ADS Electric Co.

National Labor Relations Board - Board Decisions

Aug 14, 2003

339 N.L.R.B. 1020 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1020
ADS Electric Company and Local 702, International
Brotherhood of Electrical Workers, AFL–CIO.
Case 14–CA–27016
August 14, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On February 14, 2003, Administrative Law Judge
Margaret M. Kern issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief1 and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, ADS Electric, Vandalia, Illi-
nois, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.

1 The General Counsel has moved to strike a portion of the Respon-
dent’s brief in support of the Respondent’s exceptions. In light of our
decision we find it unnecessary to pass on the General Counsel’s mo-
tion.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In view of evidence that employees Peterson and Seals misrepre-
sented their work experience in their job applications or interviews with
the Respondent, we will provide the Respondent with an opportunity in
the compliance stage of this proceeding to establish when it became
aware of the employees’ asserted misconduct and to show whether this
would have provided grounds for termination based on a preexisting,
nondiscriminatory company policy. Arrow Flint Electric Co., 321
NLRB 1208, 1210 (1996); Escada (USA), Inc., 304 NLRB 845 fn. 4
(1991); John Cuneo, Inc., 298 NLRB 856, 857 at fn. 7 (1990).
Although Member Walsh agrees that it is appropriate to allow the
Respondent to litigate this remedial matter in the compliance stage of
this proceeding, he notes that the type of misrepresentation that the
discriminatees allegedly committed in this case may not be proper
justification for their termination. See Hartman Bros. Heating & Air
Conditioning, Inc. v. NLRB, 280 F.3d 1110, 1112–1113 (7th Cir. 2002).

Kathy J. Talbott-Schehl, Esq. and John P. Hasman, Esq., for
the General Counsel.
Vance D. Miller, Esq. and Russell C. Riggan, Esq., for Respon-
dent.
James Singer, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me on October 17, 2002,1 in St. Louis, Mis-
souri. The complaint, which issued on August 29, was based on
an unfair labor practice charge and amended charge filed on
July 12 and August 29 by Local 702, International Brotherhood
of Electrical Workers, AFL–CIO (the Union) against ADS
Electric Company (Respondent). It is alleged that on April 29,
Respondent laid off Dennis Peterson, and has since refused to
recall him to work, because of his membership in and activities
on behalf of the Union. It is further alleged that in or about the
third week in June, Respondent laid off Ron Seals, and has
since refused to recall him to work, for the same reason.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits and I find it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent stipulates and I find the union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Business and the Union’s Organizing Efforts
Respondent is an electrical contractor that performs residen-
tial, commercial, and industrial work in and around Vandalia,
Illinois. Daniel Stock is president and an owner. In December
2000, Bob Dorris, an organizer for the Union, first contacted
Stock and spoke to him about Respondent becoming a union
signatory contractor. Their discussions continued through 2001,
during which time Dorris recruited two of Stock’s employees to
join the union’s apprenticeship program. Both employees left
Respondent’s employ, the first in August 2001 and the second
in October 2001. That same month, October 2001, Dorris ac-
companied union members to Respondent’s office where they
applied for jobs, and the Union conducted 3 days of picketing
at one of Respondent’s jobsites. Notwithstanding Dorris’
organizing efforts, Stock declined to sign a collective-
bargaining agreement with the Union. On March 15, however,
Stock did sign a 2-year collective-bargaining agreement with a
different union, the Congress of Independent Unions (CIU),
covering a unit of all of Respondent’s employees. At the time
Stock signed this agreement, he employed four electricians: Jim
1 All dates are in 2002 unless otherwise indicated.
339 NLRB No. 128
ADS ELECTRIC CO. 1021
Trible, Greg Tomlinson, Jim Beams, and Mark McElroy. Stock
considered Trible and Tomlinson to be experienced electri-
cians, Beams as somewhat experienced, and McElroy as not
experienced.2
In January, Respondent entered into an arrangement with
Owens-Illinois to perform installation work at a plant in New
Jersey. The assignment called for two employees to work 2
weeks at a time, beginning in late March and lasting 4 or 5
months. Stock surveyed his employees to see who was inter-
ested in going to New Jersey. Tomlinson and McElroy were
willing to go, Trible and Beams were not. None of these em-
ployees testified.
