McClain & Co., Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2012

358 N.L.R.B. 1070 (N.L.R.B. 2012)

1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 118
McClain & Co., Inc. and Craig H. Livingston. Case
22–CA–029792
August 31, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND BLOCK
On October 17, 2011, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Act-
ing General Counsel filed an answering brief, and the
Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below and to adopt the recommended Order.
1. We agree with the judge that the Respondent violat-
ed Section 8(a)(1) of the Act on July 21 and August 30,
2010,2 by threatening employees with loss of work for
engaging in protected concerted activity. These threats
were contained in emails sent by Project Manager Joe
Ferrer to the Respondent’s employees. Both emails indi-
cated that if employees complained about work-
scheduling assignments, they would be taken off the
schedule—i.e., they would not work. The record estab-
lishes that Ferrer’s emails referred to the employees’
ongoing, concerted protest of the Respondent’s schedul-
ing practices. Specifically, a group of senior employees
perceived that they were being scheduled for fewer shifts
than newer employees. As the judge found, the senior
employees frequently discussed their concerns about this
perceived favoritism with each other, and they repeatedly
complained about the situation to various management
officials. These facts alone are sufficient to establish the
protected, concerted nature of the employees’ com-
plaints. See Salisbury Hotel, 283 NLRB 685, 686–687
(1987) (finding concerted activity where employees
complained among themselves about new lunch policy
and most took complaint to management, despite absence
of explicit agreement to act together).3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 All dates hereafter are in 2010.
3 Employee Frank Bruno testified that he heard employees complain-
ing to Supervisor Al Ladd about their shift assignments. Employee
Ivan Casiano similarly testified that he heard employee David DeCarlo,
The concerted nature of the senior employees’ com-
plaints about their shift assignments is further confirmed
by employee Danny Brattoli’s telephone call to Dan
McClain, the Respondent’s owner. Prior to the call,
Brattoli told other employees that he planned to raise the
issue of scheduling assignments with McClain. During
the call, he told McClain that other employees shared his
concerns about scheduling assignments. And, after the
call, Brattoli reported McClain’s promise to investigate
the issue to the other employees. Although Brattoli told
McClain that he was only calling for himself, this fact
does not undermine the conclusion that he was neverthe-
less bringing a “truly group complaint” to McClain’s
attention. Meyers Industries, 281 NLRB at 887. In addi-
tion, given Brattoli’s express reference to other employ-
ees sharing his concern, McClain knew or had reason to
know as much. See Approved Electric Corp., 356 NLRB
238, 239 (2010) (employee’s statement to supervisor that
“the guys” were upset about not being paid was suffi-
cient to show that employer knew or had reason to know
that employee’s complaints were concerted). As the em-
ployees’ complaints about scheduling assignments con-
stituted protected concerted activity, and as Ferrer’s
emails threatened employees that they would lose work if
they continued to engage in this protected activity, the
emails violated Section 8(a)(1).
Moreover, Ferrer’s emails violated Section 8(a)(1) re-
gardless of whether the employees had already engaged
in protected concerted activity. The Board has held that
an employer violates the Act by seeking to prevent future
protected activity. See, e.g., Parexel International, LLC,
356 NLRB 516, 519 (2011), and cases cited therein.
Specifically, the Board has found that an employer vio-
lates Section 8(a)(1) by threatening employees with ad-
verse action if they engage in protected concerted activi-
ty. See SKD Jonesville Division L.P., 340 NLRB 101,
103 (2003); Keller Ford., 336 NLRB 722, 722 (2001),
enfd. 69 Fed. Appx. 672 (6th Cir. 2003); and Monarch

in the presence of several other employees, protest to Ladd that new
hires were receiving an “unfair advantage” in shift assignments. Based
on Bruno’s and Casiano’s testimony, the judge found that the employ-
ees raised the shift assignment issue to management “as a group.”
However, as argued by the Respondent on exceptions, neither employ-
ee testified that the employees complained as a group. Accordingly, we
do not rely on the judge’s “group” presentation findings in concluding
that the employees were engaged in protected concerted activity. In-
stead, the senior employees’ discussions among themselves about the
assignment issues and their presentation of these issues to management,
even if on an individual basis, are sufficient to establish the concerted
nature of their activity. See Salisbury Hotel, supra; see also Mike Yuro-
sek & Son, Inc., 306 NLRB 1037, 1038–1039 (1992), enfd. 53 F.3d 261
(9th Cir. 1995); and Meyers Industries, 281 NLRB 882, 887 (1986),
affd. 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988).
MCCLAIN & CO.

1071
Water Systems, 271 NLRB 558, 558 (1984). Consistent
with this precedent, whether or not the senior employees
had actually concertedly complained to management
about scheduling assignments, Ferrer’s emails threaten-
ing loss of work if they concertedly complained in the
future violated Section 8(a)(1), as the emails would tend
to chill the employees’ exercise of their Section 7 right to
discuss and protest scheduling assignments.4
2. We also agree with the judge’s application of
Wright Line5 to determine that the Respondent violated
Section 8(a)(3) and (1) by laying off traffic control tech-
nicians Frank Bruno, Danny Brattoli, and Ivan Casiano
on August 25 (Bruno) and August 26 (Brattoli and
Casiano).6 Under Wright Line, the General Counsel
bears the initial burden to show that the employees’ un-
ion activity was a motivating factor in the Respondent’s
selection of them for layoff.7 See Bruce Packing Co.,
357 NLRB 1084, 1086 (2011). The General Counsel
satisfies this initial burden by showing that the alleged
discriminatees engaged in union activity, the Respondent
had knowledge of the activity, and the Respondent bore
animus toward the activity. See, e.g., Fremont Medical
Center, 357 NLRB 1899, 1902 (2011). The burden then
shifts to the Respondent to demonstrate that the same
adverse action would have occurred even in the absence
of the union activity. See Wright Line, supra at 1089.
Here, there is no dispute that Brattoli and Casiano en-
gaged in union activity by attending a meeting with offi-
cials from Teamsters Local 210 (the Union) on August
25. The Respondent’s knowledge of that activity is
shown by Yard Manager Al Ladd’s September 7 com-
ment to Bruno that he knew that “you guys” attended the
union meeting and that “everything got back to Virgin-
ia,” i.e., to the Respondent’s main office, and by associa-
tion, to Owner McClain. The Respondent admits that
Ladd, in consultation with Ferrer, selected employees for
layoff. The Respondent’s knowledge of the employees’
union activity can additionally be inferred from the sus-
picious timing of the layoffs and, as explained below, the
pretextual reasons given for them. See Montgomery
Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. mem.
97 F.3d 1448 (4th Cir. 1996).
The record also contains ample evidence of antiunion
animus. In this case, four of the five employees who

4 Member Hayes finds it unnecessary to rely on this additional basis
in finding that Ferrer’s emails violated the Act.
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
6 The Respondent has not excepted to the judge’s conclusion that it
violated Sec. 8(a)(3) and (1) by laying off Bruno.
7 The judge inadvertently mischaracterized Wright Line as a “but-
for” test.
attended the union meeting were laid off within a day of
the meeting. The timing of the layoffs, under these cir-
cumstances, is strong evidence of antiunion animus. See,
e.g., McClendon Electrical Services, 340 NLRB 613, 613
(2003) (discharge the day after participating in lawful
picketing supports a finding of unlawful motive). Fur-
ther, the purported reason for the layoffs—a lack of
work—is belied by the Respondent’s hiring of new traf-
fic control technicians in the succeeding weeks. As
such, the reason is pretextual and, thereby, constitutes
evidence of animus. Evidence of animus is further
shown by (1) Ladd’s comment to employee David
DeCarlo that if the employees formed a union, the Re-
spondent would probably close the Lyndhurst location;
and (2) the Respondent’s deviations from its handbook
procedures in making the layoffs.8 Based on the forego-
ing evidence, we agree with the judge that the Acting
General Counsel met his initial Wright Line burden.
Turning to the Respondent’s rebuttal burden, the rec-
ord does not support the Respondent’s claim that the
layoffs were occasioned by a lack of work.9 In addition
to the Respondent’s hire of new traffic control techni-
cians within weeks of the layoffs,10 it engaged in no fur-
ther layoffs due to a lack of work until November and
December. As this proffered reason for the layoffs is
pretextual, the Respondent by definition cannot meet its
burden under Wright Line. See Limestone Apparel
Corp., 255 NLRB 722, 722 (1981), enfd. 705 F.2d 799
(6th Cir. 1982). Accordingly, we agree with the judge
that the Respondent violated Section 8(a)(3) by laying
off employees Bruno, Brattoli, and Casiano.
3. We also adopt the judge’s determinations that the
Respondent violated Section 8(a)(1) by interrogating
Bruno and by creating the impression that the employ-
ees’ union activities were under surveillance. On Sep-
tember 7, Bruno approached Ladd in the equipment yard
to protest his layoff. Ladd informed Bruno that “Virgin-
ia” (i.e., the Respondent’s main office) was responsible
for the layoff decision. Bruno continued his protest, cit-
ing his good work history with the Respondent. Ladd

8 The Respondent’s employee handbook lists a number of factors to
be considered in selecting employees for layoff. Regional Manager
Matt Pasquale admitted he did not consider these factors, and Ferrer, in
his testimony, mentioned only three factors he considered and did not
explain how he applied them in selecting the employees for layoff.
9 The Respondent claims certain other reasons for selecting Brattoli
and Casiano for layoff, but in both cases the underlying reason for the
layoff was the supposed lack of work. In any event, as the judge thor-
oughly explained, the other considerations the Respondent cites do not
establish that it would have laid off Brattoli and Casiano in the absence
of their attendance at the union meeting.
10 The Respondent attempts to explain this circumstance in its brief,
but in doing so identifies no record evidence that supports its explana-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1072
responded that the “union meeting you guys went to . . .
sure [ ] didn’t help it.” He then asked Bruno, “There’s
another one [union meeting] on the eighth, right? To-
morrow?” Bruno replied, “I don’t know nothing. I don’t
know what you’re talking about.” When Bruno then
sought to clarify whether the “supposed[] union meeting”
was the reason he was laid off, Ladd replied, “Everything
got back to Virginia.”
On September 13, Bruno visited the office of Regional
Manager Matthew Pasquale to ask why he had been laid
off. Bruno told Pasquale that Ladd said Bruno had been
laid off for attending “some kind of union meeting.”
Pasquale responded by asking, “Did you go to a union
meeting?” When Bruno replied that “[i]t wasn’t a union
meeting,” Pasquale asked, “What was it?” Bruno stated
that it “was a bunch of guys talking” and that Ladd was
“telling me that that’s the reason why [Bruno was laid
off].” Pasquale responded, “That could play into it.” He
then told Bruno that if Bruno was “so jacked on the un-
ion, go join the union.” Pasquale reiterated, when Bruno
asked whether going to a union meeting was the reason
he was no longer working, that it “[m]ight be part of it.”
Later in the conversation, Bruno repeated that the meet-
ing wasn’t a union meeting, and Pasquale responded by
asking Bruno whether it “[w]as a union guy” who con-
ducted the meeting.
In determining whether an interrogation is coercive in
violation of Section 8(a)(1), the Board applies the totali-
ty-of-circumstances test set forth in Rossmore House,11
which examines the following factors: (1) the back-
ground, i.e., whether the employer was hostile toward or
discriminated against union activity; (2) the nature of the
information sought, e.g., did the interrogator appear to be
seeking information on which to base taking action
against the employee; (3) the identity of the questioner,
i.e., how high was the interrogator in the employer’s hi-
erarchy; (4) the place and method of the interrogation,
e.g., was the employee summoned to the boss’ office; (5)
the truthfulness of the employee’s reply, e.g., did the
employee attempt to conceal his or her union activity;
and (6) whether the interrogated employee was an open
and active union supporter. See Camaco Lorain Mfg.
Plant, 356 NLRB 1182 (2011), and cases cited therein.
Taken as a whole, these factors support the judge’s find-
ings that Ladd’s and Pasquale’s questions were unlawful-
ly coercive.12

