Lott'S Electric Co., Inc

National Labor Relations Board - Board Decisions

Mar 15, 1989

293 N.L.R.B. 297 (N.L.R.B. 1989)

LOTT S ELECTRIC CO 297
Loft's Electric Company , Inc and New Jersey
IBEW Construction Business Managers Asso-
ciation , International Brotherhood of Electrical
Workers , AFL-CIO and International Brother-
hood of Electrical Workers , AFL-CIO and
Local Unions 52, 102 , 164, 211 , 262, 269, 358,
400, 439 , 456, 581 , 592 and 675, International
Brotherhood of Electrical Workers , AFL-CIO
Lott's Electric Company , Inc and Gauntt Construc-
tion Company , Inc and New Jersey IBEW
Construction Business Managers Association,
International Brotherhood of Electrical Work-
ers, AFL-CIO Cases 22-CA-14656, 22-CA-
14745, 22-CA-14705, and 22-RC-9663
March 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND DEVANEY
On March 17, 1988, Administrative Law Judge
James F Morton issued the attached decision The
Respondent and the General Counsel filed excep-
tions and briefs in support thereof and in opposition
to the other's exceptions I
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
i During the hearing the Respondent through its former legal counsel
stipulated that the New Jersey IBEW Construction Business Managers
Association International Brotherhood of Electrical Workers AFL-
CIO which collectively represents Local Unions 52 102 164 211 262
269 358 400 439 456 581 592 and 675 International Brotherhood of
Electrical Workers AFL-CIO (named as Joint Petitioners in Case 22-
RC-9663) was a labor organization within the meaning of Sec 2(5) of
the Act The Respondent now seeks in a posthearing motion to with
draw from that stipulation and to reopen the record so that evidence con
cernmg the Union s status as a labor organization can be adduced The
General Counsel opposes the Respondent s motion to set aside the stipu
lation and to reopen the record Having duly considered the matter we
deny the Respondents motion to reopen the record The evidence sub
mitted in support of the motion consisting of testimony proffered in an
unrelated representation proceeding and an assertion by its present coun
sel that the Respondent s trial counsel was inexperienced in labor matters
is insufficient under Sec 102 48 of the Board s Rules and Regulations to
justify reopening the record in this proceeding or to set aside the stipula
tion voluntarily entered into by the parties at the hearing Because our
denial of the Respondents motion we find it unnecessary to rule on the
General Counsel s Motion to Strike Postcnpt and Accompanying
Letter
2 The Respondent and the General Counsel have excepted to some of
the judge s credibility findings The Board s established policy is not to
overrule an administrative law judge s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
The Respondent contends inter alia that unit employee Okomski was
misled into signing an authorization card for the Union and that the
judge therefore erred in counting his card in determining whether the
Union had attained majority support We find it unnecessary to pass on
the validity of Okomski s card as the record shows that the Union had
conclusions and to adopt the recommended Order,
as modified 3
We agree with the judge that employee John
Oliver did not quit his job but rather was unlawful
ly terminated for his union activities when the Re-
spondent refused to assign him any more work fol
lowing his recovery from a knee injury On Octo
ber 17, 1986, the Respondent's president expressed
displeasure with Oliver's union sympathies, asked
him why he did not quit, and told him he had been
transferred to a more distant jobsite because of his
union activities Shortly thereafter, Oliver injured
his knee and told his supervisor, Groff, that he
would not be able to work for the last week in Oc-
tober Groff said he would call Oliver with a work
assignment for the first week in November, but did
not do so Although Oliver left numerous messages
informing the Respondent that he was able to
work, Groff never returned his calls When Oliver
was finally able to reach Groff by using another
person's name , Groff said he had heard that Oliver
quit his employ and he (Groff) would have to con-
tact the Respondent's manager The judge found,
and we agree, that there was no basis for Groff's
assumption that Oliver had quit and that in the
context of the Respondent's other unlawful acts to-
wards Oliver, its failure to call him for work con-
stituted a discharge in violation of Section 8(a)(3)
and (1) of the Act
The Respondent contends that regardless of
what happened prior to the November 4, 1986 tele
phone conversation with Groff, Oliver nevertheless
voluntarily quit when he told Groff at the end of
the conversation not to bother checking on his
status with the Respondent's manager because he
wanted to work out of a union hiring hall We find
no merit in this contention Given the Respondent's
earlier unlawful acts of urging Oliver to quit and
transferring him to a more distant jobsite, and
Groff's failure to answer repeated calls from
Oliver, it is reasonable to infer, as did the judge,
that Oliver's November 4 remark resulted from his
exasperation at the manner in which he was being
secured 16 additional valid authorization cards (not counting Okomski s)
from the 29 employees in the unit and had thereby demonstrated that it
enjoyed the support of a majority of the Respondents unit employees
In the last paragraph of sec III C of his decision the judge inadvert
ently stated that the Respondent pressured employee Sutherland to with
draw his union card by threatening to withhold the processing of his ap
prenticeship papers It is clear from the judge s prior discussion of this
matter and from the record that employee Seltner and not Sutherland
was the target of the above unlawful conduct
2 We shall modify the judge s recommended Order only for the put
pose of clarifying that the Respondents remedial and bargaining obliga
tion stated in the Order is with Local Unions 52 102 164 211 262 269
358 400 439 456 581 592 and 675 International Brotherhood of Elec
tncal Workers AFL-CIO whose representatives are collectively known
as New Jersey IBEW Construction Business Managers Association Inter
national Brotherhood of Electrical Workers AFL-CIO
293 NLRB No 31
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
treated by the Respondent and does not constitute
either a voluntary quit or a waiver by Oliver of his
right to an offer of reinstatement Whether Oliver
subsequently worked out of a union hiring hall is a
remedial matter best left to the compliance stage of
this proceeding
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge , as modified below, and orders that the Re-
spondent , Lott's Electric Company , Inc, and
Gauntt Construction Company, Inc, Burlington,
New Jersey , its officers , agents, successors, and as
signs , shall take the action set forth in the Order as
modified
1 Substitute the following for paragraph 1(a)
"(a) Coercively questioning its employees as to
their support for Local Unions 52, 102 , 164, 211,
262, 269 , 358, 400 , 439, 456 , 581, 592 , and 675,
International Brotherhood of Electrical Workers,
AFL-CIO, whose representatives are collectively
known as New Jersey IBEW Construction Busi
ness Managers Association , International Brother
hood of Electrical Workers , AFL-CIO "
2 Substitute the attached notice for that of the
administrative law judge
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 the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these
rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT coercively question you as to
your support for Local Unions 52, 102, 164, 211,
262, 269, 358, 400, 439, 456, 581, 592, and 675,
International Brotherhood of Electrical Workers,
AFL-CIO whose representatives are collectively
known as New Jersey IBEW Construction Busi-
ness Managers Association , International Brother
hood of Electrical Workers, AFL-CIO
WE WILL NOT threaten to discharge you to dis
courage you from supporting the Union
WE WILL NOT threaten you that we would close
our operations to discourage you from supporting
the Union
WE WILL NOT warn you that reprisals will be
taken against you to discourage you from support-
ing the Union
WE WILL NOT promise to adjust your grievances
in return for your withdrawing support of the
Union
WE WILL NOT solicit grievances from you to dis-
courage support for the Union
WE WILL NOT inform you that your support for
the Union is a futile act
WE WILL NOT induce you to withdraw your
signed union authorization cards
WE WILL NOT tell you that you were transferred
to other jobsites because you supported the Union
WE WILL NOT lay off, discharge , suspend, or
transfer you to discourage support for the Union
WE WILL NOT refuse to bargain collectively with
the Union as the exclusive representative of our
electricians , including journeymen , foremen, and
apprentices
WE WILL NOT in any other manner interfere
with , restrain , or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act
WE WILL offer James Koerner , John Oliver,
Vito Galati, Mark Seltner , Joseph Carluccio, and
Barry Galczynski immediate and full reinstatement
to their former jobs or , if those jobs no longer
exist, to substantially equivalent positions of em
ployment without prejudice to their seniority or
other rights and privileges and WE WILL make
them whole for all lost earnings they suffered as a
result of our having discriminated against them,
less any net interim earnings , plus interest, and WE
WILL also make Mark Seltner whole for having un-
lawfully suspended him for 5 days
WE WILL notify each of those named employees
that we have removed from our files any reference
to the discriminatory acts we committed against
them and that none of these acts will be used
against them in any way
WE WILL, on request , bargain in good faith with
the Union as the exclusive collective -bargaining
representative of all our electricians, including
journeymen , foremen , and apprentices, and will
sign any agreement reached with it
LOTT'S ELECTRIC COMPANY, INC
AND GAUNTT CONSTRUCTION COM
PANY, INC
LOTT S ELECTRIC CO
Gary A Carlson and Debra J Cosgrove Esqs, for the
General Counsel
Laurence E Rosoff Esq, of Cherry Hill, New Jersey, for
Lott s Electric Company, Inc
DECISION
STATEMENT OF THE CASE
JAMES F MORTON, Administrative Law Judge The
consolidated complaint in the first three cases captioned
above alleges that Lott's Electric Company, Inc (Re
spondent) has violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act) and proposes as
a remedy that Respondent be ordered to bargain collec
tively with New Jersey IBEW Construction Business
Managers Association, International Brotherhood of
Electrical Workers, AFL-CIO (the Union) 1 Respondent
is alleged to have on approximately 18 different dates
and by 3 individuals, committed unfair labor practices
consisting of unlawful interrogation, threats, and other
coercive conduct designed to undermine support for the
Union The complaint also alleges that Respondent dis
criminatorily (a) laid off three employees, (b) transferred
and later discharged two employees, and (c) suspended
and laid off a sixth employee
Respondent's answer places in issue these alleged un
lawful acts and also the supervisory status of one of the
individuals alleged to have committed a number of these
acts Respondent's answer also asserts that a bargaining
order remedy is inappropriate
In the above captioned representation case, the Union
filed its petition about 1 August 1986, a Stipulation for
Certification for Consent Election was approved in mid
August, the election was held on 19 September 1986, and
when the Union did not receive a majority of the valid
ballots it filed objections thereto, in the Report on Ob
jections, certain of the objections were consolidated for
hearing as they pertain to matters also alleged as unfair
labor practices 2
The hearing was held before me in Newark New
Jersey on 27 29, and 30 April and on 1, 4, 5, and 6 May
1987 On the entire record, including my observation of
the demeanor of the witnesses, and after due consider
ation of the briefs filed by the General Counsel and Re
spondent I make the following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
The pleadings establish and I find that Respondent is a
New Jersey corporation engaged as an electrical contrac
tor in the building and construction industry and that its
operations meet the Board s standard for asserting juris
diction over nonretail business 3
I At the hearing and in their respective briefs the parties have used the
term Union to refer also to the IBEW construction locals whose man
agers formed the New Jersey IBEW Construction Business Managers As
sociation Those construction locals are the joint petitioners in the repre
sentation case involved herein
2 The remaining objections were withdrawn
3 Respondent is operated in conjunction with Gauntt Construction Co
a general contractor in the construction industry The amended pleading
299
The pleadings also establish and I therefore find that
the Union is a labor organization as defined in Section
2(5) of the Act
II BACKGROUND
A Respondents Operations
Respondent is a family run business The father s legal