At the same time as the startup of the New Jersey project,
Stock was committed to begin working on construction of a
Taco Bell/Kentucky Fried Chicken store (KFC job). Stock testi-
fied he expected the KFC job to begin in May, and he wanted
to get ahead on his service calls and get them cleaned up before
the start of that job. He determined he needed to hire an electri-
cian to work locally.
B. The Hiring of Ron Seals
Ron Seals has worked as an electrician for 10 years. In Janu-
ary, he submitted an employment application to Respondent but
was not interviewed or hired at that time. In February, Seals
joined the Union’s apprenticeship program and he began work-
ing for a union signatory contractor. In March, Stock called
Seals and said he had a job opening. Seals spoke to Dorris and
they agreed that Seals would accept the offer. They also agreed
that if Seals were hired, the Union would pay him the differ-
ence between the wages paid by Respondent and the Union’s
contractual wage rate. Dorris instructed Seals that if he were
hired, he was to make notes of his conversations with Stock.
On March 22, Seals went to Respondent’s office and Stock
had him fill out a second application. The preprinted portion of
the second application was identical to the first application
Seals had filled out in January, but with the following addi-
tional language typewritten in: “I understand that this applica-
tion is to be filled out in its entirety. I understand that this ap-
plication is valid for 30 days only.” During the ensuing inter-
view, Stock said Seals would be working within a 50-mile ra-
dius of the Vandalia office doing service calls with another
employee, Jim Beams. According to Seals, Stock mentioned
that he had a crew working in New Jersey, but he did not ask
Seals if he would be willing to travel to New Jersey. Stock, on
the other hand, testified he did ask Seals about his willingness
to go to New Jersey and that Seals’ response was that “he
didn’t care to.” Stock also made reference to the CIU during the
interview. According to Seals, Stock said he was a member of
the CIU which was a “scam” that allowed him to claim he was
a union contractor. He said the CIU was there to keep the
IBEW off his back and that the IBEW had picketed him in the
past. Stock added that he would pay Seals’ dues to the CIU for
him. According to Stock, he told Seals he belonged to the CIU
and that Seals could join if he wanted. Stock denied saying the

2 Stock testified that when he hires electricians, he rates their experi-
ence on a three-tiered scale: experienced, somewhat experienced, and
not experienced.
CIU was a scam union, or that the CIU enabled him to claim
union contractor status.
Seals began working as a full-time employee on March 25.3
All of the work he performed was in the Vandalia area, and the
majority of the work was inside work. In April, Stock told Seals
he was anticipating the start of the KFC job and he expected
Seals would be the foreman on that job. Seals looked at the
blueprints for the job and prepared time and materials esti-
mates.
C. The Hiring of Dennis Peterson
Dennis Peterson has worked as an electrician for over 20
years. He has been a member of the Union for 23 years and he
serves on the organizing and pension committees. He has at times
been compensated by the Union for his organizing activities.
In early April, Seals recommended Peterson to Stock as
someone he might want to hire. Seals testified that Stock asked
him if Peterson would be willing to work part time and Seals
said yes. On April 3, Peterson went to the office to fill out an
application and Stock interviewed him.4 Stock said he had
factory work in New Jersey and that he usually sent two em-
ployees to work there in 2-week rotations. According to Peter-
son, Stock asked him if he would be willing to go to New Jer-
sey and Peterson said yes. Stock, on the other hand, testified
Peterson said he “did not care to go” to New Jersey. Stock also
testified he told Peterson the only work he had was part time,
on an as-needed basis.
On April 9, Stock told Peterson in a telephone conversation
he could start working on April 11 on a part-time basis. Ac-
cording to Peterson, Stock said the job would soon lead into
full-time employment. Stock denied making this statement, and
testified he hired Peterson on a part-time, as-needed basis to
catch up on service calls.
Peterson began working on Thursday, April 11 and he was
partnered with Seals. Peterson testified that on the morning of
April 12, he asked Stock if he would need him the following
week, and Stock said yes. Stock said he also needed Peterson to
work that weekend, and Peterson worked on April 13 and April
14. Peterson testified he overheard Stock telling Seals he had
just picked up a lighting job and that he was soon going to be
looking to hire two or three more electricians. Seals testified
that on April 13, Stock told him he liked Peterson’s work and
that he would have more work for both of them.
