McClain & Co., Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 17, 2011

22-CA-029792 (N.L.R.B. Oct. 17, 2011)

JD(NY)–40–11
Lyndhurst, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
McCLAIN & CO., INC.
and Case 22-CA-29792
CRAIG H. LIVINGSTON, an Individual
Bernard S. Mintz, Esq., for the General Counsel
Douglas S. Zucker, Esq., and
Kathryn Van Deusen Hatfield, Esq.,
(Bauch, Zucker, Hatfield LLC), of
Springfield, NJ, for the Respondent
Craig H. Livingston, Esq., (Livingston, Siegel,
DiMarzio, LLP), of Nutley, NJ, for the
Charging Party
DECISION
Statement of the Case
ELEANOR MACDONALD, Administrative Law Judge: This case was heard on
May 24 and June 2, 2011, in Newark, NJ and New York, NY. The Complaint alleges that
Respondent, in violation of Section 8(a)(1) and (3) of the Act, threatened its employees with loss
of work if they complained concertedly, created the impression that its employees’ protected
activities were under surveillance, interrogated employees about their union activities and
discharged its employees Frank Bruno, Ivan Casiano and Daniel Brattoli. Respondent denies
that it has engaged in any violations of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent on July 29, 2011, I
make the following
Findings of Fact
I. Jurisdiction
Respondent, a corporation with an office and place of business in Lyndhurst, New
Jersey, is engaged in the rental of under-bridge access and aerial equipment, and the provision
of traffic control services. Respondent annually purchases and receives at its facility goods and
services valued in excess of $50,000 directly from suppliers located outside the state of New
Jersey. Respondent admits, and I find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act and that Teamsters Local 210, International
Brotherhood of Teamsters, is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Practices
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A. Background
McClain & Co. establishes traffic patterns for work zones on highways and bridges so
that inspections and work on bridges and signs may take place without injury to either the
workers or the driving public. Respondent is a subcontractor to the engineering firms that are
hired to perform the actual inspections and work. The contracts between McClain and the
engineering firms specify the equipment to be used and the traffic control duties of the
company. These contracts generally have a two year term; for each specific traffic control job,
Respondent may get from one week’s to a few days’ notice. There are frequent cancellations
due to weather and other factors. Respondent also performs non-contract work for engineering
firms.
The headquarters of McClain is in Virginia.
In Lyndhurst, New Jersey, McClain maintains an office and a yard for storing and
maintaining equipment. These locations are not contiguous. The company also has a terminal
in Danbury, Connecticut.
The following individuals are admitted to be supervisors and agents of Respondent
within the meaning of Section 2(11) and (13) of the Act:
Matthew Pasquale Regional Manager
Joseph Ferrer Project Manager
Alan Ladd Equipment & Yard Supervisor
Certain of Respondent’s employees hold a Traffic Control Technician (TCT) certification.
To be certified as a TCT a person must be trained in setting up traffic patterns and performing
safe traffic control.
Each crew sent out to perform a job has a team leader. An employee who is chosen to
be team leader on one job would not necessarily be the team leader for the next job to which he
was assigned. The team leader is in charge of the crew. He is responsible for informing his
crew of the time to report to the yard for the job and he must get the trucks equipped and ready
to leave. The team leader has no input as to how a job is staffed.
On May 9, 2011 Respondent entered into a Consent Agreement with the Regional
Director of Region 22 of the National Labor Relations Board. The Consent Agreement,
approved and so ordered by the United States District Court, required Respondent to offer
Frank Bruno, Daniel Brattoli and Ivan Casiano opportunities to return to work pending final
disposition of the instant case by the National Labor Relations Board.
The Company handbook sets forth procedures to be followed in a layoff:
When a reduction in force is necessary or if one or more positions are eliminated,
employees will be identified for layoff after evaluating the following factors:
1. Company work requirements;
2. Employee’s abilities, experience, and skill;
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3. Employee’s potential for reassignment within the organization; and
4. Length of service.
B. Testimony of Employees
Frank Bruno
Frank Bruno worked for McClain & Co. from December 2007 until August 25, 2010.
Bruno was certified as a TCT. On his last day of work, Bruno had the greatest seniority of any
TCT employed in Lyndhurst. Bruno holds a CDL; he is trained to operate an under bridge
inspection truck (UB truck), and he is trained to operate high rail equipment to check bridges
that span railroad tracks. Bruno usually works from the Lyndhurst terminal. He has also worked
from the Danbury terminal and in Maryland. He has worked in various New York State regions
including the boroughs of New York City, Nassau, Suffolk, Westchester and Putnam counties
and in the areas around Utica and Binghamton, NY.
Bruno testified that for each job to be performed by the company Project Manager Ferrer
would send an email to the team leader for that job specifying a list of equipment and naming
the employees assigned to the job. The team leader had the responsibility to call his crew
members to tell them what time they should be in the yard before leaving for the job. All
employees report to the yard before going out to work and they return to the yard after work
every day.
Around February or March of 2010 McClain appointed new management in Lyndhurst.
Ladd became the yard manager and Pasquale took over as regional manager. Bruno testified
that conditions improved at this time: payments for prevailing wage rate jobs were now made
according to legal requirements and hours of work were adjusted to conform to DOT
regulations.1 Bruno testified that conditions deteriorated when Ferrer became project manager
in June 2010. Bruno said that favoritism became a factor in job assignments. New employees
were hired and senior employees noticed that their hours or work decreased. Bruno said he
had been working five shifts a week but after Ferrer came on the job he was working only three
or four shifts per week.
The new management team held a meeting with employees in July 2010 to announce
new rules about write ups. Ladd, Ferrer and Pasquale attended the meeting in the yard. Bruno
testified that Ladd told the employees that as of that day the slate would be wiped clean of prior
write-ups; whatever happened in the past was in the past and they would start fresh from that
day. As of the day of the meeting, Ladd explained, three write ups would equal a termination.
Ladd also told the employees that the team leader on a job must arrive at the yard 30 minutes
prior to the time set forth in the email which assigned the job, and laborers must report 15
minutes before the set time. At the meeting Ladd distributed a notice reiterating some of the
points made in his remarks to employees. The notice additionally urged employees to perform
pre-trip and post-trip inspections, instructed employees to top off the fuel on the way back to the
yard and told employees not to leave garbage or traffic cones in their equipment at the end of
the day.

1 At some point a DOT inspection had taken place and it was found that employees were
working double or triple shifts, thereby violating restrictions on consecutive hours worked.
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Bruno testified that senior employees discussed their concerns about favoritism and
decreased hours among themselves. Then, Bruno and others complained to Ladd in the yard.2
Employees also brought their complaints to Ferrer, but Ferrer was hard to contact because he
was in the office. Eventually, Ladd expressed annoyance about the employees’ complaints;
Ladd did not prepare the employees’ schedules and he told them to speak to Ferrer.
On July 21, 2010 Ferrer sent an email to all employees. The note stated, in relevant
part:
I have been getting numerous complaints from Al [Ladd] that some, NOT ALL of you are
complaining to him about your shifts and who’s doing what and getting what. I’m not
going into the topic of how you should mind your own business and stuff like that. All I
have to say is some of you aggravate him and then he aggravates me, so easiest way to
remedy this is…. 1. you aggravate him. 2. He aggravates me. 3. I take you off schedule.
Simple as that. He has nothing to do with the schedule so leave him out of it. You have
a question, ask me. If I don’t answer, keep trying. For those who analyze the schedule
and notice an error by all means let me know via email or text and I will correct it, but
don’t call me about this guy doing this and that guy doing that, I need this, and I need
that. I will not cater to your needs, so don’t ask me to. And as always, please feel free
to contact your Regional Manager if you are not cool with what’s going on …. Have a
nice day. (No changes have been made to the original as written by Ferrer.)
Also in July 2010 Bruno was told by co-worker Daniel Brattoli that Brattoli had called the
company headquarter in McClain, Virginia, and had left a message on owner Daniel McClain’s
voice mail about the employees’ complaints. A few weeks later, Bruno also left a message on
Daniel McClain’s voice mail. McClain did not return Bruno’s call.
On August 30, 2010 Ferrer sent another email to employees. The note stated in
relevant part:
Hi everyone, just want to let everyone in on some changes made as of late. Al [Ladd] no
longer gets a copy of the schedule…. This is coming from Va. Apparently, a call may
have been made down there and some complaints were made about certain things that
will not be mentioned so please don’t ask. Also effective today, no one is allowed to
come up to the office. If you have a payroll issue, please either call or email Chrystal
with your concerns. If it’s a question directed towards me, either call, e mail or wait at
the yard. If anyone comes unannounced to the office, they will be taken off the
schedule. Sorry it has to come to this guys, but it’s out of my hands and I have to follow
the rules given to me….
On August 13, 2010 Bruno had an accident with an arrow board.3 Bruno filed an
accident report which stated: “I was going back to the yard from the back road when I heard a
pop. I turned – the truck pulled to the right. I turned the truck and hit the curb with the arrow
board. The wheel must have hit the curb and bounced up and flipped the [arrow board] on its
side. [The] side of arrow board has damage on the left front corner, trailer not damaged.”
Bruno included a diagram in his accident report: the diagram showed damage in the upper left
corner of the arrow board. Bruno said that his vehicle had a blown tire. Bruno testified that the

