Colacino Industries, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 21, 2006

03-CA-025785 (N.L.R.B. Sep. 21, 2006)

JD–69–06
Newark, NY

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

COLACINO INDUSTRIES, INC.

and Case 3-CA-25785

INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, Local 840

Mary Elizabeth Mattimore, Esq.
Of Buffalo, New York
For the General Counsel.

Edward A. Trevvett, Esq. and
Sara E. Visingard, Esq.,
Of Pittsford, New York
For the Respondent.

DECISION

STATEMENT OF THE CASE

WALLACE H. NATIONS, Administrative Law Judge. This case was tried in Rochester,
New York, on July 12, 2006. The original charge was filed March 7, 2006, and an amended
charge was filed on May 24, 2006. Both were filed by International Brotherhood of Electrical
Workers, Local 840 (herein Union). The Complaint and Notice of Hearing issued on May 31,
2006.1 The Complaint alleges that Colacino Industries, Inc. (herein Respondent or Colacino)
violated Section 8(a)(1) and (3) of the National Labor Relations Act (herein Act). Respondent
filed a timely Answer wherein it admitted, inter alia, the jurisdictional allegations of the
Complaint.

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

Findings of Fact

I. Jurisdiction

The Respondent, a corporation, has been engaged as an electrical contractor doing
residential, commercial, and industrial construction. It maintains a place of business in Newark,
New York. The Respondent admits and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.

1 All dates are 2005 unless otherwise indicated.

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II. Alleged Unfair Labor Practices

A. Alleged Violations of the Act.

Respondent is a small electrical contractor owned and managed by James Colacino. It
employs about nine electricians and helpers who work on jobs in and around Newark, New
York. Respondent has never been unionized. It does not have an employee handbook nor does
it have a written solicitation policy. No verbal solicitation policy has been given to employees
generally and specifically, to employee David Zaborowski. A typical work day is from 7 a.m. to
3:30 p.m., though it is not uncommon for employees to work to 6 p.m. or 7 p.m. during the
Company’s busy season. Respondent has no restrictions on employees talking among
themselves during work hours, though Colacino would prefer they talk about the job at hand.
The employees communicate about business with personal cell phones and are given a flat $35
per month for cell phone usage by Colacino. He does not require submission of phone records
for this allowance.2

Respondent’s former employee at the center of this proceeding is electrician David
Zaborowski. As will be shown, during the summer of 2005, he engaged in some organizing work
for the Union among Respondent’s employees. The matter of Zaborowski’s efforts in this regard
came to a head in an employee meeting on September 9. It was Respondent’s regular practice
to hold an employee meeting at the beginning of each workday. At these meetings employees
were given their daily job assignments and any outstanding issues were discussed. The
Complaint alleges that Respondent violated the Act at such a meeting of Respondent’s
employees on the morning of September 9, by:

(a) James Colacino interrogating employees about their union activities and
sympathies.3

(b) James Colacino impliedly threatening employees with closing the facility.

(c) James Colacino terminating the employment of David Zaborowski.

B. Events Leading up to the Meeting of September 9.

1. The events of the summer of 2005

David Zaborowski worked for Colacino as an electrician from the spring of 2003 until his
termination on September 9, 2005. His normal work hours were 7 a.m. to 3 p.m., unless a job
went long or overtime was approved. At the time he was hired, he was a member of IBEW Local
86. Zaborowski was hired after several interviews with Colacino. During these interviews the
2 Colacino electrician Douglas Velte, called by Respondent, testified that he worked with
Zaborowski for a period of time when Zaborowski first became employed by Colacino. On their
drives together to and from work, they would freely talk about a variety of subjects, including
girls, sports, and parties. Velte is the immediate past Chief of the local fire department and he
testified that he would call the local fire department on his cell phone during the workday.
Colacino testified that this was an accepted practice.
3 The Complaint originally alleged only a single interrogation, but after evidence on the
subject was adduced, General Counsel moved to amend the Complaint to allege plural
interrogations. The motion to amend was granted.

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subject of unions came up and was discussed. Zaborowski came away from these discussions
with the opinion that Colacino would never be involved with a union. Prior to being hired by
Colacino, Zaborowski resigned his union membership. Zaborowski testified that during the
interview process and in later work reviews, Colacino had promised him a raise to a set hourly
wage Zaborowski desired. For whatever reason, Zaborowski was never given this raise and it
became an issue with him. Zaborowski testified that during his employment with Colacino, he
had never been given verbal or written discipline.4

Michael L. Davis is an organizer for the Union. He knew Zaborowski when Zaborowski
was a member of the Rochester, New York IBEW Local. As part of his duties as an organizer,
Davis contacted Zaborowski in May to attempt to interest Zaborowski in aiding in organizing
Respondent’s employees. In this meeting, Zaborowski indicated to Davis that he was not
interested at that time, but would keep an open mind. Davis indicated that Zaborowski believed
that he was to get a raise and if that happened, he would not be in contact again with Davis.

Following this May meeting, Davis telephoned Zaborowski two or three more times
during the summer of 2005. In turn, Zaborowski telephoned Davis twice. In August, Davis visited
a jobsite where Respondent’s employees were working. The first such meeting took place about
the middle of August at Finger Lakes Race Track where Colacino employees Doug Velte and
Lynn Smalt were working. Davis spoke to them briefly about the weather, the job and other
things. This meeting lasted about 5 minutes.5 Following this meeting, Davis prepared a letter to
six or seven of Respondent’s electricians and helpers, reading:

“Just thought you may want some of this information. It’s hard to convey
the benefits of representation in a brief face to face.

I have enclosed some information from off the internet. This information
comes from a fellow electrician who has worked both Union and Open Shop. His
views are similar to all of 840’s organized members.

If I can help or inform you in any way, please feel free to call me:
(telephone number omitted).

Remember always be Proud of the trade you have chosen.

Looking forward to any response positive or negative.

Thank you for your careful consideration.

P.S. Remember, I like most tradesman am a father and family provider.
My concerns are the same as yours. Let me help you meet you family’s future
needs.”

This letter was accompanied by a fact sheet about Union benefits and other information
about Union membership.
4 At some point in his employment with Colacino, Zaborowski failed a drug test. He was
given a subsequent test and passed. No discipline was given him for the failed drug test.
5 Davis testified that he stopped at the Racetrack because he had previously been the
Racetrack’s electrician and he had been asked to stop and discuss a problem with the track’s
current electrician. When he arrived, he saw Respondent’s truck at the site.

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Subsequent to Davis mailing this letter, Zaborowski telephoned Davis and then gave the
phone to his fellow Colacino employee, Dave Greco. Zaborowski had been talking about the
Union to Greco and Greco had shown interest. The phone call took place after 3:30 pm, the
normal end of Respondent’s workday. Davis and Greco talked at length and Greco indicated he
wanted to meet personally with Davis at a place where they would not be recognized.6

After Davis talked with Greco, he visited a Colacino jobsite on September 8. This site
was the Clifton Springs Hospital, and there Davis spoke again with Colacino employee Lynn
Smalt. Davis testified that he had learned that Respondent was working on this jobsite from his
International representative.

Zaborowski remembered being called by Davis in the early summer of 2005. They
discussed their past relationship. Later in the summer, Davis again called him and they agreed
to meet. They met at Parkers, a restaurant in Newark, NY. Following this meeting, Zaborowski
spoke about the Union to fellow employees Lynn Smalt and David Greco. He spoke to Smalt at
work while the two were walking to their vehicles to go to a job. This conversation lasted less
than 5 minutes. Zaborowski spoke with Greco on a number of occasions.7 According to
Zaborowski, Greco was very interested in the Union and wanted to meet with someone from the
Union.

Zaborowski testified that Davis’s visits to the Colacino jobsites and his letter to
employees were mentioned at one or two of the morning employee meetings. He testified that
Colacino asked if Davis had stopped at the jobsites and also asked if all employees had
received the letter sent by Davis.

As an offer of proof, General Counsel adduced the following testimony from Zaborowski.
On September 8, Zaborowski received a call from Greco. According to Zaborowski, Greco, in
an uncertain tone of voice, told him that Colacino knew that Zaborowski had put Greco in touch
with Davis by calling him and giving the phone to Greco. Greco told him that he had not told
Colacino and he suspected that Lynn Smalt had told Colacino. Greco said that Colacino had
also told him that he could not handle the pressure and someone he knew that had gone
through this (union organizing) had closed their doors. Colacino further stated that he was
thinking seriously about closing his doors. Greco added that he did not know if Colacino was
going to fire Zaborowski, but that Colacino said that it (Zaborowski’s organizing) was the worst
thing that had happened to him since his daughter was injured. Having reviewed the entire
record, I accept this testimony. It is entirely consistent with admissions made at various places
in Colacino’s testimony. Greco was subpoenaed to testify by General Counsel, but he failed to
honor the subpoena and appear at the hearing.

6 Davis at this point, after timely objection by Respondent, gave hearsay testimony that
Greco did not want to meet at the Union hall because he was afraid for his job. I allowed this
testimony subject to Greco confirming it. Greco did not testify.
7 According to Zaborowski, both Smalt and Greco were looking for other employment at the
time.

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C. The employee meeting of September 9.

