CRISDEL GROUP, INC.

National Labor Relations Board - Board Decisions

Apr 30, 2014

360 N.L.R.B. 751 (N.L.R.B. 2014)

CRISDEL GROUP, INC. 751
360 NLRB No. 92
Crisdel Group, Inc. and Ramon Joseph Morales.
Case 22–CA–077469
April 30, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On August 26, 2013, Administrative Law Judge Lau-
ren Esposito issued the attached decision. The Respond-
ent filed exceptions and the General Counsel filed an
answering brief. The Charging Party filed a letter stating
that he adopts and joins in the General Counsel’s answer-
ing brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions,

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.
In addition, some of the Respondent’s exceptions allege that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) of the Act by laying off Ramon Joseph Morales, we find
that the Respondent’s layoff decision was motivated by Morales’ ex-
pulsion from International Union of Operating Engineers, Local 825
(the Union), rather than by animus toward his internal union activity.
In addition, we agree with the judge, for the reasons stated in her deci-
sion, that the Respondent offered only pretextual reasons (i.e., lack of
work that he was capable of performing at the Florham Park jobsite or
other jobsites and low seniority) for Morales’ layoff. Thus, as the
reasons given by the Respondent for laying off Morales were not sup-
ported by the evidence, the Respondent failed “by definition to show
that it would have taken the same action for those reasons,” absent
Morales’ expulsion from the Union. Golden State Foods Corp., 340
NLRB 382, 385 (2003).
We further note that the Morales’ layoff cannot be justified under
the final proviso to Sec. 8(a)(3), which states in relevant part that “no
employer shall justify any discrimination against an employee for non-
membership in a labor organization” if the employer “has reasonable
grounds for believing that such membership was denied or terminated
for reasons other than the failure of the employee to tender the periodic
dues and the initiation fees uniformly required as a condition of acquir-
ing or retaining membership[.]” The judge found that the Respondent
laid off Morales after Morales read the Union’s expulsion letter to the
Respondent’s lead engineer, William Vaccaro, and described it to the
Respondent’s vice-president of construction, William Weaver. That
letter, dated February 22, 2012, states:
Please be advised that it is the decision of the Local 825 Examining
Committee to inform you that you are no longer a member of Operat-
ing Engineers Local 825. Shortly you will receive a check in the
and to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Crisdel Group, Inc., South Plainfield, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because of their expulsion from International
Union of Operating Engineers, Local 825, or any other
labor organization, when it has reasonable grounds for
believing they were expelled for reasons other than their
failure to tender periodic dues.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Ramon Joseph Morales 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 Ramon Joseph Morales 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 judge’s decision.
(c) Compensate Ramon Joseph Morales for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoff, and
within 3 days thereafter, notify Ramon Joseph Morales in
writing that this has been done and that the layoff will
not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for

amount of $36.00 to reimburse you for your dues that are paid through
6/30/12.
Thus, notified that Morales was current on his dues payments, the
Respondent had reasonable grounds for believing that Morales’ union
membership was terminated for a reason other than his failure to pay
dues or initiation fees. Accordingly, even if the Respondent’s collec-
tive-bargaining agreement with the Union required it to employ an
operator in good standing with the Union, Morales’ expulsion from the
Union was not a permissible justification for his layoff.
2 We shall modify the judge’s recommended Order to correct the lo-
cation of the Respondent’s facility, and to conform to the Board’s
standard remedial language. We shall substitute a new notice to con-
form to the Order as modified and with Durham School Services, 360
NLRB 694 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD752
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its South Plainfield, New Jersey facility, copies of the
attached notice marked “Appendix.”3 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 22, after being signed by the Respondent’s author-
ized 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. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since March 1, 2012.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
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

3 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.”
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against you because you have been expelled from Inter-
national Union of Operating Engineers, Local 825, or
any other labor organization, when we have reasonable
grounds for believing you were expelled for reasons oth-
er than your failure to tender periodic dues.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ramon Joseph Morales full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Ramon Joseph Morales whole for any
loss of earnings and other benefits resulting from his
layoff, less any net interim earnings, plus interest.
WE WILL compensate Ramon Joseph Morales for the
adverse tax consequences, if any, of receiving a lump-
sum backpay award, and WE WILL file a report with the
Social Security Administration allocating the backpay
award to the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoff of Ramon Joseph Morales, and WE WILL, with-
in 3 days thereafter, notify him in writing that this has
been done and that the layoff will not be used against
him in any way.
CRISDEL GROUP, INC.
The Board’s decision can be found at
www.nlrb.gov/case/22–CA–077469 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.
CRISDEL GROUP, INC. 753
Saulo Santiago, Esq., for the Acting General Counsel.
Ronald L. Tobia, Esq. (Tobia & Sorger, LLC), of Harrison,
New Jersey, for the Respondent.
Donald L. Sapir, Esq. (Sapir/Schragin LLP), of White Plains,
New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAUREN ESPOSITO, Administrative Law Judge. Based upon a
charge in Case 22–CA–077649, filed on March 27, 2012, and
amended on June 18, 2012, by Ramon Joseph Morales (Mo-
rales or the Charging Party), a complaint and notice of hearing
issued on July 31, 2012. The complaint alleges that Crisdel
Group, Inc. (Crisdel or Respondent), violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act) by laying
off Morales because he was no longer a member of Internation-
al Union of Operating Engineers, Local 825 (Local 825 or the
Union). Respondent filed an answer denying the complaint’s
material allegations. This case was tried before me on Septem-
ber 25, 2012, and February 4, 2013, in Newark, New Jersey.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation and maintains an office and
place of business in South Plainfield, New Jersey, where it is
engaged in heavy and highway construction and paving. Re-
spondent admits and I find that at all material times it has been
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. Respondent admits and I find
that at all material times Local 825 has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations
Respondent has performed heavy and highway paving work
for approximately 45 years at locations such as the Newark
Airport, the Brooklyn Bridge, and the George Washington
Bridge, and on roads such as the New Jersey Turnpike. Ac-
cording to Frank Criscola, Respondent’s chairman, during the
last 8 years Respondent has also performed earthwork such as
excavation and drainage for these projects. Respondent cur-
rently employs approximately 80 employees, about 20 of which
are operators. For approximately 35 years, Respondent has had
a collective-bargaining relationship with Local 825 covering
the operators’ employment.
William Weaver has been Respondent’s vice president of
construction for approximately 15 years. Weaver is responsible
for overseeing all Respondent’s current projects and construc-
tion activities, and its project managers and superintendents
report to him. William Vaccaro is Respondent’s lead engineer,
and is responsible for interacting with Local 825 to obtain op-
erators through the Union’s hiring hall, and ensuring that Re-
spondent complies with the Local 825 collective-bargaining
agreement.1 Each day, Weaver prepares a spreadsheet or

