Gilston Electrical Contracting Corp.

National Labor Relations Board - Board Decisions

Aug 20, 1991

304 N.L.R.B. 124 (N.L.R.B. 1991)

124
304 NLRB No. 24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the judge’s finding that Local 363 engaged
in unfair labor practices in violation of Sec. 8(b)(1)(A) of the Act.
2 Respondent Gilston Electrical Contracting Corporation (Gilston) has ex-
cepted to some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolutions un-
less the clear preponderance 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.
We note that Respondent Gilston is not precluded from showing at the com-
pliance stage of this proceeding that at some time after his unlawful layoff
on October 17, 1989, employee Robert Vitelli would have been lawfully laid
off because there was no work for him.
3 We shall modify the judge’s recommended Order by adding the standard
expunction provision the Board includes in cases of unlawful discipline. See
Sterling Sugars, 261 NLRB 472 (1982). We shall also delete the words ‘‘inter-
fering with’’ from the cease-and-desist order the judge recommended be issued
against the Respondent Union because these words do not appear in Sec.
8(b)(1)(A) of the Act.
Gilston Electrical Contracting Corporation and
Robert Vitelli
Industrial and Allied Trades Workers, Local 363,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO and Robert Vitelli. Cases
29–CA–14472 and 29–CB–7438
August 20, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On May 14, 1991, Administrative Law Judge Robert
T. Snyder issued the attached decision. Respondent
Gilston Electrical Contracting Corporation filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in support of the judge’s decision.
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 exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent Gilston
Electrical Contracting Corporation, New York, New
York, its officers, agents, successors, and assigns, and
the Respondent Industrial and Allied Trades Workers,
Local 363, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO, its officers, agents, and representatives,
shall take the action set forth in the Order as modified.
1. Insert the following as paragraph A,2,(b) and re-
letter the subsequent paragraphs.
‘‘(b) Remove from its files any reference to Robert
Vitelli’s unlawful layoff or its failure to recall him and
notify him in writing that this has been done and that
the layoff or failure to recall will not be used against
him in any way.’’
2. Substitute the following for paragraph B,1,(b).
‘‘(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.’’
3. Substitute the attached notices for those of the ad-
ministrative law judge.
APPENDIX A
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 lay off, discharge, or otherwise dis-
criminate against our employees with respect to their
hire or tenure of employment because they joined, sup-
ported, or assisted Local Union No. 3, International
Brotherhood of Electrical Workers, AFL–CIO, or any
other labor organization or because they engaged in
concerted activities for the purpose of collective bar-
gaining or other mutual aid and/or protection.
WE WILL NOT threaten our employees with dis-
charge and other unspecified reprisals if they vote in
a Board-conducted election for certification of rep-
resentative.
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 Robert Vitelli immediate and full re-
instatement 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 privi-
leges previously enjoyed, and WE WILL make him
whole with interest for any loss of earnings and other
benefits he may have suffered as a result of our action
against him.
WE WILL remove from our files any reference to the
layoff or failure to recall Robert Vitelli, and WE WILL
125GILSTON ELECTRICAL CONTRACTING CORP.
1 All dates refer to 1989 unless otherwise noted.
notify him in writing that this has been done and that
the unlawful layoff or failure to recall will not be used
against him in any way.
GILSTON ELECTRICAL CONTRACTING
CORPORATION
APPENDIX B
NOTICE TO MEMBERS
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.
WE WILL NOT threaten our members that we will en-
courage their discharge by their employer if they vote
in a Board-conducted election for certification of rep-
resentative.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
INDUSTRIAL AND ALLIED TRADES
WORKERS, LOCAL 363, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, AFL–CIO
James P. Kearns, Esq., for the General Counsel.
Gary C. Cooke, Esq. and Sanford Pollack, Esq. (Horowitz &
Pollack, P.C.), of South Orange, New Jersey, for the Re-
spondent Employer.
Edward J. Quinlan, Esq. of New York, New York, for the
Respondent Union.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was heard by me on June 6, 1990, in Brooklyn, New York.
The consolidated complaint in Case 29–CA–14472 alleges
that Gilston Electrical Contracting Corporation (Gilston),
threatened to discharge or take reprisal against any employ-
ees who voted in a Board conducted representation election
in violation of Section 8(a)(1) of the Act, and laid off and
refused to recall the Charging Party, employee Robert Vitelli,
in order to discourage him from voting in the the election
and because he joined and assisted Local Union No. 3, Inter-
national Brotherhood of Electrical Workers, AFL–CIO (Local
3), in violation of Section 8(a)(3) and (1) of the Act. The
consolidated complaint in Case 29–CB–7438, alleges that In-
dustrial and Allied Trades Workers, Local 363, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO (Local 363), directed its
members not to vote in the election and threatened its mem-
bers that it would encourage their discharge by their em-
ployer if they did vote in the election. In their respective an-
swers, the Respondents denied the commission of any unfair
labor practices.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. General Counsel
and the two Respondents each filed posttrial briefs which
have been carefully considered. On the entire record in the
case including my observation of the witnesses and their de-
meanor I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Gilston, a New York corporation, with its principal office
and place of business located at 338 East 95th Street, New
York, New York, has been engaged in providing electrical
contracting services to both commercial and governmental
customers. During the year preceding issuance of complaint
on December 29, 1989, Gilston, in the course and conduct
of its business operations, performed services valued in ex-
cess of $50,000 for various enterprises located in the State
of New York, including, inter alia, The Environmental Pro-
tection Administration and The Department of Sanitation,
agencies of the City of New York, each of which enterprises
is directly engaged in interstate commerce and meets a Board
standard for the assertion of jurisdiction, exclusive of indirect
inflow or indirect outflow. Gilston admits, and I find, that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Respondents Gilston
and Local 363 admit, and I find that Local 363 and Local
3 are each a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Setting: Pending Representation Proceeding and
Positions of the Participants
On April 28, 1989,1 Local 3 filed a petition for certifi-
cation of representative in Case 29–RC–7191, seeking an
election in a unit consisting of all electricians, maintenance
mechanics, helpers and apprentices, excluding all office cleri-
cal employees, guards and supervisors as defined in the Act,
employed by all employers represented by United Electrical
Contractors Association, a/k/a United Construction Contrac-
tors Association (the Association). The petition listed Local
363 as the recognized collective-bargaining agent and 725
employees in the unit. During the investigation of the peti-
tioner’s showing of interest, the Association originally sub-
mitted to the Region a list of employer-members totaling 91
named employers, including that of Gilston. Subsequently, in
a report on objections and challenges issued following the
election, the Regional Director found, inter alia, that as of
the date of filing of the petition, there were 91 members of
the Association. On September 13, the Association, Local 3,
as Petitioner, and Local 363, as Intervenor, entered a Stipu-
lated Election Agreement which was approved by Alvin
Blyer, the Regional Director for Region 29 of the Board, on
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
September 14, providing for an election to be conducted on
October 18 among all employees in the petitioned for unit.
