A/Z Electric, Inc.

356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A/Z Electric, Inc. and Kevin Lassonde A/Z Electric, Inc. and International Brotherhood of Electrical Workers, Local 35, AFL-CIO, Peti- tioner. Cases 39-CA-2722 and 39-RC-632 5 December 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 18 August 1986 Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondent filed exceptions' and a supporting brief, and the General Counsel filed limited excep- tions and a supporting brief. The Respondent filed a brief in opposition to the General Counsel's ex- ceptions. The National Labor Relations Board has delegat- ed 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, fmdings,2 and conclusions and to adopt the recommended Order.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, A/Z Elec- tric, Inc., Ledyard, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that Case 39-RC-632 be remanded to the officer in charge to open and count the ballots of Terrence Lanier, Kevin Las- sonde, and Keith Stoll, and to issue a revised tally of ballots and an appropriate certification. 1. The Respondent has excepted only to the judge's sustaining of the Petitioner's challenges to the ballots of Thomas Casey, Meade C. Schott, and Harry L. Schroeder Jr. 2 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. In sec III,B,4,d of his decision, the judge made reference to "Tempo- rary Apprentice Identification "cards issued to employees Casey, Schott, and Schroeder Jr on 28 August 1985. The record reveals that these cards were entitled "Temporary Apprentice Registration." We correct the error. 2 The General Counsel has excepted to the judge's failure to include in his recommended Order a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing the Order. Under the circumstances of this case, we find it unnecessary to include such a clause. Peter W. Gallaudet, Esq., for the General Counsel. Peter A. Janus, Esq. (Siegel, O'Connor, Schiftt, Zangari, & Kainen, P. C.), of Hartford, Connecticut, for the Re- spondent. Burton S Rosenberg, Esq., of Hamden, Connecticut, for the Petitioner. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. These consolidated cases were heard by me at Hartford, Connecticut, on 18, 19, 20, 21, and 24 March 1986. The charge and amended charges against the Respondent, A/Z Electric, Inc., were filed by Kevin Lassonde on 1 August, 13 September, and 27 November 1985. A com- plaint thereon was issued on 27 December 1985, in Case 39-CA-2722. International Brotherhood of Electrical Workers, Local 35, AFL-CIO (the Union), having filed a petition for an election on 27 August 1985, an election was conducted pursuant to a Stipulation for Certification Upon Consent Election on 8 October 1985. The Union and the Respondent both filed objections to conduct claimed to have affected the results of the election. Chal- lenges to some of the ballots were made by the Union and by the Board agent who supervised the election. In Case 39-RC-632, a Report on Objections and Chal- lenged Ballots was issued on 30 December 1985, which recommended that certain of the objections, and chal- lenges be referred for hearing before an administrative law judge. An order consolidating the cases was issued on 29 February 1986. The Allegations of Case 39-CA-2722 The complaint alleges that the Respondent violated Section 8(a)(1) of the Act by threatening to close its business if the employees selected the Union as their bar- gaining representative (acting through Edward Lorenz on 6 March, 21 June, and 26 July 1985),1 and by firing Keith Stoll and Kevin Lassonde on 28 July because on 23 July they had concertedly complained to the Re- spondent regarding wages, hours, and working condi- tions. The Respondent is alleged to have violated Section 8(a)(1) and (3) of the Act by discouraging membership in a labor organization through discrimination in terms of employment, in that the Respondent announced and im- plemented a $1-per-hour wage increase to all of its em- ployees on 5 August. The Respondent's answer denies all allegations of wrongdoing and statutory violation, alleging affirmative- ly that about 5 August it granted journeymen, electri- cians, and working foremen a $1-per-hour increase and granted apprentices increases in varying amounts up to $1; and that the allegation of the complaint respecting the alleged threat of closure by Lorenz on 6 March was time-barred by Section 10(b) of the Act. 1 All dates hereinafter mentioned are in 1985 except as otherwise stated. 282 NLRB No. 57 A/Z ELECTRIC 357 The complaint was amended twice at the hearing. One amendment, to include allegations that around mid-June 1985, the Respondent, acting through Edward Shortoff, created an impression among its employees that their ac- tivities were under surveillance and threatened to termi- nate employees because they, were engaging in union ac- tivities, was withdrawn at a later stage of the hearing. The other amendment alleged that on 29 July the Re- spondent, acting through Lorenz, created an impression among its employees that their union activities were under surveillance by the Respondent and interrogated an employee about his union activities. Case 39-RC-632: Challenges and Objections The challenges referred for hearing were by the Board agent to ballots cast by Richard Elliott, Keith Stoll, and Kevin Lassonde, on the ground that their names did not appear on the Employer's eligibility list, and by the Union, to a 'ballot cast by Terrence Lanier, on the ground that he was only a casual employee (subsequently withdrawn), and to the ballots of Robert Wallrich, Thomas Casey, Harry Schroeder Jr., Meade Schott, and Harry Schroeder III, on the ground that they were not licensed electricians or registered apprentices. All the objections were withdrawn at the hearing except Employer's Objection 3: that during the election, unit employees sat in the Employer's parking lot, drink- ing beer and talking to other unit employees as they en- tered and as they left the polling area, and that the Union arranged to have a truck belonging to an employ- ee who was killed on the job parked in front of the voting area. The parties were afforded full opportunity to be heard; to call, examine, and cross-examine witnesses; and to in- troduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel and the Respond- ent. On the entire record,2 including my observation of the demeanor of the witnesses, and after consideration of the briefs submitted on 'behalf of the respective parties, I make the following FINDINGS OF FACT 1. JURISDICTION There is no issue concerning jurisdiction, the Respond- ent having admitted in its answer that at all material times herein it was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that during the 12-month period ending 30 No- vember 1985 it received goods and materials valued in 2 On 18 April 1986, pursuant to procedure agreed on at the hearing, the General Counsel moved for admission into evidence, as G.C. Exhs. 8 through 12 inclusive, of copies of pages of the Norwich Bulletin printed in the months of June and July 1985 and of pages of the New London Day printed in the months of June, July , and August 1985, which contained all the want ads for journeymen electricians and apprentice electricians printed in the "Help wanted" sections of those newspapers during said months through 4 August. There being no opposition to the motion and the proffered exhibits appearing to meet the requirements of Rules 902(6), 10D1(4), and 1003 of the Federal Rules of Evidence, the motion is grant- ed and the same are admitted into evidence and constitute a part of the record of these proceedings. excess of $50,000 at its facility at Ledyard, Connecticut, from points outside Connecticut. The Respondent also admitted, and I accordingly find, that the Union is and has been at all times pertinent herein a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES5 A. The Discharge of Lassonde and Stoll , Kevin Lassonde and Keith Stoll are alleged to have been discharged by the Respondent because they had, on 23 July, "concertedly complained to Respondent regard- ing the wages, hours and working conditions of Re- spondent's employees" and because the 'Respondent had the further object of discouraging employees "from en- gaging in such activities or other concerted activities for the purpose of collective bargaining and other mutual aid or protection." Respondent is an electrical contractor, incorporated in Connecticut, wholly owned by Edward Lorenz, presi- dent, and Thomas Mahoney, vice president. Lorenz' wife is the corporation's secretary and Edward Shortoff is the Company's electrical engineer. For the past 13 years, the Company has worked continuously on jobs for the Pfizer Chemical ,Company. At the-time of the occurrence of the events in issue in this case, the Company was working on a job that involved rewiring starters and interlinking them with Pfizer's computer system, so that the motors for different pumps and machinery could be monitored and controlled by the computer system. On Tuesday, 23 July, one of Respondent's journeymen on the job, Robert King, suffered a fatal accident. Re- spondent's other electricians on the job heard the news first from Pfizer employees. Shortoff and Robert Buck, Respondent's foreman, told them that King had been taken to a hospital but, because they themselves were misinformed, identified the wrong hospital. Seven of the electricians (Coleman, Foye, Gonzales, laccone, Las- sonde, Olsen, and Stoll) decided to go to the hospital. Buck apparently believing that King had only been in- jured, tried to dissuade them from leaving the job, but they left anyway. They went to one hospital only to learn that King had been taken to another hospital and that he had died. None of them returned to the job at Pfizer for the rest of'the week. On the evening of, the accident, many of Respondent's personnel visited King's home to express their condo- lences. Lassonde and ' Stoll came over to Lorenz twice and on each occasion Lassonde told him that they would not return to the Pfizer Chemical job unless Buck, the foreman, was removed from it. The testimony is in conflict regarding Lorenz' immedi- ate response. Lassonde and Stoll both testified that he appeared surprised at their attitude toward Buck, thanked them for advising him that there was a problem, 8 The matters narrated in this decision without evidentiary comment are those facts found by me on the basis of admissions in the answer, data contained in the exhibits, stipulations between or concessions by counsel, undisputed or uncontradicted testimony, and, in instances where conflicts in the testimony did not warrant discussion, the testimony that I have credited. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and promised to look into it. Lorenz testified that he simply told them that the time and place were inappro- priate for such a discussion and suggested that they come into the office to talk about it. I credit Lorenz' testimony in this regard. It is plausible and consistent with testimo- ny that Buck was highly regarded by Lorenz, Mahoney, and some of their prime customers , including Pfizer; that the first thing Lorenz told the men at a meeting the fol- lowing Monday morning was that he would not fire Buck; and that Lorenz, Mahoney, and Shortoff spent a large percentage of their time visiting the jobsites, which indicates to me that they did not need to rely on Las- sonde for information as to what went on there. Coleman, Olsen, Gonzales, Lassonde; and Stoll visited the jobsite on Thursday, 25 July, hoping to find out pre- cisely how the accident had occurred. However, insur- ance and governmental inspectors were there, and Ma- honey directed the men to leave. He spoke to them in the parking lot, but did not say anything to them about returning to work. On Friday morning, 26 July, Lassonde and Stoll came into the office for their paychecks. Mahoney saw Stoll, and Stoll repeated that they would not return to work on the job so long as Buck continued to act as foreman there. Mahoney told him to come in for a meeting on Monday morning and to notify Lassonde and the others who had absented themselves from work to come in for the meeting. On Monday morning, 29 July, a meeting was held. Lorenz, Mahoney, and Shortoff met initially with the seven men as a group. According to Stoll, they were asked whether they wished to have a common meeting or private conferences, and the men elected to discuss matters with management as a group. The discussion centered about the accident, the burden of the comments being to the effect that the Pfizer people were responsi- ble for