Quantum Electric, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 2004

341 N.L.R.B. 1270 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
Quantum Electric, Inc., and International Brother-
hood of Electrical Workers, Local Union 441,
International Brotherhood of Electrical Work-
ers, AFL–CIO and International Brotherhood of
Electrical Workers, Local Union 11, Interna-
tional Brotherhood of Electrical Workers, AFL–
CIO. Cases 21–CA–31670 and 21–CA–31729
June 3, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On December 8, 2003, Administrative Law Judge
Lana H. Parke issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed cross-exceptions and an answering
brief, and the Respondent filed an answering brief and a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Quan-
tum Electric, Inc., Los Alamitos, California, its officers,

1 We agree with the judge, for the reasons stated in her decision, that
the Respondent violated Sec. 8(a)(3) and (1) of the Act when it dis-
charged employee Damir Tomas for wearing a T-shirt with union in-
signia and refusing to turn the T-shirt inside out. In its exceptions, the
Respondent argues for the first time that its ban on such clothing was
justified by “special circumstances.” See generally UPS, 312 NLRB
596, 597 (1993), enf. denied 41 F.3d 1068 (6th Cir. 1994). Even if the
Respondent’s pro se status could excuse its failure to present evidence
in support of a “special circumstances” defense at the hearing, the
Respondent’s exceptions proffer no additional facts that would support
its position.
2 We shall modify the judge’s recommended Order to provide for
Tomas’s reinstatement, as requested by the General Counsel in his
cross-exceptions. Dean General Contractors, 285 NLRB 573 (1987).
The availability of continued employment for Tomas, as well as the
effect of the passage of time on Tomas’s right to reinstatement, are
matters that can be left to compliance. Although Chairman Battista and
Member Meisburg have substantial doubts as to whether Dean General
Contractors was correctly decided, they will leave to compliance the
question of whether Tomas, if he had not been discharged, would have
continued to be employed by the Respondent and whether he would
have been referred to subsequent jobs. This will, in turn, determine the
amount of backpay and whether reinstatement is warranted.
We shall also substitute the Board’s standard language for portions
of the judge’s notice.
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 2(a) and reletter
the remaining paragraphs accordingly.
“(a) Offer Damir Tomas immediate reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights and privileges previously
enjoyed.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT prohibit employees from wearing cloth-
ing showing their support for International Brotherhood
of Electrical Workers, Local Union 441, International
Brotherhood of Electrical Workers, AFL–CIO or any
other labor organization.
WE WILL NOT terminate any employee for refusing to
comply with an unlawful order prohibiting protected
activity such as wearing clothing showing support for
International Brotherhood of Electrical Workers, Local
Union 441, International Brotherhood of Electrical
Workers, AFL–CIO or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Damir Tomas immediate and full rein-
statement to his former job, or, if that job no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights and privileges
previously enjoyed.
WE WILL make Damir Tomas whole for any loss of
earnings and other benefits resulting from his termina-
tion.
341 NLRB No. 146
QUANTUM ELECTRIC, INC. 1271
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful termination of Damir Tomas and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the termination will not be used against
him in any way.

QUANTUM ELECTRIC, INC.

Amy Silverman, Esq., for the General Counsel.
Michael J. Swanson, of Los Alamitos, California, for the Presi-
dent, Quantum Electric, Inc.
Jessica Losch, for the Secretary-Treasurer, Quantum Electric,
Inc.
Ray Van Der Nat, Esq., of Los Angeles, California, for the
Charging Party, Local 441.
Larry Henderson, of Los Angeles, California, for the Organizer
Charging Party, Local 11.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. Pursuant to
charges filed in 19961 by International Brotherhood of Electri-
cal Workers, Local Union 441, International Brotherhood of
Electrical Workers (Local 441) in Case 21–CA–31670, and a
charge filed by International Brotherhood of Electrical Work-
ers, Local Union 11, International Brotherhood of Electrical
Workers (Local 11)2 in Case 21–CA–31729, the Regional Di-
rector for Region 21 of the National Labor Relations Board (the
Board) issued an order consolidating cases, consolidated com-
plaint and notice of hearing (the complaint) on June 5, 1997,
alleging that Quantum Electric, Inc. (Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act).3 The consolidated case was tried in Los Angeles, Cali-
fornia, on July 14 and 15 and September 16, 2003.
Issues
1. Did Respondent violate Section 8(a)(3) and (1) of the Act
by the following conduct:
(a) In July, terminating employee Leandro Cornejo
(Cornejo).
(b) On August 2, terminating employees Gonzales, Koenig,
McCloyn, Juan Lozano (Lozano), and Sam Palazzola (Palaz-
zola).
(c) On August 2, terminating employees Gonzales, Koenig,
McCloyn, Juan Lozano (Lozano), and Sam Palazzola (Palaz-
zola).

1 All dates are in 1996 unless otherwise noted.
2 Local 441 and Local 11 collectively “the Union.”
3 Counsel for the General Counsel amended the complaint at the
hearing to allege Curt Cramer, foreman, as a supervisor, which Re-
spondent admitted, and to reflect the correct names of Brian Krause and
Mark Carey, supervisors. Counsel for the General Counsel further
amended the complaint to allege that in July 1996 Respondent, through
Curt Cramer, created the impression of surveillance of employees’
union activities and threatened an employee with termination because
of his union activities, both of which allegations Respondent denied.
(d) On September 9, refusing to hire or consider for hire Jeff
Clark (Clark).
(e) On October 24, terminating employee Damir Tomas
(Tomas).
(f) Since November 20, failing and refusing to reinstate em-
ployee Mike Kaspar (Kaspar) to his prestrike position of em-
ployment.
2. Did Respondent independently violate Section 8(a)(1) of
the Act between June and October by the following conduct:
(a) Threatening employees with termination because of their
union activities.
(b) Threatening employees with refusal to hire because of
their union activities.
(c) Interfering with employees by stating that if employees
joined the Union, they would be unemployed for months.
(d) Interfering with employees by telling an employee not to
join the Union.
(e) Interfering with employees by forbidding an employee to
discuss or negotiate wages on behalf of fellow employees.
(f) Interfering with employees by directing employees to dis-
avow an employee association.
(g) Interrogating employees about their union activities or
the union activities of other employees.
(h) Creating the impression of surveillance of employees’
union activities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and Local 441, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation, with a facility in
Los Alamitos, California (the facility), engages in the business
of electrical construction. During a representative 12-month
period ending December 31, it purchased and received at its
facility goods valued in excess of $50,000 directly from suppli-
ers located outside the State of California. Respondent admit-
ted and I find it to be an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. Respon-
dent stipulated at the hearing, and I find, that Local 441 and
Local 11 are labor organizations within the meaning of Section
2(5) of the Act.4
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Business and Supervisory Structure
The Respondent is a nonunion electrical contractor. In 1996,
Respondent was engaged in performing electrical construction
work at five to seven major projects with a total electrical em-
ployee complement of 18 to 25. Three of the projects were the
USC Institute of Genetic Medicine located at the USC Medical
Center on Mission and Soto Streets in Los Angeles (the USC
site), the California Medical Center in downtown Los Angeles
4 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
(the Cal Med site), and the AMC movie theater complex in
Long Beach (Long Beach site). Respondent employed ap-
proximately 10 electrical employees at the USC site and ap-
proximately 10 electrical employees at the Cal Med site whose
shifts fell variously between the hours of 6:30 a.m. and 3:30
p.m. Vaccaro served as foreman at the USC site and Cramer at
the Cal Med site.
The following individuals, employed by Respondent at rele-
vant times in the following positions and locations, were super-
visors within the meaning of Section 2(13) of the Act:

Jessica Losch (Losch) Co-owner and Secretary/Treasurer
Mike Swanson (Swanson) Co-owner
Brian Krause (Krause) Office Supervisor
Mark Carey (Carey) Foreman (Long Beach site)
Steve Vaccaro (Vaccano) Foreman (USC Medical Center site)
Curt Cramer (Cramer) Foreman (California Medical Center
site)

The above foremen were not responsible for granting time
off, laying off, or discharging employees. Losch and Swanson
exercised sole authority over those decisions.
B. Respondent’s Attendance Policy and Practice
Respondent’s policy regarding absenteeism and tardiness is
set forth on its unsatisfactory performance warning form as
follows:

A record of absenteeism and tardiness is kept by the
office. A combination of either [absenteeism or tardiness]
can result in the termination of your employment. Three
written warnings in a one month period will result in im-
mediate termination. In the event of a medical or family
crisis, a doctor’s note, or a release from the management
of Quantum Electric, Inc. is required to be excused from
this written warning.
All other absences or tardies can only be excused by
the management of Quantum Electric, Inc.
Upon the occurrence of the third unexcused absence or
tardy in a 1 year period, a final written warning will be is-
sued, and any occurrence thereafter [in] the 1 year period
will result in termination.
Any absence or tardy, regardless of the number of pre-
vious occurrences, in which the office has not been noti-
fied of the reason within 4 hours from the beginning of
your scheduled work time, can result in immediate termi-
nation.

