New York City District Council of Carpenters Apprenticeship, Journeyman Retraining, Educational, and

National Labor Relations Board - Administrative Judge Opinions

Jul 30, 2015

02-CA-121358 (N.L.R.B. Jul. 30, 2015)

JD(NY)–36-15
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH
NEW YORK CITY DISTRICT COUNCIL OF
CARPENTERS APPRENTICESHIP,
JOURNEYMAN RETRAINING, EDUCATIONAL,
AND INDUSTRY FUND
and Case No. 02-CA-121358
Case No. 02-CA-121477
DENNIS A. BROWN, an Individual
and
RICHARD SATURNO, an Individual
Rebecca A. Leaf, Esq.,
for the General Counsel.
G. Peter Clark, Esq.,
for the Respondent.
Bernard Mason, Esq.,
for the Charging Parties.
DECISION
STATEMENT OF THE CASE
Lauren Esposito, Administrative Law Judge. Based upon a charges in Case 02–CA–
121358 and 02-CA-121477, filed on January 28, 2014, and January 29, 2014, by Dennis A.
Brown and Richard Saturno, respectively, a complaint and notice of hearing issued on April 30,
2014. The complaint alleges that New York City District Council of Carpenters Apprenticeship,
Journeyman, Retraining, Educational, and Industry Fund (“Respondent”) violated Section
8(a)(1) of the Act by denying Brown and Saturno teaching assignments to the shop and field
sections of an upcoming grants program training course entitled Building Works, in retaliation for
their protected concerted activities. This case was tried before me on September 22–24, 2014,
and on October 6, 2014, in New York, New York.
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After the conclusion of the trial, the parties filed briefs, which I have read and
considered. Base on those briefs, and the entire record in the case, including the testimony of
the witnesses and my observation of their demeanor, I make the following
FINDINGS OF FACT5
I. JURISDICTION
Respondent is a Taft-Hartley jointly administered benefit fund with offices and a place of
business in New York, New York. I find, as Respondent admits, that it is an employer within the 10
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts15
1. Background
Respondent operates a Labor Technical College which administers training programs,
including an apprenticeship program and a preapprenticeship program known as Building 20
Works which has employed the Charging Parties as instructors. Elly Spicer is the director of
training for the Labor Technical College, including both the apprenticeship program and Building
Works. Donald Killinger was the director of preapprenticeship training programs and grants
manager for approximately 10 years, until September 19, 2013. On August 5, 2013, Joan
Staunton became director of preapprenticeship training programs and grants manager, and 25
shadowed Killinger until his tenure ended. During this period of overlap, Killinger familiarized
Staunton with Building Works and the program’s instructors (Tr. 338). The director of
preapprenticeship training programs and grants manager reports to Spicer. Suzanne
McNamara has been the assistant grants manager for Building Works since 1998, and now
reports to Staunton. Respondent admits and I find that Killinger, Staunton, and McNamara are 30
supervisors within the meaning of Section 2(11) of the Act.
The instant case involves instructors in Respondent’s Building Works program. Building
Works is a preapprenticeship training program to teach carpentry and building trades skills to
individuals in economically disadvantaged communities, who can then be placed in jobs in the 35
building trades, optimally within a union apprenticeship program (Tr. 231). There is a significant
application process for candidates, including what the parties refer to as a “Tryout” where the
candidates are evaluated by instructors as they perform practical activities. The Building Works
program itself consists of a 3 to 4 month training cycle followed by job placement and follow-up
with former students who enter apprenticeship programs (Tr. 231–232). There are typically 40
between 2 and 4 Building Works programs, or cycles, each year (Tr. 31). Each Building Works
cycle includes a shop class and a field class. The shop class takes place at Respondent’s 345
Hudson Street location, and involves training in tool use, manipulation, and recognition, shop
safety, blueprint reading, measuring, and bench work (Tr. 34). The field class permits the
students to use skills acquired during the shop class as they perform work at an actual building 45
site, usually associated with a not-for-profit concern1 (Tr. 34). The shop portion of the Building
Works program lasts for approximately 2 weeks, and the field portion lasts for approximately 3

1 Other classes comprising a typical Building Works cycle include math/literacy, asbestos,
blueprint reading, and health and safety. GC Exh. 5; Tr. 37.
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weeks (GC Exh. 5). Staunton manages a staff of Building Works program coordinators,
including McNamara, Lisa Bethea, and Everett Kilgo (Tr. 275).
The Charging Parties, Dennis Brown and Richard Saturno, have worked as instructors in
the Building Works program for a number of years. Brown began working for Respondent on 5
February 14, 2001, and has taught in both the Building Works and apprenticeship programs (Tr.
30). Saturno has been an instructor with the Building Works program since 1974, and began
teaching shop and field classes in 2000 (Tr. 181–182). Brown and Saturno both testified that
they typically taught the shop and field portions of a Building Works cycle together, for cycles
situated in both New York and New Jersey (Tr. 38; GC Exhs. 7, 8, 22, 23, 27). Occasionally, if 10
there were New York and New Jersey cycles occurring simultaneously, a third instructor would
be brought in to assist them with the shop and field classes (Tr. 38–39). In 2011 and 2012, the
third instructor assigned to shop and field classes with Brown and Saturno was Nestor Gonzalez
(Tr. 114). Brown and Saturno also evaluated the Building Works participants, and prepared
written grades which were then provided to the program coordinators2 (Tr. 60–61, 64–66; GC 15
Exhs. 10–13). Brown and Saturno selected the top three Building Works participants for awards
as well (Tr. 66; GC Exhs. 11–13).
In addition to the actual instruction of participants in the Building Works shop and field
classes, Brown and Saturno sought out and selected the job sites for Building Works field 20
classes. Brown testified that this involved locating not-for-profit building sites through his own
business contacts, making appointments, and visiting the job sites to determine whether they
would be appropriate for a field class (Tr. 72–74, 192–193; GC Exh. 14). Brown and Saturno
then prepared lists of supplies and materials necessary for the field class to actually perform
work at the jobsite, once selected (Tr. 77–80, 83–84; GC Exhs. 15, 16). Brown testified that, to 25
the best of his knowledge, either he or Saturno had “scoped” almost every jobsite for the
Building Works field classes within the past 5 years in this manner (Tr. 74).
Brown and Saturno considered themselves the lead instructors for the Building Works
shop and field classes, and referred to themselves in this manner in their interactions with 30
Respondent3 (Tr. 56–57, 193–194; GC Exh. 12). Although Respondent’s witnesses denied the
existence of a “lead instructor” job classification, there is no evidence that Respondent
disabused Brown and Saturno of the idea that they functioned in such a manner (Tr. 320–321,
352).
35
Brown and Saturno also worked as instructors on Tryouts, where candidates for
upcoming Building Works cycles participate in activities designed to test their aptitude for
mathematics and spatial relations, measurement concepts, verbal communication, and
interpersonal interaction (Tr. 87–92, 186–189). Brown, Saturno, and the program managers
who also worked at the Tryouts then evaluated the candidates for potential placement in the 40
Building Works program (Tr. 216–217). Brown and Saturno both testified, without contradiction,
that every time they had worked as instructors during a Tryout, they had also worked as shop
and field instructors during the ensuing Building Works cycle (Tr. 98, 190).

