Adco Electric

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1113 (N.L.R.B. 1992)

1113
307 NLRB No. 171
ADCO ELECTRIC
1 The General Counsel filed a motion to strike the Respondent’s
Appendix A which was attached to the Respondent’s brief in support
of exceptions. The General Counsel contends that Appendix A—
transcript pages from an earlier representation hearing involving the
Respondent—was initially attached to the Respondent’s posthearing
brief and was struck by the judge in his decision because the judge
found: (1) it constituted new evidence and should have been intro-
duced by a motion to reopen the record; (2) the submitted pages
could be taken out of context; and (3) the General Counsel was not
a party to the earlier hearing and thus was unable to cross-examine
witnesses. The General Counsel contends that Appendix A should be
struck for the same reasons as stated by the judge. We find merit
to the General Counsel’s contentions, agree with the reasons cited
by the judge in his decision, and grant the General Counsel’s motion
to strike.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (195), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In sec. III,C,1,a, of his decision, the judge speculates about the ab-
sence of Electrician Foreman Raymond Langford’s name from the
October 31, 1990 Decision and Direction of Election and the subse-
quent November 15, 1990 Erratum. We note that Langford was dis-
charged on August 17, 1990, before the petition was filed, and well
before the date of the Decision and Direction of Election.
3 The judge found, and we agree, that the Respondent failed to
carry its burden of showing that Raymond Langford was a super-
visor within the meaning of the Act. See, e.g., Health Care Corp.,
306 NLRB 63 fn. 1 (1992) (party alleging supervisory status bears
the burden of proving an individual is a supervisor). In support of
its position on this issue, the Respondent relies, inter alia, on its job
descriptions for electrician foremen and journeymen electricians. The
judge rejected the job descriptions as demonstrating supervisory sta-
tus, concluding that the Respondent’s job descriptions, if accurate,
effectively conferred supervisory status on virtually all employees
(including journeymen), save a few apprentices. He thus impliedly
found, and we agree, that the Respondent’s job descriptions were an
inaccurate reflection of Langford’s duties and powers. Moreover, we
note that the judge credited Langford’s testimony that he never re-
ceived a job description.
1 All dates are for 1990 unless otherwise indicated.
Adco Electric Incorporated and International
Brotherhood of Electrical Workers, Local
Union No. 480, AFL–CIO. Case 15–CA–
11329–4
June 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On October 4, 1991, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Adco Electric Incor-
porated, Jackson, Mississippi, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Ronald K. Hooks, Esq. and Kathleen McKinney, Esq., for the
General Counsel.
Emile C. Ott, Esq. and Jerrald L. Shivers, Esq. (Fuselier,
Ott, McKee & Shivers), of Jackson, Mississippi, for Re-
spondent Adco Electric.
C. L. Tucker, Business Manager, of Jackson, Mississippi, for
IBEW Local 480.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. ‘‘We have
here for decision the aging but nevertheless persistently vex-
ing problem of whether or not an employee is a supervisor.’’
NLRB v. Security Guard Service, 384 F.2d 143, 145 (5th Cir.
1967). (Circuit Judge Goldberg’s opening line from the
court’s opinion.)
During an organizing campaign by IBEW Local 480, Adco
fired two workers, Electrician Foreman Raymond Langford
and apprentice electrician Eric Muncy. Adco gives mixed
reasons and afterthoughts for discharging Muncy. Adco ad-
mits firing Langford because he was assisting in the Union’s
organizing campaign. Thus, the sole issue as to Langford is
whether he was a statutory supervisor when Adco fired him.
Finding that Adco failed to carry its burden of proving
Langford’s supervisory status, and that Muncy’s discharge
was pretextual, I order Adco to offer each of them full and
immediate reinstatement and to make them whole, with inter-
est.
I presided at this hearing in Jackson, Mississippi, on June
24–25, 1991, pursuant to the January 31, 1991 complaint
issued by the General Counsel of the National Labor Rela-
tions Board through the Acting Regional Director for Region
15 of the Board. The complaint is based on a charge filed
November 23, 1990 (and later amended), by International
Brotherhood of Electrical Workers, Local Union No. 480,
AFL–CIO (Union, Local 480, or Charging Party) against
Adco Electric Incorporated (Adco, Respondent, or Com-
pany).1
In the complaint the General Counsel alleges that Adco
violated Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1),
about July 24 by coercively interrogating its employees; on
October 4 and 5 by orally promulgating a rule prohibiting
employees from discussing the Union; and about November
15 by informing its employees that they could not be given
a pay increase because of the Union.
The complaint also alleges that Adco violated Section
8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), by terminating
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The General Counsel attached a proposed order and a proposed
notice to the Government’s brief.
3 Adco attached to its brief, as Appendix ‘‘A,’’ copies of certain
pages from the apparent transcript of a September 19, 1990 hearing
in Case 15–RC–7553 involving the Union and Adco. For the reasons
I give later when describing Case 15–RC–7553, I shall strike and
disregard Adco’s Appendix A.
4 References to the two-volume transcript of testimony are by vol-
ume and page. Exhibits are designated G.C. Exh. for the General
Counsel’s and R. Exh. for Respondent Adco’s.
Raymond Langford about August 17, by terminating Eric
Muncy about September 17, and by issuing a verbal warning
to LaFrance Smith about October 4, 1990.
By its answer Adco admits certain factual matters but de-
nies violating the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel2 and Adco,3 I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
A Mississippi corporation headquartered in Jackson, Mis-
sissippi, the Company (Respondent Adco) is an electrical
contractor in the building and construction industry. During
the 12 months ending December 31, 1990, Adco purchased
and received, at various Mississippi jobsites, goods and ma-
terials valued at $50,000 or more direct from sources located
outside Mississippi. Although Adco denies the allegation, I
find that it is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Subject to its contention that Local 480 has a conflict of
interest in this case (acting as a competitor of the Company),
Adco admits that, otherwise, Local 480 is a labor organiza-
tion within the meaning of Section 2(5) of the Act. (1:15–
16.)4
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The Company
a. Organization
Whit Adams, as Adco’s president identifies himself (1:34;
2:430), identified a 39-page handbook (G.C. Exh. 8) which
Adco distributes to its employees. (1:37.) The second page
summarizes Adco’s history. Adams founded Adco in 1978 as
an electrical contractor doing residential and small commer-
cial electrical construction. Since then Adco has progressed
to much larger commercial projects, with its largest single
customer being Government at all levels. New employees are
advised, ‘‘One day you may be working in the trenches of
a pumping station in rural Smith county. The next day you
might be helping restore a historic building in downtown
Jackson.’’
From its Jackson headquarters, Adco performs work at
jobsites located up to 225 miles away. (2:302–303, 440.)
Employing both ‘‘inside’’ (including service electricians) and
‘‘outside’’ (the construction electricians) personnel (2:433),
Adco’s outside contingent reached a high, within the last 5
years, of about 49 and a low, its current number, of 14.
(2:330, 364, 434–435.) The current low has prevailed since
about October 1990. (2:363–364, 460.) The number in the
summer of 1990, Superintendent Buie testified, was about
20. (2:363–364.) In 1989 the number was about 30. (2:364.)
The number reduction accelerated in 1990 and 1991. (2:363.)
Adco’s outside personnel are under the overall direction of
a general superintendent, William Richard Buie. (1:35; 2:295,
434.) As Adco’s organization chart reflects (G.C. Exh. 8 at
29), the general superintendent reports direct to Adams. Re-
porting to Buie are the job foremen. (2:303, 434; G.C. Exh.
8 at 29.) When Buie is to be absent, either he or Adams des-
ignates one of the foremen to be the acting superintendent.
Whichever foreman is most available in his work, Buie testi-
fied, is selected. (2:321, 380–381, 444.)
Job foremen are journeymen electricians, although an ap-
prentice may substitute in an emergency or unexpected ab-
sence of the job foreman. Buie testified that Adco seeks to
retain its job foremen on the payroll, and that in layoffs ap-
prentices and electricians (journeymen who are not job fore-
men) are laid off before job foremen. (2:365–366, 370.) That
retention policy, combined with Adco’s personnel reduction
over the last couple of years, perhaps explains the fact that
the Company’s current outside staff of 14 includes 5 job
foremen. (2:460.) When the outside staff numbered about 20
(in the summer of 1990), that number included 6 to 8 job
foremen, about the same number as when the staff was at its
normal average of about 30. (2:330, 370.)
A construction crew normally consists of a foreman (jour-
neyman) and a helper (apprentice) (1:91, 105), although, as
Adco’s organizational chart reflects (G.C. Exh. 8 at 29), in
some instances, as Adams implies, there will not be a des-
ignated job foreman. (1:40–41.) Indeed, the instant case in-
volves an apprentice, Eric Lott, who substituted 1 week for
injured Job Foreman David Lewis. General Superintendent
Buie describes Lott’s substitution as being in the capacity of
a leadperson. (2:335.) For single-crew jobs the foreman nor-
mally will have no more than 4 others, electricians and ap-
prentices, on the crew (2:439), although such a crew can
number a many as 15. (2:300.)
On some jobs Adco assigns several crews involving up to
26 employees. Each year, on average, Adco has about 10 to
13 of these multicrew projects. (2:300.) Job foremen spend
about 50 percent of their time on the multicrew projects,
Buie testified. (2:300–301.) When there are several crews on
a job, Superintendent Buie explains, with each crew under
the direction of the crew’s job foreman, Adco designates one
foreman as the job foreman. That foreman then is known as
the general foreman. On such multicrew jobs, Buie holds the
general foreman responsible for the job. (2:301, 305, 370–
371.) The basic reason for such responsibility is that the
other foremen, with their crews, are reassigned to other jobs
regularly, working no more than 10 to 70 percent on the job
of the multicrew project. (2:306.)
Adco’s employee handbook (G.C. Exh. 8) refers at various
points to employees’ ‘‘immediate supervisor.’’ Adams testi-
fied that the job foreman at Adco is that immediate super-
visor. (2:436–439.) The relevant question in this case is
whether Raymond Langford was a job foreman and, if so,
whether he was a statutory supervisor. That is so because
1115ADCO ELECTRIC
Adams frankly concedes that Adco fired Langford because
he was soliciting for the Union. (1:42.) If, contrary to the
General Counsel’s position, Langford was a statutory super-
visor, then he is not directly protected by the Act, and the
General Counsel makes no allegation nor argument that he
is indirectly protected in this case.
b. Union philosophy
Adco opposes unionization. The handbook states it, and
President Adams candidly acknowledges that his firm’s pol-
icy is to remain nonunion. (1:46.) The handbook’s statement
reads (G.C. Exh. 8 at 5):
5. A FEW WORDS ABOUT UNIONS
There is always a chance that in the future a labor
union organizer will try to persuade some of our em-
ployees to sign union authorization cards. For this rea-
son, it is important that you understand our position
concerning unions.
To say it simply and clearly, although you have the
legal right to join a labor union, you also have the legal
right NOT to join a labor union. We prefer to work
with our employees informally, personally, and directly,
rather than through third party outsiders intervening be-
tween us. We think you agree. So we will make every
effort that is legally permissible to retain our status as
an ABC Merit Shop, NON-union contractor.
We have the ability, the desire, the expertise, and the
personnel to solve our problems and move forward by
working together in the Merit Shop Way -- without in-
terference from union outsiders. Based on these facts,
we believe a labor union is unnecessary and unwanted
here at Adco Electric, Inc.
2. The Union
a. Case 15–RC–7553
In early August 1990 Lavern Tucker, IBEW Local 480’s
business manager, contacted Raymond Langford. Langford
informed Buie that Tucker wanted to talk with him. Two
union meetings followed, cards were signed, and on August
14 Tucker hand-delivered a letter (G.C. Exh. 7) to Adco ad-
vising Adams that his construction employees were engaged
in the protected activity of organizing. (1:33, 41, 106–111,
144.) In the letter, Tucker lists (in alphabetical order) nine
employees who ‘‘wish to be identified as members of the or-
ganizing committee.’’ Those named are:
Jeffery Calender John D. Newell
Raymond Langford Orby C. Renfroe Jr.
David Lewis LaFrance Smith
Eric Lott Cory D. Williams
Eric Muncy
Later we see that three of those named were job foremen:
Raymond Langford, David Lewis, and John D. Newell.