1. Zaborowski’s version of the meeting

At the employee meeting held at 7 a.m. on September 9, present were Owner James
Colacino, his secretary Vickie Bliss, Zaborowski, Colacino’s father, David Colacino, Doug Velte,
Lynn Smalt, Dave Greco, Gary Brandish, Shawn McCormick, and two other employees, one
named Scott and the other Ariel. They met in Colacino’s office, which is approximately 12 feet
by 15 feet in size. Colacino had a desk in the office and sat behind it and Zaborowski sat across
from him. Most of the other attendees were standing. About 3 feet of desk separated
Zaborowski and Colacino.

Zaborowski testified that most of these morning meetings began with small talk about
current events or what the employees had done the night before; then the talk turned to issues
or job assignments. Zaborowski testified that Colacino usually kept the atmosphere of the
meeting “nice.” According to Zaborowski, on the 9th, the meeting began by Colacino stating,
“I’ve done a lot of thinking, I’ve got something on my mind and my chest that’s taking me a lot of
time to think about. And I have to get it out in the open. As you guys know, I don’t handle stress
the same way as my father. It’s been very hard.” According to Zaborowski, Colacino then
related the story of his relative going out of business because of the Union and told the
employees that he was not sure if he wanted to keep going, if his business was going to be
taken out from under him because he takes pride in the family business. Colacino told them that
the pressure and stress of the union organizing was the worst thing that happened to him since
his daughter was injured.

To this point, Colacino had been looking around the room, engaging all the employees
there, but always returning to Zaborowski. According to Zaborowski, at this point, Colacino’s
voice became stressed and said, “I know there’s somebody in here right now that’s been trying
to get my guys to organize.” Colacino, who had been leaning back in his chair, sat up and
pointed his finger at Zaborowski and said, “ I want to know right now are you the one that’s been
using your cell phone to call the Union and hand it to another one of my employees?”
Zaborowski did not answer right way and Colacino asked the question again, and then again.8
Zaborowski then stood up to the side of his chair and responded, “This is fucking bullshit, I know
my rights. I can talk about the Union to anybody. And whether you know it or not, right now
there’s two guys in your office that have been looking for jobs and have been talking to me
about the Union. And all I’m trying to do is show them that there’s opportunities there. And just
guide them that they can better their careers and - - for themselves and their families. Provide
them with information is all.” Zaborowski testified that his voice became raised as he answered
Colacino’s question. Zaborowski also remembered that Colacino asked him if he had been
giving Davis information about Colacino’s jobsites or any other information. Zaborowski denied
8 A written sworn statement of Vickie Bliss was submitted by Respondent in the
Zaborowski’s unemployment compensation case. Bliss is a company secretary and was present
at the meeting. Inter alia, the statement reads, “Jim asked him again and he still would not
answer the question, got very defensive and started raising his voice. Jim told him not to raise
his voice to him, just answer the question asked.” A statement submitted by Colacino’s father,
who was present, indicates that Colacino told Zaborowski six times not to raise his voice and
answer the question. Respondent’s position statement in this case indicates that Colacino told
Zaborowski that he was going to give him one more chance to sit down, calm down and answer
the question.

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doing this, saying it was an organizer’s job to find out this information. He added that organizers
do not need him for this task.

Zaborowski testified that he then told Colacino that he had given him the benefit of the
doubt, that he could have gone to the Union the first time Davis called him, but instead gave
Colacino the benefit of the doubt about the raise that he had promised in his job interview.9
Zaborowski said that “nobody has left you yet. Your employees haven’t left you, I haven’t left
you. I’ve given – I’ve stood up for you actually to give you a chance. I told Mr. Davis that myself.
I want to give the respect that you gave me in hiring me. I stood right there in your office with
you sitting at the desk, pounding the desk saying, I’m a man of my word, Mr. Zaborowski, I’m a
man of my word.” At this point, Zaborowski testified that he mimicked Colacino and pounded the
desk. Colacino stood up and starting coming around his desk. Colacino’s father intervened and
said that this is enough, just calm down. Zaborowski had finished talking and Colacino stopped
and told Bliss to prepare Zaborowski’s last check, saying “I can’t take this no more. Today’s his
last day.”

Zaborowski then went outside and got his personal belongings from the company truck.
He then returned to the office and with an open hand, slammed the truck keys on the corner of
Colacino’s desk, saying “here’s your keys.” He then asked Bliss for his last cell phone check
with his last payroll check. Zaborowski testified that Bliss was apologetic and said she would
not be able to have his check ready until later in the day. Zaborowski returned either in the late
morning or early afternoon and got both checks without incident.

Douglas Velte has been employed as an electrician by Colacino for 4-1/2 years. He is
also a personal friend of James Colacino and they socialize outside of work. Velte testified
about the meeting of September 9. He believed that the meeting started with assignments being
given out. Then Colacino said he had something he had to bring up. Colacino started asking the
employees if somebody had been talking about going to work for somebody else, or passing a
cell phone off and talking to a union representative during company hours. According to Velte,
Colacino just went around the room and wanted to know if anybody was talking with a union
representative on company time. Velte testified that Colacino pointed at each employee and
asked if they were the ones talking to the Union representative. No one answered. Velte
testified that everybody knew who it was and that is when voices started being raised. Colacino
asked Zaborowski if he was the one passing off the cell phone. He also asked Zaborowski if he
knew how the Union got to the company jobsites. According to Velte, Zaborowski stood up,
raised his voice and said, “That was Mike Davis’s job.” Colacino told Zaborowski to sit down and
calm down, that he was just trying to talk with him. According to Velte, the arguing and voices
kept getting louder. Colacino kept telling him to calm down. Velte said then it looked to him like
Zaborowski was starting to lunge towards Colacino. However, Zaborowski did not lunge and the
two men continued to exchange words back and forth. In an affidavit given prior to his
testimony, Velte mentioned nothing about “lunging” and swore that Zaborowski merely leaned
on the desk. The conversation ended when Zaborowski would not sit down and was fired.

Zaborowski denied raising his hand toward Colacino as if to strike him, denied leaning
across the desk toward Colacino, and denied pointing his finger at Colacino. Zaborowski
testified that both his voice and Colacino’s voice were raised during the exchange of words.
Zaborowski also testified that he did not sit down when told to do so by Colacino because “I felt
9 Zaborowski testified that in the job interviews and subsequent job reviews, Colacino had
promised him a raise after a certain period of time. According to Zaborowski, Colacino reneged
on this promise.

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On the subject of Zaborowski’s organizing efforts, Colacino testified: “I didn’t necessarily
want to believe that he (Zaborowski) would be trying to organize my guys after the long period
of time he went without work. However, yeah I would say - - to answer your question the guys
had mentioned to me prior to that that Dave (Zaborowski) had been talking of the Union, about
his experience in the Union, and some of the benefits of being in the Union and the potential - -
the earning potential in the Union. But it seemed like it was getting - - how can I word this? I
didn’t realize that - - just how strong David was pushing the Union until September 7th or 8th.
Whenever it was at Clifton Hospital (a jobsite visited by Davis). And I was concerned that he
humiliated. I felt like I had enough of being interrogated. And I didn’t want to have him point his
finger at me again and solo me out in front of all of the other employees. I felt embarrassed. And
I was upset, yes. I knew my rights.”

2. Colacino’s version of this meeting

James Colacino gave sworn testimony about this meeting and the events leading up to
meeting three times. The first was in a New York State Unemployment Compensation hearing
following Zaborowski’s discharge. The next time was in response to questions by General
Counsel who called Colacino as an adverse witness as part of her case in chief. The last time
was when Colacino’s counsel called him for direct testimony as part of Respondent’s case. I
note this as Colacino’s testimony varies on significant points depending on the forum or which
attorney was examining him. In my opinion, these variations are important in determining
Colacino’s credibility and the motivation underlying Zaborowski’s termination, and whether the
alleged Section 8(a)(1) violations occurred.

In the instant proceeding, in response to General Counsel’s questions, Colacino testified
that he discharged Zaborowski for “insubordination” that occurred at the meeting on September
9. It was Colacino’s testimony that, absent the manner in which Zaborowski conducted himself
at that meeting, Zaborowski would not have been discharged. Colacino testified that on the
morning of September 9, he was aware that the Union was trying to organize his employees.
Upon questioning by General Counsel, Colacino admitted feeling pressure and stress because
of the Union organizing effort. He testified, however, that this was an ongoing pressure because
of efforts by the Union and his customers to either organize his work force or hire it away from
him. For about 2 months before the meeting, he had had conversations with employees wherein
the subject of the Union had been discussed. He had learned from his employees that Davis
had visited two job sites and had spoken with employees. The employees who told him this
were Smalt, Velte, and Greco. He said the employees made these disclosures when he spot-
checked his jobsites and was told that he just missed seeing Davis. He believes his employees
volunteered the information to him. Colacino testified that he did not mind Davis’s visits except
for the interruption of work they caused.

During examination by his counsel, Colacino testified that he did not believe Davis could
have visited his Phelps Fire Station jobsite unless he had been told of its existence by one of
Colacino’s employees. When he asked the employees on the Clifton Springs Hospital jobsite
about Davis’s visit, they told him that Zaborowski had identified the jobsite to Davis and that
Zaborowski was trying to get them to sign or to join the Union. Colacino quoted Smalt as saying,
on September 7 or 8, “He’s (Zaborowski) been driving us nuts. Every day, he wants to talk. He’s
telling us about the Union, wants us to call Mike Davis, give us the phone numbers. He even
went so far as to dial the phone for Greco.” Colacino then testified that Greco came in later that
day and told Colacino the story about the phone call. Colacino believes Greco was urged to
make this admission by Smalt. Colacino also testified that in this conversation, Greco told him
that he did not want to join the Union, but Zaborowski would not leave him alone on the subject.

