is the only reasonable
construction.). (Footnote omitted.)
Accordingly, based on the foregoing findings, I conclude
that the Respondent violated Section 8(a)(1) of the Act as al-
leged in the complaint.
C. The Alleged 8(a)(1) Layoffs
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act when it laid off employees Bailey, Eddinger,
Ellinger, Hunsinger, Melius, and Smith on November 26, 2003,
because they engaged in protected concerted activity. In order
to establish that the Respondent has retaliated against the em-
ployees for exercising their right to engage in protected con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD516
certed activity, the General Counsel must establish the follow-
ing: (1) that the employees engaged in protected concerted
activity; (2) that the Respondent knew of the concerted nature
of the activity; (3) that the concerted activity was protected by
the Act; and (4) that the adverse action taken by the Respondent
was motivated by the protected concerted activity. Triangle
Electric Co., 335 NLRB 1037, 1038 (2001), enf. denied on
other grounds 78 Fed. Appx. 469 (6th Cir. 2003).
The evidence shows, and the Respondent admits, that the
employees were engaged in protected concerted activity (R. Br.
at 12). However, before addressing the remaining three ele-
ments of the General Counsel’s case it is necessary to articulate
certain general principles on which my credibility determina-
tions are based.
1. Credibility
As usual in a trial where a fair number of witnesses testify
for each side, there are major and minor testimonial variations.
My credibility determinations are based on weighing multiple
factors. I have fully reviewed the record and carefully observed
the demeanor of the witnesses. I have considered the apparent
interest of the witnesses; inherent probabilities in light of other
events; corroboration or lack thereof; and consistencies or in-
consistencies within the testimony of each witness and between
the testimony of each and that of other witnesses with similar
apparent interests. Testimony that contradicts my factual find-
ings has been considered but discredited. See generally NLRB
v. Walton Mfg. Co., 369 U.S. 408 (1962).
Where I have found misstatements to be deliberate, rather
than simply a misunderstanding of events, or the consequences
of a faulty memory, I have provided the precise reasons for my
credibility determination. In those situations I have also found
it reasonable to believe the opposite of the witness’ testimony
and to disbelieve the witness in total. Id. I have generally
found, in addition to their demeanor, that the testimony of the
General Counsel’s witnesses were more detailed and explana-
tory, and therefore more reliable and trustworthy, than the wit-
nesses presented by the Respondent, when testifying about the
same subject matter.
2. The General Counsel’s case
Regarding the Respondent’s knowledge of the employees’
protected concerted activities, the Respondent does not deny
that Foreman Dilworth was present and partook in employee
discussions concerning the Respondent’s actions regarding
their fringe benefit earnings. Smith, Eddinger, and Melius all
credibly testified that Dilworth was present during the discus-
sions. Melius, who commuted with Dilworth, additionally
credibly testified that he recalled Dilworth “making a couple of
phone calls himself to Labor and Industry.” Although Melius
was unaware of the outcome. In addition to the witnesses’
credible demeanor it is also probable that Dilworth took part in
the discussion and at least tried to contract L&I. His money
was also not being properly deposited.
Respondent’s initial argument, which I have dealt with pre-
viously, is that Dilworth is not a Section 2(11) supervisor.
Alternatively, the Respondent argues that Dilworth’s knowl-
edge of the employees’ concerted activity is, regardless of his
status, insufficient because the Board has held that it is the
personal knowledge of the decisionmaker, here Rogers, that is
required. The Respondent relies solely on Reynolds Electric,
Inc., 342 NLRB 156 (2004), for that proposition. In Reynolds,
a panel majority found that “[a]ssuming without deciding that
the judge correctly found that [the employee] had engaged in
concerted activity, we conclude that it has not been established
that the Respondent [identified as a corporate entity] knew that
he had done so.” Ibid. Thus, in Reynolds, unlike here, there
was no evidence that any corporate officer, or supervisor, was
aware of the concerted activity, an essential element of the
General Counsel’s prima facie case. The Board has long held
that it
looks not only to whether the protected activities take place in
such a manner as to give the employer the opportunity to ob-
serve it, but also to whether the employer made statements or
engaged in conduct which make it likely to believe that he
gained knowledge of the protected concerted activity.
Samsonite Corp., 206 NLRB 343, 349 (1973). I conclude that
Reynolds speaks to knowledge in general, and does not require
that the decisionmaker must have direct knowledge of the pro-
tected concerted activity.
