D.C. Scaffold, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 19, 2004

01-CA-041294 (N.L.R.B. May. 19, 2004)

JD–48–04
Boston, MA

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

D.C. SCAFFOLD, INC.

and Cases 1–CA–41294
1–RC–21685
NEW ENGLAND REGIONAL COUNCIL OF
CARPENTERS, a/w UNITED BROTHERHOOD
OF CARPENTERS & JOINERS OF AMERICA,
AFL–CIO

A. Susan Lawson, Esq., for the General Counsel.
Carol Chandler, Esq. and Macon P. Magee, Esq.
(Stoneman, Chandler & Miller, LLP), of Boston,
Massachusetts, for the Respondent.
Aaron D. Krakow, Esq. (Krakow & Souris, LLC),
of Boston, Massachusetts, for the Charging Party.

DECISION

Statement of the Case

JOSEPH GONTRAM, Administrative Law Judge. This case was tried in Boston,
Massachusetts, on February 4 and 5, 2004. The charge in Case 1–CA–41294 was filed on
October 3, 2003, and was amended on December 4, 2003. The complaint was issued on
December 19, 2003.1 D.C. Scaffold, Inc. (Respondent) filed an answer to the complaint on
December 30 in which it admitted jurisdiction, its employer status under the National Labor
Relations Act (the Act), and the labor organization status under the Act of New England
Regional Council of Carpenters, a/w United Brotherhood of Carpenters & Joiners of America,
AFL–CIO (the Union). The Respondent denied committing any unfair labor practices. A notice of
hearing on challenges and Order consolidating Cases 1–RC–21685 and 1–CA–41294 was
issued on January 7, 2004. The issues are as follows:

1. Did the Respondent violate Section 8(a)(1) of the Act by its actions and statements to
its employees on October 2, 2003?

2. Did the Respondent violate Section 8(a)(3) and (1) of the Act by discharging six
employees on October 2, 2003?

3. If the Respondent unlawfully discharged six employees on October 2, did it make valid
offers of reinstatement on October 3? If so, did the employees reject such offers?

4. Were the six discharged employees, and/or five of the six employees who were hired
1 All dates are in 2003 unless otherwise indicated.

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shortly after the discharges, entitled to vote in the election on October 30?

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Respondent, and the Charging
Party, I make the following

Findings of Fact

I. Jurisdiction

The Respondent, a corporation with an office and a place of business in East
Bridgewater, Massachusetts, is engaged in the installation, erection, and removal of scaffolding
material in Massachusetts and throughout the New England area. During the 12-month period
preceding the filing of the instant complaint, the Respondent leased scaffolding valued in excess
of $50,000 from other enterprises that are directly engaged in interstate commerce. The
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning
of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. Background

John DeGrenier is the owner of the Respondent. Jason Lewis, who the Respondent
admits is a supervisor and an agent within the meaning of Section 2(11) and (13) of the Act, is a
salesman and estimator for the Respondent. During the period involved in this case, the
Respondent had 10 employees, including DeGrenier’s wife. John McCann and Richard
Guevremont were working foremen for the Respondent, and John Emmert, Stanley Moore, Jon
Olinger, and Thomas O’Day were workers. Emmert started working for the Respondent in early
2001; Olinger, McCann and Moore started in approximately 1997; and Guevremont started
working for the Respondent in June 2003. When Guevremont was hired, he told DeGrenier that
he was a union member and he did not want to lose his union benefits by being out of the Union
too long. DeGrenier said that he would consider becoming a union company, but not at that
particular time. The normal workweek of the Respondent is Monday through Friday, 7 a.m. to
3:30 p.m. On occasion, there was Saturday work, but no employee was required to work on a
Saturday.

B. Union activity

In mid-September 2003, John O’Connor, an organizer for the Union, met with the
Respondent’s workers at a jobsite in Plymouth, Massachusetts, and discussed the Union with
them.2 After O’Connor left, Guevremont called Lewis who was upset at the news that a union
organizer had visited the jobsite. Lewis asked Guevremont why he had not simply told O’Connor
to leave. Guevremont replied that he wanted to protect his union standings.

On September 25 at a parking lot in Dorchester, DeGrenier held a meeting with all of the
workers. He stated he was upset that some workers were leaving jobsites early in the day and
that not enough of the workers were volunteering for weekend work. He told the workers to
discuss the matter with their families and to decide “where [they] wanted to go with the
2 All cities and jobsites are in Massachusetts unless otherwise indicated.

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company.” (Tr. 25, 258.)3 After this meeting, the workers first decided to talk with the Union.
Olinger contacted O’Connor and a meeting was arranged for September 29 at the union hall.
Emmert, McCann, Moore, O’Day, and Olinger attended this meeting. On October 1, these five
employees returned to the union hall and signed union authorization cards and a petition for
recognition. Guevremont signed a union authorization card and the petition the next morning,
although he was already a member of the Union. There is no evidence that the cards or the
petition were ever presented to the Respondent.

C. Events of October 2

On Thursday, October 2, at 7 a.m., O’Connor met with the Respondent’s employees at
their jobsite in Winchester. Present were Emmert, Guevremont, McCann, Moore, and O’Day.
Olinger had not yet arrived at the jobsite because he was picking up materials for the job. The
employees selected Emmert to call DeGrenier and advise him of their decision to be
represented by a union. Emmert used his cell phone to call DeGrenier. Emmert told DeGrenier
that six employees wanted to speak to him, they had considered his instruction that they should
decide where they wanted to go with the company, and they had decided to go union. Emmert
told DeGrenier that the workers would not work until DeGrenier talked to a union representative.
DeGrenier asked Emmert if he was speaking for all the employees at the site, and Emmert
replied that he was.4

DeGrenier’s reaction was immediate, antagonistic, threatening, and crude. He told
Emmert that “You guys want to f—ing go union? You can’t even do non-f—ing union jobs. How
the f— do you think you can do union jobs? Tell those f—ing guys if they don’t want to f—ing
work, to f—ing go home.” (Tr. 26, 50, 261.) DeGrenier told Emmert that if the workers wanted to
talk to him, they should call him. Emmert replied that they would not talk to DeGrenier
individually, but as a group. DeGrenier repeated that if the workers did not want to work, they
should pack up, leave the job, and go home. After the telephone call ended, Emmert told the
workers what DeGrenier said.

Less than a minute after this conversation, DeGrenier called Guevremont on his cell
phone. DeGrenier was aware that Guevremont had been a member of the union before he
started working for the Respondent. DeGrenier told Guevremont, “Richie, I can’t f—ing believe
you did this to me,” implying that Guevremont was the employee responsible for initiating the
union activity among the workers. (Tr. 59.) Guevremont denied that he had initiated the union
activity. DeGrenier told Guevremont that if the employees were not going to work, they should
“pack up their shit and get off the job and he would come and get all the stuff [viz., cell phones,
credit cards, and trucks],” and that they should go home. (Tr. 59, 220.) Guevremont, Olinger,
and McCann had been issued company trucks, cell phones, and credit cards by the
Respondent.

In spite of DeGrenier’s instruction that the employees should leave the jobsite and go
3 References to the transcript of the hearing are designated as Tr.
4 All facts found here are based on the record as a whole and on my observation of the
witnesses. The credibility resolutions have been made from a review of the entire testimonial
record and exhibits with due regard for logic and probability, the demeanor of the witnesses,
and the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962). As to those witnesses
testifying in contradiction of the findings, their testimony has been discredited, either as having
been in conflict with the testimony of reliable witnesses, or because it was incredible and
unworthy of belief, or as more fully explained in the text.

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home, and in spite of Emmert’s initial statement to DeGrenier that the employees wanted him to
speak to a union representative before returning to work, the employees decided that they
would not refuse to work. Accordingly, they agreed to finish the job and to wait for Olinger to
deliver materials.

DeGrenier next called Olinger who was enroute to Winchester with materials for the job.
DeGrenier told Olinger that Emmert had called and had asked DeGrenier to speak to a union
representative. DeGrenier asked Olinger if he was involved in this. Olinger told him yes, “I’m the
sixth guy.” DeGrenier responded, “F— you guys. If you think I’m going union, you’re f—ing
crazy.”5 DeGrenier repeated to Olinger that if the employees did not want to work, they should
go home. Olinger attempted to reply to these statements, but DeGrenier cut him off. DeGrenier
blamed Guevremont for starting the union activity amongst the workers, for “filling [their] heads
with ‘crap.’” Olinger replied that he, not Guevremont, had initiated the contacts with the Union.
(Tr. 87–88.) DeGrenier then said that he would never go union, he hates unions, and he would
rather shut his doors than go union.

DeGrenier testified that during these conversations he did not mention unions or the
employees’ decision to go union. (Tr. 352.) This testimony is not credible. DeGrenier
acknowledges that Emmert told him the employees had decided to go union and would not work
until he talked to a union representative. DeGrenier also admits that he was “pretty mad” when
he talked to Guevremont. DeGrenier would reasonably and probably have responded to
Emmert’s, Guevremont’s, and Olinger’s statements by saying something about the Union or the
employees’ union activity. Moreover, throughout his testimony, DeGrenier’s demeanor evoked a
person who was opinionated and who had firm antiunion opinions. It is likely that these feelings
would have surfaced after being told that his workers had decided to go union and would not
work until DeGrenier talked to a union representative.

