M&R Insulation Systems, LLC

National Labor Relations Board - Administrative Judge Opinions

Oct 20, 2011

04-CA-037864 (N.L.R.B. Oct. 20, 2011)

JD-63-11
Newtown, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
M&R INSULATION SYSTEMS, LLC
and Case No. 4-CA-37864
INTERNATIONAL ASSOCIATION OF HEAT
& FROST INSULATORS & ALLIED
WORKERS, LOCAL NO. 23 HARRISBURG
PA, AFL-CIO
David Faye, Esq., Counsel for Acting General Counsel.
Walter H. Flamm, Esq., Counsel for the Respondent.
DECISION
Statement of the Case
GEORGE ALEMÁN, Administrative Law Judge. This case was tried in Philadelphia, PA
on July 14, 2011, pursuant to a Complaint and Notice of Hearing issued on March 31, 2011,1 by
the Regional Director for Region 4 of the National Labor Relations Board (the Board), against
M&R Insulation Systems, LLC (the Respondent), alleging it had violated Section 8(a)(1), (3),
and (4) of the National Labor Relations Act (the Act).
Specifically, the complaint alleges that on or about September 10, 2010, the Respondent
unlawfully ordered alleged discriminatee and Union organizer, William B. McGee, to leave its
premises, threatened to call the police to have him removed, threatened McGee’s safety and
the safety of his family, and, thereafter, called the police on McGee because the latter had
previously filed unfair labor practice charges against it. In a timely-filed answer to the complaint,
the Respondent denies engaging in any unlawful conduct.
All parties at the hearing were afforded a full and fair opportunity to be heard, to present
oral and written evidence, to examine and cross-examine witnesses, and to argue orally on the
record. On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by Counsel for the General Counsel and the Respondent, I
make the following2

1 The unfair labor practice charge underlying the complaint was filed on December 16, 2010,
by International Association of Heat & Frost Insulators & Allied Workers, Local No. 23,
Harrisburg Pa, AFL-CIO (the Union).
2 Counsel for the General Counsel has also filed an unopposed Motion to Correct
Transcript, to correct certain grammatical and other inaccuracies in the record. As the Motion is
unopposed, the Motion to Correct Transcript is hereby granted.
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Findings of Fact
I. Jurisdiction
The Respondent, a Pennsylvania limited liability company with an office at 2060
Silverwood Drive in Newtown, PA, is engaged as an insulation contractor in the construction
industry. During the past calendar year, the Respondent, in the course and conduct of its
business operations, performed services valued in excess of $50,000 outside of the
Commonwealth of Pennsylvania. The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Factual background
The Respondent is owned by Marilyn DaBronzo (herein M. DaBronzo), who also serves
as its president. Her husband, Anthony “Rocky” DaBronzo (herein DaBronzo), serves as
Respondent’s project manager and its estimator. Respondent’s Newtown, PA office is situated
in the DeBranzo home. Its normal business hours are from 7:00 a.m.-5:00 p.m. Alleged
discriminatee McGee began working as an organizer with the Union in 2006, and became its
vice-president in July, 2009. On September 5, 2008, he applied for and was hired by
Respondent as a mechanical insulator until October 17, 2008, when he was laid off for what he
claims were his activities as a covert “salt” (TR. 13).3 He was thereafter rehired for just one day
on December 31, 2008. He worked seven hours that day, and claims he was then laid off due
to a lack of work. McGee testified that the Union has, since July 2008, been attempting to
organize Respondent’s employees.
The record reflects that sometime in late 2008, the Union filed several unfair labor
practice charges which led to the issuance of a consolidated complaint against the Respondent
on February 17, 2009. The parties thereafter entered into an informal settlement agreement
resolving the allegations contained in said consolidated complaint, with full compliance of the
terms agreement being achieved by August 2009. As a result of the settlement, McGee
received backpay from Respondent totaling around $20,000 before deductions. (TR. 34).
McGee testified that, on November 2, 2009, he faxed a copy of his resumé with a cover
letter addressed to Respondent’s president, M. DaBranzo, seeking employment. (GC Exh. 2).
Both M. DaBronzo and DaBronzo denied ever receiving or seeing McGee’s November 2, 2009
letter and resumé prior to the hearing.
The incident giving rise to the complaint allegations occurred on September 10, when
McGee paid a visit to Respondent’s home office to, he claims, “refresh” his job application,
presumably a reference to the November 2, 2009 letter and resumé he faxed to Respondent.

3 Salts are "individuals, paid or unpaid, who apply for work with a nonunion employer in
furtherance of a salting campaign." A salting campaign, in turn, is defined as a campaign in
which a union sends its member(s) to an unorganized jobsite "to obtain employment and then
organize the employees.” Fluor Daniel, Inc., 353 NLRB No. 15, fn. 10 (2008); Tualatin Electric,
Inc., 312 NLRB 129, 132 at fn. 3 (1993).
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He arrived there at around 1 p.m., rang the doorbell, and was met by DaBronzo. What
happened next is the subject of disagreement between McGee and DaBronzo.
