CNP Mechanical, Inc.

National Labor Relations Board - Board Decisions

May 31, 2006

347 N.L.R.B. 160 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 14
160
CNP Mechanical, Inc. and U.A. Plumbers and Pipefit-
ters Local Union #13. Case 3–CA–23731–2
May 31, 2006
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On June 24, 2004, Administrative Law Judge Margaret
M. Kern issued the attached decision. The Respondent
filed exceptions, and the General Counsel and the Charg-
ing Party filed answering briefs. The Respondent filed
separate replies to the answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. Member Schaumber does not rely on
the judge’s reference to CNP President Natalello’s “undisguised dislike
for the Union” and for Union Organizer Caternolo as a basis for dis-
crediting Natalello, but finds the judge’s credibility resolutions sup-
portable on the record as a whole.
2 Member Schaumber would find that, notwithstanding the Respon-
dent’s antiunion animus, the Respondent did not unlawfully refuse to
hire or consider Union Business Agent James Caternolo because Cater-
nolo “disparaged” the Respondent’s business by informing the Respon-
dent’s customers that the Respondent performed substandard work.
However, aside from the claim made by the Respondent’s president,
Natalello, whose testimony the judge discredited, the Respondent has
presented no evidence that it relied upon those remarks when it refused
to hire or consider Caternolo, i.e., that it singled him out on that basis,
as opposed to refusing to hire or consider him based on his union mem-
bership, as it did with his fellow union applicants. Thus, we find that
Caternolo’s remarks provide no defense to the Respondent’s failure to
hire or consider him.
Contrary to the judge and his colleagues, Member Schaumber does
not find that the Respondent’s refusal to hire or consider James Cater-
nolo violated Sec. 8(a)(3). Caternolo testified that he contacted at least
two school districts where the Respondent was awarded contract bids
and told district officials that the Respondent had performed substan-
dard plumbing work, and Natalello testified that he knew about Cater-
nolo’s disparaging remarks. In Member Schaumber’s view, Cater-
nolo’s accusations are unprotected under Sec. 7. The accusations were
not “for mutual aid and protection” of employees the Union represented
or hoped to represent. Nor are they related to employees’ interests.
See, e.g., Waters of Orchard Park, 341 NLRB 642, 643–644 (2004)
(nurses’ complaints to state agency on behalf of patients were not re-
lated to employees’ interests and thus not encompassed by “mutual aid
and protection” clause); see also Eastex, Inc., 437 U.S. 556, 568 (1978)
(holding that, at some point, the relationship between an activity and
employees’ interests becomes so attenuated that the activity is no
longer “for mutual aid and protection”). The undisputed fact that Ca-
ternolo disparaged CNP to school district officials, an act unassociated
with any protected activity, and that Natalello knew about the remarks,
REMEDY4
The judge found that the Respondent refused to hire or
consider for hire 11 discriminatees, and in the remedy
and order sections of her decision, the judge instructed
the Respondent to offer instatement and other make-
whole remedies to all 11 discriminatees. This remedy
does not conform to current Board law, and we therefore
modify the judge’s remedy, Order, and notice.
Under the Board’s decision in FES, 331 NLRB 9, 14
(2000),5 “[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.” The Board further stated,
“Where the number of applicants exceeds the number of
available jobs, the compliance proceeding may be used
to determine which of the applicants would have been
hired for the openings.” Id. The remaining discrimina-
tees are due the remedy for refusal to consider for hire,
including “a cease and desist order; an order to place the
discriminatees in the position they would have been in,
absent discrimination, for consideration for future open-
ings and to consider them for the openings in accordance
with nondiscriminatory criteria; and an order to notify
the discriminatees, the charging party and the Regional
Director of future openings in positions for which the
discriminatees applied or substantially equivalent posi-
tions.” Id. at 15.
The record in this case proves that the General Counsel
knew or should have known of three openings available
prior to the hearing. We therefore defer to the compli-
ance stage the determination as to which discriminatees
must be offered instatement and backpay. The Respon-
dent has been ordered to reinstate Trevor Claffey to one
of those three positions, and Claffey is presumptively
entitled to reinstatement with backpay pending a contrary
determination at the compliance stage.6 If Claffey is

is sufficient to establish that the Respondent had a legitimate, nondis-
criminatory reason not to hire or consider Caternolo.
3 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
4 We adopt the judge’s order requiring that the Respondent reinstate
Trevor Claffey and make him whole for any loss of earnings or other
benefits. We note, however, that the Respondent may litigate this
remedy at the compliance stage of the proceeding based on Claffey’s
refusal, on July 19, 2002, to accept the Respondent’s unconditional
offer of reinstatement. See Solvay Iron Works, 341 NLRB 208 (2004).
5 Enfd. 301 F.3d 83 (3d Cir. 2002).
6 Claffey was originally hired to, and then discharged from one of
the three available positions. To reinstate Claffey and 3 of the 11 dis-
criminatees would fill 3 positions with 4 employees. Such a result is
CNP MECHANICAL, INC. 161
reinstated, then the compliance stage should determine
which 2 of the 11 discriminatees would have been hired
to the remaining 2 positions. If it is determined that
Claffey is not due reinstatement, then 3 of the 11 dis-
criminatees are due instatement. The remaining dis-
criminatees are due remedies for refusal to consider for
hire, as stated above.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, CNP Mechani-
cal, Inc., Hilton, New York, its officers, agents, succes-
sors, and assigns, shall take the actions set forth in the
Order as modified below.
1. Substitute the following for paragraph 2 of the
judge’s Order.
“2. Take the following affirmative action necessary to
effectuate the policies of the Act.
“ (a) Within 14 days from the date of this order, offer
Trevor Claffey full reinstatement, to the extent that it has
not already done so, to his former job, or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
“(b) Offer instatement to the appropriate discrimina-
tees from the following list, as determined in the compli-
ance stage of this proceeding should have been hired, to
the available positions for which they applied, or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges: James Boehler, Stephen Catalina,
James Caternolo, Steve Cirrincione, Lonnie Keys, Harry
Moses, Robert Muller, John Perticone, Keith Warren,
Richard Williams, and William Yatteau.
“(c) Make whole the discriminatees identified in the
compliance stage of the proceeding as being entitled to
reinstatement and/or instatement into the three available
positions for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy section of the judge’s
decision as amended by the remedy section of this deci-
sion.
“(d) Notify in writing the Regional Director, the
Charging Party, and any of the above discriminatees not
offered instatement when openings arise, and consider
them in a nondiscriminatory manner for these positions
until such time as the Regional Director determines that
the case should be closed.

inconsistent with FES (discussed above) and would be punitive rather
than remedial.
“(e) Within 14 days from the date of this order, remove
from its files any reference to the unlawful discharge of
Trevor Claffey, 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.
“(f) Within 14 days from the date of this order, remove
from its files any reference to the unlawful refusal to
hire, or consider for hire, James Boehler, Stephen Cata-
lina, James Caternolo, Steve Cirrincione, Lonnie Keys,
Harry Moses, Robert Muller, John Perticone, Keith War-
ren, Richard Williams, and William Yatteau, and within
3 days thereafter notify them in writing that this has been
done and that the refusal to hire or consider for hire will
not be used against them in any way.
“(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
fashion, necessary to analyze the amount of backpay due
under the terms of this Order.
“(h) Within 14 days after service by the Region, post at
its office in Hilton, New York, and at all of its jobsites,
copies of the attached notice marked “Appendix.”7 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 3, after being signed by the Respon-
dent’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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or
closed the facility involved in these proceedings, Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since March 19, 2002.
“(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.”

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD162
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union.
Choose representatives to bargain with us on
your behalf.
Act together with other employees for your bene-
fit and protection.
