George P. Bailey & Sons

National Labor Relations Board - Administrative Judge Opinions

Jul 2, 2003

04-CA-031620 (N.L.R.B. Jul. 2, 2003)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

GEORGE P. BAILEY & SONS, INC.

and Case No. 4-CA-31620

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION
NO. 269, AFL-CIO,

Peter C. Verrochi, Esq., for the General Counsel.
David J. Truelove, Esq., of Trenton, New Jersey,
for the Respondent.
Richard T. Aicher, Jr., assistant business manager/organizer
of Trenton, New Jersey, for the Charging Party.

DECISION

Statement of the Case

ERIC M. FINE, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania on March 6, 2003. The charge was filed by the International Brotherhood of
Electrical Workers, Local Union No. 269, AFL-CIO (the Union) on September 27, 2002,1 against
George P. Bailey & Sons, Inc. (Respondent). Complaint issued on October 30, alleging
Respondent violated Section 8(a)(1) and (3) of the Act by discharging its employee Thomas
Ditmars on August 16.

On the entire record,2 including my observation of the demeanor of the witnesses,3 and
after considering the briefs filed by the General Counsel and Respondent, I make the following

Findings of Fact

I. Jurisdiction

Respondent, a corporation, performs electrical services in the construction industry from
its facility in Bristol, Pennsylvania from where it annually performs services valued in excess of
$50,000 outside the state of Pennsylvania. Respondent admits and I find it is an employer
1 All dates are in 2002 unless otherwise indicated.
2 The General Counsel’s unopposed motion to correct the transcript, dated April 28, 2003, is
granted and received in evidence as G.C. Exh. 16.
3 In making the findings, I have considered the demeanor of all witnesses, the content of
their testimony, and the inherent probabilities of the record as a whole. In certain instances, I
have credited some but not all of what a witness said. See NLRB v. Universal Camera
Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951).

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engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union
is a labor organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

Respondent is a family owned corporation performing electrical construction and
maintenance work. There are four owners of Respondent. They are: Larry Bailey (L. Bailey),
the president; William Bailey (W. Bailey), the secretary; Jason Bailey (J. Bailey), the vice-
president; and Dustin Bailey (D. Bailey), the treasurer. Patti Bailey (P. Bailey), W. Bailey’s wife,
works for Respondent as office manager.4 During the time alleged discriminatee Thomas
Ditmars worked for Respondent, there were three journeyman electricians and four apprentices
employed there. The journeymen electricians were: Norris Mucklow, Steve Reed, and Chris
Kasparaitis. Gary Wilcox, Aaron Karpa, Ed Kolenda, and Ditmars worked as apprentices. The
four owners also performed electrical work.

A. Ditmars’ employment history

Prior to working for Respondent, Ditmars worked for Laclede Steel Company as an
electrical apprentice. He left there on September 14, 2001, because the plant closed. Ditmars
met with Local 269 Organizer Stephen Aldrich before and shortly after he was laid off from
Laclede Steel. Aldrich gave Ditmars a list of non-union electrical contractors, including
Respondent, as places to apply for work. Ditmars testified Aldrich did not tell Ditmars he
wanted him to serve as a union organizer when he gave him the list of contractors. Rather,
Aldrich told Ditmars he had to take a test, which was 3 to 4 months away, to join the Union as
the reason Ditmars should apply for work at non-union contractors.

Ditmars began working for Respondent on January 14, with a starting wage of $11 an
hour, and his hours of work were 7:00 a.m. to 3:30 p.m. He reported to master electrician
Kasparaitis and they usually worked as a two-person crew. Ditmars credited and
uncontradicted testimony reveals the following: In January, a union hand billed at the jobsite
where Ditmars was working for Respondent. There was a discussion about the hand billing
when Ditmars returned to the shop that afternoon. During the conversation, W. Bailey said in
reference to the union hand billers, let the idiots stand out and freeze, we are making money.

Ditmars received an oral performance evaluation on April 15.5 At that time, he met with
L. Bailey, W. Bailey, J. Bailey, and P. Bailey. During the meeting, L. Bailey said they were
satisfied with Ditmars’ work, and he was following directions well. Ditmars received a $2 pay
increase to $13 an hour.6

4 L. Bailey and P. Bailey were the only individuals named Bailey to testify during this trial. It
is alleged in the complaint and Respondent admits that L. Bailey, W. Bailey, and J. Bailey are
Respondent’s agents and supervisors within the meaning of Section 2(11) and 2(13) of the Act.
5 The evaluation date is set forth in the attendance calendar Respondent maintained for
Ditmars. Respondent maintained these calendars for all of its employees who performed
electrical work.
6 I have credited Ditmars’ testimony that L. Bailey’s attended the April 15 evaluation session,
although L. Bailey testified he was not there, since it is likely that Ditmars would have a better
recollection of his initial appraisal conference than L. Bailey who engages in similar conferences
for other employees. There is also no contention by Respondent that Ditmars did not receive a
positive review at this time.

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Respondent provided Ditmars with a Nextel cell phone and radio combination shortly
after the April 15 evaluation meeting. P. Bailey gave Ditmars the phone, but gave him no
instructions as to its usage. Ditmars testified 95 percent of the calls he made with the phone
were personal calls. He testified he assumed he could use it to make personal calls as a perk
of the job as he saw Kasparaitis use his company phone to talk to his wife numerous times.
Ditmars also saw Kolenda, on one occasion, use his cell phone to speak to his friend.

Ditmars was involved in an accident while driving a bucket truck owned by Respondent
on July 9. Ditmars was getting ready to park the bucket truck and he clipped the right rear
bumper of Kasparaitis’ company van. One of the side compartment tool doors fell off the bucket
truck, and one was dented. There was also some damage on the right rear bumper on the van
and a dent on the right side of the van. Ditmars reported the accident to L. Bailey, who said he
appreciated Ditmars not trying to hide it. Respondent repaired both vehicles in house, and the
repairs took several days.

