Instant Plumbing Co.

National Labor Relations Board - Board Decisions

Nov 13, 1985

277 N.L.R.B. 437 (N.L.R.B. 1985)

JONES PLUMBING CO
Jones Plumbing Co., Inc .; Groton Piping, Inc.; and
Groton Piping Inc„ d/b/a Instant Plumbing
Company and United Association of Journey-
men and Apprentices of the Plumbing and Pipe-
fitting Industry of the U .S. and Canada, Local
#305, AFL-CIO. Cases 39-CA-1417, 39-CA-
1486, 39-CA-1545, and 39-CA-1746
13 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 5 March 1985 Administrative Law Judge
Robert T. Snyder issued the attached decision. The
Respondent and the General Counsel filed excep-
tions, supporting briefs, and answering briefs.
The National Labor Relations Board has delegat-
ed 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, and
conclusions i and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Jones
Plumbing Co., Inc.; Groton Piping, Inc.; and
Groton Piping Inc. d/b/a Instant Plumbing Com-
pany, Gales Ferry, Connecticut, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
' We adopt the judge's finding that the Respondent discriminatorily
discharged employee Gerard Thuotte in violation of Sec. 8(a)(3) and (1)
of the Act. Accordingly, we need not pass on the judge's alternative
finding that Thuotte was constructively discharged in violation of the
Act
Mary L. Davidson and Stephen Fanning, Esqs., for the
General Counsel.
Wilhan C. Bruce, Esq. (Lynch, Traub, Keefe & Snow,
Esgs.), of New Haven, Connecticut, for the Respond-
ent.
Joseph Guglielmo, Esq., of Uncasville, Connecticut, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This
proceeding was tried at Norwich, Connecticut, on Feb-
ruary 21 and 22, 1984. The amended consolidated coin-
437
plaint,' which issued on February 10, 1984, alleges that
Groton Piping, Inc. (Groton) and Jones Plumbing Co.,
Inc. (Jones) as a single integrated business enterprise and
single employer within the meaning of the Act2 (Re-
spondent), commencing in October 1982 and continuing
to December 1982, on various specified dates, committed
various violations of Section 8(a)(1) of the Act by inter-
rogating employees as to their union sympathies, threat-
ening them with reprisals because of their union activi-
ties, informing them of the futility of unionization, and
creating the impression among its employees that their
union activities were under surveillance. The complaint
also alleges that between November 18, 1982, and July
21, 1983, Respondent laid off, transferred, imposed more
onerous working conditions upon, revoked benefits of,
and discharged various named employees because they
joined, supported, or assisted the United Association of
Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the U.S. and Canada, Local #305,
AFL-CIO (the Union or Local 305) in violation of Sec-
tion 8(a)(3) and (1) of the Act. By answer dated and
served on the parties on February 21, 1984, Respondent
denied the material and conclusionary allegations of the
complaint.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnessess, to argue orally, and to file briefs. The
General Counsel and Respondent submitted posttrial
briefs which have been carefully considered. On the
entire record in the case, including my observation of the
witnessess and their demeanor, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION AND LABOR ORGANIZATION STATUS
Jones, a Connecticut corporation with its principal
office and place of business in Gales ]Ferry, Connecticut
(the Gales Ferry facility), is engaged in the construction
industry as a mechanical subcontractor providing plumb-
ing and heating services. Groton, a Connecticut corpora-
tion with its principal office and place of business at the
Gales Ferry facility, is engaged in the construction in-
dustry as a mechanical subcontractor providing plumbing
and heating services. As noted in footnote 1, Instant
Plumbing Company is a trade name used by Groton
when engaged in the business of providing plumbing
repair services to residential customers, at least until Feb-
ruary 1983. At all times material herein, Jones and
Groton have been affiliated business enterprises with
common officers, ownership, directors, management, and
i The caption amends the identity of Respondents as alleged by the
General Counsel in the amended consolidated complaint to conform to
the proofs. The General Counsel alleged Ben Jones d/b/a Instant Plumb-
ing as a party Respondent along with Jones Plumbing Co, Inc and
Groton Piping, Inc. The evidence failed to establish that Ben Jones,
president and chief executive officer of Jones and Groton, operated In-
stant Plumbing as an individual proprietor Rather, Instant Plumbing
Company constituted, until February 1983, a trade name used by Groton
Piping, Inc. in the performance of residential service plumbing work
2 The pleading also alleges Ben Jones d/b/a Instant Plumbing as part
of the single integrated business enterprise. That allegation was not
proven and the identity of the business enterprises comprising Respond-
ent has been clarified in the amended caption. See In, 1 supra.
277 NLRB No. 47
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervision; have formulated and administered a
common labor policy affecting employees of these oper-
ations ; have shared common premises and facilities; have
provided services for and made sales to each other; have
interchanged personnel and equipment with each other;
and have held themselves out to the public as a single
integrated business enterprise.3 By virtue of these facts,
admitted by Respondent, I conclude that at all times ma-
terial herein, Respondent Jones and Groton constitute a
single integrated business enterprise and a single employ-
er within the meaning of the Act.
During the 12-month period ending December 31,
1983, Respondent, in the course and conduct of its busi-
ness operations described, purchased and received at its
Gales Ferry facility products, goods, and materials
valued in excess of $50,000 directly from points located
outside the State of Connecticut. The Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
The complaint also alleges , and I find, that Local 305
is a labor organization within the meaning of Section
2(5) of the Act. Although Respondent denied this allega-
tion of the complaint because of insufficient information
with which to form a belief as to its truth, on March 2,
1983, in Case 39-RC-370, the Board certified the Union
as the exclusive bargaining representative of the employ-
ees of Jones in an appropriate unit consisting of all of its
employees, including licensed plumbers, steamfitters,
pipefitters, pipefitter welders, and plumbing and pipefit-
ter apprentices, excluding certain other categories of em-
ployees. It was this unit which was later clarified in
Cases 39-UC-29 and 39-UC-30. As found by the Re-
gional Director in that proceeding, for approximately 15
years prior to August 1, 1981, Local 305 had represented
a similar unit of employees at Groton as part of a multi-
employer unit. The Regional Director found that a single
unit of the these employees of Jones and Groton4 consti-
tutes an appropriate unit for purposes of collective bar-
gaining.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As noted, since approximately 1966, the Union had
represented Groton employees as part of a multiemploy-
er bargaining unit. The most recent collective-bargaining
agreement for this unit expired on August 1, 1981.
Groton withdrew from the muttiemployer group prior to
the contract's expiration. Groton subsequently entered
into negotiations with the Union which were the subject
of a charge filed by the Union, resolved by way of entry
of an informal settlement agreement including an agree-
3 As this record establishes, and as found by the Regional Director for
Region 1 in a Decision and Clarification of Bargaining Unit in Cases 39-
UC-29 and 39-UC-30 dated November 14, 1983, the ownership and sub-
stantial control over the business, and particularly the labor relations of
both companies , has at all times been vested in Ben Jones.
4 In the absence of any appearance by the Employer, although no
notice of hearing was served on Instant Plumbing, Instant Plumbing was
also found to be a part of the single integrated enterprise whose employ-
ees made up the clarified unit
ment by Groton to bargain upon request with the Union.
The Union struck Groton but no agreement was
reached. However, as a consequence of the strike Ben
Jones testified that the Connecticut Labor Department
terminated the Groton apprenticeship program. At this
point, in late 1981, Ben Jones activated Jones Plumbing
which was originally incorporated in 1952, transferred
Groton employees to Jones, and was enabled thereby to
employ apprentices under an approved agreement en-
tered with the State Apprenticeship Council.
B. The Union's Organizational Campaign
Sometime in the late summer or early fall of 1982,
Jones employee John McVeigh contacted Local 305, re-
ceived union authorization cards, solicited employees to
sign , and returned executed cards to the Union. Another
Jones employee, John Alberson, assisted McVeigh in so-
liciting employees for the Union. McVeigh was also the
Union's contact in setting up meetings with the employ-
ees. After getting word of a scheduled meeting, he
would call employees at home to inform them. A series
of meetings were held in the fall of 1982 at Charlie's
Restaurant in Uncasville, Connecticut, attended by all
Respondent's employees except Christian Grillo, shop su-
perintendent since January 1983, and prior to that in
charge of the Instant Plumbing operation.5 Two Union
officials also attended. These were Business Manager
Terrence Quinn and Organizer Joseph Guglielmo.
In September 1982, the Union filed a representation
petition in Case 39-RC-370. An election was conducted
by the Board on November 30, 1982. McVeigh served as
the Union's observer. The list of eligible voters produced
and filed by the Respondent prior to the election pursu-
ant to Excelsior Underwear, 156 NLRB 1236 (1966), con-
tained the names of 10 employees: John McVeigh, John
Alberson, Gerry Thuotte, Mark McGuire, Keith Harris,
John Wysocki, Scott Lambrecht, Frederick Bruning,
Paul Baker, and Christian Grillo. All of these employees
with the exception of Lambrecht and Grillo were active
union adherents. Grillo, as noted, was a supervisor of the
Instant Plumbing operation at the time.
The Union won the election. Respondent filed objec-
tions to the election. Subsequently, on March 2, 1983,
the Union was certified in the appropriate unit previous-
ly described. Later, on November 14, 1983, in a Decision
and Clarification of Bargaining Unit, the unit was clari-
fied, without employer opposition, or even appearance at
the hearing, to include the employees of Jones, Groton,
and Instant Plumbing as previously described.
C. The Respondent's Reaction to the Union
Campaign, Including Expressions of Animus and
Alleged Violations of Section 8(a)(1) of the Act
Paul Baker started working for Jones Plumbing on Oc-
tober 9, 1982, as a journeyman plumber. He signed a
5 Grillo testified that while he was running Instant Plumbing for Re-
spondent he also carried printed cards listing his title as project manager,
Groton Piping. Grillo also, in October 1982, hired employee Joseph Per-
etti to work for Respondent At the first day of hearing Respondent ad-
mitted an amendment to the complaint alleging Grillo as a supervisor and
agent of Respondent under the Act.
JONES PLUMBING CO.
union authorization card, attended all the union meet-
ings, and voted in the election.