11 Rossmore House, 269 NLRB 1176, 1178 (1984), enfd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
12 “It is not essential that every Rossmore factor be established to
find an 8(a)(1) interrogation.” Stevens Creek Chrysler Jeep Dodge, 353
NLRB 1294, 1295 fn. 9 (2009), affd. and incorporated by reference 357
First, the questioning by both Ladd and Pasquale oc-
curred against a background of contemporaneous unlaw-
ful activity directed at Bruno—his layoff for attending
the August 25 union meeting. Indeed, both officials told
Bruno during their respective meetings that his union
activity was a reason for his layoff. Interrogations ac-
companied by contemporaneous unfair labor practices
strongly support a finding that questioning was unlawful-
ly coercive. See Seton Co., 332 NLRB 979, 982 (2000).
Second, the nature of the information sought by Ladd
and Pasquale indicates the unlawfulness of their inquir-
ies. Ladd, having told Bruno that going to the August 25
union meeting “didn’t help” his employment situation,
asked him whether another union meeting was scheduled
the next day. Pasquale asked Bruno if he had attended
the August 25 meeting and whether a “union guy” con-
ducted it. Both interrogations sought to confirm for the
Respondent the unlawful basis for its layoff of Bruno.
Cf. Stevens Creek, 353 NLRB at 1295 (unlawful purpose
of interrogations was to determine who to discharge for
attending union meeting). Next, Bruno responded un-
truthfully to Ladd’s and Pasquale’s questions. He told
Ladd that “I don’t know nothing” when asked if another
union meeting was being held the next day and told
Pasquale that it was not a union meeting that he attended
but, instead, was just a “bunch of guys talking.” See
Camaco Lorain, 356 NLRB at 1183 (untruthful response
to interrogation in effort to conceal union activity evinces
coercive nature of questioning). Finally, Bruno was not
an open union supporter. See id.; and La Gloria Oil &
Gas Co., 337 NLRB 1120, 1123 (2002) (questioning
employees not known to be open union supporters about
union activity found coercive), affd. 71 Fed. Appx. 441
(5th Cir. 2003).13 For all these reasons, we affirm the
judge’s finding that the Respondent violated Section
8(a)(1) by interrogating Bruno on September 7 (by Ladd)
and September 13 (by Pasquale).
We further find, in agreement with the judge, that
Ladd’s September 7 comments to Bruno unlawfully cre-
ated an impression that the employees’ union activity
was under surveillance. The Board’s test for determining
whether an employer has created an unlawful impression
of surveillance is “whether, under all of the relevant cir-
cumstances, reasonable employees would assume from
the statement in question that their union or protected
activities had been placed under surveillance.” Frontier
Telephone of Rochester, Inc., 344 NLRB 1270, 1276

NLRB 633 (2011); see, e.g., Demco New York Corp., 337 NLRB 850,
851–852 (2002).
13 Bruno’s attendance at the union meeting on August 25 does not
constitute evidence that he was an open and active union supporter.
MCCLAIN & CO.

1073
(2005), enfd. mem. 181 Fed. Appx. 85 (2d Cir. 2006);
accord: Camaco Lorain, supra, 356 NLRB at 1183.
As the Board explained in Stevens Creek, supra, when
an employer tells employees that it is aware of their un-
ion activities, but fails to tell them the source of that in-
formation, it violates Section 8(a)(1) “because employees
are left to speculate as to how the employer obtained the
information, causing them reasonably to conclude that
the information was obtained through employer monitor-
ing.” 353 NLRB at 1296 (emphasis in original). Failure
to identify the source of the employer’s information
about union activity is the “gravamen” of an impression-
of-surveillance violation. North Hills Office Services,
346 NLRB 1099, 1103 (2006). Here, Ladd informed
Bruno that he was aware of the August 25 union meeting
and a second union meeting scheduled for the next day.
Ladd did not identify another employee as the voluntary
source of this information or indicate that he learned of
the meetings through lawful means. Nor is there evi-
dence that the August 25 meeting was an open or publi-
cized event. Although Bruno and other employees who
attended the August 25 meeting discussed it with em-
ployees who did not attend, Bruno did not mention the
meetings to management, nor was he aware that other
employees had done so. Thus, unlike in Frontier Tele-
phone, supra, Bruno had no basis to assume that Ladd
knew through lawful means of the union activity. In-
stead, Bruno was left to speculate, and reasonably con-
clude, that Ladd obtained his information through unlaw-
ful employer monitoring. Moreover, Ladd’s comment
that “[e]verything got back to Virginia” reasonably sug-
gested to Bruno that the Respondent was closely moni-
toring the degree and extent of the employees’ union
activities at the highest corporate level. See Flexsteel
Industries, 311 NLRB 257, 258 (1993); and United
Charter Service, 306 NLRB 150, 151 (1992). In these
circumstances, we agree with the judge that the Re-
spondent violated Section 8(a)(1).14

14 Contrary to his colleagues, Member Hayes would not find that
Ladd’s comments created an impression of surveillance. Ladd told
Bruno that he (Ladd) had heard about the meeting from other people.
Within a day of the union meeting, Bruno informed three employees
who had not attended the meeting what had happened there. The day
after the meeting, Bruno received a call from his cousin, a fellow em-
ployee, who had not been invited to the meeting but was nevertheless
aware of it. Moreover, Brattoli indicated that word of the meeting
spread so rapidly that “everyone”—including management—knew
about it (including the identity of the attendees) by the next morning.
Finally, the leader of the meeting encouraged attendees to tell other
employees about the meeting and about plans for a second meeting.
Thus, the meeting had been a topic of open discussion 10 days before
Ladd made his statement to Bruno. Under these circumstances, Bruno
would not reasonably assume from Ladd’s statements that the employ-
ees’ union activities had been placed under surveillance. See, e.g.,
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, McClain & Co., Inc., Lynd-
hurst, New Jersey, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Bernard S. Mintz, Esq., for the General Counsel.
Douglas S. Zucker, Esq. and Kathryn Van Deusen Hatfield,
Esq. (Bauch, Zucker, Hatfield LLC), of Springfield, New
Jersey, for the Respondent.
Craig H. Livingston, Esq. (Livingston, Siegel, DiMarzio, LLP),
of Nutley, New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was heard on May 24 and June 2, 2011, in Newark, New
Jersey, and New York, New York. The complaint alleges that
Respondent, in violation of Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act (the Act), threatened its employees
with loss of work if they complained concertedly, created the
impression that its employees’ protected activities were under
surveillance, interrogated employees about their union activi-
ties, and discharged its employees Frank Bruno, Ivan Casiano,
and Daniel Brattoli. Respondent denies that it has engaged in
any violations of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent on July 29, 2011, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness in Lyndhurst, New Jersey, is engaged in the rental of un-
der-bridge access and aerial equipment, and the provision of
traffic control services. Respondent annually purchases and
receives at its facility goods and services valued in excess of
$50,000 directly from suppliers located outside the State of
New Jersey. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that Teamsters Local 210, In-
ternational Brotherhood of Teamsters is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR PRACTICES
A. Background
McClain & Co. establishes traffic patterns for work zones on
highways and bridges so that inspections and work on bridges
and signs may take place without injury to either the workers or
the driving public. Respondent is a subcontractor to the engi-

North Hills Office Services, 346 NLRB at 1103–1104. Ladd’s remark
that “everything got back to Virginia” merely indicated that this gener-
ally known information was conveyed to management, not that man-
agement had acquired the information through surveillance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1074
neering firms that are hired to perform the actual inspections
and work. The contracts between McClain and the engineering
firms specify the equipment to be used and the traffic control
duties of the Company. These contracts generally have a 2-
year term; for each specific traffic control job, Respondent may
get from 1 week to a few days’ notice. There are frequent can-
cellations due to weather and other factors. Respondent also
performs noncontract work for engineering firms.
The headquarters of McClain is in Virginia.
In Lyndhurst, New Jersey, McClain maintains an office and
a yard for storing and maintaining equipment. These locations
are not contiguous. The Company also has a terminal in Dan-
bury, Connecticut.
The following individuals are admitted to be supervisors and
agents of Respondent within the meaning of Section 2(11) and
(13) of the Act:

Matthew Pasquale Regional Manager
Joseph Ferrer Project Manager
Alan Ladd Equipment & Yard Supervisor

Certain of Respondent’s employees hold a traffic control
technician (TCT) certification. To be certified as a TCT a per-
son must be trained in setting up traffic patterns and performing
safe traffic control.
Each crew sent out to perform a job has a team leader. An
employee who is chosen to be team leader on one job would
not necessarily be the team leader for the next job to which he
was assigned. The team leader is in charge of the crew. He is
responsible for informing his crew of the time to report to the
yard for the job and he must get the trucks equipped and ready
to leave. The team leader has no input as to how a job is
staffed.
On May 9, 2011, Respondent entered into a Consent Agree-
ment with the Regional Director for Region 22 of the National
Labor Relations Board (the Board). The Consent Agreement,
approved and so ordered by the United States District Court,
required Respondent to offer Frank Bruno, Daniel Brattoli, and
Ivan Casiano opportunities to return to work pending final dis-
position of the instant case by the Board.
The company handbook sets forth procedures to be followed
in a layoff:

When a reduction in force is necessary or if one or more posi-
tions are eliminated, employees will be identified for layoff
after evaluating the following factors:

1. Company work requirements;

2. Employee’s abilities, experience, and skill;

3. Employee’s potential for reassignment within the organi-
zation; and

4. Length of service.
B. Testimony of Employees
Frank Bruno
Frank Bruno worked for McClain & Co. from December
2007, until August 25, 2010. Bruno was certified as a TCT.
On his last day of work, Bruno had the greatest seniority of any
TCT employed in Lyndhurst. Bruno holds a commercial driv-
er’s license (CDL); he is trained to operate an under bridge
inspection truck (UB truck), and he is trained to operate high
rail equipment to check bridges that span railroad tracks. Bru-
no usually works from the Lyndhurst terminal. He has also
worked from the Danbury terminal and in Maryland. He has
worked in various New York State regions including the bor-
oughs of New York City, Nassau, Suffolk, Westchester, and
Putnam Counties and in the areas around Utica and Bing-
hamton, New York.
Bruno testified that for each job to be performed by the
Company Project Manager Ferrer would send an email to the
team leader for that job specifying a list of equipment and nam-
ing the employees assigned to the job. The team leader had the
responsibility to call his crewmembers to tell them what time
they should be in the yard before leaving for the job. All em-
ployees report to the yard before going out to work and they
return to the yard after work every day.
Around February or March 2010, McClain appointed new
management in Lyndhurst. Ladd became the yard manager and
Pasquale took over as regional manager. Bruno testified that
conditions improved at this time: payments for prevailing wage
rate jobs were now made according to legal requirements and
hours of work were adjusted to conform to Department of
Transportation (DOT) regulations.1 Bruno testified that condi-
tions deteriorated when Ferrer became project manager in June
2010. Bruno said that favoritism became a factor in job as-
signments. New employees were hired and senior employees
noticed that their hours or work decreased. Bruno said he had
been working five shifts a week but after Ferrer came on the
job he was working only three or four shifts per week.
The new management team held a meeting with employees
in July 2010 to announce new rules about writeups. Ladd, Fer-
rer, and Pasquale attended the meeting in the yard. Bruno testi-
fied that Ladd told the employees that as of that day the slate
would be wiped clean of prior writeups; whatever happened in
the past was in the past and they would start fresh from that
day. As of the day of the meeting, Ladd explained, three
writeups would equal a termination. Ladd also told the em-
ployees that the team leader on a job must arrive at the yard 30
minutes prior to the time set forth in the email which assigned
the job, and laborers must report 15 minutes before the set time.
At the meeting, Ladd distributed a notice reiterating some of
the points made in his remarks to employees. The notice addi-
tionally urged employees to perform pretrip and posttrip in-
spections, instructed employees to top off the fuel on the way
back to the yard, and told employees not to leave garbage or
traffic cones in their equipment at the end of the day.
Bruno testified that senior employees discussed their con-
cerns about favoritism and decreased hours among themselves.
Then, Bruno and others complained to Ladd in the yard.2 Em-
ployees also brought their complaints to Ferrer, but Ferrer was
hard to contact because he was in the office. Eventually, Ladd
expressed annoyance about the employees’ complaints; Ladd

1 At some point a DOT inspection had taken place and it was found
that employees were working double or triple shifts, thereby violating
restrictions on consecutive hours worked.
2 Bruno witnessed other employees voicing their complaints to Ladd.
MCCLAIN & CO.

1075
did not prepare the employees’ schedules and he told them to
speak to Ferrer.
On July 21, 2010, Ferrer sent an email to all employees. The
note stated, in relevant part:

I have been getting numerous complaints from Al [Ladd] that
some, NOT ALL of you are complaining to him about your
shifts and who’s doing what and getting what. I’m not going
into the topic of how you should mind your own business and
stuff like that. All I have to say is some of you aggravate him
and then he aggravates me, so easiest way to remedy this is
. . . . 1. you aggravate him. 2. He aggravates me. 3. I take you
off schedule. Simple as that. He has nothing to do with the
schedule so leave him out of it. You have a question, ask me.
If I don’t answer, keep trying. For those who analyze the
schedule and notice an error by all means let me know via
email or text and I will correct it, but don’t call me about this
guy doing this and that guy doing that, I need this, and I need
that. I will not cater to your needs, so don’t ask me to. And
as always, please feel free to contact your Regional Manager
if you are not cool with what’s going on . . . . Have a nice
day. (No changes have been made to the original as written
by Ferrer.)

Also in July 2010 Bruno was told by coworker Daniel Brat-
toli that Brattoli had called the company headquarter in
McClain, Virginia, and had left a message on Owner Daniel
McClain’s voice mail about the employees’ complaints. A few
weeks later, Bruno also left a message on Daniel McClain’s
voice mail. McClain did not return Bruno’s call.
On August 30, 2010, Ferrer sent another email to employees.
The note stated in relevant part:

Hi everyone, just want to let everyone in on some changes
made as of late. Al [Ladd] no longer gets a copy of the
schedule. . . . This is coming from Va. Apparently, a call
may have been made down there and some complaints were
made about certain things that will not be mentioned so please
don’t ask. Also effective today, no one is allowed to come up
to the office. If you have a payroll issue, please either call or
email Chrystal with your concerns. If it’s a question directed
towards me, either call, e mail or wait at the yard. If anyone
comes unannounced to the office, they will be taken off the
schedule. Sorry it has to come to this guys, but it’s out of my
hands and I have to follow the rules given to me. . . .

On August 13, 2010, Bruno had an accident with an arrow
board.3 Bruno filed an accident report which stated: “I was
going back to the yard from the back road when I heard a pop.
I turned—the truck pulled to the right. I turned the truck and
hit the curb with the arrow board. The wheel must have hit the
curb and bounced up and flipped the [arrow board] on its side.
[The] side of arrow board has damage on the left front corner,
trailer not damaged.” Bruno included a diagram in his accident
report: the diagram showed damage in the upper left corner of
the arrow board. Bruno said that his vehicle had a blown tire.
Bruno testified that the accident occurred when he took a drink

3 An arrow board consists of a trailer with a lighted arrow sign to di-
rect traffic in a certain direction.
of water and began to choke. He came too close to the curb and
heard a pop when the tire hit the curb. The arrow board flipped
over when he pulled the truck away from the curb. Bruno said
he was going 25 miles per hour when the accident occurred.
He denied that there was extensive monetary damage to the
arrow board.
Bruno called Ladd who dispatched an employee with a spare
tire. Bruno spoke to Ladd in the yard and offered to come in on
his own time to fix the arrow board. Bruno testified that he
asked Ladd whether he would he would be written up for the
damaged arrow board and Ladd replied, “Don’t worry about it.”
Bruno has had experience repairing arrow boards. He testified
that it would take 1 or 2 hours to repair the damaged board.
One would straighten the metal and put in some screws or riv-
ets. Bruno testified that arrow boards are damaged all the time
and that flat tires are common at the company. Bruno recalled
that in 2010 employee Charles DeCarlo rolled an arrow board
due to excessive speed; DeCarlo was not discharged.
When Bruno reported for his next shift after August 13 he
found a writeup on the bulletin board.4 The document was
signed by Project Manager Ferrer. Although the document has
blocks to indicate whether it was the first, second, or final
warning, none of the blocks was checked on this sheet. Instead,
lower down on the warning sheet, two blocks were checked
indicating “substandard work” and “other offenses: willful
disregard for equipment.” A description of the infraction was
included: “negligent driving and unsafe movement, extensive
monetary damage.” The consequence of further infractions was
stated: “Another infraction will result in termination.”
Bruno asked Ladd why he had been written up and Ladd re-
plied that Ferrer had done it.
Bruno worked steadily from the date of the accident until
August 25, 2010.
At 7:30 p.m. on August 25, Bruno attended an informal
meeting in the Meadowlands Diner with a representative of
Teamsters Local 210 and two employees from a company
called Highway Technologies.5 Bruno was invited to the meet-
ing by McClain employee Mike Alvarez. Other McClain em-
ployees at the meeting were Daniel Brattoli, Ivan Casiano, and
Alex Lopez.6 The men discussed various issues including that
McClain was not paying its employees correctly and that they
had no job security and no representation. Alvarez took some
Local 210 authorization cards but no cards were signed at the
meeting. There was discussion about asking other McClain
employees if they were interested in a union. The next meeting
was tentatively scheduled for September 8.
The day after the August 25 meeting Frank Bruno’s cousin,
Dominic Bruno, also an employee of McClain, telephoned
Frank Bruno and asked what he was doing. Dominic Bruno

4 The document is entitled “Employee Warning Notice,” but all the
witnesses referred to this type of document as a “writeup.”
5 The Teamsters’ representative was Local 210 Vice President Bob
Bellick.
6 Frank Bruno had invited other employees to the meeting but they
had not attended. After the meeting, he told them what had been dis-
cussed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1076
told Frank Bruno to leave the Union alone or he would lose his
job.
Bruno did not work for McClain after August 25. He testi-
fied that except for Alex Lopez none of the other McClain em-
ployees present at the meeting worked after they attended the
meeting with Local 210. This testimony is borne out by Re-
spondent’s records.
Bruno tried numerous times to telephone Project Manager
Ferrer to ask why he was not working. He eventually obtained
an appointment to meet with Ferrer after Labor Day, on Sep-
tember 7, 2010. Bruno tape recorded the conversation.7 Bruno
asked Ferrer why he was not getting any work from McClain.8
Ferrer said, “They think that you have two strikes against you
. . . for that equipment damage that happened a couple of weeks
ago.” When Bruno asked how that could be two strikes when it
was one incident, Ferrer replied, “You’ve gotta talk with Al
[Ladd].” Bruno pointed out that Ferrer had written him up, not
Ladd. Ferrer said, “That’s true.” After Bruno protested that he
should only get one writeup for one incident and that Ladd had
said he would not be written up at all, Bruno asked if he was
not working because he had two strikes against him. Ferrer
replied, “No, it’s not necessarily you don’t work because of
that, Just—Because they said to give you a pink slip so you
don’t work.” Ferrer said he was told from “Virginia. They said
to give you the pink slip. Technically, since you had a CDL . . .
you’re held to a higher standard.” Bruno protested that he was
not being paid extra for possessing a CDL. Then Bruno asked
why, if he was getting a pink slip, he was on schedule to go
away the week before.9 Ferrer said he did not know, he was
trying to get Bruno on, but . . . . Bruno then protested that Fer-
rer had put him on a schedule when Ferrer knew that Bruno
was not able to go away because he had a doctor’s appointment
that could not be changed. Bruno complained that he was laid
off when half the men were getting high and when men hired
very recently were working but he was not. Ferrer advised
Bruno to speak to Regional Manager Matthew Pasquale but
Bruno said that Pasquale was not around.
Next, Bruno went to speak to Equipment and Yard Supervi-
sor Alan Ladd.10 Bruno asked Ladd why he was written up for
the arrow board incident, and apparently was charged with two
writeups for the same incident, when Ladd had informed Bruno
that he would not be written up at all. Ladd replied that Ferrer
had written the warning. Bruno protested that he should not be
charged with two writeups for one incident and further protest-
ed that he should not be laid off because other employees had
many more writeups and some had done serious damage. Ladd
told Bruno that “Virginia went through and picked out six fuck-
ing people. There’s six people that got laid off.” After Bruno
repeated his earlier points, Ladd said, “I have nothing to fuck-