Ditmars second oral evaluation meeting occurred on July 17. Present were L. Bailey, W.
Bailey, J. Bailey, P. Bailey and Ditmars. Ditmars’ credited testimony reveals L. Bailey spoke at
the meeting and told Ditmars they liked his work and he was receiving a $.50 an hour raise.7
However, L. Bailey told Ditmars to be more careful with the company vehicles in view of
Ditmars’ recent accident. L. Bailey’s credited testimony reveals that, during the meeting, he
also told Ditmars that Ditmars had a lot of phone calls on his company cell phone and that the
phone was basically to be used for company use, although he could use the phone if he had to
call someone.8

Ditmars credited testimony reveals the following: Ditmars signed a union authorization
card on June 14. Ditmars met with Aldrich at the union hall on Monday, August 12, at which
time Aldrich asked him to be a volunteer organizer at Respondent. Ditmars agreed and Aldrich
gave him some pamphlets and two t-shirts with union logos. Ditmars testified that Aldrich told
him, “if anything happens to me, they have my, they’re on my side.” Aldrich told Ditmars to pass
out the pamphlets and try and get a feeling for the Union with the rest of the company. The
parties stipulated that on Tuesday morning August 13, Aldrich faxed a letter to J. Bailey, on the
Union’s letterhead, identifying Ditmars as a volunteer union organizer. L. Bailey acknowledged
that he saw Aldrich’s letter the day it was faxed to Respondent. On August 13, Ditmars wore a
union t-shirt to work and he continued to wear one for the rest of the week. L. Bailey admitted
seeing Ditmars wearing the union t-shirt on one or two occasions.9
Continued
7 Ditmars testified he had been told he would be evaluated every six months as an
apprentice, and that he would receive a $.50 raise at each evaluation.
8 Ditmars admitted L. Bailey said Ditmars was using the company cell phone too much, and
that L. Bailey told him that he should try and cut back.
9 Ditmars testified that, after work on August 13, he gave union pamphlets to Kolenda and
Karpa. However, General Counsel witnesses Kolenda and Karpa testified Ditmars gave them
the pamphlets in the morning before the start of work. Karpa testified Ditmars gave them the
union literature the week of Ditmars’ discharge. While, Kolenda estimated Ditmars gave them
the literature a couple of weeks before Ditmars was discharged. Ditmars also testified he spoke
to Kasparaitis about the Union during their lunch break on August 13 and he left about five
copies of the Union’s pamphlet with Aldrich’s business cards and union authorization cards in
the shop at around 3:30 p.m. Respondent’s office and its shop are housed in separate
buildings. Ditmars testified that after work on August 13, Ditmars walked into L. Bailey’s office
and told L. Bailey that Ditmars could not answer any of L. Bailey’s questions. Ditmars said if

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_________________________

P. Bailey’s credited testimony reveals, on the evening of August 14, at L. Bailey’s
instruction, she typed on a her computer a memo, dated August 14, to Ditmars which was then
signed by L. Bailey.10 The memo cites Ditmars’ July 9, accident with Respondent’s bucket truck
and describes the repairs needed on Respondent’s two vehicles as a result of the accident.
The memo also cites the July 17, apprentice meeting where L. Bailey discussed with Ditmars
the issue of careful driving and Ditmars’ misuse of the company issued cell phone. The memo
ends with the following, “As a warning, continued incidents with the company vehicles, damage
to company property or misuse of company issued equipment could result in disciplinary action
or termination.”

Ditmars was summoned to a meeting with L. and P. Bailey on Thursday, August 15,
after work at around 3:30 p.m. in one of Respondent’s offices. Ditmars credibly testified that
L. Bailey said, due to recent events such as the accident Ditmars was involved in with
Kasparaitis’ vehicle, they were going to start documenting that people have to be careful with
company vehicles. L. Bailey handed Ditmars the August 14, written warning and said this was
just for Ditmars to acknowledge he knew to be more careful and he needed to try and keep his
cell phone use down. Ditmars testified L. Bailey basically read off the August 14 memo
addressed to Ditmars, which Ditmars initialed during the meeting. Ditmars credibly testified he
did not report to work late on August 15, and that there was no discussion of the time he arrived
for work during this meeting. Ditmars credibly denied that L. Bailey said anything to Ditmars
about anyone at Respondent damaging or misusing company tools or that L. Bailey mentioned
an upcoming safety meeting.

L. Bailey and P. Bailey gave different accounts of the August 15 meeting than that
provided by Ditmars. I found their testimony relating to the meeting to be contradictory,
implausible, and not worthy of belief. They both testified that the reason for the meeting was
that Ditmars arrived for work late on August 15. This in itself is highly suspect since P. Bailey’s
testimony reveals that, at L. Bailey’s direction, she had typed a written warning to Ditmars on
the evening of August 14, the content of which had nothing to do with Ditmars’ attendance.
Nevertheless, L. Bailey testified, that on the morning of August 15, he saw Ditmars park his car
and walk into the shop at about 7:10 to 7:15 a.m. L. Bailey testified Ditmars was supposed to
report at 7 a.m. L. Bailey testified that, at the August 15, meeting, “I explained to him that I
called him into the meeting because he had been late. And I asked him why he was late. He
said he had no reason.” L. Bailey testified he told Ditmars to call if he was going to be late, to
let Respondent know if and when he was coming so they could plan the work. Contrary to
L. Bailey, P. Bailey testified that L. Bailey did not see Ditmars arrive at work on August 15
because L. Bailey was out at a jobsite when Ditmars reported to work. Rather, P. Bailey
testified she was in the office when, later that morning, J. Bailey told L. Bailey that Ditmars was
late when L. Bailey returned from the jobsite. Aside from the obvious inconsistencies in the
L. Bailey had any questions to call Aldrich and he placed a copy of Aldrich’s business card on L.
Bailey’s desk. L. Bailey denied this aspect of Ditmars’ testimony. Taking into consideration the
contradictory testimony of the General Counsel’s witnesses as to Ditmars’ union activity on
August 13, I do not credit Ditmars’ claims that he attempted to present L. Bailey with union
materials on August 13, in the face of L. Bailey’s denial. Nor do I find the General Counsel
established that Ditmars distributed union literature to his co-workers on August 13. I do find, as
set forth above, L. Bailey saw the Union’s fax labeling Ditmars as a voluntary organizer on
August 13, and L. Bailey saw Ditmars wearing a union t-shirt to work during the week of August
13, before he discharged Ditmars on August 16.
10 L. Bailey testified he handwrote the memo and P. Bailey typed it.

