Ebroadburl Realty Corp.

National Labor Relations Board - Board Decisions

Nov 22, 1999

330 N.L.R.B. 70 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70
Ebroadburl Realty Corp. t/a Power Equipment Com-
pany and Local 269, International Brotherhood
of Electrical Workers, AFL–CIO. Case 4–CA–
26249
November 22, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On October 16, 1998, Administrative Law Judge Earl
E. Shamwell Jr. issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions ands briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Ebroadburl Realty Corp. t/a
Power Equipment Company, Hainesport, New Jersey, it
officers, agents, successors, and assigns, shall take the
action set forth in the Order.

Henry E. Protas, Esq. and Michael C. Duff, Esq., for the Gen-
eral Counsel.
J. Eric Kishbaugh, Esq., of Gibbsboro, New Jersey, for the
Respondent.
Richard T. Aicher Jr., Assistant Business Manager/Organizer,
of Trenton, New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This
case was heard before me on May 18, 1988, in Philadelphia,
Pennsylvania, pursuant to a charge filed by Local 269 of the
International Brotherhood of Electrical Workers, AFL–CIO
(the Union), on July 14, 1997, against Ebroadburl Realty Corp.
t/a Power Equipment Company (the Respondent); and a com-
plaint issued on December 11, 1997, by the Regional Director
for Region 4. The complaint alleges that the Respondent vio-
lated Section 8(a)(3) and (1) of the National Labor Relations
Act (the Act) by discriminatorily discharging its employee,
Jonathan Smith, because he supported and assisted the Union.
The Respondent thereafter filed an answer denying the com-
mission of any unfair labor practices.

1 We deny the General Counsel’s motion to strike the Respondent’s
exceptions.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge, we disavow his finding that Supervisor Frank
Emers testified that employees Maurice Wood and Jonathan Smith
shared a “very close relationship.” We also do not rely on the judge’s
finding that when the Respondent’s owner, William Friend, testified
that “[t]his is the thanks I get for being a nice guy,” he was referring to
Smith’s covert union organizing attempts.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs and
arguments of the General Counsel and counsel for the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New Jersey corporation, with an office
and facility in Hainesport, New Jersey, is a contractor engaging
in the installation, service, and maintenance of electrical and
mechanical systems for commercial and residential projects and
facilities. During the year ending December 31, 1997, in con-
ducting its business operations described above, the Respon-
dent provided services in excess of $50,000 directly to custom-
ers located outside the State of New Jersey. The Respondent
admits, and I find, that at all times material, it has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that at all material times, Local
269, International Brotherhood of Electrical Workers, AFL–
CIO is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Factual Background1
Since its inception in 1974, the Respondent engaged primar-
ily in selling, servicing, and maintenance of emergency electri-
cal generators for various businesses and organizations, such as
hospitals. Over the years, the Respondent had built a clientele
of repeat and long-term customers with whom it did and con-
tinues to do business on a regular basis.
In about 1984, William Friend and his wife Susan became
the sole shareholders and owners of the Respondent; W. Friend
assumed the presidency of the Company and S. Friend, the vice
presidency at that time. The Respondent admits, and I find,
that William (W. Friend) is, and has been, a supervisor of the
Respondent within the meaning of Section 2(11) of the Act.
The Respondent employed various categories of employees,
including salespeople, clerical, and various technical and/or
skilled workers.
Historically, during the winter months—December through
March—of any given year, the Respondent experienced a
slowdown in its service-related work.2 Accordingly, probably
as a counter measure, in January 1996, the Respondent decided
to expand its customary business to include large scale electri-
1 In this section, I have determined from the total record—
testimonial and documentary and the reasonable references drawn
therefrom—matters I have considered to be proven facts, some of
which are clearly uncontroverted. To the extent the findings in this
section conflict with other evidence, I have discredited such contrary
evidence consistent with my findings here.
2 Friend testified that “during the months of December and January,
February and March, you might as well shut your phone off for service
work because it doesn’t happen.” (Tr. 173.)
330 NLRB No.20
POWER EQUIPMENT CO. 71
cal contracting and sought bids on certain electrical projects.
Notably, 6 months prior, the Respondent had already under-
taken some expansion of its business by taking on heating,
ventilation, and air-condition (HVAC) work. However, in
January, the expansion began in earnest by the Respondent’s
purchasing of an existing electrical contracting business (Ja-
coby Electric). Pursuant to the expansion, the Respondent also
required additional employees and during various times placed
advertisements in local newspapers soliciting various skilled
workers. During the period covering July 1995 through August
1997, the Respondent hired the following (by category) em-
ployees:

