Bristol Industrial Corporation/C.O. Sabino Corporation, as joint employers or a single employer

National Labor Relations Board - Administrative Judge Opinions

Dec 2, 2016

04-CA-148573 (N.L.R.B. Dec. 2, 2016)

JD–100–16
New Castle, DE
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BRISTOL INDUSTRIAL CORPORATION AND
C.O. SABINO CORPORATION (Single and Joint Employers)
Case 04–CA–148573
and 04–CA–153165
METROPOLITAN REGIONAL COUNCIL OF CARPENTERS,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
SOUTHEASTERN PENNSYLVANIA, STATE OF DELAWARE AND
EASTERN SHORE OF MARYLAND
Elana Hollo, Esq.,
for the General Counsel.
Edward H. Wiley, Esq.,
for the Respondent.
Marc Gelman, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania on February 16 and 17, 2016. The Union filed the first charge on March 20, 2015;1
the first amended charge was filed on April 8 and the second amended charge on May 28. The
Union filed the second charge on May 28, 2015. The General Counsel issued the consolidated
complaint on August 4, 2015, and the amended consolidated complaint on January 27, 2016. The
Respondents filed answers denying all material allegations.
On February 16, 2016, at the beginning of the trial, I granted the General Counsel’s
motion to further amend the complaint based on the reorganization of the Union.2 (GC Exh. 2,
17.) The Respondents admit the changes in Union organization (paragraph 4) but continue to

1 All dates are 2015 unless otherwise indicated.
2 On February 3, 2016, the Metropolitan Regional Council of Carpenters was dissolved and merged
into the Northeast Regional Council of Carpenters.
JD-100-16
deny the appropriateness of the Unit and the Union’s representation of the Respondents’
employees (paragraph 8).
The complaints allege that the Respondents, a single or joint employer, violated Section
8(a)(3) and (1) of the National Labor Relations Act (the Act) when they interrogated employees 5
regarding Union activities and discharged two employees due to their protected concerted
activity, having the police eject them from the work site.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondents, I make the 10
following
FINDINGS OF FACT
I. JURISDICTION15
Respondent Bristol Industrial Corporation (Bristol), a Delaware corporation, is a general
contractor with an office in New Castle, Delaware. It purchased and received goods valued in
excess of $50,000 directly from points outside the state of Delaware in the 12 months prior to
February 2016. 20
Respondent C.O. Sabino Corporation (Sabino), a Delaware corporation, is a general
contractor with an office in Philadelphia, Pennsylvania. It performed services valued in excess of
$50,000 for entities outside the Commonwealth of Pennsylvania in the 12 months prior to
February 2016.25
The Respondents admit, and I find, that each company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
I further find that the Union is a labor organization within the meaning of Section 2(5) of 30
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background35

Bristol is owned solely by Felicia Enuha, who is its sole officer. Sabino is owned solely
by Valentine Verissimo, who is its sole officer. Enuha and Verissimo had a longstanding
personal relationship. Although they were never married, they had, in the past, lived together
and had five children together. 40
At the relevant time, Bristol had a contract to perform construction services at William F.
Cooke, Jr., Elementary School in Hockessin, Delaware. Bristol also had a contract to perform
construction services for the Wilmington Housing Authority (WHA). Bristol subcontracted
much of that work to other companies. As a general contractor at WHA, Bristol subcontracted 45
with 4 or 5 companies. They did not submit bids to Bristol, just estimates. One of the
subcontractors Bristol used was Sabino. Enuha and Tom Berrian, then her senior project
JD-100-16
3
manager/estimator, decided the appropriate monthly price for the job. They orally offered Sabino
that monthly rate, and Verissimo agreed. Sabino subcontracted to serve as project manager for
the Cooke site in February 2014; it subcontracted for the WHA site in September 2014 and in
January 2015. (GC Exh. 3, 4, 5.) Despite the terms of the subcontracts, Bristol provided all
materials used on the projects, and Sabino did not perform certain of the duties specified in the 5
subcontracts. Bristol also owned two vehicles (a cargo van and a Silverado), either of which
Verissimo (and other subcontractors) could use in the performance of his duties, e.g., delivering
materials.3 Ralph Shelby was Bristol’s superintendent at the WHA job, overseeing the project
onsite. Sabino served as Project Manager at Cooke; that job was supervised initially by Joe
Yack. 10
Employment of Dougherty and Boroughs
Both projects were well underway when Bristol determined it needed additional
manpower for WHA, though Cooke was winding down. Enuha consulted Shelby; he 15
recommended Brian Dougherty, a carpenter with whom he had worked previously and who he
felt was a good worker. Dougherty was scheduled for an interview; he brought a coworker,
Thomas Boroughs, with him. Neither Enuha nor Shelby knew Boroughs or was familiar with his
work. Enuha and Shelby interviewed Dougherty and had him complete an application and tax
forms. Enuha hired Dougherty to work at the WHA site, but she advised Boroughs that she had 20
no work for him at that time. Nonetheless, he also completed an application and tax forms.