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was spending company time trying to organize my guys. I would hope that company time would
be spent on company - - something that’s conducive to the benefit of my company, not the
detriment of my company.”

According to Colacino, about a month before September 9, employee Smalt showed
Colacino the fact sheet sent by Davis to Colacino’s employees. Though Colacino on more than
one occasion denied ever seeing the cover letter accompanying the fact sheet, he testified that
when Smalt brought him the packet, he told him about the letter. Then he testified that Smalt
“brought the letter in to me in the morning and showed me that he had gotten in the mail.
Colacino later again denied seeing the letter before the instant hearing. Colacino also had a
conversation with employee David Greco who told Colacino that Zaborowski was attempting to
have the employees speak with Davis and join the Union. According to Colacino, Greco, on
September 8, told him that Zaborowski would not leave the employees alone. Greco told him
that on one occasion, while driving to or from a job, Zaborowski had called Davis and then
handed the phone to Greco so he could speak with him. According to Colacino, Greco also
indicated to him that he was not interested in the Union at that time. Colacino testified that he
asked Greco why Zaborowski was attempting to organize the employees.

Colacino testified that he had a conversation with some of his employees wherein he
related that a relative of his in the electrical contracting business just shut the business down
permanently during a union organizing campaign. He also related that another contractor that
had been successful as a nonunion contractor for 50 or 60 years, gave in and signed with the
union after a number of lawsuits. According to Colacino, the business then failed within 24
months. Colacino also related that it was the union’s inflexibility that caused the business to fail
and put the employees out of work.

Colacino offered the following testimony about the meeting of September 9 in response
to questions by General Counsel. He testified that he began the meeting by giving out job
assignments. He then asked the employees in the room “is there anybody here that’s trying to
find other employment for their co-workers on my time?” He knew when he asked the question
that Zaborowski had “spearheaded some of the (union) conversations with Mike Davis and my
other employees.” Colacino then asked Zaborowski whether he was trying to “find other
employment opportunities for my employees on my time.”10 Colacino testified that this
statement was a euphemism for organizing for the Union. Colacino then asked Zaborowski
whether he had used his cell phone to put the Union in touch with his employees on his time. He
also asked Zaborowski whether he had tried to organize his employees on company time.
Colacino offered sworn testimony in a New York State Unemployment compensation
proceeding. In that forum, Colacino swore that at this point in the meeting, Zaborowski became
very defensive. In the instant proceeding, Colacino characterized Zaborowski as becoming very
offensive. Colacino continued to question Zaborowski in an attempt to get to “the bottom of the
issue.” During this phase of the meeting, Colacino testified that he repeatedly asked
Zaborowski to lower his voice and talk to him. At one point in his testimony, Colacino stated that
in response to his questions, Zaborowski slammed his fist on Colacino’s desk and answered,
“That’s fucking bullshit. That’s his job. He’s an organizer. You know that.” Colacino testified that
Zaborowski pointed to other employees and said, “Don’t be blaming me, ask them.” Colacino
assumed that Zaborowski was trying to make the point that other employees were involved in
the organizing effort. Colacino also testified that by answering in the fashion he did, Zaborowski
was defending himself from Colacino’s questioning about why Zaborowski was trying to
10 At another point in his testimony, Colacino testified that he asked this question first to the
entire assembled group of employees.

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Colacino testified that at this point, Zaborowski was looking around at the other
employees trying to get them to intercede and take some of the heat off of him. Then Colacino
asked Zaborowski, “David, I’m asking you a question. Are you the guy that’s taking the cell
phone and dialing the number for the organizer, for Mike Davis, and handing it to my employees
on my time as you’re driving down the road in my van?” Colacino testified that at this point
Zaborowski was very irate and rose from his chair. Colacino then said, “David, I’m trying to talk
to you. I’m not going to tell you again, I want to have a conversation. I want to get to the bottom
of this. I want to find out what’s going on. Why are you guys not happy here?” Colacino then
testified that he could not get Zaborowski to calm down, though he asked him to calm down four
or five times.
organize the employees on Colacino’s time. Colacino admitted his employees are allowed to
talk about any subject during worktime, so long as the employees remain productive. They are
allowed to use their cell phones to make nonwork-related calls, so long as it does not interfere
with their work. Colacino, in my opinion, failed to demonstrate why Zaborowski's calling Davis
while driving to or from a jobsite, and then handing the phone to Greco in any way interfered
with his work.

Colacino admitted that it was possible that he said to one or more employees that the
Union organizing effort was the worst thing that had happened to him since a personal tragedy
that his family suffered. He also told the employees at the September 9 meeting that he would
not idly stand by and have his business stripped of talented employees and customers.

In this proceeding, Colacino testified that he felt physically threatened by Zaborowski in
the employee meeting and believed that Zaborowski might try to hit him. In sworn testimony in
the unemployment proceeding, Colacino stated that “David (Zaborowski), you know, didn’t do
anything that I would consider threatening, but he was very upset and the language and
professionalism just wasn’t there.” Colacino testified that the language and the lack of
professionalism were part of the reason for firing Zaborowski.

In testimony adduced by his attorney, Colacino testified that the meeting began with the
passing out of job assignments. Then he told the employees that he had some issues that he
wanted to talk about, some things that concerned him. He asked if any of his employees were
actively pursuing other employment opportunities for their co-workers and his employees on his
time. Colacino testified that when he asked that question he was looking around the room at all
the employees. He testified that Zaborowski seemed agitated and upset at the question, banged
his fist on the table, and said, “That’s fucking bullshit!” According to Colacino, Zaborowski “had
turned toward Dave Greco and Lynn Smalt and in substance tried to insinuate that they too
were part of this organizing effort. And that they had some interest in leaving. So it wasn’t just
Dave Zaborowski. I think that’s what his intention was. And, you know, he did make a comment
that I’m not going to bring other names into it, but there’s other people in this room. And he
specifically looked at David and Lynn. . . That they were interested in leaving, but they just didn’t
have the intestinal fortitude. He didn’t use those words, but ‘the balls’ to say anything.”

Colacino testified that his intent was to find the deficiency in the Company that would
cause his employees to want to leave their employment. He testified that the entire exchange
between him and Zaborowski lasted 5 to 7 minutes. Colacino testified that Zaborowski was very
upset and very angry during the exchange. With respect to Zaborowski’s demeanor, Colacino
testified that he said, “David, I’m talking to you. Please talk to me. Lower your voice. I’m talking
to you. I’m just asking you a question. Are you trying to find other employment opportunities for
my employees?”

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Colacino testified that on prior occasions he had had heated conversations with
Zaborowski. He remembered one occasion when Zaborowski was inquiring what he could do to
get a raise. Colacino testified that he told Zaborowski of a concern of Colacino, Zaborowski got
defensive and said, “That’s bullshit. Who told you that? I’ll freaking . . . I’m going to get to the
bottom of this.” According to Colacino, Zaborowski was upset at who told Colacino about the
alleged problem rather than with the problem. He testified that his goal was to help Zaborowski’s
earning potential. When asked by his counsel what was the difference between this occasion,
where no discipline was issued, and September 9, when Zaborowski was fired, Colacino
testified:

“Well first of all it’s not my goal to reduce my employees, but rather grow my company.
So certainly I would not want to reduce my staff, especially at that point in time. My goal is to try
and work through problems. Problems are inevitable. And in the past, in the 39 years I have
been around this business, we’ve always tried to work with our employees and counsel them,
and try and make them better educated on our business. One how we can make it a better
business. So the goal isn’t to - - if I fired every - - fired someone every time I had a problem with
them I’d have absolutely no employees. So in the past when I talked to David it was he asked a
question; what can I do to make more money? I tried to talk to him about it. David, not unlike
other people, sometimes has a hot temper. He has a very short fuse. But I never had felt
threatened by David. On September 9th, he was so upset and so irate and the way he was
addressing me that I actually felt threatened. I thought that a physical confrontation was very
possible. And it’s probably the straw that broke the camel’s back that day in that I simply can’t
run a business where I feel threatened by my employees.11 And I certainly can’t be in a position
when I can’t talk to them about a concern. This case being the concern I brought up that
morning is - - and what I wanted to get to. I never got to this point because I wasn’t allowed the
chance to ask it. But if the Union has benefits that are superior to what I can offer, why are you
not working there? And what do I need to do - - what do I need to improve to make my place
more [attractive]. I never got to ask that question. My goal that morning was to address the
situation, talk to David. He - - optimally what would have happened is David could have sat
down with me and said look it, I need to make more money. Am I going to be able to make more
money here? And I could say when you accomplish these tasks, yes. But in the meantime, I
don’t think its fair to me to, behind the scenes, try and strip me of my talented employees. The
reason is my business has zero value. I spent a lot of time and a lot of effort training my
employees. The Union in the past has - - I’ve had organizers talk to my men for the 35 years
I’ve been around this business - - 39 years. It’s never been a problem for me. I just always hope
that my operation - - my guys enjoy working there, and that they’ll weigh out the pros and cons
of them. “

Colacino then testified about the threat posed by Zaborowski. He testified that “I do not
recall ever coming around the desk. I remember when David stood up and started to get - - he
was very aggressive in his conversation with me and I stood up too, because, you know, only a
fool would sit there and - - you know, I actually thought that David was going to take a swing at
me, I really did. I mean he was very upset. And he was upset from the opening question that I
had. It didn’t really build up to it. It was just like and off on switch.” He soon thereafter testified
11 As an apparent afterthought for this hearing as it never surfaced before, Colacino pointed
out some issues which he says contributed to the discharge. He alleged that Zaborowski “cat
called” women from the company van, had a very short fuse with other contractors on jobsites,
was confrontational with customers, had difficulties with co-workers, and would not take
criticism. No proof of any of these alleged issues was given and I do not believe they played any
role whatsoever in Zaborowski’s discharge.

