Tinney Rebar Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 6, 2009

06-CA-036203 (N.L.R.B. May. 6, 2009)

JD–17–09
Oakdale, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TINNEY REBAR SERVICES, INC.
and Case 6–CA–36203
INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL, ORNAMENTAL AND REINFORCING
IRON WORKERS, LOCAL UNION NO. 3, AFL–CIO
JoAnn Dempler, Esq., for the General Counsel.
Jeffrey J. Morella, Esq. and Joseph Carnicella, Esq.
(Morales and Associates, P.C.), of Pittsburgh,
Pennsylvania, for the Respondent.
Joshua M. Bloom, Esq. (Joshua M. Bloom &
Associates, P.C.), of Pittsburgh, Pennsylvania,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL, JR., Administrative Law Judge. This case was heard by me on
January 27, 2009, in Pittsburgh, Pennsylvania, pursuant to an original charge filed on
September 4, 2008, by Ironworkers Local 3 (the Union) against Tinney Rebar Services, Inc. (the
Respondent).
On November 21, 2008, the Regional Director for Region 6 of the National Labor
Relations Board (the Board) issued a complaint against the Respondent alleging that the
Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). On
December 4, 2008, the Respondent filed timely its answer to the complaint essentially denying
the commission of any unfair labor practice and asserting certain affirmative defenses. The
Respondent filed an amended answer, again denying the commission of any unfair labor
practices on January 2, 2009, and a second amended answer on January 12, 2009.
At the hearing the parties were represented by counsel and were afforded a full
opportunity to be heard, examine and cross-examine witnesses, and introduce evidence. On
the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Respondent,1 I make the following.

1 The Charging Party Union did not file a brief. On March 6, 2009, the General Counsel filed
her motion seeking the striking of the last sentence in fn. 1 on p. 9 of the Respondent’s post-
hearing brief. The General Counsel submits that the last sentence, to wit, “In fact, those tapes
no longer exist,” is not supported by any evidence of record.
The Respondent in opposition responded, noting that the General Counsel on p. 18 of her
Continued
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I. JURISDICTION — THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation, maintains and operates an office and place of business
in Oakdale, Pennsylvania, and has been engaged in the fabrication and installation of rebar.
The Respondent admits that during the past 12-month period ending August 31, 2008, in
conducting its operations, it purchased and received at its Oakdale, Pennsylvania facility goods
and services in excess of $50,000 directly from points outside the Commonwealth of
Pennsylvania. Accordingly, I would find and conclude that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
It is admitted by the parties that International Association of Bridge, Structural,
Ornamental and Reinforcing Iron Workers, Local Union No. 3, AFL–CIO has been a labor
organization within the meaning of Section 2(5) of the Act.
III. BACKGROUND TO THE LITIGATION; UNDISPUTED MATTERS
As noted, Tinney Rebar Services engages in the fabrication and installation of steel
reinforcing bar (rebar), which is used in the construction industry to strengthen concrete. Before
operating as Tinney Rebar Services, Inc., principal owner/operator Mark Tinney (Mark) operated
another company, Three Rivers Steel Corporation, which also was engaged in the fabrication
and installation of rebar. Three Rivers Steel, however, was a signatory to a collective-
_________________________
brief argues for the drawing of an adverse inference for the Respondent’s purported failure to
produce tapes from the Company’s security cameras, which possibly could have shown alleged
discriminatee Ferris working in the shop, as well as whether Supervisor Harry Tinney was
present there on August 28, 2008.
The Respondent submits that the only evidence to support what it views as a wholly
speculative argument is contained in a brief cross-examination of Mark Tinney by the General
Counsel on p. 203 of the transcript, whereat Tinney essentially states that the Company has 12
different (security) video cameras located around and inside the buildings; that the cameras are
operational (going) all the time; and they show the activities of the employees in the shop.
The Respondent contends that the General Counsel did not follow up these answers with
further questioning to flesh out certain pertinent information—for example, whether the cameras
were indeed operating on the day and time in question; whether they were capable of recording
images sufficient for identification of specific persons, including Ferris or Harry Tinney; and
whether the tapes for the day in question still existed.
The Respondent argues that there is insufficient evidence of record to support an adverse
inference against it regarding the tapes and, furthermore, that the Company was under no
obligation to elicit any information about the tapes at all. The Respondent contends that the
General Counsel is obliged to prove her case and if the tapes were significant thereto, she
should have elicited sufficient evidence to warrant the adverse inference, and therefore the
motion to strike should be denied.
I have considered the motion in the context of the entire record and the parties’ relative
positions as stated in their respective briefs and would conclude that while the challenged
statement in the Respondent’s brief is arguably extra record, I view it to be in the nature of
argument based on the record evidence or a reasonable interpretation thereof. Accordingly, I
will deny the motion to strike. Horizon Contract Glazing, Inc., 353 NLRB No. 16 (2008); and
Alaska Pulp Corp., 326 NLRB 522 fn. 1 (1998).
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bargaining agreement with the Union (Local 3) that was to have been in effect until May 31,
2009. However, sometime in February 2005, Mark shut down Three Rivers Steel and
established Tinney Rebar Services as a nonunion company.
In the summer of 2008, Jami Tinney, the spouse of Mark, held the position of president
of Tinney Rebar Services; Mark served as vice president; and Harry Tinney, Mark’s brother,
served as a field supervisor.2 Tinney Rebar Services also employed in its offices John
Gulakowski, a salaried employee whose duties included reviewing Federal and State tax
matters and estimating contract price quotes and detailing—blueprinting—rebar installations.
Tinney Rebar Services during the time employed about seven workers in its shop facilities,3 five
rebar fabricators and two truckdrivers; Tinney also employed two draftsmen who worked under
Gulakowski.
Although Tinney Rebar Services operated as a nonunion company, the Union had
outstanding issues with the Company stemming from Mark Tinney’s operation of Three Rivers
Steel, including the alleged nonpayment of welfare and pension contributions, the subject of a
suit in Federal court. This lawsuit was ongoing at the time of the discharges of the two alleged
discriminatees in late August 2008.
Around June 20, 2008, Tinney Rebar Services had contracted with the Commonwealth
of Pennsylvania to install rebar at a local high school construction project, the West Allegheny
High School (West Allegheny). This project under Pennsylvania law was deemed a prevailing
wage job which called for the payment of $29.13 in hourly wages and $18.12 hourly for total
fringe benefits for each employee assigned to the West Allegheny job. Tinney Rebar Services
employed mainly three employees on the West Allegheny site: Harry Tinney, George Cook,
and alleged discriminatee John Bascovsky.
During August 2008, representatives of the Union made about four visits to the West
Allegheny site and spoke to the Company’s installers, including Bascovsky, about wages. On or
about August 27, 2008, Tinney Rebar Services, through counsel, wrote to counsel for the Union
advising, inter alia, that representatives of the Union had harassed its employees on the West
Allegheny jobsite and interfered with them in the performance of their job. Tinney’s counsel
demanded that such activities cease immediately.4
On Friday, August 29, 2008, alleged discriminatee Bascovsky told Harry Tinney (Harry)
that he was quitting Tinney Rebar Services and would commence working for the Union the
following Tuesday; the Respondent terminated Bascovsky that day. On August 29, 2008, the
Respondent also terminated alleged discriminatee Joshua “Josh” Ferris.

