Approved Electric Corp

National Labor Relations Board - Board Decisions

Dec 3, 2010

356 N.L.R.B. 238 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 238
Approved Electric Corp. and Local 25, International
Brotherhood of Electrical Workers. Case 29–
CA–29184
December 3, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On June 9, 2009, Administrative Law Judge Raymond
P. Green issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel and Charging Party each filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions for
the reasons stated below, to modify his remedy,2 and to
adopt the recommended Order as modified. 3 The judge
found, and we agree, that the Respondent violated Sec-
tion 8(a)(1) by discharging employees Esroy Bernard and
Desmond Stewart because of their protected concerted
activity.
As described more fully in the judge’s decision, the
Respondent, an electrical contractor, was awarded a sub-
contract in late spring 2008 to install and replace lighting
fixtures at various public schools. The Respondent hired
a five-person crew to perform the work. Members of the
crew included employee Romeo Bailey and the alleged
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent excepts to the judge’s rejection of its 10(b) defense
regarding the discharge of employee Desmond Stewart. The judge
found that the complaint allegation regarding Stewart was closely relat-
ed to the allegations in the unfair labor practice charge and therefore
was not barred by Sec. 10 (b). We need not pass on that finding be-
cause the Respondent waived its 10 (b) defense by failing to raise it
until its posthearing brief. See Dayton Newspapers, 339 NLRB 650,
653 fn. 8 (2003), enf. granted in part, denied in part on other grounds
402 F.3d 651 (6th Cir. 2005); Newspapers & Mail Deliverers (New
York Post), 337 NLRB 608, 609 (2002).
2 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s recommended remedy by
requiring that backpay and other monetary awards shall be paid with
interest compounded on a daily basis.
3 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). We shall substitute a new notice to conform to the Order and to
the Board’s decision in Ishikawa Gasket America, Inc., 337 NLRB 175
(2001), enfd. 354 F.3d 534 (6th Cir. 2004).
discriminatees, Bernard and Stewart. Bailey had worked
with the Respondent’s president and owner, Trevor
Dunwell, previously and was the first person Dunwell
hired to work on the public school contract.4 The crew
began work on July 23. Shortly before August 1, Ber-
nard and Stewart approached Bailey about the Respond-
ent’s failure to pay them for the work they had performed
so far. Bailey reported to Dunwell that “the guys” were
“disgruntled” about not being paid, that “these guys have
obligations,” and that “we need to get some money.” On
August 2, Dunwell provided Bailey with funds to make a
partial payment to each of the employees to offset their
commuting costs and expressly asked Bailey to inform
the employees that the money represented “an advance.”
During the week of August 6, Stewart continued to press
Bailey about the Respondent’s failure to pay the employ-
ees their full wages. By letters dated August 8, the Re-
spondent discharged Bernard and Stewart, stating in the
letters that they were being laid off “due to cut back [sic]
in staff.” The Respondent concedes that the reason given
in the letters was false, but contends that Bernard was
terminated for poor performance and Stewart for exces-
sive use of his cell phone.
The judge’s analysis of the discharges generally fol-
lows Wright Line,5 which we agree describes the appro-
priate analytical framework. Under Wright Line, the
General Counsel has the initial burden to prove that the
employees’ Section 7 activity was a substantial or moti-
vating factor in the discharges. The elements commonly
required to support the General Counsel’s initial showing
are union or protected concerted activity by the employ-
ees, employer knowledge of that activity, and animus on
the part of the employer. See, e.g., Consolidated Bus
Transit, 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d
467 (2d Cir. 2009). If the General Counsel makes the
required initial showing, the burden shifts to the employ-
er to prove by a preponderance of the evidence that it
would have taken the same action even in the absence of
the union or protected concerted activity. See Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996), affd. 127
F.3d 34 (5th Cir. 1997).