On October 14, 1982, Baker was working on building
.37 at the Underwater Sound Lab in New London. Baker
testified that Jones approached him and Lambrecht
there, asked them if they were approached by the Union,
and said he was going to do everything in his power to
keep it out. Jones, who testified at length during the
presentation of Respondent's case, was not questioned as
to any of the alleged acts of coercion and interference
with employee Section 7 rights which comprise the
8(a)(1) conduct set forth in the complaint. Neither were
the employees who testified about these incidents, includ-
ing Baker, questioned about them during their cross-ex-
amination by Respondent's counsel. Each of the employ-
ees, including Baker, who related various alleged 8(a)(1)
conduct, were straightforward in their recital, testified
almost invariably without direction or suggestion, and
gave sufficient facts relating to location of the conversa-
tion, the participants, setting, and circumstances, and
provided corroboration as to certain incidents to warrant
the finding that they should each be credited in their re-
citals. I conclude that Jones' questioning of the two em-
ployees meets the basic test for evaluating whether inter-
rogations violate the Act: whether under all of the cir-
cumstances the interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the Act.
See Rossmore House, 269 NLRB 1176 (1984). The em-
ployees, who had not openly declared their union adher-
ence, were approached by the highest level of manage-
ment at the jobsite, the question posed was not casually
framed, and it was immediately followed by a statement
of intention which set the tone for the interchange.
There was also no occasion to seek to poll employees as
to their union sentiments since no demand to bargain was
outstanding to which a reply was being sought, and as
the further remark made clear, the employees were not
informed that their response would not result in reprisal.
See Blue Flash Express, 109 NLRB 591 (1954).
John Wysocki, employed by Respondent from August
1981 through September 1983 as a working foreman/-
journeyman plumber, attended the fall 1982 union meet-
ings, signed an authorization card he obtained from
McVeigh, and voted in the election. In October 1982 he
was also approached by Jones at the Underwater Sound
Lab jobsite, building 37, who asked, "John, why did you
betray me, I thought you were anti-union?" Wysocki re-
plied, "I was, but it seems as though the harder I work
for you the less money I make." Wysocki had raised his
'voice, and Jones then said, "There are many ears around
here, and we will discuss this at a different time."
By forcing Wysocki to disclose the reason for his
union sentiments in a context in which he was made to
understand that Jones was aware of his union activities
and,that such conduct was a betrayal of Jones and less-
ened Wysocki's standing as an employee, Respondent
reasonably created the impression that Wysocki's union
activities were under surveillance and coercively interro-
gated Wysocki as to his union sympathies in violation of
Section 8(a)(1) of the Act. Zero Corp., 262 NLRB 495
439
(1982); Paul Distributing Co., 264 NLRB 1378 (1982);
Metropolitan Life Insurance Co., 256 NLRB 626 (1981).6
Joseph Peretti was employed by Respondent as a jour-
neyman plumber from early November 1982 through
mid-February 1983. At his initial employment interview
by Chris Grillo at Grillo's home on a Sunday evening
shortly before starting work, Grillo asked him his feel-
ings on unionization and organized labor. Peretti told
Grillo that he was rather indifferent to the whole situa-
tion. Before Peretti left, Grillo said there was an organi-
zational drive going on at Groton Piping, and that he,
Peretti, would be approached and not to pay any atten-
tion to them. Shortly after returning home that evening,
Peretti received a phone call from Grillo. Grillo said:
"Joe, let me ask you if there was a union vote, how
would you vote?" Peretti replied he would vote no, and
Grillo said, "You are hired." Grillo also gave Peretti an-
other week off at his request before he had to, report for
work. Peretti had been hired after the eligibility cutoff
date, and so was ineligible to vote. However, Grillo was
not sure and kept reversing himself as to Peretti's eligi-
bility in statements to Peretti on the day of the election.
Grillo denied ever asking Peretti about his union activ-
ity, but acknowledged mentioning to Peretti in his con-
versation with him that they were under a union vote,
and would have to return from work to vote. He also
denied telling Peretti he was ineligible to vote. Neither
of those denials is inconsistent with Peretti's attributing
to him the inquiry as to how he would vote-a subject
as to which Grillo was not questioned. Neither was
Grillo asked on Respondent's direct examination whether
he had a telephone conversation with Peretti before his
hire. Peretti's testimony on this matter is credited.
By strongly appearing to condition Peretti's hire on his
rejection of the Union, reasonably leading Peretti to con-
clude that his hire and continued employment required
him to refrain from union support, Respondent, by its
Supervisor Grillo, coerced an applicant for employment,
and interrogated him as to his union sentiments and sym-
pathies in violation of Section 8(a)(1) of the Act. See I.
M. Tonaka Construction v. NLRB, 675 F.2d 1029 (9th
Cir. 1982); Furniture Distribution Center, 234 NLRB 751
(1978).
McVeigh started employment with Jones Plumbing in
February 1982 as a working foreman/journeyman
plumber. In October 1982 Jones went to the McAllister
Hall jobsite at the Coast Guard Academy in Groton,
Connecticut, and told McVeigh that the production on
the job was down, and he did not know if it was due to
union activities, or what, and that it had better pick up
or else. When McVeigh asked what he meant by "or
else" Jones said, "[T]ake it any way you want. Take it as
a threat or whatever, and if you don't like it, you can
leave now." Jones went on to say that he had dealt with
the unions before and that he could not compete with
other contractors in the area. He had to put up with the
Union, and they would have to do a 100-percent turn
6 The claim asserted by the General Counsel in her brief that Jones'
comments also, independently, disparaged the Union in violation of Sec
8(a)(1) of the Act is rejected, as it is neither alleged in the complaint as
having occurred in October 1982, nor was this issue fully litigated.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around from their past experience , and he had two men
for every man he had in the shop now waiting to come
in. Jones also said if it did come to a vote , and a majority
of the people in the shop voted for the Union, it would
not mean that the employees would all be in the Union.
He said that the Union was laying off permit people, and
other contractors were laying off.
The hostility Jones manifested in this conversation to
union organization of his firm and to McVeigh in par-
ticular, because of his activities, coupled with the state-
ment that McVeigh could quit now, and the clear impli-
cation that if he did not, continued activities leading to
the employees ' selection of the Union as their bargaining
agent would ultimately result in loss of employment, in-
cluding McVeigh's own, constitutes a series of threats of
reprisal violative of Section 8(a)(1) of the Act. High Per-
formance Tube, 251 NLRB 1362 (1980). Jones' reliance
on an alleged inability to compete or other contractors'
laying off employees, to support the clear implication of
adverse economic consequences flowing from his re-
marks, does not protect them from a finding of violation.
Jones' statements failed to meet the test required for their
protection that they constitute predictions carefully
phrased, on the basis of objective fact, conveying an em-
ployer's belief as to demonstrably probable consequences
beyond its control. See NLRB v. Gissel Packing Co., 395
U.S. 575 at 620 (1969).
Jones' criticism voiced to McVeigh of the production
on the McAllister Hall job in October 1982 contrasts
strikingly with his comments to McVeigh a month prior,
in September 1982, when he informed McVeigh that he
had gotten another job down at the Submarine Base, and
he would not feel comfortable unless McVeigh ran it for
him. Jones noted that that job would not be ready until
early spring, and he doubted McVeigh would be around
to do or finish that one. I conclude that, by this time,
Jones had become aware, at least, of McVeigh 's role in
organizing . This latter statement , without explanation,
and in light of his later conversations with McVeigh, in-
cluding the October one just reviewed, demonstrates Re-
spondent's early strong antipathy to McVeigh's union
role, and provides additional evidence of motive support-
ing McVeigh's allegation of discriminatory discharge,
but cannot , because it was not alleged in the complaint
nor fully litigated, be found a threat violative of Section
8(a)(1) as urged in the General Counsel's brief.
Sometime later in October 1982 following the conver-
sation between the two at the McAllister Hall site, the
day after McVeigh had called in a materials list, he
called in again to add 30 more feet of pipe, and Jones on
the line said if he had a competent foreman on the job it
would not be necessary to add 30 feet of pipe to a mate-
rials list, and if McVeigh thought he, Jones, was going to
go union , it would be like a "second coming of Christ."
In the same conversation, Jones told McVeigh he would
like to fire him but he could not because he was doing
his job.
On another occasion in the same general period of
time, after McVeigh had a conversation with Jones'
daughter, Eva Jones, corporate secretary and bookkeep-
er for Respondent, Jones first told McVeigh that he
thought he had been abusive to her on the phone when
he was looking for the material that was promised, and
then said, "I know that you are a big guy with the
Union, but I can't do a thing to you because you are
doing your job and I wish you would quit."
In the first of these two conversations , Jones ' comment
clearly was intended to convey to the acknowledged
leading union advocate among his employees the futility
of selecting a union to represent them , since a bargaining
relationship would never be achieved, would never be
agreed to by Respondent, and McVeigh's efforts would
be fruitless. As such, it violated the Act. South Nassau
Communities Hospital, 262 NLRB 1166 (1982); Fred
Lewis Carpets, 260 NLRB 843 (1982). Jones' remarks in
the same and later conversation with McVeigh , coupling
the employee's union activities with a desire to see him
removed from Respondent's work force, either voluntari-
ly then or involuntarily in the future , constitute an im-
plicit threat of discharge also in violation of Section
8(a)(1) of the Act. "[I]t conveys to employees the clear
message that support for the Union and continued em-
ployment are not compatible." L. A. Baker Electric, 265
NLRB 1579, 1580 (1982).
In November 1982, while working in Newport, Rhode
Island , at Pier 2 , Jones came on the job and spoke with
Wysocki. Jones told him he was happy with his work.
He also said he would not go union because if he did,
the Union would own one-third of his business , and that
he would do whatever he had to do-follow the law, ne-
gotiate, but he was prepared at that time to replace all of
the employees if they walked off the job, and that was
the entire organization . He added he had made up his
mind that he would just not go union at the time.
Jones' statements here combine a threat of discharge
for engaging in the protected concerted activity of strik-
ing, as well a statement informing a known key union ad-
herent among his employees that their selection of the
Union as their bargaining representative would be fruit-
less and futile, each an independent violation of Section
8(a)(1) of the Act. See Fred Lewis Carpets, supra. These
particular remarks make clear that regardless of the
Union 's achievement of status as bargaining representa-
tive Respondent would never strike a bargain with it,
thus forcing a strike and the loss of the employees' jobs.