2 Jami Tinney is the sole owner of the Respondent and is responsible for payroll and other
administrative matters; she is an admitted statutory supervisor and agent. Mark handled sales,
oversaw jobsite work, and tended generally to the operation of the business. Mark’s duties also
included interviewing, hiring, and firing of employees; he is an admitted statutory supervisor
and/or agent. The Respondent stipulated and agreed that Harry Tinney is likewise a statutory
supervisor/agent. (See GC Exh. 2.)
3 The Respondent’s facilities include two warehouse facilities which house corporate offices
and the fabrication shop. The warehouse facilities are about 50 by 125 feet in size.
4 See GC Exh. 6, a letter from Tinney Rebar Services to union counsel Joshua M. Bloom
dated August 27, 2008.
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IV. THE UNFAIR LABOR PRACTICE ALLEGATIONS
The complaint essentially alleges that on August 29, 2008, the Respondent immediately
terminated John Bascovsky, rather than allowing him to continue working until an alleged
agreed-upon time of his voluntary cessation of employment with the Company, because he
joined and supported the Union, all in violation of Section 8(a)(3) and (1) of the Act.
The complaint also essentially alleges that the Respondent violated the Act on August
29, 2008, by terminating Josh (formally Joshua) Ferris and since that date has failed and
refused to employ him because Ferris was the stepson of Bascovsky, that the Respondent
believed Ferris supported the Union, engaged in concerted activities, and to discourage
employees from engaging in protected activities.
V. THE PARTIES’ PRESENTATION OF THIS CAUSE
A. The General Counsel’s Witnesses and Relevant Testimony
The General Counsel called as its principal witness John Bascovsky, and Joshua (Josh)
Ferris as well as Mark and Harry Tinney.5
Bascovsky testified that he began his employment with the Respondent in January 2008,
and his last day was August 29, 2008. Bascovsky stated that during most of the summer of
2008, he was working at the West Allegheny High School job installing grade beams and
building rebar walls and step footers, the general kinds of applications for installing rebar in
buildings. Bascovsky believed this job commenced coincident with the end of the school term
around the first week of June. Bascovsky noted that his immediate supervisor to whom he
reported directly was Harry Tinney (Harry).6
Bascovsky recalled that at some point, other (non-Tinney) workers at the West
Allegheny site asked him whether he was being paid at the prevailing rate. Reacting to this,
Bascovsky said that he asked Harry about the matter. According to Bascovsky, Harry said that
he knew nothing about it, but would check with Mark Tinney (Mark). Later, according to
Bascovsky, Harry reported to him that Mark said that the job was not bid by the Company at the
prevailing wage rate but that if Bascovsky ever heard anything to the contrary, Harry would take
some action. Bascovsky stated he was being paid at the rate of $13 per hour on the West
Allegheny job.7
Turning to August 28, 2008, Bascovsky stated that he was working at the high school on
a grade beam with Harry, when Local 3 Representative Chad Rink came to the jobsite and
informed him that the Local would be hiring soon; Rink left an application and other information

5 The Tinneys testified under and pursuant to Rule 611(c) of the Federal Rules of Civil
Procedure, which governs the testimony of witnesses deemed adverse or “hostile” to the party
who called them.
6 Bascovsky volunteered that Jami Tinney never came out to the West Allegheny job and
also he had never seen Mark Tinney at the site.
7 As noted, the prevailing rate greatly exceeded the flat $13 rate. Mark Tinney testified and
acknowledged that the West Allegheny contract provided a prevailing rate of $29.13 per hour
and $18.12 per hour in fringe benefits. (Tr. 27.) See also GC Exh. 2, the Respondent’s payroll
records for the West Allegheny job.
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about the Union at the jobsite. Bascovsky said that while on break he read the paperwork and
ultimately took them home at the end of the day to read them more carefully.
Bascovsky stated that he decided that night to join Local 3 and, on the following morning
of August 29,8 told Harry of his intentions and that he was leaving primarily for financial reasons.
According to Bascovsky, Harry tried to talk him out of leaving, offering as an inducement the
Company’s planned purchase of a new machine for which he was being considered as an
operator. However, having made up his mind to leave, Bascovsky said that he, nonetheless,
asked Harry if he would like him to finish up that day or the next week or so. According to
Bascovsky, Harry said that the decision would be up to Mark ultimately and he would consult
with him.
Bascovsky testified that he waited for Mark to arrive, although Harry had said that he
could stay and work for the day. Bascovsky said that Mark arrived around an hour or so later
but walked past him while heading to the office. Bascovsky said that shortly thereafter Mark
approached him and literally threw a check at him, saying that this was his last paycheck and to
get the (expletive deleted) off of his property; Mark also said that he was going to sue him.
Bascovsky stated that he told Mark that he was sorry it had to be this way, gathered up his
personal tools, and left the Company for his residence.9
Bascovsky said that shortly after arriving at his residence, his stepson, Joshua Ferris,
knocked on the door. Bascovsky said that he asked Ferris why he was there and Ferris told him
that he had just been fired (by Mark) and the only “reason” given him (by Mark) was to go home
and ask your stepdad.
Bascovsky explained his relationship with Ferris and how Ferris came to be employed by
the Respondent. According to Bascovsky, Ferris’ mother was his high school sweetheart, but
they both married other persons. After their respective divorces, he and Ferris’ mother began
dating and decided to marry. Bascovsky said that Ferris was looking for work and the
Respondent (through Harry) had asked the employees if they knew of any prospective
employees. Bascovsky stated that he told Harry that his then girlfriend’s son was indeed
looking for a job and one with benefits and recommended Ferris to Harry, According to
Bascovsky, Harry gave him an application for Ferris; Bascovsky said he gave the application to
Ferris who was ultimately hired by the Respondent.
Bascovsky stated that Ferris’ mother and he decided to get married while attending the
wedding of a relative in Las Vegas, Nevada. Bascovsky said that he submitted for Harry’s
approval a request for time off form to the Company on August 7, 2008,10 requesting time off for
August 20, 21, and 22.

8 Bascovsky said that customarily he met Harry at the Company around 6:30 a.m. and they
would both ride to the West Allegheny site together. Another employee at the high school job,
George Cook, met them there as he lived very close to the school. On August 29, Bascovsky
said he had reported consistent with this practice at around 6:30 a.m.
9 Bascovsky said that he called Chad Rink of the Union and told him what had transpired.
Rink did not testify at the hearing.
10 See GC Exh. 7, a copy of Bascovsky’s leave request. Bascovsky noted that he
mistakenly entered on the form August 7, 2007, and should have indicated 2008. Bascovsky
noted that he added “wedding” in the remarks or comments part of the form. The form instructs
the employee to return the completed form to Jami Tinney and states, “No Form = No Pay.”
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Bascovsky said that he told “pretty much everyone down there” (meaning to me, the
employees and management presumably) of his plans to get married, but specifically Harry and
a number of shop employees, including Dominic Massella and Richard Liebert. Bascovsky
stated that he also spoke to Jami Tinney about going to Las Vegas (Tr. 83) and informing her
that upon his return, he would be requesting tax and insurance forms to change his status.11
Bascovsky noted that he also spoke to Mark about his marriage plans, he believed on
Tuesday, August 19 (a payday) while he was receiving his paycheck. However, Bascovsky
could not recall whether he told Harry that he was going to Las Vegas for another’s wedding or
that he himself was getting married. He noted, however, that Mark congratulated him on the
occasion.
Bascovsky testified that he and Ferris’ mother, Michelle, were married on August 21, in
Las Vegas. Bascovsky recalled that while in Las Vegas, he received a telephone call from
Harry congratulating him on his marriage and also informing him that Mark had hired Ferris who
would be starting work on the Monday Bascovsky was scheduled to return.12
Bascovsky related that his marriage decision and plans were made “sort of last minute,”
and because he and Michelle did not want to upstage the relative’s marriage, they decided not
to tell the family of their plans. Accordingly, Bascovsky stated that he did not tell Ferris until
after the fact by telephone from Las Vegas on August 21. Bascovsky stated that upon his return
to work the following Monday, August 25, he told “everyone” of his marriage, including Harry;13
however, he could not recall speaking to Mark or Jami about his marriage.
Bascovsky stated that his regular practice was to leave the shop for his assignments in
the field around 6:30 a.m. As far as he knew, the office personnel usually did not arrive until 8
or 9 a.m., but always later than he. Accordingly, Bascovsky said that he never had the
opportunity to meet with Jami and change his tax and insurance forms before his discharge.
Joshua (Josh) Ferris testified that his employment with the Respondent began on
August 25, 2008; his last day of work was August 29, 2008.
Ferris stated that his duties and responsibilities for the short time he was employed
included working in the shop building rebar caissons, basically steel or iron frameworks or
skeletons of rebar square or circular in shape that are filled with concrete and employed in the
building construction industry.
Ferris recalled that Mark Tinney interviewed him for the job on about August 19 and
provided him information about the job he was applying for, as well as the Company.14 Ferris

