Network Dynamics Cabling

National Labor Relations Board - Board Decisions

Dec 31, 2007

351 N.L.R.B. 1423 (N.L.R.B. 2007)

NETWORK DYNAMICS CABLING
351 NLRB No. 98
1423
Network Dynamics Cabling, Inc. and International
Brotherhood of Electrical Workers, Local 98,
AFL–CIO. Cases 4–CA–30474, 4–CA–31007, 4–
CA–31194, 4–CA–31198, and 4–CA–31472
December 31, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
On April 10, 2003, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed cross-exceptions, a supporting brief, and an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs, and has decided to
adopt the judge’s rulings, findings1 and conclusions only
to the extent consistent with this Decision and Order.
For the reasons stated by the judge, we affirm the
judge’s findings that the Respondent violated Section
8(a)(1) of the Act by coercively interrogating employees
David Hughey in June 2001,2 Brian Tandarich on Janu-
ary 8 and 15, 2002, and James Korejko on May 14,
2002.3 We resolve the remaining issues in this case as
set forth below.
The Respondent, Network Dynamics Cabling, Inc.
(NDC), installs low-voltage cabling at its customers’
places of business. In 2001 and 2002, the Union, IBEW
Local 98, undertook an effort to persuade employees of
the Respondent to join Local 98. In connection with the
Union’s effort, some of the Respondent’s employees
engaged in union activity. The allegations in this case
flow from the Respondent’s actions relative to its em-
ployees’ Section 7 conduct.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We correct the judge’s apparently inadvertent dismissal, in foot-
note 10 of the judge’s decision, of par. 5(a) of the complaint in Case 4–
CA–30474. Footnote 10 incorrectly states that par. 5(a) alleges as
unlawful a remark that Respondent’s director of operations, Todd Ste-
venson, made to Hughey about Union Business Agent Raymond Della
Vella. In fact, par. 5(a) alleges as unlawful the interrogation of Hughey
(affirmed above) and a promise of benefits to Hughey (discussed be-
low).
3 Member Schaumber finds it unnecessary to pass on this allegation
as it is cumulative of similar findings of unlawful interrogation here,
and finding this additional violation would not materially affect the
remedy.
I. ALLEGATIONS INVOLVING DAVID HUGHEY
A. Facts
In May and June 2001, the Respondent’s crew working
at a United Parcel Service (UPS) facility—including, as
relevant here, David Hughey and Brian Tandarich—met
twice with Union Business Agent and organizer Ray-
mond Della Vella. Hughey telephoned Della Vella after
the second meeting and told him that he wanted to be-
come involved with the Union as an organizer. On or
about June 16, Hughey began wearing a Local 98 cap to
work, and the Union notified the Respondent that
Hughey was a volunteer organizer. On or about June 20,
Hughey placed union handbills on the tables in a cafete-
ria/breakroom that was used by employees of both NDC
and UPS. The next day, Hughey showed union handbills
to Tandarich and three other employees as they drove to
work. When they arrived at the UPS site, Tandarich took
some of the handbills to the UPS security office. A UPS
security employee told Tandarich that UPS did not want
Hughey to work on its property. Tandarich called Direc-
tor of Operations Todd Stevenson and told him what had
happened. Stevenson told Tandarich to bring Hughey to
the Respondent’s West Chester office.
When Hughey arrived at the office, he saw one of his
handbills on Stevenson’s desk. Stevenson asked him,
“Why are you doing this?” Hughey replied that the Un-
ion provided better benefits and pay rates, and that he
wanted to advance quickly. Stevenson told Hughey that
the Respondent was willing to put Hughey on the fast
track to a supervisory position. Stevenson produced a
list of qualifications for such positions and went over the
list with Hughey. He told Hughey he was going to let
him run small projects to see how he was with the crews,
and that he would move up Hughey’s reviews. He then
offered Hughey a pay increase of two dollars per hour.
Hughey said he needed to discuss the matter with his
wife, and Stevenson replied that with a commitment
from Hughey, he (Stevenson) would commit to Hughey’s
becoming a supervisor and would put the promise in
writing.
The next day, Hughey returned to and worked at the
UPS site. The following day, the Respondent transferred
Hughey to a job in Allentown, and subsequently, to a job
in Wilkes-Barre. Hughey’s commute to the Allentown
and Wilkes-Barre jobsites took more than 2 hours. His
commute to the UPS jobsite took 45 minutes.
On July 16, Stevenson and Operations Manager Mark
Bianco asked employee James Korejko4 to keep an eye
on Hughey and to report to them if anyone from the Un-

4 Korejko’s title was “Supervisor.” The parties stipulated that NDC
employees with the title of “Supervisor” are not statutory supervisors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1424
ion showed up at the jobsite.5 That same month, Hughey
approached Stevenson with a handful of union handbills
and threw them in the trash. Stevenson said, “I guess
you made your decision,” and Hughey responded that he
had. Stevenson told Hughey he would talk to Respon-
dent’s accountant to process Hughey’s raise.6
B. Discussion
1. Offer of wage increase and promotion
The complaint alleged that the Respondent’s offer to
Hughey of a wage increase and promotion violated Sec-
tion 8(a)(1). The judge dismissed this allegation, finding
that the Respondent had established “a legitimate reason
for offering Hughey a wage increase, i.e., retaining him
as an employee.” The General Counsel excepts. We
reverse.
An allegation that an employer has violated Section
8(a)(1) by making a promise of benefits in response to
union organizational activity is analyzed under NLRB v.
Exchange Parts, 375 U.S. 405 (1964), regardless of
whether the union has filed a petition for an election.
See, e.g., Hampton Inn NY—JFK Airport, 348 NLRB 16,
17 (2006). We conclude that Exchange Parts properly
applies here as well, even though the Union’s immediate
goal apparently was to enlist individual employees of the
Respondent rather than to secure recognition from NDC.7
Although 8(a)(1) allegations are typically analyzed under
an objective standard, and motive is irrelevant, see
American Freightways Co., 124 NLRB 146, 147 (1959),
the 8(a)(1) analysis under Exchange Parts is motive-
based. See Hampton Inn NY—JFK Airport, supra at 18
fn. 6. Thus, we must determine whether the record evi-
dence as a whole, including any proffered legitimate rea-
son for the wage increase and promotion offer to
Hughey, supports an inference that the offer was moti-
vated by an unlawful purpose to coerce or interfere with
Hughey’s protected union activity. See, e.g., Royal
Manor Convalescent Hospital, 322 NLRB 354, 361
(1996), enfd. mem. 141 F.3d 1178 (9th Cir. 1998).
We find that the record does support such an inference.
The immediate occasion of the meeting at which the of-
fer was extended was the Respondent’s discovery that

5 The judge found that this instruction to spy on and report Hughey’s
union activity violated the Act. There are no exceptions to this finding.
6 Hughey resigned his employment with NDC before his raise could
be processed. He testified that he resigned because of the travel time
involved in commuting to his new assignments, coupled with the fact
that he was constantly moving between sites.
7 These goals are certainly not incompatible. A union effort to per-
suade individual employees of a nonsignatory employer in the con-
struction industry to join the union, quit, and take employment with a
union employer exerts economic pressure on the nonunion employer to
recognize the union and sign an 8(f) agreement.
Hughey was distributing union handbills. Stevenson
started the meeting by asking Hughey why he was doing
so.8 Hughey responded that the Union provided better
benefits and pay rates, and that he wanted to advance
quickly. The judge found that this response informed
Stevenson that Hughey intended to quit his job with
NDC, and that Stevenson’s subsequent offer of a promo-
tion and wage increase was motivated by the legitimate
reason of seeking to induce Hughey to stay with NDC.
But Hughey did not expressly threaten to quit. He stated
a desire to work under union terms. That desire could be
fulfilled by NDC becoming a signatory contractor as well
as by Hughey quitting NDC and going to work at a union
shop.9 Therefore, we reverse the judge’s finding that
Hughey either expressly or impliedly informed Steven-
son that Hughey intended to quit his job with the Re-
spondent.
Moreover, 2 days later, the Respondent imposed on
Hughey a burdensome commute by transferring him to a
distant jobsite. That is not what one would expect of an
employer seeking to induce an employee to stay with the
company. Subsequently, the Respondent instructed em-
ployee Korejko to spy on Hughey and report whether
anyone from the Union showed up at Hughey’s jobsite.
In sum, the totality of the Respondent’s conduct toward
Hughey suggests a classic carrot-and-stick effort to co-
erce him to abandon his union activities and sympathies,
coupled with surveillance to determine whether its effort
was succeeding. Based on the record as a whole, we
infer that the Respondent’s offer to Hughey of a wage
increase and promotion was coercively motivated and
violated Section 8(a)(1).
2. Transfer of Hughey from the UPS jobsite
The judge found that the Respondent violated Section
8(a)(3) by transferring Hughey from the UPS site be-
cause of Hughey’s union activity. In so finding, the
judge assumed that, as the Respondent claimed, Hughey
was transferred at the demand of UPS; but even assum-
ing that was so, the judge found that the transfer was
unlawful under Southern Services, 300 NLRB 1154
(1990), enfd. 954 F.2d 700 (11th Cir. 1992).10 We agree

