Harbor Crest Electrical

National Labor Relations Board - Board Decisions

May 15, 1992

307 N.L.R.B. 581 (N.L.R.B. 1992)

581
307 NLRB No. 99
HARBOR CREST ELECTRICAL
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The Respondent contends that the Order should be modified in
light of its representation that it has ceased doing business. Any such
contentions are properly dealt with in the compliance stage of this
proceeding.
1 All dates refer to the 1990 calendar year unless otherwise indi-
cated.
Harbor Crest Electrical, Inc. and International
Brotherhood of Electrical Workers, Local
Union No. 441, AFL–CIO. Cases 21–CA–27510,
21–CA–27648, and 21–RC–18696
May 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 27, 1992, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed an answering 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Harbor Crest Electrical,
Inc., Tustin, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Yvette H. Holliday-Curtis, Esq., for the General Counsel.
Richard A. Harvey, Esq., of Tustin, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Inter-
national Brotherhood of Electrical Workers, Local Union No.
441, AFL–CIO (Union or IBEW Local 441), filed unfair
labor practice charges (captioned as CA cases) against Har-
bor Crest Electrical, Inc. (Respondent) on May 10 and Au-
gust 2, 1990.1 Both charges were amended on August 13.
On September 28, the Regional Director for Region 21 of
the National Labor Relations Board (NLRB or the Board)
issued a consolidated complaint (complaint) alleging Re-
spondent had engaged in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act). The complaint contains a no-
tice of hearing before an administrative law judge.
On October 12, the NLRB Regional Director for 21 issued
a report on objections and order directing hearing and order
consolidating cases and notice of hearing in Case 21–RC–
18696. The report concerns the Union’s objections to an
election conducted in that case on August 2 and finds that
the issues raised by the Union’s objections are ‘‘the same as,
or closely related to, the issues involved in [the unfair labor
practice cases].’’
Respondent answered the complaint on October 8 denying
that it engaged in the unfair labor practices alleged.
I heard this matter on January 29 and 30, 1991, at Los An-
geles, California. After carefully considering the record, the
demeanor of the witnesses, and the posthearing briefs filed
by the General Counsel and Respondent, I find Respondent
engaged in certain unfair labor practices alleged based on the
following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTIONS
A. The Pleadings
1. The complaint allegations
The complaint alleges Respondent discharged employees
Scott Westerlund and Glen DeSoto on May 7 and June 22,
respectively, because of their union or other protected con-
certed activities in violation of Section 8(a)(1) and (3). The
complaint also alleges that Respondent independently vio-
lated Section 8(a)(1) by: (1) polling its employees concerning
their union preferences; (2) creating the impression that em-
ployee union activity was under surveillance; (3) threatening
reprisals against employee union activity; and (4) interro-
gating employees about their union activities. The complaint
further alleges that Respondent violated Section 8(a)(1) and
(5) of the Act by refusing to recognize and bargain with the
Union on or after May 7. As of that date, the complaint as-
serts, a majority of employees in an appropriate unit had exe-
cuted authorizations designating the Union as their bar-
gaining representative and, as Respondent’s unfair labor
practices are so substantial and serious as to preclude a fair
election, employee sentiment regarding representation as ex-
pressed by the authorization cards would, on balance, be best
protected by issuance of a bargaining order.
At the conclusion of the General Counsel’s case-in-chief,
Respondent moved for dismissal of the complaint for want
of proof. Following argument, that motion was granted as to
the surveillance and polling allegations only.
The surveillance allegation is predicated on the same evi-
dence offered in support of the coercive interrogation allega-
tions. That evidence, viewed in a light most favorable to the
General Counsel, reflects classic employer interrogation to
obtain information concerning employee union activity and
sentiment. For this reason, the surveillance allegation was
deemed redundant as any remedial order related to the inter-
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Having now concluded that a broad cease-and-desist order is ap-
propriate in this case, I further find that any separate order pertaining
to surveilance is unnecessary.
3 The General Counsel’s brief argues that no prejudice would have
occurred by allowing the General Counsel to reopen its case-in-chief
to provide an opportunity to introduce the letter in view of Respond-
ent’s motion to dismiss. I strongly disagree. The motion to dismiss
at the announced conclusion of the case by a party bearing the bur-
den of proof for the allegations underlying the action is common
practice and is designed to winnow out those matters demanding a
response from those which do not. If the General Counsel’s argu-
ment that no prejudice would occur by allowing the introduction of
proof which should have been forthcoming in the first place is
adopted, Respondent’s due process right to make such a motion in
a timely manner is rendered practically useless.
4 Based on evidence showing that Loomer hired certain elec-
tricians, I find that he was a supervisor within the meaning of Sec.
2(11) of the Act. I also find Haugen was a statutory supervisor. He
was the only individual who regularly supervised the electricians in
the field. He assigned employees to various projects, told employees
what work to do, checked the work when completed, ordered
changes in completed work, kept time records, resolved grievances,
rogation allegations would be designed to deter the type of
conduct at issue.2
No showing was made during the General Counsel’s direct
case which could be construed as evidence of unlawful poll-
ing other than evidence that two employees were interrogated
and some muddled testimony about an employee meeting at
the Respondent’s office in July. During argument, the Gen-
eral Counsel expressed an intention to further support this al-
legation during Respondent’s case or on rebuttal with a letter
from attorney Harvey purportedly containing an admission of
Respondent’s polling conduct. However, I concluded that the
polling allegation stood unsupported in the face of Respond-
ent’s pending motion to dismiss and, hence, I granted Re-
spondent’s motion as to the polling allegation also.
Thereafter, the General Counsel was permitted to make an
offer of proof concerning the polling allegation and the Har-
vey letter was received as a rejected exhibit. The General
Counsel’s brief argues that a finding of unlawful polling is
warranted. To the extent that the General Counsel seeks re-
consideration of the polling issue, it is denied.3
For the foregoing reasons, the surveillance and polling al-
legations are not treated further in this decision.
2. The election objections
The Regional Director’s report on objections reflects that
a secret ballot election was conducted on August 2 pursuant
to a Stipulated Election Agreement approved on July 13 in
the following bargaining unit:
All electricians employed by the Employer at its facility
located at 14831 Myford Road, Suite A, Tustin, Cali-
fornia; excluding all other employees, professional em-
ployees, office clerical employees, guards and super-
visors as defined in the Act.
The tally of ballots served immediately following the elec-
tion reflects that, of the eight eligible voters, six ballots were
cast against the Union, no ballots were cast for the Union,
and two ballots were challenged. The Union filed timely ob-
jections.
Union Objections 1 and 2 allege that Respondent interro-
gated and threatened employees, and discharged two employ-
ees.