Choose not to engage in any of these protected
activities.
WE WILL NOT tell our employees or employee-
applicants that our policy restricting job applicants from
entering our premises is the way that we remain nonun-
ion.
WE WILL NOT interrogate our employees or employee-
applicants about their union activities.
WE WILL NOT tell our employees or employee-
applicants that they should not talk to, or accept literature
from, union representatives.
WE WILL NOT threaten our employees with discharge
because of their union activities.
WE WILL NOT threaten our employees with reprisals if
they do not report the union activities of other employ-
ees.
WE WILL NOT discharge or otherwise discriminate
against our employees because of their union activities.
WE WILL NOT refuse to hire, or refuse to consider for
hire, employee-applicants because of their union activi-
ties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
as guaranteed by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
order, offer to Trevor Claffey full reinstatement, to the
extent we have not already done so, 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 offer instatement to the appropriate discrimi-
natees from the following list, as determined in the com-
pliance stage of this proceeding should have been hired,
to the available positions for which they applied, or, if
those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges: James Boehler, Stephen Cata-
lina, James Caternolo, Steve Cirrincione, Lonnie Keys,
Harry Moses, Robert Muller, John Perticone, Keith War-
ren, Richard Williams, and William Yatteau.
WE WILL make whole any of the discriminatees identi-
fied in the compliance stage of this proceeding as being
entitled to reinstatement and/or instatement for any loss
of earnings and other benefits resulting from the dis-
crimination against them, less any net interim earnings,
plus interest.
WE WILL notify in writing the Regional Director, the
Charging Party, and any of the above discriminatees not
offered instatement when openings arise, and consider
them in a nondiscriminatory manner for these positions
until such time as the Regional Director determines that
the case should be closed.
WE WILL, within 14 days from the date of the Board’s
order, remove from our files any reference to the unlaw-
ful discharge of Trevor Claffey, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that his discharge will not be used against him
in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to hire or refusal to consider for hire James
Boehler, Stephen Catalina, James Caternolo, Steve Cir-
rincione, Lonnie Keys, Harry Moses, Robert Muller,
John Perticone, Keith Warren, Richard Williams, and
William Yatteau, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
the refusal to hire or consider for hire will not be used
against them in any way.
CNP MECHANICAL, INC.
Aaron Sukert, Esq., for the General Counsel.
Anthony Adams, Esq. (Gates & Adams, P.C.), for the Respon-
dent.
Michael Harren, Esq. (Chamberlain, Damanoa & Greenfield),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me in Rochester, New York, on February 3, 4,
and 5, 2003. The complaint, which issued on October 31,
2002,1 was based upon unfair labor practice charges and
amended charges filed on August 13, September 9, and October
29 by the U.A. Plumbers and Pipefitters Local Union #13 (Un-

1 All dates are in 2002 unless otherwise indicated.
CNP MECHANICAL, INC. 163
ion or Charging Party) against CNP Mechanical, Inc. (Respon-
dent).2
It is alleged that in March and April, Respondent, by Lisa
Legler, violated Section 8(a)(1) by advising an employee-
applicant that Respondent’s posted policy regarding job appli-
cations was a prerequisite to remaining a nonunion shop, by
informing an employee-applicant that he was not to talk to or
accept literature from union representatives, and by interrogat-
ing an employee-applicant about his union activities and sym-
pathies. It is further alleged that in May and June, Respondent,
by Charles Natalello, violated Section 8(a)(1) by interrogating
an employee, threatening employees with discharge and un-
specified reprisals, and requesting that an employee report to
him on the union activity engaged in by other employees. It is
further alleged that between April 1 and 18, Respondent vio-
lated Section 8(a)(1) and (3) of the Act by refusing to consider
for employment, and by refusing to employ, employee-
applicants James Boehler, Stephen Catalina, James Caternolo,
Steve Cirrincione, Lonnie Keys, Harry Moses, Robert Muller,
John Perticone, Keith Warren, Richard Williams, and William
Yatteau. Finally, it is alleged Respondent violated Section
8(a)(1) and (3) on July 12 by terminating employees Steve
Soper and Trevor Claffey.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, the union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Posted Application Policy
The union, through its business agent, James Caternolo, has
been attempting to organize Respondent’s employees for a
number of years and Respondent, through its owner and presi-
dent, Charles Natalello, has resisted these efforts. Natalello
made clear in his testimony his dislike of Caternolo, ostensibly
because of complaints Caternolo has made to Governmental
agencies and contractors alleging Respondent’s failure to pay
prevailing wage rates as required, and alleging that Respon-
dent’s work quality was substandard.
The Union subscribes to the Dodge Report, a publication that
lists construction jobs and those contractors who are successful
in bidding for particular work. Beginning in about February,
Caternolo learned from the Dodge Report that Respondent had
been awarded at least three contracts. On March 13, Caternolo

2 Counsel for Respondent in his brief, moved to correct blanks and
errors in the transcript. That motion is unopposed and is granted. In his
brief, counsel for Respondent also moved that GC Exh. 80 be stricken
from the record or, in the alternative, that the hearing be reopened to
permit Respondent to proffer testimony regarding the exhibit. The
exhibit, obtained from Respondent by counsel for the General Counsel
by subpoena, was received without objection. The motion is therefore
denied.
went to Respondent’s facility accompanied by Gary Swanson, a
representative of the Iron Workers Union. Each had the inten-
tion of applying for a job. When they arrived, they observed a
sign on the window that stated: “Absolutely No Applications
Accepted at CNP Mechanical, Inc. Without An Appointment!
We Consider an Application Without an Appointment in Viola-
tion of the New York State Trespassing Laws.”
Patrician Natalello, wife of Charles Natalello, testified about
the sign that Caternolo and Swanson observed. She explained
that prior to February 2000, Respondent’s offices were in the
Natalello home and the sign was posted on the door because
she was often home alone. When Respondent’s offices moved
its facility, the sign was again posted. According to Mrs. Na-
talello, she didn’t want people coming in because she and
Legler were often alone in the office.
B. Applications for Employment
On March 19, Swanson telephoned Respondent’s office and
taped a conversation with Legler. Swanson testified he asked if
he could make an appointment to submit an application for
employment and Legler stated that they weren’t taking any
applications. She asked Swanson about his experience and he
told her he had performed ironwork, plumbing, and carpentry.
He then asked her about the sign on the window, commenting
that he had never seen a sign like that before. Legler responded,
“We’re not a union shop.” She referred to the sign as “a requi-
site to stay an open shop” and that union people didn’t like
them and tried a lot of things, but that Respondent had a good
program and its employees were loyal. Swanson asked if he
could bring in, mail, or fax a resume, and Legler said they were
not allowed to accept them. Legler testified that in the course of
her conversation with Swanson, he said he was employed by
Mas-Ann, that he was a loyal and dependable employee, and
not union. Legler acknowledged that she told Swanson the sign
was related to Respondent remaining an open shop, but she
denied she made this statement pursuant to any type of instruc-
tion from Natalello. Legler prepared a message slip regarding
Swanson’s call, which she later gave to Natalello. She noted on
the slip that Swanson was looking for a job and she wrote that
he was “loyal-dependable-not union!!” (Exclamation points in
the original). On April 10, Swanson mailed his resume to Re-
spondent. On April 12, he received a letter from Natalello
thanking him for his inquiry, but stating that “at present CNP is
not hiring, interviewing or reviewing for employment.” The
letter further stated that the company’s policy was to maintain
resumes on file for 30 days after which an applicant could send
another resume. Swanson did send a second resume.