By letter dated September 25, Sanford Pollack, an attorney
for Local 363 informed Regional Director Blyer that he had
been advised that all members of the Association, except for
six companies, had resigned from the Association, with ap-
proval of the Association and Local 363, and accordingly
moved to be released from the stipulation. Among the em-
ployers whose purported resignation from the Association
formed the basis for the Association’s motion to withdraw
from the stipulation was the Respondent employer, Gilston.
By responsive letter to Pollack, copies to all parties, Re-
gional Director Blyer denied that motion, noting, inter alia,
that the Board in Dittler Bros., 132 NLRB 444, 446 (1961)
refused to allow an employer to withdraw from a multiem-
ployer group after a petition for an election had been filed
by a rival union, and that Local 363 had failed to make a
claim or submit any evidence that any of the purported em-
ployer withdrawals from the Association antedated the filing
of the petition on April 28.
In subsequent correspondence between them during Octo-
ber and prior to the election, Pollack renewed the motion on
behalf of Local 363, and Regional Director Blyer reaffirmed
his denial of the motion. As a consequence of the Associa-
tion’s position, it failed and refused to provide a list of eligi-
ble voters to the Regional Office for use in the election nor
did it otherwise participate in the election and many of its
claimed former members failed to post the notices of election
provided them by the Region. In furtherance of what the Re-
gional Director later described in his ‘‘Report on Objections
and Challenges’’ as a ‘‘collusion that took place between the
Association and Intervenor (Local 363),’’ whose common
goal was to undermine the integrity of the election, ‘‘certain
employer-members of the Association, as well as representa-
tive of the Intervenor, vigorously discouraged employees
from voting in the election, as well as engaging in other re-
lated alleged conduct including the acts and conduct alleged
as unfair labor practices in the instant complaint.’’ Thus, in
a letter dated October 6, addressed to the membership, Pat-
rick J. Bellantoni, secretary-treasurer of the Intervenor, Local
363, wrote, ‘‘Because the National Labor Relations Board
has failed to supply the parites [sic] to the election with in-
formation required by law to hold a valid and binding elec-
tion, we suggest that you do not bother to vote on the date
set for the election.’’ Also, approximately a week before the
scheduled election, Marvin Gilston, president of Gilston, ad-
mittedly told his employees who happened to be gathered to-
gether at his office and place of business in Manhattan, that
with respect to the upcoming union election, he knew that
Local 3 men were coming down to the job and talking to
them, but that Gilston Electric was not part of this U.C.C.
organization and it had nothing to do with the vote.
The election was held on October 18. It appears that the
Petitioner, Local 3, mailed individual notices of election to
those whom it knew to be unit employees. Furthermore, in
the absence of an Excelsior list, employees voted by affida-
vit. The election was held at five polling places, one each
located in the boroughs of Manhattan, Bronx, Queens, and
Brooklyn in New York City, and in Nassau County. Of the
161 employees who participated, 5 voted for Petitioner and
156 had their ballots challenged. Thereafter, the Association
and Intervenor each filed timely objections to the conduct af-
fecting the results of the election. In a 68-page ‘‘Report on
Objections and Challenges,’’ with exhibits attached, the Re-
gional Director recommended in major part that the Associa-
tion’s and Intervenor’s objections be overruled in their en-
tirety, that certain challenged ballots be opened and counted
and a revised tally of ballots be issued, that the challenges
to certain other ballots be sustained, that a hearing be con-
ducted concerning certain other challenges if the challenges
to their ballots are still determinative of the outcome of the
election on the issuance of a revised tally of ballots, and that
after a revised tally of ballots is serviced on the parties, if
the results of the election are determinative, that the appro-
priate certification be issued. Exceptions were filed to the re-
port and, at close of hearing, were pending before the Board.
B. The Alleged Unlawful Conduct by Respondents
Gilston and Local 363 Against Robert Vitelli, the
Charging Party
Robert Vitelli, the Charging Party, is a journeyman elec-
trician who installs electrical equipment. He first became em-
ployed by Gilston in June, on referral from Local 363. He
was hired by Marvin Gilston, the president. He was initially
paid at the rate of $14 per hour for a 35-hour week, but by
July, was earning $26 per hour.
Vitelli testified that his direct supervisor was Albert
Petrocelli. Marvin Gilston told Vitelli, ‘‘When you go to the
job, Albert’s the boss. He’s in charge, whatever he says,
goes.’’ On arriving at the jobsite at the beginning of the day,
Albert assigned Vitelli and others specific projects to per-
form, and on their completion, he assigned them some other
project or work detail. Petrocelli always checked the work
performed, and when he was not satisfied with its quality, or-
dered the work of electrical installation to be removed and
reinstalled. Petrocelli also disciplined employees. When em-
ployees reported late to work at a jobsite, he would send
them home. If a particular employee’s speed and production
wasn’t up to his standard, he would get on their case and
thereafter tell them to pick up their pace and move faster.
According to Vitelli, Petrocelli was the only Gilston super-
visor on his jobsites.