Enuha said she might call him later if she needed more help. Enuha told Dougherty that the job
involved all tasks, and he said he could do anything. Bristol had no carpenters on board when
Dougherty was hired, though there had been many carpenters (over 20) on and off, as needed, on
the projects. 25
Dougherty began working at WHA in December 2014. Later in the month, he began
working at Cooke, where he reported to foreman Joe Yack. Dougherty was told later on his first
day there that Yack quit. Dougherty was asked to assume the duties of foreman at the Cooke job
for Bristol. 30
Enuha later had Shelby call Boroughs to work at WHA in December 2014.
Enuha testified that she routinely loaned out employees to subcontractors. Both
Dougherty and Boroughs were loaned to Sabino, as well as two other employees, Tyrone Fennell 35
and Glenn Hayward. The arrangement was very informal with Sabino, as with other companies.
Neither Dougherty nor Boroughs completed applications for Sabino. Bristol provided Sabino
with Dougherty’s and Boroughs’ tax withholding forms. The employees received paychecks
from both companies. (GC Exh. 10, 11, 14, 15.) Verissimo told Dougherty that the checks from
Sabino were for WHA work, and checks from Bristol were for work at Cooke. The wages were 40
different for work performed at each job site; Cooke was a prevailing wage project but WHA
was not. For example, Dougherty worked 24 hours at the rate of $20 per hour at the WHA site
during pay period December 13 – 19, 2014. He worked 8 hours, doing carpentry work at Cooke
at the rate of $50.02 per hour, during pay period December 14 – 20, 2014. He worked
exclusively at WHA at the rate of $20 per hour during pay period December 20 – 26, 2014. He 45

3 Bristol paid for the gas, repairs, and insurance.
JD-100-16
4
worked 32 hours, doing finishing work at the rate of $42 per hour, at Cooke during pay period
December 28 – January 3, 2015. He worked 40 hours at Cooke during pay period January 4 – 10.
Thereafter, until his termination, he worked at both sites. (GC Exh. 10 and 15.) Initially, on
days when Dougherty worked at both sites, he worked more than 8 hours. Enuha then instructed
him not to work past 3:30 at the WHA site, though 4:30 was the normal end time. (Tr. 149-50.) 5
Boroughs worked at WHA at the rate of $18.75 per hour during pay period December 20
– 26, 2014. That was at least $5 per hour than the standard rate for carpenters at that site. (Tr.
263-64.) He worked 40 hours at Cooke during pay period January 4 – 10, at the same rate as
Dougherty. After February, Boroughs appears to have worked primarily at WHA at the rate of 10
$18.75 per hour. (GC Exh, 14.)
Four other employees later joined Dougherty and Boroughs at the WHA site. Two were
laborers, one a finisher, and one did plumbing/HVAC work. Other employees worked part-time
for limited periods, including painters.15
Bristol and Sabino were satisfied with the work performance of both Dougherty and
Boroughs although there were some interpersonal disputes between Shelby and Dougherty at
WHA. (Tr. 276, 305.) In fact, Enuha gave Dougherty significant additional responsibilities,
including reviewing potential bids and obtaining new employees through Craigslist. (GC Exh. 20
28.) In February 2015, Shelby complained to Enuha about Dougherty. She told him he should
not fire any more employees; he had already fired two employees, and she could not afford to
lose the manpower. Shelby apparently became concerned that Enuha might fire him. He talked to
Dougherty and Boroughs about joining a union to protect their jobs.
25
Employees’ Union Contact
Dougherty called Sam Noel at Local 626. Dougherty, Boroughs, and Shelby met with
Noel on February 25, 2015. Noel interviewed them about their skills, as none had completed
Union apprenticeships. Noel was satisfied and the three signed cards authorizing the Union to 30
represent them in dealing with both Bristol and Sabino. (GC Exh. 18, 19.)
Shelby went to Enuha sometime after that, and told her that Dougherty had contacted the
Union, and that he had accompanied Dougherty, and Boroughs to a meeting with the Union
when he felt his job was threatened. 35
The Union filed with the Board a petition to represent the full-time and part-time
carpenters. (GC Exh. 7.) Notice of the petition was faxed to Bristol on March 11, 2015, at
9:59 am. (GC Exh. 9.) That notice advised that an election would be held on March 20, 2015.
