Coradian Corp.

National Labor Relations Board - Board Decisions

Feb 19, 1988

287 N.L.R.B. 1207 (N.L.R.B. 1988)

CORADIAN CORP. 1207
Coradian Corporation and Local Union No . 3, Inter-
national Brotherhood of Electrical Workers,
AFL-CIO. Cases 29-CA-12425, 29-CA-12474,
and 29-RC-6555
19 February 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On 12 February 1987 Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the Charging Party filed exceptions and an an-
swering brief to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified, to modify the remedy,'
and to adopt the recommended Order as modified.2
We agree with the judge for the following rea-
sons that the 22 May 1986 memo to employees
signed by the Respondent's branch operations man-
ager, Joseph R. Sofia, read in conjunction with the
memorandum attached to it (which detailed the
Respondent's previous experiences with IBEW
Local 3), contained an unlawful threat to'close the
Respondent's operation.3 Although the underlying
memorandum purports to relate objective facts
about the Respondent's prior history with IBEW
Local 3, and the General Counsel has not chal-
lenged the truth of the statements therein, Sofia's
cover memo strongly implies that the events re-
counted in the memorandum will occur once again,
nearly 9 years after the most recent event discussed
in the memorandum. The cover memo further im-
plies that such events will render operations in the
metropolitan New York City area impossible for
the Respondent, without offering any current evi-
dence for this prediction. The Respondent's predic-
r In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after I January 1987 shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out to the 1986 amendment to 26 U.S.C § 6621. Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
2 We do not adopt the judge's inclusion of a visitatortal clause in his
recommended Order In the circumstances of this case , we find it unnec-
essary to include such a remedial provision and we shall modify the
Order accordingly . See Cherokee Marine Terminal, 287 NLRB 1080
(1988).
tion was thus not based on objective evidence and
did not constitute opinion protected by Section
8(c) of the Act. We find the facts in this case clear-
ly distinguishable from those in Atlantic Forest
Products, 282 NLRB 855 (1987), on which the dis-
sent relies. Here, the Respondent's memo not only
recited its prior 9-year-old history with IBEW
Local 3, which under Section 8(c) and such cases
as Atlantic Forest Products, it had the right to do,
but it also impermissibly suggested that these
events would occur again and threatened to move
or shut down its New York operations by stating
quite clearly that only a vote for the incumbent
Teamsters would allow it to meet its "need to do
business within the New York area." No such
threats, implicit or otherwise, were made in Atlan-
tic Forest Products.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Coradian Corporation, Latham, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
Substitute the following for paragraph 2(e).
"(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
DIRECTION
It is directed that the Regional Director for
Region 29 shall within 10 days from the date of
this decision, open and count the ballots of Peter
McDonald, Joseph Romagnolo, and Israel Padin in
Case 29-RC-6555 and prepare and serve on the
parties a revised tally of ballots and appropriate
certification.
3 In adopting the judge's finding that the Respondent violated Sec.
8(a)(l) by this threat to close, we do not rely on and specifically disavow
the judge's reliance on sentiments regarding the Charging Party ex-
pressed by Sofia at the hearing.
4 Chairman Stephens would reverse the judge's finding that the 22
May memo violates Sec. 8(a)(1) of the Act The memorandum states facts
that no one challenges as untruthful concerning the Respondent's previ-
ous bad experience with Local 3. It expressly identifies the years when
those difficulties occurred The cover memorandum clearly states the Re-
spondent 's view that having its employees covered by Teamsters con-
tracts has helped it become profitable, and the two memoranda, consid-
ered together, suggest the Respondent's opinion that Local 3 contracts
would not be helpful with respect to work in the New York area In
Chairman Stephens' view, this coupling of opinion with an apparently
truthful account of past events does not rise to the level of threats to
close a plant if the employees select a particular union, and it comes
within the protection of Sec 8(c) for the same reasons that the speech at
issue in Atlantic Forest Products, 282 NLRB 855, 859-861 (1987), was
found lawful
287 NLRB No. 128
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Beatrice Kornbluh, Esq., for the General Counsel
David Grandeau, Esq., of Latham, New York, for the Re-
spondent.
Norman Rothfeld, Esq., of New York, New York, for the
Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge On 16
May 19861 and 17 June, Local 3, International Brother-
hood of Electrical Workers, AFL-CIO (Local 3) filed
charges, respectively, in Cases 29-CA-12425 and 29-
CA-12474 against Coradian Corporation (Respondent).
On 20 June the Regional Director for Region 29
issued a consolidated complaint, which alleges, inter alia,
that Respondent unlawfully (a) discharged employees
Peter McDonald and Joseph Romagnola because of their
activities in behalf of Local 3 and because of other con-
certed activity, (b) interrogated its employees, (c) solicit-
ed the grievances of its employees and promised to re-
solve them to induce them not to join Local 3, (d) prom-
ised its employees wage increases, and (e) threatened its
employees with plant closure and other reprisals if they
joined Local 3.
On 24 June the Regional Director issued a report on
challenged ballots, order consolidating cases and notice
of hearing, which consolidated for hearing Cases 29-
CA-12425 and 29-CA-12474 as to which the complaint,
discussed above, was issued, and Case 29-RC-6555,
which involves the challenged ballots of Israel Padin,
and the two dischargees, McDonald and Romagnola 2
The consolidated complaint and challenged ballots
were combined for hearing, which was held before me
on 14 and 15 October in Brooklyn, New York.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, Respondent, and
Local 3, 1 make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation, having its prin-
cipal office and place of business in Latham, Albany
County, New York, and in other places of business in-
cluding Plainview, Long Island, New York, is engaged
in the sale, installation, and service of telecommunication
equipment and related services During the past year,
Respondent sold telecommunication equipment to, and
performed installation and service of such equipment
I All dates hereafter are in 1986 unless otherwise stated
2 The petition was filed by Local 3 on 24 April A stipulation for certi-
fication was executed by the parties and approved by the Regional Direc-
tor on 15 May, and an election was held on 29 May in a unit consisting
of all installers , repair technicians , and add-on technicians employed by
the Respondent at its One Dupont South, Plainview, New York location,
excluding all other employees , guards, and supervisors as defined in the
Act The election resulted in a vote of two ballots for Local 3; two bal-
lots for Local 868, affiliated with the International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America (Local 868)
and three challenged ballots, which are determinative of the outcome of
the election
valued in excess of $50,000, directly for, firms located
outside New York State 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.
Respondent's answer dented knowledge or information
as to the labor organization status of Local 3. Local 3
has been certified by the Board numerous times over the
years as the representative of employees I take adminis-
trative notice of the many cases in which Local 3 has
been found to be a statutory labor organization In fact
this Respondent has recognized Local 3 and maintained a
2-year collective-bargaining agreement with it from 1975
to 1977. I accordingly find and conclude that Local 3 is
a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent had a collective-bargaining agreement
with Local 3 from 1975 to 1977. The contract was not
renewed, and an election was held in 1978 with Local 3
and the Communications Workers of America participat-
ing 3
Joseph Sofia, Respondent's branch manager, testified
that when he worked as a technician for the Respondent,
he helped organize and "brought in" Local 868, Team-
sters In 1983, an election was held with Locals 3 and
868 participating. Local 868 won the election, and a 3-
year contract was executed between Respondent and
Local 868 in February 1983 The contract covered the
five technicians who were employed at the time of the
events at issue
B. The Organizing Drive
After the contract expired in late February 1986, the
technicians became concerned that a renewal agreement
had not been agreed to. They voiced their concern
among themselves and to Respondent's officials. The em-
ployees met on Fridays, which were paydays, the one
day of the week all could be expected to be at the office,
and discussed the union situation Most of this activity
appeared to have taken place in March. Romagnola
asked Respondent's supervisor, Michael Sofia, when the
new contract would be settled Employee Michael
Yergel stated that Romagnola was outspoken, candid,
and openly said that the men should bring in another
union Respondent's witness Julie Errante stated that Ro-
magnola remarked, about once per week, that incumbent
Local 868 "stinks." He occasionally made these remarks
in the presence of Respondent's officials-the Sofia
brothers.
Employee McDonald, too, spoke with fellow employ-
ees Romagnola, Yergel, and Evan Sampson about their
belief that they were underpaid. McDonald also com-
plained to the Sofias that he was underpaid, and asked
for the status of the new contract. The Sofias replied
that the were working on it McDonald also told the
Sofias that he was not happy with the "way things were
9 The outcome of that election was not placed in evidence
CORADIAN CORP
going," because they were not being represented Yergel
also stated that he asked Joseph Sofia about the status of
the contract and he was "put off' by Sofia telling him
that they were in contact with the Local 868 representa-
tive and that he (Sofia) would call him. Joseph Sofia ad-
mitted that McDonald complained about not receiving a
raise
As a result of the technicians' resolve to do something
to obtain representation, inasmuch as they apparently
heard nothing about renewal of the expired Local 868
contract, Yergel contacted Local 25, International Broth-
erhood of Electrical Workers, AFL-CIO (Local 25).
About late March, Yergel and Romagnola met with a
Local 25 representative Romagnola signed a card for
Local 25 and he arranged and attended a meeting with
the other employees at the Local 25 office.