These remarks were also made in the context of other
conduct violative of Section 8(a)(1) directed to this and
other employees . See Grove Valve & Regulator Co., 262
NLRB 285 (1982).
On December 1, 1992, the day after the representation
election conducted in Case 39-RC-370, at the Newport,
Rhode Island Pier 2 location , Jones told Wysocki that
there was one man that he would like to fire. Although
Wysocki informed Jones that he did not want to know
who it was , the timing of this statement , in the context of
Jones' other remarks directed , in particular , to McVeigh,
the Union's key organizer among employees and its ob-
server at the previous day's election , won by the Union,
leads to the inevitable conclusion that Jones was singling
out McVeigh for his special ire. Twice before Jones had
suggested to McVeigh that he quit and had suggested
that he hoped to find grounds to fire him. It is clearly a
naked threat of discharge violative of Section 8(a)(1).
JONES PLUMBING CO.
Furthermore, on December 14, 1982, according to the
credited and uncontradicted testimony of John Alberson,
while he, Jerry Thuotte, and another employee were
standing in front of the McAllister Hall jobsite around 10
a.m. on a coffeebreak, Jones came up to them and, after
asking what they were doing, stated that John McVeigh
was making a mess of the job, and he was not working
for him, he was working for Terry Quinn, that Terry
Quinn "gave him a fucking again."7
Such conduct disparaged the Union directly to the em-
ployees and also created the impression among them that
McVeigh's union activities were under surveillance, in
violation of Section 8(a)(1). NLRB v. Eastern Steel Co.,
671 F.2d 104 (3d Cir. 1982); Sterling Sugars, 261 NLRB
472 (1982).
Finally, apprentice plumber/pipefitter Mark McGuire
was called into Jones' office around 5 p.m. in December
1982, where Jones told hum he was going to lower the
shop to 5 or 6 employees (the employee complement had
been approximately 10). He was going to do everything
legal. He was going to lay off by seniority. Because
McGuire was the senior apprentice on the job, he would
be the last to go. He also stated that he did not know
what "we were all going to gain out of all this, and that
if we wanted to play hard ball," he was going to play
hard ball.
The reference to "playing hard ball" belies the earlier
reference to doing everything legal. Jones was implying
here that following the Union's election win, the employ-
ees could expect that he, Jones, would be making things
more difficult for them on the job. McGuire could rea-
sonably conclude that conditions would be harsher and
that Jones would be more strict in his treatment of the
men. It is also reasonable to conclude that Jones was
making a veiled threat to select the union advocates
among his employees for layoff as he trimmed his work
force. Jones' reference to "this" was to the union move-
ment, and the combined implied threats of more onerous
working conditions and layoffs in retaliation for the em-
ployees' selection of the Union as their bargaining agent
were violative of Section 8(a)(1).
D. Respondent's Alleged Violations of Section 8(a)(3)
of the Act
1. Gerard Thuotte was employed by Respondent as a
journeyman plumber/pipefitter from June 1, 1982, until
January 12, 1983. He had 38 years of experience in the
trade. Thuotte attended several union organizational
meetings in the fall of 1982, signed a union authorization
card given to him by McVeigh, and voted in the No-
vember 30 election.
Thuotte was installing toilets on the McAllister Hall
job on November 17, 1982, while John Alberson was
welding at the same site. Early in the morning of No-
vember 18, Jones telephoned Thuotte and told him there
was no work for him. That day, November 18, Alberson,
7 During his cross-examination, Jones expressed his feelings that Quinn,
the Union 's business manager, had been hostile to Jones for the last 7 or 8
years and "is out to destroy his business ," and that McVeigh was closely
allied with Quinn, and was working in collusion with him to do Jones as
much harm as possible
441
who was not a licensed plumber and had never before
done such installations for Jones before, was assigned to
installing toilets in Thuotte' s absence . The following day,
November 19, Thuotte was back at the site installing toi-
lets and Alberson was back doing the normal welding
work.
Jones, when asked about this incident on his direct ex-
amination by Respondent's counsel, at first could not
recall it, and then vaguely related it to a lack of materials
or tools, or something else at the site, which resulted in
his being sent home for the balance of the day. I credit
Thuotte and Alberson as to their recollection of the inci-
dent. Respondent offered no reasonable explanation f Dr
the denial of work that day to Thuotte. While there is no
direct evidence of Jones' knowledge of Thuotte's union
activities, Jones' comments about McVeigh's leading role
and his evident desire to rid his firm of him, the extreme
hostility he harbored toward the Union and the threats
he voiced to other employees to retaliate by laying off
and imposing harsh treatment on a group of employees if
the Union was successful in its organizing drive, and in
the absence of any valid explanation for Thuotte's treat-
ment on November 18, I infer that Jones' action on that
date was part of a pattern of conduct whose aim was to
crush the Union and thwart its drive. Under such cir-
cumstances the finding of an unlawful motivation does
not depend on Respondent's knowledge that each em-
ployee discriminated against was engaging in union ac-
tivity. Hedison Mfg. Co., 249 NLRB 791, 794 fn. 13
(1980), enfd. 643 F.2d 32 (1st Cir. 1981). See also Rea
Trucking Co., 176 NLRB 520, 525 fn. 5 (1969), enfd. 439
F.2d 1065 (9th Cir. 1971).
2. John Alberson worked for Respondent from August
1981 to July 15, 1983. He was a journeyman welder,
steamfitter, and rigger. Alberson signed a union card,
passed out three or four cards to other employees, at-
tended the union meetings held in September and Octo-
ber 1982, and voted in the representation election on No-
vember 30.
Alberson, John McVeigh, Paul McGuire, and John
Wysocki, the working foremen, had been assigned Re-
spondent's trucks from the beginning; of their employ-
ment which they drove to and from home to worksites.
Respondent paid for the gasoline which they purchased
on Respondent's credit cards and, according to Alberson,
he was reimbursed periodically every 3 or 4 months for
tolls on his presentation of receipts. In December 1982,
Jones came on the McAllister Hall jobsite, where Alber-
son and McVeigh were working together. Alberson
asked Jones about reimbursing him for his toll receipts.
Jones said he would take care of the tolls right then and
Alberson could turn his truck in at the end of the
evening. Jones then turned to McVeigh and told him lie
could also turn his truck in the end of the evening, plus
all the credit cards and company keys. Neither Alberson
nor McVeigh ever regained use of company vehicles or
credit cards. The other working foremen, Paul McGuire
and John Wysocki, retained the use of company vehicles
and credit cards until they left the employ of Respond-
ent.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones testified that, in early December, Alberson asked
him about reimbursement for tolls incurred in traveling
to and from work. Jones told him he did not authorize
or did not pay tolls. Alberson said it was no problem.
Jones confirmed he then said, "We would settle any
problem that might exist right now. Turn in your truck"
and, turning to McVeigh, told him to turn in his truck.
Jones said he made this decision as an economy measure
because of extremely high gas bills and because of par-
ticular economic problems arising on the McAllister
Hall, Coast Guard Academy job. Since June, Jones had
requested employees using company vehicles to list their
mileage weekly on their timecards as a check on gasoline
consumption. Jones acknowledged, however, that a seri-
ous investigation of gasoline consumption was not pur-
sued until early October. At that time he had heard that
gasoline was being diverted for personal use. At the
same time , a reorganization in the office management
staff, with the original office manager leaving because of
illness and Jones' daughter, Eva, taking over the compa-
ny books, enabled an examination of gasoline bills to be
made.
The only document Respondent offered during the
hearing to substantiate the claim of increasingly high gas-
oline consumption was a summary of monthly gasoline
purchases from May 1982 to January 1984 prepared
within I week of the hearing." The inference is warrant-
ed that no documentation was prepared in October
which showed the monthly gasoline costs. Otherwise,
Respondent would have produced the results of its inves-
tigation of the cost made at that time. Jones also denied
that the union campaign affected the October review, or
that he was even aware of the union effort at the time.
Yet, Jones knew of the union drive from the filing of the
petition in September 1982, and questioned employees as
early as mPd-October if they had been approached while
affirming his intent to do everything he could to keep
the Union out. See supra.
It is noteworthy that, in connection with his decision
to remove the company vehicles from the two men,
Jones also testified about having observed Alberson, in
October, accompanied by his son, driving a company ve-
hicle after work hours for the purpose (he later in Octo-
ber came to believe and had the "distinct impression"
after receiving a notice from the Board) of attending a
union meeting. Jones acknowledged that employees
could perform personal errands, shop, or go to a restau-
rant in a company vehicle so long as the vehicle was
available for night calls, and was used primarily for the
good of the Company, carrying tools, men, and materials
to and from work locations. As an example, Jones re-
ferred to the fact that McVeigh, with the truck, could
pick up ordered materials at the Gales Ferry facility on
his way to the McAllister Hall site from his home in
Gales Ferry, and make pickups during the day from a
local supply house. While Jones acknowledged not re-
8 This proposed exhibit was rejected because of Respondent's failure
and refusal to make available at the hearing the original documents upon
which it was based so that the General Counsel , who raised questions
about its accuracy, could compare them Neither did Respondent call
Eva Jones, the one who prepared the summary and thus the competent
witness to testify about its preparation. (See Tr 180-188 )
moving a company truck from John Wysocki because his
services required its use on a job in Newport, he failed
to explain its removal from McVeigh while, on Decem-
ber 3, he continued to perform as working foreman at
the McAllister Hall site. Jones, himself, Eva Jones, his
daughter, and his wife each continued to use company
gasoline credit cards.
The precipitate manner in which Jones ordered Alber-
son and McVeigh to turn in their credit cards and trucks
on December 3, 1982, support the conclusion I reach
based on all of the evidence that Respondent was moti-
vated in taking this action by these employees' strong
prounion actions and sentiments, and that the business
reason Jones advanced for the first time during trial to
support his action was not a legitimate concern on the
date in question, and appears to be a belated, unsuccess-
ful effort to make rational an act which was, in reality,
an immediate, emotional, viseral reaction to the two em-
ployees among his work force who were most responsi-
ble for the Union's advent. See NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
3. Three days after Jones took McVeigh's assigned
truck and credit cards away, on December 6, he re-
moved McVeigh from running the McAllister Hall job
and assigned him to installing stack packs (flue dampers)
at a Navy housing project. The McAllister Hall job paid
$20 per hour as the prevailing wage under the Davis-
Bacon Act. The Navy housing stack pack job paid a pre-
vailing wage of $12.02 per hour. Jones told him it took
45 minutes to install one of these units, and as long as he
maintained that schedule, he would have a job. Accord-
ing to McVeigh, he had been assigned to McAllister Hall
since June 1982 and perhaps weeks of work remained at
the time of his transfer.