2 Brown established the scale for grading participants in the Building Works program (Tr.
61–62). If a third instructor had taught the shop and field classes, they would participate in the
grading as well (Tr. 61, 65–66; GC Exh. 11).
3 For example, in a February 5, 2013 email to Higbee submitting the student grades and
rankings for an earlier New Jersey Building Works cycle, Brown stated that “Richie [Saturno]
and I have been the primary instructors, and have spent the most time with the students” (GC
Exh. 12).
JD(NY)-36-15
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2. The October 23, 2013 Conversation between Brown, Saturno, and Staunton
On October 23, 2013, Brown and Saturno had come to the employer’s facility in order to
perform an inventory of the tools they would need for an upcoming New York Building Works 5
shop class, when Staunton asked them to meet with her in her office (Tr. 102, 199, 243–244).
After Brown and Saturno arrived, Staunton asked them to prepare written lesson plans for the
New York Building Works shop class. Brown said that they already had a general outline, but
Staunton said that she wanted a day-to-day description of the class containing more specific
information (Tr. 102, 199, 245–246). Brown told Staunton that they would not have time to 10
prepare a detailed description of the shop class that day, and Staunton asked that they send it
to her later (Tr. 102). Brown also asked Staunton for a copy of the upcoming class schedule,
and she said she would send it to both of them (Tr. 365–366).
At that point, the testimony regarding this meeting diverges. According to Brown and 15
Saturno, Saturno then told Staunton that he and Brown had ongoing concerns about the terms
and conditions of their employment. According to Brown and Saturno, Saturno said that he and
Brown did not have a work agreement, and did not know their benefits, work hours, or the time
frame for receiving their pay (Tr. 102, 199). Saturno testified that he also inquired about their
official title and overtime pay, and asked Staunton why they were not receiving the same pay 20
rate as full-time instructors (Tr. 200). According to Brown and Saturno, Saturno also told
Staunton that the Labor Wage Theft Prevention Act, enacted in 2010, required that Respondent
provide them with a yearly statement describing their benefits and pay, but they had never
received one4 (Tr. 102–103, 199). Saturno testified that he also told Staunton that he had
received a letter from Retirement Fund Manager Brian Spencer mentioning an agreement that 25
applied to their employment, which he and Brown had never seen5 (Tr. 200, 212–215; R.S. Exh.
7). Saturno and Brown testified that after Saturno initially raised these issues, Brown said that
he needed to leave to use the restroom, and Saturno said that they should wait until Brown
returned in order to continue the discussion (Tr. 362–364, 386–388). Saturno testified that while
Brown was in the restroom, Staunton reviewed some papers and made notes (Tr. 387).30
According to Brown and Saturno, after Brown returned from the restroom the meeting
continued for another ten minutes or so, and they discussed the questions Saturno had raised
(Tr. 363–364). Staunton told Brown and Saturno, “your jobs are going to be phased out
eventually” (Tr. 103). Staunton then told Saturno that he had made “a lot of complaints” or “had 35
asked questions before,” and was “being watched carefully” (Tr. 103, 200). However, Staunton
said that she would “discretely inquire” as to whether a work agreement or the LWTPA notice
existed, and provide them with copies6 (Tr. 103, 200–201). The meeting then ended, and
Brown and Saturno left in order to do inventory (Tr. 364, 387).

4 Brown and Saturno testified that they received a LWTPA notice for the first time in
February 2014 (Tr. 103, 368–369; GC Exh. 26).
5 This October 15 letter to Saturno from Spencer states that it responds to Saturno’s inquiry
regarding hours reported to the Pension Fund on his behalf. The letter further states that “prior
to January 1, 2011, Participation Agreement did not exist which required your Employer to
contribute to the Pension Fund,” but that contributions had been made on his behalf since that
time (R.S. Exh. 7).
6 Saturno testified that the next week he saw Staunton at a job site in Gerritsen Beach,
Brooklyn, and asked her whether she had any information about the questions he and Brown
had raised during their meeting. Staunton replied that she was preparing a letter, but Saturno
never received one (Tr. 201).
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Staunton testified that she could not recall any mention of overtime pay, the Labor Wage
Theft Prevention Act, Saturno’s being watched, or Brown and Saturno’s jobs being phased out
during this conversation (Tr. 250–252). Staunton testified that Brown and Saturno asked her to
let them know as soon as possible if there were any future Building Works cycles for which they 5
would be scheduled, and she said that she would attempt to do so (Tr. 247). According to
Staunton, Brown and Saturno then stated that they were unclear as to their job title and job
description, and Staunton said that she would look into that for them (Tr. 247–248). Staunton
testified that Brown then left to begin taking inventory,7 but Saturno stayed behind, and showed
her the letter he had received from the Pension Fund (Tr. 248). Staunton said that she had 10
seen the letter, and Saturno appeared “very upset” about it (Tr. 248). Staunton explained that
she had been sent a copy as a courtesy, as the director of Building Works, and that it was not a
big deal (Tr. 248–249). Saturno asked about the participation agreement referred to in the
letter, and Staunton said that she was not familiar with it, directing Saturno to the benefits
department (Tr. 249). Saturno then became agitated, saying that he did not want to ask too 15
many questions or get in trouble and get fired like Nestor [Gonzalez] (Tr. 249). Staunton
assured him that that would not happen, because Saturno was only asking questions (Tr. 249).
Later in the afternoon, Staunton sent Brown and Saturno an email containing the class
schedule for the New York Building Works cycle taking place in November and December (Tr. 20
101, 198–199, 365; GC Exh. 20). In addition, Staunton provided possible dates for the shop
and field classes for the next Newark Building Works cycle, in December and January,
emphasizing that the Newark dates were tentative (.C Exh. 20).
3. Other discussions regarding instructor wages and benefits25
Brown and Saturno testified regarding several other conversations with Respondent’s
managers involving inquiries and complaints about the instructors’ terms and conditions of
employment. Brown and Saturno testified that in early October 2012 they had a conversation
with Assistant Grants Manager Suzanne McNamara regarding the employment of Nestor 30
Gonzalez, who had worked with Brown and Saturno as the third instructor for the Building
Works field class. Brown and Saturno testified that McNamara called them out of their
classroom while they were teaching at a Tryout (Tr. 115, 204–205). McNamara told them that
they were only authorized to bill Respondent for 7 ½ hours of work per day during the upcoming
field class, and were not authorized to bill for overtime. According to Brown and Saturno, Brown 35
then asked McNamara for permission to contact Gonzalez, because the field class would
require a third instructor given its size (Tr. 115, 205). McNamara responded that Gonzalez
would not be working for Respondent in the future, because he had made “too many complaints
about his pension and benefit hours,” and “ruffled feathers” (Tr. 115, 205). McNamara stated
that Director of Training Elly Spicer had “had it with him” as a result (Tr. 115–116).40
McNamara testified that she recalled telling Brown and Saturno that they were
authorized to bill Respondent for 7 ½ hours of work per day during this conversation (Tr. 354).8
However, she testified that she could not recall Brown or Saturno saying anything, and denied
making any statement regarding Nestor Gonzalez (Tr. 355–356). Spicer also denied ever telling 45

