Wayne Electric, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 25, 2007

16-CB-007421 (N.L.R.B. Sep. 25, 2007)

JD(ATL)-27-07
Houston, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 716
(Wayne Electric, Inc.)
and Case 16-CB-7421
JEFF CLARK, an Individual
and Case 16-CB-7474
ARNOLD GUARDIOLA, an Individual
and Case 16-CB-7477
DALE DRAY, an Individual
Jamal M. Allen, Esq. for the General Counsel.
Patrick M. Flynn, Esq., of Houston, TX,
for the Respondent.
DECISION
Statement of the Case
JOHN H. WEST, Administrative Law Judge. This case was tried in Houston, Texas on
August 2, 2007. The charges in 16-CB-7421, 16-CB-7474 and 16-CB-7477 were filed,
respectively, on February 12, May 15, and May 17, 20071 by Jeff Clark, Arnold Guardiola, and
Dale Dray, respectively. As here pertinent, a consolidated complaint (complaint) was issued on
July 19. The complaint alleges that International Brotherhood of Electrical Workers, Local 716
(Union or Respondent) violated Section 8(b)(1)(A) of the National Labor Relations Act, as
amended (Act) by (a) on or about January 18 imposed a fine on employee Guardiola, (b) on or
about January 20 imposed a fine on employee Clark, (c) on or about March 23 expelled
Guardiola, (d) on or about January 9, 11, and 17 failed to accept a valid union resignation from
employee Dray, and (e) on or about April 26 expelled Dray because the Respondent became
aware that the involved employees resigned membership and accepted work with a nonunion
employer. It is alleged that the conduct was engaged in notwithstanding that the involved
employees had previously tendered to the Union valid membership resignations and were not
members of the Union; and that the Union engaged in the conduct described above in (d) to
preclude Dray from resigning union membership and accepting work with a nonunion employer.
Respondent denies violating the Act as alleged.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by General Counsel and the Union, I make the following

1 All dates are in 2007 unless otherwise indicated.
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Findings of Fact
I. Jurisdiction
Wayne Electric, Inc. (Employer or Wayne), a Texas Corporation with a facility in
Houston, has been engaged in the business of commercial and industrial electrical service
installation. The complaint alleges, it is admitted, and I find that during the 12 months before the
complaint was issued the Employer purchased and received at its Houston facility goods valued
in excess of $50,000 from other enterprises, including Consolidated Electric Distributors,
Wholesale Electric, and Hughes Supply, located within the State of Texas, each of which other
enterprises had received these goods directly from points outside the State of Texas; and that at
all material times, the Employer has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It is admitted, and I find that the Union is a labor
organization within the meaning of Section 2(5) if the Act.
II. Alleged Unfair Labor Practices
Jeffrey Clark testified that he worked for Wayne for 9.5 years, and the last position he
held with that Company was foreman; that he was in the Union for 19.5 years; that General
Counsel's Exhibit 2 is the letter of resignation which he tendered to Wayne, faxing a copy to
Wayne's office and hand delivering a copy to Wayne's Vice President, Mike Pesl2; that Pesl
read the letter and asked him where he was going; that on December 5, 2006 he mailed a letter,
General Counsel's Exhibit 3, to John Easton, Jr. who is Local 716's Business Manager,
informing him that he, Clark, was resigning his membership effective December 9, 20063; that
the attachment to the letter is the certified return receipt requested card which indicates that
Dora Moline, who is the secretary at Local 716 who handled most of Easton's work, signed for
receipt of the letter; that he telephoned Local 716's Union hall on December 7, 2006, could not
reach Easton, and was told by Assistant Business Manager Bob Priest that the letter was sitting
on Easton's desk; that he went to work at Power Design, Inc. (Power) as a site project manager;
that General Counsel's Exhibit 4 is a "VERIFICATION OF CONDITIONAL JOB OFFER" from
Power dated "12-10-06"; that he actually signed the document on Monday December 11, 2006
in Florida but he mistakenly put the 10th on the form because the date on his watch was wrong;
that General Counsel's Exhibit 5 is the Form W-4 (2006) that Power gave him to fill out and sign
when he was in Florida; that he also placed the wrong date on this form for the same reason;
that he officially started working for Power on December 11, 2006; and that the first jobsite that
he worked on for Power was the Park 8 on the Beltway between Bellaire and Bissonnet in
Houston.
By letter dated December 21, 2006, Joint Exhibit 1, the Union advised Jeffrey Clark as
follows:
Please be advised you are hereby notified to appear before the Trial Board of
I.B.E.W., Local Union #716, meeting at 1475 North Loop West, Houston, Texas on
Wednesday, January 17, 2007 at 5:00 p.m., to answer charges filed against you by John
E. Easton, Jr. for an alleged violation of Article 19, Section 5 of the Local Union 716

2 The letter is dated "11/30/06" and it indicates that December 8, 2006 will be Jeffrey Clark's
last day of employment at Wayne.
3 The letter is dated "12/4/2006" and it reads as follows: "This letter is to inform you that I am
resigning my membership in the I.B.E.W. and Local 716 effective December 9th 2006. Please
forward this information to any and all persons concerned."
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Bylaws; and Article XXV, Section 1, Subsections (a), (e) and (q) of the IBEW
Constitution.
Enclosed is a copy of the original charge filed against you. You may bring
witnesses to give evidence in your behalf. You will be afforded the opportunity at the
hearing to present any relevant evidence and to cross-examine any witnesses you may
desire. You may, if you desire, have an I.B.E.W. member act as your counsel.
[Emphasis in original]
The attached Union charge by Easton alleges that the violation of the Union's Bylaws and
Constitution occurred on December 6, 2006 at approximately 2:30 p.m. at McGregor and
Almeda and involved "working for a nonunion contractor." The cited subsections of the
Constitution read as follows:
Sec.1. Any member may be penalized for committing any one or more of the
following offenses:
(a) Violation of any provision of this Constitution and the rules herein, or the bylaws,
working agreements, or rules of a L.U. [Local Union]
….
(e) Engaging in any act or acts which are contrary to the member's responsibility
toward the I.B.E.W., or any of its L.U.'s, as an institution, or which interfere with the
performance by the I.B.E.W. or a L.U. with its legal or contractual obligations.
….
(q) Working for any individual or company declared in difficulty with a L.U. or the
I.B.E.W., in accordance with this Constitution.