A "state of the company" meeting was held in March,
attended by Respondent's president, its three vice presi-
dents, the Sofias, and the technicians.' Romagnola stated
that when the meeting ended he asked employee Samp-
son, who was with him in the men's room, to sign a card
for Local 25 Sampson was signing a card when Supervi-
sor Michael Sofia entered with Yergel Yergel testified
that on entering the bathroom he saw Sampson filling
out a card on the sink 5
Michael Sofia testified that when he entered the men's
room he saw Romagnola and Sampson sniffing a white
powder that he assumed was cocaine. He told no one of
his observations I cannot credit Sofia. As a supervisor
with the authority to recommend the discharge of em-
ployees, which he has exercised in the past, I find it hard
to believe that he would not tell his brother, the manager
of the branch that employed the two technicians, that
they were engaged in illegal activity on company time
and property, at a meeting attended by the highest com-
pany officials That this activity occurred and no action
was taken against Romagnola is all the more improbable
in view of Respondent's written personnel rules, which
state that "the sale, use, distribution or possession of ille-
gal narcotics while on company time and property . . .
is contrary to company policy and represent grounds for
dismissal."
I therefore credit Romagnola and Yergel that Romag-
nola and Sampson were in the men's room and Sampson
was signing a Local 25 card in plain view when Michael
Sofia entered.
During this period of time when the technicians were
speaking together about Local 25, someone wrote on a
company bulletin board used to schedule work the
words "Local 25 meeting." Employee Yergel stated that
he saw Joseph Sofia erase the message, saying that he
did not want to "see that shit on the board anymore "
Sofia did not testify about this event, but employee Er-
rante stated that she, and not Sofia, erased it She further
stated that when she obliterated the message she asked
"what is this shit doing on my board." I need not resolve
° Also in attendance were the staffs of the Plainview, New York, New
Jersey, and headquarters offices
5 I credit Yergel His account was corroborated by Romagnola His
minor error in stating that this occurred during the organizing for Local
3 is harmless Local 25 was the Union being organized at that time Local
3 was not contacted until later
1209
this conflict inasmuch as (a) the message did not belong
on a company work-schedule board and could properly
be removed by Respondent and (b ) this evidence was ad-
duced apparently to show Respondent ' s knowledge of
the union activity of its employees and its opposition to
such activities Evidence of knowledge and animus exists
apart from this incident.
After meeting with Local 25 representatives and sign-
ing cards for that Union , Romagnola and Yergel again
met with Local 25, but this time its representative in-
formed them that because most of Respondent's work
was in New York City , they should be represented by
Local 3, and not Local 25, which has jurisdiction outside
New York City.
Thereafter , on 15 April , employees John Corcoran,
McDonald, Sampson , and Yergel went to Local 3 All
signed cards that day except Corcoran .6 Three days
later, Romagnola signed a card for Local 3 One week
later he was fired
About 10 to 14 days before Romagnola was dis-
charged, he announced in the office that "we're to join
Local 3, we're going to join the union " Michael Sofia
replied in a joking manner "Oh , so you guys want Local
3, huh " McDonald stated that Sofia 's remark did not
sound threatening and did not scare him, but neverthe-
less he saw the attitude of the Sofias change, and he be-
lieved that the employees were "being alienated."
About the same time , the men met one morning in Mi-
chael Sofia's office before the start of the workday. The
door was open and the men were discussing the union
situation One of the employees saw that Joseph Sofia
was standing in the doorway and the union conversation
ceased . Michael Sofia entered his office and asked if this
was a union meeting or "union talk "7
On another occasion , at the time that the Local 25
cards were signed, Romagnola asked Sampson and
Yergel to speak with him about the Union in Michael
Sofia's office before the start of the workday 8 They
conversed about the Union for 15 minutes with the door
closed Errante opened the door and asked what was
going on , Romagnola said that they \ were talking, and
closed the door They then left and saw, the Sofias stand-
ing outside looking unhappy
McDonald stated that before Romagnola was dis-
charged, the Sofias told him that if the men joined Local
3 or if Respondent became a Local 3 shop , the employ-
6 I cannot draw the inference that Corcoran informed Respondent of
the union activities of Romagnola and McDonald Corcoran was opposed
to the organizing drive, and told the workers that if the Union was suc-
cessful, the Sofias would lose their jobs and the shop would close Al-
though Corcoran might have been somewhat more friendly with the
Sofias than the other employees, there is no basis to find, as the General
Counsel suggests, that Corcoran told Respondent about the union activi-
ties of the two dischargees Indeed, as later discussed, the fact that
Joseph Sofia asked Yergel how the men felt about Local 3 and how they
would vote, shows that Corcoran did not supply him with any such in-
formation
7 This was testified to by McDonald , Romagnola , and Yergel
6 Errante said that this conversation occurred between 9 and 10 a in I
do not credit her it is unlikely that the Sofias would have permitted a
long conversation in a supervisor's office if it had occurred more than I
hour after the 8 a in official start of the workday
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees would lose their jobs as technicians and instead
would be pulling cable "someplace."
The petition was filed by Local 3 on 24 April. Romag-
nola was fired on 25 April. The petition was mailed by
the Board to Respondent, and Joseph Sofia signed a re-
ceipt for it on 29 April.
In the first week in May, Joseph Sofia called employee
Yergel into his office. Sofia told him that Local 3 filed a
petition for an election, and asked him if he knew how
he would vote. Yergel replied that he did not know.
Sofia asked him how the employees felt about the cur-
rent situation and Yergel answered that they were un-
happy with Local 868 because (a) the contract was not
renewed and (b) they did not believe that they were
being represented or would be helped by that Union if
they lost their jobs. Sofia then asked him if he knew how
they would vote and Yergel said "no." Sofia then said
that when he (Sofia) was a technician 3 years ago, Local
3 unsuccessfully attempted to organize the shop. Sofia
told Yergel that during that election campaign, Local 3
agents followed him home and told him about the Union.
Sofia mentioned that Respondent and its Plainview office
"are doing well now," and asked Yergel how the men
felt. Yergel replied that they were upset that Romagnola
was fired. Sofia said that he could not discuss it but that
he had documentation in support of the discharge. Sofia
then asked if the men were complaining about anything
else. Yergel said he did not know and suggested that
Sofia inquire of the men directly. Sofia then said "but
you are the shop steward." Yergel denied being the
steward and Sofia suggested that Yergel become the
steward because he was well liked. Yergel acknowledged
liking work at Respondent, and Sofia asked if there was
anything he was unhappy about. Yergel replied that he
received a good evaluation for a raise 4 months earlier
from Michael Sofia but had not yet received the raise.9
Sofia immediately checked Yergel's file, looked at his
paycheck, and called the vice president of operations at
headquarters in Latham. Sofia told Yergel that he would
look into the matter and asked him if he knew what he
(Sofia) could expect at the election. Yergel said "no."
Sofia then said, in a slightly angry voice, that he had a
"game plan" too, and that he would not "stand for"
anyone using Respondent "as a vehicle to get into Local
3." The conversation then ended. Thereafter, Yergel re-
ceived the raise.
Yergel testified that it was not unusual for him to
speak to Joseph Sofia. If he had a problem he could talk
to Sofia about it, and on occasion, Sofia asked him how
the workers felt as to various subjects. Yergel further
stated that although his answers to Sofia were truthful,
he felt pressured to lie in order to save his job. For ex-
ample, when Sofia asked him how he would vote, he
feared being discharged and he answered that he did not
know, although he did in fact know how he would vote.
The conversation with Sofia did not change his mind as
to how he would vote in the election however. Yergel
further stated that if Sofia had not asked him the ques-
9 The evaluation was apparently performed pursuant to the contract's
provision for annual performance appraisal
tion he would not have mentioned his raise and probably
at a later date would have asked Michael Sofia about it.
Joseph Sofia testified that his conversation with Yergel
was intended to get Yergel 's feelings, hear his "gripes,"
and "enlighten" him as to Sofia's feelings . Sofia said they
had a general conversation in which Yergel mentioned
that he did not receive a raise. Sofia checked and found
that the raise was not put into effect, and Sofia "made it
happen for him." Sofia claimed that his conversation was
not unusual because he frequently speaks to the techni-
cians. Sofia denied asking Yergel how the employees
would vote in the election but admitted telling him of his
experience with Local 3 and Respondent's history with
that Union.
I credit Yergel's version of his conversation with
Sofia. Yergel impressed me as an honest, truthful person
who testified forthrightly and in a straightforward
manner . For reasons to be discussed , I do not credit
Joseph Sofia.
On 7 May, McDonald was discharged. On 15 May, an
election agreement was signed and approved.
The Respondent 's experience with Local 3 and its
opinion of that union were amply demonstrated in
Joseph Sofia's testimony and in election material given to
the employees 1 week before the election. Sofia testified
that his competitors , which were Local 3 shops, found it
impossible to compete with non -Local 3 companies, and
that he has seen such Local 3 firms put out of business
by Local 3.
The election material, signed by Sophia, stated that
the:
Teamsters had brought us to profitability and
kept us very competitive in the New York metro-
politan area.
This Company has a need to do business within
the N.Y. area, I ask for your support in reelecting
Teamsters as your bargaining unit.
Other election material , distributed at the same time,
was written 3 years before, and referred to the 1983 elec-
tion . That material stated, in part, that in 1975 Respond-
ent signed a contract with Local 3:
The Company quickly found that dealing with
Local 3 led to many prohibitive costs and work
rules which nearly forced the company to close its
New York metropolitan operations. UTC soon
found that Local 3 was more at home with electric
contractors than telephone interconnect companies.