The Regional Director’s report on objections finds that be-
cause Union Objections 1 and 2 are the same as, or closely
related to, the allegations in the unfair labor practice com-
plaint, those issues ‘‘can best be resolved after a hearing in
conjunction with the allegations of [the unfair labor practice
complaint].’’
B. The Evidence
1. Jurisdiction
Respondent, a California corporation, is engaged in elec-
trical contracting from its office and place of business in
Tustin, California. It commenced operations on approxi-
mately March 1.
Respondent denied the jurisdictional allegations of the
complaint. Those allegations track the jurisdiction stipulation
contained in the Stipulated Election Agreement of Case 21–
RC–18696 executed on July 12 by attorney Harvey in his ca-
pacity as Respondent’s vice president. Essentially, that stipu-
lation provides that between the date Respondent commenced
operations and July 12, it
purchased and received goods, supplies or materials
valued in excess of $25,000, which were shipped di-
rectly to [its] facility, from suppliers located in the
State of California [who], in turn, received such
goods[,] supplies or materials directly from points lo-
cated outside the State of California. If projected
through the [Respondent’s] first 12 months of oper-
ations, the purchased and received goods, supplies or
materials described above will be valued in excess of
$50,000.
Notwithstanding Respondent’s denial of the complaint’s
jurisdictional allegations, I refused to permit the litigation of
that matter in this consolidated proceeding. See, e.g., Acad-
emy of Art College, 241 NLRB 454, 455 (1979). Based on
the representation case stipulation, I find that Respondent is
an employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(6) and (7) of
the Act. I further find that it would effectuate the purposes
of the Act for the Board to exercise its jurisdiction to resolve
this labor dispute.
2. Background
Rod Chamberlain is Respondent’s president. Chamberlain
either owned or was affiliated in a management position with
two other companies—C & R Electric and C & R Construc-
tion—engaged in electrical contracting over the past decade.
C & R Electric was a union contractor; C & R Construction
was nonunion. Both of those companies are no longer doing
business.
Ken Loomer worked primarily in Respondent’s office as
a salaried estimator and materials procurer. As noted below,
Loomer interviewed and hired some of Respondent’s elec-
tricians. Respondent’s electricians were directly supervised
by Field Foreman Robert Haugen, an individual employed
off and on over the years in a similar capacity with both C
& R Electric and C & R Construction.4
583HARBOR CREST ELECTRICAL
and made effective recommendations concerning a full range of per-
sonnel actions. Haugen’s recommendation, for example, that Mike
Ferraro be promoted foreman when he left appears to have been fol-
lowed with little or no independent investigation by higher manage-
ment.
5 Obviously, Nelson planned to obtain more detailed information
through Westerlund following his employment. For this reason, Nel-
son instructed Westerlund to disguise his union membership during
the application process. However, no evidence shows that
Westerlund was ever a paid union staff member or official.
Haugen, previously a member of IBEW Local 11 in Los
Angeles County, described his relationship with Chamberlain
over the years as one of friendship. During his employment
with C & R Construction, Haugen apparently let his union
membership lapse. Eventually that company ceased providing
medical insurance and, in time, the lack of medical insurance
became a personal problem for Haugen. For this reason, he
urged Chamberlain to become a union signatory contractor
again. Chamberlain rejected that suggestion. According to
Haugen, Chamberlain explained that such action would cause
him to go broke and be out of business in 6 months.
Thereafter—and within a very short period after he began
receiving pay on Respondent’s checks—Haugen advised
Chamberlain of his intent to leave Respondent’s employ in
30 days to renew his IBEW Local 11 membership and secure
work through its hiring hall. Faced with this development,
Chamberlain instructed Loomer to advertise for electricians
in a local newspaper and hire a potential replacement for
Haugen.
3. The organizing effort
Steve Nelson, an electrician by trade, is a longtime mem-
ber of IBEW Local 441 in Orange County. For certain peri-
ods between April 1988 and September 1990, Nelson was
employed on the staff of Local 441 as an organizer. The
most recent period of such employment was from March to
September 1990.
In late March or early April, Nelson read Respondent’s
newspaper advertisement for electricians. Because he was un-
familiar with the telephone number listed in the ad, he called
the number to obtain information about the company. Among
other things, Nelson learned that Respondent regularly per-
formed ‘‘prevailing wage’’ work, a fact which suggested or-
ganizing potential to Nelson.
Subsequently, Nelson encouraged Steve Westerlund, also a
longtime IBEW Local 441 member to apply for employment
with Respondent. Westerlund did so and was hired by
Loomer following a personal interview. Loomer told
Westerlund that Respondent was seeking an electrician with
the potential to replace Foreman Haugen. At or about the
same time, Loomer also hired Mike Ferraro as an electrician
and told him the same thing.
Once employed, Westerlund communicated frequently, if
not daily, with Nelson about unionizing Respondent.5
In late April, Nelson conducted a meeting for Respond-
ent’s employees at the union hall after their workday ended.
Westerlund, Ferraro, and Glen DeSoto, another of Respond-
ent’s electricians, attended. Haugen too may have attended.
During this meeting Nelson explained perceived advantages
of union membership, explained the organizing process, and
otherwise sought to determine employee interest in unioniza-
tion. Although Nelson distributed union authorization cards
at this time, he asked the employees to mail the completed
cards back to him after considering the matter. Following the
meeting, Nelson maintained contact with the employees by
telephone.
On the morning of May 7, Nelson visited DeSoto and an-
other electrician, Alan Lambert, at their jobsite in Costa
Mesa. Nelson explained that he wanted to move forward
with organizing Respondent’s employees and asked that they
each sign an authorization card. DeSoto did so but Lambert
declined. Nelson told the two employees that he intended to
file an NLRB election petition and then speak with Chamber-
lain about changes in working conditions.
Later that same morning, Nelson visited Ferraro and
Westerlund at their jobsite on the Bella Vista School project
in Montebello. Nelson told those two employees of his
plans—essentially as described earlier to DeSoto and Lam-
bert. Both Ferraro and Westerlund signed cards. Nelson also
located Haugen in an adjacent building, explained what he
was doing, and asked for Haugen’s support. Haugen too
signed an authorization card.
Nelson then went to the NLRB Region 21 office in Los
Angeles where he filed an election petition. After leaving the
NLRB office, Nelson returned to the union office in Santa
Ana briefly and then went to Respondent’s office in Tustin
accompanied by an new union organizer, Mike Achabie. Nel-
son estimated that he arrived at Respondent’s office between
3 and 4 p.m.
Chamberlain greeted the union agents in the reception area
at Respondent’s office. There, Nelson advised Chamberlain
that a majority of Respondent’s employees had signed union
authorization cards and that he had filed an NLRB election
petition. Nelson added that ‘‘it was time for [Chamberlain]
to come back and become a signatory contractor again.’’