I also conclude that there is direct evidence of Rogers’
knowledge of the employees’ protected concerted activity.
Smith credibly testified, without contradiction, that he raised
the fringe benefit issue with Rogers at an employee meeting in
Lewistown job trailer in late September or early October.
Smith, in front of his fellow employees, told Rogers that he
“didn’t think it was fair that he was holding our fringe money,
not depositing it into our accounts.” Rogers “blew up on me”
claiming that he had every right to do what he was doing.
Rogers based his claim of right on shoddy work at other job-
sites. Smith’s unrefuted testimony was corroborated by Ed-
dinger. Accordingly, I find that Rogers knew of the employ-
ees’ concerted activities.
I also find sufficient circumstantial evidence to support such
a finding. Supervisor Dilworth was not only aware of the em-
ployees’ protected concerted activity, he helped Smith make the
phone call, accepted a complaint form and, in addition to being
told by Smith the names of the employees who would attend
the meeting with L&I, was invited to attend the meeting.
Melius testified that sometime between the scheduling of the
L&I meeting and the actual meeting, Dilworth told him that
Rogers had called him and was “pretty upset” about L&I get-
ting contacted. Shortly thereafter, Dilworth informed Smith
that he would not be attending the L&I meeting. Immediately
after the meeting Dilworth asked Smith “how was the meet-
ing.” I infer from the testimony of Melius and Smith, about
Dilworth’s reaction after he had the 3-hour phone conversation
with Rogers, that Dilworth told Rogers that the employees had
contacted L&I, and that the employees had scheduled a meeting
with L&I officials.
The evidence also supports a finding that the employees’
protected concerted activity was not a well-kept secret. Smith
credibility testified that it was not only Dilworth who asked
him about the meeting but also Doug Johnston. Johnston had
been Smith’s foreman at another of the Respondent’s projects.
ROGERS ELECTRIC, INC. 517
Although he was not working as a foreman at Lewistown, it is
clear that Johnston was perceived by Smith as, at the very least,
aligned with management. Thus, in response to the question
“[d]id anyone in management talk to you about your Labor and
Industry meeting” Smith named Dilworth and Johnston. The
record also contains additional evidence demonstrating that
Smith’s perception has validity. Johnston, along with Dilworth
and Sodmont changed Smith’s layoff status to permanent, not
subject to recall (CP Exh. 3 at 2).
Smith credibly testified that the day following the L&I meet-
ing at Hoss’ Restaurant in Lewistown, Johnston approached
him at the jobsite and asked, “How was the meeting,” to which
Smith replied, “What meeting.” Johnston said that he saw
Smith’s vehicle at the restaurant and said, “I am one of you
guys,” but then indicated that if Smith wanted to “be like that,”
Johnston would let it go. The Respondent called Johnston as a
witness. Johnston admitted making the “I’m one of the guys”
statement but put it in the context of a response to Smith’s re-
fusal to give Johnston an L&I complaint form that Smith was
distributing. Significantly, Johnston did not refute Smith’s
testimony regarding Johnston’s knowledge of the L&I meeting,
it thus stands uncontested and I credit Smith’s testimony.
Johnston did refute Smith’s testimony regarding another in-
cident. Smith testified about an incident that occurred after he
filed his complaint with L&I. Smith stated that there was a
weekend when the Respondent brought in 10 or 15 additional
employees to work at the site. Smith did not work that week-
end but when he returned Johnston told him, “Everybody is
mad at you, they want to beat you up, for filing a complaint.”
Smith said that the referenced complaint had to be the L&I
complaint because it was the only complaint that he filed.
I credit Smith’s testimony over Johnston’s blanket denial. I
credit Smith’s testimony about this incident, not only because
of his testimonial demeanor, but also because I find his testi-
mony about this incident to be believable. Lewistown was not
the only jobsite where employees were having their benefit
money withheld, but not deposited in their accounts. As set
forth above, Rogers justified the withholding of the Lewistown
employees payments based on “shoddy” work at other jobsites,
it follows that Rogers would feel even more entitled to with-
hold money from the employees who, at least in his view, were
performing the shoddy work. Rogers admitted at the 2004
annual meeting that “in the past year, we have been unable to
(make pension deposits) due to financial struggles.” It is un-
derstandable that had employees at other jobsites learned of the
L&I complaint, either from Johnston, or otherwise, that they
would be hostile to the complainant. As Rogers informed the
Lewiston employees, if they kept filing complaints with L&I
the Respondent could be debarred from obtaining PWA con-
tracts. If that happened the financial struggles that Rogers al-
luded to at the 2004 annual meeting might not be resolved and
the employees would never have their money deposited in their
accounts.