DeGrenier’s demeanor showed a person who held fast to his opinions, the most
prominent of which, for purposes of this case, was his dislike of unions. This overarching bias,
demonstrated by and consistent with his demeanor and his antiunion statements to his
employees, substantially undermines his credibility. Accordingly, in those admittedly few
instances in which DeGrenier’s testimony is in conflict with the testimony of the employees, I
have generally credited the testimony of the employees. Moreover, the credibility of the
employees’ testimony is enhanced by the general consistency in the employees’ descriptions of
what occurred during and after the union activity.

The low opinion DeGrenier has for unions, as reflected in the statements to his
employees on October 2, is consistent with antiunion statements he has made in the past.
Olinger testified, credibly, that DeGrenier hates unions because in every union job the
Respondent has ever been involved with, DeGrenier talks about how he cannot stand unions.
Also, when DeGrenier’s brother’s company became unionized in the spring of 2003, DeGrenier
told Olinger that he would “never go union.” (Tr. 89.)

Olinger drove to the Winchester jobsite, and the employees continued working until the
materials were exhausted. While the employees were still at the Winchester site, DeGrenier
5 (Tr. 87.) DeGrenier admits that he made the statement, but he misreads the portion of the
transcript that contains his statement. DeGrenier said, “if you think I’m going union, you’re f—ing
crazy.” He did not say, “if you think I am union, you are f—ing crazy.” See Respondent’s Br., p.
6. The difference could be significant because the former, actual statement contains a direct
threat whereas the threat in the latter statement is, at most, implied.

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called McCann. The telephone call was made at approximately 12 noon. DeGrenier had already
driven to McCann’s house in order to pick up McCann’s company truck, but discovered that the
truck was not there. DeGrenier asked McCann where he was, and McCann responded that he
and the other workers were still at the Winchester jobsite. McCann asked DeGrenier what
should be done with the extra equipment that was still at the jobsite, demonstrating that the
employees were still working and would continue to work. DeGrenier became irate. He told
McCann, “I f—ing told you guys to go home. You guys might as well go collect [unemployment
benefits] because you’ll never work for D.C. Scaffold again.” (Tr. 222.) McCann told the
employees what DeGrenier said. They then left the jobsite.

The conversation between DeGrenier and McCann, who was the foreman on the job,
shows that although Emmert had initially told DeGrenier that the workers had decided to go
union and would not work until DeGrenier talked to a union representative, the workers’ position
on working had changed after DeGrenier’s vehement reaction to that news. The workers still
wanted DeGrenier to talk to a union representative, but they were willing to work, and had
continued to work after Emmert’s conversation with DeGrenier. Thus, the only outstanding
request of the employees during McCann’s telephone conversation with DeGrenier was that the
employees wanted to go union and wanted DeGrenier talk to a union representative.
DeGrenier’s reaction was to discharge the six employees and tell them that they would never
work for the Respondent again.

DeGrenier went with Jason Lewis and Ray McLaughlin, a worker who had not engaged
in union activity, to the residences of McCann, Olinger, and Guevremont, and retrieved the
company’s trucks, cell phones, and credit cards. DeGrenier told Lewis that he had discharged
the six workers. While at Olinger’s residence, DeGrenier and Olinger had further discussions.
DeGrenier asked Olinger how the employees could “ambush him” like they did. He said, “I’m not
going union. If you think I’m going union you’re crazy.” DeGrenier said that the company was
finished, and the employees had kicked him in the mud. Olinger tried to explain that the
employees just wanted DeGrenier to sit down and talk with the union representative. DeGrenier
told Olinger, “F— that. I’m not going union. I’m not talking to anyone.” (Tr. 92, 93.) DeGrenier
continued to believe that Guevremont had initiated the union activity with the employees, but
Olinger told him that he (Olinger) had initiated the contacts with the Union, not Guevremont. At
Guevremont’s residence, DeGrenier repeated his belief that Guevremont had started it, and
although Guevremont denied it, DeGrenier was not convinced. DeGrenier told Guevremont that
he would try to get to the bottom of it, i.e., who had started the union activity among the
employees. (Tr. 61.)

D. Events of October 3–5

On October 3, the Union filed an unfair labor practice charge against the Respondent
because of DeGrenier’s alleged unlawful discharge of the six workers. DeGrenier learned in the
morning of October 3 that the charge had been filed. On the same day, DeGrenier sought legal
counsel. DeGrenier went to the attorney’s office with Lewis, and from the attorney’s office,
DeGrenier telephoned Guevremont, Emmert, and Olinger in an alleged attempt to offer them
reinstatement. He reached Guevremont at about 5 p.m. and asked if he was interested in
working the next day, a Saturday. DeGrenier knew that Guevremont did not work on Saturdays.
Nevertheless, Guevremont told DeGrenier he would think about it. DeGrenier reached Emmert
at about 6 p.m., and asked if he wanted to work the next day saying, “I have work for you
Saturday . . . do you want to work, yes or no?” (Tr. 29.) Emmert told DeGrenier that he was not
going back to work until he talked to a union representative. DeGrenier said “okay,” and hung
up.

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DeGrenier also telephoned Olinger on October 3 and asked him if he wanted to work the
next day. Olinger questioned the sincerity of DeGrenier’s offer in light of DeGrenier’s actions the
day before, and DeGrenier laughed saying, “No, I didn’t fire you. I was just laying everyone off
because I’m going down to one crew.” (Tr. 94.) A crew consisted of three workers. Olinger said
he could not work Saturday, and DeGrenier asked, “what about Monday?” Olinger responded
that he could not. Olinger again doubted DeGrenier’s sincerity in making the offer. Moreover,
DeGrenier’s claim that the workers had not been discharged and that they had simply been laid
off because the Respondent was going down to one crew was inconsistent with DeGrenier’s
vehement and decisive reaction to the news that the employees had decided to go union. In
addition, Olinger had previously told DeGrenier that he could not work on Monday because of a
doctor’s appointment. For all of these reasons, Olinger reasonably doubted the sincerity of
DeGrenier’s purported offer of work.

To the extent that the above recounting of the telephone conversations between
DeGrenier and the employees differs from the testimony of DeGrenier, I have credited the
testimony of the employees, with one qualification. I have based this credibility determination on
the demeanor of the witnesses, as well as the following. Lewis was present for the telephone
calls made by DeGrenier, and the Respondent called Lewis as a witness. However, the
Respondent did not ask Lewis about what he heard DeGrenier say during those conversations.
Indeed, at one point, the Respondent specifically directed Lewis away from telling what he
heard DeGrenier say during the conversations. (Tr. 146.) (Such testimony would not have been
barred by the hearsay rule because it could have been offered solely to prove that DeGrenier
made the statements, not to prove the truth of the statements.) Emmert, Guevremont, and
Olinger testified before Lewis testified, and they described their conversations with DeGrenier
on October 3. If these descriptions were inaccurate, Lewis would likely have been asked, at
least, what he heard DeGrenier say during the conversations. Moreover, the credibility of
DeGrenier’s statement that the workers were not fired, but rather were laid off because he was
going down to one crew, is belied by Lewis’s testimony concerning the large number of jobs that
were pending, and by DeGrenier’s hostile, confrontational, and antiunion statements to the
discharged workers on October 2.

The qualification in assessing credibility regarding what was said during the various
telephone conversations concerns Guevremont. Guevremont provided an affidavit to the Board
during its investigation of this case in which he stated that he had reported to Blackstone Street
on October 6 with the other employees. This statement was false. Guevremont credibly testified
at the hearing that his reason for making this false statement was his fear of being deprived of a
remedy for his discharge. However, this fear does not excuse his false statement. Therefore, in
any instance in which Guevremont’s testimony conflicts with DeGrenier’s testimony regarding
the substance of their conversation, and in the absence of other corroborating evidence, I have
credited the testimony of DeGrenier. Under the circumstances of this case, no other corrective
action or sanction is warranted. See Brother Industries, 314 NLRB 1218 (1994) (where the
judge credited the testimony of two witnesses who made false statements in Board affidavits
and found that other sanctions would not reasonably effectuate the purposes and policies of the
Act.).

DeGrenier did not state during his telephone discussions with Emmert, Guevremont, and
Olinger that they were being offered “reinstatement” to their jobs. DeGrenier simply said that he
had some work on a particular day, Saturday or Monday. Nor did DeGrenier offer to return the
workers’ trucks, cell phones, or credit cards that they had been required to relinquish upon their
discharge. A truck was especially important to Guevremont who used the truck to get to and
from the jobsites. Indeed, DeGrenier’s offer of the use of a company truck was an important
reason in Guevremont’s decision to accept employment with the Respondent the previous June.

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On the same day, October 3, that he made these telephone calls, DeGrenier sent letters to all
six of the workers. The letters were sent by overnight mail. DeGrenier sent the following letter to
Emmert:

On Friday afternoon, I called you at your home and offered to return you
to your job with D.C. Scaffold. I asked you if you would return on
Saturday, October 4th or Monday, October 6th, 2003. You told me that
you would not return to work until I spoke to the “Union Rep.”

