J.S. Troup Electric, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 1009 (N.L.R.B. 2005)

J. S. TROUP ELECTRIC
344 NLRB No. 125
1009
J. S. Troup Electric, Inc. and Avi Israel. Case 3–CA–
24587
June 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 3, 2004, Administrative Law Judge Wil-
liam C. Kocol issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs1 and has decided to affirm the judge’s rulings,
findings,2 and conclusions and to adopt the recom-
mended Order.
The judge found that the Respondent violated Section
8(a)(1) and (3) of the Act by discharging Avi Israel for
his union activities. In reaching that conclusion, the
judge relied in part on Israel’s testimony, which he
broadly credited. The Respondent has not specifically
excepted to the judge’s unlawful discharge finding. It
has excepted, however, to the judge’s exclusion of evi-
dence purportedly showing that Israel was working while
receiving unemployment or worker’s compensation
benefits, allegedly in violation of State law, and that he
was untruthful with the relevant State agencies concern-
ing those matters. The Respondent contends that, under
Federal Rules of Evidence, 608(b), the judge should have
admitted the proffered evidence, because it would have
undermined Israel’s credibility. For the reasons dis-
cussed below, we find that the judge did not abuse his
discretion in excluding this evidence.

1 The General Counsel has moved to strike Exhibit A to the Respon-
dent’s brief in support of exceptions (consisting of the Respondent’s
posthearing memorandum to the judge). The General Counsel contends
that the exhibit contains matters outside the scope of the Respondent’s
exceptions, and therefore does not conform to Board Rules and Regula-
tions Sec. 102.46(c). Sec. 102.46(c) provides, in relevant part, that
“Any brief in support of exceptions shall contain no matter not included
within the scope of the exceptions[.]” We read the Respondent’s ex-
ceptions as at least implicitly excepting to the judge’s credibility find-
ings, and as the Respondent’s posthearing brief to the judge addresses
credibility, we shall deny the General Counsel’s motion and accept the
exhibit for factual background.
2 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. See also discussion in text
below.
Facts
At the hearing, the judge deferred ruling on the admis-
sibility of the proffered evidence until after the parties
rested their cases-in-chief, so that he could better deter-
mine “whether this evidence really is of the type that
would impugn the general credibility of the witness.”
Then, after listening to arguments on the issue, the judge
allowed the Respondent to make a detailed offer of
proof. In making the offer, Respondent’s counsel stated
that he intended not only to cross-examine Israel, but
also to examine several other witnesses (Israel’s wife, an
architect who allegedly worked with Israel after he was
discharged, and the vice president of a company that al-
legedly hired Israel after his discharge) and introduce a
number of documents, all concerning Israel’s alleged
employment while receiving unemployment and/or
worker’s compensation. The judge rejected the offer and
excluded the evidence.
Discussion
Under Section 10(b) of the Act and Section 102.39 of
the Board’s Rules and Regulations, the Federal Rules of
Evidence apply insofar as practicable to unfair labor pro-
ceedings under the Act. George Joseph Orchard Siding,
Inc., 325 NLRB 252, 254 (1998), enfd. NLRB v. George
Joseph Orchard Siding, Inc., 123 Fed. Appx. 746 (9th
Cir. 2004) (No. 03-71401) (unpublished). Federal Rules
of Evidence, 608(b) provides, in relevant part, that
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’ charac-
ter for truthfulness, other than conviction of crime as
provided in rule 609, may not be proved by extrinsic
evidence. They may, however, in the discretion of the
court, if probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness (1)
concerning the witness’ character for truthfulness or
untruthfulness . . . .
Two things are apparent from the plain text of the rule.
First, extrinsic evidence bearing on a witness’s credibility is
inadmissible unless it pertains to a criminal conviction.
Second, cross-examination of the witness on specific bad
acts which are relevant to the witness’ credibility is left to
the judge’s sound discretion. See, e.g., U.S. v. Martz, 964
F.2d 787, 789 (8th Cir. 1992), cert. denied 506 U.S. 1038
(1992). While the Advisory Committee Note cautions that
“[e]ffective cross-examination demands that some allow-
ance be made for going into matters of this kind” and Board
law is not inconsistent, see footnote 4, infra, the judge may
exclude such evidence “if its probative value is substantially
outweighed by . . . considerations of undue delay [or] waste
of time [.]” U.S. v. Atwell, 766 F.2d 416, 420 (10th Cir.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1010
1985), cert. denied 474 U.S. 921 (1985) (Rule 608(b) is
subject to Rule 403.) After such a cross-examination, how-
ever, the cross-examiner may not attempt to disprove the
witness’s answers by extrinsic evidence. U.S. v. Martz,
supra, 964 F.2d at 789. The purpose for barring extrinsic
evidence is to avoid holding mini-trials on peripherally re-
lated matters. Carter v. Hewitt, 617 F.2d 961, 971 (3d Cir.
1980). Applying these principles, we find that the judge did
not abuse his discretion under Rule 608(b) in excluding the
Respondent’s proffered evidence.
