Joseph Stallone Electrical Contractors, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1139 (N.L.R.B. 2002)

JOSEPH STALLONE ELECTRICAL CONTRACTORS 1139
Joseph Stallone Electrical Contractors, Inc. and In­
ternational Brotherhood of Electrical Workers,
Local Union No. 269, AFL–CIO. Case 4–CA–
30370
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On November 26, 2001, Administrative Law Judge
William G. Kocol issued the attached decision. The Re­
spondent filed exceptions and a supporting brief. The
Charging Party filed an answering 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 exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified be-
low.3
1. For the reasons set forth in the judge’s decision, as
further explained below, we agree that the Respondent
violated Section 8(a)(1) when Owner Joseph Stallone
made statements indicating that employee Andrew McIl­
vaine’s layoff and recall were connected to the union
activity of other employees. We also agree that the Re­
spondent violated Section 8(a)(3) by laying off McIl­
vaine on May 15, 2001.
On that date, Stallone called McIlvaine to his office
and informed him that he was laid off. According to
McIlvaine’s credited testimony, Stallone said that “he
was having some financial problems and that there were
some things going on with the Union that he had to take
care of.” Stallone specifically mentioned that employees
had talked to the Union and that it had allowed them to
talk to him. He repeated that “when I get this straight­
ened—When I get this taken care of, maybe in a couple
of weeks, call me. Maybe I can hire you back.”
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d. Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(1) when its owner accused an employee of disloyalty
because of the employee’s union activity.
3 We shall modify the recommended Order and notice to include ref­
erence to a Sec. 8(a)(1) violation found by the judge but not mentioned
in those sections of his decision. We shall also substitute a new notice
in accordance with our recent decision in Ishikawa Gasket American,
Inc., 337 NLRB 175 (2001).
Stallone then asked if McIlvaine had met with anyone
from the Union and if he had signed a card. After McIl­
vaine answered, “yes” to each inquiry, Stallone’s face
flushed red. Stallone was previously unaware of McIl­
vaine’s union affiliation.
We agree with the judge that Stallone, in his conversa­
tion with McIlvaine, linked McIlvaine’s layoff with the
fact that other employees and the Union were presenting
grievances to the Respondent.4 It is clear that this activ­
ity was protected by Section 7. It is equally clear that the
Respondent, through Stallone, violated Section 8(a)(1)
by telling McIlvaine that his layoff was linked to this
Section 7 activity of the other employees.
As to the 8(a)(3) allegation concerning the layoff of
McIlvaine, we agree that the General Counsel has shown,
by the 8(a)(1) statement above, that the Section 7 activity
of the other employees was reason for the layoff of
McIlvaine.5 We recognize that the decision to layoff was
made prior to the meeting with McIlvaine and prior to
the Respondent’s knowledge of McIlvaine’s union activ­
ity. However, inasmuch as this alleged 8(a)3) violation
is based on the union activity of others, it is clear that the
lack of knowledge of McIlvaine’s union activity is irrele­
vant. As to Respondent’s defense, although Respondent
contends that “financial problems” were another reason
for the layoff, it has not shown that these problems, by
themselves, would have caused the layoff of McIlvaine.
Further, and quite apart from the foregoing, it is clear
that the Respondent’s failure to recall McIlvaine was
based not only on the union activity of others but also on
his own union activity. Stallone originally told McIl­
vaine that he would consider the rehire of McIlvaine in a
couple of weeks. Stallone then unlawfully interrogated
McIlvaine about his union activity and, upon learning of
that activity, grew visibly angry. Thereafter, and con­
trary to its original promises, the Respondent did not
consider the recall of McIlvaine and did not recall him.
Accordingly, we agree with the judge that the Respon­
dent violated the Act by not recalling McIlvaine.
2. Although the Respondent’s exceptions contest
some of the judge’s unfair labor practice findings, the
Respondent makes no claim in exceptions or on brief that
a bargaining order is not an appropriate remedy for the
4 Contrary to our dissenting colleague, we find that any arguable
ambiguity in Stallone’s initial remarks to McIlvaine was removed by
his follow-up questions —whether McIlvaine had met with anyone
from the Union and whether he had signed a card —particularly given
the change in Stallone’s demeanor (his face flushed red) after McIl­
vaine responded, “yes” to each question.
5 Further, contrary to our dissenting colleague, we believe that Stal­
lone’s angry reaction to McIlvaine’s union activity is relevant to the
issue of whether Stallone laid off McIlvaine because of the union activ­
ity of other employees.
337 NLRB No. 178
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unfair labor practices found, and it offers no mitigating
evidence with respect to the judge’s analysis under NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969). The Board
has discretion to reach remedial issues not raised by the
parties, but under all of the circumstances presented, in­
cluding the reasons articulated by the judge and the ab­
sence of argument from the Respondent, we agree that
the Gissel bargaining order is appropriate.
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Joseph
Stallone Electrical Contractors, Inc., Bristol, Pennsyl­
vania, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(d) and reletter
subsequent paragraphs.
“(d) Threatening to lay off employees because of their
union activity.”
2. Substitute the attached notice for that of the admin­
istrative law judge.
MEMBER COWEN, dissenting in part.
Contrary to my colleagues, I would reverse the judge’s
finding that the Respondent told employee Andrew
McIlvaine that his layoff and recall were connected to the
union activity of other employees and I would also re-
verse his finding that McIlvaine’s May 15, 2001 layoff
violated the Act. And, while I would adopt the other
unfair labor practices the judge found, I would not issue
a bargaining order under NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969), because the General Counsel has
not demonstrated why traditional remedies (including the
posting of a cease and desist notice, make-whole reme­
dies, and reinstatement) are inadequate in this case.
Regarding employee McIlvaine, the judge found that
the Respondent was not aware of his union activities at
the time it laid him off. The General Counsel has not
excepted to that finding. However, the judge found that
McIlvaine was laid off in connection with the union ac­
tivities of other employees, of which the Respondent did
have knowledge. In this regard, the judge found that, on
May 15, Stallone called McIlvaine into his office and, in
essence, told him that he was having some financial
problems and that there were some things going on that
he had to get taken care of with the Union and when
things straightened out that maybe he could hire McIl­
vaine back. The judge found that Stallone thereby con­
nected McIlvaine’s layoff and recall to the union activity
of other employees in violation of Section 8(a)(1). I dis­
agree. Given the fact that the Respondent was unaware
of any union activity by McIlvaine when the statement
was made, this is too slender a reed on which to hang an
8(a)(1) violation. It seems clear that the things that the
Respondent could get “straightened out” would be its
own financial affairs and not its employees’ union activ­
ity. At the most, the statement is ambiguous but that
would not establish a violation of the Act.1
Since there was no 8(a)(1) violation in Stallone’s
statement, and since that finding was one of the key ele­
ments in the judge’s finding that the General Counsel
had met his initial burden under Wright Line2 in showing
that McIlvaine’s layoff was unlawful, I would reverse the
judge; find that the General Counsel did not meet this
initial burden; and reverse the judge’s ensuing 8(a)(3)
violation regarding McIlvaine’s layoff.
And, notwithstanding that I would adopt the remaining
unfair labor practices found by the judge, as noted, I
would not issue a Gissel bargaining order in this case. I
start from the premise, set out by the Board itself in
Hausner Hard-Chrome of KY, Inc.,3 that
[a]t the outset, it is important to understand that the
normal and customary procedure for determining em­
ployee representation is an election. Ordering union
representation based on authorization cards and the
commission of unfair labor practices is an extraordi­
nary remedy and the General Counsel has the burden of
showing that the unfair labor practices were so serious
and pervasive as to warrant a bargaining order because
the possibility of conducting a fair election is slight.