I also find strong circumstantial evidence in Rogers’ state-
ments to the employees at the November 5 meeting; disparag-
ing the employees’ concerted complaints concerning their wage
and fringe benefit payments, indicating that the employees’
concerted complaints were futile, threatening employees that
their concerted complaints would lead to loss of employment,
threatening employees by informing them that anyone who was
not content with the manner in which Respondent’s business
was run should leave, and creating the impression among em-
ployees that their protected concerted activities were under
surveillance. Samsonite Corp., 206 NLRB at 349.
Accordingly, I find that the statements above, all of which I
have found violate Section 8(a)(1) of the Act, and the knowl-
edge of Foreman Dilworth, Johnston, and other employees of
the protected concerted activity, provide independent bases for
inferring that the Respondent gained knowledge of the employ-
ees’ protected concerted activities.
The final element of the General Counsel’s case goes to the
Respondent’s motivation for taking adverse actions against the
employees. Whenever an employer’s motivation for a person-
nel action is in issue, it must be analyzed using the methodol-
ogy set forth in Wright Line, 251 NLRB 1083 (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). Under Wright Line, the General Counsel must
introduce persuasive evidence that animus toward the protected
activity was a substantial or motivating factor in the employer’s
decision. Once that has been done, the burden of persuasion
shifts to the employer to demonstrate that it would have taken
the same action even in the absence of protected activity on the
part of the employees. Manno Electric, 321 NLRB 278, 280 fn.
12 (1996). To sustain the initial burden, the General Counsel
must show (1) that the employees were engaged in protected
concerted activity; (2) that the employer had knowledge of the
activity; and (3) that the activity was a substantial or motivating
reason for the employer’s adverse action. Naomi Knitting
Plant, 328 NLRB 1279, 1281 (1999). Direct evidence of
unlawful motivation is seldom available and it may be estab-
lished by circumstantial evidence and the inferences drawn
from that evidence. E.g., Abbey Transportation Service, 284
NLRB 689, 701 (1987); FPC Molding, Inc. v. NLRB, 64 F.3d
935, 942 (4th Cir. 1994); Shattuck Denn Mining Corp., 362
F.2d 466, 470 (9th Cir. 1966).
As set forth in detail above, the General Counsel has met his
burden regarding the initial two elements. The unrefuted
statements made by an admittedly angry Rogers to the employ-
ees assembled in the Lewistown jobsite trailer during the meet-
ings in September/October and the meeting on November 5, is
persuasive evidence that animus towards the employees pro-
tected concerted activity was a motivating factor in the Re-
spondent decision to lay off the employees. Thus, in the Sep-
tember/October meeting he blew up at Smith when Smith spoke
of the unfairness to all the employees of withholding their
fringe benefit money but not depositing it to their accounts.
Rogers admitted to exhibiting similar anger when questioned
by Ellinger on the same topic. On the day preceding the em-
ployees’ meeting with the L&I officials Rogers took the oppor-
tunity to disparage the employees’ concerted complaints by
telling them that it was the wrong way to make changes. In
addition to telling them it was the wrong way to get change he
said that he only answered to God, both statements indicate the
futility of the employees’ concerted complaints. He threatened
the employees with loss of employment if they continued to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD518
engage in their protected concerted activity. He impliedly
threatened to discharge any employee who was not content with
the manner in which Respondent’s business was being run, and
finally he engaged in theatrics that created the impression
among employees that their protected concerted activities were
under surveillance.
Additional evidence of the Respondent’s unlawful motiva-
tion is the shifting reasons it gave for its actions. By November
26, Chris Sodmont had replaced Dilworth as the foreman at the
Lewiston jobsite. During the afternoon of November 26, Sod-
mont called Hunsinger and Smith into the Lewistown job trailer
and told them that they were being laid off for lack of work, not
for anything that they did or did not do. Immediately thereaf-
ter, Sodmont laid off Bailey, Eddinger, Ellinger, and Melius.
