348 NLRB 963
Bay Harbour Electric, Inc.
BAY HARBOR ELECTRIC
348 NLRB No. 59
963
Bay Harbour Electric, Inc. and Chris Watkins and
International Brotherhood of Electrical Work-
ers, Local No. 306, AFL–CIO. Cases 6–CA–
32166, 6–CA–32167, 6–CA–32343, and 6–CA–
32434
September 30, 2006
ORDER REMANDING PROCEEDING TO
ADMINISTRATIVE LAW JUDGE
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On November 25, 2002, Administrative Law Judge
David L. Evans issued his decision in this proceeding.
The Respondent, the General Counsel, and the Charging
Party Union filed exceptions, supporting briefs, and an-
swering briefs, and the Respondent and the General
Counsel filed reply briefs.
On September 29, 2006, the Board issued its decisions
in Oakwood Healthcare, Inc., 348 NLRB 686 (2006),
Croft Metals, Inc., 348 NLRB 717 (206), and Golden
Crest Healthcare Center, 348 NLRB 727 (2006), in light
of the Supreme Court’s decision in NLRB v. Kentucky
River Community Care, 532 U.S. 706 (2001). Oakwood
Healthcare, Golden Crest, and Croft Metals specifically
address the meaning of “assign,” “responsibly to direct,”
and “independent judgment,” as those terms are used in
Section 2(11) of the Act.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has decided to remand this case to the judge
for further consideration in light of Oakwood Healthcare,
Golden Crest, and Croft Metals, including allowing the
parties to file briefs on the issue and, if warranted, re-
opening the record to obtain evidence relevant to decid-
ing the case under the Oakwood Healthcare, Golden
Crest, and Croft Metals framework.
IT IS ORDERED that this proceeding is remanded to the
administrative law judge1 for appropriate action as noted
above.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare a supplemental decision setting forth
credibility resolutions, findings of fact, conclusions of
law, and a recommended Order, as appropriate on re-
mand.
1 Judge Evans has retired from the Agency. Accordingly, the chief
administrative law judge is requested to ascertain the availability of
Judge Evans. In the event Judge Evans is not available, the case is
remanded to the chief administrative law judge, who may designate
another administrative law judge in accordance with Sec. 102.36 of the
Board’s Rules and Regulations.
Copies of the supplemental decision shall be served on
all parties, after which the provisions of Section 102.46
of the Board’s Rules and Regulations shall be applicable.
Barton A. Myers, Esq., for the General Counsel.
Kurt A. Powell and Keith Coates Jr., Esqs., of Atlanta, Georgia,
for the Respondent.
Bryan O’Connor, Esq., of Cleveland, Ohio, for the Charging
Party, Local No. 306.
DECISION
I. STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case un-
der the National Labor Relations Act (the Act) was tried before
me in Cleveland, Ohio, on May 7–10 and May 29–30, 2002.
On May 2, 2001, Chris Watkins, an individual, filed with the
National Labor Relations Board (the Board) the charge in Case
6–CA–32166 against Bay Harbour Electric, Inc. (the Respon-
dent). On May 2, October 5, and November 30, 2001, Interna-
tional Brotherhood of Electrical Workers, Local No. 306, AFL–
CIO (the Union), filed charges against the Respondent in Cases
6–CA–32167, 6–CA–32343, and 6–CA–32434, respectively.
Each such charge alleged that the Respondent has engaged in
unfair labor practices as set forth in the Act. Upon an investi-
gation of those charges, the General Counsel issued a complaint
alleging that the Respondent had violated Section 8(a)(1) of the
Act by threatening employees with denial or loss of employ-
ment because they had engaged in activities on behalf of the
Union and that the Respondent had violated Section 8(a)(3) of
the Act by refusing to hire, and by refusing to consider for hire,
nine employee-applicants because they were members of the
Union.
The Respondent duly filed an answer admitting that
this matter is properly before the Board but denying the com-
mission of any unfair labor practices.
Upon the testimony and exhibits entered at trial,1 and after
consideration of the briefs that have been filed, I make the fol-
lowing findings of fact and conclusions of law.
II. JURISDICTION AND LABOR ORGANIZATION’S STATUS
As it admits, at all material times, the Respondent has been a
Pennsylvania corporation with an office and place of business
in Erie, Pennsylvania (the Respondent’s Erie facility), where it
has been engaged in the building and construction industry as
an electrical contractor. During the 12-month period preceding
the issuance of the complaint, the Respondent, in conducting
those business operations, performed services valued in excess
of $50,000 outside Pennsylvania. Therefore, at all material
times the Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
1 Certain passages of the transcript have been electronically repro-
duced; some corrections to punctuation have been entered. Where I
quote a witness who restarts an answer, and that restarting is meaning-
less, I sometimes eliminate words that have become extraneous; e.g.,
“Doe said, I mean, he asked . . .” becomes “Doe asked . . . .” When
quoting exhibits, I have retained irregular capitalization, but I have
corrected certain meaningless grammatical errors rather than use
“[sic].” All bracketed entries have been made by me.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
964
Act. As the Respondent further admits, the Union is a labor
organization within Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Contentions
The Respondent employs electricians (sometimes called field
employees), none of whom is represented by a labor organiza-
tion. A passage in the Respondent’s handbook states: “We
believe that labor unions have no place at BHE.” The hand-
book adds: “Our Company will use all lawful means at its dis-
posal to strongly resist any labor union that tries to intrude into
the relationship between our Management and our employees.”
The Respondent’s only office is in Erie, but in 2000 it began
operations in Ohio. In late October and early November, the
Respondent placed several advertisements in Ohio newspapers
for “supervisor/foreman” (and “supervisors/foremen”) and
apprentices. From November 3 through January 18 (the No-
vember-to-January period), the Respondent hired 11 individuals
as foremen, none of whom was a member of a labor organiza-
tion. Nine members of the Union applied for employment with
the Respondent during that period; the Respondent hired none
of them, and each is named as an alleged discriminatee in the
complaint. Specifically, the complaint alleges that, in violation
of Section 8(a)(3):
11. Since about October 2000, Respondent has re-
fused to hire or consider for hire job applicants: Richard
Aikey, Robert Beltz, Michael Kammer, Paul Stefano, Aldo
Tersigni, Robert Sallaz, Bently Hudson, James Beltz and
Stephen Stock, at a time when Respondent had openings
available and filled positions for which said applicants
were qualified, and since said date, has failed and refused
to employ said applicants.
12. Since about May 2001, Respondent has refused to
hire or consider for hire job applicants Bentley Hudson
and Stephen Stock (who renewed their applications at that
time), at a time when Respondent had openings available
and filled positions for which said applicants were quali-
fied, and since said date has failed and refused to employ
said applicants.
As well as being union members, all nine alleged discrimina-
tees are members of its organizing committee, and they applied
for employment with the intent of assisting the Union in its
efforts to organize the Respondent’s work force. That is, each
union applicant was a salt, and this is a salting case.2 As evi-
dence of unlawful motivation, or animus, against the salts’
union affiliations which caused the Respondent not to hire
them, or to consider them for hire, the General Counsel relies
upon the above-quoted language of the Respondent’s employee
handbook, and the General Counsel relies upon several alleged
2 As stated by the Board in Aztech Electric Co., 335 NLRB 260 fn. 4
(2001): “‘Salting a job’ is the act of a trade union in sending a union
member or members to an unorganized jobsite to obtain employment
and then organize the employees. A ‘salted’ member or ‘salt’ is a
union member who obtains employment with an unorganized employer
at the behest of his or her union so as to advance the union’s interests
there.”
statements by the Respondent’s managers, which statements
allegedly violated Section 8(a)(1).
The Respondent denies that the alleged 8(a)(1) incidents oc-
curred, and it denies that its handbook’s statements and its
managers’ alleged statements are evidence of unlawful animus.
The Respondent admits that it refused to consider for employ-
ment any of the alleged discriminatees because of their union
statuses. It contends, however, that the alleged discriminatees
only applied for its open foremen’s positions, that those posi-
tions were those of supervisors under Section 2(11) of the Act,
and that its refusals to hire or consider the alleged discrimina-
tees was therefore not unlawful.3 The Respondent further con-
tends that the 11 individuals whom it did hire during the No-
vember-to-January period became, or were intended to become,
supervisors within the meaning of Section 2(11) of the Act.
The General Counsel contends that the foremen’s positions
which the Respondent advertised as open were not actually
those of statutory supervisors and that the Respondent’s conten-
tion is nothing more than a subterfuge employed to avoid hiring
the alleged discriminatees, or any other union members, as
journeymen.
Section 8(a)(3) prohibits discrimination against employees
who seek employment as employees.4 The Act does not, how-
ever, protect those applying for employment as a supervisor
under Section 2(11).5 Such titles as “foreman” notwithstand-
ing, the issue is whether the positions applied for are those of
employees or supervisors. Section 2(11) of the Act defines
“supervisor” as: . . . any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, re-
call, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in con-
nection with the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the use of
independent judgment.
Moreover, it is well established that, because Section 2(11) is
written in the disjunctive, the possession of only one of the
indicia is sufficient to confer supervisory status on an individ-
ual.6
The General Counsel concedes that an employer’s failure to
hire an applicant for a supervisory position because of that
applicant’s union membership or sympathies does not violate
the Act. The General Counsel, however, contends that, al-
though Respondent did classify the 11 individuals whom it did
hire as “foremen,” those individuals were not actually supervi-
sors within the meaning of Section 2(11). The General Counsel
therefore seeks the conclusion that the Respondent’s preference
3 At Tr. p. 597, the Respondent’s counsel stated: “We have stated,
and will state, that the reason that we denied those union applicants for
those supervisory positions was because of their union status.”
4 Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185 (1941).
5 Pacific American Ship Owners Assn., 98 NLRB 582 (1952); Ace
Machine Co., 249 NLRB 623 (1980). Of course, an employer’s refusal
to promote an already-hired employee to a supervisory position because
of his or her union membership or past protected activities is an entirely
different matter.
6 Opelika Foundry, 281 NLRB 897, 899 (1986); Allen Services Co.,
314 NLRB 1060, 1061 (1994).
BAY HARBOUR ELECTRIC
965
for 9 of the 11 nonunion individuals whom it did consider and
hire as foremen during the November-to-January period, over
the 9 alleged discriminatees, violated Section 8(a)(3). (And, as
previously noted, the complaint alleges that the Respondent
further violated the law when Stock and Hudson later made re-
applications.)
The Respondent’s field operations are conducted on con-
struction-site jobs that are overseen by its project managers.
Project managers, who may have responsibilities for several
different jobs, visit the jobs with an indeterminate frequency.
(None of the project managers testified.) On each job there is
one foreman-in-charge (or “main foreman” or the foreman who
“runs the job”). Also on the Respondent’s jobs are sometimes
individuals whom the Respondent classifies as foremen but
who are not the foremen-in-charge. The subordinate foremen
(as I shall call them) are sometimes responsible for crews work-
ing in separate areas of a job, and the Respondent contends that,
when they are, they have all of the authorities of the foremen-
in-charge. And other individuals on a job may be classified as
foremen, but they are not responsible for anyone but them-
selves. The Respondent contends, however, that all of those
whom it classifies as foremen are actual, or at least potential,
supervisors under Section 2(11). All foremen, whether fore-
men-in-charge or otherwise, are “working foremen”; that is,
they work for 6 or 7 hours a day with their tools. When acting
as a foreman-in-charge, a foreman receives a 5-percent pre-
mium above his regular hourly rate. Other foremen on a job
receive no premium for their status.
The Respondent’s president is Jeff Anthony. For about 8
years, the Respondent’s director of human resources has been
Sherry (Brink) Savoia. For several years ending in March
2001, Tim Delon was the Respondent’s “director of education
and corporate recruiter.” Until Delon’s departure, Savoia and
Delon shared the interviewing and hiring responsibilities for the
Respondent. Thereafter, Savoia handled the duty alone. (Sa-
voia testified; Anthony and Delon did not.)
B. Evidence Presented by the General Counsel
1. Evidence of coercive statements
Watkins’ Testimony. On November 7, 2000,7 Charging Party
Watkins (who is not an alleged discriminatee) applied for em-
ployment with the Respondent. On his application, in the space
for “Position applying for,” Watkins wrote “Journeyman Elec-
trician.”
On December 29, Delon hired Watkins, but as an
apprentice rather than a journeyman. Watkins testified that,
also on December 29, Delon conducted an employee orienta-
tion meeting.
(Two other new-hires were also present, but
Watkins did not know their names.) According to Watkins, as
well as discussing with the new-hires topics such as wages,
Delon, “stated that Bay Harbour was a nonunion company and
always would be a nonunion company. If anybody was a salt,
organizer, or otherwise affiliated with the Union, they would
find out about it and deal with it at that time.” Based on this
testimony by Watkins, the complaint alleges that the Respon-
dent, by Delon, in violation of Section 8(a)(1): “informed em-
7 Unless otherwise indicated, all dates mentioned below are from
July 1, 2000 until June 30, 2001.
ployees that Respondent would always be nonunion and threat-
ened unspecified reprisals against any employee who engaged
in union activity.”
Watkins further testified that on March 20, he attended an
employees’ orientation meeting that Savoia conducted. Wat-
kins testified that during this meeting:
[Savoia] told us that it was a nonunion company. And that
they would do anything within the law to remain a nonunion
company. And they showed a movie, “Little Card, Big Trou-
ble.” . . . [The movie] basically was telling you that if you
signed a union card for representation that it would end up be-
ing nothing but trouble for you and the Company.
The General Counsel contends that Savoia’s statements, and
the showing of the video, constitute evidence of unlawful ani-
mus, but the complaint does not allege that either the statements
or the showing independently violated Section 8(a)(1). Savoia
testified for the Respondent. (In fact, she was the Respondent’s
principal witness.)
Savoia admitted that during orientation
sessions she told new employees that “the Company feels it’s in
the best interest of the Company and the employees to remain
nonunion, and we will do anything in our legal power to remain
a nonunion company.” (The Respondent discharged Watkins
on April 9, but that discharge is not alleged to be a violation of
the Act.)
Albano’s testimony. Vincent Albano, a journeyman electri-
cian and a longtime union member, has never been employed
by the Respondent, and he is not an alleged discriminatee in
this case. Albano did, however, attempt to secure employment
with the Respondent, and the General Counsel introduced his
testimony about that attempt in support of certain 8(a)(1) alle-
gations of the complaint.
John Chisholm, who did not testify, was a project manager at
the time of Albano’s attempt to secure employment with the
Respondent, and he remained in the Respondent’s employment
as a project manager at time of trial.8
Albano testified that,
beginning in December, he approached Chisholm several times
to ask for employment with the Respondent. All of these ap-
proaches were made at the Erie Civic Center’s Tulio Ice Arena
(the Erie Ice Arena) where he and Chisholm regularly (but
separately) attended hockey games. The complaint alleges that
on two of those occasions, in violation of Section 8(a)(1), Chis-
holm threatened Albano that he would not be hired by the Re-
spondent because of his union membership.
Albano testified that he first spoke to Chisholm about em-
ployment with the Respondent on December 16. Albano testi-
fied that Chisholm then
. . . said that they were busy at the time and . . . he said, “Well,
if you went down to apply for a job, I don’t think they’d hire
you because you’re a union electrician.” But he did say, “I
will put a good word in for you, and if you can call this guy,
Tim Delon; maybe he can help you out.”
8 The complaint alleges, and the Respondent admits, that Chisholm
was its supervisor “[a]t all material times.” Moreover, Robert Ockuly,
whom the Respondent contends is a supervisor, and whom the Respon-
dent called as its witness, testified that Chisholm “is” one of the Re-
spondent’s project managers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
966
Albano further testified that Delon added that Jeff Anthony,
the Respondent’s president, “don’t like to hire union electri-
cians.” Based on this testimony by Albano, the complaint al-
leges that the Respondent, by Delon, in violation of Section
8(a)(1), “informed a job applicant that Respondent preferred
not to hire applicants who are union affiliated.”
On December 18, Albano called Delon who told Albano to
bring his resume to the Respondent’s Erie office, which Albano
did on the same day (without speaking to Delon). On January
30, Delon called Albano to come in to take some tests. On
January 31, after Albano had completed part of a written test,
Delon and Savoia came into the room. Further according to
Albano:
And then they sat down across the table from me, and Sherry
asked me why I wanted to work for Bay Harbour, and I says I
needed a job. . . . And she says, “Well, when the union guys
come here, they take our men away from us.” And I told her I
wasn’t here to cause any problems; I just needed a job. . . .
Tim told me to come in the next day and finish the test.
Based on this testimony by Albano, the complaint alleges that
the Respondent, in violation of Section 8(a)(1), by Savoia and
Delon, “informed employees that the Respondent was opposed
to hiring union-affiliated employees.”
On February 1, Albano returned to finish the written test, and
on February 2, he completed a “hands-on” test which Joe Sulli-
van, the Respondent’s “Safety Compliance Officer,” reviewed.9
Albano testified that Sullivan “said I did good, and he said that
. . . he thought they were going to hire me, and he said that they
would [notify] me that evening by telephone.” Further accord-
ing to Albano, during the weekend of February 2–3, Delon told
him that he would hear from the Respondent shortly that he
had, in fact, been hired. Hearing nothing by mid-February,
however, Albano called Delon. Delon then told him: “Your
test wasn’t no good, and we don’t need any journeyman at this
time. You applied for a foreman’s job and your scores weren’t
good enough.”
Albano testified that he made no further at-
tempts to call Delon.
Joseph Dobrich is a residential electrical contractor in Erie.
Albano testified that on April 24 he met Dobrich at a restaurant
in Erie and asked Dobrich to help him get work with the Re-
spondent. Dobrich agreed to call Anthony on Dobrich’s cell
phone. After dialing and getting Anthony on the phone, Do-
brich held the receiver away from his head so that Albano could
hear both sides of the conversation. According to Albano:
Joe said, “I have a friend of mine sitting here. His name is
Vinnie Albano. He’s looking for work. He had seeked em-
ployment at your place earlier but he didn’t get hired. He’s
[a] union electrician.” And I heard Anthony say in reply to
him, “I don’t want any ties with this guy. If you want to hire
him, hire him; you hire him and we’ll sub him out through
you. I don’t want any direct ties with this guy. . . . And Joe
9 Sullivan, who did not testify, is not alleged by the complaint to be a
supervisor. The Respondent, however, did not object to the General
Counsel’s testimony about his conduct and, on brief, the Respondent
acknowledges that Sullivan was one of the “Bay Harbour management
employees.”
says, “Well, what should I do?” And he [Anthony] says,
“Call Sherry [Savoia] and work it out with her. . . . I don’t
want any ties with this guy because he’s a union electrician.”