11 Jami Tinney did not testify at the hearing.
12 Bascovsky said that he did not speak directly with Harry but received the call by way of a
message recorded on his phone. Bascovsky stated that Harry specifically mentioned Ferris as
his “stepson” in the call. Bascovsky noted that he erased the message from his phone as he
customarily does and could not produce the recorded message at the trial.
13 Bascovsky volunteered that at the time Harry also was contemplating marrying a woman
he had dated in high school and both joked about Ferris now being his stepson and now being
“tied down” by marriage. Bascovsky related that Ferris’ natural father had not really been
present in his life and he hoped to help him out and called Ferris his stepson out of this concern.
Bascovsky stated at the hearing that he is 41 years old and Ferris is 23.
14 Ferris identified R. Exh. 8 as the application he submitted to the Respondent on August
Continued
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stated that at the time of the interview with Mark, he told him that the Company was looking for
workers and that Bascovsky had provided him an application. Ferris also testified that he told
Mark that Bascovsky was his mother’s boyfriend. Ferris, however, admitted that he did not
mention to Mark that Bascovsky and his mother enjoyed a more serious relationship such as
being engaged because he did not know this to be true. Ferris stated that he did not refer to
Bascovsky as “step dad” because the marriage to his mother had not taken place at the time of
the interview. Ferris also noted that he did not personally know Harry Tinney before making
application.
Ferris related certain events taking place on Thursday, August 28, the day before he
was discharged by the Respondent.
According to Ferris, that day he was not feeling well, suffering as he was from a week-
long bout with a stomach flu. Ferris said that he spoke to Harry Tinney about his condition and
asked him if he could leave early and make up the hours over the next couple of days. Ferris
testified that he told Harry that he had contracted the flu the week before but now needed to see
a doctor as his condition had not improved. According to Ferris, Harry said that he would speak
to Mark and get back with him. According to Ferris, after a time Harry told him to go ahead and
take leave. Ferris stated that he asked Harry about the need to produce a doctor’s excuse and
Harry said that this would not be necessary; simply to report to work the next day. Ferris also
testified that Harry did not tell him he was required to submit a leave request form.
Ferris said that he punched out that day at about 11:02 a.m.15 and went immediately to
the doctor’s office where he was seen by a physician who prescribed an antibiotic for his
condition and instructed him to go home, rest, and drink fluids. Ferris admitted that he had no
proof of his having been to the doctor, no bill, or any other documentation because the
insurance plan was in his mother’s name.16 Ferris also testified that he did not believe any such
proof was necessary based on Harry’s advice.
Ferris stated that he reported for work on Friday, August 29, at about 6:44 a.m. and
immediately went to work building caissons. At about 9 a.m., Ferris said he was approached by
Mark who asked him to accompany him to the front of the shop and initially asked if he knew
that his stepfather had left; Ferris responded that he did not know and asked Mark why.
According to Ferris, Mark said that he had fired Bascovsky, that it just was not working out.
According to Ferris, he said “okay” and turned away from Mark to go back to his assignment,
whereupon Mark handed him an envelope containing his paycheck. Ferris said he asked Mark
what the check was for and Mark said he had to let him go, that he was not working out. Ferris
said he again asked why and Mark said, “Go ask your stepfather about it.”
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19. He also identified R. Exh. 1, the Tinney Rebar Services’ notice of rules and regulations and
policies as of January 2008. Ferris stated that on that day he received it, he read it (at least in
part), and understood that he was an “at will” employee although he did not know what this term
meant at the time. See also R. Exh. 9, a copy of a notice and regulations acknowledgement
and acceptance form signed by Ferris on August 27, 2008. Ferris acknowledged that he
received the aforementioned rules and regulations document.
15 Ferris identified GC Exh. 9 as a copy of his timecard for the week covering Monday
through Thursday of the week beginning August 25, 2008, which indicated that he punched out
at 11:02 on August 28.
16 Notably, Ferris did not produce a copy of the prescription or the bottle containing the
medicine he claimed was prescribed for him on August 28, nor did he produce a copy of his
mother’s insurance policy.
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Ferris said he simply turned away, gathered his belongings, and was about to leave the
premises when a coworker (unidentified) asked him where he was going. Ferris said he told the
man that he had been fired, to which the coworker asked why. Ferris said that he told him he
was told to ask his stepfather about it. Ferris said that while he was talking to the worker, Mark
came out and ordered him off the property saying, “Get the [expletive] off the property.” Ferris
said he then proceeded to Bascovsky’s home to get a reason for his discharge.
Ferris testified that he had never received a written or verbal discipline during his tenure
with the Company although he did receive guidance (his word) for functions he did not know
how to do or for which he needed help; Ferris said he never received any “guidance” for things
he might have done incorrectly.
Harry Tinney testified that he was the field supervisor on the West Allegheny High
School project, on which John Bascovsky and another employee, George Cook, were working
during the summer of 2008. Harry acknowledged that he was onsite when the representatives
of the Union visited the project on several occasions in August, and after each visit he called his
brother Mark to tell him what had transpired. Harry stated that he viewed these visits as an
interference with the job and routinely reported any such interference to the office. Harry
recalled Chad Rink as one of the visiting union representatives and viewed his repeated visits
as an interference with his crew’s work performance and reported him to Dan Fornello, the West
Allegheny project foreman employed by the general contractor. Harry stated that there were
union workers on the project and that he complained to Fornello that Rink should be dealing
with them as opposed to coming on the Respondent’s worksite and interfering with his workers.
Harry said that he suggested to Fornello that Rink should direct any questions to the project
office.
Harry testified that on possibly the Thursday before Labor Day he and Bascovsky were
in a ditch building a grade beam while Cook was handing them rebar, and Rink again came
onsite and began a conversation with Cook, possibly including discussions of prevailing wages.
Harry stated that he was not completely sure of this, but did recall that Rink told Cook that he
had heard there was a lot of work (with the Union), possibly in a casino construction project; that
he felt the (Tinney) employees did good work and the Union wanted good workers for this
project. Harry stated he told Rink that his workers had no time to talk to him and Rink left.
Harry testified that on the following Friday (August 29) morning, Bascovsky informed him
that he was going to work for the Union, that he was quitting. According to Harry, Bascovsky
apologized for the short notice but said he could not pass up the money. Harry said that he
definitely tried to talk Bascovsky out of quitting but could not recall informing him about a new
machine the Company was going to buy. According to Harry, Bascovsky told him that he was to
start with the Union on the Tuesday following Labor Day (Monday), on which day no one was
scheduled to work at West Allegheny.
Mark Tinney testified and admitted that business agents from the Union had visited the
West Allegheny site about four times and that Union Representative Chad Rink visited three
times and another, Gregory Christy, once. Mark said that his brother Harry called him after
each visit. Mark also related that Harry told him the union representatives had spoken to his
employees, Bascovsky and George Cook, at the site about there being a lot of work coming up
for those working with the Union, and that they had mentioned to Harry that his workers were
good workers and performed well. Mark said that Harry told him that Chad Rink in particular
wanted them to work for the Union and, toward that end, left a union business card, a (union)
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pay schedule, and applications at the worksite on the carpenters’ stool/work bench on
August 28.
Turning to the morning of August 29, Mark admitted to receiving a call from Harry who
told him that Bascovsky had decided to go to work for Local 3. Mark admitted that on that day
he asked John Gulakowski to prepare a final check for both Bascovsky and Ferris.17 Mark
conceded that he decided to cut Bascovsky’s final check based on his brother’s telling him that
he was going to work for the Union. Mark said that his decision to terminate Ferris was made
the night before, on August 28.
B. The Respondent’s Witness and Relevant Testimony
Mark Tinney testified that as a general proposition he is customarily available throughout
each business day on company premises, either in the shop area or in the office. He stated that
his wife, Jami, while also readily available throughout the workday, does not work full-time at the
Company. However, John Gulakowski, his detailing employee, is customarily onsite all day and
is readily available to any employee.
Tinney stated that on Thursday, August 28, he was onsite at the Company the entire
day, especially during the morning hours.18
Turning to the matter of Ferris, Mark stated that while he could not recall the precise
date he interviewed him and reviewed his application pursuant to hiring him, he did annotate
Ferris’ application (R. Exh. 8) with a highlighted and circled remark “Friend [of Bascovsky]” and
“$11 [per hour].”19 Mark recalled that Ferris himself told him he was a friend of Bascovsky at
the interview session.
Mark testified that Ferris did not request from him any time off because of illness on
Thursday, August 28, and he was not aware of Ferris’ making any such request of his wife.
According to Mark, he and John Gulakowski discussed terminating Ferris because he had left
work without informing anyone in management and because other employees had complained
about Ferris’ poor work habits in the shop.20
Mark insisted that he had no knowledge of Bascovsky’s relationship with Ferris’ mother
and that Bascovsky had only mentioned in passing that he was going to Las Vegas to attend a
friend’s wedding, to which he made no response.