the accident. Nobody mentioned Buck. Lorenz and Mahoney then called the men into Lorenz' office in- dividually for private conferences." Lorenz and Shortoff 4 The general credibility of Lorenz, Mahoney, and Shortoff was im- paired by the assorted reasons that they furnished for meeting with the men on 29 July and for having private meetings with them . Thus, one version was that it was felt necessary to meet with the men in order to let them talk things out of their system and hear any suggestions they might have. Mahoney, however, testified that he wanted to warn the men, before they returned to the site , not to make accusations against the Pfizer personnel and to leave matters in the hands of the proper investi- gating authorities. Regarding the manner in which a general meeting became converted to private meetings , it is to be noted that according to Respondent's witnesses, they began it as an open meeting but switched to private conferences because the general meeting was getting nowhere, the men simply making accusations against Pfizer, while Stoll testified that the men were offered their choice and elected to meet with Lorenz, Mahoney, and Shortoff as a group. The explanations offered by Shortoff, Mahoney, and Lorenz were mutually contradictory: it was felt that in private conferences it would be easier to get the men to talk about any problem they had on the jobsites; a private conference was needed with Olsen to assure him that he would be paid for the 3 days he spent assist- ing Janice King at Lorenz' request, which for some unstated reason they did not want to say in front of the other men; and they did not want to embarrass Lassonde and Stoll by firing them in front of the other men. I find it hard to believe that communication with Olsen was that difficult for Lorenz and Mahoney or that their sensitivity toward Lassonde and Stoll was so acute. participated in all the private conferences . After the first four conferences, however, Lassonde and Stoll were called in together. As soon as they entered the office, Lorenz told them that they were "being terminated be- cause of their refusal to go back to work under Buck. They became very upset, pleaded that they faced dire economic hardship as a result of the termination, and asked for their jobs back . Lorenz told them that that was not possible because their replacements had already been hired, but the discharge notices, which originally stated that 'they were being terminated for refusal to work under a foreman, were modified to read that they were laid off for lack of work. I agree with the assertion of Respondent's counsel, in the posthearing brief, that the possibility that another employer might have shown more leniency to Lassonde and Stoll does not render Respondent's actions unlawful. However, the failure to display any leniency or flexibil- ity whatsoever, considered together with the assertedly urgent need for journeymen, necessitates careful scrutiny of the testimony of Mahoney and Lorenz. The result of a close look is the revelation- of the numerous incongruities between Respondent's action and the circumstantial con- text in which it occurred, especially their "need to retain all of their personnel, and of the numerous contradictions in the testimony. First, however, I should note that the activity of Las- sonde and Stoll, which Respondent cites as the reason for their discharge, constituted concerted protected ac- tivity. The extent to which Lassonde and Stoll spoke for the other electricians is not established, and the fact that other men remained away from work does not permit an inference that Lassonde and Stoll represented their views. The absence from work of Gonzales and Olsen was with tacit or express approval of Respondent. Olsen was asked by Lorenz to take the rest of the week off to assist King's widow. Gonzales, who had witnessed the accident and administered first aid to King, was recover- ing from his own resultant emotional trauma and Lorenz offered to transfer him to another job. The precise reason for the absence of the others was not established. In the discussion that took place in the open portion of the meeting on the morning of 29 July, Buck's name never came up. But Lassonde and Stoll did act in concert with each other, agreeing on a position and supporting each other. In unison, they tried to and purported to act for the other electricians, and there is no question but that their actions and statements were coordinated. Lorenz testified that he thought they were acting together; that is why he fired them together. Respondent concedes that employees' protest of the manner in which supervision is exercised and even man- agement's choice of supervisors is protected concerted activity, citing Leslie Metal Arts Co., 208 NLRB 323, 326 (1974), but argues that Buck was not a supervisor and that the activity did not relate to matters having a direct impact on the employees' job interests, citing Phase, Inc., 263 NLRB 1168, 1170 (1982), and Quality CA. TV, 278 NLRB 1282 (1986). The General Counsel concedes, in A/Z ELECTRIC 359 her posthearing brief, that Buck was not a supervisor, but argues that by virtue of Buck's duties as a foreman he had a direct impact on Respondent's employees' job interests and their ability to perform and that the com- plaint they made to Lorenz was "about Buck's handling of King's fatal accident." I agree with the General Coun- sel. The evidence is substantial that Buck's activities had an impact on the performance of their work duties; he was a working foreman and performed numerous func- tions that interacted with the work of the men. Leslie Metal Arts concerned itself primarily with the "quality of supervision and the manner in which it is exercised." The reference was to "the banding together of employ- ees to protest the way in which supervision is exercised." The walkout was an effort to communicate with Lorenz and Mahoney. The administrative law judge in Leslie Metal Arts noted that it is not unusual for an unor- ganized group of employees acting jointly without a des- ignated bargaining representative to articulate the cause of the walkout differently, but that "implicit in the action of all the employees who left was an appeal to manage- ment to do something." (208 NLRB at 326.) In the present case there is no real question of the propriety of the means employed by Lassonde and Stoll to communi- cate with Respondent. Withholding of work is a well- recognized "permissible form of protest" that is distin- guishable from merely ignoring rules and directives "in direct defiance of the direction and warnings of manage- ment." Bird Engineering, 270 NLRB 1415 (1984). With respect to the cases cited by Respondent, I find Keyway inapposite and Quality C.A.T.Y. to be supportive of the General Counsel's position. The complaint made by Lassonde and Stoll related to what they alleged to be the personal insensitivity of Buck, as they perceived it, in trying to keep the men on the job after King was known to have been injured and taken to a hospital. This con- duct was similar to that of the two linemen in Quality C.A. T. V.., who refused to obey an order to return to work after a downpour because the lines were wet; it was held that "Protest over this employment condition was protected whether Boyle and Reners acted because they were concerned about their safety, their personal comfort, or their supervisor's attitude" (278 NLRB at 1282). The Board drew attention to NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), in which it was held that the reasonableness of workers ' decisions to engage in concerted activity is irrelevant; concerted activity to increase creature comforts or decrease discomfort falls within the scope of Section 7 of the Act. In Dreis & Krump Mfg., 221 NLRB 309 (1975), enfd. 544 F.2d 320 (7th Cir. 1976), it was held that an employ- ee's complaint was not required to be either wise or mer- itorious. It is sufficient for two employees to be acting together to effect "concert." Fair Mercantile Co., 271 NLRB 1159, 1162 (1985), enfd. mem. 767 F.2d 930 (8th Cir. 1985). I note, however, that though the reasonableness of the complaint underlying concerted protected activity is not a criterion of whether activity is concerted and protect- ed, in the present case it is apparent that the fact that the work force was in a state of emotional disarray was ap- parent to Lorenz, and he anticipated that some account had to be taken of it. Among the indications that he rec- ognized this were the arrangements he made with Olsen, his discussion with Gonzales about going to a different jobsite, and the testimony of Mahoney that one of the purposes of the meeting called for the morning of 29 July was to have a talk with the men before they went back to work at the Pfizer jobsite. The facts in Keyway, in which it was held that the General Counsel had failed to meet her burden of estab- lishing that a walkout was concerted protected activity, were not comparable to the facts of this case. A walkout had resulted in that case because a project director had been discharged, but the record was barren of evidence that the identity and capability of the supervisor in- volved had any direct impact on the employees' own job interests. In the instant case, it was precisely the asserted effect of the attitude of the supervisor in question on the morale of the employees that caused the walkout. Las- sonde and Stoll complained that morale was low as a result of the way Buck handled the men. Employee com- plaints about a supervisors' treatment of them constitute concerted protected activity. Noland Co., 269 NLRB 1082, 1088 (1984), citing Calvin D. Johnson Nursing Home, 261 NLRB 289 fn. 2 (1982). However, there is abundant evidence that tends to show that there were additional and more important rea- sons for their discharge. Stoll testified that before he was interviewed for his job he had tried unsuccessfully to get into the Union, and that Lorenz had told him to apply to A/Z when he was sure that he was not going to get into the Union and was sure he wanted to remain with Respondent. He was interviewed by Lorenz on 7 June. Stoll's account of this interview contained numerous specific details that en- hanced its credibility. In the main, he testified that Lorenz brought up Stoll's efforts, a year before, to orga- nize another nonunion contractor, NECO Electric, by helping Local 90, IBEW, to lure its journeymen electri- cians away to another contractor. About 20 journeymen, including Stoll himself, left the NECO job on the basis of a promise by the business representative of Local 90, IBEW, that they would be put to work on a more lucra- tive job and would achieve membership in the Union. They got the work, but not the membership, and that was the aspect of the matter that Lorenz questioned Stoll about. Stoll testified that Lorenz made a number of an- tiunion statements, starting off the interview with a state- ment, "I know your background, and if you're here to organize my shop and get a union in here, I'm going to close the doors." Only after Lorenz extracted a promise from Stoll not to try to organize A/Z Electric did he get down to a discussion of the job, the pay, and the bene- fits. Kevin Lassonde was one of the journeymen who aban- doned NECO as a result of Stoll's efforts. He later ob- tained a second job through the hiring hall of Local 90, IBEW. He had worked for Respondent once before and called Respondent when he was laid off from the second union job. He testified that Lorenz made remarks to him in his job interview similar to the remarks attributed to Lorenz by Stoll. The interview took place in March, 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Mahoney present. Lorenz stressed the point that if he hired him back, he did not want him running off to a job obtained through the Union: He said if I hire you back, Kevin, I don't want you to leave and go-if the union calls you back. I don't want you to go running off to them. I don't want to hire you back and then have you leave in a couple of months. Lassonde promised to remain with Respondent. He quoted an additional portion of the conversation: Q. What if anything did he say? Do you recall anything else that was said? A. Oh, yeah. After he got that out he said if you are here to organize my shop, I'll close my doors. Though some prodding was needed to elicit the critical statement just quoted, nothing in the witness' demeanor or the rest of his testimony impels me to discredit his tes- timony that such a statement was made by Lorenz. The union backgrounds of Stoll and Lassonde were thus well known to Respondent's principals. Mahoney