Engineered Comfort Systems

National Labor Relations Board - Board Decisions

Mar 20, 2006

346 N.L.R.B. 661 (N.L.R.B. 2006)

ENGINEERED COMFORT SYSTEMS
346 NLRB No. 62
661
Engineered Comfort Systems, Inc. and Local 636,
United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, AFL–CIO.
Case 7–CA–48348
March 20, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On August 5, 2005, Administrative Law Judge Marga-
ret G. Brakebusch issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, a reply
brief, and an answering brief to the General Counsel’s
cross-exceptions. The General Counsel filed cross-
exceptions, a supporting brief, a reply brief, and an an-
swering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.2
This case involves certain unfair labor practices alleg-
edly committed by the Respondent against one of its em-
ployees, Russell Gallette. The judge found that the Re-
spondent’s president, Ronald Rodorigo, violated Section
8(a)(1) by telling Gallette, “I can’t believe you’re going
union; you want to bring the whole fucking world down
with you.” The judge further found that the Respondent
violated Section 8(a)(3) by discharging Gallette because
of his union activity. The judge dismissed allegations
that the Respondent additionally violated Section 8(a)(3),
prior to discharging Gallette, by transferring Gallette
from service to installation work, changing his start time,
and withdrawing his vehicle and cell phone privileges.
For the reasons stated by the judge, we agree with the
judge’s dismissal of the predischarge 8(a)(3) allegations.
For the reasons explained below in section 1, we also
agree with the judge’s finding that Rodorigo’s above-
quoted statement to Gallette violated Section 8(a)(1).
However, we do not agree with the judge’s finding that
the Respondent, in discharging Gallette, violated Section

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We have modified the judge’s recommended Order and substituted
a new notice to conform to the violation found here.
8(a)(3). We accordingly reverse that finding for the rea-
sons set out in section 2 below.
1. The Respondent’s sole exception to the judge’s
8(a)(1) finding states: “Respondent excepts to the ALJ’s
credibility findings crediting the testimony of Russell
Gallette regarding a statement by Ronald Rodorigo that
‘I can’t believe you’re going union; you want to bring the
whole fucking world down with you.’” (Emphasis
added.) Thus, the exception is limited to the judge’s fac-
tual determination that Respondent’s agent, Ronald Ro-
dorigo, made the statement at issue. We find no basis in
the record for overturning the judge’s credibility-based
factual determination. See footnote 1, supra. In its sup-
porting brief, however, the Respondent seeks to place the
legality of the statement at issue by arguing that even if
the statement was made, it did not violate Section
8(a)(1). The General Counsel contends that this legal
argument should be disregarded under Section 102.46 of
the Board’s Rules and Regulations. We agree with the
General Counsel.
Section 102.46(b)(1) requires, among other things, that
each exception “set forth specifically the questions of
procedure, fact, law, or policy to which exception is
taken[.]” If a supporting brief is filed, it should present
“argument . . . in support of the exceptions[.]” Id. In
addition, Section 102.46(c) provides that “[a]ny brief in
support of exceptions shall contain no matter not in-
cluded within the scope of the exceptions[.]” Here, the
Respondent’s single exception to the judge’s 8(a)(1)
finding is limited to a question of fact, while the Respon-
dent’s supporting brief attempts to raise a question of
law. Thus, the Respondent has failed to comply with the
Board’s Rules by arguing a legal issue in its brief that is
“not included within the scope of the exceptions.” Ac-
cordingly, that legal issue is not before us for review.
However, even if it were, we would adhere to the judge’s
conclusion that Rodorigo’s statement violated Section
8(a)(1). See Greyston Bakery, 327 NLRB 433, 446
(1999) (finding that employer violated Section 8(a)(1) by
telling prounion employee that employer had no reason
to help her because she was always involved in some-
thing negative and was trying to bring the bakery down);
Hialeah Hospital, 343 NLRB 391 (2004) (finding that
employer violated Section 8(a)(1) by telling employees
that he felt “betrayed” and “stabbed in the back” because
they had contacted the union).3

3 In finding Rodorigo’s statement unlawful, however, we do not rely,
as did the judge, on L.S.F. Transportation, Inc., 330 NLRB 1054, 1066
(2000), enfd. 282 F.3d 972 (7th Cir. 2002). Contrary to the judge’s
assertion, the Board in that decision did not find that the employer’s
description of union supporters as “chicken shits” violated Sec. 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD662
2. The judge found that the Respondent discharged
Gallette because of his union activity, in violation of Sec-
tion 8(a)(3). For the reasons set forth below, we disagree
with the judge and shall dismiss this complaint allega-
tion.
The circumstances surrounding Gallette’s discharge
are more fully elaborated in the judge’s decision, but the
essential facts are as follows. On Friday, February 11,
2005,4 Company President Rodorigo instructed Gallette,
a known union supporter, to report to the Respondent’s
Sears Roseville project5 on the following Monday (Feb-
ruary 14) at 7:30 a.m. Over the intervening weekend,
without any prior discussion or notice to the Respondent,
and without securing the Respondent’s approval, Gallette
decided that he would take the next week off as a vaca-
tion. He left Rodorigo a voice-mail message indicating
his intent to do so, but did not return the Respondent’s
subsequent telephone calls regarding the matter. Gallette
did not show up for work as instructed on Monday, Feb-
ruary 14. On Tuesday, February 15, after Gallette again
failed to call in or report to work, the Respondent dis-
charged him.
We have held that “[t]o prove a violation of Section
8(a)(3) and (1) under our decision in Wright Line,[6] the
General Counsel must first prove, by a preponderance of
the evidence, that the employee’s protected conduct was
a motivating factor in the employer’s adverse action.”
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961
(2004). If the General Counsel sustains this burden, the
burden then shifts to the employer to prove, by a prepon-
derance of the evidence, that the same action would have
been taken even in the absence of the employee’s pro-
tected activity. Id.
The judge found that the General Counsel established
his initial Wright Line case. The judge further found that
the Respondent failed to rebut that case because, in the
judge’s view, the Respondent’s discharge of Gallette
purportedly for his attendance infraction was inconsistent
with its lenient treatment of similar infractions by other
employees. Here, the judge took into account the Re-
spondent’s reaction to everything from tardiness to con-
secutive unexcused absences. Noting several instances
in which an employee’s tardiness or 1-day absence went
unpunished, the judge concluded that the Respondent had
failed to show that it would have discharged Gallette for
his attendance infractions even in the absence of his pro-
tected activity.

4 All dates hereafter are in 2005.
5 In her decision, the judge incorrectly refers to the Respondent’s
Sears “Roseville” project as the Sears “Rossville” project.
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
The Respondent excepts on the grounds that the Gen-
eral Counsel has not met his Wright Line burden of prov-
ing unlawful motivation and that, in any event, the Re-
spondent has met its burden in rebuttal. Assuming with-
out deciding that the General Counsel has met his initial
burden under Wright Line, we find, in agreement with
the Respondent, and contrary to the judge, that the Re-
spondent has successfully rebutted the General Counsel’s
case by showing that it would have discharged Gallette
even in the absence of his protected activity. Specifi-
cally, we agree with the Respondent that the judge im-
properly based her 8(a)(3) finding on the Respondent’s
treatment of employees who were not similarly situated
to Gallette.
Although the evidence supports the judge’s finding
that the Respondent did not always discipline employees
for lesser attendance infractions such as tardiness or sin-
gle-day absences, this evidence is of limited probative
value. Gallette did not simply arrive late to work or fail
to show up for work on a single day; he failed to call in
or show up for work on 2 consecutive days. Only two
other employees of the Respondent fell, like Gallette, in
this 2-day no-call/no-show category: John Koss and
Terry Rodorigo. Koss was terminated after failing to call
in or report to work on November 11 and 12, 2003.
Terry Rodorigo was terminated after failing to call in or
report to work on May 9 and 10, 2005.7 Based on the
Respondent’s prior discharge of Koss, we find that the
Respondent sustained its Wright Line burden of showing
that it similarly discharged Gallette for being a 2-day no-
call/no-show and that it would have done so regardless of
his protected activity. The Respondent’s subsequent
discharge of Terry Rodorigo for the same infraction was
consistent with the Respondent’s discharges of Gallette
and Koss. The General Counsel failed to present signifi-
cant countervailing evidence of disparate treatment of
similarly situated employees, i.e., employees who went 2
days as “no-call, no-shows” and were not discharged.