7 In surrebuttal testimony, Staunton stated that she could not recall Brown leaving to use the
restroom during the conversation (Tr. 395–396).
8 She also testified that she told Brown and Saturno that changes would probably take place
in their employment, because Spicer was interested in using full-time instructors for the Building
Works program (Tr. 354).
JD(NY)-36-15
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McNamara, or anyone else, that Gonzalez had made too many complaints regarding his
pension and benefits hours (Tr. 343–344).
Brown also testified regarding a conversation with Donald Killinger, who was then grants
manager, about Saturno’s complaints pertaining to wages and benefits hours during the winter 5
of 2012 (Tr. 116–117). Brown testified that he had called Killinger to ask whether another
employee could notarize some documents during the lunch hour, and Killinger instead asked
Brown to come to his office (Tr. 116). Killinger asked Brown, “Does [Saturno] have anything
against me?” and Brown responded that Saturno was “just unhappy with the way things are
going” (Tr. 117). According to Brown, Killinger said that he had heard from Spicer and “from 10
upstairs” that Saturno had been “making too many complaints about…wages and hours and
benefits,” to the benefit fund in particular. (Tr. 117–118). Killinger said that Saturno’s complaints
were “making it very uncomfortable for me and for the Labor Technical College,” and that Spicer
had said that it was “not a healthy situation” (Tr. 118). Brown responded that Saturno wanted
“parity” with any other union carpenter, and wanted “the same benefits and hours and rate of 15
pay that we were promised” (Tr. 118).
Killinger testified that he recalled this conversation with Brown, which he initiated in order
to discuss Saturno. According to Killinger, “there were a number of incidents where I felt like I
was under direct attack by [Saturno] for things that I allegedly had said, or done, or ways that he 20
had interpreted things that I had said and done” (Tr. 328). Killinger testified that he was
“confused by the nature of [Saturno’s] accusations,” and “was taking personal offense” (Tr. 328).
Killinger stated that he wanted to ask Brown about Saturno, and “why these things kept coming
at me” (Tr. 328–329). Killinger testified that, “I certainly can’t directly quote anything from that
conversation,” but that Brown stated “something along the lines” that he didn’t really know what 25
was going on and would be “on the lookout” (Tr. 329). Killinger stated that he could not recall
telling Brown that Saturno was making too many complaints, or that Spicer had said that it was
“not a healthy situation” (Tr. 331–332). Spicer also denied making these statements to Killinger
(Tr. 344–345).
30
Finally, Saturno testified regarding an earlier conversation between Killinger and Nestor
Gonzalez pertaining to pension credits. According to Saturno, in May 2011 the instructors
received a wage increase retroactive to January 1, with annuity and pension contributions, and
in June 2011 Gonzalez was informed that he would be losing his pension because he was
working for the District Council of Carpenters (Tr. 203). Saturno and Gonzalez subsequently 35
asked Spencer whether they were receiving pension credits, and Spencer said no (Tr. 203).
Saturno testified that shortly after he and Gonzalez returned to the shop, Killinger came in and
yelled at Gonzalez, telling him that if he had questions regarding his compensation he needed
to “follow the chain-of-command” (Tr. 203–204). Killinger testified that he had no recollection of
this specific conversation, but stated that he never “angrily confronted” the instructors (Tr. 324–40
325).
4. The 2013 tryouts and New Jersey Building Works pogram
By email dated October 18, 2013,9 Brown and Saturno learned from Lisa Bethea that 45
they would be teaching at the Tryout for the upcoming New Jersey Building Works program (Tr.
87; GC Exh. 17). The tryout took place on October 24 and 25 (Tr. 87, 255–256; GC Exh. 17).
Brown ran the Ladder Relay station on the first day (Tr. 88, 90–91). On the second day, Brown
and Saturno ran the measurement program, including the village exercise, a cooperative role-

9 All subsequent dates are in 2013 unless otherwise indicated.
JD(NY)-36-15
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playing exercise involving measurement (Tr. 89; GC Exh. 17). On October 23, Staunton sent
Brown and Saturno the email described previously, which contained the tentative dates for the
New Jersey Building Works cycle10 (GC Exh. 20). On October 25, Staunton sent the instructors
and program directors, including Brown and Saturno, a list of 15 candidates that had been
selected for the New Jersey Building Works cycle based upon their participation in the Tryout 5
(GC Exh. 18). Staunton stated in this email, “Thanks again for your help in the selection
process. We look forward to another successful class!”
As stated previously, Brown and Saturno had always been assigned the shop and field
classes for a Building Works cycle after they had taught the preceding Tryout. Based upon this 10
experience, they assumed they would be teaching the shop and field classes in the New Jersey
Building Works program tentatively scheduled for December 2013 and January 2014. However,
on December 13, Staunton sent Brown an email informing him that he would not be teaching
the shop class in the upcoming New Jersey Building Works program (Tr. 107–108; GC Exh. 21).
Brown responded on December 15, asking whether he would be teaching the field class in the 15
program, and indicating that he was available (GC Exh. 21). Staunton replied the next day that
Brown would not be teaching the field portion of the program either (GC Exh. 21). On
December 12, Saturno wrote to Staunton as well, asking whether he would be teaching the field
class for the New Jersey program. The next day, Staunton forwarded Saturno’s email to
McNamara, with a draft response to Saturno telling him that he would not be needed for the 20
upcoming New Jersey shop class (GC Exh. 24). An hour and a half later, Staunton sent
Saturno a similar email to the one she had sent McNamara, informing him that he would not be
teaching (R.S. Exh. 13).
Brown and Saturno then spoke to Staunton regarding the New Jersey Building Works 25
program on December 20, at the completion of the New York program in Brooklyn. Brown and
Saturno testified that when Staunton approached them, Saturno asked, ‘Is this our swan song?”
(Tr. 108, 197–198). Staunton replied, “we’ll call you when we need you” (Tr. 108, 198). Saturno
said that he was not happy about not having been assigned the New Jersey program, but
Staunton just shrugged (Tr. 108). Staunton testified that when she saw Brown and Saturno they 30
discussed the performance of the students in the New York program, and then asked why they
had been fired (Tr. 269–270). Staunton testified that she told Brown and Saturno that they had
not been fired, and that she would call them the next time they were needed (Tr. 270).
According to Staunton, Brown and Saturno then asked whether Spicer planned to continue
using full time as opposed to part-time instructors for the Building Works programs, and 35
Staunton responded that she understood that to be the plan moving forward11 (Tr. 271).
Brown and Saturno were never informed why Respondent did not assign them to teach
the shop and field classes during the New Jersey Building Works cycle in December 2013 and
January 2014 (Tr. 110, 197). Instead of Brown and Saturno, Staunton assigned two other part-40
time instructors, Steve Levisay and Steve Russo, to teach the shop and field classes.
45

