J&S Electrical Contractors, Inc

National Labor Relations Board - Administrative Judge Opinions

Sep 16, 2003

04-CA-031461 (N.L.R.B. Sep. 16, 2003)

JD -101-03
Philadelphia, PA
UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

J&S ELECTRICAL CONTRACTORS, INC.,
and Case No. 4-CA-31461
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION
NO. 269, AFL-CIO
Randy M. Girer, Esq., and Anjall P. Enjeti-Sydow, Esq.,
for the General Counsel.
Richard T. Aicher, of Trenton, New Jersey
for the Charging Party.
Raymond A. Kresge, Esq., and Andrew J. Rolfes, Esq.,
of Philadelphia, Pennsylvania for the Respondent.
DECISION
Statement of the Case
ERIC M. FINE, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania on January 21 to 24, 2003. The charge was filed by the International
Brotherhood of Electrical Workers, Local Union No. 269, AFL-CIO (the Union or Local
269) on July 19, 2002,1 against J & S Electrical Contractors, Inc. (Respondent).
Complaint issued on October 31, alleging Respondent committed several independent
violations of Section 8(a)(1) of the Act and that Respondent violated Section 8(a)(1) and
(3) of the Act by: refusing to consider for hire applicants Steve Aldrich, Richard Andra,
Tom Bates, Michael Hnatkowsky and James Huston; and by issuing a disciplinary
warning to and discharging employee Kevin Byrne.
On the entire record,2 including my observation of the demeanor of the
witnesses,3 and after considering the briefs filed by the General Counsel and
Respondent, I make the following
Findings of Fact
1 All dates are in 2002 unless otherwise indicated.
2 The General Counsel’s unopposed motion to correct the transcript, dated April 7, is
granted and received into evidence as G.C. Exh. 31.
3 In making the findings herein, I have considered the demeanor of all witnesses, the
content of their testimony, and the inherent probabilities of the record. In certain
instances, I have credited some but not all of what a witness said. See NLRB v.
Universal Camera Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on other grounds
340 U.S. 474 (1951).
JD-101-03
I. Jurisdiction
Respondent, a corporation, is an electrical contractor in the construction industry
and from its Bensalem, Pennsylvania facility it annually performs services in excess of
$50,000 outside the state of Pennsylvania. Respondent admits and I find it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act and the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
Scott Schultz is Respondent’s owner.4 In June 2002, Respondent had around 30
employees with six or seven foremen and about six jobsites. A foreman is assigned to
run a jobsite. Schultz testified Respondent’s foremen all have the same responsibilities.
In 2002, representatives of IBEW Locals 98, 269, and 380 contacted Schultz
separately in efforts to persuade him to become a union contractor. Schultz met Local
269 Organizers Tom Bates and Steve Aldrich for dinner. Schultz told all the union
officials that union wages would make Respondent non-competitive for its customer
base and he declined their recognition requests.
A. Kevin Byrne’s employment at Respondent
Local 269 sent Kevin Byrne to apply for work at Respondent on February 5.
Byrne was not a union member at the time and he did not disclose the Union referred
him. Byrne walked into Respondent’s office and talked to Schultz and Respondent Vice-
President Brian Batzel. Byrne filled out an application and took a test. While in the
office, Byrne saw a sign on the front door that said not hiring walk-ins. However, Byrne
was eventually hired on March 25, although he was a walk-in since he was not referred
by any of Respondent’s employees. Byrne was told uniforms were coming and money
would be deducted from his check to clean them. Byrne’s hours of work were 7 a.m. to
3:30 p.m. Byrne was given Respondent’s July 25, 2001, employee handbook when he
began work and he credibly testified it was the only handbook he ever received.
The July 25, 2001, handbook states at page 2, that, “Any future changes to this
handbook will be” … “issued in writing.” The handbook states at page 5, that:
The theft of time is a related and equally serious offense which may also result in
disciplinary action up to and including discharge. The theft of time occurs when
an employee is physically present in the office but, for a substantial period of
time, is not performing the work for which we, the employer are paying an hourly
rate or salary. The theft of time includes engaging in a variety of non-work
activities including excessive personal phone calls, …, excessive socializing,
conducting more-than-incidental personal business, etc.
4 Scott Schultz is referred to as Schultz. Respondent admits Schultz is a supervisor
and agent under Section 2(11) and (13) of the Act, and that, for the purposes of this
proceeding, Foreman Walt Egan is Respondent’s agent under Section 2(13) of the Act.
Egan is Schultz’ brother-in-law. Schultz’ wife Elizabeth Schultz works in Respondent’s
office. Elizabeth Schultz’ did not testify and her title is unclear on this record. Schultz
testified he thought she was Respondent’s president, and she is described as office
manager in some of Respondent’s records.
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The July 25, 2001, handbook states at page 7, under Dress Code that the employees
are to wear, “Work boots, pants and T-shirts.”
On March 27, Byrne, while driving one of Respondent’s trucks, hit an overhang at
a restaurant. Byrne left the scene of the accident, and was required to return there when
the police called Respondent’s office. Respondent was responsible for repairs at the
restaurant and there was damage to the truck.
On April 11, Byrne signed a document acknowledging receipt of Respondent’s
uniforms stating he was given 11 sets of pants and shirts. Byrne subsequently also
received t-shirts from Respondent. All of the shirts contained Respondent’s name. At
the end of April, Respondent began distributing a new handbook, dated March 18, to
new hires which contained all of the above-cited provisions in the July 25, 2001,
handbook with the exception of the Dress Code, which was replaced by the following
language at page 7 of the March 18 handbook:
All employees are required to wear the uniforms given to you. You will be
responsible for 11 sets of clothing. The employee will pay $2.85 through weekly
payroll deductions, and the company will pay the other portion….5
Byrne missed work on the following days as reflected by his attendance records:
April 17, May 14, May 20, May 21 and June 7. Schultz’ testimony reveals that he gave
Byrne an oral warning for his attendance on May 22. It is reflected in Schultz’ pre-
hearing affidavit that, “The oral warning seemed to stop the attendance problems, as he
was out only one more time after that.”
Byrne credibly testified to the following May conversation in Schultz’ office
between Schultz, Foreman Carl Sadler, and Byrne: Schultz asked Sadler and Byrne who
referred them to Respondent and how long they had been working there. Schultz said
something about the Union, and Byrne asked a question about it. Schultz and Sadler
said when they get union guys in there they start things. Schultz said he was trying not
to hire guys from the Union in his shop.6
5 While Byrne was hired on March 25, I have credited his testimony that he was
issued the July 25, 2001, rather than the March 18 handbook. I do not find Schultz’
claim that he gave Byrne the March 25, handbook to be convincing. Schultz gave no
explanation why he would recall which handbook he gave Byrne, and his recollection
about rule changes was hazy. For example, he initially testified he did not know when
he stopped issuing the July 25, 2001, handbook. He also made a statement in his pre-
hearing affidavit that, "New handbooks with the changes are not distributed until we run
out of the old handbooks.” Moreover, Respondent was not able to produce Byrne or
Jeffrey Dence’ handbook acknowledgement sheets. Dence was hired on April 15, next
in line after Byrne’s March 25 hiring date. Yet, Respondent was able to produce a series
of employee acknowledgement sheets beginning on April 22, showing that new hires at
that time began to receive the March 18 handbook. The acknowledgement sheets for
the July 25, 2001, and the March 25, handbooks contain different page numbers. I find it
more than coincidental that the two sheets Respondent could not locate were Byrne’s
and the employee hired right after him.
6 Having considered their demeanor, I have credited Byrne’s testimony over Schultz’
denial that this conversation took place. For reasons set forth in detail below, I did not
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Byrne worked at Respondent’s NBA Bank jobsite for most of his assignments
during April 29 to June 14. The NBA jobsite was located close to Byrne’s home.
Respondent Warehouse Manager Daniel Kurtz credibly testified he called Byrne on
Friday, June 14, and told Byrne his assignment would be at the Harlan House jobsite the
following week. Kurtz told Byrne he needed to report to the shop early Monday morning
to receive a ride to the site. During a subsequent phone call initiated by Byrne, Kurtz
repeated these instructions to Byrne. Despite these instructions, on Monday morning
June 17, Byrne reported to NBA site instead of Respondent’s facility. As a result, Kurtz
directed Sadler, the foreman at the NBA site, to send Byrne to Harlan House where
Byrne was tardy as he did not report there until 8 a.m.7 Schultz’ testimony reveals that
on June 18, Byrne told Schultz that he could not work at Harlan House because it
interfered with his second job. Schultz responded he needed people at Harlan House
and he denied Byrne’s request to return to the NBA jobsite.8
1. Wednesday, June 19
Byrne’s credited testimony reveals that: On Wednesday, June 19, Byrne worked
at the Harlan House jobsite. He wore blue jeans, a white t-shirt and boots, which he
wore on a frequent basis to work. He was not wearing a J & S shirt. After work, Byrne
spoke with Local 269 Organizer Aldrich who told Byrne a fax was sent to Schultz stating
Byrne was a volunteer organizer. Aldrich gave Byrne union literature, stickers, and
authorization cards. Schultz testified he received the Union’s fax on June 19, and he
noted in Byrne’s personnel file that Byrne was a union organizer.9
2. Thursday, June 20
Before reporting to work on June 20, Byrne placed three union stickers on the
rear window of his truck. Byrne arrived at Respondent’s shop at 5:30 a.m. and wore a
white t-shirt, and blue jeans. He did not wear Respondent’s uniform. Byrne left about
five copies of the Union’s brochure on Respondent’s shop desk located in front of a
glass window facing Kurtz’ office. The employees use the window to view a bulletin
board in Kurtz’ office where their assignments are posted. The Union’s brochure named
Local 269, and described the Union’s wages and benefits. Schultz testified he saw
Byrne placing the Union’s documents on the shop desk. As a result, Schultz made
another note in Byrne’s personnel file stating, “Kevin B. left these on our counter 1st thing
find Schultz to be a very reliable witness. Moreover, Sadler remained employed by
Respondent, and I find Respondent’s failure to call him creates an inference that Sadler
would not have supported Schultz’ testimony. In this regard, Respondent’s foremen are
closely aligned with management as Schultz testified they all performed the same
function, which includes conveying instructions to employees, overseeing the jobsites,
and relaying performance problems with employees at the jobsite to Schultz.
7 Byrne’s recollection was hazy as to his phone calls with Kurtz, although he
eventually admitted Kurtz called him and told him to report to the shop on June 17. Yet,
despite Kurtz’ instruction, Byrne reported to the NBA jobsite.
8 Byrne testified that, during this conversation, Schultz also said Byrne had been
doing a good job at the NBA site and he needed someone at Harlen House who could
get the job done. However, Byrne admitted Sadler found fault with at least one aspect of
his work at the NBA Bank site where he installed receptacles without using a level, and I
have no basis to credit Byrne’s testimony over Schultz’ version of the conversation.
9 Schultz testified he received the fax on June 19, but dated the file memo June 18.
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in the morning.” Schultz also placed a copy of the Union’s brochure in Byrne’s file.
Byrne and General Counsel witness Robert Teeling’s credited testimony reveals items
such as Six Flags coupons, a local pizza shop menu, and advertisements for items
employees were selling were regularly displayed on the shop desk.10 Respondent also
maintained various work-related forms on the shop desk.
On the morning of June 20, Schultz posted Local 269’s letter stating Byrne was a
union organizer on the shop window looking into Kurtz’ office. The words “Look at this”
were printed in large print highlighted next to the letter. The letter was posted on the
office side of the glass facing the shop until Byrne was discharged on June 25.11
Byrne’s credited testimony reveals: When Byrne arrived at the Harlan House
jobsite on June 20, Egan came up to Byrne around 7 a.m. in Respondent’s supply room.
Egan told Byrne whatever Byrne was selling, giving away, or doing for the Union was not
allowed on Egan’s job. Egan told Byrne not to give anything out on the job. Byrne said
he was allowed to hand things out on his lunch break. Egan replied, “Not on my job.”12
Egan said Byrne was not allowed to talk Union, and not allowed to hand anything out.
This was a one on one conversation with about 5 or 6 of Respondent’s employees
coming in and out of the small room at the time.
Byrne’s credited testimony reveals: Byrne had conversations with 4 or 5 of
Respondent’s employees at the Harlan House jobsite on June 20 about the Union,
during working time.13 The conversations were between 2 to 10 minutes each. The
employees questioned Byrne about his status as a union organizer. Byrne did not stop
working when he talked to employees. While Byrne was not assigned to work with a
partner, other employees worked in the same hallway, in the room next to him, around
the corner, and an employee named Chris worked in the same room with Byrne.14
Byrne and Teeling credibly testified employees had non-work related conversations all
day long on such topics as vacations, buying a car, and social lives.15
10 Teeling worked for Respondent from August 2001 until his August 2002 discharge.
11 I have credited Byrne’s testimony as to the nature and length of time of Schultz’
posting of the Union’s June 19, letter. Schultz admitted to posting the letter. However, I
do not credit Schultz’ claims that it was posted only 1 or 2 days, that he did not know
who wrote the remark “Look at this,” and that when he saw it he took it down. Byrne’s
testimony reveals that he saw the letter posted early in the morning on the inside of
Kurtz’ office window, the day after the Union faxed it. Considering the location of the
letter and the timing of its posting, even assuming Schultz did not write the words “Look
at this,” I have concluded he knew who did and was responsible for it being written there.
Kurtz, who appeared as a witness for Respondent, was not questioned about the letter.
12 Byrne testified, in his pre-hearing affidavit, that Egan made the following statement
on June 20, “Don't be handing out any of your literature about the Union and don't be
talking about the Union on my time. I don't care what you do on your own time, but don't
do it on my time.” Byrne explained this statement at the trial by stating he had the
impression that Egan was stating Egan’s time was 7 a.m. to 3:30 p.m., because when
Byrne brought up lunch break, Egan said, "Not on my job."
13 Byrne credibly testified he did not converse with Chris Rueth about the Union.
14 Christopher Class, a former employee of Respondent, credibly testified that he
worked in the same room with Byrne, that they discussed the Union and non-union
topics while working and that their conversations did not interfere with their productivity.
