White Electrical Construction Co.

National Labor Relations Board - Board Decisions

Sep 30, 2005

345 N.L.R.B. 1095 (N.L.R.B. 2005)

WHITE ELECTRICAL CONSTRUCTION CO.
345 NLRB No. 90
1095
White Electrical Construction Co. and Lance James.
Case 10–CA–35116
September 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 4, 2005, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The General
Counsel filed a limited exception, a supporting brief, and
an answering brief. The Respondent filed exceptions, a
supporting brief, and a reply brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings1 and conclusions only to the extent consistent with
this Decision and Order.2
We agree with the judge’s finding that the Respondent
violated Section 8(a)(1) of the Act by discharging
Stanley Vincent and then converting his discharge into a
final warning because he engaged in protected concerted
activity. For the reasons discussed below, we find, con-
trary to the judge, that the Respondent’s subsequent ter-
mination of Vincent and nine other night shift electri-
cians was not unlawful.
1. The discharge and final warning of Stanley Vincent
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) by discharging Vincent on
March 4, 2004,3 in the mistaken belief that he had en-
gaged in a work stoppage, and in converting the dis-
charge to a final warning when it learned that no work
stoppage had occurred. As the judge found, Vincent
(who was on a break at the time) asked a group of ap-
prentices who their journeyman was; when the appren-
tices’ foreman explained that two recently hired travelers
from another local union were the journeymen, the dis-
cussion ended. There was no stoppage or slowdown of
work. As the judge also found, in asking his question,
Vincent was trying to find out whether the Respondent
was complying with the ratio of journeymen to appren-
tices specified in the collective-bargaining agreement. In
attempting to enforce the contract, Vincent was engaged
in protected concerted activity. NLRB v. City Disposal

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We have modified the judge’s recommended Order and notice to
reflect the violation found.
3 All dates are 2004, unless otherwise indicated.
Systems, 465 U.S. 822, 840 (1984); Interboro Contrac-
tors, Inc., 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d
495 (2d Cir. 1967). Thus, when the Respondent termi-
nated him based on its mistaken belief that he engaged in
misconduct during the course of that protected activity,
the Respondent violated Section 8(a)(1). NLRB v. Bur-
nup & Sims, 379 U.S. 21 (1964). And although it can-
celled the discharge, the Respondent continued to act
unlawfully when it issued a final warning to Vincent.
Contrary to our dissenting colleague,4 and consistent
with Board law, our order simply forbids that which is
forbidden by the Act, as interpreted by the Supreme
Court. See Burnup & Sims, supra. We do not agree that
employers, under such an order, will refrain from disci-
plining employees for misconduct allegedly committed
during the course of protected activity. Rather, they will
investigate thoroughly and carefully, knowing that an
erroneous finding will result in a violation. Given the
underlying protected activity involved, we do not believe
that a thorough and careful investigation is inconsistent
with the Act and its remedial principles.
2. The March 7 terminations
On March 7, the Respondent terminated Vincent and
nine other night shift electricians, assertedly for unsatis-
factory work performance and low productivity. The
Respondent’s assessment was based in part on its super-
visors’ observance of slow work on the part of several of
the night-shift employees the night before.
The General Counsel alleged that the 10 employees
were discharged because they had engaged in concerted
activity—i.e., protesting Vincent’s discharge on March 4.
The judge found that the only evidence supporting this
allegation was the employees’ grumbling that the dis-
charge was unfair. He also found that, assuming that this
conduct was protected, the General Counsel had not es-
tablished that any member of the Respondent’s manage-
ment knew about it. The judge therefore found no
8(a)(3) or (1) violation under this theory, because he
found no evidence that the Respondent was motivated by
any concerted activity engaged in by these 10 employees.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). There
were no exceptions to this finding.
However, the judge found an 8(a)(1) violation under a
different theory. Because the Respondent had errone-
ously believed that Vincent attempted to cause a work
stoppage on March 3, and because supervisors had ob-
served Vincent and other members of the night shift
working inefficiently only three days later, the judge

4 The Respondent has not raised any contentions about the language
or scope of the order. Only our colleague has done so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
reasoned that the Respondent thought that Vincent and
the other discharged employees were engaged in a slow-
down of work on March 6. The judge concluded that the
Respondent discharged the employees for engaging in
the slowdown, not for low productivity, as the Respon-
dent argued. Because he found that the Respondent’s
belief was (again) erroneous, the judge found that the
discharges were unlawful under Burnup & Sims, supra.5
In exceptions, the Respondent contends that because
the night shift employees were not involved in any pro-
tected concerted activity on the night of March 6, the
judge erred in finding a violation under Burnup & Sims.
We agree. Burnup & Sims applies when an employer
terminates or disciplines employees for allegedly engag-
ing in misconduct in the course of protected activity. In
that setting, good-faith belief that the employees engaged
in misconduct, is not a defense if the General Counsel
proves that the employees did not, in fact, engage in the
misconduct. That is because, as the Supreme Court
stated, “A protected activity acquires a precarious status
if innocent employees can be discharged while engaging
in it, even though the employer acts in good faith.” 379
U.S. at 23.
The Burnup & Sims rationale does not apply, however,
when employees are not engaged in protected activity.
Thus, an employer does not violate the Act by terminat-
ing employees based on a mistaken belief that they en-
gaged in misconduct if their actions did not arise out of
any protected activity. See, e.g., Yuker Construction Co.,
335 NLRB 1072, 1073 (2001). Here, there is no evi-
dence that the night shift employees were engaged in
protected activity on March 6 or that the Respondent
believed that they were so engaged. Therefore, even if
they were innocent of any wrongdoing, the General
Counsel cannot prevail because their terminations did not
arise from any protected conduct.
The General Counsel urges in his answering brief that
the Board should, in any event, affirm the violation
found by the judge under an alternative Wright Line the-
ory. Thus, the General Counsel contends that the Re-
spondent bore animus toward Vincent for his protected
activity on March 3 and seized upon the night-shift em-
ployees’ conduct on March 6 as a pretext for retaliating
against Vincent and everyone associated with him.
We do not address the General Counsel’s alternate
theory because we find that it is not properly before us.
To prove a discharge violation under Wright Line, the
General Counsel must show that animus toward employ-

5 Because he found no evidence that the Respondent was motivated
by antiunion animus, the judge recommended dismissal of the allega-
tion that the discharges violated Sec. 8(a)(3). No exceptions were filed
to that finding or recommendation.
ees’ protected activities was a motivating factor in the
discharges. The judge specifically found that antiunion
animus did not play a part in the Respondent’s decision
to terminate Vincent and the other nine electricians, and
the General Counsel did not except to that finding.
Therefore, we find that the General Counsel is proce-
durally foreclosed from raising this issue for considera-
tion by the Board in his answering brief.6
For the reasons discussed above, we reverse the
judge’s finding that the Respondent violated Section
8(a)(1) by discharging Vincent and nine other night shift
employees, and we dismiss that allegation.7
ORDER
The National Labor Relations Board orders that the
Respondent, White Electrical Construction Co., Fairfield,
Alabama, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discouraging its employees from engaging in pro-
tected activity by discharging, warning, or taking other
adverse action against employees who have engaged in
such activity and did not engage in serious misconduct
during the course of that protected activity.
(b) 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 from the date of this Order, remove
from its files any reference to the unlawful discharge/
final warning issued to Stanley Vincent on March 4,
2004, and within 3 days thereafter notify him in writing
that this has been done and that the March 4 discharge/
final warning will not be used against him in any way.
(b) Within 14 days after the service by the Region,
post at its facility in Fairfield, Alabama and at the Mer-
cedes-Benz jobsite in Vance, Alabama copies of the at-
tached notice marked “Appendix.”8 Copies of the notice,
on forms provided by the Regional Director for Region