2 Bruno witnessed other employees voicing their complaints to Ladd.
3 An arrow board consists of a trailer with a lighted arrow sign to direct traffic in a certain
direction.
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accident occurred when he took a drink of water and began to choke. He came too close to the
curb and heard a pop when the tire hit the curb. The arrow board flipped over when he pulled
the truck away from the curb. Bruno said he was going 25 miles per hour when the accident
occurred. He denied that there was extensive monetary damage to the arrow board.
Bruno called Ladd who dispatched an employee with a spare tire. Bruno spoke to Ladd
in the yard and offered to come in on his own time to fix the arrow board. Bruno testified that he
asked Ladd whether he would he would be written up for the damaged arrow board and Ladd
replied, “Don’t worry about it.” Bruno has had experience repairing arrow boards. He testified
that it would take one or two hours to repair the damaged board. One would straighten the
metal and put in some screws or rivets. Bruno testified that arrow boards are damaged all the
time and that flat tires are common at the company. Bruno recalled that in 2010 employee
Charles DeCarlo rolled an arrow board due to excessive speed; DeCarlo was not discharged.
When Bruno reported for his next shift after August 13 he found a write-up on the bulletin
board.4 The document was signed by Project Manager Ferrer. Although the document has
blocks to indicate whether it was the first, second or final warning, none of the blocks was
checked on this sheet. Instead, lower down on the warning sheet, two blocks were checked
indicating “substandard work” and “other offenses: willful disregard for equipment.” A
description of the infraction was included: “negligent driving and unsafe movement, extensive
monetary damage.” The consequence of further infractions was stated: “Another infraction will
result in termination.”
Bruno asked Ladd why he had been written up and Ladd replied that Ferrer had done it.
Bruno worked steadily from the date of the accident until August 25, 2010.
At 7:30 pm on August 25 Bruno attended an informal meeting in the Meadowlands Diner
with a representative of Teamsters Local 210 and two employees from a company called
Highway Technologies.5 Bruno was invited to the meeting by McClain employee Mike Alvarez.
Other McClain employees at the meeting were Daniel Brattoli, Ivan Casiano, and Alex Lopez.6
The men discussed various issues including that McClain was not paying its employees
correctly and that they had no job security and no representation. Alvarez took some Local 210
authorization cards but no cards were signed at the meeting. There was discussion about
asking other McClain employees if they were interested in a union. The next meeting was
tentatively scheduled for September 8.
The day after the August 25 meeting Frank Bruno’s cousin Dominic Bruno, also an
employee of McClain, telephoned Frank Bruno and asked what he was doing. Dominic Bruno
told Frank Bruno to leave the Union alone or he would lose his job.
Bruno did not work for McClain after August 25. He testified that except for Alex Lopez
none of the other McClain employees present at the meeting worked after they attended the
meeting with Local 210. This testimony is borne out by Respondent’s records.

4 The document is entitled “Employee Warning Notice”, but all the witnesses referred to this
type of document as a “write-up.”
5 The Teamster representative was Local 210 vice-president Bob Bellick.
6 Frank Bruno had invited other employees to the meeting but they had not attended. After
the meeting he told them what had been discussed.
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Bruno tried numerous times to telephone Project Manager Ferrer to ask why he was not
working. He eventually obtained an appointment to meet with Ferrer after Labor Day, on
September 7, 2010. Bruno tape recorded the conversation.7 Bruno asked Ferrer why he was
not getting any work from McClain.8 Ferrer said, “They think that you have two strikes against
you … for that equipment damage that happened a couple of weeks ago.” When Bruno asked
how that could be two strikes when it was one incident, Ferrer replied, “You’ve gotta talk with Al
[Ladd].” Bruno pointed out that Ferrer had written him up, not Ladd. Ferrer said, “That’s true.”
After Bruno protested that he should only get one write up for one incident and that Ladd had
said he would not be written up at all, Bruno asked if he was not working because he had two
strikes against him. Ferrer replied, “No, it’s not necessarily you don’t work because of that, Just
– Because they said to give you a pink slip so you don’t work.” Ferrer said he was told from
“Virginia. They said to give you the pink slip. Technically, since you had a CDL … you’re held
to a higher standard.” Bruno protested that he was not being paid extra for possessing a CDL.
Then Bruno asked why, if he was getting a pink slip, he was on schedule to go away the week
before.9 Ferrer said he did not know, he was trying to get Bruno on, but …. Bruno then
protested that Ferrer had put him on a schedule when Ferrer knew that Bruno was not able to
go away because he had a doctor’s appointment that could not be changed. Bruno complained
that he was laid off when half the men were getting high and when men hired very recently were
working but he was not. Ferrer advised Bruno to speak to Regional Manager Matthew
Pasquale but Bruno said that Pasquale was not around.
Next, Bruno went to speak to Equipment and Yard Supervisor Alan Ladd.10 Bruno
asked Ladd why he was written up for the arrow board incident, and apparently was charged
with two write-ups for the same incident, when Ladd had informed Bruno that he would not be
written up at all. Ladd replied that Ferrer had written the warning. Bruno protested that he
should not be charged with two write-ups for one incident and further protested that he should
not be laid off because other employees had many more write ups and some had done serious
damage. Ladd told Bruno that “Virginia went through and picked out six fucking people.
There’s six people that got laid off.” After Bruno repeated his earlier points, Ladd said, “I have
nothing to fucking do with any of this. This is Virginia. This is Virginia. Every fucking thing
that’s going on now is Virginia.” Bruno kept repeating his points about the unfairness of not
working when recent hires were still getting work and the unfairness of being held to a higher
standard but not receiving higher pay for the possession of a CDL. Bruno again asked Ladd
who laid him off and Ladd again said that it was “Virginia.” Ladd said there was a new system
that required “us to submit that schedule to Virginia, and they’re going to fucking approve it.”
After some more complaints from Bruno, Ladd said, “I’m sure the union didn’t fucking help it.”
When Bruno asked, “What union” Ladd replied, “The union meeting you guys went to. That
didn’t help it.” Bruno feigned ignorance of a union meeting and Ladd said, “Well then people are
lying. … Whoever went to the meeting. There’s another one on the eighth, right? Tomorrow?”
Bruno asked Ladd whether he was laid off because the “supposedly union meeting.” Ladd
replied, “Everything got back to Virginia.”