Jones told McVeigh that production on the McAllister
Hall job was down and that was why he was being taken
off. Jones denied it was done because of McVeigh's
union activities. According to McVeigh there had been
delays on the McAllister Hall job and he could not finish
the job because necessary materials had not been deliv-
ered. Among these were certain three-way valves which
he had ordered as early as June, again later on in the
summer, and in early fall. Only after his transfer did he
see them at the shop along with other parts he had re-
quested.
According to Jones, up until the middle of October, or
the first part of November, he had no reason to complain
of McVeigh's performance McVeigh was the foreman at
the site responsible for a prompt and proper completion
of the project. After the project manager, Denny
Hayden, left, Jones himself took over supervision of the
project and in November began to notice a severe reduc-
tion in production in terms of pipes in place. When ques-
tioned, McVeigh responded he was doing the best he
could, and his manner became increasingly arrogant.
Jones did acknowledge that McVeigh complained occa-
sionally about materials not being delivered, but the shop
was starting to receive multiple daily orders for materi-
als, contrary to normal practice, and, in one instance,
McVeigh had ordered 4-inch diameter drain pipe when
he needed 3-inch instead. McVeigh was also only pick-
JONES PLUMBING CO.
ing up material from the shop after 8 a.m . instead of on
his way to the jobsite.
Jones admitted he did not discuss these shortcomings
with McVeigh. With the job not getting completed and
the labor hours mounting up, he removed McVeigh from
the project.
Later in his direct examination on presentation of Re-
spondent's defense, Jones now claimed there were defi-
ciencies in workmanship on the McAllister Hall job
which justified McVeigh's removal. Yet these deficien-
cies were discovered only after McVeigh left the project
and so could not have been weighed in the decision to
remove him . Similarly, Grillo, Respondent 's shop super-
intendent since January 1983, testified that a lengthy
punch list of work to be corrected or completed on the
McAllister Hall job which was received from the gener-
al constructor after McVeigh's transfer and later layoff
had nothing to do with either event. Even a claim that
materials had been left all over the jobsite, including
areas where work had been completed and in the trailer,
was an alleged discovery made after McVeigh's transfer.
Respondent 's failure to document the delay in the
McAllister Hall project attributable to McVeigh, or to
provide evidence of the prompt delivery of the material
and, particularly, the three-way valves, to which
McVeigh alluded, coupled with Jones' admitted great an-
tipathy and hostility to McVeigh's union involvement,
the timing of his transfer coming 3 days after the remov-
al of truck and credit cards found discriminatory, and
the linking of the deterioration in McVeigh's perform-
ance with a change in his attitude , occurring at the time
of his greatest involvement in organizing activity, and
Jones' belated reliance on job deficiencies which were
not discovered until after the transfer , lead me to con-
clude that Jones seized on a delay in installation for
which McVeigh could not be held responsible, as a pre-
text to reassign him to a jot ) paying a substantially lower
irate of pay in order to punish him for bringing in the
Union, in violation of Section 8(a)(3) and (1) of the Act.
Jones was fulfilling his threat made the same month to
'Mark. McGuire to start "playing hard ball."
4. On December 7, 1982, John Alberson was working
at the Gales Ferry facility prefabricating 10-inch pipes
for the McAllister Hall job. After about 6 hours, Jones
walked in and told Alberson to close up shop and go
home. When Alberson asked why, Jones said he had no
more work for him that day, and to go home. Alberson
lost 2 hours' pay. The next day, Alberson continued to
prefabricate pipe as he had been doing the prior day.
The job had not been completed. Jones offered no expla-
nation for this action . I conclude that it constitutes a
form of harassment to deprive a know union advocate of
work in violation of the Act.
5. On December 9, 1982, 2 days later, Alberson was at
the facility, this time working on heavy pipe, weighing
about 800,000 pounds a length. As Alberson explained,
when engaged in heavy rigging he generally had a
helper or another mechanic ' give him a hand. On the
same type of 10-inch pipe he had two helpers . Because
of the weight and bulk of the pipe it is dangerous to
work: alone. Alberson asked Eva Jones twice for an as-
sistant. He had to go through her for any work requests.
443
She said she would ask her father . Jones came in later in
the day and told Alberson he did not need any help. Al-
berson continued working alone for the remainder of the
day.
Jones admitted he refused to provide Alberson with a
helper because he did not need one. Based on his exten-
sive experience in running a plumbing business , the mate-
rials handling equipment was capable of being operated
by one man. Alberson had the necessary slings by which
the pipe could be attached to the crane if it had to be
moved . Jones added that the shop man was available but
apparently out of the shop; Alberson could have called
him to come in to help.
Jones failed to reconcile his denial of aid to Alberson
with his volunteering on the witness stand that the shop
man was available. By his refusal, by telling Alberson he
did not need help, Jones foreclosed any opportunity
open to Alberson to secure assistance . Jones' testimony
confirmed that Alberson was obliged to seek assistance
through management and could not act on his own. Nei-
ther did Jones explain to Alberson why he did not need
a helper nor deny Alberson's testimony that with this
pipe he had two helpers assist him in the past Jones' ex-
planation, on the record, that the material handling
equipment was capable of one-man operation, did not
deal with Alberson' s legitimate concern that his oper-
ation of the equipment, given the weight and bulk of the
pipe, would place his safety in jeopardy.
The only reasonable explanation for the denial of aid
was that Jones was carrying out his threat to punish
union activists, even at risk to their personal well-being,
Amoco Fabrics Co., 260 NLRB 336, 355 (1982).
6. During the conversation, previously described
supra, that Jones held with Mark McGuire in his office
in December 1982, Jones also told McGuire that from
now on upon his absence he would have to bring in a
doctor's slip. McGuire, who was hired in late fall 1981,
had been absent without incident a few times before this
conversation. He had never been made aware previously
of a requirement of medical documentation for an illness.
In fact, when McGuire in the past had produced towing
bills when he was absent on occasion because of car
breakdown, Jones did not want to see them and only did
so reluctantly. On another absence occasioned by the
death of an in-law, he had called in and been advised by
Eva Jones it was all right and not to worry. This stated
requirement of medical documentation on an illness for
even 1 day followed on the heels of Jones' promise to
play hard ball in retaliation for the employees' unioniza-
tion. Respondent in the presentation of its case-in-chief at
no time claimed that such a medical requirement was
either desirable or necessary to abort excessive absentee-
ism. Jones made no comment about the requirement
during his testimony. The clear import of the require-
ment is that it was designed to show employees that they
would suffer harsher treatment because of their union ad-
herence and might , therefore , influence future employee
conduct. See South Nassau Communities Hospital, 262
NLRB 1166 fn. 2 (1982).
7. On December 16, 1982, Thuotte and Alberson were
working at the McAllister Hall jobsite . According to Al-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
berson, they had unpacked their tools and had started to
work. After half an hour Jones showed up and went
over and spoke to Thuotte, who then walked over to Al-
berson and told him to pack everything up. "We have no
work for the day. We are going home per orders of Mr.
Jones." They left. The next day, again after a half-hour's
work, the superintendent on the site told Alberson he
had a call from the Groton Piping office. Alberson got
to the phone and Eva Jones told him that her father said
for her to relay the message that he was closing the job-
site again for the day. "Pack up your tools, and go
home." Both Alberson and Thuotte lost 7-1/2 hours' pay
each day.
Thuotte confirmed that, although there was work for
each of them on the 2 days, on the first day Jones told
him there was no work, and the same thing happened on
the second day. On the next workday9 they both re-
turned to the site and continued the work which had
been interrupted for the better part of 2 days.
According to Jones, his office received a telephone
call early on December 16, from the McAllister Hall site,
advising that Respondent' s site Superintendent McGuire
was not in that day and the men, Thuotte and Alberson,
did not know what to do, they could not get at their
tools, because they did not have the key to the tool-
boxes. Jones immediately went to the site, questioned
both employees, received the "impression" that neither
had the toolbox keys, and, further, that Alberson did not
know the measurements or what he had to do for the
rest of the day, and so he told them to take the rest of
the day off. The next day the same situation prevailed,
McGuire was out, Jones went to the site, the tools were
locked, the men were without leadership, and he sent
them home.
Thuotte corroborated Alberson's testimony that the
tools were already laid out when Jones arrived on both
days. Further, he confirmed that he had the toolbox keys
in his possession and that Jones must have know this
since he had worked at the site previously in the absence
of working foreman McVeigh who had, until his Decem-
ber 3 transfer, been running the work. Alberson also tes-
tified credibly that he had often worked on jobs for Re-
spondent in the past without supervision.
Jones in using the phrase, his "impression" that
Thuotte did not have the keys, was careful to avoid the
flat out statement that Thuotte denied having them. The
phrase as well as his testimony on cross-examination con-
firmed that Jones did not directly question Thuotte about
the keys, an odd circumstance indeed. I also credit both
employees over Jones that they had already commenced
work with the necessary tools when Jones arrived. It is
also difficult to believe that, having determined on the
first day that work could not go forward because of a
lack of tools, Jones would have permitted such a situa-
tion to prevail on the second day, thereby causing- a fur-
ther delay in a project where Respondent was already
claiming economic losses because of lack of production.
I reject Jones' story which would authenticate such an
unlikely series of events.
9 Thuotte testified that this was December 18, 1982, but that day was a
Saturday, apparently not a workday,
In, fact, Jones did not visit the site the second day,
having his daughter transmit for him the orders to close
it down.
The General Counsel has made out a prima facie
showing of layoff motivated by the employees' union ac-
tivities. Respondent's economic defense falls far short of
demonstrating that the employees would have been sent
home absent their union involvement.