Jeffrey Clark testified that he received Joint Exhibit 1, the Union letter with its
attachment; that on the afternoon of December 6, 2006 he was working for Wayne at the
Methodist Outpatient Center until the usual quitting time at 3 p.m. when he took the employees
in the Company truck over to Wayne's field office, turned in the keys, and discussed the job with
Dray, who was the individual who was taking over his position, and with his supervisor; that he
stayed at the field office for 10 to 15 minutes; that then he headed home, stopping on the way to
talk to his brother, Greg Clark, who was working at the Mosaic job site at McGregor and
Almeda; that he spoke with his brother about family matters at that jobsite for 15 to 20 minutes;
that he did not conduct any work on December 6, 2006 for Power or any other non-signatory
contractor; that on January 9 he mailed a response to the Union charges, General Counsel's
Exhibit 6; that the response letter with attachments was sent by certified mail return receipt
requested to the Union4; that the last day he worked for Wayne was December 8, 2006, and his
last pay stub from Wayne shows that he worked 40.5 hours his last week; that he did not attend
the Executive Board meeting regarding the charges against him by Easton because he had

4 The envelope was addressed as follows:
I.B.E.W. Local Union 716
1475 North Loop West
Houston, Tx. 77008
Attn: John E. Easton, Jr.
The envelope also has Jeff Clark's name and return address on the upper right hand corner.
It is stamped "UNCLAIMED." The exhibit includes Jeffrey Clark's last pay stub from Wayne, the
original letter of resignation which he mailed to the Union with a copy of the receipt for the letter
signed by Moline, a letter from Power indicating that he started working for that Company on
December 11, 2006, and an unsigned certified return receipt for the his response letter.
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already resigned from the Union and he did not believe that he had standing to appear before
the board because he was no longer a member of the Union; that he became aware that the
Union had refused delivery of his response letter when it showed up in his mailbox in late
February or early March 2007; and that the mailing address on the envelope he used for his
response letter is exactly the same as the address he placed on his resignation letter.
On cross-examination Jeffery Clark testified that his brother Greg Clark works for Power
at the Mosaic Condominium jobsite at Almeda and McGregor; that he started on the Beltway job
for Power on December 13, 2006; that he left Wayne because with the new collective
bargaining agreement "[w]e didn't get hardly any money on our contract [and] … [he] had stuck
with it as long as … [he] could, decided … [he] had enough" (transcript page 31); that while he
was making about $23 an hour5 at Wayne, the Company had not given him a raise and the new
collective bargaining agreement did not have "any significant money on it" (transcript page 32);
that in mid-November 2006 he gave his resume to his brother Greg to submit to Power6; that
Asia Cameron from Power's human resources department contacted him in late November and
she sent him information describing Power's pay and benefits; that his brother Greg gave him
the airline tickets for his trip to Florida when he met him at the airport on Sunday December 10,
2006; that his brother Greg went with him to Florida so that his brother could attend a project
managers meeting on December 11, 2006; that he did not fill out an application for Power
before December 10, 2006, and the only conversation he had with a representative of Power
was with Cameron when she told him what the job would entail, the pay, and the benefits; that
his brother Greg worked for Wayne before going with Power; and that he signed (in 1989)
Respondent's Exhibit 1, which indicates that he agrees "to conform to and abide by the
Constitution and laws of the I.B.E.W. and its Local Unions. I will further the purposes for which
the I.B.E.W. is instituted. I will bear true allegiance to it and will not sacrifice its interest in any
manner."
On redirect Jeffrey Clark testified that he was interviewed at Power in Florida on Monday
December 11, 2006; and that he accepted a job offer from Power on the afternoon of December
11, 2006.
Easton testified that regularly at Union meetings he would state that if a member felt that
he needed to work for a non-signatory contractor, the organizing department of Local 716
would help them get that job; that the three Charging Parties did not contact Local 716's
organizing department before they went to work for Power; that other members of Local 716 left
Wayne for Power prior to the three Charging Parties, namely Greg Clark and Jim Michna; that
the Union filed internal charges against Greg Clark and Michna, and they neither resigned from
the Union nor did they file charges with the National Labor Relations Board (Board); that the
Recording Secretary reads charges, which are placed in his mailbox, at the following regular
union meeting, which is held the first Wednesday of every month; that the charge is then sent to
the Trail Board of Local 716 to decide on a date for the trial, and then a letter is sent to the
charged party; that none of the three Charging Parties in this proceeding showed up for their
internal union trials; that he filed the charge against Jeffrey Clark after a member informed him
that Jeffrey Clark had accepted a nonunion job; and that Respondent's Exhibit 4 is the
International Brotherhood of Electrical Workers constitution, and while it is the new one, there
are no language changes in it regarding the involved articles from the prior constitution which

5 Jeffrey Clark testified that he earned 5 percent over scale as a foreman and, as indicated
on page two of General Counsel's Exhibit 6, his pay as foreman was $24.89 an hour.
6 He also sent his resume to his older brother in New York regarding a possible job in that
State with the nonunion Company his brother worked for.
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was in effect at the time the involved incidents occurred.
On cross-examination Easton testified that Article 25 of the constitution deals with
misconduct, offenses, and penalties; that it is a violation for a member to either apply for or
solicit work from a nonunion contractor; and that this situation is covered by the general catch all
rule in Article 25, Section 1, subsection (e); that Article 25, Section 1, subsection (f) deals with
working for or on behalf of a contractor whose position is adverse or detrimental to the IBEW;
that Article 25, Section 1, subsection (q) states "working for any individual or company declared
in difficulty with a local union or the IBEW in accordance with this constitution" (transcript page
114); that the difference between Article 25, Section 1, subsection (f) and (q) is that only one
includes other unions; that specific language that prohibits a member from soliciting or applying
for work for a nonunion employer is found in Article 25, Section 1, subsection (e), which is set
forth above; that there is no specific language in the constitution that states that it is a violation
for a member to apply for work with a nonunion employer; that when he was referring to getting
a job with a nonunion contractor he was referring to organizing activities on behalf of Local 716;
that he cited the three Charging Parties for accepting work with a nonunion employer; that in
each of the involved internal union charges he filed he did not write accepting or soliciting work
with a nonunion employer but in each instance he wrote working for a nonunion or nonsignatory
contractor; that when the internal union charge was brought against Greg Clark he had not even
attempted to resign his membership in the Union when he was working for Power; that with
respect to one of the three Charging Parties, Wayne Smith of Wayne telephoned him to tell him
that he was losing an employee to Power but he, Easton, did not recall which of the three
Charging Parties was the subject of that telephone call; that a member notified him that Jeffrey
Clark had accepted a nonunion job; that individual union members who alleged misconduct on
the part of the Charging Parties could have filed the internal union charges themselves and they
are not required to have Easton file the charge; that there are no written rules requiring a
member to submit his resignation from the Union in writing; that he was sanctioning the three
Charging Parties because they had solicited and accepted a job with a nonsignatory contractor,
and this was the case even though the dates of the violations he alleged regarding Guardiola
and Dray were after they were already working for Power; that submitting an application to a
nonunion employer is a violation in his opinion; and that he recognizes that the three Charging
Parties have a right to resign from the Union if they so choose.
