Mavka

National Labor Relations Board - Board Decisions

Mar 8, 1999

327 N.L.R.B. 803 (N.L.R.B. 1999)

MAUKA, INC. 803
Mauka, Inc. and Local Union No. 673 of the Interna-
tional Brotherhood of Electrical Workers, AFL–
CIO. Cases 8–CA–27263, 8–CA–27296, and 8–
CA–27434
March 8, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On March 13, 1996, Administrative Law Judge Rich-
ard A. Scully issued the attached decision. The Respon-
dent and the General Counsel filed exceptions, support-
ing briefs, answering briefs, and reply briefs.
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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3 as
modified below and to adopt the recommended Order as
modified and set forth in full below.
The judge found that employee Cregg Law was not an
unfair labor practice striker and, therefore, was not enti-
tled to reinstatement by the Respondent upon his uncon-
ditional offer to return to work. We disagree.

1 The Respondent has moved to correct the transcript of the hearing
in certain respects. We find that the Respondent’s proposed corrections
reflect obvious inadvertent errors in transcription of the testimony in
question, and we grant the motion.
The Respondent has excepted to the judge’s failure to grant its mo-
tion to correct the record by including the text of a tape recording
played by its counsel during the hearing solely for the purpose of re-
freshing witness Cregg Law’s recollection. We affirm the judge’s
ruling for the reasons stated by him, and we grant the General Coun-
sel’s motion to strike those portions of the Respondent’s brief that rely
on the excluded evidence.
No exceptions were filed to the judge’s finding that the Respon-
dent’s vice president, Paul Boros’, statement to Law during Law’s
employment interview that Boros did not want to be unionized did not
violate Sec. 8(a)(1).
2 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
3 In adopting the judge’s finding that the Respondent did not violate
the Act when it failed to recall Ronald Sabatini in March 1995, Mem-
ber Liebman finds that, even assuming that the General Counsel did
establish a prima facie case that the Respondent’s failure to recall Sa-
batini was unlawfully motivated, the Respondent has satisfied its bur-
den under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 800
(1st Cir. 1981), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983), to prove that it would not have recalled
Sabatini even in the absence of his union activities.
In fn. 5 of his decision, the judge found that the Respondent has not
proved that Law’s picketing constituted a violation of Sec. 8(b)(4)
because it did not show that the picketing was “solely” for the purpose
of appealing to employees of secondary employers. We note that under
Board law it must be shown only that appealing to employees of secon-
dary employers is “an” object of picketing for a violation to be estab-
lished. E.g., NLRB v. Teamster Local 753, 335 F.2d 326, 369 (7th Cir.
1964).
After work on April 5, 1995,4 employees Cregg Law
and Keith Jordan, wearing union T-shirts and buttons,
approached the Respondent’s vice-president, Paul Boros,
and asked for a raise that would include union wages and
benefits. Boros told the employees that he would not
speak to them about wages and benefits as a group, but
would talk to them individually in about 2 weeks. Ac-
cording to Jordan’s credited testimony, Boros also told
the employees “don’t ever wear [the Union T-shirts and
buttons] in my shop again, or on our property, or on our
jobs.” We agree with the judge that Boros statements
violated Section 8(a)(1).5
After this encounter, Jordan and Law made signs
which stated that the Respondent refused to pay union
wages and benefits, and the two employees picketed on
nonworking time with these signs at the jobsites where
they were assigned for the following 2 days, April 6 and
7. Both employees were wearing union T-shirts on the
job and while they were picketing. Boros removed both
Law and Jordan from the jobsites on April 6 because of
alleged requests from the customers at whose jobsites
Jordan and Law were picketing. We agree with the
judge’s finding that the Respondent’s removal of Jordan
and Law from the jobsites where they were working vio-
lated Section 8(a)(3) and (1).
The Respondent instructed both employees to report to
the shop on April 7. At lunchtime, both employees pick-
eted outside the shop with the signs stating that the Re-
4 All dates are in 1995 unless otherwise specified.
5 The Respondent has excepted, inter alia, to the judge’s finding that
it violated Sec. 8(a)(1) by refusing to meet with Law and Jordan jointly
to discuss their request for union wages and benefits. In its brief, the
Respondent argues that an “employer has no obligation to meet with
employees in a group to discuss their wages.” Assuming arguendo that
the Respondent’s statement of the law is correct, if “an employer [acts]
with the purpose of restricting or preventing employees form engaging
in protected activity,’’ a violation of Sec. 8(a)(1) can still be found.
Tutalin Electric, 319 NLRB 1237 (1995). That is the situation here. As
set forth above, the judge found that in the same conversation in which
Boros refused to meet with Law and Jordan, Boros unlawfully threat-
ened employees with job loss when he told them that if they were to
vote for a union, the Respondent would become a general contractor
and “no one would work.” Other unfair labor practices committed by
the Respondent during the organizational campaign include coercively
interrogating employees, giving employees the impression of surveil-
lance, threatening employees with physical harm, removing employees
from their jobsites, reassigning employees to other work, causing em-
ployees to lose wages, all because of the employees’ union or other
protected activities. In this context, we find that the Respondent’s
refusal to meet with Law and Jordan did not constitute the exercise of a
legal right reserved to it under the NLRA, but that it was one more
effort to discourage employee participation in union and other protected
activities, and that it would foreseeably have that effect.
Member Hurtgen does not agree that the Respondent violated the
Act by refusing to meet jointly with employees Law and Jordan.
Member Hurtgen’s colleagues do not quarrel with the proposition that
the Respondent had no obligation to meet jointly with these two em-
ployees, And, the recitation of the Respondent’s other unfair labor
practices does not, by itself, establish unlawful motive as to the other-
wise unlawful refusal to meet. Finally, the fact that the Respondent has
committed other unfair labor practices does not take away the Respon-
dent’s right to refuse to meet jointly.
327 NLRB No. 148
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
spondent refused to pay union wages and benefits.
While they were picketing, Boros came out of the shop
and photographed them. Law went back into the shop
and told Boros that he was going on an unfair labor prac-
tice strike to protest the unlawful discipline of himself
and Jordan and the alleged unlawful discharge of fellow
employee Ronald Sabatini.
Law left the shop and went to the Union’s hall where
he discussed with Union Representative David Thomas
what had occurred and his decision to go on strike. The
following Monday, April 10, Law and Thomas picketed
outside the shop carrying signs that read “Unfair Labor
Practice Strike Against Mauka Electric.” Shortly after
the picketing began, Boros appeared, said to Law, “I’m
going to cut your head off for this,” and photographed
him.6
On April 13, Law hand delivered to Boros a written
notice making an unconditional offer to return to work.
Boros told Law to call between 4 and 5 p.m. that after-
noon, because he might have some work for him then.
When Law called that afternoon, Boros told Law that he
had no work for him and that he was laying off employ-
ees. Law heard nothing further from the Respondent
until he received a letter from Boros, dated May 15, stat-
ing that it considered Law to have abandoned his job and
that he was being removed from the employee list.
The judge found that Law was not an unfair labor
practice striker on the grounds that his strike was not
concerted because it was not “engaged in with or on the
authority of other employees,” but rather was engaged in
“solely by and on behalf of the employee himself.” The
judge noted that no other employee joined Law in strik-
ing, and that the record failed to establish that he dis-
cussed such a strike with or sought to enlist the support
of any fellow employee, including Jordan, with whom he
had just been picketing outside the shop. The judge fur-
ther concluded that because Law was not an unfair labor
practice striker, the Respondent was under no continuing
obligation to contact Law and offer him employment.
Contrary to the judge, we find that Law was an unfair
labor practice striker and that he was entitled to immedi-
ate reinstatement upon his unconditional offer to return
to work. We conclude that Law’s strike was a direct
outgrowth of his activities on behalf of the Union and
was engaged in to protest the Respondent’s unfair labor
practices committed in the context of the Union’s orga-
nizing campaign.
The judge found, and we agree, that it was unlawful
for the Respondent to prohibit employees from wearing
union insignia and to discipline them for doing so.
Law’s picket signs and his statement to Boros that he
was protesting this and other alleged unfair labor prac-
tices leave no question as to Law’s motivation for the
strike. A strike that is motivated, even in part, by an em-
ployer’s unfair labor practices is an unfair labor practice
strike.7

