Frye Electric, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 2008

352 N.L.R.B. 345 (N.L.R.B. 2008)

FRYE ELECTRIC, INC.
352 NLRB No. 53
345
Frye Electric, Inc. and International Brotherhood of
Electrical Workers, Local 481, a/w International
Brotherhood of Electrical Workers, AFL–CIO.
Case 25–CA–30270
April 28, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On October 19, 2007, Administrative Law Judge Paul
Buxbaum issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed an answering brief.1
The National Labor Relations Board has considered
the decision and the record in lights of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions as modified and to adopt his rec-
ommended Order as modified below.3

1 On March 31, 2008, the General Counsel filed a Notice of Issuance
of Sec. 10(j) Injunction and Motion to Expedite Decision. The motion
is granted.
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.
We dismiss the complaint allegation that the Respondent interro-
gated employees in violation of Sec. 8 (a)(1). We find in this regard
that the record is unclear as to whether Respondent’s vice president of
operations, Rick Miers’, statement to employee Thomas Fosnight was
an inquiry that amounts to an interrogation, as alleged.
The judge found that, under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
the General Counsel must meet a 4-prong evidentiary standard. To
establish a violation under Wright Line, the General Counsel bears the
burden of showing that union animus was a motivating or substantial
factor for the adverse employment action. The elements commonly
required to support such a showing are union or protected concerted
activity by the employee, employer knowledge of that activity, and
union animus on the part of the employer. See, e.g., Consolidated Bus
Transit, Inc., 350 NLRB 1064, 1065–1066 (2007); Desert Springs
Hospital Center, 352 NLRB 112 (2008). Chairman Schaumber notes
that the Board and the circuit courts of appeal have variously described
the evidentiary elements of the General Counsel’s initial burden of
proof under Wright Line, sometimes adding as an independent fourth
element the necessity for there to be a causal nexus between the union
animus and the adverse employment action. See, e.g., American Gar-
dens Management Co., 338 NLRB 644, 645 (2002). As stated in
Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), since Wright
Line is a causation standard, Chairman Schaumber agrees with this
addition to the formulation, which the judge applied here.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and order that the Respondent, Frye
Electric, Inc., Avon, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Delete paragraph 1(b) and reletter the subsequent
paragraph.
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against Thomas Fosnight, Dennis Hensley, or any of our
other employees for supporting, engaging in activities on
behalf of, or seeking assistance from, the International
Brotherhood of Electrical Workers, Local 481, AFL–
CIO, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Thomas Fosnight and Dennis Hensley full rein-
statement 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 privi-
leges previously enjoyed.
WE WILL make Thomas Fosnight and Dennis Hensley
whole for any loss of earnings and other benefits result-

decisions and orders in unfair labor practice and representation cases.
See Sec. 3 (b) of the Act.
We shall modify the recommended Order to conform to the viola-
tions found.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD346
ing form their discharge, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges of Thomas Fosnight and Dennis Hensley, and
WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the discharges
will not be used against them in any way.
FRYE ELECTRIC, INC.
Raifael Williams, Esq., for the General Counsel.
Michael L. Einterz, Esq., of Indianapolis, Indiana,
for the Respondent.
Steve Dunbar, of Indianapolis, Indiana, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried in Indianapolis, Indiana, on July 23, 2007.1 The charge
was filed March 5, and it was amended on May 23. The com-
plaint was issued May 29.
The complaint alleges that the Company wrongfully dis-
charged two of its employees, Thomas Fosnight and Dennis
Hensley, because of their protected union activities. It is also
alleged that an agent of the Company, Rick Miers, coercively
interrogated Fosnight about his union activities. The General
Counsel asserts that these actions violated Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act). The Com-
pany filed an answer denying the material allegations of the
complaint. As described in detail in the decision that follows, I
conclude that the Company did violate the Act in the manner
alleged by the General Counsel.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, engages in the business of
electrical contracting at its facility in Avon, Indiana, where it
annually performs services valued in excess of $50,000 for
customers located outside the State of Indiana. The Company
admits3 and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.

1 All dates are in 2007, unless otherwise indicated.
2 While the transcript of the proceedings is generally accurate, a few
errors require correction. [Certain errors in the transcript have been
noted and corrected.]
3 See the Company’s answer to the complaint, pars. 2 and 3. (GC
Exh. 1(g).)
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Frye Electric, an Indiana corporation, was founded over 30
years ago by its president, Harold (Hal) Frye. It has two types
of operations in the electrical contracting field, residential and
commercial. The residential work typically consists of service
calls for repairs to lights, plugs, and switches. Commercial
work involves both repair and construction assignments, in-
cluding installation of light fixtures, panels, and switches. The
workload is evenly divided between the two components.
At all relevant times, the Company has employed approxi-
mately 35 persons, including 29 nonsupervisory and nonclerical
personnel. These consist of two classifications, lead electri-
cians and helpers. The work force is not represented by a labor
organization. There are three managerial employees, Frye,
Miers, and Gregory Wells.4 Miers is the vice president of op-
erations and the number two ranking official in the Company.
Wells is director of operations. Both men report directly to the
president, Frye. Generally speaking, Wells manages the resi-
dential division and Miers is in charge of the commercial side.
The remaining key participants in the events of this case are
two employees of the Company, Fosnight and Hensley. Fos-
night, a lead electrician, was originally hired by the Company
in April 2000. He remained in that position until December 5,
2005. The circumstances of his departure in 2005 are some-
what unclear. The attorneys did not ask Fosnight for his ac-
count of what led to his departure from employment. Initially,
Frye was unequivocal in asserting that Fosnight was fired, “be-
cause he was smoking pot during company time in a company
truck.” (Tr. 63.) Under further examination by counsel for the
General Counsel, Frye retreated from this contention. He was
shown personnel records indicating that Fosnight had twice
smoked marijuana in a company vehicle. According to the
records, he was given a warning for the first offense. On the
second occasion, the personnel file reflects that:
Tom smoked again (in truck?)[.] He was told to take 3 days
off (w, th, f) by Rick M[iers]. Tom came in and quit on Mon-
day (Dec. 5th)?
(GC Exh. 7, p. 2.) After examining this record, Frye testified
that, “I’m not sure if he quit or not.” (Tr. 65.)
Wells provided a different version, indicating that Fosnight
was suspended for 5 days for smoking pot in the van. As he
described it, “I told him to take five days off of work, and he
never came back.”5 (Tr. 76.) On balance, I conclude that both

4 The Company concedes that these men are all supervisors and
agents within the meaning of the Act. See the Company’s answer to
the complaint, par. 4, as supplemented by counsel for the Company’s
trial stipulation. (GC Exh. 1(g); Tr. 9.)
5 This bit of history regarding Fosnight is illustrative of the difficul-
ties I have in accepting the testimony of the Company’s managers.
Frye made a clear-cut statement that crumbled under further explora-
tion. Wells gave an equally adamant account that contradicted the
Company’s own records in two key aspects. While Wells claimed that
he was the person who suspended Fosnight and that the suspension was
for a period of 5 days, the records indicate that Miers imposed the
disciplinary action and that the period of suspension was actually 3
FRYE ELECTRIC, INC. 347
Wells’ version and the description in the personnel file support
the conclusion that Fosnight was suspended for marijuana us-
age and quit as a result.
It is undisputed that Fosnight was hired for a second time as
a lead electrician in June 2006. This was initiated through
communications involving Fosnight’s brother who had contin-
ued to be employed by the Company. Fosnight testified that
Frye asked his brother to invite him to return to employment.
Subsequently, Fosnight met with Frye and Miers. He agreed to
return to work, subject to certain conditions. He requested and
received a wage increase. In addition, he explained that family
and other commitments precluded him from accepting on-call
assignments. This refers to the Company’s practice of making
rotating weekly assignments of employees to be available after
hours and on weekends for emergency service calls. Fosnight
testified that Miers and Frye agreed to these terms of employ-
ment.6 As a result, Fosnight returned to duty on June 20, 2006.
Just over 2 months later, Hensley joined the Company’s
work force. He had been working on hurricane reconstruction
in Alabama. He testified that this work was disappearing, lead-
ing him to contact Fosnight, whom he characterized as his
“long-time friend.” (Tr. 155.) Fosnight informed him that Frye
was looking for staff. As a result, Hensley drove to Indiana to
complete an application. A week later, he was hired by the
Company as a helper. He was informed of the decision to hire
him by Fosnight. His original assignment was for commercial
work, typically helping an electrician named Tom Odell.
Matters continued in this posture until mid-to-late January.
At that time, management decided to alter Fosnight’s condi-
tions of employment by requiring him to participate in the on-
call assignment rotation.7 Wells testified that he and Miers met
with Fosnight to inform him of this change. According to
Wells, Fosnight responded by stating, “I’ll see what I can do.”
(Tr. 102.) Nevertheless, Wells indicated that, after making that
statement, Fosnight “cops a little attitude and walked out.” (Tr.
102.) Fosnight confirmed the meeting and reported that he
complained to the supervisors that he did not think this change
in his conditions of employment was fair due to their prior un-
derstanding regarding this issue.
The parties agree that Wells and Fosnight had a second dis-
cussion about the on-call duty approximately a week or 2 later.
Wells reported that Fosnight, “[R]efused to take on call, he
wasn’t going to do it.” (Tr. 102.) Fosnight indicated that Wells
became “loud and verbally abusive with me.” (Tr. 138.) He
told Fosnight that “I could either take the call or I could be

