Jeffs Electric, LLC

National Labor Relations Board - Administrative Judge Opinions

Sep 17, 2007

34-CA-011371 (N.L.R.B. Sep. 17, 2007)

JD(NY)-41-07
Brooklyn, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
JEFFS ELECTRIC, LLC
and Case Nos. 34-CA-11371
34-CA-11398
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 35, AFL-CIO
Terri A. Craig, Esq., Hartford, CT, for the General Counsel.
Robert L. Skelley, Esq., Danielson, CT, for the Respondent.
Thomas W. Meiklejohn, Esq. (Livingston, Adler, Pulda,
Meiklejohn & Kelly, P.C.), Hartford, CT, for the Charging Party.
SUPPLEMENTAL DECISION
STEVEN DAVIS, Administrative Law Judge: On May 12, 2006, Administrative Law
Judge Joel P. Biblowitz issued a decision in which he recommended, in material part, that Jeffs
Electric, LLC (Respondent) offer full reinstatement to James Bramanti, Benjamin Holden,
Christopher Lacy, Harry Richardson, Joshua Solomonson and Stephen Zajac to their former
jobs, or if those jobs no longer exist, to substantially equivalent positions. It was also ordered
that the Respondent make them whole for any loss of earnings and other benefits suffered as a
result of their discharges, less any interim earnings. JD(NY)-21-06.
The Order also required the Respondent to preserve and, within 14 days of a request,
provide 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 the Order.
No exceptions were filed to Judge Biblowitz’s recommended Order, and on July 10,
2006, the Board issued its Order adopting his findings and conclusions and requiring the
Respondent and its officers, agents, successors and assigns to take the actions set forth in his
recommended Order. On November 30, 2006, the Second Circuit Court of Appeals enforced the
Board’s Order. The Court also issued a broad protective restraining order against the
Respondent enjoining it essentially from disbursing any funds unless security of $113,063.98 is
deposited with the Court. It was also directed that until the Respondent provides such security,
any company owing money to the Respondent must deposit such funds with the Court. The
Court’s Order states that it was “issued as mandate January 23, 2007.”
On March 30, 2007, the Regional Director issued a Compliance Specification which
stated that the backpay period for the six discriminatees begins on December 27, 2005, the date
of their termination, and ends when the Respondent offers them reinstatement. The total
backpay claimed was $237,963 which was calculated through January 31, 2007, but with further
backpay accruing until the Respondent offered reinstatement to the six men.
Thereafter, on June 13, 2007, the Regional Director issued a Notice of Intent to Amend
the Specification, and subsequently issued an Amended Compliance Specification. The
Amended Specification stated that the backpay period for each discriminatee ran from
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December 27, 2005 to May 26, 2006, the date that electrical work on the Dick’s Sporting Goods
project ended. The reduced total backpay claimed was $104,266. At the hearing, the
Respondent stated that it believed that the backpay period ended prior to May 26, 2006 but had
no other objection to the Amended Specification.
On April 23, 2007, the Respondent submitted a Response to the Specification, which will
be discussed below. On June 25, 2007, a hearing was held before me in Hartford, CT.1 On the
entire record, including my observation of the demeanor of the witnesses, and after considering
the brief filed by the General Counsel, I make the following:
Findings of Fact
I. The Backpay Period
A. The General Counsel’s Evidence
The Amended Specification2 sets forth that the backpay period begins on December 27,
2005, the date the six employees were unlawfully terminated, and ends on May 26, 2006, the
date that the job on which they were working, the Dick’s Sporting Goods project, ended.
Nestor Diaz, the compliance officer for the Regional Office, based the May 26, 2006 date
on a letter he received from Bowdoin Construction Corp., the general contractor on the Dick’s
project. The letter stated that after Bowdoin terminated the Respondent’s contract as of
December 30, 2005, a replacement contractor, Professional Electric, performed work on the
project until the week ending June 3, 2006. Diaz stated that in an effort to be fair to the
Respondent, he chose the week prior to June 3 as the date that the Respondent would have
finished its work at the jobsite. Thus, May 26 was selected. Indeed, Henry Jeffs, Jr., (Jeffs) the
Respondent’s owner testified that the Respondent’s projected finish date was in late May with
two to three weeks thereafter of setup work, and further testified that he believed that
Professional Electric ended its work in late May.
John Lurate, a Union official who is its main organizer, testified that he became aware
that the Respondent was beginning a large electrical installation job at Dick’s Sporting Goods in
Manchester, Connecticut. He believed that because of the size of the project and the few
workers then employed by the Respondent, it would need a larger workforce. Lurate therefore
saw a good opportunity to have Union members apply and be hired by the Respondent with the
goal of organizing the shop from within as covert organizers, commonly called “salts.” He
expected the campaign to last at least six months.
Lurate asked Union member Benjamin Holden to apply for work with the Respondent.
Holden applied and was hired on July 25, 2005. He first worked at other projects and in
October, he was transferred to work at the Dick’s job. Holden reported to Lurate that he believed
that the Respondent would have to hire more workers to complete the job. Lurate asked six

