Miller Electric Pump & Plumbing

National Labor Relations Board - Board Decisions

Jul 30, 2001

334 N.L.R.B. 824 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824
Keith Miller, d/b/a Miller Electric Pump and Plumb-
ing and International Brotherhood of Electrical
Workers, Local Union No. 95. Cases 17–CA–
19301 and 17–CA–19425
July 30, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On July 10, 1998, Administrative Law Judge James M.
Kennedy issued the attached decision. The General
Counsel 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 decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The complaint alleges that in July and August 1997,1
the Respondent committed several independent viola-
tions of Section 8(a)(1) and, on or about September 19,
violated Section 8(a)(3) and (1) by failing to recall four
employees from layoff status. The judge dismissed the
complaint allegations in their entirety. The General
Counsel excepted to the judge’s failure to find that cer-
tain statements by the Respondent in July and August
violated the Act, and as explained below, we find merit
in these exceptions.
1. It is undisputed that on a few occasions between
July 3 and August 5, the Respondent’s owner, Keith
Miller, stated he would have to close the business if he
was forced to recognize the Union. On two occasions,
July 3 and August 5, Miller made this statement to em-
ployee Ron Lundien. Lundien, a paid union organizer,
did not disclose his union affiliation to Miller until Au-
gust 5. On July 21 and 29, Miller repeated this statement
to Union Business Agent Phillip Brown and union mem-
ber Mickey Hemphill who was seeking employment with
the Respondent. In dismissing the complaint allegation
that these statements violated Section 8(a)(1), the judge
found that there was no tendency to interfere with the
free exercise of employee rights under the Act because
the statements were “directed” at paid union officials
(Lundien and Brown) and, although “witnessed” by
Hemphill, he was a “salt” and “[h]is union sentiments
were clearly known.” We disagree.

1 Unless otherwise indicated all dates are in 1997.
In the absence of exceptions, we adopt pro forma the judge’s dis-
missal of the complaint allegations that the Respondent violated Sec.
8(a)(1) by informing employees that they would not be hired if they
were union organizers and Sec. 8(a)(3) by refusing to recall the four
employees.
Initially, we emphasize that Lundien was an employee
of the Respondent, and Hemphill was an applicant for
employment. Under NLRB v. Town & Country Electric,
516 U.S. 85 (1995), these individuals were statutory em-
ployees entitled to the protections of the Act, irrespective
of their status as paid union organizer or “salt.”
Furthermore, as conceded by the judge, the Board has
long found plant-closure statements to be highly coer-
cive, or “hallmark” violations. Regency Manor Nursing
Home, 275 NLRB 1261, 1262 (1985) (Member Dennis
concurring). Contrary to the judge’s finding, we find
that the prounion sympathies of the threatened employ-
ees do not negate, or even mitigate, the statement’s coer-
civeness. In determining the coerciveness of such a re-
mark, the Board applies the objective standard of
whether the remark tends to interfere with the free exer-
cise of employee rights. The Board does not consider
either the motivation behind the remark or its actual ef-
fect. Joy Recovery Technology Corp., 320 NLRB 356,
365 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998); Miami
Systems Corp., 320 NLRB 71 fn. 4 (1995), enfd. in rele-
vant part sub nom. Uforma/Shelby Business Forms v.
NLRB, 111 F.3d 1284 (6th Cir. 1997). We also find the
judge’s reliance on Rossmore House, 269 NLRB 1176
(1984), enfd. sub nom. Hotel Employees & Restaurant
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985), to be misplaced. Although an employer does not
necessarily violate the Act when it questions open and
active union adherents about their union sentiments, a
violation does occur if the employer’s statements contain
express or implied threats or promises. Christie Electric
Corp., 284 NLRB 740, 741 (1987) (interrogation of open
union supporter unlawful where accompanied by unlaw-
ful threat to “do anything” to keep the union out and to
not sign a contract). Accordingly, we find that Miller’s
comments violated Section 8(a)(1) of the Act.
2. It is also undisputed that on July 21 when Miller re-
peated his plant closing remark to the business agent,
Brown, in the presence of Hemphill, Miller said that “he
wasn’t going to go Union, he would shut the doors if
they tried to organize him, and that Philip [Brown] was
wasting his time.” The reference to organizing being a
waste of time is alleged to be an unlawful expression of
the futility of the selecting union representation. In dis-
missing this allegation, the judge characterized this
comment as noncoercive posturing to a union official
because “Miller knew, as did Brown, that it was unlikely
that Miller’s core employees would select a union if of-
fered the opportunity.” The judge found that Miller’s
remarks, made in the context of Brown’s request that
Miller hire union member Hemphill, were not designed
to be further disseminated to the employees and that
334 NLRB No. 108
MILLER ELECTRIC PUMP & PLUMBING 825
Miller was simply seeking to dissuade the Union from
starting an organizing campaign.
Contrary to the judge, we find that Miller’s remarks
are an unlawful expression of the futility of choosing
union representation. As noted above, Miller’s statement
that Brown was “wasting his time” was made in conjunc-
tion with Miller’s unlawful threat of plant closure. In
this context, Miller’s comment indicated to Hemphill that
seeking union representation would be futile because it
would result in Miller closing his business. Mr. Z’s Food
Mart, 325 NLRB 871 fn. 2 (1998). We also reject the
judge’s speculation regarding both the unlikelihood of
Miller’s core employees forming a union and the dis-
semination of the statement to employees. Moreover, as
discussed above, speculation as to the subjective reac-
tions of the Respondent’s other employees is irrelevant
since the objective tendency of this statement is to inter-
fere with the free exercise of employee rights. Accord-
ingly, we reverse the judge and find that the Respondent
violated Section 8(a)(1) of the Act by conveying the fu-
tility of seeking union representation.
3. The undisputed testimony also establishes that dur-
ing the course of the telephone conversation in which
Miller hired Hemphill, Miller asked him not to attempt to
organize or talk to the other electricians. The judge dis-
missed the allegation that this statement violated Section
8(a)(1), finding the comment to be a noncoercive attempt
at persuasion unconnected to any force or penalty. The
judge also noted that “Hemphill did not perceive the re-
marks as anything but an innocent request.”
We disagree and find that the remark was unlawful.
As an initial matter, we find Miller’s statement to be co-
ercive since the limitation on Hemphill’s activities was
simultaneous with the offer of employment. Cf. Lassen
Community Hospital, 278 NLRB 370, 374 (1986) (inter-
rogation of an employee in the course of employment
interview long held inherently coercive). Moreover, we
reject the judge’s assessment of Hemphill’s reaction to
Miller’s request. Rather, we must again assess the objec-
tive tendency of the statements to coerce employees, and
not the employees’ subjective reactions. Miami Systems
Corp., supra, 320 NLRB 71 fn. 4. Contrary to the judge,
we find that this statement tends to interfere with the
employees’ protected right to discuss union representa-
tion with their fellow workers on nonworking time. Our
Way, Inc., 268 NLRB 394 (1983); Schnadig Corp., 265
NLRB 147, 156 (1982). By telling Hemphill not to dis-
cuss the Union with his fellow employees, the Respon-
dent violated Section 8(a)(1) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Keith Miller d/b/a Miller Electric Pump and
Plumbing, Mountain Grove, Missouri, its officers,
agents, successors and assigns, shall
1. Cease and desist from
(a) Threatening employees that the Respondent would
close down in the event that the employees choose union
representation.
(b) Telling employees that seeking union representa-
tion would be futile.
(c) Telling employees not to discuss the Union during
nonworking time.
(d) 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) Within 14 days after service by the Region, post at
its facility in Mountain Grove, Missouri, copies of the
attached notice marked “Appendix.”2 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 17, after being signed by the Respondent’s author-
ized representative, 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 Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has, as the General Counsel asserts, gone out
of business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since July 3, 1997.
(b) Within 21 days after the 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.
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.