D. Events of April 15
On Monday, April 15, Dorris and two job applicants went to
Respondent’s office wearing union T-shirts. Dorris introduced
the applicants, described their experience, and said they were
3 Beams was discharged on March 28, bringing Respondent’s com-
plement of employees back to four electricians.
4 That same day, Seals inquired of Stock about the kind of represen-
tation he could expect from the CIU. Stock told Seals to direct his
inquiry to the CIU. On April 30, Seals sent a letter to the CIU request-
ing information about meetings and dues, and requesting a copy of the
collective-bargaining agreement with Respondent. On May 3, Stock
received a letter from the CIU disclaiming interest in representing
Respondent’s employees. Stock testified he called the CIU, but was not
given an explanation for the CIU’s action. There is no direct evidence
that Stock was aware of Seals’ April 30 letter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1022
willing to accept any position at any salary. Stock said he was
not hiring at that time but agreed to give the two individuals job
applications. As this conversation was taking place, Seals and
Peterson entered the office. Dorris advised Stock that Seals and
Peterson were union members, and as he did so, Seals and Pe-
terson took off their jackets exposing union T-shirts. According
to the General Counsel’s witnesses, Stock’s response was, “I
don’t appreciate this, guys.” Stock testified he said, “Thanks a
lot, guys.” Stock gave the applicants copies of their applications
and Seals and Peterson went back to work.
Peterson testified that later that day, Stock told him to work
the next 2 days, April 16 and 17, but that he would have to see
whether he would have work for him on Thursday, April 18.
Stock did not testify about this conversation.
E. Peterson’s Layoff
On the afternoon of April 17, Stock told Peterson there was
no more work for him. Peterson reminded Stock that on the
previous Friday, Stock had told him there would be work for
him all week, and he hoped that the work hadn’t dried up be-
cause of his union T-shirt. Stock said he had no complaints
with Peterson and that he was pleased with his work, but that
the lack of work was due to weather-related delays. He asked
Peterson if he wanted to be recalled and Peterson said yes.
Stock said he might recall him the following Monday, April 22.
Stock did not testify about this conversation with Peterson.
On April 19, Peterson received a message to report to work
on Monday, April 22. Peterson worked a full day on April 22
and 23. On the afternoon of April 23, Stock told Peterson he
had no more work for him and didn’t know when he might
need Peterson next. Stock testified Peterson said he wanted to
return to work, and Stock admitted he told Peterson he would
“have to see how the work load went.” Peterson did not work
for Respondent after April 23. All of the work he performed,
with the exception of several hours spent at one location, was
inside work not affected by weather.
On April 29, Peterson called and asked Stock if he needed
him that week and Stock said no. On May 14, Peterson left a
message for Stock that he was still interested in working, and
on June 27, Peterson went to see Stock at the shop. He told
Stock he still considered himself an employee with recall rights
and he asked if Stock agreed with that statement. Peterson testi-
fied Stock said, “[O]kay.” Stock testified he remained silent
because he did not want anything he said to be misunderstood.
Stock testified he made the decision to lay off Peterson on April
23 because he and Seals had caught up on the service calls.
F. Seals’ Injury
Seals continued to work until May 8 when he suffered a
crush injury to two fingers while working on his car at home.
He advised Stock that his doctor estimated he would be out of
work from 6 to 12 weeks, and he told Stock he wanted to return
to work when he was able. According to Seals, Stock said if he
brought in a doctor’s note, there would be work for him when
he returned. A short time later, Seals saw Stock in the local
Wal-Mart, and he reiterated his desire to return to work. Stock
told him there would be work for him, provided he had a doc-
tor’s release.
G. Respondent’s Subsequent Hiring
Following Peterson’s lay off and Seals’ injury, sometime in
May, Tomlinson allegedly told Stock that he no longer wanted
to work in New Jersey. Stock hired Rick Carroll on May 14 to
replace Tomlinson in New Jersey.5 Stock considered him an
experienced electrician with foreman experience. Stock testi-
fied he considered Peterson for the New Jersey job, but rejected
the idea for two reasons: first, Peterson’s application did not
indicate any type of lead man or foreman experience, and sec-
ond, because Peterson had told Stock during his initial inter-
view that he did not care to go to New Jersey.
