Wayne J. Griffin Electric

National Labor Relations Board - Board Decisions

Sep 27, 2001

335 N.L.R.B. 1362 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1362
Wayne J. Griffin Electric, Inc. and International
Brotherhood of Electrical Workers, Local 103,
AFL–CIO. Cases 1–CA–34180, 1–CA-34280, 1–
CA–34364, and 1–CA–34478
September 27, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE,
AND WALSH
On February 4, 1999, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief. The
Charging Party also filed exceptions and a supporting
brief, and the Respondent filed an answering 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions.2
and to adopt the recommended Order.

1 The Respondent and the 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 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
reco d and find no basis for reversing the findings. r
2 There are no exceptions to the judge’s recommended dismissals of
the 8(a)(1) allegations regarding the maintenance and enforcement of
rules 3.12 and 1.23 of the Respondent’s handbook. Nor are there ex-
ceptions regarding the reference by the Respondent’s president, Wayne
Griffin, to employee Stephen Foley as a “troublemaker.”
The Respondent has excepted to the judge’s findings of violations of
Sec. 8(a)(1), based on pars. 7(dd) and (kk) of the complaint, on the
ground that the allegations do not support the violations found. We
find the Respondent’s exceptions without merit. Par. 7(dd) alleges that
about June 26, 1996, at a jobsite in Framingham, Massachusetts, the
Respondent promised employees benefits if they refrained from union
activities. Par. 7(kk) alleges that about July 8, at a jobsite in Framing-
ham, Massachusetts, Griffin told employees they should not associate
with prounion employees. The judge found that after employee Sean
Schultheis returned to work around June 24 following an injury, he had
a telephone conversation with the Respondent’s president, Wayne
Griffin, in which Griffin asked Schultheis where he wanted to go with
the Company. Griffin also advised that Schultheis would be judged by
the people he hung around with. This conversation followed Schul-
theis’ being admonished by a foreman for having lunch with an open
union supporter. The judge found that these facts supported the allega-
tions of both paragraphs and sustained the alleged 8(a)(1) violations.
We affirm the judge’s findings. Although both paragraphs referred to a
job site rather than a telephone call, and the actual date of the telephone
conversation appears to have been sometime between the June 26 and
July 8 dates alleged therein, we find that the violations found by the
judge are sufficiently related to the allegations in both paragraphs. We
further find that the violations were fully and fairly litigated. Indeed, as
noted by the judge, Griffin acknowledged the substance of the conver-
sation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wayne J. Griffin Electric,
Inc., Holliston, Massachusetts, its officers, agents, suc-
cessors, and assigns shall, take the action set forth in the
Order.

Erica F. Crystal, Esq. and Susan Lawson, Esq., for the Acting
General Counsel.
Dion Y. Kohler, Esq. and Jonathan J. Spitz, Esq., for the Re-
spondent.
Burton E. Rosenthal, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge.
This case was tried in Boston, Massachusetts, on February 10–
13, March 24–27, and May 6–8, 1998. The charges were filed
and amended, on various dates between June 3, 1996, and
March 12, 1997, by International Brotherhood of Electrical
Workers, Local 103, AFL–CIO (the Union). Based on these
charges and amended charges, the consolidated complaint was
issued March 24, 1997, alleging that the Respondent, Wayne J.
Griffin Electric, Inc., violated Section 8(a)(1) and (3) of the Act
in a number of respects. The Respondent filed its answer to the
consolidated complaint on April 4, 1997, denying that it com-
mitted the unfair labor practices alleged and raising several
affirmative defenses. The consolidated complaint and answer
were amend-ed further during the course of the hearing.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel, the Respondent, and the Charg-
ing Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with its principal office lo-
cated in Holliston, Massachusetts, is an electrical contractor in
the construction industry. The Respondent annually purchases
and receives goods and materials valued in excess of $50,000
directly from points outside the Commonwealth of Massachu-
setts and performs services valued in excess of $50,000 in
States other than the Commonwealth of Massachusetts. The
Respondent admits and I find that it is an employer engaged in

As we adopt the judge’s finding that John Leombruno is an agent of
the Respondent, we find it unnecessary to pass on the judge’s additional
finding that Leombruno is a statutory supervisor within the meaning of
Sec. 2(11).
1 After the close of the hearing, the parties entered into a stipulation
regarding the contract value of jobs run by certain named foremen.
Counsel for the General Counsel attached the stipulation to her brief as
Jt. Exh. 1 and moved for its receipt into evidence. Based on the agree-
ment of the parties, Jt. Exh. 1 is received. The transcript contains a
number of typographical and spelling errors, some of which have been
noted by the Parties in their briefs. Where the error is significant, I have
corrected the record in the pertinent portion of this decision.
335 NLRB No. 104
WAYNE J. GRIFFIN ELECTRIC 1363
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent amended its answer at the hearing to admit,
and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The consolidated complaint, as amended at the hearing, al-
leges 39 instances of independent violations of Section 8(a)(1)
of the Act committed by the Respondent’s president, Wayne J.
Griffin, and several project managers and foremen on various
dates between February 20 and December 1996.2 These alleged
violations, which included interrogation, threats, statements of
futility, and statements creating the impression of surveillance,
allegedly occurred at the Respondent’s office in Holliston and
at jobsites in Framingham, Mashpee, and Stoughton, Massa-
chusetts. The consolidated complaint further alleges that certain
rules maintained in an employee handbook during the 10(b)
period, the enforcement of some of these rules through threats
and warnings to employees in April, and a revised rule which
was issued to employees on November 8, violated Section
8(a)(1) because the rules interfered with, restrained, and co-
erced employees in the exercise of Section 7 rights. The con-
solidated complaint alleges that the Respondent further violated
Section 8(a)(1) on June 21 by discharging Supervisor James
Lexner because he refused to commit unfair labor practices.
Finally, the consolidated complaint, as amended, alleges that
the Respondent violated Section 8(a)(1) and (3) by issuing ver-
bal and written warnings to Todd Boylan; denying overtime to
Steven Foley; and evaluating Dan Ferrick and Richard
O’Connell negatively under “Loyalty” because of their union
activities and support.
The record establishes that Griffin, the Respondent’s presi-
dent, founded the Company 22 years ago in the basement of his
parent’s home. At the time of the hearing, the Respondent em-
ployed in excess of 350 employees and was organized into two
divisions: the service division, supervised by Project Manager
Gary Mosca, which typically performs small projects valued at
less than $50,000, and the construction division, which is fur-
ther divided into three regions, i.e., New England, North Caro-
lina, and Alabama. Despite the growth of the Respondent into a
large construction contractor with work in far-flung locations,
Griffin has remained in control of virtually every aspect of the
Respondent’s business. The record reflects that he conducts
virtually every job interview, makes the ultimate decision to
hire and fire employees, is involved in making job assignments,
and approving raises and vacation requests. When a job loses
money, Griffin decides whether the foreman must complete a
detailed questionnaire, referred to as a “job lost form” to ac-
count for the loss and then meets with the foreman and project
manager to review the performance of the job. The record fur-
ther reflects that Griffin is not reluctant to telephone employees
at home, or visit them at work, when he has a problem or con-
cern. There is also ample evidence in the record to establish
that “loyalty,” to the Respondent and to its president, is a very

2 All dates are in 1996 unless otherwise indicated.
important element in the Respondent’s corporate culture. Em-
ployees and supervisors are evaluated on it, Griffin and many
of his supervisors and foremen mention it in conversation and
in appraisals of themselves and their subordinates, and it be-
came a factor in the Respondent’s opposition to the Union.
Thus, it is apparent from this record that Griffin has a lot in-
vested, not only financially but emotionally, in the success of
his Company and that he views attacks on the Respondent as
personal attacks.
Gerard Richards is the Respondent’s operations manager
and, essentially, Griffin’s right-hand man. Reporting to Rich-
ards, and ultimately to Griffin, are project managers whom the
Respondent admits are supervisors within the meaning of the
Act. The project managers are assigned to oversee one or more
construction projects and are responsible for maintaining the
profit margin for their respective jobs. The record reflects that
these project managers possess and exercise significant author-
ity vis-à-vis the field employees, including assignment and
transfer between jobs, overtime authorization, discipline, and
recommending raises. The project managers are not resident on
the jobs, but work out of the Respondent’s Holliston office and
visit the jobsites on a regular basis. The project managers also
maintain regular contact with the Respondent’s project foremen
who are present on site and oversee the day-to-day performance
of the contract. With the exception of two foremen, Lexner and
John Leombruno, the parties agree that the project foremen are
not statutory supervisors. However, the General Counsel al-
leges, and the Respondent denies, that certain foremen named
in the consolidated complaint are agents of the Respondent
within the meaning of Section 2(13) of the Act. With respect to
Lexner and Leombruno, the Respondent identified these two
individuals as “large project foremen” to differentiate them
from the other foremen named in the consolidated complaint.
The General Counsel, while arguing that there is no such posi-
tion as “large project foreman,” alleges that Lexner and Leom-
bruno are statutory supervisors. Respondent agreed with the
General Counsel that at least Lexner was a supervisor within
the meaning of the Act.
The Respondent is a nonunion, or merit shop, contractor.
The record reveals that the Union has utilized various means to
have the Respondent become a union-signatory contractor for a
number of years without any success. Although the Respondent
has occasionally entered into project labor agreements with
other International Brotherhood of Electrical Workers (IBEW)
local unions, it has never executed a collective-bargaining
agreement with the Union. It is undisputed that, in the summer
of 1995, while pursuing a bid on the Suffolk County Court-
house construction project, the Respondent contacted the Union
for the purpose of discussing a project labor agreement that
would apply only to that job. Griffin and Richards met with the
Union’s former business agent, Donn Berry, and Business
Manager Paul Ward and outlined their proposed project agree-
ment. On August 28, 1995, a written proposal was submitted to
the Union. There is no dispute that the Union rejected this pro-
posal, requesting that the Respondent instead sign a collective-
bargaining agreement covering all work within a 50-mile radius
of Boston. Although initial contacts appeared promising, the
relationship between the parties soured, apparently as the result
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1364
of a comment made by Berry to Richards in which he made a
reference to “big guns” in an attempt to pressure the Respon-
dent to come to agreement with the Union. Regardless of the
exact phrase used by Berry, or his intent, it is clear that Griffin
objected to Berry’s approach to negotiations and no further
discussions were held between the parties.
In early 1996, the Union began a “salting”3 campaign to or-
ganize the Respondent’s employees. In evidence is a February
15 letter from Berry to the Union’s members enlisting their
assistance in the Union’s efforts to organize the Respondent, “a
notorious, nonunion contractor,” by becoming salts. The Union
held meetings and training sessions at which members were
taught how to gain employment with the Respondent and or-
ganize its employees. There is no dispute that members were
given advice regarding how to lie on their employment applica-
tions to conceal their identity as union members. The complaint
alleges that four union members who applied for jobs with the
Respondent, in March, April, and July, were interrogated by
Griffin or Sandy Crowe, the Respondent’s human resource
manager.
In early 1996, the Union also began a campaign to have the
Respondent’s debarment from Federal contracts reinstated.4
This campaign was publicized in the Boston newspapers and
generated a February 20 memo from the Respondent’s presi-
dent to its field employees. The complaint alleges that state-
ments in this letter interrogated employees and created the im-
pression that their union activities were under surveillance.
About a month later, Griffin sent another memo to his field
employees regarding the Union’s attempts to have the Respon-
dent barred from performing public works projects for the
Commonwealth of Massachusetts. This letter is alleged to con-
tain similar unlawful statements.
There is no dispute that the Respondent has routinely distrib-
uted to its employees handbooks containing, inter alia, rules of
conduct and specifying the discipline which may result from
their violation. Employees sign forms acknowledging receipt of
the handbook and agreeing to read and comply with the rules
and procedures contained therein. As noted above, several of
these rules are cited by the General Counsel as unlawfully in-
terfering with employees’ Section 7 rights. There is no dispute
that, on April 23, the Respondent issued written warnings to
employees Maguire and Boure for violating one of these rules,
prohibiting the discussion of wages. On May 29 and June 13,
however, the Respondent rescinded these warnings and on No-
vember 8, issued revised rules which attempted to correct some
of the concerns cited by the General Counsel. One of the issues
in this case is whether the Respondent’s attempt to cure these
alleged unfair labor practices was effective under the Board’s
Passavant line of cases.5

3 The transcript erroneously refers to this practice as “soughting.” I
shall correct the record to have “salting” replace “soughting” wherever
it appears.
4 At some undisclosed date in the early 1990s, the Respondent had
been placed on a list of companies excluded (“debarred”) from Federal
procurement because of Davis-Bacon Act violations. In September
1994, the Respondent was removed from this list, upon a petition it
filed.
5 Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
Beginning in about April, and continuing at least through
June, the Union began an overt organizing campaign among the
Respondent’s employees, utilizing several longtime members
who had been hired by the Respondent, including Todd Boylan,
Steve Foley, Maguire and Frank Bonito. This organizing oc-
curred primarily at two jobs in Framingham, Massachusetts,
i.e., Bose6 and Adessa, and at the Mashpee School. On May 31,
the Union staged a walkout lasting several days during which
these and other union members picketed at the Respondent’s
jobsites. The walkout ended on June 6. No more than a dozen
employees participated in the walkout. It is undisputed that, in
response to this union activity, Griffin visited several jobsites
and met with employees, individually and in groups, to express
his views regarding the Union. At issue in this case is whether
any statements he made in the course of these meetings violated
the Act. Several project managers and foremen also discussed
the Union with individual employees during the spring and
summer and the lawfulness of these conversations, as well as
whether the Respondent is liable for the statements and conduct
of its nonsupervisory foremen are also at issue.
On June 21, the Respondent admittedly terminated Lexner,
whom the General Counsel concedes was a statutory supervi-
sor. The General Counsel and the Charging Party contend that
he was discharged for refusing to commit an unfair labor prac-
tice. The Respondent denies that Lexner was asked to commit
any unfair labor practices and asserts that he was terminated for
poor performance as foreman on the Bose job. Shortly after
Lexner was terminated, the Union notified the Respondent, by
letter, of the identity of its employee-organizers, including Boy-
lan, Ferrick, and Foley. Actions taken against these individuals
and employee O’Connell, not named in the Union’s letter, are
alleged to have violated Section 8(a)(3).
Although most of the union activity and the Respondent’s re-
sponse occurred in the period April through June, there are
allegations in the complaint of statements and conduct through
December. The record does not disclose whether the Union’s
organizing activity ever resulted in the filing of a petition to
represent the Respondent’s employees.
B. Status of the Foremen
The General Counsel concedes that the project foremen are
not statutory supervisors. However, the General Counsel seeks
to hold the Respondent liable for certain acts and statements of
individual foremen on the theory that they are agents of the
Respondent. The Board applies common-law principles when
examining whether a nonsupervisory employee is an agent of
the Employer. Apparent authority results from a manifestation
by the principal to a third party that creates a reasonable basis
for the latter to believe that the principal has authorized the
alleged agent to perform the acts in question. The test is
whether, under all the circumstances, employees “would rea-
sonably believe that the . . . [alleged agent] was reflecting com-
pany policy and speaking and acting for management.” Zim-
merman Plumbing & Heating Co., 325 NLRB 106 (1997);
6 The name of this project is spelled incorrectly at various points in
the transcript. The record is corrected to replace “Bows” with “Bose”
wherever it appears.
WAYNE J. GRIFFIN ELECTRIC 1365
Southern Bag Corp., 315 NLRB 725 (1994); Great American
Products, 312 NLRB 962, 962–963 (1993), and cases cited
therein. Under Section 2(13) of the Act, the question of whether
specific acts performed were actually authorized or subse-
quently ratified should not be controlling when making agency
determinations.
The overwhelming weight of the evidence in the record es-
tablishes that, for most purposes, the project foremen are agents
of the Respondent. They are generally the only representative
of the Respondent on the jobsite every day. They regularly
interact with the General Contractor and other subcontractors
regarding the job. The foremen coordinate the work of the Re-
spondent’s employees, laying out each phase of a job in accor-
dance with the specifications and blueprints and assigning indi-
vidual tasks to crews of employees. They are assigned by the
Respondent to conduct regular safety meetings with the em-
ployees and transmit to the Respondent’s office forms signed
by the employees certifying attendance at such meetings. They
are also responsible for collecting other paperwork, such as
timesheets, SKU sheets, leave requests, etc., and transmitting
them to the office. The foremen fill out evaluations of individ-
ual employees and crews and discuss these evaluations with the
employees. The record further reveals that the Respondent re-
lies upon its foremen to apprise project managers and the office
of violations of company rules so that discipline may be meted
out. Finally, I note that the Respondent included the foremen in
a meeting with its former labor counsel in May at which the
union organizing drive was discussed and instructions were
given regarding how to respond within the confines of the law,
and that the Respondent instructed the foremen by memo re-
garding procedures to take in the event of picketing at their
jobsites.
Although the Respondent is correct that most of the fore-
men’s duties were ministerial, and that they had no independent
authority, that only proves that they were not statutory supervi-
sors. Clearly, based on their interactions with the employees on
the job, the employees would reasonably believe that their
foreman was acting on behalf of management with respect to
the foreman’s communications or instructions relating to their
work or the Respondent’s policies and procedures. Whether
specific acts or statements of individual foreman regarding the
Union’s organizational campaign violated Section 8(a)(1) de-
pends on whether the conduct falls within the scope of this
apparent authority. See GM Electric, 323 NLRB 125 (1997);
Von’s Grocery Co., 320 NLRB 53, 56 (1995). I will address
this issue in connection with the specific allegations of the con-
solidated complaint.
The General Counsel also argues in her brief that the posi-
tion “large project foreman” does not exist. I find it unneces-
sary to resolve this issue because, whether Lexner was a “large
project foreman” or “foreman” who worked on a large project
is immaterial. The General Counsel alleged in the consolidated
complaint and the Respondent admitted in its answer that, re-
gardless of his title, Lexner was a statutory supervisor. As to
Leombruno, he is at least an agent of the Respondent in his
capacity as a “foreman.” Because Leombruno replaced Lexner
on the Bose job, I must infer that he had the same authority and
would also be a supervisor within the meaning of Section 2(11)
of the Act. Respondent offered no evidence to suggest that
Leombruno had any less authority. Accordingly, I find that
Lexner and Leombruno were statutory supervisors in their re-
spective capacities as foreman of the Bose job.
C. Griffin’s February 20 and March 21 Memos to Employees
(Pars. 7(rr)–(uu) of the Consolidated Complaint)
On February 20, the Respondent distributed a memorandum,
signed by its president, to all field employees. Attached to the
memo was a copy of a newspaper article with the headline,
“Contractor mulls action against Local 103.” The article dis-
cussed the Union’s attempts to have the Respondent’s debar-
ment reinstated and the Respondent’s consideration of legal
action against the Union. The article quotes Griffin as saying
that his Company and employees had been subjected to threats,
intimidation, distorted facts and false claims, and that workers’
vehicles had been vandalized at a job in Cambridge. In the
cover memo to employees, Griffin states:

As you can tell from the article the International
Brotherhood of Electrical Workers (IBEW) has targeted
our company for its normal harassment activities because
of the recent work we have been awarded.
Please let me know of any situations you experience
which are union based activities, as we are attempting to
track the location and frequency of such issues.

On March 21, the Respondent sent another memorandum,
signed by Griffin, to all field employees to “call [their] atten-
tion to recent developments stirred up by the Unions which
relate to our company and public construction in Massachu-
setts.” Griffin then described the Union’s petitioning of State
legislators to bar the Respondent from public work and the
Respondent’s own efforts to solicit support from legislators.
Griffin concludes his memo as follows:

I welcome any questions you may have and would appreciate
hearing of any other union activity that you may become
aware of. Please call me . . . [telephone number omitted].

The General Counsel alleges that Griffin, by these memos,
interrogated employees by asking them to report on the union
activities of fellow employees and created the impression
among the employees that the Respondent was keeping their
union activities under surveillance. The Respondent argues that
the solicitation of employees to report on “union activity” must
be read in context. According to the Respondent, the employees
reading these memos would understand that the only activity
that Respondent asked them to report was unprotected activity,
i.e., threats, vandalism, etc.
It is well established that an employer’s request that employ-
ees inform as to other employees’ union activities has the ten-
dency to exert a coercive influence on employees’ organiza-
tional rights. Even when phrased as requests to report “harass-
ment,” the Board has found such statements unlawful. Haw-
kins-Hawkins Co., 289 NLRB 1423 (1988), and cases cited
therein. The Respondent relies on the court of appeals decision
in Mississippi Transport v. NLRB, 33 F.3d 972, 976 (8th Cir.
1994), reversing the Board. The court found that a memo ask-
ing employees to report harassment was not unlawful when
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1366
considered in the context of constant complaints from the em-
ployer’s employees that nonemployee union organizers were
harassing them and interfering with their job performance. Ac-
cording to the court, the language of the memo made clear to
employees that the activity they were being asked to report was
unprotected.
The Respondent’s two memos here provide no such context
to its employees. This record is devoid of any evidence that
employees of the Respondent were harassed by the Union, or
that the Respondent had received complaints from any employ-
ees of unprotected activity by the Union or by the employees
organizing on its behalf. The request in each of the memos was
not directed at specific unprotected conduct, but asked for in-
formation about “any other union activity,” or “union based
activities.” Such an open-ended request would convey to em-
ployees that the Respondent wanted to know about any union
activity of which they were aware, so that the Respondent could
keep tabs on the nature and extent of such activity, without
regard to whether the activity was protected. By asking em-
ployees to report on potentially protected activity, the Respon-
dent violated Section 8(a)(1) of the Act, as alleged in the com-
plaint.
D. The Respondent’s Rules, Their Enforcement and Revision
and Related Allegations
(Pars. 7(e)–(h), (vv)–(ww) and 8–11 of the Consolidated Com-
plaint)
The General Counsel offered into evidence a document enti-
tled “Wayne J. Griffin Electric, Inc. Company Policy” which is
dated April 1994. Robert Boure testified that he received this
version of the employee handbook when he was hired in the
spring 1996. Richards conceded that the 1994 handbook was in
effect during the first half of 1996. The handbook contains the
following provision under “Employment Regulations and Pro-
cedures”:
Company Business Information
Company business including but not limited to such
things as figures on wages, sales, cost, profits, jobs, bids,
prices, customers, production techniques, blue prints, take
offs, bills of material, estimating techniques, etc. are
strictly confidential. Company business must not be dis-
cussed with persons not directly connected with the com-
pany and/or persons not authorized to receive such infor-
mation.
Any employee who violates this policy may be termi-
nated without notice.

In the section entitled “Personal Conduct,” the handbook identi-
fies what the Respondent considers “Unacceptable Conduct”
and the disciplinary action that will result when an employee’s
behavior is deemed unacceptable. These rules of conduct are
divided into three sections, each with different steps in progres-
sive discipline. Under section 3, subject to termination for the
first offense, are the following:

3.12 Unlawful or improper conduct on or off the com-
pany premises which affects either your ability or another
employee’s ability to perform job responsibilities and/or
affects the company’s goodwill and reputation in the
community.
3.13 Release of any company business information to
unauthorized personnel.
. . . .
3.16 Discussion of personal wages with other employ-
ees.