Respondent gave three absence-related warning notices to,
and thereafter on April 3, terminated employee Gary Bletsch
(Bletsch) for “failure to give advance notice to the office when
leaving jobsite early or taking days off.” Respondent issued a
warning to Cornejo for tardiness on July 15, noting his excuse
of a “flat tire” and a warning to Gonzalez on July 30 for absen-
teeism, noting his excuse of “no transportation” and that he had
left a message on the office machine a half hour before his
starting time.5

5 These were the only pre-August 2 warnings introduced into evi-
dence.
C. Union Activity at Respondent’s Jobsites
As early as March, Local 11 engaged in organizational ac-
tivities among Respondent’s employees. During May and June,
union organizer, Charles Turpin (Turpin) visited the USC and
the Cal Med sites on several occasions and spoke to Respon-
dent’s employees about joining the Union. After one such visit
to the USC site, Vaccaro told four or five employees, “I
wouldn’t join the union because they’ll have you sitting on the
books six to nine months, maybe even a year.” On another
occasion, Vaccaro asked Palazzola if he were “union.” Accord-
ing to Lozano, following a May visit by Turpin to the Cal Med
site, Cramer told Lozano to tell other employees not to talk to
the Union; if they didn’t stop, they would get fired. Cramer
denied making any such threat to any employee. I was not
impressed with Lozano’s demeanor as a witness. Further, his
testimony regarding the conversation was elicited piecemeal,
which detracts from its credibility: in response to the first ques-
tion, he answered that Cramer had “told me not to talk to the
union guy,” in response to the second, that Cramer had said “he
didn’t want us to be talking to the union,” in response to the
third, that Cramer had said “to tell the other guys not to talk
about the union,” and in response to the fourth, that Cramer
“told me like, if we didn’t stop talking about the union, we
were going to get fired.” The record shows that union repre-
sentatives were an open presence at Respondent’s jobsites at
least May through August. Other than Lozano’s testimony,
there is no evidence of any managerial attempt to discourage
employees from interacting with them during breaktimes. In
these circumstances, I credit Cramer’s denial.
By letters dated as follows, Local 11 notified Respondent
that employees named below had signed union authorization
cards or were members of Local 11 and would be engaging in
union activities at work. Employee information sheets note the
following dates and reasons for subsequent termination of em-
ployment:

Employee
Name
Date of
Letter
Date & Reason
for Termination

Ron Houston

March 9

3/23 Unstated
Gary Bletsch March 27 4/3 Failure to give advance notice
[of absence]
Carlos Gutierrez May 14 5/17 Quit. Better job offer from
Union
Carlos Ayala May 14 5/17 Quit. Better job offer from
Union
Randy C. Gallegos August 7 8/8 Quit, joined the Union
Mr. Manriquez August 7 8/8 Quit . . . to join the Union
Osvaldo Sosa August 7 8/8 Quit, joined the Union
Michael Keas August 7 8/8 Quit, joined the Union
Curt Spencer Sept. 9 9/13 Quit without notice—Union
had job for him6
D. The Termination of Cornejo
In July, the Union held an informational meeting at the union
hall about four or five blocks away from the USC site begin-

6 Respondent referred to employees quitting to obtain employment
on union-signatory jobsites as “quit[ting] to join the union” or
“join[ing] the union.”

QUANTUM ELECTRIC, INC. 1273
ning at about 3:30 p.m. (the July meeting). Cornejo asked Vac-
caro if he could leave work early from the USC site to attend
the July meeting. Vaccaro gave permission. On a day follow-
ing the July meeting, according to Cornejo, Vaccaro asked
Cornejo how the meeting was; Cornejo said it was fine. Vac-
caro told Cornejo that if he attended another meeting, he
needed to give advance notice, in Cornejo’s words, “two
months notice or something like that.”7
According to Cornejo about 2 weeks later on July 17, Vac-
caro again mentioned the Union to him. Cornejo initially testi-
fied that Vaccaro asked for news of a postal service employ-
ment test Cornejo had taken and said if he went “to vote the
union, [Vaccaro] is going to replace me for somebody else.”
Later Cornejo testified, “[Vaccaro] told me if I—if I go to the
union or to another job, that he’s going to replace me before—
before I get to know the [post office test] results.” I find the
statements attributed to Vaccaro ambiguous. It is not clear
Vaccaro was warning Cornejo that supporting the union would
result in his discharge, an unquestionably unlawful threat. Re-
spondent appears to have described employees’ actions in quit-
ting to obtain employment covered by a union contract as “join-
ing the union.” Vaccaro’s statement could thus be understood
as a warning to Cornejo that if he voluntarily left Respondent’s
employment for another job, Respondent would replace him, a
lawful admonition. I cannot find, based on Cornejo’s account,
that Vaccaro made any antiunion threat or even expressed un-
ion animus.
At the end of Cornejo’s shift on the same day as his conver-
sation with Vaccaro, Vaccaro told him to pick up his tools and
leave. Cornejo contacted Losch and asked why he had been
fired. Losch told him it was a reduction-in-force.8 Losch
signed a letter dated July 17 that reads, “To whom it may con-
cern: Leandro Cornejo was laid off due to a reduction in forces
on July 17, 1996. His last day worked with Quantum Electric
Inc. was July 17, 1996.”
E. The August 2 Union Meeting and
Consequent Employee Discipline
Sometime prior to August 2, the Union announced a meeting
would be held at the union hall on August 2 at 2 p.m. (the Au-
gust meeting), during Respondent’s normal work schedule.
Union representatives advised Respondent’s employees they
needed to attend the meeting to get information on joining the
Union.9 No one explained why the Union scheduled the meet-
ing to conflict with Respondent’s work hours, but attendance
did require Respondent’s employees to leave work early. Vari-
ous employees from either the USC or the Cal Med site left

7 I do not accept Cornejo’s vague testimony as to how much advance
notice Respondent required. I also find it reasonable to infer that Vac-
caro meant advance notice would have to be given to attend any meet-
ing scheduled during working hours and that Cornejo understood him
to mean that.
8 Respondent’s practice was to lay off employees at the end of their
work shifts without “much notice at all . . . [out of] concerns that em-
ployees might not react well.”
9 Gonzales testified that Turpin told employees to come for a
“placement test,” but Lozano testified that at the meeting union leaders
only told employees about the advantages of union membership.
work early to attend the August meeting in the following cir-
cumstances:

McCloyn. Following a morning employee meeting
with Vaccaro at the USC site, McCloyn asked Vaccaro’s
permission to leave early to go to the union hall. Vaccaro
directed him to inform Respondent’s office. At about 8:45
a.m., Vaccaro told employees they did not have to call the
office because he already had, and the company required
each of them to sign a document entitled “Unsatisfactory
Performance Warning” (performance warning) before they
could leave work.10 Explanation line C (“Leaving before
end of scheduled work period”) was marked.11 Vaccaro
explained the performance warning was a reprimand for
leaving early. McCloyn and Gonzales signed the perform-
ance warning at that time. At about 1:55 p.m., the em-
ployees left work and attended the union meeting.
McCloyn had never before left work early.
Gonzales. At about 8:00 or 9:00 a.m. at the USC site,
Gonzales asked Vaccaro if he could leave work early.
Vaccaro said, “Oh, you’re going to the Union, too . . .
you’d only be hurting the company. Probably be burning
your bridges.”12 As to Gonzales’ leaving early, Vaccaro
said something to the effect that he had already discussed
it with the office. At about 1:00 p.m., Vaccaro presented
Gonzales with a performance warning, explaining that
Gonzalez had to sign it for leaving without authorization,
which Gonzales did. Gonzales left work at about 1:45
p.m. to attend the union meeting. At about 6:00 p.m.,
Swanson telephoned Gonzales at home and told him he
was fired because he left work early.
Koenig. Koenig did not testify. He worked at the
USC site as of August 2. He signed an Unsatisfactory Per-
formance Warning on August 2 issued for “Leaving before
end of scheduled work period.” In the reason-for-
termination section of Koenig’s Employee Information
Sheet, the words “Left job early without prior notice to the
office” are crossed through and replaced with “Reduction
in work force. We had check prepared and sent to job and
he had left before quit time and we could not give him his
10 The performance warning set forth Respondent’s attendance poli-
cies as detailed supra.
11 McCloyn testified that no explanation line was marked when he
signed the performance warning. I attach no significance to McCloyn’s
testimony.
12 I do not infer union animus from Vaccaro’s statements. In the cir-
cumstances, I believe they are susceptible of a lawful meaning. Prior to
August, Respondent had experienced a number of employees leaving
its employ to obtain union-represented jobs (Carlos Gutierrez, Ron
Houston, and Carlos Ayala). Vaccaro’s words could reasonably be
taken to mean that if Gonzales followed that pattern, his leaving would
hurt the company by depriving it of yet another experienced worker.
As to the “burning your bridges” statement, such might also reasonably
be taken to mean that union membership restrictions, not retaliation,
could limit future employment. The reasonableness of such an inter-
pretation is reinforced by Vaccaro having earlier told employees the
union could have them “sitting on the books six to nine months, maybe
even a year.” That Respondent had no retaliatory intent is demon-
strated by its having marked Carlos Gutierrez and Carlos Ayala, who
quit because of a “better job offer from Union,” as “rehirable.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
final check.” He was rated ineligible for rehire because he
left work early.
Palazzolo. On the day prior to the August meeting,
according to Palazzolo who was working at the Cal Med
site, he telephoned Respondent’s office and informed
Kerry McFarland (McFarland), office manager, that he
had to leave work early the following day. There is no
evidence Respondent approved Palazzolo’s prospective
absence. On the morning of August 2, Palazzolo told Tom
Hooper (Hooper) who was filling in for Cramer at the Cal
Med site that he had already told the office he was leaving
early. Palazzolo left at about noon to attend the union
meeting. That evening Swanson telephoned Palazzolo and
said he was laying him off. Palazzolo asked whether it
was for leaving early or for a reduction in force. Swanson
said it was a reduction in force.13 Palazzolo telephoned
Losch and protested his discharge; Losch said work was
slow. Palazzolo’s Employee Information Sheet states the
reason for termination, “Reduction in work force. Left job
early before lay off check arrived.” He was rated ineligi-
ble for rehire because he left work early.14
Lozano. Lozano told Hooper he had to leave early that
day for an appointment. Hooper said he would call the of-
fice. Hooper never got back to Lozano. Lozano and Pa-
lazzola left the Cal Med site at about 11:30 a.m. to attend
the Union meeting. Before he left, Lozano told Hooper he
was leaving, and Hooper said, “Okay.” That evening,
Swanson telephoned Lozano and asked why he had left
work early. Lozano said he went to a union meeting.
Swanson told Lozano he was fired for leaving early. Fol-
lowing Swanson’s call, Lozano called Losch and told her
he wanted his job back. She said Respondent was going to
have a meeting to discuss employees’ terminations, and
she would get back to Lozano, but she never did. On prior
occasions, Lozano had obtained permission to leave work
early for various reasons without repercussion.
Peter Manriquez (Manriquez). Manriquez apparently
also left early to attend the August meeting. No evidence
was presented regarding the circumstances of his leaving.
Manriquez’s Employee Information Sheet shows he re-
ceived a written warning on August 5 for “leaving the job
early without prior notice on 8–2–96,” and that he volun-
tarily terminated employment on August 8 “to join the Un-
ion.”

Respondent sent a “Notice of Termination” dated August 2
to McCloyn, Gonzales, and Lozano, which stated that each had
been “terminated from employment with Quantum Electric,
Inc. as of August 2, 1996. Cause of termination is leaving job
without authorization.”
Respondent sent Palazzola a “Notice of Termination” dated
August 2, which read: “Samuel Palazzola has been terminated

13 Palazzola’s testimony in this regard was not consistent. He ini-
tially testified that Swanson said he was laid off because he left early
and only after Palazzola’s objection changed the reason to a work re-
duction.
14 Losch testified Respondent decided to lay off Palazzola before its
managers were aware he had left the job early.
from employment with Quantum Electric, Inc. as of August 2,
1996. Cause of termination is reduction in forces.”
F. Respondent’s Clothing Policy
Prior to August 8, Respondent did not require employees to
wear specified work clothing. Some employees wore T-shirts
with logos such as “Nike” or designs on them. On August 8,
Respondent issued a memorandum to employees (clothing pol-
icy memo) that stated, in pertinent part:

Clothing shall not have excessive wear (ie. holes, tears,
rips) graphics or printed text other than Quantum Electric,
Inc. approved or issued clothing.
Hard hats shall not have any attached decals or graph-
ics. Quantum Electric, Inc. excepted. Name identification
shall be made with removable label only, ie. Dymo,
Avery, P-Touch.
G. Clark’s Unsuccessful Application for Employment
On August 27, Clark, an 18-year member of Local 441, ap-
plied for a job with Respondent upon the advice of a Local 441
organizer. Another individual, Rudy Carr (Carr) applied for
work at the same time. After completing his application, on
which he stated his membership in Local 441, Clark took Re-
spondent’s 49-question test, missing five.15 Clark observed
that Carr was called into Respondent’s office for an interview,
presumably with Losch. When he came out, in response to
Clark’s inquiry, Carr said he had been hired. Losch then inter-
viewed Clark for about 20 to 30 minutes, asking him, among
other things, whether he was there to organize for Local 441
and stating that Local 11 had taken a couple of her key peo-
ple.16 Losch pointed out that Respondent started their jour-
neymen at $15 an hour, and asked how Clark could work for so
low an amount.17 Clark said he was near the bottom of Local
441’s out-of-work list and was looking for work. Losch said
she would call him if Respondent could put him to work. Fol-
lowing the interviews, Losch noted on Clark’s application that
he was eligible for a wage rate of $15 per hour. Respondent’s
records show it hired the following employees on the following
dates at the following wage rates:

Carr August 2818 $14.00 per hour
Mike Kaspar Sept. 3 $15.00 per hour
Robert Wilson Sept. 5 $14.00 per hour
Donald Low Sept. 16 $14.00 per hour
Stewart Gonzales Sept. 25 $15.50 per hour

In determining whether to hire an applicant, Losch consid-
ered a combination of factors such as test results, the appli-
cant’s experience and knowledge of the trade, past work, and
her assessment of the applicant’s responsiveness and motiva-
15 Respondent’s average applicant missed 12 to 14 questions.
16 I take Losch’s statements to mean that key employees had quit to
take union-represented employment.
17 Clark estimated that the journeyman rate under the union contract
was $25 or $26 an hour at that time.
18 Although the written record shows Carr’s hire date to be August
28, Carr was, according to Clark’s testimony, offered the job on August
27, prior to Clark’s interview.