On or about December 21, 2006, the Union sent the same letter, Joint Exhibit 7, to
Guardiola that it sent to Clark, Joint Exhibit 1 described above, except that Guardiola's letter
does not allege a violation of Article 19, Section 5 of the Local Union 716 Bylaws, and the date
of Guardiola's meeting is January 16. The attached charge refers to a violation which allegedly
occurred on November 6, 2006 at McGregor and Almeda involving working for a nonunion
contractor.
Guardiola testified that he had been a member of the Union and worked for Wayne for
about 10 years or since May 1996; that when he left Wayne on November 2, 2006 he was a
service truck driver foreman; that he accepted a job with Power on October 12, 2006; that he
notified Wayne on October 23, 2006 that he would be leaving them in that he told his supervisor
Juan Hernandez that he was giving him 2 weeks notice and he had already accepted an offer
from another company; that Hernandez guessed that he was going to work for Power since
Hernandez knew Greg Clark, who left Wayne, was working for Power; that on November 1,
2006 while he was working for Wayne, Adrian Sauceda, who is an official at the Union and also
a high school friend, telephoned him during a break and told him that he wanted to meet with
him about leaving Wayne; that he agreed to meet Sauceda at the Union hall around 12:10 p.m.;
that Sauceda, in the Union hall lobby, told him that he was making a big mistake in leaving
Wayne and he told Sauceda that he had already accepted an offer; that he met with three union
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representatives in Easton's Union hall office, namely Easton, David Alley, who is President of he
Union, and Sauceda; that the meeting lasted 30 minutes and Easton did most of the talking; that
they discussed what it meant to be a member of the Union, his family, Power, and his pension;
that with respect to his family, Easton said that he should not leave Wayne, which had been
around for 30 years to move to a new company and take a chance; that Easton asked him if he
had done any research on the Power; that he told the Union representatives that he had already
made his mind up and he was leaving, he wanted out; that when he said that he wanted out he
was referring to the Union; that he told the Union representatives that he paid his dues out of his
credit union account, he had paid months in advance, and he should be reimbursed since he
quit the Union on November 1, 2006; that the three Union representatives did not respond to
this; that he is not aware of any rule requiring a membership resignation be in writing; that after
this meeting he went over to the credit union, which is a couple of buildings from the Union hall,
and told the credit union representative that he quit the Union and he wanted them to stop
taking the dues out of his credit union account; that he also asked the credit union
representative if he could get reimbursed for some of the dues paid and she told him that he
could but the money had already been taken out and it had already been paid; that his last day
with Wayne was November 2, 2006 and his first day with Power was November 6, 2006; that
with respect to Joint Exhibit 7, he was working for Power on November 6, 2006 but he did not
believe that he was still a member of the Union; that he sent a response, General Counsel's
Exhibit 13 dated January 4, to the charge, certified return receipt requested but he used his
wife's maiden name, Martha Porcayo, and his mother-in-law's address as the sender's name
and address since he had heard that letters were being rejected by the Union; and that as
indicated on the return receipt requested green card, Dora Moline at the Union hall signed for
the letter which was addressed to Easton, as indicated on page three of General Counsel's
Exhibit 13. Guardiola's January 4 letter to Easton reads as follows:
This letter is to notify you and the Trial Board of I.B.E.W., Local Union #716 that I
will not be attending the hearing in regards to my alleged violation of working for a
nonunion contractor, as stated in your letter to me dated December 21, 2006. Due to my
right to resign from union membership at any time and the fact that resignation was
given to I.B.E.W., Local Union #716 and Wayne Electric in advance, the charges filed
against me are unfounded.
On November 1, 2006, I received a phone call from Adrian Sauceda requesting a
meeting during lunch time in order to discuss my resignation previously given to Wayne
Electric, Inc. It was at this meeting on November 1, 2006, in which I gave my verbal
resignation to YOU, Adrian Sauceda, and David Alley.
Furthermore, under federal labor law and the state's Right to Work Law, I have
the right to resign from union membership at any time. Even so, the I.B.E.W., Local
Union # 716 is still trying to discipline me for my nonunion employment, even though it
no longer has authority over my post-resignation conduct.
On cross-examination Guardiola testified that he signed (in 1997) Respondent's Exhibit
3, which was his oath and obligation when he joined the Union. As noted above, it indicates that
he agrees "to conform to and abide by the Constitution and laws of the I.B.E.W. and its Local
Unions. I will further the purposes for which the I.B.E.W. is instituted. I will bear true allegiance
to it and will not sacrifice its interest in any manner." Guardiola further testified that he contacted
Greg Clark in early October 2006 about a job with Power; that Greg Clark told him to send him
his resume and he would forward it to Asia Cameron in Florida; that he accepted the offer to
work for Power on October 12, 2006; that he had not taken any action to notify the Union prior
to that date; that when Sauceda telephoned he did not tell him that he was leaving Wayne or
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resigning from the Union, and it was Sauceda who said that he heard that Guardiola was
leaving Wayne for Power; that he did not give Wayne a written resignation and he did not bring
any written resignation down to the Union hall with him; that his last day with Wayne was the
day after he met at the Union hall; that he started working for Power at its Houston Mosaic
jobsite on Almeda on the following Monday, November 6, 2006; that he mailed his response
letter to the Union on January 13 and the Union received it on January 16; that while the letter
indicates "CC: National Labor Relations Board; I.B.E.W. - Washington office," he did not send
these copies and he engaged in this tactic because he believed that it would stop Local 716
from sending "these letters." (transcript page 97)
On redirect Guardiola testified that he was not aware of any requirement that he notify
the Union that he had been contacted or he was contacting a nonunion employer about a
potential employment opportunity; that he intended to meet with someone at the Union hall on
his very last day of work with Wayne because he was working at Baylor College of Medicine,
which is a majority union job, and he did not want to start anything; and that he is not aware of
any requirement that his resignation had to be in writing.
Easton testified that he was told by a member - he could not recall who - that Guardiola
had accepted a job with a nonunion contractor, and he told Sauceda to contact Guardiola to
arrange a meeting; that during the meeting at the Union hall with Guardiola on November 1,
2006 Guardiola was informed that internal Union charges would have to be filed; that Guardiola
said that he understood that but he had to do what was best for his family; that he did not recall
whether during that meeting Guardiola ever said that he wanted to resign his membership from
the Local; and that Guardiola did not hand him any papers that said that he wanted to resign.