The General Counsel offered no evidence that the Respondent
has enforced rules 3.12 or 3.13 through issuance of discipline.
As noted above, there is no dispute that the Respondent is-
sued written reprimands to Boure and Maguire on April 23 for
violating rule 3.16.7 Maguire testified that the issue came up
when his supervisor, Mosca, asked him to keep an eye on
Boure. Maguire told Mosca that he was not paid to watch other
employees, pointing out to Mosca that Boure was paid more
than he was. When Mosca asked Maguire how he knew that,
Maguire told Mosca that he had asked Boure what he was mak-
ing. Mosca told Maguire that was against the rules and that
Maguire had no business asking Boure about his wages. Mosca
said that they would have to meet with Griffin to discuss it.
Mosca’s version of this conversation is consistent with
Maguire’s testimony. Boure testified that Mosca asked him,
probably after the above conversation with Maguire, whether
he had discussed his wages with Maguire. When Boure admit-
ted that he had, Mosca told him, “[Y]ou’re not allowed to dis-
cuss wages, it’s in the company handbook,” and that they
would have to meet with Griffin about it. Mosca did not testify
about this conversation.
According to Boure, the day after Mosca asked him about his
discussion of wages with Maguire, he and Maguire had a meet-
ing with Griffin. Sandy Crowe and Mosca were also present.
Griffin asked Boure to read rule 3.16 to himself and then asked
if the rule was easily understood. Boure said it was. He was
given a reprimand to sign and was excused from the meeting.
Prior to being excused, Griffin had asked Maguire to read the
rules aloud and Maguire was reading as Boure left. Maguire
testified that, after Boure was excused, Griffin lectured him for
30 minutes about the rules and asked Maguire why he wanted
to know Boure’s wages. Maguire said he was curious because
he and Boure were doing the same job, Maguire had more ex-
perience and had been with the company longer. Griffin then
asked if Maguire wanted to know Griffin’s wages. Maguire
said no, because their jobs were different. Griffin then said it
took him 20 years to write the rules and they had to be adhered
to by all employees. He then gave Maguire his written repri-
mand and told Maguire to read the rules. Griffin also told Mo-
sca to test Maguire on the rules in a few weeks. Although Grif-
fin acknowledged meeting with Boure and Maguire to give
them the reprimands, he did not dispute Maguire and Boure
regarding what was said in the meeting. Mosca testified only
that separate meetings were held with Boure and Maguire at

7 Maguire testified that he told a couple other employees that he had
received this reprimand. There is no evidence that the Respondent was
aware that Maguire had disseminated this information, nor any evi-
dence that the Respondent itself communicated to other employees that
it had disciplined Maguire and Boure for violating rule 3.16.
WAYNE J. GRIFFIN ELECTRIC 1367
which each was given his warning. Crowe was not asked about
this meeting.
Mosca testified that he did not know that Maguire was a
member of the Union at the time he was given the warning, but
learned this on May 19 when Maguire handed him some union
literature on a job in Holliston and told Mosca that he was a
union member. Mosca testified that he relayed this information
to Griffin. According to Richards, Griffin instructed him in
May to look into the legality of the warnings and that, after
consulting with counsel, determined that the warnings should
be rescinded. There is no dispute that Richards and Crowe met
with Maguire on May 30 to advise him that the reprimand was
being rescinded. Mosca was also present for this meeting, but
Boure was not. According to Richards, he told Maguire that,
“in light of circumstances of recent development,” the Respon-
dent was making the reprimand null and void. Maguire was
given a memo confirming this which was signed by Griffin and
Mosca and which Maguire signed at the meeting. It is undis-
puted that Maguire asked if Boure would receive the same
memo and that Richards told him it was no concern of his. Ac-
cording to Richards, on the day of the meeting, Maguire had
called the office and informed the Respondent that he had dis-
tributed union literature on his break. Richards testified that
Maguire wanted to know if this was a violation of company
policy and that he was told that it was not as long as he does not
do it on working time. Richards testified further that, during the
meeting at which the reprimand was rescinded, he also told
Maguire that he was free to discuss wages and do any other
organizing activity as long as he did so in accordance with law
and the company policy. Richards did not advise Maguire that
rule 3.16 or any other rules in the handbook were being re-
scinded or changed at that time.
Although the Respondent’s memo rescinding Boure’s repri-
mand is dated May 29, he did not sign it until June 13, the same
date it was signed by Mosca. Boure recalled that he did not
learn that his warning was rescinded until he gave Mosca his
two weeks notice.8 According to Boure, Mosca encouraged him
to stay and offered to relocate him to another job. Mosca told
Boure that the Respondent had ripped up his warning, that it
was illegal and that the Respondent was only trying to get
something on Maguire because he was a problem. After he
gave his notice, Boure met with Mosca and Sandy Crowe and
they gave him the memo explaining that his warning was null
and void. Mosca specifically denied telling Boure that the
warning was just an attempt to get Maguire. According to Mo-
sca, when Boure gave his 2-week notice, he asked why he was
leaving. Boure told Mosca something about a problem with the
mileage limit on his leased vehicle and Mosca offered to make
arrangements for him to work closer to home. Mosca testified
that Boure just shrugged and said he would think about it. Ac-
cording to Mosca, the subject of the reprimand did not come up
in this conversation. Although Mosca denied that Maguire was
discussed, he acknowledged asking Boure if problems he had
with Maguire had anything to do with his resignation and that
Boure said they did not. Neither Crowe nor Richards testified

8 Boure recalled that he left the Respondent in about July.
regarding any meetings with Boure at which he was informed
that the warning was rescinded.
Richards conceded that other employees were never told that
the warnings to Maguire and Boure had been rescinded. As
noted above, Richards would not even tell Maguire that
Boure’s reprimand was rescinded when he asked about it.
There is no dispute that, despite what Richards may have told
Maguire about his right to discuss wages with other employees,
the rules set forth above remained in effect and employees were
not advised until November that they were free to discuss
wages with one another.
Richards admitted that, as a result of the unfair labor practice
charges, he and counsel reviewed the employee handbook dur-
ing the summer and revised the rules. Employees were notified
of the changes by memos dated November 13 and 22. Among
the changes were a revised definition of “Company Business
Information” which does not include wages, but does include
labor costs, and a new list of “Group I Violations.” The General
Counsel alleges that only one of the new rules violates Section
8(a)(1), i.e., “1.23 Inappropriate conduct that reflects unfa-
vorably on the company and/or fellow employees.” The rule
prohibiting discussion of wages does not appear on this list.
However, the memo and attached revisions in evidence do not
specifically advise employee that rule 3.16 has been revoked.
As the General Counsel points out, the rules alleged to be
unlawful were in section 3 of the Respondent’s 1994 employee
handbook, not section 1. It is unclear from the record whether
he list of Group I violations distributed to employees in No-
vember replaced all the rules in the 1994 handbook.
On May 20, 1997, Griffin sent a memo to employee Rodney
Regan regarding a telephone conversation that Griffin and
Richards had with Regan about his job assignment. According
to the memo, Griffin advised Regan during the telephone con-
versation:

that any future concerns about major personnel issues were
matters that you should raise with me personally or with
Gerry Richards or Sandy Crowe. I stated that I wanted you to
take up important issues with the office rather than have other
personnel on your assigned jobsite become involved unneces-
sarily. Especially whereas I was personally involved in hiring
you to the company, it is appropriate to direct matters to me or
the office as I did not want to have uncontrolled jobsite dis-
cussions and concerns amongst other employees regarding
job assignments. Your situation was special and personal to
you and I requested that you keep such matters confidential
for the benefit of all. [Emphasis added.]

Board law is clear that an employer’s prohibition of employ-
ees’ discussion of wages is unlawful. Fredericksburg Glass &
Mirror, Inc., 323 NLRB 165 (1997), and cases cited therein.
The Respondent does not dispute the General Counsel’s con-
tention that rule 3.16 in the 1994 handbook and its enforcement
against Maguire and Boure violated Section 8(a)(1) of the Act.
Rather, the Respondent argues that it has effectively repudiated
this unlawful conduct under Passavant Memorial Area Hospi-
tal, supra. See also Kawasaki Motors Corp., 231 NLRB 1151
(1958). In order to effectively repudiate unlawful conduct, the
repudiation must be timely, unambiguous, specific in nature to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1368
the coercive conduct, and free from other proscribed conduct.
There must also be adequate publication of the repudiation to
the employees involved and there must be no proscribed con-
duct after the publication. Further, the repudiation should give
assurances to employees that the employer will not interfere
with their Section 7 rights in the future. Webco Industries, 327
NLRB 172 (1998); United Refrigerated Services, 325 NLRB
258 (1998).
Here, the unlawful conduct that the Respondent attempted to
disavow was the maintenance of an unlawful prohibition on
employee discussions of wages and discipline imposed under
the rule. As noted above, the rule was not rescinded until more
than 6 months after its unlawful enforcement and there is no
evidence that any employees, other than possibly Maguire and
Boure, were told that the rule was not in effect and that they
were free to discuss wages. Moreover, the notification to em-
ployees regarding the revisions to the Respondent’s handbook
did not specifically refer to elimination of the rule or give em-
ployees assurances that the Respondent would not interfere
with their exercise of Section 7 rights. With respect to the rep-
rimands issued to Maguire and Boure, they were not rescinded
until 5 and 7 weeks later. It appears that Maguire’s reprimand
was rescinded only after the Respondent became aware on May
19 that he was a member of the Union and was organizing his
fellow employees. Respondent did not notify Boure that his
warning was rescinded until he gave his 2-week notice. Neither
Maguire nor Boure were told that the other employee’s repri-
mand had also been rescinded. In fact, Boure was led to believe
that the Respondent gave him the reprimand in order to conceal
its attempt to get Maguire.9 I also note that the memos to
Maguire and Boure rescinding their reprimands are ambiguous.
The memo does not specify why the reprimands was being
declared null and void, does not inform them that the rule was
no longer in effect and gives no assurance that the Respondent
would not interfere with their exercise of Section 7 rights in the
future. Respondent itself concedes that no such assurance was
given, arguing that it was “implicit” in the rescission of the
reprimand. The Board requires that such assurances be explicit
for a repudiation to be effective. I also note that the attempted
repudiation did not refer to the unlawful interrogation and
threats, related to the Respondent’s enforcement of rule 3.16,
which are alleged in the complaint and that the Respondent
committed other unfair labor practices after the attempted repu-
diation, to be discussed infra. Accordingly, I find that the Re-
spondent has not effectively repudiated its unlawful mainte-
nance and enforcement of rule 3.16.
Based on the above, I find that the Respondent violated Sec-
tion 8(a)(1) by the maintenance of rule 3.16 in the employee
handbook it distributed to employees at least through the first

9 I credit Boure over Mosca to the extent their testimony differs as to
the timing of the rescission and statements made in connection
therewith. Although Boure’s recollection of events almost 2 years past
may not have been clear, he had sufficient recall of the significant
events and conversations. Moreover, he was not a union member, bore
some hostility toward Maguire and would have no reason to be untruth-
ful regarding these events. Mosca, on the other hand, being a loyal
foreman and aware of how much emphasis Griffin placed on such
loyalty, had reason to testify favorably for the Respondent.
half of 1996 and by its enforcement of the rule through the
reprimands issued to Maguire and Boure on April 23. In addi-
tion, because employees’ discussion of wages is protected con-
certed activity, Mosca’s questioning of Maguire and Boure
regarding their discussions and his statements to them that they
had violated company policy and would have to meet with
Griffin about it constituted unlawful interrogation and a threat
of discipline as alleged in paragraph 7(e). Griffin’s questioning
of Maguire and Mosca during the April 23 meeting regarding
what they had discussed and his warnings to them to read the
rules and adhere to them constituted unlawful interrogation,
interference with employees’ rights to engage in protected ac-
tivity and a threat of future discipline if they continued to dis-
cuss wages as alleged in paragraphs 7(f) through (h). Finally,
Mosca’s statement to Boure when he told him that his repri-
mand had been rescinded, that the Respondent was only trying
to get Maguire, violated Section 8(a)(1) of the Act, as alleged in
paragraphs 7(vv) and (ww), because it conveys the impression
to employees that the Respondent will fabricate warnings in
order to rid itself of employees who exercise their Section 7
rights.
The General Counsel also alleges that the Respondent’s
definition of “company business information” contained in the
1994 handbook violates Section 8(a)(1) of the Act because it
includes wages. Under the Respondent’s policies, as they ex-
isted before the November revisions, including rule 3.13, em-
ployees were subject to termination for discussing such “busi-
ness information” with unauthorized personnel. An employee
reading this definition might reasonably assume that discussion
of wages, benefits, and working conditions with a union repre-
sentative or with a Government agent investigating a complaint
would violate this rule. In Lafayette Park Hotel, 326 NLRB 824
(1998), a majority of the Board found that a rule prohibiting
employees from “divulging employer-private information” to
unauthorized individuals did not violate the Act because, on its
face, it did not cover the discussion of wages and benefits. The
original company business information rule here explicitly
covered wages and Griffin’s May 1997 memo to employee
Regan suggests that even the revised rule covers employee
discussions of their working conditions. For the reasons dis-
cussed above in connection with rule 3.16, I find that the Re-
spondent’s company business information policy and rule 3.13
would reasonably tend to chill employees in the exercise of
their Section 7 rights and therefore violates Section 8(a)(1).
The General Counsel, relying on the Board’s decision in
Cincinnati Suburban Press, 289 NLRB 966 (1988), argues that
rule 3.12 in the 1994 handbook and rule 1.23 in the revised
rules, also violate the Act because they are overly broad and
ambiguous. Recently, the Board held that, in determining
whether the mere maintenance of rules such as rule 3.12 and
1.23 violate Section 8(a)(1), the appropriate inquiry is whether
the rule would reasonably tend to chill the employees’ exercise
of Section 7 rights. If so, the maintenance of the rule would be
unlawful even absent evidence of enforcement. Lafayette Park
Hotel, supra. A majority of the Board found in that case that a
rule prohibiting “unlawful or improper conduct off premises
and during non-working hours” did not violate the Act because
the majority did not believe that the rule could be reasonably
WAYNE J. GRIFFIN ELECTRIC 1369
read as encompassing Section 7 activity. The Board distin-
guished Cincinnati Press, supra, noting that there was evidence
in that case that the employer had enforced such a rule against
protected activity. As noted above, there is no evidence here
that the Respondent has enforced either rule 3.12 or 1.23
against any conduct which would be protected under Section 7
of the Act. Accordingly, I shall recommend dismissal of the
complaint’s allegations with respect to rules 3.12 and 1.23.
E. Interrogation of Applicants
(Pars. 7(a)–(d) of the Consolidated Complaint)
Robert A. Arey Jr., a 13-year member of the Union, testified
that he went to the Respondent’s office in Holliston, Massachu-
setts, in September 1995, filled out an application and left a
copy of his resume. On cross-examination, Arey acknowledged
that he heard that the Respondent was hiring from “someone at
the Union hall” who suggested he look for work there. Accord-
ing to Arey, the former employers listed on his application and
resume and the two computer classes he took at the Union’s
joint apprenticeship and training committee (JATC) would
reveal his union affiliation. Arey testified that he made several
followup phone calls in September 1995, but was not called in
for an interview at that time. In March, when Arey learned that
the Respondent was again looking for electricians, he called the
Respondent’s office and asked if they still had his application
on file. As a result of this call, an interview was set up for Sat-
urday, March 16, at the Respondent’s office. Arey acknowl-
edged, on cross-examination, that he told the Union’s business
agent, Donn Berry, that he was going on the interview, that he
had gone on similar interviews at non-union contractors as part
of the Union’s COMET, or salting program, that he made a tape
recording immediately after the interview of what had hap-
pened and that he gave a transcript of this tape to the Union.
Arey was interviewed by Griffin, Human Resources Man-
ager Sandy Crowe, and a man identified as a project manager
whose name Arey could not recall.10 Arey testified that, during
the March 16 interview, Griffin asked him what his longest
period of unemployment had been and Arey told him 28
months. Griffin then asked Arey if he had health insurance
during that period and Arey responded affirmatively. Griffin
then asked if Arey had to make COBRA payments to keep his
health insurance in effect and Arey said, “No.” According to
Arey, Griffin did not explain why he wanted to know this. Arey
did not volunteer that his health insurance had remained in
effect under a provision of the Union’s health and welfare fund
which provides benefits to members on temporary layoff. Arey
recalled further that someone asked him about the two classes
he had taken at the JATC, and Griffin followed up by asking
Arey if he had gone through the JATC’s apprenticeship pro-
gram. Arey said he did not.
Crowe and Griffin did not dispute Arey’s testimony. Both
witnesses for the Respondent recalled Griffin asking Arey
about health insurance coverage during his period of unem-
ployment. Both denied being aware that the Union’s health and

10 It appears from Arey’s application in evidence and the testimony
regarding who was present for other interviews on March 16 that the
project manager was Gary Mosca.
welfare fund provides continued coverage, at no cost to the
employee, during temporary layoffs.11 According to Griffin and
Crowe, they routinely ask applicants who are unemployed at
the time of the interview questions about health insurance and
COBRA payments. They explained that they do this because
the Respondent will sometimes pick up the COBRA payments
for a new employee during the 90-day waiting period before the
Respondent’s own health insurance kicks in. In fact, the Re-
spondent did this for Lexner when he was hired. Crowe and
Griffin also recalled asking Arey if he had received his appren-
ticeship training at the JATC. They testified that they did so
because Arey had revealed on his application that he had taken
courses through the JATC. Crowe testified that the Respondent
routinely asks applicants where they received their apprentice-
ship training because this information assists in determining the
foundation the employee has for his skills. Crowe testified that
she is familiar with the JATC apprenticeship program, consid-
ers it an excellent program and has modeled the Respondent’s
own apprenticeship program on that of the JATC. Griffin did
not explain in as much detail his reason for asking this ques-
tion.
Frederick Murrin, a member of the Union since October
1988, testified that he applied for work at the Respondent in
February and was also interviewed on March 16. According to
Murrin, he called a blind ad in the newspaper and hung up
when the person answering the phone gave the Respondent’s
name. Murrin recalled seeing a letter from the Union about its
salting campaign against the Respondent. Murrin spoke to
Berry at the Union about applying for work with the Respon-
dent, but he did not go through the Union’s COMET training
before he applied. According to Murrin, Berry told him to ter-
minate the interview immediately if the Respondent asked if he
was a member of the Union.
Murrin was interviewed by Griffin, Crowe, and Project
Manager Mosca. Murrin admitted providing a fictitious work
history on his application, claiming that he did so because of
his belief that a nonunion contractor like the Respondent would
not hire him if he revealed his union affiliation. Murrin testified
that, during his interview, Griffin asked him about his work
experience and then, out of the blue, asked if Murrin was a
“signatory member” of he Union. Because Murrin did not un-
derstand what Griffin meant by that term, he asked Griffin to
rephrase the question. Griffin then asked if Murrin was a mem-
ber of the Union. Murrin replied that he was not. There is no
dispute that Murrin was hired within a week to 10 days of his
interview and that he worked for the Respondent a little over 2
months before quitting.
Griffin and Crowe specifically denied that Murrin was asked
if he was a “signatory member” or member of the Union.
Crowe, who sits in on most interviews, testified that she has
11 On rebuttal, the General Counsel offered the testimony of the Un-
ion’s former business manager, Russell Sheehan, that, during a meeting
in 1994, he told Griffin and Richards about this benefit. I find this
testimony unbelievable. Sheehan apparently recalled this specific bit of
information from a meeting that occurred 4 years before he testified,
yet he had no recollection when it took place. Sheehan acknowledged
there were no notes or other record of this meeting to refresh his recol-
lection.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1370
never heard Griffin ask any applicant about their union mem-
bership. Mosca generally denied hearing Griffin ask any appli-
cant if they were a member of the Union, but did not specifi-
cally deny that Murrin was asked this question. Although Mo-
sca recalled being present for Murrin’s interview, he had no
specific recollection of what was said during this interview.
Vincent Baker, another 13-year member of the Union, testi-
fied that he applied for a job with the Respondent in March and
was interviewed on either the first or second Saturday in April.
Baker recalled that Griffin, a woman from the office, i.e.,
Crowe, and two men identified as project managers were on the
panel that interviewed him. According to Baker, Griffin did
most of the talking. Baker testified that Griffin asked him about
the contractors he had listed on the application. According to
Baker, the last employer listed was Shawmut Design & Con-
struction12 and it had been a long time since he worked there.
Baker testified that Griffin asked him where he had worked
between Shawmut and the interview. Baker told Griffin he had
worked for Suffolk Electric, a small union shop. Griffin then
asked where he had worked for Suffolk and Baker told him at
the Boston Globe for 1-1/2 years. Griffin then asked if that was
a rate job, i.e., one on which employees were paid prevailing
wages. Baker replied that he did not know if it was a rate job,
but he was paid the union rate.13 Baker recalled that later in the
interview, Griffin asked him three times if he received his train-
ing at the JATC and that he replied negatively. Griffin never
asked Baker where he got his training. Baker also recalled that
Griffin asked him still later in the interview if he was on the
Union’s referral list. When Baker replied that he was, Griffin
said, “[S]o that means you’ll be going back to work there.”
Baker told Griffin that that was not necessarily so, that if he
found a good job with the Respondent, he would work for Grif-
fin. Baker admitted making notes of the interview and giving
them to the Union and that the Union may have asked him to do
this. Baker also admitted taking COMET training, but could not
recall if it was before or after he applied.
Crowe testified that Griffin asked Baker about the companies
he had worked for and that Baker volunteered the information
about Suffolk Electric being a union job. She recalled Griffin
asking Baker whether he had worked on public or private jobs.
According to Crowe, the Respondent asked applicants this be-
cause the Respondent does both kinds of work and attempts to
screen out applicants who are looking to work only on the
higher-paid rate jobs. Crowe also recalled Griffin asking more
than once if Baker had received his training at the JATC.
Crowe recalled further that Baker was asked if he knew when
he would be recalled because he had indicated he was on lay
off and subject to recall on his application.14 Griffin also re-
called asking Baker about the companies he worked for and
whether the work was rated because Baker listed his prior wage