For these reasons, we reverse the judge’s finding that the
Respondent unlawfully discharged Gallette because of
his union activity.8
ORDER
The National Labor Relations Board orders that the
Respondent, Engineered Comfort Systems, Inc., Dear-
born Heights, Michigan, its officers, agents, successors,
and assigns, shall

7 Terry Rodorigo was terminated on May 10, a little over 2 weeks af-
ter the General Counsel issued the complaint in this case.
8 In agreeing with his colleagues that the Respondent met its Wright
Line burden, Member Walsh does not rely on the Respondent’s post-
complaint discharge of Rodorigo.
ENGINEERED COMFORT SYSTEMS 663
1. Cease and desist from
(a) Threatening employees with adverse employment
consequences because of their activities on behalf of Lo-
cal 636, United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL–CIO, or any other union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Dearborn Heights, Michigan facility, copies of the
attached notice marked “Appendix.”9 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 11,
2005.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten our employees with adverse em-
ployment consequences because of their activities on
behalf of Local 636, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, AFL–CIO, or any
other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
ENGINEERED COMFORT SYSTEMS, INC.
Darlene Haas Awada, Esq., for the General Counsel.
David B. Gunsberg, Esq., for the Respondent.
Joseph G. Andrews, for the Union.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Detroit, Michigan, on May 25 and 26,
2005. The original charge in Case 7–CA–48348 was filed by
Local 636, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL–CIO (the Union) on February 16, 2005,1 and
amended on February 23, 2005. Based upon the allegations
contained in the amended charge, the Regional Director for
Region 7 of the National Labor Relations Board (the Board)
issued a complaint and notice of hearing on April 22, 2005.
The complaint alleges that Engineered Comfort Systems, Inc.
(Respondent), violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by threatening employee Russell Gal-
lette (Gallette) with disciplinary action or adverse employment
consequences if he engaged in activity on behalf of the Union.
The complaint further alleges that Respondent violated Section
8(a)(3) and (1) of the Act by engaging in certain conduct to-
ward Russell Gallette. Specifically, the complaint alleges that
on or about February 11, 2005, Respondent transferred Gallette
from service work to installation work, eliminated Gallette’s
use of a Respondent-provided cellular phone and vehicle, and
changed Gallette’s starting time from 8:30 to 7:30 a.m. The
complaint also alleges that Respondent unlawfully terminated
Gallette’s employment on February 15, 2005. Respondent filed
a timely answer to the complaint denying the alleged unfair
labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed

1 All dates are 2005, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD664
by counsel for the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness in Dearborn Heights, Michigan, is engaged in the installa-
tion and service of heating, air-conditioning, and refrigeration
systems. Annually, Respondent derives gross revenues in ex-
cess of $500,000 and purchases products valued in excess of
$50,000 from points located outside the State of Michigan.
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
Prior to approximately 2000, Ronald Allen Rodorigo (Ro-
dorigo), and John Jones were partners in a business known as
Quality Temperature Controls Inc. Union Business Agent
Gregory Sievert testified that Rodorigo and John Jones were the
first signatory contractors to sign a prehire agreement with him
as a union business agent. When the partnership dissolved,
Rodorigo became the sole owner of Engineered Comfort Sys-
tems, Inc. For the past 5 years, Respondent has not been a
signatory contractor with the Union. Rodorigo testified, with-
out contradiction, that he has been involved in negotiations for
the past 8 months with the Operating Engineers Union Local
No. 547. Rodorigo also periodically employs Kenny Devanzo,
who is a member of the Iron Workers Union. Rodorigo pays
Devanzo the same fringe benefits as other employees and does
not pay the Iron Workers’ fringe benefits.
Michelle Ragland has been employed by Respondent for 4
years and has worked as Respondent’s office manager since
early 2002. Ragland also handles all of the human resources
functions for Respondent and has the authority to discipline and
direct employees in their work. Terri Lynn Rodorigo is the
former sister-in-law of Ronald Rodorigo and has been em-
ployed by Respondent for approximately 2 years. While she
served as dispatcher in 2004 and part of 2005, she is currently
classified as office assistant. William Vaillancourt was hired
by Respondent as a project manager at the end of January 2005.
Respondent stipulated that prior to February 14, 2005, Vaillan-
court was a supervisor within the meaning of Section 2(11) of
the Act. Vaillancourt testified that he left his supervisory posi-
tion on February 14, because Rodorigo told him that he was
needed in the field. Vaillancourt received a salary prior to Feb-
ruary 14, and he continues to be paid by salary.
Other than Vaillancourt, Devanzo, and the office employees,
all employees have company-provided vehicles. All field em-
ployees, with the exception of Jeffrey Macko and Devanzo,
have company-provided cellular phones. Devanzo and Macko
use their own personal cellular phones.
Russell Gallette was employed by Respondent as a service
and controls technician from 1999 until February 15, 2005. In
September 2004, Gallette moved to a new residence that was
located approximately 40 miles from Respondent’s Dearborn
Heights facility. Gallette testified that while the usual working
hours were 8 a.m. to 4:30 p.m. for most employees, he had been
allowed to work from 8:30 a.m. to 5 p.m. after he moved his
residence. The change in working hours allowed him to take
his son to school in the mornings.
B. Events Occurring During the Week of February 7, 2005
There is no dispute that Rodorigo held a meeting with em-
ployees concerning attendance and tardiness on February 7.
Employees were required to sign a statement confirming their
attendance at the meeting and confirming their understanding
of the purpose of the meeting. The statement further stated that
the meeting “was held as a direct result of excessive unexcused
absenteeism and tardiness within the company.” Rodorigo
testified that employees’ tardiness and attendance problems had
resulted in not only customer complaints, but also in loss of
time and money. Gallette acknowledged that prior to the atten-
dance meeting, there had been absenteeism and lateness. He
also admitted that prior to the meeting, there were occasions
when he was late and missed time on the job.
In early February 2005, Office Manager Ragland notified
employees that their employee health insurance had changed
from PPO coverage to HMO coverage. On February 8, Gallette
received a telephone call from his wife concerning her diffi-
culty in getting a prescription filled under the new insurance
coverage. In response to his wife’s call, he telephoned Ragland
and explained that his wife could not get her prescription filled
and could not find a physician under the new insurance cover-
age. Ragland suggested that Gallette’s wife telephone her and
Ragland also assured him that she would look into the matter.
Gallette also left a voice-mail message for Rodorigo to call
him.
While both Gallette and Rodorigo confirm that Gallette left a
voice-mail message informing Rodorigo of his wife’s reported
problems using the new insurance coverage, their accounts of
their later conversation and the voice-mail message are widely
divergent. Gallette testified that when he spoke with Rodorigo,
he told him that the new insurance was “junk” and that his wife
had been forced to change physicians. Gallette recalled that
Rodorigo told him: “The cunt needs to get off her lazy ass and
find a doctor.” On cross-examination, Gallette admitted that
when he gave his affidavit to the Board agent during the Re-
gion’s investigation of the charge, he had not included the alle-
gation that Rodorigo made such a statement about his wife. He
testified that he had simply remembered it on his way to the
hearing. Gallette also testified that in prior discussions with
Rodorigo about the insurance, Rodorigo mentioned that he
didn’t want employees to be charged a $200 monthly co-
payment; however, he had heard that the union plan required
such a copayment. Gallette testified that during this telephone
conversation, he told Rodorigo that he had checked with the
Union and that the union plan did not require this kind of co-
payment. Gallette maintained that Rodorigo responded by
asking why he didn’t “go get a union job?”
In contrast to Gallette’s testimony, Rodorigo recalled that in
his voice-mail message, Gallette asked: “What the fuck kind of
junk-fucking insurance do you have?” Rodorigo also testified
that Gallette used a racial slur and described the insurance as
ENGINEERED COMFORT SYSTEMS 665
“junk-fucking ghetto insurance.” Rodorigo recalled that he was
conducting a walk-through inspection on a jobsite in Knoxville,
Tennessee, when he listened to Gallette’s voice-mail message.