On June 21, Trible, who had never been assigned to New
Jersey and who had worked exclusively in the local Vandalia
area, gave Stock 2 weeks’ notice of his intention to leave the
Company. Stock testified Trible was his most senior employee,
he had not had any plans to lay him off, and his resignation had
come as a surprise. That same day, Seals delivered to Stock a
note from his doctor stating he could return to work immedi-
ately without restrictions. Notwithstanding Trible’s departure,
Stock told Seals he had no work for him. When Seals pressed
the issue that he needed work, Stock told him to get out of his
office. Stock testified he made the decision not to replace Trible
based upon his current and projected workload.
At the same time that Trible announced he was leaving,
McElroy, who did the New Jersey rotation, also announced his
intent to leave. McElroy’s last day of employment was on July
2. On July 6, Stock hired Jerry Brummett, who had no previous
experience as an electrician, to replace McElroy. In explaining
why he did not use Seals or Peterson to replace McElroy, Stock
testified that for the entire period of the New Jersey job, from
March to September, he never employed more than two em-
ployees on the job at any given time, and that an experienced
employee was always paired with a nonexperienced employee.
Since McElroy was not experienced, and functioned as a helper
on the New Jersey job, Stock did not consider it appropriate to
send either Peterson or Seals to New Jersey because they were
both experienced electricians. Stock also relied on the fact that
both Peterson and Seals had told him they did not care to work
in New Jersey.
Respondent’s records show that from April to September,
employees worked 75 days in New Jersey. On 13 of those days,
three employees worked in New Jersey at the same time:
Tomlinson (experienced), Carroll (experienced), and McElroy
(not experienced). On 15 days, Carroll worked alone. On 6
days, Tomlinson and Carroll worked together without a nonex-
perienced employee. 6
Respondent maintains a log of residential and commercial
service calls. When a call comes in, it is entered into the log,
and when the job is completed, it is crossed off. From March to
September, Respondent had a monthly average of 27, 23, 20,

5 Notwithstanding the fact that Carroll was hired on May 14 to take
Tomlinson’s place in New Jersey, Tomlinson continued working in
New Jersey until June 15.
6 McElroy, Tomlinson, and Carroll worked together from May 14 to
19, and from May 26 to June 1. Carroll worked alone on June 9, 17,
and 26, July 29 to August 7, and September 2 and 3. Tomlinson and
Carroll worked together from June 10 to 15.
ADS ELECTRIC CO. 1023
25, 26, 34, and 44 active service calls. Respondent’s records
further show that Respondent’s employees worked the follow-
ing amounts of overtime in total from March to September: 5
hours in March, 90 hours in April, 116 hours in May, 145 hours
in June, 116 hours in July, 148 hours in August, and 95 hours in
September. Respondent has not employed more than three elec-
tricians since July 2, Trible’s last day of employment. From
July 29 to August 16, Tomlinson was on vacation and only
Carroll and Brummett were working.
Stock testified he did not consider laying off Carroll at the
end of the New Jersey job in order to recall Seals because he
does not have a recall policy for laid-off employees and he has
never in the past laid off an otherwise competent employee to
recall an equally competent but previously laid-off employee.
Stock testified at the hearing that Seals and Peterson had no
recall rights and he would not employ them unless they filled
out new job applications. If reemployed, he would consider
them new hires, not recalled employees.
IV. ANALYSIS
A. Wright Line
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board established an analytical framework for deciding cases
turning on employer motivation. The General Counsel must
first persuade, by a preponderance of the evidence, that an em-
ployee's protected conduct was a motivating factor in the em-
ployer’s decision. If the General Counsel is able to make such a
showing, the burden of persuasion shifts to the employer to
demonstrate that the same action would have taken place even
in the absence of the protected conduct. The elements com-
monly required to support a finding of discriminatory motiva-
tion under Section 8(a)(3) are union activity, employer knowl-
edge, and employer animus. Sears, Roebuck & Co., 337 NLRB
443 (2002) and cases cited.