On cross-examination Easton testified that the meeting with Guardiola lasted 45
minutes; that they discussed Guardiola leaving Wayne; that he informed Guardiola that he
would bring internal union charges against him; that during this 45 minute meeting Guardiola
never made any statements requesting to resign from the Union; and that he believed that he
found out about Guardiola's alleged violation from Wayne Smith.
By separate letters dated January 18, Joint Exhibits 2 and 8, the Union advised Jeffrey
Clark and Guardiola, respectively, as here pertinent, that the Executive Board, sitting as a Trial
Board of Local Union 716, fined each one of them a total of $4,500.00 for violating Subsections
(a), (e) and (q) of Section 1 of Article XXV of the I.B.E.W. Constitution.
Jeffrey Clark testified that he received Joint Exhibit 2 in late January; that he did not
receive a telephone call about the charges before he received this letter; that it was his
understanding that he could resign his union membership in person or by letter; that he is not
aware of any rule prohibiting union members from accepting or submitting applications of
employment with a nonunion employer prior to resigning from the union; and that the only union
rule he knew was that a member could not work for a nonsignatory contractor.
Guardiola testified that prior to receiving Joint Exhibit 8 he was not contacted by
anybody from the Union with respect to these allegations; that he is not aware of any rule that
the Union has that requires a member to have submitted his resignation in writing; and that he
has never seen any rule from the Union that prohibits you from applying or accepting a job offer
from a nonunion employer while a member of the Union.
On or about February 8 the Union sent the same letter, Joint Exhibit 3, to Dray that it
sent to Clark, Joint Exhibit 1 described above, except that Dray's letter does not allege a
violation of Article 19, Section 5 of the Local Union 716 Bylaws, and the date of Dray's meeting
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is March 6. The attached charge refers to a violation which allegedly occurred on January 16 at
McGregor and Almeda involving working for a nonsignatory contractor.
Dray testified that he was a member of the Union for about 17 years; that he started in
the apprenticeship program in 1989 when he went to work for Wayne, and he stayed with
Wayne for 17 years; that he was a General Foreman when he left Wayne; that he accepted a
position with Power in early January 2007; that he notified Mike Pesl, the Vice President of
Wayne on the morning of January 8 that he would be leaving that Company; that he told Pesl
that he was going to work for Power; that later on the morning of January 8 he attempted to set
up a meeting with Easton by telephoning Easton's office at the Union hall and speaking to
Easton's secretary; that on January 8 he was not able to set up the meeting with Easton that
day and he did not tell Easton the purpose of the meeting; that he was able to meet with Easton
on January 9 at 4:30 p.m.; that he, Easton, Roger Foster, who is an organizer, and Alley were
present in Easton's office during the meeting; that the meeting lasted about 1 hour and Alley did
most of the talking; that when he told them that he was going to resign and he did not want to
give them the opportunity to "mess" with his pension, Alley said "Oh, you want your cake and
eat it, too" (transcript page 56); that he was told that he owed the Union in that all that he
earned came from the Union contractor Wayne; that at the end of the meeting he gave Easton a
document which indicated that he was resigning from the Union; that Easton read it, pushed it
back across the table, and said that he wasn't going to accept that; that he then said that he
would send it certified; that he sent a letter, General Counsel's Exhibit 7, on January 10 to the
Union indicating that effective January 8 he resigned from the Union; that as indicated by the
third page of General Counsel's Exhibit 7, which is the envelope, the mailing, addressed to
"IBEW LU. 716, 1475 NORTH LOOP WEST, HOUSTON TX. 77008, ATT: JOHN EASTON, JR."
was returned to sender because it was "Refused"7; that General Counsel's Exhibit 8 is the
United States Postal Service "Track and Confirm" printout that he obtained from the Internet,
which corroborates that Dray's January 10 letter was "Refused"; that he then contacted the
National Labor Relations Board (Board) and was advised that a verbal resignation was sufficient
but that he should attempt to send another registered mail letter to the Union; that he complied
with this advice mailing another resignation letter certified return receipt requested to the Union,
General Counsel's Exhibit 9, on January 188; that the January 18 letter to the Union was also
returned to him "Refused"; that that General Counsel's Exhibit 10 is the United States Postal
Service "Track and Confirm" printout that he obtained from the Internet, which corroborates that
Dray's January 18 letter was "Refused"; that his last day working for Wayne was January 19;
that General Counsel's Exhibit 11 is the "VERIFICATION OF CONDITIONAL JOB OFFER" he
filled out and signed for Power on "1-16-07"; that General Counsel's Exhibit 12 is the Form W-4
he filled out and signed for Power on "1-16-07"; that he began working for Power on January 24
on the Houston Mosaic job; that he received Joint Exhibit 3 in the mail; that the attached charge
alleges that he worked for a nonsignatory contractor on January 16 at 8 a.m.; that he was
working for Wayne on January 16 at 8 a.m.; and that Wayne did not have a jobsite at McGregor
and Almeda.
On cross-examination Dray testified that he received his electrical training through the
IBEW Local 716 sponsored apprenticeship program; that when this fact was brought up at the
meeting he had at the Union hall on January 9, he indicated that he had more than repaid his
debt to the Union; that he found out about Power from Greg Clark, whom he contacted at home
at the end of December 2006; that when he telephoned the Union hall on January 8 he spoke

7 The envelope has Dray's name and address on the upper left hand corner.
8 The envelope does not have Dray's name and address in the upper left hand corner but
the green return receipt attached to the envelope does have Dray's name and address.
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with a secretary and Easton, who told him that he was not available on January 8 but he was
available on January 9 at 4:30 p.m. and he definitely wanted to talk to him; that on January 8 he
did not tell Easton why he wanted to meet with him; that Pesl asked him if he was leaving
Wayne to work for Power; that while he figured that the resignation letter he gave to Easton on
January 9 would end up in the trash if he left it on the table, he is not sure that he did not leave it
on the table after Easton read it and pushed it back at him; that he did not send a copy of his
resignation letter to International Vice President Jonathan Gardner, as he indicated he would in
General Counsel's Exhibit 9, because he decided, after speaking with someone at the Board,
that there was no need for that; and that when he signed General Counsel's Exhibits 11 and 12
he was at his home, and Power had mailed these two documents to him.
Easton testified that he met with Dray on January 9; that he found out about Dray's
situation on January 8 from a member who notified the Union that Dray accepted a job with a
nonunion employer; that while he recalled meeting with Dray, he did not recall Dray saying
during that meeting that he wanted to resign his membership; that he did not recall Dray
"hav[ing] some piece of paper or hand[ing] you a resignation or leav…[ing] it there in the hall"
(transcript page 108); and that Dray did not say he was going to send him a certified letter,
nothing was discussed about resignation.
