George A. Tomasso Construction Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1995

316 N.L.R.B. 738 (N.L.R.B. 1995)

738
316 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 shall modify the judge’s recommended Order and notice to
require the Respondent to remove from its files any reference to its
unlawful refusal to recall employees Michael Mele and William
Langley and to notify them it has done so.
The George A. Tomasso Construction Corp. and
International Brotherhood of Teamsters, Local
559, AFL–CIO. Case 34–CA–6117
March 15, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On September 23, 1994, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, The
George A. Tomasso Construction Corp., New Britain,
Connecticut, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Remove from its files any reference to the un-
lawful refusals to recall Michael Mele and William
Langley, and notify them in writing that this has been
done, and that the evidence of this unlawful activity
will not be used as a basis for future actions against
them.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail to hire, reemploy, or otherwise
discriminate against any of you for supporting The
International Brotherhood of Teamsters, Local 559,
AFL–CIO, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer William Langley and Michael Mele
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed and
WE WILL make them whole for any loss of earnings
and other benefits resulting from the discrimination
against them, less any net interim earnings, plus inter-
est.
WE WILL remove from our files any reference to the
unlawful refusals to recall William Langley and Mi-
chael Mele and notify them in writing that this has
been done, and that the evidence of this unlawful ac-
tivity will not be used as a basis for future actions
against them.
GEORGE A. TOMASSO CONSTRUCTION
CORP.
Thomas W. Doer, Esq., for the General Counsel.1
Burton Rosenberg, Esq., of New Haven, Connecticut, for the
Charging Party.
James A. Kane, Esq. (Leibowitz, Kane & Bennett), of Jeri-
cho, New York, for the Respondent.
739GEORGE A. TOMASSO CONSTRUCTION CORP.
1 Counsel for the General Counsel will hereinafter be referred to
as General Counsel.
2 The General Counsel’s and Respondent’s exhibits will be cited
as G.C. Exh. and R. Exh., respectively, followed by the exhibit num-
ber; the transcript will be designated as Tr. followed by a page num-
ber.
3 Unless otherwise indicated, all events discussed herein took place
in 1992.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Upon a charge
filed on April 22, 1993, by Local 559, International Brother-
hood of Teamsters, AFL–CIO (Local 559 or the Union), a
complaint issued in this case on August 30, 1993, alleging
that the Respondent, The George A. Tomasso Construction
Corp. (Respondent or Company) violated Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act) by refusing
to rehire William Langley and Michael Mele because of their
protected, concerted activities on behalf of the Union. Re-
spondent filed a timely answer denying that it had committed
any unfair labor practices.
This case was tried in Hartford, Connecticut, on February
28 and March 1, 1994, at which time the parties had full op-
portunity to examine and cross-examine witnesses, introduce
documentary evidence, and argue orally.2 Subsequently, the
parties filed posttrial briefs. On the basis of the entire record,
including my observation of the witnesses’ demeanor, I reach
the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent, a Connecticut corpora-
tion with an office and place of business in New Britain,
Connecticut (the facility), has been engaged as a heavy high-
way construction contractor in the building and construction
industry. During the 12-month period ending July 1, 1993,
Respondent, in conducting its business operations, purchased
and received at various points within the State of Connecti-
cut, goods valued in excess of $50,000 directly from points
outside the State. Accordingly, the complaint alleges, Re-
spondent admits, and I find, that The George A. Tomasso
Construction Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
I also find that at all material times, the Union has been
a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PACTICES
Production—The Union Campaign
Respondent has been in the road construction business
since 1986. Like other employers in this industry, Respond-
ent experienced annual winter slowdowns, generally lasting
from December to March. With little work to be done during
this period, Respondent laid off its drivers, and rehired them
in March if their performance had proved satisfactory.
The General Counsel contends that Respondent failed to
recall two of its drivers, William Langley and Michael Mele
(Langley and Mele), in March 1993 because they took active
roles in a union organizing campaign. Respondent claims that
its equipment manager, Eugene Bartomioli (Bartomioli) who
was responsible for hiring and recalling drivers, followed
standing operating procedures in deciding against recalling
the two drivers based on reports received from field person-
nel that their work performance was unsatisfactory.
Michael Mele
Respondent first employed Mele as a truckdriver in March
1991. He worked without incident until he was laid off with
the other drivers in December of that year during the Compa-
ny’s seasonal shutdown. The layoff lasted only 3 weeks, and
even during that period, Respondent recalled Mele sporadi-
cally for brief assignments lasting a day or two.