6 The judge found that the Respondent violated Sec. 8(a)(1) on both
April 7 and 10 by photographing employees engaged in protected ac-
tivities. We agree with the judge that the April 10 incident was clearly
coercive and unlawful inasmuch as the photographing was accompa-
nied by a threat of physical harm. We find it unnecessary to pass on the
legality of the April 7 incident because the finding of an additional
violation would be cumulative and would not affect the remedy.
We find that Law’s protest of the Respondent’s unlaw-
ful discipline was not a case of one employee engaging
in conduct for only his own benefit. Rather, Law’s ac-
tions must be viewed in the context of employees at-
tempting to organize a union, approaching the employer
for union wages and benefits, picketing the employer for
union wages and benefits, and ultimately striking the
employer because of the unfair labor practices perpe-
trated against those employees because they wanted to
organize.8
In finding that Law’s strike was unprotected, the judge
relied on DeMuth Electric, 316 NLRB 935 (1995), in
which the Board adopted an administrative law judge’s
decision finding that a single employee’s departure from
the job did not amount to a protected strike and that the
respondent’s failure to reinstate him did not violate the
Act. Unlike the situation herein, the employee in De-
Muth, supra, did not suggest that he was protesting unfair
labor practices against employees, he never at any time
solicited the support of any fellow employee, and he
acted against the wishes of the union for which he was
organizing. In contrast, here Law originally picketed
with Jordan for union wages and benefits as part of the
organizing campaign, made it clear he was protesting the
treatment of other employees as well as himself, and en-
gaged in the strike with the support of the Union for
which he was organizing. In fact, Law discussed an un-
fair labor practice strike with Union Representative
Thomas prior to informing Boros of his intention to en-
gage in an unfair labor practice strike, and Thomas pick-
eted with Law, joining him in carrying signs protesting
the unfair labor practices which were committed in the
course of the organizing campaign. In these circum-
stances, we find that Law’s strike was part and parcel of
his union activity.
We find that Law made an unconditional offer to re-
turn to work when he hand delivered a note to that effect
to Boros on April 13. We further find that he was enti-
tled to immediate reinstatement by the Respondent, and
7 C-Line Express, 292 NLRB 638 (1989); Tall Pines Inn, 268 NLRB
1392 (1984). Accord: Northern Wire Corp. v. NLRB, 887 F.2d 1313
(7th Cir. 1989).
8 Because Law was engaged in union activity, it is irrelevant that no
other employee joined him in striking. Carpenters Local 925: 279
NLRB 1051, 1059 fn. 40 (1986) (citing the Supreme Court’s decision
in NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984): accord:
Manno Electric, 321 NLRB 278, 281 (1996) (“the Board holds that an
employee acting alone to form, join, or assist a labor organization is
nevertheless protected by Section 7 of the Act”).

MAUKA, INC. 805
that the Respondent’s failure to reinstate him violated
Section 8(a)(3) and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 3(e):
“(e) Refusing to meet with employees collectively to
discuss their request for union wages and benefits in or-
der to discourage their participation in union and other
protected activities.”
2. Insert the following paragraphs 5 and 6, and re-
number the present paragraphs 5 and 6 as paragraphs 7
and 8.
“5. Employee Cregg Law’s April 10, 1995 strike was
motivated by the Respondent’s unfair labor practices and
was, therefore, an unfair labor practice strike.
“6. By failing to immediately reinstate unfair labor
practice striker Cregg Law upon his April 13, 1995 un-
conditional offer to return to work, the Respondent has
violated Section 8(a)(3) and (1) of the Act.”
AMENDED REMEDY
Having found that the Respondent unlawfully failed
and refused to reinstate unfair labor practice striker
Cregg Law upon his April 13, 1995 unconditional offer
to return to work, we shall order that the Respondent
offer him immediate and full reinstatement to his former
position or, if that position no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges, discharging, if nec-
essary, any replacements hired after April 10, 1995. The
Respondent shall also be required to make Law whole
for any loss of earnings and other benefits that he may
have suffered by reason of the Respondent’s refusal to
reinstate him, from the date of his offer to return to work.
Such amounts shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest to be computed as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).9
ORDER
The National Labor Relations Board orders that the
Respondent, Mauka, Inc., Mentor, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Local Union No. 673
of the International Brotherhood of Electrical Workers,
AFL–CIO, or any other labor organization by failing and
refusing to immediately reinstate employees upon their
unconditional offer to return to work after they have en-
gaged in a strike to protest the Respondent’s unfair labor
practices.
(b) Coercively interrogating employees concerning
their union or other protected activities.

9 In addition, we shall modify the judge’s recommended Order in ac-
cordance with our recent decision in Indian Hills Care Center, 321
NLRB 144 (1996), and Excel Container, 325 NLRB 17 (1997).
(c) Giving employees the impression that their union
or other protected activities are under surveillance.
(d) Threatening employees with loss of employment if
they select the Union or any other labor organization as
their collective-bargaining representative.
(e) Prohibiting employees from wearing shirts display-
ing the Union’s logo while working or on its property.
(f) Refusing to meet with employees collectively to
discuss their request for union wages and benefits in or-
der to discourage their participation in union and other
protected activities.
(g) Coercively photographing employees while they
are engaged in union or other protected activities.
(h) Threatening employees with physical harm for en-
gaging in picketing outside its facility.
(i) Removing employees from their jobsites, reassign-
ing them to other work, and causing them to lose wages
because they engaged in union or other protected activi-
ties.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole Cregg Law and Keith Jordan for any
loss of wages suffered as a result of the discrimination
against them on April 6 and 7, 1995, plus interest com-
puted in the manner set forth in the remedy section of
this decision.
(b) Within 14 days from the date of this Order, offer
Cregg Law full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed, discharging if neces-
sary, replacement employees hired after April 10, 1995.
(c) Make Cregg Law whole for any loss of earnings
and other benefits suffered as a result of the Respon-
dent’s failure to reinstate him, in the manner set forth in
the remedy section of this decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline of
Cregg Law and Keith Jordan, and the unlawful refusal to
reinstate Cregg Law, and within 3 days thereafter notify
them in writing that this has been done and that the dis-
cipline and the refusal to reinstate will not be used
against them in any way.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Mentor, Ohio facility copies of the attached notice

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806
marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since December 21, 1994.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found herein.

