A. N. Electric Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 887 (N.L.R.B. 1985)

A, N ELECTRIC CORP. . 887
A. N. Electric Corp . and Jose Gonzalez and Ray
Edwin Coffee and Ismael DeJesus . Cases 2-
CA-19011, 2-CA-19227, 2-CA-19387, and-2-
CA-19429
30 September 1985
DECISION'AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 25 August 1983 Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent filed exceptions and a supporting
brief
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 brief and his
decided to affirm the judge's rulings ,. findings,' and
conclusions as modified and to adopt the recom-
mended Order.
We agree with the judge as to the various 8(a)(1)
violations committed by the Respondent. However,
with respect to the unlawful discharges of six em-
ployees resulting from their protected concerted
activities, we rely on our review of the record and
an analysis consistent with the principles of Meyers
Industries, 268 NLRB 493 (1984), remanded sub,
i 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 Additionally, the Respondent asserts that the judge' s find-
ings are a result of bias After careful review of the record, we are satis-
fied that this allegation is without basis '
The Respondent has also excepted to the judge's refusal to defer to an
alleged settlement of the Respondent 's liabilities to discharged employees
Jose and John Gonzalez We agree with the judge' s determination for the
following reasons only There is a substantial discrepancy between the
amounts of money the two employees testified they received in settle-
ment and the money figures appearing on the written settlement agree-
.ment submitted in evidence by the Respondent, the. circumstances suggest,'
that the figures on the settlement agreement were tampered with Fur-
ther, to the extent that any meaning can be attached to the curious lan-
guage of the settlement agreement , it appears that it was intended to
settle the Respondent 's liabilities under the Davis-Bacon Act and not its
liabilities for commission of unfair labor practices It is also noteworthy
that the alleged settlement agreement did not anse within the framework
of an established grievance -arbitration procedure
Member Dennis finds that the alleged settlement fails to satisfy the
standards set forth in her dissenting opinion in Carpenters Local 46 (Arntz
Contracting), 274 NLRB 1105 (1985)
The Respondent has also requested oral. argument . This request is
denied as the record , the exceptions, and the brief adequately present the
issues and the positions of the parties -
In -its brief the Respondent renewed its motion made before the judge
to reopen the record for the receipt of additional evidence We agree
with the judge that the motion lacks any ment See App A of the
judge's decision and Sec 102 48 (d)(1) of-the Board's Rules and Regula-
tions
nom..Prill v. NLRB, 755 -F.2d 941 (D.C. Cir. 1985),
to arrive at this conclusion.2
The Respondent is an-..electrical subcontractor
operating at various 'construction sites in New
York City. The two sites relevant here are. located
at 139th Street in Manhattan and Mohican. Avenue
in the Bronx.
-Sometime in July 1982, Jose Gonzalez, an em-
ployee of the Respondent, was informed that the
construction ^ site where he was working, Mohican
Avenue, was being funded under a Federal con-
tract. Having worked on a "federal job" in the
past, Jose surmised that he and the other employ-
ees of the .Respondent' were entitled to higher
wages than they were in fact receiving. Jose shared
this information with his son John, also an employ-
ee, and they discussed. the possibility of a higher
rate of pay.
Jose confronted Nichola. Argano, a supervisor of
the Respondent,3 on several occasions in late July
demanding to know whether the job was federally
funded and whether they were entitled to higher
wages . Jose's son John stood a few feet away and
listened to their, conversation on each of these oc-
casions and afterward discussed Argano's responses
with Jose. Although Argano denied that the job
was "federal," he eventually offered to settle any
wage differences with Jose individually. Jose then
pressed him with regard to higher wages for John
and the other employees. When Argano became
aware that only Jose and John thus far suspected
that the job was federally funded, he promised to
"work it out" privately with the two of them. On
the, following day Argano discharged both Jose
and John.
Within a few days after the discharges, Jose and
John contacted the Department of Labor. In early
August, Vargas, a Labor Department investigator,
accompanied the two 'to the 139th Street worksite.
Vargas informed the Respondent's employees that
the 139th Street site was federally funded and that
they all were entitled to higher wages under the
Davis-Bacon Act. Vargas asked the employees' to
participate in an -investigation of the Respondent by
giving 'individual statements.
Immediately after this. visit, three employees-
Ray Edwin Coffie, Jose Robles, and Ismael DeJe-
sus-agreed among themselves to meet with
Vargas again to explore-the possibility of cooperat-
2 The cases cited by the judge in sec I (d), and (e) of his decision to
support his findings of protected concerted activities have been overruled
to the extent that they are inconsistent with Meyers Id at 496
3 In his decision the judge examined the possibility that Argano was
also an owner of the Respondent Whether or not Argano was an owner
is not relevant to the present inquiry, it is clear that he was at least a
supervisor through January 1983 ,
276 NLRB No. 92
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing with the -investigation. About a week-later,
Vargas met these three near the 139th Street site.
Following more- discussion of wage' rates and the
investigation, all three • gave ' signed statements.
Each statement included a description of the work
being done, the individual's rate of pay, -and the
names of other employees working at the-site. A
few days later, Coffie informed employee Rupert
Allen of the Labor Department investigation. Allen
went to Coffie's house where he -met Vargas.
Vargas gave him the_ same information on Davis-
Bacon wage rates that he had given to the other
employees. Allen then made a statement similar to
those filed by Coffie, Robles, and DeJesus.
Not long after these statements were filed;
Coffie, Robles,=and DeJesus were called from work
to meet with Argano. DeJesus was told that the
three would be fired because of their cooperation
with the Labor Department, and all three were
questioned as- to the nature of their participation
with the investigation. When they admitted "their
cooperation Argano promised them- a wage raise
and that he would secure union membership `for
them if they would sign "pieces of paper" retract-
ing their, Labor Department statements . The three
subsequently signed retraction statements.
Within a,few weeks Coffie, Robles, DeJesus, and
Allen, and apparently all of Respondent's employ-
ees, were told to go downI to the office of Team-
sters Local 363 to join the Union.4 As part of the
initiation process, the four employees signed elec-
trician-apprenticeship forms. One effect of their
new apprenticeship status was exemption from
Davis-Bacon wage rates. The employees were not,
informed of this: Another effect was that they were
-required to -attend classroom training sessions.
None of the four was informed that repeated ab-
sences from these training sessions would result in
termination of employment under the terms of the
collective-bargaining contract. Between September
1982 and January 1983 only Allen attended the
training sessions regularly.
The subject of the wage investigation -came up
twice in the winter of 1982. On the first occasion
Argano reacted by threatening to fire Robles but
another supervisor interceded on the employee's
behalf. On 'the second occasion Coffie was laid off
for a week following a meeting between Argano
and Government, officials. On 21 January 1983 a
meeting was scheduled between Argano and 'a
4 The General Counsel initially alleged an 8(a)(2) violation based on
this incident , but did not pursue the issue The Respondent entered into a
collective-bargatmng relationship with Local 363 in August 1982 in com-
pliance with a 1980 Board Decision and Order See Argano Electric Corp,
248 NLRB 352 (1980).
Labor Department investigator. s On that day
Coffie, Robles, and Allen were discharged with the
explanation that they had not attended the Union's
training sessions and had not paid union dues.6
Allen, who had , attended the sessions regularly,
protested, but was told there was no work for him
anyway. On 24 January DeJesus was discharged
after being told by his supervisor that.he had been
seen by Argano going to the NLRB Regional
Office with Coffie.