The General Counsel did not meet this burden in this
case. Assuming the 8(a)(3) violations in this case involv­
ing loss of employment are considered “hallmark” viola­
tions, the Board has indicated that “hallmark” violations
“will not always mandate the imposition of a bargaining
order.”4 Here, as in Charlotte Amphitheater Corp. v.
NLRB, 82 F.3d 1074 (D.C. Cir. 1996), the judge has not
articulated why the requirement that the Respondent “re-
instate the unlawfully discharged employees with back-
pay, when combined with the other traditional remedies
at [the Board’s] disposal, are not enough to mitigate the
1 Mixing motivational apples with oranges, my colleagues find clar­
ity in the fact that after informing McIlvaine that he would be laid off,
Stallone asked McIlvaine whether he had met with anyone from the
Union or had signed a union card. However, neither the General Coun­
sel, the judge, nor my colleagues argue that McIlvaine was laid off
because of his own union activity. Rather, they assert that he was laid
off because of the union activity of other employees. In this regard, the
judge found that Stallone was surprised to learn of McIlvaine’s union
activity. Simply stated, post layoff questions about McIlvaine’s own
union activity have no bearing on the question of whether the layoff
itself was motivated by the union activity of other employees.
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
3 326 NLRB 426, 439 (1998).
4 Phillips Industries, 295 NLRB 717, 718 (1989) (citations omitted).
JOSEPH STALLONE ELECTRICAL CONTRACTORS 1141
effects of [the Respondent’s] actions.”5 Such reinstate­
ment with backpay along with a cease and desist order to
cover the 8(a)(1) violations have not been shown to be
inadequate in this case. I would accordingly enter these
remedies instead of the bargaining that my colleagues
have issued.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT tell employees that their layoff and recall
are connected with the union activity of other employees.
WE WILL NOT coercively interrogate employees
concerning their union activities.
WE WILL NOT accuse employees of disloyalty because
they engaged in union activity.
WE WILL NOT threaten to lay off employees because of
their union activities.
WE WILL NOT threaten to discharge employees if they
did not end a lawful strike.
WE WILL NOT discharge, lay off, or otherwise dis­
criminate against employees for supporting the Interna­
tional Brotherhood of Electrical Workers, Local Union
No. 269, AFL–CIO, or any other union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Andrew McIlvaine, Daniel Spickler, Robert
Fiorelli, and Richard Spickler full reinstatement to their
former jobs or, if those jobs no longer exist, to substan­
tially equivalent positions, without prejudice to their sen­
iority or any other rights or privileges previously en-
joyed.
5 82 F.3d 1074, 1080 (D.C. Cir. 1996) (emphasis in original).
WE WILL make Andrew McIlvaine, Daniel Spickler,
Robert Fiorelli, and Richard Spickler whole for any loss
of earnings and other benefits resulting from their dis­
charge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw­
ful discharges and layoffs of Andrew McIlvaine, Daniel
Spickler, Robert Fiorelli, and Richard Spickler, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the discharges
and layoffs will not be used against them in any way.
WE WILL, on request, bargain with the International
Brotherhood of Electrical Workers, Local Union No.
269, AFL–CIO and put in writing and sign any agree­
ment reached on terms and conditions of employment for
our employees in the following bargaining unit:
All full-time electricians and electrician helper/ appren­
tices employed by us, but excluding all other employ­
ees, and managerial employees, confidential employ­
ees, seasonal employees, guards, and supervisors as de-
fined by the Act.
JOSEPH STALLONE ELECTRICAL CONTRACTORS,
INC.
Randy M. Girer and Anjali P. Enjeti-Sydow, Esqs. for the Gen­
eral Counsel.
James A. Downey III, Esq. (Begley, Carlin & Mandio), of
Langhorne, Pennsylvania, for the Respondent.
Richard T. Aichor, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on October 2 and 4,
2001. The charge, first amended charge, and second amended
charge were filed May 24, 31, and September 14, 2001,1 re­
spectively and a second-amended complaint (the complaint)
was issued October 1. The complaint alleges that Joseph Stal­
lone Electrical Contractors, Inc. (Respondent) violated Section
8(a)(1) by interrogating an employee concerning the em­
ployee’s union activity, threatening that the employee’s layoff
would continue until the employees ceased seeking union rep­
resentation, accusing an employee of being disloyal because the
employee engaged in union activity, announcing to employees
that an employee was a paid union organizer, threatening to lay
off the employee because the employee was engaging in union
activity, and threatening employees with termination and loss
of benefits if they did not cease engaging in a strike. The com­
plaint also alleges that Respondent violated Section 8(a)(3) by
laying off employees Andrew McIlvaine and Daniel Spickler
and discharging employees McIlvaine, Spickler, Richard L.
Spickler Jr., and Robert Fiorelli. As part of the remedy the
1 All dates are in 2001 unless otherwise indicated.
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
complaint seeks the issuance of a bargaining order. Respon­
dent filed a timely answer that admitted the filing and service of
the charge and amended charges, jurisdiction, labor organiza­
tion status, and the agency status of Joseph Stallone; it denied
the substantive allegations of the complaint.
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in the business of per-
forming electrical repair and installation services for commer­
cial and industrial customers at its facility in Bristol, Pennsyl­
vania, where it annually performs services valued in excess of
$50,000 outside the Commonwealth of Pennsylvania. Respon­
dent admits and I find that it is an employer engaged in com­
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the International Brotherhood of Electrical Work­
ers, Local Union No. 269, AFL–CIO (the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
As indicated, Respondent is engaged in the business of pro­
viding industrial and commercial electrical repair and installa­
tion services. It provides these services within a 50-mile radius
of Bristol, Pennsylvania, where it maintains its offices. Joseph
Stallone is Respondent’s president and sole owner.
As of May, Respondent employed eight full-time electricians
and helpers: Vincent Stallone (Joseph’s brother), David Rago,
Richard Spickler, Jeffrey Maier, Robert Fiorelli, Daniel Spick­
ler (Richard’s son), Robert Ditmars, and Andrew McIlvaine.
Tom Bates is an assistant business manager/organizer for the
Union. In September 2000, he and Steven Aldrich, who is an
organizer for the Union, visited a jobsite and encountered Fio­
relli and Daniel Spickler. Fiorelli thereafter went to the union
hall and on September 22, 2000, Fiorelli signed an authoriza­
tion card for the Union. Before Fiorelli signed the card Bates
told him that it would authorize the Union to represent him and
might be used for an election. Bates also showed Fiorelli the
wages that employees received who worked for union employ­
ers. Daniel Spickler then visited the union hall on September
27, 2000, and he too signed an authorization card for the Union.
In January or February Stallone told some employees that he
had talked with Chico Marciante, the Union’s business man­
ager, and that if the majority of employees decided to go union
there was a possibility that Respondent would go union too.