In these circumstances, on June 30, 1977, when the
agreement with Local 3 expired , the company took
the steps necessary to remain competitive. The com-
pany contracted no further with Local 3!
Contracting out its wire-pulling and installation
work to union shops, UTC started developing its
own work force; it became independent of the
hiring hall with all its abuses. Only then did UTC-
later Coradin-become the strong company it is
today, able to compete effectively in the tough met-
ropolitan market place.
CORADIAN CORP 1211
C The Alleged Violations of Section 8(a)(1) of the Act
The complaint alleges that about 2 May Respondent,
by Joseph Sofia, interrogated its employees concerning
their union activities, solicited grievances of its employ-
ees and promised to resolve them, promised its employ-
ees wage increases, and threatened its employees with
plant closure
The test for determining whether an employer en-
gaged in conduct in violation of Section 8(a)(1) is wheth-
er the conduct reasonably tends to interfere with the free
exercise of employee rights under the Act Golden Fan
Inn, 281 NLRB 226 at fn. 8 (1986).
1. Interrogation
According to Yergel's version, which I have credited,
Sofia asked him in early May (a) if he knew how he
would vote, (b) how the other employees felt about the
current situation, and (c) if he knew how they would
vote.
Such questions, coming from the highest-ranking Re-
spondent official in the Plainview office, at a private
meeting in his office only about 1 week after Romagno-
la's discharge, could only have had a coercive effect on
Yergel This is especially so in that, during the conversa-
tion, Sofia told Yergel of his negative experience with
Local 3 and that he would not tolerate any employees
using Respondent as a "vehicle" to get into Local 3. In
addition, Sofia asked Yergel if he knew what he (Sofia)
could expect at the election, which, taken together, was
a clear demand that Yergel vote against Local 3
There was no evidence of a legitimate need for such
questioning and Yergel was not assured against reprisals
Such questions constitute unlawful interrogation in viola-
tion of Section 8(a)(1) of the Act Long-Airdox Co., 277
NLRB 1157, 1171 (1985); Noral Color Corp, 276 NLRB
567, 571-572 (1985); Halliburton Co, 265 NLRB 1154,
1185 (1982)
Respondent argues that inasmuch as Yergel stated that
his conversation with Sofia did not change his mind as to
how he would vote, and his answers were truthful, no
violation has been established The Board has long held
that
[T]he test of interference, restraint, and coercion
. does not depend on the successful effect
of the coercion Rather, the illegality of an employ-
er's conduct is determined by whether the conduct
may reasonably be said to have a tendency to inter-
fere with the free exercise of employee rights under
the Act [Waco, Inc., 273 NLRB 746, 748 (1984) ]
Here, under an objective test, the inquiries of Yergel
were clearly coercive. This was made clear when, during
cross-examination by Respondent, Yergel stated that '
When he asked me how I was going to vote I
was in fear of losing my job and I told him that I
didn't know how I was going to vote. When in fact
I did know how I was going to vote
Yergel added that he felt pressured to lie to save his job
2. Solicitation of grievances and promise to resolve
them
During their conversation in early May, Sofia asked
Yergel if there was anything specific he was unhappy
about Yergel mentioned that he had not received a raise,
notwithstanding a good evaluation 4 months earlier
Sofia checked, learned he had not received the increase,
told Yergel that he would look into it, and later secured
it for him Sofia admitted holding the meeting so that
mutual feelings could be exchanged and to hear any
"gripes" Yergel had.
It is clear that Sofia solicited Yergel's grievances at
the meeting and promised to and did correct the griev-
ance mentioned by Yergel.
The solicitation of grievances at a preelection meeting,
during the course of an organization campaign, and the
immediate resolution of the grievance, by the grant to
Yergel of the wage increase, violates the Act Farm Boy
Food Mart, 278 NLRB 409, 412-413 (1986), Radio Broad-
casting Co., 277 NLRB 1112, 1123 (1985). Employees
who were solicited in such a way "would tend to antici-
pate improved conditions of employment which might
make union representation unnecessary." Uarco, Inc , 216
NLRB 1 (1974)
Respondent argues that (a) Yergel's admissions that it
was not unusual for him to talk to Sofia, he was able to
talk to Sofia whenever he had a problem; and Sofia
looked to him for "input" on how the workers felt on
many subjects and (b) the raise was a contractual in-
crease for which Yergel was evaluated and to which he
was entitled months before the union matter began, con-
stitute defenses to this allegation. I do not agree.
Although Yergel may have spoken to Sofia before this
meeting, there is no evidence that such prior conversa-
tions took place in the formal, intimidating, atmosphere
as existed here with Yergel being unlawfully interrogated
and feeling pressured to lie to save his job. This meeting
was clearly designed to solicit Yergel's feelings about
Local 3 in a coercive setting In addition, the only reason
Yergel mentioned the raise was in response to Sofia's
question If Sofia had not asked him he would have
asked Michael Sofia about it. Thus, Joseph Sofia was not
the person to whom Yergel would have addressed such
an inquiry. Moreover, it does not appear that the raise
was automatic According to the contract, the perform-
ance appraisal was to take place annually, on the em-
ployee's employment anniversary date, which it did, but:
These performance appraisals will be major factors
in determining periodic increases in an employee's
hourly wage Salary increase for annual merit
review will be based on the following table:
Outstanding 8-11%
Superior 7-8%
Satisfactory 5%
Developing
Inadequate
-
Thus, the raise was not automatic; but rather was
based only in part on the performance appraisal. Further,
the amount of the raise was not definite Therefore,
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when the raise was discussed at the meeting, Yergel
could not have known that he would definitely receive
it, or its amount. The fact that the raise was not automat-
ic was made clear by Sofia, in that after telling Yergel
that he would look into it, asked Yergel if he knew what
he (Sofia) could expect at the election If the raise was
automatic, Sofia would not have asked the question be-
cause Sofia could not have affected the issuance of a
contractually required increase Rather, Sofia was clearly
asking for a quid pro quo-the raise in exchange for a
vote against Local 3 in the election-a request he could
have made only if he had the power to approve, or not
approve, the raise 10
3 The alleged threats
a The threat to close
The complaint alleges that about 2 May, Joseph Sofia
threatened employees with plant closure.
In the memo, set forth above, distributed to employees
1 week before the election, Joseph Sofia urged a vote for
Local 868, stating that that Union "brought us to profit-
ability and kept us very competitive in . . . New York
. . . . This company has a need to do business within the
New York area."1 i The accompanying letter, written
during the union election campaign 3 years before, stated
that a prior contract with Local 3, which expired nearly
9 years earlier, caused "many prohibitive costs and work
rules which nearly forced the company to close its New
York metropolitan operations," and when the contract
expired, "the company took the steps necessary to
remain competitive," by contracting "no further" with
Local 3, "contracting out wire-pulling to union shops,
and becoming independent of the hiring hall" with all its
abuses. "Only then did [Respondent] become the strong
company it is today, able to compete effectively in the
tough metropolitan market place "
The clear import of these statements, coupled with
Joseph Sofia's hearing testimony that he had seen some
competitors put out of business by Local 3, and others
unable to compete in the marketplace due to that Union,
is that Sofia predicted that if Respondent contracted
with Local 3 it would no longer be able to compete in
the New York area That statement carries with it the
clear implication that Respondent would be forced to
close if Local 3 was selected as the employees' bargain-
ing agent. 12
10 In view of my finding that Respondent solicited and promised to
resolve grievances , I need not consider the complaint allegation that Re-
spondent promised its employees wage increases That allegation appears
to be related to the solicitation and promise to Yergel that his grievance,
not receiving a wage raise, would be remedied There is no other evi-
dence of a promise of wage increases
I I I reject Sofia's incredible testimony that the purpose of the memo
was to give employees a history and to ensure that they voted, and not to
persuade them to vote for Local 868 The memo clearly states that Sofia
"asks for your support in reelecting Teamsters as your bargaining agent "
12 1 reject Sofia's incredible testimony that it made no difference to the
Respondent whether a contract was executed with Local 3 or Local 868
He first stated that "a contract is a contract as far as I am concerned,
"but later testified that he would prefer a contract with Local 868 In
view of the strong sentiment expressed in his hearing testimony and the
22 May memo and its accompanying letter in opposition to Local 3,
The Supreme Court in NLRB v. Gissel Packing Co.,
395 U.S 575, 617 (1969), established certain standards for
determining whether an employer's statements about the
effects of unionization are permissible The Court stated
that any evaluation of employer's statements "must take
into account the economic dependence of the employees
on their employers, and the necessary tendency of the
former, because of that relationship, to pick up intended
implications of the latter that might be more readily dis-
missed by a more disinterested ear."
. . an employer is free to communicate to his em-
ployees any of his general views about unionism or
any of his specific views about a particular union,
so long as the communications do not contain a
"threat of reprisal or force or promise of benefit."
He may even make a prediction as to the precise
effect he believes unionization will have on his com-
pany. 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 demonstrably
probable consequences beyond his control or to
convey a management decision already arrived at to
close the plant in case of unionization . . . If there
is any implication that an employer may or may not
take action solely on his own initiative for reasons
unrelated to economic necessities and known only
to him, the statement is no longer a reasonable pre-
diction based on available facts but a threat of retal-
iation based on misrepresentation and coercion, and
as such without the protection of the First Amend-
ment [395 U S. at 618.]