15 Similarly, Respondent officials Schultz and Egan testified employees routinely talk
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Byrne returned to the shop at the end of the day on June 20, in a company
vehicle. When he arrived at Respondent’s parking lot, Byrne’s personal truck had salt
grains on the hood and one of the truck’s Union stickers was changed to read "Proud to
be a Union Salt." Byrne showed Schultz the truck and Schultz said if he found out who
did it, Schultz would take care of it. Byrne’s truck would not start and Teeling attempted
to help him jump-start it. Byrne and Teeling credibly testified that, while they were in
respondent’s parking lot, Schultz came out and said to Byrne, “why don't you call your
buddies from Local 269 to come and help you?" Schultz left and about 10 to 20 minutes
later, Schultz returned in Schultz’ truck. Byrne credibly testified that: Schultz asked
Byrne to come over to talk to him. Schultz asked Byrne, "Why are you doing this to
me?" Byrne said, "I want to go into the Union." Byrne described certain benefits the
Union provided that Respondent did not. Schultz said he had a friend get screwed by
the Union and they are nothing but liars and back stabbers.16 Schultz said Byrne would
only work for six months a year and that “there was no place for a Union in his shop.”17
When Schultz left, Byrne called Aldrich, who came over and helped Byrne start
his truck. Byrne credibly testified that, while Aldrich was in the parking lot, Foremen
Egan and Rueth pulled up and walked into the shop. Aldrich left, and then they came
out of the shop. Egan asked Byrne if he was going to be at work tomorrow. Byrne said
yes, and asked, “why wouldn’t I?” Egan said, "Well, this whole Union thing."18
I have credited Byrne’s testimony as set forth above as to the events of June 20.
In this regard, Teeling, who I considered to be a credible witness, corroborated Byrne in
certain key respects. The fact that Teeling did not recall or hear all aspects of the
conversations in which he was just a bystander, does not undercut the fact that he,
along with Byrne, credibly testified to certain negative references to the Union by Schultz
in the face of Schultz’ denials that he made such remarks. Moreover, Byrne’s testimony,
considering his demeanor, was marked by good recall and had a ring of truth as he
admitted discussing the Union with coworkers during working time.
On the other hand, I did not find Schultz and Egan’s testimony to be very
convincing. Their testimony was somewhat inconsistent, shifted during the hearing, was
undercut by statements in pre-hearing affidavits and Schultz’ contemporaneous notes,
and had an air of exaggeration.
Schultz used the terms company time, working hours, and work time
interchangeably at the hearing in terms of his instructions about a no solicitation rule.
about personal topics while working. Egan testified, “As long as we're getting work
done, of course people chat and just talk about whatever as you're working.” Egan
testified that he talks to employees about the Philadelphia Eagles while working,
“Especially if there's a big game, sure.” Schultz testified that there is no rule against
talking on the job in Respondent’s handbook and when asked if there was a rule against
conversing with other trades at the jobsites, Schultz replied, “Not that I’m aware of.”
16 Teeling confirmed Schultz told Byrne the Union was nothing but liars and back
stabbers. Teeling could not recall the remainder of the conversation.
17 I have credited Byrne over Schultz’ denial that this conversation took place.
Schultz incredibly claimed he did not discuss the Union at all with Byrne on June 20.
18 Teeling confirmed that Egan came to the parking lot, but could not recall the
contents of any exchange between Egan and Byrne.
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Schultz initially testified that he told Byrne on June 20, he could not talk about the Union
on company time. He then testified that, at that time, he told all of Respondent’s
foremen the employees were allowed to talk about and promote the Union during lunch
time, “not during working hours.” Schultz testified he did not implement this policy until
he heard Byrne was talking about the Union. Schultz testified it was his understanding
that, under the law, employees were not allowed to promote the Union during “company
time.” Schultz testified, “If you’re talking about it, you’re promoting it. I don’t know the
difference.” When asked if the employees could talk about anything they wanted while
working, except for the Union, Schultz replied, “Yeah. I guess.” He testified the
employees could ask someone to join a bowling league during work time, but they could
not ask someone to join a union. However, Schultz’ testimony shifted as he began to
realize the inconsistency of his position. Schultz later testified it would be okay if an
employee talked about the Union during working time if they did not stop or slow down
their work or interfere with someone else’s work. Yet, Schultz admitted he told Egan and
his other foreman, without further explanation, that Byrne was not allowed “to talk or
promote the Union on company time.” Schultz testified the morning after he received the
fax announcing Byrne was a union organizer, Schultz called Egan and told him Byrne “is
allowed to talk about the union on his lunch break, his lunch time and break and that's
all, he's not allowed to promote the union on company time.”
Egan testified that, “On company time, which is work time, you're not to discuss
anything union, handout any paper works, only on your time.” Egan mistakenly claimed
this rule was in Respondent’s handbook. Egan testified he told the employees at Harlan
House this rule when they met to receive their assignments after he learned Byrne was a
union organizer. Egan testified Byrne violated the rule since employees told Egan that
Byrne was bothering them, during work time, talking about the Union’s benefits. Egan
testified he told Byrne, "You can't talk about union and you know or anything about
disrupting the job during company time, …" Egan testified almost all of Respondent’s
employees came to him about Byrne’s union solicitation, including Bob Teeling and
Chris Class. Egan testified he reported these incidents to Schultz and again spoke to
Byrne about talking about the union on company time, and Byrne kept denying it.
Byrne admitted, during his testimony, talking to Respondent’s employees about
the Union while working, and I have no doubt Egan learned of Byrne’s activities.
However, I do not credit Egan’s claims that employees complained to him about Byrne.
Contrary to Egan’s assertions, Class and Teeling credibly testified they never
complained to Egan about Byrne. Similarly, Schultz testified that on June 20,
Respondent Foreman Rueth and employee Drew Taylor told Schultz that Byrne asked
them during work time if they would like to join the Union. They said no, but Byrne
persisted in asking them. Schultz testified he assumed they had to stop working as a
result of the conversation. However, Schultz later admitted he did not determine if Byrne
interrupted their work nor ask the length of the conversation.19
19 Schultz’ testimony about Rueth and Taylor in his pre-hearing affidavit differed from
his testimony at the hearing. In the affidavit, Schultz testified on June 19, “Chris Rueth
and Drew Taylor told me they had observed Byrne talking about the Union to employees
during working time while holding literature.” Similarly, in the affidavit, concerning June
20, Schultz testified that, “Rueth and Drew Taylor again told me Byrne was talking about
the Union during working time while holding literature.” Thus, the affidavit is written in
the context that Rueth and Taylor merely observed Byrne talking to other employees, not
themselves, as Schultz claimed at the hearing.
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I have concluded it was Schultz and Egan’s intent to bar all conversations about
the Union while allowing conversations about other non-work topics between employees
while they were working. I do not find that Byrne’s conversations with Respondent’s
employees about the Union were disruptive of employees’ work any more than were
other non work related conversations that Respondent regularly permitted. I have
concluded that it was not Byrne’s conversing with his co-workers during working time
that inflamed Schultz and Egan. Rather it was the topic of his conversation.20
3. Friday, June 21
Byrne credibly testified that: On June 21, he handed out union pamphlets to four
employees during his lunch break at the Harlan House jobsite. Byrne also gave one of
the pamphlets to Rueth, and he tried to give one to Egan. Egan told Byrne, “he would
fuckin’ burn it.”21 Byrne engaged in brief conversations about the Union with employees
while they were working on June 21, as employees asked him about the Union’s wages
and benefits. Byrne testified the employees continued to work while they spoke.
Schultz issued a memo, dated June 20, to employees with their paychecks on
Friday afternoon on June 21.22 The document reads:
EFFECTIVE IMMEDIATELY-No organization documentation is to be left at any
of our jobsites or left at our facility and can only be given out during the ½ hour
lunch break.
Schultz testified the memo was a new rule and Byrne’s placing the union literature on
the shop desk on June 20, prompted him to write it stating, “I didn’t want a pile of trash
left either on the job or at the shop.” Schultz testified he also heard Byrne was
distributing union literature at the jobsite during his lunch break. Schultz testified in
addition to lunch; Respondent’s employees have a daily break from 9:05 to 9:15 a.m.
4. Monday, June 24
a. Byrne wears a union shirt to work
Byrne credibly testified that: Byrne reported to the Harlan House jobsite on
Monday, June 24, wearing a t-shirt with a small insignia stating, “Local 269 IBEW
20 I do not credit Schultz’ testimony that Egan reported to him that Byrne used his
cell phone on June 20 at various times for 5 to 10 minutes a call. Schultz failed to
document these phone call allegations against Byrne in the daily notes he was keeping
of Byrne’s activities or in his pre-hearing affidavit of September 24.
21 I do not find Byrne’s attempt to hand Egan union literature during lunch break on
June 21, inconsistent with Byrne’s testimony that on June 20, Egan told Byrne he could
not engage in such conduct. Byrne told Egan on June 20, that he was entitled to
distribute literature during his lunch break. I have concluded Egan reported this
conversation to Schultz, who had been apprised by the Union in its June 19 fax that
Byrne’s activities as an organizer were protected under the Act. I therefore find that
when Byrne told Respondent’s officials he had a right to distribute during the lunch break
on June 20, that Respondent acceded to this position the following day.
22 Byrne credibly testified his copy of the memo was stapled outside his pay
envelope, while the other employees received their copies inside their envelopes.
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Electricians" and blue jeans. He was 15 minutes late to work. Around 9 a.m., Egan
assigned Byrne and Teeling to repair wire in an outdoor pipe feeding a light post. While
they were working, Egan walked up to Byrne and asked what was up with Byrne’s shirt
and if Byrne was in the Union to which Byrne said he was not. Egan told Byrne that Tim
Shipwash, the foreman for the general contractor C & C, Inc., asked Egan why Byrne
was wearing the shirt.23 Egan told Byrne he was supposed to wear a company t-shirt.
Byrne replied the company handbook states, under dress code, that he had to wear
jeans, a t-shirt, and boots, which he was doing. Egan told Byrne he was not allowed to
wear a union t-shirt because it was not a union job.24 Teeling’s credited testimony
reveals Teeling was wearing a white t-shirt on June 24, as opposed to one of
Respondent’s shirts, but no one said anything to him about his shirt.
Byrne and Teeling’s credited testimony reveals that: Egan returned with
Shipwash about 20 minutes later to the area they were working.25 Shipwash asked
Byrne what was up with the shirt and if Byrne was in the Union to which Byrne said no.
Shipwash said Byrne was not allowed to wear those shirts on these jobs. Shipwash told
Byrne he had 5 minutes to turn the shirt inside out or be dismissed from the job and
Egan said, “You heard the man.”
Byrne credibly testified that: Byrne went into a nearby port-a-john and called
Aldrich on his cell phone. Aldrich told Byrne to turn the shirt inside out but to get
Shipwash’ name and the name of his employer. Byrne turned the shirt inside out and
then entered C & C’s trailer. Byrne asked Shipwash for his name and the name of his
employer. Shipwash stood up and said, "Get out of here, you Union-fuckin' scumbag."
As he was leaving the trailer, Byrne told Shipwash he did not like his comment. When
Byrne was about 10 or 15 feet away from the trailer, he turned and saw Shipwash
running towards Byrne with Egan following him. Shipwash got to within a foot of Byrne
and Shipwash said, “What did you say to me; what did you say?” Byrne said he did not
say anything. Egan told Byrne to tell him what he said. Byrne again denied saying
anything. The conversation went back and forth in this manner when people from other
trades started to gather. Byrne said he was going back to work, and returned to work.
Schultz and Egan’s testimony concerning this incident lacked credibility. Egan
testified that: Egan received reports from two Dual Temp employees that Byrne was
talking to them about joining the Plumber’s Union during working time. Thereafter,
Shipwash called Egan and complained Byrne had approached the excavator about
joining the Operating Engineers Union and was stopping him from working. When he
received the call, Egan saw Byrne standing next to the backhoe, talking to the excavator.
Byrne was not working. Egan approached Byrne and told him, "You're talking about the
union again and you're disrupting the job site and nothing's getting done here." I do not
find Egan’s claim that Byrne was talking to Dual Temp employees to be credible. While
from Egan’s testimony it appears that his conversation with Byrne took place in the
morning, Schultz testified Egan reported the incident with the Dual Temp employees as
occurring later in the afternoon. Moreover, there is no reference in Schultz’ notes or
affidavit to Byrne conversing with Dual Temp employees on June 24.
23 C & C, Inc. will be referred to as C & C.
24 Teeling confirmed Byrne was wearing a union t-shirt and Egan approached Byrne
and asked him what was up with his shirt. Teeling did not hear the rest of the
conversation because Egan pulled Byrne aside while Teeling continued to work.
25 Shipwash did not testify at the trial.
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Egan also testified that, when he approached Byrne, he saw Byrne was wearing
a union shirt, and told him that this violated company policy. Egan incredibly denied
telling Byrne to turn his shirt inside out, and claimed he was not present when Shipwash
gave Byrne that instruction. However, Egan’s pre-hearing affidavit contains the
statement, "I also noticed he was also out of company uniform. I said to him, ‘You are
out of uniform again, either change your shirt to J&S or turn it inside out.’" Moreover,
Respondent admits in paragraph 7(b) to its amended answer to the complaint that “after
seeing an employee out of Company uniform again, Egan told the employee to change
to a Company shirt (or if the employee did not have one, to turn the shirt inside out.)”
Schultz’ testimony similarly was unworthy of belief. He testified that: Schultz
received a call from Egan saying Shipwash reported to Egan that Byrne was disrupting
the job by talking to a landscaper about the Union and interfering with his work.26 Egan
told Schultz that when Egan approached Byrne about talking to the landscaper, Egan
noticed was Byrne was not wearing a company shirt. Schultz testified that to his
knowledge, Shipwash asked Byrne to turn his shirt inside out, but Schultz was not sure
whether Egan also gave Byrne that order. Schultz initially incredibly claimed he did not
know why Byrne was asked to turn his shirt inside out stating he did not know it was a
union shirt. Yet, Egan testified that he told Schultz that Byrne was wearing a union shirt.
Egan testified that: When Byrne entered C & C’s trailer, he spoke in a loud
manner and asked Shipwash for his name, phone number, home address and his
employer's name and number.27 Shipwash told Byrne to, "Find out for yourself" to which
Byrne replied, "Well, you're not going to like this."