1 Following the close of the hearing I officially received G.C. Exhibit 19 in evidence. The
court reporting service notified the parties and I that G.C. Exhibit 19 had not been officially
received in evidence. After a review of the record I advised all parties that inasmuch as the
exhibit had been offered in evidence to which there was no objection, I had inadvertently failed
to state that it was received in evidence and accordingly received it in evidence.
2 All references hereafter to the Specification shall refer to the Amended Specification.
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other Union members to apply for work and they were also hired.3 Their dates of hire are as
follows: Lacy - November 7; Bellomo - November 14; Bramanti - December 5; Solomonson –
December 12; Richardson and Zajac - December 19.4
Lurate testified that there was severe unemployment among Union members in
December, 2005. Of the total Union membership of 570, nearly 405 were out of work – some
not having worked for 12 to 18 months. Lurate chose the Union members he referred to work at
the Respondent from those in the bottom half of the Union’s out-of-work list who could not
expect to be referred to Union contractors for at least six months. Employee Holden was in the
bottom half on the out-of-work list, and estimated that he would not be referred to a Union
contractor for about one year. Lurate asked each of the seven employees whether they were
interested in organizing a non-union contractor, and whether they were willing to stay for the
duration of the campaign, whether by recognition or election with the eventual goal of obtaining
a signed contract. Lurate stated that if the organizer did not agree to those conditions he would
not be asked to apply for work. Each worker agreed to the conditions and in fact they remained
employed until they were discharged. Following their discharges, four of the employees
obtained jobs with other non-union contractors the Union sought to organize.
Lurate testified that the Union has used the same strategy of having organizers obtain
work at non-union contractors in other organizing campaigns it has conducted. For example, the
Union succeeded in having four covert organizers hired at Scobar Electrical Contractors during
the period January through October, 2006. Following his discharge by the Respondent, Holden
worked at Scobar from May, 2006 until the campaign was abandoned in October due to lack of
interest in organization by the workforce.
On December 21, 2005, Lurate held a meeting with the seven organizers at which they
signed authorization cards in behalf of the Union. He told them that he expected them to remain
employed until the end of the campaign and they agreed. Lurate told them that of Respondent’s
15 employees, he believed that since it would be found that supervisor Chris Lord and the two
sons of the owner would be ineligible to vote, more than 50% of the eligible employees would
vote for the Union in an election. On December 27, Holden presented a letter to the Respondent
which named the six employees as organizers. They were fired that day. On March 24, 2006,
the Union filed a petition with the Board, an election was held and on August 21, 2006, the
Union was certified as the exclusive collective-bargaining representative of the employees of the
Respondent.
B. The Respondent’s Arguments
The Respondent asserts that it was terminated from the Dick’s project through no fault or
action of its own on December 30, 2005 and therefore it would not have continued to work on
the project through May 26, 2006.
Jeffs testified that on December 27, general contractor Bowdoin Construction Corp.
directed the Respondent’s supervisor, Chris Lord, to remove the six employees from the jobsite
because he did not want to have any “labor problems” on the jobsite. Lord then fired the
workers. Jeffs testified that he had no advance warning of Bowdoin’s order and no further

