Network Dynamics Cabling, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 735 (N.L.R.B. 2004)

NETWORK DYNAMICS CABLING, INC. 735
Network Dynamics Cabling, Inc. and International
Brotherhood of Electrical Workers Local Union
98, AFL–CIO. Cases 4–CA–27102, 4–CA–28171,
and 4–CA–28213
April 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On September 17, 2001, Administrative Law Judge
George Aleman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the judge’s
decision.
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 and
to adopt the recommended Order as modified below.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Network
Dynamics Cabling, Inc., Westchester, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(f).

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.
The Respondent also contends that some of the judge’s credibility
findings demonstrate bias. On careful examination of the judge’s deci-
sion and the entire record, we are satisfied that the contention is without
merit.
There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) of the Act by telling an employee that applicants
for employment could not be affiliated with the Union, or to the judge’s
finding that the Respondent violated Sec. (8)(a)(3) by suspending em-
ployee Anthony Angelucci, sending him home early from work, issuing
him warnings and discharging him, all because of his activities on
behalf of the Union.
2 We will modify the judge’s recommended Order in accordance
with Ferguson Electric Co., 335 NLRB 142 (2001), and we will substi-
tute a new notice in accordance with Ishikawa Gasket American, Inc.,
337 NLRB 175 (2001).
We leave to compliance the issue of whether the discriminatees
would have been transferred to other jobs upon the completion of the
job to which they would have been assigned but for the Respondent’s
refusal to hire them.
“(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including any
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
2. Substitute the attached notice for that of the admin-
istrative judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT tell our employees that job applicants for
employment having an affiliation with the Union, Inter-
national Brotherhood of Electrical Workers, Local Union
98, AFL–CIO, or any other labor organization, will not
be hired.
WE WILL NOT refuse to hire applicants for employment
because they are members of or are affiliated with a un-
ion.
WE WILL NOT suspend employees, send employees
home early from work, issue employees disciplinary
warnings, or discharge employees because of their mem-
bership in or activities on behalf of the Union.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Relations Act.
WE WILL, within 14 days of the Board’s Order, offer
William Corazo, Raymond Della Vella, Robert Poston,
and John Pritchard employment to positions for which
they applied or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
341 NLRB No. 107
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 736
iority or any other rights or privileges previously enjoyed
absent the discrimination against them.
WE WILL make William Corazo, Raymond Della Vella,
Robert Poston, and John Pritchard whole for any loss of
earnings and other benefits suffered as a result of our
unlawful refusal to hire them, less any new interim earn-
ings, plus interest.
WE WILL, within 14 days of the date of the Board’s Or-
der, offer Anthony Angelucci full reinstatement to his
former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Anthony Angelucci whole for any loss
of earnings and other benefits he may have suffered re-
sulting from his unlawful suspension, his early dismissal
from work, and his unlawful discharge, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to our
unlawful refusal to hire William Corazo, Raymond Della
Vella, Robert Poston, and John Pritchard, and all refer-
ences to Anthony Angelucci’s unlawful suspension, to
his unlawful early dismissal, to the unlawful warnings
issued him, and to his unlawful discharge, and WE WILL,
within 3 days thereafter, notify the above employees in
writing that this has been done and that this unlawful
conduct will not be used against them in any way.
NETWORK DYNAMICS CABLING, INC.
Deena E. Kobell and Wendy B. Silver, Esqs., for the General
Counsel.
Christopher J. Murphy, Esq., for the Respondent.
Richard C. McNeil Jr., Esq., for the Charging Party.
DECISION
GEORGE ALEMÁN, Administrative Law Judge. Pursuant to
separate unfair labor practice charges filed by International
Brotherhood of Electrical Workers, Local Union 98, AFL–CIO
(the Union), the Regional Director for Region 4 of the National
Labor Relations Board (the Board) on July 19, 2000, issued a
consolidated complaint and notice of hearing alleging that
Network Dynamics Cabling, Inc. (the Respondent or NDC) had
violated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act).1
Specifically, the consolidated complaint, as amended at the
hearing, alleges, inter alia, that the Respondent violated Section
8(a)(1) by telling an employee that it was looking for job appli-
cants that were not affiliated with a union, and violated Section
8(a)(3) by failing and refusing to hire or consider for hire job
applicants William Corazo, Raymond Della Vella, Robert

1 The July 19, 2000 consolidated complaint was received into evi-
dence as GC Exh. 1(jj).
Poston, and John Pritchard because of their union affiliation.2
The complaint further alleges that the Respondent violated
Section 8(a)(3) and (1) by taking disciplining and thereafter
terminating employee Anthony Angelucci for his union activi-
ties.3 The Respondent filed a timely answer to the complaint
denying that it had violated the Act.
A hearing on the above allegations was held in Philadelphia,
Pennsylvania, from November 6–9, 2000, at which all parties
were afforded a full opportunity to appear, to call and examine
witnesses, to submit oral as well as written evidence, and to
argue orally on the record. On the basis of the entire record in
this proceeding, including my observation of the demeanor of
the witnesses, and after considering the briefs filed by the Gen-
eral Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Pennsylvania corporation with its princi-
pal facility in West Chester, Pennsylvania, is engaged in the
installation of low voltage telecommunications cabling. During
the year preceding issuance of the complaint, a representative
period, the Respondent, in the conduct of its business opera-
tions, performed services valued in excess of $50,000 outside
the Commonwealth of Pennsylvania. The complaint alleges,
the Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As of the hearing date, Respondent employed 120 employees
nationwide, 35 of whom worked at its West Chester facility.
Mark Stout serves as its current president, having apparently
replaced one Rob DesRuisseaux. Todd Stevenson serves as
Respondent’s director of operations, and Paul Moore and David
Maston as senior project managers.4 All are admitted supervi-
sors under the Act. The record reflects that in the fall of 1996,
the Union began an effort to organize Respondent’s employees.
Thus, during that period, Union Representative Ed Coppinger
sought unsuccessfully to have DesRuisseaux sign a collective-
bargaining agreement with the Union.
Alleged discriminatee Poston had been a dues paying mem-
ber of Local 98 from 1993 until 1995, at which point he began
collecting a union pension on reaching 62 years of age. Since
then, Poston has not paid any union dues. Despite receiving a
pension, Poston testified he continued looking for work because
2 At the start of the hearing, the parties entered into several settle-
ment agreements resolving other allegations in the complaint. See Jt.
Exhs. 1(a)–1(e).
3 The complaint was amended at the hearing to allege that the Re-
spondent further violated Sec. 8(a)(3) and (1) by issuing two discipli-
nary writeups to Angelucci on May 5, 1999 (Tr. 19). Over the Respon-
dent's objection, the General Counsel was permitted to further amend
the complaint to include an additional remedy (see GC Exh. 2).
4 Maston, at the time of the unlawful conduct alleged in the com-
plaint, served as operations manager.
NETWORK DYNAMICS CABLING, INC. 737
he likes to keep himself active. In July 1997, Poston attended a
job fair and obtained employment through Aerotek, Inc., an
admitted joint employer with Respondent, at the latter’s jobsite
in Beaver College, Pennsylvania.
On or about August 8, 1997, Poston and union member, John
Kosovan, engaged in picketing during their own time at the
Beaver College jobsite in an effort to organize the Respondent.
Poston explained that he engaged in picketing activity to protest
the low salary he was getting, and to obtain a $2 per hour pay
increase. On reporting for work at their regular scheduled time
that day, NDC project manager, Bruce Osborn, Poston’s super-
visor, informed Poston and Kosovan they were let go because
of their activities on behalf of the Union. On August 13,
Poston was reinstated at the Beaver College jobsite, and on the
following day, August 14, again engaged in picketing at the
jobsite during his nonwork hours. On reporting to work on
August 14, Poston was again terminated for his union activi-
ties.5 Poston testified, without contradiction, that following his
last termination, Osborn told him he had been one of his best
workers.
On November 12, 1997, Respondent placed an ad in the
“Delaware Daily Local News” seeking entry-level technicians
for various projects it anticipated working on in the near future,
including an Austin, Texas job it expected to receive and begin
working on in late February 1998, from its major client, First-
USA, a national credit card issuer.6 A document prepared by
Respondent and received into evidence as General Counsel
Exhibit 3 contains a list of numerous help wanted ads placed by
Respondent in local newspapers between 1996 and 1999.7 At
the hearing, Maston, who has worked for Respondent for 8
years, testified that while the Respondent will at times advertise
for workers, it nevertheless has long maintained a hiring prac-
tice of first asking its current employees for referrals. Employ-
ees who successfully referred other employees for hire, Maston
claims, were paid a $250 incentive bonus for the referral. (Tr.
369.) He claims that on occasions when Respondent needed to
hire, he would routinely circulate a memo to employees asking
for referrals. If that proved unsuccessful, Respondent would
then ask the local trade schools for referrals. Only when it was
unable to meet its hiring demand via these two sources would
the Respondent, according to Maston, resort to placing a help
wanted ad in a local newspaper.
At the hearing, the General Counsel produced a signed
statement submitted by Maston to the Board on May 18, 1998,
in response to the refusal-to-hire allegation wherein Maston
describes Respondent’s hiring practice as consisting of “[plac-
ing] an ad in the newspaper and waiting for responses.” No-
where in his signed declaration to the Board does Maston men-