7 As will be seen below, Bruno tape recorded three conversations
with management. At the instant hearing, the parties agreed on the
contents of the typed transcripts of the three taped conversations and
these were entered into evidence.
8 The transcript is GC Exh. 8b.
9 Apparently to an out of town assignment. Bruno testified that he
was not actually placed on a schedule, but he was asked whether he
could go upstate to work.
10 The transcript of this conversation is GC Exh. 8a.
ing do with any of this. This is Virginia. This is Virginia.
Every fucking thing that’s going on now is Virginia.” Bruno
kept repeating his points about the unfairness of not working
when recent hires were still getting work and the unfairness of
being held to a higher standard but not receiving higher pay for
the possession of a CDL. Bruno again asked Ladd who laid
him off and Ladd again said that it was “Virginia.” Ladd said
there was a new system that required “us to submit that sched-
ule to Virginia, and they’re going to fucking approve it.” After
some more complaints from Bruno, Ladd said, “I’m sure the
union didn’t fucking help it.” When Bruno asked, “What un-
ion” Ladd replied, “The union meeting you guys went to. That
didn’t help it.” Bruno feigned ignorance of a union meeting
and Ladd said, “Well then people are lying. . . . Whoever went
to the meeting. There’s another one on the eighth, right? To-
morrow?” Bruno asked Ladd whether he was laid off because
the “supposedly union meeting.” Ladd replied, “Everything got
back to Virginia.”
On September 13 Bruno spoke to Regional Manager Pasqua-
le in his office.11 He asked Pasquale why he was not working.
Pasquale replied that it was “pretty much” because of the acci-
dent and “there has not been a lot of work.” Bruno protested
that there were men who had been hired a few weeks ago who
were working but that Ferrer had told him he might not work
for a few months. Pasquale said, “Possibly not.” Bruno asked
whether Virginia or Pasquale had made the decision. Pasquale
replied, “It’s pretty much me.” After some discussion of Bru-
no’s August 13 accident, Bruno said that Ladd told him “some
other story about some kind of union meeting, that I went to the
union meeting.” Pasquale asked him, “All right. Did you go to
a union meeting?” When Bruno protested that it was not a
union meeting Pasquale asked, “What was it?” Bruno replied,
“It was a bunch of guys talking” and that Ladd is “telling me
that that’s the reason why.” Pasquale affirmed this, saying,
“Okay. That could play into it.” When Bruno complained that
no one was giving him answers Pasquale replied, “If you’re so
jacked on the union, go join the union.” Bruno again asked
Pasquale, “So that’s why I’m not working?” and Pasquale re-
peated, “Might be part of it.” Pasquale then advised Bruno to
file for unemployment. After some discussion Bruno reverted
to his complaint that he was getting a runaround when he tried
to find out who made the decision that he would not work and
he raised the idea that going to hear what the union representa-
tive had to say affected his job. In response, Pasquale asked
him, “Was it a union guy?” Bruno said yes, but protested that
he had not signed a card and asked what he should do. Pasqua-
le told him to sign up for unemployment. Then Bruno asked
Pasquale whether the decision came from him or from Virginia,
and Pasquale said it was from him.12
On cross-examination, Respondent’s counsel questioned
Bruno about his involvement in certain incidents, all of which

11 The transcript of this conversation begins on p. 13 of GC Exh. 8a.
12 Bruno testified that until he was let go no company official had
told him that employees who had a CDL were held to a higher standard.
I note that no company witness testified that employees had actually
been informed that if they possessed a CDL they were held to a higher
standard.
MCCLAIN & CO.

1077
took place before the July meeting where Ladd told the em-
ployees that as of that day the slate was wiped clean and three
writeups would mean termination. In April 2010, Bruno filed
an accident report after he moved into the right lane on the Belt
Parkway to avoid a car and some equipment was damaged by a
low bridge. However, Bruno acknowledged that the equipment
should have been stowed in a different way. He was not writ-
ten up or warned for this event. On May 25, 2010, Bruno was
given a “first warning” by Ladd for bringing a truck back to the
yard with branches attached to the equipment. The conse-
quence of further infractions was stated to be “loss of job.”
Also on May 25, 2010, Bruno was given a “second warning” by
Ferrer when a customer complained that a job for which Bruno
was the team leader was set up too late and took too long. The
notice said, “third infraction will result in loss of job.” Bruno
explained that he was not given enough equipment and man-
power to perform that job.13 He had been told that the job in-
volved a single lane closure, but the customer informed Bruno
that it was a double lane closure. Bruno testified that after he
complained to management about the inadequate equipment
and manpower, additional trucks and men were assigned and
the men were given gas cards so that the trucks could be fueled
before being returned to the yard after the job. On the first day
of the job, Bruno said, the trucks had to be fueled on the way to
the work location. Bruno also testified about some damage
reports he had filed including one where two cars involved in
an altercation on Staten Island damaged company equipment,
and another report where a car ran into the back of a company
truck and damaged an arrow board. He was not given warnings
for these events.
On cross-examination, counsel for Respondent tried to get
Bruno to admit that his TCT certification had expired. Bruno
was unaware of this purported fact. I note that Respondent
introduced no evidence that any TCT certification would expire
at a date certain nor did Respondent show that Bruno’s TCT
certification had in fact expired. As described above, Bruno
was reinstated pursuant to the Order of the District Court; the
company has never raised an issue with respect to his TCT.
Ivan Casiano
Ivan Casiano worked for McClain & Co. from March 10,
2009, until August 25, 2010. He was hired as a TCT, he pos-
sesses a CDL and he is qualified to operate high rail equipment
and a bucket truck to access high locations. Casiano recalled
that initially employees were not paid correctly for prevailing
rate work. Regardless of the hours they actually spent on the
job, the employees were only paid the correct prevailing rate
amount for 4 hours; they received a lower base rate for the rest
of the worktime.
After Casiano had worked as a TCT for about 1 year, Ladd
asked Casiano to be his helper in the yard. Casiano demurred
because he was not trained in repair work, but Ladd said he
would train him. Ladd told Casiano that if he did not care for
the yard repair work he could go back to his TCT job on the
road. Casiano worked for Ladd in the yard from April until the

13 The team leader has no input on staffing or equipment assigned to
a job.
end of June 2010 when he decided to leave the yard; Casiano
believed that he was not mechanically inclined. Casiano then
returned to his TCT position.
Casiano testified that the company had about 8 to 11 arrow
boards. They were in a very used condition and they were of-
ten bent, torn, and scratched. Casiano helped repair the arrow
boards in the yard.
Casiano testified that there had been about 23 TCT employ-
ees at the company but that a spate of new hires increased that
number to 35. In May 2010, Casiano heard David DeCarlo,
one of the team leaders, complain to Ladd that the new hires
were getting more work on prevailing rate shifts than the men
who had seniority. DeCarlo also complained that the work was
not being paid correctly. He asked Ladd if this would be going
on if there were a union at the company. A few other employ-
ees were in the yard at this time. Ladd said a union would not
do anything, just take their dues. Ladd added the comment that
if the men did unionize Dan McClain would most likely pack
up and run the operation out of the Connecticut location.
Casiano also complained to Ladd that new employees were
working more days a week than he was getting and Casiano
heard other employees complain to Ladd about this issue.
Ladd’s reply was always that if the employees were not happy
they should seek employment elsewhere. Brattoli told Casiano
that he had made a call to Daniel McClain complaining that
senior people were not getting enough work.
Casiano testified that a mandatory employee meeting was
held in the yard in July 2010. Ladd, Ferrer, and Pasquale were
present. Ladd spoke for about 45 minutes. Among other
things, he said that disciplinary matters taking place prior to the
date of the meeting would be “a wash.” The slate would be
wiped clean for all employees. Ladd said as of that day three
writeups would equal a termination.
Casiano attended the August 25, 2010 meeting with Local
210 at the Meadowlands Diner. Other employees present were
Michael Alvarez, Frank Bruno, Danny Brattoli, and Alex
Lopez. The followup meeting on September 8 did not take
place because of the five employees who attended in August,
the only man still working was Alex Lopez.
Casiano did not get any work after August 25. Although the
employees had been warned not to complain about lack of work
Casiano decided to contact Ferrer after he had not been given
work for 7 days. Casiano sent a text message to Ferrer com-
plaining that he was not working and Ferrer told him that he
should apply for unemployment.
On cross-examination, Casiano testified that he had an acci-
dent in the yard in May or June 2010 while moving a bucket
van during a rain storm when he ran into a tree and dented the
van. Casiano was not disciplined for this accident as he had not
been negligent. On July 6, 2010, Casiano was given a written
warning by Ferrer for returning a pickup truck to the yard with
20 cones. Ferrer wrote that the cones should have been re-
moved when the vehicle was returned to the yard. Casiano
wrote his explanation that the cones were in the vehicle when it
was issued to him for departure and he returned it in the same
condition. The warning notice was not marked as a first, se-
cond, or final warning. Ferrer added the comment that “Further
infractions can/and will result in termination.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1078
At the instant hearing, Casiano was shown a warning notice
dated 8/17/10. I note that the year appears to have been altered.
Casiano testified that he had never seen the warning before
being shown the document 2 weeks before the instant hearing.
The document is not marked as a first, second, or final warning.
The writeup was for tardiness. It stated, “The assigned job yard
time was 6 am, leave yard was 6:30. Ivan arrived 15 minutes
late.” Casiano testified that he could not have been late be-
cause the policy required him to be at the yard 15 minutes be-
fore the time for departure. If he was there at 6:15 a.m. then he
was on time. The warning states that “further infractions will
result in termination.” The warning is dated at the bottom
“8/17/81” a date which is the birthday of Ferrer, one of the
signatories on the notice. Ferrer testified that he issued the
warning on August 17, 2007. He also was not able to say what
time Casiano actually arrived at the yard on the day in question.
I shall not give any weight to this document.
Daniel Brattoli
Daniel Brattoli worked for Respondent from March 2009 un-
til August 26, 2010. He holds a TCT certification. Brattoli
testified that the employees noticed their work declining from 5
or 6 days a week to 3 or 4 days per week. Toward the end of
his employment, he was working only 2 days a week. The
senior men discussed their displeasure with this state of affairs.
Brattoli spoke to Ladd and Ferrer many times about his lack of
work. Brattoli testified that everybody was complaining. Brat-
toli told his fellow employees that he intended to call Daniel
McClain. He spoke to McClain by telephone and complained
about the situation. Brattoli told McClain he was not the only
employee upset about the lack of hours. McClain said it did not
sound right and that he would come up and take care of it.
Brattoli reported this conversation to his fellow employees.
Brattoli left two more voice mails for Daniel McClain but he
received no response.
Brattoli attended the meeting on August 25 2010.14 The men
talked about how to obtain signed authorization cards and they
discussed the benefits of unionization. According to Brattoli,
the next morning everyone at the job knew about the meeting.
No employees would sign union cards because they feared for
their jobs.
On cross-examination, counsel for Respondent questioned
Brattoli about a scheme in which a manager of Respondent
extorted money from various company employees. Brattoli
stated that before March 2010, Mark Carucci was the regional
manager in Lyndhurst. One day Carucci telephoned Brattoli
and told him that the company was going to drop his health
insurance because he did not have enough hours. Brattoli’s
wife was pregnant at this time. Carucci told Brattoli that he
would put a week’s worth of hours on Brattoli’s record and told
him to check his bank account. When Brattoli asked whether
this was a bonus, Carucci told Casiano it was a bonus from
him. The sum was $1200. Then Carucci instructed Brattoli to
take 75 percent of the sum out of the bank and pay it to him in
cash. Brattoli gave the money to Carucci. Brattoli testified that