6 Board’s Rules and Regulations Sec. 102.46(b)(2) states that “Any
exception to a ruling, finding, conclusion, or recommendation which is
not specifically urged shall be deemed to have been waived.” See, e.g.,
FES, 333 NLRB 66 fn. 1 (2001).
7 In view of our decision, we find it unnecessary to pass on the Gen-
eral Counsel’s exception to the judge’s speculation that the night-shift
employees probably would have been laid off on March 9 for nondis-
criminatory reasons when the Respondent laid off 40 employees be-
cause of a loss of work.
8 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.”
WHITE ELECTRICAL CONSTRUCTION CO. 1097
10, after being signed by the Respondent’s authorized
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 gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 4,
2004.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER SCHAUMBER, dissenting in part.
Member Schaumber disagrees with his colleagues’ or-
der to the extent that it requires Respondent to cease and
desist from “[d]iscouraging its employees from engaging
in protected activity by discharging, warning, or taking
other adverse action against employees who have en-
gaged in such activity and did not engage in serious mis-
conduct during the course of that protected activity.” For
the reasons he expressed in his partial dissenting opinion
in Detroit Newspapers, 340 NLRB 1019 (2003), Member
Schaumber finds such an order incapable of being com-
plied with without impermissibly chilling lawful con-
duct. An employer cannot lawfully be enjoined from
disciplining an employee in the future based on the em-
ployer’s reasonable good faith belief that the employee is
engaged in serious misconduct. He would revise the
order in a manner consistent with the order he suggested
in Detroit Newspapers, supra.
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT discourage you from engaging in pro-
tected activity by discharging, warning, or taking other
adverse action against employees who have engaged in
such activity and did not engage in serious misconduct
during the course of that protected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
described above.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful
March 4 discharge/final warning of Stanley Vincent, and
WE WILL within 3 days thereafter, notify him in writing
that this has been done and that the March 4 dis-
charge/final warning will not be used against him in any
way.
WHITE ELECTRICAL CONSTRUCTION CO.
Gregory W. Powell, Esq., for the General Counsel.
Forrest W. Hunter, Esq. and Allison V. Richardson, Esq., for
the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Birmingham, Alabama, on October 20 and
21, 2004. Lance James, an Individual, filed the charge on July
22, 2004, and a complaint was issued August 31, 2004.1 On
September 8, an amended complaint issued alleging that White
Electrical Construction Co. (the Respondent), violated Section
8(a)(1) and (3) of the Act. Specifically, the amended complaint
alleges that the Respondent terminated Stanley Vincent on
March 4 and converted the termination to a final warning the
same day because Vincent engaged in union and other pro-
tected concerted activities, and that the Respondent terminated
10 named employees, including Vincent, on March 7, and
thereafter refused to rehire them and designated them as ineli-
gible for rehire, because the named employees engaged in un-
ion and other protected concerted activities.2
On September 15, the Respondent filed its answer to the
amended complaint, which it amended on September 30. The
Respondent denied the allegations regarding Stanley Vincent
and, while it admitted terminating the 10-named employees and
designating them as ineligible for rehire on and after March 7,
denied that it did so because they engaged in any activity pro-
tected under the Act. The Respondent also raised several af-
firmative defenses based upon Section 10(b) of the Act.

1 All dates are in 2004, unless otherwise indicated.
2 The named discriminatees are: Stanley Vincent, Chris Turner, Don
Malone, Lance James, Shane Myers, Steve Bell, John Roy Jones, Wil-
liam Vincent, Mike Guthrie, and James McCoy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
On the entire record, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, provides, inter alia, commer-
cial electrical wiring and distribution services out of its facility
in Fairfield, Alabama. The Respondent annually purchases and
receives for use in Alabama materials valued in excess of
$50,000 directly from suppliers located outside the State of
Alabama. The Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The Respondent further admits that
the International Brotherhood of Electrical Workers Local Un-
ion 136 (Local 136) is a labor organization within the meaning
of Section 2(5) of the Act.
A. The Evidence
The Respondent, an electrical contractor in the construction
industry, is headquartered in Atlanta and has branch offices in
several cities. The Birmingham branch office, located in Fair-
field, Alabama, was acquired about 2 years before the hearing
when the Respondent acquired Sargent Electric. The Respon-
dent has had a collective-bargaining relationship with the
IBEW for many years. The Birmingham branch office is a party
to the agreement between Local 136 and the Birmingham Divi-
sion, Gulf Coast Chapter of the National Electrical Contractors
Association (NECA). The current agreement is effective for the
period June 1, 2003, through May 31, 2006. The Respondent is
also party to a supplemental Industrial Market Recovery
Agreement (IMRA) between the Union and NECA intended to
assist union contractors in competition with nonunion contrac-
tors. The IMRA modifies the overtime, hours of work, jour-
neyman/apprentice ratio, and other provisions of the standard
inside wire agreement on jobs determined to be eligible under
the market recovery program.
In 2004, the Respondent’s Birmingham branch office had a
contract with RNG Mechanical to perform work at the Mer-
cedes-Benz plant in Vance, Alabama. RNG in turn had a con-
tract with Comau/Pico to install robotic assembly equipment in
two body shops at the Mercedes-Benz plant. Comau/Pico had
been hired by Mercedes-Benz to design, build and install the
robotic equipment. After designing, building and testing the
equipment in Detroit, and demonstrating it to Mercedes-Benz’
satisfaction, Comau/Pico broke down and shipped the equip-
ment to be installed at the Vance plant by RNG. RNG had hired
the Respondent to do the electrical installation. The Mercedes-
Benz job in Vance was covered by the IMRA.
Jerry Collar, the Respondent’s Birmingham branch manager,
was the lead management official responsible for this project.
Steve Wofford was the Respondent’s general foreman on the
job.3 Jerry’s brother, Don Collar, started the job as general fore-

3 At several places in the transcript, Wofford is identified as
“Walker.” This is obviously a typographical error as there is no evi-
dence of any other general foreman with the name Walker working for
the Respondent at this job. Accordingly, I shall correct the transcript to
replace Walker with Wofford wherever it appears.
man in late 2003 and became the safety coordinator after the
Respondent’s workforce on the job reached 50 employees,
sometime in February. The Respondent admitted that Jerry
Collar and Steve Wofford were its supervisors and agents
within the meaning of the Act and stipulated that Don Collar
was at least an agent in his role as safety coordinator. The Col-
lar brothers and Wofford are longtime members of Local 136
and have had a good working relationship with the Union over
the years.
The Respondent used the Local 136 hiring hall as its source
for electricians for the Mercedes-Benz job. The first journey-
man referred to the job started in December 2003. By early
March, the Respondent employed about 115 electricians, jour-
neymen and apprentices, on this job, working two 12-hour
shifts, 7 days a week. The Respondent started the night shift in
late February with two employees, John Roy Jones and Chris
Turner. By the time of the alleged unfair labor practice, there
were 14 journeymen working the night shift. All 10 alleged
discriminatees are journeymen electricians and members of
Local 136 who were referred to the job on various dates be-
tween January 15 and February 26.4 At the time of the alleged
unfair labor practice, all ten were working the night shift, from
5 p.m. to 3:30 a.m.
Stanley Vincent5 has been a journeyman and member of the
Union for 38 years. He had worked previously for the Respon-
dent on other jobs without incident. He was referred to the
Mercedes-Benz job on February 5. After working the day shift
for several weeks, he was transferred to nights, sometime in
late February. Vincent testified that, on the night of March 3,
while on break in a designated break area with the other nine
alleged discriminatees, he asked three apprentices who were
working nearby who was the journeyman on their shift. The
three apprentices were working over from the day shift. Ac-
cording to Vincent, he was concerned that the apprentices were
working alone when the contract required them to be working
under the supervision of a journeyman. In response to Vin-
cent’s question, the apprentices said they did not know who
their journeyman was. At that point, according to Vincent, Greg
Lowery, the day-shift foreman and another member of Local
136, came over and told Vincent that two travelers from Mobile
had been hired that day to be the journeymen. Vincent thanked
Lowery for the information and left.
Lowery, who testified as a witness for the General Counsel,
essentially corroborated Vincent’s version of this incident.6
Specifically, Lowery confirmed that Vincent and the night crew
were on break, that the apprentices were working nearby when
Vincent spoke to them, and that Lowery happened to walk by
during the conversation and provided the answer for the ap-
prentices. Lowery testified that he believed Vincent’s inquiry

