Facchina Construction Co.

National Labor Relations Board - Board Decisions

Dec 8, 2004

343 N.L.R.B. 886 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 98
886
Facchina Construction Co., Inc. and Carpenters Re-
gional Council Baltimore and Vicinity A/W
United Brotherhood of Carpenters and Joiners
of America. Case 5–CA–29940
December 8, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On June 13, 2003, Administrative Law Judge Earl E.
Shamwell Jr. issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply 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 as
modified below and to adopt the recommended Order.
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) by interrogating job applicants Elton Floyd
and Salvatore Astarita about their union membership. As
discussed below, we affirm the judge’s findings with
regard to Floyd but reverse with regard to Astarita.
In the spring of 2001, the Respondent was performing
work as a subcontractor on a construction project at Bal-
timore-Washington International Airport (the BWI work-
site). Some time around the beginning of March, Floyd
and his brother-in-law went to the BWI worksite seeking
employment in response to a newspaper advertisement
by the Respondent. They met with Project Superinten-
dent Gerard Ours,2 who gave them applications to com-
plete. According to the credited testimony, Ours asked
whether they were with the Union. Floyd told Ours that
they did not belong to any union. Both men began work-
ing for the Respondent the next day.
A few weeks later, Astarita showed up at the BWI
worksite seeking employment, wearing a union organizer
hat and a jacket with union insignia. Astarita met with
Ours, who asked if he had experience working with con-
crete. Astarita gave Ours the names of three companies
for whom he had worked, and Ours asked if Astarita was
a union carpenter. Astarita replied that he had been a

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.
2 The Respondent admits that Ours is a statutory supervisor and/or
agent.
member of the Union since 1995. Ours asked whether
the Union was treating Astarita well, and Astarita said
yes. Ours then told Astarita that the Respondent was not
hiring.
We agree with the judge that Ours violated Section
8(a)(1) of the Act by questioning Floyd about his union
membership. Under the circumstances, this interrogation
reasonably tended to interfere with, restrain, or coerce
the exercise of Section 7 rights. Floyd was applying for
a job, and thus his chance of being hired was implicated.
Ours’ question, in turn, was not relevant to Floyd’s fit-
ness as an employee. Instead, it reasonably implied anti-
union animus. The Board has frequently found similar
questioning of job applicants unlawful. See, e.g., Zar-
con, Inc., 340 NLRB 1222 (2003) (citing cases).
In contrast, we find that Ours did not violate Section
8(a)(1) by questioning Astarita, who openly advertised
his support for the Union when he spoke to Ours. Noting
both Astarita’s open advocacy and the nature of Ours’
questions, we find that this incident is similar to that pre-
sented in Boydston Electric, Inc., 331 NLRB 1450 fn. 5
(2000) (no coercive interrogation by asking an applicant,
who was as “obvious as possible” about his union mem-
bership during a job interview, about how long he had
been in the union).3
2. The judge found that Foreman Mike Spargo violated
the Act by (1) prohibiting employees from distributing
union literature off of the Respondent’s premises on
nonworking time, and (2) by telling employee William
Salbeck that Spargo had to get rid of all union carpenters
because he was bringing in workers from other jobs to
take their places. The Respondent denied responsibility
for Spargo’s conduct, asserting that he was neither an
agent nor a supervisor. The judge rejected the Respon-
dent’s assertions and concluded that Spargo was acting
as an agent of the Respondent when he engaged in this
conduct, and that his actions were therefore attributable
to the Respondent. We agree with the judge’s conclu-
sion, including his finding that Spargo was an agent, for
the reasons discussed below.4
Although not specifically stated by the judge in his de-
cision, it is evident that his finding of agency is based on
Spargo’s apparent authority to act on behalf of the Re-
spondent. The Board determines whether an individual
possesses apparent authority by examining whether, un-

3 Member Liebman would find it unnecessary to pass on the judge’s
finding regarding Astarita, because such a finding would not substan-
tially affect the remedy.
4 In addition to finding that Spargo acted as the Respondent’s agent,
the judge found that Spargo was a statutory supervisor based on his
authority to responsibly direct crew members in the performance of
their jobs. Because we affirm the judge’s finding of agency, we find it
unnecessary to pass on his finding of supervisory status.
FACCHINA CONSTRUCTION CO. 887
der all the circumstances, employees would reasonably
believe that the alleged agent was reflecting company
policy and speaking and acting for management. See,
e.g., Pan-Oston Co., 336 NLRB 305, 306 (2001) (citing
cases). Here, the evidence demonstrates that the foremen
serve as conduits between employees and management,
i.e., that management routinely communicates with em-
ployees through its foremen and receives information
about employees from its foremen. Employees receive
their daily assignments and work instructions from the
foremen. Foremen are responsible for overseeing em-
ployees’ work and instructing them to redo work if it is
done incorrectly. When the discriminatees were dis-
charged by the Respondent, it was Spargo who informed
them of their discharge. If employees need to leave work
early, or need some time off, they inform the foremen.
Foremen regularly report to Superintendent Ours about
personnel issues and other problems that arise during the
course of the day. In these circumstances, we conclude
that employees would have reasonably believed that
Spargo was speaking on behalf of management when he
engaged in the conduct at issue.5
The Respondent argues that the judge’s finding of
agency is precluded because there is no evidence that
Spargo was instructed by Ours to engage in the above-
mentioned conduct. We reject this argument. A finding
of apparent authority here does not turn on whether
Spargo was acting pursuant to specific instructions by the
Respondent; rather, it turns on whether the Respondent
placed Spargo in a position in which employees could
reasonably believe that he was speaking on behalf of
management. See, e.g., Hausner Hard-Chrome of Ky.,
Inc., 326 NLRB 426, 428 (1998). As explained, employ-
ees could have reasonably concluded that he was speak-
ing on the Respondent’s behalf.
3. We agree with the judge that the Respondent vio-
lated Section 8(a)(3) and (1) by discharging employees
William Salbeck, Lester Smith, Lynwood Keene, and

5 The judge found that certain other statements made by Spargo to
employee Lynwood Keene on April 17, 2001, though not alleged to
have been unlawful, were attributable to the Respondent as evidence of
antiunion animus. For reasons set forth above, we agree.
Similarly, although not alleged as unlawful conduct, the judge found
that certain statements made by Foreman Leon Heavner were evidence
of the Respondent’s animus. We affirm the judge’s finding, for the
reasons stated above, that Heavner was the Respondent’s agent and
acted with apparent authority when he told Lynwood Keene that the
Union was not wanted at Facchina, and that employees should stop
wearing union clothing and insignia because it was a conflict of inter-
est. It is undisputed that Heavner performed the same job responsibili-
ties as Spargo.
Chairman Battista concludes that Heavner’s first statement (i.e., that
the Union “was not wanted at Facchina”) is an expression of an opinion
that is not unlawful and would not constitute animus.
Alfred Keene for engaging in union activity. The Re-
spondent argues that the counsel for the General Counsel
has failed to meet his Wright Line6 burden of establishing
that the discharges were motivated by antiunion animus.
As discussed below, we find no merit in this argument.
Smith and Salbeck were discharged on about April 12,
2001,7 and the Keenes were discharged on April 18. It is
undisputed that the decision to discharge the employees
was made by Superintendent Ours, and that Ours was
aware that the employees were union supporters at the
time he made the discharge decision. Ours testified that
he knew or assumed that the employees supported the
Union at the time he hired them. Moreover, the record
shows that union representatives who spoke with Ours at
the BWI worksite on April 11 confirmed that the em-
ployees were union carpenters.
There is ample evidence that the Respondent harbored
animus toward the Union. Thus, the judge found that the
Respondent violated Section 8(a)(1) by Superintendent
Ours’ interrogation of employee Floyd about his union
sympathies in early March, by Foreman Spargo’s state-
ment to discriminatee Salbeck that he had to get rid of
“union carpenters” on April 12, and by Foreman
Spargo’s statement prohibiting employees from distribut-
ing union literature on April 17. The judge also found
that other statements, not specifically alleged to be
unlawful, demonstrated animus toward the Union,8 in-
cluding Foreman Heavner’s April 12 warning to dis-
criminatee Lynwood Keene that the Keenes should stop
wearing union clothing and insignia, and Spargo’s ad-
monition on April 17 to Lynwood Keene that he had to
stop trying to bring the Union to Facchina if he wanted a
future with the Company.
We disagree with our dissenting colleague’s assertion
that Ours’ interrogation (which he agrees was unlawful)
did not “convey any ill will against unionism” and that
the statements made by Spargo and Heavner (which he
agrees demonstrate animus) are irrelevant because nei-
ther Spargo nor Heavner were involved in the discharge
decision. The Board has found that, where there is no
legitimate basis for an interrogation, it demonstrates
animus. See, e.g., Sanderson Farms, Inc., 340 NLRB
402 (2003), enfd. mem. 112 Fed. Appx. 976 (5th Cir.
2004); Less Express Courier Systems, 330 NLRB 27, 30
(1999). As for the statements by Spargo and Heavner,

6 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in Transportation
Management Corp. v. NLRB, 462 U.S. 393 (1983).
7 All dates are in 2001, unless otherwise stated. There is some con-
flicting testimony as to whether the discharges occurred on April 12t or
13; however, the exact date of the discharges is not essential to deter-
mining whether the Respondent violated the Act.
8 See, e.g., General Battery Corp., 241 NLRB 1166, 1169 (1979).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD888
they were agents of the Respondent at the time of the
statements, and they reported directly to Ours, who was
responsible for the overall supervision of the BWI pro-
ject. See Turnbull Cone Baking Co. of Tennessee v.
NLRB, 778 F.2d 292, 296 (6th Cir. 1985) (“where an
employer’s representatives have announced an intent to
discharge or otherwise retaliate against the employee for
engaging in protected activity, the Board has before it
especially persuasive evidence that a subsequent dis-
charge of the employee is unlawfully motivated”), cert
denied 476 U.S. 1159 (1986); see also Williamette Indus-
tries, 341 NLRB 560, 562–563 (2004). Here, Spargo
essentially admitted to discriminatee Salbeck that the
Respondent had selected employees for discharge based
on their union affiliation, and the Keenes were dis-
charged 1 day after Spargo’s statement to discriminatee
Lynwood Keene and Heavner’s warning about wearing
union insignia. On this record, there is not only evidence
of Respondent’s animus generally, but also evidence of
animus directly related to the discharges.
We also agree with the judge that the Respondent
failed to establish that it would have discharged the em-
ployees absent its unlawful motive. Although our col-
league finds it unnecessary to pass on the validity of the
Respondent’s asserted defense, he nevertheless com-
ments on certain evidence relied on by the Respondent.
We agree with the judge that the Respondent’s proffered
reasons were pretextual. Because our colleague does not
argue that the Respondent met its burden, we find it un-
necessary to address his discussion of the Clarendon
crew transfer itself. See Manno Electric, 321 NLRB
278, 280 fn 12 (1996). Accordingly, we affirm the
judge’s decision and find that the discharges were unlaw-
ful.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Facchina Construction Com-
pany, Inc., La Plata, Maryland, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.
MEMBER MEISBURG, dissenting in part.
The central issue in this case is whether the Respon-
dent violated Section 8(a)(3) of the Act by including four
recently hired union carpenters in a group of employees
terminated to make room for a work crew from another
jobsite. Unlike my colleagues, I would reverse the judge
and dismiss the complaint allegation of unlawful dis-
crimination. In my view, the General Counsel has failed
to meet his initial Wright Line1 burden of proof. In par-
ticular, there is insufficient evidence that Job Superinten-
dent Gerald Ours, the official solely responsible for the
termination decisions, was motivated by union animus.
Ours oversaw a work force of as many as 120 employ-
ees at the Respondent’s Baltimore-Washington Interna-
tional Airport garage expansion project. He alone had
the authority to hire and fire. During two separate hiring
interviews in March 2001, he asked job applicants if they
were affiliated with a union. Although I agree with my
colleagues that Ours’ question violated Section 8(a)(1) in
one instance (the Floyd interview) but not in the other
(the Astarita interview), he clearly did not convey any ill
will against unionism in either interview or indicate that
he would not hire union members. Indeed, it is undis-
puted that Ours knew or correctly assumed that each of
the alleged discriminatees was affiliated with the Union
when he hired them for carpentry jobs on March 1 (Wil-
liam Salbeck) and March 14 (Lester Smith, Alfred
Keene, and Lynwood Keene).
On April 10, Ours received a phone call from the job
superintendent at the Respondent’s Clarendon jobsite in
Virginia. The Clarendon superintendent asked Ours to
accept the transfer of a crew finishing work there in order
to retain them in Respondent’s work force. In accord
with this request, Ours chose nine employees, including
the four alleged discriminatees, to be discharged. Sal-
beck and Smith were discharged on April 12; the Keene
brothers were discharged on April 18. At least three
other known union members at the BWI site were not
displaced when Clarendon crew members began working
there during the week of April 16.
Coincidentally, on April 11, the day after the Claren-
don superintendent called, two union officials ap-
proached Ours and attempted to persuade him to hire
through the Union’s apprentice program. During this
conversation, one official told Ours what he already
knew, i.e., that William Salbeck, Lester Smith, and the
Keene brothers were union members. That same day, the
Keene brothers distributed union leaflets at the jobsite
and Smith wore various union insignia.
As set forth fully in the judge’s decision, credited tes-
timony shows that Respondent’s foremen, Mike Spargo
and Leon Heavner, made several statements to one or
more of the alleged discriminatees about their union ac-
tivity and affiliation. I agree with the judge and my col-
leagues that Spargo and Heavner were the Respondent’s
agents. I also agree that Spargo violated 8(a)(1) by in-
forming Salbeck and Smith on April 12 that he had to get

