Syracuse Scenery & Stage Lighting Co.

National Labor Relations Board - Board Decisions

Jul 30, 2004

342 N.L.R.B. 672 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 65
672
Syracuse Scenery & Stage Lighting Co., Inc. and In-
ternational Alliance of Theatrical Stage Em-
ployees, Local 9. Cases 3–CA–23798–1 & 2 and
3–RC–11249
July 30, 2004
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
The issue presented in this case is whether the Re-
spondent violated the National Labor Relations Act when
it terminated four employees who left work early without
permission on 4 consecutive days, prepared and submit-
ted fraudulent timesheets to secure payment for hours not
actually worked, and then steadfastly lied about their
misconduct when confronted by their employer.1 The
administrative law judge found that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act on the grounds
that the Respondent’s primary motivation for monitoring
the work hours of these employees was to establish a
basis for firing them in order to discourage unionization.
We disagree. For the reasons discussed below, we find
that the Respondent established that it would have termi-
nated these four employees for their misconduct even in
the absence of their union activity. Accordingly, we
shall reverse the judge’s decision and dismiss the com-
plaint.2

1 On March 18,2003, Administrative Law Judge Arthur J. Amchan
issued the attached decision. The Respondent filed exceptions, a sup-
porting brief, answering briefs, and reply briefs. The General Counsel
and Charging Party each filed cross-exceptions, a supporting brief, and
an answering brief.
No exceptions were filed to the judge’s dismissal of the complaint
allegation that the Respondent violated Sec. 8(a)(1) by posting no-
solicitation signs in its facility.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge’s rulings,
findings, and conclusions only to the extent consistent with this Deci-
sion and Order.
The General Counsel and Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The Charging Party and General Counsel filed cross-exceptions as-
serting that the judge incorrectly limited his analysis concerning the
Respondent’s practice of allowing employees to “float hours,” and
incorrectly failed to find that the Respondent had a policy of accepting
inaccurate timesheets. Because we adopt the judge’s findings that the
four discharged employees did not float hours during the week in ques-
tion, and because the documentary evidence on timesheets introduced
I. FACTS
The Respondent, Syracuse Scenery & Stage Lighting
Co., Inc. (Syracuse), is a small company in the business
of stage and scenery manufacturing, installation, and
sales. In the summer of 2002, Syracuse employed the
four discharged employees, Jeff Bidwell, John
Szuszniak, Joseph Vitetta, and Michael Noga, as installa-
tion technicians or “riggers.”
In June 2002, Syracuse announced to the riggers that it
was implementing a modified retirement fund. The rig-
gers, led by Bidwell, met with Syracuse’s president,
Christine Kaiser, and its vice president, Frank Willard, to
protest aspects of the new retirement plan. Subsequently,
Bidwell led an organizing campaign of the riggers, and
on August 20, Local 9 of the International Alliance of
Theatrical Stage Employees (IATSE) filed, and Syracuse
received, a union representation petition. At approxi-
mately the same time, Willard held a meeting with instal-
lation technicians, during which he reiterated the Re-
spondent’s existing policy requiring the submission of
accurate timesheets.
On or about August 12, Bidwell, Szuszniak, Vitetta,
and Noga (the crew) were assigned to a project in Seneca
Falls, New York. The project was scheduled to take 2
weeks, with the crew working regular workweek shifts of
7 a.m. until 3 p.m. When the project was not completed
on schedule, Kaiser decided to send Project Manager
Joseph Varco to check on the progress of the job.
On August 26, as the crew was entering into its third
week of work, Varco arrived at the site at approximately
2 p.m. and found that none of the crew members was
present. When the crew had not returned by 2:30 p.m.,
Varco contacted Willard to report the crew’s absence and
also made notes to that effect. The following afternoon,
Tuesday, August 27, Varco returned to the site at ap-
proximately 2 p.m. with another project manager, Harold
Shippers. As they arrived on the site, the crew appeared
to be preparing to leave for the day. Varco and Shippers
spoke briefly with two members of the crew, and the
crew did not leave. Varco and Shippers left the site, and
waited nearby for a half hour. When they returned to the
site at approximately 3 p.m., they found the crew had left
the site early. Varco and Shippers reported what they
saw verbally to Kaiser, as well as in writing.
On Wednesday, August 28, Vice President Willard
again arrived at the site about 2 p.m. and watched the
crew from his car until 2:30 p.m., at which time the crew
departed en masse. On Thursday, August 29, with the
project delay continuing to mount, Varco again returned

at hearing was limited to the four discharged employees, we find no
merit in these exceptions.
SYRACUSE SCENERY & STAGE LIGHTING CO. 673
to the site and again observed the crew leaving at ap-
proximately 2:30 p.m. Willard and Varco reported their
observations back to Kaiser both verbally and in writing.
At the end of the week, the crew coordinated and
turned in their timesheets, each member falsely reporting
a full 32 hours of work for the week. On September 3,
Kaiser and Willard questioned the crew members sepa-
rately, and each falsely maintained that the timesheets
were accurate and denied leaving the jobsite early on any
of the days in question.3 The following day, September
4, Kaiser and Willard terminated the crew for falsifying
timesheets for the week ending August 30, 2002. Kaiser
explained to the employees that in light of their falsifying
their timesheets and dishonesty when confronted with the
matter, she had no choice but to discharge them.
The Respondent’s policy manual addresses misconduct
with regard to work hours. Specifically, page 4, section
I-B of the manual provides that “[e]mployees are ex-
pected to be present and ready for work at their sched-
uled starting time and to depart at their regularly sched-
uled time.” Further, page 5, section I-E states that “falsi-
fying records or timesheets” is “[c]onduct that may result
in disciplinary action or termination.”
In the spring of 2002, Brian Britton, a former installa-
tion technician, failed to show up for an out-of-town in-
stallation project on a Friday. Britton claimed on his
timesheet that he worked that day. After arriving for
work the following Monday and being confronted with
the incorrect timesheet by Willard, Britton immediately
confessed to missing work. Further, he informed Willard
that he made a mistake, expressed remorse, and promised
that he would not engage in such conduct again. He was
not disciplined.
II. JUDGE’S DECISION
The judge credited the observations of Varco, Ship-
pers, and Willard that the crew left work early on 4 con-
secutive days during the week of August 26, submitted
falsified timesheets claiming wages for work they had
not performed, then lied about the matter when ques-
tioned by management. Nonetheless, the judge con-
cluded that the Respondent violated Section 8(a)(3) and
(1) of the Act by terminating the crew in order to dis-
courage its employees from engaging in union activity.

3 Employee Noga was actually questioned twice. He steadfastly de-
nied any “leaving early” violation during the first interview. During the
second meeting, when told that witnesses personally observed that he
was not at the jobsite at all times he had claimed to be there, Noga
would only concede that his daily timesheets might have been off by 5–
15 minutes, but that his total hours were accurate.
Applying a Wright Line4 analysis, the judge found that
Kaiser and Willard knew of Bidwell’s lead role in the
organizing effort, and were made aware of Szusniak,
Noga, and Vitetta’s support for the Union through infor-
mants in the bargaining unit. The judge inferred anti-
union animus from the Respondent’s monitoring of the
crew, which he found was motivated by a desire to find a
basis for terminating union supporters rather than by the
Respondent’s asserted business motivation. Further, the
judge inferred animus from the Respondent’s allegedly
disparate treatment of former employee Brian Britton.
The judge likewise inferred discriminatory motivation
from the timing of the discharges. The judge regarded
the disparate treatment finding as “critical” to his deter-
mination that the Respondent’s asserted reasons for its
actions taken against the crew were pretextual.
Although the judge determined that each of the four
crew members attempted to steal wages for work not
actually performed, left work early without permission in
violation of the policy, and then lied about their miscon-
duct, he nonetheless found that the Respondent failed to
meet its burden of demonstrating that the discharges
would have occurred even in the absence of the crew
members’ protected activity.
III. ANALYSIS
Where, as here, the employer’s motivation is at issue,
the General Counsel must establish under Wright Line
that (1) the employee was engaged in protected activity;
(2) the employer was aware of the activity; and (3) the
activity was a substantial or motivating reason for the
employers action. See Manno Electric, 321 NLRB 278,
283 fn. 12 (1996). Once the General Counsel makes this
initial showing, the burden of persuasion shifts to the
Respondent to prove its affirmative defense that it would
have taken the same action even if the employees had not
engaged in protected activity. Id.
Assuming arguendo that the General Counsel met his
initial Wright Line burden to show the Respondent was
motivated by antiunion animus in terminating the four
crew members, we find that the Respondent established
that it would have taken the same action against these
employees even in the absence of their union activity.5