We agree with the judge that the General Counsel car-
ried his initial burden. First, the record shows that Stew-
art and Bernard were engaged in protected concerted
activity. There is no dispute that the subject matter of
Stewart’s and Bernard’s discussions—the effort to obtain
4 Although Bernard and Stewart testified that Bailey hired and su-
pervised them, the parties do not contend that Bailey was a supervisor
or agent within the meaning of Sec. 2(11) and (13) of the Act.
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
356 NLRB No. 45

APPROVED ELECTRIC CORP. 239
payment for their work—was protected by Section 7.
The Respondent argues that the activity was not concert-
ed because each employee was merely pursuing his per-
sonal interests. We disagree. Stewart and Bernard both
testified that “we” spoke to Bailey about needing pay-
ment because “we” were facing another week of com-
muting costs. Bernard stated that “we” meant “mostly
myself and [Stewart].” It is not essential to a finding of
concerted activity that employees formally agree to act as
a group. See, e.g., Salisbury Hotel, 283 NLRB 685, 687
(1987) (where employees were “all up in arms” about
new lunch-hour policy, employee’s complaints to col-
leagues and employer were part of a concerted effort to
convince employer to change its policy, even absent evi-
dence that they explicitly agreed to act together).
Second, the Respondent had knowledge of Stewart’s
and Bernard’s protected concerted activity. Although the
Respondent concedes that it had knowledge of Stewart’s
complaints about not being paid, it denies knowing that
those complaints were concerted. We do not find merit
in this contention. It is undisputed that Dunwell learned
of Stewart’s complaints when they were reported by Bai-
ley. Accordingly, Dunwell had knowledge that Stewart
and Bailey—a fellow employee who is not alleged to be
a supervisor or agent—had discussed the matter together.
In addition, Bailey had informed Dunwell that “the guys”
were “disgruntled” about not being paid. Accordingly,
the evidence is sufficient to show that Dunwell knew or
suspected that Stewart’s complaints were concerted.6
With respect to Bernard, although Bailey testified that
Stewart and Bernard were the two most outspoken em-
ployees about the Respondent’s failure to pay them, it is
not clear from the credited testimony that Bailey specifi-
cally told Dunwell about Bernard’s complaints. Never-
theless, the manner in which Bernard was terminated
supports an inference that the Respondent knew about
Bernard’s protected concerted activity. Specifically,
Bernard was discharged at the same time as Stewart with
an identical discharge letter, giving the same explana-
tion—which was pretextual, as discussed below—for his
discharge. In addition, both employees were given these
written discharge letters even though the Respondent’s
standard practice was to handle discharges without pa-
perwork. The Board has consistently found that
6 Because the record supports a finding that the Respondent knew
that Stewart and Bernard acted in concert, we do not reach the question
of whether proof of such knowledge should be required when an em-
ployer takes adverse action against employees based on activities they
engaged in “for the purpose of . . . mutual aid and protection.” See
Reynolds Electric, Inc., 342 NLRB 156, 158–160 (2004) (then-Member
Liebman, dissenting in part). Chairman Liebman adheres to her views
expressed in Reynolds Electric, but agrees that it is unnecessary to
apply those views in this case.
knowledge can be inferred from similar circumstances
surrounding an employee’s termination. See, e.g., Pan-
Oston Co., 336 NLRB 305, 308 (2001) (inferring
knowledge from timing, animus, pretext, and simultane-
ous discipline of a known union supporter); Knoxville
Distribution Co., 298 NLRB 688, 688 fn. 1, 696 (1990),
enfd. mem. 919 F.2d 141 (6th Cir. 1990) (inferring
knowledge from timing and simultaneous discharge of
three union supporters); accord: Abbey’s Transportation
Service v. NLRB, 837 F.2d 575, 579 (2d Cir. 1988).7
Third, the circumstances surrounding the employees’
discharges support a finding of animus. The Respondent
was aware of the two employees’ alleged performance
issues by August 1 at the latest, yet did not terminate
them until August 8, after Stewart continued to complain
about not getting paid, and, in fact, Dunwell had just
made a partial payment to cover their commuting costs
on August 2, which he described as “an advance.” See
National Steel Supply, 344 NLRB 973, 974 (2005), enfd.
