Zeppelin Electrical Co.

National Labor Relations Board - Board Decisions

May 20, 1999

328 N.L.R.B. 452 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 452
Zeppelin Electric Company, Inc. and Local Union No
25, International Brotherhood of Electrical
Workers, AFL–CIO. Case 29–CA–20660
May 20, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On October 6, 1997, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act by threatening employee Ste-
phen Shanahan, and did not violate Section 8(a)(3) of the
Act by discharging Shanahan for engaging in union or
protected concerted activity. We disagree.
The Respondent is a nonunion electrical contractor. Its
president and owner is William Zeppelin. In early Janu-
ary 1997,2 the Respondent advertised for an electrician
who would be willing to travel. Stephen Shanahan, a
member of the Union who had assisted it in organizing
electrical contractors on a voluntary basis, answered the
ad.3 On Monday, January 6, Shanahan was interviewed
by the Respondent’s supervisor, Charles Zeppelin
(Charles), who was also William Zeppelin’s brother.
During the interview, the two discussed a job in Albany
that the Respondent had scheduled for later that week.
Shanahan informed Charles that he could not travel that
week because of child custody problems. Charles replied
that Shanahan’s inability to travel was a problem that
would have to be discussed with William Zeppelin.
Thereafter, William Zeppelin told Shanahan that if he
could not travel then he could not work for the Respon-
dent in Albany, but if the Respondent needed an extra
employee on a local job in the future they would call
Shanahan.4

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 All dates hereafter refer to 1997.
3 The judge stated that Shanahan had made his living as a “salt,” and
that Shanahan had been fired from several nonunion jobs. The state-
ments are pure speculation, and unsupported by the record evidence.
4 William Zeppelin testified that he told Shanahan he “specifically
need[ed] . . . people to come to Albany . . . [but] if we’re down here
[locally] and I need an extra hand or two . . . I’ll definitely call you if
that’s what you would like.” The judge mischaracterized this testimony
by stating that William Zeppelin told Shanahan “that if he couldn’t
travel, then he could not work for the company.”
Shanahan was hired on January 6 and worked for the
next 2 days. Upon being hired, Shanahan informed the
Union of his employment with the Respondent.
Shanahan was laid off later that week when the Respon-
dent began working in Albany.
Thereafter, the Respondent recalled Shanahan to work
on a job beginning January 17. On January 17, Shanahan
faxed William Zeppelin a letter from the Union advising
that, during his off-hours, Shanahan would be trying to
organize the Respondent’s employees on behalf of the
Union. The letter also cautioned the Respondent not to
discriminate against Shanahan. William Zeppelin re-
ceived the letter at his office and immediately telephoned
his brother at the jobsite. He read the letter to Charles
and told him not to do anything about it, but advised that
Shanahan should not engage in union activity during
working time.
There is conflicting testimony concerning what oc-
curred after Shanahan arrived at the jobsite.
Shanahan testified that upon his arrival at the jobsite,
he handed the Union’s letter to Charles. After reading
the letter, Charles asked him if it was some kind of joke.
Shanahan responded that it was not a joke and returned
to work. Approximately 20 minutes later, Charles ap-
proached Shanahan and yelled, “I love my brother and if
anything happened to him, I will fucking kill you.” He
then asked Shanahan what work he had done all morn-
ing. Shanahan pointed to some bent pipe and told Char-
les that the Respondent’s workers did not know what
they were doing and that if the Respondent hired union
members, it would get competent workmen. Charles
then told Shanahan to take his “union shit and get out of
here.” Shanahan then left the jobsite and went to the
police station to file a complaint.
Charles’ version is different. He testified that when
Shanahan handed him the letter, he noticed that
Shanahan was wearing a union hat rather than the re-
quired hairnet or hardhat. Charles asked Shanahan if he
was kidding about the letter, and Shanahan said no.
Later that morning, Charles observed Shanahan talking
to an employee about the Union, whereupon he sent
Shanahan to get a hacksaw. When Shanahan returned
without one, he approached Charles and asked him to
join the Union. Charles responded negatively. Shanahan
said, “[W]e have ways of making you join.”
Thereafter, according to Charles, Charles noticed that
Shanahan was not performing his assigned work and told
him that “if anything happens to my brother I’m holding
you personally responsible.” Shanahan gave him the
finger, and Charles said, “[H]ow would you like it if your
family was messed with.” Shanahan asked if Charles
was threatening him, and said he was going to the police.
Charles told Shanahan to leave, whereupon Shanahan