At the unfair labor practice hearing, the Re-
spondent rested without attempting to meet the
substantive issues . raised in ,the complaint. As a
result the testimony of the General Counsel's wit-
nesses was left unrebutted. The judge found that all
six, employees were unlawfully discharged because
of 'their protected concerted activities. He further
found that an 'additional reason for DeJesus' dis-
charge was because Argano believed that he had
accompanied Coffie to the NLRB office in order to
assist in - an unfair labor practice investigation-a
separate 8(a)(1) violation.' He also found several
other 8(a)(1) violations resulting from the Respond-
ent's threats of-discharge,' interrogations, and prom-
ises I of higher wages and union membership.
Our analysis focuses on the discharges of the six
employees. In Meyers Industries, 268 NLRB 493,
407 (1OQA\
In general , to find an employee's activity to be
"concerted," we shall require that it be en-
gaged in with or on the authority of other em-
ployees, and not solely by and on behalf of the
employee himself. Once the activity is found
to be concerted , an. 8(a)(1) violation will be
found if, in addition, the employer knew of the
concerted nature of the employee's activity,
the concerted activity was protected by the
Act, and the adverse employment action at
issue (e.g., discharge) was motivated by the
employee's protected concerted 'activity.
[Footnote citations omitted.) '
We find that under Meyers Jose Gonzalez'- -re-
quests of Argano represented concerted activity
protected by Section 7. Prior to his inquiries Jose
discussed the possibility of higher wages with his
S A day or two prior to the scheduled meeting the investigator called
Allen to warn him that his name would come up in the pending discus-
sion with Argano It is apparent that the Respondent was not aware of
Allen's participation in the wage investigation until this time
6 Coffie and Robles testified that they were never notified that failure
to pay dues would be cause for discharge
-r Member Babson finds it unnecessary to pass on the judge 's conclu-
sion that DeJesus' discharge additionally was unlawful because it was
.based on Argano's belief that DeJesus had assisted in the investigation of
the charge filed with the Board. In so doing , he notes that the complaint
did not allege such an additional violation , and that the General Counsel
did not raise this issue at the hearing
A N ELECTRIC CORP. 889
son John, a fellow employee, and it is apparent that
John became interested at that point. John then
supported Jose's confrontation with Argano by his
presence and by ' discussing Argano's responses
afterward. The fact that Jose told Argano that
John knew about the "federal job," the fact that
Argano fired both Jose and John, and the timing of
the discharges indicate that the Respondent knew
of the concertedness of the activity and was moti-
vated by that activity in discharging the two. Their
concerted conduct was aimed at attaining higher
wages and this marks it as protected under Section
7. Based on the above we adopt the judge's conclu-
sion that Jose and John Gonzalez were discharged
in violation of Section 8(a)(1): --
Employees Coffie, Robles, and DeJesus agreed
among themselves to contact -Labor Department in-
vestigator Vargas to pursue the possibility of their
cooperating in the wage investigation. Together
they met with Vargas, satisfied themselves con-
cerning the facts of the investigation, and gave
statements. Similarly, employee Allen's, subsequent
statement was the result of another meeting with
Vargas which was initiated, facilitated, and sup-
ported by Coffie. In each situation there -was con-
certed activity within the meaning of Meyers. The
activities of the four were protected by the Act
since, like the Gonzalezes, their purpose was to
secure higher wages. That the Respondent knew of
the concerted nature of the activities'and was moti-
vated ' by the activities in discharging the four is
patent from the interrogation of Coffie, Robles, and
DeJesus, the timing of the discharges and the sur-
rounding circumstances, and the pretextual nature
of the Respondent's excuse that Coffie, Robles, and
Allen had _ not attended training classes or paid
union dues. On this analysis we agree with the
judge that the Respondent violated Section 8(a)(1)
in discharging employees Coffie, Robles, DeJesus,
and Allen. -
ORDER
The National Labor Relations Board adopts the
recommended Order of -the administrative law
judge and orders that the Respondent, A. N. Elec-
tric Corp., New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in, the Order, except, that the attached
"Appendix B" is substituted for 'that of the adminis-
trative law judge. - - ' -
APPENDIX B
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 ordered 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 representa-
tives of their-own choice
To act together for other mutual aid or pro-
tection '
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or threaten to discharge,
any of our employees because they concertedly ask
for higher wages, or because they give assistance
to an investigation by the U.S. Department of
Labor regarding the proper wages and benefits to
be paid pursuant to _the Davis-Bacon Act, or be-
cause they engage in any other concerted activities
for their mutual aid or protection.
WE WILL NOT interrogate our employees regard-
ing any assistance they may -give to the U.S. De-
partment of Labor.
WE WILL NOT promise wage increases or other
benefits in order to induce them to refrain from as-
sisting an investigation by the U.S. Department of
Labor.
WE WILL NOT in any like or related manner
interfere with, restrain, or -coerce our employees in
the exercise of the rights guaranteed to them by
Section 7 of the Act. .
WE WILL offer to Jose Gonzalez, John Gonza-
lei, Ray Edwin Coffie, Jose Robles, Rupert Allen,
and Ismael DeJesus immediate and full reinstate-
ment to their former jobs, or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed.'
WE WILL make whole Jose Gonzalez, John Gon-
zalez , Edwin Coffie, Jose Robles, Rupert Allen,
and Ismael DeJesus for any loss of earnings they
,may have suffered by reason of our discrimination
against them, plus interest. .
WE WILL remove from our files any references
to the discharges of the above-named employees
and notify them in writing that this'has been done
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that evidence of the unlawful discharges will
not be used as a basis for any actions against them.
A. N. ELECTRIC CORP.
Mary Ann Mills, Esq., counsel for the General Counsel.
Richard M. Lipsman, Esq., of New York, New York, for
the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge.
These consolidated cases were heard by me in New
York, New York, on various days in February, April,
and May 1983.
The charge'in CAse 2-CA-19011 "was filed by Jose
Gonzalez on July 28, 1982, and -a -complaint based on
that charge 'was issued by the Regional. Director for
Region 2 of the National Labor Relations Board on Sep-
tember 24, 1981.1 It is noted that the complaint in 2-
CA-19011 alleges the discriminatory discharge of John
Gonzalez but fails to allege the discriminatory discharge
of Jose Gonzalez. Indeed, the Regional Director for
Region 2 had previously, on October 20, 1982, dismissed
that portion of the charge relating to Jose Gonzalez on
the grounds that he was a supervisor within the meaning
of Section 2(11) of the Act.
On - November 5, 1982, Jose Gonzalez filed a new
charge in Case 2-CA-19227. Thereafter, on January 27,
1983, the Regional Director issued a consolidated com-
plaint in Cases 2-CA-19011 and 2-CA-19227 This new
consolidated complaint alleges, inter alia , that the Re-
spondent discriminatorily-discharged John and Jose Gon-
zalez on July 22, 1982, because of their concerted com-
plaints regarding the wages and benefits that they were
receiving It also alleges-that on July 23, 1983, the Re-
spondent threatened unspecified reprisals if its employees
contacted governmental. authorities about possible viola-
tions by the Respondent of the Davis-Bacon Act.