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 discourage membership in Local Un-
ion No. 673 of the International Brotherhood of Electri-
cal Workers, AFL–CIO, or any other labor organization
by failing and refusing to immediately reinstate employ-
ees upon their unconditional offer to return to work after
they have engaged in a strike to protest our unfair labor
practices.
WE WILL NOT coercively interrogate employees con-
cerning their union or other protected activities.

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT give employees the impression that
their union or other protected activities are under surveil-
lance.
WE WILL NOT threaten employees with loss of em-
ployment if they select the Union or any other labor or-
ganization as their collective-bargaining representative.
WE WILL NOT prohibit employees from wearing
shirts displaying the Union’s logo while working or on
our property.
WE WILL NOT refuse to meet with employees collec-
tively to discuss their request for union wages and bene-
fits in order to discourage their participation in union and
other protected activities.
WE WILL NOT coercively photograph employees
while they are engaged in union or other protected activi-
ties.
WE WILL NOT threaten employees with physical
harm for engaging in picketing outside our facility.
WE WILL NOT remove employees from their jobsites,
reassign them to other work, and cause them to lose
wages because they engage in union or other protected
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 whole Cregg Law and Keith Jordan
for any lost wages suffered by reason of our discrimina-
tion against them for having engaged in protected activi-
ties, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer Cregg Law full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights or privileges previously enjoyed, discharg-
ing, if necessary, any replacement employees hired after
April 10, 1995.
WE WILL make Cregg Law whole for any loss of
earnings and other benefits resulting from our refusal to
reinstate him, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline of Cregg Law and Keith Jordan, and the
unlawful refusal to reinstate Cregg Law, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the discipline and the refusal to
reinstate will not be used against them in any way.

MAUKA, INC.

Paul C. Lund, Esq., for the General Counsel.
Domenic Bellisario, Esq., of Pittsburgh, Pennsylvania, for the
Respondent.
Joyce Goldstein, Esq., of Cleveland, Ohio, for the Charging
Party.

MAUKA, INC. 807
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. Upon
charges1 filed by Local Union No. 673 of the International
Brotherhood of Electrical Workers, AFL–CIO (the Union), the
Regional Director for Region 8 of the National Labor Relations
Board (the Board) issued a consolidated complaint on June 30,
1995, alleging that Mauka, Inc.2 (the Respondent) committed
certain violations of Section 8(a)(1) and (3) of the National
Relations Act (the Act). The Respondent filed a timely answer
denying that it had committed any violation of the Act.
A hearing was held in Cleveland, Ohio, on September 6 and
7, 1995, 3 at which all parties were given a full opportunity to
participate, to examine and cross-examine witnesses, and to
present other evidence and argument. Briefs submitted on be-
half of the General Counsel and the Respondent have been
given due consideration.4 Upon the entire record and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
I.THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was an Ohio corpora-
tion with its principal office and place of business in Mentor,
Ohio, engaged in the electrical contracting business. Annually,
in the course and conduct of its business operations, the Re-
spondent purchases and receives goods valued in excess of
$50,000 directly from points located outside the State of Ohio.
The Respondent admits, and I find, that at all times material it
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times material
the Union was a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sufficiency of the Charges
At the opening of the hearing, the Respondent moved to
dismiss certain of the complaint allegations on the grounds that
they do not relate to any charge filed in this case. I deferred
ruling on the motion pending receipt of the parties’ post-
hearing briefs. Counsel for the General Counsel contends that
the filed charges are broad enough to encompass the complaint
allegations and that the Employer has been put on notice as to
all of the matters alleged in the complaint. The function of a
charge is not to give the employer notice of a specific claim
against it, but to draw “the Board’s attention to a cause for eco-
nomic disturbance.’’ Redd-I, Inc., 290 NLRB 1115, 1117 fn. 12
(1988). In NLRB v. Fant Milling Co., 360 U.S. 301, 307–308
(1959), the Supreme Court stated that the Board’s inquiry is not
confined “to the specific matters alleged in the charge’’ and
that

1 The charge in Case 8–CA–27263 was filed on March 31, 1995, and
an amended charge was filed on May 15, 1995. The charge in Case 8–
CA–27296 was filed on April 10, 1995, and that in Case 8–CA–27434
on May 26, 1995.
2 At the hearing it was pointed out that the correct name of the Re-
spondent is Mauka, Inc. not Mauka Electric, Inc. The caption has been
amended to reflect this.
3 All dates are in 1995 unless otherwise indicated.
4 The Respondent has filed a motion to correct the hearing transcript
by including the text of one of two tape recordings its counsel played
during the hearing. The tape was played solely for the purpose of re-
freshing a witness’ recollection. It was not marked as an exhibit or
authenticated and counsel made no attempt to place the contents of the
recording in the record at the hearing. The motion to correct the record
is denied.

Once its jurisdiction is invoked the Board must be left free to
make full inquiry under its broad investigatory power in order
properly to discharge the duty of protecting public rights
which Congress has imposed upon it. There can be no justifi-
cation for confining such an inquiry to the precise particulari-
zations of a charge.

In Nickles Bakery of Indiana, 296 NLRB 927, 928 (1989), the
Board ruled that its general requirement that “the complaint
allegation be related to and arise out of the same situation as the
conduct alleged to be unlawful in the underlying charge, al-
though it need not be limited to the specific violations alleged
in the charge’’ would also apply to allegations involving Sec-
tion 8(a)(1) of the Act and that such determinations would be
made by applying the standards outlined in Redd-I, Inc., supra:

First, the Board will look at whether the . . . allegations in-
volve the same legal theory as the allegations in the pending
timely charge. Second, the Board will look at whether the . . .
allegations arise from the same factual circumstances or se-
quence as the pending timely charge. Finally, the Board may
look at whether a respondent would raise similar defenses to
both allegations. [Footnotes ommitted.]