The Court continued, saying.
As stated elsewhere, and employer is free only to
tell "what he reasonably believes will be the likely
economic consequences of unionization that are out-
side his control," and not "threats of economic re-
prisal to be taken solely on his own volition"
[Supra at 619.]
Here, the 22 May memo made it clear that the proba-
ble consequence of signing a contract with Local 3 was
that Respondent would be unable to compete with other
companies and would be forced to close Dutch Boy Inc.,
262 NLRB 4, 7 (1982) The statements in the memos
"were not limited to the consequence of agreeing to any
particular contract or contract language," but gave the
impression that if Local 3 were selected as the employ-
ees' bargaining agent, Respondent would have to close.
Engineered Control Systems, 274 NLRB 1308, 1312-1313
(1985).
There is no objective support for Respondent's as-
sumption that by contracting with Local 3, its operations
would, of necessity, become unprofitable and it would be
unable to compete in the New York area. Great Scot of
Florida, 256 NLRB 885, 890 (1981). The fact that Re-
spondent had an earlier contractual relationship with
Local 3, which apparently is the basis for its belief that
which allegedly nearly caused Respondent to close, one cannot believe
that Sofia would not care which union Respondent contracted with
CORADIAN CORP 1213
Local 3 would cause it financial ruin, is not a defense to
this allegation Respondent's only contract with Local 3
expired nearly 9 years before the memos were given to
these employees in May 1986 and there was no showing
what demands Local 3 might make now Great Scot,
supra. Moreover, Joseph Sofia, who distributed the
memos, was not even employed by Respondent during
the term of Local 3's contract with it and could not,
therefore, base any prediction on objective facts coming
within his personal knowledge at the time of such con-
tractual relationship
I accordingly find that the 22 May memos constitute
an unlawful threat to close Respondent's operation if
Local 3 won the election, in violation of Section 8(a)(1)
of the Act
b The threat to discharge
I find, based on employee McDonald's credited, un-
contradicted testimony, that the Sofias told him that if
Respondent becomes a Local 3 shop or if the men joined
Local 3, the employees would no longer be doing techni-
cian work-they would lose their jobs and be "pulling
cable someplace "
I further credit this testimony for the reasons that this
view was set forth in the memos issued by Respondent
on 22 May-2 weeks after McDonald's discharge In the
memo, Respondent stated that Local 3 was a union pri-
marily for electrical contractors and not telephone inter-
connect companies like Respondent Further, that one of
the costly phases of the Local 3 contract was the "wire-
pulling" operation, and when the contract expired, Re-
spondent "contracted out its wire-pulling . . . work to
union shops . and started developing its own
workforce "
The remark to McDonald reflected Respondent's
view, later given to the employees in the memos, that
membership in Local 3 necessarily meant that the
member would perform "wire-pulling" or "cable-pull-
ing" work in an electrical contractor's shop, and would
also mean that because such work would not be done at
Respondent, the Local 3 member would not be working
for Respondent
I accordingly find that the statement to McDonald
was an unlawful threat to discharge him if Local 3 was
selected as the employees' bargaining agent, in violation
of Section 8(a)(1) of the Act
D The Alleged Violation of Section 8 (a)(3) of the Act
1 Joseph Romagnola
a Facts
Romagnola was hired in July 1985 at a wage rate of
$8 75 per hour In October, he told Joseph Sofia that he
had a job offer from another company. Sofia gave him a
raise of $1.25 in order to induce him to stay, telling him
that he was a good worker.
Romagnola was a service technician who repaired
equipment at customers' premises. He worked a regular 8
am to 5 p m workday, and would rotate after-hours'
emergency work with the other technicians. At such
time he would be on call, contacted by beeper, from 5
pm to 8a.m
Romagnola was trained for 1 week on Rolm equip-
ment, which many of the customers had Other techni-
cians and the Sofias received more extensive instruction
in Rolm devices, and Romagnola believed that his train-
ing was insufficient
Several incidents occurred prior to Romagnola's dis-
charge that require discussion.
(1) 20 December 1985
Romagnola reported to a customer, where he found no
power to the system According to Romagnola, he called
Joseph Sofia and told him the system was dead, and the
problem was caused by the customer 13 According to
Sofia, Romagnola called him without doing any trouble-
shooting Sofia then had to tell him how to check the
equipment, which he did, and found that a tripped circuit
breaker was the cause of the problem Romagnola reset
the switch and the system operated
Sofia stated that he was dismayed at Romagnola's fail-
ure to utilize basic testing techniques before calling him,
but never discussed this incident with him 14
Nevertheless, Sofia saw fit, allegedly at that time, to
write and place a memo in Romagnola's file regarding
the incident. For the following reasons, I do not believe
that the memo was written contemporaneously with the
event, as testified by Sofia
Four documents, purporting to be an original and
three copies of the memo, were received in evidence
The document identified as the original, and which ap-
pears to be an original (G.C. Exh. 6D), bears the date
"12/20/85" on the top Of the three copies, which in all
other respects are identical to the original, two bear the
date "12/20/85," but one bears the date "12/20/86 " All
four documents state in the text that the incident oc-
curred on "December 20, 1986," an impossibility, since
even at the time of the hearing, that date had not yet ar-
rived Sofia, who admitted that he may have typed these
documents because they do not bear a secretary's initials,
could offer no explanation, other than a typographical
error, to account for the discrepancies in the dates.
It appears to me that the memo was written after the
incident, probably long after the incident, in 1986 If the
original document was written and typed on 12/20/85,
as it states, the only way a copy bearing a 12/20/86 date
could be made is if the original document was altered or
retyped In addition, if someone was writing a letter in
late 1985, it would not be his natural inclination to write
on it two dates in 1986 That would occur only if it was
written in 1986 What I believe occurred is that the doc-
ument was written in 1986, and typed "12/20/86 " Later
the error was noted and an original was retyped with a
"12/20/85" date, and copies made from that However,
the one copy bearing the "12/20/86" date was retained
and inadvertently, by Respondent, produced at the hear-
ing. The further error in the text of "December 20,
13 On such occasions, the customer, even though it had a prepaid serv-
ice contract, would be charged for the service call
14 Romagnola denied asking Sofia how to fix the system
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1986" was not noticed, however, and was therefore not
changed on any of the four documents
The language in the memo itself further convinces me
that the document was written after the fact The last
paragraph states that:
The reason this incident 'is worth mentioning is
for the fact that Joe had just successfully completed
a formal Rolm Maintenance course and his current
status as Senior Technician does not warrant this
type of response.
A memo written contemporaneously with the event
usually deals with the incident itself The statement "the
reason this incident is worth mentioning" seems to be a
later attempt to justify earlier action and appears to be an
attempt to recall and document a prior event not deemed
worthy of comment at the time it occurred Moreover, it
should be noted that at the time of the incident, Romag-
nola had been employed for 5 months without incident
and had received a raise 2 months earlier
Based on the above, I conclude that the 20 December
memo was not written at the time of the incident in 1985
as testified to by Sofia, but rather was written some time
in 1986 as an after-the-fact attempt to justify Romagno-
la's discharge in order to show that documentation exist-
ed at the time of the events At a minimum, this does not
serve to inspire confidence in Respondent's defense. At a
maximum , it impairs Sofia's credibility and is an attempt
to show that documentation existed at a time when it did
not, so that one would be impressed with the severity of
the offense to the extent that it was deemed necessary to
memorialize in a memo in Romagnola's file Whereas in
fact, as admitted by Sofia, he never mentioned the inci-
dent to Romagnola and, assuming that Romagnola did
call for instructions, as also admitted by Sofia, when a
technician calls for help "I would never turn anybody
away that's looking for help." Supervisor Michael Sofia,
too, testified that, as the technicians' supervisor, he helps
if he is able to do so, by accompanying them when they
have problems and showing them what to do
(2) 26 February 1986
In the afternoon, Romagnola was at a customer in Suf-
folk County, Long Island He was called and directed to
report to an account in upper Manhattan, about 65 miles
away, which would have taken him 2 hours to travel to.
Romagnola called Michael Sofia and asked why he had
to go because he was so far away Sofia replied that he
was the only person available. Romagnola agreed and
was returning to the office to pick up a part for the new
call when he was told by Sofia that another technician
had been sent to make the repair, and he did not have to
go 15
A memo was written concerning this incident too, al-
legedly on the day it occurred. The last paragraph states-
15 The other technician , Zenon, was working in Manhattan, much
closer to the account than Romagnola However, Zenon was employed
by Respondent 's New Jersey office and Sofia had to, in effect, borrow
him for the repair
I think for a Senior Technician I, he acted unpro-
fessional in this situation On other occasions Joe
has challenged me by saying-if I didn't like the
work he was doing-fire him.
Romagnola stated that his concern in questioning the
assignment was his belief that he would not be able to
arrive at the new account within the 2 hours that Re-
spondent guarantees to its customers that it will have a
technician at the location.
Romagnola stated that he was never spoken to about
this incident Sofia did not testify otherwise. Neverthe-
less, a memo, purportedly written the day of the inci-
dent, was placed in Romagnola's file.
