North American Dismantling Corp.

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1557 (N.L.R.B. 2000)

NORTH AMERICAN DISMANTLING CORP. 1557
North American Dismantling Corp., North American
Demolition Corp. and Jeffrey G. Powell and
Robert W. Giltrop and Jayson Zeitz. Cases 7–
CA–39923, 7–CA–40151(1), and 7–CA–40151(2)
August 31, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On July 10,1998, Administrative Law Judge Leonard
M. Wagman issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
The Respondent excepts to the judge’s finding that the
discharges of Jeffrey G. Powell, Robert W. Giltrop, and
Jayson Zeitz violated Section 8(a)(1) of the Act. The
Respondent contends that these discriminatees engaged
in an economic strike when they walked off the job and
that they were not discharged by the Respondents. Con-
trary to the Respondent and our dissenting colleague and
for the following reasons, we agree with the judge that
Powell, Giltrop, and Zeitz were unlawfully discharged
for engaging in protected concerted activity within the
meaning of Section 7 of the Act.
The relevant facts are set forth in detail in the judge’s
decision. In summary, they are as follows.
The Respondent, North American Demolition Corp.
(Demolition) and Respondent, North American Disman-
tling Corp. (Dismantling), are construction companies
engaged in the performance of demolition work. Rick
Marcicki is the owner and president of both companies.
Demolition is a unionized company which has collective-
bargaining agreements with various locals of the Labor-
ers’ Union in Michigan and Ohio. Under Demolition’s
union contracts, the hourly rate for laborers is in excess
of $17 an hour. Dismantling is nonunion and pays its
laborers at a substantially lower rate.
On May 8, 1997, while they were working for Re-
spondent Demolition on a union job at a site called Bots-
ford Commons, employees Powell, Giltrop, and Zeitz
were informed by their supervisor, Daniel Borashko, that
they were getting a new assignment and were to report
the following morning to a different jobsite in Lake An-
gelus, Michigan. As found by the judge, Borashko did
not tell the crew that the job would be nonunion and in-
deed deflected specific inquiries as to the status of the
job.3

1 The Respondent has accepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We have modified the judge’s Order to conform to the conditional
notice posting provisions set forth in Excel Container, 325 NLRB 17
(1997).
Based on his credibility resolutions, the judge found
that on the morning of May 9, when Powell, Giltrop, and
Zeitz arrived at the job, they surmised that the job was
nonunion and that they would be paid less than the union
scale. Borashko continued to claim uncertainty as to the
status of the job. The employees made several calls to
union offices in Ann Arbor and the Pontiac districts that
exercised jurisdiction over union jobs in those areas. The
Ann Arbor local advised them to try and negotiate a un-
ion pay scale. The Pontiac local advised them to walk
off the job if their employer refused to pay them the un-
ion scale. Late that morning, they informed Borashko
that they wanted to telephone Marcicki, the owner, but
Borashko informed them that this was not necessary and
that he could handle their questions. Powell, speaking
for the group, informed Borashko that the Pontiac local
had told them to walk off the job if the Respondent re-
fused to pay them union scale. A discussion ensued be-
tween Borashko and the employees regarding the issue of
union versus nonunion pay, with Borashko finally refus-
ing to pay union scale. Borashko then stated that if the
employees did not like that, they should leave and find
another job.
Based on this credited record testimony, the judge
found, and we agree, that these employees intended to
stage a walkout, but that Borashko averted this prospect
by “rejecting the three employees’ demand for a higher
wage and telling them that if they did not accept the
lower wage scale, they should leave and find another
job.” We agree with the judge’s conclusion that “Powell,
Giltrop, and Zeitz reasonably interpreted Borashko’s
remarks as their conditional discharge. That is, they
were fired unless they were willing to accept the lower
nonunion wage scale.”
The Board has held that the fact of discharge does not
depend on the use of formal words of firing. Hale Mfg.
Co., 228 NLRB 10, 13 (1977), enfd. 570 F.2d 705 (8th
Cir. 1978). It is sufficient if the words or action of the
employer “would logically lead a prudent person to be-
lieve his [her] tenure has been terminated.” NLRB v.
Trumbull Asphalt Co., 327 F.2d 841, 843 (8th Cir. 1964).
Here the Respondent, having been informed by the em-
ployees that they were on the verge of a walkout in sup-
port of their demand for union wages, told them that
unless they were willing to work on the terms the em-
ployer was offering, they would have to leave and find
another job. We agree with the judge that the statement
3 At the time of the events at issue, Powell was a member of the De-
troit Laborers local and Giltrop and Zeitz were members of the Ann
Arbor Laborers local. The record reflects that all three had in the past
worked both on union jobs for Demolition and on nonunion jobs for
Dismantling.