207 Fed. Appx. 9 (2d Cir. 2006) (unlawful motive found
where employer claimed that employee’s conduct was “a
daily problem,” but employee was not disciplined until
after the employer learned of a union campaign). The
Respondent also gave shifting reasons for the discharges.
Stewart and Bernard simultaneously received discharge
letters giving the same rationale for their discharges: that
they were laid off “due to cut back [sic] in staff.”8 At the
hearing, however, the Respondent claimed they were
discharged for two unrelated nondiscriminatory reasons:
excessive cell phone use (Stewart) and inadequate per-
formance (Bernard). The Board commonly recognizes
such shifting rationales as evidence that an employer’s
proferred reasons for discharging an employee are pre-
textual. See, e.g., City Stationery, Inc., 340 NLRB 523,
524 (2003) (nondiscriminatory reasons for discharge
offered at the hearing were found to be pretextual where
different from those set forth in the discharge letters);
7 In finding that the Respondent knew that Stewart and Bernard had
engaged in protected concerted activity, we do not rely on union repre-
sentatives’ inquiries to the Respondent during the same time period
about whether the Respondent was paying the prevailing wage. There
is no evidence that the Respondent knew or believed that any employ-
ees had spoken to the Union or that the Respondent otherwise associat-
ed the employees’ complaints about not being paid with the Union’s
inquiries about the wage rate.
8 Dunwell testified that he characterized the discharges as layoffs so
as not to impede Stewart and Bernard from finding further employ-
ment, but the letters themselves undercut that explanation. They state
that the Respondent’s policy “is to give only title of position and dates
of employment to companies seeking references. You can be assured
the details of this situation will remain strictly a company matter.”
Thus, the letters indicate that the Respondent would not tell prospective
employers that Stewart and Bernard were laid off, but would only give
their job titles and dates of employment.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 240
GATX Logistics, Inc., 323 NLRB 328, 335 (1997)
(“Where . . . an employer provides inconsistent or shift-
ing reasons for its actions, a reasonable inference can be
drawn that the reasons proferred are mere pretexts de-
signed to mask an unlawful motive.”). In addition, the
Board has recognized that the General Counsel may of-
fer, as part of his initial showing that a personnel action
was discriminatorily motivated, evidence that the em-
ployer’s purported reasons for the action were pretextu-
al—that is, either false or not in fact relied upon. See,
e.g., Pro-Spec Painting, Inc., 339 NLRB 946, 949
(2003); accord: Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466 (9th Cir. 1966). Accordingly, we agree
with the judge that the General Counsel carried his initial
Wright Line burden.
Finally, we agree with the judge that the Respondent
failed to prove that it would have discharged Stewart and
Bernard in the absence of their protected activity. In
doing so, we observe, as the judge did, that the claimed
reasons for the discharges did not seem to be of signifi-
cant concern to Dunwell, and therefore were not the real
reasons for the discharges.9 The judge discredited Dun-
well’s and Bailey’s testimony that Dunwell told Bailey to
discharge Stewart and Bernard on August 1, after Dun-
well learned of Stewart’s allegedly excessive cell phone
use and Bernard’s alleged performance issues. Thus, the
credited evidence shows that the employees’ conduct
was tolerated and was not deemed to warrant discharge
until after Stewart continued to press for payment of his
wages. Dunwell even provided Bailey with funds to
make what he described as an “advance” payment to
Stewart and Bernard on August 2. There is no evidence
that any additional complaints about Stewart and Bernard
were reported to Dunwell after August 1 that would have
precipitated the discharges.10 Moreover, there is no evi-
dence that either Stewart or Bernard was ever told that
cell phone use or poor work was the reason for his dis-
charge.
Accordingly, we agree with the judge that the Re-
spondent discharged Stewart and Bernard for their pro-
tected, concerted activity and that the discharges there-
fore violated Section 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
9 We do not rely on the judge’s finding that Bailey did not personally
think that Bernard’s performance issues were significant. Bailey is not
a supervisor and did not make the decision to discharge Bernard.