I wish you luck in the future.

DeGrenier sent the following letter to Olinger:

On Friday afternoon, I called you at your home and offered to return you
to your job with D.C. Scaffold. I asked you if you would return to work on
Saturday, October 4th or on Monday, October 6, 2003. You asked me if
I were out of my mind and told me you would not return to work.

I wish you the best of luck in the future.

DeGrenier sent the following letter to Guevremont, McCann, Moore, and O’Day:

This is to inform you that I am offering you reinstatement to your position
at D.C. Scaffold. Please report to 46 Blackstone Street, Cambridge,
Massachusetts at 7:00 a.m. on Monday, October 6, 2003.

Directions were not provided, and the letter failed to give any description of the work site
or whom the workers were supposed to meet at the work site or what the job entailed. After the
employees received these letters, all except Guevremont (who, without the company truck, was
unable to get to the Cambridge site) conferred with the Union and decided to report to the job
set forth in the letter at 46 Blackstone Street, Cambridge on Monday, October 6, at 7 a.m.

Despite these apparent attempts to rehire the six discharged workers, DeGrenier placed
an advertisement for replacement scaffold workers in two newspapers on the same day he
made the telephone calls and sent the overnight letters. Indeed, the advertisement was placed
before DeGrenier made the apparent attempts to rehire the workers. Nevertheless, in spite of
his alleged attempt to rehire the workers, DeGrenier did not cancel the newspaper
advertisement, which sought workers to replace the very workers he supposedly was attempting
to rehire.

On Sunday, October 5, Guevremont telephoned DeGrenier about the letter he had
received. Guevremont asked DeGrenier whether he would provide a company truck to
Guevremont as he had done previously. Guevremont reminded DeGrenier that he needed the
truck to get to and from the jobsite. DeGrenier replied that the truck was in the shop. The
Respondent owns seven trucks, and when Guevremont asked if another truck could be
provided, DeGrenier replied that every truck was in the shop. This obvious falsehood6 provoked
Continued
6 DeGrenier acknowledged at the hearing that Guevremont’s truck was the only truck he
brought to the repair shop. Of course, DeGrenier must have appreciated by the time of the
hearing the patent falsehood of his statement to Guevremont, especially since he knew he was
going to testify at the hearing that he and another worker drove two of the Respondent’s trucks

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_________________________
a heated exchange and they hung up on each other.

In assessing the credibility of DeGrenier’s statement that all of the Respondent’s trucks
were in the shop, the following matters were considered in addition to DeGrenier’s demeanor.
First and foremost, the extreme unlikelihood that all seven of the Respondent’s trucks would
suddenly and all at once require repairs or maintenance work. Second, the equally extreme
unlikelihood that, even if all seven trucks needed maintenance work, they would all be placed
out of service at the same time. Also, the Respondent presented no objective or independent
evidence that any of the trucks had mechanical problems or were in the shop. Indeed,
DeGrenier and Lewis had picked up three of the trucks on October 2 from Guevremont,
McCann, and Olinger and drove the trucks back to the Respondent’s place of business.
Moreover, at least three of the Respondent’s trucks were used for the Cambridge job on
October 6. Indeed, the Respondent would not be able to operate without having trucks for its
use because the Respondent used the trucks to pick up and deliver the scaffolding materials for
its jobs. DeGrenier knew that Guevremont needed a truck to get to work sites. In spite of this, or
possibly because of it, DeGrenier disingenuously told Guevremont that a truck could not be
provided to Guevremont because all of the trucks were in the shop. Guevremont did not have
transportation to work on October 6, and he did not report to the Cambridge work site.7

E. Events of October 6

Blackstone Street in Cambridge is approximately one, rather long block in length. It is
bounded on either side by River Street and Western Avenue. On October 6, 2003, the only
construction activity in the block was at a building in approximately the middle of the block.
There was no construction activity at 46 Blackstone Street. Generally, the Respondent’s jobs
are at construction sites. The building at 46 Blackstone Street is at the corner of Blackstone
Street and Western Avenue, but the entrance to the building is not on Blackstone Street. There
are few address markers on the buildings on Blackstone Street and there was no address
marker on 46 Blackstone Street on October 6. However, on the building adjacent to the parking
lot in front of and next to 46 Blackstone, there were address markers of “24” and “26,”
consecutively in the direction of Western Avenue. The parking lot in front of 46 Blackstone
Street is gated, and on October 6 the gates were closed. Adding to the confusion of addresses
on the block, the building opposite the construction site in the middle of the block lists its
address on Blackstone Street as 840 Memorial Drive.

McCann, O’Day, and Olinger went together to the Cambridge site. They arrived at
approximately 6:30 a.m. They were unable to locate the address of 46 Blackstone Street, and
after once driving the length of Blackstone Street, they saw a union organizer, Vincent Scalisi, at
the construction site in the middle of the block. They parked in the parking area of this
to the Cambridge work site on October 6. DeGrenier claimed to have a receipt for the repairs to
Guevremont’s truck, but he failed to produce the receipt at the hearing. Thus, DeGrenier’s
testimony that he took even one truck, Guevremont’s, into the shop for repairs is not credible.
7 Guevremont provided an affidavit to the Board in its investigation of the charges in this
case. Guevremont falsely stated in that affidavit that he had gone to the Cambridge work site on
October 6. At the hearing, Guevremont acknowledged that he made this false statement
because he was fearful he might have forfeited benefits if he admitted not reporting to the
Cambridge work site. This explanation for his false statement does not excuse the fact that
Guevremont testified falsely in order to protect benefits for which he might be eligible. I conclude
that Guevremont’s testimony should not be accepted except to the extent that other witnesses
or other evidence in the case corroborates it.

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construction site and waited with Scalisi on the sidewalk at the construction site. After a short
period, Scalisi and McCann approached two elevator workers at the site and asked them if
scaffolding was going to be erected. The elevator workers responded that they did not know.

Shortly before 7 a.m., Moore and Emmert arrived together. Entering Blackstone Street
from Western Avenue, they also were unable to locate 46 Blackstone Street. They spotted
McCann on the sidewalk and parked their vehicle in the same parking lot next to the
construction site. The five workers, McCann, O’Day, Olinger, Moore, and Emmert, together with
Scalisi, waited on the sidewalk and scanned the entire block looking for the Respondent’s trucks
or DeGrenier or anyone else from the company who could point them to the location of the work
site. Moore walked the length of Blackstone Street trying to find, without avail, number 46 or the
site where the job was supposedly scheduled. After a period of time, they began discussing the
possibility that DeGrenier had not been serious about his offer of work and had sent them on a
“wild goose chase.”

Lewis knew where 46 Blackstone Street was located because he had been there when
he estimated the job about a month before October 6. Lewis arrived at approximately 7 a.m. He
parked his truck across Blackstone Street from the building. This was a truck Lewis had used for
years and the workers were familiar with it. After about 10–15 minutes, Lewis left in his truck
and went to a coffee shop. When Lewis returned, he parked in the same location across from 46
Blackstone Street. Lewis did not see the workers who were standing on the sidewalk in the
middle of the street, and the workers did not see Lewis who was parked at the end of the street.

As the workers waited, they became increasingly angry at what they became convinced
was a wild goose chase. Scalisi was concerned about the rising level of tension and anger of
the men. The workers believed that DeGrenier had gotten back at them for their decision to go
union, that there was no work to be done on Blackstone Street, and that no one from the
company would be coming to meet them. Accordingly, the workers left at approximately 7:30–
7:45 a.m.

DeGrenier arrived at approximately 7:45–8:00 a.m. He arrived with two trucks, which
were loaded with the scaffolding materials, and three workers, Ray McLaughlin, Roger Russell,
and Sal Smarra. DeGrenier could see Lewis’ truck and parked near it. DeGrenier, with Lewis
and the 3 workers, entered the property through the gated parking lot, spoke to the guard who
was stationed inside a trailer on the lot, and received permission to begin the scaffolding work.
When Lewis estimated the Blackstone Street job, he estimated that the job would be completed
in 2 days. In fact, it was completed in 2 days despite the fact that none of the workers to whom
DeGrenier had sent letters on October 3, and whom DeGrenier was supposedly expecting to be
meeting that morning and working on the job, actually worked on the job. There is no evidence
that the Respondent expended any extra effort, money, or materials to complete the job in a
timely manner.

In the past, whenever materials or supplies for a job were late in arriving, DeGrenier or
Lewis would telephone the employees to advise them of the situation and the expected time the
materials would arrive. The employees were paid for their waiting time. DeGrenier was unable
to call the employees on October 6 because he had taken their cell phones from them on
October 2 and had not returned them. Also, there is no evidence that he wanted to call them,
intended to call them, or otherwise tried to get in touch with them on October 6. Similarly, the
employees were unable to call DeGrenier or Lewis on October 6 because they did not have cell
phones. Scalisi did have a cell phone, but there is no evidence that the employees with him
knew this. Moreover, just as with DeGrenier, there is no evidence that the employees wanted to
call DeGrenier, intended to call him, or otherwise tried to get in touch with him on October 6. On

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October 6, the relationship between DeGrenier and the employees was strained and mistrustful,
primarily due to DeGrenier’s heated, confrontational, and antiunion reaction to the employees’
decision to go union.

