CMC Electrical Construction

National Labor Relations Board - Administrative Judge Opinions

Oct 10, 2006

02-CA-035489 (N.L.R.B. Oct. 10, 2006)

JD–58—06
Newburgh, NY

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

CMC ELECTRICAL CONSTRUCTION
AND MAINTENANCE, INC.

and Case 2—CA—35489

LOCAL 363, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL—CIO

Judith M. Anderson, Esq., for the
General Counsel.
Paul O. Sullivan, Esq. of Poughkeepsie,
New York, for the Respondent.
John D. Sager, of Harriman, New York,
for the Charging Party.

SUPPLEMENTAL DECISION

STATEMENT OF THE CASE

PAUL BUXBAUM, Administrative Law Judge. This original charge in this case was filed
May 9, 2003,1 and amended charges were filed June 6 and July 24. The complaint was issued
August 22. The case was tried before another administrative law judge on February 9, 2004, in
New York, New York.

On April 5, 2004, the administrative law judge issued a decision concluding that the
Company had violated Section 8(a)(1) and (3) of the National Labor Relations Act and
recommending that the Board order certain remedial action. The Company filed exceptions.
On May 31, 2006, the Board remanded the proceedings to the chief administrative law judge
with instructions to reassign the case to another administrative law judge for review of the
record and issuance of a new decision.2 The chief administrative law judge has assigned the
case to me for this purpose.

The complaint alleges that the Company, through its owner and president, violated
Section 8(a)(1) of the Act by unlawfully interrogating individuals about their union membership
on three separate occasions. It is further alleged that the Company twice violated this provision
of the Act by summoning the police in order to prevent a representative of the Union from
engaging in protected activities. In addition, the complaint alleges that the Company, through its
owner and president, also violated Section 8(a)(1) and (3) of the Act by discharging an

1 All dates are in 2003 unless otherwise indicated.
2 CMC Electrical Construction and Maintenance, Inc., 347 NLRB No. 25 (2006).

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employee because that employee had engaged in protected union activities. Finally, it is
contended that the Company violated the same provision of the statute by refusing to consider
for hire a job applicant because that applicant was a member of the Union. The Company filed
an answer, denying the material allegations of the complaint.

As described in detail in the decision that follows, I conclude that the Company’s owner
twice unlawfully interrogated an employee, and also unlawfully interrogated a job applicant. I
further conclude that the Company’s owner unlawfully refused to consider that job applicant for
hire. In addition, he unlawfully and discriminatorily discharged an employee. Finally, I
determine that the Company did not violate the Act by summoning the police on either of the
occasions alleged in the complaint.

On the entire record, having resolved disputed questions of fact,3 and considered the
briefs filed by the General Counsel and Respondent, I make the following

Findings of Fact

I. Jurisdiction

The Company, a corporation, provides electrical services on commercial and residential
construction projects in the Hudson Valley of New York State, where it annually provides
services in excess of $50,000 to enterprises located within the State of New York, each of which
is directly engaged in interstate commerce. The Company admits,4 and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. The Events at Issue

In 1997, John Michael Coleman founded CMC Electrical Construction and Maintenance,
Inc. He remains the owner and president of the Company and is solely responsible for its labor
policies, including the hiring and firing of employees. The Company performs electrical
construction work at various jobsites in the Hudson Valley area. During the period under
consideration, it employed approximately 10 workers, consisting primarily of journeymen

3 In its remand order, the Board gave me considerable latitude in deciding credibility
disputes. CMC Electrical Construction and Maintenance, Inc., infra., slip op. at fn. 4. Upon
careful review of the evidence and the arguments contained in both the trial briefs and the
parties’ submissions to the Board, I have concluded that it is not necessary to reconvene the
trial. In this connection, I conducted a telephonic conference at which the parties all agreed that
they did not wish to present additional evidence or argument. Furthermore, using the traditional
tools suggested by the Board, including my assessment of the weight of the evidence, the
admitted facts, the inherent probabilities, and all reasonable inferences, I am able to resolve the
disputes presented in the testimony and evidence. The Board authorized me to rely on the
demeanor-based credibility determinations made by the original administrative law judge to the
extent I find them consistent with the weight of the evidence. This has been largely
unnecessary. However, wherever those determinations have been factored into my
conclusions, I will discuss my reasoning.
4 See the Company’s answer to the complaint as amended and supplemented by the oral
stipulation of its attorney at trial. (GC Exh. 1(i) and Tr. 6.)

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electricians and helpers. Among the work projects undertaken by the Company at this time
were two that form the setting for major events in this case, a mall anchored by a Marshalls
retail store located in Newburgh, and a bar and tavern being built in New Paltz.

In February 2003, Local 363 of the International Brotherhood of Electrical Workers
began an organizing campaign among the employees of the Company. This project was
spearheaded by Sam Fratto, the Union’s business agent, and John Sager, one of its organizers.
The Union employed a variety of tactics and approaches designed to convince both
management and employees to enter into a relationship with it. Controversies that arose from
this effort form the issues involved in this case.

The Union’s campaign began with a visit to the Marshalls jobsite by Business Agent
Fratto in late February. Upon entering the electrical room at the site, Fratto encountered two
employees, Mitchel Bernasconi, a general foreman, and Michael Browne, an electrician. Fratto
introduced himself and indicated that he was present on behalf of the Union. At that point,
Bernasconi left the room. Fratto proceeded to discuss the issue of organizing the Company’s
work force with Browne, a longtime member of Local 208 of the same labor organization.

In response to Fratto’s inquiry about the attitude of Coleman, Browne reported that he
“didn’t think [Coleman] wanted to go Union.” (Tr. 122.) Browne testified that Coleman observed
him talking to Fratto. After Fratto departed, Coleman approached Browne and asked what
Fratto had said. Browne advised that Fratto had wanted to know Coleman’s attitude about the
union issue. Coleman’s ominously indirect initial response to hearing this information was to tell
Browne, “[w]ell, I don’t want you to leave.” (Tr. 123.) He added that, “there’s a possibility that I
could go Union or—and have a non-Union shop.”5 (Tr. 123.) At that point, their conversation
ended.

Browne reported that, during the following month, he had another conversation about the
Union in Coleman’s presence. This occurred in the office trailer at the Marshalls site. In
addition to Browne, Bernasconi, and Coleman, four other employees participated in the
discussion. Browne testified that most of the employees “were down on the Union.” (Tr. 124.)
One of them observed that if someone was in the Union, they “would lose their house.” (Tr.
124.) Browne disputed this, explaining that he knew many union members who owned homes.

Coleman testified that as of mid-March, work on the Company’s most important job, the
Marshalls store, was “substantially complete.”6 (Tr. 52.) Unfortunately, he did not receive a
final payment of $40,000 that he was owed for this project. This shortfall in expected income
“started the cash flow problems” that the Company now experienced. (Tr. 60.)

At this time, on March 12, Coleman hired an electrician, John Dickson. Dickson is a
longtime member of Local 363. Both Coleman and Dickson testified that Dickson went to the
Marshalls site and met with Coleman. As Dickson put it, Coleman “handed me an application.”
(Tr. 175.) Coleman confirmed that Dickson completed the form and returned it to him. They
discussed Dickson’s work experience. Coleman told Dickson to “give me a call in a couple of
days” and he would see if he could hire him.7 (Tr. 38.) Coleman testified that, after the

5 Browne’s testimony about this conversation is uncontroverted and I find it credible.
6 Coleman testified that the Company was still performing work at the Newburgh mall site on
four or five of the other stores. In addition, work was ongoing at the New Paltz site. These were
the only active Company projects at that time.
7 Coleman’s testimony about this meeting with Dickson was inconsistent. Although he first
Continued

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interview ended, he reviewed Dickson’s application. Concluding that “at the time, we needed
help,” and that Dickson appeared to be knowledgeable, Coleman decided to hire him. (Tr. 40.)
He reported that he did not contact any of Dickson’s employment references. Having made the
hiring decision, he obtained Dickson’s telephone number from the application form and phoned
him to ask if he could start work that day. Dickson testified that he received this phone call
approximately 90 minutes after their interview. He told Coleman that he was unable to report
that day, but he began working for the Company on the following day.

Slightly more than a week later, on March 21, Dickson was working by himself at the
Marshalls site when he was approached by Coleman. Coleman asked him if “Sam Fratto had
sent me there.” (Tr. 176.) He followed this by asking, “why the Union was hassling me, and he
asked me if I was a Union member.” (Tr. 176.) Dickson told Coleman that he didn’t know
anything about what Coleman was discussing. Coleman then indicated that he “didn’t care” if
Dickson was a union member, he “just wanted to know.” (Tr. 176.) Dickson again evaded
answering the questions and walked away.8

Ten days later, Coleman and Dickson had another discussion about the Union, this time
while at work on the stores located adjacent to the Marshalls. Coleman told Dickson that he
had learned from Fratto that Dickson was a union member. Once again, Dickson told him that
he did not know anything about this. And, once again, Coleman said that he “didn’t care,” but
simply “wanted to know.” (Tr. 177.) Dickson continued to feign ignorance about the entire topic.
Coleman thereupon departed.9

Dickson testified that he had one further conversation with Coleman about the Union on
the next day. This time, Dickson brought up the subject. He told Coleman that he had worked
for his father in the past and admired him. He then asked Coleman why his father had left the
Union. Coleman responded that, “he was mad at the Union because his father had employed a
lot of [Union] people and nobody ever offered him a job after his father went out of business.”
(Tr. 178.) Shortly thereafter, Dickson received a call from the Union telling him to come back to
work. He phoned Coleman to report his departure and testified that Coleman told him that he
was a “good man,” and “if I ever needed a job, to give him a call.” (Tr. 179.) Dickson’s last day
at the Company was April 3.

During the first half of April, Sager entered the picture as the major actor in the Union’s
organizing campaign. At that time, he visited the Marshalls site and encountered Coleman and
Bernasconi. He gave them his business card and asked if they were interested in joining the
Union. Bernasconi deferred to his employer. Coleman told Sager that he owned the Company,
adding that he had once belonged to the Union. Sager asked, “why can’t the two of us work
_________________________
reported that he told Dickson to call him in a few days, he later testified that he told Dickson that
he “would like to look at his application, and I would call him back, which I did.” (Tr. 40.)
Dickson reported that Coleman’s first version of this conversation was accurate, and I so find.
8 I base my findings regarding this conversation on Dickson’s uncontroverted testimony.
This exchange between the two men constituted one of the alleged unlawful interrogations
specifically charged in the complaint. See complaint par. 5(a). (GC Exh. 1(g).) Thus, it is
particularly noteworthy that Coleman did not dispute Dickson’s version of their discussion,
including the subject matter of the questions he posed to Dickson.
9 As with the March 21 conversation between the two men, I base my findings on Dickson’s
undisputed testimony. This lack of controversy about the content of the conversation is again
significant since the March 31 discussion is also the subject of a specific allegation of unlawful
conduct set forth in the complaint. See complaint par. 5(b). (GC Exh. 1(g).)