328 NLRB No. 68
ZEPPELIN ELECTRIC CO. 453
asked if he was being fired. Charles replied that he was
not the boss, that he could not fire him, and that he would
have to talk to the boss. Shanahan left the job and went
to the police station.
It is uncontroverted that Shanahan never returned to
work for the Respondent.
Without making specific credibility findings regarding
the conflicts in testimony, the judge found that Charles
made the statement threatening to kill Shanahan. He
further found, however, that the threat was not in re-
sponse to Shanahan’s union or protected concerted activ-
ity, but rather was made because of Charles’ belief that
Shanahan was trying to sabotage the Respondent’s job.
The judge also found that Shanahan never intended to
become a permanent employee.5 According to the judge,
Shanahan was intent upon provoking the Respondent
into discharging him, and accomplished this result by not
doing the work assigned to him and by not wearing the
required hairnet or hardhat. Accordingly, the judge con-
cluded that the Respondent did not unlawfully threaten or
discharge Shanahan for engaging in union or protected
concerted activity.
We disagree with the judge’s conclusion. At the out-
set, we note that, apart from crediting Shanahan’s testi-
mony that Charles threatened to kill him, the judge failed
to make specific credibility findings as to the conflicting
testimony concerning the remarks that were made prior
to the discharge.6 If Shanahan’s testimony is credited, a
finding of unlawful conduct is clearly warranted.7 How-
ever, even if Charles’ testimony is credited with respect
to matters other than his threat to kill, we find that the
evidence is sufficient to establish that the Respondent
acted unlawfully. According to Charles, he asked Sha-
nahan if he was kidding about the letter advising the Re-
spondent about Shanahan’s union activity, and Shanahan
responded no. Discussion about the Union continued
when Shanahan asked Charles to join the Union, and
upon receiving a negative response, said “[W]e have
ways of making you join.” Charles subsequently
approached Shanahan when he was not working, an ar-
gument ensued over the earlier exchange concerning the
Union, and Shanahan was ordered to leave.
This testimony, together with the credited testimony
that Charles contemporaneously threatened to kill Sha-
nahan if anything happened to his brother, establishes a
prima facie showing under Wright Line, 251 NLRB 1083
(1980) enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied

5 In making this finding, the judge referenced his earlier decisions in
M. J. Mechanical Services, 324 NLRB 812 (1997); and Sullivan Elec-
tric Inc., JD–(NY)–04–95. In M. J. Mechanical Services, the Board, in
reversing the judge’s finding that the employees’ salting activities were
not protected, found that nothing in the record supported the judge’s
conclusions about the salting activity in that case.
6 There are no exceptions to the judge’s finding that Shanahan was
terminated.
7 Indeed, under Shanahan’s version, the threat to kill and discharge
were solely linked to Shanahan’s union activity.
denied 455 U.S. 989 (1982),8 that Shanahan’s protected
activity was a motivating factor in the decision to termi-
nate him. The prima facie showing is made by the testi-
mony of both Charles and Shanahan, that, upon learning
of Shanahan’s salting activities, the Respondent
promptly threatened Shanahan and discharged him.
Although Charles observed that Shanahan was not
wearing the required hairnet or hardhat and was periodi-
cally not working, the record does not show that these
issues prompted Charles to ask Shanahan to leave. In-
deed, there is no contention that Shanahan was warned
about the hair attire or about not working. Nor is there a
contention that the Respondent was not happy with Sha-
nahan prior to learning of his union activity. To the con-
trary, the Respondent had called Shanahan back to work
after he had worked 2 days for the Respondent; and even
as to Shanahan’s conduct on his last day of work, Char-
les does not testify to having admonished him for failing
to work steadily. Thus, the Respondent has not met its
burden, under Wright Line, of showing that Shanahan
would have been terminated even absent his union activ-
ity.
The judge acknowledges that the threat to kill and the
discharge were related to Shanahan’s role as a union salt.
As noted above, though, he assumed, based on his deci-
sions in other cases,9 that because Shanahan was a salt,
he was trying to sabotage the Respondent’s operations
and was looking for a way to be fired. The Board, how-
ever, has repudiated this judge’s assumptions about salt-
ing in M. J. Mechanical Services, supra, and Ippli, Inc.,
321 NLRB 463 (1996). In M. J. Mechanical Services,
supra at 813 fn. 2, the Board stated that “[I]t is clear that
the judge’s personal opinion of union ‘salting’ rather
than a close review of the record informed his conclu-
sion.” The comment is equally applicable here. The
record is devoid of any evidence that Shanahan’s in-
tended salting activity would have included attempts to
be fired or to sabotage the Respondent’s operations. In-
deed, there is no evidence to support a finding that Sha-
nahan’s planned salting activities would involve any un-
protected conduct.
Without specifically addressing the judge’s assump-
tions about salting, our dissenting colleague nevertheless
contends that the judge correctly found that the Respon-
dent did not unlawfully threaten or discharge Shanahan.
Our colleague contends that, wholly apart from his union
activity, Shanahan’s failure to perform his work and to
wear the required head gear led Charles to reasonably
fear that Shanahan would disrupt the job, and that the
Respondent’s conduct was a legitimate response to that
8 Under Wright Line, once the General Counsel establishes a prima
facie case that an employee’s protected conduct was a motivating factor
in the employer’s discharge decision, the employer has the burden of
showing that it would have taken the same action even in the absence
of the protected conduct.
9 Sullivan Electric, Inc., supra; and M. J. Mechanical Services, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 454
fear. Our colleague further contends that even if the
General Counsel established a prima facie case, the Re-
spondent rebutted it by showing that it had decided not to
retain Shanahan because he would not travel. We find
no merit to these contentions.
Even if the testimony of Charles, which is more favor-
able to the Respondent, is credited, that testimony would
not provide a reasonable basis for concluding that the
discharge of Shanahan was motivated by the Respon-
dent’s belief that Shanahan’s failure to wear required
head gear on that day and to do all the work assigned to
him portended an intent to sabotage the job. First, as
noted above, there is nothing in Charles’ testimony that
shows that the Respondent ordered or requested Shana-
han to replace the allegedly inadequate headgear with a
hardhat and hairnet. Similarly, in his testimony
concerning Shanahan’s alleged work deficiencies, al-
though Charles describes Shanahan’s unjustifiable failure
to bring a requested piece of equipment to him and to
work steadily on the job, he testifies to no instance of his
reprimanding Shanahan for this or directing him to get
on with the job. Instead, he describes an angry exchange
between the two after Shanahan asked him to join the
Union, which ended with Charles’ saying, “I can’t finish
the job like this” and ordering Shanahan to leave. If the
Respondent had been focused on an impediment to fin-
ishing the project posed by a failure on Shanahan’s part
to work steadily on it, it is likely that their exchanges
would have turned on that. Instead, the angry exchanges
between Shanahan and Charles (as reported by Charles)
concerned Shanahan’s remarks about the Union. Like-
wise, rather than ordering Shanahan to put on the proper
headgear and get busy on the work at hand, Charles told
