Tualatin Electric

National Labor Relations Board - Board Decisions

Sep 15, 1993

312 N.L.R.B. 129 (N.L.R.B. 1993)

129
312 NLRB No. 27
TUALATIN ELECTRIC
1 In adopting the judge’s decision, we do not rely on Habermen
Construction Co., 236 NLRB 79 (1978), enf. denied in part 641 F.2d
351 (5th Cir. 1981). Instead, we rely on Dean General Contractors,
285 NLRB 573 (1987), for the proposition that the question of
whether backpay is due a discriminatee for additional projects, as in
this case, is appropriately resolved during the compliance process.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 We shall modify the judge’s recommended Order to include the
usual language for requiring reinstatement of an unlawfully termi-
nated employee.
Tualatin Electric, Inc. and International Brother-
hood of Electrical Workers, Local No. 48,
AFL–CIO. Case 36–CA–6874
September 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 6, 1993, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief to the Re-
spondent’s exceptions, and the Charging Party filed a
brief in opposition to the Respondent’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Tualatin Electric, Inc., Wilsonville, Oregon, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer Edward W. Campbell immediate and full
reinstatement to his former job at Project Thunder or,
if that position no longer exists, to a substantially
equivalent position at another of the Respondent’s
projects to which Campbell would have been trans-
ferred at the conclusion of his work at the Project
Thunder site, but for the Respondent’s unlawful dis-
charge of him, without prejudice to his seniority or any
other rights or privileges previously enjoyed.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT make threatening and coercive state-
ments to employees because of their involvement in
union activities.
WE WILL NOT interrogate employees about their
union activities.
WE WILL NOT discharge employees because of their
union activities and the union activities of other em-
ployees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer Edward W. Campbell immediate and
full reinstatement to his former job at Project Thunder
or, if that position no longer exists, to a substantially
equivalent position at another project to which Camp-
bell would have been transferred at the conclusion of
his work at the Project Thunder site, but for our un-
lawful discharge of him, without prejudice to his se-
niority or any other rights or privileges previously en-
joyed.
WE WILL make whole Edward W. Campbell for any
and all losses incurred as a result of the unlawful ter-
mination of him, with interest.
WE WILL remove from our files any and all ref-
erences to the discharge of Edward Campbell and WE
WILL notify him in writing that this has been done and
that the discharge will not be used against him in any
future personnel actions.
TUALATIN ELECTRIC, INC.
Linda J. Sheldrup, Esq., for the General Counsel.
Thomas M. Triplett, Esq. (Schwabe, Williamson & Wyatt),
of Portland, Oregon, for the Respondent.
Norman D. Malbin, Esq., of Portland, Oregon, for the Charg-
ing Party.
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel’s unopposed motion to correct transcript is
granted.
2 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, or unchallenged credible evi-
dence.
3 ‘‘Salting a job’’ is the act of a trade union in sending a union
member or members to an unorganized jobsite to obtain employment
and then organize the employees. A ‘‘salted’’ member or ‘‘salt’’ is
a union member who obtains employment with an unorganized em-
ployer at the behest of his or her union so as to advance the union’s
interests there. The terms seemingly derive from the use of term
‘‘salt’’ as in the term ‘‘salting a mine’’ which refers to the artificial
introduction of metal or ore into a mine by subterfuge to create the
false impression that the material was naturally occurring or the
similar term ‘‘salting the books’’ used in reference to falsification
of books of account.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on November 19 and 20, 1992, in
Portland, Oregon, pursuant to a complaint and notice of hear-
ing issued by the Regional Director for Region 19 (Regional
Director) of the National Labor Relations Board (Board) on
September 29, 1992, and amended on October 28, 1992,
based on a charge filed on July 20, 1992, and docketed as
Case 36–CA–6874 by International Brotherhood of Electrical
Workers, Local No. 48, AFL–CIO (the Charging Party or the
Union) against Tualatin Electric, Inc. (Respondent) and an
amended charge filed on October 27, 1992. Posthearing
briefs were submitted on January 25, 1993.
The complaint alleges that Respondent’s project super-
intendent, Brad Adams, on or about July 20, 1992, at Re-
spondent’s Wilsonville, Oregon jobsite threatened employees
with discharge if they engaged in union activities in violation
of Section 8(a)(1) of the National Labor Relations Act (the
Act). The complaint further alleges that Respondent on or
about July 17, 1992, discharged employee Edward Campbell
because of his union activities in violation of Section 8(a)(3)
and (1) of the Act. Finally the complaint alleges that the
charge was initially resolved by the parties’ entrance into an
informal settlement agreement approved by the Regional Di-
rector on August 21, 1992, but that Respondent failed to
comply with its terms and, accordingly, the settlement was
vacated and set aside.