7 As will be seen below, Bruno tape recorded three conversations with management. At the
instant hearing, the parties agreed on the contents of the typed transcripts of the three taped
conversations and these were entered into evidence.
8 The transcript is GC Exhibit # 8b.
9 Apparently to an out of town assignment. Bruno testified that he was not actually placed
on a schedule, but he was asked whether he could go upstate to work.
10 The transcript of this conversation is GC Exhibit #8a.
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On September 13 Bruno spoke to Regional Manager Pasquale in his office.11 He asked
Pasquale why he was not working. Pasquale replied that it was “pretty much” because of the
accident and “there has not been a lot of work.” Bruno protested that there were men who had
been hired a few weeks ago who were working but that Ferrer had told him he might not work
for a few months. Pasquale said, “Possibly not.” Bruno asked whether Virginia or Pasquale
had made the decision. Pasquale replied, “It’s pretty much me.” After some discussion of
Bruno’s August 13 accident, Bruno said that Ladd told him “some other story about some kind of
union meeting, that I went to the union meeting.” Pasquale asked him, “All right. Did you go to
a union meeting?” When Bruno protested that it was not a union meeting Pasquale asked,
“What was it?” Bruno replied, “It was a bunch of guys talking” and that Ladd is “telling me that
that’s the reason why.” Pasquale affirmed this, saying, “Okay. That could play into it.” When
Bruno complained that no one was giving him answers Pasquale replied, “If you’re so jacked on
the union, go join the union.” Bruno again asked Pasquale, “So that’s why I’m not working?”
and Pasquale repeated, “Might be part of it.” Pasquale then advised Bruno to file for
unemployment. After some discussion Bruno reverted to his complaint that he was getting a
runaround when he tried to find out who made the decision that he would not work and he
raised the idea that going to hear what the union representative had to say affected his job. In
response, Pasquale asked him, “Was it a union guy?” Bruno said yes, but protested that he had
not signed a card and asked what he should do. Pasquale told him to sign up for
unemployment. Then Bruno asked Pasquale whether the decision came from him or from
Virginia, and Pasquale said it was from him.12
On cross-examination Respondent’s counsel questioned Bruno about his involvement in
certain incidents, all of which took place before the July meeting where Ladd told the employees
that as of that day the slate was wiped clean and three write-ups would mean termination. In
April 2010 Bruno filed an accident report after he moved into the right lane on the Belt Parkway
to avoid a car and some equipment was damaged by a low bridge. However, Bruno
acknowledged that the equipment should have been stowed in a different way. He was not
written up or warned for this event. On May 25, 2010 Bruno was given a “first warning” by Ladd
for bringing a truck back to the yard with branches attached to the equipment. The
consequence of further infractions was stated to be “loss of job.” Also on May 25, 2010 Bruno
was given a “second warning” by Ferrer when a customer complained that a job for which Bruno
was the team leader was set up too late and took too long. The notice said “third infraction will
result in loss of job.” Bruno explained that he was not given enough equipment and manpower
to perform that job.13 He had been told that the job involved a single lane closure, but the
customer informed Bruno that it was a double lane closure. Bruno testified that after he
complained to management about the inadequate equipment and manpower, additional trucks
and men were assigned and the men were given gas cards so that the trucks could be fueled
before being returned to the yard after the job. On the first day of the job, Bruno said, the trucks
had to be fueled on the way to the work location. Bruno also testified about some damage
reports he had filed including one where two cars involved in an altercation on Staten Island
damaged company equipment, and another report where a car ran into the back of a company
truck and damaged an arrow board. He was not given warnings for these events.

11 The transcript of this conversation begins on page 13 of GC Exhibit #8a.
12 Bruno testified that until he was let go no company official had told him that employees
who had a CDL were held to a higher standard. I note that no company witness testified that
employees had actually been informed that if they possessed a CDL they were held to a higher
standard.
13 The team leader has no input on staffing or equipment assigned to a job.
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On cross-examination, Counsel for Respondent tried to get Bruno to admit that his TCT
certification had expired. Bruno was unaware of this purported fact. I note that Respondent
introduced no evidence that any TCT certification would expire at a date certain nor did
Respondent show that Bruno’s TCT certification had in fact expired. As described above, Bruno
was reinstated pursuant to the Order of the District Court; the company has never raised an
issue with respect to his TCT.
Ivan Casiano
Ivan Casiano worked for McClain & Co. from March 10, 2009 until August 25, 2010. He
was hired as a TCT, he possesses a CDL and he is qualified to operate high rail equipment and
a bucket truck to access high locations. Casiano recalled that initially employees were not paid
correctly for prevailing rate work. Regardless of the hours they actually spent on the job, the
employees were only paid the correct prevailing rate amount for four hours; they received a
lower base rate for the rest of the work time.
After Casiano had worked as a TCT for about one year, Ladd asked Casiano to be his
helper in the yard. Casiano demurred because he was not trained in repair work, but Ladd said
he would train him. Ladd told Casiano that if he did not care for the yard repair work he could
go back to his TCT job on the road. Casiano worked for Ladd in the yard from April until the end
of June 2010 when he decided to leave the yard; Casiano believed that he was not
mechanically inclined. Casiano then returned to his TCT position.
Casiano testified that the company had about eight to eleven arrow boards. They were
in a very used condition and they were often bent, torn and scratched. Casiano helped repair
the arrow boards in the yard.
Casiano testified that there had been about 23 TCT employees at the company but that
a spate of new hires increased that number to 35. In May 2010 Casiano heard David DeCarlo,
one of the team leaders, complain to Ladd that the new hires were getting more work on
prevailing rate shifts than the men who had seniority. DeCarlo also complained that the work
was not being paid correctly. He asked Ladd if this would be going on if there were a union at
the company. A few other employees were in the yard at this time. Ladd said a union would not
do anything, just take their dues. Ladd added the comment that if the men did unionize Dan
McClain would most likely pack up and run the operation out of the Connecticut location.
Casiano also complained to Ladd that new employees were working more days a week than he
was getting and Casiano heard other employees complain to Ladd about this issue. Ladd’s
reply was always that if the employees were not happy they should seek employment
elsewhere. Brattoli told Casiano that he had made a call to Daniel McClain complaining that
senior people were not getting enough work.
Casiano testified that a mandatory employee meeting was held in the yard in July 2010.
Ladd , Ferrer and Pasquale were present. Ladd spoke for about 45 minutes. Among other
things, he said that disciplinary matters taking place prior to the date of the meeting would be “a
wash.” The slate would be wiped clean for all employees. Ladd said as of that day three write
ups would equal a termination.
Casiano attended the August 25, 2010 meeting with Local 210 at the Meadowlands
Diner. Other employees present were Michael Alvarez, Frank Bruno, Danny Brattoli, and Alex
Lopez. The follow-up meeting on September 8 did not take place because of the five
employees who attended in August, the only man still working was Alex Lopez.
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Casiano did not get any work after August 25. Although the employees had been
warned not to complain about lack of work Casiano decided to contact Ferrer after he had not
been given work for seven days. Casiano sent a text message to Ferrer complaining that he
was not working and Ferrer told him that he should apply for unemployment.
On cross-examination Casiano testified that he had an accident in the yard in May or
June 2010 while moving a bucket van during a rain storm when he ran into a tree and dented
the van. Casiano was not disciplined for this accident as he had not been negligent. On July 6,
2010 Casiano was given a written warning by Ferrer for returning a pick-up truck to the yard
with 20 cones. Ferrer wrote that the cones should have been removed when the vehicle was
returned to the yard. Casiano wrote his explanation that the cones were in the vehicle when it
was issued to him for departure and he returned it in the same condition. The warning notice
was not marked as a first, second or final warning. Ferrer added the comment that “Further
infractions can/and will result in termination.”
At the instant hearing Casiano was shown a warning notice dated 8/17/10. I note that
the year appears to have been altered. Casiano testified that he had never seen the warning
before being shown the document two weeks before the instant hearing. The document is not
marked as a first, second or final warning. The write-up was for tardiness. It stated, “The
assigned job yard time was 6 am, leave yard was 6:30. Ivan arrived 15 minutes late.” Casiano
testified that he could not have been late because the policy required him to be at the yard 15
minutes before the time for departure. If he was there at 6:15 then he was on time. The
warning states that “further infractions will result in termination.” The warning is dated at the
bottom “8/17/81” a date which is the birthday of Ferrer, one of the signatories on the notice.
Ferrer testified that he issued the warning on August 17, 2007. He also was not able to say
what time Casiano actually arrived at the yard on the day in question. I shall not give any
weight to this document.
Daniel Brattoli
Daniel Brattoli worked for Respondent from March 2009 until August 26, 2010. He holds
a TCT certification. Brattoli testified that the employees noticed their work declining from five or
six days a week to three or four days per week. Toward the end of his employment, he was
working only two days a week. The senior men discussed their displeasure with this state of
affairs. Brattoli spoke to Ladd and Ferrer many times about his lack of work. Brattoli testified
that everybody was complaining. Brattoli told his fellow employees that he intended to call
Daniel McClain. He spoke to McClain by telephone and complained about the situation. Brattoli
told McClain he was not the only employee upset about the lack of hours. McClain said it did
not sound right and that he would come up and take care of it. Brattoli reported this
conversation to his fellow employees. Brattoli left two more voice mails for Daniel McClain but
he received no response.
Brattoli attended the meeting on August 25 2010.14 The men talked about how to obtain
signed authorization cards and they discussed the benefits of unionization. According to
Brattoli, the next morning everyone at the job knew about the meeting. No employees would
sign union cards because they feared for their jobs.
On cross-examination Counsel for Respondent questioned Brattoli about a scheme in