On March 28, Caternolo telephoned Respondent’s office and
taped a conversation with Legler. Caternolo identified himself
as being from the union and said he would like to set up an
appointment to put in an application for employment. He also
said he had a lot of men interested in obtaining jobs. Legler told
him, “We also have a lot of men.” Caternolo told Legler to
have Natalello call him and she said she would. When Legler
told Natalello about the conversation, Natalello told her that in
the future she should tell callers the company was not hiring,
but that applicants were welcome to send in their resumes. On
about that same day, Caternolo received a call from Ray Na-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD164
talello, the brother of Charles Natalello.3 Ray told Caternolo he
was returning his call because his brother was busy. Caternolo
asked Ray how he would go about applying for a job and Ray,
in turn, asked Caternolo when was the last time Caternolo was
“a hands-on plumber.” Caternolo responded it was about five
years earlier and Ray questioned his enthusiasm for working as
a plumber again. They spoke for a few more minutes and Ray
told Caternolo to mail in a resume and they would consider it
and keep it for 30 days. Caternolo mailed a resume to Respon-
dent on April 1.
William Yatteau is employed as the apprentice coordinator
for the union. On March 28, in Caternolo’s presence, Yatteau
called Respondent’s office and spoke to Legler. He identified
himself as a union applicant looking for a job. He told Legler
he would like to set up an appointment for an interview and she
said they currently were not hiring, but she would take his
name and number, which she did.
Between April 1 and 9, similar calls were placed to Respon-
dent’s offices by James Boehler, Stephen Catalina, Steve Cir-
rincione, Lonnie Keys, Harry Moses, Robert Muller, and John
Perticone. Each person inquired about employment, and each of
them mentioned he was a member of the union.
The parties stipulated that Respondent received resumes for
the following individuals in April and May: Boehler (mailed
April 4), Catalina (mailed April 4), Caternolo (mailed April 2),
Cirrincione (mailed May 1), Keys (mailed April 4), Moses
(mailed April 9), Perticone (mailed April 4), Warren (mailed
April 4), and Yatteau (mailed April 4).
On April 9, Caternolo called Respondent’s office, identified
himself, and spoke with Legler. He asked her a question about
the resumes and Legler responded, “Let me look, because I
have two separate piles.” That same day, Natalello sent certi-
fied letters to Boehler, Catalina, Caternolo, Cirrincione, Keys,
Moses, Perticone, Warren, and Yatteau thanking them for their
inquiries, but stating that “at present CNP is not hiring, inter-
viewing or reviewing for employment.” Natalello wrote that
their resumes would be kept on file for 30 days. Identical letters
were sent to Williams and Muller on April 25.
C. Legler’s Job Responsibilities
Legler testified she has been an administrative assistant for
Respondent for 3 years. She described her job in the following
terms: “I help to estimate jobs . . . I dictate or write letters that
Chuck dictates. I answer the phone. I do paperwork, a lot of
paperwork.” Legler has no responsibility regarding hiring or
firing employees or evaluating job applicants. She denied deal-
ing with timecards or the payroll. She testified that when she
answers the phone, she writes the message in a phone log. She
also places messages from the answering machine on the phone
log. When she was hired, she was instructed to take phone mes-
sages and give them to Natalello.
Natalello testified that Legler’s title is assistant to the project
managers and her responsibilities are mostly secretarial. She

3 At the hearing, counsel for the General Counsel moved to amend
the complaint to allege Ray Natalello as an agent of Respondent within
the meaning of Sec. 2(13) of the Act. The amendment was allowed over
Respondent’s objection. To avoid confusion, I will refer to Ray Na-
talello as Ray.
answers the office phone and sorts quotes from vendors. She
does not have authority to hire, fire, or discipline employees.
When she was hired, his only instruction to her regarding an-
swering the phone was to give him a thorough message.
James Montinarelli testified on direct examination that “as I
became superintendent I had noticed that Lisa was responsible
for purchasing materials for the job, payroll, and estimating . . .
She would estimate the cost that a project would take to per-
form.” In addition, she answered the phone. On cross-
examination, however, Montinarelli testified that after he began
working for Respondent, he never went to the office so he
never saw Legler actually performing estimating work or pay-
roll. He only knew that she answered the office phone.
Louis Erbach was employed by Respondent from September
1998 to July 2001. He testified when he needed to contact Na-
talello, Legler would locate him. He also testified he turned his
employees’ timecards into Legler.
Patricia Natalello testified that she, not Legler, does the pay-
roll, bookkeeping, and financial reports for the company. She
testified it is Legler’s responsibility to type letters, answer the
phone, take messages, and maintain the books for the jobs the
company performs.
D. Legler’s Handling of Phone Inquiries
Legler testified that prior to February, she rarely received
phone calls from job applicants, but that beginning in February,
she began receiving a number of these types of calls. In late
February or March (or as she later testified, in late March or
early April), Natalello told her to respond to these calls by say-
ing that the company was not hiring and that the applicant
should send a resume.
Natalello testified that in about the end of March, Legler told
him she was getting phone calls from persons inquiring if the
company were hiring. Natalello told Legler, “let them know
that we’re not hiring, we’ve got no more positions open.” Na-
talello testified, “We were getting bombarded with phone calls,
completely and totally uncommon to our business. It’s never
happened before. Number one, our work force was completely
filled, we didn’t need anybody else. I believe I may have con-
sulted my attorney on this, at that point.”
Natalello met with his attorney and told him how he had
conducted hiring in the past. Counsel asked Natalello what he
normally did with resumes when he was not hiring, and Na-
talello said he typically did not receive resumes. Counsel then
asked how he handled applications when he was not hiring, and
Natalello said he kept them for future consideration. After
meeting with his attorney, Natalello instructed Legler if she
received calls from individuals seeking employment she was to
tell them they were not hiring anymore but that they could send
in their resumes.
E. Respondent Hires Soper
1. Soper’s version
Soper is a plumber with 18 years experience. He testified
that in mid-February, and again in late March or early April, he
called Respondent’s office and left messages that he knew
Andy McDermott, a superintendent for Respondent, and that he
was interested in working for Respondent. In about early April
CNP MECHANICAL, INC. 165
he received a phone call from Natalello who said he had gotten
Soper’s messages and that McDermott had good things to say
about him. Natalello said he would be in touch. Soper asked if
they could meet, and Natalello agreed to meet on April 6. At
this meeting, Natalello told Soper that he had a job if he wanted
one. He said it might be a week or it might be a month, but that
he had a lot of work and was just waiting for the jobs to begin.
A few weeks after the April 6 meeting, Natalello called him
and said he wanted to meet with him on April 25. He met on
that day with Natalello and James Montinarelli, another job
applicant. In Soper’s presence, Natalello told Montinarelli he
would start work on Monday, April 29 at the Irondequoit
School, and he told Soper he would begin work on April 30 at
the Leroy Central School. Soper was given paperwork to fill
out and sign. For “date of contact” Soper wrote “2-12-02” and
for “date of hire” he wrote “3-11-02.” As to why he entered
these dates, Soper testified, “Because Mr. Natalello told me to.”
Soper’s last day of employment with Mas-Ann was April 26,
and his first day of employment with Respondent was April 30.
2. Respondent’s version
Paul Battaglia was employed by Respondent as a plumber
for a year and a half. He testified that in February he received a
call from Soper, whom he knew from working together at Mas-
Ann. Soper said things weren’t going well at Mas-Ann and he
was looking for work. Battaglia gave Soper Natalello’s number
and told him he should call because Natalello was hiring.