1. Sales Personnel–4 6. Helpers–4
2. Clericals–11 7. HVAC–16
3. Carpenters–2 8. Plumbers–6
4. Generator Technicians–6 9. Electricians–93
5. Locksmith–1

Significantly, the Respondent hired replacement electricians
after the termination of alleged discriminatee John Smith in
April 1997.4
By the summer of 1996, the Respondent was positioned to
bid on significant contracts. In August 1996, the Respondent
successfully bid on its first major contract, the Cream O’Land
Dairy project which called for substantial plumbing, air-
conditioning duct, ventilation, and electrical work; the Respon-
dent commenced work on the project in August and by contract
was required to complete it by early January 1997. The Re-
spondent also was the successful bidder on another but smaller
project, Super Fresh, which was scheduled to begin promptly
after the completion of the Cream O’Land job. Meanwhile, the
Respondent continued its customary service related work in
1997 but at the same time it had at least two other projects in
mind for bid, notably a proposed Pep Boys (auto parts store)
job and another for Pepsico (White Castle Hamburgers).5
While these proposals were outstanding, the Respondent,
through Friend, pressured his sales staff to assiduously pursue
other contracts throughout this period of its purported expan-
sion.
As a matter of its personnel policy, the Respondent did not
favor layoffs of its employees. Rather, the Company’s long-
standing policy was to keep its employees working through the
lean winter months at their customary wage rate, even if they
had to work at tasks beneath or out of their trade.6

3 See G.C. Exh. 5. It should be noted that not all of these employees
remained in the Respondent’s employ for the entire period. These
numbers reflect merely that the Respondent hired employees during
this period.
4 These electricians by name were Mark Reckeway, Seth Pearlman,
and Brian Orausky. (G.C. Exh. 4; Tr. 77.)
5 The Respondent never obtained the Pep Boys contract, and the
Pepsico contract which it did secure was not formally signed until the
end of April or in May 1997.
6 Friend, with a measure of pride, testified that there were many
times during his ownership when certain skilled workers did not have
sufficient work to keep them busy. On these occasions, the workers
would go out on other jobs and do menial tasks as assigned, such as
sweeping floors or other busy work. According to Friend, he never laid
off a worker prior to Smith and Maurice Wood, discussed later herein,
and only once since, in the case of an HVAC worker, Luis Ortiz, in
1998. These are the Respondent’s only layoffs under Friend’s owner-
ship of the business.
On or about July 26, 1996, alleged discriminatee Jonathan
Smith, responding to an advertisement placed by the Respon-
dent, applied for an electrician’s position with the Company; he
was unemployed at the time.
On about November 1, 1996, Friend, having determined that
he needed an additional two full-time electricians for the Cream
O’Land project,7 called Smith, whose application he had kept
on file.8 Friend ultimately contacted Smith on November 2 and
offered Smith the position; Smith accepted the job in that con-
versation and agreed to report to work the next day, Monday,
November 3. Friend directed Smith to report directly to the
Cream O’Land site.
Smith did not disclose to Friend at the time of his acceptance
that he was a member of the Union and, moreover, that he had
agreed with Union Organizer Richard Aicher to act as a covert,
unpaid organizer for the Union.9
Although he had been reporting as instructed, about twice a
month, to Aicher, Smith did not instigate any appreciable orga-
nizing of the Respondent’s employees from his date of hire
through around the middle to late February 1997 when he be-
gan somewhat limited discussions about the Union with a fel-
low electrician, Maurice Wood, who was hired by the Respon-
dent contemporaneously with his own hiring. Smith apprised
Aicher of his conversations with Wood. However, because
Aicher still did not want Smith’s organizer role exposed, Smith
only talked about the Union with Wood after work hours and
away from the Respondent’s jobsites.10 After work on about
February 24, Aicher discussed Smith’s organizing activities
with him and decided that in light of Smith’s conversations
with Wood, the Respondent should be advised of Smith’s union
membership and organizing efforts. Aicher suggested that
Smith go to work the next day—February 25—armed with
union authorization cards and union literature and talk to the
other employees before or after work or at lunch about union
representation. Meanwhile, according to the plan, at around 1
p.m. that day, Aicher would fax a letter to the Respondent in-
forming it of Smith’s union membership and voluntary organ-
7 The Cream O’Land contract contained penalty clauses for the Re-
spondent’s failure to meet completion deadlines, and the Respondent
determined that it was at risk of not meeting its timeliness requirements
at the time of Smith’s hiring.
8 Friend also contacted another electrician, Maurice Wood, about
working for the Respondent. Wood had responded to a newspaper ad
that the Respondent evidently had placed in November 1996. Wood
was offered an electrician’s job on November 4 but did not report to
work until November 18, 1996, because he was employed by another
electrical contractor at the time of the Respondent’s offer and wanted to
give notice to that employer.
9 Aicher testified at the hearing that he directed Smith not to disclose
his union affiliation (or his organizing purposes) to the Respondent at
the time he accepted the job. Smith was instructed to keep in touch
with Aicher by telephone and generally report about goings on at the
job. (Tr. 21-22.) Smith had joined the Union on August 22, 1996.
10 Wood did not mention Smith’s conversations about the Union to
any other of the Respondent’s employees or managers while he was
employed. According to Wood, Smith’s discussions with him about the
Union took place in February 1997 when things were getting slow at
the Company, and after Smith’s discharge. Wood described these
prelayoff conversations as being rather general and informational and
only in a limited way covered organizing; Smith also advised that the
Union was sending him to school. After the two were laid off, he
learned more about the Union as Smith talked more about wages and
benefits associated with the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 72
izer status and his activities on behalf of the Union.11 On re-
ceipt of this letter, the Respondent was first notified of Smith’s
activities on behalf of the Union.12 On February 26, both Smith
and Wood reported for work at their usual time. However, they
were informed by the shop supervisor that their immediate
supervisor, Frank Emers, was not there and, as there was no
electrical work for them they were directed to go home.
On February 27, a payday, both Smith and Wood again re-
ported for work and waited around an hour for their supervisor
to arrive. At around 8 a.m., Friend, while handing out em-
ployee checks, advised Smith and Wood that they were being
laid off, citing a lack of work.13
B. The Contention of the Parties
The General Counsel contends that Smith was laid off be-
cause of his membership in the Union and his organizing activi-
ties on behalf of the Union. As to the Respondent’s defense
that Smith (and Wood) were laid off because of a slowdown in
work and specifically the unavailability of any electrical work
for Smith,14 the General Counsel, in essence, asserts that this is
a mere pretext for its unlawful acts. Thus, he argues that he has
made a prima facie case of a violation of Section 8(a)(3) and
(1) of the Act while the Respondent has failed in its burden to
rebut his prima facie case.
The Respondent asserts that Smith was laid off for a legiti-
mate business purpose, essentially, the absence of electrical
work.15 The Respondent acknowledges that it received the
February 25 letter from the Union but asserts that apart from
that, it had no knowledge of Smith’s union membership or ac-
tivities on behalf of the Union. It argues that the record is oth-
erwise devoid of any evidence of its animus against the Union