8 We have adopted the judge’s finding that, under the totality of the
circumstances, this question violated Sec. 8(a)(1). For the reasons
discussed in his partial dissent, Member Schaumber disagrees.
9 The judge found that the Union was not seeking to make NDC a
signatory contractor, but simply to convince NDC employees to leave
NDC, join the Union, and take employment with a union contractor.
As stated above, however, even assuming that was the Union’s imme-
diate goal, it was consistent with a goal of pressuring NDC to become a
signatory contractor.
10 In Southern Services, supra, the Board held that employees who
regularly and exclusively work on the premises of an employer other
than their own, and who distribute union literature to fellow employees
NETWORK DYNAMICS CABLING 1425
with the judge’s conclusion that the transfer was unlaw-
ful, but we disagree with his assumption that NDC was
merely carrying out the wishes of UPS.
First, to the extent that UPS expressed a desire that
Hughey be removed from the jobsite, it was NDC that
instigated UPS to do so: Tandarich, who was in charge
of the NDC crew at the UPS site, took some of Hughey’s
union handbills to the UPS security office. Second, the
request to remove Hughey came from an employee in the
security office; there is no evidence that anyone in UPS
management, or even a UPS supervisor, ever instructed
NDC to remove Hughey from the jobsite. Third, when
Stevenson met with Hughey (and, as we have found,
unlawfully interrogated him and promised him a wage
increase and promotion), he said nothing about removing
him from the UPS site, let alone removing him at the
insistence of UPS. Fourth, and most significantly, the
day after the UPS security employee told Tandarich that
UPS did not want Hughey working on the property, the
Respondent nonetheless returned Hughey to the UPS
jobsite. The following day, it transferred Hughey to the
Allentown job; but there is no evidence that it did so in
response to a reiterated demand from UPS.
Based on all of these circumstances, we find pretextual
the Respondent’s claim that it transferred Hughey be-
cause UPS told it to do so. We find, on the contrary, that
NDC itself decided to transfer Hughey, and that it did so
as part of its carrot-and-stick effort, discussed above, to
induce Hughey to abandon the Union. Thus, the General
Counsel demonstrated that Hughey’s union activity was
a motivating factor in the transfer decision by showing
that Hughey engaged in such activity, the Respondent
knew as much, and the Respondent harbored animus
against that activity; and the Respondent failed to show
that it would have transferred Hughey even in the ab-
sence of his union activity. Accordingly, on this basis,
we affirm the judge’s finding that Hughey’s transfer vio-
lated Section 8(a)(3).
II. ALLEGATIONS INVOLVING BRIAN TANDARICH
At the time of the events at issue here, Brian Tandarich
held the position of senior supervisor. In that position,

on those premises when they are on the property pursuant to their em-
ployment relationship, enjoy rights under Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945), and thus have a protected right to engage
in such distribution on nonworking time in nonworking areas unless the
distribution is shown to interfere with production or discipline. South-
ern Services has been called into question by the Court of Appeals for
the District of Columbia Circuit. See New York New York, LLC v.
NLRB, 313 F.3d 585 (D.C. Cir. 2002). As explained below, we reject
as pretextual the Respondent’s claim that it transferred Hughey at
UPS’s direction. Accordingly, we find it unnecessary to pass on the
judge’s application of Southern Services or to address the D.C. Cir-
cuit’s critique of that decision.
he was in charge of the Respondent’s crew at the UPS
site. He attended the meetings with Della Vella in May
and June 2001, referenced above.
A. Tandarich’s Alleged Supervisory Status
In his role as crew chief, Tandarich directed employees
to some extent. Because the judge’s decision predated
the Board’s decision in Oakwood Healthcare, Inc., 348
NLRB 686 (2006), the judge did not apply the account-
ability test the Board adopted in Oakwood to determine
whether Tandarich possessed the authority responsibly to
direct. See Oakwood, supra at 690–692. We find it un-
necessary, however, to remand for a determination on
that issue because, even assuming Tandarich possessed
such authority, the Respondent failed to show that his
direction of employees entailed the exercise of independ-
ent judgment. The judge found that there was no evi-
dence that Tandarich considered the relative skills of
employees in shifting them from one task or crew to an-
other. We affirm that finding, and accordingly conclude
that Respondent did not meet its burden to prove that
Tandarich’s direction of employees “r[o]se above the
merely routine or clerical.” Id. at 693; see also Croft
Metals, Inc., 348 NLRB 717, 722 (2006) (finding that
employer failed to meet its burden of proof as to inde-
pendent judgment where it “adduced almost no evidence
regarding the factors weighed or balanced by the lead
persons in making production decisions and directing
employees”). Thus, we affirm the judge’s finding that
Tandarich was not a supervisor under Section 2(11) of
the Act.11
B. Tandarich’s Discharge
We have affirmed, above, the judge’s findings that the
Respondent violated Section 8(a)(1) by coercively inter-
rogating Tandarich on January 8 and 15, 2002. Those
interrogations form the backdrop of the Respondent’s
discharge of Tandarich on January 16. Thus, we review
them briefly here.

11 In NLRB v. Kentucky River Community Care, 532 U.S. 706
(2001), the Supreme Court rejected the Board’s then-extant interpreta-
tion of “independent judgment” to exclude the exercise of “ordinary
professional or technical judgment in directing less skilled employees
to deliver services.” The Court held that it is the degree and not the
kind of discretion involved in exercising a 2(11) supervisory authority
that determines whether it has been exercised with independent judg-
ment. 532 U.S. at 714. We are concerned that the judge may have
committed the error that the Supreme Court corrected in Kentucky
River when he stated that “an individual does not necessarily become a
supervisor in situations in which his authority to direct employees
emanates solely from his skill or experience.” Thus, in finding that the
Respondent failed to show that Tandarich exercised independent judg-
ment in directing employees, we place no reliance on the judge’s state-
ment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1426
After the Union filed a charge with the Region con-
cerning the transfer of David Hughey from the UPS job-
site, the Respondent’s attorney, Christopher Murphy,
interviewed Tandarich on October 15, 2001, in connec-
tion with the charge and secured an affidavit from him.
The following month, Tandarich contacted Union Busi-
ness Agent Della Vella and asked if he could join the
Union. On January 8, 2002, Murphy met again with
Tandarich and sought his cooperation in executing a sup-
plemental affidavit concerning the Hughey matter. Tan-
darich protested that he did not want to be involved, but
to no avail.12 Tandarich requested that he be permitted to
review the affidavit when it was completed, and Murphy
agreed.
On January 15, Murphy’s associate, Attorney Michael
Lignowski, met with Tandarich and Tandarich’s father at
a Bob Evans restaurant. Lignowski gave Tandarich and
his father a copy of the draft supplemental affidavit.
After some discussion, Tandarich got up and left the ta-
ble, affidavit in hand. He returned without the affidavit,
wearing a Local 98 cap. Lignowski asked him where the
affidavit was, and Tandarich replied that Local 98 had it.
In fact, Tandarich had given it to Della Vella, who was
waiting in the restaurant lobby.
The next day, Director of Operations Stevenson called
Tandarich into his office. Stevenson told him that he had
heard about “the little incident you did last night,” and
said that the company had been loyal to him and that
there were witnesses who saw Tandarich talking to Della
Vella on Company time. Stevenson then told Tandarich

12 In finding Murphy’s January 8 interrogation of Tandarich lawful,
our dissenting colleague relies in part on the affidavit’s recitation of the
safeguards required under Johnnie’s Poultry Co., 146 NLRB 770, 775
(1964). But reciting the safeguards is not enough where, as here, the
evidence shows that one of them was not, in fact, provided. Johnnie’s
Poultry requires, among other things, that the employer obtain the
interviewed employee’s participation on a voluntary basis. Our col-
league says that there is no record evidence of Tandarich’s protests.
Murphy himself testified, however, that early in the interview, Tanda-
rich “expressed his unwillingness to be involved in the case.” Murphy
brushed aside Tandarich’s protestations because he believed that Tan-
darich was a supervisor. Indeed, Murphy tacitly acknowledged that the
lawfulness of his questioning depended on Tandarich’s supervisory
status, telling Tandarich that he (Murphy) would not be able to speak to
Tandarich if Tandarich were a technician. Our colleague also disagrees
with the judge’s finding that Murphy “continued to seek [Tandarich’s]
signature on an affidavit” because Tandarich testified that he had no
recollection that Murphy tried to force him to sign the affidavit on
January 8. Our colleague reads the judge’s finding too literally. There
was no affidavit for Tandarich to sign on January 8; Murphy told Tan-
darich that it would be put together within a few days. But we agree
with the judge that Murphy continued to seek Tandarich’s signature, in
the sense that Murphy continued to question him with a view to prepar-
ing a supplemental affidavit for Tandarich’s signature, despite Tanda-
rich’s expressed unwillingness to be involved. In doing so, the Re-
spondent violated Sec. 8(a)(1).
he was fired. Stevenson added, “Don’t be surprised if
you see something in the mail,” and that the Union and
the NLRB could not protect him.
We affirm the judge’s finding that Tandarich’s dis-
charge violated Section 8(a)(3). In so finding, the judge
apparently analyzed the discharge under Wright Line.13
Wright Line applies where the employer’s motivation for
taking an adverse employment action is in dispute. Here,
however, there is no dispute that the reason Tandarich
was discharged was, as Stevenson put it, “the little inci-
dent you did last night,” i.e., giving the affidavit to Della
Vella. Thus, the sole issue is whether Tandarich, in do-
ing so, enjoyed the protection of the Act. See, e.g., Felix
Industries, 331 NLRB 144, 146 (2000), enfd. denied on
other grounds and remanded 251 F.3d 1051 (D.C. Cir.
2001).
We find that he did. Tandarich was entitled to a copy
of his affidavit, and to share it with any individual he
wished, including representatives of the Union. See
Gerbes Super Markets, Inc., 176 NLRB 11 (1969), enfd.
436 F.2d 19 (8th Cir. 1971). In Gerbes, as here, an em-
ployee was discharged for giving an affidavit prepared
for him by the employer’s attorney to a union representa-
tive. The Board found that the termination was unlawful,
as the employee was entitled to refrain from assisting the
employer’s defense if he so wished. Gerbes is directly
on point. Moreover, giving the affidavit to Della Vella
plainly constituted union assistance, which is expressly
protected by Section 7 of the Act.
We are not persuaded by the Respondent’s assertion
that the statement was confidential. The affidavit pur-
ported to be Tandarich’s statement. What Tandarich had
to say about the Hughey matter could not have been con-
fidential to the Respondent, as Tandarich had it in his
power to disclose what he knew about that incident to
anyone he wished. In addition, Lignowski gave the affi-
davit to Tandarich and Tandarich’s father. Thus, even
assuming the affidavit was confidential up to that point,
the Respondent waived any confidentiality.
We are also unpersuaded by the Respondent’s com-
parison of Tandarich’s act to handing over the team’s
playbook to the opposing team. The comparison is based
on the Respondent’s view, which we have rejected, that
Tandarich was a statutory supervisor. As an employee
protected under Section 7, Tandarich was entitled to
choose not to assist the Respondent’s defense against the
Union’s charge, and instead to assist the Union if he so