17 Mark noted that Gulakowski’s duties did not include preparing payroll, so he asked his
wife Jami to “walk” Gulakowski through the payroll computer program by telephone.
18 Mark noted that he generally handles and generates sales telephonically from the office
and does not very often go out and visit customers. He volunteered that on occasion he does
go out to the field to check on the status of jobs.
19 The application contains a box stating “Referred By.” The box contains the names Harry
Tinney and John Bascovsky with an arrow drawn by Mark from Bascovsky’s name and the word
“Friend” and “$11” is circled next to friend.
20 Mark admitted that when interviewed by the Board agent investigating the matter, he did
not mention in his statement anything about Ferris’ unexcused absence and could not
remember providing a copy of Ferris’ time to her. Mark said that he basically answered her
questions and could not recall her asking about whether Jami was present on August 28.
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Regarding his decision to terminate Bascovsky, Mark stated it was his Company’s policy
to release immediately any employee who gives notice of an intention to quit. He noted that his
brother, Harry, called him at home around 6:45 a.m. on August 29 and informed him of
Bascovsky’s decision to quit.
Harry Tinney testified that he worked a full day on Thursday, August 28, from about
6 a.m. or a little later until around 2 or 2:30 p.m. at the West Allegheny site, along with John
Bascovsky and George Cook. Harry stated that he did not leave the site at any time during that
day.21 Harry specifically denied speaking with Ferris on August 28 and in fact volunteered that
he has never had a conversation with him except “once or twice,” saying hello or good morning.
Harry emphasized that Ferris did not ask him for permission to leave work because of illness on
August 28.22
Harry stated that he was aware of Bascovsky’s relationship with Ferris’ mother, that he
was dating her. Harry said that he was also aware that Bascovsky went to Las Vegas, that
Bascovsky had told him that he was going to attend a friend’s wedding. Harry testified that
Bascovsky did not tell him that he himself was getting married. Harry also said that he simply
could not recall calling Bascovsky while he was in Las Vegas. Harry related that George Cook
later told him that Bascovsky had married Ferris’ mother on his return from Las Vegas. Harry
noted that he never informed Mark about Bascovsky’s relationship with Ferris’ mother.
Harry volunteered that he was “pretty new” at the Respondent’s business and that he
knew some of the shop workers by name and they (probably) knew him because he was Mark’s
brother. He stated that workers only occasionally have asked him questions about work-related
problems. Harry noted that he knew that Gulakowski worked in the office and sometimes came
to the West Allegheny site to handle problems with blueprints; that Jami Tinney, to his
knowledge, handled office matters and did not work in shop, but certainly not in the field; and
Mark, to his knowledge, handled sales from the office. Harry stated that he actually did not
know who was in charge of the shop but guessed that it was Gulakowski.
Regarding Bascovsky’s termination, Harry stated that when Bascovsky informed him of
his intention to quit the Company and join the Union, he immediately called Mark but had no
hand in the decision to discharge him. Harry noted he was not present when either Bascovsky
or Ferris was actually terminated.
John Gulakowski testified that he was employed by the Respondent as a salaried
employee whose duties included the timely submission of his quotes and detailing blueprints for
projects. Gulakowski stated that he has not worked in the field for sometime, although his job
occasionally requires him to visit a site to deal with problems associated with the project
blueprints.

21 On cross-examination, Harry stated that he was working at the West Allegheny site all of
the summer of 2008, and he rarely, if ever, left the site to return to the shop. If he needed
something, he would send a worker to get it. Whenever he left the site, Harry said it was mainly
to get coffee. Notably Bascovsky, testifying on rebuttal, said that he could not be sure whether
Harry left the worksite on that Thursday although Harry at least once or twice a week in his view
did leave the site to go shop for something or the other. (Tr. 145.)
22 On my examination, Harry testified that he never approved leave sick or otherwise for any
(shop) employees because this was not within his responsibility as a field supervisor. (Tr. 193.)
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Gulakowski stated that he was aware Bascovsky was employed by the Respondent and
he was somewhat familiar with the circumstances surrounding his leaving the Company.
Gulakowski said that on the morning of August 29, he learned from Harry Tinney that
Bascovsky was quitting to go to work for the Union, that he was to start the new job that
following Monday. Gulakowski said he also spoke to Mark Tinney over the phone about the
matter. According to Gulakowski, Mark said that he would be in shortly, but to compute
Bascovsky‘s hours and prepare a final check for him. Gulakowski said that Mark also asked
him to prepare a final check for Ferris in that conversation. Gulakowski stated that he did as he
was instructed and prepared the checks for both Bascovsky and Ferris.
Gulakowski recalled that Ferris was hired by the Respondent to work in the warehouse;
beyond that, he had no first hand knowledge that Bascovsky was dating Ferris’ mother or that
he had married her until after Bascovsky had returned from Las Vegas.
Gulakowski noted that some of the warehouse employees23 approached him and
complained about Ferris, saying that he was not doing a great job; he was disappearing,
walking away from his tasks a lot throughout the day. However, according to Gulakowski, it was
Ferris’ leaving the job early on Thursday (August 28) without giving a reason that led to his
being terminated.
Gulakowski testified that both he and Mark had heard the complaints about Ferris and
then, later in the day on Thursday, they discussed his situation; on Friday morning, he and Mark
decided to let him go.
Gulakowski stated that he was present when Mark terminated Bascovsky, but he did not
hear any conversation they might have had; he also saw Mark hand him his paycheck.
Gulakowski also said that he was present when Mark terminated Ferris. According to
Gulakowski, Mark told Ferris he was not working out, had left the job (repeatedly), and
especially on Thursday, the day before. Gulakowski stated that essentially Ferris was absent
without leave (AWOL) for half the day; the Company did not know where he went so he was let
go. According to Gulakowski, Ferris simply took his check and left without saying anything in
response. Gulakowski stated he was not aware of Mark’s telling Ferris to talk to his stepdad.
Richard Liebert testified that he has been employed by the Respondent since about
July 19, 2007, and knew Ferris and Bascovsky, both of whom24 worked for the Company.
Liebert said that he usually worked in the shop and never made any rebar installation in the
field.