QUANTUM ELECTRIC, INC. 1275
tion. Respondent also “[went] for the lower wage rate in many
. . . cases.”
On September 6, Clark telephoned Respondent and asked if
he could be employed. The person answering reported that
Losch said she did not know her manpower needs. Clark con-
tacted Respondent again on September 9 and asked Losch if
Respondent could put him to work. According to Clark, Losch
said not at that time as Respondent had problems with “some-
body trying to form an employee association.”19 I do not credit
Clark’s testimony of his September 9 conversation with Losch.
Not only was I unimpressed with Clark’s manner while testify-
ing, I find his account lacks inherent congruity. There is no
evidence that Losch made any negative statements regarding
the employee association to anyone, and there is nothing in
prior communications between Losch and Clark, all of which
were brief and noncommittal, to suggest she would impart such
a concern to him.
H. The Employment and Union Activity of Kaspar
On about August 28, Kaspar applied for employment with
Respondent. Kaspar was at the time a paid organizer for Local
441 and sought employment with Respondent for the purpose
of “salting”20 but did not disclose his union affiliation. Losch
interviewed him briefly, saying she was thinking about hiring
soon, and asked him if he would work for $15 an hour, Re-
spondent’s journeyman rate. The next day when Kaspar said he
was willing to work permanently, Losch hired him.
Respondent assigned Kaspar to the Long Beach site. Ac-
cording to Kaspar, on his first day, Carey asked him if he were
in the union. Kaspar said he had been a member of Local 441
since 1988. Kaspar faxed Respondent a letter dated September
3, as follows in pertinent part:

This is to inform you that I am a member of [Local 441]. I
have made it known to some workers who asked, that I am
indeed union. I plan on talking to workers of Quantum Elec-
tric about the benefits of being in the union. I believe that the
union can be of great benefit not only to the workers but to the
company as well.

The following day, according to Kaspar, Carey asked him if
he were talking to employees about the Union, saying the com-
pany had inquired. When Kaspar affirmed it, Carey said Kas-
par needed to let him know which employees were interested in
the union because he knew he would have to replace those em-
ployees. At lunchbreak that same day, Larry Henderson and
Richard Cheeks, two organizers from Local 11, visited the job-
site, answered employee questions, and handed out “paper-
work.”
Although Kaspar’s testimony is uncontroverted in this and
other instances, I do not credit portions of his testimony, in-
cluding the statements he attributes to Carey. Kaspar has fig-

19 The circumstances surrounding the formation of the employee as-
sociation are described below.
20 “Salting . . . involves members or organizers of a local union ap-
plying for work at nonunion employers engaged in the construction and
electrical contracting industry in order to organize the employer’s em-
ployees.” Corporate Interiors, Inc., 340 NLRB No. 85, slip op. at 5
(2003).
ured in at least three other Board cases in connection with his
“salting” activities, and he is clearly sophisticated in union
organization and litigation matters. In one of the cases, he re-
vealed significant animosity toward nonunion employers,
which detracts from his credibility. See W.D.D.W. Commercial
Systems, 335 NLRB 260, 268 (2001), wherein Kaspar was
quoted, “If we can’t get the workers, bankrupt the contractors.”
In another case, Kaspar was found to be an unreliable witness.
See Montano Electric, 335 NLRB 612, 619–620 fns. 13–15
(2001), where the administrative law judge specifically discred-
ited Kaspar’s testimony. I too did not find Kaspar to be a forth-
right or sincere witness, and specific incongruities in his testi-
mony cause me to doubt his version of several events. With
regard to his assertions about conversations with Carey, I note
Kaspar’s September 3 letter to Respondent does not mention
Carey’s alleged interrogation. Had Carey interrogated Kaspar,
I am certain he would have detailed it in his letter. His failure
to do so casts doubt on his testimony. Moreover, when ques-
tioned about his testimony in prior NLRB hearings, he said he
“[didn’t] know” if his testimony had ever been discredited. It is
improbable Kaspar was ignorant of the findings in Montano,
and I find his testimony disingenuous at best. Finally, I find
Kaspar’s testimony that Carey, on September 4, asked him
which employees he had talked with about the union, saying he
would have to replace them, inherently implausible. There
could be no reason for Respondent to ask if Kaspar were talk-
ing to employees about the union as he had just notified them
of that fact in writing, and employees’ union activity had been
open and notorious. Union representatives visited the jobsites
regularly, joined employees at breaks, and distributed literature,
all of which must have been apparent to management. Indeed,
Kaspar included Carey in his activities. As related below, Kas-
par gave a newly drafted employee association form to Carey
who said it “looked good.” Carey’s approving response is in-
consistent with the threats Kaspar ascribes to him. Finally, in
explaining his reasons for engaging in a strike (described here-
after) to Carey, Kaspar, by his own account, did not include any
of Carey’s alleged behavior as an “unfair labor practice.” His
failure to do so casts further doubt on the veracity of his ac-
count. Accordingly, as to this and other testimony noted below,
I have declined to accept Kaspar’s statements.
I. The Employee Association
In early September, after talking to employees at the Long
Beach site about wages and working conditions, Kaspar sug-
gested employees form an association and work together to
improve working conditions. On September 9, he created ap-
plication forms for the so-called Quantum Electric employee
association, which provided space for name, address, phone
number, and areas of employment concerns, and read as fol-
lows in pertinent part:

Employees of Quantum Electric are forming an Employee
Association. This association will work to improve working
conditions for all field electricians working for Quantum. If
you would like to join, or have more information please con-
tact Mike Kaspar who is an employee of Quantum and is cur-
rently assigned at AMC Theater in Long Beach. Please fill

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
out the enclosed information sheet and send it to . . . Mike
Kaspar . . . .

On the following day, Kaspar disseminated the forms to
workers and to Carey who said it looked good to him. Kaspar
drew up another version of the application form, stating the
goals of the association and claiming that interest among some
employees was high “despite management’s attempts to dis-
courage membership,” and disseminated that at work as well.
On that day or the next, Krause came to the Long Beach site
with a document for employees to sign. According to Kaspar,
Krause said the purpose of the document was to let employees
know that Respondent wanted nothing to do with an employee
association, that they were not condoning it, and they didn’t
want it to exist.21 Six employees including Carey signed the
document, dated September 6, which read:

One of our employees is in the process of trying to
form an employee association under the name of “Quan-
tum Electric Employee Association.” The management of
Quantum Electric, Inc. has no affiliation, does not author-
ize, or sanction the use of the name Quantum Electric in
any association.
Quantum Electric, Inc. does not allow any association
to conduct its business during scheduled work periods on
our jobs except during scheduled coffee or lunch breaks.
If you have any questions about associations or or-
ganizations that appear to be associated or doing business
with our Company, please feel free to call any of Quantum
Electric, Inc. management.

On September 10, Kaspar telephoned Losch after work and
told her employees felt Respondent should raise its wages to be
more in line with other nonunion contractors in the area, and
suggested a $2-per-hour raise for journeymen and a $1-per-
hour raise for apprentices. According to Kaspar, Losch said,
“You have no right to speak to any of the other workers about
their wages. If you want to talk about your own wage, that’s
fine. If you’re not happy with the amount of money that you’re
making here, you’re free to quit, and the other employees, if
they’re not happy making what I’m paying them, then they’re
free to quit also, but you have no right to discuss other people’s
wages with them or with me.” Kaspar said he intended to con-
tinue speaking to employees, that they wanted a democracy not
a dictatorship. According to Kaspar, Losch said Respondent
would stick with its policy and that Kaspar was not allowed to
speak to her on behalf of other employees. Although Losch
had no independent recollection of this conversation, she identi-
fied a memorandum she had prepared for Respondent’s attor-
ney on September 12 in which she memorialized the conversa-
tion as follows:

Mike Kaspar called me at the office around 4:15 pm on Tues-
day afternoon on Sept. 10, 1996. He stated he was represent-
ing several employees as a representative of the Quantum
Electric Employee’s Association. He stated that our wages
were below industry averages, even for non-union employees.
I told him if he felt he merited a raise, that the procedure pre-