331 NLRB No. 163
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1558
was reasonably interpreted by the employees to mean
that if they walked off the job they would be discharged.4
We also agree that the employees were in fact dis-
charged when they elected to walk off the job rather than
accept the employer’s terms. In this regard, we note, as
did the judge, not only the statements made by Borashko
at the time of the walkout, but also that the Respondent
did nothing after the events in question to dispel the em-
ployees’ reasonable conclusion that they had been dis-
charged. Indeed, at a hearing before the Michigan Em-
ployment Security Board of Review regarding Powell’s
claim for unemployment, Marcicki testified that Powell
had been discharged and that one of the reasons for his
discharge was that he incited other employees to walk off
the job and refuse to work. Powell was also told when
he called on May 22 to inquire about work that as far as
Maricki was concerned, he no longer had a job with the
Respondent.
Our dissenting colleague argues that because the Re-
spondent gave the three employees a choice between
staying and working at the nonunion wage scale or find-
ing other employment, its actions were not unlawful. We
reject that contention. In any situation in which employ-
ees are considering whether to strike in support of a de-
mand for improved wages or working conditions, they
must weigh that option against the alternative of staying
on the job and continuing to work on the employer’s
terms. The point is, however, that if they decide they are
unwilling to work on the terms the employer is offering,
they have a statutorily protected right to engage in a con-
certed refusal to work without losing their status as em-
ployees and without being subject to discharge or threats
of discharge. The Respondent here denied the employ-
ees that right by telling them that their only option was to
accept the Respondent’s terms or find other work and
then discharging them when they walked off the job.

4 The judge’s focus on whether the employees reasonably believed
they would be discharged if they walked off the job is consistent with
well-established Board and court precedent. As the Board has stated:
In determining whether or not a striker has been discharged, the
events must be viewed through the striker’s eyes and not as the
employer would have viewed them. The test to be used is whether
the acts reasonably led the strikers to believe they were discharged.
If those acts created a climate of ambiguity and confusion which
reasonably caused strikers to believe that they had been discharged
or, at the very least, that their employment status was questionable
because of their strike activity, the burden of the results of that am-
biguity must fall on the employer. [Citations omitted.]
Apex Cleaning Service, 304 NLRB 983 fn. 2 (1991), quoting from
judge’s decision in Brunswick Hospital Center, 265 NLRB 803, 810
(1982). Accord: NLRB v. Cement Masons Local 555, 225 F.2d 168,
172 (9th Cir. 1955); NLRB v. Central Oklahoma Milk Producers Assn.,
285 F.2d 495, 498 (10th Cir. 1960); NLRB v. Trumbull Asphalt Co.,
supra at 843.
This is not to suggest, however, that we believe the employees here
misunderstood the Respondent’s true intent. Rather, we agree with the
judge that the Respondent intended to and did discharge the employees
when they decided to engage in a walkout rather than stay and work on
the Respondent’s terms.
Accordingly, we affirm the judge’s findings that the
Respondent violated 8(a)(1) by discharging these three
employees.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, North
American Dismantling Corp. and North American
Demolition Corp., Lapeer, Michigan, its officers, agents,
successors, and assigns, or shall take the action set forth
in the Order as modified.
Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
their facility in Lapeer, Michigan, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 May 9, 1997.”

MEMBER HURTGEN dissenting.
Contrary to the judge and my colleagues, I cannot con-
clude that the Respondent discharged employees Jeffrey
G. Powell, Robert W. Giltrop, and Jayson Zietz. Since
there was no discharge, there was no unlawful discharge.
As fully recounted by the judge, the three employees
confronted Supervisor Daniel Borashko and insisted that
they be paid union scale for their work. They advised
Borashko that their union local had advised them to walk
off the job if the Respondent refused to pay them union
scale. Borashko rejected their demand for union scale.
He told them that if they did not accept the lower wage
scale, they should leave and find another job. The em-
ployees thereafter left the jobsite.
The issue in this case is whether Respondent dis-
charged the employees for seeking a union wage scale or
gave the employees the option of working at a lesser rate
or not working for Respondent. In my view, the General
Counsel has not established the former proposition. In-
deed, the evidence affirmatively indicates the latter.