23 Gulakowski could not recall the names of any of the employees who complained about
Ferris’ work habits, however, simply saying that there was more than 1 of the 12 employees
working in the shop who complained about him. Gulakowski admitted that he did not issue
Ferris any warnings, verbal or written, and in fact did not speak to him at all, presumably during
Ferris’ short tenure with the Respondent. Gulakowski also volunteered that he has no role in
handling employee leave requests and such matters would not normally come to his attention.
24 Liebert testified that he saw Bascovsky occasionally on a social basis in the town taverns.
Liebert stated that Bascovsky told him on one such occasion after his termination that he was
going to shut Mark (Tinney) down. On cross-examination by the counsel for the Charging Party,
Liebert denied telling Bascovsky that Mark told the employees that he would give them $1000 to
kick Bascovsky’s rear end. Liebert also denied telling Bascovsky that he would lie to keep his
job at Tinney Rebar because he did not know he was going to testify in that matter until the
week prior to the trial. (Liebert stated that he was not subpoenaed to testify by either party.)
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Liebert stated that in his view Ferris was not a good worker because he could not really
perform the job; he did not seem to “catch on” to building the rebar, basically repetitive work.
Also, Liebert said that he had to ask Ferris to pick up his pace a little, to help others out, and
had to instruct him on how to do job functions better. However, Liebert stated that he never told
Gulakowski that there were problems with Ferris and in fact could not recall discussing Ferris
with anyone in management, and not with Mark in particular.
Liebert noted that he and his fellow workers did not openly discuss Ferris or their view
that his work was so deficient that he should have been fired. Liebert recalled that he spoke to
fellow shop worker Domenic Massella about Ferris’ poor performance, that he was not a good
worker and just was not “getting” it in effect. Liebert testified that as far as he knew Ferris only
worked about 3 to 4 days for the Company, having left the Company on a Thursday or Friday.
Dominic Massella testified that he is a current employee at Tinney Rebar Service,
working as a laborer whose main job is fabricating rebar in the shop, but sometimes in the field.
Massella stated that Ferris worked for the Company for a few days and he worked with
him building rebar caissons on occasion. According to Massella, Ferris would work sometimes
and sometimes he would kind of stand there simply watching. Massella stated that he knew
that Ferris left work early one day, but could not say he “disappeared” that day or others by
going to the bathroom or otherwise not being on the job for long periods of time. Massella noted
that on the day Ferris left early, he did not talk to him directly and did not know if Ferris spoke to
anyone on that day. According to Massella, if he wanted to leave early, he would speak to
someone in charge—either Mark, Gulakowski, or Harry (Tinney).25
Massella stated that he also knew John Bascovsky and that while employed with the
Company he got married. However, to Massella, he only found out about Bascovsky’s marriage
after the fact when he returned to work.
VI. CONTENTIONS OF THE PARTIES
A. The General Counsel
The General Counsel contends that the Respondent had harbored animus against the
Union since at least 2005, when Mark Tinney decided to shut down his union company—Three
Rivers Steel. Since that time, she further contends, the Respondent’s antipathy to the Union
was inflamed by the Union’s pension and welfare Federal suit against Mark Tinney’s companies
in April 2008, as well as the Union’s representatives coming on the West Allegheny jobsite
speaking to the Respondent’s employees about wages in the summer of 2008. The General
Counsel submits the Union’s visitations in August 2008 were particularly galling and vexatious
to the Respondent because the West Allegheny job was a prevailing wage job and Mark Tinney
knew he was paying Bascovsky less than half of what the job called for. She notes that the
Respondent tried to halt the Union’s visits first through Harry’s protests to the union
representatives and later the project’s foreman. Then, when this proved unavailing, the
Respondent sent a letter to the Union’s attorney complaining of harassment. In spite of these
efforts, the union representatives came back to the West Allegheny site on August 28 in an
obvious attempt to recruit the Respondent’s employees to work for it.