2 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
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 threaten employees that we would
close our doors in the event that the employees choose
union representation.
WE WILL NOT tell employees that seeking union rep-
resentation would be futile.
WE WILL NOT tell employees not to discuss the Un-
ion during nonworking time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

KEITH MILLER, D/B/A MILLER ELECTRIC
PUMP AND PLUMBING

Richard C. Auslander, for the General Counsel.
Keith Miller, pro se, of Mountain Grove, Missouri,
for the Respondent.
Ronald D. Lundien, Organizer (IBEW Local Union
No. 95), of Joplin, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case was tried in Mountain
Grove, Missouri, on May 7, 1998. The charge in Case 17–CA–19301 was filed on August 6,
1997,1 by International Brotherhood of Electrical Workers, Local Union No. 95 (the Union); it
was amended on September 25 and November 4. The charge in Case 17–CA–19425 was filed
on October 27 and amended on December 17. The Regional Director for Region 17 issued the
consolidated complaint on December 18. It asserts that Respondent, Keith Miller d/b/a Miller
Electric Pump and Plumbing (Miller or Respondent), has violated Section 8(a)(1) of the Na-
tional Labor Relations Act in various ways as well as Section 8(a)(3) of the Act with respect to
the rehire of four employees. Respondent admits some of the conduct (but not the legal conclu-
sions), denies some of it and denies violating Section 8(a)(3) in any respect.
Issues
The issues raised by the complaint are whether in July and August Respondent committed
several independent violations of Section 8(a)(1) and whether it violated Section 8(a)(3) of the
Act when about September 19 it “failed to recall from lay-off status its employees Ron
Lundien, Michael (Mickey) Hemphill, William Blanchard. and Cory Hannon.” Fundamental to
the latter issue is the threshold question of whether these four individuals actually held any
expectancy of recall under the circumstances of their “layoff” of August 4. The complaint does
not allege that the individuals had earlier been discharged/laid off unlawfully.
The parties were given full opportunity to participate, to introduce relevant evidence, to ex-
amine, cross-examine witnesses, and to argue orally. The parties waived the filing of briefs.
Their oral arguments have been carefully considered. Based upon the entire record of the case
as well as my observation of the witnesses and their demeanor, I make the following