14 Brattoli does not recall dates at all well and he was unable to place events precisely in
time.
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which a manager of Respondent extorted money from various company employees. Brattoli
stated that before March 2010 Mark Carucci was the regional manager in Lyndhurst. One day
Carucci telephoned Brattoli and told him that the company was going to drop his health
insurance because he did not have enough hours. Brattoli’s wife was pregnant at this time.
Carucci told Brattoli that he would put a week’s worth of hours on Brattoli’s record and told him
to check his bank account. When Brattoli asked whether this was a bonus, Carucci told
Casiano it was a bonus from him. The sum was $1200. Then Carucci instructed Brattoli to take
75% of the sum out of the bank and pay it to him in cash. Brattoli gave the money to Carucci.
Brattoli testified that Carucci was the regional manager; he knew that if he did not go along with
Carucci he would lose his job and his health insurance. The exercise was repeated once more
and Carucci promised it would be the last time. Brattoli did not notify anyone at the company
about this scheme because he feared losing his job and his health insurance.
After Carucci’s scheme was discovered he was discharged and prosecuted. Daniel
McClain asked Brattoli whether he knew about the checks. The company wanted all the
employees to cooperate in Carucci’s prosecution. Brattoli told McClain he had received $2400
out of which he had kicked-back the sums to Carucci. Brattoli agreed that he would have the
amount deducted from his wages to pay back the company. However, McClain eventually told
Brattoli that he had to pay back $5100. Although this was more than he had received, Brattoli
agreed to pay back this sum from his wages because it was a condition of keeping his job. By
the time of the union meeting on August 25 Brattoli had paid the company all but $1900 of the
$5100 amount. On August 26 the company asked Brattoli to drive a truck to Virginia. Brattoli
had not received sufficient notice of this trip and he could not accept the job as he had not had
adequate sleep. The trip was 12 hours down to Virginia and 12 hours back to Lyndhurst. After
this day Brattoli was called for one more job and he agreed to work, but the job was cancelled.
Brattoli testified that he was offered the work so that he could pay the $1900 he had promised to
give the company.
Brattoli asked Ladd, Ferrer and Pasquale why he was not getting any work after August
26. They said the reason was lack of work.
Brattoli got no more work offers from the company but he was still obligated to pay
McClain $1900. He spoke to Daniel McClain and the latter agreed that if Brattoli gave him
$1500 in cash they would be even. Brattoli paid the $1500 in cash but when he went to court to
have the charges against him dropped, McClain said there was still a $400 balance.15 Brattoli is
now getting this sum together to pay McClain.
Brattoli testified that about ten other employees were part of the Carucci scheme and
they all had received more money than he had. He named Luke, Chuck DeCarlo, Albee
Roman, Sean Alberti and Dave Melli as among those who had owed from $5000 to $12,000.
Brattoli said they all remained working for the company after he received no more calls to work.
I note that Daniel McClain was present in the hearing room throughout the instant
hearing and did not testify. Brattoli’s testimony is uncontradicted and I credit it.
Respondent produced a written first warning issued to Brattoli for failure to report to
work. No year is given in the date of the warning. Brattoli could not say for sure what year it
was. At first he said he “guessed” it was 2010 but then he said he would be lying if he said he
knew exactly. Respondent’s witnesses did not give any year date for this warning. I shall not

15 No details about any charges against Brattoli were entered into the record.
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consider this document. Another warning was issued to Brattoli on August 16, 2010 for failure
to perform a post trip inspection. It is not designated a first, second or final warning. Brattoli
testified that he refused to sign the notice because he had performed the post trip inspection at
the gas station while the truck was being fueled. He protested to Daniel McClain who agreed
with him and said, “That is not in the strike zone. You should not be getting a strike for doing a
post trip at a gas station.” Brattoli continued to be given work by the company after this incident.
C. Testimony of Management
Matthew Pasquale
Matthew Pasquale has been the Regional Manager in Lyndhurst since March 2010.16
Pasquale described his job as being responsible for paperwork, time sheets, credit cards and
equipment schedules. He solicits business, prepares bids and visits job sites. He oversees the
work of Joseph Ferrer and Alan Ladd.
Pasquale testified that Ferrer is responsible for preparing the work schedules of the
Lyndhurst employees. Ferrer schedules employees based on their qualifications and
experience, their ability to work at a certain work location and considering the requirements of
the particular job to which the employees are being assigned. According to Pasquale, seniority
is last on the list of criteria that are considered when making job assignments.
Pasquale recalled that in mid-August 2010 Ferrer told him that work was “curtailed” and
about a week later Ferrer and Ladd prepared a handwritten list of employees to be laid off.17
On the list were Frank Bruno, Ivan Casiano, Danny Brattoli, Mike Alvarez, Jeff Hart and Alex
Martinez. Pasquale did not make changes to the list, but he made the decision to approve it.
When approving the list, Pasquale did not ask Ferrer about the abilities, experience, skill and
length of service of the men on the list. Contrary to Pasquale’s testimony, the evidence shows
that Alex Martinez, who did not attend the union meeting, was not laid off; the company payroll
records show that he worked the weeks of August 22 and 29, the weeks of September 12, 19,
26, the weeks of October 3, 10, 17, 24 and 31, the weeks of November 7, 14 and 21 and the
weeks of December 5 and 12.
Pasquale testified that Bruno was on the layoff list because he had a number of
accidents. Pasquale said the arrow board that was flipped over in August sustained more than
minor damage and that it involved fixing not only the board itself but also a wheel and the
fender. The labor cost for the repairs was between $80 and $96 but Pasquale was not sure
how the arrow board was fixed. According to Pasquale, Bruno was not laid off because he was
involved with the Union. Pasquale testified that team leaders are generally trusted with more
responsibility by the company but he could not recall whether Bruno was a lead man. Pasquale
testified that the UB truck is highly specialized equipment but he did not know that Bruno
operated this piece of equipment. In fact, he did not know what kinds of equipment Bruno
operated. Pasquale denied that it required skill to obtain a CDL; he added that his 16 year old
daughter could get a CDL.18
Prior to the instant hearing Pasquale had given a sworn affidavit in which he said, “I