The Respondent raises this issue with respect to complaint
paragraph 6(A) concerning an alleged unlawful interrogation
and impression of surveillance on December 20, 1994. The
charge in Case 8–CA–27263 alleges that on or about December
22, 1994, the Employer “threatened to go out of business if its
employees exercised their protected rights to organize,’’ but
does not refer to any incident on December 20. Applying the
Redd-I standard, I find that the allegations in paragraph 6(A)
are closely related to and arise from the same sequence of
events as the allegation in the charge alleged to have occurred
two days later. Both involve alleged attempts by the Employer
to coerce employees and interfere with their attempts to secure
union representation. In connection with paragraphs 6(A) and
(B) concerning the alleged incident on December 22, the Re-
spondent also contends that the portion of the charge in Case 8–
CA–27263 relating to that incident was withdrawn by the Un-
ion because it was not included in the amended charge it filed
in that case. I find there is no evidence that the Union sought to
withdraw that portion of the charge or that the Regional Direc-
tor approved its withdrawal or notified the parties to that effect.
Rather, it appears that the language concerning the December
22 incident was simply inadvertantly omitted when the
amended charge was filed. I also find that the incident alleged
to have occurred on December 20, involving employee Ronald
Sabatini, is directly related to and arises from the same factual
circumstances underlying the charge and amended charge in
Case 8–CA–27263, that Sabatini was unlawfully discharged by
the Employer.
The allegation in paragraph 6(C) concerning an alleged
statement by the Employer on March 17, 1995, that expressed
opposition to union representation involves conduct similar to
that charged to have occurred on December 22. The allegations
in paragraphs 6(D) and (E) concern alleged coercive statements

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808
by the Employer to employees on April 5, 1995. Both 8(a)(1)
allegations involve Employer conduct arising from the attempts
of employees Cregg Law and Keith Jordan to get it to recognize
the Union as their bargaining representative. That conduct was
the subject of the charge in Case 8–CA–27296, alleging viola-
tions of Section 8(a)(3) and (1) on or about April 7, 1995, in-
cluding that Law and Jordan were “disciplined’’ as a result of
their activities. I find there is a sufficient factual nexus between
these allegations and those in the charge. I also find there is
such a nexus between the allegation in paragraph 6(H) and
those in the charges in Cases 8–CA–27296 and 8–CA–27434.
The allegation in paragraph 7(B) concerning the termination
of Sabatini in March 1995 is directly related to in the charge in
Case 8–CA–27263 which alleges that the termination occurred
in January 1995. Although there is a difference in the actual
date of termination, the nature of the alleged violation is the
same and arises from the same factual circumstances referenced
in the charge. The allegations in Paragraphs 7(C)–(E) concern-
ing the Employer’s actions with respect to Law and Jordan on
April 6 and 7, 1995, arise from the same factual circumstances
raised in the charge in Case 8–CA–27296 discussed above. I
find that there is a sufficient factual nexus between all of the
complaint allegations and the underlying charges and that the
Respondent’s motion to dismiss portions of the complaint
should be denied.
B. The 8(a)(1) Allegations
1. Incidents on December 21 and 22, 1994
Ronald Sabatini was hired by the Respondent as an electri-
cian in April 1994. He testified that during the early 1970s he
had belonged to the same union local as Andy Parker who is
employed by the Respondent in a supervisory position. During
a conversation in June 1994, Sabatini mentioned to Parker that
there was a union election being held at an employer for whom
he had previously worked. Later that same month, Parker told
Sabatini that Company Vice President Paul Boros Jr. was wor-
ried that Sabatini going to try and organize the shop. Sabatini
told Parker that he was not. In October 1994 Sabatini, who has
a diabetic condition and said he was interested in joining the
Union in order to get health benefits, spoke with Union Repre-
sentative David Thomas about organizing the Respondent’s
employees. Thereafter, the Union sent a letter, dated November
18, 1994, to the Respondent asking for the opportunity to meet
with it and discuss the possibility of its signing a “Letter of
Assent” and becoming an organized employer. By letter dated
December 29, 1994, the Respondent declined the Respondent’s
offer.
The Union scheduled an organizing meeting for the Respon-
dent’s employees to be held on December 21, 1994. Employees
were informed of the meeting by Sabatini and telephone calls
from Thomas. Sabatini testified that on the afternoon of the day
of the meeting, he was working at a Manor Care job when
Parker came up to him and twice asked him what right he had
to try to start a union. Sabatini responded that he needed health
benfits. Parker asked why he could not get Blue Cross or simi-
lar coverage and Sabatini said he could not afford to pay for it.
On the following day Boros called a meeting of all employees
at the shop. Boros conducted the meeting and Parker and Bo-
ros’ wife and father, who are associated with the company were
also present. Sabatini testified that Boros said that he had
received a notice from the Union about organizing the com-
pany, that the Union was not in the company’s best interest, and
that if it went union, they would all be out of a job as it would
get out of the electrical business and become a general contrac-
tor. Boros said that if the Union was voted in he would have to
take union dues out of their pay and that the Union would as-
sign their foremen. He also said that the company’s client base
would change if it went union and that the employees would
have to make up their own minds.
Keith Jordan was an employee of the Respondent from Au-
gust 1994 to April 1995. He testified that he was first ap-
proached about the possibility of a union by Sabatini in mid-
November 1994 and that Sabatini informed him of the union
meeting on December 21, which he attended. Earlier in the day
of the meeting, Parker asked him if he was “going to the big
meeting that evening’’ and Jordan responded that he was. On
the following day he was ordered to attend a mandatory meet-
ing for all employees at the Employer’s shop. At the meeting
Boros stated that if they were to vote for a union, the Company
would switch gears and become a general contractor and “no
one would work.’’
Boros testified that he called the meeting after receiving the
November 18, 1994 letter from the Union. He told the employ-
ees that he did not consider it to be in the best interests of the
company or the employees to be unionized and that they should
talk to individual union members about it. Karl White has been
employed by the Respondent as an electrician for over 8 years
and was called by it as a witness. He testified that at the meet-
ing Boros told them they should talk to union and nonunion
people and make their own decisions, but could recall nothing
else that was said. Pursuant to leading questioning by the Re-
spondent’s counsel, he testified that Boros did not say that if
the employees unionized they would lose their jobs. On cross-
examination, he testified that Boros did not say that a union
would not be in the best interests of the company or the em-
ployees and he did not remember him saying that the direction
of the business might change. Cameron Cantrell is a 5-year
employee of the Respondent called as its witness. He testified
that Boros said that they “should explore both avenues’’ and
make their own decisions about whether to unionize. He too
could remember nothing else that was said and testified pursu-
ant to leading questions by the Respondent’s counsel that Boros
did not threaten that people would lose their jobs or that the
company would close down if they selected a union. On cross-
examination, he testified that Boros did not say that the Union
was not in the best interest of the Company or the employees.
When shown an affidavit he had given to a company attorney,
dated May 5, 1995, in which he had stated that Boros had made
those statements, he said that Boros had said it was not in the
best interest of the Company but “he never said the employ-
ees.’’ He said the statement to the contrary in the affidavit was
incorrect and “maybe a typo or something else.’’
Analysis and Conclusions
I credit the uncontradicted testimony of Sabatini and Jordan
about their conversations with Parker on December 21, 1994, in
which he interrogated Sabatini about his union activity and
asked Jordan if he was going to the “big meeting’’ that evening,
an obvious reference to the meeting employees were scheduled
to have with the Union. Parker is a supervior who was not
called as a witness by the Respondent and his absence was not
explained. I infer that his testimony would not have supported
the Respondent position on these issues. See International
Automated Machines, 285 NLRB 1122, 1123 (1987). Parker’s

