CCA Civil-Halmar International, LLC

National Labor Relations Board - Administrative Judge Opinions

Nov 10, 2011

02-CA-040207 (N.L.R.B. Nov. 10, 2011)

JD(NY)–42–11
Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CCA CIVIL HALMAR INTERNATIONAL, INC.
and Case No. 2-CA-40207
BUILDING MATERIAL TEAMSTERS LOCAL 282,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Jeff Beerman, Esq. and Nicole Buffalano, Esq.,
New York, New York, for the Acting General Counsel
Thomas P. Piekara, Esq. and Ian H. Hlawati, Esq.,
Jackson Lewis, LLP, for the Respondent
Joseph Vitale, Esq., Cohen, Weiss & Simon, LLP,
for the Charging Party
DECISION
Statement of the Case
LAUREN ESPOSITO, Administrative Law Judge. Based upon a charge filed on
November 10, 2010, by Building Material Teamsters Local 282, International Brotherhood of
Teamsters (“Local 282” or the “Charging Party”), a Complaint and Notice of Hearing issued on
April 29, 2011. The Complaint alleges that CCA Civil Halmar International, Inc. (“Halmar” or
“Respondent”) violated Sections 8(a)(1) and (3) of the Act by discharging Mike Verni on July 19,
2010, and again on August 19, 2010, in retaliation for his union activities. Respondent filed an
Answer denying the material allegations of the Complaint. This case was tried before me on
August 16, 17 and 18, 2011, in New York, New York.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel (the “General Counsel”) and
Respondent I make the following
Findings of Fact
I. Jurisdiction
Respondent is a corporation with a place of business located in the Bronx, New York,
and is engaged in the business of managing commercial construction projects. Annually,
Respondent in the course and conduct of its business operations purchases and receives at
various construction sites in New York goods valued in excess of $50,000 directly from
suppliers outside the State of New York. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent admits and I find that Local 282 is a labor organization within the meaning
of Section 2(5) of the Act.
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II. Alleged Unfair Labor Practices
A. Background
Respondent manages heavy and highway construction projects in the New York
metropolitan area. Since approximately May 2009, Respondent has been engaged in a project
renovating the Alexander Hamilton Bridge, which involves thirty supervisors and between 160
and 225 building trades workers. All of the employees on the project are represented by various
building trades labor unions, with Local 282 representing the drivers employed by Respondent.
As many as 20 drivers work on two shifts, as needed according to the demands of the work at
the time.
At all times material to the events at issue here, Jesse Jameson was Respondent’s
Projective Executive or Project Manager for the Alexander Hamilton Bridge work. Jameson is
responsible for running the entire project, including dealing with subcontractors, government
agencies and all personnel issues. Lee Trogisch is Respondent’s Equipment Manager, and is
responsible for repairs, purchasing, and oversight of trucking, operating engineers, and
mechanics on all of Respondent’s projects. Respondent admits and I find that Jameson and
Trogisch are supervisors within the meaning of Section 2(11) of the Act, and are agents acting
on Respondent’s behalf.
Several of Local 282’s current officers testified at the hearing in this matter. Thomas
Gesualdi has been Local 282’s President for approximately two years. Louis Bisignano has
been Local 282’s Secretary-Treasurer since January 2008. Anthony D’Aquila is the Union’s
Manhattan business agent and Recording Secretary. Robert Machado is a federally appointed
investigations officer, and investigates allegations regarding Local 282; Machado did not testify
at the hearing.
The collective bargaining agreement between Respondent and Local 282 provides for a
twenty-day probationary period. Under Section 30 of the contract, during the first ten days of
the probationary period, a new employee has no recourse to the grievance procedure. During
the second ten days the employee may be discharged for just cause, as defined in the
contract,1 without recourse to the grievance procedure. Section 42 of the contract provides for a
Drug Testing and Employee Assisting Program. Section 42 permits the employer to suspend an
employee and refer them to the Program for immediate testing where the employer “has
reasonable cause to believe that an Employee is a drug abuser, substance abuser, or alcohol
abuser.”
B. Mike Verni’s Internal Union Activities and Initial Hiring at the Alexander Hamilton Bridge
Jobsite, Respondent’s Shaping and Hiring Policies
Verni has been a driver in the construction industry and a member of Local 282 for over
twenty years. In November 2009, Local 282 held an election for three Business Agent/Trustee
offices, and for Vice President. Verni ran for Vice President against incumbent Anthony Pirozzi.
The candidates for Business Agent/Trustee on Pirozzi’s slate were incumbents Michael
O’Toole, Dominic Marrocco, and Paul Luddine. Pirozzi’s slate won this election.