days. This forms part of an overall pattern of incorrect and implausible
assertions by the three managers that lead me to conclude that their
testimony was unreliable.
6 In addition to being uncontroverted by any management witnesses,
Fosnight’s account of his agreement with the Company regarding the
terms of his rehire is also supported by the fact that he was not assigned
on-call duties during the vast majority of his period of employment.
His first on-call assignment was not scheduled to begin until March 23,
almost a month after his termination.
7 There was testimony that other employees were unhappy that Fos-
night had been exempt from this duty. While the Company did not
present evidence as to the reasons for altering Fosnight’s terms of hire,
this factor may well explain it.
terminated.” (Tr. 139.) Fosnight disputed Wells’ assertion that
he refused the assignment. Instead, he testified that “I said
nothing. I bit my lip, turned around and walked out.” (Tr.
139.)
I resolve this conflict in the testimony by noting that the
Company’s subsequent actions support Fosnight’s account.
That account indicates that Fosnight expressed disgruntlement
with the decision to place him on the emergency schedule, but
never made a statement refusing to perform the assignment.
This is entirely consistent with the Company’s action placing
his name on the posted list for future on-call assignments. I
conclude that it would have been odd for the Company to have
taken such action in the face of an unequivocal refusal to accept
the duty. Had Fosnight taken such a definitively negative
stance, one would assume that the Company would have im-
plemented its decision to terminate his employment for such a
refusal. This, coupled with my general conclusion that the
managers’ testimony was unreliable, leads me to accept Fos-
night’s version of the parties’ conversations during their meet-
ings regarding the on-call schedule.
In any event, it is undisputed that management proceeded to
implement its decision to require Fosnight to participate in the
on-call rotation by posting a schedule showing that Fosnight
would have his first on-call assignment commencing on March
23. It is clear that the decision to alter Fosnight’s conditions of
employment led to his disaffection with his job. In February,
he contacted the Union, speaking with Organizer Steve Mont-
gomery. Fosnight explained that his purpose was “to see, you
know, what kind of benefits and everything they had available.
If they had any job openings, as well.” (Tr. 130–131.) By this
time, Hensley had been transferred to duties on the residential
side and was frequently assigned to work as Fosnight’s helper.
He testified that, on February 21, while they were working as a
team, Fosnight told him that he planned to meet with a union
representative on the following day.
On February 21, Fosnight did meet with Montgomery at the
union hall. They discussed the Union’s benefits, and Mont-
gomery instructed Fosnight to “speak to anybody else that may
be interested . . . as going into the union as well as myself.”
(Tr. 133.) Montgomery presented Fosnight with a booklet that
outlined the Union’s wages and fringe benefits and solicited
Fosnight to “help organize Frye Electric.” (Tr. 172.) Finally,
during the meeting, Fosnight completed an application form for
membership in the Union. On the form, he listed his employ-
ment history. Regarding his current employment, he noted that
“I am having conflic[t]s with the management making promises
and going back on them.” (GC Exh. 8, p. 2.) In his testimony,
he explained that he was referring to the issue of the on-call
assignment.
Two days later, on the morning of February 23, Fosnight and
Hensley were present in the Company’s breakroom prior to
making their service calls. A number of other employees were
also present, including Keith Shepard, Corey Trotter, Shannon
Reed, and Mike Cook. They were located “a couple of feet”
from Fosnight and Hensley. (Tr. 135.) At that time, Fosnight
began to recount to Hensley what he had learned regarding the
benefits of membership in the Union. He specifically ad-
dressed issues such as wages, benefits, and scheduling of work
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD348
assignments. In conjunction with this discussion, he showed
Hensley the booklet that he had been given describing the Un-
ion’s advantages. Fosnight testified that he “[m]entioned to
[Hensley] about coming and joining the union, as well, and
putting an application in.” (Tr. 135.) He further testified that
Hensley said he was “interested” in doing so. (Tr. 135.)
Hensley confirmed Fosnight’s account of their conversation,
noting that other employees were within “arm’s reach” and
“could have easily, probably, have heard what we were talking
about.” (Tr. 158.)
Fosnight and Hensley’s discussion of the Union occurred on
a Friday. On the following Tuesday, the events of this case
reached their culmination. On that day, Fosnight and Hensley
were assigned to work together. They took a company van and
proceeded to make service calls. It is undisputed that, during
the course of the day, the Company’s management decided to
fire both of these employees. Surprisingly, the managers’ tes-
timony as to how this came about was in substantial conflict.
Wells reported that he spoke to Frye by telephone. He recom-
mended that both Fosnight and Hensley be terminated. Wells
was very clear in asserting that he and Frye jointly “[d]ecided
what they were going to do.” (Tr. 104.) He noted that, regard-
ing Fosnight, Frye told him that “I think it’s time just to part
ways.” (Tr. 86.) Similarly, Wells testified that both men dis-
cussed Hensley’s situation and concluded that he should be
fired. He confirmed counsel for the General Counsel’s asser-
tion that, “both of you made the decision to discharge Mr.
Hensley.” (Tr. 90.)
Wells’ account would seem like a straightforward example
of a company president and the director of its residential de-
partment discussing and determining whether to discharge two
employees of that residential operation. Nevertheless, it is
directly contradicted by Frye’s own version of this decision-
making process. For example, counsel for the General Counsel
explored with Frye the nature of that process regarding Hensley
as follows:
COUNSEL: Now did you have any participation at all in
the decision to discharge Mr. Hensley?
FRYE: No.
COUNSEL: Do you know when the decision was made
to discharge Mr. Hensley?
FRYE: No.
COUNSEL: Do you know if anyone conducted an in-
vestigation or anything like that prior to Mr. Hensley’s
discharge?
FRYE: I wouldn’t know that.
COUNSEL: You don’t know?
FRYE: No.
(Tr. 58.) Similarly, counsel asked Frye who made the decision
to fire Fosnight and when it was made. He flatly indicated that
Wells had made that determination and that he had no idea
when the decision had been made. Specifically, he was asked if
Wells had consulted him prior to Fosnight’s discharge and he
responded, “I don’t believe so.” (Tr. 54.)
This stark contrast between the testimonies of the two man-
agers is highly probative on the overall questions of exactly
what happened and what motivated the Company’s officials to
make it happen. It is certainly reasonable to expect that the two
supervisors would be able to provide a consistent explanation
of the manner in which it was decided to discharge the two
employees. In this regard, I note that the events under exami-
nation took place only a matter of months before the trial of this
case. The Company is a relatively small employer and the
firing of two employees on the same day was surely a notewor-
thy and unusual event.8 Despite this, the Company was unable
to present a coherent account of how it was decided to make
these important employment decisions.
In Black Entertainment Television, 324 NLRB 1161 (1997),
the Board endorsed an earlier observation by an administrative
law judge that “[t]he Board has long expressed the view that
when an employer vacillates in offering a rational and consis-
tent account of its actions, an inference may be drawn that the
real reason for its conduct is not among those asserted.” [Inter-
nal quotation marks and citation omitted.] I readily draw such
an inference in this situation, noting particularly that Frye’s
professions of a degree of ignorance amounting to blithe indif-
ference regarding the decision to terminate two employees on
the same day suggests that he was attempting to distance him-
self from responsibility for an improperly motivated course of
conduct. It is far more likely that, as Wells described, the two
men discussed the matter and reached a joint decision to pro-
ceed with such consequential personnel actions.
After Wells and Frye decided to fire the two men, it fell to
Wells to make the necessary announcements. At the conclu-
sion of the workday, Fosnight and Hensley returned to the
Company’s facility. While Hensley proceeded to unload tools
from the van, Fosnight went inside to clock out for the day.
Fosnight testified that Wells approached him and stated that
“they were parting ways with me.” (Tr. 136.) Wells agreed,
reporting that he told Fosnight that “[w]e feel that it’s just best
for us to part ways.”9 (Tr. 106.)
According to Wells, upon being fired, Fosnight responded,
“[w]hatever,” and walked out the door. (Tr. 106.) Shortly
thereafter, he returned, throwing the keys to the Company’s van
at Wells. The two men had no further conversation and Fos-
night left the premises. On the other hand, Fosnight testified
that he asked Wells for an explanation of why he was being
terminated. Wells declined to discuss it. Fosnight removed his
things from the van and walked back inside. He handed Wells
the keys and left the premises.
As to these conflicting accounts of what transpired after
Wells told Fosnight he was discharged, I credit Fosnight’s. It
comports with a common sense appreciation of human behavior
in this unhappy situation to conclude that a man who has just