Based on this testimony by Albano, the complaint alleges that
the Respondent, by Anthony, in violation of Section 8(a)(1),
“by telephone, told employees [that] Respondent would not
directly employ applicants who are affiliated with the Union.”
(Dobrich did not testify.)
Albano further testified that on April 25, he again met with
Chisholm. According to Albano, Chisholm said that “they
won’t hire me because I’m a union electrician, directly to Bay
Harbour.” Based on that testimony by Albano, the complaint
alleges that the Respondent, by Chisholm, in violation of Sec-
tion 8(a)(1), “informed a job applicant he had not been hired
because he was affiliated with the Union.”
Albano further testified that: “Joe Dobrich had called me in
the middle of May and told me that he had set something up
with Bay Harbour and himself. They were going to sub me out
to them, and if I wanted to work I could start at the Uruguay
High School [project] the next day.” Albano did begin working
at the Uruguay High School project the next day. Albano testi-
fied that there were other electricians on the project, all of
whom were employed by the Respondent. He and the other
electricians reported to the Respondent’s Foreman Ron Eaton.
On June 5 or 6, Albano wore a union T-shirt to the project for
the first time. On June 8, a payday, Albano went to Dobrich to
collect his check. Dobrich told Albano that Savoia had just
called him and told him to discharge Albano, which Dobrich
then did.
On cross-examination, Albano admitted that he was applying
for “a foreman’s position” when he spoke to Delon. Albano
further admitted that one Ron Sciarrilli was present at each
meeting between himself and Chisholm at the Erie Ice Arena.
(Although the Respondent did not call Chisholm to testify, it
did call Sciarrilli, as discussed infra.)
Other testimony of coercive statements. As discussed below,
during one employment interview Delon told alleged discrimi-
natee Stock that he would not be hired because he was a union
organizer, and in another interview Delon told prospective
foreman Milton Zill that he would be hired but he would not be
allowed to organize employees. The complaint alleges both
these remarks violated Section 8(a)(1). The Respondent does
not dispute that Delon made the remarks; it contends, however,
that Delon’s remarks did not violate the Act because Delon was
interviewing Stock and Zill only for supervisory positions.
2. Evidence of discrimination
a. Testimony of the alleged discriminatees
All nine of the alleged discriminatees were called as wit-
nesses by the General Counsel: (1) Stock has been a full-time,
paid organizer for the Union since July 1998. Before he be-
came an organizer for the Union, he worked in the building and
construction industry as a journeyman electrician doing com-
mercial and industrial work. Between July 1998 and time of
trial, Stock was not employed as an electrician in any capacity.
Stock identified an advertisement in the October 22 Akron Bea-
BAY HARBOUR ELECTRIC
967
con Journal that had been placed by the Respondent. The ad-
vertisement stated:
ELECTRICAL CONSTRUCTION SUPERVISOR/
FOREMAN (M–F) AND APPRENTICES
Bay Harbour Electric is rated as one of the top 200 electrical
contractors in the United States. Career opportunities exist for
supervisors/foremen (M–F) with a minimum of 3 years’ com-
mercial and/or industrial supervisory experience. . . . Applica-
tions are by appointment only. Call [toll-free telephone num-
ber, with extension]. NO WALK-INS, E-MAILS OR FAXES WILL BE
ACCEPTED. EOE.
On October 23, Stock telephoned Delon who took from Stock
the information that he had had 20 years’ experience in the
electrical industry doing commercial and industrial work.
Delon told Stock that he was then busy and could not talk more
at that time but that he would call Stock back. Delon did not
call Stock back. (Stock did not testify that he mentioned his
union status in this October telephone conversation with
Delon.)
Stock identified another advertisement that the Respondent
placed in the Akron Beacon Journal on November 5. The text
was the same as that quoted above. Stock called Delon on No-
vember 6. Delon asked Stock where he was working, and
Stock replied, “out of Local Union 306.” Delon asked Stock to
fax his resume to the Respondent. On November 7, Stock
faxed to the Respondent a 1-page resume that first stated:
“OBJECTIVE.
Seeking full time employment as an Electri-
cian/foreman with a reputable merit shop electrical contracting
company.” (Stock testified that “merit shop” is a term that
contractors in the industry use to indicate that they are nonun-
ion; this testimony was not disputed.) The body of the resume
listed Stock’s work experience from “1998 through present” as
“Organizer, IBEW, Local Union #306.” Stock got no response.
On December 1, after seeing a third newspaper advertise-
ment by the Respondent for “supervisors/foremen,” Stock again
called Delon. According to Stock:
When I asked him about my resume and if I could
make an application to Bay Harbour Electric, he pro-
ceeded to tell me that, even though my skill levels and my
years of experience would make me qualified for the job
that, because I was [a] union organizer, they would not be
able to consider me . . . that being in a supervisory position
and an organizer would be a conflict of interest, and that
they were not interested at this time. . . .
I said that I was just looking for a job as an electrician.
And he stated that they were looking for foremen . . .
and he repeated that they were just not interested at this
time.
Based on this testimony by Stock, the complaint alleges that the
Respondent, by Delon, in violation of Section 8(a)(1), “in-
formed an applicant that he would not be considered for em-
ployment because of his union membership and activity.”
Stock made no further attempts to contact the Respondent
until May 17 when he attempted to telephone Delon. A secre-
tary told Stock that Delon was no longer employed by the Re-
spondent and that he should speak to Savoia. After repeated
attempts, Stock reached Savoia on May 22. Savoia told Stock
to come for an interview the next day. On May 23, Stock ap-
peared at Savoia’s office wearing a shirt that had a prominent
display of the Union’s logo (and at which, Stock testified, Sa-
voia appeared to stare). Savoia gave Stock an application to
complete.
In the application’s space for “Position applying
for,” Stock wrote: “Electrician/Foreman.”
As previous work
experience, Stock listed several companies, going back to 1994,
for which he had worked as an “Electrician/Foreman.” For his
current employment, Stock listed the Union’s full name and
telephone number; he completed a space for “Primary Duties”
with: “Union Organizer.” Stock gave his completed application
to Savoia who said that she would “be in touch.”
On June 1, after hearing nothing from Savoia, Stock wrote
her inquiring about the status of his application “for employ-
ment as a journeyman wireman/foreman.” Savoia, by return
mail, replied:
Thank you for your application for employment with Bay
Harbour Electric, Inc. You indicated that you are seeking a
position as a foreman. After review of your application, I
have decided your qualifications do not suit our needs as a
foreman at this time.
On June 6 and 18, Stock wrote Savoia asking how he had failed
to meet the Respondent’s needs and enclosing more copies of
his resume. Also, in the June 6 letter Stock added: “I am also
willing to work for Bay Harbour Electric as a journeyman
wireman.” And in the June 18 letter, Stock added: “I am will-
ing to work for Bay Harbour in any field position. I believe my
job skills and experience would make me more than qualified
for any job opening from an apprentice to a foreman.” Savoia
did not reply to either letter.
On cross-examination, Stock acknowledged that he had ac-
tually had no supervisory experience, and he agreed that, during
the December 1 telephone conversation with Delon, Delon told
him that the Respondent did employ “working foremen,” but
“the Company viewed a foreman as being in management, and
that there was a conflict of interest being presented if you were
an organizer.” Stock further admitted that, had he been hired
by the Respondent as a foreman he would have engaged in
organizational activities, but only on nonworking time. Stock
further agreed that the other alleged discriminatees in this case
are union members whom he solicited to seek employment with
the Respondent and to assist him in organizing its employees;
Stock also acknowledged that all of the other alleged discrimi-
natees are also members of the Union’s organizing committee.
(2) Aikey testified that he answered the Respondent’s news-
paper advertisement for “supervisors/foremen” by calling
Delon on November 29. Aikey told Delon that he had 8 years
of residential electrical experience, much of it supervising.
Delon asked where Aikey had gotten his training; Aikey replied
that it had been partially with the IBEW. Delon asked Aikey to
fax his resume to the Respondent, and Aikey did so within the
week. The resume showed extensive supervisory experience in
the field; the first item that Aikey listed in a section captioned
“Experience” was the Union’s name, in boldfaced type. After
submitting the resume, Aikey made several telephone calls to
Delon to further inquire about his application, but his calls were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
968
not returned. On cross-examination, Aikey admitted that he
was applying to the Respondent for “a supervisory position
with Bay Harbour.”
(3) Kammer has been an electrician for 22 years, and he has
had some experience in the electrical industry “as foreman and
general foreman.” On November 29, Kammer went to the Re-
spondent’s web site; then he went to a link to the Respondent’s
e-mail and he sent to the Respondent a copy of his resume as an
attachment. As well as stating his supervisory experience, the
e-mail stated that Kammer’s “Experience” included “working
out of IBEW Local 306,” and his “Education” included the
Union’s apprenticeship program.10
Kammer testified that, having heard nothing from the Re-
spondent for about a week after he sent his e-mail, he called
and left the following voice-mail message: “This is Mike
Kammer, Local 306. I’m calling in response to your adver-
tisement in the Akron Beacon Journal. I e-mailed my resume,
and you can reach me at my phone number, [number given].”
Kammer got no response and, he testified, he called the Re-
spondent’s voice mail three more times during the next 2
weeks; each time he left the same message, including the refer-
ence to Local 306. Kammer got no responses from these ef-
forts either. When asked what position he had been applying
for, Kammer replied: “I believe that ad was for a supervisory
position as an electrician.”
(4) Stefano became a journeyman electrician in May 2000.
He has had no supervisory experience. On December 13, after
Stock showed him the Respondent’s newspaper advertisement
for “supervisor/foreman,” Stefano called the Respondent’s
office. He got only as far as Delon’s voice mail; he left his
name and telephone number and stated he was “looking for
work in the area” and asked for a return call. Stefano received
no response. On December 15, as Stefano further testified, he
called the Respondent’s voice mail with the same message, plus
“I informed them that I was an unemployed IBEW member,
that [I] was seeking employment in the area, and [that] I had
heard that they had work in the area.” Again, Stefano received
no response. On December 16, Stefano repeated his message
of December 15; again, he received no response.
(5) Tersigni, who has been an electrician since 1979, has had
some supervisory experience. Tersigni testified that on No-
vember 2, after he had seen the Respondent’s advertisement for
“supervisor/foreman,” he called Delon and asked if he could fill
out an application. Delon asked if Tersigni had any supervisory
experience and Tersigni replied that he had “run . . . a crew [of]
about, like eight guys.” Delon told Tersigni that the Respon-
dent was not then accepting applications. Tersigni testified
that, hearing nothing further from Delon, he called the Respon-
dent twice again during the next 2 weeks; he was routed to
Delon’s voice mail; Tersigni testified that his only message was
to identify himself as the caller; Tersigni did not testify that he
mentioned his union status. On cross-examination, Tersigni
10 Kammer testified that he sent the e-mail on November 13; how-
ever, the Respondent produced a copy of the e-mail which shows that it
was actually sent on November 29.
admitted that when he called Delon he was “trying to get [a]
supervisor position.”11
(6) Sallaz has a degree in management, and he was a super-
visor of the City of Akron’s electrical inspection department for
17 years. Sallaz testified that in November, after seeing the
Respondent’s advertisement for “supervisors/foremen,” he
decided to apply “for a supervisor’s position.” Sallaz testified
that he called the Respondent’s office and reached some un-
named person who told him to submit a resume. Sallaz did
send a resume (dated December 10) to the Respondent; in it he
lists substantial supervisory and journeyman experience, and he
states that since 1994 he has been a member of “IBEW LU
#306.” In a cover letter for the resume, Sallaz stated that he
was applying for “supervisory employment” with the Respon-
dent. Sallaz got no response.
(7) Hudson is an electrician with 34 years’ experience. In
November, after conferring with Stock and seeing the Respon-
dent’s newspaper advertisements for “supervisor/foreman,”
Hudson called the Respondent several times. Hudson testified
that he never got “a human being,” but he left voice-mail mes-
sages each time. He stated a short resume; Hudson did not
testify that in those oral resumes he listed either his union mem-
bership or any supervisory experience. Hudson got no re-
sponses from his voice-mail messages.
Hudson further testified that he saw the Respondent’s adver-
tisement again in late May. He called Savoia and told her “that
I was calling regarding the ad; I was looking for a job as a
foreman slash supervisor, [and] briefly ran across my experi-
ence.” Savoia, according to Hudson, invited him to come to the
Respondent’s office the next day to “fill out an application and
give me a personal interview.” Hudson testified to no mention
of his union membership in that telephone conversation. On
June 8, Hudson wore an IBEW T-shirt to the Respondent’s
office. Savoia gave Hudson an application which he com-
pleted.
In the “Position applying for” space, Hudson wrote
“foreman.” Hudson also listed 5 employers for whom he had
worked as a “supervisor.”
When Savoia collected Hudson’s
application, she told him that “We’re not looking for anybody
right now, but we’ll give you a call.” Savoia did not thereafter
call Hudson.
(8) Beltz has been a member of the Union since 1967. Beltz
has been steadily employed by Loomis Electrical Contractors, a
union contractor in the Akron area, since 1971. Much of Beltz’
employment with Loomis (which continued through time of
trial) was as a supervisor. Beltz testified that on November 7,
after seeing the Respondent’s newspaper advertisement for
“supervisor/foreman,” he telephoned the Respondent. A person
named Tim (apparently Delon) answered the telephone; Beltz
told Delon that he was seeking employment as a foreman.
Delon asked what Beltz’ job experience was, and Beltz told
Delon about his working for Loomis. Delon replied that he had
never heard of Loomis, but he also told Beltz to mail a resume
to the Respondent’s office in Erie; Beltz testified that he did so
11 Tersigni submitted a resume to the Respondent in April 2001, and
that resume did mention his union affiliation; however, the complaint
does not allege that the Respondent violated the Act by not hiring Ter-
signi pursuant to his submission of his April resume.
BAY HARBOUR ELECTRIC
969
on November 8. On December 20, having heard nothing from
the Respondent, Beltz telephoned “Tim” again. Beltz asked
Delon what his chances of being hired were; Delon said that he
had not received Beltz’ resume; Beltz responded to Delon that
he had, in fact, sent it; Delon told Beltz that the Respondent
was not then hiring anyway. Delon testified that he has not
since heard from the Respondent. On cross-examination, Beltz
admitted that he did not know if the Respondent received his
resume; no copy of whatever Beltz may have mailed to Delon
was offered in evidence.
(9) Beltz has worked approximately 37 years in the electrical
trade, including some experience as a supervisor. Beltz testi-
fied that in early December, at the urging of union organizer
Stock, he called the Respondent’s place of business to seek
employment. Beltz was placed through to “a gentleman named
Tim” (apparently Delon). Beltz asked Delon for an application
for employment “as an electrician.” Delon asked Beltz if he
was working at the time; Beltz replied that he was then working
for Hersh Electric Company. Delon replied that the Respon-
dent was not then accepting applications but that he would take
Beltz’ name and telephone number. Beltz further testified that,
after he had heard nothing by late January, he called the Re-
spondent again. He was placed through to Delon’s voice mail.
Beltz left a message that he had not heard from the Respondent
and that he wanted Delon to send him an application. Beltz
again left his name and telephone number. Beltz got no reply.
Beltz testified that he had not seen the Respondent’s advertise-
ment for “supervisor/foreman” but that he would have accepted
employment either as a supervisor or a journeyman. Beltz did
not testify that in either his November or January calls he ex-
pressly mentioned his union affiliation, but he did testify that
Hersh was a union contractor in Cleveland and Akron. On
cross-examination, however, Beltz agreed that he did not know
if Delon (whose office was in Erie) knew that Hersh was a
union contractor. On cross-examination, Beltz denied that he
told Delon that he was seeking work as a foreman (or supervi-
sor), and he insisted that he told Delon only that he was apply-
ing for work as “an electrician.”
Beltz’ testimony that is described in the preceding paragraph
was given on the fifth day of trial. On the third day of trial
before he rested, the General Counsel represented that Beltz
was one of his scheduled witnesses but Beltz was undergoing a
personal emergency. The General Counsel therefore requested
to be allowed to rest, subject to the later calling of Beltz out of
order. The Respondent graciously agreed. Later during the
same day of trial, I expressed extreme skepticism about the
possibility of merit to the General Counsel’s Section 8(a)(3)
cases because each of the alleged discriminatees (except Stock)
had testified that he had applied for work only as a “supervisor”
or “foreman.”
An extensive discussion then ensued which
ended with:
JUDGE EVANS: I mean you don’t have any more alleged dis-
criminatees to testify, except one. I’d be real[ly] suspicious
[if], after this colloquy, you brought him in and [he] testified
otherwise, but your other witnesses said they were applying
for supervisory positions.
Sure enough, Beltz thereafter appeared on the fifth day of
trial and testified that he had not told Delon that he was apply-
ing for the “supervisor/foreman” job that the Respondent had
advertised and that he was applying only for a job as “an elec-
trician.”
Although Delon did not appear to deny Beltz’ testimony, I
do not credit it. Stock testified that he encouraged all of the
alleged discriminatees (presumably including Beltz) to respond
to the Respondent’s advertisement for “supervisors/foremen.”
And Beltz admitted that Stock had encouraged him to apply. It
is too much to believe, and I do not believe, especially in view
of the referenced “colloquy” at trial, that Beltz was testifying
honestly on this point. I find that Beltz told Delon that he was
responding to the Respondent’s advertisement for “supervi-
sors/foremen” and that he was seeking employment as such. (It
appears that the General Counsel and the Charging Party also
disbelieve Beltz’ denial that he told Delon that he was applying
for the advertised “supervisors/foremen” jobs; neither party
mentions that denial on brief.)
b. Testimony of individuals who were hired as foremen
The General Counsel called three individuals whom the Re-
spondent hired as foremen during the November-to-January
period: (1) John Switzer was employed by the Respondent as a
“foreman, slash, supervisor” (Switzer’s words) from December
2000 until February 2002. On November 21, after seeing the
Respondent’s
newspaper
advertisement
for
“supervi-
sors/foremen,” Switzer telephoned Delon seeking an appoint-
ment. After briefly discussing Switzer’s job experience (which
included about 10 years of maintenance and residential electri-
cian’s work and 5 years of supervisory experience, but outside
the electrical industry), Delon asked Switzer to come to the
Respondent’s office and complete an application.