4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981).
5 Member Schaumber notes that the test established in Wright Line
was a causation test under which the General Counsel must prove by a
preponderance of the evidence that the employees protected activity
was a substantial or motivating factor for the adverse employment
action. The Board, administrative law judge’s, and circuit courts of
appeals have variously described the evidentiary elements of the Gen-
eral Counsels initial burden of proof under Wright Line, sometimes
adding as a fourth element the necessity for there to be a causal nexus
between the union animus (i.e., Sec. 7 animus) and the adverse em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
We note at the outset that there is no evidence of other
unlawful conduct in the record. We further note that it is
undisputed that the crew left work without permission,
submitted inaccurate timesheets—i.e., falsified records to
secure payment for hours they did not work—and lied
about the matter to the Respondent. This type of mis-
conduct is a basis for termination under Respondent’s
policy manual. The importance the Respondent placed
on this policy is emphasized by the meeting that Willard
had with the installation technicians on August 21, dur-
ing which he reminded employees that weekly time-
sheets had to be accurate.
The judge and the dissent have constructed their find-
ing of a violation solely on the basis of inferences drawn
from the alleged disparate treatment of Brian Britton and
on circumstances surrounding the Respondent’s observa-
tion of the crew. As discussed below, the record does
not support these inferences.
A. The Failure to Discipline Brian Britton is not
Evidence of Disparate Treatment
When the Respondent learned that Brian Britton had
submitted a timesheet reflecting hours that he did not
work on a particular day, Vice President Willard con-
fronted Britton, who immediately confessed to this one
instance of misconduct, offered to change his timesheet,
and showed contrition for his transgression. Willard and
Kaiser also questioned the crew, yet none of the four
acknowledged any wrongdoing. Instead, they dug in
their heels, held steadfast to their lies, and gave the Re-
spondent no indication that they regretted what they had
done. Contrary to the judge and the dissent, we find that
there is a sharp distinction between Britton’s admission
of his act of misconduct upon being confronted by
Willard, and the reaction of the crew upon being con-
fronted with their lies and repeated violations of Respon-
dent’s policies, which was to tell additional lies. The
distinction is particularly meaningful here, where the
Respondent’s projects are far away, and Respondent

ployment action. See, e.g., American Gardens Management Co., 338
NLRB 644, 645 (2002). Member Schaumber agrees with this addition
to the formulation. The existence of protected activity, employer
knowledge of the same, and animus (i.e., Sec. 7 animus) may not,
standing alone, provide the causal nexus sufficient to conclude that the
protected activity was a motivating factor for the adverse employment
action. For example, the 8(a)(1) conduct of a supervisor, while imputed
to the employer, may have no relation to adverse employment action
taken by another supervisor against an employee who happened to be
engaged in Sec. 7 activities. Member Schaumber believes it would be
preferable in the near future for the Board to adopt and thereafter con-
sistently apply a single statement of the elements of proof, but it is not
necessary to address the issue here because he and Chairman Battista
have assumed arguendo that the General Counsel met his initial Wright
Line burden.
must be able to trust and rely on the accurate and honest
timekeeping of its employees.
Our dissenting colleague says that Britton’s over-
reported hours were quantitatively more than each of the
four employees involved herein. In our view, the Re-
spondent could reasonably place more reliance on the
candor and contrition of the offender than on the number
of hours involved.
The dissent also contends that the Respondent already
made the decision to discharge the crew before meeting
with them on September 3. Contrary to the dissent, how-
ever, Kaiser testified that after discovering that both
Bidwell’s and Szuszniak’s timesheets were false, she and
Willard decided to confront the two employees concern-
ing their timesheets to see if the employees could explain
the falsification and, absent any reasonable explanation,
they would discharge the employees. In addition, Kaiser
explained that it was only after she met with the crew on
September 3, a meeting in which each of the four em-
ployees compounded his misconduct by lying about the
accuracy of his timesheets, that the Respondent decided
to terminate the four employees. Accordingly, we find
that the Respondent’s treatment of Britton is not evi-
dence of disparate treatment.
B. The Monitoring of the Crew does not Warrant the
Inference of Unlawful Motivation
We disagree with the judge that the Respondent’s
“principal, and possibly only motive” for sending its
agents to the Seneca Falls jobsite was to establish a basis
for terminating the crew.6 It is undisputed that the Se-
neca Falls project was a week overdue by the time the
Respondent began monitoring the crew. The Respondent
sent managers out to the jobsite to check on the progress
of the job and to learn why the project was taking longer
than expected. Once Kaiser learned that the crew left
early from the site on Monday, it was reasonable for her
to continue to send her managers back to the site in the
ensuing days to determine whether the problem was an
isolated incident.

6 We disagree with the dissent that the judge’s determination that the
Respondent checked up on the Seneca Falls crew to find a basis for
terminating them is a credibility determination. In Charles Batchelder
Co., 250 NLRB 89, 89–90 (1980), the Board explained:
[T]he question of motivation where an alleged unlawful discharge
[or other adverse action] is involved is not one to be answered by
crediting or discrediting a Respondent’s professed reason for the
discharge, and thus we cannot accept every credibility finding by a
trier of fact as dispositive of that issue. Rather, that question is one
to be resolved by a determination based on consideration and weigh-
ing of all the relevant evidence.
Thus, we are not reversing any of the judge’s credibility findings,
but rather are reversing his conclusion on the ultimate question of the
Respondent’s motivation.
SYRACUSE SCENERY & STAGE LIGHTING CO. 675
We reject as illogical the judge’s and the dissent’s
finding regarding the Respondent’s motive for sending
its managers to check on the progress of the Seneca Falls
project. There is no evidence that the Respondent knew
that the four employees would be absent from the jobsite
when Varco arrived there on August 26. Without such
evidence, an inference is not warranted that Varco visited
the site with the intention of establishing a basis on
which to terminate the employees. Moreover, it does not
make sense that the Respondent would reiterate its exist-
ing timesheet policy to employees shortly before initiat-
ing an effort to catch violations of the policy. If the Re-
spondent wanted to terminate the employees, why would
it warn them in advance about not engaging in this type
of misconduct? We also reject the dissent’s finding that
the Respondent had never sent managers to “spy” on
other crews whose projects were running behind. On the
contrary, the evidence shows that the project managers
regularly visit jobsites to check on the progress of the
various projects. Indeed, in the past, Varco took notes
when he was monitoring such projects. Further, to the
extent any “spying” occurred, it did not begin until Tues-
day August 27 and was justified by what occurred the
day before.
Furthermore, the dissent points to the notes of Willard,
Varco, and Shippers, which indicate little more than the
comings and goings of the crew, as evidence of the pretex-
tual nature of the Respondent’s repeated outings to the
jobsite that week. However, the notes of these managers,
reflecting the crews’ absence from the jobsite on 4 con-
secutive days, speak precisely to the issue of progress of
the job: the job was not up to speed because the employees
were not working the hours they claimed to be working.
As noted earlier, the nature of the Respondent’s busi-
ness requires that the Respondent rely on the honest
timekeeping of its employees. During the period of sur-
veillance, the Respondent discovered that the crew mem-
bers were not worthy of their employer’s trust or good
faith. For these reasons, we find that the Respondent’s
monitoring of the crew does not warrant the inference of
unlawful motivation.
The record supports neither the judge’s finding of dis-
parate treatment nor his inference that the Respondent’s
surveillance of the crew was unlawful. The only remain-
ing basis for the judge’s rejection of the Respondent’s
defense is the timing of the discharges. However, this
evidence, standing alone, is insufficient to establish that
the Respondent did not rely on its asserted reasons for
the discharges under the circumstances of this case.
While the employees’ union activities and the discharges
did occur within a relatively brief time period, so, too,
was there a close proximity in time between the employ-
ees blatant misconduct and the Respondent’s decision to
terminate them. Under these circumstances, the factor of
timing is too weak a foundation upon which to base a
finding of pretext.
Nor can the dissent base a finding of pretext on the
contention that the Respondent asserted an “after-the-
fact” or “post-hoc” explanation for the discharge. We
note initially that this theory of a violation was not relied
upon by the General Counsel. There is a good reason for
this. There is no support for it. In this regard, the dissent
contends that the discharge letters given to the discrimi-
natees contained two reasons for termination—“leaving
your assigned job site during your scheduled work
hours” and “falsifying your time sheet.” The dissent
asserts that a third reason, viz—“lying upon being con-
fronted about this misconduct” was given only at the
hearing. This assertion is not correct. This third reason
was stated to the crew at the time they were given their
discharge letters. Thus, the explanation was not “post-
hoc” as the dissent claims; it was contemporaneous with
the receipt of their termination letters.
The dissent argues that the judge “implicitly discred-
ited” Kaisers uncontradicted testimony that she explained
this third reason to the crew on the day of their discharge.
Interestingly, neither the General Counsel nor the Union
raised this “discrediting” argument to the judge or in
their answering briefs to the Board. Further, the judge’s
decision contained a specific section concerning credibil-
ity resolutions. In that section, the judge mentioned Kai-
ser’s testimony only once (fn. 8), and he credited Kaiser
there. It is therefore an unwarranted leap to say that the
judge discredited Kaiser in any respect.7
Our colleague says that the General Counsel could not
have foreseen that the Respondent would argue “lying
upon lying” as a basis for the discharge. However, the
basis for discharge was raised at the hearing, and the
General Counsel thus had an opportunity to raise, by
brief, the argument that this was a post hoc reason for the
discharge. The General Counsel did not do so.
In this same vein, our colleague says that the Respon-
dent’s policy expressly proscribes falsification of time-
sheets but it does not expressly proscribe lying about the
falsification. We think it obvious that an employer who
proscribes the former transgression also proscribes the
compounding of the original transgression.
These proscriptive policies do not mandate discharge
(or indeed any discipline) for transgression. The issue is
whether an employer can lawfully choose to distinguish
between an employee who falsifies a timesheet and an

