George P. Bailey & Sons, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 751 (N.L.R.B. 2004)

GEORGE P. BAILEY & SONS, INC. 751
George P. Bailey & Sons, Inc. and International
Brotherhood of Electrical Workers, Local Union
No. 269, AFL–CIO. Case 4–CA–31620
April 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On July 2, 2003, Administrative Law Judge Eric M.
Fine issued the attached decision. The Respondent filed
exceptions and a supporting brief and the General Coun-
sel filed an answering 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, George P. Bailey & Sons,
Inc., Bristol, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.

Peter C. Verrochi, Esq., for the General Counsel.
David J. Truelove, Esq., of Trenton, New Jersey, for the Re-
spondent.
Richard T. Aicher Jr., Assistant Business Manager/Organizer,
of Trenton, New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was
tried in Philadelphia, Pennsylvania, on March 6, 2003. The
charge was filed by the International Brotherhood of Electrical
Workers, Local Union No. 269, AFL–CIO (the Union) on Sep-
tember 27, 2002,1 against George P. Bailey & Sons, Inc. (Re-
spondent). Complaint issued on October 30, alleging Respon-
dent violated Section 8(a)(1) and (3) of the Act by discharging
its employee Thomas Ditmars on August 16.

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.
1
All dates are in 2002 unless otherwise indicated.
On the entire record,2 including my observation of the de-
meanor of the witnesses,3 and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, performs electrical services in the
construction industry from its facility in Bristol, Pennsylvania,
from where it annually performs services valued in excess of
$50,000 outside the State of Pennsylvania. Respondent admits
and I find it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent is a family owned corporation performing elec-
trical construction and maintenance work. There are four own-
ers of Respondent. They are: Larry Bailey (L. Bailey), the
president; William Bailey (W. Bailey), the secretary; Jason
Bailey (J. Bailey), the vice-president; and Dustin Bailey (D.
Bailey), the treasurer. Patti Bailey (P. Bailey), W. Bailey’s
wife, works for Respondent as office manager.4 During the
time alleged discriminatee Thomas Ditmars worked for Re-
spondent, there were three journeyman electricians and four
apprentices employed there. The journeymen electricians were:
Norris Mucklow, Steve Reed, and Chris Kasparaitis. Gary
Wilcox, Aaron Karpa, Ed Kolenda, and Ditmars worked as
apprentices. The four owners also performed electrical work.
A. Ditmars’ employment history
Prior to working for Respondent, Ditmars worked for La-
clede Steel Company as an electrical apprentice. He left there
on September 14, 2001, because the plant closed. Ditmars met
with Local 269 Organizer Stephen Aldrich before and shortly
after he was laid off from Laclede Steel. Aldrich gave Ditmars
a list of nonunion electrical contractors, including Respondent,
as places to apply for work. Ditmars testified Aldrich did not
tell Ditmars he wanted him to serve as a union organizer when
he gave him the list of contractors. Rather, Aldrich told Dit-
mars he had to take a test, which was 3 to 4 months away, to
join the Union as the reason Ditmars should apply for work at
nonunion contractors.
Ditmars began working for Respondent on January 14, with
a starting wage of $11 an hour, and his hours of work were 7
2 The General Counsel’s unopposed motion to correct the transcript,
dated April 28, 2003, is granted and received in evidence as GC Exh.
16.
3 In making the findings, I have considered the demeanor of all wit-
nesses, the content of their testimony, and the inherent probabilities of
the record as a whole. In certain instances, I have credited some but not
all of what a witness said. See NLRB v. Universal Camera Corp., 179
F. 2d 749, 754 (2d Cir.), reversed on other grounds 340 U.S. 474
(1951).
4 L. Bailey and P. Bailey were the only individuals named Bailey to
testify during this trial. It is alleged in the complaint and Respondent
admits that L. Bailey, W. Bailey, and J. Bailey are Respondent’s agents
and supervisors within the meaning of Sec. 2(11) and (13) of the Act.
341 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
a.m. to 3:30 p.m. He reported to master electrician Kasparaitis
and they usually worked as a two-person crew. Ditmars cred-
ited and uncontradicted testimony reveals the following: In
January, a union handbilled at the jobsite where Ditmars was
working for Respondent. There was a discussion about the
handbilling when Ditmars returned to the shop that afternoon.
During the conversation, W. Bailey said in reference to the
union handbillers, let the idiots stand out and freeze, we are
making money.
Ditmars received an oral performance evaluation on April
15.5 At that time, he met with L. Bailey, W. Bailey, J. Bailey,
and P. Bailey. During the meeting, L. Bailey said they were
satisfied with Ditmars’ work, and he was following directions
well. Ditmars received a $2 pay increase to $13 an hour.6
Respondent provided Ditmars with a Nextel cell phone and
radio combination shortly after the April 15 evaluation meeting.
P. Bailey gave Ditmars the phone, but gave him no instructions
as to its usage. Ditmars testified 95 percent of the calls he
made with the phone were personal calls. He testified he as-
sumed he could use it to make personal calls as a perk of the
job as he saw Kasparaitis use his company phone to talk to his
wife numerous times. Ditmars also saw Kolenda, on one occa-
sion, use his cell phone to speak to his friend.
Ditmars was involved in an accident while driving a bucket
truck owned by Respondent on July 9. Ditmars was getting
ready to park the bucket truck and he clipped the right rear
bumper of Kasparaitis’ company van. One of the side com-
partment tool doors fell off the bucket truck, and one was
dented. There was also some damage on the right rear bumper
on the van and a dent on the right side of the van. Ditmars
reported the accident to L. Bailey, who said he appreciated
Ditmars not trying to hide it. Respondent repaired both vehi-
cles in house, and the repairs took several days.
Ditmars second oral evaluation meeting occurred on July 17.
Present were L. Bailey, W. Bailey, J. Bailey, P. Bailey, and
Ditmars. Ditmars’ credited testimony reveals L. Bailey spoke
at the meeting and told Ditmars they liked his work and he was
receiving a 50-cent-an hour raise.7 However, L. Bailey told
Ditmars to be more careful with the company vehicles in view
of Ditmars’ recent accident. L. Bailey’s credited testimony
reveals that, during the meeting, he also told Ditmars that Dit-
mars had a lot of phone calls on his company cell phone and
that the phone was basically to be used for company use, al-
though he could use the phone if he had to call someone.8

