SPE Utility Contractors, LLC

National Labor Relations Board - Board Decisions

Mar 30, 2009

353 N.L.R.B. 1188 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 123
1188
SPE Utility Contractors, LLC and Linda M. Leuch.
Case 7–CA–50767
March 30, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On December 17, 2008, Administrative Law Judge Ira
Sandron issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings,2
findings,3 and conclusions4 and to adopt the recom-
mended Order.5

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3 (b) of the Act.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent states that the judge’s rulings, findings, and conclu-
sions demonstrate bias and prejudice. On careful examination of the
judge’s decision and the entire record, we are satisfied that the Respon-
dent’s contentions are without merit.
3 There were no exceptions to the judge’s dismissal of the allegation
that the Respondent violated Sec. 8(a)(3) and (1) by discharging Linda
Leuch because of her union activity.
The Respondent contests the propriety of the judge’s 8(a)(4) finding
absent specific precedent holding that an employer violates the Act
when discharging an employee to curtail her potential backpay award in
another unfair labor practice proceeding. Regardless whether there is
precedent on all fours, we agree with the judge that the Respondent’s
discrimination against Linda Leuch, for pursuing her claim before the
Board, is the essence of an 8(a)(4) violation. See General Services,
Inc., 229 NLRB 940, 941 (1977), relying on NLRB v. Scrivener, 405
U.S.117, 122 (1972).
In his August 16, 2007 telephone conversation with Leuch, the Re-
spondent’s owner, David Postill, referred to his July 23 and August 7,
2007 letters to her. The judge inadvertently stated that Postill refer-
enced his July 23 and August 2 letters to Leuch. We correct this error,
and note that it does not affect our findings.
4 In determining that the Respondent violated Sec. 8(a)(4), the judge
found that the General Counsel established that Leuch’s participation in
another unfair labor practice proceeding was a motivating factor in the
Respondent’s discharge of her, as shown by: (1) Leuch’s participation
as an alleged discriminatee and witness in this other proceeding; (2) the
Respondent’s knowledge of this; (3) the Respondent’s animus against
Leuch’s status as a potential discriminatee; and (4) a causal connection
between that animus and Leuch’s discharge. Although Board cases
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, SPE Utility Contractors,
LLC, Port Huron, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Dynn Nick, Esq., for the General Counsel.
Kenneth M. Gonko, Esq. (The Danielson Group, PC), of Ches-
terfield, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. The complaint,
issued on January 31, 2008, stems from unfair labor practice
(ULP) charges that Linda M. Leuch, an individual, filed against
SPE Utility Contractors, LLC (Respondent or SPE), and alleges
that Respondent violated Section 8(a)(3), (4), and (1) of the
National Labor Relations Act (the Act) by discharging her on
August 7, 2007.1 The 8(a)(4) allegation relates to previous
charges filed against Respondent by Local 339, International
Brotherhood of Teamsters (the Union), Leuch’s bargaining
representative. One of the allegations in the ensuing complaint
was that her December 20, 2006 layoff violated Section 8(a)(5)
of the Act. Leuch testified at the trial that Judge Arthur J. Am-
chan conducted on August 8 and 9.2
Pursuant to notice, I conducted a trial in Detroit, Michigan,
on April 30–May 1, and October 23, 2008, at which the parties
had full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence.3 Respondent and the
General Counsel filed helpful posthearing brief that I have duly
considered.
Issue
Was Respondent’s August 7 discharge of Leuch for not
meeting with Respondent on July 30 and August 6, to provide
information concerning her billing and performance of other