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testimony of Respondent’s witnesses, L. Bailey’s failure to confront Ditmars at 7:15 a.m. on the
morning of August 15 about his alleged tardy arrival further undercuts his claim that he saw
Ditmars report late on August 15. I therefore, considering the witnesses’ demeanor, have
concluded that Ditmars reported to work on time on August 15 and have credited his testimony
concerning the August 15, meeting over that of L. Bailey and P. Bailey.11

P. Bailey testified that following the August 15 meeting she typed a file memo dated
August 15, which reads as follows:

A meeting was held on Thursday, August 15, 2002 at 4:20 p.m. Attending the
meeting were Larry G. Bailey, Patti Jo. Bailey and Thomas J. Ditmars. Larry asked Tom
to read over the warning sheet. Tom did so. Larry explained to Tom why George P.
Bailey & Sons, Inc. wrote the warning paper. Tom was asked that if he agreed with the
warning paper to sign the paper and he did so. Larry went over the damaging of
company tools, misuse of tools, damaging of company vehicles and safety issues. Tom
was made aware of that any employee who damages or misuse of tools will also be
given a warning paper. Tom was told that in the last 6 months there has been a lot of
damage to company tools and vehicles and that whoever damages the company
property will be held responsible. Tom was made aware that we were not singling him
out but that there were going to be other write ups with more recent damage that was
done to company equipment. Tom was also asked why he was late this a.m. and Tom
stated, “no reason”. Larry told Tom that if you are ever going to be late just give a phone
call, Tom agreed. Tom was made aware that George P. Bailey & Sons, Inc. was going
to have a safety meeting with all employees. Tom was given a warning paper.12

L. Bailey testified that, during his August 15 meeting with Ditmars, he did not accuse Ditmars of
damaging or misusing company tools. Rather, L. Bailey testified Respondent was experiencing
a problem with a lot of tools being lost or damaged, and during the meeting, he tried to alert
Ditmars that there was problem at the company. However, L. Bailey testified he did not put
anything in writing in other employees’ files about damaging or misuse of company tools.

On Friday, August 16, Ditmars was scheduled to work at a jobsite in Monmouth County,
New Jersey, which was about an hour drive from Respondent’s shop. At the time, Ditmars lived
less than a 5 minute drive from Respondent’s shop. Ditmars testified that a power failure
caused his alarm not to go off on August 16, and he did not wake up until 9 a.m. He testified he
tried to use his company phone and radio to call in that he was late, but they would not work.
Ditmars home phone was shut off at the time. Rather, than reporting to Respondent’s shop,
Ditmars went directly to the Monmouth County jobsite and he arrived there around 10:30 a.m.
11 The August 14 warning to Ditmars was typed on a computer, and could have easily been
amended to include Ditmars’ alleged late arrival on August 15, when he was presented with the
warning that afternoon, had he in fact reported late the morning of August 15. Yet, there was no
reference to Ditmars’ alleged late arrival in the written warning. Respondent argues in its brief
that an adverse inference should be drawn by General Counsel’s witnesses Karpa and
Kolenda’s failure to testify that Ditmars reported on time on August 15. I reject this contention.
Ditmars’ credited testimony reveals he was never accused of reporting late on August 15, prior
to his discharge. Noting that the evidence shows reporting late was not an infrequent
occurrence at Respondent, it would be highly unlikely that an employee, who testified on March
6, 2003, would be able to remember whether another employee was 10 minutes late or on time
on August 15, 2002.
12 There is no contention Ditmars was ever presented a copy of the August 15 file memo.

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When Ditmars got to the job, he told Kasparaitis what happened, and Kasparaitis gave Ditmars
an assignment, which involved his returning to the shop. Ditmars arrived at the shop around
11:30 a.m., which was close to the lunch break. At that time, Ditmars met with L. and D. Bailey
in the main office. Ditmars testified L. Bailey said you were late this morning and you did not
call. Ditmars said he tried calling but the phone would not work. L. Bailey said we cannot have
this and Ditmars was fired. Ditmars testified he told L. Bailey why he was late, although
L. Bailey did not ask for the reason. L. Bailey followed Ditmars to his car to retrieve
Respondent’s cell phone. Ditmars testified he dialed a number and demonstrated to L. Bailey
the phone did not work. However, L. Bailey just took the phone and Ditmars went home.
Ditmars testified that L. Bailey did not say anything about the time he arrived for work on
Thursday, August 15, or about his cell phone use during this meeting. Ditmars admitting telling
L. Bailey that Ditmars messed up by not calling in or notifying the company. Ditmars denied
telling L. Bailey that he did not blame him for firing him.

L. Bailey testified he learned Ditmars was late around 7:30 a.m. on August 16, when he
failed to report to the shop. As a result, L. Bailey sent Mucklow out with Kasparaitis to the
Monmouth jobsite in place of Ditmars. Mucklow was supposed to go out with L. Bailey, who
worked alone instead. L. Bailey was able to complete the work he had to do that day without
assistance. L. Bailey testified Ditmars reported directly to the Monmouth County jobsite later
that day and Kasparaitis sent Ditmars back to the shop with an assignment there. L. Bailey
returned to the office right before the noon lunch break. L. Bailey testified he had separate
conversations with the other three owners. He testified they knew he had a meeting with
Ditmars the day before, and “we all decided to terminate him.”