In determining whether the General Counsel has met his ini-
tial burden of proving that an employee's protected activity was
a motivating factor in an employer’s decision to discharge the
employee, the Board has held that motive may be inferred from
the total circumstances proved. A judge may infer unlawful
motivation when the proffered reasons for an action are false,
even in the absence of direct evidence of motivation. Williams
Contracting, 309 NLRB 433 fn. 2 (1992). A finding of pretext
necessarily means that the reasons advanced by the employer
either did not exist or were not in fact relied upon, thereby leav-
ing intact the inference of wrongful motive established by the
General Counsel. Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. 705 F.2d 799 (6th Cir. 1982).
The General Counsel does not argue that there is direct evi-
dence of animus in this case.7 Rather, as set forth in her brief,
counsel for the General Counsel premises liability on the fact

7 I credit the testimony of the General Counsel’s witnesses that when
confronted with the fact of Seals’ and Peterson’s union membership,
Stock said he did not appreciate it. Stock also testified he felt Seals and
Peterson had lied to him by not earlier disclosing their union affiliation.
Since the General Counsel does not contend that this evidence consti-
tutes direct evidence of animus, I make no such finding.
that the reasons proffered by Stock for his layoff and failure to
recall Peterson and Seals were pretextual. Respondent, on the
other hand, contends that Peterson and Seals were laid off and
not recalled due to lack of work. For the reasons set forth
herein, I agree with the General Counsel.
B. Credibility
Notwithstanding Stock’s equanimous demeanor, his testi-
mony does not withstand critical examination. Stock testified
that for the entire period of the New Jersey job, from March to
September, he never employed more than two employees on
that job at any given time, and he always paired an experienced
employee with a nonexperienced employee. This testimony was
essential to Respondent’s defense that it maintained a consis-
tent staffing pattern and that Peterson and Seals did not fit into
that pattern. The objective evidence, however, proves other-
wise. An careful analysis of the dailytime cards of Respon-
dent’s employees shows that on 13 workdays, Stock assigned
three employees to work together in New Jersey, on 15
workdays an experienced employee worked alone, and on 6
workdays, two experienced employees were paired without a
nonexperienced employee. Stock’s testimony that he never
varied from his staffing pattern was directly contradicted by his
own records.
Stock testified that his decisions to lay off and not recall Pe-
terson and Seals were based on lack of work. The objective
evidence, however, contradicts Stock’s claim. Respondent’s job
log shows that when Peterson started working on April 11,
Respondent had 15 outstanding service calls. On April 22, the
day before Peterson’s layoff, Respondent had 25 outstanding
service calls. On April 26, 3 days after Peterson’s layoff, Re-
spondent had 24 outstanding service calls. On June 14, the
week before Seals presented his medical clearance, Respondent
had 27 outstanding service calls. On June 24, 3 days after Seals
was able to return to work, Respondent had 24 outstanding
service calls. Stock’s testimony that the backlog of service calls
had been eliminated at the time of Peterson’s layoff was plainly
false. Not only did the number of outstanding service calls not
diminish, it grew at a rapid rate. Respondent averaged 20 open
service calls in May, 25 in June, 26 in July, 33 in August, and
44 in September, a 120-percent increase in 4 months.
Stock testified he has never had a policy or practice of recall-
ing laid-off employees. Yet, in this case, Stock had five oppor-
tunities to inform Seals and Peterson of that policy: on April 17
when Stock told Peterson there was no more work for him, on
April 23 when he laid Peterson off, on April 29 when Peterson
called Stock, on June 21 when Seals presented his medical
clearance to work, and on June 27 when Peterson confronted
Stock face to face. On none of these occasions did Stock tell
Peterson or Seals that he did not have a recall policy. To the
contrary, I credit the testimony that Stock made commitments
to both Peterson and Seals that they would be reemployed if
there was sufficient work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1024
For these reasons, as well as my observations of Stock’s de-
meanor and taking into consideration all of his testimony, I
found Stock to be a less than candid witness and I credit his
testimony only where indicated.