10 Bailey testified that the contractor for which the Respondent was
working complained about Stewart’s cell phone use again during the
week of August 6, but there is no evidence that that complaint was
reported to Dunwell.
modified below and orders that the Respondent, Ap-
proved Electric Corp., Bronx, New York, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Make Esroy Bernard and Desmond Stewart whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision,
plus daily compound interest as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).”
2. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its Bronx, New York facility copies of the attached no-
tice marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since August 8, 2008.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

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 behalf
Act together with other employees for your bene-
fit and protection

APPROVED ELECTRIC CORP. 241
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge employees because of their
protected concerted activity of seeking to receive their
wages.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Esroy Bernard and Desmond Stewart full
reinstatement to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make whole Esroy Bernard and Desmond
Stewart for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, less
any net interim earnings, plus interest as prescribed in the
Board’s Order.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Esroy Bernard and Desmond Stewart
and, within 3 days thereafter, notify them in writing that
this has been done and that these actions will not be used
against them in any way.

APPROVED ELECTRIC CORP.

Linda Harris Crovella, Esq., for the General Counsel.
Alan B. Pearl, Esq., for the Respondent.
Richard S. Brook, Esq. and Patricia E. Palmeri, Esq., for the
Charging Party.
DECISION
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Brooklyn, New York, on February 24 and 25 and March
19, 2009. The charge in this case was filed on September 17,
2008, and the complaint that was issued on December 31, 2008,
alleged that on or about August 10, 2008, the Respondent dis-
charged Desmond Stewart and Esroy Bernard because of their
union activity and because they concertedly protested the Re-
spondent’s pay policies and increased production requirements.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
Findings and Conclusions
I. JURISDICTION
There is no dispute and I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also is agreed and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
Approved Electric Corporation is an electrical contractor lo-
cated in the Bronx, New York. The owner is Trevor Dunwell
who is the president. It is a nonunion contractor.
Sometime in late spring of 2008, it received a contract from
RS Lighting to install and/or replace florescent lighting fixtures
and lamps in two school districts located in Nassau and Suffolk
County. RS Lighting, which appears to be a national contrac-
tor, had received a contract to be the electrical contractor to
install bulbs and lighting fixtures from Ameresco pursuant to
some type of arrangement with ECG Engineering. ECG seems
to have been hired by the school districts to retrofit the lighting
in the schools in order to reduce the amount of electricity used.
In or about mid July 2008, Approved hired a group of non-
union electricians to begin work at the Wyandanch Memorial
High School. The foreman or lead person was to be Romeo
Bailey. He in turn contacted several men, including Desmond
Stewart and Esroy Bernard who he knew from prior work expe-
rience. (Bernard had worked with him on a previous job in
Harlem). These people all met at the Company’s office on July
22, where they filled out the necessary paperwork and were
hired. The evidence indicates to me that at the time of their
hire the employees were not told their rates of pay and they
assumed that it would be the standard rate for similar work that
they had done before on nonpublic jobs. (Around $20 to $21
per hour).
On Wednesday, July 23, 2008, work began at Wyandanch
High School. For this job there were two crews; one composed
of about five men directly employed by Approved and another
larger group of men who are employees of RS Lighting. The
electrical workers employed by Approved were Romeo Bailey,
Esroy Bernard, Everton Christie, Devon Cowan, Fitzroy Simon,
and Desmond Stewart. The person who was in overall charge
of the project was Andrew Beason and he was an employee of
RS. For reasons unknown to me, the employees of both crews
were placed on the payroll of Approved, albeit the employees
of RS were never actually employed by Approved.
The work at Wyandanch involved removing old fixtures,
putting up new fixtures, changing ballasts, and installing new
lamps. Andrew Beason, RS’s supervisor, told Bailey that he
expected Approved’s men, in the aggregate, to do 70 fixtures a
day. And according to Bailey, they managed to meet and beat
this quota for most of the time that his crew worked at this site.1
During their first week on the job, the crew worked three 10
hour days.