On January 24, 1983, Ray Edwin Coffie filed a charge
in Case 2-CA-19837 and a complaint based on that
charge was issued by the Regional Director on February
3, 1983. In essense, the complaint in-that case (which was
consolidated with the other cases on February 7, 1983)
alleged:
(1) That about August 1982, the Respondent interro-
gated employees, regarding "their assistance to and par-
ticipation in the' United States Department of Labor in-
vestigation" regarding possible Davis-Bacon Act viola-
tions by the Respondent.
(2) That Respondent, in August 1982, aided and en-
couraged its employees to join Local 363 International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Local 363).
(3) That Respondent,-about November and about De-
cember 28, 1982, threatened its employees with discharge
if they contacted governmental authorities about possible
violations of the Davis-Bacon Act.
i On May 17, 1983, at the hearing, the Respondent stipulated that it
had been served, with all of the charges involved in- this proceeding
,(4) That Respondent discharged employees Coffie,
Jose Robles, and Ruppert Allen, because they contacted
and assisted a United States Department of Labor inves-
tigation. -
On February 9, 1983, Ismael DeJesus filed a charge in
Case 2-CA-19429 which resulted in a complaint issued
by the Regional Director on March 25, 1983. At the
hearing I granted the General Counsel's motion to con-
solidate this new complaint with the other previously
issued complaints. In pertinent part, this complaint al-
leges that the Respondent discharged DeJesus about Jan-
uary 24, 1983, because he too supported and assisted a
United States Department of Labor investigation' regard-
ing possible Davis-Bacon Act violations by the Respond-
ent.
Based on the entire record in this proceeding,2 includ-
ing my observation of the demeanor of the witnesses and
after considering the briefs of counsel, I make the fol-
lowing3
FINDINGS OF FACT
1. JURISDICTION
At the hearing Respondent conceded the jurisdictional
allegations set forth in the various complaints. I therefore
find that the Respondent, A. N. Electric Corp., is a New
York corporation engaged in the construction industry
performing electrical contracting, services. I further find
that annually the Respondent performs services valued in
excess of'$50,000 for enterprises located within the State
of New York, which firms, in turn, perform_ services
-valued in excess of $50,000 for enterprises located out-
side the State of New York. Accordingly, it is concluded
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act Siemons Mailing Service, 122 NLRB 81 (1958).
II. BACKGROUND
On March 12, 1980, the Board issued an Order at 248
NLRB 352 against Argano Electric Corp., which essen-
tially adopted the findings and conclusions of Adminis-
trative Law Judge Nancy Sherman In that case, it was
concluded that Argano Electric Corp. (an electrical con-
tractor, whose president was Nicholas Argano and
whose superintendent and supervisor was Argano's
brother-in-law , Louis Squillante) violated Section 8(a)(1)
and (5) of the Act by - withdrawing recognition from
Local 363 in 1978 and by failing to honor an extant col-
lective-bargaining agreement with that Union. It also
2 On May 18, 1983, the Respondent offered into evidence a letter from
Jose Gonzalez to Region 2, requesting withdrawal of the charges in
Cases 2-CA-19011, 2-CA-19227, and 2-CA-19387 As the Regional Di-
rector did not approve this withdrawal request , and as I do not know the
circumstances leading to its tender , it is disregarded Mounia, 'Ltd, 197
NLRB 697 (1972).
8 Subsequent to the close of the heanng , the Respondent moved to
reopen the record to receive certain evidence This motion was denied
by me ' on July 14, 1983 (See App A) Also, as an appendix to its brief,
the Respondent tendered certain exhibits which it did not offer during
the course of the hearing To the extent that these do not consist of evi-
dence of facts about which I can take official notice or are not already in
this record, I shall not consider such exhibits -
A N • ELECTRIC CORP '
was found that Argano Electric Corp. violated Section
8(a)(1), (2), and (3) of the Act by recognizing and enter-
ing into a collective-bargaining 'agreement with Local 3,
International Brotherhood of Electrical Workers at a
time when it was bound to a contract with .Local 363.
The Order of the Board was enforced, by default, by the
Second Circuit Court of Appeals on April 21, 1981.4
Subsequently, Argano notified the Regional Director
for Region 29 of the Board that Argano Electric had
ceased operations and that it had no assets to meet the
financial obligations to employees and Local 363 under
the aforesaid judgment. (The amount estimated as owing
was at least $60,000.) Thereafter, on May 26, 1982, the
Board's Assistant General Counsel for contempt litiga-
tion made a motion for discovery before the court of ap-
peals seeking to discover whether Argano and/or Squil-
lante had formed two new corporations, A. N. Electric
Corp. and A & N Control Services Corp. as successors
and/or alter egos to Argano Electric Corp. On May 26,
1982, the courts entered an. order permitting the Board
to engage in discovery concerning the claim by Argano
Electric Corp., that it was financially unable to comply
with the make-whole remedy and the status of A. N.
Electric Corp., and the responsibility of Nicholas Argano
and Louis Squillante for continued noncompliance with
the court's judgment. At the present time, I do not know
if the Board has pursued discovery on these questions.
In the present case, it is one of the Respondent's con-
tentions that Argano was simply the superintendent and
supervisor of A. N. Electric Corp. and that Louis Squil-
lante was the president and principal shareholder of this
Company.5 There also was credible testimony from em-
ployee Jose Robles that about December 24, 1982, he
was told by Supervisor Rafael Gonzalez6 that the Com=
pany was going to change its name in January 1983.
Indeed, Argano testified that he is currently employed as
a supervisor by a company called Ozone Electric which
is located at the same address as A. N. Electric Corp.7
He also testified that he reports to someone named
Cathy, whose last name he could not recall. In this re-
spect, employee Robles testified that when he returned
to work in January 1983, he returned to the same jobsite
that he had worked on before December 24, 1982 (Beck
Street ' in the Bronx), and that there were the same
people employed under the same supervisor, Rafael Gon-
zalez . He also testified that he was told that the Compa-
ny's name had been changed to Ozone Electric.
III. THE TESTIMONY OF, NICHOLAS ARGANO
Prior to opening of the hearing, the General Counsel
issued a subpoena to Nichoas Argano, and a subpoena
duces tecum directed to Argano as president of A. N.
Electric. These subpoena were 'personally served on
* Judgment in No 80-4255 -
5 When Argano was asked if his wife held any of the shares of A. N.
Electric Corp, he testified that he did not know _
6 Based on the record as a whole, it is concluded that Rafael Gonzalez
is a supervisor within the meaning of Sec 2(11) of the Act In this re-
spect , the unrefuted testimony was that Rafael Gonzalez hired and fired
employees and that he assigned and directed their work
Argano could not recall when he ceased being employed by A. N
Electric Corp. or the circumstances under which he left that company.