Vitelli saw Petrocelli fire another employee, apprentice
Lloyd Daniels, the same day he himself was transferred, Oc-
tober 17. On one occasion, when Vitelli became sick while
at work, he told Petrocelli he wasn’t feeling well and
Petrocelli, on his own, told him to go home at midday. The
employees did not fill out time sheets on the job. Instead,
Petrocelli kept track of the electricians’ hours, production
and status of the work projects.
Petrocelli did not use the tools of the trade, but, rather,
oversaw and was in charge of the worksites to which Vitelli
was assigned. Petrocelli also was assigned a company van
which had a telephone with which he communicated with the
Gilston office.
After receiving a copy of the letter dated October 6 from
Local 363 advising the members not to vote in the election
scheduled for later that month, Vitelli discussed it on the job
with fellow workers.
One morning, during their coffeebreak on the jobsite, a
discussion ensued among Vitelli, another journeyman, Sal
Domingo, four or five apprentices and Albert Petrocelli. Ev-
erybody was talking about whether they should go vote or
not, and the Union doesn’t hack the voting, so they don’t
127GILSTON ELECTRICAL CONTRACTING CORP.
know if they should go vote. Vitelli spoke up and said, ‘‘I
think we should go vote.’’ Someone said, ‘‘If you are going
to vote, it’s probably for the other union.’’ At this point,
Petrocelli said, ‘‘If you go vote, you know, your job is going
to be on the line.’’ Vitelli did not respond. All other employ-
ees present, except one, said they weren’t going to vote. Ap-
prentice Lloyd Daniels also said he was going to vote, hut
did not voice a preference. Later, during the discussion,
Vitelli did indicate that he intended to vote for Local 3.
On another occasion, before the scheduled election, as
Petrocelli was laying out a job for him, Vitelli asked, con-
fidentially, what he thought about it, and what he thought the
outcome would be. Petrocelli replied, ‘‘Well, I can’t reply to
you, because I’m supervision on the job.’’ Vitelli said, ‘‘I’m
thinking about going down and voting.’’ Petrocelli re-
sponded, ‘‘Well, if you go down and vote and the boss finds
out, you will surely get fired.’’
A few days before the election, near the end of the work-
day, Petrocelli told Vitelli and the other workers at his job-
site to report back to the shop after work. The employer
wanted to have a talk with them. When Vitelli arrived, he
saw the other workers assembled. Also present were Marvin
Gilston, the president, his two sons Greg and Rick Gilston,
and Foremen Julie Salantano and Albert Petrocelli.
Marvin Gilston addressed them. He told them, ‘‘Don’t
vote. You are not eligible to vote because I am not a mem-
ber of the Association anymore.’’ He then added, ‘‘If your
conscience so permits you to vote, go ahead and vote but I
will not be happy with you.’’ That was all Gilston said on
that subject and the meeting ended.
Vitelli’s last workday for Gilston was October 17, the day
before the election. At the end, he was packing up his equip-
ment and tools. Petrocelli pulled Vitelli aside and said, ‘‘You
have to report to this job, which is at the Metropolitan Cor-
rectional Center. It’s a new job going up.’’ He also said,
‘‘Boss isn’t happy with the production on the job. He wants
to shut the job down.’’ Vitelli was also given a slip of paper
with the information as to when he was to report. Vitelli
asked if the job was for Gilston Electric and Petrocelli said
that it was. Vitelli then asked who was paying him. Petrocelli
then said, ‘‘Gilston Electric is paying you. You are going to
be loaned out to another shop for one week’s time.’’
The following day, October 18, Vitelli reported to P.T.
and R. Electric (P.T. & R.), and worked for that company
for 3 weeks until the Federal Correction Center job was com-
pleted on November 9, when he was laid off. Vitelli then
telephoned Gilston and spoke to one of the secretaries. He
asked if Marvin was there. She said, ‘‘No.’’ He said, ‘‘This
is Bobby Vitelli. Do you know if I can go back to work if
there is any work?’’ She said she didn’t know. She went on,
‘‘There is no work right now. If there is anything, he’ll get
back to you.’’
Vitelli also called Local 363 and was told by a secretary
that there was no employment right now. They had nowhere
to send him right now.
Vitelli testified that apprentice Lloyd Daniels was also laid
off when he was, as was Edward Smith who was loaned out
to the same employer as he was. He learned from Smith he
was going back to Gilston when the Correction Center work
was completed. Vitelli also noted that the other journeyman
working with him at the Gilston jobsite on October 17, Sal
Domingo, was not laid off and was still working for Gilston
at the time of the hearing. Vitelli claimed that he had 1
week’s seniority on Sal; they had been hired about the same
time.
As to the status of the work on his last job for Gilston,
Vitelli acknowledged that most of the major installation work
was just about done, but there was still a lot of work to be
done before completion.
Vitelli voted in the Board election held on October 18.
The facts relating to his appearance to vote at the Manhattan
polling place on that day present the other issue in this pro-
ceeding, as to whether Local 363 restrained and coerced em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act.
According to Vitelli, he arrived at the polling place at
about 7:50 p.m. Inside the building some distance away,
were Joseph Canizio, Local 363 president, and Paul
Rodriguez, a Local 363 representative. Vitelli went toward
an elevator and saw Canizio signal Rodriguez to go upstairs.
When Vitelli got off the elevator on the second floor,
Rodriguez ran off the escalator and called him to the side.
Rodriguez asked him what he was doing there. Vitelli replied
he was looking to vote. Rodriguez asked, ‘‘Didn’t you get
the letter from the Union, telling you not to vote.’’ Vitelli
said he had. Rodriguez said, ‘‘So, what are you doing. What
the hell are you doing here?’’ Vitelli responded that he was
here to vote because it was his right to vote. Rodriguez now
asked, ‘‘Well, what did your employer say about this?’’
Vitelli said, ‘‘Well, my employer said that if my conscience
so sees fit, then I should go vote. So, that’s why I’m here.’’
Rodriguez went on, ‘‘Well, how will your contractor feel if,
you know, how would your boss feel if he found out that
you are here to vote?’’ Vitelli now said, ‘‘You know, I really
don’t give a fuck about, you know, the employer right now.’’