Chamberlain responded to this news by asking who
‘‘turned me into the Union.’’ When Nelson declined to say,
Chamberlain asked if it was DeSoto, an employee who had
been—as Chamberlain was aware—an apprentice at IBEW
Local 441 in the early 1980’s. Nelson assured him that it
was not DeSoto and added that he was ‘‘not going to get
into a process of elimination.’’ Nevertheless, Chamberlain
continued to press Nelson for an identity and Nelson finally
said, ‘‘Certainly you understand Scott Westerlund was one of
our members.’’ Chamberlain appeared surprised to Nelson
but did not say anything.
Nelson’s exchange with Chamberlain ended after agree-
ment was reached to meet and discuss the matter further at
9 a.m. on May 9.
On May 7, Respondent’s nonsupervisory employees were
Chamberlain’s sons, Jeff and Tim, DeSoto, Ferraro, Lambert,
and Westerlund. The latter four employees were all full-time
journeymen electricians.
Jeff Chamberlain was a high school student at the time.
On the average he worked 10 to 12 hours per week during
the school year and longer periods during the summer vaca-
tion months when employed by C & R Construction. There
is no evidence that Jeff Chamberlain worked as an elec-
trician. His rate of pay was less than half that of the journey-
men.
Tim Chamberlain was a part-time college student. During
the school year he worked between 30 and 40 hours per
week. He was allowed to take time off to attend college
classes as scheduled. Rod Chamberlain asserted that his son
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 This jobsite was at the residence of an individual named Moe
Quirk. Chamberlain said that while working on that job, DeSoto and
Lambert were actually employed by Quirk rather than Respondent
which was merely providing materials for the job. Contrary to Re-
spondent’s argument, I find that temporary employment is of no sig-
nificance to the issues here.
7 Dingwell worked for Respondent as an electrician from April 4
to 18.
8 Apparently, Chamberlain was delayed at this job that morning
and missed his scheduled meeting with Nelson. Nelson said that he
waited for a period of time at Respondent’s office. After Chamber-
lain failed to appear, Nelson left various telephone numbers with
Loomer and a message for Chamberlain to call. Chamberlain failed
to do so. Hence, the two never met as planned on May 9 or anytime
thereafter until the date of the hearing in the NLRB election case.
Tim performed electrical work and characterized his status as
one of an on-the-job trainee. His hourly pay rate was ap-
proximately two-thirds to three-fourth the hourly rate earned
by the journeymen electricians.
According to Foreman Haugen, Tim Haugen spent at least
50 percent of his time working in Respondent’s office but
would, on occasion, work in the field as a helper or per-
forming minor electrical work. However, the latter work was
limited, Haugen said, because of Tim’s inexperience and lack
of training. Haugen estimated that Tim Chamberlain worked
on a field project perhaps 1 or 2 days every 2 weeks.
4. The alleged interference, restraint, and coercion
With the exception of DeSoto’s discharge, the remaining
matters alleged in the complaint occurred following the May
7 conversation between Chamberlain and Nelson and in the
next few days. Although there is some agreement about a
few events, for the most part the witnesses provided diver-
gent accounts.
DeSoto claims that Chamberlain came to the jobsite in
Costa Mesa between 4 and 5 p.m. on May 7 where he was
working with Lambert.6 Chamberlain asked DeSoto and
Lambert who ‘‘turned me into the Union.’’ Chamberlain
pressed the matter when neither responded. DeSoto asserted
that Chamberlain said that he’d ‘‘like to find out because
Scott Westerlund is from the Union.’’ Chamberlain also told
DeSoto and Lambert that ‘‘[i]t looks like I’m going to have
to fire everyone and start all over.’’ In the course of the the
discussion, DeSoto said Jim Dingwell’s name came up and
by the end of the discussion DeSoto felt that Chamberlain
believed Dingwell had alerted the Union.7
A couple of days later (which would have been May 9),
DeSoto said that Chamberlain came to Respondent’s Laguna
Beach job where he was again working with Lambert. On
this occasion Chamberlain approached the two men and
asked if they had signed union authorization cards. Accord-
ing to DeSoto, the question appeared to be directed more to
Lambert who denied having done so; DeSoto said he did not
respond. By DeSoto’s account, Chamberlain also mentioned
that he was scheduled to meet with Nelson that day.
Lambert recalled that Chamberlain had asked DeSoto and
himself ‘‘if we informed the Union about something.’’ Lam-
bert said that this occurred at the Costa Mesa job and, al-
though he was not certain, he believed the inquiry was made
a few days before Nelson approached them at that job about
signing authorization cards. Lambert could not recall any fur-
ther discussion about the Union on this occasion.
Lambert also said that Chamberlain asked him whether he
had signed a union authorization card on another occasion.
Lambert was not certain when this occurred but, he said, it
might have been at a meeting in Respondent’s office.
Lambert denied that Chamberlain ever discussed the Union
while DeSoto and he were working on the Laguna Beach
job. Lambert also denied hearing Chamberlain state, either at
the Costa Mesa job or during a meeting at Respondent’s of-
fice, that he was going to fire everyone and start over.
Chamberlain admitted that he asked DeSoto and Lambert
who had turned him into the Union on the morning of May
8 at the Costa Mesa job. Although phrased as a question,
Chamberlain said that it was really a remark made in jest to
the two men. Both men, Chamberlain said, laughed and said
that they had not done so. Chamberlain claims there was no
further conversation at that time about the Union. He specifi-
cally denied saying, then or at any other time, that Respond-
ent would have to start over if they joined a union. He also
denied that he otherwise threatened DeSoto.
Chamberlain was at the Laguna Beach job in the morning
of May 9.8 He said that he went there for the purpose of
meeting with an inspector and the job superintendent. He
claims that he did not see DeSoto or meet with any of Re-
spondent’s employees while there. Chamberlain denied that
he interrogated any employee on May 9 at Laguna Beach
about signing a union card, about their union membership, or
about how they would vote in an election if held.
5. Scott Westerlund’s termination
In the meantime, on May 8 Chamberlain telephoned Fore-
man Haugen at the Bella Vista school job around noontime
to advise that he was coming to the job that afternoon.
Chamberlain asked Haugen to keep the employees there until
he arrived. Based on his prior dealings with Chamberlain,
Haugen anticipated that a layoff was coming.
When Chamberlain arrived he gave Haugen an envelope
and told him that it was Westerlund’s layoff check. Haugen
then went to Westerlund’s work location and spoke to him
for a few minutes. When Haugen handed Westerlund the
check, he said he told him, ‘‘I think you were expecting
this.’’ According to Haugen, Westerlund said, ‘‘We both
know why I got this,’’ or words to that effect. Haugen said
he just shrugged his shoulders.
Westerlund’s version varies somewhat. He said that
Haugen remarked, ‘‘We both know what this is for,’’ when
handing over the pay envelope. Westerlund then asked
Haugen why he was being laid off. Haugen purportedly stat-
ed that ‘‘[t]he official reason was reduction in force’’ but re-
peated that they both knew what it was for.