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together and unionize your company?” (Tr. 67.) According to Sager, Coleman responded that
he was unhappy with the way the Union had treated him and was also displeased with the
jobsite visits by Fratto and Sager. Sager testified that Coleman added that, “if we persisted in
trying to organize his company, that he was going to cause problems and go after the IBEW
Local [363].” (Tr. 68.) Sager responded that he would continue his organizing efforts and then
departed.

Coleman testified that Sager did pose the question about working together. He reported
that, after he rebuffed this offer, “the conversation disintegrated.” (Tr. 229.) Coleman testified
that Sager warned him that, “if I didn’t go Union, that, basically, he was going to put me out of
business.” (Tr. 229.) Sager added that he had forced a company owned by a friend of
Coleman, Hudson Valley Electric, to expend $250,000 in legal fees before finally signing a
contract with the Union.

I find it interesting that, in their testimony, neither man denied making the threats
reported by the other participant in their discussion.10 Coleman never disputed Sager’s report
that he would “cause problems” for the Union if it continued its campaign. On cross-
examination, Sager’s testimony about his reference to Hudson Valley Electric was highly
evasive. He initially claimed not to remember this part of the conversation, asserting that, “I’m
not denying it, nor am I admitting it.” (Tr. 104.) When pressed by counsel, he conceded that he
had brought up the subject of Hudson Valley Electric, telling Coleman that the owner of Hudson
Valley Electric, “was Union, why can’t [Coleman] be Union?” (Tr. 106.) After examining the
testimony of both men, I readily conclude that each uttered the threats reported by the other.11

Having twice sent representatives to the Company’s primary jobsite, the Union now
undertook a different organizing tactic. In mid-April, Fratto suggested that an unemployed union
electrician, Frank Sylvester, apply for a job with the Company. Fratto told Sylvester that
Coleman was non-union and “probably won’t hire you.” (Tr. 186.) Sylvester agreed to make the
attempt.

Sylvester followed through with his commitment on April 21. He went to the Marshalls
site and met with Coleman. He testified that Coleman asked him how he came to apply for work
with the Company. Sylvester responded that he was an unemployed electrician and had seen
the jobsite and figured, “maybe you would be hiring.” (Tr. 182.) Sylvester reported that
Coleman responded by asking, “[a]re you with the Union?” (Tr. 182.) Sylvester replied
affirmatively, whereupon Coleman told him that, “I don’t want to have nothing to do with the
fucking unions.” (Tr. 182.) Sylvester suggested that Coleman phone his own brother-in-law,
Ray Kellogg, to obtain a positive job reference for himself. Sylvester testified that Coleman
responded that, “I’m not fucking calling anybody. I don’t—nothing personal. I don’t want to

10 The third man present, Bernasconi, merely testified that the two men had a loud argument
and he “decided to get away from the conversation.” (Tr. 201.)
11 More generally, this illustrates my approach to the evaluation of the credibility of the
testimony of both Sager and Coleman. They were the principal representatives of their
respective institutions in this salting campaign. As two Board Members have observed, such a
struggle often represents a “battle for survival.” Aztech Electric Co., 335 NLRB 260, 272 (2001),
enf. in part 323 F.3d 1051 (D.C. Cir. 2003), concurring opinion of Members Liebman and Walsh.
In such circumstances, a finder of fact must approach the primary participants’ testimony with
care. I decline to make any overall determination of reliability. Instead, I will credit their
accounts of discrete events to the extent they are consistent with other evidence and
reasonable inferences.

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have nothing to do with the unions.” (Tr. 182—183.) That ended the conversation. Sylvester
left without having been offered an application form.

Coleman provided several accounts of what transpired during his meeting with
Sylvester. While disputing some key aspects of Sylvester’s testimony, he confirmed much of it.
He agreed that Sylvester had asked for work, telling him that he was a friend of his brother-in-
law, Ray Kellogg.12 Coleman told Sylvester that he did not have any work available. He
reported that, as Sylvester “was leaving the trailer, I said—I asked him if he were with the
Union.” (Tr. 53.) Sylvester responded that he was a union member. Coleman indicated that he
then told Sylvester, “[t]hat’s nothing against you. We are not hiring.” (Tr. 239.) Coleman
confirmed that he did not provide Sylvester with an application form and did not ask for any
contact information from him.

Coleman’s statements about why he brought up the subject of union membership are
illuminating. He contended that he raised this topic after already informing Sylvester that there
were no job openings. He continued to explain in testimony that proceeded as follows:

COLEMAN: I guess I was wondering—I only was—I—I had already
told him I wasn’t hiring, and I had just asked if he were
with the Union. It had nothing to do with his employment,
which I said to Mr. Sylvester.

JUDGE: Okay. You said you were not hiring. I mean, why would you
ask him are you a Union—

COLEMAN: Because—because there’s a practice of salting.13 And, I was
wondering if he was sent by Mr. Sager to apply for a job. That
was it.

(Tr. 54.)

Coleman admits that he asked a job applicant about his membership in the Union. He
further admits that his query was prompted by his concern about a potential salting campaign.
Yet, in an effort to minimize the import of his admitted remarks, he asserts that he raised this
issue only after the substance of the job interview had concluded. He attempts to explain the
illogical aspect of raising the issue after already having decided not to hire the applicant by
telling the judge that he was merely “wondering” and that his wonderment “had nothing to do
with [Sylvester’s] employment.” (Tr. 54.) Additionally, he claims that he was careful to add a
reassuring touch during the job interview, telling Sylvester that his union membership was
“nothing against you.” (Tr. 239.)

In my view, this is a case of a witness who, in the words of the Bard, “doth protest too
much, methinks.”14 I simply cannot credit Coleman’s claim that, although salting was on his
mind to such an extent that he could not refrain from interrogating a job applicant about it, he
was able to restrain himself so as to delay discussion of the topic until after the business at

12 Coleman testified that Kellogg was a “Union electrician” with Local 363. (Tr. 42.)
13 The Board defines “salting” as, “the act of a trade union in sending a union member or
members to an unorganized jobsite to obtain employment and then organize the employees.”
Aztech Electric Co., supra, at fn. 4.
14 William Shakespeare, Hamlet, Act III, Scene II.

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hand was concluded and the answer was no longer of any immediate practical use to him. The
logic and inherent probabilities of the situation convince me that Sylvester’s version of what
transpired during the job interview is entitled to credence.15

Having already made jobsite recruiting visits and engaged in a salting effort, the Union
now opened two new fronts in its organizing campaign. On May 9, it filed the original charge in
this case, alleging an unlawful threat, several unlawful interrogations, and a discriminatory
refusal to hire. (GC Exh. 1(a).) At the same time, Sager drafted a handbill entitled, “Notice to
the Public.” (GC Exh. 4.) In it, he reported that the Company had been charged with unfair
labor practices and was paying its employees wages and benefits that were substandard. It
urged readers not to patronize the Marshalls Store and another Company project, the Dooley
Square Restaurant. On the same day he prepared this handbill, Sager began distributing it at
the Dooley Square location. He testified that he placed the handbills under the windshield
wipers of cars parked in the lot at the worksite. He added that, if car windows were open, he
placed the handbills inside the vehicles.

On May 14, Sager distributed the same handbill, this time at the Marshalls site. He
began by placing the handbills on cars parked in the construction parking lot. He then went to
the median strip of the road and distributed the handbills to drivers stopped at the traffic light for
the entryway into the complex. He testified that he did this for 15 to 20 minutes during the lunch
hour. At that point, Browne walked over “to see what I was doing and to say hello.” (Tr. 76.)

Sager further testified that, at the same time that Browne stopped to converse with him,
Coleman approached carrying one of the handbills. Sager testified that he was “yelling and
carrying on,” and that he addressed Sager as follows, “I told you I didn’t want you coming to my
jobs. I told you I didn’t want you talking to my guys. I don’t want you putting this handbill on my
truck.” (Tr. 76.) Sager replied by telling Coleman that he didn’t know which truck belonged to
him. He added that he told Coleman to, “get the fuck away from me, which I believe he did. He
walked away.” (Tr. 76.) Browne walked away at the same time.

Coleman presented a different version of this incident, testifying that he asked Sager not
to put anything on his vehicle and that Sager told him that, “he would take a big old shit in my
car, if he wanted to.” (Tr. 230.) Interestingly, while under cross-examination, Sager had already
admitted to making a similar statement, one which he failed to disclose in his direct testimony.
He conceded that he told Coleman that, “[i]f I knew that was your truck, I probably would have
shit on it.” (Tr. 110.) I note that Sager’s choice of verb tense has some significance here.
Coleman claims that Sager made his statement in a forward looking, future tense. Sager
contends that he spoke entirely in the past tense.

Fortunately for the trier of fact, there was a witness to the conversation. Browne
described the incident, first noting Coleman’s profane approach to Sager. He testified that
Coleman told Sager, “[s]tay away from my fucking guys and don’t you ever touch my fucking

15 In evaluating the credibility of Sylvester’s testimony, I have taken account of the trial
judge’s demeanor-based finding of reliability. CMC Electrical Construction and Maintenance,
Inc., supra, slip op. at p. 2, fn. 1. I do so because, in furtherance of the Board’s instructions, I
have assessed the consistency of Sylvester’s account with the weight of the other evidence and
have concluded that it is consistent with the weight of such evidence and the reasonable
inferences to be drawn from it. My acceptance of this demeanor-based credibility finding forms
only a part of the rationale for according credit to Sylvester’s account. The remaining reasons
are set forth in the body of this decision.

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truck again.” (Tr. 125.) Browne then reported that Sager told Coleman that, “I’ll roll down the
window and take a shit in your truck.” (Tr. 125.)

I have no difficulty in resolving the dispute among the three witnesses as to the exact
words uttered. It is apparent that, unlike the two yelling adversaries, Browne was in the best
position to hear and recall what was said. Beyond this, his status at trial would hardly place him
in a position to be biased against Sager. By the time he testified, he was a victim of Coleman’s
allegedly unlawful and discriminatory decision to terminate his employment. The circumstances
strongly indicate that Browne’s account is worthy of belief. Based on Browne’s credible
account, I find that Sager’s statement was highly specific and emphatically phrased in the future
tense.

After the heated exchange, Sager resumed his handbilling of passing cars.
Approximately 15 minutes later he noticed the arrival of several police cruisers. The officers
spoke to Coleman for another 15 minutes. All but one of the cruisers then departed. The
remaining police car pulled up to Sager. The officer asked Sager if he had placed handbills on
cars parked in the lot. Sager said that he had. The officer told Sager that Coleman stated that
he had put a handbill on his truck and Sager agreed that he “probably did.” (Tr. 80.) Sager also
testified that the officer informed him that Coleman claimed that, “I had threatened him.” (Tr.
80.) Sager denied making any threats. The officer told him not to place handbills on the cars in
the lot. Sager asked if he could continue handbilling passing vehicles. The officer responded
that he had the right to do this. The conversation ended with the policeman advising Sager that,
“[n]obody has filed a complaint. Nobody complained about your handbilling here [in the divider]
. . . . Don’t worry about it. Continue handbilling.” (Tr. 81.)

