St. John's Construction Corporation

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 471 (N.L.R.B. 1981)

ST. JOHN'S CONSTRUCTION CORPORATION
St. John's Construction Corporation and United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Cases 29-CA-7666 and
29-CA-7677
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 28, 1981, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein. 3
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In finding that President Lukas and Production Manager Golden un-
lawfully interrogated and threatened employee Overton, the Administra-
tive Law Judge inadvertently stated that former Supervisor Middleton
also engaged in such activities. In describing the arrangement whereby
former Supervisor Rogers purchased his truck from Respondent, the Ad-
ministrative Law Judge stated he paid 20 percent of his weekly revenues
or at least $300 a week, rather than the lesser of these two amounts. In
describing the July or August 1979 discussion between Lukas and Rogers
regarding the possibility of subcontracting, the Administrative Law
Judge stated that Lukas told Rogers to let it slide, rather than that
Rogers let it slide. These inadvertent errors are insufficient to affect our
decision.
2 In adopting the Administrative Law Judge's conclusion that Re-
spondent's discharge of 19 employees on January 2, 1980, and subsequent
subcontracting of its work violated Sec. 8(aXI) and (3) of the Act, we
emphasize that Respondent took this action not only because it was
aware of the employees' interest in affiliation with the Carpenters and
sought to avoid the anticipated consequences of their further union activ-
ity on behalf of the Carpenters, but also, as with the threats and promises
it made in violation of Sec. 8(aXI), because it opposed union organization
generally.
In his Conclusion of Law 3, the Administrative Law Judge found that
Supervisors Lukas, Golden, Middleton, and Murray made certain unlaw-
ful promises of benefits in November and December 1979, in violation of
Sec. 8(aXl) of the Act. However, the record evidence shows that only
Lukas engaged in such activity, and only in December 1979. Further-
more, although the Administrative Law Judge found that Lukas violated
Sec. 8(aXl) by creating an impression of surveillance, he failed to include
this finding in his Conclusions of Law or to provide a remedy therefor in
his recommended Order. We shall amend his Conclusions of Law and
recommended Order accordingly.
' Member Jenkins would provide interest on the backpay award in ac-
cordance with his partial dissent in Olympic Medical Corporation. 250
NLRB 146 (1980).
258 NLRB No. 67
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusions of Law 4 and 5:
"4. Respondent, by statements of its Supervisor
Lukas in December 1979, wherein it offered and
promised employees increased medical benefits, job
advancement opportunities, and opportunities to
make more money, in order to induce them to re-
frain from supporting or giving assistance to any of
the said labor organizations, made unlawful prom-
ises of benefits in violation of Section 8(a)(1) of the
Act.
"5. By warning and directing its employees, in
November and December 1979, to refrain from be-
coming or remaining members of the Carpenters
Union or Local No. 1, by threatening to go out of
business, close the plant, subcontract unit oper-
ations, and discharge employees, and by creating
the impression of surveillance of the employees'
union activities, in order to have such employees
refrain from giving support or assistance to the
above labor organizations, or either of them, Re-
spondent violated Section 8(a)(l) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
St. John's Construction Corporation, Hempstead,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) Warning, directing, or threatening its em-
ployees with discharge, plant closure, subcontract-
ing of work, or other reprisals, and creating the im-
pression of surveillance of its employees' union ac-
tivities, in order to cause them to refrain from be-
coming or remaining members of any labor organi-
zation or giving such labor organization their sup-
port or assistance."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or
activities on behalf of Local No. 1, Insulation,
Siding, Home Improvements Union, or United
471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Carpenters and Joiners of
America, AFL-CIO, or either of them, or any
other labor organization, by subcontracting
work, discharging our employees, or in any
other manner discriminating against them in
regard to their wages, hours, hire, or tenure of
employment, or any other term or condition of
employment.
WE WILL NOT coercively interrogate our
employees.
WE WILL NOT promise our employees medi-
cal benefits, job advancement opportunities, or
other improvements in their working condi-
tions to induce them to refrain from engaging
in or supporting union activities.
WE WILL NOT warn, direct, or threaten our
employees with discharge, plant closure, sub-
contracting, or other reprisals or create the im-
pression of surveillance of our employees'
union activities, in order to cause them to re-
frain from becoming or remaining members of
any labor organization or giving any labor or-
ganization its support or assistance.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under Section 7 of
the National Labor Relations Act, as amended.
WE WILL offer to the employees named
below immediate and full reinstatement to
their former jobs, without loss of seniority or
other privileges, or, if such jobs no longer
exist, to substantially equivalent jobs, and WE
WILL make them whole for any loss of pay,
with interest, they may have suffered because
of their being unlawfully discharged:
Richard O'Keeffe
Gary Rogers
Joseph Balado
Pablo Soto
Thomas Barcena
D. McIntosh
Tom Taggart
Milton Mooney
Michael Phillips
Robert Romeo
Fred Kirk
Rich Fordham
Stephen Pellegrino
Richard Bennett
Michael McHenry
Rudolph Harper
James Williams
Thomas Quinn
Benjamin Faron
Kenneth Lukas
WE WILL reestablish our service and truck-
ing operations as such operations existed on
and before January 2, 1980, severing, if neces-
sary, our subcontracting agreements and oper-
ations.
ST. JOHN'S CONSTRUCTION CORPORA-
TION
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: This
consolidated proceeding was heard in Brooklyn, New
York, on January 12 and 13, 1981. The charge in Case
29-CA-7666 was filed and served by the United Brother-
hood of Carpenters and Joiners of America, AFL-CIO
(herein called the Carpenters Union or Carpenters), on
December 26, 1979. The charge in Case 29-CA-7677
was filed and served by the Carpenters Union on Janu-
ary 3, 1980. On February 29, 1980, the Regional Direc-
tor for Region 29, National Labor Relations Board,
Brooklyn, New York, acting for and on behalf of the
General Counsel, issued a consolidated complaint alleg-
ing violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, wherein St. John's
Construction Corporation, herein called Respondent, en-
gaged in various acts of independent violation of Section
8(a)(1) including coercive interrogation of, unlawful
promises of benefits and unlawful warnings of discharge,
plant closure, subcontracting, and other reprisals against,
its employees. The complaint also alleges violation of
Section 8(a)(3) and (1) in Respondent's unlawful dis-
charge of two employees (Salvator Palisi and Richard
O'Keeffe, respectively) on December 7 and 8, 1979;' the
unlawful discharge on or about January 2, 1980, of 13
named employees (at the hearing, by amendment, the
number was increased to 19 named employees); and Re-
spondent's entering into subcontracting agreements on or
about January 2, 1980, in furtherance of the unlawful dis-
charge of its 19 employees.
With Respondent and the General Counsel represented
by counsel at the hearing, the parties were provided op-
portunity to present written and oral evidence, to make
argument and motions on the record, to call, examine,
and cross-examine witnesses, and, at the conclusion of
the hearing, to make closing argument. Counsel for Re-
spondent and the General Counsel did make oral argu-
ment. No post-hearing briefs were submitted although
opportunity therefor was provided.
Upon the entire record, including my careful observa-
tion of the witnesses as they testified, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and I find
that Respondent, a New York corporation with a place
of business at 127 Bedell Street, County of Nassau,
Town of Hempstead, New York, is engaged in the busi-
ness of installing home insulation and related services.
During the year preceding issuance of complaint, a rep-
resentative period of its annual operations, Respondent
derived gross annual revenue in excess of $500,000 and
purchased goods and materials valued at in excess of
$50,000 from enterprises located in the State of New
' The allegation regarding Palisi's unlawful discharge was withdrawn
at the hearing.
472
ST. JOHN'S CONSTRUCTION CORPORATION
York which enterprises received said goods and materi-
als in interstate commerce directly from States of the
United States other than the State of New York. At the
hearing, Respondent admitted and I find that, at all mate-
rial times, it was an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, and Respondent admits, that
the above-captioned United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
The complaint alleges, but Respondent denies, that
Local No. 1, Insulation, Siding and Home Improvements
Union, herein called Local No. 1, is a labor organization
within the meaning of Section 2(5) of the Act.