5 The evaluation date is set forth in the attendance calendar Respon-
dent maintained for Ditmars. Respondent maintained these calendars
for all of its employees who performed electrical work.
6 I have credited Ditmars’ testimony that L. Baileys attended the
April 15 evaluation session, although L. Bailey testified he was not
there, since it is likely that Ditmars would have a better recollection of
his initial appraisal conference than L. Bailey who engages in similar
conferences for other employees. There is also no contention by Re-
spondent that Ditmars did not receive a positive review at this time.
7 Ditmars testified he had been told he would be evaluated every 6
months as an apprentice, and that he would receive a 50-cent-an-hour
raise at each evaluation.
8 Ditmars admitted L. Bailey said Ditmars was using the company
cell phone too much, and that L. Bailey told him that he should try and
cut back.
Ditmars credited testimony reveals the following: Ditmars
signed a union authorization card on June 14. Ditmars met
with Aldrich at the union hall on Monday, August 12, at which
time Aldrich asked him to be a volunteer organizer at Respon-
dent. Ditmars agreed and Aldrich gave him some pamphlets
and two T-shirts with union logos. Ditmars testified that Al-
drich told him, “if anything happens to me, they have my,
they’re on my side.” Aldrich told Ditmars to pass out the pam-
phlets and try and get a feeling for the Union with the rest of
the company. The parties stipulated that on Tuesday morning
August 13, Aldrich faxed a letter to J. Bailey, on the Union’s
letterhead, identifying Ditmars as a volunteer union organizer.
L. Bailey acknowledged that he saw Aldrich’s letter the day it
was faxed to Respondent. On August 13, Ditmars wore a union
T-shirt to work and he continued to wear one for the rest of the
week. L. Bailey admitted seeing Ditmars wearing the union T-
shirt on one or two occasions.9
P. Bailey’s credited testimony reveals, on the evening of Au-
gust 14, at L. Bailey’s instruction, she typed on a her computer
a memo, dated August 14, to Ditmars which was then signed by
L. Bailey.10 The memo cites Ditmars’ July 9 accident with
Respondent’s bucket truck and describes the repairs needed on
Respondent’s two vehicles as a result of the accident. The
memo also cites the July 17 apprentice meeting where L. Bailey
discussed with Ditmars the issue of careful driving and Dit-
mars’ misuse of the company-issued cell phone. The memo
ends with the following, “As a warning, continued incidents
with the company vehicles, damage to company property or
misuse of company issued equipment could result in discipli-
nary action or termination.”
Ditmars was summoned to a meeting with L. and P. Bailey
on Thursday, August 15, after work at around 3:30 p.m. in one
of Respondent’s offices. Ditmars credibly testified that L. Bai-
9 Ditmars testified that, after work on August 13, he gave union
pamphlets to Kolenda and Karpa. However, General Counsel wit-
nesses Kolenda and Karpa testified Ditmars gave them the pamphlets in
the morning before the start of work. Karpa testified Ditmars gave
them the union literature the week of Ditmars’ discharge. While,
Kolenda estimated Ditmars gave them the literature a couple of weeks
before Ditmars was discharged. Ditmars also testified he spoke to
Kasparaitis about the Union during their lunchbreak on August 13, and
he left about five copies of the Union’s pamphlet with Aldrich’s busi-
ness cards and union authorization cards in the shop at around 3:30
p.m. Respondent’s office and its shop are housed in separate buildings.
Ditmars testified that after work on August 13, Ditmars walked into L.
Bailey’s office and told L. Bailey that Ditmars could not answer any of
L. Bailey’s questions. Ditmars said if L. Bailey had any questions to
call Aldrich and he placed a copy of Aldrich’s business card on L.
Bailey’s desk. L. Bailey denied this aspect of Ditmars’ testimony.
Taking into consideration the contradictory testimony of the General
Counsel’s witnesses as to Ditmars’ union activity on August 13, I do
not credit Ditmars’ claims that he attempted to present L. Bailey with
union materials on August 13, in the face of L. Bailey’s denial. Nor do
I find the General Counsel established that Ditmars distributed union
literature to his coworkers on August 13. I do find, as set forth above,
L. Bailey saw the Union’s fax labeling Ditmars as a voluntary organizer
on August 13, and L. Bailey saw Ditmars wearing a union T-shirt to
work during the week of August 13, before he discharged Ditmars on
August 16.
10 L. Bailey testified he handwrote the memo and P. Bailey typed it.

GEORGE P. BAILEY & SONS, INC. 753
ley said, due to recent events such as the accident Ditmars was
involved in with Kasparaitis’ vehicle, they were going to start
documenting that people have to be careful with company vehi-
cles. L. Bailey handed Ditmars the August 14 written warning
and said this was just for Ditmars to acknowledge he knew to
be more careful and he needed to try and keep his cell phone
use down. Ditmars testified L. Bailey basically read off the
August 14 memo addressed to Ditmars, which Ditmars initialed
during the meeting. Ditmars credibly testified he did not report
to work late on August 15, and that there was no discussion of
the time he arrived for work during this meeting. Ditmars
credibly denied that L. Bailey said anything to Ditmars about
anyone at Respondent damaging or misusing company tools or
that L. Bailey mentioned an upcoming safety meeting.
L. Bailey and P. Bailey gave different accounts of the Au-
gust 15 meeting than that provided by Ditmars. I found their
testimony relating to the meeting to be contradictory, implausi-
ble, and not worthy of belief. They both testified that the rea-
son for the meeting was that Ditmars arrived for work late on
August 15. This in itself is highly suspect since P. Bailey’s
testimony reveals that, at L. Bailey’s direction, she had typed a
written warning to Ditmars on the evening of August 14, the
content of which had nothing to do with Ditmars’ attendance.
Nevertheless, L. Bailey testified, that on the morning of August
15, he saw Ditmars park his car and walk into the shop at about
7:10 to 7:15 a.m. L. Bailey testified Ditmars was supposed to
report at 7 a.m. L. Bailey testified that, at the August 15 meet-
ing, “I explained to him that I called him into the meeting be-
cause he had been late. And I asked him why he was late. He
said he had no reason.” L. Bailey testified he told Ditmars to
call if he was going to be late, to let Respondent know if and
when he was coming so they could plan the work. Contrary to
L. Bailey, P. Bailey testified that L. Bailey did not see Ditmars
arrive at work on August 15, because L. Bailey was out at a
jobsite when Ditmars reported to work. Rather, P. Bailey testi-
fied she was in the office when, later that morning, J. Bailey
told L. Bailey that Ditmars was late when L. Bailey returned
from the jobsite. Aside from the obvious inconsistencies in the
testimony of Respondent’s witnesses, L. Bailey’s failure to
confront Ditmars at 7:15 a.m. on the morning of August 15
about his alleged tardy arrival further undercuts his claim that
he saw Ditmars report late on August 15. I therefore, consider-
ing the witnesses’ demeanor, have concluded that Ditmars re-
ported to work on time on August 15, and have credited his
testimony concerning the August 15 meeting over that of L.
Bailey and P. Bailey.11