During Alberson's cross-examination , he acknowl-
edged having had a conversation about a Charleston,
South Carolina worksite. Alberson agreed that he told
Jones he would not work on that site unless he was paid
for the time he lost during his discriminatory layoff on 2
days in December 1982. Alberson then acknowledged re-
ceiving those 2 days' pay and signing a release . Respond-
ent's offer of the release dated March 11, 1983, was re-
jected on the grounds that it related solely to the back-
pay issue not in issue in the proceeding. Respondent's as-
serted ground for its inclusion in the record, that it
showed a tendency on Alberson's part to reject offers of
work and therefore related to a subsequent rejection of
an offer to return to work on Alberson's part, to be dis-
cussed infra, was also rejected as not probative of the
facts and circumstances relating to the November 1983
correspondence to be discussed infra. As to whether the
payment and the waiver constitute settlement of the
backpay clause for Alberson arising from the 2 days'
layoff in mid-December 1982, a matter which Respond-
ent also asserts, the record as it now stands is insufficient
to determine whether the moneys constitute a full pay-
ment of backpay due under Board law so as to satisfy
Respondent's obligation thereunder. There is also no evi-
dence appearing from the waiver itself that proper de-
ductions and payments were made for social security or
other protective coverages. As for the other aspects of
the remedy normally required to satisfy Respondent's ob-
ligation arising from the incident, Alberson's execution of
such a release was done at a time when none of the
other discriminatory acts to which he had been subjected
had been properly remedied. Neither was the Charging
Party Union involved in its execution. Under these cir-
cumstances I conclude that the waiver cannot serve to
remove the public remedies of backpay , reinstatement,
notice posting, and the like arising from the Respond-
ent's discriminatory actions against Alberson. Ideal
Donut Shop, 148 NLRB 236 (1964), enfd. 347 F.2d 498
(7th Cir. 1965). In any event, the record does not show
that Alberson declined any South Carolina work or was
even offered any. By the date of his last layoff, on July
15, 1983, infra, the southern work had long been com-
pleted.
8. On December 15, 1982, Paul Baker worked at the
Navy housing job, installing stack packs. Jones called the
site and asked Baker to stop into his office before he
went home that night. Baker had intended to stop in the
office because it was payday. When he arrived, Jones
handed him his check and said, "This is your last
check." There was no further conversation. Along with
the check Baker received a notice of layoff for lack of
work. Subsequently, Baker received a registered letter
postmarked February 2, 1983, asking him to return to
JONES PLUMBING CO.
work on February 7, a Monday. It snowed on February
7, so Baker did not report until February 8. He' worked
February 8, 9, and 10. On February 11 Jones called him
in to his office and laid Baker off again. Jones said he
was closing that part of the job at the Underwater Sound
Lab at the Submarine Base, New London. Again,
Baker's slip said it was a layoff for lack of work. Baker
was not thereafter recalled for work.
After Baker's initial hire on October 9, 1982, a month
later Jones hired Joseph Peretti, also an experienced
journeyman plumber. It will be recalled that Peretti was
hired only after assuring Superintendent Grillo that he
would vote against the Union in the upcoming represen-
tation election. When an opening arose for an experi-
enced plumber to take over the residential service work
performed under the trade name of Instant Plumbing
Peretti was offered the position and took over that work
in early to mid-January 1983.
Shortly after commencing the Instant Plumbing work,
Grillo called Peretti to express dissatisfaction with Peret-
ti's coming in to work late and leaving early on a day he
had notified the office he was not feeling well and about
his production on a prior day. Then Jones called to tell
him he was facing labor problems, that he would have to
bargain with the Union in good faith, and that he would
be "depending on me and Chris [Grillo] for after all
these troubles were resolved." So that it was important
for him and Chris to get along.
Towards the end of January 1983, Peretti was called
into the office and offered a job in South Carolina. Jones
told him that he had two or three men working down
there and he understood Terry Quinn offered them jobs
at a local union firm, and got them union books, which is
illegal. Jones added, "I've got no men down there, and
Scotty [Lambrecht] is all alone." Peretti responded that
while he wanted the experience in pipefitting and was
good friends with Scotty, his mother was in poor health
and he was concerned about leaving her alone. That
evening, John McVeigh called Peretti to offer him a job
with a local union mechanical contractor. The following
clay Peretti declined the South Carolina job and severed
his association with Jones.
Another individual, Vincent Perrone, testified that in
mid-January 1983 he had also been offered work by
Jones and Lambrecht in Charleston, South Carolina. He
was told the job would last 2 to 3 months, to March
1983. He worked in South Carolina for the last 2 weeks
in January doing plumbing and pipefitting work before
he quit. Other employees there were Lambrecht and two
newly hired ones, Roger Wells and Roger Chamberlain.
Jones acknowledged that he operated a jobsite during
the spring of 1983 at Charleston, South Carolina. Origi-
nally, four employees were assigned to the site, including
Scott Lambrecht as jobsite superintendent. As Jones ex-
plained it, as a result of telephone contact from Quinn of
Local 305 offering the employees union jobs in the vicin-
ity of Respondent's Connecticut facility, two employees
on the site left and one, Perrone, who had been in Atlan-
tic City for a few days, failed to return to the site, and
the work effort in South Carolina was seriously ham-
pered. Yet, the work there continued to substantial com-
pletion of the project in May 1983. It had commenced in
445
November 1981. Jones also acknowledged hiring Cham-
berlain in January 1983 for that site . Other employees
hired in early 1983 included Larry Thompson, a working
foreman, journeyman plumber/pipefitter, from February
to May; Robert Krinjack, a welder/pipefitter in June
1983; apprentice plumber/pipefitter William Marzusso
from March to September 1983; apprentice Thomas
Lambrecht, Scott's brother, from July to September
1983; and Kurt Nowak, a welder, from July 1983 and
still working.
Jones testified that he laid off Baker from a Newport
job where he was working with Wysocki because it was
basically complete before he was sent to the Navy hous-
ing site to install stack packs (flue dampers), but Jones
did not adequately explain why Baker was let go from
the flue damper work other than agreeing his slip listed
lack of work. (Tr. 243.) After recall in February for 2 or
3 days to work on a project of building one structure
and renovating another at the New London Submarine
Base, which had been ongoing for 6 to 8 months, Jones
laid off Baker again for lack of work. Jones never ex-
plained why such a competent journey plumber was not
considered for or offered the residential work performed
by Instant Plumbing nor why Baker was not offered the
ongoing work in South Carolina, nor why Jones hired a
number of new journeymen plumbers in January and
February 1983 instead of offering recall to Baker.
I conclude that Peretti received preference in hire in
November 1982 and continued employment thereafter
over Baker and preference in reassignment to the resi-
dental work again over Baker because of his willingness
to accede to Jones' antiunion posture and Jones' stated
reliance on him for this reason. I also conclude that
Baker was discriminatorily denied the Charleston, South
Carolina work because of Jones' extreme hostility to
Local 305 for causing other employees assigned there to
quit in favor of jobs with firms under contract to Local
305. Jones' unwillingness to even consider Baker and in-
stead hire new employees for Connecticut and South
Carolina work shows again the effect of Respondent's
get-tough policy of putting the squeeze on the group of
employees who signed cards and voted in Local 305 on
November 30, 1982. Baker was part of that group and
was subjected to unlawful interrogation in October by
Jones (see supra.) Among the employees who comprised
the work force that voted in the election, only Lam-
brecht and Grillo, an admitted supervisor, could be trust-
ed to support Respondent's antiunion stance. As will be
shown by the conclusion of this analysis, every other
employee in that group was eliminated from Respond-
ent's employment, only Wysocki having left voluntarily.
All of the acts of discrimination already described, as
well as the discharges, took place within a 6-month
period immediately following the representation election.
Such a pattern of discharges and other discriminatory
acts, without adequate basis against both known union
advocates and others with whom they were associated
and against whom Jones issued threats, created an im-
pression of surveillance of their union activities and dis-
played his union hostility, justifies the inference which I
draw now in the case of Baker that his layoff, where
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work continued to be available for new employees,
among them a known coerced, antiunion individual, con-
cealed Respondent's antiunion motivation in violation of
the Act. See Wellington Hall Nursing Home, 257 NLRB
791 (1981), and cases cited therein.
9. Frederick Bruning , a journeyman plumber, was first
employed to operate the Instant Plumbing truck per-
forming residential service work in May 1982. He signed
a union authorization card given him by McVeigh, at-
tended the three or four union meetings held that fall,
and voted in the election.
Apparently, sometime in 1982, Bruning had been reas-
signed to installing stack packs at the Navy housing site.
However, he continued to perform Instant Plumbing res-
idential plumbing repairs for half the time. He was
unable to meet the quota Jones had set of installing 1 flue
every 45 minutes or 10 a day. He also had a problem
with the electrical portion of the work. Then, on Janu-
ary 17, 1983,10 when Bruning brought the truck in at the
end of the day, Jones gave him a pink slip along with his
pay which said he was laid off because of lack of work
and unqualified for available work. When Bruning asked
Jones about it, he was told he just was not qualified, he
was not putting out the amount of work that Jones
wanted. Bruning was never recalled to work nor was he
offered any work in South Carolina.
Jones testified that Bruning was laid off because of re-
peated call-backs and dissatisfaction from residential cus-
tomers, resulting in loss of several of them, as well as his
failure to respond to an emergency call from the Navy
housing site over a weekend at a time when Respondent
was being considered for the repair work there. A final
incident which Jones found determinative was Bruning's
negligence in leaving a drop light on a customer's rug,
causing it to be damaged beyond repair and the loss of
the customer, and risking a fire. According to Jones, it
was Bruning's poor performance for Instant Plumbing
which lessened his workload there and made him avail-
able for work for Groton Piping and Jones Plumbing.
Respondent did not produce any customers or docu-
ments to corroborate its claim of poor workmanship and
loss of customers. Thus, its claim that Bruning's work re-
sulted in over 40 call-backs from customers of Instant
Plumbing is not established in the record. Neither did
Respondent assert or establish during the hearing that
the Instant Plumbing operation was closed down or that
its closing was attributable to Bruning 's work.
Bruning acknowledged having probably made a
couple of residential call-backs per week, but claimed
that at least some of them were attributable to reasons
other than poor workmanship, such as drains becoming
reclogged. But if the job had been successful the first
time , why the necessity to return, unless the problem
was a new one, in which case it would not be character-
ized as a call-back, but as a new call? Bruning also ac-
knowledged that Grillo had spoken to him about too
many call-backs and that he had received complaints
from customers about his performance on the job. Ac-
cording to Bruning, Grillo on a few occasions told him
10 This date is 7 weeks prior to the date, March 7, 1983, alleged in the
complaint
he was doing fairly well, considering he was only a jour-
neyman for roughly a year but that another time he had
said, as far as he was concerned, "I would have been
done a long time ago." Bruning did not attribute any of
Grillo's criticisms of his work to the time period follow-
ing the advent of union organization or its success in the
representation election. As to the burned carpet, Bruning
testified that, at the time he was laid off, Eva Jones told
him he would have to be more careful and she thought
the damage would be covered by insurance. She also
told him he was unqualified. Bruning admitted leaving
the drop light laying on the customer's carpet and
having been informed by the customer that he had
burned it.