8 Wells testified that, during a typical year, the Company discharges
between one and three employees for reasons of poor attitude or per-
formance. Thus, the firing of Fosnight and Hensley on the same day
was roughly equivalent to a normal year’s worth of such activity.
9 Wells’ choice of language provides additional support to his ac-
count of how he and Frye decided to fire the employees. It will be
recalled that Wells testified that Frye confirmed the decision to fire
Fosnight by observing to Wells that “I think it’s time just to part ways.”
(Tr. 86.) Unsurprisingly, Wells used Frye’s exact phrasing to convey
their decision to Fosnight. Indeed, he was careful to use the same lan-
guage when firing Hensley as well.
FRYE ELECTRIC, INC. 349
been told that he has been deprived of his means of earning a
living would attempt to learn why this was being done to him.
To believe that a person in Fosnight’s position, having heard
such startling and unpleasant news from his boss, would simply
shrug it off as Wells claims is to ignore basic human emotions.
Following his termination, Fosnight told Hensley what had
just happened to him. Hensley testified that he asked Fosnight
why he had been fired. Fosnight explained that Wells, “didn’t
give me any reason.” (Tr. 160.) Hensley proceeded to enter
the facility in order to clock out himself. Once inside, Wells
approached and told Hensley that he was discharged. As Wells
testified, he told Hensley that “it’s best we part ways.” (Tr.
110.) Both men agree that Hensley asked for a reason for his
firing. Wells’ response was to state, “[L]et’s just leave it as the
best course to part ways.” (Tr. 110–111.) Hensley then left the
premises and telephoned his wife to report the bad news.
While driving home a few minutes after these events, Fos-
night decided to telephone Miers. Fosnight testified that he
asked Miers about his termination and Miers, “told me he had
only learned about [it] minutes previous to it and then asked me
what was this about biding my time ‘till the union called.” (Tr.
136.) Miers confirmed that Fosnight phoned him shortly after
his termination and asked him, “if I knew what was going on
and why.” (Tr. 198.) He reported that he responded by telling
Fosnight that “Tom, I don’t know what’s going on yet. I said,
once I find out, I said I’ll let you know.” (Tr. 198.) This ended
their conversation and they have never spoken since. Miers
specifically denied making any reference to the Union during
this phone call.
Once again, I must resolve a flat contradiction between these
accounts. In doing so, I note that Miers’ version strikes me as a
highly unlikely course of action for a management official to
take. I find it very peculiar for a manager outside the normal
chain of authority for the residential operation, on learning of
the discharge of a residential employee, to promise the em-
ployee that he would investigate the matter and report back to
the now-fired worker. Indeed, reinforcing my conclusion in
this regard is the fact that Miers readily conceded that he did
not perform any such investigation and did not report back to
Fosnight at any time thereafter. His feeble excuse for breaking
his supposed commitment to do so was simply that Fosnight,
“didn’t call me back. Obviously, he wasn’t interested as to why
[he had been fired].” (Tr. 202.) I reject this illogical picture of
events and credit Fosnight’s testimony that Miers gave him a
veiled account of the true reason for his discharge through the
mechanism of posing a question about Fosnight’s union activi-
ties.
It will be recalled that the Company’s explanation of the
opening chapter of the events involving the discharges at issue
in this case was marked by contradictory testimony. Frye and
Wells were unable to present a coherent account of the manner
in which they decided to fire the two employees. It is notewor-
thy that the final chapter of this tale was similarly clouded by
the Company’s inability to explain a matter as simple as the
post-discharge documentation of the firings.
It is uncontroverted that, at the time they were fired, Fos-
night and Hensley were not given any written documentation
regarding their terminations. Instead, Wells testified that he
prepared such reports, “[r]ight after they walked out the door.”
(Tr. 108.) However, when shown the actual reports, he noted
that they were dated as of the following day, February 28. As a
result, he had to concede that he had actually prepared these
reports on the following day. Taken in isolation, this would be
a minor point. However, viewed in the context of a string of
inaccuracies and contradictions, it underscores the conclusion
that the Company has been unable to provide a rational and
consistent account of its behavior regarding the key events of
this case.
To round out the history of this matter, Fosnight testified that
he contacted Montgomery on the day after his termination. He
advised Montgomery that he had been terminated and that “the
only excuse I got was they asked me why I was biding my time
‘till the union called.’” (Tr. 140.) Montgomery referred him to
another union official, Steve Dunbar. On March 1, Dunbar met
with both Fosnight and Hensley. During the course of this
meeting, Hensley prepared a union application form. That form
was misplaced. As a result, Hensley completed a second appli-
cation on March 6. It indicates that Fosnight was the person
who had referred him to the Union. Finally, I note that the
Union filed the original charge in this case on March 5, and an
amended charge on May 23. The complaint issued on May 29.
B. Legal Analysis
1. The discharges of Fosnight and Hensley
In assessing the legality of the Company’s terminations of
Fosnight and Hensley, the key inquiry will focus on the ques-
tion of the employer’s motivation. As a result, I must apply the
analytical framework for analysis devised by the Board in
Wright Line.10 A comprehensive distillation of that test was
provided by the Board in American Gardens Management Co.,
338 NLRB 644, 645 (2002):
Wright Line is premised on the legal principle that an
employer’s unlawful motivation must be established as a
precondition to finding an 8(a)(3) violation. In Wright
Line, the Board set forth the causation test it would hence-
forth employ in all cases alleging violations of Section
8(a)(3). The Board stated that it would, first, require the
General Counsel to make an initial showing sufficient to
support the inference that protected conduct was a moti-
vating factor in the employer’s decision. If the General
Counsel makes that showing, the burden would then shift
to the employer to demonstrate that the same action would
have taken place even in the absence of the protected con-
duct. The ultimate burden remains, however, with the
General Counsel.
To establish his initial burden under Wright Line, the
General Counsel must establish four elements by a pre-
ponderance of the evidence. First, the General Counsel
must show the existence of activity protected by the Act.
Second, the General Counsel must prove that the respon-
dent was aware that the employee had engaged in such ac-

10 251 NLRB 1083 (1980), enf. 662 F.2d 889 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD350
tivity. Third, the General Counsel must show that the al-
leged discriminatee suffered an adverse employment ac-
tion. Fourth, the General Counsel must establish a motiva-
tional link, or nexus, between the employee’s protected ac-
tivity and the adverse employment action.
If, after considering all of the relevant evidence, the
General Counsel has sustained his burden of proving each
of these four elements by a preponderance of the evidence,
such proof warrants at least an inference that the em-
ployee’s protected conduct was a motivating factor in the
adverse employment action and creates a rebuttable pre-
sumption that a violation of the Act has occurred. Under
Wright Line the burden then shifts to the employer to
demonstrate that the same action would have taken place
even in the absence of the protected conduct. [Internal
quotation marks, citations, footnotes, and language not
relevant to this case have been omitted.]
In applying its Wright Line test, the Board mandates consid-
eration of a wide range of evidence and appropriate inferences
derived from that evidence. In West Maui Resort Partners, 340
NLRB 846, 847 (2003), rev. dismissed 2004 WL 210675 (D.C.
Cir. 2004), it observed:
Proof of discriminatory motivation can be based on direct
evidence or can be inferred from circumstantial evidence
based on the record as a whole. To support an inference of
unlawful motivation, the Board looks to such factors as incon-
sistencies between the proferred reason for the discipline and
other actions of the employer, disparate treatment of certain
employees compared to other employees with similar work
records or offenses, deviation from past practice, and prox-
imity in time of discipline to the union activity. [Citations
omitted.]
Keeping these principles in mind, I will now examine the facts
and circumstances involved in the discharges at issue.
Initially, the General Counsel must show that the employees
engaged in protected activities within the meaning of the Act.
Of course, it is clear that Fosnight, spurred by dissatisfaction
with the decision to require him to perform on-call duty, con-
tacted the Union and applied for membership in it. Thereafter,
he discussed the Union with a fellow employee, Hensley. As
Hensley put it, Fosnight told him about the “benefits of the
union.” (Tr. 158.) Without doubt, Fosnight’s course of con-
duct represented a classic example of activities protected by the
Act.
The situation is only slightly less clear regarding Hensley’s
involvement in protected union activities. While recognizing
that Hensley did not apply for membership until after his dis-
charge, it is apparent that he did engage in discussions with
Fosnight regarding the Union. When Fosnight solicited
Hensley to join, he “said he was interested.” (Tr. 135.) By
engaging in such discussions about the benefits of union mem-
bership, Hensley placed himself within the protections of the
Act.11

11 Even if I were to find that Hensley had not engaged in protected
activity, his discharge would be unlawful. His situation is similar to
that presented in Martech Medical Products, 331 NLRB 487 (2000),
Having found that the two employees engaged in protected
union activities, I must next determine whether the Company
was aware of their involvement in this conduct. Turning first to
Fosnight, I conclude that there is direct evidence that manage-
ment was aware of his union activities. It will be recalled that
immediately after he was discharged, Fosnight telephoned
Miers and inquired why he had been fired. Miers responded by
asking Fosnight, “[W]hat was this about biding my time ‘till the
union called.” (Tr. 136.) This statement by the Company’s
second highest ranking official clearly shows knowledge of
Fosnight’s union activities.12
In addition to direct evidence of knowledge about protected
activities, the Board turns to analysis of a variety of other fac-
tors in assessing this element of the Wright Line test. This was
comprehensively explained in Montgomery Ward & Co., 316
NLRB 1248, 1253 (1995), enf. 97 F.3d 1448 (4th Cir. 1996), as
follows:
[A] prerequisite to establishing that [employees] were
wrongfully discharged is finding that the Respondent
knew of their union activities. This “knowledge” need not
be established directly, however, but may rest on circum-
stantial evidence from which a reasonable inference of
knowledge may be drawn. Indeed, the Board has inferred
knowledge based on such circumstantial evidence as: (1)
the timing of the allegedly discriminatory action; (2) the
respondent’s general knowledge of union activities; (3)
animus; and (4) disparate treatment. The Board addition-
ally has relied on factors including the delay between the
conduct cited by the respondent as the basis for the disci-
pline and the actual discharge, and—in the case of multi-
ple discriminatees—that the discriminatees were simulta-
neously discharged.
Finally, the Board has inferred knowledge where the
reason given for the discipline is so baseless, unreason-
able, or contrived as to itself raise a presumption of
wrongful motive. Even where the employer’s rationale is
not patently contrived, the Board has held that the “weak-
ness of an employer’s reasons for adverse personnel action
can be a factor raising a suspicion of unlawful motiva-
tion.”