Joseph S. Brown, at the time of the hearing president
and business manager of Local 1038, United Brother-
hood of Carpenters, testified that in September 1979 he
organized Local No. 1, whose purpose was to organize
and represent employees of employers engaged in the in-
sulation and siding installation business in order to give
them a bargaining agent and provide them with benefits
including hospitalization insurance and higher wage
rates. Concerning this purpose, he contacted an official
of the Carpenters Union, Joseph Lia, and met with him
in early October 1979. As early as that time, Brown was
seeking affiliation with the Carpenters Union, but decid-
ed in the meantime to form Local No. 1. In October
1979, Lia told him to print Local No. I cards to be dis-
tributed among employees and told him what to place on
the cards. These cards were printed in or about October
1979 (G.C. Exh. 2) and provide, inter alia, that the signer
desires to become a member of and designates Local No.
I, to represent the signer in all negotiations for collective
bargaining and better working conditions. In November
and December 1979 and thereafter, Local No. 1 held
meetings of employees wherein they discussed benefits
and wage rates. As a consequence of these meetings and
the distribution of membership application cards among
the employees of Respondent, on November 26, 1979,
Local No. I filed a petition for certification of repre-
sentative in Region 29 naming Respondent as the em-
ployer and requesting certification as statutory repre-
sentative of its insulation employees at the 127 Bedell
Street, Hempstead, New York, location. In view of my
findings that Local No. 1 existed for the purposes of or-
ganizing and representing employees, including those of
Respondent, for improvement in their working condi-
tions, including wages and hospitalization, and, indeed,
held meetings among employees to discuss, and filed a
petition for certification to secure, these aims, I conclude
that Local No. 1, at all times material on and after Octo-
ber 1979 and through January 1980, in the absence of
contrary evidence, was a labor organization within the
meaning of Section 2(5) of the Act. N.L.R.B. v. Cabot
Carbon Company and Cabot Shops, Inc., 360 U.S. 203
(1959).
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since its inception in or about 1976 Respondent has
been engaged principally in the business of injecting insu-
lation, principally urea-formaldehyde foam, into the wall
spaces of residential and commercial buildings. In the
period following August 1979, it operated five trucks,
each of which ordinarily carried a foreman and four, but
sometimes five, employees. Respondent's five foremen,
Ed Murray, Gene Middleton, Ron Rogers, Bob Bennett,
and Bob Macheski, employed in the period August
through December 1979, were admitted to be supervisors
and Respondent's agents within the meaning of the Act.
Above them in Respondent's hierarchy, admitted to be
supervisors and Respondent's agents within the meaning
of the Act, were Tim Golden, Respondent's production
manager; Michael Mard, the general manager; and final-
ly, Respondent's president and chief operating officer,
Sidney Lukas.
In December 1979 and early January 1980, prior to
subcontracting out its insulation work, as later described
herein, Respondent had about 19 employees engaged in
the installation of insulation and two other employees
used as "service men." The two service men, Toma-
cheski and Overton, were troubleshooters who did not
work regularly on insulation jobs, but went to those jobs
when trouble arose where they made various repairs and
corrections in the work.
Respondent stipulated that its employees engaged in
insulation were paid on a daily average basis of $50 and
that the service men were paid about $60 per day. It was
stipulated by the parties that 26 employees signed Local
No. I cards on and between November 19 and 21, 1979.2
These cards were used to support a petition for certifica-
tion filed on November 26, 1979, by Local No. I in Case
29-RC-4791. Respondent concedes that within several
days after the filing of this petition Lukas knew of union
activity among its employees.
It was also stipulated that, on December 10 and 11, 18
of its employees signed cards for the Carpenters Union;
and that on January 3, 1980, the Carpenters Union, in
Case 29-RC-4839, filed a petition for certification as
statutory bargaining representative of all of Respondent's
production and maintenance shipping and receiving em-
ployees, including truckdrivers, employed at the Bedell
Street, Hempstead, New York, location.
It is uncontested that on December 31, 1979, after a
hearing, the Regional Director for Region 29 issued a
Decision and Order in Case 29-RC-4791 wherein he dis-
missed the petition filed by Local No. 1, principally on
the ground that the direct or indirect ownership interests
of Brown, Local No. I business agent, in a competing
business constituted a sufficient conflict of interest as to
disqualify the petitioner from representing the employees
of Respondent (Resp. Exh. 1).3 The Regional Director's
2 The record does not account for the number of unit employees on
these dates in November 1979.
3 The Regional Director, inter alia, cited Bausch d Lomb Optical Com-
pany, 108 NLRB 1555, 1559 (1954). As a matter of logical and legal se-
Continued
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disposition did not relate to the question of whether
Local No. I was a labor organization within the meaning
of the Act. The Regional Director's Decision and Order,
however, does disclose that, at the hearing, Local No. I
moved to amend its petition to show its affiliation with
the Carpenters Union. The motion was denied at that
time because the affiliation had not been "consummated."
In addition, the decision notes that Local No. I submit-
ted a post-hearing exhibit, a letter dated December 7,
1979, from Joseph Lia, as above noted an agent of the
Carpenters Union, which states that a Carpenters Union
charter had not been yet issued to Local No. 1 but was
"in the process of being issued" (Resp. Exh. 1, p. 3, fn.
2).
As above noted, in or about November 19 through 21,
1979, 26 membership cards were distributed among and
signed by employees for Local No. 1, chiefly through
employees Salvator Palisi and Richard O'Keeffe.
Brown testified that after the petition was filed in Case
29-RC-4791 on November 26, 1979, when he telephoned
Lukas at Lukas' office, identified himself as the business
agent of Local No. 1, told Lukas that he was organizing
Respondent's employees, and requested that they sit
down and negotiate, Lukas told him that there would be
no negotiations and that there would be no union in his
shop. Brown testified that he was "pretty sure" that this
was the substance of the conversation. Lukas denied any
such conversation at any time with that subject matter
but admitted that there was a conversation in February
or March in which Brown asked his cooperation with
regard to certain industry matters. My observation of
Brown as he testified and the tenor of his recollection of
this conversation ("pretty sure") might ordinarily lead
me to discredit Brown and credit Lukas' denial. The
clear preponderance of other credible evidence, howev-
er, would lead me to credit Brown. Samuel Ruggiano,
general representative of the Carpenters Union, credibly
testified that, in December 1979, Brown told him that he
had telephoned Lukas; that Lukas told him that there
would be no union in Respondent's plant and that Brown
would not represent anybody in the plant. Since nothing
in this conversation related to any alleged unfair labor
practice and since the General Counsel's purpose in
proving the conversation would show only Respondent's
notice of union activity among its employees and its
animus, both of which appeared without denial on this
record, I need not resolve the credibility issue posed by
Brown's testimony, partially corroborated by Ruggiano,
and Lukas' denial.4
I. Alleged independent 8(a)(1) violations
The complaint alleges that, in or about the middle of
December 1979, Respondent, by its president, Lukas, en-
gaged in acts of unlawful interrogation, made unlawful
quence, had the Regional Director decided that Local No. I was not a
statutory labor organization, he would not have reached the conflict-of-
interest issue.
I do, however, credit Ruggiano's testimony that he met with Brown
in late November 1979, at the office of Local 385 of the Carpenters
Union in New York and that he thereafter met with Brown at a union
meeting called by Brown on December 10, 1979, when the Carpenters
cards were executed, as above noted.
promises of benefits, engaged in unlawful warnings and
threats to employees relating to their being discharged,
plant closure, and subcontracting if they engaged in
union activities or assisted Local No. 1 or the Carpen-
ters.