First, Respondent’s counsel made an elaborate and de-
tailed proffer concerning whether Israel was truthful with
the New York unemployment and worker’s compensa-
tion agencies. While the proffer included examining Is-
rael on this issue, most of the proffered evidence con-
sisted of documents and the testimony of witnesses other
than Israel (i.e., extrinsic evidence). Because this evi-
dence did not involve a criminal conviction, it was inad-
missible under Rule 608(b).3
Second, the judge did not act summarily. The judge
deferred ruling on counsel for the General Counsel’s
objection to cross-examination into Israel’s alleged in-
terim employment until he had heard all the evidence
bearing on Israel’s credibility. Compare Enterprise In-
dustrial Piping Co., 117 NLRB 995, 995 fn. 2 (1957),
enfd. J. J. White, Inc. v. NLRB, 252 F.2d 807 (3d Cir.
1958) (on the record presented the Board found trial ex-
aminer did not abuse discretion in refusing to permit
cross-examination concerning employees’ false state-
ments on unemployment insurance claim) with Vanguard
Oil & Service, 231 NLRB 146, 151 (1977) (Board re-
manded the case to the administrative law judge to take
evidence regarding the discriminatee’s failure to report
interim employment to the state unemployment compen-
sation authorities “and for reconsideration of Hester’s
credibility in light thereof.”) As a result, each of the fac-
tors that the judge relied on in crediting Israel’s testi-
mony—his demeanor as a witness, the internal consis-
tency of his testimony, the corroboration of his testimony
by other witnesses, and the pretextual nature of the testi-
mony of certain of the Respondent’s witnesses—would
have been apparent at the time the judge heard Respon-
dent’s proffer and denied introduction of the proffered
evidence. Thus, the judge was in a position to decide, as
he put it, “whether [the proffered] evidence, most of
which as noted was impermissible under Rule 608 really
is of the type that would impugn the general credibility
of the witness.” Given the judge’s comment, it is rea-
sonable to infer that the judge would have credited Israel

3 By excluding the evidence, moreover, the judge avoided holding a
mini-trial on at best peripherally-related matters, such as New York
unemployment compensation and worker’s compensation law.
even if evidence that he had been less than honest on his
unemployment or workers’ compensation forms had
been introduced.4
In sum, for the reasons set forth above, we find the
judge did not abuse his discretion in disallowing intro-
duction of the evidence Respondent proffered.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, J. S. Troup Electric, Inc.,
Blasdell, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Ron Scott, Esq., for the General Counsel.
Andrew P. Fleming, Esq. (Chiacchia & Fleming, LLP), of
Hamburg, New York, for the Respondent.
Richard D. Furlong, Esq. (Lipsitz, Green, Fahringer, Roll,
Salisbury & Cambria LLP), of Buffalo, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was heard in Buffalo, New York, on August 11–12, 2004. The
charge was filed by Avi Israel, an individual, on December 5,
2003.1 The complaint issued on January 30, 2004, and alleges
that J. S. Troup Electric, Inc. (Respondent) violated Section
8(a)(3) and (1) of the Act by discharging Israel on November 4.
Respondent filed a timely answer that denied that it had vio-
lated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with a place of business in Blas-
dell, New York, located near Buffalo, New York (Respondent’s
facility), has been engaged as an electrical contractor in the
construction industry doing commercial electrical work. Dur-

4 In other Board cases, misrepresentations similar to those at issue
here have been acknowledged as relevant, though not necessarily de-
terminative, in assessing the credibility of a witness. See, e.g., Van-
guard Oil & Service, 231 NLRB 146, 151 (1977); Birmingham Pub-
lishing Co., 118 NLRB 1380, 1384–1385 (1957), enfd. 262 F.2d 2 (5th
Cir. 1958); Harvey Aluminum, 142 NLRB 1041, 1057 (1963); and
Liberty Scrap Materials, Inc., 152 NLRB 480, 484 (1965).
In light of that fact, and the Advisory Committee Note’s recognition
that “[e]ffective cross-examination demands that some allowance be
made for going into matters of this kind,” Member Schaumber believes
that it would have been preferable for the judge to have disregarded the
elaborate proffer made by Respondent’s counsel, but nevertheless per-
mitted at least some cross-examination of Israel with respect to his
alleged misrepresentations to state authorities in connection with un-
employment and/or worker’s compensation benefits.
1 All dates are in 2003 unless otherwise indicated.
J. S. TROUP ELECTRIC 1011
ing the 12-month period ending December 31, 2003, Respon-
dent has provided services valued in excess of $50,000 to en-
terprises located within the State of New York that are directly
engaged in interstate commerce. 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 and that the International
Brotherhood of Electrical Workers, Local 41 (the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent operates as a nonunion electrical shop. John
Troup is Respondent’s president and David Hatten is vice
president. Troup moved to Florida in 2002 and Hatten was in
charge of the day-to-day operations at the facility. The number
of employees working for Respondent ranged from 5–6 to 10–
15.