typically do not include (4) as an independent element (see, e.g., New-
cor Bay City Division of Newcor, 351 NLRB 1034 fn. 4 (2007)), be-
cause Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), is a causation analy-
sis, Member Schaumber agrees with its addition when analyzing both
8(a)(3) and (4) allegations. See, e.g., St. George Warehouse, Inc., 349
NLRB 870, 878 fn. 28 (2007).
5 We reject the Respondent’s contention that the judge improperly
ordered, as part of the expunction remedy, that Leuch’s discharge not
be used against her in any way. This is part of the traditional remedy
for unlawful discharges. See, e.g., All Pro Vending, 350 NLRB 503
(2007).
1 All dates are in 2007, unless otherwise indicated.
2 In JD–67–02, issued on October 2, he found that her layoff violated
Sec. 8(a)(5), on a different basis than that alleged in the complaint (Jt.
Exh. 1). The Board later reversed this determination, in 352 NLRB 787
(2008) (Jt. Exh. 3).
3 The trial was postponed indefinitely on May 1, 2008, when the par-
ties entered into a non-Board settlement agreement. The settlement
failed of achievement, and the hearing was resumed and concluded on
October 23, 2008.
SPE UTILITY CONTRACTORS, LLC 1189
duties, based on lawful considerations, or because of union
activities and/or her status as a potential recipient of backpay
under the Act and as a witness at an NLRB trial?
At the outset, I note that Respondent’s sole proffered basis
for the discharge was her failure to meet and provide informa-
tion, not her conduct in any of the matters it wished to discuss
with her.4
Witnesses and Credibility
On April 30, the General Counsel called David Postill, Re-
spondent’s chief executive officer (CEO) and majority stock
holder, as an adverse witness under Section 611(c); Kurt Sa-
tryb, Respondent’s former vice president in charge of Florida
operations; and Leuch.
On October 23, Respondent called Michael Moriarty, presi-
dent, and Postill, whose testimony was limited to what was said
in his telephone conversation with Leuch in mid-August. I note
here that at the time I scheduled the resumed hearing for Octo-
ber 23, 2008, Postill had plans to be out of town. In the interest
of timely concluding the trial, I allowed him to testify tele-
phonically on October 23, 2008, over the General Counsel’s
objections. I determined that this would cause no prejudice to
either the General Counsel or the Charging Party, inasmuch as
he had testified at length as a 611(c) witness on April 30, and I
therefore previously had ample opportunity to observe his de-
meanor.
Leuch appeared sincere and to answer questions readily and
without hesitation, taking into account that much of her testi-
mony involved events that occurred in 2005 during and after
Hurricanes Katrina and Rita (the hurricanes). She candidly
conceded during portions of her testimony that, in hindsight,
she might have handled some of her communications with SPE
more tactfully.
Satryb also struck me as candid and as not making efforts to
slant his testimony in favor of one party or the other. Although
he has contacted an attorney concerning possible legal action
against SPE for terminating him on July 31, allegedly for vio-
lating the no-competition clause in his employment contract, he
has continued to perform work for SPE under his own business.
Thus, he might naturally have countervailing reasons to testify
for or against Respondent. Reflecting his lack of bias in favor
of Leuch was his testimony that he had recommended she be
discharged prior to her December 2006 layoff, based on what
Postill reported to him about her conduct, but that Postill de-
cided to lay her off instead.
Moriarty admittedly had limited knowledge of Leuch’s per-
formance; he testified that prior to February, when he became
president, Postill was always her direct supervisor. On one
matter, I find his testimony implausible, to wit, that at the time
he issued Leuch the July 23 letter (and, ergo, the August 2 let-
ter), he did not know the specific date of the scheduled NLRB
trial (August 8) but merely knew that it was coming up.
Postill demonstrated notable defensiveness and unease dur-
ing his testimony on April 30, and he also displayed defensive-
ness during his telephonic testimony on October 23. He was
often evasive, vague, and/or nonresponsive in his answers; he

