NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

SKC Electric, Inc. and International Brotherhood of Electrical Workers, Local Union No. 124 and International Brotherhood of Electrical Workers, Local Union No. 257. Cases 17–CA–19438, 17–CA–19613, 17–CA–19935, 17–CA–19544, and 17–CA–19934

August 17, 2007

DECISION AND ORDER

By Members Schaumber, Kirsanow, and Walsh

On November 16, 1999, Administrative Law Judge Albert A. Metz issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief, and the General Counsel and Charging Party filed answering briefs.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

The unfair labor practice issues in this case arise from separate campaigns by IBEW Local 124 and IBEW Local 257 to organize, respectively, Respondent’s employees working out of facilities in Lenexa, Kansas, and Columbia, Missouri. For the reasons stated by the judge, we adopt his findings that the Respondent violated Section 8(a)(1) of the Act by threatening employees with stricter supervision and working conditions, by discriminatorily restricting employees from discussing the Union, by telling employees it will try to keep them segregated so as to prevent union organizational efforts, by coercively interrogating employee Kevin O’Brian,2 by telling employees that the Respondent will avoid hiring union sympathizers, by discriminatorily refusing to permit striking employees to attend company meetings, and by telling employees they were transferred because they engaged in protected activities.3 We also adopt the judge’s findings that the Respondent violated Section 8(a)(3) and (1) by discharging Robert Terhune,4 by denying training to Kevin O’Brian, by transferring Eric Yatsook, and by imposing more onerous working conditions on Rick Brockman.

However, for the reasons set forth below, we reverse the judge’s findings that the Respondent violated Section 8(a)(3) and (1) by refusing to hire Jim Beem, Roger Lake, Matt Mapes, Chris Heegn, and Gary Fisher because of their union membership or sympathies.5 We also reverse the judge’s finding that Section 10(b) of the Act does not bar the complaint allegations that the Respondent violated Section 8(a)(1) by threatening employees with job loss and by telling employees that the Respondent would never sign a contract. Accordingly, as discussed below, we dismiss those complaint allegations.

Finally, we agree with the judge that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union as the collective-bargaining representative of the Respondent’s Columbia, Missouri employees. Our reasons for so finding are set forth below.

i. the section 10(b) issue

A. Background

In April 1997, International Brotherhood of Electrical Workers, Local Union No. 257 (Local 257) began an organizing effort at the Respondent’s Columbia, Missouri facility. On September 26, 1997, Local 257 won a Board election, and, on October 6, 1997, was certified as the representative of the Respondent’s Columbia electricians, helpers, and apprentices.

On February 5, 1998, Local 257 filed the original unfair labor practice charge in Case 17–CA–19544. This charge alleged the following violations of Section 8(a)(1) and (3): (1) within the past 6 months, the Respondent refused to hire or consider for hire Gary Fischer, Greg Schrock, and Peter Rector because of their union or protected concerted activities; (2) within the past 6 months, the Respondent denied employees training because of their union or protected concerted activities; and (3) about November 3, 1997, the Respondent laid off Peter Rector and Kevin O’Brian (and refused to recall Rector) because of their union or protected concerted activities.

On April 22, 1998, Local 257 filed an amended charge in Case 17–CA–19544, and for the first time alleged that certain conduct in September 1997 violated Section 8(a)(1). Of course, this amended charge was filed more than 6 months after the alleged September 1997 unfair labor practices occurred. Specifically, the amended charge repeated the original charge allegations concerning the denial of training and the refusal to hire Fisher and Schrock (Rector was omitted). The amended charge also deleted the allegations concerning the layoffs of Rector and O’Brian and the refusal to recall Rector, and added the following Section 8(a)(1) unfair labor practice allegations: (1) on September 12, 1997, the Respondent threatened employees with job loss if they engaged in a strike or other protected concerted activities; (2) about September 24, 1997, the Respondent informed employees that it would be futile to select the Union as their collective-bargaining representative; and (3) in late September, the Respondent interrogated employees about their union activities and sympathies. These three Section 8(a)(1) allegations were incorporated into the consolidated complaint that the Regional Director issued on April 23, 1998.6

The Respondent argued to the judge that the three Section 8(a)(1) allegations of the complaint were barred by Section 10(b) because they were not asserted until the filing of the amended charge on April 22, 1998, more than 6 months after the alleged 8(a)(1) conduct occurred. The judge rejected this argument. Applying the “closely related” test set forth in Redd-I, 290 NLRB 1115 (1988),7 he concluded that the three disputed 8(a)(1) allegations of the complaint were “closely related” to the allegations of the timely-filed original charge. In this connection, the judge emphasized that both sets of allegations involved the same legal theory in that they alleged conduct designed to defeat the Union’s organizational campaign. He also found that the allegations arose from “the same factual sequence of events wherein it is alleged the Respondent sought to suppress union support at its operations.” The judge further found that the Respondent asserted the same defenses to the allegations, i.e., that it bears no animus towards the Union and that it did not engage in conduct designed to unlawfully discourage its employees from supporting the Union. Therefore, the judge found that the litigation of the three 8(a)(1) complaint allegations was proper. On the merits, he concluded that the Respondent violated the Act as alleged.

The Respondent excepts to the judge’s “closely related” finding and argues that Section 10(b) bars litigation of the three 8(a)(1) complaint allegations.

B. Analysis

In Carney Hospital, 350 NLRB No. 56 (2007), the Board recently overruled Ross Stores, Inc., 329 NLRB 573 (1999), enf. denied 235 F.3d 669 (D.C. Cir. 2001), to the extent that it held that “the requisite factual relationship under the ‘closely related’ test may be based on acts that arise out of the same antiunion campaign.” 329 NLRB at 574. As stated in Carney, the Board “will not find that the second prong [of Redd-I] is satisfied merely because timely and untimely allegations pertain to events that occurred during or in response to the same union campaign. But where the two sets of allegations demonstrate similar conduct, usually during the same time period with a similar object, or there is a causal nexus between the allegations and they are part of a chain or progression of events, or they are part of an overall plan to undermine union activity, we will find that the second prong of the Redd-I test has been satisfied.” Carney, supra, 350 NLRB No. 56, slip op. at 4 (footnote and internal quotations deleted).

Applying Carney to the facts of the instant case, we conclude, for the following reasons, that the untimely allegation concerning the interrogation of O’Brian is closely related to the timely filed allegations, but that the untimely job loss threat and futility statement allegations are not.