name is Frank Lott Jr , but he is referred to by many of
the employees as Frank Sr To confuse his name further,
his son s legal name is Frank IV, but he is often referred
to by his father s legal name, Frank Jr To avoid confu
sion, I shall refer to the father as Frank Sr (or at times
Senior), and to his son as Frank IV Another son, Lance
Lott, is also active in the business, as is a son in law who
is an electrician employed by Respondent
Frank Sr has been in the electrical industry since
1954, in all phases, from design to construction He had
been project manager on major installations, including
Newark International Airport, naval yards, university,
and hospitals In the 1960s, he did business as Lott Elec
tnc, an individual proprietorship
Frank IV started his own business in 1976 He owned
a truck, worked alone, and used the trade name, Lott s
Electric In 1977, he hired several employees
In 1979, Respondent was formed Frank IV was its
sole stockholder then Frank Sr joined Respondent in
1982 as general manager His other son, Lance, joined
Respondent and, at some point, he became half owner of
Respondent with Frank IV Frank IV is president of Re
spondent, Lance is vice president Frank IV testified that
his duties include handling more of the high finances
Lance performs estimating functions Frank Sr oversees
the operations His duties include planning representing
Respondent at job project meetings, and managing the
complement of about 100 employees involved in electri
cal and related construction work
That Respondents business is a family operation was
made clear by the candid testimony of Frank IV He tes
tified at one point that his sister would have killed him if
he laid off his brother in law
Respondent has its principal office in Burlington New
Jersey, from which it assigns electricians to work at con
struction sites in New Jersey and Pennsylvania As these
projects are subject to the provisions of the Davis Bacon
Act, Respondent pays its electricians the Davis Bacon
rates, which vary according to the area in which a job
site is located A significant part of an area rate is the
cost of contributing to pension welfare and other funds
As Respondents electricians have been unrepresented by
any labor organization and as it has established no fringe
benefit plan itself for these employees it includes, in
their weekly wages, moneys equivalent to the total value
of fund contributions
B The Union s Organizational Effort
The 13 local unions of the IBEW which are listed as
joint petitioners in the above captioned representation
establishes that Respondent and Gauntt constitute a single employer
within the meaning of the Act
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
case , are located in New Jersey and represent electri
clans in the construction industry Each of these locals
has a business manager in charge The business managers
formed the New Jersey IBEW Construction Business
Managers Association IBEW, AFL-CIO One of its
purposes is to organize unrepresented electricians in the
construction industry in New Jersey It employed Rich
and Dressel to this end In early 1986, he began visiting
jobsites to speak with the electricians in Respondent s
employ All dates hereafter are for 1986 unless specified
otherwise
In early March, according to the testimony of one of
the alleged discnminatees, James Koerner, Dressel vis
ited the jobsite in Totowa, where he was working and
gave him his business card and union authorization cards
Koerner testified that the construction superintendent
there later asked for and took those cards On the Friday
of that week, as Koerner related he saw those cards on
the desk of alleged Supervisor Ralph Groff at Respond
ent s office in Burlington Koerner testified that Groff
told him then to steer clear of the Union if he wanted to
stay in Respondents employ There is no allegation in
the complaint that Respondent thereby violated the Act
nor does the General Counsel in her brief, refer to this
aspect of Koerner s testimony as constituting a violation
of the Act by Respondent or as evidence of union
animus Koerner s account, however, does serve to focus
on a critical issue that is whether Groff is a supervisor
within the meaning of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Alleged Supervisory Status of Ralph Groff
The complaint alleges that Ralph Groff is a supervisor
within the meaning of the Act and that Respondent
acting through him, unlawfully interrogated employees
threatened them and solicited grievances from them to
discourage them from supporting the Union Respond
ent's answer denies these allegations
Groff refers to himself as Respondents general fore
man On some of Respondents forms, an abbreviation of
the title superintendent appears alongside his name He
has an office at Respondents Burlington headquarters
from which he directs electricians regarding jobsites they
are to report to He is responsible for visiting these
plants to ensure that the foremen there see to it that the
work is progressing as scheduled The General Counsel
presented uncontroverted testimony that Respondent s
president in April told employees that Groff was its
electrical field superintendent There was uncontroverted
testimony also that Groff has hired employees on his
own Groff testified that he has issued written discipli
nary warnings to about 15 to 25 employees
The evidence in this case supports a finding that Groff
was a supervisor within the meaning of Section 2(11) of
the Act and is even stronger than that in Aztec Concrete
277 NLRB 1244 (1985), in which a field superintendent
was found to be a supervisor I therefore find that Groff
was at all times material a supervisor within the meaning
of the Act
B Alleged Unlawful Conduct in June and July
1 The first alleged un'awful act
Vito Galati, one of the alleged discnminatees, testified
as follows In June while assigned to a jobsite in Somer
ville, he had lunch at a diner with Field Superintendent
Groff and several coworkers, one of whom he recalled
was Joseph Okomski While there, Groff looked at him
and said, ' [H]ey buddy, you didn t sign one of them
union cards or talk to any of them union guys did you?
When he responded that he had not, Groff said, be
cause if [you] did [and] if the old man catches wind
of it, he would definitely, he would close the doors
Groff went on to say that Galati would be fired if [the
old man] found out about it that [Galati] had done any
thing with the Union The old man that Groff referred
to was Frank Sr
In the course of Groff's testifying during Respondent's
case he was asked if he at anytime had asked any of the
employees as to their feelings about the Union and he re
sponded that he had not He explained that the reason he
had not was that he had been given specific orders from
Frank IV as to what he could do and that he got instruc
tions from Frank IV almost daily These instructions, he
related were first given him about 1 August when Re
spondent received formal notice of the Union s demand,
as recounted further below Groff testified also that he
had heard rumors about the Union and by that, he was
referring to conversations he overheard among employ
ees at the diner referred to in Galati s account and that
occurred at indefinite times in the period between April
and the date of the representation election, 19 Septem
ber
At another point in the course of his testimony, Groff
was responding to the account given by James Koerner
regarding the first appearance of the Union s organizer,
Dressel at another jobsite in March or April Groff's ac
count thereon was that he was made aware then that
Dressel was distributing union authorization cards Nev
ertheless, according to Groff, he did not mention this to
either Frank Sr or Frank IV
Okomski who was present at that diner in June ac
cording to Galati s account testified for Respondent re
garding another issue, discussed below but neither was
asked about nor testified to the diner incident in June as
related by Galati
Galati s testimony appeared to be given candidly and
without guile I am troubled by certain aspects of Groff s
account It seems unlikely to me that he would have re
marred entirely silent at lunchtime as his testimony
would have it when employees under him were discuss
ing the Union Groff sought to explain his silence by
stating that he was following orders from Frank IV but
those orders, by Groff's own account, were not given
him until a month or 2 later Even more troubling to me
is Groff's testimony that he withheld from Frank Sr and
Frank IV knowledge that Union Representative Dressel
was at one of Respondent s jobsites a month before in an
effort to organize Respondents employees It seems un
likely to me that a field superintendent would not di
vulge such information to his own superiors
LOTT S ELECTRIC CO
After weighing these points and noting that Galati s
account did not appear to be contrived or tailored and
particularly as it seems unlikely to me that Groff would
have remained mute while the others discussed the
Union openly in his presence, I am satisfied that Galati s
testimony more probably reflects what did occur I
credit his account
The questioning of Galati by Groff and the contempo
raneous warning that Respondent would close down its
operations and discharge Galati if he supported the
Union constitute acts interfering with, restraining, and
coercing employees in the exercise of their rights under
Section 7 of the Act and thereby violates Section 8(a)(1)
of the Act See Fimco Inc, 282 NLRB 653 (1987)
2 Alleged coercive conduct in July
James Koerner, an electrician employed at the Totowa
jobsite, as noted above, testified as follows as to discus
sions he had in July with Groff and with Frank Sr
Groff telephoned him while he was at that jobsite and, in
the course of the discussion, Groff asked him if he had
signed a union card Koerner told him that he had as he
felt it was in his best interest to do so Groff told him
that he had screwed up That evening Groff tele
phoned him at home and told him that if he pulled his
card back, he would make amends with the old man
that [Koerner] could keep [his] job He replied that he
was not going to pull back his card Groff then said that
it was nice working with him and that he would be get
ting two paychecks on the coming Friday Groff then
told him that the old man wanted to speak to him
Koerner then called `the shop' and spoke to Frank Sr
who told him that he wanted to talk about the Union
Koerner said that he wanted to be up front with Frank
Sr and told him that he had signed a card, that it was
nothing personal but it was in his best interests to go
with the Union Frank Sr responded that he was sorry
that Koerner felt that way and that Koerner was fin
ished That ended the conversation
As noted above, Groff denied that he asked any of the
employees about the Union He testified that he was re
strained from doing so because he had been given re
peated instructions to refrain from so questioning any
employees This testimony by Groff implies that repeated
restraints were needed to ensure that he did not question
employees as to their support for the Union It seems un
likely that a field superintendent would have been sub
jected to being told over and over what he was not to
do I find Groff's account improbable
Frank Sr also has denied talking to employees about
the Union He testified that he did not know anything
about the Union until he happened to overhear two em
ployees talking about the Union outside his office and
that he laughed over it He further testified that when
the Union soon after made its demand for recognition
Frank IV directed him as to what he could do concern
ing the Union s campaign and that, on one occasion
Frank IV iced him from discussing the Union Frank
Sr related that on another occasion, union organizer
Dressel introduced himself when he was at a nearby bar
with his employees He testified that he and Dressel
agreed not to talk to the employees that they would
301
have a good time instead , and that he Frank Sr put
away 15 to 20 drinks
The personality portrayed by Frank Sr s demeanor at
the hearing was one of decisiveness and of strictly bust
ness This portrait is entirely at odds with that conveyed
by the account he gave-that of a convivial spirit with
an enormous capacity for hard liquor His son Frank IV,
is a young man who showed deference to his father It is
hard to accept Frank Sr s account that his son iced
him by an order he gave I credit Koerner s testimony,
which seemed candid and direct
Groff's questioning Koerner whether he signed a
union card, his efforts to get Koerner to withdraw his
support of the Union to be able to keep his job and
Frank Sr s observation that Koerner was finished when
he admitted he signed a union card constitute coercive
interrogation and unlawful threats of discharge violative
of Section 8(a)(1) of the Act See Fimco Inc, above
C The Events of 1 August
On 30 or 31 July, the Union had demanded that Re
spondent recognize it as the representative of Respond
ent s electricians On Friday afternoon, 1 August, the
electricians reported to the Burlington office to turn in
their timesheets and to get their paychecks from Frank