He described Gallette’s message as graphic and desperate as he
explained that his wife could not get her prescription filled and
his concerns that she might die. Rodorigo testified that in re-
sponse to Gallette’s voice-mail message, he contacted Ragland
and asked her to get in touch with their insurance representa-
tive. He instructed Ragland to make sure that Gallette received
information on how to use the new insurance. Rodorigo also
recalled that he later telephoned Gallette when he returned to
Detroit. He acknowledged that there was some discussion
about whether the union insurance coverage required a co-
payment. Rodorigo recalled that in a prior conversation he had
told Gallette about his brother-in-law paying $200 a month on a
deductible for union insurance. Rodorigo testified that during
his conversation with Gallette on February 10, Gallette told him
that there was not a $200 copayment with the Union. Rodorigo
understood Gallette’s statement as follow up their earlier con-
versation. During his testimony, Rodorigo did not address the
alleged statement about Gallette’s getting a union job.
After his telephone conversation with Rodorigo, Gallette
telephoned Union Business Agent Gregory Sievert and Union
Organizer Joe Andrews. He was unable to reach them and left
messages for each of them. Gallette testified that after he re-
turned home on February 8, he telephoned fellow employee
Khalid Maziad Kanaan. Gallette testified that during his con-
versation, he talked with Kanaan about the change in insurance
and also told him that he was getting the Union involved in
organizing Respondent’s facility. Kanaan recalled that he
spoke with Gallette about the new insurance prior to February
11. He also recalled that at some point in time during the
month of February, Gallette spoke with him about the Union.
He could not, however, recall that Gallette approached him
about organizing Respondent’s facility prior to February 11.
1. February 9 and 10
Employees begin their workday at either Respondent’s facil-
ity or on their respective jobsites. If employees need to pick up
supplies for their day’s work, their workday may also begin
when they arrive at a supply house. There is no dispute that on
February 9, Gallette was 30 minutes late in arriving at Young’s
Supply. Ragland testified that Gallette telephoned her at ap-
proximately 9 a.m. When she asked why he was late, he told
her that he had been delayed by a snow storm. Gallette testified
that he had not telephoned Ragland earlier because he had ex-
perienced problems with his cellular phone. Ragland testified
that after speaking with Gallette, she decided to discipline him
for his absence. She prepared a disciplinary warning for tardi-
ness for both Gallette and also for employee Jason Witek on
February 9.
Gallette recalled that later in the day, he spoke with Union
Organizer Andrews and inquired about the Union’s organizing
Respondent’s employees. They discussed strategies of organiz-
ing and the number of employees who would be involved.
They tentatively agreed to a meeting on Friday, February 11.
Later in the day, Gallette also spoke with Union Business
Agent Sievert and confirmed the scheduled meeting for Febru-
ary 11.
Gallette testified that he also telephoned employee Jeff
Macko on February 10, and talked with him about the new
insurance. Gallette testified that he told Macko that he had
already spoken with Kanaan and that he had contacted the Un-
ion about organizing the facility. Gallette also recalled that he
told Macko about the meeting with the Union that was set for
February 11.2 Gallette testified that Macko responded: “Don’t
leave me out on this Rus.” While Macko testified under sub-
poena by counsel for the General Counsel, he maintained that
he did not recall when Gallette spoke with him concerning
union organizing. He did, however, acknowledge that he had
signed a questionnaire confirming that he had spoken with Gal-
lette about organizing prior to February 11. The questionnaire,
received into evidence as General Counsel’s Exhibit 62, pur-
ports to contain the signatures of eight individuals. The head-
ing is phrased: “To the best of your knowledge, did Russ Gal-
lette ever talk to you about organizing Engineered Comfort
Systems with any union before February 11, 2005? Seven of
the individuals indicated “No” and only Macko indicated
“Yes.” While Macko acknowledged that he signed the docu-
ment, he could not recall when he did so and who provided the
document to him for his completion and signature. The record
contains no other evidence of the creator of the document or the
timeframe in which it was completed. Macko was not asked
and did not otherwise confirm that Gallette told him about a
scheduled meeting with the Union on February 11.
Ragland informed Gallette by telephone on February 10, that
he was to report to the office at the beginning of his workday
on February 11. While Ragland told him that he needed to
come in to sign some “papers,” she did not tell him that he was
going to receive discipline for his tardiness on February 9.
Ragland testified that when Gallette telephoned her at approxi-
mately 6 p.m. on Thursday, he again inquired what papers he
was to sign when he reported to the office on February 11. She
recalled that she told him that it was “no big deal” but related to
his being late for work on Wednesday morning.3 When Gal-
lette spoke with Rodorigo by telephone during the day on Feb-
ruary 10, Rodorigo only confirmed that he needed to sign pa-
pers and he did not disclose that Gallette was to be disciplined.
2. February 11
Gallette’s recall of the events on February 11 differs from
the recall of Ragland and William Vaillancourt. It is undis-
puted that Gallette arrived at the office at approximately 8:30
a.m. Gallette recalled that when he arrived in the parking lot,
he met truckdriver Bill Cox. Cox told him that he had been
instructed to empty Gallette’s van of all company tools and
materials. Gallette maintained that when he went into the of-
fice, only Ragland, Vaillancourt, and dispatcher Terri Lynn
Rodorigo were present in the office. Ron Rodorigo was not

2 While Gallette testified that he also talked with employees Ken
Devanzo and Terry Rodorigo about his interest in the union organizing,
neither employee testified to confirm or rebut his testimony.
3 Ragland also recalled that Gallette inquired as to whether his com-
ing in had anything to do with “that fat fuck” who sits between her and
Rodorigo.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD666
present at the facility. Gallette asked Ragland why Cox was
emptying his van. Gallette recalled that Ragland told him that
he would not need the van anymore because he was now a
“construction worker.” It is undisputed that Ragland gave Gal-
lette two documents to sign. One document was a form ac-
knowledging that he attended the February 7 meeting on atten-
dance and the second document was his warning. Gallette testi-
fied that he told Ragland that he was not signing the warning
and that he was “on his way home.” Ragland recalled that Gal-
lette informed her that he was going home to Monroe and that
was where she could later pick up the van.
William Vaillancourt recalled that he had been sitting at his
desk when he heard Ragland conducting a disciplinary inter-
view with Gallette. He overheard Gallette cursing and also his
telling Ragland that Rodorigo would have to pick up his van.
When Gallette left the office, Vaillancourt followed him out of
the building. Vaillancourt told Gallette that if he were quitting,
he could not take the van. Vaillancourt recalled that Gallette
got into the van and began to drive erratically in the parking lot.
Vaillancourt also told Gallette that if he took the van, he would
have to contact the police and report the van stolen. Gallette
acknowledged that after talking with Vaillancourt, he returned
to the office. Vaillancourt recalled that before returning to the
office, Gallette told him that he was a “kiss-ass” to Rodorigo.
When Gallette returned to the office, he told Ragland that he
would go to work and asked her where he was to report to
work. She told him that he was to report to the Sears Roseville
project. She explained that before leaving, however, he had to
sign the form acknowledging the meeting on February 7. Gal-
lette signed the acknowledgement form but did not sign the
warning. He also testified that at the time that he left the office,
no tools had been removed from his van. Vaillancourt testified
that while Ragland directed him to report to work at the Sears
Roseville project, she did not at any time tell him that he was a
“construction worker.” Vaillancourt, Rodorigo, and Ragland
all testified that Respondent did not employ anyone in the clas-
sification of construction worker.
3. Gallette’s meeting with the Union
After leaving the office, Gallette telephoned Andrews and
Sievert and asked where they wanted to meet him. Agreeing to
meet at a restaurant known as Kirby’s, Gallette arrived at the
restaurant at approximately 9:30 a.m. Andrews was waiting for
him and Sievert arrived shortly thereafter. Sievert gave Gal-
lette union materials and also union authorization cards. Gal-
lette signed an authorization card at that time. When Gallette
left the restaurant to go to the worksite, Andrews and Sievert
followed him.