1 Section 30 defines “just cause” as “unexcused absences, tardiness, unsafe driving, or
refusing to take direction from supervisory personnel.”
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Jameson testified that he learned that Verni had run for office against the incumbent
slate of candidates during conversations with Luddine in July and August. 2 Jameson testified
that Luddine did not ask him to discharge Verni during these conversations.3
Trogisch has the primary responsibility for administration of the shaping and seniority
lists for drivers at the Alexander Hamilton Bridge jobsite. Employee positions on the seniority
list are determined by hire date and shaping for work. There are three Local 282 shop stewards
for the Alexander Hamilton Bridge jobsite – two onsite stewards and one barn steward. When
Verni began working for Respondent, the barn steward was Gary Werbitski. Trogisch testified
that Respondent’s policy required the barn steward to consult with him and provide him with a
new employee’s driver’s license prior to putting the new driver on the seniority list for work.
Trogisch testified, however, that Werbitski often called drivers in and placed them on the list
without doing so, and that Trogisch “usually” received a new driver’s information only after they
were already working. Trogisch testified that about six months prior to August 2010, he realized
that Werbitski was not providing him with a copy of the shape list every day, and that Werbitski
had placed a driver on the seniority list without consulting him. Trogisch testified that he had
several discussions with Werbitski, telling him that Trogisch had to be consulted before putting
drivers on the shape list or the work list, and that he also discussed the issue with Luddine.
Nevertheless, a few months later, Werbitski again put another driver on the shape or seniority
list without Trogisch’s authorization, prompting Trogisch to again complain to Luddine. Trogish
testified that prior to July 19, none of the drivers placed on the seniority lists in violation of
Respondent’s hiring policies were discharged.
Verni testified that he began working for Respondent at the Alexander Hamilton Bridge
site on July 12. Verni went to the jobsite and met with Werbitski. Verni told Werbitski he was
looking for work, and Werbitski said that there was no work on the day shift, but that he would
speak to the superintendent and call Verni if there was night shift work available. Early in the
evening, Werbitski called Verni, and told him there was night shift work available. Verni
returned to the jobsite and met with Carlos, the night superintendent, as instructed by Werbitski.
Verni gave Carlos his driver’s license and other documentation, and completed paperwork.
Verni then began work. Verni shaped and worked the night shift for the rest of the week.
C. The July 19 Discharge of Verni
Verni testified that he remained on the jobsite the morning of July 19 after his shift had
ended, because Werbitski had informed him that there might be day shift work available. After
Verni was told there was no day shift work, he observed Luddine park his car into the parking lot
and walk toward the office trailers. Later that day, Verni spoke to Werbitski over the phone.
Verni testified that he asked Werbitski whether there would be night shift work available, and
Werbitski said no. Verni then asked Werbitski whether he had seen Luddine at the jobsite.
Werbitski said that within an hour and a half after Luddine had been at the job site, management
gave Werbitski a termination letter for Verni. Werbitski read the termination letter to Verni over
the phone, and said that it was signed by Jameson. The termination letter, dated July 19,
states, “Please let this letter confirm that after a review of your performance we have decided to
decline you employment as a driver for CCA Civil/Halmar International.”
Jameson and Trogisch contended in their testimony that Trogisch made the decision to
discharge Verni and Chris Paci, another driver, after learning that Werbitski had hired Verni and

2 All subsequent dates are in 2010 unless otherwise indicated.
3 Luddine retired subsequent to the events at issue here, and did not testify at the hearing.
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Paci without consulting him. Trogisch testified that he drafted the letter quoted above for
Jameson’s signature, and an identical letter to Paci, also dated July 19.4 Jameson testified that
there were no problems with Verni’s work performance, although his termination letter states
that Respondent discharged him for that reason.
After speaking to Werbitski, Verni called Thomas Cicillini and discussed the situation
with him. Cicillini has been a Local 282 member for sixteen years, and has worked for both the
Respondent and Tutor Perini Construction Corp., where he met Jameson. Cicillini offered to
accompany Verni to the jobsite to speak with Jameson the next morning. Verni also called
Gesualdi, told Gesualdi that he had been discharged soon after Luddine had been spotted at
the jobsite, and described his conversation with Werbitski. Gesualdi said that he would look into
the matter and get back to him. Verni then called investigations officer Machado and reported
that Respondent had discharged him.5 Gesualdi testified that he also reported Verni’s
allegation that Luddine had sought to have him discharged to Machado.
Cicillini testified that after speaking with Verni he called Jameson and discussed the
situation with him. Jameson told Cicillini that he would get back to him after speaking with
Respondent’s owners, but he did not do so.
On the morning of July 21, Verni and Cicillini went to the jobsite and spoke to Jameson.
Verni testified that after Cicillini introduced him, Jameson told him that he was sorry, but
Luddine was a union delegate, and Verni had run against him in the election. Cicillini then said
that Verni had run against Pirozzi, not Luddine. Jameson replied that there was nothing he
could do, because he had to “keep peace with the Union.” Jameson then said that he would
speak with his superiors and see what he could do. Cicillini confirmed that Jameson referred to
Verni as, “the guy who ran against Paul Luddine in the election,” and Cicillini responded that
Jameson had made a mistake. Cicillini testified that before he left to go to work Verni also told
Jameson that he had nothing to do with Luddine. Cicillini testified that he was present for
approximately fifteen to twenty minutes of the conversation between Verni and Jameson.
Jameson admitted during his testimony that he brought up the election and Luddine
during the conversation with Verni and Cicillini at the jobsite. Jameson testified that he did so
because he was particularly busy that morning due to a staff meeting with the Department of
Transportation. Jameson testified that he mentioned Luddine and the election “to squash the
conversation as soon as possible.”
Jameson testified that during the first week of August, Gesualdi called him and told him
that he was investigating Verni’s discharge. Gesualdi asked Jameson why he discharged Verni,
and whether Verni had been discharged because he ran in the Union election. Jameson
testified that he told Gesualdi that Verni had been terminated for work performance issues, as
stated in the discharge letter. Gesualdi testified that he could not recall having had this
conversation.