Later, however, at some time in March Stallone told Fiorelli
that he thought it was not a good time to become a union con-
tractor.2
On about February 2, McIlvaine visited the union hall to find
work. He was given a list of nonunion contractors and was told
that he should try to obtain employment from them. Respon­
dent’s name was on the list. That same day McIlvaine went to
Respondent’s facility where Stallone interviewed him. Stallone
explained the work that they were doing and he mentioned
2 Stallone did not deny any of this test imony.
several specific jobsites. Stallone said that he had a lot of work
and some big jobs were coming up. McIlvaine completed an
employment application and Stallone hired him as an electri­
cian helper. As McIlvaine was leaving Stallone stopped him
and asked how he had heard of Respondent. McIlvaine an­
swered that his uncle referred him and that he got the name
from the telephone book. Stallone said that he wanted to let
McIlvaine know that Respondent was a nonunion company and
that all the employees were nonunion. McIlvaine said that that
was fine. On February 6 McIlvaine signed an authorization
card for the Union. McIlvaine began working for Respondent
on February 26. The delay between the time he was hired and
the day he started work was due to the fact that McIlvaine was
considering working for another employer and needed time to
make up his mind.3
Stallone testified that in March 2001, he reviewed the finan­
cial statement for the previous year and concluded that Respon­
dent’s business position was worse than he had thought in that
Respondent was having difficulty getting paid for work that had
been performed. That statement showed that Respondent ex­
perienced an operating loss of $95,675 for the year 2000. It
also showed that Respondent had accounts receivable of
$90,205 as of December 31, 2000. That amount did not include
money owed for jobs in progress. The financial statement
showed stockholder’s equity in the amount of $109,868 and
longterm liabilities owed to shareholder of $156,719. Stallone
testified that after he reviewed the financial statement he laid
off part-time office employees Dorothy Bailey and Veronica
LaRosa on March 20. But he explained that Respondent al­
lowed them to work a certain number of hours per week even
though they were laid off because Pennsylvania law allows
employees to work some hours and still receive unemployment
compensation. Thus, during their “lay off” Bailey’s hours were
reduced from about 15 hours per week to about 3–4 hours per
week and LaRosa hours were reduced from about 30 hours to
7–8 hours per week. Unlike other employees who were laid
off, there were no layoff notices in the files of LaRosa or Bai­
ley. All the electricians continued to work 40 hours per week
until the layoff beginning May 15, described more fully below.
During this same time period Stallone told Richard Spickler
that Respondent was not receiving the money that was due
from its customers and that things were tight. Stallone had
made similar comments in the past.4 During this same time
period Stallone and Daniel Spickler had a conversation in Stal­
lone’s office. Stallone showed Daniel some financial records
and said that Respondent was losing money, there was the pos­
sibility of layoffs, and Daniel would be one of the employees
laid off. Daniel asked when the layoff would happen, and Stal­
lone replied that he was not sure because it depended on
whether he received the money he was owed. Daniel asked to
see the financial records but Stallone did not allow him to do
3 These facts are based on McIlvaine’s credible testimony. Stallone
did not deny the statements attributed to him by McIlvaine.
4 These facts are based on Richard Spickler’s credible testimony.
Stallone did not deny this testimony.
JOSEPH STALLONE ELECTRICAL CONTRACTORS 1143
so.5 Stallone also had a similar conversation with Ditmars.6
McIlvaine also had a conversation with Stallone in Stallone’s
office. Stallone announced that there might be layoffs but that
it wasn’t going to involve McIlvaine; that he shouldn’t worry.
Stallone said that if there were layoffs McIlvaine should drive
out to the worksite instead of reporting for work in the morning
(so that it would appear that McIlvaine was laid off too). Stal­
lone said that Ditmars and Daniel Spickler might be the em­
ployees who were laid off. Stallone also said that he could not
afford to lose McIlvaine because he was a good worker.7 None
of the electricians, however, were laid off at that time. In April,
about a month after her “lay off,” Respondent recalled office
employee LaRosa to work full time.
Bates and Aldrich encountered other employees of Respon­
dent on jobsites. On April 27, Richard Spickler, Daniel Spick­
ler, Ditmars, and Maier went to the union hall where Richard
Spickler, Ditmars, and Maier signed authorization cards for the
Union.8
On about April 30, Bates called Stallone and asked to meet
with him to discuss how Respondent could become union; Stal­
lone agreed to meet. After the telephone call the Union sent
four or five union members to apply for employment with Re-
5 The facts concerning this conversation are based on Daniel Spick­
ler’s credible testimony. Stallone did not specifically deny Daniel
Spickler’s version of this conversation except to claim that he showed
portions of the financial statement to him. Stallone, however, test ified
that he was uncertain of when these conversations occurred but he
thought they occurred about a month or so after he had laid off the
office employees.
6 Stallone testified that he discussed the matter with them “about the
time” he laid off the part -time office employees. He fixed that time in
March. Yet he also testified that he had laid off McIlvaine “prior to
that announcement,” apparently referring to the discussions with Daniel
Spickler and Ditmars. Yet McIlvaine was not laid off until May 15.
However, later Stallone testified that he had the conversations with
Daniel Spickler and Ditmars about a month before he laid them off.
They were laid off on May 16. Then Stallone clarified that at the time
he had these conversations he had not yet laid off McIlvaine. When
asked by Respondent’s counsel, Bates testified that he thought it was
true that on or about March 26 the Spicklers and Ditmars were told that
it was likely that they would be laid off. I conclude that these conver­
sations occurred in March after Stallone reviewed that financial state­
ment.
7 McIlvaine testified that this conversation occurred in early May. I
conclude that he is mistaken as to the date. From the substance of the
conversation I conclude it occurred around the same time that Stallone
had advised Ditmars and Daniel Spickler of the possibility of their
layoff. McIlvaine was admittedly an outstanding employee. Vincent
Stallone described him as an excellent worker and a “go getter.” Stal­
lone said that he liked McIlvaine and that he was a “pretty good
worker.” I conclude that McIlvaine’s testimony concerning the sub-
stance of the conversation was credible. Stallone testified that he dis­
cussed that matter of layoffs with Ditmars and Daniel Stallone because
he said that they the least senior at the time. However, McIlvaine in
fact was the least senior employee at that time. Stallone explained that
he did not advise McIlvaine of a potential lay off since McIlvaine had
just been hired whereas he felt that Daniel Spickler and Ditmars were
entitled to advance notice. I do not credit that testimony; it is at odds
with the record as a whole as well as my assessment of the relative
demeanor of the witnesses.
8 Ditmars’ card incorrectly bears the date of April 26.
spondent. They applied on about May 2 or May 3, but none
were hired. One of the applicants was Guy Miliziano. He ap­
plied on May 2 and had a conversation with Stallone at the
time. Miliziano gave his work experience and explained that he
was looking for employment closer to his home. After some
small talk Stallone commented that Respondent was a nonunion
employer and Miliziano said ok. Stallone said that he was not
hiring right then but that in about 2 weeks he had some work
coming up. He asked if he could call Miliziano then.9
On May 8, Bates and Aldrich met with Stallone; Stallone’s
brother Vincent was also present. Bates explained that he had
been in contact with Respondent’s employees and they were
receptive to the Union. Stallone asked for the names of the
employees that the Union had talked to, but Bates declined to
give Stallone that information. Instead, Bates said that the
Union had signed statements of support from some of the em­
ployees. During the meeting the Union gave Respondent writ-
ten information concerning the Union’s standard wage and
benefit package. Bates told Stallone how the Union might be
able to help Respondent gain more business. Vincent Stallone
asked if his son, who worked as a summer helper for Respon­
dent, would be able to continue to do so. Bates explained the
Union’s practice concerning summer helpers. The union repre­
sentatives also explained that both Stallone and Vincent could
become members of the Union. At some point during the meet­
ing Stallone told the union representatives to tell Chico Marci­
ante not to send any more union applicants to Respondent.
Marciante is the Union’s business manager. Aldrich replied
that Marciante did not send the applicants, he did. During the
meeting the union representatives said that they were either
coming in the front door or coming in the back door. Stallone
became angry and asked if they were threatening him. Bates
then explained that the Union could either be voluntarily recog­
nized or it could gain representation rights through the election
process. Stallone ended the meeting by saying that he would
get back to the Union.10 After Stallone did not call the Union,
Bates called Stallone on about May 11. Stallone said that he
was not ready to become a union contractor and that if he got
any jobs that the Union was interested in, he would back off of
them. It should be noted that at no time during these discus­
sions did Stallone indicate that Respondent was undergoing
financial distress.
On May 15, Stallone called McIlvaine to his office. Stallone
said that he was having some financial problems and that there
some things going on with the Union that he had to take care
of. He said that apparently some of the employees had been
talking to the Union and that had allowed the Union to come to
Stallone’s office and talk to him. Stallone said that when he got
this taken care of, maybe in a couple weeks, McIlvaine should
call him and maybe he could hire McIlvaine back. Stallone
then asked McIlvaine if he had met with any of the guys from
9 These facts are based on Miliziano’s credible testimony. Here
again, Stallone did not deny these statements.