Vaillancourt testified that after Gallette’s visit to the office,
he attempted to reach Rodorigo by telephone. He left a tele-
phone message on Rodorigo’s cellular phone and recounted the
incident with Gallette in the parking lot. After Gallette left the
office, Vaillancourt also left the office for the Sears Roseville
worksite. He estimated that it took him approximately 40 min-
utes to drive to the worksite. When Vaillancourt arrived at the
site, Gallette was not there. While Vaillancourt remained at the
site for another 20 to 30 minutes, Gallette had not reported to
the worksite. Rodorigo spoke with Vaillancourt and discovered
that Gallette had not reported to work at the Sears Roseville
site. At the time of the conversation, Rodorigo was in his vehi-
cle and driving approximately 5 miles north of the Sears Rose-
ville worksite. When Rodorigo was unable to reach Gallette by
cellular phone, he left a message telling Gallette that he was
“MIA” and that if he did not call immediately, Rodorigo would
report the van stolen. Within a few minutes, Gallette returned
the call and reported that he was just driving into the Sears
Roseville parking lot. Rodorigo told him that he was not to
enter the property and that he should return to the office. Gal-
lette acknowledged that Rodorigo called him and directed him
to return to the office. Before returning to the office, Gallette
spoke with Andrews and Sievert, reporting that Rodorigo or-
dered him to return to the office. Gallette also maintained that
before leaving for the office, he stopped to talk with employees
Macko and Devanzo. He asserted that he told them that he was
“getting the company organized” and that while he asked
Macko to sign a union card, Macko declined. Although Macko
testified, he did not confirm that Gallette solicited him to sign a
union card on February 11.4 Andrews testified that he and
Sievert talked with Devanzo and Macko. Although Andrews
recalled that Gallette was present on the jobsite, he did not
testify that Gallette or anyone else solicited either employee to
sign a union card during the February 11 conversation.
Rodorigo explained that as he drove back to the office to
meet with Gallette, he decided that he was going to take away
Gallette’s cellular phone and his company van until Gallette
demonstrated a better “work environment.” When Gallette
arrived at the office, Ragland, dispatcher Terri Lynn Rodorigo,
and Vaillancourt were present in the office as well as Rodorigo.
At the beginning of the meeting, Rodorigo asked Ragland and
Terri Lynn Rodorigo to leave the office.
Rodorigo, Gallette, and Vaillancourt all describe the initial
portion of the meeting in much the same way. Rodorigo began
his meeting with Gallette by asking where Gallette had been
since leaving the office. Gallette responded that he stopped for
breakfast. Gallette acknowledged that when Rodorigo asked
about his disappearance for 2 hours, he did not tell Rodorigo
with whom he had been meeting. Vaillancourt recalled that
Rodorigo pointed out that Gallette had been on the clock and
asked how he (Rodorigo) could charge customers for Gallette’s
sitting in a restaurant eating breakfast. When Gallette stated
that the restaurant had been on his way to the jobsite, Rodorigo
disputed his claim. Rodorigo recalled that he talked with Gal-
lette about various concerns including complaints by one of the
customers and about the racial slur that he had made earlier in
the week. Vaillancourt recalled that Rodorigo told Gallette that
there had been complaints from customers and that the cus-

4 Macko testified that after Gallette’s discharge, Rodorigo asked him
to prepare a statement concerning his work with Gallette. The state-
ment dated March 25, 2005, includes the following: “I, Jeff Macko,
employed by Engineered Comfort Systems had the experience of work-
ing with Russ Gallette on a couple of occasions helping with control
wiring. As it got to the point of Russ leaving E.C.S. there was a discus-
sion of possibly joining the union 636 pipe fitters and I told him I was
not interested. Then a phone call was made to me that went to my
voice mail again regarding the union when I never returned his phone
call that was the last time I heard from Russ.”
ENGINEERED COMFORT SYSTEMS 667
tomer on his previous worksite did not want him to return.
Vaillancourt recalled that Rodorigo questioned Gallette about
his use of racial slurs with respect to employee Kanaan’s family
and about his calling Vaillancourt a “fat ass.” Gallette recalled
that Rodorigo told him that he did not like his attitude and ac-
cused Gallette of not showing up for work, degrading women,
and making racial slurs. Gallette recalled that Rodorigo told
him that the customer who had complained had requested a
meeting with Gallette. Gallette also testified that after Ro-
dorigo accused him of degrading women, making racial slurs,
and not showing up to the job on time, he accused Rodorigo of
changing to cheaper insurance in order to pay Vaillancourt a
higher salary.
There is no dispute that during the course of the meeting,
Rodorigo informed Gallette that he was taking away Gallette’s
use of the company cellular phone and vehicle. The testimony
varies, however, as to the point in time when Rodorigo asked
for both the cellular phone and the vehicle. Rodorigo testified
that early in the conversation he told Gallette: “Give me your
cellular phone.” Rodorigo recalled that he then told Gallette
that he was to turn in his truck and provide his own transporta-
tion. Rodorigo also testified that he explained to Gallette that
he (Rodorigo) was going to clean and provide maintenance on
the truck. Rodorigo told Gallette that once he could demon-
strate that he could show up for work consistently, the van
would be returned. Gallette questioned how he was going to be
able to get to and from work without the van. Vaillancourt
recalled that Rodorigo told Gallette that he could drive his per-
sonal vehicle to the worksite. He added that if Gallette did not
have transportation, he could come to the office and ride to the
worksite with another technician.
Rodorigo recalled that after he told Gallette that he was to
turn over his cellular phone and the company van, Gallette
made the statement that it sounded as though Rodorigo was
firing him. Rodorigo recalled that he told Gallette, “No, I’m
just calling you out.” Rodorigo testified that while Gallette did
not say anything in response, he reached into his pockets and
pulled out some cards and threw them on the desk. Both Vail-
lancourt and Rodorigo acknowledged that Gallette produced the
cards and explained his intentions to organize the employees.
Rodorigo recalled that Gallette also announced that he was a
“salt.” When Rodorigo asked what that meant, Gallette told
him that he believed it meant that he was a union organizer.
Rodorigo told Gallette that he couldn’t talk with him about
labor issues and they needed to stick to the subject at hand.
Gallette’s testimony with respect to the production of the au-
thorization cards varies regarding the timing of the production.
Gallette testified that after Rodorigo took away his cellular
phone, he decided that it was “time to get everything out in the
open.” He recalled that it was at that point, that he pulled the
union authorization cards from his pocket. Gallette testified
that Rodorigo did not respond to his production of the cards or
his pronouncement that he was going to get everyone to sign
the cards. Gallette testified that Rodorigo only stated that Gal-
lette also needed to turn in the keys to his van. Gallette as-
serted that Rodorigo explained that “construction workers” did
not need the use of the van and they had to provide their own
transportation.
Gallette recalled that Rodorigo suggested that they go out-
side and clean out the truck. Rodorigo told Gallette that after
the tools were removed from the truck, Cox would drive him
home. Gallette acknowledged that two unopened beer cans
were found when the van was unloaded. He asserted that nei-
ther Vaillancourt nor Rodorigo said anything when they saw
the beer cans. Gallette also acknowledged that Rodorigo told
him that he was going to have the truck serviced and that per-
haps the truck would be returned to him in a few days. Gallette
testified that he told Rodorigo: “I’ve got all my tools on this
truck, you’re driving me home, it’s 1:00 in the afternoon, you
know. As far as I’m concerned, you know I’m fired.” He also
recalled that despite his assertion that he was fired, Rodorigo
told him that he was to report to work on the following Monday
at 7:30 a.m. at the Sears Roseville jobsite to work on the instal-
lation of a chiller.
4. Gallette’s vacation
Gallette testified that on either Saturday or Sunday, he called
Rodorigo and left the message that he had decided to take his
remaining week of vacation during the week of February 14.
After receiving Gallette’s message, Rodorigo telephoned
Ragland and questioned her about authorizing Gallette’s vaca-
tion. She assured Rodorigo that she had not authorized Gallette
to take the next week as vacation. During the weekend, she
telephoned Gallette’s home and left a message with his son5 for
Gallette to call her. There is no dispute that Gallette did not
report to work on February 14, and did not return Ragland’s
telephone call.