Bruning's case is a troubling one. On the one hand, al-
though not one of the union leaders, he was among the
group which signed cards, attended the union meetings,
and voted in the election. An argument could be made
that, in spite of his shortcomings, Bruning had been per-
mitted to remain in Respondent's employ until Jones was
faced with the Union's election win and the realization
that he was faced with a committed union group. Then,
following his disclared intention to play hard ball, Jones
no longer tolerated Bruning's deficiencies and deter-
mined to get rid of him, as he had with Baker and would
with the others, including the key union advocates
McVeigh and Aiberson. While this formulation may
have some weaknesses, I conclude that the General
Counsel did make a prima facie showing that Bruning's
involvement with the Union was a motivating factor in
his layoff. However, I also conclude that Respondent has
here met its burden of showing that Bruning would have
been let go even in the absence of his union activities,
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983); Wright Line, 251 NLRB 1083 (1980).
Respondent's explanation for Bruning's release is not
pretextual. Even Bruning was not able to claim that he
had not been advised of his work deficiencies before the
union campaign. Bruning did not retake the stand to
deny his responsibility in being unavailable on a weekend
to respond to an emergency at the Navy site as alleged
by Jones. It was not unusual for Respondent to give an
employee such as Bruning the opportunity to do some
commercial plumbing work when his own residential as-
signments ran slow and he had shown some deficiencies
in performing residential repairs. When Bruning's poor
performances continued and the incident on a residential
job exposed Respondent to a substantial claim arising
from a very real risk of fire due to his admitted negli-
gence, Respondent established that it would have re-
leased Bruning even absent his union involvement. In
reaching this conclusion I have also taken into account
the absence of actual knowledge of the substance of
Bruning's union role and the absence of any attempt by
Jones to interrogate or attempt to intimidate him as he
did a number of the other employees. Accordingly, I
recommend dismissal of this allegation.
10. On January 12, 1983, Gerard Thuotte was working
on Phase III of the McAllister Hall job. That day
Thuotte called Eva Jones, told her he was running out
of work, and he would like to talk to Ben. Jones came to
JONES PLUMBING CO.
the site, told Thuotte he was satisfied with his work, and
that if he could do electrical work he had another job
for him . The work was hooking up the flue dampers at
the Navy Sub Base . Thuotte said he could not do electri-
cal work, that he was afraid of it, and declined Jones'
offer to train him on the job. t t Jones then said, "You
will have to take a layoff." Thuotte responded that was
just as well since his wife was sick at the time . Jones told
Thuotte he would call him when something came up. He
should stop by the office now and pick up his pay and a
pink slip. When Thuotte got there the pay was ready but
the pink slip was not. He told Eva to mail it to him.
When he did not receive it within the next few days, he
called and learned she had not gotten word from her
father yet. Thuotte said he had to have it for an unem-
ployment claim . She said she would mail it. The slip was
finally forwarded to Thuotte . It said that he left work
voluntarily. In spite of its wording , Thuotte did receive
unemployment compensation . He was never recalled to
work nor offered work at the South Carolina site.
It was Jones' version of their conversation on January
12 that he did not offer to send him to install stack packs
if he could do electrical work, but that he was going to
send him on that job and he could start wiring up the
flue dampers . Further, Jones testified , contrary to
Thuotte, that Thuotte responded that , with his wife sick,
he would just as soon have a layoff slip. When specifical-
ly directed by his counsel as to whether Thuotte re-
ferrred to his lack of qualifications , Jones now added
that Thuotte said he did not know how to wire them
and, when Jones offered to train him , Thuotte declined
(Tr. 215).
I credit Thuotte 's version that Jones , who did not
deny that he had opened the conversation with a compli-
ment about his workmanship , had offered the electrical
work as an alternative to a layoff and that Thuotte had
first made Jones aware of his inability to do the work
and his fear of it before stating that a layoff was accepta-
ble given his wife 's illness . I conclude that only after-
ward did Jones attempt to capitalize on Thuotte's con-
cern for his wife's condition by asserting on the layoff
slip that the separation was voluntary . It is significant
that Jones never testified that he considered Thuotte to
have voluntarily quit nor did he specifically deny
Thuotte's testimony that he would be contacted when
work picked up. Even assuming arguendo, that Jones le-
gitimately took the total conversation as evidencing a
desire on Thuottes' part to take a leave "at that time"
(Tr. 215) to care for his wife , at the cost of any assign-
ment Jones could make , this interpretation hardly justi-
fied Respondent in arguing in its brief that it had no fur-
ther obligation to him . Even Jones did not state on the
record that Thuotte had thereby forfeited his position as
a normal laid-off employee subject to future recall. Jones
himself testified , with respect to another employee, that,
to him , layoff and recall are interchangeable terms that
mean the same thing and the use of either term does not
preclude recall (Tr. 243-244).
11 Although Thuotte had worked on the flue damper job previously,
- he had not done any electrical hookups.
447
I conclude here that by its wording of the layoff slip
and by a determination , never expressed or stated to
Thuotte , to preclude any future recall, contrary to Jones'
stated intention on January 12, 1983, Respondent discri-
minatorily terminated Thuotte , to whom Jones had made
disparaging remarks about McVeigh and the Union and
who had been previously temporarily laid off in violation
of the Act. Alternatively , by giving Thuotte the limited
option of electrical work for which the employee was
not qualified and which he feared , or a layoff, at a time
when Respondent was hiring new employees for Instant
Plumbing work and the South Carolina job , and failing
to recall him 12 when , by the time of the hearing, Re-
spondent had employed at least six plumbers/pipefitters
on work for which Thuotte was qualified by 38 years of
experience , constitutes a constructive discharge, see H.
B. Zachry Co ., 261 NLRB 681, 685-686 (1982).
11. After McVeigh 's December 6, 1982 transfer to in-
stall stack packs which I have concluded was discrimina-
tory , on January 24, 1983, he was approached by Jones
who told him to come in to the office. When McVeigh
did so , Jones said , "We are shutting the job down. Here
is your money." McVeigh also received a layoff slip
which said : "Lack of work." According to McVeigh,
and not contradicted at the time, over half the job of in-
stalling stack packs at the Navy housing site remained to
be performed-at least 4 or 5 months involving over 600
dampers.
In February 1983 , McVeigh received a recall letter
from Respondent . He reported back to work on the same
stack pack job on February 7. On February 10, Jones ap-
proached McVeigh and told him that he was shutting
down the job again . He said , "Here is your dough.
Good-bye." Included with his check was a slip stating he
was laid off for lack of work . McVeigh was never called
back to work.
While at the site on these 4 days McVeigh saw Larry
Thompson who had just become employed and was
working at building 380 at the same site . Thompson, like
McVeigh, was a working foreman journeyman plumb-
er/pipefitter. But McVeigh also had experience in and
was a certified welder.
At the time of McVeigh 's layoff Jones did not supply
any specific reason for McVeigh's last two layoffs other
than the reason appearing on McVeigh layoff slips-lack
of work. Yet, it is clear that Thompson was newly em-
ployed for work at the same Navy housing in February
around the time of McVeigh's last layoff, and he contin-
ued in Respondent's employ until May 1983 . Jones did
not seek to counter McVeigh 's testimony that half the
job remained to be done . Jones did claim at the hearing
that he needed to get 10 flue damper units a day installed
and that McVeigh was averaging 8 units a day. Jones
failed to support this claim with any documentation and
12 Jones testified that prior to the fall of 1982, when the Union cam-
paign commenced, transfer to another job when one wound down was a
subjective decision based on the qualities of initiative, skills, and knowl-
edge. As earlier noted, at his layoff, Jones expressed satisfaction with
Thuotte's work. He was both a plumber and pipefitter with extensive ex-
perience. Jones failed to consider Thuotte for any work other then elec-
trical and never showed that he was under consideration for any future
assignments in South Carolina or elsewhere when they became available.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McVeigh asserted he was installing 8 to 10 per day. Fur-
thermore, Jones also alluded to a punch list of items to
be corrected on the job prepared by a Navy inspector, Is
implying that installations had been made in an unsatis-
factory manner. Respondent could not identify McVeigh
as responsible for any, or any substantial, portion of
them, and, in any event, this list, received well subse-
quent to McVeigh's final layoff, admittedly played no
role in his layoff.
According to Grillo, he showed McVeigh how to do
the damper installations and was subsequently called in
to repair a few in December or January when the boilers
were not operating and he had to rewire a damper on
one occasion. Grillo later testified that the only problem
he encountered on the job was faulty wiring. Yet, it is
clear that McVeigh's work record on this installation job
for a month and a half, from December 7, 1982, to Janu-
ary 24, 1983, was deemed sufficiently satisfactory by
Jones to warrant his recall to the same job for 3 days in
February before his final layoff. And no conversation
was had with McVeigh then or later holding him respon-
sible for defects on the Navy housing job. Grillo also
agreed that a punch list could include items other than
defects, such as insulation, which had not been previous-
ly installed because the ducts or pipes had to be tested,
and labeling.
McVeigh, who had multiple skills and experience, was
never considered for, or offered, the South Carolina
work, which required some welding, and he was appar-
ently replaced by a newly hired employee. Based on his
strong union advocacy, and the series of threats which
Jones made to discharge McVeigh and the utter con-
tempt with which Jones held Local 305 and those close-
ly associated with it, specifically McVeigh, the General
Counsel has made a strong prima facie showing that
Jones was motivated by McVeigh's union advocacy
when he let him go in January and February 1983. This
showing has not been overcome by any evidence of al-
leged shortcomings which Respondent offered during the
course of the hearing.
12. On July 15, 1983, Alberson was working on the
building 29 job at the Navy Submarine Base, the power-
house, along with Keith Harris. Jones came in early in
the morning and told the employees to pack up all the
equipment, load it on the truck, and bring it back to the
shop. This procedure took 4 to 5 hours. Alberson then
was assigned some special work in the shop by Jones.