Sr, in accordance with regular procedures The General
Counsel presented four witnesses who testified as to
what occurred that afternoon
James Koerner testified that the electricians were
called into Groff's office one by one and that when he
went in Groff told him that he was in deep trouble
before sending him to Frank Sr s office
Alleged discriminatee John Oliver testified that the
electricians entered Groffs office one at a time He relat
ed that in his turn Groff told him that he has to ask
Oliver something and then asked if Oliver had signed a
card for the Union Oliver testified that he answered,
yep and that Groff then shook his head and said that
all the Union would do was to take his money
Alleged discrimmatee Galati testified as follows He
entered Groff s office when Oliver left it Groff leaned
forward and asked between you and I if he had signed
a union card Galati s response was that the only thing
that matters to him is that he works steady Groff told
him that that was good and that he could go to Frank
Sr s office to pick up his paycheck While talking with
Groff, Galati noticed that there was a sheet of paper on
Groff 's desk that had two columns one headed Yes
the other No " Koerner s name and Oliver s name were
in the Yes column Galati s name was put in the No
column
Theodore Sutherland, an electrician, gave testimony as
follows He was about the last employee to enter Groff's
office that day He asked Groff if there was anything
wrong Groff told him there was a little problem and
then asked Sutherland if he had signed a union card
Sutherland replied by asking Groff to wait a minute as
he had a gripe to bring up He told Groff that a laborer
on his jobsite was giving him, an electrician orders as to
how he should do his job and that the laborer had
threatened to fire him Sutherland told Groff that he had
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed a union card because he felt a union was needed
when a laborer can fire an electrician Groff then called
Lance Lott into his office and asked Sutherland to repeat
his gripe Sutherland did so Lance Lott shook his head
and left Groff then asked Sutherland if he still would
have signed the union card if Groff straightened out the
matter Sutherland responded that he would not Groff
told him to get his check and that he would see Suther
land on Monday
As noted above, Groff denied questioning any employ
ee about the Union
In a prehearing affidavit taken by the General Counsel
during the administrative investigation of the underlying
unfair labor practice charges, one of the discrimmatees
referred to having gone to a restaurant for dinner in
early 1987 with the Union s organizer , two other discri
minatees and the wives of all four men Respondent sug
gests in its brief that two of the General Counsels wit
nesses in their discussions with Groff on 1 August, had
sought to conceal that restaurant meeting and hence
should not be credited I am not persuaded that Koerner,
Galati, Oliver, or Sutherland concocted then the ac
counts they gave at the hearing before me Obviously,
their accounts were not restatements of each other s tes
timony Rather , the accounts they related appeared to be
consistent with their respective personalities and it seems
unlikely that they were invented for purposes of the
hearing I note also that Lance Lott was not called by
Respondent to controvert Sutherland s testimony, I find
the accounts given by the General Counsel s witnesses
believable and I credit them over Groff's denials
Groff's statement to Koerner that he was in deep
trouble , in context with the telephone conversations
Koerner had earlier with Groff and Frank Sr as re
counted above constituted a threat that he would be
subjected to reprisals because he supported the Union
and Respondent thereby violated Section 8(a)(1) of the
Act See Algreco Sportswear Co, 271 NLRB 499 507
(1984)
Groff's methodical questioning of employees regarding
support for the Union in connection with the inducement
to Sutherland to withdraw his union card by implying
that his problem with a laborer at the Totowa jobsite
would be resolved and in relation also to the events im
mediately following as discussed in the next subsection,
constitutes coercive questioning violative of Section
8(a)(1) See Koons Ford of Annapolis 282 NLRB 506
(1986) The implied inducement contained in Groff's
comments to Sutherland violates Section 8(a)(1) as Re
spondent thereby sought his withdrawal of his union
card See Daniels Cadillac 270 NLRB 466 470 (1984)
Groff's asking Sutherland whether he would continue to
support the Union if his gripe was resolved constitutes a
promise to adjust a grievance to dissipate support for the
Union and thus violated Section 8(a)(1)
The General Counsel presented three witnesses who
testified regarding statements made later that afternoon
by Frank Sr and by Frank IV
Vito Galati testified that after he left Groff's office, he
went to Frank Sr s office He waited outside while
Oliver was with Frank Sr 4 Galati testified further that
Frank Sr told him, when he went in, that he did not
want a union and that Frank IV then said that Respond
ent would close its doors before it would have a union
Theodore Sutherland a journeyman electrician, tests
feed as follows regarding his discussion with the Lotts
after he left Groff's office that day When he got to
Frank Sr s office he saw about nine other persons there
Frank Sr stated that he did not need a union At that
point Frank IV said that before the Union takes over
they will close down and open up again and that anyone
who signs a union card will be left out in the rain Frank
Senior said in a very hostile voice that he would die
before the Union takes his Company from him Frank Sr
mentioned all the negative things about a union Suther
and had a vague recollection that one of the employees
present wanted to see something on paper but could not
be more specific as he was then thinking about whether
he was going to support the Union
Mark Seltner , an electrician apprentice , gave the fol
lowing account Because it was getting late, a group of
employees including himself was let into Frank Sr s
office Frank Senior said that the Union could not do
any good and asked anyone to step forward if he could
show that the Union could be a benefit No one an
swered As the employees were filing out, he (Seltner)
asked Frank Senior if he could talk to him He told
Frank Senior that he had signed a union card Senior re
plied that he knew he had and he knew everybody that
signed a card Seltner then asked Frank Senior if he
could prove that the Union would not be a benefit to the
employees Frank Senior said he could Frank Senior
handed Seltner a copy of union bylaws and told him to
read it Frank Senior began discussing how he was look
ing forward to bigger and better jobs Frank Senior was
then holding Seltner s apprenticeship papers in his hand
and said as he was sitting down, that 2 weeks ago he
was sure of sending them, but now he was not sure if he
would send them He asked Seltner to tell him what he
should do Seltner told him he wanted the papers sent so
that he could complete his apprenticeship Frank Senior
stated that he had gotten good reports of Seltner s work
and that with a promotion Seltner would not have to
serve a full 4 year apprenticeship as he could get credit
based on his experience Frank Senior said that all
Seltner had to do to be sure the apprentice papers are
sent in is to get back his union card Frank Sr offered to
help him do that if he ran into any difficulty getting the
card back Frank Senior told Seltner that he has to be
either for him or against him and that he (Frank Senior)
cannot take care of anyone who is not for him
For the reasons noted above I am not disposed to
credit Frank Sr s denials of the accounts proffered by
the General Counsels witnesses Nor do the efforts of
Frank IV impress, respecting his ordering and directing
his father during the Union s campaign More than once
Frank IV testified that he took command of the situation
4 Galati testified that he overheard part of the discussion that Frank
Senior had with Oliver However Oliver was not asked about that dis
cussion and did not refer to it in the course of testifying before me I give
no weight to Galati s account as to what he may have overheard
LOTT S ELECTRIC CO 303
and each time he made that assertion it became weaker I
credit the testimony offered by the General Counsel s
witnesses
The credited evidence establishes that Respondent, on
1 August threatened to close its operations and threat
ened to discharge employees to discourage support for
the Union and pressured Sutherland to withdraw his
union card by threatening to withhold the processing of
his apprenticeship papers These acts constitute violations
of Section 8(a)(1) of the Act See Daniels Cadillac,
above See also Delta Data Systems Corp, 279 NLRB
1284 (1986)
D Alleged Threat at the Somerville Jobsite
From a sequential standpoint , it is noted that, on 4
August , the Union filed its petition in Case 22-RC-9663
and that , on 14 August , an agreement to hold an election
on 19 September among Respondents electricians was
approved
Galati testified that , while he and another electrician
Joseph Okomski , were working at a jobsite in Somerville
in August they were visited by Field Superintendent
Groff, who spoke to them , and that he out of the blue
then said that he hoped this union thing don t go
through because if it does they 11 close the doors '
Okomski testified for Respondent about the circum
stances under which he had signed a union card, as dis
cussed later , but made no reference to the incident relat
ed by Galati
As noted earlier , Groff has denied engaging in any co
ercive conduct
Galati s account was given in a forthright manner and
I credit it Respondent , through Groff, informed these
employees that it will close its operations if the employ
ees choose the Union to represent them Respondent
thereby has violated Section 8(a)(1) of the Act
E Alleged Incident on 15 August
Seltner , the electrician apprentice testified that on
Friday, 8 August he was at the Burlington office to get
his paycheck and that Frank Sr was not there as he was
on vacation Seltner testified that on 15 August when
he went in to pick up his paycheck, Frank Sr told some
one there to close the door and then asked Seltner if he
had something to tell him Seltner testified that he told
Frank Sr that he did not have a chance to do anything
and that Frank Sr then handed him a slip with the tele
phone number of the National Labor Relations Board on
it He told Seltner that he should call that number if he
has any trouble getting it back I credit Seltner s account
over Frank Sr s denials as previously discussed It is ob
vious that Frank Sr was referring to the union authors
zation card that Seltner had signed and that Frank Sr
had discussed with him 2 weeks before I therefore find
that Respondent again unlawfully encouraged Seltner to
withdraw his support for the Union and thereby violated
Section 8(a)(1) of the Act
F Alleged Coercive Conduct About 29 August
Joseph Carluccio , an electrician testified for the Gen
eral Counsel that on a Friday about 3 weeks before the
election scheduled then for 19 September , Field Superin
tendent Groff said to him that he could not understand
why any of Respondents electricians would want the
Union in view of the money they are paid Carluccio tes
tified that he told Groff that the life expectancy of an
electrician with Respondent was only about a year and
that Groff then stated that the election would be no
problem because, if it went yes, they would just close
the doors and open up under the name of Gauntt Elec
tric (As noted in fn 3 above Respondent and Gauntt
Construction Co Inc are a single employer ) I credit
Carluccio s account It was vivid and plausible
In the overall context of Groff's comment , his interro
gation of Carluccio violated Section 8(a)(1) See Missis
sippi Chemical Corp, 280 NLRB 413 (1986) Groff's
threat of a closedown also violated Section 8 (a)(1) Fur
ther his asking Carluccio why anyone would want the
Union was reasonably calculated to elicit a response and
Respondent thereby unlawfully solicited grievances See
Fimco Inc, 282 NLRB 653 (1987)
G Alleged Threat in Early September
Koerner testified that Groff in telephone discussions
with him regarding progress of the Totowa job, repeat
edly made references to the efforts of the employees to
organize and that, on one occasion about 2 or 3 weeks
before the election, Groff expressed total confidence that
the employees would reject the Union and also said that
it would not make any difference if they did not as Re
spondent could always shut its doors I understand the
import of Koerner s account to be that he could not dis
tinguish any of the several telephone discussions he had
with Groff about the Union and that he was relating the
tenor of Groff's remarks Koerner s account was obvi
ously not given in a rote like manner , but came across as
one that accurately reflected his best recollection I
credit it and find that Respondent , by Groff's statements,
unlawfully threatened to closedown its operations, in
violation of Section 8(a)(1) of the Act
H The Vote No Buttons
