Matros Automated Electrical Construction Corp.

National Labor Relations Board - Board Decisions

Dec 8, 2008

353 N.L.R.B. 569 (N.L.R.B. 2008)

MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP.
353 NLRB No. 61
569
Matros Automated Electrical Construction Corp.,
BTZ Electrical Corp., single employers and Lo-
cal 363, United Electrical Workers of America,
IUJHAT and Local 3, International Brother-
hood of Electrical Workers, AFL–CIO and
Aparicio Garay, Gilberto Gonzalez, Joseph
Hodge, and Jaroslaw Wencewicz. Cases 2–CA–
36296, 2–CA–36297, 2–CA–36723, 2–CA–36522,
2–CA–36625, 2–CA–36707, 2–CA–36779, 2–CB–
20075, and 2–CB–20099
December 8, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On September 1, 2006, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
and Matros Automated Electrical Construction Corp.
(Matros), BTZ Electrical Corp. (BTZ), and Local 363,
United Electrical Workers of America, IUJHAT (UEW
Local 363) filed answering briefs to those exceptions.
Matros and BTZ filed exceptions and a supporting brief,
and the General Counsel and Local 3, International
Brotherhood of Electrical Workers (IBEW Local 3) filed
answering briefs to those exceptions. UEW Local 363
filed exceptions and a supporting brief, and the General
Counsel and IBEW Local 3 filed answering briefs to
those exceptions.
The unfair labor practice issues in this case arose from
separate campaigns by IBEW Local 3 and UEW Local
363 to organize the employees of Matros and BTZ, and
the conduct of Matros and BTZ in response to those or-
ganizing campaigns. The judge found that Respondents
Matros and BTZ committed numerous violations of Sec-
tion 8(a)(1), (2), and (3) of the Act, and that UEW Local
363 violated Section 8(b)(1)(A) and (2), but he also dis-
missed certain allegations. We have considered the
judge’s decision and the record in light of the exceptions1
and briefs and have decided to affirm the judge’s rulings,
findings,2 and conclusions as modified, and to adopt the

1 No exceptions were filed to the judge’s dismissals of allegations
that employee Gilberto Gonzalez was unlawfully interrogated, threat-
ened with discharge, or discharged.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent Employers also assert that “[b]y virtue of the credi-
bility findings, the ALJ has proven himself to be biased.” The Respon-
dents base their allegations on two main points. First, they argue that it
recommended Order as modified and set forth in full
below.3
Background
Respondents Matros and BTZ, a stipulated single em-
ployer, are New York corporations engaged in the busi-
ness of providing electrical contracting services for new
and renovated buildings and apartments. Respondent
UEW Local 363 and Charging Party IBEW Local 3 are
New York-based labor organizations.
The owner of Matros, Stuart Moskowitz, adopted a
multiemployer agreement with the Industrial Electrical
Contractors Association (IECA) administered by UFCW
Local 174, which ran from July 1, 1996, to June 30,
2001. When UFCW Local 174 was placed under a trus-
teeship in the spring of 2001, UFCW Local 342 became
the administrator of the IECA agreement. But in 2003,
when UFCW Local 342 became convinced that Matros’
electricians could be better serviced by an electrical un-
ion, it asked IBEW Local 3 if it would be interested in
representing those employees. The two locals signed

was error for the judge to credit the testimony of Vincent McElroen,
IBEW Local 3’s financial secretary, because Chairman Schaumber
“excoriated the judge for tacitly finding McElroen to be a credible
witness” in another case—Millennium Maintenance & Electrical Con-
tracting, 344 NLRB 516, 519–520 (2005). Second, the Respondents
argue that the judge improperly instructed the General Counsel on the
factors he needed to show to prove that employees of Respondents
Matros and BTZ constituted a single unit. We reject the Respondents’
bias allegations.
As to McElroen’s testimony, it was relevant to only one issue in this
case—the judge’s finding that Matros and BTZ employees constituted a
single unit, rendering unlawful BTZ’ voluntary recognition of UEW
Local 363 in a unit confined to the BTZ employees. It is not clear,
however, that the judge relied on McElroen’s testimony in making this
finding. Even assuming that he did, the Respondents point to nothing
in the record indicating that the judge’s “credibility finding” was erro-
neous. In any event, the Respondents were not prejudiced because we
have reversed the judge and found that BTZ’ recognition of UEW
Local 363 was lawful.
For essentially the same reason, we find that the Respondents were
not prejudiced by any guidance the judge provided the General Counsel
regarding the factors relevant to proving whether Matros-BTZ consti-
tuted a single unit. Thus, we have reversed the judge’s single-unit
finding.
Finally, to the extent that the Respondents contend that the judge’s
bias with respect to his Matros-BTZ unit findings “infused” his other
findings in this case, we have carefully examined the judge’s decision
and entire record and are satisfied that the Respondents’ contentions
lack merit.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD570
service agreements in December 2003 and January 2004
retaining IBEW Local 3 as the administrator of the IECA
agreement, but the IECA refused to recognize IBEW
Local 3 as administrator.
Not long after the first service agreements were en-
tered into, IBEW Local 3 began a series of organizing
meetings with electrical employees of the IECA employ-
ers, including Matros. At one such meeting in the spring
of 2004, an employee mentioned to IBEW Local 3 that
he had been hired by Matros but put on the payroll of
BTZ. He added that Moskowitz was “running two
shops.” This and similar reports eventually prompted the
filing of an unfair labor practice charge by IBEW Local 3
alleging that Matros and BTZ were discriminatorily en-
forcing an unlawful members-only contract providing
wages and benefits to electricians employed by Matros
but not to those employed by BTZ, in violation of Sec-
tion 8(a)(1) and (3). The judge dismissed this complaint
allegation, finding that the bargaining history had, de
facto, created two separate units (Matros electricians and
BTZ electricians), and that the acquiescence of UFCW
Local 174 and its successor Local 342 in these separate
units was a defense to the allegation of discriminatory
motive under Section 8(a)(3).4
Matros’ supervisors, Joe Estamabil and Peter Azic, at-
tended some of the organizing meetings held by IBEW
Local 3. Estamabil testified that he saw several Matros
employees at these meetings. Aparicio Garay, Gilberto
Gonzalez, Joseph Hodge, and Jaroslaw Wencewicz were
among a small number of Matros employees at these
meetings. The judge discredited Estamabil’s testimony
that he did not tell Moskowitz that he saw the Matros
employees at the meetings.
On March 23, 2004,5 Moskowitz sent a letter to em-
ployees that stated in part, “You may be aware that Local
3 and Local 342 have tried to force us to deal with Local
3 right now. . . . Local 3 and Local 342 signed an
agreement that Local 3 would handle your issues for Lo-
cal 342 for the remainder of the union contract. Again,
we think that this was a way for Local 342 to give Local
3 a head start. . . . We weren’t willing to be pushed
around or have Local 3 forced on us or on you. We re-
fused to deal with Local 3 and . . . the Labor Board said
that we don’t have to deal with Local 3 unless or until
they win an election.”
On April 1, 2004, the IECA dissolved. The same day,
BTZ recognized UEW Local 363 based on a card check,
and the parties executed a contract with a term containing
a union-security clause and a dues-deduction clause. On

4 We affirm the judge’s dismissal of this allegation.
5 All dates hereafter are in 2004, unless stated otherwise.
April 12, IBEW Local 3 filed representation petitions
covering each of the former IECA contractors, including
Matros. On May 11, IBEW Local 3 also filed a petition
to represent BTZ employees. On May 21, the Board
conducted an election pursuant to a Stipulated Election
Agreement at Matros. The tally of ballots was 12 votes
for and 21 votes against Petitioner IBEW Local 3, with
one challenged ballot. On May 27, IBEW Local 3 filed
objections to the election.
In the weeks before the May 21 election, UEW Local
363 held several meetings at the same address as the of-
fices of Matros/BTZ. Supervisor Estamabil arranged use
of the building, Matros’ receptionist called employees in
from the field during work hours for the meetings, and
employees were paid for time spent in the meetings. The
record indicates that at these meetings, UEW Local 363
urged employees to vote against IBEW Local 3.
Moskowitz spoke at the last such meeting, the day be-
fore the election. Both Hodge and Wencewicz testified
that Moskowitz said that “he would never sign a contract
with Local 3.” Gonzalez testified that Moskowitz also
said that if he lost the election he was going to “close the
shop and he was going to Miami.” Employee Jean
Thony testified that Moskowitz said he will not “go Lo-
cal 3,” that he would rather shut down, and that before he
goes Local 3 “hell will freeze over.”6
Moskowitz and Project Manager John Mata also ques-
tioned employees concerning how they were going to
vote in the election. During the week before the election,
Mata asked Wencewicz while he was in the Respon-
dent’s office whether he was going to vote for or against
IBEW Local 3. Wencewicz replied that he was going to
vote for IBEW Local 3. Mata reported this to Mosko-
witz, who summoned Wencewicz to his office and told
Wencewicz that employees were going to receive rate
increases. Moskowitz then asked Wencewicz if he was
going to vote for IBEW Local 3.7 Moskowitz also sum-
moned employee Garay to his office, asked him whether
he had attended an IBEW Local 3 meeting, and later
asked him at a jobsite whether he was going to support
him by voting “no” in the upcoming election. A week or
so before the election, Moskowitz came to the jobsite and
asked Hodge if he was “on his side.” Hodge responded
by saying, “I’m on your side.”

6 The judge found, and we affirm, that these remarks by Moskowitz
violated Sec. 8(a)(1) of the Act. We also affirm the judge’s finding that
Moskowitz assisted UEW Local 363 in violation of Sec. 8(a)(1) and (2)
at the May 20 meeting.
7 We adopt the judge’s finding that Moskowitz violated Sec. 8(a)(1)
during this meeting by promising Wencewicz a rate increase in return
for his vote against Local 3. Similarly, Moskowitz violated Sec. 8(a)(1)
by promising Thony a promotion to a mechanic position if IBEW Local
3 lost the election.
MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP. 571
On November 15, 2004, with the election objections of
IBEW Local 3 still pending, Matros recognized UEW
Local 363 pursuant to a card check. The parties executed
a contract that included union-security and dues-
deduction clauses.
Analysis
1. The judge found, inter alia, that Respondent Ma-
tros/BTZ, by Moskowitz and Mata, violated Section
8(a)(1) by interrogating employees. The applicable test
for determining whether the questioning of an employee
constitutes an unlawful interrogation was adopted by the
Board in Rossmore House, 269 NLRB 1176 (1984), affd.
sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). Under Rossmore House, the Board
considers whether, under the totality of the circum-
stances, the questioning at issue would reasonably tend
to coerce the employee in the exercise of rights protected
by Section 7 of the Act. In analyzing alleged interroga-
tions, the Board
considers such factors as whether the interrogated em-
ployee is an open or active union supporter, the back-
ground of the interrogation, the nature of the informa-
tion sought, the identity of the questioner, and the place
and method of the interrogation. Id.; Stoody Co., 320
NLRB 18, 18–19 (1995). The Board has held that
questioning employees about whether they attended a
union meeting and what occurred at the meeting is an
unlawful interrogation. Resolute Realty Management
Corp., 297 NLRB 679, 685 (1990), and cases cited
therein.
Bloomfield Health Care Center, 352 NLRB 252, 252–253
(2008).
Applying these factors here, we affirm the judge’s
findings that Moskowitz unlawfully interrogated em-
ployees. In a context that included other unfair labor
practices, including a threat of plant closure, Moskowitz,
the Respondent’s highest ranking official, and Mata, a
project manager, asked employee Wencewicz in the Re-
spondent’s office whether he was going to vote for
IBEW Local 3. Moskowitz also summoned Garay to his
office and asked Garay if he had attended an IBEW Lo-
cal 3 meeting, and later asked Garay at a jobsite whether
he was going to vote “no” in the election. Moskowitz
further questioned employee Hodge at a jobsite whether
Hodge was on “his side,” a clear reference to whether
Hodge supported Moskowitz’ position against IBEW
Local 3, and Hodge untruthfully responded that he was
on Moskowitz’ side. There is no evidence that any of
this questioning occurred in the course of a friendly, cas-
ual conversation. Furthermore, that such questioning
would reasonably be taken as coercive is supported by
the fact that Hodge failed to answer Moskowitz’ question
truthfully.
For these reasons, we affirm the judge’s finding that
Respondents Matros/BTZ unlawfully interrogated em-
ployees in violation of Section 8(a)(1).
2. The judge found that BTZ’ recognition of UEW Lo-
cal 363 on April 1 constituted a violation of Section
8(a)(1) and (2), and that its contract with UEW Local
363 containing union-security and dues-checkoff provi-
sions constituted a violation of Section 8(a)(3). In so
finding, the judge relied on the “fact that the multi-
employer association had been dissolved . . . [and] the
bargaining history that had previously separated the Ma-
tros employees from the BTZ employees was no longer
in effect and therefore was no longer relevant or opera-
tive.” On this basis, the judge found that the only appro-
priate unit was a combined unit of Matros/BTZ employ-
ees.
We find merit in the Respondents’ argument that the
judge incorrectly put aside bargaining history in finding
that the only appropriate unit consists of a combined Ma-
tros/BTZ unit. When the IECA dissolved, the historical
basis of multiemployer bargaining was abandoned by the
parties to that agreement. See Pennsylvania Garment
Mfrs. Assn., 125 NLRB 185, 195 (1959). But the previ-
ous bargaining history remained, under which BTZ’ em-
ployees were treated as a separate bargaining unit. Be-
cause the record indicates that UFCW Locals 174 and
342 both acquiesced in the exclusion of BTZ employees
from the Matros unit, and that as of April 1, 2004, the
employees of BTZ were unrepresented, BTZ was free at
that time to recognize and enter into a collective-
bargaining agreement with UEW Local 363. See G.M.
Trimming, Inc., 279 NLRB 890, 897–898 (1986) (the
“conclusion that Local 169 acquiesced in the exclusion
of GM employees from the unit . . . mandates a finding
that GM did not violate [the Act] by entering into a col-
lective-bargaining agreement with Local 157 . . . [whose]
employees were not represented by Local 169”).
For these reasons, we reverse the judge’s finding that
BTZ violated Section 8(a)(1) and (2) by recognizing
UEW Local 363, and violated Section 8(a)(3) by signing
the contract containing union-security and dues-checkoff
provisions.8