On November 22, after Switzer completed an application,
Delon handed him two test forms; one was on electrical work
and one was a “supervisory test.” Switzer finished the electri-
cal test first; he then started the supervisory test, but he did not
finish it because Delon came into the room and said that he had
reviewed Switzer’s answers to the electrical test, said that he
was satisfied with Switzer’s answers on that test, and then
“started talking about Bay Harbour policies and what they had
to offer.” Delon offered Switzer $16.50 per hour to start im-
mediately, first as “right-hand man” to a foreman and then as a
foreman himself. Switzer agreed.12
Switzer testified that on December 1, he attended a fore-
men’s orientation meeting at the Respondent’s office, which
meeting was attended by other individuals who had been re-
cently hired as foremen. Switzer testified that at that meeting
the Respondent showed the video entitled “Little Ticket, Big
Trouble.” The theme of the video, according to Switzer, was
that union authorization cards caused troubles between employ-
ees who did, and did not, sign them. (Apparently this was the
same video that Watkins described, although Watkins testified
that the title was “Little Card, Big Trouble.” The Respondent
12 Within a month, the Respondent raised Switzer’s hourly rate by
$1, but this was granted as compensation for the distance that Switzer
then had to drive to his assignments, not an increase in Switzer’s basic
pay rate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
970
offered no evidence about the video, including evidence of
what its exact name was.)
On December 4, Switzer began working at different jobs that
the Respondent then had going. On all of these jobs, Switzer
testified without contradiction that he did only journeyman
electrician’s work; he never did work, or took any responsibili-
ties, that the Respondent argues to be supervisory.
In late April or early May, or about 5 or 6 months after the
Respondent hired Switzer, Savoia sent to Switzer a form enti-
tled “Conditional Offer of Employment for Apprentice Electri-
cian.” Savoia attached a handwritten note stating: “It seems as
though you never signed this form at orientation. Please sign
and return to me.” The form states that the named employee (in
this case, Switzer) understood that he was being offered a job
as an apprentice (not as a foreman), subject to his passing a
physical examination. The form also has a boilerplate section
entitled “Description of Essential Job Duties” which lists sev-
eral functions of apprentices and concludes with: “Perform
other routine duties as directed by experienced craft person.”
Switzer testified that after he reviewed the document he called
Savoia; Switzer told Savoia that he had not been presented with
the document for signing during his orientation and that, any-
way, “At the interview ‘electrical apprentice’ was not even
brought up.” Switzer did not testify what reply, if any, that
Savoia made.
On May 8, Savoia sent another memorandum to Switzer; it
states: “Please read the enclosed job description; then sign and
date the Job Description Acknowledgment Form and return it to
me as soon as possible.” Savoia’s memorandum had two at-
tachments. The first, the “Job Description Acknowledgment
Form,” stated “I have received, read and understand my duties
and responsibilities at Bay Harbour Electric, Inc., for the posi-
tion of. . . .” In a following space, Savoia had handwritten
“apprentice electrician.” Following that were spaces for “Em-
ployee Signature” and “Date.” The attached apprentice’s job
description is 5 pages long; it includes the following in a sec-
tion entitled “Competency”:13
To perform the job successfully, an individual should demon-
strate the following competencies;
Analytical—Uses intuition and experience to comple-
ment data.
Design—Uses feedback to modify designs; Applies
design principles; Demonstrates attention to detail.
Problem Solving—Identifies and resolves problems in
a timely manner; Gathers and analyzes information skill-
fully; Develops alternative solutions; Works well in group
problem-solving situations; Uses reason even when deal-
ing with emotional topics.
Project Management—Completes projects on time and
budget.
Technical Skills—Assesses own strengths and weak-
nesses; Pursues training and development opportunities;
Strives to continuously build knowledge and skills; Shares
expertise with others.
13 Underlining and punctuation, as well as capitalization, are origi-
nal.
Customer Service—Manages difficult or emotional
customer situations; Responds promptly to customer
needs; Solicits customer feedback to improve service; Re-
sponds to requests for service and assistance; Meets com-
mitments.
Interpersonal—Focuses on solving conflict, not blam-
ing; Maintains confidentiality; Listens to others without
interrupting; Keeps emotions under control; Remains open
to others’ ideas and tries new things.
Oral Communication—Speaks clearly and persua-
sively in positive or negative situations, Listens and get
clarification; Responds well to questions.
Team Work—Balances team and individual responsi-
bilities; Exhibits objectivity and openness to others’ views;
Gives and welcomes feedback; Contributes to building a
positive team spirit; Puts success of team above own inter-
ests; Able to build morale and group commitments to
goals and objectives; Supports everyone’s efforts to suc-
ceed; Recognizes accomplishments of other team mem-
bers.
Written Communication—Writes clearly and informa-
tively; Able to read and interpret written information.
Leadership—Effectively influences actions and opin-
ions of others; Inspires respect and trust; Accepts feedback
from others; Provides vision and inspiration to peers and
subordinates.
Managing People—Improves processes, products and
services; Continually works to improve supervisory skills.
Quality Management—Looks for ways to improve and
promote quality; Demonstrates accuracy and thorough-
ness.
Business Acumen—Understands business implications
of decisions; Displays orientation to profitability; Demon-
strates knowledge of market and competition; Aligns work
with strategic goals.
Cost Consciousness—Works within approved budget;
Develops and implements cost saving measures; Contrib-
utes to profits and revenue; Conserves organization re-
sources.
Diversity—Demonstrates knowledge of EEO policy;
Shows respect and sensitivity for cultural differences;
Educates other on the value of diversity; Promotes a har-
assment-free environment; Builds a diverse workforce.
Ethics—Treats people with respect; Keeps commit-
ments; Inspires the trust of others; Works with integrity
and ethically; Upholds organizational values.
Organizational Support—Follows policies and proce-
dures; Completes administrative tasks correctly and on
time; Supports organization’s goals and values; Benefits
organization through outside activities; Supports affirma-
tive action and respects diversity.
Strategic Thinking—Develops strategies to achieve or-
ganizational goals; Understands organization’s strengths &
weaknesses; Adapts strategy to changing conditions.
Adaptability—Adapts to changes in the work envi-
ronment; Manages competing demands; Changes approach
or method to best fit the situation; Able to deal with fre-
quent change, delays, or unexpected events.
BAY HARBOUR ELECTRIC
971
Attendance/Punctuality—Is consistently at work and
on time; Ensures work responsibilities are covered when
absent; Arrives at meetings and appointments on time.
Dependability—Follows instructions, responds to
management direction; Takes responsibility for own ac-
tions; Keeps commitments; Commits to long hours of
work when necessary to reach goals; Completes tasks on
time or notifies appropriate person with an alternate plan.
Initiative—Volunteers
readily;
Undertakes
self-
development activities; Seeks increased responsibilities;
Takes independent actions and calculated risks; Looks for
and takes advantage of opportunities; Asks for and offers
help when needed.
Innovation—Displays original thinking and creativity;
Meets challenges with resourcefulness; Generates sugges-
tions for improving work; Develops innovative approaches
and ideas; Presents ideas and information in a manner that
gets others’ attention.
Judgment—Displays willingness to make decisions;
Exhibits sound and accurate judgment; Supports and ex-
plains reasoning for decisions; Includes appropriate people
in decision-making process; Makes timely decisions.
Motivation—Sets and achieves challenging goals;
Demonstrates persistence and overcomes obstacles; Meas-
ures self against standard of excellence; Takes calculated
risks to accomplish goals.
Planning/Organizing—Prioritizes and plans work ac-
tivities; Uses time efficiently; Plans for additional re-
sources; Sets goals and objectives; Organizes or schedules
other people and their tasks; Develops realistic action
plans.
Professionalism—Approaches others in a tactful man-
ner; Reacts well under pressure; Treats others with respect
and consideration regardless of their status or position;
Accepts responsibility for own actions; Follows through
on commitments.
Quantity—Meets productivity standards; Completes
work in timely manner; Strives to increase productivity;
Works quickly.
Safety and Security—Observes safety and security
procedures; Determines appropriate action beyond guide-
lines; Reports potentially unsafe conditions; Uses equip-
ment and materials properly.
The job description for apprentices also includes: “Supervisory
Responsibilities: This job usually has no supervisory responsi-
bilities; however, from time to time may directly supervise
electricians and carry out responsibilities as an electrician
foreman.”
Upon receiving the May 8 memorandum and attachments,
Switzer again called Savoia. Switzer testified: “I let Sherry
know that electrical apprentice was not my classification, was
not my understanding of hire, and that I wasn’t gonna sign that
paperwork.” Savoia responded that she would “look into why I
was sent that job description.”
On June 8, Leslie Sadley, a clerical employee in Savoia’s of-
fice, sent Switzer another memorandum stating: “You have yet
to return your Job Description Acknowledgment [sic] Form to
[Savoia]. Please do so as soon as possible.” Sadley included
another job description acknowledgment form, again with “ap-
prentice electrician” written in as Switzer’s job classification.
Switzer called Savoia again; not reaching Savoia, Switzer left a
voice-mail message “that they had sent me the wrong job de-
scription . . . I wasn’t gonna sign this and send it back.”
On June 26, Sadley sent Switzer another memorandum with
two attachments. The topic line of the memorandum was: “Job
Description, second mailing.”
The attachments were another
copy of the job description acknowledgement form and another
copy of an apprentice’s job description.
“Apprentice electri-
cian” was again handwritten as Switzer’s job classification on
the job description acknowledgment form. Switzer again called
Savoia and left the same voice-mail message.
In late July, Sadley sent Switzer another memorandum stat-
ing: “I talked to [Savoia]. Sorry for the confusion. If this isn’t
correct, please let me know.”
Attached was another job de-
scription acknowledgement form; this time “electrical foreman”
was written in. Attached also was a job description for an elec-
trical foreman. It contains the same “Competency” section that
the above-quoted apprentice form contains. Under “Essential
Duties and Responsibilities” in the foremen’s job description
are (in list form):
Requires working with tools. Plans and lays out wiring and
installation of equipment and fixtures such as motors, genera-
tors, switches circuit breakers and fuse boxes. Inspects wiring
and fixtures for conformance to company specifications or lo-
cal electrical codes. Studies job schedules and estimates
worker hour requirements for completion of job assignment.
Interprets company policies to workers and enforces safety
regulations. Establishes or adjusts work procedures to meet
job schedules. Recommends measures to improve methods,
equipment performance, and quality of service. Suggests
changes in working conditions and use of equipment to in-
crease efficiency of project or work crew. Analyzes and re-
solves work problems or assists workers in solving work
problems. Initiates or suggests plans to motivate workers to
achieve work goals. Maintains time and production records.
Estimates, requisitions and inspects materials. Confers with
other supervisors to coordinate activities of individual de-
partments. Performs activities of workers supervised. May
require doing a working estimate and take-off jointly with the
Project Manager. Completes correspondence and forms re-
quired by the office; i.e., daily reports, time sheets, safety re-
ports, accident reports, etc. Maintains a productive workforce
by ensuring employees are beginning and ending the work
shift according to company policy.
The foreman’s job description that Sadley sent to Switzer in
late July also includes, in a section headed “Supervisory Re-
sponsibilities”:
Directly supervises journeyman electricians and apprentice
electricians. Carries out supervisory responsibilities in accor-
dance with the organization’s policies and applicable laws.
Responsibilities include training employees, planning, assign-
ing and directing work; appraising performance; rewarding
and disciplining employees; addressing complaints and re-
solving problems.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
972
Switzer testified that he did not respond to the last memoran-
dum from Sadley because “I questioned whether I should have
signed this because I was not performing tasks that this job
description gave.”
On August 17, Sadley sent Switzer another memo, “RE: Job
Description Acknowledgment [sic] Forms.” Sadley stated:
You still have not returned your Job Description Acknowl-
edgment [sic] Form. Attached you will find yet another copy.
You must sign the Acknowledgment [sic] and return it to the
office ASAP. Keep the job description for your files. Failure
to comply with this request will be noted in your personnel
file.
Attached were another copy of a job description acknowledge-
ment form for “apprentice electrician” (again handwritten) and
another copy of the above-quoted job description for an appren-
tice electrician. Again Switzer called Savoia and told her that
“they had again sent the incorrect job description . . . that
wasn’t the foreman position I applied for.” Savoia replied that
the “correct paperwork” would be sent to Switzer.
Switzer testified that, at some later point, Joe Sullivan, the
Respondent’s safety compliance officer,14 approached him
where he was working at the Respondent’s Cardinal Middle
School project in Erie. Sullivan handed Switzer another copy
of the Respondent’s job description acknowledgement form for
“foreman” and another copy of the Respondent’s job descrip-
tion for foremen.
Along with those documents, Sullivan
handed Switzer an investigative subpoena ad testificandum
from the Board’s Pittsburgh Regional Office. The subpoena
required Switzer to appear before a Board agent at the Respon-
dent’s Erie office on October 16, as part of the investigation of
the charges in this case.
Attached to the subpoena was a
memorandum from Savoia stating: “The union recently filed a
charge. We are not sure of all details at this time. An attorney
is working [with] the NLRB to file an extension on the date.
Hang tight until you hear from me [with] further details.”
After giving these documents to Switzer, Sullivan asked
Switzer to sign the foreman’s job description acknowledgement
form.
According to Switzer, he examined the form first;
Switzer testified: “And I told Joe that the reason I had not
signed it was because I was concerned about not performing the
task[s] in the job description, and signing something that was
not true or accurate.”
Sullivan responded to Switzer “that it wasn’t that I was sign-
ing a piece of paper of the tasks that I was doing, but what I
would do in that position.” Switzer further testified that, after
noticing the subpoena and Savoia’s note, he also told Sullivan
that, “I wasn’t prepared to sign this at all until I find out what
the subpoena was about.” Switzer did not sign a job descrip-
tion acknowledgement form (for either the position of appren-
tice or foreman) during his employment with the Respondent.
(Sadley, as well as Sullivan, did not testify. Savoia testified,
but she did not dispute any of this testimony by Switzer.)
On cross-examination, Switzer admitted that he was “inter-
ested in a management position” when he applied to the Re-
spondent, and he agreed that Delon told him that he would first
14 See fn. 9.
work on some jobs as a journeyman but, at the same time, he
would be learning what he needed to know in order to supervise
jobs as a foreman-in-charge. Switzer testified, however, that he
was never placed with a foreman to learn the paperwork or
given such instructions.
ISO is a quality and documentation standards system that
Bay Harbour follows. Further on cross-examination, Switzer
admitted that, in February, during a second foremen’s orienta-
tion session in February, he received instructions on how to
complete the Respondent’s documents under ISO standards, but
he denied that he ever completed such documents on a job.
Switzer further admitted that, when Sullivan gave a safety sec-
tion of the orientation meeting, he told those who were newly
hired as foremen that “foremen at Bay Harbour were consid-
ered to be management representatives responsible for enforc-
ing safety standards on the job.”
(2) Milton Zill, the second foreman whom the General
Counsel called as a witness, testified that on December 5, he
responded to the Respondent’s newspaper advertisement and
interviewed with Delon. When Delon told Zill that he was
hired as a foreman, he also told Zill that he could not “be an
organizer” because he was then becoming a part of manage-
ment. Based on that statement by Delon, the complaint alleges
that, in violation of Section 8(a)(1), the Respondent “informed
employees that they were forbidden to engage in union organiz-
ing activities.”
Zill’s initial pay as a foreman was $16.50 per hour, plus an
additional $1 per hour allowance for travel time. Zill testified
that, although he was classified as a foreman, he has never “run
any jobs” (i.e., been a foreman-in-charge) for the Respondent.
Zill testified that on all jobs that he worked for the Respondent
he has worked as a journeyman, using his tools in manual labor
and that he did no “foreman work.” The Respondent did not
contest this testimony.
On examination by the Respondent, Zill identified a copy of
a conditional offer of employment for foreman form which he
signed on December 8. The form states that it is “conditional
upon your ability to physically perform the essential job duties
of this position.” In a section captioned “Description of Essen-
tial Job Duties,” the form first has an extensive listing of job
duties for foremen; these include the manual-labor jobs (such as
pulling wires through conduits, soldering wires, and applying
tape or terminal caps) that would normally be classified as
journeymen’s work (or even apprentices’ work, according to
the testimony and the forms that Savoia sent to Switzer, as
discussed above). The section then recites:
As a foreman with BHE, you are vested with the au-
thority to recommend hiring and firing of applicants and
employees, issue discipline in appropriate circumstances,
grant vacation and sick leave and other time off, draft and
issue employee performance evaluations (which are used
to adjust employee wage rates), direct and assign work and
other supervisory responsibilities. You are vested with
these duties until such time as you are notified otherwise
in writing by the Director of Human Resources or desig-
nee of BHE.
BAY HARBOUR ELECTRIC
973
Responsible for15 organizing, supervising and directing
the work of the assigned job crew performing electrical
work. This includes responsibility for job safety standards
and ISO procedures.
Responsible for monitoring and
documenting the progress of the assigned job including the
quality and quantity of work performed by the job crew.
Foreman will serve as liaison between job and the General
Contractor.
When referred to the quoted paragraphs, Zill agreed that they
accurately described what he “understood would be the expec-
tations of a foreman with Bay Harbour.”16
Zill further testified on examination by the Respondent that,
within 2 months of his being hired, he attended two foremen’s
training sessions which consisted, according to his memory, of
mostly safety training and paperwork about “keeping track of
what’s going on a job.” Zill agreed that during the foremen’s
training meetings, he was told that foremen are responsible for
safety on the Respondent’s jobs. Zill testified that, although he
has never been a foreman who was in charge of one of the Re-
spondent’s jobsites, at time of trial he was in charge of an area
of Respondent’s Medina High School construction project
where he had two journeymen subordinate to him. The jour-
neymen were employees of CLC, a temporary employment
agency. Zill testified that he has directed the work of those
employees and will tell them, without checking with anyone
else, to redo work if he thinks it is “done sloppy” because he
would be held responsible by the Respondent. Zill testified
further: “I figured out what needed to be done. And I had these
guys do what they needed to do to try to complete that area of
the job to be done.” When asked if he could cause a CLC em-
ployee to be removed from the area over which he was in
charge, Zill replied, “I’m sure I could. I haven’t had to.” Zill
further testified that he has been in charge of one or more em-
ployees on sections of other jobs when he was reporting to
foremen-in-charge, himself. As such, he has the employees
working with him to do, and redo, work.
(3) Stephen Hovanec, the third foreman whom the General
Counsel called as his witness, had extensive experience in the
electrical industry, including a significant amount of supervi-
sory experience with other employers. On January 16, shortly
after he saw the Respondent’s newspaper advertisement for
“supervisors/foremen,” Hovanec went to the Respondent’s
office and completed an application. Hovanec testified that
Delon gave him one written test and, when he finished, Delon
gave him another. Delon interrupted Hovanec’s taking of the
second test by stating that he should stop because he had done
so well on the first test. Hovanec testified that then:
[Delon] told me that I was going to be hired as an industrial
foreman in the Cleveland area, and that they would match my
[then-current] pay [of $19.50 per hour], and that eventually I
would be running jobs, start out with meeting the people in
15 This is an exact quote; that is, omitted was any introductory phrase
such as “As a foreman with BHE, you are. . . .”