(Newell testified as a witness called in this case by Adco.)
That same August 14 Langford and others began wearing
union organizer badges (G.C. Exh. 11) and caps, which Buie
observed that day. (1:112–115.) As I discuss below, 3 days
later, on August 17, Adco fired Langford. Before me Adams
testified that Langford was fired solely because he was solic-
iting for the Union. (1:42.)
On August 27 Local 480, by Tucker, filed an election peti-
tion in Case 15–RC–7553 seeking to represent ‘‘All employ-
ees of the employer doing electrical work.’’ (G.C. Exh. 2;
1:27.) NLRB Region 15 issued an October 31 Decision and
Direction of Election (DDE; G.C. Exh. 3), followed by an
Erratum (G.C. Exh. 4) on November 15, finding, among
other things, that Adco’s electrical foremen (the job fore-
men), are statutory supervisors and excluding them from the
unit. (G.C. Exh. 3 at 8.) Region 15 directed an election in
the following unit (G.C. Exh. 4 at 9):
All employees employed by the Employer including
electricians, electrical apprentices, shop men, and serv-
ice men; excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined in
the Act.
By Order dated March 22, 1991, the Board denied Adco’s
request for review. (G.C. Exh. 5.) On April 1 the Board
issued a correction order to reflect Member Raudabaugh’s
partial dissent. (G.C. Exh. 6.) No election has been held be-
cause of the blocking charge. (1:14–15; 2:408.)
Earlier, at footnote 3, I postponed giving my reasons for
striking Adco’s Appendix A, attached to its posthearing
brief, as an outside-the-record hearsay document improperly
submitted. First, any proposal to reopen the record to receive
newly discovered and previously unavailable evidence should
be by motion with copies and notice to opposing counsel
rather than by attachment to a brief. (The procedure is the
same as for exceptions at the Board level. For the procedure
there, see Oregon Steel Mills, 300 NLRB 817 fn. 3 (1990),
and Board Rule 29 CFR 102.48(d)(1).) Second, a proper con-
text for the four pages of testimony submitted could well re-
quire many additional pages. (Although purported page num-
bers are given, Br. at 26, the attached copies slice off the
page numbers in the photocopying process.) Compare Reeves
Bros., 277 NLRB 1568, 1573 (1986), where the entire tran-
script from the representation case was introduced as a joint
exhibit.
Third, as the General Counsel was not a party to Case 15–
RC–7553, the purported excerpts of testimony are hearsay as
to the General Counsel who had no opportunity to cross-ex-
amine the witness, apparently General Superintendent Buie.
Fourth, the testimony there was not given before me, and I
would be unable to assess the demeanor of the witness. Al-
though this reason may not be, by itself, a basis to strike if
a submission is otherwise proper, it definitely is a factor
which must be considered when weighing a motion to re-
open. Finally, although I may take official notice of Board
proceedings on proper request, official notice, even if taken
of transcript pages or exhibits submitted from the record in
Case 15–RC–7553, would not overcome all the deficiencies
I have enumerated.
b. Any conflict of interest irrelevant
As mentioned earlier, Adco disputes that the Union can be
classified in this case as a labor organization. This is so,
Adco contends, because Local 480 subsidizes Adco’s com-
petitors. Company’s argument is irrelevant in this discharge
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The DDE does not give the date of the hearing. For the limited
purpose of reporting the date, I note that in Adco’s November 13,
1990 request for review (part of R. Exh. 2, rejected), Adco states
that the representation hearing was on September 19, 1990.
case. Some background description will assist in under-
standing Adco’s position.
At the hearing on the Union’s election petition in Case
15–RC–7553, as the DDE reflects,5 Adco made an offer of
proof that the Union operates a job targeting program in
which the Union shares with a union contractor the cost of
wages on certain projects where the union contractor is com-
peting against a nonunion contractor for the work. That cre-
ates a conflict of interest between Local 480 and Adco,
Company asserted, making Local 480 ineligible to represent
Adco’s employees.
Citing and quoting from cases which define a disquali-
fying interest, the DDE goes on to find that there is no dis-
qualifying interest here because if the Union is certified
Adco would no longer be a nonunion contractor and the
Union would no longer be in competition with Company. Al-
though Adco’s offer of proof included a contention that it
would not be allowed to participate in the Union’s job tar-
geting program, the DDE found no basis in the offer of proof
for that conclusory claim. (G.C. Exh. 3 at 2–4.)
Before me Adco also sought, by subpena duces tecum (R.
Exh. 1), to obtain the Union’s records on this issue. I sus-
tained the objections of the Union and the General Counsel
that the matter is irrelevant. (1:8–21.) Whether clarifying its
representation offer or simply reiterating it, our record does
not show, but Adco’s offer of proof before me states, in part
(1:21–26; R. Exh. 2):
If the witness [C. L. Tucker, Local 480’s business man-
ager] were allowed to testify, he would say that the
union has a job targeting program in accordance with
the program attached hereto in Exhibit A and that the
union would exclude respondent from its job targeting
program until and unless respondent agreed to join the
multi-employer bargaining unit and agreed to be bound
by the union’s agreement with the multi-employer bar-
gaining association. Respondent would further establish
through the testimony of this witness that if respondent
refused to join the multi-employer unit, or if respondent
was vetoed from becoming a member of the multi-em-
ployer unit (by either the union or a participating em-
ployer), the union would continue to subsidize respond-
ent’s competitors through the job targeting program.
It was on this issue that Member Raudabaugh partially dis-
sented, as reflected in the Board’s April 1, 1991 order cor-
recting (G.C. Exh. 6):
I would grant the Employer’s Request for Review of
the Regional Director’s Decision and Direction of Elec-
tion. Contrary to my colleagues in the majority, I would
accept the Employer’s offer of proof.
The Employer sought to show that the Petitioner
subsidizes the wages of contractors who, as part of a
multi-employer unit, are parties to a multi-employer
contract with the Petitioner. The purpose of the subsidy
is to permit such contractors to compete with contrac-
tors who are not parties to such a contract. If the Peti-
tioner were certified and if the Employer chose to exer-
cise its statutory right to refrain from joining the multi-
employer group [footnote 1 omitted], the Employer
would not receive a subsidy but its direct competitors
would do so. Blessed with such a competitive advan-
tage, the competitors would be in a position to effec-
tively underbid the Employer for jobs, thus injuring not
only the Employer but also the very unit employees os-
tensibly represented by the Petitioner.
In view of the above, I would permit the Employer
to adduce the evidence.
At the instant hearing I rejected Adco’s offer of proof.
(1:26.) That ruling is based on my earlier ruling sustaining
the objections of the General Counsel and the Union and, in
effect, quashing the subpena duces tecum. (1:19–20.) That is,
I sustained objections that the matter is irrelevant. This case
alleges discrimination because of protected concerted activi-
ties; there is no refusal to bargain allegation.
Nevertheless, Adco’s point is interesting and, counsel as-
serts, unprecedented. (1:19.) Adco’s argument is that the
union activities of the employees are not protected because
the union, Local 480, for whom the employees were orga-
nizing, stands in the position of being a competitor of Adco.
Counsel concedes he has no authority for the proposition,
and the General Counsel asserts that even if Respondent’s
competitor contention were true it would not render the orga-
nizing activities of the employees unprotected. (1:18–19.)
Adco does not expressly contend that the organizing ac-
tivities of the employees constitute disloyalty (assisting
Adco’s competitors while drawing paychecks from Adco) so
as to render unprotected their concerted activities. On the
topic of disloyalty as unprotected activity, see Morris 1, The
Developing Labor Law, 160–164 (2d ed. 1983, ABA), and
its fifth supplement, 1982–1988 (1989, ABA) at 73–76. Re-
jecting Adco’s conflict-of-interest argument as irrelevant in
the context of this case, I find that Adco has failed to show
the organizing activities here to be unprotected.
B. Allegations of 8(a)(1) Coercion
1. General Superintendent W. R. Buie
a. Allegation
Complaint paragraph 7 alleges that about July 24 Adco,
acting through General Superintendent Buie at a jobsite, ‘‘in-
terrogated its employees regarding their union membership,
activities and sympathies.’’ Electrician apprentice Eric
Muncy testified in support of this allegation.
b. Facts
Eric Muncy worked as an electrician apprentice for Adco
for less than 2 months, from July 26 to September 17, 1990.
(2:236.) About July 24 Muncy interviewed with super-
intendent Buie in Buie’s office. (2:236–237, 296.) When ap-
plying for employment with Adco, Muncy named a union
contractor, Thompkins Electric, as a former employer.
(2:237, 274–275, 297.)
Seeing the reference to the nonunion contractor, Buie ad-
mits, Buie told Muncy that Adco is a nonunion contractor.
Buie so advised Muncy because Buie did not think Muncy
knew that fact, and he denies asking Muncy his feelings
1117ADCO ELECTRIC
6 The eight factors applied by the Fifth Circuit derive from Bourne
v. NLRB, 332 F.2d 47 (2d Cir. 1964). See General Motors, supra,
and Fiber Glass Systems, 298 NLRB 504 (1990).
7 See also Heck’s, 293 NLRB 1111, 1119–1120 (1989), and La
Quinta Motor Inns, 293 NLRB 57 (1989)
about unions or whether Muncy was a union member.
(2:297.)
Buie acknowledges that when interviewing new hires he
covers several items, including company policy—Adco’s em-
ployee handbook. (2:299, 352.) As quoted earlier from that
handbook, Adco’s stated policy is to remain nonunion. Al-
though the record is unclear whether Buie covers the hand-
book policy with applicants before or after he tells them they
are hired, that point has little relevance here because Muncy
was hired. The issue here is whether Buie’s procedure tends
to corroborate Muncy’s version or that of Buie. I find that
it tends to support Muncy.
Muncy testified that Buie, observing the union contractor’s
name on the application, asked Muncy his feelings about
unions. Muncy answered that he had nothing for or against
them. Buie stated that at Adco unions were disliked and
would not be tolerated. Buie then asked if Muncy currently
was a member. ‘‘No,’’ replied Muncy. Buie then hired
Muncy as an apprentice to start July 26. (2:237.)
Noting that Buie’s admissions, along with his procedure of
covering the company policy handbook with new hires, tend
to corroborate Muncy’s version, and observing that Muncy
was a more persuasive witness than was Buie, I credit
Muncy over Buie.
c. Analysis and conclusions
Asserting (without articulation) that, even if Muncy is
credited, Buie’s questions are not coercive, Adco (Br. at 22)
relies on General Motors Corp. v. NLRB, 596 F.2d 1295,
1309–1310 (5th Cir. 1979), and Sunnyvale Medical Clinic,
277 NLRB 1217 (1985). Assuming that the Board’s ‘‘totality
of circumstances’’ test is to be applied (similar to the Fifth
Circuit’s Bourne factors),6 it must be applied while recog-
nizing the special situation of job applicants. Muncy was a
job applicant, and the Board has long recognized that job ap-
plicant ‘‘may understandably fear that any answer he might
give to questions about union sentiments posed in a job inter-
view may well affect his job prospects.’’ United L-N Glass,
297 NLRB 329 fn. 1 (1989).
Under any test Buie’s questions are coercive. Practically
every one of the Bourne factors calls for a finding of a viola-
tion. Only factor 5, ‘‘the truthfulness of the employee’s re-
sponses,’’ does not compel such a result here because it is
not clear Muncy lied in responding. The first factor, history
of the employer’s attitude toward its employees, contains no
findings of violations of the Act, but Adco’s nonunion policy
positions the Company at the edge of a slippery slope.
Factor number 2, the type of information sought, points to-
ward unlawfulness because it was Muncy’s statutory rights
inquired about in the context of a job interview. Factors 3,
questioner’s rank, and 4, place and manner, are adverse to
Adco. Buie is, and was, the hiring superintendent and second
only to owner Adams. The interview was held in Buie’s of-
fice and was conducted in the formal manner of a job inter-
view rather than in the manner of a casual conversation be-
tween friends on the shop floor.