5 See all-party stipulation received into evidence as Jt. Exh. 2A.
6 Maston testified that the Austin job “started off slowly” on Febru-
ary 22, 1998, and did not pick up and level off until mid-March. (Tr.
391.)
7 The Respondent admits that GC Exh. 33 is an incomplete list as it
did not retain actual copies of all the ads run during that period. It
further admits that the list represents only its recollection of which ads
were placed and when they were run, and that it may indeed have run
more ads than shown in the list. One such ad placed in March 1998,
discussed infra, is not listed in GC Exh. 33.
tion the above-described employee-referral policy as Respon-
dent’s primary recruitment method. Maston, at the hearing,
admitted to an inconsistency between his testimony and the
statement contained in his signed declaration, and sought to
explain it away by claiming that the statement he gave the
Board was false, that it had been prepared for him in advance
by NDC’s then attorney, Randall Schauer, and that he signed
and allowed it to be submitted to the Board despite knowing of
its alleged inaccuracies because he had been instructed by
NDC’s owner to do whatever the attorney asked him to do.
(Tr. 369–370; 401.)
I found Maston’s testimony in this regard wholly unbeliev-
able. Neither the NDC owner who purportedly instructed Mas-
ton to blindly follow attorney Schauer’s instructions, nor attor-
ney Schauer himself, was called to corroborate, deny, or ex-
plain Maston’s account. I am, in any event, convinced that had
they been called, neither the NDC owner nor Schauer would
have corroborated, and indeed would more likely than not have
disavowed, Maston’s rather audacious claim that they in-
structed him to sign and submit to the Board what Maston
claims is a false declaration. I find that Maston was not being
truthful at the hearing in asserting that the Respondent relies on
employee and trade school referrals as its primary hiring
source. While I do not doubt that the Respondent may on occa-
sion hire individuals referred to it by other employees, as oc-
curred with the hiring of employee Anthony Angelucci (dis-
cussed below), I nevertheless find that, as described by Maston
in his May 18, 1998 signed statement to the Board, the help-
wanted ads it places in local newspapers, not employee refer-
rals, constitutes Respondent’s primary hiring source. In this
regard, I reject as without merit Maston’s claim at the hearing
that the contrary statements found in his signed declaration to
the Board are false. Rather, I am convinced that it was Mas-
ton’s testimony at the hearing, not the averments made by him
in the signed statement, which was false and which, I find, he
intentionally tailored to fit Respondent’s defense to the refusal-
to-hire allegation. My finding that newspaper ads, not em-
ployee referrals, was Respondent’s primary hiring source is
bolstered by the testimony of alleged discriminatee Della Vella,
and union members Thomas Castaldi and Robert McKay, who
testified that they were told by an NDC receptionist and by
Stevenson during a March 1999 visit to NDC’s office, that
NDC’s method of hiring is to advertise for workers in local
newspapers (see discussion below). In sum, I find that Maston
lied at the hearing regarding Respondent’s actual hiring prac-
tice, and consequently reject as not credible his claim that he
was somehow pressured or instructed by an NDC owner and by
its former counsel, Schauer, to submit a false written declara-
tion to the Board. Maston’s willingness to fabricate his testi-
mony on this matter undermines, in my view, his entire testi-
mony in this case.
Regarding the November 1997 hiring, Maston claims he ad-
hered to the “employee referral” practice in attempting to ob-
tain workers. Thus, he testified that before placing the Novem-
ber 1997 ad, he first circulated a memo to employees asking for
referrals, and then contacted the trade schools, both of which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 738
proved unsuccessful. (Tr. 381.) Maston’s purported memo to
employees was not produced at the hearing.8
NDC hired at least three individuals—Anthony Juliano, Mi-
chael Kennedy, Christian Thwaites—who responded to the ad.9
Juliano faxed his resume to Respondent on November 17, 1997,
was interviewed and hired by Maston on November 25, 1997,
and began work on December 1, 1997. Kennedy faxed his
resume on November 18, 1997, was interviewed on December
3, 1997, by Maston and NDC Senior Project Manager Paul
Moore, offered employment following the interview, and began
working for Respondent on December 8, 1997. Thwaites faxed
his resume to Respondent on November 24, 1997, was inter-
viewed and hired by Maston on November 26, 1997, and began
working on December 1, 1997. At the time of their hire, the
Respondent was unaware that all three were members of the
Union. (Jt. Exh. 4B.)
In January 1998,10 Coppinger again sought to persuade Des-
Ruisseaux to sign a collective-bargaining agreement with the
Union. DesRuisseaux promised to get back to him. Not having
heard from DesRuisseaux, Coppinger, on February 26, sent
DesRuissieaux a letter with a copy of the proposed agreement.
On March 2, DesRussieaux responded that he was not inter-
ested in signing any union agreement.
In February, the Union stepped up its efforts to organize Re-
spondent’s employees. On February 20, Coppinger sent a mail-
ing to NDC employees generally comparing the benefits they