Various of Respondent's employees credibly testified,
without contradiction, concerning unlawful acts of Lukas
and other of Respondent's supervisors. Thus, Rudolph
Harper, an insulation installer, testified that, after he
signed his Local No. 1 card on November 21, 1979, but
before Lukas' December 10, 1979, speech to all employ-
ees (as described below), Production Manager Tim
Golden called him into the office at or about 7:30 p.m.
and asked him what was his position on the Union.
When Harper told him that he did not know, Golden
told him, "You could get hurt," and that Respondent
was "unorganized and the Union is not coming in."5 I
find that Golden's statements to Harper constituted coer-
cive interrogation and threats of reprisal in violation of
Section 8(a)(1) of the Act. The fact that these matters
were not specifically alleged in the complaint is immate-
rial since they were fully litigated without objection by
Respondent.
Similarly, Harper testified that, the morning after his
conversation with Golden, Supervisor Gene Middleton
asked if he had signed a card, and when Harper evaded
the question, told him to get together with coemployees
and "back off the union"; that the Union does nothing
but "break" companies. Middleton also said that Harper
was "going nowhere [with the Union]" and that "you're
going to be on the outside." Although this matter, as in
the case of Golden's interrogations and threats to
Harper, was not specifically alleged in the complaint, it
was fully litigated without objection by Respondent and
I find that Middleton's statements, like Golden's repre-
sent coercive interrogation with regard to Harper having
signed a card as well as a warning of reprisals, including
discharge, if Harper and the other employees persisted in
their support of Local No. 1, all in violation of Section
8(a)(l) of the Act.
Lastly, Chester Overton, a serviceman, credibly testi-
fied 6 that in or about the morning of November 28, 1979,
about I week after he signed his card for Local No. I on
November 21, Supervisor Tim Golden told him that
President Lukas wanted to see him in his office. He went
into Lukas' office where Lukas asked him if he had
signed a union card and told him not to be afraid of an-
swering because Lukas knew the names of some of the
people who had signed the cards. After Overton falsely
5 Such testimony tends to corroborate Brown's testimony concerning
his late November 1979 telephone conversation with Lukas and to dis-
credit Lukas' denial.
6 Unlike all other witnesses called by the General Counsel, Overton, an
admitted Local No. I card signer, is not an alleged discriminatee and
therefore has no financial interest in the instant proceeding. Counsel for
Respondent argued that all of the General Counsel's witnesses. requested
by Brown to testify pursuant to a communication from him, were subject
to conflicts of interest and therefore their testimony should not be cred-
ited. The alleged conflict was that Brown's communication to them sug-
gested that they would receive backpay for their being unlawfully dis-
charged. I do not find that Brown made any promise of "benefit" other
than the backpay which the Act might allow if the General Counsel's
case was successful.
474
ST. JOHN'S CONSTRUCTION CORPORATION
denied that he had signed the card, Lukas told him that
he knew that Richie Fordham (another employee) had
signed a card because he had just finished speaking to
Fordham. Lukas then told Overton that the Union
would not benefit anybody and that Respondent "wasn't
having one coming in."
Overton then left Lukas' office and waited in Produc-
tion Manager Golden's office for a work assignment. At
or about 9 a.m., Golden asked him what he knew of the
Union. Overton answered that he knew only that a union
was trying to come in. Golden then asked him how he
felt about the Union and Overton answered that he was
not out to hurt anybody who was trying to better him-
self. Golden then nodded his head.
As in the case of Harper, Respondent failed to deny
Overton's patently credible testimony regarding any of
these coercive interrogations and threats by Supervisors
Lukas, Middleton, and Golden. I conclude that President
Lukas and Production Manager Tim Golden, on the
above statements and conversations, unlawfully and co-
ercively interrogated Overton concerning his union ac-
tivities, and manifested an impression of surveillance
over union activities of employees, and unlawfully dis-
paraged the Union and warned Overton against support-
ing it, all in violation of Section 8(a)(1) of the Act.
Overton also testified that he and the other service-
man, George Tomacheski, were retained when the 19 in-
stallers were terminated on January 2, 1980. They re-
mained as Respondent's sole employees (other than office
clericals) and performed the same work as previously,
were paid by Respondent but repaired work performed
by the subcontractors as hereafter described. In the
period January and February 1980, there was no slow-
down in work (albeit performed by subcontractors and
their employees) and they all were "busy as ever."
The Regional Director's December 31, 1979, Decision
and Order dismissing the November 26, 1979, petition in
Case 29-RC-4791 notes that Michael Mard, Respond-
ent's general manager, in a telephone conversation of
November 30, 1979, discovered Joseph Brown's conflict-
ing business interests which showed him to be a competi-
tor of Respondent. The record before me does not show
any earlier knowledge by Respondent of Brown's status
as a potential business competitor. On the basis of the
record, I conclude that Respondent had no knowledge of
Brown's status as a business competitor of Respondent at
the time that the above coercive interrogations and
threats of reprisal were made to Overton and Harper, its
employees. I further conclude that, in any event, in these
conversations neither Lukas nor any of his subordinate
supervisors mentioned to these employees whom they
were unlawfully interrogating and threatening that
Brown was or might be a business competitor of Re-
spondent.
2. Lukas' speech to all employees on the evening of
December 10, 1979
Sometime after 5 p.m. on Monday, December 10,
1979, Lukas awaited the arrival of all the employees at
the end of the workday to make a speech to them on Re-
spondent's premises. Overton made a tape recording of
about the first 45 minutes of the 1-1/2-hour speech. He
ceased recording after 45 minutes because, as he testified,
he feared he had been "spotted" by one of Respondent's
female clerical employees. Of the remaining 45 minutes
of the speech not so recorded, it is undisputed that about
25 minutes was occupied by Lukas playing an additional
tape recording of the November 30, 1979, conversation
between General Manager Michael Mard and Brown and
a further taped telephone conversation between Lukas
and a former employee of Respondent who had once
been a partner of Brown. These recordings were played
to the employees to show Brown as a business competi-
tor of Respondent, and to disparage Brown's character
and his reliability in business in order to cast doubt on
the wisdom of Respondent's employees in choosing him
to lead any labor organization in which they were mem-
bers. This December 10 meeting occurred immediately
before Respondent's employees were to meet at employ-
ee Salvator Palisi's home to sign cards for the Carpenters
Union, and Lukas does not deny that, during the meet-
ing, he told the employees that he knew that they were
shortly to go to a union meeting. In any event, on the
credited testimony of former employees Thomas Bar-
cena, Rudolph Harper, and Chester Overton, as partially
corroborated by former Supervisor Ronald Rogers, a
Respondent witness, and discrediting the denials and ex-
planations of Lukas and Golden I find that, in that De-
cember 10 meeting of some 20 employees, 5 foremen,
Golden, Mard, and Lukas, Lukas did all the talking; told
the employees how the Company was moving up; that
all the employees had opportunities for advancement;
that they would begin to get more benefits; and that the
cards the employees signed for Blue Cross-Blue Shield in
September 1979 which had resulted in no benefits to the
employees could be straightened out by negotiation.
Lukas said that, if the Union came in, it would cost too
much money and cause Respondent to close down. After
telling the employees that they were being "used" by
Brown who was organizing the Union for his own bene-
fit and not theirs, he said that if they did not support the
Union they could make more money and move up in the
world. After he told them that he knew of the union
meeting they were going to that night, he played the
various tapes to discredit Brown, noting that he was a
competitor of Respondent and that the employees had
been duped.
Thomas Barcena testified that before and after Lukas'
December 10 speech Foreman Ed Murray told him that
the Union was no good, would break up the "structure"
of Respondent by making too many demands, and that
Murray was always trying to get information from him
regarding the Union and asked them if he knew anything
of a union starting up. More important, Barcena testified
that after he signed the Local No. 1 card (on or about
November 21, 1979) Foreman Ed Murray told him that
Lukas would rather subcontract the work out than let a
union in.