10 Brown testified that the director or one of the program coordinators would usually provide
the instructors with a schedule for a particular cycle prior to its inception (Tr. 366–368).
11 On rebuttal, Brown and Saturno denied discussing the use of full-time staff for the Building
Works shop and field classes during this conversation (Tr. 373–374, 389).
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B. Discussion and Analysis
1. Applicable legal standards and contentions of the parties
Under Section 8(a)(1) of the Act, an employer may not “interfere with, restrain or coerce 5
employees in the exercise of the rights guaranteed” by Section 7. In order to determine whether
an adverse employment action was unlawfully motivated, the Board utilizes the analysis
articulated in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert
denied, 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983). To establish unlawful conduct under Wright Line, the General Counsel must first 10
prove, by a preponderance of the evidence, that the employee’s protected activity was a
motivating factor in the employer’s decision. Camaco Lorain Mfg. Plant, 356 NLRB No. 143 at
p. 3–4 (2011). The General Counsel makes a showing of discriminatory motivation by proving
the employee’s protected activity, employer knowledge of that activity, and animus against the
employee’s protected conduct. Alternative Energy Applications, Inc., 361 NLRB No. 139 at p. 3 15
(2014); Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). If the General Counsel is
successful, the burden of persuasion then shifts to the employer to show that it would have
taken the same action even in the absence of the protected conduct. Wright Line, 251 at 1089;
Mesker Door, 357 NLRB No. 59, at p. 2 (2011); Septix Waste, Inc., 346 NLRB 494, 496 (2006).
Once the General Counsel has met its initial burden under Wright Line, an employer does not 20
satisfy its burden merely by stating a legitimate reason for the action taken, but instead must
persuade by a preponderance of the credible evidence that it would have taken the same action
in the absence of the employee’s protected activity. T&J Trucking Co., 316 NLRB 771 (1995),
enf’d, 86 F.3d 1146 (1st Cir. 1996); Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996),
enf’d, --- Fed.Appx. ----, 127 F.3d 34 (5th Cir. 1997). 25
Proof of an employer's motive can be based upon direct evidence or can be inferred
from circumstantial evidence based on the record as a whole. Robert Orr/Sysco Food Services,
343 NLRB 1183 (2004), enfd. 184 Fed. Appx. 476 (6th Cir. 2006); Ronin Shipbuilding, 330
NLRB 464 (2000). It is well-settled that adverse action occuring shortly after the employee has 30
engaged in protected activity engenders an inference of unlawful motive. See McClendon
Electrical Services, 340 NLRB 613 fn. 6 (2003), citing La Gloria Oil & Gas Co., 337 NLRB 1120
(2002), enfd. 71 Fed. Appx. 441 (5th Cir. 2003). As part of its initial showing, the General
Counsel may offer proof that the employer's reasons for the personnel decision were pretextual.
Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003); Laro Maintenance Corp. v. NLRB, 56 F.3d 35
224, 229 (D.C. Cir. 1995); see also Real Foods Co., 350 NLRB 309, 312 fn. 17 (2007) (unlawful
motivation demonstrated not only by direct evidence, but by circumstantial evidence such as
timing, disparate or inconsistent treatment, expressed hostility, departure from past practice and
shifting or pretextual reasons being offered for the action). Indeed, if the evidence establishes
that the employer’s asserted reasons are pretextual, “either false or not actually relied on,” the 40
employer “fails by definition to show” that it would have taken the same action despite the
employee’s protected activity. Alternative Energy Applications, Inc., 361 NLRB No. 139 at p. 3,
citing Metropolitan Transportation Services, 351 NLRB 657, 659 (2007).
General Counsel contends that Respondent violated Section 8(a)(1) by refusing to 45
assign Brown and Saturno to teach the shop and field classes in the December 2013-January
2014 New Jersey Building Works cycle in retaliation for their protected concerted activity.
Respondent argues that Brown and Saturno did not engage in protected concerted activity, and
that it selected Levisay and Russo to teach the shop and field classes in the New Jersey
Building Works cycle, instead of Brown and Saturno, for legitimate, nondiscriminatory reasons. 50
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2. Brown and Saturno engaged in protected concerted activity
The evidence establishes that Brown and Saturno engaged in protected concerted
activity during their discussion with Staunton on October 23 and on other pertinent occasions. I
credit Brown and Saturno’s mutually corroborative testimony that Saturno told Staunton that he 5
and Brown did not have an agreement applicable to their work, and were unclear as to their
benefits and work hours. I further credit their testimony that Saturno protested Respondent’s
failure to provide them with an annual notice pursuant to the Labor Wage Theft Prevention Act,
including information regarding their regular and overtime pay rates. It is well-settled that
discussions involving wages, “probably the most critical element in employment,” constitute 10
protected activity and “the grist on which concerted activity feeds.” Parexel International, LLC,
356 NLRB No. 82 at p. 3 (2011), quoting Aroostook County Regional Ophthalmology Center,
317 NLRB 218, 220 (1995), enfd. in part 81 F.3d 209 (D.C. Cir. 1996); see also Alternative
Energy Applications, Inc., 361 NLRB No. 139 at p. 4, fn. 10. The evidence therefore establishes
that Brown and Saturno’s statements to Staunton addressed their terms and conditions of 15
employment, and were protected under Section 7.
I further find that Brown and Saturno’s activity was concerted in nature. Brown and
Saturno met with Staunton together on October 23, and the evidence establishes that they
raised issues regarding wages and benefits which applied to both of them. Furthermore, when 20
Saturno encountered Staunton at a jobsite in Gerritsen Beach 1 week later, Saturno asked her
whether she had any information “about the questions that Dennis and I had” (Tr. 201). Such a
sequence of events comprises an “ongoing collective dialogue” with Respondent’s managers
regarding Brown and Saturno’s terms and conditions of employment. Tampa Tribune, 351
NLRB 1324, 1324–1325 (2007), enf. denied, 560 F.3d 181 (4th Cir. 2009). As a result, I find 25
that Brown and Saturno raised their issues regarding wages and benefits in a concerted
manner.
In reaching these conclusions, I credit the testimony of Brown and Saturno over the
testimony of Staunton to the extent that they conflict. I note that Brown and Saturno, who chose 30
not to remain in the hearing room during one another’s testimony, both provided detailed
testimony regarding the meeting with Staunton which was generally mutually corroborative.
Respondent contends that Saturno spoke to Staunton regarding wages and benefits alone after
Brown left the room, and only raised issues regarding his own compensation, such that his
statements were not concerted in nature. However, on rebuttal Brown and Saturno offered 35
mutually corroborative testimony to the effect that Brown left the meeting briefly to use the
bathroom, and that Saturno and Staunton did not discuss the issues regarding wages and
pension benefits until after he returned, when Saturno raised these concerns as applying to both
of them. I find their testimony in this respect more probative than Staunton’s statement on
surrebuttal that she could not recall Brown’s leaving the meeting to use the bathroom (Tr. 395–40
396). As a result, I find that Brown was present when Saturno questioned Staunton as to their
wages, benefits, and other terms and conditions of employment.
In addition, the evidence does not support Respondent’s argument that Brown and
Saturno’s activity was not concerted because Saturno was referring solely to his own pension 45
fund contributions when showing Staunton Spencer’s letter. I credit Saturno’s testimony that he
referred to the letter in order to question Staunton regarding the “Participation Agreement” it
mentions requiring that Respondent contribute to the pension fund on Saturno’s behalf, and that
Saturno characterized the participation agreement as applying to both his and Brown’s
employment. The evidence also establishes that beginning in 2011 Respondent began making 50
contributions to the annuity and pension funds not only on behalf of Saturno, but on behalf of
JD(NY)-36-15
10
Brown and other instructors as well (Tr. 155–156, 203, 208–209). The evidence further
demonstrates, as discussed in the following section, that Saturno and Nestor Gonzalez had
been raising issues regarding pension and annuity fund contributions applicable to the part-time
instructors for several years. Thus, I find that Saturno was showing Staunton Spencer’s letter in
order to confirm the existence of a participation agreement ostensibly applicable to both his and 5
Brown’s employment, and to question Staunton as to the agreement’s terms.
Other testimony of Staunton’s regarding the October 23 meeting also leads me to credit
Brown and Saturno’s version. For example, Staunton testified that Brown and Saturno told her
they “were unclear about their job title and job description,” and wanted more information “about 10
what the expectations were for instructors” (Tr. 247–248). I find this testimony inherently
implausible given that Brown and Saturno had worked as Building Works instructors for at least
13 years. Indeed, it is undisputed that prior to any discussion of Brown and Saturno’s terms and
conditions of employment, Staunton had asked them for a detailed description of the shop class
they routinely taught together. It is therefore significantly more likely that, as Brown and Saturno 15
testified, they told Staunton that they were unclear as to their wages, benefits, and other terms
and conditions of employment, and whether their employment was covered by an agreement
such as the participation agreement referred to in Spencer’s letter.12
Evidence regarding events following the October 23 meeting also mitigates in favor of 20
crediting Brown and Saturno’s testimony regarding the meeting itself. Staunton testified that
after the meeting she spoke to and emailed Respondent’s director of human resources, Valerie
Burett, in order to formulate a job description for the part-time instructors13 (Tr. 254–255).
However, her email to Burett describes Brown and Saturno’s job functions in detail, as well as
their hours, rate of pay, benefit contributions, and the manner in which Respondent addressed25
their claims for unemployment benefits (R.S. Exh. 11). The email is therefore more consonant
with an inquiry as to the issues that Brown and Saturno claimed that they raised during the
meeting than with a request to prepare a job description which for all intents and purposes is
contained in the email itself. Brown and Saturno’s account of the meeting is further supported
by evidence establishing that Burett issued Labor Wage Theft Prevention Act notices which 30
were sent to Brown and Saturno in early 2014 (GC Exh. 26; Tr. 368–369, 388–389). Indeed,
Staunton testified that in May 2014, Burett contacted her to obtain Saturno’s address, because
Saturno had yet to return a signed copy of the LWTPA form (Tr. 398–399). All of this evidence
supports the conclusion that during the October 23 meeting, Brown and Saturno inquired as to
the LWTPA form and the information it contains—their regular and overtime pay rates and pay 35
schedule—as opposed to their job descriptions, as Staunton contended.