Bartomioli rehired Mele in January 1992, on a full-time
basis, and assigned him to a 1952 water truck, an ancient be-
hemoth as trucks go, because he was one of the few drivers
skilled enough to handle a vehicle which had a complex 20-
gear transmission.3
Mele testified that in June, he contacted a business agent
for Teamster Local 559, a Union to which he previously had
belonged, to discuss rejoining. At the same time, he obtained
and distributed approximately 12 authorization cards to fel-
low drivers. Telling them that if they were interested in join-
ing the Union, they should complete the card and return it
to Local 559. On August 13, the Union filed a petition for
an election. Although an election was scheduled for Septem-
ber 23, it was blocked after the Union filed the instant unfair
labor practice charge. The Union withdrew the petition on
November 3, and to date, no election has been held.
Mele testified that several of Respondent’s senior officials
questioned him about his union involvement throughout the
summer. The first incident, which occurred in late June or
early July, soon after he had distributed the union authoriza-
tion cards, involved Carl Lorenzetti (Butch), a supervisory
master mechanic, who asked Mele ‘‘what was going on with
this Union business?’’ (Tr. 42.) When Mele feigned igno-
rance, Lorenzetti asked him to find out who was responsible
for the union campaign and whether anyone had signed
cards. (Tr. 42.) Agreeing to look into the matter, Mele re-
sponded to another inquiry from Lorenzetti later that same
day, by claiming he knew nothing.
A few days later, Lorenzetti again asked him what he
knew about the union drive, and again, Mele replied that he
knew nothing. At this, Lorenzetti said that six drivers told
him that Mele had given them union cards. Mele challenged
him to bring the six forward, at which point Lorenzetti
dropped the matter.
Mele stated that a few days after this episode, while he
was washing his truck, Lorenzetti drove by and shook his fist
at him. When Mele asked for an explanation, Lorenzetti re-
portedly said: ‘‘I thought you didn’t know anything about
those damn Union cards.’’ Mele again proclaimed a lack of
knowledge, which elicited a warning from Lorenzetti that ‘‘if
I find out you got anything to do with damn (sic) Union, I’m
going to desecrate you.’’ (Tr. 44.)
Mele testified that Lorenzetti made still another reference
to union cards in the latter part of the summer. Irritated by
Lorenzetti’s persistence, Mele told him that if he did not
‘‘get off his back,’’ he would send 10 cards to the Union.
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Bartomioli stated that he used the words ‘‘rehire’’ and ‘‘recall’’
interchangeably.
Lorenzetti urged him not to take such a step; that if he just
voted against the Union, he would take care of him.
Lorenzetti denied that he ever discussed the Union with
Mele and even claimed that he was unaware that Mele was
involved in the union campaign. However, he acknowledged
that another employee informed him that Mele had tried to
give him a union card during working hours. He then contra-
dicted himself by conceding that he questioned Mele about
this accusation, and that Mele had denied it.
Mele stated that Equipment Manager Bartomioli also ques-
tioned him, asking how he was going to vote in the union
election. When Mele assured him that he would vote against
the Union, a skeptical Bartomioli said he wished he could
believe him. Bartomioli denied that such a conversation took
place.
On December 14, Mele was laid off as part of Respond-
ent’s seasonal shutdown, but was assured by Respondent’s
dispatcher, Robert Quarello, that he would be rehired within
3 weeks. Repeating his experience of the previous year, Mele
was given some temporary assignments during the winter
layoff, the only driver to receive such employment.
However, several months went by and Mele was not re-
called for a permanent position. During this period, he tele-
phoned Quarello a number of times to see if work was avail-
able, and invariably was told to wait just a few more weeks.
Finally, in early April, Quarello advised Mele he would not
be rehired. When Mele asked for an explanation, Quarello re-
plied that ‘‘he must have pissed somebody off.’’ (Tr. 51.)
When Quarello testified, he initially denied having said
anything like the statement Mele attributed to him. However,
after reviewing his affidavit, he shifted from unqualified de-
nial to partial admission, conceding he may have said some-
thing of the sort, but using somewhat different language.
Quarello painted himself into another corner when he testi-
fied that he heard Lorenzetti complaining that Mele was
speeding, for he swore in his affidavit that he had heard no
complaints about Mele and had complimented him as a good
worker.