7 Contrary to the suggestion of the dissent, it is the testimony of the
witness (Kaiser), not the statement of counsel, that is critical.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
employee who falsifies a time sheet and then lies about
the falsification. We are aware of nothing in the Act that
forbids an employer from distinguishing between the
two.
C. Conclusion
For all the reasons discussed above, we conclude, con-
trary to the dissent, that even had the General Counsel
met his initial Wright Line burden, the Respondent has
shown that it would have terminated these four employ-
ees because of their serious misconduct, regardless of
their union activity.
D. Challenged Ballots
A representation election was conducted in Case 3–
RC–11249 on January 6, 2003, in the following bargain-
ing unit:

All regular full-time and regular part-time installation
technicians, installation prep employees, rental/lighting
technicians, curtain installation technicians, and ship-
ping receiving clerks, employed by the Employer at its
101 Monarch Drive, Liverpool, New York facility.

The tally of ballots shows four for and seven against
the Petitioner, the International Alliance of Theatrical
Stage Employees, Local 9. The ballots of the four dis-
charged employees were challenged by the Respondent
and not counted. In the instant proceeding, the represen-
tation case was consolidated with the unfair labor prac-
tice case alleging that the four employees were discrimi-
natorily discharged.
Having found that the Respondent’s discharges of Jeff
Bidwell, John Szuszniak, Joseph Vitetta, and Michael
Noga were not unlawful, we conclude that the challenges
to their ballots are sustained.
ORDER
The complaint is dismissed.

CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for International Alliance of Theatrical
Stage Employees, Local 9, and that it is not the exclusive
representative of these bargaining unit employees.

MEMBER WALSH, dissenting.
The majority concludes that the Respondent estab-
lished that it would have terminated employees Jeff
Bidwell, John Szuszniak, Joseph Vitetta, and Michael
Noga for submitting false timesheets even in the absence
of their union activity. The record shows, however, that
the Respondent did not in fact rely on this asserted rea-
son when it discharged the four discriminatees. Instead,
consistent with the judge’s decision, the evidence shows
that the Respondent seized on the discriminatees’ inaccu-
rate timesheets as a pretext for ridding itself of union
adherents.
I. FACTS
On or about August 12, 2002, Respondent’s four-man
rigging crew, comprised of Jeff Bidwell, John Szuszniak,
Joseph Vitetta, and Michael Noga, started a project in
Seneca Falls, New York. On August 20, the Union filed,
and Respondent President Christine Kaiser received, a
union representation petition. The very next day, August
21, Respondent Vice President Frank Willard called a
meeting of all riggers to tell them that their timesheets
had to be accurate. There was no evidence Willard had
ever before called such a meeting, and by Willard’s own
admission, he did not ordinarily check employees’ time-
sheets as part of the ordinary course of business.1
The very next week, the Respondent ordered its man-
agers to secretly monitor the discriminatees, purportedly
to check on the progress of the job that was a week be-
hind schedule. From Monday, August 26, through
Thursday, August 29, Kaiser sent three different agents
of the Company (Project Managers Joseph Oakie Varco
and Harold Ike Shippers, and Vice President Willard) to
the Seneca Falls site, for a total of four trips, and over 10
hours of company time. On each of these outings, one or
more of these managers surreptitiously observed the dis-
criminatees, and, at the direction of Kaiser, each recorded
notes of the surveillance missions, which amounted to an
accounting of the discriminatees’ comings and goings.2
There was no evidence that Kaiser had ever before di-
rected her managers to engage in such surveillance. By
Varco’s own admission, this was the first and only time
he was asked to document employees comings and go-
ings to Kaiser; this was also the first and only time such
documentation had ever been used in connection with
terminating employees.3
While Varco and Willard spoke with the discrimina-
tees at various points during the week of August 26, nei-
ther ever broached the topic of their leaving the site

1 While the majority characterizes Willard’s impromptu meeting as a
“reiteration” of the Respondent’s existing policy, there is no evidence
that the Respondent ever enforced its written policy to discipline or
terminate an employee for falsifying timesheets prior to its receipt of
the Union’s representation petition. To the contrary, the only evidence
introduced at the hearing with regard to an employee falsifying time-
sheets to secure payment for hours he did not work is the example set
by Respondent’s crew chief, Brian Britton—whom the Respondent let
off scot free.
2 While it is not clear when the crew left the site on Monday, August
26, the credited testimony of Willard, Shippers, and Varco is that the
crew left at approximately 2:30 p.m. on the three successive afternoons,
when their quit time should have been at 3 p.m.
3 Varco additionally admitted that that he would not be surprised if
employees on long distance jobs end their shifts a bit early.
SYRACUSE SCENERY & STAGE LIGHTING CO. 677
early, nor expressed concern to Bidwell or any other
member of the crew about the job taking longer than an-
ticipated. When the discriminatees turned in their time-
sheets for the workweek, each indicated that they had
worked a full 32 hours at the jobsite.
On August 30, Bidwell attended the Union’s represen-
tation hearing, at which both Kaiser and Willard were
present. The very next business day, September 3, Kai-
ser and Willard met briefly with the discriminatees indi-
vidually, to confront each of them about the inaccurate
timesheets. By this time, the decision to terminate the
discriminatees had already been made. Willard read
from a prepared statement to each of them, and Kaiser
took notes. The following day, on September 4, Kaiser
and Willard handed each of the discriminatees a termina-
tion letter stating the grounds for discharge as “leaving
your assigned job site during your scheduled work hours
last week and falsifying your time sheet for the week
ending August 30, 2002.”4
Months prior to the events of this case, the Respon-
dent’s then-field installation crew chief by the name of
Brian Britton submitted a falsified timesheet, claiming
wages for a full 8-hour day of work that he did not per-
form. Britton was the only member of his crew who had
skipped out of work that day. When Willard learned of
this, he confronted Britton immediately. Britton told
Willard he could offer no “honest answer” for his con-
duct. Willard testified that he could not recall whether
the Respondent ever considered terminating Britton, and
Britton did not receive a written warning for his trans-
gression.5
II. ANALYSIS
This case turns on the Respondent’s motivation. Un-
der Wright Line, the General Counsel must show that the
discharged employees’ protected conduct was a “moti-
vating factor” in the employer’s decision. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir.