On cross-examination Easton testified that during his 30 - 45 minute meeting with Dray
there was no discussion at all regarding Dray resigning from the Union; that Dray just spoke
about resigning from Wayne; that they also discussed other things such as pension and training;
that a member contacted him to report this alleged violation; and that he did not recall the name
of the member who reported the alleged violation by Dray covered in Joint Exhibit 3.
By letter dated March 12, Joint Exhibit 4, the Union, as here pertinent, advised Dray as
follows: "Please be advised all charges filed against you by Brother John E. Easton, Jr. were
withdrawn by Brother Easton at the Trial Board meeting held on Tuesday, March 6, 2007."
By letter dated March 23, Joint Exhibit 5, the Union sent the same letter to Dray that it
sent to Clark, Joint Exhibit 1 described above, except that Dray's letter does not allege a
violation of Article 19, Section 5 of the Local Union 716 Bylaws, Subsections (f) and (j) are
added,9 and the date of Dray's meeting is April 18. The attached charge refers to a violation
which allegely occurred on February 19 at McGregor and Almeda involving working for a non-
signatory contractor.
Dray testified that it was his understanding that on February 19 he was not still a
member of the Union.
On cross-examination Easton testified and that he did not recall, regarding Joint Exhibit
5, who reported to him that there was a violation going on with respect to Dray; that his
evidence was that Dray had been seen at the nonunion jobsite at McGregor and Almeda; and

9 The two additional subsections read as follows:
(f) Working for, or on behalf of, any employer, employer-supported organization,
or other union, or the representatives of any of the foregoing, whose positions is adverse
or detrimental to the I.B.E.W.
….
(j) Making known the business of a L.U., directly or indirectly, to any employer,
employer-supported organization, or other union, or to the representatives of any of the
foregoing.
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that he also relied on the knowledge that, as here pertinent, Dray had accepted a job with a
nonunion contractor.
By letter dated March 23, Joint Exhibit 9, the Union advised Guardiola, as here pertinent,
that the Executive Board, sitting as a Trial Board of Local Union 716, expelled him for violating
Subsections (a), (e), (f), (j), and (q) of Section 1 of Article XXV of the I.B.E.W. Constitution.
Guardiola testified that prior to receiving Joint Exhibit 9 he was not contacted by
anybody from the Union with respect to these allegations.
By letter dated April 26, Joint Exhibit 6, the Union advised Dray, as here pertinent, that
the Executive Board, sitting as a Trial Board of Local Union 716, expelled him for violating
Subsections (a), (e), (f), (j), and (q) of Section 1 of Article XXV of the I.B.E.W. Constitution.
Dray testified that no one from the Union telephoned him or spoke to him before he
received Joint Exhibit 6; that he is not aware of any rule requiring that his membership
resignation must be in writing, and no one ever told him this; and that while it was his
understanding that he could be disciplined by the Union for applying for a job with a nonunion
employer, he never read any rule stating that a member could be sanctioned for applying for a
job.
On cross-examination Dray testified that he signed (in 1991) Respondent's Exhibit 2,
which indicates that he agrees "to conform to and abide by the Constitution and laws of the
I.B.E.W. and its Local Unions. I will further the purposes for which the I.B.E.W. is instituted. I will
bear true allegiance to it and will not sacrifice its interest in any manner."
On redirect Easton testified, with respect to the unclaimed or refused certified, return
receipt letters described above, that:
The only explanation I could have is I do have a policy that if it's addressed to my
name and I'm not available by phone or can be contacted, that they're not to accept it,
because it could start time lines as far as I've got 18 different contracts. It could establish
a time line, and I might not be back in town for another week and a half, and so,
therefore, that's why it's not accepted. [Transcript pages 129 and 130]
Easton further testified that he travels frequently to various points in the United States.
Analysis
Paragraphs 9(a), 10, and 11(a) of the complaint collectively allege that on or about
January 18 Respondent unlawfully imposed a fine on employee Guardiola after the Respondent
became aware that the employee resigned membership and accepted work with a nonunion
employer; and that Respondent engaged in this conduct even though Guardiola had previously
tendered to Respondent a valid membership resignation and was not a member of Respondent.
On brief Counsel for General Counsel contends that Guardiola resigned his union
membership prior to working for Power; that there is no rule requiring Guardiola to submit his
membership resignation in writing, citing Iron Workers Local 627 (National Steel), 298 NLRB 29
(1990) in which the Board held that without an established method for resignation, a member
may communicate to the union his intent to resign in any reasonable way so long as the intent
to resign is clearly conveyed; that Guardiola orally submitted his membership resignation to the
Union on November 1 during a meeting with Easton and two other Union officials, telling them
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that he had accepted employment with a nonunion employer, he wanted out, he quit, and he
wanted to be reimbursed for his prepaid union dues from the date of his resignation; that an oral
resignation is effective when delivered, and a fine applied after the effective resignation for
working for a nonunion company after the effective resignation is invalid, Machinists Local 758
(Menasco, Inc.), 275 NLRB 755, 759-760 (1985); that since he did not begin working for Power
until November 6, 2006, his November 1, 2006 resignation was effective prior to the date he
began working for Power; that retaliating against a former union member for resigning from the
union is a violation of Section 8(b)(1)(A) of the Act; that contrary to the assertions of Easton, the
involved employees were not disciplined for merely applying for work with a nonunion employer
prior to resigning their union membership, rather they were disciplined for their post-resignation
conduct of actually working for a nonunion contractor in view of (1) the nature of the violation
identified on the charges filed by Easton, namely working for a nonunion or a nonsignatory
contractor (There is no mention in the charges of applying for or accepting an employment offer
from a nonunion contractor.), (2) the date of the alleged incidents identified on the charges by
Easton (The dates of the alleged violation for Guardiola and Dray were after they had effectively
resigned from the Union and began working for Power.), (3) the plain meaning of the
constitutional provisions cited by Easton in the charges he filed against the employees, and (4)
the enforcement of a rule restricting employees from applying for work with nonunion firms is
contrary to the public policy underlying the Act since (a) Section 8(b)(1)(A) of the Act declares
that it shall be an unfair labor practice for a union to restrain or coerce employees in the
exercise of their rights guaranteed in Section 7, (b) Section 7 of the Act accords employees the
right to form, join or assist unions and the right to engage in concerted activities, and also the
right to refrain from any an all of such activities, and (c) the enforcement of a rule which
prohibits union members from giving consideration to non-union employment opportunities prior
to resigning their union membership places an undue burden on the employees' exercise of
their right to refrain from Section 7 activities; that the date of Guardiola's alleged violation is
November 6 while Guardiola resigned his Union membership on November 1 and actively
began working for Power on November 6; that it is 'nonsensical' for Easton to maintain that he
filed disciplinary charges against Guardiola for anything other that "working" for a nonunion
contractor as specified in the internal union charge Easton filed; that the involved Constitutional
provisions speak to a situation when a member is "working" for an employer with an interest
adverse to the Union; that the Union has a legitimate interest in prohibiting a member from
working for a nonunion company while retaining the benefits of unionization; that the
Constitution does not prohibit members from seeking employment with a nonunion company
and then resigning their membership prior to actually working for that nonunion company; that
none of the members involved herein sought to retain the benefits of their union membership
while working for Power; that Easton is not credible as his testimony was disputed by the
credible testimony of multiple witnesses, disputed by documentary evidence received herein,
and uncorroborated by admitted union agents with knowledge of key events; that an adverse
inference may be drawn regarding the Union's failure to call other union officials (Alley,
Sauceda, and Foster) to corroborate Easton's testimony on key disputed factual issues, Queen
of the Valley Hosp., 316 NLRB 721 (1995); and that such an inference is warranted in the
instant proceeding where the Union had notice well in advance of the trial that Alley and
Sauceda were relevant witnesses and it did not call them to corroborate Easton's testimony.