enf. 6 Fed. Appx. 14 (D.C. Cir. 2001). In that case, an employee who
had not engaged in union activity was fired along with other active
union supporters. The employee was known to eat lunch with the ac-
tivists, one of whom was her sister. The Board found her discharge to
be unlawful, noting that “the discharge of an employee who is not
known to have engaged in union activity, but who has a close relation-
ship with a known union supporter may give rise to an inference of
discrimination.” Supra at 488. Hensley was known as a close friend of
Fosnight. Indeed, the Company chose to have Fosnight call Hensley to
inform him that he had been hired. The two men were often assigned
to work as a team. I conclude that, at a minimum, Hensley was tar-
geted due to his friendship with Fosnight.
12 The fact that this direct evidence of knowledge arose after Fos-
night’s discharge is immaterial. The situation is virtually identical to
that presented in Davey Roofing, Inc., 341 NLRB 222, 223 (2004),
where an employer’s knowledge was established when a discharged
employee was interrogated about his union involvement 1 week after he
had been fired.
FRYE ELECTRIC, INC. 351
The factors on which the Board relies when inferring
knowledge do not exist in isolation, but frequently coexist.
For example, in BMD Sportswear Corp., the Board re-
versed the judge and found that the General Counsel had
established that alleged discriminatees were unlawfully
laid off, even in the absence of direct evidence that the
employer knew of their union activities. There the re-
spondent had demonstrated antiunion animus, discrimi-
nated against other employees, proffered unsubstantiated
reasons for the layoff, and the layoffs were proximate to
the start of the union organizing campaign. [Footnote and
numerous citations omitted.]
Turning to the application of these factors, it is first vital to
note the temporal relationship between the employees’ break-
room conversation and the disciplinary action taken against
them. Fosnight and Hensley engaged in a favorable discussion
about the Union on the morning of Friday, February 23. Dur-
ing their conversation at least four fellow employees were lo-
cated within easy hearing distance. I readily infer that it was
probable that their conversation was overheard and became the
subject of discussion among other persons associated with the
Company.13 Significant confirmation of this was provided by
Miers. He testified that, while he was unaware of the dis-
charged employees’ union activities on the date of their dis-
charge, he learned of it on the very next day. He reported that
he gained this knowledge, “through fellow employees, scuttle-
butt.” (Tr. 198.) Significantly, it was on the second succeeding
workday after their breakroom discussion that the two men
were fired.
I conclude that Miers’ contention that he encountered this
scuttlebutt only on the day after the discharges is all too con-
venient. In its so-called “small plant doctrine,” the Board has
long recognized that it is reasonable to infer that management
of a small firm is likely to gain knowledge of the identity of
employees who are involved in union activities. See Wiese
Plow Welding Co., 123 NLRB 616 (1959); D & D Distribution
Co. v. NLRB, 801 F.2d 636 at fn. 1 (3d Cir. 1986) (“The es-
sence of the small plant doctrine rests on the view that an em-
ployer at a small facility is likely to notice activities at the plant
because of the closer working environment between manage-
ment and labor.”); and LaGloria Oil & Gas Co., 337 NLRB
1120, 1123 (2002), affd. 71 Fed. Appx. 441 (5th Cir. 2003).
Miers’ admission that there was virtually contemporaneous
scuttlebutt about the union activity strongly supports the valid-
ity of the application of the small plant doctrine to the facts of
this case.
In addition to the inference I have drawn based on the likeli-
hood that Fosnight and Hensley’s conversation about the Union
was overheard and reported to management, other powerful
circumstantial evidence supports a finding of knowledge of the
protected union activity. One of the most compelling items of
that proof is the timing of the discharges. As a labor law judge,

13 The Board has not hesitated to draw the same conclusion in simi-
lar circumstances. See, for example, Verizon Wireless, 349 NLRB 640,
643 (2007) (where employee’s comments were made in a work area
occupied by coworkers, “[i]t is thus reasonable to assume that others
likely overheard.”)
I am often struck by the power of emotions such as anger and
fear to trump the wiser and more rational aspects of human
nature resulting in a virtual compulsion to take revealingly
hasty action in response to union activity. This case presents a
classic example of this phenomenon.
Fosnight and Hensley discussed the benefits of the Union in
a conversation conducted in the presence of a number of fellow
employees. The conversation took place on Friday, February
23. The men were discharged on the following Tuesday, Feb-
ruary 27. Thus, the lapsed time between these two events was
only two workdays. Decades ago, an appellate court hit upon a
felicitous phrase to describe the conclusion that may properly
be drawn from such a close proximity. In NLRB v. Rubin, 424
F.2d 748, 750 (2d Cir. 1970), similar facts prompted the court
to affirm a finding of unlawful discrimination, based in signifi-
cant part on “stunningly obvious timing.”14 I do not hesitate to
draw the same inference here.
The Board also applies a related concept when assessing the
circumstantial evidence regarding an employer’s behavior.
Once again citing the Second Circuit, the Board has noted that
“[t]he abruptness of the discharge[ ] and [its] timing are ‘per-
suasive evidence’ that the company had moved swiftly to eradi-
cate the . . . prime mover[ ] of the union drive.” Toll Mfg. Co.,
341 NLRB 832, 833 (2004), citing Abbey’s Transportation
Services v. NLRB, 837 F.2d 575, 580 (2d Cir. 1988). Here, the
abruptness of the discharges is noteworthy. As counsel for the
General Counsel observes:
The fact that the respondent waited until after Fosnight’s and
Hensley’s termination to prepare [termination] reports sug-
gests that respondent was in a hurry to discharge Fosnight and
Hensley first and think of the reasons for their discharges af-
terwards.
(GC Br. at pp. 7–8.) I find the precipitous timing and the
abrupt nature of the terminations in this case to be highly pro-
bative of unlawful activity.
Yet another piece of the inferential puzzle is added by noting
that the Company took action against both employees at the
same time. It will be recalled that this is unusual since, in a
typical year, this employer would terminate between one and
three employees for disciplinary reasons. Added to the rarity of
a multiple termination is the striking fact that the employees
chosen for termination happen to be the same employees who
were in a position to be overheard giving favorable considera-
tion to union organizing activity. As the Board has noted, a
“discriminatory discharge of one worker [is] a factor to con-
sider in weighing whether the contemporaneous discharge of a
second coworker, who engaged at the same time in the same
prounion activity, was discriminatory.” Yellow Enterprise Sys-
tems, 342 NLRB 804 (2004), citing Howard’s Sheet Metal,
Inc., 333 NLRB 361 (2001). See also Extreme Building Ser-

14 This phrase has been cited many times since, sometimes missing
its original attribution. See, for example, Gaetano & Associates, Inc.,
344 NLRB 531, 532 (2005) (“An inference of antiunion animus is
proper when—as here—the timing of a management decision is ‘stun-
ningly obvious.’ NLRB v. American Geri-Care, 697 F.2d 56, 60 (2d
Cir. 1982), cert. denied 461 U.S. 906 (1983).”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD352
vices Corp., 349 NLRB 914, 916 (2007) (earlier discharge of
employee for union activity “strongly supports” a finding of
unlawful motivation in discharge of second employee who
engaged in the same protected activity).
I find convincing proof of employer knowledge of union ac-
tivity from the direct evidence of Miers’ statement to Fosnight
coupled with the circumstantial evidence showing that the men
could readily have been overheard discussing the matter, the
ease of the dissemination of knowledge in a small facility, the
timing of the terminations, the abruptness with which the ter-
minations were accomplished, and the fact that the only em-
ployees who were considering union involvement were the
ones selected for simultaneous termination.
Beyond all this, there remains an equally powerful inferential
factor, the pretextual nature of the employer’s purported ration-
ales for the adverse employment decisions. The Board holds
that “the pretextual nature of the Respondent’s reasons for [an
employee’s] discharge supports an inference that the Respon-
dent had both knowledge of [the employee’s] protected activity
and animus towards that activity.” State Plaza, Inc., 347
NLRB 755, 757 (2006). (Citation omitted.) Because the issue
of pretext is also highly probative on the issue of antiunion
motivation, I will defer detailed discussion of it to that portion
of the Wright Line analysis. Suffice it to say that my finding of
pretext is an additional substantial element in my conclusion
that the employer knew of the protected union activity by Fos-
night and Hensley.
The next step in the Wright Line process is perhaps the sim-
plest, a determination as to whether the employees were subject
to an adverse action by their employer. In this case, Fosnight
and Hensley were given the ultimate employment sanction, the
termination of their means of earning a living.
Having found that Fosnight and Hensley engaged in pro-
tected union activity, that the management of the Company was
aware of their participation in that activity, and that the Com-
pany took adverse action against the men, it remains to deter-
mine whether there is a motivational link between the knowl-
edge of union activity and the subsequent discharges. The
starting point for this evaluation is the documentary record
prepared by the official who conveyed the decision for termina-
tion to the affected employees.
It is uncontroverted that, at the time of their discharges, nei-
ther employee was given any verbal explanation of the reason
for the adverse actions. In addition, I credit their testimony that
they never received any written documentation of the termina-
tions.15 In contradictory fashion, Wells first testified that he
prepared such reports, “[r]ight after they walked out the door.”
(Tr. 108.) Later, he conceded that he wrote the reports on the
following morning. Significantly, he also testified that those
reports were “intended as an internal document.” (Tr. 108.) I
credit this explanation for the purpose of these reports because
it is consistent with the fact that they were never issued to the
employees. Thus, they were not intended to serve as an expla-
nation to those employees for the action taken against them.