12 This employer is incorrectly referred to in the transcript as “Char-
lotte Design & Construction.” The transcript is corrected to reflect the
correct name as Shawmut.
13 Baker’s testimony is not corroborated by his application. Shawmut
does not appear on the application and, rather than indicating a long
period of unemployment, the application identifies two recent employ-
ers, neither of which is Suffolk.
14 Baker’s application does not corroborate Crowe in this regard.
rate as $25/hour on the application. According to Griffin, Baker
replied that he did not know if it was a rate job but he received
the union rate. Griffin asked Baker what he meant and Baker
told him he had worked for Suffolk. Griffin responded,
“[O]kay, that’s not on your application,” and then explained
that the Respondent would be hiring Baker for private work as
well as public work and asked if he understood that. Griffin
testified that he asks applicants such questions because he
doesn’t want to hire “rate-mongers,” i.e., individuals who are
accustomed to working rated jobs and could not get by at the
Respondent’s lower rate for nonpublic jobs. Griffin could not
recall asking Baker about the JATC, but he did recall asking
him what number he was on the Union’s out-of-work roster.
Griffin explained that he asked Baker this because he had an-
swered, “[N]o,” in response to the question about recall on the
application and had told Griffin in the interview that he worked
for Suffolk, a company Griffin knew to be a union contractor.
According to Griffin, he wanted to know where Baker was on
the referral list to determine whether he was likely to stay with
the Respondent if hired.
Paul Pica, a member of the Union since 1988, testified that
he applied for a job with the Respondent in June and was inter-
viewed on July 13. Only Griffin and a woman, identified as
Administrative Assistant Emmie, were present. According to
Pica, he was given a booklet describing the Respondent’s bene-
fits to look through. While he was looking at it, Griffin asked
Pica if he had ever gone to school at the JATC. Pica testified
that he did not respond but continued looking blankly at the
literature in order to appear as if he did not know what Griffin
was talking about. After a pause, Griffin continued, “[O]r was it
just Wentworth?”15 Pica replied, “[Y]es, just Wentworth.” Ac-
cording to Pica, Griffin then asked if he had any schooling at
the IBEW and Pica said, “[N]o.” Griffin then asked where Pica
got his 15-hour code update and Pica gave the name of a school
that had sent him information in the mail in order not to dis-
close his training at the JATC. Pica admitted on cross-
examination that he received COMET training before applying
at the Respondent and that he was not truthful on his applica-
tion. He denied that he was told to falsify his application by the
Union. Pica also acknowledged reporting what happened at his
interview to the Union the same day he was interviewed.
Griffin recalled that Pica’s interview was so unusual that he
asked Emmie to write a summary of what happened in case he
might be questioned about it later. Griffin recalled that Pica
appeared to be very nervous and asked a lot of questions, more
than Griffin asked. Griffin admitted asking Pica about his train-
ing at Wentworth because he went to the same school. He ada-
mantly denied asking Pica whether he had attended the JATC
or any schooling by the IBEW, but he admitted asking him
where he took his code update course. Griffin explained that he
asks applicants this to make sure their licenses are current. On
cross-examination, Griffin conceded that he could have deter-
mined whether Pica’s license was current by asking to see it.
Crowe testified that the Respondent followed the same for-
mat for all interviews in the first half of 1996, asking the same
15 Pica’s application listed his training as having been received at
Wentworth Institute, a technical college in the Boston area.
WAYNE J. GRIFFIN ELECTRIC 1371
questions. According to Crowe, late in 1996, after the above-
four interviews, she created a form questionnaire to follow in
interviews. Crowe testified that, with minor exceptions, all the
questions on the form were the same questions that the Re-
spondent asked applicants before the form was created. How-
ever, on cross-examination, Crowe conceded that there might
be questions other than those appearing on the form that were
asked in interviews in 1996. Crowe was forced to admit that the
form is nothing more than a guideline, contradicting her earlier
testimony. Crowe further testified that she interviews more than
100 people in a year’s time and that she generally does not take
notes of the interviews, that only Griffin does. Griffin testified
that he sometimes interviews 40 people in a month and gener-
ally cannot remember what happened in a particular interview
without looking at his notes on the application and the photo-
graph of each applicant taken after the interview.
The General Counsel alleges that, during the above-four in-
terviews, the Respondent unlawfully interrogated applicants by
asking them questions designed to reveal their union affiliation.
Specifically, the General Counsel relies on Griffin’s asking
Murrin whether he was a “signatory member,” or member of
the Union; asking Arey about his health insurance coverage
during the 28 months he was on layoff; asking Arey, Baker, and
Pica about JATC training; and asking Baker whether the job he
worked on at the Boston Globe was a rate job and whether he
was on the Union’s out-of-work list. Although paragraph 7(b)
alleges that Crowe unlawfully interrogated applicants on or
about March 16, none of the General Counsel’s witnesses at-
tributed any of the allegedly unlawful questions to her. Accord-
ingly, I shall recommend dismissal of paragraph 7(b) for failure
of proof.
The Respondent’s witnesses did not contradict the testimony
of Arey and Baker regarding the questions they were asked in
their respective interviews. Instead, the Respondent argues that
these questions served a legitimate business need and were not
coercive. The Respondent’s witnesses did contradict the testi-
mony of Murrin and Pica regarding what they were asked in
their interviews, requiring a credibility resolution before reach-
ing the merits of these allegations. As noted above, Murrin
admitted that he was not truthful on his application and during
his interview. While the General Counsel makes light of this in
her brief, the fact that this witness was willing to lie to advance
the Union’s cause in its salting campaign against the Respon-
dent raises the question how far he would go to support the
Union’s program. Moreover, I find it hard to believe that Grif-
fin, a sophisticated nonunion contractor who had been dealing
with the Union for some time and was aware of its efforts to
have him become a union contractor, including its salting pro-
grams, would have asked an applicant directly whether he was
a member of the union. I note that the complaint does not even
allege such a direct interrogation. Accordingly, based on the
above considerations and the demeanor of the witnesses, I find
that Griffin did not ask Murrin during his interview on March
16, whether he was a signatory or any other kind of member of
the Union. On the other hand, because Griffin admitted asking
other applicants about their training, and in particular JATC
training, and admitted asking Pica where he got his code up-
date, I credit Pica and find that Griffin in fact asked him if he
had ever gone to the JATC and if he had any schooling at the
IBEW.
The Board has long held that “questions concerning union
preference, in the context of job application interviews, are
inherently coercive and unlawful, even when the applicant is
hired.” Gilbertson Coal Co., 291 NLRB 344 (1988), and cases
cited therein. See also Active Transportation, 296 NLRB 431
fn. 3 (1989). The questions here, however, did not directly seek
disclosure of union membership or sentiments. Rather, it is
claimed that the Respondent sought to gauge the membership
status of these applicants in a roundabout way, on the theory
that JATC training, working on rate jobs, being on the Union’s
referral list or having health insurance while unemployed with-
out making COBRA payments are indicia of union member-
ship. Unfortunately for the General Counsel and the Charging
Party, it is undisputed that nonmembers receive training at the
JATC, work on rate jobs, register at the Union’s hiring hall, and
may have insurance without making COBRA payments.16
Moreover, the Respondent has proffered legitimate reasons for
asking such questions of these applicants. In the case of Arey,
he revealed on his application that he had some training at the
JATC and Griffin inquired about the extent of his training
there. Similarly, Baker volunteered that he had worked for a
union contractor. By asking whether he was on the Union’s
referral list, Griffin sought to determine whether Baker was
likely to stay with the Respondent if offered a job. His interest
in whether an applicant did rate work would indicate whether
he would be content making considerably less than the prevail-
ing wage on a regular basis. To hold that a prospective em-
ployer cannot ask an applicant such questions without commit-
ting an unfair labor practice would essentially put the Union in
charge of the hiring process. Under the General Counsel’s the-
ory, a prospective employer would have to accept whatever an
applicant revealed on the application and could not probe into
such important areas as the nature of his training, the type of
prior work experience, or the anticipated duration of employ-
ment of an applicant. With respect to Griffin’s questioning of
Arey regarding health insurance and COBRA payments, this is
so innocuous and so far removed from union membership and
sentiments that it cannot be found unlawful. An applicant could
not reasonably believe that an employer was seeking to learn
his union sentiments by asking him whether he had health in-
surance and made COBRA payments.
Accordingly, I shall recommend dismissal of paragraphs
7(a), (c), and (d) of the complaint because, as a matter of law,
the credited testimony does not establish any unlawful interro-
gation regarding the union membership or sentiments of appli-
cants.

16 As the Respondent points out in its brief, an unemployed individ-
ual may be covered under a spouse’s insurance and be able to maintain
insurance that way without making COBRA payments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1372
F. The Respondent’s Response to the Union’s Organizational
Campaign
1. Griffin’s meetings with employees at the Mashpee High
School site
(Pars. 7(z) and (aa) of the consolidated complaint)
There is no dispute that Griffin visited the Mashpee High
School jobsite on or about May 31, the first day of the Union’s
strike and picketing, and spoke to employees individually. Mi-
chael Miscia, the project foreman at Mashpee, was present for
these conversations. One of the employees Griffin spoke to that
day was Stephen Foley, a member of the Union since 1984.
When he first arrived on the job in late March, Foley told Mis-
cia that he was a member of the Union and that he was there to
help organize the Respondent’s employees. Foley wore union
insignia on the job throughout his employment. When Griffin
and Miscia approached Foley during his visit to the job, Foley
volunteered that he was going to be passing out union authori-
zation cards. According to Foley, Griffin asked him to do so in
front of Miscia. Foley recalled that there followed a discussion
of the courthouse job in Boston and Foley asked Griffin why he
didn’t just sign an agreement with his local. As best as Foley
could recall at the hearing, Griffin responded that he would
never become a union shop. On cross-examination, Foley re-
called that Griffin also said that he had tried to work with
Foley’s union by offering the Union a project agreement for the
courthouse and that the Union had refused his offer. He further
recalled Griffin telling him that he had worked with other local
unions in other parts of the country. When shown his affidavit,
Foley also recalled that, when he asked Griffin why he did not
sign an agreement with the Union, Griffin responded,
“[B]ecause I don’t need Paul Ward’s permission to wipe my
ass.”17 Although Foley indicated in that portion of the affidavit
that he could not recall anything else being said about the Un-
ion, he had stated earlier in the affidavit that, although he could
not recall exactly how this conversation went, he did recall
Griffin saying that he would never become a union shop.
During his visit to the Mashpee job, Griffin also spoke to
Richard O’Connell, a longtime member of a different local of
the IBEW who had been employed by the Respondent since
August 1995. Miscia was also present. O’Connell believed that
he was the last person Griffin spoke to that day. O’Connell
testified that, after some small talk, Griffin told him that Foley
was a union member and would be passing out union authoriza-
tion cards. Griffin said he would appreciate it if O’Connell did
not sign one. O’Connell informed Griffin that he, too, was a
union member. Griffin replied, “I know that, but you’re not a
troublemaker.” O’Connell told Griffin that he did not believe
that Foley was there to cause trouble either and Griffin re-
sponded, “[Y]ou’re probably right.” According to O’Connell,
Griffin then changed the subject and started talking about work
he had coming up in O’Connell’s hometown and told O’Con-
nell that he had room to grow with the Company. According to
O’Connell, he had not made his union membership known to
any representatives of the Respondent before this conversation.
On cross-examination, O’Connell acknowledged that, in his

17 Paul Ward is the Union’s business manager.
pretrial affidavit, Griffin did not refer to Foley by name when
he told him that Local 103 would be handing out authorization
cards. O’Connell explained that, because Foley was the only
Local 103 member on the job and the only employee handing
out cards, he understood that Griffin was referring to Foley
when he used the term “troublemaker.”
Griffin testified that he spoke to O’Connell before he spoke
to Foley. According to Griffin, he told O’Connell that the Un-
ion was trying to organize and that they may ask him to sign a
union authorization card. He admits telling O’Connell to “re-
consider signing an authorization card . . . we’ve had a good
working relationship and the job’s gone well and Mike [Mis-
cia]’s treating you well.” Griffin recalled that O’Connell agreed
that the job was fine and that Miscia was a good foreman but he
told Griffin that he was a member of Local 223. Griffin testi-
fied that he told O’Connell that was fine, “[J]ust keep doing a
good job, like you’re doing for me . . . and everything will be
fine. I’m not looking to have any problems with anybody. I just
want to let you know that Local 103 will be asking you to sign
one of their authorization cards.” Griffin denied telling O’Con-
nell that he would never be a union shop.
Griffin testified that he already knew that Foley was in the
Union when he approached him on the job. According to Grif-
fin, he told Foley that he knew the Union had a campaign to
organize his employees and that Foley was involved. Griffin
testified that he told Foley, “[W]hen you do your soliciting and
you do your handbilling, please do it within the constraints of
the law and everything will be fine . . . I’m not looking to have
any trouble.” Foley responded that the Union was not trying to
cause him any trouble. According to Griffin, he then told Foley
about his efforts to negotiate a project agreement with the Un-
ion for the courthouse or other work in Boston and that Foley
told him he could be a rich man and have a more successful
shop with the Union. Griffin told Foley he was happy the way
things were and reminded him again to limit his solicitation to
nonworktime and nonwork areas. Griffin specifically denied
telling Foley that he could only pass out union cards and litera-
ture in front of Miscia and denied telling Foley that he would
never be a union shop.
Miscia testified that Griffin spoke to O’Connell first and re-
called that Griffin told O’Connell that there were union cards
being passed around and, “I’d like you not to sign them.” At
that point, according to Miscia, O’Connell revealed his mem-
bership in a different local of the Union. Miscia corroborated
Griffin regarding the rest of the conversation and specifically
denied that Griffin referred to Foley by name, or called him a
troublemaker, in this conversation. Miscia also corroborated
Griffin’s version of his conversation with Foley, although in
less detail. Miscia denied that Griffin told Foley that he could
pass out cards only if he did it in front of Miscia and further
denied that Griffin told Foley that he would never be a union
shop.
The complaint alleges that, during his conversations with
Foley and O’Connell, Griffin threatened employees with un-
specified reprisals if they engaged in union activities and told
employees that it was futile to select the Union as their bargain-
ing representative. The General Counsel relies on Griffin’s
references to “troublemakers” when talking to O’Connell about
WAYNE J. GRIFFIN ELECTRIC 1373
Foley’s organizing activities to prove the first allegation and
Griffin’s statement to Foley that he would never be a union
shop to prove the alleged statement of futility. Because Griffin
and Miscia deny that these statements were made, I must re-
solve this credibility conflict before reaching the merits of the
allegation.
Although the Respondent valiantly attempted to show that
the testimony of O’Connell and Foley was contradicted by their
affidavits, I see no significant disparity. Each witness testified
consistently as to their respective conversations with Griffin.
Moreover, as the General Counsel points out in her brief, both
Griffin and Miscia used the word “trouble” in their versions of
the conversations, lending credibility to O’Connell’s testimony.
While it is true that Miscia corroborated Griffin’s denials, I do
not attach much weight to this testimony in light of the written
opinions Miscia expressed in his November 1996 evaluation
form regarding the “extra challenge” created by the Union’s
organizing effort and the employees who supported it. Because
of his strong sense of loyalty to Griffin and the Respondent,
Miscia could be expected to corroborate whatever Griffin said.
Finally, I note that, as with much of Griffin’s testimony, his
version of these conversations was glib. Accordingly, I credit
the testimony of Foley and O’Connell and find that Griffin
made the statements attributed to him by those witnesses.
The Board has historically held that statements to employees
indicating that an employer will never recognize a union or sign
a collective-bargaining agreement with a union have the ten-
dency to interfere with, restrain, and coerce employees in the
exercise of Section 7 rights. Such statements convey the im-
pression that employee support for a union will be futile be-
cause the employer will never acquiesce to their choice of a
union to represent them. Wellstream Corp., 313 NLRB 698,
706 (1994); Soltech, Inc., 306 NLRB 269, 271 (1992). The
Respondent argues here that Griffin’s statement could not be
unlawful because the Respondent already had entered into pro-
ject agreements with other locals of the IBEW at other projects,
citing Chambers Development Co., 267 NLRB 611 fn. 2
(1983). The Respondent also argues that it is “incredible and
nonsensical” that Griffin would say he would never be union
when he had signed agreements with unions.
While it may be true that the Respondent has, on its own
terms, signed project labor agreements with Unions, there is no
dispute that the Respondent has never recognized any union as
exclusive bargaining representative of its employees under
Section 9(a) of the Act. To do so would mean that the Respon-
dent would be a “union contractor” with a continuing obligation
to deal with the Union, not limited to any one job. It is clear
from the evidence in the record that this is something that Grif-
fin was not willing to do. In this context, Griffin’s statement
that he would never become a “union shop” is neither incredi-
ble nor nonsensical. In essence, Griffin was telling Foley that,
while he might be willing to sign a project agreement with
Foley’s Union for a specific job if the terms were to Griffin’s
advantage, he would never recognize the Union generally as the
representative of his employees.18 This is a statement of futility

18 This is consistent with the statement that Griffin made to Dan Fer-
rick during his job interview in November 1994. Ferrick testified credi-
which is unlawful under Section 8(a)(1) of the Act, as alleged
in paragraph 7(aa) of the complaint. The statement found law-
ful by the Board in Chambers Development is distinguishable.
In that case, the employer told an employee that “66 will never
be here,” referring to Local 66 of the Operating Engineers. The
administrative law judge and the Board found that this was not
an antiunion statement under the unique circumstances of that
case because Local 66 in fact was “here” because a company
commonly owned and controlled by the Respondent already
had an agreement with that local covering the same jobsite. It is
undisputed that the Respondent did not have any agreements
with Foley’s local, at Mashpee or any other jobsite.
The Board has also held that calling employees “trouble-
makers,” in express or implicit reference to their protected ac-
tivities, may constitute a threat in violation of Section 8(a)(1) of
the Act. However, this is not a per se violation. Rather, it is the
context in which the word is used and not the use of the word
alone that imparts an unlawful connotation. Monfort of Colo-
rado, 298 NLRB 73, 84 (1990), enfd. in relevant part 965 F.2d
1538 (10th Cir. 1992); Perth Amboy Hospital, 279 NLRB 52
fn. 2 (1986); U.S. Steel Corp., 279 NLRB 16 fn. 1 (1986). In
the instant case, Griffin’s use of the word “troublemaker,” in an
apparent reference to Foley, cannot be found unlawful when
considered in context. When O’Connell told Griffin that he was
a union member, Griffin said, “I know, but you’re not a trou-
blemaker.” O’Connell understood this to be a reference to
Foley, the only member of the Union who was organizing for
the Union on site. When O’Connell told Griffin that Foley was
not there to cause trouble, Griffin agreed with him. This ex-
change is thus devoid of an threat of reprisal or force or prom-
ise of benefit. See Comcast Cablevision, 313 NLRB 220, 253
(1993). In contrast, those cases where the Board has found
references to union activists as troublemakers unlawful, there is
at least an implied threat of retaliation against such troublemak-
ers. Griffin’s innocuous comment here, quickly retracted, does
not rise to the level of an unfair labor practice. Accordingly, I
shall recommend dismissal of paragraph 7(z) of the complaint.
2. Griffin’s visit to the Bose site
(Par. 7(r) of the consolidated complaint)
There is no dispute that, while the union members were on
strike, Griffin visited the Bose site on June 5 and spoke to the
nonstriking employees at two meetings. It is also undisputed
that the purpose of these meetings was to inform the employees
regarding the disadvantages to joining the Union. Lexner, the
foreman on the job, attended both meetings and testified for the
General Counsel. According to Lexner, no other management
representatives were present for these meetings. Sean Schul-
theis, a team leader, and Steven Kinsella, an employee, also
testified for the General Counsel regarding the meeting they
attended.
Lexner testified that Griffin told the employees that the Un-
ion wanted to organize his shop and get him to be a union con-
tractor and that, if that happened, all the guys working for him

bly that Griffin told him that he liked to sign project agreements with
the Union when it was beneficial to the Respondent, but that he was not
going to become a union shop.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1374
would go to the bench and the Union would put its own people
on the job. According to Lexner, Griffin continued by telling
the employees that the Union wanted him and not his employ-
ees. Griffin also told the employees that if they signed union
authorization cards, they would be giving up their rights and
would have to abide by the union contract and that they could
no longer do side jobs. He recalled Griffin also telling the em-
ployees, “[I]f you had signed a card and you changed your
mind, you could get it back.” It is not clear from his testimony
whether these statements were made at both meetings. On
cross-examination, Lexner admitted that he could not recall
everything that was said during the two meetings he attended
and could not recall in what order Griffin made the statements
that he did recall. Through leading questions by Respondent’s
counsel, Lexner was able to recall that Griffin told employees
that, if he had to raise his labor rates, he would have to raise his
prices and would not be able to bid competitively for jobs.
Schultheis testified that he attended the second meeting. Ac-
cording to Schultheis, Griffin began the meeting by compli-
menting the employees for doing a great job at Bose and then
started talking about the Union and how it was trying to disrupt
things. Griffin was reading from notes as he talked. Schultheis
recalled that Griffin told the employees that signing a union
authorization card was “like sticking a knife in his chest, or his
heart, or something like that.” Griffin also told the employees
that, if they were to go to the Union, the Union would put them
on the bench, that Griffin would be able to keep a couple guys,
but the Union would replace the employees with people off
their own list. According to Schultheis, Griffin also said that,
with the Respondent, when they were done with a job, they are
sent to another job, but that in the Union, when the job’s done,
“[Y]ou go back to the bench.” Along this line, Griffin told the
employees that the Union would “treat you like a tool. Some-
times you’re put back in the toolbox, sometimes you’re thrown
back. You’re just a tool with the Union.” Schultheis also re-
called Griffin telling the employees that, if they signed cards, it
was not too late to get them back. He recalled that, after the
meeting, Griffin spoke to the apprentices about registering them
with the State for prevailing wage work. On cross-examination,
Schultheis admitted that he didn’t recall “verbatim” what was
said, but he distinctly remembered what the meeting was about.
He recalled further that Griffin told the employees that they
would not get as much work with the Union, but he could not
recall if Griffin explained the reason for this. Schultheis also
recalled that Griffin talked about signing agreements with local
unions in other parts of the country and that he offered the same
thing to Local 103, but Local 103 refused, saying, “[I]t’s either
the whole company or it’s nothing.”
Steven Kinsella attended the same meeting as Schultheis.
Kinsella testified that Griffin told the employees at this meeting
that he was working on a pool system to get all the employees
work on prevailing rate jobs for a couple months every year.
Kinsella recalled that Griffin also told the employees that the
Union did not want them as members, the Union already had
plenty of members laid off, that the Union wanted Griffin and
the work he is getting. According to Kinsella, Griffin said, be-
fore he left the meeting, “I don’t want anybody to sign union
authorization cards, it’s like sticking a knife in my back, or
chest, one or the other.” Griffin told the employees that signing
a card is like signing a binding legal contract, but he told the
employees not to worry if they already had signed a card be-
cause “it can be withdrawn.” Kinsella could not recall what
Griffin said regarding how the card could be withdrawn. On
cross-examination, Kinsella testified that Griffin did not tell
employees that the Respondent or Griffin personally, could get
their cards back.
Griffin admitted talking to the employees about the Union’s
hiring hall during his two meetings at Bose. According to Grif-
fin, he told the employees that, if the Respondent was a union
shop, it would have to hire from the union hiring hall. He told
the employees that the hiring hall had a list of approximately
1000 people out of work and that, if they were number 1000
and the Respondent was a union company, the Union would
direct employees in the hall to go to the Respondent’s jobs and
that the Respondent’s employees would have to wait for 999
people to get assigned jobs before getting work. He admitted
telling the employees that they might have a problem with con-
tinuity of employment in the Union and that could affect their
ability to get a loan. He reminded the employees that the Re-
spondent tries to provide continuity of employment when it
hires someone. Griffin testified further that he also talked about
the impact of the Union on the Respondent’s ability to bid
competitively on jobs, telling them that higher labor rates and
union jurisdictional rules would cause it to lose bids, resulting
in layoffs because the Respondent would not have as much
work. Griffin acknowledged telling the employees that, if they
had signed a union card and changed their mind because of
what he was telling them, “I can tell you, if you call me, whom
to send a letter to, requesting your card back.” Griffin ada-
mantly denied telling the employees that he could get their
cards back for them. Finally, Griffin told the employees about a
new system that he and Crowe had been working on to more
fairly distribute prevailing wage work among the employees.
According to Griffin, he got the information he used about the
Union’s hiring hall from a memo that Lexner gave him in
April, listing “some of the items your men should be informed
of about Local 103.” Griffin admitted using this memo as an
outline while speaking to the employees. One of the items on
Lexner’s list was a reference to the “1200 men on the bench at
this time.”
The complaint alleges that Griffin violated Section 8(a)(1) in
three respects during the course of these meetings, i.e., that he
threatened employees with job loss if they selected the Union
as their collective-bargaining representative; that he equated
union activities with disloyalty to the Respondent; and that he
told employees that Respondent could get their signed union
cards back. While there are some discrepancies in the versions
of the meeting recited by the four witnesses, there is not much
dispute about what was said. Although Griffin did not admit
telling employees that they would “go on the bench” if Re-
spondent recognized the Union, he did admit telling the em-
ployees that the Union would direct some of the 1000 people on
its out of work list to the Respondent’s jobs if the Respondent
became a “union shop,” that they would have to wait for 999
people ahead of them to be assigned work and that they would
no longer have the same continuity of employment that they
WAYNE J. GRIFFIN ELECTRIC 1375
enjoyed with the Respondent. He also admitted referring to
Lexner’s memo which referred to “men on the bench.” More-
over, Griffin admitted telling the employees that there might be
lay offs resulting from the impact of unionization on the Re-
spondent’s competitiveness in job bids. Griffin also did not
specifically deny the comment equating signing a union card
with sticking a knife in one of his vital organs. Although Grif-
fin denied telling the employees that he or the Respondent
would get the union cards back for the employees,19 he admit-
ted telling employees who changed their mind to call him and
he would tell them how to get the card back. To the extent there
are any conflicts in the testimony, I credit Schultheis and Kin-
sella who impressed me as truthful and who had nothing to gain
from the outcome of this proceeding. Both Griffin and Lexner
had much at stake in this proceeding which may color their
recollections. However, Lexner’s testimony on this aspect of
the case was corroborated by Schultheis and Kinsella, whom I
have credited, and did not differ significantly from Griffin’s
recollection.
Based on the credited testimony of Schultheis, as corrobo-
rated by Lexner and, to some extent, by Griffin himself, I find
that Griffin suggested to employees at the Bose meetings that,
if the Respondent were unionized, they would be replaced by
union members on the out of work list and would have to wait
“on the bench” until a job opening occurred. An employer has
the right under Section 8(c) of the Act to communicate to his
employees his general views about unionism or his specific
views about a particular union, as long as the communication is
unaccompanied by a “threat of reprisal or force or promise of
benefit.” The Supreme Court has interpreted Section 8(c) to
permit an employer to make predictions as to the precise effects
of unionization, provided that the prediction is “carefully
phrased on the basis of objective fact to convey an employer’s
belief as to the demonstrably probable consequences beyond
his control.” NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969). Such statements must be considered in the context in
which they are made and in view of the totality of the em-
ployer’s conduct. In addition, the economically dependent rela-
tionship of the employees to their employer must be considered
because, as the Court noted, employees may reasonably tend to
pick up intended implications which might be more readily
dismissed by a disinterested listener. Id. at 617; Hertz Corp.,
316 NLRB 672, 683 (1995). As the Respondent correctly points
out, expository statements about the realities of life in a union-
ized environment are permissible campaign propaganda. See
Michael’s Markets, 274 NLRB 826 (1985); Rexall Corp., 265
NLRB 121 (1982), modified at 272 NLRB 316 (1984), enfd. as
modified 725 F.2d 74 (8th Cir. 1984). However, in those cases,
the statements were based on actual experience and were not
predictions of what would occur in the event the targeted em-
ployees were unionized. In the instant case, Griffin’s statement
that employees would “go on the bench” and be replaced by the
1000 men on the Union’s out of work list was not based on any
actual experience, nor was it a prediction based on objective