We find that the untimely O’Brian interrogation allegation is factually related to the timely charge allegation that O’Brian was denied training because of his union activities. The record shows that O’Brian was an open union supporter and served as the Union’s observer at the September 26, 1997 election. Shortly after the election, O’Brian was the only employee to volunteer for certain training that the Respondent was planning known as the “TEGG training,” and the Respondent told him that it would “get the wheels rolling” regarding the training. According to the credited testimony, however, about a week later, Estimator/Project Manager Doug Iles had a conversation with O’Brian about the TEGG training.8 Iles told O’Brian that the Respondent did not want anyone to receive the TEGG training who was going to be leaving in September or going on strike.9 Iles asked O’Brian what he would do if the Union called him out on strike. O’Brian told Iles that he would honor the strike. Iles replied, “Bill [Love, the Respondent’s owner] would want to know that.” Thereafter, the Respondent selected another employee, who had not volunteered, for the TEGG training. The judge found, and we agree, that O’Brian was unlawfully denied selection for the TEGG training because of his union sympathies.

These facts establish a close factual link between the denial-of-TEGG-training allegation of the charge and the interrogation allegation of the complaint. Both sets of allegations targeted the same employee and occurred very close in time. The Respondent questioned O’Brian to determine if he would participate in a strike because the Respondent did not want to offer the TEGG training to anyone who might do so. There is therefore a “causal nexus” between the allegations, in that the interrogation provided the information that directly led to the denial of training. Thus, the allegations are part of a “chain or progression of events.” In Carney, the Board stated that such a factual relationship would be sufficient to satisfy the second prong of the Redd-I test. Carney, supra, 350 NLRB No. 56, slip op. at 4. We therefore find that the two allegations arose from “the same factual situation or sequence of events” within the meaning of Redd-I. 290 NLRB at 1118.10

Unlike the interrogation allegation, however, we find that the job loss threat and the statement of futility alleged in the untimely amended charge and the complaint lack a close factual relationship to the discriminatory conduct alleged in the timely charge. The two sets of allegations do not involve similar conduct during the same time period with a similar object, nor is there a causal nexus between the allegations. There is no showing that the alleged September 12, 1997 threat of job loss or the alleged September 24, 1997 statement to employees that it would be futile to select the Union as their collective-bargaining representative were part of a chain or progression of events related to the refusals to hire, denial of training, layoffs or refusal to recall asserted in the timely filed charge. The alleged job loss threat was not directed specifically at any of the employees mentioned in that charge, but rather appeared in a letter sent to all unit employees concerning what could happen in the event of a strike. There is no showing that the alleged job loss threat led to any of the discriminatory conduct alleged in the timely filed charge. Similarly, although the alleged futility statement was made to Rector, who was named as a discriminatee in the timely filed charge, there is no showing that the futility statement led up to or caused any of the alleged discriminatory acts against him. Nor has it been shown that these discrete unfair labor practice allegations were part of an overall organized employer plan to undermine the Union. The 8(a)(1) allegations in the amended charge and complaint and the 8(a)(3) allegations in the initial charge have not been shown to be any more than separate actions carried out independently by several different Respondent officials. Although the events occurred during the same organizational campaign and the same general time period, “a chronological relationship without more is insufficient to support a finding of factual relatedness.” Carney, supra, 350 NLRB No. 56, slip op. at 5.

Having determined that the second prong of the Redd-I test has not been established with respect to these two allegations, the final inquiry is whether the untimely Section 8(a)(1) allegations can nonetheless survive a 10(b) time-bar defense even if, as found by the judge, the first prong, i.e., the common legal theory prong, of Redd-I has been met. As in Carney, we find that they cannot. Thus, even assuming that the allegations are related by legal theory, we cannot find them closely related in the absence of sufficient factual relatedness.11

In sum, we find that the statement of futility and the threat of job loss allegations are not closely related to the timely filed charge under Redd-I. Therefore, we find that these two 8(a)(1) complaint allegations are time-barred by Section 10(b), and they shall be dismissed. However, with respect to the third untimely complaint allegation (the interrogation of O’Brian), we find that the Redd-I factors have been satisfied. On this basis, we conclude that this complaint allegation is not barred by Section 10(b).

ii. remaining issues raised by the respondent’s exceptions

A. The Failure to Hire Four Union Applicants

The judge found that the Respondent violated Section 8(a)(3) and (1) by failing to hire union applicants Jim Beem, Roger Lake, Matt Mapes, and Chris Heegn. Specifically, the judge found that the Respondent applied stricter hiring criteria to the union applicants than it did to the other employees it hired for the jobs in question. The Respondent excepts to this finding on the ground that the four union applicants did not meet the Respondent’s legitimate hiring criteria, and that it did not “hire” the temporary workers it obtained through an employment service to fill the positions at issue. We find merit in the Respondent’s exceptions.

In 1994, International Brotherhood of Electrical Workers, Local Union No. 124 (Local 124) initiated an organizing effort at the Respondent’s Lenexa, Kansas, facility. During the course of this campaign, Local 124 filed several unfair labor practice charges. On July 17, 1997, Local 124 and the Respondent entered into a non-Board settlement, which required, inter alia, that the Respondent use Local 124 as its primary source of journeymen electricians at its Lenexa facility for a period of 2 years. Employees referred by Local 124 had to meet certain qualifications outlined in the settlement agreement, including passing the Respondent’s “Sheig” preemployment test.

On July 30, 1997, pursuant to the settlement agreement, the Respondent notified Local 124 that it needed 15 journeymen electricians for approximately 3 weeks. Local 124 representative Jim Beem informed the Respondent that it would be difficult to find applicants who would be willing to work for only 3 weeks. Nonetheless, on August 1 and 4, 1997, four union members applied for work at the Respondent’s office. Pursuant to the settlement agreement, the Respondent gave the applicants its “Sheig” test, which they failed. The Respondent then contracted with a third-party employment agency to provide workers to fill the temporary positions. The Respondent did not require the contract workers to take the Sheig test or otherwise satisfy the hiring criteria set forth in the settlement agreement.