16 Pasquale testified that his predecessor was terminated because he was stealing from the
company.
17 This list was not produced herein.
18 This young lady was not present in the hearing room.
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never asked Bruno if he attended a union meeting, I never asked Bruno about any union
meeting.” Pasquale’s affidavit states that he did not discuss the reason for the layoff with Bruno
nor did he discuss the damaged arrow board. The affidavit also says that Pasquale was not
aware of any other layoffs at the company.
Pasquale testified that until he spoke to Bruno in early September 2010 he was not
aware of union organizing in New Jersey. While speaking to Bruno on that occasion Pasquale
was not aware that Bruno was making a tape recording. However, Pasquale listened to Bruno’s
tape recording of their conversation after he gave his affidavit and before the instant hearing.
Pasquale explained that he told Bruno the Union might have been part of the reason for the
layoff because he wanted to ask Ferrer whether he knew about the Union. After speaking to
Bruno, Pasquale asked Ferrer if he knew that Lyndhurst employees had attended a union
meeting.
According to Pasquale, Brattoli was placed on the list to be laid off because he had a
meltdown in the office on August 17 and used foul language to Ferrer in the presence of
women. Pasquale was not physically present when this occurred. During the incident
Pasquale was on the phone with an employee named Marissa and he heard yelling in the
background; Marissa told him that Brattoli was out of control. Pasquale asked to speak to
Brattoli and told him to leave the office immediately. Brattoli was not given a warning notice or
other discipline for this event. Pasquale testified that Brattoli was not laid off because of his
union activities.
Pasquale testified that Casiano was on the layoff list because he had an agreement with
Ladd to take over Ladd’s position in the yard. Ladd told Pasquale if that agreement did not work
out, Casiano would not be able to return to his former position in traffic control. In the event,
Casiano did not like to work in the yard. Pasquale acknowledged that after Casiano left the yard
he returned to his former duties when he was needed on a job. Pasquale denied that Casiano
was laid off because he was involved with the Union.
Joseph Ferrer
Joseph Ferrer testified that he has been the project manager in Lyndhurst since June
2010. Before that he had been a TCT working on a lane closure crew. Ferrer is responsible for
hiring, scheduling, customer service and customer relations. According to Ferrer team leaders
are the more knowledgeable, more experienced and more capable employees at the company.
Not every holder of a TCT certificate is appointed a team leader.
Ferrer said that when work was “lighter” in mid-August 2010 he put together a layoff list.
Ferrer consulted with Ladd in preparing the list. The two men reviewed criteria including
accidents, write-ups, experience, skill, availability to travel to a job and flexibility. Seniority was
not considered in choosing the employees to be laid off. Pasquale approved the list. There had
not been any layoffs before August 2010.
On direct examination by Counsel for Respondent Ferrer was asked about his tape
recorded conversation with Bruno. Ferrer stated that he told Bruno that Virginia had chosen him
for layoff because it permitted him to avoid dealing with the subject. When Ferrer told the men
an action had originated in Virginia they stopped bothering Ferrer about it. Ferrer sent Pasquale
an email dated September 7, 2010 following his conversation with Bruno alerting Pasquale to
the fact that Bruno was very upset. Ferrer maintained that Bruno was chosen for layoff because
he had more written warning notices and accidents than any other person. Concerning these
warnings, Ferrer testified about the notice of May 25, 2010 and said that Bruno left the yard later
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than scheduled and arrived late at the job. Also on May 25 the truck was returned to the yard
with tree branches on the back; it was the ultimate responsibility of the team leader to see that
debris is removed from the equipment. Referring to the August 13 warning for the damaged
arrow board, Ferrer stated that there was extensive monetary damage and the arrow board was
out of use for about one week. But Ferrer acknowledged that had never seen the damaged
arrow board and he wrote the warning notice using Ladd’s words.
Ferrer maintained that he looked at the disciplinary records of all the employees when
preparing the layoff list.
Ferrer looked at the records of employee Gabriel Scianna who did not have a CDL. On
April 1, 2009 Scianna damaged an arrow board and bumper. Ferrer knew that Scianna
was written up for failure to perform a pre-trip inspection on April 1, 2009. He knew that
Scianna was written up on January 15, 2010 for taking an unauthorized photo of an
internal company document and showing the picture to other employees. On July 6,
2010 Scianna was cited for failing to empty a vehicle as required, the same infraction for
which Casiano was warned. On August 6, 2010 Scianna committed an offense when he
failed to perform a post-trip inspection and failed to fuel his vehicle before returning to
the yard. Ferrer admitted that Scianna had more disciplinary notices than Bruno but he
said Scianna was a traffic control supervisor and the company required him for a specific
job.19
Respondent’s records establish the following:
Another employee with three write ups was Michael Ruas who was still employed as of
March 9, 2011. Ruas did not possess a CDL. He received a first warning on March 10,
2010 for failing to file an accident report and he received a second warning on the same
day for driving a company vehicle with an expired driver’s license. Ruas was again
written up by Ferrer on July 5, 2010 for failing to arrive at the yard at the correct time
when he was the team leader on a job.20
Employee Antonio Ruiz, who did not have a CDL, was written up on March 5, 2009 for
failing to check his fuel gauge and running out of gas on the way back from a job. Ferrer
gave him a warning notice with two blocks filled in on July 9, 2010 for failure to have a
customer complete paperwork correctly and for being rude to his co-worker.21
Scott Terwilliger, who did not possess a CDL, was written up on June 22, 2010 for
arriving late to the yard for a job on which he was the team leader and on July 28, 2010
for failing for report to work.22
Patrick Thornton was disciplined by Ferrer on July 6, 2010 for failing to empty his vehicle
before returning to the yard, the same infraction for which Casiano and Scianna were
cited.23

19 Scianna was laid off December 6, 2010.
20 Ruas was still employed as of the instant hearing.
21 Ruiz was still employed as of the instant hearing.
22 As of the hearing Terwilliger was still employed.
23 Thornton was laid off February 3, 2011.
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Dwayne Webster was written up on August 13, 2010 by Ferrer for failing to return his
vehicle full of fuel.24
On cross-examination, Ferrer acknowledged that Bruno was a team leader, he had a
CDL, he could operate various trucks and he could do highly skilled jobs. Bruno was one of the
more experienced workers at the company. Ferrer acknowledged that Bruno had fewer
disciplinary notices than some other employees.
Ferrer testified that he did not know Bruno was involved with a union when they spoke
on September 7, 2010. Ferrer first heard about the union when Pasquale told him about his
conversation with Bruno. Ferrer maintained that he only spoke to Ladd about the Union
meeting after the layoffs.
Ferrer testified that Brattoli was laid off because he stormed into the office “flipping out”
and demanding to know what was going on with his work. Brattoli “startled” the young ladies in
the office. According to Ferrer the problem with this was that Brattoli should have called for
permission to come in and he should not have raised his voice to Ferrer. Ferrer did not testify
that Brattoli used foul language on this occasion. On direct examination by Counsel for
Respondent, Ferrer also cited as a reason for laying off Brattoli that he had “some write-ups”
and had to be instructed in doing his job. When asked on direct examination whether Brattoli
had stormed into his office before or after his layoff, Ferrer replied, “I don’t remember.” Ferrer
further testified that he did not know how Brattoli’s written warnings compared to those of other
company employees.
Ferrer testified that he sent his email of August 30, 2010 warning employees “effective
today, no one is allowed to come up to the office” because he did not want Brattoli coming in
and flipping out. This suggests that Brattoli had confronted him that day. The date comports
with Brattoli’s testimony that after August 26 he asked Ferrer why he was not getting any more
work. Thus, it is clear that Brattoli stormed into Ferrer’s office after he was laid off.
Ferrer said Casiano was chosen for layoff because he had agreed to be a replacement
for Ladd in the yard and if he didn’t “abide it, we weren’t going to put him back into the traffic.”
However, Ferrer recalled that it did not work out for Casiano in the yard but he was indeed put
back into traffic. Casiano needed the hours and he held a CDL which “is what we needed at the
time, good to have.”
Ferrer acknowledged that after Bruno, Brattoli and Casiano were laid off because work
was slow, other employees were recalled and rehired by the company and new employees were
hired. Respondent produced a list of employees showing hire date and “release date and
reason.” Richard Lynch was hired on September 8, 2010 and laid off for lack of work on
December 22, 2010. Angelbert Garcia was hired on September 13, 2010 and laid off for lack of
work on December 6, 2010. Thomas Howard was hired on September 15, 2010 and laid off for
lack of work on December 21, 2010. Massimilliano Giglio was hired on September 22, 2010
and was still working on the date of the instant hearing. Joaquin Ferrer was hired on October
28, 2010 and was still working on the date of the hearing.25