19 I note that none of the General Counsel’s witnesses actually testi-
fied that Griffin said that he or the Respondent would get the cards
back for the employees.
fact. Rather, it was a threat of job loss as the direct result of
employees exercising their right to choose union representation
and violated Section 8(a)(1) of the Act. Feldkamp Enterprises,
323 NLRB 1193 fn. 4 (1997).20
The undenied testimony of Schultheis and Kinsella estab-
lishes that Griffin equated signing a union authorization card
with stabbing him in the back, or heart or words to that effect.
Although the witnesses may not have recalled the precise part
of the body attacked by the employees’ exercise of their right to
sign a card, the intent of the statement was clear, i.e., that any
employee who chose union representation would be disloyal to
the Respondent. Griffin’s comment at the Bose meeting is con-
sistent with other evidence in the record indicating the impor-
tance that Griffin attached to loyalty and his view that union
support was incongruent with loyalty to the Respondent. Re-
spondent is correct that no explicit threat or promise accompa-
nied this statement. However, the Board has held that such
statements are independently unlawful. Dauman Pallet, Inc.,
314 NLRB 185, 186 fn. 7 (1994). Under this precedent, I must
find that Griffin’s statement here violated Section 8(a)(1) of the
Act.
Griffin admitted telling the employees that, if they had
signed a union authorization card and changed their mind, they
could call him and he would tell them to whom to write to get
their card back. The Board has held that “an employer may
lawfully inform employees of their right to revoke their au-
thorization cards, even where employees have not solicited
such information, as long as the employer makes no attempt to
ascertain whether employees will avail themselves of this right
nor offers any assistance, or otherwise creates a situation where
employees would tend to feel peril in refraining from such
revocation.” R. L. White Co., 262 NLRB 575, 576 (1982). Here,
Griffin did not merely advise employees of their right, he solic-
ited them to call him to find out how to get their cards back.
Through this procedure, the Respondent could “ascertain
whether employees avail[ed] themselves of this right.” More-
over, because this information was provided to employees in
the same speech in which Griffin suggested they would be re-
placed by union members on the out of work list if the Respon-
dent were a union shop, and equated signing a card with a mor-
tal wound to the Respondent’s president, employees would
reasonably tend to feel peril if they did not exercise their right
to revoke their authorization card. Adair Standish Corp., 290
NLRB 317 (1988), enfd. 912 F.2d 854 (6th Cir. 1990). Accord-
ingly, I find that the Respondent violated Section 8(a)(1)
through this statement as well.
3. Griffin’s communications with Schultheis in June and July
(Pars. 7(o), (p), (t), (v), (w), (cc), (dd), and (kk) of the consoli-
dated complaint)
Schultheis was employed by the Respondent from July 1995
until February 1997. In November 1995, when Schultheis got
his journeyman’s license, he received a raise and was sent to
work on the Bose job under Lexner. According to Schultheis,
20 The General Counsel has not alleged that Griffin’s statements
about the impact of a union on his competitiveness and availability of
future work was unlawful. Thus I need not address the arguments raised
by the Respondent in its brief as to this part of Griffin’s speech.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1376
Griffin made him a team leader and suggested he try to learn
from Lexner.21 Schultheis admitted that he and Lexner drove to
work together and were friends. Although Schultheis is now a
member of the Union and obtains work through the Union, he
did not belong to the Union during the relevant time period. As
noted above, Schultheis attended Griffin’s meeting at Bose.
About 2 days later, on Friday June 7, he injured his hand and
was sent home. He tried to return to work the following Mon-
day, June 10, but Project Manager Burns sent him home to
recover further. According to Schultheis, he was out of work
for about 2 weeks and then worked in the office for about 1-1/2
months before returning to work as an electrician in the field.
The Respondent continued to pay him his regular wages during
the period he was out of work.
Schultheis testified that Griffin called him about 8–10 times
during the 2 weeks in June that he was home with his injury.
The first call was the Friday night after he was injured. In this
call, Griffin asked about his hand and Schultheis told Griffin
that he wanted to return to work. Griffin told him that was fine
as long as Schultheis did not work with any tools. According to
Schultheis, he had been laying out work for the crew and would
not need to work with the tools. There was no discussion of the
Union during this conversation. Griffin called again on Sunday
night. After asking how his hand was, Griffin started talking
about Boylan, one of the Union’s members on the Bose job
who had gone on strike and had been reinstated to a different
job on Friday. Griffin told Schultheis that he was sending Boy-
lan back out to the Bose job the next morning and he asked
Schultheis to put him to work with “someone you can trust to
keep an eye on him.” Boylan had been sent to a prevailing
wage job when he returned from the strike and Schultheis told
Griffin that some of the other employees at Bose were upset
that Boylan went from picketing to a rate job. According to
Schultheis, Griffin responded, “I just wanted to show that kid
that he couldn’t go wherever he wanted. I just wanted to teach
him a lesson.” On cross-examination, Schultheis acknowledged
that he did not mention the latter comment in his pretrial affi-
davit, given shortly after these conversations.
Schultheis testified further that Griffin called him practically
every night the following week. Although he could not differ-
entiate what was said in each conversation, he recalled that, in
one conversation, Griffin said, “[I]t’s not too late to get the
cards back.” When Schultheis told Griffin that he had not
signed a card, Griffin said that he was not talking about Schul-
theis. He told Schultheis that he was a leader on the job, that the
other employees respect him. He asked Schultheis to talk to the
others, “[M]aybe they’ll tell you if they had signed anything.”
Schultheis recalled Griffin saying something about a certified
letter and a lawyer in connection with getting the cards back.
He specifically denied that Griffin asked him who signed

21 According to Griffin, Lexner requested that Schultheis be assigned
to Bose. While not admitting that he designated Schultheis a team
leader at Bose, Griffin testified that he instructed Lexner to give Schul-
theis some leadership responsibilities. I find this is consistent with
Schultheis recollection of his conversation with Griffin and, because
Schultheis was a generally more credible witness than Griffin, discredit
Griffin’s attempt to contradict Schultheis on this point.
cards.22 Schultheis also recalled Griffin talking about the Re-
spondent being a “family” and needing to stick together to beat
the Union. During one of the conversations, again not recalling
which one, Griffin told Schultheis to “[L]et me know if any-
body out there is f—ing me.” Schultheis recalled that, during
the second week that he was out of work, during a telephone
call that Schultheis had initiated to tell Griffin that his doctor
released him for light duty, Griffin told Schultheis that he had
fired Lexner. According to Schultheis, Griffin said, “I had to let
Jim go. I couldn’t have those guys out there doing whatever
they want,” and said something like “running their mouths off.”
Schultheis admitted that he signed a union authorization card at
the end of his second week out of work.
Schultheis testified that, one day after he returned to work
and while he was working light duty in the office, he was
joined by Dan Ferrick while eating lunch at his truck parked
outside the office. Ferrick was a foreman on the Adessa job
who had been identified by the Union in a letter to the Respon-
dent as one of its organizers. Sometime after lunch, Gary Vest,
a foreman for whom Schultheis had been working in the office,
preparing the budget for an upcoming job, asked Schultheis to
go outside with him for a smoke. According to Schultheis, Vest
said, “[Y]ou know, Griff called me on the interoffice phone. He
said there was a tailgate party out front; that my boy Sean’s
outside with Ferrick.” Vest then told Schultheis that he could
not do that, have lunch with Ferrick in front of the office. After
having his recollection refreshed with his pre-trial affidavit,
Schultheis recalled that Vest also said that Griffin told Vest to
tell Schultheis to watch who he hangs around with. On cross-
examination, Schultheis conceded that he had conversations
with Vest in which Schultheis expressed to Vest his concern
that rumors were going around that he had signed a card. It is
unclear whether this occurred before or after the above inci-
dent.
Schultheis testified further that Griffin called him at home
the night after this conversation with Vest and asked about his
plans with the Company, whether Schultheis wanted to be “just
a worker,” or a leadman, or a foreman. In this conversation,
Griffin said, “[Y]ou know, you get judged by the people you
hang around with.” Schultheis replied, “[Y]es, I know. Gary
told me about having lunch with Danny.” Griffin told Schul-
theis that he also knew and was disappointed, that he always
thought Ferrick was a smart man.
Griffin admitted making several telephone calls to Schultheis
while Schultheis was home due to his injury. According to
Griffin, it was his practice at that time to maintain such contact
with injured employees as a way of “managing their [worker’s
compensation] claim. Griffin denied discussing Boylan’s as-
signment with Schultheis.” According to Griffin, he discussed
this with Lexner. Griffin did recall the subject of union authori-
zation cards coming up in one of his telephone conversations
with Schultheis. According to Griffin, Schultheis raised the
issue by telling Griffin that he had received some calls from a
few of the fellows at Bose wanting to know the process for
getting their cards back. Griffin told Schultheis that he should
22 Lexner testified that Schultheis told him, before he was fired, that
Griffin asked him to find out if anybody had signed cards.
WAYNE J. GRIFFIN ELECTRIC 1377
not be dealing with that while he was on the road to recovery.
He instructed Schultheis to tell any employees who called in-
quiring about this to call Griffin personally and Griffin would
explain to them the person and place they could send a letter to,
requesting their card back. Griffin conceded that this was the
same instruction he had given the employees during his meet-
ing at Bose. Griffin admitted telling Schultheis during a tele-
phone conversation that he had fired Lexner, but contradicted
Schultheis as to the reason he gave for this action. According to
Griffin, he told Schultheis that he let Lexner go because Lexner
was not directing and coordinating the men and wasn’t staying
focused to obtain the Company’s goals and directives.
Griffin acknowledged having a conversation with Schultheis
in mid-June, while Schultheis was out of work, about the Union
and the unfair labor practice charges it had filed.23 According to
Griffin, Schultheis told him that some of the men were con-
cerned about the disruptions and disturbances that the Union
would have on the Company. Griffin testified that he told
Schultheis not to worry about it and to tell the others the same.
Griffin testified further that he told Schultheis in this conversa-
tion that, “disappointingly, the unions had taken a position that
they’re just f—ing with me, and they’re trying to hurt me per-
sonally. And they’re trying to take the steps to have us spend a
lot of money on frivolous charges, taking action to redebar us.
But, you know, we’re going to work through these things; and
if we stay focused and work hard, we’re all family at Griffin.
And I try to take care of the employees like they are part of my
family, just like you take care of your family. Now you need
not to worry about those things, let’s just do what we do best,
which is work hard, stay focused on our work, and we’re going
to overcome any of these problems.” On cross-examination by
the Charging Party’s counsel, Griffin admitted telling Schul-
theis that the money being spent on legal fees to defend “frivo-
lous charges” could have been put into the Respondent’s profit-
sharing and 401(k) plans for the benefit of the employees.
Griffin denied having a conversation with Vest about Schul-
theis having lunch with Ferrick and denied telling Vest to talk
to Schultheis about it. Griffin did recall a conversation, in late
June or early July, that was initiated by Schultheis, in which
Schultheis expressed concern about working in the office and
people thinking he was a union person because of his friendship
with Lexner. Griffin testified that he told Schultheis not to
worry about it, that it was not a concern of his or the Company.
According to Griffin, he said, “[D]isappointingly, the men are
going to judge you by who you hang around with. That’s a
statement my mom kinda told me when I was growing up. I’m
going to judge you by what you do for the company and how
hard you work for me.” Griffin also acknowledged having a
conversation with Schultheis, shortly before he returned to full
duty, about his future with the Company. According to Griffin,
Schultheis indicated that he did not want to go back to the Bose
job and he and Griffin discussed what he wanted to do instead.

23 Schultheis recalled such a conversation taking place in December,
as will be discussed, infra. Griffin’s testimony will be discussed here,
however, because parts of it corroborate Schultheis recollection as to
the telephone conversations he had with Griffin in June and because
Griffin testified that this conversation occurred in June.
In the course of this conversation, Griffin did ask Schultheis
what were his goals with the Company, whether he wanted to
take courses to advance his skills, or work on any special pro-
jects, and if there was any particular foreman he would like to
work with. Griffin recalled that Schultheis identified Vest as
someone with whom he wanted to work and that they discussed
Schultheis working with Vest at a public school in Haverhill.
Schultheis ultimately chose not to work on this job because of
the distance from his home.
Vest also testified for the Respondent regarding his conver-
sations with Schultheis while Schultheis was working in the
office. Although he denied that Schultheis was working for
him, Vest acknowledged that Schultheis had been assigned to
work at the Haverhill job and that Schultheis was assisting him
with the budget for that job. Vest recalled having a conversa-
tion with Schultheis on the loading dock in back of the Respon-
dent’s building, while on a cigarette break, during this period of
time. According to Vest, Schultheis initiated the conversation,
telling Vest that “it really sucks what’s going on.” When Vest
asked what the problem was, Schultheis responded that every-
body thinks he’s dirty because he joined the Union. When Vest
told Schultheis not to worry about it, Schultheis repeated his
concern about the rumors and told Vest that he had not even
signed a union card. At that point, Vest told Schultheis, “[I]f it
bothers you so much, don’t sit there and have lunch with Fer-
rick in his truck every day. Hell, popular opinion, they’re look-
ing at you, hanging with the union guy.” Vest denied discussing
this conversation with Griffin and also denied that Griffin told
him to tell Schultheis that he saw him having lunch with Fer-
rick. Vest further denied that Griffin instructed him to tell
Schultheis to watch who he hangs around with. Finally, Vest
recalled that Schultheis “apologized” to him, while they were
both working on a job at AT&T, for the unfair labor practice
charge being filed over this conversation. Vest testified that
Schultheis said, “[I]t’s Wayne we’re after.”
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act, through Griffin’s telephone conversations
with Schultheis, by telling employees that, if they signed union
cards, the Respondent could get them back; by soliciting em-
ployees to report on the union activities of others; by telling an
employee that another employee had been reassigned because
the employee had gone on strike; by telling a crew leader to
keep another employee under surveillance; by interrogating
employees about their union activities and sympathies; and by
promising employees’ benefits if they refrained from union
activities.24 As noted above, I found Schultheis a generally
credible witness. In fact, my finding in this regard was echoed
by Griffin himself, who described Schultheis as a “forthright
individual.” I note that Schultheis did not attempt to embellish
his testimony, was willing to admit that Griffin did not directly
ask him who signed cards, and acknowledged difficulty recall-
24 Because the complaint alleges that these alleged unfair labor prac-
tices occurred at Bose at the Respondent’s Holliston office, or at a job
site in Framingham, it is unclear from the complaint itself that these are
the allegations which relate to Schultheis’ testimony. However, I have
relied on counsel for the General Counsel’s brief to match the allega-
tions to the evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1378
ing precisely what statements were made in each of the many
telephone conversations he had with Griffin. At the same time,
while I believe that Schultheis was testifying honestly, as best
he could recall, regarding his many conversations with Griffin,
I note that his recollection was limited and often needed to be
refreshed, either through a leading question or with his affida-
vit. On the other hand, Griffin was not a generally credible
witness, as previously noted. In particular, with regard to his
conversations with Schultheis, he professed many times diffi-
culty recalling dates and other details of conversations that
occurred almost 2 years before his testimony, yet he seemed
able to recall precisely what he did not say, conveniently dis-
avowing any unfair labor practices. In many respects, gaps in
Schultheis’ memory were illuminated by Griffin’s testimony,
with Griffin acknowledging at least the substance of these con-
versations, if not the precise wording attributed to him by
Schultheis.
Although Schultheis was only able to recall that Griffin told
him it’s not too late to get the cards back and that he said some-
thing about a certified letter, Griffin admitted telling Schultheis
the same thing he told the employees at the Bose meeting, i.e.,
that if any employees wanted to know how to get their cards
back, to call Griffin personally and he would explain it to them.
Based on this admission and for the reasons discussed above, I
find that this instruction violated Section 8(a)(1) as alleged in
paragraph 7(t)(i).25
Schultheis denied that Griffin asked him directly who had
signed cards, but he did recall Griffin asking him to talk to the
other employees, “maybe they’ll tell you if they had signed
anything,” expressing the view that Schultheis was a leader and
other employees respected him. This latter part of the conversa-
tion is consistent with the opinion expressed by Griffin at the
hearing regarding Schultheis. Griffin did not specifically deny
this portion of Schultheis’ testimony. Even if he had, I would
credit Schultheis for the reasons set forth above. Accordingly, I
find that Griffin did solicit Schultheis to report on other em-
ployees’ union activities, as alleged in paragraph 7(t)(ii).
Griffin expressly denied having any discussion with Schul-
theis regarding Boylan. The Respondent argues, in its brief, that
I should discredit Schultheis regarding this testimony because it
doesn’t make sense that Griffin would indicate that he was
punishing an employee by reassigning him to a higher-paid job.
Moreover, because Schultheis acknowledged that he did not
make crew assignments, why would Griffin instruct him to
“[P]ut Boylan to work with someone you can trust to keep an
eye on him?” Although I have found Schultheis more credible
than Griffin, Respondent is correct that much about this alleged
conversation does not make sense. It is undisputed that Boylan
was initially assigned to a higher-paid rate job on his return
from the strike and then reassigned to the Bose job on June 10,
but there would appear to be no reason for Griffin to discuss
Boylan’s assignment with Schultheis, who was not the foreman
at Bose. Nonetheless, I find that Griffin did discuss Boylan’s
return to the Bose job with Schultheis, a team leader whom

25 Although my finding differs to some extent from the precise alle-
gation, the violation found is reasonably encompassed by the complaint
allegation.
Griffn perceived to have influence with the other employees.
Griffin had already indicated concern about Boylan’s union
activities in discussions with Lexner. Thus, it would not be
implausible for him to also ask a crew leader like Schultheis to,
in essence, keep an eye on Boylan as well. Accordingly, con-
sidering the timing of this conversation and the demeanor of the
witnesses, I find that Griffin did ask Schultheis, in his role as a
team leader, to keep Boylan under surveillance by assigning
him to work with someone that Schultheis could trust “to keep
an eye on [Boylan].” Such a request violates Section 8(a)(1)
because it conveys to employees the impression that the Re-
spondent is keeping their protected activities under surveil-
lance. Accordingly, the Respondent violated Section 8(a)(1) as
alleged in paragraph 7(w) of the complaint.
As to the comment attributed to Griffin, that he assigned
Boylan to the rate job to teach him a lesson, I find that the Gen-
eral Counsel has not met her burden that such a statement was
made. Although I believe Schultheis that Griffin discussed
Boylan’s assignment to a rate job during their phone conversa-
tion and that he told Griffin that other employees at Bose were
upset about this, I find based on Schultheis failure to mention
this comment in his affidavit that Griffin did not equate the re-
assignment with punishment for engaging in a strike. Boylan
apparently was sent to another job because he had been re-
placed at Bose while out on strike. It clearly was not punitive
because Boylan received a higher rate of pay at his new as-
signment. I conclude that Schultheis either misunderstood what
Griffin told him, or did not accurately recall the explanation
given. Accordingly, I shall recommend dismissal of paragraph
7(v) of the complaint.
The General Counsel alleges at paragraphs 7(cc) and (dd)
that Griffin interrogated Schultheis regarding his union activi-
ties and sympathies and promised him benefits if he refrained
from union activities. Based on counsel for the General Coun-
sel’s brief, it appears that this allegation relates to the telephone
conversation in which Griffin asked Schultheis where he
wanted to go with the Company. There is no dispute that a con-
versation took place in which Griffin discussed Schultheis fu-
ture plans. Schultheis recalled such a conversation occurring
after his conversation with Vest about being seen with Ferrick,
while Griffin recalled that this conversation related to Schul-
theis next assignment after his light duty ended. Even under
Schultheis version of the conversation, Griffin did not ask him
any questions about his union sympathies and activities. The
General Counsel concedes this but argues that Griffin was
nonetheless “[T]rying to get this information from him while, at
the same time, warn him that becoming a foreman and hanging
out with union supporters were incompatible.” I am not pre-
pared to make such a leap. Nothing in the conversation as testi-
fied to by Schultheis could reasonably be viewed as an interro-
gation regarding union activities or sympathies. Accordingly, I
shall recommend dismissal of paragraph 7(cc) of the complaint.
Griffin admitted telling Schultheis that he would be judged by
the people he hung around with, but put this comment in a dif-
ferent conversation and claimed he was referring to how the
men would judge him, not how Griffin would judge him. I
credit Schultheis that the comment was made in connection
with the discussion of Schultheis’ goals with the Respondent
WAYNE J. GRIFFIN ELECTRIC 1379
and implied that Schultheis desire to be a foreman or leader
with the Respondent might be affected by his association with
known union supporters. Such an implication would reasonably
tend to restrain and coerce an employee in the exercise of his
Section 7 rights. Accordingly, I find that the Respondent vio-
lated Section 8(a)(1) as alleged in paragraph 7(dd) of the com-
plaint.
The complaint alleges at paragraphs 7(o) and (p) that the Re-
spondent violated the Act, through Vest’s and Griffin’s com-
ments to Schultheis regarding his being seen having lunch with
Ferrick, by creating the impression of surveillance and by tell-
ing employees not to associate with prounion employees. I
credit Schultheis regarding this incident. Griffin’s testimony,
while acknowledging bits and pieces of the conversation, de-
nied any unlawful conduct. Those portions of the conversation
which Griffin did acknowledge, such as his mother’s advice,
tend to reinforce Schultheis credibility. As to Vest, he acknowl-
edged commenting about Schultheis’ “hanging with the union
guy” and how that would negatively impact others’ opinion of
Schultheis. Accordingly, I find that Vest did tell Schultheis that
Griffin saw him with Ferrick and that Griffin instructed Vest to
advise Schultheis to “watch who he hangs around with.” Griffin
confirmed his awareness of Schultheis’ association with
Feerick and reinforced Vest’s advice in a telephone conversa-
tion that night. Although Vest was not a supervisor within the
meaning of the Act, he was a foreman at the time of this con-
versation and Schultheis was working under his direction in
connection with the budget for the school job that was coming
up. Vest’s comments were consistent with the views Griffin
himself expressed to Schultheis. Under the circumstances,
Schultheis would reasonably believe that Vest “was reflecting
company policy and speaking and acting for management”
during this conversation. Zimmerman Plumbing & Heating Co.,
325 NLRB 106 (1997). Accordingly, I find that Respondent is
liable for the statements Vest made to Schultheis and that the
Respondent violated the Act as alleged in paragraph 7(p). I
further find that Griffin’s statements to Schultheis created the
impression that the Respondent was keeping his protected ac-
tivities under surveillance, as alleged in paragraph 7(o). Finally,
Griffin’s recounting of his momma’s advice impliedly threat-
ened that employees should not associate with prounion em-
ployees if they hoped to advance with the Respondent, in viola-
tion of Section 8(a)(1) as alleged in paragraph 7(kk) of the
complaint.
4. Additional conduct attributed to Griffin
a. Griffin’s meeting with Kinsella
(Par. 7(q) of the consolidated complaint)
Kinsella testified that, in late September, he called Griffin
and asked for a raise. Thereafter, Griffin met with Kinsella at
the Respondent’s Holliston office for a pay review. Sandy
Crowe was also present. During this meeting, Kinsella brought
up the Union. Kinsella testified that he raised this issue because
he believed that Griffin would not assign him to any prevailing
rate work if he thought Kinsella was prounion. According to
Kinsella, he told Griffin that he and two other employees were
getting a bum rap because they were looked at as if they had
signed cards in support of the Union.26 Griffin responded,
“[D]id your mother ever tell you that you were judged by who
you hang around with.” Kinsella didn’t say anything in re-
sponse. Kinsella acknowledged that, at the end of the meeting,
Griffin gave him a $.75/hour raise and made him a leadman.27
Griffin absolutely denied discussing Kinsella’s union affiliation
during this meeting. It is undisputed that Kinsella had signed a
union card before this meeting and wore a union button on the
Bose job on the day that union members picketed the site.
The complaint alleges that Griffin violated the Act during his
meeting with Kinsella by creating the impression that employ-
ees’ union activities were under surveillance. The General
Counsel relies on Griffin’s statement about “being judged by
who you hang around with.” Although Griffin denied making
such a statement to Kinsella, he admitted telling Schultheis,
during a meeting in June or July, that his mom told him when
he was growing up that people will judge you by who you hang
around with. This expression was one Griffin was accustomed
to using. Because I found Kinsella to be a generally more
credible witness than Griffin and because Griffin admittedly
made such a statement before, I credit Kinsella’s version of this
meeting.
In determining whether an employer has created the impres-
sion of surveillance, the Board applies the following test:
whether employees would reasonably assume from the state-
ment in question that their union activities have been placed
under surveillance. United Charter Service, 306 NLRB 150
(1992), and cases cited therein. Accord: Hertz Corp., supra, 316
NLRB at 685. Griffin’s statement here, that Kinsella would be
judged by who he hangs around with, would reasonably lead
Kinsella to believe that the Respondent was watching his activi-
ties to ascertain his support for the Union. Griffin’s remark was
made in response to the concern expressed by Kinsella about
the “bum rap” he was getting because of the perception he was
a union supporter. Griffin’s remark did nothing to allay those
concerns. Although there is no dispute that Kinsella signed a
union card, there is no evidence that Respondent became aware
of this other than through Leombruno’s July comments to Kin-
sella. Kinsella denied signing a card when confronted by
Leombruno with this “rumor,” suggesting that he wanted to
keep his union support hidden from the Respondent. The fact
that Kinsella wore a union button 1 day, along with other em-
ployees, does not mean he was an open active union supporter.
At no time did Kinsella volunteer to Respondent that he was a
union supporter. The fact that Griffin gave Kinsella the raise he
requested with additional responsibilities as a leadman does not
negate the chilling effect of Griffin’s warning that he would be
judged by his associates. This was no more than the carrot and
stick approach to discouraging employees’ support for the un-
ion which was characteristic of the Respondent’s campaign.