40
Interrogations about union activities
According to Boroughs, on the morning of March 11, Verissimo asked him if he had
signed a union card. (Tr. 225-26.) Boroughs said that later, Verissimo said “I don’t want no
fucking union on my job site,” and “I don’t want a union here.” Verissimo did not specifically 45
deny asking whether Boroughs signed a card; he did deny making the antiunion comments. (Tr.
282.) Further, Verissimo denied having any knowledge about the union on that date. I do not
JD-100-16
5
credit that testimony. Based on their personal relationship, I find it likely that Enuha would have
advised Verissimo of Shelby’s confession as well as her receipt of the petition. Therefore, I
credit Boroughs’ testimony.
Enuha testified that, on March 12, 2015, she went to the WHA work site for a meeting 5
with another subcontractor, Prado. She testified that, on her way, she received a call from
Andrew Johnson, the owner of the site, who complained that Dougherty had insulted him. When
Enuha arrived at the WHA site, Prado was not there, so she went to talk to Dougherty. She asked
him why the tasks were not completed. He responded that “we are not doing drywall or finishing
anymore,” and then said he had told Shelby he was not going to do anything anymore. She left 10
briefly to look for Prado, then returned and talked to Dougherty and Boroughs, who were on the
stairs. She asked Dougherty about the issue with Johnson, which Dougherty denied. Dougherty
then said “what if I did, he can’t do anything because we’re covered.” Enuha felt his attitude
might be related to what Shelby had told her, about going to the Union. She asked Dougherty if
he was behaving as he was because he had signed something with the Union, and that he had to 15
stop his behavior with Johnson as it was making her look bad and she needed the work. Enuha
denied asking Boroughs about signing a union card.
Dougherty’s version of the exchange was somewhat different. He testified that Enuha
asked him if he knew anything about “this union thing.” She said “someone’s been speaking 20
with the Union” and asked if it was he. Dougherty admitted that he had spoken to the union, and
that Enuha asked “why he would do such a thing.” He explained his reasons, and Enuha replied
that she needed him to be honest with her so she could talk to her lawyer about her “next course
of action.” (Tr. 161-62.) Enuha explained why she did not see any benefit to the employees of
belonging to the union, and saw no benefit for her company. Dougherty further testified that he 25
did not refuse to do drywall work. Rather, Enuha said she wanted him to do the drywall work at
the WHA site, but Dougherty felt the priority was dealing with the punch list at Cooke. After
some discussion, he and Enuha agreed that other employees would do the WHA drywall while
Dougherty went to Cooke to check out the punch list tasks. Boroughs testified that she asked him
whether he had signed anything with the Union, and said she needed to trust him, and that the 30
Union did not have anything to offer the employees. (Tr. 226-27.)
I generally credit Enuha’s version of the conversations. Enuha did not want the Union at
her company, and most likely did say that unions had nothing to offer the employees. However,
her purpose at the WHA site that day was to address deficiencies with the work that had been 35
performed. She also was concerned about Dougherty’s attitude. He had been a good worker, and
she had entrusted to him the responsibility for overseeing the project as well as other significant
responsibilities in her company. His attitude had recently changed, as shown in his comments
reported to her by Shelby and Johnson, as well as his comments directly to her. Enuha felt that
Dougherty did not have the right to decide the project priorities or to tell her how to manage the 40
projects. It was Dougherty’s statement regarding “being covered” that prompted her question
about signing something for the Union.
I also credit Enuha’s testimony that she did not ask Boroughs whether he had signed a
union card. As I have credited her version of the conversation, it made some sense for her to ask 45
Dougherty, given his statement about “being covered.” She had little discussion with Boroughs
at that time, and had no reason to ask him.
JD-100-16
6
Termination of Dougherty
Enuha testified that on March 17, she received a call from Lee Cherry, superintendent for
the main contractor at Cooke, Whiting-Turner, who said there were some mistakes that he
wanted Dougherty to look at. Enuha asked Verissimo to take Dougherty out to Cooke. The next 5
day, Verissimo told her that Dougherty said he would do only framing, but no finishing or
drywall. She then called Dougherty. He said it would take 2 days to complete the work, and she
advised him it was important to complete it within that time. She then asked about his comments
to Verissimo, and he repeated that he wouldn’t do finishing or drywall. Enuha was concerned
since she had hired him to do all necessary tasks, not just carpentry, and he had been doing so. 10
She said she would come to the site to talk to him about this later. When she arrived, Dougherty
had already gone for the day. Enuha returned to her office; she decided she could not tolerate
Dougherty’s behavior and drafted a termination letter. (GC Exh. 27.)