24 Webster was still employed as of the instant hearing.
25 In a letter submitted August 3, 2011, Counsel for Respondent objects to the reference in
General Counsel’s Brief relating to hiring taking place after August 26, 2010. At the hearing I
ruled that layoffs taking place after August 26 would not be helpful in determining whether the
layoffs of Bruno, Brattoli and Casiano on August 25 and 26 were lawful. I ruled that I would
Continued
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Ferrer testified about his August 30, 2010 email to employees which referred to
telephone calls and complaints having been made to Virginia. Ferrer’s note referred to Virginia
and stated, “Apparently, a call may have been made down there and some complaints were
made about certain things that will not be mentioned so please don’t ask.” However, Ferrer
testified that he did not know at the time he wrote to the note that employees had called Virginia
to complain. Ferrer did not explain this obvious contradiction between his testimony and the
documentary evidence.
Ferrer also testified that employees complained to him about their hours of work and the
fact that they were not getting enough prevailing rate shifts.
Respondent did not call Alan Ladd herein and did not show that he was unavailable to
testify.
III. Discussion and Conclusions
A. Credibility of the Witnesses
I credit the testimony of Bruno. His descriptions of the various conversations with
management were supported by tape recordings. He was cooperative on cross-examination
and did not seek to evade any questions posed by Counsel for Respondent.
I credit the testimony of Casiano. His testimony was given in a forthright manner and he
was cooperative on cross-examination by Counsel for Respondent. His assertions about his
agreement with Ladd were not contradicted, except by hearsay evidence, as Respondent did
not call Ladd to testify herein.
I credit the testimony of Brattoli. He was forthright on cross examination and he readily
gave all the details of the extortion scheme to which he was subjected by former manager
Carucci. None of his testimony was contradicted by any witness or documentary evidence.
Before he was aware of the existence of the tape recording of his conversation with
Bruno, Pasquale gave an affidavit stating that he had not discussed the reason for the layoff
with Bruno and had not discussed the damaged arrow board. Pasquale also denied asking
Bruno whether he attended a union meeting. All of these sworn assertions are incorrect.
Moreover, the inaccurate sworn statements in Pasquale’s affidavit go to the heart of the issue
concerning Bruno’s layoff as well as the layoffs of Brattoli and Casiano. I find that Pasquale is
not a reliable or credible witness and I shall not credit his testimony.
On direct examination Ferrer maintained that Bruno was chosen for layoff because he
had more warning notices than any other employees. On cross-examination, Ferrer
acknowledged that Bruno had fewer disciplinary notices that some other employees. Ferrer
_________________________
permit testimony about a history of layoffs prior to that time and indeed Respondent’s witness
testified that there had been no layoffs. However, no question was raised about new hires after
August 25 and 26. Manifestly, hiring to replace employees allegedly laid off because work was
slow is directly relevant to the issues in the case and is consistently considered in cases of this
nature. However, if I were to consider layoffs after August 26, 2010, Respondent’s record
shows that aside from the employees at issue herein, the first layoff for lack of work took place
on November 10, 2010 and there were numerous layoffs in December 2010.
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wrote a lengthy email to employees on August 30, 2010 referencing calls to Virginia in which
employees complained about certain matters. However, when questioned about the email
Ferrer denied that he knew employees had called Virginia to complain. This contradiction is
unexplained. I conclude that Ferrer gave shifting answers and that he was not careful in his
testimony. I find that he is not a reliable witness and I shall not credit his testimony.
I also draw an adverse inference from the unexplained failure of Respondent to call Ladd
to testify herein, as well as the failure to call Daniel McClain who was present in the hearing
room throughout the trial.
B. Concerted Activities of the Employees
The evidence shows that numerous employees of Respondent were concerned that
recently hired men were getting more work than seasoned workers and the employees
expressed these concerns to management. Employees were also concerned about favoritism
in the allocation of work. The record shows that senior employees discussed these concerns
among themselves and then complained to Ladd in the yard. Bruno’s testimony that he was
present when other employees complained to Ladd establishes that the complaints were made
as a group and that they expressed general dissatisfaction about the allocation of work as
between senior men and new hires. Casiano’s uncontradicted testimony establishes that a
group of employees, including team leader DeCarlo, complained to Ladd that new hires were
getting more prevailing rate work than senior employees and that the work was not properly
compensated. Casiano’s testimony establishes that DeCarlo’s complaint cited senior
employees as a group that was disadvantaged by the assignments; DeCarlo was not only
complaining about his own job assignments. During that conversation DeCarlo wondered aloud
whether the situation would be the same if there were a union on the premises, thereby
confirming that the complaints were a matter of collective concern and action. Brattoli’s
uncontradicted testimony shows that senior employees discussed their displeasure with the
decline in their hours of work. Brattoli testified that, “Everybody was complaining.” Brattoli
informed his co-workers that he was going to call Daniel McClain in Virginia. Brattoli
complained to McClain about the lack of work for senior employees and he told McClain that he
was not the only employee upset about the lack of hours. McClain assured Brattoli that it did
not sound right and he would take care of it. Brattoli reported this conversation to his fellow
employees. Bruno also left a message for Daniel McClain voicing similar complaints.
Ferrer’s emails addressed to all employees show that management was aware that the
complaints about hours and the equitable distribution of assignments were a matter of general
concern to all employees. On July 21, 2010 Ferrer acknowledged that there were numerous
complaints about shifts and assignments. He told employees not to call him “about this guy
doing this and that guy doing that, I need this, and I need that” a clear indication that he realized
there were complaints about favoritism and unfairness. On August 30 the second email sent by
Ferrer also referenced complaints made to Virginia.
The equitable distribution of their work assignments is a matter that impacts the wages
and hours of all of Respondent’s employees. Complaints of favoritism in making assignments,
discussions among employees and bringing the matter up in meetings with management are
part of an effort to change working conditions for all those affected by what they perceive as an
unfair system. Rock Valley Trucking Co., 350 NLRB 69, 83 (2007); North Carolina License
Plate Agency #18, 346 NLRB 293 (2006). When the employees complained to Ladd, Ferrer
and McClain their actions were engaged in with other employees and on their collective
behalves. Myers Industries, 268 NLRB 493, 497(1984). It was not necessary for the employee
who complained to management to be specifically authorized in a formal agency sense to act as
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group spokesperson for group complaints. Herbert F. Darling, Inc., 287 NLRB 1356,1360
(1988).
I find that the employees who made the complaints about work assignments were
engaged in protected concerted activities.
C. Company Response to its Employees’ Protected Concerted Activities
On July 21, 2010 Ferrer addressed an email to all employees acknowledging that
employees were complaining about shifts and “who’s doing what and getting what.” With this
communication management signaled to employees its awareness that they were discussing
and complaining about decreased hours, fewer work assignments and favoritism. Ferrer made
it clear to the employees that their complaints had the ultimate effect of aggravating him and
would result in their being taken off the schedule and not receiving any more work. Thus, Ferrer
warned the employees not to call him with complaints about favoritism and decrease in hours of
work on pain of losing their jobs.
Ferrer’s email to employees on August 30, 2010 referred to complaints made directly to
headquarters in Virginia. Ferrer told employees that if they had questions about payroll or if
they had a question for him they could no longer come to the office to solve their problems, also
on pain of being taken off the schedule. Ferrer implied that he had been directed to adopt this
rule, thereby giving employees the impression that headquarters in Virginia had imposed the
new procedure as retaliation for their concerted complaints.
I find that on July 21 and August 30, 2010 Respondent threatened its employees with
loss of jobs if they continued their protected concerted activities of complaining about their work
assignments. Respondent thus violated Section 8(a)(1) of the Act.
D. Anti-Union Animus
As described above, Casiano heard DeCarlo complain to Ladd about the unfair
distribution of prevailing rate work and the fact that such work was not being paid correctly.
DeCarlo asked Ladd whether this would be going on if there were a union at the company.
Ladd told DeCarlo that if the men organized the shop Daniel McClain would most likely close
the Lyndhurst location and move the work to Connecticut. Respondent did not call Ladd; the
testimony is uncontradicted. Ladd’s statement is evidence of anti-union animus on the part of
the company.
E. Layoff/Discharge of Employees
The Respondent’s records designate Bruno, Casiano and Brattoli as having been laid off
for lack of work but Ferrer told Bruno that he had been ordered to give Bruno a pink slip. This
term is generally used when an employer discharges an employee. The complaint alleges that
the employees were discharged. The distinction between layoff and discharge is immaterial in
the instant case. The evidence shows that after they attended the union meeting on August 25,
2010 the three men did not work for Respondent up to the date of the Consent Agreement
approved by the District Court. I shall rely on the company documents and the testimony of
Respondent’s witnesses and base my decision on the evidence that the employees were laid
off.
At the outset, is is clear from Ferrer’s testimony and from Respondent’s records that
employees were recalled and hired in early and mid September at the same time that Bruno,
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Casiano and Brattoli were being told by company managers that they were laid off for lack of
work. The evidence does not support Respondent’s position that a layoff list was compiled for
the reason that work was slowing down.
Frank Bruno
Bruno did not receive any work assignments after attending the union meeting on
August 25, 2010. Ferrer told him the reason for his layoff was the equipment damage on
August 13. In an extensive conversation, Bruno kept after Ferrer to explain why he was not
working. Ferrer added that Bruno possessed a CDL and was held to a higher standard and
Virginia had instructed him to give Bruno a pink slip. Ferrer did not reference any incidents prior
to August 13 as contributing to the layoff. When Bruno confronted Ladd about being laid off for
an accident which Ladd had assured him would not lead to a written warning, Ladd confirmed to
Bruno that Virginia had picked employees to be laid off. Ladd gave one additional reason for
Bruno’s layoff. Ladd said he was sure the union did not “help it.” Ladd cited the union meeting
attended by “you guys,” thereby showing that he knew other employees had been at the
meeting. When Bruno questioned Ladd’s information about the union meeting, Ladd said if it
were not true then “people are lying.” Ladd said he knew there was another union meeting
scheduled for the next day. Bruno asked if the lay off was due to the union meeting and Ladd
replied that “everything got back to Virginia.” Pasquale confirmed to Bruno that he was laid off
because of his accident with the arrow board on August 13; he also said there was not a lot of
work. Pasquale claimed that “it was pretty much me” who made the decision not to give Bruno
any more work. When Bruno mentioned Ladd’s comment about a union meeting, Pasquale
asked whether Bruno had attended a union meeting and said of Bruno’s attendance, “that could
play into it.” After Bruno asked again if he was not working because of the union meeting,
Pasquale said it “might be part of it.” Pasquale did not deny to Bruno that his attendance at a
union meeting was one of the reasons the company was not giving Bruno any more work.
I do not credit Pasquale’s testimony that Bruno was on the layoff list because he had a
number of accidents. When Bruno confronted Pasquale right after the layoff Pasquale only
mentioned the August 13 accident with the arrow board. His comments comport with the
reasons that the other managers gave Bruno when he spoke to them right after the layoff: Ladd
only mentioned the accident with the arrow board in addition to Bruno’s attendance at the union
meeting. Similarly, I do not credit Ferrer that Bruno was chosen for layoff because of his many
prior incidents. Right after Bruno was laid off Ferrer told him he was selected because he had
two strikes due to the accident with the arrow board on August 13. Ferrer never mentioned any
other warning notices or incidents until he took the stand in the instant matter. I find that the
mention of incidents or warnings dated before August 13 was an afterthought which was added
to buttress the testimony of company witnesses.26
Ferrer and Ladd prepared the list of employees to be laid off. Pasquale testified that he
approved it. Pasquale told Bruno that he was the one who “pretty much” decided that Bruno
would not get any more work. Ladd told Bruno that the employees’ attendance at the union
meeting “did not help it” in connection with the decision to choose them for layoff. Ladd
admitted to Bruno that his attendance at the union meeting was known at headquarters in
Virginia. Ladd’s comment that “you guys” attended a meeting and that “everything got back to