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that “I can’t have a hostile situation there where I feel threatened - - physically threatened. And it
was never my intention to eliminate an employee that day.” Colacino did not call the police this
day or find it necessary to have Zaborowski escorted off the company premises.

Colacino, when asked by his counsel, clearly seeking a straightforward denial, whether
he had threatened employees with closing the facility at the September 9 meeting, answered,
“Not in the context you are saying it.” Colacino then stated “that there are many days, many
times I’ve thought about closing my business.” When asked whether he had voiced that
sentiment to employees, he answered, “Probably.” He then qualified his answer saying it would
not have been a threat, and that many reasons other than union organizing would have caused
him to say that.12

In the meeting, Colacino told the employees that he was under a lot of stress in his
business, caused by, inter alia, the Union organizing.13 Going into the meeting, Colacino was
determined to address and find the reasons why employees would want to leave his
organization. As there was no showing that any other reason for leaving was discussed, one
must conclude he was seeking to learn why his employees would want to join the Union.
Colacino also testified that he told the employees that he was not going to let someone destroy
the business he had worked hard for. He then testified that it was a concern to him why
Zaborowski was trying organize a union. Colacino deemed personally hurtful that an employee
would want to leave. He considered Zaborowski’s organizing efforts to be a “manageable
problem.”

Having carefully considered the evidence adduced through Zaborowski, Velte, and
Colacino, I credit the testimony of Zaborowski wherever it conflicts with that offered by the other
two men. Both Velte and Colacino offered testimony adverse to Zaborowski that conflicts with
other sworn testimony given by them. In Velte’s case, there was a conflict between his
testimony in the instant case and in his affidavit. In Colacino’s case there are conflicts in his
testimony herein and in the sworn testimony given in the unemployment case. Moreover, there
are numerous internal conflicts in the testimony given by Colacino in the instant proceeding. At
one point or another, Colacino virtually admits what Zaborowski testified he said.

In sworn testimony in evidence, Colacino characterizes Zaborowski’s manner in the
September 9 meeting as defensive and then as offensive. He swore in the unemployment
hearing that he never felt threatened and then in this hearing, he testified that he did feel
threatened and feared that Zaborowski would hit him. I believe that the truth lies in Zaborowski’s
testimony and that Colacino and Velte have stretched the truth or avoided it altogether to bolster
Respondent’s case.

D. Discussion and Conclusions.

1. Was Colacino’s implied threat to close the business unlawful?

As the Supreme Court concluded in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
[a]n employer is free to communicate to his employees any of his general views about unionism
or any of his specific views about a particular union, so long as the communications do not
12 Colacino testified that subsequent to Zaborowski’s termination, he had employed two
Union electricians on a job without incident and would hire them again.
13 Velte testified that in the meeting Colacino never impliedly threatened employees with
closing his business.

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Colacino admits he probably made that threat to employees on the same day he talked
about his uncle, probably on September 9, and probably more than once. There is no possible
purpose for him to tell those stories, other than to send the clear message to employees that if
they organized, he would, or could, close. These stories and statements were more than
general references to possibilities. They were detailed with names and consequences, but not
based on the required demonstrable underlying premise. The overall effect of Colacino’s
statements that “he would not stand idly by and let someone destroy his business” taken
together with his stories about the unsubstantiated adversity experience by friends and
contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to
the precise effects he believes unionization will have on his company. In such a case, however,
the prediction must be carefully phrased on the basis of objective fact to convey an employer’s
belief as to the demonstrably probable consequences beyond his control. If there is any
implication that an employer may or may not take action solely on his own initiative for reasons
unrelated to economic necessity and known only to him, the statement is no longer a
reasonable prediction based on facts but a threat of retaliation based on misrepresentation and
coercion. “[C]onveyance of the employer’s belief, even though sincere, that unionization will or
may result in the closing of the plant is not a statement of fact unless, which is most improbable,
the eventuality of closing is capable of proof . . .” [A]n employer is free only to tell “what he
reasonably believes will be the likely economic consequences of unionization that are outside
his control,” and not “threats of economic reprisal to be taken solely on his own volition.” NLRB
v. Gissel Packing Co., supra at 618-619.

Applying these standards, it is clear that Colacino overstepped the bounds of
permissible speech and threatened employees with reprisals at the September 9 meeting and
on other occasions during that time period. On direct examination, Respondent’s counsel read
verbatim the Complaint allegation on this point, and asked Colacino if he ever “impliedly
threatened employees with closing the facility.” Colacino replied “not in the context in which
you’re saying it, no.” Such a evasive answer conflicts with Colacino’s admission in other
testimony that he sent the message to employees more than once that if they unionized, he
could, or would, close his business.

Zaborowski testified that at the September 9 meeting, as Colacino began to talk to the
assembled employees, he described the pressure and stress he felt about the Union. He told
employees he wasn’t sure he wanted to stay in business if his business was going to be taken
out from under him because of the pride he had in the family business. Thus, Colacino more
than just implied that he could close the business, which is unlawful, but plainly told employees,
he may or may not take such action solely on his own initiative for reasons known only to him
and unrelated to economic necessity. The statement is a clear threat. Colacino connected the
stress from the union to his uncle, who had a similar experience with the union. Colacino admits
telling employees two stories about unions. One story described his uncle’s experience as
follows: “Similarly my uncle was pressured into – he found that his employees were organizing –
trying to organize each other into a union. He had made a decision that he, at the stage of his
life he was in, didn’t want the additional pressures and the inflexibility that will come long with it.
So he had opted that if they formed a union that he would probably retire and close the
business.” Colacino also told a story about an electrical contractor who was successfully in
business for 50-60 years. Colacino told employees that the contractor was pressured by
continual lawsuits from the union into signing, and then went out of business. He told employees
the inflexibility of the union is what put that contractor out of business. The stories were clearly a
scare tactic, not based on demonstrable fact. Colacino admits telling employees that “I won’t sit
idly by and let someone destroy my business.”

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Colacino’s overall approach was intentionally intimidating. He turned his chair to directly
face Zaborowski, leaned forward toward Zaborowski, pointed his finger at him, and demanded
to know, “right now”, if he was the one passing your cell phone to employees to talk to the
Union. Zaborowski did not reply at first. Colacino did not relent, demanding again and again that
Zaborowski answer his question. “I want to know right now are you the one using your cell
relatives, whose businesses were unionized, would cause employees reasonably to equate
unionizing with closing, in violation of Section 8(a)(1) of the Act. Iplli, Inc., 321 NLRB 463 (1996).

2. Was Colacino’s interrogation of Zaborowski unlawful?

In determining whether a supervisor’s questions to an employee constitutes an unlawful
interrogation, the Board examines whether under all the circumstances, the questioning tends to
interfere with, restrain, or coerce employees in the exercise of Section 7 rights. Rossmore
House, 269 NLRB 1176 (1984). In making this assessment, the Board reviews various factors,
including whether the employee is an open union supporter, the employer’s background
(whether there is a history of employer hostility and discrimination), the nature of the information
sought (whether the interrogator appeared to be seeking information on which to base action
against individual employees), the identity of the questioner, the place and method of the
interrogation, and the truthfulness of the reply. Heartshare Human Services of New York, 339
NLRB 842 (2003). Applying these factors to Colacino’s questioning on September 9 establishes
that Colacino questioned Zaborowski in violation of Section 8(a)(1) of the Act. First and
foremost, the interrogator, Colacino, is president and sole owner of the Company. His admitted
motive in questioning Zaborowski on September 9 was to “get to the bottom” of the union
organizing. He testified in the unemployment hearing:

“I had had some complaints from other employees that David was trying to find other
employment opportunities – specifically trying to organize my employees into the local union out
of Geneva. What had happened was I was questioned David about it in our morning meeting
and when questioned he flew off the handle and got very defensive. We tried to have a
conversation with him so we could get to the bottom of you know was he trying to find other
employment opportunities for my guys.”

While Colacino knew Zaborowski was in the Union when he sought employment at the
Company, and that he kept in contact with the Union, Zaborowski, after discussing the matter
with Colacino, resigned his membership with the Union before he started working at the
Company. Colacino admits that while he knew Zaborowski kept ties with the Union, he “didn’t
realize just how strong David was pushing the Union” until September 7 or 8, a day or two
before he fired him. At the September 9 meeting, Colacino sought information about
Zaborowski’s union organizing activities, and his manner, tone, and the tenor of the questioning
was coercive. Before he began interrogating Zaborowski, Colacino told employees he was
under stress from the Union, and that he wasn’t sure if he wanted to stay in business if his
business was going to be taken out from under him. He also told employees that it was the
worst thing that had happened to him since his daughter was injured. Although he knew that it
was Zaborowski who made the cell phone call to the union organizer, Colacino nonetheless
made a showing of going around the room, and asking employees if they were the ones talking
to the Union representative. During this questioning of employees, he stared at Zaborowski and
said, “I know there is somebody in here right now that’s been trying to get my guys to organize.”
See Sea Breeze Health Care Center, Inc., 331 NLRB 1131, 1131-1132 (2000) (manager called
an employee meeting and asked employees if they knew anything about union trying to get in;
in finding violation, the Board found “the group dynamic of the questioning only heightened the
likely coerciveness of the questioning”).

