Neshaminy Electrical Contractors

National Labor Relations Board - Board Decisions

Aug 8, 2001

334 N.L.R.B. 994 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994
Neshaminy Electrical Contractors, Inc. and Interna-
tional Brotherhood of Electrical Workers, Local
Union 269, AFL–CIO. Case 4–CA–29716
August 8, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
On April 13, 2001, Administrative Law Judge Marga-
ret M. Kern issued the attached decision. The Charging
Party filed exceptions and a supporting brief. The Re-
spondent filed a brief in opposition to the Charging
Party’s exceptions, and the Charging Party filed a brief in
reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Michael C. Duff, Esq. and Noelle Reese, Esq., for the General
Counsel.
Raymond A. Kresge, Esq., for the Respondent.
Richard Aicher, for the Charging Party.

BENCH DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This
case was tried before me in Philadelphia, Pennsylvania, on
March 19 and 20, 2001. The complaint, which issued on Sep-
tember 27, 2000, was based on an unfair labor practice charge
filed on August 22, 2000, by the International Brotherhood of
Electrical Workers, Local Union 269, AFL–CIO (the Union)
against Neshaminy Electrical Contractors, Inc. (Respondent).
It is alleged that on August 18, 21, and 22, 2000,1 Respondent
violated Section 8(a)(1) of the Act by creating the impression
of surveillance of employee Joseph Rearick’s union activities
and by suggesting to Rearick he should resign his employment
because of his union sympathies. It is further alleged that Re-
spondent violated Section 8(a)(3) and (1) of the Act by sus-
pending Rearick on August 21, and by discharging him on Au-
gust 22.

1 The Charging Party 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 We adopt the judge’s recommended dismissal of the complaint al-
legation that the Respondent unlawfully discharged Joseph Rearick on
August 22, 2000. In doing so, we rely on her dispositive finding that
the record fails to establish that Rearick was, in fact, discharged. Con-
sequently, we find that it is unnecessary to pass on the judge’s analysis
under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1981),
cert. denied 455 U.S. 989 (1982).
1 All dates are in 2000 unless otherwise indicated.
At the conclusion of the hearing, I issued a bench decision
pursuant to Section 102.35(a)(10) of the National Labor Rela-
tions Board’s Rules and Regulations. I certify that my decision
was accurately reproduced at pages 275 through 294 of the
transcript, attached as an appendix.2
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices as
alleged in the complaint.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended3
ORDER
The complaint is dismissed.
275
APPENDIX
ADMINISTRATIVE LAW JUDGE KERN: On the record.
Good morning, everyone. This is a continuation of a hearing
in the matter of Neshaminy Electrical Contractors, Inc., Case
Number 4–CA–29716. Let the record show that counsel are
present.
I’m prepared to issue my decision in this case.

BENCH DECISION
This case was tried before me in Philadelphia, Pennsylvania,
on March 19th and 20th, 2001. The complaint, which issued on
September 27, 2000, was based upon an unfair labor practice
charge filed on August 22, 2000, by the International Brother-
hood of Electrical Workers, Local Union 269, AFL–CIO,
herein called the Union, against Neshaminy Electrical Contrac-
tors, Inc., herein called the Respondent.
It is alleged that on August 18, 21, and 22, 2000,1 Respon-
dent violated Section 8(a)(1) of the Act by creating the impres-
sion of surveillance of its employee’s Union activities and by
suggesting to employee Joseph Rearick that he should resign
his employment because of his Union activity.
2 I have corrected the transcript by making physical inserts, cross-
outs, and other obvious devices to conform to my intended words with-
out regard to what I may have actually said in the passages in question.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1 All dates are in 2000 unless otherwise indicated.
334 NLRB No. 126
NESHAMINY ELECTRICAL CONTRACTORS 995
It is further alleged that Respondent violated Sections 8(a)(3)
and (1) of the Act by suspending Rearick on August 21, 2000,
and by discharging him on August 22, 2000.
For the reasons set forth herein, I recommend that the
276
complaint be dismissed.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2) (6) and (7) of the
Act. Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II.
A. Background
Respondent is engaged in the business of heavy industrial
and commercial electrical installation in and about the State of
Pennsylvania. John Lyons is Respondent’s president, part
owner, and an admitted supervisor and agent within the mean-
ing of the Act. Dennis Morrin is Lyons’ partner and a part
owner.
Respondent employs approximately 130 electricians. Re-
spondent maintains an office and shop in Bensalem, Pennsyl-
vania. Employees generally report to the shop each morning.