I do not believe that the incident, or the memo, is in-
dicative of any wrongdoing by Romagnola The "un-
professionalism" referred to in the memo consisted of
Romagnola's questioning the wisdom of his assignment
to an emergency repair located more than 2 hours away
(which would have caused Respondent to default in its
2-hour guarantee) when in fact a technician located
much closer was immediately found. Moreover, although
Romagnola challenged the assignment, when he was told
that he was the only one available and must go, he did
agree to go and in fact was en route when the call was
reassigned. Therefore, he undertook to complete the as-
signment
Furthermore, I believe this memo suffers from the
same taint as the 20 December 1985 note in that it was
not written on the date of the event, as testified by Sofia.
The reference in the last paragraph to other occasions, in
which Romagnola allegedly told Sofia that if he did not
like his work he should fire him, has no relation to the
26 February incident. It was not alleged that Romagnola
said this on 26 February and it was thus meaningless for
Sofia to mention it in his report of the questioned assign-
ment, especially because the discharge occurred 2
months later. The reference therefore to an invitation to
fire could only have meaning if made after the discharge,
in order to justify the firing.
I accordingly find that the 26 February letter was
written after Romagnola's discharge as an afterthought
in order to document and justify his firing
Michael Sofia stated that perhaps before that incident,
a new customer, Mytel, called and requested that Ro-
magnola never return there because he harrassed a
female secretary. Sofia stated that he spoke to Romag-
nola about this incident, but did not place him on proba-
tion.
It must be noted that the Respondent's personnel rules
provide that grounds for dismissal include "discourteous
. . . actions to customers" and "sexual harassment of
customers or their employees" But no disciplinary action
was taken against him.
(3) 19 March 1986
Romagnola was assigned to an emergency call at night
at an important account, Pepsi-Cola, at which none of
the phones were working. He admitted calling Joseph
Sofia at home at least twice around midnight for instruc-
tions on repairing the Rolm system, and to report that he
CORADIAN CORP. - 1215
locked the keys in his vehicle. Sofia gave him advice on
how to fix the equipment When Romagnola left the cus-
tomer he had restored service to 75 percent of the
phones and was told by Sofia to obtain a part at the Re-
spondent's warehouse and return to the customer by 8
o'clock the following morning to complete the repair.
Romagnola claims not to have known the combination to
the warehouse lock and thus could not obtain the part
and therefore did not go to Pepsi-Cola the next morning.
Instead , he reported to Respondent's office about 8 a.m.,
where, according to Joseph Sofia, he was asked why he
did not call the night before to get the combination. He
said he did not think to do that and was told that it was
a "lame excuse," to which Romagnola shrugged his
shoulders. Sofia sent another man to finish the job. A
memo allegedly written at the time, concluded that Ro-
magnola's "total response and professionalism in this
matter was out of line and is not what is expected of a
Senior Technician and is worth mentioning with regard
to his personnel file."
Romagnola defends his actions by testifying that he
was unfamiliar with Rolm equipment and that he fre-
quently called when he had problems and questions with
his calls. He stated that no one complained that he called
too much, and he was told in the past by Michael Sofia
that if he had a problem regarding the work he should
call him or Joseph Sofia. In fact, Joseph Sofia testified,
regarding this incident, that Romagnola "called me look-
ing for help and I offered it. I would never turn anybody
away that's looking for help."
(4) 23 April 1986
On 23 April, 2 days before Romagnola's discharge,
Julie Errante, a customer service representative, alleged-
ly wrote the following addressed to Joseph Sofia, con-
cerning Romagnola:
The above Technician is beginning to interrupt
my work day. He is constantly calling me to ask ri-
diculous questions on products for which he re-
ceived training. Today he was at an account that
has a Rolm CBX, he asked me how to change an
attribute on a trunk.
Mr. Romagnola went to Rolm training for 2
weeks and the command he asked me about is one
of the basic and first things you learn. I feel this em-
ployee is not living up to his standard when he
must call a Customer Service Representative to ask
something so basic. He calls from nearly every ac-
count.
Romagnola stated that he was told by Michael Sofia
that if he had a problem with a service call, he should
call him or Joseph Sofia or, in their absence, Errante.16
He admitted calling Errante between I and 10 times with
such questions.
Errante has been employed by Respondent for 3 years.
Although she had no technical experience, she learned
16 Employee McDonald corroborated Romagnola 's testimony , stating
that Joseph Sofia told him to call if he was unsure of how to make a
repair, and when he called he spoke to the Sofas or to Errante He was
never criticized for calling.
on the job by asking questions of the Sofias and her
sister, who was also employed as a customer service rep-
resentative, and by reading books. She was knowledgea-
ble about the Rolm system, and admitted that other tech-
nicians also occasionally called her with questions.
Errante stated that Romagnola had been calling her
since he was hired "which was understandable because
he was new," but that on 23 April it was getting "a little
out of hand," and her point was that Romagnola called
with simple technical questions that he should have been
able to figure out himself.
In the pretrial investigation, Errante told two Board
agents that she had written this memo 3 to 4 weeks
before Romagnola was fired, but had not written it
within a couple of days before his discharge. She cor-
rected that version at the hearing when she was shown
the memo, and it refreshed her recollection that she
wrote it 2 days before the firing. It does seem odd, how-
ever, that she would not have remembered writing it
when she did and would have denied doing so to the
Board agent who questioned her not long after the
firing."
(5) 24 April 1986
Joseph Sofia wrote the following memo 1 day before
Romagnola's discharge:
On Wednesday, April 23, 1986, Joe Romagnola
was predispatched to be at Glen Cove Hospital at
8:00 A.M.
At 8:20 A.M. Joe came into the office rather than
Glen Cove Hospital. Mike Sofia rescheduled Joe's
dispatch to another account.
The point is that Joe's constant inability to be at
work, at the predispatched location at 8:00 A.M.
causes a hardship on the Control Center, his super-
visor, the Customer and this Company.
Immediate termination procedure should take
place.
Romagnola admits that when he is predispatched the
day before, he is to report to the customer at 8 a.m_ the
following day. Joseph Sofia stated that on 24 April, Ro-
magnola entered Respondent's office at 8:20 a.m. Sofia
thought it unusual that Romagnola was in the office so
frequently because he (Sofia) believed that service calls
had to be made. Sofia called the dispatcher and asked
whether there were any calls for Romagnola to make.
The dispatcher informed him that Romagnola had been
predispatched to report at a hospital account that morn-
ing. He ordered Michael Sofia to send Romagnola on a
different service call, which he did. He then wrote the
above memo, discharging Romagnola. At the hearing,
Romagnola denied being late on 24 April.
Sofia stated that he decided to fire Romagnola as a
result of this last incident, but used as input in making
the decision the February 1986 episode, referred to
above, in which Romagnola questioned his assignment
from Long Island to upper Manhattan.
17 Errante was unsure when the Board agent questioned her, but stated
that it was a long time ago . The charge was filed on 16 May.
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sofia further stated that in deciding to fire Romagnola
he did not know that there would be a union election.
(6) 25 April 1986
Romagnola stated that he was called into Michael
Sofia's office and told by him that he was fired because
he (a) did not live up to his expectations when he was
given a raise in October and (b) had an attitude problem.
Romagnola told Sofia that he had no attitude problem
because no customer complaints were received about
him Romagnola added that he (Romagnola) knew why
Sofia was firing him. Sofia then said that he had nothing
to do with it and he was sorry. Romagnola asked if he
could use Respondent as a job reference and Sofia
agreed, saying that he had "no gripes" with Romagnola.
Sofia also offered to call him if "side" work became
available.
Romagnola stated that up to the time he was fired, nei-
ther Sofia had complained about his work or his attitude
He further testified that he was often asked by them to
correct the work of other technicians He also stated that
he was late only one or two times. Errante stated that
although employees are expected to report at 8 a m , that
rule was not strictly enforced.
Joseph Sofia admitted never speaking to Romagnola
about his failure to abide by company rules, but he di-
rected that Romagnola be spoken to. Michael Sofia
stated that he spoke to Romagnola whenever he did
something wrong, but Romagnola's response was to
invite Sofia to fire him if he did not like the work he did.
Interestingly, when asked who the worst technician was,
Michael Sofia testified that it was Sampson.18
b General Counsel's prima facie case
Romagnola was a leading, outspoken supporter of a
change of union representative in this small unit He at-
tended the first union meeting with Yergel and arranged
further meetings with a union representative for the
other employees He was present when Sampson signed
a card, and was seen doing so by Michael Sofia.
Romagnola organized and attended weekly meetings
of the workers at which they spoke about the union situ-
ation in Michael Sofia's office. On one occasion, they
spoke about the Union with the door open. Joseph Sofia
stood in the doorway and later Michael Sofia asked if
they were holding a union meeting or engaging in union
talk. On another occasion, employee Errante, who testi-
fied on behalf of Respondent, attempted to open the
door but it was closed by Romagnola, after which they
were met with the Sofia's unhappy stares
He also told the Sofias that Local 868, the Union that
Joseph Sofia helped organize and which he preferred
over Local 3, "stinks "
Two weeks or less, before he was fired, Romagnola
announced to Michael Sofia that "we" are going to join
Local 3 or "the union " Thereafter the Respondent's atti-
tude toward the employees changed and they felt "alien-
ated " One week later, Romagnola signed a card for
Local 3 and I week after that he was discharged.
18 Sampson quit after the election
Although Respondent may not have known that Local
3 filed a petition at the time it discharged Romagnola-
the petition was filed 1 day before the firing but not re-
ceived by Respondent until 4 days after the discharge-it
is clear that Respondent was well aware of Romagnola's
outspoken dislike for Local 868 and support for Local 3.