1 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in Transportation
Management Corp. v. NLRB, 462 U.S. 393 (1983).
FACCHINA CONSTRUCTION CO. 889
rid of all union carpenters because the Respondent was
bringing in workers from other jobs to take their places,
and by attempting to limit the Keenes’ distribution of
union literature on April 17. I further agree that two
other statements manifest union animus: Heavner’s state-
ment to Lynwood Keene on April 12 that employees
should stop wearing union clothing and insignia because
it was a conflict of interest,2 and Spargo’s statement to
Lynwood Keene on April 17 that if Keene wanted a fu-
ture at Facchina he should stop trying to bring the Union
in, including talking to employees about the Union. I
part company with the judge and my colleagues, how-
ever, with respect to their reliance on this evidence to
establish animus in a discharge decision in which neither
Spargo nor Heavner were involved. See Alexian Bros.
Medical Center, 307 NLRB 389 (1992).
Ours alone made the decision about whom to dis-
charge in order to make room for the transferred Claren-
don crew. Heavner had no involvement in this action,
and Spargo’s only role was to inform employees that
they were discharged. There is no evidence that Ours
bore any animus against employees who were affiliated
with the Union or who engaged in organizing activity on
its behalf. Ours did not make any statements evincing ill
will and there is no basis for finding that the statements
made by two low-level foremen reflected his attitude.
Ours hired known and suspected union carpenters, and
he retained known union members in the BWI work
force after the Clarendon crew transfer.
I note that the judge did not draw any inference of an-
tiunion motivation from the timing of the discharges rela-
tive to the onset of union activity, and rightly so. Ac-
cording to Ours’ uncontradicted testimony, which the
judge did not discredit, he received the request to accept
the Clarendon crew transfer on the day before any of the
alleged discriminatees engaged in union activity at the
BWI site. The discharge of nine BWI jobsite employees,
including the four union carpenters, from December 12
through December 18, coincided with the transfer of the
Clarendon crew to the BWI jobsite during the week of
December 16.
The judge also did not draw any inference of antiunion
motivation from what he found to be the Respondent’s
assertion of pretextual defenses of its action: the exag-
geration of work and attendance deficiencies and the
transfer of the Clarendon crew. Since I find the evidence
relied on by the judge was insufficient to meet the Gen-

2 Like Chairman Battista, I do not regard Heavener’s statement that
the Union was not wanted at Facchina as evidence of animus.
eral Counsel’s initial burden of proof,3 it is unnecessary
to pass on the validity of the Respondent’s asserted de-
fenses. John J. Hudson, Inc., 275 NLRB 874, 875
(1985). Cf. St. Mary’s Honor Center v. Hicks, 509 U.S.
502 (1993) (in title VII action, rejection of defenses as
pretextual does not compel judgment for the plaintiff).
However, it is important to note that neither the Gen-
eral Counsel nor the judge challenges the legitimacy of
the Clarendon crew transfer itself.4 The job-to-job
movement of a core group of valued employees is com-
monplace in the construction industry, and the transfer at
issue is consistent with this practice. Since the crew
transfer was legitimate, the General Counsel must show
either that, if not motivated by union animus, the Re-
spondent would not have displaced BWI workers to
make room for the transfers or that it would not have
selected the four union carpenters to be displaced. In my
view, the General Counsel has failed to make that show-
ing. There is no evidence that there was enough work at
BWI for the existing work force and the Clarendon crew.
There also is no evidence of disparate treatment in the
selection of the four union carpenters for displacement
by Clarendon crew members. Even if the Respondent
misrepresented their work records, we still have no af-
firmative evidence that they were so superior, in terms of
work performance or attendance, to their Clarendon crew
counterparts or their carpentry coworkers at the BWI site
that they should have been retained absent a discrimina-
tory motive. I recognize that Board precedent permits
drawing an inference of unlawful animus and motivation
from the assertion of pretextual defenses, but such an
inference is not required, and I would not draw it in the
circumstances of this case. Id.
In sum, I find the General Counsel has failed to meet
his burden of proving that the Respondent discharged the
four alleged discriminatees because of their union affilia-
tion and activities. I would reverse the judge and dismiss
the complaint allegation of a violation of Section 8(a)(3)
and (1).
Thomas J. Murphy, Esq., for the General Counsel.
Michael L. Stevens, Esq. (Arent, Fox, Kintner, Plotkin & Kahn,
PLLC), of Washington, D.C., for the Respondent.
Daniel M. Stanley, Esq. (DeCarlo, Connor & Selvo), of Los
Angeles, California, for the Charging Party.

3 The General Counsel did not except to the judge’s failure to rely on
any other evidentiary factors to support finding that the General Coun-
sel met his initial Wright Line burden.
4 If the General Counsel had done so, he logically would have named
all of the displaced BWI employees as discriminatees in the complaint,
even those who were not union members or activists.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD890
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This
case was heard before me on June 10, 12, 13, 14, and 27, and
July 30 and 31, 2002, in Baltimore, Maryland, pursuant to a
charge filed on August 31, 2001, by the Carpenters Regional
Council Baltimore and Vicinity a/w United Brotherhood of
Carpenters and Joiners of America (the Union) against Fac-
china Construction Company, Inc. (the Respondent). On De-
cember 28, 2001, the Acting Regional Director for Region 5 of
the National Labor Relations Board (the Board) issued a com-
plaint against the Respondent alleging that it violated Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).
On about January 9, 2002, the Respondent filed a responsive
answer admitting some of the allegations of the complaint but
essentially denying the commission of any unfair labor prac-
tices; the Respondent also asserted certain affirmative defenses
to the allegations.
At the hearing, the parties were represented by counsel and
were afforded full opportunity to be heard, examine and cross-
examine witnesses, and introduce evidence. On the entire re-
cord, including my observation of the demeanor of the wit-
nesses, and after considering the briefs1 filed by the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION—THE BUSINESS OF THE RESPONDENT
The Respondent, a Maryland corporation, with an office and
place of business in La Plata, Maryland, has been engaged as a
concrete frame contractor in the construction industry. The
Respondent admits that during the preceding 12 months, in
conducting its business operations, the Respondent purchased
goods valued in excess of $50,000 directly from points located
outside the State of Maryland. Accordingly, I would find and
conclude that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION
It is admitted by the parties that the Union, Carpenters Re-
gional Council Baltimore and Vicinity a/w United Brotherhood
of Carpenters and Joiners of America has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a concrete contractor. During all times
material to the instant litigation, the Respondent was under
contract to add two stories to an existing parking garage and
build an adjacent parking garage at the Amtrak Station at Bal-
timore/Washington International Airport (BWI). This project
began in approximately November 2000, and ended about a

1 The Charging Party did not file a separate brief, electing instead to
join in the General Counsel’s brief.
year later in November 2001.2 The instant litigation centers on
the BWI project.
The BWI project’s general or prime contractor was Coakley
and Williams (C&W). C&W’s onsite superintendent was Pro-
ject Superintendent Larry O’Quinn. The Respondent served as
a subcontractor to Coakley and Williams. Gerald Ours, its
onsite project superintendent, was responsible for the overall
supervision of the project, including the hiring, firing, and lay-
ing off of employees.3
The Respondent employed around 120 employees at the
BWI project during the peak periods of the project’s existence.
Each employee was assigned to a crew headed by a carpenter
(or a laborer) foreman who directed the work of the employees
assigned to him.4 Carpenter foremen were paid on an hourly
basis as opposed to salary and received about $1 more than the
carpenter employees on their crew who were paid at the pre-
vailing rate of $21 per hour. Carpenter foremen, like the
crewmembers, received payment for overtime work.5
The Respondent required its employees to follow a regular
work schedule that began at 7 a.m. and ended at 3:30 p.m.,
Monday through Friday. On occasion as the need arose, work-
ers were required to report at 6:30 a.m. or earlier, and on Satur-
days. However, the Respondent did not mandate that its em-
ployees work overtime on the weekdays or on Saturdays. The
Respondent did not have an explicit rainy day or inclement
weather policy; employees were not required to work on rainy
days or in inclement weather if they chose not to.
During March 2001, the Respondent was hiring carpenters
for the BWI project and hired four persons, one of whom was a
known member of the Union. At the time of hire, each of the
four individuals, William Salbeck, Lester Smith, Alfred Keene,
and Lynwood Keene, completed application forms and signed a
document, “Hiring Policy and Rules of Conduct,”6 on his first
day of work. The four individuals, all alleged discriminatees,
were interviewed and hired by Ours during the period covering
March 1 to 14. During the period covering April 11 to 18, the
Respondent discharged—laid off—the four.
B. The Substantive Charges
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act by interrogating job applicants regarding
their union membership, union activities, and union clothing;
coercing employees by telling them that all the union carpenters
had to be laid off; and telling employees they could not pass out
union literature. The Respondent is alleged to have violated
Section 8(a)(3) and (1) by discharging employees Lester Smith,

2 All dates, except where specifically noted, are in 2001.
3 Ours is an admitted supervisor and/or agent of the Respondent.
4 This litigation concerns only the carpenter foremen and their crews.
The laborer foremen and associated crews are not implicated in unfair
labor practice allegations and are only mentioned for the sake of clarity.
5 The Respondent’s carpenter foremen do not have direct authority
to hire, transfer, suspend, layoff, recall, promote, discharge, or assign
employees (except to various areas of the specific job the crew leader
supervises). The Respondent’s carpenter foremen cannot directly re-
ward or discipline employees on their crews. Other distinctions and
attributes of the carpenter foremen will be discussed later in this deci-
sion.
6 See R. Exh. 2.
FACCHINA CONSTRUCTION CO. 891
William Salbeck, Alfred Keene, and Lynwood Keene because
of their union support and activities.7
C. The Interrogation Charges
1. The alleged March 2001 unlawful interrogation by
Gerald Ours of Elton Floyd
The General Counsel called Elton Floyd to establish the
charge. Floyd testified that he saw newspaper advertisements
indicating that the Respondent was hiring around the beginning
of March, or perhaps the end of February 2001. Floyd said he
and his brother-in-law responded to the ad and were inter-
viewed by Ours at the BWI jobsite.8 According to Floyd, Ours
provided him and his in-law an application form to be filled
out. Ours then asked them whether they were with the Union.
Floyd stated that he and his in-law responded that they had
never worked for the Union nor did they belong to any union
and proceeded to fill out the application. Floyd stated that he
and his in-law began working for the Respondent as a laborer
the next day and were assigned rigging jacks for the concrete
pours.
Floyd denied that Ours indicated that if he were a union
member, he would not be hired.
2. The alleged March 14, 2001 interrogation by Ours of
Salvatore Christopher Astarita
Astarita testified that on about March 14, 2001, he went to
the BWI jobsite looking for work; at the time he was wearing a
union organizer hat9 and a lightweight windbreaker-type jacket
emblazoned with union insignia.10 Upon his arrival at the of-
fice trailer, he was directed by the secretary to speak to Ours
about hiring opportunities.
According to Astarita, Ours asked him if he had experience
working with concrete. Astarita responded that he did and
named three concrete contractors for whom he had worked.
Ours then asked him if he were a union carpenter. According
to Astarita, he told Ours that he was a member and had been a
member since 1985, to which Ours asked if the Union were
treating him well. Astarita said he was being treated fine by the
Union. The conversation ended with Ours telling him the
Company was not hiring.
Gerald Ours testified at the hearing and specifically denied
making the statements attributed to him by Floyd and Astarita.