and Lorenz testified that nothing about unions was dis- cussed in the employment interviews, but 'I do not credit the denial. Credible evidence of similar remarks made during the private conferences on 29 July shows that such discussions were well within the bounds of proba- bility. Over all, the testimony of Lassonde and Stoll ap- pears credible to me. Lorenz, of course, did not deny knowledge of the union backgrounds of these two men. The General Counsel also introduced evidence that Respondent believed that union organizational attempts were underway at the time Lassonde and Stoll were fired. The scantiness of evidence respecting the actual in- volvement of Lassonde and Stoll in union activity is of no importance, inasmuch as the Act was violated if Lorenz and Mahoney acted in the belief that they were involved in activities protected by the the Act. Lorenz at first testified that he became aware of union activity on 6 August, when Mahoney showed him a copy of the charge in these proceedings filed by Las- sonde and that later in August he became aware that the Union had filed a petition. Then he conceded that as early as the week of King's accident (the week of 22 July) he had heard that cards were being distributed, but he did not know by whom. He was uncertain how or by whom he had been alerted to it, but he was sure that he heard about it within a week's time after King's death ("it was all around ... that the cards were being signed"). Later, when attention in the hearing was focused on the pay raise of 5 August, Lorenz denied knowledge of union activity prior to 29 July and professed to be unable to fix the date until he became aware of it in relation to King's death. He then claimed that he had no knowledge of it until after the wage increase was granted on 5 August, finding out about it when Mahoney told him that another contractor (Crompton) had telephoned to inquire whether A/Z Electric was really going union. However, Mahoney himself fixed the time of that tele- phone call as during the week of 22 July. Mahoney testified that Jim Crompton, an electrical 'contractor, called him during the week in which King's accident occurred: He said well I had a guy stop in here that said you guys are going to go union ... He said some- thing to the effect if-he said I didn't think you guys were going crazy down there. Mahoney was extremely vague, if not evasive, about when he communicated this intelligence to Lorenz. He testified that he interpreted Crompton's statement that he might come down to read the riot act to them in a rather peculiar way: "I gathered from what he was saying that he was going to tell me some negative things about being a union contractor. That is the way I took it." He pro- fessed not to have been furnished any details by Cromp- ton. I found his professed naivety about the phone call altogether incredible. Significant evidence of Respondent's knowledge of union activity at that time is provided by the testimony of two employees that Lorenz interrogated them about it during the private conferences on 29 July. Interrogation of this nature is evidence of an employer's knowledge or suspicion of union activity. Flowers Baking Co., 240 NLRB 870 (1979), enfd. mem. 620 F.2d 298 (5th Cir. 1980). The testimony is especially significant and credible because it came from employees who were not in trouble on account of their absence from work the preceding week. David J. Gonzales, who remained away from work with Lorenz' tacit consent because he had under- gone the emotional trauma of witnessing King's accident, testified that Lorenz asked him if anyone had ap- proached him,to sign cards or whether he had heard anything about the Union. When he responded in the negative, Lorenz commented that everyone else seemed to have been approached. Daniel L. Olsen, who was given the rest of the week off by Lorenz to assist Janice King, the widow, testified that during his private conference on 29 July Lorenz said that he had heard from somebody at Pfizer "that there was talk of A/Z, going union." Olsen responded that he had not heard anything. Lorenz then remarked "that A/Z had somewhat of an understanding with its custom- ers that it was going to operate a non-union shop just due to the fact that that was how it was going to be run.,, Additional corroboration is to be found in the testimo- ny of Lance S. Schors, hired as one of the replacements for Lassonde and Stoll on 26 July. The threat of closure made to him during the interview, described below, dem- onstrates Lorenz' and Mahoney's concern about union activity at'L that point in time. It also lends support to Lassonde's and. Stoll's testimony that they were similarly interrogated during their employment' interviews. The General Counsel also introduced evidence tending to show disparity of treatment of Lassonde and Stoll as compared with the others who had remained away from work. Of course, a showing of disparity of treatment must be based on identical conduct on the part of the employees who are claimed to have been treated differ- ently, and in this case there is some basis for differentia- A/Z ELECTRIC Lion. Of the seven , men who remained, away from' work in the 3 days following 23 July , only Lassonde and Stoll repeatedly asserted that, they would remain away from work so long as Buck remained foreman on the Pfizer Chemical job. Respondent's official reason for the dis- charges is their refusal to work under a foreman. The disparity, however, exists because until the private conferences were held on the morning of 29 July, there was no way of knowing whether the men would contin- ue to remain off the job as a group. The situation that existed was that a group of men refused to return to work at a jobsite. Lassonde and Stoll were members of that group. The other members of the group were given the option of returning to work or being fired. Thus, Coleman testified that almost the entire meeting he had with Lorenz, Mahoney, and Shortoff was taken up 'with his being given the option to quit or return to work. Las- sonde and Stoll were not given that option and were not even given separate conferences. Such conferences presented an opportunity for Lorenz and Mahoney to probe the nature of the complaint against Buck, which Mahoney professed to want. He tes- tified that he and some of Respondent's prime customers, including Pfizer, had a high regard for Buck. He thought Lassonde was also competent. He testified that "we cer- tainly would have been interested in those objections." Nevertheless, though confronted with a situation in which one ,competent electrician had had a fatal accident and another competent electrician was refusing to return to the jobsite unless a highly regarded foreman was changed, Mahoney made no inquiry of either Lassonde or Stoll when they were right in front of him, made no investigation of any kind into the complaint, and did not even ask Lorenz if Lorenz had looked into it . In fact, therefore, it appears that Lorenz and Mahoney had not the slightest interest "in those objections" I find this all the more astonishing in view of the uniqueness of the situation. Mahoney was sure that there had been some prior occasion when an electrician had been fired, but he was unable to remember the last time it had happened or name anyone who had ever been fired or cite a single instance that had occurred in the 2 years prior to the hearing. In any event, there had been no prior instance of a competent electrician refusing to work under 's competent foreman. In spite of this, Lorenz and Mahoney were completely inflexible. Mahoney was at an utter loss to explain Re- spondent's inflexibility in the matter in the face of evi- dence that, all things being equal, it was to Respondent's advantage to reconsider when Lassonde and Stoll both said they were willing to work unconditionally. He as- serted, "The decision was final." He pointed to the fact that the replacements for them (DiMauro and Schors) had been hired on Friday afternoon , 26 July. This was at a time when, according to his own testimony, the short- age of journeymen was acute, they were worried about men being stolen away by the competition, and they be- lieved they were likely to be the successful bidder on a large project at Dow Chemical. However, Mahoney concedes that the possibility of keeping the men on with a warning was not even considered. When I asked Ma- honey why, in view of the critical need to retain person- 361 nel; which had compelled them to advertise and which ultimately compelled them to grant a pay increase, they did not warn Lassonde and Stoll and keep them on, I elicited this altogether unsatisfactory response: We felt that-I'm going to use the word, we felt an ultimatum had, been given and that sufficient time had passed that they had taken no action to come in as Mr. Lorenz had requested they do and talk about it further, discuss it, say what was on their mind. Such an explanation is unpersuasive in the face of the failure , of Lorenz and Mahoney to avail themselves of the opportunity to question Lassonde and Stoll in the meeting on the morning of 29 July, under circumstances in which the need for such an inquiry would seem to have been pressing. Even on so simple a matter as the time when the deci- sion to fire Lassonde and Stoll was supposedly made, their testimony is inconsistent and wavers between inco- herence and some kind of assertion that they thought Lassonde and Stoll were quitting. According to Lorenz and Mahoney, the firing was a process that took place on Friday, 26 July, and Monday, 29 July. It is not clear from their testimony precisely when a firm decision crystallized . On Friday morning, Stoll and Lassonde came in for their paychecks, appar- ently at different times. Stoll told , Mahoney that they would not go back to work so long as Buck was still running that job. Mahoney told Stoll to come into the shop' on Monday morning and to pass the word along to others as well. At lunchtime he told Lorenz of his con- versation with Stoll . He testified: At that point we both agreed that we would dis- charge them and hire replacements because we needed them for the workload . We needed people down there. It wasn't going to be easy for us to lose someone at that point, quite honestly. At the same time, Mahoney professed to have believed that Lassonde and Stoll intended to quit: I, quite honestly, Monday morning did not expect to see the two individuals come in the door. We had many many instances in the past where people have just not shown up to work; there's been no of- ficial termination after a week or two with a guy not coming in, you say I guess he's not coming back and we've never given him a layoff slip. I thought that that was , what was going to happen. Lorenz, however, testified that the decision on Friday was only tentative, a preliminary decision. Lorenz testi- fied: Q. What kind of decision was made on Friday with respect to the discharge of these two individ- uals? 