Equipment Manager Bartomioli testified that although the
Company did not have a written disciplinary policy, it was
his practice to retain unsatisfactory employees until the cus-
tomary winter layoff, and then, not recall them when work
picked up again.4 He claimed that he followed this practice
in deciding against rehiring Mele, Langley, and three other
drivers. Apart from these five employees, Respondent rein-
stated 34 of the 39 drivers on the company payroll at the
time of the December layoff.
Bartomioli explained that he decided not to recall Mele
after hearing reports from ‘‘field personnel’’ that the job was
too much for him; that he could not follow directions, and
was forgetful. Asked to identify the source of these negative
reports, Bartomioli named only Lorenzetti.
When Lorenzetti testified about his dissatisfactions with
Mele, he said nothing about the driver’s purported inability
to handle the job or carry out his assignments. Instead, his
only comment was that he had observed Mele driving too
quickly on a few occasions.
Lorenzetti’s testimony about Mele’s alleged speeding inci-
dents left much to be desired. For example, he stated that
when he first observed Mele speeding, there was no traffic.
However, after a few more questions were posed, he com-
pletely reversed himself and asserted that Mele was speeding
while in traffic. In a similar about-face, Lorenzetti first said
he reported only the first speeding incident to Bartomioli,
and could not recall whether it happened in 1991 or 1992.
Subsequently, Lorenzetti’s memory was miraculously revived
and he remembered that he did inform Bartomioli of Mele’s
propensity for speeding on three occasions. Equally incred-
ible was Lorenzetti’s assertion that Mele was the only driver
he ever observed speeding. Lorenzetti’ also maintained at
trial that he had no knowledge of Mele’s union proclivities;
yet conceded that another employee had reported that Mele
tried to hand him a union card. Lorenzetti admitted question-
ing Mele about this report, and then, implied that he accepted
at face value Mele’s denial of having engaged in such activ-
ity. Lorenzetti’s zeal to say whatever might serve his em-
ployer’s interests was obvious and completely discredits him
as a reliable witness.
William Langley
Langley began working for Respondent on March 23, and,
like Mele, was not recalled after the December layoff. Prior
to his employment with Tomasso, Langley knew Bartomioli
on a casual basis and had asked him for a job on previous
occasions. Bartomioli testified that he was reluctant to em-
ploy Langley because he was reported to have an ‘‘attitude
problem.’’ When he finally offered Langley a job as a driver,
he warned him to behave himself.
Langley testified that Bartomioli spoke to him about the
Union on several occasions. The first exchange occurred in
August when Bartomioli asked Langley if he had signed a
union card. Langley candidly acknowledged that he had
signed a card because he wanted retirement and pension ben-
efits. The conversation ended after Bartomioli told Langley
he should have spoken to him before signing the card. Lang-
ley indicated that his relationship with Bartomioli grew de-
cidedly chilly after this exchange.
Langley said a second encounter occurred in late Septem-
ber. Fearful that Bartomioli knew he recently had given an
affidavit to a NLRB agent, Langley asked him if he still had
a job. Giving him short shrift, Bartomioli told him to check
the matter out with the Union.
During the same time period, the union business agent sent
a letter to Respondent identifying Langley and another driver
as a member of the in-house organizing committee.
Bartomioli testified that until he received this letter, he did
not know that Langley supported the Union. This assertion
is somewhat suspect, in light of his comment on receiving
the Union’s letter, ‘‘That was definite then that I knew for
sure he was there.’’ (Tr. 146.)
In February 1993, Langley contacted Bartomioli about re-
turning to work, but was told that rehiring would not start
in earnest for a number of weeks. Langley called again in
April, and this time, Bartomioli told him he had some prob-
lems with him and he would not be rehired.
The next day, when Langley telephoned to discuss the
matter further, Bartomioli told him that some foremen had
problems with him. Langley protested that he should have
been told this sooner at which point, he said that Bartomioli
blurted out, ‘‘you porked me once . . . and you’re not going
to do it again.’’ Langley asked him if he was referring to
741GEORGE A. TOMASSO CONSTRUCTION CORP.
5 Traub confirmed that he had mentioned his problem with Lang-
ley to Quarello who advised him to speak to Bartomolio about it.
6 I have no difficulty in relying on Mele’s word that Bartomolio
and Lorenzetti made the statements which he attributed to them. The
supervisors’ denials were stated in general terms and were quite
half-hearted. Lorenzetti’s credibility was severly damaged when it
became apparent that he was willing to modify his answers if it
would better serve his employer’s purposes. More importantly, Mele
was a convincing witness; his testimony was consistent, straight-
forward, and in important respects, uncontradicted.