7 The Keenes are brothers. For the sake of clarity and brevity refer-
ences to each will be by their given names. Lynwood is also known as
Lynwood Keene-el.
8 Floyd worked for the Respondent for a relatively short period and
quit working for the Company because he was unable to make the
commute between Washington, D.C. (his place of residence), and the
Facchina jobsite. Floyd admitted that he was frequently absent from
work because of the difficulties posed by his commute. It should be
noted here that Floyd’s brother-in-law did not testify at the hearing.
9 See GC Exhs. 39 and 40, photos that depict the type of union hat
Astarita said he wore on the day in question.
10 See GC Exhs. 42, 43, and 44, photos of the union jacket type As-
tarita wore to the jobsite.
3. The April 11, 2001 alleged interrogation by
Carpenter Foreman Leon Heavner
The General Counsel called discriminatee Lester Smith to
testify about this charge.
Smith stated that he has been a member of the Union for
about 5 to 7 years; he has been a journeyman carpenter for
around 20 years.
Smith related his brief conversation with Carpenter Foreman
Leon Heavner on April 11. According to Smith, on that day he
was wearing his union jacket, a union T-shirt, and his hardhat
on which he had affixed union stickers.11 After a time while
working in a garage stairwell, Heavner asked him why he was
wearing that union stuff. Smith replied that he was a member
of the Union, to which Heavner, according to Smith, then asked
why was he in the Union.12 Smith noted that Heavner never
told him to or suggested that he take the union paraphernalia off
or not wear it.
Heavner, testifying at the hearing, could not recall who Les-
ter Smith was but denied asking him or anyone else about
clothing at the BWI jobsite. Heavner said further he did not
even notice anyone wearing union T-shirts at BWI.
D. The Respondent’s Allegedly Coercive Statements to Em-
ployees13 by Carpenter Foreman Mike Spargo
1. The April 12, 2001 statements
The General Counsel called alleged discriminatee William
Salbeck to establish this charge.
Salbeck testified that on April 12, 2001, he reported at about
6:45 a.m. for work and as he was about to go to his work as-
signment, his crew foreman, Mike Spargo, said that he had to
get rid of all the union carpenters because he was bringing

11 Smith identified the photographs of the type of union clothing he
wore on April 11—union organizer T-shirts (GC Exhs. 36, 37, and 38),
union ball caps (GC Exhs. 39 and 40), union windbreaker jacket (GC
Exhs. 42, 43, and 44), and union stickers (GC Exhs. 35).
12 This was Smith’s version of Heavner’s conversation, developed on
cross-examination. On direct examination, Smith stated that Heavner
stopped in the stairwell and he asked about the stickers and colors and
what not. “I told him I was in the Union.” (Tr. 566.) Smith provided a
sworn statement to the Board agent and stated therein that “Leon asked
me why I was wearing the union stuff and I told him that I was in the
Union.” Smith admitted that he did not include Heavner’s question,
“You sure you’re in the Union?” because it was simply part of a con-
versation that was going back and forth. (Tr. 590–591.)
13 At the hearing on June 30, 2002, the General Counsel moved to
amend the complaint to include an allegedly coercive statement by
Heavner to employees on April 12, 2001, to the effect that if they
wanted to work, they should stop wearing union decals. (Tr. 809.) He
also sought an amendment on July 27, 2002, charging the Respondent,
through Mike Spargo around mid-April 2001, with unlawfully coercing
employees by telling them they could not bring the Union to Facchina.
I did not immediately grant or deny the motions, which are opposed by
the Respondent on grounds of prejudice and untimeliness, and reserved
judgment on them. I would deny the motions to amend in agreement
with the Respondent that the requested amendments would cause
prejudice to it on grounds of timeliness. It is my view that the state-
ments should have been disclosed in the investigatory stage of the
proceedings and made a part of the charges in the original complaint.
However, I, nonetheless, have considered these statements as part of
the totality of evidence presented herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD892
workers in from other jobs to take our places. Salbeck said that
he merely shook Spargo’s hand and said, “See you.”
Salbeck said that Spargo did not say that he (and other union
carpenters) was being laid off, insisting that Spargo said the
union carpenters were being gotten rid of. However, Salbeck
noted that Spargo did not say he was being laid off—gotten rid
of—because of any particular union activity on his (or the oth-
ers) part.
2. The April 17, 2001 statements
The General Counsel called Lynwood and Alfred Keene to
testify about this matter.
Lynwood Keene testified that on April 17, he and his brother
reported to the BWI jobsite at about 6:30 a.m. Lynwood re-
lated that he and his brother were wearing union decals on their
hardhats, union baseball caps, union T-shirt, and carpenter-type
jeans, which he described as their “uniform.” Lynwood said
that he and his brother began distributing copies of handbills14
in both English and Spanish exhorting the employees at BWI to
join the Union.
Lynwood stated that he and his brother had been distributing
the handbills for about 15 to 20 minutes when Spargo arrived
on the site and told them they could not distribute the materials.
According to Lynwood, Spargo also said at that time that un-
ions were not wanted, that the Respondent was better than the
Union, that the Respondent took better care of the employees.
Spargo also stated that he used to be in the union but quit be-
cause he once was laid off for too long a period. Spargo said
that since being employed by the Respondent, he had never
been laid off.15
Alfred Keene testified about the April 17 incident16 involv-
ing his and his brother’s distributions of the handbills. Alfred
said that he, his brother Lynwood, and another union member,
William Coranado, reported to the jobsite at around 6 a.m.;
each man was wearing union apparel—T-shirts and ball caps.
Alfred said that the three of them began passing out handbills to
employees as they were coming to work until around 6:55 a.m.
According to Alfred, Mike Spargo saw them passing out the
handbills but did not interfere with them because they were not
on the Company’s time and were not on the jobsite; they were
at the front gate. Alfred explained, however, Spargo had at first
instructed them to stop handbilling because, as Spargo put it,
BWI was a construction site. However, Coranado told Spargo
that the law permitted the distribution because we were not on
the jobsite premises and our official workday did not start until
7 a.m. Coranado said that unless Spargo was going to put us on

14 See GC 41, copies of the union handbills that were, according to
Lynwood, green or blue. The copy is in black and white.
15 Lynwood also said that Spargo, while complimenting his work (he
had no complaints about it), told him if he wanted a future (with the
Respondent), he had to stop trying to bring the Union to Facchina,
including talking to the other employees about the advantages associ-
ated with the Union, or just knowledge of the Union.
16 Alfred originally stated that he and his brother passed out the
handbills on April 16, but it is clear that he meant April 17 because of
other events involving him and his brother at the jobsite that actually
occurred on April 16. These other events will be discussed later in this
decision.
the clock they were engaging in permissible conduct.17 Alfred
stated they thus continued to pass out the literature with no
further interference from Spargo.18
Mike Spargo was called by the Respondent to defend against
these charges.
Spargo denied ever telling Salbeck that he had to get rid of
all the union carpenters and, in fact, stated that he never men-
tioned the Union on Salbeck’s last day of employment.
Regarding the April 17 encounter, Spargo denied that he told
any employees outside the front gate at BWI to stop passing out
union literature. Spargo admitted that on one occasion on April
12, he told Lynwood to stop passing out union literature be-
cause it was after 7 a.m. and the scheduled safety meeting had
commenced. However, he denied putting the brothers on the
clock on the day to stop them from passing out literature or
because unions were not wanted at Facchina. Spargo also de-
nied telling Lynwood or anyone else that Facchina was better
than the Union, or that the Company was not looking to be
union.19
E. The Supervisory and/or Agency Status of the
Respondent’s Crew Foremen
As a preliminary matter, the Respondent first defends against
the 8(a)(1) allegations by contending that Carpenter Foremen
Mike Spargo and Heavner (or any other of its crew foremen)
are not supervisors and/or agents within the meaning of Section
2(11) and (13) of the Act; that, arguendo, any statements they
may have made cannot therefore be imputed to the Respondent.
As I have previously determined, in agreement with the Re-
spondent, it is clear on the record that its crew foremen did not
have authority to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline members of their
crew—traditional and customary supervisory powers. The
Respondent also argues that while the foremen direct the work
of the crew, they do so only based on the project plans and
blueprints prepared by the company architect and on Ours’
specific instruction and direction. The Respondent admits that
foremen completed timesheets but that they merely took infor-
mation from timecards and entered them on the sheets—a cleri-
cal function. Furthermore, the Respondent submits that while

17 Alfred related that he passed out similar handbills on April 11 at
about 6 to 6:30 a.m., just before a scheduled safety meeting in the ga-
rage area. On that date, Alfred said that Spargo put him and his brother
“on the clock,” so they ceased handing out the handbills. Lynwood
corroborated that part of his brother’s testimony except he did not say
that Spargo put them on the clock but told them to stop handbilling at
about 6:45 a.m., 15 minutes before the safety meeting was to start and
their official workday began. Lynwood also testified that later he asked
Heavner why they could not handbill prior to 7 a.m. and was told that
“the Union was not wanted there [at Facchina], that if you want to work
[at Facchina], there was no problem with our work, just stop wearing
the union decals and things of that nature—it’s a conflict of interest.”
(Tr. 616.)
18 Coranado testified at the hearing, but his involvement in the April
17 handbilling matter was not explored by the parties.
19 Spargo also denied telling Lynwood or other employees to stop
wearing union clothing because of any conflict of interest or that the
Keenes should stop trying to bring in the Union if they wanted a future
with the Company.
FACCHINA CONSTRUCTION CO. 893
foremen could order several small items like nails and lumber,
they could not buy supplies for the Company. The Respondent
also points out that foremen were hourly as opposed to salaried
workers, making only $1 more than the crew members, and
received no paid vacation or bonuses as did truly supervisory
employees. On balance, the Respondent submits that its fore-
men did not exercise sufficient independent judgment to qualify
as supervisors under the Act.
As to the agency issue, the Respondent argues that the fore-
men’s wearing of white hats, having radios, and performing as
they did on the BWI project does not translate into “agency”
within the meaning of the Act.20
Section 2(3) of the Act defines “employee,” and specifically
excludes from that term “any individual employed as a supervi-
sor.” Under Section 2(11) of the Act,
The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, 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 connection with the foregoing the exercise of such author-
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment.
The Board has held that these functions are in the disjunctive
and the indicia specified in Section 2(11) are sufficient to con-
fer supervisory status on an individual if the statutory authority
is exercised with independent judgment and not in a routine
manner. American Commercial Barge Line Co., 337 NLRB
1070 (2002); Allen Services Co., 314 NLRB 1060 (1994). See,
e.g., Health Care & Retirement Corp., 328 NLRB 1056 (1999);
and John N. Hansen Co., 293 NLRB 63, 64 (1989).
The Supreme Court in NLRB V. Health Care & Retirement
Corp., 511 U.S. 571, 573–574 (1994), established the test for
determining whether an employee can be deemed a supervisor
under Section 2(11) of the Act.
First, does the employee have authority to engage in 1 of the
12 listed activities? Second, does the exercise of that author-
ity require “the use of independent judgment?” Third, does
the employee hold the authority in the “interest of the em-
ployer?”
These questions must each be answered in the affirmative for
an employee to be found a statutory supervisor.
Regarding statutory agency, the Board applies common law
principles of agency to determine whether an individual pos-
sesses actual or apparent authority to act for an employer, and
the burden of proving an agency relationship is on the party
who asserts its existence. See, e.g., Pan-Oston Co., 336 NLRB
305, 305–306 (2001). “Apparent authority results from a mani-
festation by the principal to a third party that creates a reason-
able basis for the latter to believe that the principal has author-
ized the alleged agent to perform the acts in question.” South-