L. Bailey testified Ditmars arrived at the shop around 1 or 1:30 p.m. on August 16, and L.
Bailey told him to come into the office and asked him what happened. L. Bailey testified
Ditmars said he woke up and his phone was blinking. L. Bailey asked why he did not call and
Ditmars said the phone did not work. L. Bailey asked why Ditmars did not use a pay phone or
his own phone. Ditmars said he did not have a phone. L. Bailey asked why Ditmars did not
drive to the shop. Ditmars said he panicked and drove to the jobsite. L. Bailey said he could
not understand why Ditmars did not try to make a phone call or come to the shop. L. Bailey said
he had to take the man that was supposed work with L. Bailey and send him on Ditmars’ job. L.
Bailey said it was unacceptable for Ditmars not to call and let them know when or if he was
coming in. L. Bailey said we are going to have to terminate you. L Bailey testified Ditmars said,
“I made a mistake, I don't blame you for firing me.” L. Bailey testified he walked Ditmars out to
his car, and Ditmars handed him Respondent’s cell phone and then left. He testified Ditmars
did not do anything with the phone. L. Bailey went inside the office and handed the phone to P.
Bailey and he asked her to key up the phone’s radio and it worked. He testified that, to his
understanding, if the radio was working then phone was working. L. Bailey testified he had
made a decision to discharge Ditmars even before he talked to him, and that no matter what
Ditmars said it would not have impacted on that decision.

L. Bailey’s account of the August 16, termination meeting was in many respects similar
to that of Ditmars. Neither testified that L. Bailey told Ditmars that he was being fired, at least in
part, for excessive cell phone usage. Moreover, neither testified that L. Bailey referenced
Ditmars’ alleged late arrival on August 15, during their August 16 meeting. Since I have
concluded, for reasons set forth below, that Respondent’s officials were not above providing
false reasons for discharging Ditmars, I have credited Ditmars’ over L. Bailey and have
concluded that Ditmars did not tell L. Bailey that he did not blame L. Bailey for firing him.

While I have in large part credited Ditmars’ account of the August 16, meeting, I do not
credit his claim that his cell phone was not working on that date. First, I find it highly improbable

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that Ditmars’ cell phone did not function on the same day he testified a power outage caused his
alarm not to go off. Ditmars testified he did not wake up until 9 a.m. on August 16. While he
knew he was supposed to report to the shop, which was only 5 minutes from his home to
receive his assignment, he went directly to the jobsite, which was an hour drive. Regardless of
whether his cell phone worked, it would have been an easy drive to report to the shop, explain
why he was late, and see if his assignment had changed due to his late arrival. I therefore do
not credit his testimony that his cell phone did not work, and I also find it irrelevant, because
regardless of whether his cell phone worked, Ditmars knew he was supposed to contact the
shop when he was going to be late or miss work, as he had done in the past, and he failed to do
so. I find the written warning and disciplinary interview Ditmars received on the evening of
August 15, contributed to Ditmars’ failure to contact Respondent’s officials on August 16, when
he overslept. In this regard, L. Bailey testified Ditmars told L. Bailey, during Ditmars’ August 16
termination meeting, that Ditmars panicked as the reason for his driving directly to the jobsite
without first contacting Respondent.

Ditmars was discharged on Friday August 16, and he began working for a union
contractor on Monday, August 19, although he had not taken the Union’s exam, which he
testified was a prerequisite for union related employment. Ditmars explained he was able to get
a job with a union contractor without the exam because he had been discharged after he
became a union organizer. General Counsel witnesses Karpa and Kolenda worked for
Respondent until they went on strike on September 26. Karpa and Kolenda testified that they
went on strike over Ditmars’ discharge in that they felt he was unlawfully terminated. Karpa,
Kolenda, and L. Bailey testified that they notified L. Bailey they were going out on strike on
September 26. Karpa testified that, after Ditmars was discharged, in late August, the Union
faxed information about Karpa and Kolenda’s pro-union status to Respondent. Karpa testified
from that point until he went on strike, his job assignments remained the same, he received no
write-ups, and no one from management approached him about the Union. Kolenda testified
that, on December 13, 2001, P. Bailey had a discussion with him about excessive cell phone
use and that in September 2002, L. Bailey had a discussion with him about excessive cell
phone use for which Kolenda was given a written warning dated September 9, 2002.

B. Analysis

In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the Board established an analytical framework for deciding cases
turning on employer motivation. To prove that an employee was discharged in violation of
Section 8(a)(3), the General Counsel must first persuade, by a preponderance of the evidence,
that an employee's protected conduct was a motivating factor in the employer's decision. If the
General Counsel is able to make such a showing, the burden of persuasion shifts “to the
employer to demonstrate that the same action would have taken place even in the absence of
the protected conduct.” Wright Line, supra at 1089. See also Manno Electric, 321 NLRB 278,
280 fn. 12 (1996). The elements commonly required to support a finding of discriminatory
motivation are union activity, employer knowledge, and employer animus. Farmer Bros. Co.,
303 NLRB 638, 649 (1991), enfd. mem. 988 F.2d 120 (9th Cir. 1993). In Washington Nursing
Home, 321 NLRB 366, 375 (1996), it was held that:

Inferences of animus and discriminatory motivation may be warranted under all the
circumstances of a case; even without direct evidence. Evidence of suspicious timing,
false reasons given in defense, and the failure to adequately investigate alleged
misconduct all support such inferences. Adco Electric, 307 NLRB 1113, 1128 (1990),
enfd. 6 F.3d 1110 (5th Cir. 1993); Electronic Data Systems Corp., 305 NLRB 219 (1991);

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Visador Co., 303 NLRB 1039, 1044 (1991); Associacion Hospital del Maestro, 291
NLRB 198, 204 (1988); and Clinton Food 4 Less, 288 NLRB 597, 598 (1988).

Similarly, in La Gloria Oil and Gas Co., 337 NLRB No. 177, slip op. at 5 (2002), the timing of
discharges on the heels of union activity and evidence of disparate treatment resulted in a
finding that the reasons advanced for the termination of employees Saylor and Lamp were
pretextual and that they were terminated for their union activity. Thus, the Board has held that
when the stated reasons for a disciplinary action are found to be false, “the Board may infer that
there is another reason--an unlawful one which the employer seeks to conceal-…”. Amber
Foods, Inc., 338 NLRB No. 84, slip op. at 4 (2002).