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Colacino admits that at the September 9 meeting, he looked around the room and asked
if anybody in his presence was pursuing other employment opportunities for co-workers and
employees on my time. Employee Velte testified that at the meeting, Colacino surveyed the
room of assembled employees and asked if anybody was talking to a union representative on
company time. Velte testified that Colacino went around the room, and pointed toward each
employee, asking if they were the ones talking to the Union representative. According to Velte,
the room was silent; no one responded to Colacino’s questioning. The employees remained
silent as they knew who Colacino was referring to. LaGloria Oil and Gas Co., 337 NLRB 1120
(2000) (silence is indicative of coerciveness). Colacino directly interrogated Zaborowski.
Colacino’s questions were not confined to overt union supporters. Even if it is true that certain
employees may have been openly antiunion, the room was filled with all of the company
employees, and there is no evidence as to which, if any, were for or against unionizing.
Colacino questioned the captive employees, who were intimidated into silence, knowing that
phone to call the union and hand it to one of my employees?” It is particularly telling that
Colacino interrogated each assembled employee individually before targeting Zaborowski, when
he admittedly knew going into the meeting that it was Zaborowski who had made the cell phone
call. Colacino’s only conceivable purpose in interrogating everyone at the meeting, then
focusing individually on Zaborowski, was to heighten the employees’ anxiety and to send a
message to them of his disapproval of union organizing. He would have reasonably foreseen
the chilling effect such a meeting would have on his employees. Employee witness Velte
testified that the room fell silent as Colacino asked each employee if somebody has been talking
about going to work for somebody else or passing a cell phone off and talking to a Union
representative.

It is well recognized that an employee’s failure to respond to an employer’s questions,
indicates that an employee felt coerced. Waste Management de Puerto Rico, 339 NLRB 262
(2003); Sea Breeze Heath Care Center, 331 NLRB 1131 (2000); LaGloria Oil and Gas, 337
NLRB 1120, 1122-1123( 2000); Medicare Associates, 330 NLRB 935, 941 (2000). The manner
of interrogation inspired fear and intimidation among employees, as indicated by the silence of
the employees. Zaborowski also testified during the interrogation that: “I felt humiliated. I felt
like I had enough of being interrogated. And I didn’t want to have him point his finger at me
again and solo me out in front of all of the other employees. I felt embarrassed. And I was upset,
yes. I knew my rights.” There is no question but that the interrogation was unlawfully coercive.

For all intents and purposes, Colacino admits that his purpose for the questioning was
unlawful. He conceded that he wanted to question Zaborowski, who in his words “spearheaded”
the organizing, to get to the bottom of it. Colacino admits that during the meeting he told
employees he would not stand idly by and let his business be destroyed, and that his voice was
raised. Colacino leaned forward toward Zaborowski and pointed his finger at him. Colacino
testified that as he questioned Zaborowski, he would not answer the question directly and kept
turning toward the other employees to say something so “it’s take a little bit of the heat off
David.” Colacino persisted and warned Zaborowski: “I’m trying to talk to you. I’m not going to tell
you again I want to have a conversation, I want to get to the bottom of this.” Colacino testified, “I
asked him, ‘David, I’m asking you a question. Are you the guy that’s taking the cell phones and
dialing the number for the organizer, for Mike Davis, and handing it to my employees, on my
time, as you’re driving down the road in my van?’” Zaborowski was clearly the victim of a well-
planned, highly coercive interrogation on September 9 and under each and every Rossmore
House factor, Colacino violated Section 8(a)(1) of the Act.

3. Was Colacino’s interrogation of other employees at the September 9 meeting
unlawful?

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Respondent has totally failed to meet its burden of showing that it would have
discharged Zaborowski even if Zaborowski had not engaged in Union activities. That
Zaborowski became angry and cursed in the meeting does not justify his termination.
Zaborowski was goaded into anger by Colacino’s repeated and unlawful questions to him about
his union activity. Colacino knew from past confrontations with Zaborowski that Zaborowski
could be goaded into anger and could be provoked into an outburst. By Colacino’s own
admission, he and Zaborowski had had earlier heated arguments, with Zaborowski responding
much as he did on September 9, with no discipline resulting. The only difference between the
earlier confrontations and the one on September 9 is that the earlier ones did not involve any
Zaborowski was the target of the interrogation. All of the company employees witnessed the
interrogation and discharge of Zaborowski. Colacino admits that he knew going into the meeting
that it was Zaborowski who was contacting the Union. Nonetheless, he chose to interrogate
everyone, and Zaborowski individually, and to discharge Zaborowski in front of everyone,
undoubtedly to send a message to employees about the consequences of organizing. I find that
Colacino’s interrogation of the employees other than Zaborowski to be an independent violation
of Section 8(a)(1) of the Act.

4. Was Zaborowski’s discharge unlawful?

a. Was the discharge unlawful under a Wright Line analysis?

The Board traditionally determines whether a discharge is unlawful under the guidelines
set out in Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980). To establish a
violation under Wright Line, the General Counsel has the burden to prove that an employer’s
actions were the result of its animus toward union or protected activity. Once the General
Counsel has met this burden, the Board will find a violation unless the employer proves that it
would have taken the same action even in the absence of the protected activity.

General Counsel has clearly met her burden in this case. Colacino’s animus toward the
union is obvious. He admitted the union organizing effort contributed to his stress and admitted
that the organizing effort was the worst thing that happened to him since his daughter was
injured. He told the employees of other employers who had closed their business either
because they became unionized or because they would not become unionized. Colacino clearly
threatened his employees that he might well close his business if it became unionized. He
admitted telling employees that he would not stand idly by and have his business stripped of
talented employees. His actions in the meeting of September 9 showed that this animus was
directed at Zaborowski solely because of Zaborowski’s activities on behalf of the Union.
Zaborowski, inter alia, solicited employees Greco and Smalt on behalf of the Union and put
Greco in touch with Davis by calling Davis and handing the phone to Greco. Colacino learned of
these clearly protected Union activities within 2 days of the September 9 meeting. At the
meeting, he confronted Zaborowski by asking him if he had done these things, all the while
knowing that Zaborowski had done them. I believe it is clear that Colacino’s motivation in
terminating Zaborowski was his union animus and animus toward Zaborowski’s activity on
behalf of the Union, and nothing else. As noted above, Colacino admitted he would not stand
idly by and let his employees be taken by the Union. Given this mindset, I find that Colacino
went into the meeting of September 9 intending to discharge Zaborowski and send a message
to the other employees of the consequences of engaging in union activities. To stop the
organizing effort, he had no other option. He could not lawfully tell Zaborowski to cease his
organizing efforts. I believe and find that Colacino would have discharged Zaborowski on
September 9 even if Zaborowski had simply never answered Colacino’s unlawful questions.

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In Felix Industries, the Board, on remand from the District of Columbia Circuit Court,
faced the question of whether the third factor, the “nature of the outburst” (which had been
determined by the Circuit Court to be unprotected) outweighed the other three Atlantic Steel
factors that did not weigh in favor of loss of protection. The Board, in deciding whether the
nature of the outburst outweighed the other three factors, held that in order to evaluate the
nature of the outburst, it was required to look at the fourth factor, provocation, which provides
the context for the outburst. In that regard, the Board held: “We have determined that
substantial weight must be given to the circumstances that provoked [the discriminatee’s]
outburst.” Felix Industries, 339 NLRB at 196. The Board concluded that, although the nature of
Union activity by Zaborowski. Respondent had tolerated Zaborowski’s alleged “short fuse” and
profanity until he engaged in union activities. Profanity is not uncommon at employee morning
meetings and no one had been discipline for the use of profanity at such meetings until
Zaborowski said “f-----g bullshit” in defense of his protected conduct. Respondent routinely
allows employees to use their cell phones on company time for any reason, save and except for
union business. It had no rule against solicitation of any kind until Zaborowski solicited on behalf
of the Union. At the hearing, Respondent for the first time offered some unproven allegations of
misconduct by Zaborowski that allegedly played a part in the discharge. These allegations, even
if true and I question that, did not matter enough for Colacino to even counsel Zaborowski about
them. Such evidence demonstrates that Respondent has not shown it would have discharged
Zaborowski absent his Union activity. See, Sunbelt Mfg., 308 NLRB 780 (1992); Burle
Industries, 300 NLRB 498 (1990); Palagonia Bakery Co., Inc., 339 NLRB 515 (2003). The
record is clear that prior instances of profanity, heated discussions, and cell phone use were
never a problem before the onset of Zaborowski’s organizing activity. I believe the record fully
supports a finding that Zaborowski’s termination was unlawful under a Wright Line analysis.

b. Was the discharge unlawful under the Board’s holding in Atlantic Steel?

In addition to proving an unlawful discharge under a Wright Line analysis, General
Counsel asserts that the discharge is also unlawful under standards enunciated in Atlantic
Steel, 245 NLRB 814 (1979). Although under the circumstances of this case, given the
provocation of Zaborowski by Respondent’s unlawful interrogation, I do not believe that it is
necessary to analyze the case under Atlantic Steel, I will do so in an abundance of caution. I
agree with General Counsel’s thorough analysis and adopt her reasoning with modifications.