20 Actually, the Respondent did not argue very strenuously or much
at all on the agency issue. I have attempted to state their position based
on my gleanings from the Respondent’s argument against a finding of
supervisory status for the foremen.
ern Bag Corp., 315 NLRB 725 (1994). The test is whether,
under all the circumstances, employees would reasonably be-
lieve that the alleged agent was reflecting company policy and
speaking and acting for management. See, e.g., Pan-Oston Co.,
supra, citing Waterbed World, 286 NLRB 425, 426–427
(1987), enfd. mem. sub nom. 974 F.2d 1329 (1st Cir. 1992).21
The General Counsel submits that each of the Respondent’s
crew foremen, by their testimony at the hearing,22 admitted to
performing the following functions as part of their regular du-
ties and responsibilities: (1) verification of timesheets for their
crewmembers’ work; (2) delegation and reviewing of crew-
members’ work; (3) moving crewmembers around the jobsite to
complete the project in timely fashion; (4) handling day-to-day
(crewmember) grievances; (5) recruiting employees to work
overtime; policing the project site; (6) allowing employees to
leave early and putting them “on the clock.” Accordingly, he
contends that these functions establish that crew foremen func-
tioned as a statutory supervisor in the Respondent’s operations.
The General Counsel also argues that the Respondent also
held out the crew foremen act as statutory agents. He submits
that the record discloses that all crew foremen wore white
hardhats as opposed to the green ones provided for the crew
workers. Foremen also were provided radios and keys to the
gang boxes where crewmembers’ tools were kept. He also
points out that foremen also were given clear agency roles by
the Respondent, including prohibiting literature distribution,
distributing paychecks, informing employees of their layoff or
termination, and advising management of problems with em-
ployees.
I would find and conclude that the Respondent’s crew fore-
men are statutory supervisors and in the alternative statutory
agents. First, while the General Counsel’s recitation of the
functions of the foremen is accurate, I am not altogether con-
vinced of the amount of independent judgment the Respon-
dent’s foremen possessed in performing many of their func-
tions, many of which seem more in the way of clerical and
routine functions.
However, it is very clear, and the General Counsel’s argu-
ment illustrates this point, that the crew foreman possesses the
authority to responsibly direct his crew members in the per-
formance of their job assignment and that his independent
judgment is heavily employed in directing the crew members.
Notably, Carpenter Foremen Mike Spargo and Heavner were
highly experienced carpenters with demonstrated and recog-
nized leadership skills. The Respondent entrusted these men
with managing and deploying a crew in vital assignments at the
BWI project. Heavner and Spargo (and other foremen) inde-
pendently assigned crew members to assignments and evalu-
ated the crewmembers’ abilities and competencies in making
work assignments. Foremen like Heavner and Spargo also
were entrusted by the Respondent with making sure the work
was done properly, and in exercise of that trust, Spargo, for
instance, testified he would order “redo’s” of work and would

21 These principles and authorities are taken from Ready Mix, Inc.,
337 NLRB 1189 (2002).
22 The foremen who testified at trial are Mike Spargo, Marshall Jen-
kins, Heavner, and Ben Spargo.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD894
require work to be done in a certain way. In this exercise of
this authority, the foreman’s independent judgment was called
into play. Admittedly, Spargo and Heavner were provided the
plans for the job at hand and reported to the project supervisor
regarding their needs to finish the job. However, once given
their marching orders, as it were, these foremen utilized their
skills and experience independent of management and directed
their crewmembers in the performance of job assignments.
This, to me, is the type of independent judgment exercised in a
nonroutine manner associated with the responsible direction of
employees within the meaning of Section 2(11).
In the alternative, the foreman’s agency status, in my view, is
beyond cavil established on the record. Clearly, based on
Heavner’s and Spargo’s statements and the credible evidence of
the employees working on the BWI site, it is abundantly clear
that crew foremen were reflecting company policy and openly
and acting for management.23 I would find and so conclude.
Having determined that the Respondent’s crew foremen,
specifically and most certainly Mike Spargo and Leon Heavner,
are statutory supervisors and in the alternative statutory agents,
I turn to the substantive charges alleging violations of Section
8(a)(1).
It will be helpful first to discuss applicable legal principles.
Section 7 of the Act (in pertinent part) provides that
“[e]mployees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also have the
right to refrain from any or all such activities.” U.S.C. § 157.
Thus, employees have the right to, inter alia, support or oppose
union representation.
Section 8(a)(1) of the Act provides: “It shall be an unfair la-
bor practice for an employer (1) to interfere with, restrain, or
coerce employees in the exercise of rights guaranteed in Sec-
tion 7.” The test under Section 8(a)(1) does not turn on the
employer’s motive or whether the coercion succeeded or failed.
The test is whether the employer engaged in conduct, which it
may be reasonably said, tends to interfere with the free exercise
of employee rights under the Act. Gissel Packing Co., 395
U.S. 575 (1969); Almet, Inc., 305 NLRB 626 (1991); and
American Freightways Co., 124 NLRB 146, 147 (1959). Thus,
it is violative of the Act for the employer or its supervisors and
agents to engage in conduct, including speech, which is specifi-
cally intended to impede or discourage union involvement. F.
W. Woolworth Co., 310 NLRB 1197 (1993); Williamhouse of
California, Inc., 317 NLRB 699 (1995).
The test of whether a statement or conduct would reasonably
tend to coerce is an objective one, requiring an assessment of
all the surrounding circumstances in which the statement is

23 So that the basis for my finding of agency is clear, the undisputed
evidence discloses that, among other things, the Respondent’s crew
foremen are issued white hardhats, radios, and keys to employer prop-
erty, perform many clerical functions routinely, relay instructions from
or on behalf of management to employees, and report problems or other
personal related issues to management. These functions and duties of
the Respondent’s carpenter foremen are surely emblematic of agency
within the meaning of Sec. 2(13).
made as the conduct occurs. Electrical Workers Local 6 (San
Francisco Electrical Contractors), 318 NLRB 109 (1995).
Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Ho-
tel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985). The Board has noted in this regard that the
context of statements can supply meaning to the otherwise am-
biguous or misleading expressions if considered in isolation.
Debbie Reynolds Hotel, 332 NLRB 466 (2000).
In the interest of maintaining production and workplace dis-
cipline, employers can lawfully impose restrictions on work-
place communications among employees and, in fact, when
justified by such factors or considerations, employers can pro-
hibit all talking while employees are working. Stone & Web-
ster Engineering Corp., 220 NLRB 905 (1975); Pilot Freight
Carriers, Inc., 265 NLRB 129, 133 (1982).
However, no-solicitation rules or policies are unlawful if
they unduly restrict the organizational activities of employees
during periods and in places where these activities do not inter-
fere with the employer’s operations. Our Way, Inc., 268 NLRB
394 (1983); Laidlaw Transit, Inc., 315 NLRB 79, 82 (1994),
cited in Adtranz, ABB Daimler-Benz, 331 NLRB 291 (2000).
Therefore, a prohibition on communication among employees
cannot be overly broad, so broad that it prohibits communica-
tion among employees during paid nonwork periods such as
breaks and lunchbreaks or during the unpaid nonwork periods
such as before or after work, so long as the employees are law-
fully on the employer’s premises. Such broad prohibitions are
presumptively invalid. St. John’s Hospital, 222 NLRB 1150
(1976). Said another way, employers may lawfully ban work-
time solicitations when defined as not to include before or after
regular working hours, lunchbreaks, and rest periods. Sunland
Construction Co., 309 NLRB 1224, 1238 (1992). However,
without violating the Act, employers may remind employees of
existing rules or established policies regarding solicitation.
Bryant & Stratton Business Institute v. NLRB, 140 F.3d 169 (2d
Cir. 1998).
Regarding employer interrogations of employees, it is well
established that interrogation of employees is not per se illegal.
The Board has held that the test of the illegality of interrogation
is whether, under all the circumstances, it reasonably tends to
interfere with, restrain, or coerce employees in the exercise of
their rights. Rossmore House, supra.
Factors to be considered about questioning of an employee
include time, place, personnel involved, and information
sought. Blue Flash Express, Inc., 109 NLRB 591 (1954);
American Freightways Co., supra; and NLRB v. Illinois Tools
Works, 153 F.2d 811 (7th Cir. 1946).
Notably, also, the Board has considered even arguably brief,
casual, and not followed up questioning violative of the Act if
the words and context contain elements of coercion and inter-
ference. Sea Breeze Health Care Center, 331 NLRB 1131
(2000). In Sea Breeze Health Care Center, the Board under-
scored its decision by citing the observation of the Fifth Circuit
in NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338,
1342 fn. 7 (1980):
[A]n employee is entitled to keep from his employer his
views so that the employee may exercise a full and free
FACCHINA CONSTRUCTION CO. 895
choice on whether to select the Union or not, uninfluenced by
the employer’s knowledge or suspicions about those views
and the possible reaction toward the employee that his views
may stimulate in the employer. That the interrogation might
be courteous and low keyed instead of boisterous, rude, and
profane does not alter the case. [Quoting from the underlying
decision in Laredo Coca Cola Bottling Co., 241 NLRB 167,
172 (1979.]
Finally, Section 8(c) provides that:
The expressing of any views, argument, or opinion, or the dis-
semination thereof, whether in written, printed, graphic, or
visual form, 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. [29 U.S.C. § 158(c).]
The Board has noted that Congress added Section 8(c) to the
Act in 1947 as part of the Taft-Hartley Act, because it believed
that the Board has made it “excessively difficult for employers
to engage in any form or noncoercive communications with
employees regarding the merits of unionization.”
F. Discussion and Conclusions of the 8(a)(1) Allegations
Any discussion of the 8(a)(1) charges must begin with the
query: Did the management employees make the alleged of-
fending statements? If so then, were the statements of the type
that can be reasonably said to interfere with the employees’
Section 7 rights.
Turning to the alleged interrogations of Floyd and Astarita, I
would credit both men’s testimony regarding their encounter
with Ours. I note that Floyd impressed me as being especially
candid, and he was a laborer, not a carpenter. In a sense then,
he was somewhat disinterested in this matter. Floyd was hired
by Ours but admitted that he was not a very reliable worker for
the Respondent because of the commuting distance he had to
travel. He thus was candid and bore no ill will toward the Re-
spondent. He simply appeared to be testifying truthfully at the
hearing.
Astarita, though an obvious unionist at the time, in likewise
appeared to be truthful about his encounter with Ours, which
was very similar to Floyd’s. Thus, Ours’ line of questions takes
on a certain pattern. In effect then, Floyd is corroborated by
Astarita and vice versa. Ours, for his part, simply denied mak-
ing the statements. Under the circumstances—essentially two
applicants for hire at around the same time, stating under oath
that they were asked about their union affiliation—Ours’ sim-
ple denial is not sufficient or persuasive.
The Respondent argues that even if Ours made the state-
ments (queries) attributed to him, there was no violation of the
Act. The Respondent essentially argues that Ours’ questions
had no effect on his hiring decisions. As I have noted, neither
an employer’s motive or success or failure in making the state-
ments is determinative of an 8(a)(1) violation.
Accordingly, I am in agreement with the General Counsel
that the Respondent, through Ours, violated the Act by ques-
tioning the two job applicants about their union affiliation or
membership, and how the Union was treating them was unlaw-
fully coercive and supports here a finding of a violation of the
Act. I would so find and conclude.
Turning to Smith’s alleged conversation with Heavner, I note
that this conversation was of the one-on-one type. The General
Counsel argues that Smith’s version of the conversation in the
stairwell should be credited because he testified in a concise
and forthright manner. He further submits that Heavner’s
statements to Smith were not innocuous or casual, especially
when considered with the Respondent’s subsequent termination
of Smith and the other alleged discriminatees. Thus, the Gen-
eral Counsel contends that Heavner’s questioning of Smith was
part and parcel of the totality of its unlawful conduct in this
case and, under these circumstances, constitutes a violation of
Section 8(a)(1).
The Respondent argues that Smith’s testimony about the en-
counter with Heavner vacillated between whether Smith volun-
teered to Heavner that he was in the Union or Heavner asked
him about his union affiliation. Therefore, Smith’s testimony is
not reliable and should not be credited. The Respondent notes
that Heavner credibly denied asking Smith anything about his
union clothing and did not even notice Smith’s (or anyone
else’s) attire. The Respondent also contends that even if Heav-
ner did question Smith that under the circumstances—Smith’s
open and active support for the Union clearly obvious by wear-
ing of his clothing and conversation—such questioning was not
unlawful.
Smith impressed me as a strong, accurate, and confident wit-
ness. He answered all questions posed to him without hesita-
tion or evasion; he seemed very candid. I would find and con-
clude that his version of the encounter with Heavner is the more
credible. I also note that the type of clothing Smith had on,
stickers and emblems with growling bulldogs and festooned
with union logos, in my view, would be hard to miss or not
notice. I found Heavner’s testimony that he did not notice
Smith or anyone wearing this type of garb on the jobsite not
convincing, to say the least. However, while I would find that
Heavner’s questions and statements attributed to him by Smith
were indeed made, I do not think the questioning was violative
of the Act. Under the totality of the circumstances, including
Smith being an active union supporter who, by his clothes and
responses to Heavner, openly declared his union ties, Heavner’s
questions and statements were not coercive and could not be
reasonably said to interfere with Smith’s Section 7 rights. I
would recommend dismissal of this aspect of the complaint.
Directing myself to the statement Mike Spargo allegedly
made to Salbeck, here again witness credibility must be ad-
dressed as a threshold issue. Spargo denied making the state-
ment. Salbeck insisted that he did and produced a journal of his
daily activities, which he maintained at the project. The journal
contains an entity for April 12, which states (in Salbeck’s
handwriting):
Layoff—all union carpenters—so they can bring steady
workers from other jobs to take our place & were not hiring
any new carpenters24