4 See Tr. 33, 279.
sometimes contradicted himself; and portions of his testimony
were not plausible. Following are examples of these deficien-
cies in his testimony. Others will be addressed in the “Facts”
section.
Postill was evasive and inconsistent on who made the deci-
sion to terminate Leuch. Thus, he first testified that, “I played a
role in that with my team,” then narrowed “management” to
Moriarty, and later testified, “I’m the CEO of the Company;
ultimately I don’t care what [Moriarty]—what decision
[Moriarty] made. I agreed with it and supported it.”5
To give context to what follows, four subjects were cited in
the discharge letter: (1) Leuch billed Florida Power and Light
(FPL) for her labor during a week she was off work and paid by
SPE; (2) while reconciling FPL records, she paid both office
staff and temporary services for 16-hour shifts, although she
had no authority to do so; (3) she continued to use Vonage
service paid by SPE; and (4) in reconciling FPL and Entergy
accounts, it appeared that she made significant payments to
subcontractors beyond the pay-when-due clause of their con-
tracts. Significantly, all of the cited FPL issues and the Vonage
service matter arose in 2005 from posthurricane work that SPE
performed for FPL in southern States.
Postill’s testimony about SPE’s attempts to resolve its billing
disputes with FPL stemming from hurricane-related work in
2005 was evasive to the point where it was practically incom-
prehensible.6 His explanation of why he did not request more
information from Leuch until July was wholly unbelievable.
Thus, when asked if he was aware of all of the specific billing
issues with FPL in May (which amounted to millions of dol-
lars), he replied, “Some were mentioned to me. I don’t know if
I had the documentation because at that point I was just rolling
up my hand and getting involved in it.”7 Yet, he also testified
that Leuch worked on reconciling the billing differences with
FPL prior to her layoff in December 2006. I cannot find plau-
sible that, as CEO and majority owner of a small company, he
was still so unknowledgeable about such a major problem with
a large customer.
To best illustrate why I have found Postill an unreliable wit-
ness, I will use his testimony regarding Leuch’s allegedly pay-
ing office staff and temporary service workers for 16-hour
shifts, without authorization. He testified this occurred proba-
bly as far back as 2004. He asserted that he did not ask Leuch
for more information until July, because, “I did research based
on a rumor I heard prior to [seeing documents in 2007], and I
looked at it and it was confirmed. Once it was confirmed, I
wanted to bring her in and ask her and see what the reasoning
was.”8
Aside from vagueness, such testimony is at odds with his
admission that he knew she was paying herself and his mother
(then the only other office employee) for 16-hour shifts at the
time of occurrence. He also stated in his affidavit that “[w]hen
I talked to Leuch about this issue, she acknowledged that she
paid the employees outside of the rate,” even though he had not

5 Tr. 49, 51.
6 See Tr. 80, et seq.
7 Tr. 92.
8 Tr. 65.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1190
authorized it, and it was his decision to make.”9 Moreover, he
averred in the affidavit that he had talked to her about paying
temporaries and office staff with the same overtime provisions
as provided to union members, and that she acknowledged
doing this. Finally, an e-mail dated June 24, 2005, from Postill
to FPL10 shows his knowledge of the issue at that time.
I also find incredulous his testimony that despite his knowl-
edge of Leuch’s alleged malfeasance in 2004 and 2005, she
continued “running” his office until her layoff in December
2006.11
Postill’s telephonic testimony, in which he was asked solely
about a telephone conversation with Leuch in mid-August was
also unconvincing (Leuch had testified, in sum, that he called
her on August 16 and said he was sorry about her termination,
but SPE lawyers had instructed him to terminate her to limit
liability). Vague and evasive, he professed absolutely no recol-
lection of anything specific that she said, although he testified
that the conversation occurred after her mother’s funeral (and,
therefore, after her termination). I find this totally unbeliev-
able, especially when he repeated over and over again that
when he called her to express condolences, she “went off” on
matters unrelated to her mother’s death. The following, during
his cross-examination, reflects both the defects in his testimony
concerning the phone call and his marked defensiveness:
When she picked up the phone, immediately she started going
off. Was she going off because she’s mad at me, she’s mad at
the company? I don’t know. I didn’t put a lot of faith in it,
even listen to it much because that wasn’t the nature of my
call. And we’re talking about Linda. She could have been
going off because she lost the Lotto. I don’t know. I don’t
remember.12
I highly doubt that she would have vented anger against him or
SPE because she lost the Lotto or because he called to offer
condolences. The only plausible explanation is that she ex-
pressed wrath at her termination, which had occurred a little
over a week earlier.
In this regard, as amply reflected by Leuch’s testimony and
that of other witnesses (including Postill), documents of record,
and my observations of Leuch during her testimony, Leuch is a
forceful individual who does not mince words. I find it wholly
implausible that, even if he did not raise the subject of her very
recent discharge, she would not have done so sua sponte.
For the above reasons, I credit Leuch and Satryb where their
testimony diverged from that of Postill and Moriarty.
Facts
Based on the entire record, including witness testimony,
documents, stipulations, and uncontested findings of fact in
Judge Amchan’s previous decision, I find the following facts.
Respondent, a Michigan corporation with a permanent office
and facility in Port Huron, Michigan (the office), is engaged in
the construction, maintenance, and repair of high-voltage elec-
trical lines for utility companies and some commercial custom-

