Electric By Miller, Inc., 266 (2005)
Electric By Miller, Inc. and International Brotherhood of Electrical Workers, Local 584, Affiliated with International Brotherhood of Electrical Workers, AFLÂ–CIO. Case 17Â–CAÂ–22667
February 16, 2005
DECISION AND ORDER
By Chairman Battista and Members Liebman and Schaumber
On November 3, 2004, Administrative Law Judge George Carson II issued the attached decision.Â The Respondent filed exceptions and a supporting brief.Â
The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judgeÂ’s rulings, findings,1 and conclusions and to adopt the recommended Order.
The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Electric by Miller, Inc., Miami, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Order.
Frank A. Molenda, Esq., for the General Counsel.
Donald W. Jones, Esq., for the Respondent.
Mr. Roger K. Canada, for the Charging Party.
Statement of the Case
George Carson II, Administrative Law Judge. This case was tried in Miami, Oklahoma, on September 14, 2004, pursuant to a complaint that issued on May 26, 2004, and that was amended on August 13, 2004. The complaint alleges that the Respondent interrogated and threatened employees in violation of Section 8(a)(1) of the National Labor Relations Act (the Act) and revoked the cell phone privileges of and discharged John R. Carter because of his union activities and refused to hire Brent Sloan because of his union affiliation in violation of Section 8(a)(3) of the Act. The Respondent denies all violations of the Act. I find that the Respondent did violate Section 8(a)(1) of the Act by threatening closure and did unlawfully discharge Carter.
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following
Findings of Fact
The Respondent, Electric by Miller, Inc. (the Company), a corporation, is an electrical contractor providing services to the building and construction industry from its facility in Grove, Oklahoma. The Company, in conducting its business, annually purchases goods and supplies valued in excess of $50,000 from suppliers located outside the State of Oklahoma. The Respondent stipulated and admitted, and I find and conclude, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that International Brotherhood of Electrical Workers, Local 584, affiliated with International Brotherhood of Electrical Workers, AFLÂ–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act.
ii. alleged unfair labor practices
The Company, a nonunion contractor, is owned by President Kathy Miller who began operating it in 2003 following a divorce. Miller and her former husband had operated an electrical company with Miller serving as business manager and her husband providing the electrical expertise. On December 13, 2003, Miller hired Mike Harrell, an electrician who possesses a contractorÂ’s license, which is required in order for a firm to operate in Oklahoma. Harrell testified that he was operations manager. The complaint alleges and the answer admits that he was vice president of operations. Harrell was formerly a member of the Union.
In late December 2003, union member John R. Carter sought and obtained permission from Roger Canada, organizer for the Union, to seek work with this nonunion company. Carter was hired on December 31, 2003. He performed various jobs, including estimating. The alleged unfair labor practices herein all occurred during the last week of CarterÂ’s employment, which ended January 16. There is a sharp dispute as to whether Carter was fired or quit. Operations Manager HarrellÂ’s employment ended contemporaneously with that of Carter. Harrell, an acknowledged supervisor, is not protected by the Act, and there are no allegations relating to him. The event that immediately preceded the terminations or quits of Carter and Harrell was a conversation between President Miller and organizer Canada on the morning of January 16.
John R. Carter testified that he was hired on December 31, 2003, by Harrell. He acknowledges speaking with President Miller before he began work. Miller testified that she alone made hiring decisions. Miller testified that she was not fully satisfied with CarterÂ’s work or conduct. She purportedly heard that Carter had been rude when performing work at her hairdresserÂ’s shop, but she did not speak to him about this. She received a report that Carter carried a firearm in his zippered day planner. She asked him to cease doing so. Carter testified that he complied with her request. Miller testified that she saw the firearm again, but there is no evidence that she mentioned the matter. On Wednesday, January 14, Miller claims that she requested Carter to handle an emergency call and to take with him the two apprentices with whom he was working. Carter testified that Miller requested that he estimate three potential jobs, and his timesheet reports Â“looking at bids.Â” He did not take the apprentices. Despite the foregoing alleged conduct and disobedience, Miller took no action against Carter. When asked why she took no action, Miller testified that Â“[i]t wasnÂ’t the right time, yet.Â”
Carter had, on January 7, contacted organizer Roger Canada and asked him to meet for lunch with him and the CompanyÂ’s two apprentices, the total work force of the Company. They met on January 14. In that meeting, Canada spoke of the benefits of the UnionÂ’s apprenticeship program, and the two apprentices expressed interest. Because they worked for a nonunion company, Canada did not request that they join the Union. He did request that they sign cards authorizing the Union to represent them in dealings with the Company, and they did sign authorization cards. Canada explained that he would need them to provide documentation of their prior experience by Friday in order for the apprenticeship committee to review it prior to voting to accept them into the program. After lunch, the apprentices returned to the jobsite and Carter, consistent with MillerÂ’s instructions, continued to survey the potential jobs.
Harrell had been in Tulsa on the morning of January 14. He returned to Grove by way of the jobsite and discovered the apprentices working without a journeyman. They reported to him their meeting with organizer Canada. Their report was garbled. Rather than reporting that there would be a vote regarding their acceptance into the apprenticeship program, they reported that there would be a vote for union representation at the Company on Friday.
When Carter returned to the company office, he was asked to meet with Miller and Harrell. Harrell stated that he Â“did not think very highly ofÂ” Carter leaving two apprentices to work by themselves. Section 158:40-5-1 of the Oklahoma Electrical Industry Regulations provides that Â“[a]pprentice electricians must be under the direct Â‘on-the-job supervisionÂ’ of a licensed journeyman or contractor, when engaged in the work of an apprentice.Â” Miller stated that Â“it was her fault that I had been pulled off of the job to go look at other projects.Â” There was discussion regarding obtaining another journeyman on an Â“as neededÂ” basis. Carter stated that he knew of someone and would call him. He did so on the office telephone, and Miller was aware of this. Miller denied that Carter named Brent Sloan, the individual whom he called. Assuming Carter did name Sloan, I find that Miller did not recall SloanÂ’s name. Carter did not provide SloanÂ’s address or telephone. Thereafter, in their meeting, Harrell stated that he Â“wasnÂ’t happy with the Union meeting that took place at lunchtime.Â” He reported what the apprentices had told him regarding a vote on Friday. Carter testified, and Miller did not deny, that Miller stated that Â“she would end up locking her doors if there was a vote, andÂ—or if the shop tried to go Union.Â” Carter then explained that the report Harrell had received was wrong, that the meeting related to the apprenticeship program, and that the apprentices were to get their documentation regarding experience to him by Friday so he Â“could get it to Roger [Canada] by Friday evening, to get an emergency meeting of the apprenticeship committee on Saturday, to just formalize that they could get in the apprenticeship training.Â”
Following this meeting, Carter was driving to Tulsa. Sloan returned the call that Carter had previously made. Carter, while driving, received the call on a company cellular telephone that he testified he had been given by Miller on one unspecified night because Â“we were having phone tag problems that night.Â” Carter asked whether Sloan would be interested in working on an as needed basis if given a day or two of notice. Sloan replied that he would. Before Carter reported that Sloan was interested, he received a call from Harrell who told him not to have the...
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