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. When-Friday, my partner, Tom, had told me when Keith had came in to pick up his pay check, that he-he said he would not be back to work, him and Kevin would not be back to work unless Bob Buck was discharged. Q. All right. When you obtained that informa- tion, what did you do? A. Then we were making decisions to let-well, I didn't-I didn't believe they'd be back. Q. All right. You didn't believe they'd be- A. I didn't really believe they were coming back to work, so the final decision was made Monday morning when we seen them, yes, they are here; yes, we are going to let them go, but I never ex- pected to see them because this is what I was told by them, that they would not be back. When asked by the General Counsel what reason he gave Lassonde and Stoll for firing them on Monday, Lorenz testified: I told them they were being discharged because of refusal to come back to work for the company unless Mr. Buck was-was discharged, and also that we had hired two replacements' for them. Shortoff testified, "We told them we were laying them off, for refusing to work for a foreman." Lorenz and Mahoney thus presented a highly uncon- vincing description of a decision-making process in which a clear cause for discharge was felt to exist but matters were left hanging on the supposition that Las- sonde and Stoll would never show up again for work, though both of them were actively protesting the pres- ence of Buck on the job. This'kind of inherently implau- sible story inevitably prompted the further question about why, if Mahoney and Lorenz were surprised to see Lassonde and Stoll on Monday morning, and Lassonde and Stoll sat through a general meeting and then waited to be called in for individual meetings in Lorenz' office, it did not occur to Mahoney and Lorenz that they had not quit after all. Mahoney's response was uninformative, merely repeating that the decision to terminate them had been made and the thought of reconsidering did not enter their heads. In fact, even after hiring DiMauro and Schors on Friday, 26 July, as replacements for Lassonde and Stoll, Respondent could have kept the latter two men on, for two electricians were hired on Monday, 29 July, the same day Lassonde and Stoll were fired. As Mahoney indicated, the, refusal to keep them on de- spite their manifest change of heart, which in a way amounted to a request to be given the same options granted to the others, came at a time when Respondent could ill afford to lose any of its journeymen. The Gen- eral Counsel has established that fact' very clearly through the testimony' of both Lorenz and Mahoney. Lorenz testified that as of the first of August the work- load was heavy and Respondent had more than the aver- age number of electricians working, possibly as many as 32. Even when one of the seven pending jobs at Pfizer was completed he only laid off seven electricians. At the end of August there were still 26 journeymen working and 6 jobs continuing at Pfizer alone. Shortoff testified that besides'the jobs running at Pfizer, they had to meet a strict Labor Day deadline at Electric Boat in Groton, Connecticut, and that there was work in progress at Dow Chemical. - Mahoney testified that during this period, late July and early August, the workload was heavy and there were short-term contracts and one big job pending at Pfizer. Overtime was needed at Pfizer's citric automation project because of special scheduling resulting' from a 3- week general shutdown at Pfizer scheduled to begin 1 September. They left a dozen men on that job during August. Respondent's workload started to get heavy be- cause of new contracts secured in May, and continued to increase through June and into early, July. Respondent increased its hiring throughout June and July, taking on 18 or 19 journeymen. Even though several employees left during this period, the total complement increased. Over and above this, Lorenz, Mahoney, and Shortoff, throughout July, operated on the assumption that they would soon need many more journeymen because they anticipated getting a big' job. Throughout the summer they had worked on a bid for Dow Chemical's latex ex- pansion project, receiving the bid package in June and submitting their bid on 22 July. Mahoney and Lorenz testified that'they had heard rumors from several sources to the effect that Respondent might be the successful bidder. Shortoff testified that he heard it from three sep- arate sources and told Lorenz what he had heard. In late July, Lorenz and Mahoney believed that Respondent was the front runner. Throughout this' period, and before, Respondent had been running a continuous ad for journeymen in the local press. The competition was also advertising. In fact, both Schors and DiMauro, who were hired as the replacements for Lassonde and Stoll, had responded to ads. Lorenz later testified that some people were let go in August, that the Dow Chemical rumors were not nearly as strong anymore, that a job at Electric Boat was ending, and that the job with the Labor Day deadline was'drawing to a close. However, that was. late in August; at the time with which we are concerned, late July, they felt a desperate need for jour- neymen. Mahoney testified that he was anxious to avoid losing men and that it was important that they keep every man because of their critical commitment throughout August to finish one job by 1 September, maintain the normal workload, and be prepared if the Dow Chemical bid was successful. He routinely looked at the newspaper ads to see what the competition was doing about attracting journeymen. The word "on the street" was that. NECO was paying, $14 an hour, which was -higher than Re- spondent's rate, and Westco, another nonunion contrac- tor, had once before succeeded in luring away two of Respondent's employees. The need to keep their men was so critical during this period, according to Lorenz and Mahoney, that on 4 August they decided to give the men a pay raise effec- tive as of 5 August. A/Z ELECTRIC 363 Mahoney's testimony was characterized by tension- laden statements such as, Well, naturally we knew the past history of about a year earlier where someone was paying higher wages and we lost a couple of guys before-I use the term put our finger in the hole in the dike-so I was particularly looking not to see that happen again. His justification for the increase granted on 5 August was as follows: That heavy workload mandated that we make a major effort to keep every employee that we had working. If we lost a couple, normally we would start working some overtime to compensate for that. We were already working overtime. We knew that we had this extremely critical commitment through- out August to get done by the first of September and added into the rest of our workload, that cre- ated the business picture in our mind that we had to keep every man that we had that we could keep. Whether the conduct of Lassonde and Stoll merited discharge in the opinion of Lorenz and Mahoney, the re- fusal of Lorenz and Mahoney to change their minds when Lassonde and Stoll changed theirs is, in the light of the general situation as they themselves described it in their testimony, suggestive of deeper reasons for their ac- tions than they gave. Their explanation for - the dis- charges depicts an implausible scenario that requires me to believe that they discharged competent, electricians ,who wanted to return to work on their terms, in a time of acute personnel shortage, without warning and with- out the option extended to other absentee electricians to return or be fired. The Respondent has presented very little to counter- balance the evidence that Respondent knew of Las- sonde's and Stoll's background of union adherence and support; that it knew or suspected that union organiza- tional activity was taking place before they were fired; that Respondent's principals were strongly committed to the maintenance of a nonunion shop; that the discharges took place at a time when Respondent could ill afford the loss of any of its journeymen electricians; and that the discharges were in marked contrast with the option afforded other absentees to return to work, though both Lassonde and Stoll recanted and asked to be permitted to return to work. This showing leads me to conclude that Respondent discharged Lassonde and Stoll chiefly in order to dis- courage union activity among the employees and in order to remove two known union adherents, in viola- tion of Section 8(a)(3) and (1) of the Act. My conclusion in this regard does not, of course, de- tract from the prima facie case made by the General Counsel, especially since Lorenz and Mahoney them- selves sought to excuse their conduct on the very ground that Lassonde and Stoll had refused to work under Fore- man Buck, disputing only that their refusal constituted protected concerted activity. I have found that it was protected activity. Absent the testimony of Lorenz and Mahoney, the evidence convinces me that the union ac- tivity of Lassonde and Stoll is what prompted Respond- ent's discharge of Lassonde and that had it not been for that, Lorenz and Mahoney would have allowed them to go back to work. However, the concession by Lorenz and Mahoney of the basic facts alleged by the General Counsel compels me to find that the concerted protected activity in which Lassonde and Stoll engaged was an ad- ditional reason for their discharge. All the facts and circumstances of the discharges and the reasons for the discharges were fully litigated. Ac- cordingly, although the complaint is limited to an allega- tion that the discharges were in violation of Section 8(a)(1), I find, that the,Respondent, by reason of the cir- cumstances disclosed by the evidence, is also in violation of Section 8(a)(3) of the Act. B. The August 5 Pay Raise The General Counsel contends that Respondent violat- ed Section 8(a)(1) and (3) of the Act by announcing and implementing a $1-per-hour wage increase for all its em- ployees because it was motivated by reports that indicat- ed that union organizational activity was being carried on. Respondent thus contends that the decision to grant a pay raise on 5 August was a lawful measure taken to retain its work force in a peak business period, citing Schulte's IGA Foodliner, 241 NLRB 855 (1979), and Poul- try Packers, 237 NLRB 250 (1978). However, in Poultry Packers, the employer proved that it granted 'the increase in order to halt a slide in the quality of the employees' work, while Respondent in the present case announced to the employees that they were being given a pay in- crease as a reward for the high quality of their work. In the Schulte's case, the employer proved the existence of a well-established policy of periodic pay increases and pro- vided detailed information about the pay scales of its competitors, while Lorenz and Mahoney were, only able to point to 1 year, 1984, as a precedent and had to admit that on that occasion not everyone had received an in- crease as they had at first claimed. They utterly failed to back up their contentions about the wages paid by their competitors and instead admitted that they had no reli- able information on the subject. In the present case, Lorenz and Mahoney got wind of the union activity in the week of 23 July and were busily interrogating employees about it on the morning of 29 July. By sometime prior to 5 August, Lorenz, knew A/Z employees were signing union cards, admitting that he heard about it about the time King died. Immediately thereafter they instituted the increase- See Litton Indus- trial Products, 221 NLRB 700, 701 (1975). 'The infirmities in Respondent's defense to this charge are twofold. In the first place, even if I credited Respondent's justi- fication for the increase as a measure to keep journeymen from leaving its employ to work for its competitors, Re- spondent has still failed to justify the timing of the in- crease. See NLRB v. Pandel-Bradford, Inc., 520 F.2d 275, 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 280 (1st Cir. 1975), enfg. 214 NLRB 736 (1974), holding that even if business reasons warrant an increase, the timing may be a violation of the Act, and that granting benefits' during the pendency of a representation election is prima facie case of intentional interference with Sec- tion 7 rights. Such action is thus presumptively for the illegal object of improperly influencing the employees. NLRB v. Exchange Parts, Co., 375 U.S. 405 (1964); Wm. T Burnett & Co., 273 NLRB 1084 (1984). The same rationale applies here. Respondent granted the increase before the Union filed its petition but well after it knew or suspected that the Union was attempting to organize its shop. Its action was manifestly in response to the union campaign. I cannot accept Respondent's contention . that the decision to grant the increase was made prior to knowledge of the campaign, such knowl- edge having been obtained only by service of the Union's petition, for it is conceded that information pointing to union activity was received during the week of King's death (the week of 22 July) and it is conceded that the decision to grant the increase was thereafter made on Sunday afternoon, 4 August. See Montgomery Ward & Co., 220 NLRB 373, 374 (1975), modified and enfd. 554 F.2d 996 (10th Cir. 1977). The presumption of illegality of an increase granted during a campaign is reinforced when a period of lethar- gy is followed by decisional acceleration respecting ques- tions of employee, benefits. Supermarkets General Corp., 260 NLRB 167, 169 (1982). The' Board has put, the burden on the employer: A grant or promise of benefits made during an organizational effort will be considered unlawful unless the employer can provide an explanation, other than the organizational activity, for the timing of the grant or announcement of such benefits. Thus, the Board requires that an employer show by objective evidence that it would have made the same grant or announcement of benefits had the union not,been present. [Village Thrift Store, 272 NLRB 572 (1983).] Secondly, the Respondent failed to justify the increase on the basis of business exigencies. There is, of course, an irreconcilable conflict between Respondent's defense to the charge that it fired Lassonde and Stoll unlawfully and its defense to the charge that it granted an unlawful