Factors 6 (valid purpose?), 7 (if so, communicated?), and
8 (assurance of no reprisal for union support) are heavily
against Adco. Buie’s purpose was to see that Muncy con-
formed to Adco’s nonunion policy. In effect, Buie presented
Muncy with a ‘‘yellow dog’’ contract situation—an employ-
ment condition outlawed by Congress 59 years ago with the
1932 Norris-LaGuardia Act. Eddyleon Co., 301 NLRB 887
fn. 4 (1991), not to mention Section 8(a)(1) of our own stat-
ute.7 The purpose communicated therefor, far from being
valid, was unlawful—an implied threat of no hire if Muncy
answered favorably to unions. (The complaint does not allege
an unlawful threat.) Finally, far from assuring Muncy that no
reprisals would be taken for support of a union, Buie said
unions would not be tolerated at Adco. Any job applicant
smart enough to find the restroom would have no trouble un-
derstanding that message—no union supporter will be hired
by Adco! Accordingly, I find that, as alleged, Adco violated
Section 8(a)(1) of the Act by General Superintendent Buie’s
July 24, 1990 questions of job applicant Eric Muncy.
2. President W. Whitman Adams Jr.
a. October 1990 gag rule on union talk
(1) Allegations
Complaint paragraphs 8 and 9, together, allege that about
October 4 and 5, ‘‘by verbal announcement,’’ Adco promul-
gated, and has maintained, a rule prohibiting employees from
discussing the Union. Adco did so in order to discourage its
employees from joining, supporting, or assisting the Union,
and from engaging in other concerted, protected activities.
By the conduct, it is alleged, Adco violated Section 8(a)(1)
of the Act. Complaint paragraph 13, based on this same inci-
dent, alleges that a ‘‘verbal’’ warning issued to LaFrance
Smith on October 4. That warning, it is alleged, violated
Section 8(a)(3) and (1) of the Act. Adco denies the allega-
tions. LaFrance Smith testified in support of the allegations.
Because the allegations are based on the same incident, I
shall address here the discrimination allegation as well as the
interference allegation.
(2) Facts
Adco’s handbook contains a no-solicitation rule (G.C. Exh.
8 at 25), headlined, in all capitals, ‘‘Obey Our Solicitation
And Distribution Rules,’’ reading:
No employee may solicit another employee for any pur-
pose while either employee is on working time. The
distribution of hand bills or other literature during
working time or in working areas if [is] forbidden.
LaFrance Smith worked for Adco from February 4, 1989,
to February 3, 1991, in the shop and also in the field as an
electrician apprentice. In August 1990, through the efforts of
alleged discriminatee Raymond Langford, Smith began at-
tending union meetings, wearing union insignia, and distrib-
uting literature. (1:194–197.)
Smith testified that on October 4 owner Adams ap-
proached him at 3:47 p.m. as Smith was loading his truck
at the end of the day’s work. Adams confronted Smith with
the accusation that two of Adams’ longtime employees had
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
informed him Smith was talking about union activities while
on company time. When Smith denied the accusation, Adams
told him to consider this ‘‘a verbal warning.’’ (1:197–198;
2:218.)
Acknowledging the incident, Adams asserts that he con-
fronted Smith in the parking lot at the front of the office be-
cause two of his employees had reported that Smith was
making a real nuisance of himself on the jobsite by leaving
his work in order to approach other employees, keeping them
from working, for soliciting. Adams concedes he told Smith
that such conduct would not be tolerated on the job and to
consider himself warned, that there would be no other warn-
ing. (2:430–431.)
The following afternoon, Smith testified, Smith went to
Adams and asked for the names of the two ‘‘perpetrators.’’
Adams replied that he would not disclose their names be-
cause he was taking no action against Smith. When Smith
then asked how he could protect himself from the two,
Adams said that Smith was in the gray area, not the black
and not the white. (1:199–200; 2:217.) Adams denies there
was any second conversation in which black, white, or gray
was mentioned. (2:431–432.)
Smith identified a written warning (G.C. Exh. 15) which
he received the afternoon of January 10, 1991, from Foreman
John W. Harrison. (1:201–202; 2:219.) Smith admits he was
tardy by a few minutes that morning according to Harrison’s
watch. (1:202; 2:219.) The warning describes Smith’s unsat-
isfactory performance as, ‘‘Reporting to job after starting
time.’’ Additionally, and the part relied on here by the Gen-
eral Counsel, Harrison initially had followed that statement
with, ‘‘Talking to fellow employee about union activity in-
stead of working.’’ That reason is crossed through. As Smith
testified, he told Harrison he would not sign unless Harrison
explained what he meant by the allegation Smith was talking
about union activities rather than working. When Harrison
said it was based on Smith’s telling Eric Lott he was going
to file an NLRB charge over not receiving a pay raise, Smith
told Harrison that report was false because he in fact had re-
ceived a raise. Harrison then crossed through that part and
they both initialed the strike-through. (1:202–204.)
Smith (1:205–206), Eric Muncy (2:264), and alleged
discriminatee Cory D. Williams (2:291–293) testified that
employees could talk about anything at work. Muncy de-
scribes an exception—talking about union on company time.
As Muncy makes clear on cross-examination, however, that
restriction was given the employees by Union Representative
Tucker, perhaps as an overly safe precaution to protect their
jobs. (2:264, 273–274.)
Bearing on the credibility and possible bias of Smith are
the facts that, just before he was hired by Adco, Smith had
been released from prison after serving 3 years of a 15-year
sentence for armed robbery; that Adco had terminated him
in February 1991 for theft of company property, a charge de-
nied by Smith; and that Adco had filed a criminal charge
against Smith over the alleged theft, which charge is cur-
rently pending. (2:220–221.)
(3) Analysis and conclusions
I shall dismiss these allegations. First, I credit Adams rath-
er than Smith. As a witness Smith was unpersuasive. Second,
complaint paragraphs 8 and 9 allege that Adco promulgated
a gag rule on union talk. As Adams’ credited version re-
flects, he orally warned Smith not to leave his work and go
interrupt others in his solicitation efforts for the Union. Al-
though the record shows that employees could talk about
anything as they worked, there is no evidence Adco has ever
tolerated employees’ leaving their work to interrupt those
who were working for the purpose of talking or soliciting for
some cause. Thus, I find that Adams simply was enforcing
Adco’s valid no-solicitation rule.
Harrison’s understanding of Adco’s no-solicitation rule
may well have been incorrect, but he amended the January
10, 1991 warning to strike that basis. Harrison’s isolated, and
temporary, reference does not demonstrate that Adams had
promulgated an unlawful gag rule in October, although it
would have tended to support Smith’s evidence had I cred-
ited Smith. Moreover, it is clear that much of any confusion
among the employees as to what Adco’s no-solicitation rule
meant came directly from Union Representative Tucker.
The evidence failing to demonstrate any promulgation of
a gag rule, I shall dismiss complaint paragraphs 8 and 9.
Finding that Adams, on October 4, was merely giving notice
that he would enforce Adco’s valid no-solicitation rule, I
shall dismiss complaint paragraph 13, the ‘‘verbal’’ warning
allegation.
b. November 15, 1990 no-pay-raise statement
(1) Allegation
Complaint paragraph 10 alleges that about November 15
Adams informed employees that ‘‘they could not be given a
raise because of the Union.’’ Adco denies. Eric Lott testified
in support.
(2) Facts
Eric Lott has worked for Adco since January 1988. (1:155,
186.) Lott testified on direct examination that, in November
at the McCarty Farms jobsite, he and Adams had a conversa-
tion in which he suggested to Adams that Adams recognize
the Union so that Adco could get bigger projects. Adams
said he was happy with his company, that if Lott ‘‘wanted
it to go union that that was fine; the best thing for [Lott] to
do was quit and go union. See if they will have you at the
hall then.’’
Continuing, Lott testified that he asked Adams about a pay
raise. Adams said he was unable to give raises at the time
because of the cost of the union movement. (1:169.) On Au-
gust 20, 3 days after his discharge, Raymond Langford re-
turned to Adco and had a conversation with Adams.
Langford secretly tape-recorded the conversation. (1:121.)
The tape (G.C. Exh. 12) and a 20-page transcript (G.C. Exh.
13) are in evidence. During the taped conversation, Langford
stated that ‘‘this’’ (resisting the Union’s organizing cam-
paign) is costing him (Adco) a fortune. (G.C. Exh. 13 at 12,
20.) (Ironically, much of the tape/transcript amounts to an
expanded version of Adco’s offer of proof on the union-com-
petitor issue. The tape transcript reflects the bitter comments
of Adams in this respect.)
Responding to leading questions on cross-examination,
Lott testified that Adams said it would be illegal for him to
give Lott a raise at that time, that it would be an unfair labor
practice, and illegal to give a raise that had not already been
planned or scheduled before the union movement had started.
1119ADCO ELECTRIC
Moreover, Adams contrasted a raise with the giving of a
401(k) benefit because the latter had already been planned.
On redirect examination Lott initially repeated this, saying
he believed Adams ‘‘said it would be unfair; said that it
would be wrong because it wasn’t planned; something like
that.’’ (1:189.) Although Lott thereafter concedes that his
November 20 pretrial affidavit (G.C. Exh. 14) does not quote
Adams as saying it would be illegal or an unfair labor prac-
tice to give Lott a raise (1:190–191), re-cross-examination
elicits the fact that Lott’s November 20 account does quote
Adams as saying his ‘‘hands were tied.’’ (1:192.)
Acknowledging a mid-November conversation with Lott at
the McCarty job, Adams agrees that Lott asked for a pay
raise. ‘‘And what I told him,’’ Adams testified, ‘‘was that at
this time, that I couldn’t, that if I changed the wages, hours,
or working conditions at any time during this campaign, that
it would be an unfair labor practice.’’ The 401(k) plan was
being changed, Adams explained to Lott, but that had been
put into effect before any notice of the union campaign.
Adams testified that Adco’s established policy is to review
wages of journeymen and apprentices every January and
June. (2:432–433, 463–464.) Superintendent Buie confirms
the January/June review schedule. (2:325–326.)
Lott testified that normally wage increases are given at the
first of the year. (1:1284–185.) Alleged discriminatee
Langford testified that about mid-July he recommended to
superintendent Buie that his apprentice, Sonny Renfroe, be
given a pay increase. A month or so later Renfroe received
a pay increase and, Langford thinks, so did all the appren-
tices. (1:94-95.) Neither party offered any pay records.
(3) Analysis and conclusions
An employer violates Section 8(a)(1) if it attributes to a
union the employer’s failure to grant a benefit. Hovey Elec-
tric, 302 NLRB 482 (1991). By contrast, there is no violation
if the employer attributes the failure to an effort to comply
with Board guidelines. Hovey, id. Citing Hovey, the General
Counsel acknowledges that there is no violation here if
Adams told Lott he could not be given a raise because it
could be interpreted as an unfair labor practice or as a viola-
tion of the Board’s rules. (Br. at 41.) Arguing that Lott’s tes-
timony on cross-examination was given only to please his
employer in order to preserve his job, the General Counsel
in effect contends that, in light of Lott’s November 20 affi-
davit-version, recorded less than a week after the incident,
Lott’s version on direct examination should be credited.
Lott’s November 20 version reports that Adams said his
hands were tied. That, I find, is simply a shortened version
of the description Adams gives in his testimony—that it
would be an unfair labor practice for him to grant a pay raise
at that time. In short, I credit both Lott and Adams. Thus,
I find that the first reason Adams gave (before saying his
hands were tied, that it could be interpreted as an unfair
labor practice) was that he could not afford to give a raise
because of the cost of fighting the Union’s organizing cam-
paign. Whether Adams then recalled advice from counsel the
record does not disclose, but I find that Adams then added
the lawful reason.
The first reason—cost of resisting the Union’s organizing
campaign—places the burden on the Union. That reason is
illegal. The second reason is lawful. Perhaps it is instructive
to observe that the first reason not only meets the memory
rule of primacy, but also the memory rule of an understand-
able concept—money cost. Those memory factors apparently
influenced Lott more than the more difficult concept which
Adams then added as the second reason. Adams having
poisoned his own answer with an unlawful first reason, Adco
may not now escape liability on the basis that the second
reason is lawful. Accordingly, I find that, by Adams’ mid-
November reply to Lott, Adco violated Section 8(a)(1) of the
Act, as alleged.