4 Verni testified that Paci actively campaigned for the incumbent slate of candidates that
Verni ran against in the 2009 election.
5 No grievance was filed regarding Verni’s July 19 discharge. Verni testified that he felt that
filing a grievance was unnecessary because he had reported the issue to Machado, who was
investigating.
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D. The Reinstatement and August 19 Discharge of Verni
On August 10, Respondent and Local 282 discussed Verni’s discharge and issues
involving hiring for the Alexander Hamilton Bridge project at a labor-management claims panel
hearing. Gesualdi testified that after the parties met on an unrelated matter, he suggested to
Jameson and Trogisch that they discuss Verni’s discharge. D’Aquila was also present.
Gesualdi and D’Aquila testified that they asked Jameson and Trogisch why Verni and Paci had
been terminated, and Jameson and Trogisch responded that they did not have to provide a
reason, because the two employees were still within their probationary period. D’Aquila then
proposed that Verni be reinstated, and Werbitski be moved to one of Respondent’s jobsites in
Manhattan. Jameson and Trogisch ultimately agreed.
Jameson and Trogisch testified that D’Aqulia and Gesualdi said that they wanted to get
the issue involving Verni resolved before Machado returned from vacation. Jameson and
D’Aquila both testified that the agreement reached included the reinstatement of both Verni and
Paci at the Alexander Hamilton Bridge jobsite, in exchange for the transfer of Werbitski to
Manhattan.6 Gesualdi and D’Aquila testified that they could not recall any discussion of
Machado.
Jameson testified that after Werbitski was transferred to the Manhattan jobsite, Trogisch
maintained the seniority list, and the onsite shop steward brought potential new employees to
meet Trogisch after interviewing them, prior to their beginning work.
Verni returned to work at the Alexander Hamilton Bridge jobsite on August 11, after
Gesualdi informed him that he had been reinstated, and worked the night shift. On August 12,
Verni shaped the day shift, but there was no work available. Later that day, Werbitski called
Verni and said that there was no night shift work available. Werbitski also reported that he had
been directed to assign a “casual” employee to work on the night shift, even though the casual
employee had not been shaping to maintain the seniority necessary to work that shift. Verni
worked the night shift on August 13, and shaped on August 17 but was not assigned work. On
August 18, Verni shaped the morning shift and did not work. While at the site, he noticed that
an extra casual was assigned work for the shift, even though the extra casual had not been
shaping. Verni then visited the Union hall and filed a grievance (Claim No. 4815) alleging that
Respondent had assigned work to employees out of seniority order, in violation of Sections 10
and 11 of the collective bargaining agreement.
Bisignano’s office at Local 282 faxed Verni’s seniority grievance (Claim No. 4815) to
Respondent’s office on August 18 at approximately 2:30 p.m. Jameson admitted that he
received a copy of Verni’s grievance prior to making the decision to discharge him a second
time on August 19.
Jameson testified that since July 17 to 20, he had been under the impression that Verni
was involved in some sort of drug use, based upon conversations with safety manager Jim
Ferer, who had also worked with Jameson at Tutor Perini. However, Jameson testified that he
felt constrained from acting on this information because of obligations under the Health
Insurance Portability and Accountability Act (“HIPAA”). Jameson testified that on August 19,
during a conversation with Respondent’s counsel Art Rigby regarding pending regulatory