The judge found that the Respondent discriminatorily applied the terms of the settlement agreement to the union applicants. We disagree. Although the settlement agreement applied by its terms to all applicants for hire, we agree with the Respondent that the temporary contract workers were not “hired” by the Respondent, and thus the hiring criteria contained in the settlement agreement were inapplicable to those workers.12 The record shows that the Respondent has obtained the services of contract workers in the past for emergency, short-term situations, or has “borrowed” idle employees from other electrical contractors on an as-needed basis. These temporary workers were not offered permanent employment and were paid benefits and wages directly from the third-party employer. Because the Respondent did not hire these workers, they were not required to pass the Sheig test or otherwise meet the Respondent’s hiring criteria.13 Consequently, the Respondent’s use of such workers provides no basis for finding that the union applicants were treated in a disparate manner with respect to the Respondent’s legitimate hiring criteria. Accordingly, we reverse the judge’s finding that the Respondent discriminatorily refused to hire the four union applicants who failed the Respondent’s preemployment test, and we shall dismiss this complaint allegation.

B. The Failure to Hire Gary Fisher

The judge found that the Respondent violated Section 8(a)(3) and (1) by failing to hire union applicant Gary Fisher. Specifically, the judge found that the Respondent discriminatorily applied its hiring criteria to Fisher when it refused to hire him because he did not have the requisite electrical experience to be considered for a position. The judge found disparate treatment based on the Respondent’s decision to hire another applicant, Peter Rector, even though Rector did not pass his preemployment drug test. Unlike Fisher, who revealed his union affiliation to the Respondent, Rector concealed his union membership. The Respondent excepts to the judge’s findings on the ground that Fisher and Rector’s situations are not comparable. We find merit in the Respondent’s exceptions.

The Respondent’s hiring policy requires all electrician applicants to meet the following conditions: (1) submit an application in person; (2) be “current in trade,” meaning that they have worked at least 12 out of the last 24 months as an electrician; (3) not have had in excess of two employers in the past 3 years; (4) be eligible for rehire with their last employer; (5) score 49 or higher on the Sheig test; (6) successfully complete an interview; and (7) pass a drug and alcohol test.

The record shows that Fisher was not hired because he did not meet condition (3) above, i.e., he had more than two employers in the last 3 years. The record also shows that the Respondent has refused to hire a number of applicants who failed to satisfy this condition.

The essential facts with regard to Rector’s application are not in dispute. On June 1, 1997, Rector applied for work with the Respondent. Rector met every condition for hire except that he failed the drug test. The Respondent’s policy requires applicants who fail the drug test to wait 6 months before retaking it. Nonetheless, the Respondent’s owner, Bill Love, waived the 6-month requirement for Rector if he would agree to pay for the second drug test and sign a waiver consenting to random drug tests during his first 3 months of employment. Rector took and passed the second drug test and began working for the Respondent in August 1997.

We disagree with the judge’s finding that the Respondent’s treatment of Fisher and Rector shows a disparate application of hiring policies between union and nonunion applicants. Rector satisfied every other preemployment condition, including the experience-related condition that he not have had more than two employers in the last 3 years. Fisher, who had more than two employers in the last 3 years, could never have satisfied this experience-related condition. As to the drug test, however, the Respondent’s policy permitted Rector to retake this test 6 months after his first test and, if he passed, he would be eligible for employment. In Rector’s case, Love waived the 6-month waiting period in exchange for Rector’s agreement to meet certain additional conditions during his first 3 months of employment—pay for the second test and be subjected to random testing. Nothing in the Respondent’s hiring policy prevents the Respondent from making such an agreement with an applicant that places additional constraints on his employment.

In sum, Fisher and Rector failed to meet different hiring criteria, and the Respondent had legitimate reasons, unrelated to union activity, for treating their situations differently. “An essential ingredient of a disparate treatment finding is that other employees in similar circumstances were treated more leniently than the alleged discriminatee was treated.” Thorgen Tool & Molding, 312 NLRB 628 fn. 4 (1993) (emphasis added). Here, as explained above, the circumstances of the two employees were not “similar.” Accordingly, we reverse the judge’s finding that Fisher was treated disparately, and we shall dismiss the complaint allegation that the Respondent unlawfully failed to hire him.

C. The Withdrawal of Recognition From Local 257

The judge found that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from Local 257 on the basis of a decertification petition that was tainted because it was circulated by the Respondent’s supervisor and agent, Paul Stovall.14 For the reasons stated below, we adopt the judge’s unfair labor practice finding, but not his entire rationale.

As stated above, on September 26, 1997, Local 257 won a Board-conducted election at the Respondent’s Columbia facility and, on October 6, 1997, was certified as the collective-bargaining representative of the Columbia electricians. Paul Stovall voted in the election and, for purposes of our analysis, we shall assume that, at all relevant times, he remained a member of the bargaining unit.

From May to early September 1998, Stovall was the project manager on the Respondent’s Westminster project. When that project ended, Stovall was assigned to oversee the Respondent’s various projects in the Columbia area, which required that he drive a company truck from project to project.

On about September 1, 1998, Stovall and Columbia Branch Manager Jim Miller discussed ways to decertify the Union. Miller told Stovall to “get a piece of paper, get a title on it and get signatures.” Stovall drafted such a document and, on September 1 and 2, 1998, while visiting the various jobsites during working hours, obtained the signatures of approximately 75 to 80 percent of the Columbia employees.

Stovall immediately attempted to file the petition with the Board’s office in Kansas City, but was told that the petition was untimely. Stovall reported this information to Miller, who told him that he would be sent back to Kansas City at the appropriate time to file the petition.

On October 7, 1998, Stovall drove his company truck during working hours to Kansas City and filed the decertification petition. On October 19, 1998, based on the filing of this petition, the Respondent withdrew recognition from Local 257 as the bargaining representative of its employees.

The judge found that Stovall was both a 2(11) supervisor and a 2(13) agent at the time he circulated and filed the representation petition. In its exceptions, the Respondent argues that Stovall was not a supervisor or an agent. In addition, the Respondent contends that even if Stovall was a supervisor, he was included in the bargaining unit and, therefore, his conduct cannot be attributed to the Respondent.

We agree with the judge that Stovall was an agent of the Respondent. We find it unnecessary to resolve whether Stovall was a statutory supervisor. In any event, his decertification efforts are attributable to the Respondent.

The Board has held that the conduct of statutory supervisors who are also bargaining unit members will not be imputed to the employer “in the absence of evidence that the employer encouraged, authorized, or ratified” such conduct or that the employer “acted in such [a] manner as to lead employees reasonably to believe that the supervisor was acting for and on behalf of management.” Montgomery Ward & Co., 115 NLRB 645, 647 (1956), enfd. 242 F.2d 497 (2d Cir. 1957), cert. denied 355 U.S. 829 (1957).