11 The August 14 warning to Ditmars was typed on a computer, and
could have easily been amended to include Ditmars’ alleged late arrival
on August 15, when he was presented with the warning that afternoon,
had he in fact reported late the morning of August 15. Yet, there was
no reference to Ditmars’ alleged late arrival in the written warning.
Respondent argues in its brief that an adverse inference should be
drawn by General Counsel’s witnesses Karpa and Kolenda’s failure to
testify that Ditmars reported on time on August 15. I reject this conten-
tion. Ditmars’ credited testimony reveals he was never accused of
reporting late on August 15, prior to his discharge. Noting that the
evidence shows reporting late was not an infrequent occurrence at
Respondent, it would be highly unlikely that an employee, who testified
P. Bailey testified that following the August 15 meeting she
typed a file memo dated August 15, which reads as follows:

A meeting was held on Thursday, August 15, 2002 at 4:20
p.m. Attending the meeting were Larry G. Bailey, Patti Jo.
Bailey and Thomas J. Ditmars. Larry asked Tom to read over
the warning sheet. Tom did so. Larry explained to Tom why
George P. Bailey & Sons, Inc. wrote the warning paper. Tom
was asked that if he agreed with the warning paper to sign the
paper and he did so. Larry went over the damaging of com-
pany tools, misuse of tools, damaging of company vehicles
and safety issues. Tom was made aware of that any employee
who damages or misuse of tools will also be given a warning
paper. Tom was told that in the last 6 months there has been a
lot of damage to company tools and vehicles and that who-
ever damages the company property will be held responsible.
Tom was made aware that we were not singling him out but
that there were going to be other write ups with more recent
damage that was done to company equipment. Tom was also
asked why he was late this a.m. and Tom stated, “no reason”.
Larry told Tom that if you are ever going to be late just give a
phone call, Tom agreed. Tom was made aware that George
P. Bailey & Sons, Inc. was going to have a safety meeting
with all employees. Tom was given a warning paper.12

L. Bailey testified that, during his August 15 meeting with
Ditmars, he did not accuse Ditmars of damaging or misusing
company tools. Rather, L. Bailey testified Respondent was
experiencing a problem with a lot of tools being lost or dam-
aged, and during the meeting, he tried to alert Ditmars that
there was problem at the company. However, L. Bailey testi-
fied he did not put anything in writing in other employees’ files
about damaging or misuse of company tools.
On Friday, August 16, Ditmars was scheduled to work at a
jobsite in Monmouth County, New Jersey, which was about an
hour drive from Respondent’s shop. At the time, Ditmars lived
less than a 5-minute drive from Respondent’s shop. Ditmars
testified that a power failure caused his alarm not to go off on
August 16, and he did not wake up until 9 a.m. He testified he
tried to use his company phone and radio to call in that he was
late, but they would not work. Ditmars home phone was shut
off at the time. Rather, than reporting to Respondent’s shop,
Ditmars went directly to the Monmouth County jobsite and he
arrived there around 10:30 a.m. When Ditmars got to the job,
he told Kasparaitis what happened, and Kasparaitis gave Dit-
mars an assignment, which involved his returning to the shop.
Ditmars arrived at the shop around 11:30 a.m., which was close
to the lunchbreak. At that time, Ditmars met with L. and D.
Bailey in the main office. Ditmars testified L. Bailey said you
were late this morning and you did not call. Ditmars said he
tried calling but the phone would not work. L. Bailey said we
cannot have this and Ditmars was fired. Ditmars testified he
told L. Bailey why he was late, although L. Bailey did not ask
for the reason. L. Bailey followed Ditmars to his car to retrieve