4 Steve Bell was one of the first journeymen referred to the job, on
January 15. He became the night shift foreman when the Respondent
added this second shift in February. No party contends that Bell was a
supervisor or agent of the Respondent in his role as foreman.
5 Vincent’s full name is Robert Stanley Vincent. He is known among
his fellow journeyman as Stanley or “Sam.”
6 Lowery worked for Respondent as a foreman on the day shift from
December 2003 to March 2004. There is no contention, nor evidence,
that he was a statutory supervisor at the time.
WHITE ELECTRICAL CONSTRUCTION CO. 1099
was related to safety. Lowery also testified that all but four of
the 22 electricians on his crew were apprentices. Lowery testi-
fied further that, after this incident, he called his boss, Wofford,
because he believed that Vincent was questioning the Respon-
dent’s compliance with the journeyman apprentice ratio in the
collective-bargaining agreement and he didn’t want to get the
company or himself in trouble with the Union. According to
Lowery, he told Wofford that “we had some safety concerns
out here” and he asked Wofford if he was “inside the agree-
ment.” Wofford told Lowery that he was within the agreement,
not to worry about it and to continue working. Lowery testified
that later that evening, at the end of his shift, around 6:30 or 7
p.m., Wofford approached him in the break area. After asking
Lowery about the work to be done that night, Wofford gave
him the keys to all the gang boxes and told him not to let the
night crew into the gang boxes.7 Lowery also described a con-
versation he had the following morning, at the start of his shift,
with Jerry Collar. According to Lowery, Collar talked about the
work that had been done the night before and then asked him
who had the safety concerns. Lowery told Collar it was Vin-
cent. Collar asked if there was any work stoppage and Lowery
told him no, everything went okay.
Wofford testified for the Respondent. He acknowledged re-
ceiving a call from Lowery one evening in early March. Ac-
cording to Wofford, he was home at the time. Wofford recalled
that Lowery appeared “excited,” describing his tone of voice as
“frantic.” He testified that Lowery told him that someone on
night shift had come over and questioned the manpower in
terms of the ratio of apprentices to journeymen. With help from
leading questions by counsel, Wofford also recalled that Low-
ery told him that Lowery and his men were working, in a work
area, at the time. Wofford testified further that he assumed that
Lowery was trying to get something done and that the individ-
ual who raised the question was preventing them from doing
that. Wofford admitted on cross-examination that he reached
the conclusion that there had been a work stoppage as a result
of the issue being raised. In his direct testimony, Wofford
placed this incident in the context of receiving regular com-
plaints from representatives of Comau/Pico that the Respondent
was behind in its work. Wofford did not contradict Lowery’s
testimony about the conversation later that evening involving
the gang boxes.
Wofford testified that, after his conversation with Lowery,
he called Jerry Collar. According to Wofford, he informed Col-
lar what was going on, as relayed to him by Lowery. Specifi-
cally, Wofford told Collar that Lowery felt the guy who ques-
tioned him about the workforce was being disruptive. Wofford
also testified that he informed Collar that he had been told by
Lowery that Vincent was the individual who raised the issue
with Lowery. Collar told Wofford he would talk to Vincent the
next day. Wofford denied making any recommendations to
Collar about how the situation should be handled. He did recall
that he and Collar agreed that the Respondent was within the
ratios required by the collective-bargaining agreement.

7 Gang boxes, referred to erroneously in the record as “game boxes,”
are where the electricians keep their personal as well as company tools
for the job.
Collar corroborated Wofford regarding their phone call. He
testified that Wofford told him that Lowery was agitated and
had asked why this guy was bothering him about the ratios.
Collar recalled that Wofford also appeared upset because he felt
that Lowery’s work was being disrupted. According to Collar,
Wofford said Lowery was upset because he didn’t know
whether he should continue working if the Respondent was out
of compliance with the ratio. Collar told Wofford to tell Low-
ery to continue working that he believed they were in compli-
ance, and that he would look into the matter the next morning.
There is no dispute that Collar prepared the paperwork to fire
Stan Vincent the next morning, before speaking to Vincent,
Lowery, or anyone else about the matter. Collar explained that
he did this because there would be no one around to prepare a
final paycheck and termination notice after Vincent arrived for
work at 5:30 that evening. Collar testified that he had not yet
made a decision to fire Vincent but he wanted to be prepared to
do so if Vincent’s answers did not satisfy him. There is no dis-
pute that Jerry Collar had his brother Don Collar pick up Vin-
cent’s final paycheck and termination notice from the office
during the day on March 4. The termination notice stated that
the reason for termination was “failure to comply with com-
pany policy.”
Vincent testified that he arrived for work on March 4 at
about 5 p.m. While standing outside the job trailer with the
other nine employees on night shift, waiting to be taken to the
building where they would be working, Doug Holley, the day-
shift steward, came out of the trailer and told Vincent he had
been fired. Buddy McCoy, who had just been appointed the
night-shift steward, was standing with Vincent and his son,
William Vincent. McCoy said he would go into the trailer and
speak to Don Collar.8 McCoy came out of the trailer a short
time later and told Vincent that Don Collar said he had been
fired for a work stoppage. At this point, according to Vincent,
the other night crew members standing around started to grum-
ble that this was unfair, that there was no work stoppage, etc.
However, when the van pulled up to take the men to work, all
but Vincent, his son and McCoy got in and went to the plant.
When the van returned to the trailer, the Vincents and McCoy
got in and rode to the plant to find Jerry Collar. None of the
other nine discriminatees were called to testify about their
“grumbling” outside the trailer upon learning of Vincent’s ter-
mination. Don Collar corroborated Vincent and McCoy’s tes-
timony to the extent that he testified that he told Vincent that
“they had his money.” On cross-examination, Collar conceded
that this meant Vincent was terminated. Don Collar also testi-
fied that he told Vincent, when asked for a reason, that he
didn’t know why and that he recommended that Vincent find
Jerry Collar and talk to him.
Vincent testified that when they got to the plant, He asked
Wofford to call Jerry Collar. Shortly thereafter, Jerry Collar
rode up in a golf cart. It does not appear that William Vincent
was still present at this time because when Collar saw Vincent
and McCoy, he said, “[D]oes it take two people to do this?”
McCoy told Collar that he was the steward for the night shift,