24 Salbeck’s journal contained in GC Exh. 58. In another part of the
journal Salbeck wrote “4/12 Layoff, all union carpenters, so they can
bring steady workers from other jobs, not hiring any new carpenters.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD896
Notably, as will be seen later herein, the Respondent con-
tends that the layoff of the four alleged discriminatees was
predicated in significant part on its needs to bring in its more
senior workers from another jobsite.
I would credit Salbeck’s testimony that Spargo made the
statement in question. Contrary to the Respondent, I do not
view Salbeck’s insouciant response to be significant for pur-
poses of weighing his credibility nor for its legal effect.
The main issue then is whether this statement is reasonably
coercive given the circumstances viewed in their totality.
The Respondent contends that even if Spargo made the
statement it was not coercive. The Respondent submits, in
essence, that the statement reflects a statements of fact—that
only Salbeck’s union friends were being laid off to make room
for a more serious crew of the Respondent’s workers.25
The General Counsel essentially argues that Spargo’s state-
ments can reasonably be said to impede or discourage union
involvement as evidenced by the clear nexus between the of-
fending statements and the discharge of Salbeck and the other
three union carpenters.
Undoubtedly, Spargo’s statement at bottom is a discharge
notice and, under normal circumstances, an employer’s telling a
worker that he is being laid off in favor of more senior employ-
ees in the employer’s operation, in my view, would not be ac-
tionable under the Act. However, here Spargo told Salbeck that
he had to lay off—get rid of the—union carpenters. The issue
becomes whether this statement in context reasonably may be
said to have interfered with Salbeck’s and others employees’
rights under the Act.
I would answer this question in the affirmative. Notably, by
telling Salbeck that only the union carpenters had to make room
for the senior crew, Spargo (it could reasonably be said or in-
terpreted) implied that other nonunion employees, perhaps
those with even less seniority than Salbeck and the others,
would be spared a layoff simply because they were not union
carpenters or other tradesmen. The Respondent’s other em-
ployees could then reasonably surmise that it is not in their best
interest to belong to a union at the Respondent’s business since
union carpenters alone were subject to layoff when senior
crews need work. Thus, by telling Salbeck that the union car-
penters had to be let go, the Respondent, in my view, unlaw-
fully interfered with his and other employees’ rights—to form,
join, or assist a labor organization—and in context also unlaw-
fully coerced them under the Act. I would find a violation of
the Act.
Regarding the April 17 incident, I would credit the testimony
of the Keene brothers. Both Alfred and Lynwood testified
confidently and calmly essentially that Mike Spargo told them
to stop distributing the handbills during a nonworktime and
place (off premises) when and where the law clearly permits
the distribution of union materials. I recognize that Alfred’s
and Lynwood’s testimony is not entirely consistent. For in-
stance, Lynwood did not mention Coranado’s intervention and
explication of the law to Spargo. However, their testimony in

25 The Respondent submits that as a matter of fact not all union car-
penters were laid off at BWI; namely, union workers Charlotte Alford,
Bobby Blue, and Killer Robinson remained on the job.
material aspects was very consistent, mainly in that Spargo, at
some point, impermissibly interfered with their lawful distribu-
tion of the handbills. Spargo’s flat denial in the face of two
credible assertions about the incident and his conduct is simply
not persuasive. I would find and conclude that the Respondent
violated Section 8(a)(1) of the Act by telling employees Alfred
and Lynwood Keene to stop distributing union literature when
they were not on working time and were not on company prop-
erty.
G. The 8(a)(3) Unfair Labor Practices Allegations
The complaint essentially alleges that Salbeck, Smith, and
Alfred and Lynwood Keene were terminated/discharged by the
Respondent because of their activities in support and on behalf
of the Union.
Section 8(a)(3) of the Act makes it an unfair labor practice
for an employer to discriminate in regard to hire or tenure of
employment, or any term or condition of employment, to en-
courage or discourage membership in any labor organization.
29 U.S.C. § 158(a)(3).
Preliminary to determining whether an employer has dis-
criminated against an employee in violation of Section 8(a)(3)
or 8(a)(1) of the Act, the Board has held that the General Coun-
sel must first make a prima facie showing sufficient to support
the inference that the protected activity or activities of the em-
ployee was a motivating factor in the employer’s decision af-
fecting any term or condition of the employees’ employment.
If this is established, the burden then shifts to the employer to
demonstrate that the action would have occurred irrespective of
whether the employee was engaged in protected activity.
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981).
It is also well settled, however, that when an employer’s
stated motives for its actions are found to be false, the circum-
stances may warrant an inference that the true motive is one
that the employer desires to conceal. The motive may be in-
ferred from the totality of circumstances. Moreover, under
certain circumstances, the Board will infer animus in the ab-
sence of direct evidence. That finding may be inferred from the
record as a whole. Fluor Daniel, Inc., 304 NLRB 970 (1991).
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge of that activity,
animus, and adverse action against those involved, which has
the effect of encouraging or discouraging union activity. Jo-
seph Stallone Electrical Contractors, 337 NLRB 1139 (2002),
and Farmer Bros. Co., 303 NLRB 638, 649 (1991). Inferences
of animus and discriminatory motivation may be warranted
under all the circumstances of a case, even without direct evi-
dence. Evidence of suspicious timing, false reasons given in
defense, failure to adequately investigate alleged misconduct,
departures from past practices, tolerance of behavior for which
the employee was fired, and disparate treatment of the dis-
charged employees all support inferences of animus and dis-
criminatory motivation. Adco Electric, 307 NLRB 1113, 1123
(1992), enfg. 6 F.3d 1110 (5th Cir. 1993); Electronic Data
Systems Corp., 305 NLRB 219 (1991); Bryant & Cooper
Steakhouse, 304 NLRB 750 (1991); Visador Co., 303 NLRB
FACCHINA CONSTRUCTION CO. 897
1039, 1044 (1991); and In-Terminal Service Corp., 309 NLRB
23 (1992).
Once the General Counsel has made a prima facie case, the
burden shifts back to the employer. That burden requires a
respondent “to establish its Wright Line defense only by a pre-
ponderance of evidence.” The respondent’s defense does not
fail simply because not all of the evidence supports it, or even
because some evidence tends to negate it. Merrilat Industries,
307 NLRB 1301, 1303 (1992).
Directing myself to the instant charges, as a preliminary mat-
ter, it may fairly and accurately be stated, and the Respondent
concedes, that the Respondent’s project manager, Ours, hired
all four of the alleged discriminatees and knew or came to
know ultimately they were affiliated with the Union at or near
the time of their respective hires. Additionally, there is no real
dispute that the actual decision to discharge the four was made
by Ours, who employed his foreman, Mike Spargo, to deliver
the notice on or about the dates set out in the complaint; that is,
on or about April 12, 2001, for Smith and Salbeck and on April
18, 2001, for the Keene brothers.
Thus, the central issues for resolution of the 8(a)(3) charges
relate to the Respondent’s knowledge of the union activities of
the four and the purported reasons for their discharge.26
Regarding the Respondent’s knowledge of union activity, I
have previously discussed in the context of the 8(a)(1) allega-
tions that Mike Spargo knew that the Keenes were unionists
and, in fact, admitted that on April 12 he forbade their distribut-
ing union literature as a company safety meeting was about to
commence. The Respondent, while arguing strenuously against
Spargo’s supervisory status, nonetheless, concedes that Spargo
routinely reported to Ours about matters of importance. I be-
lieve that Spargo, in all likelihood, reported the Keenes’ activi-
ties to him.27 Contrary to the Respondent, I would find and
conclude that the Respondent knew of the Keenes’ union activi-
ties directly through the observation of its supervisor (agent),
Mike Spargo who, in my view not only communicated the
Keenes’ attempted distribution to Ours but, in all likelihood,
identified them as the distributors.

26 In agreement with the General Counsel, I would find and conclude
that the Respondent’s animus against the Union has been plainly estab-
lished by dint of the 8(a)(1) violations previously established herein.
However, I would find as additional indicia of the Respondent’s animus
against the union statements made by the Respondent’s crew foremen,
Heavner and Mike Spargo, to Lynwood Keene as follows: (1) Lynwood
Keene credibly testified that Heavner told him on April 12 that the
Union was not wanted at the Respondent and if he wanted to work
there, there was no problem with his work but just stop wearing the
union decals and things of that nature—it’s a conflict of interest. (Tr.
617.) (2) Lynwood also credibly testified that on April 17, Spargo said
he had no problem with his work but, if Lynwood wanted a future at
Facchina, he had to stop trying to bring the Union in, including talking
to their employees about the advantages of the Union and knowledge of
the Union. (Tr. 625.)
27 The Respondent, however, contends that Spargo did not identify
to Ours by name the employees who were distributing. Ours admitted
that Spargo informed him that he had asked workers not to hand out
literature to people who were working; that Spargo felt the distributors
were disrupting his work crew. (Tr. 23.) I do not find it credible that
Spargo did not identify the Keenes as the workers in question.
Regarding Smith, he said that he did not distribute litera-
ture,28 but, in my view, his support for the Union was also
communicated to the Respondent. My reasons are as follows:
First, Smith wore union “colors” to work in a prominent display
of his support for the labor organization around the time the
Keenes attempted to pass out the handbills, around April 11.
Smith also credibly testified about his conversation with Fore-
man Heavner—a person I have concluded is a statutory
agent/supervisor—and told him he was in the Union in re-
sponse to Heavner’s query about the stickers and colors. In my
view, Smith’s showing of the colors was “union activity”
communicated directly to one of the Respondent’s supervisors.
Because the Respondent’s foremen report to Ours, I would
infer that Heavner, in all likelihood, communicated Smith’s
open display of his support for the Union to Ours. I note also
that Smith was discharged by Ours exactly 1 day later after his
reported encounter with Heavner.
As to Salbeck’s union activities, it is clear from the begin-
ning of his time with the Respondent that he was not only a
union member but also an activist. Ours confirms this by ad-
mitting that he assumed the Keenes and Smith were union
members because Salbeck referred them for hire. Ours also
admitted that after the four were hired, he recalled seeing each
wearing union T-shirts now and then. Ours claimed that he,
however, did not witness Salbeck, or the Keenes or Smith for
that matter, engaging in specific union activities. Nonetheless,
in spite of this denial, I would conclude that Ours had good
reason to believe that Salbeck was part of the Union’s organiz-
ing activity if for no other reason than Salbeck was first hired
and introduced the other union activists to the BWI project.29
Based on the foregoing, I would find and conclude that the
General Counsel has met his initial burden under Wright Line
regarding the four alleged discriminatees.
The Respondent principally contends that the Respondent’s
decision to terminate the four union carpenters had nothing to
do with their wearing union paraphernalia or distributing union