11 As it turned out, Smith was not assigned to work with the electri-
cians with whom he planned to broach the Union on February 25. He
was assigned unexpectedly to help put in a boiler and performed no
electrical work that day.
12 See G.C. Exh. 2. There is no dispute that the Respondent received
this letter by fax at about 1 p.m. on February 25.
13 The Respondent’s payroll and other records (R. Exh. 2; G.C. Exh.
5) reflect that Wood’s last day of work was February 24. Smith’s was
February 27. However, irrespective of the last day Wood might have
received pay, the credible evidence, including his testimony and the
authorization card he signed (G.C. Exh. 4), persuade me to conclude
that Wood’s official layoff occurred on February 27 along with Smith.
Notably, the Respondent evidently concedes this point at pp. 9–10 of its
brief.
14 Wood does not figure at all in the alleged unfair labor practice
charges in the complaint. However, he is involved in the matter and,
therefore, his layoff will be discussed in tandem with Smith’s.
15 The Respondent has also asserted what I view as certain “make
weight” arguments to buttress its claim of the legitimacy of Smith’s
layoff. For instance, the Respondent asserts that Smith was hired only
for the Cream O’Land job. I reject this contention as I have earlier
determined that Smith was hired not only for the Cream O’Land job but
also in anticipation of the Respondent’s securing other electrical con-
tracts.
The Respondent also suggests that in the face of the work slowdown,
Smith refused opportunities to receive training for nonelectrical work.
I do not credit this as a possible justification for the layoff. Clearly, to
me, during his tenure Smith was viewed by the Respondent as a good,
reliable, and cooperative worker and was willing to work out of his
trade during the alleged slowdown and never refused a nonelectrical
assignment. Thus, in my view, the Respondent’s defense must succeed
or fail on the strength of its proof that Smith was laid off for legitimate
economic reasons as opposed to Smith’s work habits, attitudes, or other
various reasons unrelated to the economic defense.
as well as any purported organizing activities on its behalf by
Smith. In further support of its position, the Respondent points
out that its witnesses testified credibly regarding the slowdown
of electrical work. It asserts the General Counsel’s position
rests solely on what it considers the dubious ground of “suspi-
cious” timing, which to the Respondent is insufficient to estab-
lish an unlawful motivation in laying off Smith, given the total-
ity of the facts and circumstances of this case.
C. The Respondent’s Defense
The Respondent called three witnesses to establish its eco-
nomic defense—Maurice Wood, Frank Emers, and Friend.16
Wood, as previously noted, was hired around the same time as
Smith for the Cream O’Land job where both were assigned to
do electrical work; Frank Emers was their onsite supervisor.
After the Cream O’Land job, both he and Smith were assigned
to the Super Fresh project. According to Wood, after Super
Fresh, he sensed that business was getting slow, but he was
assured by management that a couple of (electrical) jobs were
pending. In addition, both he and Smith were performing quite
a few residential service upgrade jobs and, thus, were busy. In
spite of the apparent slowdown in project work, it was Wood’s
hope that the Respondent would get the electrical jobs because
when he was being interviewed, Friend advised that the Re-
spondent had plenty of work and that he need not worry about
layoffs.17 This was an important (if not the main) consideration
for his accepting the job with the Respondent. However, while
Wood noticed the work slowdown, he testified that he was
never told that a layoff could occur at any time.
Frank Emers was hired by the Respondent in September
1996 as an electrician and served as its Cream O’Land field
supervisor and in other capacities. He was an hourly employee
who had no executive responsibilities and no share or owner-
ship interest in the Company. According to Emers, it was his
observation during and up to the time of Smith’s layoff, that the
Respondent’s economic situation was such that he questioned
whether he himself was going to have a job; that “things were
looking bad.” However, Emers testified that he was not told