8 During its cross-examination of Maston, Respondent’s counsel
produced an interoffice memo purportedly sent by Stevenson to em-
ployees on May 21, 1999, asking for referrals, for the purpose of cor-
roborating Maston’s testimony regarding NDC’s alleged adherence to a
practice of relying on employee referrals to obtain workers. (See re-
jected R. Exh. 11.) The General Counsel objected to the production
and introduction into evidence of the Stevenson memo on grounds that
the document had been subpoenaed by her, but not turned over by
Respondent, prior to the hearing, and should, therefore, be excluded
under Bannon Mills, 146 NLRB 611 (1964). I agreed with the General
Counsel and denied the Respondent’s use of the document to question
Maston and to have it introduced as evidence in this proceeding. Ste-
venson’s memo would not, in any event, have corroborated Maston’s
claim that he distributed a memo to employees in November 1997 for
Stevenson’s interoffice memo was purportedly prepared in connection
with hiring that was to occur at some point after May 21, 1999, a year
and a half after Maston’s November 1997 hiring. Respondent could
have, but, as noted, did not, produce the memo Maston claims he dis-
tributed to employees in connection with the November 1997 hiring.
No claim has been made here by the Respondent that the memo was
either lost, destroyed, or otherwise unavailable for production. The
only evidence regarding the availability of the memos came from Mas-
ton, who testified only that he was not sure whether or not the memos
had been retained. In the absence of any explanation for its nonproduc-
tion, I draw an adverse inference and find that Maston never prepared
or circulated any such letter to employees asking for referrals, and that
he was being untruthful in asserting that he had in order to bolster Re-
spondent’s defense to the refusal-to-hire allegation.
9 Juliano, Kennedy, and Thwaites were actually covert “salts” for the
Union. The term “salt” refers to a union member who seeks employ-
ment with a nonunion company in order to organize it from within.
The Union has two types of “salts,” e.g., the overt “salt” who willingly
reveals his or her union affiliation when applying for work with the
nonunion company, and the covert “salt” who does not.
10 All dates hereinafter are in 1998, unless otherwise indicated.
were receiving with those received by employees under its
collective-bargaining agreements, and encouraging employees
to contact him. (R. Exh. 2.) In response, the Respondent, as
shown by facts contained in several all-party stipulations, en-
gaged in efforts of its own to thwart the Union’s efforts and to
ascertain who the union supporters were.
The undisputed facts show that Juliano was the recipient of
much of Respondent’s antiunion activity.11 On February 17,
for example, NDC’s project manager at the Easton Hospital
jobsite, John Czyzewski, made several union-related statements
to Juliano. Czyzewski that day asked Juliano if he had received
a letter from the Union, and during another conversation with
Juliano at the Lonestar Steakhouse in Easton, Pennsylvania,
told Juliano that if employees selected the Union as their bar-
gaining representative, he (Czyzewski) and other employees
were going to start a new company, that a lot of NDC employ-
ees would be laid off because Respondent would not be able to
competitively bid for jobs, and that he, Juliano, would be laid
off because he did not have enough experience in the field.
Czyzewski also urged Juliano to vote against the Union if an
election were held.
On February 23, Czyzewski again questioned Juliano on
several occasions about the Union. Thus, it is undisputed that
Czyzewski asked Juliano if he had received a new letter from
the Union, whether he was “the guy working for Local 98,” and
if he had been on the phone talking to Coppinger. (Jt. Exh.
2B.) On March 3, NDC’s project manager at a Burger King
Restaurant jobsite, Greg Brown, told Juliano and four other
NDC employees that he believed NDC employee, Doug Thor-
ton, was the Union’s organizer at NDC. On March 12, the
Union notified the Respondent in writing of Juliano’s status as
union organizer. The following day, the Respondent distrib-
uted copies of the Union’s March 12, letter to its employees via
the employee mailbox.
On March 16, Juliano, during his nonworking hours, assisted
union organizers and alleged discriminatees, Della Vella and
Corazo, distributed union literature at Respondent’s First USA
jobsite in Wilmington, Delaware. At one point, NDC’s project
manager at the site, Mark Bianco, told Juliano to “get the hell
out of there.” Juliano responded that he was acting with other
employees for their mutual aid and protection, and repeated the
same refrain when Bianco asked how much the Union was
paying him for his activities. Bianco then threatened to “ring”
Juliano’s neck, commenting that he wanted to go outside and
“get” Juliano. Bianco further told NDC employees that Re-
spondent would give $100 to “Bill the electrician” to go outside
and stomp on the union handbillers. Bianco then commented to
the employees that “there were many ways NDC could get rid
of Juliano, including writing him up for everything including
latenesses.”
Following his March 16 handbilling activities, Juliano re-
turned to work but arrived 4 minutes late. He was then issued a
written warning by Maston for lateness. Another employee,
Dan Pearson, who arrived late that same day, also received a
11 A settlement agreement entered into by the parties resolving alle-
gations of unfair labor practices directed at Juliano was received into
evidence as Jt. Exhs. 1A and 1B.
NETWORK DYNAMICS CABLING, INC. 739
written warning. Respondent stipulated that it gave Juliano the
warning because he engaged in the handbilling activity and had
otherwise assisted and supported the Union, and that it issued
the warning to Pearson in order to justify Juliano’s warning.
(Jt. Exh. 2C.) Later that day, Czyzewski received a call from
Bianco, and as he was heading out to go to the Easton jobsite,
Czyzewski said to Juliano, “I heard you had a busy morning.”
Later that evening, Czyzewski told Juliano, “I know you will be
talking to Della Vella; tell him not to—(expletive deleted) call
me anymore.” At some point that same evening, Czyzewski
pulled Juliano aside and said, “I respect what you are doing, but
I have my job to do and Bianco called me is irate about this
morning.” (Jt. Exh. 2C.)
The next day, March 16, Juliano again joined Della Vella
and Corazo in their handbilling activities, but this time at the
Easton Hospital jobsite. When he reported to work later that
day, Czyzewski told Juliano that he was out of his mind for
what he was doing, and commented that if the union representa-
tives entered the hospital, he would have them escorted out. As
Juliano followed Czyzewski to the jobsite, Czyzewski stopped
him. When Juliano asked if he was being terminated,
Czyzewski stated he was not, but that he was going to meet
with hospital officials to discuss Juliano’s handbilling activities
that morning.
Some 10 minutes later, Czyzewski returned to the work area
and began screaming at Juliano that he had gone too far and
that he, Czyzewski, was ready to snap. Two employees who
witnessed Czyzewski’s remarks told Juliano that he, Juliano,
was taking food off their tables because of his union activities.
Czyzewski then stated he was not going to deal with Juliano
and his handbilling anymore, and directed him to pack up his
tools because Czyzewski was going to let the shop deal with
Juliano from then on. Czyzewski escorted Juliano to the eleva-
tor door and asked him to leave.
Juliano called the shop and spoke to Maston. He told Mas-
ton he wanted to work but that Czyzewski did not want him
working at the Easton jobsite. Maston agreed to speak with
Czyzewski about the matter. Juliano called Maston again a
short while later, but was told by Maston that Czyzewski did
not need him at the Easton jobsite anymore, to go back to the
hotel and pack his things, and drive back to Respondent’s West
Chester facility. Juliano did just that, arriving at the shop
around 3 p.m. When he got there, Maston told Juliano he ex-
pected him back at the shop much sooner, and proceeded to
issue him a written warning for arriving late.
Maston then assigned Juliano to perform patch cable work,
something Juliano had not done before, with specific instruc-
tions that he was to produce one patch cable every 4 minutes.
At the end of his shift, Maston told Juliano that he would
document the latter’s performance from then on, and that his
start time would henceforth be 8 a.m., rather than 7:30 a.m., the
regular start time for other technicians.
On March 18, Maston and NDC Purchasing Manager Scott
Adams reviewed Juliano’s work and at the end of the day asked
him to sign a document that tracked his performance that day,
something he had never before been asked to do. Also, that
same day, DesRuisseaux told Juliano that he had removed Juli-
ano off the Easton jobsite because he had “pissed off a lot of
guys” at that site.
On March 23, DesRuisseaux held an employee meeting dur-
ing which he told employees that he wanted his company to
remain nonunion, and that if employees voted for the Union,
they could all be laid off. He further told employees that with-
out a union, complaints could be brought directly to him. Des
Ruisseaux also passed out literature during the meeting explain-
ing that once they voted the Union in, decertifying it would be
difficult. The literature was collected from employees at the
end of the meeting.
Later that morning, Juliano, wearing a T-shirt to work with
the words “Union Yes” and union logo on it, asked Maston if
he could take a half day off the following day. When Maston
asked if it was important for him to take the time off, Juliano
stated it was, and that he wanted the time off to express his
First Amendment rights. Maston replied he would get back to
him. Later that afternoon, Maston instructed Juliano to wear an
NDC T-Shirt to work from then on. It is undisputed that Juli-
ano and other employees had on previous occasions worn non-
NDC T-shirts without incident. He also told Juliano that his
request for time off was being denied because he was behind in
his work. Maston also handed a document for Juliano to sign
stating that if he made his quota of patch cable, NDC would
consider his request for time off provided he gave 48 hours
notice. Juliano was asked to and did sign the document. Re-
spondent maintained no policy requiring 48 hours notice before
requesting time off.
On March 24, Juliano did not report to work or call in to say
he would not be in. Instead, he went to the First USA jobsite
where he was observed engaging in union handbilling by Ad-
ams and NDC vice president, Mark Stout. At around 12:25
p.m. reported for work, at which point DesRuisseaux and Mas-
ton notified him he was being terminated for insubordination as
he had failed to report for work that morning following the
denial of his request for time off.
On March 26, Bianco told two employees at the First USA
jobsite that Maston had set up Juliano with a contract entitling
him to have a personal day off provided his work was up to par
in order to fire him. That same morning, Bianco told three
other employees that he had a friend in the towing business and
that he would like to find out what kind of cars Della Vella and
Juliano drove so that he could have their cars towed. He further
stated that Juliano was getting on his nerves and that he wanted
to rip out his spine, and threatened to take his truck and run
Juliano and the other union representatives over and “take them
all out.”
In early April, Juliano engaged in further handbilling at the
First USA jobsite. It is undisputed that Bianco observed him
doing so and commented to three employees that he wanted to
go outside and hit Juliano over the head with a crowbar.
Thwaites testified that on April 9, he had a conversation with
Moore at NDC’s warehouse on a variety of matters, including a
job he had just done in Princeton, New Jersey, that day. He
claims that at one point during this conversation, Moore asked
him if he knew anyone that was looking for work, but that the
individual could not be affiliated with the Union. He purport-
edly further commented that Juliano “was a fool,” and that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 740
Union “was just using him.” Thwaites claims he didn’t respond
to Moore’s comments and simply agreed with him because he
didn’t want Moore to learn that he too was helping the Union in
its organizing efforts.
Asked generally by Respondent’s counsel if he ever told an
employee that NDC was looking for employees but that they
had to be nonunion, Moore, at first, emphatically denied mak-
ing any such remark. However, when asked the same question
by the Charging Party’s attorney, Moore waivered in his an-
swer and stated only that he did not recall ever having made
such a statement. Moore, it should be noted, did not deny hav-
ing a conversation with Thwaites on April 9, or telling
Thwaites that Juliano was a fool who was being used by the
Union. I reject Moore’s ambiguous denial and, instead, credit
Thwaites and find that Moore made the April 9, statements
attributed to him by Thwaites. Moore’s remarks, it should be
noted, implicitly suggest that the Respondent was seeking
workers.
On April 20, Bianco asked two employees if they had re-
ceived any phone calls from the Union. He then remarked that
he would like to have Della Vella’s home phone number so he
harass him by calling and then hanging up, and if that didn’t
work, he would call and click his .38 caliber revolver into the
phone and ask Della Vella if he knew who it was. If that did
not work, he would call and click his shotgun into the phone to
ensure that Della Vella got the message. (Jt. Exh. 3F.)
In early March, Respondent placed a blind ad in the Dela-
ware Daily Local News, that ran through March 8,12 seeking
entry-level technicians with “good communications skills” who
were “mechanically inclined.” Maston explained that he ran
the ad after an unsuccessful attempt to obtain workers through
employee referrals, and that Respondent planned on hiring
“approximately 6 to 8 new employees” to cover several First
USA projects in Plano, Texas, Orlando, Florida, and in Wester-
ville and Kettering, Ohio, it expected to begin working on in
late March and early April. NDC, it should be noted, was al-
ready working on projects for other clients when the ad was
placed in early March. (Tr. 391; 407.) As with the November
ad, the Respondent did not produce any memo from Maston to
employees soliciting referrals. Accordingly, I find that no such
memo was prepared.
On March 8, Coppinger responded to the ad by sending a let-
ter on union stationary to the ad’s P.O. address containing the
name, phone number, and address of alleged discriminatees
Della Vella, Corazo, Poston, and Pritchard, and stating that all
four were willing to work at the entry-level wage. Coppinger
also faxed a copy of the letter to the Respondent on March 9.
On March 10, Della Vella and Corazo called NDC and spoke to
Office Manager Patricia Barbo, who admitted receiving Cop-
pinger’s fax, and told both “that to be considered for the posi-
tions each applicant needed to submit a resume to NDC by
March 13.” (Jt. Exh. 5A.) In response to their inquiry of

12 The record is somewhat conflicting on when precisely the ad was
placed. Thus, Jt. Exh. 6A shows the March ad as having been placed
on the internet and in newspaper versions of the Delaware Daily Local
News on March 8, while Jt. Exh. 5A states that NDC ran a blind ad “on
or about March 1 through 8.”
whether they could submit applications instead of resumes,
Barbo responded, “Yes,” and, in further response to Della
Vella’s inquiry, told him he could bring the job applications for
the other individuals named in Coppinger’s letter.
On March 11, Della Vella and Corazo visited Respondent’s
office and turned in applications for themselves and for Poston
and Pritchard to Maston. At the time, both were wearing union
jackets. The job applications identified all four as union mem-
bers. After handing Maston the applications, Maston told them
he would “take care of it,” and then commented that he liked
their jackets. Della Vella replied that “he had plenty more, one
for each of his men.” While not denying being present when
Della Vella and Corazo showed up on March 11, to turn in their
applications, Maston at the hearing denied that the applications
were handed directly to him, stating, “I don’t believe it was
myself that accepted them, but I think somebody in our office
did take those applications.” His testimony in this regard, how-
ever, conflicts with the Respondent’s admission at paragraph 4
of the all-party stipulation contained in Jt. Exh. 5A, reflecting
that Maston was indeed handed and accepted the applications
from Della Vella and Corazo, while commenting that he
“would take care of it.”
Between March 2 and March 16, the Respondent received
some 26 resumes in response to the March ad (see GC Exh.
27.) Maston testified that as the resumes and applications came
in, he placed them in a file and reviewed them a few days later
to ascertain, based on the experience contained in the resumes
or applications, which of the applicants he should call. He
claims that over-qualification of an applicant “was really the
big factor” and that those he deemed to be overqualified for the
entry-level positions generally would not be called. He ex-
plained that NDC preferred not to hire experienced applicants
for said positions because they often brought with them poor
work habits picked up while working for other employers re-
quiring that they be “detrained,” whereas applicants with no
experience needed no such retraining. Following review of an
applicant’s qualifications, Maston would call and discuss the
job and salary requirements with the applicant and would then
schedule the applicant for an interview if the terms of employ-
ment were acceptable. (Tr. 410–411.)
In the evening of March 11, Maston called 14 of the appli-
cants whose resumes had been received and reviewed by him
prior thereto.13 Of those he called, some indicated they were
no longer interested in a position, others found the $750-$950
salary range quoted by Maston too low, and a few agreed to
interviews with Maston which were scheduled for March 17.14
13 Maston testified that he placed his calls to the applicants at night
because oftentimes he could not reach them during the day as they
would either be working or otherwise unavailable to take his calls.
14 A “reply by March 30” notation on the resume of one applicant,
Bernard Taraschi, suggests that Maston offered him employment.
Although admitting that he interviewed Taraschi on March 17, Maston
was uncertain if he offered Taraschi a position, but could not explain
what the notation meant. Maston’s testimony in this regard was simply
not credible. I am convinced that the notation does reflect that Maston
offered Taraschi a job following his interview, and that Maston’s sud-
den lapse in memory as to the meaning of his “reply by March 30”
notation was an attempt by Maston to avoid admitting that he was, in
NETWORK DYNAMICS CABLING, INC. 741
Maston explained that the other applicants, including Della
Vella, Corazo, Poston, and Pritchard, were not called because
he “probably didn’t get [their resumes or applications] before I
had time to prepare my initial calling of the ones” he did call.
Maston admits he never reviewed the applications submitted to
him by Della Vella, Corazo, Poston, or Pritchard on the morn-
ing of March 11.
Della Vella testified, without contradiction, that he called
NDC several times after submitting his application to inquire
about its status, and was told each time by Barbo, “We’re look-
ing into it; we’ll get back to you; we’ll let you know.” (Tr.
150.) Barbo did not testify. I credit Della Vella. Corazo like-
wise testified, credibly and without contradiction, that he re-
peatedly called NDC to inquire about his job application and
was told that no one was available to speak with him at the time
and to leave his name and phone number and someone would
return his call. Poston testified he called Maston on April 1,
and again on April 3, to inquire about his application, and left
Maston a voice mail stating he had sent in a resume and was
looking for work. He claims that Maston returned his April 3,
call and that, when Poston told him he was looking for work,
Maston told him all positions had been filled and that he would
keep Poston in mind. Maston did not recall having any such
conversation with Poston. (Tr. 243, 414.) I credit Poston and
find that Maston on April 3, told Poston that all positions had
already been filled.
On May 5, Coppinger sent NDC a letter stating that Della
Vella, Corazo, Pritchard, and Poston had applied for work on or
before March 8, were still interested in employment and were
available for immediate interviews, and would accept employ-
ment at the wage and benefits standards offered by NDC. He
sent an identical letter to NDC on June 23. (GC Exhs. 13, 14).
The Respondent did not respond to either letter.15
Maston testified that after placing the ad, Respondent’s im-
mediate need for additional workers “disappeared” when the
various First USA projects it expected to begin working on in
late March and early April were delayed or pushed back several
months. As a result, the Respondent, Maston claims, opted not
to hire anyone at that time, including those who had responded
to the March ad. The Respondent, instead, according to Mas-
ton, delayed hiring until the projects fully got under way some-
time around October, and that when it did begin hiring, it did so
by hiring workers through its purported employee referral pol-
icy. Stevenson also claims that employees hired after the

