Mathis Electric Co.

National Labor Relations Board - Board Decisions

Jul 8, 1994

314 N.L.R.B. 258 (N.L.R.B. 1994)

258
314 NLRB No. 49
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
The Respondent does not except to the judge’s findings that it vio-
lated Sec. 8(a)(1) by interrogating employees about their union ac-
tivities, implementing job quotas, and threatening employees with ar-
rest, discharge, jobsite closure, and more onerous working condi-
tions. The Respondent also does not except to the judge’s finding
that it violated Sec. 8(a)(3) and (1) by assigning an employee more
onerous working conditions and thereafter discharging him for en-
gaging in a strike.
1 All dates hereinafter are in 1993 unless I indicate otherwise.
2 The charge in Case 11–CA–15547–3 was amended on June 30.
Mathis Electric Co., Inc. and Local Union 342, of
the International Brotherhood of Electrical
Workers, AFL–CIO, affiliated with Inter-
national Brotherhood of Electrical Workers,
AFL–CIO. Cases 11–CA–15447, 11–CA–15447–
2, and 11–CA–15447–3
July 8, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On January 7, 1994, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Re-
spondent 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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions 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, Mathis Electric Co., North
Wilkesboro, North Carolina, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Donald R. Gattalaro, Esq., for the General Counsel.
Guy F. Driver, Esq. (Womble, Carlyle, Sandridge & Rice),
of Winston-Salem, North Carolina, for the Company.
Gary M. Maurice, of Winston-Salem, North Carolina, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard
these cases in trial in Winston-Salem, North Carolina, on No-
vember 4 and 5, 1993.1 The cases arose when Local Union
342, of the International Brotherhood of Electrical Workers,
AFL–CIO, affiliated with International Brotherhood of Elec-
trical Workers, AFL–CIO (Union) filed charges against
Mathis Electric Co., Inc. (Company) on May 17, in Case 11–
CA–15547, on May 18 in Case 11–CA–15547–2, and on
May 19 in Case 11–CA–15547–3.2 After investigating the
charges, the Regional Director for Region 11 of the National
Labor Relations Board (Board) issued a complaint and notice
of hearing (complaint) on July 1. The complaint alleges that
the Company on May 6, 7, and 8 assigned more onerous
working conditions to and, thereafter on May 14, discharged
its employee Kim Farley (Farley) because of his union activi-
ties thereby violating Section 8(a)(3) and (1) of the National
Labor Relations Act (Act). It is also alleged the Company,
on or about May 17, refused to hire, and continues to refuse
to hire, Gary M. Maurice because of his union activities,
thereby violating Section 8(a)(3) and (1) of the Act. It is fur-
ther alleged that on specified dates in April and May, specifi-
cally named company supervisors and/or agents interrogated
employees concerning their union activities and desires,
threatened employees with jobsite closure and discharge,
more onerous working conditions, and unspecified reprisals
because of their union activities, implemented job quotas and
threatened employees with arrest to discourage their union
activities. All the above is alleged to have tended to interfere
with, restrain, and coerce employees in the exercise of their
rights guaranteed by Section 7 of the Act thereby violating
Section 8(a)(1) of the Act.
The Company admits its operations are in and affect com-
merce and that the Board’s jurisdiction is properly invoked
and that the Union is a labor organization within the meaning
of the Act. The Company denies all alleged wrongdoings.
Counsel for the General Counsel (Government) contends, but
the Company denies, that Office Manager/Trainee Renee
Mathis (R. Mathis) is an agent of the Company within the
meaning of Section 2(13) of the Act.
All parties were afforded an opportunity to call, examine,
and cross-examine witnesses and to present relevant evi-
dence. I have considered the entire record, including briefs
filed by the Government and Company. I carefully observed
the demeanor of the witnesses as they testified. Based on the
above and more particularly on the findings and reasonings
set forth below, I find the Company violated the Act essen-
tially as outlined in the complaint.
FINDINGS OF FACT
I. JURISDICTION
The Company is a North Carolina corporation with a facil-
ity located at North Wilkesboro, North Carolina, from which
it is engaged in the business of electrical contracting at var-
ious locations including the Lowes Superstore site in Greens-
boro, North Carolina. During the 12 months preceding
issuance of the complaint herein, a representative period, the
Company performed electrical services for customers outside
the State of North Carolina, valued in excess of $50,000. It
is alleged in the complaint, the parties admit, the evidence
establishes, and I find, the Company is an employer engaged
259MATHIS ELECTRIC CO.
3 Farley stated there was an understanding between him and Mau-
rice that part of his mission at the Company was to get the other
employees to become union members. Farley described this type em-
ployment as ‘‘salting’’ a project. Farley said the concept of ‘‘salt-
ing’’ was ‘‘hiring into a non-union shop to organize and educate em-
ployees . . . about the benefits . . . the Union [had] to offer.’’
4 Farley described a ‘‘ditch witch’’ as a tractor equipped with
blades for cutting trenches in the soil into which conduit could be
placed.
5 Farley described a tamp hammer as being similar to a jack ham-
mer except it was utilized to tamp soil. Farley said he utilized the
tamp hammer to tamp soil onto conduit that had been placed in
trenches opened up by the ‘‘ditch witch.’’
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION STATUS
It is alleged in the complaint, the parties admit, the evi-
dence establishes, and I find, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE FACTS
A. Kim Farley’s Employment
Farley, a journeyman electrician and 7-year union member,
said he needed work in May because his unemployment ben-
efits were running out. Union Business Manager Gary Mau-
rice (Union Business Manager Maurice) referred Farley to
the Company.3 On April 14, Farley was hired by Foreman
Michael Griffin (Foreman Griffin) as an electrician at the
Company’s Lowes Superstore site in Greensboro, North
Carolina.
Farley said he first discussed the Union with fellow elec-
tricians Steve Capps and Mike Canter in the parking lot at
the worksite after work on April 19. According to Farley,
Capps was concerned that any work after 8 hours per day
should be at time-and-a-half pay. Farley told Capps it could
be if they joined a union and asked if they knew anything
about the Union herein.
Farley spoke with those same two electricians and elec-
trician Ralph Rhodes the next day (April 20) at their evening
break. Farley stated that as they talked, Foreman Griffin
joined in and ‘‘jumped over in front’’ of him and stated,
‘‘Well, tell me all about it, Kim.’’ Farley asked ‘‘What’’ and
Foreman Griffin replied ‘‘The Union’’ and added he was
‘‘serious,’’ and then asked ‘‘You’re in it, right?’’ Farley told
Foreman Griffin he was and Griffin again wanted to know
all about the Union. Farley explained the benefits of being
union such as ‘‘insurance,’’ ‘‘retirement,’’ ‘‘better working
conditions,’’ and the ‘‘brotherhood amongst the members.’’