8 The judge also found that by accepting recognition and signing the
contract with BTZ, UEW Local 363 violated Sec. 8(b)(1)(A) and (2).
However, as the General Counsel notes in exceptions, the complaint did
not allege these violations. Accordingly, we reverse the judge’s
8(b)(1)(A) and (2) findings.
As stated above, in November when IBEW Local 3’s objections to
the May 21 election were pending, Matros recognized UEW Local 363
as the bargaining representative of Matros employees and signed a
collective-bargaining agreement and a successor agreement containing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD572
3. The complaint alleges that Respondents Ma-
tros/BTZ violated Section 8(a)(3) and (1) by discharging
Garay and Wencewicz and by failing to award Wence-
wicz, Gonzalez, and Hodge pay raises and “retroactive
payments” because these employees supported IBEW
Local 3.9 The judge analyzed these allegations under
Wright Line.10
As stated recently in SFO Good-Nite Inn, LLC:11
Under Wright Line, the General Counsel must
first show, by a preponderance of the evidence, that
protected conduct was a motivating factor in the em-
ployer’s adverse action. Once the General Counsel
makes that showing by demonstrating protected ac-
tivity, employer knowledge of that activity, and
animus against protected activity, the burden of per-
suasion shifts to the employer to show that it would
have taken the same adverse action even in the ab-
sence of the protected activity. United Rentals, 350
NLRB [951] (2007) (citing Donaldson Bros. Ready
Mix, Inc., 341 NLRB 958, 961 (2004)). If, however,

union-security and dues-checkoff provisions. UEW Local 363 ac-
cepted recognition from Matros and signed the contracts.
The judge found, and we agree, that under the rule set forth in
Bruckner Nursing Home, 262 NLRB 955, 957 (1982), and extended in
Wackenhut Corp., 287 NLRB 374, 375–376 (1987), it is unlawful for
an employer to recognize a nonincumbent union, and equally unlawful
for a union to accept recognition, when a representation petition of a
rival nonincumbent union “is in process.” As explained in Wackenhut,
a representation petition “is in process” when election objections are
pending before the Board. Accordingly, applying Bruckner and Wack-
enhut, the judge correctly found that Matros violated Sec. 8(a)(1) and
(2) by recognizing UEW Local 363 when IBEW Local 3’s election
objections were pending, and violated 8(a)(3) by signing contracts with
UEW Local 363 containing union-security and dues-checkoff provi-
sions. By accepting recognition and signing the contracts, UEW Local
363 violated Sec. 8(b)(1)(A) and (2). Because the contracts were
unlawful, we further agree with the judge that UEW Local 363 violated
Sec. 8(b)(1)(A) by threatening employee Hodge that the union-security
clause in the contract would be enforced against him if he refused to
sign a union membership card.
The General Counsel excepts to the judge’s failure to address his al-
ternative theories, set forth in fn. 5 of the judge’s decision, for finding
unlawful Matros’ recognition of UEW Local 363 and UEW Local
363’s acceptance of recognition. In light of our findings that the recog-
nition and acceptance of recognition were unlawful under Bruckner and
Wackenhut, we find it unnecessary to address the General Counsel’s
alternative theories of violations.
In accord with our finding that only Matros, and not BTZ, unlaw-
fully recognized UEW Local 363 and signed collective-bargaining
agreements with UEW Local 363, we shall modify the Order to reflect
these findings.
9 The judge did not address complaint allegation 11, which alleges
that Gonzalez was unlawfully threatened with layoff. Because no party
excepted to the judge’s failure to address this complaint allegation, we
deem it dismissed.
10 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
11 352 NLRB 268, 269 (2008).
the evidence establishes that the reasons given for
the employer’s action are pretextual—that is, either
false or not in fact relied upon—the employer fails
by definition to show that it would have taken the
same action for those reasons, and thus there is no
need to perform the second part of the Wright Line
analysis. Id. [at 951–952] (citing Golden State
Foods Corp., 340 NLRB 382, 385 (2003); Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982)).
With respect to pretext, the Board may infer both knowl-
edge of protected activity and animus towards that activity if
the proffered reasons for adverse personnel action are found
to be pretextual. Montgomery Ward & Co., 316 NLRB
1248, 1253 (1995), enfd. mem. 97 F.3d 1448 (4th Cir.
1996). See also Metropolitan Transportation Services, 351
NLRB 657, 657–659 fn. 6 (2007).12
These principles apply here. Moskowitz was the one
who made the decisions to discharge Garay and Wence-
wicz and to deny raises and retroactive payments to
Wencewicz, Gonzalez, and Hodge. The judge found that
Moskowitz was not a credible witness and that his as-
sertedly lawful reasons for discharge (or, in Wencewicz’
case, his claim that Wencewicz quit) and denying em-
ployees raises and retroactive payments were pretextual.
We find no basis for disagreeing with these conclusions.
The judge provided a sufficient rationale for his credi-
bility determination. He relied on his observation of
Moskowitz’ demeanor in discrediting his testimony, as
well as documentary evidence that directly contradicted
his testimony. Specifically, Moskowitz testified that he
did not become aware of the organizing efforts of IBEW
Local 3 until April 5, but in a letter to employees on
March 23, Moskowitz made clear that he was aware of
the Union’s organizing activities. Further, Moskowitz
explained in a letter to a State agency that he discharged
Garay “two weeks” after Garay’s last act of alleged “in-
subordination,” but the actual writeup of the insubordi-
nate act states that it occurred just 4 days prior to Garay’s
discharge. The judge further noted that in the letter to
the State agency, Moskowitz explained that Garay re-
ceived “numerous warnings” prior to his discharge, but
none were produced in evidence and Garay testified that

12 Thus, Chairman Schaumber finds it unnecessary to rely on the
judge’s finding that Moskowitz’ knowledge of the discriminatees’
union activity was based on the inference that Supervisor Estamabil,
whom the judge discredited, told Moskowitz that he saw the discrimi-
natees at the IBEW Local 3 meetings.
Member Liebman agrees with Chairman Schaumber that knowledge
of protected activity is properly inferred here from the pretextuality of
Moskowitz’ explanations. In addition, she agrees with the judge’s
inference that Estamabil told Moskowitz that he saw the discriminatees
at the IBEW Local 3 meeting.
MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP. 573
he received none. Other evidence supporting the judge’s
credibility findings includes the substantial mutual cor-
roboration of the employees whom Moskowitz unlaw-
fully interrogated, threatened, and promised benefits to,
as compared to Moskowitz’ summary denial that he en-
gaged in this conduct.
In sum, because we agree with the judge’s well-
supported credibility determination, we affirm his find-
ings that Moskowitz’ assertion that Wencewicz quit and
the reasons advanced by Moskowitz for discharging Ga-
ray and Wencewicz and denying raises and retroactive
payments to Gonzalez, Hodge, and Wencewicz were
pretextual. Accordingly, we find that by these acts, the
Respondents violated Section 8(a)(1) and (3).13
ORDER
A. The Respondents, Matros Automated Electrical
Construction Corp. and BTZ Electrical Corp., New York,
New York, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Recognizing and entering into collective-bargain-
ing agreements with UEW Local 363 as the collective-
bargaining representative of the employees of Matros
Automated Electrical Construction Corp., and cease giv-
ing effect to the union-security and dues-checkoff clauses
of the Matros/UEW November 15, 2004 contract or any
subsequent agreements, unless and until that labor or-
ganization is certified by the Board as the collective-
bargaining representative of such employees.
(b) Interrogating employees about their sympathies or
activities on behalf of IBEW Local 3.
(c) Promising employees promotions and other bene-
fits in order to dissuade them from voting for IBEW Lo-
cal 3.

13 The judge mistakenly found in his Conclusions of Law 7 and 8
that the denial of raises and the discharge of Wencewicz violated only
Sec. 8(a)(1). In accord with the complaint allegations and the judge’s
Wright Line analysis, we correct this error by clarifying that this con-
duct also violated Sec. 8(a)(3).
The General Counsel argues on exception that, although the judge
correctly found that the Respondents unlawfully denied raises to the
three discriminatees in November 2004, he erred by failing to find the
same violations with respect to the raises that were not paid Hodge and
Gonzalez in December 2005. The General Counsel contends that the
judge also erred by failing to find that the retroactive payment made to
unit employees on January 20, 2005, was unlawfully denied to Wence-
wicz, who was not discharged until the next day. We find merit in
these exceptions. There is no dispute that Hodge and Gonzalez did not
receive the raises paid other unit employees in December 2005, or that
Wencewicz did not receive the retroactive payment made to unit em-
ployees on January 20, 2005, when he was still employed. Moskowitz
offered no reason for denying Wencewicz the retroactive payment, and
his reasons for denying Hodge and Gonzalez the December 2005 raises
were the same reasons the judge rejected as pretextual when addressing
the November raises.
(d) Threatening employees that it would shut down the
business if IBEW Local 3 won the election.
(e) Telling employees that even if IBEW Local 3 won
the election it would never sign a contract with that labor
organization.
(f) Discharging Aparicio Garay and Jaroslaw Wence-
wicz because of their activities and support for IBEW
Local 3.
(g) Failing to give raises or retroactive payments to Jo-
seph Hodge, Jaroslaw Wencewicz, and Gilberto Gon-
zalez because of their activities and support for IBEW
Local 3.
(h) Giving illegal assistance to UEW Local 363.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withhold recognition from UEW Local 363 as the
representative of the employees of Matros Automated
Electrical Construction Corp. unless and until that Union
has been certified by the Board as their exclusive collec-
tive-bargaining representative.
(b) Jointly and severally with UEW Local 363 reim-
burse all former and present employees employed for all
initiation fees, dues, and other moneys that may have
been exacted from them, with interest, pursuant to the
November 15, 2004 collective-bargaining agreement
between Matros Automated Electrical Construction
Corp. and UEW Local 363.
(c) Within 14 days from the date of this Order, offer
Aparicio Garay and Jaroslaw Wencewicz full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(d) Make Aparicio Garay and Jaroslaw Wencewicz
whole, with interest, for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the
decision.
(e) Make whole, with interest, Joseph Hodge, Jaroslaw
Wencewicz, and Gilberto Gonzalez for the loss of earn-
ings they suffered as a result of the failure of the Re-
spondent to give them raises or retroactive payments
given to its other employees.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful actions
against Aparicio Garay and Jaroslaw Wencewicz, and
within 3 days thereafter notify them in writing that this
has been done and that the discharges will not be used
against them in any way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD574
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of initiation fees,
dues, backpay and other moneys due under the terms of
this Order.
(h) Within 14 days after service by the Region, post at
its facilities in New York, New York, copies of the at-
tached notice marked “Appendix A.”14 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent Em-
ployer’s authorized representative, shall be posted by the
Respondent Employer and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent Employer to en-
sure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pend-
ency of these proceedings, the Respondent Employer has
gone out of business or closed the facility involved in
these proceedings, or sold the business or the facilities
involved herein, the Respondent Employer shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since April 1, 2004.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
B. The Respondent, Local 363, United Electrical
Workers of America, IUJHAT, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Acting as the collective-bargaining representative
of the employees of Matros Automated Electrical Con-
struction Corp. pursuant to the November 15, 2004
agreement unless and until we are certified by the Board
as the collective-bargaining representative of such em-
ployees.
(b) Entering into collective-bargaining agreements
with Matros Automated Electrical Construction Corp.
and cease giving effect to the union-security and dues-