This fact, considered together with the instances of il-
legal solicitations of grievances, interrogations, threats of
discharge and plant closure, coupled with Joseph Sofia's
(a) warning that he would not tolerate any employees'
using Respondent as a "vehicle" to become a member of
Local 3 and (b) hearing testimony that his competitors
have been put out of business by Local 3 and rendered
unable to compete, provide a strong prima facie showing
that Romagnola's union activities were a motivating
factor in Respondent's decision to discharge him. Wright
Line, 251 NLRB 1083 (1980). 1 so find.
C. Respondent's Defense
Having found a prima facie case of unlawful motiva-
tion in discharging Romagnola, the burden shifts to Re-
spondent to prove that it would have fired Romagnola in
the absence of his union activities. Wright Line, supra
Joseph Sofia stated that he decided to fire Romagnola
after the 24 April incident, because he and the customers
had "suffered long enough," and he used, as input in
making the decision, the February 1986 episode in which
Romagnola questioned his assignment from Long Island
to upper Manhatten. Regarding that latter incident, Ro-
magnola questioned the wisdom of sending him on a 2-
hour journey when it was Respondent's policy to guar-
antee a technicians' arrival within 2 hours Romagnola
did not refuse the assignment. In fact he agreed to go
and was enroute when the job was reassigned. I find no
wrongdoing by Romagnola with regard to that incident.
The other incidents, cited by Respondent, do not sup-
port a finding that he would have been fired in the ab-
sence of his union activities. The incidents of 20 Decem-
ber 1985 and 19 March and 23 April 1986 involved criti-
cism for his calling the office for instructions in making
repairs Nevertheless, both Sofias testified that they are
willing to help technicians who call for assistance. Ro-
magnola and McDonald stated that they were told to
call the Sofias or Errante when questions arose. I there-
fore find no basis for faulting Romagnola for calling for
instructions.
Respondent further alleges Romagnola's failure to
appear at the assigned locations on 19 March and on 24
April, as reasons for the discharge, the latter being the
incident that triggered the firing.
On 19 March he was supposed to have returned at 8
a.m. to finish the repair at a customer. He had restored
service to 75 percent of the phones in the totally dead
system when he left the customer after midnight the pre-
vious night. He did not report to the customer the next
morning because he could not obtain the needed part at
Respondent's warehouse the night before because he did
not know the combination to the warehouse lock In-
stead he appeared at Respondent's office at 8 a.m. In
view of the late hour at which he arrived home the night
before, his success in repairing 75 percent of the system,
CORADIAN CORP
and his failure to call Sofia again for the combination
and thus report to the customer on time are not major
offenses. He did attempt to get to the customer in a rea-
sonably timely manner by arriving at work at 8 a m. the
regular starting time, in order to get the needed part.
Regarding the 24 April incident, Romagnola appeared
at Respondent's premises at 8 20 a m., whereas he was al-
legedly supposed to be at a customer at 8 a .m having
been predispatched the day before. Romagnola denied
being late on 24 April, but a document received in evi-
dence stated that he was supposed to be at the account
at 8 a .m. Even assuming that Romagnola was not at the
account at 8 a.m. there is no evidence that this has oc-
curred before Thus, there is no basis for Joseph Sofia's
memo complaining about "Joe's constant inability to be
at work at the predispatched location at 8.00 am." The
19 March incident was not a predispatch situation. He
was simply to return to complete a repair There is no
evidence that Romagnola failed to appear at predis-
patched locations on time, especially in view of the evi-
dence that the 8 a.m. starting time is not strictly en-
forced. The 24 April incident was remedied immediately
with the assignment of another techinician to the custom-
er, and Romagnola's reasssignment to another task.
Moreover, I credit Romagnola's testimony that he had
never been criticized or warned for any work-related
problem. Significantly, when asked to identify the
"worst" technician, Michael Sofia named Evan Sampson
Furthermore, there was no reference to his alleged late-
ness when Romagnola was discharged. i 9 B & P Truck-
ing, 279 NLRB 693, 698-699 (1986)
My findings that documents concerning Romagnola's
alleged malfeasance were not prepared at the time of the
events in question, as testified by Respondent's officials,
but rather were written after the fact, in order to provide
supporting evidence for his discharge, serves to impair
the credibility of the Sofias, as to those matters, and also
as to their denials that Romagnola was fired for his
union activities.
I therefore find that Respondent has not met its
burden of proving that it would have discharged Romag-
nola in the absence of his union activities. Wright Line,
supra
2 Peter McDonald
a Facts
McDonald was hired in November 1982 as a service
technician.
About January 1985, nearly 1-1/2 years before his dis-
charge, McDonald was placed on probation for 30 days
for "poor attitude." He was not suspended or discharged
then At the end of the 30 days, Michael Sofia told him
that he had "improved "
On 20 March McDonald called in sick That evening,
Joseph Sofia phoned McDonald in order to give him an
19 It should be noted that Respondent had grounds for firing Romag-
nola about February 1986 when he allegedly harassed a female employee
of a customer, and in March 1986, when Supervisor Michael Sofia alleg-
edly saw him sniffing a white powder, which he assumed was cocaine, on
company time and property, both of which were in clear violation of Re-
spondent's rules It did not do so
1217
assignment for the following day. Sofia testified, as cor-
roborated by Errante who was with him then, that when
he phoned McDonald's home, McDonald's father an-
swered and said that his son was working at Scotch
Communications that day. McDonald did not have a
phone number for his son, but told Sofia that he (Sofia)
could contact him on his beeper A few minutes later,
Peter McDonald called Sofia and was given an assign-
ment for the next day. Sofia aked him where he was and
McDonald answered that he was having his tax returns
prepared.
Sofia testified that he wanted to get more facts before
he accused McDonald of engaging in outside employ-
ment Thereafter, Sofia phoned Scotch and asked for
McDonald The person who answered said he was not in
and asked if she could take a message. Sofia declined. A
few days passed and Sofia again called, with the same
result.
By this time, according to Sofia, 4 to 5 weeks had
elapsed and on 7 May, Sofia decided to confront
McDonald
The contract between Respondent and Local 868, al-
though expired at that time, had apparently still been
honored by Respondent. Dues were still being deducted
and forwarded to that Union The contract provides.
Conflict of Interest-No employee shall become
a contractor for the performance of any telephone
work or the sale of telephone material or services
without the Employer's express written consent.
McDonald stated that on 7 May in the middle of the
workday he was called to return to the Respondent's
office Joseph Sofia asked him if he was working for
Scotch Communications McDonald replied that he
knows of it Sofia then said that he knew for a fact that
on 20 March he called in sick and worked for Scotch.
McDonald denied doing so Sofia said that he could not
tolerate that and had to fire him, adding that he had not
lived up to Respondent's standards during his tenure
there McDonald was thus fired in the middle of the
workday in the middle of a pay period. Michael Sofia
drove McDonald home that day, and according to
McDonald, Sofia said that he was very surprised to learn
that he was fired and said that his attitude and work had
improved. McDonald asked if he could use Respondent
as an employment reference and Sofia agreed.
Joseph Sofia's version of his 7 May conversation with
McDonald differs in that he testified that McDonald ad-
mitted working for Scotch "on the side," but denied
working for Scotch during Respondent's work hours
Michael Sofia testified that when he drove McDonald
home, he told Sofia that he did not care that he was
fired because he could now work full time for Scotch.
At the hearing, Joseph Sofia stated that the delay in
firing McDonald, from 20 March to 7 May, was due to
his need to (a) do "research and fact finding" to make
certain that the facts were true and (b) consult with his
corporate office Sofia also testified that he was advised
by headquarters to confront McDonald with the Scotch
facts and if McDonald denied involvement, he should
warn him; but if he admitted working for it he should
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fire him. However, Sofia's pretrial affidavit stated that
the nearly 7-week delay was because he (a) had man-
power problem-he needed McDonald, (b) had problems
with Romagnola at that time, and (c) liked McDonald.
In evaluating McDonald's discharge, we must examine
only what Joseph Sofia knew about Scotch Communica-
tions, and McDonald's relationship with it, at the time of
the firing.
If we assume Sofia's testimony to be truthful, on 7
May he (a) believed that McDonald had worked for
Scotch Communications at least 1 day and (b) was told
by McDonald that he works for it on the side. However,
Sofia testified that he did not know (a) what type of
work Scotch was engaged in, (b) how often he worked
for Scotch, or (c) what he did for it.20
The General Counsel seeks to compare the treatment
accorded to McDonald with that of Michael Sofia, who
engaged in outside work, as a supervisor, more than I
year before McDonald's discharge. Joseph Sofia first
learned of it when his director, Bill Smith , called and
asked if he knew that his brother Michael was president
of Mas Communications. Joseph knew nothing about
Mas, and was given its phone number by Smith. Sofia
called Mas and Michael's wife answered. She advised
him to talk to Michael. Joseph told Michael that he
could not be engaged in two businesses at one time, and
he had to decide whether to resign from Mas or from
Respondent. Michael withdrew from Mas and provided
proof of such withdrawal to Joseph.
Mas was formed when Michael Sofia was a supervisor
at Respondent. Former customers of Respondent who
stopped using Respondent and began utilizing Rolm,
called Sofia at home, and used Mas because that compa-
ny could perform the work cheaper than Rolm. Work
was performed for Mas' one customer, Citibank, at night
and on weekends for 6 months.