The General Counsel’s witnesses were more credible than
Stock. Peterson was a smart witness who wisely admitted mis-
representing his work experience on his application and during
his interview with Stock. He was nonconfrontational, but
equally sharp, on both direct and cross-examination. His testi-
mony was also consistent with other evidence in the case. Pe-
terson’s testimony that Stock told him he had sufficient work
for him to keep him employed was corroborated by Respon-
dent’s payroll records, employee timecards, and job logs, all of
which showed Respondent had more than enough work to keep
Peterson employed. I credit Peterson’s testimony in all respects.
Seals was a somewhat less credible witness. I found unper-
suasive Seals’ attribution to Stock of his use of the word
“scam” on two separate occasions when he referred to the CIU.
First, Seals was instructed by Dorris to keep a diary of his con-
versations with Stock and nowhere in that diary did Seals re-
cord any such reference by Stock. Second, Stock knew he was
the subject of a sustained organizing effort by the union at the
time of his conversations with Seals. He had already encoun-
tered union job applicants coming to his office accompanied by
Dorris, and he had lost two employees to the union apprentice-
ship program. Between the time of Seals’ first and second ap-
plications, Stock had signed a collective-bargaining agreement
with the CIU and had amended his hiring policies to include a
statement on Respondent’s job application that the application
was only valid for 30 days. Stock was surely sophisticated
enough in the methodology of union salting not to “confide” in
a job applicant. I have therefore credited portions of Seals’
testimony and discredited others.
C. The Layoff and Failure to Recall Seals
On June 21, Seals presented Stock with medical clearance to
return to work. That same day, Trible advised Stock he was
resigning in 2 weeks. Both Trible and Seals had the same level
of experience, and both had worked exclusively in the Vandalia
area. Seals was therefore indistinguishable from Trible in terms
of his employability. Stock testified he based his decision not to
replace Trible with Seals on his current and projected work-
loads. The objective evidence, however, shows that Stock had
more than enough work to recall Seals. First, Stock admitted
that he had no intention of laying off Trible and had enough
work to keep him employed. If he had enough work to keep
Trible employed, he had enough work to keep Seals employed
when Trible left. Second, Respondent had an average of 25
open service calls in June and that number increased signifi-
cantly in the following months. At the same time, Respondent’s
employees were working significant amounts of overtime at
this time. In March, the total number of overtime hours worked
by all employees was 5. By June that number had jumped to
145 hours. Third, Stock had promised to make Seals the fore-
man of the KFC job and in June the bulk of that work had yet to
be performed.
Stock attempted to rationalize hiring Brummett instead of re-
calling Seals in two ways: first, that Seals was unwilling to go
to New Jersey, and second, that Seals was overly qualified to
fill the helper position that had been vacated by McElroy. Con-
trary to Stock’s assertion, I credit Seals’ testimony that Stock
never asked him if he were willing to go to New Jersey and, as
previously discussed, Stock did not consistently assign an ex-
perienced employee to work with a nonexperienced employee
in New Jersey.
The General Counsel has satisfied the Wright Line burden in
the case of Seals. Respondent had knowledge of Seals’ union
membership on April 15. Seals was injured on May 8, and the
credible evidence is that Stock said he would reemploy Seals if
and when he was medically cleared to work. Seals presented
that medical clearance on June 21, but Stock refused to reem-
ploy him for reasons that have been proven to be false and pre-
textual. The inference of wrongful motive remains intact and by
failing to recall Seals since June 21, Respondent has violated
Section 8(a)(1) and (3) of the Act.8
D. The Layoff and Failure to Recall Peterson
I credit Peterson’s testimony that he was hired as a part-time
employee and was told that the job would become full time. On
April 12, Stock told Peterson he needed him to work over the
weekend and the entire following week. Stock said that he had
more work coming in, that he liked Peterson’s work, and that
he was soon going to hire two or three more electricians. On
April 15, Peterson disclosed he was a member of the Union.
That afternoon Stock told Peterson he did not know if he would
have enough work for him to finish out the week. Such timing
between the exercise of protected conduct in relation to an ad-
verse employment decision is strong evidence of an unlawful
motive. Grand Central Partnership, 327 NLRB 966 (1999);
Trader Horn of New Jersey, Inc., 316 NLRB 194, 198 (1995).
Stock’s reason for laying Peterson off was false and pretex-
tual and constitutes further evidence of unlawful motivation.
