Garfield Electric Co.

National Labor Relations Board - Board Decisions

Sep 25, 1998

326 N.L.R.B. 1103 (N.L.R.B. 1998)

GARFIELD ELECTRIC CO. 1103
Garfield Electric Company and Indecon, Inc. d/b/a
Garfield Group and International Brotherhood
of Electrical Workers, Local 212, AFL–CIO–
CLC. Cases 9–CA–35138–2 and 9–CA–35270–2
September 25, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On May 21, 1998, Administrative Law Judge John H.
West issued the attached decision. The Respondent filed
exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Garfield Electric Company
and Indecon, Inc., d/b/a Garfield Group, Cincinnati,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.

Linda Finch, Esq., for the General Counsel.
Dawn Boland, Esq. and Timothy Reilly, Esq. (Taft, Stettinius &
Hollister), of Cincinnati, Ohio, for the Respondent.
Mr. Matthew D. Koblinsky, Esq., of Cincinnati, Ohio, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST. Administrative Law Judge. International
Brotherhood of Electrical Workers, Local 212, AFL–CIO–CLC
(the Union) filed charges against Garfield Electric Company
and Indecon, Inc. d/b/a Garfield Group (Respondent) in Case
9–CA–35138–2 on July 21, 1997, and in Case 9–CA–35270–2
on September 4, 1997. On January 14, 1998, an order consoli-
dating cases, consolidated complaint and notice of hearing
(complaint) issued alleging that Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act), by order-
ing the removal of an employee from its specified jobsite be-
cause the employee distributed union literature,1 and Section
8(a)(3) and (1) by discharging its employee Steve Sanders and
issuing documentation behavior modification reports to its em-
ployees Ken Roesch and Bryant Hill because they distributed
union literature at a specified jobsite of Respondent and/or
encouraged employees to read the literature and consider union
representation and/or because they formed, joined, or assisted
the Union and engaged in concerted activities, and to discour-
age employees from engaging in these activities. Respondent
denies violating the Act as alleged. Also in its answer to the
complaint Respondent alleges that it took no adverse employ-
ment action concerning Roesch or Hill, Sanders was not dis-
charged from his employment, and Respondent did not exercise
any authority or make any decisions regarding Sanders’ em-
ployment status or his removal from the involved jobsite.

1 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 correct.
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.
1 It is alleged that Respondent acted through Tom McAfee, Bruce
Cameron and Lane Walker. Paragraph 5 of the complaint alleges that
all three of these individuals have been supervisors of Respondent
within the meaning of Sec. 2(11) of the Act and agents of Respondent
within the meaning of Sec. 2(13) of the Act. Respondent admits these
allegations, pointing out that Cameron was the General Superintendent
and Walker was a foreman.