1 All dates are 1997 unless otherwise noted.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is the sole proprietor of an electrical contracting business in the building
and construction industry. The business is located in Mountain Grove, Missouri. On the record
he admitted that during the 12-month period ending October 31, 1997, he purchased goods and
merchandise valued in excess of $50,000 from points outside the State of Missouri. He there-
fore admitted that at all material times he has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. He also admits that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Keith Miller is about 36 years old. He opened his business in Mountain Grove, a small
town in the Ozark Mountains some 60 miles east of Springfield, 7 years ago. He generally
employs, as a permanent core, two electricians besides himself and his wife Kathy. His most
valued employee is Aaron Harvison, a veteran journeyman who has been with him for 4 years.
He also has an a senior apprentice named John Paden whom he has employed for 3 years. In
addition, he has hired, from time to time, his childhood friend, Brett Ford. His wife Kathy is
responsible for most of the paperwork, although there is a clerical, Teresa, who helps out in the
office. When the work is performed outside the Mountain Grove area, Kathy often accompa-
nies her husband and works as an electrician under his trained eye or that of Harvison.
The Union is headquartered in Joplin, near Missouri’s western border and about a 2-1/2-
hour drive west of Mountain Grove. Its organizer is Ron Lundien. Sometime toward the end
of 1986 Lundien became aware that Respondent was to be the electrical subcontractor on the
construction of the Carthage Elementary School, in Carthage, Missouri. That town is 10 or 12
miles northeast of Joplin. Since it was a project being built at public expense, it required
contractors to pay employees a prevailing wage as set by State law. Lundien decided to try to
induce Miller to hire him as a journeyman electrician. He is a fully qualified journeyman. He
testified that in early January 1997 he went to Mountain Grove and filed a job application. He
did not tell Miller of his connection to the Union. He was persistent: “I called monthly to check
for employment. They said they didn't have anything at that period of time whenever I called.
I’d go by the job two or three times a month and I’d call probably twice a month.” Eventually
his persistence paid off.
The electrical portion of the Carthage Elementary School job began in early 1997. Respon-
dent was to install the electrical wiring for the entire project except for the control wiring for
the heating/ventilating/air conditioning system. Miller, Kathy, and another apprentice named
Kevin Hutsell were the principal workers on that job. Both Harvison and Paden were occupied
with other projects, including one in Licking, Missouri, about 40 miles north of Mountain
Grove.
On May 7, according to Lundien, he went to the Carthage jobsite and spoke to Miller at
some length. Although Miller did not offer him a job at that time, he did tell Lundien he would
probably be the next person he hired. He gave Lundien a W-4 form to fill out. However, about
7 weeks passed before Miller called him in the evening on June 29. After that conversation,
Lundien reported for work on July 1. He was on the payroll until August 4.2
B. The 8(a)(1) Allegations
On July 3, Miller’s father, Don Miller, came to the jobsite. He has been a Teamsters stew-
ard for his employer in Cabool, Missouri, for many years and was wearing his Teamsters shirt
while he visited with his son. Lundien observed the elder Miller wearing the Teamsters shirt
and later asked Keith about it. Upon learning of the elder Miller’s union background, he asked
Miller why he “wasn’t in the Union.” Keith explained that he had attempted to participate in
the IBEW’s apprentice program but they never put him to work, so he had had to get experi-
ence elsewhere. He went on to say that he didn’t have a problem hiring union people but if he
was forced to go union he would have to close his doors.
2 The last day Lundien actually worked was July 31.
MILLER ELECTRIC PUMP & PLUMBING 827
On July 21, Local 95 Business Agent Phil Brown came to the jobsite with union member
Mickey Hemphill and spoke to Miller about hiring some union electricians. Miller again said
that he had no problem hiring union electricians, but if forced to recognize a union, he’d have
to close his doors. He returned on July 28, again accompanied by Hemphill. He acknowledged
to Brown that he might need some help shortly. He took Hemphill’s name and phone number.
According to Lundien, who was present, Miller repeated his earlier remark that he had no
problem hiring union members, but if forced to go union he’d have closed his doors.
That night, Miller decided that he needed to bring aboard some additional people. He had
counted on getting Harvison and Paden from the Licking job which was supposed to have been
completed, but it had been delayed. Since they hadn’t yet finished, he decided it was necessary
to hire some other people. On July 29, he called Hemphill asking him to come to work on July
30. Hemphill said he would.

A. (HEMPHILL) I was sitting at home in the evening
time and received a call from Mr. Miller wanting me to go
to work for him and I agreed to go to work for him the
next day, July 30, and he told me to be there at, I believe it
was 8:00 o'clock.
Q. (MR. AUSLANDER) Okay. He say anything
else?
A. Yes, and that while I was there on the job he would
appreciate it if I didn’t try to organize any of the hands,
not to talk to any of the other electricians, just do my job.

Miller’s version is not greatly different. He said: “I never told anybody that they could not
discuss Union on their own time. I never even told them they couldn’t discuss it during the[ir]
work. The only time I ever did was with Mickey when I did talk to him over the phone and
asked him if he would not mention it because I didn’t want the employees riled up. And [t]hat
is supposed to be done, from what I have looked up, according to law and stuff, done on—on
their own time anyway whether it be after hours or what. And I have never not allowed any-
body to discuss it after hours.”
Also that day, Miller had asked Lundien if he knew any electricians who might want to
work on the job. That night Lundien contacted two union members, Cory Hannon and Bill
Blanchard. The next day they came to the jobsite and spoke to Miller. He told them to report to
work the next day, July 30. Those two, as well as Hemphill, did report and worked that day
and the next, July 31. All three agree that Miller told them during the hiring process that he
would use them temporarily, until he was able to transfer the members of his permanent staff to
the site. Hannon and Hemphill worked together on wiring some classrooms and some emer-
gency exit lighting. Blanchard worked by himself nearby in what was to become a hallway.
At the start of the workday on Friday, August 1, a Carpenters local began picketing the job-
site in an unrelated dispute with the general contractor. All four IBEW members decided to
honor the Carpenters’ picket line and not work behind it. Led by Lundien, they informed
Miller that they would honor the line. He told them to return on Monday, August 4, in the
hopes that the dispute would be over and in any event since Monday was a payday, they could
get their checks for work performed through Thursday. Lundien asked for Monday off for
personal reasons. It was his son’s 16th birthday and Lundien wanted to take his son to the
driver’s license test. Miller agreed.
All four left the site and went to the IBEW office where they filled out authorization cards
and Business Agent Brown filled out an NLRB petition for a representation election. It was
telefaxed to the Board’s Regional Office in Overland Park, Kansas. That afternoon a notice of
filing was faxed to Respondent’s office in Mountain Grove. Although seen by the office
clerical there, it was not given to Miller until Monday. Hutsell had gone home over the week-
end and returned Monday morning both with the paychecks3 for Kathy’s signature and a copy
of the petition.
In the meantime, on Friday evening, one of Respondent’s permanent employees, veteran
journeyman Harvison, arrived in Carthage. Miller, Kathy, and perhaps the newly arrived
Harvison continued to work at the site over the weekend. Harvison’s presence caused Miller to

3 The hours had been telephoned to Mountain Grove on Friday.
reconsider the employment of the local hires. Both Miller and Harvison testified to a think
session in the company truck on Sunday night. The result of the session was that with Harvison
aboard and the estimated number of hours left, as well as the expected arrival of Paden, Miller
determined it was not necessary to continue to keep the four local hires, who were not working
anyway because of the Carpenters’ picket line.
On Monday morning when Hannon, Blanchard, and Hemphill came in, the Carpenters’
picket line was still up. Miller gave them their paychecks and informed them of their layoff.
Hemphill had brought a copy of the petition as well as some other material relating to union-
negotiated matters and gave them to Miller. They had a short discussion about how to contact
Business Agent Brown, and the three left.
That night Miller called Lundien at home and told him that one of his regular employees
had come to the job and he wouldn’t need Lundien any more and he could come to the site on
Tuesday morning and pick up his check. Lundien did go to get his check on Tuesday. He
describes the conversation:

A. I found Mr. Miller and he—he gave me my check.
I asked Mr. Miller that—he told me that, he said he appre-
ciated my work and . . . but my services wasn’t needed any
more. And I asked him, I said, well, did I—was there a
problem with—because of the strike. And he said no. I
asked him if there was a problem because authorization
cards were signed and the petition was filed for election.
He said no. And I asked if there was a problem with my
work. He said no, that he had his employee come down
from Licking and they were—that he only had 1,000 hours
left on the project, and that my services weren’t needed
any more.4
Q. Did he say how many employees he could finish
the project with?
A. Four.
Q. What, if anything, did you tell Miller at that time?
A. I told Mr. Miller that I—at that time I give him my
card and told him I was an Union organizer. He said he
had a pretty good suspicion at that time here lately. I told
him, I said, I was hoping that we could possibly work to-
gether and get a project agreement with the Local and use
[union] labor, and he said that—excuse me. Mr. Miller
said that, again, that he didn’t have a problem hiring Un-
ion help, but he would close his doors if he was forced to
go Union. I told him that—that the—and that he didn't
like the sneakiness. And I said, would you had hired me if
you knew who I was? And he said again that he didn't
have a problem using Union labor. I asked Mr. Miller that
if he would proceed in hiring me to finish up the project
and he said that he was only going to do it with the four
people that he had and that—and I told him, I said I knew
the people on the project and I’d be keeping a report on
the project and they would report to me whether or not
4 At the hearing Miller could not remember how many hours he es-
timated were left on the job when he made the decision to let the four
go. In most respects it does not matter whether it was 1000 as Lundien
recalled Miller using (a figure which I think is a bit high) or the 200
which Harvison recalled (which is clearly too low). The complaint has
not put the early August “layoffs” in issue, only Respondent’s mid-
September hire of Brett Ford and Jeff Tomlin as somehow being an
unlawful refusal to rehire any of the four earlier laid off. Thus, Miller’s
judgment of how many hours remained in early August has no bearing
on what happened 6 or 7 weeks later.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
the—he hired anybody else. And he said that he wasn’t
going to hire anybody else but the four people that was left
on the job. [unrelated sentence omitted].
Q. Was anything said about recalling you to the job?
A. I’m sorry?
Q. Was there anything said about recalling you to the
job?
A. Calling me to the job?
Q. Recalling you to that job?
A. Oh, he said that he didn’t need any more help and
that—that they were going to finish it with just the four
people that they had on it.

Paden testified that he came to the Carthage Elementary School site in mid-August, apparently
about 2 weeks after the four had been laid off. He worked until the project ended. He testified that
Miller asked him shortly after he arrived on the job to redo some work which had been done
incorrectly. Some emergency lighting had been miswired to a switch leg and some of the class-
rooms had been wired so that the switches turned on the lighting in adjacent classrooms. He also
found some loose connections. Although he did not know who had made the mistakes, he de-
scribed the work as being in the same area where the three who had been hired in late July had been
working. Furthermore, he found some wires to a junction box which had been cut too closely to
allow sufficient play to work with properly. His testimony is corroborated by Harvison. In addi-
tion, Miller had earlier noticed that at least some of the new hires were not using a protective insert
(known both as a “red grommet” or an “anti-short”) in the cut flex conduit. He told Kathy to tell
them to do so. He thought it was an instruction he should not have had to give to experienced
journeymen electricians.
C. The Conduct Alleged to Violate Section 8(a)(3)
Those four, Miller, Kathy, Harvison, and Paden continued to work as a unit until about Sep-
tember 19 when Respondent rehired Brett Ford, his childhood friend and longtime intermittent
employee. At Ford’s suggestion Miller also hired Jeff Tomlin later that week. Tomlin left
during the week of October 23 and Ford during the week of October 30.
Lundien became aware of Tomlin’s hire and concluded that the union members had been
discriminated against because Respondent had hired someone else instead of any of the four
who had been on the project before.
Counsel for the General Counsel on the record advised that pursuant to the Union’s petition
for a representation election, that an election had been conducted and that the ballots of the
union members who appeared to vote were challenged. The challenges were sustained and
none of those votes were counted, resulting in a tally which showed that no votes were cast in
favor of union representation. The Board affirmed the Regional Director’s conclusions with
respect to the challenged ballots.5 I take official notice of the Regional Director’s Report on
Challenged Ballots issued on March 9, 1998, in Case 17–RC–11518. His report observes that
the election petition was filed on August 1, and that he approved a Stipulated Election Agree-
ment on August 15. The election was conducted on August 26. In that report the Regional
Director sustained the challenges to the ballots of all four union members, Lundien, Hannon,
Hemphill, and Blanchard. The Regional Director decided that all four of the challenged voters
failed to meet the 30-days-of-employment test for the eligibility of noncore employees in the
construction industry. See Steiny & Co., 308 NLRB 1323 (1992). Upon sustaining the chal-
lenges the tally showed 4 eligible voters of which 3 voted against representation by the Union
and none voted in favor.

5 MR. AUSLANDER: So, we conducted the election. The four
electrician, Union electricians showed up to vote and their ballots were
challenged. The Region sustained the challenge to their ballots and the
Employer won the election. I forgot what the score was. I don’t know
if all three [core employees] voted or not, but all the votes that were
cast that were opened were ‘no’ votes. The Employ—excuse me. The
Charging Party, slash, Petitioner then took an appeal to the Board and
the Board sustained the Regional Director.
III. ANALYSIS
A. The 8(a)(1) Allegations
First, as part of the inquiry about the nature of the union animus supposedly held by Re-
spondent, I think it is important to understand Miller’s personal background. He is the son of a
30-year union steward, a Teamsters steward who has held that union position at a dairy in
Cabool since 1968, and who has been a union activist since 1960. Respondent’s father testi-
fied:

Q. (BY RESPONDENT) Okay. At that time and all
during my childhood was I brought up pro-union?
A. (DON MILLER) You—you was sent through
school, grade school and high school, by union dollars, un-
ion money, and we've discussed for years and years and
years union, union, union. And you were pro-union, to
answer your question, yes.