10 These facts are based on Bates’ credible testimony. The testimony
of Stallone and Vincent Stallone is not materially different. For exam­
ple, Vincent Stallone admitted that during the meeting Stallone said to
tell “Chico” not to send over more union applicants.
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union. McIlvaine said yes. Stallone asked if McIlvaine
had signed a union card, and McIlvaine again answered yes. At
that point Stallone became upset. McIlvaine was the least sen­
ior employee among the electricians at the time of his lay off.11
After McIlvaine was laid off Bates met with Daniel Spickler
at the union hall. Bates gave Spickler a union hat and t-shirt
and asked him to wear them to work the next day. He also gave
Daniel a letter on union letterhead advising Respondent that he
was a voluntary union organizer. That next morning, on May
16, the Union faxed Respondent the letter. That same day
Daniel Spickler wore the union hat and T-shirt to work. Both
the hat and t-shirt clearly identified the Union. Daniel Spickler
and Stallone then met in Stallone’s office. Daniel gave Stallone
a copy of the letter that Bates had prepared and had faxed to
Respondent that day. Stallone read the letter and asked what it
meant. Daniel answered that it meant exactly what it said.
Stallone said that he thought he told Daniel that he would take
care of the matter, but Daniel replied that Stallone talked to
other everyone else about this but never talked to him. Stallone
then said that Daniel did not have to go and stab him in his
back. Daniel responded that he did what he had to do. Stallone
and Daniel Spickler later came out of the office and Stallone
called the employees together and announced to the employees
that he had received a letter from the Union that Daniel was
voluntary union organizer. Stallone read the letter to the em­
ployees. Stallone and the employees then discussed the work
that was to be done that day. Several minutes later Stallone
asked Daniel Stickler to return to Stallone’s office. Stallone
asked if Daniel remembered what he had said about layoffs.
Stallone continued, saying that in Daniel’s situation Stallone
would let Daniel know at the end of the end what his status
was. Daniel Spickler then worked the rest of the day. When
Daniel returned to the shop at the end of the workday Stallone
handed him a pamphlet concerning unemployment compensa­
tion and told him that he was laid off.12 That same day Stallone
also laid off Robert Ditmars. Ditmars, however, was recalled to
work about 2 weeks later and his layoff is not alleged to be
unlawful. Daniel Spickler had worked full time for Respondent
since January 1999. Ditmars and Daniel Spickler were the least
senior employees among the electricians at the time of their
layoffs. Prior to these lay offs Respondent had not laid off any
employees since 1997.
The next day Bates and Aldrich met with Fiorelli, Richard
Spickler, Daniel Spickler, and McIlvaine. At this meeting
M cIlvaine explained that Stallone had asked him if he had
signed a card. Bates explained that this was an unfair labor
practice. Bates also voiced his view that the layoffs of McIl­
vaine and Ditmars were unfair labor practices and that Daniel
Spickler’s being paraded in front of the other employees was
11 These facts are based on McIlvaine’s credible testimony. Stallone
did not deny the key elements of McIlvaine’s testimony. Instead, Stal­
lone testified that medication he takes for high blood pressure makes
him get “red in the face.”
12 The preceding facts are based on Daniel Spickler’s credible testi­
mony. Stallone agreed with much of Daniel Spickler’s testimony.
Significantly, Stallone did not deny Daniel Spickler’s testimony con­
cerning the conversations that occurred between the two of them that
day.
also unlawful. Bates explained that the employees could decide
to go out on strike to protest the unfair labor practices. Bates
and Aldrich left the room and after discussion the employees
decided to strike to protest the alleged unfair labor practices.
Handmade signs were then prepared. The signs read: “Stallone
Electric Employees On Strike Unfair Labor Practices.”
On May 18, Fiorelli and Richard Spickler engaged in a strike
and together with Daniel Spickler and McIlvaine, they began
picketing at Respondent’s facility shortly before 7 a.m. Bates
and Aldrich were also present. Stallone came out to the picket
line and asked Fiorelli and Richard Spickler for their keys to
the facility; both employees gave the keys to Stallone. Later
Stallone again appeared on the picket line and presented letters
to Richard Spickler and Fiorelli that read:
Today May 18, 2001 you did not report to work. You are be­
ing directed to report to work now. If you do not report to
work now, there could be disciplinary action taken against
you. This action could be termination of job, termination of
medical insurance benefits, and termination of vacation bene­
fits.
After Stallone gave out the letters he invited Bates to come into
the shop and discuss the situation, but Bates declined. The
picketing lasted until midmorning and did not occur again.
Fiorelli and Richard Spickler remained on strike and did not
return to work. The Union found employment for the alleged
discriminatees at union shops.
On May 22, Respondent sent Daniel Spickler and McIlvaine
a letter advising them that because they had been laid off their
health insurance would be terminated and telling them that they
must return all company property in order to receive his final
check. That same day Respondent sent a letter to Richard
Spickler and Fiorelli advising them that they had been termi­
nated. No reason was given for the termination in the letter.
Richard Spickler had been employed with Respondent for al­
most 18 years. Fiorelli had worked for Respondent since Janu­
ary 1997.
A few days after the picketing McIlvaine called Stallone and
told him that he needed his paycheck. Stallone replied that
McIlvaine would not receive his check until he returned the
keys and credit card that belonged to Respondent. On about
May 23, McIlvaine went to Respondent’s facility to return the
keys; while there he spoke with Stallone. Stallone said that he
was disappointed in McIlvaine and that McIlvaine had lied to
him from the very beginning. Stallone said that they had sat
down and figured out that McIlvaine had been talking to the
Union well before McIlvaine started with Respondent. Stallone
wished McIlvaine good luck and commented that he believed
that McIlvaine would make a good electrician. Respondent did
not recall McIlvaine for work.
In early June Respondent recalled Ditmars from layoff.
Ditmars had not participated in the strike. Effective June 3,
Respondent gave wage increases to five employees. Rago,
Vincent Stallone, and Maier received a $2-per-hour increase,
Ditmars a $1.90-per-hour increase, and James Stallone a $1 per
hour. Respondent’s employees had generally received annual
increases of 50 cents per hour for the past several years, if they
received a wage increase at all.
JOSEPH STALLONE ELECTRICAL CONTRACTORS 1145
At the time the employees were laid off or terminated Re­
spondent was working on a number of projects. Among the
projects were the First United Methodist Church in Princeton
and a doctor’s office in Bristol. These were projects were
about 50-percent completed. A project involving waste man­
agement in Hamilton Township was about one-third completed.
The work on a Dodge dealership in Burlington had just started.
Respondent was working on project involving the conversion
of a gymnasium to a theatre; this project was about 45-percent
completed. A project for Jones New York, located in an indus­
trial park near Respondent’s facility, involved the installation of
a new uninterrupted power system. This project too had only
just started. Respondent was also working on two projects in
Kingston. They involved the renovation of a lawyer’s office
and an apartment complex. Both were about 50-percent com-
pleted.13
Since mid-May Respondent has used a number of other elec­
tricians and electrician helpers. Steven Van Doren was hired as
a full-time electrician helper on July 25. Respondent has used
Anthony Maruccci as a part-time apprentice beginning July 16;
he has worked about 30 hours per week for about 5 weeks as
needed. Daniel Maleney and Andrew Maleney are part-time
journeyman electricians who have worked about 2 weeks for
Respondent beginning September 10; they averaged about 20
hours per week.
Respondent’s financial statement for the year ending De­
cember 31, 2000, has been described above. Respondent’s
financial statement for the year ending December 31, 1997,
shows that it had a loss of $77,799 and accounts receivable of
$141,205. The financial statement for the year 1998 showed
that Respondent had a net loss of $146,991 and accounts re­
ceivable of $104,848. The financial statement for 1999 showed
that Respondent net income in the amount of $81,036 and ac­
counts receivables of $217,564. Finally, Respondent also had a
financial statement for the first 6 months of 2000. That showed
that Respondent had a net income of $12,602 and accounts
receivable of $195,430.