wage increase on 5 August. If Re- spondent was so harried by the personnel situation that it felt that an across-the-board wage increase was ,necessary in order to keep its journeymen, then discharging Las- sonde and Stoll for the reason relied on by Respondent in this case did not make much sense. Though that helped me considerably along my way to the conclusion that the reason offered by Respondent for discharging them was not the main reason for its action, it does not require me to credit Respondent's excuse for granting the wage increase. The credibility gap does not compel acceptance' of either position. The story given by Lorenz and Mahoney-that the in- crease was given because of the state of the labor market, heavy newspaper advertising for journeymen by competitors, the heavy workload at Pfizer Chemical, and the fact that the competition was already paying $14 per hour compared with Respondent's $13-seemingly co- herent and plausible, is in truth a patchwork of inconsist- encies and contradictions. The inconsistency between the Respondent's asserted need to retain journeymen and the failure of Lorenz and Mahoney to be flexible when Las- sonde and Stoll begged to be allowed to work is only the most obvious of the difficulties inherent in their story. Under adverse questioning by the. General Counsel, pursuant to Fed.R.Civ.P. 611(c), Lorenz contradicted himself by testifying at one point that the decision to raise the pay was arrived at the day before, on Sunday, 4 August, when he and his partner and brother-in-law, Ma- honey, pondered a rumor that they were the low bidder on the Dow Chemical job and realized that they would have to raise wages in order to keep their journeymen (a version also testified to by Mahoney); and, at another point in his testimony, that the low bid had nothing to do with it; and, at yet another point in his testimony, that it had some bearing on the decision. There was confusion about the company policy re- specting pay increases. It was asserted that a pay raise had been given in similar circumstances in 1984 to every- body, but, as I have pointed out, in the sole example cited by Respondent, the increase was shown to have been limited to foremen and some of the journeymen. Though it was claimed to have been for the purpose of keeping journeymen from defecting to better-paying competitors, not all the journeymen got the raises. More- over, the supposed impetus for the action at that time, the defection of a journeyman, proved not to have been the case, for it was an apprentice who went over to the competition, and no apprentices were given raises at that time. Even if the story held up, and an across-the-board in- crease had been given in 1984 to journeymen, the fact re- mains that not every journeyman got it in 1985. Re- spondent's failure to adhere to its professed wage policy would therefore still bring the existence of any such policy into serious question. See Montgomery Ward & Co., supra. The circumstances under which Lance S. Schors was hired and review of the newspaper advertisements that were run for journeymen during the period in question altogether demolish Respondent's asserted justification for the increase. Schors was hired at $12 per hour after stiff negotiations,, with .an agreement to raise him to the $13 per hour being paid to the journeymen already working for Respondent. At that time, the competition was supposedly paying $14 per hour and advertising for journeymen. Lorenz and Mahoney therefore do not seem to have been at all worried about covering their commit- ments when Schors applied on 26 July. Moreover, Schors' acceptance- of the arrangement suggests that the market conditions were not as claimed by Respondent. At the time of the hearing, when Lorenz and Ma- honey testified with respect to the supposedly frenetic advertising for journeymen in the help-wanted sections of the two local newspapers, copies were not available. A/Z ELECTRIC They are now in evidence, 5 and it is'obvious that, they could not have been a factor in the decision to grant a pay increase. In fact, they strongly rebut the contention that Lorenz and Mahoney thought that a pay raise was needed to keep the work force intact and attract new men for the Dow Chemical job on which Respondent had bid. Two newspapers were involved, the Norwich Bulletin and the New London Day. A tabulation of the newspaper ads run during the months of June and July is as follows: Week of No. of Ads Ads by A/Z Ads by NECO June 1 ...........:....... 4 0 0 June 2-8 ............... 38 5 1 June 9-15 ............. 29 9 5 June 16-22 ........... 22 8 2 June 23-29 ........... 16 3 0 June 30-July 6 ..... 19 0 0 July 7-13 .............. 20 0 0 July 14-20............ 15 0 2 July 21-27............ 29 0 1 July 28 Aug. 3 .... 12 0 1 The foregoing tabulation simply lists advertisements run in the help-wanted sections of the two newspapers; in many cases, ads were run simultaneously in both papers by the same advertiser, and frequently an adver- tiser ran the same ad for several days . Approximately four advertisers seem to have been involved in placing all the ads. However, because it shows the briskness or lack of briskness in advertising over the entire period, the tabulation gives a good indication of the intensity of the demand for journeymen at various points in time. It is very obvious that demand had slackened throughout the month of July and, in fact, had passed its peak and declined precipitously after the middle of June. 6 It is noteworthy that the upsurge in demand in 1 ' week in July was during the week that Lassonde and Stoll were fired, and the lowest point of the summer was reached in ' the ,week preceding the 5 August pay raise. Accordingly, I find that the pay raise annonuced on 5 August violated Section 8(a)(1) and (3) of the Act. 5 The parties were granted leave to submit, for incorporation in the record after the conclusion of the hearing, copies of pertinent advertise- ments that were run in the local newspapers in June , July, and August. There being no opposition , the General Counsel's motion to admit photo- copies of the help-wanted section of two newspapers as G.C . Exhs. 8 through 12, inclusive, as all the advertisements run in the period is grant- ed and the same are made part of the record herein. 6 The General Counsel's summary of the ads has not been controvert- ed by the Respondent and is to the following effect : Respondent appears to have been the heaviest advertiser m the Norwich Bulletin in June and July, but there appear to have been more ads from all the companies in the field in June than in July, and the amount of advertising diminished as the month of July wore on. NECO, the competitor Respondent claims to have been most concerned about, ran six ads in June and only two in July, neither of which was at the end of the month . In July, Respondent was the heaviest advertiser in the New London Day, NECO placed only one ad that month, on 27 July. Most of the advertising in that newspaper was placed in the first 2 weeks of June. There were no ads at all for elec- tncians on the first 2 days of August. C. Threats to Close the Business 365 It was alleged and proven that on 6 March, 21 June, and 26 July, Lorenz made threats to employees to the effect that Respondent would close the business if a union became the employees' collective-bargaining repre- sentative. Such threats were made to Lassonde on 6 March, and to Stoll on 21 June, in the course of their job interviews with Lorenz, and demonstrated Lorenz' union animus as well as his knowledge of, and concern with, their history of past union activity. The threats of closure on 26 July were made during the course of Lorenz' interviews of Lance S. Schors and Vincent DiMauro, who were being hired as the replace- ments for Lassonde and Stoll . It stands to reason that Lorenz and Mahoney did not intend to repeat their expe- rience with Lassonde and Stoll. Schors testified that his interview took half an hour, but before Lorenz said any- thing about the job or reviewed his qualifications 'he mentioned Schors' record of employment with union contractors "and he wanted to make ' it perfectly clear that no one was going to unionize his shop and that if they did attmept that, he would close his doors." Di- Mauro testified that Lorenz commented on the fact that the Union could offer better benefits and higher wages than Respondent could afford, and that if DiMauro had the opportunity to get into the Union he should go, but that if DiMauro was there to organize the Union he would shut the doors. Lorenz' statements on all four of these occasions were in violation of Section 8(a)(1) of the Act. The Respond- ent contends that the allegation of a threat of closure on 6 March is time-barred under Section 10(b) of the Act. The charge filed by Lassonde on 1 August alleged viola- tion of Section 8(a)(1) and (3) of the Act by reason of the discharge of Lassonde and Stoll on 29 July. The charge was amended to include an allegation that an un- lawful wage increase had been granted on 5 August. The charge relating to the incident on 6 March became part of the case when Lassonde filed a second amended charge on 26 November, alleging the discharges, the pay raise, and threats of closure on ,6 March, 21 June, and 26 July. The amendment of the charge to include the 6 March violation is permissible. It is closely related to the mat- ters previously charged, which are within the permissible statutory period, and is of such'a nature as not to change the substantive nature of the charge. It does not give rise to a new and separate cause of action unrelated to the unfair labor practice ' originally alleged. NLRB v. Os- brink, 218 F.2d 341, 345-347 (9th Cir. 1954). D. Interrogation and Creation of Impression of Surveillance Gonzales testified that in his private session with man- agement on 29 July, Lorenz asked him if he had been ap- proached to sign a card for the Union. Gonzales denied having been approached and' said he had not heard any- thing about the Union. According to Gonzales, Lorenz then "said everyone else seems to have been approached, how come they haven't approached you?" 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Olsen testified that during his conference on that morning Lorenz brought up the fact that he had heard from someone at, Pfizer Chemical that there was talk of A/Z Electric "going union." He then explained to Olsen that an understanding existed between Respondent and its customers that Respondent would operate as a non- union shop "and that was how it was going to be run." Lorenz' statements to both employees meet the criteria under which an employer is deemed to have created an impression of surveillance. They tended to imply that Lorenz and Mahoney had engaged in a process of sur- veillance. Schrementi Bros., 179 NLRB 853 (1969); South Shore Hospital, 229 NLRB 363 (1977). Moreover, they conveyed a positive impression that Lorenz had actual knowledge of the activities going on. See Maxwell's Plum, 256 NLRB 211 (1981); Clements Wire & Co., 257 NLRB 206 (1981). Lorenz was not citing rumors or statements of a vague and general nature. See South Shore Hospital, supra; Palby Lingerie, Inc., 252 NLRB 176 (1980). He specifically told Gonzales that he was the only person who seemed not to have been approached; attributions of uniqueness in that regard are not the kind of thing normally based on rumor or conjecture. Lorenz' assertion of knowledge of the disparity between Gon- zales' account and what he asserted to be the experience of all the other employees connotes actual knowledge ac- quired by observation of the other employees. Gonzales had to have concluded that surveillance was being con- ducted. In Olsen's case, Lorenz said flatly that he had a source of information, and so Olsen could have come to no other conclusion. In the face of such evidence, I do not accept Respondent's argument that evidence is lack- ing that surveillance, was the only means by which Re- spondent could have obtained such information (citing G. C. Murphy Co., 217 NLRB 34 (1975)). Lorenz' inquiry to Gonzales whether he had been ap- proached to sign a' lord for the Union was made in a conference in Lorenz' office, with all top management present, and was made in the course of a conversation that definitely conveyed the impression that employees' activities were under surveillance. It was, accordingly, precisely the type of coercive interrogation that is out- lawed by Section 8(a)(1) of the Act. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). III. THE REPRESENTATION CASE A. Company Objection The Employer contends that parking King's truck in front of the voting area "was highly prejudicial to the Company, and it was deliberately designed to influence" the voters; that it was a tactic designed to create "strong emotional reactions" from the voting employees just before they voted; and was an effort to "place the Com- pany in a negative light."7 However, no evidence was introduced in support of any of these contentions. Some time had passed. King died on 23 July; the election was held on 8 October. There is no evidence that King's truck was recognizable 7 Postheanng brief submitted on behalf of Respondent-Employer. by any of the voting employees; that strong emotional reactions were likely to be or were aroused by sight of the truck in the parking lot; or, for that matter, that any reminder of King's death would in fact place the Compa- ny in a "negative light" as claimed by the Company, ,a proposition that cannot be taken for granted in view of the uncontroverted evidence that in the open meeting on 29 July the journeymen's criticisms were leveled exclu- sively against Pfizer Chemical and its employees. There is no evidence that the truck was parked in front of the voting area as part of a deliberate design to influence the voting. The fact that Olsen was acting as a poll watcher for the Union does not render the Union re- sponsible for the way he parked the truck, or for the fact that he used it, assuming that constituted misconduct. There is no evidence that any specific instructions were given to him by the Union. Tennessee Plastics, 215 NLRB 315, 319 (1974), enfd. 525 F.2d 670 (6th Cir. 1975). See also Firestone Tire & Rubber Co., 235 NLRB 548 (1978). Olsen presented a credible reason for using King's truck. He testified, credibly, that his wife normally drives him to work, but because he was acting as a union observer on 8 October, he had to travel back and forth between the worksite and the company office, where the election was being held, in the middle of the afternoon. He therefore borrowed King's truck from Janice King. He parked where everyone else was parking. The truck was parked midway between the front and rear entrances of the building, a distance of 75 feet from each door by his estimate. The Company relies on the testimony of Robert Faille, a supervisor employed by Ledyard General Contractors (another corporation owned by Lorenz and Mahoney). He was asked at 3 o'clock on 8 October to walk around the grounds to make sure people did not wander around the buildings. According to his testimony, the parking lot was really a road coming into the property, on which most cars park diagonally, but he saw "one truck that was parked right on the driveway." It was "right oppo- site the window" and 30 feet away from it. He placed the truck at 40 feet from the entrances to the building. It was there the whole time the voting was in progress. He recognized it as a Datsun pickup truck that belonged to Rick King, whom he had known very well. He also ob- served that a Budweiser baseball cap, like the one King had customarily worn, was hanging over the rearview mirror. The truck had not been on the premises since King's death. Olsen conceded that he parked parallel to the building close to the window at the voting area, and that the truck was there throughout the time the voting was being conducted. Olsen said that a blanket covered the window that Faille referred to and he denied having parked in a driveway, pointing out that the parking lot is a big dirt lot without designated parking spaces. The credibility of Olsen's testimony and the absence of evidentiary support for the Employer's objection lead me to reject it insofar as the use and parking of the truck are concerned. There is equally lacking any case with respect to the persons gathered in the parking lot while the voting was A/Z ELECTRIC in progress. Nothing in Faille's testimony regarding,liis encounter with them remotely suggests, that there was any link between their conduct and the Union. Accord- ing to Faille, a woman and about a dozen men , including Lassonde, were waiting around for the results of the election. They apparently were imbibing beer. Faille asked them to leave, but when he returned to the park- ing lot about the time the voting was concluded they were still there. One of the men spoke to him disrespect- fully. There is no evidence that these persons were loitering about the premises at the request of the Union or that their presence in the parking Ilot in any way affected or influenced any voter. In fact, Faille's testimony was that all the voters had gone in by the time he first asked them to leave, so he could not have observed the effect of their presence on any of the voters. Furthermore, he tes- tified that they stayed a good 50 feet away from the en- trances to the building and did not approach the en- trances. To the extent that one loiterer exhibited any bel- ligerence and spoke to him disrespectfully, it is to be noted that Faille refused to identify himself when some- one else asked who he was. (Lassonde knew him, but there is no evidence that he identified him to the others.) Apparently, Vincent DiMauro was the one who asked him who he was and Lance S. Schors was the one who spoke to him disrespectfully. Thus, not only, is the record barren of evidence that the Union directed or instigated the conduct of Olsen or the loiterers, but there is no evidence that there existed an atmosphere of fear of reprisal, confusion, violence, or threats of violence, such as would preclude or impair the employees' uncoerced expression of choice concerning bargaining, representation to such an extent that the elec- tion ought to be set aside. See Swingline Co.,, 256 NLRB 704, 717 (198,1); Al Long, inc., 173 NLRB 447, 448 (1968); Steak House Meat Co., 206 NLRB 28' (1973); Westwood Horizons Hotel, 270 NLRB 802 (1984). Neither of these allegations is proven and the objec- tion is accordingly dismissed. B. The Challenged Ballots The election was held pursuant to a Stipulation for Certification Upon. Consent Election executed by the Employer and the Union around 10 September. It pro- vided for the holding of an election at the Employer's premises at Ledyard, Connecticut, on 8 October from 3:30 to 5 p.m., among those who were employees as of 7 September, in an appropriate collective-bargaining unit described as follows: All full-time and regular part-time electricians and working foremen licensed in the State of Connecti- cut, and electrical apprentices registered in the State of Connecticut; but excluding all office clerical em- ployees, and guards, professional employees and su- pervisors, as defined in the Act. 367 1: Terrence Lanier The Union withdrew its challenge to Lanier's ballot at the hearing, and it will accordingly be directed' to be in- cluded in the tally. 2. Kevin Lassonde and Keith Stoll Lassonde and Stoll were not included in the Employ- er's list of eligible employees -because they,had been dis- charged on 29 July. Inasmuch as their discharges were unlawful and I recommend, in this decision, that they be offered reinstatement with backpay, the challenges to their ballots are overruled, and their ballots are directed to be included in the final tally. 3. Richard Elliott The Board agent challenged the ballot of Richard El- liott on the ground that his name was not included in the list of employees furnished by the Employer. The Union offered no evidence with respect to this employee. How- ever, when the Employer moved to sustain the Board agent's challenge to Elliott's ballot, counsel for the Union argued that the evidence showed only that during the time Elliott worked for the Company he never en- tered an apprenticeship program. That is not entirely ac- curate, for Mahoney testified that Elliott's answer to questions put to him when he was hired for the first time in 1981 and at later time (he worked for Respondent three times) indicated that Elliott had not been registered in any apprenticeship program either by the Respondent or by another employer, at any time during the periods when he was in or out of employment with them. Al- though,the testimony is silent about what happened in between periods of employment, Elliott appears never to have had a temporary apprentice registration card, was not carried on the Employer's list of apprentices main- tained for purposes of state inspection, was not included in the Employer's calculation of ,the ratio between jour- neymen and apprentices, and was not a journeyman. On the basis of the evidence in the record, I find that he was not an apprentice either. Accordingly, the Board agent's challenge to Elliott's ballot is sustained., 4. Casey, Schott, Schroeder Jr., Schroeder III, and Wallrich a. The basis of the challenges The Union challenged the ballots of Thomas Casey, Meade C. Schott, Harry L. Schroeder Jr., Harry L. Schroeder III, and Robert Wallrich on the basis that they are not, as required by the Stipulation for Certifica- tion on Consent Election, "electricians . . . licensed in the State of Connecticut" or "electrical apprentices reg- istered in the State of Connecticut." The Employer con- tends that as of the eligibility, date, all five of these per- sons had the status of registered 'apprentices. They unquestionably lacked status as licensed electri- cians as of the eligibility date, inasmuch as two of them took and, passed the licensing examination on 5 October and three of them took and passed it on 7 December. Testimony from a Connecticut official, established that 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such status begins on the date an electrician takes and passes the examination though wallet-sized identification cards are issued that uniformly date the 2-year license period from 1 October. The stipulation is clear and unambiguous insofar as it defines a bargaining unit that embraces electricians and working foremen and electrical apprentices who have met the licensing and registration requirements of the State of Connecticut. What-those requirements are may be easily determined by recourse to the administrative and legal defmitions of those terms as applied by the Connecticut licensing authorities. b. Connecticut licensing and registration laws and regulations Connecticut statutes provide that no person may per- form the work of an electrician unless he has obtained a license or possesses a registration card from the State Apprentice Training Division and is subject to its regula- tions. The Department of Consumer Protection is re- quired to hold four examinations each year. The license applicant must satisfy the statutory examining board of his competency, his moral character, and his educational level. Any person completing the required apprentice training program for a journeymen's license must apply for a licensing examination within 30 days following such completion. An applicant can repeat the examina- tion if necessary, within prescribed limitations. With re- spect to the apprentice permit, it is provided: Any apprentice permit issued . . . to an applicant who fails three licensure examinations in any one- year period shall, remain in effect if such applicant applies for and takes the first licensure examination given by the department of consumer protection following the one-year period from the date of his third and last unsuccessful licensure examination. Otherwise, such permit shall be revoked as of the date of the first examination given . . . following expiration of such one-year period. The statutory definition of "apprentice" is: [A]nyone indentured to the Connecticut state ap- prentice training division of the labor department or registered with the appropriate state examining board for the purpose of learning a skilled trade. Work training standards for apprenticeship and train- ing programs issued by the Connecticut Commissioner of Labor define 'an "apprentice" as a person employed with a sponsor receiving skill training under ' a written agreement which pro- vides specific terms of apprenticeship and employ- ment including but'not limited to wage progression; specific hours of job training processes; hours and courses of school instruction which satisfactory completion thereof provides recognition as a quali- fied professional, technical, craft or trade worker. A "journeyperson" is defined as: any person who has completed an apprenticeship or is recognized/classified as a skilled person .and pos- sesses a valid journeyperson card of occupational li- cense when required. The apprentice agreement must provide for at least 2000 hours of work experience and for a number of hours of related or supplemental instruction either as pre- scribed by, the ;Connecticut State