Foreman Griffin asked how the insurance worked and Farley
explained it to him. Foreman Griffin told the group ‘‘it
sounded good,’’ but it would not work because the Company
‘‘would get rid of everyone of us and then where would we
work.’’ Farley said he told Foreman Griffin and the others
that if the Company was union, the employees could sign an
out-of-work book and when the Company had work at other
jobsites in the union’s jurisdiction, the employees could go
back to work for the Company ‘‘without begging for a de-
cent wage and retirement and all for [their] families.’’ Ac-
cording to Farley, Foreman Griffin responded:
No, it wouldn’t work [President] Roger Mathis would
get rid of all of us. He had it fixed so that the equip-
ment was rented and he’d sell the tools and materials
and he’d go out of business and he said he meant it,
to.
The conversation ended with Foreman Griffin telling the em-
ployees to go back to work.
On April 21, Farley told Foreman Griffin that Union Busi-
ness Manager Maurice would be coming to the jobsite that
Friday and would bring literature on the Union. Farley said
Foreman Griffin wasn’t any longer interested in the Union
and he asked why the sudden change that he had been inter-
ested the day before. According to Farley, Griffin said,
‘‘Well, you know, Mathis was a small outfit, they would
never go union.’’ Griffin told Farley the Company only had
approximately 40 employees including the 9 that worked at
the Lowes Superstore site. Farley explained to Foreman Grif-
fin it only took a 30-percent showing of interest with signed
union authorization cards for the employees to get a Board-
conducted election where they voted ‘‘behind closed cur-
tains’’ on whether they wanted the Union to represent them.
Farley testified that on April 22, he and fellow electrician
Rhodes were assigned to install ‘‘rows of lights’’ at the con-
struction site. Farley stated Foreman Griffin approached the
work area and asked how many rows he [Farley] had in-
stalled. Farley told Griffin he didn’t know, that he had not
been counting, maybe three rows. According to Farley, Fore-
man Griffin asked Rhodes how many he had completed, and
Rhodes told him five rows. Griffin walked away at that
point.
Farley stated he approached Foreman Griffin the next day
(April 23), and asked what he meant by how many rows of
lights he had installed. Foreman Griffin told Farley he had
placed electrician Rhodes alongside him to see how many
rows he installed and added Rhodes had told him that he
(Rhodes) had done twice as many rows as Farley. Farley told
Foreman Griffin ‘‘I thought you said it wasn’t going to be
no problem with me working here, me being the Union.’’
According to Farley, Foreman Griffin just shook his head
and asked if he had been doing a good job. Farley said he
had never been asked to do any certain number of lights (or
anything else) prior to this occasion.
On April 27, Farley was assigned to install canopy lights
along walkways at the front of Lowes Superstore. According
to Farley, Foreman Griffin told him he should be able to in-
stall 20 lights a day on the canopy. Farley promised to do
his best. Farley stated Foreman Griffin’s attitude toward him
had changed.
On May 6, Farley was assigned to ‘‘rough in’’ an office
inside the building but after obtaining the needed materials
was advised by an apprentice that Foreman Griffin needed
someone with a ‘‘weak mind’’ and a ‘‘strong back’’ and had
sent for Farley. Farley was then assigned by Foreman Griffin
to clean ditches behind a ‘‘ditch witch’’4 in the parking lot.
Farley said this type of work was normally performed by ei-
ther an apprentice or a laborer. The next 2 days (May 7 and
8), Farley was assigned to outside work operating a ‘‘tamp’’
hammer.5
Electrician Charles Adams (Adams) testified that in May
he heard Foreman Griffin refer to Farley as ‘‘union,’’ ‘‘his
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Employee Samuel Johnson testified he heard Farley tell Foreman
Griffin he was going on a ULP strike and Griffin asking what a ULP
strike was.
7 London testified Foreman Griffin came to the picket line, handed
Farley his check, and asked what was happening to which Farley
said they were on an unfair labor practice strike.
8 Employee Johnson testified he observed Foreman Griffin handing
Farley his paycheck and heard Griffin tell Farley he no longer
worked for the Company.
9 Maurice explained he placed the letter in his rural mailbox on
May 14; however, it was not picked up by the rural postman until
Monday, May 17. The Postal Service return receipt reflects this sec-
ond letter was received by the Company on May 20.
bull,’’ and ‘‘his union man.’’ Adams stated that when Farley
was assigned to do outside work, Foreman Griffin stated ‘‘he
had Union sweating like a bull.’’ Adams also stated that on
May 13, while he was in the blueprint room, Foreman Grif-
fin asked him if Farley had been talking union and who had
signed authorization cards. Adams said that before he could
answer, Foreman Griffin stated ‘‘he didn’t need any of this,
that he could fire everybody on the job and replace them.’’
On May 13, at the morning break, Farley said he talked
with the employees because there had been complaints about
‘‘paychecks,’’ ‘‘no water on the job,’’ and operating lifts
unsafely. Farley passed out union authorization cards to each
of the employees and told them if they signed the cards, it
would be ‘‘a start’’ toward change and could afford the
Union an opportunity to represent and bargain for them on
‘‘wages, insurance, retirement, and so forth.’’ Farley ex-
plained to the employees they only needed 30 percent of the
approximately 40 employees, to sign cards in order to get an
election to decide if they wanted the Union to represent
them. Farley stated all the employees at the Lowes
Superstore site (except Rhodes) signed cards and returned
them to him. According to Farley, Foreman Griffin observed
the meeting and approached asking the group ‘‘What’s this,
a Union meeting?’’ Farley told him, no, that he was just talk-
ing to the men.
Farley met with Union Business Manager Maurice at noon
that same day (May 13). Farley told Maurice he was ‘‘fed
up’’ with the treatment he was subjected to by the Company
and he was going to go on a unfair labor practice (ULP)
strike against the Company.
Union Business Manager Maurice suggested that Farley
wait until later that afternoon so he could properly notify
Foreman Griffin and ensure the other employees knew how
to contact the Union if they needed assistance. Maurice told
Farley that when he was ready to start a ULP strike to first
come by the union hall.
Later that afternoon (May 13), Union Business Manager
Maurice prepared the following letter which he deposited in
the mail at 4:30 p.m. on May 14:
May 13, 1993
Mr. M. Roger Mathis
Mr. Mike Griffin
Mathis Electric Co., Inc.