Assuming that Stovall was a statutory supervisor who was also a member of the bargaining unit, we conclude, applying the Montgomery Ward test, that Stovall’s conduct can be attributed to the Respondent. In response to Stovall’s question about how to decertify the Union, Branch Manager Jim Miller instructed him to “get a piece of paper, get a title on it and get signatures,” which Stovall did. Stovall circulated the decertification petition during working hours, while driving a company truck from jobsite to jobsite, all with the authorization of Miller. When Stovall advised Miller in September 1998 that the Kansas City Regional Office rejected the petition as untimely, Miller directed Stovall to return to Kansas City at a later time. Stovall again followed these instructions and drove a company truck during working hours to successfully file the petition the following month. Under these circumstances, we find that the Respondent encouraged, authorized, and ratified Stovall’s decertification activities. Thus, assuming that Stovall was a bargaining unit member and a statutory supervisor, we find that, under the Montgomery Ward test, his antiunion conduct is attributable to the Respondent.

Even if Stovall was not a statutory supervisor, his conduct would nonetheless be attributable to the Respondent if he was acting as the agent of the Respondent. In determining whether an individual is an agent of the employer, the Board applies the common law principles of agency as set forth in the Restatement 2d of Agency. See Dentech Corp., 294 NLRB 924 (1989); Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82 (1988). Agency status may be established, inter alia, under the doctrine of apparent authority, when the principal’s manifestations to a third party supply a reasonable basis for the third party to believe that the principal has authorized the alleged agent to do the acts in question. West Bay Maintenance, 291 NLRB at 82–83. “[E]ither the principal must intend to cause the third person to believe that the agent is authorized to act for him, or the principal should realize that this conduct [the manifestation] is likely to create such belief.” Id. at 83; Allegany Aggregates, Inc., 311 NLRB 1165 (1993).

Here, as discussed above, Stovall collected the signatures during working hours at a time when he was engaged in overseeing the Respondent’s various projects in the Columbia area. Stovall drove a company truck from project to project and collected the signatures while visiting the various jobsites. Under these circumstances, employees would reasonably believe that Stovall was authorized by the Respondent to circulate the petition and that he spoke and acted on behalf of the Respondent when he did so. Accordingly, we agree with the judge that Stovall was acting as an agent of the Respondent when he circulated the petition.

Therefore, whether or not Stovall was a statutory supervisor at the time he collected the employees’ signatures, we agree with the judge that the decertification petition was tainted by Stovall’s involvement with it and by the assistance the Respondent provided him in creating, circulating, and filing the petition. Consequently, the Respondent was not privileged to rely on the tainted petition, and the Respondent’s withdrawal of recognition from Local 257 violated Section 8(a)(5) and (1) of the Act.15

ORDER

The National Labor Relations Board orders that the Respondent, SKC Electric, Inc., Lenexa, Kansas, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Threatening employees with stricter supervision and working conditions because they engage in union activities.

(b) Discriminatorily restricting employees from discussing union matters while working.

(c) Telling union supporters that the Respondent will try to keep them segregated so as to prevent union organizational efforts.

(d) Coercively interrogating employees about their intentions to engage in a strike.

(e) Telling employees that the Respondent will avoid hiring union sympathizers.

(f) Discriminatorily refusing to permit striking employees to attend employee meetings.

(g) Imposing more onerous working conditions on employees because they engage in union activities.

(h) Denying training to employees because of their union membership or sympathies.

(i) Transferring employees, and telling them they were transferred, because they engaged in protected concerted activity.

(j) Discharging or otherwise discriminating against any employee for supporting the International Brotherhood of Electrical Workers, or any other labor organization, or engaging in protected concerted activity.

(k) Unlawfully withdrawing recognition of the International Brotherhood of Electrical Workers, Local Union No. 257 (the Union), as the collective-bargaining representative of the Columbia, Missouri, employees.

(l) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

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

(a) Within 14 days from the date of this Order, offer Robert Terhune full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make Robert Terhune whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. Backpay shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Robert Terhune and, within 3 days thereafter, notify the employee in writing that this has been done and that the discharge will not be used against him in any way.

(d) On request, bargain with the Union as the exclusive representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:

All helper, apprentice, and journeymen electricians employed by the Respondent at its Columbia, Missouri facility but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(f) Within 14 days after service by the Region, post at its Lenexa, Kansas, and Columbia, Missouri, facilities copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms provided by the Regional Director for Region 17, 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 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 July 15, 1997.

(g) 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.

It is further ordered that the complaint is dismissed insofar as it alleges violations not found.

Dated, Washington, D.C. August 17, 2007

Peter C. Schaumber, Member

Peter N. Kirsanow Member

Dennis P. Walsh, Member

(seal) National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

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

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not threaten you with stricter supervision and working conditions because you engage in union activities.

We will not discriminatorily restrict you from discussing union matters while working.

We will not tell union supporters that we will try to keep them segregated so as to prevent union organizational efforts.

We will not coercively interrogate you about your intentions to engage in a strike.

We will not tell you that we will avoid hiring union sympathizers.

We will not discriminatorily refuse to permit striking employees to attend employee meetings.

We will not impose more onerous working conditions on you because you engage in union activities.

We will not deny you training because of your union membership or sympathies.

We will not transfer you, and tell you that you are being transferred, because you engaged in protected concerted activity.

We will not discharge or otherwise discriminate against any of you for supporting International Brotherhood of Electrical Workers, or any other labor organization, or engaging in protected concerted activity.

We will not unlawfully withdraw recognition of the International Brotherhood of Electrical Workers, Local Union No. 257, as the collective-bargaining representative of our Columbia, Missouri, employees.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will, within 14 days from the date of the Board’s Order, offer Robert Terhune full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

We will make Robert Terhune whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, less any net interim earnings, plus interest.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of Robert Terhune, and we will, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way.

We will, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit:

All helper, apprentice, and journeymen electricians employed by us at our Columbia, Missouri facility but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees.

SKC Electric, Inc.

Mary Taves and Susan A. Wade-Wilhoit, Esqs., for the General Counsel.

James R. Holland II and Elizabeth P. West, Esqs., for the Respondent.