fact, engaged in a hiring process following receipt of the March appli-
cations. The record does not reveal what became of Taraschi. Maston
also schedlued applicant Gustav Hoecht for a March 17, interview, but
a “No show-no call” notation indicates that Hoecht never appeared for
the interview. (see GC Exh. 27). Unlike his “reply by March 30”
notation on Taraschi’s resume, Maston had no difficulty explaining the
meaning of the “no show-no call” notation on Hoecht’s resume.
15 The May 5, and June 23, letters are not entirely accurate, for the
letter sent by Coppinger to NDC in March, asking that Della Vella,
Corazo, Pritchard, and Poston be considered for the entry level posi-
tions advertised in the March 1, ad, is dated March 9, and presumably
could not have been sent on or before March 8, as claimed by Cop-
pinger in his May and June letters.
March ad came from referrals and trade schools. (Tr. 399; 578,
612.)16
Alleged discriminatee Angelucci was hired by Respondent in
mid-August.17 Angelucci testified prior to being hired, he was
interviewed by Thornton and Stout. He recalls that after Thorn-
ton handed him the application to fill out, Stout asked him,
“You’re not one of the f___king union guys, are you?” Ange-
lucci truthfully answered that he was not,18 and Stout then said
“OK,” proceeded to explain the type of work done at NDC, and
then instructed him to fill out the application and return it when
he was finished.19 On August 22, Angelucci began working for
Respondent as a cable technician. On April 20, 1999, Ange-
lucci joined the Union and thereafter assisted the Union in its
organizational activities by handbilling at different NDC job-
sites, including its Philadelphia Suburban Water Co. and “Sig-
16 A list of individuals hired following placement of the March ad is
found in Jt. Exh. 4B. Thus, that list shows that the Respondent hired
three individuals in April, one in May, one in June, two in July, two in
August, two in September, and six in October. According to Maston,
the first twelve individuals shown on the list as having been hired be-
tween April 13, and October 6, were hired using Respondent’s pur-
ported employee referral policy, and were hired based on referrals
either from an NDC employee or supervisor, or by a local trade school.
(Tr. 416–418). I found Maston’s testimony in this regard unconvincing.
While there is no hard evidence to refute Maston’s claim in this regard,
there is likewise no credible evidence to corroborate it. One sure way
the Respondent could have corroborated Maston’s testimony was by
producing, either through payroll records or via testimonial evidence,
proof that it had paid those employees who successfully referred appli-
cants to it the $250 incentive bonus Maston claims had been Respon-
dent’s customary practice during his 8-year tenure with NDC. No such
evidence, however, was produced, leading me to believe that either no
such payments were ever made and Maston simply lied about the exis-
tence of such a practice, or the Respondent did not hire any individuals
from employee referrals, again undercutting Maston’s claim in this
regard. Indeed, Maston himself seemed unsure on precisely how all the
employees hired after April 13, came to be hired. Thus, when asked
what procedures he had used to hire employees, Maston replied, “I
would just say the normal procedures that we always used, which was
the referral being the first thing. I don’t think that we hired anybody
from an ad after that. I don’t recall.” (Tr. 399–400.) Maston’s rather
ambiguous testimony in this regard, coupled with what I find to have
been his overall lack of candor in other areas of his testimony and his
willingness to fabricate testimony, and the fact that the Respondent’s
primary hiring method was through newspaper ads and not through
referrals, leads me to reject his and Stevenson’s uncorroborated claim
that all employees hired on April 13, and thereafter were obtained
through referrals from its own employees and supervisors, and from
trade schools.
17 Angelucci, it should be noted, was hired by way of a referral from
his friend and NDC supervisor, Doug Thornton. The fact that Ange-
lucci came to be hired by way of a referral does not, in my view, estab-
lish that this was Respondent’s usual practice. Rather, I am convinced
that while the Respondent may have occasionally hired someone re-
ferred to it by another employee or supervisor, its primary hiring
method was through newspaper ads.
18 Angelucci became a Union member on or about April 20, 1999.
19 Thornton was not called as a witness, and while Stout did testify,
he was not asked to confirm or deny the remarks attributed to him by
Angelucci during the interview. Accordingly, I credit Angelucci.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 742
nal” jobsites,20 and by discussing the Union with employees
before and after work, and during his lunchbreak. Also, on
April 20, Coppinger sent Respondent, and the latter admits
receiving, a letter advising it of Angelucci’s status as a union
organizer, and stating that Angelucci would be engaging in
organizing activities during nonworking hours (GC Exh. 15; R.
Br.33).
On April 28, Angelucci, Foreman Dave Bower, and em-
ployee Mike Polito were working at Respondent’s Signal job-
site. Angelucci testified that at around 11:30 a.m., Bower
asked Angelucci if he would stay on the job while he (Bower)
and Polito took their lunchbreak, and that Angelucci could take
his lunchbreak when they returned. Angelucci agreed and con-
tinued working. When Polito and Bower returned, Angelucci
took his lunchbreak and, during that break, engaged in handbill-
ing activity. Soon thereafter, a Liberty Property management
agent approached and asked to see a copy of the handbill. On
reviewing it, the Liberty agent told Angelucci he could not
distribute the literature at the premises and would have to leave.
Angelucci replied that he was working with Polito and Bower
at the jobsite and was merely exercising his first amendment
rights. A short while later, the Liberty agent showed the hand-
bill to Bower. Bower became angry at Angelucci and re-
marked, “What the ‘F’ was I doing this to him for?” and stated,
“That’s it, I’ve got to call Todd [Stevenson].” Bower appar-
ently called Stevenson and soon thereafter told Angelucci that
Stevenson wanted to see him in his office right away. Neither
Bower, Polito, nor the Liberty management representative were
called to testify. Accordingly, I credit Angelucci’s above un-
disputed account of the incident.21
Angelucci met with Stevenson and Maston in the former’s
office about 1 hour later. According to Angelucci, Stevenson
asked him what he was doing “handing this shit out on the job-
site,” and accused Angelucci of handbilling during his working
time. Stevenson claimed at the hearing that Angelucci had
been instructed by Bower on April 28, to take his lunchbreak at
the same time he and Polito took theirs, and that Angelucci
refused to do so, conduct which Stevenson contends amounted
to insubordination.22 Angelucci told him he had a right to
handbill, and denied Stevenson’s accusation that the handbill-
ing activity had occurred during his work time, insisting instead
that he was on his lunchbreak at the time. Stevenson, Ange-
lucci claims, then stated, “Look, we know that you are working
part time as union organizer . . . for the Union,” but that be-
cause of this incident, they were going to have to let him go.