15 This is not seriously controverted. The best that Wells could offer
was that he was “not sure” if the men ever received their termination
reports. (Tr. 108.)
Rather, they must have been designed as a record of the per-
sonnel action created for the purpose of explaining that action
to others with a legitimate interest in comprehending the rea-
sons for the firings.
Wells prepared these two documents using the Company’s
preprinted form entitled, “termination report.” That form re-
quires the preparer to circle one of three possible reasons for an
employee’s departure from employment: “quit,” “insubordina-
tion,” or “reduction in force.” (GC Exhs. 3 and 5.) It also re-
quires the supervisor to rate the employee on a grading scale
ranging from excellent to unsatisfactory. The rating categories
are for attendance, cooperation, initiative, job knowledge, and
quality of work. The form also permits the evaluator to provide
customized details in a space set aside for that purpose. Fi-
nally, the preparer of the form must circle a recommendation
regarding the desirability of rehiring the affected employee.
Fosnight’s form shows that he was terminated from his posi-
tion as a lead electrician in the residential department due to a
“reduction in force.” (GC Exh. 3, p. 1.) The form’s evaluation
shows that Fosnight’s attendance was good and his job knowl-
edge and quality of work were satisfactory. His initiative was
described as fair, while his cooperation was characterized as
unsatisfactory. In the written remarks, Fosnight’s attitude was
deemed, “bad.” Two examples were cited, a claim that he was
the last person to arrive at work every morning and a notation
that he “did not want to do night duty (on call).” (GC Exh. 3, p.
1.) It was also recommended that Fosnight not be considered
for rehire.
Hensley’s termination report indicated that he was termi-
nated from his position as a helper in the residential department
due to a “reduction in force.” (GC Exh. 5.) His evaluation
grades were fair in all categories with the exception of an unsat-
isfactory rating in attendance. No explanatory details were
provided, but it was recommended that he not be considered for
rehire.
The documentary record created on the day after the termina-
tions indicates that Fosnight was terminated as part of a reduc-
tion in force. Apparently, he was selected for layoff due to a
bad attitude. Hensley’s termination was also due to a reduction
in force and it would appear that he was selected due to unsatis-
factory attendance.16
An important part of the motivational analysis involves an
examination as to whether the Company’s officials have been
consistent in their depiction of their reasoning supporting the
termination decisions. As the Board has observed, any lack of
consistency is important because, “[i]t is well established that
shifting of defenses weakens the employer’s case, because it
raises the inference that the employer is ‘grasping for reasons’
to justify an unlawful discharge.” Meaden Screw Products, 336
NLRB 298, 302 (2001).
Both Frye and Wells were carefully examined as to the rea-
sons for terminating their employees. Regarding Fosnight,

16 Although both termination reports classify the discharges as re-
sulting from a reduction in force, the Company presented no evidence
that it was conducting a layoff. To the contrary, Wells testified that “in
our business, day-to-day operations[,] everybody is so busy[.]” (Tr.
76.)
FRYE ELECTRIC, INC. 353
Frye cited several justifications during his examination by
counsel for the General Counsel. The first proferred reason
was the existence of complaints from several other employees
regarding Fosnight’s “bad attitude.” (Tr. 43.) Specifically,
Frye indicated that employees complained that Fosnight was
“on the phone most—80% of the time instead of working, just
bad work ethics.” (Tr. 43.) Frye added, “I think he had some
absenteeism problems. Some tardiness problems, I believe.”
(Tr. 48.) Counsel for the General Counsel pressed Frye to as-
certain if there were any other reasons for Fosnight’s termina-
tion. Frye’s answer simply reiterated concerns about attitude
and attendance. Only after being shown the termination report
did Frye make mention that Fosnight “did not want to do night
duty.” (Tr. 50.)
Naturally, Wells was also examined regarding the reasons
for Fosnight’s discharge. He cited Fosnight’s bad attitude,
refusal to take on-call duty, and tardiness. When asked to de-
scribe Fosnight’s attitude, Wells testified that it was, “[p]oor.
He had a lot of things going on personally. Staying on his cell
phone all day. Productivity. Workmanship . . . Quality of
work.” (Tr. 84.)
In assessing the employer’s asserted reasons for terminating
Fosnight, I have considered the termination report in conjunc-
tion with the testimony from Frye and Wells. At the outset, it is
noteworthy that the primary factor cited by all three sources
was Fosnight’s attitude and unsatisfactory rating in the area of
cooperation. While this is a consistent explanation for his ter-
mination, it is a highly troublesome one. In James Julian, Inc.
of Delaware, 325 NLRB 1109 (1998), it was noted that “[t]he
Board has repeatedly found, with court approval, that, in a la-
bor-relations context, company complaints about a ‘bad atti-
tude’ are often euphemisms for prounion sentiments.” [Cita-
tions omitted.] Very recently, the Board reiterated that “[i]t is
well settled that an employer’s reference to an employee’s ‘atti-
tude’ can be a disguised reference to the employee’s protected
concerted activity.” Rock Valley Trucking Co., 350 NLRB No.
10 at fn. 6 (2007). (Citation omitted.)
I recognize that a supervisor’s complaint that a worker pos-
sesses a bad attitude is not invariably a disguised reference to
union activity. Instead, when attitude is flagged as the key
justification for an adverse action, it is important to consider all
of the circumstances. In this case, I find that those circum-
stances support the inference that the attitude problems refer in
substantial part to protected activity. It will be recalled that the
Company chose to rehire Fosnight and promised him that he
would not be required to perform on-call duty. During his pe-
riod of reemployment, he had no record of disciplinary action
in his personnel file. This strongly suggests that his work ethic
was deemed satisfactory.17 The termination report’s evaluation
showed acceptable ratings in every area except the one related

17 Furthermore, even the termination report is careful to indicate that
Fosnight did not actually refuse to perform on-call duty, he simply
indicated that he “did not want to do night duty.” (GC Exh. 3, p. 1.)
Indeed, if the Company had believed that Fosnight had actually refused
to do that duty, it would surely have characterized his separation as
being due to insubordination. It will be recalled that the termination
report form listed this as one of the three possible types of separations.
to attitude. If Fosnight’s supposedly bad attitude did not mani-
fest itself in unacceptable attendance, initiative, or job quality,
it would appear more likely to be related to protected activity.
The suspicious nature of the reliance on Fosnight’s attitude was
underscored by Wells’ choice of language in elaborating on this
question. When asked why Fosnight was fired, he reported that
“[b]asically, his attitude was carrying over to the other guys . . .
Morale. Bringing morale down.” (Tr. 81.) This is a classic
formulation for raising grave concern regarding an unlawful
motivation for Fosnight’s discharge.18
The primary alleged reason for Fosnight’s discharge was
consistently asserted, but fatally linked to protected activity.
The secondary reasons were not consistently articulated and are
not credible. His supposedly excessive use of the cell phone
was not cited in the written description intended to explain his
discharge. Furthermore, the claim that he spent 80 percent of
his time talking on his phone is clearly inconsistent with his
evaluation showing good attendance and satisfactory quality of
work. Even more striking was the reliance by Wells and Frye
on claims that Fosnight exhibited poor attendance, including
frequent tardiness. Such a contention is completely belied by
Fosnight’s rating of “Good” in the area of attendance. Indeed,
his job evaluation shows that attendance was his strongest suit.
Similarly, any contention that poor workmanship was a factor
in his dismissal is fatally undermined by his earlier unsolicited
offer of reemployment and his “satisfactory” rating on this
aspect of his employment evaluation in the termination report.
Finally, I reject any claim that Fosnight was fired for refus-
ing to perform on-call duty. I credit the evidence demonstrat-
ing that he never refused this change in his conditions of em-
ployment. While his unhappiness about this newly-imposed
requirement prompted his protected activity, it did not lead him
to engage in any act of insubordination. His hasty termination
was effectuated long before his first scheduled on-call duty in
late March.
In sum, I conclude that the only consistent rationale offered
for Fosnight’s discharge was his bad attitude. Considering all
of the circumstances, I find that what was meant by this was
Fosnight’s involvement in protected concerted activities. The
other proferred justifications are makeweights that are fatally
undermined by the job evaluation report prepared by Wells on
the morning after the termination. Indeed, that evaluation and
the written comments that supplement it make it very clear that
Fosnight was discharged solely due to his poor attitude, a rea-
son that in this case was based on an unlawful motivation.
The situation is similar regarding Hensley. His job evalua-
tion showed an unsatisfactory rating in only one area, atten-
dance. In striking contrast, when Frye was asked why Hensley
was fired, he cited a multitude of reasons that did not include
attendance. The testimony went as follows:

18 Wells went on to refer to the impact on other employees of Fos-
night’s unwillingness to do on-call work. Given that the Company had
agreed to exempt him from this duty due to his scheduling problems, I
view this largely as a smokescreen. Any disaffection among other
employees caused by Fosnight’s exemption from on-call duty was the
result of a management decision, not an attitude problem on the part of
Fosnight.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD354
COUNSEL: Do you know or can you explain to me the
reasons for Mr. Hensley’s discharge?
FRYE: The only thing I heard is that, afterwards, and I
talked to some of our lead electricians afterwards, is the
reason Greg [Wells] let him go is because of some bad
work ethics.
COUNSEL: What do you mean bad work ethics?
FRYE: My employees in the field said that he was
lazy. I believe he refused to do a couple of jobs that they
asked him to do. The commercial side just said that they
couldn’t work with him.
COUNSEL: So let’s make sure the record is clear. Mr.
Hensley was discharged because of his work ethic, his
work performance?
FRYE: I believe that’s what Greg had told me after-
wards.
COUNSEL: And that entailed what? What was wrong
with his work performance?
FRYE: Just a lack of attitude on the jobsite and the
employees that worked with him said that he just didn’t
work, wouldn’t work.
COUNSEL: And, to the best of your knowledge, those
are the reasons he was discharged?
FRYE: I believe so. [Tr. 56.]
Wells was also asked why Hensley was fired. His response
was, “Attendance. Attitude. Insubordination.” (Tr. 90.)
Asked if there was anything else, he responded, “[t]hat’s all
that comes to my mind right now.” (Tr. 90.) When asked for
details about the issue of insubordination, Wells explained that
this referred to an incident that happened a couple of weeks
prior to his termination. It consisted of a refusal by Hensley to
comply with his lead electrician’s instruction to get into a crawl
space.19
I have examined all of the evidence regarding the Com-
pany’s supposed reasons for discharging Hensley. The termi-
nation report sets forth a straightforward solitary justification,
poor attendance. By contrast, the two management witnesses
offered a grab bag of additional reasons from vague complaints
about attitude and work performance to a grievous accusation
of insubordination. The Board has often discussed the signifi-
cance of this variance between the rationale written in a com-
pany’s personnel records and the accounts of its executives on
the witness stand. In McClendon Electrical Services, 340
NLRB 613, 614 (2003), an employee named Elgin’s discipli-
nary notice stated that he was discharged for failure to complete
a shift and insubordination. The Board went on to note that,
[a]t the hearing, [the owner] added several additional reasons
for discharging Elgin: (1) he was in a 90-day probationary
period; (2) his work was slow/lethargic and generally not
good; and (3) he had some absences and was late a couple of

19 Nothing in Hensley’s file corroborates this alleged incident. The
only possible reference is a notation in his attendance record form on
February 22 indicating that Hensley was “sent home because he was
complaining on who he was working [indecipherable word].” (R. Exh.
1, p. 6.) If this is indeed the incident Wells cited, the record indicates
that it was Hensley who was complaining, not his lead electrician.
times. These deficiencies, however, were not contained in the
disciplinary notice, which set forth the other grounds, dis-
cussed above. The Company’s vacillation and the multiplic-
ity of its alleged reasons for firing the employee render its
claims of non-discrimination the less convincing. Indeed,
such shifting assertions strengthen the inference that the true
reason was for protected activity. [Citations, quotation marks,
and some punctuation omitted for clarity.]
Similarly, in Desert Toyota, 346 NLRB 118, 120 (2005), a fired
employee’s termination form cited reduction in force and de-
cline in job performance and attitude. At trial, management
witnesses added additional reasons including failure to follow
the chain of command and lack of respect. The Board point-
edly observed that “[b]y adding these makeweight reasons dur-
ing the hearing, and thereby changing the source of the decision
to discharge [the employee], it appears that the Respondent was
simply making up its defense as it went along.” In my view,
that is precisely what happened in this case.
Particularly striking is the situation with regard to the claim
of Hensley’s insubordination. There can be little doubt that
insubordination is a grievous workplace offense that is often a
readily understandable basis for a discharge from employment.
Had Hensley actually engaged in such misbehavior, one would
reasonably expect that the Company’s personnel record would
contain details regarding the incident and any accompanying
disciplinary action. Hensley’s record is barren in this regard
with the possible exception of a vague and inconclusive refer-
ence to an incident on February 22. Of the greatest significance
is the fact that his termination report does not cite insubordina-
tion as the reason for his discharge. This is particularly note-
worthy because insubordination is one of only three printed
types of separations listed on the Company’s termination report
form. Beyond this, Hensley’s job rating in the area of coopera-
tion was fair. Obviously, an employee who was being dis-
charged for insubordination would be shown as having an un-
satisfactory level of cooperation. I am convinced that
Hensley’s supposed insubordination is a clear example of a
pretext being used to disguise an unlawful motivation.
In addition to a bogus claim of insubordination, the employer
raised a claim that Hensley had a poor attitude manifested
through laziness and poor quality job performance. Once
again, this is belied by his job evaluation ratings in the key
areas of quality of work, initiative, and cooperation. An em-
ployee who was being discharged for genuine laziness and
substandard work would not have been rated as having “fair”
performance in these areas of evaluation. This leaves atten-
dance as the remaining reason. While Hensley did have some
attendance problems, I conclude that they were not the reason
for his termination.20

20 The pretextual nature of the Company’s contention that it fired
Hensley for poor attendance is underscored by comparison of its char-
acterization of Hensley’s record with the documents that it submitted in
support of its defense. Counsel for the Company claims that Hensley
exhibited deficient attendance, “missing about 1 day per week of
work.” (R. Br. at p. 7.) Actually, the Company’s own record of
Hensley’s attendance shows that he missed 7 days during his 6-month
employment. (R. Exh. 1, pp. 2–3.) This continuing pattern of gross
FRYE ELECTRIC, INC. 355
Having found that the Company was unable to present a ra-
tional, clear, or consistent account of the grounds for the termi-
nations of Fosnight and Hensley, I will next examine whether
those terminations were in accord with the established discipli-
nary policies of the Company and its typical practices in this
area. This is important because the Board holds that, “the fact
that the Respondent’s behavior was inconsistent with its pro-
gressive discipline system and its past practice” is probative
evidence of discriminatory motivation. Tubular Corp. of Amer-
ica, 337 NLRB 99 (2001).
As in the case just cited, this employer maintains a written
progressive disciplinary system. That system is described in
the Company’s handbook. The most recent edition of the
handbook is dated January 1, 2007. Previous editions con-
tained the same provisions. The handbook classifies offenses
into two categories. Class one offenses are more serious trans-
gressions that may subject the employee to immediate termina-
tion. Class two offenses consist of other violations that may
result in the issuance of a written warning that “will be retained
in the employee’s personnel folder.” (GC Exh. 2, handbook, p.
17.) The accumulation of three such written reprimands may
result in termination.
It is instructive to compare the treatment of Fosnight and
Hensley with the terms of this disciplinary system. At the out-
set, it is particularly noteworthy that the relevant personnel files
for these two employees are barren of any prior written repri-
mands of the type described in detail in the handbook. As a
result, their termination pursuant to the policy would require a
finding that they committed a class one offense. Of the 13 such
offenses specified in the handbook, the only one that could
conceivably apply to either employee was excessive absentee-
ism.
Significantly, the handbook provides a clear roadmap for
management of the problem of absenteeism, including tardi-
ness. In a classic example of progressive discipline, it provides
for a verbal warning with written notice to the personnel file for
a first offense, written warning for a second offense, suspension
for the third offense, and possible termination “after manage-
ment review” for a fourth infraction. (GC Exh. 2, handbook, p.
9.) The same system of increasing penalties is applied in cases
of tardiness.
While the Company contends that a reason for the termina-
tions of Fosnight and Hensley was poor attendance, it is evident
that their terminations did not comport with the progressive
system described in the handbook. Under that system, before
termination would be considered, each employee would have
had to accumulate at least one verbal warning with written
notation, a written warning, and a prior suspension for violation
of the attendance policy. This simply did not occur.
All of the remaining criticisms of the two employees cited by
management as justifying their dismissal fall within the defini-
tion of class two offenses in the handbook. In particular, they