6 D’Aquila testified that at the time of this meeting he was aware of several issues between
Werbitski and Respondent’s managers, including an ongoing disagreement about shaping or
hiring procedures.
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matters, he mentioned “Teamster problems.” Jameson testified that Rigby responded that he
was familiar with Verni from his work at Tutor Perini, and that while employed at Tutor Perini
Verni had committed fraud in connection with a drug test.7 Jameson testified that after receiving
this information from Rigby, he no longer considered himself to be restricted under HIPAA, as
the matter involved fraud, as opposed to a substance abuse issue. Rigby confirmed that he and
Jameson discussed Verni’s misconduct while at Tutor Perini during a telephone conversation on
August 19.
Jameson testified that he after his conversation with Rigby he decided to discharge
Verni if possible. Jameson testified that after confirming that Verni was still within his
probationary period, he prepared a letter to Gesualdi discharging Verni.
Verni shaped for work on August 19 and 20, but was not assigned a shift. When he
shaped for work on August 23, Werbitski read him a letter from Respondent stating that he had
been terminated while on his probationary period. Verni called Gesualdi and said that he had
been fired again, and Gesualdi said that he would tell D’Aquila and Luddine to meet with
Respondent’s management. Verni stated that D’Aquila called him later, telling him that
management had been uncooperative, and that a panel hearing would be arranged to address
his discharge.
D’Aquila testified that on August 23, after learning that Verni had been discharged again,
he called Trogisch and asked him why Verni had been discharged, given the parties’ agreement
that he return to work. Trogisch stated that the parties did have an agreement, until Verni filed a
grievance. D’Aquila responded that Respondent could not discharge an employee for filing a
grievance, and that grievances had to be addressed through the prescribed contractual
procedure. D’Aquila reiterated that the company had breached the agreement reached by the
parties at the August 10 panel hearing, and Trogisch responded that Verni’s discharge was
“above his pay grade.” Trogisch testified that he could not recall telling D’Aquila that Verni was
discharged because he had filed a grievance.
On August 25, Local 282 filed a grievance (Claim No. 4823) contesting Verni’s August
19 termination. On September 7, Verni’s discharge and seniority grievances were addressed at
a panel hearing, where Gesualdi, Bisignano, Pirozzi, and Marrocco represented the Union, and
Jameson was present for Respondent. Gesualdi and Bisignano testified that the Union
contended that Respondent had violated the contract by calling employees in for work over the
phone while Verni was physically present, shaping at the jobsite.8 The Union also contended
that the onsite shop steward was working on a truck, work which should have been performed
by a worker on the shape list.9 Gesualdi then asked why Verni had been discharged a second
time, when there had been no disciplinary or work performance incidents after his August 11
reinstatement. Jameson responded that he did not have to give the Union an answer under the
contract, stating that the contract, “says for any reason.” Gesualdi and Bisignano said that
Respondent would violate the law by discharging Verni in retaliation for union activity or filing a
grievance, even during the probationary period, and noted that Verni had been discharged the
morning after the Union had faxed the seniority grievance to Respondent’s office. Jameson

7 Verni testified that in 2002 he provided clean urine to a childhood friend who was
concerned that he would test positive for marijuana. He was discharged from Tutor Perini at
that time as a result.
8 Jameson did not testify regarding the September 7 panel hearing.
9 According to Jameson, such seniority issues had been an ongoing point of contention
between Respondent and Local 282.
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asked Gesualdi and Bisignano, “show me where it says that in the contract,” and the discussion
continued in this vein for a while. Gesualdi and Bisignano testified that Jameson never raised
complaints regarding the 2002 drug testing incident or Verni’s work performance during this
meeting.
Respondent and Local 282 were unable to resolve the grievances regarding assignment
of work and Verni’s August 19 discharge, and on November 5, an arbitration hearing took place.
On November 18, arbitrator Stanley Aiges issued a decision finding that as of August 19, Verni
was a probationary employee, in that he had not worked for Respondent for more than ten days.
Arbitrator Aiges found that as a result, Verni was not entitled to invoke the grievance and
arbitration procedure in order to contest his discharge.10
III. Analysis and Conclusions
A. General Principles
Under Section 8(a)(3) of the Act, an employer may not discriminate with regard to the
hire, tenure, or any term or condition of employment in order to encourage or discourage
membership in a labor organization. In order to determine whether an employee’s discharge
violated the Act in this manner, the Board applies the analysis articulated in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied, 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). To establish an
unlawful discharge under Wright Line, the General Counsel must first prove, by a
preponderance of the evidence, that the employee’s union sympathies or activities were a
substantial or motivating factor in the employer’s decision to take action against them. Manno
Electric, Inc., 321 NLRB 278, 280 (1996). The General Counsel makes a showing of
discriminatory motivation by proving the employee’s union support or activity, employer
knowledge of that activity, and animus against the employee’s protected conduct. Naomi
Knitting Plant, 328 NLRB 1279, 1281 (1999). Proof of an employer's motive can be based upon
direct evidence or can be inferred from circumstantial evidence, based on the record as a
whole. Ronin Shipbuilding, 330 NLRB 464 (2000); Robert Orr/Sysco Food Services, 343 NLRB
1183 (2004).
If the General Counsel is successful, the burden of persuasion then shifts to the
employer to show that it would have taken the same action even in the absence of the
employee’s union support or activities. Wright Line, 251 at 1089; Septix Waste, Inc., 346 NLRB
494, 496 (2006); Williamette Industries, 341 NLRB 560, 563 (2004). Once the General Counsel
has met its initial burden under Wright Line, an employer does not satisfy its burden merely by
stating a legitimate reason for the action taken, but instead must persuade by a preponderance
of the credible evidence that it would have taken the same action in the absence of the
protected conduct. T&J Trucking Co., 316 NLRB 771 (1995); Manno Electric, Inc., 321 NLRB at
280 fn. 12 (1996).
B. The Preponderance of the Evidence Establishes that Respondent Discharged
Verni on July 19 in Retaliation for his Protected Activity
I find that the General Counsel has established a strong prima facie case that Verni was
discharged on July 19 in retaliation for his protected activity. The evidence establishes that