Ragland testified that company policy requires an employee
to give a 2-week notice before taking vacations in non-
emergency situations. Both Rodorigo and Ragland confirmed
that employees cannot schedule themselves for vacation with-
out authorization. While Gallette testified that he has previ-
ously been allowed to take vacation days without giving a 2-
week notice, there is no record evidence that employees have
scheduled themselves for vacation without prior authorization.
Gallette does not dispute that he began his vacation without
speaking with either Rodorigo or Ragland. When Gallette went
into the office on February 15 to pick up his paycheck, Ragland
told him that he had not been authorized to take leave. Admit-
tedly, when Gallette told Ragland that he would call her again
on Friday to find out where he was to report to work the follow-
ing week, she again told him that he was not on vacation. Gal-
lette testified that when he telephoned Ragland on Friday and
inquired where he was to work the next week, she again told
him that he was not on vacation and that he had been released
on the previous Tuesday.
Ragland testified that when Gallette did not show up to work
at 7:30 a.m. on February 15, she decided to terminate him.
When he came into the office toward the end of the workday,
she presented him with his termination notice. She recalled that
he reviewed the document and refused to sign it. She asked
him to turn over the keys to his previous work project. He told
her that he had done so when he turned in the keys to the van.
She reminded him that all petty cash had to be turned in before

5 Gallette testified that his children are 15 and 16 years old.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD668
his last check or the amount would be deducted from the last
check.
Andrews testified that Gallette telephoned him over the
weekend prior to February 14, and they discussed setting up
meetings with employees during the following week. On Feb-
ruary 14, Andrews prepared a letter to Rodorigo. The letter
informed Rodorigo that the Union was actively engaged in
organizing Respondent’s employees. The letter also stated that
Gallette wished to be identified as an employee who was cur-
rently engaged in the organization activity. The certified mail
record indicates that the letter was delivered to Respondent’s
office on February 15. A United States Postal Service tracking
record confirmed that the letter was delivered at 10:30 a.m. on
February 15.
Gallette testified without contradiction that he did not arrive
at Respondent’s facility on February 15 prior to approximately
3 or 4 p.m. While Terri Lynn Rodorigo testified, she did not
testify what happened to Andrews’ letter after she signed for it
on February 15. Ragland neither admitted nor denied that she
read the Andrews’ letter prior to preparing Gallette’s notice of
termination.
5. The alleged e-mail
On February 16, the Union filed a charge with the Board, al-
leging that Respondent discriminated against Gallette by chang-
ing his employment status from service technician to construc-
tion worker on February 11. On February 23, the charge was
amended to include the allegation that Gallette was unlawfully
terminated on February 15. During the course of the Board’s
investigation, Gallette forwarded to the Board a copy of an e-
mail that had allegedly been sent to him by Rodorigo. The e-
mail was sent from Rodorigo’s AOL (America Online) address
to Gallette’s AOL address. The message included: “Russ,
please quit sending us union info. We told you time after time
we would never do that. The guys are happy the way things
are. They happen to like there [sic] jobs and will not do any-
thing to jeopardize like you did. The crew @ ECS.”
During his direct testimony, Rodorigo was not asked if he
had sent the e-mail to Gallette as alleged. Office Assistant
Terri Lynn Rodorigo explained that a part of her job is to pre-
pare and type all e-mails for Rodorigo. She testified that he
dictates all of his e-mails to her and she prepares the e-mails.
She testified that she reviewed all the e-mails on Rodorigo’s
system dealing with mail to Gallette in 2005. She denied that
she had ever seen the e-mail purported to have been sent by
Rodorigo on March 7.
III. FACTUAL AND LEGAL CONCLUSIONS
A. Alleged 8(a)(1) Violations
Complaint paragraph 7 alleges that on or about February 11,
2005, Respondent, by its agent Ronald Rodorigo, at its Dear-
born Heights facility, threatened employee Russell Gallette
with disciplinary action or adverse employment consequences
if he engaged in activity on behalf of the Charging Union.
There is no dispute that during the disciplinary interview on
February 11, Gallette displayed union authorization cards and
announced that he was a union organizer. He testified that
during the time that the tools were unloaded from the van, Ro-
dorigo stated: “I can’t believe you’re going union; you want to
bring the whole fucking world down with you.” Gallette testi-
fied that he responded: “Well, you know, that’s what I’m doing
Ron, so you know; I guess we’ll just find out later on exactly
what happens.” While Rodorigo testified concerning the Feb-
ruary 11 meeting, he did not specifically deny the alleged
statement to Gallette. He testified that when Gallette brought
up the Union during the meeting, he responded by stating that
he could not talk with Gallette about union issues. Vaillancourt
testified that Rodorigo said that Gallette “had to do what he had
to do” and that he (Rodorigo) was not going to discuss union
issues.
Counsel for the General Counsel argues that the presence of
contemporaneous unfair labor practices is often a critical factor
in determining whether there is a threatening color to the em-
ployer’s remarks.6 Citing SKD Jonesville Division, 340 NLRB
101, 102 (2003), counsel for the General Counsel argues that
the Board has found similar nonspecific threats to violate Sec-
tion 8(a)(1) of the Act. In the case cited by counsel for the
General Counsel, a supervisor accused an employee of planning
to organize a union and the employee denied that she was plan-
ning to do so. After stating that he would fire all of the em-
ployees on workmen’s compensation if he could do so, he told
the employee that it was not in her best interest to get involved
with the union. Unlike the employee in SKD Jonesville Divi-
sion, Gallette asserts that he brought up his involvement in
union organizing. Additionally, unlike the supervisor in SKD
Jonesville Division, Rodorigo’s alleged threat does not accom-
pany any other threat of retaliation toward employees.
In his brief, counsel for Respondent addresses the alleged
8(a)(1) violation by asserting that Gallette was a totally incredi-
ble witness whose testimony in this respect should be com-
pletely disregarded. In part, I agree and I do not find Gallette’s
overall testimony to be credible. As counsel for Respondent
points out in his brief, Gallette testified that he considered him-
self to be terminated on February 11, and yet he scheduled
himself for a vacation for the week of February 14. As I have
noted above, Gallette alleged in his trial testimony that Ro-
dorigo referred to his wife in extremely derogatory terms dur-
ing the February 8 telephone conversation. Admittedly, how-
ever, he failed to include such testimony in his investigative
affidavit to the Board and contended that he had suddenly re-
membered it on the way to the trial. He also testified that when
he went into the office to pick up his check on February 15,
Ragland did not inform him that he was terminated. He asserts
that he did not find out that he was terminated until he called in
again later in the week to get his work assignment for the fol-
lowing week. I find this testimony difficult to believe. Based
upon Gallette’s account, when Ragland told him that he was not
authorized to be on vacation, he argued that he was and walked
out. His contention that he casually telephoned her 3 days later
to receive his next work assignment appears improbable.
One of the more troubling aspects of Gallette’s credibility is
the alleged e-mail of March 7, 2005. Gallette testified that
following his discharge on February 15, he received an e-mail
from Rodorigo’s e-mail address. As described above, the e-

6 Coach & Equipment Sales Corp., 228 NLRB 440, 441 (1977).
ENGINEERED COMFORT SYSTEMS 669
mail is purportedly from “The crew @ ECS” and urges Gallette
to stop sending union information. The e-mail also includes the
statement: “The guys are happy the way things are. They hap-
pen to like there [sic] jobs and will not do anything to jeopard-
ize like you did.” Office assistant Terri Lynn Rodorigo testi-
fied that she prepares and sends all of Rodorigo’s e-mails. She
explained that Rodorigo does not personally send any e-mails.