For all of the foregoing reasons, the evidence establishes that Brown and Saturno were
engaged in protected concerted activity during their October 23 meeting with Staunton.
40
3. Statements evincing animus
I find that the record contains sufficient evidence of animus on the part of Respondent
toward Brown and Saturno’s protected concerted activities to establish a prima facie case. In
particular, I find that Staunton, McNamara, and Killinger all made statements evincing animus 45

12 Even if, as Staunton testified, Brown and Saturno’s questions had been limited to their job
titles and descriptions, I would find that they were engaged in protected concerted activity during
the October 23 meeting. See Temecula Mechanical, Inc., 358 NLRB No. 137, at p. 5–6 (2012)
(employees’ contacts with the union regarding their wage rates and job duties protected).
13 Burett did not testify.
JD(NY)-36-15
11
against inquiries and complaints made by Brown, Saturno, and other instructors regarding their
wages and benefits. I further find, as discussed in the subsequent section, that the timing of
Respondent’s refusal to assign Brown and Saturno the shop and field class in the 2013–2014
New Jersey Building Works cycle, as well as other factors, support a finding that Respondent’s
decision was unlawfully motivated.5
As discussed previously, I generally credit Brown and Saturno’s mutually corroborative
testimony regarding their October 23 meeting with Staunton. I therefore credit their testimony
that Staunton told them that Saturno had made “a lot of complaints” or “had asked questions
before” and was “being watched carefully.” The evidence establishes that Saturno had in fact 10
“asked questions before,” in that he had made inquiries with Spencer regarding his pension
benefits. Killinger likewise testified, as discussed below, that Saturno had made “inquiries”
regarding his working conditions (Tr. 339). As a result, the contextual evidence supports a
credibility resolution in favor of Brown and Saturno with respect to the statements they attributed
to Staunton during the October 23 meeting, which evince Respondent’s displeasure with 15
Saturno’s having raised issues regarding his terms and conditions of employment.
I likewise credit Brown and Saturno’s mutually corroborative testimony regarding
McNamara’s statements during an October 2012 conversation that Nestor Gonzalez would no
longer be working for Respondent because he had “ruffled feathers” by making “too many 20
complaints about his pension and benefit hours,” so that Spicer had “had it with him.”
McNamara testified that she did not recall Brown or Saturno saying anything during this
conversation, and otherwise denied making such statements (Tr. 354–355). Such denials are
not as a general matter a compelling rebuttal to detailed testimony regarding the conversation.
See, e.g., Laser Tool, Inc., 320 NLRB 105, 109 (1995). In addition, I find it logical that Brown 25
and Saturno would, as they both testified, ask whether they could contact Gonzalez to be a third
field class instructor immediately after McNamara told them they were not authorized to bill for
overtime. McNamara’s rejoinder that Gonzalez had “ruffled feathers” by making “too many
complaints about his pension and benefit hours,” such that Spicer had “had it” with him, is
consistent with Staunton’s assertion that Saturno was “being watched carefully” because he had 30
“made complaints” or “asked questions” in the past.
Finally, I credit Brown’s testimony that during a conversation with Killinger in the winter
of 2012, Killinger told him that he had heard from Spicer that Saturno had been “making too
many complaints about…wages and hours and benefits,” particularly to the benefit fund, which 35
were “making it very uncomfortable for [Killinger] and for the Labor Technical College.” Killinger
testified that he could not recall any specific statements from this conversation, but admitted that
he initiated it specifically to ask Brown about Saturno’s “accusations.” He also admitted that his
contention that he did not tell Brown during their conversation that Saturno had made
“complaints” was engendered by his own theoretical distinction between “complaints” and 40
“inquiries”14 (Tr. 329–330). Whether characterizing Saturno’s statements as “complaints” or
“inquiries,” however, Killinger admitted that Saturno had raised issues with the benefit fund in
particular, and that they involved his working conditions (Tr. 338–339).15 Killinger was obviously

14 Killinger’s testimony in this regard echoes Respondent’s statement of position submitted to
the Region during the investigation of the charges, which argues that Brown and Saturno’s
activities were not concerted because they made “inquiries” as opposed to “complaints” about
their terms and conditions of employment (GC Exh. 25, p. 7–9). This further undermines the
probative value of Killinger’s testimony.
15 They thus constituted protected concerted activity. See Air Contact Transportation, Inc.,
340 NLRB 688 (2003), enfd., 403 F.3d 206 (4th Cir. 2005) (employee’s posing questions during
JD(NY)-36-15
12
quite upset regarding Saturno’s activities, and freely admitted that he had approached Brown “to
see if [Brown] had some sort of insight,” resulting in, as Killinger testified, Brown’s agreement
“that he would just be on the lookout” where Saturno was concerned (Tr. 328–329). For all of
the foregoing reasons, I credit Brown’s account of this conversation.16
5
I further find that McNamara and Killinger’s statements in October 2012 and the winter of
that year are sufficiently connected with Brown and Saturno’s statements to Staunton during
their October 23, 2013 meeting to merit consideration in determining whether Respondent’s
failure to assign Brown and Staunton the shop and field classes in the 2013–2014 New Jersey
Building Works cycle was unlawfully motivated. Although McNamara and Killinger’s remarks 10
took place 1 year and a number of months prior to the late fall of 2013, respectively, both
conversations addressed the instructors’ repeated questions and complaints regarding their
wages and benefits. McNamara and Killinger also both expressed Respondent’s dissatisfaction
with Gonzalez and Saturno’s activities, stating that they had “ruffled feathers” by making “too
many complaints about his pension and benefit hours,” causing a situation that was “very 15
uncomfortable for [Killinger] and for the Labor Technical College,” such that Spicer had “had it”
with such conduct. These statements from 2012, which address the same conduct and one of
the same instructors, Saturno, involved in the events of 2013, are thus pertinent to the existence
of unlawful motive. See Vision of Elk River, Inc., 359 NLRB No. 5, at p. 5–6 (2012), affd. 361
NLRB No. 155 (2014) (manager’s 2007 statements evincing antiunion animus pertinent to his20
motivation in making 2009 layoffs, where union organizing campaign remained active).
For all of the foregoing reasons, I find that General Counsel has established a prima
facie case that Brown and Saturno were not assigned to teach during the 2013–2014 New
Jersey Building Works cycle in retaliation for their protected concerted activity.1725
30