him to leave. In short, it is untenable that the Respon-
dent’s reaction to Shanahan’s conduct on that day was
motivated by anything other than Shanahan’s status as a
salt and his exchanges with Charles on the subject of his
organizing.
Our colleague also contends that, under Shanahan’s
version of the events, the Respondent’s discharge of
Shanahan was lawful because he made a “flippant and
disrespectful response” to a work-related question. The
Respondent, however, never offered this as the reason
that Shanahan was discharged, and there is nothing in the
record supporting such an assertion. This rationale is
thus unavailable to the Respondent.
We also find nothing in the record to support our col-
league’s supposition that the Respondent was less toler-
ant of Shanahan’s conduct because it had already decided
not to make Shanahan a permanent employee in view of
his inability to travel. Nor do we find persuasive our
colleague’s contention that, even assuming the General
Counsel established a prima facie case, the Respondent
rebutted it by showing that it would not have retained
him because of his inability to travel. First, as noted
above at footnote 4, while the record shows that the Re-
spondent did not hire him for a job in Albany because of
his inability to travel, it does not show that the Respon-
dent had decided not to retain him at all. To the contrary,
and consistent with William Zeppelin’s testimony, the
fact that the Respondent hired Shanahan for the job from
which he was discharged shows its willingness to hire
Shanahan for local jobs. Moreover, Shanahan’s inability
to travel is irrelevant to the lawfulness of his discharge.
At most, it is relevant to the issue of how long Shanahan
would have been retained his current job ended. That is
a matter for consideration in a compliance proceeding to
determine the amount of Shanahan’s backpay.
In sum, there is no basis for the judge’s negative char-
acterizations of Shanahan’s salting activity or of his find-
ings concerning the Respondent’s motivations toward
Shanahan’s conduct. We find that Shanahan’s salting
activity was protected by the Act and that it was a moti-
vating factor in the decision to terminate, and the Re-
spondent has failed to establish that it would have dis-
charged Shanahan absent that activity. Accordingly, we
find that the Respondent violated Section 8(a)(1) of the
Act by threatening to kill Shanahan if he engaged in pro-
tected activity, and that the Respondent violated Section
8(a)(3) of the Act by discharging Shanahan for engaging
in union activities.
ORDER
The National Labor Relations Board orders that the
Respondent, Zeppelin Electric Company, Inc., Holbrook,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening to kill employees if they engage in un-
ion activities.
(b) Discharging employees for engaging in union ac-
tivities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action necessary to
effectuate the Act.
(a) Within 14 days from the date of this Order, offer
Stephen Shanahan full reinstatement to his former posi-
tion or, if that position no longer exists, to a substantially
equivalent position without prejudice to his seniority and
other rights and privileges.
(b) Make whole, commencing from the date of his un-
lawful discharge, employee Stephen Shanahan for any
loss of pay and other benefits suffered by him as a result
of the discrimination practiced against him. Backpay
shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest computed as set
forth in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(c) Within 14 days from the date of this Order, remove
from its files any reference to the discharge of employee
ZEPPELIN ELECTRIC CO. 455
Stephen Shanahan, and within 3 days thereafter notify
him in writing that this has been done and that evidence
of his unlawful discipline will not be used as a basis for
future personnel action against him.
(d) Preserve and within 14 days of a request, make
available to the Board or its agent for examination and
copying, all payroll records, social security records and
reports, and all other records necessary to analyze the
amount of backpay due herein.
(e) Within 14 days after service by the Region, post at
its facility in Holbrook, New York, copies of the notice
marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being signed by the Respondent’s 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 or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 17,
1997.
(f) Within 21 days after service by the Region file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HURTGEN, dissenting.
Contrary to the majority, I find that the evidence falls
short of showing that the alleged discriminatee, Stephen
Shanahan, was threatened or discharged because of his
protected union activity.
Shanahan responded to an employment advertisement
which indicated that the position would require travel.
He was hired by the Respondent on January 6, and was
put to work on a local job at Entenmann’s Bakery. He
worked for 2 days. He was laid off when most of Re-
spondent’s work shifted to Albany on January 9. He had
told the Respondent that he would not travel and thus
would not go there.
On Monday, January 13, Shanahan called Charles
Zeppelin, William Zeppelin’s brother and Shanahan’s
supervisor, to see if there was work. (I shall hereafter
refer to “Charles” and “William”.) The Respondent had
again started working at the Entenmann’s Bakery jobsite