Borashko informed the employees that Respondent
would only pay the lower nonunion scale. Unlike the
cases cited by the judge, the Respondent did not require
that the employees leave—it only said that it would not
NORTH AMERICAN DISMANTLING CORP. 1559
pay union scale. Thus, the Respondent did not convey to
employees the message that they were discharged.1
Certainly, a discharge may occur in the absence of the
use of the words “fire” or “terminate” or “discharge.” As
the court suggested in Ridgeway Trucking, the test of
whether an employee was discharged depends on the
reasonable inferences that the employees could draw
from the language used by the employer.
Here, the Respondent did not tell the employees that
they no longer had jobs. In response to employee state-
ments protesting the wage scale, Respondent told them
that they should leave and find another job if they were
unwilling to work at the rate paid by Respondent. The
employees then left. There was no discharge.
My colleagues assert that the employees “reasonably
interpreted” the Employer’s statement to mean that they
would be discharged if they struck. In response, I note
that my colleagues are not claiming that the Respondent
intended to convey a message of discharge. Further, the
Respondent’s statement could not reasonably be inter-
preted in the way suggested by my colleagues. Respon-
dent told the employees that if they did not wish to ac-
cept Respondent’s terms, they should find another job.
Of course, the matter of finding another job is quite dif-
ferent from the matter of striking to get greater benefits
at Respondent’s job. Thus, Respondent was not even
talking about striking, and thus, employees would not
reasonably get the message that striking would result in
discharge.
My colleagues also say that Respondent did nothing
after the events to dispel the notion that the employees
were discharged. However, given the uncontested con-
clusion that Respondent did not intend a discharge, there
would be no reason for Respondent to disclaim a dis-
charge. Rather, Respondent reasonably concluded that
the employees had chosen to quit.
Finally, my colleagues note the fact that Respondent
Agent Rick Marcicki testified before a State agency that
employee Powell had been discharged. However, the
question before the National Labor Relations Board is
whether, on the instant record, the General Counsel has
established a discharge. As discussed above, I do not
believe that he has done so.

1 In both Ridgeway Trucking Co., 243 NLRB 1048 (1979), enfd. 622
F. 2d 1222 (5th Cir. 1980), and Hale Mfg. Co., 228 NLRB 10 (1977),
enfd. 570 F.2d 705 (8th Cir. 1978), employees reasonably understood
that they had been discharged. In Hale, the employer stated that em-
ployees are “going to have go home,” and the employer said that he
would mail the final paycheck. In Ridgeway, the employees were en-
gaged in a strike. The employer told them to leave the property, ar-
ranged for their final paycheck, and for the removal of their personal
belongings.
John Ciaramitaro, Esq., for the General Counsel.
Hiram S. Grossman, Esq. (Daniel and Grossman), of Flint,
Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Flint, Michigan, on March 26 and 27, 1998.
On an unfair labor practice charge filed by Jeffrey G. Powell in
Case 7–CA–39923 on June 13, 1997,1 against Respondents,
North American Dismantling Corp. (Dismantling) and North
American Demolition Corp. (Demolition), and on further
charges filed by Robert W. Giltrop and Jayson Zeitz in Cases
7–CA–40151 (1) and (2), the Regional Director for Region 7
issued an order consolidating cases, consolidated complaint and
notice of hearing on September 30. The consolidated com-
plaint, as amended at the hearing, alleges that Dismantling and
Demolition violated Sections 8(a)(3) and (1) of the National
Labor Relations Act (the Act), by discharging Powell, Giltrop,
and Zeitz on May 9 because they refused to work for wages
below union scale. By its timely answer, as amended, Disman-
tling denied that the Respondents had engaged in the alleged
unfair labor practices.
FINDINGS OF FACT
I. JURISDICTION
Respondents, corporations with an office and place of busi-
ness in Lapeer, Michigan, engaged in the demolition commer-
cial and residential structures. During 1996 Dismantling and
Demolition, respectively, in conducting their business opera-
tions, purchased and received at the Lapeer, Michigan facility,
goods valued in excess of $50,000 from local dealers of Cater-
pillar Corp., located in the State of Michigan, which had re-
ceived these goods directly from points outside the State of
Michigan. Respondents admit, and I find, that they are em-
ployers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
At all times material to these cases, Rick Marcicki has been
the owner and president of both Dismantling and Demolition.
He established Dismantling in 1984 to perform demolition
work as a nonunion employer. When necessary, Dismantling
would sign union contracts to cover individual jobs. In 1994
after the union side of Dismantling’s operations had increased
substantially, Marcicki established Demolition to perform the
unionized portion of his demolition operations.
Normally, the two firms employ approximately 50 full-time
employees, which include the office staff, estimators, and super-
visors. Also, under normal conditions, Dismantling and Demo-
lition employ four crews to perform demolition work.