891
Argano at a jobsite in January 1983 by Coffie. The sub-
poena duces tecum, a copy of which was also mailed to
Respondent's counsel, called for'the production of vari-
ous records of the Company as follows:
1. Such payroll records of A. N.' Electric for the
period.from January, 1982, to present, as will show
the' names, addresses rate of pays and gross wages
per week, bi-weekly or monthly, of all individuals
employed by A. N. Electric.
2. Such records of deduction made by A. N.
Electric from the salary or all individuals from Jan-
uary, 1982, to present, for Federal, state and city
taxes, FICA deductions, including any and all
records of the transmittal of such deductions to the
appropriate agencies.
3. Copies of books, records, memoranda, con-
tracts, or other documents which reflect the names
and addresses of all firms for which A. N. Electric
has performed services, including, but not limited to
the dates and locations of the sites at which such
services were performed and the gross value of the
services' performed, for the period of January 1,
1982; to present.
4. Such books, records, bills, invoices and other
documents which reflect the names and addresses of
all suppliers of goods, materials , and products, and
the location from which said products were shipped
to A.' N. Electric, for the period of January 1, 1982,
to present.
Subsequently, on February 17, 1983, the General
Counsel issued another subpoena duces tecum to Nicho-
las Argano c/o A. N. Electric Corp., directing him to
produce the documents described above.
In connection with these subpoenas, the Respondent
asserted that Argano was neither an officer, owner, nor
custodian for A. N. Electric Corp. It also asserted that
he was not even employed by that company at the time
the subpoenas were issued. The Respondent therefore
contended that Argano had no obligation to produce the
documents requested and therefore no adverse inference
should attach to his failure to do so. (In fact, the docu-
ments were never produced.) Further, the Respondent's
counsel asserted that when the subpoenas were issued, he
notified the General Counsel that they were defective for
the reasons stated above. However, he did not inform
the General Counsel as to who would be 'the proper
person upon whom service could be made. -
With respect to the documents subpoenaed,, it is evi-
dent that at least as to items 1 and 2, the documents
therein would have been relevant to the General Coun-
sel's' presentation of her case., In this respect, it was clear
from the Respondent's cross-examination that he was at-
tempting to show that the work on the jobsites where
Jose and John Gonzalez were employed, were complet-
ed or almost completed at the time of their terminations.
His questions therefore implied that both of these em-
ployees were laid off for lack of work.8 As such, the
6 In his opening statement , the Respondent 's counsel asserted that Jose
Gonzalez had been laid off and was not discharged He declined , howev-
Continued
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll records of the Company would have disclosed
whether or not any new employees were hired after
their termination.
In any event, when the hearing resumed on May 16,
1983, the General. Counsel notified the Respondent's
counsel that she wanted Argano and the subpoenaed
documents to be produced the following day before she
rested her case.9 On May 17, 1983, Argano did appear at
the hearing, but the documents were not produced.10 As
a consequence, the General Counsel decided not to call
Argano as 'a witness and rested her case, having shown
through secondary evidence that the Company had hired
new employees after the discharges of Jose and John
Gonzalez. At this point, the Respondent's counsel re-
quested, with 'the General Counsel's consent, that the
hearing be-put over until the following day at 11 a.m.
On May 18, at 11 a.m . the Respondent's counsel noti-
fied me that his witnesses had not yet appeared and he
requested additional time. I granted an adjournment until
noon. When -I reopened the record 'at noon, the Re-
spondent's counsel informed me that his witnesses had
not arrived, that he had made phone calls to ascertain
their whereabouts, and that in the absence of his wit-
nesses he was resting his case. However, about 12:15
p.m., Argano-showed up at the hearing and on motion, I
reopened the case.
Argano's initial `testimony was to the' effect that he
was currently employed by Ozone Electric as a supervi-
sor, that he had left the employ of A'. N. Electric some
time ago, and that he was neither an officer nor a share-
holder of the, Respondent. When he was asked to begin
testifying about the merits of these cases, the General
Counsel objected on the grounds that he should be pre-
cluded from testifying about the Company's defenses be-
cause of his failure to produce the subpoenaed docu-
ments. I 1
As a foundation issue was present regarding whether
Argano was the proper person to be served with the sub-
poenas duces tecum,.I decided (in order to expedite the
hearing) to ask Argano some questions regarding his re-
lationship to A. N. Electric Corp., Argano Electric
Corp., and Ozone Electric and the relationship, if any, of
these companies to each other.12 When it was soon obvi-
ous that Argano was being deliberately evasive, my
questioning of him, over the objection of the Respond-
ent's counsel, became more persistent and pressing. Nev-
ertheless, when concluded, I stated that I would overrule
the General Counsel's objection at that point and allow
Argano to testify about the merits of the cases, reserving
er, to be more specific regarding Respondent 's defense about this individ-
ual In its postheanng brief, Respondent asserted that the reason that
John and Jose Gonzalez were laid off was due to lack of work '
B Specifically , she requested that the documents called for in items I
and 2 of the subpoena duces tecum be produced.
10 In fact, the General Counsel had earlier asked the Respondent to
produce the subpoenaed documents at the outset of the trial
11 See Hedison Mfg. Co., 249 NLRB 791 (1980), American Art Indus-
tries, 166 NLRB 943' (1967); Bannon Mills , 146 NLRB 661, 633-634
(1964) - -
12 If A N Electric was simply an alter ego of Argano Electric, of
which Argano was president , and if Ozone Electric was simply a change
of name from A N. Electric, it would follow that the subpoenas ad-
dressed to Argano would have been properly served irrespective of his
title
for a later time , any final decision regarding the proprie-
ty of his testimony. At this stage of the proceeding, the
Respondent's counsel asked a few more questions of
Argano, after which a short recess was granted. During
the recess, a bench conference was held where upon the
Respondent's counsel informed me that Argano refused
to testify any further and that by the mode of my exami-
nation, he was too intimidated to continue. I, in turn, inl-
dicated that as there was a foundation issue concerning
the propriety of Argano being allowed to testify about
certain matters, it was my opinion that my questions
were appropriate for the purpose of ascertaining whether
there had been noncompliance with a properly served
subpoena. I also reiterated that I would listen to Ar-
gano's testimony concerning the merits of the cases, over
the objection of the General Counsel. Parenthetically, it
is my opinion that my examination of Argano was nei-
ther as harsh nor as intimidating as counsel suggests In
any event, the Respondent's counsel then indicated that
he had no other witnesses whereupon the hearing was
closed.13 This, in effect, left all'of'the testimony of the
General Counsel's witnesses unrebutted because Re-
spondent did not call any other witnesses as it apparently
had made no effort to secure their presence at the hear-
ing.
IV. THE DISCHARGES OF JOSE AND JOHN GONZALEZ
Jose Gonzalez, who had 15 years of experience as an
electrician, was hired by Nicholas Argano as an electri-
cian on November 22, 1981. Initially he commenced
work at a jobsite at 23d Street in Manhattan and, in Jan-
uary 1982, he was transferred by Argano to a jobsite at
139th Street and Lenox Avenue. The Lenox Avenue job-
site involved the rehabilitation of a housing complex
where A. N. Electric was the electrical subcontractor.