Rt. 3, Box 400
P. O. Box 546
N. Wilkesboro, N.C. 28659
Dear Sirs:
Please be advised that the following employees, Kim A.
Farley, Richard E. Brooks, and Gary M. Maurice, are
on Unfair Labor Practice Strike in protest of the Unfair
Labor Practices of your company. Though we are not
actively picketing on an everyday basis, we remain on
Strike.
Respectfully yours,
/s/ Gary M. Maurice
Gary M. Maurice
Business Manager
Local Union 342, IBEW
At approximately 3:30 p.m., May 13, Farley notified Fore-
man Griffin ‘‘we were putting this job on a Unfair Labor
Practice strike’’ and that he ‘‘had nothing further to say to
him until further notice.’’ Foreman Griffin asked what a ULP
strike was.6 Farley testified he told Foreman Griffin:
I told him I didn’t have nothing further to say to him
until further notice and I then proceeded to each of the
men and handed them one of Gary’s [Union Business
Manager Maurice’s] business cards and told them I was
leaving the job on an Unfair Labor Practice strike to try
to change things and make them a little better for us.
Anything to their disliking because of them possibly af-
filiated with this, to contact Gary [Union Business
Manager Maurice] at this number and we’d do what we
could.
On May 14, at around noon, Farley and fellow union
members David London and Doug Williams established a
picket line in front of the Company’s Lowes Superstore site.
Farley testified Foreman Griffin and electrician Rhodes drove
to where they were in a company truck and asked what they
were doing. Farley told Griffin just what the sign said that
they were on strike.7 Foreman Griffin handed Farley his pay-
check and stated ‘‘you don’t work here anymore.’’8 Farley
told Griffin he did and Griffin responded, ‘‘No, your ass is
fired and if you put one foot on this property, I’ll have you
arrested.’’
Union Business Manager Maurice testified he recruited the
two union members that helped Farley picket. Maurice testi-
fied he prepared a second letter to the Company on Friday,
May 14.9 That letter reads:
May 14, 1993
4:30 P.M.
Mr. M. Roger Mathis
Mr. Mike Griffin
Mathis Electric Company, Inc.
Rt. 3, Box 400
P. O. Box 546
N. Wilkesboro, N.C. 28659
Dear Sirs:
Please be advised that the following employees, Kim A.
Farley, Richard E. Brooks, and Gary M. Maurice, have
effective this 14th day of May, 1993 at 4:30 P.M.
ended their Unfair Labor Practice Strike and agree to
return to work unconditionally.
Respectively yours,
/s/ Gary M. Maurice
Gary M. Maurice
Business Manager
261MATHIS ELECTRIC CO.
10 Brooks testified he had been referred to the Company by the
North Carolina Employment Security Commission.
11 Maurice said he noted on his application he was the business
manager for the Union. Maurice acknowledged part of his objective
in seeking employment at the Company was to ‘‘salt’’ the work-
place.
12 Electrician James Edwards testified he was in Union Business
Manager Maurice’s office on the morning in question and overhead
Maurice’s portion of the conversation. Edwards corroborated
Maurice’s testimony.
Local Union 342, IBEW
Electrician Samuel Johnson testified Foreman Griffin was
angry about the picket line and after lunch asked him elec-
trician Charles Adams if they wanted to join Farley on the
picket line. Johnson told Griffin they did not that they had
come to work. Electrician Adams testified Foreman Griffin
asked and him if he had ever seen anything like this before.
Adams told Griffin he didn’t know. Griffin stated he didn’t
know if Farley had quit or if he was fired and added Farley
would never work for him on any of his jobs again. Accord-
ing to Adams, Foreman Griffin ‘‘stated in loud, angry tones
that if anybody else wanted to go out and join them, they
were welcomed to . . . that Lowes would bring in their at-
torneys and have all of them put in jail.’’
B. Union Business Manager Gary Maurice
Union Business Manager Maurice testified that in addition
to his other actions alluded to above, he and electrician Rich-
ard Brooks10 applied for employment with the Company at
the jobsite on May 13 at approximately 11:30 a.m. Union
Business Manager Maurice told Foreman Griffin they were
looking for work as electricians and would like to fill out ap-
plications. Griffin told them the job was ‘‘close to finishing’’
and he didn’t think he needed anyone. Maurice told Griffin
the Company was listed with the North Carolina Employ-
ment Security Commission and they would like very much
to fill out an application even if the Company didn’t need
anyone at that time. Foreman Griffin then told them to
‘‘hang loose’’ and he would ‘‘get right back with an appli-
cation.’’ After Griffin returned, the three of them walked
across the building toward Griffin’s truck and on the way
Griffin asked about their work experience. Maurice told Grif-
fin he had an unlimited state contractor’s license with 20
years’ experience and Brooks had 28 years of experience.
Foreman Griffin told them with a chuckle, ‘‘You all are
over-qualified.’’ Maurice said he had never heard that before.
Foreman Griffin gave the two of them blank applications
from his truck, told them to fill them out, and to place them
back in his truck.11 Maurice said they did as instructed.
As noted elsewhere in this decision, Union Business Man-
ager Maurice spoke with Farley on this same occasion and
then left the jobsite.
Union Business Manager Maurice stated that at approxi-
mately 9 a.m. on May 17, he received a telephone call from
a ‘‘Mike’’ who stated he was with the Company at its Lowes
Superstore site. The caller told Maurice that he (Maurice)
had applied for work with the Company the week before and
asked if he was still interested. Maurice told the caller he
was, and the caller told him they had 2 or 3 weeks’ work
(with some long hours) left and they needed him imme-
diately. Maurice asked how soon and the caller told him to
report at 7 a.m. the next day. The caller asked about elec-
trician Brooks and Maurice told the caller he was sure
Brooks was still interested and offered to contact Brooks.