16 As discussed infra, 9 of the 11 foremen whom the Respondent
hired in the November-through-January period signed such forms,
Switzer and Gary Kopec being the exceptions.
the field, running small jobs at first, but then I would be onto
running large jobs.
On January 18, Hovanec attended an orientation meeting, the
content of which Hovanec was not asked to describe. (If it was
an orientation for supervisors, the fact was not brought out.)
Hovanec signed a conditional offer of employment for foreman
form on the same date. Hovanec began working for the Re-
spondent on January 22. Hovanec testified that since being
hired, he has done only “journeyman electrical work.” Specifi-
cally, Hovanec testified: “My job duties have been to run pipe,
pull wire, devise devices, [and a] small amount of fire alarm
work.”
Hovanec testified that in mid-May a job description ac-
knowledgment form was sent to his home; in the space for “po-
sition” was handwritten “electrical foreman.” Attached was the
job description for an electrical foreman, as partially quoted
above. An accompanying memorandum stated that he was to
read it, sign it, and return it to the Respondent’s office.
Hovanec testified that he did not sign the job description ac-
knowledgement form because: “I read through it and I didn’t
feel I was doing what the job said to do, so at that time I did not
sign it.” Hovanec further testified that on October 18, 2000
(after some of the charges herein were filed) Sullivan ap-
proached him as he worked at the Respondent’s Belden Village
project in Canton.
Sullivan presented Hovanec with another
job description acknowledgement form and another foreman’s
job description. According to Hovanec:
He told me I had to sign this.
And I told him I didn’t feel comfortable signing it be-
cause I didn’t feel I was actually fulfilling the job descrip-
tion that was on the pages.
At that time he told me, “This isn’t what you should be
doing, this is what we expect you to do. You do think you
can do the things on this form, don’t you, Steve?”
I said, “I can readily do them.”
He said, “Well, if you want the chance to do this, if
you want the chance to be a foreman, you have to sign this
form.” And at that time I signed it.
On cross-examination Hovanec agreed that, during his em-
ployment interview, Delon offered him “a supervisor’s posi-
tion.”
Hovanec further agreed that the conditional offer of
employment for foreman form that he signed for Sullivan de-
scribed the position that he wanted when he signed it. Al-
though Hovanec did not run any of the Respondent’s jobs, he
worked under several different foremen who did. Hovanec
agreed that such foremen, were required to: “use a lot of judg-
ment . . . [i]n terms of being able to manage the project success-
fully to conclusion.” Hovanec further agreed that the Respon-
dent’s foremen who were in charge of jobs, “make decisions
about when to order materials in advance so that the materials
get to the job site in a timely basis, . . . make decisions about
how to use the crew skills in a way to most efficiently complete
the project, . . . [and] assign one person to one area based upon
[his] assessment of that person’s strengths or weaknesses and
assign a different person to another portion of the project based
upon [his] assessment of that [other] person’s strengths and
weaknesses.”
Hovanec at first argued that a foreman could
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
974
contact a project manager if there was a problem on his job, but
he then agreed that: “The day-to-day operations are the fore-
man’s position.”
(Hovanec also agreed that, for one 2-week period, he substi-
tuted for his foreman-in-charge, Bob Harris. On brief, the Re-
spondent argues that this period was one in which Hovanec was
a foreman-in-charge, himself. Savoia, however, admitted dur-
ing the presentation of the Respondent’s case that Hovanec had
never run a job. Savoia would not have made such admission if
the Respondent had considered Hovanec’s substitution for Har-
ris a period of acting as a foreman-in-charge. Also, Hovanec
testified that he had signed a certain order form while substitut-
ing for Harris; about a month later, however, Hovanec received
a memorandum from the Respondent’s office stating that he
had to get another signature on the form “because a foreman
had to sign it.” I shall therefore not consider Hovanec’s substi-
tution for Harris further.)
C. Evidence Presented by the Respondent
1. The Respondent’s business and hiring practices
In June 2000, in the hope and anticipation of securing more
business in Ohio, the Respondent purchased Diamond Electric
Company of Cleveland. The Respondent introduced through
Dennis McCulah, its director of business development, records
that show that it did experience a significant increase in busi-
ness from August through December 2000. After December
2000, however, business declined sharply; in fact, during the
months of February, May, and June 2001, the Respondent was
awarded no contracts on which it had previously bid.
The Respondent does not hire any applicant as a journey-
man. (In fact, Savoia admitted on cross-examination that the
Respondent has, for at least 5 years, maintained in a front win-
dow of its Erie facility a sign stating: “Not Accepting Journey-
men Applications At This Time.”) The Respondent contends
that it secures all the journeyman electricians that it needs from
its apprenticeship program and from temporary employment
agencies. Savoia described an extensive apprentice-training
program that the Respondent conducts, and she testified that the
reason for the program is: “To train people. To have people
become qualified electricians. To create Bay Harbour with a
pool of journeymen.” Savoia identified records that reflect that,
between June 1999 and June 2001, the Respondent’s apprentice
program graduated 19 individuals. Savoia testified that 17 of
those individuals were still employed by the Respondent as of
December 31, 2001.17
When asked specifically why the Re-
spondent had advertised for supervisors and apprentices, but
not for journeymen, during October and November, Savoia
replied:
17 The clear implication of Savoia’s testimony is that all of these 17
individuals are now employed as journeymen, but Savoia did not ex-
pressly say that. The General Counsel introduced no evidence to the
contrary. (In fact, the record does not disclose how many individuals
the Respondent classified as journeymen at relevant times. The CP
Exh. 11 lists some individuals as journeymen, but Savoia denied its
accuracy, and the personnel files of the individuals were not intro-
duced.)
I did not have a need. I was growing my own electricians.
We had plenty of people that were graduating from the ap-
prenticeship program and had graduated in previous years.
Plus we had just done the purchase with Diamond Electric
and they had probably somewhere around 20 electricians that
added to the pool at that time.
Savoia further testified that the Respondent also contracts for
employees, including journeymen, from temporary employment
agencies to avoid having to lay off its own employees between
jobs.18
Savoia testified that the Respondent operates as many as 20
projects at a time, that each project has a foreman, and that:
The role of a foreman would be your management representa-
tive for the Company, your front line supervisor. They’re in-
volved in managing the project from beginning to end to see
that the project is brought in within the budget, and brought in
to the customer’s satisfaction, to ensure the overall safety on
the job. . . . [The foremen] ensure the policies and procedures
are being followed for safety [and other] policies and proce-
dures [such as] making sure people are coming in at the ap-
propriate time. If there’s employee issues, performance is-
sues, attendance issues, for them to pretty much keep them on
track, and to train these people, and work with the trades, and
coordinate for the schedule, order materials.
Savoia testified that the Respondent considered all foremen to
be part of management and that applicants for foremen’s posi-
tions were told this during the interviewing processes.
Savoia further described a detailed foremen’s training proc-
ess which includes a 2-day indoctrination on topics including
foremen’s responsibilities for supervising employees and for
their safety; the foremen’s training also includes cautions
against threatening, interrogating, or making promises to em-
ployees about their union activities and cautions against sur-
veillance of employees’ union activities. Savoia testified that
only those who were hired as foremen are given this training.
The Respondent further introduced records that six foremen
quit during the period from June 20 through November 19,
2000. Savoia testified that each of those six foremen had su-
pervised crews and “run jobs” (what I have called, and what
some witnesses referred to as, foremen-in-charge).
Savoia
further testified that the Respondent advertised for foremen in
November and December 2000, because the Respondent had
lost those foremen, because some of the foremen that Diamond
had employed were proving unsatisfactory, and because there
had appeared to be an upturn in business during that period.
Savoia testified that after all of the foremen had been hired
during the November-to-January period, the Respondent’s busi-
ness “crashed” (referring to the contract-failures that were de-
scribed by McCulah). Savoia testified that, had the Respondent
known that its business was going to decline to the extent that it
did after the first of 2001, it would not have gone through the
process of advertising for, and hiring, the foremen that it did
hire.
18 The General Counsel does not contend that the Respondent unlaw-
fully denied employment to any of the alleged discriminatees by hiring
temporary employees.
BAY HARBOUR ELECTRIC
975
As previously noted, the Respondent hired 11 individuals as
foremen from November 2000 through January 2001. On di-
rect examination, Savoia was referred to 10 of those individuals
(Kopec being the exception). Savoia testified that the Respon-
dent intended to use the 10 individuals to whom she referred as
supervisors who would run jobs. Savoia acknowledged, how-
ever, that 4 of the 10 did not run a job during their tenure with
the Respondent; those were Switzer, Zill, Hovanec, and Rich-
ard Patalon. Also, if Kopec had run a job, Savoia would have
mentioned him as having done so. I therefore find that at least
these 5 of the 11 individuals who were hired as foremen during
the period from November 2000 through January 2001, had not
run a job, as the foreman-in-charge, for the Respondent by time
of trial.
(Below, I reject the Respondent’s contentions and
additionally find that Peter Finnell and Michael Rumschlag
never became foremen-in-charge of any of its jobs.)
Savoia testified that when Delon told her that Stock had ap-
plied, and that he was a union organizer, she told Delon,
“[W]ell, it’s a conflict of interest for an organizer to be in a
supervisory position, and feel free to tell the individual that.”
Savoia further was asked, and she testified:
Q. Did the Company consider the IBEW members for
foremen positions at Bay Harbour?
A. No, we did not.
Q. Why not?
A. Because it was a conflict of interest.
That is, the Respondent considered all IBEW members to have
a debilitating conflict of interest, not just the professional or-
ganizer Stock.
On cross-examination, Savoia acknowledged that she re-
ceived Stock’s offers to work as a journeyman or apprentice.
When asked why she did not reply to Stock’s May offer to
accept a journeyman’s position, Savoia replied: “He was apply-
ing originally for a foreman position, a supervisory position.”
When first asked why she did not consider Stock for employ-
ment as an apprentice when he applied for “any field position
. . . an apprentice to a foreman,” Savoia replied: “I don’t
know.” When asked again, Savoia replied, “He had already
completed the apprenticeship program, I know that.”
(On
March 30, 2001, however, the Respondent hired Joe Kuli-
gowski as an apprentice, even though Kuligowski had already
completed an apprenticeship program in North Carolina.)
2. Denial of threats by Chisholm
As previously noted, the Respondent did not call Delon to
deny that he told Stock that he would not be considered for hire
as a foreman because of his union membership and activities, or
to deny that he told a group that included Watkins that the Re-
spondent would “deal” with any hired employee whom it later
found to be affiliated with the Union, or to deny that he told
Zill that he would not be allowed to engage in union activities
after he was hired as a foreman. Nor did the Respondent call
Anthony to deny that he engaged in a telephone conversation
with Dobrich (which conversation Albano claims to have over-
heard) in which he (Anthony) stated that the Respondent would
not hire Albano directly because of his union membership. The
remaining 8(a)(1) allegations of the complaint are that, on De-
cember 16 and April 20, Chisholm told Albano that he would
not be hired because of his union membership. The Respon-
dent did not call Chisholm to deny Albano’s testimony, but it
did call Ron Sciarrilli who Albano admitted was present during
his exchanges with Chisholm at the Erie Ice Arena.
Sciarrilli, a printing broker in Erie (who has never done busi-
ness with the Respondent), is a lifelong friend of Chisholm.19
Sciarrilli testified that he and Chisholm, and their respective
wives, have season tickets together at the Erie Ice Arena for the
games of the local hockey team. (The Sciarrillis and the Chis-
holms also take vacations together and otherwise socialize with
each other regularly.) Albano also has season tickets, but they
are for seats in a section of the arena that is distant from those
of the Sciarrillis and the Chisholms. Sciarrilli testified that,
during the intermissions of the hockey games, he and Chisholm
regularly go to the bar in the concessions area.
Sciarrilli testified that during the 2000–2001 hockey season,
from 8 to 10 times, Albano joined him and Chisholm during
intermissions at the games. Each time, Albano would ask Chis-
holm if he could become hired by the Respondent. Each time,
Chisholm would tell Albano that he did not do the hiring and
that Albano had to file an application to become hired. Sci-
arrilli testified that he and Chisholm would attempt to steer the
conversations away from the topic of Albano’s employment
because they did not like to “talk shop” at the hockey games.
Sciarrilli flatly denied that Chisholm ever mentioned Delon
during the intermissions. Sciarrilli also denied that Chisholm
ever said to Albano that Anthony did not like to hire union-
affiliated electricians. Sciarrilli further testified that the only
time that a union, or Albano’s union membership, was men-
tioned during the conversations at the Erie Ice Arena was to-
ward the end of the season when Albano then asked Chisholm
if his union membership was causing him not to be hired by the
Respondent.
According to Sciarrilli, Chisholm denied that
Albano’s membership had anything to do with his not being
hired.
On cross-examination, Sciarrilli testified that he had not been
subpoenaed to testify for the Respondent; Sciarrilli testified that
Chisholm called him the night before he (Sciarrilli) testified
and asked him to appear.
3. Evidence about disputed supervisors
As previously noted, the Respondent hired 11 individuals as
foremen during the November-to-January period; the Respon-
dent contends that all 11 were supervisors under Section 2(11),
and the General Counsel denies it. The 11 individuals are:
Robert Ockuly, Mark Baron, Michael Rumschlag, Michael
Debalski, John Bechhold, John Switzer, Milton Zill, Richard
Patalon, Stephen Hovanec, Peter Finnell, and Gary Kopec. As
discussed above, the General Counsel called as his witnesses
Switzer, Zill, and Hovanec. Neither party called Rumschlag,
Patalon, Finnell, or Kopec. The Respondent called Ockuly,
Baron, Debalski, and Bechhold.
19 Sciarrilli has also known Albano for several years and has given
him work (not electrical work) from time-to-time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
976
a. Foremen who testified for the Respondent
(1) Ockuly was employed by the Respondent as a foreman
on November 3, and he remained such at time of trial. At the
time of hire, Ockuly had extensive supervisory experience in
the electrical industry, including having owned his own busi-
ness. Ockuly testified that in late October he saw in an Ohio
newspaper one of the Respondent’s advertisements for “super-
visors/foremen,” and he then called Delon. After discussing
Ockuly’s experience, Delon invited him for an interview. At
the interview, Delon gave Ockuly 3 tests (a “psychological”
test about what he would do in hypothetical situations that
could arise among subordinates, an electrical code test, and a
test on methods and materials). During the following week,
Delon called Ockuly and told him that the Respondent wished
to hire him first as an independent contractor (under the name
of the company that Ockuly had owned) to work with one of
the Respondent’s foremen at one of its projects. Ockuly agreed
and worked from that point as an independent contractor until
November 3, when he signed a conditional offer of employ-
ment for foreman form and became employed by the Respon-
dent as a foreman at a starting hourly pay rate of $20. (The
Respondent’s conditional offer of employment for foreman
form is partially quoted above in the discussion of Zill’s testi-
mony.) Ockuly testified that the form’s paragraph that begins
with “As a foreman with BHE, you are vested . . .,” and the
paragraph that begins with “Responsible for . . .” accurately
describe what he expected his responsibilities to be as a fore-
man for the Respondent.
At trial, the General Counsel offered as his Exhibit 42 a sum-
mary of the Respondent’s records that the Respondent created
during the investigation of the charges herein. The summary
shows dates of work and the hourly rates of pay of 8 of the 11
individuals who were hired by the Respondent as foremen in
the November-to-January period. The eight included individu-
als are Ockuly, Baron, Rumschlag, Debalski, Bechhold,
Switzer, Zill, and Patalon; not mentioned are Hovanec, Finnell,
and Kopec. The exhibit begins with the (weekly) pay period
ending November 10, 2000, and it ends with the pay period
ending October 5, 2001.
The General Counsel’s Exhibit 42 reflects that Ockuly began
working for the Respondent during the pay period ending on
November 10 at the rate of $20 per hour, but he is credited with
only 7.5 hours work, and no construction site is mentioned. For
the next pay period, ending November 17, Ockuly is credited
with working at the Respondent’s Staples store-construction
project job at $20 per hour. Ockuly remained at that job, at that
rate, until the pay period ending December 1 when he was
raised to $21. This 5 percent increase reflects the premium that
the Respondent pays to foremen-in-charge. Ockuly remained at
the Staples project until the pay period ending March 2, when
he worked at the Respondent’s Target store project where he
worked, for rates varying from $21 to $22.50 per hour, until the
pay period ending June 29. Ockuly worked at the Wadsworth
project during the pay period ending July 6, at a rate of $20 per
hour; he was raised to $21 per hour during the pay period end-
ing July 20; and he worked at that rate at Wadsworth until the
pay period ending August 10. Ockuly began working at the
Respondent’s H.H. Gregg site during the pay period ending
August 17, at a rate of $22.05 which would reflect the 5 percent
premium that the Respondent pays to foremen-in-charge. The
General Counsel’s Exhibit 42 shows Ockuly continuing at that
rate at the H.H. Gregg job through the pay period ending Octo-
ber 5.
Ockuly testified that at the Staples job, he first trained under
Lou Wank who was the foreman-in-charge. Wank introduced
him to the job’s paperwork and procedures; then Ockuly be-
came “the” foreman of the job. (That is, Ockuly became the
foreman-in-charge on the Staples job upon succeeding Wank.
On some other jobs, as discussed infra, Ockuly was “a” fore-
man on the job, a subordinate to a foreman-in-charge.) As the
foreman-in-charge on the Staples job, Ockuly testified:
My responsibilities were to, of course, supervise the employ-
ees that I had, to stay in contact with the general contractor, to
relate with other contractors on where I was in comparison . . .
to where they were, to keep the job in budget and on time.
Ockuly testified that the employee complement at the Staples
job varied between 6 and 10, and he made recommendations to
increase or decrease the number to Chisholm, the project man-
ager; Chisholm followed his recommendations. Ockuly testi-
fied that he assigned work to all employees on the jobsite based
on his appraisal of “where they were in the electrical trade.”
Ockuly was also responsible for ordering materials for the job
(after the initial supplying had been done by the Respondent’s
office). As the foreman on the Staples job, Ockuly regularly
dealt with the general contractor; Chisholm rarely came to the
jobsite.
Ockuly testified that at the Target job he was a foreman un-
der a foreman-in-charge who went unnamed. (That is, Ockuly
was not the foreman-in-charge at the Target job, even though
he continued to receive $21 per hour when he was on that job.)
Ockuly testified that as a subordinate foreman he had a crew,
but he was not asked how many employees were on that crew
at the time. Ockuly testified that he “was told” that he had the
same responsibilities for the crew under him that he did at the
Staples job.
(Ockuly did not, however, testify who had told
him such.)