About February 1982, Jose Gonzalez' brother, Rafael
Gonzalez, was hired by Argano to work at the 139th
Street jobsite and after a short time, Rafael Gonzalez
became the foreman 14 Also, sometime in March or
April 1982, Jose Gonzalez' son John was employed by
the Company and was assigned to work at the 139th
Street jobsite. .
In June or early July 1982, Jose and John Gonzalez
were transferred by Argano to complete work at another
jobsite located at 180th Street and 'Mohegan Avenue,
Bronx, New York. Also working at' that site were two
other employees. John and Jose Gonzalez continued to
work at this site until they were discharged on July 22,
1982.
About July. 19, 1982, while Jose Gonzalez was work-
ing at the - 180th Street jobsite, he had a conversation
with a representative of the general contractor during
which he was told that the job's financing was subsidized
by the Federal Government. Based on this information,
19 Rafael Gonzalez, who, in any event, would have been necessary to
the Respondent's case, did not appear at the hearing
14 The previous foreman, Sal Coicho, had left the Company's employ
It appears that during the period before Rafael Gonzalez was hired, Jose
Gonzalez acted as the foreman However, it also was established that
subsequent to the employment of Rafael Gonzalez , Jose Gonzalez per-
formed no supervisory duties or functions
A. N. ELECTRIC CORP. _ 893
he surmised that as a federally subsidized project, he and
the other employees might be entitled, to higher rates of
pay and benefits in accordance with the law. 15 He there-
upon related this information to his brother and to his
son.
About July 19 or 20, Jose Gonzalez approached
Argano and told him that he had learned that the jobsite
was federally subsidized and therefore that he should be
getting more money. He asked if this was true and
Argano said that it was not true. About July 21, Jose
Gonzalez again spoke to Argano, reiterating his informa-
tion that the job was federally subsidized and asked
Argano what he was going to do about it. Argano asked
where Jose Gonzalez had 'gotten his information and the
latter declined to reveal his source. Argano then told
Jose Gonzalez that he would work it out and pay what-
ever he owed.
After speaking to Argano, Jose Gonzalez spoke to
some of the other employees of the Company informing
them of his opinion that they were entitled to higher
wages and benefits. He also testified that about July 21
he spoke with his brother Rafael who told him that if
Jose Gonzales continued to press Argano about the job
being federally subsidized, he would be fired. According
to Jose Gonzalez, his brother said that this was what
Argano had told him.
On Thursday, July 22, about noon, Argano terminated
the employment of Jose and John Gonzalez. When John
Gonzalez asked why, he was told that he was not needed
anymore. When Jose Gonzalez asked why he was being
terminated, he was told by Argano that he was starting
trouble for Argano. .
At the time of the discharges of John and Jose Gonza-
lez, it does appear that most of the work on the 180th
Street jobsite had been completed. However, the testimo-
ny also reveals that work remained to be done at the
139th Street jobsite, that the Company was working at
another jobsite in the Bronx, and that new employees
were hired after their termination.
It is my opinion that the testimony of Jose and John
Gonzalez establishes that Jose Gonzalez, after hearing
that the 180th Street jobsite was federally subsidized,
told his son and other employees that they all might be
entitled, under Federal law, to higher wages and benefits
and that he raised this question with Argano. In this re-
spect, it is clear that when employees or,an employee on
behalf of others makes a request to their employer for
higher wages and benefits that they are engaged in pro-
tected concerted activity as defined by Section 7 of the
Act. Fairmont Hotel Co., 230 NLRB 874, 878 (1977). As
it is my opinion that both Jose and John Gonzalez were
discharged by Argano because of this request and be-
cause he feared that they might seek the assistance from
the U.S. Department of Labor, it is concluded that the
15 Davis-Bacon Act, 46 Stat 1494 , as amended 40, US C § 276(a)
176(a)7, requires , in certain circumstances , that persons employed in the
construction industry as laborers and mechanics be paid in accordance
with "prevailing wage rates and fringe benefits " A variety of other stat-
utes also require such rates to be paid, including various statutes relating
to housing and urban redevelopment See App A of U S Department of
Labor Relations, Part 1. Procedures for Predetermination of Wage Rates.
Respondent violated Section 8(a)(1) of the Act. is It also
is my opinion that, when Rafael Gonzalez told Jose
Gonzalez that he would be fired if he kept pressing
Argano about the Federal subsidy question, the Re-
spondent, in this respect, also violated Section 8(a)(1) of
the Act.
Subsequent to their discharges Jose and John Gonzalez
signed, in consideration for certain sums of money, what
purportedly were general releases, absolving A. N. Elec-
tric, Nicholas Argano, and Louis. Squilante from all
claims arising out of their employment. 17
It .is the Respondent's position that the above releases
constitute a defense to the unfair labor practice allega-
tions concerning those two employees. I disagree. Al-
though the Board has deferred to "settlement , agree-
ments" in situations where there exists a collective-bar-
gaining agreement containing. a binding grievance-arbi-
tration clause, i e I am unaware of any case where the
Board has deferred to a private settlement between an
employer and an employee outside the scope of a labor
agreement. 19 In Schaefer v.• NLRB, 697 F.2d 558 (3d Cir.
1983), the court rejected an employer's contention that
the backpay claim of certain employees (who had been
discharged for enagaging in concerted activity) should
be dismissed because they signed releases and accepted
partial payments of their claims. The court stated (697
F.2d at 562):
The Board has been much less willing to defer,
even' to arbitral fora, .when rights protected by sec-
tion 7 are involved because of the great public in-
terest in protecting those rights. as distinguished
from non-statutory rights . . . . Given the high
scrutiny required by the Board in cases involving
section 7 rights, the absence of formal arbitration,
and the absence of any information as to what scru-
tiny was given to the claimed violations in the . . .
private settlements, ., . . we cannot hold that the
is I do not view as fatal to Jose Gonzalez ' case the fact that the Re-
glonal Director had onginally dismissed that portion of the charge, in
Case 2-CA-19011 relating to his discharge on the grounds that he was a
supervisor. Although the Regional Director did not formally retract his
dismissal letter , he obviously changed his mind when he issued the com-
plaint in Case 2-CA-19227 As this second charge was filed within the
-10(b) statute of limitations period , and as it does not appear from this
record that lose Gonzalez had any supervisory functions at the time of
his discharge , I do not perceive any grounds for not considering the
ments of his case I also do not consider as relevant to this proceeding
the fact that Jose Gonzalez, on March 7, 1983 , attempted to withdraw his
charge based on "settlement " The purported withdrawal was not ap-
proved by the Regional Director and is not approved by me I do not
know the nature of the purported "settlement" nor the circumstances
which lead to its fruition
17 Both Jose and John Gonzalez testified that although they did sign
-documents purporting to be releases , they also testified that the docu-
ments shown to them during the hearing by Respondent's counsel were
significantly altered after their execution. For example, Jose Gonzalez
testified that the release he signed set forth the sum of $500, which he
received, rather than the sum of $5000 which appears on the proferred
exhibit Similarly, John Gonzalez testified that he received $ 300 rather
than the sum of $3000 which appears on the exhibit
18 See, e g , Roadway Express Y. NLRB, 647 F 2d 415 (4th Cir 1981),
Coca-Cola.Botthng Co of Los Angeles, 243 NLRB 501 (1979)
19 Moreover, the testimony of Jose and John Gonzalez indicates to me
:• that the releases they signed were solely in the context of an attempt by
the Respondent to resolve possible claims under the Davis-Bacon Act
894 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
Board abused its discretion in entertaining the unfair
labor practice claims and in awarding backpay.