The caller said he would contact Brooks. Maurice then asked
‘‘this is Mike Griffin with Mathis Electric Company out of
North Wilkesboro.’’ The caller said he was. Union Business
Manager Maurice told Griffin he was glad he had called be-
cause he had written Griffin a letter on behalf of Farley end-
ing the unfair labor practice strike against the Company and
agreeing to return to work. Maurice asked Griffin if he
would like for him to bring Farley along. Maurice said
‘‘there was a long silence’’ and then Griffin finally asked if
he was associated with ‘‘this Kim Farley?’’ Maurice said he
was and noted he had reflected on his application that he was
the business manager for the Union in that area. According
to Maurice, Foreman Griffin said something to the effect
‘‘this won’t work.’’ Maurice responded saying you don’t
want Farley in the morning. Griffin said ‘‘no, let’s forget this
conversation ever took place or ever happened,’’ that he
didn’t need any trouble. Maurice told Foreman Griffin there
would not be any trouble, that they were going to continue
to organize the Company but would do so only before or
after work or during breaktimes. Maurice assured Foreman
Griffin they would do the work that needed to be done. Fore-
man Griffin told Union Business Manager Maurice he didn’t
think he could use them or needed them and thanked Mau-
rice for his time and hung up the telephone.12
Electrician Johnson testified that at the jobsite on May 17,
Foreman Griffin told him he was going to hire two elec-
tricians that had applied for work but when he was talking
with them, he found out they were Farley’s representatives
and upon learning that he just told them to forget it, that he
didn’t want anything to do with the Union.
C. Others Seeking Employment
Electricians Gregory Davis and Richard Smith testified
they went to the Company’s Lowes Superstore site on May
19 seeking employment. Smith testified they asked Foreman
Griffin if the Company was hiring and Griffin told them
‘‘No, we’re about to wrap the job up. We don’t need any-
one.’’ Smith asked if he was taking applications and Griffin
said no. Smith said as they were walking away, Foreman
Griffin asked, ‘‘You don’t belong to any of them Unions or
nothing like that, do you?’’ Davis told Griffin, ‘‘No, I’m not
with the Union’’ and asked ‘‘do you have to have a Union
card to work on this project.’’ Foreman Griffin said no.
Davis said they just wanted a job. Davis told Foreman Grif-
fin he thought all of this ‘‘union stuff’’ was up north and
Griffin responded it wasn’t.
D. The Investigative Interviews
Electrician Johnson testified he was instructed to report to
the Company’s jobsite construction trailer on May 25. Upon
his arrival, he was greeted by Office Manager/Trainee R.
Mathis and Secretary Treasurer/Office Manager Wanda
Mathis (W. Mathis). Introductions were made and R. Mathis
asked Johnson if he objected to their conversation being re-
corded. Johnson did not object and R. Mathis began to ques-
tion him. After some preliminary questions, Johnson was
asked if he saw anything happen between Farley and Fore-
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The temporary work force at this jobsite consisted of Samuel
Johnson (hired 3–18–93 Johnson had been hired on 6–24–92 at a
different location but, according to Foreman Griffin, new applica-
tions are required at each jobsite), Terry Custer (hired 3–17–93),
Steve Capps (hired 3–17–93), Michael Cantor (hired 3–17–93),
Charles Adams (hired 3–18–93), and Kim Farley (hired 4–14–93).
14 Griffin said that when Farley filled out his application, he indi-
cated he was unemployed and really needed a job.
15 It is undisputed that for approximately 2 weeks Farley left his
union book in the Company’s construction trailer ‘‘so everyone
could see it.’’
16 Foreman Griffin specifically denied assigning more onerous
work to Farley for unlawful reasons.
17 Foreman Griffin also denied asking Adams if Farley had been
talking union or had asked him to sign a union card. Griffin further
denied telling Adams he didn’t need any of this, that he could fire
everyone or that Farley would never work for him again.
18 Foreman Griffin denied threatening Farley with arrest or telling
anyone Farley had been fired or would never work for the Company
again. Griffin also denied asking employees if they wished to join
Farley on the picket line.
man Griffin or overheard any exchanges between the two.
Johnson told the Mathises the only thing he heard was Farley
saying on May 14 he was leaving because of the Company’s
unfair labor practices. Johnson told the Mathises Foreman
Griffin asked Farley what he meant and Farley told him the
Company was engaging in unfair labor practices. R. Mathis
asked Johnson if Foreman Griffin treated Farley any dif-
ferently because he was a union member. Johnson said he
did not know. R. Mathis asked Johnson if he knew Gary
Maurice and/or Richard Brooks. Johnson told the Mathises
he had heard of them but had not seen them at the jobsite
and added they did not work for the Company. Johnson testi-
fied the interview ended shortly thereafter.
E. Foreman Griffin’s Account of the Events and
Related Matters
Foreman Griffin testified he staffed the Lowes Superstore
jobsite, in keeping with the Company’s normal practice, by
hiring only temporary employees.13 Foreman Griffin said he
told all applicants the Lowes Superstore project would take
7 to 8 weeks—‘‘a real rush project’’—of 12-hour days, 6
days per week.
Griffin testified he had already hired all the employees he
needed prior to Farley’s seeking employment.14 Griffin said
an employee quit and as a result he contacted Farley who
was the last person hired for the Lowes Superstore project.
Foreman Griffin said he learned ‘‘several weeks’’ after
Farley started working that he was a union sympathizer.
Griffin said he heard Farley talking ‘‘the benefits of the
union’’ as the employees were taking a break near his con-
struction site trailer.15 Foreman Griffin denied asking Farley
about the Union or telling Farley he was interested in the
Union. Griffin denied telling Farley the Company was small
and would never go union or would get rid of everyone in-
volved with the Union. Griffin specifically denied ever
threatening to fire anyone because of the Union.
Foreman Griffin testified Farley was utilized as needed at
the worksite and denied ever at any time setting or establish-
ing work goals for Farley. Foreman Griffin stated that on an
occasion Outside Foreman Rick Sheets needed help installing
underground electrical conduit. According to Griffin, Farley
was at the time working outside at the front of the building
so he assigned Farley to assist Outside Foreman Sheets.16
Outside Foreman Sheets testified he, on one occasion,
asked Foreman Griffin for help because he ‘‘had a consider-
able amount of ditches opened up’’ and they were ‘‘calling
for rain’’ and he needed to have the wire placed in the
ground and the ditches covered. Sheets stated Farley helped
him clean ditches and tamp dirt and that he seemed ‘‘tickled
to death to get out of the building.’’ Outside Foreman Sheets
acknowledged there ‘‘ain’t nothing easy’’ about ditch work.
Foreman Griffin specifically denied referring to Farley as
‘‘union’’ or saying to electrician Adams that he had ‘‘union
sweating like a bull.’’17
Foreman Griffin testified that on May 13, as he was walk-
ing around the project, he saw Farley ‘‘coming toward me
with all of his tools and his tool pouch.’’ Griffin testified
Farley told him ‘‘this is an unfair labor act strike.’’ Griffin
asked what that meant and Farley responded ‘‘I just told
you.’’ According to Griffin, Farley then went to each em-
ployee asking them something and then exited the premises.