4 The majority points out that Kaiser testified that at the time she and
Willard discharged the four discriminatees on September 4, she ex-
plained to them that she had “no choice” but to discharge them in light
of their falsifying timesheets and dishonesty when confronted. The
termination letters that she and Willard handed to the four men on
September 4, however, make no mention of this additional basis, i.e.,
lying upon being confronted, for terminating the four discriminatees.
5 By Britton’s own testimony, Willard’s reaction was benign. Brit-
ton testified: “[Willard] indicated that . . . . I . . . .should have known
better and basically don’t let it happen again. We don’t like to see this
and that was pretty much it.” This is a far cry from Willard’s testimony
concerning his discovery that the four discriminatees had submitted
false timesheets on August 29: “We decided that absent any reasonable
explanation . . . that it was a serious offense. And that we could not
support employees, regardless of how good a worker they were, that
would be lying, cheating, and taking time and money from the com-
pany . . . .”
1981). As part of his initial showing, the General Coun-
sel may offer proof that the employer’s reasons for the
personnel decision were false or pretextual. Pro-Spec
Painting, Inc., 339 NLRB 946, 949 (2003) (citing Na-
tional Steel & Shipbuilding Co., 324 NLRB 1114, 1119
fn. 11 (1997)). See also Laro Maintenance Corp. v.
NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995) (“When the
employer presents a legitimate basis for its actions which
the factfinder concludes is pretextual . . . . the factfinder
may not only properly infer that there is some other mo-
tive, but that the motive is one that the employer desires
to conceal—an unlawful motive . . . .”) (citing Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1996) (internal quotations omitted)).
A finding of pretext defeats any attempt by the Re-
spondent to show that it would have discharged the dis-
criminatees absent their union activities. This is because
where “the evidence establishes that the reasons given
for the Respondent’s action are pretextual—that is, either
false or not in fact relied upon—the Respondent fails by
definition to show that it would have taken the same ac-
tion for those reasons, absent the protected conduct, and
thus there is no need to perform the second part of the
Wright Line analysis.” Golden State Foods Corp., 340
NLRB 382, 385 (2003) (citing Limestone Apparel Corp.,
255 NLRB 722 (1981)). See also Sanderson Farms,
Inc., 340 NLRB 402 (2003).
Here, the Respondent asserts that it discharged the dis-
criminatees because they submitted timesheets that mis-
represented the number of hours that they actually
worked. There is no question that the discriminatees
submitted inaccurate timesheets for the week of August
26–29, 2002. This is not a case, therefore, where the
reasons asserted for the discharges are false. It is, in-
stead, a case where the evidence establishes that the Re-
spondent did not actually rely upon its asserted reason in
terminating the crew. As the judge properly found, the
Respondent knew that the four discriminatees were union
adherents,6 and the Respondent seized on the inaccuracy
of the discriminatees’ timesheets as a pretext for dis-
criminating against them on the basis of their union ac-
tivity. The pretextual nature of the Respondent’s defense
makes out the General Counsel’s case; it also defeats the
Respondent’s attempt to show that it would have dis-
charged the discriminatees even in the absence of their
union activity.
The judge’s finding of pretext, as discussed below, is
supported by the evidence of the Respondent’s disparate

6 Respondent President Christine Kaiser testified that during the
summer of 2002, she became aware of the distribution of union au-
thorization cards and other goings-on in the organizing campaign
through the reports of more than one unit member.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
treatment of Brian Britton as compared to the four dis-
criminatees, as well as the surrounding circumstances of
the discharges.
A. Disparate Treatment
The majority declares that the Respondent’s leniency
toward Brian Britton—its crew chief who was caught in
his attempt to steal an entire day of time—differs from its
harsher treatment of the four discriminatees because Brit-
ton admitted to his transgression immediately, whereas
the discriminatees did not. Indeed, the linchpin of the
Respondent’s argument is that the Respondent termi-
nated the four discriminatees not only for falsifying time
records, but also for lying upon being confronted about
this misconduct. However, this after-the-fact explanation
for the Respondent’s discharge of the discriminatees is
not supported by the documentary evidence at the time of
the terminations. As the judge found, each of the four
termination letters clearly state that the discriminatees
were discharged for “leaving your assigned job site dur-
ing your scheduled work hours last week and falsifying
your time sheet for the week ending August 30, 2002.”
It was only at the hearing, when the Respondent was
faced with the stark evidence of its disparate treatment of
Britton, that the Respondent advanced an additional basis
for terminating the discriminatees.7 This post hoc “lying
upon lying” explanation was and remains a vain attempt
to distinguish the Respondent’s downright lax treatment

7 The majority argues that this additional or third reason for termi-
nating the discriminatees was communicated to them at the time they
were given their discharge letters. While Kaiser testified to that effect,
a close reading of the judge’s factual findings shows that he implicitly
discredited Kaiser’s testimony. “Such implicit credibility resolutions
are appropriate where an ALJ’s treatment of the evidence is supported
by the record as a whole.” NLRB v. Katzs Delicatessen of Houston
Street, Inc., 80 F.3d 755, 765 (2d Cir. 1996). Here, the judge stated at
the outset of his decision that his findings of fact were based on “the
entire record, including [his] observation of the demeanor of the wit-
nesses.” In the fact section of his decision discussing the reasons the
Respondent gave for terminating the discriminatees, the judge refer-
enced only the two reasons stated in the termination letters and made no
mention of Kaiser’s testimony about a third reason. The majority errs
by asserting that the judge credited a portion of Kaiser’s testimony in
the section of his opinion containing specific credibility resolutions.
The only reference in that section to Kaiser’s testimony is as corrobora-
tion for Varco’s’ admission that Kaiser told him that he could either
resign as union president, resign his employment, or be fired. (See fn.
8 of the judge’s decision and accompanying text.)
The record amply supports the judge’s implicit discrediting of Kai-
ser’s testimony, which was not corroborated by any other witness. In
fact, at the hearing, the Respondent’s own counsel did not interpret
Kaiser’s testimony as establishing a third reason for termination. He
stated: “[I]t’s unfair to characterize that [the discriminatees’ lying] as
the reason for termination. The misconduct is the two reasons stated in
the letter.” (Emphasis added.) In these circumstances, the majority’s
assertion that “it is . . . an unwarranted leap to say that the judge dis-
credited Kaiser in any respect” is clearly incorrect.
of Britton, who did not so much as suffer a slap on the
wrist for his blatant misconduct. It is also compelling
evidence of pretext.8 See McClendon Electrical Ser-
vices, 340 NLRB 613 (2003) (where reasons advanced at
hearing differed from reasons stated in disciplinary no-
tice, “[t]he Company’s vacillation and the multiplicity of
its alleged reasons for firing [the employee] render its
claims of nondiscrimination the less convincing”) (citing
cases); Power, Inc. v. NLRB, 40 F.3d 409, 420 (D.C. Cir.
1994).
Furthermore, under the Respondent’s policy manual,
the Respondent should have punished Britton for his
misconduct. Its failure to do so while discharging the
discriminatees “is obviously suggestive of improper mo-
tivation.” Wyman-Gordon Co. v. NLRB, 654 F.2d 134,
141 (1st Cir. 1981). Here, the Respondent has a policy
that proscribes, inter alia, the conduct of (1) not reporting
to work at the scheduled starting time; and (2) falsifying
time records. Contrary to the suggestion of the majority,
the policy does not contain an additional provision con-
cerning “lying about lying.” Rather, it proscribes lying
in the first instance. No matter how the majority wishes
to favorably distinguish Britton from the four discrimina-
tees, the majority cannot escape two basic truths: (1)
Britton did not report to work for an entire day; and (2)
Britton proceeded to lie about it an attempt to cheat his
employer out of a day’s work by turning in a falsified
timesheet. Under the Respondent’s policy, as well as the
testimony of Kaiser and Willard that absent a “reason-
able explanation,” such lying and cheating conduct will
not be tolerated, Britton should have been terminated.9
There is simply no principled basis for the Respondent’s
termination of four discriminatees in light of its lax
treatment of Britton.
The Respondent’s disparate treatment of Britton—a
crew chief who stole roughly the same amount of time as
the four discriminatees combined—undermines the Re-
spondent’s assertion that such transgressions are not or-
dinarily tolerated. See Pro-Spec Painting, Inc., supra at
950–951 (evidence that respondent “tolerated a lot

8 The majority “note[s]” that the General Counsel did not advance
the Respondent’s post hoc explanation as a “theory of a violation.”
This observation is totally irrelevant. Obviously, the General Counsel
is not prescient and cannot anticipate what defenses a respondent may
raise for the first time at the hearing. The “theory of a violation” ad-
vanced by the General Counsel at all relevant times was that the Re-
spondent’s defenses were pretextual. As discussed above, the General
Counsel’s theory is fully supported by the record and the findings of the
judge.
9 The majority’s reliance on Kaiser’s testimony that it was only “ab-
sent any reasonable explanation” that she would terminate the discrimi-
natees for falsifying timesheets is farcical in light of Britton’s own
testimony that when asked why he had falsified timesheets for an entire
day of time, he replied: “I don’t have an honest answer for that.”
SYRACUSE SCENERY & STAGE LIGHTING CO. 679
worse” constituted disparate treatment that belied re-
spondent’s assertion that it fired employee for cause);
Guardian Automotive Trim, Inc., 340 NLRB 475 fn.1
(2003) (relying on evidence of disparate treatment to
show the respondent’s antiunion motive where respon-
dent issued a greater corrective action to discharged em-
ployees than it did to other employees disciplined for
similar conduct); La Gloria Oil & Gas Co., 337 NLRB
1120, 1124 (2002) (rejecting respondent’s claim that
absent an exact comparable situation, the judge erred in
finding disparate treatment, where there was evidence of
respondent’s leniency towards employees who commit-
ted similar transgressions). There is no evidence that the
Respondent has ever before fired an employee for mis-
representing hours worked on a timesheet.10 With re-
spect to Britton in particular, there is no evidence that
Kaiser ever asked Willard or any of her managers to
monitor Britton at any time, even after their discovery of
his misconduct.
B. Surrounding Circumstances
1. Surveillance of the crew
The Respondent’s asserted reasons for initiating its
monitoring of the discriminatees are equally specious.
While the majority is quick to point out that the judge
credited the testimony of Willard, Varco, and Shippers as
to what each observed of the comings and goings of the
discriminatees, the majority simultaneously disregards
the judge’s rejection of these witnesses’ testimony on
their reasons for monitoring the discriminatees in the
first place. The preponderance of the evidence, as dis-
cussed below, supports the judge’s determination that
“Respondent checked up on the Seneca Falls crew from
August 26–29 with the primary, and possibly the sole,
objective of finding grounds for terminating them.”
There is thus no basis for disturbing the judge’s credibil-
ity resolution on this point. See Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951).