An hour before quitting time Jones told Alberson he was
going to have to lay him off. Jones said, "Why don't you
pack up your tools now and come to the office and I
will give you your money." He then added, "As a matter
of fact, I will pay you for the whole day. I will pay for
one hour extra because you have done such a fine job for
me." At 4:30 p.m., the regular quitting time, Jones paid
Alberson off, including the additional hour's pay, they
shook hands, and Alberson left.
i S The document offered in evidence by Respondent was properly re-
jected because it failed to identify the employee responsible for the al-
leged defects and Respondent failed to produce underlying documenta-
tion which might have shown this; it was a copy which was partly illegi-
ble and admittedly was received subsequent to McVeigh's final layoff so
was not a factor in Respondent 's decision
According to Alberson, and not disputed by Jones,
there was about 3 more weeks' worth of work left at the
jobsite. Alberson was a journeyman and certified welder,
steamfitter, and rigger. He was aware that a welder had
been hired a few weeks before he was let go. Jones gave
his name as Kurt Nowak, hired on July 10, 1983, and
still employed at the time of the hearing. Another
welder/pipefitter, Robert Krinjack, had been hired in
June 1983. Alberson testified that the new welder was
working on a new construction job at another building at
the submarine base. John Wysocki testified credibly and
without contradiction that after July 15, 1983, he saw
Nowak welding at the powerhouse on the submarine
base on a couple of occasions on the very job that Alber-
son had been working on prior to his layoff.
According to Jones, Alberson was laid off in mid-July
because the project he was on was substantially complet-
ed. Jones agreed with Alberson's estimate that several
more weeks remained on the building 29 job to which
Alberson had been assigned. However, as a 10-day prior
notification had to be given for utility shut off to permit
cutting into existing lines and certain equipment to be
furnished by the general contractor necessary to make
final connections was not then available, it was not prac-
tical at the time to proceed on that project. As will be
discussed, infra, Keith Harris, the other employee on this
project, was reassigned to another job about the same
time Alberson was laid off. However, Harris was an ap-
prentice plumber, not a welder, and Wysocki's testimony
makes seriously questionable Jones' testimonial assertions
about the close of this jobsite.
Alberson was the rank-and-file employee with the
longest service for Respondent when he was laid off on
July 15, 1983. He had started August 1981. He had been
discriminated against previously by having an assigned
company truck and credit cards withdrawn on Decem-
ber 3, 1982, by being sent home early on December 7, by
being denied a helper to assist on rigging heavy pipes on
December 9, and by being laid off for virtually the entire
day after reporting to work on December 16 and 17.
Jones did not dispute Alberson's testimony that on July
15, 1983, he complimented Alberson on the fine job he
had done for him.
While I credit Jones that work was slackening off by
mid-July 1983-in fact, no new employees were hired
after July, and only Scott Lambrecht, Christian Grillo,
both supervisors, and Nowak remained on Respondent's
payroll from September 1983 to the date of hearing-
Jones never addressed the implication raised by the Gen-
eral Counsel's questioning of both Alberson and Jones
why Nowak and Krinjack were retained over Alberson.
In particular, Jones did not show any reason a certified
welder was hired just 4 workdays before Alberson was
let go and assigned to the same worksite after Alberson's
separation. Surely, if Jones is credited, he had to be
aware on Monday, July 11, 1983, that only a week's
work remained on the building 29 job. Yet, a new em-
ployee was hired when already in his employ was one
experienced welder/rigger with 2 years' experience in his
business and with the skills and admitted talent to per-
form well on future projects. If more than I week's work
JONES PLUMBING CO.
was performed on the site after July 10 , 1983, as seems
likely, Nowak was retained to complete the welding on
the project and to become a regular full-time employee
as well.
The only logical explanation is that Jones believed he
had found an opportunity, after assuring himself of a re-
placement, to rid Respondent of a strong union employ-
ee, who had refused to quit in the face of provocative
conduct which had caused him financial loss. I conclude
that Alberson's layoff violated Section 8(a)(3) and (1) of
the Act and, further, that Respondent's claimed business
justification failed to substantiate that Alberson would
have been laid off on July 15, 1983, absent his union ac-
tivities.
By certified letter dated November 2, 1983, Jones
Plumbing requested Alberson to advise the earliest he
could report for work. By letter dated November 8,
1983, addressed to B. L. Jones, Jones Plumbing, Alber-
son acknowledged receipt of the earlier letter and ex-
pressed his interest in retuning to work. Alberson next
sought more details on the job opportunity, including,
inter alia, the duration of the job, hours per week, and
hourly wage scale and other benefits , including availabil-
ity of transportation. He asked for a reply by return mail.
The next day, according to Alberson, but more likely a
week or more later, Alberson received a letter from
Jones, dated November 14, 1983, stating: "Your apparent
unwillingness to reply to my telephone call of November
1, 1983,14 and my certified letter of November 2, 1983,
leads me to the conclusion that you no longer desire em-
ployment with Jones Plumbing Co., Inc."
Respondent's initial letter does not constitute an offer
of a return to work. It does not offer any job on any par-
ticular date. Alberson is asked to advise the earliest date
he can report to work. What is supposed to follow the
employee 's advise is not made clear and is completely
open to conjecture. Even if it be construed as a form of
an offer, the Board has often observed, an offer of rein-
statement must be "specific, unequivocal, and uncondi-
tional' in order to toll the backpay period, L. A. Water
Treatment, 263 NLRB 244, 246 (1982). Respondent's
letter fails on all three of these counts. Nonetheless, Al-
berson responded timely, and sought to have Jones clari-
fy exactly what he was proposing. It is clear from Jones'
November 14 letter that either Respondent had not yet
received Alberson's November 8 reply or that it chose to
ignore it. In either case, Alberson's request demanded a
considered response and it never received one.
Alberson testified that among his, concerns in making
his inquiry were the loss of the truck and quite a lot of
money during his unemployment. He wanted to know if
he would be receiving the terms and conditions of em-
ployment he originally started with before he was "pro-
gressively demoted." (1'r. 45.) He would not return
under the terms he had when he was laid off in July.
Before that, he had both a company truck and credit
cards removed, and had been sent home from work on
four occasions. Each of these was an act of discrimina-
tion. Jones had also commented adversely on a belief in
Alberson's attendance at a union meeting. Under these
14 There was no testimony about this asserted call.
449
circumstances, without any assurance from Jones that he
would have his preexisting benefits restored under the
Act, Respondent's initial, equivocal request, until it was
clarified as a return to a position free from the coercive
efforts of Respondent's unfair labor practices, could not
constitute a valid offer of reinstatement . Cf. Brenal Elec-
tric Inc., 271 NLRB 1557 (1984).
Aside from the foregoing, it is apparent that Respond-
ent seized on its ambiguous first letter and its belief,
never established on the record but asserted as fact in its
brief, that Alberson was "then working at a more lucra-
tive union job at the Millstone Power Plant," to make
the self-serving declaration in its second letter that Al-
berson no longer desired employment and he was ac-
cordingly removed from any further consideration for
recall. Respondent's strategy and its position here shield
its continuing unlawful motive toward Alberson and
cannot serve to cut off his rights to an offer of reinstate-
ment and backpay.
13. Keith Harris, hired June 7, 1982, another of the
original group of prounion employees, who also signed a
union card and attended the union meetings, was an ap-
prentice plumber working with John Alberson at the
powerhouse, building 29, at the submarine base when Al-
berson was laid off on July 15, 1983. Harris was reas-
signed to the ARDM Building and worked there with
Grillo, Wysocki, and another new employee, Bill Maruso
or Marzusso.
On July 21, 1983, on the way back to the shop at the
end of the day, Grillo handed him an envelope and said
he did not know what was in it , but he had to lay him
off at that time. Inside the envelope were a paycheck
and a slip laying him off for lack of work.
Jones testified that the power plant project was practi-
cally finished and he was looking forward to a reduction
in force. At the time he laid off Alberson, he sent Harris
to give Wysocki a hand on the building 29 job but it was
not practical to keep him there and he was subsequently
laid off.
Harris was laid off at a time when two other appren-
tices, Maruso or Marzusso and Thomas Lambrecht, hired
9 to 13 months after him, in March and July 1983, re-
spectively, were retained on Respondent's payroll. In
fact, Lambrecht, Scott's brother, was hired just 2 weeks
before Harris' layoff. In doing so, Jones violated his own
policy of taking seniority into account in determining the
retention of apprentices. Jones offered rio explanation for
retaining these two less senior apprentices. Furthermore,
Harris had been sent to the South Carolina job with air-
fare and having expenses there paid by Respondent, for 1
week in March 1983. At the time, seven other employees
were working on that job. Thus, Jones considered Harris
sufficiently skilled to work at a site which he could not
personally oversee. At no time did Jones assert he had
any problems with Harris' work performance. Respond-
ent thus made no serious effort to overcome the General
Counsel's prima facie case. I conclude that, just as with
Paul Baker, among other discriminatees, Respondent,
without a legitimate business reason, and contrary to
normal company policy, discriminatorily terminated
Harris.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated November 15, 1983, Jones wrote
Harris: "We expect to have an opening for an apprentice
with your qualifications within two weeks. Please advise
this office by November 22, 1983, if you would be inter-
ested in accepting employment with Jones Plumbing Co.,
Inc." Harris did not reply. This letter suffers from the
same infirmities as Jones' letter earlier the same month to
Alberson. It is not an offer of reinstatement as claimed
by Respondent. It fails to specify a date or an available
job. It leaves ambiguous the most necessary elements of
a job offer. Jones' "expectation" that he would have an
opening 2 weeks hence is hardly an unconditional proffer
to Harris of the same or substantially equivalent employ-
ment he enjoyed prior to the discrimination practiced
against him, particularly in light of his unlawful layoff.
See Standard Aggregate Corp., 213 NLRB 154 (1974); In-
formation Control Corp., 196 NLRB 504, 508 (1972).
Jones' letter was invalid as an offer of reinstatement and
thus did not serve to toll the award of backpay or rein-
statement rights Respondent owed Harris.