Rodriguez responded, ‘‘Well, you’ll give a fuck tomorrow
when you are out of a job.’’ Vitelli cursed at him, turned his
back and started walking away. Rodriguez kept calling after
him. Vitelli walked inside the voting room, told the Board
Agent in charge that there was someone from Local 363 out-
side trying to stop him from voting. He was advised he could
make out a complaint in the morning. Vitelli’s ballot was
challenged by Local 363 on the grounds that his employer
was not part of the Association.
During his cross-examination by Gilston counsel, Vitelli
recalled calling Gilston to mail him his last paycheck when
he realized he wasn’t getting paid from Gilston Electric, but
was now working for P.T. & R. He acknowledged that he
was receiving basically the same pay for the same 35-hour
week while employed by P.T. & R. and that he had received
at Gilston, the prevailing rate for government work. He also
worked overtime at his option while employed by P.T. & R.
He did not call or visit the Gilston office after his initial call
to inquire about the availability of work on his layoff from
P.T. & R. Yet, his pretrial affidavit given to a Board agent
makes no mention of the phone call he placed to Gilston the
Monday following his layoff, from P.T. & R. He lives with
his father but did not receive a phone message from his fa-
ther that Gilston had called him.
Vitelli further recalled that Edward Smith had informed
him a few days before the P.T. & R. job ended that he was
going back to work for Gilston. Vitelli noted that Smith, a
journeyman electrician, had more seniority with Gilston then
he did and had not been a Local 3 supporter.
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Vitelli’s last job for Gilston had been performed for the
New York City Department of Transportation (D.O.T.) in
Manhattan underneath the Riverside Drive at 158th Street.
During both his cross-examination by Gilston counsel and
by Local 363 counsel, Vitelli repeated and reaffirmed the al-
leged coercive and threatening statements in the same or sub-
stantially similar language to that which he had used in at-
tributing them to Petrocelli. Gilston and Rodriguez during his
direct examination by General Counsel. In doing so, Vitelli
withstood satisfactorily and with his basic credibility intact,
the pressures of close and vigorous cross-examinations con-
ducted by both Respondent counsel. I further find that Vitelli
did make the one telephone call as he testified to the Gilston
shop upon his layoff at P.T. & R. to seek recall from layoff
at that time, although it was not recited in his affidavit.
Aside from finding Vitelli’s testimony to be generally credi-
ble, I rely on the fact that it would have been logical for
Vitelli to have sought a return to his former position after
having been farmed out to another firm during an apparent
slow period for Gilston.
C. The Respondents’ Defenses
1. Respondent Gilston
Marvin Gilston corroborated Vitelli as to the job to which
Vitelli had been assigned at the time of his layoff. At the
jobsite were six journeymen, apprentices and Al Petrocelli
was running the crew. Gilston swore that he personally laid
off Vitelli. He told Vitelli that the job was slowing down,
that he got him a job with these people, go, and ‘‘when the
job is finished, give me a call. I’m sure that we’ll be able
to find some room for you again.’’
A few days later, Vitelli called him to mail him his last
paycheck and thanked Gilston for getting him the job where
he was getting a lot of overtime.
Gilston testified that of the crew working at the Riverside
Drive D.O.T. jobsite, two employees, Vitelli and apprentice
Daniels, were laid off. But the week before, Gilston had laid
off three other employees, including journeyman Eddie
Smith, from another jobsite. He had also obtained a job for
Smith at P.T. & R. Smith had 7 or 8 years seniority with
Gilston. Rather than reassign Smith to another site where it
would take him a week or two to learn the job, he was laid
off. On his layoff, Gilston told him that when the job at P.T.
& R. closes (or is winding down), give him a call a day or
two before, and, he, Gilston, would find some place for
Smith. Gilston swore this is what he also told Vitelli.
Sometime after November, another job started up, Vitelli,
to Gilston’s knowledge, did not leave any message that he
had tried to contact him. Around mid-November, Eddie
Smith called him to say the P.T. & R. job was winding down
and asked if he, Gilston, had any room for him. Gilston said
yes and told him to come back. Smith begged off on starting
right away because he was exhausted from all the overtime
hours and asked to take a week or two vacation. Gilston then
called Vitelli and got his father. His father said his son was
on vacation or hunting some place and that when he came
back, he would get in touch with Gilston. According to
Gilston, at that time, in mid-November, he had room to put
some people back to work.
The Association’s collective-bargaining agreement with
Local 363, effective July 1, 1986 through June 30, 1986, by
which Gilston was bound as an Association member at the
time of its execution, contained no seniority clause, gen-
erally, and none governing order of layoff, or recall of em-
ployees, except for shop steward, who had top seniority for
both purposes in article 17. It did require the covered em-
ployer, in article 29, to notify Local 363 in writing within
48 hours of any layoff or voluntary termination, failing
which, the employer’s obligation to make union dues and
find contributions shall continue unabated. The agreement, in
article 27, also prohibited any employer to ‘‘farm out,’’
‘‘lend,’’ transfer or assign, temporarily or otherwise, any of
its employees to any other employer under any circumstance.
Gilston testified without contradiction that for purposes of
determining order of economic layoff, it was his practice to
apply seniority as determined by classification on a particular
job. That was why Eddie Smith was laid off before Vitelli.
He was least senior on a job which slowed down earlier than
Vitelli’s.
As to Vitelli’s seniority status on the D.O.T. job, Gilston
produced payroll records which established that, contrary to
Vitelli’s claim, Salvadore (Sal) Domingo, another journey-
man on the same job, had an earlier starting date than Vitelli,
having first worked on May 31, while Vitelli started on June
14. Domingo was also issued a pay check of $649.22 dated
June 7 for work performed prior to that date. Vitelli’s first
pay check is dated June 21, showing pay received of $415.81
for prior services. In the quarter March 1, 1989 through June
30, 1989, Domingo earned $4082.40 and Vitelli earned
$1314.74. Vitelli had been the least senior journeyman em-
ployed on the D.O.T. job.