14 Brattoli does not recall dates at all well and he was unable to place
events precisely in time.
Carucci was the regional manager; he knew that if he did not go
along with Carucci he would lose his job and his health insur-
ance. The exercise was repeated once more and Carucci prom-
ised it would be the last time. Brattoli did not notify anyone at
the company about this scheme because he feared losing his job
and his health insurance.
After Carucci’s scheme was discovered he was discharged
and prosecuted. Daniel McClain asked Brattoli whether he
knew about the checks. The company wanted all the employ-
ees to cooperate in Carucci’s prosecution. Brattoli told
McClain he had received $2400 out of which he had kicked-
back the sums to Carucci. Brattoli agreed that he would have
the amount deducted from his wages to pay back the company.
However, McClain eventually told Brattoli that he had to pay
back $5100. Although this was more than he had received,
Brattoli agreed to pay back this sum from his wages because it
was a condition of keeping his job. By the time of the union
meeting on August 25 Brattoli had paid the company all but
$1900 of the $5100 amount. On August 26 the company asked
Brattoli to drive a truck to Virginia. Brattoli had not received
sufficient notice of this trip and he could not accept the job as
he had not had adequate sleep. The trip was 12 hours down to
Virginia and 12 hours back to Lyndhurst. After this day, Brat-
toli was called for one more job and he agreed to work, but the
job was canceled. Brattoli testified that he was offered the
work so that he could pay the $1900 he had promised to give
the company.
Brattoli asked Ladd, Ferrer, and Pasquale why he was not
getting any work after August 26. They said the reason was
lack of work.
Brattoli got no more work offers from the company but he
was still obligated to pay McClain $1900. He spoke to Daniel
McClain and the latter agreed that if Brattoli gave him $1500 in
cash they would be even. Brattoli paid the $1500 in cash but
when he went to court to have the charges against him dropped,
McClain said there was still a $400 balance.15 Brattoli is now
getting this sum together to pay McClain.
Brattoli testified that about 10 other employees were part of
the Carucci scheme and they all had received more money than
he had. He named Luke, Chuck DeCarlo, Albee Roman, Sean
Alberti and Dave Melli as among those who had owed from
$5000 to $12,000. Brattoli said they all remained working for
the company after he received no more calls to work.
I note that Daniel McClain was present in the hearing room
throughout the instant hearing and did not testify. Brattoli’s
testimony is uncontradicted and I credit it.
Respondent produced a written first warning issued to Brat-
toli for failure to report to work. No year is given in the date of
the warning. Brattoli could not say for sure what year it was.
At first he said he “guessed” it was 2010 but then he said he
would be lying if he said he knew exactly. Respondent’s wit-
nesses did not give any year date for this warning. I shall not
consider this document. Another warning was issued to Brat-
toli on August 16, 2010, for failure to perform a post trip in-
spection. It is not designated a first, second, or final warning.

15 No details about any charges against Brattoli were entered into the
record.
MCCLAIN & CO.

1079
Brattoli testified that he refused to sign the notice because he
had performed the post trip inspection at the gas station while
the truck was being fueled. He protested to Daniel McClain
who agreed with him and said, “That is not in the strike zone.
You should not be getting a strike for doing a post trip at a gas
station.” Brattoli continued to be given work by the company
after this incident.
C. Testimony of Management
Matthew Pasquale
Matthew Pasquale has been the regional manager in Lynd-
hurst since March 2010.16 Pasquale described his job as being
responsible for paperwork, timesheets, credit cards, and equip-
ment schedules. He solicits business, prepares bids, and visits
jobsites. He oversees the work of Joseph Ferrer and Alan Ladd.
Pasquale testified that Ferrer is responsible for preparing the
work schedules of the Lyndhurst employees. Ferrer schedules
employees based on their qualifications and experience, their
ability to work at a certain work location, and considering the
requirements of the particular job to which the employees are
being assigned. According to Pasquale, seniority is last on the
list of criteria that are considered when making job assign-
ments.
Pasquale recalled that in mid-August 2010 Ferrer told him
that work was “curtailed” and about a week later Ferrer and
Ladd prepared a handwritten list of employees to be laid off.17
On the list were Frank Bruno, Ivan Casiano, Danny Brattoli,
Mike Alvarez, Jeff Hart, and Alex Martinez. Pasquale did not
make changes to the list, but he made the decision to approve it.
When approving the list, Pasquale did not ask Ferrer about the
abilities, experience, skill, and length of service of the men on
the list. Contrary to Pasquale’s testimony, the evidence shows
that Alex Martinez, who did not attend the union meeting, was
not laid off; the company payroll records show that he worked
the weeks of August 22 and 29, the weeks of September 12, 19,
26, the weeks of October 3, 10, 17, 24, and 31, the weeks of
November 7, 14, and 21, and the weeks of December 5 and 12.
Pasquale testified that Bruno was on the layoff list because
he had a number of accidents. Pasquale said the arrow board
that was flipped over in August sustained more than minor
damage and that it involved fixing not only the board itself but
also a wheel and the fender. The labor cost for the repairs was
between $80 and $96 but Pasquale was not sure how the arrow
board was fixed. According to Pasquale, Bruno was not laid
off because he was involved with the Union. Pasquale testified
that team leaders are generally trusted with more responsibility
by the company but he could not recall whether Bruno was a
lead man. Pasquale testified that the UB truck is highly spe-
cialized equipment but he did not know that Bruno operated
this piece of equipment. In fact, he did not know what kinds of
equipment Bruno operated. Pasquale denied that it required
skill to obtain a CDL; he added that his 16 year old daughter
could get a CDL.18

16 Pasquale testified that his predecessor was terminated because he
was stealing from the company.
17 This list was not produced herein.
18 This young lady was not present in the hearing room.
Prior to the instant hearing Pasquale had given a sworn affi-
davit in which he said, “I never asked Bruno if he attended a
union meeting, I never asked Bruno about any union meeting.”
Pasquale’s affidavit states that he did not discuss the reason for
the layoff with Bruno nor did he discuss the damaged arrow
board. The affidavit also says that Pasquale was not aware of
any other layoffs at the company.
Pasquale testified that until he spoke to Bruno in early Sep-
tember 2010 he was not aware of union organizing in New
Jersey. While speaking to Bruno on that occasion Pasquale was
not aware that Bruno was making a tape recording. However,
Pasquale listened to Bruno’s tape recording of their conversa-
tion after he gave his affidavit and before the instant hearing.
Pasquale explained that he told Bruno the Union might have
been part of the reason for the layoff because he wanted to ask
Ferrer whether he knew about the Union. After speaking to
Bruno, Pasquale asked Ferrer if he knew that Lyndhurst em-
ployees had attended a union meeting.
According to Pasquale, Brattoli was placed on the list to be
laid off because he had a meltdown in the office on August 17
and used foul language to Ferrer in the presence of women.
Pasquale was not physically present when this occurred. Dur-
ing the incident, Pasquale was on the phone with an employee
named Marissa and he heard yelling in the background; Marissa
told him that Brattoli was out of control. Pasquale asked to
speak to Brattoli and told him to leave the office immediately.
Brattoli was not given a warning notice or other discipline for
this event. Pasquale testified that Brattoli was not laid off be-
cause of his union activities.
Pasquale testified that Casiano was on the layoff list because
he had an agreement with Ladd to take over Ladd’s position in
the yard. Ladd told Pasquale if that agreement did not work
out, Casiano would not be able to return to his former position
in traffic control. In the event, Casiano did not like to work in
the yard. Pasquale acknowledged that after Casiano left the
yard he returned to his former duties when he was needed on a
job. Pasquale denied that Casiano was laid off because he was
involved with the Union.
Joseph Ferrer
Joseph Ferrer testified that he has been the project manager
in Lyndhurst since June 2010. Before that he had been a TCT
working on a lane closure crew. Ferrer is responsible for hir-
ing, scheduling, customer service, and customer relations.
According to Ferrer, team leaders are the more knowledgeable,
more experienced, and more capable employees at the compa-
ny. Not every holder of a TCT certificate is appointed a team
leader.
Ferrer said that when work was “lighter” in mid-August
2010 he put together a layoff list. Ferrer consulted with Ladd
in preparing the list. The two men reviewed criteria including
accidents, writeups, experience, skill, availability to travel to a
job, and flexibility. Seniority was not considered in choosing
the employees to be laid off. Pasquale approved the list. There
had not been any layoffs before August 2010.
On direct examination by counsel for Respondent, Ferrer
was asked about his tape recorded conversation with Bruno.
Ferrer stated that he told Bruno that Virginia had chosen him
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1080
for layoff because it permitted him to avoid dealing with the
subject. When Ferrer told the men an action had originated in
Virginia they stopped bothering Ferrer about it. Ferrer sent
Pasquale an email dated September 7, 2010, following his con-
versation with Bruno alerting Pasquale to the fact that Bruno
was very upset. Ferrer maintained that Bruno was chosen for
layoff because he had more written warning notices and acci-
dents than any other person. Concerning these warnings, Ferrer
testified about the notice of May 25, 2010, and said that Bruno
left the yard later than scheduled and arrived late at the job.
Also on May 25 the truck was returned to the yard with tree
branches on the back; it was the ultimate responsibility of the
team leader to see that debris is removed from the equipment.
Referring to the August 13 warning for the damaged arrow
board, Ferrer stated that there was extensive monetary damage
and the arrow board was out of use for about 1 week. But Fer-
rer acknowledged that had never seen the damaged arrow board
and he wrote the warning notice using Ladd’s words.
Ferrer maintained that he looked at the disciplinary records
of all the employees when preparing the layoff list.