He told them that they were being laid off because the project
was caught up and there was a lack of work. He also told them
that as a disciplinary matter, specifically because of the tardi-
ness and late lunches, they would be the last to be recalled.
None of the other employees at the jobsite were laid off at that
time. Less than a week later, on December 1, Rogers sent a
memo to all employees stating that the November 26 layoffs
were “a direct result of the sloppy, substandard work and gross
negligence that has occurred at this job site from this 5 man
base crew” (GC Exh. 8). Several months later, at the annual
meeting in May 2004, Rogers responds to a question from
Melius asking why the Lewistown crew was laid off by saying
“The Lewistown crew was laid off due to a lack of work” (CP
Exh. 1 at 8).
Melius also testified that Rogers opened the annual meeting
in May 2004, by saying that “one bad apple can spoil the whole
basket.” Rogers then went on to announce that Eddinger had
asked to attend the meeting, but that he was on permanent lay-
off. Melius testified that he had seen Eddinger leaving the
parking lot and it was his belief that Rogers was referring to
Eddinger as the one bad apple. Melius was not cross-examined
on this matter. Despite being present during the testimony
Rogers did not deny, explain, or in anyway refer to the testi-
mony. Accordingly, the testimony is not contradicted, it is
consistent with the minutes of the annual meeting, and I find it
credible. (CP Exh. 1; Tr. 79.) The Board has long held that
accusing an employee of being a “bad or a rotten apple” is a
veiled reference to the employee’s protected concerted activi-
ties. E.g., Penn Color, Inc., 261 NLRB 395, 405 (1982); Jack-
son Packing Co., 170 NLRB 1361, 1364 (1968). When refer-
enced in the context of explaining why an employee was dis-
charged, similar remarks have been found to constitute “espe-
cially persuasive evidence” that the discharge was unlawfully
motivated. Cook Family Foods, 311 NLRB 1299, 1319 (1993).
Under the circumstances, I find that Rogers’ comments con-
necting Eddinger with a “bad apple” who was on permanent
layoff and was not allowed to be present with the “good em-
ployees” (CP Exh. 1, 1) indicates that his concerted activities
were considered by the Respondent and played a role in the
layoff decision.
Based on all the foregoing, I find that the General Counsel
has met his burden under Wright Line of establishing that the
employees’ protected concerted activity was a motivating factor
in their layoff. The burden of persuasion now shifts to the em-
ployer to show that it would have taken the same adverse action
even in the absence of the employees’ protected activity. See,
Transportation Management Corp., above at 399–403. To
meet this burden, “an employer cannot simply present a legiti-
mate reason for its action but must persuade by a preponder-
ance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Roure
Bertrand Dupont, Inc., 271 NLRB 443 (1984).
The advancing of a false reason for the Respondent’s action
suggests that “there is another motive [for the action that the
Respondent] wishes to conceal.” Cell Agricultural Mfg. Co.,
311 NLRB 1228 fn. 3 (1993), enfd. in relevant part 41 F.3d 389
(8th Cir. 1994). Similarly, [s]hifting reasons for discipline, in
the presence of a prima facie case, are evidence of, and support,
a finding of an unlawful motive. Scott Lee Guttering Co., 295
NLRB 497, 508 (1989).
“While it is a truism that management makes management
decisions, not the Board, . . . it remains the Board’s role, . . . to
determine whether management’s proffered reasons were its
actual ones.” Uniroyal Technology Corp. v. NLRB, 151 F.3d
666, 670 (7th Cir. 1998). In making that determination, it is
appropriate to consider the insubstantial nature of the miscon-
duct. See Neptune Water Meter Co. v. NLRB, 551 F.2d 568,
570 (4th Cir. 1977).
3. The Respondent’s defenses
The Respondent has not satisfactorily reconciled the differ-
ent reasons offered for the discriminatees’ layoff. Thus, on
November 26, Sodmont tells all the discriminatees, including
the base crew, that their lay off is caused by lack of work. On
December 1, Rogers, in a memo to all employees, lambastes the
base crew by stating that the layoff “was taken as a direct result
of the sloppy, substandard work and gross negligence that has
occurred at this job site of this 5 man base crew.” Notwith-
standing his memo in December, at the annual meeting in May
2004, Rogers answers the question posed by Melius, as to why
the base crew was laid off and others brought in, by stating that
the base crew was laid off for lack of work.