10 Tellingly, Willard could not recall a single instance—in his 28
years with the Respondent—when an employee had been terminated
for misrepresenting hours on a timesheet. The majority’s repeated
assertion that the Respondent placed great importance on a timesheet
policy that the Respondent did not bother to enforce until the advent of
the Union’s campaign thus rings hollow. Indeed, Brian Britton re-
counted how he and his crew violated this purported policy on a regular
basis: “Say we worked, some weeks we would actually put in more
than 40 [hours] to get finished. But there was other weeks where we
wouldn’t put in our 40 at 38, 39, and then we’d just kinda, we had an
agreement that we would, you know, as long as we kept within 1 or 2
hours of that time each week, and I, as, well, the head guy at the instal-
lation point, would say, okay, you know wed work a little extra here, a
little less there, but we always, for the most part, put our 40 hours in. . .
.”
First, while the Seneca Falls project was 1 week over-
due, Project Manager Varco testified that jobs are often
overdue. He also testified that the Seneca Falls project
was the first and only job for which he and two other
managers were sent to the site to monitor and record the
comings and goings of a work crew for Kaiser. There
was no evidence that the Respondent had ever before
sent management employees to spy on other crews
whose projects were running over or nearing comple-
tion.11
Second, while Varco, Shippers, and Willard all testi-
fied that they went to the site to check on the progress of
the job because it was behind schedule, as the judge cor-
rectly noted, their recorded notes belie this explanation.
For example, while Varco testified that he went to check
on the progress of the job on August 26 on his own, and
brought along Shippers on August 27 for his “technical
expertise,” neither Varco’s nor Shipper’s notes reflect
anything about the progress of the job on either date.
Third, as the judge also correctly noted, “an employer
interested only in getting its employees to work a full day
would have taken immediate remedial action on August
26,” the first day that it learned that the crew left the job
early. Instead, numerous opportunities came and went
for Varco, Shippers, and Willard to confront the crew.
For example, on Tuesday August 27, Varco and Shippers
spoke with Bidwell and another crew member at the site,
but concealed their knowledge of Varco’s presence at the
site the afternoon prior. Varco and Shippers then pre-
tended to leave the site, only to hide in a nearby parking
lot for an additional half hour. Varco, Shippers, and
Willard did not confront the crew at any point during that
week. Varco could not even recall telling Bidwell that
he was unhappy with the progress of the job when
Bidwell called him on August 28 for a routine check-in.
This conduct on the part of the Respondent’s agents, at
the direction of the Respondent’s president, is utterly
inconsistent with the Respondent’s professed concerns
with the progress of the Seneca Falls job.12
Finally, Willard testified that the reason he did not ad-
dress the issue of leaving early with the discriminatees

11 The majority points to Varco’s testimony that he has taken notes
when he has monitored projects in the past. However, this vague testi-
mony was not supported by the production of any such notes by Varco
or any other of the Respondent’s managers for that matter. Nor is there
anything in Varco’s testimony or elsewhere in the record that indicates
that he or any other manager had monitored any other project in the
surreptitious and hidden manner engaged in by the Respondent’s man-
agers in this case.
12 These facts also undermine the Respondent’s argument, adopted
by the majority, that Willard treated Britton and the discriminatees
similarly in this regard. Willard consciously chose not to confront the
discriminatees upon learning of their misconduct, whereas he con-
fronted Britton immediately upon learning of Britton’s misconduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
prior to September 3 was because of the hearing that took
place on Friday, August 30. This does not explain why
Willard did not say anything to these men for the 4 pre-
vious days he and the other managers had observed the
worksite. The failure to confront the discriminatees ear-
lier in the week is particularly telling because this pro-
ject, as the majority repeatedly underscores, was to be
finished by that Friday, and was already a week behind
schedule. That none of the Respondent’s managers
checked the jobsite on August 30, even though the pro-
ject was supposed to be completed on that day, is equally
telling of the Respondent’s unlawful motivation, particu-
larly in light of the fact that Vitetta was still working on
the job that day. These facts support the inference that
the Respondent’s true motivation for observing the dis-
criminatees that week was to establish a basis for firing
them, not to address purported concerns for the progress
of the job.
2. Timing
The timing of the Respondent’s monitoring and ulti-
mate discharge of the discriminatees—coinciding with
the Union’s organizing drive of the riggers—is “stun-
ningly obvious” and provides additional evidence that
establishes the Respondent’s unlawful motivation.13 The
chronology of relevant events bears repeating and speaks
for itself:

• August 20—Respondent receives Union’s
representation petition.
• August 21—Willard calls first-ever meeting
to tell riggers of the importance of timesheet
accuracy.
• August 26–29—Respondent’s managers se-
cretly monitor the discriminatees.
• August 30 – Bidwell attends Union’s repre-
sentation hearing at which Willard and Kaiser
are both present.
• September 3—Willard and Kaiser confront
the discriminatees, their decision for termina-
tion already made.
• September 4—the discriminatees are termi-
nated.
C. Conclusion
The evidence of disparate treatment, together with the
evidence concerning the surrounding circumstances of
the terminations, warrants the inference of discriminatory
motivation drawn by the judge in this case. See Pro-

13 NLRB v. American Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir. 1982)
(“An inference of anti-union animus is proper when the timing of the
employer’s actions is stunningly obvious.”), cert. denied 461 U.S. 906
(1983).
Spec Painting, Inc., 339 NLRB at 949 (2003) (“Respon-
dent’s explanations for the terminations are pretexts and
those pretextual explanations, along with an analysis of
the circumstances of their terminations support findings
of discrimination”). Because this is a case where the
pretextual nature of the Respondent’s defense makes out
the General Counsel’s case, the Respondent’s attempt to
show that it would have discharged the discriminatees
even in the absence of their union activity necessarily
fails. Golden State Foods Corp., 340 NLRB at 385
(2003).
Accordingly, the judge’s finding that the Respondent
violated Section 8(a)(3) and (1) of the Act should be
adopted, the challenges to the ballots of the discrimina-
tees should be overruled, their ballots should be opened
and counted, and the appropriate certification should be
issued.

Robert Ringler, Esq., for the General Counsel.
John T. McCann and Christian P. Jones, Esqs. (Hancock &
Estabrook, LLP), of Syracuse, New York, for the Respon-
dent.
Mairead E. Conner, Esq. (Chamberlain, D’Amanda, Oppen-
heimer & Greenfield), of Syracuse, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Syracuse, New York, on January 30–31, 2003. The
charges were filed September 4 and 5, 2002 and the complaint
was issued November 25, 2002. The General Counsel alleges
that Respondent, Syracuse Scenery and Stage Lighting Com-
pany, Inc., violated Section 8(a)(3) and (1) of the Act in dis-
charging four employees, Jeff Bidwell, John Szuszniak, Joseph
Vitetta, and Michael Noga, on September 4, 2002, in order to
retaliate against at least some of them for engaging in union
organizing activity and to discourage all of its employees from
engaging in such activities. Respondent contends that it dis-
charged the four employees for legitimate nondiscriminatory
reasons—leaving work early and then submitting inaccurate
timesheets. The General Counsel also alleges that Respondent
violated Section 8(a)(1) by posting no-solicitation signs at its
facility on or about June 18, 2002.
A representation election was conducted at Respondent’s fa-
cility on January 6, 2003, in the following collective-bargaining
unit:

All regular full-time and regular part-time installation techni-
cians, installation prep employees, rental/lighting technicians,
curtain installation technicians, and shipping receiving clerks,
employed by the Employer at its 101 Monarch Drive, Liver-
pool, New York facility.

