A Cough Drop, a Short Paycheck, and Two Unlawful Layoffs

A West Virginia electrical contractor just got hit with an 8(a)(3) violation for laying off two union electricians nine days before asking the union to refer ten more.

Here’s what happened. Michael Bishop got sent home from a construction project because a supervisor thought the cough drop in his mouth meant he was sick. The following week, his coworker Robert Brumfield confronted superintendent Jason Dillard — who had just returned from COVID — about why Dillard got to stay while Bishop got sent home. The next day, Bishop discovered his paycheck was two hours short of the show-up pay he was owed under the CBA. He raised the issue. Brumfield backed him up. The day after that, Dillard notified the union that Bishop and Brumfield — and only Bishop and Brumfield — were being laid off.

Dillard’s explanation: cost-cutting directive from the general contractor. The Board didn’t buy it. No documentation. No corroborating testimony. The general contractor’s project manager wasn’t called as a witness. And critically, Brumfield was one of four employees hired the same day from the same referral group — the other three kept their jobs.

Nine days after the layoff, Dillard called the union asking for ten more electricians.

The remedies: reinstatement, full backpay, Thryv make-whole for direct and foreseeable pecuniary harms, adverse tax consequence compensation, and notice posting.

The employer’s constitutional arguments — removal protections, Seventh Amendment, separation of powers — were raised for the first time on exceptions and deemed waived.

The lesson hasn’t changed: pretextual cost-cutting rationales don’t survive a Wright Line analysis when the timing tells a different story.