28 Interestingly, Lynwood Keene said that Smith distributed hand-
bills but that he did not think Ours observed him.
29 The Respondent called as one of its witnesses David Richard Ro-
day, who was assigned to Ben Spargo’s crew with Smith. Ben is
Mike’s son. Roday, clearly not a union supporter, testified that Smith
and three guys came to work on about April 11 wearing the same union
colors and let everyone know they were passing out union literature. I
would presume that at least two of the three guys were the Keenes;
Salbeck said he never wore union paraphernalia and did not distribute
union literature. Roday said that Smith spoke to him about the Union
several times, but Roday did not mention this to Ben Spargo or Ours
until after Smith was let go. However, irrespective of whether Roday
told anyone, it seems clear that at least as of April 11, three of the four
alleged discriminatees had made their support for the Union such an
open matter at the BWI project that I cannot believe Ours, as project
manager, did not know of their activities by his own observation or
through reports made by his foremen to him.
It is also noteworthy that the Respondent, in its brief, characterizes
the four alleged discriminatees as “salts” for the Union’s organizing
effort at the BWI project, “who pushed the envelope” in a scheme to
file charges against Facchina. However, somewhat incongruously, the
Respondent asserts that the union activities of the four were unknown
to Ours.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD898
literature. Rather, the Respondent asserts the four were termi-
nated (along with several other under-performing employees)
because of the availability of a better performing crew of its
more senior employees. The Respondent called Ours to explain
his decision to terminate the four.
Ours testified that he had no concern for or about the Un-
ion’s organizing efforts at Facchina because the BWI project
was a prevailing wage job, which called for a higher pay scale
than the union carpenters received. Regarding the four alleged
discriminatees, Ours maintained that Smith, Salbeck, and the
Keenes were terminated because of poor performance, poor
attendance, and because the Company was faced with possibly
having to lay off one of its senior crews working at another
project which was ending. According to Ours, he decided to
take advantage of this situation, killing two birds with one stone
as it were, by getting rid of the poorly performing workers and
keeping the good ones.30 Ours noted that the four alleged dis-
criminatees were not the only poor performers let go around the
time of the questioned discharges. He cited as examples five
other, as far as he knew, nonunion affiliated employees who
were let go around the same time for similar reasons—poor
performance, no-show, and lack of work.31
Ours also asserted that he knew of other union affiliated em-
ployees working at BWI who were not laid off.32 Ours, how-
ever, admitted that these employees never, to his knowledge,
engaged in any organizing activities at the site.
Ours stated he felt that the four discriminatees were either
poor performers or had such poor attendance that they were
justifiably laid off. According to Ours, Smith missed work on
March 30 and 31, and April 5 and 7. Salbeck missed March 13,
21, 29, 30, and 31, and April 3 and 7. Alfred Keene missed
March 23, 24, 30, and 31, and April 4, 7, 9, and 13. Lynwood
Keene missed March 23, 24, 30, and 31, and April 7, 9, and
13.33 According to Ours, the Company does not have a written
excused absence policy but, nonetheless, expects its employees
to show up every day in order to keep the project on schedule
and be productive. The four alleged discriminatees, in his
mind, missed too many days for the short period they were
employed at Facchina.
Regarding the job performance of the four, Ours stated that
he constantly received complaints about each man’s work, that
their individual performance did not measure up to the stan-
dards of other carpenters on the project. Also, the four, in addi-

30 This group of workers is referred to as the Clarendon crew, which
reported to the BWI jobsite around April 16, 2001. (See R. Exh. 17.)
Ours noted that not all the workers assigned to that crew reported on
April 16 to BWI because some members were finishing up at the Clar-
endon site.
31 Ours identified the employees as Elton Floyd, discharged on April
12, 2001, for no-show/no-call (R. Exh. 11); Joshua Porter, discharged
on April 13, 2001, for no-show/no-call (R. Exh. 12); Timothy Butler,
discharged on April 12, 2001, for no-show/lack of work (R. Exh. 13);
Alvarado Yahalmo, dismissed April 18, 2001, for poor perform-
ance/lack of work (R. Exh. 16); and Bernado Herrara, discharged on
April 18, 2001, for no-show/no call (R. Exh. 15).
32 Ours identified the other union employees as Charlotte Alford,
Bobby Brown, and Charles Robinson.
33 The Keenes rode together to work, having only a single means of
transportation to the job between them, as their missed days coincided.
tion to missing an inordinate number of days, also arrived late
for and left work early. Ours conceded that the problems of the
four were never documented and that he never informed them
of their attendance and performance issues.
Ours also noted that while he made the decision to discharge
the four, he did not personally deliver the news to them.
Spargo was given this duty and, to his knowledge, Spargo did
not mention that the four union carpenters were being let go
because of poor performance or attendance. Rather, the four
were told that the Clarendon crew was coming on board to
replace them. Ours explained that Facchina, as a matter of
policy, tries to avoid confrontations with employees and, there-
fore, does not tell them they are being let go for attendance or
performance problems. Ours said, consistent with this policy,
the company paperwork—the status/payroll change report—
may not reflect the (true) actual reasons for a job action which
may harm an employee’s future job prospects.34 Thus, the
discharge paperwork for the four, he admitted, does not indicate
that they were poor performers.35 Ours explained that where
the forms indicate lack of work as a reason for discharge of
Salbeck and Smith, this referred to a companywide lack of
work because carpenter work was still available at BWI at the
time of the layoff.
Mike Spargo testified about his role in the decision to termi-
nate the four.
Spargo stated first that with regard to employee related is-
sues, he would discuss these only with Ours. Most of his com-
plaints about workers centered on absenteeism,36 workers’ not
calling in if unavailable for work, working slowly or not dili-
gently working, and poor work quality.
Spargo said that he complained to Ours about the four—
Alfred Keene about inadequate work; Salbeck’s work had to be
redone and he did not follow his instructions on the grommet
work; Smith, like Salbeck, did not seem to want to do the as-
signed work in a quality way. Spargo admitted that he assigned
Smith to Ben Spargo’s crew after about a week on his (Mike’s)
crew, to help Ben with stairway building. Spargo stated that
Lynwood, like Salbeck, was also a slow worker and poor per-
former.
Spargo also related problems he experienced with Salbeck’s,
Smith’s, and the Keenes’ absenteeism, by which he meant not
coming to work when scheduled, without calling in or telling
him in advance. Salbeck and Smith, in particular, according to
Spargo, had attendance problems early on in their employment,
leading Spargo to conclude that they were not possessed of a

34 The status/payroll forms for the Keenes indicate they were dis-
missed for no-show/no-call; Salbeck and Smith were dismissed for lack
of work/no-show.
35 I note that the discharge form for Alvarado Yahalma (R. Exh. 14)
indicates that he was dismissed for poor performance and also lack of
work. See GC Exh. 22, the discharge of Chad Glennon who was dis-
charged for attitude, attendance, and failure to wear proper safety
equipment. These can be fairly said to be rather disparaging remarks
about an employee in my view.
36 Spargo stated he, however, did not now what Facchina’s actual
absentee policy was; he merely reported to Ours if he had a complaint
of this type or others over which he had no real control or authority to
remedy.
FACCHINA CONSTRUCTION CO. 899
good work ethic. Spargo stated that he complained to Ours
about Salbeck’s attendance problems two to three times and
Smith’s only once because he assigned Smith to Ben Spargo’s
crew. Therefore, he no longer had to deal with him.37 Mike
Spargo also complained to Ours about Alfred Keene’s atten-
dance two or three times and recalled that Alfred was hired one
day and, the very next day, came in at 10 a.m. Lynwood’s
attendance issues were similar. In the first week of his em-
ployment, Spargo stated of particular concern to him was the
Keenes’ arriving late and leaving early. According to Spargo,
those problems escalated after the first week. Spargo said he
made his complaints to Ours and resignedly told him that he
(Ours) should do what he wanted to, there was nothing that he
(Spargo) could do.
Spargo acknowledged that he gave the four their final checks
and told each that another crew—Mackie Jenkins’ Clarendon
crew—had been transferred to BWI and they were being re-
placed. According to Spargo, he merely repeated what Ours
had told him. He did not know personally whether the four
were being let go for poor performance, but he thought that
their performance and attendance as well were a part of the
decision based on his having made complaints of this nature
against them. Spargo admitted that Ours did not tell him to
discharge the four for performance and attendance issues.
The General Counsel called the four discriminatees to rebut
the Respondent’s defense.
Salbeck stated that by his second day at the Company, Mike
Spargo told him he was doing a good job reshoring the concrete
decks and, in fact, never asked him to redo anything he had
worked on. Salbeck admitted that he asked Spargo for time off,
particularly on April 29 and 30 when his girlfriend was expect-
ing the birth of their child. According to Salbeck, Spargo ap-
proved his request and told him to take as much time as he
needed.38 Salbeck stated that contrary to the Respondent’s
records, his personal diary (GC Exh. 58) indicated that he
worked on March 13 and April 3.39
Salbeck said that he was asked to work on Saturdays by
Spargo and did work on a couple of Saturdays. However, Sal-
beck said that Saturday was not a required workday. Salbeck
also said that he was not told that he had to call in on a rainy
day and, in fact, did not report to the project on rainy days.40

37 Spargo said that the stairways were behind schedule and Ben
needed help. I note that if Spargo is to be believed, he sent Smith, a
poor performer, to help with a troubled part of the project. Similarly,
although Spargo considered Salbeck a poor worker, he offered him
Saturday overtime work. Spargo testified that a poor worker is better
than none at all.
38 Spargo denied commenting favorably on Salbeck’s work. Spargo
did recall conversing with Salbeck about a miscarriage and trouble with
his first wife, but that Salbeck did not ask for time off.
39 Salbeck admitted that in his affidavit to the Board pursuant to the
investigation, he said he did not work on March 13 and April 3. How-
ever, his pay records (not provided at the hearing) indicate he was paid
on these days.
40 Salbeck said he was never given an inclement weather telephone
number to call. Salbeck stated that he did not come to work on March
21. Notably March 21, 2001, was a rainy day according to climatic
reports in evidence. See GC Exh. 13.
Salbeck said he was never told by Facchina’s management he
had to show up on rainy days.
Smith insisted that he had made it clear to management from
the inception that he could not work Saturdays because he was
taking project superintendent classes given by the Union on that
day.41 In any case, Smith stated that he understood that Satur-
day was a nonmandatory workday, strictly voluntary for work-
ers wanting overtime work. Salbeck stated that he did not work
on Saturday, March 31.
Smith stated that he inquired of the company secretary about
the Company’s rainy day policy and he was told that if it were
raining hard, not to come in. However, if a worker decided to
come in on the chance the rain would stop, he could come in
and make 2 hours’ showup pay.42 Smith stated he did not work
on March 30 because it was raining, although he did show up
for work. Smith said he decided not to work but took the 2
hours’ showup time.43 Smith acknowledged that some of Mike
Spargo’s employees worked when it was raining but these
workers were often merely tearing down forms, not building
forms as would a carpenter at BWI.
Smith said that he also did not report for work on April 5 be-
cause the supervisor’s examination was given that day. Ac-
cording to Smith, he spoke to Ours the day before and advised
him that he would need the entire day to study and then take the
test.
Smith stated that generally if he was not coming in, he would
call in; however, while working at Facchina, he did not call in;
rather he would speak to Ours directly the day before and then
let Ben Spargo know of his plans and conversation with Ours.
Smith said that at the time he was informed of his layoff by
Spargo, his performance and attendance were not given as rea-
sons; rather, the seniority of other workers was the stated rea-
son.44 Smith said he had never been told that he was a prob-
lematic worker at the Company and even asked Spargo at the
time of his discharge whether he had done something the Com-
pany disapproved of. According to Smith, Spargo simply said
no and seemingly tried to avoid further discussion.