C. Allegations of 8(a)(3) Discrimination
1. August 17, 1990 discharge of Raymond Langford
a. Introduction
Raymond Langford began working for Adco in mid-March
1989. Adco fired him on August 17, 1990. (1:50.) His termi-
nation slip states, ‘‘Fired for solicitation.’’ (G.C. Exh. 9.)
The sole factual issue respecting Raymond Langford is
whether he was a statutory supervisor. Owner Adams admits
that the only reason Adco fired Langford was that he was
soliciting for the Union. (1:41–42; G.C. Exh. 9.) Adco does
not contend Langford’s discharge was not unlawful, even if
he was not a supervisor, because he violated Adco’s no-so-
licitation rule. Thus, the no-solicitation rule itself does not
figure in Langford’s case.
Earlier I mentioned the October 31 DDE (Decision and
Direction of Election, G.C. Exh. 3) and the November 15 Er-
ratum (G.C. Exh. 4) in Case 15–RC–7553. In that representa-
tion case the Union, as the petitioner, sought to include the
job foremen in the unit whereas Adco sought to exclude
them as statutory supervisors. The job foreman class is there
described as consisting of five electrical foremen. Four are
named in footnote 6 (added by the Erratum): Bob Buie, Tony
Goodwin, David Lewis, and Joe Lewis, with the identity of
the fifth job foreman stated as not being clear from the
record. Langford is not named in the DDE, as corrected. Nei-
ther is John Dewayne Newell who has been a job foreman
since being hired, the second time, about June 1989. (2:404,
422, Newell.) Adams includes Newell when naming the job
foremen in the outside staff of 14, a staff number prevailing
at least since about late 1990. (2:363–364, 460.) Buie also
names Newell. (2:379.) Thus, the missing name from the
DDE, as corrected, may well have been Newell rather than
Langford.
The placement of Jeff Lewis, the temporary project man-
ager, also was disputed in the representation case. The Re-
gional Director excluded Jeff Lewis from the unit as an elec-
trical foreman. (G.C. Exh. 3 at 9.) It is clear that the Re-
gional Director found Adco’s electrical job foremen to be
statutory supervisors and that he excluded them from the bar-
gaining unit as a group falling within the statutory definition
of supervisor.
b. Applicable law
Even if the DDE (as corrected) had named Langford
among the excluded group of job foremen, the DDE is not
controlling here on the issue of Raymond Langford’s status
as a statutory supervisor. Both parties recognize that fact by
citing Serv-U-Stores, 234 NLRB 1143 (1978). The Board
held there that in cases such as this (that is, not an 8(a)(5)
testing of certification), a finding in the representation case
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on supervisory status may be relitigated in the complaint
case.
The General Counsel takes no position here respecting the
job foremen as a class, and litigates only as to Langford.
(2:309.) Adco takes the double-barreled approach that
Langford is a statutory supervisor because (1) Adco invested
job foremen as a class with statutory authority (2:314; Br. at
25), and (2) even in his own right Langford qualifies as a
statutory supervisor. Quoting from Serv-U-Stores, Adco as-
serts that the Regional Director’s finding should be accorded
‘‘persuasive relevance, a kind of administrative comity.’’ (Br.
at 26.)
Section 2(3) of the Act, 29 U.S.C. § 152(3), defines ‘‘em-
ployee’’ broadly, with certain exclusions. Supervisors are one
of the exclusions. Once it is shown that an individual works
for an employer covered by the Act, any party contending
that the worker falls within the statutory exclusion of super-
visors carries the burden of persuasion on that issue. Bay
Area-Los Angeles Express, 275 NLRB 1063, 1073 (1985);
Chicago Metallic Corp., 273 NLRB 1677, 1689 (1985),
modified on other point 794 F.2d 527 (9th Cir. 1986);
Purolator Products, 270 NLRB 694, 706 (1984). Compare:
Ohio Masonic Home, 295 NLRB 390 fn. 7 (1989).
Section 2(11) of the Act, 29 U.S.C. § 152(11), provides:
(11) The term ‘‘supervisor’’ means any individual hav-
ing authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, as-
sign, reward, or discipline other employees, or respon-
sibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection
with the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the
use of independent judgment.
The enumerated powers in Section 2(11) are to be read in
the disjunctive. NLRB v. McEver Engineering, 784 F.2d 634
(5th Cir. 1986); Amperage Electric, 301 NLRB 5 (1991).
However, possession of one or more of the stated powers
does not convert an employee into a 2(11) supervisor unless
the exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judgment.
Section 2(11); Electrical Workers IBEW Local 428 (Kern
County Chapter NECA), 277 NLRB 397, 408 (1985); Hydro
Conduit Corp., 254 NLRB 433, 437 (1981).
If a person actually possesses the statutory authority, then
he does not lose it by exercising it infrequently or even not
at all. Babcock & Wilcox Construction Co., 288 NLRB 620,
621 fn. 3 (1988); Groves Truck & Trailer, 281 NLRB 1194
fn. 1 (1986); Opelika Foundry, 281 NLRB 897, 899 (1986).
Nevertheless, ‘‘paper credentials’’ must be accompanied by
actual authority. NLRB v. Security Guard Service, 384 F.2d
143, 149 (5th Cir. 1967), and mere title and theoretical
power are insufficient. NLRB v. Southern Bleachery, 257
F.2d 235, 239 (4th Cir. 1958), enfg. 118 NLRB 299 (1957).
The status of an individual as a statutory supervisor, or not,
is determined by his or her actual duties, not by the job title
or classification. Waterbed World, 286 NLRB 425, 426
(1987); Metallic Corp., 273 NLRB 1677, 1688–1689 (1985),
enfd. on point 794 F.2d 527 (9th Cir. 1986). Thus, assign-
ment of a title and mere theoretical authority does not confer
supervisory status. Amperage Electric, supra. As the Fourth
Circuit phrased it in Southern Bleachery, 257 F.2d at 239,
quoting from Southern Bleachery, 115 NLRB 787, 793
(1956):
To the extent that the 1950 instructions attempted to
delegate to the machine printers power or authority be-
yond that of a craftsman, the absence, for all practical
purposes, of the exercise of such authority negatives its
existence.
Exercise of the authority which derives from a worker’s
status as a skilled craftsman does not confer supervisory sta-
tus because that authority is not the type contemplated in the
statutory definition. Chicago Metallic, supra at 1689; NLRB
v. Southern Bleachery, 257 F.2d 235, 239 (4th Cir. 1958). As
the Board wrote in Southern Bleachery, 115 NLRB 787, 791
(1956), ‘‘This authority derives from their working skill and
from their responsibility for the operation of a complex ma-
chine which requires a 7-year apprenticeship to achieve jour-
neyman status as a machine printer. It is not the type of au-
thority contemplated in the statutory definition of a super-
visor; it is not the authority responsibly to direct other em-
ployees which flows from management and tends to identify
or associate a worker with management.’’ And id. at 792:
The Board has therefore continued under the Taft-Hart-
ley Act to treat craft employees as nonsupervisory de-
spite the existence of recommendatory power over their
helpers, believing that to do otherwise would be to at-
tribute to Congress a result never intended.
Aside from the craft unit situation, if a person has the statu-
tory authority of a supervisor, the fact he supervises but a
single employee is immaterial. Opelika Foundry, supra.
Determination of supervisory status is a question of fact.
Monotech of Mississippi v. NLRB, 876 F.2d 514 (5th Cir.
1989). The powers enumerated in Section 2(11) are termed
the ‘‘primary’’ indicia. When the issue of supervisory status
presents a borderline question, ‘‘secondary’’ indicia may be
considered. Monotech, supra; NLRB v. Chicago Metallic, 794
F.2d 527 (9th Cir. 1986). Nevertheless, ‘‘secondary’’ indicia
alone will not confer supervisory status under the Act. John
N. Hansen Co., 293 NLRB 63, 64 (1989); Bay Area-Los An-
geles Express, 275 NLRB 1063, 1080 (1985); and implicitly
so held in Polynesian Hospitality Tours, 297 NLRB 228
(1989).
In these cases the Board has a duty to be alert not to con-
strue supervisory status too broadly because the employee
who is deemed a supervisor loses his protected right to orga-
nize, a right Congress intended to protect by the Act. Phelps
Community Medical Center, 295 NLRB 486 (1989). Bay
Area-Los Angeles Express, supra at 1073; Chicago Metallic,
273 NLRB 1677, 1689 (1985); and Hydro Conduit Corp.,
254 NLRB 433, 437 (1981), citing and quoting from
McDonnell Douglas Corp. v. NLRB, 655 F.2d 932 (9th Cir.
1981), and Westinghouse Electric Corp. v. NLRB, 424 F.2d
1151, 1158 (7th Cir. 1970).
c. Facts
(1) Company documents
Job descriptions are in evidence for electrical foreman (R.
Exh. 6) and electrician (G.C. Exh. 18). Owner Adams testi-
1121ADCO ELECTRIC
fied that he prepared the one for job foreman in about 1984.
(2:436.) Presumably he prepared the electrician’s at the same
time. The two are identical except for some five additional
duties for the foreman. Thus, the first eight items of both
read:
1. Provide safe work place for employees.
2. Enforce safety rules and company policy.
3. Insure that all work is in compliance with plans,
specifications, national electric code, and local codes.
4. Be responsible for quality control.
5. Maintain good company image regarding trucks,
job sites, and personal appearance.
6. Be responsible for starting work at 7:00 a.m.,
breaking 30 minutes only for lunch, and working until
quitting time.
7. Insure that all materials, tools, and manpower
have been requested to keep job progressing for a min-
imum of two days.
8. Return all unused material to shop.
Number 9 on the foreman’s description directs the fore-
man to ‘‘Maintain daily log and time sheet.’’ The elec-
trician’s description does not have that duty. Both are to
‘‘Help promote good morale.’’ (10 on foreman’s; 9 on elec-
trician’s.) Both are to ‘‘Maintain proper documentation in-
cluding change orders, extras, and receiving tickets.’’ (11 and
10, respectively.) Only the foreman (item 12) is directed to
‘‘Maintain proper crew sizes.’’
The foreman’s item 13 reads: ‘‘Be responsible for termi-
nating any apprentice or electrician working under you for
continuing non-compliance with company policy after ample
warning.’’ The electrician’s item 11 is almost identical, the
difference being the absence of ‘‘or electrician’’ following
‘‘apprentice.’’ Adams testified that the electricians indeed
have the authority to ‘‘get rid of’’ an apprentice. Even so
Adams does not consider a journeyman to be a supervisor if
he is not a foreman. (2:454–456.) Both classifications are to
‘‘See that all tools and materials are picked up at the end
of each working day by apprentice.’’ (Items 14 and 12, re-
spectively.) That concludes the electrician’s list, but the fore-
man’s list has three more duties: (15). Be responsible for re-
ceiving all materials at job site. (16). Be responsible for hav-
ing safety meeting weekly. (17). Be responsible for having
materials loaded for the next day, the afternoon before.
The organizational chart in Adco’s company (or em-
ployee) handbook (G.C. Exh. 8 at 29) shows four lines of
responsibility to the general superintendent. The shop is one.
The field has three, simply describing the possible normal
jobsite arrangements. The first is the electrical foreman/-
electrician/apprentice. Next comes the electrical foreman/ap-
prentice. The third and final is the electrician/apprentice.
Adams confirms that the chart means that a (journeyman)
electrician, with an apprentice, can be on a jobsite ‘‘by him-
self.’’ (1:40–41.) I understand Adams to mean that on some
small jobs there may be no job foreman.
Superintendent Buie identified a single-page Apprentice
Evaluation Form which Adco uses. (R. Exh. 7; 2:326, 377.)
Seven questions inquire about punctuality, work habits, the
foreman’s rating of his quality and speed, and (7) ‘‘Would
you recommend this apprentice for a pay increase at this
time? If yes, how much?’’ A printed statement advises that
the (foreman’s) evaluation ‘‘will be used in determining that
apprentice’s pay rate.’’ However, ‘‘His school work [appren-
tice school, apparently], attendance, and other factors will
also be considered.’’ A line is provided for the foreman’s
signature. The major problem here is that there is no conten-
tion Langford ever completed one of these forms, and no
copy signed by Langford (or any other foreman) was identi-
fied or offered. The second problem inheres with the form
itself, for it is clear that management will consider several
other factors. Thus, this form, without more, hardly con-
stitutes the ‘‘effective’’ recommendation specified in the stat-
ute.