1 Vaccaro has also been a member of Local 825 for 28 years. He
testified that he is familiar with the Union’s officers, and attends union
meetings.
schedule describing the complete staffing necessary for the
following day’s work on every job, including the operators.
The spreadsheet also identifies which operators are assigned to
which jobsite, whether additional operators will be necessary,
and which, if any, operators will be laid off. Using this spread-
sheet, Vaccaro communicates the job assignments to operators,
calls the Local 825 referral hall for additional operators if nec-
essary, and, if required, informs operators that they are being
laid off. Weaver and Vaccaro also communicate by phone,
email, and text message regarding staffing and equipment for
the jobsites on a daily basis, sometimes three or four times per
day. Vaccaro testified that he and Weaver sometimes discuss
the work performance of the operators, typically when there is
some performance-related problem.2
As discussed above, Vaccaro contacts the Local 825 referral
hall when additional operators are needed for a jobsite. Vacca-
ro testified that when contacting the referral hall, he asks for an
operator competent to operate a specific piece of equipment,
and sometimes identifies specific experience, such as demoli-
tion work, that Respondent would prefer. He also discusses
whether the operator needs a TWIC or SWAC card, which is
issued by the Port Authority of New York and New Jersey after
a background check to permit access to the docks and the air-
port, respectively. The Local 825 contract permits operators to
run more than one piece of equipment per day, and Criscola,
Weaver, and Vaccaro all testified that operators who could run
equipment necessary for both paving work and “dirt” or earth
work were particularly desirable.
Vaccaro testified that he typically informs operators when
they are being laid off. The Local 825 contract does not require
that layoffs be implemented in reverse seniority order. Vaccaro
testified that when informing an operator that they are being
laid off, he typically tells them to put their name on the Union’s
referral list. Vaccaro testified that when an operator employed
by Respondent has a problem with their continued membership
in Local 825, he suggests that the operator seek legal advice
and tries to resolve the matter “before it goes any further,” in
that the majority of such situations involve nonpayment of un-
ion dues.
B. Morales’ Dealings with Local 825
Morales testified that he first became involved with Local
825 while working for a company called Lancaster Develop-
ment in 2006. When he began working for Lancaster, Morales
was performing emergency service work near Binghamton,
New York, including pipe work, water drainage, sewer work,
and creating slopes and grading for roads, for which he operat-
ed a bulldozer.3 He was then transferred to a Lancaster jobsite
at Drury Lane in Newburgh, New York, where he ran an exca-
vator (with metal tracks), a rubber tire excavator, a frontend

2 Criscola, Weaver, and Vaccaro testified for Respondent at the
hearing, as did Lorraine Lenard, Respondent’s controller and assistant
EEO officer. Criscola is Respondent’s designated EEO officer.
3 Grading work involves preparing a subbase for roadways by grad-
ing the ground, and then grading the subbase to prepare for the applica-
tion of blacktop.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD754
loader, and a bulldozer.4 Morales testified that while working
at Lancaster, he was approached by Local 825 Business Agent
Andrew Storno, who told him that he was a good operator, and
asked whether he would be willing to walk off the job for the
benefit of the Union. Morales responded that he was willing to
leave the job if he would receive a union book, and if he would
be put to work the next day on a job where the operators were
union-represented. Storno said that he would call Morales later
that day, and when he called he instructed Morales to walk off
the job. Morales walked off the job, and began working the
next day for Jett Industries, which had a collective-bargaining
agreement with Local 825, on a jobsite at Port Jervis, New
York.
Although Morales worked for firms under Local 825 con-
tracts fairly steadily for the next few years, he did not receive a
union book. Morales testified that he spoke to several lead
engineers to attempt to obtain a union book, as well as to Stor-
no and Local 825 Business Agent John Woods. Morales testi-
fied that he repeatedly asked Storno and Woods about how and
when he would obtain his union book, but they told him that it
was over their heads, and that he should keep working. Finally,
in 2008, the International Union of Operating Engineers ap-
pointed a supervisor, named Dan DeGraw, to oversee Local
825. Morales complained to DeGraw that he had been working
under the Local 825 collective-bargaining agreement for years,
but had not yet received his union book. DeGraw told Morales
that Local 825 had been accepting members but withholding
registrant cards and union books, in order to retain certain fund
contributions that are remitted to the International Union of
Operating Engineers once the members receive their registrant
cards or union books. Morales subsequently received a regis-
trant card after appearing before a meeting of the Union’s up-
grade committee. However, Morales testified that when he
went to the Local 825 office in Middletown, New York, to pick
up the paperwork necessary to join the Union, Storno and
Woods were present, and a heated argument ensued.
After obtaining his registrant card, Morales began question-
ing Woods and Storno about upgrading to obtain a union book.
Eventually, Morales spoke to Dave Bojack, the lead engineer
with Local 825 signatory Conti Enterprises and a member of
the Local 825 upgrade committee. Bojack told Morales that
every 18 months a member became eligible for an upgrade.
Morales then pressed the matter repeatedly with Woods and
Storno, emphasizing that he had done his part by walking off
the Lancaster job, and wanted his union book. Morales testi-
fied that Woods and Storno told him on multiple occasions that
he was not going to get his union book.5
The Local 825 referral system maintains records which de-
scribe the specific licenses, permits, and pieces of equipment
each operator has obtained or is competent to use. Employees
eligible to be referred by Local 825 first complete a workcard
listing the equipment they are qualified to use, and are then