on March 6, 2003, would be able to remember whether another em-
ployee was 10 minutes late or on time on August 15, 2002.
12 There is no contention Ditmars was ever presented a copy of the
August 15 file memo.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
Respondent’s cell phone. Ditmars testified he dialed a number
and demonstrated to L. Bailey the phone did not work. How-
ever, L. Bailey just took the phone and Ditmars went home.
Ditmars testified that L. Bailey did not say anything about the
time he arrived for work on Thursday, August 15, or about his
cell phone use during this meeting. Ditmars admitting telling
L. Bailey that Ditmars messed up by not calling in or notifying
the company. Ditmars denied telling L. Bailey that he did not
blame him for firing him.
L. Bailey testified he learned Ditmars was late around 7:30
a.m. on August 16, when he failed to report to the shop. As a
result, L. Bailey sent Mucklow out with Kasparaitis to the
Monmouth jobsite in place of Ditmars. Mucklow was sup-
posed to go out with L. Bailey, who worked alone instead. L.
Bailey was able to complete the work he had to do that day
without assistance. L. Bailey testified Ditmars reported directly
to the Monmouth County jobsite later that day and Kasparaitis
sent Ditmars back to the shop with an assignment there. L.
Bailey returned to the office right before the noon lunchbreak.
L. Bailey testified he had separate conversations with the other
three owners. He testified they knew he had a meeting with
Ditmars the day before, and “we all decided to terminate him.”
L. Bailey testified Ditmars arrived at the shop around 1 or
1:30 p.m. on August 16, and L. Bailey told him to come into
the office and asked him what happened. L. Bailey testified
Ditmars said he woke up and his phone was blinking. L. Bailey
asked why he did not call and Ditmars said the phone did not
work. L. Bailey asked why Ditmars did not use a pay phone or
his own phone. Ditmars said he did not have a phone. L. Bai-
ley asked why Ditmars did not drive to the shop. Ditmars said
he panicked and drove to the jobsite. L. Bailey said he could
not understand why Ditmars did not try to make a phone call or
come to the shop. L. Bailey said he had to take the man that
was supposed work with L. Bailey and send him on Ditmars’
job. L. Bailey said it was unacceptable for Ditmars not to call
and let them know when or if he was coming in. L. Bailey said
we are going to have to terminate you. L. Bailey testified Dit-
mars said, “I made a mistake, I don’t blame you for firing me.”
L. Bailey testified he walked Ditmars out to his car, and Dit-
mars handed him Respondent’s cell phone and then left. He
testified Ditmars did not do anything with the phone. L. Bailey
went inside the office and handed the phone to P. Bailey and he
asked her to key up the phone’s radio and it worked. He testi-
fied that, to his understanding, if the radio was working then the
phone was working. L. Bailey testified he had made a decision
to discharge Ditmars even before he talked to him, and that no
matter what Ditmars said it would not have impacted on that
decision.
L. Bailey’s account of the August 16 termination meeting
was in many respects similar to that of Ditmars. Neither testi-
fied that L. Bailey told Ditmars that he was being fired, at least
in part, for excessive cell phone usage. Moreover, neither testi-
fied that L. Bailey referenced Ditmars’ alleged late arrival on
August 15, during their August 16 meeting. Since I have con-
cluded, for reasons set forth below, that Respondent’s officials
were not above providing false reasons for discharging Dit-
mars, I have credited Ditmars’ over L. Bailey and have con-
cluded that Ditmars did not tell L. Bailey that he did not blame
L. Bailey for firing him.
While I have in large part credited Ditmars’ account of the
August 16 meeting, I do not credit his claim that his cell phone
was not working on that date. First, I find it highly improbable
that Ditmars’ cell phone did not function on the same day he
testified a power outage caused his alarm not to go off. Dit-
mars testified he did not wake up until 9 a.m. on August 16.
While he knew he was supposed to report to the shop, which
was only 5 minutes from his home to receive his assignment, he
went directly to the jobsite, which was an hour drive. Regard-
less of whether his cell phone worked, it would have been an
easy drive to report to the shop, explain why he was late, and
see if his assignment had changed due to his late arrival. I
therefore do not credit his testimony that his cell phone did not
work, and I also find it irrelevant, because regardless of
whether his cell phone worked, Ditmars knew he was supposed
to contact the shop when he was going to be late or miss work,
as he had done in the past, and he failed to do so. I find the
written warning and disciplinary interview Ditmars received on
the evening of August 15, contributed to Ditmars’ failure to
contact Respondent’s officials on August 16, when he over-
slept. In this regard, L. Bailey testified Ditmars told L. Bailey,
during Ditmars’ August 16 termination meeting, that Ditmars
panicked as the reason for his driving directly to the jobsite
without first contacting Respondent.
Ditmars was discharged on Friday, August 16, and he began
working for a union contractor on Monday, August 19, al-
though he had not taken the Union’s exam, which he testified
was a prerequisite for union-related employment. Ditmars
explained he was able to get a job with a union contractor with-
out the exam because he had been discharged after he became a
union organizer. General Counsel witnesses Karpa and
Kolenda worked for Respondent until they went on strike on
September 26. Karpa and Kolenda testified that they went on
strike over Ditmars’ discharge in that they felt he was unlaw-
fully terminated. Karpa, Kolenda, and L. Bailey testified that
they notified L. Bailey they were going out on strike on Sep-
tember 26. Karpa testified that, after Ditmars was discharged,
in late August, the Union faxed information about Karpa and
Kolenda’s prounion status to Respondent. Karpa testified from
that point until he went on strike, his job assignments remained
the same, he received no write-ups, and no one from manage-
ment approached him about the Union. Kolenda testified that,
on December 13, 2001, P. Bailey had a discussion with him
about excessive cell phone use and that in September 2002, L.
Bailey had a discussion with him about excessive cell phone
use for which Kolenda was given a written warning dated Sep-
tember 9, 2002.
B. Analysis
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board established an analytical framework for deciding cases
turning on employer motivation. To prove that an employee
was discharged in violation of Section 8(a)(3), the General
Counsel must first persuade, by a preponderance of the evi-
dence, that an employee’s protected conduct was a motivating

GEORGE P. BAILEY & SONS, INC. 755
factor in the employer’s decision. If the General Counsel is
able to make such a showing, the burden of persuasion shifts
“to the employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct.”
Wright Line, supra at 1089. See also Manno Electric, 321
NLRB 278, 280 fn. 12 (1996). The elements commonly re-
quired to support a finding of discriminatory motivation are
union activity, employer knowledge, and employer animus.
Farmer Bros. Co., 303 NLRB 638, 649 (1991), enfd. mem. 988
F.2d 120 (9th Cir. 1993). In Washington Nursing Home, 321
NLRB 366, 375 (1996), it was held that:

Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case; even without
direct evidence. Evidence of suspicious timing, false reasons
given in defense, and the failure to adequately investigate al-
leged misconduct all support such inferences. Adco Electric,
307 NLRB 1113, 1128 (1990), enfd. 6 F.3d 1110 (5th Cir.
1993); Electronic Data Systems Corp., 305 NLRB 219
(1991); Visador Co., 303 NLRB 1039, 1044 (1991); Associa-
cion Hospital del Maestro, 291 NLRB 198, 204 (1988); and
Clinton Food 4 Less, 288 NLRB 597, 598 (1988).