Ockuly testified that at the Wadsworth School jobsite he was
assigned “to give assistance to the foreman,” Ryan Point-
kowski, who was running the job. (The Respondent classifies
Pointkowski as an apprentice.)
Ockuly testified that the
Wadsworth job had about 11 employees, that he was given a
crew of two employees (both journeymen), and that he “felt”
that he had the same authorities that he did at Staples. (Ockuly
named those employees as Baron and Kopec, both of whom the
Respondent
contends
were
supervisors.)
On
cross-
examination, Ockuly agreed that he did not receive the 5 per-
cent wage premium of the foreman-in-charge on the Target and
Wadsworth jobs.
Ockuly further testified that when the Gregg project began,
he had only 2 employees reporting to him, but the number later
grew to 12. Ockuly testified that he had the same responsibili-
ties at the Gregg project that he did at the Target project.
In December 2000, Ockuly underwent a 1-day training ses-
sion dealing with a foreman’s responsibilities in regard to the
Respondent’s policies, procedures, and paperwork. (At a later
BAY HARBOUR ELECTRIC
977
point he had a second 1-day training session on a foreman’s
responsibilities in regard to safety.) Ockuly testified that one of
the forms that he was taught to complete as a foreman-in-
charge was a job’s “Task Code Sheet.”
Employees fill out
individual task code sheets that describe the work they do on a
daily basis. After checking the sheets for accuracy, a foreman-
in-charge (as opposed to any subordinate foreman who may be
on the job) transfers the individual results to the job’s task code
sheet. The sheets are used by the Respondent to estimate costs
on future jobs. Another form that was the subject of the De-
cember training session was the “Jobsite Orientation” form; it is
a checklist that a foreman-in-charge goes through when a new
employee is assigned to his site, including “Introduce new em-
ployee to other employees on site. . . . Quick overview of pro-
ject. . . . Review smoking policy. . . . Discuss the proper use of
tools and equipment.” Both the employee and the foreman-in-
charge sign the form.20 Other documents that Ockuly received
instructions about during his foreman’s training session were
the Respondent’s “Employee Counseling Notes” form, its “Job-
site Safety Survey” form, and its “Field Day(s) Off Request”
form. Ockuly testified that, although he has never issued one of
the counseling forms, he was told during a foremen’s training
session that he had the authority to discipline employees and
that he could use the counseling-notes form for that purpose.
Ockuly also testified that during the training session he was
told that he had the authority to recommend discharge of an
employee; Ockuly has never made such a recommendation, but
he testified that he felt that any such recommendation from him
would be followed by the Respondent’s upper management.
The safety-survey form is one that Ockuly gives to new em-
ployees; it lists things that employees are to watch for to con-
duct their jobs safely.
(Ockuly further testified that “every
Monday” he conducts safety meetings on jobs for which he is
the foreman-in-charge.) In regard to the days-off form, Ockuly
testified that an employee enters a request and, after checking
either a box for “Approved” or “Denied,” the foreman-in-
charge sends the form to the Respondent’s office for final dis-
position. Ockuly testified, however, that time-off requests are
sent to the office only to approve or deny “as far as payment,”
and that only the foreman-in-charge decides whether the em-
ployee may take time off.
When the General Counsel’s witness Switzer was on cross-
examination, he admitted that, when he worked for 2 months on
the Respondent’s Staples job, Ockuly was the foreman-in-
charge and that, as such, he considered Ockuly to be his super-
visor. Switzer further admitted that Ockuly assigned and di-
rected his work, that Ockuly was responsible for keeping the
employees on the job working, that Ockuly had the authority to
make him redo his work, that Ockuly regularly dealt with the
general contractor, that the project manager came to the job
20 Ockuly testified that he uses the jobsite orientation form as “a
foreman,” but it is clear that he was referring to occasions when he was
acting as a foreman-in-charge of a project, not a subordinate foreman
who may also be on the job. Ockuly referred to the foreman-in-charge
as “the foreman that had to deal with the paperwork,” and I find that all
references to the Respondent’s forms that he possessed or used on the
job were as a foreman-in-charge.
only “once every 2 weeks or so,” and that Ockuly (at least ini-
tially) approved time off requests.
When Charging Party Watkins was on cross-examination, he
was asked about Ockuly; at the same time, Watkins was also
asked about the statuses of Peter Finnell and John Bechhold
whom the Respondent also contends were foremen, and super-
visors, at relevant times (and whom the General Counsel con-
tends were not supervisors, even if they were designated as
foremen). First, Watkins acknowledged that in his pretrial
affidavit he stated that he had worked under Ockuly, Finnell
and Bechhold when they were foremen-in-charge, “running”
jobs. Then Watkins was asked and he testified:
Q. When you say “running the job,” what exactly do
you mean?
A. They were the individuals who were assigning job
tasks for anybody on the job, ordering in material, turning
in time for everybody on the job. If somebody new came
to the job they were the ones that showed them where eve-
rything was at, and so forth.
Q. Would the foremen assign you work?
A. Yes.
Q. Did you report to those foremen?
A. Yes.
Q. Did you consider these foremen to be your supervi-
sor?
A. On the job.
On redirect examination, the General Counsel did not ask Wat-
kins how he had formed these impressions.
Baron, the second foreman whom the Respondent called as
its witness, was hired as a foreman also on November 3. Baron
testified that his previous job was as a supervisor for another
electrical contractor.
For 6 years before that employment,
Baron had owned his own electrical contracting business.
Baron first applied for a project manager’s position with the
Respondent in July 2001; Delon and Savoia interviewed him
but did not hire him.
In late October, when he was unem-
ployed, Baron again contacted Delon who invited Baron for an
interview on November 3.
(Baron testified on cross-
examination that he had not seen any of the Respondent’s
newspaper advertisements for foremen.) On that date, after
more discussions with Delon, Baron signed a “Conditional
Offer of Employment for Foremen” form. Baron testified that
he understood that, as a foreman for the Respondent, he would
have the duties that are listed on the form. (Baron testified on
cross-examination that he did not undergo any testing.)
The General Counsel’s Exhibit 42 reflects that Baron began
the Respondent’s Medina High School project during the pay
period ending November 17, at $21 per hour. Baron remained
at that job, and at that rate, until the pay period ending Decem-
ber 15, when he was sent to the Orange Elementary School
project, also at $21 per hour. Baron remained at the Orange
Elementary School job until the pay period ending January 26,
when he was sent to the Respondent’s Streetsboro project at
$22.05, reflecting the 5 percent premium that the Respondent
pays to foremen-in-charge. Baron continued to work at the
Streetsboro project through the pay period ending September 7,
at the $22.05 rate (except for short periods when he was sent to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
978
other projects, including Wadsworth, to work at $21 per hour).
During the pay period ending September 14, Baron was trans-
ferred to the Respondent’s H.H. Gregg project, also at the
$22.05 rate. According to the General Counsel’s Exhibit 42,
Baron remained at the Gregg job, at that rate, until the pay pe-
riod ending October 5.
Baron testified that at the Medina High School project, he
was a “subforeman,” but the job was “overmanned,” and he did
only journeymen’s work there. Baron also worked “with the
tools” at the Respondent’s Orange Elementary School project.
Baron testified that he was “in charge of an area” and had a
crew of “one or two,” but he reported to “head foreman” Carl
Carnish. Baron testified that if he saw some employee doing
something wrong, he would inform Carnish who would take
action. Baron testified that, as the foreman-in-charge of the
Streetsboro project, he had an average of six employees on his
crew, but that number sometimes got as high as eight. Baron
testified that Jim Pavlik was the project manager to whom he
reported, but he was in contact with Pavlik only “a couple of
times a week.” When asked to describe his duties as the fore-
man-in-charge at the Streetsboro project, Baron testified:
Everything from layout of the job, coordination be-
tween our trade, the general contractor, and the other con-
tractors. Attend the job meetings as needed, ordering of
materials, ordering of manpower, laying out all the work
for the men, the “where and how much and whys” for all
aspects of the job, including the daily logbook entries, pa-
perwork that was necessary for our company, as well as
the general contractor. . . . Daily safety log checklist that
had to be maintained, as well as our quarterly safety
checklist, as well as any other safety documents that might
be required or apply to what we’re doing out there regard-
ing lifts, and whatnot.
Disciplinary action, if necessary. That’s about it. . . .
Baron testified that he once asked Pavlik to remove a tempo-
rary employee from the Streetsboro job because the employee
had not appeared for work for a day-and-a-half. Pavlik did
remove the employee. Baron testified that he attended weekly
foremen’s meetings with the general contractor at which he
represented the Respondent. Baron testified that at the H.H.
Gregg job he had the same responsibilities that he did at the
Streetsboro project. On cross-examination, Baron acknowl-
edged that he worked with his tools “at least 50 to 75 percent”
of the time at the Streetsboro project. Baron further testified
that at the Medina High School job there were six electricians,
including himself and Harry Lathrop, the foreman-in-charge.
Baron acknowledged that five of those six electricians were
classified by the Respondent as foremen. Baron was further
asked and he testified:
Q. Okay. So other than Harry, the others were not, to
your observation, supervising anything; correct?
A. No.
Baron further admitted that at the Wadsworth Elementary
School project Pointkowski (who, again, is classified by the
Respondent as an apprentice) was the foreman-in-charge.
(2) Debalski, the third foreman whom the Respondent called
as its witness, was hired as a foreman on November 16. Debal-
ski had extensive experience in the electrical contracting indus-
try, including a great deal of supervisory experience. After
Debalski had undergone an interview and some tests (similar to
those described by Ockuly), Delon told him that the Respon-
dent was seeking individuals to be its foremen on projects that
it had coming up in Louisiana. AT&T was having built in re-
mote areas of that state several one-story buildings, each of
which was to be about 30-by-50 feet. The buildings (which
were to be built according to precise AT&T specifications)
were to serve as booster stations for AT&T’s cell-phone trans-
missions in the area. The Respondent had contracted to do the
wiring of the buildings. (The buildings supported transmission
towers, but none of the Respondent’s work was on the towers
themselves; nevertheless, Debalski often called the projects
“cell towers,” and the Respondent’s witnesses called the pro-
jects “cell-tower work.”)
The General Counsel’s Exhibit 42 reflects that Debalski be-
gan working at the Respondent’s Governor’s Village project, at
$19 per hour, during the pay period ending December 1. De-
balski remained at that site, at that rate, until the pay period
ending December 22, when he was raised to $19.95 per hour.
During the pay period ending February 2, Debalski was trans-
ferred to the Respondent’s Honeywell job, continuing at the
$19.95 per hour rate. During the pay period ending February 9,
Debalski worked at the same rate at the Respondent’s “AT&T
Rotterdam, NY” project. During the pay period ending Febru-
ary 16, Debalski worked at several different projects, also at
$19.95. During the pay period ending February 23, Debalski
began working at the Louisiana projects at $21, which reflects
the 5 percent premium for foremen-in-charge (plus 5 cents).
Debalski continued in Louisiana, at that rate, through the pay
period ending June 15. The exhibit reflects no further employ-
ment by Debalski until the pay period ending September 21,
during which he began working at the Respondent’s
Wadsworth job at the $21-per-hour-rate. Debalski continued at
Wadsworth until the end of the exhibit’s coverage, the pay
period ending October 5.
Debalski testified that the Louisiana jobs were not ready to
start when he first was employed by the Respondent. Delon
sent Debalski immediately to the Respondent’s Governor’s
Island Retirement Home jobsite in Cleveland where he worked
for a week doing journeymen’s work under Foreman Bob
Hoopman. During the next week, Debalski took time off, and
then he returned to the Governor’s Island project. At some
point during the week before Debalski’s return to the Gover-
nor’s Island job, Hoopman became ill. Debalski testified on
direct examination that Delon then made him the foreman-in-
charge of the job, a position that he held for 2 weeks. On cross-
examination, however, Debalski admitted that he served as the
foreman for only 1 day before two other individuals came from
the Respondent’s Erie office to serve as the supervisors on the
job. Debalski then returned to doing journeymen’s work at
Governor’s Island.
Debalski remained at the Governor’s Island project until he
was sent to New York to train in the construction of AT&T
booster stations. In February, when Debalski went to Louisiana
BAY HARBOUR ELECTRIC
979
to begin working on the stations, he was given a truck, trailer,
and the tools that he would need. At the same time, the Re-
spondent also gave Michael Rumschlag, whom it had hired as a
foreman on November 10, similar equipment for working on
Louisiana booster stations. (As discussed infra, the Respondent
contends that Rumschlag, as well as Debalski, was a supervi-
sor; the General Counsel contends that neither Rumschlag nor
Debalski was a supervisor.) Debalski and Rumschlag then
drove their rigs to Louisiana.
Debalski testified that in Louisiana he and Rumschlag first
went together from one station-site to another, laying under-
ground wiring conduits and other underground components.
Construction crews (of other employers) came in behind them,
poured foundation slabs and assembled the prefabricated build-
ings. By the time that Debalski and Rumschlag finished the
underground electrical work of the last site, the first of the
buildings were ready for the above-ground electrical work. At
that point, Debalski and Rumschlag split up and went to differ-
ent groups of buildings to complete the remaining phases of the
electrical work that was required.
When Debalski went to a building to do the above-ground
electrical work, he notified the Respondent’s office of how
many employees he would need to work under him. Tim Pas-
tore, the Respondent’s project manager, arranged (from the Erie
office) for local temporary employment services to send out
employees. Debalski testified that he did the ordering of the
materials that the employees were to use on the jobs. When
asked on direct examination what his “position” at that point
was, Debalski replied:
I was the supervisor. I was the representative for Bay
Harbour, and it was my responsibility to complete all
work, get all inspections, and pretty much finish the job,
and that was my responsibility.
. . . I was over [the employees’] safety. I had the full
responsibility and coordinate[d] with other trades. I pretty
much had to run the job, basically. . . .
I had the prints and the spec books which I studied.
Basically, I had to direct them and get with them in the
morning and tell them exactly . . . what we needed to get
done for the day. And, basically, I would get with each
one of them and, tell them what was required of them, and
basically we would go from there.
Debalski testified that, while he was in Louisiana, he had the
authority to, and did, tell employees to redo work that was not
up to the Respondent’s (and AT&T’s) specifications; Debalski
further testified that he had Pastore replace two employees
because of “lack of productivity.”
Debalski further testified
that Pastore only visited the Louisiana sites twice during the
period that he was there.
Debalski signed a conditional offer of employment for fore-
man form on November 16, and he testified that the form accu-
rately described his duties as a foreman for the Respondent.
Debalski described a “foreman’s training course” that the Re-
spondent gave him after he was hired; the course was similar to
that which was described by Ockuly.
Debalski testified that Pastore told him that Rumschlag had
the same duties and authorities that he did, but Debalski did not
witness what Rumschlag actually did after they finished the
underground wiring of the booster stations together. Debalski
further testified that Rumschlag left Louisiana after 2 months.
Debalski testified that he believed that the Respondent replaced
Rumschlag with Finnell, and Debalski testified that he believed
that Finnell had the same authorities as Rumschlag, but he did
not testify where he got those impressions, and he did not ob-
serve what Finnell actually did on the sites that Rumschlag did
not finish. (The Respondent contends that Finnell was also a
supervisor; the General Counsel denies it.) After Debalski
finished his work in Louisiana, he returned to the Ohio area, but
he has not been the foreman-in-charge of any more jobs. De-
balski’s next assignment after Louisiana was working on the
Respondent’s Wadsworth project in Ohio. Debalski testified
that Ryan Pointkowski was the foreman-in-charge on that job.
(The Respondent, again, classifies Pointkowski as an appren-
tice.)
(3) Bechhold, the fourth foreman whom the Respondent
called as its witness, was hired as a foreman on December 1.
Bechhold had worked in supervisory positions since 1979, in-
cluding for a time being the owner of his own electrical con-
tracting business. The General Counsel’s Exhibit 42 reflects
that Bechhold began working at the Respondent’s Solon High
School project, at $21 per hour, during the pay period ending
December 15.
During the pay period ending January 5,
Bechhold worked at the Visintainer Middle School project, also
at $21.
During the pay period ending January 12, however,
Bechhold was raised to $22.05 per hour at the Visintainer job,
reflecting the 5 percent premium that foremen-in-charge re-
ceive. With only occasional assignments to other jobs at $21
per hour, Bechhold remained at the Visintainer job, at the
$22.05 rate until the pay period ending October 5 (the end of
the exhibit). During that pay period, Bechhold also began
working at the Respondent’s Hilltop job, at $22.05.
At the Solon High School project, Bechhold did journey-
men’s work under Rick Gagliardo who was the foreman who
was “running the job.” When Bechhold went to the Visintainer
jobsite, he was designated to be the foreman who was “running
the job.”
There were “four to six” electricians on the job;
Bechhold testified that, as foreman-in-charge, he met with rep-
resentatives of the general contractor and other contractors on
the job to change and coordinate schedules; he planned the
work of his crew for as much as 3 weeks in advance, ordered
supplies that would be used, and scheduled the work for each
employee for each day. When he needed more, or fewer, em-
ployees he called the office and had employees added or re-
moved.
When asked what his authority to discipline was,
Bechhold replied:
If I suggest for somebody to wear safety glasses, and they
don’t wear safety glasses they’re going back to the shop. I
mean I’m gonna send them back to the office and . . . then if
there’s any question I’d be more than willing to go into the of-
fice and discuss it with somebody. But . . . I’ve not run across
that problem. Most people respect me enough out in the field
[that] if there’s any kind of a question they’ll respond to my
suggestions right away.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
980
At the Respondent’s Hilltop Gymnasium job, Bechhold has
had as many as “four, maybe five” electricians reporting to
him, but at time of trial there was only one. Bechhold testified
that he has had the same responsibilities at the Hilltop job as he
did at the Visintainer project. Between the Visintainer and the
Hilltop jobs, and at some points during those jobs when work
was slack, he went to other of the Respondent’s jobs where he
did only journeymen’s work because he was not, on those jobs,
the foreman-in-charge.
Bechhold identified a conditional offer of employment for
foreman form that he signed on the day he was hired, Decem-
ber 1. Bechhold testified that the form accurately described “a
part” of what he thought he would be doing as a foreman for
the Respondent. Bechhold testified that a foremen’s class that
he attended was scheduled to be 1 day, but it went into a sec-
ond; topics such as foremen’s paperwork and jobsite safety
responsibilities were heavily emphasized.
b. Foremen who did not testify
The Respondent contends that four individuals who did not
testify were hired as supervisors during the November-to-
January period. Those individuals were Kopec, Rumschlag,
Patalon, and Finnell who were hired on November 3 and 8,
December 8, and January 18, respectively.