Seven votes were cast against the Union; four were cast for
the Union; the four employees who were discharged on Sep-
tember 4, 2002, cast ballots, which were challenged by the
SYRACUSE SCENERY & STAGE LIGHTING CO. 681
Respondent and not counted. Thus, if the Board finds that
these employees were discriminatorily discharged, their ballots
could be determinative of the election.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, fabricates stage curtains, installs
theatrical equipment and sells theatrical supplies at or from its
facility in Liverpool, New York, outside of Syracuse. It annu-
ally sells and ships goods valued in excess of $50,0000 directly
to points located outside the State of New York. The Respon-
dent admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union, Local 9 of the International Alliance of
Theatrical Stage Employees (IATSE), is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Union Organizing Campaign
In the summer of 2002, Respondent employed about 33 indi-
viduals, including approximately 14 installation technicians, or
“riggers.”1 The riggers generally worked at school or commu-
nity theaters installing counterweights and other apparatus for
the suspension of scenery and stage curtains and hanging lights.
Approximately 90 percent of Respondent’s customers for its
rigging services were public institutions. On these public pro-
jects, Respondent was required to pay the riggers a “prevailing
wage rate.” The prevailing wage consisted of a base wage and
a fringe benefit component. This prevailing rate ranged any-
where from $25 per hour to $42 per hour, depending on the
location of the worksite. The fringe benefit component, which
ranged between $6 per hour and $14 per hour, could by statute
either be paid to employees as part of their paycheck or placed
in a retirement, insurance or other fringe benefit fund.
Prior to June 2002, Respondent paid its riggers the entire
prevailing rate as part of their paychecks. On June 3, 2002,
Respondent president, Christine Kaiser, announced to employ-
ees that Respondent was implementing a retirement fund (an
Internal Revenue Service 401 pw account) into which the entire
fringe portion of the riggers’ pay would be deposited. The
rigging employees later met with Ms. Kaiser and Respondent’s
vice president, Frank Willard. Rigger Jeff Bidwell protested
on behalf of the rigging employees that the retirement plan
would reduce their take home pay drastically. Kaiser said her
decision regarding implementation of the retirement fund was
irreversible.
At another meeting on June 10, with Frank Willard, Bidwell
again complained about the decrease in the riggers’ take home
pay and asked that the implementation of the retirement plan be

1 At least half of the employees were not members of the proposed
bargaining unit, such as employees who sewed curtains at Respondent’s
shop.
delayed. At some point in the meeting, Bidwell stated that the
riggers’ problem was that they didn’t have a union. Willard
asked which union they were interested in. Shortly thereafter,
Bidwell and others, including John Szuszniak, started an orga-
nizing drive and solicited employees to sign IATSE authoriza-
tion cards. Several employees, including all the discriminatees,
attended at least two union meetings at Bidwell’s home. Joseph
Vitetta signed an authorization card. Chris Kaiser and Frank
Willard learned of the union organizing drive shortly thereafter.
A bargaining unit employee provided them with information
about the organizational campaign. Although Bidwell, Szusz-
niak and possibly some other of employees of Respondent al-
ready were members of IATSE, the Union was not their collec-
tive-bargaining representative with Respondent.2
B. The Seneca Falls Project and Events Leading
to the Discharges
A four man rigging crew began work installing theatrical
equipment at a school in Seneca Falls, New York, on Monday,
August 12, 2002. Employees were paid the prevailing rate for
time spent on this project. Jeff Bidwell was the crew chief. He
and crewmember John Szuszniak reported to Respondent’s
shop in Liverpool each morning and then drove 40–45 minutes
to the Seneca Falls jobsite. Bidwell and Szuszniak returned to
the shop each evening. The two other crewmembers, Michael
Noga and Joseph Vitetta, drove directly to and from the jobsite
from their residences.
On August 20, 2002, the Union filed a petition to represent
Respondent’s riggers, lighting technicians, and shipping clerks.
Respondent apparently received the petition the same day. On
or about August 21, Frank Willard met with the entire rigging
staff. At this meeting Willard told the rigging employees that
their weekly timesheets had to be accurate.
On Monday, August 26, Joseph Varco, Respondent’s project
manager for the Seneca Falls site went to the school at about 2
p.m. He found that none of the crewmembers were at the site.
He stayed at the jobsite until about 2:30 p.m., reported the
crew’s absence to Willard and then drove back to Respondent’s
shop in Liverpool. At about 3:45 p.m. Bidwell and Szuszniak
arrived at the shop. Neither Varco nor Willard asked these
employees why they were not at the jobsite during Varco’s
visit.3
Respondent contends that Varco went to Seneca Falls on
August 26, the beginning of the crew’s third week on that pro-
ject, because the work was to have been completed within two
weeks. Despite this contention, there is no evidence that Varco,
Willard or any other member of management asked Bidwell or
any other crewmember why the job was taking them so long.
Varco testified that the Seneca Falls job was not the only pro-
ject that took longer to complete than anticipated. There is no
evidence that Respondent sent management employees to spy
on work crews on any other job whose duration exceeded ex-
pectations. I therefore infer that Respondent’s principal, and

2 Prior to the summer of 2002, the Union hiring hall had referred a
number of its members to Respondent, including Bidwell and
Szuszniak. Up until June 2002, Joseph Varco, one of Respondent’s
project managers, was president of Local 9.
3 No such inquiry was made later in the week, either.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682
possibly only, motive for sending Varco out to the jobsite was
to establish a basis for terminating Bidwell and the other mem-
bers of his crew, all of whom had at least attended union organ-
izational meetings.
Varco returned to the site with another project superinten-
dent, Harold “Ike” Shippers at about 2 p.m. on Tuesday, Au-
gust 27. As Varco and Shippers entered the school grounds
they encountered crewmembers Noga and Vitetta, in separate
vehicles, leaving the site. Varco and Shippers drove behind the
school to the theatre area where they found Bidwell sitting in
his company van, talking on a cell phone and Szuszniak pack-
ing up the crew’s materials. Shippers called Frank Willard and
informed him of these facts.
Varco and Shippers went to the stage area where they were
first joined by Bidwell and Szuszniak, and then by Noga and
Vitetta, who turned around and came back to the worksite. At
no time did Varco or Shippers indicate to the crew that they
were unhappy with the progress of the job. Both made notes of
their visit, which dealt exclusively with checking on the times
at which the crew left the jobsite.4 Varco and Shippers left the
site at about 2:30 and hid for about a half hour. They returned
at about 3 p.m. and found none of the crewmembers at the site.
They stayed at the site for about 15 minutes. On the way back
to Liverpool, Varco and Shippers had to repair a flat tire.
When they arrived at the shop, Bidwell and Szuszniak were
already there. Neither Varco nor Shippers asked where the two
crewmembers were between 3 and 3:15 p.m., or indicated that
they had returned to the worksite.
On Wednesday, August 28, Respondent’s Vice President
Frank Willard drove to Seneca Falls jobsite, arriving at about 2
p.m. He watched the crew unobserved from a parking lot and
saw them leave at 2:30 p.m. Willard stayed at the Seneca Falls
school until 3 p.m. Willard also made no inquiry as to why the
crew left early nor did he indicate to any of them that he was
aware of their early departure.
Varco went back to the site on Thursday, August 29, arriving
about 2:20 p.m. He watched the crew from a concealed loca-
tion and saw them leave the site at about 2:30 p.m. Varco re-
ported his observations to Willard. Varco returned to the shop,
and was there when Bidwell and Szuszniak arrived at 4:10.p.m.
Again, Varco made no inquiries as to their whereabouts after
2:30 p.m.. Bidwell and Szuszniak turned in their weekly time-
sheets to Varco on August 29 because neither was to be at work
on Friday. They both reported that they had arrived on the
jobsite at about 7:15 a.m. on Monday and about 6:45 a.m.
Tuesday–Thursday. Bidwell and Szuszniak also reported that
they after spending 8 hours on the jobsite, they left Seneca Falls
at 3:45 p.m. on Monday and 3:15 p.m. Tuesday and Thursday.
Their timesheets reported 32 hours of work at the jobsite, which
was to be compensated at the prevailing wage rate and 6 hours
of driving time and a half hour of shop time, which was paid at
a much lower rate than the prevailing wage.
On Friday, August 30, Bidwell attended a representation
case hearing at the Federal Building in Syracuse, pursuant to a