Respondent in its answer and at trial asserts that the settle-
ment agreement was improperly set aside and should be rein-
stated in full resolution of the matters in controversy. Fur-
ther, Respondent denies the conduct attributed to it as viola-
tive of Section 8(a)(1) of the Act. Finally Respondent con-
tends that the discharge of Campbell was not in violation of
Section 8(a)(3) and (1) of the Act.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine, and
cross-examine witnesses, to argue orally, and to file
posthearing briefs.
On the entire record1 herein, including helpful briefs from
the General Counsel, the Charging Party, and Respondent,
and from my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT2
I. JURISDICTION
At all material times Respondent has been an Oregon state
corporation with an office and place of business in
Wilsonville, Oregon in which State it has been engaged in
the business of electrical contracting in the construction in-
dustry. In the course of its business operations at relevant
times, Respondent annually purchased and received goods,
materials, and services valued in excess of $50,000 directly
from points and places outside the State of Oregon or from
suppliers within the State which in turn obtained goods and
materials directly from sources outside the State.
Accordingly, it is undisputed, and I find, that Respondent
has at all times material been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is an electrical contractor engaged in electrical
contracting in the State of Oregon at various construction
sites. Two of the many jobs where Respondent’s employees
were employed in the summer of 1992 were the Project
Thunder job in Wilsonville, Oregon, and the Walmart project
in Salem, Oregon. Respondent’s employees are not rep-
resented by any labor organization.
Respondent’s president at relevant times was Mike
Overfield. Its Project Thunder project superintendent was
Brad Adams. A job supervisor on Project Thunder was Brad
Adam’s brother, Mark Adams. Respondent’s Project Thunder
job involved electrical work as part of the construction of a
new commercial retail facility of approximately 170,000
square feet. The store was scheduled for pubic opening in
mid-September 1992. Respondent had staffed the job initially
in the spring of 1992 and by the summer of 1992 was em-
ploying up to 45 electricians on the job.
The Charging Party is a constituent local of the Inter-
national Brotherhood of Electrical Workers, AFL–CIO (the
International). The Charging Party and other locals of the
International primarily represent electrical workers in the
construction industry. Not surprisingly, the Charging Party
favors the success of employers who recognize it as the rep-
resentative of their workers. The Charging Party seeks to or-
ganize employers in the electrical construction industry and,
to the extent such employers remain unorganized, seeks to
have its members refrain from working for such employers.
Edward W. Campbell at all relevant times was a resident
of Longview, Washington, and a member of Local 970 of the
International. Unemployed in June 1992, Campbell sought
work through the Charging Party’s hiring hall, but was not
initially successful. At that time Campbell was asked by a
Charging Party official if he would be interested in salting
a job for the Union.3 Campbell had not had previous experi-
131TUALATIN ELECTRIC
4 Campbell was to obtain employment with Respondent at project
Thunder and once employed at the site generate interest and support
for the Union, answer questions and provide the Charging Party with
information including the names and phone numbers of employees
on the Project Thunder job. In turn the Charging Party relieved
Campbell from his obligation as a member to refrain from working
for unorganized electrical contractors and augmented Respondent’s
wages so that Campbell received union contract wages plus an addi-
tional amount sufficient to allow Campbell to self-pay his health and
welfare fringe contributions. Campbell’s total remuneration in work-
ing for an unorganized employer was therefore in essence identical
to that which he would have received had he been employed by an
employer under contract with the Union.
ence as a salt, but needed a job and accepted the terms of-
fered.4
B. Evidence Concerning Campbell
1. Events on the Project Thunder site
Pursuant to his agreement with the Union, Campbell
sought and obtained employment with Respondent at the
Project Thunder site as a journeyman electrician. He com-
menced work on July 6, 1992, commuting some 66 miles
each way from his Longview, Washington residence to the
site. During his employment Campbell engaged in organizing
activity on behalf of the Union among the electricians on the
site primarily before and after work and on work breaks. He
was discharged on July 17, 1992.
During the less than 2-week period of his employment at
the site, Campbell worked under the supervision of Super-
visor Mark Adams and also under the direction of Project
Superintendent Brad Adams. Working with an apprentice,
Campbell was assigned installation of electrical materials in
various elements of the building under construction including
lavatories, a children’s playroom and the fire safety system.
Very substantial and conflicting evidence was adduced re-
specting the quality of Campbell’s work, Campbell’s conduct
on the job, the presence or lack of sufficient jobsite plans,
and diagrams containing specifications for installation of cer-
tain items and the availability of supervision.
Mark Adams testified that on Tuesday or Wednesday, July
14 or 15, 1992, he held a regular weekly discussion with his
brother in which Brad Adams asked him his opinion of
Campbell and his work. Mark Adams testified that he told
his brother that Campbell’s performance did not seem con-
sistent with his purported 20 years in the trade and that, in
fact, Respondent had senior apprentices doing both more and
higher quality work. Mark Adams further testified that he did
not specifically recommend that Campbell be terminated nor
come to believe that Campbell would be terminated as a re-
sult of their conversation inasmuch as those decisions were
his brother’s to make. Brad Adams testified as an adverse
witness called by the General Counsel that he decided to ter-
minate Campbell for two reasons: (1) ‘‘nonproductivity,’’
i.e., that it took Campbell longer to complete assigned tasks
than it should have and, (2) for being out of his work area
two or three times. He specifically denied any knowledge of
Campbell’s union activities at the time he determined to dis-
charge him. Campbell was discharged on payday, Friday,
July 17, 1992.