this by anyone in management, and he only might have com-
municated his feelings to Smith or Wood at one time or the
other around February 1997.
I found both Wood and Emers to be in the main credible, but
only insofar as they testified about matters within their ken.18
16 The Respondent also called its comptroller (since 1988), Wanda
McDonald. However, McDonald offered no testimony regarding the
Respondent’s economic condition. In the main, her testimony was
confined to personnel matters, including employee timecards, payroll
matters, and employee lists.
17 On May 18, 1988, Wood provided an affidavit at the instance of
the Respondent’s counsel (R. Exh. 3) in which he averred, inter alia,
that to him the Company’s electrical work had decreased and there was
not enough electrical work to keep him and Smith busy. Wood also
stated that he and Smith were informed that there was insufficient work
well before they were laid off. In the affidavit, Wood opines that it was
his feeling that he and Smith were laid off for no other reason than a
work slowdown. This affidavit appears to contradict Wood’s hearing
testimony.
18 Wood, however, was inconsistent in his testimony. However, it is
my decided opinion that Wood was confused about his role in this case
and what actually happened in the layoff. I believe that after his dis-
charge, Wood sincerely thought that he and Smith were discharged
unfairly. Consequently, on February 27, he signed a union authoriza-
tion card. However, sometime after the charge was filed, he later met
POWER EQUIPMENT CO. 73
These individuals were hourly workers and, as such, in no way
privy to the kinds of economic or fiscal data that would sub-
stantiate sufficiently the Respondent’s claim of economic justi-
fication for the layoff of Smith. Also, both Wood and Emers
were mere recent employees and, as such, could not have an
informed idea of the Respondent’s prior business experience or
the vicissitudes of its business cycle. Thus, while they may
fairly comment on their perceptions or discernments about the
amount of work available based on their limited history with
and knowledge of the Company—and conclude there was a
serious falling off of work—they were in no position, however,
to comment authoritatively about the Respondent’s actual eco-
nomic condition then or as compared to other years. Accord-
ingly, on competency grounds, I cannot credit their testimony
for purposes of the Respondent’s economic justification for the
layoff.
This leaves Friend who, as the Respondent’s principal owner
and the person charged with the oversight of the Company’s
operations, testified about the circumstances leading to Smith’s
(and Wood’s) layoff.
According to Friend, both Smith and Wood were hired be-
cause of the Company’s need to fulfill completion schedules for
the electrical phase of the Cream O’Land contract. The electri-
cal phase of the contract was completed in early (the first week
of) January 1997, and Smith and Wood were then promptly
assigned to the Super Fresh job which was completed in 3 to 4
weeks (around the end of January). After the Super Fresh job,
the Company had no other major projects calling for the type of
electrical work Smith was hired for, and Friend assigned Smith
and Wood to the warehouse, sorting parts and other cleanup
work associated with the Cream O’Land and the Super Fresh
projects.
During this time, according to Friend, he became concerned
about payroll, that is, having skilled electricians doing menial
tasks, especially in light of the falling through of the Pep Boys
job. According to Friend, Smith and Wood basically performed
menial tasks for nearly the entire month of February.
Friend maintained that both Smith and Wood asked about fu-
ture work while they were doing shop work, specifically
whether any other larger electrical projects were on the horizon.
According to Friend, he honestly told them that there was noth-
ing specific or concrete, to which both workers expressed their
concern. Because he advised them that electrical work was
slowing down, he hortatively asked them if they had any inter-
est in cross-training, e.g., learning how to do generator, HVAC
work, plumbing, or appliance installation work.19 Friend re-
called one specific conversation with Smith and Wood in early
February 1997 near the garage and warehouse area in which he