Harper recalled that, in the December 10 speech,
Lukas said that they would not have a union in Respond-
ent and that Lukas had been "down this road" before,
and that Lukas mentioned four options which Respond-
ent faced with regard to the Union. These four options
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were: To change the name of the Company; to subcon-
tract the work; to close Respondent's doors; and to lay
off everybody. Lastly, Harper testified that Lukas told
them, after presenting the four options, that the employ-
ees who supported the Union should go home and think
about it. He ended by saying that, if the employees
thought that he was "playing" with them, the employees
should "try me."
The employees, at this time, were working 12 to 14
hours a day on a 6-day week being required to work on
Saturdays. Harper testified that, prior to this meeting, he
had not heard of Respondent subcontracting any of the
work. As above noted, Barcena testified that after sign-
ing his Local No. I card Foreman Murray told him that
Lukas would rather subcontract the work than let a
union in. In particular, he testified that there had been no
prior mention of subcontracting until he signed his card
in late November 1979 when Murray first mentioned it
to him.
Overton, a credible witness, testified that in the De-
cember 10 speech Lukas said that no union was going to
come in; that Respondent was an expanding company
and could benefit if the employees did not vote the
Union in. He said that all the employees had opportuni-
ties if they stuck with him and that they would get Blue
Cross-Blue Shield benefits. He then said that, rather than
have the Union in, he would close the doors but that
after he said that he said that he would "go subcon-
tract." Overton particularly recalled that Lukas said that
he knew that employee Palisi was having union meetings
and had a big part in trying to get the Union into the
shop.
The complaint alleges, inter alia, that in mid-December
1979, i.e., in this December 10, 1979, speech, Lukas made
unlawful promises to increase medical benefits, promises
of job advancement opportunities and other benefits and
improvements, and unlawful warnings and threats of
reprisal, to induce the employees to refrain from support-
ing Local No. 1 and the Carpenters.
I find that Lukas, by telling emloyees that the medical
benefits, which had not been secured in September could
be worked out by negotiations, was offering them Blue
Cross-Blue Shield benefits if they withdrew support from
the Union; told them that they all could succeed if they
stuck with him (a promise of unlawful benefits) and
thereby violated Section 8(a)(l) of the Act as alleged.
Further, by telling them that, faced with union organiza-
tion (having been down that "road" before), Respondent
had four options including closing its doors, subcontract-
ing, or going out of business, Respondent was predicat-
ing these options on the success of union organization
among the employees. Such threats of reprisal, as al-
leged, constitute unlawful warnings and threats of repri-
sals in violation of Section 8(a)(1) of the Act.
Although he did not expressly deny the testimony of
Harper, Barcena, and Overton, Lukas testified that he
merely told the employees that he would close the doors
and go out of business and in any event not bargain with
any union which had Joe Brown as one of its leaders be-
cause Joe Brown at all material times was a business
competitor; in addition, he was not required to do so. In
this regard Respondent points to the Regional Director's
December 31, 1979, dismissal of Local No. I's petition
for certification in Case 29-RC-4791 as support for this
position. 7 I do not credit Lukas. In the first place, Lukas
and other supervisors were threatening and coercively
interrogating employees before Respondent discovered
Brown's conflicting status. Moreover, I note that Lukas'
testimony specifically denied any mention of subcontract-
ing in this December 10 speech. Ronald Rogers, a
former Respondent foreman and, at the time of hearing,
one of two remaining "subcontractors" performing work
for Respondent, testified as a Respondent witness, con-
trary to Lukas' denial, that Lukas did mention subcon-
tracting in his speech to the employees and also used the
expression "try me" (as Harper had testified, that Lukas
had said that if the employees thought that Lukas was
"playing" with them, that they should "try me"). In
view of Rogers' testimony that one of the alternatives
that Lukas presented was subcontracting and otherwise
corroborated Harper, I find that Rogers' contrary testi-
mony undermines that of Lukas. I therefore credit the
testimony of Harper, Overton, and Barcena, contrary to
Lukas, because Respondent's own witness, Rogers, mate-
rially contradicted Lukas, and I conclude that Lukas did
not, in that speech, use Brown's conflicting position as a
condition of closing Respondent's doors or subcontract-
ing. If that were his actual position in making the speech,
there would be no reason for him to make promises of
benefits to avoid employee prounion activity. Even apart
from Rogers, I would discredit Lukas based on the other
elements in his speech, his demeanor, his volunteering of
explanations in his testimony, his repeatedly being led in
order to elicit his answers from impermissibly suggestive
questions, and Foreman Murray's prior threat to Barcena
(in late November) consistent with Lukas' December 10
threat to subcontract. In short, Lukas used Brown's
status as an argument against employees' support of this
Union. His promises of benefits and threats to close
down or to subcontract related to union representation
generally and not merely to opposition to Brown as
proved by his unlawful interrogations and threats before
he knew of Brown's conflicting position. Brown's status
was merely a single Lukas argument against employee
union activity.
3. The discharges of January 2, 1980
There is little dispute that on January 2, 1980, Re-
spondent, keeping its two servicemen, discharged all 19
of its insulation employees.8 There is no dispute that the
employees were told that at the end of the day, when
they returned from work, that they were being laid off;
7 The December 10 speech was made 3 weeks before the Regional Di-
rector's decision issued.
8 Some of the General Counsel's witnesses testified that they were laid
off on January 3, 1980, rather than or January 2. This is substantiated, in
part, by their testimony that payday is Thursday of each week and
covers the preceding period Thursday through Wednesday. They testi-
fied that they received two checks: One for the week ending Wednesday
and one for the full day of work on Thursday. It appears that, at most, a
backpay issue might turn on this. I conclude, however, as Respondent
suggests and other of the General Counsel's witnesses testified, that the
events herein occurred on Wednesday, January 2, 1980, rather than on
Thursday. January 3, 1980.
476
ST. JOHN'S CONSTRUCTION CORPORATION
that Respondent was going to subcontract their work;
and that their foremen were going to purchase Respond-
ent's trucks and run them as independent businessmen.
As above noted, except for Lukas' December 10 speech
there was no mention of subcontracting to employees
prior to this time except that, in late November 1979,
Foreman Ed Murray told employee Barcena who had al-
ready signed a Local No. I card that Lukas would rather
subcontract the work than permit the Union to come in.
As in the case of employee Barcena, employee Harper
testified that he received two checks at the end of the
workday on January 2, 1980; that when Production Man-
ager Tim Golden passed out the checks, he told him that
Foremen Middleton, Rogers, and Bennett were the new
subcontractors and that, if he wanted a job, he had better
talk to them because he would be working for them for
now on. When Harper went to Middleton to ask him to
work on his truck, Middleton refused. He then ap-
proached Foreman Ed Murray, who eventually hired
him. Harper was thereafter paid by Murray on checks
carrying Murray's name rather than St. John's Construc-
tion; was paid at straight time rate only with no overtime
pay; reported to work at the same place, 127 Bedell
Street; and traveled in the same truck as before, carrying
the same markings of St. John's Construction Corp. In
reporting to work each day at St. John's Construction,
the same production manager, Tim Golden, gave out the
work in the same way to the subcontractors who had
previously been the foremen; and the contracts for work
to be performed by the subcontractor remained contracts
bearing the name of St. John's Construction. There is no
dispute that St. John's Construction still bid the work for
the subcontractors and Overton and Tamacheski, still
Respondent's employees, continued to act as servicemen.
Harper testified that his "subcontractor," Ed Murray,
told him after January 2, 1980, that he was "broke"; that
he got a salary from St. John's Construction "just like
you"; and that he was "broke like you."
Rogers testified without contradiction that he came
into being as subcontractor on January 3, 1980; that he
pays his own disability insurance under the laws of New
York State and computes his own withholding from the
salaries of his employees who receive only wages. He
says that he owns the truck now although it continues to
bear the name "St. John's Construction" on its side. He
said that he purchased the truck from St. John's on an
agreement requiring 20 percent of his weekly revenues
or at least $300 a week to be paid to Respondent until
the purchase price was met.