Israel began working for Respondent in June 1996 as an
electrician. He was making $28 per hour when his employment
ended; this was about twice the rate that Respondent paid to
other employees. Respondent provided Israel with a van and
cell phone. Hatten stated, “Israel had been our top guy at the
company.” He also stated “Israel was trusted with taking care
of things in the field, especially if I was absent, meaning Israel
would make sure that the jobs were getting done.”
Charles Moore is an organizer for the Union. Over the years
Moore attempted to recruit Israel to become a union member
but his efforts were unsuccessful. The Union did successfully
persuade about five other employees to leave Respondent em-
ployment to work elsewhere and join the Union. In the late
summer in 2000 an apprentice working with Israel left Respon-
dent to become a union electrician. Shortly thereafter Hatten
told Israel that Troup wanted to know if he also was going to
leave Respondent and join the Union. Israel said he did not
intend to leave, but that he did want to talk with Troup concern-
ing his benefits. Israel then met with Troup. Troup asked Is-
rael if the Union had approached him and Israel said that it had
and that the union pay and benefits were very attractive to him.
Israel said he did not intend to leave Respondent but he wanted
his wages to be raised to the union pay rate and also wanted
better medical insurance. Troup agreed to bring Israel up to the
union pay scale over a 2-year period and he also agreed to pro-
vide Israel with better medical insurance. Troup told Israel that
he would get these improvements as long as he did not bring up
the subject of the Union. They discussed whether another em-
ployee was also going to join the Union and then Troup said the
next time he heard anything about a union from any worker the
employee would be fired. In June 2002, Israel received a $2-
per-hour wage increase to $28 per hour; that matched the in-
crease and hourly rate received by union employees in the area.
Apparently under the union contract another $2-per-hour in-
crease was due in June 2004, and sometime in about October
Israel reminded Hatten that he had not received an increase in
about 2 years and that he was due for one in June 2004. From
time-to-time Israel received literature from the Union and he
sometimes showed that information to Hatten.
In 2002 Respondent had an arrangement with Israel whereby
Israel could use the cell phone and cell phone service provided
by Respondent for his personal use at the cost of $50 per
month. Respondent regarded this as a benefit that it provided
to Israel. In January 2003 that arrangement ended when Israel
began paying for his personal usage of the cell phone. How-
ever, thereafter Israel again began using the company cell
phone line for personal calls. In September Troup called Israel
and complained about the calls that were being made in the
evening and on weekends using the company cell phone service
and Israel agreed to start paying the $50 per month again,
which he did for September and October. Apparently in an-
other call sometime in September, Troup called Israel from
Florida concerning Israel’s cell phone usage. Troup com-
plained how expensive Israel’s cell phone usage had become.
Israel explained that Hatten had been in and out of work be-
cause Hatten had been ill and as a result Israel had been run-
ning three projects plus he had been taking numerous calls from
contractors, vendors, and employees. Israel claimed to be
“running the company” during that time period and he was
using the cell phone to return many calls that were made to
him. Troup asked Israel to identify which calls were business
calls and Troup would pay Israel for them. During the same
time period Hatten asked Israel to review bills for his cell
phone usage since the beginning of the year but Israel refused
to do so. Hatten agreed with Israel, telling Israel that he felt
that the request for Israel to review the bills was ridiculous.
Originally Respondent had paid for the entire cost of Israel’s
dental insurance but in late 2002 Respondent had stopped pay-
ing for it and Israel had to do so. At that time Hatten explained
to Israel that dental insurance coverage was optional for em-
ployees. In early October Israel noticed the amount he paid for
dental insurance from his paycheck had increased. Israel raised
the matter with employee Nick Germanovich at work; Ger-
manovich said that he did not think he had dental insurance.
But Germanovich began complaining about a lack of hours and
asked Israel if he knew if there were other jobs that they would
be working on for Respondent; Germanovich expressed con-
cern about whether he was going to work over the winter. Is-
rael asked if Germanovich would ever consider joining a union
and Germanovich answered that he would. Israel also talked to
employees Ron Serrano and Sam Speciale who also expressed
an interest in joining a union. In mid or late October Israel
called Moore and told him that some workers on the job wanted
to set up a meeting with the Union. Moore answered that he
would find a location for the meeting. At that time Israel was
working mainly on the Voss Dental project; he was also finish-
ing several other projects.
Also in mid-October Moore called Respondent’s office and
spoke to an estimator. Later that day Troup called Moore and
said that Moore was a “lousy piece of shit” and said that if
Moore ever called the office again or talks to any of his people
anytime or any place he would come looking for Moore.2
On Friday, October 31 Israel took a coffee break with the
aforementioned employees and also employee Dicky Myers.
Israel asked them to come into a small room. Israel informed
them that he had spoken with Moore. The employees ex-

2 Troup admitted that he did speak with Moore and told Moore he
did want Moore to call the office or his employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1012
pressed their support for the notion of meeting with the Union
and they said that they were concerned about whether there was
enough work for them during the upcoming winter.3 Israel told
the employees that he hoped that they could join the Union as a
group and thereby remain working for Respondent instead of
quitting and working for a union-represented employer. He
explained how this had happened at an employer he had
worked for in the past.