In the instant case, on August 13, the Union notified Respondent’s officials by fax that
Ditmars was a voluntary union organizer, and Ditmars began to wear a union t-shirt to work. I
find that L. Bailey reacted to this news by having P. Bailey type a warning letter to Ditmars on
the evening of August 14, which was presented to Ditmars after work on August 15. The
warning cites two indiscretions that had previously been discussed with Ditmars during his July
17 evaluation meeting, a driving accident with Respondent’s vehicles that took place on July 9,
and Ditmars excessive use of Respondent’s cell phone. L. Bailey testified that he had not
reviewed any other of Ditmars cell phone records between the time of the July 17, evaluation
meeting and the time he directed P. Bailey to type the August 14 warning letter, almost a month
later.13 Thus, Respondent provided no explanation for the timing of the August 14 warning
letter, and I can only attribute it to Ditmars’ union activity, disclosed to Respondent on August
13. Further, as set forth above, I have discredited the testimony of L. and P. Bailey that Ditmars
showed up 10 minutes late for work on August 15. I have therefore concluded that Ditmars’
August 14, written warning tendered to him on August 15, and the August 15, memo to his file
were issued for pretextual reasons.14 While the August 14 warning and the August 15 file
memo are not specifically alleged in the complaint, the circumstances relating to the issuance of
these documents were fully litigated and the documents are closely related to the events leading
to Ditmars’ August 16, discharge. Respondent’s witnesses testified about these documents and
in fact, the August 15, file memo was introduced as Respondent’s exhibit and had not been
shown to Ditmars prior to his discharge. Accordingly, I find that Respondent’s issuance of the
August 14, written warning to Ditmars and the August 15, file memo to be violative of Section
8(a)(1) and (3) of the Act. See Marshall Durban Poultry Co., 310 NLRB 68, fn. 1, enfd. in
relevant part 39 F. 3d 1312 (5th Cir 1994) where a series of fully litigated warnings closely
related to complaint allegations where found violative of the Act; and Monroe Auto Equipment
Co., 230 NLRB 742, 751 (1977).

Thus, within three days of being notified Ditmars was a voluntary organizer, Respondent
had papered his file with an unlawful warning letter and file memo, held a disciplinary meeting
for conduct that occurred a month earlier and then discharged him. I have concluded that the
General Counsel has established a prima facie case that the discharge was unlawfully
13 L. Bailey claimed he did not review Ditmars’ cell phone records until August 16, shortly
before he discharged Ditmars.
14 The August 15 memo in fact makes what I have concluded to be a veiled reference to
Ditmars’ union activity by stating Respondent was not “singling out” Ditmars concerning a recent
spate of alleged damage to company tools and vehicles. Yet, L. Bailey testified that Ditmars
was the only employee for whom there was a private discussion where damage to company
equipment was raised, and there was no documentation about it for any other employee’s file.
Moreover, despite the documentation to his file on this topic, L. Bailey admitted Ditmars was not
being accused of damaging Respondent’s tools.

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motivated, and for the reasons set forth below I find the justifications advanced for Ditmars’
termination are based on disparate treatment and pretextual.

The evidence is not in conflict that Ditmars did not report on time on August 16, that he
failed to call in, and that he compounded this transgression by reporting directly to
Respondent’s jobsite, rather than reporting to Respondent’s facility as Respondent required him
to do. However, L. Bailey’s testimony was somewhat inconsistent at to the reasons he
discharged Ditmars. L. Bailey initially testified he decided to discharge Ditmars when he heard
at 11 a.m. on August 16, that Ditmars had traveled to the Monmouth jobsite without calling in or
reporting to the office, which was only 3 miles from Ditmars’ home. L. Bailey then testified he
did not know exactly when he decided to discharge Ditmars, but it was “sometime in that period
where he didn't show up for work. I didn't know that he showed up on the job till after that, so I
don't really know exactly when it happened.” While L. Bailey initially testified he decided to
discharge Ditmars at 11 a.m., or earlier when he found out Ditmars did not show up for work, he
later testified Respondent first received Nextel’s phone bill for the usage period of June 18 to
July 17, after lunch on August 16, although the “statement date” on the bill is July 21, 2002.
L. Bailey then testified, “when I took a look at these phone records, I would say that was pretty
much the end of it.” L. Bailey testified the Nextel bill showed Ditmars made 221 phone calls
during the billing period and that he had not discharged Ditmars until after he reviewed the
phone records that afternoon. He now claimed it was the phone records in combination with
Ditmars showing up late for work that caused L. Bailey to fire him, although he maintained the
main reason was Ditmars’ failure to show up for work.

In addition to the continuous shifts in his testimony, L. Bailey could not adequately
explain why it took Respondent almost a month to received the Nextel bill, from the bill’s
statement date. He testified P. Bailey could better explain the large gap in the statement date
from the time of receipt of the bill. However, P. Bailey was never questioned about the timing of
the receipt. I do not credit L. Bailey’s self-serving declaration that Respondent first received the
July 21 bill on August 16, or that he first reviewed the bill shortly before he discharged Ditmars.
In this regard, the testimony of Ditmars and L. Bailey reveals that L. Bailey did not cite Ditmars
phone calls during the August 16 discharge meeting. I find that, had L. Bailey reviewed the cell
phone bill shortly before the discharge meeting as he contended, he would have raised the
matter at the meeting.15 I view the shifting and implausible content of L. Bailey’s testimony to
underscore the pretextual nature of Ditmars’ termination.

Concerning, Respondent’s attendance policy, L. Bailey testified Respondent has no time
clock or sign in sheets. L. Bailey testified employees are supposed to report at 7 a.m., but he
initially testified employees would have a 5 to 10 minute grace period after 7 a.m. before they
are marked late.16 He then testified, “I would guess five minutes.” L. Bailey testified
Respondent’s procedure is that if an employee is going to be late they should call in. He then
testified if an employee is going to be 5 minutes late, they will get a lateness marked on
Respondent’s attendance calendar, “but I think normally Patti removed it if they called.” L.
Bailey then testified that even if they do call, it would still be marked on the calendar with a note
they called. L. Bailey also testified, that “I would expect that if a person came in late, that they
could at least come in and say I'm late because of something happened, and there wouldn't be
15 I also note that the July 21, Nextel bill is clear on its face that the vast majority of the calls
on the bill had been made by July 17, which was on or before L. Bailey’s July 17 counseling to
Ditmars that he needed to cut back on his cell phone usage.
16 Respondent’s attendance calendar for Ditmars shows an entry for August 15, of no call
arrived 7:10 a.m.