A large board with magnetic name tags shows the job and truck
to which employees are assigned, and they then travel to their
respective job sites. The assignment of employees to job sites
is managed by Morrin.
B. Rearick’s Employment History
John Rearick was hired by Respondent in May 1997 as an
electrician’s helper. His wife at the time, Frances Rearick,
worked for a customer of Respondent and she asked Lyons to
hire her husband. At the time he was hired, Rearick had no
277
electrical experience. His starting rate of pay was $10 per hour
and during the course of his employment he received three or
four raises bringing his final rate of pay to $15 per hour.
According to Lyons, for the most part, Rearick was a good
worker who advanced from the helper position to a more quali-
fied electrician. Had he remained in Respondent’s employ,
according to Lyons, Rearick would have continued to receive
the same raises as other employees.
There were, however, some problems with Rearick’s work
and he was disciplined for three separate incidents. The first
incident occurred in the latter part of 1999 or early 2000 at a
job site in Mansfield. The foreman on that job was Jake Mur-
phy. Rearick failed to use proper strapping materials to secure
ceiling cable and, as a result, Respondent failed a daily inspec-
tion.
Shortly thereafter, in January 2000, Rearick was observed
driving onto a job site with his personal truck. He was late
arriving to work, hit a curb with his truck, and knocked over a
newly installed sign. Lyons testified that this conduct was ob-
served by the owner of the project who ordered Rearick off the
site. As a result of these two incidents, Rearick received a writ-
ten warning on January 21.
The third incident occurred in March when Rearick, along
with three other employees, were written up for leaving
278
unattended tools and trash in a company vehicle. According to
Lyons, none of these incidents, either singularly or collectively,
warranted Rearick’s termination.
Craig Berdomas is a foreman who was assigned to a job site
in Jackson, New Jersey. According to Berdomas, Rearick had
been assigned to this job site from time to time in 2000. Ber-
domas did not consider Rearick to be a particularly good
worker and he found him very short-tempered and difficult to
pair up with other employees. He nevertheless worked with
Rearick whenever he was assigned to the Jackson site.
In August Rearick was assigned to a job site in Villanova.
Lyons testified that the general contractor on the job com-
plained that he saw Rearick talking on his cell phone during
working time. The general contractor advised Respondent that
he was not going to pay for Rearick to be on his cell phone all
day. As this was a job billed on a time and materials basis,
Rearick was assigned to the Jackson job, which was a contract
price job.
Rearick’s last day on the Villanova job was Wednesday, Au-
gust 16. Rearick did not report for work on Thursday, August
17, and on Friday, August 18, Rearick was assigned back to the
Jackson job site under Berdomas’ direction.
C. Rearick’s Union Activity
Rearick testified that in July 1999 he became interested in
joining the Union and he met with Richard Aicher, an
279
assistant business manager and organizer. At about the same
time as this initial contact with the Union, Rearick separated
from his wife, Frances, and it appears by all accounts that this
was an acrimonious dissolution.
After meeting with Aicher, Rearick decided that he did not
want to get further involved with the Union. Seven months
later, however, in February, Rearick again contacted the Union
because he felt he was being treated unfairly on the job. This
time he met with another assistant business manager and organ-
izer, Tom Bates. Rearick agreed during the course of his meet-
ing with Bates to become a volunteer organizer.
According to both Rearick and Bates, from February to Au-
gust, Rearick called Bates on a weekly basis. He gave Bates
the location of job sites he was working on, and the names,
addresses, and telephone numbers of fellow employees.
Rearick did not at any time, distribute authorization cards al-
though he himself signed a card in April.
Bates testified that in mid-August, the decision was made by
the Union business manager that Rearick should no longer
maintain a passive information-gathering role, but rather
Rearick should reveal his identity to Respondent as a Union
organizer. According to Bates, in order to effectuate Rearick’s
coming out into the open as a Union organizer, he gave Rearick
literature to distribute to employees. Rearick
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 996
280
testified that he received that literature on Thursday, August 17,
the day after he was removed from the Villanova job and the
day before he was assigned to the Jackson job.
At about the same time that the decision was made for
Rearick to assume a more active, public role in organizing Re-
spondent’s employees, Lyons testified that he met with
Rearick. According to Lyons, employees had come to him
saying Rearick was unhappy and thinking of quitting. Lyons
told Rearick that if he was unhappy and had something to say
to him, Rearick should come in and talk to him himself and not
send other employees to speak for him. According to Lyons,
Rearick said okay. This conversation, according to Lyons, took
place about a week before August 18, and there was no refer-
ence to the Union. Rearick did not testify regarding this con-
versation.