However, Schultz’ notes of June 24, serve to corroborate Byrne’s testimony
rather than that of Schultz and Egan. The notes read, in pertinent part, as follows:
Later in morning Tim Shipwash asked Walt E. why Kevin was wearing a local
269 shirt. Walt E. ask Kevin why he was out of uniform. Kevin said he didn’t
have to wear shirt because it wasn’t in our policy. Tim ask Kevin to turn the shirt
inside out. Kevin called BA then turned shirt inside right. Then Kevin went into C
& C job trailer demanding Tim S. to give him name & phone # of company. Tim
told him to leave the trailer.
The notes confirm Byrne’s testimony that his wearing a union shirt lead to the June 24,
incident in that Shipwash and Egan confronted Byrne about wearing a union shirt and
not about Byrne’s alleged talking to the excavator or any other employees.28 Schultz’
notes, as well as a written verbal warning he drafted about the incident, also confirm
Byrne’s testimony that he only asked Shipwash for his name and information about his
employer, as opposed to any personal information as Schultz and Egan testified.
26 Schultz testified landscaper was another name for the excavator employee.
27 Schultz testified Egan told him that Byrne entered the trailer yelling at Shipwash to
give him his name, number, address, phone number, and the name of his employer.
28 In Schultz pre-hearing affidavit and daily notes he reported it was June 25, not
June 24, that Shultz was informed Byrne was talking to the landscaper or excavator.
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b. Byrne’s phone call with Union Official Aldrich
Byrne credibly testified that on June 24, Aldrich called Byrne a couple of minutes
after noon and they had a 5 minute phone call. After the call, Byrne went to get his
lunch and ran into Egan who said Byrne’s 20 minute phone conversation, and his 15
minute late arrival to work were going to be turned in. Byrne said he was only on the
phone 5 minutes, and it was part of his lunch break. Byrne retrieved his lunch, went
downstairs and told Teeling what happened. Byrne took 10 minutes to eat and returned
to work. Teeling credibly testified that Byrne was only on the phone for around 5
minutes and it was during lunch break.
I have credited Byrne and Teeling’s description of Byrne’s June 24 phone call
over Egan and Schultz’ claims. Egan testified that, after the trailer incident on June 24,
he saw Byrne on his cell phone during working time and he reported it to Schultz.
Schultz testified that, on June 24, Egan told him that Byrne was on the phone 30
minutes and then again for 20 minutes during work time. However, Schultz only issued
one written verbal warning for Byrne’s phone usage for June 24, for a 15 minute period,
confirming Byrne’s testimony that Egan only complained of one incident to Schultz.
c. Byrne tenders the resumes of five union applicants to Schultz
Byrne credibly testified that: Byrne returned to the shop around 5 p.m. on June
24, with five resumes provided to him by Aldrich. Byrne entered the office and told
Schultz he had some resumes for him. Byrne showed Schultz the resumes, and Schultz
said these are the same ones that were just faxed to him.29 Byrne replied that Schultz
sent a reply stating he only accepted resumes through personal referrals, so Byrne was
giving them to Schultz. Schultz did not ask Byrne any questions; he just looked at the
resumes and said, "I don't want these," and threw them on a secretary’s desk. Byrne
testified he knew the individuals named in the resumes through social gatherings but
that he had never worked with them. Byrne testified the applicants had told him they
had gone to school and were journeymen electricians.
I do not find Schultz’ testimony concerning this conversation worthy of belief.
Schultz testified Byrne came into the office and “he started rambling on, I don't even
remember what he said, he came in and threw papers down on my desk …”. Schultz
told Byrne, "I don't want nothing from you", and "I don't want to hear nothing." When
asked if he knew what papers Byrne had with him, Schultz testified, “No.” However,
Schultz later admitted that he picked up the papers and saw Bates’ resume on the top.30
Schultz denied looking at the rest of the papers testifying he did not want to accept
29 Byrne handed Schultz the resumes of alleged discriminatees Aldrich, Hnatkowsky,
Huston, Andra, and Bates. Bates had previously faxed Schultz these resumes plus
seven others on June 20, and an additional set of about 12 resumes on June 21. By
letter dated June 21, Schultz returned all of the resumes and informed Bates that, “It is
not our company policy to accept any applications via fax, phone, walk-ins or mail.” The
complaint only alleges Respondent violated the Act by refusing to consider for
employment the five applicants whose resumes Byrne hand delivered to Schultz.
30 Despite this admission at the hearing, Schultz testified in his pre-hearing affidavit
that, “Byrne never delivered resumes to my office from the following applicants (or any
other job applicants) on this day or any other day: Stephen Aldrich, Michael Hnatkowsky,
James Huston, Richard Andra, and Tom Bates.”
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anything from Byrne. Schultz testified, “It was the end of the day after I had multiple
problems with him that he comes in to hand me a referral, it looked like, you know,
papers, the first one.” Considering the shifting nature of his testimony, I do not credit
Schultz’ claim he was not aware Byrne presented him with several resumes on June 24
and I have credited Byrne’s account of this conversation.
5. Tuesday, June 25
a. Schultz issues an oral warning to Byrne
Byrne credibly testified as follows: On June 25, Byrne wore jeans, boots, and a t-
shirt with a gray American Eagle to work. Teeling wore a t-shirt saying “Diva’s
Gentleman’s Club.” Around 9 a.m. Byrne and Teeling were assigned to load a trailer
with supplies. Schultz came by and told Byrne he was informed of Byrne’s 20 minute
phone call, about Byrne’s being late, and about him not wearing a company uniform the
day before. Schultz told Byrne he had to wear a company uniform. Byrne asked to see
a written uniform policy, because under Respondent’s handbook the uniform policy was
jeans, t-shirt and boots. Byrne told Schultz to tell his bogus foreman referring to Egan to
back off him because Egan was breathing down Byrne’s neck trying to find something
wrong. Byrne spoke in a normal tone of voice. Schultz told Byrne this was an oral
warning. Teeling continued working while Schultz and Byrne spoke.
Both Schultz and Egan testified about this conversation and to the extent their
versions differed from that presented by Byrne, I have credited Byrne who, considering
his demeanor concerning the exchange, I found to be a credible witness. I do not credit
Schultz’ claim that, during this discussion, he told Byrne, “only to be talking about and
promoting the union on lunch break, I've gotten information from other people that you're
continually doing it during work time -- -- and stop disrupting the job.” While Schultz had
drafted multiple warnings for Byrne for the events of June 24, Schultz had not drafted a
warning about this aspect of Byrne’s conduct, nor did he record such a directive to Byrne
at that time in his daily notes or in his pre-hearing affidavit. Similarly, I do not credit
Egan’s testimony that Schultz told Byrne he was giving him a warning disrupting the
jobsite and job performance. Here again, I have concluded that Schultz and Egan tried
to shade their testimony to make a case against Byrne.
b. Byrne’s June 25 discharge
Byrne testified as follows: Around 12:30 p.m., Byrne and Teeling were loading
Respondent’s trailer and Schultz, Egan, and Shipwash came by. Schultz told Byrne he
had proof from three construction workers that Byrne was talking about the Union on
company time. Schultz told Byrne he was firing him for talking about the Union on
company time. Byrne asked Schultz to sign a statement to that effect, and he told
Schultz that he could not fire him for that reason. Schultz also told Byrne that Byrne had
been bad mouthing Respondent. Schultz, Egan, and Shipwash escorted Byrne off the
jobsite. Byrne admitted he could have told Schultz that Byrne got exactly what he
wanted when Schultz fired him.31 Teeling testified he was 40 feet away from the
conversation, but he heard Schultz tell Byrne he had three witnesses that Byrne was
talking about the Union on the job.32
31 Byrne was hired by a union contractor at higher pay a day after his discharge.
32 Byrne credibly testified he did not receive a warning from Egan about his work
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Teeling credibly testified that: Teeling wore a “Gentleman’s Diva Club” shirt to
work on June 25. After Schultz discharged Byrne, Schultz asked Teeling where his
company shirt was. Teeling responded he did not have any dry clothes. Schultz did not
say anything else about Teeling’s shirt, nor was Teeling directed to change his shirt.33
After Byrne’s discharge, Teeling continued, as he had before the discharge, to wear
Respondent’s uniform only about half of the time to work and no one said anything to
him about it either before or after June 25. Egan drove Teeling back to the shop from
the jobsite at the end of the day on June 25, and Egan told Teeling during the drive that,
"When you're in the Union, you'll be unemployed and out of a job."34
Schultz gave differing accounts of his discharge conversation with Byrne.
Schultz testified at the hearing that: Schultz told Byrne that Schultz had spoken to three
people who said Byrne was disrupting them at their work place, and that “you keep
promoting the union on to them during work time." Schultz told Byrne "I'm terminating
you for the reasons that you're disrupting this job on more than one occasion, you're not
wearing company uniform and that you are totally violating any kind of rule or any kind of
company policy". Byrne started to become loud and he said, "So you're firing me for
talking about the union?" Schultz denied it and said he was firing Byrne for disrupting
the project. Byrne said, "This is great", and that "I got what I wanted". Byrne made a
phone call and said on the phone that, "Hey, I just got fired for talking about the union",
and that "I have a few NLRB charges to bring up against this guy."
Schultz gave a somewhat different account of the conversation his pre-hearing
affidavit and in his June 25 notes. Schultz stated in the affidavit, “I told him: ‘You’re
terminated because you’re continuing to cause a disturbance on the job.’ He did not
give me a chance to give him any other reasons for being fired because he kept talking,
so I did not give him other reasons.” Schultz gave the following summary of the
conversation in his June 25 notes:
I asked Tim S and Walt E. to witness my talking to Kevin B. Bob Teeling was
also there. I went up to him (and) asked him if he was talking to excavator about
union on co. time. He denied, then asked if he was talking to C & C employees
about union & putting J & S Elect down. He denied it. He kept asking who, what,
when. I was trying to explain to him but he said I can’t fire him. He was non-stop
gabbing. I was trying to tell him the reason. He kept saying you fired me for
talking about union. He then call his boss (I presume) told them he got fired for
talking about union. Then said yeh he had a couple NLRB charges to file against
us.
Kevin said I was making a mistake. As we were walking him off the job site he
was saying this. Kevin said what’s a matter Scott you never been through this
performance or work pace at the Harlan House job. Byrne testified he cut holes
incorrectly at the Harlan House job, but he did not receive a warning about it. Byrne
testified Rueth told him not to worry about it, that they would throw a plate on it.
33 Schultz prepared a written verbal warning for Teeling on June 25, for being out of
uniform. Despite Teeling’s wearing a white t-shirt on June 24 and a “Gentleman’s Diva
Club” shirt on June 25, Egan testified he saw Teeling on both dates but that, “I don't
believe Bob was out of uniform, that's why I did not say nothing to Bob.”
34 While I have credited Teeling’s testimony, this comment was not alleged as a
violation of the Act in the complaint.
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before. He said this is just what he wanted, he got exactly what he wanted. He
said I was only hurting myself by firing him. . . . 35
I have concluded from the various descriptions of the conversation, as well as
Byrne’s and Teeling’s credited testimony, that Schultz told Byrne that he had talked to
three construction workers who said Byrne was talking to them about the Union on
company time. Schultz told Byrne he was firing him for talking about the Union on
company time and Byrne said he could not fire him for that. Schultz also told Byrne that
Byrne had been bad-mouthing Respondent. Byrne then made a phone call and said he
had been fired for talking about the Union and that he had some NLRB charges to file.
Following the phone call Byrne told Schultz he was making a mistake, and that Byrne
had gotten what he wanted. Byrne told Schultz he was only hurting himself by firing him.
Concerning the events on June 25, that led him to terminate Byrne, Schultz
testified that after issuing the verbal warning to Byrne on the morning of June 25, he
received a phone call from Egan. Schultz’ June 25 notes of the call reflect that:
Walt Egan called me to inform that the General contractor C & C Construction’s
Foreman Tim Shipwash told him that Kevin was putting J & S Electric down and
promoting the Union to his men and the excavator during working hours.36
Thus, Schultz’ notes reflect it was a report that Byrne was promoting the Union and
putting J & S down during working hours that caused him to return to the jobsite on June
25. Rather, than a report that Byrne was disrupting employees’ work as Schultz claimed
at the hearing.
Schultz testified that, following Egan’s call: Schultz returned to the jobsite on
June 25 and spoke to Shipwash. Schultz testified in his affidavit that Shipwash “told me
Byrne was talking about the Union to other trades.”37 Schultz testified that he asked to
talk to the employees, the employees agreed, and Shipwash brought them to C & C’s
the trailer one at a time. Schultz spoke to C. & C. employee Joe Kish, who said that,
while he was working, Byrne came over and asked him if he wanted to join the Laborers
Union. Kish also said Byrne said J & S Electric was too cheap to buy its own trailer and
things would change around here. Schultz asked if Byrne said anything else, and Kish
said, "That's about it". However, Schultz later testified that Kish also told Schultz that
Byrne had a cell phone in his hand and said "I can make a call to my boss", the phone
rang and he said, "Look, this is my boss". Byrne said, "Look, this is my union rep".
Schultz testified he also spoke to C. & C. employee Carl Richards, who basically
repeated what Kish said. Schultz testified the trailer the C & C employees were loading
was about 20 feet from the trailer Byrne was loading.
35 I do not credit Egan’s testimony that Schultz also told Byrne he was terminating
him for job performance and use of cell phone on company time. I found Egan’s
testimony in general to be unreliable and no witness corroborated these assertions.
36 Contrary to Schultz and Egan’s testimony at the hearing, I have concluded, based
on Schultz’ notes, that it was not until June 25, that Schultz received a report that Byrne
had spoken to the excavator also referred to as a landscaper employee.
37 I do not credit Schultz’ testimony at the hearing that Shipwash told him that Byrne
was interfering with two C & C employees on company time.
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Schultz testified that, on June 25, he also spoke to the landscaper or excavator
employee, who Schultz named in his affidavit as Doug Ruth. Schultz testified at the
hearing that: Ruth told Schultz that Byrne approached him on two occasions on June 24
and Byrne wanted to know if Ruth wanted join the Operating Engineers. Schultz claimed
that Ruth told Schultz that he told Byrne, "I'm not interested. I'm going to get back to
work." However, contrary to Schultz claim at the hearing that Ruth was bothered by
Byrne, Schultz testified in his affidavit that, Ruth told him that Ruth gave Byrne “his
phone number to call him about the Union.” Schultz testified Byrne was working 10 feet
away from Ruth’s location.