McGee’s account is that when DaBronzo opened the door, the latter stepped outside
and closed the door behind him. McGee told DaBronzo that he wanted to speak with
Respondent’s owner, M. DaBronzo, and that, before explaining that he was there to refresh his
application, DaBronzo, in a very excited manner and seemingly upset, told him, “I can’t fucking
believe you came here, you got balls to come here, You got the balls to come here, you got
balls – you got to be fucking kidding me, you got the balls to come here after you and your
family stole money from me, I want you off this property right now.” (Tr. 25). McGee claims that
as he turned around and began walking away, DaBronzo told him in a loud and hurried voice
that he was going to call the police. McGee told DaBronzo that he could do so if he wished, but
that he was there simply to “refresh” his application. McGee then resumed heading down
Respondent’s driveway to his car when he heard DaBronzo remark, “You better watch your
back – you better watch your wife and children, there’s nowhere you can hide.” DaBronzo,
McGee claims, went on to say that he (McGee) “should be in a ditch right now, you shouldn’t
even be standing right now.”
McGee recalls seeing M. DaBronzo come out of the house towards the end of this
encounter and ask DaBronzo if he was Bill McGee. DaBronzo answered it was and, directing
himself at McGee, told the latter to watch his back and his wife and family. At that point, McGee
continued walking toward his car but heard DaBronzo say, in a loud excited voice, “You better
hear me.!” McGee recalls hearing M. DaBronzo tell her husband that he could not say those
things out in public, and urged him to come into house. DaBronzo, however, repeated his
refrain that McGee had “balls coming here,” that McGee had come a long way, and that if he,
DaBronzo, received “one piece of mail” from McGee, the latter and his wife and children would
be dead. McGee then told DaBronzo to have good day, turned, and continued heading towards
his car. (Tr. 26-27, 29). McGee admits he did not call Respondent’s office prior to the visit, and
denies using the “F bomb” during this incident. According to McGee, the entire incident lasted
some five minutes.
DaBronzo, as noted, had a somewhat different recollection of what transpired between
him and McGee that day. (TR 55). According to DaBronzo, at around 1 pm on September 10,
his doorbell rang and, when he answered it, he encountered McGee who offered him a business
card and stated he was there on a marketing campaign. DaBronzo, admittedly “irate” at seeing
McGee, recalls telling McGee that he had some “fucking nerve” being there, that he had no
business being there, and directed McGee to immediately get off his property. (TR. 60). He
further recalled saying to McGee, as the latter turned and began walking away, that he should
be sure to tell his wife and kids that he (McGee) had stolen money from M&R Insulation.
DaBronzo remembered repeating this same remark to McGee several times as the latter
continued walking away towards his car. DaBronzo claims that at one point, McGee turned and
said “fuck you” to DaBronzo, patted himself on the back as if congratulating himself for having
said it, and then continue on to his car and drive away. (TR. 57-58).
DaBronzo claims that his remark to McGee about the latter having stolen money from
M&R Insulation had to do with McGee’s poor performance during his brief employment with
Respondent. Thus, asked to explain what he meant when he accused McGee during this
incident of stealing, DaBronzo answered, “What I’m referring to is, any employee who works for
me, who shows up late, leaves early, does a horrible job as an insulator, doesn’t call his time in,
or does call his time in for hours not worked, or he’s in a lunch shop somewhere one o’clock in
the afternoon because he’s tired and exhausted and calls his time in for hours -- and told me he
worked that day, that’s stealing.” (TR. 58).
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To support his claim that McGee was a slow or horrible worker, DaBronzo referenced
complaints he purportedly received from employees about McGee being a slow worker and
“deliberately dragging his feet.” DaBronzo, however, never identified who these employees
were that complained to him, nor were any of these unnamed and unidentified employees called
as witnesses to corroborate his account. DaBronzo also accused McGee of having “sabotaged”
a job Respondent was doing at an elementary school in Allentown, PA. He claims that McGee
was identified by customers as the one who had been working at the jobsite at the time, and
that Respondent had go back to the site and redo the work. Again, DaBronzo provided no
specifics regarding this incident. Thus, he did not identify the nature of work done at the site or
the customers who complained to him about McGee’s work, nor how the work had been
“sabotaged” by McGee. (TR. 77-78).
As to his admission of having accused McGee, during the September 10, encounter, of
stealing from the Company, DaBronzo denied that the accusation was in any way related to the
$20,000, which he characterized as a “fine” (TR. 59), the Respondent paid out to McGee as part
of the NLRB settlement, and also denied threatening McGee or his family with physical harm
during this encounter. DaBronzo does claim that McGee used the “F-bomb” during their
exchanges, and believes that McGee came to his home to instigate some incident and to harass
them. He explained that McGee had “harassed our property in the past, hired private detectives
to sit outside our home; monitored our phone calls; followed my wife and children;[and]
threatened, along with other business agents, our firm because we are not a union company.”
(TR. 61). DaBronzo, however, never claimed that McGee had, at any time during the
September 10; incident threatened him, his wife, family, or property. Rather, DaBronzo’s
version reflects that McGee simply turned, cursed at him, and then patted himself on the back.