A hearing was held on March 2, 1998, at Cincinnati, Ohio.
On the entire record in this proceeding including my observa-
tion of the demeanor of the witnesses and consideration of the
briefs filed by counsel for the General Counsel and the Re-
spondent on April 13, 1998, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, as alleged in the complaint, that Garfield
Electric Company and Indecon, Inc. have been corporations
with offices and places of business in Cincinnati and have been
engaged as electrical contractors in the construction industry
performing commercial, residential, and industrial construction;
that Garfield Electric and Indecon have been affiliated business
enterprises with common offices, ownership, directors, man-
agement, and supervision, have formulated and administered a
common labor policy, have shared common premises and
facilities, have provided services for and make sales to each
other, have interchanged personnel with each other, and have
held themselves out to the public as single-integrated enter-
prise; and that Garfield Electric Company and Indecon, Inc.
constitute a single-integrated business and a single employee
within the meaning of the Act. The complaint alleges, Respon-
dent admits, and I find that at all times material, Respondent
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, and the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Steven Sanders, an electrician, testified that he was initially
assigned to the P&G Olestra plant by Tradesmen International
(Tradesmen), which is a temporary service for skilled trades, in
April 1997; that on June 5, 1997, he was employed at the P&G
Olestra plant by the Garfield Indecon Group and his paychecks
were issued by Tradesmen; that he believed that Garfield Inde-
con “contracted” employees from the temporary service; that
while at the P&G Olestra site his immediate supervisor was
Len Walker, who is an electric foreman employed by the Gar-
field Indecon group; that he was not aware of Tradesmen hav-
ing any supervisory or management personnel at the P&G Oles-
tra site; that he was also supervised by Bruce Cameron, who
was Walker’s supervisor and who is the general foreman. On
cross-examination Sanders testified that he first became affili-
ated with Tradesmen in May 1995; that he was assigned to
different construction projects or other work assignments by
326 NLRB No. 90
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
Tradesmen and in those situations he worked for different elec-
trical contractors; and that prior to starting the P&G job
Tradesmen had referred him to 12 to 15 different jobs.
On June 6, 1997, Sanders distributed some union handbills,
General Counsel’s Exhibits 4(a), (b), and (c), and provided
information with respect to the wage package and total benefits
at the P&G Olestra site. More specifically, Sanders, at about
5:55 a.m., distributed union literature with fellow employee
Tony Melton and three individuals from the Union’s organizing
department, namely, Ken Mueller, Bob Lloyd, and Steve Jae-
ger. Initially Sanders and the others distributed the literature in
parking lot 1 by gate B outside the turnstiles which employees
have to go through to clock in and to enter into the working
area. Before distributing the union literature Sanders had a
conversation with Cameron in parking lot 1 outside the turn-
stiles during which Sanders gave him a letter on the union let-
terhead, General Counsel’s Exhibit 2, which indicates that
Sanders and another named individual, Moses McCown, were
voluntary members of the Tradesmen International/Indecon
organizing committee. When Cameron was informed what
Sanders, Melton and the three union organizers were doing he
said “okay” and went into work. Subsequently a security guard
asked them what they were doing and when they told him they
were passing out union literature he told them they could not do
that. The guard then went to the guardhouse, which was lo-
cated just outside the involved turnstile, and made a telephone
call. Subsequently the guard said the organizers who were not
employees at the site would have to get off the property. Muel-
ler, Jaeger, and Lloyd moved outside the parking lot gate so
that they were next to the street. Later the guard told Sanders
and Melton that they would have to stand off the property also
if they were going to hand out handbills. They complied and
continued to hand out the union literature. Sanders testified
that while he, Melton and the three organizers were out by the
street, two or three guards approached him and one of the
guards said to him “I’m supposed to secure you guys badges
and confiscate your union literature.”2 Sanders asked the guard
if they were fired. The guard did not reply. Instead the guard
took an item out of Sanders’ shirt pocket and on realizing that it
was not what he wanted he threw it at Sanders hitting Sanders
in the chest with it. It was 6:15 a.m. at the time and Sander’s
and Melton’s shift began at 6:30 a.m. Mueller indicated to
Sanders and Melton that they should clock in. The guard con-
tinued to ask for their I.D. badges and Sanders said “if I cannot
clock in I may be fired and if I keep talking to you I may be
late.” The guard them said “[w]ell I’m supposed to . . . look in
your lunch box3 and search you.” Sanders testified that he let
the guard look in his lunchbox and Melton let the guard look in
his lunchbox. Sanders and Melton then used their cards to
clock in and headed toward the jobsite. Sanders believed that
when the guards approached them outside the fence they were
on public property but later he testified that he was not sure.
He testified that after they clocked in the guard told them that
he wanted the union literature saying, “ [y]ou’re supposed to
turn over your badges and literature to me.” Melton turned
over his union literature to the guard and Sanders turned and

2 On cross-examination Sanders answered “[y]es” when asked “he
[the guard] told you that the Fru-Con Safety Department had
asked him to take your badges and your union literature . . . .”
3 This testimony is corroborated by Mueller who testified that while
he was out by the street he saw Sanders, who was by the turnstiles,
open his lunch box and the guard looked inside.
walked toward the jobsite with the union literature under his
arm with his jacket. Sanders testified that Melton did not turn
over his badge. Sanders left the union literature, his jacket and
his lunchbox on a picnic table in the break area. At about 9:30
a.m. when Sanders was on his break he was approached by
Cameron who wanted him to sign two “Behavior Modification
Report[s],” General Counsel’s Exhibit 5.4 Sanders told Cam-
eron that he, Sanders, did not know what “Behavior Modifica-
tion” meant and he did not sign. About 10:15 a.m. while he
was working Sanders was approached by Cameron, Walker, a
Pinkerton security officer and Sanders believed Steve Ward.
According to Sanders, Cameron told Sanders “you’ve been . . .
terminated and we want you to turn in your safety gear and any
tools you have of ours, and retrieve your belongings, swipe
your card to clock out and then the guard will confiscate the
I.D. Badge you use to clock in and out.” (Emphasis added.)
When Sanders picked up his jacket and lunchbox the union
handbills were gone. When Sanders asked Cameron if he had
something in writing with respect to the termination Cameron
at first said that he did not have anything and then he handed
Sanders a Pinkerton incident report, General Counsel’s Exhibit
6. The report indicates that the client is “FRU-CON (P&G
OLESTRA). It refers to Sanders and Melton as suspects #1 and
#2, respectively. For the nature of the incident, the box for
“OTHER” is checked off and “UNION ACTIVITIES” is written on
the blank line provided after this category on the form. Ser-
geant Joseph Curtin filled out the form. He wrote as follows on
the front of the form:

0600 RECEIVED A RADIO CALL FROM OFC. ARCHIBALD UNION
2 CONTRACTORS . . . AT THE TRUNSTILE PASSING OUT
LITERATURE TO EMPLOYEES CLOCKING IN.