4 Prior to working for Lancaster, Morales had done excavation work
for several companies using the same equipment.
5 At the time of the hearing in this matter, Woods was acting presi-
dent of Local 825, and Storno was still employed by the Union. Nei-
ther Woods nor Storno testified at the hearing.
tested on that equipment by the Union. If a particular contrac-
tor feels that a referred employee is not in fact capable of using
a particular piece of equipment, they may complain to the Un-
ion, and the Union then tests the individual on the equipment in
question again. Morales has a CDL class A certification, fork-
lift and hazmat certifications, OSHA 10 and 30 certifications,
and a Port Authority underground utility certification. Morales
also has SWAC and TWIC cards, obtained at the direction of
Respondent for work at the Teterboro Airport and a jobsite at
Global. Morales is qualified to run a paver (used to lay down
asphalt at a certain depth), a breakdown roller (which seals up
the blacktop after the paver), a finish roller (the last roller to
smooth the blacktop), and a sweeper (for clean-up). Morales is
also qualified to run a backhoe and equipment associated with
demolition, such as attachments to an excavator and a skid
steer. Morales is qualified to operate bulldozers and related
equipment such as a fine shaver used to grade subbase or slopes
within under an inch, some of the most difficult work that he
performs. He is also qualified to operate excavators and grad-
ers which set the subbase for a road before the paver lays down
asphalt. Finally, Morales is qualified to operate a dirt roller,
used in road work, which compresses and seals up dirt so that it
is not affected by rain. These various certifications and capa-
bilities are all described in Local 825 referral hall records per-
taining to Morales.
C. Respondent’s Employment and Lay Off of Morales
Morales began working for Respondent on March 28, 2011,
after being referred by a dispatcher at Local 825’s Springfield,
New Jersey referral hall. The dispatcher told Morales that Re-
spondent was looking for a minority operator capable of run-
ning an excavator, a rubber tire excavator, and a front-end
loader, with experience in demolition.6 Morales was initially
sent to a jobsite at Route 80, and worked there from March
until May 2011, operating an excavator, a rubber tire excavator,
a front-end loader, and a backhoe. While working at this
jobsite, Vaccaro introduced himself, and told Morales that he
was the contact person for all of the operators. Morales testi-
fied that Vaccaro asked what other equipment he could operate,
and Morales said that he also did paving work. Vaccaro stated
that Crisdel liked operators who could do paving and blacktop,
because they were more versatile.7 Morales testified that while
at the Route 80 jobsite the supervisor, Jeff, told him he was a
good operator, and Joe Lombardi, a 20-year employee, in-
formed Morales that he had told Weaver and Vaccaro that it
would be a good idea for the company to keep Morales on.
Morales testified that some time after he began working for
Respondent, in the spring of 2011, he asked Vaccaro to look
into the situation with Local 825, and see whether he could help
obtain his union book. According to Morales, Vaccaro told

6 This is consistent with Vaccaro’s account of the specific work
qualifications he communicated to the Local 825 referral hall at the
time that Morales was hired. Certain contracts for work funded by the
Federal and New Jersey State Governments require that the contractor
employ minorities as a certain percentage of the work force on the
project. Morales is Hispanic.
7 Vaccaro testified that he met Morales at the Route 80 jobsite, but
did not provide any specific description of their conversation.
CRISDEL GROUP, INC. 755
him a few weeks later that there was something going on in the
Local 825 office, and that Morales would have to take it up
directly with the Union, because it was over Vaccaro’s head.
Several months later, Morales spoke to Vaccaro about the up-
grade to a union book again, and Vaccaro said that he would
have to speak with Bojack. Vaccaro later reported to Morales
that a member was eligible for an upgrade every 18 months, but
that Morales would not receive one. Vaccaro confirmed that
Morales had spoken to him several times about upgrading from
a registrant card to a full union book. Vaccaro testified that he
suggested that Morales speak to Bojack about the matter, be-
cause Bojack was on the Union’s upgrade committee.
After the Route 80 job ended, Morales called Vaccaro to let
him know that he had been laid off, and Vaccaro immediately
sent him to a jobsite widening the road at Exit 8 on the New
Jersey Turnpike. Morales was assigned to lay pipe for a sewer
line off the exit between residences and a pump station. Mo-
rales worked at this jobsite from May to late July 2011, operat-
ing an excavator, a bulldozer, a loader, and a backhoe. Morales
testified that Superintendent Bob Dee and Foreman Bruce Ken-
nel both told him that he was a good operator. Subsequently
Morales received assignments to different jobsites directly from
Weaver or Vaccaro, without going back on the Local 825 out of
work list. After the Exit 8 job, Morales was put on a night
paving crew, where he operated the breakdown, finish, or sec-
ond roller until the end of August 2011. The night paving crew
worked on sections of Route 80 and Route 287, and the New
Jersey Turnpike. Morales testified that Superintendent Juan
and Foreman Jerry told him that he was a good roller operator
during his work on the paving crew.
Morales was next sent to a road widening job at Florham
Park, New Jersey, cutting back the slopes at the side of the road
and doing drainage, curbs, and fine grading. Morales was the
only operator on this project at the time, and ran a rubber tire
excavator. Morales testified that Foreman Juan said that he
operated the equipment well. Morales worked on the job for
about a month, when it was shut down to obtain necessary per-
mits. He was next sent to a jobsite at Giant Stadium, repairing
a water line, and operated a backhoe and a rubber tire excavator
at that project for a couple of days. He was laid off of the Giant
Stadium project after a couple of days, and returned to the Lo-
cal 825 out of work list. However, he informed the union dis-
patcher that he would rather wait for another job with Respond-
ent than be sent out to a different contractor, because Vaccaro
had told him that Respondent would have more work coming
up.
At the end of September 2011, Morales was sent to a job at
the Teterboro Airport, where he did pipe work until late No-
vember. On the weekends, he worked as part of a group mill-
ing and paving the runways and taxiways; Morales operated the
breakdown roller, compaction or numbers roller, and the finish
roller on this job. Morales was subsequently sent to a jobsite at
Exit 8 on the New Jersey Turnpike, where he ran a paver until
December 2011. Morales was then part of a paving crew at a
job on the highway in Bayonne, and was sent in mid-December
2011 to a jobsite at PSE&G, where he ran a roller. He next
went to a jobsite in Trenton for a few days to do fine grading.
At that point, Respondent shut down its operations for the
period from Christmas to New Years. However, Morales at-
tended Respondent’s Christmas party at a location in South
Plainfield. Morales testified that he had heard at the jobsites
that Crisdel was bidding on a road project on Route 78, so at
the Christmas party he asked Weaver whether Crisdel had won
the bid. Weaver told Morales that Crisdel had gotten the Route
78 job, and that he expected to send Morales there soon. Mo-
rales testified that he also asked Vaccaro about the Route 78 job
at the Christmas party. According to Morales, Vaccaro said
that Crisdel had won the bid for the job, and that Morales was
the first person that he thought about to send there because of
his versatility. Vaccaro said that the Route 78 job would be
beginning soon, but did not have an exact date.8
In January 2012, Morales was sent back to the Florham Park
job, where Respondent was finishing up a sewer line and con-
tinuing the road widening. During this period, Morales operat-
ed a backhoe, did fine grading, and operated a dirt roller. Mo-
rales was the sole operator on the job during this period.
On Friday, February 24, 2012,9 while still employed on the
Florham Park job, Morales received a letter dated February 22
from Local 825’s examining committee, stating that the com-
mittee had decided that Morales was no longer a member of the
Union, and that Morales would receive a reimbursement for
dues paid through June 30.10 Morales testified that after he
received this letter on February 24, he called Vaccaro on Vac-
caro’s cell phone at 4:30 p.m., because he was scheduled to
work on Monday, February 26. According to Morales, he read
the letter to Vaccaro and asked him what he should do. Vacca-
ro said that he didn’t want to get involved in the situation.
Morales said he was scheduled to work the following Monday,
and Vaccaro directed him to come in to work, because he had
not been informed by Local 825 of Morales’ expulsion. Mo-
rales testified that on Sunday he sent Vaccaro a text message,
asking Vaccaro whether he had heard anything, and Vaccaro
replied that he had not.11
Vaccaro confirmed that Morales called him a week or so pri-
or to being laid off. Vaccaro testified that Morales said he had
received a letter from Local 825 stating that “his book had been
revoked or however they worded it,” and asked what he should
do. Vaccaro testified that he told Morales that he should seek