25 Massella did not state that he had actually sought permission to leave work early and had
in fact consulted with any of the three persons he mentioned.
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The General Counsel argues that it is against this background of hostility toward Local 3
that the Respondent’s angry, accelerated, and summary discharge of Bascovsky on August 2
when he announced his decision to work for the Union took place, and it clearly demonstrates
the Respondent’s unlawful motivation. She asserts further that the Respondent’s asserted
reasons for Bascovsky’s discharge were pretextual and should be rejected.
Regarding the termination of Ferris, the General Counsel contends that the credible
evidence of record clearly showed that he was familiarly associated with Bascovsky, that Mark
Tinney knew of this association and fired Ferris because of that close association and in
retaliation against Bascovsky for engaging in protected activity—working for the Union. In short,
Ferris was punished derivatively, so argues the General Counsel, for his association with an
employee who chose to exercise his statutorily protected rights. She contends further that
Ferris, contrary to the Respondent, was not fired for poor performance and/or leaving the job
without permission. She notes that the manner of Ferris’ termination was not even consistent
with the Company’s normal practice wherein Jami Tinney prepared the employees’ checks. The
General Counsel essentially asserts that Mark Tinney, angry with and upset over Bascovsky’s
decision to quit and join the Union, in knee-jerk fashion decided to visit his wrath on
Bascovsky’s stepson, Ferris, and punish him also with a summary but pretextual discharge.
The General Counsel submits that the Respondent’s claim that Ferris was such a poor
worker that it was justified in discharging him simply does not hold water. She notes that the two
shop mates called by the Respondent, while opining that Ferris was not necessarily a good
performer, never told management about his deficiencies. Most notably, the General Counsel
asserts that because the Respondent employed about seven employees in the shop and called
no one to corroborate Gulakowski’s and Mark Tinney’s testimony that they had received
complaints from other employees about Ferris’ work habits, an adverse inference should be
drawn by the trier of fact that their testimony would not be supported.
The General Counsel asserts that no one in management ever spoke to Ferris about
having left early on August 28, in short never investigated the matter; and this failure casts
doubts on the legitimacy on the Respondent’s termination for this reason. She also notes that
Mark Tinney admitted that the Company employed security cameras around the area where
Ferris worked. She contends that the Respondent failed to produce these tapes which would
presumably have recorded Ferris obtaining the approval of Harry Tinney to leave early on the
day in question. She submits that this failure also warrants an adverse inference.
Finally, the General Counsel contends that the Respondent’s witnesses, principally the
Tinney brothers, are not deserving of credible consideration. She notes that Mark demonstrated
dishonesty in his business relations with the Commonwealth of Pennsylvania, specifically his
paying less than the prevailing wages to his workers and including a salaried employee,
Gulakowski, as an hourly employee on the pay sheets. As for Harry, she contends his
recollection of events was poor to the point of disbelief.
The General Counsel submits that Gulakowski’s testimony that he and Mark Tinney
discussed Ferris’ unexcused absence Thursday evening and decided to terminate him at that
time did not make sense. She asserts that if they were truthful, Mark would not have waited
until Harry told him of Bascovsky’s decision the next morning to have Jami Tinney explain to
Gulakowski how to prepare final checks for both men.
The General Counsel also asserts that Liebert’s testimony appeared to be coached.
Massella remembered little about Ferris’ work habits and, moreover, did not support the
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Respondent’s contention that Ferris was such a poor worker that his termination for that reason
was justified. The General Counsel also notes that inasmuch as both Liebert and Massella are
currently employed by the Respondent, they have a clear bias in favor of their employer.
By contrast, the General Counsel asserts that both Bascovsky and Ferris were
straightforward, honest, and consistent, and therefore should be credited.
B. The Respondent
The Respondent contends that on Friday, August 29, Bascovsky, an at-will employee,
told Harry Tinney that he was quitting his employment at the Respondent to join the Union; he
indicated that he was willing to work the remainder of that day, but would be starting with the
Union on the following Tuesday after Labor Day. However, Mark Tinney decided, in the interest
of preserving employee morale, to avoid possible damage by Bascovsky’s remaining onsite,
and consistent with his company policy decided to terminate Bascovsky immediately. The
Respondent submits that its action under these circumstances and for these legitimate business
reasons posed no violation of the Act.
Regarding Ferris, the Respondent contends that according to his workmates, Ferris
performed poorly on the job and compounded this deficiency by leaving work early on August
28 without permission. Based on his poor record and consistent with company policies, the
Respondent asserts that Mark Tinney decided to terminate Ferris. The Respondent notes that
Ferris clocked in for work at 6:45 a.m. on August 28, and Harry Tinney testified that he and
Bascovsky, as was their normal practice, left for the West Allegheny job at 6:30 a.m. The
Respondent also asserts that Harry Tinney also credibly testified that he did not return to the
shop during the entire workday and could not have approved Ferris’ early departure at
11:02 a.m. on August 28.
The Respondent submits that Ferris testified falsely about obtaining Harry’s permission
to leave early. The Respondent also implies that Ferris stated reason for leaving work early—
illness requiring medical attention—was also false because he provided no credible evidence of
having seen a physician who allegedly prescribed antibiotics for his condition.
The Respondent further asserts that Ferris, having worked at the Company for several
days must have known that either Mark, Jami, or even John Gulakowski readily were available
and could have been consulted about his need for time off. Yet, Ferris did not seek permission
from either of them. Rather, he claimed to have sought permission from Harry, a field supervisor
who had little or no contact, let alone administrative or managerial involvement, with the shop
workers. The Respondent submits that Ferris’ testimony is not worthy of belief.
The Respondent also contends that Bascovsky was not credible. The Respondent
notes that while Bascovsky claimed to have told everyone in the shop about his plans to marry
Ferris’ mother in Las Vegas but, incredibly, did not tell Ferris about his plans, and Ferris did not
know from his shop mates. Furthermore, Harry Tinney, with whom Bascovsky worked, candidly
testified that he knew that Bascovsky was dating Ferris’ mother but he was unaware of the
claimed marriage plans or the marriage until after the fact. The Respondent also points out that,
according to employee Massella, Bascovsky’s marriage was not discovered until after he
returned from Las Vegas. The Respondent submits that neither Mark Tinney nor John
Gulakowski was aware of Bascovsky’s marriage to Ferris’ mother, and that this connection to
any claim of a retaliatory discharge of Ferris fails for lack of credible evidence.
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On balance, the Respondent submits that both Bascovsky and Ferris were terminated
for good and legitimate cause.
VII. APPLICABLE LEGAL PRINCIPLES
Section 8(a)(3) of the Act26 provides that it shall be an unfair labor practice for an
employer to discriminate in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the Board announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)27 turning on employer motivation.
First, the General Counsel must make a prima facie showing sufficient to support the inference
that protected conduct was a motivating factor in the employer’s decision. This showing must
be by a preponderance of the evidence. Then upon such showing, the burden shifts to the
employer to demonstrate that the same action would have taken place even in the absence of
the protected conduct. The Board’s Wright Line test was approved by the United States
Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1983).
Under the Wright Line framework, the General Counsel must establish four elements by
the preponderance of evidentiary standard. Accordingly, the General Counsel must first show
the existence of activity protected by the Act, generally an exercise of an employee’s Section 7
rights.28 Second, the General Counsel must show that the employer was aware that the
employee had engaged in such activity. Third, the General Counsel must show that the alleged
discriminatee suffered an adverse employment action. Fourth, the General Counsel must
establish a link or nexus between the employee’s protected activity and the adverse
employment action. If the General Counsel establishes these elements, she is said to have
made out a prima facie case of unlawful discrimination, or a presumption that the adverse
employment action violated the Act.29
The Respondent, in order to rebut this presumption, is required to show that the same
action—the adverse action—would have taken place even in the absence of protected activity
on the employee’s part. Manno Electric, 321 NLRB 278 (1996); Farmer Bros Co., 303 NLRB
638 (1991).
While the Wright Line tests entails the burden shifting to the employer, its defense need
only be established by a preponderance of evidence. The employer’s defense does not fail

26 See 29 U.S.C. §158(a)(3). Notably Sec. 8(a)(3) prohibits the discriminatory treatment of
both union and nonunion employees if the employer’s conduct was motivated by antiunion
animus. Thorgren Tool & Molding, 312 NLRB 622 (1993).
27 See Sec. 8(a)(1) of the Act (Sec. 158(a)(1)) makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in Sec. 7 of the Act.” Because a violation of Sec. 8(a)(3) often entails a wrongful
interference with employee rights, these Sections of the Act are often charged conjunctively in
most unfair labor complaints.
28 The protected activity includes not only union activities but also invocation and assertion
of rights guaranteed employees under Sec. 7 of the Act. NLRB v. City Disposal Systems, 465
U.S. 822 (1984); Interboro Contractors, 157 NLRB 1295 (1966).
29 Yellow Transportation, Inc., 343 NLRB 43 (2004); Tracker Marine, 337 NLRB 644 (2002).
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simply because not all of the evidence supports, or even because some evidence tends to
negate it. Merillat Industries, 307 NLRB 1301, 1303 (1992).
It is worth a reminder that the Board admonishes judges considering an employer’s
defense(s) to the actions taken against employees not to substitute their business judgment for
that of the employer, because the action taken may have been exercised on the basis of the
employer’s particularized business judgment. Lamar Advertising of Hartford, 343 NLRB 261
(2004); Yellow Ambulance Service, 342 NLRB 804 (2004). The Board, moreover, has
emphasized that the crucial factor is not whether the business reason was good or bad, but
whether it was honestly invoked and in fact was the cause of the action taken. Framan
Mechanical, Inc., 343 NLRB 404 (2004).
It is also worth noting that proving discriminatory motive and animus is often elusive.
Accordingly, the Board has held that animus or hostility toward an employee’s protected and
concerted activity or union activity may be inferred from all the circumstances even without
direct evidence. Therefore, inferences of animus and discriminatory motive may derive from
evidence of suspicious timing, false reasons given in defense, failure to adequately investigate
alleged misconduct, departures from past practices, tolerance of behavior for which the
employee was fired, and disparate treatment of the discharged employees. Adco Electric, 307
NLRB 1113, 1123 (1992); enfg. 6 F.3d 1110 (5th Cir. 1993); Electronic Data Systems Corp.,
305 NLRB 219 (1991); Bryant & Cooper Steakhouse, 304 NLRB 750 (1991); Visador Co., 303
NLRB 1039, 1044 (1991); and In-Terminal Service Corp., 309 NLRB 23 (1992).
Most notably for the instant litigation, the Board has held that an employer may violate
Section 8(a)(3) by accelerating the termination of an employee who gives notice of his intent to
resign his employment if it can be shown that the accelerated departure decision was connected
to protected activity. Gelita USA Inc., 352 NLRB 406 (2008).30
Also, it is clear that an employer may violate the Act by discharging an employee
because of his relationship with another person who has engaged in protected activity.
Thorgren Tool and Molding, supra, 628, 631; Harbor Cruises, Ltd., 319 NLRB 822, 841 (1995);
and PJAX, 307 NLRB 1201, 1203–1205 (1992), enfd. 993 F.2d 878 (3d Cir. 1993).31
Discussion and Conclusions
The charges against the Respondent reduced to their essence are that the Company
unlawfully discriminated against Bascovsky by accelerating his departure from the Company
because he announced his intention to work for the Union and, as to Ferris the Company,
knowing of their close relationship, terminated him in retaliation for Bascovsky’s action. Thus,
this case presents a somewhat unusual scenario in that one of the alleged discriminatees
desired voluntarily to end his employment and the other discriminatee lost his job derivately, or
so it is alleged, because of the former’s decision.