with Friend privately and evidently was convinced that the layoff was
for lack of work. Hence, a few days before the hearing, he signed the
affidavit basically agreeing that his layoff was for lack work. At the
hearing, it seemed to me that he reverted to his former position. Given
that flip-flop, I, nevertheless, believe he testified as truthfully as he
could under the circumstances.
19 According to Friend, the Respondent had an abundance of genera-
tor work which entitled changing oil and filters, greasing pulleys and
bearings, and inspection of electrical components. According to
Friend, Smith, however, only wanted to do electrical work of the type
for which they were hired on the Cream O’Land and Super Fresh pro-
jects, mainly installing wire, receptacles, light, and other fixtures. I
note that Smith’s training and experience seemed to lend itself to per-
forming electrical generator work.
told Smith and Wood that the Company had available work in
other fields but no electrical work, no projects, and very few
service calls. According to Friend, Smith and Wood performed
service or busy work for several weeks in February 1997,
largely because the Company was negotiating the Pep Boys
contract and his sales representative had advised him not to lay
off anyone. However, according to Friend, the Respondent
could not afford to retain Smith and Wood indefinitely; so
about a week before their layoff, Friend testified that he de-
cided to inform Smith and Wood that there was no work and
that the Company could not continue keeping them employed
in the fashion they were. This decision was based on what
Friend described as extensive discussions with his salesmen
and Emers about the Company’s poor business prospects,20 and
because Smith and Wood were not amenable to cross-train for
other work. Thus, the decision to discharge both Smith and
Wood was reached by him on about February 20 or 21 or per-
haps over that weekend.
Friend further testified:

The decision was to lay off Mr. Smith and Mr. Wood
with the pretense that the salesman was going to put extra
effort into getting some work so we could rehire them
back to do similar types of tasks that they were doing at
Super Fresh or Creamland. [Tr. 183-184.] [Note: I be-
lieve that Friend’s use of the word “pretense” was mis-
taken from the context of his testimony.]

According to Friend, on the following Monday—February
24—on their arrival, the Respondent’s service coordinator (a
man named De Franks), and later himself, informed Smith and
Wood that they were being laid off.21 Smith and Wood were
told by De Franks about the reduced workload and the Com-
pany’s decision to lay them off because of it. Friend confirmed
De Franks and explained to the two that they would be laid off
at the end of the week, that is, they were given the option of
working through the week—to be paid through the last day,
February 27—or terminating immediately. According to
Friend, Wood did not choose to work through the week and,
thus, the Respondent’s records reflect his last day was February
24; Smith continued to work on Tuesday, February 25, for most
or part of that day but did not work on Wednesday, February
26, as he recalls.
Friend testified that the Respondent received the letter from
Aicher and the Union on the afternoon of February 25; he did
not know that Smith was in any way involved with the Union
prior to the receipt of the letter. Accordingly, he generally
denied that the layoffs were connected to the information con-
tained n the letter regarding Smith’s union membership or his
organizing activities on behalf of the Union. Rather, according
to Friend, the reason for this layoff was due to the lack of elec-
trical work,22 and the decision to discharge them had been
reached before receipt of the union letter.23
20 According to Friend, by the weekend, he had been informed by
one of his salesmen, Mr. Kean, that the Company was not going to be
awarded the Pep Boys contract. Kean did not testify. (Tr. 191.)
21 Evidently, Friend happened upon De Franks conversing with
Wood and Smith and then joined the discussion.
22 According to Friend, no other employees were laid off at the time
of Smith’s and Wood’s discharges.
23 Accompanied by his attorney, Friend provided an affidavit to the
Board during the investigation stage of this case; the affidavit was not
produced at the hearing. However, a portion of this affidavit was the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 74
Applicable Legal Principles
In cases where employers are charged with violations of Sec-
tion 8(a)(3)24 and (1)25 of the Act, the Board set forth its test of
causation in the case of Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Under this test, for determining, as here, whether an
employer’s layoff or discharge of an employee was motivated
by hostility toward union membership or union activity, the
General Counsel has the burden of persuasion, prima facie, that
protected conduct was a substantial or motivating factor in the
employer’s decision. If this initial burden is met, then the bur-
den of persuasion shifts to the employer to prove its affirmative
defense, that it would have taken the same action even if the
employee had not engaged in protected activity. If the reasons
advanced by the employer for its action are deemed pretextual,
that is, if the reasons either did not exist or were not in fact
relied upon, it follows that the employer has not met its burden
and the inquiry logically ends. Where an employer asserts a
specific reason for its action, then its defense is that of an af-
firmative defense in which the employer must demonstrate by a
preponderance of the evidence that the same action would have
taken place even in the absence of protected conduct. Thus, an
employer cannot simply present a legitimate reason for its ac-
tion but must persuade by a preponderance of the evidence that
the same action would have taken place. Kellwood Co., 299
NLRB 1026, 1028 (1990).
It is well settled under Board precedent that the timing be-
tween the employer’s action and known union activity can sup-
ply reliable and competent inherent evidence of unlawful mo-
tive for purposes of the Wright Line analysis. Grand Rapids
Press, 325 NLRB 1 (June 15, 1998); Kinder Care Learning
Centers, 299 NLRB 117 (1990); Alson Knitting, Inc., 301
NLRB 758 (1991). Also, where an employer accelerates a
discharge or layoff of an employee in close proximity to union
activity, this, too, may supply evidence of unlawful motive.
IMAC Supply, 305 NLRB 728, 736–737 (1992); American Wire
Products, 313 NLRB 989 (1994).
Discussion, Findings, and Conclusions
A point conceded by the parties, but to different ends, is the
importance of timing in this case.