8 Weaver testified that Respondent put in a bid for the Route 78
work in December 2011, and that around the time of the Christmas
party there was an indication that Crisdel would be awarded the con-
tract for the Route 78 job. However, Weaver could not recall speaking
to Morales at the Christmas party. Vaccaro also testified that he
learned that Respondent had been awarded the contract for the Route
78 job around Christmas in 2011. Vaccaro testified that at some point
Morales asked about the Route 78 job, and Vaccaro told him that the
lead engineer from Ferreira Construction was handling operators on the
job.
9 All subsequent dates are in 2012, unless otherwise indicated.
10 There is no evidence that Morales was brought up on internal un-
ion charges, or that a hearing was conducted by Local 825 prior to his
expulsion. There is no evidence that Morales was delinquent in his
payment of dues to the Union.
11 Vaccaro testified that he had communicated with Morales by text
message, but could not recall this particular exchange.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD756
legal assistance, because many times members received letters
regarding unpaid dues. Vaccaro told Morales that he did not
intend to say anything about the matter until he heard some-
thing further.
On Monday, February 27, Morales reported for work at the
Florham Park jobsite, where he was doing fine grading and
generally preparing the project for blacktop. Morales testified
that early that week Vaccaro called him, and asked him whether
he had heard anything about his situation with the Union. Mo-
rales told Vaccaro that he was looking into it, because there
was no reason for the Union to expel him. Morales contacted
friends who had been Local 825 members for some time, but
was unable to obtain information as to why he was expelled.
Finally, Morales testified that on Thursday, March 1, he called
Weaver to let him know that Local 825 had expelled him and
see whether there was anything Weaver could do. According to
Morales, he described the letter from Local 825 expelling him,
and asked Weaver if he could do anything. Weaver said there
was nothing he could do. Weaver then said that under Re-
spondent’s contract with Local 825 Morales had to be in good
standing with the Union in order to continue to work for the
company. Weaver said that as a result, he would have to lay
Morales off. Weaver told Morales that Friday would be his last
day on the job.
Vaccaro and Weaver testified that they did not discuss Mo-
rales’ expulsion from Local 825 prior to his layoff. Vaccaro
and Weaver testified that they first discussed the matter during
the week after Morales’ layoff. Vaccaro testified that Weaver
called him and asked him what was going on with Morales,
whether Morales was having some trouble, because Morales
had asked Weaver about becoming a superintendent. Accord-
ing to Vaccaro, he responded that Morales had told him about a
problem with Local 825, but that Morales was working on it.
Weaver testified that Vaccaro called him the week after Mo-
rales’ layoff, and told him that Morales was “having some is-
sues” with Local 825. Weaver testified that he did not inquire
as to the specific nature of the issues between Morales and the
Union. Weaver testified that this conversation with Vaccaro
took place prior to Morales’ inquiry about a superintendent
position.
Morales testified that on Friday, March 2, while working at
the Florham Park jobsite, Vaccaro called him and told him that
that would be his last day of work. Vaccaro told Morales that
he had done a good job, but because of the Union’s letter expel-
ling him he could not continue to work for the company. Vac-
caro told Morales that if he straightened out the problem with
Local 825, he could return to work. Vaccaro testified that at
some point in March, Weaver told him that there was no more
pipe or grading work at the Florham Park jobsite, and that the
job was slowing down. According to Vaccaro, Weaver asked
whether he had any room for additional operators on the New
Jersey Turnpike job, and Vaccaro said that the job was down to
skeleton crews. Consequently, Vaccaro called Morales and
told him that the Florham Park job would be ending and there
was no additional work for him. Vaccaro said that if something
came up, he would let Morales know.
D. Events After Morales’ Discharge
After his lay off, Morales remained in contact with the com-
pany, and had several conversations with Vaccaro and Weaver.
Morales testified that about 2 weeks after being laid off he
called Vaccaro and asked whether Vaccaro had heard anything
from Local 825. Vaccaro asked Morales how things were go-
ing, and Morales said that he had spoken to the NLRB and was
going to obtain legal counsel. Vaccaro told Morales to let him
know if the situation with Local 825 was resolved, and Vaccaro
would then try to get him back to work. Morales testified that a
couple of weeks later he called Vaccaro again to see whether
Vaccaro had heard anything. Vaccaro said that he had not, and
asked Morales what was going on. Morales said that he had
retained an attorney, Donald Sapir, Esq., and would hopefully
be reinstated to the Union soon. Vaccaro said that he wanted
Morales to stay in touch, so that he could bring Morales back
when the situation with Local 825 was resolved. In addition, 2
or 3 weeks after being laid off Morales called Weaver, and
asked whether Respondent had any assistant superintendent
positions open, because Morales had experience in that job as
well. Weaver said that Crisdel didn’t have anything at that
time, but that he would keep Morales in mind. He asked Mo-
rales what was going on, and Morales said that he had contact-
ed the NLRB and retained counsel. Weaver told Morales to
keep him informed, because he would like to have Morales
return to work at the company. Weaver generally confirmed
Morales’ account of this conversation.
In May 2012, Morales received his union book pursuant to a
settlement reached between Local 825 and the NLRB, Region
22, with the participation of Morales’ private attorney. Morales
subsequently placed his name on the Local 825 out of work list,
and asked that his name be held for Respondent for a couple of
weeks. Under the Local 825 collective-bargaining agreement, a
contractor has the right to recall a specific operator through the
referral hall for up to 2 years after that operator’s last employ-
ment with the contractor. Morales, however, was not recalled
to work with Respondent, even though Respondent asked for
nonrecall referrals from the Local 825 referral hall during that
period. Specifically, records from the Local 825 referral hall
indicate that Respondent received two referred operators on
May 30 (for black top, dozers, excavators, and loaders), June
11 (for dozers and loaders), and June 15 (for dozers and load-
ers).
III. ANALYSIS AND CONCLUSION
A. Applicable Legal Standards and the
Parties’ Contentions
Under Section 8(a)(3) of the Act, an employer may not dis-
criminate with regard to the hire, tenure, or any term or condi-
tion of employment in order to encourage or discourage mem-
bership in a labor organization. In order to determine whether
an adverse employment action was effected for prohibited rea-
sons, the Board applies the analysis articulated 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. Trans-
portation Management Corp., 462 U.S. 393 (1983). The Board
has held that the Wright Line analysis is generally appropriate
CRISDEL GROUP, INC. 757
in cases where the employer’s motivation is at issue, including
cases alleging that an employee was discharged in retaliation
for internal union activity. Nationsway Transport Service, 327
NLRB 1033, 1034 (1999).
To establish an unlawful discharge or lay off under Wright
Line, the General Counsel must first prove, by a preponderance
of the evidence, that the employee’s protected activities were a
substantial or motivating factor in the employer’s decision to
take action against them. Manno Electric, Inc., 321 NLRB 278,
280 (1996). The General Counsel makes a showing of discrim-
inatory motivation by proving the employee’s protected activi-
ty, employer knowledge of that activity, and animus against the
employee’s protected conduct. Naomi Knitting Plant, 328
NLRB 1279, 1281 (1999). Proof of an employer’s motive can
be based upon direct evidence or can be inferred from circum-
stantial evidence, based on the record as a whole. Ronin Ship-
building, 330 NLRB 464 (2000); Robert Orr/Sysco Food Ser-
vices, 343 NLRB 1183 (2004).
If the General Counsel is successful, the burden of persua-
sion then shifts to the employer to show that it would have
taken the same action even in the absence of the employee’s
protected activities. Wright Line, 251 NLRB at 1089; Septix
Waste, Inc., 346 NLRB 494, 496 (2006); Williamette Indus-
tries, 341 NLRB 560, 563 (2004). Once the General Counsel
has met its initial burden under Wright Line, an employer does
not satisfy its burden merely by stating a legitimate reason for
the action taken, but instead must persuade by a preponderance
of the credible evidence that it would have taken the same ac-
tion in the absence of the protected conduct. T&J Trucking
Co., 316 NLRB 771 (1995); Manno Electric, Inc., 321 NLRB
at 280 fn. 12.
The complaint in this case alleges that Respondent laid off
Morales in retaliation for his expulsion from Local 825. How-
ever, at the hearing the General Counsel adduced significant
evidence during its direct case regarding Morales’ internal un-
ion activities, and argues in his posthearing brief that Morales
was laid off in retaliation for his activities, which culminated in
his expulsion.12 Thus, the General Counsel argues that the
evidence establishes a prima facie case that Morales was laid
off in retaliation for his internal union activities, ultimately
resulting in his expulsion. The General Counsel further argues
that the preponderance of the evidence does not substantiate
Respondent’s assertion that it laid off Morales for legitimate,
nondiscriminatory reasons.
Respondent does not argue that Morales’ internal union ac-
tivity was not protected or that the Wright Line analysis is oth-
erwise inappropriate. Respondent contends that the General
Counsel has not established a prima facie case under the Wright
Line standard, because there is no evidence that its personnel
were aware of Morales’ expulsion from the Union at the time of

