United Electrical Contractors, Inc. d/b/a United Electrical Contractors, (2023)

• Date: 09 November 2023

JD–74–23

Lansing, MI

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

UNITED ELECTRICAL CONTRACTORS, INC.

D/B/A UNITED ELECTRICAL CONTRACTORS

and Case Nos. 07-CA-291548

07-CA-294318

LOCAL 252, INTERNATIONAL BROTHERHOOD 07-CA-295736

OF ELECTRICAL WORKERS (IBEW), AFL-CIO

Patricia Fedewa, Esq.,

for the General Counsel.

Aaron O. Matthews, Esq.,

(Matthews Law, PLC)

East Lansing, Michigan,

for the Respondent.

Robert D. Fetter, Esq.,

(Miller Cohen, PLC)

Detroit, Michigan,

for the Charging Party.

DECISION

STATEMENT OF THE CASE

PAUL BOGAS, Administrative Law Judge. I heard this case in Detroit,

Michigan, on July 17 and 18, 2023. Local 252, International Brotherhood of Electrical

Workers (IBEW), AFL-CIO, (the Union or the Charging Party) filed the charge: in case

07-CA-291548 on March 1, 2002 (amended May 3, 2022); in case 07-CA-294318 on

April 14, 2022; and in case 07-CA-295736 on May 9, 2022. The Director of Region 7 of

the National Labor Relations Board (the Board) issued the Consolidated Complaint on

March 14, 2023, and the Amended Consolidated Complaint (the Complaint) on May 31,

2023. The Complaint alleges that United Electrical Contractors, Inc. d/b/a United

Electrical Contractors (the Respondent, the Employer, the Company, or UEC) violated

Section 8(a)(1) of the National Labor Relations Act (the Act) on about September 7 and

October 30, 2021, by telling employees that it had instituted a hiring freeze and begun

using a contractor in order to avoid hiring pro-union employees, and violated Section

8(a)(3) and (1) of the Act from mid-March 2021 to October 2021 by discriminatorily

refusing to consider or hire three job applicants because each of those applicants was

affiliated with a union. The Complaint further alleges that the Respondent

JD–74–23

2

violated Section 8(a)(1) of the Act by maintaining multiple rules in its Employee

Handbook that interfered with employees’ Section 7 rights, and by providing employees

with form letters stating that the employee did not want to be contacted by the Union

and by mailing those letters, once signed by the employee, to the Union on behalf of the

employee. The Respondent filed a timely Answer in which it denied committing any of 5

the violations alleged.

On the entire record, including my observation of the demeanor of the witnesses,

and after considering the briefs filed by the General Counsel, the Respondent, and the

Charging Party, I make the following Findings of Fact and Conclusions of Law. 10

FINDINGS OF FACT

I. JURISDICTION

15

The Respondent is a corporation that provides electrical contracting services at

locations throughout the State of Michigan and has an office and place of business in

Lansing, Michigan. In conducting these operations the Respondent annually derives

gross revenues in excess of $500,000, and has, at the Lansing location, purchased and

received goods valued in excess of $5000 directly from points outside the State of 20

Michigan. The Respondent admits, and I find, that it is an employer engaged in

commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union

is a labor organization within the meaning of Section 2(5) of the Act.

II. BACKGROUND25

The Respondent performs electrical work in settings ranging from single family

homes to large residential and light commercial facilities. During the time when the

violations are alleged to have occurred, the Respondent employed about 100 persons,

of whom 70 to 75 worked as electricians. Prior to March 2020, when the Covid 30

epidemic began to negatively affect its business, the Respondent had considerably

more employees – as many as 200 in total, of whom 170 to 180 worked as electricians.