Demolition has collective-bargaining agreements with Michi-
gan laborers union locals in Flint, Pontiac, Ann Arbor, and De-
troit. In addition, Demolition has a contract with a laborers union
in Dayton, Ohio, and with operating engineers locals in Ohio and
Michigan. The hourly wage rate for Demolition’s unionized
laborers is $17.30, plus an additional $2 per hour in fringe bene-
fits. Dismantling’s basic hourly wage rate is $10.
1 All dates are in 1997, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1560
Jeffrey Powell began working as a laborer for Dismantling
on February 3, 1991, with an hourly rate of $13. Powell began
working for Demolition in May 1995 and in the same month
joined Laborers Local 334, based in Detroit. After May 1995
Marcicki divided Powell’s working time between Demolition
and Dismantling. This arrangement continued until May 9, the
last day of Powell’s employment by the Respondents.
Robert Giltrop, a member of Laborers Local 959 out of Ann
Arbor, and Jayson Zeitz, a member of the same local, began
working for Demolition in February. After employing them on
a demolition site for 2 or 3 weeks, Giltrop and Zeitz were laid
off. In April, Demolition recalled them. Giltrop and Zeitz
remained at work for Demolition until May 9. During 1997
Marcicki assigned them to do some work for Dismantling.
When they worked for Dismantling, Giltrop and Zeitz each
received an hourly wage of $10.
On May 7 and 8, Demolition employed Powell, Giltrop,
Zeitz, along with Jason Malady, and another laborer, whose
first name was Russell, at a site identified as Botsford Com-
mons, a union job. On the afternoon of May 8, Malady in-
formed Powell that their immediate supervisor, Donald
Borashko, had told Malady that their crew would be working at
a different site on the next day. Malady told Powell that it
would be a nonunion job. Zeitz also reported the new assign-
ment to Powell on May 8. At the end of the workday on May
8, Supervisor Borashko told Powell, Giltrop, Zeitz, and the rest
of the crew, to report to a demolition job at Lake Angelus,
Michigan, at 7 a.m. the next morning. Borashko gave his crew
instructions on how to drive to the Lake Angelus jobsite.
Borashko did not tell his crew that Lake Angelus would be a
nonunion job.2 Instead, when asked, Borashko declined to tell
Giltrop and Zeitz whether the Lake Angelus job was union or
nonunion.
The next day Powell, Giltrop, Zeitz, and the rest of
Borashko’s crew reported to the Lake Angelus job at approxi-
mately 7 a.m. On their arrival, Powell, Giltrop, and Zeitz con-
cluded that the Lake Angelus job was nonunion. Soon thereafter
the men became unhappy about being transferred from a union
job to a nonunion job. The employees’ growing displeasure
notwithstanding, Borashko persisting in telling the crew that he
was uncertain as to whether it was a union or a nonunion job.
Marcicki was at the site early in the day but none of the employ-
ees spoke to him about whether the job was union or nonunion,
nor did they tell him or Borashko that they were unwilling to

2 Giltrop and Zeitz testified that when they asked him on May 8 if
the Lake Angelus job was union or nonunion, Borashko declined to
disclose that information. Borashko testified on direct examination that
he told his crew on the afternoon of May 8 that the Lake Angelus job
was nonunion. At first, Powell testified that Malady had told him that
Borashko had disclosed to Malady that the Lake Angelus job would be
nonunion. However, on further reflection, Powell testified that Malady
had not disclosed the source of this information. Malady’s testimony
offered by Respondents, shows that he did not receive that information
from Borashko. Instead, Malady credibly testified that he knew from
his experience with the Respondents that the type of work they would
be performing at Lake Angelus was nonunion. Marcicki testified that
Borashko told him that he had told the employees that the Lake Ange-
lus job was nonunion. However, as Marcicki was not present to hear
whatever Borashko told the employees on May 8, I have accorded little
weight to this testimony. As Giltrop and Zeitz impressed me as candid
witnesses and in light Malady’s testimony, I find that Borashko did not
disclose to his crew on May 8 whether the Lake Angelus job was union
or nonunion.
work on this site because it was nonunion. As found above,
Powell, Giltrop, and Zeitz had previously worked for Disman-
tling on nonunion jobs. After giving the crew their assignments,
Borashko left the site to get scaffolding and pick up the crew
members’ paychecks from the prior week.