13 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). The judge did not cite Wright Line. How-
ever, his finding that the General Counsel “satisf[ied] [his] initial bur-
den of showing antiunion animus and discriminatory motive” indicates
that he was applying the Wright Line standard.
NETWORK DYNAMICS CABLING 1427
desired. Although the Respondent may well have been
displeased by Tandarich’s decision to share the draft af-
fidavit with the Union, his doing so was protected under
the Act. See Gerbes, supra at 14 (“Even assuming that
[the employee] . . . engaged in misconduct by his refusal
to surrender the document, this ‘misconduct’ was the
outgrowth of a protected right and we do not view it as
an impropriety of sufficient magnitude to place [the em-
ployee] beyond the protective shield of the Act.”) (inter-
nal quotations omitted). Consequently, we affirm the
judge’s finding that the Respondent violated Section
8(a)(3) of the Act by discharging Tandarich.
Our dissenting colleague finds that Tandarich was law-
fully discharged because his act of walking off with the
affidavit was an act of insubordination. That finding
misses the point. Tandarich was not discharged for
walking off with the affidavit. He was discharged for
giving the affidavit to Della Vella. Although Steven-
son’s allusion to “the little incident you did last night”
was somewhat ambiguous in this regard, his added
statements that the company had been “loyal” to Tanda-
rich and that there were witnesses to Tandarich talking to
Della Vella on company time leave no doubt that it was
the protected act of giving the affidavit to the Union that
resulted in Tandarich’s discharge—and our colleague
does not contend that the Respondent could have law-
fully discharged Tandarich for that act of union assis-
tance. We agree.
C. Respondent’s Threat to Prosecute Tandarich
On March 20, 2003, the Respondent sent Tandarich a
letter threatening to prosecute him if he failed to return
certain items of company property, including a rotary
hammer, cabling, and a sawzall. The letter arrived at a
time when Tandarich was preparing to participate in a
Board hearing regarding the Hughey matter. Tandarich
did not have any of the demanded items in his posses-
sion. Tandarich did, however, discover in his garage a
ladder owned by the Respondent, about which he had
forgotten. Through the Union, Tandarich contacted the
Respondent and offered to arrange a time for the return
of the ladder. The Respondent did not respond to this
offer.
The judge found no credible evidence that Tandarich
had the items in question, and therefore inferred that the
letter was motivated by animus against Tandarich’s un-
ion activities. He concluded, however, that because Tan-
darich “had . . . quit his employment” with the Respon-
dent, the letter was unlikely to have any effect on his
exercise of Section 7 rights. Accordingly, the judge dis-
missed the allegation that the threat of prosecution vio-
lated Section 8(a)(1).
We reverse the judge’s dismissal. Preliminarily, Tan-
darich had not quit his employment. He was unlawfully
discharged, and thus retained the Section 7 rights of an
employee. Moreover, contrary to the judge, the test is
not the subjective one of whether the threat was likely to
affect Tandarich. It is the objective one of whether the
threat would reasonably tend to interfere with, restrain,
or coerce an employee in the exercise of his Section 7
rights. See Postal Service, 350 NLRB 125 (2007).14 We
find that it would. An employee in Tandarich’s position,
preparing to assist the Union and the General Counsel in
an upcoming Board hearing in which the Respondent
was the adverse party, might reasonably decide to with-
hold that assistance for fear of triggering the threatened
prosecution. Even assuming that the Respondent could
not persuade the authorities to undertake such a meritless
prosecution, and that an employee in Tandarich’s posi-
tion would suspect as much, the employee may still de-
cide that it is not worth becoming the target of a police
investigation and therefore withdraw his union support.
Thus, we find that the threat of prosecution violated Sec-
tion 8(a)(1).
We reject the Respondent’s argument that Tandarich is
not fit for reinstatement because he continues to possess
the Respondent’s ladder. There is no evidence that Tan-
darich stole the ladder. To the contrary, the judge cred-
ited Tandarich’s testimony that he had used the ladder to
paint a stairway in his home and had subsequently left it
in his garage and simply forgotten about it. When the
Respondent demanded the return of other items that he
did not possess, Tandarich volunteered that he had the
ladder; and the Union contacted the Respondent on Tan-
darich’s behalf to arrange for its return. The Respondent
never took the Union up on its offer. Therefore, we re-
ject the Respondent’s contention that Tandarich is unfit
for reinstatement.
III. ALLEGATIONS INVOLVING THOMAS MOORE
A. Facts
Thomas Moore was employed by the Respondent in
the position of “Supervisor.”15 On March 20, 2002, Re-
spondent assigned Moore to its Arcadia University pro-

14 Assuming arguendo that the principles of BE & K Construction
Co., 351 NLRB 450 (2007), apply to a situation where a threat to
prosecute is “incidental” to a prosecution, there is no basis for a finding
that the Respondent’s threat was thus “incidental.” See Postal Service,
supra. The Respondent never pressed charges, Tandarich did not have
the items he was accused of taking, and the Union’s conciliatory an-
swer to the threatening letter informed the Respondent that Tandarich
did not have those items and that he was prepared to return a different
item that he did have.
15 As mentioned supra, the parties stipulated that “Supervisors” are
not statutory supervisors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1428
ject, under the supervision of Operations Manager Mark
Bianco. On April 2, during nonworking time, Moore
distributed union flyers at the site to coworkers and
passersby.16 Security personnel from the university told
him to stop handbilling and threatened to call the police,
and Moore eventually stopped. That afternoon, Bianco
told Moore that he would be working on another jobsite
the next day.
The next day, April 3, Moore was assigned to work
with James Korejko at the Norwood Construction Com-
pany jobsite. Project Manager Jason Ellmore told Kore-
jko to keep an eye on Moore and an eye out for anyone
from the Union. Della Vella followed Korejko and
Moore to the Norwood site. Upon arriving at the site,
Della Vella tried to persuade Korejko to join the Union.
Korejko called Stevenson and reported that Della Vella
had followed them to the site. That afternoon, Moore
called Bianco to ask where he would be working the next
morning. Bianco told him he didn’t know yet, and that
Moore should report to the NDC office. Moore asked
about returning to the Arcadia job, and Bianco told him
that the two other employees at that site could handle the
work there.
On April 4, Moore arrived at NDC’s West Chester of-
fice at 7 a.m. and placed union handbills in employee
mailboxes, in the presence of the warehouse manager.
At about 8 a.m., Moore asked Bianco where he would be
working that day. Bianco told him he did not have any-
where to send him, and that Moore would have to take
the day off. Moore protested, saying he had taken days
off in January and March, and that it was someone else’s
turn to take a day off. Stevenson joined the conversation,
telling Moore that he was not the only employee being
forced to take days off. Moore asked Bianco if he would
be working the next day, and Bianco said he would call
him later in the day.
Moore and Stevenson then engaged in a heated discus-
sion. According to Moore, he asked Stevenson what he
was so upset about, and whether it was the fact that
Moore had been seen talking to Local 98. Stevenson
replied that it was the fact that Moore was “acting child-
ish and pledging the Union.” Stevenson told Moore that
he “couldn’t continue . . . breaking the law by telling Ray
Della Vella where [the Respondent] was going.” Steven-
son added that Moore “could continue filing charges with
the NLRB because he [Stevenson] knew for a fact that
his employees didn’t want to join the Union.” Moore
asked if Stevenson was keeping an eye on him and fol-
lowing him, and if he was being fired. Stevenson said he