Ferrer looked at the records of employee Gabriel Scianna who
did not have a CDL. On April 1, 2009 Scianna damaged an
arrow board and bumper. Ferrer knew that Scianna was writ-
ten up for failure to perform a pre-trip inspection on April 1,
2009. He knew that Scianna was written up on January 15,
2010 for taking an unauthorized photo of an internal company
document and showing the picture to other employees. On
July 6, 2010 Scianna was cited for failing to empty a vehicle
as required, the same infraction for which Casiano was
warned. On August 6, 2010 Scianna committed an offense
when he failed to perform a post-trip inspection and failed to
fuel his vehicle before returning to the yard. Ferrer admitted
that Scianna had more disciplinary notices than Bruno but he
said Scianna was a traffic control supervisor and the company
required him for a specific job.19

Respondent’s records establish the following:

Another employee with three write ups was Michael Ruas
who was still employed as of March 9, 2011. Ruas did not
possess a CDL. He received a first warning on March 10,
2010 for failing to file an accident report and he received a se-
cond warning on the same day for driving a company vehicle
with an expired driver’s license. Ruas was again written up
by Ferrer on July 5, 2010 for failing to arrive at the yard at the
correct time when he was the team leader on a job.20

Employee Antonio Ruiz, who did not have a CDL, was writ-
ten up on March 5, 2009 for failing to check his fuel gauge
and running out of gas on the way back from a job. Ferrer
gave him a warning notice with two blocks filled in on July 9,
2010 for failure to have a customer complete paperwork cor-
rectly and for being rude to his co-worker.21

Scott Terwilliger, who did not possess a CDL, was written up
on June 22, 2010 for arriving late to the yard for a job on

19 Scianna was laid off December 6, 2010.
20 Ruas was still employed as of the instant hearing.
21 Ruiz was still employed as of the instant hearing.
which he was the team leader and on July 28, 2010 for failing
for report to work.22

Patrick Thornton was disciplined by Ferrer on July 6, 2010
for failing to empty his vehicle before returning to the yard,
the same infraction for which Casiano and Scianna were cit-
ed.23

Dwayne Webster was written up on August 13, 2010 by Fer-
rer for failing to return his vehicle full of fuel.24

On cross-examination, Ferrer acknowledged that Bruno was
a team leader, he had a CDL, he could operate various trucks,
and he could do highly skilled jobs. Bruno was one of the more
experienced workers at the company. Ferrer acknowledged that
Bruno had fewer disciplinary notices than some other employ-
ees.
Ferrer testified that he did not know Bruno was involved
with a union when they spoke on September 7, 2010. Ferrer
first heard about the union when Pasquale told him about his
conversation with Bruno. Ferrer maintained that he only spoke
to Ladd about the union meeting after the layoffs.
Ferrer testified that Brattoli was laid off because he stormed
into the office “flipping out” and demanding to know what was
going on with his work. Brattoli “startled” the young ladies in
the office. According to Ferrer, the problem with this was that
Brattoli should have called for permission to come in and he
should not have raised his voice to Ferrer. Ferrer did not testify
that Brattoli used foul language on this occasion. On direct
examination by counsel for Respondent, Ferrer also cited as a
reason for laying off Brattoli that he had “some write-ups” and
had to be instructed in doing his job. When asked on direct
examination whether Brattoli had stormed into his office before
or after his layoff, Ferrer replied, “I don’t remember.” Ferrer
further testified that he did not know how Brattoli’s written
warnings compared to those of other company employees.
Ferrer testified that he sent his email of August 30, 2010,
warning employees “effective today, no one is allowed to come
up to the office” because he did not want Brattoli coming in
and flipping out. This suggests that Brattoli had confronted
him that day. The date comports with Brattoli’s testimony that
after August 26 he asked Ferrer why he was not getting any
more work. Thus, it is clear that Brattoli stormed into Ferrer’s
office after he was laid off.
Ferrer said Casiano was chosen for layoff because he had
agreed to be a replacement for Ladd in the yard and if he didn’t
“abide it, we weren’t going to put him back into the traffic.”
However, Ferrer recalled that it did not work out for Casiano in
the yard but he was indeed put back into traffic. Casiano need-
ed the hours and he held a CDL which “is what we needed at
the time, good to have.”
Ferrer acknowledged that after Bruno, Brattoli, and Casiano
were laid off because work was slow, other employees were
recalled and rehired by the company and new employees were
hired. Respondent produced a list of employees showing hire
date and “release date and reason.” Richard Lynch was hired

22 As of the hearing Terwilliger was still employed.
23 Thornton was laid off February 3, 2011.
24 Webster was still employed as of the instant hearing.
MCCLAIN & CO.

1081
on September 8, 2010, and laid off for lack of work on Decem-
ber 22, 2010. Angelbert Garcia was hired on September 13,
2010, and laid off for lack of work on December 6, 2010.
Thomas Howard was hired on September 15, 2010, and laid off
for lack of work on December 21, 2010. Massimilliano Giglio
was hired on September 22, 2010, and was still working on the
date of the instant hearing. Joaquin Ferrer was hired on Octo-
ber 28, 2010, and was still working on the date of the hearing.25
Ferrer testified about his August 30, 2010 email to employ-
ees which referred to telephone calls and complaints having
been made to Virginia. Ferrer’s note referred to Virginia and
stated, “Apparently, a call may have been made down there and
some complaints were made about certain things that will not
be mentioned so please don’t ask.” However, Ferrer testified
that he did not know at the time he wrote to the note that em-
ployees had called Virginia to complain. Ferrer did not explain
this obvious contradiction between his testimony and the doc-
umentary evidence.
Ferrer also testified that employees complained to him about
their hours of work and the fact that they were not getting
enough prevailing rate shifts.
Respondent did not call Alan Ladd herein and did not show
that he was unavailable to testify.
III. DISCUSSION AND CONCLUSIONS
A. Credibility of the Witnesses
I credit the testimony of Bruno. His descriptions of the vari-
ous conversations with management were supported by tape
recordings. He was cooperative on cross-examination and did
not seek to evade any questions posed by counsel for Respond-
ent.
I credit the testimony of Casiano. His testimony was given
in a forthright manner and he was cooperative on cross-
examination by counsel for Respondent. His assertions about
his agreement with Ladd were not contradicted, except by hear-
say evidence, as Respondent did not call Ladd to testify herein.
I credit the testimony of Brattoli. He was forthright on
cross-examination and he readily gave all the details of the
extortion scheme to which he was subjected by former Manager
Carucci. None of his testimony was contradicted by any wit-
ness or documentary evidence.
Before he was aware of the existence of the tape recording of
his conversation with Bruno, Pasquale gave an affidavit stating