That same day, but following Westerlund’s termination,
Chamberlain remarked to Haugen that ‘‘somebody in our
ranks [is] promoting unionism.’’ Haugen told Chamberlain
that he was not doing it and he did not know who was.
The following day Respondent hired electrician Robert
Bellavance who worked for Respondent until December 11.
Both Chamberlain and Loomer denied that Westerlund
was laid off because of his union activity. Chamberlain also
denied that he knew Westerlund had signed a union author-
ization card before the layoff but did not specifically deny
Nelson’s claim that Chamberlain had been told (by Nelson)
that Westerlund was ‘‘one of our members.’’
585HARBOR CREST ELECTRICAL
9 Haugen’s final day in Respondent’s employ was May 9, the day
following Westerlund’s termination.
10 Throughout Tr. vol. II, Westerlund’s name is incorrectly spelled
Westerman. The transcript is corrected to reflect the proper spelling.
Other minor errors also appear throughout but the meaning is obvi-
ous.
11 Haugen said, however, that he warned Westerlund to quit talk-
ing so much to other jobsite employees or find another place to work
during Westerlund’s first week on the job. Westerlund apparently
corrected this practice. Haugen said that he may have mentioned that
fact to Loomer at the time.
As noted, Haugen recommended Ferraro’s elevation to the
foreman position he was about to vacate.9 Chamberlain ex-
plained that when the decision was made to select Ferraro as
foreman, Respondent did not need an additional employee
‘‘and Mr. [Westerlund] was then let go.’’10 Chamberlain also
claimed that Haugen had reported that Westerlund’s work as
an electrician was not ‘‘up to standard.’’
Chamberlain said that he promoted Ferraro to the foreman
position even though Haugen told him that Ferraro had
signed a union authorization card. This knowledge was ac-
quired, Chamberlain claimed, on Haugen’s last day of em-
ployment. Haugen emphatically denied that he told Chamber-
lain the name of any employee who signed an authorization
card.
Both Chamberlain and Loomer claimed that Dick Giles,
the general contractor’s job superintendent on the Orange
County Water District job, had telephoned to complain about
some conduit installation work performed by Westerlund on
that job. Chamberlain said that Giles did not want
Westerlund back on the job but there is no evidence that
Westerlund was ever actually removed from any job because
of complaints by agents of a general contractor.
Haugen, who directly supervised Westerlund throughout
his employment with Respondent, felt that, of the two, Fer-
raro would project a better image for Respondent in the field,
especially when dealing with representatives of general con-
tractors as regularly required. Westerlund, Haugen explained,
was overweight, and suffered from a disturbing and uncon-
trollable ptyalism condition which he had discussed with
Westerlund. Chamberlain, who had never seen Westerlund
until immediately following his layoff, apparently alluded to
this latter condition when he described Westerlund as ‘‘not
a very clean person.’’
However, Haugen claimed that those conditions which
made Westerlund unsuitable as a foreman did not detract
from his work as a journeyman electrician. Haugen said that
Westerlund was slow but that he was a competent journey-
man whose work could be trusted and that he had never
complained to Chamberlain or Loomer about Westerlund’s
work.11
Haugen recalled one occasion on the Water District job
when Westerlund installed some conduit which had to be re-
moved and reinstalled. However, Haugen explained that he
had laid out that work for Westerlund who then followed his
instructions precisely. Although installed correctly and as di-
rected, Haugen said the work did not look good and that nei-
ther he nor Giles liked it so Haugen removed it and re-
installed the conduit in a manner which would be more
pleasing aesthetically.
Haugen claimed that this matter involved less than an
hour’s work and otherwise diminished its overall importance.
Thus, although Haugen said that he could have mentioned
the matter to Loomer in passing, it was not of such signifi-
cance that he would have reported it to Loomer or Chamber-
lain as an example of poor workmanship.
Loomer, on the other hand, claimed that Giles (who was
not called as a witness) was very upset because Westerlund
had drilled holes in a metal building which, potentially, could
later leak. Loomer said that ‘‘theoretically’’ the general con-
tractor could have back charged Respondent for repairs occa-
sioned by the work and that he visited the job to inspect the
damage.
6. The failure to recall Glen DeSoto
DeSoto worked off and on for Chamberlain affiliated oper-
ations since 1987. Most recently, he was called to work at
Harvey Construction and then in April he began receiving
checks from Respondent while employed on the same
projects. He worked on a regular basis until June 21.
On June 21, DeSoto completed an assignment in Palm
Desert and telephoned Loomer for another assignment.
Loomer told him to report to the Bella Vista School job the
following morning.
En route to that job on the morning of June 22, DeSoto’s
truck broke down. After arranging to have the vehicle towed,
DeSoto telephoned Loomer again to report his predicament.
Loomer apologized for not contacting DeSoto earlier to
alert him that the Bella Vista work was minor and had been
completed by Ferraro. Loomer also advised that as work was
slow, he did not anticipate a further assignment for DeSoto
until after the July 4 holiday. Based on this information,
DeSoto told Loomer he planned to visit his father out of
State.
Additionally, Loomer asked that DeSoto return a company
ladder to the Orange County Water District job. When
DeSoto complied, he found Bellavance working on that
project, a circumstance which disturbed DeSoto because of
his seniority relative to Bellavance.
On Monday, June 25, DeSoto said that he telephoned
Loomer to advise that he would not be going to visit with
his father and asked if work was still slow. Loomer con-
firmed that was the case and again added that further work
was unlikely until after July 4.
At some point, DeSoto registered on the Union’s out-of-
work list. On Wednesday, June 27, he was referred to work
with another electrical contractor by the Union. However, be-
cause he earned more money working for Respondent than
he did for his new employer, DeSoto continued his interest
in work opportunities with Respondent. This same day, Eric
Bessem commenced work for Respondent as an electrician
and continued his employment until December 11.
On June 28 or 29, DeSoto again telephoned Loomer to ex-
plore potential work with Respondent. Loomer continued to
assure DeSoto that no work would be available until after the
July 4 holiday.
On July 5, Loomer telephoned DeSoto to let him know
that his check was ready. DeSoto went to the Respondent’s
office to collect his pay and spoke to Loomer for about an
hour. Loomer told DeSoto that there was not ‘‘a lot of work
going on right now.’’ DeSoto told Loomer during this
lengthy conversation that he had a job ‘‘for right now.’’ Al-
though Loomer never specifically told DeSoto on this occa-
sion that he would be called back to work by Respondent,
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 A prehearing NLRB affidavit used only for impeachment pur-
poses is hearsay under the Fed.R.Evid. 801(d)(1)(A). NLRB v.
McClure Associates, 556 F.2d 725 (4th Cir. 1977).