After Borashko left the jobsite, Powell, Giltrop, and Zeitz
decided to make some phone calls to find out if the job was
union or not. Giltrop called his local union in Ann Arbor and
was told to get in touch with the Pontiac laborers local, which
had jurisdiction over the jobsite. The representative of the Ann
Arbor local also advised Giltrop that he and his fellow crew
members should not be on a nonunion job, and that if their
employer did not agree, by noon, to pay union scale to them,
they should walk off the job. Zeitz made a telephone call to
Laborers Local 1076 in Pontiac. A business agent of Local
1076 advised Zeitz that he and the rest of the crew should nego-
tiate with their supervisor at lunchtime and seek union scale.3
After completion of the phone calls, Powell, Giltrop, Zeitz,
and the rest of Borashko’s crew began working with Richard
Christie, the operator of Christie Construction Company, the
general contractor on the Lake Angelus jobsite. They assisted
Christie in moving furniture from a house which was to be
stripped and renovated. While working, Powell, Giltrop, and
Zeitz complained among themselves about the job being non-
union, repeating to each other that they would not work for
“scabs,” meaning nonunion people.
During Borashko’s absence from the Lake Angelus jobsite,
Powell approached General Contractor Christie and complained
that it was a nonunion job, but that as far as Powell was con-
cerned, it would become a union job. Powell also stated to
Christie that he and his fellow employees would not work on this
job for nonunion wages. Continuing, Powell asserted that his
hourly wage rate on this job was only $13 and that the union
scale was $17.30. He asked if Christie would make up the differ-
ence. Christie answered that he had an agreement with Disman-
tling and Marcicki. When Powell asked for details of that
agreement, Christie declined to provide them. After assuring
Christie of his determination to obtain a union wage rate, Pow-
ell declared that he could do the job for Christie “a lot cheaper
than Rick [Marcicki] is.” When Christie asked for an explanation
of this remark, Powell responded that he could “put some people
together and do this job for you for cash.” I find from Christie’s
testimony that Powell repeated his offer to Christie five or six
times in the course of the morning of May 9.4
Borashko returned to the jobsite at between 11 and 11:30
a.m. When he came upon his crew, Borashko suggested that it
was time for lunch. Powell said he and his colleagues wanted
3 According to Powell’s testimony, Zeitz told him that the Pontiac
local had advised the employees to stay on the job until a business
agent appeared. According to Zeitz, the Pontiac local told him that the
employees should negotiate with their supervisor at lunchtime and seek
union scale. As it was Zeitz, who engaged in conversation with the
Pontiac local, and as he seemed to have a firm recollection of its con-
tent, I have credited Zeitz’s testimony in this regard.
4 I based my findings regarding Christie’s exchanges with Powell on
Christie’s testimony. When cross-examined about his remarks to Christie,
Powell seemed evasive and reluctant to disclose their content. Powell
was also quick to answer that he did not recall details of his May 9
encounters with Christie. These responses suggest that Powell was not
doing his best to search his recollection. In contrast, Christie testified
about these encounters in a candid manner, seeming to search his recol-
lection. I also noted that employee Malady’s testimony provided some
corroboration for Christie’s testimony in this regard.
NORTH AMERICAN DISMANTLING CORP. 1561
to telephone Marcicki. Borashko replied that they had no rea-
son to contact Marcicki. Borashko stated that he, as their boss,
could answer any questions that the employees had. Powell
told Borashko that the Pontiac local had advised Powell, Gil-
trop, and Zeitz to walk off the job if Dismantling refused to pay
them at the union scale. Giltrop and Zeitz echoed Powell’s
remarks. The three insisted that they wanted union scale wages
for their work at Lake Angelus. Borashko became indignant
and said the employees would not get union scale and if they
did not like that they should leave and find another job. The
three employees left the job.5 At the time of this confrontation,
Borashko had not yet heard about Powell’s remarks to
Christie.6 At the hearing before me, Marcicki admitted that
Powell was discharged on May 9. I find from Giltrop’s and
Zeitz’s testimony that they understood from Borashko’s final
statement to them on May 9, that he had fired them when he
told them to find another job if they were not willing to work
for the nonunion rate.
At about 3 or 3:30 p.m. on the same day, Marcicki arrived at
the Lake Angelus jobsite. He spoke with Christie and Borashko
and learned that Powell had offered to perform Dismantling’s
work at the site for less money and for cash. Marcicki also
heard from Borashko that Powell, Giltrop, and Zeitz had com-
plained about their wage scale and had demanded union scale.
Borashko reported to Marcicki that he had told Powell, Giltrop,
and Zeitz that if they did not want to work for nonunion wages,
they should go and find another job.
After May 9 neither Marcicki nor any other representative of
either Demolition or Dismantling contacted Giltrop or Zeitz.