25 In a letter submitted August 3, 2011, counsel for Respondent ob-
jects to the reference in General Counsel’s brief relating to hiring tak-
ing place after August 26, 2010. At the hearing I ruled that layoffs
taking place after August 26 would not be helpful in determining
whether the layoffs of Bruno, Brattoli, and Casiano on August 25 and
26 were lawful. I ruled that I would permit testimony about a history of
layoffs prior to that time and indeed Respondent’s witness testified that
there had been no layoffs. However, no question was raised about new
hires after August 25 and 26. Manifestly, hiring to replace employees
allegedly laid off because work was slow is directly relevant to the
issues in the case and is consistently considered in cases of this nature.
However, if I were to consider layoffs after August 26, 2010, Respond-
ent’s record shows that aside from the employees at issue herein, the
first layoff for lack of work took place on November 10, 2010, and
there were numerous layoffs in December 2010.
that he had not discussed the reason for the layoff with Bruno
and had not discussed the damaged arrow board. Pasquale also
denied asking Bruno whether he attended a union meeting. All
of these sworn assertions are incorrect. Moreover, the inaccu-
rate sworn statements in Pasquale’s affidavit go to the heart of
the issue concerning Bruno’s layoff as well as the layoffs of
Brattoli and Casiano. I find that Pasquale is not a reliable or
credible witness and I shall not credit his testimony.
On direct examination, Ferrer maintained that Bruno was
chosen for layoff because he had more warning notices than
any other employees. On cross-examination, Ferrer acknowl-
edged that Bruno had fewer disciplinary notices that some other
employees. Ferrer wrote a lengthy email to employees on Au-
gust 30, 2010, referencing calls to Virginia in which employees
complained about certain matters. However, when questioned
about the email Ferrer denied that he knew employees had
called Virginia to complain. This contradiction is unexplained.
I conclude that Ferrer gave shifting answers and that he was not
careful in his testimony. I find that he is not a reliable witness
and I shall not credit his testimony.
I also draw an adverse inference from the unexplained failure
of Respondent to call Ladd to testify herein, as well as the fail-
ure to call Daniel McClain who was present in the hearing
room throughout the trial.
B. Concerted Activities of the Employees
The evidence shows that numerous employees of Respond-
ent were concerned that recently hired men were getting more
work than seasoned workers and the employees expressed these
concerns to management. Employees were also concerned
about favoritism in the allocation of work. The record shows
that senior employees discussed these concerns among them-
selves and then complained to Ladd in the yard. Bruno’s testi-
mony that he was present when other employees complained to
Ladd establishes that the complaints were made as a group and
that they expressed general dissatisfaction about the allocation
of work as between senior men and new hires. Casiano’s un-
contradicted testimony establishes that a group of employees,
including Team Leader DeCarlo, complained to Ladd that new
hires were getting more prevailing rate work than senior em-
ployees and that the work was not properly compensated.
Casiano’s testimony establishes that DeCarlo’s complaint cited
senior employees as a group that was disadvantaged by the
assignments; DeCarlo was not only complaining about his own
job assignments. During that conversation DeCarlo wondered
aloud whether the situation would be the same if there were a
union on the premises, thereby confirming that the complaints
were a matter of collective concern and action. Brattoli’s un-
contradicted testimony shows that senior employees discussed
their displeasure with the decline in their hours of work. Brat-
toli testified that, “[e]verybody was complaining.” Brattoli
informed his coworkers that he was going to call Daniel
McClain in Virginia. Brattoli complained to McClain about the
lack of work for senior employees and he told McClain that he
was not the only employee upset about the lack of hours.
McClain assured Brattoli that it did not sound right and he
would take care of it. Brattoli reported this conversation to his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1082
fellow employees. Bruno also left a message for Daniel
McClain voicing similar complaints.
Ferrer’s emails addressed to all employees show that man-
agement was aware that the complaints about hours and the
equitable distribution of assignments were a matter of general
concern to all employees. On July 21, 2010, Ferrer acknowl-
edged that there were numerous complaints about shifts and
assignments. He told employees not to call him “about this guy
doing this and that guy doing that, I need this, and I need that”
a clear indication that he realized there were complaints about
favoritism and unfairness. On August 30, the second email sent
by Ferrer also referenced complaints made to Virginia.
The equitable distribution of their work assignments is a
matter that impacts the wages and hours of all of Respondent’s
employees. Complaints of favoritism in making assignments,
discussions among employees and bringing the matter up in
meetings with management are part of an effort to change
working conditions for all those affected by what they perceive
as an unfair system. Rock Valley Trucking Co., 350 NLRB 69,
83 (2007); North Carolina License Plate Agency #18, 346
NLRB 293 (2006). When the employees complained to Ladd,
Ferrer, and McClain their actions were engaged in with other
employees and on their collective behalves. Myers Industries,
268 NLRB 493, 497 (1984). It was not necessary for the em-
ployee who complained to management to be specifically au-
thorized in a formal agency sense to act as group spokesperson
for group complaints. Herbert F. Darling, Inc., 287 NLRB
1356, 1360 (1988).
I find that the employees who made the complaints about
work assignments were engaged in protected concerted activi-
ties.
C. Company Response to its Employees’ Protected
Concerted Activities
On July 21, 2010, Ferrer addressed an email to all employees
acknowledging that employees were complaining about shifts
and “who’s doing what and getting what.” With this communi-
cation management signaled to employees its awareness that
they were discussing and complaining about decreased hours,
fewer work assignments, and favoritism. Ferrer made it clear
to the employees that their complaints had the ultimate effect of
aggravating him and would result in their being taken off the
schedule and not receiving any more work. Thus, Ferrer
warned the employees not to call him with complaints about
favoritism and decrease in hours of work on pain of losing their
jobs.
Ferrer’s email to employees on August 30, 2010, referred to
complaints made directly to headquarters in Virginia. Ferrer
told employees that if they had questions about payroll or if
they had a question for him they could no longer come to the
office to solve their problems, also on pain of being taken off
the schedule. Ferrer implied that he had been directed to adopt
this rule, thereby giving employees the impression that head-
quarters in Virginia had imposed the new procedure as retalia-
tion for their concerted complaints.
I find that on July 21 and August 30, 2010, Respondent
threatened its employees with loss of jobs if they continued
their protected concerted activities of complaining about their
work assignments. Respondent thus violated Section 8(a)(1) of
the Act.
D. Antiunion Animus
As described above, Casiano heard DeCarlo complain to
Ladd about the unfair distribution of prevailing rate work and
the fact that such work was not being paid correctly. DeCarlo
asked Ladd whether this would be going on if there were a
union at the company. Ladd told DeCarlo that if the men orga-
nized the shop Daniel McClain would most likely close the
Lyndhurst location and move the work to Connecticut. Re-
spondent did not call Ladd; the testimony is uncontradicted.
Ladd’s statement is evidence of antiunion animus on the part of
the company.
E. Layoff/Discharge of Employees
The Respondent’s records designate Bruno, Casiano, and
Brattoli as having been laid off for lack of work but Ferrer told
Bruno that he had been ordered to give Bruno a pink slip. This
term is generally used when an employer discharges an em-
ployee. The complaint alleges that the employees were dis-
charged. The distinction between layoff and discharge is im-
material in the instant case. The evidence shows that after they
attended the union meeting on August 25, 2010, the three men
did not work for Respondent up to the date of the Consent
Agreement approved by the District Court. I shall rely on the
company documents and the testimony of Respondent’s wit-
nesses and base my decision on the evidence that the employ-
ees were laid off.
At the outset, is is clear from Ferrer’s testimony and from
Respondent’s records that employees were recalled and hired in
early and mid-September at the same time that Bruno, Casiano,
and Brattoli were being told by company managers that they
were laid off for lack of work. The evidence does not support
Respondent’s position that a layoff list was compiled for the
reason that work was slowing down.
Frank Bruno
Bruno did not receive any work assignments after attending
the union meeting on August 25, 2010. Ferrer told him the
reason for his layoff was the equipment damage on August 13.
In an extensive conversation, Bruno kept after Ferrer to explain
why he was not working. Ferrer added that Bruno possessed a
CDL and was held to a higher standard and Virginia had in-
structed him to give Bruno a pink slip. Ferrer did not reference
any incidents prior to August 13 as contributing to the layoff.
When Bruno confronted Ladd about being laid off for an acci-
dent which Ladd had assured him would not lead to a written
warning, Ladd confirmed to Bruno that Virginia had picked
employees to be laid off. Ladd gave one additional reason for
Bruno’s layoff. Ladd said he was sure the union did not “help
it.” Ladd cited the union meeting attended by “you guys,”
thereby showing that he knew other employees had been at the
meeting. When Bruno questioned Ladd’s information about the
union meeting, Ladd said if it were not true then “people are
lying.” Ladd said he knew there was another union meeting
scheduled for the next day. Bruno asked if the layoff was due
to the union meeting and Ladd replied that “everything got
back to Virginia.” Pasquale confirmed to Bruno that he was
MCCLAIN & CO.

1083
laid off because of his accident with the arrow board on August
13; he also said there was not a lot of work. Pasquale claimed
that “it was pretty much me” who made the decision not to give
Bruno any more work. When Bruno mentioned Ladd’s com-
ment about a union meeting, Pasquale asked whether Bruno
had attended a union meeting and said of Bruno’s attendance,
“that could play into it.” After Bruno asked again if he was not
working because of the union meeting, Pasquale said it “might
be part of it.” Pasquale did not deny to Bruno that his attend-
ance at a union meeting was one of the reasons the company
was not giving Bruno any more work.
I do not credit Pasquale’s testimony that Bruno was on the
layoff list because he had a number of accidents. When Bruno
confronted Pasquale right after the layoff Pasquale only men-
tioned the August 13 accident with the arrow board. His com-
ments comport with the reasons that the other managers gave
Bruno when he spoke to them right after the layoff: Ladd only
mentioned the accident with the arrow board in addition to
Bruno’s attendance at the union meeting. Similarly, I do not
credit Ferrer that Bruno was chosen for layoff because of his
many prior incidents. Right after Bruno was laid off Ferrer told
him he was selected because he had two strikes due to the acci-
dent with the arrow board on August 13. Ferrer never men-
tioned any other warning notices or incidents until he took the
stand in the instant matter. I find that the mention of incidents
or warnings dated before August 13 was an afterthought which
was added to buttress the testimony of company witnesses.26
Ferrer and Ladd prepared the list of employees to be laid off.
Pasquale testified that he approved it. Pasquale told Bruno that
he was the one who “pretty much” decided that Bruno would
not get any more work. Ladd told Bruno that the employees’
attendance at the union meeting “did not help it” in connection
with the decision to choose them for layoff. Ladd admitted to
Bruno that his attendance at the union meeting was known at
headquarters in Virginia. Ladd’s comment that “you guys”
attended a meeting and that “everything got back to Virginia”
shows that the identities of the employees who attended the
meeting were well known at the company. This comports with
Brattoli’s testimony that the morning after the August 25 meet-
ing, everybody at the job knew about it. Ladd emphasized to
Bruno that Virginia had selected the employees for layoff.
Ferrer also told Bruno that Virginia had dictated the choice of
men for layoff. At the instant hearing, Ferrer recanted this
version of events and claimed that he mentioned Virginia only
to stop Bruno from bothering him further. It is not necessary
for purposes of this decision to decide what involvement head-
quarters in Virginia had when Ladd and Ferrer made up the
layoff list and Pasquale approved it. It is clear that Ladd knew
all about the union meeting when he helped decide who was to
be laid off. I have found that Ferrer is not a reliable witness
and I do not credit his statement that he did not know about the
union meeting until September 7 and that he only spoke to
Ladd about the union after the layoffs. Further, I have found

26 On direct examination, Ferrer maintained that Bruno was chosen
for layoff because he had more warning notices than any other employ-
ees. However, on cross-examination, Ferrer acknowledged that Bruno
had fewer disciplinary notices than some other employees.
that Pasquale is not a credible witness and I do not credit his
testimony that he did not hear about the union meeting until
Bruno mentioned it on September 7. Consistent with Ladd’s
comment that “everything got back to Virginia,” I find that
Respondent’s managers in Lyndhurst and in Virginia were
aware of the union meeting when the layoff list was compiled.
Further, “Board case law is clear that the antiunion motivation
of a supervisor will be imputed to the decisionmaking official,
where the supervisor has direct input into the decision.” Bruce
Packing Co., 357 NLRB 1084 (2011).
I find that a motivating factor in selecting Bruno for layoff
was his attendance at the meeting with Local 210 on August 25,
2010. Based on my discussion below, I further find that Bruno
would not have been laid off but for his union activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
I have found above that Respondent’s citation of Bruno’s
warnings and incidents before August 13 was an afterthought
and was not considered by management in compiling the layoff
list. Further, in July 2010 Ladd had announced to the employ-
ees at a meeting attended by Ferrer and Pasquale, that the slate
would be wiped clean and that only written warnings issued
after that day would count towards discipline.27 As for Bruno’s
August 13 accident with the arrow board, his testimony was
that it would take 1 or 2 hours to repair the damage. Ladd was
responsible for repairing the arrow board and would have pro-
vided the most expert and accurate testimony of the time and
cost to make the repairs, but Respondent did not call Ladd to
testify. Pasquale put the cost of the repairs between $80 and
$90 but he was not sure how the board was actually fixed.
Ferrer wrote the warning to Bruno stating that the arrow board
had sustained “extensive monetary damage” but he admitted
that he had never seen the damaged board. I conclude that the
repairs to the arrow board took 1 or 2 hours and cost between
$80 and $90. This is hardly the extensive monetary damage
claimed by Respondent.
Comparing Bruno’s warning on August 13 to that of other
employees for matters arising after July 1, 2010, I find that on
July 6 Gabriel Scianna failed to empty his vehicle and on Au-
gust 6 he was warned for failing to perform a post-trip inspec-
tion and failing to fuel his vehicle. On July 5, 2010, Michael
Ruas was written up for failing to arrive at the yard on time
when he was the team leader on the job. On July 9, 2010, An-
tonio Ruiz was warned for failing to have the customer com-
plete paperwork and for being rude to a coworker. Scott Ter-
williger was written up on July 28 for failing to report to work.
Patrick Thornton was written up on July 6, for failing to empty
his vehicle. Dwayne Webster was warned on August 13 for
failing to fuel his vehicle. Unlike Bruno, Scianna, Ruas, Ruiz,
and Terwilliger did not possess a CDL and they were thus less
skilled and useful to the company.
Pasquale admitted that when he approved the list of employ-
ees to be laid off he did not consider the abilities, experience,
skill, and length of service of the men on the list. Pasquale did