subject of his cross-examination by the General Counsel. Friend ac-
knowledged that in the affidavit he knew he received the union fax on
February 25 and that he stated in the selfsame affidavit that Smith was
laid off on February 27 or 28. Friend explained this departure from his
hearing testimony, stating he did not have a calendar or company pay-
roll records with him when he gave the affidavit. The General Counsel
attacks Friend’s credibility on this count.
24 Sec. 8(a)(3) of the Act (29 U.S.C. § 158(a)(3)) makes it an unfair
labor practice for an employer to discriminate “in regard to hire or
tenure of employment or any term or condition of employment to en-
courage or discourage membership in any labor organization . . . .”
25 Sec. 8(a)(1) of the Act (29 U.S.C. § 158(a)(1)) makes it an unfair
labor practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7 of the
Act.”
Sec. 7 of the Act (29 U.S.C. § 157) provides, in pertinent part:
“Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion.”
In essence, the General Counsel contends that Smith was laid
off only after the Respondent received the union fax informing
it of his union involvement; that before receipt of the fax, the
Respondent had no announced plans to lay off employees and
historically, during the slow winter months, had never laid off
skilled workers but kept them on at regular salary, sometimes
doing menial or nontrade related work. Furthermore, he ar-
gues, the Respondent produced no documentary evidence of a
serious decline in its business at the time of its layoffs or as
compared to other years to substantiate the proffered economic
defense. Thus, to the General Counsel, because of the close-
ness in time between Smith’s sudden layoff and the Respon-
dent’s receipt of the union fax, the “ineluctable” conclusion is
that Smith, admitted to be a good worker, was laid off (and
never recalled) because of his having engaged in protected
activity.
The Respondent, for its part, minimizes to inconsequentiality
any connection between its receipt of the fax and Smith’s dis-
charge. Rather, the Respondent asserts that there simply was
no electrical work of the type for which he was hired or willing
to do available for Smith and it could no longer afford to pay
him to do menial work. As proof of the nondiscriminatory
nature of Smith’s layoff, the Respondent notes that Wood, a
nonunion electrician, was also discharged at the same time for
the same reason—no work. All in all, the Respondent attrib-
utes the need to terminate Smith (and Wood) to its inexperience
on bidding on large projects and contracts, along with poor
planning in terms of assessing its manpower needs. It contends
that antiunion animus was not what motivated the layoff of
Smith.
Thus, in essence, the Respondent contends that it reached the
official decision to lay off both Smith and Wood days before it
received notice of Smith’s union involvement and activities
because of unavailable and unrealized electrical contract busi-
ness. Additionally, Smith and Wood were both aware of the
Respondent’s perilous economic situation but were unwilling to
train for other work; thus, they were released.
I would conclude, based on the timing between the Respon-
dent’s receipt of the union letter and its sudden and unan-
nounced decision to lay off Smith almost immediately thereaf-
ter, that the General Counsel has made a strong prima facie
case showing that Smith’s union membership and organizing
activities were motivating factors in its layoff decision. While
Wood was also laid off and he clearly was not a known propo-
nent of the Union, I believe, based on Emers’ testimony regard-
ing the very close relationship Wood and Smith shared, that the
Respondent probably determined after receipt of the letter that
they, as newly hired electricians, were both involved with the
Union and sought to eliminate both men to disguise its true
intentions and prophylactically to kill two union birds with one
stone.26 However, whether this is correct or not, Wood’s union
involvement actually is not germane to this matter as he was
not the subject of any charge.
Since the General Counsel has established a prima facie
case, the burden shifts to the Respondent to show that it would
have laid off Smith even in the absence of his union activities.
I have evaluated the Respondent’s proffered defense and find it
wanting in persuasiveness.
26 Based on the credible evidence of record, I would find Emers to be
a supervisor or agent of the Respondent within the meaning of the Act.
Emers reported directly to Friend.
POWER EQUIPMENT CO. 75
At the outset, I should say that I believe the credible evi-
dence does support the Respondent’s contention that during the
winter months of the relevant time frame, it seemingly experi-
enced a slowdown in its business. However, it is equally clear
that this is a historical feature of its business cycle and the Re-
spondent has made allowances for this phenomenon in its per-
sonnel policy, mainly by assigning its skilled employees to
various possibly nontrade tasks until business picked up. As I
have stated, the Respondent’s decision to expand its business to
include larger scale electrical projects was in all likelihood
predicated on the winter slowdown in its electrical service op-
erations. Given that there was some business slowdown estab-
lished by the Respondent here, the question remains as to
whether the downturn was of such magnitude to justify the
layoff of Smith. As noted by the General Counsel, the Respon-
dent produced no records or financial data in support of its
economic defense, offering only the on-the-job perceptions of
Wood and Emers and the testimony of Friend as proof. If
Friend is to be believed, the Respondent placed great store in its
policy of not laying off workers. Thus, one reasonably would
expect some independent corroborating proof of the Respon-
dent’s extraordinary conditions in its business that would ne-
cessitate layoffs.27 This was not done. I would conclude,
therefore, that the Respondent has not persuasively documented
its economic defense.
Moreover, as is often the case, credibility is a determinant
here. In this regard, the Respondent’s main witness, Friend,
while a sincere and well-meaning person in my estimate, did
not persuade me as to the reason(s) for which he laid off Smith.
Notably, I do not believe him when he testified that he hired
Smith (and Wood) solely for the Cream O’Land job. As earlier
noted, in my view, the Respondent’s long-term business objec-
tives included securing additional future projects, one of which,
Super Fresh, was already in hand. Thus, the Respondent
needed sufficient manpower for its long-term goals. Friend
himself admitted that due to the Company’s inexperience in
electrical contracting, it had undermanned the Cream O’Land
job. I believe that Smith and Wood were hired not only for
Cream O’Land but to avoid the manpower problem for future
projects. In fact, Wood credibly testified that he, then em-
ployed, only accepted the Respondent’s offer because of
Friend’s assurances that there was plenty of work and that he
would not be laid off.
Also, I did not find credible Friend’s testimony that Smith
(and Wood) would not cross-train or work in nonelectrical ca-
pacities during the slowdown and, thus, their lack of coopera-
tion contributed to the decision to release them. It is undis-
puted that both men were primarily hired to hang wire, remove
and install fixtures, switches, and the like. This was what they
considered true electrical work. However, during their time
with the Respondent, Smith helped install a boiler and dish-
washer, and Wood went on a plumbing job; both men sorted
material and trash and also performed service work. Smith
(and Wood) credibly testified they never refused an assignment
because it was nonelectrical, or even complained about their