20 The Signal jobsite was at a facility owned by Liberty Property
Management Company.
21 A handwritten report of the incident, presumably prepared by
Bower, was received into evidence without objection as GC Exh. 42.
Nothing in that report contradicts Angelucci’s claim that his handbill-
ing occurred during his lunch break.
22 Stevenson did not explain how he knew that Angelucci had been
instructed to take his lunch break along with Bower and Polito.
Bower’s handwritten memo, it should be noted, makes no mention of
Angelucci having been so instructed by Bower. I seriously doubt that
had Angelucci failed to comply with such a directive from Bower, the
latter would not have made reference to Angelucci’s alleged “insubor-
dinate” behavior in his memo.
When Angelucci asked if he was being fired, Stevenson pur-
portedly responded that he was not being fired, but that looking
at the handbill, he, Stevenson, did not know if Angelucci would
be distributing union literature at other jobsites to which he was
sent. Stevenson told Angelucci to wait outside, and a short
while later purportedly told Angelucci to go home and think
about what he had done that day, and to report back to the shop
the next morning. The next day, Angelucci received a written
memo from Stevenson stating he had been suspended for a
half-day for passing out “union-related literature on private,
non-company property and on working time.” The memo cau-
tioned Angelucci that “any similar conduct in the future will
result in your immediate dismissal.” (GC Exh. 16.)
Stevenson’s testimony on why he suspended Angelucci was
confusing and contradictory. Thus, in response to questioning
by Respondent’s counsel, Stevenson claimed that he suspended
Angelucci based on a report from the property manager at the
Signal jobsite stating that Angelucci had been handbilling “on
working times and in working areas.” Asked if he would have
suspended Angelucci had the latter “been handbilling on his
own, in non-Company . . . non-work areas,” Stevenson admit-
ted that he could not have done so. Yet, the memo that Steven-
son gave to Angelucci notifying him of the suspension suggests
that Angelucci’s handbilling activity did in fact take place in a
nonwork area. Thus, the memo, as previously pointed out,
states that Angelucci was being suspended for distributing un-
ion literature “on private, non-company property.” Elsewhere
in his testimony, Stevenson, in response to questioning by the
General Counsel, asserted that he suspended Angelucci for
handbilling “during working hours and irritating clients,” but
made no mention of the activity having occurred in a “work
area.” (Tr. 556; 582.) Stevenson admits he had no first-hand
knowledge of how, when, or where Angelucci conducted his
handbilling activities on April 28. The Signal property man-
ager, Bower and Polito, all of whom purportedly served as
Stevenson’s source of information regarding this incident, were
not called to testify, leaving unsubstantiated Stevenson’s asser-
tion that Angelucci had conducted his handbilling activities
“work areas.”
Nor is there any support for Stevenson’s additional claim
that Angelucci’s handbilling occurred during work time. The
only two individuals who might have corroborated Stevenson’s
claim, Bower and Polito, as noted, did not testify. Bower’s
handwritten description of the incident likewise offers no sup-
port for Stevenson’s claim, for while Bower’s memo states that
Angelucci was observed handbilling at around 12:15 p.m., on
April 28, it does not state that Angelucci did so during his work
time or that he was not on lunchbreak when he engaged in such
activity. Indeed, Bower’s statement therein, that he and Polito
took lunch together at 11:33 a.m., and resumed work at around
12:10 p.m., appears to corroborate Angelucci’s claim that, on
instructions from Bower, he took his lunchbreak after Bower
and Polito returned from their break, e.g., at around 12:15 p.m.
In short, I accept Angelucci’s testimony and find that he was
indeed on his lunchbreak when he distributed the union litera-
ture on April 28.
A few days later, according to Angelucci, DesRuisseaux
called him to his office and, during their conversation, stated
NETWORK DYNAMICS CABLING, INC. 743
that if Angelucci thought he was going to unionize his com-
pany, “it was just never going to happen.” He then asked what
Angelucci was trying to gain out of all of this, whether it was
“money, pensions, benefits.” Angelucci shrugged his shoulders
and stated he did not know, at which point DesRuisseaux told
him that was all he had for Angelucci that day. (Tr. 302) Des-
Ruisseaux did not testify. Accordingly, I credit Angelucci and
find that DesRuisseaux made the above comment to Angelucci.
The next day, May 4, Angelucci was assigned to work at
NDC’s UPS jobsite in Willow Grove, Pennsylvania, along with
Bower and Czyzewski. During his lunch hour, Angelucci be-
gan distributing union literature and, at one point towards the
end of his lunch hour, handed a leaflet to the guard on duty at
the front gate. As he headed back to work, Angelucci noticed
Bower talking to the guard. Five minutes later, Bower ap-
proached Angelucci and, appearing frustrated, commented,
“Why do you keep doing this to me?” and handed him the
handbill Angelucci had given to the guard. Bower then in-
structed Angelucci to finish up, pack up his tools, because that
was it for the day. Angelucci testified that there remained work
to be done at the site, and that neither Bower nor Czyzewski
left the site after he was asked to leave.
On May 5, Angelucci, whose normal reporting time was 7:30
a.m., arrived about 1 hour late. He explained that his late arri-
val was due to a traffic accident he encountered on his way to
work which caused a 2-hour backup, and that other employees
showed up late to work that morning. Angelucci claims that on
arriving to work that morning, he was told he could either work
in the warehouse that day or go home, and that he decided to go
home.
Stevenson’s recollection is that when Angelucci arrived late
for work on May 5, he told the latter that other employees who
lived in the same general area as Angelucci had arrived to work
on time, and that Angelucci could have at least called to say he
would be late. According to Stevenson, Angelucci was sched-
uled to return to the Willow Grove jobsite that day, but because
all the other employees had already been sent to the site, he
“believes” he instructed Angelucci to remain in the shop and
help out employee Todd Launi at the warehouse. His testimony
on whether he gave Angelucci the option of remaining at the
facility or going home was somewhat ambiguous. Thus, asked
if he had given Angelucci such an option, Stevenson initially
could not recall if he did or not, stating in this regard, “I don’t
recall. I don’t remember if I did or not.” However, he subse-
quently added “I think—no; no; I told him to go out and help
. . . in the warehouse.” Angelucci, as it turned out, went home.
According to Stevenson, that same day, he issued Angelucci
two separate warnings, one for arriving late to work, the other
for leaving work early. (GC Exhs. 18A; 18B.)
When Angelucci reported for work the next day, Stevenson
called him aside and told he was being suspended a half-day for
leaving work early the day before. Angelucci questioned why
Stevenson was suspending him since the latter had given him
the option of working in the warehouse or going home. How-
ever, Stevenson, according to Angelucci, did not want to dis-
cuss it and simply handed him two warnings that had been pre-
pared. According to Angelucci, when Stevenson asked him to
sign the write-ups, Angelucci told him he wanted to review
them before he signed. Stevenson, however, grabbed the write-
ups from Angelucci and told him, “You won’t take them and
review them anywhere. I’ll just mark them down as a refusal to
sign, and that’s as good as your signature.”
Stevenson’s version is that when Angelucci reported for
work on May 6, he told Angelucci he was being suspended
pending further investigation for leaving work early the previ-
ous day, and that “he might as well just go home for the day,
and we would get back to him.” Following this brief conversa-
tion, Stevenson left the premises for an appointment with
NDC’s owner. About an hour later, however, Angelucci was
notified by Moore that he was being discharged.
Moore provided limited testimony regarding the discharge.
He explained that while he carried out the decision, the decision
itself was made by Stevenson. According to Moore, on May 6,
he was given a typed-written letter to give to Angelucci inform-
ing the latter of his discharge, and that he then walked over to
Angelucci, handed him the letter, and told him NDC no longer
needed his services. Angelucci, he claims, read the letter and
commented he was not leaving unless the police were called.
The letter gives the following reasons for Angelucci’s dis-
charge: “Voluntarily walking off the job when work was avail-
able” and “refusing [Stevenson’s] direction to work in the
warehouse,” an obvious reference to Angelucci’s May 5, con-
duct of leaving work early; for “reporting late for work based
on a false excuse,” a clear reference to Angelucci’s late arrival
for work on May 5; for “being suspended one half day last
week,” an apparent reference to the suspension given to Ange-
lucci for his handbilling activities at the Signal jobsite; and for
his “inappropriate and insubordinate conduct today.” (GC Exh.
19.)
Angelucci recalls that after being told by Stevenson he was
being suspended, he remained on the premises for approxi-
mately 45 minutes after which, according to Angelucci, Moore,
accompanied by Stout, approached him. Moore, he claims,
informed Angelucci he was being terminated pending investi-
gation of the handbilling incidents, and because of his late arri-
val and early departure the day before. Moore then instructed
him to leave the premises immediately or the police would be
called to have him removed. Angelucci replied that Moore
should call the police so he, Angelucci, could have some
documentation of what had occurred that day. Stout then in-
structed Barbo to call the police.
Stevenson testified that about an hour after returning to his
office following his brief discussion with Angelucci, he re-
ceived a call from Moore telling him that Angelucci was still on
the premises and was refusing to leave unless the police were
called to escort him off the premises. Stevenson claims he told
Moore, “What do you mean he’s still there? It’s [been] over an
hour since he’s been given this thing,”23 and that he instructed
Moore to have Barbo prepare a termination letter. Moore, it
should be noted, made no mention in his testimony of having
spoken at all with Stevenson before delivering the termination

23 Stevenson did not explain what “thing” he had given to Angelucci
an hour earlier. Presumably, Stevenson was referring to the written
warnings and oral notice of suspension he gave Angelucci when the
latter first reported for work that morning.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 744
letter to Angelucci. Nor does his testimony reflect that he, at
Stevenson’s directive, instructed Barbo to prepare the discharge
letter. Rather, Moore testified only to receiving the discharge
letter from someone he did not identify with instructions to
deliver it to Angelucci.
Stevenson claims that Moore then “went out and told [Ange-
lucci] that his services were no longer needed at NDC for in-
subordination and various other things” and handed him the
letter. However, Moore in his testimony never claimed to have
told Angelucci that he was being discharged for insubordina-
tion. Rather, Moore testified only that he gave the letter to
Angelucci to read, and then told him his services were no
longer needed. Angelucci’s version of the discharge conversa-
tion, while different from Moore’s, also makes no mention of
Moore citing insubordination as a reason for his discharge.
Della Vella’s March 1999 visit to NDC’s office
Della Vella testified that in March 1999, he, Castaldi,
McKay, and Union member Bobby Adams, visited Respon-
dent’s West Chester office and, once there, asked the reception-
ist, “Denise,” if they could apply for work.24 Della Vella
claims that all four of them were wearing either a Union jacket
or Union hat at the time. In response to Della Vella’s inquiry,
Denise told Della Vella to read the sign on the front of the
counter which stated that NDC was at the time not accepting
applications. Della Vella then asked how he and the others
could get a job with NDC. Denise replied that “the only way
you can get a job here at NDC is to watch the newspaper ads.
When they are hiring, they will place an ad in the newspaper.”
Della Vella then asked if this was the only way to get a job with
NDC, or whether he could obtain work at NDC via Aerotek or
some other hiring agency. Denise responded, “No, the only
way to get a job here, when we are hiring, we place an ad in the
newspaper.” According to Della Vella, during his conversation
with Denise, Stevenson showed up and reaffirmed the recep-
tionist’s remarks by stating, “that’s right, you have to keep an
eye on the newspaper.” (Tr. 154.)
Castaldi and McKay corroborated Della Vella’s above testi-
mony. Thus, Castaldi recalled Della Vella asking the recep-
tionist, “How do we apply for jobs here?”, and the latter re-
sponding, “You have to watch for an ad in the newspaper,
that’s how we hire.” The receptionist then instructed Della
Vella to read the sign on the counter. Castaldi himself did not
read the sign and could not testify as to what it said. He further
recalled someone coming out a side door, presumably Steven-
son, and telling them they could not apply there, that they “have
to do what the girl said; Look for the ad in the paper.” (Tr.
281.) McKay likewise recalls the receptionist responding to
Della Vella’s inquiry about work that “You have to look in the
paper; that’s how we do our hiring,” and that a minute or so
later, a man appeared and repeated, “We do our hiring through
the newspapers.” (Tr. 286.)
Denise, the receptionist, did not testify. Stevenson did. He
recalls Della Vella and the others showing up at the office to
apply for work. He does not claim to have been present in