Over that weekend Israel contacted employee Rusty Brown-
ing. Israel informed Browning about the developments con-
cerning the Union and Browning indicated that he supported
that effort. Browning said that he had not worked a full week
the previous week and was concerned about his job.
On Monday, November 3 Israel again met with the employ-
ees at the job during coffee break. Israel told the employees that
there was strength in numbers and that they had a better chance
joining the Union as a group rather than joining individually.
He also explained that he was not the organizer but only the
contact point between the group and Moore. Shortly after the
break Israel spoke with Hatten, who was at the jobsite that day.
Israel began “venting” his anger over the increase in the cost he
had to pay for dental insurance. He told Hatten that the in-
crease “really stinks” and that Troup was supposed to pay for
all of it but now he was paying for it. Hatten called an em-
ployee in the office and told her to recalculate the cost of the
dental insurance on a weekly basis rather than monthly so that
Israel’s cost would be spread out. Israel asked what was going
to happen to his medical costs and Hatten answered that most
likely the costs would increase in January and Israel would
have to pay the increase. Israel said that “stunk” because Troup
was supposed to pay for it. Israel said that he did not want to
pay those costs and he would not pay it.
The next day, November 4, Hatten arrived at the jobsite after
breaktime. He and Israel spoke about the status of the work on
the site in a friendly, routine manner. Hatten later left the site.
Around lunchtime Israel received a telephone call from Brown-
ing, the employee Israel had talked with over the weekend.
Browning said he did not want to be part of the union organiz-
ing effort. He explained that there were “too many guys with
big mouths” and he was afraid that Troup would find out and
he would get fired.4 After lunch Israel called the office to re-
port that he had injured his finger and asked to talk with Hatten.
The employee who answered the telephone said that Hatten was
speaking with Troup, so Israel asked that Hatten call him back.
About 15–20 minutes later Hatten did so. Unlike earlier in the
day when they spoke, Hatten’s tone was very somber. Hatten
asked Israel, “What are you doing?” Israel described what
work he was doing but Hatten said, “No, no, no, I want to know
what you are doing. What the hell are you doing. I just got off
the phone with John Troup, what are you doing?” Israel an-
swered that he did not know what Hatten meant. Hatten asked

3 At several points in his testimony Israel stated that the employees
were “enthusiastic” about joining the Union. Although I generally
credit Israel’s testimony as explained more fully below, I conclude that
this portion of his testimony is exaggerated.
4 This conversation was not received for the truth of the matter as-
serted by Browning but only for what he stated to Israel.
Israel to come to the office. Israel asked whether he should
take his personal tools out of the van he used; Hatten answered,
“Maybe you should.” After that conversation Israel asked the
employees on the site whether they had spoken to Hatten about
the union organizing effort and the employees assured him that
they had not done so.
When Israel arrived in Hatten’s office, Hatten was on the
telephone. Hatten then hung up the telephone, stood up, ex-
tended his hand and told Israel to give him the cell phone and
the keys to the van. Israel asked why and Hatten said that if he
had any questions he should call Troup. Israel asked about the
personal tools that he kept on the van and Hatten said Israel
could remove those tools right then. Israel asked if Hatten
could give him a ride home and Hatten said no, that it was not
Hatten’s problem. Hatten again told Israel to call Troup. Israel
said he would not do so, that Troup should be “man” enough to
call him and let him know what was going on. Israel then
called an employee at the Voss Dental jobsite and explained
that he thought he had just been fired and asked the employee
to gather Israel’s personal tools that were still at the site. Israel
also called wife, Julie, and told her that he thought he had just
been fired and asked her to come pick him up. Julie left her job
and drove to the facility where she encountered her husband
and Hatten. Israel was unloading his personal belongings from
the van. Israel repeatedly pressed Hatten to explain why he had
to give Hatten the keys to the van and the cell phone and what
it was all about. Hatten always responded that Israel had to call
Troup. On one occasion Israel asked if it was about the Union.
At that point Hatten’s facial expression changed and he said
that he did not know anything about that and Israel had to call
Troup. At another point Israel said that Hatten did not have to
stand there and watch him. Hatten said that he knew that Israel
was no thief but that he had to stay there. Israel unloaded his
tools and personals items such as photographs of his children
from the van. Hatten assured Israel that any of Israel’s personal
belongings that were left behind would be given to Israel later.
Israel commented that it might be a good time to have his her-
nia surgery and asked Hatten if there was going to be a problem
with the surgery and Hatten answered that no, that there should
be no problem with that. Israel asked about his vacation pay,
pay for that day, and COBRA entitlement and again Hatten said
that there would be no problem. Before they left Julie com-
pleted a worker’s compensation injury report on the injury to
Israel’s finger. Israel asked Hatten for that form and Hatten got
him the form. Israel asked Hatten for a copy of the completed
form and they went into the facility to make a copy. Hatten
asked an office employee to give Israel a COBRA application.
Israel asked that employee to mail his final paycheck stub to his
home. Israel said goodbye to that employee and another em-
ployee who was there at the time. He shook hands with Hatten
and said it was nice working with him and left.