Natalello testified that beginning in February, he decided he
would have to hire additional employees. He was receiving
phone calls from individuals looking for work, and he was
hearing from his own employees of people they knew who
were looking for work. Soper was recommended by McDer-
mott and Battaglia and he called Soper and met with him in his
office at the end of February. He told Soper about the company,
“what I had to offer, and the jobs I had just recently won . . . I
asked him if he wants to come aboard, we would be prepared to
take him aboard.” Soper responded that he had to talk to his
wife about it and that he would call him back. In the first week
of March, Soper called Natalello and said he had made the
decision “to come aboard.” Natalello said they would get to-
gether at a later time, and they met about a week later again at
the office. Natalello told Soper he had the job and that he would
start “as soon as work broke.” Soper said it was not a problem
because he was still working for Mas-Ann. Natalello gave
Soper an employment package with forms to fill out, and Soper
took the package, shook hands with Natalello, and left. He did
not fill out the paperwork at that time.
Natalello testified that at the end of April he called Soper to
come into the office with Montinarelli to complete the em-
ployment package paperwork because work was going to start
the following week. When Soper asked him what date to put
down for the date of hire, Natalello told him to write the first
week in March.
Battaglia testified that in early March, Soper left a message
for him stating that he had made contact with Natalello and that
he had a job. On about March 18, when Battaglia returned from
vacation, he called Soper and Soper thanked him for getting
him a job with Respondent. Soper said that Natalello had hired
him and that he would be starting, “when the weather broke.”
Natalello denied meeting with Soper on April 6. He testified
he could not have met with Soper that day because he was in
North Carolina performing a job.
Respondent’s payroll records show April 30 as Soper’s date
of hire.
F. Respondent Hires Claffey
1. Claffey’s version
Claffey, a plumber with 15 years experience, also worked for
Mas-Ann. He testified that in late March, he called Respon-
dent’s office to inquire about employment and spoke to Na-
talello. They arranged to meet on April 1. At that meeting, Na-
talello told Claffey he had work coming up but that due to rain,
it might be 2 or 3 weeks away. Natalello expressed an interest
in hiring Claffey, and Claffey expressed his interest in being
employed.
On May 4, Claffey and Natalello met again and Claffey
filled out employment forms. Under “date of contact” Claffey
wrote “1. 3-1-02 talked to Chuck. 2. 3-7-02 to report on future
date.” For “date of hire” Claffey wrote “3-13-02.” Claffey then
signed the form and dated it May 4. Claffey testified he listed
March 13 as his hire date because he “was asked to write it by
Mr. Natalello.” At the conclusion of the meeting, Natalello told
Claffey he would call him in a few days to begin work.
Claffey began working for Respondent on about May 6.
2. Respondent’s version
Natalello testified he first met Claffey, who had been rec-
ommended by Soper and Battaglia, at the end of February, in
the parking lot of his office. He told Claffey he had great rec-
ommendations, but that he was told Claffey had an attendance
problem. Claffey said that was caused by the fact that his wife
had gotten a job, but that it would not be a problem. Claffey
called a few times, and they next met at the beginning of March
again at the office. Natalello gave him employment forms to fill
out and told him he had a job. Claffey asked when he could
start and Natalello told him all the jobs were on hold because of
wet weather. Natalello told him he expected the jobs to begin in
April. In about the end of March, Natalello received a call from
Claffey stating he was filling out the forms and Claffey asked
him when he was coming to work and what dates should he put
on the form. Natalello told him to write March 13.
G. Respondent Hires Montinarelli
1. Montinarelli’s version
Montinarelli is a plumber with 13 years experience and in
the 6 years prior to the events of this case, he worked for Mas-
Ann as a plumber and job foreman. He testified that in early
February, he called Andy McDermott, a superintendent for
Respondent with whom he had previously worked at Mas-Ann.
Montinarelli told McDermott Mas-Ann was having financial
difficulties and he was not certain the company would continue
operating. He said he was interested in obtaining employment
with Respondent. About 2 weeks after his conversation, Monti-
narelli called Respondent’s office and left a message on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD166
answering machine stating he was interested in working for
Respondent.
Montinarelli testified that in early April, he received a call
from Natalello who asked if he were still interested in working
for Respondent and Montinarelli said yes. Natalello said,
“Okay, I do not have anything right now, but I will get back to
you.” On April 22, Montinarelli went to Respondent’s office
and spoke with Legler. He told her he had spoken to Natalello
earlier in the month. Legler asked him whom he worked for,
and he told her Mas-Ann. She asked if he were affiliated with
the Union and he said he was not. She asked him how he felt
about the Union and he said he had no feelings about it either
way. Legler responded, “Well, good, we have our hands full
here with the union.” She then told him the company policy
was that if a union representative comes onto a jobsite, employ-
ees should walk away from them. If they hand out literature,
employees should hand it back. If they throw the literature on
the ground, employees should pick it up and give it back.
Montinarelli testified that on April 25 he received a phone
call from Natalello telling him to come to the office the next
day after work. Natalello said that as Montinarelli and Soper
were both working for Mass-Ann, Montinarelli should bring
Soper along.
On April 26, Montinarelli, Soper, and Natalello met in Re-
spondent’s office. Natalello told them about the projects where
they would be employed and he gave them paperwork to fill out
and sign. Montinarelli testified he filled out the cover page
entitled “employee information,” signed it, and dated it April
26, 2002. Under “date of contract” he entered the date
“2/11/02” and under “date of hire” he wrote “March 18, 2002.”
He testified he had been “instructed” by Natalello to enter these
dates: “As I was filling out the form he just said to pick a date
in February for contact and pick any date in March for date of
hire.” Since Montinarelli did not have a calendar in front of
him, he jokingly asked Natalello, “Well, what if that date is a
Sunday, should we say we met in church?” According to Mon-
tinarelli, Natalello also told Soper to pick a date in February for
contact and a date in March for hire. He began working for
Respondent on April 29.
2. Respondent’s version
McDermott testified that on about February 13, Legler told
him that Montinarelli had called the office looking for work
and she asked him to find out what Montinarelli was up to. He
called Montinarelli and told him Respondent was a decent
company to work for. Over the following 3 or 4 weeks, Monti-
narelli called him on two or three occasions asking if he were
going to be hired.
Natalello testified that Montinarelli called him in mid-
February about a job. Natalello spoke to McDermott and
Battaglia and they both gave Montinarelli very good recom-
mendations. According to Natalello and Legler, Natalello met
with Montinarelli in his office at the end of February. Natalello
testified he told Montinarelli that he was interested in him and
“he certainly could come aboard with us.” Montinarelli told
him that he could not leave Mas-Ann right away because he
was running a job for them, but they agreed to keep in touch.
Natalello gave Montinarelli employment forms to take with
him and told him to complete the forms and return them before
he started working for Respondent.
Natalello testified he and Montinarelli met again in the office
in mid-March. Montinarelli asked when he would be starting
work and Natalello said he did not know because he had just
returned from being out of town and he would have to visit the
jobsites. He told Montinarelli to give notice to Mas-Ann be-
cause he would start working for Respondent by the end of
March. Montinarelli asked Natalello what date to fill in as his
hire date on the employment forms, and Natalello told him to
write in the middle of March.
At the end of April, Natalello called Montinarelli and told
him that he and Soper should come to the office, drop off their
employment forms, and that they would begin work the follow-
ing week.
Legler testified in about mid-March, Natalello called her and
said he would be late for a meeting with Montinarelli at the
office. He asked Legler to stay in the office until Montinarelli
arrived. When Montinarelli arrived, Legler asked him where he
was currently working and, according to Legler, Montinarelli
told her he was employed on the jail job. She asked how it was
going and he said it was not going very well because the union
was “messing with them.” Legler denied asking Montinarelli
any questions about his union sympathies. Nor did she tell him
of any company policies concerning unions.
Legler testified she spoke with Montinarelli by phone on
March 26, and prepared a phone message. The message stated
that Montinarelli had called and that he told Mas-Ann that he
was leaving on the 15th.