Schultz testified in his affidavit that:
Based on my conversations with these employees, I determined that these
conversations had occurred on working time, and had disrupted the jobsite. I
then decided to discharge Byrne. His disruption of the jobsite was one reason,
and other reasons were: violations of the uniform policy, I was upset about
having to make a second trip that day, and he told me my company policy was
not right. These were the only reasons I decided to discharge him. I did not
discharge fire him for his Union activity.
However, Schultz testified at the hearing that job performance and absenteeism
contributed to Byrne’s discharge. Schultz now testified that everything in Byrne’s file
including his driving accident factored into the discharge decision. Schultz testified that
he had received reports about performance problems with Byrne from Sadler at the NBA
jobsite, as well as reports of performance problems with Byrne’s work at Harlan House
including the improper cutting of holes for junction box installation. Schultz also testified
it took Byrne too long to fix the pole leading up to the pole lamp and the light did not
work when he finished the assignment.
B. Analysis
1. Respondent’s Section 8(a)(1) conduct
a. Respondent’s no discussion of earnings rule.
Respondent’s July 25, 2001, and March 18, handbooks contain this rule:
You and office personnel should be the only people who know how much you
earn. It is important that you keep salary related information confidential,... The
discussion of salaries will lead to immediate termination of employment.
Respondent admits, in its amended answer to the complaint, that the maintenance of
this rule is a violation of Section 8(a)(1) of the Act. Respondent’s admission is in accord
with long established Board law. See Exterior Systems, Inc., 338 NLRB No. 82, JD slip
op. at 22 (2002); Fredericksburg Glass & Mirror, 323 NLRB 165, 173-174 (1997); and
Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir. 1976). Accordingly, I find that
Respondent has violated Section 8(a)(1) of the Act by maintaining a rule prohibiting
employees from discussing their wages on penalty of discharge.
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b. Schultz informs Byrne that he does not want to hire union members.
The credited testimony reveals that sometime in May, Schultz, during a
conversation with Byrne and Sadler, stated that Schultz was trying not to hire guys from
the union in his shop. I find that Schultz violated Section 8(a)(1) of the Act by this
remark. See, Exterior Systems, Inc., supra, slip op. at 3.
c. Respondent’s no solicitation and no distributions rules
1. Legal principles
The Board regards rules prohibiting solicitation during "working hours" to be
presumptively unlawful because this term connotes “periods that include the employees’
own time,” whereas rules prohibiting solicitation during "working time" are presumptively
valid “because such rules imply that solicitation is permitted during nonworking time, a
term that refers to the employees’ own time.” Our Way, 268 NLRB 394, 394-395
(1983).38 The Board has held rules that preclude solicitation or talking about the Union
on “company time” are presumptively unlawful as they can be “reasonably construed as
encompassing both working and nonworking time…”. See Litton Systems, 300 NLRB
324, 324 (1990), enfd. 949 F.2d 249 (8th Cir. 1991), cert. denied 503 U.S. 985 (1992);
Kenmore Mercy Hospital, 319 NLRB 345, 346; (1995), and Industrial Wire Products, 317
NLRB 190 (1995). In Jensen Enterprises, Inc., 339 NLRB No. 105, slip op. at 3-4
(2003), the Board stated:
It is settled law that an employer may forbid employees from talking about a
union during periods when the employees are supposed to be actively working, if
that prohibition also extends to other subjects not associated or connected with
their work tasks. However, an employer violates the Act when employees are
forbidden to discuss unionization, but are free to discuss other subjects unrelated
to work, particularly when the prohibition is announced or enforced only in
response to specific union activity in an organizational campaign. Willamette
Industries, 306 NLRB 1010, 1017 (1992); Orval Kent Food Co., 278 NLRB 402,
407 (1986).
In Teletech Holdings, Inc., 333 NLRB 402, 403 (2001), the Board held pertaining
to “No-Distribution Rules” that:
A rule prohibiting distribution of literature on employees' own time and in
nonworking areas is presumptively invalid. ….The mere existence of an overly
broad rule of this kind tends to restrain and interfere with employees' rights under
the Act, even if the rule is not enforced. (Citations omitted.)
As with no solicitation rules, the Board has held promulgating a no distribution
rule, maintaining it, and threatening to enforce it solely in response to union organizing is
unlawful. See Waste Management of Palm Beach, 329 NLRB 198, 200 (1999); and Mini-
Togs, 304 NLRB 644, 651 (1991), enfd. in relevant part 980 F.2d 1027 (5th Cir. 1993).
Similarly, when an employer implements a rule, which only prohibits distribution of union
literature without limiting other distribution it violates Section 8(a)(1) of the Act. See
38 The presumptions of validity or invalidity of the no solicitation rules can be rebutted
by appropriate evidence. Our Way, supra fn. 6.
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C.O.W. Industries, 276 NLRB 960 (1985); and Montgomery Ward, 269 NLRB 598
(1984). Finally, the disciplining of employees for union activities pursuant to an unlawful
no solicitation or no distribution rule is violative of Section 8(a)(1) and (3) of the Act. See
Laidlaw Transit, Inc., 315 NLRB 79, 83; Our Way, supra at 395; Automotive Plastic
Technologies, 313 NLRB 462 (1993); Switchcraft Inc., 241 NLRB 985, 986 (1979), enfd.
631 F.2d 734 (7th Cir. 1980); Boland Marine & Mfg. Co., 225 NLRB 824 (1976), affd.
562 F.2d 1259 (5th Cir. 1977); and Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962).
2. Respondent’s June 20 oral no solicitation and no distribution rules
On June 19, Aldrich faxed Schultz a letter stating Byrne is a “Voluntary Union
Organizer who is engaged in organizing activities protected by the National Labor
Relations Act.” Schultz posted the letter in the shop to employees before Byrne reported
to work on June 20. When Byrne arrived at the Harlan House jobsite on the morning of
June 20, Foreman Egan, as directed by Schultz, confronted Byrne in Respondent’s
supply room, which was a relatively small area with other employees walking in and out.
Egan told Byrne that whatever he was selling, giving away or doing for the Union was
not allowed on Egan’s job. Byrne responded he could hand things out on his lunch
break. Egan said, “Not on my job.” Egan said Byrne was not allowed to talk union and
he was not allowed to hand anything out.
I find Egan’s comments violated Section 8(a)(1) of the Act in several respects.
He banned all union related distributions at the jobsite, including Byrne’s right to
distribute during his lunch break and break, and in non-work areas and his remarks only
applied to union distributions.39 He also banned all conversations about the union
although both he and Schultz admitted that employees were regularly allowed to
converse about non-work topics while they were working. Moreover, Egan’s remarks
were initiated in direct response to Byrne’s union activities.40 The Board's test for
determining Section 8(a)(1) violations does not turn on the success of the attempted
coercion. Rather, the test is whether the employer engaged in conduct, which
reasonably tends to interfere with the free exercise of employee rights under the Act.41
Thus, I have concluded that Egan’s comments were coercive, and the fact that Byrne
subsequently did not abide by Egan’s dictates does not detract from unlawful nature of
Egan’s remarks. This is particularly so since Egan testified that his remarks were not
directed just to Byrne but to all of the employees at the jobsite.
Schultz testified that, as a result of his being notified Byrne was a union
organizer, Schultz told all of his foremen on June 20, that the employees were allowed to
talk about and promote the Union during lunch time, but “not during working hours.”
However, Schultz testimony vacillated as to what he actually told the foremen as he
testified he told Egan that Byrne could only talk about the Union during his lunch time
and break, and that he could not promote the Union on “company time.” He later
testified that he told Egan that Byrne was not allowed to promote the Union on “work
time.” Schultz testified that if an employee is talking about the Union he was promoting
39 See, Teletech Holdings, Inc., supra at 403, and Waste Management of Palm
Beach, supra at 200
40 See, Jensen Enterprises, Inc., supra at 3-4; Litton Systems, supra; Kenmore
Mercy Hospital, supra; and Waste Management of Palm Beach, supra.
41 See Saginaw Control & Engineering, Inc., 339 NLRB No. 7, JD slip op. at 23
(2003); and American Freightways Co., 124 NLRB 146 (1959).
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it, as Schultz did not see a difference between talking and promoting. Egan testified that
under the Respondent’s policy the employees could not discuss anything about the
Union, or handout any papers during company time, which was work time. Egan
testified that he conveyed his understanding of the rule to all of the employees who
worked at Harlan House on June 20. Following his announcement of the rule, Egan
testified he reported to Schultz that Byrne was talking about the Union during “company
time.” Schultz also testified that Foreman Rueth, along with another employee, reported
to Schultz on June 20 that Byrne was talking about the Union during working time.
I find Schultz violated Section 8(a)(1) of the Act by, on June 20, as a result of
Byrne’s union activity, announcing to his foreman and thereafter maintaining a rule
prohibiting employees from talking about the Union, while allowing employees to
converse about other non work related topics on working time.42 The testimony of
Schultz, Egan, Byrne, and Teeling establishes that Respondent had allowed and
continued to allow on a daily basis non-work related conversations between employees
while they were working, and on June 20 only barred conversations about the Union.
3. Respondent’s June 21 written no distribution rule
Schultz posted the Union’s letter June 19 letter in the shop for employees
viewing on the morning of June 20. The Union’s letter states, in pertinent part that
“Byrne is a Volunteer Union Organizer who is engaged in organizing activities protected
by the National Labor Relations Act.” Thereafter, on June 20, Schultz saw Byrne place
copies of the Union’s pamphlet on Respondent’s shop desk, which theretofore had been
used as a repository for non work related postings by employees. On June 21, Byrne
handed out union pamphlets to employees at the Harlan House jobsite during lunch
break. Byrne gave one to Egan, who told Byrne that, “he would fuckin’ burn it.
At the end of the day on June 21, the employees were issued the following new
rule, dated June 20, under Schultz’ signature:
EFFECTIVE IMMEDIATELY-No organization documentation is to be left at any
of our jobsites or left at our facility and can only be given out during the ½ hour
lunch break.
Schultz testified Byrne’s placing the union literature on the shop desk and distribution of
the Union literature at the jobsite during the employee’s lunch break prompted Schultz to
write the rule in that he did not want trash left in the shop or at the jobsite.
I find Respondent, by its June 21 implementation and maintenance of its written
no-distribution rule violated Section 8(a)(1) of the Act. The rule was implemented in
direct response to Byrne’s union activity.43 The rule is also overly broad in that it limits
distributions to employees’ lunch break, thereby prohibiting distributions during their daily
10 minute break, as well as before and after work at Respondent’s facility. Thus, the
42 As a result of the constant vacillations in the testimony of Schultz and Egan the
precise wording of the rule cannot be determined on this record. However, regardless of
the wording, the rule was discriminatory as it targeted only conversations about the
Union, and it was implemented as a direct result of employees’ union activity.
43 See Waste Management of Palm Beach, 329 NLRB 198, 200 (1999).
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rule goes beyond limiting distributions during working time and in work areas.44 The rule
is also discriminatory on its face since on June 20, Schultz had posted to employees a
letter stating that Byrne is a “Volunteer Union Organizer” engaging in “organizing
activities.” Thus, the June 21 no-distribution rule applying restrictions only to the
distribution of “organization documentation” is a clear reference to union literature. The
rule by its terms still allows for most if not all of the previously posted employee materials
to remain on the shop desk, with the exception of Byrne’s union pamphlets.45
d. On June 24, Egan directs Byrne to remove his union shirt
Teeling was hired in August 2001, and Byrne was hired on March 25, 2002.
They each received a handbook dated July 25, 2001. The handbook provides, that “Any
future changes to this handbook will be in writing. The handbook states under Dress
Code, that employees are to wear, “Work boots, pants and T-shirts.”
Respondent at the end of April 2002 began to distribute a new handbook dated
March 18, 2002, to new hires. The new handbook revised the employee dress code,
stating, “All employees are required to wear the uniforms given to you.” Neither Byrne
nor Teeling were presented with a copy of the new handbook, nor were they told that the
old handbook had been revised. However, after their employment began, Respondent
issued them 11 sets of long sleeve shirts and pants. Schultz testified Respondent’s
pants were gray khakis and the long sleeve shirts were gray and blue striped with a
J & S Electrical insignia on the pocket. Respondent subsequently issued five t-shirts to
its employees. Egan testified the t-shirt was gray, with J & S Electrical Contractor’s, Inc.,
written on the pocket and across the back.
When Byrne first received Respondent’s uniforms, he wore them to work
regularly because they were long sleeve shirts and it was still cold. When the weather
changed, Byrne began to wear his own t-shirts to work, in a variety of colors rather than
Respondent’s long sleeve shirts. A couple of weeks prior to his June 25 discharge,
Byrne received Respondent’s J & S t-shirts. Byrne credibly testified that he only wore
Respondent’s t-shirts a couple of times, because they were too large. Byrne did not
wear Respondent’s uniform at all during the period of June 17 to June 25, while he was
working at the Harlan House jobsite. Byrne credibly testified that, prior to June 24, no
foreman said anything to Byrne about not wearing Respondent’s uniform.46
Teeling credibly testified that, after he received Respondent’s uniforms, there
were occasions he wore the shirt without the pants, or the pants without the shirt, and
there were occasions when he wore neither to work. Teeling testified when he was not
wearing Respondent’s shirt, he wore baseball shirts, white t-shirts, the shirts of another
electrical contractor, and a gentlemen’s club shirt with the word Diva on it. Teeling only
wore Respondent’s uniform about half of the time to work. Similarly, General Counsel
witness Charles Jablanofsky, Jr., who worked for Respondent as a foreman at the time
44 See Teletech Holdings, Inc., 333 NLRB 402, 403 (2001), 2001,
45 See Jensen Enterprises, Inc., Inc., 339 NLRB No. 105 (2003); Kenmore Mercy
Hospital, 319 NLRB 345, 346 (1995); Litton Systems, 300 NLRB 324 (1990); C.O.W.
Industries, 276 NLRB 960 (1985); and Montgomery Ward, 269 NLRB 598 (1984).
46 I do not credit Schultz’ claim that Respondent official Kurtz had warned Byrne on
one occasion about being out of uniform, as Kurtz, who appeared as a witness for
Respondent, failed to corroborate Schultz’ testimony.