D. The Events of August 18th
On the morning of Friday, August 18, Rearick and Berdomas
had a one-on-one conversation at the Jackson job site. Accord-
ing to Rearick, Berdomas approached him and said he wanted
to give Rearick a heads up. He said that Rearick was under a
microscope and that everything he did was being watched.
Rearick asked Berdomas why and, according to Rearick, Ber-
domas said he didn’t know why but “somebody must have said
something.”
Berdomas testified that on the morning of August 18, he
281
was told by Morrin that Rearick was being assigned to Jackson
and that Berdomas should make sure that he stayed busy. Ber-
domas met with Rearick at the job site and said, “Joe, I don’t
know what you did, but I’m to make sure that you’re busy all
day.” Rearick asked Berdomas what that was supposed to
mean and Berdomas responded that they, referring to manage-
ment, wanted Berdomas to keep an eye on him. Berdomas told
Rearick just to do his work and that he would go back and tell
Morrin that he did his work and give him a good report.
Rearick’s response to this was to tell Berdomas that he was
tired of this, “fucking shit,” and that he knew that it was Jake
Murphy who was accusing him of poor work performance.
According to Berdomas, Rearick continued to yell about the
incident involving crashing his personal vehicle and about be-
ing sent home. Berdomas told Rearick that he didn’t really care
about these incidents, to just have a good day at work. Berdo-
mas assigned Rearick to a specific job and checked on him
perhaps once that day but no more frequently than he checked
on other employees.
According to both Rearick and Berdomas, at no time was
there any mention of the Union during the course of their con-
versation on August 18. Berdomas testified he was told by
Morrin to watch Rearick because his production was down and
there was no reference by Morrin to the Union. Morrin did not
testify.
282
Rearick testified that following his conversation with Ber-
domas, he distributed Union literature to approximately eight
employees during the lunch break. He could not recall the
name of any employee to whom he gave the literature and the
literature was not introduced in evidence.
E. The Events of August 21
Rearick reported to the shop at his usual time around 5 a.m.
He approached Lyons and asked why he was being watched.
Lyons told Rearick to come into his office and Rearick com-
plied. No one else was present for the conversation that fol-
lowed.
According to Rearick, he asked Lyons why he was under a
microscope. Lyons said it was obvious that Rearick was un-
happy working for Respondent, and that a couple of employees
had come to him and told him they were uncomfortable with
Rearick’s conversations on the job. Rearick testified that Ly-
ons told him that about a year ago Rearick’s wife, Frances, had
called Lyons and told him that Rearick was involved with the
Union. Rearick responded by telling Lyons to please stop play-
ing games with him and if he was going to fire him, to just fire
him. Lyons said he had no reason to fire him, but that if
Rearick wanted him to lay him off, he would. Lyons said
Rearick was a good worker and other employers would hire
him. According to Rearick’s version on direct examination,
Lyons said that he should “take a day or two” and see if he
wanted to continue to work for
283
Respondent, and to let Lyons know. Rearick also testified that
his understanding of Lyons’ statement, “to take a day or two”
meant to go home. Rearick testified he did not think he was
suspended when Rearick made this statement, but he did take it
to mean he should go home. On cross examination, however,
he testified Lyons told him to go home. Rearick did not report
to the Jackson job site that day. He did, however, telephone
Bates and relayed the substance of his conversation with Lyons.
Lyons’ version of the conversation in the office is that
Rearick said he did not like being watched and he did not like
being moved from job to job. Lyons said that Morrin schedules
the men, and that Rearick was being assigned to Jackson where
he was needed. At that point, Rearick said, “why don’t you fire
me or lay me off.” Lyons said he had no reason to fire him or
lay him off, that, in fact, he needed him. Rearick again said
that Lyons should fire him or lay him off. Lyons said he would
not do that. He said he knew that Rearick was unhappy and
that he should work the week, and if he didn’t want to continue
to work he could go elsewhere. Rearick responded by saying
he knew that this all started when Frances told Lyons about
Rearick’s being in the Union. Lyons responded that he had
known for a year that Rearick was involved with the Union
because, in fact, Frances had told him so. But he pointed out to
Rearick that he was still employed a year later and he didn’t
care about the Union. Rearick said he wasn’t in the Union and
Lyons said fine. They shook hands. Rearick did not
284
say he was not going to report for work and when he left, it was
Lyons’ understanding that he was enroute to the Jackson job
site. Lyons denied telling Rearick to take a few days off. He
testified he said just the opposite, that Rearick should continue
NESHAMINY ELECTRICAL CONTRACTORS 997
to work the week and think about whether he wanted to con-
tinue to be employed.