26 Kinsella testified that, in mid-July, Leombruno told him, in the
jobsite trailer at Bose, “[R]umor has it you signed a card.” Kinsella
testified that he was “shocked” and denied that he signed a card, asking
Leombruno who told him this. Leombruno attributed the rumor to one
of the “salts” on the job.
27 Kinsella’s personnel file shows that he received an additional
$1/hour raise in December.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1380
Accordingly, I find that the Respondent violated the Act as
alleged in paragraph 7(q) of the complaint.
b. Griffin’s December telephone conversation with Schultheis
(Pars. 7(xx) and (yy) of the consolidated complaint)
Schultheis testified that, in early December, he was trans-
ferred from a prevailing rate job. Later that month, shortly be-
fore Christmas, Schultheis telephoned Griffin to discuss the
transfer. According to Schultheis, he began the conversation by
saying, “You know, Wayne, I could really use the extra money.
You told me if I ever needed help to give you a call.” Griffin
responded by asking, “Where do you want to go? What do you
want to do with this company?” Griffin then said, “[M]aybe
you’re not happy here at Griffin Electric. Maybe there’s some-
place you’d rather be. What can we do to improve the com-
pany?” According to Schultheis, Griffin became more hostile as
the conversation continued. At one point, Griffin said, “You
know what we spent $250,000 on last year? NLRB charges.
Wouldn’t you rather have that money in your profit sharing?”
Schultheis said yes. Griffin then said, “[F]—king with my com-
pany is like f—king with my kids.” Because of the tone the
conversation was taking, Schultheis hurried to end the conver-
sation.
Schultheis’ wife was called as a rebuttal witness to corrobo-
rate his version of the conversation. Although she did not hear
Griffin’s side of the conversation, she was present in the room
when Schultheis spoke to Griffin on the phone and recalled that
her husband was pacing the floor while talking on the phone.
According to Mrs. Schultheis, her husband said, when he got
off the phone, that he never should have called Griffin. Mrs.
Schultheis testified further that her husband told her what Grif-
fin said during the conversation. Specifically, she testified that
her husband told her that Griffin said, “I’ve worked hard to get
my company where it is, and my company is like my children .
. . . when you f—k with my company, you’re f—king with my
kid.” She also recalled her husband telling her that Griffin said,
“Do you know how much money I spend a year on NLRB
charges?”28
Mrs. Schultheis testified that, a few nights later, Griffin
called and asked to speak to Schultheis. He was not there, but
Mrs. Schultheis took the opportunity to complain to Griffin
about the way he had spoken to her husband during the previ-
ous call. She told Griffin that he had been disrespectful to her
husband and that it was not right that Griffin was talking to her
husband about things that had nothing to do with him and that it
was wrong for Griffin to swear at her husband. Griffin apolo-
gized, telling Mrs. Schultheis that he had not meant to come
across that way. He asked Mrs. Schultheis to have her husband
call him. Mrs. Schultheis testified that her husband did call
Griffin later that night and reported to her that Griffin had also
apologized to him for swearing.
Griffin gave a different version of the December telephone
conversation. According to Griffin, when he returned a voice
mail message from Schultheis on December 20, Mrs. Schul-

28 Although Mrs. Schultheis’ testimony regarding what her husband
told her that Griffin said to him is hearsay, it is admissible to corrobo-
rate Schultheis own testimony regarding the conversation. Dauman
Pallet, Inc., supra at 186.
theis answered the phone. Mrs. Schultheis told Griffin that her
husband was not yet home and then proceeded to criticize Grif-
fin, accusing him of not caring about his employees. When
Griffin asked what she meant, Mrs. Schultheis complained
about her husband being taken off a rated job. According to
Griffin, he explained to Mrs. Schultheis how the work was
assigned and that he does his best to distribute rated work
among his employees. While Griffin was defending himself to
Mrs. Schultheis, Schultheis came home and got on the phone.
According to Griffin, Schultheis asked Griffin if he knew that
Schultheis had been moved off the rated job. Griffin professed
no knowledge of this and then told Schultheis that he was “a
little bit miffed” by his wife’s criticism. Griffin then reviewed
all the things that he had done for Schultheis, concluding by
telling Schultheis that he took the criticism personally. Accord-
ing to Griffin, he told Schultheis, “And by the way, if you’re
not happy any more, and we can’t work it out, you’ve got to do
what’s best for the Schultheis family. I can’t please everybody
in the company. I do the best I can do as the president.” Griffin
testified that he’d “taken it a little bit personal, because I’d just
about had my fill of it.” According to Griffin, this was the last
conversation that he had with Schultheis.
Although Griffin’s recollection of this conversation did not
include any reference to the NLRB charges, he did admit dis-
cussing unfair labor practice charges during a telephone con-
versation with Schultheis in June.29 As noted above, Griffin
testified that he told Schultheis in June, “Disappointingly, the
unions have taken a position that they’re just f—king with me,
and they’re trying to hurt me personally. And they’re trying to
take steps to have us spend a lot of money on frivolous charges,
taking action to re-debar us. But you know, we’re going to
work through these things, and if we stay focused and work
hard, we’re all family at Griffin. And I try to take care of my
employees like they are part of my family, just like you take
care of your family.” What is significant about Griffin’s testi-
mony is that many of the themes in this speech he allegedly
gave to Schultheis in June are consistent with statements attrib-
uted to him by Schultheis in the December conversation, i.e.,
his analogy of the Respondent to his family, references to the
Union f—king with him through the filing of charges and other
efforts to organize his company, and the way in which he per-
sonalized the Union’s organizational efforts. These themes are
also apparent in the other unlawful statements that I have found
that Griffin made during earlier meetings and conversations
with employees. Moreover, Griffin admitted discussing the
alternative use of the legal fees to benefit employees in at least
one conversation with Schultheis. Accordingly, I credit Mr. and
Mrs. Schultheis version of the December conversation to the
extent they differ with Griffin’s testimony.
The General Counsel amended the complaint at the hearing
to allege that the Respondent violated Section 8(a)(1) of the Act
29 From the formal papers, it appears that the bulk of the charges
were not filed until after Griffin’s June conversation with Schultheis.
Thus it is unlikely that Griffin would have referred to the cost of de-
fending numerous frivolous charges that early in the game. Such a
comment would more likely have been made in December, as Schul-
theis recalled.
WAYNE J. GRIFFIN ELECTRIC 1381
in two respects during the December telephone conversation
between Griffin and Schultheis. Specifically, the General
Counsel alleges that Griffin impliedly threatened employees
with unspecified reprisals in retaliation for their union activities
and promised employees monetary benefits in exchange for
their refraining from protected concerted activities. The Gen-
eral Counsel argues that Griffin’s reference to f—king with his
company, in the context of his other comments regarding the
cost of NLRB charges and his suggestion that Schultheis should
look for someplace else to work if he was no longer happy at
the Respondent, would reasonably be understood by Schultheis
as a threat of unspecified reprisals for supporting the Union.
The General Counsel further argues that Griffin’s asking Schul-
theis whether he wouldn’t rather have the $250,000 that the
Respondent spent on NLRB charges in his profit sharing would
reasonably be understood as a promise of increased benefits if
the employees refrained from their activities in support of the
Union. The Respondent argues that, even under Schultheis’
version of the conversation, Griffin made no threats or prom-
ises of benefit. The Respondent characterizes Griffin’s com-
ments as the expression of his frustration and anger over the
impact on his company of the cost of defending the numerous
charges that the Union had filed.
Considering Griffin’s statements in the context in which they
were made, I find that Griffin’s suggestion that Schultheis
might be happier someplace else was not unlawful. Griffin
made this comment early in the conversation while discussing
Schultheis’ complaint about being taken off a rated job. In the
course of that discussion Griffin asked Schultheis where he
wanted to go, i.e., what job did he want to work on with the
company. It is unclear whether Griffin’s reference to Schul-
theis’ perceived unhappiness was related to his union activities
or the removal from the rated job. Because the comment was
ambiguous, it cannot be said that the Respondent restrained,
coerced, or interfered with Schultheis protected activities by
this comment. Accordingly, I shall recommend dismissal of
paragraph 7(xx) of the complaint.
Later in the conversation, as Griffin became more hostile, he
did specifically refer to the Union and the NLRB charges it had
filed, equated f—king with his company with f—king with his
kids and asked Schultheis if he would rather have the money
spent on NLRB charges in his profit sharing. These comments
were not ambiguous. Such statements convey to employees that
their employer would reward them with increased benefits if
they and their Union refrained from filing charges under the
Act. Such statements would reasonably tend to restrain, coerce,
and interfere with employees’ exercise of their statutory rights.
Accordingly, I find that the Respondent violated Section 8(a)(1)
of the Act as alleged in paragraph 7(yy) of the complaint.
5. The conduct of Respondent’s project managers and foremen
a. Trzecieski’s alleged interrogation and threats at Adessa
(Pars. 7(i), (gg), and (hh) of the consolidated complaint)
Daniel Ferrick was employed by the Respondent from Janu-
ary 1995 to January 1997. In about the late summer of 1995, he
became the foreman on the Adessa job in Framingham after
Lexner was transferred to the Bose job. Ferrick was the fore-
man during the Union’s organizational campaign in 1996, re-
porting to Allen Trzecieski, the project manager and an admit-
ted supervisor. Ferrick was identified by the Union as one of its
employee organizers by letter dated June 24. Ferrick joined the
Union in September and has worked for union contractors since
leaving the Respondent’s employ.
Ferrick testified that he first became aware of the Union’s
organizing campaign in May when Trzecieski told him that he
was sending an employee, Lou Bonito, to the Adessa job be-
cause Bonito’s prior foreman did not think he was productive
enough. Trzecieski told Ferrick that Bonito was a member of
the Union and asked Ferrick to keep an eye on him to make
sure he was producing as much as the other employees.30 Fer-
rick testified that, after Bonito came to the job, he passed out
union cards and literature during break one day and that Ferrick
informed Trzecieski of this. According to Ferrick, Griffin vis-
ited the job the following week and met with the employees.
This meeting occurred shortly after the union members went on
strike and picketed the Respondent’s jobsites. It appears from
Ferrick’s testimony that Griffin made similar comments regard-
ing the impact of unionization on the Respondent’s competi-
tiveness that he made during his meetings with the Bose em-
ployees. Griffin admitted meeting with the employees at
Adessa and using Lexner’s April memo as “talking points” for
his speech. Griffin testified that he singled out Ferrick as an
employee who had recently taken out a loan to buy a truck.
Griffin told the employees that if they were union members,
they would have a harder time getting such a loan because they
would not have the same continuity of employment that they
had with the Respondent. According to Ferrick, Trzecieski also
spoke briefly about the effect of a union on the Respondent’s
ability to compete with other contractors. The General Counsel
has not alleged that anything that Griffin or Trzecieski said
during this meeting at Adessa was unlawful.
Ferrick recalled that, around the time of this meeting, while
Trzecieski was visiting the site, Ferrick asked him about rumors
going around that all the employees at Bose and Adessa had
signed union cards and that they were all going to be laid off.
Ferrick asked Trzecieski if he knew anything about it. Trzeci-
eski said, “No,” and then said, “I’m not supposed to ask you,
but has anybody signed cards?” Ferrick told him that he was
not aware of any. Trzecieski denied ever asking Ferrick if any-
one had signed cards. According to Trzecieski, it was Ferrick
who brought up the subject of union cards. Trzecieski did not
testify as to what Ferrick said on the subject. The General
Counsel alleges, at paragraph 7(gg) of the complaint, that
Trzecieski’s questioning violated Section 8(a)(1). I credit Fer-
rick’s testimony over Trzecieski’s general denial. Although
Ferrick’s memory required refreshing as to some matters, he
recalled this conversation without assistance. Moreover, his
demeanor impressed me as someone who truthfully endeavored
to recall the events of 2 years ago as best he could, without

30 Trzecieski denied telling Ferrick that Bonito was a member of the
Union although he admitted being aware that Bonito was a union sup-
porter at the time of this conversation. He corroborates Ferrick regard-
ing the reason for Bonito’s assignment, indicating that Bonito was on
probation as a problem employee at the time. Documentary evidence in
the record establishes that Bonito was transferred to Adessa on or about
May 10.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1382
embellishment or speculation. Trzecieski, on the other hand,
professed to have a precise recollection of 2 year old conversa-
tions even though he made no notes at that time and reviewed
nothing in preparation for his testimony. Finally, I note that
Trzecieski’s questioning of Ferrick was consistent with Grif-
fin’s efforts to determine who signed cards through the advice
he gave at the Bose meetings regarding how to get the cards
back, discussed above.
In deciding whether an employer’s questioning of its em-
ployees violates the Act, the Board examines all the circum-
stances involved in the interrogation to determine whether the
questioning would reasonably tend to restrain, coerce, or inter-
fere with employees’ exercise of their Section 7 rights. Ross-
more House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel &
Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). Among the factors considered are the background of
the interrogation, the nature of the information sought, the iden-
tity of the questioner, and the place and method of interroga-
tion. Hudson Neckwear, Inc., 302 NLRB 93, 95 (1991), citing
Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).
Trzecieski’s inquiry whether any one had signed cards occurred
against the backdrop of Griffin’s meetings with employees in
which he expressed his opposition to the Union and solicited
employees to retrieve their signed cards. Trzecieski was Fer-
rick’s immediate supervisor. The information sought was the
protected activity of other employees and Trzecieski did not
explain the purpose of the inquiry. Although Ferrick was a
foreman, he was not a statutory supervisor.31 Moreover, at the
time of this questioning, Ferrick had not revealed his own union
sympathies. Contrary to the Respondent’s assertion, Ferrick did
not volunteer that he and others had signed cards by asking
Trzecieski whether he had “[H]eard the rumors that we all had
signed cards.” This is not an admission that he and other em-
ployees at Adessa had in fact signed cards. Accordingly, under
all the circumstances, I find that the Respondent violated Sec-
tion 8(a)(1) of the Act through Trzecieski’s interrogation of
Ferrick. Cumberland Farms, 307 NLRB 1479 (1992), enfd. 984
F.2d 556 (1st Cir. 1993).
Ferrick further testified that, in late June, after attending a
monthly labor meeting at the Respondent’s Holliston office, he
was asked to view a video about unions called “Little Card, Big
Problem.” After viewing the video, Griffin and Trzecieski came
into the room and Griffin asked Ferrick if he had any problems
with the Company. Ferrick said he did not. Griffin then told
Ferrick about a restructuring of the pay rates. As Ferrick was
leaving, Griffin told him that he had let Lexner go, that “things
weren’t going too good at Bose.” Ferrick had known and
worked with Lexner for a number of years and they were
known to be friends. Trzecieski also testified to this conversa-
tion, corroborating Ferrick’s testimony that Griffin informed
him of Lexner’s termination. Trzecieski denied that Lexner
discussed changes in the pay scales and recalled that Ferrick