William Metzler, an apprentice electrician for Respondent
at the time of the hearing, testified that he worked at the
Project Thunder site in July 1992 and had been approached
by Campbell twice on the job about joining the Union and
called at his home by a union official. Thereafter, but during
Campbell’s employment, Metzler testified he had a conversa-
tion with Brad Adams in which he reported that Ed Camp-
bell had talked to him and ‘‘a few different people on the
job’’ about the Union and was organizing on the job. Brad
Adams denied this conversation ever occurred or that he had
in any manner acquired knowledge respecting Campbell’s
union activities prior to his discharge.
Metzler worked with journeyman electrician Richard
Aronson during this period. Metzler could not recall if he
had reported his conversation with Adams to Aronson: ‘‘We
might have talked about it.’’ Richard Aronson at the time of
the hearing was no longer employed by Respondent having
left its employ to enter a union apprenticeship program. Fur-
ther he had filed wage and hour claims against Respondent.
Aronson testified that Metzler reported to him:
That he had had a conversation with Brad Adams
stating that Brad had been asking who was, you know,
talking to everybody about organizing, and Bill had
said that he and been approached by Ed Campbell.
Aronson further testified that later the same day or the next,
he was present when Brad Adams came up to Metzler and
said, ‘‘he’s out of here’’ and then departed without further
comment. Aronson recalled these conversations occurred be-
fore Campbell was discharged. Metzler was not asked about
this latter event. Brad Adams denied making this statement.
Jeffrey Chong, a journeyman electrician and member of a
separate constituent local of the International, worked for Re-
spondent in July and August 1992. Soon after he commenced
his employment he was contacted by the Union and recruited
as a ‘‘salt’’ under terms similar to those of Campbell dis-
cussed, supra. Chong worked with apprentice Ben Conradson
in July. Chong testified that after the morning meeting on
July 20, 1992, discussed infra, he and his apprentice Ben
Conradson had gone to work. In midmorning Brad Adams
approached, called Chong down from a lift, and engaged him
in a discussion respecting work progress. Chong testified:
I believe I was the one that initiated the question, so,
Brad, you know, where do I stand in working here any-
more? And so Brad told me that the major difference
between what I was doing—you know, what I was
doing and what Ed Campbell was doing was that I was
not, you know, trying to recruit his men for the union.
Chong testified that his apprentice was not a party to the
conversation, but was behind the two men on the lift and ap-
peared to be ‘‘uncomfortable’’ with his situation. Richardson
recalled the circumstances of the Chong-Adams conversation,
but testified he only heard part of the conversation and could
not confirm Chong’s testimony. Brad Adams also recalled
the conversation but denied that any part of the conversation
dealt with Campbell in any manner.
2. Postdischarge events
Following Campbell’s discharge the instant charge was
filed. On August 21, 1992, the Regional Director approved
an informal settlement agreement respecting the charge
which provided, inter alia, for compliance with the terms of
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the included notice. The notice provided in part that Re-
spondent would: ‘‘offer reinstatement to employee Ed Camp-
bell.’’ The settlement agreement did not otherwise address
the particulars of reinstatement, i.e., the location of the job
to be offered Campbell.
Campbell reported to the Project Thunder job early on the
morning of August 24, 1992, and was referred to Respond-
ent’s local office. He was there told that he was to work at
Respondent’s Walmart Project in Salem, Oregon. The new
site involved an increase in round-trip commuting distance
from Campbell’s home of some 60 miles. Respondent sug-
gested the Salem project would be of longer duration than
the Project Thunder job. Campbell reported as instructed
later that day to the Salem site. After 2 days of employment
and in the face of a dispute among the parties respecting the
sufficiency of the Salem job under the terms of the settle-
ment agreement, Campbell abandoned his employment.
Substantial testimony was received respecting the work re-
maining at Project Thunder at relevant times. Substantial
numbers of workers were employed at the site at the time
Campbell was offered the Salem employment. Respondent
advanced the argument, contested by the General Counsel
and the Charging Party, that at the time Campbell was of-
fered the Salem position—before the later picketing and em-
ployee quits and before numerous job changes were submit-
ted to Respondent by the general contractor, the job’s elec-
trician labor requirements were declining. In the event, how-
ever, substantial work was done at the job thereafter and
both Respondent’s electricians and outside contractor sup-
plied electricians paid for by Respondent were busy for a
substantial period.