exaggeration underscores my conclusion that attendance is a mere
chimera designed to disguise the actual cause of the decision to fire this
employee. I will further discuss my reasoning for this conclusion dur-
ing my upcoming analysis of the Company’s overall disciplinary poli-
cies and practices.
would fall within the prohibition against, “[n]egligence, care-
lessness, or conduct that adversely affects quality or quantity of
you[r] work.” (GC Exh. 2, handbook, p. 17.) The handbook
specifies that the punishment in such cases is the issuance of a
written warning or reprimand that is retained in the personnel
file. In addition, “[a]ccumulation of three reprimands may
result in termination.” (GC Exh. 2, p. 17.) Furthermore, the
handbook underscores the importance of the documentary re-
cord in this regard by noting that, “[a]ll letters and reprimands
are kept as a permanent record in your personnel file.” (GC
Exh. 2, p. 17.) Once again, it is obvious that the discharges of
Fosnight and Hensley do not fall anywhere within the Com-
pany’s written disciplinary system. Since their personnel files
did not contain even a single written warning or reprimand,
their discharge for any class two offense or offenses violates
the handbook. This is potent evidence of a rush to judgment
arising from an unlawful motivation.
I recognize that employer rulebooks are not analogous to
codes of criminal conduct. Experience in this area of litigation
and common sense inform us that many small employers ignore
the rules in the day-to-day operation of their business enter-
prises. Both Frye and Wells testified that such was the case
with this firm. Indeed, Wells noted that the operation was so
busy that it was impossible to comply with the disciplinary
procedures in the handbook. As a result, the failure to follow
those procedures in this case would be explainable if the termi-
nations of Fosnight and Hensley were consistent with the Com-
pany’s actual practices even where those practices appeared to
violate the handbook.
Unfortunately, the evidence overwhelmingly establishes that
the discharges of the two employees were entirely inconsistent
with the Company’s past history of handling allegations of
employee misconduct. While the Company’s officials readily
reported that they did not follow the handbook, they were clear
in asserting that they departed from that handbook’s provisions
by being far more lenient toward the employees than was au-
thorized by the handbook. Wells summarized this point very
authoritatively as follows:
You know, to be just truthful, in our business, day-to-day op-
erations everybody is so busy a lot of times it’s just verbal
reprimand, me talking to you just like we’re talking now.
You know, get your crap together, and hope that they will.
(Tr. 76.) Indeed, at another point in his testimony, Wells made
a point of observing that “[w]hen it comes to us, we’re pretty
soft at heart.” (Tr. 100.)
Frye’s testimony was to the same effect. He observed that
95 percent of the Company’s discipline consisted of verbal
admonitions. I was so struck by these professions of tolerance
and leniency that I pressed Frye on this point by asking him
what the punishment would be for an employee who physically
assaulted him. While he indicated that the hypothetical attacker
would probably be terminated, he added, “[b]ut we tolerate a
lot, so—.” (Tr. 37.)
What makes this all the more interesting is the fact that man-
agement’s professions of generosity and lenience were clearly
applied to Fosnight and Hensley prior to their involvement in
protected activity. In particular, I note that during Fosnight’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD356
first period of employment, he was afforded such treatment to a
striking degree. It will be recalled that he was twice found to
have been smoking marijuana in a company vehicle on com-
pany time. This is an obvious class one offense under the terms
of the handbook.21 The handbook provides for the possibility
of “immediate termination” for even a first such offense. (GC
Exh. 2, handbook, p. 17.) Despite this, Fosnight was given a
warning for the first offense and a suspension for the second.
Similarly, whatever management’s views of Fosnight and
Hensley’s behavior, neither employee received so much as a
written warning prior to their concerted protected activities.
This general practice of leniency and the past history of ap-
plication of that practice to Fosnight and Hensley stands in
stark contrast to their subsequent abrupt dismissals. The Com-
pany has utterly failed to present any credible explanation for
the transformation of a policy of forbearance into an attitude of
uncompromising strictness even in circumstances where the
handbook counsels moderation through application of progres-
sive disciplinary steps. I conclude that the only intervening
factor that can logically account for the change was the union
activity.
In assessing the impact of the Company’s departure from
both its written policies and past practices, it is instructive to
compare the facts of this case with those in the Board’s recent
decision in Publix Super Markets, 347 NLRB 1433 (2006).
That employer discharged an employee for asserted reasons
that included violations of its punctuality rules. The employer
had followed the written requirements of its disciplinary system
by issuing the employee oral and written warnings about punc-
tuality prior to his discharge. Nevertheless, the Board found
unlawful motivation based in part on the fact that the em-
ployer’s application of the terms of the disciplinary rules actu-
ally “reflected an atypically, and discriminatorily, strict applica-
tion of that policy.” Id. at 1438. Here, the employer has taken
it a step beyond. The treatment of Fosnight and Hensley was
not only vastly excessive when compared to past practices, it
was also more draconian than the written disciplinary policy’s
provisions. I conclude that it was driven by unlawful intent.
For all of the foregoing reasons, I find that the Employer’s
explanations for the terminations of Fosnight and Hensley are
mere pretexts offered to conceal the true reason, the employees’
participation in protected union activity. When this is found to
be the case, the Board has long held that the Wright Line analy-
sis is properly terminated because it would be redundant to shift
the burden and again examine the employer’s justifications as a
defense to a finding of unlawful conduct. As the Board has
explained:
A finding of pretext defeats any attempt by the Respondent to
show that it would have discharged the discriminatees absent
their union activities. This is because where the evidence es-
tablishes that the reasons given for the Respondent’s actions
are pretextual—that is, either false or not in fact relied upon—
the Respondent fails by definition to show that it would have

21 The handbook lists a class one offense consisting of,
“[p]ossession, use, or being under the influence of alcohol or controlled
substances on Frye Electric property or on company time.” (GC Exh.
2, handbook, p. 17.)
taken the same action for those reasons, absent the protected
conduct, and thus there is no need to perform the second part
of the Wright Line analysis. [Internal quotation marks and ci-
tations omitted.] [Rood Trucking Co., 342 NLRB 895, 898
(2004).]
In addition to its impact on the sequential steps of the analy-
sis, the finding of pretext relates back to the assessment of the
employer’s motivation. This is the case because, “[i]t is well
settled that, where an employer’s stated motive is found to be
false, an inference may be drawn that the true motive is an
unlawful one that the employer seeks to conceal.”22 (Citations
omitted.) Key Food, 336 NLRB 111, 114 (2001).
Considering all of the evidence, I have made the following
conclusions in applying Wright Line. I find that Fosnight and
Hensley engaged in protected union activities and that their
employer was aware of their participation in those activities.
Immediately upon learning of this union activity, the Company
discharged the employees. Based on a variety of factors, in-
cluding the timing and abruptness of the adverse action, the
simultaneous action taken against both participants in the union
activity, and the shifting and pretextual nature of the purported
rationales for the terminations and their lack of consistency
with the Company’s policies and past practices, I conclude that
the discharges of Fosnight and Hensley were motivated by
unlawful animus toward union activities and sympathies. As a
result, the employer has violated Section 8(a)(1) and (3) of the
Act.
2. The interrogation of Fosnight
The remaining unfair labor practice charge concerns the in-
terrogation of Fosnight by Miers on February 27.23 It will be
recalled that, on that day, shortly after Wells told him that he
was discharged, Fosnight telephoned Miers. He asked Miers
about his termination and Miers responded by telling Fosnight
that “he had only learned about [it] minutes previous to it and
then asked me what was this about biding my time ‘till the
union called.”24 (Tr. 136.) The General Counsel contends that
Miers’ query to Fosnight about his involvement with the Union
constituted an unlawful interrogation in violation of Section
8(a)(1) of the Act.
Preliminarily, I note that Miers posed his question to Fos-
night shortly after Wells had discharged him from the Com-
pany’s employ. Counsel for the Company argues that

22 In the context of the application of a statute that prohibits other
forms of employment discrimination, the Supreme Court has endorsed
use of this analytical methodology. Reeves v. Sanderson Plumbing
Products, 530 U.S. 133, 147 (2000) (In an age discrimination case,
“[p]roof that the defendant’s explanation is unworthy of credence is
simply one form of circumstantial evidence that is probative of inten-
tional discrimination, and it may be quite persuasive.”)
23 The complaint alleges that Miers interrogated “employees” in the
plural. (GC Exh. 1(e), par. 5.) Both at trial and in his brief, counsel for
the General Counsel confirmed that there is actually only one interroga-
tion at issue, the exchange between Miers and Fosnight on February 27.
(Tr. 10; GC Br. at p. 21.)
24 Miers admitted that the phone conversation took place but denied
making any mention of the Union. For the reasons discussed earlier in
this decision, I credit Fosnight’s account.
FRYE ELECTRIC, INC. 357
“[b]ecause Fosnight was no longer an employee at the time of
the conversation . . . Miers’ interest in Fosnight’s activities
could not and did not interfere with Fosnight’s rights.” (R. Br.
at p. 4.) Since I have found that the Company’s discharge of
Fosnight was unlawful, it can hardly be raised as a defense to
the interrogation charge. In any event, even if the discharge
were found to be lawful, the Act’s protections have long been
held to extend to former employees. In Briggs Mfg. Co., 75
NLRB 569, 571 (1947), the Board noted that the statutory defi-
nition of “employee” was broad enough to cover “former em-
ployees of a particular employer.” See also Little Rock Crate &
Basket Co., 227 NLRB 1406 (1977), and Town & Country
Electric, 309 NLRB 1250, 1255 (1992), enf. 106 F.3d 816 (8th
Cir. 1997).25 As a result, whatever Fosnight’s precise status at
the moment of the conversation, he fell within the Act’s ambit
of protection as an employee.
It is evident that the Act does not prohibit all discussions be-
tween employers and workers regarding labor unions. Each
situation must be scrutinized by application of the Board’s ana-
lytical criteria as set forth in the leading case of Rossmore
House.26 This framework for analysis was usefully summa-
rized by the Board as follows:
The Board applies a totality of circumstances test to determine
whether the questioning of an employee would reasonably
tend to coerce that employee in the exercise of Section 7
rights, thus constituting unlawful interrogation . . . . [W]hen
analyzing alleged interrogations the Board will consider, inter
alia, factors that were first set out in Bourne v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964). Those factors are: (1) The back-
ground, i.e., is there a history of employer hostility and dis-
crimination? (2) The nature of the information sought, e.g.,
did the interrogator appear to be seeking information on
which to base taking action against individual employees? (3)
The identity of the questioner, i.e., how high was the interro-
gator in the company hierarchy? (4) The place and method of
interrogation, e.g., was the employee called from work to the
boss’s office? Was there an atmosphere of unnatural formal-
ity? (5) The truthfulness of the reply. These and other rele-
vant factors are not to be mechanically applied in each case.
They serve as a useful starting point for an assessment of the
totality of circumstances. [Some citations and internal quota-
tion marks omitted.] [Field Hotel Associates, LP, 348 NLRB
1, 4 (2006).]
As is often the case, some of the Bourne factors support one
side in this litigation, while others favor the opposing parties.
In particular, the place and method of interrogation support the
Company’s defense. The conversation was initiated by Fos-
night and took place over the telephone and was informal in