The next day, March 19, Enuha went to the WHA work site and handed Dougherty the 15
termination letter. It included the following paragraph:
The company hired you to perform carpentry, flooring, dry wall, cabinetry and other
work. In fact, you have been doing satisfactory dry wall work for the company. However,
on the last two occasions (3-12-15 at the WHA site and 3-18-15 at the Cooke site) when 20
you have been told to do dry wall you have made it clear to myself, supervisors (Ralph
Shelby) and (Valentine Versissimo) project manager at Cooke site and your employer at
WHA, and other employees on the job sites that you would no longer do such work,
irrespective of the company’s request that you do so.
25
(GC Exh. 27.)
Enuha and Dougherty had no further contact after that date.
Dougherty noticed that the paycheck enclosed with his termination letter was incorrect. 30
He approached Verissimo to ask about the amount, then began to leave the site. Verissimo
stopped him, saying he may have been fired by Bristol but he was still on the clock for Sabino,
so he returned to work. That evening, Verissimo called Dougherty at home and advised him that
he was being laid off by Sabino for lack of work. The project was not completed, and there was
work available of the same type that Dougherty had been performing. Sabino did not finish the 35
Cooke project until April or May.
The next day, Dougherty went to the WHA work site to get his paycheck. Shelby was
upset and called Verissimo, who directed Shelby to call the police.4 The police talked to Shelby
and Dougherty. Dougherty then drove his truck around the corner, and waited for Verissimo to 40
arrive with his paycheck. The police did not charge Dougherty with any offense.

4 Although this is alleged as a violation in the complaint, it was not briefed by the General Counsel. I
assume this allegation has been abandoned by the General Counsel.
JD-100-16
7
Termination of Boroughs
When Boroughs reported to work at the WHA site on March 20, Shelby advised him that
he was being laid off for lack of carpentry work. The project was not finished, so there was still
work available for Boroughs.5
The first unfair labor practice charge was mailed to the Respondents on March 20, 2015.
On March 27, Verissimo asked both Dougherty and Boroughs to return to work. They
were unavailable immediately, but reported to the WHA site on March 30. Verissimo then fired 10
both employees for failing to bring their power tools – either drywall guns (in order to perform
drywall tasks) or for failing to bring electric screwdrivers (necessary to access the worksite).
Verissimo testified that Dougherty became upset and used profanity, so he called the police, who
came and spoke to all three. Neither Dougherty nor Boroughs received a citation for any offense.
15
Dougherty and Boroughs testified that they had never brought their own power tools to
work, and that until that date, Bristol had always provided the power tools. Enuha testified that
she had provided the tools, and kept them in a locked gang box at the job sites, because they had
been stolen in the past. (Tr. 274-77.) Shelby had the key for the gang box at WHA, and
Dougherty had the key for the box at Cooke. I credit the testimony of Dougherty and Boroughs 20
regarding the power tools and I find that they had previously used power tools provided by
Bristol, not their own. Further, if, as Verissimo testified, all employees were required to bring
power tools, and that an electric screwdriver was necessary in order to access the WHA site, then
he and Shelby should have had their electric screwdrivers as well.
25
Analysis
Are the Respondents a Single Employer?
The Board has found that two nominally separate entities constitute a “single employer” 30
when there is an absence of an arm’s length relationship between them. Hydrolines, Inc., 305
NLRB 416, 417 (1991). The significance of finding two companies to be a “single employer”
is that both are jointly and severally liable for the unfair practices committed and are responsible
for remedying them.
35
In determining whether or not there is an arm’s length relationship, the Board considers 4
factors: (1) the interrelationship of operations; (2) common management; (3) centralized control
of labor relations and (4) common ownership, Emsing’s Supermarket, Inc., 284 NLRB 302, 304
(1987) enfd. 872 F.2d 1279, 1288-87 (7th Cir. 1989).5
40
No one of the four criteria is controlling and all four need not be present to warrant a
single-employer finding. The Board has stressed that the first three criteria are more critical than

5 The single employer concept is close but distinguishable from the concepts of “joint employer” and
“alter-ego.” The joint employer concept, for example, applies to situations in which more than one
independent business concern has control over one or more projects. “Alter-ego” analysis is normally
reserved for situations in which one entity has gone out of business and has been replaced by another.
JD-100-16
8
common ownership, with particular emphasis on whether control of labor relations is centralized,
as these tend to show operational integration. Hydrolines, Inc., supra.