C. The July 20, 1992 Prework Meeting
The Monday morning following Campbell’s Friday termi-
nation, July 20, 1992, the employees gathered before the start
of work and were addressed by Brad Adams. The specifics
of the meeting are in controversy.
Jeff Chong testified that Brad Adams initially told the em-
ployees that he desired to ‘‘clear the air’’ about the previous
week and efforts to organize Respondent. Chong recalled
Brad Adams assured the employees Respondent was not
going to recognize the Union and that any employee thinking
about the Union ‘‘might as well get in their rigs and go.’’
Richard Aronson and Ben Conradson corroborated the ‘‘peo-
ple who don’t like it can leave’’ allusion by Adams. Former
Respondent journeyman electrician, Gary Koenig, who was
neither at the time of the events nor the day of the hearing
a member of a constituent local of the International, testified
that Brad Adams told the employees ‘‘if any of the workers
there had intentions of going union, they could get in their
trucks or vehicles and leave.’’
Mark Adams testified that his brother simply told the em-
ployees in response to a question that Respondent had no
plans to go Union, that they were a nonunion shop and
planned to stay that way. Brad Adams recalled that he told
the employees that ‘‘anybody that wanted to go union was
welcome to go and that was their decision’’ and denied
threatening employees.
Koenig testified that following the remarks described
above, Brad Adams turned to employee Jeff Chong and
asked him if he was going to go union. Koenig recalled that
Chong answered that it was ‘‘an option’’ and thereafter the
employees dispersed to commence work. Chong testified that
the question was directed rather to Koenig and himself.
Aronson testified that Adams polled all the employees re-
specting their union sympathies by a show of hands and that
he was afraid to raise his hand.
Brad Adams testified that as the meeting was breaking up
he separately asked Chong and Koenig what their intentions
were respecting continued employment with Respondent. He
testified he did so because:
they had offered to me before that they had been union
and they were considering going union, so that was—
for my management decision, I needed to know that.
Mark Adams testified that his brother asked Koenig as the
meeting was ending ‘‘what his intentions were, because he
needed to know if he was planning on going union or not
and if he was going to leave our company.’’
D. Analysis and Conclusions
1. The vitality of the settlement agreement
A threshold issue in considering the allegations of the
complaint is the propriety of the Regional Director’s action
setting aside the settlement agreement. If this action was im-
proper, the settlement agreement will be reinstated and act as
a bar to any further consideration of the allegations. The sole
issue respecting the settlement agreement was whether or not
Respondent’s offer of the Salem jobsite employment to
Campbell was a sufficient offer of reinstatement under the
terms of the settlement.
Two arguments were made on the issue: one legal the
other factual. As a matter of law, the General Counsel and
the Charging Party argue that Campbell was entitled to rein-
statement at the site from which he was terminated, i.e., the
Project Thunder site in Wilsonville, Oregon, and, failing re-
ceipt of an offer of a position at that location, the terms of
the settlement agreement were not complied with. Respond-
ent contends it was entitled to assign Campbell to the Salem
job because it was a newer job with more work remaining
whereas the Wilsonville job was winding down with little
work remaining to do.
The meaning and interpretation to be given to the word
‘‘reinstatement’’ in the settlement agreement is that which
the Board applies to the same word in determining what con-
stitutes a sufficient offer of reinstatement in unfair labor
practice cases generally. This is so because the parties were
entering into a legal settlement of a charge alleging unfair
labor practices under the Act on agency printed forms and
were submitting the settlement for the approval of the Re-
gional Director. Terminology used in such a context may
fairly be held to bear the technical meanings of the trade.
Language descriptive of actions to be taken in settlement of
a unfair labor practice allegation—such as the term ‘‘rein-
statement’’—are surely terms of art which carry the meaning
assigned them by the Board in its decisions.
The Board holds that reinstatement is generally to the po-
sition the discriminatee previously held. A different position
or a similar position at a different location or facility is nor-
mally insufficient. Orit Corp., 294 NLRB 695, 699 (1989);
Professional Porter Co., 275 NLRB 12 (1985); American
Olean Tile Co., 265 NLRB 1625, 1628 (1982). This vener-
133TUALATIN ELECTRIC
5 See, e.g., Chase National Bank, 65 NLRB 827, 829 (1946).
6 Were it necessary to do so, I would favor the factual argument
of the General Counsel that Respondent knew there was substantial
work remaining to be done at Project Thunder as the time it denied
Campbell his former job. The burden of proof respecting the non-
existence of the former employment is on Respondent. Further on
this record I find that Respondent at the very least should have
known of a significant portion of the work that was necessary to be
done at the job. Thus, at the time the decision was made to offer
Campbell reemployment, Respondent could fairly have anticipated
that Campbell could have worked at the site for a substantial period
before he would have been taken off the site as a result of job com-
pletion.