21 I do not credit Kaspar’s testimony as to what Krause said.
sented to him in his job orientation meeting with me was: af-
ter one month with the company he could request an evalua-
tion from his supervisor and we would evaluate whether or
not there was a change in his status that would merit a raise.
He restated that he was not seeking a personal merit raise for
himself, but was requesting general raise[s] for all employees,
$1 for apprentices and $2 for journeymen. I restated to him,
according to our company policy, each employee must make
their own individual request for an evaluation for a wage in-
crease and that the company does not recognize his request
for any other employee than himself. He said, do you want
me to tell the employees you are dictator and this is not a de-
mocracy. I said you may tell them what you wish. He came
back to his original request of a raise for the employees and I
referred again to the company policy, told them [sic] that this
conversation was just going around and around and it was
time to end it. I also told him if had future concerns to discuss
them with his supervisor or he could call us.22
J. Kaspar’s Strike
Kaspar commenced a strike against Respondent, which he
characterized as an “unfair labor practice strike.” By fax dated
September 12, he informed Respondent, “I, Mike Kaspar, am
on strike as of 9-12-96, due to violations of workers rights un-
der the National Labor Relations Act. I am not quitting my job.
I am on strike.” The following morning, by telephone, Carey
told Kaspar that Respondent had informed him Kaspar was on
an economic strike because of wages. Kaspar said the strike
was for Respondent’s violations of employee rights, including
the interrogation of Clark during his employment interview,
Losch’s telling him he could not discuss other workers’ wages
with her and that he had no right to be involved in what their
pay practices were, and his awareness of the termination of
employees from another jobsite because of their union activi-
ties. Carey asked how long Kaspar would be out on strike;
Kaspar said he did not know.
By letter dated September 12, Losch wrote to Kaspar as fol-
lows:

The Company is in receipt of your September 11, 1996
and September 12, 1996 letters in which you claim to be
on strike from the Company due to alleged “violations of
workers rights under the National Labor Relations Act.”
The Company has not engaged in any unlawful con-
duct. You are an economic striker. Accordingly, the
Company has the legal right to replace you.
If you do not report for work at the Company’s [Long
Beach site] within three (3) working days of your receipt
of this letter, the Company intends to replace you. If you
elect to report for work within the period described above,
you will be assigned to the job duties you performed on
your most recent day of work, September 11, 1996.23

22 I credit Losch’s memorialized account of her September 10 con-
versation with Kaspar.
23 Counsel for the General Counsel characterizes this letter as plac-
ing a time limitation on Kaspar’s strike. However, the letter only gives
a deadline beyond which Kaspar will be permanently replaced.

QUANTUM ELECTRIC, INC. 1277
Thereafter, Respondent filled Kaspar’s position with another
worker.24 Kaspar picketed the Long Beach site, sporadically,
over the next 2 months. Kaspar picketed on about six occa-
sions in all and was sometimes joined by two Local 11 organiz-
ers.
By personal delivery of a letter dated November 19, 1996, to
Respondent’s office Kaspar offered to return to work, as fol-
lows:

This is to inform you that I, Mike Kaspar, am offering to un-
conditionally end my Unfair Labor Practice Strike against
Quantum Electric. I wish to return to work immediately.
Please contact me as to where and when to report to work.

Respondent did not answer Kaspar’s offer to return to work
because Swanson and Losch believed he had quit his job in
September when he failed to return to work. After sending his
letter of November 19, Kaspar called to speak to Losch and an
unidentified male speaker told him that Losch said he had been
replaced and there was no longer a job available for him. Re-
spondent’s records show only two hires after November 19 at
the following wage rates: (1) Fernando Espinoza—$7, (2) Steve
Easton—$20.
K. Respondent’s Discharge of Tomas
When Respondent hired Tomas on September 19 to work on
the Cal Med site, he signed Respondent’s August 8 clothing
policy memo. While working, he observed other employees
wearing T-shirts with such logos as “Santa Anita” and “Marl-
boro.” After a week on the job, Tomas wore T-shirts with
“Nestle” or “UCLA” superscribed on them. Upon the conclu-
sion of the Cal Med site job, Respondent transferred Tomas to
the Long Beach site supervised by Carey. According to Tomas,
employees at the Long Beach site wore T-shirts with such logos
as “Harley-Davison.” Losch and Cramer maintained that after
issuance of the clothing policy memo, employees no longer
wore logo-superscribed T-shirts. Cramer testified that after the
policy issued, Respondent gave collared blue T-shirts to em-
ployees to wear.
In October, Turpin visited the Long Beach jobsite and talked
about union benefits with a group of employees that included
Carey. Turpin gave Tomas a T-shirt bearing a Local 11 insig-
nia. On October 24, Tomas wore the Local 11 T-shirt to work.
Carey told him he was not supposed to wear that shirt on the
jobsite. Later, Carey told Turpin that Losch had said she would
like him to turn the shirt inside out. Tomas refused, and Carey
told him to go to Respondent’s office. Tomas gathered his
tools and reported to Respondent’s office. Losch told Tomas
that if he refused to turn the shirt inside out, he would be writ-
ten up and after the second offense, he would be fired. Tomas
said, “Well, I’m not going to do it.” Losch gave him a per-
formance warning form to sign and said she would mail him his
check. The explanation checked on the performance warning
form read “Violation of the company dress code.” Losch’s
further written comment read, “Wearing T-shirt or hard hat
with unauthorized labels or logo—employee came to office

24 Although Losch could not recall specifically who was hired to fill
Kaspar’s position, she testified that anyone hired after September 12th
could have been slotted into Kaspar’s vacant position.
refused to turn shirt inside out because Union would not let him
join if he didn’t—Employee terminated for refusal to follow
company policy.”
III. DISCUSSION
A. Alleged Violations of Section 8(a)(1)
The General Counsel alleged at Paragraph 12 that Vaccaro
violated Section 8(a)(1) of the Act when he (1) told employees
if they joined the union, they would be unemployed for months,
(2) threatened an employee with termination if he joined the
union, and (3) told employees not to join the union. The first
allegation relates to Vaccaro’s having told several employees in
June or July that he wouldn’t join the union because “they’ll
have you sitting on the books [six months to a year].” In the
Board’s view, “generally, a supervisor may lawfully express his
or her personal views of or experience with unionism,” Bad-
dour, Inc., 281 NLRB 546, 548 (1986). Further, “The Act does
not preclude a supervisor from expressing opinions or pro-
nouncing antipathy to unions so long as the statements are not
coercive [footnote omitted].” Wilker Bros. Co., 236 NLRB
1371, 1372 (1978). It is clear Vaccaro merely stated his rea-
sons for not wanting to join the union and his opinion that
membership might result in an employee remaining on the un-
ion’s out-of-work list and unemployed for significant periods of
time. There was nothing in Vaccaro’s statement to suggest
Respondent would take any unfavorable action toward employ-
ees. I find Vaccaro’s statement reflected his personal opinion
and was uncoercive. As to the remaining allegations relating to
Vaccaro, there is no credible evidence to support them. Ac-
cordingly, I shall dismiss these allegations of the complaint.
The General Counsel alleged at paragraph 13 that Losch vio-
lated Section 8(a)(1) of the Act when she (1) interrogated ap-
plicants about their union activities, (2) threatened that union-
affiliated applicants would not be hired because of their union
activity, and (3) forbade an employee from discussing or nego-
tiating on behalf of fellow employees regarding wages.
As to the first allegation, during Losch’s interview of Clark,
she asked him if he were applying in order to organize for the
union. The Board’s test of an interrogation in violation of Sec-
tion 8(a)(1) is “whether, under all the circumstances, it rea-
sonably tends to interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights . . . .” Among the factors
to be considered are the background of the questioning, the
nature of the information sought, the identity of the interroga-
tor, and the place and method of the questioning.25 I find in the
instant circumstances that Losch’s question was not coercive.
Clark applied for employment at Local 441’s suggestion and
openly listed himself as its member. No hostility or threat,
explicit or implied, accompanied Losch’s question. The ques-
tion itself along with Losch’s query as to how Clark could work
for so low an amount suggests Losch was attempting to ascer-
tain if Clark had a sincere desire for employment with Respon-
dent. I recognize that “motive or intent in making [a] statement
25 SKD Jonesville, 340 NLRB No. 11, slip op. at 2–3 (2003), quoting
Rossmore House, 269 NLRB 1176, 1177 (1984) enfd. sub nom. Hotel
& Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1995); Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
has no relevancy in an 8(a)(1) context . . .” and that lawfulness
“does not depend on motive or the successful effect of the coer-
cion,” Exterior Systems, Inc., 338 NLRB No. 82, slip op. at 4
(2002). However, viewed objectively and in context, Losch’s
question reflects an innocuous and legitimate business concern
unlikely to restrain, coerce, or interfere with an employee’s
rights guaranteed under the Act. Losch accepted Clark’s re-
sponse “without objection or further probing.”26 I conclude,
therefore, that Losch did not violate the Act by asking Clark if
he sought employment in order to organize for Local 441.
As to the second allegation, it presumably relates to state-
ments Losch made to Clark, and I find she made no threat that
union-affiliated applicants would not be hired.
As to the third allegation, it is undisputed that Losch de-
clined to discuss the wages of other employees with Kaspar.
Essentially, Kaspar sought to negotiate wages for other em-
ployees, and Respondent refused to do so. The General Coun-
sel has not explicated why Respondent’s refusal violates the
Act. The Board does not require an employer to grant recogni-
tion to a union or to enter into a bargaining relationship volun-
tarily. See Terracon, Inc., 339 NLRB No. 35, slip op. at 4
(2003). Presumably, the same reasoning applies to employee
association attempts to achieve bargaining rights. As I have not
accepted Kaspar’s testimony that Losch told him he had no
right to talk to other employees about their wages or that she
forbade him from doing so, I find there is no evidence of any
violation of the Act in Losch’s interchange with Kaspar regard-
ing employee wages.
The General Counsel alleged at paragraph 14 that Carey vio-
lated Section 8(a)(1) of the Act when he (1) interrogated em-
ployees about their and other employees’ union activities and
(2) created an impression of surveillance by directing an em-
ployee to inform him of the union activities of other employees.
These allegations are based on the testimony of Kaspar, which I
have discredited. Accordingly, I find no evidence that Carey
violated the Act, and I shall dismiss the allegations of para-
graph 14 of the complaint.
The General Counsel alleged at paragraph 15 that Krause
violated Section 8(a)(1) of the Act when he directed employees
to sign Respondent’s written response to the formation of the
employee association. The General Counsel does not allege the
written response to be unlawful, and there is nothing in it of a
restraining or coercive nature. The response merely notifies
employees that the employee association is not affiliated with
Respondent, although its title includes Respondent’s name, and
it lawfully instructs employees to conduct association business
during appropriate nonwork periods. Employees were, again
lawfully, requested to sign the response to signify they had read
it. There is no credible evidence as to what Krause said when
presenting the response for employee signature. Accordingly, I
find no evidence that Krause violated the Act, and I shall dis-
miss the allegations of paragraph 15 of the complaint.
The General Counsel alleged at paragraph 16 (included by
amendment at the hearing) that Cramer violated Section 8(a)(1)