16 Stevenson acknowledged that he was aware of Moore’s handbill-
ing at the Arcadia site.
was not firing Moore and told him to leave. Stevenson
telephoned Moore that afternoon and told him to take the
next day off because he didn’t have any work for him.17
The next day, Moore and Della Vella went to the Ar-
cadia site and handbilled. That afternoon, Moore re-
ceived a phone call from Stevenson, who told him that he
was fired for insubordination.
B. Discussion
1. Transfer from Arcadia University
We affirm the judge’s finding that the Respondent did
not violate Section 8(a)(3) of the Act when it transferred
Moore from the Arcadia University worksite. Assuming
arguendo that the General Counsel established an initial
case under Wright Line, supra, that Moore’s union activ-
ity was a motivating factor in the transfer, the Respon-
dent demonstrated that it would have transferred Moore
from the Arcadia site regardless of Moore’s protected
activity. The record establishes that work was slow at
the Arcadia site at the time of Moore’s transfer. Moore’s
last day of work at the Arcadia site was April 2. From
April 3 to 18, only two of the Respondent’s employees
were working at the Arcadia site. Thus, we affirm the
judge’s finding that the Respondent did not violate the
Act by transferring Moore.
2. Failure to assign further work
We reverse the judge’s finding that the Respondent did
not violate the Act when it failed to assign further work
to Moore beginning April 4. The General Counsel
clearly established an initial case under Wright Line, su-
pra. The Respondent obviously knew of Moore’s union
activity and, just as obviously, harbored animus towards
that activity. Further, the denial of work occurred imme-
diately following Moore’s union activity of handbilling
at Arcadia on April 2 and at NDC’s office on April 4,
and of informing Della Vella of his whereabouts on April
3. The Respondent failed to rebut the General Counsel’s
case. Although some other employees were also not as-
signed work on April 4 and 5, other employees were; and
the Respondent failed to establish that, when work was
short, it had any Section 7-neutral procedure for deciding
which employees would and which would not work on
any given day, and that under that system, Moore would
not have worked on April 4 and 5. Thus, at best, the Re-
spondent showed that it had a legitimate reason—
shortage of work—for not assigning Moore, but it failed
to show that this reason would have resulted in Moore’s
nonassignment even in the absence of his union activity.
See, e.g., Hicks Oils & Hicksgas, 293 NLRB 84, 85

17 The judge declined to credit Stevenson’s testimony that Moore
cursed at him or refused to leave the premises.
NETWORK DYNAMICS CABLING 1429
(1989), enfd. 942 F.2d 1140 (7th Cir. 1991). We there-
fore find that the Respondent violated Section 8(a)(3) by
refusing to assign work to Moore on April 4 and 5.18
3. Discharge of Moore
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(3) of the Act by discharging Moore.
In so finding, the judge applied an amalgamation of theo-
ries, part Wright Line, supra, and part Atlantic Steel.19 It
is apparent that the Respondent discharged Moore as a
result of the argument between Moore and Stevenson on
April 4. Although that argument began over Respon-
dent’s refusal to assign Moore work, it quickly moved on
to the subject of Moore’s union activity. Moore’s de-
fense of his protected activity was itself protected. Thus,
we conclude that Moore’s discharge is properly analyzed
under Atlantic Steel; and the issue is whether, in defend-
ing his union activity, Moore crossed the line so as to
lose the Act’s protection. We find that he did not. The
judge discredited testimony that Moore cursed at Steven-
son. Moreover, to the extent that Moore raised his voice
at Stevenson, his outburst was provoked by comments
such as Stevenson’s assertion that Moore “couldn’t con-
tinue . . . breaking the law by telling Ray Della Vella
where [the Respondent] was going.” Although that
statement was not alleged as an unfair labor practice, it
clearly sought to interfere with Moore’s protected right
to assist Della Vella’s organizational efforts.
Alternatively, even assuming that Wright Line is appli-
cable, we find the discharge unlawful under that frame-
work as well. For the reasons stated by the judge, we
agree that the General Counsel established a compelling
case that Moore’s union activity was a motivating factor
in Respondent’s decision to discharge Moore. Turning
to the Respondent’s rebuttal case, the Respondent claims
that it discharged Moore for his conduct on April 4,
which it characterizes as insubordination. But the Re-
spondent introduced no evidence that it has similarly
discharged other employees for like conduct. Thus,
again, at best the Respondent has done no more than ar-
ticulate a legitimate reason for its action; it has not
shown that it would have discharged Moore for that rea-
son even in the absence of his union activity. Hicks Oils
& Hicksgas, supra.

18 The complaint alleged an implied threat in Stevenson’s statement
to Moore that he was “acting childish and pledging the Union.” The
judge’s decision did not address that allegation, and the General Coun-
sel excepts. We have found, above, that the Respondent unlawfully
threatened Tandarich. The finding of an additional threat would not
materially affect the remedy and therefore would be merely cumulative.
Accordingly, we find it unnecessary to pass on the General Counsel’s
exception.
19 Atlantic Steel Co., 245 NLRB 814 (1979).
In sum, under either Atlantic Steel or Wright Line, we
affirm the judge’s conclusion that Moore’s discharge
violated Section 8(a)(3).
IV. APRIL 2002 ALLEGED INTERROGATION
OF JAMES KOREJKO
We have affirmed, above, the judge’s finding that the
Respondent violated Section 8(a)(1) by coercively inter-
rogating employee James Korejko on May 14, 2002.
The General Counsel additionally alleged that the Re-
spondent coercively interrogated Korejko sometime dur-
ing the week of April 6. The judge did not address this
allegation. We do so here.
Sometime during the week following the incident in
which Della Vella followed Korejko and Moore to the
Norwood worksite, Stevenson called Korejko into his
office. Stevenson asked him what he remembered about
the encounter with Della Vella. Korejko recounted what
had happened. Stevenson said that it was illegal for
Della Vella to have followed them, and he asked Korejko
to think about talking to the Respondent’s attorneys
about the incident and said that it may help the Respon-
dent with its case. Korejko told Stevenson that he would
think about it, and the conversation ended there. The
General Counsel argues that, under the totality of the
circumstances, this conversation was coercive, citing the
Respondent’s history of hostility toward the Union, Ste-
venson’s high rank in the Company, the fact that the con-
versation took place in Stevenson’s office, and Korejko’s
less than candid response. See Rossmore House, 269
NLRB 1176 (1984), affd. sub nom. HERE Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). We are persuaded
by the General Counsel’s analysis, and we find the
8(a)(1) violation as alleged.
ORDER
The National Labor Relations Board orders that the
Respondent, Network Dynamics Cabling, Inc., West
Chester, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting IBEW Local 98, or any
other union.
(b) Coercively interrogating employees about their un-
ion support or union activities, or the union support or
activities of fellow employees.
(c) Engaging in surveillance of employees’ union or
other protected concerted activities.
(d) Making threats to employees that reasonably tend
to interfere with, restrain, or coerce them in the exercise
of their Section 7 rights.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1430
(e) Offering or promising wage increases, promotions,
or other benefits to employees to discourage union activ-
ity.
(f) Transferring employees to other work sites because
they have engaged in union activity.
(g) Refusing to assign work to employees because of
their union activity.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Brian Tandarich and Thomas Moore full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Brian Tandarich and Thomas Moore 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 judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any references to the unlawful transfer of
David Hughey and the unlawful discharges of Brian
Tandarich and Thomas Moore and, within 3 days there-
after, notify them in writing that this has been done and
that the transfer and discharges 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 desig-
nated 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, neces-
sary 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 West Chester, Pennsylvania office copies of the at-
tached notice marked “Appendix.”20 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s author-
ized 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

20 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since June 16,
2001.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
It is further ordered that the complaint is dismissed in-
sofar as it alleges violations of the Act not specifically
found.
MEMBER SCHAUMBER, dissenting in part.
Although I join my colleagues in the disposition of
many of the allegations involved in this case, I disagree
with their decision in the following respects. Contrary to
my colleagues, I find that the Respondent (1) did not
violate Section 8(a)(1) by interrogating Brian Tandarich
on January 8 and 15, 2002; (2) did not violate Section
8(a)(3) by discharging Tandarich on January 16, 2002;
and (3) did not violate Section 8(a)(1) by interrogating
David Hughey in June 2001. Finally, as noted above, I
find it unnecessary to pass on whether the Respondent
unlawfully interrogated James Korejko on May 14, 2002,
because such a finding is cumulative and would not ma-
terially affect the remedy.
I. ALLEGATIONS INVOLVING BRIAN TANDARICH
A. Interrogations on January 8 and 15, 2002
On October 15, 2001, employee Brian Tandarich met
with Company Attorney Christopher Murphy and exe-
cuted an affidavit concerning a charge filed by Local 98.
The affidavit contained the required Johnnie’s Poultry
safeguards.1 On January 8, 2002, Murphy met again
with Tandarich and requested that he supplement his
previous affidavit with additional information. The
judge found that Murphy told Tandarich that his partici-
pation would not result in any benefit or punishment
from the Respondent, and Tandarich signed and dated a
statement on the October 15 affidavit affirming that he
read the document and that its contents were true. Thus,
Tandarich was fully apprised of the Johnnie’s Poultry
safeguards at the January 8 interview.
Murphy took notes during the interview to add to the
affidavit, and he asked Tandarich to come into the Com-

1 Johnnie’s Poultry Co., 146 NLRB 770 (1964).
NETWORK DYNAMICS CABLING 1431
pany office the next day to review the document and
make any changes. Tandarich returned and reviewed the
affidavit, but he refused to sign it without having it re-
viewed by his father or another attorney. Murphy
agreed, and he arranged to meet with Tandarich and his
father the following week, as Tandarich requested.
On January 15, the day of the scheduled meeting,
Murphy was unavailable, so attorney Michael Lignowski
met with Tandarich and his father. They reviewed the
document, and Tandarich made certain changes. Tanda-
rich specifically testified that Lignowski did not pressure
him to sign the document; rather, Lignowski stated that
he would bring the proposed changes back to Murphy.
Sometime during the interview, Tandarich got up unan-
nounced, walked into the lobby with the draft affidavit,
and gave it to a union representative.
The record does not support the judge’s findings that
the Respondent’s actions at these meetings were coercive
and unlawful. Tandarich received Johnnie’s Poultry
assurances on January 8. Although the judge found that
Tandarich protested that he did not want to be involved,
such protests are not in the record.2 The judge further
stated that Murphy “continued to seek [Tandarich’s] sig-
nature on an affidavit,” but Tandarich testified that he
had no recollection that Murphy tried to force him to sign
the affidavit on January 8, and he stated that Lignowski
did not pressure him to sign it on January 15. Although
the judge found that Murphy refused to allow Tandarich
to review the draft with persons of his choosing, Murphy
agreed to Tandarich’s request and allowed Tandarich’s
father to review the document on January 15. As I dis-
agree with the judge’s underlying findings, I disagree
with his conclusion that these interviews were unlawful.
I further disagree with the judge that Lignowski was
required to repeat the Johnnie’s Poultry assurances at the
January 15 meeting. Tandarich specifically requested the
meeting, a continuation of the January 8 interview, to
review the affidavit with his father. The affidavit they
reviewed included the Johnnie’s Poultry language that
Tandarich heard and read at the January 8 meeting.
Moreover, Tandarich stated that he was not forced or

