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

National Labor Relations Board - Board Decisions

Jun 7, 2018

366 NLRB No. 101 (N.L.R.B. 2018)

366 NLRB No. 101
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Bristol Industrial Corporation and C.O. Sabino Cor-
poration (single and joint employers) and Met-
ropolitan Regional Council of Carpenters, Unit-
ed Brotherhood of Carpenters and Joiners of
America, Southeastern Pennsylvania, State of
Delaware and Eastern Shore of Maryland. Case
04–CA–148573 and 04–CA–153165
June 7, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On December 2, 2016, Administrative Law Judge Su-
san A. Flynn issued the attached decision. The Respond-
ents filed exceptions. The General Counsel filed cross-
exceptions, a supporting brief, and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.1
We agree with the judge, for the reasons she states,
that the Respondents are a single employer, and that the
Respondents violated Section 8(a)(3) and (1) of the Act
by laying off employee Brian Dougherty on March 19,
2015, laying off employee Thomas Boroughs on March
20, 2015, and discharging Dougherty and Boroughs on
March 30, 2015. We also agree with the judge that the
Respondents violated Section 8(a)(1) of the Act by sum-
moning the police on March 30, 2015.2 However, for the

1 We have amended the judge's conclusions of law to conform to
her unfair labor practice findings and consistent with our findings here-
in. We shall modify the judge's recommended Order to conform to the
amended conclusions of law and to the Board's standard remedial lan-
guage. We shall also substitute a new notice to conform to the Order as
modified. The Order and notice reflect the fact that, as noted by the
judge, Charging Party Metropolitan Regional Council of Carpenters has
been dissolved and merged into the Northeast Regional Council of
Carpenters.
No exceptions were filed to the judge’s finding that the Union de-
manded recognition on March 11, 2015. We correct the judge’s inad-
vertent reference in the recommended Order to “March 10, 2015,”
rather than “March 11, 2015,” as the date on which the Respondents
shall retroactively recognize the Union as the unit’s exclusive collec-
tive-bargaining representative.
2 The judge found that the Respondents violated the Act by sum-
moning the police on March 30 without justification during the pre-
textual discharge of Dougherty and Boroughs. On exception, the Re-
spondents argue that the summoning of police was warranted because
Dougherty was cursing. The judge found that while Dougherty’s use of
profanity may have been inappropriate, it did not justify police in-
volvement. We agree with the judge that the Respondents’ conduct
reasons discussed below, we additionally find, contrary
to the judge, that the Respondents violated Section
8(a)(1) of the Act by interrogating Boroughs on March
11, 2015.
I. THE INTERROGATION
On February 25, 2015, Boroughs and Dougherty
signed cards authorizing the Union to represent them in
dealing with both Respondent Bristol and Respondent