In his testimony, Coleman confirmed that he had summoned the police after his
confrontation with Sager. He explained his reasoning for calling the authorities, noting that,

when somebody suggests that they’re going to violate your
personal—your personal being or your personal material, that
I consider a threat. Mr. Sager said that he was going to violate
something that I owned. That is a threat.

(Tr. 231—232.)

Approximately 2 weeks after he witnessed this confrontation between Sager and
Coleman, Browne’s employment with the Company came to an end. The circumstances of his
departure from this job are the subject of much controversy in this case. However, the initial
precipitating events are not in dispute.

All of the witnesses agreed that, on May 30, Browne was assigned to the Marshalls site
and reported for work at that location. Browne testified that, upon his arrival, he observed
approximately six employees standing around with nothing to do. No supervisors were present.
Browne telephoned Coleman, who instructed him to keep the men at the site all day. Later on,
another employee, Don Lee, also phoned Coleman. He informed his coworkers that Coleman
told him that, “checks were coming but they were going to be no good, and whoever wanted to
leave the job site could leave the job site.” (Tr. 128.) Browne testified that he decided to leave.
Before actually doing so, he attempted to phone Coleman to tell him that he was leaving and to
make arrangements to pick up his paycheck. He reported that he was unable to reach
Coleman, but left a message. He then departed from the Marshalls site.

Browne’s testimony about these events was thoroughly corroborated. Lee testified that

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he did phone Coleman, who told him that, if the employees wished, “we could go home and it’s
okay.” (Tr. 192.) Lee put it another way as well, testifying that Coleman advised him that, “[i]t
was our options, if we wanted to stay for the day, or to go home.” (Tr. 193.) Lee then informed
his coworkers. He noted that Browne departed. Yet another employee, Timothy Losee
confirmed Lee’s statements to the employees. He testified that Browne responded, “[w]ell, I
know what I’m going to do.” (Tr. 172.) Thereupon, he left the jobsite. Finally, and most
importantly, Coleman confirmed that he told the employees, “if you’d like to leave, you can
leave. If you’d like to stay, you can stay.” (Tr. 241.)

After leaving work that day, Browne made further efforts to obtain his paycheck. Since
his attempts to reach Coleman were unsuccessful, he proceeded to a local bar, a place where
thought he might encounter Bernasconi. Once there, he met Bernasconi’s brother who
informed him that his paycheck was at Bernasconi’s apartment. He retrieved the check and
gave it to Browne.

On the next day, a Saturday, Browne attempted to cash his paycheck and was informed
that there were no funds in the account. He called Coleman who told him that the funds should
now be present. Due to the hour, Browne did not make another effort to cash the check that
day.

On Monday, June 2, Browne called Coleman at 6:30 a.m. He testified that he asked
Coleman, “what’s going on with work?” (Tr. 131.) Coleman angrily responded that, “the Union’s
busting his balls, and that he’s going to have to go to federal court.” (Tr. 131.) Browne told
Coleman that he had nothing to do with that. Coleman disagreed, telling Browne that he had
gone behind his back, “talking to the guys about the Union.” (Tr. 131.) Coleman noted that
Browne had refused to quit the Union and Browne confirmed that we would not do so. He
testified that he told Coleman that, “I have too much invested in the Union. And I’m not going to
quit the Union.” (Tr. 131.) Coleman’s response was that Browne would have to “make up your
mind what you’re going to do.” (Tr. 131.) At that point, the conversation ended.

Later on this day, Browne returned to the bank and succeeded in cashing his paycheck.
However, at the same time, he was notified that his paycheck for the previous week had
bounced. On the following day, Browne phoned Coleman to report the problem with the check.
Coleman promised to get him the money “as soon as he could.” (Tr. 132.)

As of June 5, Browne had not received the funds. As a result, he went to the Marshalls
site and gave Bernasconi a copy of his check. He asked Bernasconi to tell Coleman to get in
touch with him or else, “I’m going to go to the Labor Board.” (Tr. 133.) Coleman then called
Browne and arranged to meet him at a bar. During the meeting, Browne was given his check.
He testified that the two men also discussed the union issue. Coleman told Browne that he
“wasn’t going to go Union.” (Tr. 133.) Browne responded that he was “fine with that.” (Tr. 133.)
The two men parted.

On the next day, Browne again called Coleman regarding a remaining check that he was
owed. Coleman indicated that he could pick it up later that day. Browne testified that he also
asked Coleman about work. He reported Coleman’s response as, “[h]e still had no reply of
work. It was more or less what I was going to do.” (Tr. 134.) He added that when Browne met
him to pick up the check, “he would discuss work with me.” (Tr. 134.) Later on, the two men did
meet. Browne received his check. Coleman told him that he “would call me and let me know
about work.” (Tr. 134.) Browne testified that he has never received another communication
from Coleman.

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The import of Browne’s testimony concerning the ending of his employment with the
Company was that Coleman gave him a choice between remaining a union member or
continuing to work for his company. While Coleman testified that he never discharged Browne,
he also conceded that their final conversation took a form that closely mirrors the nature of
Browne’s allegation against him. Thus, Coleman agreed that Browne asked him, “[s]o, do you
want me to come back to work?” (Tr. 249.) He then testified that he responded as follows,
“Mike think about what you want to do, and give me a call Monday.” (Tr. 249.)

I find that Coleman’s account is quite consistent with the nature of Browne’s allegation
against him. Coleman agrees that his employee, Browne, asked a very clear and specific
question about “com[ing] back to work.” (Tr. 249.) There was nothing in the conversation to
suggest that Browne was reluctant to report for work. To the contrary, the import of Browne’s
question was to determine whether he was welcome to return to duty. Rather than provide a
clear cut response, Coleman instructed Browne to “think about what you want to do.” (Tr. 249.)

Putting it all together, I conclude that Coleman’s admitted comment fits precisely with
Browne’s report that Coleman was pressuring him to make a choice between the Company and
his continuing membership in the Union. Indeed, in his testimony, Coleman came perilously
close to admitting that he had posed this choice to Browne. He reported that he wanted Browne
to continue working, but that Browne feared “retribution” from the Union and, “I guess he chose
the Union over CMC.” (Tr. 246, 247.) From this, it is apparent that Coleman visualized
Browne’s situation as being a choice between union membership and continued employment by
his company. Because the testimony of the two men dovetails in this regard and Browne’s
account is also consistent with the overall pattern of Coleman’s response to the organizing
campaign and Browne’s prominent role in that effort, I conclude that Browne’s testimony is
worthy of belief. I credit his account of how his employment with the Company terminated.16

The final major event involved in this case concerned another job visit by Sager. On
June 19, he went to the New Paltz tavern construction site. He testified that, upon arrival, he
observed 2 employees installing exterior electrical fixtures. He noticed that the larger of the
men was someone whom he had also seen working for the Company at the Marshalls location.
Sager introduced himself, and the larger man told him that he was wasting his time since they
didn’t want to join the Union. Sager testified that the men walked away from him and “went into
the doorway of the bar . . . [t]hey walked into the entrance.” (Tr. 88.) The larger man then
addressed Sager, stating that he was the foreman and, “I told you I did not want you on my job.”
(Tr. 88.) Sager continued his account, testifying that the foreman, “walked into the building, and
I started to walk in, behind him.” (Tr. 90.) Sager reported that, “I was in the doorway.” (Tr. 90.)
The foreman again told him not to enter the jobsite.

At this point, the foreman told Sager that he would telephone Coleman. However, the
smaller man was already talking on his cell phone. He told Sager that Coleman wished to
speak with him. Sager obtained the phone number and called Coleman. He testified that
Coleman told him he didn’t want him talking to his employees and that he was “going to start
sending the Union bills for lost time that you talk to my guys.” (Tr. 91.)

16 Once again, as authorized by the Board, I have factored the trial judge’s demeanor-based
assessment of Browne’s credibility into my reasoning process. CMC Electrical, infra, slip op. at
p. 2, fn. 1. I have done so because Browne’s testimony was consistent with the weight of the
evidence and inferences. Of course, it follows that I have again based my overall conclusions
on a mosaic of factors of which the judge’s credibility finding is merely one. The other factors
are discussed throughout the body of this decision.

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Sager testified that, as he was walking back to his vehicle, the foreman told him that,
“Mike Coleman says he has a restraining order against you, so you better leave.” (Tr. 92.) He
refused to leave. Instead, he retrieved a camera from his car and began taking photographs of
the outside of the construction site. Two police officers now arrived. Sager reported that one of
the officers told him that he had heard that there was a restraining order against Sager. Sager
denied the existence of such an order. The officers then spoke to the Company’s employees for
about 15 minutes. One officer then informed Sager that the foreman did not want Sager in the
building and added that, “I don’t want you going into the building.” (Tr. 93.) Sager promised
that he would not go into the building, but would remain outside and talk to employees.
Thereafter, he continued to attempt to speak to employees who were eating lunch outside.
Upon being ignored by them, he got in his car and departed.

Aside from Sager’s account, the only significant testimony about this incident was
provided by Coleman. He indicated that he received a phone call from his foreman, a man
named Charlie. The foreman reported that Sager was “harassing” him. (Tr. 235.) Coleman
says that he suggested to Charlie that he call the police and have them tell Sager to leave him
alone. Thereafter, as also indicated in Sager’s testimony, Coleman received a phone call from
Sager. Coleman testified that he told Sager that he did not wish to speak to him.

As to this incident, I note that Sager’s account is largely uncontroverted, and I credit it. I
will discuss the legal conclusions to be drawn from that account later in this decision.

After these events, Sager continued to draft and distribute handbills at Company
worksites, “throughout the Hudson Valley.” (Tr. 96, GC Exhs. 6 & 7.) In addition, the Union filed
two amended charges against the Company.

B. Legal Analysis

The Regional Director issued the complaint on August 22. That complaint alleges that
the Company engaged in unlawful activities by conducting three coercive interrogations, twice
summoning the police to interfere with Sager’s protected activities, and by discharging Browne
and refusing to consider Sylvester’s request for employment. I will now examine each of these
contentions.

1. The three interrogations by Coleman

The undisputed evidence demonstrates that Coleman interrogated his employee,
Dickson, about his union membership on March 21 and 31. The General Counsel contends that
those interrogations violated Section 8(a)(1) of the Act. In the leading case on this subject, the
Board articulated the considerations that it finds to be decisive in evaluating such an allegation.
It held that,

[i]t is well established that interrogation of employees is not illegal
per se. Section 8(a)(1) of the Act prohibits employers only from
activity which in some manner tends to restrain, coerce or interfere
with employee rights. To fall within the ambit of § 8(a)(1), either the
words themselves or the context in which they are used must suggest
an element of coercion or interference.

Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub nom. Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The standard enunciated in Rossmore House

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calls for a robust assessment of the totality of the circumstances surrounding the employer’s
questioning of the employee. Noting that “myriad” factual patterns will arise, the Board
cautioned against any “mechanical” approach and mandated consideration of such factors as
the general background, the nature of the information being sought, the status of the questioner,
and the place and method of the interrogation. Rossmore House, supra, at fn. 20, citing Bourne
v. NLRB, 332 F.2d 47 (2d Cir. 1964). It is also noteworthy that the Board views the analytical
standard as an objective one, i.e., whether a reasonable employee would experience coercion
or interference from the nature of the interrogation, not whether the actual employee in question
felt such coercion or interference. Multi-Ad Services, 331 NLRB 1226, 1228 (2000), enf. 255
F.3d 363 (7th Cir. 2001). I will now apply this test to the two interactions between Coleman and
Dickson.

On March 21, Coleman approached Dickson while he was working by himself at the
Marshalls store. He posed three questions: (1) an inquiry as to whether Union Business Agent
Fratto had sent Dickson to work at the Company, (2) whether Dickson was a union member,
and (3) why the Union was “hassling” him. (Tr. 176.) Dickson denied any relevant knowledge,
and Coleman departed.

Turning now to the probative factors, I note that the general background was that these
events were taking place in the context of the Union’s organizing campaign. However, although
Dickson was a union member, the record is silent as to his knowledge or participation in the
campaign. As a result, I find this to be a neutral factor. I also find the place and method of
questioning to be relatively neutral. It was done in the casual setting of the workplace and was
not designed to convey an impression of solemnity or formality.

On the other hand, the nature of the information being sought strongly suggests
improper coercion. In particular, Coleman was asking Dickson whether he was a salt.17 And,
the question was immediately followed by a strong indication that Coleman bore hostility to the
salting campaign, considering it to be harassment by the Union. The message undergirding
Coleman’s discussion was clear and potent. In addition, the fact that the questioner was the
owner and president of the employer lent great weight to the message being conveyed. I also
note that no valid purpose was conveyed to Dickson to explain the reason for the questions.18
Finally, I place weight on the factors that Dickson was a newly-hired employee and had not
announced his views on the Union or the salting campaign. See, Demco New York Corp., 337
NLRB 850, 851 (2002) (coercion inferred from the facts that an employee had been hired just 3
weeks before the interrogation and was not an open union supporter).

Upon consideration of the entire picture, I conclude that a reasonable person in
Dickson’s position would have experienced a sense of interference and coercion from

17 It will be recalled that Coleman testified that he was well aware of what he termed, the
“practice of salting.” (Tr. 54.) He reported that it was this concern that underlay his decision to
ask Sylvester about union membership. I infer that the same consideration applied to his similar
interrogation of Dickson.
18 The Board considers this to be a relevant factor. In addition, it considers whether the
questioner provided the employee with any assurances that there would be no reprisals.
Performance Friction Corp., 335 NLRB 117, 1126 (2001). In this regard, I do not consider
Coleman’s remark that “he didn’t care if [Dickson] was a Union member . . . [h]e just wanted to
know,” a satisfactory assurance of safety. (Tr. 176.) He did not provide Dickson with any such
reassurance regarding the question of whether he was a union salt. Nor can his statement be
divorced from his contention that the Union was “hassling” him. (Tr. 176.)

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Coleman’s interrogation on March 21. As a result, I find that this interrogation violated Section
8(a)(1) of the Act.

Ten days later, Coleman repeated his questioning of Dickson. Once again, the
exchange occurred on a worksite and the two men were alone. Coleman informed Dickson that
Fratto had told him that Dickson belonged to the Union. He went on to tell Dickson that he
didn’t care if he was a union member, but he “just wanted to know.” (Tr. 177.) Dickson avoided
answering the question and the interview ended.

As to this interrogation, the decisive analytical factor is the Board’s insistence on full
consideration of the context of the questioning, or as the Board put it in Rossmore House, the
“background.” 269 NLRB 1176, at fn. 20. Standing alone, Coleman’s words on March 31 might
pose a close question. However, they do not stand by themselves. Instead, they must be
considered in connection with the statements made by him to Dickson just 10 days earlier.
Having already asked Dickson if he was working for the Company at the behest of Fratto and
having told Dickson that he viewed the organizing campaign in a negative light, Coleman’s
repetitious inquiry into Dickson’s union membership, coupled with another reference to Fratto,
was coercive. Coming on the heels of the earlier coercive interrogation, I find that a reasonable
employee in Dickson’s position would experience a further sense of interference and
intimidation from the second round of such questioning by the owner of the Company that
employed him. As a result, I conclude that Coleman’s interrogation of Dickson on March 31
constituted another violation of Section 8(a)(1) of the Act.

The remaining alleged unlawful interrogation does not involve an employee, but rather a
job applicant, Sylvester. The exchange between Coleman and Sylvester took place on April 21.
As previous discussed, there was some dispute between the testimony of the two men as to
exactly what was said by Coleman at that time. To be more precise, there is no dispute that
Coleman asked Sylvester whether he was a union member. The two men disagree about the
timing of the question and the nature of certain additional remarks made by Coleman. For
reasons already discussed, I credit Sylvester’s version of the events, including his testimony
that Coleman asked about his union membership early on in the interview and that Coleman
followed his question with the twice-repeated comment that he did not want to have anything to
do “with the fucking unions.” (Tr. 182, 183.)

For some time, the Board strongly differentiated between questions about union
membership directed to employees as opposed to those aimed at applicants for employment.
In contrast to the fact-specific analysis required for interrogation of employees, the Board
appeared to apply a per se test for similar questions propounded to job seekers. For example,
in 1988, the Board observed that, “[i]t is well established that questions concerning union
preference, in the context of job application interviews, are inherently coercive and unlawful
even when the applicant is hired.” [Footnote omitted.] Gilbertson Coal Co., 291 NLRB 344, 348
(1988), enf. 888 F.2d 1381 (3d Cir. 1989). This position was reiterated in two cases decided 9
years later. See, M. J. Mechanical Services, 324 NLRB 812, 812—813 (1997), enf. 172 F.3d
920 (D.C. Cir. 1998), and Stark Electric, Inc., 324 NLRB 1207, 1210—1211 (1997), enf. in part
denied in part 166 F.3d 1210 (4th Cir. 1998). As recently as 1999, the Board took the same
view, holding that “[q]uestions concerning union preference, in the context of job applications,
are inherently coercive.” Pan American Electric, 328 NLRB 54 (1999), citing Gilbertson Coal
Co., supra.

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More recently, there appears to have been some slight shift from this position.19 In a
footnote in Boydston Electric, 331 NLRB 1450, fn. 5 (2000), the Board observed that, while it
“normally finds the interrogation of an applicant during an interview to be inherently coercive,” it
was declining to do so in the case of an applicant who had “tried to be as obvious as possible”
about his union membership during the interview. [Emphasis supplied.] This departure from
past practice was confirmed in Facchina Construction Co., 343 NLRB 886 (2004), enf. 2006 WL
994570 (D.C. Cir. 2006), where another interrogation of a job applicant was deemed lawful due
to the applicant’s obvious prounion advocacy during the interview.

It is apparent that, under the Board’s original formulation, Coleman’s undisputed inquiry
to Sylvester about his union membership was unlawful. However, given the recent nuances
articulated by the Board, I will also examine the particular circumstances of this job interview.
The evidence is clear that Sylvester had not given Coleman any indication of his union
membership prior to the point during the interview when Coleman posed his question. Thus, he
was not by any means an open and obvious union supporter. Furthermore, Coleman’s
repeated disparaging comments about the Union underscore the coercive nature of his
interrogation of this job applicant. I conclude that under either the standard in Gilbertson Coal
Co., supra, or in Boydston Electric, supra, the General Counsel has demonstrated that
Coleman’s interrogation of Sylvester during the course of a job application interview represented
unlawful coercion and interference in violation of Section 8(a)(1) of the Act.

2. The refusal to consider Sylvester for hire

Continuing with the analysis of Coleman’s behavior toward Sylvester, I note that the
General Counsel alleges that, on April 21 and ever since, Coleman has discriminatorily refused
to consider Sylvester for “employment as an electrician at the Marshalls jobsite in Newburgh,
New York.” (Complaint, par. 8, GC Exh. 1(g).) It is significant that the General Counsel does
not allege an actual refusal to hire Sylvester on April 21. I infer that the General Counsel
accepts the Company’s contention that it had no job openings available on that day.20 In this
regard, the Company’s records show that it did not hire any electricians between March 17 and
July 15. Electricians were hired on July 15 and 31, and on August 6.

The Board’s standard for analysis of an alleged discriminatory refusal to consider for hire
is set forth in FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). In that case, the
Board held that,

[t]o establish a discriminatory refusal to consider . . . the General
Counsel bears the burden of showing the following at the hearing
on the merits: (1) that the respondent excluded applicants from a

19 I am indebted to the interesting discussion of this question by the administrative law judge
in Oasis Mechanical, Inc., 346 NLRB No. 91 (2006), slip op. at pp. 11—12.
20 This question is not free from doubt. Just over a month earlier, Coleman hired electrician
Dickson. He testified that he did so because, “at the time, we needed help.” (Tr. 40.) Although
Coleman also reported that the Marshalls store job was “substantially complete” at that time
(mid-March), he nevertheless needed the services of Dickson. (Tr. 52.) Between the time he
hired Dickson and the date of his encounter with Sylvester, Coleman hired another electrician
Neil Prendergast, and two apprentices. (GC Exh. 2.) On the other hand, the Company’s
records do reflect that he laid-off a number of employees in early April and did not hire a new
electrician in the months of April, May, or June. (GC Exh. 2.) Given the state of the evidence, I
comprehend the General Counsel’s reasoning.

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hiring process; and (2) that antiunion animus contributed to the
decision not to consider the applicants for employment. Once this
is established, the burden will shift to the respondent to show that
it would not have considered the applicants even in the absence of
their union activity or affiliation.

FES, infra., at p. 15. The key distinction between a refusal to consider and a refusal to hire is
that, in a refusal to consider case, the General Counsel does not need to prove that hiring was
actually taking place at the time the applicant sought employment.21 FES, at p. 15. An
employer’s discriminatory refusal to consider an applicant is unlawful even in the absence of a
current job opening because such discriminatees are excluded from “the pool of applicants for
whom future jobs may become available,” and because such discrimination “is a deterrent to
employees’ engaging in their right of self-organization.” FES, at p. 16.

Applying the Board’s test, I first find that the evidence establishes that Coleman did
exclude Sylvester from the Company’s hiring process. As is common for a small, individually-
managed company, that hiring process was rather informal. Nevertheless, certain elements of
the process were clearly established. Dickson’s testimony demonstrated that the Company
utilized a written job application form. Coleman reported that he reviewed that form during his
decision-making process regarding Dickson’s hiring. He also testified that he used the contact
information provided on that form to telephone Dickson to offer him the job.