8 Don Collar is usually in the trailer when the night shift comes on
duty.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
indicating he was there to represent Vincent. According to Vin-
cent, he explained what had happened the night before, an-
swered some questions from Jerry Collar and specifically de-
nied that he had caused or intended to cause a work stoppage.
Although Vincent testified that he could not recall all the ques-
tions Collar asked him, he did not recall being told, “next time,
get a steward.” At the end of this conversation, Collar took the
final paycheck he had prepared for him, put it in his pocket and
said, “[T]his is your final warning. Now go to work.” McCoy
corroborated Vincent’s version of this conversation.
Jerry Collar testified that he met with Vincent and McCoy at
the start of the night shift on March 4. He asked Vincent what
he was doing in Lowery’s area talking to Lowery and the ap-
prentices. He told Vincent that he had his own job to do. Ac-
cording to Collar, Vincent said he was sorry for any confusion,
that he was just checking on the work being done in that area,
that he knew there were a lot of apprentices there and he was
concerned for their safety. After Vincent apologized again for
any “inconvenience,” Collar told him that’s what the stewards
were for, that it was not something Vincent should be con-
cerned with. He ended the conversation by telling Vincent he
needed to go on back to work. Collar denied telling Vincent
that this was his final warning. According to Collar, after his
meeting with Vincent and McCoy, he wrote, “cancelled” across
the face of the termination notice, a copy of which is in evi-
dence. Collar did not recall ever handing Vincent the termina-
tion notice or his final paycheck. Collar testified further that he
considered the matter closed after this conversation. He denied
bearing any animosity toward Vincent over the incident.
There is no dispute that the Respondent in fact terminated
Stanley Vincent on March 7 along with nine other electricians
from the night crew.9 Jackie Goodwin, Local 136’s business
manager, testified that Jerry Collar called him that day to in-
form in accordance with the terms of the collective-bargaining
agreement that the union steward, Buddy McCoy, had been
terminated. Goodwin testified further that Collar called him
again within a few days and said that the 10 terminated em-
ployees were ineligible for rehire. The Respondent has admitted
this. According to Goodwin, the reason given by Collar was
that “the owner wasn’t happy with the performance of the night
shift and wanted them off the job.” The Respondent did not
terminate the entire night shift, however. It retained four elec-
tricians, brothers Barry and T.J. Maddox, Royce Fant, and Greg
Clark, who had recently been referred to the job. There is no
dispute that the 10 terminated employees were the only electri-
cians terminated from this job for performance and that none
had received any prior warnings or discipline before their ter-
mination on March 7.
Vincent testified that he first learned that he was being ter-
minated again when he arrived for work on March 7. Vincent
recalled that Jerry Collar rode up to the trailer while the night
crew was waiting for its ride to the plant. Collar had the gang
box with the employees’ tools on the back of the vehicle. He
handed out the employees’ final checks and termination notices
and told them they’d been fired. According to Vincent, Collar
did not give a reason and none of the employees asked why

9 See fn. 2 above.
they were being fired. Vincent conceded that Collar made no
mention of the earlier incident involving him when he termi-
nated the 10 employees. The termination notices given to the 10
employees were identical, with the boxes for “lack of produc-
tivity” and “other” checked under “reason for termination” and
the words, “unsatisfactory work” written in the explanation
section.
McCoy, the steward for the night shift, testified that he first
learned of the termination earlier that day when he received a
call from a secretary in Respondent’s office telling him to re-
port to the jobsite to pick up his last check and tools. When
McCoy asked the secretary what was going on, she said if he
had any questions to ask the foreman. McCoy told her he would
report to the job at the normal starting time. McCoy testified
that when he reported to the trailer at the start of his shift, he
saw Jerry Collar and asked him what was going on. Jerry Collar
told him the entire night shift was being terminated and were
not allowed back on the property. McCoy protested the termi-
nation, telling Collar it wasn’t right, that they had done nothing
wrong. He also asked Collar about the other four members of
the night shift who were not being terminated. According to
McCoy, Collar said those four hadn’t been on the job long
enough to see if they would work out. McCoy then asked Col-
lar if he was singling him out. According to McCoy, Collar
replied in the affirmative, telling McCoy if he had a problem
with that, he should talk to Jackie Goodwin. McCoy is the only
one of the 10 terminated employees to pursue the matter
through the grievance procedure. None of the other eight al-
leged discriminatees testified in this proceeding.
Jerry Collar testified that he made the decision to terminate
the 10 night-shift electricians. According to Collar, the Re-
spondent was under increasing pressure from Comau/Pico’s
representative on the job, Richard Saro, to meet contractual
deadlines for different phases of the job. Collar testified that he
was meeting with Saro on a daily basis in March over Saro’s
complaints that things were not getting done on time. Collar
characterized these meetings as “adversarial” and “tense.” Col-
lar testified that Saro complained more about work not getting
done on nights than days. Wofford also testified that the Re-
spondent started having problems meeting targets for comple-
tion of work in February and March. According to Wofford,
these problems were emanating from the night shift, which did
not even begin until late February. Wofford testified that he
was receiving reports from the foremen on the day shift that
work left for the night shift to complete was not getting done.
The Respondent also called Saro as a witness to corroborate the
testimony regarding these problems. Saro arrived on the job in
the first week of February. He testified that even before he got
there, he was receiving complaints from his employees on the
job about the Respondent not meeting time targets. Once he
arrived on the job, Saro held daily meetings with Jerry Collar to
define objectives for each shift and to review performance.
Saro testified that the Respondent routinely failed to meet these
objectives and he frequently had to “yell at Jerry” about this.
Saro also testified that he was receiving reports from the Co-
mau/Pico mechanics and electrical leads who worked the night
shift about the lack of productivity of that crew. Saro recalled
that of the two electrical leads he had working nights, John
WHITE ELECTRICAL CONSTRUCTION CO. 1101
Routly and Jeff Flugie, Flugie complained more, calling Re-
spondent’s electricians “bums.” On cross-examination, Saro
acknowledged that he was receiving complaints about both the
day and the night shifts.
Despite the apparent seriousness of the Respondent’s failure
to meet time targets and the adversarial nature of its meetings
with Comau/Pico, the Respondent produced no documentation
to support this testimony. The Respondent’s witnesses ac-
knowledged that there were schedules and other documents that
would show when certain work was expected to be completed,
but claimed there were no records showing what work was left
undone. The Respondent’s witnesses also claimed that there
were no written memos or other documents regarding Co-
mau/Pico’s complaints about the Respondent’s performance of
its portion of the contract. The General Counsel sought an ad-
verse inference from the Respondent’s failure to produce such
evidence to support its claims. I reserved ruling on the General
Counsel’s request and shall rule on it later in this decision.
Collar testified further that, on March 6, 3 days after the in-
cident with Stanley Vincent, he and Wofford stayed late to
observe the night shift’s performance of a “hot job.” According
to Collar, the Respondent had a commitment “cast in stone” to
complete a cable pull at one end of the building.10 There is no
dispute that the day shift had started the task and had left it for
the night shift to finish. Collar testified that he and Wofford
stood in plain view and watched a group of 8 to 10 of his elec-
tricians milling around for 10–15 minutes before their sched-
uled break, after they had set the reels and prepared to pull the
cable. After milling around, the employees went on their 15-
minute break but did not return until 25 minutes later and only
then did they proceed to pull the wire. According to Collar,
Wofford left when the employees went on break, telling Collar
that he felt like “he had been slapped in the face.” Collar re-
mained observing the employees for another 45 minutes before
he too went home.
Collar admitted that he never approached the employees to
inquire why they were milling around, or to question them
about the length of their break, or even to simply tell them to
get back to work. In fact, he and Wofford said nothing to the
employees that night. Collar also acknowledged that regular
Night Shift Foreman Steve Bell was not working that night and
that the night-shift steward, McCoy, and the Charging Party,
James, were not assigned to the wire pull but were working
elsewhere that evening. Collar also admitted, during cross-
examination, that the day shift had set the reels from which the
wire was to be pulled in the wrong location and that the night
shift had to break down the reels and move them before it could
pull the wire. However, Collar said that it did not take the crew
long to re-set the reels.
Jerry Collar testified that the following day, March 7, when
he arrived on site, he asked Wofford if the wire pull had been
completed. Wofford told him it had. Collar then asked if any
other work had been done and Wofford said that the night shift
was supposed to have cable or wire pulled at another location
(the pick and place line) but did not finish that job. Wofford
also told Collar that even the portion of the work they did finish