While that fact is far from demonstrating Keith Miller’s current state of mind regarding un-
ion organizing at his own company, it does explain his willingness to hire IBEW members
without concern. The evidence which several witnesses testified to, that Miller said he had no
problem hiring union members is quite credible in the circumstances. It also explains his
equanimity when the four left the job while honoring the Carpenters picket line against another
contractor. Even so, there is other testimony, including allowances made by Respondent,
suggesting that he is not entirely free from animus when it comes to concerns about organizing
his company. Yet, the General counsel’s evidence is less than clear on each of these issues.
Careful analysis is required and the allegations do not withstand scrutiny very well.
Before turning to the allegations that Respondent has violated Section 8(a)(1), we look, of
course, to the statute. Section 8(a)(1) of the Act provides: “It shall be an unfair labor practice
for an employer—to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 . . . .” Section 7 is quoted in the footnote below.6 Another section of
the Act, Section 8(c), specifically permits free speech which is not aimed at coercing employees
from exercising those Section 7 rights. It states: “The expressing of any views, argument or
opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall
not constitute or be evidence of an unfair labor practice under any of the provisions of this Act,
if such expression contains no threat of reprisal or force or promise of benefit.” (Emphasis
added.)
The Board and the courts have said that Section 8(a)(1) and (c), when read together, leave
an employer free to communicate with his employees so long as the communication does not
contain a “threat of reprisal, or force, or a promise of benefit.” Advanced Mining Group, 260
NLRB 486 (1982); TRW, Inc. v. NLRB, 654 F.2d 307 (5th Cir. 1981); NLRB v. Gissel Packing
Co., 395 U.S. 575, 617–618 (1969).
In addition, although Section 7 appears to grant employees the absolute right to engage in
union organizing at all times and in all places, the Board has recognized that working time is
for work and employees do not have the authority to set their own terms and conditions of
when they will work and when they will not. That is particularly so when a nondiscriminatory
rule against solicitations/distributions is in effect. The Board has long approved of such rules.
Peyton Packing Co., 49 NLRB 828, 843 (1943); Stoddard-Quirk Mfg. Co., 138 NLRB 615
(1962); Our Way, Inc., 268 NLRB 394 (1983). Without such a rule the statute and Board case
law will govern the appropriateness of any discipline which might be levied upon an employee
who engages in union activity on the job. The conduct may or may not be protected, depending
6 Sec. 7 of the Act states: “Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid protection, and shall also have the right to re-
frain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in section
8(a)(3).”
MILLER ELECTRIC PUMP & PLUMBING 829
on the circumstances. Bird Engineering, 270 NLRB 1415 (1984); Waco, Inc., 273 NLRB 746
(1984); Interlink Cable Systems, 285 NLRB 304, 306–307 (1987). Indeed, while the rights of
employees to solicit union membership may be balanced against an employer’s right to main-
tain discipline7 or to assure that working time is for work, that fact does not make the right to
solicit any less protected where lawful circumscriptions do not apply. Hoerner-Waldorf Corp.,
227 NLRB 612, 613 (1976).
On the other side, although Section 8(c) appears to permit an employer to say nearly any-
thing which is neither threat, coercion nor promise of benefit, in practice that is not quite true.
The Board is often called upon to determine if remarks, otherwise “relatively inconsequential”
standing alone, should be construed as coercive in the context of other unfair labor practices or
considering the totality of the circumstances. See, e.g., New Alaska Development Corp. v.
NLRB, 441 F.2d 491, 493 (7th Cir. 1971). Gissel, supra at 617. And, if the remark is to be
scrutinized under the Act it is usually pursuant to an objective, not subjective test. The Board
will not ordinarily look to the Employer’s motive, or whether the alleged coercion succeeded or
failed, but whether the employer’s conduct may reasonably be seen as tending to interfere with
the free exercise of employee rights under the Act. See American Freightways Co., 124 NLRB
146, 147 (1959); El Rancho Market, 235 NLRB 468, 471 (1978); Williamhouse of California,
317 NLRB 699, 713 (1995). Even so, there are situations where motive and probable success
or failure of the coercion may be considered. See Rossmore House, 269 NLRB 1176 (1984),
affd. 760 F.2d 1006 (9th Cir. 1985), for the appropriate test relating to the treatment of open
and active union supporters. Cf. Sunnyvale Medical Center, 277 NLRB 1217 (1985) (balancing
surrounding circumstances to determine if questioning was coercive).
I observe that in the fact pattern seen here, Hemphill was presented as a known and open
union member. In fact, Union Business Representative Brown brought Hemphill to the jobsite
on two occasions in an effort to see if Respondent would hire him. Brown then engaged Miller
in conversations during which Miller made statements which are under scrutiny here. Lundien
is a professional union organizer who went “underground” as a “salt” and who also engaged
Miller in union-related conversations or listened to Miller as he spoke to Brown and others.
And, although Blanchard and Hannon are “salts” who were brought to the job by Lundien, they
were not witnesses to anything Miller said to the two paid union officials. They did join the
other two in walking off the job in honor of the Carpenters picket line against the general
contractor but noted that Miller was not upset by their decision to leave the job and told them
they would still have jobs when the line came down. On the following Monday they gave
Miller a copy of the petition for an NLRB election and gave Miller some information about the
Union’s area contract and how to get in touch with Business Representative Brown.
The complaint alleges that Respondent violated Section 8(a)(1) in four separate ways, all
occurring on or before the August layoffs. These include contentions that Respondent informed
employees that they would not be hired if they were union organizers, “promulgat[ed] a rule”
prohibiting employees from discussing the union, made a representation that union representa-
tion was a futility, and uttered several threats to close the business if the Union was selected as
their representative.
With respect to the allegation that Respondent said he would not hire union organizers, the
proof consists entirely of Lundien’s testimony about Tuesday, August 5, after Miller had
informed Lundien that he had decided to proceed without him. That morning Lundien finally
identified himself as a professional union organizer and began fishing for evidence of a dis-
criminatory motive to support the unfair labor practice charges that were coming regarding the
layoffs. He testified: “And I said [to Miller], would you had hired me if you knew who I was?
And he said again that he didn't have a problem using Union labor.” Lundien could testify to
nothing further. Clearly Miller was answering that he would hire union members, which
Lundien obviously was. Moreover, he had hired Hemphill whose union membership was
known. And, Miller knew there was a substantial likelihood that Hemphill would serve as a