Stallone testified that Respondent was having trouble getting
paid and that this had been a problem for 2, 3, and 4 years. He
described the Attleboro project, where Respondent did wiring
work for 102 units in an assisted living facility. That customer
owed Respondent over $26,000 since September or October
2000. Another customer cited by Stallone was Escher Street, a
homeless shelter in Trenton. In that case Respondent was only
recently paid in August, although the project had been com­
pleted in 1996. The situation continued after the alleged dis­
criminatees had been laid off or terminated. The Sunrise pro­
ject was a senior living facility consisting of two buildings
located in Abington. The project was completed in around
October 1999 but Respondent has still not been paid over
$26,000. Respondent completed a residential apartment build­
ing project in Kingston in August, yet as of the hearing date in
early October Respondent was still owed $16,000. Respondent
performed work on a church in Princeton. That project was
13 These facts are based on a composite of the testimony of the for­
mer employees. Stallone conceded that this testimony was “pretty
accurate.”
recently completed but Respondent had not been paid in full: it
was owed over $5000. As Stallone explained, “[Y]ou’re al­
ways waiting [for] money.”
Stallone also testified that during 2001 he twice borrowed
over $12,000 to meet payroll and pay expenses. Stallone was
not sure of the exact date, but he thought this happened near the
end of February. Respondent produced no records to support
this testimony. Stallone also testified that since the first of the
year he personally has loaned between $14,000 and $20,000 to
Respondent. Again Respondent produced no documents to
support this testimony either as to the amount or the date the
loan(s) took place. Stallone testified that none of the loans had
been paid back as of the hearing date. Stallone testified that
since the first of the year he had to make two penalty payments
to the Internal Revenue Service of about $4000 as a result of
late payments. Jay Ronald Conway, Respondent’s accountant,
testified that Respondent had been assessed penalties from time
to time over the last 2 or 3 years. Finally, Stallone testified that
since the first of year he has gone without getting paid on about
six or seven times. Again, no documentary evidence was pro­
duced.
Conway prepared the financial statements described above.
He testified that at some unspecified time after he prepared the
2000 financial statement he told Stallone that he felt that Stal­
lone had to tighten up in certain areas. He testified that he ad-
vised Stallone that if his cash flow was not generating enough
cash to operate the business without Stallone himself having to
lend the company money or extend personal credit to the busi­
ness, then Stallone should think about reducing payroll. Stal­
lone did not corroborate this testimony nor did he testify that he
relied on Conway’s comments in deciding to lay off employees.
III. ANALYSIS
A. 8(a)(1) Allegations
The complaint alleges that Respondent violated Section
8(a)(1) by threatening that the employee’s layoff would con­
tinue until the employees ceased seeking union representation.
I have set forth above how on May 15 Stallone told McIlvaine
that he was having some financial problems and that there some
things going on with the Union that he had to take care of. He
said that apparently some of the employees had been talking to
the Union and that had allowed the Union to come to Stallone’s
office and talk to him. Stallone said that when he got this taken
care of, maybe in a couple weeks, McIlvaine should call him
and maybe could hire McIlvaine back. The Board has long
held that the general test in determining whether an employer’s
statement violates Section 8(a)(1) is whether, under all the cir­
cumstances the statement reasonably tends to interfere with,
restrain or coerce employees in the exercise of their rights
guaranteed by the Act. American Freightways, Co., 124 NLRB
146 (1959). Here, Stallone told McIlvaine that he was being
laid off, that the layoff was connected with the union activity of
the employees, and that once he took care of the union matter
he might be able to call McIlvaine back to work. Stallone thus
clearly connected both McIlvaine’s lay off and his recall to the
union activities of the other employees. This the Act forbids. I
conclude that by telling an employee that his layoff and recall
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were connected with the union activity of other employees,
Respondent violated Section 8(a)(1).
The complaint also alleges that Respondent violated Section
8(a)(1) by interrogating an employee concerning the em­
ployee’s union activity. I have described above how, as part of
the same conversation set forth in the preceding paragraph,
Stallone asked McIlvaine if he had met with anyone from the
Union. McIlvaine said yes. Stallone asked if McIlvaine had
signed a union card, and McIlvaine again answered yes. At that
point Stallone became upset. This conversation took place in
Stallone’s office. The questioning of an employee about his
union activities is not per se a violation of the Act. Rather, all
the surrounding circumstances must be examined to determine
whether the questioning reasonably tended to interfere with,
restrain, or coerce employees in the exercise of their rights
protected by the Act. Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). In this case McIlvaine had not re­
vealed his union activity to Respondent at the time of the ques­
tioning. In fact, it was apparent that Stallone was surprised by
McIlvaine’s answer. Stallone was Respondent’s highest man­
agement official, and the conversation occurred in his office. It
occurred in the context of Stallone announcing McIlvaine’s
layoff. Moreover, as described above, the interrogation came
after Respondent had violated the Act by connecting McIl­
vaine’s layoff and recall to the union activities of other em­
ployees. Under these circumstances, I conclude that Respon­
dent violated Section 8(a)(1) by interrogating an employee
concerning his union activities.
Next, the complaint alleges that Respondent violated Section
8(a)(1) by accusing an employee of being disloyal because the
employee engaged in union activity. As indicated above, on
May 16 Daniel Spickler gave Stallone a copy of the letter that
Bates had prepared and had faxed to Respondent that day.
Stallone read the letter and asked what it meant. Daniel an­
swered that it meant exactly what it said. Stallone said that he
thought he told Daniel that he would take care of the matter, but
Daniel replied that that Stallone talked to other everyone else
about this but never talked to him. Stallone then said that
Daniel did not have to go and stab him in his back. The Board
has held that statements that convey to employees that it is
disloyal to an employer to engage in union activity violate the
Act. Crown Cork & Seal, 308 NLRB 445, 457 (1992); enfd. 36
F.3d 1130 (D.C. Cir. 1994); I conclude that Respondent vio­
lated Section 8(a)(1) by accusing an employee of disloyalty
because the employee engaged in union activity. Golden Eagle
Spotting Co., 319 NLRB 64, 74 (1995), enfd. 93 F.3d. 468 (8th
Cir. 1996); Sound One Corp., 317 NLRB 854, 857 (1995),
enfd. 104 F.3d. 356 (2d Cir. 1996).
The complaint alleges that Respondent violated Section
8(a)(1) by announcing to employees that an employee was a
paid union organizer. In support of this allegation the General
Counsel relies on the facts, set forth above, that on May16,
after the conversation described in the preceding paragraph,
Stallone and Daniel Spickler came out of Stallone’s office and
Stallone called the employees together and announced to the
employees that he had received a letter from the Union that
Daniel was going to be a voluntary union organizer. Stallone
read the letter to the employees. Stallone and the employees
then discussed the work that was to be done that day. I do not
see how this incident would reasonably tend to interfere with
the employees’ rights. Daniel Spickler was seeking to publicly
identify himself as an open union organizer. He was, after all,
wearing a union hat and a union T-shirt. He had presented
Stallone with the letter from the Union conveying in writing
what was already visible: that Daniel was an open union adher­
ent. Stallone merely announced the obvious to the employees
without making any other comment. Afterwards, the employ­
ees resumed normal workday activities. In support of this
allegation the General Counsel cites NLRB v. Great Dane
Trailers, 388 U.S, 26 (1967). However, I find nothing
“inherently destructive” of employee’s rights, as defined by the
Supreme Court, in Stallone’s conduct. Under these
circumstances I shall dismiss this allegation of the complaint.