Powell did call Demolition on May 22 and asked to speak with
Marcicki.7 A secretary, Toni Francis, answered the telephone.

5 I based my findings regarding the confrontation between Borashko
and employees Powell, Giltrop, and Zeitz on the testimony of the three
employees. On direct examination, Borashko testified that he attempted
to contact Marcicki at the employees’ request and that he was unable to
reach Marcicki. However, on cross-examination, when asked to recall
his exchange with Powell, Giltrop, and Zeitz, Borashko omitted any
reference to his attempt to contact Marcicki or any report of such ef-
forts to Powell. I also note Malady’s testimony to the effect that
Borashko attempted to reach Marcicki before the three employees had
left the jobsite. This testimony does not support Borashko’s testimony
that he made the attempt at the outset of his confrontation with Powell.
Further, Powell, Giltrop, and Zeitz seemed to be giving an accurate
account of what was a dramatic confrontation between them and their
supervisor. On the other hand, Borashko did not seem to be making a
serious effort to relate either the nature of, or the details of the confron-
tation. In sum, I found from their demeanor that Powell, Giltrop, and
Zeitz were more reliable witnesses than Borashko was in recalling this
confrontation.
6 According to Christie, he met Borashko upon the latter’s return to
the Lake Angelus jobsite at close to 11:30 a.m. on May 9 and reported
Powell’s effort to take the job away from Dismantling. On cross-
examination, Borashko admitted that he did not receive Christie’s re-
port until after Powell, Giltrop, and Zeitz had departed. The record
shows that Borashko considered the report of Powell’s attempt to wrest
the Lake Angelus job from Dismantling as serious misconduct. Yet the
testimony regarding Borashko’s confrontation with Powell on May 9
shows that the supervisor did not mention it in their conversation. This
fact, combined with Borashko’s recollection of having been told after
lunch, convinced me that Christie did not mention Powell’s efforts to
take over the job from Dismantling until after the three crewmen had
left the jobsite.
7 Powell testified that he telephoned Marcicki on May 13. However,
Toni Francis testifed credibly that the date of the call was May 22. She
recalled that on the latter date, Marcicki was preparing a bid that was
After a brief pause during which Francis conferred with Mar-
cicki, the secretary returned to the phone. Francis told Powell
that Marcicki was busy and had no time to talk to Powell, and
that as far as Marcicki was concerned, Powell no longer had a
job with the Respondents.
In June 1997 Powell filed an unemployment compensation
claim against Dismantling with Michigan’s Employment Secu-
rity Commission. In response to that claim, which arose from
Powell’s discharge on May 9, Dismantling’s representative, the
Gibbens Company, provided two reasons for the discharge. In
a letter to the Commission dated June 25 Gibbens asserted that
Dismantling discharged Powell for inciting other employees to
walk off the job and refuse to work, and for offering “his own
personal services as a carpenter to do work for [Christie]” on
the Lake Angelus job.
B. Analysis and Conclusions
Section 7 of the Act guarantees employees the right to en-
gage in “concerted activities” not only for self-organization, but
also “for the purpose of . . . mutual aid or protection.” The
broad protection of Section 7 applies with particular force to
unorganized employees, who, because they have no designated
bargaining representative have “to speak for themselves as best
they [can].” NLRB v. Washington Aluminum Co., 370 U.S. 9,
14 (1962).
Section 8(a)(1) of the Act protects an employee’s right to en-
gage in concerted activities by making it an unfair labor practice
“to interfere with, restrain, or coerce employees in the exercise of
rights guaranteed in Section 7.” Thus, an employer violates Sec-
tion 8(a)(1) of the Act by discharging an employee for engag-
ing in concerted activities protected by the Act. JMC Trans-
port, 272 NLRB 545 fn. 2 (1984), enfd. 776 F.2d 612 (6th Cir.
1985). It is well established that employees’ concerted activi-
ties directed toward improving their terms and conditions of
employment are protected by the Act. JMC Transport, supra at
550. See also NLRB v. Lloyd A. Fry Roofing Co., 651 F.2d 442,
445 (6th Cir. 1981). Such protected concerted activities in-
cludes that directed at improving wages. JMC Transport, supra
at 550.
The record shows that on May 9, Powell, Giltrop, and Zeitz
engaged in protected concerted activity. Soon after their arrival
at the Lake Angelus jobsite, they decided to find out if the job-
site was union or nonunion. They made telephone calls to local
unions in Ann Arbor and Pontiac. They received advice from
the locals to talk to their employer and try to obtain the union
scale wage. The Pontiac local told them to walk off the job if
their employer refused to pay them the union scale. As they
worked, the three discussed the situation and resolved to seek
union scale.