12 While General Counsel argues in his posthearing brief that Re-
spondent laid off Morales in order to “appease the Union,” Local 825 is
not a party to this case, there are no allegations against the Union, and,
as discussed below, Respondent does not contend that it laid Morales
off at the Union’s behest.
the layoff, and no evidence of animus.13 Respondent further
contends that the preponderance of the credible evidence estab-
lishes that it legitimately laid Morales off because work at the
Florham Park jobsite where he was employed was ending, and
Crisdel had no other work that he was competent to perform.
B. General Counsel Has Established a Prima Facie Case
I find that the record evidence establishes a prima facie case
that Morales was laid off because of his expulsion following
internal union activity. The evidence establishes that Morales
engaged in internal union activity, and that Respondent had
knowledge of this activity and Morales’ expulsion from Local
825 at the time that Morales was laid off. In addition, there is
evidence sufficient to generate an inference that Respondent
laid off Morales because Morales had been expelled from the
Union.
The evidence establishes that Morales engaged in a lengthy
course of internal union activity in order to obtain a union reg-
istrant card and full union book. It is well settled that although
activity such as Morales’ does not constitute “classic ‘union
activities,’” internal union member activities opposing the un-
ion’s policies and practices constitute protected activity under
Section 7. Nationsway Transport Service, 327 NLRB at 1034;
see also Wenner Ford Tractor Rentals, 315 NLRB 964 (1994)
(discriminatee opposed incumbent union officials in earlier
internal union election); Combustion Engineering, 272 NLRB
957, 960–961, 963–966 (1984) (discriminatee disputed union
business manager’s position regarding application of contractu-
al overtime and expense reimbursement provisions). The
Board’s Decision in Nationsway Transport Service is instruc-
tive in this regard. In that case, the Board applied the Wright
Line analysis and concluded that the employer unlawfully dis-
charged the discriminatee pursuant to the union’s request. Na-
tionsway Transport Service, 327 NLRB at 1033–1034. The
parties had established a practice under the collective-
bargaining agreement that the first employee arriving at a new-
ly opened terminal was entitled to the first position on the sen-
iority list, and would perform shop steward duties as the un-
ion’s “spokesman” at the jobsite. Id. at 1034. The Board found
that the discriminatee arrived at the job and signed in first, de-
spite an agreement made by the union to have its president’s
son-in-law sign in first and act as spokesman; as a result, the
discriminatee’s conduct was vehemently opposed by the union.
Id. at 1034, 1038. The Board thus determined that when it
discharged the discriminatee, the employer violated Section
8(a)(1) and (3) by discriminating regarding the hire, tenure, or