Carluccio, who testified for the General Counsel, as
noted earlier also testified as follows respecting Re
spondent s use of Vote No" buttons before the election
Two days before the election Groff came to a jobsite at
the Naval Yard in Philadelphia where Carluccio was
working, and handed him a Vote No button that he
had taken from a brown bag Carluccio put the button
on his shirt Nine other electricians there wore Vote
No buttons that day All were directed to leave work
early and to go to the Burlington office A movie about
unions was shown there All the electricians there,
except one were wearing the Vote No buttons
Koerner and Oliver were not present
Seltner s account respecting the wearing of those but
tons is as follows He was released from work early that
day and ordered to report to Burlington On his arrival
he saw his foreman, Dave Reed take a Vote No"
button from Groff, who was standing outside the build
ing Reed put the button on his hat Seltner told Groff
that he did not want one After having watched the
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
movie, coffee and cake was served Frank IV and Lance
Lott asked him how he stood with the Union Their
mother also was present and she asked him where his
button was He answered that he did not wear one
Galati also testified as to having been present for that
movie He related that Groff had been standing outside
the building handing out Vote No buttons and that he
walked by Groff without taking one He testified that
just about everyone there was wearing the buttons
except for himself, Seltner, Steve Busch, and Barry
Galczynski
David Reed, an electrical foreman, testified for Re
spondent that he observed Groff in the parking lot that
day wearing a Vote No button, but did not see Groff
handing out any buttons Reed did not directly contro
vert Seltner s testimony that he Reed took a Vote No
button from Groff and put it on his hat
Groff testified that he saw the buttons for the first
time when Frank IV brought them in and told him that
if the employees want them, they can have them, but
that he was under no circumstances to offer them the
buttons or to give the buttons out Groff testified that
Frank IV gave him those directions on a daily basis and
he denied ever asking any employee to wear a Vote
No button
Frank IV testified that he did not know whether he
was going to give out the buttons, but that when he put
one on himself it caught on and everyone kept asking
[him] for one in the office That was when [he] decided
to use them in the campaign He testified that he then
removed the buttons from his desk drawer and put them
in a cardboard box in the office He testified that he in
structed Groff a hundred times that he was not to
offer them to employees
In seems unlikely that the wearing of the buttons
caught on, as Frank IV related, after he had been
wearing one Groff did not testify that that was how he
first noticed the buttons and yet he works alongside
Frank IV at Burlington Even more significantly, a
person of Groft's intelligence would not have to be told
a hundred times not to hand out the buttons I do not
credit their accounts Nor do I credit Reed's It seems
likely that he wore a Vote No button as he was a fore
man and yet he proffered no explanation as to how he
may have gotten it I credit Seltner s account of how he
got it I also credit the accounts of Carluccio and Galati
as set out above, that Groff was handing out Vote No'
buttons to employees
In Kurz Kasch 239 NLRB 1044 (1978) the Board
stated
It is well established that an employers request,
during an election campaign, that an employee wear
a vote no" button or other pro employer insignia
constitutes a form of interrogation because, by
agreeing or refusing to wear the button, the em
ployee is forced into an open declaration either for
or against the Union
The Board has however, held that an employer can
lawfully make Vote No' buttons available to employees
if they ask for them and also that an isolated playful ges
ture by a supervisor in pinning a button on an employee
for a brief moment is not violative of the Act See Wm
T Burnett & Co, 273 NLRB 1084 (1984), and cases dis
cussed therein at 1093
The evidence before me established that Respondent
did much more than simply make Vote No buttons
available They were distributed by Groff to employees
just prior to their having reported, as directed, to Re
spondent s facility where they were shown a campaign
movie These circumstances place Respondents distribu
tion of the buttons well within the scope of the holding
in Kurz Kasch, above and I thus find that Respondent, in
handing out the buttons to its employees engaged in co
ercive interrogation in violation of Section 8(a)(1) of the
Act
I Alleged Violations at Perro s Bar
On payday each Friday, many of the electricians went
to Perro s a bar three blocks distant from Respondent s
office in Burlington where they cashed their checks and
had a few beers ' The General Counsel contends that
on 22 August and on five other Friday evenings at
Perro s the electricians were subjected by Respondent to
coercive interrogation, unlawful threats, and other con
duct violative of the Act
Galati testified for the General Counsel that, on 22
August Frank IV came to Galati s table at Perro s and
that Frank IV then said that he was trying to get a 100
percent vote Galati s account continued as follows
Frank IV stated that he respected Koerner for his opin
ion in standing up for the Union Frank IV said that
many times a company is not aware of problems until
something like this comes along and that they would,
after it was over, start taking more care of its employees
Koerner mentioned to Frank IV that the foremen should
get more pay than the electricians he works with Frank
IV said that he did not realize that was really a big prob
lem Koerner told Frank IV that he has got to be kid
ding" When Frank IV wanted to know why Koerner
had not brought that matter to his attention before,
Koerner told him that, whenever anyone goes into the
office, he gets hollered at and that Frank Sr would
fire any employee who complained Frank IV said that
he did not realize that they were overlooking things like
that and that in the future job foremen would be paid
more and that they would look into starting our own
little union over there because we didn t need the electn
cal union of course after the election was over
with Frank IV said regarding pension and other bene
fits that Respondent would look into them and probably
the employees could get them
Koerner testified for the General Counsel as follows
On a Friday in early August, he saw the Lotts and Groff
at Perro s for the first time Frank IV stated then that
Respondent was an up and growing company with an
open door policy so that anytime there was a problem
anyone could come in to discuss it Koerner asked him
why medical benefits were taken out of their pay before
and not after taxes Frank IV said that the paperwork
was too involved for them to do otherwise Koerner
asked him why foremen were not paid more money
LOTT S ELECTRIC CO
Frank IV said that the pay was high as mandated by the
State and that he could not afford to pay more There
was talk also about a pension plan that had once been in
existence Frank IV said that there had been complaints
about the plan and that the plan was discontinued, but
that wasn t to stop it in the future if [the employ
ees] wanted to get involved in a pension plan or some
thing else
The General Counsels brief cites the testimony given
by Galati and Koerner to support the allegations in para
graph 17 of the amended complaint, which recites that
Respondent on 22 August through Frank IV at Perro s
promised pension and other benefits and higher wages
for foremen if they refrained from choosing the Union as
their collective bargaining representative Although Ga
lati s and Koerner s accounts may not be clearly at van
ance regarding alleged promise of pension benefits, they
do conflict as to the alleged promise of higher wages for
foremen I note that Koerner s testimony is that the inci
dent he referred to took place about 1 August and that
Galati is quite clear that the incident he related occurred
on 22 August It may well be that they were testifying to
two separate incidents Regardless of any speculation
the point is that the General Counsel proffered their ac
counts in support of the allegations of paragraph 17 and
that the General Counsel has the burden of persuasion
that those allegations are more probably true than Re
spondent s denials thereof Because of the variances be
tween the accounts of Galati and Koerner, I find that the
General Counsel has not met her burden
Galati testified that on Friday 29 August, while he
was at Perro's, Frank IV approached him and said he
wanted to talk to him Galati related their discussions
then as follows Frank IV told him he was puzzled as to
how he, Galati, was going to vote He asked Galati if he
would come out of the closet and wear a Vote No"
button Galati responded that he did not want to do that
Frank IV asked for his reason Galati told him he did not
want to discuss his personal views Frank IV said that
the way Respondent got it Galati was a union activist
and that was why he had been moved to Bordentown
Galati asked him for the name of the person who said he
was a union activist Frank IV named his foreman, Billy
Meyers Galati said that Meyers was not even present
when he and other employees discussed the Union and
that all he Galati, did then was to try to answer some of
the questions they had regarding advantages and disad
vantages of the Union Galati admitted then that he had
signed a card for the Union and told Frank IV that even
if the Union lost, he could get work through the Union
Frank IV said that it would not do the employees any
good to go for the Union as Respondent will fight it to
the last penny Frank IV began slamming his fist down
on the bar and said that Respondent would close down
before the Union would get in
I credit Galati s testimony The interrogation by Frank
IV was coercive as the circumstances include an asser
tion by Respondent that Galati had been transferred to
Bordentown because he was perceived to be a union sup
porter, a statement indicating that it would be a futile act
to support the Union and a threat to close because of the
305
Union By these acts Respondent has violated Section
8(a)(1)
John Oliver testified for the General Counsel that, on
5 September, he talked with Frank IV at Perro s His ac
count follows He asked Frank IV what he thought
about all this union business Frank IV replied that he
was not happy with it Oliver asked what he thought
about the company going union Frank IV said
that he would think about it but always the option of
closing [his] shop down
Koerner testified that about a week or two before the
election while he was in Perro s with John Oliver and
Groff, he (Koerner) asked Frank IV what would
happen if the vote did go yes and that Frank IV replied
that he could always shut the doors
I credit the substance of their accounts over the denial
thereof by Frank IV In essence, their accounts disclose
that on about 5 September, when asked about Respond
ent s reaction to a union victory Frank IV stated that
Respondent could close its plant The variations in their
accounts regarding which one asked Frank IV is not
critical The minor variations noted are likely reflective
of the personal impact on each that the answer of Frank
IV had and hence would thereby enhance, rather than
detract from, the credibility of their testimony In Rain
Ware Inc 263 NLRB 50 54 (1982), enfd 732 F 2d 1349,
1356 at fn 9 (7th Cir 1984), a similar minor discrepancy
respecting two accounts of a threat to close was held to
be no basis to discredit those accounts Further that case
held that as the asserted threat was not made based on a
business judgment , but was stated as a response in the
context of an organizational effort, it was held violative
of Section 8(a)(1) of the Act For the same reason, I find
that Frank IV s answer was violative of Section 8(a)(1)
The complaint alleges, at paragraph 24, that Respond
ent, on 19 September at Perro s created the impression
among its employees that it kept their union activities
under surveillance In support thereof the General
Counsel submitted the testimony of two employees,
Oliver and Carluccio, that Frank IV told them then that
he knew which of the employees voted for the Union
and proceeded to state the names of 10 employees
The tally of ballots at the election held in Case 22-
RC-9663 shows that nine employees cast votes for the
Union In addition Respondent challenged the ballot of
another As discussed further below the General Coun
sel submitted in evidence 17 union authorization cards
signed by Respondents employees all dated prior to the
holding of the election One of General Counsels wit
nesses , Oliver, stated that a number of these 17 had told
him that they had since changed their minds, Oliver
speculated that Frank IV based his knowledge on the re
sults of the interrogation of employees conducted in
August by Groff as to their support for the Union
There is no suggestion by the General Counsel that