Similarly, in La Gloria Oil & Gas Co., 337 NLRB 1120, 1124
(2002), the timing of discharges on the heels of union activity
and evidence of disparate treatment resulted in a finding that
the reasons advanced for the termination of employees Saylor
and Lamp were pretextual and that they were terminated for
their union activity. Thus, the Board has held that when the
stated reasons for a disciplinary action are found to be false,
“the Board may infer that there is another reason—an unlawful
one which the employer seeks to conceal . . . .” Amber Foods,
Inc., 338 NLRB 712, 715 (2002).
In the instant case, on August 13, the Union notified Re-
spondent’s officials by fax that Ditmars was a voluntary union
organizer, and Ditmars began to wear a union T-shirt to work.
I find that L. Bailey reacted to this news by having P. Bailey
type a warning letter to Ditmars on the evening of August 14,
which was presented to Ditmars after work on August 15. The
warning cites two indiscretions that had previously been dis-
cussed with Ditmars during his July 17 evaluation meeting, a
driving accident with Respondent’s vehicles that took place on
July 9, and Ditmars excessive use of Respondent’s cell phone.
L. Bailey testified that he had not reviewed any other of Dit-
mars’ cell phone records between the time of the July 17
evaluation meeting and the time he directed P. Bailey to type
the August 14 warning letter, almost a month later.13 Thus,
Respondent provided no explanation for the timing of the Au-
gust 14 warning letter, and I can only attribute it to Ditmars’
union activity, disclosed to Respondent on August 13. Further,
as set forth above, I have discredited the testimony of L. and P.
Bailey that Ditmars showed up 10 minutes late for work on
August 15. I have therefore concluded that Ditmars’ August 14
written warning tendered to him on August 15 and the August

13 L. Bailey claimed he did not review Ditmars’ cell phone records
until August 16, shortly before he discharged Ditmars.
15 memo to his file were issued for pretextual reasons.14 While
the August 14 warning and the August 15 file memo are not
specifically alleged in the complaint, the circumstances relating
to the issuance of these documents were fully litigated and the
documents are closely related to the events leading to Ditmars’
August 16 discharge. Respondent’s witnesses testified about
these documents and in fact, the August 15 file memo was in-
troduced as Respondent’s exhibit and had not been shown to
Ditmars prior to his discharge. Accordingly, I find that Re-
spondent’s issuance of the August 14 written warning to Dit-
mars and the August 15 file memo to be violative of Section
8(a)(1) and (3) of the Act. See Marshall Durban Poultry Co.,
310 NLRB 68 fn. 1 (1993), enfd. in relevant part 39 F.3d 1312
(5th Cir 1994), where a series of fully litigated warnings closely
related to complaint allegations where found violative of the
Act; and Monroe Auto Equipment Co., 230 NLRB 742, 751
(1977).
Thus, within 3 days of being notified Ditmars was a volun-
tary organizer, Respondent had papered his file with an unlaw-
ful warning letter and file memo, held a disciplinary meeting
for conduct that occurred a month earlier and then discharged
him. I have concluded that the General Counsel has established
a prima facie case that the discharge was unlawfully motivated,
and for the reasons set forth below I find the justifications ad-
vanced for Ditmars’ termination are based on disparate treat-
ment and pretextual.
The evidence is not in conflict that Ditmars did not report on
time on August 16, that he failed to call in, and that he com-
pounded this transgression by reporting directly to Respon-
dent’s jobsite, rather than reporting to Respondent’s facility as
Respondent required him to do. However, L. Bailey’s testi-
mony was somewhat inconsistent at to the reasons he dis-
charged Ditmars. L. Bailey initially testified he decided to
discharge Ditmars when he heard at 11 a.m. on August 16, that
Ditmars had traveled to the Monmouth jobsite without calling
in or reporting to the office, which was only 3 miles from Dit-
mars’ home. L. Bailey then testified he did not know exactly
when he decided to discharge Ditmars, but it was “sometime in
that period where he didn’t show up for work. I didn’t know
that he showed up on the job till after that, so I don’t really
know exactly when it happened.” While L. Bailey initially
testified he decided to discharge Ditmars at 11 a.m., or earlier
when he found out Ditmars did not show up for work, he later
testified Respondent first received Nextel’s phone bill for the
usage period of June 18 to July 17, after lunch on August 16,
although the “statement date” on the bill is July 21, 2002.
L. Bailey then testified, “when I took a look at these phone
records, I would say that was pretty much the end of it.” L.
Bailey testified the Nextel bill showed Ditmars made 221
14 The August 15 memo in fact makes what I have concluded to be a
veiled reference to Ditmars’ union activity by stating Respondent was
not “singling out” Ditmars concerning a recent spate of alleged damage
to company tools and vehicles. Yet, L. Bailey testified that Ditmars
was the only employee for whom there was a private discussion where
damage to company equipment was raised, and there was no documen-
tation about it for any other employee’s file. Moreover, despite the
documentation to his file on this topic, L. Bailey admitted Ditmars was
not being accused of damaging Respondent’s tools.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756
phone calls during the billing period and that he had not dis-
charged Ditmars until after he reviewed the phone records that
afternoon. He now claimed it was the phone records in combi-
nation with Ditmars showing up late for work that caused L.
Bailey to fire him, although he maintained the main reason was
Ditmars’ failure to show up for work.
In addition to the continuous shifts in his testimony, L. Bai-
ley could not adequately explain why it took Respondent al-
most a month to receive the Nextel bill, from the bill’s state-
ment date. He testified P. Bailey could better explain the large
gap in the statement date from the time of receipt of the bill.
However, P. Bailey was never questioned about the timing of
the receipt. I do not credit L. Bailey’s self-serving declaration
that Respondent first received the July 21 bill on August 16, or
that he first reviewed the bill shortly before he discharged Dit-
mars. In this regard, the testimony of Ditmars and L. Bailey
reveals that L. Bailey did not cite Ditmars phone calls during
the August 16 discharge meeting. I find that, had L. Bailey
reviewed the cell phone bill shortly before the discharge meet-
ing as he contended, he would have raised the matter at the
meeting.15 I view the shifting and implausible content of L.
Bailey’s testimony to underscore the pretextual nature of Dit-
mars’ termination.
Concerning, Respondent’s attendance policy, L. Bailey testi-
fied Respondent has no timeclock or sign-in sheets. L. Bailey
testified employees are supposed to report at 7 a.m., but he
initially testified employees would have a 5 to 10 minute grace
period after 7 a.m. before they are marked late.16 He then testi-
fied, “I would guess five minutes.” L. Bailey testified Respon-
dent’s procedure is that if an employee is going to be late they
should call in. He then testified if an employee is going to be 5
minutes late, they will get a lateness marked on Respondent’s
attendance calendar, “but I think normally Patti removed it if
they called.” L. Bailey then testified that even if they do call, it
would still be marked on the calendar with a note they called.
L. Bailey also testified, that “I would expect that if a person
came in late, that they could at least come in and say I’m late
because of something happened, and there wouldn’t be a prob-
lem if they had an excuse. There was an accident, it wouldn’t
be a problem.” Thus, Respondent’s attendance policy is impre-
cise at best.17
Moreover, a review of Respondent’s attendance calendars
reveals that Respondent tolerated much worse attendance from
other employees than the conduct, which resulted in Ditmars’
discharge. Ditmars was hired on January 14. He attended a
funeral on May 16, which P. Bailey testified was an excused
day off. Ditmars was absent on July 12, for which P. Bailey
testified he placed a timely call to let Respondent know he was