30 See also Buckeye Electric Co., 339 NLRB 334, 337–344 (2003), which also deals with the
accelerated termination of an employee who announced his intention to work for a union and
engaged in protected activities before his departure.
31 Administrative Law Judge Leonard Wagner, quoting the Court of Appeals for the Seventh
Circuit, “To retaliate against a man by hurting a member of his family is an ancient method of
revenge, and is not unknown in the field of labor relations,” determined that Sec. 8(a)(3) was
violated by the employer who fired the brother of a person it believed was responsible for a
union organizing campaign at one of its facilities (at 1203).
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Turning to the circumstances surrounding Bascovsky’s termination, it is clear that the
Respondent, mainly through Mark Tinney, and the Union had been at odds with one and the
other, but especially so during the month of August 2008. In my view, it was during this month
that the parties’ relationship took a serious turn for the worst. Notably, the Union sent its
representatives—none of whom testified at the trial—to the West Allegheny jobsite with what I
view as a very pointed attempt to recruit—not organize—the Respondent’s workers. It also
seems clear, at least inferentially, that wages, whether prevailing or not, were a major part of the
Union’s overtures to and enticement of the Respondent’s employees to come to work for it.
The Respondent was not pleased with the Union’s efforts to recruit its workers and as a
consequence fired off the protest letter of August 27 to the Union. In my view, it was the
Union’s recruitment efforts, and not necessarily the Union’s ongoing lawsuit32 against Tinney
Rebar Services that was the matter over which the Respondent became hostile to the Union.
Of course, one has to acknowledge that the suit was not helpful in terms of the parties’
relationship and the Respondent’s attitude toward the Union. In agreement with the General
Counsel, the lawsuit could plausibly be a component of the Respondent’s animus to the Union
at all material times.
It should be noted that Bascovsky, by all accounts, was a very good rebar worker whose
performance was evidently noticed by the Union and to a certainty was appreciated by the
Respondent, especially his immediate supervisor, Harry Tinney. On August 28, in spite of the
Respondent’s protests against the union representatives’ “interference,” Union Representative
Rink again visited the West Allegheny job and this time left union applications and presumably
wage-related documents for Bascovsky’s consideration. Bascovsky decided the evening of
August 28, to take the Union up on its offer. Then, early on August 29, he informed Harry of his
intentions to quit and commence working for the Union starting on Tuesday, September 2, the
day after Labor Day.33 In my view, Bascovsky’s decision to quit, while made rather hastily and
with very short notice, was one he was on all points entitled to make.
First, it is undisputed that Bascovsky was an at-will employee of the Respondent,
meaning that he and the Respondent were both free to terminate their employment relationship
“at any time and for any reason.”34 Second, the Act includes among an employee’s several
rights the right to associate with unions, here to work for the Union. The issue is whether the
Respondent, once apprised of Bascovsky’s decision and his reasons, violated the Act by
essentially summarily terminating him—accelerating his discharge as it were—because of his
decision to work for the Union.

32 See GC Exh. 3, copies of the complaint and related paperwork filed by the Union in
Federal district court against Three Rivers Steel Corp. and Tinney Rebar Service Inc., on April
25, 2008. The suit was resolved and the case closed on November 10, 2008.
33 In this regard, I have credited Harry’s version of his encounter with Bascovsky on
August 29. Bascovsky may have offered to finish up any work at the West Allegheny site for
that Friday and even may have offered to stay another week. However, I believe that
Bascovsky planned to start with the Union on September 2. Bascovsky testified to this point on
direct examination by the General Counsel.
In this regard, I note also that Bascovsky, called as a witness by the Respondent, testified
that he gave notice to the Respondent that he was leaving to work for the Union the following
Tuesday (Tr. 145.)
34 See R. Exh. 1, a copy of Tinney Rebar Service, notice of rules and regulations and
policies as of January 2008.
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In agreement with the General Counsel, for purposes of Wright Line I would find and
conclude that the Respondent knew that Bascovsky was engaging in a protected activity, here
opting to “associate” for employment purposes with the Union; that the Respondent harbored
animus—principally bottomed on its resentment of the Union’s attempt to recruit its workers, and
successfully so with respect to Bascovsky—against the Union during the month of August 2008,
and that Bascovsky’s decision to terminate employment with the Respondent in favor of the
Union was a motivating factor in the Respondent’s decision to let him go on August 29.
Thus, it would appear that the General Counsel has met her initial burden under Wright
Line. However, as noted above, I have found and concluded that Bascovsky was an at-will
employee who clearly legitimately and voluntarily announced his decision to leave the
Respondent’s employ and that for all intents and purposes his last day would be that very day.
Moreover, there is no dispute that he was given a final check by the Respondent covering the
pay period August 24–30, 2008, except for about 6 hours for which he was not paid on
August 29.35
It should be noted that the Respondent considered its ordinary workweek for payroll
purposes to be Sunday through Saturday;36 however, Bascovsky and others employed on the
West Allegheny job worked only from Monday through Friday, but not on holidays.37
So in point of fact as I view the matter, Bascovsky’s last day would have been Friday,
August 29, because he would not have ordinarily worked on Saturday, August 30, and Sunday,
August 31, and certainly not the Labor Day holiday—September 1.
The General Counsel’s theory seems to rest on Bascovsky’s testimony that he offered to
work the entire day (Friday) (or perhaps the following week) to wrap up things at the worksite;
the Respondent’s rejection of his offer was unlawfully motivated; and, therefore, Bascovsky’s
tenure was unlawfully accelerated.
Having met her initial burden under Wright Line, I turn to the Respondent’s defense.
The Respondent essentially asserts that consistent with Bascovsky’s status as an at-will
employee and Mark Tinney’s established practice or policy of immediately terminating
employees who announce their intention to leave, the Respondent (through Mark Tinney) would
have released him immediately as it did, irrespective of his having engaged in protected activity.
Notably, the General Counsel contends that Mark Tinney generally was not credible. I
note that Mark exhibited a somewhat hostile demeanor at trial, and the entries on the payroll
documents that he submitted to Pennsylvania pursuant to the West Allegheny contract were
suspicious and of questionable honesty.
That said and acknowledged, I, nonetheless, found his testimony regarding his handling
of personnel matters entirely logical, rational, and, hence, credible in the context of the