13 Proviso B to Sec. 8(a)(3) prohibits an employer from “justify[ing]
any discrimination against an employee for non-membership in a labor
organization” if the employer has “reasonable grounds” to believe that
an employee’s union membership was denied or terminated for reasons
other than the employee’s failure to remit required dues and initiation
fees. See, e.g., Palmer House Hilton, 353 NLRB 851, 852 (2009) (two-
member Board), 356 NLRB 1 (2010). Respondent contends here that
Weaver, who made the determination to lay off Morales, was not aware
of Morales’ expulsion from Local 825 at that time. Respondent does
not argue that it discharged Morales at Local 825’s request, or had
reasonable grounds to believe that the Union had expelled him for
nonpayment of dues.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD758
terms and conditions of its employees’ employment, in order to
encourage union membership. Id. at 1034.
In this context, Morales’ expulsion and internal union activi-
ties are sufficient to warrant the application of the Wright Line
standard, which is appropriate when employer motivation and
possible retaliation for protected activity is in question. Mo-
rales testified without contradiction that beginning in 2006,
when he walked off a job at the behest of Local 825 Business
Agent Andrew Storno, he had been struggling with the Union
to obtain his union book. I credit Morales’ account of his sub-
sequent exchanges with Storno and Business Agent John
Woods regarding the issue, at least one of which became quite
heated, while working jobs covered by the Local 825 collec-
tive-bargaining agreement. I further credit Morales’ testimony
that he spoke with the supervisor eventually appointed by the
International Union of Operating Engineers to oversee the Lo-
cal, and was informed that Local 825 had been withholding
member registrant cards and union books in order to retain for
itself fund contributions which would otherwise have been
remitted to the International. Likewise, I credit Morales’ de-
scription of his ensuing efforts to obtain an upgrade from a
registrant card to a full union book, including his testimony
regarding discussions with Storno, Woods, and Dave Bojack of
the Local 825 upgrade committee. Finally, I credit Morales’
uncontradicted testimony that Storno and Woods repeatedly
told him that he was not going to receive a union book. Pursu-
ant to the Board’s decision in Nationsway Transport Service
and the cases cited therein, I find that Morales’ lengthy series
of efforts in this regard constituted protected internal union
activity, and that the application of the Wright Line analysis is
appropriate.
The evidence also establishes that, contrary to Respondent’s
contention, Weaver and Vaccaro, the managers directly in-
volved in Morales’ layoff, were aware of his expulsion from
Local 825 by letter of February 22, and of his internal union
activities. Vaccaro basically corroborated Morales’ testimony
that they had discussed Morales’ ongoing attempts to obtain an
upgrade to a union book, and that Morales informed him on
February 24 that he had been expelled from the Union. How-
ever, I also credit Morales’ testimony that he called Weaver on
March 1 and informed him that he had been expelled from Lo-
cal 825. I further credit Morales’ testimony that Weaver told
him during this conversation that Respondent’s contract with
Local 825 required that Morales remain in good standing with
the Union in order to continue to work, and that Weaver would
have to lay Morales off as a result.
In doing so, I find that Morales was a more credible witness
regarding these events, whose testimony overall was more reli-
able than that of Weaver or Vaccaro. Morales’ testimony re-
garding his conversations with Vaccaro and Weaver on March
1 was straightforward and consistent. Weaver’s testimony, by
contrast, was vague and contradicted both his previous affidavit
and telephone records in the most significant respects. Weaver
initially testified on direct examination that he had two conver-
sations with Morales regarding his employment status. Weaver
claimed that the first took place in the days before Morales’
layoff, after Vaccaro had informed Morales that he would no
longer be working for Respondent but before Morales’ em-
ployment actually ended. (Tr. 241.) Weaver said that during
this conversation, initiated by Morales, Morales said that Vac-
caro had laid him off, and asked if there was a chance of his
returning to work. Weaver claimed that he told Morales that
the Florham Park job was coming to an end, but Morales might
be called back if Respondent had sufficient work and needed
additional employees. (Tr. 241.) Weaver contended that dur-
ing the second conversation, a few weeks later, Morales raised
the possibility of becoming a superintendent, and only then
revealed that he “had some issues with Local 825 that he was
trying to rectify.” (Tr. 242.) Weaver repeatedly maintained
that he was never aware that Morales had been expelled by
Local 825. (Tr. 242, 245–246.)
Weaver’s affidavit and pertinent telephone records, however,
establish that his testimony regarding his conversations with
Morales was utterly unreliable. For example, in Weaver’s affi-
davit, sworn to about a month after Morales’ layoff, he con-
tended that both of his conversations with Morales took place
after Morales stopped working, and not before, thus flatly con-
tradicting his testimony on direct examination. (Tr. 262–264.)
Furthermore, in his affidavit, Weaver admitted that during the
first of these conversations, Morales said that he had been ex-
pelled from Local 825, again baldly contradicting his direct
testimony. (Tr. 264–266.) Weaver’s contention in his affidavit
that his conversations with Morales took place only after Mo-
rales’ layoff was also contravened by Weaver and Morales’
telephone records, which indicate that Weaver and Morales
spoke on March 1, before Morales’ layoff, and then again on
March 16, 2 weeks later. (Tr. 268–271; GC Exhs. 10, 16.) It
would not be unreasonable to conclude that Weaver deliberate-
ly attempted to tailor the account he provided in his direct tes-
timony to ameliorate the admissions contained in his affidavit.
Regardless, the completely contradictory testimony and docu-
mentary evidence involving the critical events and issues of fact
in the case compels the conclusion that Weaver cannot be cred-
ited as a witness, and that his testimony is not probative.
Vaccaro’s testimony was similarly unenlightening. Vaccaro
initially contended that he could not recall when Weaver di-
rected him to lay Morales off, only to remember that their con-
versation took place on March 1 after being confronted with his
affidavit to that effect. (Tr. 325, 346–348.) Vaccaro was also
less than forthcoming with details regarding his conversation
informing Morales of the layoff, such that the specifics had to
be extracted gradually during the course of his cross-
examination. (Tr. 346, 347–350, 362.) Vaccaro repeatedly
disparaged his own recollection of these events, asserting that
he was “bad with timeline,” and eventually attempted to cast
doubt upon the veracity of the statements in his affidavit by
contending that “things got late and I was getting a little con-
fused.” (Tr. 327, 374–375.) It should also be noted that Weav-
er and Vaccaro presented conflicting accounts of their first
discussion of Morales’ “union issues” after his layoff; while
Weaver claimed that this conversation took place “probably the
beginning” of the week following the layoff, Vaccaro contend-
ed that it occurred after Morales had inquired as to a superin-
tendent position, at least 2 weeks later. (Tr. 243, 327–328.)
For all of the foregoing reasons, I do not credit Vaccaro’s tes-
CRISDEL GROUP, INC. 759
timony that he did not discuss Morales’ expulsion from Local
825 with Weaver until after Morales had been laid off.
Finally, Weaver and Vaccaro’s assertion that Weaver was
unaware of Morales’ expulsion from Local 825 prior to his
layoff is improbable given their own accounts of their work
responsibilities and interactions. The evidence establishes that
each day Weaver prepares a schedule, consisting of a spread-
sheet, setting out the complete staff, including the operators,
necessary for the following day’s work. This schedule identi-
fies the operators assigned to each jobsite, indicating whether
additional operators will be necessary and which operators, if
any, will be laid off. Vaccaro uses this schedule to communi-
cate job assignments and layoffs to the operators, and contacts
the Local 825 referral hall for additional operators as needed.
Weaver and Vaccaro both testified that they communicate eve-
ry day, as often as three–four times per day, and both stated that
they discussed issues involving operators with one another,
including issues involving an operator’s continued membership
in Local 825. (Tr. 24, 248–249, 272, 328–330.) Given this
evidentiary context, it is simply not plausible that Vaccaro
would have neglected to tell Weaver that an operator who had
worked steadily for Respondent until that point had been ex-
pelled from Local 825.
For all of the foregoing reasons, I find that Respondent was
aware of Morales’ protected internal union activity, and of his
expulsion from Local 825, at the time of his layoff. I further
credit Morales’ testimony that when he called Weaver on
March 1 and informed Weaver that he had been expelled from
the Union, Weaver responded that Crisdel’s contract with Local
825 required that Morales remain in good standing with the
Union in order to continue to work, and that Weaver would
have to lay Morales off.14
The record also contains indicia of animus sufficient to sup-
port a prima facie case. The evidence establishes that Morales
was laid off within a week after his expulsion from the Union,
and the day after his March 1 conversation informing Weaver
that he had been expelled. Such timing has been considered
suspicious by the Board in the context of the Wright Line anal-
ysis. See, e.g., Robert Orr/Sysco Food Services, 343 NLRB
1183, 1193 (2004) (timing of discharge which occurred 2
weeks after testimony in a Board proceeding suspect); Air Flow
Equipment, Inc., 340 NLRB 415, 419 (2003) (discharge which
occurred “within a few weeks of Respondent’s learning that he
was a leading union organizer” suspect). I have also found that
Weaver specifically attributed the layoff to Morales’ expulsion