V. THE DISCHARGE OF RAY COFFIE, JOSE ROBLES,
RUPPERT ALLEN AND ISMAEL DEJESUS -
Soon after Jose and John Gonzalez were discharged
they visited the United States Department of Labor and
spoke -to a Mr. Vargas who was an investigator for that
agency. Thereafter, in late July or early August, Jose
and John Gonzalez introduced Vargas to the other em-
ployees of the Respondent. Vargas, over a relatively
short period of time, in August, proceeded to obtain
statements from Robles,- DeJesus, Coffie, and Allen con-
cerning their work for Respondent and their wages and
benefits. Vargas told the employees that under • the
Davis-Bacon Act they, as electricians, should be receiv-
ing $14.65 per hour plus certain other benefits.
Following the visit by Vargas, Rafael Gonzalez ques-
tioned Coffie, Robles, and DeJesus whether they had
signed statements for the Department of Labor. He also
told DeJesus that he, along with Coffie and Robles,
would be fired because'they signed such statements. As a
consequence, DeJesus} told Argano that he had made a
mistake in signing -a statement, whereupon Argano said
that he was going to get DeJesus into, a union and give
him a raise. Argano also told DeJesus that he was going
to get some paper from a lawyer and that everything
would be fixed. DeJesus returned to work. Similarly,
Robles testified 'that ' he was questioned about signing a
statement by Argano. He also testified that Argano said
that Robles would be given a -paper to sign, retracting
his statement, and that everyone was going to be given a
raise. Subsequently, - about September '23, 1982, 'Robles,
Coffie, and DeJesus signed releases in consideration, for
the payment of $10. In pertinent part, the documents
read: -
Releasor acknowledges and agrees that all compen-
sation and wages for services and labor performed
for releasee are reasonable and equal -to or.exceed-
ing labor and wage rates for similar work - per-
formed within the New York City Metropolitan
area. - -
Although not, certain about dates, the General Coun-
sel's witnesses testified that sometime in August or Sep-
tember they' were either brought or directed, to' Local'
363 by the Respondent. .Once at the Union, they were'
signed up as members of that labor organization. It also
appears that about the same time, the the Respondent en-
tered into a collective-bargaining agreement with Local
363. It is noted, however, that this "fact" is deduced
from the statements of Respondent's counsel and the
terms. and conditions of the labor. contract were not
proven by - any • competent witness during the course of
the hearing.20
20 Although the complaint alleges that the Respondent violated Sec.
8(a)(2) of the Act by encouraging its employees to join Local, 363, this
allegation seems to have been abandoned by the General Counsel in her
brief. Thus, if the Respondent recognized Local 363 pursuant to the pre-
vious Board Order and court decree, such "assistance" would ' not violate
the Act. '
At some point, either while at the union hall'or shortly
thereafter, employees Robles, DeJesus, Coffie, and Allen
were asked to sign and did sign "apprenticeship agree-
ments," pursuant to the Joint Apprenticeship and Train-
ing Council sponsored by Local 363. Thus, despite
having been employed as electricians- by Respondent,
and despite having been told by a representative of the
U.S. Department of Labor that their wages should be in
-excess of $14 while working on federally subsidized
projects, the "argeements" set their wages at $6.95 per
hour as apprentices. Although I am not well versed in
the law or regulations applicable to Davis-Bacon claims,
it seems obvious that these "agreements" were proferred
and signed in an effort to avoid liability under that Act.
Whether those agreements were valid or invalid attempts
to avoid such liability, I shall leave to the U.S. Depart-
ment of Labor.to decide.2 i
In any event, the above-named employees were also
told that they should enroll in vocational courses at a
local high school and attend such classes. In fact, Coffie,
Robles, and DeJesus did not attend the classes whereas
Allen (with some absences) did. None of the employees
were told, until their 'discharge, that nonattendance at
such classes -could result in their discharge.
In November 1982, Robles asked Argano for a raise
whereupon he was told that he was being let go. When
Robles went downstairs and told Rafael Gonzalez that
he was just fired because he asked for a raise, Gonzalez
went up to talk to Argano. Upon Gonzalez' return, he
told Robles that Robles had brought' up the "investiga-
tion." Robles was thereupon allowed to continue to
work after he told Gonzalez that h_e had merely asked
for a raise and had not spoken of the investigation.
In November 1982, Ray Coffie was given a leave of
absence to go to Puerto Rico. While in Puerto Rico he
received a phone call from Rafael Gonzalez who told
him that Argano had been downtown with the "Feder-
als" and that Argano was told that Coffie had signed
some papers. Coffie states that Gonzalez said that
Argano did not want him working for the Company if
he signed papers. Coffie told Gonzalez that he did not
sign papers and was told that he had better talk to
Argano: Coffie returned to New York on December 26
and called Argano on December 28. Although Coffie
testified that Argano told him during the-phone conver-
sation that he did not have a job anymore, he states that
he received a call to return to work from Rafael Gonza-
lez around January 7, 1983. Coffie did return to work at
the Beck Street job on January 10 but was thereafter dis-
charged about January 21.
According to Robles, a Christmas party was held on
December 24,"1982, after which he was told that he was
being laid off 2 weeks and that the Company was chang-
ing its name . He states that in January he was recalled to
2i It is not , of course , within my province to decide whether any of
the employees were entitled to higher wages and benefits pursuant to the
Davis-Bacon Act. The issue here is whether the Employer discharged
the employees , at least in part , because it believed that they were seeking
higher wages and benefits . Therefore, it is irrelevant to this case as to
whether or not the employees were actually entitled to the wages and
benefits provided for by the Davis-Bacon Act.
A N ELECTRIC CORP
the job at Beck Street (for Ozone Electric) and worked
there until he was let go along with Ruppert Allen and
Ray Coffie. I
Ruppert Allen testified -that on January 20, 1983,. he
spoke with a Graziano who' is also an investigator for the
U.S. Department of Labor Allen was told that Graziano
intended to visit Argano the following day and that
Allen's name might come up. On January 21, 1983,
Rafael Gonzales notified Allen, Coffie, and Robles that
they were being let go. According to Coffie and Robles,
Gonzalez told them that the reasons for their discharges
were that they were not going to school and they had
not been paying their union dues (They also testified
that they were never given notice that the failure to pay
dues could lead to their discharge.) According to Rup-
pert Allen, after he was told that he was being let go, he
went to see Argano and asked him why. He states that
Argano said that the reason was because he was not
going to school. When Allen told Argano that he was
the only employee who was, in fact, attending classes,
Argano said, "[W]ell I-don't hive any more work."