The record also establishes that the Company relied on two factors as important
elements of the hiring process. First, Coleman understandably placed great emphasis on prior
job experience. In addition, Coleman testified that he relied on positive recommendations. As
he put it, “[p]eople are recommended to us, and we hire them.” (Tr. 36.)

With this background, it is apparent that Sylvester’s treatment differed markedly from the
Company’s general hiring practices. First, and most importantly, Sylvester was not offered the
opportunity to complete a job application form. This deprived him of the opportunity to set forth
in writing his prior experience. Even worse, the failure to offer him an application form
precluded him from providing contact information in the event openings became available in the
future. In addition, Coleman did not make any inquiry into Sylvester’s professional experience.
Strikingly, Coleman expressly declined Sylvester’s suggestion that he contact his own brother-
in-law, a fellow electrician, to obtain information regarding Sylvester’s qualifications for
employment. A comparison of Sylvester’s treatment with the Company’s general practices
readily demonstrates that Sylvester was totally excluded from the hiring process.22

Beyond this blatantly disparate treatment, I find a deliberate refusal to consider
Sylvester’s application from Coleman’s immediate response to Sylvester’s statement that he
was looking for work and figured that, “maybe you would be hiring.” (Tr. 182.) I have credited

21 There are other differences as well. For instance, the General Counsel need not prove
that the applicant had relevant experience or training. Tim Foley Plumbing Service, 337 NLRB
598, fn. 5 (2002), enf. 68 Fed Appx. 206 (D.C. Cir. 2003).
22 Coleman’s failure to provide Sylvester with an application form is also circumstantial
evidence of unlawful animus. For example, in another salting case, Watkins Engineers &
Constructors, Inc., 333 NLRB 818 (2001), the employer maintained a call-in list for job
applicants but refused to put the names of known union affiliated applicants on that list. The
Board agreed with the judge’s finding of animus based on this behavior, calling it a “classic
example” of disparate treatment. 333 NLRB at 819.

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Sylvester’s testimony that Coleman took this opportunity to ask him if he was a union member.
Upon receiving an affirmative response, Coleman declared that he didn’t want to have anything
to do with “the fucking unions.” (Tr. 182.) It is apparent that this profane comment signaled the
end of any consideration of Sylvester’s prospects for employment at that time or thereafter.

At the next step in the analysis, I must evaluate whether antiunion animus substantially
contributed to Coleman’s decision not to consider Sylvester’s application. As is obvious from
the foregoing discussion, I conclude that antiunion animus was the entire reason for Coleman’s
decision to exclude Sylvester from the hiring application process.23 Indeed, the strength of
Coleman’s antiunion animus as a motivating factor was perfectly illustrated by his statement to
Sylvester that it was “nothing personal. I don’t want to have nothing to do with the unions.” (Tr.
182—183.) Thus, there was nothing wrong with Sylvester himself, what was wrong was his
union membership.

Having found that the General Counsel has established the required elements for an
initial showing of a wrongful refusal to consider, the burden now shifts to the employer to
demonstrate that it would not have considered Sylvester for hire even in the absence of his
union membership. Of course, given what Coleman told Sylvester during their encounter, this is
an impossibility. Coleman did testify that he had no way to contact Sylvester when jobs did, in
fact, become available a few months later. Aside from the fact that his lack of contact
information stemmed directly from his own discriminatory refusal to provide Sylvester with a job
application, I note that Sylvester’s response to this asserted difficulty was both amusing and
persuasive. In reply to questions about this issue from counsel for the Company, Sylvester
noted that Coleman had taken pains to learn that he was a union member. As a former union
member himself, “he would have known how to get a hold of me, yes.” (Tr. 187.) Sylvester also
reminded counsel that Coleman could have reached him through his own brother-in-law, the
man that Sylvester had cited as a job reference during their interview. Thus, there was no
impediment to Coleman’s consideration of Sylvester for the jobs that became available in July
except for Coleman’s antiunion animus.24

I conclude that, on April 21 and thereafter, the Company discriminatorily refused to
consider Sylvester for employment. This conduct violated Section 8(a)(1) and (3) of the Act.

3. The termination of Browne’s employment

The General Counsel alleges that the Company discharged Browne on June 2, and that

23 I have already noted that the General Counsel has deferred to the Company’s contention
that no jobs were available on April 21. To that extent, this factor would certainly have provided
a partial explanation for the refusal to hire Sylvester. However, Coleman’s antiunion animus
was the motivating reason for his refusal to provide Sylvester with an application form or to
contact his proffered reference, thereby depriving Sylvester of the opportunity to avail himself of
future job openings, including the positions that became available less than 3 months later.
24 I note that this is not a situation where an employer proves that it has an established
practice of discarding applications after the passage of a particular period of time. Such a
policy, if based on genuine business considerations and applied neutrally, would not be
unlawful. The Company presented no evidence whatsoever regarding the retention of job
application forms. Indeed, what Coleman did report was that his business went in cycles. As
he put it, “we have times when we have a lot of work, and when we don’t have work.” (Tr. 51.)
This would certainly suggest the desirability of maintaining a pool of applicant’s records to
permit rapid expansion of the work force as conditions warranted.

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this action was motivated by unlawful animus against him. The Board’s framework for analysis
of this claim was established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399—403 (1983). One of the most comprehensive descriptions of that test
is found in American Gardens Management Co., 338 NLRB 644, 645 (2002), where the Board
stated:

To establish his initial burden under Wright Line, the General Counsel
must establish four elements by a preponderance of the evidence. First,
the General Counsel must show the existence of activity protected by the
Act. Second, the General Counsel must prove that the respondent was
aware that the employee had engaged in such activity. Third, the General
Counsel must show that the alleged discriminatee suffered an adverse
employment action. Fourth, the General Counsel must establish a
motivational link, or nexus, between the employee’s protected activity and
the adverse employment action.

If after considering all of the relevant evidence, the General Counsel has
sustained his burden of proving each of these four elements by a preponderance
of the evidence, such proof warrants at least an inference that the employee’s
protected conduct was a motivating factor in the adverse employment action
and creates a rebuttable presumption that a violation of the Act has occurred.
Under Wright Line the burden then shifts to the employer to demonstrate that
the same action would have taken place even in the absence of the protected
conduct. [Citations and footnotes omitted.]

I will now proceed through these steps in the analytical process.

As to Browne’s participation in protected activities, the record is replete with evidence of
his union involvement and sympathies. Indeed, he can fairly be characterized as the strongest
union supporter among the Company’s work force. At the beginning of the organizing
campaign, Browne provided Fratto with information regarding Coleman’s attitude toward the
Union. In March, Browne defended the Union during a group discussion when a coworker
claimed that union members would lose their homes. On May 14, Browne made a highly visible
expression of support for Sager’s organizing activity by openly greeting Sager while he was
engaged in handbilling cars entering the mall complex. Finally, when under pressure from
Coleman to quit the Union, he staunchly refused, telling his employer, “I am not going to quit the
Union.” (Tr. 131.) I readily conclude that Browne had been engaged in protected union activity.

The second step of the process requires a finding as to the employer’s knowledge of the
protected activity. Once again, the record is filled with direct evidence of such knowledge. At
the very outset of the organizing campaign, Coleman came upon Browne conversing with Fratto
during Fratto’s visit to the Marshalls jobsite. He asked Browne about the nature of their
conversation and Browne informed him that it was about the issue of union representation.
Shortly thereafter, Coleman was one of the participants during the discussion at which Browne
defended the Union to his skeptical coworker in the presence of other employees. Perhaps
most strikingly, Browne was showing his open support for Sager at the very moment when
Coleman approached Sager to complain about the handbilling of his truck. Lastly, Coleman
expressed his knowledge of Browne’s protected activities by his repeated demands that Browne
choose between the Union and continuing his employment with the Company. There is no
doubt that Coleman was aware of the full nature and extent of Browne’s involvement in, and
support for, the organizing campaign.

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At the third analytical step, the General Counsel must prove that the employee suffered
an adverse employment action. Somewhat unusually compared with the average discharge
case, it is at this step that the battle is truly joined and the employer has mounted his most
vigorous defense. Counsel for the Company has rather colorfully asserted that the General
Counsel has:

attempted to create an inferential mountain out of a factual molehill.
Truth be told, in this case the evidence is clear beyond peradventure
that Michael Browne was not discharged, but that he voluntarily left
his position with Respondent’s company.

(R. Br. at p. 4.) In support of his point, counsel correctly notes that Coleman and Bernasconi
both credibly testified that Browne was never told that he was discharged, fired, terminated, or
any other such thing.25

In these circumstances, the Board’s methodology for determination of whether an
adverse action has occurred was recently summarized in Nations Rent, Inc., 342 NLRB 179,
179—180 (2004):

Where an unlawful discharge is alleged, it is self-evident that the
General Counsel must show, first and foremost, a discharge. The
fact of a discharge does not depend on the use of the formal words
of firing. It is sufficient if the words or action of the employer would
logically lead a prudent person to believe his or her tenure has been
terminated. [Citations and internal quotation marks omitted.]

In addition, the Board has also approved an administrative law judge’s observation that,

[m]oreover, once an employer creates an ambiguity or confusion as to
an employee’s employment status, it is incumbent on the employer to
clarify and remove any implication that the employee has been
terminated.

Five CAP, Inc., 331 NLRB 1165, 1201 (2000), enf. 294 F.3d 768 (6th Cir. 2002).

I will now apply these principles to the final series of conversations between Coleman
and Browne. It will be recalled that Browne’s last day on the job was May 30. Due to problems
with payroll checks, Coleman gave the employees the option to leave the jobsite and Browne
elected to do so. The next workday was June 2. Browne credibly testified that he phoned
Coleman and asked him, “what’s going on with work?” (Tr. 131.) Coleman angrily responded
that the Union was “busting his balls.” (Tr. 131.) Browne replied that he had nothing to do with
that. Coleman responded, “I did, because I went behind his back, talking to the guys about the
Union.” (Tr. 131.) Coleman went on to note that Browne had refused to quit the Union. Browne
agreed, observing that, “I have too much invested in the Union. And, I’m not going to quit the
Union.” (Tr. 131.) Significantly, Coleman ended the conversation by telling Browne, “Well, you
have to make up your mind what you’re going to do.” (Tr. 131.) Thus, instead of a clear and

25 Of course, it is equally true that Browne credibly and uncontrovertedly testified that he
never told Coleman or Bernasconi that he quit, resigned, terminated his employment, or any
similar concept.

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direct response to Browne’s inquiry about what was “going on with work,” Coleman chided him
about his Union membership and demanded that he make a choice.