MAUKA, INC. 809
statement to Sabatini implied that the Employer was aware of
his involvement in the Union’s organizing effort. At that point,
Sabatini was not an open supporter of the Union. Although the
Union had contacted the Employer about organizing prior to
December 1994, there is no evidence that it had identified Sa-
batini as an organizer or that he had ever informed Parker of his
involvement. On the contrary, the only conversation they had
about the Union was in June 1994 in which Sabatini denied any
involvement after Parker told him Boros was worried that he
would attempt to bring a union in. Considering all the surround-
ing circumstances, as required by Rossmore House, 269 NLRB
1176, 1177 (1984), I find that Parker’s comments were coer-
cive, whether they be considered as an interrogation or as
merely rhetorical. If the former, they constituted an unlawful
inquiry into protected activity and sought to compel Sabatini to
justify exercising rights protected by Section 7 of the Act. If the
latter, they implied that the Employer disapproved of Sabatini’s
involvement with the Union. There is no evidence that Jordan
was an open supporter of the Union or that the Union meeting
had been openly publicized before Parker spoke to him.
Parker’s questioning him about attending the meeting had no
legitimate purpose. It implied that the Employer was being
informed of the employees’ protected activities and coercively
inquired into Jordan’s personal involvement. I find that the
Respondent violated Section 8(a)(1) of the Act by coercively
interrogating Sabatini and Jordan and by giving the impression
that protected activities were under surveillance. E.g., Spring
City Knitting Co., 285 NLRB 426 fn. 4 (1987); Hunter Doug-
las, Inc., 277 NLRB 1177, 1180–1181 (1985).
I credit the testimony of Sabatini as to what was said by Bo-
ros at the employee meeting on December 22, 1994, over that
of Boros, White and Cantrell, based on their demeanor while
testifying and the content of their testimony. Sabatini appeared
to have the best recollection of the details of what was actually
said. His testimony concerning Boros’ threat to change the
nature of the business and put the employees out of work if
they went union was corroborated by Jordan. Boros’ limited
testimony about what he said at the meeting does not directly
contradict them. Initially, neither White nor Cantrell could
remember anything that Boros said during the meeting, which
White estimated lasted 30 to 45 minutes, other than they should
talk to union and nonunion people and make up their own
minds. Both contradicted Boros’ testimony by saying that he
did not say that a union was not in the best interests of the
company or the employees. Cantrell’s testimony about what
Boros said is partially contradicted by an affidavit he had pre-
viously given the Respondent’s attorney. I do not agree with the
Respondent’s argument that Sabatini’s testimony that Boros’
talking about deducting dues and the Union selecting foremen
if they went union is “inherently inconsistent’’ with his saying
that they would lose their jobs if they went union. The former
statements involve arguments against choosing union represen-
tation, while the latter threatens adverse consequences if those
arguments should prove unsuccessful. I find that Boros did
threaten the employees that, if they chose representation by the
Union, the nature of the Employer’s business would change and
they would lose their jobs. His prediction of adverse conse-
quences was not carefully phrased on the basis of objective
factors beyond his control and violated Section 8(a)(1). Triec,
Inc., 300 NLRB 743, 748 (1990); Laidlaw Transit, 297 NLRB
742 (1990).
2. Incident on March 17, 1995
On March 15, Cregg Law applied for a job with the Respon-
dent by dropping off a resume. He received a call to come for
an interview on March 17 and met with Boros. Law testified
that, while they were discussing his ability and experience, they
“also discussed some union activity that had been going on in
the Mauka Company previously to me being there.’’ During
that discussion, Boros said that there had been some union ac-
tivity going on at the Company and that he did not want to be
unionized. Law did not respond and they resumed discussing
the electrical business. Law was offered a job and commenced
work on March 20. The complaint alleges that Boros’ remark
that he did not want to be unionized violated Section 8(a)(1).
Analysis and Conclusions
The General Counsel contends that Boros’ unsolicited re-
mark expressing his opposition to union organizing during an
employment interview was coercive. The record is unclear as to
how the subject of union activity arose. There is no evidence
that Boros questioned Law about his union sentiments or said
anything that constituted a promise of benefits, a threat of repri-
sal, or that, objectively, would be considered to interfere with
his rights. I shall recommend that this allegation be dismissed.
3. Incident on April 5
The credible and uncontradicted testimony of Law and Jor-
dan establishes that during the first week of April, they went to
the Employer’s facility after work and tried to meet with Boros
to ask for a raise that would include union wages and benefits.
When Law explained why they were there, Boros told them that
he would not speak to them about wages and benefits as a
group, but would talk to them individually in about 2 weeks.
Both employees were wearing T-shirts and buttons with the
Union’s logo on them. Boros told them that they were not to
wear the union T-shirts and buttons in his shop or on his prop-
erty or while on their jobs. Boros admitted telling them not to
wear shirts with union insignia but testified that he also told
them that they could not wear “anything that was potentially
controversial’’ or “any shirt with what could be construed as a
political statement on it,’’ that might offend the “unknown
sensibilities’’ of an owner or contractor for whom they might
be working. The complaint alleges that Boros’ remarks were
threatening and coercive and violated the Act.
Analysis and Conclusions
Section 7 guarantees employees the right to engage in con-
certed activities for their mutual aid and protection. I find that
the Employer’s blanket refusal to meet with Law and Jordan to
discuss the subject of an increase in their wages and benefits
and its telling them that it would not hold any such discussions
with them acting together but only on an individual basis di-
rectly interfered with and nullified those rights in violation of
Section 8(a)(1).
In the absence of special circumstances, an employer cannot
infringe on its employees’ rights by prohibiting them from
wearing or displaying insignia indicating support for a union.
E.g., Albertsons, Inc., 272 NLRB 865, 866 (1984); Ohio Ma-
sonic Home, 205 NLRB 357 (1973). There was no evidence
that the Respondent’s employees were required to wear a spe-
cific uniform while on the job. Jordan testified that during his
tenure with the Respondent he often wore a shirt with the logo
of a California Iron Workers union local on it on the without