13 DeSoto’s testimony at that time reads:
Q. Were you ever threatened with being fired if you joined
the Union?
A. Yes.
Q. Oh, when?
A. On the original date that he [Chamberlain] came in, when
we signed our authorization cards, Moe Quirk job.
DeSoto assumed that he would when the work picked up. In
fact, DeSoto was never recalled to work with Respondent.
By his account, Loomer was responsible for the failure to
recall DeSoto. Loomer did not think that he discussed
DeSoto’s recall with Chamberlain and specifically denied
that he discussed that matter with attorney Harvey. He also
denied that union considerations had anything to do with the
failure to recall DeSoto.
Instead, Loomer said that DeSoto had complained about
not getting enough work hours to earn wages sufficient to
pay his bills toward the end of his employment. When
DeSoto finished his last assignment, Loomer claimed that no
further work was available. At that time, Loomer told
DeSoto that one big job (Laguna Beach) was coming up and
it would ‘‘not only mean the crew we had but would prob-
ably have to have one or two extra guys when it started roll-
ing.’’
When Loomer told DeSoto that there would be no work
‘‘in the next couple, three or four days,’’ DeSoto said that
he was going to ‘‘take a little vacation and go visit his dad
or do something.’’ DeSoto, Loomer said, promised to call
back when he returned to town.
According to Loomer, ‘‘[t]he following week when
[DeSoto] got back in town he called me and asked if I had
any work for him.’’ Loomer said that he did not. Loomer
also told DeSoto that the ‘‘new job’’ was supposed to start
up ‘‘within a couple of weeks.’’ Up to this point, Loomer
said, he still intended to recall DeSoto.
Loomer said that DeSoto called again a day or two later
to ask if the ‘‘new’’ job had begun. After Loomer reported
that it had not, DeSoto told Loomer that he had a job offer
from Sasco Electric which he intended to accept.
Loomer ‘‘didn’t think’’ he recalled DeSoto when work
picked up. The ‘‘biggest reason,’’ Loomer said, was his be-
lief that if DeSoto was working for Sasco—one of the coun-
try’s largest electrical contractors—he (Loomer) did not think
that he could offer anything to entice DeSoto back.
C. Further Findings and Conclusions
1. Witness credibility
In reaching my conclusions detailed below, I have given
considerable weight to the testimony of former foreman
Haugen and Glen DeSoto. Where the testimony of Chamber-
lain, Loomer, Lambert, and Ferraro is conflicting, the ac-
counts by Haugen and DeSoto are credited. Lambert and Fer-
raro impressed me as being unusually evasive while testi-
fying about critical issues and, as seen below, the expla-
nations of Chamberlain and Loomer for the two employee
terminations involved here simply fail to respond to the
issue.
By contrast, Haugen impressed me as an individual at-
tempting to be forthright and candid albeit he was obviously
pained by his presence at the hearing. Moreover, I found the
degree of his recollection to be reasonable under the cir-
cumstances.
The balance in Haugen’s testimony also suggests that he
had no conscious bias for the central players in this dispute.
Thus, on the one hand he readily admitted that he very well
may have told Loomer about the unsightly conduit incident
and Westerlund’s early penchant to bother other employees
with an undue amount of nonwork conversation. On the
other hand, he steadfastly denied that he ever told Chamber-
lain that Ferraro signed a union authorization card.
Notwithstanding his departure from Respondent’s employ
to return to a union work environment, I am convinced that
Haugen’s testimony is not colored by an extreme union ide-
ology. He appears to have forthrightly apprised Chamberlain
of his reasons for leaving and nothing in his testimony sug-
gests a transparent embellishment to aid one side or the
other. To conclude that Haugen’s motive for testifying was
to assist the Union’s case requires one to assume that he was
either remarkably subtle for a layman or poorly prepared to
aid a cause. I find such a conclusion unsupportable.
DeSoto’s testimony is more problematic on the surface.
Undoubtedly, his testimony can be viewed as inconsistent
with respect to two critical statements purportedly made by
Chamberlain at Costa Mesa on May 7—or May 8 by Cham-
berlain’s account. The question presented is whether his in-
consistency resulted from mere forgetfulness or whether it
signals a lack of reliability on his part as Respondent argues.
The testimony giving rise to the problem discussed here is
DeSoto’s assertions that Chamberlain alluded to closing the
shop and starting all over again in the context of other re-
marks about the Union, and Chamberlain’s reference to
Westerlund’s union membership. The former directly sup-
ports a complaint allegation; the latter tends to corroborate
Nelson’s claim that he told Chamberlain about Westerlund’s
membership during their May 7 conversation.
Before any reference to the two statements arose during
his direct examination, DeSoto responded in the negative to
counsel’s question, ‘‘Did he [Chamberlain] say anything else
about the Union?’’ Counsel then sought to refresh DeSoto’s
recollection with his prehearing affidavit. That was not per-
mitted because DeSoto’s clear negative answer gave no indi-
cation of a failed recollection.
Counsel was permitted, however, to establish that DeSoto
had made a prior statement inconsistent with his negative an-
swer to the quoted question. Thus, when asked if he had pre-
viously stated (in his prehearing affidavit) that Chamberlain
had made the shop closing statement and mentioned
Westerlund’s union membership in the same conversation,
DeSoto promptly and unequivocally admitted that he had
made such a prior statement. Counsel then sought to intro-
duce the prehearing affidavit which was rejected as unneces-
sary because DeSoto had admitted making the prior incon-
sistent statement. The matter was then dropped. In this pos-
ture, no substantive evidence of such statements by Cham-
berlain existed.12
However, on direct examination by the Union, DeSoto was
questioned and testified specifically about the shop-closing
statement. During cross-examination, DeSoto again testified
about that particular statement to the apparent surprise of Re-
spondent’s counsel.13
587HARBOR CREST ELECTRICAL
Q. Okay. And you’ve already testified to that conversation?
A. Yes.
From the circumstances summarized above and my obser-
vation of DeSoto while testifying, I have concluded that he
momentarily failed to recollect these added statements by
Chamberlain and that the described inconsistency does not
impugn his testimony generally.
Moreover, as DeSoto acknowledged that he had made a
prior statement (the prehearing affidavit) asserting that
Chamberlain had made both the shopclosing statement and
the Westerlund union membership remark during the same
conversation, and subsequently provided substantive testi-
mony with respect to the shopclosing statement, I have treat-
ed the Westerlund union membership remark as substantive
evidence for the purpose of the findings made below.
Both Lambert and Ferraro impressed me as highly evasive
witnesses on crucial matters in this case. Lambert’s effort at
the hearing to suggest that an attempt was made to put words
in his mouth in the course of taking his prehearing affidavit
was particularly disingenuous. Other evidence reflects that
Lambert can, if he chooses, stand by his convictions. He did,
after all, refuse to sign a union authorization card despite
what he perceived as pressure to do so.