Adco’s evaluation form is not the evaluation form the
foreman completes as to the apprentice for the ‘‘ABC’’ (As-
sociated Building Contractors) apprenticeship school. Adco
participates in the ABC school, and apprentices attend class-
es there 1 night a week on a 4-year training program. Adco
pays one-half the cost of the course if they pass. (2:325, 448;
G.C. Exh. 8 at 20.)
As I mentioned earlier in describing Adco’s organization,
the company/employee handbook (G.C. Exh. 8) refers at var-
ious points to employees’ ‘‘supervisor,’’ a person who,
Adams testified (2:436–439), is the job foreman.
The handbook advises employees to check with their su-
pervisor if they have any questions. (G.C. Exh. 8 at 6, 21.)
A grievance (‘‘problem solving’’) procedure is provided,
with the supervisor being the first step. Id. New employees
serve a 3-month probation. ‘‘Near the end of this period,
your Supervisor will discuss your performance with you. A
decision will be made, in our Firm’s discretion, about grant-
ing you regular employee status, extending your probationary
period, or terminating the employment relationship.’’ (G.C.
Exh. 8 at 9.)
Breaks are scheduled at the supervisor’s discretion. Id. at
10. If an employee desires to leave a jobsite or premises dur-
ing working hours, he first must notify and receive permis-
sion from his supervisor. Id. Employees are to report any job
injury or sickness to their supervisor, and are to present med-
ical releases to their supervisor on returning to work. Id. at
12. To help prevent accidents, employees are to report ‘‘to
your Supervisor any condition that you believe is unsafe or
unhealthy.’’ Id. at 12, 22.
Equipment malfunctioning or needing maintenance is to be
reported to the supervisor. Id. at 13. Vacations ‘‘must be
scheduled and approved in advance by your Supervisor.’’ Id.
at 17. Requests for a leave of absence must be presented to
the supervisor. Id. at 18. Employees who are going to be
tardy or absent are to notify their supervisor. Id. at 26.
Following the organization chart at 29, the handbook be-
gins describing Adco’s safety policy. A separate page, 31, is
devoted to the supervisor’s responsibilities. The text there be-
gins, ‘‘The supervisor represents the entire company to the
employee.’’ The final pages apparently were added after
1984, for the term used is ‘‘foreman’’ or ‘‘job foreman’’
rather than ‘‘supervisor.’’ Thus, the ‘‘foreman’’ shall check
fire extinguishers weekly to ensure they remain fully
charged. Id. at 37. Anyone violating a safety rule will be dis-
ciplined in the following manner. ‘‘1. A verbal warning will
be given by superintendent or job foreman.’’ Id. at 38. For
the second step in the progression, a written warning will
issue—but there is no reference by whom. For a suspension
(third step) and discharge (fourth step) the same holds true.
Id.
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The discipline described for safety violations is a separate
provision from Adco’s disciplinary policy and work rules
fully described earlier in the handbook at 21–27. Although
employees are there advised to address any questions about
the standards of conduct and attendance to ‘‘your Supervisor
or Superintendent’’ (id. at 21), the possible discipline—any-
thing from an oral counseling to discharge—is not accom-
panied by naming which level of management may impose
which form of discipline. Moreover, no provision states that
a supervisor or job foreman may administer any of the
forms, even an oral counseling, although authority by
supervisors/job foremen to administer oral counselings seems
to be implied from the document as a whole.
(2) Authority described
What the handbook fails to state, the job description for
the job foreman, as earlier quoted, provides. Thus, item 2
empowers the foreman to enforce safety rules and company
policy, and item 13 charges the foreman with the duty to dis-
charge any electrician or apprentice, working under the fore-
man, who continues, after ample warning, to violate the
rules. Owner Adams testified that the job foremen (as a
class) have the authority listed in their job description
(2:436). Buie testified that all the electrical foremen have the
same authority (2:300). Adams agrees. (2:439.) And Buie as-
serts that the foremen actually perform the duties specified
in the job description. (2:307.)
Buie (2:347–348) and Adams (2:452–453) testified that
Langford possessed the same authority specified in the job
description and by the other job foremen. The irony is that
this apparently confirms for the journeymen electricians that
they, as their job description states, are empowered—indeed,
expected—to fire any apprentice who, after ample warning,
fails to comply with company policy. Even if that authority
applies only to the small jobs where the journeyman is not
a job foreman, the job descriptions ostensibly render nearly
everyone a statutory supervisor. For the most part, only the
hapless apprentice would be protected by the Act.
Foreman John Dewayne Newell testified that about 6 years
ago he fired apprentice Marty Ellington from a 6-man crew
because he was talking rather than working, and that he fired
apprentice Neal Petigrew about 4 months before the hearing.
(2:405, 427–429.) The record does not show whether Newell
actually ‘‘vetoed’’ the helpers from his crew, leaving it to
the superintendent to transfer or to discharge. I note Newell’s
revealing statement that Buie only ‘‘sometimes’’ honors his
request to remove someone from his crew. (2:242.) I find
Newell’s testimony about discharging employees to be unre-
liable. Serviceman Bill Serber testified that when he was a
job foreman, in the days when Danny Steagall was the super-
intendent, he discharged Mel Windham for poor work per-
formance. That was some 4.5 years ago. (2:385–386.) As
earlier noted, the General Counsel did not seek to litigate as
to the class of job foreman, but only as to Langford. Thus,
the Government made no attempt to rebut evidence about the
class.
Adco holds supervisor meetings where Buie confers with
the job foremen. Adams attends these meetings on occasion.
(2:308.) Buie testified that he holds these meetings with all
job foremen, including Langford, about three to four times
a year. At these meetings, Buie testified, he reports on jobs,
on how the Company is doing, and discusses some of the re-
sponsibilities of the foremen. (2:308–309, 367–368.) Newell
testified that at some of these meetings Adams and Buie told
the foremen to ‘‘weed out’’ the ‘‘deadwood.’’ Newell saw
Langford at three or four, perhaps more, of these meetings,
he testified. (2:413, 417.) Initially Newell asserted that the
meetings are held each month, or 12 a year, with 16 or 17
such meetings while Langford was employed. Later, how-
ever, Newell modified this to say that Langford attended all
those Newell did, that the meetings were not always every
month, and that while they both attended at least 4 of the
meetings, the number definitely was not 16. (2:412, 418–
420.) Newell tends to exaggerate, and I find him to be unre-
liable.
Adams agrees that at some of these meetings he has told
the foremen to ‘‘weed out’’ the ‘‘deadwood,’’ and those who
would not make good electricians. (2:442.) Langford testified
that the only such meeting he attended was on May 15,
1989, as evidenced by his daily log for that date (R. Exh.
5), and that it followed a general employee meeting about in-
surance. (1:147–149, 151–152.) He asserts that at this fore-
men’s meeting Adams did refer to apprentices who the fore-
men did not consider good prospects for making electricians.
Adams asked the foremen to let him know about these per-
sons so he could ‘‘do something else with them.’’ (1:148–
149.) I credit Langford, a persuasive witness.
(3) Raymond Langford
(a) General
Langford, 45 years old, started his career in this field as
an electrician’s helper 28 years ago. (1:97.) His Adco job ap-
plication (R. Exh. 3, signature page not included) reflects
that he has a master’s license. He applied for the position of
‘‘foreman.’’ (R. Exh. 3; 1:134–135.) Langford actually inter-
viewed first, on March 16, 1989, with Adams who said he
wanted Langford to come to work for him. (1:50–51.) There
is uncertainty in the record concerning his first day at work,
and dispute about the job description. Langford recalls that
he started work the next day, March 17. He met with Buie,
filled out an application form, and Buie gave him a copy of
the handbook and a few items to ‘‘read through.’’ Buie went
over some of the documents, but ‘‘skipped over’’ some of
the items. Buie told Langford to read the materials and be
familiar with them, but a job description was not contained
with the papers. Buie never discussed with him any author-
ity, such as any authority to discharge. However, Langford
concedes that he was hired as a foreman to ‘‘run work’’ for
Adco. (1:51–54, 135.)
Buie testified that Adams alerted him to Langford’s ar-
rival, that Adams essentially had hired Langford as a job
foreman, that Langford completed an application with Buie
and Buie went through the new-hire orientation with him, in-
cluding the handbook ‘‘almost page by page,’’ but not all 17
items on the job description, although he did give Langford
a copy of the description. (2:347, 351–353.)
A block for ‘‘company use’’ on Langford’s application
form reflects that he was hired on March 16, 1989, a Thurs-
day, with a starting date of March 20, a Monday. Apparently
completed by Buie, who signed the block, Buie checked the
item showing Langford’s job classification as ‘‘Electrician,
Supervisor.’’ (R. Exh. 3.) Langford apparently had been re-
ferred to Adco by Mississippi’s employment security office,
1123ADCO ELECTRIC
for on April 4, 1989, he signed one of their forms affirming
that he had been hired as an ‘‘Elec. Foreman’’ with a start-
ing date of ‘‘3–20–89.’’ (R. Exh. 4; 1:136–139.) To the ex-
tent that it matters, I find that Langford’s first work day was
on March 20, 1989, although he possibly met with Buie and
filled out the application on March 17. I credit Langford that
Buie did not tender him a copy of the job description.
Langford names and describes the major jobs he worked
on in his 17 months at Adco (mid-March 1989 to mid-Au-
gust 1990). Most of the time it was just Langford and an ap-
prentice (different ones) working when Langford had the
blueprints and was in charge. At times Buie would determine
when extra men were needed and send them over, Langford
testified. For example, Langford’s first job was at JMS
Trucking, and it lasted 3 months. Except for two occasions
when Buie sent help, it was just Langford and an apprentice.
On one occasion Buie sent out two others to assist. They
were there for 3 to 5 days. On the other occasion Buie sent
four or five to help pull wire for 1 or 2 days. (1:55–56, 90.)
Langford testified that when he had the blueprints (was in
charge of the job) he, as the more qualified person, directed
the work of his apprentice. (1:135–136.) There is little evi-
dence in the record about the relationship on Langford’s jobs
(when he had the blueprints) on those few occasions when
one or more other crews (consisting of a job foreman and
an apprentice) were sent to the job to help. With a foreman’s
level of experience being high, presumably either Buie or
Langford assigned them a section of the work and that was
it.
As for overtime, on jobs where Langford was in charge
(normally just he and an apprentice), he once or twice held
his crew over for 1 or 2 hours to finish the work. But that
was to save trip time in accordance with Buie’s preset pol-
icy. Saturday overtime was at Buie’s direction. (1:86–87.)
Even foreman Newell testified that management normally
made the decision respecting overtime. Only two or three
times, ‘‘very rare,’’ has he decided on his own without clear-
ing with Buie. (2:425–427.) Of course, Newell may be a stat-
utory supervisor. His status is not litigated here.
Langford and apprentice Renfroe worked at a Hughes Air-
craft job in Forest, Mississippi, when foreman Newell was in
charge of the job. This was in the period of mid-July to early
August 1990. Journeyman Cory D. Williams rode to the job-
site with David Lewis. Although, as earlier noted, Buie and
Adams list Lewis as one of the job foremen, Williams knew
him only as a journeyman, the same as he knew Langford.
Williams observed that Langford worked pulling wire and
giving directions on to his apprentice, ‘‘Sonny’’ Renfroe.
Williams likewise gave directions to his apprentice, Neal
Petigrew. (2:278–282.)
On that same Hughes job in Forest, Eric Muncy worked
as an apprentice for foreman Newell. Muncy describes an oc-
casion, apparently in early August, when the crews were
working Saturday overtime. About 2:30 p.m. Newell told
Muncy that Muncy and two other apprentices plus Langford
would work later than the other 12 or so employees who
were working that day. Although Newell did not say who
would be in charge of the four remaining in Newell’s ab-
sence, Muncy assumed it would be Langford because he was
the only journeyman remaining. Muncy, Langford and the
others pulled computer or telephone wire until 5:30 p.m. Al-
though Langford gave basic instructions, pulling wire is not
skilled work, Muncy testified. (2:238–241, 267–268.)