3 The Union succeeded in having seven organizers hired by the Respondent. Only the six
employees named above are the subject of this proceeding since the seventh, Dave Bellomo,
remained covert and was not unlawfully discharged.
4 These dates are from the Respondent’s records.
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details were provided.
I cannot credit this testimony since it is contrary to the Respondent’s position at the
underlying trial that it fired the six employees for cause, and it is also contrary to Judge
Biblowitz’s unappealed finding that the Respondent fired the six workers on December 27
immediately after they presented a letter from the Union to Lord naming them as union
organizers. Matters decided in the Board’s decision underlying this compliance proceeding and
enforced by a United States court of appeals are settled matters and may not be relitigated
here. Transport Service Co, 314 NLRB 458, 459 (1994). In the underlying case, the Respondent
did not assert a defense that Bowdoin directed the discharge of the workers. Rather, it argued
that they were fired for cause by the Respondent because they failed to provide certain
documentation. One day after their discharges, Bowdoin sent a letter to the Respondent
terminating its contract effective December 30 because the Respondent violated its contract by
failing to “provide sufficient number of qualified workers to complete the project.” The
Respondent’s contract provided that if the contractor does not “supply a sufficient number of
properly skilled employees….” Its contract may be terminated.
Clearly, the Respondent’s contract was terminated because it reduced its employee
complement of 15 to 7 and, in Bowdoin’s opinion, could not complete the project with so few
workers. It is obvious that but for the Respondent’s unlawful conduct in discharging the six
workers it would have continued to perform pursuant to its contract and would have completed
its work at the Dick’s project on about May 26, 2006.
There was much evidence concerning whether the Respondent performed work at other
projects after December 30, 2005. Counsel for the General Counsel claims only that the
Respondent would have continued to work at the Dick’s project until May 26, 2006 and that the
six discriminatees would have continued to work there until the end of that job. She does not
claim that the Respondent would have worked at other projects after May 26, or that the six
discriminatees would have been transferred to such jobs following the conclusion of the Dick’s
job. Accordingly, such evidence is irrelevant and need not be discussed.
To the extent that the Respondent claims that it cannot currently afford to pay its
backpay liability because, as set forth in its Answer to the Specification, it has no employees, no
new contracts, and no income from work performed since December 27, 2005, that assertion is
not a defense to this proceeding. “It is well settled that the issue in a backpay proceeding is the
amount due and not a respondent’s ability to pay.” Fayard Moving & Transportation, 300 NLRB
209, 210 (1990).
Moreover, in contradicting its Answer, according to Jeffs’ testimony, the Respondent
continued work on projects after December 27, 2005 for which it had contracts prior to that date.
For example, it began work at the Brooklyn Senior Center and the New London Public Library in
January, 2006 and the Ribicoff Office Building in March, 2006, and worked on those jobs
through July, 2006. On such jobs, the Respondent’s employees included Jeffs, his two sons, his
brother, and John Swinyer. Checks were issued between June and November, 2006 for the
work it performed to the Respondent individually or to the Respondent and a supplier of
materials pursuant to a joint-check agreement. To the extent that the Respondent claims that it
is unable to pay the backpay amount because funds to which it was entitled were directed to be
deposited with the court by the Court of Appeals Order, that Order was brought about because
of the Respondent’s wrongdoing in order to ensure that its backpay liability would be paid. It
cannot now be heard to complain about that Order.
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II. The Backpay Formula
Nestor Diaz, the Regional Office’s compliance officer, sent a letter dated July 19, 2006 to
the Respondent requesting “payroll records, social security payment records, timecards and
other personnel records” in order to determine the amount of backpay due. The only response
to the request for records came in a voicemail message from Jeffs saying that “you sent me
orders. I’m telling you right now verbally NO, plain and simple No. You as the government will
not stick your nose into my business. You cannot assert your jurisdiction on my company
period. The answer is no, never. I will close the fucking company. The answer is no. You can
take these notices and hang them on your walls, sir.”5
Needless to say, Diaz was left to his own resources in calculating the proper amount of
backpay. He discovered a list of employees and their base pay rates as of December 17, 2005,
prepared by the Respondent and received in evidence in a prior case. He used the information
on that list for their base rates, and asked the six discriminatees how many regular and overtime
hours they worked per week. According to the list, Solomonson earned $21.00 per hour,
Bramanti, Lacy, and Zajac earned $22.00, Holden earned $23.00 and Richardson earned
$24.00.
Diaz was informed by the discriminatees that they worked an average of 40 regular
hours per week and 10 hours of overtime per week, and that they expected to work at least to
the end of the Dick’s project. In this respect, Holden testified that he worked 10 hours per day, 5
days per week until his discharge. He further stated that supervisor Chris Lord and perhaps
Jeffs told him that in order to meet certain deadlines to complete the job the workers would have
to continue working overtime. Jeffs conceded that, in general, work was available so that
employees could work 10 hours per day 5 days per week if they wished. Indeed, Jeffs testified
that the Dick’s job would be completed, according to the schedule “as long as we maintained
the extended work hours.” (emphasis supplied) Diaz determined, and Jeffs conceded that the
overtime rate was based on 1½ times the base rate.
The formula used in determining what each discriminatee would have received during
his backpay period was the discriminatee’s weekly wage times the number of weeks in each
calendar quarter of the discriminatee’s backpay period. Each discriminatee’s base or regular
weekly wage was determined by multiplying the discriminatee’s hourly rate of pay by 40 hours.
The overtime wage was determined by multiplying the number of overtime hours worked per
week by each discriminate by 1½ times the discriminatee’s regular hourly rate of pay. Diaz
computed the backpay due based on a 10 hour workday, 5 days per week for each
discriminatee.
A timesheet offered by the Respondent and received in evidence which shows that for
the week ending December 24, 2005, not all employees worked 10 hours per day that week
does not detract from Diaz’s figures. On December 24, Christmas Eve, employees who were
employed for more than 60 days, such as Holden, did not work that day but received holiday
pay instead. Those who were employed for less than 60 days did not receive such pay and
could work 10 hours that day if they chose. In fact, Bellomo worked 10 hours per day, 5 days