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11

a problem if they had an excuse. There was an accident, it wouldn't be a problem.” Thus,
Respondent’s attendance policy is imprecise at best.17

Moreover, a review of Respondent’s attendance calendars reveals that Respondent
tolerated much worse attendance from other employees than the conduct, which resulted in
Ditmars’ discharge. Ditmars was hired on January 14. He attended a funeral on May 16, which
P. Bailey testified was an excused day off. Ditmars was absent on July 12, for which P. Bailey
testified he placed a timely call to let Respondent know he was going to be out. Ditmars did not
work on July 29, because his son was hospitalized. Ditmars showed up at Respondent’s facility
before the start of the workday to let them know he would not be available. L. Bailey testified
Ditmars absence on July 29 was not held against him. Ditmars reported late on August 16, and
was summarily discharged.

Respondent’s records for apprentice Michael Bradley show he was hired on April 3,
2000. P. Bailey’s testimony, on review of Bradley’s 2000 attendance calendar shows: Bradley
was absent on April 13 and 15, May 2, 3, and 18, June 13 and 14, July 17, August 14,
September 22, and November 6, 2000. Bradley only worked partial days on April 28, May 10
and 13, June 6, July 5, 7, and 15, August 11 and 18, and on September 27, 2000. Bradley was
late for work on May 16, June 17, July 21, September 6, October 2, 6, and 25, and on
November 13 and 14, 2000. On July 25 and 26, Bradley took vacation with no pay. On October
15, Bradley walked of the job. Bradley did not receive his first oral warning for attendance until
October 3, and on October 9, Bradley received a second oral warning. Bradley was discharged
on November 15, 2000, due to absenteeism and tardiness.

Respondent’s records show apprentice Gerald Capie was hired on February 12, 2001.
P. Bailey’s testimony, on review of Capie’s 2001 attendance calendar shows that: Capie was
late for work on February 13, showing up at 10:30 a.m. On February 17, he did not call or show
up for work. He was late on February 17, showing up at 7:15 a.m. He was late on March 1 and
was given a verbal warning on that date. Capie was late on March 12, arriving at 7:15 a.m.
Capie was absent from work on April 5, but did not call in until 7:15 a.m. Capie was late on April
18 and 19, arriving at 7:10 a.m. on each day. He was late on April 21, arriving at 7:30 a.m. and
he was sent home. On May 21, Capie did not call or show up for work. J. Bailey called and left
a message for Capie to call Respondent. The calendar reflects that Capie called at 2:30 p.m.
on May 22, 2001 and quit. L. Bailey testified Capie called and asked if he could quit after not
showing up for 2 days.

Karpa was hired on May 22, 2000. Karpa’s credited testimony reveals that, not long
after he started work in 2000, he missed a day of work without calling in. L. Bailey told Karpa
not to let it happen again. P. Bailey, on review of Karpa’s 2001 attendance calendar, testified
that: On March 24, Karpa was 30 minutes late, and on March 26, he was 10 minutes late.
Karpa was 10 minutes late on April 16, and 90 minutes late on April 17. On April 18, Karpa was
issued a verbal warning for coming in late. Karpa worked part of the day on July 13, and he
called in sick on August 19 and 20. Karpa took off on August 23 and 24, due to a death in the
family, and W. Bailey counseled him for being late on August 25.18 On November 4, Karpa did
Continued
17 L. Bailey testified Respondent’s record keeping improved when P. Bailey took over.
However, P. Bailey testified before she converted from part time to full time in June 2001, the
other secretary kept the attendance records, and she kept pretty good records.
18 Karpa credibly testified around the end of the summer 2001, Karpa was an hour and one
half to 2 hours late for work. P. Bailey called him at his home around 8:30 a.m. and woke him
up. When Karpa arrived at his jobsite, J. Bailey asked Karpa if they were going to have to call

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_________________________
Continued
not call or show up for work. On November 8, Karpa was 90 minutes late. On December 26,
Karpa called at 6:30 a.m. and let Respondent know he did not have a ride to work. On
December 27, L. Bailey and W. Bailey counseled Karpa. P. Bailey’s testimony, on review of
Karpa’s 2002 attendance calendar, reveals that: Karpa was late on February 16 reporting at
7:30 a.m., and late on February 19, reporting at 7:25 a.m.19 On August 26, Karpa called in sick,
and on August 30, Karpa left at noon.

Kolenda was hired on September 10, 2001. P. Bailey, on review of Kolenda’s 2001
absentee calendar, testified that: Kolenda left early on October 9 and on October 11, at 1 p.m.
and 3 p.m., respectively. Kolenda was scheduled to work on Saturday, November 10, but he
did not show and failed to call until 11:30 a.m., and L. Bailey told him not to come in.20 P.
Bailey, on review of Kolenda’s 2002 calendar, testified that on January 12, he was supposed to
report at 7 a.m., but did not call in until 8 a.m. On February 9, Kolenda did not show or call in.
Rather, someone from the company called him and he arrived at work at 7:30 a.m. On August
11, Kolenda left an hour early.