DaBronzo’s very general claim that, in the past, he and his family had been harassed in
the above-described manner by McGee, is, like his claim that McGee had been a poor
employee who stole from Respondent, unsubstantiated and strikes me as purely self-serving.
DaBronzo provided no specifics regarding these purported incidents of harassment and threats
by McGee and/or other union agents. Thus, there is no evidence to indicate when or how often
these incidents may have occurred, which other Union organizers may have been involved in
these incidents, and whether or not the police were called. Given rather serious nature of these
alleged incidents as described by DaBronzo, which included harassment of his property, and
the following of his wife and children, and the monitoring of his phone calls, one would
reasonably have expected DaBronzo to report these rather troubling, possibly unlawful,
incidents to the police. Yet, there is no evidence to indicate, nor does DaBronzo claim, that he
did so. Notably, M. DaBronzo, who also testified on Respondent’s behalf, made no mention in
her testimony of McGee ever following her and her children, of her house or business calls
being monitored by McGee, or of being threatened by McGee. She did admit that the police
were never called during any of these alleged past incidents. (TR. 90).
M. DaBronzo also provided some testimony regarding the September 10, incident. She
recalls hearing the doorbell ring at her home, and following DaBronzo to the door. When the
latter opened the door, she looked out and noticed McGee standing there, but was not quite
sure who he was. She asked DaBronzo if McGee was the person who had previously worked
for Respondent, but before receiving an answer, she observed DaBronzo and McGee “going off
on their own like a tangent.” She contends she immediately told DaBronzo to “shut the door”
because McGee made her nervous and scared her. M. DaBronzo explained that she was
apprehensive because she runs her business out of her home, and has small children living
there. She further explained that there are, at times, suspicious cars on the side streets, that
there might be other people “on the site,” and that she did not think McGee had the courage to
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come to the house by himself, and felt McGee’s visit was “a setup.” She purportedly believed
that there were others around associated with McGee who were there to “do mean things.” (TR.
81-82). She again instructed DaBronzo to shut the door.
M. DaBronzo claims DaBronzo told her that McGee was there as part of some marketing
campaign, and believes she heard DaBronzo say to McGee, “You have a lot of nerve coming
here, you know; do your wife and kids know you’re a liar and a cheat, and a thief?” She recalled
telling DaBronzo again to shut the door, and heard each say to the other, “fuck you” during this
verbal altercation. The entire incident, M. DaBronzo contends, lasted no more than 35 seconds.
She claims that soon after the incident, she and DaBronzo looked out the window to see if
McGee’s car was still around, explaining that she did not know for sure if “they’re around,”
presumably referring to McGee and others, and that if they were, it would be a “precursor to
something bad happening.” It was at this point, she contends, that she called the police to
report the incident, and to let them know what happened because there purportedly was a
history of things happening at her home.4 A police report was prepared by a police officer,
Kenneth Stinson, and has been received into evidence as GC Exh. 3. The report reflects that
McGee was not present when Stinson arrived, and that M. DaBronzo complained to Stinson that
McGee “began harassing her” when he arrived at the DaBronzos’ home/office. According to the
report, Stinson called McGee and left a message in his voice mail stating that McGee’s
presence at the DaBronzo home was not welcomed. McGee acknowledged receiving such a
message from a police officer.
Asked to explain what she meant by a “history of things,” M. DaBronzo described how
McGee had misrepresented himself when he was first hired, by telling her about some of his
personal family problems, and how, after M. DaBronzo mentioned, during the hiring process,
that her Company was a non-union operation, McGee replied that his wife was also against
unions. M. DaBronzo claims that this was the first time McGee had come to her house but that,
because she had had prior court dealings, with McGee, presumably referring to the prior settled
NLRB matter, she knew that McGee did not visit the house for “friendly reasons.” She
expressed her view that McGee’s purpose in coming to her house was to cause her Company
further problems with the NLRB, and to try to cause the Company financial hardship. (TR. 90).
While portraying herself as sympathetic to, and favoring, unions in general, M. DaBronzo
testified how one particular union, Local 89, with which she had established a collective
bargaining relationship, had abrogated its contract and relationship with the Respondent,
causing the Respondent to lose customers when the latter refused to do business with a
nonunion firm. M. DaBronzo explained that Local 89’s decision to abrogate its relationship with
the Respondent adversely and detrimentally affected the Respondent’s business operations.
(TR. 95-96).

4 The police report, in evidence as GC Exh. 3, contains, in quotes, a statement made by M.
DaBronzo to the police officer who responded, that McGee “began harassing her” on his arrival
at Respondent’s office. M. DaBronzo, it should be noted, never testified to being harassed by
McGee at any time during the September 10, 35-second, incident. Nor did DaBronzo ever
claim, in his version of the incident, to having heard or seen McGee “harassing” M. DaBronzo at
any time during his visit. In fact, DaBronzo admitted that McGee never addressed himself to M.