Buie (2:321) and Adams (2:445, 465) testified that the job
foreman is the one who determines the staffing level. He
conveys that need to Buie who supplies more men, or finds
a place to transfer those no longer needed. One reason for
this is the job completion bonus. Only the job foremen are
eligible to receive the job completion bonus, and then only
if the job is completed timely and under budget. (2:304–305,
373, 376, 441.) As Buie (2:322) and Adams (2:445) testified,
if too many persons are working on the job the budget will
be exceeded. Langford admits he was told at his hiring about
the completion bonus policy, but he never received one.
(1:142–143; 2:331.)
Foremen receiving a bonus have the discretion whether to
share it with anyone on their crew. The common practice is
for them to do so. (2:394–395, Serber.) The handbook does
not mention a job completion bonus. It does describe a bonus
plan for which all regular full-time employees are eligible.
It is paid at Adco’s discretion, and when business warrants,
‘‘to individuals judged as responsible for company profit-
ability.’’ (G.C. Exh. 8 at 15.) That bonus is in addition to
Adco’s profit sharing plan, in which employees become 100
percent vested after 10 years. Id.
Langford’s second job was at the United Way office where
he worked intermittently for 6 months with an apprentice.
Three times the work force there expanded when Buie as-
signed extra people. The largest the force became was six,
with three foremen and three apprentices there for a day or
two. The longest time any extra help worked was for about
2 weeks when an additional crew of a foreman and appren-
tice was there. (1:58–60.)
Langford worked several Hughes’ jobs. One was in July
1990 (telephone and data system). Just he and an apprentice
worked there. It was the second of only two Hughes’ jobs
where he was in charge. (1:64–65.) On one Hughes’ job, in-
stalling lights in a mezzanine area, Job Foreman Newell was
in charge. At one time there were four crews on the job, four
foremen plus four helpers. Langford worked there for a week
or two in May or June 1990. (1:75–76.)
The other Hughes’ job where Langford was in charge
lasted just 2 days and involved working on a circuit pump.
The mechanical contractor for the job was Zia Corporation.
With Langford were Doug McDonald, an electrician, and
Orby Renfroe, an apprentice. (1:74, 140.) On all his jobs
Langford filled out the timesheets for his crew, and, when
more than one crew was present, the other foreman did the
same for his crew. (1:87; 2:326.)
Buie testified that he spends about half his time visiting
the jobs where he confers with the foreman, giving him the
paychecks to distribute, ascertaining whether the foreman
needs anything, generally checking the job, and possibly
talking with the job’s owner. (2:303–304, 328.) Langford tes-
tified that at first Buie visited his jobs two or three times a
week, but then that dropped off to once a week. Adams visits
on occasion. (1:98–100.) Apparently at least some of
Langford’s time was spent on jobs outside Jackson. Adams
testified that he spends only 1 to 2 percent of his time on
the jobs, and when he is there he devotes most of his time
to meeting with the general contractor or owner. (2:440–
441.)
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Langford spent 90 percent of his time working with the
tools, and the other 10 percent on paperwork and explaining
things to his apprentice. (1:91–92.) Buie testified that on
small jobs of just the foreman and his apprentice the foreman
may work with the tools 85 percent to 90 percent of the
time, and on larger jobs with a lot of people under him he
may not work at all with the tools. Buie could not name a
job where Langford did not work with his tools. (2:329,
362.) To the extent Buie’s version differs from Langford, I
credit Langford who testified more persuasively.
Turn now to some specific incidents which, Adco con-
tends, reflect Langford’s exercise of statutory indicia.
(b) Specific
1. Hiring
Adco contends that Langford effectively recommended the
hiring of two individuals, journeyman Doug McDonald and
apprentice Ricky Chappel. According to Buie, he hired
McDonald and Chappel based on the recommendation of
Langford who said he had worked with them. Although Buie
went through a new-hire orientation with each one, his deci-
sion to hire was made based (solely is implied) on
Langford’s recommendation. (2:310-311.)
Langford testified that in about May 1990, while on a
Hughes job that was shorthanded and being run by Foreman
Newell, he recommended Doug McDonald either to Buie or
to Adams. Langford had worked with McDonald in previous
years and knew him to be a good electrician and a hard
worker. After a call from McDonald that he was looking for
work, Langford reported these facts to Buie or to Adams and
recommended him as someone worthy if they needed to hire.
McDonald came out, spoke with Adams or Buie, and was
hired. (1:76-81, 139-140.) McDonald later worked as a jour-
neyman on Langford’s crew on the 2-day job working on a
ground circuit pump for Zia/Hughes. (1:74, 140.) Langford
did not address whatever recommendation he made as to
Chappel. (Testifying for the General Counsel before Buie
testified during Adco’s case-in-chief, Langford was not
called in rebuttal.) The record does not disclose when
Chappel was hired.
I find that Langford made his recommendations to Buie as
a skilled craftsman referring and recommending others from
a pool of qualified craftsmen. In the McDonald situation,
Newell, not Langford, was the job foreman. Even had
Langford been the job foreman, Adco’s own job description
(R. Exh. 6) contains nothing about the foreman hiring or rec-
ommending for hire. Initially responding that he did not tell
Langford (at his new-hire orientation) that Langford had au-
thority to recommend for hire, Buie then modified that to say
he does not recall. (2:354.)
I do not believe Buie when he testified, in effect, that he
hired solely on the recommendation of Langford. Buie did
not testify persuasively. I find that, although Langford’s rec-
ommendation was an important factor, Buie also made his
own evaluation during his interviews of the two applicants.
If a worker were converted to supervisor merely by recom-
mending someone he knows to be skilled, even if the em-
ployer did no independent review, then any experienced rank
and file worker would be converted to a statutory supervisor.
Such is not the law because the worker is not exercising au-
thority, in the interest of the employer (part of the worker’s
job function), plus independent judgment as contemplated by
the Act.
2. Vetoing/discharging
Adco next contends that Langford exercised his authority
to ‘‘veto’’ two apprentices—Gary Worzalla and Frank
Allen—from his crew, actually discharging Allen. The
‘‘veto’’ power, Buie testified, is the foreman’s authority to
remove someone from his crew and send him back to the of-
fice for reassignment or other action by Adco. Langford ‘‘ve-
toed’’ Worzalla from the JMS Trucking job in the summer
of 1989. (2:307, 315, 378.) Shortly after he reassigned
Worzalla, Buie testified, Worzalla quit. (2:358.) Langford ac-
knowledges sending Worzalla, who had no electrical experi-
ence, back to the office for reassignment. Although Langford
had trouble getting Worzalla to follow his work instructions,
he did not recommend that Worzalla be terminated. (1:56-
57.)
Frank Allen, Langford testified, had some experience, and
he did not follow Langford’s work instructions on the United
Way office job. When Langford told Allen that Allen was
not doing the work the way Langford had instructed, Allen
‘‘bows up, and we have a few words. And that is when I
told him to get his tools, that I would take him back to the
shop.’’ (1:60–61.) Buie testified that Langford had com-
plained earlier to him about a personality conflict with Allen
and that Allen was not a good worker. When there is simply
a personality conflict, but the apprentice is a good worker,
Buie will try to swap apprentices on the crews. (2:356–357.)
On this occasion Langford went to call the office to report
that he was bringing Allen back to the shop. (1:60.) Buie
confirms that Langford made the call. Understanding that to
mean Langford was terminating Allen, Buie filled out ‘‘the
termination sheet’’ that Langford had terminated Allen and
turned it in with the timesheets. Conceding that on ‘‘vetoes’’
by other foremen when conflicts arose he did not assume the
foremen had fired the apprentices, Buie testified that here he
‘‘took it’’ that Langford was terminating Allen because Allen
was insubordinate and not a good worker. (2:318, 355–356.)
While Langford was calling Buie, Allen got in Langford’s
company van and drove to the shop. (1:60; 2:318, 459.)
Serviceman Serber (2:387–388, 396–397) and foreman New-
ell (2:405–406) testified that Langford commented later on
the United Way job that he had fired Allen. Confirming (on
cross-examination) an account in his pretrial affidavit, Adams
testified that in the shop Langford told him, in the presence
of employees, that he had reprimanded Allen and threatened
to let Allen go ‘‘if Allen continued.’’ When Allen became
belligerent Langford told him to call someone to come get
him. (2:456, 458, 466–467.)
Testifying that he did not intend to fire Allen (although he
would have made that recommendation), and did not fire
him, Langford concedes that he may have told others that he
had done so. (1:61, 149.) I find that Langford said that to
Serber, and to Newell, and essentially that to Adams, but that
he did not tell Buie he was terminating Allen or that he
wanted Allen fired. Buie, I find, terminated Allen because
Allen did not fit Adco’s profile of an apprentice eligible for
reassignment.
1125ADCO ELECTRIC
3. Evaluating for pay raises
Earlier I described Adco’s bland ‘‘apprenticeship Evalua-
tion Form.’’ Buie (2:326) and Adams (2:448–449) testified
that the foremen evaluate their employees for pay raises and
can ‘‘veto’’ a raise for an employee. Although Buie asserts
that Langford ‘‘had evaluated apprentices,’’ and ‘‘knew that
he had the authority to recommend raises,’’ he admits ‘‘I
can’t recall specifically when I asked him to evaluate an ap-
prentice, though.’’ He further admits that he is not sure
Langford ever filled out a form on an apprentice. (2:360.) I
find that any evaluations Langford did were for the ABC ap-
prenticeship school, that he never completed an Adco form
for an apprentice or journeyman and was never asked to
complete one during his 17 months at Adco.
However, Buie testified, in the summer of 1990 Langford
did orally recommend that his apprentice, Orby Renfroe, be
given a pay increase. (2:360–361.) Langford acknowledges
that in mid-July 1990 he told Buie that he thought Renfroe
was doing a good job and needed a raise. Langford did not
recommend a specific amount, and Buie was noncommittal.
Nothing happened until a month or so later when apparently
all the apprentices got a raise. Renfroe’s was 50 cents per
hour. (1:94–95.) Buie does not explain how Langford’s rec-
ommendation as to Renfroe figured, if at all, in the overall
pay raise a month or so later for all the apprentices. As Buie
testified only that Langford had recommended, and omitted
describing what weight, if any, he gave that recommendation,
I find that Langford’s recommendation as to Renfroe carried
little, if any, weight.
(c) Other indicia
Already I have mentioned some of the secondary indicia—
the handbook provisions, the foreman’s job description, the
foreman’s title, the apprentice evaluation form, eligibility for
job completion bonus, completion of timesheets for crew,
and distribution of paychecks to crew. These indicia at least
are designed to indicate supervisory status. The evaluation
form, however, suggests a lack of supervisory status as to
Langford because the only one in evidence is blank, and
there is no evidence that Langford ever submitted one. Su-
pervisory meetings I have mentioned. Because Langford at-
tended only one, this factor indicates a lack of supervisory
status. Adams’ request at that meeting for the foremen to let
him know if their apprentices do not appear to be good pros-
pects for making electricians merely confirms the status of
Langford as a skilled and experienced senior electrician re-
porting his opinion on the aptitude of his apprentices. Adams
concedes as much by asserting that the foreman ‘‘is to train,
train apprentices.’’ (2:448.)
There are other examples. Langford was furnished a com-
pany van (1:92–93, 140–141), and he was second only to
David Lewis as the highest paid foreman. (1:97–98; 2:322–
323.) The ratio of supervisors to workers is another sec-
ondary factor that the Board has considered in the past. Re-
cently the Board has expressed a disinclination to consider
ratio as a useful factor, Phelps Community Medical Center,
295 NLRB 486 fn. 15 (1989):
Even if it were possible to conclude that a 1 to 18 ratio
is unreasonable and a 1 to 3 is reasonable, it would not
change our conclusion because such a ratio is not a fac-
tor that the Act directs us to consider. It is not the
province of the Board to determine the ‘‘proper’’ num-
ber of supervisors. Sec. 2(11) determines the factors
that, in conjunction with the exercise of independent
judgment, indicate supervisory status for the purpose of
this Act, and it is the Employer who determines how
its business is operated and what kind of responsibility
to give to its various employees.