Apprenticeship Council or as prescribed by Federal requirements for on-the-job training schedules. Such related instruction must be in an organized and systematic form. Another pertinent defini- tion sets forth that "Registration of an apprentice" means the accept- ance and recording of a duly executed apprentice- ship agreement by the Commissioner as evidence of participation in a particular bona fide registered ap- prenticeship program as required for state or federal purposes. The manner in which the statutes and regulations work in practice was described by Joseph Gracey, a pro- gram manager in the apprentice training division of the State Labor Department. Gracey's division is the regis- tering agency for apprentices. The actual licensing of journeymen is under the jurisdiction of the Connecticut Department of Consumer Protection, Division of Regis- tration for Occupational Licensing, which publishes reg- isters listing the names and license numbers of persons li- censed by it. Gracey testified: The employer, if he's interested, signs a set of ap- prenticeship training standards, develops a wage progression schedule and assists in the development of a training outline for the occupation that's in- volved, and then enters into an apprentice agree- ment, with a particular apprentice and we're the third party to that agreement in that the Deputy Labor Commissioner, who is, the Executive Secre- tary of the Apprenticeship Council, signs that ap- prentice agreement, thereby creating a registered apprentice. According to Gracey, Connecticut law recognizes no kind of apprentice other than the registered apprentice; the issuance of temporary apprentice identification cards does not confer upon the holders thereof the status of registered apprentice; a person becomes a registered ap- prentice only by compliance with and completion of the prescribed procedures and then not until the apprentice- ship agreement that he signed with the employer is ap- proved and signed by the Deputy Commissioner of Labor; temporary cards are issued, but these are only for the purpose of enabling a person to work until a perma- nent identification card is issued, which is done only after the agreement has been signed by the Deputy Com- missioner. Gracey also testified that electrical contractors are re- quired to maintain an on-the-job ratio of one journeyman for each apprentice and field representatives from Gra- cey's office conduct regular inspections to ensure compli- A/Z ELECTRIC 369 ance. His office records identify all apprentices registered in Connecticut. c. The position of Connecticut officials respecting apprenticeship status of the challenged voters Gracey, the Connecticut official directly involved in the registration of apprentices, whose office maintains data respecting their identity and work locations and conducts compliance inspections, testified that, as of 7 September, Casey, Schott, Schroeder Jr., Schroeder III, and Wallrich were not registered apprentices in Con- necticut. Another Connecticut official took a similar po- sition. Mahoney testified that on 27 August, Robert Bell, the assistant director of the occupational licensing divi- sion of the Department, of Consumer Protection; advised him by telephone that as of that date three men-Casey, Schott, and Schroeder Jr.-were, not registered appren- tices. The interpretation of the Connecticut laws and regula- tions by the officials charged with executing them is de- serving of consideration, especially when, as in this case, their, interpretation is consistent with any literal reading of the applicable statutes and departmental regulations. The Employer did not procure the testimony of any other public official, and so the interpretation to which Gracey testified is uncontroverted. The Employer at- tempted unsuccessfully to impugn Gracey's credibility, d. The Employer's contentions Notwithstanding its concession in the posthearing brief submitted on its behalf that the stipulation for certifica- tion is clear and unambiguous, the Employer contends that the ballots of Casey, Schott, Schroeder Jr., Schroe- der III and Wallrich are entitled to be counted because they were "temporary apprentices" or "completed ap- prentices." The stipulation mentions no such classes of apprentices. No Connecticut law or administrative regu- lation mentions or defines any such class. It is well set- tled that an unambiguous Stipulation for Certification Upon Consent Election is binding regardless of any pri- vate reservations a party may have. The reason for the generally strict adherence to the stipulations is apparent: it reflects the parties' own determination' or definition of the unit. An ambiguous stipulation will be permitted to be clarified only' because it does not determine the eligi- bility of employees to vote when their right, to do so is disputed. See NLRB v. Sonoma Vineyards,, 727 F.2d 860 (9th Cir, 1984). This is not a case in which any ambiguity exists, there being no genuine and reasonable disagreement between the parties. See Mohawk Valley Oil, 210 NLRB 1060 ('1974) ("permanent" in a stipulation entitling "permanent employees" to vote). In the ;present case, 'the Employer has professed to have great and previously undisclosed uncertainty about the meaning of terms used in the stipu- lation, which are defined in Connecticut law and statuto- ry regulation, though reference is made in the stipulation to Connecticut law. No such uncertainty exists on the part of the Union. The stipulation can only be read as referring to persons licensed or registered in conformity with Connecticut statutory and administrative require- ments as explained in Gracey's uncontroverted testimo- ny. (I rejected the Employer's attempt to prove that Las- sonde made statements to Mahoney regarding the per- sons whom he approached to sign union cards, as part of its attempt to prove who was includable in the unit. That occurred before the stipulation was signed and, in any event, would show only the persons whom Lassonde ap- proached and would not be probative of the Union's un- derstanding of the stipulation subsequently entered into.) The purely fictional nature of the "completed appren- tice" is illustrated,by the case of Schroeder III, who had completed his apprenticeship time and therefore was de- fined by Mahoney as a "completed apprentice in the process of applying for his journeyman's license." (Ma- honey did not discuss "completed apprentices" who did not apply.) At the same time, because "completed ap- prentices" received temporary white cards renewable for 6-month extensions, which looked like regular white ap- prenticeship identification cards, he contended that the holders were really "apprentices." On that basis, he changed his testimony and opined that Schroeder III was an "apprentice" and not just a "completed apprentice." In his testimony, therefore, Mahoney gave Schroeder III status variously as an ",apprentice," a "completed appren- tice," and a "completed apprentice in the process of ap- plying for his journeyman's license." He conceded that this was his own opinion and not necessarily in accord with that of Connecticut officials. The untenability of the Employer's position is illustrat- ed by the situation of Harry L. Schroeder Jr. Mahoney testified, on cross-examination, that in July 1985 this em- ployee, claimed to be an apprentice, was the foreman at the Dow Chemical job. That meant, however, that he was supervising a journeyman 'working on that job, Edward McClintock. At that time, Schroeder had been with A/Z for about 10 years and was still unlicensed. Mahoney did not contend that he had been an apprentice all that time. Instead, he testified that Schroeder Jr. became an, apprentice on 28 August by virtue of the ar- rangement made after issuance of a citation by the Con- necticut authorities. Gracey's testimony makes it clear that he was not a registered apprentice 'because the Deputy Commissioner of Labor never signed the agree- ment. Mahoney admitted that he did not identify Schroe- der to Dow Chemical as an apprentice. Mahoney finally gave up and testified: He was an electrician. He did not have a journey. man's license. He was not registered as an appren- tice.- He had a lot of extensive background and ex- perience [of which] Dow was aware. In the face of this kind of testimony, the Employer's counsel ultimately came to rely on two arguments, one of which is wholly inapplicable as a matter of law, and the other of which simply ignores the realities of the par- ties' situation as of August. The first-mentioned argument is that an anomalous result will be produced if these five employees are ex- cluded from voting, because they have a community of interest with the persons who are concededly within the unit. Such an argument mischaracterizes the issue in this 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case. The community-of-interest doctrine is pertinent when the Board must make its own determination of an appropriate bargaining unit. It has no applicability when the parties have already done so, as they did in the stipu- lation in this case. White Cloud Products, 214 NLRB 516, 517 (1974). In its reliance on temporary apprentice identification cards issued to Casey, Schott, and Schroeder Jr. in order to establish their supposed apprenticeship status, counsel for the Employer simply ignored the fact that the cards were issued as a`makeshift device in order to enable the men to continue working and in order to enable the Em- ployer to proceed with its job without interruption. These men, who were neither apprentices nor journey- men, were discovered working on a job by a Connecti- cut inspector, who issued a citation to the Employer on 26 August. Mahoney worked out an arrangement with Gracey's office whereby apprenticeship agreements cov- ering them were drawn up and entered into so they could be carried as apprentices . The agreements were signed by Lorenz, on behalf of the Employer, and by Lawrence Swayze, a field representative from the Nor- wich office who reported to Gracey. On the basis of these agreements, cards entitled "Temporary Apprentice Identification" were issued to Casey, Schott, and Schroe- der Jr. on 28 August, effective until 28 November. This untidy arrangement was designed to enable them to work, but Mahoney, having cynically evaded the re- quirements of Connecticut law, now contends that the three men thereby became apprentices, though conced- edly not "registered apprentices." He had to make that concession, for Gracey testified that.-the agreements were filed away and were never signed by the Deputy Com- missioner, and so they never became registered appren- tices. Gracey was very clear that, though the ID cards issued to Schroeder Jr., Schott, and Casey were based on apprenticeship agreements showing 7000 of the 8000 mandatory hours of on-the-job work experience complet- ed, this was done because if all 8000 hours were shown they could not have been permitted to execute such agreements. They had extensive work experience and, in Gracey's words, were "beyond apprenticeship." The sole purpose of the cards was to enable them to work while they were in the process of applying for and being ac- cepted for their license examinations . But that did not give them status as apprentices, according to Gracey. Only a permanent ID would reflect such status. The Oc- cupational Licensing Board honors the temporary card so that the individual can work until the permanent ID is issued. In fact, Larry Swayze, of the Norwich office, in August, explained to Mahoney that the men were not registered apprentices, but were being given the cards as a humanistic measure to enable them to make a living. Their lack of status was indicated by the fact that though an employer must carry one licensed E-2 journeyman for each apprentice on the payroll, the, Employer was not expected to do so with respect to these men. As Gracey put it,: "These people were in a gray area, a very gray area." In the supervision of A/Z Electric, they were not counted as apprentices. He explained: We- did not know what they were and so, therefore, we would not have enforced a situation which said they must have journeymen to cover them. The as- sumption was they were journeymen by virtue of the time they had served and were in the process of trying to get that license and we were doing this so that they could continue to work. He also commented: We issue them as a special measure by agreement to keep the licensing inspectors off their backs until such time as they obtained a license. Gracey's testimony was in line with the reasonable and ordinary construction of the language of the, statutes