DaBronzo. (TR. 65). The conspicuous absence of any mention by M. DaBronzo or her
husband, DaBronzo, in their respective sworn testimony, that McGee “harassed” anyone during
his visit, leads me to believe that M. DaBronzo was not being truthful in reporting to the police
officer that she was “harassed” by McGee during this incident.
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M. DaBronzo admitted she did not care for and, indeed, disliked McGee, but contends
she felt this way not because of McGee’s affiliation with the Union, but rather because he had
“lied, cheated, and stole” from Respondent, and “did not perform the work he was hired to
perform.” (TR. 98). She described McGee as a “liar,” and, by way of illustration, described one
particular incident involving McGee which M. DaBronzo claimed was the “most egregious
incident” she had with the former. (TR. 86).
The incident, according to M. DaBronzo, began when she received a call late one night
from McGee from the latter’s home claiming that there were some union guys outside his house
and he did not know what to do. DaBronzo contends she told McGee that he did not have to
talk to the them if he did not want to, and that if they were making him uncomfortable, he could
call the police or “911”. McGee, she contends, abruptly told her he had to go and hung up the
phone. M. DaBronzo claims she tried to reach McGee again, and then expressed to her
husband, DaBronzo, that there might be trouble at McGee’s house, that the union guys might be
harassing him, that she was afraid McGee might be in trouble, and proceeded to call “911” and
gave them McGee’s address which was some 70-80 miles away. She subsequently learned
that McGee, in fact, was a union organizer, that the entire incident was apparently a joke of
some sort, and that McGee had “lied” and misrepresented himself to her, which she felt was a
very mean thing for McGee to do. (TR. 87).5
DaBronzo, with whom M. DaBronzo purportedly discussed the incident soon after
McGee allegedly hung up the phone, was not asked about this incident either during his direct
examination or on rebuttal. Nor was McGee questioned about this alleged incident during his
examination. DaBronzo’s claim that such an incident occurred, therefore, stands
uncorroborated.
B. Credibility resolutions
There is no disputing, given the above-described testimony, that an incident occurred in
front of the DaBronzos’ house/office on September 10, between DaBronzo and McGee, with
some minimal involvement by M. DaBronzo. However, there is, as noted, disagreement as to
what was said between DaBronzo and McGee during this brief encounter. On whole, I found
McGee’s version of events to be more credible and reliable than that proffered by DaBronzo and
his wife, M. DaBronzo. Several factors lead me accept McGee’s account over that provided by
the DaBronzos.
First, it is plainly evident, from their testimony and demeanor on the witness stand, that
DaBronzo and M. DaBronzo both harbored a deep-seated resentment, animosity, and hostility
towards McGee. DaBronzo readily admitted becoming “irate” just from seeing McGee at his

5 M. DaBronzo also described an incident, soon after McGee began working, when McGee
purportedly failed to report for work on Monday and Tuesday, and did not call in to explain his
absence. She contends DaBronzo tried reaching McGee during those two days, was unable to
do so, but did reach him on Wednesday wherein McGee told him his father was “gravely ill.”
DaBronzo told McGee not to be concerned, that he stood by McGee, and that the latter should
take care of his family first. Neither DaBronzo nor McGee were questioned about this incident.
Assuming, arguendo, that this incident, and the exchange between M. DaBronzo and McGee, in
fact occurred, there is no indication that McGee was not being truthful with the DaBronzos in
explaining his absence to them. To the contrary, M. DaBronzo’s account suggests that
DaBronzo was fine with the explanation provided by McGee and encouraged him to “take care
of his family first.” (TR. 85).
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front door on September 10, without knowing, or bothering first to ascertain, why McGee was
there in the first place. M. DaBronzo admitted during her testimony that she could not stand to
see or even look at McGee, and did not even want to know him. Both described McGee as a
liar, cheat, and a thief who stole from them, and attributed their dislike for McGee to what they
claim was his poor work performance while employed by Respondent. According to DaBronzo,
it was McGee’s poor work performance, and his alleged theft of service, e.g., receiving pay for
hours not worked, which led him, during the September 10, incident, to, among other things,
accuse McGee of being a thief. DaBronzo’s explanation finds no support in the record and is
simply not credible.
Thus, there is no evidence, other than the DaBronzos’ rather self-serving testimony,
which I find to be tainted by their extreme dislike of McGee, to show that McGee was, in fact, a
slow and poor performer during his brief employment tenure with Respondent. As noted, none
of the unnamed employees who purportedly complained to DaBronzo about McGee’s slow work
were called to corroborate his claim. Nor was documentary evidence, such as warnings,
disciplinary write-ups, time and attendance/tardiness records, produced by the Respondent to
substantiate the DaBronzos’ description and characterization of McGee as a poor or lackluster
employee, or to confirm their claim that McGee had somehow “stolen” from them by seeking
and obtaining payment for hours not worked. No claim has been made here by the Respondent
that it does not prepare, issue or maintain any such disciplinary, or time and
attendance/tardiness, records on employees.