26 See West Maui Resort Partners, 340 NLRB No. 94, slip op. at 6
(2003) (asking an employee how he felt about the union, in the circum-
stances, did not reasonably tend to restrain or coerce employees).
of the Act by creating the impression of surveillance of and
threatening employees because of their union activities. The
allegations are based on testimony of Lozano to the effect that
Cramer said employees would be fired if they did not stop talk-
ing to the Union, which testimony I have specifically discred-
ited. Accordingly, I find no evidence that Cramer violated the
Act, and I shall dismiss the allegations of paragraph 16 of the
complaint.
B. The Termination of Cornejo
The question of whether Respondent violated the Act in ter-
minating Cornejo rests on its motivation. The Board estab-
lished an analytical framework for deciding cases turning on
employer motivation in Wright Line.27 To prove that an em-
ployee was discharged in violation of Section 8(a)(3), the Gen-
eral Counsel must first persuade, by a preponderance of the
evidence, that an employee’s protected conduct was a motivat-
ing factor in the employer’s decision. If the General Counsel is
able to make such a showing, the burden of persuasion shifts
“to the employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct.”
Wright Line, supra at 1089. The burden shifts only if the Gen-
eral Counsel establishes that protected conduct was a “substan-
tial or motivating factor in the employer’s decision.” Bud-
rovich Contracting Co., 331 NLRB 1333, 1333 (2000). Put
another way, “the General Counsel must establish that the em-
ployees’ protected conduct was, in fact, a motivating factor in
the [employer’s] decision.” Webco Industries, 334 NLRB 608
fn. 3 (2001).
The elements of discriminatory motivation are union activ-
ity, employer knowledge, and employer animus. Farmer Bros.
Co., 303 NLRB 638, 649 (1991). Here, the first two elements
are met. In July, Cornejo obtained permission from his super-
visor to leave work early to attend a union meeting; hence,
Cornejo was engaged in union activity, and Respondent knew
of it. As to the third element, there is no significant, direct
evidence that Respondent bore animosity toward Cornejo or
any other employee for his union involvement or support.
However, such direct evidence is not essential. In determining
whether the General Counsel has met his initial burden of prov-
ing that an employee’s protected activity was a motivating fac-
tor in an employer’s decision to discharge the employee, the
Board has held that “a discriminatory motive may be inferred
from circumstantial evidence and the record as a whole, and
that direct evidence of union animus is not required.” Tubular
Corp. of America, 337 NLRB 99, 99 (2001) (citations omitted).
There is no circumstantial evidence from which I can infer a
discriminatory motive in Respondent’s discharge of Cornejo.
Respondent had a practice of laying off employees as business
exigencies dictated. Evidence was adduced that in July, Vac-
caro informed Swanson that work was slowing on the USC site
and he was looking to lay off employees. There is no evidence
that Cornejo’s lay off was otherwise motivated. Considering
all the evidence, I cannot find that Cornejo’s protected activity
27 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).

QUANTUM ELECTRIC, INC. 1279
was a motivating factor in Respondent’s decision to lay him
off. Accordingly, I find the General Counsel failed to meet his
Wright Line burden, and I shall dismiss the allegations of the
complaint relating to Cornejo.
C. Disciplinary Notices to Gonzales, Koenig, and McCloyn,
and Terminations of Gonzales, Koenig, McCloyn, Lozano,
and Palazzola
It is essentially undisputed that Respondent’s stated reason
for issuing disciplinary notices to Gonzales, Koenig, and
McCloyn and for the later terminations of Gonzales, Koenig,
McCloyn, Lozano, and Palazzola was their leaving work early
on August 2.28 It is also clear company management was gen-
erally aware of its employees’ union activities and specifically
aware the above employees left work early to attend a union
meeting.
Under the Wright Line test described above, the General
Counsel bears an initial burden of demonstrating that protected
concerted activity was a motivating factor in Respondent’s
actions herein. There is no question that attending a union
meeting is protected activity under the Act. If that were the
disciplined employees’ sole conduct herein, it would be a fore-
gone conclusion that Respondent’s disciplinary notices and
terminations for the activity were unlawful. But attendance at a
union meeting was not the employees’ sole conduct. The five
employees also left work early. In doing so, they were not
engaging in a strike, withholding of work, or other permissible
form of protest to demonstrate their disagreement with working
conditions.29 They simply ceased work early to facilitate at-
tendance at a union meeting. Leaving work early is not pro-
tected activity even when the object of leaving is to engage in
protected activity. See House of Raeford Farms, Inc., 325
NLRB 463 at fn 2 (1998), where the Board found “insufficient
evidence to support a finding that the employees were acting to
protest mandatory overtime or any other term or condition of
employment [when they left work early];” Specialized Distribu-
tion Management, Inc., 318 NLRB 158 (1995), where employ-
ees left their building without permission to attend a union
meeting while on the clock; Bird Engineering, 270 NLRB 1415
(1984), where the Board found employees’ concerted violation
of a rule prohibiting them from leaving the employer’s facility
during their work shifts to be unprotected; Scioto Coca-Cola
Bottling Co., 251 NLRB 766 (1980), where the Board said,
“There must be some evidence on the record from whatever
source that the activity engaged in was not only concerted but,
more significantly, that it was . . . protected by Section 7 of the
Act”; and Crown Coach Corp., 155 NLRB 625 (1965), where