15 I also note that the July 21 Nextel bill is clear on its face that the
vast majority of the calls on the bill had been made by July 17, which
was on or before L. Bailey’s July 17 counseling to Ditmars that he
needed to cut back on his cell phone usage.
16 Respondent’s attendance calendar for Ditmars shows an entry for
August 15 of no call arrived 7:10 a.m.
17 L. Bailey testified Respondent’s recordkeeping improved when P.
Bailey took over. However, P. Bailey testified before she converted
from part time to full time in June 2001, the other secretary kept the
attendance records, and she kept pretty good records.
going to be out. Ditmars did not work on July 29 because his
son was hospitalized. Ditmars showed up at Respondent’s
facility before the start of the workday to let them know he
would not be available. L. Bailey testified Ditmars absence on
July 29 was not held against him. Ditmars reported late on
August 16, and was summarily discharged.
Respondent’s records for apprentice Michael Bradley show
he was hired on April 3, 2000. P. Bailey’s testimony, on re-
view of Bradley’s 2000 attendance calendar shows: Bradley
was absent on April 13 and 15, May 2, 3, and 18, June 13 and
14, July 17, August 14, September 22, and November 6, 2000.
Bradley only worked partial days on April 28, May 10 and 13,
June 6, July 5, 7, and 15, August 11 and 18, and on September
27, 2000. Bradley was late for work on May 16, June 17, July
21, September 6, October 2, 6, and 25, and on November 13
and 14, 2000. On July 25 and 26, Bradley took vacation with
no pay. On October 15, Bradley walked off the job. Bradley
did not receive his first oral warning for attendance until Octo-
ber 3, and on October 9, Bradley received a second oral warn-
ing. Bradley was discharged on November 15, 2000, due to
absenteeism and tardiness.
Respondent’s records show apprentice Gerald Capie was
hired on February 12, 2001. P. Bailey’s testimony, on review
of Capie’s 2001 attendance calendar shows that: Capie was late
for work on February 13, showing up at 10:30 a.m. On Febru-
ary 17, he did not call or show up for work. He was late on
February 17, showing up at 7:15 a.m. He was late on March 1
and was given a verbal warning on that date. Capie was late on
March 12, arriving at 7:15 a.m. Capie was absent from work
on April 5, but did not call in until 7:15 a.m. Capie was late on
April 18 and 19, arriving at 7:10 a.m. on each day. He was late
on April 21, arriving at 7:30 a.m. and he was sent home. On
May 21, Capie did not call or show up for work. J. Bailey
called and left a message for Capie to call Respondent. The
calendar reflects that Capie called at 2:30 p.m. on May 22,
2001, and quit. L. Bailey testified Capie called and asked if he
could quit after not showing up for 2 days.
Karpa was hired on May 22, 2000. Karpa’s credited testi-
mony reveals that, not long after he started work in 2000, he
missed a day of work without calling in. L. Bailey told Karpa
not to let it happen again. P. Bailey, on review of Karpa’s 2001
attendance calendar, testified that: On March 24, Karpa was 30
minutes late, and on March 26, he was 10 minutes late. Karpa
was 10 minutes late on April 16, and 90 minutes late on April
17. On April 18, Karpa was issued a verbal warning for com-
ing in late. Karpa worked part of the day on July 13, and he
called in sick on August 19 and 20. Karpa took off on August
23 and 24, due to a death in the family, and W. Bailey coun-
seled him for being late on August 25.18 On November 4,
Karpa did not call or show up for work. On November 8,
Karpa was 90 minutes late. On December 26, Karpa called at
6:30 a.m. and let Respondent know he did not have a ride to
18 Karpa credibly testified around the end of the summer 2001,
Karpa was 1½ to 2 hours late for work. P. Bailey called him at his
home around 8:30 a.m. and woke him up. When Karpa arrived at his
jobsite, J. Bailey asked Karpa if they were going to have to call him
every day to make sure he came to work, and Karpa said no.