In Atlantic Steel, the Board set out four factors to consider in making a determination
whether an employee engaged in protected activity loses the protection of the Act by
opprobrious conduct. These factors are: (1) the place of the discussion; (2) the subject matter of
the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in
any way, provoked by an employer’s unfair labor practice. Atlantic Steel requires the Board to
“carefully balance” the above factors.

Applying the four-factored balancing test to this case establishes that Colacino
unlawfully discharged Zaborowski. Three of the factors – the place of the discussion, the subject
matter of the discussion, and the provocation of the outburst, weigh heavily in favor of the Act’s
protection. While the nature of Zaborowski’s outburst may not weigh in favor of protection, it
also does not weigh against the protection of the Act. The outburst, which was within the
acceptable parameters of Board law, and provoked by Respondent’s unfair labor practice, is, by
itself, insufficient to cost Zaborowski the protection of the Act, and overcome the other three
factors weighing heavily in favor of protection. Thus even if it is determined that Zaborowski’s
outburst crossed the line, which it did not, his discharge still violated the Act, by virtue of the
other three factors. Felix Industries, 339 NLRB 195, 197 (2003).

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the outburst weighed in favor of the employee losing the protection of the Act, it did not
outweigh the other three factors favoring the protections afforded to the employee under the
Act. See also, Stanford Hotel, 344 NLRB No. 69 (2005) (the factors of place, subject matter, and
provocation favor protection, while only the factor of the nature of the employee’s conduct does
not; Board found that the employee did not lose the protection of the Act by his conduct.)

1. The first factor – place of the discussion

Colacino provoked a confrontation with Zaborowski at the daily morning meeting before
the workday began. While the fact that the conduct took place in the presence of other
employees is an important element in determining whether conduct loses it protection,14it is
generally outweighed when, as here, the conduct is provoked by the employer. Palagonia
Bakery Co., Inc., supra at 533. The critical fact in the analysis of this factor is that it was
Colacino who chose the time, place, and manner for the confrontational questioning. This fact
was recognized in Noble Metal Processing, 346 NLRB No. 78 (March 31, 2006), where the
Board weighed the four Atlantic Steel factors in favor of the employee’s protection under the
Act. In Noble Metal, the Board found that the employer violated the Act when it disciplined an
employee for his behavior at a group meeting with employees, protesting certain employer
conduct. Member Batista found the first factor weighed in favor of protection even though the
conduct at issue occurred in the presence of employees. Member Batista observed that the
place of the discussion, an employee meeting, was an appropriate forum where employees
could be expected to express their views, and added:

“I note that in addition to the judge’s finding that Dowell’s conduct did not take
place in a work area and thus was not disruptive of the work process, his conduct
occurred at an employee meeting called by Respondent to announce impending
changes. . .[emphasis added]. 346 NLRB No. 78, slip op. at 2.

Similarly, here, while Zaborowski’s behavior occurred in the presence of other
employees, as noted above, Colacino chose the time, place and setting in which to confront
Zaborowski. It did not occur while employees were in their work area and it is not alleged to
have disrupted the work process. After the meeting ended, employees went about their daily
activities with no interruption.

In analyzing this first factor, where the focus is on the employee’s actions in front of
other employees, it is important to note that it was Colacino who turned the meeting into a
coercively disturbing experience for his employees. He unlawfully interrogated his employees
before singling out Zaborowski. In Palagonia Bakery Co., Inc., supra, the Board affirmed in full
the ALJ’s decision, applying the Atlantic Steel factors, that an employee’s outburst in the
presence of other employees, provoked by Respondent, was protected. The judge reasoned
that the employer caused its own problem as follows:

“It is significant in this respect, that it was Palagonia who started the confrontation on the
shop floor in the presence of other employees, Respondent can hardly complain about the
public nature of the discussion. Southwestern Bell, [694 F.2d 974, 978 (5th Cir. 1982)];
Brunswick Food & Drug, [284 NLRB 663, 665 (1987), enfd. mem. 859 F.2d 927 (11th Cir. 1988)]
(employer selected the setting for the confrontation, and thus is hardly in a position to object that
customers were drawn into it). 339 NLRB at 533 (bracketed inserts added).

14 Piper Realty Company, 313 NLRB 1289 (1994).

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The fact that an activity is protected and concerted does not necessarily mean that the
employee can engage in any type of activity. When an employee is discharged for conduct that
is part of the “res gestae” of protected concerted activities, the pertinent question is whether the
conduct is sufficiently egregious to remove it from the protection of the Act. Aluminum Company
of America, 338 NLRB 20 (2002). Here, Colacino’s interrogation provoked an outburst from
Zaborowski, and the two men engaged in an escalating argument, each raising their voices, and
each using profanity. Zaborowski admits that as Colacino interrogated him, he raised his voice,
Finally, where, as here, Zaborowski’s conduct in defending his right to talk to the Union
and other employees is protected concerted activity, the fact that the conduct occurred at a
group meeting is not a detriment to protection. The Board has consistently held that “employee
questions and comments concerning working conditions raised at a group meeting by an
employee clearly come within the definition of concerted activity under Board precedent.” Neff
Perkins, 315 NLRB 1229, n.1 (1994), citing United Enviro Systems, 301 NLRB 942 (1991) and
Whittaker Corp., 289 NLRB 933 (1988). See also, Cibao Meat Products, 338 NLRB 934 (2003)
(Board found that employee’s conduct at an employee meeting was protected concerted
activity, not insubordinate as argued by the employer.)

Colacino alone made the decision to “get to the bottom” of the Union activity at the
regular morning meeting in front of all the employees. There is no contention that Zaborowski
initiated the discussion at the meeting, or attempted to take over the meeting, or purposefully
tried to disrupt the meeting by seeking a confrontation with Colacino. Colacino chose to
interrogate Zaborowski, in front of the other employees, in an aggressive, attacking manner,
repeatedly demanding answers to his unlawful questions, with, I believe, the intent to send a
message to the other employees about the consequences of Union activity. Under the
circumstances that occurred on September 9, this factor weighs in favor of protection.

2. The second factor – subject matter of the discussion

There can be no dispute that Colacino questioned Zaborowski about his fundamental
Section 7 right to talk to the Union and to talk to other employees about the Union. The subject
matter of the September 9 meeting was the Union’s organizing of Respondent’s employees, and
Zaborowski’s role in that effort. Accordingly, the subject matter at the meeting concerned
employees’ fundamental Section 7 right to organize. Colacino interrogated Zaborowski about
talking to employees about the Union and talking to the Union about where jobsites were
located. Zaborowski was engaged in protected conduct when he defended himself by asserting
his Section 7 rights. Fairfax Hospital, 310 NLRB 299, 300 (1993); Brunswick Food & Drug, 284
NLRB 663 (1978); Palagonia Bakery Co., Inc., supra. As set out earlier in my fact findings, in
response to Colacino’s interrogation, Zaborowski responded: “I know my rights, I can talk about
the Union to anybody. And whether you know it or not, right now there’s two guys in your office
that have been looking for jobs and have been talking about the union. And all I’m trying to do is
show them that there’s opportunities there. And just guide them that they can better their
careers for themselves and their families. Provide them with information is all.”

Respondent cannot credibly argue that the subject matter of the conversation does not
weigh in favor of protection. Like the employee in Stanford Hotel, 344 NLRB No. 69 (2005),
Zaborowski’s “conduct occurred in the context of his attempted assertion of a fundamental right
under the Act,” here, the right to talk to the union and his fellow employees about the Union, and
this “weighs strongly in favor of a finding that [his] remarks were protected.” Stanford, supra at
2.

3. The third factor – nature of the outburst

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As to the profanity, Board case law holds that employees can use profanity while
engaged in protected concerted activity and not lose the protection of the Act. See, e.g. Morton
International, Inc., 315 NLRB 564, 567 (1994); Severance Tool Industries, Inc., 301 NLRB 1166,
1170 (1991); Marion Steel Company, 278 NLRB 897 (1986). The extent of Zaborowski’s
profanity was to say “This (or That) is f-----g bullshit.” There is no question that Zaborowski’s use
of profanity was in reference to the interrogation he was subjected to and defending. There is no
contention that the profanity was directed at or used to describe another employee, Colacino, or
other member of management. Wal-Mart Stores, 341 NLRB 796, 807 (2004). Zaborowski use of
“this” or “that” was a reference to the unlawful interrogation. Compare, Aluminum Company of
stood up and said, “this if f-----g bullshit.” Zaborowski also admits that during the confrontation
he pounded his fist on the table imitating Colacino, who had done the same on prior
performance reviews, telling Zaborowski that he was “a man of his word.” Colacino admitted
that, in prior discussions with Zaborowski, he had banged his fists on a desk and said, “I am a
man of my word.” Both Zaborowski and Colacino admit raising their voices, and using profanity
as the argument escalated and Colacino persisted in his questioning. Zaborowski admits that he
would not sit down during the interrogation because he felt humiliated, was tired of the
interrogation, and felt he was being singled out. Colacino also stood up from his chair and
started to come around the desk. Soon thereafter, Colacino discharged Zaborowski. Zaborowski
left, then returned shortly thereafter and returned the Company’s truck keys, admittedly
slamming them on the desk. He then left without incident. I have heretofore found that
Zaborowski did not lean across the table toward Colacino, and never pointed his finger at
Colacino, as Colacino had done to Zaborowski.