10 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
where Shanahan had worked the previous week. Charles
told him that he could work there on Friday, the 17th.
He did so. According to William’s credited testimony,
Shanahan was brought back to work on the Entenmann
job because of a shortage of help, even though William
had already decided not to keep Shanahan as a permanent
employee because of his refusal to travel.
My colleagues say that William told Shanahan only
that he could not work in Albany because he would not
travel. It would seem obvious that, since Shanahan
would not travel, he could not work in Albany. Thus,
there would be no need to make such a limited statement.
In any event, irrespective of what was said in this con-
versation, the judge found that William had in fact de-
cided not to hire Shanahan as a permanent employee
because of his refusal to travel. There are no exceptions
to this finding.
As noted, however, Shanahan was permitted to work
on a temporary basis on January 17. When Shanahan
began work on the 17th, he gave Charles, a copy of a
letter to the Respondent from the Union. The letter
stated, inter alia, that Shanahan intended to organize Re-
spondent’s employees. Charles asked if this was a joke.
The Union had also faxed William a copy of the letter.
William then called Charles and told him not to do any-
thing, except that Shanahan should not engage in union
activity during working time. William also immediately
called the union agent and arranged a meeting with him
for the following week.
A little later that morning, there were conversations
between Charles and Shanahan. The majority opinion
sets forth two versions of those conversations, i.e., the
version of Charles and that of Shanahan. The judge did
not resolve this credibility conflict, except to find that
Charles told Shanahan that he would kill Shanahan if
anything happened to his brother. After that exchange,
Charles told Shanahan to leave the jobsite.
There is an issue as to whether Charles’ threat to kill
was related to Shanahan’s union activity. The judge
found that it was not so related. Rather, the judge found
that the threat was related to Charles’ belief that
Shanahan was trying to disrupt the job.
My colleagues say that, absent a credibility resolution
concerning the conversations between Charles and Sha-
nahan, the judge had no basis for making the above
finding. However, the judge’s finding has an independ-
ent basis. That is, the fact (not challenged by my col-
leagues) is that Shanahan was not performing his work
and was refusing to wear the required head gear. Even if
this misconduct would not establish that Shanahan in-
tended to disrupt the job, the misconduct would at least
establish that Charles reasonably feared such disruption.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456
The judge found this to be so, and there is no basis for
reversing this factfinding.1
My colleague’s conclude that Shanahan’s version
would support finding a violation. I disagree. Under
Shanahan’s version, Charles asked him what work he
had performed. Rather than giving a respectful and re-
sponsive answer, Shanahan contumaciously responded
that Zeppelin’s employees did not know what they were
doing. Employers, in my view, are not required to toler-
ate such a flippant and disrespectful response to a rea-
sonable, job related question.2
In addition, absent the crediting of the General Coun-
sel’s witnesses, there is no evidence of animus. In argu-
ing for a finding of animus, my colleagues point to: (1)
Charles’ question to Shanahan of whether he was kidding
about his union activity; (2) Shanahan’s statement to
Charles that he would make Charles join the union; (3)
the argument between Charles and Shanahan. Clearly,
the first two do not establish animus on Respondent’s
part. And, as discussed above, the conversation, without
credibility resolution, also does not do so.
Based on the above, the General Counsel has not es-
tablished a prima facie case. Further, even if he did so,
Respondent has clearly rebutted it. Thus the Respondent,
before the verbal altercation, had decided not to retain
Shanahan. He was hired briefly, for a short-term local
job, because of an urgent need for an employee on that
job. And, as noted, he refused to do his work on that job,
and did not wear required head gear.
My colleagues say that the refusal to work and the re-
fusal to wear the required head gear could not have been
a basis for discharge. I disagree. Even if the Respondent
would tolerate that conduct by a permanent employee, it
would surely not tolerate that conduct by a person whom
Respondent had decided not to retain as a permanent
employee. Many employers, and I think most, will be
more tolerant of a breach of discipline by an employee
who is a “keeper” than by one whom the employer will
not retain in any event.
In sum, even if antiunion animus was a reason for the
discharge, Shanahan would have been terminated for
lawful reasons.