Bristol awarded subcontracts to Sabino without competitive bidding, indeed, without any
written bid. However, this was Bristol’s routine practice, and not limited to subcontracts with 5
Sabino. Rather, companies submitted estimates to Bristol. Additionally, Verissimo was free to
use either of the work vehicles owned by Bristol. However, those vehicles were available to all
subcontractors. Bristol loaned employees to subcontractors, including Sabino. That was a
routine practice for Enuha, not just with Sabino. Therefore, I find these points immaterial.
Nonetheless, due to the long term friendship between Enuha and Verissimo, the parties’ 10
professional relationship was very casual and thus problematic.
Factor (1): The operations of Bristol and Sabino were interrelated, at least on these
projects. Bristol supplied materials and tools to Sabino, gratis, regardless of the subcontract
terms. Enuha hired Brian Dougherty and Thomas Boroughs. While they were hired as Bristol 15
employees, they were loaned to Sabino without their knowledge. Both started their jobs as
Sabino employees at the WHA site, without having been interviewed or selected by Verissimo.
Although Enuha testified that she hired Dougherty for Cooke as WHA had already been
subcontracted out, Dougherty in fact reported initially to WHA. Dougherty and Boroughs
reported their time on both sites to Enuha or Shelby. Enuha instructed Dougherty to stop work 20
before the normal quitting time at WHA, so that he would not work more than 8 hours a day,
when working at both Cooke and WHA on the same day. Paychecks for both companies were
distributed by Enuha or Verissimo. There is no credible evidence of any action taken by
Verissimo with regard to staffing or supervising the job, though Sabino was project manager,
other than minimal action on March 19 and the incidents related to March 30. The record shows 25
that Verissimo himself did little other than deliver materials. Dougherty did not deal with
Verissimo regarding Cooke, but with Enuha and Lee Cherry, superintendent for the general
contractor, Whiting-Turner. (GC Exh. 23, 24, 25, 26.)
Factor (2): Enuha substantially managed Sabino, as well as Bristol. The only 30
management action that Verissimo seemed to take was to issue the Sabino paychecks. He was
not involved in overseeing Cooke or making progress reports, though Sabino was the project
manager.
Factor (3): Felicia Enuha, the sole owner of Bristol, substantially controlled the labor 35
relations of both companies. This is evidenced by the fact that she hired Dougherty and
Boroughs, unilaterally loaned them to Sabino, and gave Sabino copies of their tax withholding
forms. She fired Brian Dougherty for conduct occurring at WHA and Cooke Elementary School.
After Enuha fired Dougherty and laid off Boroughs, on March 19 and 20, neither of them worked
for Sabino, until Verissimo called them on March 27. 40
Factor (4): There is no common ownership of Bristol and Sabino. However, given the
lack of arm’s-length dealings between the two companies, I find it unnecessary, as the General
Counsel suggests, to distinguish this case from US Reinforcing, 350 NLRB 404 (2007) in which
the Board appeared to consider the absence of a marriage license determinative of whether two 45
companies were alter-egos. I find that Bristol and Sabino are a single employer even in the
absence of common ownership.
JD-100-16
9
I find that Bristol Industrial Corporation and C. O. Sabino are a “single employer” and
are jointly and severally liable for the unfair labor practices in this case.
Did the Respondents violate the Act by asking employees about union activities?
5
The test for determining whether questioning of an employee violates Section 8(a)(1) of
the Act is whether it would reasonably tend to coerce employees in the exercise of their Section
7 rights. Grand Canyon University, 362 NLRB No. 13 slip op. 1 (2015), citing Hanes Hosiery,
Inc., 219 NLRB 338, 338 (1975). Circumstances considered in evaluating the tendency to
interfere include (1) the background, (2) the nature of the information sought, (3) the identity of 10
the questioner, and (4) the place and method of the interrogation. Sunnyvale Medical Clinic, 277
NLRB 1217, 1218 (1985); Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984).
I have credited Boroughs’ testimony that Verissimo asked him whether he had signed a
union card. However, I do not find the circumstances to be coercive. While Dougherty was not 15
an open union supporter, there were only 2 carpenters employed at the time. Dougherty and
Boroughs signed authorization cards for representation with Bristol and Sabino. The employees
were aware that the Union was filing a representation petition and that the employers would be
notified. Verissimo simply asked the question, in the workplace, not in the office or in a
conference room. There were no threats associated with the question, nor was it asked in a 20
hostile manner. Verissimo’s subsequent behavior cannot retroactively make the question he
asked earlier in the day coercive.
Enuha admitted asking Dougherty about signing a union card. I find that she also asked
about his reasons for contacting the Union. I have credited her testimony that she did not ask 25
Boroughs about the Union.