26 On direct examination Ferrer maintained that Bruno was chosen for layoff because he had
more warning notices than any other employees. However, on cross-examination, Ferrer
acknowledged that Bruno had fewer disciplinary notices that some other employees.
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Virginia” shows that the identities of the employees who attended the meeting were well known
at the company. This comports with Brattoli’s testimony that the morning after the August 25
meeting, everybody at the job knew about it. Ladd emphasized to Bruno that Virginia had
selected the employees for layoff. Ferrer also told Bruno that Virginia had dictated the choice of
men for layoff. At the instant hearing, Ferrer recanted this version of events and claimed that he
mentioned Virginia only to stop Bruno from bothering him further. It is not necessary for
purposes of this decision to decide what involvement headquarters in Virginia had when Ladd
and Ferrer made up the layoff list and Pasquale approved it. It is clear that Ladd knew all about
the union meeting when he helped decide who was to be laid off. I have found that Ferrer is not
a reliable witness and I do not credit his statement that he did not know about the union meeting
until September 7 and that he only spoke to Ladd about the union after the layoffs. Further, I
have found that Pasquale is not a credible witness and I do not credit his testimony that he did
not hear about the union meeting until Bruno mentioned it on September 7. Consistent with
Ladd’s comment that “everything got back to Virginia,” I find that Respondent’s managers in
Lyndhurst and in Virginia were aware of the union meeting when the layoff list was compiled.
Further “Board case law is clear that the anti-union motivation of a supervisor will be imputed to
the decision-making official, where the supervisor has direct input into the decision.” Bruce
Packing Co., Inc., 357 NLRB No. 93 (2011).
I find that a motivating factor in selecting Bruno for layoff was his attendance at the
meeting with Local 210 on August 25, 2010. Based on my discussion below, I further find that
Bruno would not have been laid off but for his union activity. Wright Line, 251 NLRB 1083
(1980), end. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
I have found above that Respondent’s citation of Bruno’s warnings and incidents before
August 13 was an afterthought and was not considered by management in compiling the layoff
list. Further, in July 2010 Ladd had announced to the employees at a meeting attended by
Ferrer and Pasquale, that the slate would be wiped clean and that only written warnings issued
after that day would count towards discipline.27 As for Bruno’s August 13 accident with the
arrow board, his testimony was that it would take one or two hours to repair the damage. Ladd
was responsible for repairing the arrow board and would have provided the most expert and
accurate testimony of the time and cost to make the repairs, but Respondent did not call Ladd to
testify. Pasquale put the cost of the repairs between $80 and $90 but he was not sure how the
board was actually fixed. Ferrer wrote the warning to Bruno stating that the arrow board had
sustained “extensive monetary damage” but he admitted that he had never seen the damaged
board. I conclude that the repairs to the arrow board took one or two hours and cost between
$80 and $90. This is hardly the extensive monetary damage claimed by Respondent.
Comparing Bruno’s warning on August 13 to that of other employees for matters arising
after July 1, 2010, I find that on July 6 Gabriel Scianna failed to empty his vehicle and on August
6 he was warned for failing to perform a post-trip inspection and failing to fuel his vehicle. On
July 5, 2010 Michael Ruas was written up for failing to arrive at the yard on time when he was
the team leader on the job. On July 9, 2010 Antonio Ruiz was warned for failing to have the
customer complete paperwork and for being rude to a co-worker. Scott Terwilliger was written
up on July 28 for failing to report to work. Patrick Thornton was written up on July 6, for failing
to empty his vehicle. Dwayne Webster was warned on August 13 for failing to fuel his vehicle.
Unlike Bruno, Scianna, Ruas, Ruiz and Terwilliger did not possess a CDL and they were thus
less skilled and useful to the company.