Tr. 22-23, 156-157. Those employees included both journeymen electricians who are

fully licensed by the State of Michigan, and electricians who are still training, but are

registered with the State of Michigan as apprentice electricians. Tr. 34. 35

A. Union Campaign

The Respondent does not have collective bargaining relationships with any of its

employees. Tr. 42. In October 2020, the Union began campaigning to represent 40

electricians working for the Respondent. Tr. 59. As part of that effort, Michael Moran, a

union organizer, contacted Jeremy Tolliver, the Respondent’s superintendent of

projects, and asked to meet. Tr. 66. In two instances Tolliver agreed to meet, but then

neither Tolliver nor anyone else from the Respondent, appeared for the scheduled

meetings. Tr. 68. The Respondent’s vice-president, Rob Peebles, testified that he was 45

aware that persons he assumed to be union representatives were visiting jobsites to talk

to the Respondent’s employees. Tr. 41. During the union campaign, three licensed,

JD–74–23

3

union-affiliated, electricians –Stacie Butler, Harry Hutchison,1and Scott Siple –applied

for positions with the Respondent. Butler and Hutchison applied on March 15, 2021,

and Siple applied on March 29 and again on June 23, 2021. The Respondent did not

hire or interview any of the three, nor did it inform them that they were not being hired.

5

B. Respondent Distributes Union Avoidance Tips

On March 16, 2021 (the day after union-affiliated electricians Butler and

Hutchison filed their employment applications), and again on June 9, 2021, the

Respondent’s vice-president, Peebles, distributed an email with the subject line “FW: 10

Union Activity” and to which he attached a document entitled “Tips for Avoiding Salting.”

General Counsel Exhibit Number (GC Exh.) 11. “Salting” refers to the practice by which

union-affiliated workers seek employment for the purpose of furthering the union’s

objectives in a workplace where the union does not currently represent employees.2

Among those to whom Peebles distributed the Tips were superintendent of projects 15

Tolliver and two project managers. When asked at the hearing whether he circulated

the Tips document because he was “concerned that you might hire someone by

accident who’s affiliated with Local 252,” Peebles answered, “Not really.” Tr. 40.

The tips that Peebles provided to the managers stated that salting was a 20

“despicable” tactic that “[b]elieve it or not, the Supreme Court has declared . . . legal.”

GC Exh. 11. The document states that despite the legality of the practice, “employers

can still avoid union salts.” Ibid. Among the tips that the document provides for doing

this is to “show no animus towards unions” during interactions with the union-affiliated

applicant, but rather to respond to a union applicant’s questions “with a blank stare or 25

vague reply.” The Tips document advises that the employer rely “on some neutral

basis” when it rejects union-affiliated applicants, and recommends that the employer

adopt a written “dishonesty policy” that can be relied on to reject, or terminate, a union-

affiliated individual who gives untruthful responses during the application process. Ibid.

30

On March 22, 2021, less than a week after the Respondent’s vice-president

Peebles distributed the Tips document, and approximately 1 week after two alleged

discriminatees applied for work, Peebles adopted written application and hiring policies,

supplanting the unwritten practices that the Respondent used previously for hiring. GC

Exh. 9 and Tr. 24-25, 137-138. The new policies were not provided to applicants or 35

available on the Respondent’s website. Tr. 171-172. Prior to the adoption of the written

policies, the Respondent had an online portal by which prospective employees

submitted their applications. Tr. 29. Union-affiliated applicants Butler and Hutchison

1The Complaint spells this individual’s name “Hutchinson,” but at the hearing and in his

application with the Respondent the witness himself spelled it “Hutchison.” Tr. 86; GC Exh. 6.

2See Oil Capitol Sheet Metal, Inc., 349 NLRB 1348,1353 (2007), petition for review

dismissed 561 F.3d 497 (D.C. Cir. 2009); Tualatin Electric, 312 NLRB 129, 130 n.3 (1993), enfd.

84 F.3d 1202 (9th Cir. 1996). In its brief, the Respondent makes no mention of “salting” and

does not contend that the alleged discriminatees should be considered “salts” for purposes of

my decision. Similarly, neither the General Counsel’s brief nor the Charging Party’s brief

characterize the alleged discriminatees as “salts.” Although the alleged discriminatees were

union members, none of them were employees of a union.