Ismael DeJesus, who also was not -attending classes,
was not discharged on January 21. However.on the fol-
lowing Monday, he was ,notified of his discharge by
Rafael -Gonzalez. When DeJesus asked for the reason,
Gonzalez said that Argano saw him and Coffie going
over to the NLRB. - - -
As noted above, I do not have jurisdiction to deter-
mine whether or not the employees of the Respondent
were being paid the lawful wages and benefits under the
Davis-Bacon- Act. Nevertheless, it is clear to me that, -
when employees Robles, Coffie, Allen, and DeJesus co-
operated with the U.S. Department of Labor and gave
statements to that agency, they were engaged in protect-
ed concerted activity within the meaning of Section 7 of
the Act. Clearly, their activity in this regard was con-
certed and such activity could have potentially lead to
an improvement in their mutual wages and working con-
ditions
It also is evident to me that the Respondent feared that
it might incur substantial liability as a result of the De-'
partment of Labor investigation and that it took several
steps, at various points, to obviate or mitigate that poten-
tial liability. Thus, after finding out that certain of its em-
ployes had given statements to the Department of Labor,
Respondent had Robles, Coffie, and DeJesus sign re-
leases wherein they "acknowledged" that their wages
were equal to or exceeded the wage rates for similar
work done in Metropolitan New York. Next, it had the
employees enrolled in an apprenticeship program in an
attempt to justify their lower rates of pay. In December
1982, the Company apparently, ceased operating as A. N.
Electric and changed its name to Ozone Electric. Final-
ly, when Department of Labor Investigator Graziano
went to visit Argano on January 20, 1983, the Company,
on January 21, discharged its employees Robles, Coffie,
and Allen. The following week DeJesus also was fired
and he was told that Argano believed that DeJesus was
accompanying Coffie to'the NLRB. '
I,am convinced that the principal motivating factor in
the discharges of the above-named employees was be-
cause Argano was aware of and feared that their coop=
895
eration with the U.S. Department of Labor might- cost
him substantial sums of money both in backpay and 'in
prospective pay. I reject as without merit the contention'
that Respondent was compelled to discharge these em-
ployees because they failed to attend classes under a pur-
ported apprenticeship program. For one thing, employee
Ruppert Allen did attend classes, but he, too, was given
this as the reason for his discharge Secondly, there was
no proof that the apprenticeship agreement complied
with the requirements of the U.S. Department of Labor
under the Davis-Bacon Act, or that the employees' at-
tendance of classes was a contractual condition of em-
ployment. Moreover, none of the employees were ever
told'that their nonattendance-of classes ,would or could
result in their termination of employment. In short, it is
my conclusion that this asserted reason was a pretext and
I therefore find that the above-named employees were
discharged because they engaged in the protected con-
certed activity of cooperating with the U S Department
of Labor concerning an issue about their proper wages
and benefits under the Davis-Bacon Act. Kyle & Stephen,
Inc., 259-NLRB 731 (1981); Synadyne Corp., 228 NLRB
664, 681, '684-685 (1977). In the case of Ismael DeJesus, I
find that, an additional unlawful reason for his discharge
was Argano believed that he was going to assist employ-
ee Coffie in'an investigation by the NLRB. Although not
alleged_as a violation of Section 8(a)(4) of the' Act, it is
concluded' that the discharge of DeJesus constitutes a
violation of Section 8(a)(1) of the Act. -
It also is concluded, based on the uncontroverted evi-
dence, that:
(1) The,Respondent violated Section 8(a)(1) of the Act
by threatening employees with discharge because they
aided an investigation by the U.S. Department of Labor.
(2) The Respondent violated Section 8(a)(1) of the Act
by interrogating employees regarding their contacts with
and assistance to the U.S. Department of'Labor.
(3) The Respondent violated Section 8(a)(1) of the Act
by promising higher wages and benefits to its employees
in order to induce them to refrain from assisting the U.S.,
Department of Labor.' ,
CONCLUSIONS OF LAW
1. A. N. Electric Corp. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2.• By discharging Jose and John Gonzalez on July 22,
1982, because of their concerted requests for higher
wages and benefits, Respondent violated Section 8(a)(1)
of the Act.
3. By threatening its employees with discharge because
they aided or assisted an investigation under the Davis-
Bacon Act by the U.S. Department of Labor, the Re-
spondent violated Section 8(a)(1) of the Act.
4. By interrogating its employees regarding their assist-
ance or participation in the aforesaid investigation by•the
U.S. Department of Labor, the Respondent violated Sec-
tion 8(a)(1) of the Act. - '
5. By promising its employees higher wages and bene-
fits in order to induce them to refrain from assisting the
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U.S. Department of Labor, the Respondent violated Sec-
tion 8(a)(1) of the Act.
6. By discharging its employees Ray Edwin Coffie,
Jose Robles, and Ruppert Allen on•January 21, 1983, and
by discharging its employee Ismael DeJesus on January
25, 1983, because' they assisted an. investigation by the
U.S. Department of Labor pursuant to the Davis-Bacon
Act, the Respondent violated Section 8(a)(1) of the Act.
7. By discharging Ismael DeJesus because Respondent
• .believed that he was going to the National Labor Rela-
tions Board to assist Ray Coffie, Respondent violated'
Section 8(a)(1) of the Act. .
8. The aforesaid unfair labor practices-affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Except to the extent heretofore found to be. viola-
tions of the Act,- the other allegations of the complaint
are dismissed... -
THE REMEDY
having found that the Respondent' unlawfully, dis-
charged certain of its employees, and engaged 'in other
actions found to be in violation of:the Act, I shall recom-
mend that Respondent cease and desist therefrom V and
take certain affirmative action to effectuate the purposes
of the Act. -
With respect to Jose and John -Gonzalez, Ray Coffie,
Jose Robles, Ruppert Allen, and Ismael DeJesus it is rec-
ommended that, Respondent offer them full and immedi=.
ate reinstatement to their former jobs or; if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
previously enjoyed, and to make-them whole for any loss
of earnings they may have suffered by reason -of the dis-
crimination practiced against them, such earnings to be
computed in accordance with the formula set forth in F.
W. Woolworth Co., 90 NLRB 298 (1950), with interest
thereon to be- computed in the manner prescribed in Flor-
ida Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co, 138 NLRB 716 (1962).
Additionally, in accordance with Sterling Sugars, .261
NLRB 472 (1982), I shall recommend that Respondent
remove from its files any reference to the discharge of
aforesaid employees and notify them in writing that this
has been done and that evidence of these unlawful dis-
charges will not be used as a basis for future personal ac-
tions against them.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22 -
ORDER
The- Respondent, A. N. Electric Corp., New York,
New York, its officers, agents, successors , and assigns, ' .
shall
1. Cease and desist from
(a) Discharging or refusing to reinstate any employees
because they have engaged in protected concerted activi-
ties for mutual aid and protection.
(b) Interrogating employees regarding their assistance
to the U.S. Department of Labor. -
(c) Threatening employees with discharge or other re-
prisals or promising wage increases and benefits to em-
ployees, in order to induce them to refrain from giving
assistance to investigations by the U.S. Department of
Labor or the National Labor Relations Board.
(d) In -any like or related manner interfering with, re-
straining; or coercing its 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 Jose and John Gonzalez, Ray Coffie, Jose
Robles, Ruppert Allen, and Ismael DeJesus immediate
and full, reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges and make them whole' for any loss of earnings
they may have suffered in the manner set. forth in the
remedy'section of this decision.