‘‘the Union thing’’ which led Bartomioli to say, ‘‘you figure
it out.’’ (Tr. 90.)
Bartomioli stated that he decided against recalling Langley
because various supervisors reported that they had negative
experiences with him. Thus, a few weeks after hiring Lang-
ley, Tim Traub, Respondent’s superintendent on a major
bridge construction project, phoned him to complain about
Langley’s attitude toward work, and requested his transfer to
another jobsite. However, Bartomioli allowed Langley to re-
main on the project after reminding him that he had been
hired on his promise that he would not pose problems for
anyone.
Traub, corroborating Bartomioli’s testimony, testified that
he had almost daily contact with Langley and observed him
reacting negatively whenever given an assignment. In using
the word negative, Traub explained that Langley invariably
objected to an assignment; complaining that it didn’t make
sense or that there was a better way to do the task. After a
period of time, Traub brought the matter to Bartomioli’s at-
tention and asked that Langley be reassigned to a different
jobsite. However, Bartomioli assured him that he would talk
to Langley. Traub stated that for a couple of weeks, Langley
appeared to have ‘‘quieted down.’’ However, it did not take
long for his negative attitude to reappear leading Traub to
lodge another complaint with Bartomioli sometime during
the summer.
Lorenzetti, another supervisor whom Bartomioli identified
as having registered a complaint about Langley, related that
the driver had telephoned him once to report that his truck
had broken down. He stated that on questioning Langley
about the cause of the breakdown, the driver responded in
a sarcastic and uncooperative manner.
Quarello, whom Bartomioli also cited as having com-
plained about Langley, denied having done so. However, he
said that Traub had told him of his problems with Langley.5
Quarello regarded Langley as a relatively good driver and
had not personally observed an attitude problem.
Bartomioli named several others who had voiced com-
plaints about Langley prior to the date he received the
Union’s letter, including Vince Seaford, general superintend-
ent on the project to which Langley was assigned and Re-
spondent’s safety director, Chuck Downey. Neither Seaford
nor Downey testified. Instead, Bartomioli, said that Downey,
reported to him that Langley repeatedly violated several reg-
ulations of the State’s Department of Transportation.
Bartomioli conceded that Downey complained about all the
drivers’ safety performance, but regarded Langley as the
most persistent offender.
Discussion and Concluding Findings
In order to establish a violation of Section 8(a)(3) of the
Act, the General Counsel must show in his case-in-chief that
antiunion animus motivated an employer to take adverse ac-
tion against an employee because he was engaged in union
activity. The General Counsel has adduced sufficient evi-
dence to meet this burden.
The record contains ample proof that Respondent’s agents
were hostile to the Union and were aware that both Mele and
Langley were union activists. Langley readily admitted that
he supported the Union and did not hesitate to have his name
appear in the Union’s letter to the Respondent listing him as
a member of the organizing committee. Mele, who played a
more active role than Langley in the union campaign, tried
to conceal his activity, but his efforts were unsuccessful. Be-
cause Mele feigned disinterest in the Union, does not mean
that Respondent believed him. Lorenzetti and Bartomioli’s
persistence in questioning him about the identity of union ad-
herents, threatening him if he engaged in union activity and
promising to reward him if he did not, reveal that they were
not duped by his efforts to throw them off the track.6 The
various statements which Respondent’s supervisors made to
Mele reflect both their hostility toward the Union and their
belief that he was a union adherent.
Since the General Counsel adduced evidence to meet each
of the elements required to establish a prima facie case, Re-
spondent is required to show that it would not have rehired
Mele and Langley even in the absence of their union activity.
See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Respondent contends that Bartomioli decided against rehir-
ing Mele in March 1993 in reliance on reports that his job
performance was unsatisfactory. This defense is wholly un-
convincing. None of Respondent’s spokesmen offered evi-
dence of a single incident which supported Bartomioli’s ra-
tionale for failing to recall Mele. Indeed, only one super-
visor—Lorenzetti —testified about Mele’s performance, and
his comments focused solely on several occasions when he
purportedly observed Mele speeding. Lorenzetti’s testimony
about these incidents did little to inspire confidence; he ap-
peared to be inventing his testimony as questions were put
to him. He could not recall whether Mele was driving in traf-
fic until prodded by counsel; he could not remember at first
whether he reported to Bartomioli on each occasion that he
allegedly observed Mele speeding. He reluctantly acknowl-
edged that he did not observe Mele exceeding the speed
limit, yet made the preposterous claim that Mele was the
only employee he ever witnessed speeding. Such an assertion
defies common sense and everyday experience.