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
checkoff clauses of such contracts, unless and until UEW
Local 363 is certified by the Board as the collective-
bargaining representative of the employees of Matros
Automated Electrical Construction Corp.
(c) Threatening employees that it would cause their
discharge if they did not sign applications to become
members of UEW Local 363.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with Matros Automated Elec-
trical Construction Corp., reimburse all former and pre-
sent employees employed for all initiation fees, dues, and
other moneys that may have been exacted from them,
with interest, pursuant to the November 15, 2004 collec-
tive-bargaining agreement between Matros Automated
Electrical Construction Corp. and UEW Local 363.
(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of initiation fees,
dues, and other moneys due under the terms of this Or-
der.
(c) Within 14 days after service by the Region, post at
its offices and meeting halls copies of the attached notice
marked “Appendix B.”15 Copies of the notice, on forms
provided by the Regional Director for Region 2, after
being signed by Respondent UEW Local 363’s author-
ized representative, shall be posted by UEW Local 363
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent UEW Local 363 to ensure that the notices
are not altered, defaced, or covered by any other mate-
rial.
(d) Sign and return to the Regional Director copies of
the notice for posting by Respondent Matros/BTZ.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent UEW Local 363 has
taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES

15 See fn. 14, supra.
MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP. 575
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT recognize and enter into collective-
bargaining agreements with UEW Local 363 as the col-
lective-bargaining representative of the employees of
Matros Automated Electrical Construction Corp., and
will cease giving effect to the union-security and dues-
checkoff clauses of the Matros/UEW November 15, 2004
contract or any subsequent agreements, unless and until
that labor organization is certified by the Board as the
collective-bargaining representative of such employees.
WE WILL NOT discharge employees, withhold wage in-
creases or other benefits, or otherwise retaliate against
any of our employees because of their membership in or
support for IBEW Local 3.
WE WILL NOT interrogate employees about their sym-
pathies or activities on behalf of IBEW Local 3.
WE WILL NOT promise our employees promotions and
other benefits in order to dissuade them from voting for
IBEW Local 3.
WE WILL NOT threaten our employees that we would
shut down the business if IBEW Local 3 won the election
or became the bargaining representative.
WE WILL NOT tell our employees that even if IBEW
Local 3 won an election we would never sign a contract
with that labor organization.
WE WILL NOT give illegal assistance to UEW Local
363.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
WE WILL withhold recognition from UEW Local 363
as the representative of our Matros employees unless and
until that Union has been certified by the Board as their
exclusive collective-bargaining representative.
WE WILL jointly and severally with UEW Local 363
reimburse all former and present Matros employees for
all initiation fees, dues, and other moneys exacted from
them, with interest, pursuant to the November 15, 2004
collective-bargaining agreement between Matros Auto-
mated Electrical Construction Corp. and UEW Local
363.
WE WILL, within 14 days from the date of the Board’s
Order, offer Aparicio Garay and Jaroslaw Wencewicz,
who have been found to have been illegally discharged,
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Aparicio Garay and Jaroslaw Wence-
wicz whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earn-
ings, plus interest.
WE WILL make whole, with interest, Jaroslaw Wence-
wicz, Gilberto Gonzalez, and Joseph Hodge for the loss
of earnings they suffered as a result of our failure to give
them raises or retroactive payments given to our other
employees.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Aparicio Garay and Jaroslaw Wence-
wicz, and WE WILL, within 3 days thereafter, notify these
employees in writing that this has been done and that
these actions will not be used against them in any way.
MATROS AUTOMATED ELECTRICAL CONSTRUC-
TION CORP., AND BTZ ELECTRICAL CORP.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT act as the collective-bargaining repre-
sentative of the employees of Matros Automated Electri-
cal Construction Corp. pursuant to the November 15,
2004 agreement unless and until we are certified by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD576
Board as the collective-bargaining representative of such
employees.
WE WILL NOT maintain or give any force or effect to
the November 15, 2004 collective-bargaining agreement
between us and Matros Automated Electrical Construc-
tion Corp., and cease giving effect to the union-security
and dues-checkoff clauses of such contract, unless and
until we are certified by the Board as the collective-
bargaining representative of such employees.
WE WILL NOT threaten employees of BTZ that we will
cause their discharge if they do not sign applications to
become members of UEW Local 363.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
WE WILL, jointly and severally with the employer, re-
imburse all former and present employees for all initia-
tion fees, dues, and other moneys exacted from them,
with interest, pursuant to the November 15, 2004 collec-
tive-bargaining agreement between Matros Automated
Electrical Construction Corp. and UEW Local 363.
LOCAL 363, UNITED ELECTRICAL WORKERS OF
AMERICA, IUJHAT
Allen M. Rose, Esq. and Nancy Slahetka, Esq., for the General
Counsel.
Richard I. Milman, Esq., for the Employers.
Eric J. LaRuffa, Esq. and Richard M. Greenspan, Esq., for
Local 363.
Richard S. Brook, Esq., for the Charging Parties.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York on various days from March 6 to June 8,
2006.
The charge and amended charges in Case 2–CA–36296 were
filed by Local 3 against Matros Automated Electrical Construc-
tion Corp. and BTZ Electrical Corp. on May 27, July 9, and
August 27, 2004. The charge in Case 2–CA–36297 was filed
by Local 3 against Matros and BTZ on May 27, 2004. The
charge in Case 2–CA–36273 was filed by Local 3 against Ma-
tros on January 7, 2005. The charge and amended charge in
Case 2–CA–36552 was filed by Joseph Hodge against Matros
on October 1, 2004, and February 15, 2005. The charge in
Case 2–CA–36625 was filed by Aparicio Garay against Matros
on November 2, 2004. The charge and amended charge in Case
2–CA–36707 was filed by Gilberto Gonzales against Matros on
December 21, 2004, and March 11 and December 16, 2005.
The charge in Case 2–CA–36779 was filed by Jaroslaw Wence-
wicz against Matros on February 9, 2005. The charge in Case
2–CB–20075 was filed by Hodge against Local 363 on Decem-
ber 21, 2004. The charge in Case 2–CB–20099 was filed by
Local 3 against Local 363 on January 7, 2005.
A consolidated complaint was issued in Cases 2–CA–36296,
2–CA–36297, 2–CA–36723, 2–CB–20075, and 2–CB–20099
on May 23, 2005. Thereafter, a second amended consolidated
complaint was issued on February 6, 2006. This added Cases
2–CA–36552, 2–CA–36625, 2–CA–36707, and 2–CA–36779.
The second consolidated complaint as subsequently amended
made the following allegations:
1. That Matros and BTZ are affiliated business enterprises
having a place of business at 214 West 29th Street, New York,
New York, and constitute a single employer within the meaning
of the Act.
2. That on April 12, 2004, Local 3, IBEW filed a petition in
Case 2–RC–22832 pursuant to which an election was held on
May 21, 2004.
3. That on or about May 20, 2004, the Respondent by Stuart
Moskowitz, its president told employees (a) that it would be
futile to select Local 3 as their representative because he would
never sign a contract with Local 3; and (b) threatened employ-
ees that he would close his business if Local 3 won the election.
4. That in May 2004, the Respondent by Stuart Moskowitz,
promised employees promotions and other benefits if Local 3
did not win the election.
5. That in April and May 2004, Respondent interrogated em-
ployees about their union activities and sympathies.
6. That on or about May 21, 2004 (the day of the election),
the Respondent by Stuart Moskowitz threatened employees
with discharge if they voted for Local 3.1
7. That on or about January 19, 2005, the Respondent threat-
ened to lay off Gilberto Gonzalez.
8. That on or about February 14, 2005, the Respondent
threatened to lay off Joseph Hodge.
9. That in or about April and May 2004, including on May
20, 2004, the Respondent illegally assisted Local 363 by or-
chestrating meetings during working hours, requiring employ-
ees to attend these meetings and having management attend the
meeting on May 20, 2004.
10. That on April 1, 2004, BTZ granted recognition to and
entered into a contact with Local 363, notwithstanding that
Union’s lack of majority status, in a unit including all electri-
cians, electrical maintenance mechanics, helpers and appren-
tices and trainees, but excluding office clerical employees,
professional employees, guards and supervisors as defined in
the Act.
11. That in November or December 2004, Matros granted
recognition to and entered into a contact with Local 363, not-
withstanding that Union’s lack of majority status, in a unit
which included all electricians, electrical maintenance mechan-
ics, helpers and apprentices and trainees, but excluding office
clerical employees, professional employees, guards and super-
visors as defined in the Act.
12. That the contracts between Matros, BTZ, and Local 363
contained union-security clauses and dues-checkoff clauses
which required membership after 31 days of employment; re-
quired the Respondent to discharge employees who were not
members in good standing and required the Respondent to de-
duct and remit union dues to Local 363.

1 In its brief, the General Counsel withdrew this allegation.
MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP. 577
13. That in or about November and December 2004, Matros
assigned job classifications to its employees and in doing so
gave lower classifications to employees who supported or as-
sisted Local 3.
14. That on or about November 19, 2004, and December 9,
2005, Matros, for discriminatory reasons, failed to give wage
increases to Gilberto Gonzalez, Joseph Hodge, and Jaroslaw
Wencewicz because they assisted or supported Local 3.
15. That on or about January 20, March 11, and June 30,
2005, Matros for discriminatory reasons, failed to grant retroac-
tive payments to Gonzalez, Hodge, and Wencewicz.
16. That Matros discharged the following employees for dis-
criminatory reasons:
Aparicio Garay October 29, 2004
Jaroslaw Wencewicz January 24, 2005
Gilberto Gonzalez December 14, 2005
17. That since about December 2, 2003, Matros and Local
342 have had a discriminatory practice of applying the wage
rates and benefits of a labor contract only to those employees
that Matros had selected to be members of Local 342 and not to
employees who are not members.2
18. That on or about December 8, 2004, Local 363, by
Charles E. Shimkus, threatened employees with loss of em-
ployment unless they joined Local 363.
In addition to the usual denials, the Respondents made a
number of assertions that are described below in order to de-
lineate some of the issues.
They contend that BTZ was a company established in 1997
as a separate entity and operated for many years, with the ex-
plicit or implicit consent of Local 342, as a nonunion enter-
prise, whose employees were not represented by the Union
which represented the employees of Matros and who were not
covered by that collective-bargaining agreement. They assert
that since the employees of BTZ have historically constituted a
separate unit, the fact that they were not paid in accordance
with the Matros/Local 342 contract (over a period of about than
7 years), cannot be construed as being illegal. Moreover, they
argue that this allegation, made for the first time in 2004, can
hardly be viewed as being timely under Section 10(b) of the
National Labor Relations Act (the Act).
They also contend that BTZ, as a historically separate bar-
gaining unit, was entitled to recognize Local 363 in April 2005
based on that union’s demonstrated majority support. Although
not asserted, an argument could also be made that because
BTZ, is a construction industry employer and the unit consists
of construction industry workers, it was entitled to recognize
Local 363 under Section 8(f) of the Act even if that Local 363
did not obtain majority support from BTZ’ employees.
With respect to the discharge of Gilberto Gonzalez, the
Company asserts that he was discharged because he refused to