7 Given that I have found that Campbell was entitled under the
terms of the settlement agreement to his former job at Project Thun-
der, I shall make no findings whatsoever respecting the sufficiency
of the Salem job offer. The General Counsel argued that position
was insufficient because it added substantially to Campbell’s work
commute. Respondent argued that the distance issue was never
raised by the Charging Party or Campbell. The record suggests Re-
spondent was working at a number of sites in Oregon at the time.
able Board doctrine5 has met with court approval. NLRB v.
Jackson Farmers, 457 F.2d 516, 518 (10th Cir. 1972); NLRB
v. Draper Corp., 159 F.2d 294, 297 (1st Cir. 1947). In NLRB
v. Seligman & Associates, 808 F.2d 1155 (6th Cir. 1986),
enfg. in relevant part 273 NLRB 1216 (1984), the court con-
sidered the employer’s argument that it believed in good
faith that the employee would be better off reinstated at an-
other location. The court noted at 1160:
The difficulty is, however, that the option [to work
at the original location or another] should have been
that of the [discriminatees] as the injured party and not
of [the employer] and that [the employer’s] offer, com-
ing on the heels of admitted violations of the Act, could
very likely be seen by [the employer’s] other employ-
ees as grudging compliance at best and, at worst, as pu-
nitive. An employer may not transfer employees for
purposes of discouraging membership in a legal organi-
zation [citation omitted]. Reinstatement to another loca-
tion after termination because of protected activity, ab-
sent a dominant legitimate business reason, would
achieve the same result as a transfer to discourage
union membership.
Respondent further argues at page 10 of its brief that the
construction industry is sui generis and that:
General Counsel has cited no authorities for the
proposition that reinstatement in the context of the con-
struction industry requires placement at a specific
project.4
4 This dilemma was considered in Haberman Construction Co., 236
NLRB [79 (1978) enf. denied 641 F.2d 351 (5th Cir. 1981)].
I do not find Respondent’s argument persuasive. Thus, I
decline to find that in construction or any other industry, an
employer has the right to withhold reinstatement to the
former position at the former location of employment absent
evidence either that the job is no longer existent or for other
‘‘dominant legitimate business reasons’’ not present here. I
find therefore the only basis for Respondent to have legiti-
mately withheld reinstatement to the Project Thunder posi-
tion would have been if the job no longer existed.
Turning to the factual issue of whether Campbell’s posi-
tion still existed at Project Thunder, I find that it did. Nor
do I believe that Respondent argues to the contrary. Rather
Respondent argues on brief at 13:
But for subsequent massive change orders, and the
intervening picket which resulted in 16 employees quit-
ting, Mr. Campbell would have been a candidate for
layoff shortly after reinstatement.
Respondent’s argument is that, as of the time Respondent of-
fered Campbell reinstatement, it believed Campbell’s em-
ployment at Project Thunder would have been brief. The
General Counsel contests the factual underpinnings of Re-
spondent’s argument and there is no doubt that subsequent
events, irrespective of whether they were or should have rea-
sonably been known to Respondent at the time Campbell was
offered reemployment, increased the work at the project and
extended the period that Campbell would have been em-
ployed.
I do not need to resolve the factual issue respecting the
qualification of the time remaining on Project Thunder for
Campbell absent his discharge beyond finding that the period
was not so short as to render Campbell’s Project Thunder po-
sition practically speaking no longer extant.6 This is so be-
cause I find that Respondent as a matter of law is not enti-
tled to conclude that, because the time remaining in a job at
a particular location is short, that the job no longer exists.
Rather I hold that the term ‘‘reinstatement,’’ as the Board
has interpreted that term, requires that the employee be given
his old job at the old location for the remainder of the period
work is available. In the instant case that work assignment
would have resulted in a substantial period of employment
for Campbell.
Accordingly, I find that Respondent in failing to offer
Campbell reinstatement to his former position7 did not com-
ply with the terms of the settlement agreement. I further find,
therefore, that the settlement agreement was properly set
aside and is not a bar to a consideration of the unfair labor
practice allegations of the complaint on their merits.
2. The allegations of independent violations of Section
8(a)(1) of the Act
a. Complaint allegations
Paragraph 5 of the complaint states:
On or about July 20, 1992 Respondent, by Brad
Adams at Wilsonville, Oregon:
(a) Threatened employees with discharge if they
engaged in union and/or protected concerted activi-
ties,
(b) Interrogated employees regarding their union
sympathies.
b. The alleged discharge threat
As noted supra, several employees testified that Brad
Adams told employees at the July 20, 1992 morning meeting
that Respondent would not recognize the Union and, in var-
ious similar versions, that those employees who wanted the
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Such relationships are of course properly considered with other
relevant factors in making credibility determinations and have been
so considered herein.
Union could get in their vehicles and depart. Brad Adams
denied making any statement that employees who wanted the
union could simply get in their vehicles and leave. Rather he
recalled telling employees that ‘‘anybody that wanted to go
union was welcome to go and that was their decision.’’
I credit the versions of the employees set forth above.