The Respondent’s brief lists 42 items that it contends dem-
onstrates by the preponderance of the evidence that it would
have taken the same actions absent any protected concerted
activity on the part of its workers. I will address what I con-
sider to be the three reasons advanced by the Respondent, albeit
at various times, for laying off and not recalling Smith,
Hunsinger, Bailey, Eddinger, Ellinger, and Melius.
Somont and the General Counsel’s witnesses agree that
Somont told them that they were laid off for lack of work.
Notwithstanding the layoff of the work at the Lewistown job
continued for at least 2 more months. Several of the employees
who continued to work, had only recently been transferred to
the site, and others were transferred after the discriminatees
were laid off. Dilworth and six other employees continued to
work at the site for at least another week.
Sodmont testified that he did not layoff Dilworth because of
Dilworth’s knowledge of the job. The Respondent offered no
evidence that the laid-off employees lacked knowledge, or why
the same reasoning would not apply to all of the base crew. All
of them had worked on the project from the beginning and it is
ROGERS ELECTRIC, INC. 519
reasonable to infer that they, like Dilworth, would have a far
greater understanding of what needed to be done than newly
arriving employees, such as employees Lee and Storm (R. Exh.
4). Nor has the Respondent given any reason why the dis-
criminatees were laid off, while other employees such as the
Buck brothers, who arrived at the site after the discriminatees,
not only continued to work at the site, but were later transferred
to other jobsites without interruption. Omahaline Hydraulics
Co., 342 NLRB 872, 883 (2004).
At one point in his testimony Rogers stated that he “was
forced to cut, it was totally lack of work.” The Respondent’s
records, set forth above, demonstrate the inaccuracy of that
statement. As detailed above, the records show that new em-
ployees were being transferred to the jobsite, as the more ex-
perienced base crew was being laid off. Moreover, counsel for
the General Counsel contends that the Respondent’s failure to
provide documentary evidence supporting its claim of eco-
nomic justification is, itself, evidence of pretext. Wilco Busi-
ness Forms, Inc., 280 NLRB 1336, 1337 (1986); T & T Ma-
chine Co., 278 NLRB 970, 978 (1986). I agree. Additionally,
the existing documentary evidence indicates the opposite of the
Respondent’s contention. At the January 23, 2004 foreman’s
meeting Rogers, reporting on the condition of the Company,
says, “We may have to use a temporary labor service again.
Otherwise, we may have to work overtime until people drop”
(CP Exh. 2 at 2). This does not sound like the statement of an
employer who is being forced by economic conditions to lay
off employees.
I credit Sodmont’s testimony insofar as he states that in addi-
tion to telling Bailey, Eddinger, Ellinger, and Melius that they
were laid off for lack of work he told them that they would be
the last to be recalled specifically because of the late lunches
and the tardiness. Although he may have spoken in general
terms about overall problems that were encountered on the
project, I reject the contention that he put any of the discrimina-
tees on notice of personal work-related inadequacies, other than
the late lunches and the tardiness.
The record is clear that the discriminatees, as well as other
employees at the Lewistown jobsite, took long breaks and
lunches. Foreman Dilworth not only condoned this conduct,
but engaged in it. The evidence is also clear that taking long
breaks and lunches was not limited to Lewistown. During the
January 2004 foreman’s meeting Rogers commented that “[a]t
present, we are losing an hour a day from employees from
breaks and lunch. Breaks are overrunning the ten–minute limit.
We need suggestions as to how to correct this problem” (CP
Exh. 2 at 2). Notwithstanding the prevalent nature of the prob-
lem no employee, except for the Lewistown employees who
had contacted L&I, were disciplined. Dilworth, who was the
individual charged with preventing such transgressions on the
jobsite, suffered no consequences for his tardiness or his lack of
leadership. This is so, notwithstanding the fact that Rogers
showed no reluctance to issue Dilworth a written reprimand for
changing the work hours, without first telling Rogers.
Additional evidence that this purported reason is pretextual
is provided by a memo from Jerry Brandt to Rogers dated July
16, 2003. Brandt was the overall onsite superintendent for the
Lewistown project. He wrote to Rogers that Rogers’ employ-
ees were working very hard, but they were too few. A week
later requested that Rogers increase the man-hours worked on
the project. Thus, it appears that from Brant’s viewpoint, the
length of time taken for breaks and lunch was not a factor in the
Respondent’s being behind schedule. Indeed, the evidence
shows that it was not unusual for the Respondent to be behind
on many of its undertakings. Rogers admitted to being late on
at least three projects and on none of those was the base crew
laid off.