10 Arbitrator Aiges retained jurisdiction over the grievance regarding assignment of work for
further adjudication.
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Verni ran for Vice President of Local 282 in an election conducted in November 2009, which
constitutes protected activity under Section 7 of the Act. See, e.g., Sullivan, Long & Hagerty,
303 NLRB 1007, 1010-1012 (1991), enf’d, 976 F.2d 743 (11th Cir. 1992) (seeking internal union
office activity protected by Section 7); Barton Brands, 298 NLRB 976, 980 (1980). The
evidence also establishes that Respondent knew of Verni’s internal union activities, as Jameson
admitted that he learned from Luddine prior to Verni’s July 19 discharge that Verni had run
against Luddine’s slate of candidates.
The evidence further establishes that during a conversation with Verni and Cicillini on
the morning of July 21, Jameson informed them that Verni had been discharged “to keep peace
with the union” because Verni had opposed Luddine’s slate in the Local 282 election. Such an
explicit attribution of adverse employment action to protected activity on the part of higher-level
management evinces animus, and indicates that General Counsel has presented a particularly
strong prima facie case. See Vemco, Inc., 304 NLRB 911, 911-912 (1991), enf denied, 989
F.2d 1468 (6th Cir. 1993).
Respondent argues that Jameson’s admitted reference to Verni’s having opposed
Luddine should be disregarded as irrelevant to Respondent’s motivation for the July 19
discharge. Specifically, Jameson contends that he was caught off guard by the unexpected
appearance of Verni and Cicillini at a time when he was preoccupied with other matters, and
simply made whatever response that he believed would end the conversation most quickly.
Respondent therefore argues that his reference to Verni’s protected activity was in fact
unrelated to the actual motivation for his discharge. This argument, however, is not convincing.
The evidence indicates that Jameson’s comment did not in fact end the discussion, as Cicillini
testified that Verni and Jameson spoke for fifteen to twenty minutes before his leaving the
jobsite. Moreover, it is simply implausible that any supervisor or manager in such a situation
would believe that a comment explicitly attributing an adverse personnel action to internal union
political issues would quickly defuse the confrontation, as opposed to exacerbating it. Given
Jameson’s lengthy experience with the New York City area building trades, his assertion that he
assumed that tossing in a reference to internal union politics would terminate, as opposed to
escalate, the dispute is not credible.
Respondent also argues that Jameson’s overall responsibility for the Alexander Hamilton
Bridge project precluded his becoming involved in the discharge of any one particular employee,
and his July 21 comment was therefore an off-the-cuff remark made without knowledge of the
actual reasons for Verni’s discharge. However, Verni’s having run for union office was
important enough to have merited discussion between Jameson and Luddine earlier, as
Jameson eventually testified. Indeed, at the hearing Jameson initially denied having discussed
Verni with Luddine, and contended that he could not recall how he learned that Verni had run
against Luddine’s slate of candidates (Tr. 207-208). Only on cross-examination did he reveal
that Luddine himself had given him this information (Tr. 221). Jameson’s changing testimony on
this point undermines the credibility of his testimony regarding Respondent’s motivation for
Verni’s first discharge.
For the foregoing reasons, I reject the contention that Jameson’s comment to Verni and
Cicillini was irrelevant to Respondent’s reasons for Verni’s discharge. I find that Jameson’s
admitted reference to Verni’s internal union activities constitutes evidence of animus against
Verni’s protected activity, and evinces Respondent’s actual motivation for discharging Verni.11