Griffin said he ‘‘assumed’’ Farley had quit since he walked
off the job.
Foreman Griffin testified he observed Farley and another
individual the following day, May 14, ‘‘up at the road’’ with
‘‘signs’’ saying the employees were on strike. Griffin drove
to where they were and ‘‘gave Mr. Farley his paycheck and
told him he was no longer needed as a Mathis employee.’’
Farley responded he was still an employee and Foreman
Griffin told him ‘‘he was no longer needed, that the job was
winding down.’’18
Office Manager W. Mathis testified Farley was terminated
because he ‘‘took his tools and walked off the job.’’
Foreman Griffin recalled that two individuals came to the
jobsite seeking employment after the job had been fully
staffed. Griffin allowed the two to fill out applications and
instructed them to place the applications in his truck. Griffin
acknowledged he told the two individuals ‘‘jokingly’’ that
they ‘‘probably’’ were overqualified for work on this par-
ticular job.
Foreman Griffin denied ever (and specifically on May 17)
telephoning Union Business Manager Maurice and/or offer-
ing him a job and later retracting the offer.
F. R. Mathis’ and W. Mathis’ Accounts of Their
Investigative Interviews
Office Manager W. Mathis testified that when the Com-
pany received the unfair labor practice charges herein, ‘‘it
stunned’’ her because she didn’t know the persons named in
the charges except that Farley had been hired as a temporary
employee. She said she didn’t understand what was going on
or what constituted unfair labor acts. W. Mathis testified her
daughter, a recent graduate of Appalachian State University
(Boone, North Carolina) mentioned she had recently taken a
labor law class but had not studied ‘‘dealing with these type
things.’’ R. Mathis suggested to her mother that she call her
labor law professor and see what he had to say about their
situation. R. Mathis’ professor told her to contact the Board
and find out exactly what the allegations were against the
Company and to then investigate and determine what the
facts were. Both W. Mathis and R. Mathis testified they in-
vited the Lowes Superstore site employees, one at a time,
into the Company’s construction trailer and questioned them
263MATHIS ELECTRIC CO.
19 Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964).
20 The Bourne test has been cited with approval by various cir-
cuits. For a partial listing of those circuits, see Teamsters Local 633
v. NLRB, 509 F.2d 490 fn. 15 (D.C. Cir. 1974).
about the allegations. According to W. Mathis, the purpose
was ‘‘to find out if possibly Mike Griffin had mistreated
someone on the job.’’ Each of the interviews were, with the
interviewees’ consent, tape recorded. Both R. Mathis and W.
Mathis denied asking any of the employees about their union
activities or if they were for or against the Union or what
the Union was doing at the Company.
IV. RESOLUTIONS, ANALYSIS, AND CONCLUSIONS
A. Credibility Resolutions
In deciding credibility conflicts between Foreman Griffin
and certain other witnesses, I note Griffin seemed very un-
comfortable, nervous, and ill at ease while testifying. I’m
persuaded Griffin’s above-described demeanor resulted from
his inability or unwillingness to relate facts as he knew them
to be. In addition, I note that for me to credit Griffin’s testi-
mony, I would have to discredit a number of other witnesses.
While truth is not determined by the number of witnesses
testifying to a particular point, it is a fact that dictates careful
scrutiny of the refuted one’s testimony. In order to credit
Foreman Griffin’s testimony related, for example, to whether
he placed a telephone call to Union Business Manager Mau-
rice on May 17, I would not only have to discredit Maurice,
but I would have to disregard the testimony of electrician
James Edwards who said he overheard Maurice’s portion of
the telephone call. In order to credit Foreman Griffin’s testi-
mony that he did not refer to Farley as ‘‘his Union man’’
I would have to discredit the testimony of electrician Adams
that Griffin did make that and other similar comments. Fur-
thermore to credit Foreman Griffin’s testimony, I would have
to discredit Farley who impressed me as a truthful witness.
Farley testified in a calm, somewhat relaxed, and articulate
manner. Farley’s testimony was corroborated in part by that
of union member London with reference to what occurred on
the picket line on May 14. To credit Foreman Griffin’s testi-
mony, I would have to discredit electrician Johnson’s testi-
mony that Griffin asked he and electrician Adams if they
wanted to join Farley on the picket line. I would also have
to discredit Adams’ testimony, which Foreman Griffin spe-
cifically denied, that Griffin said Farley would never work
for him on any of his jobs again and that Lowes’ attorneys
would have all of those on the picket line put in jail. As
these limited examples illustrate, I find the evidence over-
whelming that Foreman Griffin’s testimony cannot be relied
on at any point where it is contradicted by others. Accord-
ingly, I discredit his contradicted testimony.
I do not view W. Mathis’ and R. Mathis’ testimony as
being in conflict with other witnesses except to the extent
that Wanda Mathis asserts Farley was discharged because he
‘‘took his tools and walked off the job.’’ I am persuaded the
record evidence establishes otherwise.
B. Conclusions on the 8(a)(1) Allegations
1. Interrogation and threats of jobsite closure
and discharge
It is alleged that Foreman Griffin unlawfully interrogated
employees on or about April 20, May 13, and May 19, and
that W. Mathis and R. Mathis did so on or about May 25.
In deciding whether the Company’s representatives unlaw-
fully interrogated its employees, I shall be governed by the
Board’s decision in Rossmore House, 269 NLRB 1176
(1984), enfd. sub nom. Hotel & Restaurant Employees v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). In Rossmore House,
the Board held the lawfulness of questioning by employer
agents about union sympathies and activities turns on the
question of whether ‘‘under all the circumstances, the inter-
rogation reasonably tends to restrain or interfere with the em-
ployees in the exercise of rights guaranteed them by the
Act.’’ The Board in Rossmore House noted the Bourne19 test
was helpful in making such an analysis. The Bourne test fac-
tors are as follows:
1. The background, i.e., is there a history of em-
ployer hostility and discrimination?
2. The nature of the information sought, e.g., did the
interrogator appear to be seeking information on which
to base taking action against individual employees?
3. The identity of the questioner, i.e., how high was
he in the Company’s hierarchy?
4. Place and method of interrogation, e.g., was em-
ployee called from work to the boss’s office? Was there
an atmosphere of ‘‘unnatural formality?’’
5. Truthfulness of the reply.20
On April 20, the credited testimony establishes Farley
spoke with certain employees about the Union at the evening
break. On that occasion, Foreman Griffin asked Farley to tell
him all about the Union and asked ‘‘You’re in it, right?’’