and regulations that govern apprenticeship status in the State of Connecticut. I find the "Temporary Apprentice Regis- tration" cards, issued to enable men to work who are in the "gray area" between apprentice and journeyman status, are not intended to and do not confer either status on the holders of such cards. Asserting that such status exists simply because of lan- guage on certificates issued by the State of Connecticut for' a particular limited purpose, under circumstances to which they were never intended to apply, can only be misleading. This was as true for Robert L. Wallrich and Harry Schroeder III as it was for Casey, Schott, and Schroeder Jr. In their cases, there appears to have been recognition at some points that in the absence of a valid apprenticeship contract they were not apprentices, and that apprenticeship status did not survive expiration of the contract. For example, Harry L. Schroeder III en- tered into an apprenticeship contract on 19 January 1981. He left after a year. When he returned, the fact that his apprenticeship status no _ longer existed was recognized when Mahoney and an agent from the Connecticut ap- prenticeship program had a discussion, agreed on the number of hours to be credited to him, and entered into anew apprenticeship agreement. He left again and went to work for another employer with whom he entered into yet another apprenticeship contract and who subse- quently certified his completion of the required 8000 hours on the job. He returned to, A/Z Electric late in 1984, left again in February 1985, and returned in June 1985. He was interviewed by Mahoney and Lorenz and was asked about his program, and he ,advised them that he had completed all requirements and was applying to take the licensing examination . Mahoney's reference to him in his testimony ' as a "completed apprentice" is the clearest possible admission of his uncertainty regarding this employee's status, and his contention that he was put on a jobsite as an apprentice and carried, on a one-to-one ratio is belied by Gracey's testimony and by the fact that the ratio was violated in September and, by Mahoney's own admission, at other points in time, as employees came and went and the number of journeymen, and ap- prentices fluctuated. Lorenz' and Mahoney's lack of credibility in this regard makes it impossible to believe that, under all ,the circumstances, they thought that they were dealing with apprentices. Mahoney conceded that in a fluid,. hiring pattern Respondent was frequently out A/Z ELECTRIC 371 of ratio. In fact, that was the very situation in September 1985. Mahoney identified the journeymen and those he claimed to be apprentices whose names appeared on the voting eligibility list that the Employer had prepared. There were 9 journeymen (Robert Buck, Jeffrey Cole- man, William Combies, James, Cyr (an E-1), John Dia- mond Jr., Paul Fenton, Terrence Lanier, Edward McClintock, and Gary Sicard) and 12 persons whom he identified as apprentices (Thomas Casey, LeRoy Gay Jr., David Gonzales, Don Herwerth, Carlton Johnson Jr., Kevin McGlaufflin, David Olsen, Meade Schott Jr., Carl Schroeder, Harry L. Schroeder Jr., Harry L. Schroeder III, and Robert Wallrich). Robert Wallrich was notified by the Connecticut agency that work and educational requirements were completed as of 25 April 1983. He failed to pass exami- nations in June 1984 and March 1985. He reapplied on 9 October 1985 and passed the examination on 7 December 1985. He was carried by A/2: as a "completed appren- tice" and Mahoney testified that he showed lists to Gracey on which Wallrich appeared in that manner. Yet, Respondent itself introduced into evidence a certificate dated 19 March 1984 issued by the Apprenticeship Coun- cil of the Labor Department that set forth that Wallrich had satisfactorily served the required apprenticeship of 8000 hours at the trade of electrician "and is therefore entitled to be recognized as a. Journeyman in this trade on February 26, 1983." The ' Employer also introduced into evidence a "Certificate of Completion" of appren- ticeship by Wallrich, dated 15 November 1983. In addi- tion, the Employer introduced into evidence documents issued by the Department of Consumer Protection, Board for Occupational Licensing, certifying that Wall- rich, Schroeder Jr.,,Schott, and Casey were licensed or registered as "Electrical Unlimited Journeyman-E2" ef- fective I October 1985, The purpose was, to prove that if, as of that date they were journeymen, then as of 7 September they must have been apprentices. It would seem self-evident that an apprentice who completes all the requirements of an apprenticeship train- ing program ceases to be an apprentice. Gracey so testi- fied. If he takes the journeymen's examination and passes, he becomes a journeyman. If he for some reason does not take the examination, or if he takes the examina- tion and fails to pass, he does not become a journeyman, but he does not revert to His status as an apprentice, either. That ended when he completed the apprentice- ship, or so I would think. As ii happened, Gracey had an acceptable explanation for the certificates issued to Wall- rich. The records in his office disclosed that Wallrich had been registered as an apprentice and had completed the requisite number of on-the-job training hours but had not completed the related educational requirements. The certificate that had been issued to him certified only that the on-the-job hours requirement had been met. The Connecticut Department of Education certifies comple- tion of the related educational requirements, and the completion of apprenticeship training is certified by the issuance of two certificates covering the two branches of apprenticeship training, one from each agency of the State of Connecticut. As no apprenticeship agreement was in force on either 7 September or 8 October, he was not registered as an apprentice on either of those dates. The fact that Wallrich subsequently applied for and took the licensing examination did not make him, during the interim period, a "completed apprentice" until he became a journeyman. There is no such recognized status. Gracey testified that the status as a registered ap- prentice of a person who is enrolled in an apprenticeship program and has completed his apprenticeship ends when the sponsoring employer notifies the division that the employee has satisfactorily completed the program and the division checks and ascertains that there has been a positive completion. The vocational technical school system is also contacted to ascertain that related educational requirements have been fulfilled, and if ap- propriate, a license examination application is then sent to the-applicant. It is clear that none of these five voters can be quali- fied as apprentices by reason of the existence of docu- ments that seem to leave them standing as apprentices or, as in Wallrich's case, as a journeyman, without actual bona fide compliance with the requirements of Connecti- cut law. The documents merely reflect the administrative adjustments made by the concerned Connecticut agen- cies in . order to meet the daily exigencies of contractors' business while apprenticeship training and licensing pro- cedures are being carried on. The perfect example is the practice of uniform dating of the licensing periods on the identification cards, which does not at all affect the date when a person actually becomes a licensed electrical journeyman in Connecticut. Robert Bell, the assistant director of the occupational licensing division of the Department of Consumer Pro- tection testified that the date an applicant becomes a li- censed electrician is the day he passes the examination. Robert L. Wallrich, and Harry L. Schroeder Jr. passed the examination on 7 December and became licensed electricians as of that date. Thomas M. Casey and Meade C. Schott passed the examination on 5 October 1985 and became licensed electricians as of that date. However, for purposes of administrative convenience, relating to li- cense renewal, all licenses are effective for 2-year peri- ods, commencing 1 October. Consequently, the licenses of Wallrich, Casey, Schott, and. Schroeder' Jr. all bore the same effective date, but in fact 'they became licensed electricians on various dates, none of which were the stipulated eligibility dates. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by (a) Discriminatorily discharging Kevin Lassonde and Keith Stoll on 29 July 1985 because of their support of the Union and because they engaged in concerted pro- tected activity by protesting working conditions. (b) By increasing wages in order to induce employees to reject the Union. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Respondent violated Section 8(a)(1) of the Act by (a) Coercively interrogating an employee concerning his union and other protected activities; (b) Creating the impression that it has the union activi- ties of employees under surveillance. (c) Threatening employees that it would close its busi- ness if they selected a union as their bargaining repre- sentative. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce , within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged two employees, it must offer them reinstatement and make them whole for any loss of earnings and other ben- efits, computed on a quarterly basis from date of dis- charge to date of proper offer of reinstatement, less, any net interim 'earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289,(1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). See Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I =issue ,the following recommend- eds ORDER The Respondent, A/Z Electric, Inc., Ledyard, Con- necticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or 'otherwise discriminating against any employee for supporting International Brotherhood of Electrical Workers, Local 35, AFL-CIO or any other Union or for engaging in other protected concerted ac- tivities by way, of protesting working conditions. (b) Coercively interrogating any employee about union support or union activities. (c) Granting increased wages in order to induce em- ployees to reject the Union. - (d) Creating the impression that it has the union activi- ties of employees under surveillance. (e) Threatening employees with closure of the business if they select any union as their collective bargaining representative. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the .Act. (a) Offer Kevin Lassonde and Keith Stoll immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, 8 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount, of backpay due under the terms of this Order. , (d) Post at its facility in Ledyard, Connecticut, copies of the attached notice marked "Appendix." 6 Copies of the notice, on forms provided by the officer in charge for Subregion 39, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the officer in charge in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the Employer's Objection 3 is overruled. IT IS FURTHER RECOMMENDED that Case 39-RC-632 be `remanded to the officer in charge to open and count the ballots of Terrence Lanier, Kevin Lassonde, and Keith Stoll, and to issue a revised tally of ballots and a certification of representation if International Brother- hood of Electrical Workers, Local 35, AFL-CIO has re- ceived a majority of the votes cast. 9 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 Nation- al Labor Relations' Board" shall read "Posted Pursuant to a Judgment of the United States, Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice A/Z ELECTRIC To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. Accordingly, we give you these assurances WE WILL NOT discharge or otherwise discriminate against any of you for supporting International Brother- hood of Electrical Workers, Local 35, AFL-CIO or any other Union or for engaging in protected concerted ac- tivities by way of protesting .working conditions. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT grant wage increases in order to induce you to reject the Union. WE WILL NOT create the impression that we have your union activities under surveillance. 373 WE WILL NOT threaten to close down our business if you select a union as your collective-bargaining repre- sentative. 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 Kevin Lassonde and Keith Stoll imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of earnings and other ben- efits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we ,have removed from our files any references to his discharge and that the discharge will not be used against him in any way. A/Z ELECTRIC, INC.