violates Sec. 8(a)(1) of the Act. See W.T. Grant Co., 195 NLRB 1000,
1008 (1972) (unwarranted summoning of police to evict a discharged
union supporter was calculated to discourage employees in their pursuit
of unionization). We find it unnecessary to pass on the judge’s finding
that the summoning of police on March 30 also violated Sec. 8(a)(3), as
the additional finding would not affect the remedy.
Although the complaint does not specifically allege that the sum-
moning of police on March 30 was unlawful, “[i]t is well settled that
the Board may find and remedy a violation even in the absence of a
specified allegation in the complaint if the issue is closely connected to
the subject matter of the complaint and has been fully litigated.” Per-
gament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130
(2d Cir. 1990). We find that both prongs of Pergament are satisfied
here. First, it is clear that the Respondents’ summoning of police on
March 30 is closely related to the subject matter of the complaint. The
police were summoned in response to the circumstances surrounding
the discharges of Dougherty and Boroughs. Not only did the complaint
allege that those discharges independently violated the Act, but it also
alleged that the near-identical conduct of summoning police in response
to Dougherty’s March 20 discharge was unlawful. Second, the issue
was fully litigated. The General Counsel put on testimony about the
March 30 incident and the Respondents did not object to the testimony.
Rather, the Respondents cross-examined the General Counsel’s wit-
nesses and questioned their own witnesses regarding the summoning of
police on March 30. Finally, the Respondents do not claim they would
have presented any additional evidence or argued the case differently
had the complaint alleged summoning the police on March 30.
Contrary to his colleagues, Member Emanuel would find that the
Respondents lawfully summoned the police. He recognizes that
Dougherty had just been unlawfully discharged, but the police were
called because Dougherty became hostile, got “in [the] face” of
Sabino’s owner, Val Verissimo, and spoke to Verissimo and Sabino’s
foreman, Ralph Shelby, in a profane and insulting manner. Because of
Dougherty’s aggressive behavior, Verissimo told Shelby to contact the
Wilmington Housing Authority, and the Authority directed Verissimo
to call the police. The burden was on the General Counsel to prove that
the Respondents violated the Act by calling the police. See Nations
Rent, Inc., 342 NLRB 179, 179 (2004) (“The General Counsel has the
burden of proving every element of a claimed violation of the Act.”).
The General Counsel introduced no evidence that Dougherty was en-
gaged in Sec. 7 activity when the police were called. Moreover, even
when employees are engaged in Sec. 7 activity, an employer may law-
fully call the police if it is motivated by some reasonable concern. Id.
at 181. The General Counsel did not introduce evidence that the police
were called in an attempt to harass Dougherty or discourage protected
activity. Rather, the facts show that the police were called in response
to Dougherty’s aggressive behavior. Accordingly, the majority’s reli-
ance on W.T. Grant Co., 195 NLRB 1000 (1972), is misplaced. Under
these circumstances, Member Emanuel does not believe that the Board
should substitute its judgment as to the severity of Dougherty’s conduct
for that of Verissimo, who was there on the scene. For these reasons,
Member Emanuel would find that the Respondents did not violate the
Act when they summoned the police on March 30, 2015.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Sabino. The Union filed an election petition with the
Board seeking to represent a unit of carpenters. An em-
ployee informed the owner of Bristol, Felicia Enuha, that
Boroughs and Dougherty had signed union authorization
cards. On March 11, Enuha received a notice that the
Union had filed the election petition with the Board and
that an election would be held. Enuha told the owner of
Sabino, Valentine Verissimo, what she had heard about
Boroughs and Dougherty signing the authorization cards
and about the election petition. On March 11, Verissimo
approached Boroughs at the worksite and asked if he had
signed a union card, which Boroughs denied. Verissimo
later told Boroughs, “I don’t want no fucking union on
my job site . . . I don’t want a union here.”
In determining the lawfulness of an interrogation the
Board evaluates whether, under the totality of the cir-
cumstances, it reasonably tended to restrain, coerce, or
interfere with the employees’ exercise of their protected
rights under the Act. Rossmore House, 269 NLRB 1176,
1178 fn. 20 (1984), enfd. sub nom. HERE Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). This inquiry in-
volves a case-by-case analysis of various factors, includ-
ing (1) the background, i.e., whether the employer has a
history of hostility toward or discrimination against un-
ion activity, (2) the nature of the information sought, (3)
the identity of the interrogator, (4) the place and method
of the interrogation; and (5) the truthfulness of the inter-
rogated employee's reply. See Bourne v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964). The Board also considers
whether or not the interrogated employee is an open and
active union supporter. See, e.g., Southern Bakeries,
LLC, 364 NLRB No. 64, slip op. at 7 (2016), enfd. in
relevant part 871 F.3d 811 (8th Cir. 2017). These factors
“are not to be mechanically applied”; they represent
“some areas of inquiry” for consideration in evaluating
an interrogation's legality. Rossmore House, 269 NLRB
at 1178 fn. 20. Applying the Rossmore House standard,
we find that Verissimo’s questioning of Boroughs was an
unlawful interrogation. While there is no evidence of
antiunion hostility or discrimination at the time of the
interrogation,3 the remaining factors all support finding a
violation. Verissimo, the sole owner of Sabino and its
highest ranking company official, directly asked Bor-
oughs if he had signed a union authorization card. The
interrogation occurred at the worksite, which added to its
coercive tendency in the specific circumstances of this
case. Absent evidence that Verissimo had an office or
other formal locus of authority, the worksite was the
source of his supervisory authority, and Verissimo used