2 As to the “members only” theory, the charge that relates to this
would be Case 2–CA–36296–1 filed on July 8, 2004. This alleged, in
part, that the Respondent violated the Act by “repudiating and refusing
to give any effect to any of the terms of the UFCW, CBA to the em-
ployees of unit employees employed by BTZ.”
do his assigned work and showed disrespect to the owner, Stu-
art Moskowitz.
With respect to the discharge of Aparicio Garay, the Com-
pany asserts that this was caused by his remarks to a company
supervisor designed to humiliate him in the presence of other
employees. Garay is accused of calling Supervisor John Mata a
rat in front of other employees.
With respect to Jaroslaw Wencewicz, the Company asserts
that after he was laid off for a few days, he refused to respond
when asked to return to work. It therefore asserts that he quit.
The Company responds to the General Counsel’s contention
that Gilberto Gonzalez and Jaroslaw Wencewicz were misclas-
sified because of their union activities by asserting that they
were classified in accordance with their skill levels and were
not, in any event, given any reduction in their pay. Similarly,
the Company denies that it refused to give raises to any em-
ployees for discriminatory reasons.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the employers are engaged
in commerce as defined in Section 2(6) and (7) of the Act. I
also find that all of the labor unions involved in this case, either
were or are now, labor organizations within the meaning of
Section 2(5) of the Act. (Local 174 went out of existence when
it was merged into Local 342.)
II. THE RELEVANT FACTS
A. The History of the Companies and the History
of Bargaining
Both Matros and BTZ are New York corporations that are
engaged in the business of providing electrical contracting ser-
vices for new and renovated buildings and apartments. They
employ a group of electrical workers who do this work and who
have a variety of skill levels from beginner to mechanic. The
owner of Matros and the person who runs both companies is
Stuart Moskowitz. He is a “master” electrician who holds a
New York license to do this type of work. All of the employ-
ees who work for him do so under his immediate or ultimate
direction and do so under his license.
At the hearing, it was stipulated that Matros and BTZ consti-
tute a singe employer within the meaning of Section 2(2), (6),
and (7) of the Act. Respondents, did not, however, stipulate
that the employees on each corporate payroll constituted a sin-
gle unit. They maintain that notwithstanding the single-
employer status, the employees of each corporation constitute a
separate appropriate collective-bargaining unit.
Joe Estamabil and Peter Azic are project managers and are
the supervisors who are mainly assigned by Moskowitz to Ma-
tros. John Mata and Victor Treccaricho are project managers
and the supervisors who are mainly assigned by Moskowitz to
BTZ. The evidence shows that all four of these individuals,
although mostly assigned to either Matros or BTZ, can and do
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD578
supervise employees who happen to be on the payrolls of both
Companies.
Stuart Moskowitz is the sole owner of Matros, which he pur-
chased in, or about 1996 from a man named Alan Matros. Be-
fore this, Moskowitz became an electrician and was a member
of Local 3, IBEW. He went through the Local 3 apprenticeship
program and became a master electrician. After about 12 years
working for Local 3 shops, he opened his own business as
Automated Electric. When he purchased the business from
Alan Matros, Moskowitz changed the name of the company
from Matros Electrical to Matros Automated Electrical. He
nevertheless, kept the same employees, supervisors and cus-
tomers of the predecessor.
After acquiring Matros, Moskowitz adopted the collective-
bargaining agreement in existence with Local 174 United Food
and Commercial Workers, AFL–CIO and applied its terms to
all of the employees of the new company. That contract was a
multiemployer agreement that was made with the Industrial
Electrical Contractors Association (IECA), and ran from July 1,
1996, to June 30, 2001. The Respondents point out that this
agreement and the successor agreement had a split shop clause
which allowed the Company to recognize another union for
workers who did not do bargaining unit work. The bargaining
unit covered by these agreements was the electrical workers
employed by Matros and the electrical workers employed by
the other employer-members of the Association.
In 1997, Moskowitz formed another company called BTZ
and he ran this as a nonunion company. His mother, living in
Queens, is the sole stockholder of BTZ. This new company is
also engaged in the electrical business. And although nomi-
nally owned by his mother, BTZ is actually run by Moskowitz
who describes it as a company doing smaller jobs and employ-
ing people who have had no experience or limited experience in
the electrical business. He testified that as they get experience
and gain competence as electrical workers, he may offer them
jobs at Matros. If one were to make some distinction, it ap-
pears that BTZ employees are more likely to be assigned to do
residential apartments whereas Matros employees are more
likely to be assigned to do commercial work or new construc-
tion. But in both cases, the work being done is electrical work
and BTZ does its work as a subcontractor to Matros and not on
its own. Obviously, these are not arm’s-length transactions.
Moskowitz explains that the customers know the name Matros
and not BTZ, so that most job orders are held in the name of
Matros. All contracts, for both companies are signed by
Moskowitz.
Both Matros and BTZ use the same offices at 214 West 29th
Street. (Moskowitz’ mother has a space in her home, which is
used as a BTZ address.) They both utilize the same office staff,
the same accountants and the same telephones. Although
Moskowitz testified that there are two project man-
ager/supervisors for each company, they will fill in for each
other when needed.
Stuart Moskowitz hires and fires for both companies. In the
majority of cases, he assigns the work for both companies and
he is the person who sets labor and personnel policies for both
companies. For both companies, Moskowitz testified that he is
the person who decides what classifications the employees
should be assigned, who should be given raises and who should
be promoted.
The evidence shows that there has been and continues to be
substantial interchange between the employees of Matros and
BTZ. For example, among the group of about 29 employees
who were listed on the Matros payroll during 2004 (see GC
Exh. 20), Moskowitz testified that about 40 percent of them had
previously worked on the BTZ payroll. Also, the evidence
shows that on numerous jobsites, employees from both compa-
nies worked on the same jobsite. General Counsels’ witnesses
including Wencewicz, Joseph Hodge, Pablo Arcy, Gilberto
Gonzalez, and others, credibly testified that in 2003 and 2004,
on many of the projects that they worked (as employees on the
Matros payroll), they worked alongside employees who are on
the BTZ payroll. Examples of such projects were 315 Hudson
Street, 44 Wall Street, 5 Hanover Square, 520 8th Avenue,
1359 Broadway, and 200 South Street.
As described above, the evidence shows that notwithstanding
the close relationship between Matros and BTZ, Moskowitz did
not apply the terms and conditions of the Local 174 contract to
the electrical employees that he put on the BTZ payroll and I
surmise that that this arrangement was tacitly accepted and
condoned by Local 174. There is no question but that for a
substantial period of time and up to the events in 2004,
Moskowitz, as the operator of Matros and BTZ had, de facto,
set up two separate groups of employees who were treated as
separate entities, one of which was given the wages and bene-
fits of the collective-bargaining agreements (Matros) and the
other (BTZ) who were not. I note that this arrangement was not
kept a secret as the evidence shows that for many years, em-
ployees of both companies, and presumably the shop stewards
for Local 174, were well aware that employees who were first
put on the BTZ payroll were thereafter transferred to the Ma-
tros payroll and that employees of both companies worked with
each other on various jobsites. The evidence also shows that
they were aware that those on the Matros payroll were given
wages and benefits in accordance with Local 174’s multiem-
ployer contract and those on the BTZ payroll were not.
B. The Merger of Local 174 into Local 342 and the
Emergence of Local 3
At some point, Local 174 was put into trusteeship by its In-
ternational Union and in 2002 it was merged into Local 342.
Matros continued to operate under the terms of the 2001–2004
contract that had been executed between Local 174 and the
multiemployer association.
Raymond West, a Local 3 representative, testified that in
2001, he started to become involved in discussions with em-
ployees of the various employers in the Association, many of
whom wanted to join Local 3.
West testified that he was advised that Local 174 had been
put into trusteeship and had been taken over by Local 342. He
states that he had discussions with representatives of Local 342
who felt that they did not have the experience or expertise to
represent electricians. And so there were talks about Local 3
being designated as the representative for the employees to
administer the existing contract. This was done with an eye to
MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP. 579
having Local 3 take over the full representation of the employ-
ees when the 2001–2004 contract expired.
In December 2002, the newly designated Local 342 entered
into a service agreement with Local 3 IBEW whereby the col-
lective-bargaining agreement would be serviced by Local 3.
This agreement stated:
Effective January 1, 2003, IBEW Local 3, shall, acting on be-
half of UFCW local 342, service the employees employed by
the employers listed on Appendix A . . . . [lists Matros but not
BTZ]. Servicing for purposes of this agreement shall include
. . . administering the Collective Bargaining Agreement, filing
for and conducting arbitrations as appropriate, filing unfair la-
bor practices with the National labor Relations Board as ap-
propriate and initiating other administrative and legal actions,
all on behalf of UFCW Local 342. . . .
In April 2003, counsel for the Association (Fred Klein),
wrote to the Union stating that it would not recognize Local 3.
A charge was filed on this issue and the charge was withdrawn.
(Case 2–CA–35833 filed on Oct. 1, 2003.)
In the spring of 2004 and perhaps as early as February 2004,
Local 3 set up a series of about three meetings for employees of
the 12 participating members of the Association. The purpose
of these meetings was to convince the employees to designate
Local 3 as their direct bargaining representative. At one of
these meetings, an employee mentioned that he had been hired
by Matros and was put on the payroll of BTZ. He told union
representative Vincent McElroen that Moskowitz was running
two shops.
The credible evidence is that Joe Estamabil and Peter Azic,
two of the Respondent’s supervisors, attended some of these
meetings.
By the spring of 2004, Moskowitz was cognizant of the or-
ganizing activities of Local 3, is demonstrated by a letter he
sent to his employees on March 23, 2004:
You may be aware that Local 3 and Local 342 have
tried to force us to deal with Local 3 right now. We think
that Local 342 is trying to give Local 3 a head start for
when our union contract ends. We think that you should
be the ones to decide who speaks for you. We don’t think
that Local 3, Local 342 or even your Company should de-
cide for you. If there is going to be any change in unions
in the future, we think that should be your decision.
Local 3 and Local 342 signed an agreement that Local
3 would handle you issues for Local 342 for the remainder
of the union contract. Again, we think that this was a way
for Local 342 to give Local 3 a head start. If you had a
grievance, they wanted us to deal with Local 3. If the
shop had an issue, they wanted us to deal with Local 3.
We weren’t willing to be pushed around or have Local
3 forced on us or on you. We refused to deal with Local 3
and they took us to the Labor Board. We fought back—
and we won. The Labor Board said that we don’t have to
deal with Local 3 unless or until they win an election.
YOU and YOU ALONE get to decide who your union
will be. Local 3 and Local 342 can’t trade you off be-
tween them or make this decision for you. You have
many options—maybe more than you think you have—
and we’ll be writing to you about them in the coming
months. We believe (and we think some of you are begin-
ning to understand) that the more you know about Local 3,
the less you’ll want to be a part of it.
This letter clearly indicates that Moskowitz well understood,
by no later than March 23, 2004, that Local 3 was intent on
organizing the employees of the various members of the mul-
tiemployer association, including his own, and that Local 342,
which was the current representative, was going to stand aside
and allow Local 3 to take over. I cannot credit Moskowitz’
testimony to the extent that he denied having any knowledge of
Local 3’s activity in 2004 until about April 5, 2004, when he
received a petition for an election. Additionally, I note that the
Respondent’s “lack of knowledge” claim is belied by the evi-
dence showing that Supervisors Joe Estamabil and Peter Azic
attended some of the Local 3 meetings. And in the latter re-
gard, I do not think that Estamabil’s testimony was plausible or
credible insofar as he claimed that he did not tell Moskowitz
about attending these meetings. (Azic did not testify.)
Estamabil testified that when he attended the Local 3 meet-
ings he saw that about five or six Matros employees were pre-
sent; four of whom were Gilberto Gonzalez, Joseph Hodge,
Aparicio Garay, and Jaroslaw Wencewicz.
By letter dated April 1, 2004, Fred Klein, on behalf of the
Employer Association sent a letter to Local 342 stating that the
Association was disbanding and that the employers would be
negotiating on their own. This, in effect, destroyed the existing
bargaining unit wherein Matros employees had been part of a
multiemployer unit. It therefore rendered the bargaining his-
tory irrelevant.
C. Recognition of Local 363 by BTZ
On April 1, 2004, a card check was held and based on that,
Local 363 was recognized by BTZ as the representative of
BTZ’s electrical workers. General Counsel’s Exhibit 22 is a
document dated April 1, 2004, signed by arbitrator Gene
Coughlin, certifying that a majority of the 11 BTZ employees
had signed authorization cards for Local 363.3 General Coun-
sel’s Exhibit 23 is a collective-bargaining agreement dated
April 1, 2004, between BTZ and Local 363, which runs from
April 1, 2004, to November 30, 2005. It contains union-
security and dues-checkoff clauses. General Counsel’s Exhibit
24 is a contract between BTZ and Local 363 running from De-
cember 1, 2005, to December 30, 2008. This also contains
union-security and dues-checkoff clauses.
D. The Representation Petitions
On April 2, 2004, Local 363 filed a petition in Case 2–RC–
22822 involving the employees of Matros. This was soon
withdrawn and the Regional Director issued an order approving
the withdrawal on April 28, 2004.
On April 5, 2004, Local 3 filed a representation petition in-
volving the employees of the Association as a whole. This was
later withdrawn because Local 3 was advised that the Associa-