The next morning Israel called Hatten and said that he
thought he had left some tools on the van. Israel asked again
what was going on and why was he let go and Hatten again
replied that Israel should call Troup. Israel said that he was
very disappointed in Hatten for not “sticking up” for him. Hat-
ten responded that he was disappointed at what he had heard.
Israel asked what had Hatten heard, but Hatten replied that
J. S. TROUP ELECTRIC 1013
Israel should call Troup. That same morning, as directed the
evening before by Hatten, Browning appeared at the Voss Den-
tal jobsite. That morning Hatten came to the jobsite and spoke
with Browning. Browning asked where Israel was, and Hatten
replied that Israel was no longer “with us.” Browning asked
what happened and Hatten said it was a mutual agreement.
Hatten told Browning that he was to take over Israel’s job on
the project. Hatten also spoke to Sam Speciale, who is related
to Israel by marriage, at the Voss Dental jobsite that day. Hat-
ten asked Speciale if Speciale had a problem with Israel not
being on the jobsite. Speciale said no and asked if Hatten had a
problem with him. Hatten answered no, unless Speciale makes
a problem. Speciale said that then they did not have a problem.
Moore and Israel met on November 6 at the union hall. Dur-
ing the course of that meeting Israel called Troup at his Florida
number. Israel left a message identifying himself and asking
that Troup call him back. Troup did not return the call.
The next day Israel again called Hatten. Israel mentioned
that he had called Troup the day before, but Troup had not yet
returned his call. Hatten said that Israel should not worry, that
Troup would return his call. The next week Hatten and Israel
met at a coffee shop where Hatten returned some tools to Israel.
They drank coffee and made small talk. On Saturday, Novem-
ber 15, Israel called Hatten and asked why he did not get paid
for November 3 and 4. Hatten said that he did not know that
Israel had not been paid for those days. Hatten said that he
could not deal with it anymore, that he had called Troup and
that Troup would call Israel. That afternoon Troup called Is-
rael. Troup said that he forbad Israel from calling the office or
talking to any employees. Troup said that if there was anything
Israel wanted, he should put it in writing and send it to Florida.
Israel explained that he had just called about his pay and asked
what was going on. Troup answered, “You know what it’s
about.” Israel asked if it was about the Union, and Troup re-
peated his previous reply. Troup indicated that he was not
interested in hearing any of Israel’s explanations. Later that
month Israel was in the hospital preparing for his surgery and
the hospital wanted his insurance carrier’s name, policy num-
ber, and address. Israel called Respondent’s office and asked
the office employee for the information. The employee said
that Troup was there and asked if Israel would like to talk to
him. Israel said not really but the next thing Troup was on the
telephone. Israel explained why he had called and Troup re-
plied that they did not run around for Israel in the office any
more. Israel explained that he was in the hospital and needed
the information. Troup gave Israel the name of the insurance
carrier, but when Israel asked for the policy number Troup told
Israel to find it himself.
III. CREDIBILITY RESOLUTIONS
Except as specifically indicated otherwise, the foregoing
facts are based on the credible testimony of Israel, Julie Israel,
Sam Speciale, and Moore. I recognize that I had to remind
Israel on several occasions to separate his subjective impres-
sions from what had occurred or was said during conversations,
but I am convinced he was able to do so after being reminded.
I also recognize that Israel was combative on cross-ex-
amination, but I conclude this was largely due to the repeatedly
argumentative nature of the questioning. Israel testified in
detail concerning the events and conversations and his de-
meanor impressed me as credible. Importantly, his testimony
was internally consistent. Portions of his testimony were also
corroborated by Moore, Speciale, and Julie Israel. Respondent,
in its brief, challenges Israel’s credibility by pointing to 13
alleged contradictions in his testimony. Many of the alleged
contradictions cited by Respondent merely recited testimonial
differences between Israel and Hatten and thus are not internal
contradictions within Israel’s testimony. The remaining mat-
ters cited by Respondent as contradictions made by Israel sim-
ply do not amount to contradictions at all. For example, Re-
spondent cites the testimony by Israel that the employees were
concerned about whether they would continue to have jobs with
Respondent yet they contacted the Union in the belief that the
Union could somehow make their jobs more secure. I find no
contradiction in this testimony; employees may believe, rightly
or wrongly, that a union may assist them in matters of job secu-
rity.
I have credited Browning’s testimony concerning what he
was told by Hatten on November 3 and 4. But I do not credit
his testimony that when Israel called him over the weekend
before November 4, he told Israel that he did not want to par-
ticipate in the Union effort. Browning appeared to be testifying
in a manner that was more concerned with not offending his
employer or risking his job than accurately conveying the facts.
I have considered Troup’s testimony and have determined
not to credit it except to the extent that it may corroborate the
facts set forth above. Troup testified that there were several
reasons why he told Hatten to have Israel turn in the cell phone
and the keys to the van. One was the matter of a punch list of
work not yet completed for the Science Museum project.