(Patalon is still
employed by the Respondent; Kopec, Rumschlag, and Finnell
are not.) The General Counsel contends that, even if the Re-
spondent did designate these individuals as foremen, they were
never supervisors under Section 2(11) and that their hiring (as
well as the hiring of the other disputed supervisors) in place of
the alleged discriminatees is evidence of unlawful discrimina-
tion.
(1) Kopec was not mentioned during the Respondent’s pres-
entation of evidence, even though the Respondent agreed dur-
ing the presentation of the General Counsel’s evidence that it
had hired Kopec as a foreman,21 and even though Switzer testi-
fied during the General Counsel’s case that Kopec had attended
a foremen’s training session that he (Switzer) had attended.
Specifically, the Respondent did not offer any conditional offer
of employment for foreman form that Kopec may have signed,
and it did not offer any evidence that Kopec was ever a fore-
man-in-charge of any job (or even a head of a crew under a
foreman-in-charge); presumably, if such evidence had existed,
the Respondent would have presented it.
During cross-
examination, the Respondent’s witness Ockuly testified that he
was once on a job where Pointkowski (who, again, the Respon-
dent classified as an apprentice) was the foreman-in-charge.
On that job Kopec was in a three-member crew with Ockuly.
When asked specifically if Kopec was there as a foreman, jour-
neyman or apprentice, Ockuly replied, “journeyman.”
(2) Rumschlag did sign a conditional offer of employment
for foreman form when he was hired on November 10. As
noted, Debalski testified that Pastore, the project manager of
the Louisiana booster-station projects, told him that Rumschlag
was to have the same authority over employees that Debalski
had. However, Debalski conceded that he was never present if
and when Rumschlag had employees reporting to him. Pastore
21 See the GC Exh. 39.
did not testify. As Rumschlag also did not testify, there is no
evidence that he ever exercised any supervisory authority that
he may have possessed.
According to the General Counsel’s Exhibit 42, Rumschlag
began working for the Respondent during the pay period ending
November 17; his wage rate was $20 per hour, and he contin-
ued at that rate until the pay period ending January 12, when he
was raised to $21 per hour for work at projects named “Sprint
Boardman Ballfield,”
“American Tower Nashville,”
and
“American Tower Lewis Run.” (Other than the name “Nash-
ville,” there is no indication where these projects were located.)
Rumschlag’s raise from $20 to $21 is 5 percent, but the Re-
spondent does not contend that Rumschlag acted as a supervi-
sor at any time before he went to the Louisiana jobs.
Rumschlag went to the Louisiana jobs during the pay period
ending February 2, and he continued to be paid $21 per hour.
The last entry for Rumschlag in the exhibit is for his work in
Louisiana during the pay period ending April 20, when he
ceased his employment with the Respondent. (According to the
General Counsel’s Exhibit 39, Rumschlag resigned on April
13.)
(3) Patalon also signed a conditional offer of employment for
foreman form upon his being hired as a foreman on December
8, and he did attend a foremen’s training session. The Respon-
dent concedes that Patalon was never a foreman-in-charge of a
job; however, it relies on Ockuly’s testimony that, when he was
foreman-in-charge of the H.H. Gregg job, he placed Patalon in
charge of a crew. Ockuly testified that he told Patalon that he
had the same authority as head of that crew that he (Ockuly)
had over the whole job. Ockuly did not testify how large the
crew was, or how long Patalon maintained whatever authority
that he invested in Patalon, or that he witnessed Patalon taking
any action as supervisor of a crew. Finally, Ockuly testified
that Patalon was currently working with him at the Respon-
dent’s Topps Grocery Store job where Patalon is a subordinate
foreman; neither Ockuly nor Patalon has been the foreman-in-
charge of the Topps job.
(4) Finnell, the fourth foreman who did not testify, also
signed a conditional offer of employment for foreman form on
January 18, and Savoia testified that the Respondent expected
him to act for it as a supervisor. As noted, Debalski testified
that when Rumschlag left the Louisiana project and returned to
Ohio on April 13, Finnell apparently took Rumschlag’s place.
Debalski testified that he had the impression that Finnell had a
crew working under him, but there is no evidence of how De-
balski came under that impression. (Again, the Respondent did
not call Pastore, the project manager of the Louisiana jobs, to
testify.) As quoted above in the discussion of Ockuly, how-
ever, the General Counsel’s witness Watkins testified that Fin-
nell was once his foreman-in-charge and, as such, Finnell’s
responsibilities included “assigning job tasks for anybody on
the job, ordering in material, turning in time for everybody on
the job.” Watkins further testified that he reported to Finnell
and that he considered Finnell to be his supervisor.
BAY HARBOUR ELECTRIC
981
c. The Respondent’s evidence about foremen who
testified for the General Counsel
As noted, Switzer, Zill, and Hovanec testified for the Gen-
eral Counsel that, although they were told that they were being
hired as foremen, they never functioned as supervisors. Savoia
testified that the Respondent hired Zill, Switzer, and Hovanec
as statutory supervisors but that the downturn in available jobs
decreased their opportunities to be a foreman-in-charge of any
project. Savoia further testified that Zill had not been, and
perhaps would not ever be, a foreman-in-charge because he
twice had to be reminded to wear his hard hat, and:
He didn’t display leadership with the safety hard hat, not
wanting to wear that. So he wasn’t leading by example, and
he . . . was involved in a generator blow-up which the owners
of the Company were not exactly favorable to that. And,
“Will he ever run a job?” Maybe; not at that time. Milton has
to pretty much prove himself to be a leader, to have his own
job, and run his own job.
Edward Savoia is a foreman; he is an undisputed supervisor
who was hired before the events of this case, and he is the hus-
band of Human Resources Director Sherry Savoia. Edward
Savoia testified that from January through March, he was the
foreman-in-charge at the Respondent’s Honeywell project,
which job he categorized as an “industrial” job (as opposed to a
commercial or residential job). Both Switzer and Hovanec
reported to Savoia at that job. (Savoia did not testify that either
Switzer or Hovanec had crews that reported directly to them at
the Honeywell job.) Savoia testified that Switzer reported to
work on two occasions without a hard hat. Savoia further testi-
fied that he once assigned Switzer to run a rigid conduit but “he
wasn’t very good at it.”
Savoia had an apprentice redo
Switzer’s conduit work. Edward Savoia did not testify that he
told Sherry Savoia these facts; he testified only: “Well, I told
her that he was weak.”
Edward Savoia further testified that
Hovanec had insufficient industrial experience to be “on the A-
Team” for industrial jobs and that he told Sherry Savoia such.
Sherry Savoia agreed that Edward Savoia gave her these re-
ports about Hovanec and Switzer. She testified that, based on
Edward Savoia’s reports, the Respondent has concluded that
Hovanec “needed some training; he had to gain some further
knowledge in the trade” before he could be made a foreman-in-
charge of any project. Sherry Savoia did not testify that Ed-
ward Savoia’s reports about Switzer caused the Respondent not
to give him assignments as a foreman-in-charge.22
Robert Ockuly (whom the Respondent contends was a su-
pervisor) testified that he had occasionally worked with Switzer
on jobsites. Ockuly testified that Switzer appeared disinter-
ested in his work and that he reported that fact to Savoia. The
Respondent assigns that alleged disinterest as part of the reason
(along with an economic downturn) for never designating
Switzer as a foreman-in-charge of any project.
22 Savoia did not testify that she made the decisions as to which
foremen got assignments as foremen-in-charge, but the General Coun-
sel did not object to her testimony about why such assignments were
made.
If Savoia is an electrician, or if she ever directly supervised
electricians’ work, no mention thereof was made at trial.
D. Analysis and Conclusions
1. The statuses of the alleged supervisors
The burden of proving that an individual is a supervisor
within the meaning of the Act is upon the party that takes that
position.23 The Respondent contends that it has proved that all
of the individuals whom it hired as foremen during the Novem-
ber-to-January period were supervisors within Section 2(11).
The General Counsel contends that the Respondent has failed to
prove that any of them were. I agree completely with neither
position.
I find below that the Respondent has shown that it placed 4
individuals in the position of a foreman-in-charge of jobsites
and that it thereupon vested those individuals with Section
2(11) authorities. Those individuals are: (1) Ockuly, who was
hired on November 3, and became a foreman-in-charge at the
Staples job on or about November 24 (the first day of the pay
period ending December 1, according to the General Counsel’s
Exhibit 42); (2) Baron, who was hired on November 3, and
became the foreman-in-charge of the Streetsboro job on Janu-
ary 19; (3) Debalski, who was hired on November 16, and be-
came the foreman-in-charge of some of the Louisiana jobs on
February 16; and (4) Bechhold, who was hired on December 1,
and became the foreman-in-charge of the Visintainer job on
January 5.
Although the Respondent claims that it made
Rumschlag and Finnell foremen-in-charge of various jobs, I
find that it has not shown that it did so, and I find that it has not
shown that it vested them with any supervisory authorities.
Finally, the Respondent does not contend that it made Switzer,
Zill, Hovanec, Patalon, and Kopec foremen-in-charge at any
point, and I find that the Respondent has not shown that it ever
vested them with any Section 2(11) authorities.
a. Those not contended to have been made
foremen-in-charge
The Respondent relies heavily on its conditional offer of em-
ployment for foreman form as proof that anyone who signed
one automatically becomes a supervisor. The cases of Switzer,
Zill, and Hovanec immediately defeat that proposition.
The first thing to be noticed about Switzer’s hiring as a fore-
man is that Delon did not offer him a conditional offer of em-
ployment for foreman form when he hired him. Then, begin-
ning after 5 months of Switzer’s doing only journeyman’s
work, Savoia repeatedly tendered to him for signing copies of
its conditional offer of employment for apprentice electrician
form and copies of the job description of apprentices. On brief,
the Respondent makes no suggestion of why it failed to tender
Switzer the foreman’s forms when he was hired or why it re-
peatedly sent him the apprentice’s forms. Savoia did not testify
that she sent the apprentice’s forms to Switzer in error, and
Savoia did not send the foreman’s job description to Switzer
until after the charges were filed herein. (Then, after sending
the foreman’s job description to Switzer, Savoia again sent him
another apprentice’s form.)
The apprentice’s job description form that Savoia repeatedly
sent to Switzer is revealing. It tells apprentices that they are
23 NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706
(2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
982
responsible for (to name just a few): “Project Management”
(“Completes project on time and budget); “Leadership” (“Ef-
fectively influences actions and opinions of others; Inspires
respect and trust; Accepts feedback from others; Provides vi-
sion and inspiration to peers and subordinates” (Emphasis sup-
plied.); “Business Acumen,” “Ethics” (“Upholds organizational
values”); “Attendance/Punctuality” (insuring that “work re-
sponsibilities are covered when absent”); and “Plan-
ning/Organizing” (“Organizes or schedules other people and
their tasks; Develops realistic action plans”). Reading these
responsibilities for apprentices, one wonders what responsibili-
ties would be left for supervisors. Then one reads in the ap-
prentice’s job description: “Supervisory Responsibilities: This
job usually has no supervisory responsibilities; however, from
time to time may directly supervise electricians and carry out
responsibilities as an electrician foreman.”
That is, the Re-
spondent considers apprentices to be at least substitute supervi-
sors.24 Except for this last clause, the “Competency” section of
the foremen’s job description is identical to that of the appren-
tices. That is, apprentices and foremen are entirely fungible in
the Respondent’s system. This would explain why four appren-
tices had starting wage rates as high as, or higher than, the
$16.50 per hour rate that alleged Foremen Switzer and Zill
received. (Watkins and Marshall Pennington were paid $16.50;
Lawrence Ilench, $18.50; and John Kemmer, $17.50.)
On
brief, the Respondent makes no attempt to explain how this
inverted pay system could exist if the title of “foreman” has any
significance.25 Moreover, Savoia’s testimony makes clear that
signing the foreman’s forms did not make one a supervisor for
the Respondent. Zill signed one, but Savoia testified that “Mil-
ton has to pretty much prove himself to be a leader, to have his
own job, and run his own job.”
And Hovanec, according to
Savoia, “needed some training; he had to gain some further
knowledge in the trade” before he could be made a foreman-in-
charge of any project. Also, when Sullivan presented the fore-
man’s job description to Hovanec, he told Hovanec, “if you
want the chance to be a foreman, you have to sign this form,”
thus acknowledging that Hovanec had not been a foreman (or
supervisor) until that point.
All of which is to say that the Respondent’s actions rendered
meaningless its “paper authorities” for its foremen.26
24 The case of Pointkowski shows that the Respondent also considers
some apprentices to be regular supervisors, but Pointkowski is not the
only one. Several more are listed on the CP Exh. 11. When examined
on that exhibit Savoia was asked and she testified:
Q. So is it your testimony you can be both an apprentice and
a foreman at the same time?
A. Yes. At Bay Harbour, you can be, yes.
25 This is true even though I emphasized the significance of this fac-
tor when stated at trial, as I was overruling a series of the Respondent’s
objections: “Mr. Powell, if all foremen made more money than all
apprentices, we wouldn’t be doing this.” (The General Counsel did not
develop whether the Respondent paid any of its journeymen more than
Switzer and Zill or whether it paid any of its journeymen more that it
paid the remainder of the alleged foremen.)
26 See Eventide South, 239 NLRB 287 fn. 3 (1978), and Pine Manor
Nursing Home, 238 NLRB 1654, 1655 (1978). To be distinguished are
cases that are cited by the Respondent such as Ohio Power Co. v.
NLRB, 176 F.2d 385, 388 (6th Cir. 1949), where possession of supervi-
Switzer and Kopec did not sign conditional offer of em-
ployment for foreman forms, and the Respondent does make
the argument that they had even paper authority to act as a su-
pervisor. Aside from apparently routine instructions to redo
work that they may have issued to lesser-experienced journey-
men and to apprentices, paper authority is the only basis for the
Respondent’s argument that Zill and Hovanec were supervi-
sors. The only evidence, in addition to paper authority, that the
Respondent relies upon for the proposition that Patalon was a
supervisor is Ockuly’s uncorroborated testimony that he put
Patalon in charge of an area at each of two projects. Ockuly
did not offer testimony that he had been vested with authority
by anyone higher in authority than himself to make another
employee a supervisor, and Ockuly himself was not even the
foreman-in-charge on one of the projects (Topps). Certainly,
no supervisor above Ockuly (such as the foreman-in-charge or
the project manager) told the employees that Patalon was,
somehow, their supervisor. Finally on this point, it is to be
noted that, although the Respondent contends that Patalon was,
and is, its supervisor, it did not call him to testify. I draw an
adverse inference against the Respondent for its failure to do
so,27 and I find that, had the Respondent called Patalon, his
testimony would have been inconsistent with the Respondent’s
position and representations.
In summary, the Respondent has failed to show that Switzer,
Zill, Hovanec, Patalon, or Kopec ever possessed authority be-
yond that of a routine nature; at minimum, it failed to show that
those individuals, although designated as foremen, possessed
authorities the exercise of which required independent judg-
ment as required by Section 2(11).
I therefore find that
Switzer, Zill, Hovanec, Patalon, and Kopec, the foremen whom
the Respondent does not claim to have ever become foremen-
in-charge of any jobs, were never made supervisors within the
meaning of the Act.
b. Those found never to have been made foremen-in-charge
The Respondent contends that Rumschlag and Finnell were
hired as supervisors, but it called neither to testify, and for its
contentions it relies solely on: (1) the discreditable paper au-
thorities that Rumschlag and Finnell signed, (2) the testimonies
of Debalski and Savoia, and (3) a seeming admission by Charg-
ing Party Watkins.
Debalski testified that Pastore, a project manager who did
not testify, told him that Rumschlag had the same authorities
that he (Debalski) had on the Louisiana projects. I am not re-
quired to rely on this hearsay conclusion, and I do not. More-
over, it is to be noted that Rumschlag did not even receive the 5
percent premium that foremen-in-charge received when he
went to Louisiana. And, although the Respondent adduced
sory authorities by certain “control operators” was demonstrated and
only “the frequency of their exercise” was questioned. Also to be dis-
tinguished is E. I. du Pont de Nemours & Co., 210 NLRB 395, 396
(1974), where the parties stipulated that certain “relief foremen” pos-
sessed supervisory authorities and the only question was the signifi-
cance of the fact that they would not retain those authorities indefi-
nitely.
27 See the discussion of the principle of International Automated
Machines, 285 NLRB 1122 (1987), infra.
BAY HARBOUR ELECTRIC
983
evidence that foremen-in-charge generated a great deal of pa-
perwork in exercising their authorities (as detailed in the dis-
cussion of Ockuly’s case), it did not attempt to corroborate
Debalski’s testimony with any documents that Rumschlag
would have generated if he actually had been a foreman-in-
charge.
Finnell was hired on January 18, and Debalski testified that
Finnell came to Louisiana after Rumschlag resigned on April
13. The Respondent relies on Savoia’s testimony that Finnell
“was brought in as a foreman . . . to perform as a foreman on
the Louisiana cell-tower projects, and he did.” This testimony
is at least hearsay, and it is probative of nothing. Savoia did not
testify that she made the decision to send Finnell to Louisiana,
and she did not testify who did make that decision. As well,
Savoia concludes that Finnell acted as a foreman, but she did
not, and she could not (from her vantage point in Erie), testify
that Finnell ever possessed any authorities of a supervisor.
Certainly, she did not testify to anything specific that Finnell
might have done that would indicate that he possessed supervi-
sory status. And, as in Rumschlag’s case, the Respondent made
no attempt to corroborate Savoia’s testimony by offering some
documents that Finnell would have generated if he had actually
been a foreman-in-charge. Nor did the Respondent offer the
testimony of Pastore to corroborate Savoia’s testimony about
Finnell, and it did not offer any documentation (or testimony)
that Finnell ever received the 5 percent foremen-in-charge
wage premium when he was in Louisiana. Watkins did testify
that Finnell had been his foreman-in-charge on some unnamed
job, but Watkins would necessarily have been referring to a
point before Finnell went to Louisiana because Watkins was
discharged on April 9 (and, again, Finnell did not go to Louisi-
ana until after April 13). Nevertheless, not even Savoia testi-
fied that Finnell was a foreman-in-charge before he went to
Louisiana. Savoia assuredly would have done so if Watkins’
impression that Finnell had once been his foreman-in-charge
had some basis in fact.
I therefore find that the Respondent has not proved that ei-
ther Rumschlag or Finnell was a supervisor within the meaning
of Section 2(11) at any relevant time.
c. Those who were made foremen-in-charge
The Respondent has shown that Ockuly, Baron, Debalski,
and Bechhold, at least at some point, each became a foreman-
in-charge of one of the Respondent’s projects. On the basis of
the specific factors that I mention in the immediately following
paragraphs, I find that, when these individuals did become
foremen-in-charge for the Respondent, they became supervisors
within the meaning of Section 2(11).