At approximately 4:50 p.m. on the afternoon of August 21,
Bates faxed a letter to Lyons stating, “please be advised your
employee, Joseph Rearick, is a volunteer Union organizer en-
gaged in organizing activities protected by the National Labor
Relations Act.”
Lyons acknowledged receiving this letter that afternoon. He
also admitted that he was angered by the fact that Rearick had
taunted him that morning by repeatedly asking Lyons to fire
him or lay him off, which Lyons would not do, and then denied
having any involvement with the Union.
F. The Events of August 22
Rearick again reported to the shop at his usual time of 5 a.m.
According to Rearick, as he approached the door to enter, Ly-
ons opened the door and stood in the doorway. He looked di-
rectly at Rearick and made a motion with his hand as if he were
waving goodbye. In a screaming voice, he called Rearick a
fucking liar. Rearick asked what he was talking about and
Lyons shoved the Union’s letter in his face, saying,
285
“here, you fucking idiot, the guys tried to warn me but I didn’t
listen.” Lyons continued that the Union could file all the law-
suits it wanted and that the Union would chew Rearick up and
spit him out. He added, “this was the best God damned job you
ever had.” Rearick got into his truck and left and never re-
turned to work again. He testified that he construed Lyons’
words and actions to mean that he was terminated.
According to Lyons’ version, he saw Rearick approaching
the door that morning and he retrieved the Union’s letter from
the afternoon before and held it in his hand. He met Rearick at
the door and extended his hand toward Rearick, holding the
letter, and called him a fucking liar. According to Lyons,
Rearick took the paper from his hand and repeated, “what’s
this, what’s this.” He then backed up toward his truck. Lyons
said “this is the best job you have, the Union is going to spit
you out.” He said the Union could file all the NLRB suits it
wanted and added “this is a good job, I don’t know what your
problem is.” Rearick asked what Lyons was going to do to him
and Lyons did not respond. Lyons denied in his testimony
telling Rearick that he was fired. He denied waving or making
any gesture indicating that he was saying goodbye. He did not
physically push or hit Rearick. According to Lyons, when
Rearick arrived that morning, his name was still on the board to
be assigned to the Jackson job site and Lyons considered him
an active employee.
G. The Events Following August 22
286
Rearick did not report to the Jackson job site on August 22
or 23 and he testified that by August 23 or 24, the Union had
gotten him another job.
On August 23, Lyons addressed a letter to Rearick which
read, in relevant part, “On both Tuesday, August 22 and today,
you did not report to work for your assigned job on the Jackson,
New Jersey project, nor did you call in your absences. The
Company still has you on its payroll and considers you to be an
active employee. However, given your recent absences without
call-in, the Company does not know whether or not you have
quit your job. Should you desire to remain an employee of the
Company, please report to work on the first day after your re-
ceipt of this letter or at least call with an explanation of your
absences. Should you not report to work or call with an expla-
nation by August 29, 2000, the Company will treat you as hav-
ing abandoned your job and will process you as a quit.”
This letter was mailed the same day that it was dated, August
23, and it was sent certified mail, return receipt requested to
Rearick’s last known address, 508 Society Place in Newtown,
Pennsylvania. Two days later, on August 25, Rearick’s pay-
check was sent to the same address.
Unbeknownst to Respondent, in or about June, Rearick had
287
moved from the Society Place address to 3609 Genesee Place
in Phildadelphia. Rearick had not informed Respondent of this
change. The envelope containing the paycheck, which was
mailed on August 25 and addressed to the Society Place ad-
dress, was forwarded by the postal service to Rearick’s Phila-
delphia address. Rearick acknowledged receipt of the check
and he, in fact, cashed it. Rearick denied, however, ever re-
ceiving the August 23 letter which offered to keep his job
available until August 29. According to Rearick, this letter was
not forwarded to his new address.