Michael T. Manley and Anita C. O’Neil, Esqs., (on the brief) for the Charging Party Unions.

DECISION[1]

Albert A. Metz, Administrative Law Judge. This case involves issues of whether the Respondent has violated Section 8(a)(1), (3) and (5) of the National Labor Relations Act (Act).[2] On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the parties’ briefs, I make the following findings of fact.

1. Jurisdiction and Labor Organization

The Respondent admits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Charging Parties (referred to jointly as the Union or individually as Local 124 and Local 257) are labor organizations within the meaning of Section 2(5) of the Act.

2. Background

The Respondent is an electrical contractor that is headquartered in Lenexa, Kansas and has a branch office in Columbia, Missouri. Until recently the Respondent was owned by Bill Love. In March 1998 the Respondent and several other nonunion contractors consolidated their operations and offered their stock to the public. At the time of the hearing, Larry Malach was the Respondent’s President.

A. The Lenexa Settlement Agreement

In 1994 Local 124 initiated an organizing effort at Respondent’s Lenexa facility. During the course of this union campaign Local 124 filed several unfair labor practice charges against the Respondent. On January 6, 1997, an unfair labor practice trial commenced concerning charges against the Respondent. During that trial Local 124 and the Respondent had settlement discussions, and on June 17, 1997, they signed a non-Board settlement agreement.

The settlement contained two agreements particularly relevant to the present proceeding. First, it provided for the reinstatement of discharged electrician Rick Brockman. Second, the parties agreed that the Respondent would use Local 124 as its primary source of hiring journeymen electricians at its Lenexa facility for a period of 2 years. Employees referred by Local 124 had to meet certain qualifications outlined in the settlement agreement.

B. The Columbia Facility

On October 6, 1997, Local 257 was certified as the collective-bargaining representative for a unit of electrician employees at the Respondent’s Columbia, Missouri, place of business.[3] The parties thereafter entered into collective-bargaining negotiations but no agreement was ever reached.

The Government’s complaint alleges numerous violations of the Act ranging over a period of nearly 1 and 1/2 years. The allegations concern both the Lenexa and Columbia offices. They commence with the reinstatement of Rick Brockman and conclude with the Respondent’s withdrawal of recognition of Local 257 as the representative of the Columbia employees.

3. July 15, 1997–Closer Supervision of Rick Brockman

Pursuant to the above-discussed settlement agreement, the Respondent offered reinstatement to Rick Brockman in July 1997. During the settlement discussions that preceded reinstatement, Brockman had been offered money to waive his right to be rehired. Brockman rejected this offer and returned to work without monetary compensation. A union organizing committee distributed a newsletter to the Respondent’s employees at the time Brockman returned to work. The newsletter made a point of informing the employees that Brockman had given up monetary compensation in order to return to work and organize the Respondent’s employees.

On July 15, 1997, Respondent’s employee Tim Coder, a nonsupervisory lead-person, reported for work at the Respondent’s Harrah’s Casino project in Mayetta, Kansas. Also working on the job were Bobby Cunningham, an apprentice and the stepson of supervisor, Richard Oberlechner. Coder met with Cunnigham and Oberlechner in a trailer where Cunningham was examining a copy of the Union’s newsletter that mentioned Brockman’s reinstatement. The men briefly discussed the newsletter.

Brockman was also working at the Mayetta jobsite on this day. He was assigned to work alone in the electrical room area. Coder and some other employees were elsewhere on the project waiting on a backhoe to dig a trench. Since the men were idle, Coder directed some of them to assist Brockman. Shortly thereafter, Coder went to the job trailer where supervisor Oberlechner was working. According to Coder’s testimony, Oberlechner asked why he had assigned employees to help Brockman. Coder explained they were nonproductive while they waited for the trench to be dug. Oberlechner angrily told Coder that when he assigned somebody a job he did not want Coder to interfere. Oberlechner continued by saying that he was timing Brockman to see how long it took him to do his work.

Coder left the trailer and went to Brockman. He told Brockman he had better “watch his ass,” because “they’re” out to get him. Brockman testified that he was told by Coder that Oberlechner was timing his work. Coder testified that he had never been given a time target for the completion of tasks when assigning employees on the Mayetta project, nor had he been questioned about any employee assignments prior to this occasion. Oberlechner denied that he had told Coder he was timing Brockman’s work.

Coder was a credible witness whose demeanor was impressive. It was clear from his testimony that Oberlechner’s anger at him for assigning help for Brockman had surprised Coder and made a strong impression on him. Coder’s testimony that Brockman was being timed likewise was persuasive. Brockman corroborated Coder’s version of events by testifying that he had been warned about Oberlechner’s remarks shortly after the conversation.[4] In contrast Oberlechner’s demeanor was not convincing in his denials of the conversation. In sum, I credit Coder’s version of events. In light of the close proximity between Brockman’s return to work, the Union’s publicity that he was going to organize Respondent’s employees, the angry statement by Oberlechner that he did not want Brockman getting assistance, and his statement he was timing Brockman’s work, I infer that the reason for Oberlechner’s coercive statements was because Brockman was a known union advocate.

The test of whether an employer’s remarks or actions violate the Act’s prohibition against interference, restraint or coercion is not whether it succeeds or fails but rather the objective standard of whether it tends to interfere with the free exercise of employee rights under the Act. Fieldcrest Cannon, Inc., 318 NLRB 470, 490 (1995). Oberlechner’s statements to Coder that he did not want employees assigned to help Brockman and that he was timing Brockman’s work convey the message that employees who engage in activities on behalf of the Union will be subjected to stricter supervision and working conditions. Such statements are inherently coercive, and destructive of employee rights. I, therefore, find that Oberlechner’s statements to Coder are a violation of Section 8(a)(1) of the Act.

I find that the Government has proven that Oberlechner engaged in timing Brockman because he engaged in union activity, that the employer knew of the activity, and that the employer took action adverse to the employee motivated by animus for that activity. The timing of Brockman’s work is a discriminatory imposition of more onerous working conditions. Based on the credited testimony, I find that the Respondent has failed to overturn the Government’s showing of proof in this regard. Wright Line, 251 NLRB 1083 (1980). I find that the Respondent’s timing of Brockman’s work is violation of Section 8(a)(1) and (3) of the Act.