27 See Craft Precision Industries, 305 NLRB 899, 900 (1991), where
sales figures were introduced by the employer to justify layoffs; and
General Combustion Corp., 295 NLRB 1103, 1104 (1989), where
financial data was presented by the employer to establish a sufficient
falling off of sales orders and backlog of business for the relevant pe-
riod.
assignments.28 Both were glad to be working and basically did
what each was asked to do. Even Friend had to admit that both
were good workers.
On balance, I would conclude that the Respondent’s—
Friend’s—real reason for laying off Smith was his union mem-
bership and activities as stated in the February 25 union letter.
On being apprised of this information, I believe that Friend
decided to terminate him and Wood. Thus, I do not credit
Friend’s testimony that he had made the decision to lay off
Smith and Wood over the weekend prior to February 25. As
stated earlier here, Friend’s policy was to keep his people work-
ing and he acted on this policy at other times and throughout
the slow period in 1997. The Respondent never notified any of
the employees, least of all Smith (and Wood), that layoffs were
imminent. In fact, no other workers were laid off during this
alleged slowdown except Wood and Smith. Moreover, a short
time later, the Respondent hired additional electricians but
never recalled Smith and Wood as promised by Friend. I agree
with the General Counsel that it is indeed an inescapable con-
clusion that on receipt of the union letter, the Respondent was
moved to lay off Smith.
My conclusion is buttressed by the following exchange (at
Tr. 190) I had with Friend regarding his decision to lay off
Smith.

JUDGE SHAMWELL: Now the Creamland job for all
practical purposes ended what29 the end of January?
THE WITNESS: The beginning of January.
JUDGE SHAMWELL: The beginning of January.
THE WITNESS: Yes, sir.
JUDGE SHAMWELL: Why didn’t you just fire him and
discharge him then if that’s what you hired him for?
THE WITNESS: That’s a very good question Your
Honor. This is the thanks I get for being a nice guy.
JUDGE SHAMWELL: So I believe you—I can see this
record will not reflect your expressions. You told me in
you own words you knew the job was over the first of
January.

The referenced expression I observed on W. Friend’s face dur-
ing this exchange reflected a certain chagrin indicating to me
that the “this” referred to was Smith’s covert union organizing
attempts disclosed in the letter. As W. Friend later testified,
with a trace of bitterness, “[I] kept him on. Everyone has to put
food on the table. Everyone has mouths to feed in a home envi-
ronment. I did it to keep him on to keep him employed and try
to keep him gainfully employed and at the same time I was
putting pressure on our sales people who our men depend on to
bring the work in.” Thus, it would appear that Friend would
have retained Smith for these reasons and for others as stated
here.
W. Friend, however, clearly felt betrayed by Smith’s partici-
pation in undercover union activities and decided to lay him off
as a result.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
28 Wood testified on the day of his layoff, Friend asked him if he had
experience in any field other than electrical, for example, heating and
air-conditioning; Wood told him he did not, his primary experience was
in the electrical field. (Tr. 147.)
29 This is an error in transcription; “what” should be “at.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 76
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By laying off (discharging) Jonathan Smith, the Respon-
dent violated Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices warranting a remedial order, I shall recommend
that it cease and desist from engaging in such conduct and that
it take certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent having discriminatorily laid off (discharged)
Jonathan Smith, I shall recommend that it be ordered to offer
him reinstatement and make him whole for any loss of earnings
and other benefits he may have suffered by virtue of the dis-
crimination practiced against him, computed on a quarterly
basis as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), less any interim earnings, plus interest as computed in
accordance with New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended30
ORDER
The Respondent, Ebroadburl Realty Corp. t/a Power Equip-
ment Company, Hainesport, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting Local 269, International Brotherhood of
Electrical Workers, AFL–CIO.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Jona-
than Smith full reinstatement to his former job or, if this job no
longer exists, to a substantially equivalent position without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Jonathan Smith whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to Jonathan Smith’s unlawful discharge,
and within 3 days thereafter notify him in writing that this has
been done and that the discharge will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to

30 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its of-
fice in Hainesport, New Jersey, copies of the attached notice
marked “Appendix.”31 Copies of the notice, on forms provided
by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since February 27, 1996.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge employees engaged in lawful pro-
tected activity.
WE WILL NOT discharge (lay off) or otherwise discriminate
against employees because of their known or suspected mem-
bership in and/or support for Local 269, International Brother-
hood of Electrical Workers, AFL–CIO, or any other labor or-
ganization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of rights guaranteed
them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Jonathan Smith full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
31 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
POWER EQUIPMENT CO. 77
WE WILL make Jonathan Smith whole for any loss of earnings
and other benefits resulting from his discharge, because of his
known or suspected membership in and/or support for Local
269, International Brotherhood of Electrical Workers, AFL–
CIO, less any net interim earnings, plus interest.
WE WILL within 14 days from the date of this Order, remove
from our files any reference to Jonathan Smith’s unlawful dis-
charge, and WE WILL notify him in writing that this has been
done and that the discharge will not be used against him in
any way.

EBROADBURL REALTY CORP. T/A POWER EQUIPMENT
COMPANY