Langford discusses safety with his apprentice (1:87–88),
and Langford orders and return materials. (1:92; 2:327, 447.)
Buie (2:329) and Adams (2:446) testified that the foreman
must closely coordinate the installation of materials with the
work of the other trades. Langford testified that the logical
progression of all the work is preset by the blueprints and
by a ‘‘job progress.’’ (1:92.) Moreover, Adco has project
managers, or estimators, who Adams classifies as manage-
ment. The appear to have a substantial role respecting mate-
rial purchases even if the foreman is present at the
preconstruction meeting. (2:435, 447–448, 465–466.) More-
over, as I have summarized, Buie visits the jobs once a week
and confers with the owner and, presumably, the general
contractor. Adams sometimes visits and also confers with the
general contractor and the owner. What coordination is left
for the foreman, I find, is simply that expected of a skilled
craftsman who is the senior journeyman at the jobsite.
Other than the company van furnished to foremen and the
foremen’s eligibility for a job completion bonus, all other
benefits are the same for Adco’s employees. (1:95–97.) Buie
testified that the foremen have keys to the crew room and
to the gate. (2:324.) Even if that is true for the other fore-
men, Langford did not have these. (1:94.) Finally, the fore-
men have no separate breakroom from the other employees
they work with (1:98), and the foremen wear no distinctive
clothing, hats, or insignia marking them as separate from the
other employees. (1:90.)
(d) Analysis and conclusions
I find that Adco has failed to carry its burden of showing
that foreman Raymond Langford was a statutory supervisor.
The specific evidence bearing on the primary indicia is lim-
ited. One example relates to Langford’s recommending that
journeyman Doug McDonald and apprentice Ricky Chappel
be hired, and to Langford’s authority to ‘‘veto’’ someone,
normally an apprentice, from his crew. As I have summa-
rized, I found the evidence showed that Langford’s role was
nothing more than that of a skilled craftsman recommending
persons from a pool of capable workers, and that Buie made
his own evaluation of whether to hire them. Thus, this factor
does not indicate supervisory status as to Langford.
The ‘‘veto’’ power fares no better because, at least as to
Langford, it is nothing more than the skilled craftsman’s au-
thority to send back to the office any crew member, normally
an apprentice, whose job performance or conduct is causing
problems. The decision at the office on whether to reassign,
suspend, terminate, or whatever, is that of Buie or Adams.
In the two instances involved here, Gary Worzalla and Frank
Allen, superintendent Buie, I have found, made the decision
to reassign or, in Allen’s case, to discharge.
The record is unclear whether the ‘‘veto’’ authority is the
same or different from the job description’s termination au-
thority. A nonforeman journeyman has the same authority on
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Although the transcript renders the town’s name as Forrest, the
atlas shows that to be a county about 90 miles southeast of Jackson.
Forest is a town about 50 miles east of Jackson according to the
Rand McNally atlas. Moreover, Adco spells it Forest. (Br. at 11.)
That is the spelling I shall use.
those infrequent occasions when he is in charge of an ap-
prentice. This factor, I find, fails to indicate that Langford
had supervisory status.
Langford directed the work of his apprentice, and appar-
ently that of a journeyman on those infrequent occasions
when Langford’s crew had more than Langford and an ap-
prentice, but this was from his position as a skilled crafts-
man. Overtime was controlled by Buie’s preset instructions.
Thus, the directing work factor does not indicate supervisory
status.
Finally, evidence respecting Langford’s recommending a
pay raise in the summer of 1990 for apprentice Renfroe is
ambiguous. The evidence can be interpreted as showing that
Buie ignored Langford’s recommendation, or that Buie car-
ried it back to Adams and they decided, a month later, to
give all apprentices a raise. The latter event shows that
Langford’s recommendation was equivalent to an employee’s
dropping a note into an employee suggestion box. In short,
none of the primary indicia reflects supervisory status as to
Raymond Langford.
Turning now to the secondary indicia, I observe again the
Board’s admonition that secondary indicia alone will not sat-
isfy Adco’s burden here. John N. Hansen Co., 293 NLRB
63, 64 (1989). Moreover, the secondary indicia mentioned,
including such matters as handling timesheets, conducting
safety meetings, or ordering materials, are clerical or other-
wise of only routine authority not requiring the exercise of
independent judgment. Hansen, supra; Hydro Conduit Corp.,
254 NLRB 433, 437 (1981). Thus, the secondary indicia fail
to carry Adco’s burden.
In finding that the evidence falls short of establishing Ray-
mond Langford to be a statutory supervisor, I am mindful
not only of the expressed concern that the Act is not to be
construed too broadly, lest a person be denied employee
rights the Act is designed to protect, but also the correlative
question: Would my finding be the same if Langford stood
accused of interrogating, threatening, and discharging in vio-
lation of the Act? The facts dictate a yes answer. Accord-
ingly, as Langford was an employee whom Adco’s owner
and president admits discharging because of his union activi-
ties, I shall order Adco to offer Raymond Langford imme-
diate and full reinstatement and to make him whole, with in-
terest.
2. September 17, 1990 discharge of Eric Muncy
a. Introduction
Complaint paragraph 12 alleges that Adco terminated Eric
Muncy about September 17, 1990. Adco admits that, but de-
nies terminating Muncy because of his union activities.
At the time of his testimony Muncy had just begun his
second year in the Union’s joint apprenticeship school.
Muncy testified that he worked for Adco from July 26 to
(Friday) September 14, 1990. (2:235–236, 247–248.) During
that time he was laid off on August 24 for 1 week from
Adco for lack of work. (2:249, 268.) Muncy signed a union
authorization card at the union meeting of Sunday, August
12. (1:110; 2:252–253.) As shown earlier, Muncy’s name is
one of the nine listed on the letter Business Manager Tucker
delivered to Adco on August 14. Thereafter Muncy openly
displayed his support of the Union, including wearing a
union organizer badge (G.C. Exh. 17) and union ball cap.
(2:254–255.)
From his late August layoff, Muncy returned to work in
early September still displaying his union insignia. (2:255–
256.) That first day back Muncy was assigned to work at
McCarty Foods in Forest, Mississippi, where he worked until
his discharge the morning of Monday, September 17. (2:249,
260; G.C. Exh. 10.)8 As we see in detail later, there is some
discrepancy is the record concerning the reason(s) advanced
for Muncy’s discharge. The principal one or ones relate to
Muncy’s failure to work overtime on Saturday, September
15.
b. Eric Lott becomes leadperson
David Lewis was Adco’s foreman on the McCarty Foods
job before Muncy arrived. Eric Lott had been working as his
apprentice. Muncy and Cory Williams were added to the job,
with Muncy being an apprentice and Williams a journeyman.
(2:249, 269, 276.) Williams had joined Adco on July 11.
(2:278.) Lewis injured his back the weekend before Muncy
arrived at the job, and Lewis did not return to work until
Monday, September 17. (1:157; 2:250, 335.) During the 1-
week absence of Lewis, apprentice Lott, Buie testified, func-
tioned as a leadperson, with just Lott, Williams, and Muncy
working at the McCarty job. (2:335.) Lott confirms that he
ran the job in the absence of Lewis, although no one told
him to do so. (1:157, 179–180, 187.) At the time of the
McCarty job Lott was a fourth-year apprentice and had been
working at Adco since January 1988. (1:155–156, 186.)
McCarty Foods, Buie testified, processes chicken. The
plant usually operates all week through Saturday. Construc-
tion consisted of an expansion, adding a breakroom and of-
fice space. Adco could not run a ‘‘feeder’’ over the work
area to the construction when McCarty’s employees were
processing the food. Accordingly, Buie testified, when
McCarty canceled work for Saturday, September 15, it was
imperative that Adco work that day. (2:332, 348–349.)
Sometime between Tuesday, September 11, and Thursday,
September 13, Buie told Lott that the crew would need to
work overtime that Saturday, September 15. Ott relayed this
information to Muncy and to Williams. The actual date and
phraseology are disputed, but it is clear that no later than
Thursday Muncy and Williams were alerted. Both Muncy
and Williams told Lott that they could not work that Satur-
day. Lott testified that Muncy said it would be a cold day
in hell before he would work that Saturday, and that if Buie
asked him he would just laugh in his face because he had
to work on his car to get it ready for a vacation he had
planned. (Without contradiction Muncy testified that about
mid-August Buie had essentially approved Muncy’s taking
off work 3 days beginning Wednesday, September 19, for a
vacation trip to Florida. (2:250–251.) Williams said he had
plans to visit an aquarium in New Orleans. Lott concedes he
gave no warning of discipline if they did not work. (1:162–
163, 177.)
1127ADCO ELECTRIC
c. Friday, September 14, 1990
When Buie delivered the paychecks to Lott the afternoon
of Friday, September 14, he asked Lott if everyone was set
to work that Saturday. Lott informed him that Muncy and
Williams said they had other plans. Well, Buie said, Lott had
planned to go to a ballgame but had canceled his plans.
‘‘Tell them be here,’’ Buie instructed. When Lott distributed
the paychecks to Muncy and to Williams he told them that
Buie said for them to ‘‘be here tomorrow.’’ Muncy repeated
his cold-day-in hell remark, but Williams, Lott testified, ut-
tered very abusive language. (1:164–165.) Muncy denies that
Lott told them Buie said ‘‘Be here,’’ and claims that Lott
quoted Buie as asking that they work. (2:273.) Williams ac-
knowledges that Lott relayed a ‘‘Be here’’ message from
Buie. (2:290.) Crediting Lott, Buie, and Williams on this
point, I further find that no disciplinary consequences for any
failure to work Saturday overtime were described or con-
veyed to Muncy and Williams.
Apparently rather shaken by Williams’ outburst, and fear-
ing that he might react in a manner he later would regret,
Lott told the two, ‘‘Let’s go,’’ and the three left work that
Friday around 3 p.m. Lott logged all their timesheets as leav-
ing at the regular quitting time of 3:30 p.m. (1:167.) Buie
testified that he returned to the job about 3 p.m. to 3:05 p.m.
and discovered the three were gone. McCarty’s guard told
him the three had left 5 to 10 minutes earlier. (2:339–340.)
That Saturday neither Muncy nor Williams worked. Lott
joined with several others who were sent (foreman Tony
Goodwin) or volunteered to work Saturday overtime at the
McCarty jobsite. (1:165, 167–168; 2:337.)
d. Eric Muncy discharged September 17, 1990
On Monday morning, September 17, Buie telephoned fore-
man David Lewis and told him to send Williams to the shop.
Buie was firing Williams for ‘‘cussing on the job.’’ (1:158,
167; 2:291.) Williams was one of the nine named on the
Union’s August 14 letter to Adco. He and the other three on
the McCarty job, including foreman David Lewis, wore
union insignia, although not on McCarty’s premises.
McCarty Foods apparently had expressed disapproval and
Tucker, the Union’s business manager, to avoid problems for
the men, suggested they not wear the insignia on McCarty’s
premises. (1:178–179, 186; 2:269.) The complaint does not
attack the discharge of Cory Williams.
After Buie discharged Williams, Lewis relayed a message
from Buie to Muncy that Muncy was fired for not working
the previous Saturday. Because Muncy had no transportation,
Buie drove to the jobsite to get him around 11 a.m. (1:167;
2:260, 340.) Buie asserts that when he arrived at the jobsite
he asked Muncy why he had not come to work. Because
Muncy had told Lott that he would be unable to be there,
Muncy replied. Did Lott tell Muncy that he was to be there,
Buie asked. Muncy did not answer, Buie testified. (2:339–
340.) Muncy was not called as a rebuttal witness.
As they drove back to Jackson, Muncy testified, Buie
asked why Muncy had not called in. Because, Muncy re-
plied, Buie already knew. Muncy still should have called,
Buie responded. Why had Muncy not called him on Friday
afternoon, Buie inquired. Because Buie would have been
gone, Muncy answered. Why not call him at home, Buie per-
sisted. Because Muncy did not have Buie’s home number,
Muncy replied. (2:260–261.) Buie does not challenge this ac-
count.