On brief Respondent argues that Easton credibly testified that Guardiola at no time
submitted a resignation, either in writing or orally; that even if Guardiola's testimony that he
orally resigned his union membership on November 2, 2006 is credited, Guardiola accepted an
offer from Power on October 12, 2006 and advised Wayne on October 23, 2006 that he was
leaving that Company; that seeking employment with a nonunion company and accepting an
offer with that company during the time he was member of the Union gives rise to a violation of
Article XXV, Sections 1(a) and (e) of the Constitution; and that if Guardiola resigned on
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November 2, 2006, the Order should only require rescission of that portion of the fine which
could be concluded was attributable to post-resignation conduct, as the alleged violations of
Article XXV, Section 1(a) and (e) are fully supported by the conduct in which Guardiola
admittedly engaged prior to November 2, 2006, Newspaper Guild, Local 3, 272 NLRB 338
(1984).
I do not find Easton to be a credible witness. The internal union charges he filed
contradict the positions he took while testifying at the trial herein. He lied under oath about
Guardiola's oral resignation to him and the two other union officials present at the above-
described meeting with Guardiola at the Union hall. Easton lied under oath about Dray's
January 9 written resignation which Dray gave to Easton at the Union hall with two other union
officials present. With respect to both of these meetings, the Respondent chose not to call the
other two other union officials present notwithstanding the fact that the testimony of Easton was
challenged by Guardiola and Dray. Counsel for General Counsel requests an adverse inference
to be drawn regarding the Union's failure to call the other union officials to corroborate Easton's
testimony on key disputed factual issues. In the circumstances of this case such an adverse
inference is warranted. When a party fails to call a witness who may reasonably be assumed to
be favorably disposed to the party, an adverse inference may be drawn regarding any factual
question on which the witness is likely to have knowledge. It may be inferred that the witness, if
called, would have testified adversely to the party on that issue. While an adverse inference is
unwarranted when both parties could have confidence in an available witness' objectivity, it is
warranted where the missing witnesses are officials of the Respondent. International Automated
Machines, 285 NLRB 1122 (1987).
It has been demonstrated that Respondent violated the Act as alleged in paragraphs
9(a), 10, and 11(a) of the complaint. I find Guardiola to be a credible witness. I credit his
testimony that on November 1, 2006, while he met with Easton, Alley, and Sauceda at the
Union hall, he told them that he had already made his mind up and he was leaving, he wanted
out, he paid his dues out of his credit union account, he had paid months in advance, and he
should be reimbursed since he quit the Union on November 1, 2006. As pointed out by Counsel
for General Counsel on brief, without an established method for resignation, a member may
communicate to the union his intent to resign in any reasonable way so long as the intent to
resign is clearly conveyed. Here, the intent was clearly conveyed. Guardiola resigned from the
Union on November 1, 2006, well before he began working for Power on November 6, 2006.
Easton's internal union charge refers to Guardiola working for a nonunion contractor on
November 6, 2006. The Union knew that Guardiola resigned from the Union before he began
working for Power. There was no basis in fact for Easton's internal union charge against
Guardiola. The fine that was imposed on Guardiola was unlawful. It violated Section 8(b)(1)(A)
of the Act.
Paragraphs 9(b), 10, and 11(a) of the complaint collectively allege that on or about
January 20 Respondent unlawfully imposed a fine on employee Jeff Clark after the Respondent
became aware that the employee resigned membership and accepted work with a nonunion
employer; and that Respondent engaged in this conduct even though Jeff Clark had previously
tendered to Respondent a valid membership resignation and was not a member of Respondent.
On brief Counsel for General Counsel contends that Jeff Clark resigned his union
membership prior to working for Power; and that Jeff Clark submitted his resignation in writing
via certified mail on December 5, 2006 specifying the effective date of his resignation as
December 9, 2006, which was 2 days prior to the date he began working for Power.
On brief Respondent argues that although the employment acceptance document
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(General Counsel's Exhibit 4) post-dates his December 9, 2006 resignation of membership in
the Union, the facts make it clear that Jeffrey Clark solicited and "accepted nonunion
employment prior to his request to resign from Union membership" (Respondent's brief page 9
with emphasis in original); that "[s]olicitation and acceptance of work with a nonunion contractor
constitutes a frontal attack on … [one of the purposes of its Constitution, namely to organize all
workers in the entire electrical industry in the United States and Canada] and, therefore, violate
the first prong of Article XXV, Section 1(e)" (Id. at page 10); that Jeffrey Clark's actions
interfered with the performance by the Union of its contractual obligations to provide Wayne with
a highly qualified and stable work force; that since the charge against Jeffrey Clark refers to his
conduct on December 6, 2006 and Jeffrey Clark's resignation was not effective until December
9, 2006, the charge made no effort to penalize Clark for his post resignation conduct; that a
union needs only to show some evidence to justify discipline; and that Respondent had some
evidence in support of its allegation in that Jeffrey Clark resigned from Wayne and he was at the
Mosiac jobsite of Power on December 6, 2006.
First, contrary to Respondent's assertion on brief, Jeffrey Clark did not accept an offer to
work for Power "prior to his request to resign from Union membership." One cannot accept an
offer before it is made. Power made the offer on December 11, 2006. Jeffrey Clark accepted the
offer after it was made on December 11, 2006. Jeffrey Clark resigned his Union membership
effective December 9, 2006. Consequently, Jeffery Clark did not accept an offer to work for
Power "prior to his request to resign from Union membership." Second, Jeffrey Clark did not
accept "work" with Power until after he resigned his union membership. Indeed, Jeffery Clark
did not even accept an offer to work for Power until after he resigned his union membership.