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

1 My colleagues say that the judge based his finding on Shanahan’s
status as a salt. In fact, the finding is based on Shanahan’s conduct.
2 As noted above, I have set forth Shanahan’s version of the conver-
sation in order to show that it does not support a violation. Contrary to
the suggestion of my colleagues, I am not contending that Shanahan’s
version was the reason for his discharge.
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT threaten to kill employees if they engage
in union activities.
WE WILL NOT discharge employees for engaging in un-
ion activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer employee Stephen Shanahan full reinstate-
ment to his former position or, if that position no longer
exists, to substantially equivalent position without preju-
dice to his seniority and other rights and privileges.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis-
charge of Stephen Shanahan, and notify him in writing
that this has been done and that evidence of his unlawful
discipline will not be used as a basis for personnel action
him.

ZEPPELIN ELECTRIC COMPANY, INC.

David Pollack, Esq., for the General Counsel.
John J. Leo, Esq., for the Respondent.
Kevin Barry, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried before me in Brooklyn, New York, on July 24, 1997.
The charge and amended charge were filed on January 24, and
April 30, 1997. The complaint was issued on May 9, 1997, and
alleged as follows:
1. That on or about January 17, 1997, the Respondent by
Charles Zeppelin, its foreman and agent, threatened employees
with bodily injury if they supported, or assisted the Union or if
they solicited other employees to become union members.
2. That on or about January 17, 1997, the Respondent, for
discriminatory reasons, discharged its employee Stephen Sha-
nahan.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE ALLEGED VIOLATIONS
The Company is a very small electrical contractor which
employs, at any given time, between two to five employees.
The owner and president is William Zeppelin. His brother,
ZEPPELIN ELECTRIC CO. 457
Charles Zeppelin, works as a foreman and his son, William
Zeppelin Jr., also works at various jobsites.
It is a nonunion contractor and does business throughout the
State. In January 1997, it put an advertisement in Newsday,
looking for an electrician. The ad indicted that the successful
applicant should be willing to travel.
Stephen Shanahan is affiliated with Local Union No. 25,
IBEW. For the past several years, he has made his living as a
union “salt.” This has meant that he has gone to work for vari-
ous nonunion contractors and has gotten fired from several of
them. Descriptions of the IBEW’s salting program can be
found in some of my earlier decisions such as Sullivan Electric
Inc., JD–(NY)-04-95; Consolidated Electrical Service Inc., JD–
(NY)–11–95; Belfance Electric Inc., 319 NLRB 945 (1995);
Ippli, Inc., 321 NLRB 463 (1996); Germinsky Electrical Co.,
JD–(NY)–19–97; and M. J. Mechanical Services, Inc., JD–
(NY)–71–95 [324 NLRB 812 (1997)].1
William and Charles Zeppelin interviewed people who re-
sponded to the advertisement. Shanahan was interviewed by
Charles Zeppelin on January 6 and he was hired to begin on
January 7. He began work at Entemann’s Bakery, where every-
one was required to wear both hairnets and hardhats. Shanahan
worked on Tuesday and Wednesday but on Wednesday, Janu-
ary 8, he was told that the Company was going to be doing a
job up in Albany. As Shanahan said that he couldn’t go, he did
not work for the remainder of the week. As a result, William
Zeppelin told Shanahan that if he couldn’t travel, then he could
not work for the Company. Although this is denied by Shana-
han, I do not believe him.2
Shanahan testified that during the 2 days that he worked for
the Company, on January 7 and 8, he did not talk to any of the
other employees about the Union. Until the morning of January
17, there is no reason to believe that anyone from the Company
knew that Shanahan intended to engage in any type of union
activity.
From January 9 until 12, the Company’s work force was up
in Albany. (They went in company vans and their meals and
board were paid for by the employer.)
According to Shanahan, when he didn’t hear from the Com-
pany on Sunday, he called and spoke to Charles Zeppelin on
Monday, January 13. Shanahan claims that he was told that the
Company was still working in Albany, whereupon he stated
that although he would love to work there, he couldn’t. Ac-
cording to Shanahan, Zeppelin told him that the Company was
going to resume work at Entemann’s on Friday and asked if he
could work then.
The evidence shows, however, that the Company finished its
work in Albany and that the crew returned to New York on
Sunday, January 12. They worked at Entemann’s Bakery start-
ing on Monday, January 13. Two new people were hired to
work as electricians after Shanahan had informed the Company,
on January 8, that he was unable to travel to Albany.
Before going to the jobsite on Friday, Shanahan visited the
Union’s office and met with Kevin Barry. He was given a let-
ter for presentation to Charles Zeppelin and told that a copy of
the letter would be faxed to the Company. This letter read:

1 The last case involved a different union in the construction industry
that adopted the IBEW’s salting program.
2 I do not credit Shanahan’s assertion that during his initial job inter-
view, he told Charles Zepellin that he could not go to Albany that week
and that he was told that this was okay.

Please be advised that one of your employees, Stephen
Shanahan, will be trying to organize the men in your shop
into the IBEW on his off hours on behalf of Local 25, In-
ternational Brotherhood of Electrical Workers.
I caution you not to discriminate against Mr. Shanahan
or any other employees who may be sympathetic to Local
25, IBEW.

The letter described above was received by William Zeppe-
lin at his office at 8:55 a.m. He testified that he immediately
telephoned his brother at the jobsite and read him the letter. He
told Charles not to do anything except that Shanahan should not
engage in union activity during working time. (He states he
said this based on the contents of the Union’s letter which he
assumed correctly defined the parameters of what an employee
could legally do on the job in terms of union activity.) Accord-
ing to William Zeppelin, he immediately called Union Agent
Barry, and arranged for a meeting with him for the following
week. (Barry did not testify in this proceeding.)
As far as Shanahan is concerned, William Zeppelin testified
that he already had decided the week before not to retain Sha-
nahan as a permanent employee because of his refusal to travel.
He states that he only brought Shanahan back to work at the
Entemann’s site because he was short of men for that particular
week. Zeppelin testified that he had no intention of using Sha-
nahan thereafter.
The more dramatic events happened at the jobsite on January
17 and William Zeppelin was not involved in them. He learned
of what happened after he visited the jobsite that morning and
found that no one was there.
According to Shanahan, he handed Charles Zeppelin the
aforementioned letter at about 9 a.m.3 He stated that after read-
ing the letter, Zeppelin asked if this was “some kind of fucking
joke.” According to Shanahan, he responded that it was not a
joke; that Zeppelin stared at him and that he went back on the
roof to resume his work. Shanahan testified that about 20 min-
utes later, Charles Zeppelin came onto the roof and after telling
the two other workers to go with him, yelled; “I love my
brother and if anything happened to him, I will fucking kill
you.” According to Shanahan, Zeppelin was swinging an alu-
minum pipe. He states that when he asked Zeppelin, (who is a
very large man), to take it easy, Zeppelin asked him what work
he had done all morning. At this point, Shanahan claims that
he pointed to some bent pipe and said that the two new work-
ers didn’t know what they were doing and that if the company
hired Local 25 members it would get competent workmen.
According to Shanahan, Zeppelin said; “[T]ake you and you’re
union shit and get out of here.” Shanahan then left and went to
the police station. Although there was some kind of complaint
filed, no action was taken by the police.
Charles Zeppelin gave a somewhat different version of what
happened. He testified that he assigned Shanahan to work on
the roof and that at about 9 a.m. Shanahan came down and
handed him the letter. He also testified that he noticed that
3 Charles Zeppelin ordinarily is assigned to be the foreman of the
crew. Although he is a working foreman, it seems to me that the record
establishes that he responsibly directs the work of others. As he is also
the brother of the owner, there is no doubt in my mind that he is viewed
by the employees as having managerial or supervisory authority. Ac-
cordingly, I conclude that he is a supervisor as defined in Sec. 2(11) of
the Act or an agent as defined in Sec. 2(13) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 458
Shanahan was wearing a Local 25 hat and was not wearing
either the required hair net or the required hardhat. According
to Charles Zeppelin, he asked Shanahan if he was kidding and
was told no. Charles states that he got a phone call from his
brother who told him about the letter and who said that he was