Ockuly was made a foreman-in-charge at the Staples job on
November 24, within a month after he had been hired on No-
vember 3. At the time, Ockuly was given a wage increase of 5
percent which reflected the premium that the Respondent paid
those who were accepting responsibilities above those of jour-
neymen (and apprentices). Ockuly testified that as the fore-
man-in-charge of the Staples job he made recommendations to
Chisholm when the numbers of employees on that job were to
be increased or decreased and that Chisholm followed those
recommendations. By recommending that the number of em-
ployees on a job be decreased, Ockuly was necessarily exercis-
ing the authority to lay off employees, if not to discharge them,
within the meaning of Section 2(11). Ockuly further testified
that he assigned job tasks to employees on the Staples job based
on his estimation of their skill and experience. Chisholm was
rarely present, and, as the General Counsel suggests no other
person on the job who could have made such assignments, it is
clear that Ockuly was assigning work within the meaning of
Section 2(11). Although Ockuly never disciplined employees,
he was at least given the forms to warn them (the employee
counseling notes forms), and this is a strong suggestion that he
had the authority to discipline employees within the meaning of
Section 2(11). Charging Party Watkins testified that Ockuly
was one of the foremen-in-charge who was responsible for
“assigning job tasks for anybody on the job, ordering in mate-
rial, turning in time for everybody on the job.” And the Gen-
eral Counsel’s witness Switzer admitted that on the Staples job
Ockuly assigned and directed his work and was responsible for
keeping all other employees at work, as well. Again, project
managers were seldom present on the Respondent’s projects,
and only foremen-in-charge were there to deal with general
(and other) contractors, and Switzer admitted it was Ockuly
who regularly dealt with the general contractor on behalf of the
Respondent at the Staples job. Ockuly testified that he had the
same responsibilities at the H.H. Gregg job where he became
the foreman-in-charge on August 17.
Baron was made foreman-in-charge at the Streetsboro job on
January 19, within about 2-1/2 months after he had been hired
on November 3. At the time, Baron was also given the 5 per-
cent premium that the Respondent grants to foremen-in-charge.
Baron testified that at the Streetsboro job, he attended weekly
foremen’s meeting with the general contractor. Baron testified
that Pavlik, the project manager, was present only about twice a
week, and it was left to Baron to assign all work to the employ-
ees, to complete all relevant paperwork, and to discipline the
employees as well as to deal with the general contractor. Baron
further effectively recommended the discharge (or, at least,
transfer) of one employee who had poor attendance.
Debalski was made foreman-in-charge of the Louisiana pro-
jects on February 16, 3 months after he had been hired on De-
cember 16. At the time, Debalski was also given the 5 percent
premium that the Respondent grants to foremen-in-charge.
Debalski directed the temporary employees in fulfilling
AT&T’s precise specifications for the above-ground wiring of
the buildings.
Pastore, the project manager who visited the
Louisiana sites only twice while Debalski was there, discharged
or laid off two employees on Debalski’s recommendations.
Bechhold was made foreman-in-charge of the Visintainer
School project on January 5, about a month after he had been
hired on December 1. During the year that Bechhold was the
foreman-in-charge at the Visintainer project, he met with repre-
sentatives of the general contractor and other contractors on the
job to change and coordinate schedules, planned the work of his
crew for as much as 3 weeks in advance, ordered supplies that
would be used, and scheduled the work for each employee for
each day. When he needed more, or fewer, employees he
called the office and had employees added or removed. Wat-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
984
kins named Bechhold, as well as Ockuly, as one of the fore-
men-in-charge who had been his supervisor.
The General Counsel disputes none of these facts that are
critical to the determination of the statuses of Ockuly, Baron,
Debalski, and Bechhold. Nor does the General Counsel dispute
his witness Hovanec’s testimony that foremen-in-charge “use a
lot of judgment . . . [i]n terms of being able to manage the pro-
ject successfully to conclusion, . . . make decisions about when
to order materials in advance so that the materials get to the
jobsite in a timely basis, . . . make decisions about how to use
the crew skills in a way to most efficiently complete the pro-
ject, . . . assign one person to one area based upon [his] assess-
ment of that person’s strengths or weaknesses, and assign a
different person to another portion of the project based upon
[his] assessment of that [other] person’s strengths and weak-
nesses.”
Nor does the General Counsel dispute Hovanec’s
conclusion that: “The day-to-day operations are the foreman’s
position.” The General Counsel points only to the facts that
Ockuly, Baron, Debalski, and Bechhold worked for substantial
periods with their tools and that they worked for periods as
journeymen on other jobs after they first became foremen-in-
charge. The General Counsel cites no case for the proposition
that manual labor disqualifies an individual from being a super-
visor and, on a construction site, it is not logically impossible
for an individual to supervise and work with his hands.
In summary, I find and conclude that the Respondent has
proved that Ockuly, Baron, Debalski, and Bechhold became
supervisors upon their being designated foremen-in-charge of
various projects, but I further find and conclude that the Re-
spondent has not proved that Switzer, Zill, Hovanec, Patalon,
Kopec, Rumschlag, or Finnell ever became a supervisor within
the meaning of Section 2(11).
2. The alleged threats
The Respondent contends that nothing that its agents said to
the alleged discriminatees and Albano could have violated Sec-
tion 8(a)(1) because all of those witnesses testified that they
were applying for foremen’s jobs and those jobs were supervi-
sory. In making this argument, the Respondent ignores the
testimony of Stock that he initially applied for a journeyman’s
job as well as a foreman’s job28 and that he later applied for an
apprentice’s job. Moreover, as I have found above, some (in
fact, the majority) of the foremen’s positions that the Respon-
dent was filling in the November-to-January period were non-
supervisory. Also, a layman’s testimony that he was applying
for a “foreman’s” position, or even a “supervisor’s” position,
does not require the inference that he would have accepted a
job only if he was to be given at least one of the authorities
enumerated by Section 2(11). Without admissions or other
evidence that the applicants required such authority as a condi-
tion precedent to accepting employment with the Respondent, I
would not find that they would only have accepted positions as
statutory supervisors. Nor is the Respondent to be excused on
all counts because the applicants may have told Delon or Sa-
28 As well as placing the term “electrician/foreman” on the resume
that he faxed to Delon on November 7, Stock testified that he told
Delon on December 1, that he was “just looking for a job as an electri-
cian.”
voia that they were looking for “a foreman’s position” or “a
supervisor’s position.”
The Respondent had advertised for
“supervisors/foremen,” and applicants can only be expected to
pattern their phraseology to be consistent with what a prospec-
tive employer says that it is looking for. Again, it is the nature
of the job, supervisory or nonsupervisory, that determines the
issue. I therefore conclude that the applicants were employees
who were protected by Section 7 of the Act and that the Re-
spondent was not free to coerce them in violation of Section
8(a)(1).
a. Threats by Delon and Savoia
Charging Party Watkins did not apply for one of the adver-
tised “supervisors/foremen” positions; Watkins applied for a
journeyman’s position, and the Respondent hired him as an
apprentice. On December 29, Delon conducted an employee
orientation meeting that Watkins attended. Watkins testified
that during that meeting Delon “stated that Bay Harbour was a
nonunion company and always would be a nonunion company.
If anybody was a salt, organizer, or otherwise affiliated with the
Union, they would find out about it and deal with it at that
time.” Because Delon did not testify, this testimony is not dis-
puted,29 and I found it credible. I agree with the General Coun-
sel that Delon’s statement that the Respondent would “deal”
with any employee who was found to be affiliated with the
Union was a threat of unspecified reprisals against any such
employee. I therefore conclude that by Delon’s threat the Re-
spondent violated Section 8(a)(1).30
On December 5, when Delon told Zill that he was hired as a
foreman, he also told Zill that he could not “be an organizer”
because he was then becoming a part of management. As I
have found, Zill was not hired as a supervisor; he was hired as
an employee. Telling an employee, or an employee-applicant,
that he has been hired but that he may not be an organizer is an
instruction against his engaging in union activities during his
tenure of employment. As such, it is a violation of Section
8(a)(1), as I find and conclude.
On January 31, when Albano was being interviewed by
Delon and Savoia, Savoia told him that “when the Union guys
come here they take our men away from us.” Delon did not
testify; Savoia testified, but she did not deny making this re-
mark, and I found Albano’s testimony on the point to be credi-
ble. The complaint alleges that by Savoia’s remark the Re-
spondent violated Section 8(a)(1) because Savoia therein in-
formed an applicant that the Respondent “was opposed to hir-
ing union-affiliated employees.”
Section 8(c) provides that
“[t]he expressing of any views, argument, or opinion . . . shall
not constitute or be evidence of an unfair labor practice under
any of the provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit.”
Savoia’s
29 Contrary to the Respondent’s assertion on brief, there is no factual
denial Savoia’s testimony that neither she nor Delon would have made
such a threat. Savoia was not present when Delon spoke at Watkins’
orientation meeting.
30 H. B. Zachry Co., 332 NLRB 1178 (2000) (threat of unspecified
reprisals to tell employees that “there better not be any union organizers
out there” among some already-hired employees or the employer would
have “ways of getting around it.”).
BAY HARBOUR ELECTRIC
985
statement to Albano was clearly an expression of animus to-
ward union applicants, but the issue raised by the complaint is
whether it was also a violation of Section 8(a)(1) because it
contained a threat. Certainly, a law-abiding employer may be
opposed to employing union-affiliated applicants, and he may
say so unless he additionally threatens such applicants. This is
because such a statement, standing alone, leaves open the pos-
sibility that the employer will, despite his contrary inclinations,
comply with the law and either hire the prounion applicant or
refuse to employ him or her only for nondiscriminatory rea-
sons. Unless that employer effectively tells an applicant that he
will not hire him because of his union affiliation, however, the
employer does not threaten that applicant within Section
8(a)(1). I shall therefore recommend dismissal of this allega-
tion of the complaint.
According to Stock’s undenied and credible testimony, on
December 1, after he had filed a resume with the Respondent
stating that he was a professional union organizer, Delon told
him that he would not be considered for employment because
he was a union organizer. Even if applicants are also paid un-
ion organizers, they are employees within the meaning of Sec-
tion 2(3) of the Act.31
As I have found above, some of the
foremen’s jobs that the Respondent was seeking to fill were
supervisory, but most were not. Because Stock was applying
for a job that was not necessarily that of a supervisor within
Section 2(11), Delon’s statement was a threat not to hire Stock
as an employee because of his affiliation with the Union. And
by that statement the Respondent violated Section 8(a)(1).32
b. Threats by Chisholm
Albano testified that on December 16, the Respondent’s Pro-
ject Manager Chisholm told him that Anthony, the Respon-
dent’s president, “don’t like to hire union electricians” and that
“I don’t think they’d hire you because you’re a union electri-
cian.” The complaint alleges that by these statements the Re-
spondent violated Section 8(a)(1) because Chisholm therein
“informed a job applicant that Respondent preferred not to hire
applicants who are union affiliated.” Albano further testified
that on April 25, Chisholm told him that the Respondent “won’t
hire me because I’m a union electrician, directly to Bay Har-
bour.”
The complaint alleges that by this statement the Re-
spondent also violated Section 8(a)(1) because Chisholm
therein “informed a job applicant he had not been hired because
he was affiliated with the Union.” The Respondent did not call
Chisholm to deny either statement, but it did call Sciarrilli who
was present on both occasions and who denied that Chisholm
made either remark.
On the witness stand, Albano was not impressive. On direct
examination he was hesitant or occasionally had to be led, and
on cross-examination he was sometimes evasive or argumenta-
tive. Sciarrilli, however, was an assured witness who main-
tained a plausible demeanor at all times. Nevertheless, I cannot
ignore the fact that the Respondent did not call Chisholm whom
it currently employs as a manager. The Respondent offered no
31 NLRB v. Town & Country Electric, 516 U.S. 85 (1995).
32 H. B. Zachry Co., supra at 110 (threat to applicant that the em-
ployer was not offering any job applications because “the Union had
been out there the day before” violated Section 8(a)(1)).
reason at trial for not calling Chisholm, and it suggests none on
brief. Sciarrilli testified that, the night before he appeared,
Chisholm asked him to testify. The Respondent, however, did
not ask Sciarrilli if Chisholm was ill or otherwise physically
unable to appear himself. If Sciarrilli had known of any justifi-
able reason that Chisholm was not there himself, the Respon-
dent assuredly would have asked. (Even if the question neces-
sarily would have called for hearsay, the General Counsel may
not have objected.) Nor was there any inquiry of why Sciarrilli
was willing to come all the way from Erie to Cleveland to tes-
tify when Chisholm, himself, was not willing to do so. (After
all, Sciarrilli owns his own business; his absence for nonpro-
ductive reasons was probably not without its negative impact
on that business.) Of course, if Chisholm had been physically
unable to appear, the Respondent would have offered a physi-
cian’s testimony, or at least a statement, to prove the fact.
The question therefore becomes whether I should draw an
adverse inference against the Respondent for its failure to call
Chisholm as its witness. As stated in International Automated
Machines, 285 NLRB 1122 (1987):
Thus, while we recognize that an adverse inference is unwar-
ranted when both parties could have confidence in an avail-
able witness’ objectivity, it is warranted in the instant case,
where the missing witness is a member of management[] and
it supports the judge’s findings on the issues on which Davis’
[the missing manager’s] testimony would have been proba-
tive.
Chisholm is in upper management (being above all foremen-
in-charge), and the Respondent would have had every confi-
dence that he would have supported its position, unless Chis-
holm had told the Respondent otherwise. I therefore draw the
strongest adverse inference against the Respondent for its fail-
ure to call Chisholm to testify, and I credit Albano.33
Chisholm’s December 16 statement to Albano that Anthony
“don’t like to hire union electricians,” standing alone, would be
clear evidence of antiunion animus against applicants who are
members of labor organizations.34 Chisholm’s addition to that
statement that “I don’t think they’d hire you because you’re a
union electrician,” however, elevated the statement of animus
to a threat in violation of Section 8(a)(1) to refuse to hire Al-
bano because of his union membership. Also Chisholm’s tell-
ing Albano on April 25, that the Respondent “won’t” hire him
because he was a union-affiliated employee was an unabashed
threat in violation of Section 8(a)(1).
c. Threat by Anthony
Albano further testified that on April 24, he overheard a tele-
phone conversation between residential contractor Dobrich and
Anthony. In that conversation, according to Albano, Dobrich
told Anthony, “I have a friend of mine sitting here . . . Vinnie
Albano. He’s looking for work. . . . He’s [a] union electri-
33 There is the strongest suspicion that, although Chisholm was not
willing to lie under oath himself, he knew that Sciarrilli would.
34 NLRB v. FES, 301 F.3d 83 (3d Cir. 2002) (stating that the em-
ployer is “not interested” in hiring union applicants is evidence of
unlawful animus toward union-affiliated applicants, even if it is not an
independent violation of Section 8(a)(1)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
986
cian.” Then Anthony told Dobrich that the Respondent would
not hire Albano “directly” because “he’s a union electrician.”
Anthony further told Dobrich to hire Albano himself and sub-
contract him to work at one of the Respondent’s projects. And
that is what happened. Albano did go to work for Dobrich at
one of the Respondent’s projects, and he remained until Do-
brich told him that Savoia had said to get rid of him (shortly
after Albano wore a union T-shirt to work).
The Respondent did not present Anthony to deny Albano’s
testimony about the telephone conversation between him and
Dobrich, and I found Albano’s testimony about the conversa-
tion to be credible. The Respondent argues that Anthony would
have had no reason to believe that Albano could hear his re-
marks and that, because of that factor, no violation can be
found in Anthony’s statement that he would not hire Albano
“directly” because he was a union member. This argument is
nothing more than one that no violation can be found because
Anthony could not have intended that Albano hear his remarks.
Intent is not an issue in determining whether an employer’s
statement violates Section 8(a)(1); the issue is the tendency of
the statement to interfere with the free exercise of employee
rights.35 Moreover, Anthony had every reason to believe that
Albano was listening. Dobrich told Anthony that Albano was
(1) “a friend of mine” and that he was (2) “sitting here.” Be-
cause Dobrich told Anthony that Albano was “sitting here,”
Anthony necessarily knew that all Dobrich had to do was to
hold the telephone at an angle for Albano to hear what he (An-
thony) was going to say. Because Dobrich had told Anthony
that Albano was “a friend of mine,” Anthony would have had
every reason to believe that Dobrich would do exactly that.
And, even if it did not occur to Anthony that Albano could hear
both sides of the conversation, he had every reason to believe
that Dobrich would immediately repeat to Albano (again, his
“friend”) whatever Anthony said to Dobrich. The Respon-
dent’s defense is therefore factually, as well as legally, insuffi-
cient. I therefore find and conclude that, by Anthony’s state-
ment that he would not hire Albano (directly or otherwise)
“because he’s a union electrician,” the Respondent violated
Section 8(a)(1) because such a statement is a threat not to hire
employees because of their protected union activities.36
3. The alleged unlawful refusals to consider and hire
The complaint alleges that the Respondent, in violation of
Section 8(a)(3), refused to consider for hire, and refused to hire,
the nine alleged discriminatees. Through Savoia’s testimony
and by its statements on brief, the Respondent admits that it
refused to consider any of the alleged discriminatees whom it
knew to have union affiliations and that it did so because of
those affiliations.37
The Respondent attempts to defend its
35 See, for example, Hillhaven Rehabilitation Center, 325 NLRB
202, 204 (1997) (impact of a posted notice is the critical inquiry, not
the employer’s intent).
36 See Starcon, Inc., 323 NLRB 977 (1997) (threat that employer
“couldn’t hire direct[ly] because he had all that union organizing trou-
ble” violated Section 8(a)(1)).
37 Again, Savoia testified that it would have been a “conflict of inter-
est” if the Respondent had hired any union members (not just Stock).
On brief, p. 48, the Respondent states: “The undisputed evidence estab-
refusals on the ground that all of the positions for which the
alleged discriminatees applied were those of foremen who were
supervisors within Section 2(11). I have rejected that conten-
tion and found that at least some of the foremen’s positions that
the Respondent filled in the November-to-January period were
nonsupervisory. Therefore, the Respondent’s admissions that it
refused to consider the alleged discriminatees for employment
are tantamount to admissions of violations of Section 8(a)(3), at
least in the cases of those who were known by the Respondent
to have had union affiliations. The remaining issue, therefore,
is whether the Respondent, also in violation of Section 8(a)(3),
refused to hire the alleged discriminatees.
The Board in FES,38 held that to establish a prima facie Sec-
tion 8(a)(3) refusal-to-hire violation the General Counsel must
establish the following elements:(1) that the respondent was
hiring, or had concrete plans to hire, at the time of the alleged
unlawful conduct; (2) that the applicants had experience or
training relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that the
employer has not adhered uniformly to such requirements, or
that the requirements were themselves pretextual or were ap-
plied as a pretext for discrimination; and (3) that antiunion
animus contributed to the decision not to hire the applicants.