Gilston explained that Petrocelli was a working foreman
and member of Local 363. He had no power to hire or fire
any worker. He had no supervisory powers. He was the fore-
man on the D.O.T. job, indeed, he had been in charge of the
crew as Gilston earlier noted. Petrocelli had been assigned a
mobile phone to call in for materials and communicate with
the office since the jobsite trailer which contained a tele-
phone was often locked. The company van he drove con-
tained power and other tools and was driven home by
Petrocelli at night as a convenience and to safeguard the
tools.
Gilston learned nothing about union sentiments of the men
from Petrocelli, did not ask him to question employees about
their preference and was unaware of Vitelli’s voting choice.
Vitelli, in fact, wore a Local 363 T-shirt all the time. Gilston
did speak to the men regarding the upcoming election as ear-
lier described. It was not a meeting he called, but rather
came about because all the men happened to be in the office
en masse the evening before payday to pick up their checks
early. As Gilston explained it, he told them there was a lot
of talk going back and forth about the election. He knew
Local 3 men were coming down to the job, and talking to
them. Gilston Electric was not part of the U.C.C.A organiza-
tion and had nothing to do with the vote. But, if they saw
clear to go down and vote, he would not stop them. Gilston
denied telling the employees he would not be happy if they
did vote.
Gilston recalled that in the period October to November,
he had four active jobs, including the D.O.T. job. All four
were then in the process of winding down with only finish-
ing work and punch lists remaining. Another job, at a D.O.T.
transportation garage in the Bronx, was just starting up as the
129GILSTON ELECTRICAL CONTRACTING CORP.
others were concluding, but a work crew had already been
assigned. It was not until February 1990 that a totally new
job was started, at Bellevue Hospital in Manhattan.
During his cross-examination, Gilston acknowledged that
while he usually had a ratio of six journeyman and two ap-
prentices assigned to most jobs, he was not sure of all of the
journeymen remaining on the D.O.T. site on October 17,
having probably reassigned at least two or more of them to
other jobsites sometime before that date. He was sure that
Domingo and Petrocelli were still on that jobsite on the date
in question.
Gilston also explained that Foreman Julius Santano was
actually in charge of all jobsites. Sometimes, he would take
care of two jobs, staying at each a half day, or at one a
whole workday. Then, in a surprising disclosure, somewhat
at variance with the foregoing, Gilston claimed that Santano
actually spent three-quarters of his time, 5 days a week at
the D.O.T. site. Even during this disclosure, Gilston changed
the three-quarters of his time, to 5, 6 hours, sometimes all
day, sometimes 3 hours. Later, Gilston acknowledged that
Petrocelli gave the work orders to the men, and, in the ab-
sence of Santano, gave out the work, made sure everything
was going right and was responsible for the work on the job.
Petrocelli also kept the records of the work performed on the
various jobs for purposes of preparing invoices for payment.
Petrocelli also usually was the one who was informed when
an employee reported late and was the foreman from whom
the journeymen requested permission to leave early when an
emergency arose during the day.
As to his layoff of Vitelli, Gilston at first recalled person-
ally informing Vitelli of his layoff in the office, with a lot
of people there. Then, almost immediately, Gilston could not
recall whether he spoke to Vitelli about the matter by phone,
or in the office (Tr. 127). But, although now vague about the
setting and location, Gilston insisted he was the one who told
Vitelli about the other job he had for him, with a lot of over-
time and Vitelli was happy about it.
Gilston swore he made the decision to lay off Vitelli when
he was able to find him another job, and that was on October
17. Since Vitelli worked as a team with the apprentice Dan-
iels, both were let go the same day.
Gilston denied that he had informed Petrocelli to tell the
workers to come up to the shop after work on the day he
spoke to them about the election.
2. Respondent—Local 363
Paul Rodriguez, business representative for Local 363, was
called to testify by the Respondent Union. Rodriguez denied
that Local 363 President Canizio was at the Manhattan vot-
ing site on October 18. Rodriguez arrived at the polling site
at 7 p.m. He recalled seeing Vitelli as he entered a little
later, wearing a Local 363 T-shirt and quickly approached
the elevator. Rodriguez took the escalator to the second floor
so he could speak to him. Rodriguez approached Vitelli
when he got off the elevator and asked, ‘‘Excuse me, are you
363 and ‘‘are you here to vote?’’ Vitelli said, ‘‘Yes.’’
Rodriguez said, ‘‘Did you receive a letter stating that it was
not necessary to vote?’’ At this point Vitelli said, ‘‘Fuck the
letter, my employer told me to come here and vote, and I
am going to vote.’’ At that point, two men wearing Local
3 jackets walked over and said, ‘‘Come on, Bobby, let’s go’’
and they accompanied him past the corridor to where the
election was being held.
There was some attempt, not entirely clear on the record,
to describe an individual who was standing near Vitelli at
some point during their conversation, perhaps wearing a
Local 3 jacket, as a ‘‘giant.’’ Rodriguez accompanied his de-
nial of making any threat to Vitelli with a description of his
own relative small stature, 5 feet, 6 inches tall and weighing
150 pounds.
In weighing Gilston’s and Rodriguez’ credibility against
that of Vitelli, Petrocelli never having taken the stand to tes-
tify, I am struck by the strong manner in which Vitelli basi-
cally stuck by his narrative on both his direct and vigorous
cross-examinations and also how his recital appears far more
credible when considered in light of its inherent probability
and the somewhat unlikely and farfetched explanations
Gilston and Rodriguez presented denying certain events or
statements attributed to them. Thus, Gilston’s explanation as
to why all of his employees were gathered at his office ‘‘en
masse’’ after closing one evening a few days before the elec-
tion is unconvincing, particularly absent a showing that all
employees would regularly make an extra trip back to the of-
fice after a full day’s work to collect pay they could receive
the next day at their worksites. Vitelli’s explanation for his
appearance at the office is far more tenable, that he was di-
rected by Petrocelli, given the proximity to the election and
Gilston’s evident concern in making his point with the work-
ers that he was not (or no longer) part of the Association and
they should not vote. It was natural for Gilston to follow his
acknowledgment that an employee’s conscience could dictate
his decision to participate or not with the personal comment
that if the employee did, he, Gilston, would not he happy
with that result. I credit Vitelli’s testimony on this point.