The August 23 letter, as indicated, was sent certified mail,
return receipt requested. Sometime in the first week of Sep-
tember, Lyons received the letter back from the post office,
undelivered. Numerous red ink stamps appeared on the face of
the envelope indicating addressee unknown. However, hand-
written on both the front and back of the envelope are the
words, “Fwd 3609 Genesee Pl, Phila. PA.” The letter was
never signed for even though Rearick testified that he continued
to live at the Philadelphia address until in or about the end of
September.
Lyons’ uncontradicted testimony is that he maintained medi-
cal insurance coverage for Rearick through the latter part of
September.
III. ANALYSIS
Resolution of the issues in this case turns almost entirely on
credibility. I have considered the testimony of the witnesses
including their demeanor on the witness stand and
288
I conclude that Rearick was a less than candid witness. I do so
for several reasons.
First, important aspects of Rearick’s testimony were im-
peached on cross examination and by two pretrial affidavits. In
his testimony at trial, Rearick contradicted himself. On direct
examination he testified Lyons told him to take a day or two;
on cross examination he said Lyons said to take a day or two
off. His pretrial affidavits reflect the same inconsistency. In an
affidavit given to the Union on August 22, Rearick stated Ly-
ons told him to take a day or two off. In an affidavit given a
week later to a Board agent, Rearick stated Lyons told him to
think about whether he wanted to continue to work “and let him
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998
know in a day or two.” Rearick conceded on cross examination
that he was not suspended on August 21.
Second, Rearick’s inability to recall the name of a single
employee to whom he allegedly distributed Union literature to
on August 18 was disturbing. As a result of this memory lapse,
not a single person testified, or could be called to testify, to
corroborate Rearick’s account that he, in fact, did hand out
literature that day. Neither Aicher nor Bates saw Rearick dis-
tribute the literature, which I again note was not introduced in
evidence.
Third, Rearick’s demeanor on the witness stand demonstra-
bly changed between direct and cross-examination. One meas-
ure of credibility is the consistency with which a witness an-
swers questions on both direct and cross. While Rearick was
289
calm and forthright on direct examination, when questioned by
Respondent’s counsel, he became defensive, argumentative,
and hostile. He several times looked askance at counsel, was
sarcastic and smiled in a condescending fashion. This was
particularly apparent when he was confronted with the incon-
sistencies in his affidavits.
In sum, I found Rearick to be not credible and his testimony
not trustworthy or reliable. In contrast, I found both Berdomas
and Lyons to be far more credible and believable. Unlike
Rearick, Berdomas and Lyons testified with equanimity on both
direct and cross-examination. I was impressed with Lyons
admitting the fact that he was angered by Rearick’s having
misrepresented his involvement with the Union and that he
called Rearick a liar on the morning of August 22. This testi-
mony was clearly not in Respondent’s interest and Lyons’ will-
ingness to admit to these facts enhanced his credibility in my
view. His uncontradicted testimony is that he has hired Union
electricians in the past, and the fact that an employee is a Union
member does not disqualify him for employment with Respon-
dent.
Berdomas was called initially as a witness for the General
Counsel to establish Berdomas’ status as Respondent’s agent.
Berdomas answered the General Counsel’s questions candidly
and completely. When questioned by Respondent’s counsel, he
290
maintained the same straight-forward demeanor. In short, Ber-
domas and Lyons were simply believable witnesses.
Although Aicher and Bates were generally credible wit-
nesses, they were not present for any of the critical conversa-
tions in this case and, thus, their testimony does not aid in the
resolution of what was said in the one-on-one conversations
between Rearick and Berdomas, and Rearick and Lyons.
The credible testimony of Lyons therefore establishes that
Respondent had knowledge of Rearick’s interest and involve-
ment with the Union for approximately a year prior to his dis-
charge, this the result of a conversation between Rearick’s es-
tranged wife and Lyons. Indeed, in Rearick’s affidavit given to
the Board, he stated, “My wife and I have been separated in
June of 1999 and in the process of an unfriendly divorce. I
believe she informed Lyons of my Union activity to get me in
trouble with my boss.”
In the year following Respondent’s acquisition of this
knowledge, there was no expression of animus towards his
Union sympathies. Significantly, from 1999 to 2000, there
were three incidents in which Rearick was disciplined. One
involved poor work performance and two involved misbehavior
on or involving company property. None of these incidents
was used as justification to terminate Rearick. Indeed, Rearick
was considered by Lyons for the most part to be a good em-
ployee to
291
whom he continued to give customary raises.