3 The General Counsels points out that the BTZ payroll journal, (GC
Exh. 41), shows that there were 20 employees on the BTZ payroll as of
April 1, 2004.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD580
tion had been disbanded. The Regional Director issued an or-
der approving the withdrawal on May 7, 2004.
On April 12, 2004, Local 3 filed individual petitions for each
employer that had previously been a member of the Associa-
tion. The Petition for Matros was Case 2–RC–22832.
On April 15, 2004, Local 342 notified the Regional Office
that it was disclaiming any interest in representing the employ-
ees of the members of the Association. This disclaimer was
reiterated on April 21, 2004.
In late April 2004, a conference was held at the Board’s of-
fices between Local 3 and all of the employers of the Associa-
tion. A stipulation for certification upon consent election was
executed by representatives of Local 3 and Matros and was
approved by the Regional Director on April 30, 2004. This
provided that an election be held on May 21, 2004. Local 3’s
representative testified that when he said that he had heard that
there was another company called BTZ, the Company’s attor-
ney stated that BTZ was not involved and that she didn’t want
to discuss it. The Stipulated Election Agreement does not men-
tion BTZ and the employees of BTZ were neither included nor
excluded from the unit, which at that time consisted of about 30
electrical employees. Also, neither the old union, Local 342,
nor Local 363 were parties to the election proceeding and nei-
ther was on the ballot. On May 21, 2004, the election was held
and Local 3 lost by a vote of 21 to 12. Local 3 filed objections
to the election but these have been held in abeyance by the
Regional Director.
On May 11, 2004, Local 3 filed a representation petition ask-
ing that an election be conducted amongst the electrical em-
ployees of BTZ. In response to this new petition, BTZ and
Local 363 asserted that Local 3’s petition should be dismissed
based on a contract bar argument. On May 19, 2005, Local 342
disclaimed any interest in being a party to the representation
case involving BTZ and that matter has been put on hold where
it remains today.
E. Alleged Preelection Misconduct
As noted above, Moskowitz distributed a letter to employees
dated March 23, 2004, that described his feelings about the
efforts of Local 3 to represent his employees. Aparicio Garay
testified that at this time, he was called into the office by
Moskowitz who told him that he wanted to talk about Local
363; that he was trying to get that Union for the employees and
that it had good benefits. According to Garay, Moskowitz told
him that his lawyer told him not to talk about this but that he
still wanted him to know which union he wanted to get for the
employees. Garay testified that Moskowitz asked him if he
would be part of his team and he responded; “I’m with you.”
Garay testified that in April 2004 Moskowitz asked him if he
had attended a meeting with Local 3 and that after he said yes,
Moskowitz asked who else was there. According to Garay,
Moskowitz asked what the Local 3 wage scale was and that
after discussing this subject, Moskowitz said that if he could get
the employees to select Local 363, their pay would be $25 per
hour for mechanics and $31 per hour for foremen.
According to Garay, he had a third conversation with
Moskowitz in early May 2004. Garay testified that Moskowitz
came to his jobsite and after asking him if he was going to sup-
port him by voting “no” in the election, he told Moskowitz; “I
got to listen to the rest of the people, I have to listen to every-
body.” He also testified that Moskowitz told him that he
wanted to get the employees to vote no so he could get the peo-
ple in Local 363. Garay testified that he responded, “[Y]ou do
whatever you have to do.”
Prior to the election held on May 21, 2004, Local 363 held
several meetings at the building on 214 West 29th street with
the employees who were on the Matros payroll. These were
held on a floor not owned or occupied by the Respondent com-
panies and their use was facilitated by Supervisor Joe Estamabil
with the building superintendent. At each meeting, the em-
ployees were called in from the field during working hours by
the Respondent’s receptionist and were paid for the time spent
at the meetings. Supervisors were present during these meet-
ings and Moskowitz admittedly spoke at the last meeting that
was held on the day before the election.4 There is no dispute
that at these meetings, Local 363, which was not on the ballot,
urged the employees to vote against Local 3 so that it could
represent the employees in the future.
Joseph Hodge testified that in the weeks before the election,
he was called to the shop by the receptionist to participate in
meetings that Local 363 held on company time and for which
Hodge was paid. He testified that during the first two meetings,
two of the project managers were present but didn’t say any-
thing. He also testified that during the last meeting, Moskowitz
told the employees that he couldn’t afford a contract with Local
3 and that even if Local 3 won the election, he would have to
negotiate but would not enter into a contract with them.
Gilberto Gonzalez testified that before the election he at-
tended meetings that were held in the shop at 29th Street where
Local 363 people spoke to employees. He testified that Local
363 representatives talked about that Union’s history and the
benefits it could offer. Although Gonzalez testified that com-
pany supervisors were present at the meeting, he did not recall
that they made any comments during the meetings. According
to Gonzalez, Moskowitz spoke at the final meeting and at first
told the employees how he had given jobs to people and trained
them to be electricians. Gonzalez testified that Moskowitz then
stated that he would not go with Local 3 and that if he lost the
election he was going to close the shop and move to Miami.
Jean Thony, an employee who was still employed by the Re-
spondent at the time of the hearing, also testified about these
meetings. Regarding the third meeting, he testified that the
Local 363 representatives said that the employees should vote
no so that if Local 3 lost the election, they could come in and
represent the employees. Thony testified that Moskowitz said
he will not go Local 3; that he would rather shut down and that
before he goes Local 3, hell will freeze over.
Hodge testified that during May 2004, Moskowitz on two
occasions, asked him if he supported the Company.
According to Wencewicz, about a week before the election
in May 2004, Mata asked him if he was going to vote for or
against Local 3. Wencewicz states that he responded that he
was going to vote for Local 3 because he was not very happy

4 Garay testified that he did not attend the third meeting where
Moskowitz spoke to the employees.
MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP. 581
with the way that Moskowitz was treating him and the other
workers. Wencewicz testified that later in the day, Moskowitz
spoke to him in the office and said that he had heard from Mata
that he (Wencewicz) was not happy with the way he was being
treated. According to Wencewicz, he responded that there were
other workers with less experience than him who had better
positions. He states that Moskowitz replied that in the future,
they were going to get rate increases and that everything was
going to be very favorable for the workers. At this point, ac-
cording Wencewicz, Moskowitz asked him if he was going to
vote for or against Local 3 and he said yes.
Wencewicz also testified that on the day before the election,
Moskowitz attempted to dissuade him from voting for Local 3.
He states that Moskowitz told him that even if we voted for
Local 3, he would never sign a contract with them.
Thony testified that in early May 2004, Moskowitz came to
his jobsite and spoke to him privately. According to Thony,
Moskowitz said: “Jean, I will always take care of you. You are
a good worker. I want you to stay with me.” Thony testified
that when he asked Moskowitz why he didn’t recognize him as
a mechanic, Moskowitz responded that he was close and that if
Local 3 lost the election, he would make him a mechanic.
Thony described more of the conversation but this was difficult
for me to understand. As best as I can tell, Moskowitz was
comparing Local 3 shops where there were layoffs to his own
company where he kept people working all the time and that
Local 3 was trying to run him out of business.
Moskowitz denied the statements that were attributed to him
by the General Counsels’ witnesses. He stated that he was
instructed by his counsel as to what he could or could not say
and that he wasn’t about to ignore them because the advice was
so expensive.
The Respondents also offered the testimony of John
DeVaynes another employee. DeVaynes testified that he was
the person who was primarily responsible for getting Local 363
interested in the employees and that it was he who arranged
with Joe Estamabil to get the space in the building for the Local
363 representatives to talk to the employees. He testified that
he had a meeting with employees at a jobsite before the election
and that he proffered his opinion that if Local 3 won, Mosko-
witz would close his business. With respect to the meeting held
on May 20, 2004, DeVaynes testified that Moskowitz said that
he wouldn’t sign a contract that would be detrimental to the
men and that would not benefit them.
The testimony of DeVaynes, aside from being different from
Moskowitz’, really doesn’t make much sense. What does he
mean when he testified that Moskowitz said that he wouldn’t
sign a contract that was detrimental to his employees? Since
the standard Local 3 contracts offer higher wages and condi-
tions, I don’t know what he could possibly mean by such a
statement. If such a contract would be detrimental to anyone, it
would more likely be detrimental to Moskowitz and not to his
employees.
With respect to the conduct described above, I conclude,
based on the credited testimony of Garay, Hodge, Wencewicz,
and Thony that the Moskowitz and Mata (a) interrogated em-
ployees about their union sympathies; (b) that Moskowitz at a
meeting held on May 20, 2004, told employees that even if
Local 3 won the election, he would never sign a contract with
them and that he would rather shut down the business; and (c)
that Moskowitz, in May 2004, promised employee Thony that
he would promote him and promised Thony and Wencewicz
that he would give other benefits to the employees if they voted
against Local 3. In all of these respects, I conclude that the
Respondent violated Section 8(a)(1) of the Act.
F. The Postelection Recognition of Local 363 by Matros
On November 15, 2005, a card check was held before arbi-
trator Martin F. Scheinman who certified that he was presented
with a payroll listing 30 Matros employees and that he counted
24 cards signed by those employees.
Thereafter, Moskowitz executed a collective-bargaining
agreement with Local 363 in relation to the employees on the
Matros payroll. This agreement had a term from November 1,
2004, to November 30, 2005. A new agreement was executed
in 2005 to run until November 30, 2008. The agreements con-
tained a union-security clause, requiring union membership
after 31 days of employment, and a dues-deduction clause.
Hodge testified, without contradiction that Local 363 represen-
tative Shimkus, told him that unless he filled out an application
for Local 363 membership, he would recommend to the em-
ployer that Hodge be fired. Of course, if the recognition were
lawful, then such a statement by Shimkus would be a perfectly
legal enforcement of what is a facially valid union-security
clause.
However, Matros’ recognition of Local 363 occurred while
the objections to the election was still pending. Accordingly,
the General Counsels contends that this recognition was unlaw-
ful as it took place when there was an existing question con-
cerning representation. It could also be argued that this recog-
nition of a rival union while the NLRB was still processing an
election petition, interfered with the Board’s processes to the
detriment of the employees’ right to have their choice of a bar-
gaining representative determined by a secret-ballot election.5
G. Alleged Discriminatory Actions (Apart from the
“Members Only” Allegation)
The complaint alleges that the Respondent, motivated by a
desire to retaliate against employees because of their activities
on behalf of Local 3 IBEW, discharged Aparicio Gary on Oc-
tober 29, 2004, Jaroslaw Wencewicz on January 24, 2005, and
Gilberto Gonzalez on December 14, 2005. The complaint also
alleges that the Respondents, for the same reason, assigned
Gilberto Gonzalez and Jaroslaw Wencewicz to lower classifica-
tions than what they were entitled to. Finally, the complaint
alleges that the Respondent, for discriminatory reasons, failed
to give raises and/or retroactive payments to Gilberto Gonzalez,
Joseph Hodge.