meeting “on behalf of himself and other coworkers” protected).
16 I credit Saturno’s testimony that in 2011 he and Gonzalez questioned Spencer as to
whether they were receiving pension credits, and that Killinger later asked Gonzalez to “follow
the chain of command” with questions regarding compensation (Tr. 202–204). Killinger’s denial
regarding this incident was focused on whether his interactions with the instructors were hostile
(Tr. 324–325). While this testimony further establishes Saturno and Gonzalez’ history of raising
issues related to the employment of the part-time instructors, Killinger’s statement was focused
on Gonzalez’ having failed to inform him personally regarding his questions, as opposed to
expressing dismay that Gonzalez was making inquiries in the first place. I therefore find that it is
less probative in terms of evincing animus in connection with Respondent’s failure to assign
Brown and Saturno to teach the shop and field classes in New Jersey Building Works cycle in
2013–2014.
17 Respondent’s assignment of Brown and Saturno to teach at a Tryout in March 2014 does
not preclude a finding that its failure to assign them to teach the shop and field classes in the
2013–2014 New Jersey Building Works cycle was motivated by animus against their protected
concerted activity. Respondent assigned Brown and Saturno to teach the March 2014 Tryout
after they filed their initial unfair labor practice charges in this matter, on January 28, 2014, and
January 29, 2014, respectively (GC Exh. 1(a-d)).
JD(NY)-36-15
13
4. Other evidence of animus and respondent’s proferred reasons for the
assignment of Instructor work during the 2013–2014 New Jersey Building Works cycle
The timing and sequence of events involved in Respondent’s decision to assign Levisay
and Russo to teach the shop and field class in the 2013–2014 New Jersey Building Works cycle 5
in lieu of Brown and Saturno also indicate that Respondent was motivated by animus toward the
latter’s protected concerted activity. The evidence establishes that after their meeting on
October 23, Staunton sent Brown and Saturno a detailed schedule for the upcoming New
Jersey Building Works cycle, as was customary for the instructors prior to beginning a program
in which they would be teaching. Two days later, Staunton emailed Brown and Saturno that 10
“We look forward to another successful class,” implying to them, given their past experience of
teaching every class for which they had participated in the Tryouts, that they would be teaching
it (GC Exh. 18). However, Levisay testified that sometime in November 2013, Staunton
contacted him about teaching the field class, which indicates that Staunton had by then
determined that Brown and Saturno would not be teaching in the upcoming New Jersey Building 15
Works cycle (Tr. 136–138; GC Exh. 5).18 Respondent’s assignment of Levisay for the field class
instead of Brown and Saturno thus took place within weeks of the October 23 meeting with
Staunton during which they engaged in protected concerted activity. It is well-settled that
adverse employment action occurring at a time proximate to an employee’s protected activity
constitutes evidence of unlawful motivation. See, e.g. Relco Locomotives, Inc., 358 NLRB No. 20
37, slip op. at 14 (2012) (timing of employee discipline, less than 2 months after employer
learned of protected activities and 2 weeks following union election, evinces unlawful
motivation); Sears Roebuck & Co., 337 NLRB 443, 451 (2002) (timing of discharge, “several
weeks” after employer learned of protected concerted activities, indicative of retaliatory motive).
Furthermore, the single intervening event established by the record between Staunton’s late 25
October emails anticipating that Brown and Saturno would be teaching the shop and field
classes and her November contact with Levisay—her interactions with Burett regarding Brown
and Saturno’s terms and conditions of employment—was engendered by Brown and Saturno’s
protected concerted activity. This sequence of events indicates that Respondent’s failure to
assign Brown and Saturno to teach the New Jersey shop and field classes was unlawfully 30
motivated.
The evidence also establishes that in assigning Levisay and Russo to teach the shop
and field portions of the New Jersey cycle, as opposed to Brown and Saturno, Respondent
suddenly deviated from several long-established practices in its assignment of part-time 35
instructors to Building Works programs, and its assignment of Brown and Saturno in particular.
As discussed above, the evidence establishes that Brown and Saturno had taught the shop and
field courses in both the New York and New Jersey Building Works cycles for approximately 13
years. As Killinger testified and as confirmed to some extent by Brown and Saturno’s
timesheets, the two had worked “side by side in the context of [the Building Works] program” for 40
a number of years (Tr. 329). Brown and Saturno’s uncontradicted testimony further establishes
that every time they taught a Tryout for a Building Works cycle, they were assigned to teach in
the cycle itself. Respondent’s abrupt departure from these long-standing practices for the
2013–2014 New Jersey Building Works cycle is compelling evidence of unlawful motive absent

18 Subsequently on December 2, Levisay emailed Staunton stating that he had heard a
conversation between Brown and Saturno which indicated that he “would not be needed” for the
field portion of the New Jersey cycle (GC Exh. 5, p. 1). In her response, Staunton stated that
Respondent had selected Levisay for the field portion of the New Jersey cycle, in West Orange,
and that one other instructor would also be teaching (GC Exh. 5, p. 2).
JD(NY)-36-15
14
a persuasive and substantiated explanation. See, e.g. Murtis Taylor Human Services Systems,
360 NLRB No. 66, slip op. at fn. 3, 15 (2014); Relco Locomotives, Inc., 358 NLRB No. 37, at 14.
I find that Respondent has not offered cogent explications, supported by probative
evidence, for its selection of Levisay and Russo in lieu of Brown and Saturno, or for the process 5
by which it made its determinations. Respondent argues that the 2013–2014 New Jersey cycle
was the first Building Works program that Staunton was responsible for staffing, and the
evidence does not contradict this assertion. Respondent also contends that Staunton herself
made the decision to assign Levisay and Russo, as opposed to Brown and Saturno, to teach
the shop and field classes, without advice from other managers. However, the fact that the 10
2013–2014 New Jersey cycle was the first that Staunton staffed makes it more likely that
Staunton would consult with other management, a number of whom had expressed dismay at
Brown and Saturno’s protected activity, regarding the assignment of instructors. Indeed, the
evidence establishes, as discussed infra, that Staunton presented a draft of her email informing
Saturno that he would not be assigned to teach during the New Jersey cycle to McNamara 15
before finalizing and sending it to Saturno himself. In addition, I find it implausible that, in the
context of Staunton’s own lack of experience, she would assign instructors with substantially
less experience to teach the first cycle for which she was responsible when Brown and Saturno
were available. Indeed, the evidence establishes that weeks prior to assigning instructors for
the New Jersey cycle, Staunton asked Brown and Saturno, and not Levisay, Russo, or any 20
other instructor, for a detailed, day-to-day description of the shop class. Therefore, she was
aware of, and actually sought to utilize, their superior knowledge and experience. If, as
Respondent claims, the New Jersey cycle constituted her first assignment of instructors to a
Building Works program, it simply does not make sense that Staunton would pass over the two
instructors she had recently asked for a comprehensive description of one of the key 25
components of that program in favor of instructors with significantly less experience. This raises
the inference that her failure to assign Brown and Saturno was informed by the sentiments of
other managers.
Respondent also contends that Staunton in making assignments was relying on an 30
August 8 email sent to her by Killinger, which listed Building Works instructors as
“interchangeable.” However, the evidence overall does not support this characterization of the
document’s import. First of all, although Killinger’s email states that “Per Elly [Spicer], full-time
always gets the priority,” Staunton assigned two part-time instructors, Levisay and Russo, to
teach the New Jersey cycle, apparently disregarding that explicit instruction (R.S. Exh. 8). 35
Furthermore, Brown and Saturno’s names appear first and second under the heading of part-
time instructors, with Russo’s name third and Levisay’s fifth. Therefore, to the extent that
Staunton was seeking guidance in assigning instructors, Killinger’s August 8 email does not
elucidate her reasoning in the manner that Respondent asserts.
40
More probative in terms of guidance that Staunton received from other managers are her
emails pertinent to informing Brown and Saturno that they would not be teaching the shop and
field classes. The record establishes that 1 ½ hours prior to responding to Saturno’s December
12 email inquiring about the New Jersey shop and field classes, Staunton drafted a response
and sent it to McNamara (GC Exh. 24; R.S. Exh. 13). The wording of Staunton’s later email to 45
Saturno is slightly different (GC Exh. 24; R.S. Exh. 13). Although Staunton and McNamara both
testified, with Staunton describing events occurring on December 12 itself, Respondent made
no attempt to elucidate the details of the process reflected by the documentary evidence. This
indicates that, contrary to McNamara’s testimony, Staunton and McNamara discussed the fact
that Saturno would not be teaching during the New Jersey cycle on at least one occasion (Tr. 50
356). It is also more plausible that, given that Staunton had only recently become grants
JD(NY)-36-15
15
manager, she would be interested in consulting with other managers with a lengthier period of
experience prior to passing over a long-time instructor, for the reasons discussed previously.
And in fact, Staunton testified that she met with the program coordinators and McNamara on
December 12 regarding the postponement of the New Jersey cycle, and that such scheduling
issues would typically be discussed with Spicer (Tr. 267–269, 281–283). As a result, for all of 5
the foregoing reasons the evidence strongly indicates that Staunton interacted with McNamara
and Spicer—both of whom had expressed dissatisfaction with Brown and Saturno’s protected
concerted activity—regarding which instructors would be assigned to teach the shop and field
classes for the 2013–2014 New Jersey Building Works cycle.
10
Furthermore, I find that Brown and Saturno were particularly relied upon as instructors in
the Building Works program, despite Respondent’s contention that there was no formal job title
of “primary” or “lead” instructor. Although Killinger testified to this effect, a March 13 email he
sent to Brown and Saturno regarding shop and field classes in April refers to an additional
instructor as someone “to assist” with the field class, and solicits Brown and Saturno’s input so 15
that “any needed changes” can be implemented in advance of the class’ inception (GC Exh. 9).
On June 4, program manager Higbee directed Brown to “organize” with the other instructors
“how many” Carpenter Awards would be given to students in a recently completed Building
Works program, and which students would receive awards (GC Exh. 13). In addition, there is
no evidence that when Brown referred to himself and Saturno as “primary instructors” in a 20
February 5 e-mail to Higbee, any of Respondent’s managers disputed this characterization (GC
Exh. 12). Finally, as discussed above, Staunton approached Brown and Saturno, and not any
of the other instructors, to prepare a detailed, comprehensive description of the shop class they
taught during Building Works programs. Regardless of the formal job titles involved, there is no
evidence that Levisay and Russo operated in any comparable capacity. Brown and Saturno’s 25
tenure and prominence as instructors therefore makes Staunton’s selection of Levisay and
Russo for the first Building Works cycle under her individual purview even more dubious,
mitigating in favor of the conclusion that the decision was unlawfully motivated.
Furthermore, the reasons asserted by Respondent for Staunton’s selection of Levisay 30
and Russo for the shop and field classes of the New Jersey Building Works cycle are simply not
supported by probative evidence. Respondent argues in its Post-Hearing Brief that Staunton
assigned Levisay for the classes because Everett Kilgo, a program coordinator, informed her
that Levisay had taught in New Jersey Building Works cycles in the past. (Posthearing brief for
Respondent at 17, 25; Tr. 261). Respondent argues that there is no evidence that Kilgo 35
exhibited any animus toward Brown and Saturno’s protected activity, indicating that his
recommendation of Levisay, ultimately effectuated by Staunton, was not unlawfully motivated.
(Posthearing brief for Respondent at 25–26. )
This argument is not plausible for numerous reasons. First of all, Respondent did not 40
call Kilgo as a witness to elucidate his recommendation of Levisay to Staunton, and did not
explain its failure to present him. It is undisputed that Kilgo remains employed by Respondent,
and while Respondent refused to stipulate that Kilgo is a supervisor within the meaning of
Section 2(11) of the Act, there is significant evidence of supervisory authority,19 and