2 Murphy testified that Tandarich’s “only concern arose early in
the—in the interview, when he said—he expressed his—his unwilling-
ness to be involved in the case.” In my view, Tandarich’s generalized
desire not to be involved in litigation is not a protest or an indication
that he was unlawfully coerced into cooperating with the Respondent.
Murphy testified, immediately before the above statement, that Tanda-
rich “never objected or expressed any concern with respect [to] the
issues I was asking him about.” Moreover, Tandarich voluntarily re-
turned to the Respondent’s office to review and edit the affidavit, and
he voluntarily appeared a few days later, with his father, to review the
corrected document. I find that Tandarich’s actions reflect voluntary
cooperation, not coercion.
coerced to sign the affidavit at the meeting. In my view,
requiring Lignowski to reiterate the Johnnie’s Poultry
language would elevate form over substance.
In short, the record does not support the judge’s and
the majority’s findings that the Respondent coercively
interrogated Tandarich on January 8 and 15, 2002. I find
the interviews lawful, and thus I would dismiss this alle-
gation.
B. Tandarich’s Discharge
The day after Tandarich gave the Union the draft affi-
davit, he was called into the Respondent’s office and
discharged for insubordination. I would find that the
Respondent acted with just cause in response to Tanda-
rich’s defiant act, and thus I would dismiss the allegation
that the Respondent’s decision violated Section 8(a)(3).
At the January 15 meeting, Tandarich never requested
a copy of the affidavit or requested that he be allowed to
review it with a union representative. I do not find that
Tandarich had an absolute right to retain a copy of the
unfinished draft affidavit, and Murphy specifically told
him that he could not have a copy of the unsigned draft.
Thus, I find that his decision to walk off with the docu-
ment without even raising the issue with the Respondent
was an act of insubordination.
Nor do I find Gerbes Super Markets, 176 NLRB 11
(1969), on which the judge and the majority rely, to the
contrary. Gerbes stands for the general proposition that
an employee may place reasonable conditions on his
willingness to cooperate with an employer’s investiga-
tion. In that case, the only condition the employee made
was a specific request for a copy of notes taken during
his interview, a request that the employer flatly denied.
The request came on advice from counsel that the em-
ployee protect himself from anything the employer might
use against him or the union, and it reflected “a sustained
effort” by the employer to coerce employees into giving
up the union. Id. at 13. Under those circumstances,
where the employee sought to protect himself from the
employer’s coercion, the Board found that the em-
ployee’s “misconduct,” i.e., keeping a copy of the inter-
view notes, was justified.
In contrast to Gerbes, the Respondent here agreed to
all of Tandarich’s reasonable requests regarding the affi-
davit. As discussed above, Tandarich did not feel co-
erced or threatened at the January 15 meeting; indeed,
the meeting occurred at his request. Under these circum-
stances, Tandarich’s decision to walk off with the draft
affidavit, without requesting a copy or discussing such a
request with the Respondent, was unwarranted and un-
protected. Thus, I would find that he was lawfully dis-
charged for just cause.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1432
II. ALLEGED INTERROGATION OF DAVID HUGHEY
On or about June 16, 2001, the Union notified the Re-
spondent that Hughey was a volunteer organizer.
Hughey began wearing a Local 98 hat to work, and he
distributed handbills at several nonwork locations at the
worksite. A few days later, when Hughey met with Todd
Stevenson, the Respondent’s director of operations, Ste-
venson, testified that Hughey raised the issue of union
support, and Stevenson responded by asking him why he
supported the Union. Although my colleagues adopt the
judge’s finding that Stevenson’s question was violative, I
cannot.
In Rossmore House, 266 NLRB 1176 (1984), cited by
the judge, the Board explicitly rejected a per se rule re-
garding an employer’s questioning open and active union
supporters about their union sentiments. Id. at 1177.
The Board found no violation where, as here, the em-
ployer received news of an employee’s union support
and responded by asking him why. Hughey was a
known union supporter, and he openly discussed his sup-
port with Stevenson during their meeting. Under these
circumstances, I do not find that Stevenson coerced or
intimidated Hughey simply by asking him to explain why
he supported the Union. Thus, I would dismiss this alle-
gation.
In conclusion, for the reasons stated above, I disagree
with my colleagues’ findings of the foregoing violations.
Thus, I respectfully dissent in part.
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting IBEW Local 98, or
any other union.
WE WILL NOT coercively interrogate employees about
their union support or union activities, or the union sup-
port or activities of fellow employees.
WE WILL NOT engage in surveillance of employees’
union or other protected concerted activities.
WE WILL NOT make threats to employees that reasona-
bly tend to interfere with, restrain, or coerce them in the
exercise of their Section 7 rights, stated above.
WE WILL NOT offer or promise wage increases, promo-
tions, or other benefits to employees to discourage union
activity.
WE WILL NOT transfer employees to other work sites
because they have engaged in union activity.
WE WILL NOT refuse to assign work to employees be-
cause of their union activity.
WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce employees in the exercise of the
above-stated rights guaranteed them by Section 7 of the
Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Brian Tandarich and Thomas Moore full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Brian Tandarich and Thomas Moore
whole for any loss of earnings and other benefits suffered
as a result of our discrimination against them, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful transfer of David Hughey and the unlawful dis-
charges of Brian Tandarich and Thomas Moore, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that the transfer and discharges
will not be used against them in any way.
NETWORK DYNAMICS CABLING, INC.
Bruce G. Conley and Noelle M. Reese, Esqs., for the General
Counsel.
Christopher J. Murphy and Robert C. Nagle, Esqs. (Harvey,
Pennington, Cabot, Griffith and Renneisen, Ltd.), of Phila-
delphia, Pennsylvania, for the Respondent.
Richard C. McNeill Jr., Esq. (Sagot, Jennings and Sigmond), of
Philadelphia, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on January 21–23 and
February 3, 2003. The charges were filed between June 27,
2001, and July 23, 2002, and complaints were issued as a result.
These cases were consolidated for hearing in October 2002.
The Union, IBEW Local 98, tried to organize Respondent
Networks Dynamics Cabling (NDC) in 1996 and unsuccess-
fully tried to convince NDC to sign a collective-bargaining
agreement with it. This case, however, centers around the Un-
NETWORK DYNAMICS CABLING 1433
ion’s successful efforts in 2001 and 2002 in persuading several
NDC employees to join Local 98 and NDC’s discharge of two
of these individuals, Brian Tandarich, who it contends was a
statutory supervisor, and Thomas Moore. The case also in-
volves the removal of union supporter David Hughey from a
jobsite and other efforts NDC allegedly made to discourage its
employees from supporting the Union, such as interrogations,
surveillance and the granting of wage increases.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Network Dynamics Cabling, Inc. (NDC)
installs low voltage cabling, such as telephone and computer
lines, at its customers’ places of business. It has an office in
West Chester, Pennsylvania, from which it annually performs
services valued in excess of $50,000 outside the Common-
wealth of Pennsylvania. Respondent admits, and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union, Local 98 of
the IBEW, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Transfer of David Hughey from the UPS
Philadelphia Airport Project to Jobsites more Remote from
his Residence (Docket 4–CA–30474)
From May 2001 through early 2002, Respondent was en-
gaged in installing low-voltage cables at a United Parcel Ser-
vice facility at the Philadelphia Airport. Initially, the highest
ranking NDC employee on this project on a daily basis was
John Czyzewski, whose title was “senior supervisor.”2 In May
and June 2001, the members of the NDC crew at this site,
Czyzewski, Brian Tandarich, also a “senior supervisor,” Tim
Faddis, and David Hughey, technicians, met twice with Ray-
mond Della Vella, a business agent and organizer for the Un-
ion. On the second occasion Bobby Morone, owner of Enter-
prise Cable Group, a signatory contractor, also met these em-
ployees.
Shortly thereafter, Czyzewski placed several union handbills
on NDC equipment at the site and on the back window of
NDC’s van. He quit his employment and went to work for
Enterprise Cable.
On or about June 16, David Hughey began wearing a Local
98 cap to work. The Union notified NDC that Hughey was a
volunteer organizer for it the same day. The next day Hughey