going to talk to someone from the Union. According to Char-
les, his brother told him to send another employee, Mike, to the
office because he was late again for work.
Charles Zeppelin testified that he went looking for Mike and
couldn’t find him. After looking, Charles found out that
Shanahan was not working but was talking to Mike about the
Union. Charles testified that at this point, he sent Shanahan
dowstairs to get a hacksaw to cut some pipe, whereupon
Shanahan left, returned and said he couldn’t find one. Charles
states that Shanahan asked him to join the Union and he re-
sponded negatively. According to Charles, Shanahan said
something like, “[W]e have ways of making you join.” When
Charles noticed that Shanahan was not doing any of the work
assigned to him, he approached Shanahan and claims that he
said; “If anything happens to my brother I’m holding you per-
sonally responsible.” Charles states that Shanahan gave him
the finger and he told Shanahan, “[H]ow would you like it if
you’re family was messed with.” According to Charles,
Shanahan asked if he was being threatened and said that he was
going to the police to get a protective order. Charles told
Shanahan to leave and Shanahan asked if he was being fired.
According to Charles, he told Shanahan that as he was not the
boss, he couldn’t fire him, and that he would have to talk to the
boss (his brother). According to Charles, Shanahan’s parting
words were; “All you guys in the crew are fucking assholes.”
There were no witnesses who were close enough to hear
what Charles Zeppelin and Shanahan said to each other. The
gist of the story as far as Shanahan’s version is concerned, is
that after handing Charles the letter, Charles became irate and
after making a threat, fired him. On the other hand, the gist of
Charles’ testimony is that after being shown the letter, he be-
came aware, as the morning progressed, that Shanahan was not
doing his work, was talking to other employees about the Union
on working time, and that he was not following proper proce-
dures by not wearing a hairnet and hardhat. As such, his state-
ment to Shanahan to the effect that he either was going “to kill
him,” or hold him “personally responsible,” would, if Charles
version is credited, have been motivated not because of any
legitimate union activity by Shanahan, but by his reasonable
conclusion that Shanahan was engaged in sabotage in an effort
to undermine the Respondent’s contract with Entemann’s.
Based on the facts presented in this case and on my consid-
eration of demeanor, it is my opinion that Shanahan never in-
tended to become a permanent employee of the Company and
was intent on provoking the employer into discharging him.
Thus, at the very outset of his employment and despite being
hired with the understanding that he would be willing to travel,
Shanahan refused to go with the crew to Albany. Although
being called back to finish some work at Entemann’s on Janu-
ary 17, it is my opinion that Shanahan was looking for a way to
be fired and ultimately accomplished that result.4 Thus, he did
not do the work assigned to him and presented himself to
Charles, the foreman, without a hairnet or hardhat as required.
In my opinion, Charles probably did say that he would “kill”
Shanahan if anything happened to his brother. But, it is my
conclusion that this threat was intended, not because of Shana-
han’s union or protected concerted activity, but because Charles
had good reason to believe that Shanahan was trying to sabo-
tage the job and undermine the employer’s relationship with
Entemann’s. Although it may be said that Charles may have
committed a tort or some other state violation by making a
threat of bodily harm, I do not conclude that the Respondent
has violated the Act either by discharging Shanahan or by
threatening employees because of their union or protected con-
certed activity.
CONCLUSION OF LAW
The Respondent has not violated the Act in any other manner
alleged in the compliant.
[Recommended Order for dismissal omitted from publica-
tion.]

4 This is not unlike some of the factual patterns in Sullivan Electric,
supra, and M. J. Mechanical Services, supra.