On Friday, July 25, 2008, Union Representative George Psil-
los visited the Wyandanch High School and spoke to Bailey.
He asked what work they were doing and how much the men
were being paid. Bailey responded that his company was re-
placing fixtures, ballasts, and lamps. According to Psillos, he
was told that the men were being paid $21 per hour and he told
Bailey that this was not the proper prevailing wage rate.
In fact, the evidence shows that the prevailing rate for this
type of work on a public school is $52.56 per hour. The over-
1 According to Bailey, they got a slow start on the first day and did
68 fixtures. But he also testified that thereafter they “made like 72, 76.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242
time rate is computed at 1½ that amount for work done after 8
hours per day.
On Monday, July 28, Psillos and another union business
agent, Kevin Harvey, visited the job site. After they arrived,
they spoke to Beason, and asked what the work was and what
the wage rate was. After speaking to Beason, both representa-
tives spoke to some of the men working at the jobsite and told
them that for this type of work they should be earning more.
The workers didn’t respond. Nevertheless, soon thereafter,
Desmond Stewart approached the union representatives, asked
about the prevailing rates and was given a business card.
Later on the 28, Union Agent Kevin Harvey made inquiries
from various people about this job and whether the employees
were being paid prevailing wages. Among the people he con-
tacted were Vince Crimi, the Sr. project manager for Ameresco
and Denzil Davis who apparently is the owner of a company
called Jenco or Jako. Harvey also discovered that Approved
was working with a Long Island electrical contractor named
June Electric, who although not providing any labor, provided
the electrical license to enable Approved to work on the
schools.
At some point after July 29 a meeting was set up. The par-
ticipants were to be the union representatives and representa-
tives from the various contractors. The meeting was scheduled
to take place on the morning of August 5, 2008, and there is no
question but that all participants were aware that the main pur-
pose of this meeting was to address the Union’s assertion that
the employees on the project were not being paid at the State’s
required prevailing wage rate.
In the meantime, the work assigned to Respondent Approved
at the Wyandanch School was completed by Friday, August 1,
2008. After completion, Bailey told the men that they should
not report to work on Monday and should await further instruc-
tions. The crew was then supposed to move to the Freeport
School. It is noted that at this point in time, none of the men,
including Bailey had yet been paid by Approved and there was
some grumbling about this to Bailey.
By August 1, 2008, the workers and in particular, Esroy Ber-
nard, were complaining to Bailey about not having been paid.
As a result, Bailey contacted Trevor Dunwell who told him that
he had come up with $4000 and that Bailey could distribute
$800 to each employee as an advance on their wages. This was
accomplished on Saturday, August 2, 2008.
On Sunday August 3, Bailey called Esroy Bernard and told
him that the crew was going to be going to go to a school in
Freeport. Bernard, in turn communicated this information to
Desmond Stewart. They were told to wait for further instruc-
tions as to when they would start.
On Tuesday morning, August 5, 2008, a meeting was held at
the Wyandanch School. In attendance were the two union rep-
resentatives, along with Vince Crimi, the project manager for
Amaresco, Richard Pinnock from R.S. Lighting, Trevor Dun-
well the president of Approved, and Denzil Davis and James
Acardi from June Electric. At this meeting, the union repre-
sentatives were given what purported to be certified payrolls.
Upon review, the union representatives expressed skepticism
abut the wage rates and also stated that the overtime paid was
incorrect because under the prevailing rate, overtime should
have been paid after 8 hours of work per day instead of after 40
hours of work per week. There also was some question raised
by the Union about whether anyone connected with the job had
a legally required license to work in Suffolk County.
Desmond Stewart testified that on the afternoon of August
5, he received a phone call from Bailey who told him that he
needed his social security number because the Company was
going to change his wage rate to about $52 per hour. Stewart
testified that Bailey said that there had been a meeting between
the Company and the Union and that the Union was pressuring
the employer to pay the prevailing rate.