11 Respondent argues that an adverse inference should be drawn based on General
Counsel’s failure to call Luddine and Werbitski as witnesses. However, Jameson admitted that
Continued
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In addition, the evidence establishes that Respondent has offered three different
reasons for Verni’s July 19 discharge. Jameson’s July 19 termination letter stated that Verni
had been discharged for work performance issues, and this was the reason that Jameson
admittedly provided to Gesualdi during a telephone conversation in early August. By contrast,
as discussed above, when Verni and Cicillini visited the jobsite on July 21, Jameson informed
them that Verni had been discharged because he ran against Luddine in the union election.
Then at the hearing in this matter, Respondent contended that it discharged Verni for neither of
these previously asserted reasons. Respondent instead claimed that Verni and another
employee, Chris Paci, were simultaneously discharged because Werbitski did not follow
company procedures when Verni and Paci were hired. Thus, Respondent ultimately took the
position that its own initially asserted reason for terminating Verni – work performance problems
– was in fact contrived, and that its second articulated reason – Verni’s internal union activity –
was asserted in error. Such shifting defenses are indicative of animus, and tend to establish
that Respondent’s asserted legitimate, non-discriminatory reason for the discharge is in fact
pretextual. See, e.g., Bebley Enterprises, 356 NLRB No. 64 at p. 8 (2010).
For all of the foregoing reasons, I find that General Counsel has established a strong
prima facie case that Respondent discharged Verni on July 19 in retaliation for his running for
union office. Vemco, 304 NLRB at 912. As a result, Respondent bears a “substantial” burden
in establishing that it would have discharged Verni regardless of his protected activities.
Vemco, Inc., 304 NLRB at 912; see also Acme Bus Corp., 357 NLRB No. 82 at p. 25-26 (2011);
Metro One Loss Prevention Services Group, 356 NLRB No. 20 at p. 15 (2010).
As discussed above, Respondent now asserts that Verni was discharged on July 19,
together with Paci, because Werbitski failed to comply with Respondent’s procedures for hiring
employees. Respondent did introduce evidence in support of this contention, which establishes
that Paci and Verni were both discharged on July 19. The evidence also establishes that
Respondent and Local 282 had an ongoing conflict regarding the hiring procedures at the
Alexander Hamilton Bridge jobsite. Ultimately Werbitski was transferred to a jobsite in
Manhattan and, according to Trogisch, the handling of seniority lists and driver interviews was
changed as a result.
Overall, however, the evidence adduced by Respondent in support of this reason for
Verni’s discharge is contradicted by other evidence in the record, and is insufficient to overcome
General Counsel’s strong prima facie case. For example, Trogisch testified that he became
aware that Werbitski was not complying with Respondent’s hiring procedures beginning in early
2010. In fact, Trogisch stated that Werbitski failed to provide him with any shape lists and
seniority lists prior to July. Trogisch also testified that at least two drivers were hired in an
inappropriate manner in February and March. Nevertheless, Trogisch admitted that despite this
history of non-compliance with hiring procedures, these two employees were not discharged,
_________________________
he made comments on July 21 which were, at the very least, substantially similar to those
attributed to him by Verni and Cicillini, and he testified that Luddine had informed him prior to
July 19 that Verni had run against the incumbent slate in the election. The finding of a violation
as alleged in the complaint does not require a determination that Luddine actually directed
Jameson to discharge Verni, as Respondent implies. The evidence need only demonstrate that
Respondent discharged Verni for an unlawful reason, including a belief that doing so would
“keep peace with the union” given Verni’s having run for union office against the incumbent
slate. As such, it does not appear that drawing an adverse inference based upon General
Counsel’s declining to call Luddine and Werbitski is appropriate.
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even after a conversation with Luddine failed to resolve the problem. Instead, Verni and Paci
were the first and only employees discharged for this purported reason. The evidence also
establishes, as Respondent discusses in its Post-Hearing Brief, that Paci campaigned in
support of Luddine’s slate during the November 2009 Local 282 election. However, because
there is no evidence in the record that Respondent was aware of Paci’s activities during the
election at the time he and Verni were discharged, this fact cannot be considered germane to
Respondent’s motivation.
For all of the foregoing reasons, the evidence does not support Respondent’s contention
that, as it now argues, Verni was discharged because Werbitski failed to comply with
Respondent’s hiring procedures. As a result, I find that Respondent discharged Verni in
retaliation for his having opposed Luddine’s slate of candidates in the Local 282 election, in
violation of Sections 8(a)(1) and (3) of the Act.
C. The Preponderance of the Evidence Establishes that Respondent Discharged
Verni on August 19 in Retaliation for his Protected Activity
I find that General Counsel has also established a strong prima facie case that Verni
was discharged on August 19 in retaliation for his protected activity. The evidence establishes
that Verni filed a grievance alleging that Respondent had assigned work to drivers out of
seniority, and that this grievance was sent by fax to Respondent’s office on August 18.
Jameson admitted during his testimony that he had received the grievance as of August 19,
when he decided to discharge Verni and in fact did so. The timing of Verni’s discharge, the day
after his seniority grievance was faxed to Respondent and Jameson admittedly learned of it,
constitutes significant evidence that the discharge was unlawfully motivated. See, e.g.,
Manorcare Health Services – Easton, 356 NLRB No. 39 at p. 3, 25 (2010) (discipline of
employee “just days” after her initial public support for the union indicative of unlawful
motivation); McClendon Electrical Services, 340 NLRB 613, fn. 6 (2003), citing La Gloria Oil,
337 NLRB 1120 (2002).
Trogisch’s statements to D’Aquila during their August 23 conversation also evince a
discriminatory motivation. D’Aquila’s uncontested account establishes that he called Trogisch to
protest Verni’s second discharge, given the agreement reached at the August 10 claims panel
hearing to reinstate him. I credit D’Aquila’s testimony that Trogisch responded that the parties
had an agreement until Verni filed a grievance, thereby attributing the discharge to Verni’s
having filed the seniority grievance. Trogisch did not explicitly deny having made this
statement, but testified that he did not recall having done so, and he did not provide any
alternative account of his conversation with D’Aqulia. D’Aqulia’s testimony was therefore not
meaningfully rebutted in this respect. See, e.g., Precoat Metals, 341 NLRB 1137, 1149 (2004)
(“professed lack of recollection” insufficient to refute “positive testimony” and thus create an
issue of fact). As a result, I find that Trogisch did in fact tell D’Aqulia that Verni was discharged
because he had filed the seniority grievance after returning to work.12 As discussed above,
such managerial statements explicitly attributing an adverse employment action to protected