1 The General Counsel’s motion to correct the transcript, which is at-
tached to his posthearing brief, is granted. [Errors have been noted and
corrected.]
2 The parties agree that NDC employees with the title of “supervi-
sor” are employees, not supervisors within the meaning of Sec. 2(11) of
the Act. The parties disagree as to whether a “senior supervisor” is an
employee or statutory supervisor, or at least as to the status of Brian
Tandarich between June 2001 and January 2002.
placed union handbills on the tables in the cafeteria/break room
that was used by both NDC and UPS employees. Brian Tanda-
rich, now the ranking onsite NDC employee, took some of the
handbills to the UPS security office. An UPS security em-
ployee told Tandarich that UPS did not want Hughey to work
on its property. Tandarich called Todd Stevenson, NDC’s di-
rector of operations, to inform Stevenson about what had tran-
spired and Stevenson directed Tandarich to bring Hughey back
to the Company’s West Chester office.
When Hughey returned to NDC’s office, Stevenson asked
him why he was joining the Union. Hughey explained to Ste-
venson that he was joining the Union to obtain a higher wage. I
find that Hughey either expressly or impliedly informed Ste-
venson that by joining the Union he intended to quit his job
with NDC and take a job with a signatory contractor. After-
wards, Stevenson offered to promote Hughey to supervisor and
give him a $2-an-hour wage increase.
Hughey returned to work at the Airport site the next day, but
the following day NDC assigned him to different site and on
the third day sent Hughey to a UPS facility in Allentown, Penn-
sylvania, to work with Supervisor Jim Korejko. After Allen-
town, NDC assigned Hughey and Korejko to a UPS project in
Wilkes-Barre. NDC concedes that it transferred Hughey from
the Airport site because he distributed union literature at the
project and contends that it did so at the request of UPS secu-
rity personnel. Hughey had a 45-minute commute to the Air-
port site and over a 2-hour commute to the NDC projects he
worked on after his transfer. Other NDC employees also rou-
tinely commuted two hours or more to get to projects outside of
the Philadelphia metropolitan area.
On July 16, before Hughey and Korejko left Respondent’s
shop to go to Wilkes-Barre, Todd Stevenson and Mark Bianco,
Respondent’s operations manager, asked Korejko to keep an
eye on Hughey and report to them if anyone from the Union
showed up at the jobsite. On their way from the Philadelphia
area to the Wilkes-Barre project, Korejko and Hughey pulled
into a rest stop on the Pennsylvania Turnpike. There they en-
countered Union Business Agent Della Vella, who went inside
the rest stop and tried to convince Korejko to join the Union.
Korejko reported this encounter to Todd Stevenson. On July
18, Hughey resigned his employment at NDC. Three days
later, Hughey began working for Enterprise Cable.
B. Analysis
Section 7 of the Act protects David Hughey’s right to dis-
tribute union literature on UPS property, Southern Services,
300 NLRB 1154 (1990), enfd. 954 F.2d 700 (11th Cir. 1992).
This right is not extinguished by objections to such distribution
by UPS’s security personnel, Virginia Electric & Power Co.,
260 NLRB 408, 409 (1982); Mauka, Inc., 327 NLRB 803
(1999). Therefore, NDC violated Section 8(a)(3) and (1) in
removing Hughey from the UPS airport jobsite—even assum-
ing that it did so merely to placate UPS.
Moreover, the violation is neither negated nor mitigated by
the fact that other NDC employees also were required to work
several hours from Philadelphia. The UPS jobsite was desir-
able to Hughey and other employees precisely due to its prox-
imity to their residences. Respondent concedes that it removed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1434
Hughey from the UPS airport project because of his distribution
of union literature. In so doing it clearly discriminated against
Hughey for his union activities.
Whether interrogation by a supervisor violates Section
8(a)(1) depends upon whether under the circumstances, it rea-
sonably tends to restrain, coerce or interfere with rights guaran-
teed by the Act, Rossmore House, 269 NLRB 1176 (1984). I
find that Stevenson violated the Act by asking Hughey why he
supported the Union. Even though Hughey was an open union
supporter, the question was coercive in that it was asked in
conjunction with Respondent’s illegal removal of Hughey from
the UPS airport jobsite.
On the other hand, I conclude that NDC did not violate Sec-
tion 8(a)(1) in offering David Hughey a $2-per-hour wage in-
crease. In evaluating such an increase the Board applies the
test in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(lst Cir. 1981). The General Counsel must show the increase
was motivated by the employer’s antiunion animus, i.e., its
desire to interfere, restrain, or coerce employees in the exercise
of their Section 7 rights. Once the General Counsel has proved
its prima facie case, an employer may establish as an affirma-
tive defense, i. e., a legitimate business reason for the timing of
the increase, Holly Farms Corp., 311 NLRB 273, 274 (1993);
Clock Electric, Inc., 338 NLRB 806 (2003).
I find that Respondent established that it had a legitimate
reason for offering Hughey a wage increase, i.e., retaining him
as an employee. At the time that Stevenson offered Hughey a
raise, there is no evidence that the Union was seeking to make
NDC a signatory contractor. All of its efforts were focused on
convincing NDC employees leave NDC, join the Union and
work for another contractor that had a collective-bargaining
relationship with it. Under these circumstances, I conclude that
NDC had a legitimate reason to induce Hughey to continue
working for it by offering him a raise.
Finally, I find that Respondent violated Section 8(a)(1) in
asking James Korejko on or about July 16, 2001, to report any
contact with the Union at the Wilkes-Barre project. I credit
Korejko’s uncontroverted testimony and find that Respondent
violated the Act by asking him to spy on Hughey’s union ac-
tivities, Alliance Rubber Co., 286 NLRB 645, 658 (1987).
NDC contends that this allegation in barred by Section 10(b) of
the Act in that it was first raised in an amended complaint filed
on September 25, 2002, over a year after the event in question.
The General Counsel argues that the allegation is not barred
by Section 10(b) in that it is closely related to the charge filed
December 11, 2001, which alleged that Respondent violated the
Act by transferring Hughey from the airport site, offering him a
raise and interrogating employees about their union activities.
The Board has allowed litigation of untimely allegations if they
are closely related to the allegations of a timely-filed charge,
Columbia Textile Services, 293 NLRB 1034, 1036 fn. 13
(1989); Redd-I, Inc., 290 NLRB 1115, 1118 (1988). I conclude
that the complaint allegation is sufficiently related to the charge
to withstand a challenge on the 10(b) grounds. It is sufficiently
related in that all these allegations concern NDC’s response to
Hughey’s union activities in June and July 2001.
C. Allegations Relating to Brian Tandarich Including
Unlawful Wage Increase, Interrogation and his
January 16, 2002 Discharge (Docket 4–CA–31007)
NDC hired Brian Tandarich in February 1997 and concedes
that he was an excellent worker throughout his employment. In
May 1998, Tandarich was promoted from technician to “super-
visor.” In February 2001, the anniversary date of his hiring,
NDC gave Tandarich his annual performance evaluation. He
was give a wage increase from $16.25 per hour to $17.75 per
hour and was given the title “senior supervisor.”
Respondent did not give Tandarich a written position de-
scription when it promoted him to “supervisor” or “senior su-
pervisor.” The company did not give him any additional oral
instructions or training upon his promotion to senior supervisor.
In this capacity, Tandarich performed essentially the same tasks
that he performed as a “supervisor.” Ninety percent of his day
was spent performing manual labor and ten percent performing
administrative functions, such as filling out employees’ time-
sheets.
Both as a “supervisor” and a senior supervisor, Tandarich
was often the highest-ranking NDC employee on the jobsite.
At these sites he often told employees what particular tasks
they would be performing after receiving instructions from
either his project manager or a customer’s representative as to
the sequence in which work should be performed. Tandarich
also filled out written evaluations regarding the performance of
employees on these jobsites.
When John Czyzewski resigned his employment with NDC,
Tandarich became the ranking NDC employee on the UPS
Airport project. In this capacity he was generally in charge of a
crew of four, but at times was in charge of as many as 12 em-
ployees. Prior to Czyzewski’s departure, Tandarich, although a
“senior supervisor,” had no administrative or supervisory re-
sponsibilities on the project. On June 13, 2001, just after
Czyzewski’s departure, NDC gave Tandarich a raise from
$17.75 to $19 per hour.3
On October 15, 2001, Christopher Murphy, NDC’s counsel,
interviewed Tandarich concerning an unfair labor practice
charge filed by the Union in connection with David Hughey’s
transfer. Tandarich executed an affidavit (R. Exh. 2). In late
November 2001, Tandarich renewed his contacts with the Un-
ion. He asked Business Agent Ray Della Vella if he could still
join. Della Vella told Tandarich he could if he would pass out
union handbills and wear a Local 98 hat.
Murphy met with Tandarich again at NDC’s office on Janu-
ary 8, 2002, with a view to having Tandarich sign another affi-
davit regarding his knowledge regarding the charge in Case 4–