19 Brown and Saturno both testified that Kilgo had a lengthy tenure as a program manager
with Building Works, and that they had daily contact with him while teaching in New Jersey
regarding student performance, grades, and problems (Tr. 374, 378, 389–391). Staunton
confirmed that Kilgo manages the day-to-day operations for the New Jersey Building Works
program cycles (Tr. 240–241). Brown also testified that Kilgo created and approved forms for
ordering supplies and materials, and on one occasion docked him 2 hours pay (Tr. 377–381).
JD(NY)-36-15
16
Respondent’s counsel described him as “on the cusp” of supervisory status (Tr. 360–361). In
any event, given Staunton’s testimony that she followed Kilgo’s recommendation with respect to
the assignment of Levisay in lieu of either Brown or Saturno, I find it appropriate to draw an
adverse inference from Respondent’s failure to call him as a witness. See, e.g., Parksite Group,
354 NLRB 801, 805–806 (2009).20 I therefore find it appropriate to assume that had Kilgo 5
testified, his testimony regarding the selection of Levisay instead of Brown or Saturno to teach
the shop and field portions of the 2013–2014 New Jersey Building Works cycle would not have
supported Respondent’s assertions.
This is particularly the case given the questionable nature of Kilgo’s alleged rationale for 10
recommending Levisay, his work during New Jersey Building Works cycles. Staunton testified
that Kilgo recommended Levisay because Levisay “was an instructor who they often worked
with in the New Jersey training cycle” (Tr. 261). Similarly, Respondent stated in its first position
paper submitted during the investigation that Levisay “was regularly assigned to Building Works
New Jersey projects” (GC Exh. 25(a), p. 6). However, the documentary evidence establishes 15
that Brown and Saturno both taught in New Jersey, and did so much more frequently than did
Levisay.21 Indeed, documentary evidence confirms Brown’s testimony that 2 years earlier he
had taught a shop class with Levisay at the very building site used for the 2013–2014 New
Jersey Building Works field training22 (Tr. 111–113; GC Exh. 7). Perhaps tellingly, in a second
position statement submitted to the Region almost 6 months later, Respondent asserted that 20
Levisay became involved in the 2013–2014 New Jersey Building Works cycle in the following
manner:
The field work was to be conducted at a West Orange, New Jersey site, and at
that time Steve Levisay commuted through New Jersey. Because it was 25
convenient for him, he was asked to visit and scout the suitability of the site for
the Field Work class. Levisay was scheduled to be the Instructor for the
Carpentry Shop Class and also to be one of the Field Work Instructors.