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810
anything ever being said to him. Boros’ professed fear that the
Union insignia on the shirts and pins might possibly offend
some customers’ “unknown sensibilities’’ does not constitute
special circumstances which outweigh the employees’ Section
7 rights. Virginia Electric & Power Co., 260 NLRB 408, 409
(1982). The Respondent contends that this allegation should be
dismissed as de minimis because after conferring with this at-
torney Boros rescinded his directive the following day. What he
did was change his order that they not wear union insignia to a
request that they not do so. “I went back to each one individu-
ally and made a request that they not wear the shirts . . . .’’ I
find that this did not lessen the interference with their protected
rights; DeMuth Electric, 316 NLRB 935 (1995); Comcast Ca-
blevision, 313 NLRB 220 fn. 3 (1993); or fully remedy the
unfair labor practices. Service Spring Co., 263 NLRB 812, 817
(1982). I find that Boros’ statements concerning wearing union
insignia violated Section 8(a)(1).
C. The 8(a)(3) and (1) Allegations
1. Incidents involving Sabatini
Sabatini testified that when he went to the shop on the morn-
ing of January 3, 1995, Parker told him there was no work
available and that he should call back at 4:30 that afternoon.
When he did so, Parker told him to sign up for unemployment.
On January 5, Sabatini called and told Boros that he would be
in that day to pick up his paycheck. Before going to the shop
that day, Sabatini went to the union hall and got a tape recorder,
as Thomas wanted him to ask if he had been laid off due to his
union activities and to record the answer. When he arrived at
the shop, Sabatini turned on the concealed recorder. He got his
check and asked to speak with Boros. He asked if he had been
laid off because of his union activity or his diabetic condition
and Boros said he had not. They discussed the fact that Sabatini
had to go to court the following week on a DUI charge and that
he had been offered a deal involving a 30- to 45-day jail sen-
tence. Sabatini also spoke to Parker and asked him if his union
activity was the reason for his layoff. Parker responded that he
was “just an innocent bystander.’’ When Sabatini opened the
envelope containing his paycheck, he found a written warning
referring to a number of incidents involving his work perform-
ance which the Employer considered “substandard’’ and stating
that any additional violation of its work rules would result in
his termination. He testified that he was not told about the
warning letter nor was it discussed before he left the shop.
When he went to court, Sabatini accepted the deal to serve 30
days in jail and was released on February 16 or 17. He testified
that he did not contact the Employer when he got out because
he thought he had been fired. He attempted to contact Parker by
calling the shop during the first week of March but he was not
in. He spoke briefly with Boros’ father, who is retired but has
an office in the same building as the Employer. He asked Boros
Sr. if there was any work and he said there was none other than
for the guys that were already working. He did not call the Em-
ployer again and he has never been contacted by it. The com-
plaint alleges that the Respondent violated Section 8(a)(3) and
(1) by issuing the written warning to Sabatini and by terminat-
ing his employment some time in March in retaliation for his
activity in support of the Union.
Analysis and Conclusions
In cases where the employer’s motivation is in issue, its ac-
tions must be analyzed in accordance with the test outlined by
the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). Under Wright Line, the General Counsel must
make a prima facie showing sufficient to support the inference
that protected conduct was a motivating factor in the em-
ployer’s decision. Once that has been done, the burden shifts to
the employer to demonstrate that it would have taken the same
action even in the absence of protected activity on the part of its
employees.
I find that the General Counsel has made such a showing
with respect to the written warning issued to Sabatini on Janu-
ary 5. Direct evidence of unlawful motivation is difficult to
obtain and is not essential. Circumstantial evidence and the
inferences drawn therefrom can be relied on to establish moti-
vation. Abbey’s Transportation Services, 284 NLRB 701
(1987); NLRB v. Pete’s Pic-Pac Supermarkets, 707 F. 2d 236,
240 (6th Cir. 1983). The Respondent’s opposition to the Un-
ion’s organizing efforts and the violations of Section 8(a)(1)
found herein establish its union animus. The evidence shows
that the Employer had reason to suspect that Sabatini was in-
strumental in getting the organizing effort started and the warn-
ing was issued shortly after it learned that employees had met
with the Union. The timing of an employer’s action can be
persuasive evidence of its motivation. Limestone Apparel
Corp., 255 NLRB 722, 736 (1981).
I also find that the Respondent has established that it would
have taken the same action even in the absence of protected
activity on Sabatini’s part. There is evidence that each of the
incidents referenced in the warning occurred and was consid-
ered by the Employer to be serious. Accordingly, I find that the
bases for the warning were not pretextual. The timing of the
January 5 warning letter is explained by Boros’ credible testi-
mony that its issuance was precipitated by an incident during
the previous week at the Salmac job in which Sabatini had shut
off the power without telling anyone and caused the customer’s
computer system to go down. The customer called Boros to
complain and ultimately refused to pay the invoice issued for
the job which had to be rescinded. Sabatini does not deny the
incident or his responsibility for what happened, although in his
testimony he attempted to downplay it and the other incidents
referred to in the warning. The record contains a letter from the
customer dated January 5, a day after the warning was pre-
pared, and the General Counsel implies that this is suspicious.
However, given the nature of the incident, I do not doubt
Boros’ testimony that the customer called him to complain
immediately after it occurred. I also do not credit Sabatini’s
testimony that Boros was not upset about the incident and said
only “so what’’ or “things happen.’’ I similarly do not credit his
direct testimony to the effect that he had never been made
aware of any problems with his work before the warning was
issued. On cross-examination he admitted that he was talked to
by Parker and was removed from the Mango Bay job, referred
to in the warning. That occurred in November after he had
made several serious circuiting errors and the customer had
complained that he had fallen asleep on a ladder while on the
job. One of the incidents referred to in the letter, involving his
rudeness to personnel at the Cleveland Dialysis Center, had
occurred during the previous summer and there was no inde-
pendent evidence that it had been raised with him before. How-
ever, Boros credibly testified that he was reminded of the inci-
dent by Parker on January 4 when he was considering sending