I also find the Respondent’s statement that the discriminatees
performed “sloppy, substandard work and gross negligence”
(GC Exh. 8), to be an incredibly gross exaggeration. There is
absolutely no documentary evidence that any member of the
base crew was ever reprimanded for poor performance, or for
any dereliction of duty, until well after the layoff. I also note
that the Respondent’s failure to reprimand any of the discrimi-
natees is inconsistent with its amended company policy of Sep-
tember 2003. The memo announcing the change states that
employees who continuously fail to work productively, or who
are less than competent, will be notified, both verbally by their
immediate supervisor, and in writing, that they have been
placed on a list of individuals that will be laid off first. The
final change mentioned in the memo is that the Respondent
“will start issuing written reprimands that will become part of
that employee’s permanent record.” (R. Exh. 11.)
Moreover, it would appear that if there was even some truth
to the assertion contained in the Respondent’s December 1
memo, Rogers would have included the Lewistown project
when he announced, in September/October, that because of
sloppy work—at other jobsites, he felt justified in withholding
the employees’ pension money.
To the extent that the Respondent suggests that I credit Deb-
orah Rogers’ testimony, claiming that during an exchange be-
tween her and Melius at the 2004 annual meeting, Melius said
that he did not personally feel that his work at Lewistown was
good work, I reject that contention.
Deborah Rogers is the wife of Brad Rogers, coowner of the
Respondent, and Respondent’s secretary/treasurer. She stated
on direct examination that on two occasions during the open
discussion portion of the 2004 annual meeting, Melius ac-
knowledged that he did not personally feel that his work on the
Lewistown job was good. She further stated that although
Melius was sitting at the farthest point away from her, the room
was “very quiet” and that she had no problem hearing him, nor
he her.
Melius credibly testified that he remembered her asking the
question, but that he answered, “Yes,” that he felt that he was
doing a good job. I credit his testimony of this incident.
Melius not only exhibited the testimonial demeanor of a wit-
ness who was honestly attempting to recollect past events cor-
rectly, but Deborah Rogers’ testimony is not corroborated in
any manner. Notwithstanding her claim that the room was
quiet when the exchange occurred, and that she identified
where in the minutes it happened (CP Exh. 1 at 8)—the minutes
in no way reflect her testimony. Sodmont, whom she claims
was sitting next to her, did not corroborate her testimony, nor
did any witness who attended the meeting. Asaro, Inc., 316
NLRB 636, 640 fn. 15 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD520
On December 11, Melius returned to the Lewistown jobsite
to remove some personal effects. He was approached by
Rogers who said that Dilworth had told him that Melius had
damaged a breaker in the switch gear by not supplying suffi-
cient torque to the breaker. Melius acknowledged that he might
have been responsible, but couldn’t say for sure because there
were a number of people in and out of the switch gear. Rogers
said nothing more on the matter, but on January 9, 2004,
Melius received a written reprimand in the mail. (GC Exh. 7.)
Melius testified that he had never previously installed the
type of breaker used on the Lewistown project. He testified
that he had told his foreman of that fact. Nevertheless, the
foreman did not provide him with either the specifications for
the torque, or a torque wrench, both of which are necessary to
properly perform the job.
Notwithstanding Rogers presence in the hearing room when
Melius testified, Rogers did not mention this incident in his
testimony, nor is it addressed in the Respondent’s brief. Coun-
sel for the General Counsel suggests that the timing of the rep-
rimand, 6 weeks after his last day of work and 2 days after the
Respondent received the Board charge, is evidence of unlawful
motivation. Timing is an important factor in assessing dis-
criminatory motivation. See, e.g., Detroit Paneling Systems,
330 NLRB 1170 (2000). The timing here is enough to show an
apparent link, and significantly, the General Counsel has met
his burden. Thus, the Respondent “not only must separate its
tainted motivation here from any legitimate motivation, but it
must persuade that its legitimate motivation outweighs its
unlawful motivation such that the Company would have im-
posed the discipline even in the absence of [the protected con-
certed activities]. Formosa Plastics, 320 NLRB 631, 648
(1996). This the Respondent has not done.