27 Respondent did not furnish a date for this meeting and the em-
ployee witnesses were not exact in placing this event. I shall assume
that it took place on July 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1084
not know that Bruno was a lead man and he did not know what
kind of equipment Bruno operated. Ferrer compiled the layoff
list with Ladd. Ferrer testified that Bruno had a CDL and could
operate a variety of trucks and perform highly skilled jobs.
According to Ferrer, Bruno was one of the more experienced
men at the company and he was often designated a team leader.
Ferrer said that he and Ladd reviewed criteria including acci-
dents, writeups, experience, skill, availability to travel and flex-
ibility. Ferrer did not testify how these criteria were applied to
Bruno, except by citing Bruno’s writeups and accidents. As
quoted above, the handbook criteria list “company work re-
quirements” as the first factor to be considered in a layoff, but
Respondent presented no testimony that this factor was consid-
ered in Bruno’s layoff. Ferrer did not say why Bruno’s “abili-
ties, experience, and skill,” the second handbook factor, marked
him for layoff in comparison with other employees at the com-
pany. In fact, the company witnesses acknowledged that Bruno
had more experience than most of its other employees and that
he was able to operate specialized equipment that required a
high degree of skill. He was also frequently chosen to be a
team leader. Respondent presented no evidence that it consid-
ered Bruno’s “potential for reassignment,” the third handbook
criterion. As for “length of service,” the fourth criterion listed
in the handbook, the record shows that Bruno was more senior
than employees who were not laid off until November or De-
cember 2010. Although the handbook requires length of ser-
vice to be considered in layoffs Ferrer testified that seniority
was not considered in choosing the employees to be laid off.
Thus, it is clear that in deciding to lay off Bruno, Respondent
did not follow the procedure set forth in the company handbook
for selecting employees to be laid off.
Given the Respondent’s antiunion animus, the Respondent’s
knowledge of Bruno’s union activities, Ladd’s acknowledg-
ment to Bruno that his attendance at the union meeting did not
help with respect to the layoff, the fact that Bruno was laid off
immediately after the union meeting, Pasquale’s statement
Bruno’s union activities could be part of the reason he was laid
off, the weakness of Respondent’s stated reasons for laying off
Bruno and its failure to follow its own published procedure for
layoffs, I find that Bruno would not have been chosen for layoff
but for his attendance at a meeting with Local 210 on August
25, 2010. Respondent violated Section 8(a)(3) and (1) of the
Act by its layoff of Bruno.
Ivan Casiano
Casiano testified that when he became Ladd’s helper in the
yard Ladd told him that if he did not care for the yard repair
work he could go back to his TCT job on the road. After work-
ing with Ladd from April to June 2010, Casiano decided that he
was not suited for the work and he returned to his old position.
Ladd was not called to testify about his agreement with
Casiano. I have found above that Casiano was a credible wit-
ness.
Pasquale testified that Casiano was laid off because he had
an agreement to take over Ladd’s position in the yard and the
agreement was that Casiano could not return to his former posi-
tion in traffic control. Pasquale acknowledged that after
Casiano left the yard he was given work in traffic control be-
cause the company needed him. Pasquale did not explain how
this squared with his assertion that Casiano would not be al-
lowed to go back to his old job. I have found above that
Pasquale was not a reliable witness and I shall not credit this
testimony. Ferrer’s testimony tracked that of Pasquale. He
added that when Casiano was put back into traffic control it
was because Casiano needed the hours and he had a CDL
which was what the company needed. Ferrer did not explain
how his testimony squared with his assertion that Casiano could
not return to his old position. I have found that Ferrer was not a
reliable witness and I do not credit his testimony about the pur-
ported agreement between Ladd and Casiano.
I find that Ladd and Casiano had agreed that Casiano could
return to his old position in traffic control if he did not like the
yard work. Thus, I find that the Respondent’s assertion that
Casiano was laid off because he did not want to continue as
Ladd’s helper in the yard is a pretext. I have found above that
Respondent had antiunion animus and that Respondent was
aware of Casiano’s attendance at the meeting with Local 210
on August 25. I have quoted above Ladd’s statement that the
employees’ attendance at the union meeting didn’t help in the
layoff selection and Pasquale’s statement that Bruno’s attend-
ance at the union meeting could be part of the reason he was
laid off. Further, Casiano was laid off immediately after he
attended the union meeting. I find that Respondent selected
Casiano for layoff because he attended a meeting with Local
210. Respondent thus violated Section 8(a)(3) and (1) of the
Act.
Daniel Brattoli
Ferrer testified that Brattoli was laid off because he stormed
into the office demanding to know what was going on with his
work. According to Ferrer this “startled” the young women
who worked in the office. Additionally, Ferrer cited “some
writeups” and asserted that Brattoli had to be instructed about
his work. Significantly, Ferrer also testified that he could not
recall whether Brattoli stormed into his office before or after
his layoff. And Ferrer stated that he did not know how Brat-
toli’s written warnings compared with those of other employees
who were not laid off.
As shown above, the documentary evidence shows that Fer-
rer issued many written warnings but Brattoli was not issued a
written warning for the incident in Ferrer’s office and Respond-
ent offered no explanation for this omission. The failure to
write up Brattoli for the incident in Ferrer’s office confirms that
it took place after Brattoli was laid off.
I have found that the incident in Ferrer’s office took place af-
ter Brattoli was laid off and so it could not have been the cause
of his layoff. Also as explained above, Respondent produced
one undated disciplinary notice for Brattoli and I will not con-
sider that document. According to Brattoli, the other written
warning was countermanded by Daniel McClain; Respondent
did not produce any testimony to contradict this assertion.
Thus, there were no valid writeups outstanding against Brattoli
when he was laid off. Finally, Ferrer did not offer any details
about having to instruct Brattoli to do his work and I shall not
credit this vague and unsubstantiated assertion.
MCCLAIN & CO.

1085
Pasquale testified that Brattoli was laid off because he had a
meltdown in the office on August 17 and used foul language in
the presence of women. Pasquale was not present when this
occurred. I have found above that Pasquale is not a reliable
witness and I do not credit Pasquale that it took place on Au-
gust 17, 2010. Further, when Brattoli asked Pasquale, Ferrer,
and Ladd why he was laid off, not one of them mentioned an
incident in Ferrer’s office. I find that Brattoli’s conduct in
Ferrer’s office was a pretext used by Respondent to justify
Brattoli’s layoff after the fact.
Based on Respondent’s antiunion animus, its knowledge that
Brattoli attended the meeting with Local 210 on August 25,
Ladd’s statement that the employees’ attendance at the meeting
did not help them, the fact that Brattoli was laid off immediate-
ly after the union meeting and Pasquale’s statement to Bruno
that his attendance at the meeting could be part of the reason he
was laid off, I find that Respondent selected Brattoli for layoff
because he attended a union meeting. Thus, I find that Re-
spondent violated Section 8(a)(3) and (1) by laying off Brattoli.
F. Coercive Interrogation and Impression
of Surveillance
I do not find that Bruno, Brattoli, and Casiano were open un-
ion supporters at the Lyndhurst facility. Bruno testified that a
number of employees had been asked to attend the meeting but
there is no evidence that this occurred at the yard. There is no
evidence that the men openly discussed the Union on the job or
that they expressed interest in the Union when in the presence
of their supervisors or managers.
On September 7, 2010, Ladd told Bruno that he had been
laid off and that going to the union meeting did not help it with
respect to the layoff. Ladd told Bruno that he knew employees
had attended a union meeting and he asked, “There’s another
one [union meeting] on the eighth, right? Tomorrow?” Ladd’s
statement created the impression that the employees’ protected
concerted activities were under surveillance.
Further, Ladd’s question as to when the next meeting would
be held was coercive. Bruno was loathe to admit that he at-
tended a union meeting. The context of the conversation was a
protest by Bruno that he was not being given any work; Ladd
asked about the union meeting right after informing Bruno that
going to a union meeting did not help him with respect to his
layoff. Under all the circumstances, I find that Respondent
violated Section 8(a)(1) by Ladd’s coercive interrogation of
Bruno. Demco New York Corp., 337 NLRB 850 (2002).
On September 13, 2010, Bruno asked Pasquale why he had
been laid off and Pasquale told Bruno he had selected him for
layoff. When Bruno mentioned that Ladd had attributed the
layoff to “some story” about attendance at a union meeting,
Pasquale asked, “All right. Did you go to a union meeting?”
Pasquale told Bruno that the union meeting might be part of the
reason he was selected for layoff. After Bruno protested that it
was not a union meeting, Pasquale asked, “What was it?” Later
in the conversation, Pasquale asked about the representative at
the meeting, “Was it a union guy?” Under all the circumstanc-
es, I find that Pasquale’s questioning was coercive. Pasquale is
the highest management representative in Lyndhurst. He was
discussing Bruno’s layoff and he confirmed to Bruno that at-
tending a union meeting could be part of the reason he was laid
off. Pasquale’s questions, interspersed with the information
that involvement with the Union could lead to loss of work,
amounted to a coercive interrogation. Demco, supra.
CONCLUSIONS OF LAW
1. By laying off Frank Bruno, Ivan Casiano, and Daniel Brat-
toli because they engaged in union activities, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
2. By threatening its employees with loss of work if they
complained concertedly about the distribution of work assign-
ments, Respondent violated Section 8(a)(1) of the Act.
3. By creating the impression that its employees’ union ac-
tivities were under surveillance, Respondent violated Section
8(a)(1) of the Act.
4. By coercively interrogating its employees about their un-
ion activities, Respondent violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily laid off employees,
it must offer them reinstatement and make them whole for any
loss of earnings and other benefits, computed on a quarterly
basis from date of layoff to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as comput-
ed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended28
ORDER
The Respondent, McClain & Co., Inc, Lyndhurst, New Jer-
sey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting Teamsters Local 210, International
Brotherhood of Teamsters, or any other union.
(b) Threatening employees with loss of work if they com-
plain concertedly about the distribution of work assignments.
(c) Creating the impression that its employees’ union activi-
ties are under surveillance.
(d) Coercively interrogating any employee about union sup-
port or union activities.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

28 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1086
(a) Within 14 days from the date of the Board’s Order, offer
Frank Bruno, Ivan Casiano, and Daniel Brattoli 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.
(b) Make Frank Bruno, Ivan Casiano, and Daniel Brattoli
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful layoffs, and
within 3 days thereafter notify the employees in writing that
this has been done and that the layoffs will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Lyndhurst, New Jersey, copies of the attached notice
marked “Appendix.”29 Copies of the notice, on forms provided
by the Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In addition to physical post-
ing of paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since July 21, 2010.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

29 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.”
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT select you for layoff or otherwise discriminate
against any of you for supporting Teamsters Local 210, Interna-
tional Brotherhood of Teamsters, or any other union.
WE WILL NOT threaten you with loss of work if you complain
concertedly about the distribution of work assignments.
WE WILL NOT create the impression that your union activities
are under surveillance.
WE WILL NOT coercively question you about your union sup-
port or activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Frank Bruno, Ivan Casiano, and Daniel Brattoli 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.
WE WILL make Frank Bruno, Ivan Casiano, and Daniel Brat-
toli whole for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful layoffs of Frank
Bruno, Ivan Casiano, and Daniel Brattoli, and WE WILL, within
3 days thereafter, notify each of them in writing that this has
been done and that the layoffs will not be used against them in
any way.

MCCLAIN & CO., INC.