I also credit Vitelli as against Rodriguez’ denial as to the
full extent of the conversation he swore he held with
Rodriguez minutes before he entered the polling area to vote
on the evening of October 18. Rodriguez’ partially coherent
explanation that the size of Vitelli’s apparent companion in-
hibited him from any more emphatic efforts to stop Vitelli
from voting is not credible. The manner and confrontational
tone Rodriguez admitted using in stopping and questioning
Vitelli in implementation of the Union’s no-voting policy on
the last leg of Vitelli’s trip to the polling area is strongly
suggestive that when the dialogue became heated and Vitelli
sought to disengage himself, Rodriguez turned to making
graphic, what he, as Local 363 business representative, un-
derstood would be the employer’s reaction to Vitelli’s voting
the following day. Vitelli is credited that the conversation
proceeded to its conclusion as he described it.
As earlier noted, Petrocelli was not called by Gilston to
rebut any of the comments Vitelli attributed to him. I find
Vitelli’s straightforward account convincing that on the two
occasions he enumerated, Petrocelli responded to his inten-
tion to vote in the election with a comment, at first, that he
was putting his job on the line, and then, later, he would
surely get fired. I also credit Vitelli that, as he related, it was
Petrocelli, and not Gilston, who informed him at the end of
the workday on October 17, that he would be reporting to
another jobsite on a loan out for 1 week and that Gilston was
not happy with production on the job. Gilston’s recollection
of the setting of the conversation he may have had with
Vitelli about his reassigning him to another job with lots of
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
overtime was inconsistent, at first describing a conversation
in his office with a lot of people there and immediately
thereafter failing to recall whether Vitelli was there in person
at all. Gilston may have confused this asserted conversation
with another, some days later, to which he had earlier testi-
fied, when Vitelli telephoned him to request his last day’s
pay for work performed while on Gilston’s payroll.
Analysis and Conclusions
A threshold issue regarding the alleged coercive nature of
the statements Petrocelli made to Vitelli is raised by virtue
of Respondent Gilston’s defense that Petrocelli was not a su-
pervisor under the Act. In the course of attempting to dispute
Petrocelli’s status, Gilston acknowledged that Petrocelli ran
a crew at the jobsite where Vitelli was employed. Gilston’s
attempts to portray Foreman Santano as being present three-
quarters of his work time at the D.O.T. site and to diminish
Petrocelli’s status are not credited, given his earlier and later
varying accounts of Santano’s work schedule, and Vitelli’s
unrebutted account of Petrocelli’s sole and direct supervision
of the site and the men assigned there.
Vitelli’s credited testimony portrays Petrocelli’s actual
conduct in running the D.O.T. jobsite for Gilston, as exercis-
ing authority to assign and review work, require reinstallation
of unsatisfactory work, discipline late arriving employees by
sending them home, approve employee emergency requests
to leave work early, and order more production and efficient
work efforts. The execution of these functions, coupled with
Vitelli’s credited testimony that Gilston told him Petrocelli
was in charge and his orders should be followed, Vitelli’s
own acknowledgement of his supervisory status as well as
his possession of the apparatus of authority of a portable
phone and company van and lack of possession or use of the
tools of the journeyman’s trade, leads me to conclude that
Petrocelli exercised the indicia of authority to assign, dis-
cipline, and responsibly direct employees in the course of
which he was required to use independent judgment, and
thus met the requirements of a supervisor under Section
2(11) of the Act. Petrocelli’s layoff of Vitelli on October 17
and termination of apprentice Daniels on the same date but-
tress this conclusion. I also conclude that by virtue of the ap-
parent authority conferred upon him by Gilston, employers
would reasonably conclude that Petrocelli was acting in a su-
pervisory capacity and was representing Gilston in his deal-
ings with the employees both at the job and in reporting his
understandings of Gilston’s negative reactions to their asso-
ciation with Local 3 or their expression of intent to vote in
the Board conducted election.
Turning to the substantive allegations of violation, I first
deal with Petrocelli’s remarks. It is apparent, giving his
standing as a Gilston statutory supervisor or as an employer
clothed with the apparent authority to act as one, that his
comments to Vitelli made in reaction to Vitelli’s expressed
intention to vote in the election, were binding on Gilston,
and, indeed, represented the Respondent employer’s attitude.
As explained by Vitelli, Petrocelli’s two statements followed
not only his announcement of a desire to vote but a disclo-
sure of his support for Local 3. Vitelli was the only em-
ployee to make such open disclosures, although Daniels
joined him in announcing that he, too, also intended to vote.
Even without making known his support for Local 3, it was
fairly evident that the other employees, including Petrocelli,
a member of Local 363, would take Vitelli’s and Daniels’ in-
tention to vote as not only contrary to Local 363 policy but
as an expression of opposition to Local 363 in the upcoming
election.
In telling Vitelli in front of other employees on break that
in voting he was putting his job on the line, Petrocelli was
informing Vitelli and all other employees present that his job
was at risk and could be terminated for exercising this Sec-
tion 7 right. Such an utterance constitutes a threat in viola-
tion of the Act. Then, later, in response to Vitelli’s open
mulling over of his interest in voting, Petrocelli confirmed
that Company knowledge of his act of defiance of Local 363
and Gilston policy would surely result in his dismissal,
Petrocelli was now making explicit what he had earlier im-
plied. This utterance, as well, constitutes a threat in violation
of Section 8(a)(1) of the Act.