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of his testimony, initially testified he did not enforce any rule requiring employees to wear
uniforms. He testified that if Byrne showed up out of uniform he probably would not
have said anything to him. Jablanofsky testified that while Respondent’s uniform called
for the employees to wear company pants and shirts, the employees mainly only wore
the shirts in that they would come to work “in jeans and stuff like that.” Jablanofsky
testified he never called management to report that someone was out of uniform.47
Byrne’s credited testimony reveals that on June 19 and 20, he wore blue jeans, a
white t-shirt, and boots to work. Schultz saw Byrne the morning of June 20, placing a
union pamphlet on Respondent’s desk at the shop. Egan also approached Byrne on the
morning of June 20, and told him that he could not give anything out related to the Union
on the job, and that he could not talk about the Union on the job. They both also saw
Byrne at the end of the day on June 20 in Respondent’s parking lot.48 Neither Schultz
nor Egan said anything to Byrne about being out of uniform on June 19, 20, or 21.
On Monday, June 24, Byrne wore a t-shirt to work that had a small insignia
stating, “Local 269 IBEW Electricians,” and jeans. Teeling wore a white t-shirt that day.
Egan gave Byrne and Teeling their job assignment that morning to work on a pipe
containing wiring for an outside pole lamp. While they were working, Egan came up to
Byrne and told him that C & C foreman Shipwash had asked Egan why Byrne was
wearing the shirt. Egan asked Byrne asked if Byrne was in the Union. Egan told Byrne
he was supposed to wear a company shirt. Byrne replied Respondent’s handbook only
required that he wear jeans, a t-shirt, and boots. Egan told Byrne he was not allowed to
wear any shirts with writing and he was not allowed to wear a union shirt because it was
not a union job. Egan left and then returned with Shipwash around 20 minutes later.
Shipwash asked Byrne what was up with the shirt and if he was in the Union. Shipwash
told Byrne that he was not allowed to wear those type of shirts on these jobs, and that
Byrne had 5 minutes to turn the shirt inside out or he would be dismissed from the job.
Egan followed Shipwash’ instruction with the remark, “You heard the man.”
Teeling wore a “Diva’s Gentlemen’s Club” shirt to work on June 25, in Shipwash,
Schultz and Egan’s presence. Egan acknowledged seeing Teeling on June 24 and 25,
however, Egan did not say anything to Teeling about being out of uniform on those
dates. Shipwash also did not say anything to Teeling about being out of uniform on
June 24 or 25. Schultz, after discharging Byrne on June 25, approached Teeling on that
date and asked where his company shirt was. Teeling responded that he did not have
any dry clothes. Schultz did not say anything else to Teeling about his shirt.
In E & L Transport Co., 331 NLRB 640, 647, (2000), it was stated that:
47 Jablanofsky also testified in his pre-hearing affidavit that he did not enforce
Respondent’s uniform policy. I therefore, considering the fact that he appeared
uncomfortable testifying in Schultz’ presence, do not credit Jablanofsky’s subsequent
change in his testimony at the hearing when he stated that if he saw an employee
without Respondent’s shirt on he would tell him to wear it, or that if he saw an employee
repeatedly not wearing the shirt he would probably report it to Schultz.
48 It is also likely Schultz and Egan saw Byrne on June 19 and 21 since Byrne was
reporting to the shop to obtain a ride to work, and Egan gave him his assignments at the
jobsite. Schultz saw Byrne on the afternoon of June 21, as Byrne sought Schultz’
assistance in locating his paycheck.
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The Board and courts recognize (an) employee’s right under Section 7 of the
Act to wear and display union insignia on their person while at work. Absent
“special circumstances,” the promulgation or enforcement of a rule prohibiting the
wearing of such insignia is violative of Section 8(a)(1) of the Act. Republic
aviation Corp. v. NLRB, 324 U.S. 793, 801-803 (1945).
* * * *
Special circumstances warranting a prohibition may include instances where
the wearing of union insignia has caused interruption in production, disciplinary
problems, or disharmony within the work force…. Retail and service
establishments have sometimes been permitted to regulate employee
appearance to foster a particular public image. See United Parcel Service, 195
NLRB 441 (1972); Burger King Corp v. NLRB, 725 F.2d 1053 (6th Cir. 1984).
Even in health care settings, where employers arguably have an interest in
maintaining standards of dress and professional decorum, special circumstances
are carefully weighed. See Casa San Miguel, 320 NLRB 534, 540 (1995). There,
rules banning the wearing of union insignia must be justified by a demonstration
of an adverse impact on patient care in those areas where the ban applies. Vista
Hill Foundation, 280 NLRB 298 (1986).
The Board has held that, “An employer violates the Act when it directs, instructs
or orders another employer with whom it has business dealings to discharge, layoff,
transfer, or otherwise affects the working conditions of the latter’s employees because of
the union activities of said employees. See Dews Construction Corp., 231 NLRB 182,
182, fn. 4 (1977), enfd. 578 F.2d 1374 (3rd Cir. 1978). Moreover, employees of a
subcontractor who regularly and exclusively work at the premises of an employer other
than their own are not strangers to that property but are rightfully on it pursuant to their
employment relationship. As such, their Section 7 rights cannot be unlawfully abridged
by another employer asserting control over the property or contractual control over the
project on which they are working. See, Gayfers Department Store, 324 NLRB 1246,
1250-1251 (1997); and Capitol EMI Music, 311 NLRB 997, 1000, fn. 22 (1993), enfd. 23
F. 3d 399 (4th Cir. 1994), holding that “an employer is properly held liable for its own
deliberate actions that affect an individual’s employment status with another employer.
Thus, an employer that successfully requests the termination of an employee for
discriminatory reasons violates the Act and can be required to make the employee whole
for loss of pay, even if it is not that employee’s employer.” The Board went on to state in
Capitol EMI that, “The entity acquiescing in the request would not be guilty of an unfair
labor practice, however, if it were not aware of the motive behind the request.” Id at
1000, fn. 22.
In the instant case, prior to June 24, Egan and Schultz allowed Byrne as well as
Teeling to report to work out of uniform at Harlan House, and Foreman Jablanofsky’s
testimony along with that of Teeling and Byrne establishes that Respondent’s uniform
policy was not enforced. However, Egan, on June 24, joined in Shipwash’ request for
Byrne to remove his union shirt, and Schultz condoned Egan’s conduct by subsequently
disciplining Byrne for wearing the union shirt, as well as for Byrne’s entering C & C’s
trailer in a situation in which it was obvious that Byrne was seeking information to file an
unfair labor practice charge over Shipwash’ discriminatory action in directing Byrne to
remove the shirt. Thus, Respondent’s officials were aware of the discriminatory nature
of Shipwash’ conduct and joined in his actions with the purpose of preventing
Respondent’s employees and other employees at the jobsite from being organized.
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I find that Respondent violated Section 8(a)(1) of the Act when Egan approached
Byrne on June 24, and told him Shipwash asked why Byrne was wearing a union shirt,
and then stated Byrne was not supposed to be wearing a union shirt because it was not
a union job. I find that Respondent also violated Section 8(a)(1) of the Act when
Shipwash and Egan approached Byrne shortly thereafter and Shipwash told Byrne to
turn his shirt inside out or he would be dismissed from the job, and Egan ratified
Shipwash’ instruction by telling Byrne, “You heard the man.” See E & L Transport Co.,
supra. I find that Respondent, although it had a uniform policy failed to enforce it, until
its officials learned that Byrne wore a union shirt to one of its jobsites. Moreover, while
Schultz questioned Teeling about wearing his “Gentlemen’s Diva “shirt on June 25,
Schultz did not tell him to turn the shirt inside out as Egan had done to Byrne the day
before concerning his union shirt. Thus, Respondent’s targeting Byrne for being out of
uniform only when he wore a union shirt was clearly discriminatory rule enforcement
against his union activities. I have concluded that since it has been established
Respondent did not regularly enforce its uniform policy that Schultz’ questioning of
Teeling about his shirt on June 25, was a direct result of Teeling’s working with Byrne,
who had drawn Shipwash, Schultz, and Egan’s wrath for wearing a union shirt.49
In concluding Respondent discriminatorily enforced its uniform policy against
Byrne, I have considered nine written oral warnings Schultz testified he issued to
employees on various occasions for being out of uniform, but do not find them to be
persuasive in establishing that Respondent regularly enforced its uniform policy. Schultz
never tendered these warnings to employees, nor did he tell the employees that the
warnings were being placed in their files. As Teeling testified, Schultz just asked Teeling
where his company shirt was on June 25. When Teeling responded that he did not have
any dry clothes, Schultz did not say anything else about Teeling’s shirt. Thus, Schultz
did not tell Teeling that a warning was being placed in his file. Moreover, three of the
nine warnings for being out of uniform were written for Foremen Egan, Rueth, and
Robbins indicating, as Jablanofsky, Byrne, and Teeling testified Respondent’s foremen
did not enforce its uniform policy. This is confirmed by Schultz, Egan and Respondent’s
other foremen’s failure to react to either Byrne or Teeling consistently being out of
uniform until Byrne wore a union shirt to work.50 I do not find that Respondent has
established any “special circumstances” in informing Byrne that he could not wear a
union shirt to work, and instructing him to remove it shortly thereafter. The fact that
Respondent joined C & C in issuing these instructions to Byrne, which I have concluded
were unlawful, does not serve as a defense. See Control Services, 303 NLRB 481, 485-
486 (1991), enfd 961 F.2d 1568 (3rd Cir. 1992); and Dews Construction Corp., supra at
182, fn. 4 (1977).51
49 Assuming C & C’s policies are relevant, there was no claim that C & C had a
policy requiring its employees to wear uniforms or the employees of its subcontractors to
wear uniforms. In fact Shipwash said nothing to Byrne about being out of uniform until
he wore a union shirt. Shipwash also said nothing to Teeling on June 25, about wearing
the “Gentleman’s Divas” shirt although both Teeling and Shipwash were present when
Schultz discharged Byrne.
50 I also note that five of the nine warnings were drafted after Byrne was discharged.
51 There was no complaint allegation against C & C before me. Counsel for the
General Counsel represented C & C entered into a pre-hearing settlement agreement.
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2. Respondent’s Section 8(a)(1) and (3) conduct
a. Byrnes’ June 25 discipline and discharge
Under the Board’s Wright Line52 requirements to prove that an employee was
disciplined or discharged in violation of Section 8(a)(3) of the Act, the General Counsel
must persuade, by a preponderance of the evidence, that an employee's protected
conduct was a motivating factor in the employer's decision. If such a showing is made,
the burden of persuasion shifts “to the employer to demonstrate that the same action
would have taken place even in the absence of the protected conduct.” Wright Line,
supra at 1089. See also Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). The
elements commonly required to support a finding of discriminatory motivation are union
activity, employer knowledge, and employer animus. Farmer Bros. Co., 303 NLRB 638,
649 (1991), enfd. mem. 988 F.2d 120 (9th Cir. 1993).
Byrne was hired March 25. On March 27, he was involved in an accident with
one of Respondent’s vehicles. Byrne missed 5 days of work between April 17 and June
7, and he received an oral warning about his attendance on May 22 from Schultz.
Sometime in May, Schultz told Byrne that he was trying to avoid hiring union members. I
have found Schultz statement to be violative of Section 8(a)(1) of the Act.
During the period of April 29 to June 14, Byrne worked at the NBA jobsite, which
was close to his home. On June 14, Byrne was told to report to the shop on June 17, as
he was being transferred to another jobsite, which would have given him a much longer
commute. Byrne ignored the instruction and reported to the NBA jobsite on June 17. As
a result, Byrne was an hour late when he finally arrived at his new assignment.
On June 19, Union Organizer Aldrich faxed a letter to Schultz stating Byrne was
a volunteer union organizer. Upon receipt of the letter, Schultz began making a daily log
concerning Byrne’s activities in particular noting his organizer status.
On the morning of June 20, Schultz posted Aldrich’s letter about Byrne’s union
organizer status on a shop window in plain view of Respondent’s employees. The words
“Look at this” were written in large print next to the letter showing the significance which
Respondent placed to its receipt. On the morning of June 20, Byrne placed union
stickers on his truck, which he parked in Respondent’s lot, while taking one of
Respondent’s vehicles to his jobsite. Byrne also placed union literature on a shop desk
regularly used by employees and other entities for non work related advertisements.
Schultz saw Byrne place the union literature on the desk, and took a copy and placed it
in Byrne’s personnel file while making a file note of Byrne’s conduct. That same
morning, Schultz called Egan and notified him of Byrne’s union status. Schultz also
promulgated a new rule, which he testified he conveyed to all of his foremen prohibiting
employees from talking about the union while they were working. By Schultz and Egan’s
admission, employees were allowed to talk about all other topics while working, and I
have concluded that, considering the timing of the rule, and its discriminatory nature, that
its implementation and maintenance were violative of Section 8(a)(1) of the Act. I also
52 See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
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found that Egan violated Section 8(a)(1) of the Act when he told Byrne on the morning of
June 20, that what he was selling, giving away or doing for the Union was not allowed on
his job, and that Byrne could not give out anything on the job, including during Byrne’s
lunch break. I found that Egan also violated Section 8(a)(1) of the Act when he told
Byrne that he was not allowed to talk about the Union on the job. Byrne did not abide by
Egan’s instructions and spoke to around four or five employees about the Union on June
20, during working time. Respondent foreman Egan and Rueth learned of Byrne’s
activity and reported it to Schultz.53
When Byrne returned to the shop on the afternoon of June 20, salt was placed
on the hood of his truck, and one of the union stickers on his truck was changed to read
“Proud to be a Union Salt.” Byrne complained of these actions to Schultz, who denied
responsibility. However, when Byrne subsequently could not start his truck, Schultz
came out to the parking lot and asked Byrne why he did not call his buddies from Local
269 to help him. Schultz left and returned and then called Byrne over to Schultz’ truck.
Schultz asked Byrne why he was doing this to Schultz. Byrne said he wanted to go
union and described some benefits the Union provided that were not provided by
Respondent. Schultz told Byrne the Union were liars and back stabbers, and that Byrne
would only work 6 months out of the year. Schultz told Byrne there was no place for a
union in his shop.54 Later on Egan came into the parking lot and asked Byrne if he was
going to show up for work tomorrow. Byrne asked why he would not and Egan replied,
“Well this whole Union thing.”