Mas is still in operation, but Michael Sofia ended his
relationship with that company when confronted by his
brother. Michael receives no renumeration from Mas.
The Sofias stated that there is no company policy pro-
hibiting outside work by supervisors. The union contract
forbids "conflicts of interest" engaged in by unit mem-
bers. However, in a case of a conflict of interest by a su-
pervisor, Michael Sofia stated that the Respondent makes
a decision whether to permit the work. In fact, Michael
testified that he was told to stop work with Mas because
he did not recieve permission from Respondent to per-
form outside work.
zo Testimony at the hearing showed that Scotch was formed 1-1/2 to 2
years before the hearing . Its president was David Fusco, a lifelong friend
of McDonald and an accountant. McDonald, who was one of the found-
ers of Scotch, was a vice president in that firm when it was formed, but
remained an officer for only I month during which time he performed no
work for it and received no pay. McDonald stated that the company was
formed so that Fusco , a systems analyst, could buy computers at whole-
sale prices. Later, however, McDonald stated that Fusco sought to inter-
est him in utilizing the firm to operate a small interconnect company at
which he (McDonald) could install equipment . McDonald declined the
offer and withdrew as an officer. McDonald flatly denied doing any
work for Scotch or any outside work for any other company and denied
working for another company on 20 March McDonald stated that at the
time of the hearing, Scotch was "dormant."
b. The General Counsel's prima facie case
McDonald was active in behalf of Local 3 and signed
a card for that Union . He spoke among his fellow em-
ployees regarding a change of unions and attended the
meeting with his colleagues in Michael Sofia's office at
which Joseph Sofia was seen at the doorway and at the
end of which Michael Sofia asked the men if this was a
union meeting of if they were engaging in union talk.
McDonald told the Sofias that he was underpaid, that
he was not being represented, and that he was not happy
with the current state of affairs at Respondent.
McDonald was also the subject of a threat to dis-
charge in that he was told by Joseph Sofia that if the
men joined Local 3 or if Respondent became a Local 3
shop they would lose their jobs and would be pulling
cable someplace.
The timing of the discharge, coming 8 days after Re-
spondent received the Local 3 petition, supports a ford-
ing of unlawful motivation.
Respondent's knowledge that a Local 3 campaign was
just begun, McDonald's attendance at a meeting con-
cerning union matters at the shop, coupled with, as in
Romagnola 's case, the instances of illegal solicitations of
grievances, interrogations, threats of discharge , and plant
closure, considered with Joseph Sofia's (a) warning that
he would not tolerate any employee 's using Respondent
as a "vehicle" to join Local 3 and (b) animus toward
Local 3 expressed at the hearing , provide a strong prima
facie showing that McDonald 's union activities was a
motivating factor in Respondent's decision to discharge
him. Wright Line, supra. I so find.
c. Respondent 's defense
(1) Failure to investigate
Respondent asserts that McDonald was discharged for
violating the contract's prohibition on outside work. The
contract forbids an employee from becoming a contrac-
tor for the performance of telephone work without the
employer 's "express written consent."
As testified at the hearing , McDonald, during the time
that he was with Scotch Communications , did perform
such work , and he had not received Respondent's writ-
ten consent . However, at the time of the discharge,
Joseph Sofia knew only that McDonald had worked for
Scotch on 20 March , when told by McDonald's father,
and he learned of that after Respondent 's regular work-
ing hours . He did not know what type of work Scotch
was engaged in, how often McDonald worked for
Scotch, or what work he did for it . Thus, when McDon-
ald was discharged, Sofia was told that he worked for
"Scotch Communications." No investigation was done,
prior to the discharge , to ascertain the type of work
Scotch was engaged in. Accordingly, based on the infor-
mation Sofia possessed on 7 May, McDonald may not
have been in violation of the contract if Scotch had been
involved in nontelephone work. Speed-O-Lith Offset Co.,
241 NLRB 928, 932-933 (1979); McCormick Longmeadow
Stone Co., 155 NLRB 577, 579 ( 1965).
CORADIAN CORP
(2) The delay in discharging McDonald
Although Respondent sought to enforce the contrac-
tual' provision, it delayed for nearly 7 weeks the dis-
charge that it believed the contract permitted. Thus it
could fairly be said that Respondent permitted and con-
doned McDonald's outside work from 20 March, when it
first learned of it, until 7 May. Sofia thus ignored the
contract's provision, and tolerated McDonald's work
until Local 3 began its organizing drive. Rex Printing
Co, 227 NLRB 1144 (1977), Great Atlantic & Pacific Tea
Co., 210 NLRB 593 (1974); Thurston Motor Lines, 159
NLRB 1265, 1308 (1966).
The timing of a discharge is also relevant as when it
follows the employer's discovery of union activity
or where the employer unduly delays in effectuat-
ing the discharge until after union activity occurs.
[Gulf-Wandes Corp., 233 NLRB 772, 773 (1977).]
The fact that Respondent delayed in discharging
McDonald for an alleged offense that it became aware of
nearly 7 weeks before he was fired, supports a finding
that McDonald would not have been fired for this al-
leged impropriety even in the absence of his union activi-
ties. Pilliod of Mississippi, 275 NLRB 799, 812 (1985);
United Artists Theatres, 275 NLRB 158 fn. 2 (1985); A &
T Mfg. Co, 265 NLRB 1560 (1982).
Under these circumstances, I am not persuaded by Re-
spondent's varied reasons for the delay in firing McDon-
ald. I reject Joseph Sofia's hearing testimony that the
delay was occasioned by the need to do research and
factfinding to make certain that the facts were true. No
investigation was necessary and none, in fact, was done.
Flite Chief Inc., 229 NLRB 968, 976-977 fn. 44 (1977).
On 20 March, when Sofia first learned of McDonald's
connection with Scotch, he possessed all the facts he ul-
timately relied on in firing McDonald nearly 7 weeks
later. His "research and fact finding" consisted of making
two phone calls to Scotch, asking for McDonald. Thus,
he learned nothing new through his investigation. More-
over, Sofia's prehearing affidavit gave different reasons
for the delay: (a) manpower problems-he needed
McDonald, (b) he had problems with Romagnola, and
(c) he liked McDonald These shifting, contradictory rea-
sons for the delay provide further support for a finding
that Respondent has not met its burden of showing that
it would have fired McDonald in the absence of his
union activities. These reasons, too, demonstrate that
Sofia made a deliberate decision to overlook McDonald's
outside work because of other considerations-manpow-
er problems with Romagnola, and his liking of McDon-
ald Indeed, waiting from 20 March to 7 May did not re-
lieve any of these problems because (a) the manpower
problem still existed in that Romagnola had been dis-
charged, but replaced by Padin and an inexperienced
man, (b) the problems with Romagnola terminated with
his discharge on 25 April, but McDonald was not fired
for another 1-1/2 weeks, and (c) his concern for McDon-
ald presumably would have continued.
1219
(3) Disparate treatment
The contractual provision does not provide for auto-
matic discharge if the employee becomes a contractor
for the performance or sale of telephone work or serv-
ices.21 Rather it states that such work shall not be done
without the Employer's express written consent. Thus, if
Respondent was willing, it could have consented to
McDonald's performance of work for Scotch
At the least, Sofia could have asked McDonald to give
up his work for Scotch. It would be logical for him to
do so because he (a) described McDonald as a "totally
competent" employee who could "handle everything" a
person in his classification was required to perform, (b)
liked McDonald, and (c) gave his brother, Michael, the
choice of giving up conflicting outside employment
when such was discovered.
Michael Sofia testified that he was told to stop doing
outside work because he did not receive Respondent's
permission to perform such work. Such policy, that side
work could not be performed without Respondent's per-
mission, is identical to that set forth in the contract, on
which Joseph Sofia relied in discharging McDonald.
Nevertheless, Michael Sofia was given the option of
ceasing his outside work, which' he did, but McDonald,
not being given that choice, was summarily fired
Indeed, Michael's outside work, in my view, represented
a more egregious conflict of interest than McDonald's, in
that Michael performed work for former customers of
Respondent, who left Coradian and became customers of
Rolm. The customers then left Rolm to become clients
of Mas, Michael's company, because Mas performed
work cheaper than Rolm. These former Coradian cus-
tomers thus had work done by a supervisor of Coradian
at a time when Coradian performed work on Rolm
equipment.
I reject Respondent's argument that it could make a
valid distinction between Michael Sofia and McDonald
because conflicts of interests are prohibited only in the
contract, covering unit employees, and no policy exists
prohibiting such conduct by supervisors. First, the con-
tract does not prohibit conflicting employment. It pro-
hibits such activities if not agreed to by the Employer.
Presumably, if such permission were granted, a conflict-
ing activity could be undertaken by an employee. Fur-
ther, Michael Sofia's conduct in not revealing to his
brother that he had outside employment implies that he
knew it was wrong.
Second, Michael's concession that he was told to cease
such employment because he did not have permission
from Respondent is so similar to the policy, set forth in
the contract covering McDonald's outside employment,
as to permit a valid comparison of the treatment accord-
ed the two. The Board has found that disparate, favor-
able treatment accorded to supervisors engaging in out-
side employment is a factor to be considered in determin-
ing whether unit employees were discriminatorily dis-
charged or properly fired for engaging in outside work.