The circumstances surrounding Gilston’s own expressions
of opposition to employee participation in the election which
he made clear to assembled employees ordered back to the
office one evening after work a few days before the election
and the words he used, made clear the depth of Gilston’s
aversion to the election process in which Local 3 was seek-
ing to supplant Local 363 as bargaining representative in the
multiemployer Association-wide unit. As a participant in the
multiemployer effort to withdraw from the Association ap-
parently designed to forestall the election itself, Gilston had
a stake in seeing to it that his workers stayed away from the
polls. While professing a recognition of employee conscience
in the matter, Gilston’s final comment, expressing unhappi-
ness with anyone who had the temerity to actually defy the
Local 363—multiemployer uniform opposition to participa-
tion in the election process, brought home to employees, the
risk they undertook in exercising their right of franchise.
Even though the result of failing to assuage Gilston’s unhap-
piness was pointedly left unstated, it was reasonable for the
employees to conclude that if they voted, they were vulner-
able and subject to consequences which could adversely af-
fect their job tenure and status. Petrocelli’s earlier statement
made to Vitelli in the hearing of employees in the breakroom
made that evident. That the highest Gilston managerial au-
thority was making this veiled threat at a required meeting
after work hours in the management office, reinforces my
conclusion. Gilston’s expression of unhappiness constitutes a
threat of unspecified reprisals to employees if they voted in
the election in violation of Section 8(a)(1) of the Act.
As to the Local 363 representative’s statements, when
Rodriguez responded to Vitelli’s expression of lack of con-
cern with Gilston’s attitude toward his voting, he was, in ef-
fect, pointing out, as Local 363 business representative, that
Vitelli would be out of a job if he continued to defy both
the union and his employer by voting. Local 363’s agent was
threatening Vitelli that it had the motive and ability as exclu-
sive bargaining representative to bring pressure to bear on a
willing employer to see that Vitelli would be discharged. As
Rodriguez had the apparent authority to implement his threat,
his statement thus constituted a direct form of coercion and
interference with Vitelli’s exercise of an important Section 7
right which impacted on his continued status as an employee.
The Union thus violated Section 8(b)(1)(A) of the Act.
I turn now to the issue of Vitelli’s alleged discriminatory
layoff on October 17.
131GILSTON ELECTRICAL CONTRACTING CORP.
Gilston’s strong motivation to punish and retaliate against
those employees who made known their right to cast a ballot
in the scheduled election has been established on this record,
both through Petrocelli’s threats to Vitelli and Gilston’s own
verbal warning to employees uttered at the meeting he had
called of employees solely to make clear his company’s non-
involvement in the election proceeding. I may also infer that
Gilston was aware of Vitelli’s outspoken support of Local 3
from Petrocelli and that Petrocelli’s own threats would not
have been made without the prior knowledge or approval of
Gilston or at least without Petrocelli’s understanding of
Gilston’s hostility to Local 3 supporters. Thus, Gilston,
armed with the knowledge of Vitelli’s intentions, had both
the motive and opportunity to follow through on the out-
standing threats.
In his handling of Vitelli’s separation, Gilston further re-
vealed his discriminatory motivation. Contrary to his dealings
with Smith, personally informing Smith of the outside P.T.
& R. job to which he was to be assigned and soliciting his
return to employment on completion of work there, in the
case of Vitelli, Gilston chose to have Petrocelli inform Vitelli
of his ‘‘loan out’’ without informing him he was going onto
another payroll and without inviting a later return, and ac-
companied by words of dissatisfaction with the production
accomplished on the D.O.T. job. Gilston’s failure to mention
or rely on this alleged shortcoming in performance presents
a significant inconsistency between his version of the factors
resulting in the layoff and those which Vitelli credibly attrib-
uted to Petrocelli. Furthermore, in presenting conflicting tes-
timony between Respondent’s supervisor and president on a
very central fact, as to who informed Vitelli of his separa-
tion, Gilston has only served to strengthen the case for viola-
tion.
It is noteworthy also that the only other employee let go
on October 17 was Lloyd Daniel, the only other employee
who had publicly announced his intention to vote. While
there is no complaint allegation made on Daniel’s behalf, I
may weigh the facts relating to his separation as they may
reflect on the Respondent employer’s motivation. These facts
show that the only two employees separated on October 17
were the only Gilston employees who had publicly vowed to
vote in the election shunned by Local 363 and Gilston.
The timing of the removal of these two employees from
the payroll is also significant. It was accomplished on the
eve of the election at a time when it would have the most
chilling effect on the other employees as they pondered
whether to participate in an election which both their em-
ployer and Union were combining—even conspiring—to
thwart.
At the time of the two layoffs, Gilston claimed the slow-
ing down of the D.O.T. project as the prime factor in his de-
cision and his finding of another job for Vitelli as determin-
ing its scheduling. Yet, according to Gilston, work had
slowed down for some time before the layoff and business
did not pick up until after the new year. Respondent pro-
duced no records showing a need for reduction of the work
force on the very date in question. Furthermore, Gilston was
hazy about the number of journeymen remaining on the job,
originally listing six, with two apprentices, and later having
recalled two or more journeymen had been earlier reassigned
to other projects. While Smith’s earlier layoff may serve to
strengthen Gilston’s contention that seniority on the particu-
lar job played a role in layoff selection, the particular timing
of Vitelli’s, coming as it did on the eve of the election, re-
mains unexplained on this record. As earlier noted, the dis-
parate treatment accorded Vitelli at the time of his layoff
strengthens the conclusion that more was at stake here than
locating another contractor who could employ Vitelli in the
short term. Of course, by relocating rather than discharging
Vitelli, Gilston was reducing the probability that Vitelli
would complain or seek to make a Federal case out of his
treatment.
In later contacting Vitelli’s father, Gilston has not shown
that any work was available to Vitelli at the time—in mid-
November—other than a short-term assignment pending
Smith’s return. Neither by his testimony has Gilston dem-
onstrated that the telephone call constitutes an offer of any
employment. Gilston merely asked his father to have Vitelli
contact him. As an attempt to show a valid offer of reinstate-
ment which would serve to cut off further remedial relief to
Vitelli, the evidence of this contact is ineffective.