24 The receptionist was identified by Stevenson as “Denise.” (Tr.
545.)
office when Della Vella first entered and asked about work, or
hearing all of the conversation Della Vella may have had with
the receptionist. He does, however, admit telling Della Vella
and the others “that they may want to look in the newspaper,
they may find something for themselves.” He claims, however,
that his remark was not intended to convey the message that
NDC advertised in newspapers for workers, and that he re-
sponded as he did because he didn’t like what he saw when he
walked in, how Della Vella and the others were treating the
receptionist. He contends that the four were being very arro-
gant towards her, and that is why he responded to them in what
he described as a “stand-offish” and “smart-aleck” manner. (Tr.
544–545.)
Stevenson’s explanation for his comment made very little
sense and is found not to be credible. First, I see no nexus be-
tween Stevenson’s claim that Della Vella was being arrogant
with the receptionist, and his statement to Della Vella and the
others that they should consider looking in the newspaper for
work. From a common sense point of view, I find it highly
unlikely that Stevenson would have responded in such a way if
he indeed was attempting to shield his receptionist from Della
Vella’s alleged arrogance. Rather, I find it more likely than not
that Stevenson, as testified to by Della Vella, Castaldi, and
McKay, was merely reaffirming what the receptionist told them
about NDC doing its hiring through newspaper ads and that
Della Vella and the others should watch the ads to see when
NDC was hiring. Accordingly, I credit Della Vella, Castaldi,
and McKay and find that when they visited NDC’s office in
March to apply for work, they were told by the receptionist
Denise and by Stevenson that it was not accepting applications
and that NDC did its hiring by placing ads in local newspapers.
B. Discussion
1. The 8(a)(1) allegation
The General Counsel contends, and I agree, that Respondent
violated Section 8(a)(1) when, on April 9, Moore asked
Thwaites for referrals but told him that the applicants could not
be affiliated with the Union.25 Moore’s remark clearly con-
veyed the message that the Respondent would not hire indi-
viduals solely because of their Union affiliation, and could
reasonably have coerced Thwaites, a covert salt, into refraining
from further engaging in organizational or other protected con-
certed activity. See, e.g., Pan American Electric, 328 NLRB
54 (1999); Quality Control Electric, 323 NLRB 238 (1997);
GM Electrics, 323 NLRB 125, 126 (1997).
2. The 8(a)(3) allegations
a. The alleged refusal to hire or to consider for hire
union applicants
The General Counsel contends, and the Respondent denies,
that NDC unlawfully refused to hire or to consider for hire
applicants Corazo, Della Vella, Poston, and Pritchard because
of their membership in, or affiliation with, the Union. In FES,
331 NLRB 9 (2000), the Board set forth the framework for
analysis of both refusal-to-hire and refusal-to-consider for hire
25 The Respondent on brief offers no defense to this allegation.
NETWORK DYNAMICS CABLING, INC. 745
allegations. In refusal-to-hire situations, the General Counsel
must show that (1) that the respondent was hiring, or had con-
crete plans to hire, at the time of the alleged unlawful conduct;
(2) that the applicants had experience or training relevant to the
announced or generally known requirements of the positions
for hire, or in the alternative, that the employer has not adhered
uniformly to such requirements, or that the requirements were
themselves pretextual or were applied as a pretext for discrimi-
nation; and (3) that antiunion animus contributed to the deci-
sion not to hire the applicants. FES, supra, slip op at 6. In a
refusal-to-consider-for-hire case, the General Counsel’s burden
is one of showing (1) that the respondent excluded applicants
from a hiring process, and (2) that antiunion animus contributed
to the decision not to consider the applicant for employment.
FES, slip op. at 8. If the General Counsel meets her initial
burden for the refusal-to-consider and/or refusal-to-hire allega-
tions, respectively, the burden shifts to the respondent to show
that it would not have considered or hired the applicants even in
the absence of their union activity or affiliation. Wright line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U. S. 989 (1982).
Regarding the refusal-to-hire allegation, the Respondent ad-
mits that alleged discriminatees Della Vella, Corazo, Poston,
and Pritchard all were fully qualified for the entry-level posi-
tions advertised in its March ad.26 It contends, however, that
when the four applied for work on March 11, it had already
made a decision not to hire any additional technicians because
the various projects it had expected to begin working on in late
March and early April were either delayed or cancelled by Fir-
stUSA. It claims that as a result of these unexpected delays, its
immediate need to hire additional workers disappeared, leading
to its decision not to continue with its hiring plans. It conse-
quently argues that because it “did not hire anyone in response
to the March 1 ad, the General Counsel cannot establish that
NDC was hiring or had concrete plans to hire in or around the
time the salts submitted applications,” requiring dismissal of
the refusal-to-hire allegation. (R. Br. 17–18.) I disagree.
While it does appear that the Respondent did not hire any of
the applicants who responded to the March ad, the weight of
the evidence, more particularly, Maston’s March 11 conduct in
calling more than half of the applicants who responded to the
March ad to ascertain their interest in working for Respondent
and to discuss their salary and work requirements, in thereafter
scheduling three applicants for interviews for March 17, and in
offering employment to applicant Taraschi following his inter-
view, establishes rather convincingly that on March 11, when
the four alleged discriminatees applied for work, the Respon-
dent did indeed have concrete plans to hire, and was about to
commence the interview and hiring process. Thus, Maston’s
actions are inconsistent with Respondent’s claim that as of
March 11, it was no longer in a hiring mode.
There are yet other factors which undermine Respondent’s
claim that it was no longer hiring as of March 11. Thus, if, as
claimed by NDC, it was no longer hiring on March 11, that
message was never conveyed by Maston to Della Vella or
Corazo when they handed him their (as well as Poston’s and

26 See, R. Br.12; Jt. Exh. 4A.
Pritchard’s) job applications. Instead, Maston, as indicated,
simply told them he would take of their applications. Nor was
any such message conveyed by Barbo to Della Vella when the
latter called to inquire on the status of his application. Rather,
Barbo, as credibly testified to by Della Vella, simply told him,
“we’re looking into it; we’ll get back to you; we’ll let you
know,” creating the distinct impression that the Respondent
was still considering applicants for hire. Moore’s April 9 re-
quest to Thwaites for referrals also establishes that the Respon-
dent was still looking for workers, but of a nonunion persua-
sion. Finally, Respondent’s hiring on April 13, of employee
Feyhl, and its continued hiring throughout the month of April
and the months that followed, makes patently clear that while it
may not have hired any of the applicants who responded to its
March ad, the Respondent nevertheless remained in need of,
and indeed continued looking for, additional workers to sup-
plement its work force. In light of these facts, I find that the
General Counsel has demonstrated that the Respondent did
indeed have definite plans to hire when the four alleged dis-
criminatees submitted applications on March 11.
Finally, there is ample evidence to support a finding that Re-
spondent’s antiunion animus was the controlling factor in Re-
spondent’s decision not to hire any of the four named discrimi-
natees. Thus, Moore’s April 9 unlawful remark to Thwaites
that Respondent would not hire applicants who were affiliated
with the Union, and the unlawful conduct and statements ad-
mitted to in the joint stipulations, provide ample evidence of
Respondent’s animosity and hostility towards the Union and its
supporters. Such evidence includes Respondent’s admission in
Jt Exh. 2 that discriminatee Poston had been terminated once
before for his union activities;27 that it threatened to close its
facility and lay off employees if Juliano and other employees
chose to be represented by the Union; that it threatened Juliano
and other union organizers with physical harm; and to set up
and get rid of Juliano because of his union activities.28 That
Respondent failed to hire any of the applicants who responded
to the March ad does not undermine the General Counsel’s
prima facie case, for I am convinced, given its subsequent con-
duct and actions, that the Respondent deliberately chose not to
hire from that pool of applicants as a way of justifying not hav-
ing to hire any of the four alleged discriminatees. In short, I
find that the General Counsel has made a strong prima facie
showing under FES, supra, that Della Vella, Corazo, Poston,
and Pritchard were denied employment solely because of their
affiliation with the Union.
The Respondent, for its part, offers nothing more than shift-
ing and unsupportable defenses to the refusal-to-hire allegation.
For example, the Respondent, as alluded to above, claims it did
27 Poston’s prior discharge and other related allegations were re-
solved by settlement agreement entered into by the parties and received
into evidence as Jt. Exh. 1C.
28 While the above stipulated statements and conduct were not spe-
cifically alleged in the instant complaint as separate violations, it is well
settled that conduct that exhibits animus but that is not independently
alleged or found to violate the Act may nevertheless be used to shed
light on the motive for other conduct that is alleged to be unlawful.
Kanawha Stone Co., 334 NLRB 235 at fn. 2 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 746
not hire the four alleged discriminatees, or for that matter any-
one who responded to the March ad, because delays and/or
cancellations in the First USA projects it expected to begin
working on in late March and early April eliminated its imme-
diate need to hire additional workers. It claims that the fact that
no one who responded to the March ad was hired supports its
position that it indeed was not in a hiring mode. Its argument
in this regard is flawed in several respects.
First, its claim that the four alleged discriminatees were not
hired because its hiring needs had dissipated by the time they
applied for work was not cited by Maston in his signed declara-
tion to the Board as a reason for their nonhire. Rather, in re-
sponse to the refusal-to-hire allegation, Maston, in his state-
ment to the Board, explained that the four alleged discrimina-
tees had failed to apply in the manner required by the March ad,
e.g., through resumes, and that, by the time they turned in their
resumes, he had begun to interview other applicants whose
resumes were received before their own. Nowhere in his
statement does Maston state that the alleged discriminatees
were not hired because the Respondent had changed its mind
about hiring. Rather, Maston’s explanation suggests that it was
the alleged discriminatees’ failure to properly apply for em-
ployment, and not, as claimed by Respondent at the hearing and
on brief, a decision by NDC to cancel or postpone its hiring
plans because of alleged project delays, which purportedly led
to their not being hired or considered for hire.29 This apparent
shift in Respondent’s explanation for not hiring or considering
for hire the four alleged discriminatees, from that first proffered
by Maston in his statement to the Board to that raised by Re-
spondent at the hearing and on brief, supports an inference that
neither explanation is a truthful one and that the real reason is
one which the Respondent seeks to conceal.30 Doug Wilson
Enterprises, 334 NLRB 394 (2001); Lucky Service Co., 292
NLRB 1159, 1167 (1989).
Further, as previously discussed, the Respondent’s claim that
it had postponed any hiring plans because of delays in its pro-
jects is patently false, for Moore’s April 9, request to Thwaites
for referrals, and the fact that the Respondent on April 13, be-
gan hiring, and continued doing so throughout April and in the
months that followed, provides clear evidence that no such
decision had been made. Admittedly, the Respondent did not
hire from the pool of applicants who responded to the March
ad. However, the above facts showing that the Respondent