Respondent further argues that Westerlund’s testimony—
even though ‘‘nonsubstantive in relation to the [complaint]
allegations’’—should be viewed skeptically because of his
long association with the Union. That fact has been taken
into account. Westerlund’s recollection of when and where
he signed his union authorization card is obviously in error
as it was date stamped at the NLRB Regional Office on May
7, some 2 hours before the time fixed in his testimony. On
this latter point, Nelson’s testimony is credited.
2. Allegations of interference, restraint, and coercion
Section 8(a)(1) of the Act prohibits employer interference,
restraint, and coercion of employees who exercise their Sec-
tion 7 rights to form, join, or assist a labor organization, or
to refrain from engaging in such activity. Managers or super-
visors who coercively interrogate employees concerning
union activity or who threaten a cessation of business to dis-
courage such activity violate this prohibition. Kona 60
Minute Photo, 277 NLRB 867 (1985); Atlas Microfilming,
267 NLRB 682 fn. 2 (1983).
I find Chamberlain coercively interrogated DeSoto and
Lambert by asking them who ‘‘turned me into the Union’’
on May 7 or 8 at the Costa Mesa job. All three agree the
question was propounded. I do not credit Chamberlain’s
claim that the words were really a statement made in jest.
Neither DeSoto nor Lambert supported that claim. Moreover,
Nelson’s uncontradicted testimony that the same words were
propounded to him during their May 7 meeting strongly sup-
port the conclusion I have reached that Chamberlain was
making an effort to identify any individual responsible for
initiating the union effort. As I have concluded below that
Chamberlain threatened to close his shop in the course of the
same encounter, the coercive character of Chamberlain’s
question seems unquestionable.
Similarly, I credit DeSoto’s testimony that Chamberlain
threatened to close the shop and start over again in the
course of this same conversation at Costa Mesa on May 7.
Although Chamberlain denied ever making such a remark, I
am satisfied that DeSoto’s account should be credited. His
recollection of this statement on cross-examination as an ex-
ample of a threat made to him because of the union activity
appeared candid and truthful. On the basis of this statement,
I find that Chamberlain threatened to close the shop and start
over again to thwart the employee union activity.
Both DeSoto and Lambert said that Chamberlain also
questioned them about whether they had signed a union au-
thorization card but Lambert could not recall when or where
this occurred with any degree of certainty. DeSoto, by con-
trast, recalled that it occurred at the Laguna Beach job on
May 9 and that in the course of the same conversation,
Chamberlain mentioned that he had a meeting scheduled that
day with Nelson, a fact which was true at the time. Cham-
berlain denied that he spoke to any employee on that occa-
sion. I am satisfied that DeSoto’s recollection of the incident
is the more reliable and I credit him on this point. I find this
question was also coercive as it closely followed other un-
lawful remarks and an unlawful discharge.
By the conduct detailed above, I find Respondent violated
Section 8(a)(1) of the Act as alleged.
3. The discrimination allegations
a. Legal principles
Section 8(a)(3) of the Act makes it unlawful for an em-
ployer to discriminate against its employees to encourage or
discourage membership in a labor organization. The fol-
lowing principles, restated by the Board in Hunter Douglas,
Inc., 277 NLRB 1179 (1985), govern the evaluation of evi-
dence in discrimination cases under the Act:
The Board held in Wright Line, 251 NLRB 1083
(1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied.
455 U.S. 989, that once the General Counsel makes a
prima facie showing that protected conduct was a moti-
vating factor in an employer’s action against an em-
ployee, the burden shifts to the employer to dem-
onstrate that it would have taken the same action even
in the absence of the protected conduct. The employer
cannot carry this burden merely by showing that it also
had a legitimate reason for the action, but must ‘‘per-
suade’’ that the action would have taken place absent
the protected conduct ‘‘by a preponderance of the evi-
dence,’’ Roure Bertrand Dupont, Inc., 271 NLRB 443
(1984); NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983). If an employer fails to satisfy its
burden of persuasion, a violation of the Act may be
found. Bronco Wine Co., 256 NLRB 53 (1981).
b. Westerlund
In my judgment, General Counsel established a strong
prima facie case with respect to Westerlund’s termination. In
sum, that case shows that Westerlund was active in pro-
moting the organizational effort and signed a union card.
When Chamberlain learned that the Union was seeking rec-
ognition, he learned from Nelson that Westerlund was a
union member and later the same day unlawfully questioned
two other employees and threatened to close the shop. The
following day, Chamberlain terminated Westerlund for rea-
sons not specified to either Foreman Haugen or Westerlund
and hired a new electrician the following day.
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Chamberlain’s claim that Respondent had no further need
to employ Westerlund after it was decided to select Ferraro
to replace Haugen begs the question especially where, as
here, another electrician was hired the following day. Up to
that point, of course, Westerlund had only worked as a jour-
neyman electrician. Chamberlain’s vague claim that
Westerlund did not meet journeyman standards has a particu-
larly hollow ring in light of his unfamiliarity with
Westerlund and Haugen’s generally favorable view of
Westerlund’s work. The fact that Haugen could only shrug
his shoulders when Westerlund suggested they both knew the
real reason for his discharge strongly indicates that even
Haugen knew something was amiss.
Moreover, Respondent’s effort to demonstrate the lack of
a discriminatory motive by showing that it promoted Ferraro
even with knowledge that he signed a union card is, in my
judgment, not truthful. Contrary to Chamberlain’s testimony,
I find that Haugen did not tell Chamberlain that Ferraro had
signed a union card as Chamberlain claimed.
Loomer’s effort to paint Westerlund as a poor worker so
disliked by the general contractor’s superintendent at the
Water District job is equally unconvincing. Haugen made it
clear that Giles’ dislike of Westerlund was unrelated to his
work and that the responsibility for the aesthetic error on that
job by Westerlund really rested with his layout of the job
and not Westerlund’s installation. The fact that Respondent
took no action against Westerlund as supposedly requested
by Giles and the failure to call Giles as a witness to support
this serious claim leads me to conclude that Loomer’s ac-
count is not truthful.
In these circumstances, I find Respondent’s evidence de-
signed to establish that Westerlund would have been termi-
nated on May 8 even in the absence of his union activity is
unpersuasive. Accordingly, I find that Westerlund’s termi-
nation violated Section 8(a)(1) and (3) of the Act as alleged.
c. DeSoto
I have concluded that the General Counsel also met the
burden imposed by Wright Line in DeSoto’s case. Thus, the
uncontradicted evidence reflects that Chamberlain was famil-
iar with DeSoto’s past involvement with IBEW Local 441
and, on learning of the current organizing drive, Chamberlain
immediately suspected DeSoto’s involvement as is evident in
his remarks to Nelson during their May 7 exchange. This
suspicion on Chamberlain’s part is also strongly suggested
by the fact that he questioned DeSoto twice about the union
activities over the course of the 2 days after May 7.