Stock’s testimony was clear and unequivocal: he hired Peterson
to do service calls and he laid him off because the backlog of
service calls had been substantially eliminated. This was simply
not true. As discussed previously, the number of active service
calls more than doubled after Peterson’s layoff.
I credit Peterson’s testimony that from April 29 to June 27,
he repeatedly asked Stock to recall him to work. During that
same period of time, Stock hired Rick Carroll and Jerry Brum-
mett instead of reemploying Peterson. Stock attempted to jus-
tify this decision in three ways: first, that Peterson had said he
did not care to work in New Jersey; second, that when he hired
Carroll to replace Tomlinson, he needed to replace a foreman
with a foreman; and third, that when he hired Brummett to
replace McElvoy, Peterson was too qualified. All of these rea-
sons were proved false. First, I credit Peterson’s testimony that
he told Stock he was willing to travel to New Jersey. Second,
Tomlinson had only worked as an electrician for a year when
he was sent to New Jersey and had no foreman experience. In
any event, Stock knew that Peterson had 20 years’ experience

8 At the hearing, the General Counsel advanced the theory that an
additional motivation for Stock’s refusal to reemploy Seals was be-
cause Seals had sent the request for information to the CIU on April 30.
There is no evidence that Stock was aware that Seals sent that letter,
and I reject the General Counsel’s theory.
ADS ELECTRIC CO. 1025
as an electrician and on all the occasions that Peterson asked to
go back to work, Stock never once asked him if he had foreman
experience. Third, as previously stated, there were significant
periods of time when Stock had either experienced electricians
working together in New Jersey without a nonexperienced elec-
trician, or an experienced electrician working alone.
The General Counsel has satisfied the Wright Line burden in
the case of Peterson. The timing of Peterson’s layoff, and the
pretextual reasons proffered for his layoff and for the failure to
recall him, establish Respondent’s unlawful motivation in mak-
ing these decisions. But for Respondent’s discrimination
against him, Peterson would have, at a minimum, continued to
work on a part-time basis until May 14 when he would have
been hired as a full-time employee instead of Rick Carroll. By
engaging in this conduct, Respondent has violated Section
8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(3) and (1) of the Act
since April 23, 2002, by laying off Dennis Peterson and failing
to recall him to work.
4. Respondent has violated Section 8(a)(3) and (1) since June
21, 2002, by laying off Ron Seals and failing to recall him to
work.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent, having discriminatorily laid off and failed to re-
call Dennis Peterson and Ron Seals, must offer to them rein-
statement and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from the date of
discharge to the date of proper offer of reinstatement, less any
net interim earnings, as prescribed 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
Respondent, ADS Electric Company, Vandalia, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from

cision.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(a) Laying off, failing to recall, or otherwise discriminating
against employees because they support or engage in union
activities.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to Den-
nis Peterson full reinstatement to a full-time position or, if that
job does not exist, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges
previously enjoyed.
(b) Within 14 days from the date of this Order, offer to Ron
Seals full reinstatement to his former job or, if that jobs no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(c) Make Dennis Peterson and Ron Seals whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the
remedy section of the de
(d) Within 14 days from the date of this Order, remove from
their files any reference to the layoff and failure to recall Den-
nis Peterson and Ron Seals, and within 3 days thereafter, notify
them in writing that this has been done and that their layoff and
failure to be recalled will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Vandalia, Illinois, copies of the attached notice marked
“Appendix.”10 Copies of the notice, on forms provided by the
Regional Director for Region 14, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 23, 2002.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

WE WILL NOT lay off, fail to recall, or otherwise discriminate
against any of you for supporting Local 702, International
Brotherhood of Electrical Workers, ALF–CIO, or any other
union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Dennis Peterson full reinstatement to a full-time position,
or, if that job does not exist, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s Order,
offer Ron Seals full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Dennis Peterson and Ron Seals whole for any
loss of earnings and other benefits resulting from their layoff
and failure to be recalled, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful layoff and
failure to recall Dennis Peterson and Ron Seals, and WE WILL,
within 3 days thereafter, notify each of them in writing that this
has been done and that their layoff and failure to be recalled
will not be used against them in any way.

ADS ELECTRIC COMPANY