12 Trogisch’s subsequent statement that Verni’s discharge was “above his pay grade” does
not negate the import of this comment, as Respondent contends. The statement itself appears
in the context of the overall conversation to refer to Trogisch’s decision-making authority, as
opposed to his knowledge of the reason for Verni’s August 19 discharge. In addition, it is
undisputed that Trogisch, as Equipment Manager, had supervisory authority over the drivers,
and in fact discharged Verni in July, according to Respondent.
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activity constitute evidence of animus, and indicate that General Counsel has established a
strong prima facie case. Vemco, Inc., 304 NLRB at 911-912.
Respondent argues that it discharged Verni on August 19 because Jameson learned
that day that Verni committed fraud by providing another employee with clean urine for a drug
test while employed at Tutor Perini Construction Corp. in 2002. However, even if Jameson first
learned of Verni’s previous misconduct from Rigby on that date,13 the evidence does not satisfy
Respondent’s substantial burden in establishing that Verni was discharged for this reason.
There is no evidence to demonstrate that Verni’s 2002 misconduct at Tutor Perini was
even tenuously connected to his employment with Respondent, an entirely different company, in
the summer of 2010. There is no evidence that there were any problems with Verni’s work
performance while employed by Respondent. There is no contention on Respondent’s part that
Verni was somehow obligated to disclose his 2002 misconduct and instead concealed it.
Respondent simply did not present sufficient evidence to establish any nexus between Verni’s
2002 misconduct at Tutor Perini and his 2010 employment sufficient to rebut General Counsel’s
prima facie case. In fact, ongoing substance abuse on Verni’s part would have been a far
greater threat to Respondent’s operations, and the evidence indicates that Jameson did so little
to investigate his purported suspicions regarding that possibility that he did not take them
seriously, if they indeed existed. All of this strongly suggests that Respondent’s asserted
rationale for Verni’s August 19 discharge is in fact pretextual.
In particular, the evidence does not support Jameson’s assertion that he had significant,
ongoing concerns that Verni would somehow create an unsafe condition or otherwise pose a
danger to Respondent or its employees because of drug use. Jameson testified that safety was
a critical priority for Respondent’s operation of the jobsite, and the operation of trucks and other
heavy machinery while under the influence of alcohol or drugs is obviously a safety hazard.
Jameson testified that he had believed since his own employment with Tutor Perini that Verni
had some sort of substance abuse issue, and that by July 17 to 20, he was under the
impression that Verni had a drug problem. In fact, Jameson was aware as of 2002 that Perini
had issued a memo specifically instructing managers not to hire Verni, a position that he would
surely have connected, as of July 20, with Verni’s supposed drug use. However, Jameson did
not avail himself of the contract’s provisions permitting him to suspend Verni and refer him to
the Employee Assistance Program, and in fact the evidence establishes that Jameson did
absolutely nothing regarding his purported suspicions.14 Indeed, Jameson agreed at the August
10 panel hearing to have Verni reinstated, and never mentioned any suspicions about drug use,
even when the Union pressed him for a description of the “work performance” problems which
Respondent was then claiming motivated Verni’s July 19 discharge. All of this evidence is
inconsistent with a genuine concern that unsafe conditions were being created by an
employee’s possible drug use, and undermines Jameson’s credibility regarding his motivation
for discharging Verni on August 19.
Jameson’s conduct at the September 7 panel hearing reinforces this conclusion. When
Gesualdi and Bisignano told Jameson that discharging Verni in retaliation for filing a grievance
would violate the law, even during Verni’s probationary period, Jameson’s response was, “show