In setting forth what occurred at the Cambridge work site in the morning of October 6, I
have generally credited the testimony of all the persons who were there, including the General
Counsel’s five witnesses as well as the Respondent’s two witnesses. Their testimony is not
necessarily inconsistent, and it is certainly possible that everything occurred as both sides
testified and as found herein, but simply failed to see each other that morning. In short, I find the
testimony of these witnesses in describing the events of that morning to be credible.

After being advised of the possibility that both the Respondent and the workers were
present at the work site on October 6, but had not seen each other, and in order to resolve any
confusion that may have occurred on October 6, the Union faxed a letter to the Respondent on
October 10 stating that the six workers wished to be reinstated. However, the Respondent had
started hiring replacement workers on Saturday, October 4, and had hired other workers during
the week of October 6. Moreover, DeGrenier considered the employees’ failure to appear at the
Cambridge site on October, or at least his belief that they had not appeared, to constitute a
rejection of his reinstatement offer on October 4. Accordingly, the Respondent declined to
reinstate the six employees.

F. Replacement workers/Voter eligibility

DeGrenier hired the following workers after he discharged the above-named six
employees: (1) Leo DeGrenier, (2) William Sims, (3) Robert Young, (4) Paul Ruginski, and (5)
Gary Russell.8 These replacement workers voted in the election on October 30, and their
eligibility was challenged by the Union.

Leo DeGrenier was not working at the time he was hired, October 4, and he was not a
trained or certified scaffolder. Before working for his brother, he was a truck driver earning
$14.75 an hour. His wage during the time he worked for his brother was $10 per hour.
DeGrenier told Leo that he was only needed temporarily—for 2 months—in order to get
DeGrenier through the crisis caused by the loss of the other employees.

William Sims has been DeGrenier’s friend since high school. For 24 years, he has been
employed full time by State Street Bank as a systems analyst, and he continues to be so
employed. His annual salary at State Street Bank is $60,000. He and DeGrenier claim that he
completed an application to work as a scaffolder for the Respondent on October 8. Sims
remembers that date because it is his wedding anniversary. During his first 15 years at the
bank, Sims worked a 3-day week. For an unknown length of time during a 15-year period, Sims
worked part-time for another scaffolding company. For the past 9 years, Sims has worked a 5-
day week, with a day off every other week. Sims represented on his employment application
with the Respondent that he worked at the State Street Bank in his “spare time”. He did not sign
this application. He claims that he was hired at the rate of $13 per hour. He claims that he
intended to work at nights and on weekends, and that he intended to work full time and
permanently for the Respondent. In fact, he worked for 2 months, and has not worked for the
Respondent since the end of November 2003. At the time Sims was hired, the Respondent only
had one pending evening job.
8 The Respondent also hired Dale Beausoleil. Mr. Beausoleil continues to be employed by
the Respondent and his ballot was not challenged.

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Robert Young has also been DeGrenier’s friend since high school. He also has a full
time job—as a telephone solicitor from which he earns $50,000 per year. He claims that he
intended to work full time during afternoons and evenings. As noted above, during this period,
the Respondent only had one job requiring evening work. Young had never before worked as a
scaffolder. Young worked for the Respondent for 2 months, and has not worked for the
Respondent since the end of November 2003.

Paul Ruginski is a friend and business partner of Lewis. Unlike Leo DeGrenier, Sims,
and Young, Ruginski has worked in the scaffolding business for many years. He had worked as
a scaffolder up to 1993 when he sustained serious injuries from a fall. He did not work again as
a scaffolder after that injury until the Respondent hired him in October 2003. He claims that he
intended to perform supervisory work for the Respondent. However, his wage with the
Respondent was $10 per hour, the starting rate of pay for a scaffolder. Moreover, Ruginski had
worked for the Respondent in October 2002 as a management consultant during which he
earned $25 per hour. Prior to that position, Ruginski worked in a management position for
another scaffolding company at a yearly salary of $40,000. Like all of the alleged replacements
hired by the Respondent in October, Ruginski worked for 2 months, and has not worked for the
Respondent since the end of November 2003.

The Respondent hired Gary Russell on or about October 8. He was fired before the end
of November because he failed to come into work for 2 days in a row. DeGrenier fired Russell
on the second day he failed to show up. Russell did not testify at the hearing, and the
Respondent failed to produce any evidence regarding Russell’s qualifications, the
circumstances of his being hired, or how his hiring can be distinguished from the circumstances
surrounding the hiring of the individuals described above.

The Union filed a petition on October 6. An election was held on October 30. Each of the
six discharged employees voted, and their eligibility to vote was challenged because their
names were not included on the list of eligible voters submitted by the Respondent. The Union
challenged the ballots of the five replacement employees detailed above. The eleven
challenged ballots were sufficient to affect the results of the election. The challenged ballots
raise some of the same issues set forth in the unfair labor practice complaint. Accordingly, the
cases were consolidated.

III. Analysis

A. Case 1–CA–41294

1. Interrogations

The test for determining whether an unlawful interrogation has occurred is whether,
under all the circumstances, the alleged interrogation reasonably tends to restrain, coerce, or
interfere with employees in the exercise of rights guaranteed by the Act. Rossmore House, 269
NLRB 1176 (1984), affd. sub nom. Hotel Employees Union Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985). In making this determination, all of the surrounding circumstances must be
considered. Either the words themselves or the context in which they are used must suggest an
element of coercion or interference. Id. Relevant circumstances include (1) the background, (2)
the nature of the information sought, (3) the identity of the questioner, (4) the place and method
of the interrogation, and (5) the truthfulness of the reply. Bourne v. NLRB, 332 F.2d 47, 48 (2d
Cir. 1964). Additional factors include whether the employee was given assurances that there
would be no reprisals, whether a valid purpose for the question(s) was communicated to the

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employee, and whether the employee is an open union adherent. Performance Friction Corp.,
335 NLRB 1117 (2001); Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). These factors
should not be applied mechanically, and the analysis does not require strict evaluation of each
factor. Medcare Associates, Inc., 330 NLRB 935 (2000).

The General Counsel contends that DeGrenier unlawfully interrogated Emmert when he
asked if Emmert was speaking for all the employees. Although DeGrenier asked his question
amidst strident and coarse invectives, the question simply sought a repetition of the information
that Emmert had already provided to DeGrenier, as if DeGrenier could not believe that Emmert
was speaking for all six employees. Emmert had started the conversation by telling DeGrenier
that he was speaking for the employees. Under these circumstances, I reject the contention that
DeGrenier’s question to Emmert constituted unlawful interrogation under the Act.

Shortly after his conversation with Emmert, and during an expletive-filled diatribe,
DeGrenier asked Olinger if he was involved in the union activity. Olinger replied that he was
involved, that he was the sixth guy. DeGrenier’s question, a direct attempt to uncover the union
sympathies of an employee, was made in the context of heated, antiunion statements by the
owner of the company. No assurances were given to Olinger nor did DeGrenier offer any valid
purpose for the question. Moreover, the coerciveness of the questioning is highlighted by,
although not dependent on, DeGrenier’s apparent intent or desire to possibly take retaliatory
action. This intent is demonstrated by DeGrenier’s accusation that Guevremont had started the
union activity by “filling [the employees’] heads with ‘crap.’” Why should it matter to DeGrenier
who started the union activity, unless he planned some retaliation? DeGrenier’s interrogation of
Olinger, in which he attempted to uncover Olinger’s union sympathies, reasonably tends to
restrain, coerce, and interfere with the exercise of rights guaranteed by the Act. Parts Depot,
Inc., 332 NLRB 670, 674 (2000) (a supervisor’s “remarks, delivered in an angry and elevated
tone, contained an implied threat of unspecified reprisals. An interrogation of an open and active
union supporter, coupled with such a threat, is coercive and a violation of Section 8(a)(1).”).
Accordingly, DeGrenier’s interrogation of Olinger violated Section 8(a)(1) of the Act.

DeGrenier’s interest in uncovering who started the union activity continued during his
conversation with Guevremont. DeGrenier knew that Guevremont was a member of the Union,
and he assumed that Guevremont had planted the seeds of organizing among the employees.
Accordingly, DeGrenier told Guevremont, ““Richie, I can’t f—ing believe you did this to me.”
Implied or indirect questioning by an employer may constitute interrogation in violation of the
Act. Ready Mix, Inc., 337 NLRB 1189 (2002). DeGrenier’s statement to Guevremont was
designed to elicit from Guevremont an affirmation or denial of his role in initiating the union
activity. NLRB v. McCullough Environmental Services, 5 F.3d 923, 929 (5th Cir. 1993).
DeGrenier’s statement to Guevremont “begs a reply,” and Guevremont did reply by insisting that
he had not initiated this activity. See Continental Bus System, 229 NLRB 1262, 1264–65 (1977).
Under all of the circumstances, DeGrenier’s statement to Guevremont constitutes an unlawful
interrogation in violation of Section 8(a)(1) of the Act.