14. Mark McGuire was an apprentice plumber/-
pipefitter first employed by Respondent in late 1981. He
had signed a union card, attended the fall 1982 organiza-
tional meetings, and voted in the election. It will be re-
called that, in the course of a coercive conversation held
in December 1982, Jones told McGuire that as senior ap-
prentice he would be the last to go under a plan to cut
the size of the shop in half. On that occasion Jones also
told McGuire everyone involved in the Company had
spoken of him highly. McGuire was also told at the time
that he would need a doctor's certificate on a future ab-
sence for illness. He had been absent a number of times
in the fall of 1982 because of problems with his car and
the death of his grandmother. That requirement for a
doctor's note was held discriminatory.
Then, early in the week of May 1983, McGuire testi-
fied he had missed another day to attend the funeral of
his wife's grandmother. Early in the morning of Friday,
May 13, McGuire received a telephone call at home
from John Wysocki who told him he had talked to Ben
previously, and told McGuire not to come in to work
that day, but to go to the office at 2 p.m. to pick up his
check. Wednesday, not Friday, was the regular payday.
Later that day, at the office, he received from Eva Jones
his pay along with a slip laying him off for excessive ab-
senteeism. Ben Jones refused to see him or speak to him.
During his cross-examination, McGuire admitted
having been absent 6 to 8 times in the specific period of
time of a month or 2 months preceding his layoff. Other
than that, there were times he was sick or otherwise
unable to come to work. McGuire also acknowledged
having been relayed messages by working Foreman Wy-
socki about his absences during the spring of 1983 after
Jones had come on the job the days he was out and com-
mented about them. At the time McGuire received word
relayed from Jones that he had better be careful about
being absent. McGuire also admitted that his brother,
Paul McGuire, when he was superintendent, had spoken
to him once or twice about his absences. Although
unable to recall having received the letter, Respondent
produced a written warning from Jones to McGuire
dated June 16, 1982, prior to any union activity, for-
warded to his then address, described in the first para-
graph as a first warning notice regarding unauthorized
absences from work. The letter went on to note that if
this should continue he would receive a second warning
notice and, if not abated thereafter, it would result in ter-
mination of employment. The letter closed by describing
the proper procedure for notifying the Company in case
of requiring time off from work or if McGuire was ill.
John Wysocki, who testified for the General Counsel
on various allegations in the complaint , was questioned
about McGuire's habitual absenteeism during his cross-
examination. Wysocki recalled that in the spring of 1983
he told McGuire that he better shape up, and not miss
any time. As Wysocki explained, he was his only helper,
and without McGuire on the job it made it very difficult
for him to operate. McGuire had a number of absences
at the time and was obviously sick a lot.
Jones testified that he terminated McGuire for exces-
sive absenteeism. He had been in business for 32 years,
and McGuire held the record for being absent without
permission. He had constantly warned McGuire as had
his brother, Wysocki, and Alberson, to desist in this
practice, yet he persisted. In Jones' view, McGuire's per-
formance was hurting the Company and creating a bad
example for the other employees. There were several oc-
casions when McGuire was assigned to a job out of
town, such as Newport or New Haven, to which he was
to ride with another employee. McGuire would fail to
show up at 6 a.m. leaving the other employee with no
one to help him , causing a loss of time, or payment to
the remaining employee for inefficient work.
McGuire's absences in the period before his layoff had
been on either a Monday or Friday. On the week prior,
in Wysocki's absence on vacation, McGuire was being
paid at a journeyman's rate under the Davis-Bacon Act.
He had called in to say he would be attending his wife's
grandmother's funeral on Monday-an excusable ab-
sence. Then on Tuesday, the Company received another
call that McGuire would not be in because he had to
drive a relative somewhere. It was at this time that Jones
decided that McGuire's continued employment was not
good for the Company.
McGuire did not seek to-rebut these events leading up
to his dismissal . From his own admissions , as well as
Wysocki's statement, a picture is presented of an employ-
ee whose record of absenteeism was a matter troubling
Jones even before the union drive commenced and con-
tinued to the point in the spring of 1983 when it was
causing serious inefficiencies in work production. I there-
fore conclude that the General Counsel's prima facie
showing, supported by the evidence of McGuire having
been the subject of Jones' diatribe against the Union and
his prounion work force in December 1982, has been re-
butted by the evidence of McGuire's continued habitual
absenteeism leading directly to his eventual termination
which would have resulted even in the absence of his
union activities. I will recommend dismissal of this alle-
gation.
JONES PLUMBING CO.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating its employees about their member-
ship in or activities on behalf of or sympathies for United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the U.S. and
Canada, Local #305, AFL-CIO; creating the impression
among its employees that their union activities were
under surveillance; informing its employees of the futility
of unionization; threatening its employees with layoffs,
loss of employment, and other unspecified reprisals, and
disparaging the Union to its employees in order to dis-
courage them from selecting the Union as their collec-
tive- bargaining representative, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By temporarily laying off, revoking the use of com-
pany provided vehicles and credit cards, transferring to a
lower paying job, imposing more onerous and more
stringent working conditions, and by laying off perma-
nently and discharging without any intention of recalling
its employees, because of their activities on behalf of the
Union and in order to discourage their union member-
ship, activities, and sympathies, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
6. Respondent has not engaged in any unfair labor
practices not specifically found herein; specifically, Re-
spondent has not violated the Act by laying off or dis-
charging Frederick Bruning about January 17, 1983, and
Mark McGuire about May 13, 1983.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. Af-
firmative actions shall include the posting of the usual in-
formation notice to employees , the restoration of the
benefits previously enjoyed by the employees which
were unlawfully removed , the removal of company
records of the unlawful separations from employment of
the five named discriminatees , notifications to them that
this has been done and that the evidence of the unlawful
separations will not be used against them , see Sterling
Sugars, 261 NLRB 472 ( 1982), offers of reinstatement to
the five named employees to their former jobs or, if no
longer available, to substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges, and making them whole for any losses of
earnings or other monetary losses they may have suf-
fered by reason of Respondent's discrimination against
them, computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest computed
451
in the manner set forth in Florida Steel Corp., 231 NLRB
651 (1977); see generally Isis Plumbing Co., 138 NLRB
716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edis
ORDER
The Respondent, Jones Plumbing Co., Inc., Groton
Piping, Inc.; and Groton Piping, Inc. d/b/a Instant
Plumbing Company, Gales Ferry, Connecticut, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their membership
in or activities on behalf of or sympathies for United As-
sociation of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the U.S. and Canada,
Local #305, AFL-CIO, or any other labor organization;
creating the impression among its employees that their
union activities are under surveillance; informing its em-
ployees of the futility of unionization; threatening its em-
ployees with layoffs, loss of employment, and other un-
specified reprisals because of their union activities or if
they selected the Union as their collective-bargaining
representative, and disparaging the Union to its employ-
ees.
(b) Discouraging membership in, activities on behalf
of, or sympathies for United Association of Journeymen
and Apprentices of the Plumbing and Pipefittinglndustry
of the U.S. and Canada, Local #305, AFL-CIO, or any
other labor organization, by temporarily laying off, re-
voking the use of company provided vehicles and credit
cards, transferring to a lower paying job, imposing more
onerous working conditions, by refusing to provide em-
ployees with a helper; imposing more stringent working
conditions by requiring the documentation of medical ill-
ness; and by laying off permanently without any inten-
tion of recalling and discharging, or in any other manner
discriminating against its employees in regard to their
hire or tenure of employment or any term or condition
of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Gerard Thuotte, John McVeigh, Paul Baker,
John Alberson, and Keith Harris immediate and full rein-
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and make each of them
whole for any loss of earnings and other benefits they
may have suffered by reason of the discrimination prac-
ticed against them in the manner set forth in the section
of this decision entitled "The Remedy."
15 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Restore to John McVeigh and John Alberson, and
to any other employees to whom they were provided on
a regular basis, the use by them of company vehicles and
credit cards.
(c) Remove from its records any reference to the dis-
charges or terminations of Keith Harris, John Alberson,
Gerard Thuotte, Paul Baker, or John McVeigh, and
notify them that this has been done, and the evidence of
the unlawful discharge or termination will not be used
against them.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of
this Order.
(e) Post at its Gales Ferry, Connecticut place of busi-
ness copies of the attached notice marked "Appendix."16
Copies of the notice, on forms provided by the officer-in-
charge for Subregion 39, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the officer-in-charge within 20 days from the
date of this Order what steps the Respondent has taken
to comply.
IT IS FURTHER ORDERED that the amended consolidat-
ed complaint be dismissed insofar as it alleges Respond-
ent violated the Act by laying off Frederick Bruning
about January 17, 1983, and Mark McGuire about May
13, 1983.
16 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees about mem-
bership in or activities on behalf of or sympathies for
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the U.S. and
Canada, Local #305, AFL-CIO, or any other labor or-
ganization ; create an impression among our employees
that their union activities are under surveillance; inform
our employees of the futility of unionization; threaten
our employees with layoffs, loss of employment, and
other unspecified reprisals; or disparage the Union to our
employees in order to discourage them from selecting
the Union as their collective-bargaining representative.
WE WILL NOT discourage membership in, activities on
behalf of, or sympathies for United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting
Industry of the U.S. and Canada, Local #305, AFL-
CIO, or any other labor organization, by temporarily
laying off, revoking the use of company provided vehi-
cles and credit cards, transferring to a lower paying job,
imposing more onerous working conditions by refusing
to provide employees with a helper, imposing more strin-
gent working conditions by requiring the documentation
of medical illness, laying off permanently without any in-
tention of recalling and discharging, or in any other
manner discriminating against our employees in regard to
their hire or tenure of employment or any term or condi-
tion of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed in Section 7 of the Act.
WE WILL offer Gerard Thuotte, John McVeigh, Paul
Baker, John Alberson, and Keith Harris immediate and
full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make each of
them whole for any loss of earnings and other benefits
they may have suffered by reason of our discrimination
against them, with interest.
WE WILL restore to John McVeigh and John Alber-
son, and to any other employees to whom we provided
them on a regular basis, the use by them of our vehicles
and credit cards.
WE WILL remove from our files any references to the
unlawful discharges or terminations of the five above-
named employees and notify them in writing that this
has been done and that their discharge or termination
will not be used against them in any way.
JONES - PLUMBING Co., INC.; GROTON
PIPING, INC.; AND GROTON PIPING, INC.
D/B/A INSTANT PLUMBING COMPANY