4 Varco made notes regarding all his jobsite visits to Seneca Falls
during the week of August 26–30. These notes deal almost exclusively
with the early departure of the crewmembers.
union subpoena. Christine Kaiser and Frank Willard were also
present. Neither Szuszniak nor Noga worked on August 30;
Vitetta worked 6 hours at the jobsite. All four crewmembers
reported 8 hours of work on the jobsite for Monday, August 26
through Thursday, August 29.
Monday, September 2, was the Labor Day holiday. The next
working day, Tuesday, September 3, 2002, Christine Kaiser
and Frank Willard met very briefly with Bidwell, Szuszniak
and Noga. Kaiser and Willard confronted all three with the
assertion that they left the jobsite considerably earlier than their
timesheets indicated. All three insisted that the timesheets were
materially accurate. Neither Kaiser nor Willard indicated to
any of the three the basis on their assertions. Willard had a
brief telephone conversation with Joseph Vitetta in which
Vitetta told Willard that he was upset because he was putting
his dog to sleep and that he would speak to Willard about the
timesheets the next day.5
Later in the afternoon, Willard met again with Michael
Noga, this time in the presence of Joseph Varco and “Ike”
Shippers. In this second meeting, Willard informed Noga that
the three had personally observed that Noga was not at the job-
site at all times he claimed to have there. At this point, Noga
conceded that the information on his timesheets could be off by
5–15 minutes but that the total number of hours he claimed to
have worked was correct.6
On the morning of September 4, all four employees were
called into Chris Kaiser’s office. They were each handed a
letter stating that they were being terminated for “leaving your
assigned job site during your scheduled work hours last week
and falsifying your time sheet for the week ending August 30,
2002.” It is unclear whether Joseph Vitetta was ever given an
opportunity to admit that his timesheet was not accurate or
whether he was accorded an opportunity to correct it.7
C. Credibility Resolutions
None of the witness who testified regarding the circum-
stances surrounding the four discharges is unbiased. Moreover,
Varco, possibly the key witness is this case, was one of the
most ill at ease, nervous witnesses I have ever observed. He
also initially testified, less than forthrightly, that nobody at
Respondent told him to resign as president of the Union. He
later admitted that in or about June 2002, Christine Kaiser told
Varco he could either resign as president of the Union, resign
his employment, or be fired.8 Varco chose to remain employed.
He has remained a member of the Union but has not attended a
union meeting since June 2002. I infer that Varco was very

5 It is unclear whether there was any substantive discussion about the
timesheets with Vitetta on September 3.
6 Frank Willard testified that Noga admitted to “fudging” his time-
sheets by as much as a half an hour. Noga testified that he offered to
amend his timesheets on September 4, but was not allowed to do so.
7 Joseph Varco conceded that all four discriminatees were generally
good employees. With the exception of Bidwell, who had received a
written warning for alleged marijuana use in March 2001, none of the
four had been disciplined by Respondent previously.
8 Kaiser also testified that she told Varco that he could either resign
as union president, be fired, or resign his employment.
SYRACUSE SCENERY & STAGE LIGHTING CO. 683
worried that he might lose his job as a result of his testimony at
this hearing.
Nevertheless, I conclude that the testimony of Varco, Ship-
pers, and Willard, regarding the times at which they found
crewmembers absent from the Seneca Falls jobsite, or observed
them leaving the jobsite, is credible. Nothing in this record
indicates that any of this testimony is fabricated. While the
charging party’s brief attacks Varco’s credibility, it offers no
reason to discredit the corroborating testimony of Shippers and
Willard with regard to the crew’s whereabouts on Tuesday,
August 27 and Wednesday, August 28.
Moreover, there are a number of inconsistencies in the testi-
mony of the four alleged discriminates. Bidwell’s account of
his September 4 conversation with Frank Willard regarding his
hours the prior week is internally inconsistent. First, Bidwell
testified that he told Willard that the crew left the jobsite at
about 4 p.m. each day (Tr. 43). Then, he testified that, “Frank
Willard asked me about not being on the job at a certain time. I
said it could be due to us floating hours” (Tr. 44). This term
refers to the practice of Respondent’s crews, when working at
locations several hours away from the shop. At these sites, the
crews often work late Tuesday through Thursday, so they can
drive to the site on Monday morning, arriving at midday and
leave the jobsite early on Friday and be back to Respondent’s
shop by 5 p.m. on Friday. When “floating hours,” the crews
record 8 hours per day of work on their timesheets even though
they worked more than 8 hours on Tuesday through Thursday
and less Monday and Friday.9 There is no credible evidence
that the Seneca Falls crew worked longer hours on some days
to make up for leaving early on others. Moreover, if Bidwell
and Szuszniak were leaving the jobsite each day at the times to
which they testified, there was no need for them to “float
hours.”
John Szuszniak testified that on August 27, after Noga and
Vitetta left the jobsite at about 2:30 p.m., he and Bidwell
cleaned off all the lights that the crew had to hang the next day.
Further, he testified that this task took about an hour and that
the two finished cleaning all the lights (Tr. 180–181). This
testimony, which accounts for a time period during which
Varco contends the Bidwell and Szuszniak were not at the site,
is inconsistent with Joseph Vitetta’s testimony as to how he
spent his time on Friday, August 30. Vitetta testified that he
and employee Terry Burdick cleaned, dusted, and then hung the
lights (Tr. 135). Vitetta testified that these lights were dusty
and had not been cleaned (Tr. 149).
Michael Noga’s testimony varied significantly within a few
minutes. Respondent’s counsel asked him:

Q. Mr. Noga, if Mr. Willard were to testify that he
visited the jobsite Wednesday, August 29, and observed
the crew, including yourself, departing at 2:30 p.m. would
that testimony be accurate?10
A. I don’t know.
Q. Do you have any reason to believe it would be in-
accurate?

9 This apparently has something to do with the requirements of the
New York prevailing wage law.
10 The correct date of Willard’s visit was Wednesday, August 28.
A. No. (Tr. 202–203).

However, Noga then continued to deny that he left the job-
site early on August 28 and minutes later testified that
Willard’s testimony would be inaccurate if he concluded that
Noga had left the jobsite prior to 3:30 p.m. and that Willard had
observed the crew leaving at 2:30 p.m. (Tr. 203–205).
Finally, Joseph Vitetta conceded at trial that his timesheets
for the week of August 26–30 were inaccurate (Tr. 143–144).
D. Analysis of the Alleged 8(a)(3) Discharges
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must generally make an initial showing that
(1) the employee was engaged in protected activity; (2) the
employer was aware of the activity; and (3) the activity was a
substantial or motivating reason for the employer’s action.
Once the General Counsel makes this initial showing, the bur-
den of persuasion shifts to the Respondent to prove its affirma-
tive defense that it would have taken the same action even if the
employees had not engaged in protected activity, Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981); La
Gloria Oil & Gas Co., 337 NLRB 1120 (2002).
However, when an employer discharges a group of employ-
ees to discourage employees generally from engaging in union
activities, it is the discharge, not the selection of individual
employees that is unlawful. Thus, the General Counsel is not
required to show a correlation between each employee’s union
activity and his or her discharge. Instead, the General Coun-
sel’s burden is to establish that the discharge was ordered to
discourage union activity or in retaliation for the protected ac-
tivities of some of the employees, ACTIV Industries, 277
NLRB 356 fn. 3 (1985). As the Second Circuit noted almost 40
years ago, “[a] power display in the form of a mass lay-off,
where it is demonstrated that a significant motive and a desired
effect were to ‘discourage membership in any labor organiza-
tion,’ satisfies the requirements of Section 8(a)(3) to the letter
even if some white sheep suffer along with the black,” Majestic
Molded Products, Inc. v. NLRB, 330 F.2d 603 (2d Cir. 1964).
Jeff Bidwell was the primary employee involved in the Un-
ion’s organizing effort. I find that Christine Kaiser and Frank
Willard were well aware of this fact. I infer that Kaiser and
Willard made the connection between the statements made by
Bidwell regarding the company’s pension plan and the union’s
representation petition received on or about August 20. More-
over, Christine Kaiser testified that more than one bargaining
unit member was supplying her with information about orga-
nizing campaign, including the distribution of union authoriza-
tion cards. Given the relatively small size of the bargaining
unit (approximately 16 employees), it can reasonably be in-
ferred that Kaiser and Willard were aware of the identity of the
leaders of the organizing campaign, and possibly all those in-
volved in union activity, La Gloria Oil & Gas Co., supra at
1122. Finally, if there was any doubt in the minds of Kaiser
and Willard about Bidwell’s support for the Union, those
doubts would have been dispelled by his attendance at the rep-
resentation case hearing on August 30.
I also find that Kaiser and Willard were aware of John
Szuszniak’s support for the Union. First of all, they were both
aware that Szuszniak had originally been referred to their com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 684
pany by the union’s hiring hall. Szuszniak also attended a un-
ion meeting and passed out two union authorization cards.
Since Chris Kaiser was being kept abreast of the organizing
campaign and the distribution of authorization cards, I infer that
she was aware of the identity of several union supporters—
including Szuszniak. She may also have been aware from these
sources that Joseph Vitetta and Michael Noga had attended
union meetings. Moreover, even if Kaiser did not have infor-
mation specifically abut Vitetta and Noga’s interest in the Un-
ion, she could have easily inferred that those employees work-
ing on Bidwell’s crew were likely union supporters.
Further, I conclude that Respondent harbored animus to-
wards the employees engaged in the organizing campaign.
First of all, I infer animus from Respondent’s surveillance of
the Seneca Falls crew, which it initiated within days of its re-
ceipt of the representation petition, and its failure to confront
the employees immediately upon discovering that they were
leaving the job early. These site visits were motivated by a
desire to find a basis for terminating union supporters and in-
timidating others employees who might be inclined to support
the Union. I also infer animus from the disparate treatment
accorded these four employees when compared to Respon-
dent’s lenient treatment of Brian Britton several months previ-
ously. I also draw this inference in part from a letter that Chris-
tine Kaiser and Frank Willard distributed to employees. This
letter accused those soliciting employees for the Union of mis-
representing the authorization cards’ significance despite the
fact that Respondent had no reliable knowledge that such mis-
representations were being made.11
Finally, I conclude that the General Counsel has established
that the discharge of the four employees was motivated by Re-
spondent’s antiunion animus. Additionally, I find that Respon-
dent has not met its burden of proving that it would have dis-
charged the four employees absent its motive to discourage its
employees from selecting the Union as their collective-bar-
gaining representative.
There are a number of factors that suggest discriminatory
motivation. The timing of the discharges, 2 weeks after the
filing a representation petition and the second working day after
the NLRB representation hearing, is such a factor. Another is
Respondent’s efforts to find a reason to discharge union sup-
porters. A third factor is the disparate treatment of the four
alleged discriminatees as compared to Respondent’s treatment
of a similar offense by Brian Britton several months previously.
I regard’s Respondent’s leniency towards Britton to be one
of the most critical factors in this case. In the spring of 2002,
several months before the beginning of the organizing cam-
paign, Britton missed work on a Friday, but then joined his