5 The General Counsels contends that the recognition of Local 363
by Matros could not have been lawful for two other reasons. First, that
it was granted in an inappropriate unit inasmuch as the only appropriate
unit at the time would have consisted of the employees on the payrolls
of Matros and BTZ. And second, if the only appropriate unit would be
based on the combined set of employees then the Union could not have
had a majority of cards because at that time, the combined unit would
have had at least 50 employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD582
The legal principle relating to whether or not an adverse ac-
tion taken against an employee was illegally motivated is set
forth in Wright Line, 251 NLRB l083 (1980), enfd. 622 F.2d
899 (1st Cir. 1981), cert. denied 495 U.S. 989 (1982). Once the
General Counsels has established a prima facie showing of
unlawful motivation, the burden is shifted to the Respondent to
establish that it would have taken the same action for good
cause despite the employee’s union or protected activities.
1. The discharge of Aparicio Garay
Aparicio Garay was initially hired in 1997 and at various
times was either on the BTZ or Matros payrolls. At various
times he has been assigned to be a foreman, thereby indicating
to me that Moskowitz felt that Garay’s skill level was at a rea-
sonably high level. Garay testified that during 2003 and 2004,
he was a foreman at a number of jobs where the work force was
composed of people who were on both corporate payrolls. All
were doing electrical work.
Garay testified that he first became familiar with Local 3
IBEW in 2002 when Local 174 (the incumbent union), talked to
employees about the possibility of them being represented by
Local 3 IBEW. He testified that after that time, he was a vocal
supporter of Local 3 and spoke to employees in support of Lo-
cal 3 at various jobsites.
In the spring of 2004, Garay attended a number of meetings
held by Local 3 with employees from the various employers
that were part of the existing multiemployer unit. The purpose
of these meetings was to acquaint the employees with Local 3
and to convince them to allow Local 3 to independently repre-
sent them. Attending some of these meetings was a relatively
small number of Matros employees, including Garay, Hodge,
Wencewicz, and Gonzalez. Also attending some of these Local
3 meetings were Estamabil and Azic, Matros project managers.
As noted above, I do not believe Estamabil’s testimony that he
did not notify Moskowitz about these meetings and who at-
tended them.
Garay testified that from about March 23, 2004, to shortly
before the election, he had three conversations with Moskowitz
and one with Supervisor John Mata. He testified that during
these conversations, Moskowitz essentially asked him if he
supported the Company and urged him to favor Local 363. It
seems to me that Garay’s responses, at that time, were non-
committal; neither indicating support for Local 3 nor support
for Local 363. Based on demeanor and the consistency of his
testimony, I am going to credit Garay’s testimony.
The election was held on May 21, 2004, and Local 3, IBEW
lost. Joseph Hodge was the observer for Local 3.
Garay testified that in July 2004, John Mata asked him if he
was a Local 3 member and that he replied that he was not.
Garay states that when Mata insisted that Garay was a member,
he turned to Mata and said, “Are you a rat?”
On or about August 11, 2004, Garay left his worksite early
and was docked a half hour’s pay by Moskowitz. Prior to this
incident, Garay had never been disciplined in any way and had
never received any warnings. There is no contention by the
General Counsels that the docking of his pay was discriminato-
rily motivated.
On August 31, 2004, Garay circulated a long letter in which
he expressed why he was supporting Local 3 IBEW.
Previously, Garay had been a supporter of Local 3, but per-
haps in a more restrained way than Gilberto Gonzales and Jo-
seph Hodge. Garay concedes that Moskowitz had given him
three separate and substantial loans in 2002 and 2003 and this
could show that Moskowitz liked Garay. But this cuts both
ways. Betrayal is not something that happens between ene-
mies or adversaries. It only occurs between people who were
friends. When Garay publicly expressed his opinions on Au-
gust 31, 2004, this might very well have been viewed by
Moskowitz as a betrayal by someone that he had previously
trusted. Garay was discharged less than 2 months later.
In September 2004, Garay was in Panama to attend his fa-
ther’s funeral. He returned on September 21 and resumed
working on September 22.
According to Garay, he was talking to Gilberto Gonzalez at
the jobsite, when he saw John Mata approaching. He states that
he told Gonzalez; “Watch out what you’re saying because this
guys a rat.” Garay testified that this incident occurred soon
after he returned from Panama, and that it was the second and
last time that he referred to Mata as a rat. He states that he
heard nothing more about either “rat” incident and received no
warnings about them.
Garay was discharged on October 29, 2004. He testified that
he was told of his termination by Victor Treccaricho, who did
not give him any reason.
John Mata testified that sometime in September or October
2004, he was temporarily assigned to supervise the Kate Spade
job where Garay and Gonzalez were working. He states that on
the second or third time that he visited the site, he found that
Garay and Gonzalez had left about a half hour early without
permission from the office. Mata testified that when told
Moskowitz about the incident, Moskowitz told him that Garay
would have to be docked. According to Mata, about 5 days
later and after Garay had been docked, he met him at the office
and that Garay said that he (Mata), was a rat for ratting him out
to Moskowitz for leaving early. Mata testified that he told
Garay that he was just doing his job.
With respect to the incident described above, the company
records show that Garay was paid for 39.5 hours (instead of the
regular 40), during the week ending August 13, 2004. This is
more consistent with Garay’s timing of these events than
Mata’s and it is more probable that the initial “rat calling” inci-
dent took place in August and not in September or October
2004.
Mata testified that at some later point, he went to the jobsite
and noticed that Mata had installed a galvanized rigid conduit
in an EMT situation. He states that inasmuch as this type of
conduit is extremely expensive, he asked Garay why he had
used it. Mata states that Garay said that there was water leak-
ing down the wall. According to Mata, he told Garay that this
was the building’s problem and that the job was already costing
too much. At this point according to Mata, he told Garay to
forget about it when Garay, in the presence of the customer and
other tradesmen who were at the site said; “Hey everybody,
here’s my rat.” According to Mata, he went back to the office
and told Moskowitz about what had happened and said that
MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP. 583
Garay had publicly humiliated him. Mata states that he told
Moskowitz that he couldn’t tolerate this and that Moskowitz
should find someone else to supervise that job because he
didn’t want to go back. Mata states that Moskowitz told him
that he would talk to Garay.
Moskowitz testified that Mata had reported that Garay had
left the job early and that he told Mata that they would have to
dock Garay for the time. He states that about a week later, he
was in the office when Garay called Mata a rat. Moskowitz
testified that Garay said something like; “You’re a rat. You’re
my rat. Hey how you doing, rat.”
According to Moskowitz, about a week or two later, Mata
told him that he had gone to the jobsite where Garay had an-
nounced to the entire room of workers, “Hello everybody, this
is my rat with me; I’d like to introduce you to my rat.” Mosko-
witz states that when Mata reported this to him, he told Mata
that he would take care of it. He claims that he then asked
Mata to write the incident up and Respondent’s Exhibit 20 is a
document that purports to be the write up dated October 25,
2004, and which sets the second rat incident as having occurred
on October 25, which is 4 days before Garay’s discharge.
The problem with the Respondent’s version of these events
is the time line. The Respondent is asserting that the proximate
cause of Garay’s discharge was the second rat-calling incident
that took place a few days before his discharge. But assuming,
based on company records, that Garay was docked in mid-
August, then the first “rat calling” incident would have taken
place before September. After that, Garay was in Panama and
returned to work on September 22, 2004. According to Garay,
the second “rat calling” incident happened in September, and
according to Moskowitz’ account it took place only a week or
two after the first incident. In fact, General Counsels’ Exhibit
86 shows that in a letter dated December 23, 2004, to the New
York State Department of Labor, Moskowitz stated that Ga-
ray’s last day of employment was on October 29, 2004, and that
the “act was committed two weeks before the termination
date.” In this document, Moskowitz stated that the reason for
Garay’s discharge was “gross insubordination, repeatedly call-
ing a manager a rat and the rat despite numerous warnings to
cease the misconduct.” (Actually there were no warnings.)
Thus, not only is the Respondent’s version of the sequence of
events contradictory, it also shows that the alleged cause of the
discharge took place anywhere from 2 weeks to a month before
the discharge and not within days, as asserted by Moskowitz.
Both sides offered evidence of other employees who have ei-
ther been disciplined or terminated for insubordinate conduct.
For example, Reynold Caton was discharged on May 16, 2003,
for an incident where he screamed at a supervisor, made threat-
ening gestures and refused to listen to orders. Nevertheless, the
evidence shows that this individual had received three or four
prior warnings, one of which was for urinating in a client’s
bathtub. Another example is Ronald Hawson who was dis-
charged on July 20, 2005, for “gross misconduct in the form of
insubordination and threatening behavior to Supervisor Joseph
Estamabil.” This, however, could be considered a more serious
example of insubordination inasmuch as Hawson threatened to
throw Estamabil out of the window.
So what are my conclusions? Did Garay call Mata a rat at
the jobsite and in the presence of other workers? Yes he did.
Could this have been a legitimate reason for discharging him?
Yes it could. Do I believe that Moskowitz decided to discharge
Garay because of this reason? No I do not.
On balance, and given the evidence of knowledge, animus
and Garay’s prior work record, it is my opinion that the General
Counsels have made out a prima facie case that Garay was
discharged because of his activities on behalf of Local 3, IBEW
and that this has not been rebutted by the Respondent as per
Wright Line.
2. The layoff of Jaroslaw Wencewicz
The General Counsels alleges that Wencewicz was illegally
discharged on January 25, 2005. The Respondent claims, how-
ever, that Wencewicz, after being laid off for a few days, re-
fused to return to work and quit. The Respondent makes no
claim that Wencewicz was fired for cause or that he was let go
for economic reasons.
Wencewicz was hired in 1999 and was initially put on the
BTZ payroll. In 2001 he was put on the Matros payroll and
became a member of the incumbent union.
Wencewicz testified that he heard about Local 3 in 2001 and
went to a meeting with representatives of that Union. He states
that in 2001 he solicited other employees to sign authorization
cards for Local 3 and that on one occasion, Mata found them in
his notebook and took them for a few days before returning
them.
Wencewicz was one of the small number of Matros employ-
ees, along with Gonzalez, Garay, and Hodge, who attended a
series of Local 3 meetings held in the spring of 2004. They
were observed at these meetings by Supervisors Estamabil and
Azic.
Wencewicz also testified that he was separately interrogated
about his union sympathies by Mata and Moskowitz about a
week before the May 21 election and that he told Moskowitz
that he intended to vote for Local 3. He also testified that on
the day before the election, Moskowitz tried to dissuade him
from voting for Local 3 and said that even if Local 3 won the
election, he would never sign a contract with that Union.
The last day that Wencewicz worked was on January 21,
2005, and this was almost 7 months after the election. But
from the day of the election until January 21, 2005, the pot was
still being stirred and a number of union related events oc-
curred. Local 3 filed objections to the election and these were
still pending. On November 17, 2004, after a card count, and
despite the continued pendency of the Local 3 election proceed-
ing, Moskowitz recognized and executed a collective-
bargaining agreement with respect to the electrical employees
of Matros.
According to Wencewicz, he was told by Joe Estamabil in
late January 2004, that he should take 2 or 3 days off because
business was slow. Wencewicz states that he objected to this,
stating that he had been sent home for a couple of days in De-
cember and that he thought that under the Local 363 contract,
employees should be laid off by rotation.
Wencewicz testified that when he returned to the worksite on
Wednesday, he called the office and spoke to Estamabil who
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD584
asked, “[W]ho told you to come back to work?” According to
Wencewicz, he replied that Estamabil had told him that he was
going to be out for only 2 or 3 days whereupon Estamabil said:
“No, no, no. We will call you when you’re supposed to come
back to work.”
Wencewicz testified that he went to the office that Friday to
pick up a check and asked Estamabil if he was being fired. He
states that Estamabil put up his hands and said that he didn’t
know anything, that it was not his decision and that the decision
belonged to Moskowitz.
According to Wencewicz, he did not receive a call to return
to work until late March 2005. He therefore assumed that he
was fired. Wencewicz testified that when he finally received a
call, Estamabil stated that he should go back to work and that
he responded that had gotten another job from Local 3.
Moskowitz asserts that it was only a few days after Wence-
wicz was laid off that he told Estamabil to call Wencewicz and
tell him to return to work. Estamabil testified that pursuant to
Moskowitz’ instructions, he called Wencewicz a few days after
the layoff and told him to come back to work. He states that
Wencewicz said, “[L]eave me alone” and hung up the phone.
According to Moskowitz, Estamabil told him about his
phone conversation with Wencewicz about 2 or 3 weeks later.
Moskowitz testified that “I think I tried to call him . . . and
couldn’t get through.” He states that about another 2 weeks
passed before he finally got to talk to Wencewicz and asked
him if he was coming back to work and was told that he had
gotten another job.
General Counsel’s Exhibit 57 is a letter dated March 11,
2004, from Moskowitz to Wencewicz that states:
This letter shall serve as a follow up to our telephone
conversation of last night. In that telephone conversation I
asked you if you were returning to work and you replied
you were not returning to work due to the fact that you are
currently employed at another job. Please be advised that
if you are prepared to return to work at Matros Automated
Electrical Corp. you must return on Wednesday, March
16, 2005 at 8:00 . . . .
. . . .
If you fail to comply with the instructions in this letter
we will view your actions as your resignation of employ-
ment at Matros Automated Electrical Corp.
Once again, it is my opinion that a problem with the Re-
spondent’s story is the time line. The Respondent’s witnesses
testified that only a few days after his layoff on January 21,
2005, Wencewicz was asked to return to work by Estamabil.
But after this alleged first contact, Moskowitz by his own ac-
count, waited up to 3 weeks before making any further attempts
to call Wencewicz and only spoke to him about 5 weeks after
the initial layoff. (According to the letter, on March 10, 2005.)
As noted above, I believe that Moskowitz was not truthful
regarding his claim that he was not aware of Local 3 union
activity in 2004 until he received the election petition. I also
think that Estamabil should not be credited regarding his im-
plausible assertion that although he did see Hodge, Garay,
Wencewicz, and Gonzales at the Local 3 meetings, he did not
share that information with Moskowitz.
Accordingly, crediting Wencewicz over Moskowitz and Es-
tamabil, I conclude that Wencewicz was not asked to come
back to work within a few days after being laid off on January
21, 2005. Rather, I conclude that Wencewicz was falsely led to
believe that his layoff would be for only a couple of days and
that the Company did not offer to recall him until 1–1/2 months
later and only after an unfair labor practice charge had been
filed on February 15, 2005. I therefore conclude that per
Wright Line, the General Counsels have made out a prima facie
case of discrimination and that the Respondent has failed to
rebut it.
3. The discharge of Gilberto Gonzalez
Gonzalez was hired in 1999 and after being on the BTZ pay-
roll was transferred to the Matros payroll in 2002. At times he
was assigned to be a foreman and worked on Moskowitz’
home. This latter piece of evidence presumably was presented
by the General Counsels to show that Moskowitz trusted Gon-
zalez’ work enough to have him do electrical work at his own
home.
Gonzalez attended the Local 3 meetings that were held in the
spring of 2004 and testified that he solicited other employees to
sign union authorization cards. He further testified that about 6
months before the election, Moskowitz asked him if he wanted
to go to Local 3 and that he (Moskowitz) said that didn’t want
to go to Local 3. In other respects, Gonzalez’ version of this
conversation was unintelligible to me.
According to Gonzalez, he and Joseph Hodge resumed solic-
iting new authorization cards for Local 3 in 2005, after Matros
had entered into a contract with Local 363. (That agreement
was made on Nov. 17, 2004.)
Gonzalez claims that sometime in 2004 or 2005, while he
was employed at the Hanover job, he asked Moskowitz why he,
as opposed to other employees, had not received retroactive pay
and that he was told that he wasn’t getting it and that he would
soon be laid off.
Gonzalez was discharged on December 14, 2005, while
briefly working at a BTZ jobsite located at 20 Tiffany Street,
Brooklyn, New York.
Gonzalez was assigned to this jobsite, which was relatively
large construction project in Red Hook. He was assigned to
work with Shay Chickly, an electrician who was on the BTZ
payroll. Everyone agrees that the work was out in the open and
that it was cold outside.
According to Gonzalez, when he arrived at the site, the
workers were on a long break and that after the break was over,
it was already lunchtime. He testified that he was fired at
around 1:45 p.m. by Mark Aminov, the foreman. He states that
he called the office and spoke to Estamabil who confirmed that
he had been fired.
I found Gonzalez’ testimony regarding the circumstances of
his work at this jobsite and his termination to be evasive and
confusing. As far as I can tell, his story is that everyone else
who was on the jobsite was not working and that he was the
only person who was doing his job. I don’t believe him.
MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP. 585
Shay Chicly testified that Gonzalez appeared at the site in
December 2005 and was assigned to work with him. He states
that during the lunchbreak, the men were talking about antici-
pated Christmas bonuses and Gonzalez stated that for his bo-
nus, he hoped that he would be fired. After that, according to
Chicly, he told Gonzalez to pull a cable but at the end of the
day, Gonzalez hadn’t completed the work to which he was
assigned.
On the following day according to Chicly, Gonzalez arrived
about 1-1/2 hours late and by the morning break, still hadn’t
done the work assigned to him. Chicly states that after the
break he told Foreman Mark Aminov that he couldn’t find
Gonzalez and Aminov told him that he would take care of it.
Aminov testified that he went looking for Gonzalez and found
him hiding in a room. He states that when Gonzalez com-
plained about the cold, he told Gonzalez to go downstairs
where there was a heater and then go back to work. According
to Aminov, after the morning break, he again went looking for
Gonzalez and when he found him, Gonzalez expressed his re-
luctance to go back to work and stated that he was cold. Ami-
nov states that he again told Gonzalez that he could warm him-
self downstairs but that he should then return to work. He
states that Gonzalez then said, “Fuck Stuart. I don’t care about
Stuart.”
Aminov testified that after the last incident with Gonzalez,
he called John Mata and asked him to pull Gonzalez off the job.
He states that when Mata asked why, he reported the morning’s
events. Aminov testified that Mata asked for a second, and
then told him to tell Gonzalez to pack his tools. Aminov states
that when he told Gonzalez to leave, Gonzalez thanked him and
said that he could now collect unemployment insurance. Ami-
nov testified that he didn’t understand Gonzalez’ comments and
told him that he didn’t think that he could collect unemploy-
ment. According to Aminov, Gonzalez called Mata and asked
if he was being fired.
Moskowitz testified that he approved Mata’s decision to fire
Gonzalez after being told by Mata that Gonzalez was reported
to be shirking his work and had said, “Fuck Moskowitz.”
In my opinion, the Respondent has shown by credible evi-
dence that it would have discharged Gonzalez notwithstanding
his union or protected activity. I credit the testimony of Chicly
and Aminov to the effect that Gonzalez arrived at the Tiffany
Place jobsite with a chip on his shoulder and with the intention
of avoiding his work. I also credit the testimony of Aminov
that Gonzalez cursed Moskowitz.
Additionally, because I do not think that Gonzalez was a re-
liable witness, I am going to recommend dismissal of the inter-
rogation allegation and the alleged discharge threat to the extent
that they were based solely on his testimony.
4. Roses and raises
You know the expression: “A rose by any other name . . . .”
But sometimes a cliché can be a useful metaphor.
The General Counsels asserts that in December 2004, the
Respondent violated the Act by assigning Gilberto Gonzalez
and Jaroslaw Wencewicz lower classifications than what they
deserved. This took place at about the same time that Matros
recognized and executed a collective-bargaining agreement
with Local 363. The evidence indicates that all of the employ-
ees were assigned formal classifications at this time so that
Local 363 and Moskowitz could fit them into the appropriate
pay categories under the Local 363 contract.
Under the previous contract with Local 174/342 there were
four categories of employees for purposes of minimum hourly
pay rates. These were:
Journeyman $20/hr
Advance Helper 18/hr
Helper 14/hr
Beginner 11/hr
As of the expiration of the old contract, Gonzalez was paid
$20 per hour and Wencewicz was paid $18 per hour. Neverthe-
less, the evidence does not indicate that the Company had pre-
viously used official classifications. It seems that employees
on the Matros payroll worked until they learned aspects of the
craft and then were given wage rates determined by Moskowitz
in accordance with his evaluation of their skill levels. The old
contract also contained a provision that provided that employ-
ees were supposed to attend the Mechanic’s Institute and take
electrician classes. The contract provided that upon the suc-
cessful completion of the courses at various stages, employees
would be promoted from beginner to journeyman. Thus, the
old contract provided an objective method for promotions and
not one based on Moskowitz’ opinion. For better or worse,
neither Gonzalez nor Wencewicz availed themselves of these
courses.
The bottom line is that when the Wencewicz and Gonzalez
received job classifications in late 2004, they did not have their
pay or benefits reduced. Nor is there evidence that any other
aspect of their employment was adversely affected. Whatever
name they were called, there was no adverse action taken vis a
vis their employment. I therefore reject the contention that the
Respondent discriminated against them in this respect and rec-
ommend that this allegation be dismissed.
There is no dispute that after the contract with Local 174/342
expired, Moskowitz decided to give raises and/or retroactive
payments to the employees who were on the Matros payroll.
The first set of raises was given in November 2004 to all em-
ployees except for Hodge, Wencewicz, Gonzalez, and another
employee named Herman Texeira. (Garay did not receive a
raise because he had already been discharged. The employer
noted that another employee named Urgiles also failed to get a
raise, albeit Moskowitz did not testify about him.) Another
round of raises was given in January, March and June 2005.
Everyone got these raises except for Hodge and Gonzalez. (By
Jan. 2005, Garay and Wencewicz were no longer employed.)
Coincidentally, Hodge, Wencewicz, and Gonzalez, were
three of the five or six employees who were spotted by Es-
tamabil and Azic at the Local 3 IBEW meetings. Hodge was
the observer for Local 3 at the election held on May 21, 2004,
and Hodge along with Gonzalez, resumed soliciting authoriza-
tion cards for Local 3, after Matros entered into a contract with
Local 363.
In describing why he did not give the 2004 raises to the indi-
viduals listed above, Moskowitz testified that he didn’t think
that these people were as productive as the other workers who
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD586
got raises. With respect to Wencewicz, Moskowitz also testi-
fied that there were several incidents where he broke objects in
apartments but could only specify one situation where he broke
a light fixture. With respect to Gonzalez, Moskowitz testified
that he was already paying him $21.25 an hour and in light of
his rather poor productivity, he didn’t feel that Gonzalez de-
served a raise. With respect to Hodge, Moskowitz testified that
he was already receiving $25.50 an hour (higher than most of
the other Matros employees), and that he was a very slow
worker. He therefore testified that he didn’t feel that Hodge’s
productivity warranted a raise. As to Herman Texeira, Mosko-
witz testified that he couldn’t recall why he didn’t give him a
raise in 2004 and that he was a good worker. Texeira received
raises in 2005.
Notwithstanding Moskowitz’ assertion that Hodge was an
exceedingly slow worker, he never issued any warning to
Hodge regarding this alleged debility despite the evidence that
shows that in the past, Moskowitz has issued warnings to other
employees for poor productivity. See for example General
Counsel’s Exhibit 83 regarding employee Lindy Baptiste.
It is not my intention to substitute my judgment as to
whether the employees who were denied pay increases de-
served them based on an objective evaluation by me of their
actual productivity during the years in question or for any other
reason. What I am called upon to decide is whether I believe
the reasons given by Moskowitz for his decisions or whether
they were in fact, motivated by union considerations. I have
already concluded that Moskowitz’ testimony regarding several
relevant aspects of this case was less than reliable. Moreover,
as the evidence shows a substantial correlation between those
individuals who actively supported Local 3 and the individuals
who were denied pay increases, it is, in my opinion, more prob-
able that these individuals were denied pay increases because of
their sympathies and/or support for Local 3.6
III. ANALYSIS
Having already found that the Employer has violated the Act
in various respects, I shall not repeat here the facts or my legal
conclusions regarding those allegations.
A. The Members Only Contract Allegation
The complaint alleges that since December 2, 2003, Matros
and Local 174/342 have had a practice of applying contractual
wages and benefits only to those employees who had been se-
lected by the Company to be members of that Union. This is
alleged by the General Counsels to be a violation of Section
8(a)(1) and (3) of the Act.
One could wonder how the General Counsel picked this date,
inasmuch as this practice began and had been going on since at
1997 when BTZ was created as a separate corporation from
Matros. Obviously, the date is 6 months before the date that