29 Maston’s assertion in his statement to the Board, that the alleged
discriminatees had initially failed to properly apply for work by submit-
ting job applications rather than resumes, is inconsistent with assur-
ances given by Barbo to Della Vella and Corazo when they applied for
work that they were free to submit job applications in lieu of resumes.
I am convinced that the explanation proffered by Maston in his state-
ment to the Board was a pretextual one. The Respondent, as noted,
appears to have abandoned Maston’s explanation as a reason for not
hiring the four alleged discriminatees as it was not raised as a defense
at the hearing and, in fact, appears to have been repudiated by Maston
himself.
30 The Respondent, it should be noted, admits on brief that “its de-
fenses did shift to an extent”(R. Br. 19, fn. 21). Its claim that it did so
because Maston needed to recant his statement to the Board “in order to
relate the true facts” is rejected as without merit.
intended to, and did indeed, hire workers, albeit from sources
other than the March ad, convinces me that Maston’s decision
not to hire any of the March ad applicants must have been mo-
tivated by some factor other than a decision not to hire.
Clearly, Maston’s March 11, decision to schedule several of the
March ad applicants for interviews, and his offer of employ-
ment to Taraschi, suggests that the Respondent had intended to
hire from the pool of March applicants, but subsequently
changed its mind. Having rejected as not credible Respon-
dent’s explanation that it simply no longer had an immediate
need to hire, I find, in the absence of any other explanation, that
the Respondent’s decision not to hire from the March pool of
applicants was more likely than not prompted by its receipt of
applications from four union supporters. As indicated, the Re-
spondent strongly opposed the Union and its supporters and, as
evident by Moore’s April 9 comment to Thwaites, had no de-
sire or intention of hiring them. In an attempt to avoid hiring or
giving hiring consideration to union job applicants Della Vella,
Corazo, Poston, and Pritchard, the Respondent, as previously
indicated, opted not to hire any of the applicants who responded
to the March ad31 under the guise that delays in the starting
dates of its various projects had eliminated its need to hire addi-
tional workers.
The Respondent also claims that its refusal-to-hire the four
alleged discriminatees was justified because they were over-
qualified for the position. This “overqualification” defense,
however, was raised for the first time at the hearing and never
cited by Maston in his statement to the Board as a reason for
why Della Vella, Corazo, Poston, or Pritchard were not hired.
As previously indicated, this shifting defense supports an infer-
ence of unlawful motivation. However, it is patently obvious
that this overqualification factor could not have played a role in
their nonhire for Maston, who was responsible for the hiring,
readily admitted that he never so much as looked at the dis-
criminatees’ job applications. In sum, Respondent’s overquali-
fication defense is rejected as without merit.32
Finally, the Respondent’s claim that it did not unlawfully re-
fuse to hire paid union organizers Della Vella or Corazo be-
cause they were not bona fide job applicants is rejected as
without merit. In Town & Country Electric, 516 U.S. 85
(1995), the Supreme Court upheld the Board’s position in
Sunland Construction Co., 309 NLRB 1224 (1992), that paid
union organizers applying for jobs, as is the case here with
Della Vella and Corazo, are statutory employees entitled to the
protection of the Act. Both Della Vella and Corazo, as previ-
ously discussed, submitted applications as required by Respon-
dent, and testified credibly and without contradiction, that if
hired, they would have worked for Respondent. Both, as fur-
ther noted, made repeated followup calls to Respondent to in-
31 The fact that on March 11, Maston scheduled three of the March
applicants for interviews, and on March 17, interviewed and offered
employment to applicant Taraschi, makes clear that the Respondent had
every intention of hiring from the pool of applicants who responded to
its March ad.
32 Poston, as previously indicated, had worked for Respondent be-
fore being unlawfully terminated, making it highly unlikely that he
would have been considered overqualified for the position.
NETWORK DYNAMICS CABLING, INC. 747
quire about the status of their applications, a clear indication
that they had a genuine and continued interest in obtaining
employment with and working for Respondent. The Respon-
dent’s contention that they should not be considered bona fide
applicants because of the high salaries they earn as union or-
ganizers, because they engaged in what the Respondent per-
ceives to have been harmful picketing and handbilling at some
of its sites, and because they would only have worked for brief
periods of time is rejected. Recently, in Aztech Electric Co.,
335 NLRB 260 (2001), the Board rejected similar arguments
raised by the employer therein by noting that in Town & Coun-
try, the Court had “expressly rejected the argument that statu-
tory status should be denied to paid union organizers because
“salts” might try to harm the company, perhaps quitting when
the company needs them, perhaps disparaging the company to
others, perhaps even sabotaging the firm or its products . . . .”
In sum, I find that the Respondent has not sustained its bur-
den of showing that alleged discriminatees Della Vella, Corazo,
Poston, and Pritchard would not have been hired absent their
affiliation with the Union. Accordingly, the Respondent’s re-
fusal to hire Della Vella, Corazo, Poston, and Pritchard is found
to have violated Section 8(a)(3) and (1) of the Act.33
b. Suspension, warning, and discharge of Angelucci
The complaint alleges that the actions taken against Ange-
lucci, including his April 28 suspension, his early dismissal
from work on May 4, the warnings issued to him on May 5, and
his eventual discharge on May 6, were all motivated by anti-
union considerations and thus unlawful. Applying a Wright
Line analysis, I find that the General Counsel has made a prima
facie showing that the disciplinary measures taken against An-
gelucci, including his discharge were prompted by his union
activities. Angelucci’s involvement with the Union is well-
established in the record, as is Respondent’s knowledge of such
activities. As previously noted, the Respondent admits learning
of Angelucci’s ties to the Union and of his involvement in Un-
ion activities 8 days before it suspended him on April 28, for
distributing union literature. Evidence of Respondent’s animus
is, as found above in connection with the refusal-to-hire allega-
tion, well-established in the record. Accordingly, I am satisfied
that the General Counsel has established, prima facie, that the
Respondent was hostile to the Union and its supporters, and
that Respondent’s April 28, suspension of Angelucci, his early
dismissal on May 4, the warnings issued to him for arriving late
for work and leaving early on May 5, and his eventual dis-
charge on May 6, were retaliatory in nature and motivated by
said animosity. As the General Counsel has met her initial
Wright Line burden of proof, the burden now rests with the
Respondent to show that it would have taken the same actions
against Angelucci even if he had not been a union supporter or
activist. The Respondent, I find, has failed to meet its burden.
Thus, as to Angelucci’s April 28 suspension, the Respondent
has presented no credible evidence to support Stevenson’s

33 Having found that the Respondent unlawfully refused to hire
Della Vella, Corazo, Poston, and Pritchard, I need not address the re-
fusal-to-consider for hire allegation in the complaint. Interstate Build-
ers, Inc., 334 NLRB 835 fn. 2 (2001).
claim that Angelucci’s handbilling activities occurred during
his worktime and in a workarea. Thus, there was no independ-
ent corroboration for Stevenson’s assertion that Angelucci had
distributed union literature during his lunchbreak. Stevenson,
as noted, did not witness Angelucci’s activities firsthand, and
the only individual who allegedly witnessed his activities that
day, e.g., the Liberty property manager, was not called to tes-
tify. Angelucci, as further noted, denied credibly so in my
view, that his activities took place during his worktime. It is
well settled that an employer may not prohibit its employees
from engaging in solicitation relating to union or other pro-
tected activities during nonworking times or in distribution of
literature relating thereto in nonworking areas of its premises
during nonworking time, absent a showing by the employer that
such a prohibition is necessary to maintain plant discipline or
production. Beth Israel Hospital v. NLRB, 437 U.S. 483
(1978); Gayfers Department Store, 324 NLRB 1246, 1248
(1997). The Respondent here has presented no evidence to
show that Angelucci’s April 28 lunchtime handbilling activity
in nonwork areas in any way interfered with, or adversely af-
fected, its ability to perform its cabling installation work at the
Signal jobsite, or that it had caused disciplinary problems
among employees. Accordingly, I find that by suspending
Angelucci for handbilling on April 28, the Respondent violated
Section 8(a)(3) and (1) of the Act.
Regarding Angelucci’s early dismissal from work on May 4,
the latter, as noted, testified that Bower sent him home around
noontime after seeing Angelucci distributing union literature to
a security guard during Angelucci’s lunchbreak. Angelucci’s
testimony, including his claim that just prior to sending him
home Bower asked Angelucci why he kept doing this (e.g.,
distributing union literature) to him, is uncontested and found
to be credible. The Respondent offered no explanation for
sending Angelucci home early on May 4, and Angelucci’s cred-
ited testimony makes clear that there remained work to be done
at the jobsite and that, while he was dismissed early, other em-
ployees were kept on the job. In these circumstances, it is rea-
sonable to infer, particularly in light of Bower’s failure to tes-
tify, that Bower sent Angelucci home early on May 4, in re-
taliation for his handbilling activities. Having failed to offer
any explanation for sending Angelucci home early, I find that
the Respondent has not rebutted the General Counsel’s prima
facie case. Accordingly, I find that the Angelucci’s May 4
early dismissal violated Section 8(a)(3) and (1) of the Act.
As to the May 5 warnings, Angelucci, as noted, received two
warnings, the first for arriving one hour late to work, the second
for leaving work early that same day. Regarding the “late arri-
val” warning, the only defense offered by Respondent is Ste-
venson’s testimony that he chose not to believe Angelucci’s
explanation that a traffic accident caused him to be late because
other employees who lived in the same area as Angelucci (and
presumably traveled the same route to work) had arrived to
work on time that morning. However, Stevenson’s claim that
Angelucci was the only employee to arrive late for work that
morning was not substantiated by documentary or other evi-
dence. The Respondent, I am convinced, could have corrobo-
rated Stevenson’s claim in this regard by producing the weekly
timesheets of other employees showing when they arrived to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 748
work on May 5.34 The Respondent chose not to do so, warrant-
ing an adverse inference that said records would not have sup-
ported Stevenson’s claim that Angelucci was the only late arri-
val that day. I credit instead Angelucci’s testimony that other
employees were also late that day. In this regard, I note that
Angelucci’s explanation about being delayed due to a traffic
accident was corroborated by a newspaper article, received into
evidence without objection as GC Exh. 24, showing that a traf-
fic accident had in fact occurred on the morning of May 5. In
sum, I find that Stevenson simply seized upon Angelucci’s
admitted late arrival on May 5, as a pretext to retaliate against
him for his union activities. “A finding of pretext necessarily
means that the reasons advanced by the employer either did not
exist or were not in fact relied upon, thereby leaving intact the
inference of wrongful motive established by the General Coun-
sel.” Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982). Having found Respondent’s
explanation for the warning to be pretextual, it follows that the
Respondent has not sustained its Wright Line burden of show-
ing that Angelucci would have received the warning even if he
had not engaged in union activities or been a union supporter.
Accordingly, I find that Angelucci’s May 5 “late arrival” warn-
ing was unlawful and violated Section 8(a)(3) and (1) of the
Act.
The warning issued to Angelucci for leaving work early on
May 5 is also found to be pretextual and unlawful. Thus, I
credit Angelucci and find that after arriving late for work on
May 5, Stevenson told him he could either remain at the facility
and help out another employee in the warehouse or go home for
the rest of the day. Stevenson’s claim that Angelucci was given
no such option is simply not believable, particularly since Ste-
venson himself initially was unable to recall whether or not he
had done so. Having found that Angelucci was given the op-
tion of either remaining at Respondent’s facility or going home
following his late arrival for work on May 5, it follows that
Stevenson was not justified in issuing him a warning or sus-
pending him indefinitely the following day because Angelucci
opted to go home rather than remain at the facility.35 Having
rejected as without merit Respondent’s explanation for issuing
Angelucci the “early departure” warning, it follows that the