It may be that Vitelli’s credited telephone call to Gilston
on his layoff from P.T. & R. was insufficient to make
Gilston personally aware of his current availability and desire
to return, or that Gilston never received the message of
Vitelli’s availability, yet, it was Gilston who set the discrimi-
natory conduct in motion by laying off Vitelli in the manner
and at the time he did and it was Gilston’s responsibility, if
he sought to make a valid offer of reinstatement, to have
complied with the Board’s requirements, under the cir-
cumstances, by forwarding an offer in writing directly to
Vitelli. This, he never did. Under all of the circumstances,
including the fact that Gilston’s attempt to contact Vitelli ap-
pears to have succeeded Vitelli’s filing of the instant charge
on November 15, I conclude that Gilston’s inadequate at-
tempt to contact Vitelli was an invalid offer of recall or rein-
statement, clearly ineffective to toll Gilston’s backpay liabil-
ity. Gilston’s contact with Vitelli’s father was neither ‘‘firm,
clear [or] unconditional,’’ Lipman Bros., 164 NLRB 850
(1967), see also Consolidated Freightways, 290 NLRB 771,
772 (1988), and thus, apart from Gilston’s failure to commu-
nicate directly with Vitelli, was clearly invalid in this re-
spect.
I conclude that General Counsel has shown by a prepon-
derance of the evidence, that Gilston, in laying off Vitelli on
October 17, and thereafter in refusing to recall, or offer to
recall him to his former position, was motivated by anti-
Local 3 animus. I further conclude that Respondent Gilston
has failed to prove, by a preponderance of the evidence, that
Vitelli would have been laid off on October 17 even in the
absence of his union activities. See Transportation Manage-
ment, 462 U.S. 393, 399 (1983).
CONCLUSIONS OF LAW
1. Gilston Electrical Contracting Corporation, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Industrial and Allied Trades Workers Local 363, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO, and Local Union
No. 3, International Brotherhood of Electrical Workers,
AFL–CIO, are each a labor organization within the meaning
of Section 2(5) of the Act.
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
3 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
3. By laying off its employee Robert Vitelli, on or about
October 17, 1989, because he joined, supported, or assisted
Local 3 and engaged in concerted activities for the purpose
of collective bargaining or other mutual aid and/or protec-
tion, and in order to discourage other employees from engag-
ing in such activities or other concerted activities for the pur-
pose of collective bargaining or other mutual aid and/or pro-
tection, Respondent Gilston has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By threatening its employees with discharge and other
unspecified reprisals if they voted in a Board-conducted elec-
tion for certification of representative, Respondent Gilston
has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed to them in Section 7 of
the Act and thereby engaged in and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. At all times material, Respondent Local 363 has been
the recognized collective-bargaining representative of certain
of Respondent Gilston’s employees by virtue of Respondent
Gilston’s membership in the United Electrical Contractors
Association a/k/a United Construction Contractors Associa-
tion, which was authorized by its members to act as collec-
tive-bargaining representative on their behalf in negotiating
and administering collective-bargaining agreements with var-
ious labor organizations, including Local 363.
6. By threatening its members that it would encourage
their discharge by their employer if they voted in a Board-
conducted election for certification of representative, Local
363 has restrained and coerced employees in the exercise of
the rights guaranteed to them in Section 7 of the Act and
thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found that Respondents Gilston and Local 363
have violated Section 8(a)(1) and (3), and Section 8(b)(1)(A)
of the Act, respectively, I shall recommend that they each
cease and desist therefrom, and take certain affirmative ac-
tions necessary to effectuate the purposes of the Act. I shall
recommend that Respondent Gilston be ordered to reinstate
employee Robert. Vitelli to his former position, or, if no
longer available, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and privileges
previously enjoyed, and make him whole for any losses of
pay or other benefits suffered by him, as a result of Re-
spondent Gilston’s discrimination against him. Backpay shall
be computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest thereon as computed
in New Horizons for the Retarded, 283 NLRB 1172 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
A. The Respondent Gilston Electrical Contracting Corpora-
tion, New York, New York, its officers, successors, and as-
signs, shall
1. Cease and desist from
(a) Laying off, discharging, or otherwise discriminating
against employees with respect to their hire or tenure of em-
ployment or any term or condition of employment because
they joined, supported or assisted Local Union No. 3, Inter-
national Brotherhood of Electrical Workers, AFL–CIO, or
any other labor organization or because they engaged in con-
certed activities for the purpose of collective bargaining or
other mutual aid and/or protection.
(b) Threatening its employees with discharge and other un-
specified reprisals if they voted in a Board conducted elec-
tion for certification of representative.
(c) In any like or related manner interfering with, restrain-
ing or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Robert Vitelli immediate and full reinstate-
ment to his former position or, if that position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges previously en-
joyed, and make him whole for any losses of earnings or
other benefits he may have suffered by reason of his unlaw-
ful layoff in the manner set forth in the remedy section of
this 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 New York, New York facility copies of the
attached notices marked ‘‘Appendix A and Appendix B.’’3
Copies of Appendix A, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent
Employer’s authorized representative, and copies of Appen-
dix B, after being duly signed by an authorized representa-
tive of the Respondent Union, shall be posted by the Re-
spondent Employer immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent Employer
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.
B. The Respondent, International and Allied Trades Work-
ers, Local 363, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
133GILSTON ELECTRICAL CONTRACTING CORP.
4 See fn. 3, above.
(a) Threatening its members that it would encourage their
discharge by their employer if they voted in a Board con-
ducted election for certification of representative.
(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) Post at its business office, meeting halls or other places
where it customarily posts notices, copies of the attached no-
tice marked ‘‘Appendix B.’’4 Copies of said notices, on
forms provided by the Regional director for Region 29, shall
after duly signed by an authorized representative of the Re-
spondent Union, be posted by the Respondent Union imme-
diately upon receipt and maintained for 60 consecutive days
thereafter. Additional copies of Appendix B shall be duly
signed by an authorized representative of Respondent Union
and furnished to the said Regional Director for transmission
to the Respondent Employer for posting by the Respondent
Employer in accordance with the Order directed to the Re-
spondent Employer above.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.