Browne did not leave matters in this posture. On June 6, he telephoned Coleman about
an outstanding check and also to “ask[ ] him about work. He still had no reply of work. It was
more or less what I was going to do.” (Tr. 134.) In other words, Coleman still avoided a clear
statement regarding Browne’s employment status and reiterated the need for Browne to make a
choice. Coleman added that he would discuss the work issue further when the two men met
later that day so that Browne could receive his check. When they did meet, Browne was given
his check. According to his testimony, Coleman ended their conversation by telling him, “that he
would call me and let me know about work.” (Tr. 134.) No such call was ever forthcoming.

It is important to remember that Coleman’s testimony confirmed a key element of
Browne’s account. He agreed that their last conversation occurred on June 6. He also agreed
that Browne asked him, “do you want me to come back to work?” (Tr. 249.) Tellingly, he
testified that his response to this simple and direct query was, “Mike think about what you want
to do, and give me a call Monday.” (Tr. 249.) I credit Browne’s version of this conversation,
noting that much of Coleman’s testimony supports the thrust of Browne’s account. There is no
doubt that Coleman never gave Browne a clear cut answer to his question about continuing
employment, instead leaving Browne with a decision that he was required to make. From all the
circumstances, I conclude that the decision was whether Browne wished to remain an employee
of the Company or a union member. In Coleman’s expressed viewpoint, Browne could not do
both. It was on those metaphorical shoals that their employment relationship foundered.

In deciding whether Coleman’s words and actions constituted an adverse employment
action, it is instructive to look at some similar factual situations and the Board’s conclusions
about them. In particular, it is useful to examine three cases that were all decided in 2001. In
Intercon I (Zercom), 333 NLRB 223 (2001), an employee resigned her employment in response
to receiving a warning and transfer arising from her organizing activities. The Board found her
resignation to be an unlawful “Hobson’s Choice constructive discharge.”26 333 NLRB 223 at fn.
9. Quoting from a case that harkened back to the very beginnings of the Board’s work, it noted
that, “[t]o condition employment upon the abandonment by the employees of the rights
guaranteed them by the Act is equivalent to discharging them outright for union activities. Atlas
Mills, Inc., 3 NLRB 10, 17 (1937).” 333 NLRB 223, at fn. 6. Although the Board recognized that
the employee had not been given a “literal” message to choose between organizing activity and
continued employment, “the Hobson’s Choice was clearly and unequivocally conveyed” through
the disciplinary measures imposed. 333 NLRB at 224.

In Westchester Iron Works Corp., 333 NLRB 859 (2001), the Board affirmed an
administrative law judge’s conclusion that an employee had been unlawfully discharged. The
employee had filed an administrative complaint against his employer. The employer asked him
to withdraw it, and he refused to do so. The employer then told him that, “he should ‘take a rest’
and when he was ready he should call and then they would talk.” 333 NLRB at 868.

26 The reference is to a stable keeper, one Thomas Hobson. He allowed his customers to
rent any horse they desired so long as it was the one nearest the stable door. Webster’s II New
Riverside University Dictionary, p. 585, (1994). Perhaps the most famous Hobson’s Choice was
Henry Ford’s dictum that you could have a Model T in any color you wished, so long as it was
black.

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The third case represents perhaps the outer edge of the Hobson’s Choice doctrine.27 In
Earthgrains Co., 334 NLRB 1131 (2001), an employee quit after he was refused a promotion to
a sales route and was told that, “if I would [have left] the union alone and kept my nose clean, I
would have got a route.” 334 NLRB at 1131. The Board characterized the employer’s conduct
as follows:

In this case, although the Respondent did not literally threaten to
discharge [the employee], we find that the foregoing statement to
him was a clear and unequivocal signal that not only would the
Respondent refuse to employ him in the job to which he was
entitled but his future in any job was contingent on abandonment
of insistence on union representation.28

334 NLRB at 1131.

It is clear to me that Coleman’s statements to Browne, coupled with his refusal to
provide a direct answer to Browne’s inquiries about his work status, fall squarely within the
Hobson’s Choice constructive discharge doctrine. A reasonable person in Browne’s situation
would conclude that further employment with the Company was entirely contingent on
resignation from the Union. By unlawfully placing Browne on the horns of such a dilemma,
Coleman was, in effect, discharging him. I conclude that Browne was subjected to an adverse
employment action within the meaning of Wright Line.

I recognize that the Employer protests, observing that there were a variety of factors that
could explain a decision by Browne to voluntarily resign his position with the Company. In
particular, counsel for the Company posits that Browne stopped working for the Company
because,

he was engaged in his own enterprise known as Moore Electric . . . .
Additionally, Mr. Browne left the position because he and his wife
were undergoing expensive medical procedures, and since the
respondent was experiencing extreme financial conditions, there
was a possibility that checks issued by respondent would not be
good.29

27 Another case perhaps at the outer edge of the doctrine is Shenandoah Coal Co., 305
NLRB 1071 (1992), where the employee asked, “well, are you firing me?” The employer
responded, “no . . . I just think it’s time for you to leave.” 305 NLRB at 1073. The Board
affirmed the administrative law judge’s conclusion that the employee had been unlawfully
discharged.
28 The Court of Appeals declined to endorse the Board’s reasoning in this regard, finding
that the employer’s conduct was an unlawful denial of a promotion, not a constructive discharge.
Sara Lee Bakery Group, Inc. v. NLRB, 296 F.3d 292, 300—301 (4th Cir. 2002). Of course, in
the case before me there is no issue of promotion. The only issue is retention of Browne’s
current position.
29 In opening argument, counsel raised two other purported reasons for Browne’s cessation
of work for the Company. He suggested that Browne was “being put under severe pressure by
the Union, and that he was going to lose his [Union] pension,” and that he “asked to be paid off
so he could collect unemployment [benefits].” (Tr. 22.) I reject these speculations because they
are totally unsupported by any credible evidence. Indeed, the evidence shows that Browne was
actively engaged in helping the Union organize the Company’s work force and that the Union
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(R. Br. to the Board, p. 12.)

It is uncontroverted that Browne owned his own electrical contracting business.
However, it is noteworthy that, as counsel for the Company reported, “[h]e had his own business
. . . from the date that he started working for CMC, to the date that he left CMC.” (Tr. 11.) It is
hardly unusual to find someone who holds two jobs in an effort to improve his finances and
advance his career. The record reflects that Coleman provided his employees with a work
environment that was highly supportive of their outside interests. An employee who testified on
behalf of the Company, Donald Lee, reported that Coleman, “is very lenient when it comes to if
you want personal time.” (Tr. 198.) He added that Coleman, “would let the people that’s
working for him take off at any time they want . . . [a]nd there was a lot of people that could
come and go.” (Tr. 198.) Lee specifically included Browne among this number, testifying that
he had left work “previous times, before . . . and nobody thought nothing of it, okay.” (Tr. 199.)
Indeed, Coleman confirmed that he had never disciplined, or even spoken to, Browne about any
problem with his attendance habits. There is nothing in the record that would explain Browne’s
departure on May 30 as being related to his second job. This is pure conjecture.30

Counsel for the Company’s second argument in support of a conclusion that Browne quit
his job is illogical. It is suggested that Browne would have departed out of concern that the
Company’s financial condition would cause him to be denied pay that he had earned. In fact,
the evidence shows that there was no such concern and no particular reason for any worries in
this regard. Browne testified that temporary paycheck problems “happened a lot” and never
caused him to consider resignation. (Tr. 135.) Coleman confirmed that these problems had
arisen before the period under consideration. His counsel, writing in another context, stressed
that, “[m]ost importantly, it must be noted that respondents did, of course, honor and pay Mr.
Browne fully for all payroll wages due him.” (R. Br. to the Board, p. 30.)

There is nothing in the record to support a hypothesis that Browne quit his job because
he was afraid of not being paid his wages. In fact, the evidence shows that Coleman was a
flexible employer who accommodated his employees’ need for time off from work and who
made every effort to live up to his obligations regarding compensation. I readily conclude that
Browne’s employment terminated for the reason he indicated; i.e., because of his refusal to
comply with his employer’s unlawful insistence that he resign from the Union in order to retain
his job.

Having found that the General Counsel has demonstrated that Browne was discharged
from his employment with the Company and that unlawful animus formed a predominant
motivating factor in that discharge, the burden shifts to the employer to show that Browne would
have been discharged regardless of his protected activities. As I have indicated, the Company
primarily contends that Browne was not discharged at all. To the extent that it is claimed that
Browne engaged in any misconduct, the issue is one of attendance. The Company did present
_________________________
was attempting to increase the ranks of its members employed by the Company, not decrease
them.
30 In fact, the second reason for Browne’s departure raised by counsel for the Company
would cause one to speculate that Browne was under pressure not to leave his full-time job at
this time. As counsel notes, he and his wife were undergoing “expensive” fertility treatments.
(R. Br. at the Board, p. 12.) This would hardly be the time to make a major career shift,
especially given Browne’s uncontroverted testimony that Coleman had told him he could “take
any time I needed” for such treatments. (Tr. 155.)

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payroll records indicating that Browne’s hours were inconsistent, and that he was absent for
substantial periods. As already discussed, the employer was aware of Browne’s medical
situation and had specifically approved absences related to this problem. Furthermore, it is
undisputed that Coleman was a lenient boss in this connection. He tolerated absenteeism from
all of his employees. He never reprimanded or disciplined Browne for his reporting habits, and it
is clear that he did not discharge him for those habits.

There is simply no evidence on which to base a finding that Browne was discharged for
any workplace misconduct. The sole credible rationale for Browne’s departure from
employment was his refusal to abandon his union membership as a condition of his continued
tenure with the Company. The imposition of such a condition of employment constituted a
violation of Section 8(a)(1) and (3) of the Act.31

4. The Company’s summoning of the police in response to Sager’s activities

It is undisputed that employees of the Company twice contacted the police in response
to certain of Sager’s activities in connection with the Union’s organizing campaign. The General
Counsel contends that these actions constituted unlawful restraint, coercion, and interference
with the Union’s protected activities. As the facts are somewhat different in each instance, I will
address them in turn.

On May 14, Sager entered the Company’s Marshalls jobsite and placed handbills on
vehicles parked in the construction lot. The handbills criticized the Company’s conduct and
noted that unfair labor practice charges had been filed against it. He then proceeded to the
median located at the intersection for the entryway into the site and presented handbills to
drivers passing through the area. While there, he became involved in a unpleasant and profane
encounter with Coleman.

I have already noted that I place great weight on the testimony of the sole eyewitness to
the events in controversy, Browne. Browne reported that Coleman approached Sager while
brandishing one of the handbills. He told Sager to, “[s]tay away from my fucking guys and don’t
you ever touch my fucking truck again.” (Tr. 125.) Browne testified that Sager responded to
this profane outburst by telling Coleman that, “I’ll roll down the window and take a shit in your
truck.” (Tr. 125.)