In late June, Respondent simply ceased assigning DeSoto
further work. Although DeSoto was told Respondent had no
further work because business happened to be slow, that ex-
planation is entirely at odds with the concurrent hiring of
Bessem.
Loomer’s explanation of Respondent’s failure to recall
DeSoto, i.e., DeSoto was already employed by another large
contractor, fails to explain its hiring of Bessem while DeSoto
was being told that no work was available. In these cir-
cumstances, I find that Respondent’s belief—whether known
or suspected—that DeSoto was involved in the organizing ef-
fort provides the only plausible explanation from this record
for its failure to give DeSoto further assignments after June
21.
For the foregoing reasons, I conclude that Respondent has
failed to provide persuasive evidence to show that DeSoto
would have received no further assignments after June 21
even in the absence of his union activity. Accordingly, I find
that Respondent discriminated against DeSoto in violation of
Section 8(a)(1) and (3) of the Act as alleged.
4. The election objections
Objectionable conduct occurring between the date of the
filing of an NLRB election petition and the date of the elec-
tion itself may be considered in assessing whether or not an
election should be set aside. Red’s Novelty Co., 222 NLRB
899 (1976). Section 8(a)(1) and (3) unfair labor practices are
treated as objectionable conduct which, a fortiori, interferes
with the exercise of a free and untrammeled choice in an
NLRB election sufficient to warrant setting aside an election
outcome. Dal-Tex Optical Co., 137 NLRB 1782, 1786
(1962); Bama Co., 145 NLRB 1141, 1144 (1964).
Having found that Respondent violated Section 8(a)(1) and
(3) of the Act between May 7—the date the election petition
was filed—and August 2—the date the election was held—
I conclude that Union Objections 1 and 2 are meritorious.
Accordingly, I will recommend that the election be set aside
and, in view of the finding below that the chances for a fair
rerun election are slight, that the election petition be dis-
missed.
5. The refusal-to-bargain conduct
Section 8(a)(5) prohibits an employer from refusing to bar-
gain with a representative selected by a majority of its em-
ployees in an appropriate unit.
A Board bargaining order may be based on evidence of a
union’s majority status in the form of authorization executed
by a majority of the unit employees with or without a bar-
gaining demand in ‘‘exceptional’’ cases marked by ‘‘out-
rageous’’ and ‘‘pervasive’’ unfair labor practices. Similarly,
the Board may require recognition and bargaining ‘‘in less
extraordinary cases marked by less pervasive practices which
nonetheless still have a tendency to undermine the [union’s]
majority strength and impede the election processes,’’ not-
withstanding that the preferred means under the Act for
ascertaining employee sentiment concerning union represen-
tation is the election process. NLRB v. Gissel Packing Co.,
395 U.S. 575, 613–615 (1969). However, absent a demand
to bargain in an appropriate unit, the Board does not find,
as I do here, a violation of Section 8(a)(5). See, e.g., Color
Tech Corp., 286 NLRB 476 (1987). Bargaining orders issued
in cases without the ‘‘demand’’ predicate are designed to
remedy other unfair labor practices.
The General Counsel believes this is one of the ‘‘less ex-
traordinary cases marked by less pervasive practices’’ which
nonetheless warrants finding that Respondent unlawfully re-
fused to recognize and bargain with the Union on May 7.
For this reason, General Counsel asks that Respondent now
be ordered to recognize and bargain with the Union notwith-
standing the August 2 election results because the chances
for a fair rerun election are slight. I agree.
I find that Nelson satisfied the essential elements required
to establish such a violation on May 7 during his visit with
Chamberlain. By stating to Chamberlain that ‘‘it was time
for [Chamberlain] to come back and become a signatory con-
589HARBOR CREST ELECTRICAL
tractor again,’’ Nelson unmistakably requested Respondent to
recognize and bargain with the Union concerning Respond-
ent’s electricians.
Furthermore, as Respondent’s electricians comprise essen-
tially all its field employees and as the parties subsequently
stipulated that a unit limited to Respondent’s electricians is
appropriate, I find that unit is appropriate for purposes of
collective bargaining under the Act.
The next question for resolution here is whether General
Counsel demonstrated the Union’s majority standing at the
time of Nelson’s recognition request even on the basis of its
authorization cards. On that issue, the evidence reflects that
Respondent employed eight individuals on May 7 when the
Union effectively demanded recognition. Of the eight, I have
concluded that Loomer and Haugen were supervisors and,
hence, they are discounted in determining the Union’s major-
ity standing on that date.
Of the remaining six individuals, Jeff Chamberlain—the
high school student—does not qualify for placement in this
unit. My conclusion is based on Jeff Chamberlain’s status as
a full-time student and son of the corporate president; the
limited number of hours per week he worked and his sub-
stantially lower hourly rate of pay compared to Respondent’s
electricians especially where, as here, Respondent was appar-
ently bound by ‘‘prevailing wage’’ regulations on several
projects; and the lack of evidence that he performed any
work similar to the Respondent’s electricians at all, or was
in any manner qualified to perform even elementary duties
normally expected of an employee in the electrician’s trade.
As Jeff Chamberlain’s status, employment, work schedule,
pay, qualifications, and duties varied dramatically from other
unit employees, I find that he did not share a sufficient com-
munity of interest with Respondent’s electricians to warrant
inclusion in the unit found appropriate here. Cf. Linn Gear
Co. v. NLRB, 608 F.2d 791 (9th Cir. 1979).
In view of my conclusion concerning Jeff Chamberlain, I
find it unnecessary, for reasons evident below, to resolve the
status of Tim Chamberlain here.
Concluding as I have that Loomer, Haugen, and Jeff
Chamberlain are not unit employees, Respondent employed,
at most, five unit employees on May 7. The General Counsel
established that three of those five—DeSoto, Ferraro, and
Westerlund—executed union authorization cards which au-
thorize, without qualification, IBEW Local 441 to represent
them in collective bargaining. Hence, when the Union re-
quested recognition on May 7, it represented a majority of
Respondent’s employees in an appropriate unit as evidenced
by the authorization cards executed by those three employ-
ees.
The Board examines both the severity and the present ef-
fects of the unfair labor practices committed in deciding
whether a Gissel remedy is appropriate. Quality Aluminum
Products, 278 NLRB 338, 339 (1986). Threats of closure and
unlawful employee discharges designed to interfere with an
organizational effort are deemed ‘‘hallmark’’ violations
which strongly support such a remedy. Somerset Welding &
Steel, 304 NLRB 32 (1991).