The complaint next alleges that Respondent violated Section
8(a)(1) by threatening to lay off an employee because the em­
ployee was engaging in union activity. I have described above
how, after incident set forth in the preceding paragraph, Stal­
lone asked Daniel Stickler to return to Stallone’s office. Stal­
lone asked if Daniel remembered what he had said about lay
offs. Stallone continued, saying that in Daniel’s situation Stal­
lone would let Daniel know at the end of the day of his status.
It should be recalled that earlier Stallone had advised Daniel
Stickler that there was the possibility of layoffs, and Daniel
would be one of the employees laid off. Daniel had then asked
when the layoff would happen, and Stallone replied that he was
not sure because it depended on whether the he received the
money he was owed. Thus Stallone had earlier advised Daniel
that he could be laid off, but in fact Daniel had not been. It was
only after Daniel’s visible display of support for the Union that
Stallone resurrected the issue. Stallone also alluded to Daniel’s
“situation.” In context that was a reference to Daniel’s newly
open support for the Union. Under these circumstances Stal­
lone’s remarks were a not-too-subtle warning that because of
Daniel’s union activity he would again be considered for layoff.
I conclude that by threatening an employee that he might be
laid off because he engaged in union activity, Respondent again
violated Section 8(a)(1). H. B. Zachary Co., 319 NLRB 967,
969 (1995), enfd. 127 F.3d 1300 (11th Cir. 1997).
Finally,14 the complaint alleges that Respondent threatened
employees with discharge because they engaged in a strike. It
will be recalled that after Fiorelli and Richard Spickler engaged
in a strike and picketing in front of Respondent’s facility, and
after he had requested that they turn in there keys, Stallone
gave them a letter that threatened them with disciplinary action,
including termination and loss of benefits, if they did not end
the strike. The right to engage in a concerted work stoppage is
activity protected by the Act. NLRB v. Washington Aluminum,
370 U.S. 9 (1962). An employer may not threaten to discharge
14 In his brief the General Counsel moves to amend the complaint to
allege that the wage increases that Respondent gave to its employees in
June violated Sec. 8(a)(1). That motion is denied. Due process re-
quires that a respondent have notice of the allegations against it so that
it can present a defense. No notice was given to Respondent, nor was
the legality of the wage increase fully litigated.
JOSEPH STALLONE ELECTRICAL CONTRACTORS 1147
employees if they do not end a lawful strike. MCI Mining
Corp., 283 NLRB 698, 704–705 (1987), enfd. 849 F.2d 609
(6th Cir. 1988). By threatening to discharge employees if they
did not end a lawful strike Respondent violated Section 8(a)(1).
B. 8(a)(3) Allegations
The shifting burden analysis set forth in Wright Line15 gov­
erns the determination of whether Respondent violated Section
8(a)(3) and (1) of the Act by discriminating against Daniel
Spickler and McIlvaine. The Board has restated that analysis as
follows:
Under Wright Line, the General Counsel must make a prima
facie showing that the employee’s protected union activity
was a motivating factor in the decision to discharge him.
Once this is established, the burden shifts to the employer to
demonstrate that it would have taken the same action even in
absence of the protected union activity.7 An employer cannot
simply present a legitimate reason for its actions but must per­
suade by a preponderance of the evidence that the same action
would have taken place even in the absence of the protected
conduct.8 Furthermore, if an employer does not assert any
business reason, other than one found to be pretextual by the
judge, then the employer has not shown that it would have
fired the employee for a lawful, nondiscriminatory reason.9
_______________________________
7 NLRB v. Transportation Management Corp., 462 U.S. 393, 400

(1983).

8 See GSX Corp. v. NLRB, 918 F.2d 1351, 1357 (8th Cir. 1990) (“By

asserting a legitimate reason for its decision and showing by a prepon­

derance of the evidence that the legit imate reason would have brought

about the same result even without the Illegal motivation, an employer

can establish an affirmative defense to the discrimination charge.”).9

See Aero Metal Forms, 310 NLRB 397, 399 fn. 14 (1993).

T & J Trucking Co., 316 NLRB 771 (1995). This was fur­
ther clarified in Manno Electric, 321 NLRB 278 (1996).
Turning first to McIlvaine’s layoff, it is clear that he engaged
in union activity by obtaining employment with Respondent as
part of the Union’s organizing effort and by signing an authori­
zation card. However, the question is whether Respondent
knew or suspected of McIlvaine’s union activity. The General
Counsel concedes that there is no direct evidence that Respon­
dent was aware of his union activities before he was laid off.
He argues, however, that the circumstances here warrant an
inference of such knowledge. In support of this argument, the
General Counsel points out that Stallone had knowledge of the
union activities of the employees in general as a result of his
meeting with the union representatives on May 8. The General
Counsel also relies on McIlvaine’s testimony that a short time
before he was laid off he and Ditmars were talking about the
Union in a bar after work. A man approached them and identi­
fied himself as a friend of Stallone’s and said that he had heard
the conversation; he asked McIlvaine his name. McIlvaine saw
a picture of this person in Stallone’s office. However, there is
no evidence that Stallone’s friend actually told Stallone any-
thing about what he heard. McIlvaine also testified that shortly
15 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
thereafter Vincent Stallone began questioning him about his
work history, how long he intended to stay with Respondent,
and how he learned of the job opening at Respondent. How-
ever, the General Counsel does not contend that Vincent Stal­
lone is Respondent’s agent. Most importantly, however, is the
fact that the General Counsel ignores compelling evidence to
the contrary. At the time of McIlvaine’s layoff Stallone said
that after he took care of the union situation McIlvaine should
call him and maybe he could hire McIlvaine back. This is
hardly consistent with the conduct of someone with acting upon
antiunion animus. Moreover, Stallone then asked McIlvaine if
he had met with any of the union representatives. McIlvaine
said yes. Stallone asked if McIlvaine had signed a union card,
and McIlvaine again answered yes. At that point Stallone be-
came upset. It seems clear that this behavior shows that Stal­
lone only then, for the first time, learned of McIlvaine’s support
for the Union. Under these circumstances I reject the General
Counsel’s argument that he has established Respondent’s
knowledge of McIlvaine’s union activities prior to its decision
to lay off McIlvaine. This conclusion is buttressed by the fact
that later Stallone told McIlvaine that he was disappointed in
McIlvaine and that McIlvaine had lied to him from the very
beginning. Stallone said that they had sat down and figured out
that McIlvaine had been talking to the Union well before McIl­
vaine started with Respondent.16 The General Counsel cites
Hospital San Pablo, 327 NLRB 300, 309 (1998), enfd. 207
F.3d 67 (1st Cir. 2000). However, in that case there was no
contrary, affirmative evidence to support the conclusion that the
respondent only learned of the union activity of the discrimina­
tee after the decision was made to terminate him.
However, the absence of knowledge of is not fatal to the
General Counsel’s case because he also argues that the unlaw­
ful statements made by Stallone on May 15 show the unlawful­
ness of McIlvaine’s layoff. As I have concluded above, Stal­
lone’s unlawful threat to McIlvaine clearly connected his layoff
and recall with the union activity of the other employees. The
Board has held that the discharge of an employee to give the
appearance of regularity to other unlawful discharges is itself
unlawful. Crucible, Inc., 228 NLRB 723, 729 (1977). McIl­
vaine was regarded as an excellent employee and had earlier
been assured that he would not be laid off despite the fact that
he was the least senior among the electricians. Under these
circumstances I conclude that the General Counsel has met his
initial burden under Wrigh tline in showing that McIlvaine’s
layoff was unlawful.