On June 21, Byrne distributed union pamphlets to his co-workers during their
lunch break. When Byrne tried to tender one to Egan, Egan responded that he would
“fuckin burn it.” Schultz was informed of Byrne’s distribution of union literature during
lunch that day. At the end of the day on June 21, the employees were given a new
written work rule with their paychecks. The rule prohibited “organization documentation”
from being left at Respondent’s jobsites and its facility, and limited the distribution of
these documents to the employees’ ½ hour lunch. Schultz admitted that Byrne’s union
activity prompted him to adopt the rule. I found that the rule was unlawfully broad,
discriminatory on its face, and in view of its adoption and maintenance in response to
Byrne’s union activities it was violative of Section 8(a)(1) of the Act.
On June 24, Byrne wore a shirt to work with a small Local 269 logo on it. This
attracted the attention of Shipwash, the foreman of the jobsite general contractor, and
Egan. Egan approached Byrne and told him that Shipwash asked why he was wearing
the shirt, and that Byrne was supposed to be wearing Respondent’s shirt. Byrne told
Egan Respondent’s handbook said he had to wear jeans, a t-shirt, and boots, which he
was doing. Egan said Byrne could not wear a union shirt because it was a non-union
job.55 Egan left and returned with Shipwash. During the conversation that ensued
Shipwash asked Byrne if he was in the Union and told Byrne he was not allowed to wear
those types of shirts on these jobs and that he had 5 minutes to turn the shirt inside out
53 For reasons set forth above, I do not credit Egan or Schultz’ claims that these
conversations were disruptive of employees’ work.
54 While these remarks were not alleged as unfair labor practices in the complaint, I
still find they constitute evidence of animus toward union activities. See Stoody Co., 312
NLRB 1175, 1182 (1993); and Meritor Automotive, Inc., 328 NLRB 813, 183 (1990).
55 While Byrne was wearing jeans, nothing was said to him about his failure to wear
the pants that were also part of Respondent’s uniform.
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or be dismissed from the job. Egan followed Shipwash’ comments by stating, “You
heard the man.” I found that Egan violated the Act by telling Byrne he could not wear a
union shirt on the job and by his seconding Shipwash’ instruction that Byrne turn shirt
inside out. While Respondent had a uniform policy in its new handbook, neither Byrne
nor Teeling were given a copy of the handbook, nor was the uniform policy enforced.
After he was instructed to turn his shirt inside out, Byrne phoned Aldrich on his
cell phone, who directed him to comply with the order but to find out Shipwash name and
the name of his employer. Byrne turned his shirt inside out and then entered C & C’s
trailer. Byrne asked Shipwash, in Egan’s presence, for his name and the name of his
employer. Shipwash said “Get out of here, you Union fuckin’ scumbag.” As he left the
trailer, Byrne responded that he did not like Shipwash’ remark. Shipwash, accompanied
by Egan, ran after Byrne and when Shipwash caught up to him, he repeatedly asked
what Byrne said. Egan also demanded that Byrne tell Shipwash what Byrne said.
A couple of minutes after noon, Byrne received a phone call from Aldrich, at
which time he had a 5 minute discussion. After the conversation, Byrne went to get his
lunch. He met Egan who said Byrne’s 20 minute phone call and his 15 minute late
arrival to work were going to be turned in.56 Byrne responded he was only on the phone
5 minutes and it was during his lunch break.
On the afternoon of June 24, Byrne tendered five resumes to Schultz. Schultz
said these were the same resumes that had recently been faxed to him as the Union had
previously faxed them, among others, to Schultz. Schultz had sent them back to the
Union stating they were not acceptable. Schultz told Byrne he did not want the resumes
and threw them on a secretary’s desk. Four of the five resumes Byrne tendered were
from union officials.
During the course of June 24 and 25, Schultz authored a series of written verbal
warnings on pre-printed forms for Byrne’s file. Byrne was never given a copy of these
documents nor told they were in his file. Four of the five warnings are dated June 24
and one is dated June 25. All the warnings state they were given on June 25. One of
the June 24 warnings states Byrne showed up 15 minutes late for work; the next states
he wore a “non appropriate company uniform”; the next states he used his “personal
phone during work hours, on phone for 15 minutes while supposed to be working”; and
the final June 24 warning states Byrne, “went into customer job trailer and demanded
their name and phone # after was asked to turn shirt inside out. Was told to leave then
said He’ not going to like this.” The June 25 written verbal warning reads, “Kevin was
told by Walt E on 6/24/02 to wear company uniform. Kevin did not wear his shirt. I told
him he needed to wear uniform & reread his co policy/ he was arguing with me about it.”
Based on Byrne’s credited testimony: On the morning of June 25, Schultz came
to the Harlan House jobsite and told Byrne he was informed of Byrne’s 20 minute phone
call, about Byrne’s being late, and about him not wearing a company uniform the day
before. Schultz told Byrne he had to wear a company uniform. Schultz ignored Byrne’s
request to see something in writing stating that was the uniform policy. Yet, Byrne
correctly protested that under the only handbook Byrne had been given, he was in
compliance with Respondent’s dress code, which only required he wear jeans, a t-shirt
56 Byrne and Teeling commuted together to the site and were 15 minutes late.
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and boots, with no limitation placed on the type of t-shirt. Schultz told Byrne this was an
oral warning.
I find that the General Counsel has made a prima facie case under the Board’s
Wright Line decision that the June 24 and 25 written verbal warnings and oral warning
Schultz issued to Byrne on June 25 were violative of the Act. Schultz and Egan were
aware of Byrne’s union activity, and by their conduct and statements, including several
independent violations of Section 8(a)(1) of the Act, demonstrated strong animus
towards that activity. I also find that the warnings issued to Byrne were a direct result of
his participation in protected conduct.
The June 24 and 25 written verbal warnings for Byrne being out of uniform came
as a direct result of Byrne wearing a union t-shirt on June 24. As set forth above,
Respondent’s uniform policy was not routinely enforced, and both Schultz and Egan had
seen Byrne out of uniform prior to June 24 without comment. It was only after he wore a
union t-shirt that they reacted. Accordingly, I find that Schultz’ written and oral warnings
to Byrne for being out of uniform were discriminatorily motivated and violative of Section
8(a)(1) and (3) of the Act. See E & L Transport Co., 331 NLRB 640, 640 (2000), where
the enforcement of an invalid rule pertaining to the wearing of union stickers was found
to violate Section 8(a)(1) and (3) of the Act. 57
I find that Schultz’ June 24, written verbal warning to Byrne for entering C & C’s
trailer is violative of Section 8(a)(1) and (3) of the Act. Byrne’s action in entering the
trailer was part of his union activity. For after Shipwash and Egan had unlawfully
instructed Byrne to turn his union shirt inside out, Union Organizer Aldrich told Byrne to
comply but to find out Shipwash’ name and the name of his employer. Byrne did so by
entering the trailer and posing those questions to Shipwash. Shipwash responded by
stating, “Get out of here, you Union fuckin’ scumbag.” As he left the trailer, Byrne
responded that he did not like Shipwash’ remark. I do not credit Egan’s testimony that
Byrne burst into the trailer, or addressed Shipwash in a rude manner. In this regard,
Egan and Schultz falsely attempted to color the incident by claiming Byrne requested
personal information from Shipwash, and I found Byrne made no such request. Byrne
was clearly attempting to procure employment related information from Shipwash to
57 Similarly, I find a written oral warning Schultz placed in Teeling’s file for being out
of uniform on June 25, although not alleged in the complaint, is violative of Section
8(a)(1) and (3) of the Act. The warning reads, “Bob was in location and heard Walt E
telling Kevin B. about company uniforms. Then showed up the next day without co.
shirt.” Teeling was not told he was receiving a warning, or that a warning was being
placed in his file. Teeling’s warning is closely related to conduct alleged to be unlawful
in the complaint, and it was fully litigated at the hearing as it was placed into evidence by
Respondent as part of its defense for the warning it issued to Byrne for similar conduct.
(R. Exh. 16). See D & F Industries, Inc., 339 NLRB No. 73, slip op at 3, fn. 13 (2003);
and Cardinal Home Products, Inc., 338 NLRB No. 154, slip op at 3-4 (2003), where
violations were found for conduct not alleged in a complaint. I find that Teeling’s June
25, warning for being out of uniform came as a result of a clamp down because of
Byrne’s wearing a union shirt on June 24, therefore was the direct result of Byrne’s union
activity. The fact that Teeling was not active in the union does not prevent a finding that
he was discriminated against because of the union activity of another employee. See
Link Mfg. Co., 281 NLRB 294, 299, fn. 8 (1986), enfd. 840 F.2d 17 (6th Cir. 1988), cert.
denied 488 U.S. 854 (1988).
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perfect the filing of an unfair labor practice charge pertaining to C & C and Respondent
because of their unlawful attempt to restrict his union activity. In fact, Schultz’s June 24
notes reflect “Kevin called BA then turned shirt inside right. Then Kevin went into C & C
job trailer. Demanding Tim S. to give him name & Phone # of Company.” I do not find
that Byrne acted in a manner in requesting this information that would remove his
conduct from the Act’s protection. Moreover, the Board has long held that an employer
cannot provoke an employee because of his participation in protected activity to the
point where the employee commits acts of misconduct, and then rely on such acts to
discipline the employee. See, Indian Hills Care Center, 321 NLRB 144, 152, 154-155
(1996); Romar Refuse Removal, 314 NLRB 658, 671 (1994); Teskid Aluminum Foundry,
311 NLEB 711, 720 (1993); 299 Lincoln Street, Inc., 292 NLRB 172, 203 (1988), Tubari
Ltd., 287 NLRB 1273, 1285 (1988) enfd. 869 F.2d 590 (3d Cir. 1989); Well-Bred Loaf,
Inc., 280 NLRB 306, 319, fn. 51 (1986); NLRB v. Vought Co., 788 F.2d 1378, 1383-84
(8th Cir. 1986); NLRB v. Steinerfilm, 669 Fd. 845, 852 (1st Cir. 1982); and NLRB v. M&B
Headwear, 349 F.2d 170, 174 (4th Cir. 1965).
Byrne was on his cell phone after receiving a call from Aldrich for about 5
minutes on June 24, during the course of his noon lunch break. Following this phone
call, Egan falsely accused Byrne of being on the phone for 20 minutes, and during the
same conversation he told Byrne that Egan was going to report the phone call as well as
Byrne’s 15 minute late arrival to work that day to Schultz. When Schultz arrived at the
jobsite on the morning of June 25, he told him Byrne he was giving him a warning, in
part for his 20 minute phone call and late arrival to work the day before. Schultz made
two references to this phone call in his daily log concerning Byrne. One reference
states, “Kevin Byrne –6/24/02 calling labor board. 12:20 returned for lunch. 11:50 –
12:15 on phone. Sat for 10 min then ate lunch.” Schultz’ other reference in his notes to
Byrne’s phone activity on June 24, was that Egan saw Byrne on the phone from 11: 50
a.m. to 12:18, during which time Byrne was talking to a “union person.” At the time, he
made these notes concerning Byrne’s phone call, Schultz was aware that Byrne had
been instructed by Shipwash and Egan to turn his union shirt inside out in order for
Byrne to remain on the job. Schultz was also aware that Byrne had come into C & C’s
trailer and asked Shipwash information relating to his employer with likelihood that this
information was being solicited for the filing of an unfair labor practice charge since
Aldrich had recently sent Schultz a letter informing him that Byrne was engaged in
“organizing activities protected by the National Labor Relations Act.” I find that Schultz
was aware that Byrne’s phone call on June 24, was in furtherance of his union activities
and that Schultz violated Section 8(a)(1) and (3) of the Act by issuing a written verbal
warning for Byrne’s file on June 24, and verbally warning Byrne on June 25 for engaging
in this protected conduct since I have credited Byrne and Teeling that the phone call
Byrne made was only 5 minutes and during his lunch break.
Moreover, even assuming that I were to find that the phone call began 10
minutes before the start of the noon lunch break, Respondent’s handbook only
prohibited “excessive personal phone calls.” I have concluded that this policy was not
regularly enforced as Egan, a foreman of 10 years, testified that Respondent’s policy
prohibited all personal phone calls. Egan’s lack of familiarity with Respondent’s
regulations confirms Teeling’s testimony and my other findings at the hearing that
Respondent attempted to implement new regulations and tighten the enforcement of
others as a result of Byrne’s union activity.58
58 Respondent tendered one verbal written warning for an employee being on “the
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I also find that Schultz violated Section 8(a)(1) and (3) of the Act for issuing
written verbal warnings to Byrne and Teeling and an oral warning to Byrne for showing
up late 15 minutes late on June 25. Egan told Byrne he was reporting Byrne’s tardiness
in the same breath as he told him he was reporting Byrne’s phone call to the Union.
Byrne had shown up an hour late on June 17, when he reported to the wrong jobsite, yet
nothing was placed in Byrne’s file over this incident, which took place before
Respondent was informed Byrne was a union organizer. Thus, Respondent has not met
its burden of showing that it had a fixed tardiness policy or that it would have written
either Byrne or Teeling up for being 15 minutes late on June 24, absent an intent to
tighten the enforcement of its rules to go after Byrne because of his union activities.59
I find the General Counsel has made a prima facie case that Byrne’s June 25,
discharge was motivated by his union activity. After leaving the jobsite the morning of
June 25, Schultz returned around 12:30 p.m. that day. The credited testimony
establishes that Schultz, accompanied by Shipwash and Egan, told Byrne that he had
talked to three construction workers who said Byrne was talking to them about the Union
on company time. Schultz told Byrne he was firing him for talking about the Union on
company time and Byrne said he could not fire him for that. Schultz also told Byrne that
Byrne had been bad-mouthing Respondent. Byrne then made a phone call and said he
had been fired for talking about the Union and that he had some NLRB charges to file.
Following the phone call Byrne told Schultz he was making a mistake, and that Byrne
had gotten what he wanted. Byrne told Schultz he was only hurting himself by firing him.