After this confrontation, Coleman telephoned the police. He explained that he took this
step because, “Mr. Sager said that he was going to violate something that I owned. That is a
threat.” (Tr. 231—232.) Police officers responded and interviewed Coleman. Subsequently,
one officer spoke to Sager. Sager admitted having probably placed a handbill on Coleman’s
truck, but denied threatening him. The officer told Sager not to worry because, “[n]obody has
filed a complaint.” (Tr. 81.) He was told that he was within his rights to continue handbilling
cars from the median strip. The officer left, and the incident was over.

In assessing whether Coleman’s summoning of the authorities violated the Act, I note

31 Toward the end of the trial proceedings, counsel for the Company appeared to raise a
defense that Browne was a supervisor under the Act. He has not raised this issue in his
subsequent briefs. More importantly, the Company’s own witnesses reported that, while
Browne may have been a supervisor on some jobs in the past, he was not a supervisor at the
time under analysis. Both Bernasconi and Lee testified to this point, and their reports were not
disputed. (Tr. 197, 204.)

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that the Board holds that,

[t]he burden is on the General Counsel to prove by a preponderance
of the evidence that the Respondent’s conduct violated Section 8(a)(1)
by interfering, restraining, or coercing [an individual] in the exercise of
[his or] her Section 7 rights.

North Hills Office Services, 345 NLRB No. 107, slip op. at p. 2 (2005). The appropriate
analytical test is that,

[u]nder the 8(a)(1) standard, the Board first examines whether the
employer’s conduct reasonably tended to interfere with Section 7
rights. If so, the burden is on the employer to demonstrate a
legitimate and substantial business justification for its conduct. It is
the responsibility of the Board to strike the proper balance between
the asserted business justifications and the invasion of employee
rights in light of the Act and its policy. [Internal quotations and
citations omitted.]

California Newspapers Partnership, 343 NLRB 564, 565 (2004).

Applying this test, I conclude that the General Counsel has shown that Coleman’s
decision to call the police did have a reasonable tendency to interfere with Sager’s handbilling
activity. There is no claim whatsoever that Sager lacked a right to pass out his handbills to
drivers at the intersection. Sager’s need to cease distributing the Union’s literature while
responding to the police investigation did cause an interference with his protected activity.

I must now evaluate whether the Company has presented a legitimate and substantial
business justification for the degree of interference created through the decision to involve the
police. Counsel for the Company explains the employer’s reasoning as follows:

Mr. Sager had threatened to damage [Coleman’s] property and . . .
he called the police department to make sure that there was a record if,
in fact, he later found that his vehicle was damaged. It is clear that Mr.
Coleman felt threatened by Mr. Sager’s threat, not because he was
handbilling . . . . This conclusion is reasonable and logical and that is
why the police were called.

(R. Br. at the Board, p. 20—21.)

In response, counsel for the General Counsel argues that,

[it] is implausible that, given the construction site setting, Sager’s
comment that if he had known one of the cars he handbilled was
Coleman’s he “probably would have shit on it” would strike fear in
the heart of Coleman.

(GC Br. at p. 19.)

I have two difficulties with this response. Firstly, it adopts Sager’s testimony about what
he actually said. I have chosen to credit the more troubling version contained in Browne’s
testimony, an account from someone with no reason to be biased against Sager and a clear

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reason to be biased against Coleman. That account placed Sager’s comment squarely in the
future tense. As such, it certainly had a threatening ring to it.

Secondly, counsel for the General Counsel seems to suggest that Sager’s statement is
rendered innocuous because it was uttered in a “construction site setting.” She does not
elaborate on this concept or cite any authority for it. I suspect she is referring to the widespread
recognition that persons involved in contentious labor disputes often resort to crude language.
See, for example, Honda of America Manufacturing, 334 NLRB 751 (2001), enf. 73 Fed. Appx.
810 (6th Cir. 2003) (citing the Supreme Court’s acknowledgement that both labor and
management often speak recklessly and that such freewheeling language is protected by the
Act.)

To the extent that the participants in this encounter both used profanity, I agree with her
contention that their conduct was protected by the Act. Thus, Sager’s use of the word, “shit”
would not necessarily be problematic. Had he employed this expletive in its broad meaning of
something bad, it would be unremarkable speech.32 However, here Sager was using this term
in its original sense as a verb meaning “to defecate.” In particular, he was expressing a future
intention to defecate inside Coleman’s truck. It requires no citation to authority to note that this
would violate a longstanding human taboo, one that is certainly reinforced by the modern
scientific understanding of the link between human feces and disease.33

The Board’s test for evaluating words that may be construed as a threat is an objective
one. The issue is whether the remark “can reasonably be interpreted” as a threat. Neither the
actual intent of the speaker nor the subjective impact of the words on the listener are decisive.
Smithers Tire, 308 NLRB 72 (1992). I find that Sager’s heated remark was sufficiently pointed,
distressing, and intimidating to be reasonably construed as a threat.34 Beyond this, it
constituted a threat of a particularly disgusting nature.

Having concluded that it was reasonable for Coleman to perceive Sager’s statement of a
future intention to defecate inside his vehicle as a serious matter, I also find that it was equally
reasonable for Coleman to report the statement to the police in order to seek their intervention
and to create a record in case of future damage to his truck. As a result, I determine that the
employer has presented a legitimate and substantial business justification for his decision to
summon the police regarding Sager’s statement.35 I conclude that Coleman’s decision to notify

32 To illustrate, the press recently reported that the President of the United States used the
same term in an unguarded moment when describing what he believed was misconduct by a
foreign government. See, http://www.cnn.com/2006/POLITICS/07/17/bush.tape/.
33 Of course, I cannot say whether Sager was remotely serious about this. We are all prone
to making stupid statements in the heat of emotion. Nevertheless, it was certainly an odd,
bizarre, and troubling thing to say.
34 In Smithers, supra, at p. 73, the Board also noted that threats of damage to an
employee’s automobile were particularly serious given the economic significance of this means
of transportation to an individual worker. I see no reason that this would not also apply to a
small, financially-struggling employer.
35 Counsel for the General Counsel cites three cases for the proposition that the Company
lacked a legitimate and substantial business justification: Snyder’s of Hanover, Inc., 334 NLRB
183 (2001), enf. in part denied in part 39 Fed. Appx. 730 (3d Cir. 2002), Farm Fresh, Inc., 326
NLRB 997 (1998), enf. in part 222 F.3d 1030 (D.C. Cir. 2000), and Indio Grocery Outlet, 323
NLRB 1138, 1141 (1997), enf. sub nom. NLRB v. Calkins, 187 F.3d 1080 (9th Cir. 1999), cert.
denied 529 U.S. 1098 (2000). All of these involved employers’ reliance on an asserted right to
Continued

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the police about Sager’s threat to “take a shit in your truck” did not violate Section 8(a)(1) of the
Act.

Finally, the General Counsel contends that the Company violated Section 8(a)(1) when
an unidentified employee summoned the police to the New Paltz tavern worksite in response to
Sager’s activities there. This incident occurred on June 19, when Sager went to the site and
observed two men working on the outside of the building. Sager testified that he recognized the
bigger of the men as someone that he had also seen working on the Marshalls job. He
approached the men and began discussing the Union. The men retreated toward the tavern
entrance. The bigger man identified himself as the foreman and told Sager that, “he didn’t want
me on his job.” (Tr. 89.) Sager described what happened next,

[h]e walked into the building, and I started to walk in, behind him.
And, again, he stopped me in the doorway, and he turned around
and said, again, “I do not want you on my job.”

(Tr. 90.) Sager testified that, at this point, the self-identified foreman was inside the building.
Sager placed himself, “in the doorway.” (Tr. 90.) He reported that, “I never went into the
building. You know, I may have stepped my foot into the doorway of the building.” (Tr. 93.)
Subsequently, Sager retrieved a camera from his car and began taking pictures of the exterior
of the jobsite.

While this incident was ongoing, Coleman received a phone call from one of his
employees.36 Coleman testified that he was told that Sager was “harassing” the caller and
“wouldn’t leave him alone.” (Tr. 235.) He reported that he “suggested” to his employee that he
call the police and “ask them to have them ask him to leave you alone.” (Tr. 235—236.)
Coleman indicated that he did not “direct” his employees to summon the police and that he did
not call them himself. (Tr. 236.)

Evidently someone did call the police, because they arrived at the scene a short while
later. After conferring with the employees, the police told Sager that the foreman did not want
him to enter the building. The officer added that, “I don’t want you going into the building.” (Tr.
93.) Sager promised to comply. He continued to talk to those employees who were eating
lunch outside the site. They ignored him, and he eventually departed.

The Company raises two defenses to the contention that it unlawfully summoned the
police to the New Paltz site. Initially, counsel for the Company correctly observes that,
“[a]lthough there were two employees of the respondent present, there is no testimony as to
who the two individuals were.” (R. Br. to the Board, p. 22.) Indeed, it is clear that they were not
the two principal figures in the Company, Coleman and Bernasconi. Sager was acquainted with
both men. Had they been present, he would certainly have been able to identify them in his
testimony. Thus, it is impossible to ascertain whether the individual who summoned the police
was an agent of the Company. Nevertheless, Coleman clearly testified that he “suggested” that
his employee telephone the police if he were being harassed by Sager. (Tr. 235.) As a result,
recognizing that a suggestion from one’s employer carries weight, I will examine whether this
_________________________
restrict access to their premises as justification for the decision to summon the police. A
decision to summon the police in response to a reasonable perception of a threat of destruction
of one’s property raises a different set of considerations.
36 Coleman testified that it was a foreman named “Charlie.” Sager reported that it was the
smaller of the two employees who was on the phone. The identity of the caller is not material.

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suggestion constituted a violation of the Act.

As previously discussed, at the first step of the analysis, I must determine whether the
employer’s conduct reasonably interfered with Sager’s protected Section 7 rights. It is clear
from Sager’s own account that the employees summoned the police at the point in the events
when Sager appeared to be entering the interior of the jobsite. I readily infer from Sager’s
testimony about his conversation with the police officer that the employees had complained to
that officer that Sager was trespassing. It will be recalled that the officer’s questions to Sager
revolved entirely around the subject of his entry into the structure. I find that it was this aspect
of Sager’s behavior that prompted the call to the police.

Counsel for the Company observes that, in his testimony, Sager “even went so far as
admitting to entering private property.” (R. Br. at p. 8.) I basically agree. Sager did testify that,
“I may have stepped my foot into the doorway of the building.” (Tr. 93.) He readily conceded
that this was not a public place, noting that the tavern was not in operation because it was,
“very—under construction.” (Tr. 90.)