Respondent indicated to Oliver or Carluccio that it had
arranged somehow to watch how the employees marked
their ballots when they voted in secret The evidence of
fered appears to show that Respondent, by reason of its
questioning of employees as discussed above, drew con
clusions as to their feelings about the Union which con
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
clusions were in accord with the views of Oliver and
Carluccio That evidence would disclose to employees
the efficiency of the interrogations The fact that Re
spondent, in the eyes of the employees, conducted direct
inquiries as to the union support would tend to negate an
inference that it also had secretly surveilled their union
activities Had there been no evidence of direct and in
tensive interrogations in this case the statement by
Frank IV on 19 September would have unlawfully con
veyed that impression of surveillance Cf Wilco Business
Forms, 280 NLRB 1336 (1985) 5
The General Counsel alleges that Frank Sr, on 26
September at Perro s, threatened employees with repris
als to discourage them from supporting the Union and
told them that it was futile for them to support the
Union Koerner testified as follows respecting these alle
gations He congratulated Frank Senior on his victory
Frank Senior responded by asking what he was still
doing here ' When Koerner asked what he meant by
that remark, Frank Senior responded that he thought
Koerner would now be with the Union and said that
Koerner should do him a favor and with the other nine
assholes just leave Koerner told him he will leave
when he is ready and will give Frank Senior fair notice
Frank Senior said that Koerner's life expectancy with
Respondent was nil and that as long as there was a
breath of air in his lungs and a penny in his pocket, there
would never be a union in his Company
I credit Koerner s account over Frank Senior' s denial
The statements he attributed to Frank Senior are entirely
consistent with the forceful personality exhibited by
Frank Senior The credited evidence establishes that Re
spondent by Frank Sr violated Section 8(a)(1) on 26
September by, in substance, stating that it was futile for
the employees to support the Union and in pointing to
those supported the Union as objects of his anger par
ticularly Koerner, threatened them with reprisals See
Rood Industries, 278 NLRB 160 (1986)
The last allegation in the complaint regarding coercive
conduct engaged in by Respondent at Perro s is that on
17 October Frank IV informed employees that they had
been transferred to different jobsites because they sup
ported the Union Oliver testified as follows relative to
this allegation Frank IV came over to his table where
he was sitting with several coworkers, and said he
wanted to talk about work He Oliver, complained
about the foremen Respondent has Frank IV asked him
why he does not quit Frank IV told Oliver that he had
been given the job he was on because he got involved
with the Union That jobsite required Oliver to drive for
2 1/2 hours every day Frank IV told him that he could
be sent further too"
I credit Oliver s account and find that Frank IV's re
marks were violative of Section 8(a)(1) See Cardivan
Co 271 NLRB 563 (1984)
5 The General Counsel alleged that Respondent had also created the
impression that it engaged in surveillance when Frank Sr told Selmer
that he knew that Seltner and others had signed a union card and he
knew who the others were I find no merit in that allegation for the same
reason I find none here
J Alleged Discriminatory Job Transfers
The General Counsel alleges that Respondent trans
ferred John Oliver and Vito Galati to different jobsites
because they supported the Union
Oliver signed a union authorization card on 5 March
while he was working at a jobsite in Somerset On 1
August, as found above, he acknowledged to Respond
ent s field superintendent, Groff when Groff asked him
that he had signed a union card In August, he was trans
ferred to a jobsite located in Totowa, New Jersey, ap
proximately twice as far as Somerset is from his home in
Burlington Also as found above, Frank IV told him
after the election while urging him to quit, that he had
been transferred to Totowa because he supported the
Union and that he may even be assigned to more distant
locations
Respondent submitted no specific evidence regarding
the transfer of Oliver to the Totowa jobsite It did con
test the veracity of his testimony as discussed above
There is evidence before me that Respondent has effect
ed transfers between its jobsites as needs arose
The evidence submitted by the General Counsel re
garding transfer to Totowa sets out a strong prima facie
showing of discriminatory motive, especially in view of
Frank IV s clear statement thereon Respondent has not
shown it would have selected him for that transfer,
absent his union activity In view of the unrebutted
showing that Oliver was transferred because of his sup
port for the Union, I find that Respondent thereby, in
violation of Section 8(a)(1) and (3) of the Act discrimi
nated against him to discourage its employees from sup
porting the Union Cf Woodhne Motor Freight, 278
NLRB 1141 (1986)
Vito Galati signed an authorization card for the Union
on 21 May He was then working for Respondent in
Somerset New Jersey As found above Galati when
asked by Groff told him that he had not signed a union
card In July Groff visited the Somerset jobsite Accord
ing to Galati s testimony, which I credit, Groff appeared
upset because an order for materials that he had placed
had not been filled and one of the employees suggested
that he Groff might want to sign a union card like the
rest of us On 1 August as noted above Galati told
Groff that he had not signed a union card Groff record
ed Galati on a sheet as one who did not support the
Union Toward the end of August, Galati was assigned
to a jobsite at the Philadelphia naval yard That transfer
is not alleged as unlawful the naval yard is only 15 min
utes from Galati s home Galati testified that during the
week he worked there several other electricians asked
him about the Union and discussed it with him in general
terms According to Galati, Groff, while checking the
jobsite 2 days later , made a remark to Galati regarding
his talking the shit [he] was talking The next day
Groff transferred him to a jobsite in Bordentown New
Jersey approximately a 2 hour drive from Galati's home
Galati was the only electrician working on the naval
yard jobsite at that location Galati testified further that,
in September while he was at Perro s, Frank IV told
him that he was puzzled as to how he would vote and
that, when Galati told him he did not want to discuss his
LOTT S ELECTRIC CO 307
personal views , Frank IV stated that the foremen on the
Philadelphia job identified him as a union activist and
that was why he, Galati , was moved to Bordentown
I credit Galati s detailed account and find, based on es
sentially the same rationale as that set out above in dis
cussing Oliver s transfer that Galati was transferred to
Bordentown for discriminatory reasons in violation of
Section 8(a)(1) and (3) of the Act
K Seltner's 5 day Suspension
The complaint alleges that Respondent discnminaton
ly suspended Mark Seltner for 5 days
Seltner s testimony, discussed in part above and now
recounted further insofar as it pertains to this allegation,
is as follows He began working for Respondent in April
as an electrical apprentice On 25 July he signed a union
card while working at a jobsite, referred to as Wilson
Homes On 1 August, he had questioned Frank Senior s
statement about the Union Respondent made repeated
efforts to induce him to withdraw his union card, includ
ing an implied threat that it would not process his ap
prenticeship application until he did so In September, he
refused to wear a Vote No button proffered to him by
Field Superintendent Groff He was reasssigned to the
Wilson Homes jobsite in early October The foreman at
that jobsite then was Alan Stout Stout had helped
Seltner get his job with Respondent On the second day
after Seltner had returned to Wilson Homes, Stout told
him that he was not working fast enough Seltner replied
that the other electricians had built up their speed as
they were doing the same type work for about a month
and that he would build up speed too
Another employee Koerner, testified that, about this
same time , he happened to overhear Field Superintend
ent Groff talking to Stout at the Burlington facility and
that he heard Groff tell Stout then that he would force
Seltner to quit
On 24 October Seltner wore a T shirt to work It had
an IBEW emblem on it Seltner also hung up an IBEW
poster Stout told him that he did not want him to wear
that T shirt again Stout threw the IBEW poster into the
trash receptacle Stout told Seltner that he, Seltner, was
making him look bad and he told Seltner that he should
quit
On the following Monday, 28 October Seltner was ill
and telephoned to report that he would not be able to
work On the next day he reported for work Stout sent
him home early as he was still sick Seltner had obtained
permission earlier from Stout to be absent from work on
30 October to go to a church retreat
On 2 November, Stout informed him that he was sus
pended because he was absent and because his work was
too slow
Stout did not testify I credit Seltner's account and
also Koerner's testimony as to his having overheard the
discussion Groff had with Stout
Seltner was suspended the week of 3-7 November On
payday, he asked Frank Sr why he had been suspended
Frank Sr replied that he had not called in 1 day Seltner
told him that he did call in Frank Sr told him that his
work was too slow and that he cannot `get along with
the guys Seltner told him that the only one he has a
problem with is Stout Frank Senior told him that he,
Seltner, would have to see Stout
The testimony of Theodore Sutherland established that
Groff informed employees in August that Respondent
would give a warning to an employee for not calling in
to report that he would be absent or for reporting to
work late-that a second violation would result in a
week s suspension , and that a third violation would result
in discharge
The credited evidence reveals that Seltner was an
open supporter of the Union who had been expressly
named by Frank IV as a union supporter and that Re
spondent had made repeated vain efforts to effect a
change in his position Seltner continued to show his
support for the Union, even after it lost the election The
timing of his suspension, a week after he wore an IBEW
shirt while at work, his exhibiting a union poster there,
and his foremen s annoyance at him for these actions are
factors to be given weight in determining the issue of
discriminatory motive The evidence of independent
union animus exhibited by Respondent is significant
Seltner s testimony as to his discussion with Frank
Senior and the fact that the progressive disciplinary
policy announced in August by Groff was not followed
point up the pretextual nature of the reasons given by
Respondent to Seltner for suspending him These factors
together set out a strong prima facie case supporting the
complaint allegation Cf Postal Service, 270 NLRB 896,
907 (1984) Respondent has not sustained its burden of
showing that Seltner, notwithstanding, would still have
been suspended on 3 November Accordingly, I find that
the General Counsel has proven that Seltner was sus
pended for a week in retaliation for his having engaged
in activities supporting the Union
L The Discharges
The General Counsel contends that Respondent discn
minatonly terminated the employment of six employees
because they had supported the Union and that it did so
in the guise of selecting four of them for layoff treating
the fifth as one who had quit, and asserting various
grounds to discharge the sixth Respondents position is
that it based the selection of four employees for layoff
solely on nondiscriminatory criteria, that the fifth did
indeed quit and that the sixth was discharged for valid
reasons 6
6 The General Counsel s brief argues that a statement made by a unit
employee William Meyers to alleged discriminatee Galati to the effect
that Frank Sr would get rid of troublemakers over a period of time after
the election is an admission against interest by Respondent Meyers was
Respondents observer at the election and is classified as a foreman a
nonsupervisory position The General Counsels argument is based essen
tially on a statement by Frank IV to Galati that he told Galati that
Meyers had informed him as to Galati s union activity and that Meyers
was acting in Respondents interest in doing so The difficulty I have
with the General Counsels reasoning is that it charges Respondent with
holding Meyers out to employees as its agent so that Meyers could reveal
to them the very pretext it would use to conceal its unlawful motive The
General Counsels reliance on Fzmco Inc above is misplaced as there the
leadman agent was relaying direct orders and was not as the General
Counsel urges here purporting to reveal a planned pretext That is not to
say that Meyers remarks would not constitute an unlawful threat Cf
Continued
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The four laid off employees are Joseph Carluccio,