Farley explained what he perceived the benefits of unioniza-
tion to be. Foreman Griffin told Farley and the other employ-
ees it ‘‘sounded good’’ but the Company would get rid of
every one of them and asked where they would work then.
With respect to the April 20 encounter, I note first that
Foreman Griffin is the company representative in charge of
the worksite. He was the one who hired and fired employees.
His inquiry as to whether Farley was with or for the Union
was coupled with other unlawful comments. Accordingly, I
find the Company, through Foreman Griffin, unlawfully in-
terrogated Farley on April 20. I also conclude Foreman Grif-
fin’s comments constituted threats to close the jobsite and/or
discharge employees based on union considerations. Such
violates Section 8(a)(1) of the Act and I so find. See, e.g.
Hall Industries, 293 NLRB 785, 790 (1989).
Electrician Adams credibly testified that Foreman Griffin
on May 13 asked him in the blueprint room if Farley had
been talking union and who had signed union authorization
cards. Before Adams could even answer Foreman Griffin
stated ‘‘he didn’t need any of this, that he could fire every-
body on the job and replace them.’’ Again, no legally justifi-
able reason was advanced as to why Foreman Griffin needed
to know if Farley had been talking union or who had signed
authorization cards for the Union. Such constitutes unlawful
interrogation and I so find. This is particularly so when it is
noted that Foreman Griffin also unlawfully threatened to fire
and/or replace anyone involved or associating with the
Union.
When electricians Davis and Smith sought employment at
the jobsite on May 19, Foreman Griffin, after indicating the
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 I note Farley also credibly testified Foreman Griffin told him,
while he was on the picket line, that he was fired and if he put one
foot on the Lowes Superstore site property, he would have him ar-
rested.
Company did not need employees, asked whether they be-
longed to a union. Again, this high-level company represent-
ative advanced no valid justification for his inquiry and his
questioning job applicants about their union sympathies vio-
lates Section 8(a)(1) of the Act and I so find. See, e.g., Cen-
tury Wine & Spirits, 304 NLRB 338 fn. 2 (1991).
Before addressing W. Mathis’ and R. Mathis’ admitted
questioning of employees on or about May 25, it is necessary
to decide whether R. Mathis is an agent of the Company
within the meaning of the Act. Office Manager and Sec-
retary-Treasurer W. Mathis is an admitted supervisor and
agent of the Company. R. Mathis is the daughter of W.
Mathis and Company President M. Mathis. W. Mathis was
the present at all times during which R. Mathis questioned
employees on May 25. W. Mathis never disavowed R.
Mathis’ actual or apparent authority and even acted on her
advice in questioning the employees. Accordingly, the em-
ployees, electrician Johnson in particular, would reasonably
believe that R. Mathis was speaking and acting on behalf of
management. I am persuaded R. Mathis acted with actual or
at the very least apparent authority such as to bind the Com-
pany herein. See, e.g., Great American Products, 312 NLRB
962 (1993).
The Mathises questioned the interviewees (electrician
Johnson in particular) concerning what Foreman Griffin and
electrician Farley had said or done at the jobsite. Johnson’s
answers touched, for example, upon Farley’s speaking about
unfair labor practices at the Company. The Mathises inquired
if Johnson thought Foreman Griffin had treated Farley dif-
ferently because he was a union member. Any answer John-
son may have given to that line of questioning would have
had a tendency to reveal Johnson’s union sentiments. The
only consent Johnson gave the Mathises at the beginning of
the interview was that the interview could be recorded. The
Board has consistently required an employer to advise each
employee it interviews in the investigation of unfair labor
practice allegations or in preparation for Board proceedings
that they have three specific rights. See Johnnie’s Poultry
Co., 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th
Cir. 1965). See also Bill Scott Oldsmobile, 282 NLRB 1073
(1987). The three advisories an employer is required to make
are (1) instruct each employee of the purpose of the ques-
tioning; (2) ensure the employee that no reprisals will be
taken against them; and, (3) obtain the employee’s permis-
sion on a voluntary basis to conduct the interview. These
minimum safeguards were not followed by the Mathises
when they interviewed the employees to ascertain what the
unfair labor practice charges were all about. The Mathises
did not indicate to Johnson, or the others, that they did not
have to participate in the interview if they did not wish to.
Most importantly, the interviewees were given no assurances
against reprisals. The questioning violated Section 8(a)(1) of
the Act, and I so find.
2. Job quotas and threats of more onerous
working conditions
It is alleged that Foreman Griffin implemented job quotas
to discourage employees from engaging in union activities
and threatened employees with more onerous working condi-
tions because of their union activities.
It is clear that in late April, Foreman Griffin questioned
Farley about the number of ‘‘rows of lights’’ he had installed
that day. Foreman Griffin told Farley he had placed elec-
trician Rhodes alongside him (Farley) to see how many rows
he installed daily. Foreman Griffin even told Farley he
should be able to install 20 canopy lights per day. Farley
credibly testified that prior to that time he had never been
asked to do a certain number of lights per day or to meet
any particular quotas. Farley even protested that he thought
he had an understanding with Foreman Griffin that it would
not be a problem by his being for the Union. The Company
offered no justification or explanation for its above-noted ac-
tions toward Farley. Accordingly, I conclude, as alleged in
the complaint, that the Company violated Section 8(a)(1) of
the Act by implementing job quotas for Farley in order to
discourage him from activities on behalf of the Union. I also
find the Company threatened its employees with more oner-
ous working conditions when Foreman Griffin, while speak-
ing with electrician Adams, referred to Farley as ‘‘Union,’’
‘‘his bull,’’ and ‘‘his Union man.’’ These comments taken in
conjunction with Griffin’s further statement to Adams that he
had assigned certain work to Farley and ‘‘had Union sweat-
ing like a bull’’ could reasonably cause Adams to infer and
conclude that if he supported the Union, he would be sub-
jected to like treatment by Foreman Griffin.
3. Threats of unspecified reprisals and arrest
Electrician Adams credibly testified that Foreman Griffin
stated in a loud and angry tone after Farley and others had
started picketing on May 14 that if anyone else wanted to
go out and join them they were welcome but that Lowes
would bring in their attorneys and have all of them put in
jail.21 Griffin’s comment constitutes an unlawful threat to
have employees arrested to discourage them from union ac-
tivities and I so find.
I am persuaded the evidence fails to establish a threat of
unspecified reprisals if employees engaged in union activi-
ties. Accordingly, I shall dismiss that portion of the com-
plaint.