9 See Tr. 67.
10 GC Exh. 15.
11 Tr. 95–96.
12 Tr. 382.
ers. Jurisdiction has been admitted, and I so find. SPE per-
forms work nationally and obtains its field employees from
International Brotherhood of Electrical Workers hiring halls.
During hurricane or storm work, there may be 400–500 such
employees; at other times, the number averages 80–120.
I take administrative notice that Hurricane Katrina made
landfall in southeast Louisiana on August 29, 2005, and that
Hurricane Rita made landfall near the Louisiana–Texas border
on September 24, 2005.
SPE began operations in 2001 under four partners, including
Postill and Satryb. Later, Satryb sold his ownership interest to
Postill, who at some point became the majority owner.
Satryb hired Leuch as office manager in September 2003.
From the start, she handled accounts receivable and prepared
billings for different power companies for which Respondent
performed work, and she continued doing so throughout her
employment and until her layoff on December 20, 2006. Leuch
was technically “demoted” in mid-October 2005 from office
manager to accounts receivable, as a result of her out-of-State
work following Hurricane Katrina. However, her duties in the
office did not change, and she continued to perform them with
the same degree of independence.
Following the 2005 hurricanes, SPE performed extensive
work for FPL, in the repair of overhead power lines to restore
power to residential customers. Leuch spent a total of about 8
weeks in SPE’s temporary office locations in Florida; Jackson,
Mississippi; and New Orleans. During this period, SPE em-
ployed up to 450 employees in southern States, and Satryb
supervised all of the general foremen, linemen, groundmen,
truckdrivers, and a temporary secretary. This work ended in
late 2006.
On August 14, 2006, the Union was certified as the collec-
tive-bargaining representative of Respondent’s clerical employ-
ees. A series of negotiations was held from October 2006
through March, but no agreement was reached.
Leuch was the alternate steward until December 20, 2006,
when she and two other unit employees were laid off. Be-
tween August 7, 2006, and April 27, the Union filed the
charges and amended charges that culminated in the hearing on
August 8 and 9. As noted, one of the allegations in the com-
plaint was that her layoff violated Section 8(a)(5) of the Act. It
was not alleged as an 8(a)(3) violation.
By letter of January 4, Leuch requested a copy of her per-
sonnel file, pursuant to state law and, after an exchange of cor-
respondence, she met in late January with Thomas D’Luge,
SPE’s attorney, and reviewed documents that Respondent ad-
vised her were available.13
In May, representatives of SPE, including Postill and Satryb,
met with FPL executives at FPL’s offices in West Palm Beach,
Florida, to try to work out their billing disagreements. At the

13 GC Exhs. 2–7. Such conduct does not come under the parameters
of protected concerted activity. See Tradewaste Incineration, 336
NLRB 902, 906 fn. 8 (2001).
SPE UTILITY CONTRACTORS, LLC 1191
time this occurred, reconciliation efforts between the two com-
panies had already gone on for a full year, or since mid-2006.14
On June 27, Regional Director Stephen Glasser issued an or-
der rescheduling the trial from June 27 to August 8.15
I credit Satryb’s unrebutted testimony as follows. In July, he
had a conversation with Postill in the parking lot. When they
were discussing the office employees’ effort to decertify the
Union, Postill brought up Leuch and stated that, as directed by
SPE’s lawyers, “[H]e probably would have to fire her because
it would stop the backpay.”16
Moriarty, by certified letter of July 23 to Leuch, stated:17
Since your layoff in December 2006, SPE has been
working on reconciling its accounting records . . . .
In conjunction with these reconciliations, we have be-
come aware of certain acts or omissions not in conformity
with SPE’s practices.
We are seeking any input that you may have regarding
these inconsistencies and request that you appear at SPE’s
office this Monday, July 30, 3007 at 9 Am [sic] . . . .
This meeting is time sensitive as we are in the process
of negotiating settlement with FPL and Afton Power. If
you are unable to assist SPE in these matters, we shall
proceed to finalize these matters without your input.
Moriarty testified that at the time he prepared and sent the
letter, he had no intention of discharging Leuch; rather, his
purpose was to get further information from her.
Leuch telefaxed a response on July 30, stating that the letter
had arrived when she was attending to the needs of her
mother’s death and subsequent funeral, and that she could not
appear on Monday morning “due to a previous appointment
regarding the upcoming trial.”18
In a letter to Leuch of August 2,19 Moriarty essentially re-
peated verbatim what he had stated in his July 23 letter, and he
requested that she appear for the same purpose on August 6 at
12:30 p.m. Again, Moriarty asserted that at the time he pre-
pared and sent the letter, he had no intention of discharging her.
Leuch responded by a telefax of August 6,20 wherein she
raised issues concerning whether SPE had properly paid bene-
fits and compensation to her and other employees. As to the
requested meeting on August 6, she replied, “I will be unable to
appear at SPE’s office due to a previous appointment regarding
the upcoming trial.”
The following day, August 7, Moriarty sent her, by certified
mail, a discharge letter.21 He reiterated that SPE had sought her
input to “matters that arose after your layoff,” generally relating
to FPL work. He set out and discussed four areas of her alleged