41 Smith believed he never worked on Saturdays. His schedule of
classes that he identified at the hearing (GC Exh. 45) lists only two
Saturday classes—March 17 and April 14. The Respondent’s payroll
records indicate that Smith did not work on Saturday, March 17.
42 Smith said that Mike and Ben Spargo told him to come in on rainy
days and wait around a couple of hours, and we would get 2 hours’
show-up time.
43 The climate reports in GC Exh. 13 indicate that it was rainy,
misty, and foggy on March 30. However, the Respondent’s timesheets
for March 30 indicate that Smith was out that entire day; no hours are
recorded for him.
44 Smith was shown a copy of a State of Maryland Department of
Labor form captioned “Notice of Benefit Determination” issued to
Facchina indicating that the Company claimed that Smith was dis-
charged for simple misconduct. Notably, the Office of Unemployment
Insurance determined that Smith was discharged after being replaced
by a more senior employee and that insufficient information had been
presented by the Company to establish misconduct on his part. Smith
said he had never seen this document but had been informed by the
unemployment office that this was an issue with regard to his unem-
ployment claim. Smith said that his performance or attendance was
never raised by the unemployment office.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD900
Smith stated that he had no discussions with Salbeck and the
Keenes about organizing the project because they worked only
a short time together on the same crew. Smith denied telling
other coworkers that he was going to leave the Company after
collecting information about it. He also denied telling anyone
that Ben Spargo was going to make him some money.
Smith also denied that he tried to get himself terminated so
that the Union could picket the site. According to Smith, his
objective was to work and make a living; he received no bene-
fits from the Union while working at Facchina.
Smith emphatically denied ever leaving the job early, saying
he could not simply walk off the job without letting manage-
ment know. Smith said that he did leave early on April 9 when
he received a call that his house was on fire. Smith said he told
Mike Spargo and Ours that he was leaving and the reason.
Ours approved his leaving that day.
Alfred Keene testified that Mike Spargo told him that Satur-
day overtime was reserved only for his best workers, that a
worker had to “prove” himself in order to get overtime, you had
to be a hard worker. According to Alfred, he told Mike Spargo
that on weekends he had to care for his two young children and
childcare was difficult to secure on the weekends. Alfred said
that he informed Mike of his situation when Mike asked if he
were interested in working on Saturdays. Alfred said he
worked only one Saturday—March 17—during his employ-
ment with Facchina.
Alfred recalled a conversation with Spargo on March 17 in
which Spargo told him and his brother that he was letting four
other carpenters go because of poor work, but that they (the
Keenes) were doing such a good job. Spargo commended them
and said he was looking to put together a good crew. Accord-
ing to Alfred, Spargo laid off the four allegedly deficient car-
penters.
Alfred stated that the BWI project required carpenters to use
electric saws and drills with motors exposed to the elements.
Therefore, he would not work on rainy days in the absence of
safety equipment. Alfred said he told Spargo early on that he
would only work on “dry work,” and that if Spargo did not
have that kind of work on rainy days, he (and his brother)
would not work that day. According to Alfred, Spargo seemed
to understand.45 Alfred conceded that some carpenters worked
on rainy days.
Alfred admitted that he did not work on March 23, because
he accompanied his brother to traffic court. However, Alfred
said he advised Mike Spargo of his intended absence before-
hand and Spargo said he would schedule around them. Alfred
said that any days he missed other than rainy days were cleared
in similar fashion with Spargo. Even with respect to rainy
days, Alfred claimed that he reported to work but, if the rain
continued for around 30 minutes after his arrival, he would

45 Alfred said that he did not work on March 24, 30, 31, and April 4
and 9 because of rain. These were rainy days according to the clima-
tological data in GC Exh. 13. Alfred said he worked on April 11, a
rainy day, but only for a half-day. The climatological reports indicate
that this was a rainy day. The Respondent’s records indicated Alfred
worked 3 hours.
leave. According to Alfred, Facchina did not pay workers who
showed up for work on rainy days, but who did not work.
Alfred said that he and his brother also left work early once
when they were assigned work next to a portable john (“porta
potty”) and a swarm of bugs (gnats) made work impossible for
him and his brother. Alfred and his brother complained to
Mike Spargo and told him why they were leaving. Alfred
noted that Spargo would not move the porta-potty. They also
spoke to Ours on the way out and told him about the problem
but that they would return to work the next day. Alfred said
they suggested that the potty be emptied or moved. Ours indi-
cated that he would. According to Alfred, this incident oc-
curred on April 11, and he and his brother left work.
Alfred said that he was never told his work performance or
his attendance was a problem by anyone in management.46
Alfred recalled leaving work early during the first week of
April on the occasion of his hammer being stolen while at work
and preventing him from working.
Alfred said he and Lynwood did not work on Friday, April
13, because of Lynwood’s divorce proceeding in local court.
However, Alfred said that this information had been given to
Mike Spargo about a week in advance. According to Alfred,
Spargo did not object to his absence and said he appreciated the
“heads up” and voiced no opposition to his request.
Alfred said that on April 16, he and Lynwood reported to
BWI at around 7 a.m., but not to work. Alfred explained that
he and Lynwood were under the impression they had been laid
off as of April 13, because they had received word that Salbeck
and Smith had been terminated.47 Therefore, according to Al-
fred, he and Lynwood only came to the jobsite to pick up their
final checks; they did not bring their tools. However, Alfred
determined from the secretary that they had not been termi-
nated. She instructed them to speak to Ours. According to
Alfred, Lynwood spoke to Ours who confirmed that they were
not terminated. Alfred said he told Ours they wanted to work
that day but they had no tools; to go home and retrieve them
would take a half-day; and it was also raining. Alfred stated
they decided to go home and report for work the next day.
According to Alfred, Ours gave his approval.
Alfred said he and Lynwood reported for work the next day,
April 17, and, after passing out union literature, proceeded to
work their assigned tasks.
Alfred said he and Lynwood reported for work on April 18,
and were assigned work under the deck of the garage, mainly
moving debris and stripping forms, laborers’ work, not carpen-
ters’.48 After a time, according to Alfred, Mike Spargo came to

46 Keene admitted that he signed the Company’s rule of conduct
form at the time of his hire, but said he was unaware of the call-in
policy stated on the form. However, he said that as a matter of cour-
tesy, he knew to call in if you were not coming in.
47 Alfred stated that George Eisner of the Union left a message on
April 13 informing them that Salbeck and Smith had been laid off and
that they reported seeing extra checks, which they assumed were for the
Keenes. Alfred said by the time they received the message around 4 to
4:30 p.m., the jobsite would be closed so they decided to pick up their
checks on the following Monday, April 16.
48 Alfred said the area where they were assigned the laborers’ work
was way out of sight—no one could see them. However, according to
FACCHINA CONSTRUCTION CO. 901
the area and reassigned them to the top surface of the garage to
build panels along with a father-son team. According to Al-
fred, he and Lynwood then began a conversation with the father
and son team about the Company’s preferences for building
forms and how fast they wanted the work done. According to
Alfred, Mike Spargo immediately came over and reassigned the
father-son team to another area of the job.
Alfred stated that shortly after lunch, Spargo approached him
and Lynwood and gave them their paychecks. According to
Alfred, Spargo told them that he would have to let them go
because another job was ending and more senior workers would
be replacing them. Spargo, according to Alfred, said that he
(and Lynwood) did fine work, good work; there was nothing
wrong with their work. Spargo went so far as to say that they
were probably some of the best guys he had. Spargo said that
he had a bridge job coming up very soon and if they were look-
ing for work, to give him a call; that he would be glad to hire
them.49 Spargo then said that he and Lynwood had to leave the
site.
Lynwood Keene testified that on the first day on the job,
once assigned to Mike Spargo’s crew, Spargo informed him
that the job was behind schedule because of language barriers
on the existing crews. Spargo said he wanted to put together a
good crew and that overtime opportunities would only be given
to the best and most productive workers. According to Lyn-
wood, Spargo told the assembled crew that job assignments,
tools, attendance, and emergency matters should be directed to
him.
Lynwood said that Saturdays were nonmandatory workdays,
and he was never scheduled to work on Saturdays, although he
and Alfred did work the first Saturday (March 17).50
Lynwood stated that if he needed time off, he would call in
as a courtesy to Spargo; but he usually informed Spargo in
advance of his need to be off. Lynwood also stated that he
always reported to work on rainy days but admitted that both he
and his brother Alfred refused to work with electrical tools in
the rain out of concern for their personal safety. Lynwood said

Alfred, a man whom he did not know but who was wearing a white
hardhat told them that if they wanted things to get better, to take off the
union apparel they were wearing; to stop pushing the union literature
and things would be fine.
49 Alfred stated that he did not follow through on Spargo’s offer of
employment and has not sought employment with Facchina since his
discharge. Alfred said that Spargo gave him a telephone number to
reach him if the Keenes wanted work. Alfred denied that the Union
told him to try to get fired so that the Union could picket the Respon-
dent. According to Alfred, the only instructions he received were what
he heard union representative George Eisner telling his brother; that is,
to have good attendance, work hard, do as he was told, and demonstrate
that they were good carpenters.
50 Lynwood said that his brother generally could not work Saturdays
because of childcare problems. The Respondent’s payroll records do
indicate that Alfred worked that first Saturday. Alfred did not work
any additional Saturdays after March 17. According to Lynwood,
Spargo did not offer Saturday work to all crewmembers, only to certain
(select) persons.
he informed Spargo or Ours on these occasions why he would
or could not work.51
Lynwood confirmed that he did not work on March 23 be-
cause he was required to attend traffic court but that he cleared
this with Spargo about 2 days earlier, as was his practice.
Lynwood acknowledged that he did not work on March 23,
24, 30, and 31, and April 7, 13, 14, and 16. Although he ac-
knowledged that the Respondent’s records indicate that he did
not work on April 9, Lynwood thought that he did work that
day. In any case, Lynwood noted that since he rode to work
with his brother, in all likelihood, any days his brother was
absent, he was also absent. Lynwood also conceded that he left
work early on April 12, because of the bugs swarming around
the porta-potty, and also on March 21, because he was required
to attend a hearing preliminary to his divorce proceeding on
March 25.
Regarding his not reporting for work on April 13, Lynwood
stated that he was scheduled for his divorce proceeding and his
brother was to serve as a witness. Lynwood said that he told
Spargo the week before of this matter and that both he and his
brother would be out. According to Lynwood, Spargo said
there would be no problem but to remind him of the matter
about a day before the scheduled court date.52
Lynwood said that on April 16, he and his brother reported
to work although it was raining. According to Lynwood, he
spoke to the receptionist about the layoff of Smith and Salbeck
the previous week and, thinking that he and Alfred had been
discharged also, told her they were there to pick up their
checks. According to Lynwood, the receptionist said she knew
nothing of their being laid off and she had no final checks for
them. Lynwood then spoke with Ours who confirmed that they
had not been laid off. Lynwood said he told Ours that he and
his brother were not quitting. Ours told them if they did not
want to work in the rain, to come back the next day.
Lynwood said that he and Alfred reported for work the next
day at around 6:30 a.m. and worked the entire day and (as
noted earlier) distributed handbills before clocking in.
Lynwood said that on April 18, both he and his brother were
discharged. He explained the circumstances leading to their
termination.
On April 18, both he and his brother arrived at the site wear-
ing their union decals, baseball cap, and union shirt. Spargo
then assigned them work beneath the garage decking, picking
up wood (called whalers).53 According to Lynwood, this was

51 Lynwood stated that the Respondent asked workers to report to
work even if it were raining but the Company had no rainy day policy
that provided for showup pay if the weather prohibited work. Lynwood
said that management allowed the workers’ discretion to work in the
rain. Laborers who did not use electrical tools could and did work in
the rain.
52 Lynwood identified GC Exh. 46, a copy of a letter from his attor-
ney dated March 12, 2001, advising of the April 13 court date.
53 Lynwood also stated that while he and his brother were working
under the deck, a crane operator swung his bucket under the deck, a
dangerous move in his view. He brought the matter to the attention of
Spargo and Ours who investigated the incident. I inferred from his tone
and demeanor on the stand that Lynwood viewed the incident as a
threat.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD902
not carpenters’ work but they finished the assignment around
11 a.m. to noon. Spargo then assigned them to the top deck of
the garage to do form work; this was an isolating work assign-
ment according to Lynwood. After a time on the top deck,
Spargo appeared and told him and Alfred they were being laid
off and gave them their final checks. According to Lynwood,
“Spargo said the layoff had nothing to do with our work, the
Company was pleased with our work.”54 Spargo gave him a
telephone number to call him if the hiring hall had no work.55
Lynwood said that he tried to call Spargo that day or the next
but was unable to contact him and never attempted to call him
thereafter.
Regarding the four discriminatees’ performance on the job,
the General Counsel called George Eisner56 and Coronado.
Eisner testified that as the Union’s organizing director, he
visits construction sites that may be hiring to encourage con-
tractors to consider union carpenters for employment and pos-
sibly to work, negotiate signatory agreements, or use carpenters
participating in the Union’s apprenticeship program.
Eisner said that in April 2001,57 he and Coranado paid a visit
to the Facchina BWI project and arranged to speak with Ours
about hiring his state-certified apprentices as a cost saving
measure. After introducing himself to Ours, Eisner stated that
he mentioned to him that he knew Facchina had hired several
union carpenters, namely Smith, Salbeck, and the Keenes, and
inquired if Ours were happy with them. According to Eisner,
Ours said that he was. Eisner said that Ours also seemed recep-
tive to Eisner’s proposal to use the apprentices, but said he had
to check with the main office before committing the Company.
Ours, according to Eisner, asked him to call back in a couple of
days, on April 13. Ours then gave him a business card on
which Ours wrote the telephone number of the office trailer.58
Eisner said he called Ours on April 13 and spoke to the secre-
tary. Unable to reach Ours, Eisner left his name and number
for Ours to return the call. Eisner said he called again on April