Schultz’ testimony reveals that the precipitating event causing him to discharge
Byrne was, after warning Byrne that morning; Schultz received a call from Egan. Schultz
notes of the call reveal that, Egan told him “that the General Contractor C & C
Construction’s foreman Tim Shipwash told him that Kevin was putting J & S Electric
down and promoting the Union to his men and the excavator during work hours.”60 As a
result, Schultz returned to the jobsite, and asked Shipwash to meet with two C & C
laborers and the excavator employee.61 Upon meeting with these employees Schultz
was told, as reflected in his June 25 notes, that Byrne announced he was a union
organizer trying to get Respondent to go union, asked them if their company was union,
phone too much making personal calls on company time.” (R. Exh. 17). The memo by
its terms establishes the employee in question was making multiple calls and does not
support Respondent’s position that Byrne would have been disciplined here for one
phone call, absent his participation in union activity.
59 While there was no complaint allegation concerning Teeling’s written verbal
warning for being late on June 24, Teeling was never told he was receiving this warning.
I have concluded that the warning was closely related to the complaint allegations in that
it was an outgrowth of the discriminatory conduct towards Byrne and was fully litigated
as Respondent introduced it into evidence as part of its defense to the unfair labor
practice complaint. (R. Exh. 32). See D & F Industries, Inc., supra, slip op at 3, fn. 13
(2003); Cardinal Home Products, Inc., supra, slip op at 3-4 (2003); and Link Mfg. Co.,
supra, at 299, fn. 8.
60 I do not credit Schultz’ testimony at the hearing that Egan reported to him that
Byrne was disrupting the jobsite. I found Schultz to be prone to exaggeration.
61 Schultz states in his affidavit that when he met with Shipwash, Shipwash merely
told him “Byrne was talking about the Union to other trades.” Shipwash then named
three employees.
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and told them they should go union. Schultz notes reflect that Byrne said Respondent
was too cheap to buy a job trailer, that he was the union representative and things were
going to change around there.62 It is stated in Schultz’ notes that while talking to the two
C & C laborers Byrne received a phone call from a union representative, showed them
the phone screen, said it was his boss, and then started talking on the phone.63
I find that Schultz, Egan, and Shipwash harbored strong animus to Byrne’s union
activity for the reasons set forth above. I have credited Byrne, as corroborated in part by
Teeling, that Schultz told him he was fired for talking about the Union on company time.
I do not credit Schultz’ uncorroborated claim that Byrne disrupted the work of C & C’s
employees or the excavator or that he in any way harassed anyone. Byrne’s
assignment on June 25, included taking materials from Respondent’s storage room at
the site, and loading it into Respondent’s trailer. Schultz’ testimony reveals that the C &
C laborers were loading a trailer just 20 feet away from the trailer Byrne was loading.
Schultz testimony reveals that the excavator was working just 10 feet away from Byrne
on June 24. Schultz and Egan testified that employees would frequently converse about
non-work topics while working without objection from Respondent, and Egan testified he
joined in these conversations. Schultz also testified he was aware of no rule at the site
prohibiting his employees from talking to the employees of other contractors. Yet,
shortly after it was announced that Byrne was a union organizer Schultz adopted a
discriminatory rule prohibiting employees from discussing the Union, while they were
allowed to continue to discuss other non work topics while working.
62 I reject the counsel for the General Counsel’s motion at page 36, footnote 1 of
their post-hearing brief to amend the complaint to allege Schultz’ questioning of C & C
employees Kish and Richards and excavator employee Ruth about their conversations
with Byrne violated Section 8(a)(1) of the Act. It is unexplained in counsel’s motion why
they waited until their post hearing brief dated April 7, 2003, to make this motion when
Schultz stated in his pre-hearing affidavit of September 2, 2002, to the Region that he
engaged in this conduct. Moreover, there is no contention in General Counsel’s brief
that Respondent was ever placed on notice of their intent to move to amend the
complaint. Schultz questioned these employees after receiving a complaint from the
general contractor about Byrne’s conduct at the jobsite. An argument can be made that
in questioning these employees Schultz was trying to investigate the complaint. In fact,
at one point in their brief counsel for the General Counsel argue that Schultz’ failure to
adequately investigate allegations against Byrne evidences a discriminatory intent. I do
not find Schultz’ questioning of these employees is based on the same legal theory as
the complaint allegations leading up to Byrne’s discharge, that Respondent was put on
notice of the claim, or that it has been fully litigated.
63 Byrne testified generally that he did not have any conversations with other trades.
However, he was never specifically asked whether he spoke to the C & C laborers or the
excavator who worked in close proximity to Byrne. Noting that Schultz’ testimony about
these conversations is hearsay, I nevertheless find that Byrne did talk to these
employees, and it was reported to Schultz as set forth above. In this regard, Schultz
documented the conversations in his notes, and credibly testified he returned to the
jobsite on June 25 as a result of these conversations. However, I do not credit Schultz’
uncorroborated claims that Byrne bothered these employees or disrupted their work. I
found that Schultz was prone to exaggeration. Moreover, Schultz testified in his affidavit
that the excavator told Schultz that he gave Byrne his phone number for Byrne to call
him about the Union a strong indication that the employee was not upset by Byrne’s
conversing with him.
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I have concluded that Respondent has failed to establish that Byrne’s
conversation with the C & C employees and the excavator about the union disrupted
their work or was in any way different from non work related conversations between
employees that were carried on a daily basis. Rather, I find it was the substance of the
conversation, not how it impacted on work performance, that Respondent’s officials and
Shipwash found objectionable. I also find that Byrne’s informing these employees that
Respondent was too cheap to have a job trailer and that things would change around
there as a result of his union activities was part of his protected conduct as access to a
trailer at the jobsite and whatever amenities it would provide to employees clearly related
to their terms and conditions of employment.64 Since I have concluded for the reasons
set forth above that the warnings Schultz prepared for Byrne on June 24 and 25 were
unlawfully motivated, I do not find that they serve to aid Respondent in rebutting the
General Counsel’s prima facie case that Byrne was unlawfully discharged.
Similarly, I do not find persuasive Schultz’ attempts to cite Byrne’s attendance
and job performance in support of his discharge. Schultz, although he mentioned these
matters in his pre-hearing affidavit, did not cite them as a reason for discharging Byrne in
his affidavit, nor did he mention them to Byrne when he fired him. Rather, he told Byrne
he was being discharged for talking about the union on company time. In support of his
claims of poor job performance, Schultz cited a memo he claimed to be written by
Sadler, Byrne’s foreman at his prior jobsite, which contained several alleged
performance related problems by Byrne. However, Sadler was not called to testify and
Byrne only admitted to some of the items described in the memo, but denied others
including a representation that it was a consistent problem that Sadler had to repeat
himself on the simple instructions to Byrne, sometimes 5 to 8 times a day. Given the
fact that Byrne was transferred to another jobsite following his stint with Sadler, and that
Foreman Jablanofsky had previously worked with Byrne with no problem with his work, I
find some of the representations in the Sadler’s memo suspect and do not credit them
except to the extent they were admitted by Byrne. Byrne, an apprentice, also admitted
to making a mistake at the Harlan House jobsite in terms of drilling some holes for the
placement of receptacles. However, he testified that Foreman Rueth told him not to
worry about it and that it was easily correctible. In any event, I do not credit Schultz’
claim at the hearing that Byrne’s discharge was caused by his work performance or
attendance, since that claim is undercut by the testimony in his affidavit, and the events
that lead Schultz to return to the jobsite on June 25 to discharge Byrne.
I also reject Respondent’s argument in its post-hearing brief that Byrne, unhappy
with his transfer away from his home, orchestrated the discharge to secure a better
paying union job. While Byrne told Schultz that he got was he wanted, he also protested
the discharge and told Schultz that he was making a mistake in firing him. I do not view
Byrne’s remarks that he got what he wanted as anything more than statements of an
64 Byrne made this remark in the context of an ongoing labor dispute and he did not
disparage the quality of Respondent’s product. Byrne’s remarks were not of the nature
that would remove his conduct from the Act’s safeguards. See, Mountain Shadows Golf
Resort, 330 NLRB 1238, 1241 (2000); Cincinnati Suburban Press, 289 NLRB 966, 967-
968 (1988); and Emarco, Inc., 284 NLRB 832, 833 (1987). Moreover, I have concluded
that Respondent’s animus was directed towards Byrne’s union activities, and that he
would not have been discharged for a complaint to employees that Respondent did not
have a job trailer, absent his participation in protected union activities.
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aggrieved employee who had just been unlawfully discharged and otherwise
discriminated against attempting to strike back at the perpetrator of the unlawful conduct.
Moreover, based on the credited evidence, I have concluded that it was Respondent that
orchestrated the unfair labor practices against Byrne, as opposed to any scheme that
Byrne brought to fruition by his own conduct. Accordingly, Respondent has not rebutted
the General Counsel’s prima facia case and I find that Byrne was discharged because of
his union activity in violation of Section 8(a)(1) and (3) of the Act.65
2. Refusal to consider for hire
In Wayne Erecting, Inc., 333 NLRB 1212, 1212 (2001), the Board, citing FES.
331 NLRB 9 (2000), stated the following for refusal-to-consider for hire allegations:
In order to establish a discriminatory refusal-to-consider violation under the
FES framework, the General Counsel must show:
(1) that the respondent excluded applicants from a hiring process; and (2) that
antiunion animus contributed to the decision not to consider the applicant
for employment.
The Board went on to state that, “Once the General Counsel has met his initial burden
for the refusal to consider…the burden shifts to the respondent to show that it would not
have considered…the applicants even in the absence of their union activity or affiliation.”
Id at 1212. In Nelson Electrical Contracting Corp,. 332 NLRB 179, 180 (2000), enfd. 171
LRRM 2512 (2nd Cir. 2002), the Board rejected a respondent's defense that it chose to
rely on transfers of its current employees from other projects, former employees, or
"positive referrals from other sources," as sources for new hires where it departed from
the policy when it advertised for employees, hired individuals who were not former
employees, and hired without positive referrals.
Respondent maintains a two page undated typewritten document entitled “J & S
Electrical Contractors, Inc. HIRING POLICY”, which reads, in pertinent part that:
The Company does not accept applications from “walk-ins”, or by unsolicited fax

or mail delivery.

The Company will only accept applications from:

An applicant whose character, reputation and/or experience is personally
known to the owner(s); or
An applicant who is referred by a current employee. The referring
employee must know the applicant personally and be personally familiar
with his/her character, reputation, skills, ability and/or experience. The
65 While Schultz’ notes and affidavit reveal that a C & C official directed Schultz to
remove Byrne from the jobsite, Schultz did not testify at the hearing that this instruction
had anything to do with his firing Byrne, nor did Respondent raise this as a defense.
Even if Respondent had raised this as a defense, I would have rejected it. Schultz notes
and affidavit establish Schultz was aware C & C’s directive came as a result of Byrne’s
protected union activities. Respondent has failed to establish it protested the directive,
or that it could not have placed Byrne at another jobsite as Schultz testified that he had
five or six jobsites with 30 employees at the time. Moreover, I find that regardless of any
directive from C & C, Respondent was motivated by its own animus towards Byrne’s
union activities, which independently caused Schultz to discharge Byrne.
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referring employee must give the name and phone number so we may
contact the referral if we are hiring at that time. No dropping of resumes
will be accepted.
The typewritten hiring policy also provides that preference will be given to, “Applicants
whose skills and ability and/or work experience are personally known to the owner(s) or
the referring employee.”66
Schultz testified at the hearing that Respondent accepted walk-ins in 2002 until
around the end of March or beginning of April, when its written hiring policy changed to
the one set forth above. Schultz testified that, prior to that time, an applicant did not
need to know the owner or a current employee in order to be hired. However, in Schultz
pre-hearing affidavit, he testified it was in January or February 2002 that the hiring policy
changed and that before that time Respondent accepted walk-ins.
Byrne applied for work at Respondent on February 5, and interviewed with
Schultz and Batzel. While there was a sign on Respondent’s front door on February 5
stating not hiring walk-ins, Byrne was hired on March 25, although he knew no one
employed by Respondent at the time he applied.
Byrne referred Gene Kehoe for employment with Respondent. Kehoe applied for
work on April 1, and was hired on May 7. Byrne spoke to Batzel about Kehoe. Batzel
asked Byrne how he knew Kehoe. Byrne told Batzel he had never worked with Kehoe
and that he knew Kehoe through Kehoe’s father. Batzel did not ask Byrne anything
about Kehoe’s character and reputation.67 Kehoe was discharged on May 28, for failing
to show up for work. Schultz initially testified that he did not know anyone referred
Kehoe, and that he thought Kehoe was a walk-in.
Some time toward the end of May, Local 269 Organizer Tom Bates contacted
Schultz about Respondent becoming a union shop. Schultz met Bates and Organizer
Aldrich for dinner, but informed them he was not interested in becoming a union shop.
Thomas Nelson’s application is dated April 5, and he was hired May 20. Schultz
did not know if anyone referred him for employment. Brian Naticchione’s application is
date June 3. Schultz testified a former employee who left Respondent’s employ in 1999
referred him.68 Dan Seymour’s application is dated July 15 and he was hired August 19.
Neither an owner nor a current employee referred him. Rather, Larry Leary who worked
for another contractor referred him. Shawn Johannessen’s application is dated
September 10, and he was hired September 16. Schultz testified a personal friend
rather than a current employee referred him. Timothy Leary’s application is dated
October 15, although Respondent’s records reveal he was hired October 5. Schultz
testified that Larry Leary also referred Timothy Leary.
66 There was no evidence in the record that this policy had been distributed to
Respondent’s employees.
67 Byrne at first testified that he spoke to Schultz about Kehoe’s application, but then
credibly corrected his testimony and said he spoke to Batzel not Schultz. Byrne’s
testimony as to his conversation with Batzel is undenied, as Batzel did not testify.
68 While Naticchione’s name was omitted from a list of individuals Respondent
employed, the import of Schultz’ testimony was that he was hired in 2002.
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Schultz testified, as set forth in his affidavit, that in May he announced to
employees during a company meeting that Respondent was hiring, and as stated in his
affidavit, “they could refer any qualified people they knew.” On June 20, Bates faxed
Schultz 12 resumes including those of alleged discriminatees Bates, Aldrich, Andra,
Hnatkowsky, and Huston. Bates faxed Schultz an additional set of about 12 resumes on
June 21. Schultz returned all of the resumes by letter dated June 21, and informed
Bates that, “It is not our company policy to accept any applications via fax, phone, walk-
ins or mail. Therefore, none of these applications will be accepted…”.