0605 CALLED FRU-CONN SAFETY AND MANAGEMENT, MADE
OF POLICY AND RULES, THEN ASKED THEM TO TAKE THE
ACTIVITIES OUTSIDE THE GATE, THE SAFETY DIRECTOR
FOR INDECON ELECTRIC WAS PRESENT AND SAID THAT
THE EMPLOYEESWILL BE REMOVED FROM SITE AND I
SHOULD TAKE THEIR I.D. BADGES.

0607 I INFORMED THE TWO CONTRACTORS OF THE SITUATION
AND ASKED FOR THEIR BADGES. THE UNION REP TOLD
THEM TO CLOCK IN AND GO INTO WORK. BOTH
EMPLOYEES ATTEMPTED TO SMUGGLE IN LARGE
AMOUNTS OF LITERATURE CONCEALED IN JACKETS AND
LUNCHBOXES. REFUSING TO SUBMIT TO A SEARCH. MR.
SANDERS KEPT MAKING . . . REMARKS ABOUT BEING
LATE FOR WORK AND WOULD BE FINED.

On the back of the form Curtin, in filling out the line for “Was
Client Notified?”; checked the “Yes” box and wrote the follow-
ing under “Representative Name”: “MILLIS A. POWELL/JIM
WHITE.” Curtain went on to write as follows:

CALLED P&G PATROL FOR BACKUP, SGT BOHART ONE OF
OFFICERS ASSISTING. HE NOTICED THEY . . . ATTEMPTING TO
SMUGGLE IN LITERATURE. HE CONFISCATED LITERATURE
4 The comments section of one of the “BEHAVIOR
MODIFICATION REPORT[s]” contains the following: “Refused to
allow security to inspect items being brought on P&G property.” The
other reads as follows: “Violation of project work rules.” “Soliciting
w/in P&G property” is the “BEHAVIOR DEFICIENCY” specified on
the latter form.

GARFIELD ELECTRIC CO. 1105
FROM MR. MELTON. MR. SANDERS REFUSED TO HALT OR
SUBMIT A SEARCH OF CLOTHING HAND OR HIS LUNCHBOX. IT
WAS OBVIOUS HE HAD LITERATURE CONCLEALED IN THESE
ARTICLES. THEY WENT ON INTO THE PLANT. MR. SANDERS
SMARTING OFF ABOUT THE SITUATION.
THE UNION REPS DELIBERATELY ENCOURAGING THE
EMPLOYEES TO DISREGARD FRU-CONN AND P&G POLICIES
AND . . . TRYING VERY HARD TO ANTAGONIZE AND
CONTRADICT SECURITLY POLICIES AND PROCEDURES.
PATROL NOTIFIED CAPT. VOLL AND WILL BE MAKING
THEIR REPORTS. SUPERVISING MANAGER FOR INDECON CAME
UP TO GET THE NAMES OF EMPLOYEES IN INCIDENTS.

Sanders testified that Cameron and a Pinkerton officer accom-
panied him to the turnstile and when he swiped his I.D. badge
through it registered “Rejected” two times. Sanders gave the
badge to the guard. He testified that prior to June 6, 1997, he
had never had his lunchbox or toolbox or his person searched
before entering the P&G site. On cross-examination Sanders
testified that there were not signs posted at the P&G site notify-
ing employees that they were subject to being searched; that he
knew that when the employees left the site the guards had the
authority to look in the employee’s belongings if it was a con-
tainer or a box of any sort; and that it seemed like every day
when the employees came out they showed their boxes to the
guard. Subsequently Sanders testified that employees could
bring any magazine or newspaper on the P&G site; that he was
aware of raffles being held on the P&G site including one for a
motorcycle; that he was not sure whether the supervisors of
Garfield or Indecon conducted any of the pools or raffles them-
selves and he could not say for sure that the supervisors wit-
nessed these occurrences; that on April 24, 1997, during orien-
tation at the offices of Garfield Indecon for the P&G job he
received a copy of “FGN PROJECT WORK RULES” which includes
the following: “16. Solitation [sic] and distribution of literature
by employees authorized to enter the site and by all others is
prohibited at all times,” General Counsel’s Exhibit 7 and Re-
spondent’s Exhibit 1; and that on April 24, 1997, he signed an
agreement, Respondent’s Exhibit 2, which reads as follows:

I, Stephen D. Sanders, hereby agree that I understand
that I am an employee of Tradesmen/Name of subcontractor that I am
and that although I am not an employee of Garfield Elec-
tric Col that I must follow all rules and regulations of Gar-
field Electric including, but not limited to the following,
while working on Garfield Electric jobsites:
1 Garfield Electric Employee Information Handbook
for Hourly Personnel
2 Garfield Electric Safety Policy Manual
3 Garfield Electric Hazard Communication Program
4 Garfield Electric Prohibited Harassment and/or Dis-
crimination Policy
5 No Solicitation, No Distribution Rule
6 Production standards

In addition I hereby acknowledge that I have received copies
of the above policies, that I have read them, and that I under-
stand them. Further, I understand that as an employee of
Tradesmen/Name of subcontractor that I will receive all pay and benefits
from Trademen and that no pay or name of subcontractor
benefits whatsoever are the responsibility of Garfield Electric.
I agree to follow all instructions from Garfield Electric
designated supervisors. I understand that this agreement
shall remain in force as long as I am working on a Garfield
Electric jobsite and that it applies to all my theirs, succes-
sors and assigns.