3 Verissimo’s statement of antiunion hostility that “I don’t want no
fucking union on my job site . . . I don’t want a union here,” was made
after he asked Boroughs if he signed a union card.
his authority at that worksite to probe Boroughs’ union
activities without offering any legitimate explanation for
the questioning. The Board has found interrogations
unlawful under similar circumstances. See, e.g., Camaco
Lorain Mfg. Plant, 356 NLRB 1182, 1183 (2011) (find-
ing unlawful an interrogation on the production floor of a
manufacturing plant). Moreover, Boroughs was not an
open union supporter and, when questioned, he provided
an untruthful response. See Sproule Construction Co.,
350 NLRB 774, 774 fn. 2 (2007) (employee attempts to
conceal union support weigh in favor of finding an inter-
rogation unlawful); Grass Valley Grocery Outlet, 338
NLRB 877, 877 fn. 1 (2003) (same), enfd. mem. 121
Fed. Appx. 720 (9th Cir. 2005). And, finally, Verissimo
made anti-union statements to, and personally discrimi-
nated against, Boroughs on the basis of his union mem-
bership soon after asking him whether he had signed a
union card. See Santa Fe Tortilla Co., 360 NLRB 1139,
1140 fn. 8 (2014) (“The Board has recognized that a sub-
sequent unfair labor practice can increase the coercive-
ness of a preceding interrogation….”); cf. Temp Masters,
Inc., 344 NLRB 1188, 1188 (2005), enfd. 460 F.3d 684
(6th Cir. 2006) (citing John W. Hancock, Jr., Inc., 337
NLRB 1223, 1224 fn. 5 (2002), enfd. 73 Fed. Appx. 617
(4th Cir. 2003)) (recognizing that post-interrogation un-
fair labor practices may be relevant to coerciveness of
interrogation, depending on their relationship to the inter-
rogation).
The judge dismissed the unlawful interrogation allega-
tion based, in part, on the fact the unit contained only
two employees, both of whom signed authorization cards
and who were aware that the Respondents would be noti-
fied of the election petition. Contrary to the judge, we
view these facts as supporting our finding of an unlawful
interrogation. Boroughs constituted one-half of the unit.
Verissimo asked him directly if he had signed an author-
ization card immediately after the Respondents received
notice that the Union had filed an election petition, and
Boroughs falsely stated that he had not. These facts
heightened the accusatory tone of the questioning and
further demonstrate the coercive nature of the interroga-
tion. For these reasons, we find that the Respondents
violated Section 8(a)(1) of the Act by coercively interro-
gating Boroughs about his union activity.4
II. THE BARGAINING ORDER
Having found that the Respondents violated the Act
by, among other things, unlawfully terminating the entire
bargaining unit (the two carpenters, Dougherty and Bor-