31 Although I found above that the Respondent’s foremen had appar-
ent authority and employees could reasonably believe they were agents
of the Respondent, this finding does not privilege the Respondent’s
questioning of a nonsupervisory foreman to determine the union activi-
ties or sympathies of its employees.
commented on the way out that “Jimmy must have got in hot
water up there” and “no guilt by association.”
According to Ferrick, the day after the Union’s letter identi-
fying him as an organizer was sent out, Trzecieski visited him
at the job and told Ferrick that Griffin asked him to speak to
Ferrick about his decision to join the Union. Trzecieski asked
Ferrick when he decided to sign a card, referring to comments
Ferrick had made during a pay review indicating that he wanted
to be a foreman for the Respondent. Ferrick told Trzecieski that
he signed the card the week that Lexner was terminated. Trzeci-
eski asked Ferrick why he wanted to become a union member
and whether he was afraid of being laid off if he was a union
member. Ferrick understood this to be a reference to union
members being laid off and having to wait on the out of work
list for jobs. Ferrick told Trzecieski that he did not think he
would have a problem being laid off, that he would be able to
keep working. Ferrick also told Trzecieski that he did not feel
good about the way Lexner was laid off, expressing his belief
that Lexner was let go because he would not give the union
guys a hard time, not because of problems at Bose. Trzecieski
told Ferrick that he did not know anything about the situation
and then changed the subject.32
Trzecieski acknowledged having a conversation with Ferrick
about Ferrick’s joining the Union, but his recollection is sub-
stantially different. According to Trzecieski, he asked Ferrick
what he meant by the “no guilt by association” comment re-
ferred to above. Trzecieski explained that he was concerned
that Ferrick might have been referring to the work issues at
Bose and he did not want to be surprised with similar issues at
Adessa. On cross-examination, Trzecieski acknowledged that
he was also aware of union problems at the Bose site. Trzeci-
eski testified that Ferrick responded, “[W]ell, the cat’s out of
the bag now. Yeah, I’m union and have been for a long time.”
Ferrick then told Trzecieski that he got involved with the Union
when he had a dispute with a former employer over a COBRA
issue and that the Union had taken him out to dinner. Ferrick
also told Trzecieski that what made up his mind was Lexner’s
termination. Trzecieski recalled that Ferrick referred to joining
the Union as an opportunity and stated that if things did not
work out with the Union, he could always return to working for
a merit shop. Trzecieski testified that he told Ferrick that he had
a lot of opportunity with the Respondent and reviewed his em-
ployment history with the Respondent, his promotion to fore-
man, his pay raises and said, “You know, the company has
done a lot for you now.” He denied that Ferrick expressed any
belief that Lexner’s termination was because he would not give
the union guys a hard time.
The General Counsel alleges, at paragraph 7(hh) of the com-
plaint, that Trzecieski’s questioning of Ferrick regarding when
and why he signed a card was unlawful and, at paragraph 7(i),
that Trzecieski’s reference to previous pay review in the same
32 This is a compilation of Ferrick’s testimony and his affidavit
which was read into the record as past recollection recorded after Fer-
rick was unable to recall the exact sequence of the conversation. I note
that, even before refreshing his memory with the affidavit, Ferrick did
recall Trzecieski asking him when he decided to sign a card, referring
to Ferrick’s comments about being a foreman, and asked if he was
afraid of being laid off with the Union.
WAYNE J. GRIFFIN ELECTRIC 1383
conversation constituted an implied threat of no promotions
because he signed a union card. The Respondent argues that
Ferrick’s testimony should be discredited because he could not
recall being asked why he signed a union card despite several
attempts to refresh his recollection. The sole evidence of this
question is Ferrick’s past recollection recorded in the affidavit.
The Respondent also argues that, under Trzecieski’s version of
this conversation, it was not coercive as a matter of law. Under
the Board’s test set forth in Rossmore House, supra, I find that
Trzecieski’s questioning of Ferrick as to the timing and reasons
for signing a card was not coercive. I note that Ferrick had al-
ready been identified by the Union as an employee organizer.
Trzecieski’s questioning during this conversation did not seek
information regarding any other employees, but merely sought
to determine why one of its foreman would choose to join a
Union. Contrary to the General Counsel’s argument, I find
nothing coercive in Trzecieski’s reference to Ferrick’s com-
ments in an earlier pay review. Trzecieski was simply attempt-
ing to harmonize Ferrick’s stated desire to be a foreman for the
Respondent with his joining the Union. There was implicit in
this question no threat of lack of promotions. In fact, Ferrick
already was a foreman and Trzecieski’s statements did not sug-
gest he could not remain in his position. Accordingly, I shall
recommend dismissal of paragraphs 7 (i) and (hh) of the com-
plaint.
b. Mosca and Sullivan at Stoughton
(Pars. 7(k) and (l) of the consolidated complaint)
On a Saturday in mid-June, Ferrick worked overtime on a
job at a health care facility in Stoughton, Massachusetts, where
Mosca was the project manager and Steve Sullivan was the
foreman. Ferrick was working as a journeyman, pulling wire.
Ferrick testified that, during break, Mosca started talking about
the Union. Sullivan and two or three other electricians were
also present. According to Ferrick, Mosca said that the Union
had nothing to offer that the Respondent didn’t offer. Mosca
also said that if anybody signed cards, they would end up sit-
ting on the Union’s hiring hall list and would not be able to
work. During this conversation, Sullivan said that if any of the
union salts tried to hand him a union card, he would punch
them in the head. According to Ferrick, Mosca said nothing in
response to Sullivan’s comment.
Mosca testified that, although Sullivan is a foreman for the
Respondent, he was not a foreman on the Stoughton job. Ac-
cording to Mosca, Sullivan was working with his tools and was
assisting Mosca on this job as Mosca’s “point-man,” coordinat-
ing the work. Mosca admitted discussing the Union’s organiz-
ing campaign with the employees at the Stoughton job during a
break. He did not specifically deny the comments about the
Union’s hiring list attributed to him by Ferrick. Mosca did ac-
knowledge telling the employees that it was the Respondent’s
position, and in the best interests of the company, that they not
sign the union cards. Mosca also corroborated Ferrick’s testi-
mony that Sullivan told the employees that, if anybody handed
him a card, he would punch them in the head, or face. Mosca
recalled that everybody chuckled when Sullivan said this. Ac-
cording to Mosca, he responded to the comment by saying,
“[T]hat’s not nice, we don’t want any violence.” Sullivan did
not testify.
The complaint alleges, at paragraph 7(k), that Mosca told
employees it would be futile to select the Union as their bar-
gaining representative and threatened employees with job loss
during this conversation at Stoughton. I find that Ferrick’s tes-
timony does not support this allegation. Mosca’s comment that
the Union had nothing to offer that the Respondent did not
already offer is nothing more than campaign propaganda, akin
to comparing the employees’ existing benefits with those of-
fered by a union. The statement contained no threat that the
Respondent would take benefits away, refuse to bargain with
the Union, or otherwise take action against the employees
solely because they choose union representation. Cf. Soltech,
Inc., supra. Similarly, Mosca’s reference to the Union’s out-of-
work list was not a threat of job loss. In contrast to Griffin’s
statements at Bose found unlawful above, Mosca did not
threaten that employees would lose their jobs to union members
on the out of work list. Instead, he merely described the experi-
ences of union members who depend on the hiring hall to find
work. Accordingly, I shall recommend dismissal of paragraph
7(k) of the complaint.
The complaint alleges, at paragraph 7(l), that Sullivan’s
statement that he would punch anybody who tried to hand him
a union card was an unlawful threat of physical assault for en-
gaging in union activities. There is no dispute that Sullivan
made this statement. However, because Sullivan was not a
statutory supervisor at the time, I must determine whether em-
ployees would reasonably believe that Sullivan was “reflecting
company policy and speaking and acting for management”
when he made this statement. Zimmerman Plumbing & Heating
Co., supra. Although Ferrick identified Sullivan as the foreman
for this one-day job, he did not describe any interaction he had
with Sullivan in that role. Thus the record is silent as to what
Sullivan’s duties and responsibilities were vis-a-vis the other
employees on the job. I note that Mosca himself was present on
the job and there is no dispute that he was a statutory supervi-
sor. Thus, there is no evidence that Sullivan had even apparent
authority on this job. Moreover, even assuming that Sullivan
had apparent authority similar to that possessed by foremen like
Ferrick who worked on bigger jobs, such authority would not
extend to physically assaulting employees. Under the circum-
stances, I find that the employees who heard this comment
would not reasonably believe that Sullivan’s threat reflected
company policy or that he was speaking and acting for man-
agement when he made this statement. Von’s Grocery Co., 320
NLRB 53, 56 (1995). Accordingly, I shall recommend dis-
missal of paragraph 7(l) of the complaint.
c. Leombruno’s conduct at Bose
(Pars. 7(n) and (qq) of the consolidated complaint)
Foley was transferred from the Mashpee School to the Bose
job sometime in July. By that time, John Leombruno had re-
placed Lexner as the foreman. Foley testified that most of the
crew, including Leombruno, Paul Eckhardt, and Paul Brown,
two of the Respondent’s foreman who were working as lead-
men at Bose, ate lunch together at the Respondent’s onsite
trailer. Foley recalled that Project Manager Bob Burns occa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1384
sionally was present as well. According to Foley, Leombruno,
Eckhardt, and other procompany employees would often give
the union supporters a hard time during these lunchbreaks.
Foley testified that they made “derogatory comments” to Todd
Boylan and Harry Walpole.33 When asked for specifics, Foley
testified that on one occasion Leombruno told Boylan to
“[T]ake the scum that he got and just get out of here.” When
pressed to recall any other specifics, Foley testified that, on
another occasion, employee Rob Ruggieri told Boylan, “[T]his
isn’t your world. Just get out of here.” According to Foley,
Leombruno, and Burns were present when this was said and
they both just laughed. On cross-examination, Foley admitted
that he could not recall the context in which these statements
were made, and he further acknowledged that, in a pretrial affi-
davit, he could not recall what antiunion comment provoked
Burns to laugh. Foley also conceded that, during these lunch-
time discussions, Boylan got loud and used profanity when
talking about the Union and that Boylan and Walpole probably
told the procompany employees that they did not know what
they were talking about, or were fools for working for peanuts,
or similar comments. Although Boylan testified as a witness for
the General Counsel, he was not asked about these statements.
Walpole did not appear as a witness.
The complaint alleges, at paragraph 7(n), that Leombruno
harassed employees because of their union activities on or
about July 12 and, at paragraph 7(qq), that Leombruno and
Eckhardt impliedly threatened employees with discharge if they
engaged in union activities or talked about the Union on vari-
ous dates in late June and July. It appears, from counsel for the
General Counsel’s brief, that these allegations are based on the
testimony of Foley described above.34 As the General Counsel
notes in her brief, the Board recognizes that, in the course of
organizational campaigns, “statements are sometimes made of a
kind that may or may not be coercive, depending on the context
in which they are uttered. In order to derive the true import of
these remarks, it is necessary to view the circumstances in
which they are made.” Hertz Corp., supra at 685–686, citing
Shaw’s Supermarkets, 289 NLRB 844 (1988). Assuming that
Foley’s testimony were credited, I would nevertheless find that
the General Counsel has not met her burden of establishing the
violations alleged in paragraphs 7(n) and (qq). Although Foley
testified generally that foremen and procompany employees
gave the union supporters a hard time, the only specifics he
recalled were taken out of context and contain no explicit threat
or promise of benefit. It appears these were no more than hy-
perbole in the course of a heated discussion on the pros and
cons of the Union, during which the union supporters became
equally exuberant. Accordingly, I shall recommend dismissal of
paragraphs 7(n) and (qq).

33 Walpole’s name appears incorrectly in the transcript as Wuerful.
The record is corrected to reflect the correct spelling of his name.
34 Respondent apparently believed that par. 7(n) was based on a dif-
ferent conversation between Leombruno and Kinsella, arguing in its
brief that nothing unlawful occurred in that conversation. I need not
address this issue inasmuch as the General Counsel does not claim that
anything Leombruno said to Kinsella during that conversation was
unlawful.
d. Lexner’s allegedly unlawful statements
(Pars. 7(s) and (u) of the consolidated complaint)
Lexner testified that, after Griffin met with the employees at
Bose, on or about June 5, he spoke to Lexner and asked Lexner
to go around to the men, one-on-one, and ask them how they
felt about the Union. Lexner did not comply with this instruc-
tion. Lexner did not testify that he told anyone else about this
conversation. However, Ferrick testified that, sometime in June,
before Lexner was terminated, he had a telephone conversation
with Lexner during which Lexner said that Griffin wanted Lex-
ner to let him know “what was happening, if the guys were
passing out cards, if the guys were pro-union, that type of
thing.” Ferrick did not testify that Lexner told him that Griffin
asked him to get this information by interrogating the employ-
ees. Griffin denied asking Lexner to interrogate employees
about their union activities. However, he admitted having a
conversation with Lexner, after his meetings at Bose, in which
he told Lexner that if anyone had any questions about what was
discussed at the meeting, “[P]lease call me at the office and
contact me personally.” This is consistent with the instructions
he gave to the employees during the meeting, i.e., to call him
personally to find out how to get their union authorization cards
back.
The complaint alleges, at paragraph 7(s), that the Respondent
violated the Act by Lexner telling employees that Griffin had
directed him to interrogate employees about their union activi-
ties and sentiments. This allegation is not supported by the
evidence in the record. Even assuming that Griffin asked Lex-
ner to interrogate employees, Lexner did not do so. Griffin’s
instruction to Lexner cannot violate the Act because Lexner
was a statutory supervisor, no employee was aware of this in-
struction and Lexner never carried it out. Resistance Technol-
ogy, 280 NLRB 1004, 1007 (1986). As noted above, Lexner did
not tell Ferrick that Griffin asked him to interrogate employees.
According to Ferrick, Lexner was asked by Griffin to keep him
informed, as any supervisor would be expected to, of what was
happening with the union organizing campaign. As the Board
stated, in Resistance Technology, supra, “[W]hen two members
of management converse and nothing further occurs, there is no
impact on employee rights and no violation of the Act.” Id. at
fn. 8. I also note that, at the time of this conversation, Ferrick
was a foreman, and potential agent of the Respondent in its
anti-union campaign, Lexner and Ferrick were friends and Lex-
ner had recommended that Griffin hire Ferrick, and Ferrick
acknowledged that Lexner had told him that he was sympa-
thetic to the Union. Under these circumstances, Lexner’s state-
ment to Ferrick would not reasonably tend to restrain, coerce or
interfere with Ferrick’s exercise of his rights under the Act.
Accordingly, I shall recommend dismissal of paragraph 7(s) of
the complaint.
Lexner testified that he told Ferrick and Schultheis about the
conference call with Griffin, Sandy Crowe, and a man identi-
fied as the Respondent’s attorney in which, according to Lex-
ner, Griffin asked him to give union supporters Boylan and
Harris a hard time and to either start a fight with one of them,
WAYNE J. GRIFFIN ELECTRIC 1385
or have some “big lurch type”35 start a fight with them. Schul-
theis testified that Lexner told him, in a telephone conversation
during his first week out of work, that Griffin said to Lexner,
“See if you can get the guys, you know, maybe you can get
some of the guys on the job that are anti-union to start fights
with the union guys. And then just like walk away. Write them
up for whatever you can, see if you can get them into trouble.”
According to Schultheis, Lexner told him that he had refused to
do these things. Ferrick recalled that Lexner told him, also dur-
ing a telephone conversation in early June, that Griffin had
asked Lexner to give the union guys a hard time, make them
feel unwanted. Ferrick testified that Lexner also said that Grif-
fin wanted Lexner to have a couple of his guys pick a fight with
the union salts and that Griffin did not want Lexner to break it
up too soon. Ferrick also recalled that Lexner told him that he
had refused to do as Griffin requested. As will be discussed in
more detail later, Griffin denies making such a request of Lex-
ner.36
Paragraph 7(u) of the complaint alleges that the Respondent
violated Section 8(a)(1) by Lexner’s telling Ferrick and Schul-
theis about Griffin’s alleged instruction to cause the physical
assault of prounion employees. Lexner was an admitted super-
visor of the Respondent at the time he spoke to Ferrick and
Schultheis. Although Ferrick was a foreman, he and Schultheis
were both statutory employees as well as Lexner’s friends.
Schultheis was under Lexner’s direct supervision at the time.
All three witnesses testified fairly consistently about what was
said in their respective conversations. The issue is whether
Lexner’s statements to Ferrick and Schultheis, that the owner
and president of the Respondent had instructed him to cause the
physical assault of prounion employees, would reasonably tend
to restrain, coerce, or interfere with their exercise of statutory
rights. In making my decision, I note that Lexner told both
employees, in the same conversation, that he had refused to do
as instructed.
I find that, under all the circumstances, Lexner’s statements
to Ferrick and Schultheis regarding Griffin’s instructions were
unlawful. Even though Lexner was friends with these two em-
ployees and told them that he would not carry out Griffin’s
instructions, the statement by itself conveyed to employees how
far the owner of the Company was willing to go to thwart his
employees organizing activities. Such a statement would have
the natural tendency to restrain and coerce an employee in his
decision whether to support a Union, because to do so might
lead to a company-orchestrated physical assault. Even though
Lexner told the employees that he was unwilling to comply
with Griffin’s instructions, the employees were aware that the
Respondent had many other foreman who were not so sympa-

35 The transcript incorrectly records this testimony as a “large” type
person. The record is hereby corrected to replace “large” with “Lurch”
wherever it appears in testimony regarding this conference call.
36 This conference call and the credibility issues surrounding it will
be discussed in connection with Lexner’s discharge. It is not material
whether the conference call occurred as Lexner recalled for purposes of
determining whether Lexner’s statements to employees about the call
were unlawful. It is the statements themselves, not whether they are
true, which determine whether employees would reasonably be re-
strained or coerced.
thetic to the union and could be expected to carry out such an
instruction. Accordingly, I find that the Respondent violated
Section 8(a)(1) by Lexner’s conduct in reporting his version of
the conference call to Ferrick and Schultheis, as alleged in
paragraph 7(u) of the complaint.
6. The loyalty ratings
(Pars. 7(bb) and 15(a) and (e) of the consolidated complaint)
It is undisputed that one of the foremen’s responsibilities is
to periodically evaluate the performance of the employees on
their crews. The Respondent’s foremen utilize two forms for
this purpose. The first is an individual appraisal entitled “Elec-
trical Journeyman Monthly Work Report” on which the project
foreman evaluates the employee on 10 items, using a 1–3 rating
system, with 3 the highest score. There is no evaluation of loy-
alty on this form. Although identified as a monthly report, the
record reveals that such evaluations are done every couple
months. It is these evaluations that the foremen routinely dis-
cuss with individual employees. The second form is entitled
“Crew Evaluation” and is utilized by the foreman to rate all the
employees on his crew, on a monthly basis, in six areas, includ-
ing “loyalty,” on a scale of 1–5, with 5 the highest score. A
company document entitled “Characteristics of a Good Em-
ployee,” defines loyalty for purposes of these evaluations as
“act[ing] professionally and show[ing] dedication to their job
and company.” In contrast to the individual employee evalua-
tion form, there is no space for an employee’s signature on the
crew evaluation form. From the testimony of the Respondent’s
witnesses, which was corroborated by several of the General
Counsel’s witnesses, the latter form is not routinely reviewed or
discussed with individual employees.
The parties dispute whether and to what extent these foremen
evaluations affect employees’ terms and conditions of employ-
ment. O’Connell testified that he was told by Dave Wall, one of
the foreman who evaluated him early in his employment, that
his evaluation would be used to determine the amount of any
wage increase he got. On cross-examination, O’Connell ac-
knowledged that he did not mention this in his pretrial affidavit.
The Respondent’s witnesses testified that the project manager’s
utilize the foreman’s crew evaluations to determine whether
there are problems with the crew that need to be addressed.
According to Richards, a project manager would independently
investigate if the foreman’s crew evaluation indicated that there
were significant performance problems with any employees on
the crew. The record establishes that Griffin, in determining
whether to give an employee a raise or a promotion, and the
amount of the raise, does consider the foreman’s evaluation of
individual employees in conjunction with other information,
including the employee’s conformance with the “Characteris-
tics of a Good Employee.” Griffin himself has commented on
the loyalty of individual foreman in their performance evalua-
tions.
As noted above, O’Connell was a member of a different lo-
cal of the IBEW when he started working for the Respondent.
There is no dispute that he revealed his union membership to
Griffin and Miscia when Griffin visited the Mashpee School
job in late May to talk to the employees about the Union’s or-
ganizing drive. As found above, in that conversation Griffin
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1386
implied that Foley, a member of the Union who was passing
out cards, was a troublemaker but that O’Connell was not. The
week after this conversation, O’Connell participated in the
Union’s first strike. O’Connell testified that he also began talk-
ing to other employees about the Union and answering any
questions they had. O’Connell received generally favorable
evaluations from his foreman Miscia in January and March,
before his union affiliation became known, including a rating of
3 under loyalty. At the time of the January evaluation, Miscia
told O’Connell that he could improve his score in that category
by taking the blueprints and specs for the job home to study
them on his own time. In August, upon returning from vacation,
O’Connell was reassigned to the Adessa job in Framingham
where he worked for about a month under Foreman Scott
Towne. Towne evaluated O’Connell on September 13 and gave
him lower ratings than Miscia had and commented negatively
about his attitude and his commitment to the job. Towne gave
O’Connell a “0” for loyalty on the crew evaluation form.
O’Connell testified that he was unaware of Towne’s evaluation
before the hearing. On cross-examination, O’Connell admitted
that he had disagreements with Towne regarding how best to do
the work and that he even showed the project manager, Trzeci-
eski, work that Towne had done which was not done properly.
O’Connell returned to the Mashpee job in September and re-
ceived another evaluation from Miscia on September 27.37
O’Connell testified that he met with Miscia in the office trailer
at the jobsite to discuss this evaluation. According to
O’Connell, Miscia brought up “loyalty” and said, “I think your
loyalty is more to the Union than it is to the company.”
O’Connell responded by telling Miscia that he shows up for
work every day, he does his job to the best of his ability, and
that his loyalty is with the company. Miscia smiled and said, “I
think you’re still more loyal to the Union than you are to the
company.” O’Connell testified that Miscia explained that is
why he gave him a lower rating. O’Connell recalled that Miscia
showed him a form like the “Electrical Journeyman Monthly
Report” during this meeting. He did not recall seeing a “Crew
Evaluation” form. The record does not contain a monthly report
for O’Connell completed by Miscia in September. However, a
crew evaluation dated September 27, with only O’Connell’s
name on it, shows that Miscia rated him a “2” under “loyalty.”
Miscia rated him a “4” on four categories and a “3” on one. The
“loyalty” rating was a decline from Miscia’s last evaluation of
O’Connell, but an improvement over Towne’s evaluation.
Miscia acknowledged meeting with O’Connell to discuss the
September 27 crew evaluation. According to Miscia, O’Connell
asked him why he was getting a “2” for loyalty. Miscia testified
that he told O’Connell that was his opinion. O’Connell then
asked if it was because he was in the union and Miscia told
O’Connell it was not. Miscia testified that he and O’Connell
did not have a detailed discussion regarding any of the other
items on the crew evaluation. When asked at the hearing why
he gave O’Connell a lower rating on loyalty than he had on his
previous evaluation, Miscia cited three factors: that O’Connell