54 Lynwood said that he had never received complaints about his
work, that he, in fact, had been designated “worker of the week” on his
second or third week on the job and his picture was posted in the office
in acknowledgment of his work.
55 Lynwood identified the envelope in which he received his last
paycheck containing Mike Spargo’s cell phone number. Lynwood said
Spargo wrote the number down but not the word “Mike.” See GC Exh.
47.
56 Eisner is the director of organizing for Carpenters Mid Atlantic
Regional Council and served in that capacity during the period in ques-
tion.
57 Eisner said at the time he was wearing a Carpenters’ Regional
Council jacket with the carpenters’ emblem affixed. Eisner noted that
on the day he visited the BWI jobsite, employees were punching out
early around 10 a.m. The Keenes credibly testified that April 11 was a
rainy day and they and other workers left early. This fact is also estab-
lished by the Respondent’s records for April 11 (GC Exh. 28), which
indicates most workers left early—around 9:30 a.m.—because of rain.
The Keenes also met with Eisner in the parking lot later that morning.
Therefore, while Eisner did not state the date of his meeting, it was
clear that it was April 11, 2001.
58 Eisner identified GC Exh. 59 as a copy of the business card given
to him by Ours at this meeting.
16, again leaving a message for Ours. Ours did not ever return
his calls.
William Coranado testified that he and Eisner visited the
BWI site on April 11 and spoke with Ours. According to
Coranado, Ours said that he knew the men Eisner had men-
tioned by name59 as being some of his Eisner’s union carpen-
ters and they were doing a good job, were working very good,
and he liked the way they worked. Eisner, according to
Coranado, told Ours that the Union had more carpenters who
would work equally well and that Facchina could save money
by using some of the carpenter apprentices. According to
Coranado, Ours responded favorably to Eisner’s suggestion but
said that he would have to check with the owner, Mr. Facchina,
because the Company was looking for more workers in Balti-
more. Ours gave Eisner a business card, and they left.
Coranado and Eisner happened upon the Keene brothers,
Smith and Salbeck at the site and met with the four in the park-
ing lot. [As noted earlier herein, the Keenes attempted their
first distribution of union literature on April 12.]
H. Discussion and Conclusions of the 8(a)(3) Allegations
Undoubtedly, an employer is entitled to discharge at will
employees who, in its view, are inadequate performers either
because of deficient skills and/or poor attendance. Employees
also, under ordinary circumstances, can opt to keep certain
employees it values or who have more seniority with the enter-
prise than other more recently hired workers. Trading on these
estimable verities of the workplace, the Respondent argues that
these admittedly “complex and multiple” but not shifting rea-
sons were the basis of Ours’ decision to terminate the four al-
leged discriminatees irrespective of their having engaged in
activities supportive of the Union.
The General Counsel contends that the Respondent’s defense
is pretextual and not supported by the evidence. First, he as-
serts that the pretextual nature of the Respondent’s defense is
demonstrated by what he describes as the “shifting” reasons
given for the terminations, citing the difference between the
Respondent’s position statement in which the Respondent
claimed that Salbeck and Smith were let go solely because of
poor attendance and the Keenes for poor attendance and the
pending transfer of employees from another of the Respon-
dent’s jobs and the testimony of Ours which centered on the
four’s alleged poor attendance and performance. Second, the
General Counsel submits that the credible record evidence does
not support the Respondent’s contention that the four were
poorly performing workers at their trade. Furthermore, the
days that the Respondent held them accountable for nonatten-
dance were either excused absences, nonmandatory Saturdays,

59 Coranado recanted part of the sworn affidavit he provided to the
Board agents in the investigation phase of this case, saying that he was
mistaken when he averred in the affidavit that Eisner did not name the
union members by name at BWI. To rehabilitate him, the General
Counsel showed him a copy of a contractor contact report dated April
11, 2001, which Coranado said he contemporaneously prepared to
memorialize the visit with Ours. The report indicates that Coranado
wrote that Eisner told Ours the names of the union members working at
BWI and that Ours said he was “happy” with them. (See GC Exh. 53.)
FACCHINA CONSTRUCTION CO. 903
or rainy days. He contends that the Respondent’s reliance on
these absences demonstrates the pretext.
In general agreement with the General Counsel, I would find
and conclude that the Respondent has not met its burden to
establish that the terminations of Salbeck, Smith, and the
Keenes were based on their individual poor performance and
attendance and/or the Respondent’s desire to preserve work for
a more senior group of its employees. My reasons are as fol-
lows.
As I have stated, I found the four alleged discriminatees to
be highly credible witnesses. To a man, they were confident
and forthcoming in their testimony. They seemed to be consci-
entious workers and, being journeyman carpenters, I found it
hard to believe they were not competent, not being able to cut a
straight line as was claimed. Why would the Respondent hire
such poor, incompetent workers and keep them on the job for
as long as it did? Then, too, the four credibly testified that they
were never given warnings or criticism (written or verbal)
about their work or work habits. On the contrary, they were
commended and invited to work overtime on Saturdays. I
found Spargo’s statement that he even asked poor workers to
work overtime—someone being better than no one as it were—
simply incredible and making little business sense.
Crediting Eisner and Coranado, I also note that Ours, him-
self, told them that he was happy with the four as little as a day
before he decided to let go Salbeck and Smith. Moreover,
Ours, in a telephone interview with Maryland State Unem-
ployment Official Soretha Staten on May 31, 2001, stated,
“There was nothing wrong with Mr. Smith [sic] work and no
other real problems to speak of.”60 All in all, I would find and
conclude that the Respondent’s defense that the four were poor
performers is without merit, and pretextual.
I am in full agreement with the General Counsel regarding
the four’s alleged absenteeism in that the dates cited by the
Respondent to establish a poor attendance record were either
Saturdays, excused absences, or emergency or rain days for the
four. Notably, Saturdays were purely voluntary workdays.
Smith and the Keenes credibly testified that they could not
work that day because of personal reasons, which they commu-
nicated to the Respondent. In likewise, it seems clear that the
Respondent allowed its workers discretion to work on rain
days; its records indicate that workers other than the four exer-
cised that option not to work in the rain. The Keenes, in par-
ticular, were concerned about the safe operation of electric
tools in the rain. It seems highly reasonable that they would not
want to perform carpenters’ work under wet conditions, and
they communicated this to the Respondent who, as I believe,
approved any early departures for this reason, as well as not
working at all in rainy conditions.
It seems clear to me, based on the credible testimony, that
each of the four alleged discriminatees did not simply leave the
job without notice to at least Spargo. The Keenes said they left

60 Staten testified at the hearing, having been called by the General
Counsel, and identified a fact-finding report on Smith’s unemployment
benefits claim. The quote above is taken from a telephone interview of
Ours. See GC Exh. 72. I also note that Mike Spargo, when he told the
four of their layoff, never mentioned poor work or attendance.
work on two occasions for cause—one time because of a stolen
hammer, without which one of them could not work, and the
other because of a bug infestation issue. In both cases, based
on their credible testimony, the Respondent could or would not
act to keep them on the job by either supplying a hammer on a
temporary basis or perhaps moving the porta-potty or spraying
insecticide.
Smith credibly said he left the job early once because of a
fire at his home but told management of his need to leave.
Therefore, to the extent leaving early reflects absenteeism or
poor performance, it seems here that the four received permis-
sion to leave and their absences were excused. Accordingly, I
would find and conclude that the Respondent’s claim of exces-
sive absenteeism as grounds for discharging the four was not
supported by the credible evidence and was pretextual.
As to the Respondent’s claim that it laid off the four to make
room for the Clarendon crew that was more senior in the Re-
spondent’s operation, this, too, in my view, was merely a part
of the pretextual discharge. As I have previously found, Spargo
said that the union people would be laid off to make room for
the new crew, which is discriminatory on its face and seriously
undercuts the Respondent’s argument that it was fairly replac-
ing poor performers in favor of its more senior workers.61
The foregoing reasons in and of themselves, in my view,
clearly support a finding of pretextual discharge. However, the
last nail, as it were, is evidenced by the Respondent’s having
discharged the four within a short period of its discovery that
there was an active organizing effort on the part of the Union at
BWI. In this regard, it is notable that on April 11, Eisner told
Ours that the four are his union members as he was pitching the
Union to him. On April 12, the Keenes’ attempt to distribute
handbills. On April 12 (or 13), Salbeck and Smith are laid off.
On April 17, the Keenes, with some opposition from Spargo,
successfully distribute union handbills. On April 18, the
Keenes are laid off. Given these circumstances, I find the Re-
spondent’s claim that it laid off the four union carpenters be-
cause they were poor workers, and to make room for another
more senior crew, simply not persuasive. I would find and
conclude, in agreement with the General Counsel, that the Re-
spondent has not met its burden to prove that the layoff of the
four was legitimate, and not based on improper motive. Ac-
cordingly, I would find and conclude that the four were wrong-
fully discharged—laid off—and will recommend an appropriate
remedy.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating job applicants regarding their union
membership, the Respondent violated Section 8(a)(1) of the
Act.

61 I note that Smith and Salbeck were told union carpenters were be-
ing let go, and this explains why the Keenes thought they also had been
laid off on April 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD904
4. By coercively telling employees that all union carpenters
had to be laid off, the Respondent violated Section 8(a)(1) of
the Act.
5. By coercively telling employees that they could not pass
out union literature outside the front gate of the Respondent’s
BWI jobsite, the Respondent violated Section 8(a)(1) of the
Act.
6. By laying off (discharging) William Salbeck, Lester
Smith, Alfred Keene, and Lynwood Keene, the Respondent
violated Section 8(a)(1) and (3) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent has not violated the Act in any other
manner or respect.
THE REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices warranting a remedial order, I shall recommend
that it cease and desist from engaging in such conduct and that
it take certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent, having discriminatorily laid off (dis-
charged) William Salbeck, Lester Smith, Alfred Keene, and
Lynwood Keene, I shall recommend that it be ordered to offer
them reinstatement and make them whole for any loss of earn-
ings and other benefits they may have suffered by virtue of the
discrimination practiced against them, computed on a quarterly
basis as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), less any interim earnings, plus interest as computed in
accordance with New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended62
ORDER
The Respondent, Facchina Construction Company, Inc., La
Plata, Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating job applicants regarding their union mem-
bership.
(b) Coercively telling employees that all union carpenters
had to be laid off.
(c) Coercively telling employees they could not pass out un-
ion literature outside the front gate of the Respondent’s BWI
jobsite.
(d) Discharging or otherwise discriminating against any em-
ployee for supporting Carpenters Regional Council Baltimore
and Vicinity a/w United Brotherhood of Carpenters and Joiners
of America, or any other labor organization.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.

62 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.
2. Take the following action necessary to effectuate the poli-
cies of the Act.
(a) Within 14 days from the date of this Order, offer William
Salbeck, Lester Smith, Alfred Keene, and Lynwood Keene full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
(b) Make William Salbeck, Lester Smith, Alfred Keene, and
Lynwood Keene whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against them in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
their files any reference to William Salbeck, Lester Smith, Al-
fred Keene, and Lynwood Keene’s unlawful discharges and,
within 3 days thereafter, notify them in writing that this has
been done and that their 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 re-
cords, 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 of-
fice in La Plata, Maryland, copies of the attached notice marked
“Appendix.”63 Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, 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 all current employees and
former employees employed by the Respondent at any time
since August 31, 2001.
(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.

63 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.”
FACCHINA CONSTRUCTION CO. 905
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 no-
tice.
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 interrogate job applicants regarding their union
membership.
WE WILL NOT coercively tell employees that all union carpen-
ters have to be laid off.
WE WILL NOT coercively tell employees that they cannot pass
out union literature outside the front gate of our BWI jobsite.
WE WILL NOT discharge or lay off employees because they
have joined, supported, or assisted the Carpenters Regional
Council Baltimore and Vicinity a/w United Brotherhood of
Carpenters and Joiners of America, or any labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of rights guaranteed
them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
William Salbeck, Lester Smith, Alfred Keene, and Lynwood
Keene full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make William Salbeck, Lester Smith, Alfred Keene,
and Lynwood Keene whole for any loss of earnings and other
benefits resulting from their discharges because of membership
in and/or support of Carpenters Regional Council Baltimore
and Vicinity a/w United Brotherhood of Carpenters and Joiners
of America, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to William Salbeck, Lester Smith,
Alfred Keene, and Lynwood Keene’s unlawful discharges and,
within 3 days thereafter, and WE WILL notify them in writing
that this has been done and that their discharges will not be
used against them in any way.
FACCHINA CONSTRUCTION COMPANY, INC.