Buie testified that as they drove back to Jackson he asked
Muncy what time they had quit work the previous Friday. At
3:30 p.m., Muncy answered. When Buie said he had come
to the job at 3:05 p.m. and no one was there, Muncy said
he doubted that. Buie asked if he doubted the fact or whether
Buie had witnesses. Muncy said he had witnesses, too.
(2:340–341.) Buie confronted Lott the next day, Tuesday,
about the matter, and Lott admitted they had left early, pos-
sibly at 3 p.m. Buie told Lott that if he had lied he was pre-
pared to fire him. (2:341.) Lott confirms this, except that, in
response to a leading question, Lott testified that the con-
versation occurred on Monday. (1:181–182.)
The termination form (G.C. Exh. 10) which Buie com-
pleted for Muncy on September 17 (obviously after the ride
back to Jackson with Muncy) gives as the termination rea-
son:
Missing work Sat. without letting me know. Lying
about the time he worked Friday 9–14–90.
Adams testified that he discussed Buie’s decision to dis-
charge Muncy with Buie, and that the reasons stated on the
form are the only reasons Muncy was fired. (1:42–43.) (Em-
phasis added.) I find that Adams and Buie, aside from any
earlier discussion, discussed the matter that afternoon after
Buie had transported Muncy back to Jackson.
Lott testified that when he spoke to Buie on Thursday dis-
cussing the job, and Buie mentioned the overtime for Satur-
day, Lott also reported that Muncy and Williams were not
working to capacity. Lott asserts that he orally reprimanded
the two that week because of their (undescribed) perform-
ance. He assertedly discussed these unspecified shortcomings
with Buie in their Thursday telephone conversation. (1:160,
175–176, 180.) Buie testified that Muncy’s union activities
had nothing to do with his discharge (2:345–346), and that
even aside from Muncy’s no-show on Saturday, Buie would
have fired him for the misconduct he learned about after he
already had decided to fire him. The other misconduct, Buie
asserts, was: (1) leaving early on Friday, (2) lying about it,
and (3) poor job performance for ‘‘the whole week that they
had worked there.’’ (2:346–347.) No specifics are given to
support the allegation of poor job performance.
Both sides offered evidence of other examples of how
overtime was handled. The General Counsel adduced evi-
dence concerning foreman Newell’s handling of overtime at
the Hughes Aircraft job, also in Forest, Mississippi. Williams
testified that on two occasions, once in July and once in Au-
gust, Newell told him to ‘‘be there’’ for Saturday overtime.
Although Williams did not show for the overtime work, no
discipline followed. (2:282–287.) Lott described a similar in-
stance in July, except he quotes Newell as saying ‘‘every-
body that can, be here.’’ Because he needed time off during
a painful divorce, Lott did not report to work. The following
Monday Newell orally counseled him about the need for ev-
eryone to pull together at work despite personal hardships.
Lott describes the Hughes job as bigger (more personnel)
than the McCarty job. (1:170–174, 183.) The record confirms
Lott.
Buie (2:342–344) and Newell (3:408–410) describe an
overtime incident in May at the Hughes Aircraft jobsite in
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Forest in which Buie, responding to an emergency situation,
told Newell that the crew would have to work late that day.
Newell, apparently a little later, informed Buie that appren-
tice Ricky Chappel was refusing to work the overtime. Buie
personally went to Chappel and warned him that if he left
rather than remaining to work overtime he could ‘‘stay
gone.’’ Chappel left and never returned. Buie testified that
anyone who ever refused his orders in these circumstances
to work overtime was fired.
e. Analysis and conclusions
Finding, as I do, Adco’s reasons for discharging Eric
Muncy to be pretextual, I find merit to the Government’s al-
legations.
As I have found, Lott relayed Buie’s ‘‘tell them to be
here’’ message to Muncy and Williams. Nevertheless, the
fact remains that Lott informed Buie that Muncy and Wil-
liams said they had other plans and would not be there to
work on Saturday. Unlike the similar situation on the Hughes
Aircraft job in May when Buie personally confronted Ricky
Chappel, here Buie—although at the jobsite to deliver the
paychecks, as he had been at the Hughes job—failed to con-
front Muncy and Williams. If anything the situation here
called more for Buie’s personal intervention than in the
Chappel situation. John Newell was a general foreman on the
Hughes Aircraft job. (2:408–409.) Buie easily could have re-
lied on general foreman Newell to notify Chappel that he
must work overtime or ‘‘stay gone.’’ Indeed, Buie asserts
that Newell, as the general foreman, ‘‘runs the job; it is his
job to run. He runs it as he sees fit.’’ (2:345.) Yet Buie per-
sonally confronted Chappel.
By contrast, Lott was merely an apprentice, not even a
journeyman, not a foreman, and certainly not a general fore-
man. He was far below Newell’s status. Yet Buie chose to
relay messages through Lott rather than to personally con-
front Muncy and Williams. Buie knew that Muncy wanted
to prepare his car for a vacation which Buie essentially had
approved several weeks earlier. Buie’s failure to speak to
Muncy and Williams suggests that Buie had a different mo-
tive from any managerial desire to simply relay instructions
through ‘‘leadperson’’ Lott. That different motive, I find,
was to seize this occasion as an opportunity to fire them be-
cause of their open support of the Union.
Turn now to the stated reasons for the discharge. Muncy
understood foreman Lewis to say that Buie was firing Muncy
for not working Saturday overtime. (2:260.) When Buie ar-
rived at the jobsite 2 hours or so later to pick up Muncy,
Buie’s first concern was why Muncy had not reported to
work. As they drove to Jackson Buie’s concern shifted to
asking why Muncy had not called him—implying that had
Muncy called then perhaps the discipline would have been
no greater than the oral counseling Newell had given Lott.
Adco’s official reasons (confirmed by Adams at the hear-
ing as the only reasons, 1:43–44) are those stated by Buie
on the September 17 termination slip (G.C. Exh. 10.) Buie
obviously prepared the form after transporting Muncy back
to Jackson, for it was not until the ride that Buie learned
Muncy was ‘‘lying’’ about the time the crew had left that
Friday. The first of the reasons stated on the form adopts the
concern Buie had expressed during the trip—missing work
on Saturday ‘‘without letting me know.’’
There is no evidence Buie had ever notified employees to
call him personally rather than conferring with their foreman
or, in this instance, their ‘‘leadperson.’’ Indeed, Adco’s evi-
dence in Langford’s portion of the record is just the oppo-
site—that employees are to take all matters to their job fore-
man short of using Adco’s ‘‘open door’’ option. Thus, Buie’s
first stated reason is based on a rule tailored just for Muncy.
This stated reason demonstrates that Adco was seeking to se-
lect a reason that it perceived as more likely to withstand
scrutiny than a strict interpretation of Adco’s overtime pol-
icy. Adco’s handbook does not specify that overtime is man-
datory, but it does provide that Adco will establish the over-
time hours and assign the employees. (G.C. Exh. 8 at 10.)
Owner Adams concedes that he and Buie discussed the
matter, asserting that it was Buie’s decision to terminate
Muncy. (1:42) I find that they conferred (not necessarily the
first time) about the matter after Buie transported Muncy
back to Jackson and before Buie completed the termination
form respecting Muncy. This unprecedented first reason, I
find, was fashioned for Muncy because he openly supported
the Union.
Before me Adco, through Buie, sought to shift the basis
for the discharge to the bare fact of Muncy’s no-show and
to offer the lying factor as an after-discovered ground which
Buie would have fired Muncy for even had he worked that
Saturday. Indeed, at the hearing Buie added two more mis-
conduct reasons—leaving early on Friday and poor job per-
formance—to the official version. (2:346.)
The lying ground stands unrebutted by Muncy. I find that
Adco adopted it as a pretext. Adco did not discipline Lott
for falsifying the timesheets. As between Lott’s positive ac-
tion, and Muncy’s defensive coverup, clearly Lott’s is the
more serious offense. By failing to punish Lott for his more
serious offense, Buie forfeits any credibility which might
otherwise attach to this ground. Thus, I find that Adco ad-
vanced this reason in bad faith.
The first of the afterthoughts expressed at the hearing,
leaving work early, has no merit because it was Lott, the per-
son in charge, who told the crew, ‘‘Let’s go.’’ Moreover,
Lott was not disciplined for this and, so far as the record
shows, it was not offered as a basis for Williams’ discharge.
(Indeed, not even the failure to work Saturday or failure to
call Buie was given Williams as an additional ground for his
discharge.) I find that Adco distorted this fact in a pathetic
effort to find a makeweight to bolster a defense it rightly
perceived to be weak. Adco advanced this pretextual reason,
I find, to mask its real and unlawful motive. Moreover, I find
that Adco would not have disciplined Muncy, in the absence
of his union activities, by relying either on this factor or the
lying ground.
The second afterthought added at the hearing, the poor
performance ground, also stands unrebutted. Nevertheless,
disbelieving both Buie and Lott, I find that Adco also ad-
vances this reason in bad faith. Buie and Lott offered only
generalities. I have found Buie an unreliable and
unpersuasive witness. Lott clearly was a friendly witness to
Adco for his cross-examination. For example, in the
(unobjected to) hearsay conversation with foreman David
Lewis on the foreman’s return to work, Lott answered a se-
ries of leading questions in the affirmative, including (1:180):
1129ADCO ELECTRIC
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
10 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.’’
Q. Did you then tell him [Foreman Lewis] that you
didn’t care if those guys were in the Brotherhood or
not; if they weren’t going to work you didn’t need them
on the job?
A. That was probably a quote. Yes, sir.
Note also that although Lott supposedly reported the poor
performance matter to Buie in their Thursday telephone con-
versation, Buie never mentioned it to Muncy on Monday and
did not include it on the official termination form. Indeed,
Lott omitted the item when first describing his Thursday
conversation with Buie (1:159–160), adding it later only after
being prompted. (1:175–176.) Again disbelieving Lott and
Buie, I find this afterthought to be completely false, and
added in a blatant attempt to bolster a defense perceived by
Adco to be inadequate.
In short, Adco’s reasons are either pretextual or false. I
infer that they were advanced to conceal another motive—
the unlawful motive of ridding itself of one of the Union’s
organizers. Shattuck Denn Mining Corp., 362 F.2d 466, 470
(9th Cir. 1966.) It is true that Lott had been an open sup-
porter of the Union, and that Adco did not seize this oppor-
tunity to fire him as well over falsification of the timeslips.
Whether Adco weighed its chances in that respect I need not
decide, for the Government need prove only the alleged dis-
crimination. Its case against an employer respondent is not
defeated simply because the employer has not fired all
known union supporters. Accordingly, I shall order Adco to
offer Eric Muncy full and immediate reinstatement to and
make him whole, with interest.
CONCLUSIONS OF LAW
1. Adco has failed to carry its burden of demonstrating
that Raymond Langford was a supervisor within the meaning
of 29 U.S.C. § 152(2) when it discharged him on August 17,
1990 because of his activities on behalf of IBEW Local 480.
2. By interrogations, threats, and disciplinary actions,
Adco has engaged in unfair labor practices affecting com-
merce within the meaning of 29 U.S.C. § 158(a)(1) and (3)
and 29 U.S.C. § 152(6) and (7).
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.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Adco Electric Incorporated, Jackson,
Mississippi, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee or job applicant
about union support or union activities.
(b) Threatening employees that they could not be given a
pay raise because of the International Brotherhood of Elec-
trical Workers, Local Union No. 480, AFL–CIO organizing
campaign.
(c) Discharging or otherwise discriminating against any
employee for supporting IBEW Local 480, or any other
union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Raymond Langford and Eric Muncy immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of the decision.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this has
been done and that the discharge will not be used against
them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Jackson, Mississippi facility copies of the
attached notice marked ‘‘Appendix.’’10 Copies of the notice,
on forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that complaint paragraphs 8, 9,
and 13 are dismissed.
1130 DECISIONS OF THE 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively question you or job applicants
about your union support or activities.
WE WILL NOT threaten you that we cannot give a pay raise
because of an organizing campaign by IBEW Local 480, or
any other union.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting IBEW Local 480, or any other
union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Raymond Langford and Eric Muncy imme-
diate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus interest.
WE WILL notify each of them that we have removed from
our files any reference to his discharge and that the discharge
will not be used against him in any way.
ADCO ELECTRIC INCORPORATED