4 We find it unnecessary to pass on whether Felicia Enuha violated
Sec. 8(a)(1) of the Act by interrogating employee Brian Dougherty, as
any such finding would be cumulative and would not affect the remedy.
BRISTOL INDUSTRIAL CORP. AND C.O. SABINO CORP. 3
oughs) after an election petition had been filed, the judge
found that the Board’s traditional remedies were insuffi-
cient to erase the coercive effects of the Respondents’
conduct, and that a bargaining order was therefore neces-
sary. We agree.
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
the Supreme Court identified two categories of employer
misconduct that warrant imposition of a bargaining or-
der. Category I cases are “exceptional” and “marked by
‘outrageous' and “pervasive unfair labor practices.” Id.
at 613. Category II cases are “less extraordinary” and
“marked by less pervasive practices which nonetheless
still have the tendency to undermine majority strength
and impede the election processes.” Id. at 614. In cate-
gory II cases, the “possibility of erasing the effects of
past practices and of ensuring a fair election . . . by the
use of traditional remedies, though present, is slight and .
. . employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order[.]” Id. at 614-615. Accord California Gas
Transport, Inc., 347 NLRB 1314, 1323 (2006), enfd. 507
F.3d 847 (5th Cir. 2007).
In determining that a bargaining order was appropriate,
the judge properly considered the seriousness of the vio-
lations and their pervasiveness, the size of the unit, the
number of affected employees, the extent of dissemina-
tion, and the position of the persons committing the vio-
lations. We agree with the judge that the Respondents’
conduct is well within the bounds of what the Board has
found to warrant a category II Gissel order. We empha-
size, in addition, that the Respondents committed a
“hallmark” violation by discharging the entire bargaining
unit because of the employees’ union activity, the coer-
cive effects of which tend to “destroy election condi-
tions, and . . . persist for longer periods of time than other
unfair labor practices.” Evergreen America Corp., 348
NLRB 178, 180 (2006), enfd. 531 F.3d 321 (4th Cir.
2008), citing NLRB v. Gissel Packing Co., 395 U.S. at
611 fn. 31. The discharge of an employee because of
union activity “is one of the most flagrant means by
which an employer can hope to dissuade employees from
selecting a bargaining representative because no event
can have more crippling consequences to the exercise of
Section 7 rights than the loss of work.” Center Service
System Division, 345 NLRB 729, 750 (2005), quoting
Mid-East Consolidation Warehouse, 247 NLRB 552, 560
(1980). Here, the Respondents unlawfully laid off or
fired Boroughs and Dougherty because of their union
activity not just once, but twice. A bargaining order is
particularly appropriate where, as here, an employer has
“reacted to the first hint of a union campaign by termi-
nating the entire bargaining unit.” Intersweet, Inc., 321
NLRB 1, 1 (1996), enfd. 125 F.3d 1064 (7th Cir. 1997).
Indeed, we would grant the bargaining order on this basis
alone, even without considering the other violations
found. But here, the lasting effect of the Respondents’
unfair labor practices is further accentuated by the Re-
spondents’ summoning of police in response to protected
activity, and by the unlawful interrogation of an employ-
ee by a high-ranking official in a unit that was very
small. See Hogan Transports, Inc., 363 NLRB No. 196,
slip op. at 6–7 (2016).
In evaluating the appropriateness of a Gissel order, we
have considered the inadequacy of the Board's traditional
remedies in this case. Given the severity and long lasting
effects of the violations, the possibility of erasing the
effects of the Respondents’ unfair labor practices and of
ensuring a fair election by the use of traditional remedies
is slight. This is particularly true because the Respond-
ents unlawfully laid off the employees, rehired them, and
then immediately and unlawfully discharged them again.
The Respondents’ conduct sends a clear message to cur-
rent and future employees that union support will be met
with immediate and severe punishment to the entire unit.
Further, the circumstances here demonstrate that even if
employees are reinstated, the Respondents are willing to
manufacture a pretextual reason to subsequently dis-
charge them in retaliation for their protected activity.
Merely requiring the Respondents to refrain from unlaw-
ful conduct in the future, to reinstate the employees with
backpay, and to post a notice would not, in our view, be
sufficient to dispel the coercive atmosphere that these
Respondents have created.
We have also duly considered the Section 7 rights of
all employees involved. As the Board has stated previ-
ously, “the Gissel opinion itself reflects a careful balanc-
ing of the employees' Section 7 rights ‘to bargain collec-
tively’ and ‘to refrain from’ such activity.” Mercedes
Benz of Orland Park, 333 NLRB 1017, 1019 (2001),
enfd. 309 F.3d 452 (7th Cir. 2002). The rights of the
Respondents’ employees favoring unionization—here,
the entire bargaining unit since both unit employees
signed authorization cards supporting Union representa-
tion—are protected by the bargaining order. At the same
time, the Section 7 rights of employees who may oppose
representation by the Union are safeguarded by their ac-
cess to the Board’s decertification procedure under Sec-
tion 9(c)(1) of the Act, following a reasonable period of
time to allow the collective-bargaining relationship a fair
chance of success. Id. The duration of the order is no
longer than is reasonably necessary to remedy the ill ef-
fects of the violations. It is only by requiring the Re-
spondents to bargain with the Union for a reasonable
period of time that the employees will be able to fairly
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
assess the Union’s effectiveness as a bargaining repre-
sentative in an atmosphere free of the Respondent’s un-
lawful conduct. The employees can then determine
whether continued representation by the Union is in their
best interest.
An affirmative bargaining order also serves the poli-
cies of the Act by fostering meaningful collective bar-
gaining and industrial peace. The Respondents’ state-
ments and actions have made their disdain for union rep-
resentation clear. A bargaining order removes the incen-
tive to unlawfully discharge employees in the hope of
discouraging support for the Union. Further, a bargain-
ing order ensures that employees, who may be under-
standably fearful of the Respondents’ wrath should their
union support be discovered, have the Union as their
bargaining representative to intercede with the Respond-
ents.
For all of these reasons, we agree with the judge that a
Gissel order is warranted.5