The crew started working at the Freeport School on Wednes-
day, August 6, 2008. The work on this site was simpler than
the work at the Wyandanch School because the employees did
not have to change the fixtures that held the lamps. For this
job, Beason told Bailey that each man on the Respondent’s
crew would be required to do 40 units per day. According to
Bailey, Beason told him that if Bailey’s crew couldn’t do this,
RS would be able to bring in other guys to do the work.
According to Bailey, he then held a meeting with the em-
ployees and explained that they individually would be respon-
sible for 40 units per day. This engendered some complaints
from Stewart and Bernard. Stewart expressed distress at there
being an individual quota when they were being paid by the
hour. Bernard indicated that a quota of 40 was ridiculous.
Bailey told the men to give it a shot and reminded them that
when they were at Wyandanch, they had met and exceeded the
70 unit installation quota that had been given to them by
Beason. He also told them, in effect, that if they could not meet
the quota, the Respondent could lose the job and they would be
“firing themselves.”
Bailey testified that on Thursday and Friday (August 7 and
8), the members of his crew did not meet the 40 unit quota. He
opined that it may be that the men, not having been paid yet,
were not so anxious to work so fast. And in this regard, Bailey
concedes that the two employees who were vocal about their
lack of pay were Bernard and Stewart. Bailey states that he
told Trevor Dunwell that the men were “really disgruntled be-
cause there was no money coming in.” According to Bailey,
Dunwell responded by stating that he thought he had told him
the previous week to get rid of Bernard and Stewart.
The last day that Esroy Bernard and Stewart Desmond
worked for the Respondent was on Friday, August 8, 2008.
Thereafter, on August 10, 2008, they received letters telling
them that they had been permanently laid off.
After these layoffs, the Company continued to work at the
Freeport School until October 2, 2008, when it terminated its
contract with RS Lighting over some dispute between the two
companies. Thus, after Approved walked away from this con-
tract, there is little likelihood that Stewart or Bernard would
have continued working for the Respondent.
The Respondent contends that it laid off Esroy Bernard and
Desmond Stewart because of their work performance. In the
case of Esroy Bernard, it contends that he did not have suffi-
cient skills. In this regard, Bailey described an instance during
the Wyandanch job where Beason brought to his attention that
Bernard had miswired some fixtures. In the case of Stewart,
Bailey asserts that during that same week, Beason complained
APPROVED ELECTRIC CORP. 243
that he saw Stewart spending too much time outside talking on
his cell phone. According to Trevor Dunwell, when he heard
about these complaints by Beason, he told Bailey on August 1,
2008, to let Bernard and Stewart go.
Nevertheless, the two men were paid $800 advances on Au-
gust 2, were not told that they were being let go, and were
transferred to the Freeport job on August 6, 2008. It therefore
seems to me that Bailey, who was in charge of this project, did
not feel that Desmond and Bernard were incapable of, or not
willing to do their jobs. In this regard, despite any time that
Bernard may have spent on the phone, the evidence shows that
at the Wyandanch job, the Respondent’s workers were able to
meet and exceed the expectations that RC had set for them. It
also seems to me that Bailey did not think that the wiring prob-
lems encountered by Bernard were not correctable with a little
bit of instruction and practice.
Analysis
The Respondent contends that the allegations of the com-
plaint relating to Desmond Stewart should be dismissed under
Section 10(b) of the Act because the charge filed by the Union
did not allege that his discharge was specifically motivated by
his protected concerted activities. I reject this argument.