Respondent’s payroll records reflect Montinarelli’s hire date
as April 29. He never provided Respondent with a resume.
H. Respondent’s Payroll Records
Patricia Natalello testified Respondent utilizes a company
called Paychex to do payroll. She notifies Paychex of new hires
only after they have begun working, when she calls in their
hours. Paychex then assigns the employee a number, and de-
termines the appropriate deductions. Natalello denied providing
Paychex with the specific dates of hire for Montinarelli,
Claffey, or Soper, and testified she did not know from where
Paychex obtained that information, or how they determine em-
ployee payroll numbers.
I. Respondent’s Hiring Pattern
Natalello testified that after his meeting with Montinarelli in
March, he “was done” hiring at that time. Prior to March, he
had received calls from other Mas-Ann employees, but he de-
nied having received any calls for employment from individu-
als who identified themselves as from the union. At the end of
March, Legler told him she was still getting calls from people
looking for work and he told her to tell the people that they
were not hiring and no positions were open. Even after Monti-
narelli, Soper, and Claffey left his employ he did not hire any-
body to replace them because, as he explained, the jobs were
“just starting to wind down.”
J. Events of May 1 and 2
Soper testified that on May 1, his second day of employment
with Respondent, Caternolo came onto the Leroy jobsite where
CNP MECHANICAL, INC. 167
he was working and spoke to him. The next day, Natalello
came to the site and told Soper he understood a union represen-
tative had been on the site talking to him. Soper said yes, and
Natalello said, “Well, the union is not our friend. CNP is one
big happy family. I can obviously not tell you who you can talk
to. But if you continue talking to a union representative then we
will have to reevaluate your position in this company.” Soper
testified that shortly after this conversation, he heard Natalello
tell the construction manager on the site that the Union was not
allowed to talk to any of his employees and that union represen-
tatives were to be escorted off the site.
According to Natalello, when he went to the jobsite it was
Soper who told him that Caternolo had been there. Natalello
asked Soper if he had reported Caternolo’s presence to the job
superintendent and Soper said he had not. Natalello testified,
“That’s when I advised him of the policies on the job site, that
all visitors are to be signed in or acknowledged.” Natalello
denied threatening Soper for talking to Caternolo.
Natalello testified that at a meeting of his employees, Robert
Coffta, one of his superintendents, asked him what they were to
do if they were approached by a union representative on the
job. According to Natalello, he told the assembled employees
that union representatives had the right to speak to them as long
as they were not interfering with their work. Natalello could not
recall the date of this meeting.
K. Events of June 10
Montinarelli testified that on June 10, Natalello came to the
Irondequoit site where he was working and they spoke in the
job trailer. Natalello told him, “I just want to let you know at
this time there will be union personnel entering the job site.
Because now that there is a union contractor performing work
on the site they are allowed on the job. And I want to tell you
that I want to know if yourself or any other employee talks to
the union representative. I want to know when, where and how
long. If you don’t tell me, someone else will. Then I will know
which side of the fence you are really on.”
Natalello testified that on an occasion in April or May, Mon-
tinarelli told him that Caternolo had visited the Irondequoit site.
Natalello asked him if he had Caternolo sign in when he ar-
rived, and he told Montinarelli it was important that all visitors
sign in and report to the office. According to Natalello, Monti-
narelli asked if he, Montinarelli, could speak to Caternolo and
Natalello told him, “I don’t care what you do, as long as you do
it on your own time.”
L. Events of July 11 and 12
Caternolo told Montinarelli, Soper, and Claffey on July 11
that he had jobs for them with union contractors and that they
would become members of the union. He told Claffey he
wanted him to go to the Irondequoit site the following morning
and begin an organization drive among Respondent’s employ-
ees by distributing literature and union shirts to employees
before working hours. He told Montinarelli that he should call
Natalello and tell him that Claffey was distributing union litera-
ture. He told Soper he should report for work the following day
and then quit his employment. He told Soper, however, he
should complete the workday.
At about 6:20 a.m. on July 12, Caternolo met with Claffey and
Montinarelli at Claffey’s house and he gave Claffey union shirts,
buttons, and stickers to distribute. Claffey lived about one to two
miles from the jobsite. Caternolo told Montinarelli to go to the
jobsite with Claffey to witness him distributing the materials and
that he should follow Natalello’s earlier instruction to notify
Natalello of any union activity on the site. Montinarelli and
Claffey left Claffey’s house at about 6:30 a.m. and traveled to the
Irondequoit site. They arrived at about 6:40 a.m. Two of Respon-
dent’s employees were there at the time and Claffey gave them
pamphlets and stickers. One of the employees commented that
Natalello would be angry. At about 6:55 a.m., the employees
went to their workstations and began working.
According to Montinarelli, at about 7:30 a.m., he called Na-
talello and told him Claffey had come to work wearing a union
shirt and that he had distributed union information to workers
before work began. Natalello said he could not believe it and
told Montinarelli to tell Claffey to return his tools and to report
to the office. Montinarelli immediately conveyed the message
to Claffey and Claffey cleaned up his work place, returned his
tools, and left the site at about 8 a.m.
Legler identified a message dated July 12 at 7:08 a.m. from
Montinarelli to Natalello. The message was that Claffey was
not at his workstation and that Natalello should call him as soon
as possible. Natalello testified that at about 7:20 a.m. he re-
ceived a call from Montinarelli, who told him Claffey was han-
ding out union literature. Natalello asked if Montinarelli had
given Claffey permission to distribute the literature and Monti-
narelli said no. Montinarelli also said that Claffey was not at his
workstation. Natalello told Montinarelli to tell Claffey to grab
his tools and “get his butt to the office, I’ll see him at 8:00
a.m.”
Natalello testified he wanted Claffey to come to the office
that morning because he was going to transfer him to a different
worksite with a different supervisor. He explained that Claffey
had a history of tardiness and absenteeism with a previous em-
ployer, and that on May 28 and June 6, Natalello had put letters
in Claffey’s file regarding his failure to report to work on time.
Natalello testified he had also spoken to Claffey about these
infractions. Natalello felt Claffey was a good worker, but he
knew Claffey and Montinarelli were friends and he thought it
was possible that Montinarelli was not properly supervising
Claffey.
Montinarelli testified Respondent’s office is 40 miles, or a
45-minute drive, from the Irondequoit site. Natalello testified it
is only a 30-minute drive.
Claffey testified that when he left the Irondequoit site that
morning, he stopped at home to get some money and then he
stopped for gas. He was also delayed by road construction, and
he did not arrive at Respondent’s office until sometime between
9 a.m. and 9:15 a.m. As he pulled in to the parking lot, Na-
talello was in his car preparing to leave. Natalello returned to
the lot, got out of his truck and told Claffey he had broken com-
pany policy. When Claffey asked what he was talking about,
Natalello said he had a meeting to go to and he was already late
because he had been waiting for Claffey. Claffey said he was
sorry and asked what was going on. Natalello told him, “I do
not want to see you on any of my job sites. If you want to talk
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD168
to me, you are going to have to call to make an appointment
with me.” Claffey said, “I am going on an unfair labor practice
strike” and Natalello drove away. The unfair labor practice that
he was referring to was his belief that he had been fired for
distributing union literature on the job.
Natalello testified that Claffey pulled into the parking lot at
9:15 a.m., jumped out of his truck, and said, “Chuck, this isn’t
personal.” Natalello asked him what he was talking about, and
he said he was going on a ULP strike. Natalello again asked
him what he was talking about and said he did not know what a
ULP strike was. Claffey got into his truck to leave and Na-
talello told him he should not return to work until meeting with
him on Monday morning, and that he should call Legler to
make an appointment to speak to him. According to Natalello,
Claffey left and he went to his appointment.