6 This is a civil case and therefore it is enough that the General
Counsels prove, through circumstantial evidence and by a preponder-
ance of the evidence (not beyond a reasonable doubt or by a clear and
convincing standard), that the Employer’s agent or agents was moti-
vated by a belief that his employees were engaged in activities in sup-
port of a union or that they were engaged in protected concerted activi-
ties.
the charge in Case 2–CA–36296–1 was filed. But Moskowitz
made no effort to conceal the practice that some of his employ-
ees were getting the wage and benefits of the union contract
and others were not. I imagine that the General Counsels are
claiming that that this is a violation despite the 10(b) statute of
limitations on the theory that although the initial creation of the
“member’s only contract” took place in 1997, the violation is
“continuing” and can survives a challenge from Section 10(b)
of the Act.
I conclude, irrespective of the 10(b) defense, that the Re-
spondent has not violated the Act in this respect.
There is no question but that Matros and BTZ constitute a
single employer within the meaning of the Act. Moreover, had
the incumbent union (Local 174), back in 1997 or even in 1998,
contended by way of an arbitration proceeding or an unfair
labor practice or a unit clarification petition, that the employees
of BTZ should be considered as an “accretion” to the existing
multiemployer bargaining unit to which the Matros employees
belonged, it is probable that they would have been legally cor-
rect. But that didn’t happen.
For whatever reason, Local 174/342 allowed Moskowitz to
operate a “double breasted” shop where the employees of one
were covered by its labor contract and the employees of the
other were allowed to perform electrical work as a nonunion
shop. By December 2003, the bargaining history had, de facto,
created two separate units within a single employer. Land
Equipment, Inc., 248 NLRB 685, 688 (1980).
It seems to me that there is a distinction between whether a
collective-bargaining agreement may discriminate because it is
applied only to members of a union and the situation where the
collective-bargaining agreement is not applied to employees
who are not members of the bargaining unit. The distinction is
between whether a contract is not applied to employees because
of their union membership or whether a contract is not applied
to employees because of their unit membership. If the unit is
unambiguous and those employees who are clearly members of
the bargaining unit are not being paid the contract rates because
of their lack of union membership, then the argument can be
made that the employer is violating Section 8(a)(3). On the
other hand, if certain employees are not being paid the contract
rates, not because of their lack of union membership, but be-
cause the contracting parties have agreed or treated them as not
being part of the collective-bargaining unit, then there is no
8(a)(3) violation.
In the present case, it is clear to me that since at least 1997
and for at least seven more years, Local 174 and its successor,
Local 342, have treated the complement of Moskowitz employ-
ees who have been assigned to work on the BTZ payroll as a
separate unit of employees who were not included in the bar-
gaining unit. This may have been an oversight or it may have
been intentional. But it nevertheless was the case. Therefore,
those employees, to the extent that they did not receive contrac-
tual wages and benefits did not have the contractual benefits
withheld because of their lack of union membership, but be-
cause of their lack of unit inclusion. I therefore, agree with the
Employer’s contentions on this issue and I think that its reli-
ance on Tabernacle Sand & Gravel Corp., 232 NLRB 957
(1977), is apposite.
MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP. 587
B. The Recognition of Local 363 by Matros
Under Board law, an employer may voluntarily grant recog-
nition to a union but it does so “at its peril” if a charge is later
filed within the statutory limitations period and it turns out that
the union did not represent an uncoerced majority of the em-
ployees in the recognized bargaining unit. Ladies Garment
Workers (Berhard-Altman Texas Corp.) v. NLRB, 366 U.S. 731
(1961). Moreover, under Section 8(f) of the Act, an employer
that is engaged primarily in the construction industry may rec-
ognize a union on behalf of construction workers even if the
Union does not represent a majority of the unit employees. In
8(f) situations, however, an employer can legally withdraw
recognition for any reason after the contract expires and the
collective-bargaining agreement cannot act as a contract bar to
a petition filed by another union. John Deklewa & Sons, 282
NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v.
NLRB, 843 F.2d 770 (3d Cir. l988).
The law is equally clear that once notified that a valid repre-
sentation petition has been filed, an employer, except where
there is an incumbent union, must refrain from recognizing any
of the set of rival unions and may not, without violating Section
8(a)(2) of the Act, enter into a collective-bargaining agreement
with either of them. Bruckner Nursing Home, 262 NLRB 955,
957 (1982).7 As pointed out by the General Counsels, a peti-
tion is considered pending while objections remain unresolved
or during a time when the petition is held in abeyance. Wack-
enhut Corp., 287 NLRB 374, 376 (1987), and Haddon House
Food Products, 269 NLRB 338, 341 (1984).
As demonstrated by RCA Del Caribe and Wackenhut, there
is a distinction between situations where there are two rival
unions and the situation where there is a recognized incumbent
union and a rival union that is seeking to displace the incum-
bent through the election process. In Wackenhut, the Board
noted that in Gulf & Western Mfg. Co., 227 NLRB 696 (1977),
an incumbent union had won an election and that while objec-
tions were pending, the employer and the incumbent executed a
new agreement. It was noted that the objections eventually
were overruled and the Board held that although the parties
acted at their peril in negotiating the agreement during the
pendency of the objections, they had accurately anticipated the
disposition of the objections and therefore their actions did not
violate the Act.
In my opinion, the granting of recognition by Matros to Lo-
cal 363 (a nonincumbent union), at a time when an election
proceeding was still pending, constituted a violation of Section
8(a)(1) and (2) of the Act on the part of the Employer and a
violation of Section 8(b)(1)(A) on the part of Local 363. Ac-
cordingly, I need not decide whether Local 363 had obtained
authorization cards from a majority of the employees in an
appropriate unit as this question is irrelevant.
Further, as the collective-bargaining agreements executed
between Matros and Local 363 contained union-security and