(b) Remove from its files any references to the dis-
charge of the above-named employees and notify them in
writing that this has been done and that evidence of the
unlawful discharges will not be used as a basis for any
future personnel actions against them. "
(c) Preserve and, on request, make available to the
Board and its agents for examination and copying, all
payroll records, social security payment records, time-
cards, --personnel' records and reports, and all other
records necessary to - analyze the amount of - backpay
which may be due under the terms of this Order. Addi-
tionally and, on request, make available to the Board and
its agents, for examination and copying, all corporate
records, memoranda, correspondence, or other docu-
ments -as will show whether the Respondent has changed
its name; whether or to whom Respondent has sold, as-
signed, or transferred any or all of its assets, property, or
accounts; and any such records as will show the names
of its shareholders and corporate officers.
(d) Post at its place of busmess copies of the attached
notice marked "Appendix B."23 Copies of the notice, on
forms provided by-the Regional Director for Region' 2;
after being signed by the Respondent's authorized repre-
sentative, shall be posted by'the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. - •
22 If no ' exceptions are filed as provided by Sec 102 46 of the Board 's 23 If this Order is enforced by a Judgment of a United States Court of
Rules and Regulations , the findings, conclusions , and recommended Appeals, the words in the notice reading "Posted by Order of the Na-
Order shall , as provided in Sec . 102 48 of the Rules, be adopted by the - tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
Board and all objections to them shall be deemed waived for all pur - of the United States Court of Appeals Enforcing an Order of tnc Nation-
poses. , . , _ al Labor Relations Board."
A N ELECTRIC CORP. I - 897.
APPENDIX A
ORDER DENYING MOTION TO REOPEN'
RECORD -
The hearing in these matters commenced on February
14, 1983 and thereafter continued on seven other days in
April and, May 1983. On May 18, 1983 the hearing
closed after Respondent's Counsel stated that he had no
further witnesses. At the close of the hearing, the'time
for filing briefs was set for June 20, 1983. Subsequently,
the time for filing briefs was postponed to July 11 and
then to July 22 at the respective request of each party. -
By Motion dated July 7, 1983, Respondent's Counsel
made an application to reopen the record for ' the limit-
ed purpose of receiving the testimony of Thomas J. Car-
lough, Director, Joint Apprenticeship '& Training Coun-
cil of Local 363, IBT [and] the United Construction
Contractors Association Inc." It is asserted that this evi-
dence is necessary to establish an affirmative defense to
the -alleged unlawful discharges of Ray Coffie, Jose
Robles, Ruppert Allen and Ismael DeJesus. In this re-
spect, the testimony of the General Counsel's witnesses
was,, in essence , that these individuals contacted and as-
sisted the United States Department of Labor, Wage &
Hours Division, in relation to wages and benefits levels
under the Davis-Bacon Act for work done on federally
subsidized construction projects. Their testimony also
was, in substance, that when they were discharged or
laid off, they were told that the reasons were, (1) they-
had not attended vocation classes , and (2) they had not
paid dues to Local 363 IBT. The General Counsel con-
tends, inter. alia , that the aforesaid employees were dis-
charged because of their concerted activities in seeking
higher wages and benefits pursuant to the Davis-Bacon
Act.
The Respondent, through its Counsel, asserted at the -
hearing that at some time subsequent to a decision in
Argano Electric Corp., 248 NLRB 352,2 A. N. Electric
executed a collective-bargaining agreement with Local
363 in compliance with that decision and in view of the
claim by Region 29 of the Board that A. N. Electric
Corp. was a successor and/or alter ego of Argano Elec-
tric Corp. The purported contract, however, was not of-
fered through any competent witness who was party to
its execution. Respondent also asserted that at one point,
and apparently subsequent to the commencement of an
investigation by the U.S. Department of Labor, as de-
scribed above, it notified the employees of the Union
contract, facilitated their membership in the Union, and
had them enrolled in an apprenticeship program for elec-
tricians. It seemingly asserts, that once having been en-
rolled in such an apprenticeship program, the Respond-
ent was thereby entitled under the Davis-Bacon Act, to
pay the employees wages below those allowable by law .
for journeymen and mechanics, and that the contract re-
quired, as a condition of their continued employment,
that they attend vocational classes: Respondent therefore
contends, "that- under the terms of the collective bargain-
1 This Motion was opposed by the General Counsel in a letter' dated
July 13, 1983 `
2 Enforced by the Second Circuit Court of Appeals on April 21, 1981
ing agreement governing its relationship with its employ-
ees, it was required to discharge said complainants from
employment for failing to comply with the requirements
of the United States and New York State Department of
Labor and the Joint Council pertaining to said training
program."
Pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure, a trial may be reopened where, inter alia, the
proponent wishes to offer "newly discovered evidence"
which by the due diligence could not have been discov-
ered in time to move for a new trial under Rule 59(b).3
In NLRB v. Decker and Sons, 559 F.2d 357 (5th Cir.
1978),.the courts stated:
Petitions to the Board to reopen 'a case when based
upon an allegation of newly discovered evidence,
are controlled by the same' considerations that con-
trol motions for a new trial or to reopen a case
under Rule 59(b) and-60(b)(2) of the Federal Rules
of Civil Procedure.
That the evidence must be in existence at the time
of the trial has often been stated. (citation omitted)
The Court in' Prostrollo v. University of South
Dakota, 63 F.R.D. 9, 11• D.S.D. 1974) restated the
principle and its rationale; "There can be no Rule
60(b)(2) relief for evidence which has only come
into existence after the trial is over for the obvious
reason that to allow such a procedure could mean
the perpetual continuation of all trials. `Newly dis-
covered evidence' under Rule 60(b) refers to evi-
dence of facts in existence at the time of the trial of
which the aggrieved party was excusably ignorant."
It is obvious to me that the evidence which the Re-
spondent proposes to offer can hardly be construed as
newly discovered evidence within the meaning of the
Federal Rules of Civil Procedure. The claimed affirma-
tive-defense was asserted during the hearing which pro-
ceeded over a four-month period. Moreover, it is based
on an alleged contractual obligation which therefore can
hardly be said to be unknown to the Respondent. It
therefore was incumbent on Respondent's Counsel to
prepare his case for trial and to exercise due diligence in
gathering -the evidence for presentation during its
course.4 To say that this evidence was not obtainable to
Respondent by "due diligence" would, in effect, serve to
redefine those words so as to strip them of meaning.
Therefore, any contention that Respondent was "excus-
ably ignorant" of this evidence can have no merit.
IT HEREBY IS ORDERED that the Respondent's Motion
to reopen the record is hereby denied.
3 A parallel provision appears in the Board 's Rules and Regulations at
Section 10248(d)(1) That ' section states, inter ala, that, "A motion to
ropen-the record shall state briefly the additional evidence sought to be
adduced, why it was not presented previously , and that if adduced and
credited, it would require a different result Only newly discovered evi-
dence, evidence which'has become available only since the close of the
hearing, or evidence which the Board believes should have been taken at
the hearing will be taken at any further hearing "
4 At no time during the hearing did Respondent's Counsel indicate that
he intended to call Mr Carlough as a witness