When Borashko returned to the jobsite, Powell, Giltrop, and
Zeitz approached him. Powell sought Borashko’s help in con-
tacting Marcicki. Borashko insisted that it was not necessary to
contact Marcicki. Borashko claimed that he could handle the
questions of Powell, Giltrop, and Zeitz. Speaking for Giltrop
and Zeitz as well as himself, Powell told Borashko that the
Pontiac local had advised them to walk off the job if Disman-
tling refused to pay them union scale. In the ensuing discussion
Powell, Giltrop, and Zeitz insisted that they wanted union scale
for their work at Lake Angelus. Thus, the three employees

due on the following day. As Francis impressed me as a conscientious
and candid witness, I have credited her testimony in this regard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1562
showed their shared concern about the wage scale they were to
receive for their work at Lake Angelus and acted in concert to
attain a higher wage. They apparently intended to stage a
walkout if Dismantling rejected their demand.
I find, contrary to Respondents’ contention in their brief, that
Powell, Giltrop, and Zeitz did not engage in a strike. Rather, I
find that Borashko averted a strike by rejecting the three em-
ployees’ demand for a higher wage and telling them that if they
did not accept the lower wage scale, they should leave and find
another job. Powell, Giltrop, and Zeitz interpreted these re-
marks to constitute their discharge. I find that Powell, Giltrop,
and Zeitz reasonably interpreted Borashko’s remarks as their
conditional discharge. That is, they were fired unless they were
willing to accept the lower nonunion wage scale. NLRB v.
Ridgeway Trucking Co., 622 F.2d 1222, 1224 (5th Cir. 1980);
and Hale Mfg. Co., 228 NLRB 10, 13 (1977), enfd. 570 F.2d
705 (8th Cir. 1978). By walking off the job, the three employ-
ees showed they were not willing to accept the lower wage.
Simultaneously, Borashko discharged them.
At a hearing before the Michigan Employment Security
Board of Review involving Powell’s claim for unemployment
benefits, Marcicki testified that he discharged Powell on May 9.
Any May 9 decision by Marcicki, though, only ratified what
Borashko had already done. Thus, it was Borashko who dis-
charged Powell and informed Marcicki of that fact only after
Powell had left the site.
The record also shows that Marcicki ratified Borashko’s dis-
charge of Giltrop and Zeitz. Neither Marcicki nor any other
representative of Respondents made any effort to contact Gil-
trop or Zeitz after the May 9 incident. No representative from
Respondents ever sought to notify Giltrop or Zeitz that
Borashko had not in fact discharged them. Accordingly, I find
that Respondents discharged Giltrop and Zeitz.
Under Board policy, where the record shows that an em-
ployer’s hostility toward concerted activity protected by Sec-
tion 7 of the Act was a substantial or motivating factor in a
decision to discharge an employee, the discharge will be found
unlawful, unless the employer demonstrates, as an affirmative
defense, that it would have discharged the employee even in the
absence of the protected activity. NLRB v. Transportation
Management Corp., 462 U.S. 393, 402–403 (1983), affg.
Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds,
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
and Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). Where
it is shown that the business reason or reasons advanced by the
employer for the discharge were pretextual—that is, that the
reasons or reasons either do not exist or were not in fact relied
upon—it necessarily follows that the employer has not met its
burden and the inquiry is logically at an end. Wright Line,
supra at 1084.
In the instant cases, I find that the General Counsel has shown
that Powell, Giltrop, and Zeitz engaged in concerted activity
protected by Section 7 of the Act on May 9 when they ap-
proached Borashko and insisted on union scale wages for their
work at the Lake Angelus jobsite. NLRB v. Lloyd A. Fry Roof-
ing Co., supra. The record also shows that this insistence upon
union scale as a condition of employment was a motivating
factor in Respondents’ decision to discharge these three employ-
ees. Borashko rejected the demand and advised the three em-
ployees that if they did not accept the lesser wage scale they
should leave and seek employment elsewhere. In their explana-
tion of Powell’s discharge to the Michigan Employment Secu-
rity Commission, Respondents admitted that one of the reasons
for his discharge was that he incited other employees to “walk of
the job and refuse to work on . . . Friday, May 9.” I also find
from the testimony of Respondents’ witness, Gerald Jason Mal-
ady, that on May 9, Borashko warned Powell that Powell,
“would be gone” if he walked off the Lake Angelus job. In sum,
I find ample evidence that Borashko’s decision to discharge
Powell, Giltrop, and Zeitz was motivated by their insistence on
union scale wages for their work at Lake Angelus.