Eddinger also received a reprimand on January 9, 2004, for
neglecting to retrieve anchor bolt caps (GC Exh. 10). Eddinger
testified, without contradiction, that he was following an order
from his foreman. He also testified that he was never asked
about this incident. In addition to the timing, failing to question
Eddinger about this incident is additional evidence of unlawful
motivation. Goodman Forest Industries, 299 NLRB 49, 55
(1990).
At the hearing Rogers also contended, for the first time, that
Eddinger was the cause of the Respondent having to pay a back
charge of $216 for failing to clean up his work area after being
laid off. Not only was Eddinger never questioned about this
incident, but Rogers admitted on examination by counsel for
the General Counsel that the Respondent had received much
higher back charges on other jobsites and yet no employee was
disciplined or permanently laid off as result. Disparate nature
of employee discipline is additional evidence of unlawful moti-
vation. Tubular Corp., 337 NLRB 99, 99 (2001).
I also reject the Respondent’s contention that its slate is
somehow made clean by allegedly having three foremen vote to
place Eddinger and Smith on permanent layoff. The Respon-
dent has a policy, as articulated by Rogers, that if “three fore-
men ask to remove, or do not want to work with an individual,
that triggers an automatic action in our office, as management”
(Tr. 398). Foreman Mantini testified that he was present at the
executive session of the foreman’s meeting, along with Brad
Rogers and others, when the foregoing policy was imple-
mented. Mantini initially testified that Rogers made comments
regarding the individuals, but did not vote. After being shown
the minutes (CP Exh. 3) he changed his testimony to say that
Rogers voted. He did so because Rogers is listed as one of the
foremen voting to change Eddinger’s layoff status to permanent
(CP Exh. 3 at 1).
Rogers acknowledged that he was listed in the minutes but
stated that he was not relying on his own opinion. Since
Rogers had just testified that a vote of the foremen only “trig-
gers an automatic action by management,” and Rogers is the
Respondent’s top management official, it is difficult to under-
stand how he could not help but rely on his own opinion. It
also appears that his opinion would be of greater value than that
of Dilworth. Dilworth was no longer employed by the Respon-
dent, had been removed from his supervisory position for in-
competence, and did not attend the meeting. His “vote” to
place Eddinger and Smith on permanent layoff was, however,
counted (CP Exh. 3 at 1–2).
Johnston was another former supervisor who was relieved of
his supervisory duties because of his “many inadequacies” (CP
Exh. 3 at 2), but who nevertheless, along with Dilworth, made
up two thirds of the “vote” to permanently change Smith’s
layoff status to permanent.
I do believe that Rogers made comments about the employ-
ees in question. His testimony regarding Eddinger is very simi-
lar to the recorded comments at the executive session, this may
be why the scribe erroneously recorded Rogers as a vote to
change Eddinger’s layoff status to permanent. The minutes
also include photographs and statements about the back charges
as well as a statement that he “has been known to leave work
unfinished” (CP Exh. 3 at 1), this appears to be a reference to
the incident for which he was reprimanded. I have found that
those incidents are attempts by the Respondent to hide its
unlawful motive. Accordingly, neither incident can be the basis
for additional discipline.
Similarly when asked why Smith was permanently laid off,
Rogers said, “Black cloud around him.” When asked to eluci-
date, he replied, “It just keeps following him. The first place he
end[s] up, the first thing that happens, people don’t like him.”
In the minutes Smith’s attitude is compared to being “similar to
that of a black cloud” and he is labeled a “chronic complainer.”
I find that the reference to people not liking him may be about
the threats to his well-being, made by his fellow employees, for
filing a complaint with L&I. Regardless, accusing an employee
of having a “bad attitude” has long been considered a veiled
reference to the employee’s protected concerted activities.
E.g., Children’s Studio School Public Charter School, 343
NLRB 801, 805 (2004), and cited cases.
I find that “the vote of three” contributes little to the Re-
spondent’s burden to demonstrate that it would have taken the
same action even in the absence of Eddinger’s and Smith’s
protected concerted activities.
I find no merit to the Respondent’s claim that Hunsinger and
Melius, who also filed complaints with L&I, were not perma-
nently laid off. It is well settled that a discriminatory motive,
otherwise established, is not disproved by an employer’s proof
that it did not weed out all of the employees who engaged in
ROGERS ELECTRIC, INC. 521
activities that incurred the employer’s displeasure. E.g., Audu-
bon Regional Medical Center, 331 NLRB 374, 376 (2000), and
cited cases.