Legler testified that sometime after 9 a.m., she saw Claffey
drive very quickly into the parking lot. Natalello got out of his
truck and she saw the two men speaking but she could not hear
what was being said other than a reference by Claffey to “some
letters.” She also heard Natalello say he “didn’t understand.”
She saw Claffey storm away in his truck. Natalello shrugged
his shoulders and drove away.
Montinarelli testified that later that morning, Natalello called
him and asked if Claffey had returned to the Irondequoit site.
Montinarelli said he had not. Natalello told him if Claffey
showed up at the site, he was to be told that he was not allowed
to be there and that he would be removed by the police. Ac-
cording to Natalello, at about 10:20 a.m., he received a call on
his cell phone from Montinarelli who asked what had happened
with Claffey. Natalello responded nothing. Montinarelli asked
then why was Claffey not at the jobsite and Natalello said he
did not have time to meet with Claffey, as he had wanted. Mon-
tinarelli said that was “bull.” Natalello said he wanted to talk to
Claffey before he went to any other jobsite. Montinarelli said
that it was not fair, that it was wrong, and that he was on a ULP
strike too.
At 11:30 a.m., Caternolo arrived at the Irondequoit site and
told Montinarelli to call Natalello and tell him that he, Monti-
narelli, was going out on an unfair labor practice strike. At
about noontime, Montinarelli placed the call. He asked Na-
talello why Claffey was not returning to the job and Natalello
asked Montinarelli if he were representing Claffey. Monti-
narelli said he did not represent Claffey but that Claffey was a
good friend of his and he didn’t understand what was going on.
Montinarelli said of Claffey, “He didn’t break any rules or any
laws. I need him here.” Natalello said if he needed people at the
job he would get him people. Montinarelli said, “I do not feel
what you are doing is fair. I am leaving this job on an unfair
labor practice strike.”
Soper testified that he reported for work at 7 a.m., his regular
time. He testified he told Robert Coffta, the job superintendent,
that he was quitting to go work for the union and that would be
his last day. Coffta said he would have to call Natalello because
he normally did not allow employees to work for the day. Soper
said he would be at his workstation if Coffta wanted to speak
with him. About 10 minutes later, Coffta approached Soper and
made a gesture of his thumbs out and over his shoulders, like a
baseball umpires’ sign for out. He said he had just gotten off
the phone with Natalello and that Natalello wanted Soper to
leave. Soper picked up his tools, shook Coffta’s hand, and left
the site.
Coffta testified that Soper came into his office at 7 a.m. and
told him “that he was quitting, and was going to seek employ-
ment elsewhere.” Coffta said he was sorry to lose him because
he was a good employee. Soper then asked, “Should I stay or
go home?” Coffta said he didn’t know and that he would call
Natalello, but in the meanwhile, Soper should pick up his tools.
Coffta called Natalello and told him what Soper had said, mak-
ing no mention of the union because Soper had not mentioned
the union to him. Natalello asked if Coffta had a job that Soper
could start and finish that day, and Coffta said he did not as
Soper had finished up a job the day before. Natalello said that
in that case, Coffta should let Soper go home. After Soper got
his personal belongings and was leaving, Coffta asked him
what he was going to do, and Soper said, “I have 11 years left,
I’m probably going to join the union.” Coffta wished him good
luck, and he left. According to Coffta, that was the first time
Soper mentioned the Union to him.
Legler identified a telephone message from Coffta for Na-
talello that she took at 7 a.m. on July 12. The message read,
“Needs to talk to you. Steve Soper is quitting. Please call
ASAP.” Legler called Natalello and gave him the message.
Natalello testified he received a call from Coffta who told
him Soper had just quit. He asked Coffta when Soper was leav-
ing and Coffta said Soper wanted to leave that day. Natalello
asked if Coffta had a job that Soper could start and finish that
day, and Coffta said he did not, and that Soper had finished a
job the day before. Natalello told Coffta, “then let him go.”
Natalello testified that in the past when employees told him
they were quitting, his reaction has depended on the nature of
the job the employee was working on and the amount of work.
One named employee told him he was leaving to go with the
union. He was the only employee working at a job with a super-
intendent and “they were bombed with work.” Natalello asked
him how long he could stay, and he said he could stay 2 weeks.
Natalello only needed him for one week, and the employee left
a week later.
M. Exchange of Letters
By letter dated July 13, Caternolo advised Natalello that
Claffey, Montinarelli, and Soper were unfair labor practice
strikers as of July 12, and that charges were filed with the
Board in that regard. On July 16, counsel for Respondent wrote
to Caternolo stating that Caternolo’s letter was the first Re-
spondent knew that Soper was on strike. Counsel wrote,
“[Soper] had simply advised the company that he was quitting.”
The letter further stated that although Montinarelli and Claffey
did tell Natalello that they were going on a ULP strike, they did
not state what ULP they were striking about. He continued,
“Nevertheless, CNP offers to reinstate all three gentlemen to
their former positions immediately if they choose to return to
work.”
Caternolo responded, in relevant part:
We feel that the workers will be subjected to more il-
legal activity within the company, and that it will be a cor-
rosive environment to try and form a union at this time.
CNP MECHANICAL, INC. 169
Should CNP Mechanical be wiling to discontinue any
and all unfair labor practices being committed such as in-
terrogation, intimidation, among other unlawful acts, the
above referenced offers will be considered.
IV. ANALYSIS
A. Legler’s statements
It is alleged Respondent violated Section 8(a)(1) of the Act
by the statements made by Legler to Swanson on March 19,
and to Montinarelli on April 22. The initial inquiry is whether
Legler is an agent of Respondent within the meaning of Section
2(13) of the Act. An employer may properly be held responsi-
ble for the conduct of an employee as an agent where, under all
the circumstances, employees would reasonably believe that the
employee was reflecting company policy and acting on its be-
half. Kosher Plaza Supermarket, 313 NLRB 74 (1993). The
party alleging agency status bears the burden of proof on the
issue, in this case, counsel for the General Counsel.
The evidence establishes that Legler was often the only indi-
vidual in Respondent’s office and she was the person desig-
nated by Respondent to respond to all initial inquiries from
individuals seeking employment. The Board has found employ-
ees in similar circumstances to be agents of their employers. In
GM Electrics, 323 NLRB 125, 126 (1997), a secretary was
found to be an employer’s agent when she was often the only
person in the office, distributed and collected job applications,
and discussed hiring needs with applicants. Citing Southern
Bag Corp., 315 NLRB 725 (1994), the Board reasoned that
applicants “would reasonably believe that [she] could speak
and act on matters concerning Respondent’s handling of job
application procedures and that her statements about Respon-
dent’s handling of job applications would likely reflect com-
pany policy.” Similarly, in Diehl Equipment Co., 297 NLRB
504, fn. 2 (1989), the Board found agency status where the
bookkeeper/secretary’s job “routinely involved handing job
applications to individuals and receiving the completed applica-
tions from them. Consequently, Respondent placed [her] in a
position in which she had the apparent authority to provide
information and to answer questions.”
Based on the foregoing principles, I find counsel for the
General Counsel has sustained his burden of establishing that
Legler was an agent of Respondent within the meaning of Sec-
tion 2(13) of the Act. On March 19, when Swanson asked
Legler about the sign on the window, she told him that they
weren’t a union shop and the sign was “a requisite to stay an
open shop.” This statement had a reasonable tendency to coerce
employees in the exercise of their Section 7 rights. GM Elec-
trics, supra, KSM Industries, 336 NLRB 133 (2001). An em-
ployee hearing this statement could reasonably assume that
working for Respondent and joining a union were not compati-
ble. Legler’s statement therefore violated Section 8(a)(1) of the
Act.