3 Tim Faddis, another NDC employee at the UPS Airport site was
also given a wage increase of $1.25 per hour on June 28, 2002, and
promoted to “supervisor.” This was within a month of Czyzewski’s
departure and Hughey’s overt union activity. The General Counsel
sought to amend the complaint on the last day of hearing to allege that
Faddis’ wage increase violated Sec. 8(a)(1). I denied that motion but
allowed the General Counsel to argue that Faddis’ raise, which did not
correspond to the anniversary of his date of hire, or a performance
evaluation, supported the complaint allegation that Tandarich’s June 13
wage increase violated the Act.
NETWORK DYNAMICS CABLING 1435
CA–30474 (the Hughey matter). Murphy told Tandarich that
there would be neither any benefit nor punishment resulting
from the interview. Although Murphy stated that Tandarich’s
participation in the interview was voluntary, he conveyed pre-
cisely the opposite impression.4 Despite Tandarich’s protesta-
tions that he didn’t want to be involved in the case, Murphy
continued to seek his signature on an affidavit and asked Tan-
darich about his contacts with Ray Della Vella. He responded
to Tandarich’s concerns by telling him that “you know, you’ve
been injected in it, or your name’s been brought into it; and it’s
really not us who’s bringing you into it. It’s not the Company
. . . .” (Tr. 546–547.)
Moreover, Tandarich tried to condition his participation in
the preparation of the affidavit upon his being given the oppor-
tunity to review it with a third party; Murphy and NDC refused
to allow him to take a copy of the draft. At this January 8
meeting, Tandarich reaffirmed his October statement and Mur-
phy began working on a supplemental and more detailed affi-
davit. At Tandarich’s request, Murphy agreed to meet Tanda-
rich and his father at a Bob Evans restaurant. Due to a conflict
in Murphy’s schedule, attorney Michael Lignowski met Brian
and Bernard Tandarich at Bob Evans on January 15, 2002.
Lignowski explained that he was investigating a charge filed
by the Union against NDC. Lignowski did not indicate to
Brian Tandarich that he could refuse to co-operate with him if
he so desired. He then gave Brian and Bernard a copy of an
affidavit stamped “draft.” Lignowski’s copy was not stamped
“draft.” Lignowski discussed concerns that one or both had
with certain portions of the affidavit. After awhile, Brian Tan-
darich got up from the table with his copy of the affidavit and
went out to the restaurant lobby. He returned wearing a Local
98 hat and without the document, which he had given to Ray
Della Vella. Lignowski left the restaurant.
The next day, Todd Stevenson, then NDC’s director of op-
erations, fired Brian Tandarich ostensibly for giving a copy of
the affidavit to the Union. Tandarich began working for a sig-
natory contractor the following day. On or about March 20,
2002, NDC sent Tandarich a letter threatening to prosecute him
if he failed to return certain items of company property, includ-
ing a rotary hammer and power saw. There is no credible evi-
dence that Tandarich possessed any of these items. The Union
responded by letter informing Todd Stevenson that Tandarich
had possession of one NDC ladder and that Stevenson could
make arrangements with the Union for its return.5
D. Analysis of Allegations Relating to Brian Tandarich
Respondent has not Established that Brian Tandarich
was a Supervisor Within the Meaning of
Section 2(11) of the Act
I would dismiss most, if not all, of the General Counsel’s al-
legations regarding Brian Tandarich, if, I were to find, as Re-
spondent contends, that Tandarich was a supervisor within the

4 Respondent contends that Tandarich was a statutory supervisor and
that therefore it was entitled to insist upon his co-operation in its inves-
tigation of the Union’s charges.
5 Complaint par. 5 in Docket 4–CA–31194 & 31198 (GC Exh. 1(bb)
alleges that NDC’s letter violated Sec. 8(a)(1).
meaning of Section 2(11) of the Act. Thus, I address this issue
before addressing the specific violations alleged with regards to
Tandarich. Pursuant to Section 2(3) of the Act, “supervisors”
are not employees and are generally not protected by the Act.
However, an employee’s title is not controlling and often is
only marginally relevant in determining whether one is a statu-
tory supervisor.
Section 2(11) of the Act, defines “supervisor” as “any indi-
vidual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.”
While some of the testimony related to the duties of an NDC
“senior supervisor,” I conclude that the issue of Tandarich’s
status must be analyzed with regard to the authority invested in
him, rather than in “senior supervisors” generally. It may be
that some “senior supervisors” were statutory supervisors and
others were not. In this regard, the record establishes that some
NDC “senior supervisors” received a written job description
and others, including Tandarich, did not. Some “senior super-
visors” may have received oral instructions regarding their
authority, but Tandarich did not.
There is no evidence that Tandarich had the authority to hire,
transfer, suspend, lay off, recall, promote, discharge, reward or
discipline other employees, or adjust their grievances. He did
direct employees at the UPS airport jobsite to some extent.
There is also no credible evidence that Tandarich had the au-
thority to effectively recommend discipline or any of the other
statutory factors. Indeed, the record indicates that when Tanda-
rich was unhappy with the punctuality of several employees at
the airport jobsite, he had to go to Todd Stevenson to get any-
thing done about this problem.
The only distinction that Respondent has established be-
tween Tandarich and other nonsupervisors is that he was the
senior NDC onsite representative on a relatively large project.
The size of the project does not make Tandarich a supervisor
unless he had the type of authority that is delineated in the stat-
ute.
A party seeking to exclude an individual from the category
of an “employee” has the burden of establishing supervisory
authority. The exercise of independent judgment with respect
to any one of the factors set forth in Section 2(11) establishes
that an individual is a supervisor. However, not all decision-
making constitutes the independent judgment necessary to es-
tablish that an individual is a statutory supervisor. The fact that
an individual gives direction to other employees without first
checking with a higher authority, does not necessarily make
one a supervisor. For example, an individual does not neces-
sarily become a supervisor in situations in which his authority
to direct employees emanates solely from his skill or experi-
ence, Southern Bleachery & Print Works, Inc., 115 NLRB 787,
791 (1956), enfd. 257 F.2d 235, 239 (4th Cir. 1958). More-
over, the exercise of supervisory authority of an irregular and
sporadic basis is not sufficient to establish supervisory status,
Browne of Houston, 280 NLRB 1222, 1225 (1986).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1436
In John N. Hansen Co., 293 NLRB 63, 64 (1989), the Board
found that David Gillespie was not a supervisor. Gillespie
monitored employees’ attendance and signed their timecards.
He exercised authority to adjust employees’ work assignments
within the limits of instructions from his employer. Gillespie
interviewed job applicants that his employer had tentatively
decided to hire. However, the Board found that Gillespie’s
direction and assignment of routine work did not entail the
exercise of independent judgment within the meaning of Sec-
tion 2(11).
In Chicago Metallic Corp., 273 NLRB 1677 (1985), enfd. in
relevant part 794 F.2d 527 (9th Cir. 1986), the Board similarly
found that Ralph Picazzo was not a supervisor. Picazzo re-
viewed the performance of other machine operators and graded
them on an evaluation form. He made overtime assignments at
his discretion from a list of eligible employees. Likewise, in
Browne of Houston, supra, the Board found that Doyle
Womack was not a supervisor. Womak exercised the authority
to transfer employees to different tasks for short periods of
time. In this respect, his authority was not unlike that of Tan-
darich. Womack had the authority to shift employees from one
production line to another if the line they were working on was
slow or shutting down. Womack also interviewed job appli-
cants and advised his superiors with regard to the applicants’
experience.
More recently, the Board in Azusa Ranch Market, 321 NLRB
811 (1996), found that Steve Virgen was not a supervisor.
Virgen, who worked in a grocery store, assigned other employ-
ees to the tasks of filling the milk cooler, stocking shelves,
sweeping, and cleaning. He would at times take employees off
a cash register to do other tasks. Virgen was in charge of the
store for several hours each day after the general manager went
home. When the general manager left, Virgen could decide to
let employees leave early and use their leave. He was con-
sulted about the job performance of other employees. Finally,
although employees were entitled to a break every 2 hours,
Virgen decided when, within that time period, an individual
employee would take his or her break. Also see Green Acres
Country Care Center, 327 NLRB 257 (1998).
There is no evidence that Tandarich considers the relative
skills of employees in shifting them from one task or crew to
another. This is another indication that his authority is so rou-
tine that it cannot be relied upon to deem him a statutory super-
visor, J. C. Brock Corp., 314 NLRB 157, 158 (1994). Simi-
larly, the fact that Tandarich is solicited for his opinion regard-
ing the work performance of other employees does not establish
his supervisory status, particularly since there is no indication
that his opinion is determinative regarding any personnel ac-
tion, Adco Electric, 307 NLRB 1113, 1125 (1992). Tandarich’s
primary function involved physical participation in the produc-
tion or operating processes of NDC’s business. He incidentally
directed the movements and operations of less skilled employ-
ees. He had a close community of interest with these less ex-
perienced coworkers and thus, I find that Respondent has not
established that Tandarich was a supervisor, Southern Bleach-
ery & Print Works, supra.
E. Specific Allegations Relating to Tandarich
The June 13, 2001 Wage Increase
Whether Tandarich’s June 13, 2001 raise was unlawful turns
on proof of Respondent’s motivation. Under the Wright Line
causation test, the General Counsel bears the initial burden of
showing that the raise was motivated, at least in part, by anti-
union considerations. The General Counsel can meet this bur-
den by showing that employees were engaged in union activity,
that the employer was aware of the activity, that the employer
harbored animus towards the union or union activity and that
the allegedly violative personnel action was caused by anti-
union animus. Once this showing is made, the burden shifts to
the respondent to demonstrate that the same action would have
taken place even in the absence of protected conduct, Clock
Electric, Inc., 338 NLRB No. 10 (2003) (not reported in Board
volumes). The employer must show a legitimate nondiscrimi-
natory reason for the timing of the increase, Holly Farms Corp.,
311 NLRB 273, 274 (1993).
In the instant matter, there is no evidence that Respondent
was aware that Tandarich had engaged in any union activity
when it gave him the wage increase. It was aware that John
Czyzewski had engaged in union activity at the UPS airport
jobsite. From this record, I conclude that NDC gave Tandarich
his raise before it was aware of David Hughey’s union activi-
ties. Given Respondent’s removal of Hughey from the airport
site, I conclude that Respondent harbored animus against the
Union and employees who supported the Union. However, in
the absence of any evidence that it was aware of Tandarich’s
interest in the Union, I find that the General Counsel has failed
to prove that the June 13 raise was motivated by antiunion ani-
mus and I credit Respondent’s explanation that the raise was
given to compensate Tandarich for the fact that he had just
become the ranking onsite NDC employee on a large jobsite. I
therefore dismiss this allegation of the complaint.
F. Respondent, by Counsel, Violated Section 8(a)(1) in
Interrogating Tandarich on January 8 and 15, 2002
An employer or its agent may interrogate an employee to re-
spond to an unfair labor practice charge, or prepare for litiga-
tion of a charge only if affords the employee specific safe-
guards against coercion. The employer must communicate to
the employee the purpose of the questioning, assure him that no
reprisal will take place and obtain his participation on a volun-
tary basis. The questioning must occur in a context free from
hostility to union organization and must not be itself coercive in
nature. The questions must not pry into other union matters,
elicit information concerning an employee’s subjective state or
mind or otherwise interfere with the statutory rights, Johnnie’s
Poultry Co., 146 NLRB 770 (1964). If these safeguards are not
afforded to the employee, the interrogation violates Section
8(a)(1).
I find that Respondent’s counsel Christopher Murphy vio-
lated Section 8(a)(1) by insisting that Brian Tandarich continue
in the preparation of an affidavit or certification after Tandarich
made it clear that he did not want to continue doing so. I also
find that Tandarich’s participation in the affidavit process was
no longer voluntary when Respondent and Murphy refused to
NETWORK DYNAMICS CABLING 1437
allow him to review a draft with persons of his choosing, in-
cluding the Union. I find that Tandarich’s insistence of review-
ing the draft with persons of his choosing was not unreasonable
and that he had a right to refrain from assisting Respondent if
this condition was not met, Gerbes Super Markets, 176 NLRB
11 (1969).
Lignowski also failed provide Tandarich with the required
safeguards at the Bob Evans Restaurant meeting of January 15.
Lignowski did not assure Tandarich that he could choose not to
discuss the charge or provide the affidavit if he did not want to
do so. Since Murphy had by his conduct on January 8 effec-
tively insisted on Tandarich’s cooperation, it was incumbent on
Lignowski to wipe the slate clean insofar as the Johnnie’s Poul-
try requirements were concerned.
G. Respondent Violated Section 8(a)(3) and (1) by
Discharging Brian Tandarich on January 16, 2002
Respondent fired Brian Tandarich the day after it discovered
that he joined the Union. The circumstances of his discharge
satisfy the General Counsel’s initial burden of showing anti-
union animus and discriminatory motive. However, Respon-
dent argues that it has an affirmative defense in that Tandarich
disclosed confidential information and attorney work product
(R. Br. at p. 11).
First of all, the affidavit (GC Exhibit 14), does not contain
any confidential information. It consists solely of a recitation
of facts allegedly provided to Respondent’s counsel by Tanda-
rich himself regarding Tandarich’s knowledge of facts relating
to an unfair labor practice charge by the Union. Since the affi-
davit is purely factual its status as “attorney work product” is
questionable. The work product doctrine protects “against
disclosure of the mental impressions, conclusions, opinions or
legal theories of an attorney or other representative of a party
concerning litigation,” Mervin v. FTC, 591 F.2d 821, 825–826
(D.C. Cir. 1978); Powell v. U. S. Department of Justice, 584
F.Supp. 1508 (N. D. Cal. 1984). Nothing in the draft affidavit
Tandarich gave to the Union fits within the description above.
While some courts regard any statement taken by an attorney to
be work product, Convergent Technologies, 122 FRD 555
(N.D. Cal. 1988), others take a contrary view. In 1994, the
District Court in Alaska opined, “what a witness knows is not
the work of counsel,” Dobbs v. Lamonts Apparel, Inc., 155
FRD 650 (D. Alaska 1994).
Regardless of whether the draft affidavit can be properly
characterized as attorney work product, I find that Tandarich’s
sharing it with the Union does not establish an affirmative de-
fense for Respondent. He divulged to the Union either what he
knew about the charge in question or what Respondent wanted
him to say about the charge. He did not divulge any confiden-
tial business information or any of its attorney’s mental impres-
sions. I therefore conclude that NDC violated the Act in dis-
charging Tandarich on January 16, 2002.
H. Respondent did not Violate the Act in Sending
Tandarich a Letter Threatening to Prosecute
Him if he did not Return its Equipment
Respondent failed to establish that Tandarich possessed any
of the equipment it demanded that he return in its March 2002
letter. Its threat of prosecution therefore appears to be largely
motivated by its animus towards his union activities. However,
I find that the letter was not reasonably likely to interfere with,
restrain or coerce Tandarich in the exercise of his Section 7
rights. Tandarich had already quit his employment and was
working with a signatory contractor. The letter was unlikely to
have any impact on his continued support for the Union or his
assistance to the Union and the General Counsel in pursuing
unfair labor practice charges. The only impact it was likely to
have is to motivate him to return any equipment he did possess
or respond by informing NDC that their information was incor-
rect.
NDC’s alleged removal of Thomas Moore from the Arcadia
University jobsite; NDC’s alleged refusal to assign Moore work
on April 4 and 5, 2002; and NDC’s April 5, 2002 discharge of
Thomas Moore (Dockets 4–CA–31194 and 31198)
NDC hired Thomas Moore in May 2000. Moore was pro-
moted to “supervisor” in August 2001 and given a wage in-
crease to $15 per hour. On February 21, 2002, Moore signed a
union authorization card.
On March 20, 2002, NDC assigned Moore and fellow “Su-
pervisors” Tim Faddis, Kirk Moore, and Kevin Harris to the
Arcadia University project. Harris was reassigned to another
jobsite on April 1. On Tuesday, April 2, Thomas Moore dis-
tributed union flyers at the Arcadia worksite. Respondent’s
operations manager, Todd Stevenson, was aware that Moore
had done so. That afternoon Respondent’s operations manager,
Mark Bianco, called Moore and told him he would be working
on another jobsite the next day.
On Wednesday, April 3, Moore was assigned to work with
Jim Korejko on the Norwood Construction Company’s offices
in Cherry Hill, New Jersey. Moore contacted Union Business
Agent Ray Della Vella, who observed Korejko’s company van
on the Benjamin Franklin Bridge and followed Korejko and
Moore, who were in separate vehicles, to the Norwood jobsite.
Korejko notified Todd Stevenson, that he was being followed.
Upon arriving at the site, Della Vella tried to convince Korejko
to join the Union.
On the afternoon of April 3, Moore called Bianco to inquire
as to where he would be working the next morning.6 Bianco
told Moore he didn’t know yet and that Moore should report to
the NDC office. Moore asked about going back to the Arcadia
job. Bianco told him that Kirk Moore and Tim Faddis could
handle all the work that was available at Arcadia.7
On Thursday morning, April 4, 2002, Moore reported to Bi-
anco. Bianco told Moore that he did not have any work for him
that day and that he would have to take the day off. Moore
protested, saying that he had already had to take a day off in
January and another in March and that it was somebody else’s
turn to take a day off.8