Sanders also testified that during the above-described orienta-
tion he also received the following, Respondent’s Exhibit 3,
which is on the letterhead of Garfield Electric:
NO-SOLICITATION, NO-DISTRIBUTION RULE
No solicitation is allowed for any reason except as
stated in this policy. Solicitations by Garfield Electric
employees shall be permitted only during the employee’s
non-working time. Distribution of materials or literature
of any kind by Garfield Electric employees shall be per-
mitted only in non-work areas, during the employee’s non-
work time. Persons who may be on non-work time shall
not disturb those persons who are on work-time.
All non-employee solicitors are prohibited from solic-
iting employees of Garfield Electric on company premises
at all times, and during working time off company prem-
ises if employees are performing services or working off
of company premises.

On redirect, Sanders testified that the orientation was conducted
by Phil Bower, who is the personnel director at Garfield and
two women whose names he did not know.
On June 6, 1997, Sanders telephoned Joe Pettite at Trades-
men and told him what happened earlier that day at the P&G
site. Sanders testified that Pettite said that he would get Sanders
out somewhere next week and Sanders should call him the
following Monday morning; and that when he telephoned Pet-
tite the following Monday morning, June 9, 1997, he had to
leave a message since Pettite was not there and Pettite never
called him back.5
On June 10, 1997, Sanders began working for Luce Electric,
a signatory or union contractor. Sanders testified that he
learned of this opening from the union organizers; and that he
was not guaranteed that job but it was a possibility.
Also on June 10, 1997, union literature was again distributed
at the P&G site. Mueller testified that he and other members of
the organizing committee, namely, Matt Koblinsky, Jaeger, and
Steve Dunaway were present out by the street; that two em-
ployees were involved in the organizing activities that morning,
Hill and Roesch; that the employees were in the area of the
turnstiles and Hill was distributing union literature while Ro-
esch talked to people; that he observed a guard speaking to Hill
and then Hill and Roesch went through the turnstile; that Hill
took the union literature with him through the turnstile; and that
he did not recall a guard inspecting the lunchboxes of the two
employees.
Roesch testified that in June 1997 he was employed with
Tradesmen as an electrician; that Tradesmen contracted him out
to the Garfield Group from April to June 1997 and he worked
at the involved P&G site; that Tradesmen did not have any
supervisors at the site and he reported to Greg See, who is a
Garfield foreman, and he was supervised by Mike Merrit, who
he believed was the Garfield general foreman; that on June 10,
1997, he and Hill went to the front of the turnstiles at the P&G
site and while Hill passed out union literature he talked to the
people about looking at the Union; that Mueller was outside the
gates; that he and Hill wore union shirts that day; that a guard
told them that they would have to move outside the gate; that