10 Several witnesses also refer to the cable pull as a wire pull.
had been done improperly and had to be reworked. According
to Collar, after confirming this information with Homer Allen,
the foreman on the day shift who was responsible for that part
of the job, he generated the paperwork to terminate everyone on
the night shift except those four electricians who had just
started on the shift that week. Collar testified further that he
decided to terminate this group without making any individual-
ized determination regarding each employee’s responsibility for
the lack of productivity and even though he was aware that
several employees from the day shift had worked over that
evening on the wire pull. According to Collar, “[T]his was the
group of people he had a problem with based on what he had
observed and the reports he had been getting in the previous
week to 10 days.” Collar specifically denied that the incident
involving Stanley Vincent on March 3 had anything to do with
his decision.
Collar testified that, after making his decision, he telephoned
the Union’s business manager because, under the contract, he
had to notify the Union if a steward was going to be terminated.
Collar met the employees as they arrived for work and gave
them their final paychecks and the termination notices. Collar
testified that he specifically told the employees what he had
observed on the wire pull and that he was getting complaints
from the customer about their productivity. According to Col-
lar, he told the employees that the customer was not satisfied
with their work and did not want them on the site. That same
day, before meeting with the employees, Collar met with Saro
and told him that he had taken care of the problem without
specifying that he had fired the night shift. According to Collar,
Saro replied that he was tired of hearing this and informed Col-
lar that the Respondent had decided to remove another part of
the job, that had not yet started, from the Respondent and to
bring in 40 electricians from Detroit to perform this work. Col-
lar testified that, after his meeting with Saro, he looked at the
work to be taken away and laid off another 40 electricians who
would have worked on that portion of the job. The termination
notices for these layoffs show that most occurred the following
Tuesday, March 9. There is no dispute that the Respondent
subsequently won back the work from Comau/Pico and has
been permitted to finish the job. Hiring Hall records in evidence
show that the Respondent called Local 136 for electricians
beginning in late April and continuing through May. Some of
the 30–40 electricians referred out to the job after April were
still working there at the time of the hearing. Because the Re-
spondent had designated the alleged discriminatees as ineligible
for rehire, none were referred as the work increased.
Wofford corroborated Collar’s testimony regarding their ob-
servation of the wire, or cable, pull on March 6 and their dis-
cussions the next morning regarding what other work had been
done by the night shift. Wofford did not make any recommen-
dation that the crew be fired but he agreed with Collar’s deci-
sion when he learned of it later that day. According to Wofford,
Collar told him he made the decision to terminate the crew
because of the accumulation of everything that had been going
on for several weeks with the wire pull being the last straw.
Wofford denied that Collar mentioned anything about Vin-
cent’s activities on March 3 in connection with this decision.
Saro also corroborated Collar’s testimony about their conversa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
tion in which Collar said he had taken care of the problem and
Saro informed him that Comau/Pico was removing work from
the Respondent. Saro testified that the decision to take work
away from the Respondent had been made before this conversa-
tion and was in the process of being implemented. In fact, the
40 electricians from Detroit arrived at the job on March 10.
These contractors left the job on March 24. Saro denied that
there were any problems with the work done by the contractors
from Detroit.
The Respondent also called Don Collar, the Respondent’s
safety coordinator on the Mercedes-Benz job, to testify about a
conversation he had with John Roy Jones, one of the alleged
discriminatees, in February. Jones and Chris Turner were the
only two employees on night shift when it started. According to
Collar, they would come into the trailer every day before the
start of their shift to sign the roster. Collar testified that about a
week after the number of employees on the night shift in-
creased from 2 to 12 or more, Jones came in the office and told
Collar that the “night shift was messing up,” “they’re not doing
right” and Jones “did not want to be part of it.” Collar testified
that Jones did not provide any specifics in this conversation.
Jones told Collar he was thinking about going back on days.
Don Collar offered to help Jones get back on days but Jones
came back later and said he would stick it out. Don Collar told
his brother Jerry and Wofford about this conversation the next
day because he considered Jones’ concerns a safety issue.
There is no evidence that either Jerry Collar or Wofford pur-
sued the matter further until the incidents at issue here.
In anticipation of the Respondent’s defense, the General
Counsel called John Routly as a witness. As noted above,
Routly was one of the two electrical leads, or supervisors, for
Comau/Pico working on the night shift at the Mercedes-Benz
job. Routly reported to Bob Talley at Comau/Pico. He testified
that Saro was in upper management with the Company and
ordinarily did not deal with manpower issues. Routly testified
further that he was responsible for making sure that “hit list”
items left over from the day shift were completed. This was
work in addition to the contractual installation work the Re-
spondent was expected to do.11 Routly had regular contact with
Steve Bell, the Respondent’s night-shift foreman and one of the
alleged discriminatees. He and Bell would go over the work to
be done each night and Bell would then lay out the work for his
crew. According to Routly, the Respondent’s night shift was
split between electricians assigned to installation work and
electricians assigned to work with Routly on the hit list. In his
role as electrical lead for the General Contractor, Routly had an
opportunity to observe the work of the Respondent’s electri-
cians. He testified that, in his opinion, their work was good,
allowing for the fact that some of the Respondent’s electricians
were new to this type of installation work. Routly testified that
he and Bell were working with the crew, finding out where
each individual’s strengths were and assigning them where they
could work best. He also testified that he saw no difference in
the quality of work done by the day and night shifts. Although
Routly acknowledged that the night shift was completing only

11 This “hit list” appears to be in the nature of a punch list typical of
construction sites.
about 50 percent of the hit list each night, he attributed this to a
lack of manpower. In fact, Routly testified that he noted this on
the bottom of each list at the end of the shift.12
Routly testified that the weekend of March 6 and 7 was his
weekend off and he was not there for the wire pull or the termi-
nation of the night crew. Routly learned that the Respondent
had terminated the crew when he returned to work. According
to Routly, it was shortly after this that Comau/Pico stopped
using the Respondent to install the tooling and brought in a
crew of nonunion contractors from Detroit. Routly described
this period as a “madhouse,” testifying that the Detroit crew
was trying to do 60 days worth of work in 2 weeks. According
to Routly, he was still trying to repair the work done by the
Detroit electricians at the time of the hearing.
The General Counsel also questioned Vincent about the wire
pull on March 6. Vincent testified that Bell was not working
that night. Chris Turner, who was acting foreman, assigned him
to work on the wire pull. According to Vincent, Andy Harding,
an electrician on the day shift, who was in charge of this wire
pull that day, stayed over on the night shift with three appren-
tices to finish it.13 Harding told Vincent and the other night-
shift electricians assigned to this task what was left to be
done.14 The crew first had to break down and move the reels
because they had been set up by the day shift in the wrong
place. Because the wire was going into an overhead conduit,
the crew needed to locate and set up a scissors lift and one of
the crew had to stand on the lift and pull up the cable to feed it
into the conduit. In addition, because of the distance from the
reels and the end of the pull, someone had to stand in the mid-
dle to facilitate communication between the men feeding the
wire at one end and those pulling it at the other. Vincent ac-
knowledged that the crew went on break after setting up the
pull and performed the pull after break. Vincent explained that
they did this because it was almost break time when they com-
pleted the set up and they did not want to start the pull and have
to stop for break before it was done. Vincent recalled that it
took 35–40 minutes to do the pull and he did not think there
was anything out of the ordinary about this particular job.
On cross-examination, Vincent admitted that, after his termi-
nation, he asked the Union’s business manager, Jackie Good-
win, about getting his termination slip changed so he could
apply for disability. Apparently as a result of conversations
between Goodwin and Jerry Collar, Vincent’s termination slip
was changed. The new termination notice, which is dated
March 8, has the box “other” checked under reason for termina-
tion with the following explanation written in: “physically un-
able to perform the work required as an electrician.” While
acknowledging that he requested this change, Vincent denied
using the revised notice to apply for disability. At the time of
the hearing, Vincent was still seeking work as an electrician.