McGee, not surprisingly, and in my view credibly, denied the DaBronzos’ joint
description of him as a poor employee. McGee, in fact, testified that DaBronzo had, on several
occasions, praised his work performance. Thus, he recalled one time, while working at a South
Mountain Middle School jobsite, receiving a phone call from DaBronzo and being told by
DaBronzo during that conversation that he was doing a good job. On another occasion, while at
the same jobsite, DaBronzo complimented McGee, as he handed him his paycheck, on doing
“one hell of a job.” McGee further recalled that, on a different occasion, when he asked
DeBranzo for a day off, the latter told McGee not to worry, that his job “was secure with us.”
Notably, DaBronzo did not expressly deny telling McGee that his job was “secure,”
explaining that this sounded like something he would say to his employees. As to the
comments about McGee doing a good job attributed by the latter to DaBronzo while at the
South Mountain Middle School jobsite, DaBronzo did not out rightly deny making them, stating
simply that he could not recall whether or not he made them. McGee expressly denied having
had a poor attendance record, and insisted that he always called in when instructed to do so.
(TR. 111).
I found McGee’s more detailed and unchallenged description of the compliments he
received from DaBronzo regarding his work to be more believable and credible. His testimony
stands in sharp contrast to the vague, very general, and unsubstantiated claims made by the
DaBronzos regarding McGee’s work performance. Accordingly, DaBronzo’s proffered
explanation at the hearing for why he accused McGee of being a thief during the September 10,
incident, is rejected as not credible. No credible testimonial or other evidence was produced by
the Respondent to substantiate the DaBronzos’ claim that McGee stole money from
Respondent, or that McGee was a bad or slow employee. In fact, the Respondent’s willingness
to rehire McGee several months later for one day lays bare Respondent’s and the DaBronzos’
claim of McGee as a poor worker, for it is inconceivable that the Respondent would be inclined
to rehire, even for one day, an employee who, as claimed by DaBronzo, allegedly “stole” money
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from Respondent, and “sabotaged” a work site.6
Having credited McGee’s account of the September 10, incident over the less reliable
and untrustworthy versions proffered by the DaBronzos, I find, as testified to by McGee, that he,
indeed, visited Respondent’s office to “refresh” or update his employment application, and that,
on seeing and recognizing McGee as a former employee and the one responsible for the prior
NLRB charges filed against Respondent, DaBronzo immediately ordered him off the property
without bothering to ascertain the reason for McGee’s visit, and threatened to call the police on
McGee to have him removed. I further find, consistent with McGee’s credited account, that
DaBronzo also threatened McGee and his family with unspecified harm by telling McGee that he
should watch his back and should also watch his wife and children, that if he, DaBronzo,
received one piece of mail from McGee, the latter and his wife and children would be dead, and
that McGee had no place to hide and that McGee should already be dead in a ditch and not be
standing right now.
With these findings in mind, I turn next to the complaint allegations that the above
remarks directed at McGee were unlawful.
C. Discussion
1. The Section 8(a)(1) allegations
The complaint, as noted, alleges, and I agree and find, that the Respondent violated
Section 8(a)(1) of the Act when DaBronzo ordered McGee to leave Respondent’s premises
during the September 10, incident, when he threatened to call police to have McGee removed,
and when he threatened McGee and his family with physical harm.
Section 8(a)(1) of the Act makes it unlawful for an employer “to interfere with, restrain, or
coerce” employees in the exercise of the rights guaranteed them in section 7. The test for
interference, restraint, or coercion is an objective one, and depends on whether “the employer
engaged in conduct which would reasonably have a tendency to interfere with the free exercise
of employee rights under the Act.” Santa Barbara New-Press, 357 NLRB No. 51, slip op. at 25
(2011); Multi-Ad Services, Inc., 331 NLRB 1226, 1227-1228 (2000); Westwood Health Care
Center, 330 NLRB 935, 949 (2000).
Here, DaBronzo’s threat to call the police on McGee if he did not leave the premises
clearly interfered with, and would reasonably have tended to restrain and coerce, McGee in the
exercise of his Section 7 right to apply for re-employment with Respondent. As a former
employee and applicant for renewed employment with Respondent, McGee enjoyed the same
protections afforded employees under Section 7 of the Act. Kenmore Electric Company, 355
NLRB No. 173, slip op. at 4 (2010). While the Respondent contends that McGee’s intent on
arriving at its facility on September 10, was to cause problems and to instigate an incident, and
that DaBronzo’s comments were prompted by McGee’s poor performance and alleged theft
while employed by Respondent, no credible evidence was produced by Respondent to show
that McGee’s purpose in going to Respondent’s office that day was anything other than to
“refresh” his job application.

6 DaBronzo sought to explain away his decision to rehire McGee on December 31, by
claiming he was simply following instructions from his attorney who advised him to rehire
McGee in order to limit the Respondent’s backpay liability. He nevertheless admitted that he
was under no legal obligation to do so.
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McGee, as noted, had previously worked for Respondent and had faxed a letter of
interest in employment, with his resume, to Respondent several months earlier. I am convinced
that McGee, having received no response to his letter from Respondent, decided to personally
visit the Respondent on September 10, to, as he credibly explained, “refresh” his application.