She credibly testified that she had reviewed all of the e-mails
received and sent to Gallette during 2005, and the alleged
March 7 e-mail message was not among them. She testified
that on more than one occasion, she had given Gallette the
password that accessed Rodorigo’s AOL e-mail account. She
had done so because Gallette had a laptop computer and needed
to access information while on the job. While Gallette was
present throughout the entire proceeding, he did not rebut Terri
Lynn Rodorigo’s testimony. In contrast to Gallette’s testi-
mony, I found Terri Lynn Rodorigo to be a very credible wit-
ness. It is not plausible that Rodorigo would send such a bla-
tantly incriminating e-mail after the filing of the underlying
charge in this matter. Such an action appears not only inconsis-
tent with good business judgment, but also devoid of a modi-
cum of common sense. While Gallette may have produced the
e-mail to enhance the argument of Respondent’s animus, the e-
mail actually raises additional credibility concerns with respect
to Gallette’s testimony.
The alleged threat, however, was unrebutted. Rodorigo’s al-
leged statement that Gallette was going to bring the whole
“fucking world” down with him is certainly a statement that
lends itself to a number of interpretations. Despite the range of
interpretation, however, such broad and unspecified statements
have been found violative of Section 8(a)(1). In RC Aluminum
Industries, 343 NLRB 939, 941 (2004), a supervisor’s asking
an employee if he “wanted to continue the war” was found
violative. Similarly, a supervisor’s description of union sup-
porters as “chicken shits” has been found as a veiled threat of
discharge and violative of Section 8(a)(1). See L.S.F. Trans-
portation, Inc., 330 NLRB 1054, 1066 (2000).
Although both Vaillancourt and Rodorigo testified, neither
witness directly addressed the alleged threat. Accordingly, on
the basis of the entire record testimony concerning this alleged
violation of Section 8(a)(1), I credit Gallette’s unrebutted testi-
mony and I find that Rodorigo’s statement was a veiled threat
that Gallette’s union activity would result in adverse employ-
ment consequences.
B. Alleged 8(a)(3) Violations
Counsel for the General Counsel submits that Respondent
unlawfully changed Gallette’s working conditions on February
11, and then subsequently terminated his employment on Feb-
ruary 15 because of his support and activities on behalf of the
Union. In determining whether an employer’s actions against
an employee violates Section 8(a)(3) of the Act, the Board uses
the analytical framework set out in Wright Line, 251 NLRB
1083, 1089 (1980), enfd. F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Wright Line is based upon the legal prin-
ciple that an employer’s unlawful motivation must be estab-
lished as a precondition to finding an 8(a)(3) violation. Under
the Board’s decision in Wright Line, the General Counsel must
first prove, by a preponderance of the evidence, that the em-
ployee’s protected conduct was a substantial and motivating
factor in the employer’s adverse action. Accordingly, the Gen-
eral Counsel must offer evidence that the employer was aware
of the employee’s protected activity, and that animus against
the protected activity motivated the employer’s alleged dis-
crimination. KFMB Stations, 343 NLRB 748, 751 (2004).
Farmer Bros. Co., 303 NLRB 638, 649 (1991), enfd. 988 F.2d
120 (9th Cir. 1993). Once the General Counsel has established
that an employee’s protected activity is a motivating factor in
an employer’s decision to take adverse action toward the em-
ployee, the burden shifts to the employer to demonstrate that it
would have taken the same action in the absence of the pro-
tected activity. Merrillat Industries, Inc., 307 NLRB 1301,
1303 (1992).
1. February 11, 2005 allegations
Paragraph 8 of the complaint alleges that on or about Febru-
ary 11, Respondent transferred Gallette from service to installa-
tion work, eliminated his use of a Respondent-provided vehicle
and cellular phone, and changed his starting time from 8:30 to
7:30 a.m.
a. The alleged transfer from service to installation work
Although the complaint alleges that Gallette was unlawfully
transferred from service to installation work on February 11,
there is no evidence of any permanent change in classification.
While Gallette testified that he was told that he no longer
needed the van because he was a “construction worker,” the
record does not reflect the relation, if any, between installation
work and the classification of “construction worker.” No other
witness other than Gallette identified “construction worker” as
an existing employee classification. Additionally, Gallette
admitted that service technicians perform some installation
work in their duties. He also acknowledged that service techni-
cians worked independently of each other and he was unaware
of all of the work performed by other service technicians. Ser-
vice technician Khalid Maziad Kanaan testified that his duties
involved troubleshooting and occasional installation work. He
explained that he installed large parts or condensing units. He
acknowledged that while he was not an “installer,” he could
work on an “installer crew.” Gallette also admitted that
Ragland had told him earlier that because of customer com-
plaints, he had been removed from the Samaritan jobsite. It is
undisputed that prior to his talking with Rodorigo on February
11, he had already been assigned to work at the Sears Roseville
worksite. Additionally, there is no evidence that there was any
other work available to which Gallette could be assigned.
b. The alleged change in Gallette’s start time
Rodorigo testified that he told Gallette to report to the Sears
Roseville job at 7:30 a.m. because Sears wanted Respondent to
have a consistent and dedicated crew who would not “pop in
and out” as they wanted. While I found Rodorigo’s explanation
for the necessity for the 7:30 a.m. starting time less persuasive
than his explanation with respect to other alleged changes, the
overall record does not support a finding of a discriminatory
change in starting time for Gallette. Counsel for the General
Counsel argues that Rodorigo’s explanation for the 7:30 a.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD670
starting time is not plausible because Ragland did not send
Gallette to the Roseville project until after his scheduled meting
with her on February 11 at 8:30 a.m. I do not find this differ-
ence in starting time for February 11 and 14 to be significant.
Inasmuch as Ragland’s normal starting time in the office was
8:30 a.m., it would have been impractical for Gallette to report
to the worksite at 7:30 a.m. on February 11, only to leave again
to drive the estimated 40 minutes back to the office to meet
Ragland at 8:30 a.m. Additionally, I find it significant that
Ragland had already assigned Gallette to the Roseville job prior
to Gallette’s proclamation of his intent to organize Respon-
dent’s facility. There is no evidence that the 7:30 a.m. starting
time was anything other than part of the requirements for the
Roseville job to which Gallette was assigned.
c. The loss in cellular phone and vehicle privileges
There is no dispute that prior to February 11, service and in-
stallation employees were given the use of company-provided
vehicles and cellular phones. Rodorigo asserts that prior to
meeting with Gallette on February 11, he decided to take away
Gallette’s cellular telephone and company vehicle. He con-
tended that he did so because of Gallette’s failure to show up
for work and his excessive use of his cellular phone. While
both Rodorigo and Ragland asserted that Gallette used his cel-
lular telephone excessively, no documentation was offered in
support of his alleged excessive usage as compared to any other
employees. With respect to Gallette’s failure to show up for
work, it is undisputed that he was tardy on February 9. Addi-
tionally, Gallette does not deny that he did not immediately
report to the Sears Roseville worksite on February 11 as as-
signed.
Counsel for the General Counsel submits that Rodorigo’s
elimination of Gallette’s use of the company-provided vehicle
and cellular telephone resulted from Gallette’s union activity.
The overall record, however, does not support this finding.
Gallette’s own testimony indicates that he did not produce the
union authorization cards or inform Rodorigo of his intention to
organize employees until after he was informed that he was to
relinquish his cellular telephone. If Gallette is to be credited,
both Cox and Ragland had already informed him earlier in the
day on February 11, that his tools were to be removed from his
van and that he was going to lose the benefit of the van. While
Gallette asserts that he spoke with employees Kanaan, Macko,
and Devanzo about organizing for the union prior to his meet-
ing with Rodorigo on February 11, there is minimal corrobora-
tion for his doing so. Kanaan testified that he could not recall
whether Gallette spoke with him about the Union prior to Feb-
ruary 11. While Macko admits that he signed a document con-
firming that he had spoken with Gallette about the Union prior
to February 11, he testified that he could not actually recall
having done so.