Third, while Easton's charge refers to Jeffrey Clark's conduct on December 6, 2006, Easton's
testimony that he filled out the form on December 6, 2006, must be viewed in light of the fact
that Easton is not a credible witness. Also it is noted that the charge form did not, at that time,
have a line for the date when the charge was drafted. As demonstrated by General Counsel's
Exhibit 5, the form, which was updated "02/08/2007," has a line at the top of the form for the
"Date." Like the prior form, it also has a line for the date of the violation. And finally, it is noted
that the Union refused the acceptance of Jeffery Clark's certified, return receipt requested letter
which explained and documented that he was working for Wayne on December 6, 2006.
From a common sense standpoint, the fact that Jeffery Clark, while still on the payroll of
Wayne, made an after Wayne work hours visit to a Power's jobsite where his brother was
working is not evidence which would warrant, in the mind of a reasonable person without an
agenda, internal union charges and discipline. And when one considers the fact that the Union
denied Jeffrey Clark the right to explain his conduct by refusing to accept his certified, return
receipt requested letter, it can only be concluded that the Union did not act in a reasonable
manner.10 Easton had an agenda, and he carried it out. While the totally innocent conduct
Easton cited in his charge occurred before Jeffery Clark's resignation from the Union was
effective, Jeffrey Clark was punished by the Union for his post resignation conduct, namely

10 Easton is not a credible witness. The Union did not call anyone who would have been in
the position to refuse acceptance of a certified, return receipt requested letter pursuant to the
instructions of Easton to corroborate Easton's testimony. Additionally, while Easton testified in
general about having to travel, no attempt was made to corroborate Easton's testimony with
documents showing that he was not in Houston when the letters were refused. Surely, the
Union reimburses Easton for travel on its behalf. Surely there are Union records of his
expenditures during his travels for the Union. Such records would give the dates of his travel.
Easton's testimony, unless corroborated by a reliable witness or reliable documentation, is not
credited.
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going to work for Power, which did not occur until after Jeffery Clark's resignation from the
Union was effective. The Respondent violated the Act as alleged in paragraphs 9(b), 10, and
11(a) of the complaint.
Paragraphs 9(c), 10, and 11(a) of the complaint collectively allege that on or about
March 23 Respondent unlawfully expelled employee Guardiola after the Respondent became
aware that the employee resigned membership and accepted work with a nonunion employer;
and that Respondent engaged in this conduct even though Guardiola had previously tendered
to Respondent a valid membership resignation and was not a member of Respondent.
In view of the finding above that Respondent unlawfully fined Guardiola, it logically
follows that when the Respondent expelled Guardiola for the same false reason it again acted
unlawfully. Respondent violated the Act as alleged in paragraphs 9(c), 10, and 11(a) of the
complaint.
Paragraphs 9(d) and 11(b) of the complaint alleges that on or about January 9, 11, and
17 Respondent unlawfully failed to accept a valid union resignation from Dray; and that
Respondent engaged in this conduct to preclude employee Dray from resigning union
membership and accepting work with a nonunion employer.
On brief Counsel for General Counsel contends that Dray submitted his resignation
personally on December 9, 2006 and then via certified mail on January 10 and 18; that although
Easton attempted to thwart Dray's resignation efforts on January 9 by returning Dray's
resignation letter to Dray after he, Easton, read it, the Board, in Pattern Makers (Michigan Model
Mfrs.), 310 NLRB 929, 930 (1993), held that "[w]hen a member personally serves an agent at
the member's work place, as well as at the union hall, with a notification of resignation, the
resignation shall be effective upon receipt"; that in his January 10 and 18 certified letters to
Easton, Dray reiterated his request to resign his membership and chronicled his prior attempts
to personally hand deliver his resignation to Easton on December 9, 2006; that Easton's refusal
to accept delivery of Dray's certified letters of January 10 and 18 was a continuation of Easton's
effort to undermine the effectiveness of Dray's resignation; and that the two mailed resignations
were effective upon their deposit in the mail, Pattern Makers, supra.
On brief Respondent argues that the written resignation which Dray testified he passed
to Easton on January 9 for his signature, and which Easton passed back to him after reading it
was not produced at trial; that Easton credibly testified that no Dray written resignation was
shown or offered to him on January 9 by Dray; that Easton further testified that Dray made no
oral request to resign in that meeting; that with respect to Dray's two refused certified, return
receipt requested letters, contrary to the complaint allegation, it was not possible for the refusal
to accept valid resignations from Dray "to preclude employee Dray from … accepting work with
a nonunion employer" in that Dray had already accepted work from Power on January 3; that
while it is possible to argue that the refusal could have constituted an effort to preclude Dray
from resigning his Union membership, there was no indication on the envelopes that they
contained resignations; that Easton testified that the mail was refused because, as Business
Manager, he travels extensively and cannot be responsible for time-sensitive mail sent to him
personally during his absences from the office; and that since the evidence fails to establish that
Respondent's failure to accept General Counsel's Exhibits 7 and 9 was for the two
discriminatory reasons alleged, this allegation should be dismissed.
Contrary to Respondent's assertion on brief that Dray already accepted work from Power
on January 3, Dray did not sign his "VERIFICATIOIN OF CONDITIONAL JOB OFFER" and
Form W-4 for Power until January 16 and he did not report for work at Power's Mosiac jobsite
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until January 24. Easton is not a credible witness. I do not credit his testimony regarding what
happened at the meeting in the Union hall on January 9 with Dray. Additionally, I grant the
request of Counsel for General Counsel for an adverse inference regarding the Union's failure
to call the other two union officials who were present at the January 9 Union hall meeting with
Dray. I credit the testimony of Dray. Dray testified that when he told the three Union officials who
were present at the January 9 meeting at the Union hall that he was going to resign and he did
not want to give them the opportunity to "mess" with his pension, Alley said "Oh, you want your
cake and eat it, too" (transcript page 56). Alley did not testify and, therefore, he did not deny
making this statement. Dray also testified that at the end of the meeting he gave Easton a
document which indicated that he was resigning from the Union, Easton read it, pushed it back
across the table, and said that he wasn't going to accept that. And Dray testified that he then
told Easton that he, Dray, would send his written resignation certified.
As pointed out by the Board in Pattern Makers (Michigan Model Mfrs.), supra at 930,
When the member personally serves an agent of the labor organization, including the
business agent at the member's work place, as well as at the union hall, with a
notification of resignation, the resignation shall be effective upon receipt. When service
of the resignation is by mail, the effective time and date of the resignation shall be 12:01
a.m. local time on the day following the deposit in the mail. The day regarded as the date
of deposit shall be determined by postmark. This shall apply to all methods of mail
delivery, including but not limited to regular mail, certified mail, registered mail, and
special delivery.