28 Respondent presented evidence that Koenig and Palazzola were
coincidentally slated for work-force-reduction layoff on August 2 prior
to their leaving early. Both were rated ineligible for rehire because
they left work early. Because the evidence concerning their layoff
pursuant to a reduction in work force is confused and because they
were denied reemployment rights, I have considered that they, too,
were terminated for leaving early.
29 I am mindful that employees need not present a grievance or de-
mand to an employer for a concerted work cessation to be protected.
Accel, Inc., 339 NLRB No. 134 fn. 3 (2003). However, there is no
evidence and no contention here that employees left work as a protest.
employees left work to attend a union “demonstration meet-
ing.”
Although the employees’ absenting themselves from work in
the above circumstances was unprotected, Respondent’s termi-
nation of them is defensible only if leaving work was the reason
for the terminations. If Respondent’s actual motivation was
animosity toward employees’ attendance at a union meeting,
Respondent violated the Act when it disciplined and terminated
the employees. After considering all the evidence and applying
the shifting burden process mandated by Wright Line, I con-
clude that Respondent terminated its employees for leaving
work early on August 2 without regard to their attendance at a
union meeting. Or to put it another way, I conclude that Re-
spondent would have terminated the five employees for leaving
work early even if the employees had absented themselves to
engage in wholly unprotected activity such as attending a sports
event.
In reaching the above conclusion, I have reviewed several
factors. I have considered that although Respondent knew of
its employees’ union activity, indeed had known of it for many
weeks, there is no credible evidence of overt animosity by Re-
spondent toward the activity. There is also no circumstantial
evidence from which I can infer a discriminatory motive in
Respondent’s discharge of those employees who left early.30
The five terminated employees left work on August 2 without
following Respondent’s customary procedure for approved
absences, and none had permission to do so. Although, Palaz-
zola notified McFarland on August 1, and the other four noti-
fied their foremen on August 2 of their intended absences, they
did not obtain clearance from one of Respondent’s managers,
and Respondent evidenced its disapproval by requiring
McCloyn, Gonzales, and Koenig to sign performance warnings
prior to their leaving early. As to Palazzola and Lozano, it is
unclear if Acting Foreman Hooper communicated their inten-
tion of leaving early to management. Palazzola told Hooper he
had already notified the office, but he did not say and there is
no evidence he had permission to leave. Although Hooper said
he would communicate Lozano’s intention to leave early to the
office, he never got back to Lozano. Accordingly, none of the
five employees could reasonably have believed he had valid
permission to leave the job early. I have further considered that
the only evidence regarding Respondent’s pre-August 2 attitude
toward absenteeism shows Respondent to have enforced its
attendance policies strictly. Thus, Respondent gave Gonzales a
warning for his July 30 absence even though he left a message
on the office answering machine before the beginning of his
shift and gave an arguably reasonable excuse of lack of trans-
portation. There is, therefore, no evidence that Respondent
tolerated unauthorized absences. Moreover, there is no evi-
dence Respondent had ever been faced with a situation where
numerous employees discontinued work at the same time, and
30 Counsel for the General Counsel argues that Respondent presented
shifting defenses, which evidence discriminatory motive. Although
Respondent’s response to its employees’ absences was neither prompt
nor entirely direct, I cannot find union animus as its basis. Respondent
was presented with unprecedented group employee conduct of leaving
work early. In these circumstances, Respondent’s handling of the
situation was not so unreasonable as to show discriminatory motive.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
it is reasonable to expect Respondent to view the unanticipated
and unexcused absence of a large number of its employees with
even greater reprehension than isolated absences. Accordingly,
I conclude Respondent would have disciplined and terminated
employees for leaving work early on August 2, irrespective of
their reasons for doing so and, thus, did not violate Section
8(a)(3) and (1) of the Act by issuing disciplinary notices to
Gonzales, Koenig, and McCloyn and thereafter terminating
Gonzales, Koenig, McCloyn, Lozano, and Palazzola. Accord-
ingly, I shall dismiss these allegations.
D. The Refusal to Hire Clark
In refusal to hire cases, the General Counsel bears the burden
under Wright Line31 and FES32 of showing that Respondent
was hiring at the time Clark applied for employment, that Clark
had experience and training relevant to the requirements of the
position for hire, and that antiunion animus contributed to Re-
spondent’s decision not to hire him. Caruso Electric Corp.,
332 NLRB 519 fn. 2 (2000). The General Counsel has met its
burden as to the first two elements but not as to the third. The
sum of the credible evidence is that Clark, an overt union appli-
cant, sought employment with Respondent on August 27, but
Respondent never employed him. No evidence shows Respon-
dent’s failure to hire Clark was motivated by antiunion consid-
erations. Although Clark appears to have tested better than
some employees, a test score is only one of several factors Re-
spondent considers in hiring employees. There is no evidence
as to Clark’s ranking in other factors, and Losch’s interview
questions and comments do not reveal antiunion animus.
Rather, they suggest an entirely lawful concern that a prospec-
tive employee might not be interested in or committed to per-
manent employment. There is no evidence that Respondent’s
decision not to hire Clark was not “based on neutral hiring poli-
cies, uniformly applied [citation omitted].” Ken Maddox Heat-
ing & Air Conditioning, Inc., 340 NLRB No. 7, slip op. at 3
(2003). Counsel for the General Counsel argues Respondent
failed to present any “viable business justification” for failing
to hire Clark. However, Respondent does not have any burden
to do so unless the General Counsel first meets its burden.
Since I have concluded the General Counsel has not met its
initial burden, I shall dismiss this allegation.
E. The Termination of Tomas
There is no allegation that Respondent’s clothing policy
memo, distributed to employees on August 8, was propounded
or implemented in violation of the Act. There is also no clear
evidence that Respondent disparately applied the policy to em-
ployees who wore clothing with union-related logos and super-
scriptions. Prior to dissemination of the clothing policy memo,
employees wore T-shirts with various logos and superscriptions
apparently at will. After publication of the clothing policy
memo the question of whether employees wore clothing with
“graphics or printed text other than Quantum Electric, Inc.” is
disputed. Tomas, who was hired after issuance of the clothing

31 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
32 331 NLRB 9 (2000), affd. 301 F.3d 83 (3d Cir. 2002).
policy memo and who signed it upon employment, said he ob-
served other employees wearing logo-bearing or superscribed
T-shirts at both the Cal Med and Long Beach sites where he
worked. Losch and Cramer contended employees were not
permitted to wear prohibited clothing. Both accounts may, of
course, be valid. Tomar’s observations may be accurate, but
Respondent may have taken steps to require offending employ-
ees to comply with its clothing policy regardless of the logo or
inscription content. No evidence was adduced that on occa-
sions when employees wore nonregulation clothing, any super-
visor observed it. No evidence was adduced that noncompliant
employees were not warned of the consequences. No evidence
was adduced of repeat offenders, which could suggest Respon-
dent was not uniformly applying the policy. The General
Counsel does not contend, and I do not find, any disparate en-
forcement of Respondent’s clothing policy.
Notwithstanding Respondent’s lack of union animus in ap-
plying its clothing policy, employees have a right under Section
7 of the Act to wear and display union insignia while at work.
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–803
(1945). Absent “special circumstances,” the promulgation or
enforcement of a rule prohibiting the wearing of such insignia
violates Section 8(a)(1) of the Act. The special circumstances
exception is narrow and “a rule that curtails an employee’s
right to wear union insignia at work is presumptively invalid.”
E & L Transport Co., 331 NLRB 640 fn. 3 (2000). Respondent
has not elucidated any special circumstances to justify the pro-
hibition of employees’ wearing union T-shirts. There is noth-
ing to suggest the clothing policy is necessary to maintain pro-
duction or discipline or to ensure safety. See id. The only pos-
sible special circumstance that might arguably apply is where
display of union insignia may “unreasonably interfere with a
public image which the employer has established as part of its
business plan.” United Parcel Service, 312 NLRB 596, 597
(1993). Respondent has not, however, presented evidence of
that circumstance, and it cannot be inferred from the record,
particularly where Respondent’s employees do not normally
interact with the public. Accordingly, Respondent violated
Section 8(a)(1) of the Act when its supervisors directed Tomas
to reverse his union-superscribed T-shirt on penalty of disci-
pline.
Respondent gave Tomas two opportunities to avoid dis-
charge by reversing his union-superscribed T-shirt. He de-
clined both and thus defied direct instructions from his supervi-
sors. However, an employer may not discharge an employee
for refusing to comply with an unlawful order prohibiting pro-
tected activity. Kolkka Tables & Finnish-American Saunas,
335 NLRB 844, 852 (2001); Simplex Wire & Cable Co., 313
NLRB 1311, 1315 (1994). A refusal to comply with an unlaw-
ful order does not constitute “insubordination upon which a
sustainable discharge [can] be based.” Kolkka, supra, citing
AMC Air Conditioning Co., 232 NLRB 283, 284 (1977). Inas-
much as Respondent does not dispute its discharge of Tomas
for his failure to reverse his union-inscribed T-shirt, it is unnec-
essary to apply the Wright Line analysis to this discharge. I
find Respondent’s discharge of Tomas violated Section 8(a)(3)
of the Act.