With respect to Legler’s statements on April 22, Montinarelli
testified that Legler asked him if he was affiliated with the un-
ion and, when he said that he was not, she asked him how he
felt about the union. She also told him that the company policy
was that if union representatives came on the jobsite, he should
walk away from them. She said if they handed him literature he
should hand it back, and if they threw literature on the ground,
he should pick it up and give it back to them. Legler denied
making any such statements. According to Legler, she asked
Montinarelli, “How’s it going?” and he volunteered that it
wasn’t going well because the union was “messing with them
[at Mas-Ann].”
I found Montinarelli to be an entirely credible witness. His
demeanor was straightforward and he was equally responsive
on both direct and cross-examination. In addition, I find it
highly unlikely that Montinarelli would volunteer this statement
to Legler, especially since there is no evidence that Mas-Ann
was having labor difficulties. In contrast, Legler was not be-
lievable. She often admitted to making statements only after
being confronted with recordings and transcripts of previous
statements. She was overly-careful on cross-examination and
gave the impression of being more concerned about making a
mistake than giving an honest recitation of events. I therefore
credit Montinarelli’s version of this conversation and find
Legler’s statements violated Section 8(a)(1) of the Act.
B. Natalello’s Statements
It is alleged that Respondent, by Natalello, on about May 2,
violated Section 8(a)(1) of the Act by threatening Soper with
discharge if he spoke to a union representative. Soper testified
that the day after Caternolo visited his jobsite, Natalello came
to the site and told Soper he understood that a union representa-
tive had been at the site. Soper said yes. Natalello then told him
the union was not their friend and that although he could not
tell Soper whom he could talk to, if Soper continued to speak to
the union people, Natalello would have to reevaluate Soper’s
position in the company. Natalello denied making any such
statements. Rather, Natalello testified that he asked Soper if he
had reported Caternolo’s presence to the job superintendent,
and when Soper said he had not, Natalello told him that all
visitors had to sign in.
I credit Soper’s testimony as clearly more credible than Na-
talello’s. Soper had been working for Respondent only a few
days before this incident and I find it highly unlikely that he
would voluntarily tell Natalello about Caternolo’s presence on
the jobsite the day before, especially considering the amount of
time he spent seeking employment with Respondent. Further, I
found Natalello to be a generally incredible witness. He is pos-
sessed of an undisguised dislike for the union and for what he
perceives as Caternolo’s interference with his attempts to ob-
tain jobs. His bias was manifestly obvious during his testimony.
I therefore credit Soper’s testimony over that of Natalello, and I
find Natalello’s statements to Soper about Caternolo’s presence
at the jobsite, and his clear threat that Soper’s job would be in
danger if he continued to speak to union representatives, vio-
lated Section 8(a)(1) of the Act.
The complaint further alleges a similar violation by Na-
talello, but this time involving Montinarelli on June 10. Monti-
narelli testified that on that day, Natalello came to the jobsite
and told him that since there was a union contractor on the site,
union representatives were permitted on the site. Natalello told
Montinarelli he wanted to know if he or any other employee
was speaking to union representatives. According to Monti-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD170
narelli, Natalello added, “If you don’t tell me, someone else
will. Then I will know which side of the fence you are really
on.” Natalello’s version of this conversation was that when
Montinarelli told him that Caternolo had been at the jobsite,
Natalello told him that it was important that all visitors sign in.
When Montinarelli asked if he could speak to Caternolo, he
replied that he didn’t care what he did, as long as he did it on
his own time. For the same reasons as stated above, I found
Montinarelli credible and Natalello not credible. I find Na-
talello’s statements violated Section 8(a)(1) of the Act.
C. Soper and Claffey
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board established an analytical framework for deciding cases
turning on employer motivation. The General Counsel must
first persuade, by a preponderance of the evidence, that an em-
ployee's protected conduct was a motivating factor in the em-
ployer's decision. If the General Counsel is able to make such a
showing, the burden of persuasion shifts to the employer to
demonstrate that the same action would have taken place even
in the absence of the protected conduct. The elements com-
monly required to support a finding of discriminatory motiva-
tion under Section 8(a)(3) are union activity, employer knowl-
edge, and employer animus. Sears, Roebuck & Co., 337 NLRB
443 (2002) and cases cited.
It is not disputed that when Soper reported for work on the
morning of July 12, he told Coffta he was quitting his employ-
ment with Respondent but was willing to work for the balance
of the day. There is a dispute as to whether, in that initial con-
versation, Soper told Coffta he was quitting to go work for the
union. Regardless of whether Soper mentioned the union at that
point, Coffta’s credible and uncontradicted testimony was that
there was no work assignment that Soper could start and finish
in 1 day, and it was for that reason that Soper was sent home. I
further note that Coffta and Soper had a very good working
relationship and that Coffta told Soper he was sorry to lose him
as an employee. Even if Soper mentioned that he was quitting
to go work for the union, there is no evidence that Coffta re-
peated that statement to Natalello. It was Natalello’s decision to
send Soper home because there was no assignment that Soper
could complete in 1 day. Respondent did not terminate Soper,
he quit. I therefore recommend this complaint allegation be
dismissed.
Claffey’s termination is a different story. The credible evi-
dence establishes that when Natalello received the call from
Montinarelli at 7:08 a.m. telling him that Claffey had been
distributing union literature prior to the start of work, Natalello
told Montinarelli that he could not believe it, and that Monti-
narelli should tell Claffey to return his tools and report to the
office. When Claffey spoke with Natalello later that morning,
Natalello told him he did not want to see him on any of his
jobsites. Natalello also later instructed Montinarelli that if
Claffey came back to work, he was to be told that he was not
allowed on the jobsite and that he would be removed by the
police if necessary. At no time did Natalello tell Claffey or
Montinarelli that it was his intent to transfer Claffey to another
jobsite. Thus, Natalello’s testimony that this was his intent is
not credible.
The only conclusion reasonably to be drawn from Natalello’s
statements on July 12 is that Claffey was terminated, and I so
find. I therefore find counsel for the General Counsel has sus-
tained his initial burden that Claffey’s union activities on the
morning of July 12 were a motivating factor in his termination.
As Claffey had worked for Respondent for over 2 months,
without incident, I find that Respondent has not sustained its
burden that he would have been terminated absent his union
activity.
D. Refusal to Consider and Refusal to Hire
The final allegation is that Respondent violated Section
8(a)(1) and (3) of the Act by refusing to consider for employ-
ment, and by refusing to employ, Boehler, Catalina, Caternolo,
Cirrincione, Keys, Moses, Muller, Perticone, Warren, Williams
and Yatteau.
In FES, 331 NLRB 9, 12 (2000), the Board stated:
To establish a discriminatory refusal to hire, the General
Counsel must . . . [under the Wright Line burdens] first show
the following at the hearing on the merits: (1) that Respondent
was hiring, or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had experience
or training relevant to the announced or generally known re-
quirements of the position for hire, or in the alternative, that
the employer had not adhered uniformly to such requirements,
or that the requirements were themselves pretextual or were
applied as a pretext for discrimination; and (3) that antiunion
animus contributed to the decision not to hire the applicants.
Once this is established, the burden will shift to Respondent to
show that it would not have hired the applicants even in the
absence of their union activity or affiliation.
In FES, at 15, the Board further set forth the principals in-
volving an alleged refusal to consider violation:
The General Counsel bears the burden of showing the follow-
ing at the hearing on the merits: (1) that Respondent excluded
applicants from a hiring process; and (2) that antiunion ani-
mus contributed to the decision not to consider the applicants
for employment. Once this is established, the burden will shift
to Respondent to show that it would not have considered the
applicants even in the absence of their union activity or affilia-
tion.