The Respondents have not sustained their burden of persua-
sion by showing that they would have discharged the three
employees even if they had not engaged in protected activity.
As to Giltrop and Zeitz, the Respondents have not advanced
any business reason to explain their decision to discharge the
two employees on May 9. In an effort to rebut the General
Counsel’s evidence, the Respondents proffer Powell’s offers to
replace Dismantling as the subcontractor on the Lake Angelus
job as misconduct justifying his discharge. However, Borashko
did not rely on that misconduct on May 9, when he decided to
discharge Powell. Indeed, Borashko did not know of Powell’s
overtures to Christie until after Powell and his colleagues had
left the jobsite. I also note that when Powell telephoned Re-
spondents on May 22, Marcicki’s response to Powell was that
he no longer had a job there. Absent from Marcicki’s remarks
was any reference to Powell’s overtures to Christie. Marcicki’s
neglect to mention these overtures suggests that he was ratify-
ing what Borashko had done on May 9, and, was not attaching
any importance to those overtures. Accordingly, I find that by
discharging Powell, Giltrop, and Zeitz on May 9, Respondents
interfered with, restrained, and coerced them in the exercise of
the rights guaranteed in Section 7 of the Act. Dayton Typo-
graphical Service, 273 NLRB 1205 (1984), enfd. in pertinent
part 778 F.2d 1188, 1193 (6th Cir. 1985).8
CONCLUSIONS OF LAW
1. Respondents, North American Dismantling Corp. and
North American Demolition Corp., are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By discharging employees Jeffrey G. Powell, Robert W.
Giltrop, and Jayson Zeitz on May 9, 1997, Respondents have
violated Section 8(a)(1) of the Act, and such violations affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
3. Respondents have not violated Section 8(a)(3) of the Act
by discharging employees Jeffrey G. Powell, Robert W. Gil-
trop, and Jayson Zeitz.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondents having unlawfully discharged employees,
Jeffrey G. Powell, Robert W. Giltrop, and Jayson Zeitz, they
must offer each of the three employees reinstatement and make

8 The consolidated complaint alleged that the three discharges vio-
lated Sec. 8(a)(3) of the Act. However, the record did not show that
Respondent’s decision to discharge the three employees was motivated
by a desire to encourage or discourage membership in a labor organiza-
tion. Absent such a showing, I cannot find a violation of Sec. 8(a)(3) of
the Act. Accordingly, I shall recommend dismissal of that allegation.
NORTH AMERICAN DISMANTLING CORP. 1563
them whole for any loss of earnings and other benefits each
may have suffered as a result of his unlawful discharge. Back-
pay shall be computed on a quarterly basis from the date of
their respective discharges to the date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondents, North American Dismantling Corp. and
North American Demolition Corp., Lapeer, Michigan, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining their employees
because of their exercise of protected concerted 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.
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 Jeffrey
G. Powell, Robert W. Giltrop, and Jayson Zeitz full reinstate-
ment to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Make Jeffrey G. Powell, Robert W. Giltrop, and Jayson
Zeitz whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them. Such restitution
shall be made in the manner set forth in the remedy section of
the decision.
(c) Within 14 days from the date of this Order, remove from
their files any reference to the unlawful discharges of Jeffrey G.
Powell, Robert W. Giltrop, and Jayson Zeitz, and notify the
employees in writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) 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 necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at their
facility in Lapeer, Michigan, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondents’ authorized representative, shall be posted by the
Respondents immediately on receipt and maintained for 60

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
10 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.”
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondents to ensure that the no-
tices are not altered, defaced, or covered by any other material.
In the event that during the pendency of these proceedings, the
Respondents have gone out of business or closed the facility
involved in these proceedings the Respondents shall duplicate
and mail, at their own expense, a copy of the notice to all cur-
rent employees and former employees employed by the Re-
spondent at any time since June 13, 1997.
(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 with this Order.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge or otherwise discipline our em-
ployees because of their exercise of protected concerted activi-
ties.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Jeffrey G. Powell, Robert W. Giltrop, and Jayson Zeitz full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL make Jeffrey G. Powell, Robert W. Giltrop, and
Jayson Zeitz whole for any loss of earnings and other benefits
suffered as a result of their discharges, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charges of Jeffrey G. Powell, Robert W. Giltrop, and Jayson
Zeitz and, WE WILL, within 3 days thereafter, notify each of
them, in writing that this has been done and that the discharges
will not be used against them in any way.
NORTH AMERICAN DISMANTLING CORP.,
NORTH AMERICAN DEMPLITION CORP.