Their testimony on this point was essentially corroborative,
their demeanor sound, and their recollections clear. While the
record indicates that several of the employees were aligned
in interest with the Union and against Respondent, I do not
find that this effected their testimony respecting these events.
The Adams’ recollection of events, including a specific de-
nial that Brad Adams made any reference to employees vehi-
cles, was not equally persuasive. Their testimony is discred-
ited where inconsistent with the employees.
Given the above findings, I further find Respondent’s
statements violate Section 8(a)(1) of the Act. The Board has
regularly found that statements to employees that a union ac-
tivist who is unhappy should seek work elsewhere violate
Section 8(a)(1). Rolligon Corp., 254 NLRB 22 (1981);
Intertherm, Inc., 235 NLRB 693, 693 fn. 6 (1978); Sans
Souci Restaurant, 235 NLRB 604, 605–606 (1978); Padre
Dodge, 205 NLRB 252 (1973). Thus I sustain the General
Counsel’s complaint paragraph 5(a).
c. The alleged wrongful interrogation
As set forth in greater detail supra, several employees tes-
tified that following his statements respecting Respondent’s
intentions not to recognize the Union and his suggestion that
employees who did not like this could leave, Brad Adams
asked employees Koenig and Chong if they were going to
go union. Mark Adams specifically corroborated this testi-
mony as to Koenig and Brad Adams essentially did so.
While the Adams suggest the interrogation occurred out of
the hearing of other employees as the group was breaking
up, based on the employees’ testimony, supra, which I credit,
I find that other employees heard the questioning.
Respondent argues on brief at 23:
The evidence does reflect that Adams interrogated
two known Union supporters. They were lead people
and he needed to know their plans. Each confirmed
their interest in the Union, indeed Mr. Chong was a
paid organizer and neither appears to have been coerced
by this brief exchange. This claim should be dismissed.
The General Counsel, acknowledging the Board’s Rossmore
House decision (269 NLRB 1176 (1984)), argues that even
if Koenig and Chong were known union supporters, the in-
terrogation occurred in front of other employees and closely
followed the violative threats of Brad Adams discussed
supra.
Generally interrogation of employees respecting their
union activities violates the Act for it, as the General Coun-
sel argues on brief at 32, puts employees ‘‘on the spot’’ and
suggests their union activities will be a factor in their contin-
ued dealings with their employer. This fear inevitably chills
employees’ Section 7 rights. Such factors are much less im-
portant when the employees are openly supportive of the
Union. Respondent’s arguments respecting the need or jus-
tification for the interrogation of Koenig and Chong and their
public union sympathies are immaterial where, as I have
found above, the two were interrogated in the presence of
other employees who were neither known union supporters
nor who could have realized from the Respondent’s interro-
gation of Koenig and Chong that Respondent possessed argu-
ably benign business reasons for questioning them.
Further, in agreement with the General Counsel, I find that
the violative statements of Brad Adams immediately prior to
the statements in issue herein lend additional support to a
finding of a violation. Given all the above, I find that in the
circumstances presented Respondent’s interrogation violated
Section 8(a)(1) of the Act. The General Counsel’s complaint
paragraph 5(b) is sustained.
3. The discharge of Campbell
The parties addressed two independent issues respecting
the General Counsel’s allegation in paragraph 6 of the com-
plaint that Campbell was wrongfully discharged for his union
activities. The threshold issue is whether Campbell—by vir-
tue of his relationship with the Union—falls outside the pro-
tection of the Act. The remaining issue is, assuming Camp-
bell is within the protections of Sections 7 and 8 of the Act,
did his discharge violate the Act? These issues are discussed
separately infra.
a. Are ‘‘salted’’ union members, including Campbell,
employees protected by the Act?
Respondent argues that employees who are also paid em-
ployees and/or agents of a union are not ‘‘employees’’ within
the meaning of the Act and therefore not protected against
discharge for union activities. The General Counsel and the
Charging Party argue to the contrary. Discussion of this in-
teresting area is rendered unnecessary by the very recent and
definitive rulings of the Board in Sunland Construction Co.,
309 NLRB 1224 (1992), and Town & County Electric, 309
NLRB 1250 (1992). The relevant issues and cases are dis-
cussed by the Board in detail. Simply put, the Board finds
that paid union organizers who obtain employment with em-
ployers are ‘‘employees’’ of those employers within the
meaning of the Act and entitled to its full protection. Each
of Respondent’s employees is therefore fully entitled to the
protections of the Act irrespective of any payer-payee rela-
tionship with the Union.8
b. Was Campbell terminated in violation of the Act?
1. Argument of the parties
The record with respect to the discharge of Campbell pre-
sents traditional factual disputes. The testimony has been set
forth in some detail supra. The General Counsel has proved
that Campbell engaged in union organizational activities at
the jobsite and was discharged soon thereafter. Respondent
does not dispute these facts.