The credible evidence establishes that on August 16, Rearick
was taken off the Villanova job site because he had been ob-
served by the owner of the site talking on his cell phone during
work time. The credible evidence further establishes that on
the morning of August 18, Berdomas was told by Morrin to
make sure he got a full day’s work out of Rearick. It is true
that Berdomas testified that he thought this request somewhat
odd, but I credit his testimony that Morrin made no reference to
the Union in giving Berdomas this instruction, and I further
credit Berdomas’ denial that he was aware of Rearick’s Union
activities. I credit Berdomas’ testimony that when he told
Rearick that he was being watched and that if he put in a good
day’s work he would give a good report to Morrin, Rearick’s
reaction was to complain that he was being accused of poor
work performance by foreman Jake Murphy. I credit him that
there was no mention whatsoever of the Union. Berdomas’
statement referred to work-related issues and I find, based on
Berdomas’ credible testimony, that Rearick understood his
statement to refer to work-related issues.
I, therefore, find the evidence fails to establish that on Au-
gust 18 Berdomas created the impression that Rearick’s Union
activities were under surveillance and I recommend dismissal
of that portion of the complaint.
292
The credible evidence further fails to establish that on Au-
gust 21, Lyons created the impression of surveillance by telling
Rearick that employees had reported to him of conversations
they had with Rearick. It fails to establish that Lyons suggested
Rearick resign and seek employment elsewhere, and it fails to
establish that Lyons told Rearick not to report to work for a few
days. I credit Lyons testimony that he never made these state-
ments, that he, in fact, encouraged Rearick to continue working,
and to give himself more time to reflect on whether he wanted
to continue to work for Respondent in view of the fact that he
was unhappy his work assignments. By Rearick’s own admis-
sion, he did not think he was suspended on August 21. I, there-
fore, recommend dismissal of those allegations in the com-
plaint.
Finally, the credible evidence fails to establish that Lyons
discharged Rearick on August 22. I do find that Lyons did
angrily and forcefully call Rearick a liar. He did make the
statement that the Union would chew Rearick up and spit him
out, and he did say words to the effect that this was the best job
Rearick would ever have. I discredit Rearick’s testimony that
Lyons made the non-verbal gesture of waving goodbye, and I
NESHAMINY ELECTRICAL CONTRACTORS 999
discredit the suggestion that Lyons physically blocked Rearick
from entering the premises. The credible evidence is that when
Rearick was shown the Union’s letter, he got into his truck and
drove away.
293
In MDI Commercial Services, 325 NLRB 53 (1997), the
Board set forth the standard that is to be applied under these
circumstances. The test of determining whether an employer’s
statements constitute an unlawful discharge depends on
whether they would reasonably lead the employees to believe
that they had been discharged, and the fact of the discharge
does not depend on the use of formal words of firing. It is suf-
ficient if the words or actions of the employer would logically
lead a prudent person to believe his tenure has been terminated.
Lyons’ words fell far short of termination. And I find that
Rearick’s failure to thereafter report to work was of his own
volition. I further find, based on Lyons’ August 23 letter, that
Rearick’s job was available to him until August 29. It is sig-
nificant that Lyons wrote this letter prior to his receipt of the
unfair labor practice charge in this case. Based on all these
circumstances, I recommend dismissal of that portion of the
complaint alleging Rearick’s unlawful termination.
In all cases alleging a violation of Section 8(a)(3) or viola-
tions of 8(a)(1) turning on employer motivation, the General
Counsel is required in the first instance to make a prima facie
showing sufficient to support the inference that protected con-
duct was a motivating factor in the employer’s decision. Once
this is established, the employer has the burden to demonstrate
that the same action would have taken
294
place even in the absence of the protected conduct. Wrightline,
a Division of Wrightline, Inc., 251 NLRB 1083 (1980), enfd.
622 F.2d 899 (1st Cir. 1981), cert denied 455 US 989 (1982),
approved in NLRB Transportation Management Corp., 462 US
393 (1983).
In this case, I conclude that the General Counsel has failed to
make out a prima facie case of unlawful discrimination since I
find that Rearick was not suspended on August 21 and was not
discharged on August 22. Rather, I find, as contended by the
Respondent, that Rearick abandoned his employment and was
employed at another job, obtained through the Union, by the
very next day or day after.
I therefore recommend that the complaint be dismissed in its
entirety. I will issue my final conclusions of law in a written
decision, which will follow. Thank you.
MR. DUFF: Thank you, Your Honor.
JUDGE KERN: The hearing is closed.
(Whereupon, at 11:00 a.m., the hearing in the above-entitled
matter was concluded.)