Here Dray on January 9 gave the Union both oral and written notification of his resignation from
the Union. Here Dray on January 9 placed Easton on notice that since Easton would not accept
his written resignation tendered to and read by Easton on January 9, Dray was going to send
the written resignation to the Union by certified mail. That is exactly what Dray did. And again
Easton refused to accept the written resignation that was sent by certified letters, return receipt
requested. As noted above, I do not find Easton to be a credible witness. I do not credit
Easton's testimony about why certified, return receipt letters were refused. Respondent violated
the Act as alleged in paragraphs 9(d) and 11(b) of the complaint.
Paragraphs 9(e), 10, and 11(a) of the complaint collectively allege that on or about April
26 Respondent unlawfully expelled employee Dray after the Respondent became aware that the
employee resigned membership and accepted work with a nonunion employer; and that
Respondent engaged in this conduct even though Dray had previously tendered to Respondent
a valid membership resignation and was not a member of Respondent.
On brief Counsel for General Counsel contends that Dray resigned his union
membership on January 9, 10 and 18 and, therefore, his resignation was effective prior to being
hired by Power on January 22 (Dray signed the "VERIFICATION OF CONDITIONAL JOB
OFFER," General Counsel's Exhibit 11 on January 16 and he filled out and signed a Form W-4
for Power on January 16, General Counsel's Exhibit 12.) and beginning work on Power's Mosiac
jobsite on January 24; that for the reasons described above, the assertion by Easton that the
employees were disciplined for applying or accepting a job with a nonunion company vis-à-vis
for working for a nonunion contractor is belied by Easton's own internal union charges against
the involved employees; that while Easton charged that Dray committed the violation on
February 19, Dray resigned his membership on January 9 and began working for Power on
January 24; that in view of Easton's charge it is simply not credible for the Union to argue that
the disciplinary action was targeted toward Dray's pre-resignation conduct; and that rather the
record establishes that Easton clearly sought to punish Dray for his post-resignation conduct.
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On brief Respondent argues that even if it is assumed that Dray effectively resigned
from Respondent on January 9, Counsel for General Counsel has failed to demonstrate that a
part of the charge against him relates in any way to Dray's conduct after January 9 (Easton's
charge, page 2 of Joint Exhibit 5, refers only to conduct which occurred on "February 19, 2007
FEB.19, 2007."); that since Dray never effectively resigned, the charges against him were
permissible; that Dray chose to send his letters addressed personally to the Local's top official,
a men who does not normally handle such matters and who travels extensively, does not
establish that the effort was effective; and that Counsel for General Counsel has failed to
demonstrate that any of the internal union charges against Dray impermissibly penalized him for
conduct in which he engaged after he allegedly resigned his Union membership.
Contrary to Respondent's assertion on brief, Dray's two refused letters were not sent to
Easton personally. The addressee on both was "IBEW L.U. 716." It is noted that below the
address "ATT: JOHN EASTON, JR." appears. This hardly constitutes mail sent to him
personally. As found above, Dray resigned his union membership both orally and in writing on
January 9 during his meeting with Easton and two other union officials at the Union hall. That
resignation was reiterated in Dray's two subsequent certified, return receipt requested letters
which Respondent refused to accept because Dray placed the union officials on notice that
since Easton did not accept his written resignation on January 9 Dray would send it to the Union
by certified letter. The charge which allegedly resulted in Dray's expulsion from the Union refers
to Dray's conduct on February 19, well over a month after Dray resigned from the Union. It has
been demonstrated that Respondent violated the Act as alleged in paragraphs 9(e), 10, and
11(a) of the complaint.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Counsel for General Counsel requests that since all of the involved discipline seeks to
retaliate against employees for conduct they engaged in after the effective date of their union
membership resignations, Respondent should post an appropriate notice regarding its unfair
labor practices, rescind all of the disciplinary fines and expulsions levied against the involved
employees, restore all privileges and benefits affected by the discipline, and notify the
employees in writing when it has done so. This request is reasonable and should be granted.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
The Respondent, International Brotherhood of Electrical Workers, Local 716, of Houston,
Texas, its officers, agents, and representatives, shall

11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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1. Cease and desist from
(a) Unlawfully imposing fines on employees after the Respondent became aware that
the employees resigned membership and accepted work with a nonunion employer, and even
though the employees had previously tendered to Respondent a valid membership resignation
and were not a member of Respondent.
(b) Unlawfully expelling employees after the Respondent became aware that the
employees resigned membership and accepted work with a nonunion employer, and even
though the employees had previously tendered to Respondent a valid membership resignation
and were not a member of Respondent.
(c) Unlawfully failing to accept a valid union resignation from an employee so as to
preclude the employee from resigning union membership and accepting work with a nonunion
employer.
(d) In any like or related manner restraining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
(2) Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this of this Order, rescind all of the disciplinary fines
and expulsions levied against the involved employees, restore all privileges and benefits
affected by the discipline, and within 3 days thereafter notify Jeff Clark, Arnold Guardiola, and
Dale Dray in writing that it has done so and that it will not use the unlawful disciplinary action
against them in any way.
(b) Within 14 days after service by the Region, post at its union hall in Houston, Texas,
copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by
the Regional Director for Region 16, 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 employees and members 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 members and former employees and members
who had been members at any time since January 9, 2007.
(c) Sign and return to the Regional Director sufficient copies of the notice for posting by
Wayne Electric, Inc., if willing, at all places where notices to employees are customarily posted.

12 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., September 25, 2007.
____________________
John H. West
Administrative Law Judge
JD(ATL)-27-07
Houston, TX
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and
obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT unlawfully impose fines on you after we become aware that you resigned membership and accepted
work with a nonunion employer, and even though you had previously tendered to us a valid membership resignation
and you were not a member of Respondent.
WE WILL NOT unlawfully expel you after we become aware that you resigned membership and accepted work with a
nonunion employer, and even though you had previously tendered to us a valid membership resignation and you
were not a member of Respondent.
WE WILL NOT unlawfully fail to accept a valid union resignation from you so as to preclude you from resigning union
membership and accepting work with a nonunion employer.
WE WILL NOT in any like or related manner 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, rescind all of the disciplinary fines and expulsions levied
against the employees involved herein, restore all privileges and benefits affected by the discipline, and WE WILL,
within 3 days thereafter, notify Jeff Clark, Arnold Guardiola, and Dale Dray in writing that we have done so and that
we will not use the unlawful disciplinary action against them in any way.
International Brotherhood of Electrical Workers, Local 716
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
819 Taylor Street, Room
8A24 Fort Worth, Texas 76102-6178
Hours: 8:15 a.m. to 4:45 p.m. 817-978-2921.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’SCOMPLIANCE OFFICER, 817-978-2925.