Thus, Respondent’s attendance records show that it tolerated multiple attendance
infractions from its employees, until it was notified that Ditmars was a voluntary organizer. At
which point, it discharged Ditmars for being late on one occasion. Respondent contends at
page 3 of its post-hearing brief that, “In the past year or two, the employees were provided
Nextel telephones and radios for the purpose of calling in, as well as communicating with other
employees.” Respondent argues at the same page of its brief that its attendance policy
“became more stringent once the employees were given the Nextel cell phones/radios.” I do not
find these arguments to be very convincing. First, Respondent never established when it
started using the cell phones. P. Bailey could only testify that she did not believe Capie, who
worked for Respondent in 2001 was given a Nextel phone, and that she did not believe but was
not sure whether Bradley, who worked for Respondent in 2000 had one. Moreover, L. Bailey
never testified Respondent’s attendance policy changed when employees received cell phones.
In fact, he testified, despite his employees having cell phones that “I would expect that if a
person came in late, that they could at least come in and say I’m late because of something
happened, and there wouldn’t be a problem if they had an excuse.” “But if somebody shows up
late and doesn’t say anything to you or doesn’t call, to me they’re trying to come in late without
letting me know they’re late, and I got a problem with somebody doing that.” Thus, I reject the
argument that the attendance policy changed when employees were given cell phones.21
him every day to make sure he came to work, and Karpa said no.
19 L. Bailey testified that he made the lateness notations on Karpas’ attendance calendar for
February 16 and 19. L. Bailey testified he did not have an independent recollection of those
dates, but based on his review of the calendar he testified Karpa called in on time and stated he
would be late on those two dates. I do not credit L. Bailey’s testimony that Karpa called in a
timely fashion. Respondent’s calendars show multiple late arrivals for several employees, some
coming in as little as 10 minutes late. Yet, the calendars in most instances do not show whether
the employee called in and notified Respondent he was going to be late. Considering his
demeanor, I do not find Respondent’s attendance calendars as precise as L. Bailey attempted
to portray them concerning whether someone called in to report they were going to be late.
20 Kolenda testified he overslept.
21 I also reject Respondent’s contention that Ditmars intentionally engaged in conduct that
would result in his discharge so he could obtain higher union wages by working elsewhere.
Ditmars overslept on August 16, but he thereafter drove an hour directly to the Monmouth
jobsite in an effort to rectify his mistake. While admittedly he should have called Respondent or
reported to the shop before going to the jobsite, his driving an hour in an effort to begin work

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_________________________
In sum, Respondent was notified Ditmars was a union organizer on August 13. On
August 15, he was given a written warning dated August 14, for conduct occurring a month
earlier for which Respondent at the time concluded only required a verbal counseling. I have
determined that Respondent has, after the fact, falsely accused him or reporting 10 minutes late
on August 15, and has discharged him for reporting late on August 16, although theretofore
Ditmars had maintained a good attendance at Respondent. Respondent’s records and the
credited testimony shows that Respondent had tolerated much worse attendance from other
employees, without even disciplining them, than the conduct for which it discharged Ditmars.
Accordingly, I find the reasons advanced for Ditmars’ termination were pretextual and
Respondent discharged Ditmars on August 16 in violation of Section 8(a)(1) and (3) of the Act.22

Respondent argues in its brief that in July 2002, Ditmars was warned about excessive
phone use, and that Ditmars, at that time, assured L. Bailey he would cut back. It is argued that
after Ditmars was discharged, a review of the prior month’s phone bill, again reflected a large
disparity of the personal calls made by Ditmars when compared to the calls of other
apprentices. Respondent contends at page 13 of its brief, that once Ditmars’ continued
excessive phone use was discovered after his discharge, it is clear that Ditmars would have
been discharged at that time. In this regard, L. Bailey testified he had never had an employee
use his cell phone to the extent Ditmars was using it. L. Bailey testified, that after Ditmars was
discharged, he reviewed the phone bills for the last month Ditmars had worked there and that
Ditmars’ phone usage was excessive for four months in a row.

In Tel Data Corp., 315 NLRB 364, 366 (1994), affd. in relevant part, 90 F. 3d 1195 (6th
Cir. 1996), the Board set for the following standard for consideration of knowledge of
misconduct obtained by a respondent after if had unlawfully discharged an employee. It was
held in that case that:

Under Board precedent, ‘if an employer satisfies its burden of establishing that the
discriminatee engaged in unprotected conduct for which the employer would have
discharged any employee, reinstatement is not ordered and backpay is terminated on
the date that the employer first acquired knowledge of the misconduct.’ Marshall Durbin
Poultry Co., 310 NLRB 68, 70 (1993), citing John Cuneo, Inc., 298 NLRB 856, 856-857
(1990), and Axelson, Inc., 285 NLRB 862, 866 (1977).

The Board concluded in Tel Data Corp., supra. at 367, where it was discovered that the
discriminatee over reported hours on his time card, that the respondent “did not satisfy its
burden of establishing that it would have discharged any other employee for the same conduct.
Accordingly, Frederick is entitled to reinstatement and full backpay.” In Marshall Durbin Poultry
Co., 310 NLRB 68, 70 (1993), affd. in relevant part 39 F.3d 1312 (5th Cir. 1994), the Board
refused to order reinstatement of an unlawfully discharged supervisor. The Board held the
respondent had satisfied its burden of establishing that upper management had a policy of not
tolerating sexual misconduct of its supervisors, and in fact had discharged a supervisor in the
past for admittedly engaging in such behavior.

does not suggest that Ditmars was an individual who was intent on forfeiting his job.
22 I find cases such as Maple Grove Healthcare Center, 330 NLRB 775, 777 (2000), relied
on by Respondent to be distinguishable from the facts herein. In Maple Grove, the alleged
discriminatee had a series of prior disciplines, and the respondent maintained a uniform policy
of policy of progressive discipline resulting in the employee’s discharge.

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I find that Respondent has not met its burden, under the above authorities, of
establishing it would have discharged Ditmars when it reviewed its August 26 phone statement.
The record shows that, prior to gaining knowledge of any union activity, Respondent had
counseled Kolenda on December 13, 2001, about excessive cell phone use. Kolenda had
started working for Respondent on September 10, 2001. He testified that in December 2001, he
had discussion with P. Bailey about excessive cell phone use, and Respondent’s assertion is
uncontradicted that this took place on December 13, 2001. Respondent’s records reveal that
for its cell phone bills with a statement date of November 18, 2001, Kolenda made 34 calls,
which created no additional cost for Respondent. (See, Appendix A for a summary of cell phone
use among Respondent’s apprentices for the period of November 18, 2001, to September 21,
2002.)23 While Kolenda’s cell phone use dropped to 11 calls for the period in Respondent’s
January 2002, statement, he returned to 62 and 68 calls for the subsequent February and
March billing dates, but received no warning at that time. Beginning in April 2002, Respondent
had to pay small amounts of extra money on a monthly basis for Kolenda’s cell phone usage.
Yet, he did not receive a written warning about it until September 9, 2002, after Respondent was
alerted to his union activity. The written warning to Kolenda states “Further misuse of the phone
privilege could result in disciplinary action or termination.” Thus, the written warning for this
offense Respondent did not threaten Kolenda with automatic discharge.