2. Threats

(a) Threat to discharge employees

On October 2, DeGrenier—after learning that the employees had continued working at
the jobsite until their materials were exhausted and were ready to continue working—told
McCann that the employees should go home and that they would never work for D.C. Scaffold
again. The Respondent claims that DeGrenier ordered the employees to leave the job and go
home because of their refusal to work until DeGrenier spoke to a union representative. Although

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this may have been true when DeGrenier spoke to Emmert and Guevremont at 7 a.m., it was no
longer true when he spoke to McCann at noon. DeGrenier told McCann that he was discharging
the six employees, including McCann, after DeGrenier learned that the employees had
abandoned their original position and that they would no longer work until DeGrenier spoke to a
union representative. DeGrenier’s threat to discharge the employees was followed by a second,
coercive threat that they would never work for the Respondent again.

An employer whose conduct reasonably tends to interfere with, threaten, or coerce
employees in the exercise of their Section 7 rights violates Section 8(a)(1). Alliance Steel
Products, 340 NLRB No. 65 (2003). DeGrenier’s threat to fire the employees because of their
union activity, as well as his threat that those employees would never again work for the
Respondent because of that union activity, is conduct that coerces, threatens, and interferes
with employees in the exercise of their Section 7 rights. Accordingly, the Respondent has
violated Section 8(a)(1).

(b) Threat to shut down its business

DeGrenier told Olinger on October 2 that he would never go union, he hates unions, and
he would rather shut his doors than go union. An employer who threatens to shut down its
business rather than deal with the union violates Section 8(a)(1). Indeed, such threats are
“hallmark” violations and are highly coercive. Miller Electric Pump & Plumbing, 334 NLRB 824
(2001). The Respondent violated Section 8(a)(1) by threatening to close its business rather than
deal with the union.

3. Blaming a specific employee for other employees’ support for the union

The complaint charges, in paragraph 7(b)(iv), that the Respondent violated Section
8(a)(1) by blaming a specific employee for other employees’ support for the Union. This
allegation apparently refers to DeGrenier’s belief and accusation that Guevremont had started
the union activity whereas Olinger had actually made the initial contact with the Union. However,
in its posthearing Brief, the General Counsel seems to shift its theory of the alleged violation,
and argues that the words used by DeGrenier in blaming Guevremont (“Richie, I can’t f—ing
believe you did this to me,”) equate union activity with disloyalty. The General Counsel then
makes the easier argument (easier than the argument presented by the charge alleged in
paragraph 7(b)(iv) of the complaint), that employer statements equating union activity with
disloyalty are unlawful. HarperCollins San Francisco v. NLRB, 79 F.3d 1324 (2d Cir. 1996); Sea
Breeze Health Care Center, 331 NLRB 1131 (2000).

The General Counsel is correct that, in general, statements equating union activity with
disloyalty are unlawful under Section 8(a)(1). Moreover, the statement made by DeGrenier to
Guevremont, and especially considering the circumstances in which the statement was made,
appears to violate Section 8(a)(1). (DeGrenier also made other statements to his employees
equating union activity with disloyalty, such as his statement to Olinger that he had been
“ambushed” by the employees, and several times asking how Guevremont could have done this
to him.) However, the Respondent was not charged with making a statement that equated union
activity with disloyalty. The Respondent was charged with blaming a specific employee for other
employees’ support for the union.

The Respondent has defended DeGrenier’s statement on the basis of the charge in the
complaint. For example, the Respondent argues in its posthearing brief (R. Br. 15) that
“DeGrenier’s mere belief that Guevremont was responsible for the union organizing is not a
violation of Section 8(a)(1).” This argument, like the General Counsel’s argument, appears to be

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correct. However, the Respondent’s argument addresses the charge set forth in the complaint,
whereas the General Counsel’s argument does not. The Respondent has not asserted any
prejudice because of the variance, but this is likely due to the fact that the General Counsel did
not propound his alternative theory until the filing of his posthearing brief.

“Failure to clearly define the issues and advise an employer charged with a violation of
the law of the specific complaint he must meet and provide a full hearing upon the issue
presented is, of course, to deny procedural due process of law.” J.C. Penny & Co. v. NLRB, 384
F.2d 479, 483 (10th Cir. 1967). Nevertheless, a variance between the charges alleged in the
complaint and the charges alleged or found after hearing will not defeat a Board determination
when the issue was fully litigated. Rea Trucking Co. v. NLRB, 439 F.2d 1065 (9th Cir. 1971).
Indeed, “a material issue which has been fairly tried by the parties should be decided by the
Board regardless of whether it has been specifically pleaded.” American Boiler Manufacturers
Assn. v. NLRB, 366 F.2d 815, 821 (8th Cir. 1966).

In the present case, the Respondent did defend against all statements made by
DeGrenier to his employees after they told him of their desire to be represented by the Union.
However, since the Respondent was not advised of the reason why the statement was unlawful,
viz., that the statement equated union activity with disloyalty, the Respondent was not given the
opportunity to explain the relevant circumstances surrounding that statement, much less
address such matters in its posthearing brief. As noted above, all of the circumstances in which
an employer’s statement is made are relevant in determining whether the statement is unlawful.
An employer should be given the opportunity to explain not only whether the statement was
made, but the full context in which it was made, for it is often this context that determines
whether a statement was coercive, and therefore, unlawful.

A violation of Section 8(a)(1) does not depend on the employer’s motivation or on the
subjective reaction of the employees or on whether the coercion succeeded or failed. American
Freightways Co., 124 NLRB 146, 147 (1959). Accordingly, the context that the Respondent
should have been given the opportunity to explain does not include DeGrenier’s motivation for
making the statement or the employees’ response to the statement. Nevertheless, there may be
other relevant facts to a proper consideration of DeGrenier’s statement, under the theory that it
equated union activity with disloyalty, which the Respondent was not given the opportunity to
explain. The failure of the complaint to allege why the statement was unlawful deprived the
Respondent of the opportunity to address or present such relevant facts.

For the foregoing reasons, I conclude that the issue of whether the Respondent made an
unlawful statement equating union activity with disloyalty has not been fully litigated.
Accordingly, I will recommend that the allegations in paragraph 7(b)(iv) of the complaint be
dismissed.

4. Discharges

(a) Wright Line analysis.

Under the test set forth in Wright Line, the General Counsel has the burden of proving
by a preponderance of the evidence that antiunion animus was a substantial or motivating factor
in the employer’s discharge of the employees. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). To meet this burden, the General Counsel must
establish four elements. First, the existence of activity protected by the Act. Second, that the
Respondent was aware of such activity. Third, that the alleged discriminatee suffered an

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adverse employment action. Fourth, a motivational link, or nexus, between the employee’s
protected activity and the adverse employment action. American Gardens Management Co.,
338 NLRB No. 76 (2002).

If the General Counsel satisfies his initial burden under Wright Line, the burden then
shifts to the employer, in the nature of an affirmative defense, to demonstrate that the same
action would have taken place even in the absence of the protected conduct. In meeting this
burden, the employer cannot simply state a legitimate reason for the action taken, but rather
must persuade by a preponderance of the evidence that it would have taken the same action in
the absence of the protected activity. T & J Trucking Co., 316 NLRB 771 (1995). Nevertheless,
the employer’s defense does not fail simply because not all of the evidence supports it, or even
because some evidence tends to negate it. Merrilat Industries, 307 NLRB 1301, 1303 (1992).
The ultimate burden of proving discrimination always remains with the General Counsel. Wright
Line, supra.

With respect to the first two elements, union activity is not disputed and is shown by the
employees convening at the union hall on September 29 and October 1, as well as their
signatures on the union authorization cards. Moreover, the Respondent knew of the employees’
union activity because Emmert told DeGrenier at 7 a.m. on October 2 that the employees
wanted to be represented by a union.

The Respondent disputes the third element by arguing that it did not discharge the
employees, and that it sent the employees home on October 2 because they refused to work
unless DeGrenier first talked to a union representative. The facts do not support these
contentions. When DeGrenier sent the employees home during his telephone conversation with
McCann, DeGrenier had already learned that the employees had given up their demand that he
speak to a union representative before they returned to work. Indeed, DeGrenier learned that
the employees had continued to work, had completed their work at the Winchester site, and
were ready and willing to continue working. Accordingly, when DeGrenier sent the employees
home, he did not do so in response to their statement that they would not work until he talked to
a union representative.

When DeGrenier sent the employees home on October 2, he said, “You’ll never work for
D.C. Scaffold again.” Under the commonly accepted meaning of these words, and especially
considering the context in which they were uttered, DeGrenier discharged the six employees.
Moreover, after he had discharged the employees, DeGrenier met with Lewis in order to retrieve
the company’s trucks from Olinger, Guevremont, and McCann. DeGrenier told Lewis that he
had discharged the six employees. DeGrenier also told Lewis about his decision to reinstate the
discharged workers. On October 3, DeGrenier telephoned Emmert, Guevremont, and Olinger to
offer them reinstatement. On October 4, DeGrenier sent letters to Guevremont, McCann,
Moore, and O’Day to offer them reinstatement. Of course, reinstatement would not have been
necessary if the workers had not been previously discharged.

Despite DeGrenier’s present position that he did not discharge the employees, his sworn
testimony in response to McCann’s application for state unemployment compensation benefits
contradicts this argument. On January 29, 2004, DeGrenier testified before the Hearing Officer
of the Massachusetts Division and Training as follows (GC Exh. 26):

Hearing Officer: Did you discharge Mr. McCann from his job?
DeGrenier: Yes, I did.
Hearing Officer: And that was on October 2nd?
DeGrenier: Yes.