It is well settled that a complaint may assert allegations that
are not specifically referenced in an unfair labor charge if they
are closely related to the allegations made in the charge. Since
the unfair labor practice charge alleges that the Respondent
discharged Esroy Bernard because of his pay complaints and
since Stewart allegedly was involved in and discharged for the
exact the same activity, it is my conclusion that if proven, the
allegations of the complaint would be closely related to the
charge.2 Redd-I Inc., 290 NLRB 115 (1988); Nickles Bakery of
Indiana, 296 NLRB 927 (1989); Dickens, Inc., 352 NLRB 667
(2008); Kentucky Tennessee Clay Co., 343 NLRB 931, 932
(2004). Ross Stores Inc., 329 NLRB 573 (1999); Seton Co.,
332 NLRB 979 (2000),
I do not believe that the General Counsel has made out a
primae facie case that the Respondent discharged Bernard and
Stewart because of their union activities. For one thing, there is
little evidence to show that they engaged in any type of signifi-
cant union activity or that the employer was aware of such ac-
tivity. While it is true that the Union did make a protest about
the wage rates being paid to all of the employees, there is noth-
ing to indicate that the Employer made its decision to discharge
these two employees because they were involved in any union
organizing activity, or because they joined or supported the
Union.
Nevertheless, my conclusion as to the allegation that these
two employees were discharged because of their protected con-
certed activity is just the opposite.
In somewhat different but overlapping ways, the General
Counsel posits that the Respondent discharged Esroy Bernard
and Desmond Stewart because of complaints about pay issues.
To me, the evidence shows when the employees were hired
to do this project, they probably were not specifically told what
2 I note that the charge did allege that the Respondent violated the
Act by “discontinuing his [ Stewart’s] employment because he was
seen speaking to a Business Representative of Local 25, I.B.E.W.”
their wage rates would be. They therefore assumed that they
would receive around $20 per hour. They clearly were not told
that they would be paid at the state mandated prevailing wage
rate which is $52.56 per hour.
In any event, the Union came upon the scene in late July
2008, and made inquiries from Bailey and Beason about
whether the employees on the job were being paid the prevail-
ing wage rate. And on Tuesday August 5, 2008, union repre-
sentatives demanded that these employees should all be paid at
the rate of $52.56 per hour. It also demanded that employees
should receive overtime rate after 8 hours worked on any given
day. Indeed, the Respondent and the other companies doing
this project were aware, by virtue of various communications
from union representatives on July 29, 2008, that the Union
was going to make the wage rates for all the work to be per-
formed in Nassau and Suffolk counties an issue. Soon after the
meeting concluded, the credited testimony shows that Desmond
Stewart was told by foreman Bailey that the Respondent was
going to change his wage rate to about $52 per hour. Also,
Stewart credibly testified that Bailey said that there had been a
meeting between the Company and the Union and that the Un-
ion was pressuring the employer to pay the prevailing rate.
The other pay issue involved the fact that no one on the job
received any pay for the first 2 weeks. They received only an
$800 advance on Saturday, August 2, 2008, and this after much
grumbling to Bailey by Bernard and Stewart.
So by the time that the meeting was held on August 5, be-
tween the Union and the employers, the men employed by Ap-
proved who had been assigned to work at the Wyandanch
School had finished work there but had received only partial
payment. Moreover there was at least an issue as to whether
under State law they were going to be credited with the correct
amount of overtime pay. (They ultimately were.)3 So from the
Respondent’s perspective, it was aware (a) that employees were
complaining about not being paid and (b) that the Union was
complaining that the employees were not being paid the correct
prevailing wage rate. As these are complaints relating to wag-
es, they would, to the extent expressed concertedly by employ-
ees, constitute protected concerted activity under Section 7 of
the Act. Moreover, if the Respondent made its decision to lay
off or discharge employees because it believed that they were
engaged in concerted complaints about their pay or wage rates,
such conduct would violate Section 8(a)(1) of the Act. Atwood
Mobile Products, 326 NLRB 1196, 1204–1205 (1998).
The evidence shows that when the crew, including Stewart
and Bernard, transferred to the Freeport School on Wednesday
August 6, 2008, these two employees continued to complain to
Bailey about the fact that they had not yet been paid. This is
conceded by Bailey who testified that the two employees were
vocal about their lack of pay were Bernard and Stewart. He
also testified that he told Dunwell that the men were “really
disgruntled because there was no money coming in.”