In assessing whether counsel for the General Counsel has
met the requisite burden under Wright Line, I find the element
of Respondent’s knowledge to be a major limitation. Although
the record is somewhat unclear as to the extent to which Gal-
lette may have spoken with employees during the week prior to
February 11, the more pivotal issue is whether Respondent had
any knowledge of his doing so. There is no direct evidence that
Rodorigo, Ragland, or even Vaillancourt had any knowledge
that Gallette telephoned or met with union representatives prior
to Respondent’s decision to withhold Gallette’s use of the com-
pany-provided vehicle and cellular telephone. In an apparent
attempt to establish knowledge, Gallette testified that while he
met with Andrews and Sievert at the restaurant on February 11,
he observed a black Pontiac Grand Am vehicle drive through
the parking lot. Rodorigo testified, without contradiction, that
he was driving a 2001 Expedition Suburban utility vehicle on
February 11. I also note that even if Rodorigo had driven
through the parking lot as Gallette implies, there is no basis to
conclude that he would have recognized the union representa-
tives’ vehicles or would have had any reason to know that Gal-
lette was meeting with union representatives inside the restau-
rant.
Macko acknowledged that he signed a statement confirming
that he spoke with Gallette about the Union prior to February
11; however, he testified that he had no specific recall of hav-
ing such conversation. Even assuming that Gallette talked with
Macko about the Union, there is no evidence that he told Ro-
dorigo or any other management official about the conversa-
tion.
Counsel for the General Counsel argues that Respondent’s
knowledge of Gallette’s union activities is demonstrated by
Gallette’s conversation with Rodorigo about whether union
insurance required a $200 copayment. The record evidence
does not, however, support a finding that such conversation
constituted notification to Respondent that Gallette was en-
gaged in union activity. Rodorigo acknowledged that during
the telephone conversation, Gallette mentioned that the union
insurance did not require the $200 copayment. Rodorigo as-
sumed that Gallette brought up the matter of the union insur-
ance because they had previously discussed the subject of
whether union insurance required the copayment. At the time
of the earlier conversation, Rodorigo suggested that it did be-
cause of what he had learned from his brother-in-law. Gal-
lette’s description of the conversation in part corroborates the
testimony of Rodorigo. In describing his conversation with
Rodorigo, Gallette testified: “And I told Mr. Rodorigo, I said
you told us that the union had to pay, you know, pay into their
premium and I said I found out that they didn’t because I called
them.” Gallette testified that he told Rodorigo that he had
checked with the Union’s benefits office to determine whether
there was any additional copayment on the union insurance.
Gallette did not allege that he told Rodorigo that he had spoken
with a union business agent or union organizer. Thus, the over-
all testimony does not reflect that Gallette communicated any-
thing more to Rodorigo other than his simply checking with the
union benefits office to clarify an issue they had discussed in a
prior conversation. Admittedly, at the time of the conversation,
Gallette had not engaged in any organizational activities and
had not even spoken with either Andrews or Sievert.
Accordingly, there is insufficient evidence to show that Ro-
dorigo had any knowledge of Gallette’s engaging in union ac-
tivity prior to the alleged changes imposed on February 11.
Gallette’s own testimony indicates that he made no mention of
his union activity prior to Rodorigo’s telling him that he had to
relinquish his cellular phone. While Gallette testified that he
ENGINEERED COMFORT SYSTEMS 671
produced the union cards before Rodorigo informed him that he
would lose the use of the van, I do not find Gallette credible in
this regard. Although Gallette asserts that he was told to turn
over the keys to the van only after he announced his intent to
assist the Union in organizing, he also testified that when he
had first arrived at the office on February 11, Cox told him that
his van was to be emptied and that Ragland had informed him
that he would not need the van as he was a “construction
worker.” Finding his testimony to be self-serving and contra-
dictory, I do not credit Gallette with respect to the alleged tim-
ing of his pronouncement of union activity. Additionally, as
discussed above, there is insufficient evidence to demonstrate
that Respondent had knowledge of Gallette’s union activity
prior to his initial assignment to the Sears Roseville job.
Counsel for the General Counsel argues that knowledge of
union activities to establish the unlawfulness of adverse actions
may also be established through circumstantial evidence such
as timing, general union animus, and disparate treatment of the
discriminate.7 There is certainly no question that Gallette con-
tacted Andrews and Sievert just prior to Gallette’s reassignment
to the Sears Roseville job and the loss of his cellular phone and
van privileges. General Counsel also presented Respondent’s
former employee Tim Pierz who testified concerning a discus-
sion with Rodorigo in October 2003. Pierz testified that while
he and Rodorigo were having a couple of beers at Rodorigo’s
house, Rodorigo asked him if he had ever been in a union.
Pierz also testified that in that same conversation and in later
conversations, Rodorigo talked with him about his having been
a union employer and his disinterest in returning to a union
shop. I do not find Pierz’ testimony significant in light of Ro-
dorigo’s unrebutted testimony that he had been in negotiations
with the Operating Engineers Union for the past 8 months.
Having considered the totality of the evidence, I do not find
sufficient evidence of Respondent’s knowledge prior to the
alleged changes of February 11. While it is true that the Gen-
eral Counsel may rely on circumstantial evidence from which
an inference of discriminatory motive can be drawn, the totality
of the circumstances must demonstrate more than a “mere sus-
picion” that Gallette’s union activity was a motivating factor in
Respondent’s February 11 actions.8 Cardinal Home Products,
338 NLRB 1004, 1012 (2003); Computaprint Corp., 261
NLRB 1106, 1107 (1982).

7 Montgomery Ward, 316 NLRB 1248, 1253 (1995).
8 In her brief, counsel for the General Counsel argues that when Ro-
dorigo called Gallette back to the office on February 11, he made “re-
peated references to Gallette’s ‘bad attitude.’” While the Board has
noted that in certain circumstances an employer’s reference to an em-
ployee’s “bad attitude” may be a veiled reference to the employee’s
protected activity, the overall evidence in this case does not support
such a finding. Admittedly, Rodorigo’s alleged reference to Gallette
about his attitude occurred after Gallette’s proclamation to Ragland:
“I’m going home, forget—you tell him to call me I’m on my way home
to Monroe right now, and when you get all of this straight and every-
thing, have him call me.” Even after Gallette agreed to return to work,
he did not do so. His explanation to Rodorigo for not doing so was his
having breakfast. It is reasonable that inasmuch as it was within this
context of admittedly defiant behavior, Rodorigo’s reference to Gal-
lette’s “bad attitude” appears to be directed at Gallette’s specific actions
and not a veiled reference to any suspected protected activity.
As the Board has found, it is axiomatic that an employer
could not have been unlawfully motivated if it was unaware of
protected activity. See Tomatek, Inc., 333 NLRB 1350, 1356
(2001). Accordingly, the General Counsel has failed to demon-
strate by direct or circumstantial evidence that Respondent had
knowledge of Gallette’s union activity prior to Respondent’s
conduct on February 11, and thus has failed to meet the requi-
site burden under Wright Line. Boardwalk Regency Corp., 344
NLRB 984 fn. 1 (2005); Stanford Linear Accelerator Center,
328 NLRB 464 fn. 1 (1999).
2. Whether Respondent unlawfully discharged Gallette
Counsel for the General Counsel argues that by transferring
Gallette to an installation job with a 7:30 a.m. start time, and by
taking away Gallette’s transportation, Respondent caused the
termination of Gallette. Counsel further argues that “an em-
ployer causes an unlawful constructive discharge when the
burdens imposed upon the employee cause, and are intended to
cause, a change in working conditions so difficult or unpleasant
as to force him to resign.” Counsel for the General Counsel
submits that while Gallette did not quit in the instant case, the
situation is analogous. The instant case, however, is not com-
parable and is notably distinguishable from circumstances
where the Board has found a constructive discharge.
Gallette does not assert that he was forced to resign. While
he attributes lack of transportation as a factor, he contends that
he decided to take the week of February 14, 2005, as a week of
vacation. Although he had already received discipline from
Ragland for his failure to report to work on time on February 9,
he did not contact Ragland to notify her of his intended absence
for the week of February 14. He admits that he simply left a
message on Rodorigo’s cellular phone. Without hearing back
from Rodorigo and without any further attempts to secure au-
thorization from either Rodorigo or Ragland, Gallette failed to
report to work on February 14 and 15. It is undisputed that
prior to Gallette’s visiting Respondent’s office at approximately
3 or 4 p.m. on February 15, Gallette had not received authoriza-
tion for his absences on February 14 and 15.