Nor, in any event, does it matters what DaBronzo’s reason may have been for ordering McGee
to leave the premises, and threatening to call the police if he didn’t, for the test for determining
whether certain conduct constitutes interference, restraint, or coercion is, as noted, an objective
one not dependent on the subjective intent of the actor, DaBronzo in this case. Kenmore
Electric, supra.
In short, by immediately directing McGee to leave the Respondent’s premises without so
much as affording him an opportunity to explain his presence, and threatening to call the police
to have him removed after learning that McGee was there to refresh his employment
application, the Respondent, through DaBronzo, interfered with, restrained, and coerced McGee
in the exercise of his Section 7 rights, and thereby violated Section 8(a)(1) of the Act. Whether
or not McGee may have felt coerced by DaBronzo’s threat is of no real import, for the coercive
nature of such a threat is not determined by its success or failure but rather whether, as stated,
the threat would reasonably tend to restrain or coerce employees in the exercise of their Section
7 rights. Naomi Knitting Plant, 328 NLRB 1279, 1280 (1999).
Further, DaBronzo’s threat to physically harm or cause death to McGee and his family if
he, DaBronzo, were to receive just one piece of mail from McGee, was also coercive and
unlawful under Section 8(a)(1) of the Act. The record reflects that the only piece of mail most
recently sent by McGee to Respondent was his November 9, 2009, letter and resumé seeking
re-employment, which I find was indeed faxed to and, in all likelihood, received by the
Respondent. While there is no evidence of any other mail having been sent by McGee to
Respondent, it is quite likely that the Respondent may have received some mail relating to the
prior settled unfair labor practice matter from the Board. Indeed, having denied ever receiving
McGee’s November 9, 2009, letter and resumé, I find it more likely than not that DaBronzo was
objecting to receiving any union or NLRB-related mail from McGee or from the NLRB relating to
any further charges that might be filed by McGee. Again, the underlying motivation for
DaBronzo’s threatening remark to McGee and his family is of no real consequence, for, as
stated, the question here is whether such a threat would have the tendency to interfere with,
restrain, or coerce McGee in the exercise of his Section 7 rights. I find that it would and that the
threat violated Section 8(a)(1) of the Act, as alleged.
2. The Section 8(a)(1), (3) and (4) allegations
arising from M. DaBranzo’s conduct
It is further alleged in the complaint that the Respondent also violated Section 8(a)(1),
(3), and (4) of the Act when M. DaBronzo called the police on McGee after the latter had already
left the Respondent’s premises. Thus, Counsel for the General Counsel contends that M.
DaBronzo’s decision to call police on McGee was motivated by her animosity to McGee as a
Union organizer and in response to his efforts to gain re-employment so as to continue his
“salting” campaign.
Regarding the Section 8(a)(3) allegation, in determining whether certain employer
conduct violates this provision of the Act, the Board applies the causation test set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Under the Wright Line, the General Counsel must first prove, by a preponderance of the
evidence, that the employee's protected conduct was a motivating factor in the employer's
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adverse employment action. To satisfy this burden, the General Counsel must show that the
employee in question, here job applicant McGee, was engaged in protected activity, that the
Respondent had knowledge of the employee’s protected activity, and that the Respondent bore
animus towards the employee’s protected activity. See, Camaco Lorain Mfg. Plant, 356 NLRB
No. 143, slip op. at 4 (2011). If the General Counsel is able to make a prima facie case of
discrimination, the burden under Wright Line shifts to the employer to demonstrate it would have
taken the action even in the absence of any protected activity by the affected employee.
Here, according to his credited account of the September 10, incident, McGee went to
Respondent’s office for the sole purpose of “refreshing” his job application, and made that fact
known to DaBronzo after the latter threatened to call the police on McGee if he did not
immediately leave the premises. (See TR. 26-27). Thus, there is no question but that McGee
was engaging in lawful, protected activity when he visited Respondent’s facility on September
10, and that the Respondent was fully aware of such activity by McGee prior to M. DaBronzo
calling and filing a report with the police. That Respondent bore animus towards McGee is
readily apparent from its unlawful eviction of him from its premises, threatening to call the police
on him if he did not leave even after learning that he simply wanted to refresh his employment
application, and thereafter threatening McGee and his family with physical harm. Respondent’s
stated explanation, provided by DaBronzo, for evicting McGee, namely, because McGee had
been a poor employee and who stole money from Respondent, was, as previously noted, not
credible and lacked other evidentiary support.
Indeed, it is readily apparent from M. DaBronzo’s testimony that her reason for calling
the police after McGee departed had nothing to do with McGee’s alleged poor past performance
or alleged theft of service during his prior employment with Respondent. Rather, her testimony
makes patently clear that it was McGee’s involvement with the Union and his association with
other union supporters, the unfair labor practice charges McGee had previously filed against
Respondent, and her belief that McGee’s September 10, visit was intended to provoke
Respondent into doing something that could trigger more unfair labor practice charges and
financially harm the Company, that prompted her to call the police. (TR. 90-91).