14 Credited testimony of Satryb, which was not necessarily contra-
dicted by Postill, who was very vague and evasive about the reconcilia-
tion process.
15 GC Exh. 8.
16 Tr. 116; see also Tr. 118.
17 GC Exh. 9.
18 GC Exh. 12.
19 GC Exh. 13.
20 GC Exh.14. She inadvertently referred to his August 2 letter as
“August 4.”
21 GC Exh. 15.
misconduct (specifically addressed in the next section). He
concluded by stating that SPE considered these allegations
substantiated because she had not provided a sufficient reason
for her actions.
Leuch appeared and testified at the NLRB trial on August 8
and 9. By faxed letter of August 14, she denied, in rather color-
ful language, Moriarty’s allegations against her.22
On the evening of August 16, Postill called Leuch at home.
He quoted portions of her August 14 letter and said he was
sorry but that his lawyers made him write the July 23 and Au-
gust 2 letters because of the August 8 trial.23
Respondent’s Position
I reiterate that Respondent’s sole basis for discharging Leuch
was her failure to come in and discuss the issues raised in
Moriarty’s July 23 and August 2 letters, not the underlying
alleged acts of misconduct. Therefore, I will focus primarily on
when they occurred and when Postill first had knowledge.
Leuch billed FPL for her labor during a week she was off
and paid by SPE.
Postill testified that FPL representatives complained in 2007
that Leuch had improperly billed FPL for office work she per-
formed at the temporary office(s).
However, Postill also testified that he had knowledge of this
issue as far back as 2005 and that Leuch was working on the
matter prior to her layoff, but that he waited until “we had all
our ducks in a row” before making the request that she meet to
discuss it.24 He offered no explanation of why this took 2
years.
I credit Leuch’s testimony that Postill knew and approved all
of her billing of her hours to FPL.
2. Leuch paid both office staff and temporary services
for 16-hour shifts, without authorization.
Because, as described earlier, Postill’s testimony on this was
unreliable, I credit Leuch’s testimony that she never authorized
employees to work without his approval.
3. Leuch set up a Vonage account that provided free
Internet use at her residence and continued to use it after
her layoff, at SPE expense.
When SPE had a temporary office (in a trailer) in Jackson,
Mississippi, it ordered Vonage phone service. Leuch used a
company credit card, which Postill had her cancel in November
2005, when the temporary office was closed. She received a
new company credit card, which was canceled around the time
of her layoff in December 2006.
Respondent’s contends that Vonage has continued to bill it
for the services and offered Respondent’s Exhibit 7 as evi-
dence. In part, it shows items billed to Postill’s credit card in
January, including a charge for Vonage. Both the documents
and Postill’s testimony reflect that one of the problems in stop-
ping service was that Leuch’s password was needed, but Re-
spondent offered no evidence that Postill or anyone else from
SPE ever asked her for it. Moreover, the temporary office was