The former foremen who are now subcontractors,
under an arrangement with St. John's, store their trucks
at St. John's to keep them warm (because of the pecu-
liarities of the chemical reactions in the urea-formalde-
hyde foam) at a rate of about $50 per month; do most of
their work as subcontractors for St. John's on jobs which
St. John's calculated and bid, but also do work for pri-
vate parties from time to time. The subcontractors do
their own billing. The subcontractors are obliged to steer
jobs to St. John's if they receive the jobs from strangers
while they are working on jobs provided by St. John's.
There is no such obligation if the subcontractor obtained
the job without St. John's assistance. The percentage of
this "private" work is unknown.
On January 2, 1980, and thereafter, there was and has
been no written agreement entered into between St.
John's and the subcontractors relating to their relation-
ship. 9 In July or August 1979, according to Rogers,
Lukas first mentioned subcontracting to him and asked
him whether he would like it. When Rogers told him
that he would like it, Lukas told him to let it slide. There
is no testimony or other evidence from Rogers that
Lukas made any further mention of subcontracting be-
tween July or August 1979 and January 2, 1980, when he
made the oral subcontracting agreement with Rogers.
When, in July and August 1979, Lukas allegedly sug-
gested that Rogers, in becoming a subcontrator, could
use the law firm of Haber and Wolf (predecessor to Re-
spondent's present counsel), Rogers had never met Haber
or Wolf then or thereafter. He did testify that sometime
after January 2, after Haber, Wolf, and Respondent
chose a corporate name for him, Haber and Wolf sent
him corporate seals. Rogers paid the legal fee but never
met or even spoke to the lawyers. Respondent acted as
the "go-between." The choice of the corporate name and
the use of the law firm, according to Rogers, were
Lukas' idea and Lukas told Rogers that he would "take
care of it." In addition to using the same lawyer as St.
John's Construction, Rogers, as a subcontractor, used the
same accounting firm, also at Lukas' suggestion.
With regard to the timing and nature of Respondent's
decision to subcontract the work rather than use its own
employees, Lukas testified (and was corroborated in
large part by the testimony of Production Manager Tim
Golden) that in July 1979 he discussed subcontracting
with his foremen, some of whom were only lukewarm
about the idea. I credit this much of Lukas' testimony.
Lukas, unlike Rogers, did not suggest that he proffered
the name of his law firm at this date. In addition, howev-
er, he testified that, in early October 1979, he again had
a meeting with his foremen, especially including Rogers,
in a diner in Hempstead, Long Island, when a firm deci-
sion was made to subcontract. Lukas testified that he
told the foremen that there would be subcontracting
some 2 months down the road and told them of the
problems of subcontracting including the necessity of
getting a lawyer and an accountant. He suggested the
use of the law firm of Haber and Wolf and the necessity
to incorporate. He said he also told them that, while
they could do private work and would be independent,
he expected them to give priority in doing business to St.
John's work. There were discussions at that time as to
the responsibility for broken equipment and the use of
mechanics. Lukas testified that, although there was a
firm October 1979 decision between him and his foremen
to engage them as subcontractors and although there was
a "final commitment," there was no implementation of
that decision after October 1979 because they were too
busy with their work. Such an explanation is incredible
9 Nor had it been formalized as of the hearing in January 1981. Rather
than enter into a written agreement. Lukas preferred to proceed on "the
basis of integrity."
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is unacceptable.°" In particular, Lukas testified that
present at the October meeting were Foremen Ron
Rogers, Gene Middleton, Bob Bennett, and Ed Murray.
It is noteworthy again that Rogers failed to testify con-
cerning the October meeting and that, while Rogers tes-
tified that he paid for his truck on the basis of a 20 per-
cent of gross earnings or $300 per week, whichever was
less, Lukas testified that at the October 1979 meeting at
the diner it was agreed that they were to pay at a rate of
only 10 percent of their gross earnings or $300 per week,
whichever was less. In short, Lukas testified that at that
October 1979 meeting with the foremen they hammered
out a general understanding and made a final decision to
subcontract perhaps in 2 months. Although there was no
implementation of that alleged agreement between Octo-
ber and January 2, 1980, Lukas said that, when he was
prepared thereafter to implement the October decision to
subcontract, that implementation was interrupted by a
late November telephone call from the Board advising
Respondent that, on or about November 26, 1979, the
Local No. 1 petition was filed in Case 29-CA-4971.
Lukas said that he decided, after discussions with coun-
sel, not to proceed with subcontracting because to do so,
and terminate his employees with the filing of the peti-
tion, would be regarded as an unlawful act.
Finally, Lukas testified that when, on January 2, 1980,
he learned that the Local No. I petition had been dis-
missed, he decided to implement the subcontracting
agreement because there was no representation proceed-
ing pending. Lukas denied knowledge of the continuing
interest and union activity among Respondent's employ-
ees in support of the Carpenters Union.
4. Discussions and conclusion with regard to the
subcontracting on January 2 and the discharge of
Respondent's 19 production and maintenance
employees
I conclude, as alleged in the complaint, that Respond-
ent on January 2, 1980, unlawfully discharged 19 produc-
tion and maintenance employees and thereafter unlawful-
ly entered into subcontracts with its former foremen as
"subcontractors" as a sham device in an attempt to avoid
the possibility of dealing with the Union.
As I understand Respondent's testimony, Lukas dis-
covered the dismissal of the petition by virtue of a phone
call from his attorney on the morning of January 2, 1980.
0' On cross-examination, Lukas testified that this "firm decision" was
only a "broad outline" and that, in October, since the foremen had no
prior business experience, he "didn't want to lock them into anything
firm," This "firm decision" therefore, certainly as of October 1979, ac-
cording to Lukas' own testimony, was apparently not entirely rigid, not-
withstanding that Lukas also testified that it was "practically" formalized
in October. In any event, Lukas testified that "there was no need to draft
documents . . [A] contract or a piece of paper typed up does not for-
malize anything." Earlier, Lukas testified that at the October meeting
there was a definite decision to subcontract and a "final commitment."
Lukas would be taking a dangerous business and legal step if, at one time,
he made a "final commitment" to subcontract and yet failed "to lock
them into anything firm," preferring to proceed on the basis of "integri-
ty." My observation of Lukas as an astute businessman, whatever his esti-
mation of the integrity of his foremen, leads me to conclude that, had any
"final commitment" pertaining to the fundamentals of his business been
made, it would have been reduced to writing well before the drastic
changes of January 2, 1980.
The face of the decision of the Regional Director dis-
missing the petition carries two notations, in footnotes 1
and 2 therein, of the affiliation or attempted affiliation of
Local No. 1 with the Carpenters Union (Resp. Exh. 1).
Indeed, that affiliation was in process according to foot-
note 2 of the Regional Director's December 31, 1979,
disposition. Since a motion to amend the petition was
made at the representation hearing with regard to Local
No. I affiliating with the Carpenters Union, and since
that was made early in December 1979, I cannot credit
Respondent's assertion that it was unaware that the Car-
penters Union had a continuing interest of representing
the employees in the production and maintenance unit.
What Respondent is essentially arguing is that the Re-
gional Director's December 31, 1979, dismissal of Local
No. I's petition is dispositive of the conclusion that, in
fact, there was no longer any union activity among its
employees of which notice need be taken for legal pur-
poses, and that Respondent could therefore proceed with
its subcontracting scheme to eliminate any further risk of
unionization. The facts, however, do not support this ar-
gument.