12 The Respondent offered no such documents into evidence.
13 It is undisputed that Harding and the day-shift apprentices were
not terminated as a result of the wire pull.
14 Vincent recalled that alleged discriminatees Don Malone, Mike
Guthrie, and his son William Vincent were also assigned to the wire
pull.
WHITE ELECTRICAL CONSTRUCTION CO. 1103
As previously noted, steward McCoy was the only one of the
alleged discriminatees to file a grievance under the collective-
bargaining agreement over his termination. McCoy testified
that he attended a labor/management meeting at the apprentice-
ship school to discuss his grievance on May 6. The Union was
represented by Business Manager Jackie Goodwin, his brother
Randy Goodwin, the Local’s president and business representa-
tive, and Herbert Prestidge, a representative of the IBEW. On
the management side were Gene Jernigan, the assistant chapter
manager for NECA in Birmingham, Dave Roberts, NECA’s
Southern Region director, Jerry Collar and Wofford for the
Respondent and two other officials from NECA. McCoy testi-
fied that he asked Wofford during this meeting, “Steve, I’ve
worked for you before, didn’t I do a good job?” and that Wof-
ford said, “yes.” When McCoy then asked what was the prob-
lem now, Wofford replied, “[O]ff the record, you didn’t do
anything wrong, we wanted to get rid of one guy and you all
got caught up in it. We should have got rid of this person before
you guys got there.” According to McCoy, Wofford did not
identify the individual he was talking about. Although this
statement was made in the presence of everyone at the meeting,
no one said anything in response.
The Respondent called the Goodwin brothers and Jernigan,
in addition to Jerry Collar and Wofford, to dispute McCoy’s
testimony about the May 6 meeting. All of these witnesses
recalled an exchange between McCoy and Wofford similar to
that described by McCoy but their version of Wofford’s answer
to McCoy’s question differs from his testimony. Jerry Collar
recalled that Wofford said, “[B]y and large, sometimes a couple
of people can be caught up in these kinds of terminations, but
they’re all grown men and they all have to be able to contribute
to what they’re doing.” Wofford recalled that he said,
“[T]here’s a lot of people kind of—seemed to me you got
caught up in it, and—but done nothing about it.” Wofford ex-
plained that he was referring to the alleged lack of productivity
by the night shift and the failure of anyone to try to improve the
situation. Jernigan testified that he heard Wofford say that he
felt “McCoy was just caught up in a situation of being fired.”
Jackie Goodwin testified that all he heard Wofford telling
McCoy was “something to the effect of you could have got
caught up in it.” Finally, Randy Goodwin testified that he re-
membered Wofford telling McCoy that he never had any prob-
lems with him in the past and then, adding, “[T]his is off the
record, a couple of you guys might have got caught up in it.”
Randy recalled that there was further discussion between
McCoy and Wofford but he didn’t hear everything that was
said. All of the Respondent’s witnesses denied hearing Wofford
say that the Respondent had terminated McCoy or the others in
order to get one employee. The Respondent also offered the
formal minutes of the meeting maintained by NECA which, as
to be expected, contain no reference to any conversation be-
tween McCoy and Wofford.
The General Counsel also offered records from the Union’s
hiring hall showing referrals made by Local 136 to the Mer-
cedes-Benz job after the termination of the alleged discrimina-
tees and confirming that the four night-shift electricians who
were not terminated on March 7 continued to work at the site
until they were laid off as work decreased. The General Coun-
sel also offered payroll records from the Respondent showing
that two of the alleged discriminatees, Bell and Jones, were
hired by a different branch office of the Respondent to work at
other jobsites after their terminations, notwithstanding the des-
ignation as ineligible for rehire. Collar testified that he had no
control over the hiring done by other branch managers at other
job sites outside his jurisdiction.
B. Analysis
1. The case of Stanley Vincent
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act on March 4 by discharging Stanley
Vincent, then converting his discharge to a final warning, be-
cause he engaged in union and protected concerted activity.
The General Counsel’s theory of the case is that Vincent’s
questioning of the apprentices on March 3 was protected be-
cause it was an attempt by him to enforce the collective-
bargaining agreement between the Respondent and Local 136.
See NLRB v. City Disposal System, 465 U.S. 822, 840 (1984);
Interboro Contractors, 157 NLRB 1295, 1298 (1966), enfd.
388 F.2d 495 (2d Cir. 1967). The Respondent denies that it
terminated, or issued any warning to, Vincent as a result of this
incident. Under the Respondent’s view of the evidence, Jerry
Collar had not made a final decision to terminate Vincent when
he met with him and McCoy on March 4, but was merely inves-
tigating the reports he had received the night before suggesting
that Vincent was causing a work stoppage. Once Collar was
satisfied that there had been no work stoppage, he permitted
Vincent to return to work and wrote cancelled on the termina-
tion slip he had prepared in case Vincent’s answers to Collar’s
questions were unsatisfactory. The Respondent denied that it
issued any warning to Vincent as a result of this incident.
The Supreme Court, in City Disposal Systems, supra, ap-
proved of the Board’s interpretation of Section 7 of the Act as
including, within the definition of “concerted activity,” an indi-
vidual employee’s “reasonable and honest invocation of a right
provided for in his collective-bargaining agreement.” Such
activity falls within the “mutual aid and protection” clause even
if the individual employee has his own interests most immedi-
ately in mind. 465 U.S. at 830. The Court agreed with the
Board that the employee did not have to make an explicit refer-
ence to the collective-bargaining agreement when invoking his
rights as long as it was reasonably clear that the right asserted
was one encompassed by the agreement. Id. at 839–840. The
Court also agreed with the Board that an employee’s invocation
of a perceived contractual right was protected regardless of
whether the employee turned out to have been correct in his
belief as to his rights. Id. at 840. See also Interboro Contrac-
tors, supra. Accord: Union Carbide Corp., 331 NLRB 356
(2000).
There is no question here that Stanley Vincent was engaged
in protected concerted activity when he asked, first the appren-
tices, then the foreman, who was their journeyman. This ques-
tion was obviously related to the journeyman: apprentice ratio
established in the collective-bargaining agreement and the
IMRA, which in turn relates to the safety of the job. The fact
that Vincent was not the steward is immaterial since the Act
protects employees as well as stewards in their efforts to en-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
force a collective-bargaining agreement. It is also clear that the
Respondent perceived Vincent’s inquiry to be a question re-
lated to its compliance with the contract. Thus, Lowery ex-
pressed his concern to Wofford whether he was working
“within the agreement” and Wofford and Jerry Collar discussed
the contractual ratio during their telephone conversation about
Lowery’s report. In fact, Collar even told Wofford that they
would look into the ratios the next day. The protected nature of
Vincent’s activity and the Respondent’s knowledge of it is
plainly established by the evidence.
It is also clear from the evidence that Jerry Collar made a de-
cision to fire Vincent, based on the report he received from
Wofford, in the belief that Vincent was slowing down or inter-
fering with the work of the apprentices. I do not credit Jerry
Collar’s testimony that no decision had been made before he
met with Vincent and McCoy. McCoy and Vincent credibly
testified that Vincent was told when he arrived for work that he
had been fired. This testimony was bolstered by that of Don
Collar, a witness for the Respondent, that he recommended to
Vincent that he go to the job and find Jerry to see about getting
his job back. Don Collar’s testimony contradicts Jerry Collar’s
testimony that he sought out Vincent to investigate the reports
he had received the night before.
The testimony of Lowery, who I found to be a credible wit-
ness, establishes that Vincent did not in fact cause any interrup-
tion in work. Moreover, the brief duration of his questioning
could not have had any significant impact on the ability of the
apprentices to carry out their duties. If Collar had terminated
Vincent because he believed Vincent caused or attempted to
cause a work stoppage, the termination would be unlawful un-
der NLRB v. Burnup & Sims and its progeny.15 Under these
cases, an employer violates Section 8(a)(1) if it is shown that
the discharged employee was engaged in a protected activity,
that the employer knew it was such, that the basis of the dis-
charge was an alleged act of misconduct in the course of that
activity and the employee was not in fact guilty of the alleged
misconduct. An unfair labor practice will be found regardless
of the employer’s motive or good faith belief that the miscon-
duct occurred.16
Although I have found that Jerry Collar made a decision to
terminate Vincent on March 4, and went so far as to prepare his
final paycheck and termination notice with the intent of imple-
menting the decision when Vincent arrived for work, he can-
celled the termination after speaking to Vincent and McCoy.
This raises the issue whether the Respondent cured any unfair
labor practice committed by Collar’s decision to terminate Vin-
cent. In Passavant Memorial Area Hospital,17 the Board held