37 O’Connell testified that he began wearing a union sticker on his
hardhat and a union belt buckle after he returned to Mashpee from
Adessa.
had refused to work overtime on a couple of occasions because
he had to go bowling; that O’Connell ordered too much speaker
wire while wiring the auditorium; and that O’Connell stranded
another employee who carpooled with him by leaving the job
without telling him. Miscia did not testify that he told
O’Connell that this was the reason for the decline in his loyalty
rating. Moreover, Miscia gave O’Connell a higher rating than
his previous evaluation in such areas as “work effort” and
“thoroughness in completing tasks” despite the three factors he
cited as a basis for downgrading him on loyalty.
On the September 13 crew evaluation done by Towne at the
Adessa job, Towne also gave Ferrick a “0” for loyalty. Ferrick
testified that he was unaware of this evaluation. As noted
above, Ferrick had previously been the foreman at Adessa and
had been identified by the Union as one of its employee organ-
izers in the letter dated June 24. Towne became Ferrick’s fore-
man when Ferrick’s work on the night shift ended. Two other
employees evaluated by Towne on September 13, Sean Walsh
and Kevin Boudreau, were given a “3” and a “4.5,” respec-
tively, under loyalty. There is no evidence in the record regard-
ing the union affiliation or sympathies of Walsh or Boudreau.
Towne testified that Ferrick was talking bad about the Com-
pany and Griffin and talking about labor issues, such as bene-
fits, that were not an issue for Towne and that he considered
this disloyal. Towne testified that he gave O’Connell a “0” for
loyalty for similar reasons, i.e., that he badmouthed the Com-
pany and Griffin, accusing Griffin of being greedy and not
putting money into the 401(k) plan and treating his workers like
“fleas in a jar.” Towne further testified that O’Connell and
Ferrick did not show respect for the tools and that was also
disloyal in his view. Towne had only worked with Ferrick and
O’Connell about a month when he completed this crew evalua-
tion. Towne did not show it to the employees, nor discuss it
with them. Towne turned the form into the office and did not
know what became of it after that.
The General Counsel alleges that Miscia’s statement to
O’Connell, on or about September 27, regarding the reason for
his lower rating under loyalty violated Section 8(a)(1) of the
Act. The General Counsel further alleges that the Respondent
discriminated against O’Connell and Ferrick in September
through the loyalty ratings they received from Miscia and
Towne on September 13 and 27. Although Miscia denied mak-
ing the statement attributed to him by O’Connell, I find him not
credible in this regard. As noted above, Miscia’s self-evaluation
completed in October for his own performance appraisal re-
vealed the importance he placed on loyalty to the Company and
to Griffin personally and his desire to assist the Respondent in
meeting the “challenge” of the Union’s organizing effort. Mis-
cia’s comments on this form lend credibility to O’Connell’s
testimony that Miscia linked O’Connell’s loyalty rating to his
support for the Union. The explanation Miscia provided at the
hearing for the lower rating he gave to O’Connell was nothing
more than a post hoc justification since Miscia admits he did
not give this explanation to O’Connell when O’Connell asked
him why his rating was lower. Moreover, the reasons cited at
the hearing, in particular the claim that O’Connell ordered too
much wire, would appear to be inconsistent with the higher
ratings he received in the other categories. Having credited
WAYNE J. GRIFFIN ELECTRIC 1387
O’Connell’s testimony, I further find that Miscia’s statement
violated Section 8(a)(1) of the Act. Comments equating support
for the Union with disloyalty to the employer have a reasonable
tendency to interfere with, restrain, and coerce employees in the
exercise of their Section 7 rights, particularly when uttered in
the context of an evaluation which becomes part of the em-
ployee’s personnel record with the Company.
With respect to the evaluations themselves, it is clear from
Miscia’s statement to O’Connell that the lower rating he re-
ceived under loyalty on September 27 was motivated by his
support for the Union. Thus, General Counsel has made out a
prima facie case of discrimination. Because I have discredited
Miscia’s testimony that the reduced rating was for other rea-
sons, the Respondent has not met its burden under Wright Line,
supra, of establishing that O’Connell’s would have received a
lower rating in the absence of protected activity. The Respon-
dent argues that there is no violation because there is no show-
ing that the Respondent utilized this evaluation to adversely
affect O’Connell’s employment. While it is true that O’Connell
suffered no immediate harm as a result of the lowered rating
under loyalty, it is clear from this record that Griffin attaches
much weight to “loyalty” when considering his employees for
raises, promotions and job assignments. It is also clear that the
crew evaluation was included in O’Connell’s personnel file
which Griffin admits he reviews when considering employees
for raises. Under these circumstances, I find that the Respon-
dent discriminated against O’Connell, in violation of Section
8(a)(1) and (3), when Miscia evaluated him negatively under
loyalty. Churchill’s Supermarkets, 285 NLRB 138 fn. 1 (1987).
Towne essentially admitted that he was motivated by
O’Connell’s and Ferrick’s support for the Union when he gave
them a “0” for loyalty on September 13 because they were
“badmouthing” the company and Griffin. The “badmouthing”
consisted of their discussion of “labor issues” including the
Respondent’s benefits and how its president treated the em-
ployees. Even if there were other reasons for giving them such
a low rating, Towne’s testimony is enough to prove a prima
facie case of antiunion motivation. Because there is no evi-
dence that other employees had received such a low rating on
loyalty for not respecting company tools, I find that Respondent
has not met its burden of showing that they would have re-
ceived a “0” in the absence of protected activity. Although
neither Ferrick nor O’Connell were aware of this evaluation,
there is no dispute that the evaluation was in their personnel
files and available for consideration by Griffin when determin-
ing raises, promotions and the like. Accordingly, I find that the
Respondent discriminated against Ferrick and O’Connell on
September 13, in violation of Section 8(a)(1) and (3) of the Act,
by giving them a “0” rating for loyalty.
G. Additional Allegations of Antiunion Discrimination
1. Boylan’s warnings
(Pars. 15(b) and (c) of the consolidated complaint)
Todd Boylan has been a member of the Union since 1988.
He was hired by the Respondent in March and assigned to work
at the Bose project under Foreman Lexner. Boylan testified that
he began talking to his fellow employees about joining the
Union and handing out union literature about a month after he
started working. Lexner testified that he became aware of Boy-
lan’s union activities in April and informed Griffin of this. Ac-
cording to Lexner, Griffin told him to keep an eye on Boylan,
that he did not want Boylan working alone because he could
not be trusted. On cross-examination, Lexner acknowledged
that Griffin did not say why he believed that Boylan could not
be trusted, but Griffin had generally expressed concern about
union vandalism. When Boylan began distributing union litera-
ture at Bose, Lexner advised Griffin and Griffin told Lexner to
write up Boylan if he did it on worktime. According to Lexner,
Griffin regularly asked Lexner during telephone conversations
how Boylan and fellow union member Charlie Harris were
doing and whether there was anything Lexner could write them
up for.
Boylan went on strike the first week of June and picketed the
Bose site with fellow union members and employees Maguire
and Harris. According to Lexner, Griffin told him that he was
sending replacements for the striking employees so that work
would not be slowed and to have Boylan call the office if and
when he returned. When Boylan and Harris returned after pick-
eting, Boylan was sent to work at a prevailing rate job at the
Andover Middle School for a day before returning to Bose.
Griffin’s telephone conversation with Schultheis regarding
Boylan’s return to the Bose job was discussed above. Boylan
was one of the union members and adherents identified in the
Union’s June 24 letter to the Respondent as someone who
would be organizing the Respondent’s employees. In addition
to his union organizational activities, Boylan spoke up during a
meeting at Bose when project manager Burns told the employ-
ees that Lexner had been fired. Boylan expressed his belief that
Lexner had been “railroaded.”
On July 10, Boylan was given a verbal warning for allegedly
telling another employee to slow down on the job. According to
Boylan, one day on his way out of the building to use the bath-
room, he came across helper Steve Sweet who does not nor-
mally work in Boylan’s area. Boylan testified that he asked
Sweet what he was doing, if there was something he could do
to help. Sweet told Boylan that he was looking for material.
Boylan asked Sweet where he was working and Sweet told him.
As Boylan left the area, he said to Sweet, “[T]ake it easy.”
Sometime after Boylan returned from the bathroom, Foreman
Leombruno approached him with a binder containing the Re-
spondent’s rules and regulations and accused Boylan of violat-
ing the rules. When Boylan asked what he did, Leombruno told
him he was telling the men to “lay down.” According to Boy-
lan, he did not understand what Leombruno was talking about
until he saw Sweet in the background. Boylan testified that he
denied telling anyone to slow down and Leombruno said he
was going to give Boylan a written reprimand. Boylan pro-
tested that he should not be written up because he did not do
anything wrong. Later, Leombruno told Boylan that he would
receive a verbal warning and that Project Manager Burns would
be coming to the site to give him the warning. The warning,
signed by Burns and approved by Griffin cites section 10.5,
section 2.9, and accuses Boylan of “interfering with job pro-
gress” based on Sweet’s claim that Boylan told him to “slow
down.” On the warning notice, Burns wrote that Boylan,
“[A]dmitted he to[ld] Steve to ‘take it easy’.” Boylan testified
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1388
that “take it easy” is a meaningless expression that he custom-
arily uses and he denied any improper intention behind his
exchange with Sweet.
Leombruno testified that he gave Boylan the verbal warning
in response to a complaint from Sweet that Boylan was
“bothering [him] every time [he went] up and down the stairs,
telling me to slow down and not to work so fast.” In contrast to
Leombruno’s testimony regarding the nature of Sweet’s
complaint, the document memorializing Boylan’s verbal warn-
ing refers to only one incident of Boylan telling Sweet to “slow
down.” Leombruno further testified that Sweet complained to
him within Sweet’s first couple days on the job. Leombruno
acknowledged that he chose to believe Sweet in part because of
Boylan’s “obnoxious” behavior during the lunchtime discus-
sions. It is undisputed that Leombruno wrote up the verbal rep-
rimand and gave it to Boylan without giving Boylan an oppor-
tunity to respond to Sweet’s accusation. Leombruno did ac-
knowledge that, when he gave Boylan the verbal reprimand,
Boylan denied telling Sweet to slow down and claimed that he
only told Sweet to “take it easy” as a form of greeting. Sweet
did not testify in this proceeding.
Leombruno acknowledged being aware of Boylan’s pro-
union sympathies because of the heated lunchtime discussions
regarding the pros and cons of union representation described
above. Leombruno also corroborated Boylan’s testimony that
he spoke up in protest of Lexner’s discharge during the meeting
at which Burns informed the crew that the Respondent had
terminated Lexner. In preparation for a performance evaluation
in May, Leombruno had identified as one of his “personal goals
for the next six months to a year,” to “assist the company in on-
site issues with the current union problems.” Leombruno com-
pleted this form before he was assigned to the Bose job.
I credit Boylan’s testimony regarding his interaction with
Sweet and find that he did not in fact tell Sweet to slow down
production on the job. Although it is clear from the record that
Boylan was a strong and vocal union supporter, he did not ap-
pear to me to be someone who would lie under oath to advance
the cause. On the contrary, he appeared to be testifying in a
candid and truthful manner to the best of his recollection re-
garding events occurring 2 years earlier. In contrast, Leom-
bruno exhibited the same quality that the Respondent’s other
foremen and project managers had, i.e., a loyalty to Griffin and
the Respondent which bordered on cult-like fervor and a will-
ingness to say whatever he thought was necessary to protect
and defend his leader. This “loyalty” is demonstrated in the
forms Leombruno and others complete in preparation for their
performance evaluations, as well as in forms filled out to evalu-
ate progress or lack thereof on jobs assigned. I have also con-
sidered the fact that Leombruno exaggerated the nature of
Sweet’s complaint when he testified at the hearing, exploding a
one-time comment allegedly made by Boylan to “slow down”
into constant badgering of Sweet not to work so fast.
Having found that Boylan did not engage in the misconduct
alleged, I find that the Respondent violated Section 8(a)(1) and
(3) of the Act by verbally reprimanding Boylan on July 10. It is
undisputed that Boylan was a known union activist. The other
unfair labor practices found herein establish the Respondent’s
antiunion animus generally. The record also reveals specific
animus directed toward Boylan as shown by Leombruno’s
comments to Boylan during the lunchtime discussions and the
fact that he considered Boylan’s conduct during these discus-
sions in choosing to believe Sweet. In addition, I note that the
record reflects that Griffin was looking for something to write
Boylan up for since he was first informed by Lexner that Boy-
lan was soliciting for the Union. Leombruno’s quick response
to Sweet’s complaint demonstrated his desire to meet his “per-
sonal goal” by satisfying Griffin’s request. Accordingly, the
General Counsel has satisfied its burden of demonstrating that
union activity was a motivating factor in the Respondent’s de-
cision to issue a verbal warning to Boylan. The Respondent has
not met its burden under Wright Line38 of demonstrating that it
would have taken the same action in the absence of Boylan’s
union activities. Leombruno’s exaggerated description of the
conduct for which Boylan received the verbal warning shows
the pretextual nature of the Respondent’s asserted reason. An
employer does not meet its Wright Line burden when its as-
serted reason for discipline is found to be pretextual. Limestone
Apparel Corp., 255 NLRB 722 (1981).
The Respondent also argues that this allegation should be
dismissed because there is no evidence in the record that a re-
corded verbal warning affects an employee’s terms and condi-
tions of employment. However, under the Respondent’s disci-
plinary policies in effect at the time, a verbal warning was the
first step in a progressive disciplinary policy for certain types of
behavior.39 Moreover, the Respondent has taken the position, in
response to an allegation that Boylan was discriminatorily de-
nied a raise, that this verbal warning was one of the factors
establishing that he was not an exceptional employee deserving
of a raise at the time he requested one, under the Respondent’s
policies with respect to raises. This convinces me that a repri-
mand like the one issued to Boylan does affect terms and condi-
tions of employment under the Respondent’s personnel poli-
cies. Accordingly, I find that the Respondent violated Section
8(a)(3) of the Act by issuing a recorded verbal reprimand to
Boylan on July 10.
On September 19, Boylan was told to report to the Respon-
dent’s Holliston office where he met with Burns, Richards, and
Crowe and was given a written warning. The warning accuses
Boylan of soliciting during working time in a working area in
violation of company policy. According to the warning notice,
Foreman Eckhardt overheard a brief nonwork related conversa-
tion between Boylan and employee James Condon on Septem-
ber 12 and reported it to Leombruno. The warning indicates
that Leombruno “investigated” and was told by Condon that
Boylan had solicited him numerous times to join the Union and
that this solicitation occurred during worktimes in work areas.
Attached to the warning notice is a handwritten memo to Grif-
fin, dated September 18 and signed by Leombruno and Condon,

38 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1980), cert.
denied 455 U.S. 988 (1982).
39 I note that, under this policy, the first step for the type of violation
Boylan allegedly committed was a written warning, lending credibility
to Boylan’s testimony that Leombruno initially told him he would
receive a written warning for his comment to Sweet. The fact that the
Respondent ultimately chose a lesser form of discipline does not negate
the unlawful nature of the discipline which did issue.
WAYNE J. GRIFFIN ELECTRIC 1389
describing Boylan’s union solicitations. When he was given the
warning, Boylan said it was not true, it was bull and accused
the Respondent of giving reprimands to him so they could fire
him. Richards denied this was their intention. Boylan wrote a
statement on the reprimand denying the accusations and assert-
ing that he was being punished for his union affiliation.
Boylan testified that, during the time he worked with Con-
don, who was an apprentice, he and Condon frequently spoke
about the Union and other things, such as the job, family, and
current events. Boylan admitted asking Condon if he consid-
ered joining the Union and gave Condon Bill Corley’s phone
number at the union hall and telling Condon that he could call
Corley if he had any questions about the Union. Boylan also
admitted asking Condon while they were working whether he
had called Corley yet. Boylan also admitted being aware of the
company policy against soliciting during worktime and in work
areas.
Eckhardt testified that he overheard a heated discussion be-
tween Boylan and Condon while the two employees were pull-
ing wire in an electrical closet. According to Eckhardt, he heard
Boylan asking Condon why he did not call someone. Eckhardt
said he asked Condon what was going on when he heard Boy-
lan raise his voice and Condon told him that Boylan would not
leave him alone, that he kept bothering Condon about calling
someone whom Eckhardt surmised was a union organizer. Eck-
hardt testified that he immediately informed Leombruno about
this and was not thereafter involved. Leombruno described the
sequence of events a little differently. At first, Leombruno
claimed that Condon came to him with a complaint about Boy-
lan. On further questioning by Respondent’s counsel, he testi-
fied that Eckhardt told him that he overheard Boylan yelling
across the floor to Condon, “Are you going to call them? When
are you going to call them? Why don’t you Call them? You’ve
got to call the hall.” Leombruno testified that he then went and
talked to Condon who told him that Boylan was “[B]ugging
him all the time. He’s always harassing me about trying to call
this guy Bill, and he’s kind of bogging me down.” Leombruno
then added that Condon requested that he be moved to a differ-
ent work area. Curiously, Leombruno volunteered that despite
Condon’s complaint, the two employees were doing pretty well
in terms of production. According to Leombruno, after talking
to Condon, he called the office and reported this to Gerry Rich-
ards who told him to write something up and to tell Boylan to
report to the office the next morning. Leombruno testified that
he told Boylan to report to the office, as instructed by Richards.
Leombruno claims that, on his return from the office, Boylan
made some disparaging remarks about the Respondent and
Richards and that he responded, “I’ll address your concerns to
the office. If you want to meet with them again, I’ll let them
know, or you can call them. It’s an open forum.” Finally,
Leombruno claimed that Condon expressed concern about
working with Boylan when he heard that Boylan had been sent
to the office. In response to this, Leombruno sent Condon to the
office, where presumably he would meet up with Boylan who
had also been sent there. I find Leombruno’s description of
events grossly exaggerated and an obvious attempt to demon-
strate his loyalty to the Respondent by making Boylan’s con-
duct appear much worse than it was. Accordingly, I attach very
little weight to Leombruno’s testimony.40
Further support for my determination regarding Leom-
bruno’s credibility can be found in Richards’ version of these
events. According to Richards, Leombruno called him and
reported that Eckhardt had overheard a conversation between
Boylan and Condon about the Union. Richards testified that he
asked Leombruno to get a statement from Condon and that
Leombruno did not fax over the statement until a few days
later. Despite Leombruno’s claim that Boylan had been harass-
ing Condon, Richards testified that he concluded based on
Condon’s statement that there was no harassment because Con-
don had asked Boylan some questions and was a participant in
the discussions. Richards corroborated Boylan’s testimony that
he told the Respondent that he believed the warning was in
retaliation for union activity. There is no evidence in the record
that any other employee has ever been disciplined for a viola-
tion of the Respondent’s no solicitation rule. In fact, Crowe
testified that she could recall no such discipline.
Although I have discredited Leombruno, there is no dispute
that Boylan spoke to Condon while working about joining the
Union and solicited him to call Corley, the Union’s business
agent. It is also undisputed that the Respondent had a policy
prohibiting “solicitation by an employee of another employee
while either the person doing the soliciting or the person being
solicited is on working time.” Although the discipline pre-
scribed for a first offense under this policy is termination, the
Respondent chose to issue a written warning instead. The Gen-
eral Counsel does not allege that the Respondent’s rule is fa-
cially invalid. The General Counsel argues instead that Boy-
lan’s conversation with Condon was not “solicitation” in viola-
tion of this rule and that the facts demonstrate that he was dis-
ciplined for merely talking about the Union during work. Be-
cause it is undisputed that Boylan’s conversations with Condon
did not interfere with their production and because Condon was
not also disciplined for his participation in these discussions,
the General Counsel argues that Boylan’s written warning was
discriminatory. Finally, the General Counsel contends that even
if Boylan’s conduct could be characterized as solicitation, the
warning would still be unlawful because there is no evidence
that any other employees were disciplined for violation of this
rule.
The General Counsel’s argument is based on the erroneous
belief that solicitation is limited to distributing cards or litera-
ture. Boylan admitted soliciting Condon to join the Union and
soliciting him to call the union hall and admitted doing so while
both were working. The fact that no other employees have been
disciplined for violation of the rule does not establish a dis-
criminatory motive. The General Counsel has failed to prove
that other employees in fact engaged in solicitation in violation
of the rule with the Respondent’s knowledge. See Albertson’s,
Inc., 307 NLRB 787 (1992). Accordingly, I shall recommend
dismissal of this allegation. Ultrasystems Western Construc-
tors, 310 NLRB 545 (1993), enf. denied on other grounds 18
F.3d 251 (4th Cir. 1994); Cannondale Corp., 310 NLRB 845
fn. 2 (1993).

40 Condon did not testify.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1390
2. Denial of overtime to Foley
(Par. 15(d) of the consolidated complaint)
As noted above, Foley was employed by the Respondent at
the Mashpee School job from approximately late March to the
end of July. He was a longtime member of the Union who told
his foreman, Miscia, on his first day on the job that he intended
to organize the Respondent’s employees. He was identified in
the Union’s June 24 letter as an employee organizer and par-
ticipated in two strikes called by the Union, in early June and in
July. I have already found above that Griffin committed an
unfair labor practice when he told Foley on or about May 31
that he would never be a union shop. I also found above that
Griffin implied that Foley was a “troublemaker” in a conversa-
tion Griffin had with O’Connell the same day. Although I did
not find that Griffin’s comment violated the Act, it is evidence
of the Respondent’s animus toward Foley’s union activity.
Foley testified that when he was transferred to the Bose job
in late July, foreman Miscia told him that there would be Satur-
day work at Mashpee for the rest of the summer and that Miscia
would be calling Foley for overtime. Foley testified further that
he had worked overtime most Saturdays since he started at
Mashpee, but that he was never called for overtime after he
went to Bose. Foley recalled that two other employees who
were working at Bose and had not been working at Mashpee
worked overtime at Mashpee in August. Foley’s timecards
confirm his testimony that he worked virtually every Saturday
at Mashpee until he began working at Bose on July 29 and that
he did not work any more overtime, at least through September
8. These time records further reflect that Dye and Ruggiero did
work Saturdays at Mashpee, after putting in their 40 hours at
Bose, through August 25. On cross-examination, Foley admit-
ted that, the first Saturday he worked overtime, Miscia told him
that he did not get enough work done. He also admitted, some-
what reluctantly, that one other Saturday when he worked over-
time, Miscia expressed concern about Foley being hung over
and assigned him to work at ground level as a result. Foley
further acknowledged that he was 45 minutes late for work that
day. There is no dispute, however, that he continued to be as-
signed overtime work until his transfer to Bose notwithstanding
these incidents.
Miscia testified that, as Foley left the job to work at Bose,
Foley said, “[G]ive me a call if you need my help on Satur-
days,” and that he responded, “[F]ine.” Miscia acknowledged
that there was a substantial amount of overtime required at
Mashpee in August because they were trying to complete the
work before the scheduled opening of school. According to
Miscia, when he knew there was going to be overtime on a
Saturday, he would first seek volunteers from among the crew
at Mashpee. If he didn’t get enough volunteers, he would tell
his project manager, Trzecieski, how many men he needed and
Trzecieski would find them. Miscia testified that sometimes he
didn’t know who would be working until they showed up on
Saturday. Miscia denied calling any employees himself to work
overtime and denied telling Trzecieski that Foley had expressed
interest in working overtime at Mashpee. Miscia also denied
specifically requesting that Trzecieski assign Dye and Ruggieri
to work overtime at Mashpee. Foreman Towne testified that he
worked Saturday overtime at Mashpee. According to Towne,
he called Trzecieski, usually on a Thursday, to ask if there was
any overtime and to let Trzecieski know that he was available
to work overtime. Trzecieski would then tell him if there was
work available.
Trzecieski testified that it was his responsibility to find addi-
tional people to work the required overtime at Mashpee if Mis-
cia did not have enough employees from his regular crew who
were willing to work the overtime. According to Trzecieski,
when Miscia told him how many people he needed, Trzecieski
would offer the overtime to those people who had contacted
him and expressed an interest in working overtime. Trzecieski
identified Dye and Ruggieri as such employees. He testified
further that Foley never contacted him about working overtime.
Trzecieski denied that Miscia requested any employees by
name and he specifically denied that Miscia told him that Foley
was interested in working overtime at Mashpee. Trzecieski also
testified that, in choosing people to work overtime, he consid-
ered their performance and pay scale. With respect to the latter,
he preferred employees with lower pay rates because the over-
time cost would be less. There is no dispute that the Mashpee
job was a prevailing rate job. Trzecieski admitted that he be-
came aware of Foley’s union affiliation when the Respondent
received the Union’s letter revealing his union membership. I
infer from the other evidence in the record that Trzecieski was
referring to the Union’s June 24 letter.
The complaint alleges that the Respondent’s failure to call
Foley for Saturday work at Mashpee after his reassignment to
Bose violated Section 8(a)(1) and (3) of the Act. There is no
dispute that Foley was a known union organizer and the unfair
labor practice findings above establish that Respondent had
antiunion animus. There is also no dispute that there was over-
time work available at Mashpee, that Foreman Miscia knew of
Foley’s interest in working overtime, and that Foley was not
offered any overtime while other employees who were working
at Bose were. The General Counsel relies on this evidence to
establish a prima facie case that the Respondent discriminated
against Foley because of his union membership. The Respon-
dent contends that Foley did not work overtime because he
never contacted the project manager, Trzecieski, to express his
interest. Respondent argues alternatively that Trzecieski would
not have selected Foley for overtime because his pay rate was
too high and because he had problems when he did work Satur-
days while assigned to Mashpee.
Although the General Counsel has established knowledge
and animus, both general and specific as to Foley’s union ac-
tivities, and that Foley was not assigned overtime whereas other
employees were, I find that this is insufficient to establish a
prima facie case of discrimination under the Act. Rather, I find
that the preponderance of the evidence establishes that Foley
was not assigned overtime simply because Trzecieski, who
selected the employees for overtime, was not aware of his in-
terest in working overtime. Although I have found Foley a gen-
erally more credible witness than Miscia, it is immaterial that
Miscia “promised” to call Foley for overtime after his transfer
to Bose. Miscia was not a statutory supervisor and there is no
evidence in the record that Miscia had any role in selection of
employees for overtime beyond the authority he had over his
crew at Mashpee. After Foley left Mashpee, Miscia was no
WAYNE J. GRIFFIN ELECTRIC 1391
longer his foreman. In the absence of evidence that Miscia
communicated Foley’s interest to Trzecieski, I find that Trzeci-
eski’s failure to call Foley was not unlawfully motivated. Ac-
cordingly, I shall recommend dismissal of this allegation of the
complaint.
H. Lexner’s Discharge
(Pars. 12–14 of the Consolidated Complaint)
Lexner has been an electrician for 20 years, with approxi-
mately 13 years experience as a foreman. He was employed by
the Respondent from January 1995 until his discharge on June
21. Before being assigned to the Bose job, in September 1995,
Lexner was the Respondent’s foreman at the Adessa job, also in
Framingham. In a letter dated June 28, 1995, Griffin com-
mended Lexner for his performance on that job and praised
Lexner for being “up front, honest, direct and show[ing] all
sincere attempts to be fair.” Lexner was given a $3120 increase
in salary at the same time to reward his “continued success and
achievement.” On September 18, 1995, the electrical inspector
for the town of Framingham sent the Respondent a copy of a
letter complimenting Lexner for his competence and integrity.
The reassignment to Bose represented a significant increase
in Lexner’s responsibilities because the job was much larger.
Robert Burns was the Respondent’s project manager for the
Bose job. Paul Brown was the foreman at Bose before Lexner’s
reassignment. One of Lexner’s first assignments when he went
to Bose was to prepare the budget for the job. Lexner had no
role in the selection of employees or leadmen for the job, with
Griffin or the project manager determining who would be as-
signed. Lexner did determine where each of the two leadmen
would work and assigned them their crews. Schultheis and
Ruggieri were the leadmen on the Bose job.
As the project foreman, Lexner, was required to attend
weekly meetings with the General Contractor, Turner Construc-
tion, and the foremen from the other contractors to review the
job’s progress and to coordinate the work of the various trades
on site. Burns occasionally attended these meetings as well,
more often in the early stages of the job. Lexner was also re-
quired to attend a monthly labor meeting at the Respondent’s
office in Holliston with Wayne Griffin, Richards, and Burns to
discuss the budget. At these meetings, using computer print-
outs, the Respondent would keep track of the actual man-hours
used in relation to what had been projected in the budget. These
meetings were very important to Griffin as a means of tracking
each job’s progress to ensure that the Respondent achieved its
anticipated profit margin when the job was completed. At these
monthly meetings, the foreman’s photographs, videotapes, and
daily logs were reviewed to keep tabs on the progress of the
job. In addition, Burns visited the job approximately once a
week and walked the site with Lexner, sometimes asking ques-
tions about the job.
Lexner admitted that he had contact with the Union before
he was hired by the Respondent. The Union had assisted Lex-
ner and Ferrick in a wage dispute with their previous employer,
East Coast Electric. Lexner testified that he told the Union’s
business manager, Paul Ward, in December 1994, that he was
going to go to work for the Respondent and that Ward asked
him to keep in touch. Lexner admitted that he did “keep in
touch” with the Union while working for the Respondent. Lex-
ner further testified that he first became aware that the Union
was organizing the Respondent’s employees when a carpenter
brought some literature from Local 103 onto the job. Shortly
thereafter, Lexner saw Boylan wearing union stickers on his
hardhat and informed the Respondent through his project man-
ager. As noted above, Lexner also informed the Respondent
when Boylan started handing out union literature at Bose. Lex-
ner’s conversations with Griffin regarding these events has
already been discussed above.
As found above, Boylan and Harris, union members who
were working at Bose, went on strike and joined Maguire, an-
other union member employed by the Respondent, in picketing
the Bose job for several days in the first week of June. It is
undisputed that Boylan and Harris were replaced and that Boy-
lan was sent to another job on their return to work. Griffin’s
visit to the job and meetings with the employees during the
strike has already been discussed, as well as Griffin’s instruc-
tion to Lexner to interrogate the employees regarding their
union sympathies. A day or two after Griffin’s meetings with
the employees, according to Lexner, he participated in a con-
ference call with Griffin and others. There is much dispute
between the parties regarding who else participated in this call,
the purpose of the call and what was said. It is this call which
the General Counsel and the Charging Party rely on to prove
that Lexner was asked to commit an unfair labor practice. Prior
to and at the hearing, the Respondent sought to exclude testi-
mony regarding this call on the basis of attorney/client privi-
lege. My ruling, denying the Respondent’s motion, is part of
the record and affirmed.41 Credibility resolutions with respect
to this call are crucial to the outcome of the General Counsel’s
allegations regarding Lexner’s discharge.
Lexner testified that he received a message to call Griffin
and that, when he called Griffin, Griffin told him that Sandy
Crowe and an attorney, whose name Lexner could not recall,
were also on the line. Griffin told Lexner during this conference
call that he wanted Lexner to give Boylan and Harris a hard
time. According to Lexner, Griffin went on to say that he
wanted Lexner to start a fight with one of them. At that point,
the attorney interrupted and said, “[D]on’t have Jim do that.”
Griffin then told Lexner to find someone else, “some big Lurch
type of person” and have him start a fight with one of the Union
guys. Lexner recalled that either Griffin or the attorney then
said, “and don’t have anybody hurry over there to help him.”
Lexner testified further that he told Griffin that he did not do
things like that, that he had no problems with Boylan and Har-
ris, that they came to work every day, did their jobs and went
home. Griffin said okay and then Crowe and the attorney hung
up. When only Griffin and Lexner were on the line, Griffin told
Lexner, “[T]his is something you can get away with doing,
Jim.” Lexner responded, again, that he does not do things like