I have found that there was no threat of physical violence during the outburst. For
reasons set forth in my fact findings, I have discredited Colacino’s and Velte’s assertions in this
regard as being in conflict with earlier sworn statements by both men. Support for such a finding
can be found in the fact that Zaborowski left the premises without incident, and without Colacino
calling the police or having Zaborowski escorted from the premises. As noted earlier,
Zaborowski was allowed to return to Respondent’s facility later in the day to pick up his check.
See CKS Tool & Engineering, Inc., 332 NLRB 1578, 1583-1584 (2000) (Board upheld ALJ’s
finding that an employee was discharged unlawfully, even though at employee meeting, he
banged on the table after he was told to leave, was loud and profane; there was nothing in
employee’s body language or posture to warrant perception of fear that he was out of control or
acting in a threatening manner; ALJ concluded that he angrily got up and slapped or banged the
table after he was told to leave, but there was no menacing behavior by employee. ALJ found
that the employee had not engaged in any physically intimidating conduct to cause any
reasonable fear of harm prior to being ordered to leave – he simply got up and departed –
employee did nothing to arouse any reasonable fear of assault even if he did strike the table top
with his hand).

Finally, it is noted that, even if, contrary to what he testified at the unemployment
hearing, Colacino felt threatened by Zaborowski, much more serious conduct, including physical
assaults, if found to have been provoked by the employer, precludes the employer from relying
on such misconduct to justify discharge. Palagonia Baker, supra at 532, citing, e.g., Caterpillar,
Inc., 322 NLRB 674, 676 (1996) (employee called supervisor “motherf---ing liar,” threatened to
deal with him on the outside, and struck supervisor with his finger); Tubari, Ltd., 287 NLRB
1273, 1285 (1988) (employee threw gloves on floor, angrily headed towards company president,
screaming and another employee had to stop him); NLRB v. Vought Co., 788 F.2d 1378 (8th
Cir. 1986) (employee’s abusive, profane, and threatening language toward supervisor provoked
by repeated company violations of his rights); E. I. DuPont & Co., 263 NLRB 159 (1982) (open-
palmed push of supervisor insufficient to justify discharge).

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The Board has long held that an employer cannot provoke an employee to the point
where he commits acts of misconduct including insubordination, profanity, threats, or even at
times physical assaults, and then rely on such acts to discipline employees. See Palagonia
Bakery Co., Inc., supra at 531 (2003), and cases cited therein. In Consumer Power Co., 282
America, 338 NLRB 20 (2002) (repeated sustained ad hominem profanity, referring to
supervisors as “those motherf---ers” and asking how the supervisor was going to “f--- us now,”
removed employee from protection of the Act). Lastly, Colacino admitted that during the
exchange he probably used profanity, which is not uncommon at the Company.

Colacino testified that he fired Zaborowski for alleged insubordination during the
meeting. I find that Zaborowski’s conduct, under the circumstance, was not so insubordinate as
to cost him the protection of the Act. In F.W. Woolworth, 251 NLRB 1111, 1112-1113 (1980),
the Board found conduct protected despite the fact that an employee refused to sit down after
being directed to do so by the general manager, and after being told he was out of order, which
resulted in “escalating temperament” on the part of both. As the Board noted in F.W. Woolworth
at 1114:

“The turbulence inherent in union activity arises from rivalry and division likely to provoke
even the docile to petulant behavior. For that reason – whether in the context of an economic
strike, grievance presentation or organizational activity – emotional excess manifested by
employers in resisting management is not committed under this law to the absolute judgment of
employers. Indeed, congressional guarantees embodied in Section 7 of the Act would be
jeopardized if every act of disrespect or insubordination emerging from a protected dispute
which divides management from its workforce, renders the employee as fair game for
discipline.”

Similarly here, both Colacino and Zaborowski raised their voices. While Zaborowski
refused to sit down when Colacino told him to, this was a result of Colacino’s relentless
interrogation – telling Zaborowski to “sit down, calm down, and answer the question.” As noted
earlier, Zaborowski testified that he would not sit down because he “felt humiliated. I felt like I
had enough of being interrogated. And I didn’t want him to point his finger at me again and solo
me out in front of all the other employees. I felt embarrassed. And I was upset, yes. I knew my
rights.”

There is no evidence that Zaborowski’s behavior constituted a “public undermining” of
Colacino’s authority in front of employees. As Zaborowski defended himself against Colacino’s
interrogation, Zaborowski told Colacino he had given him the benefit of the doubt with the
Union, and explained that neither he nor any other employees had left his employment, that he
has stood up for Colacino to Davis, and told Colacino in front of the other employees, “I want to
give you the respect that you gave me in hiring me.” When Colacino told Zaborowski to leave,
Zaborowski immediately complied. Zaborowski’s conduct was clearly within acceptable bounds.
Although he used profanity, it was not directed at Colacino. Any insubordination was justified by
the interrogation, and there is no credible evidence of a physical threat. Key Food, 336 NLRB
111 (2001) (Board overruled ALJ and found that verbal dispute involving a challenge to
supervisor’s authority, resulting in the employee poking the supervisor, was protected because
the employer provoked the employee). Compare, Stanford Hotel, supra (employee called
supervisor a “f---ing son of a bitch” while angrily pointing finger at him – even though conduct
weighed against protection, the discharge was still found unlawful because the other three
Atlantic Steel factors favored protection).

4. Factor four – provocation by unfair labor practice

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NLRB 130, 132 (1986), the Board held that when an employee is disciplined for conduct that is
part of the “res gestae” of protected concerted activities, the relevant question is “whether the
conduct is so egregious as to take it outside the protection of the Act, or of such a character as
to render the employee unfit for further services.” Clearly, Zaborowski’s conduct was not so
unreasonable as to cost him the protection of the Act. See e.g., Key Food, supra (employee’s
abusive and profane tirade not so unreasonable in relation to employer’s provocation as to
justify discharge).

Respondent cites the recent case of Waste Management of Arizona, 345 NLRB 114
(2005) for the proposition that Zaborowski’s conduct removed him from the protection of the Act.
I do not agree and find that the facts of Waste Management are significantly different from the
instant case. In Waste Management, an employee who supported the union in that case and
who had been the target of earlier Section 8(a)(1) violations by the employer, was fired after a
tirade directed against his supervisor, whose name was Rush. The confrontation began when
the employee received his weekly paycheck and believed it to be a lesser amount than he was
owed. He sought out his supervisor and voiced his complaint. The supervisor explained how the
paycheck had been calculated, but the employee did not accept the explanation. Instead he
believed that the employer had reduced his check in retaliation for the employee’s Union
support. 15The employee then launched into a tirade. In the tirade the employee became
belligerent by screaming at his supervisor: “this is f------ bullshit”; “you’re f------ with me because
we’re for the Union”; this isn’t f------ Rush Management.” Rush in response, repeatedly asked
the employee to come into his office to discuss the matter, but each time, the employee refused
and cursed more loudly. Then the employee clocked out and left and was terminated.

After citing Atlantic Steel and looking at the factors dictated by that case, the Board
concluded that the tirade lost the protection of the Act and was a lawful reason to terminate the
employee. The Board, in reaching this decision, found that the tirade was caused by the dispute
over the reduced pay, which was not an unfair labor practice. Further the Board found that the
Respondent’s reaction to the tirade did not constitute disparate treatment noting that General
Counsel did not show that the Respondent tolerated behavior comparable to the employee’s
conduct in question. The reverse is true in the instant case. I have already found that Colacino’s
unfair labor practice, that is, the coercive interrogation of Zaborowski, was the direct and
immediate cause of Zaborowski’s outburst. And, here, the General Counsel demonstrated that
Colacino had tolerated similar outbursts by Zaborowski in the past, noting that the previous
outbursts were not over Union-related matters.

Colacino testified that on a few occasions prior to September 9, he had engaged in
heated discussions with Zaborowski. On those few prior occasions, Colacino acknowledges that
he took absolutely no disciplinary action against Zaborowski about any alleged problem. The
record fails to support any inference that Zaborowski was a problem employee who Colacino
could no longer tolerate. Further, if Colacino knew Zaborowski had a “short fuse,” he would
have known he could provoke Zaborowski into an outburst, or act of misconduct. See
Consolidated Freightways Corporation of Delaware, 264 NLRB 541, 543 (1982) (“when an
employee’s verbal outburst is a direct, and in this case foreseeable, consequence of the
respondent’s unlawful conduct, any resulting formal reprimand violates Section 8(a)(1) of the
Act.”

15 Though the reduction in the employee’s pay was alleged to have been a violation of
Section 8(a)(3) and (1) of the Act, the ALJ and the Board dismissed this allegation.

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Velte testified that Respondent’s counsel asked him to be at the shop on a certain day to
give a statement of what happened at the September 9 meeting. Velte arrived and gave a
statement to Respondent’s counsel in Colacino’s conference room. He was asked by counsel to
give in his words what happened at that meeting. The statement was for use in this unfair labor
practice case. Respondent’s counsel did not tell Velte the purpose of the affidavit. Respondent’s
Finally, in assessing the issue of provocation, it is appropriate to compare the
seriousness of Respondent’s conduct with the level of an employee’s reaction. Palagonia
Bakery Co., Inc., supra. Here, the interrogation was egregious, and establishes that Colacino
violated Section 8(a)(1) by his interrogation and Section 8(a)(1) and (3) by discharging
Zaborowski, as alleged.