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Hearing Officer: Over the telephone?
DeGrenier: Yes.

Thus, DeGrenier has acknowledged, under oath, that he discharged McCann during the
telephone call on October 2. Moreover, DeGrenier made no distinction between McCann and
any other employee when he said, “I f—ing told you guys to go home. You guys might as well
go collect [unemployment benefits] because you’ll never work for D.C. Scaffold again.”
DeGrenier was not a credible witness, and his present position that he did not discharge the
employees further detracts from his credibility. See also Canova Moving & Storage Co., 227
NLRB 1834, 1842 (1977) (“Respondents [sic] insistent mischaracterization of Phillips’ discharge
as a quit disclosed a perceived need to disguise the reality of the situation to avoid guilt.”).

The Respondent argues that DeGrenier’s testimony in the Massachusetts
unemployment compensation proceeding should not be admitted in the present proceeding. In
support of this contention, the Respondent cites the provision of the Massachusetts statute in
which information secured in an unemployment compensation proceeding is deemed to be
confidential. Mass. Gen. L. ch. 151A, § 46. However, this statute permits disclosure “as
otherwise required or authorized by law.” Thus, testimony given by a party in a hearing before
the Massachusetts Division and Training is admissible in a proceeding before the Board when
such testimony is otherwise admissible pursuant to the Federal Rules of Evidence. Filene’s
Basement Store, 299 NLRB 183 (1990). DeGrenier testified in the present proceeding, and he
testified about similar matters in the state hearing on McCann’s application for unemployment
benefits. Accordingly, DeGrenier’s testimony in the Massachusetts proceeding is admissible in
the present proceeding as a prior inconsistent statement and as an admission. Fed. R. Evid.
613 and 801(d)(2).

The Respondent also cites the NLRB Division of Judges Bench Book, § 8-440, as
authority for its contention that the Board follows state laws and will exclude evidence deemed
confidential by various states. This argument is unpersuasive. First, the Bench Book is not
authoritative. Indeed, the Bench Book specifically provides that, “[n]or should it be cited as
binding precedent.” (Bench Book, p. 1.) Second, the holding in the single case cited in § 8-440
of the Bench Book, Canova v. NLRB, 708 F.2d 1498 (9th Cir. 1983), regarding use in Board
proceedings of confidential state unemployment records, does not support the Respondent’s
contention, and would be of questionable authority if it did. The Canova court upheld the
Board’s discretionary authority to revoke a party’s subpoena for confidential state employment
records. The court noted that the subpoenaed material was of “small probative value and that
Canova was not significantly prejudiced by the revocation [of the subpoena].” Id. at 1502.
However, the court recognized that “the Board must comply as far as is practicable with the
rules of evidence applicable in federal courts.” Id. at 1502. Presently, Federal Rule of Evidence
501 provides, inter alia, that in federal question cases, the privilege of a person or government
“shall be governed by the principles of the common law as they may be interpreted by the courts
of the United States in the light of reason and experience.” Rule 501 has not been interpreted to
adopt and apply state, unemployment compensation, confidentiality privileges in federal
question proceedings.

The Respondent cites no authority, other than referring to the Bench Book and the
Canova case cited therein, upholding the confidentiality or privilege of state unemployment
compensation records in the face of relevant inquiries in Board proceedings. Indeed, the
authority is to the contrary. “’[W]e start with the primary assumption that there is a general duty
to give what testimony one is capable of giving, and that any exemptions which may exist are
distinctly exceptional.’” Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (quoting 8 J. Wigmore,
Evidence § 2192, p. 64 (3d ed. 1940). With few exceptions, federal courts have generally

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declined to grant requests for new privileges. In University of Pennsylvania v. EEOC, 493 U.S.
182 (1990), the Supreme Court noted that a privilege must be strictly construed, and should not
be applied unless it “’promotes sufficiently important interests to outweigh the need for probative
evidence.’” citing Trammel v. U. S., 445 U.S. 40, 51 (1980). The confidentiality provision of the
Massachusetts unemployment compensation law does not meet this standard in a proceeding
under the National Labor Relations Act such as the present case. See also EEOC v. Illinois
Dept. of Employment Security, 995 F.2d 106, 108 (7th Cir. 1993) (where the court discounted
the state’s interest in confidentiality, and noted that persons who testify in state unemployment
proceedings and “who know that third parties will not examine the evidence have less to fear
from telling lies—for the truth is less likely to emerge.”). The Seventh Circuit also noted that, “An
unemployment-insurance privilege is no more compelling than an academic-deliberation
privilege [the subject of University of Pennsylvania v. EEOC, supra] or a reporters’-source
privilege (the subject of Branzburg [v. Hayes, 408 U.S. 665 (1972)]); indeed, it is less so.”

Moreover, in Yuker Construction Co., 335 NLRB 1072 (2001), in a ruling left undisturbed
by the Board, the Administrative Law Judge held that materials subpoenaed by the Board from
the Michigan Unemployment Agency, which were protected from disclosure by Michigan’s
statute, were not privileged and were admissible.9 The judge concluded that “the better rule is
that, where state privilege law conflicts with the enforcement of a federal statute and the
privilege is not otherwise consonant with federal evidentiary law, state privilege law is not
controlling.” Id. at 1082. Consistent with Yuker Construction Co., and in accord with the
authorities cited above, I conclude that the tape and accompanying transcript of DeGrenier’s
testimony before the Massachusetts Division and Training (GC Exh. 26) are admissible.

For all of the foregoing reasons, including DeGrenier’s statements when he discharged
the employees, DeGrenier’s admissions to Lewis, and his testimony before the Hearing Officer
for the Massachusetts Division and Training, the Respondent discharged its six employees,
Emmert, Olinger, Guevremont, McCann, Moore, and O’Day, on October 2.

Despite the Respondent’s position that evidence relating to the Massachusetts
unemployment compensation proceeding should be excluded, the Respondent’s counsel sent a
letter dated April 14, 2004 to the present Administrative Law Judge, in which counsel advised of
his understanding that the Massachusetts Board of Review had upheld the denial of
unemployment benefits to McCann.10 No date is given for this supposed action by the state
agency. First, counsel’s “understanding,” which is apparently something less than knowledge, is
incompetent and insufficient (for example, this information was not presented in an affidavit by a
person with knowledge, rather than counsel) to establish the fact he seeks to interject in the
record in this case. Second, the record in this case was closed at the termination of the hearing,
except for the presentation by the parties of an agreed transcript of the relevant portion of
9 See also Trinidad Logistics Co., 2002 WL 1466281 (NLRB Div. of Judges 2002), in which
Chief Administrative Law Judge Robert Giannasi denied the state of California’s motion to
revoke a subpoena to produce criminal history records of the alleged discriminatee in the
pending unfair labor practice proceeding. Chief Judge Giannasi noted that the state privilege is
secondary to the Board subpoena, and that Canova, to the extent it was applicable, was of
questionable authority.
10 The letter was ostensibly sent to correct a statement in counsel’s posthearing brief that a
phrase in the Massachusetts statute upon which the Board relied in its decision in Filene’s
Basement Store, supra, had been deleted. In fact, this phrase had not been deleted.
Accordingly, counsel’s letter was appropriate. What was not appropriate, as discussed infra,
was the reference to alleged events outside the record in this case.

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DeGrenier’s testimony. And, in submitting his letter, counsel did not request that the record be
reopened in order to receive the information. The General Counsel and the Union have opposed
the submission by Respondent’s counsel insofar as it attempts to include in the record this
additional information. For the foregoing reasons, I approve the positions taken by the General
Counsel and the Union, and I have not considered any of the matters set forth in the second
paragraph of counsel’s April 14 letter.

As described above, the Union responded to the Respondent’s April 14 letter, and
opposed the attempt by counsel for the Respondent to interject additional information into the
record of this case. However, taking advantage of the opportunity for one-upmanship, the Union
presented additional information in its letter, which information concerned McCann’s application
for unemployment compensation benefits. Like the information submitted by the Respondent,
this information was outside the record in this case, and the Union has not requested that the
record be reopened. Like the information contained in the Respondent’s letter, I have not
considered any of the matters set forth in the second paragraph of the Union’s letter, dated April
21.

The Respondent also disputes the fourth element of the General Counsel’s initial
burden, viz., whether there is a motivational link, or nexus, between the employees’ union
activity and the adverse employment action. Antiunion animus may be found from direct as well
as indirect or circumstantial evidence. All of the circumstances in the case should be considered
in making this determination. Among the circumstantial factors that the Board has found to
support an inference of animus are suspicious timing and abruptness of the termination. E.g.,
Medic One, Inc., 331 NLRB 464, 475 (2000).