5 Our dissenting colleague asserts that a bargaining order is inap-
propriate because the employees “were not at all reluctant to assert their
rights” and because we have not considered the appropriateness of a
bargaining order at the time of issuance. We disagree. First, there is
evidence that the employees were reluctant to assert their rights. Bor-
oughs denied having signed an authorization card when interrogated by
Verissimo. Second, the Board’s established practice is to evaluate the
appropriateness of a bargaining order as of the time the unfair labor
practices were committed. See State Materials, Inc., 328 NLRB 1317,
1317–1318 (1999). Moreover, on exception, the Respondents do not
argue or provide any evidence that any relevant changes have occurred
since their commission of the unfair labor practices.
Member Emanuel disagrees that a Gissel affirmative bargaining or-
der is warranted here. An affirmative bargaining order is an extraordi-
nary remedy. See, e.g., Lee Lumber & Building Material Corp. v.
NLRB, 117 F.3d 1454, 1461 (D.C. Cir. 1997). To support such a reme-
dy, it must be demonstrated that the Board’s traditional remedies would
not erase the effects of the unfair labor practices so as to ensure a fair
election. See, e.g., Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166,
1170 (D.C. Cir. 1998). Contrary to the majority, there is no evidence
that traditional remedies would be ineffective here. The bargaining unit
is comprised of just two employees, Dougherty and Boroughs. Both
were strong union supporters and not at all reluctant to assert their
rights. The fact that Boroughs denied signing an authorization card
when publicly asked does not indicate that he had withdrawn his union
support or would be unwilling to vote in favor of unionization. There is
no reason to believe that they would not continue to support union
representation once they are reinstated and made whole. Further, the
D.C. Circuit has repeatedly stressed that the Board “must consider the
appropriateness of a bargaining order at the time the order is issued.”
Cogburn Health Center, Inc. v. NLRB, 437 F.3d 1266, 1273 (D.C. Cir.
2006) (emphasis in original) (citing Charlotte Amphitheater Corp. v.
NLRB, 82 F.3d 1074, 1079 (D.C. Cir. 1996); Avecor, Inc. v. NLRB, 931
F.2d 924, 937 (D.C. Cir. 1991)). The majority has not done so here.
For these reasons, Member Emanuel would not issue a Gissel bargain-
ing order in the instant case.
AMENDED CONCLUSIONS OF LAW
1. Respondents Bristol Industrial Corporation and
C.O. Sabino Corporation are single employers within the
meaning of the Act.
2. Respondents violated Section 8(a)(3) and (1) of the
Act by laying off Brian Dougherty on March 19 and dis-
charging him on March 30, 2015.
3. Respondents violated Section 8(a)(3) and (1) of the
Act by laying off Thomas Boroughs on March 20 and
discharging him on March 30, 2015.
4. Respondents violated Section 8(a)(1) of the Act by
calling the police on March 30 in response to employees’
protected conduct.
5. Respondents violated Section 8(a)(1) of the Act by
interrogating employee Thomas Boroughs about his un-
ion membership or support.
6. Respondents did not otherwise violate the Act.
ORDER
The National Labor Relations Board orders that the
Respondents, Bristol Industrial Corporation, New Castle,
Delaware, and C.O. Sabino Corporation, Philadelphia,
Pennsylvania, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Laying off, discharging or otherwise discriminat-
ing against employees for supporting the Northeast Re-
gional Council of Carpenters (the Union) or any other
labor organization or for engaging in other protected
concerted activities.
(b) Summoning the police to their facilities in re-
sponse to employees’ protected concerted or union activ-
ities.
(c) Interrogating employees about their union mem-
bership or support.
(d) Refusing to recognize and bargain with the Union
as the exclusive collective bargaining representative of
all their full-time and regular part-time carpenters.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order,
offer Brian Dougherty and Thomas Boroughs full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
BRISTOL INDUSTRIAL CORP. AND C.O. SABINO CORP. 5
(b) 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 in the remedy section of the judge’s
decision.
(c) Compensate Brian Dougherty and Thomas Bor-
oughs for the adverse tax consequences, if any, of receiv-
ing lump sum backpay awards 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 years for each employee.
(d) Within 14 days from the date of this Order, re-
move from their files any reference to the unlawful
layoffs and discharges, and within 3 days thereafter, noti-
fy Brian Dougherty and Thomas Boroughs in writing that
this has been done and that the layoffs and discharges
will not be used against them in any way.
(e) Recognize and, on request, bargain with the Un-
ion, retroactive to March 11, 2015, as the exclusive col-
lective-bargaining representative of employees in the
above-described unit.
(f) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
their New Castle, Delaware and Philadelphia, Pennsyl-
vania facilities copies of the attached notice marked
“Appendix.”6 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being signed by
the Respondents’ authorized representatives, shall be
posted by the Respondents and maintained for 60 con-
secutive 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, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondents customarily communi-
cate with their employees by such means. Reasonable
steps shall be taken by the Respondents to ensure that the
notices are not altered, defaced, or covered by any other