5 Jeffs' testimony that he told Diaz to contact the Respondent’s accountant for any
information he needed is not credited. Diaz denied being given such an instruction and Jeffs’
response to the Specification said that he was unable to obtain information from his accountant
due to unpaid bills.
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that week. The offer of one weekly timesheet, and that for a holiday week, is not representative
of the three months that employees worked on the project. Moreover, the Respondent failed and
refused to provide any of the requested records to the Regional Office which could prove its
claim that employees did not work 10 hours per day, 5 days per week. Further, inasmuch as the
Respondent refused to produce the requested time records, no reliance may be placed on the
timesheet presented. Bannon Mills, Inc., 146 NLRB 611, 633-634 (1964).6
Analysis and Conclusions
I. The Backpay Formula
The backpay formula used in the Specification estimates what the discriminatees would
have earned during the backpay period by projecting their base pay prior to their terminations
and adding their projected overtime hours.
As set forth above, compliance officer Diaz did not have the benefit of precise records
since the Respondent refused to produce any records of its employees’ earnings or time.
Accordingly, Diaz reasonably used a list of the base pay prepared by the Respondent
and introduced in evidence in the underlying case. He then properly asked each of the six
discriminatees for the amount of regular and overtime hours worked. Their unanimous response
that they worked ten hours per day, five days per week which included two hours of overtime
each day, was not credibly contradicted by the Respondent, but rather was consistent with Jeffs'
testimony that such work was available and that they indeed worked “extended hours.”
Using those figures, Diaz then computed the gross backpay from December 27, 2005
through May 26, 2006 when the Respondent’s replacement contractor completed its work at the
Dick’s project.
In the absence of payroll records or of written documentation
given to the employees, their recollection of their earnings during
their employment is the most reliable, and the only reliable method
of determining what they earned while employed. The compliance
officer reasonably assumed that their earnings during the backpay
period would have been the same as their earnings prior to their
discharge. Met Food, 337 NLRB 109, 110 (2001); Bridgeway
Oldsmobile, 294 NLRB 858, 860 (1989).
The standards in determining the appropriateness of a backpay formula are set forth in
Performance Friction Corp., 335 NLRB 1117, 1117 (2001).
Both the Board and the courts have applied a broad standard of
reasonableness in approving numerous methods of calculating
gross backpay. Any formula which approximates what the
discriminatees would have earned had they not been
discriminated against is acceptable if not unreasonable or arbitrary
in the circumstances. The Board is required only to adopt a