James Koerner, Barry Galczynski, and Mark Seltner
Their layoffs are discussed next and are followed by dis
cussions regarding terminations of the other two alleged
discriminatees , John Oliver and Vito Galati
Joseph Carluccio
Carluccio, an electrician, began working for Respond
ent in June He was the first of the alleged discriminatees
to be laid off
He had signed an authorization card for the Union on
26 June As found above, Respondent's field superintend
ent Groff had asked him why any employee would want
the Union and, when Carluccio in substance told him
that the employees were concerned with job security,
Groff threatened that Respondent would close its doors
if they voted for the Union Also as found above, Frank
IV had, on the night of 19 September, named Carluccio
and others as the employees who supported the Union
The circumstances of Carluccio s layoff are as follows
He had received work assignments for only 3 of the days
in the week 6-10 October, Groff told him that there was
not enough work On 10 October, Groff told him that he
was to report to a jobsite in Totowa on Monday, 13 Oc
tober On the evening of 10 October at Perro s bar, Car
luccio talked with Lance Lott, Respondents vice presi
dent and one of its co owners According to Carluccio
they talked about his prospects for continued employ
ment with Respondent Carluccio quoted Lance Lott as
having told him that he should have known better than
to have voted for the Union
On Saturday I1 October, Groff telephoned Carluccio
to tell him not to report for work Carluccio was also
told then to call Groff every day He telephoned
Monday and Tuesday, 13 and 14 October and was told
each time that there was no work He did not call there
after and has not worked for Respondent since About 3
weeks later according to Carluccio, he met Lance Lott
at Perro s and Lance Lott told him then that he had a
future with Respondent but was not loyal like [his]
brother Carluccio has a brother Victor, who is em
ployed by Respondent as an estimator
Lance Lott did not testify I credit Carluccio s uncon
troverted testimony regarding his conversations with
Lance Lott
The credited evidence in this case establishes that Car
luccio supported the Union, that he had been named by
Frank IV as one of the employees who had voted for the
Union, that his last work assignment was suddenly can
celed and that Lance Lott told him that he was not loyal
and should have known better than to have supported
the Union Those factors and the other evidence of union
animus on Respondents part make out a prima facie
showing tht Carluccio s layoff was discriminatorily moti
vated Thus I find that the General Counsel has met her
burden as set out in NLRB v Transportation Management
Corp 462 U S 393 (1983) and that the burden shifted to
Futuramik Industries 279 NLRB 185 (1986) The amended complaint
however does not allege that Meyers acted for Respondent in the com
mission of any independent violation of the Act
Respondent to demonstrate that it would have laid Car
luccio off even absent his support for the Union
Frank Senior testified regarding the procedure he fol
lowed in determining manpower needs in October the
reasons certain employees were laid off, and the criteria
therefore He did not testify as to Carluccio s layoff, al
though he did refer to a document in evidence that he
prepared and that indicates no work assignments were
scheduled for Carluccio since early October Frank
Senior testified that Frank IV also was involved in re
viewing that document He testified that Frank IV
wanted to know everything about the job assignments
and that Frank IV s requests boiled down to minority
situations, foremen situations, apprenticeship situations
and our assistant foremen programs "
Frank IV testified that Carluccio s layoff was based
purely on seniority There is nothing in Frank Senior s
testimony to indicate that seniority was a factor in his
decision to lay off Carluccio For that matter his ac
count as to that nature of Frank IV s inquiries indicates
that Frank IV was concerned with aspects other than se
niority
Suffice it to say that Respondent has offered no proba
tive evidence to demonstrate that it would have laid off
Carluccio, absent his union activities Nevertheless the
General Counsel in her brief, examines the grounds cited
by Frank Senior as the basis for his layoff decision
Respecting the reference to minority situation, Re
spondent endeavored to show that Frank Senior in se
lecting employees for layoff, took into account Govern
ment affirmative action guidelines presumably to ensure
that minority employees were not laid off However, the
individual it designated as its affirmative action officer
acknowledged that Respondent had no affirmative action
plan and that he had no knowledge of Title 7 or of
EEOC Further, Respondent did lay off a black employ
ee and classified a Caucasian as a minority employee be
cause he is a Canadian citizen
Frank Senior s account indicates that he also sought to
protect apprentices from layoff As discussed below,
however, one of the alleged laid off discriminatees was
an apprentice As to Frank Sr s reference to an assist
ant foreman program, Frank IV acknowledged that Re
spondent has never promulgated any such program and
that the program consists simply of his making value
judgments as to which employee should be designated to
fill in occasionally for an absent foreman
The evidence proffered by Respondent in support of
its efforts to rebut the General Counsels case are so in
substantial, contradictory confused and unsupported
that they instead buttress the General Counsels showing
See Williams Motor Transfer 284 NLRB 1496 (1987), in
which the Board stated that the unsupported reasons of
fered by the employer there provide additional support
for the General Counsels contention To the same effect
see Thriftway Supermarket 276 NLRB 1450 1463 (1985),
in which pretextual reasons for discharging an employee
were held to warrant an inference that the discharge was
unlawfully intended
I find that Respondent selected Carluccio for layoff
and laid him off, in violation of Section 8(a)(1) and (3) of
LOTT S ELECTRIC CO
the Act, in retaliation for his having supported the
Union
Mark Seltner
As found above, Seltner had been discnminatonly sus
pended for 5 days That suspension was scheduled to end
on his being notified over the following weekend where
to report on Monday, 10 November When he had re
ceived no call over that weekend, he called Respondent's
office on 10 November and got an assignment
Seltner testified that, on 17 November, he and the
other electricians finished their work assignments early
and as they had done on similar occasions in the past,
they packed their equipment and were ready to leave
Seltner looked for the foreman , Stout, but did not find
him Seltner left with several electricians and believed
that all the other electricians also left work early that
afternoon On 21 March, Stout told Seltner that he
would have to sign a paper before he could get paid He
was given a notice of dischplinary action Handwritten
thereon as a note that he had left work one half hour
early on 17 November without permission Seltner
signed the notice According to Seltner, there was no
further writing on the notice when he signed it
However, when that notice was produced at the hear
ing pursuant to a subpoena issued by the General Coun
sel, the following entries had later been added to it
Ralph Groff wrote a recommendation that Seltner
should be laid off for being too slow and undependable
Frank Sr wrote on it that the layoff was permanent, that
this was Seltner s third offense, and that Seltner seemed
not to care or to be willing to correct his problems
Despite that note, purportedly made by Frank Sr on
17 November, Seltner continued to work at the Wilson
Homes jobsite until about mid December He received a
call from his foreman, Stout, over a weekend that he was
laid off Stout gave him no reason The Wilson Homes
jobsite was not completed until 5 months later
In the context of the many coercive acts committed by
Respondent, including particularly the discriminatory
suspension it had imposed on Seltner himself, the facts
relating to his layoff support a clear finding that it was
also discriminatorily motivated Thus the disciplinary
notice was given him for leaving work one half hour
early despite the evidence that it was customary for em
ployees to leave early under similar conditions Further
there appears to be no factual basis for Frank Sr s nota
tion that this was Seltner s third offense The fact also
that Seltner was not permanently laid off 17 November,
as per Frank Senior s notation supports the fact that the
notation was entered much later and as an afterthought
on his part I therefore find that the General Counsel has
established a prima facie case that Seltner was selected
for layoff in mid December because he supported the
Union
I have discussed the evidence proffered by Respondent
towards meeting its burden of showing that Seltner
would have been laid off, absent his union activities, and
for the reasons stated earlier that evidence buttresses the
General Counsels case more than it gives any credence
to Respondents contentions As Respondent has failed to
meet its burden I find that it has in violation of Section
309
8(a)(1) and (3) of the Act, laid off Seltner in mid Decern
ber because he supported the Union
James Koerner and Barry Galczyski
Koerner was laid off 18 October He was a very active
union supporter, having served as its observer at the
election and having distributed union authorization cards
I have found that Koerner had been unlawfully interro
gated and threatened, that he was told by Respondent he
was finished because he supported the Union, that he
was one of those employees who did not put on Vote
No buttons distributed by Groff and that Frank IV had
named him as one of the employees who voted for the
Union
Respecting the allegation that he was discnminatorily
laid off, Koerner testified as follows Toward the end of
October, Groff asked him when he would be going with
the Union Koerner, obviously construing this as an in
quiry as to when he would quit in order to seek job re
ferrals from the Union s hiring halls, responded that he
would do so when he was ready Later in that week, in a
telephone discussion with Groff, he was told that he was
laid off and that he should not call the office, but that
Groff would get in touch with him when there was
work for him Thereafter he never received a call to
return to work even though the job on which he was
working was only half finished
Koerner s activity in support of the Union, Respond
ent s obvious hostility towards him for having supported
the Union, including Groffs remarks to him that he was
finished with Respondent because of the Union, and the
circumstances of his layoff, including the fact that work
on his jobsite was but half finished, make out a prima
facie showing that he was dtscnminatonly selected for
layoff, as the General Counsel contends
The rebuttal evidence submitted by Respondent does
not aid its case at all At one point, it offered testimony
that it was cited by the State of New Jersey for not
having adequate minority representation among employ
ees at the jobsite where Koerner was selected for layoff
instead of another electrician in order that a racial bal
ance among electricians there could be reached It devel
oped, however, that the citation was issued 5 months
before Koerner s layoff and that it referred to the com
position of the laborers at the jobsite not the electricians
Respondents brief states that Koerner engaged pur
posefully in a constant effort to provoke and bait the
Lotts and Groff [and after] the election he continued to
carry on the union campaign pushing [Frank Senior]
and pursuing him " If these observations are intended in
any way to convey a contention that Koerner was select
ed for layoff because he engaged in a conduct toward
Frank Senior that was unprotected by the Act, I reject
them as without basis in fact
In sum I find that Respondent has offered no proba
tive evidence to rebut the General Counsels prima facie
case and thus conclude that Respondent violated Section
8(a)(1) and (3) of the Act by having laid off Koerner on
18 October
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Collaterally, at the hearing an issue arose whether
Koerner was later offered employment with Respondent
It came up in the following manner
In the course of testifying, Koerner made a reference
to his having received a telephone call from Groff the
night before he testified Asked later in his testimony to
state what that call was about, Koerner related that
Groff had inquired as to the location of certain drawings
that depicted where various pipes were located on the
jobsite in Totowa According to Koerner, Groff told him
that those drawings were needed by the State Koerner s
testimony was that that subject was the topic of that tele
phone call
When Groff was called by Respondent he was asked
if he had ever contacted Koerner about coming back to
work and he replied that he did He was then asked to
relate what he had said to Koerner about an offer Groff