41 The Respondent’s request for special permission to appeal my rul-
ing during the hearing was denied by the Board as untimely filed, with-
out prejudice to the Respondent’s filing exceptions with the Board after
issuance of this decision. Because no party has argued in their briefs
that I should revisit my ruling, I shall not discuss it further herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1392
that and the conversation ended.42 In a statement Lexner gave
to the Union 4 days after he was terminated, Lexner described a
different version of this conversation. In that statement, Lexner
stated that it was Griffin who corrected himself and said that it
would probably not be a good idea for Lexner to give Boylan
and Harris a hard time, that Lexner should get some of the other
guys on the job to do it. In that statement, Lexner also stated
that it was the attorney who then suggested that Lexner get
another employee to start a fight with the union guys and that
Lexner not hurry to break it up.
Within three weeks of this conversation, Burns met Lexner
in the office trailer at Bose, gave him his final paycheck and
told Lexner that he was being let go for “lack of supervision.”
According to Lexner, neither Burns nor any other management
representative had spoken to him before this about problems
with his supervision, nor had he been warned that his job was in
jeopardy. According to Lexner, Burns did not provide any ex-
planation of the reason for his discharge at the time he was
terminated. On cross-examination, Lexner specifically denied
that anything unusual or different happened at the May monthly
labor meeting, the last one before his termination. Lexner ad-
mitted that he applied to join the Union before his termination
and that the Union’s executive board approved him for mem-
bership in July, about a month after he was fired. He also ac-
knowledged that he started working for a union contractor on
October 1, earning about $8/hour more than he did at the Re-
spondent. In addition, in the statement Lexner gave to the Un-
ion shortly after he was fired, he stated that he volunteered to
help the Union with its organizing drive “at the time [he] was
originally employed by” the Respondent. At the hearing, Lex-
ner initially denied this, until he was shown the statement. On
redirect examination, he testified that he meant that he offered
to help the Union after Boylan started wearing union stickers
on his hardhat.
Griffin acknowledged having a conference call with Lexner
and an attorney on the line. However, Griffin claims that Rich-
ards, not Crowe, was the fourth person on the line. According
to Griffin, it was Lexner who initiated this call, on Friday, June
7, after Boylan and Harris had been reinstated following the
strike. Griffin testified that Lexner complained that sending
Boylan to a prevailing rate job after he went on strike was bad
for morale and set a bad example for the other employees. Grif-
fin asked Lexner what he recommended be done. Lexner had
no recommendation. Griffin then asked if Lexner could use
Boylan back at Bose. When Lexner told him he could because
Schultheis had injured his hand that day, Griffin called Rich-
ards and Attorney Kohler into a conference call to obtain legal
advice regarding what to do about Boylan’s job assignment.
Griffin then had Lexner explain the problem to Kohler and
Griffin asked Kohler if he could put Boylan back to work at
Bose under the circumstances described by Lexner. According

42 As found above, Lexner told Schultheis and Ferrick about Grif-
fin’s request. Because Lexner was a statutory supervisor when he re-
layed this information to these employees, I found a violation of Sec.
8(a)(1) of the Act. Lexner’s statement to the employees would be
unlawful without regard to its truth because it is the reasonable ten-
dency of such a statement to chill employees’ exercise of their statutory
rights which determines whether the statement is unlawful.
to Griffin, Kohler replied that he could as long as it was for
business reasons. Apparently satisfied with that advice, Griffin
dismissed Kohler from the call and, with Lexner and Richards
still on the line, discussed reinstating Boylan to Bose the fol-
lowing Monday. Before the call concluded, Richards also re-
minded Lexner of his responsibilities for reporting and docu-
menting any further picketing at the jobsite. Griffin expressly
denied that he or anyone else said anything about giving Boy-
lan and Harris a hard time, or starting a fight or causing a fight
with them, as Lexner claimed.43
Sandy Crowe testified for the Respondent and denied par-
ticipating in any conference calls with Lexner and Griffin, or
with Lexner, Griffin and an attorney and specifically denied
that she was party to such a call in which Boylan and Harris
were discussed. On cross-examination, however, she acknowl-
edged being a party to conference calls with Griffin, legal
counsel and others within the Company, such as Richards or
one of the project managers, to discuss labor relations or human
resource matters. According to Crowe, it was a common prac-
tice for Griffin to conduct business through the use of confer-
ence calls. Nevertheless, she insisted that she never participated
in a call with a foreman like Lexner on the line in which Griffin
discussed causing a fight among employees.
Richards corroborated Griffin’s testimony about the June 7
conference call with Lexner and Kohler. According to Rich-
ards, Griffin called him and told him that he had Lexner on the
line and that he needed to talk to Richards and legal counsel
about Boylan’s assignment after the strike. At that point, Grif-
fin called Kohler, who joined the conference call. Griffin then
asked Lexner to recite his concerns about Boylan’s assignment
and Lexner expressed his belief that it did not look good for the
other employees to send Boylan to a prevailing rate job after he
went on strike. Griffin asked Kohler to brief Lexner on the
legal requirements for reinstating strikers and Kohler did, in
particular telling the parties on the line that the job assignments
had to be strictly for business reasons. Kohler exited the call
after about 2 minutes and Griffin, Richards, and Lexner dis-
cussed sending Boylan back to Bose as a replacement for the
injured Schultheis. After agreeing to this, Griffin wrapped up
the conversation by asking Richards if he had anything to add.
Richards reminded Lexner of his responsibilities for reporting
information to the office in the event of picketing and the call
concluded. Richards specifically denied that Griffin told Lexner
to give Boylan and Harris a hard time, and denied that there
was any discussion of starting a fight or having someone else
start a fight with them, with Lexner not hurrying to break it up.
Richards’ account of this conversation did not vary on cross-
examination, despite extensive questioning by the Charging
Party’s counsel in an effort to impeach his credibility.
Griffin also testified, further contradicting Lexner, that he
had a conversation with Lexner, after his meeting with the em-
ployees at Bose on June 5, in which he questioned Lexner re-
garding a discrepancy in manhour projections for completion of
the job. Griffin and Richards testified that this discrepancy
between projected hours and budgeted hours first came to light
43 Attorney Kohler, who represented the Respondent at the hearing,
did not testify regarding this conference call.
WAYNE J. GRIFFIN ELECTRIC 1393
during the May labor meeting and that Lexner could not ex-
plain the variance, or swing, as Griffin described it. Griffin
testified that it was this problem which led to Lexner’s termina-
tion, not any refusal by Lexner to commit unfair labor prac-
tices. The General Counsel, the Charging Party, and the Re-
spondent spent a good deal of time at the hearing establish-ing
whether or not there was any manhours problem on the Bose
job and whether or not Lexner would have been fired if there
was such a problem.
As noted above, it is essential to the General Counsel’s case
that I credit Lexner regarding the conference call. If I do not
credit Lexner, then the General Counsel has failed to prove that
Lexner refused to commit an unfair labor practice and the al-
legedly unlawful motivation for his termination evaporates.44
On the other hand, if I credit Lexner, I must determine, apply-
ing a Wright Line analysis, whether his refusal to cause the
physical assault of two union supporters was the motivating
factor in the decision to terminate him, or whether the Respon-
dent established that Lexner would have been discharged even
absent this refusal because of problems with the way he ran the
Bose job. There are no witnesses who can corroborate Lexner’s
testimony. On the other hand, the Respondent had the benefit of
Griffin and Richards mutually corroborative testimony regard-
ing a conference call they participated in with Lexner and Koh-
ler and Crowe’s persistent denial that there was a conference
call in which she and Lexner were participants.
Resolution of these credibility issues is made more difficult
by the fact that neither Griffin nor Lexner impressed me as
entirely candid and truthful witnesses. As noted above, both
had much to gain from the outcome of these proceedings.
Moreover, I have already discredited Griffin’s denials and ex-
planations regarding other alleged unfair labor practices and
have noted how the importance of “loyalty” in the Respon-
dent’s corporate culture impacted the credibility of many of the
Respondent’s witnesses. On the other hand, Lexner displayed a
generally poor recall of most events he was asked to testify
about, especially on cross-examination when the Respondent’s
counsel attempted to elicit information that might adversely
affect his credibility.45 I also note that Lexner’s testimony was
at times inconsistent with the sworn statement he gave to the
Union a scant 4 days after his termination. The General Coun-
sel’s attempts on redirect to clarify the inconsistencies only
exacerbated them. For example, Lexner denied offering to help
the Union with its campaign against the Respondent when he
started working for the Respondent, in contradiction of the
statement he gave to the Union. His claim, on redirect, that he

44 The General Counsel briefly cites Lexner’s testimony that Griffin
asked him to interrogate employees as another unlawful motivation for
his termination. However, Lexner did not testify that he refused to
interrogate employees, he simply ignored the request and, apparently,
Griffin never followed up by inquiring any further of Lexner as to the
results of any interrogation. I find that, even if Griffin asked Lexner to
interrogate employees, the General Counsel has failed to show that
Lexner’s failure to do so was a motivating factor in his termination.
45 For example, although he acknowledged that the Union assisted
him in obtaining a monetary settlement of prevailing wage claims
against his former employer, he claimed no recollection of the amount
he recovered or when he received it.
made this offer only after Boylan started wearing union stickers
on his hardhat is still inconsistent with the prior sworn state-
ment. Also inconsistent with prior sworn testimony is his claim
at the hearing that Griffin asked him whether he had “written
up,” i.e., given a written warning to, Boylan and Harris. He
denied in his pretrial affidavit given a month after his termina-
tion that Griffin ever asked him this. At most, Griffin asked him
whether there was anything Lexner could write them up for, a
different question than that described in his testimony at the
hearing. Finally, Lexner acknowledged “playing both sides”
when he wrote an antiunion memo to Griffin in April, which
Griffin then used in his meetings with the employees to dis-
courage their support for the Union. According to Lexner, he
did this because he was getting signals that the Respondent’s
management perceived him to be prounion and he wanted to
convince them he was a team player, even though he in fact
was sympathetic to the Union.
Also complicating the resolution of this credibility issue is
the involvement of an attorney, in all probability the same at-
torney who represented the Respondent at the hearing. A deci-
sion to discredit Griffin and Richards would be tantamount to
saying that the Respondent’s counsel suborned perjury because
both witnesses identify him as a participant in the call with
Lexner. If they were not being truthful when they denied Lex-
ner’s version of the conversation, Respondent’s counsel would
surely know they were lying, yet he had them take the stand
and testify nonetheless. Counsel for the Charging Party obvi-
ously is aware of this implication because he argues that the
attorney probably exited the call quickly, before any talk of
assaulting the union activist came up. This argument is incon-
sistent with the testimony of his own witness who claimed that
the attorney was a direct participant in the discussion of the
unfair labor practice. The General Counsel and counsel for the
Charging Party also attempt to get around this issue by specu-
lating that there were in fact two conference calls, one with
Crowe and the other with Richards. The problem with this ar-
gument is that no witness claimed there were more than the one
conference call. Absent evidence of a second conference call, I
must find that there was only one call on June 7. The two ver-
sions of this call offered by General Counsel and the Charging
Party on the one hand and the Respondent on the other simply
can not be harmonized.
Having considered all of the above factors and the demeanor
of the witnesses, I cannot credit Lexner’s version of this call.
The inconsistencies between his testimony at the hearing and
his prior statements, his generally poor recall of events, his
desire to help the Union which had helped him collect money
from a prior employer and to become a union member convince
me that he was not being truthful when he accused Griffin of
asking him to arrange to have two employees who were union
activists assaulted on the job. While I have no doubt that Grif-
fin was vehemently opposed to the idea of his employees join-
ing the Union, and that he was willing to violate the Act in the
manner I have found previously in this decision in order to
avoid recognizing the Union as his employees’ exclusive col-
lective-bargaining representative, nothing in this record suggest
that he would go beyond interrogation, surveillance, threats of
job loss, and promises of benefits and resort to physical vio-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1394
lence as a means of preventing the Union from representing his
employees. Particularly since, at the point in time when this
conversation allegedly occurred, there was no need for such
action. The Union’s strike was supported by only a handful of
employees, even at the Bose job which was purported to be a
hotbed of union support. Lexner’s testimony simply does not
make sense.
In reaching this conclusion, I have also considered the testi-
mony of Ferrick and Schultheis, whom I credited, that Lexner
told them, before he was terminated, about Griffin’s request.
The General Counsel and the Charging Party argue that this
establishes the truthfulness of Lexner’s testimony because he
would have no reason to concoct such a story at that time.
However, Lexner admits that he had applied to become a union
member before he was terminated and that he had offered to
help the Union with its campaign no later than April. What
better way to help the Union than by telling employees who
were not yet union members that the owner of the Company
would go so far as to cause the assault of employees who were
union members! It is clear from the testimony of Ferrick and
Schultheis that Lexner’s support for the Union was a factor in
their decision to join the Union as well. In addition, Lexner
himself acknowledged, in the July affidavit, that he suspected
that Griffin “gave up on him” as an ally in the Respondent’s
antiunion campaign a month before his termination. If Griffin
then questioned Lexner’s handling of the Bose job on June 5, as
Griffin claims he did, this would have given Lexner reason to
believe his job was in jeopardy at the time he told Ferrick and
Schultheis about Griffin’s “plans” for Boylan and Harris.46
Thus, my decision to credit Ferrick and Schultheis does not
require that I credit Lexner as well.
Because the General Counsel has failed to prove by credible
evidence that Lexner refused to commit an unfair labor prac-
tice, it is unnecessary to decide whether the Respondent termi-
nated Lexner for having a bad job at Bose or for some other
reason. I note that the General Counsel and the Charging Party
make a persuasive argument that Lexner would not have been
fired for the alleged discrepancy in manhour projections. At
most, this suggest that the Respondent may have decided to rid
itself of a supervisor who was perceived to be a union supporter
and replace him with one whose “loyalty” to the Respondent
was beyond question “in order to ensure that labor unrest did
not have a strongly adverse impact on contract performance.”47
Assuming that were the Respondent’s motivation for terminat-
ing Lexner, it would not be an unfair labor practice. The Act
does not protect statutory supervisors who engage in union
activities. See Parker-Robb Chevrolet, 262 NLRB 402 (1982),
enfd. sub nom. Food & Commercial Workers Local 1095 v.
NLRB, 711 F.2d 383 (D.C. Cir. 1983). Accordingly, I shall
recommend dismissal of the complaint’s allegation that the

46 Significantly, the General Counsel chose not to recall Lexner in
rebuttal to counter the detailed testimony of the Respondent’s witnesses
regarding the May labor meeting and Griffin’s June 5 conversation with
Lexner about the swing in manhours.
47 The Respondent’s agent, Damian Cassin, made this statement in a
May 23, 1997 letter to Turner Construction Company, the general
contractor on the Bose job.
Respondent terminated Lexner in violation of Section 8(a)(1) of
the Act.
CONCLUSIONS OF LAW
1. The Respondent, Wayne J. Griffin Electric, Inc., is, and
has been at all material times, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. International Brotherhood of Electrical Workers, Local
103, AFL–CIO is, and has been at all material times, a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by:
(a) Interrogating employees regarding their union and pro-
tected concerted activities and the union activities of their fel-
low employees; creating the impression among employees that
their union activities were under surveillance; and soliciting
employees to report on the union activities of their fellow em-
ployees.
(b) Maintaining rules prohibiting employees from discussing
their wages, benefits, and working condiditons and by enforc-
ing those rules through threats of discipline and issuance of
written warnings.
(c) Soliciting employees to revoke their union authorization
cards and instructing them to contact the Respondent’s presi-
dent if they wished to revoke their union authorization cards.
(d) Threatening employees with job loss if they selected the
Union to be their collective-bargaining representative; implying
that support for the Union would effect their advancement with
the Respondent; and equating employees’ support for the Union
with disloyalty to the Respondent and its president.
(e) Telling employees that discipline they received was a
subterfuge to conceal discriminatory actions against union sup-
porters.
(f) Telling employees that selection of the Union as their col-
lective-bargaining representative would be futile because the
Respondent would never be a union contractor.
(g) Telling employees that the Respondent would cause un-
ion employees to be assaulted.
(h) Promising employees increased benefits if the Union did
not file unfair labor practice charges against the Respondent.
4. The Respondent violated Section 8(a)(1) and (3) of the
Act by downgrading employees on loyalty on their crew evalu-
ions and by issuing verbal reprimands to employees because of
their union membership and activities.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not commit any other unfair labor
practices alleged in the consolidated complaint as amended at
the hearing.
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. Specifically, the Respondent shall be
ordered to rescind the negative loyalty ratings given to Daniel
Ferrick and Richard O’Connell on September 13 and 27, 1996,
nd the recorded verbal reprimand issued to Todd Boylan on
WAYNE J. GRIFFIN ELECTRIC 1395
July 10. To the extent that Boylan’s September 19 written
warning was based on the fact that he had received the unlawful
verbal warning, the written warning shall be reduced to a verbal
reprimand. I shall further recommend that Ferrick, O’Connell
and Boylan be notified in writing that the Respondent has taken
these actions to remedy the unfair labor practices committed
against them.
To remedy the Respondent’s unfair labor practices in viola-
tion of Section 8(a)(1), I shall recommend that a ntice to eploy-
ees be posted at the Respondent’s Holliston office and at all
jobsites within the service division and the New England Re-
gion of the construction division. In addition, because the pro-
jects on which the unfair labor practices were committed may
have ended, I shall recommend that the Respondent mail a copy
of the ntice to any former employees who were employed on
those projects on and after February 20, 1996, the date of the
first unfair labor practice found.
I shall further recommend that the Respondent rescind any
rules which still exist that prohibit employees from discussing
their wages, benefits, and working conditions and any disci-
pline that may have been issued for a violation of such rules.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended48
ORDER
The Respondent, Wayne J. Griffin Electric, Inc., Holliston,
Massachusetts, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees regarding their union and pro-
tected concerted activities and the union activities of their fel-
low employees, creating the impression among employees that
their union activities were under surveillance, and soliciting
employees to report on the union activities of their fellow em-
ployees.
(b) Maintaining rules prohibiting employees from discussing
their wages, benefits, and working condiditons and enforcing
those rules through threats of discipline and issuance of written
warnings.
(c) Soliciting employees to revoke their union authorization
cards and instructing them to contact the Respondent’s presi-
dent if they wished to revoke their union authorization cards.
(d) Threatening employees with job loss if they selected the
Union to be their collective-bargaining representative; implying
that support for the Union would effect their advancement with
the Respondent; and equating employees’ support for the Union
with disloyalty to the Respondent and its president.
(e) Telling employees that discipline they received was a
subterfuge to conceal discriminatory actions against union sup-
porters.
(f) Telling employees that selection of the Union as their col-
lective-bargaining representative would be futile because the
Respondent would never be a union contractor.

48 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(g) Telling employees that the Respondent would cause un-
ion employees to be assaulted.
(h) Promising employees increased benefits if the Union did
not file unfair labor practice charges against the Respondent.
(i) Discriminating against employees because of their union
membership, activities, and support by downgrading in loyalty
on their crew evaluations and by issuing verbal reprimands.
(j) 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, rescind any
rules which still exist that prohibit employees from discussing
their wages, benefits, and working conditions and any disci-
pline that may have been issued for a violation of such rules.
(b) Within 14 days from the date of this Order, rescind the
negative loyalty ratings given to Daniel Ferrick and Richard
O’Connell on September 13 and 27, 1996, and the recorded
verbal reprimand issued to Todd Boylan on July 10 and, within
3 days therafter, notify them in writing that this has been done
and that the negative evaluations and verbal reprimand will not
be used against them.
(c) Within 14 days after service by the Region, post at its fa-
cility in Holliston, Massachusetts, and at all jobsites within the
service division and the New England Region of the construc-
tion division copies of the attached notice marked “Appen-
dix.”49 Copies of the notice, on forms provided by the Regional
Director for Region 1, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business, closed the facility involved in these
proceedings, or completed any of the construction projects
involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent,
at such facilities and construction projects, at any time since
February 20, 1996.
(d) 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.
IT IS FURTHER ORDERED that paragraphs 7(a)–(d), (i),
(k), (l), (n), (s), (v), (z), (cc), (hh), (qq), and (xx), paragraphs
8(a)(iv) and (d), paragrphs 12–14, and paragraphs 15(c) and (d)
of the consolidated complaint, as amended, are dismissed.
49 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1396
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 interrogate you regarding your union and
protected concerted activities and the union activities of your
fellow employees, create the impression that your union activi-
ties are under surveillance, nor solicit you to report on the un-
ion activities of your fellow employees.
WE WILL NOT maintain rules prohibiting you from dis-
cussing your wages, benefits, and working condiditons nor
enforce those rules through threats of discipline and issuance of
written warnings.
WE WILL NOT solicit you to revoke your union authoriza-
tion cards nor instruct you to contact the president of the Com-
pany if you wish to revoke your union authorization cards.
WE WILL NOT threaten you with job loss if you select the
Union to be your collective-bargaining representative; imply
that your support for the Union would effect your advancement
with the Company; nor equate your support for the Union with
disloyalty to the Company and its president.
WE WILL NOT tell you that discipline you receive is a sub-
terfuge to conceal discriminatory actions we’ve taken against
union supporters.
WE WILL NOT tell you that your selection of the Union as
your collective-bargaining representative would be futile be-
cause we would never be a union contractor.
WE WILL NOT tell you that we will cause union employees
to be assaulted.
WE WILL NOT promise you increased benefits if the Union
does not file unfair labor practice charges against us.
WE WILL NOT discriminate against you because of your
union membership, activities, and support by downgrading you
in loyalty on your crew evaluations or by issuing verbal repri-
mands.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights guaranteed
by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Or-
der, rescind any rules which still exist that prohibit you from
discussing your wages, benefits, and working conditions and
any discipline that may have been issued for a violation of such
rules.
WE WILL, within 14 days from the date of the Board’s Or-
der, rescind the negative loyalty ratings given to Daniel Ferrick
and Richard O’Connell on September 13 and 27, 1996, and the
recorded verbal reprimand issued to Todd Boylan on July 10
and, WE WILL, within 3 days therafter, notify them in writing
that this has been done and that the negative evaluations and
verbal reprimand will not be used against them.

WAYNE J. GRIFFIN ELECTRIC, INC.