14 Respondent argues that Morales should not be credited because
he had filed and settled an unfair labor practice charge against Local
825 prior to filing the instant charge against Respondent. Morales’
exercising his right to file charges against the Union and Respondent is
immaterial to his credibility. While Respondent further argues that
Morales fatally undermined his credibility by informing Lorraine Le-
nard that he had no issue with Respondent after filing NLRB charges,
the testimony indicates that Morales and Lenard were discussing issues
of discrimination involving protected classifications under Title VII of
the Civil Rights Act of 1964 and related statutes, as Lenard is Respond-
ent’s assistant EEO officer. In addition, Morales cannot be expected to
exhibit an attorney’s understanding of the substantive and procedural
law involving labor and employment issues.
during their conversation on March 1. I credit as well Morales’
testimony that Vaccaro told him that he could not continue
working for Crisdel because he had been expelled, but could
return to work if he resolved the problem with Local 825. Such
statements are highly probative of unlawful motivation. Na-
tionsway Transport Service, 327 NLRB at 1040, 1045 (terminal
manager’s statement that employee would not be returned to
work until he “straightened out [his] problems with the union”
evinces unlawful motivation); Quality Mechanical, 307 NLRB
64, 66 (1992).
For all of the foregoing reasons, I find that the General
Counsel has established a prima facie case that Morales was
laid off in retaliation for his expulsion from Local 825.
C. Respondent has not Established that it Laid off
Morales for Legitimate Reasons
Respondent contends that Morales was laid off because there
was no additional work that he was capable of performing at
the Florham Park jobsite, and because it had no work for him at
any other job. I find that the preponderance of the credible
evidence does not substantiate these assertions.
I find that the evidence overall establishes that Morales was
a valuable employee by Respondent’s standards. Morales had
experience in both “dirt” or earth work, such as excavation, and
in paving work. During his employment with Respondent, in
addition to performing dirt work, Morales worked on a paving
crew at jobsites at Route 80, Route 287, and the New Jersey
Turnpike (operating beakdown, finish, and second rollers), at
the Teterboro Airport, at a highway in Bayonne (operating
breakdown, compaction/numbers and finish rollers), and at
PSE&G (operating a roller). Weaver and Vaccaro both testi-
fied that Morales was capable of performing both earth work
and paving work, and that operators with that sort of versatility
were particularly desirable. (Tr. 257–258, 309–310, 331–
334).15 They also testified that Respondent makes an effort to
retain good operators, like Morales. There is no evidence that
Morales was disciplined, or that there were any problems with
his work whatsoever during his year of employment.
Furthermore, the evidence establishes that work at the Flor-
ham Park jobsite was not complete at the time of Morales’
layoff, as Weaver and Vaccaro contended. Although Weaver
and Vaccaro both testified that the Florham Park job was end-
ing at the time of Vaccaro’s layoff (Tr. 294–295, 351), in fact
the job continued into April, according to Respondent’s payroll
records. (GC Exh. 11, pp. 348, 369, 386.16) Weaver also con-
tended that there was only milling and paving work left on the
Florham Park job at the time of Morales’ layoff, and Vaccaro
testified that Weaver communicated this to him as well. (Tr.
294–295, 367.) However, Respondent’s payroll records indi-
cate that dirt or earth work, such as storm drainage, excavation
and resoiling, was performed at the Florham Park jobsite during
the weeks after Morales’ layoff. (GC Exh. 11, pp. 292–293,
308, 334.)