4. July 23, 1997–Prohibition Against Discussing the Union

On approximately July 21, 1997, Brockman was reassigned to work at the Respondent’s Great Plains Mall project in Olathe, Kansas. Respondent’s senior project manager at that job was supervisor Bud Bishop. Shortly after Brockman’s arrival on the job, supervisor, Jeff Foster, reported to Bishop that Brockman had been bothering other employees during working hours about joining the Union. The Respondent has a no-solicitation policy that prohibits solicitations during working time, and in light of the complaints, Bishop decided to talk to Brockman about the matter. On approximately July 23 Bishop held a safety meeting with Respondent’s employees. After the meeting concluded he called Brockman into a nearby mechanical room. Bishop told Brockman that some employees had complained about his bothering them concerning joining the union. Bishop testified he told Brockman that, “I did not want him discussing the Union or his policies during working hours. I didn’t care if he did it over the noon hour or after work but I did not want him doing it during working hours because we were in . . . the last four weeks of the Great Plains Mall.”

The Respondent argues that it had the right to prohibit Brockman’s soliciting for the Union during working hours. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803–804 (1945) (employer may prohibit solicitation on working time). The Respondent concedes that its employees are permitted to talk about a variety of subjects during working hours without restriction, but asserts this privilege is conditioned upon their working while conversing. It defends the restriction placed upon Brockman because he reportedly was in an area remote from his normal assignment and was not working when discussing the union with fellow employees. Adco Electric Incorporated, 307 NLRB 1113, 1118 (1992), enfd. 6 F.3d 1110 (5th Cir. 1993) (no violation of the Act when the employer prohibited an employee from leaving his work area to discuss the union with other employees.)

I find that the Respondent’s defense is misplaced. Bishop’s statements to Brockman were not directed at his being away from his work area. Rather Bishop admittedly told Brockman that he could not talk about the Union during work hours. This is a discriminatory application of Respondent’s policy that admittedly was not applied to other types of work conversations. I find that the Respondent violated Section 8(a)(1) of the Act by Bishop’s discriminatory restriction of Brockman’s nonwork related union conversations. Willamette Industries, 306 NLRB 1010 fn. 2 (1992).[5]

5. August 1997–Jim Beem, R. Lake, Matt Mapes &
Chris Heegn not Hired

As noted above, on June 17, 1997, the Respondent and Local 124 signed an agreement settling certain unfair labor practice charges. The agreement contained provisions that when the Respondent had openings for journeymen electricians, it agreed to contact the Union for workers. The Union then had 3 working days to provide the Respondent with qualified applicants. The term “qualified applicant” was defined by Paragraph 6(b) of the settlement agreement as i) a journeyman electrician with at least 6 months of electrical experience in the last 12 months; ii) an appropriate license if the position sought requires such; iii) successfully passing the preemployment “Sheig” test with a score of 49 or higher;[6] iv) successfully passing a drug test, and, v) the applicant must be a BAT journeyman or have passed the Union’s journeyman certification exam. (G.C. Exh. 13) If the Union failed to provide a qualified applicant within the 3 day time frame, the Respondent could hire from other sources using the same criteria used to screen the Union’s applicants.

On July 30, 1997, Respondent’s President, Larry Malach, telephoned the Union’s Director of Organizing, Jim Beem, and requested 15 journeymen electricians. Beem agreed to locate the applicants and have them apply at the Respondent’s office. Later the same morning, Malach sent a fax which stated:

Our notice to you this a.m. requesting (15) journeyman electricians. Please send these people to our office to fill out applications. All applicants will be processed pursuant to paragraph 6 of the agreement. (GC 14)

On the afternoon of July 30 Malach telephoned Beem and told him that the 15 positions were for temporary jobs that could last up to 3 weeks. Beem said he did not know if he would be successful in filling temporary positions, but he would try. Malach said he was not sure if the applicants would need to take the Sheig test, but he would talk to his attorney and find out. Shortly thereafter Malach telephoned Beem and said that the applicants would have to take the Sheig test.

On August 1, 1997, Beem went to the Respondent’s office, applied for employment and took the Sheig test. On August 4 union organizers, Roger Lake, Matt Mapes, and Chris Heegn also applied for work with the Respondent and took the Sheig test. None of these men were hired by the Respondent in connection with their August applications. The Respondent asserts that because Jim Beem, Roger Lake, Matt Mapes, and Chris Heegn did not achieve a score of 49 or higher on the pre-employment Sheig test they were not hired.

On August 4 Malach telephoned Beem to confirm that the time for Local 124 to supply applicants had expired. During that conversation, Beem mentioned that he had seen a newspaper advertisement placed by the Respondent seeking electricians. The ad had stated that the Respondent had “steady work” available for electricians. Malach told Beem that the jobs mentioned in the ad were the same ones for which the Respondent had requested union referrals.

The Respondent did hire the needed electricians using a temporary employment agency, CTS. The parties stipulated that the Respondent did not require any of the CTS employees to meet the hiring criteria outlined in paragraph 6 of the settlement agreement, including making application or taking the preemployment Sheig test. Malach testified that Respondent did not require the CTS employees to meet the hiring criteria because they were contract workers and therefore Respondent was not “hiring” them. The hiring criteria described in paragraph 6 of the settlement agreement were to be used to evaluate applicants. It makes no mention of contract employees.

Respondent asserts two arguments regarding its alleged discriminatory application of the settlement hiring policy. First, it maintains that temporary employees are excluded from that policy, and second, that the Respondent made an offer to the union not to follow the hiring policy if it would act as a contract labor company. I find that nothing in the settlement agreement allowed the Respondent to treat union applicants for employment different than any other person seeking to work for the company. Likewise, the fact that the Respondent proposed at one point that the Union act as an employment agency, maintaining the electricians on the Union’s payroll, does not excuse the Respondent’s requiring union applicants to meet hiring criteria not required of the contract employees.

The elements of a discriminatory refusal-to-hire case are the employment application . . . the refusal to hire . . . a showing that [the applicant] was or might be expected to be a union supporter or sympathizer, and further showings that the employer knew or suspected such sympathy or support, maintained an animus against it, and refused to hire the applicant because of such animus. Big E’s Foodland, Inc., 242 NLRB 963, 968 (1979).

The Government has made a prima facie showing that the failure to hire the four union applicants was discriminatory. There is no dispute the Respondent knew of their union affiliation because they were referred for employment by the Union. As found in this decision, the Respondent’s other violations of the Act demonstrate its animus towards the Union. The Respondent did not apply the hiring criteria when hiring contract employees. Thus, the union applicants were disfavored and discriminated against because of their referral through the Union. The Respondent has failed to rebut General Counsel’s prima facie case of discrimination.