5 Sanders testified that he left two or three other telephone messages
for Pettite.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
since it was so close to their starting time, they packed up their
stuff and went in to work; that Hill put the union literature in
his toolbag; that it was the policy at the P&G site to inspect
only on the way out any box or anything you carried; that the
guard did not check his lunchbox or toolbox on the way in to
work that day; that he did not see any guard check Hill’s lunch-
box or toolbox that morning; that a few minutes after clocking
in that morning he gave See his letter of intent to become a
volunteer organizer for the Union, General Counsel’s Exhibit 8;
that See said that he would give the letter to Merrit; that at
about 1 p.m. Merrit approached him on the job and asked him
to sign a disciplinary form which indicated “VIOLATION OF FRU-
CON & P&G SOLICITATION RULES, PASSING OUT LITERATURE
RULES, PASSING OUT LITERATURE ON COMPANY PROPERTY”; that
he refused to sign the form because he had not been handing
out literature; and that he signed the form when Merrit wrote
“[e]mployee stated that he was not handing out lit[erature] but
he has been informed ab[out] the policy” at the top of the form,
General Counsel’s Exhibit 9. Roesch testified that if his badge
had been taken away, he would not have been able to go to
work the next morning because he needed the badge to get
through the turnstile; and the there was a motorcycle raffle
conducted by the pipefitters at the P&G site and it was going on
in front of supervisors on the project. On cross-examination
Roesch testified that he was not removed from the jobsite on
June 10, 1997; that the motorcycle raffle was conducted by the
pipefitters and a pool was conducted by either the pipefitters or
welders; that neither the pipefitters not the welders work for
Garfield Electric; that he did not know whether any Garfield
supervisors saw welders or pipefitters doing these things; and
that he never saw an employee searched on the way in and he
never saw any kind of written policy regarding inspecting only
on the way out.
Hill testified that on June 1, 1997, he was employed by
Tradesmen and was leased as a journeyman electrician to Inde-
con Garfield on the P&G Olestra site; that he began his em-
ployment with Tradesmen on December 1, 1996; that Trades-
men did not have any supervisors at the P&G site; that he re-
ported to see, who works for either Indecon of Garfield, at the
Olestra site; that he is also supervised by Merrit who is the
general foreman for Indecon or Garfield; that he and Roesch
visited the union hall on two occasions and on the second he
was told about Sanders “got terminated at the Proctor and
Gamble site; that he did not believe that Sanders was treated
fairly since a few days before he saw the pipefitters passing out
raffle tickets; that on June 10, 1997, he passed out union litera-
ture at the involved P&G site at about 6:30 a.m.; that Roesch,
Koblinsky and Mueller were with him; that he passed out the
union literature in the parking lot right before the turnstiles; that
Roesch spoke to people asking them to at least look at the lit-
erature; that he wore a union T-shirt that day; that a guard told
him and Roesch that they could not pass out literature on Proc-
tor and Gamble property; that at that point he put the union
literature in his lunchbox and went through the turnstiles and
proceeded to the cafeteria where he spread the union literature
on the table; that later that morning Merrit and a “safety guy”
from either Indecon or Garfield approached him and Merrit
gave him a verbal documentation for “VIOLATION OF FRU-CON &
P&G SOLICITATION RULES, PASSING OUT LITERATURE ON
COMPANY PROPERTY”; that he signed the document, General
Counsel’s Exhibit 10; that the guard’s practice with respect to
personnel searches or inspection of lunchboxes and toolbags
was that they just check them when we leave the premises
through the turnstiles; and that he never had his toolbag or
lunchbox searched or inspected when entering the involved
P&G site. On cross-examination Hill testified that he was not
removed from the jobsite on June 10, 1997, and he continued to
work at the site until he left to take another job.
Garfield Hartman, the president of Garfield, was called as a
witness by the Charging Party. As here pertinent, he testified
that the people who supervised the Tradesmen employees at the
P&G Olestra site were Randy Ward, Merrit, and Cameron, all
of whom are general superintendents.
The Charging Party also called Ward, who testified, as here
pertinent, that at the time of the hearing he was a general fore-
man employed by Indecon; and that while at P&G’s Olestra site
he did not see pools going on but he did hear about a pipefit-
ters’ pool.
Respondent called one witness, Jeffrey Grove, who was a
Pinkerton security manager at the P&G Olestra project during
the month of June 1997. Grove testified that Pinkerton was
employed at the Olestra site by Fru-Con Construction, which
was the general contractor; that he reported to Gary Armstrong
at Proctor & Gamble and Ken Campbell, who was the Fru-Con
facilities manager; that if an employee did not have a badge, the
employee could get on the worksite if the employee could be
verified either by looking at a log or calling the supervisor to
get it okayed; that there was a policy regarding the inspection
of employees or their belongings on the Olestra project,
namely, everybody assigned to the P&G Olestra site was sub-
ject to being searched on entering, on leaving or anytime while
on the property; that most typically the searches occurred on
departing the facility; that he was involved in removing Sanders
from the site on June 6, 1997; that Fru-Con Construction di-
rected his removal; that between 10 and 10:30 a.m. he dis-
cussed the removal of Sanders from the site with Cameron,
telling Cameron that the decision had been made that Sanders
was to be removed from the site; that he was with Walker and
Cameron when Cameron told Sanders that he was being re-
leased from the property; and that Melton was not removed
from the project on June 6, 1997, because he had not violated
any security policies of Fru-Con or Proctor & Gamble in that
Melton submitted himself to inspection and generally was co-
operative with the security officers on the site. On cross-
examination Grove testified that Cameron did not ask why
Sanders was being removed; that the reason for searching an
employee when they enter the facility is to look for anything
which is listed as contraband; that union literature is not con-
sidered contraband; that he did not know why the guards in-
structed Sanders to turn over his union literature; that while
there is a prohibition against soliciting on P&G property, just
having possession of union literature is not an exact form of
solicitation; that “basically the only part of the conversation I
heard was Bruce [Cameron] had told Steve [Sanders] that he
was being removed from the facility, and that we had to look in
his tools, to make sure it was okay, basically we’re looking for
any Fru-Con property before he leaves the site, which he didn’t
have” (emphasis added);6 that Sanders violated policy in that he
entered the facility after the guards had requested he not do so,
and he refused to be inspected; that he came on the site at 8
a.m. on June 6, 1997, and the involved incident occurred at 6