C. Analysis of Company Motivation
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), the Board set forth its causation test for
cases alleging violations of the Act that turn on employer
motive. First, the Government must make a prima facie
showing sufficient to support the inference that protected
conduct was a motivating factor in the employer’s decision.
Once this is established, the burden shifts to the employer to
demonstrate that it would have taken the same action even
in the absence of the protected conduct. An employer can not
simply present a legitimate reason for its actions but must
persuade by a preponderance of the evidence that the same
action would have taken place even in the absence of pro-
tected activity. The classic elements commonly required to
make out a prima facie case of union discriminatory motiva-
tion under Section 8(a)(3) of the Act are union activity, em-
ployer knowledge, timing, and employer animus.
265MATHIS ELECTRIC CO.
22 I reject Outside Foreman Sheets’ testimony that Farley ‘‘acted’’
like he was ‘‘tickled to death’’ to be working outside the building.
23 Brooks was not named in the complaint nor was any relief
sought by the Government on his behalf.
24 I have discredited Foreman Griffin’s testimony that he never
made any offer of employment to Maurice (and/or Brooks) and as
such have rejected the Company’s contention it would not have of-
fered employment to anyone at the time in question because it was
winding down its Lowes Superstore site project.
D. The More Onerous Working Conditions
It is undisputed that Farley was a strong union supporter
and that the Company, Foreman Griffin in particular, knew
of Farley’s union sentiments. For example, Farley left his
union book in the Company’s construction site trailer for 2
weeks so ‘‘everybody could see it.’’ Farley spoke with Fore-
man Griffin about the Union and Griffin questioned Farley
and others about the Union and Farley’s activities on behalf
of the Union. Foreman Griffin even referred to Farley as
‘‘his bull’’ and ‘‘his union man.’’ Shortly after the Company
learned of Farley’s union sentiments, Foreman Griffin, for
the first time on May 6, and thereafter on May 7 and 8 as-
signed Farley outside work clearing ditches and tamping soil
onto conduit. This type work was normally performed by ap-
prentices and laborers. Outside Foreman Sheets readily ac-
knowledged the work was ‘‘hard, physical work’’ with
‘‘nothing easy about it.’’ Foreman Griffin’s motivation for
assigning Farley the outside work is revealed, at least in part,
by his comments to electrician Adams. Adams credibly testi-
fied that when Farley was assigned to clean ditches and tamp
soil in May, Foreman Griffin told him concerning the assign-
ment ‘‘he had union sweating like a bull.’’22 The Company
advanced no valid or justifiable reason and/or explanation for
its selection of Farley to perform this outside work that was
normally assigned to apprentices or laborers. Stated dif-
ferently, the Company failed to demonstrate it would have
assigned electrician Farley the outside work in question even
in the absence of any union activities on his part. Accord-
ingly, I find, as alleged in the complaint, the Company as-
signed Farley more onerous work on May 6, 7, and 8 be-
cause of his union activities and as such violated Section
8(a)(3) and (1) of the Act.
E. Farley’s May 14 Discharge
Examining the instant facts in light of the Wright Line
principles outlined earlier, I am persuaded the Government
established a prima facie case related to Farley’s discharge.
As noted above, Farley was the moving force for the Union
at the Company. As also noted above, the Company was
fully aware of Farley’s union sentiments. The Company,
through Foreman Griffin, subjected Farley to various unfair
labor practices by questioning him about the Union and
threatening that the jobsite would be closed and the employ-
ees discharged as a result of their union activities. As set
forth above, the Company gave Farley more onerous work
assignments because of his support for the Union. Farley, in
response to actions taken against him and other employees,
engaged in a strike to protest the Company’s unlawful con-
duct. Farley was discharged for participating in that strike.
Not only was Farley discharged for engaging in the strike,
he was, in violation of the Act, threatened with arrest for
doing so. I am fully persuaded the Company failed to dem-
onstrate it would have discharged Farley in the absence of
any protected conduct on his part. First, there is no showing
that Farley was not a qualified electrician performing satis-
factory work. Second, this was ‘‘a real rush project’’ that has
not been completed at the time Farley was discharged. Third,
the Company knew Farley had not voluntarily quit his em-
ployment but rather was engaging in a strike. Simply stated,
Farley was discharged immediately after he commenced to
engage in a strike to protest the Company’s unfair labor
practices. I reject the Company’s contention that Farley, by
taking his tools and walking off the job, voluntarily quit. I
find the Company violated Section 8(a)(3) and (1) of the Act
when on May 14, it discharged its employee Farley.
F. The Company’s Refusal to Hire Maurice
It is undisputed that Union Business Manager Maurice and
another electrician (Brooks) sought employment with the
Company at the jobsite on May 13. The two, at their insist-
ence, were allowed to fill out applications for employment
even though it was made known to them the Company did
not need additional employees at that time. It is likewise un-
disputed that Maurice and Brooks established their qualifica-
tions as electricians to the satisfaction of the Company. As
a matter of fact, Foreman Griffin told the two they were
overqualified for the work at the Lowes Superstore site. The
credited testimony establishes that on May 17, Foreman Grif-
fin telephoned Maurice and offered him employment com-
mencing on May 18, and only withdrew the offer and in-
structed Maurice to forget all about the call after he became
fully aware that Maurice was affiliated with the Union and
was discharged employee Farley’s union representative.
The Company failed to rebut the Government’s prima
facie case by showing it would not have hired Maurice even
in the absence of any protected conduct.23 The Company’s
contention that Union Business Manager Maurice was not a
bona fide employee applicant does not withstand close scru-
tiny. First, Maurice was a qualified electrician as acknowl-
edged by Foreman Griffin. Second, Maurice told Foreman
Griffin he would perform whatever work the Company as-
signed him. The Board has made it clear that the term em-
ployee (or applicant for employment) includes paid union or-
ganizers. See, e.g., Sunland Construction Co., 309 NLRB
1224 (1992). The Board in Sunland Construction went to
great lengths to outline why an employer, such as the Com-
pany herein, may not refuse to hire qualified applicants sim-
ply because the applicants are paid full-time union orga-
nizers. The Board noted only two requirements, which are
met herein, for an applicant to qualify as an employee. An
applicant must be qualified for the position being filled and
agree to perform assigned work for the wages offered. The
Company’s refusal to hire Union Business Manager Maurice,
a qualified electrician, because he was an officer of the
Union and/or because he was an employee’s union represent-
ative violates Section 8(a)(3) and (1) of the Act, and I so
find.24
CONCLUSIONS OF LAW
1. Mathis Electric Co., Inc. is an employer within the
meaning of Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621.