Respondent contends that its agents were without knowl-
edge of Campbell’s union activities and took the decision to
terminate him based on a management evaluation of his work
performance. The General Counsel and the Charging Party
challenge Respondent’s assertions arguing there is direct evi-
dence of Respondent’s knowledge of Campbell’s union ac-
135TUALATIN ELECTRIC
9 As discussed supra, Respondent may well have concluded the
Project Thunder job by the time this decision becomes final. In those
circumstances the particular job location to which Campbell should
properly be reinstated, if any, as well as the similar issues of where,
if at all, Campbell should have been transferred on his conclusion
of work at Project Thunder and how long such employment would
have continued—all such questions—are best deferred to the compli-
ance stage of this proceedings. Haberman Construction Co., 236
NLRB 79 (1978), enf. denied 641 F.2d 351 (5th Cir. 1981).
tivities and of Respondent’s union animus in terminating
Campbell. The General Counsel and the Charging Party also
challenge Respondent’s assertion that Campbell’s work per-
formance was a basis for his termination.
2. Analysis and conclusions
The parties cite the Board’s lead case establishing an ana-
lytical framework for considering discharge cases, Wright
Line, 251 NLRB 1083 (1980). That case establishes that if
the General Counsel establishes a prima facie case that an
employee was terminated for protected activity, the burden
shifts to Respondent to prove that the employee would have
been terminated even had the protected activity not occurred.
I find the Campbell allegation on this record may be re-
solved by considering two critical testimonial conflicts de-
scribed in greater detail supra. The first is the conflict framed
by Metzler’s assertion and Brad Adams’ denial that Metzler
told Adams before Campbell was terminated that Campbell
was talking to employees on the job about the Union and the
later ‘‘he’s out of here’’ assertion attributed to Adams by
Aronson. The second is the disputed conversation between
Chong and Brad Adams occurring after Campbell’s termi-
nation. Chong asserts and Brad Adams denies that Adams
told Chong soon after the July 20, 1992 meeting that ‘‘the
major difference between what I was doing and what Ed
Campbell was doing was that I was not, you know, trying
to recruit his men for the union.’’
Turning initially to the Metzler-Brad Adams conversation.
I credit Metzler’s version of events. Still employed by Re-
spondent at the time of his testimony Metzler impressed me
as an honest witness with a clear recollection of these par-
ticular events and a superior demeanor. So, too, I credit
Aronson based on his convincing demeanor even noting his
alignment with the Union and his opposition to Respondent.
I do not believe either Metzler nor Aronson would have sim-
ply concocted or fabricated the statements they testified to.
Brad Adams, in my view, has simply denied events which
are inconvenient and inconsistent with Respondent’s defense
in the case.
Regarding the Chong-Brad Adams conflict, I reach the
same conclusion. Chong did not have Metzler’s disinterested
perspective. Chong was clearly supportive of the Union and
Campbell and, like Campbell, had made common cause with
the Union and received financial remuneration for his efforts.
While considering these facts and the record as a whole, I
believe Chong’s testimony respecting his conversation with
Brad Adams both based on his sound demeanor and his clear
memory of events. Brad Adams, who I have discredited pre-
viously where his testimony conflicted with employees, sim-
ply did not persuade me he was testifying from a memory
of events rather than in accordance with a theory of defense.
Given these credibility resolutions, it is clear and I find
that Campbell was engaging in union activity, that Respond-
ent knew of his activities before his termination and that Re-
spondent was not pleased with his actions. Under the Board’s
Wright Line analysis, therefore, the General Counsel has es-
tablished a prima facie case and the burden shifts to Re-
spondent to show that Campbell would have been terminated
even absent his union activities.
The parties litigated at some length the quality and quan-
tity of Campbell’s work, the presence of plans and specifica-
tions on the job, the extent and availability of supervision,
and related matters. While the testimony was in large part
qualitative and subjective, I find no need to resolve the testi-
mony to the extent it conflicts. I reach this conclusion be-
cause the record convinces me that Respondent did not in
fact rely on Campbell’s work skills in determining to termi-
nate him.
Mark Adams testified that in commenting on Campbell’s
work skills to Brad Adams a few days before his termi-
nation, he did not seek Campbell’s termination nor, after the
conversation, did he expect it. Further, in the critical event
in this element of the case, Brad Adams in effect reported
back to Metzler that he had gotten rid of the union organizer
Campbell and conceded to Chong that Campbell had been
fired for union organizing. In neither conversation did he
mention any dissatisfaction with Campbell’s work.
Given all the above, I find that Respondent’s asserted rea-
sons for discharging Campbell were but pretext advanced to
cloak the true antiunion motivation underlying his removal.
It follows that Respondent has not born its burden of show-
ing that Campbell would have been fired even if his union
activities had not taken place. Accordingly, I find that Re-
spondent discharged Campbell because of his union activities
in violation of Section 8(a)(3) and (1) of the Act. The Gen-
eral Counsel’s complaint paragraph 6 is sustained.