6 Subsequently Grove testified “[t]erminate, to us, means removal
off the project.”
GARFIELD ELECTRIC CO. 1107
a.m. that morning; that the Indecon safety director is Thomas
McAfee; that the search policy is posted outside B-gate and all
employees sign it prior to indoctrination; that the guards took
Melton’s badge and it was given back to him later; that he re-
ceived the order to remove Sanders from Fru-Con management,
namely, Stacey Chester, who is the Fru-Con safety manager for
the site, and Oscar Tanck, who is Fru-Con’s electrical disci-
pline manager for the site; that he did not believe that McAfee
had the authority to remove someone from the project; and that
even though Curtin’s report indicates “The Safety Director for
Indecon Electric was present and said that the employees will
be removed from site, and I should take their badges” that is not
exactly what happened and the report is incorrect because both
employees were not removed from the site. Subsequently
Grove testified that if the guards tried to take Sanders’ badge
while he was out by the street then they were denying him ac-
cess before there was a question of his refusing to allow a
search. On redirect Grove testified that Indecon Garfield had
the authority to remove their own people from the project at
any time; and that once you get outside of gate B you are in the
street so he believed that would be the city’s property. On re-
cross Grove testified that he believed that the approximately 4
foot wide grassy area between the street and the fence is P&G
property.
Analysis
Despite the lack of such allegation in the complaint, counsel
for the General Counsel urges, with respect to one of the rules
given to Sanders during his orientation at Garfield for the P&G
job, namely, “[s]ol[ic]itation and distribution of literature by
employees authorized to enter the site and by all others is pro-
hibited at all times”—that it be found that Respondent violated
Section 8(a)(1) of the Act by promulgating, dissemination, and
maintaining a no-solicitation/no-distribution rule that prohibits
solicitation and distribution of literature by employees at all
times. Counsel for General Counsel correctly points out that
the issue was presented and fully litigated. This matter is rea-
sonably related to the complaint’s other allegations and in my
opinion it is proper to make findings as to this issue. Since
employees are presumptively privileged to solicit union support
in nonworking areas on company property during their break-
times, the rule quoted above in this paragraph is unlawful. Our
Way, Inc., 268 NLRB 394 (1983). Counsel for the General
Counsel correctly points out that there is no evidence that Re-
spondent ever expressly repudiated the overly broad, dissemi-
nated, unlawful rule and at least three employees were unlaw-
fully disciplined for violating the unlawful rule.7 Also, there is
merit in her argument that the simultaneous promulgation and
maintenance of a presumptively valid no-solicitation/no-
distribution rule by Respondent in no way disavows or modifies
the invalid rule which it promulgated and maintained in that the
National Labor Relations Board in MGM Grand-Reno, Inc.,
249 NLRB 961 (1980), found that the simultaneous mainte-
nance of a valid no-solicitation rule and invalid no-solicitation
rule created an ambiguous situation wherein employees could

7 When Sanders was standing out by the street, which was before he
went through the turnstile, the guard attempted to deny Sanders access
to the site when the guard asked for Sanders’ badge which he needed to
enter the site. Management had already decided to deny Sanders access
and so there would not be a question of contacting a supervisor to find
out if Sanders could be admitted without a badge.