Secondly, after allegedly leisurely considering the
matter in July and October 1979, the haste with which
Respondent terminated its employees and entered into
these verbal subcontracting agreements with its former
foremen all demonstrate that Respondent was seeking to
act at a time when there was apparently no proceeding,
at least in a formal sense, which would prevent it from
acting. Such haste in the face of the Carpenters' continu-
ing interest further manifests Respondent's quick action
to enter into a relationship with its former employees
which might avoid further representation problems. I
cannot credit Respondent's testimony to the effect that it
was unaware of the Carpenters' interest. I conclude, con-
trary to such testimony, that Respondent acted only be-
cause the petition had been dismissed; and that there
were no formal National Labor Relations Board repre-
sentation proceeding at that time. Where, as here, I con-
clude that Respondent discharged its employees, know-
ing and reasonably fearing that they were supporting the
Carpenters Union which, in the future, would file a fur-
ther representation petition or confront Respondent with
a bargaining demand as their representative, the dis-
charges are unlawful and in violation of Section 8(a)(1)
and (3) of the Act.
In further support of this conclusion, one may observe
that Respondent engaged in conversations with its fore-
man relating to subcontracting as early as July or August
1979. Respondent admits that there were no firm deci-
sions made at that time with several of the foremen ex-
pressing only lukewarm interest. Respondent goes fur-
ther and states that a firm decision to subcontract was
made in October 1979. In support of this are Lukas' testi-
mony and the testimony of Tim Golden, allegedly pres-
ent at such a meeting. None of the foremen testified with
regard to any October meeting much less that a firm de-
cision was made by Lukas and Respondent to engage in
subcontracting as early as October 1979. Rather, the only
subcontractor who testified--indeed the only foreman
who testified--was Ron Rogers, called as a witness by
478
ST. JOHN'S CONSTRUCTION CORPORATION
Respondent. Although he testified as to conversations
with Respondent as early as July or August 1979, 1 was
particularly impressed by his failure to mention that any
similar conversation had been made by Lukas with an
agreement by the foremen to become subcontractors.
Moreover, as Harper, Barcena, and Overton testified, the
only mention of subcontracting which they had heard
was after the signing of their Local No. I cards in late
November 1979, when Foreman Ed Murray mentioned
that Respondent would rather subcontract the work than
permit a union to come in. In sum, despite Golden's cor-
roboration and in view of Roger's failure to mention any
October or other meeting where both Lukas and Golden
place him, I do not credit that any such October meeting
was held or that an agreement was then reached. I con-
clude, further, that, if any meeting were held between
Lukas and his foremen, it was after the commencement
of union activity among Respondent's employees in No-
vember 1979; and that Lukas told the supervisors, as
Murray told Barcena in November 1979, that Respond-
ent would rather subcontract than permit a union to
come in. I conclude it was then that Lukas met with his
foremen-not in October, but after union activities start-
ed; and the substance of the communication from Lukas
to the foremen, which Murray contemporaneously re-
peated to Barcena, was that they could expect to become
subcontractors if a union came in. Surely if there had
been a firm commitment (including various details of op-
eration) made by the foremen to Lukas in a special meet-
ing, as Lukas suggested, Rogers (whom both Lukas and
Golden place at the meeting) would have made mention
of it in his testimony. He did not. Nor did Respondent
call any other foreman to testify in support of such a
specific subcontracting agreement or understanding in
October 1979.
I therefore do not credit Lukas' and Golden's testimo-
ny insofar as they asserted that a meeting with the fore-
men was held in or about October 1979, i.e., before
Local No. 1 activity among Respondent's employees,
wherein an agreement was reached wherein the foremen
would be subcontractors doing work for St. John's Con-
struction Corp. I further conclude, therefore, that, based
on Respondent's animus, the timing, and Respondent's
knowledge and previous threat, the termination of the 19
employees on January 2, 1980, and the immediate sub-
contracting to foremen, all occurred by virtue of Lukas'
unlawful desire and intent to avoid further action by Re-
spondent's employees (who were at that time card sign-
ers of the Carpenters Union) in support of a collective-
bargaining agent. Again, this is demonstrated by the fact
that as early as December 1979, in the Board's proceed-
ings, Respondent knew" that its employees were seeking
affiliation with the Carpenters Union by virtue of state-
ments by Local No. 's representative; and that to fore-
stall any such continued activities by its employees, upon
the dismissal of the Local No. I petition Respondent sud-
denly went to subcontracting. Respondent's terminating
" Indeed, the very December 31 document on whose dismissal Re-
spondent relies for legal exculpation carries in its fn. 2 the observation
that a Carpenters Union charter "was in the process of being issued."
Dismissal of the petition can hardly foreclose a finding that the employ-
ees' desire for union representation here continued
of employees in order to avoid the anticipated conse-
quences of their further union activities on behalf of the
Carpenters and using the device of subcontracting to its
erstwhile foremen violates Section 8(a)(1) and (3) of the
Act.
I reject Lukas' testimony that he failed to implement
an October decision to subcontract because he or his em-
ployees were too busy and because it would have inter-
fered with business.
5. The discharge of Richard O'Keeffe in violation
of Section 8(a)(3) of the Act
The complaint alleges that O'Keeffe was unlawfully
discharged on December 9, 1 9 7 9. 2 Hired by Respondent
in August 1979, O'Keeffe was terminated in the middle
of the pay period, without warning or notice, on Satur-
day, December 8, 1979, at or about 4:30 p.m. after com-
pleting a job. Another employee told him that Produc-
tion Manager Golden wanted to see him and, when he
went into Golden's office, Golden told him that he was
being temporarily laid off because work was slow. (Con-
necticut and other States had banned foam as an insulat-
ing material and other States were following Connecti-
cut's lead.) Golden said he told O'Keeffe work was "get-
ting slow." "a When O'Keeffe asked him how long the
layoff would be, Golden told him that he was not sure
and that he would be called back when things picked up.
O'Keeffe walked out but within a few minutes returned
to the office because he knew that he was not the least
senior employee. He then asked Golden why he was
being picked for layoff over everybody else. Golden told
him that there was no such thing as seniority in Re-
spondent and that he (Golden) picked whom he wanted
to pick. O'Keeffe said that he could not believe that he
12 The complaint also alleges that employee Salvador Palisi was unlaw-
fully discharged on December 7, 1980 At the hearing, the General Coun-
sel moved to amend the complaint by withdrawing Palisi's name as an
alleged discriminatee. Without objection, I granted his application.
'' In early November, Respondent was so busy that it projected adding
a sixth truck. In early December, Respondent was still very busy. Golden
first testified that he first told Lukas that Respondent would not need a
sixth truck in the second week in December, then switched to the first
week when confronted with the fact that O'Keeffe was terminated as
early as December 8. Golden also testified that he decided as early as
December 2 to terminate an employee but did not determine until the
day of termination that O'Keeffe would be chosen. On December 2 or 3,
Respondent was "very busy," using five men on the trucks rather than
the usual four. Golden then said he determined on December 2 to termi-
nate an employee because he projected that later in December, around
Christmas, the work would then be "bottoming out." This testimony
cannot withstand scrutiny. Surely, if the decision were made as early as
December 2-highly unlikely in view of the quantity of business-
O'Keeffe could have been terminated coextensive with the pay period.
And why terminate him when there was work; why not await the slack
period? It might also be noted that, even as late as the day of his dis-
charge, O'Keeffe and the other employees were working a 6-day work-
week. Evidently, Golden's projected "bottoming out" process had not
begun. Finally, Golden simply could not explain what caused him to sud-
denly terminate O'Keeffe in the middle of the pay period, especially
when that occurred on December 8 and he had determined on making
the termination 5 or 6 days before. Lastly. Overton testified without con-
tradiction that, all through January and February, the servicemen and
former employees were all "busy as ever." Thus, the economic basis for
the O'Keeffe termination must be considered as wholly false as the al-
leged poor quality of O'Keeffe's work and complaints of coemployees
There was no evidence to support employce complaints.

479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was being picked for being laid off; that nobody ever
warned him about his work or conduct and that work
was not slow at the time with Respondent operating five
trucks on a 6-day week. Harper's uncontradicted testimo-
ny, above, was that, at least as late as December 10, the
6 days of work per week were based on 12- to 14-hour
workdays.