11 While Respondent’s brief states that the information provided by
Kaiser regarding the effect of the union authorization cards “was en-
tirely accurate,” Kaiser conceded that she had no basis for her asser-
tions that:
“It has come to our attention that there may be a number of
misrepresentations being made by some of those people who are
distributing these union cards;” and
“It has been reported that employees have been asked to sign
these union cards “so that they can get a meeting.” C.P. Exh. 2,
Tr. 421–430.
crew on its return to the shop so that he could turn in his time-
sheet, which indicated that he had worked 8 hours on that day.
This was an obvious attempt to cheat Respondent out of a day’s
pay. On Monday, the next working day, Respondent’s Vice-
President Frank Willard confronted Britton and asked him
where he was on Friday. Britton admitted that he had not been
at work. Willard asked him why his timesheet showed that he
had worked on Friday. Britton responded that he didn’t have
an honest answer for that question. Willard did not discipline
Britton. Willard told Britton he was disappointed in him and
that such behavior could not happen again. Britton assured
Willard that this wouldn’t happen again and amended his time-
sheet.
The General Counsel and Charging Party contend that the
disparate treatment of the four alleged discriminatees as com-
pared to Britton is persuasive evidence of discriminatory mo-
tive. They also suggest that while Willard immediately con-
fronted Britton with his misconduct, Respondent let the dis-
criminatees’ misconduct continue because it was looking for a
reason to rid itself of the key union supporter (Bidwell) and
viewed this as an opportunity to stymie the organizing drive.
I conclude that Respondent checked up on the Seneca Falls
crew from August 26–29, with the primary, and possibly the
sole, objective of finding grounds for terminating them and
inhibiting the Union’s efforts to organize their rigging employ-
ees. An employer interested only in getting its employees to
work a full day would have taken immediate remedial action on
August 26. Not only would an employer normally confront
employees about ”stealing time” when the employer first be-
came aware of such an offense, Respondent’s failure to imme-
diately confront the Seneca Falls crew, as it confronted Britton,
establishes discriminatory motivation with regard to its surveil-
lance of the four alleged discriminatees.12
Respondent contends that Britton’s infraction is not compa-
rable to that of the four alleged discriminatees. It argues that
Britton immediately acknowledged his misconduct, expressed
remorse, amended his timesheet and assured Willard such mis-
conduct would not recur. In contrast, the alleged discriminatees
continued to claim wages for work they did not perform and
gave Respondent no reason to believe they would not “steal
time” in the future. This, it argues is important because Re-
spondent’s riggers most often work at remote jobsites where
Respondent had little ability to monitor them.
At first blush, Britton’s belated forthrightness suggests a
meaningful distinction between his offense and that of the Se-
neca Falls crew. However, on closer examination, Britton’s
“remorse” and willingness to correct his timesheet fails to pro-
vide a convincing nondiscriminatory basis for treating him with
a verbal warning and terminating the four alleged discrimina-
tees. As the charging party notes in its brief, “Britton could not

12 In this regard, Christine Kaiser testified that Willard informed her
on August 26, that Varco had discovered that the crew left the jobsite
early. She directed Willard to have Varco (and possibly Shippers) visit
the site again the next day and document what he observed. She did
not tell Willard to confront the employees, as he had confronted Brit-
ton, and Willard did not do so on his own volition.
SYRACUSE SCENERY & STAGE LIGHTING CO. 685
very well deny that he had not been at work when [his] entire
crew was there and he was completely absent [p. 24, fn. 38].”
Britton had no choice but to confess his deliberate attempt to
defraud Respondent. Had Bidwell, Szuszniak, Noga, and
Vitetta been informed that Varco, Shippers, and Willard had
been spying on them all week, they may also have recanted,
expressed remorse and offered to change their timesheets.13
More importantly, if like Britton, the four had been confronted
with their misconduct on Monday, August 26, they may also
have modified their behavior, not submitted false timesheets
and promised not to leave work early in the future. Having
been caught and chastised, the four may have been just as in-
clined to be honest in the future as Britton, who worked in loca-
tions far from Syracuse after he had demonstrated a capacity
for blatant dishonesty. Thus, I conclude that Respondent’s
disparate treatment of the four discriminatees, as compared
with Britton, establishes the pretextual nature of the Company’s
explanation for the discharges.
E. The 8(a)(1) Violation: Posting of No-Solicitation Signs
On June 18, 2002, signs hung on the front and rear entrances
of Respondent’s building read:

No Solicitations
We welcome our customers at any time the office is open.

Those offering us their products and services are seen only by
appointment, made in advance by phone.

Bidwell testified that these signs were posted for the first
time on June 18, 2002, after he had a conversation with Project
Manager Joseph Varco indicating that Frank Willard was aware
of the union organizing drive. Varco and Christine Kaiser testi-
fied that the signs had been posted for several years previously.
I dismiss the alleged 8(a)(1) violation because I credit the
testimony of Christine Kaiser and Joseph Varco and find that
the “no solicitation” signs at the rear and side entrances of Re-
spondent’s facility had been posted for sometime prior to the
advent of the organizing campaign. Moreover, the signs on
their face do not appear to be directed at union activity. They
appear to prohibit commercial solicitation without an appoint-

13 Noga may have offered to correct his timesheets on September 4.
ment. I therefore conclude that in posting these signs Respon-
dent was not interfering with, restraining or coercing employees
in the exercise of their Section 7 right to organize.
III. REPORT AND RECOMMENDATIONS ON
CHALLENGED BALLOTS
In general, to be eligible to vote, an employee must have
been employed both on the eligibility date, which in this case
was December 15, 2002, and on the election date, which in this
case was January 6, 2003. Discriminatory personnel actions
cannot be used to make an employee eligible or ineligible to
vote in a Board election. Having found that Respondent’s dis-
charge of Jeff Bidwell, John Szuszniak, Joseph Vitetta, and
Michael Noga violated Section 8(a)(3) and (1) of the Act, it
follows that they should properly be considered as employees at
all relevant times. Accordingly, I find they were each eligible
to vote in the election. I recommend the challenges be over-
ruled and their ballots be counted.
CONCLUSIONS OF LAW
Respondent, Syracuse Scenery and Stage Lighting Co., Inc.,
violated Section 8(a)(3) and (1) of the Act on September 4,
2002, by discharging Jeff Bidwell, John Szuszniak, Joseph
Vitetta, and Michael Noga because they engaged in union ac-
tivity and/or to discourage all its employees from supporting
the union.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]