35 See GC Exh. 5, copies of Bascovsky’s pay records for weekly pay periods covering
June 15–August 30, 2008. Bascovsky’s final check covered 36 hours at $13 per hour. He
normally worked a standard 40-hour week. I would conclude that he was not paid for 6 hours
on the day he was terminated, a total of $78 gross.
36 See R. Exh., the Respondent’s “handbook.”
37 See stipulation (of the parties), GC Exh. 2, which includes copies of certified payroll
records for the West Allegheny job from June 20 through August 2, 2008.
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Respondent’s small business operation. Being mindful of the Board’s admonition to judges
regarding an employer’s business decisions, I do not find it unreasonable for Mark to opt to
release an employee who, without notice, announces his intention to quit, and in this case to
work for a possible competitor—the Union. To be sure, given the Union’s extensive and
persistent recruitment efforts, in agreement with the Respondent, I believe that the
Respondent’s concerns about keeping Bascovsky on board were legitimate and honestly
invoked. For instance, Bascovsky, if retained after announcing his intention to work for the
Union, could have told the other West Allegheny employee (Cook) of the wages he was going to
make with the Union, which could have affected Cook’s morale and perhaps enticed him to
leave the Respondent for the greener pastures of union employment. The Respondent could
have lost two of the three-man work force at West Allegheny. Therefore, releasing Bascovsky
immediately under the circumstances in my view was a legitimate business decision.
Clearly, Mark Tinney was not pleased over Bascovsky’s decision to leave for the Union,
and that certainly played a substantial role in the decision to release him that Friday. It seems
equally clear on a practical level, however, that Mark would have been equally incensed over
any competing employer who came on his jobsite and lured one of his best workers away.
Also, as noted, Bascovsky was an at-will employee who, on August 29, exercised his
right to quit without notice or reason. The reciprocal of his right to quit, in my view, was the
Respondent’s right to release him immediately. Said another way, the General Counsel did not
establish any requirement (save the requirements of the Act) under the parties’ employment
relationship that would convey to Bascovsky a right to continued employment either until the
end of the business day on Friday, August 29, or any other date of his choosing under the facts
and circumstances of this case.38
Therefore, I would find and conclude that early in his shift on August 29, 2009,
Bascovsky announced to the Respondent that he was terminating his employment with it to go
to work for the Union in order to garner higher wages; that Bascovsky only intended to continue
working for the Respondent until the end of that business day and would be working for the
Union thereafter, starting Tuesday, September 2, 2008; that the Respondent, in part because of
animus against the Union, decided to terminate Bascovsky immediately and gave him his final
check covering all but 6 hours of that pay week; that irrespective of its animus toward the Union
and Bascovsky’s decision to work for the Union, the Respondent, consistent with its business
practices and his at-will employment status, would have taken the same action. I would find and
conclude that the Respondent met its defensive burden under Wright Line, and I would
recommend dismissal of this charge.
Turning to Ferris, I should note from the outset that I did not find him to be credible in
crucial areas of his testimony. In fact, in agreement with the Respondent, I believe his
testimony contained severe material falsehoods.
The essence of the Ferris charge is that he suffered termination and wrongfully so
because of his close relationship with Bascovsky; that essentially the Respondent took out on
him its ire over Bascovsky’s decision to quit and join the Union.
Ferris readily admitted that he left work early on August 28, but did so because of illness
and with the permission of Harry Tinney. It is also clear that upon his return to work on

38 In my view, those cases cited herein by the General Counsel, although involving
accelerated terminations, are factually inapposite to the instant case.
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August 29, he did not produce a doctor’s excuse or any other evidence to justify his early
departure on August 28. Notably, Ferris admitted that he had interviewed with Mark Tinney for
the job and had had been informed by him about the job he was applying for, the Respondent’s
operation and employee responsibilities; he also had received the Respondent’s handbook
which he claimed to have read and signed off on.39
Both the handbook and the warehouse personnel job description (R. Exh. 4) contain
provisions dealing with absences due to illness that employees are required to follow. The
handbook requires the employee, inter alia, to submit a “Time Off Request Form” upon his
return to work and the job description requires the employee to call his warehouse manager if
he is unable to come to work due to illness. There is no provision, however, for employees who
leave work due to illness. Nonetheless, between the two documents, it is clear that employees
are instructed to notify the Company through a supervisor and, in the case of warehouse
employees, his warehouse manager.
Ferris, as noted, never submitted a leave form either before or after he left work or upon
his return. However, he claimed to have notified Harry Tinney of his illness on August 28 and
need to leave and received Harry’s approval. First, Harry Tinney denied that he ever spoke to
Ferris on August 28 because he reports to work around 6:30 a.m. and does not customarily
return to the shop except on rare occasions at the end of the day, around 2:30–3 p.m.
Moreover, Harry testified that it is not within the purview of his job as a field supervisor to grant
warehouse employees’ leave requests. I believe that Harry Tinney testified truthfully. Clearly,
Harry’s job in August 2008 was to supervise the men in the field, that is the West Allegheny job.
It should be noted that Bascovsky could not say with any certainty that Harry left the job to go to
the shop at around the time Ferris punched out on August 28. I believe that Ferris did not tell
the truth about having sought and obtained Harry’s permission to leave work at 11:02 on
August 28.
I also do not believe that Ferris left work because of illness or that he saw a doctor who
prescribed medicine (an antibiotic) for his stomach problem. It is noteworthy to me that the
Ferris charge was filed on September 4, 2008. The trial took place on January 27, 2009.
However, during the trial, Ferris testified that he saw a physician (unnamed, but not his regular
doctor) through coverage under his mother’s health insurance policy (not produced at the
hearing) and received a prescription for medicine (not produced at the hearing). In short, Ferris
had plenty of time to gather this important corroborative and readily obtainable documentation.
Yet, he did not. I can only infer that he was not telling the truth regarding his early departure
from the job on August 28.
As to his discharge, Ferris testified that Mark Tinney told him cryptically to ask his
stepfather why he was being terminated, thereby implicitly tying his discharge to Bascovsky’s
decision to leave the Respondent and work for the Union. I would not credit Ferris’ testimony in
this regard; first, because he did not testify truthfully about the events of August 28, and
because I believe he was possibly coached by Bascovsky or someone to tell this tale.
I note that at the trial Bascovsky referred to Ferris as his stepson. First, Ferris was 23
years old and Bascovsky was 41 at the time and had only been married to Ferris’ mother since
August 21, about a week at the time of Ferris’ termination. In my view, this is unusual
nomenclature for two grown men to use with respect to each other, as I view things, and frankly

39 See R. Exh. 9, a copy of a notice and regulations acknowledgment and acceptance
signed by Ferris on August 27, 2008, and the Respondent’s handbook, R. Exh. 1.
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seems contrived. Moreover, I am not convinced that Mark Tinney ever knew that Bascovsky
had married Ferris’ mother by August 29. Of course, this kind of close family relationship would
tend to buttress the charge that Ferris was retaliated against because of the relationship.
Be that as it may, the record evidence does establish that Ferris and Bascovsky did
have a more than casual relationship—“friend”—and Mark Tinney to a certainty knew of this at
the time he hired Ferris. Therefore, I would find and conclude arguably, but only minimally, that
the General Counsel met her burden under Wright Line to establish a sufficient connection
between the Respondent’s animus toward Bascovsky’s decision to leave for the Union and its
decision to terminate Ferris.
However, I would find and conclude that the Respondent would have terminated Ferris
irrespective of his connection to a fellow employee’s unwelcome exercise of his statutory rights,
but not because he was a poor worker, but because he was absent without leave and failed to
comply with the Respondent’s work rules governing employee leave taking.40 I would -
recommend dismissal of this charge.
Conclusions of Law
1. The Respondent, Tinney Rebar Services, Inc., has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Iron Workers Local Union No. 3, has been a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(3) and (1) of the Act by accelerating the
discharge of John Bascovsky because of his decision to quit the employ of the Respondent to
join the Union.
4. The Respondent did not violate Section 8(a)(3) and (1) of the Act by retaliating against
Joshua Ferris because of his close relationship to John Bascovsky and his decision to quit the
employ of the Respondent to work for the Union.
5. The Respondent did not otherwise violate Section 8(3) and (1) of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended41

40 I have considered the Respondent’s claim that Ferris was also fired for being a poor
worker and would find and conclude that this defense is not sufficiently established. First, the
two employees who testified about Ferris’ poor work habits did not communicate their opinion to
management. Gulakowski may have heard rumors about Ferris but did not seem sure of the
matter. Mark Tinney, it seems, only got wind of this through Gulakowski. In short, I do not
believe the Respondent would have terminated Ferris, a new and untried employee, for his work
habits on August 29. In my view, this was a make-weight point, honestly considered by Tinney
along with its primary decision to terminate him for being absent without leave. Again, it must
be emphasized that Ferris’ dishonesty on the stand weighed heavily against him and in favor of
the Respondent.
41 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
Continued
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ORDER
The complaint is hereby dismissed.
Dated, Washington, D.C. May 6, 2009
____________________
Earl E. Shamwell Jr.
Administrative Law Judge
_________________________
waived for all purposes.