21 The list of 17 prohibited personnel practices, which are grounds for
dismissal, does not include any restriction on conflict of interest or out-
side work
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Speed-O-Lith Offset Co, 241 NLRB 928, 932-934 (1979);
Hilltop Baking Co ., 93 NLRB 694, 712-713 ( 1951). In
both cases, the Board found that the employees were dis-
charged in violation of the Act.
Here, when Respondent learned of the conflicting out-
side employment of Michael Sofia, it gave him the
choice of quitting his other work , or resigning from Re-
spondent . In contrast , when Respondent learned of
McDonald ' s outside work , he was summarily dismissed
in the middle of a workday in the middle of a pay
period. Such disparate treatment cannot be clearer
I therefore find, for all the above reasons that Re-
spondent has not met its burden of proving that McDon-
ald would have been discharged in the absence of his
union activities . Wright Line, supra
III. THE REPRESENTATION CASE
A. The Challenged Ballots of Peter McDonald and
Joseph Romagnola
The ballots of McDonald and Romagnola were chal-
lenged by the Board agent because their names were not
on the list of eligible voters. The Employer contends
that both employees were discharged for cause prior to
the election Local 3 argues that they were discrimina-
torily discharged in violation of Section 8(a)(3) of the
Act.
It follows from my conclusions that McDonald and
Romagnola were discriminatorily discharged and that
the challenges to their ballots must be overruled. I find,
therefore, that McDonald and Romagnola were entitled
to employee status on 29 May, the date of the election. I
shall therefore recommend that the challenges to the bal-
lots of McDonald and Romagnola be overruled, and that
the two ballots be opened and counted
B. The Challenged Ballot of Israel Padin
1 Facts
Local 3 challenged the ballots of Israel Padin on the
grounds that he is a supervisor and that he was recently
transferred to Respondent's Plainview location in order
to dilute Local 3's strength in the election Respondent
contends that Padin is not a supervisor and is eligible to
vote. Local 868 did not take a position
Padin was hired by Respondent in April 1983 and
worked in its Jericho, New York location. In April 1985,
when that office was relocated to Plainview, Padin was
transferred to New Jersey as a supervisor
In April 1986, Padin asked his manager and Joseph
Sofia for a transfer to Plainview Padin's parents were
getting divorced and his mother wanted her children to
return to her home on Long Island and help pay her
bills. The transfer was approved, and in late April he re-
turned to his mother's house and began work at Plain-
view effective about 2 May.22 He has continued to live
on Long Island thereafter
22 The transfer coincided with the 30 April expiration of the lease on
his New Jersey apartment
On his return to Plainview, Padin was assigned and
worked as a service technician and not as a supervisor
There were no openings for supervisors in Plainview.
Padin denied exercising any supervisory authority
while in Plainview, and no evidence was adduced that
he acted as a supervisor. The only evidence offered was
that he acted as a regular unit employee
Joseph Sofia denied transferring Padin to Plainview to
affect the outcome of the election
Employee Yergel stated that 1 or 2 days after the elec-
tion Padin asked him why he challenged his vote Yergel
replied that he knew that he was a supervisor and should
not have been voting Padin answered that he coud not
wait until this union matter is over so that he could
return to his "old position "
Padin testified that he told Yergel that he could not
wait until this "whole thing" is over It was his hope that
the union matter would cease so that he could return to
doing the work of a technician, without having to deal
with "company politics," such as the challenge to his
ballot, although he added that the union matter did not
affect the performance of his duties. He testified that
when he requested the transfer he had no discussion with
the Sofias regarding when or if he would return to New
Jersey. Padin further stated that he did not know about
the election until the first week of his work in Plainview
2 Analysis and discussion
Padin was a supervisor when he worked in New
Jersey However, during his tenure at Plainview he was
not a supervisor, exercised no supervisory authority, and
performed work as a rank-and-file technician 23 Accord-
ingly, I cannot find that Padin was a supervisor
I also cannot find that Respondent sought to dilute
Local 3's support by transferring Padin to Long Island
The evidence is uncontroverted that Padin, without
knowledge of the election, initiated a request to be trans-
ferred to Plainview due to family problems No discus-
sion was had with him concerning a return to New
Jersey and he does not anticipate such a return.
Some suspicion may be aroused due to the fact that
the transfer was effected at the time that an election was
upcoming to attempt to dilute Local 3's support, since
theoretically as a former supervisor in New Jersey, Padin
could be relied on to vote against Local 3 However,
such doubt concerning Respondent's motives cannot
overcome the substantial evidence that (a) Padin had a
legitimate reason for requesting the transfer, (b) his pres-
ence was needed-after the election Respondent hired
eight additional employees, and (c) he performed unit
work for which he was qualified Golden Fan Inn, 281
NLRB 226 (1986)
The only troublesome question is Padin's alleged state-
ment to Yergel. That statement that Padin wanted the
union matter concluded so that he could return to his old
29 Much was made of Padm's attire He typically wore a white shirt
and suit to work Although some work performed by the technicians in-
volved entering filthy areas, other work, such as working in offices,
could be performed without getting one's clothing dirty I cannot find
that Padin was a supervisor simply because he was "overdressed" for the
job
CORADIAN CORP
position, carries with it the inference that he was in
Plainview temporarily, to vote in the election, and once
his duty was completed he would return to New Jersey
as a supervisor However, Padin's version is the one I
accept, that he told Yergel that he hoped the union situa-
tion would be over so he could continue his work as a
technician without concern for the politics of the elec-
tion and challenge to his ballot. In view of the other evi-
dence that Respondent was not responsible for causing
his transfer to Plainview, I can reach no other conclu-
sion
I accordingly find that the challenge to the ballot of
Israel Padin should be overruled, and that his ballot be
opened and counted
C Conclusion as to the Challenged Ballots
Inasmuch as I have overruled the challenges to the
ballots of Peter McDonald, Joseph Romagnola, and
Israel Padin, I shall recommend that the representation
proceeding be remanded to the Regional Director for
the purpose of (a) opening and counting these three bal-
lots and (b) preparing a revised tally, including the
counts of these three ballots, on the basis of which he
shall then issue the appropriate certification
CONCLUSIONS OF LAW
1 Respondent Coradian Corporation is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2 Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act
3 By discharging Peter McDonald and Joseph Ro-
magnola because of their membership in and activities on
behalf of Local 3, Respondent violated Section 8(a)(3)
and (1) of the Act
4 By interrogating its employees concerning how they
or other employees would vote in the election, by threat-
ening its employees with discharge if they become mem-
bers of Local 3, by threatening its employees with plant
closure if Local 3 won the election or if Respondent
became a Local 3 shop, and by soliciting the grievance
of employees and promising to resolve them in order to
induce them not to join Local 3, Respondent violated
Section 8(a)(1) of the Act.
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Peter McDonald and Joseph Romagnola, I recommend
that Respondent be ordered to reinstate them and make
them whole for any loss of earnings they may have suf-
fered as a result of the discrimination against them. The
amount of backpay shall be computed in the manner set
1221
forth in Isis Plumbing Co, 138 NLRB 716 (1962), as
modified in Florida Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed24
ORDER
The Respondent, Coradian Corporation, Plainview,
New York, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for joining or supporting Local Union No.
3, International Brotherhood of Electrical Workers,
AFL-CIO, or any other union
(b) Interrogating its employees concerning how they
or other employees would vote in the election
(c) Threatening its employees with discharge or plant
closure if they join or assist Local 3 or any other union,
or if they vote for Local 3 in the election.
(d) Soliciting the grievances of employees and promis-
ing to resolve them, in order to induce them not to join
Local 3
(e) In any like or related manner interfering with, re-
straining, 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) Offer Peter McDonald and Joseph Romagnola im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Plainview, New York facility copies of
the attached notice marked "Appendix."25 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
24 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
25 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 Nation-
al 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 "
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply therewith. For the pur-
pose of determining or securing compliance with this
Order, the Board, or any of its duly authorized repre-
sentatives, may obtain discovery from the Respondent,
its officers, agents, successors, or assigns, or any other
person having knowledge concerning any compliance
matter, in the manner provided by the Federal Rules of
Civil Procedure. Such discovery shall be conducted
under the supervision of the United States court of ap-
peals enforcing this Order and may be had upon any
matter reasonably related to compliance with this Order,
as enforced by the court.
IT IS FURTHER ORDERED that Case 29-RC-6555 be
severed from the complaint cases and that it be remand-
ed to the Regional Director for Region 29, and that the
challenges to the ballots of Peter McDonald, Joseph Ro-
magnola, and Israel Padin, which were cast in a repre-
sentation election conducted in said case on 29 May 1986
be, overruled and that the Regional Director be directed
to open and count the challenged ballots of Peter
McDonald, Joseph Romagnola, and Israel Padin, and to
prepare and serve on the parties a revised tally of ballots
and an appropriate certification.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees concerning
how they or other employees would vote in an election.
WE WILL NOT threaten our employees with discharge
or plant closure if they join or assist Local 3 or any
other union, or if they vote for Local 3 in an election.
WE WILL NOT solicit the grievances of employees and
promise to resolve them, in order to induce them not to
join Local 3.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Peter McDonald and Joseph Romag-
nola immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them.
WE WILL remove from our files any reference to the
unlawful discharges of Peter McDonald and Joseph Ro-
magnola and notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
CORADIAN CORPORATION