QUANTUM ELECTRIC, INC. 1281
F. Failure to Reinstate Kaspar to His Prestrike
Position of Employment
Kaspar claimed to have engaged in an unfair labor practice
strike when he ceased working on September 12. However, I
have found the incidents on which he based his strike, i.e., in-
terrogation of Clark, Respondent’s refusal to discuss employee
wages with him, and the terminations of Gonzales, Koenig,
McCloyn, Lozano, and Palazzola are not unfair labor prac-
tices.33 Consequently, Kaspar cannot have been an unfair labor
practice striker. He was, during the entirety of his strike, an
economic striker, and Respondent lawfully informed him on
September 12 that it intended to replace him within 3 working
days.34
Permanently replaced economic strikers who make uncondi-
tional offers to return to work, as Kaspar did on November 19,
have the right to full reinstatement when positions become
available and the right to be placed on a preferential hiring list
until that time. “[W]ell-settled precedent dictates that an em-
ployer will be held to violate Section 8(a)(3) and (1) of the Act
if it fails to immediately reinstate striking workers on their
unconditional offer to return to work, unless the employer can
establish a ‘legitimate and substantial business justification’ for
its failure to do so. See NLRB v. Fleetwood Trailer Co., 389
U.S. 375, 378 (1967).” Capehorn Industry, 336 NLRB 364, 365
(2001). Permanent replacement of economic strikers is such a
justification, id. at 379. An economic striker who is perma-
nently replaced thus loses his right to immediate reinstatement.
NLRB v. International Van Lines, 409 U.S. 48, 50 (1972). Any
discrimination in putting strikers back to work is, of course, a
violation of the Act. NLRB v. Mackay Radio & Telegraph Co.,
304 U.S. 333, 346–347 (1938). The employer bears the burden
of proving the permanent status of hired replacements. Cape-
horn Industry, supra, slip op. at 3. The question is whether
Respondent permanently replaced Kaspar so as to justify its
failure to reinstate him upon his November 19 unconditional
offer to return to work.
In assessing whether Respondent has met its burden of prov-
ing it permanently replaced Kaspar, I have considered several
circumstances: (1) The Region held the case in abeyance for
nearly 6 years; some business records were not available and
Losch’s recall of employee hiring and placement had under-
standably faded. (2) I found Losch fully credible; I saw no
evidence of either attempt or desire to conceal information. (3)
Swanson and Losch, nonattorneys, appeared as president and
secretary-treasurer of Respondent pro se and are clearly unso-
phisticated in the legal niceties of permanent replacement
proof. (4) The question of permanent replacement arises in the
context of the construction industry, the employment practices
of which markedly differ from those in the manufacturing or

33 As found above, the discharge of Tomas was an unfair labor prac-
tice. However, Kaspar did not claim that event as a basis for his con-
tinued strike following Tomas’s October 24 discharge, and there is no
evidence he knew of it prior to his November 19 offer to return to
work.
34 Although Respondent did not explain Kaspar’s reinstatement
rights, it was not required to do so. See Eagle Comtronics, 263 NLRB
515, 515–516 (1982).
production industry. In light of those factors, I have examined
what little evidence exists regarding Respondent’s replacement
of Kaspar.
By letter dated September 12, when legal counsel apparently
still represented Respondent, Losch informed Kaspar that he
would be replaced if he did not report to work within 3 working
days. Kaspar did not report to work. Respondent thereafter
hired Donald Low and Stewart Gonzales on September 16 and
25, respectively, at $14 and $15.50 per hour, wages similar to
Kaspar’s rate of $15. When Kaspar followed up on his No-
vember 19 unconditional offer to return to work, he was in-
formed that he had been replaced and no job was any longer
available for him.35 The wage rates of Respondent’s only two
hires following November 19 ($7 and $20) indicate that neither
was hired for the position Kaspar had filled.
The evidence as a whole persuades me that Respondent per-
manently replaced Kaspar and that no opening in his position
thereafter arose. Although Losch was unable to identify any
employee who filled Kaspar’s position as a journeyman electri-
cian, she testified that someone from a shifting pool of electri-
cians filled it. Respondent’s hiring records show 14 employees
were hired at wage rates suggestive of journeyman electrician
status during the period of Kaspar’s strike. While no evidence
was adduced that any of those journeymen were specifically
told they were permanent employees, the record is clear that
Respondent hired all electricians to remain on the job until
employee conduct, workflow, or job completion dictated oth-
erwise. In the construction industry, such is about as perma-
nent as nonsupervisory employment gets.36 Respondent ex-
perienced a significant decline in hiring after October. Re-
spondent hired four employees in November but only two at a
rate even approaching journeyman wages and thereafter hired
two employees in December and March, respectively, neither
of which was an apparent journeyman. It is reasonable to infer
from these facts, and there is no evidence to gainsay, that Re-
spondent hired a permanent replacement for Kaspar’s position
after he struck and that Kaspar’s job was unavailable on or after
the date he unconditionally offered to return to work. Accord-
ingly, I find Respondent was justified in declining to reinstate
Kaspar on and after his November 19 unconditional offer to
return to work, and I shall dismiss the allegations relating to
Respondent’s failure to reinstate Kaspar.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act on Octo-
ber 24, 1996, by requiring Damir Tomas to reverse a T-shirt
showing support for International Brotherhood of Electrical
35 Losch’s belief that Kaspar had earlier quit has no bearing on
whether he had been permanently replaced.
36 As Senator Humphrey, reporting from the Committee on Labor
and Public Welfare (S. Rep. No. 1509, 82nd Cong. 2d Sess. (1952))
pointed out, the building and construction industry is characterized by
casual, intermittent, and often seasonal employer/employee relation-
ships on separate projects. The Board also recognized that the con-
struction industry is one “where workers change employers from day to
day or week to week.” James Luterbach Construction Co., 315 NLRB
976, 983 (1994).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
Workers, Local Union 441, International Brotherhood of Elec-
trical Workers.
2. Respondent violated Section 8(a)(3) and (1) of the Act by
terminating Damir Tomas on October 24, 1996, for refusing to
comply with an unlawful order prohibiting protected activity.
3. Respondent did not otherwise violate the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent having unlawfully terminated Damir Tomas, it
must make him whole for any loss of earnings and other bene-
fits, computed on a quarterly basis from date of termination to
the date he would have been lawfully laid off at the conclusion
of work at the Long Beach and/or Cal Med sites,37 less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended38
ORDER
The Respondent, Quantum Electric, Inc., Los Alamitos, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from wearing clothing showing
support for International Brotherhood of Electrical Workers,
Local Union 441, International Brotherhood of Electrical
Workers, or any other labor organization.
(b) Terminating any employee for refusing to comply with
an unlawful order prohibiting protected activity such as wear-
ing clothing showing support for International Brotherhood of
Electrical Workers, Local Union 441, International Brother-
hood of Electrical Workers, or any other labor organization.
(c) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.

37 I leave to compliance the question of whether Tomas would have
been transferred to any other jobsite upon the conclusion of the Long
Beach and/or Cal Med work and thus entitled to a longer period of
backpay. I have not ordered Respondent to offer reinstatement to
Tomas as the length of time that has transpired between the commis-
sion of the unfair labor practice and the trial of this matter make a rein-
statement order impracticable and inequitable in a construction industry
setting.
38 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(a) Make Damir Tomas whole for any loss of earnings and
other benefits suffered as a result of his unlawful termination in
the manner set forth in the remedy section of the decision.
(b) Expunge from its files any reference to Damir Tomas’s
unlawful termination and thereafter notify him in writing that
this has been done and that the termination will not be used
against him in any way.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Los Alamitos, California, copies of the attached notice
marked “Appendix.”39 Copies of the notice, on forms provided
by the Regional Director for Region 21 after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since October 24, 1996.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

39 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.”