Troup testified that sometime in October, Israel called him and
told him that Science Museum job had been completed and
inspected and that everything was fine. Israel had worked as
the general foreman on that job. Another reason was the matter
of cell phone usage. Troup testified that he talked with Israel
about the “constant over-usage of the [cell] phone.” Troup
testified that midday on November 4 Hatten called him and said
that Israel was demanding a $2-per-hour pay raise the following
June and that Israel did not want to have to pay for his medical
and dental benefits and if he did have to pay for them he was
considering giving Hatten his 2-weeks’ notice. Hatten also said
that he had received a “pretty heavy” punch list on the Science
Museum job. Troup then instructed Hatten to have Israel bring
the van to the facility, turn in the cell phone and the keys to the
van, and to tell Israel to call him. Troup testified that he
wanted to discuss these matters with Israel. Troup explained
that he wanted Israel to return the cell phone because of over
usage and he wanted the van returned because he did not know
if Israel would be quitting and he did not want things missing.
Troup admitted he continued to consider Israel to be a valued
employee at this point. Later that day, Hatten and Troup again
spoke and Hatten reported that Israel had refused to call him.
About 2 weeks later, after Hatten had complained that Israel
had been constantly calling him, Troup called Israel and told
him to stop calling Hatten or the office and that if he had any
matters he wanted to raise he should do so in writing. Troup
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1014
testified that Respondent considered that Israel had quit when
he did not show up for work for 3 days. In a report filed with
the New York State Department of Labor concerning Israel’s
claim for unemployment compensation benefits, Troup asserted
that Israel quit when he did not appear for work “nor did he call
as to why he did not show up for work.” This statement is
plainly at odds with Hatten’s admission that Israel did call for
several days after November 4 and Troups’ own admission that
Hatten had complained to him that Israel had been calling Hat-
ten every day following November 4. Troup testified, if Israel
had called him he likely would have returned that cell phone
and van to Israel.
I have also considered Hatten’s testimony and here too I do
not credit this testimony except to the extent it corroborates the
facts described above. Hatten testified that, as requested by
Troup, sometime in September or October he asked Israel to
explain why the cell phone bill went up dramatically. Hatten
testified that he asked Israel to examine the bills but Israel re-
fused to do so and then the next day or so he reported Israel’s
refusal to Troup. However, Hatten’s testimony was often in
response to leading questions and I am uncertain whether Hat-
ten relayed the entire conversation with Israel or only selected
portions. Hatten testified that Israel brought up the subject of
his pay and benefits about once a month but Hatten could not
recall any specific conversation. Hatten “did not recall” being
on the Voss Dental job on November 3 but claimed that on
November 4 Israel complained that the cost of his dental insur-
ance had increased. According to Hatten, he explained to Israel
that Respondent did not pay for dental insurance but Israel
protested that he had a deal with Troup and he should not be
paying for dental insurance. After Israel showed him how
much had been deducted from his paycheck, Hatten called the
office because it was apparent that the amount had not been
correctly calculated. Israel then asked what would happen if
the cost of medical insurance went up, and Hatten answered
that Respondent was planning to pass the increase costs on to
the employees. According to Hatten, Israel said that if that
happened Hatten should consider Israel giving Hatten his no-
tice. Hatten asked whether Israel was jumping the gun because
any increase would not happen until January if it happened at
all and Israel replied that if the increase was passed on to him in
January, he would give his 2 weeks’ notice and would no
longer work there. Israel added, according to Hatten, that next
June he wanted a $2-per-hour raise and that matter was not
negotiable. The conversation then turned to the work at hand.
Hatten specifically denied that Israel raised the subject of the
Union during that conversation. Hatten continued, explaining
that he returned to the office and discovered a punch list of
work that needed to be done to complete the Science Museum
project. Hatten claimed that he did not want to have to con-
tinue to deal with Israel’s complaints and called Troup and
informed him of the days’ events as they related to Israel.
According to Hatten, Troup replied between the matters he
reported, and Israel’s cell phone usage, “and the van,” he
wanted to talk to Israel. Troup instructed Hatten to have Israel
turn in the keys to the van and cell phone and tell Israel to call
him immediately. Hatten admitted that Israel could not per-
form his duties as a general foreman without the van. Later,
after Israel had come to the office and turned in the keys and
cell phone, Hatten testified that Israel “asked if he should
take—If he could take his stuff out of the truck and I said,
yeah.” Hatten denied that he told or suggested to Israel to
empty the van. Hatten did admit that he told Israel that he
knew that Israel was not a thief but that he had to watch Israel
unload the van anyway. Hatten denied that Israel raised the
subject of the Union. Hatten testified that after Israel left that
day he was hoping that Israel would return to work, but Hatten
did not explain how this would happen given the fact that Israel
could not realistically perform his work unless the van and the
cell phone were returned to him. After Respondent initially
completed its direct examination of Hatten and after a
lunchbreak, I granted Respondent’s request to ask Hatten addi-
tional questions. At that point Hatten testified that while Israel
was emptying his van that day Israel said that as long as he got
his 2 weeks’ vacation pay they should consider this “just a
friendly parting of the ways.” Yet in the two pretrial affidavits
that Hatten gave to the Board, he made no mention of such
comments by Israel. Hatten also testified that the first he
learned that Israel was contending that he was terminated be-
cause of his union activities was when he received the charge in
this case. He testified that before that, no employee ever told
him that there were union activities going on.