MAUKA, INC. 811
Sabatini there on a service call. While it can be argued that
raising such an old matter in the warning for the first time is
evidence of improper motivation, after considering all of the
circumstances, I do not infer that to be the case. There is no
evidence that any of the incidents referred to in the warning did
not happen or were not Sabatini’s fault. The warning states that
it is being issued because of a number of incidents of substan-
dard work performance by Sabatini and enumerates them. No
adverse action was taken against him as a result of the warning
but he was put on notice as to the nature of incidents and the
consequences of another similar incident. I shall recommend
that this allegation be dismissed.
The complaint also alleges that Sabatini was discharged by
the Respondent because of his protected activity. I find that the
General Counsel has not established a prima facie case that the
Respondent unlawfully discharged him. The original charge in
Case 8–CA–27263 alleged that Sabatini had been discharged
on January 3 and he testified that he thought that he had been
fired as of that date. However, the complaint alleges that he was
not discharged until some time in March. This was after he
finished serving his jail term and was not put back to work. It
does not allege that his layoff on January 3 was unlawfully
motivated. The General Counsel asserts that the Respondent
unlawfully discharged Sabatini because it did not contact him
and offer him available employment after it became aware that
he was out of jail and wanted to return to work for it. He con-
tends that it learned this when Sabatini spoke to Boros Sr. on
March 8 and that it had work available when it interviewed a
new employee on March 17. While I agree there is evidence of
animus on the part of the Respondent, I do not believe that any
nexus has been established between that animus and the fact
that it did not seek out Sabatini and offer him work in March.
He he left the office on January 5, Sabatini told the Employer
that he was headed for jail for an indefinite period. He got out
of jail on February 16 or 17 but he did not call the Employer
seeking work because he said he thought he had been fired back
in January. On March 8, he called the shop to speak to Parker,
who was not in, and he never called back. The question is
whether his conversation with Boros Sr. on that date establishes
that the Respondent knew that he was available for and seeking
work and, thus, supports the inference that it failed to offer him
work because of his protected activity. I find that it does not.
Sabatini testified generally that he asked Boros Sr. if he had
any work and he said only for the guys who were already work-
ing. Boros Sr. credibly testified that he is retired, that he has an
office in the same building and sometimes helps out, but that he
is not an employee of the Respondent, does not have an owner-
ship interest in it and is not compensated by it. He testified that
he answered a telephone call from Sabatini at the office on
March 8. Sabatini said, “Hi, boss, how you doing, what’s going
on?’’ He responded, “not much of anything’’ and said there
were several jobs that “have not come home.’’ He asked what
Sabatini was doing and said he thought he was in jail. Sabatini
said that he had served mostly weekends due to overcrowding
and was now out. Boros Sr. told Sabatini that Parker was not in
but would be back in 10 minutes and asked if he wanted him to
call. Sabatini said that he would call back in 20 minutes or the
next morning and hung up. Boros Sr. testified that at no time
did Sabatini inquire about the availability of work for himself.
He filled out a message slip for Parker indicating that Sabatini
had called and would call back.
I found Boros Sr. to be a credible witness and believe his
version of what was said during the March 8 telephone call.
The message slip he prepared for Parker at the time is consis-
tent with that version and I find it unlikely that, if Sabatini had
said that he was calling to inquire about the availability of
work, he would not have included it in that message. There is
no evidence that Boros Sr. had any involvement in the Respon-
dent’s personnel decisions. I find this brief telephone conversa-
tion did not constitute notice to the Respondent that Sabatini
was available and seeking work with it. Consequently, I also
find there is no basis to infer that the Respondent was aware
that Sabatini was seeking to return to work for it and failed to
recall him. I shall recommend that this allegation be dismissed.
2. Incidents involving Jordan and Law
After their encounter with Boros on the afternoon of April 5,
Jordan and Law made up signs saying that Mauka refused to
pay union wages and benefits which they planned to use to
picket at their jobsites the following day. At about 6:30 the next
morning, Law arrived outside his jobsite at Sawyer Research
and put up his picket signs. Jordan joined him at about 7 a.m.
and they picketed until 7:30 a.m., when Law went inside to
start work and Jordan went to a job at TDI. Both were wearing
their union T-shirts. At lunch time, Law picketed out in front of
Sawyer Research for about a half hour. About 1:30 p.m., Boros
came to Law’s jobsite and told him and his coworker to meet
with him outside the building. Boros first told Law the results
of his contact with his attorney concerning wearing the shirts
with the union logo. He then said that Law had to leave the
jobsite because of a written request by Sawyer Research and
that he should call at 9 a.m. the next morning. Law asked to see
the request but Boros refused to show it to him. Law’s co-
worker continued to work at the jobsite. Also at lunchtime that
day, Jordan picketed at his TDI jobsite. After he got home that
evening, Jordan got a call from Boros who told him not to re-
port to the TDI job the next day. Boros said that he had re-
ceived a letter and Jordan was not allowed on the TDI property
but should report to the shop at 1 p.m.
When Law called the next morning, Friday, April 7, Boros
told him to report to the shop. Law arrived about 10 a.m. and
Boros assigned him to rewiring some light fixtures and to repair
an exhaust fan in the shop. At lunchtime, Law went outside and
picketed along with Jordan, carrying signs saying that Mauka
refused to pay union wages and benefits. While they were pick-
eting, Boros came out and photographed them. At 12:30 p.m.,
Law went into the shop and told Boros that he was going on an
unfair labor practice strike to protest the unlawful discipline of
himself and Jordan and the unlawful discharge of Sabatini.
Jordan reported for work at 12:30 p.m. and was sent to draw a
material list for a job. His normal starting time was 7 or 7:30
a.m., depending on the job.
Law testified that he left the shop and went to the union hall
where he discussed what had occurred and his decision to go on
strike with Thomas. They made plans to picket at the shop on
the following Monday. Law and Thomas arrived at the shop at
about 11 a.m. on Monday and began picketing, carrying signs
that read, “Unfair Labor Practice Strike Against Mauka Elec-
tric.’’ After they had picketed about 10 minutes, Boros came
outside, looked at the signs, said to Law, “I’m going to cut your
head off for this’’ and photographed them. About 10 minutes
later, Law and Thomas left and went to the Mentor Police De-
partment where Law filed a complaint concerning Boros’ re-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812
marks while he was picketing. Thomas also testified that, while
they were picketing on April 10, Boros came out and took a
photograph and told Law he was going to cut his head off.
On April 13, Law hand delivered to Boros a written notice
making an unconditional offer to return to work. After Law had
given the notice to Boros and left the shop, he went back to get
his keys which he had left inside. At that point, Boros told him
to call between 4 and 5 p.m., as he might have something for
him at that time. When Law called him that afternoon, Boros
said he had no work for him and that he was laying off people.
Law heard nothing further from the Respondent until he re-
ceived a letter signed by Boros, dated May 15, 1995, stating
that it considered him to have abandoned his job and that he
was being removed from its employee list.
Analysis and Conclusions
The credible and uncontradicted testimony of Law, Jordan
and Thomas establishes that Boros photographed Law and Jor-
dan while they picketed on April 7 and Law while he picketed
on April 10. Board law is clear “that absent proper justification,
the photographing of employees engaged in protected concerted
activities violates the Act because it has a tendency to intimi-
date.’’ F. W. Woolworth Co., 310 NLRB 1197 (1993). There
was no evidence that the picketing was disruptive, that the em-
ployees engaged in any misconduct, or that the Respondent had
any reason to believe that they would. Consequently, there was
no justification for the photographing and it violated Section
8(a)(1). The credible and uncontradicted testimony of Law and
Thomas establishes that when Boros approached the picketers
on April 10, he told Law that he would cut his head off. It is
immaterial whether Boros intended his statement to be taken
literally or merely as a colorful figure of speech. The clear im-
port of the statement was that he wanted to retaliate against
Law and the threatened conduct had the tendency to interfere
with, restrain, or coerce employees in the exercise of their Sec-
tion 7 rights. Cox Fire Protection, 308 NLRB 793 (1992). By
threatening an employee with physical harm for engaging in
protected activities, the Respondent violated Section 8(a)(1).
E.g., Eskaton Sunrise Community, 279 NLRB 68, 77 (1986);
Lord Jim’s, 259 NLRB 1162, 1164–1165 (1982).
I find that the General Counsel has established a prima facie
case under Wright Line, that Law and Jordan were removed
from their jobs at Sawyer Research and TDI, respectively, in
retaliation for their having engaged in protected activity by
wearing their union T-shirts and buttons on the job and by
picketing in front of the jobsites on April 6.5 The Respondent
contends that it was not unlawful to remove them from the
jobsites and that the complaint allegations are insufficient to
allege a violation of Section 8(a)(3). The evidence is clear that
both were prevented from working on these jobs and that they
lost pay as a result.6 Law was not paid for the afternoon of
April 6 and was not put back to work until midmorning on
April 7. On that date, Jordan was not put to work until the af-
ternoon. The complaint allegations make it clear that the whole
series of events involving their removal from their jobsites and
reassignment to other jobs because of their protected activity
were alleged to be unlawful. I find that the Respondent was
given sufficient notice of what was in issue and that these mat-
ters were fully litigated.