M. DaBranzo, however, also suggested that she called police because she feared that
McGee and “the other people he associates with” might return and could very well be on the
way,” suggesting implicitly that she acted out of concern for her and her family’s safety. I find
this explanation unconvincing, for there is nothing in the record, including the DaBronzos’ own
testimony, to indicate that McGee had, either by words or deed, threatened the DaBronzos in
any way during his September 10, visit, or that he had done so on prior occasions. Nor is there
any evidence in the record, or in the DaBronzos’ testimony, to indicate that McGee expressed
an intent to return to the DaBronzos’ home, either alone or with other Union organizers,
following his eviction. Consequently, M. DaBronzo’s suggestion that she called police out of
fear that McGee might return alone or with others to possibly harm her or her family is not
rooted in anything McGee may have said or done during his September 10, visit, or during any
prior contacts he may have had with the DaBronzos, and is, in my view, wholly unfounded.
Rather, I find her explanation in this regard, like her claim that McGee had been a poor
employee who stole from Respondent, and her statement in the police report that McGee
“harassed” her during his September 10, visit, not to be true. Indeed, if anyone had cause to be
concerned for his safety it was McGee, not M. DaBronzo or her family, for it was McGee and his
family who were directly threatened by DaBronzo with physical harm during his September 10,
visit, threats, which I find, M. DaBronzo was fully aware of since she witnessed the entire
incident.
In sum, I find that M. DaBronzo called the police on McGee not out of concern for her
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safety, but rather in retaliation for what she and her husband, DaBronzo, perceived to be
McGee’s audacious attempt to “refresh” his application for employment with Respondent after
having filed unfair labor practice charges against it for his alleged prior unlawful discharge, and
collecting $20,000 in backpay as part of a settlement agreement, which the DaBronzos’ deemed
to be “stolen” money.7 Further, given M. DaBronzo’s explanation that she believed McGee
came to the house to provoke an incident which would enable him to file more charges with the
Board, it is reasonable to believe that, in calling the police on McGee and having the officer
convey to McGee that he was not to return to the Respondent’s office, DaBronzo intended to
discourage and hopefully prevent McGee from seeking re-employment or engaging in any
further “salting” or other Union organizing activities. Accordingly, I find that Counsel for the
General Counsel has made a strong prima facie showing that M. DaBronzo’s September 10,
decision to call the police on McGee after the latter had already left was unlawfully motivated by
antiunion animus.
The Respondent, I further find, has offered no credible explanation to rebut Counsel for
the General Counsel’s prima facie case. The only explanation proffered by Respondent,
through M. DaBronzo, that she called the police after McGee had left out of fear that McGee
might return alone or with other Union associates to possibly harm her or her family is, as noted,
not credible and one which I find to be clearly pretextual. It is well-settled that a respondent
cannot rebut the General Counsel’s initial showing of discriminatory motivation with a pretextual
explanation. Kenmore Electric, supra, slip op. at 9; Jesco, Inc., 347 NLRB 903, 907 (2006).
Nor is M. DaBronzo’s belief that McGee was intent on provoking some incident which might
trigger additional charges being filed with the Board against Respondent a legitimate defense.
While McGee’s purpose in seeking to have his employment application “refreshed” may have
been part of an effort to renew a “salting” campaign among Respondent’s employees, “salting
itself is protected, concerted activity, even if it is intended in part to provoke an employer to
commit unfair labor practices.” Kenmore Electric, supra, slip op. at 4. Accordingly, I find that
Counsel for the General Counsel’s prima facie case remains intact, and that the Respondent
violated Section 8(a)(3) and (1) of the Act, as alleged, when M. DaBronzo called the police on
McGee following his September 10, visit to Respondent’s facility.
The complaint, as noted, further alleges that M. DaBronzo’s conduct in calling the police
on McGee also violated Section 8(a)(4) and (1) of the Act. Section 8(a)(4) prohibits adverse
action against an employee, or, as in this case, a former employee and job applicant, “who has
filed charges with, or given testimony before, the Board. As with a Section 8(a)(3) allegation, A
Wright Line approach is used for analyzing alleged violations of Section 8(a)(4) of the Act, and
the remedy is the same. Newcor Bay City Division, 351 NLRB 1034, fn. 4 (2007). Thus,
Counsel for the General Counsel here has the initial burden of proving that McGee’s conduct in
utilizing the Board’s processes, e.g., filing charges with the Board, was a motivating factor in
M. DaBronzo’s decision to call the police on McGee.
Counsel for the General Counsel here clearly has made a prima facie showing of
Section 8(a)(4) discriminatory conduct towards McGee. As evident from the discussion above
regarding the Section 8(a)(3) allegation, the Respondent was fully aware of McGee’s status as a

7 DaBronzo’s initial angry remark to McGee, on first seeing him at his front door on
September 10, that McGee must be “fucking kidding” and had “balls” coming to his house after
McGee and his family stole money from him, a clear reference, as previously found, to the
$20,000 backpay Respondent had paid to McGee, makes patently clear that the DaBronzos
were both surprised and angered by McGee’s visit, and viewed his appearance as impudent
and audacious.