Based on the credited testimony and viewing the timing of
the events, it is my opinion that the General Counsel has made
out a prima facie case, in accordance with Wright Line, 251
3 It is not my job to decide any kind of wage or hour claim and I will
not do so in this forum.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 244
NLRB 1083 (1980), that Stewart and Bernard were discharged
because the Respondent was being faced with complaints by
these two that they were not being paid on time, compounded
by complaints by the Union that all of the employees were not
being paid the proper overtime rate under the prevailing wage
laws.
Reviewing the evidence presented by the Respondent, I am
not persuaded that it has met its burden to demonstrate that it
would have terminated Stewart and Bernard for reasons other
than their protected concerted activities or their perceived pro-
tected concerted activities. In this regard, I do not credit the
contention by Trevor Dunwell or Romeo Bailey that the Dun-
well told Bailey to get rid of these two employees on August 1,
2008. (At the end of the second week of work at the Wy-
andanch School). For one thing, it seems highly improbable
that Bailey, who had worked for Dunwell and hopes to work
for him again, would simply ignore a direct order to fire two
workers.4 For another thing, the alleged shortcomings of Stew-
art and Bernard were not convincing. In Stewart’s case, he
allegedly spent some time outside talking on the phone. But
the fact is that the quotas that RC Electric set for Approved at
the Wyandanch School were met or exceeded after the first day
on the job. And in Bernard’s case, Bailey although relating
problems with Bernard’s wiring, did not, in my opinion, seem
to think that this was all that significant.
CONCLUSIONS OF LAW
1. By discharging Esroy Bernard and Desmond Stewart be-
cause of their protected concerted activities, the Respondent has
violated Section 8(a) (1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
In view of the above, I shall recommend that the Respond-
ent, having discriminatorily discharged employees, must offer
them reinstatement and make them whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from the
dates of discharge to the date of proper offers of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (2987).5
4 I note that there is nothing in writing, by way of a letter or email,
to corroborate that representatives of RC Electric complained about the
two employees in question. Nor is there any such written communica-
tions between Bailey and Dunwell. However, I do not want to make
too much of this because I recognize that the Respondent is a small
company and may not engage in the same type of bureaucratic note
making that is often done by larger enterprises.
5 The evidence indicates that the Respondent’s electricians who
worked on this project were hired on a project basis only and that there
is a reasonable basis for assuming that Stewart and Bernard would
have been laid off when the Respondent finished work on October 2,
2008. On the other hand, there is some evidence to suggest that, on
occasion, the Respondent has rehired employees to work on new pro-
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Approved Electric Corp., Bronx, New
York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Discharging employees because of their protected con-
certed activity of seeking to receive their wages.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Esroy
Bernard and Desmond Stewart, full reinstatement to their for-
mer jobs, or if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(b) Make Esroy Bernard and Desmond Stewart whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth in the
Remedy section of this Decision.7
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful actions against Esroy
Bernard and Desmond Stewart and within three days thereaf-
ter, notify them in writing, that this has been done and that the
discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in the Bronx, New York, copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms provided
jects after an initial project has been completed. In cases such as this,
the Board, in Dean General Contractors, 285 NLRB 573 (1987), has
concluded that a Respondent in the construction industry may raise, at
the compliance stage of the proceeding, the issue of whether or not a
discriminatee would likely have been transferred to other jobs after
completion of the job to which he was originally assigned. In this
regard, I note that in Dean, the Board overruled Brown & Lambrecht
Earth Movers, 267 NLRB 186 fn. 3 (1983), to the extent that the latter
case held that there was a precompliance presumption against rein-
statement in the construction industry.
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
7 Inasmuch as the evidence shows that at least by August 5, the Re-
spondent had agreed to pay its employees the prevailing rate, the dis-
criminatees’ backpay should be computed at that rate of pay.
8 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the

APPROVED ELECTRIC CORP. 245
by the Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasona-
ble 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-
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, or sold the business or
the facilities involved herein, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent
at any time since August 8, 2008.
(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.