not clearly know which rule was in effect, and the rules could
be read together to give the impression that all solicitation and
distribution was prohibited at all times on company property.
Respondent violated Section 8(a)(1) of the Act by promulgat-
ing, disseminating, and maintaining the no-solicitation/no-
distribution rule set forth above in this paragraph.
Paragraph 7 of the complaint alleges that about June 6, 1997,
Respondent, by Tom McAfee, Bruce Cameron, and Lane
Walker, unlawfully ordered the removal of an employee from
its Olestra jobsite because the employee distributed union lit-
erature. As found in the next preceding paragraph the no-
solicitation/no-distribution rule quoted therein is unlawful. As
noted above, the Pinkerton incident report, General Counsel’s
Exhibit 6, indicates that at 6:05 a.m. “THE SAFETY DIRECTOR FOR
INDECON ELECTRIC WAS PRESENT AND SAID THE EMPLOYEES WILL
BE REMOVED FROM SITE AND I SHOULD TAKE THEIR I.D. BADGES” 8
McAfee, the safety director for Indecon, did not testify herein
to deny that what is indicated in the Pinkerton incidence report
is in any way inaccurate in this regard. Consequently, before
Sanders went through the turnstile, before there was any ques-
tion of a search, Respondent had the guards demand, while
Sanders was out by the street, Sanders’ badge so that he could
not gain access to the worksite. As the incident report indi-
cates, Sanders was being removed from the site. As a matter of
law, there was nothing wrong with what Sanders did up to that
time. He was not on the clock at the time and the area he was
distributing the union literature in was not a work area. Yet
Respondent ordered his removal.9 Grove was not on site until
8 The report was received pursuant to Rule 801(d)(2)(B) of the Fed-
eral Rules of Evidence. Sanders asked Cameron if he had something in
writing with respect to the termination. Cameron handed Sanders the
Pinkerton Incidence Report after initially indicating that he did not have
anything. By his action, Cameron was manifesting an adoption of the
report. On brief, Respondent argues that neither General Counsel nor
the Union laid any foundation on which to base any exception to the
hearsay rules within which the document properly could be admitted.
Since the document is not hearsay, there is no need to categorize it in
terms of an exception to the hearsay rule. For this reason the case cited
by Respondent, Siwik v. Marshall Field & Co., 154 LRRM 2510, 2511
fn. 2 (N.D. Ill. 1996), is not applicable. Additionally, that case does not
involve a supervisor, in answer to an employee’s request to get some-
thing in writing about his termination, giving the employee a report of
the incident generated by the security firm which was involved. Rather,
the cited case involves a handwritten report by the plaintiff himself to
the defendant’s Loss Prevention Department. The court, in ruling on
defendant’s motion for summary judgement therein in an action under
the Age Discrimination in Employment Act, inter alla, questioned the
sufficiency of the handwritten report with respect to getting plaintiff’s
version of certain events credited for purposes of the ruling on the
motion.
9 While Cameron and Walker did play a role in the actual removal,
the record does not show that they participated in what occurred at 6:05
a.m. Respondent, on brief, argues that the fact that Cameron said
“okay” about Sander’s distribution of union literature that morning
shows that Respondent did not interfere with any action based on that
protected activity. Cameron did not testify herein. So he did not answer
any questions about what he may have done subsequently. Actions
speak louder then words. Depending on the circumstances, “okay” can
have different meanings. It may signify approval or endorsement. But
how could Cameron approve or endorse conduct which was contrary to
a rule which Respondent, as indicated above, promulgated, dissemi-
nated and maintained for work at the involved site? If Cameron testi-
fied herein that he spoke to McAfee at 6:05 a.m. and explained to
McAfee that there was no need to remove Sanders from the site be-
cause he, Cameron, had given his approval of the distribution—
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
almost 2 hours later so his testimony about what occurred be-
fore he even came on site must be weighed accordingly. Re-
spondent violated the Act as alleged in this paragraph of the
complaint.
Paragraph 8(a) of the complaint alleges that about June 6,
1997, Respondent unlawfully discharged its employee Steve
Sanders. Sanders engaged in union activity. Respondent knew
that Sanders engaged in union activity. As noted above, the
Pinkerton Incidence Report refers to “union activity.” And as
found above, Respondent ordered his removal from site,10
which as Grove testified is the equivalent of termination,11
based solely on his distribution of union literature before his
worktime began and in a nonwork area. Sanders was dis-
charged within hours of his union activity. Respondent’s union
animus is demonstrated by its promulgation, dissemination,
maintaining, and enforcing of an patently unlawful no-
solicitation/no-distribution rule, and the discriminatory treat-
ment of its employees because they were on the organizing
committee and engaged in union activity. While Respondent
cites its treatment of Melton as a part of its business justifica-
tion argument regarding its treatment of Sanders, its treatment
of Melton raises at least one question. Since no charge was
filed alleging that Melton received a behavior modification
report and since Respondent did not indicate that Melton re-
ceived such a report, it appears that Melton did not receive a
behavior modification report. That being the case, one must
ask why did Melton receive this favorable treatment? Respon-
dent argues that Melton complied with the guards request so he
was not removed from the site. And Sanders did not comply
fully with the guard’s request so he was removed from the site.
But Hill and Roesch received behavior modification reports for
just distributing and soliciting before their worktime and in a
nonwork area notwithstanding the fact that they complied with
the guards request. Why didn’t Melton receive a behavior
modification report? In creating a situation where it could
point to the differing treatment of Melton and Sanders as a part
of its business justification argument, if Respondent did not
give Melton a behavior modification report, it appears that
Respondent discriminated in favor of Melton vis-a-vis those on
the organizing committee who engaged in union activity.12
There was no business justification for Respondent’s treatment