GEORGE P. BAILEY & SONS, INC. 757
work. On December 27, L. Bailey and W. Bailey counseled
Karpa. P. Bailey’s testimony, on review of Karpa’s 2002 at-
tendance calendar, reveals that: Karpa was late on February 16,
reporting at 7:30 a.m., and late on February 19, reporting at
7:25 a.m.19 On August 26, Karpa called in sick, and on August
30, Karpa left at noon.
Kolenda was hired on September 10, 2001. P. Bailey, on re-
view of Kolenda’s 2001 absentee calendar, testified that:
Kolenda left early on October 9 and on October 11, at 1 p.m.
and 3 p.m., respectively. Kolenda was scheduled to work on
Saturday, November 10, but he did not show and failed to call
until 11:30 a.m., and L. Bailey told him not to come in.20 P.
Bailey, on review of Kolenda’s 2002 calendar, testified that on
January 12, he was supposed to report at 7 a.m., but did not call
in until 8 a.m. On February 9, Kolenda did not show or call in.
Rather, someone from the company called him and he arrived
at work at 7:30 a.m. On August 11, Kolenda left an hour early.
Thus, Respondent’s attendance records show that it tolerated
multiple attendance infractions from its employees, until it was
notified that Ditmars was a voluntary organizer. At which
point, it discharged Ditmars for being late on one occasion.
Respondent contends at page 3 of its post-hearing brief that, “In
the past year or two, the employees were provided Nextel tele-
phones and radios for the purpose of calling in, as well as
communicating with other employees.” Respondent argues at
the same page of its brief that its attendance policy “became
more stringent once the employees were given the Nextel cell
phones/radios.” I do not find these arguments to be very con-
vincing. First, Respondent never established when it started
using the cell phones. P. Bailey could only testify that she did
not believe Capie, who worked for Respondent in 2001 was
given a Nextel phone, and that she did not believe but was not
sure whether Bradley, who worked for Respondent in 2000 had
one. Moreover, L. Bailey never testified Respondent’s atten-
dance policy changed when employees received cell phones. In
fact, he testified, despite his employees having cell phones that
“I would expect that if a person came in late, that they could at
least come in and say I’m late because of something happened,
and there wouldn’t be a problem if they had an excuse.” “But
if somebody shows up late and doesn’t say anything to you or
doesn’t call, to me they’re trying to come in late without letting
me know they’re late, and I got a problem with somebody do-
ing that.” Thus, I reject the argument that the attendance policy
changed when employees were given cell phones.21

19 L. Bailey testified that he made the lateness notations on Karpas’
attendance calendar for February 16 and 19. L. Bailey testified he did
not have an independent recollection of those dates, but based on his
review of the calendar he testified Karpa called in on time and stated he
would be late on those two dates. I do not credit L. Bailey’s testimony
that Karpa called in a timely fashion. Respondent’s calendars show
multiple late arrivals for several employees, some coming in as little as
10 minutes late. Yet, the calendars in most instances do not show
whether the employee called in and notified Respondent he was going
to be late. Considering his demeanor, I do not find Respondent’s atten-
dance calendars as precise as L. Bailey attempted to portray them con-
cerning whether someone called in to report they were going to be late.
20 Kolenda testified he overslept.
21 I also reject Respondent’s contention that Ditmars intentionally
engaged in conduct that would result in his discharge so he could obtain
In sum, Respondent was notified Ditmars was a union organ-
izer on August 13. On August 15, he was given a written warn-
ing dated August 14, for conduct occurring a month earlier for
which Respondent at the time concluded only required a verbal
counseling. I have determined that Respondent has, after the
fact, falsely accused him for reporting 10 minutes late on Au-
gust 15, and has discharged him for reporting late on August
16, although theretofore Ditmars had maintained a good atten-
dance at Respondent. Respondent’s records and the credited
testimony shows that Respondent had tolerated much worse
attendance from other employees, without even disciplining
them, than the conduct for which it discharged Ditmars. Ac-
cordingly, I find the reasons advanced for Ditmars’ termination
were pretextual and Respondent discharged Ditmars on August
16, in violation of Section 8(a)(1) and (3) of the Act.22
Respondent argues in its brief that in July 2002, Ditmars was
warned about excessive phone use, and that Ditmars, at that
time, assured L. Bailey he would cut back. It is argued that
after Ditmars was discharged, a review of the prior month’s
phone bill, again reflected a large disparity of the personal calls
made by Ditmars when compared to the calls of other appren-
tices. Respondent contends at page 13 of its brief, that once
Ditmars’ continued excessive phone use was discovered after
his discharge, it is clear that Ditmars would have been dis-
charged at that time. In this regard, L. Bailey testified he had
never had an employee use his cell phone to the extent Ditmars
was using it. L. Bailey testified, that after Ditmars was dis-
charged, he reviewed the phone bills for the last month Ditmars
had worked there and that Ditmars’ phone usage was excessive
for 4 months in a row.
In Tel Data Corp., 315 NLRB 364, 366 (1994), affd. in rele-
vant part 90 F.3d 1195 (6th Cir. 1996), the Board set for the
following standard for consideration of knowledge of miscon-
duct obtained by a respondent after if had unlawfully dis-
charged an employee. It was held in that case that:

Under Board precedent, ‘if an employer satisfies its burden of
establishing that the discriminatee engaged in unprotected
conduct for which the employer would have discharged any
employee, reinstatement is not ordered and backpay is termi-
nated on the date that the employer first acquired knowledge
of the misconduct.’ Marshall Durbin Poultry Co., 310 NLRB
68, 70 (1993), citing John Cuneo, Inc., 298 NLRB 856, 856–
857 (1990), and Axelson, Inc., 285 NLRB 862, 866 (1977).

The Board concluded in Tel Data Corp., supra at 367, where it
was discovered that the discriminatee over reported hours on
his timecard, that the respondent “did not satisfy its burden of