15 379 U.S. 21 (1964). See also La-Z-Boy Midwest, 340 NLRB 80
(2003); Shamrock Foods Co., 337 NLRB 915 (2002), enfd. 346 F.3d
1130 (D.C. Cir. 2003). Although most often applied in the context of
allegations of strike misconduct, Burnup & Sims itself and the above-
cited cases arose in the context of other Sec. 7 activity similar to that
engaged in by Vincent here.
16 For this reason, the Board’s test for determining motivation,
adopted in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), is inapplicable. See Felix Industries, 331 NLRB 144
(2000).
17 237 NLRB 138 (1978).
that, in certain circumstances, an employer may relieve itself of
liability for unlawful conduct by repudiating the conduct. To be
effective, such repudiation must be “timely,” “unambiguous,”
“specific in nature to the coercive conduct,” and “free from
other proscribed illegal conduct.” In addition, there must be
adequate publication of the repudiation to the employees in-
volved and there must be no proscribed conduct on the em-
ployer’s part after the publication. Finally, the Board has noted
that such repudiation should give some assurance to the em-
ployees that in the future the employer will not interfere with
their exercise of Section 7 rights. Id. at 138–139. Accord:
United Refrigerated Services, 325 NLRB 258 (1998).
I find that the Respondent did not cure the unfair labor prac-
tice when it rescinded Vincent’s termination. Although the
cancellation of the discharge was timely, unambiguous and
specific to the unlawful conduct, it was followed immediately
by a “final warning” to Vincent not to engage in the same pro-
tected activity. I credit the testimony of McCoy and Vincent
that Jerry Collar did issue a final warning before sending Vin-
cent back to work. I note further that Jerry Collar himself testi-
fied that he advised Vincent to go through his steward in the
future. This “advice” diminished Vincent’s right recognized in
City Disposal Systems, supra, to seek enforcement of the collec-
tive-bargaining agreement without having to find a steward.
Collar’s warning to Vincent, which itself was an unfair labor
practice, also failed to give any assurance that the Respondent
would not interfere with employees’ rights in the future. Fi-
nally, as will be discussed, infra, the Respondent’s subsequent
termination of Vincent and the other nine employees on the
night shift was an additional unfair labor practice that under-
mined the effectiveness of the Respondent’s repudiation of
Vincent’s unlawful discharge on March 4.
Accordingly, based on the above and the record as a whole, I
find that the Respondent violated Section 8(a)(1) of the Act, on
March 4, by discharging Stanley Vincent and converting the
discharge to a final warning.18
2. The termination of the night shift
The complaint alleges that the Respondent also violated Sec-
tion 8(a)(1) and (3) of the Act, on March 7, by discharging
Vincent again along with nine other electricians who worked on
the night shift with him, and by thereafter declaring these ten
employees ineligible for rehire.19 According to the General
Counsel’s theory of the case, the Respondent was motivated by
the concerted activity of these 10 employees in protesting the
unfair termination of Stanley Vincent on March 4 and/or its
desire to conceal an unlawful motive for the March 7 termina-
tion of Vincent. Although the Respondent admits terminating
the 10 alleged discriminatees and declaring them ineligible for
rehire, it denies that its action was motivated by any union or
other protected activity on their part. The Respondent contends
that its sole reason for terminating the night shift employees
was their lack of productivity on the job, which was generating
complaints from its customer, Comau/Pico.

18 I find it unnecessary to determine whether the discharge and final
warning also violated Sec. 8(a)(3) of the Act because this additional
finding would not affect the remedy.
19 The 10 alleged discriminatees are identified in fn. 2 above.
WHITE ELECTRICAL CONSTRUCTION CO. 1105
Because resolution of this allegation turns on employer mo-
tivation, the Board’s decision in Wright Line, supra, applies. In
that decision, the Board held that the General Counsel must
first establish, by a preponderance of the evidence, that union
or protected concerted activity was a “motivating factor” in the
decision to discharge an employee. In order to meet his initial
burden, the General Counsel must show that the employee was
engaged in protected activity, that the employer was aware of
this activity and that the employer exhibited animus against
such activity. The Board has approved reliance upon circum-
stantial evidence to establish elements such as knowledge and
animus, acknowledging the reality that direct proof of motiva-
tion will seldom be available. Naomi Knitting Plant, 328 NLRB
1279 (1999); Abbey’s Transportation Services, 284 NLRB 698,
701 (1987), enfd. 837 F.2d 575 (2d Cir. 1988). Only if the Gen-
eral Counsel has made the requisite showing will the burden
shift to the Respondent to “demonstrate [by a preponderance of
the evidence] that the same action would have been taken even
in the absence of the protected conduct.” Id. See also NLRB v.
Transportation Management Corp., 462 U.S. 393, 399–403
(1983). Where an employer asserts, as here, that some type of
employee misconduct was the reason for discharge, the em-
ployer “does not need to prove that the employee actually
committed the alleged offense. It must show, however, that it
had a reasonable belief the employee committed the offense,
and that the employer acted on that belief in taking the adverse
action against the employee.” Midnight Rose Hotel & Casino,
343 NLRB 1003 (2004).
The only evidence of protected activity on the part of the
nine discharged electricians other than Vincent is the testimony
of Vincent and McCoy that these nine employees were present
when Don Collar announced that Vincent had been fired for
causing a work stoppage and protested that the firing was un-
fair. It is not clear from the testimony of these two witnesses,
however, that Don Collar was even aware of the “protest.”
There is also no evidence that Jerry Collar, who made the deci-
sion to fire the 10 employees, was aware of any concerted pro-
test by these employees. Thus, even assuming that the grum-
bling of the employees about Vincent’s discharge on March 4
was concerted activity protected by the Act, the General Coun-
sel has not established knowledge of this activity by the Re-
spondent.20 On the evidence in the record, I am not persuaded
that the Respondent’s discharge of the ten electricians was mo-
tivated by any concerted activity actually engaged in by this
group of employees.
Although this finding would ordinarily end the matter, the
General Counsel has posited an alternative theory that is more
difficult to dismiss. The General Counsel argues that the Re-
spondent’s real reason for discharging these 10 employees was
the Respondent’s animus toward Vincent resulting from his
perceived attempt to cause a work stoppage on March 3. The