In Fluor Daniel, Inc., 311 NLRB 498 (1993), the Board articulated the following standard in discriminatory hiring situations:

In Wright Line, 251, NLRB 1083 (1980) (and approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983)), the Board set forth its causation test for cases alleging violation of the Act turning on employer motivation. First the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a “motivating factor” in the employer’s decision. Once accomplished, the burden shifts to the employer to demonstrate that the same action would have taken place notwithstanding the protected conduct. It is also well settled, however, that when a respondent’s stated motives for its actions are found to be false, the circumstances may warrant an inference that the true motive is an unlawful one that the respondent desires to conceal. The motive may be inferred from the total circumstances proved.

I find that the Respondent’s discriminatory application of stricter hiring standards applied to union applicants and the resulting failure to hire Beem, Lake, Mapes, and Heegn is a violation of Section 8(a)(1) and (3) of the Act. Ultrasystems Western Constructors, 310 NLRB 545, 555 (1993); Monfort of Colorado, 298 NLRB 73, 79–83 (1990), enf. in relevant part, remanded as to remedy, 965 F.2d 1538 (10th Cir. 1992), on remand, 309 NLRB 288 (1992).

6. August 12, 1997–Termination of Robert Terhune

Robert Terhune was employed by the Respondent from 1993 to August 12, 1997. Terhune became a member of Local 124 in June 1997 but did not disclose his membership to the Respondent at that time. In August 1997 Terhune was working for the Respondent at the Wilcox project in Overland Park, Kansas. A union pipefitting contractor, U.S. Mechanical, was also working at that jobsite. On approximately August 11, 1997, Terhune asked some of U. S. Mechanical union employees to assist him in promoting the benefits of unionization among the Respondent’s employees. When Terhune came to work on August 12 he observed that U.S. Mechanical’s gang boxes (large tool boxes) and other items on the job had International Brotherhood of Electrical Worker stickers on them. Terhune testified that he decided he wanted to support the union effort more overtly and thus wrote some comments on his drill box. Terhune then put his drill box on top of the Respondent’s gang box for other of Respondent’s employees to read. Terhune’s written comments stated:

4 YEARS EMPLOYMENT FOR SKC INC

4 YEARS 97% OR BETTER IN SCHOOL

4 YEARS BELOW POVERTY LEVEL WAGES

4 YEARS OF WELFARE AND MEDICAID FOR MY FAMILY

4 YEARS OF RECORD BREAKING PROFIT FOR BILL (Respondent’s president at the time.)

ATTITUDE PROBLEM—NAW

R. TERHUNE

Terhune testified that he wrote the comments for other employees to see because he wanted to get their attention so, “we could vote and get Respondent organized and get some better wage packages out there, and get some insurance and some benefits.”

Shortly before lunch another employee turned the drill box over so the written comments were obscured. During lunch Terhune again prominently placed his drill box so his written comments could be read by fellow employees. Several employees discussed the sign with Terhune. Some of the discussion centered upon the employees’ opinions that he was going to get in trouble over the sign. Other conversations involved “various comments of yes or no on it.”

Eventually Respondent’s Project Manager, Dennis Schulz telephoned Vice-President Larry Malach about Terhune’s sign. Malach said, “I guess one has the right to express their own opinion, but if you want I could come out and review it with you.” Malach then went to the job to investigate the matter. Malach and Terhune discussed the written remarks and Malach told Terhune he thought the comments were untrue. Malach said that Terhune was an A6 apprentice and thus making good wages. Terhune said that he had taken the Union’s skills tests and the Union had classified him as a journeyman electrician. Terhune testified that he noticed a change in Malach’s demeanor at that point and that Malach became mad. Malach stated that the Respondent had been liberal with Terhune regarding his poor absenteeism and disciplinary record. Terhune acknowledged this treatment and thanked Malach for that consideration. Malach testified that “during that discussion I just made up my mind that enough is enough, this is the straw that broke the camel’s back.” Malach said that Terhune’s attitude was disruptive and it disrupted the other employees on the job. Malach then told Terhune to get his tools and leave the job. Terhune’s termination report reads:

Robert has had excessive absenteeism as well as problems on jobsites such as smoking in public buildings when instructed not to, other employees complaining about his attitude and lack of working in harmony, and engaging in behavior designed to create discord. (G.C. Exh. 22)

Malach prepared some paper work regarding Terhune’s discharge. In one memo he describes the sign as “one of several issues with Robert.” (G.C. Exh. 24(a)). Malach cites Terhune’s absenteeism and an incident in which Terhune was removed from a school project for violating policy by smoking in the building. The memo also mentions complaints from other employees regarding Terhune’s attitude, lack of working in harmony and “engaging in behavior designed to create discord.” Notes, which Malach prepared about the incident state that Terhune, had “mounted the case on top of the drill box for other worker’s [sic] to see.” (G. C. Exh. 23).

The General Counsel has the initial burden of establishing that union or other protected activity was a motivating factor in Respondent’s action alleged to constitute discrimination in violation of Section 8(a)(3). The elements commonly required to support such a showing of discriminatory motivation are union activity, employer knowledge, timing, and employer animus. Once such unlawful motivation is shown, the burden of persuasion shifts to the Respondent to prove its affirmative defense that the alleged discriminatory conduct would have taken place even in the absence of the protected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); Electromedics, Inc., 299 NLRB. 928, 937 (1990), enfd., 947 F.2d 953 (10th Cir. 1991); Presbyterian/St. Luke’s Medical Center, 723 F.2d 1468, 1478–1479 (10th Cir. 1983). The test applies regardless of whether the case involves pretextual reasons or dual motivation. Frank Black Mechanical Services, 271 NLRB 1302, fn. 2 (1984). “A finding of pretext necessarily means that the reasons advanced by the employer either did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful motive established by the General Counsel.” Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. sub nom. 705 F.2d 799 (6th Cir. 1982).