During the period of April 21, to August 26, 2002, apprentice Wilcox averaged 46 calls a
month to Kolenda’s 43. For the statement date of April 21, 2002, Wilcox made 85 calls, at an
extra cost of $21.92 to Respondent. Yet, there is no contention that Wilcox, for whom there was
no evidence of union activity, ever received a warning for excessive cell phone usage. Wilcox
cost of the phone usage for the month of April was almost three times higher than any monthly
statement attributed to Ditmars.

Concerning Ditmars’ phone usage, he made 79 calls, as reflected in Respondent’s May
25, statement. Ditmars calls increased to 144 in Respondent’s June 21, statement. On July 17,
L. Bailey verbally counseled him about excessive cell phone usage. Respondent’s statement
for calls covering the period of June 17 through July 18, did not issue until July 21. However,
the statement for this period reveals Ditmars usage had increased to 221 calls. The vast
majority of these calls were made before Ditmars received the July 17 verbal counseling.
Ditmars was discharged on August 16. However, the August 26, phone bill reveals that despite
L. Bailey’s verbal counseling, Ditmars did not significantly cut back on his cell phone use in that
he made or received 152 calls during this billing period. Nevertheless, the evidence reveals
Respondent had no fixed policy on the amount of calls an employee could make, and that any
limitations on the amount of personal calls it tolerated from employees was not strictly enforced.
In this regard, Respondent had never even issued a written warning to any employee about cell
phone usage until after it learned employees were engaging in union activity. Taking into
consideration Respondent’s inconsistent application of its phone policy, I cannot find
Respondent has established it would have discharged “any employee” who engaged in the
conduct Ditmars engaged in concerning his cell phone usage.24 I therefore find Respondent
23 Respondent did not submit any bills into evidence, prior to the November 18, 2001,
statement.
24 In reaching this conclusion, I do not find that Respondent cannot discharge Ditmars, or
any other employee, for misuse of Respondent’s cell phone. I only find that Respondent has
not established it would have discharged Ditmars at the time it received his August 26 phone
bill, absent his union activity.

JD--72--03
Philadelphia, PA
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has not established a sufficient basis to bar Ditmars from reinstatement. See Tel Data Corp.,
supra. and Marshall Durbin Poultry Co., supra25.

CONCLUSIONS OF LAW

1. Respondent violated Section 8(a)(1) and (3) of the Act by:
a. On August 15, 2002, issuing a written warning dated August 14, 2002, to its
employee Thomas Ditmars because he engaged in union activities.
b. On August 15, 2002, placing a disciplinary memo in employee Thomas Ditmars’
file because he engaged in union activities.
c. On August 16, 2002, discharging employee Thomas Ditmars because he
engaged in union activities.
2. Respondent’s unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY

Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily discharged employee Thomas Ditmars must
offer him reinstatement and make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from August 16, 2002, the date of Ditmars’ discharge to the date
of a proper offer of reinstatement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended26

ORDER
Respondent, George P. Bailey & Sons, Inc., its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Issuing warnings, and file memos to employees because they engage in union
activities.
(b) Discharging employees because they engage in union activities.
(c) In any like or related manner restraining or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
25 As set forth above, Respondent tolerated repeated violations of its attendance policy by
its employees before it discharged anyone. Moreover, a former apprentice named Ford worked
for Respondent from May 2000, until he was discharged in November 2001. Ford’s discharge
memo states he worked for Respondent for 2 years with multiple customer complaints and no
advancement in his performance. It is stated in the memo, “we have given you multiple
opportunities to better yourself and still no advancement has been shown.” Thus, in the past
Respondent has shown a wide range of latitude prior to discharging an employee.
26 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 purposes.

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2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer employee Thomas Ditmars full
reinstatement to his former position or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or privileges previously
enjoyed.
(b) Make Thomas Ditmars 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 from the date of this Order, remove from its files any reference to the
unlawful written warning, file memo, and discharge of Thomas Ditmars and within 3 days
thereafter notify Ditmars in writing that this has been done and that the written warning, file
memo, and discharge 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 to be 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 Region 4, post at its facility in Bristol, Pennsylvania,
copies of the attached notice marked "Appendix B"27 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being signed by the 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.
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 on or after August
15, 2002.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C. July 2, 2003

_____________________
Eric M. Fine
Administrative Law Judge

27 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 Stated Court of Appeals Enforcing and Order of the
National Labor Relations Board.”

JD--72--03
APPENDIX B

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 issue written warnings or file memos to employees because they engage in
activities on behalf of the International Brotherhood of Electrical Workers, Local Union No. 269,
AFL-CIO, or any other labor organization.
WE WILL NOT discharge employees because they engage in union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL within 14 days of the Board’s Order, offer Thomas Ditmars 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 or privileges previously enjoyed.
WE WILL make Thomas Ditmars whole for any loss of earnings and other benefits he may
have suffered as a result of the unlawful discrimination against him in the manner instructed by
the National Labor Relations Board.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful written warning, file memo, and discharge of Thomas Ditmars and
within three days thereafter notify the him in writing that this has been done and that the written
warning, file memo, and discharge will not be used against him in any manner.

GEORGE P. BAILEY & SONS, 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.
615 Chestnut Street, One Independence Mall, 7th Floor, Philadelphia, PA 19106-4404(215) 597-7601, Hours: 8:30 a.m. to 5 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, (215) 597-7643.

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