15 Weaver also testified that some of the employees on Respond-
ent’s regular paving crews were not capable of operating dirt machines.
16 Page numbers refer to Bates stamp numbers appearing in the up-
per right hand corner of GC Exh. 11.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD760
In fact, the documentary evidence establishes that on March
1 and 2, immediately prior to his layoff, Morales was perform-
ing paving, as opposed to dirt work. (Tr. 84–85; GC Exh. 11,
p. 273.) Respondent’s payroll records establish that the week
after Morales’ layoff operator Gino Trois began working at the
Florham Park jobsite, performing the same paving work that
Morales had performed immediately prior to his layoff. (Tr.
86; GC Exh. 11, pp. 273, 292.) Trois continued working at the
Florham Park jobsite, performing paving, milling, and dirt
work, until April 6 (GC Exh. 11, pp. 306, 348), and Respond-
ent’s payroll records establish that employees Mark Bennett,
Richard Fazio, Eric Marple, Jeff McGorvin, Mark Simon, Rob-
ert Spiroto, and Michael Terranova performed paving and dirt
work which Morales was capable of handling during the month
after Morales’ layoff. (GC Exh. 11, pp. 292, 295, 300, 303,
306, 308, 318, 327, 331, 344.) Indeed, Weaver admitted that he
transferred operators from other jobs to the Florham Park
jobsite, even to run the specific machine Morales had been
operating at the time of his layoff. (Tr. 295–296.) As a result,
the evidence establishes that Morales was immediately replaced
at Florham Park by another operator who performed exactly the
same paving work, contravening Respondent’s contention that
there was no additional work for Morales at the Florham Park
jobsite at the time of his layoff. The evidence that Morales was
performing paving work at Florham Park during his last 2 days
of work there also undermines Respondent’s assertion that
Morales was not capable of performing what was purportedly
the only remaining work at the Florham Park jobsite at the time
of his layoff.
Furthermore, Respondent’s argument, articulated by Weaver,
that Morales was replaced by other more senior operators is not
supported by the evidence overall. (Tr. 296–297, 303.) Alt-
hough the Local 825 collective-bargaining agreement apparent-
ly does not require that seniority order be taken into considera-
tion in cases of layoff and recall, Weaver and Criscola testified
that Respondent had a general practice of doing so. This con-
tention, however, is belied in the case of Morales by documen-
tary evidence. In particular, Respondent’s seniority list estab-
lishes that three of the operators who worked at the Florham
Park jobsite after Morales’ layoff—Jeff McGorvin, Robert
Spirito, and Michael Terranova—had the same or less seniority
than did Morales, whose seniority date is April 18, 2011. (Tr.
303; GC Exh. 17.)17 Respondent provided no explanation as to
why these employees were selected to work at the Florham
park jobsite instead of Morales given his equal or greater sen-
iority. As a result, Respondent’s claim that it selected Morales
for layoff due to his low seniority is not supported by the rec-
ord, indicating that its asserted reasons for the layoff are pre-
textual.
I further find that the record does not substantiate Respond-
ent’s assertion that there was no work for Morales at any other
Crisdel jobsite at the time of his layoff. The testimony of Re-
spondent’s witnesses regarding the Route 78 job, which began
on March 15, was contradictory and unreliable. For example,

17 According to Respondent’s seniority list, McGorvin, Spirito, and
Terranova’s seniority dates are September 12, April 27 and 18, 2011,
respectively. (GC Exh. 17.)
Criscola testified that because the lead engineer on the Route
78 job was employed by Ferreira Construction, and not Crisdel,
Weaver and Vaccaro were unable to place Crisdel employees
on the job without Ferreira’s consent. (Tr. 191, 198–199.)
However, Weaver testified that Ferreira’s lead engineer dis-
cussed with him, “what guys we were going to put on the job
and if there was a need for outside help,” indicating that Re-
spondent had a more significant level of hiring authority. (Tr.
240.) Indeed, Vaccaro testified that the spreadsheets specifying
the employees and job assignments for the Route 78 job were
prepared by Weaver, not by the lead engineer for Ferreira. (Tr.
356–357.) In addition, Respondent’s payroll records establish
that other employees, at least four of whom had equal or less
“seniority” than Morales, performed work at other jobsites
which Morales was competent to perform during March and
April. (GC Exh. 11, pp. 284, 298, 307, 349, 355, 366, 367,
373, 389, 390.)18 The evidence also establishes that during the
period of time that Respondent contends that it had no work for
Morales at any other jobsite, an operator named Antonio Afon-
so was rehired to perform both dirt and paving work. (Tr. 305–
306; GC Exh. 11, pp. 349, 366; GC Exh. 18.) Subsequently, in
late May and June after Morales had received his union book,
Respondent obtained newly referred employees from the Local
825 hiring hall, instead of recalling Morales. (GC Exh. 13.)
All of this evidence casts doubt upon Respondent’s contention
that it laid Morales off because there was no additional work
available for him at its other jobsites.
For all of the foregoing reasons, the evidence does not sub-
stantiate Respondent’s contention that it legitimately laid off
Morales because work at the Florham Park jobsite was ending,
and there was no other work available which Morales could
perform. As a result, I find that Respondent’s asserted reasons
for Morales’ layoff are pretextual, and that Morales was laid off
because, as Weaver and Vaccaro stated, he was expelled from
Local 825. By laying off Morales in retaliation for his expul-
sion, Respondent violated Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Crisdel Group, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The International Union of Operating Engineers, Local
825 is a labor organization within the meaning of Section 2(5)
of the Act.
3. By laying off Ramon Joseph Morales on March 2, 2012,
because of his expulsion from Local 825, Respondent violated
Section 8(a)(1) and (3) of the Act.
4. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.

18 These four employees are Tracey Anzano (hire date April 18,
2011), Kevin Franks (hire date March 10, 2012), Nikki Glabb (hire date
May 4, 2011), and Howard Lynch (hire date April 18, 2011). (GC Exh.
17.)
CRISDEL GROUP, INC. 761
THE REMEDY
Having found that Respondent has violated Section 8(a)(1)
and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action necessary to ef-
fectuate the Act’s purposes.
Having found that Respondent violated the Act by discharg-
ing Ramon Joseph Morales, Respondent shall be ordered to
reinstate Morales to his former or substantially equivalent posi-
tion, dismissing, if necessary, any employees hired subsequent-
ly, without prejudice to Morales’ seniority or other rights and
privileges Morales previously enjoyed. Respondent shall fur-
ther be ordered to make Morales whole for any loss of earnings
he may have suffered as a result of its unlawful conduct, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as set forth in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010), enf. denied on other grounds 647
F.3d 1137 (D.C. Cir. 2011). Respondent shall file a report with
the Social Security Administration allocating backpay to the
appropriate calendar quarters, and shall compensate Morales
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year. Latino Express, Inc., 359 NLRB 518 (2012). Finally,
Respondent shall be ordered to post a notice informing its em-
ployees of its obligations herein.
[Recommended Order omitted from publication.]