I find that the circumstances surrounding Enuha’s questioning of Dougherty were not
coercive. She was the owner of Bristol, but she and Dougherty testified that she treated him like
a son. Dougherty was not at all fearful or intimidated by Enuha; on the contrary, he seemed to 30
behave like a peer. Dougherty had not openly demonstrated support for the Union when Enuha
asked him these questions, but, as stated above, he was aware that Enuha would have been
advised of the representation petition. Further, although Enuha expressed her opinion that the
union would not be helpful to the employees, she was entitled to express that opinion, and it was
not a threat. Finally, the conversation occurred at the job site, not in an office or conference 35
room.
I find that Respondents, by Felicia Enuha and Valentine Verissimo, did not violate
Section 8(a)(1) when they asked employees about union activities.
40
This allegation is dismissed.
Did Respondents violate the Act when they terminated and laid off Dougherty and laid off
Boroughs on March 20, 2015?
45
The legal standard for evaluating whether a motive-based adverse employment action
violates Section 8(a)(3) and (1) of the Act is set forth in Wright Line, 251 NLRB 1083, 1089
JD-100-16
10
(1980), enfd. 662 F.2d 899 30 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See NLRB v.
Transportation Management Corp., 462 U.S. 393, 395 (1983) (approving the Wright Line
analysis). Under Wright Line, the elements generally required to support such a showing are
union or protected concerted activity by the employee, employer knowledge of that activity, and
animus on the part of the employer. Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065 5
(2007), enfd. 577 F.3d 467 (2d Cir. 2009).
If the General Counsel makes the required initial showing, then the burden shifts to the
employer to prove that it would have taken the same action even in the absence of the
employee’s union or protected activity. Consolidated Bus Transit, Inc., at 1066; Pro-Spec 10
Painting, 339 NLRB at 949; Williamette Industries, 341 NLRB 560, 563 (2004).
Both Dougherty and Boroughs had engaged in protected concerted activity, having
contacted the Union and signed authorization cards. Enuha was aware of that activity. Shelby
had advised Enuha of their February 25 meeting with the Union. Further, the Union’s 15
representation petition had been faxed by the Board to Enuha on March 11.
Enuha made some mild antiunion comments to Dougherty and Boroughs, to the effect
that the Union had nothing to offer the employees. While she is entitled to express her sentiments
against the Union, it does show that she had antiunion animus.20
Enuha then fired Dougherty for insubordination on March 19. On March 20, Enuha had
Shelby tell Boroughs he was being laid off for lack of work. Verissimo laid off Dougherty for
lack of work.
25
With these circumstances and the timing of the actions, the General Counsel has met his
burden.
I find that Respondent Bristol has established that it would have terminated Dougherty
absent his protected activity.30
Dougherty was fired for insubordination. I credit Enuha’s testimony regarding the
reports she had received from Shelby and Verissimo regarding Dougherty’s refusal to do drywall
work. I also credit her testimony that Dougherty repeated that refusal directly to her.
35
The timing of the action relative to the union activity must be noted. However,
Dougherty’s attitude clearly changed after he met with the Union, and seemed to worsen as the
date for the election neared. This is not unheard of, especially in a circumstance such as this,
where he knew the Union would win. Moreover, Enuha relied heavily on Dougherty’s expertise,
and he seemed to presume that he had more authority than he did. Toward the end of his 40
employment, Dougherty contradicted Enuha and refused to perform duties he was hired to do.
While Enuha valued Dougherty, she could not tolerate his attitude and insubordination. As to
Enuha’s motivation, it must be noted that no action was taken against Shelby, who had
volunteered to Enuha that the group had met with the Union.
45
I find that Respondents have not established that they would have laid off Dougherty or
Boroughs absent their protected activity.
JD-100-16
11
After Dougherty was fired by Bristol, he was laid off by Sabino, ostensibly for lack of
work. However, there was work that needed to be performed, of the same type that he had been
performing.
Boroughs was not fired. Shelby told Boroughs he was laid off when he reported to WHA 5
to work, as there was insufficient work for him to perform at that site. That was not true; there
was sufficient work for Boroughs to perform, of the same type he had been performing.
This allegation is dismissed as to the termination of Dougherty by Bristol.
10
I find that Respondents violated Section 8(a)(3) and (1) of the Act when they laid off
Dougherty and Boroughs on March 20.
Did Respondent Sabino violate the Act when it terminated Dougherty and Boroughs?
15
Both Dougherty and Boroughs had engaged in protected concerted activity, having
contacted the Union and signed authorization cards. Verissimo was aware of that activity.