Apart from the multiple defects outlined above which to-
tally undermine Lorenzetti’s credibility, a more basic flaw in-
heres in Respondent’s reliance on his testimony. While nam-
ing only Lorenzetti as the source of reports which led him
to reject Mele for reemployment, Bartomioli never suggested
that these alleged reports concerned Mele’s purported pro-
pensity for speeding. Thus, Respondent failed to produce a
single witness to support Bartomioli’s rationale for refusing
to recall Mele.
Further, Bartomioli’s assertion that Mele could not handle
his job was totally at odds with Mele’s undisputed testimony
that a number of Respondent’s supervisors praised his work.
Indeed, even Bartomioli conceded that he was a good work-
er. Only one person—Lorenzetti—suggested that Mele was
just an average driver. If Mele’s performance was as defi-
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The only person to define this term was Langley who interpreted
it to refer to his union activity.
8 The Board requires a showing of interest by at least 30 percent
of the employees in an appropriate unit before an election will be
authorized. See the Board’s Rules and Regulations, Sec. 101.18.
9 Employee Mark Wilson voluntarily told Bartomolio that he had
signed an authorization card; Joseph Tamburrino’s name was listed
as a member of the organizing commitee in the Union’s letter to
Bartomolio. Both men were laid off in December and recalled in the
spring.
cient as Bartomioli claimed, then why did he rehire him after
the December 1991 layoff? Why was he assigned to drive
the same unwieldy truck he previously operated which had
a transmission so complex that other drivers could not handle
it well? How could Respondent assert that Mele’s perform-
ance was deficient and at the same time explain why he was
the only driver to be recalled for brief assignments during the
early winter months of 1993?
Respondent presented no evidence which would resolve
these questions in its favor no such evidence existed.
Bartomioli’s rationale for his treatment of Mele was totally
fabricated. The only logical explanation for Bartomioli’s fail-
ure to rehire Mele is that he held him responsible for initiat-
ing and promoting the union campaign. Whether Respond-
ent’s conduct is labeled pretextual, or analyzed in accordance
with the burden shifting formula propounded in Wright Line,
the outcome is the same: Respondent discriminated against
Mele to penalize him for his support of the Union in viola-
tion of Section 8(a)(3) and (1) of the Act.
Langley’s situation is more problematic, for there is sub-
stantial evidence that Bartomioli received bona fide com-
plaints about him, at least from Traub, before learning of his
union propensities. Traub did not strike me as a man who
would fabricate such testimony. Moreover Quarello con-
firmed that Traub first brought his complaints about Langley
to him. Further, Traub had ample opportunity over the course
of the summer to observe Langley. Thus, his view that Lang-
ley was argumentative and uncooperative was not formed on
the basis of a few brief incidents.
While the foregoing considerations support Respondent’s
claim that Langley was not recalled because of complaints to
Bartomioli about his negative attitude, other circumstances
tend to indicate that these reports did not weigh heavily
against him. Thus, it is significant that Traub’s complaints
about Langley were made during the summer, before
Bartomioli received the Union’s letter disclosing his status
on the organizing committee. Moreover, Bartomioli appar-
ently did not consider Langley’s behavior serious enough to
warrant removing him from the jobsite as Traub had asked,
although transfer to a different location certainly was an
available option which had been used on other occasions.
Further, although Bartomioli alluded to several other persons
who complained about Langley, Respondent called none of
those named with the exception of Lorenzetti who related
only one encounter with Langley, and that was shortly after
he was hired. Lastly, Bartomioli did not specifically deny
having told Langley he would not let him ‘‘pork’’ him
again.7
While the General Counsel has presented evidence tending
to establish that Langley’s support for the Union was the mo-
tivating factor in Bartomioli’s decision against recalling him,
Respondent also has adduced evidence supporting
Bartomioli’s claim that he decided against recalling Langley
because of negative reports about his attitude. In resolving a
classic mixed motive case such as this, it is instructive to
bear in mind that the burden-shifting test endorsed in Wright
Line, supra, at 1087, requires that the respondent prove ‘‘by
a preponderance of the evidence that it would have reached
the same decision’’ even in the absence of the protected con-
duct.’’ (Emphasis supplied.) Id. (quoting Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274,
287 (1977).