13 I have disregarded Rigby’s gratuitous and non-probative remarks regarding Verni’s
misconduct at Tutor Perini.
14 Given these provision of the contract, I find Jameson’s contention that he believed himself
to be constrained by HIPAA from acting on his suspicions regarding Verni’s drug use to be
incredible.
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me where it says that in the contract.” This then became the crux of the argument between
Jameson and the Union representatives. I credit Gesualdi and Bisignano’s account of this
discussion, as Jameson did not address the September 7 meeting during his testimony.
Jameson’s insistence that the contract did not prohibit Respondent’s discharging Verni during
his probationary period because he had filed a grievance militates in favor of a finding that this
was in fact the reason for his August 19 discharge.15
For all of the foregoing reasons, the preponderance of the evidence does not
substantiate Respondent’s contention that it discharged Verni on August 19 because Jameson
learned of his misconduct at Tutor Perini in 2002. As a result, the evidence establishes that
Respondent discharged Verni in retaliation for his having filed the seniority grievance the day
earlier, in violation of Sections 8(a)(1) and (3) of the Act.
Conclusions of Law
1. The Respondent, CCA Civil Halmar International, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union, Building Material Teamsters Local 282, International Brotherhood of
Teamsters, is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Sections 8(a)(1) and (3) of the Act by discharging Michael Verni
on July 19, 2010 in retaliation for his protected internal union activities.
4. Respondent violated Sections 8(a)(1) and (3) of the Act by discharging Michael Verni
on August 19, 2010 in retaliation for his union activities.
5. The above-described unfair labor practices affect commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Remedy
Having found that Respondent has violated the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action necessary to effectuate the Act’s purposes.
Having discriminatorily discharged Michael Verni in retaliation for his protected
concerted activities, Respondent must offer Verni full reinstatement to his former position or to a
substantially equivalent position. Respondent must also make Verni whole for any loss of
earnings or other benefits he may have suffered as a result of the discrimination against him,
plus interest, in the manner prescribed in F.W. Woolworth, 90 NLRB 289 (1950) and New
Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010). Respondent shall also be required to
remove from its files all references to Verni’s unlawful discharges, and to notify him in writing
that this has been done and that the discharges shall not be used against him.

15 Respondent also argues that Verni’s seniority and discharge grievances continued to be
processed to arbitration, but Respondent’s compliance with the contract does not preclude the
conclusion that its dissatisfaction with Verni’s having filed the seniority grievance motivated his
August 19 discharge.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended16
ORDER
Respondent CCA Civil Halmar International, Inc., Bronx, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employees because they engage in
protected internal union activities.
(b) Discharging or otherwise discriminating against employees because they engage in
activities on behalf of Teamsters Local 282.
(c) In any like or related manner interfering with, restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) Within 14 days of the date of this Order, offer Michael Verni full reinstatement to his
former position or, if that position no longer exists, to a substantially equivalent position, without
prejudice to his seniority or to any other rights and privileges previously enjoyed.
(b) Make Michael Verni whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner set forth in the Remedy section of this
decision.
(c) Within 14 days of the date of this Order, remove from all files any reference to the
unlawful discharges, and within 3 days thereafter, notify Verni in writing that this has been done
and that the discharges will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its job site at the Alexander
Hamilton Bridge in New York, New York, copies of the attached notice marked “Appendix.”17

16 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
17 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 National Labor Relations board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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Copies of the notice, on forms provided by the Regional Director for Region 2, after being
signed by Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by e-mail, posting on an intranet or an internet site
and/or other electronic means if Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since July 9, 2010.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated: Washington, D.C., November 10, 2011.
__________________________
Lauren Esposito
Administrative Law Judge
JD(NY)–42–11
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against you because you engage in
protected internal union activities.
WE WILL NOT discharge of otherwise discriminate against you because you engage in
protected activities on behalf of Teamsters Local 282.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL within 14 days of the date of the Board’s Order, offer Michael Verni full reinstatement
to his former job, or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights and privileges previously enjoyed.
WE WILL make Michael Verni whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, less any net interim earnings, plus interest.
JD(NY)–42–11
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges of Michael Verni, and within 3 days thereafter, notify Verni
in writing that this has been done and that the discharges will not be used against him in any
way.
CCA CIVIL HALMAR INTERNATIONAL, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Room 3614, New York, NY 10278-0104
(212) 264-0300, Hours: 8:45 a.m. to 5:15 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (212) 264-0346.