Terhune had job problems in the past yet the Respondent had tolerated his conduct. Terhune was candid when testifying about these problems and impressed me as a truthful witness. Malach’s demeanor and testimony were not persuasive. He admittedly did not intend to do anything about Terhune’s sign when he went to the jobsite. Yet after discussing the matter with Terhune, Malach fired him on the spot. There is a dispute as to whether Terhune mentioned he had taken the Union’s test and that the Union classified him as a journeyman electrician, thus informing Malach of his union sympathies. Malach denied Terhune mentioned the union during their conversation. Schulz testified that he was present during the entire conversation and that Terhune did not tell Malach that he was a “member of the union.” Terhune’s testimony contradicts Schulz on this point. Terhune testified that Schulz stepped away during part of the conversation. Assessing the witnesses’ demeanor on this point I find that Terhune is the more accurate and persuasive and that he did tell Malach he had taken the Union’s test and been classified by the Union as a journeyman. As to the element of animus this decision finds several violations of the Act that demonstrate the Respondent harbored animus towards the Union and its supporters. I find that the Respondent has failed to overcome the Government’s prima facie case that Terhune was immediately discharged when Malach learned of his union sympathies. I find that Terhune’s termination was, at least in part, motivated by his union activities and that such discharge is a violation of Section 8(a)(1) and (3) of the Act. Wright Line, supra.

Terhune undoubtedly made the sign in an effort to express his opinion on Respondent’s working conditions. He also prominently displayed the sign in an effort to draw fellow employees into supporting his position. Terhune discussed the sign with his fellow employees. Malach noted Terhune’s purpose when he wrote that he had “mounted the case on top of the drill box for other worker’s (sic) to see.” Terhune also discussed organizing with U.S. Mechanical employees who worked on the same jobsite and asked them to assist him in organizing the Respondent. Upon seeing their visible support being displayed on the job, Terhune decided to join in the effort and publicize his feelings by creating his sign. In sum, I find that Terhune was engaged in concerted activity when he displayed his sign on the jobsite and the Respondent had knowledge of his concerted activities. Cincinnati Suburban Press, 289 NLRB 966 (1988); Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).

The Respondent argues that it discharged Terhune based on his absenteeism, failure to follow company rules and general poor attitude. Malach’s testimony does not clearly define what the Respondent meant about his attitude problem. Specific evidence of what “discord” Terhune was creating on the jobsite was likewise not forthcoming from the Respondent. Malach admitted that Terhune’s sign was the “straw that broke the camel’s back” when he made the discharge decision. I find that at least part of the reason Terhune was discharged was his displaying the sign for fellow employees to see. This was an extension of his discussing organizing the Respondent with the U. S. Mechanical employees and resulted in his having discussions with other of Respondent’s employees about their views on what was stated in the sign. I conclude that in basing the discharge, in part, on this concerted protected activity that the Respondent independently violated Section 8(a)(1) of the Act. Manimark Corp., 307 NLRB 1059 (1992);

7. August 20, 1997–Statement of Segregating Union Advocate

In August 1997 Rick Brockman was working for the Respondent at the Sunflower Ammunition Plant, in Desoto, Kansas. Another of Respondent’s employees on the job was Robert Gibson. Their supervisor was Service Manager, Craig Petty. On August 20, 1997, Gibson arrived at work and noticed for the first time that Brockman was working on the jobsite. Gibson asked Petty if it was Rick Brockman he had seen that morning. Petty said that it was, “and I’ll try and keep him away from you so he doesn’t try and get you to go over to the Union.”

Shortly after that conversation Gibson went to Brockman. Gibson testified he told Brockman that Petty had told him he would keep him away from Brockman. Brockman testified that Gibson said to him that Petty had told him to stay away from Brockman, as he was a bad influence on people.

Petty testified that on the Friday before August 20 that Brockman was being assigned to the job the following week. Petty testified that it was his practice to inform other men on the job of new arrivals so he could learn of any concerns. Petty recalled that Gibson had said he would rather not “be approached” by Brockman. Gibson was then off for a few days and when he returned Petty testified he told Gibson he would see what he could do to satisfy his request to keep Brockman away from him.

Gibson denied ever making a request of Petty that Brockman be kept away from him and that he had not been aware that Brockman was to be working on the job until he saw him on August 20. Gibson, who has worked with Petty on several other jobs, testified that he has never been told by Petty about new employees coming on the job or asked if he had any conflicts with them.

I found Petty’s uncorroborated testimony of his practice in asking men about conflicts with new arrivals to be unpersuasive. Petty’s demeanor and explanation as to why he told Gibson that he try to keep Brockman at length from him is not credited. Gibson was a convincing witness whose demeanor was impressive. Gibson’s version of events is credited. I find that Petty’s telling an employee that he would keep Brockman away from him was an effort by the Respondent to restrict union supporter Brockman from talking about the Union with fellow employees. I find this conduct is a violation of Section 8(a)(1) of the Act.

8. September 12, 1997–Threat of Job Loss

Local 257 initiated its organizational campaign at Respondent’s Columbia facility in April 1997. On September 12, 1997, Respondent’s president, Bill Love, sent a letter to the Columbia employees expressing the Respondent’s positions on certain matters concerning the Union’s campaign. The letter, in pertinent part, made the following statements:

Here are the legal facts about what could happen if you were called out on strike over Union contract demands: . . .

4) YOU COULD LOSE YOUR JOB TO A REPLACEMENT: This is the most important of all. Under the law, the Company can continue operating by hiring new employees to take the place of striking employees. The Company has the right to hire permanent replacements for economic strikers. If you are replaced the Company does not have to make room for you when the strike ends.

The Government alleges that the statement in the September 12 letter is a violation of the Act because it unlawfully threatens employees with losing their jobs for engaging in a strike. The Respondent defends against this allegation by asserting that the claim is barred by Section 10(b) of the Act; and regardless of that defense, the statement is an accurate recitation of the law and is proper under existing Board precedent.

A. Respondent’s Section 10(b) Defenses

Section 10(b) of the Act states: “That no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board. . . .” The Respondent argues that the allegation concerning Love’s September 12 letter, as well as other allegations discussed below were untimely.[7] The charge in case number 17–CA–19544 was filed by Local 257 on February 5, 1998. That charge alleged several unfair labor practices: (1) refusals to hire or consider for hire employees because of their union affiliation and/or concerted protected activities; (2) a refusal to offer training to an employee; and (3) a discriminatory layoff.

An amended charge in Case 17–CA–19544 was filed on April 22, 1998. The amended charge contained the following pertinent allegations: (1) on or about September 12, 1997, Respondent threatened employees with job loss if they engaged in a