As can be seen from the recitation of the testimony of Troup
and Hatten, between the two of them they gave four reasons
why they decided to have Israel turn in the keys to the van and
the cell phone. One reason, according to Hatten, was Troup’s
concern about “the van.” Hatten explained that about 6 months
earlier Troup had been concerned that employees were using
the vans for personal side jobs as reflected in the amount of
gasoline charged on the credit card. Hatten commented that
while he did not have such a problem with Israel’s van usage,
he passed on Troup’s concern to Israel and told him that he was
not to use the van for side jobs. Hatten further admitted that he
had no reason to believe that Israel disobeyed that directive and
that he considered the matter resolved months before the events
of November 4. Hatten further admitted that there was no
documentation in Israel’s personnel file relating to his alleged
abuse in using the van Respondent provided to him even
though Respondent’s handbook sets forth a policy for placing
letters in employee personnel files when they commit acts con-
sidered by Respondent to be egregious. Under these circum-
stances I conclude that Troup’s alleged concern about “the van”
was retrieved from the storage bin in an effort to disguise an-
other reason that would explain Respondent’s conduct.
A second reason given was Israel’s “constant over-usage of
the [cell] phone.” Yet Respondent received the last bill for cell
phone shortly after October 10 and Troup did not explain why
he waited until November 4 to act on this alleged problem. Nor
did Respondent explain how the cell phone usage records intro-
duced into evidence buttressed its position. That is, Respon-
dent did not identify which calls it considered to be personal
and I am unable to do so from my own examination of those
records. And, as described above, it appears the problem had
been resolved when Respondent again began accepting pay-
ments of $50 per month from Israel to cover the personal calls
J. S. TROUP ELECTRIC 1015
that he made. I conclude it was something other than the cell
phone usage that prompted Troup into action on November 4.
A third reason was the punch list for the Science Museum
project. But Hatten admitted that punch lists are common and
there is no evidence that Respondent reacted negatively to them
in the past. While Hatten testified that it was the content of
Science Museum project punch list that concerned him, it is
significant that he did not first ask Israel, his most competent
employee, about the punch list. Rather, according to Hatten’s
testimony he first complained about it directly to Troup. Under
these circumstances I conclude that the punch list matter was a
convenient pretext used by Respondent to attempt to justify its
treatment of Israel.
Finally, Hatten and Troup indicated that they relied on the
fact that Israel was again complaining about his benefits and
salary in that he wanted parity with the union scale. However,
the record indicates that Israel had done this repeatedly during
his employment with Respondent and had suffered no negative
consequences. His most recent complaint to Hatten had oc-
curred on November 3 and by the next day it seemed Hatten
had moved on as he did not raise the matter with Israel when
they talked on November 4. Neither Troup nor Hatten offered
a credible explanation of why this time Israel’s complaint could
no longer be tolerated.5
IV. LEGAL ANALYSIS
The first issue I address is whether Israel quit or whether he
was fired.6 In doing so I apply the standard used by the Board
and assess whether Respondent’s words and conduct would
lead a reasonably prudent employee to conclude that her em-
ployment had been terminated. Kolka Tables, 335 NLRB 844,
846–847 (2001). It is important to note at the outset that Re-
spondent does not contend that Israel quit on November 4;
rather it contends that it considered Israel to have quit when he
did not appear for work for the 3 days following November 4.
Here the evidence shows that Israel was called to the office and
told to return Respondent’s cell phone, the keys to Respon-
dent’s van, and to remove his personal tools and other items
from the van. The record is clear that Israel could not perform
his duties for Respondent without his personal tools, the phone,
and the van. Moreover, Hatten and Israel discussed matters
such as Israel’s accrued vacation time, his pay for his last day
of work, and how he would receive his final pay stub. It is
abundantly clear that under these circumstances a prudent em-
ployee could reasonable believe he had been terminated. Hat-
ten made matters worse when he failed to directly respond to
Israel’s inquiries as to why he was being fired by instructing
Israel to call Troup. Yet when Israel did call Troup 2 days later
and left a message, his call went unanswered. Finally, when

5 In its brief Respondent seeks to fill this gap by asserting that Hat-
ten’s health problems caused him to no longer be willing to bear the
problems created by Israel. This argument is clearly created after-the-
fact and only serves to further undermine Respondent’s case.
6 At the hearing Respondent contended that it could establish that Is-
rael committed perjury by working after November 4 and at the same
time receiving unemployment compensation. Respondent does not
renew this argument in its brief. In any event I conclude Respondent
has failed to prove this contention.
Troup and Israel did speak on November 15, Troup’s only ex-
planation to Israel was that Israel knew what it was about. So if
there was any ambiguity as to whether Israel had been fired,
Respondent had opportunities to clarify the matter but it failed
to do so.