7 The Supreme Court said in NLRB v. Babcock & Wilcox Co., 351
U.S. 105, 113 (1956): “No restriction may be placed on the employees’
right to discuss self-organization among themselves, unless the em-
ployer can demonstrate that a restriction is necessary to maintain pro-
duction or discipline.”
union organizer, for he could not be certain that his bid to Hemphill (discussed next) would be
honored.
In that circumstance, the General Counsel’s evidence is insufficient to support the allega-
tion that Miller said he would not hire union organizers. If anything, the evidence is to the
contrary. Miller had already hired a person known to be a potential union organizer. The
allegation should be dismissed.
The next 8(a)(1) allegation is the claim that Respondent “promulgated orally” a “rule” pro-
hibiting employee discussion of the subject of the Union. The facts are simple and uncontested.
Hemphill and Business Agent Brown visited the jobsite twice in July to ask if Miller would
consider hiring Hemphill. On the second occasion Miller said that he might just do that, he was
considering adding some more hands, but needed to check with Kathy first, apparently to
determine financial feasibility. A day or two later, on July 29 Miller telephoned Hemphill at
home and asked him to come to work the next day. Hemphill’s testimony was: “[W]hile I was
there on the job he would appreciate it if I didn't try to organize any of the hands, not to talk to
any of the other electricians, just do my job.” Miller agrees. He said he asked Hemphill, “[I]f
he would ‘not mention it’ because I didn't want the employees riled up.”8
Yet this testimony does not qualify as the promulgation of a “rule.” Hotel Roanoke, 293
NLRB 182, 189 (1989).9 At worst it is a directive to a single employee regarding how to
behave, not a broad prohibition. At best it is only a noncoercive request that the employee not
engage in union activity. The issue to be decided is whether the comment was coercive. I
conclude that in context it was not. As noted in the introductory portion of this section, Section
8(c) permits employers to say nearly anything to an employee so long as it does not contain a
threat of reprisal or force or promise of benefit. Here Respondent was offering Hemphill a job.
Hemphill did not testify that a condition of the offer was his willingness to abandon his union
organizing propensity; and he did not say that a threat of job loss was connected to the request;
nor did he describe the conversation in detail sufficiently clear so that such a condition or threat
could reasonably be inferred. The remark instead appears to have come as an afterthought and
was just what it appeared—a simple bid or attempt to persuade.
This remark may be compared to several similar cases. For example in American
Thread,10 a union officer was returning to work after attending a 2-day NLRB hearing about
which other employees had expressed marked interest. The employer asked him “not to bunch
up talking, just run the job as usual.” The Board found that to only be a bar from talking with
others in such a way that production would be adversely affected, not a deterrent against talking
about the hearing or the union. See also SCA Services of Georgia, 275 NLRB 830, 836 (1985).
There an employer asked strikers to abandon their strike and return to work. His request was
unaccompanied by any threats or promises and the Board held the request to be lawful. Also,
in Entronic Corp., 227 NLRB 1770, 1773 (1977), the Board found no violation when an
employee was told to “shut up” when he observed “maybe if we had a union here we wouldn’t
have any problems.”
These may be contrasted with cases involving “force” of one kind or another in which a
violation was found. See the following cases: Seligman & Associates, 240 NLRB 110, 116–
117 (1979) (statement that employee not talk about the union to others under pain of dis-
charge); Tendico, Inc., 232 NLRB 735, 748 (1977) (same); D.R.C., Inc., 233 NLRB 1409, 1414
(1979) (ordering employee to cease discussing union); Lincoln Hills Nursing Home, 266 NLRB
740 (1983) (warning employee not to maintain contacts with union supporters); East Side
Sanitation Service, 234 NLRB 1099, 1108 (1978), enfd. 653 F.2d 235 (6th Cir. 1980) (caution-
ing laid-off employee that he could return to work, but not talk about the union, the Board, or
anything of that nature during working hours); ConAgra, Inc., 248 NLRB 609 (1980) (instruct-
8 The portion of the quote relating to Miller’s desire not to rile up the
employees was an explanation to me, but not anything which he said to
Hemphill. If he had, Hemphill would have reported it. The quotation
has been edited to reflect that differentiation.
9 In Hotel Roanoke, the Board held that telling an unlawfully sus-
pended food service worker who was returning to work, that she could
“talk about the veal and the lemon sauce, but not the union,” was not
the promulgation of a rule, although the comment was otherwise coer-
cive. See also American Thread Co., 270 NLRB 526, 528 (1984).
10 Supra at 528.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
ing an employee not to talk about the union with another employee); F.W.I.L. Lundy Bros.
Restaurant, 248 NLRB 415, 428 (1980) (announcement by manager to assembled employees
that he didn’t want them to discuss the union).
Taking the remark from Hemphill’s point of view (“he [Miller] would ‘appreciate it’ if I
didn't try to organize any of the hands, not to talk to any of the other electricians, just do my
job”) it is clear to me that Hemphill did not perceive the remark as anything but an innocent
request. His perception is correct. (It is equally clear that Hemphill had no intention of honor-
ing the request.)11 Not only was it couched in “request” terms, it was not connected to any
force suggesting any penalty would attach if he ignored the request. As in American Thread,
the emphasis was on getting the work done. In fact on the next day Hemphill was assigned to
work with Hannon (whose union views were then unknown to Miller). Respondent did not
even isolate Hemphill. (If Hemphill had wanted to talk to Hannon about the Union he not only
could have, he would have. Talking to Hannon was unnecessary of course since Hannon was a
fellow union salt and Hemphill knew it.) This allegation will be dismissed.
The third allegation is that Respondent told employees in early July that it would be futile
for them to select a union as their representative. The testimony does not show any occurrence
during that specific time period; instead the General Counsel points in his argument to Hemp-
hill’s testimony about the conversation Miller had with Union Business Agent Phil Brown in
mid-July (actually July 21). That was when Brown first took Hemphill to the Carthage site to
ask if Miller would hire Hemphill and if he had a problem using union help.
As previously noted, Hemphill said Miller said he had no problem with hiring union help,
but, “he wasn’t going to go Union, he would shut the doors if they tried to organize him, and
that Philip [Brown] was wasting his time.” This allegation focuses on that part of the remark
referring to organizing being a waste of Brown’s time.
Hemphill is the only witness who testified about this aspect of the conversation. Brown
was not a witness and Miller (operating on a pro se basis) neglected to talk about it. Frankly, as
an independent violation of the Act, the allegation puzzles me. The remark sounds in posturing
from the outset.
Miller knew, as did Brown, that it was unlikely that Miller’s core employees would select a
union if offered the opportunity. Lundien had undoubtedly reported to Brown that the only
statutory employees who Miller had on the site were apprentice Hutsell and himself. Thus both
of them knew that Miller was referring to the fact that Brown would be unable to organize the
employees and it was for that reason that Respondent was asserting that Brown was wasting his
time. While at that point Miller may not have known what Lundien’s sentiments toward
unionization were, he knew Hutsell’s feelings. Furthermore, he knew that permanent employ-
ees Harvison and Paden were unlikely to favor union representation. Thus, his “wasting time”
remark to Brown was not coercive, but was simply posturing to a union official and was
undoubtedly perceived as such by Hemphill, the only statutory employee (and “salt”) who
seems to have heard it. (Lundien was present but didn’t testify to it, undoubtedly because it
made no impression on him.)
In other circumstances the Board has often held such references to wasting “time” or “ef-
fort” or “money” as noncoercive. For example, even though it found other violations connected
to the remarks, it declined to hold that an employer violated Section 8(a)(1) when it told two
employees who had complained to a state department of labor inspector about their wage scale
that their actions were not going to accomplish anything. That finding was made even though
the employees’ conduct was found to be protected concerted activity and the discharges which
followed to be unlawful. Kyle & Stephen, Inc., 259 NLRB 731, 733 (1981). Similarly, an
employer did not violate Section 8(a)(1) when a manager told employees they should not
follow a coworker as the leader of the union’s organizing drive since his motive was revenge