Golden told him that he was thinking of laying off
other employees. No other employee was ever laid off
for lack of work.
With regard to his union activities, O'Keeffe said that
he signed a union card 3 or 4 weeks before he was laid
off and he also distributed five or six Local No. I cards
for Salvador Palisi. Employees came to him for cards but
returned the signed cards to Palisi. The record is silent
whether he sought to conceal his distribution of the
union cards to coemployees. He attended no union meet-
ings until after he was laid off.
With regard to Respondent's knowledge of O'Keeffe's
union activities, he recalls only conversations with his
foreman, Rogers, sometime in November 1979 when
Rogers told him that he (Rogers) was in favor of the
Union and would not have taken the job of foreman if it
meant not being represented by the Union. O'Keeffe said
that he did not remember if he told Rogers that he had
joined the Union.
Golden testified that he laid off O'Keeffe because he
was a slow worker and because Respondent's work was
slow. Respondent has not supported either of these asser-
tions and, as above noted, I have rejected as incredible
Golden's testimony regarding the economic basis for
O'Keeffe's termination including the timing of his deci-
sion. Golden also denied any other reason for the dis-
charge but did say that two employees (MacIntosh and
Phillips) had complained about O'Keeffe; that O'Keeffe
was too slow and was holding them down in their pro-
duction. Golden testified he spoke twice to O'Keeffe to
improve his performance and to O'Keeffe's foreman,
Rogers. Golden said that O'Keeffe's problems and poor
performances were evident soon after he was hired.
Respondent failed to call as witnesses any of the em-
ployees who allegedly complained to Golden about
O'Keeffe's conduct and work activity; failed to seek cor-
roboration from Rogers whom it examined as its witness,
and Golden and Lukas contradicted each other concern-
ing the choice of O'Keeffe as a person to be terminated.
Whereas Golden testified that Lukas left the matter
solely up to him (Golden) to make the decision as to
whom to lay off because of the slow work, Lukas testi-
fied specifically that he directed Golden to terminate
O'Keeffe. Thus the record shows that O'Keeffe, without
explanation, was terminated in the middle of the pay
period; he was not the employee of least seniority;
named employees who had allegedly complained about
his work and the supervisor, a witness, were neither pro-
duced nor examined to support Golden on this point; and
there was a dispute among Respondent's top supervisors
as to who had actually selected him for being terminat-
ed. 4
" In addition, the economic basis for the termination has been rejected
as palpably false.
There is no direct proof of Respondent's knowledge of
O'Keeffe's union activities. Especially in "small plants,"
such as Respondent's fewer than 22 employees, General
Iron Corp., 218 NLRB 770, 778 (1975) (about 25 employ-
ees), the employer's knowledge may be inferred and thus
an unlawful motive for the discharge supported. Such an
inference may be drawn where, in a small plant, an em-
ployee has engaged in union activities, the employer has
demonstrated union animus and engaged in contempora-
neous unfair labor practices, and the employee has been
terminated for reasons which are factually unsupportable.
Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959); A to
Z Portion Meats, Inc., 238 NLRB 643 (1978), enforce-
ment denied 106 LRRM 2844, 90 LC 12,648 (6th Cir.
1981); U.S. Soil Conditioning v. N.L.R.B., 606 F.2d 940
(10th Cir. 1979).
Here, O'Keeffe signed a union card on November 21
and distributed five or six others to employees. There is
no showing on this record where, when, and the circum-
stances under which he distributed the cards, including
the notoriety of his activity. Even if he concealed his ac-
tivities, that would not foreclose the inference of knowl-
edge, A to Z Portion Meats, Inc., supra. There is no show-
ing here of O'Keeffe being circumspect or concealing his
involvement. Rather, he discussed the Union with his
foreman notwithstanding he may not have explicitly
thereby identified himself as a supporter.
The next working day after the O'Keeffe discharge,
Lukas made his December 10 speech threatening, inter
alia, closing down or subcontracting to combat the
Union. Prior to the discharge, in late November, Lukas,
Golden, and other supervisors interrogated and threat-
ened employees.
By far the critical element for inferring knowledge-
and motive-is the incredible, and virtually unintelligible,
testimony of Production Manager Golden, the supervisor
who terminated O'Keeffe. His explanation of the eco-
nomic basis of the decision to terminate O'Keeffe was
that he projected a falling off of business. Yet, the evi-
dence is uncontroverted that Respondent was very busy
(operating all five trucks, 6 days per week, 14 hours per
day) on the very day O'Keeffe was discharged. No re-
cords or supporting evidence were produced to substan-
tiate the anticipated "bottoming out." As for specific
timing, he openly admitted that he could not answer or
explain why he terminated O'Keeffe, without prior
warning or notice, in the middle of the pay period when
he allegedly knew 4 or 5 days before that time that he
was going to terminate two employees. The quality of
this sort of testimony is unacceptable from a high super-
visor who directly participated in-indeed, he testified
he both initiated and implemented-the O'Keeffe dis-
charge.
Moreover, with regard to the selection of O'Keeffe,
Respondent failed to corroborate Golden's testimony,
that two employees complained of O'Keeffe's work and
that his slowness was the reason for the discharge. The
only evidence was to the contrary-that there were no
complaints. Further, Respondent also failed to question
its witness, Foreman Rogers, to corroborate Golden's
testimony that he previously spoke to Rogers concerning
480
ST. JOHN'S CONSTRUCTION CORPORATION
O'Keeffe's poor work. I do not credit Golden's testimo-
ny concerning any such complaints against O'Keeffe or
conversations with Rogers especially in the light of
O'Keeffe denying any such conversations with Golden
or any other "boss."
Here, therefore, are all the elements for a reasonable
inference of Respondent's knowledge and unlawful moti-
vation under the "small plant" theory, Haynes Industries,
Inc., 232 NLRB 1092 (1977), a plant of under 22 employ-
ees, contemporaneous unfair labor practices, threats, and
other demonstrations of union animus, A to Z Portion
Meats, Inc., supra; no prior warning of discharge (or
even complaints on his work) followed by an abrupt and
wholly unexplained discharge in the middle of the pay
period, Haynes Industries, Inc., supra; and shifting, false,
and unsupportable explanations regarding economic cau-
sation, timing, and selection, from which I additionally
find support in inferring an unlawful motive, A to Z Por-
tion Meats, Inc., supra at 643. The court of appeals in A
to Z Portion Meats. Inc., supra, appears to have relied on
the concealment of union activities in denying enforce-
ment. Here, Respondent's incredibility was, if anything,
more pervasive in failing to explain the O'Keeffe dis-
charge and here there was no proof of concealment by
O'Keeffe. The General Counsel having proved a prima
facie case of O'Keeffe's unlawful termination and Re-
spondent having advanced only false "reasons" for the
discharge, I conclude that on December 8, 1979, Re-
spondent discharged its employee Richard O'Keeffe in
violation of Section 8(a)(3) and (1) of the Act as alleged.
Cf. Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980); Limestone Apparel Corp., 255 NLRB
722 (1981); Steinerfilm, Inc., 255 NLRB 769 (1981).
CONCLUSIONS OF LAW
i. The Respondent, St. John's Construction Corpora-
tion, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and Local No. 1, Insulation, Siding
and Home Improvements Union, are labor organizations
within the meaning of Section 2(5) of the Act.
3. By its supervisors inquiring into the employees
having signed membership cards in Local No. 1 or the
Carpenters Union, in November and December 1979,
and inquiring into their views concerning their support
for either of such labor organizations, Respondent un-
lawfully interrogated its employees concerning their
membership in, activities on behalf of, and sympathy for
the Carpenters Union and Local No. I in violation of
Section 8(a)(1) of the Act.
4. Respondent, by statements of its supervisors, Lukas,
Golden, Middleton, and Murray in November and De-
cember 1979, wherein it offered and promised employees
increased medical benefits, job advancement opportuni-
ties, and opportunities to make more money in order to
induce them to refrain from supporting or giving assist-
ance to any of the said labor organizations, made unlaw-
ful promises of benefits in violation of Section 8(a)(1) of
the Act.