5 Citing the Board’s decision in Plumbers Local 388 (Barton Malow
Co.), 262 NLRB 126 (1982), the Respondent asserts that Law’s picket-
ing at Sawyer Research constituted a violation of Sec. 8(b)(4) of the
Act and was not protected activity. I find that it has not proved this, as
contrary to its contention, the evidence shows that at least one other of
its employees, Saltenis, was working at the jobsite when Law was
picketing and there is no proof that his picketing or that of Jordan was
solely for the purpose of appealing to employees of secondary employ-
ers not to perform services for those employers.
6 This attack on the wording of the complaint also appears to be the
basis for the Respondent’s argument that the complaint allegations are
not supported by a charge. The charge in Case 8–CA–27296 alleges
that those employees were “disciplined’’ on or about April 7. The Re-
spondent’s actions with respect to Law and Jordan on April 6 and 7,
referenced in the complaint, clearly constituted discipline.
The Respondent apparently does not dispute that these em-
ployees were removed from their jobsites because of their
wearing union shirts and picketing but contends that it had a
legal right to do so and that it was required to do so because of
“directives’’ from its customers. The Respondent has offered
no other explanation for their removal. It presented no evidence
to support its claim that it was directed to do so by its custom-
ers. I do not find the testimony of Law and Jordan as to the self-
serving statements made by Boros when he removed them to be
probative evidence. Both were told that customers had made
written complaints about them but they were not shown the
alleged complaints even though Law specifically asked to see
one. No copies of the alleged complaints were proffered as
evidence at the hearing and Boros did not testify about these
incidents. Accordingly, I find that the Respondent failed to
establish that it was acting pursuant to customer complaints
when it removed Law and Jordan from their respective jobsites.
Even if there were such “directives,’’ it would not change the
result. “A desire to please a a customer does not, alone, provide
a business justification for infringing employees’ statutory
rights.’’ Control Services, 303 NLRB 481, 485 (1991). There is
no evidence to support the Respondent’s contention that the
actions of Law or Jordan were disruptive of the customers’
businesses and detrimental to the Respondent’s relationships
with those customers. Consequently, it has not established any
“special circumstances’’ which would justify such infringe-
ment. Since it has not established that it would have taken the
same actions with respect to Law and Jordan had they not en-
gaged in protected activities, I find that the Respondent violated
Section 8(a)(3) and (1) by removing them from their jobsites
and causing them to lose pay in retaliation for their having
worn Union shirts and picketed at the jobsites.
The General Counsel contends that Law was an unfair labor
practice striker and that once he made an unconditional offer to
return to work the Respondent was obligated to reinstate him to
his previous position of employment. The Respondent contends
that Law’s actions did not constitute protected activity. Al-
though I have found that Law was the victim of certain unfair
labor practices committed by the Respondent and do not doubt
but that they were part of his motivation for declaring himself
to be on an unfair labor practice “strike’’ on April 7, I do not
believe he was engaged in protected concerted activity when he
did so. The Board’s standard for determining whether an em-
ployee’s activity is concerted is found in its decision in Meyers
Industries, 281 NLRB 882 (1986), where on remand it reaf-
firmed the definition in its prior decision in that case, Meyers
Industries, 268 NLRB 493 (1984), that it must “be engaged in
with or on the authority of other employees, and not solely by
and on behalf of the employee himself.’’ Id. at 497. Law’s un-
contradicted testimony establishes that he informed Boros that

MAUKA, INC. 813
he was going on an unfair labor practice strike to protest the
Respondent’s treatment of himself and Jordan and the alleged
unlawful discharge of Sabatini, but it fails to establish that he
discussed such a strike with or sought to enlist the support of
any fellow employee, even Jordan, with whom he had been
picketing outside the shop, before he did so. No other employee
joined him in striking. Given these circumstances, I do not
believe that the Board’s decision in DeMuth Electric, Inc., 316
NLRB 935 (1995), cited by the General Counsel, supports a
finding that Law’s “strike’’ was protected concerted activity
within the meaning of Section 7.
Considering the Respondent’s actions under Wright Line,
supra, I find that there is insufficient evidence to support an
inference that the Respondent made a decision not reemploy
Law or that protected conduct was a motivating factor in any
such decision. It was the actions of Law, not the Respondent,
which resulted in his no longer working for it. Although Law
implied in his testimony that he considered the work he was
given on April 7 to be demeaning, it has not been alleged and I
would not find, that he was constructively discharged. It was
Law’s choice to walk away from his employment with the Re-
spondent. Although he requested his job back when he deliv-
ered his “unconditional offer to return to work,’’ the evidence
fails to show that there was a position available at that time or
that he made a reasonable good-faith effort to follow up on that
request. He first testifed that when he delivered his offer to
return to the Respondent, Boros said only that he did not have
anything for him. When he went back in the office to get his
keys, Boros said to call him between 4 and 5 p.m. that after-
noon. He did so but was told there was nothing available. He
heard nothing further until the letter of May 15 informing him
that the Respondent had removed him from its employee list.
However, on cross-examination, Law admitted that Boros had
told him first that if he had not heard anything by the following
Monday, he should call in on Tuesday. He did not do so. Law
may have felt that Boros’ telling him to call back that afternoon
relieved him from calling back on Tuesday, but there is no
evidence he was ever told that or otherwise excused from call-
ing in on Tuesday. Notwithstanding the fact that he had made a
request that the Respondent reemploy him, Law made no effort
beyond a single telephone call to see if anything was available.
Since he was not an unfair labor practice striker entitled to im-
mediate reinstatement, the burden was on Law to make a rea-
sonable effort to find out if there was work for him. He did not
do so. Consequently, there is no basis to infer that the Respon-
dent failed to offer him an available position or that it did not
do so because he had engaged in protected activity. I shall rec-
ommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Mauka, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
(a) Coercively interrogating employees concerning union ac-
tivities.
(b) Giving employees the impression that their union activi-
ties were under surveillance.
(c) Threatening employees with loss of employment if they
selected the Union as their collective-bargaining representative.
(d) Prohibiting employees from wearing shirts and buttons
displaying the Union’s logo while working or on its property.
(e) Coercing and interfering with employees’ rights by tell-
ing them it would not discuss requests for an increase in wages
and benefits with them collectively but only on an individual
basis.
(f) Photographing employees while engaged in protected ac-
tivities.
(g) Threatening an employee with physical harm for engag-
ing in picketing outside its facility.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by removing employees Cregg Law and Keith Jordan from
their jobsites, reassigning them to other jobs, and causing them
to lose wages because they had engaged in activity in support
of the Union.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7).
6. The Respondent did not engage in those unfair labor prac-
tices alleged in the complaint not specifically found herein.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative action
designed to effectuate the purposes of the Act.
Having found that the Respondent discriminated against em-
ployees Cregg Law and Keith Jordan by causing them to be
removed from their jobsites and lose wages on April 6 and 7,
1995, I shall recommend that the Respondent be required to
make them whole for such lost wages, plus interest to be com-
puted as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]