Respondent contends that in order to determine whether it
has met this burden, the following additional considerations
must be taken into account. First, Respondent submits that
since a Board election had been scheduled, Bartomioli had
to assume that at least 30 percent of the 39 drivers on its
payroll in December 1992 signed authorization cards; yet, he
rehired 34 or 87 percent of them.8 Second, Bartomioli had
concrete information regarding the prounion stance of the
two drivers who were identified as members of the organiz-
ing committee. Nevertheless, he recalled one of them. 9
Third, the Board refused to issue a complaint in the case of
Lisa Reed whose belated recall also was the subject of a
union charge. Respondent submits that Bartomioli followed
the same practice in deciding not to recall her as he applied
in rejecting Langley and Mele. Accordingly, Respondent ar-
gues that since the Company did nothing unlawful in Reed’s
case, it follows that it did nothing unlawful in failing to re-
hire Langley and Mele either.
The foregoing arguments are not persuasive. With respect
to the first two of Respondent’s contentions, it is well settled
that an employer’s failure to eliminate all union adherents
does not prove that its actions toward a few were untainted
by antiunion bias. See Master Security Services, 270 NLRB
543, 582 (1984). Accordingly, the fact that Respondent re-
hired 34 drivers, some of whom necessarily signed union au-
thorization cards, or failed to terminate several drivers whose
union sympathies were known, does not necessarily under-
mine the Government’s case that he unlawfully failed to re-
call Langley and Mele.
Respondent’s bootstrap argument that the outcome in
Reed’s case should be dispositive of the cases involving
Mele and Langley is equally unconvincing. The issue posed
here is not whether Respondent’s employment policies and
practices were intrinsically flawed, but whether they were ap-
plied in a neutral, nondiscriminatory manner to the individ-
uals who were allegedly discriminated against in this case.
When viewed from this perspective, it is evident that each
allegation must be evaluated on its merits. In other words,
just as Bartomioli made discrete decisions as to each individ-
ual he reemployed, so too does a Regional Director, the trier
of fact and the Board evaluate decisions on a case-by-case
basis. In sum, the three contentions discussed above do not
bolster Respondent’s defense.
As emphasized above, Wright Line’s burden shifting stand-
ard requires that the Respondent prove ‘‘by a preponderance
of the evidence’’ that it would not have rehired Langley even
in the absence of his union activity. Id. On applying this
standard here, I conclude that the evidence adduced by the
Respondent and the General Counsel is in equipoise. Con-
sequently, the Respondent has failed to prove by a prepon-
derance of the evidence that it would have reached the same
743GEORGE A. TOMASSO CONSTRUCTION CORP.
10 In calculating lost earnings, the compliance officer shall take
into account any periods of time that Lanley and Mele would have
been laid off for nondiscriminatory reasons, in accordance with the
seasonal nature of employment with the Respondent.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
12 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
decision and rejected Langley for reemployment even if he
had not engaged in union activity. Accordingly, I conclude
that Respondent discriminated against Mele and Langley in
violation of Section 8(a)(1) and (3) of the Act by failing to
rehire them in March 1993.
CONCLUSIONS OF LAW
1. Respondent, The George A. Tomasso Construction
Corp., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and the
International Brotherhood of Teamsters, Local 559, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
2. Respondent violated Section 8(a)(3) and (1) of the Act
by failing to recall William Langley and Michael Mele as
drivers in March 1993.
3. The unfair labor practices cited above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
I shall order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the purposes
and policies of the Act, including posting the notice ap-
pended to this decision.
Specifically, the Respondent shall be directed to offer em-
ployees William Langley and Michael Mele reemployment to
their former positions as drivers, or if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges pre-
viously enjoyed. Further, the Respondent shall make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from the date they should have been re-
called to the date of a proper offer of reemployment, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).10
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, The George A. Tomasso Construction
Corp., New Britain, Connecticut, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing to recall or rehire employees, or otherwise dis-
criminating against any employee for supporting the Inter-
national Brotherhood of Teamsters, Local 559, AFL–CIO or
any other union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer William Langley and Michael Mele immediate
and full reemployment 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, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of the decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facility in New Britain, Connecticut, copies
of the attached notice marked ‘‘Appendix.12 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees customarily are posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail to hire, reemploy, or otherwise discrimi-
nate against any of you for supporting the International
Brotherhood of Teamsters, Local 559, AFL–CIO or any
other union.
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer William Langley and Michael Mele imme-
diate and full reemployment 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 and WE WILL make them whole
for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus interest.
THE GEORGE A. TOMASSO CONSTRUCTION CORP.