5. By warning and directing its employees, in Novem-
ber and December 1979, to refrain from becoming or re-
maining members of the Carpenters Union or Local No.
1, by threatening to go out of business, plant closure,
subcontracting of unit operations, and discharge of its
employees in order to have such employees refrain from
giving support or assistance to the above labor organiza-
tions, or either of them, Respondent violated Section
8(a)(1) of the Act.
6. By discharging Richard O'Keeffe on December 8,
1979, by subcontracting work on January 2, 1980, and by
discharging the following named employees on or about
January 2, 1980, because of its desire to avoid its em-
ployees being represented by a labor organization, and
their membership in and activities on behalf of the
above-named labor organizations, or either of them, Re-
spondent engaged in, and is engaging in, unfair labor
practices in violation of Section 8(a)(1) and (3) of the
Act: Gary Rogers, Stephen Pellegrino, Michael
McHenry, Pablo Soto, Thomas Barcena, Tom Taggart,
Michael Phillips, Fred Kirk, Rich Fordham, Richard
Bennett, James Williams, Thomas Quinn, D. McIntosh,
Milton Mooney, Benjamin Faron, Joseph Balado, Robert
Romeo, Rudolph Harper, and Kenneth Lukas.
7. By ceasing its own insulation and trucking business
and activities, selling its trucks to subcontractors, and
contracting out its service operations in the installation
of insulation materials, all because of the union activities
of its employees, Respondent engaged in, and is engaging
in, unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act.
THE REMEDY
It having been found that the Respondent, St. John's
Construction Corporation, has engaged in certain unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action to effectuate the
policies of the Act.
It having been found that Respondent unlawfully dis-
charged 20 of its employees because of their union activi-
ties, and its desire to avoid their anticipated representa-
tion by a labor organization, I will recommend that Re-
spondent offer them immediate and full reinstatement to
their former jobs or, if such jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to their se-
niority and other rights and privileges, or other working
conditions, and make them whole for any loss of earn-
ings or benefits suffered by reason of such discrimination
by payment to them of sums of money equal to the
amounts that they would have earned from December 8,
1979, in the case of Richard O'Keeffe and January 2,
1979, in the case of the remaining named 19 employees
as net backpay to the date of their being offered uncon-
ditional reinstatement by Respondent, all in accordance
with the Board's formula in F. W. Woolworth Company,
90 NLRB 289 (1950), with interest as described in Flor-
ida Steel Corporation, 231 NLRB 651 (1977).'5 The
s See, generally, Itis Plumbing d Hearing Co.. 138 NLRB 716 (1962).
Neither the General Counsel nor the Carpenters Union has urged the is-
suance of a bargaining order herein and I do not pass on the issue.
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's normal remedy in this type of case, where the
subcontracting stems from an unlawful motive, is for Re-
spondent to resume its operations where the record
shows that the resumption, including cancellation of its
subcontracts, if necessary, would not create undue hard-
ship. In Jays Foods, Inc., 228 NLRB 423 (1977), where
the subcontracts could be canceled on 30 days' notice,
the Board ordered such resumption of operations. It or-
dered that the subcontracting agreements be canceled be-
cause the financial and legal ties of the respondent's serv-
ice operations were not completely severed and resump-
tion could be easily obtained. Here, Respondent, al-
though it sold its trucks to the subcontractors, has no
subcontracting agreements of any duration whatsoever
with the subcontractors. As of the date of the hearing,
there were no specific agreements. Thus, they can be
canceled at will. With regard to Respondent's use of
trucks, they can either be purchased from the subcon-
tractors or Respondent may pay the former foremen for
their use or seek other means of engaging in business.
The fact that its equipment, including compressors, was
also sold to the subcontractors is not a sufficient hardship
to its returning to its original function. As I noted at the
hearing, a hardship to Respondent may exist for it to ob-
serve its obligation to pay backpay. Of that, however,
the record here is silent.'6 If it reinstates the employees,
it is, under the law, permitted to lay them off for reasons
not related to discriminatory purposes if there is simply
not enough work for them. Its obligation to reengage in
its original business of supplying its own services by its
own employees will not, on this record, require such
hardship as to militate against such considerations. It has
its old warehouse and its old supervisors who engage in
the same work they engaged in before the subcontract-
ing. To not require Respondent to engage in its old busi-
ness would be effectively to permit Respondent, as in
Jays Foods, Inc., supra, to be rewarded for its own un-
lawful action since the employees employed by the sub-
contractors are not represented by any labor organiza-
tion and Respondent has successfully and unlawfully
evaded its statutory obligation to permit its employees to
be union members if that is the expressed desire of the
employees. In view of the above facts, it is not unreason-
able for Respondent to resume its former operations and
reestablish the status quo ante to the extent necessary to
provide jobs for those employees who desire reinstate-
ment and employment. Jays Foods, Inc., supra at 424.
Since the subcontracting was unlawfully motivated and
may be avoided, I shall recommend that Respondent
sever whatever ties it has with the subcontractors, rees-
tablish its operations, and offer to reinstate O'Keeffe and
the employees discriminatorily discharged before the unit
work was contracted out.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
'' There is no record evidence that, even with laws against the use of
urethane foam as an insulating material, Respondent's operations, in fact,
have become unprofitable. Respondent has not shown that the Board's
normal remedy of restoration of the status quo ante would endanger its
continued viability. Hood Industries, Inc.. and its Wholly Owned Subsidi-
ary. B & K Transportation. Inc., 248 NLRB 597, fn. 3 (1980).
ORDER "
The Respondent, St. John's Construction Corporation,
Hempstead, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf
of Local No. , Insulation, Siding and Home Improve-
ments Union, or United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or either of them, or any
other labor organization, by subcontracting work, dis-
charging its employees, or in any other manner discrimi-
nating against them in regard to their wages, hours, hire
or tenure of employment, or any other term or condition
of their employment.
(b) Promising its employees increased medical benefits,
job advancement opportunities, or other improvements in
their working conditions to induce them to refrain from
engaging in or supporting union activities.
(c) Warning, directing, or threatening its employees
with discharge, plant closure, subcontracting of work, or
other reprisals in order to cause them to refrain from be-
coming or remaining members of any labor organization
or giving such labor organization their support or assist-
ance.
(d) Coercively interrogating any of its employees with
regard to their union activities or sympathies.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer the following named employees immediate
and full reinstatement to their former jobs, without loss
of seniority or other privileges, or, if such jobs no longer
exist, to substantially equivalent jobs, and make them
whole for any loss of pay they may have suffered by
reason of Respondent's unlawful discharge in accordance
with the provisions of this Decision entitled "The
Remedy": Richard O'Keeffe, Gary Rogers, Stephen Pel-
legrino, Michael McHenry, Pablo Soto, Thomas Bar-
cena, Tom Taggart, Michael Phillips, Fred Kirk, Rich
Fordham, Richard Bennett, James Williams, Thomas
Quinn, D. McIntosh, Milton Mooney, Benjamin Faron,
Joseph Balado, Robert Romeo, Rudolph Harper, and
Kenneth Lukas.
(b) Reestablish its service and trucking operations as
such operations existed on and before January 2, 1980,
severing, if necessary, its subcontracting agreements and
operations.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all sub-
contracts, payroll records, bank statements, truck title
transfers, bills of sale of equipment, social security pay-
ments records, timecards, personnel records and reports,
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
482
ST. JOHN'S CONSTRUCTION CORPORATION
and all other records necessary to facilitate the effectu-
ation of this Order.
(d) Post at its warehouse and office in Hempstead,
New York, copies of the attached notice marked "Ap-
pendix."ls Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by an authorized representative of Respondent,
shall be posted by Respondent immediately upon receipt
1' In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to alleged violations of the Act
not expressly found in this Decision.
483