22 GC Exh. 17.
23 Tr. 341; see also Tr. 340.
24 Tr. 60.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1192
closed back in 2005. I cannot, therefore, find credible Postill’s
assertion that he needed to meet with her to talk on the matter
in July.
I credit Leuch’s testimony that she did not take the Vonage
equipment with her and has never used it for free Internet ser-
vice.
4. Leuch made significant payments to subcontractors
beyond the pay-when-paid clauses in their contracts with
SPE.
Postill testified that during the reconciliation process with
FPL—on the dates of which he was conveniently vague—he
became aware that she prepaid subcontractors ahead of what
they were due under the pay-when-paid clause of their con-
tracts; i.e., before SPE was itself paid for the job. He testified
that such instances were raised to him in 2005 and 2006 but
that he was not aware of the scope of the problem (millions of
dollars) “until I actually rolled my hands up and got in-
volved.”25 He also testified that there were issues with “every
subcontractor” she paid.26 I note Satryb’s testimony that when
representatives of FPL and SPE met in May to reconcile their
billing differences, reconciliation attempts had already gone on
for a full year (or back to mid-2006).
I credit Leuch’s testimony that she made payments to sub-
contractors under Postill’s direction.
In sum, I discredit Postill’s highly implausible claims of ig-
norance of the scope of Leuch’s alleged malfeasance until
months after her December 2006 layoff, as well as his testi-
mony that she continued to “run” his office after he already
knew of major defects in her performance.
Analysis
The framework for analyzing alleged violations of Section
8(a)(3) is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
Wright Line, the General Counsel must make a prima facie
showing sufficient to support an inference that the employee’s
protected conduct motivated an employer’s adverse action. The
General Counsel must show, either by direct or circumstantial
evidence, that the employee engaged in protected conduct, the
employer knew or suspected the employee engaged in such
conduct, the employer harbored animus, and the employer took
action because of this animus.
Leuch was an alternate union steward, certainly protected ac-
tivity. However, apart from her testimony as a witness at the
August 8 and 9 trial, conduct that comes under Section 8(a)(4),
the record is devoid of evidence of what she did in that role, or
otherwise in the way of union activities. There is no direct
evidence of animus against her because she served as an alter-
nate steward, nor can such be implied. Thus, Satryb recom-
mended that Leuch be discharged in December 2006, but Pos-
till instead lawfully laid her off, along with other office em-
ployees. Credited testimony of Satryb and Leuch reflects that
the discharge was directly connected to her involvement in
NLRB proceedings, not to any severable union activities. I
therefore conclude that the General Counsel has not established

25 Tr. 74.
26 Id.
a prima facie case of unlawful termination under Section
8(a)(3).
A Wright Line approach is also used for analyzing alleged
violations of Section 8(a)(4) of the Act, and the remedy is the
same. Newcor Bay City Division, 351 NLRB 1034 fn. 4
(2007); All Pro Vending, Inc., 350 NLRB 503, 515 (2007).
Section 8(a)(4) prohibits adverse action against an employee
“who has filed charges or given testimony.” The provision is
broadly construed in order “to prevent the Board’s channels of
information from being dried up by employer intimidation of
prospective complainants and witnesses.’” NLRB v. Scrivener,
405 U.S. 117, 122 (1972), quoting John Hancock Mutual Life
Insurance v. NLRB, 191 F.2d 483, 485 (D.C. Cir. 1951). See
also Nash v. Florida Industrial Commission, 389 U.S. 235, 238
(1967); Metro Networks, Inc., 336 NLRB 63, 66 (2001).
Thus, its protection extends to employees such as Leuch on
whose behalf charges were filed (Climatrol, Inc., 329 NLRB
946 (1999)), and to employees who plan to testify at NLRB
trials. Lamar Advertising of Hartford, 343 NLRB 261 (2004).
In any event, Leuch’s activity of providing information to
NLRB investigators of ULP’s was conduct that brought her
under the provision’s coverage. See Operating Engineers Lo-
cal 39, 346 NLRB 336 (2006); Metro Networks, above at 63.
The element of knowledge is easily met. Leuch was named
in the earlier complaint and alleged therein to have been laid off
in violation of Section 8(a)(5). Further, she specifically men-
tioned her upcoming role as a witness at the NLRB trial in her
July 30 and August 6 telefaxes. Animus is demonstrated by
Satryb’s testimony that in late July, Postill stated that he proba-
bly would have to discharge Leuch to stop backpay, and
Leuch’s testimony that on August 16, Postill stated that SPE’s
attorneys had directed that Leuch be terminated because of the
August 8 (NLRB) trial.27 Respondent discharged her by letter
of August 7. Therefore, I conclude that the General Counsel
has satisfied all of the elements necessary to establish a prima
facie case of unlawful termination under Section 8(a)(4).
Under Wright Line, if the General Counsel establishes a
prima facie case of unlawful conduct, it meets its initial burden
to persuade, by a preponderance of the evidence, that protected
activity was a motivating factor in the employer’s action. The
burden of persuasion then shifts to the employer to show that it
would have taken the same adverse action even in the absence
of such activity. NLRB v. Transportation Management Corp.,
462 U.S. 393, 399−403 (1983); Kamtech, Inc. v. NLRB, 314
F.3d 800, 811 (6th Cir. 2002); SFO Good-Nite Inn, LLC, 352
NLRB 268, 269 (2008); Serrano Painting, 332 NLRB 1363,
1366 (2000).
If the employer’s proffered defenses are found a pretext, i.e.,
the reasons given for the employer’s actions are either false or
not in fact relied on, the employer fails by definition to show
that it would have taken the same action for those reasons, and
there is no need to perform the second part of the Wright Line
analysis. SFO Good-Nite Inn, LLC, supra. On the other hand,