The General Counsel argues in the alternative that even if
McIlvaine’s initial layoff was not unlawful, Respondent’s fail­
ure to recall him was unlawful. I find merit in that argument
too. The evidence shows that Stallone had told McIlvaine,
before he learned of McIlvain’s support for the Union, that he
hoped to recall McIlvaine from layoff in a few weeks. How-
ever, after Stallone learned of McIlvaine’s union support, both
16 The General Counsel also contends that the fact that Respondent
sent out a letter on May 15 to a former employer of McIlvaine request­
ing a job reference further supports his argument. However, I credit
Stallone’s test imony that it was part of Respondent’s normal procedure
and that the office staff stamped his signature on the letter.
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the layoff conversation on May 15 and on the picket line the
next day, McIlvaine was not recalled. Instead, Respondent
recalled Ditmars, who did not participate in the strike, within 2
weeks. Thus, the timing of Respondent’s failure to recall
McIlvaine supports the General Counsel’s argument. Respon­
dent’s hostility towards the Union is shown by the numerous
unlawful statements it made, as more fully described above.
I again conclude that the General Counsel has met his initial
burden of showing that Respondent’s failure to recall McIl­
vaine from layoff was unlawful.
Turning to the layoff of Daniel Spickler, it is clear that
Spickler engaged in union activity by meeting with the union
representatives and signing an authorization card. Any doubt
concerning Respondent’s knowledge of Daniel’s prounion
sympathies were resolved when he appeared at work wearing
the union cap and T-shirt and presented Stallone with the letter
from the Union.17 Respondent’s antiunion animus is shown by
the many unlawful statements it made concerning the Union.
Indeed, Stallone’s statements on the day Daniel was laid off
linked Daniel’s layoff with his union activity. Daniel’s lay off
came on the very same day that he openly displayed his support
for the Union. Thus, the element of timing strongly supports
the General Counsel’s case. I conclude that the General Coun­
sel has met his initial burden under Wright Line of showing that
the layoff of Daniel Spickler was unlawful.
I now examine whether Respondent has shown that it would
have laid off McIlvaine and Daniel Spickler even in the ab­
sence of their union activity. Respondent contends that it laid
off these two employees because it was experiencing a cash-
flow crisis. In assessing Respondent’s defense, it is important
to note that there is no persuasive evidence to explain why the
layoffs occurred on May 15 and 16. The overdue accounts
were of long duration and overdue accounts appear to be a
normal part of Respondent’s business. Indeed, the evidence
shows that Stallone knew the details of Respondent’s cash flow
problem in early 2000, yet he did not lay off the electricians
until mid-May. In the interim Respondent reduced the hours of
the office staff in March, but then later increased the hours of
LaRosa in April. In early May, before he met with the Union,
Stallone told applicant Miliziano that he was not hiring right
then but that in about 2 weeks he had some work coming up
and asked if he could call Miliziano then. Thus, it appears
Respondent endured a financial crunch in March, but by April
it had lessened to the extent that Respondent was able to in-
crease the hours of one employee and by May Respondent was
considering putting another employee on the payroll. There is
no evidence to explain how the cash flow situation had sud­
denly worsened so as to precipitate the layoffs. From the re-
cord, the only change during that period of time was Respon­
dent’s knowledge that its employees were seeking union repre-
17 Respondent points out that it did not have actual knowledge that a
majority of the unit employees had signed authorization cards on behalf
of the Union until the start of the hearing in this case. Respondent
argues that this is significant because it is relevant and probative of
what Stallone knew at the time he laid off the employees. Granted that
Stallone did not know for a fact that a majority of employees had
signed cards, but other evidence shows that Stallone had knowledge of
the union activ ities of his employees.
sentation. After the layoffs and discharges, Respondent quickly
recalled Ditmars in early June and at the same time gave its
employees unusually high wage increases. Even considering
the fact that two employees had been fired after the layoffs, this
conduct appears inconsistent with an urgent cashflow crisis.
Moreover, there is no evidence concerning the magnitude of the
cashflow problem on May 15 or how the layoffs of the three
employees dissipated the problem. I also note that in Septem­
ber Respondent hired a full time employee rather than recall
one of the employees from layoff. It should be recalled that
Respondent admitted that McIlvaine was an excellent em­
ployee; he was not recalled. All these facts tend to show that a
cashflow problem did not trigger the layoffs that occurred in
mid-May. To sure, Respondent was experiencing financial
losses, but it is important to note that Respondent does not con-
tend that the losses, as opposed to a cashflow problem, caused
the layoffs. Moreover, Respondent had experienced losses in
previous years yet it did not lay off employees. Furthermore,
Respondent conceded that it had enough work for the employ­
ees and the layoffs did not result form lack of work. Under
these circumstances, I conclude that Respondent’s assertion
that a cashflow problem compelled it to lay off McIlvaine and
Daniel Spickler was a pretext to disguise the unlawful nature of
the those layoffs.
Respondent also argues that it made the decision to lay off
the employees before it had any knowledge of their union ac­
tivities. When asked about why he decided to lay off two em­
ployees on the day that Daniel Spickler appeared wearing the
union apparel and bearing the union letter, Stallone testified
that the decision had already been made because he was very
concerned about not having cash to pay his employees. Re­
spondent points to the fact that in March Stallone had advised
Daniel Spickler and Ditmars that they might be laid off. But
this fact only serves to undermine Respondent’s argument be-
cause it does not explain why Respondent decided not to lay off
the employees in March but instead decided to do so in May. It
is important to note that Stallone never provided specific testi­
mony as to when he actually made the decision to layoff the
employees. I therefore reject the testimony that Respondent
made the decision to lay off the employees before it had knowl­
edge of any union activity. Respondent has failed to show that
it would have laid off Daniel Spickler and McIlvaine even in
the absence of their union activity.18 Finally. Respondent
points out that the lay offs were made in order of seniority.
This fact might be of considerable weight if the General Coun­
sel were contending that Respondent had unlawfully selected
the employees for lay off. But here the evidence shows that
Respondent has not established that it had a nondiscriminatory
reason for laying off any employees on May 15 and 16. Under
these circumstances, the fact that the employees were laid off
by seniority is not determinative. Accordingly, by laying off
and thereafter failing to recall Daniel Spickler and Andrew
18 I note that Respondent does not contend that McIlvaine’s rein-
statement or backpay should be limited because of any inaccuracies in
his job application. In any event, Respondent has failed to show that it
maintains a policy of discharging employees under those circum­
stances.
JOSEPH STALLONE ELECTRICAL CONTRACTORS 1149
McIlvaine because they engaged in union activity, Respondent
violated Section 8(a)(3) and (1).
Turning now to the discharges of Fiorelli and Richard Spick­
ler, it will recalled that on May 16 they engaged in a strike and
picketing. Respondent unlawfully threatened to discharge them
if they not end the strike. On May 22, Respondent fulfilled its
earlier unlawful threat and discharged the employees for refus­
ing to end the strike. The strike was clearly protected under the
Act. Washington Aluminum, supra. It is unlawful to discharge
employees for refusing to return to work while on strike.
Christopher Co., 288 NLRB 1272, 1275–1276 (1988). Re­
spondent points out that picketing occurred for only a few
hours on May 16 and did not recur thereafter and that no one
ever advised Respondent that the strike was continuing. Re­
spondent also points out that the employees immediately found
work thereafter and never returned to work as Stallone had
requested in his letter. From this Respondent argues that it was
“sandbagged” by the Union. However, Respondent’s termina­
tion letter to the employees makes no mention of a claim that
they had abandoned their jobs. To the contrary, the termination
letters appears to have been a direct result from Respondent’s
earlier letters that threatened the strikers with discharge if they
did not return to work. Although Respondent relies on the fact
that the employees had found other work, there is no evidence
that Respondent was aware of this fact when it sent them the
termination letter. Under all the circumstances, I conclude that
the contention that Respondent terminated the employees be-
cause it believed that they had abandoned their jobs is an after-
thought. By discharging Fiorelli and Richard Spickler because
they refused to end a lawful strike, Respondent violated Section
8(a)(3) and (1).