11 It is appropriate to view the remark from the employee’s perspec-
tive. Thus, Miller’s recollection is not particularly important to resolv-
ing the issue, although he is under the mistaken belief that he can law-
fully impose broad limits on organizing, even if he has not actually
done so. (“And [t]hat is supposed to be done, from what I have looked
up, according to law and stuff, done on—on their own time anyway
whether it be after hours or what. And I have never not allowed any-
body to discuss it after hours.”) In point of fact he has never “not al-
lowed it” during working hours either.
for not being promoted and because he was only a “parking lot lawyer.” The implication was
that following such a man could only end fruitlessly. The Board held the comments to be
protected by Section 8(c) even though it was said in a context of other unfair labor practices
including threats of discharge. Haynes Motor Lines, 273 NLRB 1851 (1985).
In addition, the Board affirmed an administrative law judge in W & F Building Mainte-
nance, 268 NLRB 849, 858 (1984), who dismissed a “futility” allegation where an employer
told his employees that it was “a waste of money to join the union” and the employees’ “job
security was not in the union, but in doing a good job.” The remarks were held to be the lawful
expression of opinion and therefore privileged by Section 8(c).
Commonly, the unfair labor practice of declaring the “futility of selecting a union” refers to
an employer’s expression to employees that it will not bargain in good faith when obligated to
do so; that it is the employer who will set the wages and other terms and conditions of employ-
ment and not the union. It most often occurs during an election campaign or after a certifica-
tion of representative is issued. Occasionally, it will occur before that stage, usually during an
organizing drive where the employer is attempting to blunt a union’s effort. In either case it is
invariably directed at employees who are believed to be willing to transmit the message to
others.
Here, in contrast, Respondent had not yet been faced with an organizing drive much less a
demand for recognition. Business Agent Brown was simply testing Respondent’s willingness
to hire a union member. A posturing remark of the type Miller made to Brown in that context
is totally predictable and of little significance. Certainly Brown would not have repeated the
message to employees and neither would Hemphill. It was not a pronouncement designed for
repetition to employees, but a naive and somewhat feeble attempt to dissuade Brown from
commencing an organizing effort. This allegation will be dismissed.
The last 8(a)(1) allegation is that, beginning in July, Miller repeated on several occasions,
that he would have to close the business if he was forced to recognize the Union. There is
really no dispute that Miller made the statements. He admitted doing so, saying on at least four
occasions in July that while he didn’t have a problem with hiring union members, he would be
forced to close the doors of the business if he was obligated to recognize a union. The first was
during a conversation initiated by professional organizer Lundien who was curious why Re-
spondent wasn’t “in the Union” if his father was a union steward. Lundien at that time was
well aware that Respondent was a rural contractor who normally did business in an area of
lesser opportunity and where contract prices were much lower than in urban areas.
The second two occurred later when Brown presented Hemphill for hire. Lundien and
Hemphill both testified to these instances. As noted before, at least part of these remarks are
nothing more than posturing to a union official in the hope that he would go away and leave the
company alone.
The fourth time Miller made the statement was to Lundien on Tuesday August 5 when
Lundien revealed his true status to Miller and was hoping to induce Miller to make admissions
against interest regarding the layoff decision which Miller had implemented on Monday and
which he had applied to Lundien the night before.
Looking at the context in which the remarks were made, it is striking that in each case it
was directed to a person who was a paid union official. True, Lundien was not known to Miller
to be a paid union official until August 5, but the other two were directed at Union Business
Representative Brown. Only Hemphill, who witnessed the remarks to Brown, was not on the
Union’s payroll, but even he was a “salt” who was hardly a naïf. Moreover, Brown was
presenting him to Miller as a union member who needed some work. His union sentiments
were clearly known.
In addition, all of the persons involved in the “threats,” whether Miller or the Local 95 peo-
ple, knew that Miller was not talking about the Carthage job when he spoke of closing the
business. It was all hypothetical and everyone knew it. The Carthage job was well on its way
to completion and even if (as actually occurred) a representation election could be run before
that job ended, Respondent would not have shut that particular job down. The project was
funded publicly and the union-scale wages, if negotiated promptly, would not have affected its
viability. The “threat,” if it can be so described, was aimed at some time in the distant future.
As with the “wasting time” portion of the remark, the threat to close must also be perceived
as posturing and part of Miller’s effort to make the Union go away. As a threat it could only
MILLER ELECTRIC PUMP & PLUMBING 831
have been seen as implausible or at the very least so premature as to be accorded no credibility.
No one reasonably could have thought it to be real.
Under normal circumstances, one might be tempted to find an 8(a)(1) violation with respect
to Miller’s repeated statement that that he would close if forced to recognize the Union.
Certainly case law is legion holding that statements of this nature are coercive, even “hallmark”
coercive. Yet basic to such a finding is the requirement that the message be aimed at employ-
ees whose free selection of a bargaining representative is at stake. Here there really is no such
employee. Lundien is a paid union organizer and staffer who by definition can’t be influenced
and Hemphill is a “salt” who observed what was essentially a private conversation between
Miller and Union Business Representative Brown. Moreover, the conversations which Hemp-
hill heard can’t be taken at face value. They occurred in a specialized context which all three
Local 95 people could only have understood as bluster preliminary to whatever Miller actually
thought or might say if a debate over organizing ever opened. Had this occurred as an interro-
gation, it would not have been perceived as coercive. Rossmore House, 269 NLRB 1176
(1984), affd. 760 F.2d 1006 (9th Cir. 1985); Sunnyvale Medical Center, 277 NLRB 1217
(1985). Likewise here, it objectively had no “tendency to interfere with the free exercise of
employee rights under the Act.” It should be dismissed as well.
B. The Alleged Unlawful Refusal to Recall
Twenty years ago, the Board adopted Judge John F. Corbley’s recitation of the elements
necessary to find a violation of Section 8(a)(3) in a refusal to hire (or rehire) employees. He
said:

Essentially, the elements of a discriminatory refusal-
to-hire case are the employment application by each al-
leged discriminatee, the refusal to hire each, a showing
that each was or might be expected to be a union supporter
or sympathizer, and further showings that the employer
knew or suspected such sympathy or support, maintained
an animus against it, and refused to hire the applicant be-
cause of such animus. [Big E’s Foodland, 242 NLRB 963,
968 (1979).]

Applying those principles to this case, I find that the last two of the elements are missing en-
tirely. It is true that by September 19 (actually by Aug. 5), Respondent knew of the union sympa-
thies of each of the persons alleged to be discriminatees in the complaint: Lundien, Hemphill,
Hannon, and Blanchard. Yet the elements of animus and the nexus between animus and the
decision not to recall them are missing entirely. Moreover, the first element, that the employees had
applied for the job, is flawed as well.
With respect to the first element, that the employees did not have job applications pending, I
observe first that three of the four had been told during the hiring process that the job would last
only until Respondent was able to bring his permanent employees to the site. It was a temporary
job, even more temporary than construction jobs usually are. Second, all were laid off in early
August with the explanation that Respondent intended to finish the job with his own permanent
employees, the first of whom had just arrived. There was no discussion of any intention to recall
any of them and all four understood, despite the use of the phrase “lay off” that they were being
permanently separated from employment. In the construction industry as well as others, termina-
tions which are not for cause are often referred to as layoffs. That is by design for it is the intent of
the employer to tell the individual that his work has been satisfactory, but he simply cannot con-
tinue to employ the individual for some reason unconnected to the employee’s performance. The
context demonstrates the true nature of the separation, not the words. If there is an intent to recall
the laid-off employee, then evidence of that intent will be generated, such as a statement or refer-
ence to a policy.
Here, Miller by his words and deeds let all four know that they had no expectancy of recall. He
said he intended to finish the job without them. Once he said that all four knew they were not
coming back to the job unless they applied anew when Miller was once again hiring. That is the
construction industry practice and all four were familiar with it. Therefore the first element of the
prima facie case is missing.
Moreover, after those four had left, Respondent discovered some things which left him less
than satisfied with the work they had done. Before they left, he had had to remind them to use a
standard antishort-circuit device and afterwards he had to reconnect some wires where they had
made mistakes. These mistakes were connecting the emergency exit lights, which are supposed to
always be illuminated, to an on-off switch and connecting classroom three-way switches so that
when one turned the switch to the “on” position it lighted the adjacent classroom. While these
errors were not difficult to correct, the mistakes threw a different light on the workmanship of three
of the individuals, Hemphill, Hannon, and Blanchard.
It is true that Respondent in September hired two “new” employees. One, however, was hardly
new. That was Brett Ford, whose workmanship was a known quantity and who was entirely
acceptable to Miller. If he needed to add another employee because of a newly perceived need, his
choosing someone whose work he knew over people who had made fundamental mistakes can
hardly be faulted. Likewise, the fact that he accepted Ford’s recommendation to hire his working
partner Jeff Tomlin meant only that Miller was relying on the judgment of someone he trusted. It is
hardly the preference of a nonunion employee over a union member.
And, insofar as the other two elements are concerned, animus and an animus nexus to the deci-
sion not to hire, no animus has been shown. Respondent has hired union members (and one who
was a likely organizer) in the past. He did so because of his own personal family history. And he
did not discharge any of the employees who honored a stranger union’s picket line. Moreover, the
alleged 8(a)(1) conduct is either unproven or has not been demonstrated to have been coercive.
Indeed, even if it had been coercive, there is no connection to the decision not to recall those
who had been permanently laid off, so the nexus element is missing. There is no prima facie case
with respect to the 8(a)(3) allegation. It should be dismissed.
Accordingly, I conclude that the General Counsel has failed to prove any violation of the Act.
The entire case will be dismissed.
Based on the foregoing findings of fact, I draw the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act.
3. The General Counsel has not demonstrated, either by sufficient evidence or by appropriate
legal analysis that Respondent committed any of the violations alleged in the complaint.
[Recommended Order for dismissal omitted from publication.]