34 Angelucci’s weekly timesheets for the period February 2, through
May 1, received into evidence as R. Exh. 9, reflect that the Respondent
keeps a record of the time an employee arrives and leaves work each
day.
35 The Respondent contends on brief that it is “a rare manager” who
would allow “an employee to decide whether to work or quit.” Its
argument, in essence, is that it is somehow illogical to believe that
Stevenson would have permitted Angelucci to make the decision of
whether or not he wanted to work. While the record does not explain
just why Angelucci was given that option on May 5, Angelucci did
testify, without contradiction and in my view credibly, that he had in
the past often been asked if “I wanted to just go home for the day or . . .
work in the warehouse.” (Tr. 306) Stevenson’s own testimony, that by
the time Angelucci arrived for work on May 5, all other employees had
been dispatched to their jobsites, suggests the likelihood that the Re-
spondent may have had little use for Angelucci’s services that day,
prompting Stevenson to offer Angelucci the option of remaining at the
facility or going home.
Respondent has not provided a legitimate, nondiscriminatory
for its issuance, and has consequently failed to rebut the Gen-
eral Counsel’s prima facie case. Accordingly, I find that the
warning issued to Angelucci on May 5 for leaving work early,
like the unlawful warning issued to him for arriving late for
work and like the suspension issued to him for distributing
union literature during his free time, was part and parcel of
Respondent’s efforts to retaliate against Angelucci for his union
activities. As such, its issuance violated Section 8(a)(3) and (1)
of the Act as alleged.
Finally, Angelucci’s May 6 discharge was also unlawful. As
the Board recently pointed out in The Hays Corp., 334 NLRB
48, 50 (2001), “where a respondent disciplines an employee
based on prior discipline that was unlawful, any further and
progressive discipline based in whole or in part thereon must
itself be unlawful.” Here, Angelucci’s discharge was, as noted,
based in large part on his April 28 suspension, and on the two
warnings issued to him on May 5, all of which were found to
have been unlawfully imposed on, or issued to, Angelucci for
his union activities. Although the Respondent also cites Ange-
lucci’s insubordination as a grounds for the discharge, it has not
demonstrated what, if any, discipline would have been meted
out to Angelucci for the alleged insubordination had it not re-
lied on the unlawful suspension and warnings. See Celotex
Corp., 259 NLRB 1186 fn. 2 (1982).36 As the Respondent has
not shown that it had a legitimate, nondiscriminatory reason for
discharging Angelucci on May 6, the discharge is found to have
violated Section 8(a)(3) and (1) of the Act as alleged.
CONCLUSIONS OF LAW
1. The Respondent, Network Dynamics Cabling, Inc., is an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
Union 98, AFL–CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By telling an employee that applicants for employment
could not be affiliated with the Union, the Respondent has vio-
lated Section 8(a)(1) of the Act.
4. By refusing to hire job applicants William Corazo, Ray-
mond Della Vella, Robert Poston, and John Pritchard because
of their membership in the Union, the Respondent violated
Section 8(a)(3) and (1) of the Act.
5. By suspending Anthony Angelucci on April 28, sending
him home early from work on May 4, issuing him warnings on
36 I am, in any event, not convinced, given the inconsistency be-
tween Moore’s and Stevenson’s testimony, that insubordination played
any role in Angelucci’s discharge. Thus, while Stevenson, as noted,
claims he made the decision to discharge Angelucci for “insubordina-
tion and various other things” after receiving a report from Moore that
Angelucci was still on the premises, Moore’s testimony reflects that he
delivered the discharge letter to Angelucci before the latter expressed
his refusal to leave. Thus, if accepted as true, Moore’s testimony
clearly indicates that Angelucci’s alleged insubordinate behavior oc-
curred after he was notified of the discharge, and thereby contradicts
Stevenson’s claim that the discharge letter was prepared and the dis-
charge effectuated after Angelucci purportedly became insubordinate
by refusing to leave the premises until the police were called.
NETWORK DYNAMICS CABLING, INC. 749
May 5, and discharging him on May 6, because of his member-
ship in and activities on behalf of the Union, the Respondent
violated Section 8(a)(3) and (1) of the Act.
6. The above-described unfair labor practices have a close,
intimate, and substantial affect on the free flow of commerce
within the meaning of Section 2(6) and (7) 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.
To remedy the unlawful refusal-to-hire violation, the Re-
spondent shall be required to, within 14 days from the date of
the Order, offer William Corazo, Raymond Della Vella, Robert
Poston, and John Pritchard instatement in positions for which
they applied, or if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to seniority or any
other rights and privileges they would have enjoyed absent the
discrimination against them. The Respondent shall also be
required to make them whole for any loss of earnings and other
benefits they may have suffered as a result of its unlawful re-
fusal to hire them, in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (2001).
To remedy the violations committed against Anthony Ange-
lucci, the Respondent shall likewise be required to, within 14
days from the date of the Order, rescind the May 5 warnings
issued to him, and to offer Angelucci full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed. Further, the Re-
spondent shall make Angelucci whole for any losses he may
have suffered as a result of his unlawful April 28, suspension,
his early dismissal from work on May 4, and his discharge on
May 6, in the manner prescribed in F. W. Woolworth Co., su-
pra, with interest to be computed as prescribed in New Horizons
for the Retarded, supra.37
The Respondent will also be required to, within 14 days from
the date of the Order, remove from its files any reference to its
unlawful refusal to hire William Corazo, Raymond Della Vella,
Robert Poston, and John Pritchard, and any reference to An-
thony Angelucci’s unlawful April 28 suspension, its unlawful
early dismissal of Angelucci from work on May 4, the unlawful
warnings issued to Angelucci on May 5, and to Angelucci’s
unlawful discharge on May 6, and within 3 days thereafter,
notify the above employees in writing that this has been done
and that said conduct will not be used against them in any way.

37 The General Counsel amended the complaint at the hearing to in-
clude, as part of any remedial relief to be granted to the discriminatees,
a requirement that the Respondent reinburse Della Vella, Corazo,
Poston, Pritchard, and Angelucci for any extra Federal and/or State
taxes that would or may result from a lump sum payment of backpay to
them. I decline to grant such relief as this would involve a change in
Board law and is, therefore, best left to the Board for its consideration
following a full briefing by the affected parties. See, Cannon Valley
Woodwork, Inc., 333 NLRB No. 97, fn. 3 (2001) (not reported in bound
volume).
Finally, the Respondent will be required to post an appropriate
notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended38
ORDER
The Respondent, Network Dynamics Cabling, Inc., West-
chester, Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Telling employees that it would not hire job applicants
who are affiliated with the Union.
(b) Refusing to hire job applicants because they are members
of or sympathizers with the Union.
(c) Suspending employee Anthony Angelucci from work,
sending him home early, issuing him written warnings, and
discharging him for supporting or engaging in activities on
behalf of the Union.
(d) In any like or related manner restraining or coercing em-
ployees 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.
(a) Within 14 days from the date of this Order, offer William
Corazo, Raymond Della Vella, Robert Poston, and John
Pritchard employment to positions for which they applied, or if
such positions no longer exist, to substantially equivalent posi-
tions, without prejudice to seniority or any other rights and
privileges they would have enjoyed absent the discrimination
against them.
(b) Make whole William Corazo, Raymond Della Vella,
Robert Poston, and John Pritchard for any loss of earnings and
other benefits sustained due to Respondent’s unlawful refusal
to hire them, as set forth in the remedy section of this decision.
(c) Within 14 days of the date of the Order, offer Anthony
Angelucci full reinstatement to his former position or, if the
position no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(d) Make Anthony Angelucci whole for any loss of earnings
and other benefits suffered as a result of his unlawful suspen-
sion on April 28, his early dismissal from work on May 4, and
his unlawful discharge on May 6, in the manner described in
the remedy section of this decision.
(e) Within 14 days from the date of the Order, remove from
its files any reference to its unlawful refusal to hire William
Corazo, Raymond Della Vella, Robert Poston, and John
Pritchard, and any reference to Anthony Angelucci’s unlawful
April 28 suspension, its unlawful early dismissal of Angelucci
from work on May 4, the unlawful warnings issued to Ange-
lucci on May 5, and to Angelucci’s unlawful discharge on May
6, and within 3 days thereafter, notify the above employees in
38 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750
writing that this has been done and that said unlawful conduct
will not be used against them in any way.
(f) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(g) Within 14 days after service by the Region, post at its fa-
cility in Westchester, Pennsylvania, copies of the attached no-
tice marked “Appendix.”39 Copies of the notice, on forms
provided by the Regional Director for Region 4, after being

39 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.”
signed by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, 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 March 11, 1998.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.