5. Did Respondent promulgate an unlawful restriction on solicitation?

Colacino admitted interrogating Zaborowski about his union organizing efforts. He
defended his actions by stating that he qualified his interrogation by using the phrase “my time”
or “company time.” Even if Colacino did limit his interrogation to “my time” or “company time,”
the “on my time” prohibition violates Section 8(a)(1) of the Act. Shrewsbury Nursing Home, 227
NLRB 47 (1976); Alert Medical Transport, 276 NLRB 631 (1985) (prohibition and discharge
violates 8(a)(1), in absence of evidence that the company ever previously had such a rule);
Churchill’s Restaurant, 276 NLRB 775 (1985) (manager violated Section 8(a)(1) when he
interrogated an employee at a meeting with employees as to whether the employee was
distributing union cards on “Churchill’s time”).

The Board has long viewed rules on prohibiting union solicitation or activities on
“company time” or during “working hours” as overly broad and presumptively invalid because
they could reasonably be construed as prohibiting solicitation at any time including an
employee’s break times or other nonwork periods. See, Our Way, Inc., 268 NLRB 394 (1983);
Krystal Enterprises, Inc., 345 NLRB No. 15 (2005); A.P. Painting & Improvements, 339 NLRB
1206, 1207 (2003); KB Specialty Foods Co., 339 NLRB 740, 742 (2003); Becker Group, Inc.,
329 NLRB 103 (1999).

While an employer may overcome a presumption by showing that the rule was
communicated to employees in such a way as to convey clearly an intent to permit solicitation
during periods and in places where employees are not actually working, Respondent has made
no such showing here. Colacino admits he has no written or even informal solicitation policy,
there are no restrictions on what employees can talk about on the job, or while traveling to and
from jobs. Colacino admits he never communicated any solicitation policy to Zaborowski.
Despite his interrogation of Zaborowski concerning use of his personal cell phone to call the
Union, Colacino admits the cell phones (which are personally owned by the employees) can be
used without restriction, to call family or other organizations such as the local fire department.
All of the evidence on this issue reflects a complete freedom to discuss any subject or to use
cell phones in any manner the employee wants, at any time, unless the discussion or call
relates to the Union. Respondent clearly violated Section 8(a)(1) and (3) by discharging or
threatening discharge because Zaborowski talked to the Union on Colacino’s time. Kelly
Brothers Sheet Metal, Inc., 342 NLRB No. 9 (2004) (violation to tell an employee he could not
talk about the union on “my time” and discharge him); All Season’s Construction, 336 NLRB 994
(2001) (unlawful to tell employees they could talk about the union “on your time,” but “not on my
time,” where there was no evidence of a nondiscriminatory rule). Thus, Colacino’s insistence
that he only used the phrase “my time” is not only no defense, it independently violates the Act.

6. Did Respondent violate the requirements of Johnnie’s Poultry?

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counsel also did not tell Velte that there would be no reprisals. Thus, Respondent, through
counsel, violated Section 8(a)(1) of the Act by failing to provide the proper and required
assurances.

The Board permits an employee to exercise the privilege of interrogating employees on
matters involving their Section 7 rights without incurring a violation of Section 8(a)(1) of the Act,
by requiring that the employer maintain strict compliance with the safeguards set forth in
Johnnie’s Poultry, 146 NLRB 770 (1964). See e.g., Pratt Towers, 339 NLRB 157 (2003).
Respondent, though admitting Velte’s affidavit was taken for use in this proceeding, contends
that the affidavit does not touch on any Section 7 rights. I have no way of knowing whether this
is true or false. I did not read the affidavit and it is not in evidence. The testimony on this issue
was miniscule and I do not know what questions Respondent’s counsel put to Velte. Therefore I
reject this contention. The Board has consistently required an employer to administer three
warnings to each employee it interviews in preparation for an unfair labor practice proceeding,
instructing him of the purpose of the questioning, assuring him that no reprisals will take place,
and obtaining his permission on a voluntary basis. Johnnies Poultry, supra. It has been held that
the safeguards are not unduly onerous or hampering and provide employers with clear guidance
on how to avoid unfair labor practice liability in pursuing the legitimate interest of preparing an
unfair labor practice defense; the benefits of this clarity outweighs any inconvenience to the
employer, especially in view of the significant Section 7 rights the Board is seeking to protect.
Bill Scott Oldsmobile, 282 NLRB 1073, 1075 (1987). Respondent’s counsel’s interview with
employee witness Velte, in preparation for the unfair labor practice case, without giving any
explanation as to the purpose of the interview or assuring Velte that there would be no reprisals
resulting from the interview, was conducted in violation of these strictures. The failure to
administer even one of the safeguards is sufficient to find a violation of Section 8(a)(1). Bill Scott
Oldsmobile, supra (violation when employer’s counsel failed to give two out of three
assurances). See also, Mathis Electric Co., 314 NLRB 258, 264 (1994); Le Bus, 324 NLRB 588
(1997); Standard-Coosa-Thatcher, 257 NLRB 304 (1981) (employer’s counsel violated the Act
when he gave all but 1 of 70 employees, all three warnings; the partial warning fell short of the
protections required). The violation here is more obvious, as the entire atmosphere under which
Velte was asked to give a statement and was questioned was permeated by unremedied
unlawful interrogations of employees, threats of plant closure, and the discharge of Zaborowski,
which occurred right in front of Velte. I find that Respondent, through counsel, violated Section
8(a)(1) of the Act by its pretrial interview of employee Velte. See, HMY Roomstore, Inc., 344
NLRB No. 119 (2005); Switchcraft, 241 NLRB 985 (1979); Palagonia Bakery Co., supra.

Conclusions of Law

1. Respondent, Colacino Industries, Inc., is an employer within the meaning of Section
2(2), (6), and (7) of the Act.

2. International Brotherhood of Electrical Workers, Local 840, is a labor organization
within the meaning of Section 2(5) of the Act.

3. By terminating the employment of David Zaborowski on September 9, 2005,
Respondent violated Section 8(a)(1) and (3) of the Act.

4. By interrogating employees about their union activities, Respondent violated Section
8(a)(1) of the Act.

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5. By promulgating an overly broad and restrictive no-solicitation rule, Respondent
violated Section 8(a)(1) of the Act.16

6. By threatening employees with closing the business because of the Union,
Respondent violated Section 8(a)(1) of the Act.

7. By interviewing an employee in preparation for the instant unfair labor practice hearing
without informing him of the purpose of the interview and without advising him that no reprisal
would take place, Respondent violated Section 8(a)(1) of the Act.

8. The unfair labor practices committed by Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.

Remedy

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

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

Respondent shall rescind the overly broad and restrictive no-solicitation rule it
promulgated on September 9, 2005.

Respondent shall remove from its files any reference to the unlawful discharge of David
Zaborowski and, within 3 days thereafter, notify David Zaborowski that this has been done and
that the discharge will not be used against him in any way. Respondent shall also post an
appropriate notice to employees.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended17

ORDER

The Respondent, Colacino Industries Inc., Newark, New York, its officers, agents,
successors, and assigns, shall

1. Cease and desist from:

16 Though Respondent’s promulgation of an overly broad no-solicitation rule on September
9 is not alleged to be a violation of the Act in the Complaint, it is an integral part of Respondent’s
unlawful interrogation and discharge of Zaborowski and should be remedied.
17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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(a) Interrogating employees about their union activities, membership and sympathies.

(b) Threatening to close the business because of employees’ union activities.

(c) Discharging employees because they engage in protected concerted activities and
because of their union activities.

(d) Interviewing employees in preparation for defense of unfair labor practice
proceedings without first informing them of the purpose of the interview and without first
informing them that no reprisals will take place.

(e) Promulgating an overly broad no-solicitation rule.

(f) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Within 14 days from the date of the Board’s Order, offer David Zaborowski full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make David Zaborowski whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him in the manner set forth in the remedy section of the
decision.

(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against him in any way.

(d) Within 14 days from the date of the Board’s Order, rescind the overly broad no-
solicitation rule it promulgated on September 9, 2005.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(f) Within 14 days after service by the Region, post at its facility in Newark, New York,
copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms provided by
the Regional Director for Region 3, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
18 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
September 9, 2005.

(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C. September 21, 2006

____________________
Wallace H. Nations
Administrative Law Judge

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APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT impliedly threaten to close the business if you elect to be represented by a
union.

WE WILL NOT question you about your union activities.

WE WILL NOT interview any of you in preparation for defense of unfair labor practice
proceedings without first informing you of the purpose of the interviews and without advising you
that no reprisal will take place.

WE WILL NOT promulgate and overly broad no-solicitation rule.

WE WILL NOT terminate your employment because of your union or other protected concerted
activities.

WE WILL NOT in any like or related manner coerce, restrain or interfere with your exercise of
rights guaranteed by Section 7 of the Act.

WE WILL rescind the overly broad no-solicitation rule we promulgated.

WE WILL make David Zaborowski whole for any loss of earnings or other benefits suffered as a
result of his termination, less any interim earnings, plus interest.

WE WILL offer David Zaborowski reinstatement to his former position with no loss of seniority or
other privilege or to a substantially equivalent position if his job no longer exists.

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WE WILL remove from our files any reference to the termination of David Zaborowski, and WE
WILL, within three days thereafter, notify him in writing that this has been done and assure him
that the termination will not be used against him in any way.

COLACINO INDUSTRIES, INC
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
111 West Huron Street, Federal Building, Room 901
Buffalo, New York 14202-2387
Hours: 8:30 a.m. to 5 p.m.
716-551-4931.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 716-551-4946.