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Union organizer and knew full well that McGee had earlier filed charges with the Board which
led to a settlement agreement and a $20,000 backpay award for McGee. It is also fairly
apparent that the Respondent held McGee personally responsible for its problems with the
NLRB, for, in her testimony, M. DaBronzo recounted how she had had prior court dealings with
McGee, a clear reference to the charges McGee had filed against Respondent with the Board,
and emphasized that she had lost count of the “many NLRB charges” McGee had filed against
Respondent. (TR. 90-91). Thus, one can reasonably infer from M. DaBronzo’s apparent
exasperation at having to respond to the “many NLRB charges” filed against it by McGee, which
presumably includes the charges which led to the $20,000 backpay award to McGee, that the
DaBronzos’ were fed up with having to respond to said charges.
I am convinced that M. DaBronzo’s decision to call the police was therefore motivated, at
least in part, by the charges McGee had previously filed against Respondent, and that she did
so in the hope that the directive from the police officer for McGee to keep away from the
DaBronzos’ home would intimidate and deter McGee from filing any further charges against
Respondent with the Board. Accordingly, I find that Counsel for the General Counsel has
demonstrated that M. DaBronzo’s conduct in calling the police was designed to retaliate against
McGee for having filed charges with the Board, and to deter him from filing any further charges.
The Respondent, for its part, has presented no credible evidence to rebut Counsel for
the General Counsel’s prima facie case. Its only explanation, provided by M. DaBronzo, that
she called the police out of fear that McGee might return to possibly harm her or her family,
was, as noted, not credible. Having failed to present a credible explanation for M. DaBronzo’s
conduct, I find that the Respondent, as alleged in the complaint and asserted by Counsel for the
General Counsel, violated Section 8(a)(4) and (1) of the Act when M. DaBronzo called the
police on McGee.
Finally, I agree that M. DaBronzo’s decision to call the police on McGee independently
violated Section 8(a)(1), since such conduct would reasonably tend to interfere with, restrain, or
coerce McGee in the exercise of his Section 7 right to apply for employment like any other
employee without regard to his status as a Union organizer or “salt.” Kenmore Electric, supra,
slip op. at 6.
Conclusions of Law
1. The Respondent, M&R Insulation Systems, LLC, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, International Association of Heat & Frost Insulators & Allied Workers,
Local No. 23, Harrisburg Pa, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By ordering McGee to leave its premises, threatening to call the police to have him
removed, and threatening to physically harm McGee and his family, the Respondent violated
Section 8(a)(1) of the Act.
4. By calling the police on McGee, after evicting him from its premises, because of his
activities on behalf of the Union, and to retaliate against him for having filed unfair labor practice
charges with the Board, the Respondent violated Section 8(a)(1), (3), and (4) and (1) of the Act.
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5. The Respondent’s above-described unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent shall be required to notify McGee, in writing, that it has no objection to
McGee “refreshing” his job application.
The Respondent shall also be required to post an appropriate notice to employees, and
to mail a copy of said notice to its employees.8
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended9
ORDER
The Respondent, M&R Insulation Systems, LLC, Newtown, PA, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interfering, restraining or coercing McGee or any other employee in the exercise of
their Section 7 right to “refresh” or update his application by ordering him to leave its premises,
threatening to call the police if he did not do so, threatening him and his family with physical
harm, and calling the police.
(b) Calling the police on McGee in order to discourage him from attempting to organize
its employees or from engaging in any other Union activity at its facility, and to retaliate against
McGee for having filed unfair labor practice charges against it.
(c) 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.

8 Counsel for the General Counsel contends, on brief (p. 22, fn. 10), and I agree that the
notice should be mailed to employees at their homes as well as posted at Respondent’s facility,
since the record, more particularly DaBronzo’s own testimony (TR. 59-60, 62) reflects that
employees, except for some monthly safety meetings, rarely have occasion to go Respondent’s
office. In these circumstances, a posting at Respondent’s office alone will be insufficient to
notify employees of their Section 7 rights.
9 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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2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Notify McGee, in writing, that it does not object to McGee “refreshing” or updating his
job application.
(b) Within 14 days after service by the Region, mail, at its own expense, a copy of the
attached notice marked ‘Appendix” 10 to all its current employees at their home addresses, and
post copies of the notice at its facility in Newtown, PA. 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
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 the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
September 10, 2010.
(c) 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 20, 2011
____________________
George Alemán
Administrative Law Judge

10 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.”
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 interfere with, restrain, or coerce William McGee or any of you in the exercise of
your right to engage in protected activity by ordering you to leave our premises, threatening to
call the police to remove you from our premises, threatening you with physical harm, or by
calling the police on you.
WE WILL NOT call the police on William McGee or any of you in order to discourage you from
engaging in Union or other protected activity, or to retaliate against you for having filed an unfair
labor practice charge against us with the National Labor Relations Board, or deter you from
doing so.
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 notify William McGee, in writing that we do not object to his “refreshing” or updating
his job application with us.
M&R INSULATION SYSTEMS, LLC
(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.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
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, 215-597-7643.