7 In RCA Del Caribe, 262 NLRB 963 (1982), the Board held that an
employer may continue to recognize and bargain with an incumbent
union in the face of a valid petition by a rival union. However, in the
event that the rival union wins the election, any contract executed with
the incumbent union would be null and void.
dues-checkoff provisions, this constituted a violation of Section
8(a)(3) of the Act on the part of the Employer and a violation of
Section 8(b)(2) of the Act on the part of Local 363. Finally, as
I have concluded that the Matros/Local 363 contract is illegal
under Section 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2), I
conclude that Local 363 by Shimkus violated Section
8(b)(1)(A) by telling Hodge that he would recommend to the
Employer, that Hodge be discharged if he did not sign a Local
363 membership application.
C. The Recognition of Local 363 by BTZ
The allegations regarding the recognition of Local 363 by
BTZ are a little more complicated.
Although Matros and BTZ constituted a single employer, I
have also concluded that from about 1997, the employees on
the payroll of each corporation have constituted separate bar-
gaining units essentially because of the bargaining history with
Local 174/342.
If I was called upon to decide, as an initial matter and in the
absence of a bargaining history, whether the employees on the
payroll of Matros and the employees on the payroll of BTZ
could constitute separate appropriate units, the answer would be
no. The evidence shows that there was common control, that
there was common supervision and that there was substantial
employee interchange between these two corporate entities. In
many cases, employees who originally were placed on the BTZ
payroll were moved over to the Matros payroll without any
break in employment. The evidence shows that employees on
the BTZ and Matros payrolls worked together as mixed crews
on both rehabilitation and construction jobs in New York City.
BTZ essentially obtained all of its work from Matros, for whom
it worked as an exclusive subcontractor. Moskowitz makes all
the managerial and many of the lesser supervisor decisions with
respect to the employees who are on both payrolls. These in-
clude rates of pay, job classifications, raises, who shall be
hired, who shall be fired and who shall be disciplined. In
short, the evidence establishes that by 2004, and but for the
bargaining history, the employees who were on the BTZ pay-
roll did electrical work in the same category as the employees
on the Matros payroll and were, in effect, substantially inte-
grated into the work functions of the latter group. The Em-
ployer may describe the work of Matros as being more compli-
cated than that of BTZ or that its projects were bigger in scope,
but the evidence shows that by April 1, 2004, the nature of the
work performed by each group was essentially the same and
that the workers of each had overlapping skills.
But the evidence is also clear that by virtue of the actions (or
inactions), of Local 174/342, the employees of BTZ were not
part of the multiemployer bargaining unit that included the
Matros’ electrical workers. This existed up until April 1, 2004,
albeit it was abundantly clear, even before that date that this
was about to change.
Even under Section 8(f), which does not require majority
support, in order for BTZ’ recognition of Local 363 to be legal,
this would require that the employees of BTZ, at the time of
recognition, could exist as a separate appropriate bargaining
unit. And in this respect, I conclude that what had previously
existed as a separate unit, no longer existed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD588
The only way that the employees on the BTZ payroll could
constitute a separate bargaining unit was because of the bar-
gaining history wherein that group was excluded from the lar-
ger, multiemployer bargaining unit. Otherwise, the degree to
which the employees on both the BTZ and Matros employees
were integrated would not allow for separate units except by
virtue of the bargaining history. But by April 1, 2004, the mul-
tiemployer bargaining unit no longer existed and the bargaining
history no longer was relevant. Further, Moskowitz was clearly
aware that the incumbent union, Local 342, was intending to
transfer its representational rights to Local 3 and to assist Local
3 in becoming its replacement. This is shown in the memoran-
dum that Moskowitz delivered to his employees on March 23,
2004. It therefore is obvious to me that Moskowitz was well
aware that Local 342 was going to disclaim any interest in rep-
resenting the Matros employees. And this is, in fact, what did
happen after Local 3 filed its petitions to represent the employ-
ees of the various companies that had previously been members
of the now defunct employer association.
Given the fact that the multiemployer association had been
dissolved no later than April 1, 2004, and the correctly antici-
pated fact that Local 342 was no longer interested in represent-
ing the employees on the Matros payroll, the bargaining history
that had previously separated the Matros employees from the
BTZ employees was no longer in effect and therefore was no
longer relevant or operative.8 I therefore conclude that as of
April 1, 2004, when BTZ recognized Local 363 as the collec-
tive-bargaining representative of the electrical employees on
the BTZ payroll, such a unit no longer could be deemed to be
an appropriate unit; the only appropriate unit being one that
included all of the electrical employees who were on the com-
bined payrolls of Matros and BTZ.9
I therefore conclude that the Respondent violated Section
8(a)(1), (2), and (3) when it recognized Local 363 as the bar-
gaining representative of the employees who were on the BTZ
payroll and entered into collective-bargaining agreements that
contained union-security and dues-checkoff provisions. I also
conclude that Local 363 violated Section 8(b)(1)(A) and (2) by

8 In its brief, Local 363 asserts that an administrative law judge has
no authority to make unit determinations. I don’t where that argument
comes from. Although bargaining unit determinations are normally
made by Regional Directors and the Board in representation cases, it is
not unusual for an administrative law judge to make unit determinations
when required in an unfair labor practice case. For example in Gissell
type cases, where it is alleged that an employer should be ordered to
bargain with a union because its conduct has made a fair election im-
possible, the administrative law judge will often be called upon to
determine the appropriate unit and who belongs in the unit in order to
determine whether the union represented a majority of the employees
within that unit at a relevant point in time. In certain 8(a)(2) cases, a
contention may be made that a company extended an already existing
contract to a new group of employees and the question is whether that
group should be a separate appropriate unit or whether those employees
should be “accreted” to the existing bargaining unit.
9 Since the BTZ payroll had fewer employees than the Matros pay-
roll, Local 363 could not have represented a majority if there was only
one combined unit. On the other hand, Sec. 8(f) allows a company
primarily in the construction industry to recognize a union for construc-
tion workers irrespective of majority status.
accepting recognition in an inappropriate unit and by executing
collective-bargaining agreements containing the aforemen-
tioned clauses.
This conclusion is not affected by the fact that Local 3
IBEW, on April 30, 2004, entered into a Consent Election
Agreement wherein the vote was to be held among the Matros
employees. (The agreement did not, by its terms, either include
or exclude the BTZ employees.) In the circumstances, the
agreement by Local 3 to have a consent election amongst the
employees on the Matros payroll cannot be viewed as being
tantamount to an ex post facto waiver that the people on the
BTZ payroll should exist as a separate unit. At the time of the
agreement, Local 3 representatives, although being aware that
there was some kind of a relationship between BTZ and Ma-
tros, did not have full knowledge of the detailed relationship
between the two corporate entities. Also, they were in the
midst of a group of election petitions involving Matros and
eleven other companies and had to make a choice between
having a quick election and having to go through a litigation on
the issue of whether the employees on the Matros and BTZ
payrolls constituted the only appropriate unit.
Inasmuch the evidence points to the conclusion that the pre-
viously defined multiemployer unit no longer existed, the fact
that Local 342 disclaimed interest in representing the employ-
ees in that unit, and the evidence showing that the only appro-
priate unit would have been a combined unit of Matros/BTZ
employees, I would think that appropriate course for the Re-
gional Director would be to declare the election a nullity and
reopen the representation case to determine what unions should
be on the ballot and what employees should be eligible to vote.
But that is only a suggestion. It is not my role to make findings
in the representation case that is not before me.
D. Other Assistance
The complaint alleges that in April and May 2004, Mosko-
witz illegally assisted Local 363 by orchestrating three meet-
ings during working hours, requiring employees to attend these
meetings and attending the meeting held on May 20, 2004.
The record indicates that it was employee DeVaynes who
was most instrumental in supporting Local 363 and who was
the one who arranged for the meetings with Local 363 repre-
sentatives. I cannot state, based on this record that his actions
were taken either pursuant to the direction of Moskowitz. At
most, it appears that DeVaynes, through Supervisor Joe Es-
tamabil, set up meetings on an unoccupied floor in the building
in which the Company rents space and that he held and con-
ducted another meetings at a jobsite. (That is, the meetings
were not held on company property.) In each instance, the
evidence shows that employees were told of these meetings by
communication with the office receptionist and that they went
to the meetings during worktime for which they were paid. The
meetings held at 29th Street were essentially conducted by
Local 363 representatives, although there was evidence that at
least some supervisors, who kept quiet, were present at the first
two meetings. At the last meeting, held on May 20, 2004,
Moskowitz spoke and I have already concluded that his re-
marks violated Section 8(a)(1) of the Act.
MATROS AUTOMATED ELECTRICAL CONSTRUCTION CORP. 589
In a situation where there are rival unions, neither of which
is an incumbent, an employer, once a representation petition
has been filed, is obligated to maintain neutrality in the sense
that it cannot recognize one of the competing unions. Bruckner
Nursing Home, supra. But this does not mean that the employer
cannot express his opinion as to which union he would prefer
so long as this is done in a noncoercive manner. Tecumseh
Corrugated Box Co., 333 NLRB 1 (2001); Alley Construction
Co., 210 NLRB 999 (1974); Plymouth Shoe Co., 182 NLRB 1
(1970). Nor can it be said that an employer violates the Act
merely because it allows union representatives to meet its em-
ployees on company premises and company time. Tecumseh
Corrugated Box Co., supra; Coamo Knitting Mills, Inc., 150
NLRB 579 (1964).
In my opinion, the assistance given here to Local 363 went
beyond what was permissible under the Act. I have already
concluded that in addition to helping arrange for the employees
to meet with Local 363 representatives and paying for their
time, supervisors attended and remained at a couple of these
meetings even though they did not talk. More significantly, the
evidence shows that Moskowitz, at the May 20 meeting, did
more than merely express his views opposing Local 3 and fa-
voring Local 363. He told the employees that if Local 3 won
the election, he would never sign a contract and that he would
rather close the business and move to Miami.
CONCLUSIONS OF LAW
1. By recognizing and entering into successive collective-
bargaining agreements with Local 363, such contracts contain-
ing union-security and dues-checkoff clauses, the Respondent
Matros/BTZ has violated Section 8(a)(1), (2), and (3) of the
Act.
2. By interrogating employees about their sympathies or ac-
tivities on behalf of Local 3, IBEW, the Respondent has vio-
lated Section 8(a)(1) of the Act.
3. By promising employees promotions and other benefits in
order to dissuade them from voting for Local 3, IBEW, the
Respondent has violated Section 8(a)(1) of the Act.
4. By threatening employees that it would shut down the
business, the Respondent has violated Section 8(a)(1) of the
Act.
5. By telling employees that even if Local 3, IBEW won the
election, it would never sign a contact with that labor organiza-
tion, the Respondent has violated Section 8(a)(1) of the Act.
6. By discharging Aparicio Garay because of his activities
and support for Local 3, IBEW, the Respondent has violated
Section 8(a)(1) and (3) of the Act.
7. By failing to recall from a temporary layoff and therefore
discharging Jaroslaw Wencewicz because of his activities and
support for Local 3, IBEW, the Respondent has violated Sec-
tion 8(a)(1) of the Act.
8. By failing to give raises to Hodge, Wencewicz, and Gon-
zalez because of their activities and support for Local 3, IBEW,
the Respondent has violated Section 8(a)(1) of the Act.
9. By giving assistance to Local 363, the Respondent has
violated Section 8(a)(1) and (2) of the Act.
10. By accepting recognition from Matros/BTZ as the repre-
sentative of its employees and by entering into collective-
bargaining agreements containing union-security and dues-
checkoff clauses, the Respondent, Local 363, has violated Sec-
tion 8(b)(1)(A) and (2) of the Act.
11. By threatening to cause the discharge of an employee if
he refused to sign a Local 363 membership application, the
Respondent, Local 363, has violated Section 8(b)(1)(A) of the
Act.
12. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
13. The Respondents have not violated the Act in any other
manner encompassed by the complaint.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
It is recommended that the employer be ordered to withdraw
and withhold recognition from Local 363 for the employees on
the Matros and BTZ payrolls and to cease and desist from giv-
ing force or effect to any collective-bargaining agreements
covering those employees, unless and until that Union is certi-
fied by the Board as the collective-bargaining representative of
the employees at that location. However, nothing herein shall
be construed to require the employer to vary any wage or other
substantive terms or condition of employment that has been
established in the performance of the contract.
It is further recommended that Local 363 be ordered to cease
and desist from acting as the bargaining representative of the
aforesaid employees or giving effect to its contracts with the
employer unless and until it is certified by the Board as the
collective-bargaining representative of the employees at that
location.
It is additionally recommended that the employer and Local
363 be ordered, jointly and severally, to reimburse all present
and former employees who joined Local 363 for all initiation
fees, dues, and other moneys which may have been exacted
from them together with interest thereon as set forth in Florida
Steel Corp., 231 NLRB 651 (1977).
As I have concluded that the Respondent illegally discharged
Aparicio Garay and Jaroslaw Wencewicz, it must offer them
reinstatement to their former positions of employment or if
those positions are no longer available, to substantially equiva-
lent positions of employment and make them whole for any
loss of earnings and other benefits, computed on a quarterly
basis from the date of such refusal less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]