REMEDY
Having found the Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
I shall recommend that Respondent offer Edward Camp-
bell full and immediate reinstatement to his former position
at Project Thunder as a journeyman electrician.9 Further Re-
spondent shall be directed to make Campbell whole for any
and all loss of earnings and other rights, benefits, and emolu-
ments of employment he may have suffered by reason of Re-
spondent’s discrimination against him, with interest. Backpay
shall be computed in the manner set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as provided
in New Horizons for the Retarded, 283 NLRB 1173 (1987);
see also Florida Steel Corp., 231 NLRB 651 (1977), and Isis
Plumbing Co., 138 NLRB 716 (1962).
Respondent shall also be required to withdraw, rescind,
and expunge any and all references to Campbell’s discharge
from its files and notify him in writing that this has been
done and that the discharge will not be the basis for any ad-
verse action against them in future. Sterling Sugars, 261
NLRB 472 (1982).
Respondent shall also be required to preserve and, on re-
quest, make available to the Board or its agents for examina-
tion and copying, all payroll records, social security records,
timecards, personnel records and reports and all other records
necessary to analyze the amount of money due under the
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be waived for
all purposes.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
terms of the Order and to otherwise determine that the Order
has been fully complied with.
Posting of remedial notices at Respondent’s jobsites in-
cluding the Project Thunder site, if still underway, shall be
required. Further to ensure that all employees who were at
the Project Thunder site during the period July 15 to July 20,
1992 and are still in Respondent’s employ but are not now
working at Respondent’s jobsites have an opportunity to read
the notice, Respondent shall be required to mail a copy of
the notice to all of its current employees not now employed
at any of Respondent’s jobsites who worked at the Project
Thunder site during the period indicated.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following acts and conduct:
a. By making threatening and coercive statements to em-
ployees at a July 20, 1992 meeting with employees.
b. Interrogating employees about their union activities.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by discharging Edward W. Campbell because of his union
activities.
5. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Tualatin Electric, Inc., Wilsonville, Or-
egon, its owners, agents, successors, and assigns, shall
1. Cease and desist from
(a) Engaging in the following acts:
(1) Making threatening and coercive statements to employ-
ees because of their involvement in union activities.
(2) Interrogating employees about their union activities.
(b) Discharging employees because of their union activi-
ties and the union activities of other employees.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate and full reinstatement to employee
Edward W. Campbell to his former position at Project Thun-
der or, if that position no longer exists, to the same position
on another of Respondent’s projects to which Campbell
would have been transferred at the conclusion of his work
at the Project Thunder site, if any, but for Respondent’s
wrongful discharge of him.
(b) Make whole employee Edward W. Campbell for any
and all losses incurred as a result of Respondent’s unlawful
termination of him, with interest, as provided in the
(c) Expunge from its files any and all reference to the dis-
charge of employee Campbell and notify him in writing that
this has been done and that the fact of his wrongful dis-
charge will not be used against him in future personnel ac-
tions.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of money due under the terms of this Order and fur-
ther to ensure that the terms of this Order have been fully
complied with.
(e) Post at its main office and each of its jobsites where
employees are currently employed copies of the attached no-
tice marked ‘‘Appendix.’’11 Copies of the notice, on forms
provided by the Regional Director in English and such addi-
tional languages as the Regional Director determines are nec-
essary to fully communicate with employees, after being
signed by Respondent’s authorized representative, shall be
posted by Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that the notices are not altered, defaced, or covered by
other material. Further Respondent shall mail copies of the
notice to any of its employees not now employed on any of
Respondent’s projects but who worked at the Project Thun-
der Project at any time in the period July 15 to 20, 1992.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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
After a hearing at which we appeared and offered evidence
and argument, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice at our main office and all our
jobsites and to mail a copy of the notice to all our employees
not now working on a jobsite but who were working at
Project Thunder anytime during the period July 15 to 20,
1992.
Section 7 of the National Labor Relations Act gives employ-
ees these rights.
To organize
To form, join, or assist any union
137TUALATIN ELECTRIC
To bargain collectively through representatives of
their own choosing
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL abide by the following promises to you.
WE WILL NOT interfere with, restrain, or coerce our em-
ployees by telling them that if they support the International
Brotherhood of Electrical Workers they might as well get in
their vehicles and go to work somewhere else.
WE WILL NOT interrogate our employees about their union
activities.
WE WILL NOT discharge employees because of their union
activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
protected by Section 7 of the National Labor Relations Act.
WE WILL offer immediate reinstatement to employee Ed-
ward W. Campbell and WE WILL make him whole for any
and all losses of wages, benefits, seniority, and any other
emoluments of employment he may have lost, with interest,
as a result of his improper termination.
WE WILL rescind, remove, and expunge all references to
the improper discharge of employee Campbell in our records
and WE WILL notify him in writing that this has been done
and that our improper conduct will not a basis for any future
personnel actions against him.
TUALATIN ELECTRIC, INC.