Under these circumstances it follows that I must reject Re-
spondent’s contention that Israel quit when he did not appear
for work on November 5–7. Israel was not expected to return
to work on those days because he had been fired on November
4. When Israel called Troup on November 6—within the 3-day
period—Troup failed to return the call.
I apply the legal analysis set forth 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
Corp., 462 U.S. 393 (1983) and Manno Electric, 321 NLRB
278 (1996) to determine whether Israel was unlawfully dis-
charged. The burden of proof rests with the General Counsel to
establish the necessary elements to meet his initial burden. Des
Moines Register & Tribune, 339 NLRB 1035, 1037 (2003). In
this case I have concluded above that Israel engaged in union
activity by soliciting his coworkers to support the Union and by
contacting the Union to gain representation. There is no direct
evidence that Respondent knew of these activities and only
some evidence that it harbored animus against them, but these
elements may be established by circumstantial evidence. Vul-
can Waterproofing Co., 327 NLRB 1100, 1109–1110 (1999).
The Board has inferred unlawful motive where the employer’s
action is “baseless, unreasonable, or so contrived as to raise a
presumption of unlawful motive.” Montgomery Ward, 316
NLRB 1248, 1253 (1995). See also ADS Electric Co., 339
NLRB 1020, 1023 (2003) and Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Direct evidence of
antiunion animus is not required; it can be inferred from cir-
cumstantial evidence based on the record as a whole. Abbey’s
Transportation Services, 284 NLRB 698, 701 (1987), enfd. 837
F.2d 575 (2d Cir. 1988). The same set of circumstances may
establish both employer knowledge and unlawful motive.
NLRB v. Long Island Airport Limousine Service, 468 F.2d 292
(2d Cir. 1972).
It should be recalled that in the late summer in 2000 Troup
told Israel that the next time he heard anything about a union
from any worker, the employee would be fired. Although this
statement occurred over 3 years before Israel was fired it is
nonetheless some direct evidence of unlawful union animus.
More recently, in mid-October Troup called Moore and said
that Moore was a “lousy piece of shit” and said that if Moore
ever called the office again or talked to any of his people any-
time or any place, he would come looking for Moore. This too
is evidence of unlawful union animus.
In this case the timing of Israel’s discharge strongly supports
the finding that Respondent knew of Israel’s union activities
and Israel was discharged because of them. By Friday, October
31 Israel had lined up employee support for the Union, met
with the employees as a group, and had contacted the Union.
He continued those activities over the weekend and on the
morning of November 3. Israel was fired the next day, No-
vember 4. The abruptness of the termination also supports the
inference of an unlawful termination. Here, Israel was called
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1016
midday to return to Respondent’s facility where he was termi-
nated midweek.
During the conversation where Hatten instructed Israel to
come to the office on November 4, Hatten asked Israel “What
are you doing?” Then Israel described what work he was doing
but Hatten said “No, no, no, I want to know what you are do-
ing. What the hell are you doing. I just got off the phone with
John Troup, what are you doing?” The next day Hatten told
Israel that he was disappointed at what he had heard about Is-
rael. These remarks are evidence that Hatten had learned of
some new concern about Israel from Troup and I infer under
these circumstances that the new concern was Israel’s union
activities.
Finally, as described above I have rejected as pretexts the
explanations given by Respondent as to why it decided to ask
Israel to turn in the keys to the van and the cell phone. Under
these circumstances I make the inference that the real reason
was an unlawful one—that Israel had begun to organize the
employees to join the Union.
Taking into account all these circumstances, I conclude that
the General Counsel has met his initial burden under Wright
Line. Turning to Respondent’s case, it is important to note that
Respondent does not contend that Israel was fired because he
failed to follow Hatten’s instructions to call Troup. Rather,
Respondent’s position is that Israel quit, a position that I have
rejected above. It follows that Respondent has failed to meet
its burden under Wright Line. Teamsters Local 657 (Texia
Productions, Inc.).
CONCLUSION OF LAW
By discharging Avi Israel because he engaged in union activ-
ity, Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent having discrimina-
torily discharged Avi Israel, must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
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 conclusion of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, J. S. Troup Electric, Inc., Blasdell, New
York, its officers, agents, successors, and assigns, shall

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting the International Brotherhood of Electri-
cal Workers, Local 41 or any other union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Avi Israel 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 previ-
ously enjoyed.
(b) Make Avi Israel 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 the Decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify the employee in writing that this
has been done and that the discharge will not be used against
him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Blasdell, New York, copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to 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 employ-
ees employed by the Respondent at any time since November 4,
2003.
(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.

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
J. S. TROUP ELECTRIC 1017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT discharge or otherwise discriminate against any
of you for supporting the International Brotherhood of Electri-
cal Workers, Local 41 or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Avi Israel 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 previ-
ously enjoyed.
WE WILL make Avi Israel whole for any loss of earnings and
other benefits resulting from his discharge, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Avi
Israel, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not
be used against him in any way.
J. S. TROUP ELECTRIC, INC.