I find the Respondent’s contention that the reason that Smith
was laid off first was because he had submitted a request for a
voluntary layoff to be a pretext. As set forth below the evi-
dence does not establish that the Respondent was acting on
Smith’s request when Sodmont laid him off.
Sodmont claims that he confirmed with Smith that Smith had
volunteered to be laid off before Sodmont laid him off. I credit
Smith’s denial that Sodmont never mentioned his request for a
voluntary layoff. I do so, based not only on Smith’s testimonial
demeanor on this issue, but also because Sodmont’s statement
is not supported by the Respondent’s records. Respondent’s
Exhibit 4 indicates, among other things, why employees left the
Respondent’s employ. Letter codes are used as designators,
“L” is for layoff and “VL” for voluntary layoff. Smith’s layoff
is designated by an “L” (Tr. 421). This evidence is especially
detrimental to Sodmont’s credibility on this issue. It was Sod-
mont who initiated the layoff, it follows that Sodmont is also
responsible for applying the correct code.
As further evidence that Smith was chosen for layoff because
of his protected concerted activity, Rogers admitted that at least
one other employee, Greg Buck, had requested a voluntary
layoff, during the same timeframe, but was not laid off until
December. Rogers offered no explanation for the disparity.
I find that all the foregoing evidence strongly supports the
inference that the layoff of Hunsinger, Smith, Bailey, Eddinger,
Ellinger, and Melius and the failure to recall Smith, Bailey,
Eddinger, Ellinger, and Melius was in retaliation for their en-
gaging in protected concerted activity. I find that the reasons
advanced by the Respondent are pretextual—meaning that they
either did not exist or were not in fact relied upon, by the Re-
spondent, thereby leaving intact the inference of wrongful mo-
tive established by the General Counsel. Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982).
Accordingly, I find that the Respondent violated Section
8(a)(1) of the Act as alleged in the complaint.
CONCLUSIONS OF LAW
1. By laying off employees Eric Bailey, Sam Eddinger, Rod-
ney Ellinger, Jacob Hunsinger, Roy Melius, and Brian Smith on
November 26, 2003, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. By disparaging employees’ concerted complaints, by in-
dicating that the employees’ concerted complaints were futile,
by threatening employees that their concerted complaints would
lead to loss of employment, by threatening employees by in-
forming them that anyone who was not content with the manner
in which the Respondent’s business was run should leave, and
by creating the impression that its employees concerted activi-
ties were under surveillance, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent having unlawfully laid-off employees it
must offer them reinstatement and make them whole for any
loss of earnings and other benefits, computed on a quarterly
basis from date of layoff to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). I am aware that Jacob Hunsinger was recalled on Janu-
ary 19, 2004. Nevertheless, I have included him in the recom-
mended Order to ensure that he receives the full benefit of the
Board’s make-whole remedy.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Rogers Electric, Inc., Orbisonia, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully laying off, disciplining, or otherwise dis-
criminating against employees because they have engaged in
concerted activities protected by Section 7 of the Act.
(b) Disparaging employees’ concerted complaints, indicating
that the employees’ concerted complaints are futile, threatening
employees that their concerted complaints would lead to loss of
employment, threatening employees by informing them that
anyone who is not content with the manner in which the busi-
ness is run should leave, and creating the impression that the
employees’ concerted activities are under surveillance.
(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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Eric Bailey, Sam Eddinger, Rodney Ellinger, Jacob Hunsinger,
Roy Melius, and Brian Smith full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Eric Bailey, Sam Eddinger, Rodney Ellinger, Jacob
Hunsinger, Roy Melius, and Brian Smith whole for any loss of
earnings and other benefits suffered as a result of the unlawful
action against them, in the manner set forth in the remedy sec-
tion of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoffs and reprimands,
and within 3 days thereafter notify the employees in writing

2 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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD522
that this has been done and that the unlawful layoffs and repri-
mands will not be used against them 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 designated by the Board
or its agents, all payroll records, social security payment re-
cords, 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 backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Orbisonia, Pennsylvania, and at all current jobsites,
copies of the attached notice marked “Appendix.”3 Copies of

3 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the notice, on forms provided by the Regional Director for Re-
gion 6, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent 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 not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, 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 November 5, 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.