Once these elements are established, the burden shifts to the
Respondent to prove that it would have refused to hire the al-
leged discriminatees, even absent their known prounion sympa-
thies or affiliations.39
(1) As the Respondent advertised, and as it admitted at trial,
it had concrete plans to hire, at least during the November-to-
January period.40
(2) I have found that at least some of the
positions to be filled were those of nonsupervisory journeymen
electricians, and it is undisputed that all of the alleged discrimi-
natees had experience relevant to those positions. (3) I do not
find that evidence of antiunion animus exists in the Respon-
dent’s handbook’s statement, and in various statements by Sa-
voia, that the Respondent would use “all lawful means” to keep
a union out. The General Counsel cites no authority for the
proposition that such statements do constitute evidence of rele-
vant animus, and I feel that, if anything, these are expressions
that the Respondent will comply with the law. Evidence of
antiunion animus that contributed to the Respondent’s decisions
not to hire the alleged discriminatees (at least those known or
suspected by the Respondent to have union affiliations) is,
however, clear from evidence of: (a) the admitted refusal-to-
consider violations;41 (b) the threat by Anthony to Albano that
lishes that Bay Harbour was hiring foremen during the relevant time
period and that its foremen are supervisors under the Act. Under Board
precedent, Bay Harbour therefore was not prohibited from rejecting
union affiliated applicants for supervisory positions.” (Also, see coun-
sel’s record statement that is quoted at fn. 3.)
38 331 NLRB 9, 12 (2000).
39 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
40 Until the last paragraph of this section, when I discuss the May
and June reapplications of Hudson and Stock, I am referring to the
Respondent’s actions during the November-to-January period.
41 Watkins Engineers & Constructors, Inc., 333 NLRB 818, 819
(2001).
BAY HARBOUR ELECTRIC
987
he would not be hired because of his union affiliation; (c) the
threats by Chisholm to Albano that he would not be hired be-
cause of his union affiliation; (d) the threat by Delon to Stock
that he would not be hired because of his union affiliation; (e)
the threat by Delon that the Respondent would “deal” with
Watkins or any other employees if it discovered their union
affiliations after they were hired; (f) the instruction not to en-
gage in union activities that Delon issued to Zill (who was be-
ing hired for a nonsupervisory position); (g) the expressions of
animus by Chisholm and Savoia to Albano that the Respondent
did not wish to hire union-affiliated applicants; (h) the showing
of the film, “Little Card, Big Trouble,” which, according to
Watkins’ unchallenged testimony, “was telling you that if you
signed a union card for representation that it would end up be-
ing nothing but trouble for you and the Company.” (And the
theme of the video, according to Switzer’s unchallenged testi-
mony, was that union authorization cards caused troubles be-
tween employees who did, and did not, sign them.) The Gen-
eral Counsel has, therefore, established prima facie cases of
unlawful discrimination against the applicants who were known
by the Respondent to be affiliated with the Union.
I find that the General Counsel has not proved prima facie
violations in the Respondent’s refusals to consider and hire four
of the alleged discriminatees because the General Counsel did
not show that the Respondent knew that they had union affilia-
tions: (1) Beltz testified that in November he told Delon that he
had been employed by Hersh. Beltz testified (without corrobo-
ration) that Hersh was a union contractor in Cleveland, but he
did not testify that he told Delon that Hersh was a union con-
tractor, and he admitted on cross-examination that he did not
know how Delon, whose office is in Erie, could have known
that Hersh was a union contractor. (2) Beltz testified that on
November 7 he called Delon stating that he was working for
Loomis, but, like Beltz, he did not tell Delon that Loomis was a
union contractor or otherwise identify himself as a union mem-
ber. (3) Hudson testified that in November he called Delon’s
voice mail several times, but he did not testify that he men-
tioned the Union. (4) Tersigni spoke to Delon in early Novem-
ber, and later in November he left two voice mails with Delon’s
office. In none of these communications, however, did Ter-
signi mention that he was somehow affiliated with the Union. I
shall therefore recommend dismissal of the refusal-to-consider
allegations, and dismissal of the refusal-to-hire allegations, as
they relate to these four individuals.
The General Counsel has, however, proved that the Respon-
dent knew that five of the nine of the alleged discriminatees had
union affiliations or sympathies when the Respondent refused
to consider and hire them during the November-to-January
period: (1) On November 6, Stock told Delon that he was then
working “out of Local Union 306.”
(2) On November 29,
Aikey told Delon that he got his training with the IBEW, and
within the following week Aikey faxed a resume to Delon that
stated, in bold-faced type, that his “Experience” was partially
with the IBEW. (3) Also on November 29, Kammer e-mailed
his resume to the Respondent stating, inter alia, that his “Ex-
perience” included “working out of IBEW Local 306,” and
twice within the next 2 weeks Kammer called Delon’s voice
mail, each time stating that he was “with” the Union. (4) On
December 10, Sallaz sent Delon a resume stating that he had
been a member of Local 306 since 1994. (5) On December 15
and 16, Stefano called Delon stating that he was “an unem-
ployed IBEW member.”
I therefore find that the General
Counsel has stated a prima facie case of discrimination against
these five known union adherents, and the burden has shifted to
the Respondent to show that it would have refused to consider
or hire them, even absent their prounion sympathies.
The Respondent attempts to defend its refusals to hire known
union adherents Stock, Aikey, Kammer, Stefano, and Sallaz on
the ground that the positions for which they applied were su-
pervisory. Again, the Respondent had the right to discriminate
against applicants for true supervisory positions, and it proved
that the positions for which it hired Ockuly, Baron, Debalski,
and Bechhold were actually supervisory. Therefore, the acts of
hiring these four individuals do not constitute evidence of
unlawful discrimination against the five known prounion appli-
cants. Also, the Respondent hired Kopec on November 3, be-
fore any of the alleged discriminatees applied and made their
union affiliations known, and his hiring is also not evidence of
discrimination against the known union adherents.42
The Respondent considered and hired nonunion applicants
for nonsupervisory positions after it refused consideration and
employment to the known union adherents. In the context of its
above-demonstrated animus, the Respondent’s selections of the
nonunion applicants constitute probative evidence of unlawful
discrimination against the five known union adherents.
(1)
After Stock applied for employment and made known his union
affiliation on November 6, the Respondent hired: (a)
Rumschlag on November 10; (b) Switzer on December 1; (c)
Zill on December 8; (d) Patalon on December 8; (e) Hovanec
on January 18; and (f) Finnell on January 18. (2) and (3) After
Aikey and Kammer applied and made known their union af-
filiations on November 29, the Respondent hired Switzer, Zill,
Patalon, Hovanec, and Finnell.
(4) After Sallaz applied and
made known his union affiliation on December 10, the Respon-
dent hired Hovanec and Finnell. (5) The Respondent also hired
Hovanec and Finnell after Stefano applied and made known his
union affiliation on December 15. The Respondent has not
come forward with any evidence (except for that consistent
with its discredited supervisory-positions theory) of why it
hired the nonunion Rumschlag, Switzer, Zill, Hovanec, Patalon,
and Finnell rather than the union-affiliated Stock, Aikey,
Kammer, Sallaz, and Stefano.
The Respondent does contend that, even if it never did make
Switzer, Zill, Hovanec, Patalon, Kopec, Rumschlag, or Finnell
foremen-in-charge, it hired them with the intent of doing so and
that it was prevented from doing so only because of its business
decline that began in January 2001. For this reason, the Re-
spondent argues, the evidence of its hiring Rumschlag, Switzer,
Zill, Hovanec, Patalon, and Finnell (as well as the evidence of
its hiring of Ockuly, Baron, Debalski, and Bechhold) cannot be
considered evidence of discrimination against Stock, Aikey,
42 Ockuly and Baron also were hired on November 3, and their hir-
ing is not evidence of discrimination against the alleged discriminatees
for that reason, as well the fact that they were hired for true supervisory
positions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
988
Kammer, Sallaz or Stefano. I disagree. Availability of jobs is
always a factor in determining how many supervisors, or em-
ployees, are needed. However, the Respondent’s testimony that
Switzer, Zill, and Hovanec had more to prove before they could
become foremen-in-charge is an admission that the Respondent
hired its foremen subject to conditions subsequent in addition to
the availability of jobs. Moreover, if the Respondent’s position
is held to be a defense, any antiunion employer could have any
number of applicants sign meaningless documentation, and run
them through any number of “supervisory training sessions,” to
create a bottomless pool of putative “potential supervisors” that
will indefinitely do only journeymen’s work. If given such an
open-ended right, those employers could evade the legal neces-
sity of considering any prounion applicants who may appear (or
who have already appeared). I find that the Respondent is pre-
cisely such an employer, and I reject this defense.
In summary, the Respondent has failed to meet its burden
under Wright Line to show that it would have refused to hire
Stock, Aikey, Kammer, Sallaz, and Stefano even absent their
known union memberships or prounion sympathies.43 Accord-
ingly, I find and conclude that the Respondent has violated
Section 8(a)(3) by refusing to hire those employees, as well as
by refusing to consider them for hire.
The Respondent also refused to consider Stock’s June appli-
cations to work as an apprentice, and it did hire other appren-
tices after June.44 Savoia, after much revealing hesitation, ven-
tured that the Respondent did not hire Stock as an apprentice
because he had already completed an apprenticeship program.
Savoia admitted, however, that on March 30, Kuligowski was
hired as an apprentice, even though he had completed an ap-
prenticeship program. On brief, the Respondent asserts that it
hired Kuligowski as an apprentice but “excused” him from
entering the Respondent’s apprentice program “because he felt
that he was a journeyman already.” Obviously, however, Stock
“felt” the same. Presumably, Stock would have accepted an
apprentice’s position, also without going through the program,
but for the Respondent’s refusal to consider him. I therefore
also find and conclude that the Respondent also violated Sec-
tion 8(a)(3) by refusing to consider and hire Stock when he re-
applied for employment in June 2001.45
On June 8, Hudson appeared at the Respondent’s office to
make a reapplication with Savoia; at the time Hudson was
43 On brief, the Respondent raises additional defenses such as the
fact that Aikey once expressed a desire for higher pay than the Respon-
dent was granting to foreman, the fact that Sallaz once expressed a
desire to work in the Southwest, and the fact that Stock (like Switzer)
had no supervisory experience. Savoia, however, did not testify that
such factors entered into the Respondent’s decisional processes. Savoia
did give as reason for not hiring Stock as a journeyman (in addition to
his union membership) that he had originally applied for a foreman’s
position; this reason was so patently false that the Respondent does not
mention it on brief.
44 According to the R. Exh. 55, it hired as apprentices: Thomas
Holman on June 22, Douglas Hartley on July 29, and Clinton Klimek
and Franklin Robinson on August 10.
45 This conclusion will affect the remedy for Stock only if the Re-
spondent demonstrates at the compliance stage of this case that he
would have been lawfully laid off as a journeyman before he applied
for a job as an apprentice.
wearing a union T-shirt. At that point, the Respondent became
aware of Hudson’s union membership or sympathies, and the
complaint alleges that Hudson’s reapplication was then denied
in violation of Section 8(a)(3). The General Counsel, however,
has not proved that the Respondent sought to hire, or did hire,
any journeymen after it refused employment to Hudson, either
by the artifice of subcontracting for journeymen (as it subcon-
tracted for Albano through Dobrich), or by hiring employees
through a temporary employment agency,46 or by hiring another
nonsupervisory foreman.
I shall therefore recommend dis-
missal of the complaint’s allegations that it refused to hire Hud-
son as a journeyman when he reapplied for employment.
In conclusion, I am constrained to note that it is apparent
why the Respondent permanently maintains at its facility a sign
stating “Not Accepting Journeymen Applications At This
Time,” and it is apparent why the Respondent advertises only
for “Supervisors/Foremen” and apprentices.
The Respondent
knows that it may lawfully discriminate against union-affiliated
journeymen who are applying for true supervisory positions,
and it knows that no union would use an apprentice as a salt
(and thereby interrupt that apprentice’s on-going, multiyear,
union apprenticeship program). This also explains why the
Respondent classifies so many of its journeymen as “foremen,”
and calls them “supervisors,”47 and it explains why it classifies
other new-hires as “apprentices” (such as journeyman Watkins
and sometimes-foreman-in-charge Pointkowski). That is, the
Respondent calls newly hired journeymen anything but “jour-
neymen” as a part of a cynical subterfuge of the law. There-
fore, even without the proof of the Respondent’s animus, I
would find the Respondent’s claim never to hire journeymen is
presumptive evidence of unlawful discrimination against union-
affiliated journeymen who may apply for employment.48
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
46 The General Counsel does not contend that the Respondent hired
any temporary employees in preference to any of the alleged discrimi-
natees. I therefore need not pass on the possible adequacy of the Re-
spondent’s alleged preference for temporary employees as a defense to
an allegation of unlawful discrimination.
47 Although it may be theoretically possible for a construction-
industry employer to operate its business by hiring only apprentices and
true supervisors, the Respondent has simply been unable to do so. The
extreme example of the Respondent’s inability to rely on the graduates
of its apprenticeship program to avoid hiring new journeymen lies in
the case of its Medina High School job where, as Baron admitted, the
Respondent employed six electricians, five of whom the Respondent
had classified as foremen. (Baron further admitted that only Lathrop,
the foreman-in-charge, supervised anyone but himself.)
48 See, generally, Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185
(1941); NLRB v. Erie Resistor Corp., 373 U.S. 221, 228 (1963); and
NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967), as cited by
the General Counsel on brief. And, specifically, see Aztech Electric
Co., 335 NLRB 260 (2001) (system designed to deny employment to
prounion applicants is inherently destructive of employee rights).
BAY HARBOUR ELECTRIC
989
3. The Respondent violated Section 8(a)(1) of the Act by in-
structing employees not to engage in activities on behalf of the
Union, by threatening them with unspecified reprisals if they
did engage in such activities, and by threatening employee-
applicants that they would not be considered for hire, or hired,
because of their memberships in, support for, or activities on
behalf of the Union.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by refusing to hire, and by refusing to consider for hire,
employee-applicants Richard Aikey, Michael Kammer, Robert
Sallaz, Paul Stefano, and Stephen Stock because of their mem-
berships in, support for, or activities on behalf of the Union.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not otherwise violated the Act as al-
leged in the complaint.
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.
To remedy its discriminatory refusals to hire employee-
applicants Aikey, Kammer, Sallaz, Stefano, and Stock, the
Respondent shall be ordered to, within 14 days from the date of
the Order, offer them employment to the positions for which
they would have been hired but for its unlawful conduct. Fur-
ther, the Respondent will be required to make Aikey, Kammer,
Sallaz, Stefano, and Stock whole for any loss of earnings and
other benefits that they have suffered as a result of the dis-
crimination against them in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). The Respondent will also be required to, within 14
days from the date of the Order, remove from its files any ref-
erence to its unlawful refusals to hire, and to its unlawful refus-
als to consider for hire, Aikey, Kammer, Sallaz, Stefano, and
Stock, and to, within 3 days thereafter, notify them in writing
that it has done so and that the actions taken against them will
not be used against them in any way. Finally, the Respondent
will be ordered to post an appropriate notice to employees.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended49
ORDER
The Respondent, Bay Harbour Electric, Inc., Erie, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing employees not to engage in activities on be-
half of the Union.
(b) Threatening employees with unspecified reprisals if they
become or remain members of the Union or give any assistance
or support to it.
49 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.
(c) Threatening any employee-applicant that he or she would
not be considered for hire, or hired, because of his or her mem-
bership in, support for, or activities on behalf of the Union.
(d) Refusing to hire, or refusing to consider for hire, any ap-
plicant for a nonsupervisory position because of his or her
membership in, support for, or activities on behalf of the Union.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Richard
Aikey, Michael Kammer, Robert Sallaz, Paul Stefano and
Stephen Stock instatement to the positions for which they ap-
plied or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges.
(b) Make whole, with interest, Richard Aikey, Michael Kam-
mer, Robert Sallaz, Paul Stefano and Stephen Stock for any
loss of earnings and other benefits that they have suffered as a
result of the unlawful discrimination against them in the man-
ner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Order, remove from
its files any reference to its unlawful refusals to hire, and to its
unlawful refusals to consider for hire, Richard Aikey, Michael
Kammer, Robert Sallaz, Paul Stefano, and Stephen Stock, and
within 3 days thereafter notify them in writing that this has
been done and that neither its refusals to hire them, nor its re-
fusals to consider them for hiring, will be used against them in
any way.
(d) Preserve and, within 14 days of a request, or within such
additional time as the Regional Director may allow for good
cause shown, provide at a reasonable place designated by the
Board or its agents all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to determine the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Erie, Pennsylvania facility copies of the attached notice marked
“Appendix.”50 Copies of the notice, on forms provided by the
Regional Director for Region 6, after being signed by the Re-
spondent’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. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
50 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
990
all current employees and former employees employed by the
Respondent at any time since November 6, 2000, the date of the
first unfair labor practice found herein.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT instruct you not to engage in activities on be-
half of International Brotherhood of Electrical Workers, Local
No. 306, AFL–CIO, CLC (the Union).
WE WILL NOT threaten you with unspecified reprisals if you
become or remain members of the Union or give any assistance
or support to it.
WE WILL NOT threaten any applicant for a nonsupervisory
position that he or she will not be considered for hire, or hired,
because of his or her membership in, support for, or activities
on behalf of the Union.
WE WILL NOT refuse to hire, and WE WILL NOT refuse to
consider for hire, any applicant for a nonsupervisory position
because of his or her membership in, support for, or activities
on behalf of the Union.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce you in the exercise of rights guaranteed to
you by Section 7 of the National Labor Relations Act.
WE WILL, within 14 days of the date of the Board’s Order,
offer Richard Aikey, Michael Kammer, Robert Sallaz, Paul
Stefano, and Stephen Stock instatement to the positions for
which they applied or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges.
WE WILL make whole, with interest, Richard Aikey, Michael
Kammer, Robert Sallaz, Paul Stefano, and Stephen Stock for
any loss of earnings and other benefits that they have suffered
as a result of our unlawful discrimination against them, with
interest.
WE WILL, within 14 days of the date of the Board’s Order,
remove from our files any reference to our unlawful refusals to
hire, or to our unlawful refusals to consider for hire, Richard
Aikey, Michael Kammer, Robert Sallaz, Paul Stefano, and
Stephen Stock, and, within 3 days thereafter, notify them in
writing that neither our refusals to hire them, nor our refusals to
consider them for hire, will be used against them in any way.
BAY HARBOUR ELECTRIC, INC.