C. Bargaining Order
As indicated above, the General Counsel seeks the issuance
of a bargaining order as a remedy for the unfair labor practices.
The first matter to be resolved in disposing of that contention is
to define the appropriate unit. The parties agree that a unit of
electricians and apprentice/ helpers is an appropriate unit. That
unit may be appropriately described, as generally alleged in the
complaint as:
All full-time electricians and electrician helper/apprentices
employed by Respondent, but excluding all other employees,
and managerial employees, confidential employees, seasonal
employees, guards and supervisors as defined by the Act.
The parties agree that Rago, Richard Spickler, Maier, Fio­
relli, Daniel Spickler, Ditmars, and McIlvaine are all properly
included in the unit. Of those, Richard Spickler, Maier, Dit­
mars, Fiorelli, Daniel Spickler, and McIlvaine signed authoriza­
tion cards for the Union. The parties disagree only as to the
unit placement of Vincent Stallone. The General Counsel ar­
gues that he should be excluded as a relative of management.
However, I find it unnecessary to resolve that matter, because
the evidence shows that the Union had obtained majority sup-
port in the unit whether or not Vincent Stallone is included. In
addition, the General Counsel made this assertion at the trial,
and I am not confident that the matter was fully and adequately
litigated. Under these circumstances I conclude that this issue
should be left to the Union and Respondent to resolve in the
first instance and through the appropriate unit clarification pro­
cedure if necessary.
Having identified the appropriate unit and concluded that the
Union enjoyed majority support in that unit, I turn now to de­
termine whether the unfair labor practices are serious enough to
warrant the issuance of a bargaining order. In NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969), the Supreme Court author­
ized the issuance of bargaining orders to remedy unfair labor
practices. Bargaining orders could be issued to remedy outra­
geous and pervasive unfair labor practices without regard to
whether or not the union enjoyed majority in the unit. But in
cases of less pervasive and outrageous unfair labor practices,
bargaining orders could issue only upon a showing that the
union enjoyed majority support. Because the union has estab­
lished majority support among the unit employees in this case, I
need determine whether the unfair labor practices met the lesser
standard. The test is whether the unfair labor practices have the
tendency to undermine the majority support among the em­
ployees for the union and make it only slightly likely that a free
and fair election can be had if only the traditional remedies
were ordered.
I have concluded that Respondent violated Section 8(a)(1) by
telling an employee that his layoff and recall were connected
with the union activity of other employees, coercively interro­
gating an employee concerning his union activities, accusing an
employee of disloyalty because the employee engaged in union
activity, and threatening to discharge employees if they did not
end a lawful strike. The last violation, given to the employees
in writing, was a particularly blatant violation of the Act.
Threats of employment retaliation against employees because
they engage in union activity are also very serious violations of
the Act that tend to require the issuance of a bargaining order.
Overnite Transportation Co., 329 NLRB 990, 991 (1999), enfd.
240 F.2d 32 (4th Cir. 2001). These violations are likely to re-
main in the minds of the employees notwithstanding the issu­
ance of traditional remedies of notice posting and a cease and
desist order.
I have also concluded that Respondent violated Section
8(a)(3) and (1) by laying off and thereafter failing to recall
Daniel Spickler and Andrew McIlvaine because they engaged
in union activity and by discharging Robert Fiorelli and Rich­
ard Spickler because they refused to end a lawful strike. The
Board has held that unlawful discharges and layoffs are among
the most flagrant unfair labor practices. Aero Detroit, Inc., 321
NLRB 1101, 1117 (1996). These violations strongly support
the issuance of a bargaining order.
Other factors also support the General Counsel’s remedial
request. The unit is small and the unlawful discharges and
layoffs affected no less than 50 percent of the unit. All the
unfair labor practices were committed by Respondent’s top
official, it’s sole owner Joseph Stallone. Factors that may
weigh against the issuance of a bargaining order are absent in
this case. For example, Respondent has not voluntarily taken
steps to remedy any of its unlawful conduct. Importantly, Stal­
lone remains in charge of Respondent’s operations. There is
little evidence of employee turnover. Less than 6 months have
passed since Respondent committed the violations.
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Considering all the circumstances, I conclude that the possi­
bility of holding a fair election with only the traditional reme­
dies is slight. I further conclude that on balance the employees’
majority support for the Union as expressed in the authoriza­
tions cards is best protected by the issuance of a bargaining
order. This bargaining obligation shall have commenced on
May 15, the date Respondent commenced it unlawful activity.
Trading Port, 219 NLRB 298, 310 (1975).
CONCLUSIONS OF LAW
1. Respondent has engaged in unfair labor practices affect­
ing commerce within the meaning of Section 8(a)(1) and Sec­
tion 2(6) and (7) of the Act by:
(a) Telling an employee that his layoff and recall were con­
nected with the union activity of other employees.
(b) Coercively interrogating an employee concerning his un­
ion activities.
(c) Accusing an employee of disloyalty because the em­
ployee engaged in union activity.
(d) Threatening to discharge employees if they did not end a
lawful strike.
2. Respondent has engaged in unfair labor practices affect­
ing commerce within the meaning of Section 8(a)(3) and (1)
and Section 2(6) and (7) of the Act by:
(a) Laying off and thereafter failing to recall Daniel Spickler
and Andrew McIlvaine because they engaged in union activity.
(b) Discharging Robert Fiorelli and Richard Spickler be-
cause they refused to end a lawful strike.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu­
ate the policies of the Act. Respondent having discriminatorily
discharged, laid off, and failed to recall employees, it must
offer them reinstatement and make them whole for any loss of
earnings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori­
zons for the Retarded, 283 NLRB 1173 (1987). Because of
Respondent’s serious misconduct demonstrating a general dis­
regard for the employees’ rights under the Act, I find it neces­
sary to issue a broad Order requiring Respondent to cease and
desist from infringing in any manner on the rights guaranteed
employees by Section 7 of the Act. Hickmott Foods, 242
NLRB 1357 (1979).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended19
19 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.
ORDER
The Respondent, Joseph Stallone Electrical Contractors, Inc.,
Bristol, Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Telling employees that their layoff and recall are con­
nected with the union activity of other employees.
(b) Coercively interrogating employees concerning their un­
ion activities.
(c) Accusing employees of disloyalty because they engaged
in union activity.
(d) Threatening to discharge employees if they did not end a
lawful strike.
(e) Discharging, laying off, or otherwise discriminating
against any employee for supporting the International Brother-
hood of Electrical Workers, Local Union No. 269, AFL–CIO,
or any other union.
(f) In any other manner interfering with, restraining, or co­
ercing employees 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 An-
drew McIlvaine, Daniel Spickler, Robert Fiorelli, and Richard
Spickler full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
(b) Make Andrew McIlvaine, Daniel Spickler, Robert Fio­
relli, and Richard Spickler whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the deci­
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges and layoffs,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges and layoffs will
not be used against them in any way.
(d) On request, bargain with the International Brotherhood
of Electrical Workers, Local Union No. 269, AFL–CIO as the
exclusive representative of the employees in following appro­
priate unit concerning terms and conditions of employment and,
if an understanding is reached, embody the understanding in a
signed agreement:
All full-time electricians and electrician helper/apprentices
employed by Respondent, but excluding all other employees,
and managerial employees, confidential employees, seasonal
employees, guardsand supervisors as defined by the Act.
(e) 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 designated by the Board
of its agents, all payroll records, social security payment re-
cords, 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.
JOSEPH STALLONE ELECTRICAL CONTRACTORS 1151
(f) Within 14 days after service by the Region, post at its fa­
cility in Bristol, Pennsylvania, copies of the attached notice
marked “Appendix.”20 Copies of the notice, on forms provided
by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 in­
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em­
ployees and former employees employed by the Respondent at
any time since May 15, 2001.
(g) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso­
far as it alleges violations of the Act not specifically found.