26 For the reasons outlined with respect to Farley, I shall not rec-
ommend the Company be ordered to immediately hire Maurice but
rather direct that upon application he be considered for employment
in a nondiscriminatory manner.
27 If no exceptions are filed as provided in 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.
2. Local Union 342, of the International Brotherhood of
Electrical Workers, AFL–CIO, affiliated with International
Brotherhood of Electrical Workers, AFL–CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By engaging in the following conduct, the Company
violated Section 8(a)(1) of the Act.
(a) Interrogating its employees concerning their union ac-
tivities,
(b) Threatening its employees with jobsite closure because
of their union activities,
(c) Threatening its employees with discharge because of
their union activities,
(d) Threatening its employees with more onerous working
conditions because of their union activities,
(e) Threatening its employees with arrest to discourage
their union activities, and
(f) Implementing job quotas to discourage its employees
from engaging in union activities.
4. By assigning more onerous working conditions to its
employee Kim Farley on May 6, 7, and 8, 1993, and by
thereafter discharging him on May 14, 1993, because of his
union, concerted, and protected activities, the Company en-
gaged in unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act.
5. By failing and refusing to hire Gary Maurice on May
17, 1993, because of his union, concerted, and protected ac-
tivities, the Company engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found the Company has engaged in violations of
Section 8(a)(1) and (3) of the Act, I shall recommend it be
ordered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found that the Company discriminatorily dis-
charged employee Kim Farley, I shall recommend he be
made whole for any loss of earnings he may have suffered
by reason of the discrimination against him, with interest.
Backpay shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).25 The Government, citing Dean General Con-
tractors, 285 NLRB 573 (1987), seeks to have Farley rein-
stated as part of any remedy herein. The Board in Dean Gen-
eral Contractors applied its traditional backpay and reinstate-
ment remedy in a construction industry case. The Board rec-
ognized that employment patterns in the construction indus-
try have unique characteristics and jobs are frequently of
short duration but added that these general characteristics
standing alone did not justify a departure from its traditional
make-whole remedy prior to compliance. The Board’s hold-
ing in Dean General Contractors does not preclude a finding
at the trial stage of the proceedings that an employer would
necessarily have severed all employment ties with an em-
ployee if the evidence, as is the case herein, warrants such
a conclusion. I am persuaded reinstatement should not be or-
dered in the instant case because the evidence establishes
employees were, and are, hired on a temporary basis at each
jobsite with new applications required at each jobsite. In that
regard, I note the personnel files for the electricians at the
Company’s Lowes Superstore site disclose all were tem-
porary employees. Company Secretary/Treasurer W. Mathis
testified all were temporary employees. Foreman Griffin tes-
tified, without contradiction, that he staffed this particular
jobsite in keeping with the Company’s normal practice by
hiring employees on a temporary basis. The record reflects
electrician Johnson was required to fill out a new application
for employment at the jobsite in question even though he had
made application and had worked for the Company sometime
earlier (June 1992) at a different jobsite. Inasmuch as the
evidence establishes the Company requires new applications
at each jobsite, I shall not recommend that Farley be offered
immediate and full reinstatement. I shall, rather, direct that
the Company, upon application at any particular jobsite, ac-
cord Farley consideration for employment in a nondiscrim-
inatory manner. The backpay period for Farley shall run
from his unconditional offer to return to work (4:30 p.m.
May 14, 1993) until the completion of the Lowes Superstore
site project. I also recommend the Company be ordered to
expunge from its files any reference to Farley’s discharge
and notify him in writing this has been done and that evi-
dence of the unlawful actions will not be used as a basis for
future personnel actions against him. Having found that the
Company unlawfully refused to hire Gary Maurice on May
17, 1993, I shall recommend the Company be ordered to
make him whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him with inter-
est as outlined above.26 The backpay period for Maurice
shall run from May 17, 1993, until the Lowes Superstore site
project was completed. Finally, I recommend the Company
be ordered to post an appropriate notice to employees, copies
of which are attached hereto as ‘‘Appendix’’ for a period of
60 days in order that employees may be apprised of their
rights under the Act and the Company’s obligation to remedy
its unfair labor practices.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended27
ORDER
The Company, Mathis Electric Co., Inc., North
Wilkesboro, North Carolina, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their union ac-
tivities.
(b) Threatening its employees with jobsite closure because
of their union activities.
(c) Threatening its employees with discharge because of
their union activities.
267MATHIS ELECTRIC CO.
28 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.’’
(d) Implementing job quotas to discourage its employees
from engaging in union activities.
(e) Threatening employees with more onerous working
conditions because of their union activities.
(f) Threatening its employees with arrest to discourage
their union activities.
(g) Assigning more onerous working conditions to its em-
ployees because of their union activities.
(h) Discharging or otherwise discriminating against its em-
ployees because of their membership in or activities on be-
half of the Union or because they engaged in other protected
concerted activities.
(i) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Kim Farley and Gary Maurice whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the
remedy section of this decision, and expunge from Farley’s
work record any reference to his discharge.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, time cards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(c) Post at all of its jobsites in North Carolina copies of
the attached notice marked ‘‘Appendix.’’28 Copies of the no-
tice, on forms provided by the Regional Director for Region
11, after being signed by the Company’s authorized rep-
resentative, shall be posted by the Company immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Company to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 11 in writing
within 20 days from the date of this Order what steps the
Company has taken to comply.
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges violations of the Act not
specifically found.
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 and protection
To chose not to engage in any of these protected
concerted activities.
WE WILL NOT interrogate our employees concerning their
union activities.
WE WILL NOT threaten our employees with jobsite closure
because of their union activities.
WE WILL NOT threaten our employees with discharge be-
cause of their union activities.
WE WILL NOT implement job quotas to discourage our em-
ployees from engaging in union activities.
WE WILL NOT threaten our employees with more onerous
working conditions because of their union activities.
WE WILL NOT threaten our employees with arrest to dis-
courage their union activities.
WE WILL NOT discharge employees or assign them more
onerous work because of their union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL make Kim Farley whole for any loss of earnings
and other benefits suffered as a result of our having unlaw-
fully discharged him on May 14, 1993, with interest.
WE WILL make Gary Maurice whole for any loss of earn-
ings and other benefits suffered as a result of our unlawful
refusal to hire him on May 17, 1993, with interest.
WE WILL notify Kim Farley, in writing, that we have re-
moved from our files any reference to his discharge and that
the discharge will not be used against him in any way.
MATHIS ELECTRIC CO., INC.