said , Well, before any of the you know, the guys were
laid off, we had one job that was going, it was pretty
steady and they were offered that job It was the
Wilson Homes job in Trenton here Later in his testi
mony, Groff stated that he called Koerner several times
after Koerner had been laid off and that, in one of those
calls he asked Koerner if he was available to come back
to work Groff testified that Koerner replied he was not
Groff said he could not recall when he had that discus
sion Koerner s testimony is that Groff never made such
inquiry of him Respondent also placed in evidence
copies of its telephone bills, one of which lists a call on
18 October to Koerner's home telephone number
I find Groff's account confusing and unconvincing
Respondent does not contend that any of the alleged dis
criminatees were offered work at Wilson Homes in lieu
of being laid off or that any of the alleged discriminatees
refused transfers there In any event Groff was purport
ing to state what he said to Koerner regarding recalling
him after Koerner was laid off In that context his
answer was at best not responsive As to his further testi
mony that he asked Koerner if he was available for
work I am not clear whether this was supposed to have
been said to Koerner in a telephone call made on 18 Oc
tober or at some earlier or later time For that matter,
that inquiry is not even a job offer but a question as to
Koerner s availability In short I am not impressed with
Groff's account I credit Koerner s testimony
Barry Galczynski
Galczynski did not testify before me He had signed a
union authorization card did not wear one of the Vote
No buttons distributed by Groff and had been identi
feed by Frank IV as one of the employees who voted for
the Union The General Counsel also notes that the
record evidence discloses that Galczynski was selected
for layoff with Koerner that Respondent had threatened
to discharge any employee who supported the Union
that the job on which Koerner and Galczynski were
working was far from finished, that Respondent has se
lected for layoff a clearly disproportionate number of
employees who supported the Union, and that Respond
ent s records indicate that it had newly hired electricians
on its payroll
Based on the foregoing considerations I find that the
General Counsel has proved a prima facie violation as to
Galczynski s layoff Cf Continental Radiator Corp 283
NLRB 234 (1987), in which the Board held that statisti
cal evidence as well as evidence of unlawful motivation
made out a prima facie case that the employer there un
lawfully laid off those employees who refused to sign an
antiunion petition
The burden then devolved on Respondent to prove
that nonetheless, Galczynski would have been laid off
There is no probative evidence in the record that would
support it in discharging that burden There are some
vague statements made by Frank Senior respecting his
selection of Galczynski for layoff, i e - his abilities
were in the control facet I was not pleased with his pro
duction but I needed him there so I [kept] him on
until I got the Honeywell tests through and then he was
due to go And they kept telling me they 11 test this week
or, you know, that s how the projection laid out I find
that Respondent has not shown that, absent Galczynski s
support for the Union, it would have laid him off and
thus I conclude that Respondent, in violation of Section
8(a)(1) and (3) of the Act, laid Galczynski off on 18 Oc
tober because of his support for the Union
John Oliver
The General Counsel contends that Respondent discri
minatorily terminated the employment of John Oliver on
4 November Respondent asserts that Oliver quit its
employ then
Oliver was the second most senior of Respondent s
electricians and had never been laid off previously As
found above Respondents president had asked Oliver on
17 October why he did not quit and told him then that
he had been sent to the Totowa jobsite 2 1/2 hours
away because he had gotten involved with the Union
Oliver testified as follows concerning events in late
October He had injured his knee and told Groff that he
would not be able to work the last week of that month
Groff told him that he would call him Oliver on the
weekend to give him an assignment for the following
week When Groff had not called by Sunday of that
weekend Oliver called Groff's home four times that day
leaving messages with Groff's wife that he was ready to
return to work He did not hear from Groff Several
days later, he telephoned Groff s home and, instead of
identifying himself, he told Groff's wife that he was Bill
Meyers, one of the electrical foremen Groff then came
to the phone Oliver made a sarcastic reference to Groff
as his buddy and wanted Groff to tell him when he
would be going back to work Groff said that someone
had said that he had quit Groff said he would talk to
Frank Senior Oliver told him not to bother, that he
wanted to work out of a union hiring hall Oliver testi
feed that he never told anyone he had quit
Groff testified for Respondent that he called Oliver
after he Oliver had been laid off from work When
asked to relate what he said then to Oliver, Groff testi
feed The last time I talked to John was right before
you know he told me he quit I tried calling him
that weekend he was supposed to call me I as
LOTT S ELECTRIC CO
sumed on my own that he had quit I told my wife
to accept calls only from Bill Meyers [Oliver] called
using Meyers name and said he finally got through using
somebody else s name [when he asked about work
ing] I said I got to call Senior [he said he
quit]
Oliver s account is far more plausible Groff's testimo
ny was confused, set forth no logical basis for his assum
ing that Oliver had quit contains a far fetched reason as
to why Oliver used Meyers name to get through to him
and does not begin to explain why Oliver would ask for
work, only to then state that he quit I credit Oliver's ac
count
Respondents case presented another issue for resolu
tion Frank IV testified on his direct examination that
after the election, Oliver told him that he was going to
move to Florida and that he, Frank IV, urged Oliver to
stay as he was a good electrician On cross examination,
Frank IV stated that he had asked Oliver to come back
to work He testified that this offer could have been
[made] a month ago three months ago four
months ago Oliver s account denies any such offer I
do not credit Frank IV s account It is unlikely that Re
spondent would have overlooked introducing such evi
dence in its direct case and more unlikely that an offer
that would have the effect of terminating any backpay
period would have been made so casually so imprecise
ly and without documentary corroboration
The evidence credited above discloses that Respond
ent, after having urged Oliver to quit as it was displeased
with his having supported the Union stated without any
factual basis that it assumed he had quit at a time when
he was in fact waiting for Groff's call, and later tried
vainly to reach Groff, who was not answering his calls
In Atlas Truck Rental, 280 NLRB 54 (1986), the Board
adopted a finding that an employee, who had been semi
larly treated, had not quit but rather had been terminated
in violation of Section 8(a)(1) and (3) of the Act I con
clude that Respondents conduct toward Oliver in early
November was equally violative Oliver s extemporane
ous remark to Groff that Groff need not bother to con
sult Frank Senior evidenced his exasperation at the earli
er treatment he received after his years of service and
cannot be said to be a waiver of his right to receive from
Respondent an unconditional offer of reinstatement In
that regard see Woodline Motor Freight, 278 NLRB 1141
fn 5 (1986)
Vito Galati
The last alleged discriminatee is Vito Galati As found
above Galati had been discriminatorily transferred in
August to a distant jobsite Galati was absent for several
days in the last week he worked for Respondent He tes
tified he had called Respondents office on 3 days and
left messages in accordance with normal practice to
advise that he was unable to work On the Friday of that
week, he picked up his paycheck without incident On
the following day, Groff telephoned him and told him
that he was assigned to a Mount Holly plant Groff gave
him directions there About 5 minutes later, according to
Galati Groff called again and told him that the old
311
man said that he Galati was done because of Galati s
absence
The prior discrimination practiced against Galati, as
found above, surfaced again in his discharge The reason
given him was pretextual as the absences cited were in
fact excused according to usual practice The circum
stances of his layoff in context with the evidence consid
ered above relating to the unlawful suspension Respond
ent issued to him, warrant a finding that the General
Counsel has established that Galati s discharge was prima
facie discriminatorily motivated I turn now to the evi
dence submitted by Respondent concerning its burden
under the cases discussed above to show that Galati
would have still been laid off
Frank IV testified that Galati had been discharged be
cause of habitual lateness, a lot of absenteesim Re
spondent s witness, David Reed, a foreman, testified that
Galati s work was substandard He also stated that while
Galati was tardy a few times it was nothing substan
tial Frank Sr testified that Galati was laid off for not
doing some things a bunch of minor things [he]
couldn t make it to work in the morning
The evidence offered by Respondent is in fact contra
dictory, lacks specifics and is unsupported by probative
documentary material I thus find that Respondent has
not met its burden and conclude that Galati was dis
charged because he supported the Union and that Re
spondent thereby violated Section 8(a)(1) and (3) of the
Act
IV THE OBJECTIONS
The Union had filed objections to conduct affecting
the results of the election held on 19 September and it
withdrew all except Objections 2, 3, and 4 Those re
maining objections alleged that Respondent threatened to
cease operations if the vote went union that it distrib
uted Vote No buttons to employees to ascertain their
vote prior to the election, and that it threatened to dis
charge prounion employees As those objections were
the same or similar to certain of the complaint allega
tions discussed above, they were consolidated for hear
ing before me
Having found above that Respondent did engage in
the conduct as alleged in Objections 2, 3 and 4 I recom
mend that they be sustained and that the results of the
election be set aside
V THE REQUEST FOR A GISSEL BARGAINING ORDER
The complaint as amended at the hearing alleges that
the Union has since 25 July, been designated by a major
ity of employees in a unit comprised of
All electricians employed by Respondent including
job foremen, electricians and apprentices but ex
cluding office clerical employees professional em
ployees guards and supervisors as defined in the
Act, and all other employees
Respondent's amended answer admits that this unit is
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act and that the
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union on 31 July requested that Respondent recognize it
as the reresentative of the employees in the unit Re
spondent s answer places in issue the allegation that a
majority of unit employees had selected the Union as
bargaining agent then
The complaint further alleges that the unfair labor
practices committed by Respondent are of such charac
ter as to warrant issuance of an order requiring Respond
ent to bargain collectively with the Union and that Re
spondent violated Section 8(a)(1) and (5) of the Act by
having failed and refused to recognize and bargain with
the Union since 31 July Respondent contends that, at
best, a rerun election should be conducted
The parties are in accord that as of 31 July, there
were 29 employees in the above described unit There
was dispute as to the placement of Ralph Groff whom
Respondent would include and whom the General Coun
sel and the Union would exclude as a supervisor As I
have found that Groff was at all times a supervisor as de
fined in Section 2(11) of the Act, I exclude him from the
unit
The General Counsel placed in evidence 17 authoriza
tion cards signed by employees in that unit as of 31 July
Respondent contends that four of those cards are invalid
in determining whether the Union was designated as ma
jority representative
One of the unit employees John King signed an au
thorization card for the Union on 9 May On 1 August
he wrote the Union requesting the withdrawal of [his]
application A second unit employee, Richard Gabrieli,
who had signed a union card on 1 May, sent the Union a
similar letter on 4 August
As found above, Respondents field superintendent
Groff had unlawfully interrogated and threatened certain
unit employees in June and July On 1 August Groff
again unlawfully interrogated employees after they lined
up outside his office to turn in their timesheets and
Frank Senior that same evening threatened to close Re
spondent s doors before the Union would get in
King and Gabrieli had waited about 2 1/2 months
after having signed their cards before seeking their with