20 In Parksite Group, the complaint alleged that the Respondent, a successor employer,
unlawfully refused to hire its predecessor’s employees in order to avoid an obligation to bargain,
in violation of Sections 8(a)(5) and (3) of the Act. 354 NLRB at 804. Respondent’s manager
responsible for making all of the hiring determinations, Coulter, testified at the hearing that he
declined to hire nine of the ten predecessor employees based on the recommendation of a local
manager, LaRusso, who constituted the sole source of information regarding the predecessor
employees’ work performance. Parksite Group, 354 NLRB at 803–805. The Board held that in
these circumstances the ALJ appropriately drew an adverse inference from Respondent’s
failure to call LaRusso, who remained employed by Respondent at the time of the hearing, to
testify. Parksite Group, 354 NLRB at 803.
21 Time sheets submitted by Brown, Saturno and Levisay support Brown and Saturno’s
testimony that they regularly taught shop and field classes during New Jersey Building Works
cycles (GC Exhs. 7, 8, 22, 23, 26). They also establish that Brown and Saturno had taught
during New Jersey cycles substantially more frequently than had Levisay (GC Exhs. 7, 8, 22,
23, 26; R.S. Exhs. 2–4). Finally, they confirm Brown, Saturno, and Levisay’s testimony that
Levisay and Russo almost always served as the third instructor in shop and field classes with
Brown and Saturno (Tr. 201–202).
22 According to Brown’s uncontradicted testimony, Saturno did not teach this field class
because he was teaching a blueprint reading course for a New York Building Works cycle at the
time (Tr. 113).
JD(NY)-36-15
17
(GC Exh. 25(b), p. 8.) Similarly, in his opening statement, Respondent’s counsel stated that
Staunton found the assignment of Levisay optimally efficient because he “lives in Pennsylvania
and is a New Jersey local Union Carpenter and was identified with work in New Jersey” (Tr. 23).
These shifting reasons for the assignment of Levisay to teach the shop and field classes in the
2013–2014 New Jersey Building Works cycle are in and of themselves evidence of unlawful 5
motivation. See, e.g., Airport 2000 Concessions, LLC, 346 NLRB 958, 978 (2006) (“Shifting
defenses have been long held by the Board to signify the proffered reason for an action is
pretextual”); Black Entertainment Television, 324 NLRB 1161 (1997). Thus, their contradictory
nature would have made Kilgo’s testimony all the more critical, and their legally suspect
character in the context of the Wright Line analysis confirms that drawing an adverse inference 10
based upon Respondent’s failure to present Kilgo’s testimony is appropriate.
Respondent’s evidence with respect to its selection of Russo is similarly problematic. In
its opening statement and Posthearing brief, Respondent contends that Russo was assigned to
teach the shop and field classes during the New Jersey Building Works cycle because he was 15
already teaching the same group of students in safety and health class, and was therefore
familiar with them (Tr. 23; GC Exh. 25(a), p. 6). Staunton was asked whether Russo had any
involvement in the cycle other than teaching shop and field classes, and responded that he
taught the OSHA 10 class (Tr. 262). Asked whether she spoke with Russo regarding teaching
the shop or field classes, she stated that she had done so in December 2013 (Tr. 262). 20
However, she provided no concrete reason during her testimony for having selected him for the
shop and field classes in the New Jersey Building Works cycle. In addition, Brown and Saturno
were also familiar with the group of students participating in the 2013–2014 New Jersey Building
Works cycle from their teaching the Tryout; in fact, if Respondent’s typical practices had been
followed Brown and Saturno would have evaluated the candidates at the Tryout to determine 25
which should be selected for the Building Works cycle itself (Tr. 216–217). The evidence also
establishes that Saturno taught blueprint reading during the 2013–2014 New Jersey cycle, to
the same group of students (Tr. 189; R.S. Exh. 12). As a result, there is little basis to conclude
that Brown and Saturno lacked familiarity with the students as compared with Russo.
Furthermore, the evidence establishes that in the past, Brown and Saturno had taught shop and 30
field classes during cycles where Russo had previously taught health and safety to the same
group of students. (GC Exh. 4, 7, 22). Respondent offered no reason for its deviation from this
practice, either.
In addition, Respondent offered shifting defenses of its selection of Russo in its two 35
position papers submitted to the Region. As discussed above, in its first position paper,
Respondent contended that Russo was selected based upon his familiarity with the students in
the 2013–2014 New Jersey Building Works cycle. In its second position paper, Respondent
contended that Russo was selected for the shop class because when Respondent decided that
a second shop instructor was needed Russo “had already been scheduled for the field work” 40
(GC Exh. 25(b), p. 8). This assertion elides any rationale for having chosen Russo, as opposed
to Brown or Saturno, for the field work in the first place, and is not persuasive. And, as
discussed above, such shifting defenses constitute evidence of unlawful motivation.
For all of the foregoing reasons, General Counsel has established a prima facie case 45
that Brown and Saturno were not assigned to teach the shop and field classes in the 2013-2014
New Jersey Building Works cycle in retaliation for their protected concerted activity. The
evidence fails to substantiate the legitimate, nondiscriminatory reasons asserted by Respondent
for its actions. As a result, the evidence establishes that Respondent’s failure to assign Brown
and Saturno to teach the shop and field classes in the 2013–2014 New Jersey Building Works 50
cycle violated Section 8(a)(1) of the Act.
JD(NY)-36-15
18
CONCLUSIONS OF LAW
1. Respondent New York City District Council of Carpenters Apprenticeship, Journeyman,
Retraining, Educational, and Industry Fund is an employer engaged in commerce within the 5
meaning of Section 2(2), (6), and (7) of the Act.
2. By failing and refusing to assign Dennis Brown and Richard Saturno to teach the shop and
field classes in the 2013–2014 New Jersey Building Works training cycle in retaliation for
their protected concerted activity, Respondent violated Section 8(a)(1) of the Act.10
3. The above violation is an unfair labor practice affecting commerce within the meaning of
Sections 2(6) and (7) of the Act.
REMEDY15
Having found that Respondent engaged in an unfair labor practice, I shall order it to
cease and desist from such conduct and to take certain affirmative action designed to effectuate
the policies of the Act.
20
The 2013–2014 New Jersey Building Works training cycle ended in January 2014.
General Counsel therefore seeks a make-whole remedy, including backpay and daily compound
interest, as well as a notice posting. I find this relief to be appropriate, and will order that
Respondent make Brown and Saturno whole for any loss of earnings and other benefits
suffered as a result of Respondent’s discriminatory refusal to assign them to teach the shop and 25
field classes of the 2013–2014 New Jersey Building Works training cycle. Backpay shall be
computed in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010). I shall also order Respondent to
compensate Brown and Saturno for the adverse tax consequences, if any, of receiving a lump-30
sum backpay award and to file a report with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters. Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014). Respondent shall be required to remove from its files any
and all references to its unlawful refusal to assign Brown and Saturno to teach the shop and
field classes in the 2013–2014 New Jersey Building Works training cycle, and to notify Brown 35
and Saturno that this has been done and that the refusal to assign them this work will not be
used against them in any way.
On these findings of fact and conclusions of law, and on the entire record herein, I issue
the following recommended2340
45

23 If no exceptions are filed, as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be waived for all
purposes.
JD(NY)-36-15
19
ORDER
The Respondent, New York City District Council of Carpenters Apprenticeship,
Journeyman, Retraining, Educational, and Industry Fund, its officers, agents, successors, and
assigns, shall5
1. Cease and desist from
(a) Refusing and failing to assign instructors to teach shop and field classes in its
Building Works training cycles in retaliation for their protected concerted 10
activities.
(b) In any like or related manner, interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
15
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make whole Dennis Brown and Richard Saturno for any loss of earnings and
other benefits suffered as a result of the discriminatory refusal to assign them to
teach the shop and field classes in the 2013–2014 New Jersey Building Works 20
training cycle, in the manner set forth in the remedy section of this decision.
(b) Compensate Dennis Brown and Richard Saturno for the adverse tax
consequences, if any, of receiving a lump-sum backpay award and file a report
with the Social Security Administration allocating the backpay award to the 25
appropriate calendar quarters.
(c) Within 14 days from the date of this Order, remove from its files any and all
references to its unlawful refusal to assign Dennis Brown and Richard Saturno to
teach the shop and field classes in the 2013–2014 New Jersey Building Works 30
training cycle, and within 3 days thereafter, notify them in writing that this has
been done and that the unlawful refusal to assign them this work will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the 35
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the terms of this Order.40
(e) Within 14 days after service by the Region, post, at its facility in New York, New
York, copies of the attached notice marked “Appendix.”24 Copies of the notice,
on forms provided by the Regional Director for Region 2, after being signed by
the Respondent’s authorized representative, shall be posted by the Respondent 45
and maintained for 60 consecutive days in conspicuous places, including all

24 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)-36-15
20
places where notices to employees are customarily posted. In addition to
physical posting of paper notices, the notices shall be distributed electronically,
such as email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the 5
notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current
employees employed by the Respondent at any time since January 15, 2014.10
(f) 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.
15
Dated, Washington, D.C., July 30, 2015
20
__________________________
Lauren Esposito
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefits and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to assign instructors to teach shop and field classes in Building Works
training cycles in retaliation for their protected concerted activities.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL make whole Dennis Brown and Richard Saturno for any loss of earnings and other
benefits suffered as a result of the discrimination against them, with interest.
WE WILL compensate Dennis Brown and Richard Saturno for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and WE WILL file a report with the Social Security
Administration allocating the backpay award to the appropriate calendar quarters.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful refusal to assign Dennis Brown and Richard Saturno to teach the shop and field
classes in the 2013–2014 New Jersey Building Works training cycle, and WE WILL, within 3
days thereafter, notify them in writing that this has been done and that the unlawful refusal to
assign them this work will not be used against them in any way.
NEW YORK CITY DISTRICT COUNCIL OF
CARPENTERS APPRENTICESHIP,
JOURNEYMAN, RETRAINING, EDUCATIONAL,
AND INDUSTRY FUND
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Suite 3614
New York, NY 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0346
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-120698 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0300.