Byrne’s credited testimony reveals that following work on June 24, Byrne entered
the office and told Schultz he had some resumes for him. Byrne showed him Bates,
Aldrich, Andra, Hnatkowsky, and Huston’s resumes, and Schultz said these are the
same ones that were just faxed to him. Byrne replied that Schultz sent a reply stating he
only accepted resumes through personal referrals, so Byrne was giving them to Schultz.
Schultz did not ask Byrne any questions; he just looked at the resumes and said, "I don't
want these," and threw them on a secretary’s desk.
I find that the General Counsel has established a prima facie case that
Respondent refused to consider Bates, Aldrich, Andra, Hnatkowsky, and Huston
applications as a result of their union affiliation. That Respondent harbored strong
animus towards employees union activities is clear on this record by the numerous
violations of the Act it committed, including Schultz informing Byrne that he did not want
to hire union members. Schultz was also aware that Byrne was a voluntary union
organizer at the time he tendered the resumes and that Byrne was tendering resumes of
union adherents by Schultz’ remarks that these resumes had previously been faxed to
him. The resumes on their face also establish the applicant’s union status and Schultz
admitted to seeing Bates’ resume.
I find that Respondent has failed to meet its burden of establishing that it would
not have considered these applicants absent their union activity. Schultz testimony at
the hearing along with that contained in his affidavit, reveals that he did not know when
Respondent adopted its alleged hiring policy of only accepting applicants referred by
current employees or known to the owner. It is stated in his affidavit that the policy was
adopted in January or February. Lending credence to the affidavit is Byrne’s credited
testimony that when he applied on February 5, there was a sign on Respondent’s office
stating not accepting walk-ins. Nevertheless, Respondent not knowing Byrne was sent
by the Union, violated its own posting and hired him although he was not referred by a
current employee or known to the owner. Respondent’s records and Schultz testimony
reveal that after the implementation of Respondent’s hiring policy it hired five applicants
in violation of the policy in that they were not personally known to the owner or referred
by a current employee. Byrne’s testimony reveals that Batzel hired Kehoe on May 7,
based on Byrne’s referral, although Byrne told him that he had never worked with
Kehoe. Moreover, Schultz did not object to Kehoe’s hiring, although he initially testified
that he thought Kehoe was a walk-in. (Tr. 37).
Respondent argues at page 45 of its brief that:
…J & S clearly satisfied its burden of demonstrating it would not have considered
the individuals whose resumes Byrne handed to Schultz even in the absence of
their union activity or affiliation due to the disruptive conduct engaged in by Byrne
on the day he offered the resumes to Schultz and the fact that the one person
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Byrne previously referred for employment had never showed up for work and
ultimately abandoned his job after working for J & S for less that three (3) weeks.
I reject these contentions. I find that what Respondent labels as disruptive conduct by
Byrne on June 24, was his engaging in protected union activity, for which Respondent
discriminated against him in violation of Section 8(a)(1) and (3) of the Act. Respondent
is referring to Kehoe when it contends Byrne referred an employee who abandoned his
job. However, Schultz initially testified that he did not know anyone referred Kehoe that
he thought he was a walk-in. Schultz subsequently changed his testimony after hearing
Byrne testify that he referred Kehoe for employment. Schultz then claimed that Byrne’s
referral of Kehoe who did not work out at Respondent was part of the reason he refused
to accept the applications Byrne tendered on June 24, 2002. I do not credit Schultz’
contention that he refused to accept the resumes of the union applicants because Kehoe
had not worked out as an employee, as I have concluded that he did not know Byrne
referred Kehoe until after Byrne testified at the trial in January 2003. Moreover,
Respondent’s raising this argument demonstrates the pretextual nature of its position.69
Accordingly, I find Respondent violated Section 8(a)(1) and (3) of the Act by refusing to
consider Bates, Aldrich, Andra, Hnatkowsky, and Huston for employment since
Respondent harbored strong union animus, and did not enforce its typewritten hiring
policy, which it in relied on to reject their applications. See, Nelson Electrical Contracting
Corp., supra.
CONCLUSIONS OF LAW
1. J & S Electrical Contractors, Inc., the Respondent, is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local Union No. 269, AFL­
CIO, the Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act:
(a) By maintaining a rule requiring employees to keep their salaries confidential
and that the discussion of salaries would lead to immediate termination.
(b) By informing employees that Respondent did want to hire applicants
affiliated with the Union.
(c) By promulgating and enforcing a discriminatory no-solicitation rule
prohibiting employees from talking about the Union during work time, while allowing
other nonwork-related discussions by employees because its employees engaged in
union activity.
(d) By promulgating and enforcing a discriminatory and overly broad no-
distribution rule prohibiting employees from leaving “organization documents” at job sites
and the shop, while not restricting the distribution of other non-work related documents,
and by limiting the distribution of “organization documents” to employees’ lunch break
because its employees engaged in union activity.
(e) By informing employees they could not hand out union literature or talk
about the union at the job or distribute union literature during their lunch break.
(f) By discriminatorily enforcing work rules to prohibit employees from wearing
union shirts, and instructing employees to turn their union shirts inside out.
69 Respondent’s reliance on Exterior Systems, Inc., 338 NLRB No. 82 (2002), is
misplaced. There, applicants there were rejected because they engaged in misconduct
when they applied. There is no showing that any of the applicants here engaged in
misconduct.
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4. Respondent violated Section 8(a)(1) and (3) of the Act:
(a) By since June 24, 2002, refusing to consider for hire applicants Steve
Aldrich, Richard Andra, Tom Bates, Michael Hnatkowsky and James Huston because of
their union affiliation.
(b) By on or about June 24 and 25, 2002, issuing verbal written warnings and
oral warnings to employee Kevin Byrne because of his union activities and in order to
discourage other employees from engaging in union activities.
(c) By on or about June 24 and 25, 2002, issuing verbal written warnings to
employee Robert Teeling because employees engaged in union activities and in order to
discourage other employees from engaging in union activities.
(d) By on or about June 25, 2002, discharging employee Kevin Byrne because
of his union activities and in order to discourage other employees from engaging in union
activities.
REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. The Respondent having discriminatorily
discharged an employee, it must offer him reinstatement and make him whole for any
loss of earnings and other benefits, computed on a quarterly basis from the date of his
discharge to the date of a 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 Horizons for the Retarded, 283 NLRB 1173 (1987).
I have also found that Respondent discriminatorily refused to consider for hire
five applicants whose resumes were tendered on June 24, 2002. Counsel for the
General Counsel specifically stated at the hearing that there was no allegation that
Respondent discriminatorily refused to hire these applicants. Yet, Counsel for the
General Counsel also tendered into evidence an exhibit listing the names and positions
for employees who were hired by Respondent after June 24, 2002, without contending
that any of the alleged discriminatees should have been hired instead of the named
employees. Accordingly, I exclude the discriminatees for consideration for employment
in my recommended order for all positions hired on or after they applied that were known
or should have been known to the General Counsel prior to the close of the unfair labor
practice hearing on January 24, 2003. See PNEU Electric, 332 NLRB 616, 617 (2000),
enfd. in relevant part 309 F.3d 843 (5th Cir. 2002).
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended70
ORDER
The Respondent, J & S Electrical Contractors, Inc., of Bensalem, Pennsylvania,
its officers, agents, successors, and assigns, shall
70 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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1. Cease and desist from
(a) Maintaining a rule requiring employees to keep their salaries confidential
and that the discussion of salaries will lead to immediate termination.
(b) Informing employees that Respondent does not want to hire applicants
affiliated with the Union.
(c) Promulgating, maintaining, and enforcing a discriminatory no-solicitation
rule, which prohibits employees from talking about the Union during work time, while
allowing other nonwork-related discussions by employees, because its employees
engage in union activity.
(d) Promulgating, maintaining, and enforcing a discriminatory and overly broad
no-distribution rule prohibiting employees from leaving “organization documents” at job
sites and the shop, while not restricting the distribution of other non-work related
documents, and by limiting the distribution of “organization documents” to employees’
lunch break because its employees engage in union activity.
(e) Informing employees they cannot hand out union literature or talk about the
union on the job, or distribute union literature during their lunch break.
(f) Discriminatorily enforcing work rules prohibiting employees from wearing
union shirts, and instructing employees to turn their union shirts inside out.
(g) Refusing to consider for employment applicants because of their union
affiliation.
(h) Issuing verbal written warnings, oral warnings, discharging or otherwise
discriminating against employees because of their union activities, the union activities of
other employees, or in order to discourage employees from engaging in union activities.
(i) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act.
a. Rescind the rule requiring employees to keep their salaries confidential.
b. Within 14 dates from the date of this Order, delete from employee manuals
which are distributed to new employees the rule that requires employees to keep their
salaries confidential on penalty of discharge; and either distribute to current employees
copies of the manual with this deletion, or make such deletion in the copies which they
now possess.
c. Within 14 days from the date of this Order, offer employee Kevin Byrne full
reinstatement to his former position or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or privileges
previously enjoyed.
d. Make Kevin Byrne whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him, in the manner set forth in the remedy
section of this decision.
e. Within 14 days from the date of this Order, remove from its files any
reference to the unlawful discharge and warnings to Kevin Byrne, and the unlawful
warnings to Robert Teeling, and within 3 days thereafter notify the employees in writing
that this has been done and that the discharge and/or warnings will not be used against
them in any way.
f. Consider Steve Aldrich, Richard Andra, Tom Bates, Michael Hnatkowsky, and
James Huston for future job openings in accord with nondiscriminatory criteria, and
notify the Charging Party, International Brotherhood of Electrical Workers, Local No.
269, AFL-CIO, and the Regional Director for Region 4 of future openings in positions for
which the discriminatees applied or substantially equivalent positions. If it is shown at a
compliance stage of this proceeding that Respondent but for the failure to consider
Aldrich, Andra, Bates, Hnatkowsky, and Huston on June 24, 2002, would have selected
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any of them for any job openings arising after the hearing closed on January 24, 2003,
or for any job openings arising before the hearing closed that the General Counsel
neither knew nor should have known had arisen, Respondent shall hire them for any
such position and make them whole for any losses, in the manner set forth in the remedy
section of this decision.
g. Within 14 days from the date of this Order, notify Aldrich, Andra, Bates,
Hnatkowsky, and Huston in writing that any future job application will be considered in a
nondiscriminatory way.
h. Within 14 days from the date of this Order, remove from its files any
reference to the unlawful refusal to consider for employment Aldrich, Andra, Bates,
Hnatkowsky, and Huston, and within 3 days thereafter notify them in writing that this has
been done and that the refusal to consider them for employment will not be used against
them in any way.
i. Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place to be
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
j. Within 14 days after service by Region 4, post at its facility in Bensalem,
Pennsylvania, copies of the attached notice marked "Appendix."71 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 and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Respondent on or after May
1, 2002.
k. 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.
Dated, Washington, D.C. September 16, 2003
____________________________
Eric M. Fine
Administrative Law Judge
71 If this Order is enforced by a judgment of a United States court of appeals, the
words in the notice reading “Posted by Order of the National labor Relations Board” shall
read “Posted Pursuant to a Judgment of the United Stated Court of Appeals Enforcing
and Order of the National Labor Relations Board.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities

WE WILL NOT maintain a rule requiring employees to keep their salaries
confidential and that the discussion of salaries will lead to termination.
WE WILL NOT inform employees that we do not want to hire applicants affiliated
with the International Brotherhood of Electrical Workers, Local Union No. 269, AFL-CIO
or any other union.
WE WILL NOT promulgate, maintain, or enforce a discriminatory no-solicitation
rule, which prohibits employees from talking about the Union during worktime, while
allowing other nonwork-related discussions by employees because our employees
engage in union activity.
WE WILL NOT promulgate, maintain, or enforce a discriminatory and overly
broad no-distribution rule prohibiting employees from leaving “organization documents”
at job sites and the shop, and limiting the distribution of “organization documents” to
employees’ lunch break.
WE WILL NOT inform employees they cannot hand out union literature or talk
about the union on the job, or distribute union literature during their lunch break.
WE WILL NOT discriminatorily enforce work rules to prohibit employees from
wearing union shirts, or instruct employees to turn their union shirts inside out.
WE WILL NOT refuse to consider applicants for employment because of their
union affiliation.
WE WILL NOT issuing verbal written warnings, oral warnings, discharge or
otherwise discriminate against employees because of their union activities, the union
activities of other employees, or in order to discourage employees from engaging in
union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the rule requiring employees to keep their salaries confidential.
WE WILL delete from employee manuals which are distributed to new employees
the rule that requires employees to keep their salaries confidential on penalty of
discharge; and either distribute to current employees copies of the manual with this
deletion, or make such deletion in the copies which they now possess.
WE WILL within 14 days from the date of the Board’s Order, offer employee
Kevin Byrne full reinstatement to his former position or, if that position no longer exist, to
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a substantially equivalent position, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make Kevin Byrne whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the manner set forth in the
remedy section of the Board’s decision.
WE WILL within 14 days from the date of the Board’s Order, remove from our
files any reference to the unlawful warnings to Kevin Byrne and Robert Teeling, and to
the unlawful discharge of Kevin Byrne, and within 3 days thereafter notify the employees
in writing that this has been done and that the discharge and/or warnings will not be
used against them in any way.
WE WILL consider Steve Aldrich, Richard Andra, Tom Bates, Michael
Hnatkowsky, and James Huston for future job openings in accord with nondiscriminatory
criteria, and notify them, Charging Party International Brotherhood of Electrical Workers,
Local No. 269, AFL-CIO, and the Regional Director for Region 4 of future openings in
positions for which they applied or substantially equivalent positions. If it is shown at a
compliance stage of the Board’s proceeding that but for the failure to consider them,
they would have been selected for any other openings as specified in the Remedy
section of the Board’s decision, we shall hire them for any such position and make them
whole, with interest for any losses of earnings and benefits.
WE WILL, within 14 days from the date of Board’s Order, notify Aldrich, Andra,
Bates, Hnatkowsky, and Huston in writing that any future job application will be
considered in a nondiscriminatory way.
WE WILL, within 14 days from the date of the Board’s Order, remove from our
files any reference to the unlawful refusal to consider for employment Aldrich, Andra,
Bates, Hnatkowsky, and Huston, and within 3 days thereafter notify them in writing that
this has been done and that the refusal to consider them for employment will not be
used against them in any way.
J & S ELECTRICAL CONTRACTORS, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUSTNOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO
THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (215) 597-7643.
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