27 The discharge of an employee to curtail her backpay remedy in the
event that her layoff is found unlawful by the Board constitutes a form
of retaliation that punishes her for pursuing her right to seek redress
under the Act, and clearly violates Sec. 8(a)(4).
SPE UTILITY CONTRACTORS, LLC 1193
further analysis is required if the defense is one of “dual moti-
vation,” i.e., the employer defends that, even if an invalid rea-
son might have played some part in the employer’s motivation,
the employer would have taken the same action against the
employee for permissible reasons. Palace Sports & Entertain-
ment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
I conclude that Respondent’s defense was a pretext, based on
the following. Statements that Postill made to Leuch and Sa-
tryb demonstrate that the real reason for her discharge related to
her being a subject of charges that were to be litigated at an
upcoming NLRB trial, more specifically, to limit her backpay
in the event that her layoff was found unlawful under the Act.
The timing of her discharge was also very suspicious. In this
regard, almost all of the major issues that Respondent contends
required further information from Leuch occurred during the
2005 hurricanes or before, management admittedly had knowl-
edge of the existence of at least most of them by 2006 and be-
fore Leuch was laid off in December 2006, and Postill even
discussed at least some of them with her prior to her layoff.
Respondent offered no good explanation of why, suddenly right
before the scheduled NLRB hearing, it was so urgent to have
Leuch come in to provide information and/or explanations.
Nor did Respondent explain why it offered her no alternative
dates and times but, in each of its requests, presented her with
only one specific meeting time. In both of her replies, Leuch
stated that she could not make the proposed date and time be-
cause of trial preparation for the August 8 hearing.
Accordingly, I conclude that Respondent violated Section
8(a)(4) and (1) by discharging Leuch on August 7, 2007, be-
cause of her status as a potential recipient of backpay under the
Act and as a witness in support of charges that the Union had
filed against it.
Postill’s statement to Leuch about her being discharged to
limit her financial remedy under the Act constituted an inde-
pendent 8(a)(1) violation, in my view, but it was not alleged in
the complaint and, in any event, is essentially encompassed in
the subject of the discharge itself.
REMEDY
Because I have 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 effectu-
ate the policies of the Act.
Since the Board determined that Leuch’s prior layoff was not
unlawful, reinstatement and backpay remedies are not germane.
ORDER
The Respondent, SPE Utility Contractors, LLC, Port Huron,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining employees because
they are potential recipients of backpay under the Act and/or
are witnesses scheduled to testify in unfair labor practice trials,
or because they otherwise participate in National Labor Rela-
tions Board proceedings.
(b) 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, re-
move from its files any references to the August 7, 2007 dis-
charge of Linda Leuch and, within 3 days thereafter, notify her
in writing that this has been done and that the discharge will not
be used in any way against her in the event of a recall.
(b) Within 14 days after service by the Region, post at its fa-
cility at Port Huron, Michigan, copies of the attached notice
marked “Appendix A.”28 Copies of the notice, on forms pro-
vided by the Regional Director for Region 7 after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees 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 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 August 7, 2007.
(c) Within 21 days after service by the Region, file with the
Regional Director for Region 7 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discipline you because
you are potential recipients of backpay under the Act and/or are
witnesses scheduled to testify in unfair labor practice trials, or

28 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1194
otherwise participate in National Labor Relations Board pro-
ceedings.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Sec-
tion 7 of the Act, as set forth at the top of this notice.
WE WILL remove from our files any reference to the unlawful
discharge of Linda Leuch, and WE WILL, within 3 days thereaf-
ter notify her in writing that this has been done and that the
discharge will not be used against her in any way in the event
of a recall.
SPE UTILITY CONTRACTORS, LLC