DeGrenier’s statements to Olinger in the afternoon of October 2, while DeGrenier was
retrieving his truck at Olinger’s residence, constitute direct evidence of his antiunion animus. (I
have discounted DeGrenier’s statements to Emmert, Guevremont, and Olinger in the morning of
October 2 because these were made when DeGrenier believed that the employees would not
work until he talked to the union representative.) DeGrenier told Olinger, “I’m not going union. If
you think I’m going union you’re crazy.” When Olinger said that the employees simply wanted
him to talk to the union representative, DeGrenier responded, “F— that. I’m not going union. I’m
not talking to anyone.” The coarseness of DeGrenier’s discourse when referring to union
matters does not determine his antiunion animus, which is apparent without regard to the
saltiness of his language, but it does indicate the resolve with which DeGrenier holds his
antiunion opinions. In short, DeGrenier’s statements constitute direct evidence of antiunion
animus.

Moreover, DeGrenier’s antiunion animus that he displayed on October 2 is consistent
with the antiunion animus he has exhibited in the past. He has often stated that he cannot stand
unions. On many union jobs (every union job according to Olinger), DeGrenier talks about how
he does not like unions. Upon learning that his brother’s company had become unionized in
2003, DeGrenier stated that he would never go union. These statements, although not
independently charged herein, are admissible to shed light on DeGrenier’s motive. American
Packaging Corp., 311 NLRB 482 fn. 1 (1993).

The direct evidence of the Respondent’s motivation is corroborated by the timing and
abruptness of DeGrenier’s discharge of the six workers. When DeGrenier learned from
McCann, at about noon on October 2, that the employees were still at the Winchester jobsite, he
asked what the employees were still doing there. DeGrenier made no attempt to discuss the
matter with McCann nor did he respond to McCann’s question of what should be done with the
extra equipment at the Winchester jobsite. Rather, DeGrenier told them to go home and they

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would never work for him again. This abruptness is consistent with DeGrenier’s demeanor as a
forceful and opinionated person, as well as his resolute antiunion sentiment.

The Respondent has not presented evidence, and does not maintain, that the same
action would have taken place even in the absence of the protected conduct. Rather, the
Respondent’s argument is grounded on its factual contention that it did not discharge the six
workers. This argument has been addressed and rejected in the factual findings set forth herein.
Alternatively, the Respondent argues that it discharged the workers because of their refusal to
work until DeGrenier spoke to a union representative. This factual contention has also been
addressed and rejected. In considering all of the evidence in this record, the Respondent has
failed to demonstrate that it would have taken the same action of discharging its employees in
the absence of their protected activity. Accordingly, the Respondent violated Section 8(a)(3) and
(1) of the Act when it discharged its six employees, Emmert, Guevremont, Olinger, McCann,
Moore, and O’Day.

(b) Reinstatement

The Respondent further contends that it offered reinstatement to all six discharged
employees. These reinstatement offers were made by telephone (on October 3 to Emmert,
Olinger, and Guevremont) and by letter (on October 4 to Guevremont, McCann, Moore, and
O’Day). Whether the Respondent made valid offers of reinstatement to the workers, and if so,
whether such reinstatement offers ended any further obligation by the Respondent arising from
its unlawful discharge of the workers must now be addressed, for these matters relate to what
remedy, if any, is appropriate. Cf. Tel Data Corp., 315 NLRB 364 (1994), enfd. in part 90 F.3d
1195 (6th Cir. 1996) (where the question of reinstatement turned on evidence, properly admitted
in the unfair labor practice proceeding, that the discriminatee had engaged in misconduct for
which he would have been discharged). The Respondent’s reinstatement offers to the workers
were made under varying circumstances. Accordingly, the different offers will be considered
separately.

1. John Emmert

A reinstatement offer must be specific, unequivocal, and unconditional in order to satisfy
a Respondent’s remedial obligation. Holo-Krome Co., 302 NLRB 452, 454 (1991). “For a
reinstatement offer to be valid, it must have sufficient specificity to apprise the discriminatee that
the employer is offering unconditional and full reinstatement to the employee’s former or a
substantially equivalent position.” Cassis Management Corp., 336 NLRB 961, 969 (2001). The
Respondent’s offer of employment to Emmert did not satisfy these minimal conditions of a
reinstatement offer. DeGrenier did not offer to reinstate Emmert to his former position, but rather
offered a single day’s work, a day that neither the Respondent nor Emmert normally worked.

Moreover, an inquiry into whether the employee is interested in working is not a valid
reinstatement offer. E.g., L’Ermitage Hotel, 293 NLRB 924 (1989); Flatiron Materials Co., 250
NLRB 554 (1980). In Flatiron Materials Co., the Respondent’s president told the discriminatee,
by telephone, that a position was available, and inquired whether or not he wanted to return to
work. The discriminatee replied that he did not.11 The Board noted that, “where the subject of
Continued
11 Similar to the present case, the president of Flatiron Materials Co. followed up this
conversation with a letter that was more specific than the verbal offer. The Board stated that,
“the context in which the offer was made is as clear as the offer is vague,” and concluded that
the offer was not tendered in good faith. The Respondent’s actions in the present case are

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_________________________
returning to work is put as a question, as was done in the instant proceeding, and not as an
offer, such is a mere inquiry concerning a discriminatee’s interest in returning to work and does
not constitute an unconditional offer of reinstatement.” Likewise, DeGrenier’s inquiry of Emmert
as to whether he wanted to work on Saturday is not a valid offer of reinstatement.

If a Respondent’s offer of reinstatement is invalid, it is not necessary to consider the
discriminatee’s reply to the invalid offer. Consolidated Freightways, 290 NLRB 771 (1988).
Emmert’s reply that he wanted to speak, or he wanted DeGrenier to speak, to a union
representative does not change the invalidity of the offer in the first instance. The employment
offer to Emmert was not a valid offer of reinstatement and did not toll the Respondent’s backpay
liability.

2. Jon Olinger

Like DeGrenier’s invalid offer to Emmert, DeGrenier’s offer of work on Saturday and/or
Monday was not sufficiently specific to apprise Olinger that the Respondent was offering
unconditional and full reinstatement to Olinger’s former or a substantially equivalent position.
Moreover, and again similar to DeGrenier’s invalid offer to Emmert, the “offer” to Olinger was
simply an inquiry; he asked Olinger if he wanted to work, but he did not tell Olinger that he was
being reinstated to his job. Accordingly, the offer was not a valid offer of reinstatement, and it is
not necessary to consider Olinger’s response to DeGrenier’s inquiry. DeGrenier did not validly
offer to reinstate Olinger. Accordingly, his action did not toll the Respondent’s backpay liability.

3. Richard Guevremont

DeGrenier’s attempt to offer Guevremont reinstatement on October 3 during their
telephone conversation suffers from the same defects as his offers to Emmert and Olinger. The
“offer” was made via an inquiry (DeGrenier asked Guevremont if he was interested in working
the next day), and the offer was not for reinstatement, but to do one job.

Moreover, a valid reinstatement offer must offer full reinstatement to the employee’s
former or a substantially equivalent position. The Respondent “must make a good faith . . . effort
calculated to remedy the wrong which it initially committed.” Reeves Rubber, 252 NLRB 134 fn.
2 (1980). In Guevremont’s position before he was unlawfully discharged, the Respondent
allowed him the use of a company truck, which Guevremont needed in order to travel to the
various work sites. However, on October 3, DeGrenier did not offer to reassign a company truck
to Guevremont. Indeed, after Guevremont requested the use of a truck, DeGrenier specifically
refused to give him a company truck by telling Guevremont a blatant falsehood that every one of
the Respondent’s trucks was in the shop being repaired. Thus, the reinstatement offer to
Guevremont on October 3 was not valid because it did not offer full reinstatement, and because
it was not made in a good faith effort to remedy the wrong the Respondent had committed.

4. Richard Guevremont, John McCann, Stanley Moore, and Thomas O’Day

It is the Respondent’s burden to establish that it made a valid offer of reinstatement to
the discriminatees. Adsco Mfg. Corp., 322 NLRB 217 (1996). The Respondent failed to satisfy
this burden with respect to its October 4 letters of reinstatement to Guevremont, McCann,
comparable to the Respondent’s action in Flatiron Materials, and call into question DeGrenier’s
good faith. However, in light of the legal insufficiency of the Respondent’s offer of reinstatement,
there is no need to address the question of good faith in DeGrenier’s “offer” to Emmert.

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Moore, and O’Day, especially when those letters are considered in the light of subsequent
events. The letters failed to give any description of the work-site or whom the workers were to
meet at the work site or what the job entailed. As a result of this lack of information and
specificity, the workers were unable to locate the jobsite on October 6, despite making a good
faith effort to comply with the reinstatement offer. The workers appeared at the appointed time.
However, because the Respondent failed to give any particulars concerning the job, they
appeared at the correct street, but the wrong location. It was the Respondent’s obligation to give
the workers sufficient information to enable them to accept the offer of reinstatement. The
Respondent failed to provide sufficient information, and whether this was done innocently or in
bad faith is irrelevant in determining the validity of the reinstatement offer. The Respondent has
failed to satisfy its burden of establishing that it made a valid offer of reinstatement.