The Board has clearly indicated that not all union activities are protected by the Act,
holding that “[i]t is equally well established, however, that concerted activities that are unlawful
. . . are not protected.” Benesight, Inc., 337 NLRB 282 (2001). The Supreme Court long ago
ruled that persons in Sager’s position have no right of access to an employer’s premises under
the Act.37 Citing the Court’s venerable decision while putting it succinctly, the Board has noted
that, “nonemployee union organizers may be treated as trespassers.”38 Town & Country
Supermarkets, 340 NLRB 1410, 1414 (2004). Having been warned that he was not permitted
inside the building, Sager’s entry into the doorway was either an actual trespass or conduct that
raised a reasonable apprehension of an imminent trespass. As Sager’s conduct in attempting
to enter the building was unprotected, the Company did not violate the Act by summoning the
police in response to that conduct. Loehmann’s Plaza, 316 NLRB 109, 114 (1995), rev. denied
74 F.3d 292 (D.C. Cir. 1996), cert. denied 519 U.S. 809 (1996) (employer’s filing of lawsuit to
enjoin picketing on private property did not violate the Act because the concerted activity was
not protected by the Act.)39

37 NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956).
38 The Board mentioned the exception carved out by the Supreme Court for circumstances
where organizers have no reasonable alternative means to communicate with the employees.
NLRB v. Babcock & Wilcox, infra. No such claim is made here.
39 Having found the conduct to be unprotected, I need not address the second prong of the
Board’s analytical standard, whether the Company had a substantial and legitimate business
reason for summoning the police. I do note, however, that some of Sager’s behavior at the site
would certainly serve to raise a legitimate concern about his intentions in seeking to enter the
building. Sager was taking photos of the exterior. He testified that, after the police interviewed
him, they summoned the building inspector to the site. I infer that Sager had reported alleged
building code violations to them. Commentators have observed that one purpose of a salting
campaign is to ensnare an employer in a web of alleged law violations and attendant legal
costs. See, for example, Starcon, Inc. v. NLRB, 176 F.3d 948, 949 (7th Cir. 1999), and
Hartman Bros. Heating & Air Conditioning, Inc. v. NLRB, 280 F.3d 1110, 1112 (7th Cir. 2002).
Indeed, it will be recalled that Sager boasted to Coleman that the Union’s salting campaign
against Hudson Valley Electric had cost that firm $250,000 in legal fees. I find it to be a
substantial and legitimate business justification for an employer in this circumstance to respond
by taking reasonable steps to enforce a lawful right to exclude persons with such an intention
from its construction site.

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Having determined that an employee of the Company summoned the police in response
to Sager’s unprotected attempt to enter the building after having been told that he was not
permitted access, I conclude that there was no violation of Section 8(a)(1) of the Act by the
Company.

Conclusions of Law

1. By coercively interrogating its employee, John Dickson, and an applicant for
employment, Frank Sylvester, the Company engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.

2. By failing and refusing to consider for hire Frank Sylvester because of his union
affiliation, the Company engaged in an unfair labor practice affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.

3. By discharging its employee, Michael Browne, because of his union affiliation and
protected activities, the Company engaged in an unfair labor practice affecting commerce within
the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.

4. The Company did not violate the Act in any other manner alleged in the complaint.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily discharged an employee, Michael Browne, it
must offer him reinstatement and make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). I will also
recommend the additional ancillary relief that is customary in cases of unlawful termination of
employment.

The remedial issues regarding the Company’s unlawful treatment of Sylvester’s request
for employment present a somewhat thorny question. It must be recalled that the General
Counsel alleged only a refusal to consider Sylvester “[s]ince on or about April 21.” (Complaint,
par. 8(b), GC Exh. 1(g).) Naturally, I will recommend that the Board impose the usual remedies
for such an unlawful refusal to consider Sylvester. The difficulty that arises here concerns the
fact that the evidence demonstrated that the Company hired journeymen electricians on three
occasions after Sylvester sought employment but prior to the filing of the complaint. It is
undisputed that the Company hired Christian Ceasarine on July 15, Robert Carter on July 31,
and Michael Sharpe on August 6. (GC Exh. 2.) It is necessary to determine whether Sylvester
is entitled to some relief based on these subsequent hires.

In addressing this question, I have paid particular attention to the procedural guidance
detailed by the Board in the leading case, FES, 331 NLRB 9 (2000), enf. 301 F.3d 83 (3d Cir.
2002). In her brief, counsel for the General Counsel seeks the Board’s usual remedies for a
refusal to consider violation, including consideration for future job openings using
nondiscriminatory criteria and notification to Sylvester and the Regional Director of all such

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vacancies. Somewhat cryptically, she also requests that Sylvester “be made whole for any
losses suffered as a result of Respondent’s unlawful conduct.” (GC Br. at p. 20.)

It may well be that the General Counsel concedes that the remedy should not include
instatement related to any of the three vacancies that the Company filled subsequent to its
original failure to consider Sylvester. As this is unclear, and because the Board has the
responsibility to provide complete relief regardless of the General Counsel’s position, I will
consider whether there should be any remedial provisions regarding the Company’s three
subsequent hires.

In FES, supra, at p. 14, the Board held that,

[i]f the General Counsel is seeking a remedy of instatement and
backpay based on openings that he knows or should have known
have arisen prior to the commencement of the hearing on the
merits, he must allege and prove the existence of those openings
at the unfair labor practice hearing.40

It is evident that counsel for the General Counsel was aware of the three subsequent
openings at the time the trial began on February 9, 2004. I based this conclusion on General
Counsel’s Exhibit 2, a complete listing of the Company’s hiring from March 2 through December
31, 2003. That document had been subpoenaed from the Company prior to the hearing and
was in the possession of counsel for the General Counsel when the hearing began. It shows
each of the three hires under discussion.

Because the General Counsel was aware of the three hires before the commencement
of the trial in this case and did not seek to amend the complaint to allege any unlawful failure to
hire Sylvester for those vacancies, it is inappropriate to recommend that Sylvester be offered
instatement or backpay arising from those three hires. I note that the Board’s discussion of this
question in FES is grounded in considerations of due process and fairness. In order to prove
entitlement to instatement and backpay, the General Counsel would have to prove an unlawful
failure to hire. A significant part of the analytical test for such a violation is the provision of an
opportunity for the respondent to show that “others who were hired had superior qualifications
and were hired for that reason.” Jacobs Heating and Air Conditioning, 341 NLRB 981, 982
(2004), citing FES. [Internal quotation marks omitted.]

Because the General Counsel alleged only a refusal to consider Sylvester, the Company
was not on notice that it would have to defend against a refusal to hire and was not apprised of
any opportunity to present evidence and argument on the issues that are unique to such a
charge. As a result, I conclude that relief for the refusal to consider violation should be limited to
the usual affirmative order and should not include any remedy related to the 3 subsequent hires
that are established in the record.

Although I will not recommend a make-whole remedy for the 3 vacancies that were filled
between the date of Sylvester’s application and the trial, I will include a make-whole remedy for
any other unlawful failures to hire that may have taken place. In FES, supra, at p. 15, the Board
noted that two situations may exist that would authorize the imposition of make-whole relief at
the compliance stage of these proceedings. It held:

40 The Board has reiterated this requirement very recently in CNP Mechanical, Inc., 347
NLRB No. 14, slip op. at p. 1 (2006).

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If job openings arise after the beginning of the hearing on the merits,
the General Counsel must initiate a compliance proceeding for the
purpose of determining whether the discriminates would have been
selected for the openings in the absence of the proven discriminatory
failure to consider them for employment. The General Counsel must
also initiate a compliance proceeding regarding openings arising
before the commencement of the hearing on the merits that he neither
knew nor should have known had arisen. [Footnotes omitted.]

Of course, at such compliance proceedings the Company will have the opportunity to present
any evidence material to the proper analytical framework for an unlawful refusal to hire
allegation.41

Finally, I will recommend that the Company be ordered to post a notice in the usual
manner.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended42

ORDER

The Respondent, CMC Electrical Construction and Maintenance, Inc., of Wallkill, New
York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Coercively interrogating its employees and its applicants for employment
regarding their union affiliation or their participation in protected, concerted activities or the
affiliation and participation in protected, concerted activities of any other employees or
applicants for employment.

(b) Discharging or otherwise discriminating against Michael Browne or any other
of its employees because of their membership in Local 363, International Brotherhood of
Electrical Workers, AFL—CIO, or any other labor organization or because of their participation
in protected, concerted activities.

(c) Failing or refusing to consider Frank Sylvester or any other applicants for
employment because of their membership in Local 363, International Brotherhood of Electrical
Workers, AFL—CIO, or any other labor organization, or because of their participation in
protected, concerted activities.

(d) 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.

41 In the event Sylvester does become entitled to monetary compensation, it should be
calculated in the manner set forth above relating to Browne’s backpay.
42 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.

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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 Michael Browne full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make Michael Browne whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the manner set forth in the remedy
section of the decision.

(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Michael Browne, and within 3 days thereafter notify him in
writing that this has been done and that the discharge will not be used against him in any way.

(d) Consider Frank Sylvester for any and all future openings of the same or
equivalent type for which he had applied, and base such consideration on nondiscriminatory
criteria.

(e) Promptly notify Frank Sylvester and the Regional Director for Region 2 of any
and all future job openings of the same or equivalent type for which Sylvester had applied.

(f) Make Frank Sylvester whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the manner set forth in the remedy
section of the decision.

(g) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful refusal to consider Frank Sylvester for hire, and within 3 days
thereafter notify him in writing that this has been done and that the unlawful refusal to consider
him for hire will not be used against him in any way.

(h) 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.

(i) Within 14 days after service by the Region, post at its principal place of
business in Wallkill, New York, copies of the attached notice marked “Appendix.”43 Copies of
the notice, on forms provided by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other 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

43 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.”

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copy of the notice to all current employees and former employees employed by the Respondent
at any time since March 21, 2003.

(j) Within 21 days after service by the Region, file with the Regional Director 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.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C. October 10, 2006

____________________
Paul Buxbaum
Administrative Law Judge

JD–58—06
Newburgh, NY
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 coercively question you about your union membership, support or activities or
about the union membership, support, or activities of any other employee or applicant for
employment.

WE WILL NOT discharge or otherwise discriminate against any of you for supporting Local 363,
International Brotherhood of Electrical Workers, AFL—CIO, or any other union.

WE WILL NOT fail and refuse to consider for hire any applicant for employment because of their
support for Local 363, International Brotherhood of Electrical Workers, AFL—CIO, or any other
union.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law.

WE WILL, within 14 days from the date of this Order, offer Michael Browne full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.

WE WILL make Michael Browne whole for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest.

WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Michael Browne, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not be used against him in any way.

WE WILL consider Frank Sylvester for hire for the type of position for which he applied and any
equivalent position using nondiscriminatory criteria, and WE WILL promptly notify Sylvester and
the Regional Director for Region 2 of any such job openings.

WE WILL make Frank Sylvester whole for any loss of earnings and other benefits resulting from
our refusal to consider him for employment, less any net interim earnings, plus interest.

JD–58—06
Newburgh, NY
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful failure and refusal to consider Frank Sylvester for hire, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that the refusal to consider him for
hire will not be used against him in any way.

CMC Electrical Construction and Maintenance, Inc.
(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.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.

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, 212-264-0346.