20 The concerted protest of Vincent’s discharge, as described by the
only witnesses called by the General Counsel, did not amount to much.
According to Vincent, after some of the employees expressed their
opinion that his discharge was unfair, they got in the van and rode up to
the building to go to work. There is no evidence that any of the em-
ployees pursued their protest beyond this limited activity.
Respondent’s decision to terminate 10 of the 14 employees on
the night shift occurred just 3 days after its failed attempt to
terminate Stanley Vincent for engaging in what the Respondent
erroneously believed was a work stoppage. When Jerry Collar
and Wofford observed Vincent and several coworkers perform-
ing the wire pull on March 6, it must have appeared to them
that this was a further effort by these union members to cause a
slow down in the work. Jerry Collar’s decision the following
day to terminate almost the entire crew, even those who were
not at work or were working in a different location, may well
have been motivated by a lingering belief that these union
members were engaged in a concerted effort to interfere with
productivity on the job. The statement made by Wofford at
McCoy’s grievance meeting 2 months later, that McCoy “got
caught up in” a situation, suggests that more was involved than
a concern over lack of productivity by these 10 employees.21
It is clear from Jerry Collar’s own testimony that he was not
motivated by any particular deficiency on the part of the indi-
vidual employees when he made his decision to terminate these
ten employees. In fact, only four of the ten were working on the
wire pull that was the triggering event. Neither Collar, nor any
other witness for the Respondent, cited any specific basis for
determining that the other six employees were not being pro-
ductive. The Respondent offered the testimony of Saro in an
attempt to bolster its claim that the night shift was the cause of
the Respondent’s inability to meet contractual deadlines. Saro,
however, was contradicted by his own supervisor, Routly, who
was working the night shift with this crew and had no com-
plaints with the amount or quality of work they were doing. Of
all of the witnesses who testified about the productivity issue, I
found Routly to be the most credible because he had no reason
to lie and was testifying adverse to his employer. As Routly
credibly testified, the reason the night shift was unable to com-
plete all its assignments was a lack of manpower, not any slack-
ing off on the part of the employees. It must also be remem-
bered that there were only 14 employees on the night shift as
opposed to 100 or more on the day shift, that the night shift had
only been in operation for a couple weeks by March 6, and that
some of the employees on the shift were diverted from contract
installation work to working for Routly on the punch list. Under
these circumstances, it is unlikely that the night crew was the
cause of the problems Respondent was having in satisfying
Comau/Pico’s demands.
The Respondent’s case was also undermined by the total lack
of any documentary evidence to support its claims that the
night shift was responsible for the Respondent’s failure to meet
deadlines. I find the testimony of the Respondent’s witnesses,
that there were no documents, incredible. Wofford conceded
that the Respondent had work schedules prepared by Co-
mau/Pico and Routly testified that he had a hit list each night of
work that needed to get done. Routly also testified that he noted

21 My finding regarding Wofford’s statement is based on the com-
bined testimony of Respondent’s witnesses who were at the meeting. I
do not credit McCoy’s version that Wofford said the Respondent fired
him and the others in order to get one employee. McCoy’s recollection
appears to be his interpretation of what was more likely to have been
said.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
on his list each morning that work wasn’t completed due to
manpower issues. At a minimum, the Respondent should have
produced such documents to show that the night shift was fail-
ing to meet production requirements. Moreover, it is highly
unlikely that there would be no correspondence, memos or
other documentation of Comau/Pico’s complaints about the
Respondent’s failure to meet contractual time targets. Particu-
larly on a job of this size, for a company like Mercedes-Benz,
everyone working on the job would want to document the fact
that it was the other guy who was causing the delays, if any,
that existed. Such documents, known in the vernacular as
“CYA” memos, are commonplace in our litigious society. Yet,
despite the alleged seriousness of the problem, and the adver-
sarial nature and frequency of meetings between Collar and
Saro regarding this issue, the Respondent would have me be-
lieve that no one ever put these concerns on paper. I don’t buy
it and agree with the General Counsel that an adverse inference
should be drawn from the Respondent’s failure to produce any
documentation to support the testimony of its witnesses. Auto
Workers v. NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972). Ac-
cordingly, I shall infer that had the Respondent produced
documents, they would not have shown that the night shift was
responsible for the delays in production.
I find, based on the above and the preponderance of the evi-
dence in the record, that the asserted lack of productivity of the
night crew was a pretext and that the Respondent was conceal-
ing its true motive for discharging these 10 employees. Even
assuming that the Respondent was behind schedule and was
under intense pressure from Saro to increase productivity
and/or to meet deadlines in the contract, the Respondent has not
shown that the 10 discharged employees were responsible for
this situation. This case is thus different from Framan Me-
chanical, Inc.,22 cited by the Respondent, where the Board
found no violation of Section 8(a)(3) based on its finding that
the employer had established that it had a legitimate need to
layoff the alleged discriminatees. The Board there noted that
the testimony of the employer’s witnesses as to the reason for
termination was consistent and supported by documentary evi-
dence. Cf. Davey Roofing, Inc., 341 NLRB 222, 223 (2004).
Having found that the Respondent’s asserted reason was pre-
textual, I must conclude that the real reason the Respondent
terminated the alleged discriminatees was its mistaken belief
that they were in concert with Vincent in causing a slowdown
of the work. Collar’s hasty decision to terminate Vincent, based
on an unsubstantiated report that he was attempting to cause a
work stoppage, and his issuance of a final warning to Vincent
when he cancelled the termination, is evidence of animus to-
ward the employees’ exercise of statutory rights. Thus, in that
situation, Collar equated Vincent’s mere questioning of the
journeyman to apprentice ratio on the job as an attempt to cause
a work stoppage. When he observed Vincent and his colleagues
on the wire pull, Collar apparently assumed Vincent had not got
the message and was still holding up the job. Rather than say
something to Vincent and the others, or ask them why it was
taking so long to perform the wire pull, Collar reacted by ter-
minating everyone associated with Vincent. Significantly, Col-

22 343 NLRB 408 (2004).
lar took no action against Harding and the apprentices from the
day shift, who started the wire pull and were working with
Vincent on the pull that night. The Respondent also spared
from termination the four electricians who had recently started
on the night shift because they were not part of Vincent’s
group.
Based on the above and the preponderance of the evidence in
the record, I find that the Respondent terminated Vincent and
the other nine alleged discriminatees on March 7, and deemed
them ineligible for rehire, because of its mistaken belief that
these employees were engaged in a concerted slowdown of
work. Because the evidence does not show that to be the case, a
violation has been established under Section 8(a)(1) of the Act.
NLRB v. Burnup & Sims, supra. See also NLRB v. Link-Belt
Co., 311 U.S. 584, 589–590 (1941); JCR Hotel, Inc. v. NLRB,
342 F.3d 837, 840 (8th Cir. 2003); Dayton Hudson Corp., 324
NLRB 33 (1997). Because the evidence does not support a
finding that the Respondent was also motivated by antiunion
animus in discharging these ten employees, I shall recommend
dismissal of the 8(a)(3) allegation in the complaint.
CONCLUSIONS OF LAW
1. By discharging Stanley Vincent and converting the dis-
charge to a final warning on March 4, 2004, the Respondent has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By discharging Stanley Vincent, Chris Turner, Don
Malone, Lance James, Shane Myers, Steve Bell, John Roy
Jones, William Vincent, Mike Guthrie, and James McCoy on
March 7 and thereafter deeming them ineligible for rehire, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). The evidence in the record shows that the Respondent
laid off approximately 40 employees on March 9, 2 days after
the unlawful discharges here, as a result of Comau/Pico remov-
ing work from the Respondent. In all probability, had the dis-
criminatees not been terminated on March 7, they would have
been laid off 2 days later for nondiscriminatory reasons. The
extent to which they would have been recalled in April and
May, when Comau/Pico restored work to the Respondent, had
the Respondent not unlawfully deemed them ineligible for re-
hire, and the duration of any subsequent reemployment are
matters best left for resolution at the compliance stage of this
WHITE ELECTRICAL CONSTRUCTION CO. 1107
proceeding. See, e.g., Casey Electric, Inc., 313 NLRB 774
(1994); Dean General Contractors, 285 NLRB 573 (1987).
[Recommended Order omitted from publication.]