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
material. If the Respondents have gone out of business
or closed the facility involved in these proceedings, the
Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondents at any
time since March 11, 2015.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondents have
taken to comply.
Dated, Washington, D.C. June 7, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT lay off, discharge, or otherwise discrim-
inate against you for supporting the Northeast Regional
Council of Carpenters (the Union) or any other union or
for engaging in protected concerted activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
WE WILL NOT summon the police in response to your
engaging in protected activities.
WE WILL NOT interrogate you about your union mem-
bership or support.
WE WILL NOT fail and refuse to recognize and bargain
in good faith with the Union as the exclusive collective-
bargaining representative of all our full-time and regular
part-time carpenters.
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 the Board’s
Order, offer Brian Dougherty and Thomas Boroughs full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make Brian Dougherty and Thomas Bor-
oughs whole for any loss of earnings and other benefits
resulting from their discharges, less any net interim earn-
ings, plus interest, and WE WILL also make such employ-
ees whole for reasonable search-for-work and interim
employment expenses, plus interest.
WE WILL compensate Brian Dougherty and Thomas
Boroughs for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL 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 back-
pay awards to the appropriate calendar years for each
employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs and discharges of Brian Dougherty and Thom-
as Boroughs, and WE WILL, within 3 days thereafter, noti-
fy each of them in writing that this has been done and
that the layoffs and discharges will not be used against
them in any way.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative, retroac-
tive to March 11, 2015, of our employees in the above-
described appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement.
BRISTOL INDUSTRIAL CORPORATION AND C.O.
SABINO CORPORATION
The Board’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.
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 Exhs. 2, 17.)
The Respondents admit the changes in union organization (par-
agraph 4) but continue to 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 La-
bor Relations Act (the Act) when they interrogated employees
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 de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondents, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent Bristol Industrial Corporation (Bristol), a Dela-
ware 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 Del-
aware in the 12 months prior to February 2016.
Respondent C.O. Sabino Corporation (Sabino), a Delaware
corporation, is a general contractor with an office in Philadel-
phia, Pennsylvania. It performed services valued in excess of

1 All dates are 2015 unless otherwise indicated.
2 On February 3, 2016, the Metropolitan Regional Council of Car-
penters was dissolved and merged into the Northeast Regional Council
of Carpenters.
BRISTOL INDUSTRIAL CORP. AND C.O. SABINO CORP. 7
$50,000 for entities outside the Commonwealth of Pennsylva-
nia in the 12 months prior to February 2016.
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 the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
Bristol is owned solely by Felicia Enuha, who is its sole of-
ficer. Sabino is owned solely by Valentine Verissimo, who is
its sole officer. Enuha and Verissimo had a longstanding per-
sonal relationship. Although they were never married, they
had, in the past, lived together and had five children together.
At the relevant time, Bristol had a contract to perform con-
struction 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 subcon-
tracted with 4 or 5 companies. They did not submit bids to Bris-
tol, just estimates. One of the subcontractors Bristol used was
Sabino. Enuha and Tom Berrian, then her senior project man-
ager/estimator, decided the appropriate monthly price for the
job. They orally offered Sabino that monthly rate, and Verissi-
mo 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 Exhs.
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 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, oversee-
ing the project onsite. Sabino served as Project Manager at
Cooke; that job was supervised initially by Joe Yack.
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 recommended Bri-
an Dougherty, a carpenter with whom he had worked previous-
ly and who he felt was a good worker. Dougherty was sched-
uled for an interview; he brought a coworker, Thomas Bor-
oughs, 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 ad-
vised Boroughs that she had 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 car-