Shelby had advised Enuha of their February 25 meeting with the Union. Because of their close
personal relationship, I believe Enuha advised Verissimo of that report. Further, the Union’s
representation petition had been faxed by the Board to Enuha on March 11. I believe that she 20
advised Verissimo of that petition, and the fact that a Board election would be held on March 20.
Verissimo demonstrated antiunion animus in his March 11 conversation with Boroughs. Both
employees had been out of work since March 20. After reporting to work on March 30, both
employees were immediately terminated by Verissimo.
25
Verissimo testified that he terminated Dougherty and Boroughs for failing to bring their
power tools to work. Without those tools, they were unable to access the site or do the dry wall
work he assigned them to perform. Dougherty and Boroughs testified that they had never
brought power tools to work before, either electric screwdrivers or drywall guns, but had always
used power tools provided by Bristol. Enuha testified that Bristol kept tools, including dry wall 30
guns, in a locked gang box at each job site. Those tools were stamped “Bristol.” I find that
Verissimo’s stated reason for the terminations is pretextual.
Verissimo called the police when he terminated Dougherty and Boroughs on March 30.
That action was based on Dougherty’s use of profanity. While that may have been inappropriate, 35
Verissimo did not provide justification for police involvement. I can only conclude that the
police were called due to the employees’ protected concerted activity.
I find, therefore, that the Respondent Sabino violated Section 8(a)(3) and (1) by
discharging Brian Dougherty and Thomas Boroughs and calling the police at the time of 40
discharge.
Conclusions of Law
1. Respondents, a single employer, violated Section 8(a)(3) and (1) of the Act by 45
laying off Brian Dougherty and Thomas Boroughs on March 20, 2015.
JD-100-16
12
2. Respondents, a single employer, violated Section 8(a)(3) and (1) of the Act by
discharging Brian Dougherty and Thomas Boroughs on March 30, 2015, and by calling the
police at the time of discharge because of their union activities.
5
3. Respondents, a single employer, did not otherwise violate the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 10
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
Issuance of a “Gissel” Bargaining Order
15
The Union petitioned the Board to represent a unit of full-time and regular part-time
carpenters. The uncontradicted evidence established that this is an appropriate bargaining unit.
Although the Respondents did not admit the unit was appropriate, they did not present any
evidence to show it was not. The Union found that Dougherty, Boroughs, and Shelby were
qualified carpenters. The record is not clear that Shelby, in fact, performed carpentry work for 20
either Respondent. However, the record establishes that there were no other carpenters working
for Respondents as of March 10, 2015. Felicia Enuha conceded that Dougherty was a carpenter
(Tr. 252), and, since she paid Boroughs the same wage rates as Dougherty for carpentry and
finishing work on the Cooke site, I conclude Boroughs was doing carpentry work as well.
Furthermore, Verissimo, when testifying before a Board agent under oath, stated that Dougherty 25
and Boroughs did carpentry and drywall work. (Tr. 301.)
Dougherty and Boroughs were Respondents’ only carpenters at the time, often working
side by side, and there is no evidence that their duties overlapped with any other of Respondents’
employees, or had any common interests with any other of Respondents’ employees. By March 30
11, 2015, when the Union demanded recognition, it had achieved majority status in that it had
signed authorization cards from both members of the bargaining unit.6
The U.S. Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 610 (1969)
identified two categories of employer misconduct that warrant the imposition of a bargaining 35
order. I will treat this as a “Category II” case. Those are cases in which the unfair labor
practices are less extraordinary and marked by less pervasive practices than “Category I” cases,
which nonetheless still have a tendency to undermine majority strength and impede the election
process.
40
In determining whether a remedial bargaining order is warranted in a “Category II” case,
the Board considers the seriousness of the employer’s unfair labor practices and their
pervasiveness, the size of the bargaining unit, the number of employees affected by the unfair
labor practices, the extent of the dissemination of those unfair labor practices and the position of

6 Or 3 of the 3 members of the Unit if Ralph Shelby was a unit member.
JD-100-16
13
the person(s) committing the unfair labor practices. See Novelis Corp., 364 NLRB No. 101
(August 26, 2016) and cases cited therein.
The facts in this case warrant a bargaining order. The unfair labor practices were about
as serious as they can get—discharge of the entire bargaining unit. The unfair labor practices 5
were committed by Respondents’ highest ranking officials. If an election were held at some
future date, it is likely that any employees other than Dougherty and Boroughs would be aware
that Respondent fired the entire unit soon after receiving a representation petition.7 Moreover,
Dougherty and Boroughs would reasonably fear that Respondents would find another pretext to
discharge them again. They would reasonably be less fearful if they had the Union as their 10
bargaining representative to intercede with Respondents. Thus, I find that reinstatement of
Dougherty and Boroughs and a notice posting would be insufficient to dispel the coercive
atmosphere that Respondents created.