25 In an earlier phase of the Town & Country litigation, the Supreme
Court, in a unanimous decision, approved the Board’s use of a broad
definition of the term “employee” in finding that employees of a labor
union that seek to apply for work with another employer for purposes
of organizing that employer’s work force fall within the statutory defi-
nition. NLRB v. Town & Country Electric, 516 U.S. 85, 91 (1995).
26 269 NLRB 1176, 1177 (1984), enf. sub nom. HERE Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). The Board continues to apply
this test. See Sproule Construction Co., 350 NLRB 774 fn. 2 (2007).
nature. Indeed, Miers testified that Fosnight’s call reached him
while he was at a pub having a cocktail with a friend. In addi-
tion, the factor regarding the truthfulness of an employee’s
response to questioning does not favor the General Counsel’s
position. There is nothing to suggest that Fosnight felt any
need or desire to dissemble. Instead, he simply avoided making
any direct response to Miers’ query.
While these considerations support the lawfulness of the
conversation, the remaining factors strongly favor a finding of
unlawful coercion. In particular, the background context of the
conversation is compelling evidence of a violation. Fosnight
had just been discriminatorily discharged for union activity. He
was asking Miers for an explanation. Choosing this precise
moment to raise the union issue with Fosnight sent a potent and
toxic message linking Fosnight’s loss of employment directly
to his involvement with the Union. I conclude that the choice
of this context by Miers was an intentional and effective
method of intimidation.27
In addition to the background, the nature of the information
being sought supports a finding of illegality. By asking Fos-
night whether he was biding his time waiting for membership
in the Union, Fosnight was seeking specific information about
an employee’s protected activities. As the Board has explained,
this sort of “pointed attempt to ascertain the extent of the em-
ployee[’s] union activities” is unlawful. SAIA Motor Freight,
Inc., 334 NLRB 979, 980 (2001).
Finally, the identity of the questioner is a factor that supports
the General Counsel’s position. Miers was described as the
“[s]econd-in-command” of the Company. (Tr. 197.) He was
clearly an important corporate official whose views would be
seen as authoritative expressions of the employer’s opinions.
Taking into account the totality of the circumstances, I con-
clude that Miers violated the Act by asking Fosnight about the
extent and purpose of his union activities less than an hour after
the Company had effectuated its unlawful decision to terminate
Fosnight’s employment. By linking the response to Fosnight’s
inquiry about this decision directly to his union activities, Miers
engaged in the sort of coercion prohibited by Section 8(a)(1).
See Michigan Road Maintenance Co., 344 NLRB 617, 617–
618 (2005). (Inquiry about union activity that drew an “obvi-
ous connection” between the question and another contempora-
neous unfair labor practice constituted an unlawful interroga-
tion.)
CONCLUSIONS OF LAW
1. By discriminatorily discharging its employees, Thomas
Fosnight and Dennis Hensley, the Company has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.

27 In his brief, counsel for the Company asserts that Miers’ question
could not have intimidated Fosnight since it did not seek information
about his “attitudes, membership, or activities,” but only involved an
inquiry into “his poor work ethic, and whether it was the result of Fos-
night ‘biding his time’ and waiting for the union.” (R. Br. at p. 4.) In
my view, this only serves to underscore the unlawful nature of the
interrogation since it demonstrates that the employer’s dissatisfaction
with Fosnight was directly linked to his involvement with the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD358
2. By coercively interrogating Thomas Fosnight about his
protected union activities, the Company has also violated Sec-
tion 8(a)(1) of the Act.
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. I will also recommend that the
Company be required to post a notice in the usual manner.
With regard to affirmative relief, the Company having dis-
criminatorily discharged its employees, it should be ordered to
offer them reinstatement and make them whole for any loss of
earnings and other benefits, computed on a quarterly basis from
the date of termination to the date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
With regard to the manner of computing interest, at the
commencement of the trial of this case and in his brief, counsel
for the General Counsel sought a recommended order that
would constitute a departure from existing Board precedent.
(Tr. 9–10; GC Br. at pp. 9–21.) As counsel put it, “[t]he cur-
rent practice of awarding only simple interest on backpay and
other monetary awards should be replaced with the practice of
compounding interest.” (GC Br. at p. 9.)
While I agree that it is clearly appropriate for the General
Counsel to notify a respondent at the earliest opportunity that
he is seeking a new form of relief, I conclude that it would be
inappropriate for me to entertain this recommendation. Cer-
tainly, the assigned administrative law judge has the authority
to recommend a full range of remedial options. I have not hesi-
tated to recommend extraordinary measures when I have con-
cluded that they are required. For example, see Metropolitan
Regional Council of Carpenters (Adams-Bickel Assoc.), 2007
WL 1629737 (June 1, 2007) (broad cease-and-desist order), and
American Directional Boring, Inc., 2007 WL 2430006 (Aug.
23, 2007) (bargaining order). However, what distinguishes
those cases from the present request is that the forms of relief
that I recommended had previously been authorized by the
Board when prerequisite conditions existed that justified their
use. The issue in those cases was merely whether the necessary
conditions had arisen. In this case, the General Counsel seeks
relief that has never been authorized by the Board.
In Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984), the
Supreme Court noted that Section 10(c) of the Act vested in the
Board, “the primary responsibility and broad discretion to de-
vise remedies that effectuate the policies of the Act.” That
authority extends to questions regarding the remedial issue of
interest on any amounts owed by a wrongdoer. NLRB v. G & T
Terminal Packaging Co., 246 F.3d 103, 127 (2d Cir. 2001).
Consideration of a change in the manner of computing inter-
est as proposed by the General Counsel requires the analysis
and resolution of a variety of policy questions. For example, in
its leading case of New Horizons for the Retarded, supra, the
Board cited policy issues involved in determining the methods
of calculating interest including the need to “encourage timely
compliance with Board orders, discourage commission of un-
fair labor practices, and more fully compensate discriminatees
for their economic losses.” 283 NLRB at 1173. It also cited
the factor of ease of administration of the remedy. It is appar-
ent that these matters fall uniquely within the competence of
the Board as the entity that possesses the overall knowledge,
experience, and responsibility in this field.
In addition, I note that individual administrative law judges
may only act within the confines of the cases assigned to their
dockets. As a result, it would be inappropriate for me to issue
an order imposing a new form of remedy. For example, should
the parties in this case decide not to file exceptions to my deci-
sion, this employer would be responsible for providing a rem-
edy that is more costly than any other employer who has en-
gaged in the same forms of misconduct.28 Furthermore, I am
not in a position to address such nationwide concerns as the
applicability of any new measure to other pending cases in
varying stages of litigation. In this regard, the situation bears
some resemblance to the problem that arises when courts of
appeals reach different conclusions regarding the Board’s pol-
icy judgments. As the Board has reminded administrative law
judges in that context,
it remains the [judge’s] duty to apply established Board
precedent which the Supreme Court has not reversed. Only
by such recognition of the legal authority of Board precedent,
will a uniform and orderly administration of a national act,
such as the National Labor Relations Act, be achieved. [Cita-
tions omitted.]
Pathmark Stores, 342 NLRB 378 at fn. 1 (2004). I conclude
that the Board would apply the same reasoning to this situation.
Were I to take individual action, it would disrupt the uniform
and orderly administration of national labor law policy. See
also Southern Mail, Inc., 345 NLRB 644, 650 fn. 24 (2005)
(Board deletes judge’s remedial provision for payment of extra
taxes resulting from lump sum backpay award as “inconsistent
with current precedent.”). For these reasons, I decline to rec-
ommend any alteration to the Board’s current manner of award-
ing interest.29
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended30
ORDER
The Respondent, Frye Electric, Inc., Avon, Indiana, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against Thomas
Fosnight, Dennis Hensley, or any other of its employees for

28 By contrast, in the event that exceptions are not filed, my current
recommended remedy will conform to the remedies imposed in all
other cases.
29 Nothing in this discussion should be taken as suggesting anything
regarding my views as to the merits of the General Counsel’s request.
30 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
FRYE ELECTRIC, INC. 359
supporting, engaging in activities on behalf of, or seeking assis-
tance from, the International Brotherhood of Electrical Work-
ers, Local 481, AFL–CIO, or any other labor organization.
(b) Coercively interrogating Thomas Fosnight or any other
of its employees regarding their protected union activities.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Thomas Fosnight and Dennis Hensley full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Make Thomas Fosnight and Dennis Hensley 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 decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(d) 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.
(e) Within 14 days after service by the Region, post at its fa-
cility in Avon, Indiana, copies of the attached notice marked
“Appendix.”31 Copies of the notice, on forms provided by the
Regional Director for Region 25, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 27,
2007.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

31 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.”