Alternatively, if it is assumed that the October 4 letters did validly offer reinstatement, I
conclude that the employees accepted the offer of reinstatement. They appeared at the
appointed time and at the location, the only construction site on Blackstone Street, which
appeared proper. DeGrenier could have provided more information to the workers regarding the
type of job, the location of the job, and persons to contact should there be any confusion, but he
did not do so. The Respondent could also have returned the cell phones to the workers, which
would have enabled them to call DeGrenier, or DeGrenier to call them, to confirm the location of
the jobsite. The consequences of DeGrenier’s failure to provide sufficient information to the
workers should not be placed on the workers who attempted to comply with the directions in the
letter. Moreover, the frustration of the workers in the morning of October 6, after it appeared to
them that DeGrenier had sent them on a wild goose chase, was at least partially a result of
DeGrenier’s virulent remarks on October 2 regarding their desire to be represented by the
Union. Finally, the Union faxed a letter to the Respondent on October 10 stating that the six
workers wished to be reinstated. Under all the circumstances, including the abrupt discharge of
the employees, DeGrenier’s virulent antiunion statements, and the apparent confusion on
October 6, the Union’s response on behalf of the employees was made within a reasonable time
after October 4. See Esterline Electronics Corp., 290 NLRB 834 (1988). Thus, whether or not
the October 4 letters to the workers are considered valid reinstatement offers, the letters did not
toll the Respondent’s reinstatement and backpay liability.

B. Case 1–RC–21685

The Regional Director for Region 1 consolidated the foregoing unfair labor practice case
with the case arising from the challenge to certain ballots in the election held on October 30,
2003. The Union challenged the ballots cast by Leo DeGrenier, Sims, Young, Ruginski, and
Russell. The Board agent challenged the ballots of Emmert, Guevremont, Olinger, McCann,
Moore, and O’Day on the ground that their names did not appear on the list of eligible voters
furnished by D.C. Scaffold. The challenged ballots are sufficient in number to affect the results
of the election.

1. Discharged workers

Emmert, Guevremont, Olinger, McCann, Moore, and O’Day would have been on the
payroll and eligible to vote in the October 30 election but for their unlawful terminations on
October 2. Employees who have been unlawfully discharged are eligible to vote. Romal Iron
Works Corp., 285 NLRB 1178 (1987). Emmert, Guevremont, Olinger, McCann, Moore, and
O’Day were unlawfully discharged on October 2 in violation of Section 8(a)(3) and (1) of the Act.
Accordingly, they were eligible to vote and the challenges to their ballots are overruled.

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2. Alleged Replacement workers

“It is established Board policy that a temporary employee is ineligible to be included in
the bargaining unit.” Pen Mar Packaging Corp., 261 NLRB 874 (1982). An eligible employee
must be within the proposed bargaining unit on the eligibility date as well as the date of the
election. Plymouth Towing Co., 178 NLRB 651 (1969). The evidence in this case demonstrates
that Leo DeGrenier, Sims, Young, Ruginski, and Russell were not hired by D.C. Scaffold to
replace the terminated employees, but to temporarily pose as employees of D.C. Scaffold so
that they could vote in the election, reject the Union, and then return to their respective real jobs.
Leo DeGrenier acknowledged that his brother told him that he was only being hired as a
temporary employee. And Leo’s testimony was the only candid testimony on this point among
the remaining alleged replacement workers who testified at the hearing.

All of the alleged replacements were discharged by the end of November. Thus, they
worked for D.C. Scaffold for approximately 2 months, 1 month before the election and 1 month
after the election. D.C. Scaffold argues that the replacements were discharged due to lack of
work in the winter, but this contention is rejected. The winter of 2003 was the first time D.C.
Scaffold laid off workers in the winter. Olinger worked for D.C. Scaffold for approximately 7
years, and had never been laid off; the same for McCann, a 7-year employee; the same for
Moore, a 4–5 year employee; and the same for the other workers. Accordingly, the discharges
of Leo DeGrenier, Sims, Young, Ruginski, and Russell within 1 month after the election were
more than coincidental. These discharges support the conclusion that Leo DeGrenier, Sims,
Young, Ruginski, and Russell were hired as temporary workers.

Moreover, even without Leo’s acknowledgement that he had been hired as a temporary
employee, the circumstances of DeGrenier’s hiring of his friends and family as replacement
workers demonstrate just as clearly the disingenuousness of his actions and his intention to hire
these individuals as temporary employees. These friends and brother of DeGrenier, alternatively
or jointly, (1) were unskilled in scaffolding work, (2) had full-time jobs, which they continued to
maintain, while they allegedly accepted full time employment with D.C. Scaffold, (3) were
earning substantially more money prior to accepting employment with D.C. Scaffold, and (4)
were all discharged within 2 months of being hired. It is not necessary to belabor the point. The
testimony of DeGrenier’s friends was as credible as DeGrenier’s testimony on this issue, which
is to say, not at all. Leo DeGrenier, Sims, Young, Ruginski, and Russell were hired as
temporary workers, and they did not share a community of interests with the proposed
bargaining unit employees. Accordingly, they were not eligible to vote in the election, and the
challenges to their ballots are sustained.

Alternatively, if D.C. Scaffold’s factual contention were accepted, viz., that the
replacement workers were hired as permanent employees, the result would not change.
Replacements for employees who have been unlawfully discharged in violation of the Act are
ineligible to vote. Romal Iron Works Corp, supra. If Leo DeGrenier, Sims, Young, Ruginski, and
Russell were hired as permanent employees, then they were hired to replace the six workers
who were unlawfully discharged on October 2. Accordingly, Leo DeGrenier, Sims, Young,
Ruginski, and Russell were not eligible to vote in the election, and the challenges to their ballots
are sustained.

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Conclusions of Law

1. The 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. The Respondent violated Section 8(a)(1) of the Act by unlawfully interrogating its
employees, by unlawfully threatening to discharge its employees, and by unlawfully threatening
to shut down its business rather than deal with the Union.

4. The Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully discharging
John Emmert, Richard Guevremont, Jon Olinger, John McCann, Stanley Moore, and Thomas
O’Day.

5. The foregoing violations constitute unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.

Remedy

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

The Respondent having discriminatorily discharged John Emmert, Richard Guevremont,
Jon Olinger, John McCann, Stanley Moore, and Thomas O’Day, it must offer them
reinstatement and make them 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).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12

ORDER

The Respondent, D.C. Scaffold, Inc., East Bridgewater, Massachusetts, its officers,
agents, and representatives, shall

1. Cease and desist from

(a) Unlawfully interrogating its employees about their union activities or in any
other manner interrogating its employees in violation of the Act.

(b) Unlawfully threatening to discharge its employees because of protected,
union activities by the employees.
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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(c) Unlawfully threatening to shut down its business rather than deal with the
Union.

(d) Discharging or otherwise discriminating against any employee for supporting
the New England Regional Council of Carpenters, a/w United Brotherhood of Carpenters &
Joiners of America, AFL–CIO (the Union) or any other union.

(e) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.

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 John Emmert, Richard
Guevremont, Jon Olinger, John McCann, Stanley Moore, and Thomas O’Day full reinstatement
to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.

(b) Make John Emmert, Richard Guevremont, Jon Olinger, John McCann,
Stanley Moore, and Thomas O’Day whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the manner set forth in the remedy section of
the decision.

(c) Within 14 days from the date of this Order, remove from its files any reference
to the unlawful discharges, and within 3 days thereafter notify the employees in writing that this
has been done and that the discharges will not be used against them in any way.

(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.

(e) Within 14 days after service by the Region, post at its facility in East
Bridgewater, Massachusetts copies of the attached notice marked “Appendix.”13 Copies of the
notice, on forms provided by the Regional Director for Region 1, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since October 2, 2003.

13 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

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(f) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

IT IS FURTHER RECOMMENDED that the challenges to the ballots of John Emmert,
Richard Guevremont, Jon Olinger, John McCann, Stanley Moore, and Thomas O’Day be
overruled, and the challenges to the ballots of Leo DeGrenier, William Sims, Robert Young,
Paul Ruginski, and Roger Russell be sustained.

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

Dated, Washington, D.C. May 19, 2004

___________________________
Joseph Gontram
Administrative Law Judge

JD–48–04
Boston, MA

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

WE WILL NOT discharge or otherwise discriminate against any of you for supporting the New
England Regional Council of Carpenters, a/w United Brotherhood of Carpenters & Joiners of
America, AFL–CIO (the Union) or any other union.

WE WILL NOT coercively question you about your union support or activities.

WE WILL NOT threatening to discharge our employees because of protected, union activities by
the employees.

WE WILL NOT threaten to shut down our business rather than deal with the Union.

WE WILL NOT Discharge or otherwise discriminate against any employee for supporting the
Union or any other union.

WE WILL NOT in any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order, offer John Emmert, Richard
Guevremont, Jon Olinger, John McCann, Stanley Moore, and Thomas O’Day full reinstatement
to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.

WE WILL make John Emmert, Richard Guevremont, Jon Olinger, John McCann, Stanley
Moore, and Thomas O’Day whole for any loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges of John Emmert, Richard Guevremont, Jon Olinger, John
McCann, Stanley Moore, and Thomas O’Day, and WE WILL, within 3 days thereafter, notify

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each of them in writing that this has been done and that the discharges will not be used against
them in any way.

D. C. Scaffold, Inc.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
10 Causeway Street, Room 601, Boston, MA 02222-1072
(617) 565-6700, Hours: 8:30 a.m. to 5:00 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (617) 565-6701.