27 Respondent did not furnish a date for this meeting and the employee witnesses were not
exact in placing this event. I shall assume that it took place on July 1.
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Pasquale admitted that when he approved the list of employees to be laid off he did not
consider the abilities, experience, skill and length of service of the men on the list. Pasquale did
not know that Bruno was a lead man and he did not know what kind of equipment Bruno
operated. Ferrer compiled the layoff list with Ladd. Ferrer testified that Bruno had a CDL and
could operate a variety of trucks and perform highly skilled jobs. According to Ferrer, Bruno
was one of the more experienced men at the company and he was often designated a team
leader. Ferrer said that he and Ladd reviewed criteria including accidents, write-ups,
experience, skill, availability to travel and flexibility. Ferrer did not testify how these criteria were
applied to Bruno, except by citing Bruno’s write-ups and accidents. As quoted above, the
handbook criteria list “company work requirements” as the first factor to be considered in a
layoff, but Respondent presented no testimony that this factor was considered in Bruno’s layoff.
Ferrer did not say why Bruno’s “abilities, experience, and skill”, the second handbook factor,
marked him for layoff in comparison with other employees at the company. In fact, the company
witnesses acknowledged that Bruno had more experience than most of its other employees and
that he was able to operate specialized equipment that required a high degree of skill. He was
also frequently chosen to be a team leader. Respondent presented no evidence that it
considered Bruno’s “potential for reassignment”, the third handbook criterion. As for “length of
service”, the fourth criterion listed in the handbook, the record shows that Bruno was more
senior than employees who were not laid off until November or December 2010. Although the
handbook requires length of service to be considered in layoffs Ferrer testified that seniority was
not considered in choosing the employees to be laid off. Thus, it is clear that in deciding to lay
off Bruno, Respondent did not follow the procedure set forth in the company handbook for
selecting employees to be laid off.
Given the Respondent’s anti-union animus, the Respondent’s knowledge of Bruno’s
union activities, Ladd’s acknowledgment to Bruno that his attendance at the union meeting did
not help with respect to the layoff, the fact that Bruno was laid off immediately after the union
meeting, Pasquale’s statement Bruno’s union activities could be part of the reason he was laid
off, the weakness of Respondent’s stated reasons for laying off Bruno and its failure to follow its
own published procedure for layoffs, I find that Bruno would not have been chosen for layoff but
for his attendance at a meeting with Local 210 on August 25, 2010. Respondent violated
section 8(a)(3) and (1) of the Act by its layoff of Bruno.
Ivan Casiano
Casiano testified that when he became Ladd’s helper in the yard Ladd told him that if he
did not care for the yard repair work he could go back to his TCT job on the road. After working
with Ladd from April to June 2010, Casiano decided that he was not suited for the work and he
returned to his old position. Ladd was not called to testify about his agreement with Casiano. I
have found above that Casiano was a credible witness.
Pasquale testified that Casiano was laid off because he had an agreement to take over
Ladd’s position in the yard and the agreement was that Casiano could not return to his former
position in traffic control. Pasquale acknowledged that after Casiano left the yard he was given
work in traffic control because the company needed him. Pasquale did not explain how this
squared with his assertion that Casiano would not be allowed to go back to his old job. I have
found above that Pasquale was not a reliable witness and I shall not credit this testimony.
Ferrer’s testimony tracked that of Pasquale. He added that when Casiano was put back into
traffic control it was because Casiano needed the hours and he had a CDL which was what the
company needed. Ferrer did not explain how his testimony squared with his assertion that
Casiano could not return to his old position. I have found that Ferrer was not a reliable witness
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and I do not credit his testimony about the purported agreement between Ladd and Casiano.
I find that Ladd and Casiano had agreed that Casiano could return to his old position in
traffic control if he did not like the yard work. Thus, I find that the Respondent’s assertion that
Casiano was laid off because he did not want to continue as Ladd’s helper in the yard is a
pretext. I have found above that Respondent had anti-union animus and that Respondent was
aware of Casiano’s attendance at the meeting with Local 210 on August 25. I have quoted
above Ladd’s statement that the employees’ attendance at the union meeting didn’t help in the
layoff selection and Pasquale’s statement that Bruno’s attendance at the union meeting could
be part of the reason he was laid off. Further, Casiano was laid off immediately after he
attended the union meeting. I find that Respondent selected Casiano for layoff because he
attended a meeting with Local 210. Respondent thus violated Section 8(a)(3) and (1) of the Act.
Daniel Brattoli
Ferrer testified that Brattoli was laid off because he stormed into the office demanding to
know what was going on with his work. According to Ferrer this “startled” the young women
who worked in the office. Additionally, Ferrer cited “some write-ups” and asserted that Brattoli
had to be instructed about his work. Significantly, Ferrer also testified that he could not recall
whether Brattoli stormed into his office before or after his layoff. And Ferrer stated that he did
not know how Brattoli’s written warnings compared with those of other employees who were not
laid off.
As shown above, the documentary evidence shows that Ferrer issued many written
warnings but Brattoli was not issued a written warning for the incident in Ferrer’s office and
Respondent offered no explanation for this omission. The failure to write up Brattoli for the
incident in Ferrer’s office confirms that it took place after Brattoli was laid off.
I have found that the incident in Ferrer’s office took place after Brattoli was laid off and
so it could not have been the cause of his layoff. Also as explained above, Respondent
produced one undated disciplinary notice for Brattoli and I will not consider that document.
According to Brattoli the other written warning was countermanded by Daniel McClain;
Respondent did not produce any testimony to contradict this assertion. Thus, there were no
valid write-ups outstanding against Brattoli when he was laid off. Finally, Ferrer did not offer
any details about having to instruct Brattoli to do his work and I shall not credit this vague and
unsubstantiated assertion.
Pasquale testified that Brattoli was laid off because he had a meltdown in the office on
August 17 and used foul language in the presence of women. Pasquale was not present when
this occurred. I have found above that Pasquale is not a reliable witness and I do not credit
Pasquale that it took place on August 17, 2010. Further, when Brattoli asked Pasquale, Ferrer
and Ladd why he was laid off, not one of them mentioned an incident in Ferrer’s office. I find
that Brattoli’s conduct in Ferrer’s office was a pretext used by Respondent to justify Brattoli’s
layoff after the fact.
Based on Respondent’s anti-union animus, its knowledge that Brattoli attended the
meeting with Local 210 on August 25, Ladd’s statement that the employees’ attendance at the
meeting did not help them, the fact that Brattoli was laid off immediately after the union meeting
and Pasquale’s statement to Bruno that his attendance at the meeting could be part of the
reason he was laid off, I find that Respondent selected Brattoli for layoff because he attended a
union meeting. Thus, I find that Respondent violated Section 8(a)(3) and (1) by laying off
Brattoli.
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F. Coercive Interrogation and Impression of Surveillance
I do not find that Bruno, Brattoli and Casiano were open union supporters at the
Lyndhurst facility. Bruno testified that a number of employees had been asked to attend the
meeting but there is no evidence that this occurred at the yard. There is no evidence that the
men openly discussed the union on the job or that they expressed interest in the union when in
the presence of their supervisors or managers.
On September 7, 2010 Ladd told Bruno that he had been laid off and that going to the
union meeting did not help it with respect to the layoff. Ladd told Bruno that he knew employees
had attended a union meeting and he asked, “There’s another one [union meeting] on the
eighth, right? Tomorrow?” Ladd’s statement created the impression that the employees’
protected concerted activities were under surveillance.
Further, Ladd’s question as to when the next meeting would be held was coercive.
Bruno was loathe to admit that he attended a union meeting. The context of the conversation
was a protest by Bruno that he was not being given any work; Ladd asked about the union
meeting right after informing Bruno that going to a union meeting did not help him with respect
to his layoff. Under all the circumstances, I find that Respondent violated Section 8(a)(1) by
Ladd’s coercive interrogation of Bruno. Demco New York Corp., 337 NLRB 850 (2002)
On September 13, 2010 Bruno asked Pasquale why he had been laid off and Pasquale
told Bruno he had selected him for layoff. When Bruno mentioned that Ladd had attributed the
layoff to “some story” about attendance at a union meeting, Pasquale asked, “All right. Did you
go to a union meeting?” Pasquale told Bruno that the union meeting might be part of the reason
he was selected for layoff. After Bruno protested that it was not a union meeting, Pasquale
asked, “What was it?” Later in the conversation Pasquale asked about the representative at the
meeting, “Was it a union guy?” Under all the circumstances, I find that Pasquale’s questioning
was coercive. Pasquale is the highest management representative in Lyndhurst. He was
discussing Bruno’s layoff and he confirmed to Bruno that attending a union meeting could be
part of the reason he was laid off. Pasquale’s questions, interspersed with the information that
involvement with the union could lead to loss of work, amounted to a coercive interrogation.
Demco, supra.
Conclusions of Law
1. By laying off Frank Bruno, Ivan Casiano and Daniel Brattoli because they engaged in
union activities, Respondent violated Section 8(a)(3) and (1) of the Act.
2. By threatening its employees with loss of work if they complained concertedly about
the distribution of work assignments, Respondent violated Section 8(a)(1) of the Act.
3. By creating the impression that its employees’ union activities were under
surveillance, Respondent violated section 8(a)(1) of the Act.
4. By coercively interrogating its employees about their union activities, Respondent
violated section 8(a)(1) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
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that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily laid off employees, it must offer them
reinstatement and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of layoff to date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended28
ORDER
The Respondent, McClain & Co., Inc, Lyndhurst, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for supporting
Teamsters Local 210, International Brotherhood of Teamsters, or any other union.
(b) Threatening employees with loss of work if they complain concertedly about the
distribution of work assignments.
(c) Creating the impression that its employees’ union activities are under surveillance.
(d) Coercively interrogating any employee about union support or union activities.
(e) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Frank Bruno, Ivan Casiano
and Daniel Brattoli 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.
(b) Make Frank Bruno, Ivan Casiano and Daniel Brattoli 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.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful layoffs, and within 3 days thereafter notify the employees in writing

28 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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that this has been done and that the layoffs will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Lyndhurst, New
Jersey, copies of the attached notice marked “Appendix.”29 Copies of the notice, on forms
provided by the Regional Director for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In addition to physical
posting of paper notices, notices shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since July 21, 2010.
(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.
Dated, Washington, D.C., October 17, 2011.
____________________
Eleanor MacDonald
Administrative Law Judge

29 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–40–11
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT select you for layoff or otherwise discriminate against any of you for supporting
Teamsters Local 210, International Brotherhood of Teamsters, or any other union.
WE WILL NOT threaten you with loss of work if you complain concertedly about the distribution
of work assignments
WE WILL NOT create the impression that your union activities are under surveillance.
WE WILL NOT coercively question you about your union support or activities.
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, within 14 days from the date of this Order, offer Frank Bruno, Ivan Casiano and
Daniel Brattoli 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.
WE WILL make Frank Bruno, Ivan Casiano and Daniel Brattoli whole for any loss of earnings
and other benefits resulting from their discharge, less any net interim earnings, plus interest.
JD(NY)–40–11
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful layoffs of Frank Bruno, Ivan Casiano and Daniel Brattoli, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has been done and that the layoffs will not be
used against them in any way.
McClain & Co.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 973-645-3784.