Swanson called Respondent’s office covertly on March 19,
and asked if he could make an appointment to submit an appli-
cation or if he could send in a resume. Legler told him that they
weren’t accepting applications or resumes. The message that
Legler gave Natalello for this call referred to Swanson as loyal,
dependable, and nonunion. He mailed his resume on April 10; 2
days later he received a response from Respondent saying that
they weren’t hiring or interviewing. On about March 28, Cater-
nolo and Yatteau called Respondent’s office where they spoke
to Legler. They each identified themselves as being with the
union and asked to put in an application for employment or set
up an appointment. She took their names and telephone num-
bers. Later that day Caternolo received a call from Ray, who
CNP MECHANICAL, INC. 171
asked Caternolo when was the last time he was “a hands on
plumber.” Caternolo responded that it was 5 years earlier, and
Ray questioned whether he was really interested in plumbing
work, but told him to mail in a resume, which he did. Between
April 1 and April 9, seven other union members called Respon-
dent in Caternolo’s presence, identified themselves as union
members and inquired about employment. Eight of them mailed
a resume to Respondent between April 2 and April 9, and one
mailed his resume on May 1.
There are some major credibility issues as to whether Re-
spondent was hiring employees, or had concrete plans to hire
employees, at the time that the union salts called to apply for
work. At one end of the spectrum, Respondent alleges that it
committed to hire Soper, Claffey, and Montinarelli in late Feb-
ruary or early March and had no further hiring needs. However,
because of the wet weather, they did not begin working until
April 29, 30, and May 6. Counsel for the General Counsel al-
leges that they were not offered jobs until April. Without much
difficulty I credit the testimony of Soper, Claffey and Monti-
narelli over that of Natalello, whom I found generally to be
lacking in credibility. I find that Soper was hired on April 6,
when Natalello told him that he had a job if he wanted one.
Claffey was hired on April 1, when Natalello told him that he
had work coming up and that he was interested in hiring
Claffey if Claffey was interested in working for him. I further
find that Montinarelli was hired in early April when Natalello
asked him if he was still interested in working for him. When
he said that he was, Natalello said, “Okay. I don’t have any-
thing for you right now, but I will get back to you.” Although
Soper, Claffey, and Montinarelli did not begin work until the
end of April or the beginning of May, that was a result of the
rainy weather, something Natalello could not control.
Based upon the above, I find that Respondent was hiring, or
had concrete plans to hire, at the time Swanson, Caternolo, and
the union salts applied to work for Respondent. The evidence
establishes that Respondent refused to consider these individu-
als for employment, and refused to hire them, in violation of
Section 8(a)(1) and (3) of the Act.4
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent, by Lisa Legler, violated Section 8(a)(1) of
the Act on March 19, 2002, by telling an employee-applicant
that Respondent’s posted policy restricting job applicants from
entering Respondent’s premises was a prerequisite to maintain-
ing a nonunion shop.
4. Respondent, by Lisa Legler, violated Section 8(a)(1) of
the Act on April 22, 2002, by interrogating an employee-
applicant about his union activities and sympathies, and by
informing the employee-applicant that he was not to talk to, or
accept literature from, union representatives.

4 I have not discussed the applicants’ qualifications. Natalello did not
question them, nor does Respondent’s raise this issue in its brief. Ja-
cobs Heating & Air Conditioning, 341 NLRB 981 (2004).
5. Respondent, by Charles Natalello, violated Section 8(a)(1)
of the Act on May 2, 2002, by threatening an employee with
discharge if the employee spoke to union representatives.
6. Respondent, by Charles Natalello, violated Section 8(a)(1)
of the Act on June 10, 2002, by threatening an employee with
reprisals if he did not report on the union activities of other
employees.
7. Respondent violated Section 8(a)(1) and (3) of the Act on
July 12, 2002 by terminating Trevor Claffey because of his
union activities.
8. Since on or about April 1, 2002, Respondent has violated
Section 8(a)(1) and (3) of the Act by refusing to hire, and refus-
ing to consider for hire, James Boehler, Stephen Catalina,
James Caternolo, Steve Cirrincione, Lonnie Keys, Harry
Moses, Robert Muller, John Perticone, Keith Warren, Richard
Williams, and William Yatteau.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminatorily discharged
employee Trevor Claffey, 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).
Having found that Respondent discriminatorily refused to
hire or consider for hire James Boehler, Stephen Catalina,
James Caternolo, Steve Cirrincione, Lonnie Keys, Harry
Moses, Robert Muller, John Perticone, Keith Warren, Richard
Williams, and William Yatteau, it must offer them instatement
to the positions for which they applied or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges.
Respondent must further make them whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
date they would have been hired less any net interim earnings,
as prescribed in F.W. Woolworth Co., supra, plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact, conclusions of law and on the en-
tire record, I issue the following recommended5
ORDER
The Respondent CNP Mechanical, Inc., Hilton, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from

5 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD172
(a) Telling employees or employee-applicants that its posted
policy restricting job applicants from entering its premises is a
prerequisite to maintaining a nonunion shop.
(b) Interrogating employees or employee-applicants about
their union activities.
(c) Telling employees or employee-applicants that they
should not talk to, or accept literature from, union representa-
tives.
(d) Threatening employees with discharge for engaging in
union activities.
(e) Threatening employees with reprisals if they do not re-
port the union activities of other employees.
(f) Discharging or otherwise discriminating against employ-
ees for supporting U.A. Plumbers and Pipefitters Local Union #
13, or any other union.
(g) Refusing to hire, or consider for hire, James Boehler,
Stephen Catalina, James Caternolo, Steve Cirrincione, Lonnie
Keys, Harry Moses, Robert Muller, John Perticone, Keith War-
ren, Richard Williams, and William Yatteau, because of their
membership in, or activities on behalf of U.A. Plumbers and
Pipefitters Local Union #13, or any other union.
(h) In any like or related manner interfering with, restraining
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Trevor
Claffey 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 previ-
ously enjoyed.
(b) Within 14 days from the date of this Order, offer James
Boehler, Stephen Catalina, James Caternolo, Steve Cirrincione,
Lonnie Keys, Harry Moses, Robert Muller, John Perticone,
Keith Warren, Richard Williams, and William Yatteau instate-
ment to the positions for which they applied, or, if those posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges.
(c) Within 14 days of the date of this Order, make whole
Trevor Claffey, James Boehler, Stephen Catalina, James Cater-
nolo, Steve Cirrincione, Lonnie Keys, Harry Moses, Robert
Muller, John Perticone, Keith Warren, Richard Williams, and
William Yatteau for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth above in the remedy section of this decision.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Trevor
Claffey, 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.
(e) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire, or con-
sider for hire, James Boehler, Stephen Catalina, James Cater-
nolo, Steve Cirrincione, Lonnie Keys, Harry Moses, Robert
Muller, John Perticone, Keith Warren, Richard Williams, and
William Yatteau, and within 3 days thereafter notify them in
writing that this has been done and that the refusal to hire or
consider for hire will not be used against them in any way.
(f) Preserve and, within 14 days of a request, provide at a
reasonable place designated by the Board or its agents, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic fashion,
necessary to analyze the amount of backpay due under the
terms of this Order.
(g) Within 14 days after service by the Region, post at its of-
fice in Hilton, New York, and at all of its jobsites, copies of the
attached notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 3, after
being signed by Respondent’s authorized representative, shall
be posted by Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by 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 pro-
ceedings, Respondent has gone out of business, Respondent
shall duplicate and mail, at its own expense, a copy of the no-
tice to all employees and former employees employed by Re-
spondent at any time since March 19, 2002.
(h) 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
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”