notwithstanding the fact that it violated an unlawful rule which Re-
spondent promulgated, disseminated and maintained for this site—then
one would weigh the merits of such an argument. But Cameron did not
testify herein. His “okay” could have meant nothing more than his
saying “okay” but thinking “we will see about that” and then taking
actions which resulted in Sanders being removed from site.
10 Again, Grove was not on site until almost 2 hours after the in-
volved incident. What he was told may have been what he was meant to
repeat. He was Respondent’s only witness herein. His testimony, to the
extent that it may be interpreted to conflict with the testimony of the
other witnesses about what occurred about 6 a.m. or with the Pinkerton
Incident Report, is not credited.
11 With respect to what Cameron actually told Sanders when he was
removed from the site, Sanders’ testimony that Cameron said he, Sand-
ers, was terminated is credited. Cameron did not testify herein so he did
not deny that he said this. Grove testified that he overheard only part of
the conversation. Grove did not testify that he overheard Sanders ask-
ing for something in writing about the termination and he did not testify
that he heard Cameron’s response.
12 Unlike Sanders, Hill and Roesch, Melton was not listed in either
of the letters given to the Respondent which gave the names of the
employees on the organizing committee. G. C. Exhs. 2 and 8.
of Sanders. Under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), counsel for the General Counsel has shown
that union activity was a motivating factor in Respondent’s
action in that it has been shown that Sanders engaged in union
activity, Respondent knew it, the timing involved, and anti-
union animus on the part of Respondent. Once such unlawful
motivation is shown, the burden of persuasion shifts to the Re-
spondent to prove that the alleged discriminatory conduct
would have taken place even in the absence of protected activ-
ity. The test applies whether the case involves pretextual rea-
sons or dual motivation. Frank Black Mechanical Services,
271 NLRB 1302 fn. 2 (1984). Respondent has not shown that
the action it took against Sanders would have taken place even
in the absence of protected activity. Respondent violated the
Act as alleged in this paragraph of the complaint.
Paragraph 8(b) of the complaint alleges that on June 10,
1997, Respondent unlawfully issued behavior modification
reports to its employees Roesch and Hill. As pointed out by
counsel for the General Counsel in Crestfield Convalescent
Home, 287 NLRB 328 (1987), it is stated “[t]he Board has con-
sistently found that an overly broad rule governing solicitation
is invalid for all purposes, and that consequently any discipline
pursuant to such a rule is unlawful.” (Footnote omitted.) It is
disingenuous for Respondent to argue on brief that it is not
responsible after Respondent promulgated, disseminated, main-
tained, and enforced the unlawful no-solicitation/no-
distribution rule earlier with respect to Sanders. Merrit, who is
one of Respondent’s general superintendents, had both Hill and
Roesch sign the behavior modification reports. Merrit himself
made an entry on the behavior modification report to get
Roesch to sign it. Merrit did not go to some Fru-Con supervi-
sor and have him or her add to what was written on the behav-
ior modification report. Merrit did not testify here. In fact,
Respondent did not call one witness to testify with respect to
this paragraph of the complaint. Respondent violated the Act as
alleged in this paragraph of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
promulgating, disseminating, and maintaining an unlawful no-
solicitation/no-distribution rule and by ordering the removal of
employee from a jobsite because the employee distributed un-
ion literature in violation of the rule.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by:
(a) Discharging Steve Sanders on June 6, 1997.
(b) Issuing documentation behavior modification reports to
Ken Roesch and Bryant Hill on June 10, 1997.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.

GARFIELD ELECTRIC CO. 1109
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative action
set forth below to effectuate the policies of the Act.
The Respondent having discriminatorily discharged Steven
Sanders, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits computed on a quar-
terly basis from the date of discharge to the date of proper offer
of reinstatement less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On the foregoing findings of fact and conclusions of law, and
on the entire record, I issue the following recommended13

ORDER

The Respondent, Garfield Electric Company and Indecon,
Inc. d/b/a Garfield Group, Cincinnati, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, disseminating, and maintaining an unlaw-
ful no-solicitation/no-distribution rule and ordering the removal
of an employee from a jobsite because the employee distributed
union literature in violation of the rule.
(b) Discharging Steve Sanders on June 6, 1997.
(c) Issuing documentation behavior modification reports to
Ken Roesch and Bryant Hill on June 10, 1997.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Steve
Sanders full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Steve Sand-
ers, including the behavior modification reports issued to Steve
Sanders on June 6, 1997, and remove the behavior modification
reports issued to Ken Roesch and Bryant Hill on June 10, 1997,
and within 3 days thereafter notify Steve Sanders, Ken Roesch,
and Bryant Hill in writing that this has been done and, with
respect to Steve Sanders, that the discharge will not be used
against him in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its fa-
cility in Cincinnati, Ohio copies of the attached notice marked

13 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Section 102. 48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
“Appendix.”14 Copies of the notice, on forms provided by the
Regional Director for Region 9, 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 June 6,
1997.
(e) 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT promulgate, disseminate, and maintain an
unlawful no-solicitation/no-distribution rule and order the re-
moval you from a jobsite because you distribute union literature
in violation of the rule.
WE WILL NOT discharging you if you engage in activities on
behalf of International Brotherhood of Electrical Workers, Lo-
cal 212, AFL–CIO–CLC.
WE WILL NOT issue documentation behavior modification re-
ports to you because you solicit or distribute union literature
during nonworktime in nonwork areas.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order,
offer Steve Sanders full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Steve Sanders whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings. plus interest.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of Steve Sanders, including the behavior modification reports
issued to Steve Sanders on June 6, 1997, and remove the be-
havior modification reports issued to Ken Roesch and Bryant
Hill on June 10, 1997, and WE WILL within 3 days thereafter
notify Steve Sanders, Ken Roesch, and Bryant Hill in writing
14 If this Order is enforced by a Judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgement of the United States court of appeals enforcing an Order of
the National Labor Relations Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
that this has been done and, with respect to Steve Sanders, that
the discharge will not be used against him in any way.
GARFIELD ELECTRIC COMPANY AND INDECON,
INC. D/B/A GARFIELD GROUP