3 Bristol paid for the gas, repairs, and insurance.
penters (over 20) on and off, as needed, on the projects.
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.
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 and
Glenn Hayward. The arrangement was very informal with
Sabino, as with other companies. Neither Dougherty nor Bor-
oughs completed applications for Sabino. Bristol provided
Sabino with Dougherty’s and Boroughs’ tax withholding forms.
The employees received paychecks from both companies. (GC
Exhs. 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 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 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 Exhs. 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–
150.)
Boroughs worked at WHA at the rate of $18.75 per hour dur-
ing pay period December 20—26, 2014. That was at least $5
per hour less than the standard rate for carpenters at that site.
(Tr. 263–264.) 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 $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.
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 addi-
tional responsibilities, including reviewing potential bids and
obtaining new employees through Craigslist. (GC Exh. 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Employees’ Union Contact
Dougherty called Sam Noel at Local 626. Dougherty, Bor-
oughs, 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 represent them in dealing with
both Bristol and Sabino. (GC Exhs. 18, 19.)
Shelby went to Enuha sometime after that, and told her that
Dougherty had contacted the Union, and that he had accompa-
nied Dougherty, and Boroughs to a meeting with the Union
when he felt his job was threatened.
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.
Interrogations about union activities
According to Boroughs, on the morning of March 11, Veris-
simo asked him if he had signed a union card. (Tr. 225–226.)
Boroughs said that later, Verissimo said “I don’t want no fuck-
ing union on my job site,” and “I don’t want a union here.”
Verissimo did not specifically 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 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 with another subcontractor, Pra-
do. She testified that, on her way, she received a call from An-
drew 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 any-
more. She left 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 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 differ-
ent. He testified that Enuha asked him if he knew anything
about “this union thing.” She said “someone’s been speaking
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–
162.) 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 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 discus-
sion, 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 Union did not have anything to offer the
employees. (Tr. 226–227.)
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. How-
ever, her purpose at the WHA site that day was to address defi-
ciencies with the work that had been 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 responsibili-
ties 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 projects. It was Dougherty’s
statement regarding “being covered” that prompted her ques-
tion 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
Dougherty, given his statement about “being covered.” She had
little discussion with Boroughs at that time, and had no reason
to ask him.
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 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 im-
portant 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. She said she would come to the site to talk
to him about this later. When she arrived, Dougherty had al-
ready gone for the day. Enuha returned to her office; she decid-
ed 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 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
BRISTOL INDUSTRIAL CORP. AND C.O. SABINO CORP. 9
last two occasions (3-12-15 at the WHA site and 3-18-15 at
the Cooke site) when 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.
(GC Exh. 27.)
Enuha and Dougherty had no further contact after that date.
Dougherty noticed that the paycheck enclosed with his ter-
mination letter was incorrect. 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 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 arrive with his paycheck.
The police did not charge Dougherty with any offense.
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.
The first unfair labor practice charge was mailed to the Re-
spondents on March 20, 2015.
On March 27, Verissimo asked both Dougherty and Bor-
oughs to return to work. They were unavailable immediately,
but reported to the WHA site on March 30. Verissimo then
fired 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.
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. 274–277.) 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 regarding the power
tools and I find that they had previously used power tools pro-

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 aban-
doned by the General Counsel.
vided by Bristol, not their own. Further, if, as Verissimo testi-
fied, 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.
Analysis
Are the Respondents a Single Employer?
The Board has found that two nominally separate entities
constitute a “single employer” 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 com-
panies to be a “single employer” is that both are jointly and
severally liable for the unfair practices committed and are re-
sponsible for remedying them.
In determining whether or not there is an arm’s length rela-
tionship, 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 Super-
market, Inc., 284 NLRB 302, 304 (1987), enfd. 872 F.2d 1279,
1288–1289 (7th Cir. 1989).5
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 com-
mon 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
Sabino. Rather, companies submitted estimates to Bristol.
Additionally, Verissimo was free to use either of the work ve-
hicles owned by Bristol. However, those vehicles were availa-
ble to all subcontractors. Bristol loaned employees to subcon-
tractors, including Sabino. That was a routine practice for
Enuha, not just with Sabino. Therefore, I find these points im-
material. Nonetheless, due to the long term friendship between
Enuha and Verissimo, the parties’ professional relationship was
very casual and thus problematic.
Factor (1): The operations of Bristol and Sabino were inter-
related, 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 employees, they were loaned to
Sabino without their knowledge. Both started their jobs as
Sabino employees at the WHA site, without having been inter-
viewed or selected by Verissimo. Although Enuha testified that
she hired Dougherty for Cooke as WHA had already been sub-
contracted 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