Gallette testified that when he arrived at the facility on Feb-
ruary 15, he told Ragland that he was on vacation. He admits
that while she told him that he was not authorized to be on va-
cation, he contended that he was and simply walked out of her
office. Counsel for the General Counsel submits that Gallette
failed to show up for work during the week of February 14
because of Respondent’s unlawful removal of the company-
provided van. Gallette, however, testified that he telephoned
Ragland on Friday, February 18, and inquired where he was to
report to work the following Monday. Gallette did not assert in
his testimony that anything had changed with respect to his
limitations in transportation. His silence in that regard and his
notification of intent to return to work on Monday, February
21, undercuts the argument that Gallette did not report to work
on February 14 because of Respondent’s unlawfully imposed
burdens.
As discussed above, I do not find that Gallette’s union activ-
ity was a substantial or motivating factor in Respondent’s ac-
tions toward Gallette on February 11. With respect to his dis-
charge, however, the overall record supports a finding that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD672
General Counsel has sustained the requisite burden under
Wright Line. Admittedly, Respondent was aware of Gallette’s
union activity as of the date of his discharge. He not only in-
formed Rodorigo of his intent to assist the Union in organizing
Respondent’s employees, he also produced the union authoriza-
tion cards that he planned to distribute. Additionally, Andrews’
letter of February 14 was delivered to Respondent on February
15 and identified Gallette as engaged in union activity. Thus,
Respondent’s knowledge of Gallette’s union activity is clearly
established prior to his discharge. Inasmuch as I have also
credited Gallette in regard to the February 11 alleged 8(a)(1)
threat, there is also a sufficient showing of animus that supports
the inference that protected conduct was a motivating factor in
Respondent’s decision to terminate Gallette. It is reasonable
that because of Gallette’s proclaimed union activity, Respon-
dent welcomed the opportunity to terminate Gallette.
Once unlawful motivation is shown, the burden of persua-
sion shifts to the Respondent to prove that the alleged discrimi-
natory conduct would have taken place even in the absence of
the protected activity. 251 NLRB at 1089. Under Wright Line,
an employer cannot carry its burden of persuasion by merely
showing that it had a legitimate reason for imposing discipline
against an employee, but must show by a preponderance of the
evidence that the action would have taken place even without
the protected conduct. Five Cap, Inc., 331 NLRB 1165 (2000);
Hicks Oil & Hicksgas, Inc., 293 NLRB 84, 85 (1989), enfd. 942
F.2d 1140 (7th Cir. 1991).
Upon my initial analysis, it appeared that Respondent had
met its burden under Wright Line, demonstrating that despite
any apparent motivation, it would have terminated Gallette
even in the absence of any known union activity. Even before
the articulation of the Wright Line analysis, the Board has rec-
ognized that if an employee provides an employer with suffi-
cient cause for discharge for which the employee would have
been terminated in any event, the discharge cannot be held as
unlawful merely because the offender was an active union sup-
porter. See Americas Restaurant & Hotel, 221 NLRB 1260,
1269 (1975); Kate Holt Co., 161 NLRB 1606, 1612 (1966).
Despite Gallette’s known union activity, Gallette did not re-
port to work as scheduled on February 14. While he asserted
that he was absent because he took a week of vacation, there is
no dispute that he did not obtain prior authorization for doing
so. Admittedly, when Ragland told him that he was not author-
ized for vacation on February 15, he argued with her and
walked out of the office. Even if his earlier absence for the
week had not triggered termination, his insubordinate behavior
on February 15 could arguably have resulted in discipline.
Counsel for the General Counsel argues that Rodorigo had
previously authorized Gallette to take a week’s vacation at his
discretion because Gallette was entitled to the week and work
was slow. While Gallette testified concerning two prior occa-
sions when he took vacation with less than 2 week’s notice, his
testimony reflects, however, that he did so after receiving au-
thorization from either Ragland or Rodorigo. There is no evi-
dence that Gallette or any other employee has been permitted to
take vacation without any prior authorization.
Thus, upon first blush, it appears that Gallette’s scheduling
himself for vacation without prior authorization would result in
discipline even in the absence of protected activity. The total
record evidence, however, does not demonstrate that Gallette
would have been terminated in the absence of his protected
activity. Ragland testified that after the attendance meeting on
February 7, she had disciplined employees for their attendance
infractions. Ragland also testified that while she had termi-
nated Gallette for his failure to report to work, she had also
terminated employees John Koss and Terry Rodorigo for their
failure to call in or to show up for work for 2 days. Ragland
clarified for the record that the “Terry Rodorigo” terminated by
Respondent was Ron Rodorigo’s brother who had worked as a
general laborer or helper. This individual is distinguished from
Terri Lynn Rodorigo who is currently employed as an office
assistant and who testified in this proceeding. Respondent
introduced into evidence a November 2003 time record docu-
menting that Koss failed to show for work on November 11 and
12, 2003. Counsel for the General Counsel submitted into evi-
dence a copy of the May 10, 2005 termination notice issued to
employee Terry Rodorigo for his failure to call in or to show up
for work on May 9 and 10, 2005. Respondent’s records also
indicate that Terry Rodorigo was also documented as failing to
call or to show for work on December 9, 2004, and on February
16, 2005. Respondent submitted into evidence a warning that
was issued to Terry Rodorigo on February 16 for his failure to
call in or to report to work. No evidence was submitted to
show that Respondent issued any discipline to Terry Rodorigo
for his “no-call/no-show” in December 2004. While Terry
Rodorigo called in on March 23, 2005 to say that he would be
in later, he never showed up. Ragland further admitted that
while Terry Rodorigo was documented as late on February 24,
March 15, 28, and 29, April 1, 4, 12, 19, 20, 21, 25, 26, 28, and
29, and May 4 and 5, he received no discipline. It was only
after complaint issued in this case on April 22, 2005, that Terry
Rodorigo was terminated for his documented “no-call/no-
shows.”
Evidence submitted by counsel for the General Counsel also
reflects that while service technician Richard Rhodes was late
on 12 occasions between February 11 and May 4, he received
no discipline. Respondent’s records also indicate that installer
Dean Rodorigo was late on four occasions between February 17
and May 10, and received no discipline. While service techni-
cian Joe Lambert was late March 7, 10, 11, and 14, there is no
record of any discipline imposed other than a warning issued on
March 14, for Lambert’s tardiness as well as his failure to fol-
low instructions and lack of cooperation/teamwork. While
employee Ken Devanzo was documented as late on February 9,
15, and 17, and March 1, 2, and 3, he received no discipline.
Respondent’s records also reflect that employee Keith Do-
chenetz was late three times in March and April and yet re-
ceived no discipline. Accordingly, while Ragland asserts that
after February 7, she disciplined employees if they were con-
secutively late without a valid excuse, Respondent’s records do
not support her contention. In his brief, counsel for Respondent
argues that there is no evidence that any other person who was
2-day no-call/no-show was not terminated. While Terry Ro-
dorigo was terminated in May 2005 for a 2-day no-call/no-
show, the termination followed a lengthy series of tardiness and
attendance infractions between February 7 and May 10. Al-
ENGINEERED COMFORT SYSTEMS 673
though Respondent asserted that Gallette had prior attendance
infractions, Respondent offered no evidence of discipline other
than the warning issued for his tardiness on February 9. Addi-
tionally, Respondent offered no evidence of Gallette’s atten-
dance infractions prior to February 9. Accordingly, Respon-
dent’s records demonstrate that attendance infractions by other
employees have been tolerated both before and after February
7. Respondent has not met its burden in showing that Gallette
would have been terminated in the absence of his protected
activity. Accordingly, I find that Respondent violated Section
8(a)(3) and (1) in its February 15, 2005 discharge of Russell
Gallette.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by threat-
ening an employee with adverse employment consequences if
he engaged in activity on behalf of the Union.
4. Respondent violated Section 8(a)(3) and (1) of the Act by
discharging employee Russell Gallette on February 15.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not violate the Act in any other manner as
alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent, having discriminatorily discharged employee
Russell Gallette, must offer him reinstatement and make him
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of discharge to the date of
proper offer of reinstatement, less any interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest, as computed in New Horizon for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]