Unquestionably, Respondent engaged in flagrant conduct
which undermined the Union’s majority. Almost imme-
diately, Chamberlain threatened to close the shop, unlawfully
discharged Westerlund, and engaged in coercive interrogation
designed to identify the sources of union support. Later, Re-
spondent unlawfully ceased assigning work to DeSoto. To
fill the void left by the departure of DeSoto and Westerlund,
Respondent hired two additional employees. The cumulative
effect of such conduct produced, one may reasonably infer,
the Union’s 6–0 drubbing in the August 2 election.
By terminating two of the three card signers Respondent
practically eliminated any hope the Union had for maintain-
ing its majority. Additionally, the unlawful threat to close
and the coercive interrogation reached even a third member
of this small bargaining unit. Indeed, by quitting time on the
day following the Union’s request for recognition, only Fer-
raro—soon to be made field foreman in place of Haugen—
and Chamberlain’s son, Tim, appear to have been untouched
by Respondent’s serious, unlawful conduct.
Considering the small size of the unit, the significant num-
ber of employees affected by the ‘‘hallmark’’ unfair labor
practices, the lingering effect unlawful discharges tend to
have on all employees, the particular vulnerability of these
tradesmen for early layoff and delayed recall when work is
slow, and the hiring of replacement employees who might
well qualify to vote in a future election under eligibility rules
applicable in this industry, I find the possibility of erasing
the effects of Respondent’s past conduct and of ensuring
even a reasonably fair rerun election by use of traditional
remedies is extremely slight. For that reason I find that a
bargaining order remedy here is appropriate.
Based on the foregoing, I conclude that Respondent vio-
lated Section 8(a)(5) of the Act as alleged by failing to rec-
ognize and bargain with the Union when requested on May
7. To remedy this violation, Respondent will be required to
do so now.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, occurring
in connection with Respondent’s business operations, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The IBEW Local 441 is a labor organization within the
meaning of Section 2(5) of the Act.
3. By coercively interrogating employees about their ac-
tivities on behalf of IBEW Local 441 and by threatening to
close its shop if employees selected a labor organization to
represent them in collective bargaining, Respondent engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discharging Scott Westerlund on May 8 and by fail-
ing to recall Glen DeSoto for further employment after June
21 in order to discourage their membership in IBEW Local
441, Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
5. By engaging in the unfair labor practices specified in
paragraphs 3 and 4, above, Respondent interfered with the
conduct of the election in Case 21–RC–18696 designed to
provide employees an opportunity to freely and fairly express
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
15 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
their choice concerning the selection of a collective-bar-
gaining repre sentative.
6. By refusing to recognize and bargain with IBEW Local
441 in order to gain time to undermine that labor organiza-
tion’s majority standing among its electrician employees, Re-
spondent engaged in an unfair labor practice within the
meaning of Section 8(a)(1) and (5) of the Act.
7. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, the recommended Order requires Re-
spondent to cease and desist therefrom and to take the fol-
lowing affirmative action designed to effectuate the policies
of the Act.
To remedy Westerlund’s unlawful discharge and its failure
to recall DeSoto, Respondent must immediately offer to rein-
state them to their former positions, or if their positions no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other benefits. Respondent
must also make Westerlund and DeSoto whole for the loss
of any pay and benefits suffered by reason of the discrimina-
tion against them. Backpay, if any, shall be computed on a
quarterly basis as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as provided in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Contributions due
to any trust fund account on behalf of these two employees
shall be determined in accord with Merryweather Optical
Co., 240 NLRB 1213 (1979).
Respondent must further expunge from any of its records
any reference to Westerlund’s May 8 discharge and to its
failure to recall DeSoto. Thereafter, Respondent must notify
Westerlund and DeSoto, in writing, that such action has been
taken and that any evidence related to the unlawful discrimi-
nation against them will not be considered in any future per-
sonnel action affecting them. Sterling Sugars, 261 NLRB
472 (1982).
Respondent must also recognize and bargain, on request,
with IBEW Local 441 as the exclusive representative of its
employees in the unit found appropriate.
In view of my conclusion that Respondent engaged in fla-
grant unfair labor practices, including a threat to close its op-
eration and the termination of two of five unit employees,
which were designed to, and did, destroy the Union’s major-
ity support, I find that a broad order enjoining further inter-
ference with employee Section 7 rights is warranted.
Hickmott Foods, 242 NLRB 1357 (1979).
Finally, Respondent must post the notice attached to this
decision at its office and any existing jobsites in order to no-
tify employees of the outcome of this matter and their rights
under the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Harbor Crest Electrical, Inc., Tustin,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for supporting International Brotherhood of Elec-
trical Workers, Local Union No. 441, AFL–CIO (IBEW
Local 441) or any other union.
(b) Coercively interrogating any employee about sup-
porting, or engaging in activities on behalf of IBEW Local
441 or any other union.
(c) Threatening to close its shop if employees select IBEW
Local 441, or any other union, to represent them in collective
bargaining.
(d) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Scott Westerlund and Glen DeSoto immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of the administrative law judge’s decision in this
case.
(b) Remove from its files any reference to the unlawful
discrimination against Scott Westerlund and Glen DeSoto
and notify those in writing that this has been done and that
the unlawful discrimination against them will not be used in
future personnel actions in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine
compliance with all terms of this Order, including the
amount of backpay due, the propriety of any employee rein-
statement, and the expungement of references to employee
discrimination.
(d) Recognize and, on request, bargain with IBEW Local
441 as the exclusive representative of the employees in the
following appropriate unit concerning terms and conditions
of employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All electricians employed by Respondent at its facility
located at 14831 Myford Road, Suite A, Tustin, Cali-
fornia; excluding all other employees, professional em-
ployees, office clerical employees, guards and super-
visors as defined in the Act.
(e) Post at its office in Tustin, California, and at its exist-
ing jobsites copies of the attached notice marked ‘‘Appen-
dix.’’15 Copies of the notice, on forms provided by the Re-
591HARBOR CREST ELECTRICAL
gional Director for Region 21, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the election in Case 21–RC–
18696 be set aside and that the petition in that case be dis-
missed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or discriminate against employees
in order to discourage membership in the International Broth-
erhood of Electrical Workers, Local 441, AFL–CIO (IBEW
Local 441), or any other labor organization.
WE WILL NOT coercively question our employees about
their union activities or threaten to close our shop to discour-
age union activities.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL recognize and bargain with IBEW Local 441 as
the exclusive collective-bargaining representative for a unit
comprised of our electrician employees, excluding all other
employees, professional employees, office clerical employ-
ees, guards and supervisors as defined in the law.
WE WILL immediately offer to reinstate Scott Westerlund
and Glen DeSoto to their former positions, pay each of them
for wages and benefits he lost as a result of his discharge
with interest as provided by law, and notify each in writing
that we have expunged any reference to his discharge from
our records and will not rely on his discharge in future per-
sonnel actions.
HARBOR CREST ELECTRICAL, INC.