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
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 staff-
ing or supervising the job, though Sabino was project manager,
other than minimal action on March 19 and the incidents relat-
ed to March 30. The record shows 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
Exhs. 23, 24, 25, 26.)
Factor (2): Enuha substantially managed Sabino, as well as
Bristol. The only 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, substan-
tially controlled the labor 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.
Factor (4): There is no common ownership of Bristol and
Sabino. However, given the lack of arm’s-length dealings be-
tween 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 consid-
er the absence of a marriage license determinative of whether
two companies were alter-egos. I find that Bristol and Sabino
are a single employer even in the absence of common owner-
ship.
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?
The test for determining whether questioning of an employee
violates Section 8(a)(1) of the Act is whether it would reasona-
bly tend to coerce employees in the exercise of their Section 7
rights. Grand Canyon University, 362 NLRB No. 13 slip op. at
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 in-
formation sought, (3) the identity of 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 an open union supporter, there were only 2 carpenters em-
ployed at the time. Dougherty and Boroughs signed authoriza-
tion cards for representation with Bristol and Sabino. The em-
ployees 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 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
Boroughs about the Union.
I find that the circumstances surrounding Enuha’s question-
ing of Dougherty were not coercive. She was the owner of Bris-
tol, 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 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 representa-
tion 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 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.
This allegation is dismissed.
Did Respondents violate the Act when they terminated and laid
off Dougherty and laid off Boroughs on March 20, 2015?
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
(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 (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 employ-
ee’s union or protected activity. Consolidated Bus Transit, Inc.,
at 1066; Pro-Spec 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 au-
thorization cards. Enuha was aware of that activity. Shelby had
advised Enuha of their February 25 meeting with the Union.
Further, the Union’s 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
BRISTOL INDUSTRIAL CORP. AND C.O. SABINO CORP. 11
against the Union, it does show that she had antiunion animus.
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.
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.
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.
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 circum-
stance 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 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.
I find that Respondents have not established that they would
have laid off Dougherty or Boroughs absent their protected
activity.
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 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.
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?
Both Dougherty and Boroughs had engaged in protected
concerted activity, having contacted the Union and signed au-
thorization cards. Verissimo was aware of that activity. Shelby
had advised Enuha of their February 25 meeting with the Un-
ion. 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 advised Verissimo of that peti-
tion, 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.
Verissimo testified that he terminated Dougherty and Bor-
oughs 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 Bor-
oughs 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 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 inap-
propriate, 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 discharge.
CONCLUSIONS OF LAW
1. Respondents, a single employer, violated Section 8(a)(3)
and (1) of the Act by laying off Brian Dougherty and Thomas
Boroughs on March 20, 2015.
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.
3. Respondents, a single employer, did not otherwise violate
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall 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
The Union petitioned the Board to represent a unit of full-
time and regular part-time carpenters. The uncontradicted evi-
dence established that this is an appropriate bargaining unit.
Although the Respondents did not admit the unit was appropri-
ate, they did not present any evidence to show it was not. The
Union found that Dougherty, Boroughs, and Shelby were quali-
fied carpenters. The record is not clear that Shelby, in fact,
performed carpentry work for 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 and Boroughs did carpentry and drywall work. (Tr.
301.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
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 11, 2015, when the Union
demanded recognition, it had achieved majority status in that it
had signed authorization cards from both members of the bar-
gaining 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 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 none-
theless still have a tendency to undermine majority strength and
impede the election process.
In determining whether a remedial bargaining order is war-
ranted in a “Category II” case, the Board considers the serious-
ness of the employer’s unfair labor practices and their perva-
siveness, the size of the bargaining unit, the number of employ-
ees affected by the unfair labor practices, the extent of the dis-
semination of those unfair labor practices and the position of
the person(s) committing the unfair labor practices. See Novelis
Corp., 364 NLRB No. 101, slip op. at 1 (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 prac-
tices were committed by Respondents’ highest ranking offi-
cials. 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 receiv-
ing a representation petition.7 Moreover, Dougherty and Bor-
oughs would reasonably fear that Respondents would find an-
other pretext to discharge them again. They would reasonably
be less fearful if they had the Union as their bargaining repre-
sentative to intercede with Respondents. Thus, I find that rein-
statement of Dougherty and Boroughs and a notice posting
would be insufficient to dispel the coercive atmosphere that
Respondents created.
The Respondents, having discriminatorily discharged em-
ployees, must offer them 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 Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
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

6 Or 3 of the 3 members of the Unit if Ralph Shelby was a unit
member.
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.
(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, com-
pounded daily as prescribed in Kentucky River 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 accord-
ance with AdvoServ of New 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.
The Respondents shall bargain with the Charging Party Un-
ion 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 following recommended 8
ORDER
The Respondent, Bristol Industrial Corporation and C.O.
Sabino Corporation, a single employer, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employ-
ees for supporting the Union or any other labor organization or
for engaging in other protected concerted activities.
(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, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union as the
exclusive collective bargaining representative, retroactive to
March 10, 2015, of all its full-time and regular part-time car-
penters.
(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, to substantial-
ly 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 in the
remedy section of the decision.
(d) Make Brian Dougherty and Thomas Boroughs whole for

8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
BRISTOL INDUSTRIAL CORP. AND C.O. SABINO CORP. 13
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.
(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.
(f) Within 14 days from the date of the Board’s Order, re-
move from its files any eference 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 dis-
charge will not be used against them in any way.
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, 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.
(h) Within 14 days after service by the Region, post at its
New Castle, Delaware, and Philadelphia, Pennsylvania facili-
ties 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 main-
tained for 60 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 Re-
spondent to ensure that the notices are not 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 employ-
ees employed by the Respondent at any time since March 19,
2015.
(i) Within 21 days after service by the Region, file with the
Regional Director for Region 4 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Dated, Washington, D.C. December 2, 2016
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
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 con-
certed activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 substantial-
ly 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 Bor-
oughs 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 CORP. AND C.O. SABINO CORP.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
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.