higher union wages by working elsewhere. Ditmars overslept on Au-
gust 16, but he thereafter drove an hour directly to the Monmouth job-
site in an effort to rectify his mistake. While admittedly he should have
called Respondent or reported to the shop before going to the jobsite,
his driving an hour in an effort to begin work does not suggest that
Ditmars was an individual who was intent on forfeiting his job.
22 I find cases such as Maple Grove Healthcare Center, 330 NLRB
775, 777 (2000), relied on by Respondent to be distinguishable from
the facts herein. In Maple Grove, the alleged discriminatee had a series
of prior disciplines, and the respondent maintained a uniform policy of
progressive discipline resulting in the employee’s discharge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758
establishing that it would have discharged any other employee
for the same conduct. Accordingly, Frederick is entitled to
reinstatement and full backpay.” In Marshall Durbin Poultry
Co., 310 NLRB 68, 70 (1993), affd. in relevant part 39 F.3d
1312 (5th Cir. 1994), the Board refused to order reinstatement
of an unlawfully discharged supervisor. The Board held the
respondent had satisfied its burden of establishing that upper
management had a policy of not tolerating sexual misconduct
of its supervisors, and in fact had discharged a supervisor in the
past for admittedly engaging in such behavior.
I find that Respondent has not met its burden, under the
above authorities, of establishing it would have discharged
Ditmars when it reviewed its August 26 phone statement. The
record shows that, prior to gaining knowledge of any union
activity, Respondent had counseled Kolenda on December 13,
2001, about excessive cell phone use. Kolenda had started
working for Respondent on September 10, 2001. He testified
that in December 2001, he had a discussion with P. Bailey
about excessive cell phone use, and Respondent’s assertion is
uncontradicted that this took place on December 13, 2001.
Respondent’s records reveal that for its cell phone bills with a
statement date of November 18, 2001, Kolenda made 34 calls,
which created no additional cost for Respondent. (See Appen-
dix A for a summary of cell phone use among Respondent’s
apprentices for the period of November 18, 2001, to September
21, 2002.)23 While Kolenda’s cell phone use dropped to 11
calls for the period in Respondent’s January 2002 statement, he
returned to 62 and 68 calls for the subsequent February and
March billing dates, but received no warning at that time. Be-
ginning in April 2002, Respondent had to pay small amounts of
extra money on a monthly basis for Kolenda’s cell phone us-
age. Yet, he did not receive a written warning about it until
September 9, 2002, after Respondent was alerted to his union
activity. The written warning to Kolenda states “Further mis-
use of the phone privilege could result in disciplinary action or
termination.” Thus, the written warning for this offense Re-
spondent did not threaten Kolenda with automatic discharge.
During the period of April 21 to August 26, 2002, apprentice
Wilcox averaged 46 calls a month to Kolenda’s 43. For the
statement date of April 21, 2002, Wilcox made 85 calls, at an
extra cost of $21.92 to Respondent. Yet, there is no contention
that Wilcox, for whom there was no evidence of union activity,
ever received a warning for excessive cell phone usage. Wil-
cox’ cost of the phone usage for the month of April was almost
three times higher than any monthly statement attributed to
Ditmars.
Concerning Ditmars’ phone usage, he made 79 calls, as re-
flected in Respondent’s May 25 statement. Ditmars calls in-
creased to 144 in Respondent’s June 21 statement. On July 17,
L. Bailey verbally counseled him about excessive cell phone
usage. Respondent’s statement for calls covering the period of
June 17 through July 18, did not issue until July 21. However,
the statement for this period reveals Ditmars usage had in-
creased to 221 calls. The vast majority of these calls were
made before Ditmars received the July 17 verbal counseling.

23 Respondent did not submit any bills into evidence, prior to the
November 18, 2001 statement.
Ditmars was discharged on August 16. However, the August
26 phone bill reveals that despite L. Bailey’s verbal counseling,
Ditmars did not significantly cut back on his cell phone use in
that he made or received 152 calls during this billing period.
Nevertheless, the evidence reveals Respondent had no fixed
policy on the amount of calls an employee could make, and that
any limitations on the amount of personal calls it tolerated from
employees was not strictly enforced. In this regard, Respon-
dent had never even issued a written warning to any employee
about cell phone usage until after it learned employees were
engaging in union activity. Taking into consideration Respon-
dent’s inconsistent application of its phone policy, I cannot find
Respondent has established it would have discharged “any
employee” who engaged in the conduct Ditmars engaged in
concerning his cell phone usage.24 I therefore find Respondent
has not established a sufficient basis to bar Ditmars from rein-
statement. See Tel Data Corp., supra, and Marshall Durbin
Poultry Co., supra.25
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) and (3) of the Act by:
(a). On August 15, 2002, issuing a written warning dated
August 14, 2002, to its employee Thomas Ditmars because he
engaged in union activities.
(b). On August 15, 2002, placing a disciplinary memo in
employee Thomas Ditmars’ file because he engaged in union
activities.
(c). On August 16, 2002, discharging employee Thomas
Ditmars because he engaged in union activities.
2. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged em-
ployee Thomas Ditmars must offer him reinstatement and make
him whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from August 16, 2002, the date of
Ditmars’ discharge to the date of a proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
24 In reaching this conclusion, I do not find that Respondent cannot
discharge Ditmars, or any other employee, for misuse of Respondent’s
cell phone. I only find that Respondent has not established it would
have discharged Ditmars at the time it received his August 26 phone
bill, absent his union activity.
25 As set forth above, Respondent tolerated repeated violations of its
attendance policy by its employees before it discharged anyone. More-
over, a former apprentice named Ford worked for Respondent from
May 2000, until he was discharged in November 2001. Ford’s dis-
charge memo states he worked for Respondent for 2 years with multi-
ple customer complaints and no advancement in his performance. It is
stated in the memo, “we have given you multiple opportunities to better
yourself and still no advancement has been shown.” Thus, in the past
Respondent has shown a wide range of latitude prior to discharging an
employee.

GEORGE P. BAILEY & SONS, INC. 759
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended26
ORDER
The Respondent, George P. Bailey & Sons, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing warnings and file memos to employees because
they engage in union activities.
(b) Discharging employees because they engage in union ac-
tivities.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer em-
ployee Thomas Ditmars full reinstatement to his former posi-
tion or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make Thomas Ditmars whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of
this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful written warning, file
memo, and discharge of Thomas Ditmars and within 3 days
thereafter notify Ditmars in writing that this has been done and
that the written warning, file memo, and discharge will not be
used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place to be designated by the
Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by Region 4, post at its facil-
ity in Bristol, Pennsylvania, copies of the attached notice
marked “Appendix B”27 Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-

26 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
27 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 Judgment
of the United Stated Court of Appeals Enforcing and Order of the Na-
tional Labor Relations Board.”
ployees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent on or after
August 15, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT issue written warnings or file memos to em-
ployees because they engage in activities on behalf of the Inter-
national Brotherhood of Electrical Workers, Local Union No.
269, AFL–CIO, or any other labor organization.
WE WILL NOT discharge employees because they engage in
union activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL within 14 days of the Board’s Order, offer Thomas
Ditmars full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Thomas Ditmars whole for any loss of earn-
ings and other benefits he may have suffered as a result of the
unlawful discrimination against him in the manner instructed
by the National Labor Relations Board.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful written
warning, file memo, and discharge of Thomas Ditmars and
within 3 days thereafter notify him in writing that this has been
done and that the written warning, file memo, and discharge
will not be used against him in any manner.
GEORGE P. BAILEY & SONS, INC.

GEORGE P. BAILEY & SONS, INC. 751

341 NLRB No. 108