6 The General Counsel correctly argues that an adverse inference should be drawn that the
timesheets not produced by the Respondent would have supported a finding that the employees
worked 10 hours per day, 5 days per week. Filene’s Basement Store, 299 NLRB 13, 204 (1990).
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formula which will give a close approximation of the amount due; it
need not find the exact amount due. (citations omitted)
Where there are uncertainties, or ambiguities, they are to be resolved in favor of the
wronged party, rather than the wrongdoer. Weldun International, 340 NLRB 666, 672 (2003).
It has been held that a backpay formula such as the one used here, which projects the
discriminatees’ earnings during the backpay period “based on the discriminatees’
prediscrimination earnings is ‘both conventional and noncontroversial.’ The use of this type of
formula should not be departed from absent special circumstances.” Weldun, above, at 672.
The basis for the backpay period of December 27, 2005 through May 26, 2006, is also
reasonably based. The six employees were unlawfully discharged on December 27. The
evidence is clear that had they not been discharged the Respondent would have continued its
work on the Dick’s project until its conclusion on May 26, 2006.
It is quite clear that the Respondent’s action in terminating the six men caused Bowdoin
to terminate its contract. Since the Respondent was working pursuant to a schedule which could
only be completed on time if its employees worked “extended hours” the summary dismissal of
nearly half its workforce necessarily caused Bowdoin to believe that it had an insufficient
number of workers to complete its contract. If the workers were not unlawfully dismissed there is
no question that the Respondent’s and the employees’ work on the project would have
continued uninterrupted as it had in the past. Accordingly, it is clear that the Respondent’s
removal from the project was caused by its unlawful actions in firing its workers and not, as
testified by Jeffs, because Bowdoin demanded their discharge. Weldun, above, at 673.
II. The General Counsel’s Burden Under Oil Capitol Sheet Metal
The Board has traditionally applied a rebuttable presumption that the backpay period
should continue indefinitely from the date of the discrimination until a valid offer of reinstatement
has been made. In Oil Capitol Sheet Metal, 349 NLRB No. 118, (2007), the Board held that the
presumption should be changed in cases such as this, involving union organizers or “salts” who
obtained jobs for the purpose of organizing their employer. 7 The Board reasoned that in such
cases the employee may not seek employment for an indefinite duration, but rather remain with
his employer only until the union’s “defined objectives are achieved or abandoned.”8
Accordingly, the Board placed the burden on the General Counsel to prove the
appropriateness of the backpay period. The Board required that the General Counsel present
affirmative evidence that the employee would have worked for the employer for the backpay
period claimed in the Specification. Such evidence may include the employee’s personal
circumstances, contemporaneous union policies and practices regarding salting campaigns,
specific plans for the targeted employer, instructions or agreements between the discriminatee
and union concerning the anticipated duration of the assignment, and historical data regarding
the duration of employment of the discriminatee and other salts in similar salting campaigns. Oil
Capitol, above, slip op. at 2.

7 Although Oil Capitol involved a refusal to hire employees, the Board stated that its
principles should also apply to cases such as the instant case, where employees were
discharged. Slip op. at 2.
8 Apparently pursuant to Oil Capitol, the Specification was amended, as set forth above, to
limit the duration of the backpay period only until the completion of the Dick’s project.
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The discriminatees’ personal circumstances are such that they were all unemployed at
the time they began work for the Respondent, they were all in the bottom half of the Union’s out-
of-work list and because of the severe unemployment then existing, could not be expected to be
referred to a Union contractor for at least six months. Accordingly, facing such a bleak outlook
for employment with a Union contractor, it is reasonable to assume that the discriminatees
would have remained employed, as they did, for as long as possible with the Respondent,
continuing through the completion of the Dick’s job.
The evidence further demonstrates that Union official Lurate believed that the campaign
to organize the Respondent would last at least six months during which time the Respondent
would have a need for more workers than it started with. Lurate asked for and received a
commitment from the six men that they would remain employed for the duration of the
organizing campaign, through an election or contract or until the Union abandoned it. All six
men continued to be employed from the date of their hire until their discharge. In this
connection, the Union’s intent to maintain a sustained campaign to organize the Respondent is
demonstrated by its filing a petition with the Board and participating in an election which it won.
Finally, the Union has conducted similar organizing campaigns in the same geographical area
including one at Scobar Electric in which organizers worked there for eight months. After his
discharge from the Respondent, Holden worked at Scobar for six months when the campaign
was abandoned for lack of interest. Three of the other discriminatees also worked as covert
organizers in other campaigns.
The evidence clearly demonstrates that the counsel for the General Counsel has met
her burden of proof. As set forth above, the evidence is clear that absent their unlawful
discharges, the six discriminatees would have continued to work for the Respondent at the
Dick’s Sporting Goods job for the entire backpay period.
Order9
The Respondent, Jeffs Electric, LLC, its officers, agents, successors, shall make whole
the discriminatees named below by payment to them of the amounts set forth below, plus
interest calculated in a manner prescribed in, as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), minus tax withholdings required by Federal and State laws. The
amounts set forth below are taken from the figures set forth in the Amended Compliance
Specification. The names of the discriminatees to whom payment shall be made and the
amounts to be paid, plus interest, are as follows:

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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NAME BACKPAY
James Bramanti $ 12,490
Benjamin Holden 14,967
Christopher Lacy 19,490
Harry Richardson 15,235
Joshua Solomonson 23,179
Steve Zajac 18,817
Total Backpay $104,266
Dated, Washington, D.C. , September 17, 2007

____________________
Steven Davis
Administrative Law Judge