drawal In Warehouse Groceries Management 254 NLRB
252 254 (1981), cited with approval in Midwestern
Mining 277 NLRB 221 (1985), the Board held that,
when an employer has engaged in coercive conduct de
signed to undermine union support, the Board will pre
sume that revocation by employees after the onset of the
coercive conduct is the result of the employers conduct
such that the revocation is ineffective That presumption
is warranted in the instant case and has support also from
the long hiatus between the signing of the union cards by
King and Gabrieli and the attempted revocation, and in
view of the absence of other intervening events The
cards of John King and Richard Gabrieli will be counted
towards the Union s majority
Respondent contends that another employee was im
properly induced to sign a card for the Union and that
his card should not be counted
Richard Dressel, the Union s organizer, testified that
he spoke to Okomski in May about signing a union au
thorization card and that the conversation he had with
Okomski then was essentially the same as the ones he
had with other unit employees Dressel s testimony was
that after introducing himself and telling employees that
the Union was interested in representing them, he read
the language of the authorization card to them and an
swered any questions they might have
Okomski testified for Respondent that he talked with
Dressel during the Union s organizational drive but did
not refer to his discussion with Dressel in May He
signed a union authorization card on 20 May He testi
feed that he had not really read it then although he rec
ognized it as an authorization card He testified that Vito
Galati gave him and Oliver cards and told him that he
was guaranteed a job with the Union if he signed it and
that its purpose was to organize a vote Okomski was
aware that Galati and Oliver do not work for the Union
Galati testified that he had given union cards to a
number of electricians with whom he worked, including
Okomski Galati testified that he told the employees that
if they had any questions they could call the Union as
they had the phone number
I credit Galati s account I find also that Okomski read
the succinct authorization stated on the card he signed
In these circumstances and as Okomski acknowledged
that representations purportedly made to him were those
of a coworker not the Union s, I find he was not misled
into signing the card It is difficult for me also to accept
that a skilled electrician with simple authorization ]an
guage before him would have acted not on it, but on an
offhanded remark by a coworker I reject Okomski s tes
timony insofar as it is offered by Respondent to suggest
that Okomski may have been misled or improperly influ
enced into signing the card I do so because Okomski
was expressly told to call Dressel if he had any questions
and as it is unlikely that he would not have called Dres
sel if he put any credence in an observation made by
Galati
The last card challenged by Respondent is that signed
by Vick Luis (Bolanos) Pera The General Counsel, to
corroborate the evidence proferred to authenticate cards
subpoenaed documents in Respondents possession that
contained employees signatures Respondent contends
that the card signed by Vick Luis (Bolanos) Pera does
not appear to be his signature and notes that the General
Counsel did not use a handwriting expert to confirm his
signature Authentication of card signatures by compar
ing them with signatures on W 4 forms in an employer s
possession is a method that the Board has approved See
Gordonsville Industries, 252 NLRB 563, 600 (1980) My
examination of the handwriting on the card bearing Bo
lanos name and the one on the W 4 certificate obtained
from Respondents files satisfies me that they are both
filled in by the same individual The W 4 form is valid
evidence to corroborate the testimony before me offered
to establish the authenticity of Bolanos card I shall
count his card
I therefore find that when the Union sought recogni
tion it represented 17 of the 29 employees in the unit de
scribed above
In this small unit Respondent has discriminatorily laid
off not only the employee who was the Union s election
observer but also the employee who was the Union s as
LOTT S ELECTRIC CO 313
sistant observer Respondent discriminatorily discharged
four other employees after having unlawfully suspended
one of them, it coercively interrogated employees con
cerning their union support it threatened them with dis
charge, transfers and plant closure it spoke to them of
the futility of their efforts to be represented by the
Union Those violations are sufficiently numerous,
severe, and pervasive as to warrant the issuance of a bar
gaining order In view of the size of the unit and the
scope and severity of the violations, it is unlikely that the
lingering effects of Respondents unlawful conduct will
be dissipated by a cease and desist order The possibility
of erasing the effects of Respondents unfair labor prac
tices by the use of traditional remedies and of conducting
a fair election is slight Correspondingly, a rerun election
would not reliably reflect genuine, uncoerced employee
sentiment The Board has, in analogous cases made these
very findings and has held, as I do now in this case that
the employees representation desires, as expressed by the
fact that a majority of unit employees had signed author
ization cards for the Union, would on balance be better
protected by the issuance of a bargaining order than by
the use of traditional remedies See, e g Olney IGA
Foodliner, 286 NLRB 741 (1987), Impact Industries, 285
NLRB 5 (1987) Kona 60 Minute Photo 277 NLRB 867
(1985)
Since Respondent has demonstrated a proclivity to
engage in conduct seriously violative of the Act s provi
sion and objectives I shall grant the request by the Gen
eral Counsel for a broad order Hickmott Foods, 242
NLRB 1357 (1979)
As the issuance of a bargaining order necessarily im
plies that no question concerning representation exists,
the petition in Case 22-RC-9663 must be dismissed See
Impact Industries, above
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 The unit of Respondent's employees as described
above is a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act
4 At all times since 31 July 1986 the Union has been
the exclusive collective bargaining representative of the
employees in this unit
5 Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by having
(a) Coercively questioned its employees regarding sup
port for New Jersey IBEW Construction Business Man
agers Association International Brotherhood of Electri
cal Workers AFL-CIO
(b) Threatened to discharge its employees to discour
age them from supporting the Union
(c) Threatened employees that it would close its oper
ations to discourage employees from supporting the
Union
(d) Warned employees that reprisals would be taken
against them to discourage them from supporting the
Union
(e) Promised to adjust grievances in return for em
ployess withdrawing their support of the Union
(f) Solicited grievances to discourage employees from
supporting the Union
(g) Informed employees that it was futile for them to
support the Union
(h) Induced employees to withdraw authorization
cards they had signed for the Union
(i) Told employees that they had been transferred to
other jobsites because they supported the Union
(l) Committed the acts described under paragraphs 6
and 9 below
6 Respondent has engaged in unfair labor practices in
violation of Section 8(a)(3) of the Act by having
(a) Transferred employees to other jobsites to discour
age them from supporting the Union
(b) Suspended an employee to discourage support for
the Union
(c) Laid off four employees and discharged two others
to discourage support for the Union
7 The objections filed and not withdrawn concerning
the conduct of the election on 19 September are sus
tained and the results of that election shall be set aside
8 A bargaining order remedy is warranted in this case
9 Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act by
having since 31 July failed and refused to bargain collec
tively with the Union as the exclusive representative of
the employees in the unit described above
10 All allegations in the amended consolidated com
plaint as to unfair labor practices committed by Re
spondent, which were not found to have meet shall be
dismissed
11 As no question concerning representation now
exists respecting the unit of employees found appropn
ate the petition in Case 22-RC-7663 shall be dismissed
12 The unfair labor practices found have a close, inti
mate and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce within the meaning of Section
2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it be or
dered to cease and desist therefrom and to take certain
affirmative action necessary to effectuate the policies of
the Act
Having found that Respondent unlawfully laid off
Mark Seltner Joseph Carluccio, James Koerner, and
Barry Galczynki and also unlawfully discharged John
Oliver and Vito Galati I shall recommend that Respond
ent shall offer them reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions of employment and make them whole in ac
cordance with the method prescribed in F W Wool
worth Co 90 NLRB 289 (1950), with interest as comput
ed in New Horizons for the Retarded 283 NLRB 1173
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1987) 7 For any wages or other benefits they may have
lost as a result of the discrimination against them Re
spondent shall also be ordered to make whole Mark
Seltner for having unlawfully suspended him for 5 days
and to pay interest thereon in the same manner
On the basis of these findings of fact and conclusions
of law and on the entire record, I issue the following
recommended8
ORDER
The Respondent, Lott s Electric Company, Inc, Bur
lington New Jersey, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Coercively questioning its employees as to their
support for New Jersey IBEW Construction Business
Managers Association, International Brotherhood of
Electrical Workers, AFL-CIO
(b) Threatening to discharge its employees to discour
age them from supporting the Union
(c) Threatening employees that it would close its oper
ations to discourage employees from supporting the
Union
(d) Warning its employees that reprisals would be
taken against them in order to discourage them from sup
porting the Union
(e) Promising to adjust employee grievances in return
for their withdrawing support of the Union
(f) Soliciting grievances in order to discourage em
ployees from supporting the Union
(g) Informing employees that their support for the
Union was a futile act
(h) Inducing its employees to withdraw the authoriza
tion cards they signed for the Union
(i) Telling employees that they had been transferred to
other jobsites because they supported the Union
(j) Suspending layoff off transferring or discharging
employees to discharge them from joining or supporting
the Union
(k) Failing and refusing to bargain collectively with
the Union as the exclusive representative of the employ
ees in the unit found appropriate
(1) In any like or related manner interfering with re
straining 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
° Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp 231
NLRB 651 (1977)
8 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 put
poses
(a) Offer immediate and full reinstatement to Mark
Seltner, Joseph Carluccio James Koerner Barry Galc
zynski, John Oliver and Vito Galati to their former jobs
or, if those jobs no longer exist to substantially equiva
lent jobs without prejudice to their seniority or other
rights and privileges and make each whole and in addi
tion Mark Seltner in the manner set forth in the remedy
section above for having unlawfully suspended him for 5
days, for any loss of earnings and other compensation
they may have suffered by reason of their having been
discriminated against them
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) On request bargain collectively with the Union
and sign any agreement reached in the course of such
bargaining with it as the exclusive representative of all
Respondents electricians including journeymen fore
men, and apprentices, but excluding supervisors as de
fined in the Act and all other employees
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay
roll records, social security payment records, timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its Burlington, New Jersey facility copies of
the attached notice marked Appendix 9 Copies of the
notice on forms provided by the Regional Director for
Region 22 after being signed by the Respondents au
thorized representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced, or covered by
any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found
IT IS ALSO RECOMMENDED that the objections found
and not withdrawn in Case 22-RC-9663 are sustained
that the results of the election are set aside, and as Re
spondent is obligated to bargain collectively with the
Union regarding the unit of employees involved, the pe
tition is dismissed
9 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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board