The Respondents, having discriminatorily discharged employees, must offer them 15
reinstatement and make them whole for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
20
The Respondents shall compensate Brian Dougherty and Thomas Boroughs for search-
for-work and interim employment expenses regardless of whether those expenses exceed their
interim earnings. King Soopers, Inc., 364 NLRB No. 93 (2016). Search-for-work and interim
employment expenses shall be calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River 25
Medical Center, supra.
The Respondents shall compensate Brian Dougherty and Thomas Boroughs for the
adverse tax consequences, if any, of receiving lump sum backpay awards. Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014). In accordance with AdvoServ of New 30
Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent shall, within 21 days of the date the
amount of backpay is fixed either by agreement or Board order, file with the Regional Director
for Region 4 a report allocating backpay to the appropriate calendar year for each employee.
The Regional Director will then assume responsibility for transmission of the report to the Social
Security Administration at the appropriate time and in the appropriate manner.35
The Respondents shall bargain with the Charging Party Union as the exclusive bargaining
representative of its full-time and part-time carpenters.
On these findings of fact and conclusions of law and on the entire record, I issue the 40
following recommended 8

7 I would note, however, that the Board’s established practice is to evaluate the appropriateness of a
bargaining order at the time the unfair labor practices were committed. Novelis, supra, slip opinion at
page 6, n. 17.
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 purposes.
JD-100-16
14
ORDER
The Respondent, Bristol Industrial Corporation and C.O. Sabino Corporation, a single
employer, its officers, agents, successors, and assigns, shall
5
1. Cease and desist from
(a) Discharging or otherwise discriminating against employees for supporting the
Union or any other labor organization or for engaging in other protected concerted activities.
10
(b) Refusing to recognize and bargain with the Union as the exclusive collective
bargaining representative of all its full-time and regular part-time carpenters.
(c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.15
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Recognize and, on request, bargain with the Union as the exclusive collective20
bargaining representative, retroactive to March 10, 2015, of all its full-time and regular part-time
carpenters.
(b) Within 14 days from the date of the Board’s Order, offer Brian Dougherty and
Thomas Boroughs full reinstatement to their former jobs or, if those jobs no longer exist, to25
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(c) Make Brian Dougherty and Thomas Boroughs whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them, in the manner set forth in30
the remedy section of the decision.
(d) Make Brian Dougherty and Thomas Boroughs whole for any search-for-work and
interim employment expenses suffered as a result of the discrimination against them in the
manner set forth in the remedy section of this decision.35
(e) Compensate Brian Dougherty and Thomas Boroughs for the adverse tax
consequences, if any, of receiving a lump sum backpay award and file with the Regional
Director for Region 4, within 21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay award to the appropriate calendar year.40
(f) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges and within 3 days thereafter notify Brian Dougherty and
Thomas Boroughs in writing that this has been done and that the discharge will not be used
against them in any way.45
JD-100-16
15
(g) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.5
(h) Within 14 days after service by the Region, post at its New Castle, Delaware, and
Philadelphia, Pennsylvania facilities copies of the attached notice marked “Appendix.”9 Copies
of the notice, on forms provided by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 10
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not 15
altered, defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
March 19, 2015.20
(i) Within 21 days after service by the Region, file with the Regional Director for
Region 4 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
25
Dated, Washington, D.C. December 2, 2016
Susan A. Flynn30
Administrative Law Judge

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 National 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.”
J.,..., 91 41-)--
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
Northeast Regional Council of Carpenters or any other union or for engaging in protected
concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of the rights listed above.
WE WILL, within 14 days from the date of this Order, offer Brian Dougherty and Thomas
Boroughs full reinstatement to their former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Brian Dougherty and Thomas Boroughs whole for any loss of earnings, search-
for-work and interim employment expenses and other benefits resulting from their discharges,
plus interest compounded daily.
WE WILL compensate Brian Dougherty and Thomas Boroughs for the adverse tax
consequences, if any, of receiving one or more lump-sum backpay awards covering periods
longer than 1 year.
WE WILL, within 21 days of the date the amount of backpay is fixed, file a report with the
Regional Director for Region 4 allocating the backpay award to the appropriate calendar year.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharges of Brian Dougherty and Thomas Boroughs, and WE WILL, within 3
days thereafter, notify them in writing that this has been done and that the discharges will not be
used against them in any way.
BRISTOL INDUSTRIAL CORPORATION
And C.O. SABINO CORPORATION
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov
615 Chestnut Street, 7th Floor, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CA-148573
or by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (215) 597-5354.