6 Jim Korejko, now a union member, testified that there was not
enough work for two employees at Norwood on April 4, and that he so
advised Todd Stevenson.
7 Kirk Moore and Tim Faddis had greater seniority with NDC than
did Thomas Moore.
8 Moore used paid vacation or personal days on these occasions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1438
At some point Todd Stevenson joined in the conversation.
Stevenson told Moore that he was not the only employee being
forced to take days off due to lack of work. They then dis-
cussed several other employees’ work schedules. Moore asked
Bianco if he would be working on Friday, April 5. Bianco told
Moore he would have to call him later in the day. Moore and
Stevenson then had a very heated discussion. Stevenson re-
ferred to the call he had received from Jim Korejko the day
before about being followed to the Norwood site. He told
Moore that he could not keep telling Ray Della Vella where
NDC was working. Moore alleged that he was not being as-
signed work due to his union activities and asked Stevenson
several times whether he was being fired. At the end of the
discussion Moore left.9 Stevenson fired Moore the next day.
On Thursday, April 11, Moore began working for Newon
Communications, a signatory contractor.
I. Analysis of Allegations Regarding Thomas Moore
The General Counsel has not established a prima facie case
that the removal of Thomas Moore from the Arcadia worksite
or the Norwood worksite was discriminatory.
The record shows that although the Arcadia University pro-
ject was one of NDC’s larger project in March 2002, the man-
power requirements for the project were decreasing towards the
end of the month. Kevin Harris, one of the four “supervisors”
working on the project during the week of March 25, 2002, was
reassigned to another job on April 1. After Thomas Moore was
removed from the job on April 2, only two employees, both
senior to Moore, worked at Arcadia until April 18 (GC Exh.
28).
The General Counsel argues that I should draw an adverse
inference from Respondent’s failure to call Operations Manager
Mark Bianco as a witness. Bianco made the decision to remove
Moore from the Arcadia project and apparently still works for
NDC. I decline to infer that Bianco, if he had testified, would
have admitted that Thomas Moore was transferred from Arca-
dia for discriminatory reasons. Not only does Respondent’s
schedule indicate that this not the case, but the General Counsel
and/or the Charging Party could have called David Maston, the
Arcadia project manager as a witness. Maston now works one
of the Union’s signatory contractors. In sum, I find that the
General Counsel has failed to establish that Thomas Moore’s
removal from the Arcadia jobsite was discriminatory.
The General Counsel has likewise failed to prove that
Moore’s removal from the Norwood project after 1 day of work
on April 3 was discriminatorily motivated. Testimony from the
General Counsel’s witness, James Korejko, confirms that there
was insufficient work at Norwood for two employees on April
4.

9 Moore’s account and Stevenson’s account of the conversation dif-
fer significantly. Stevenson contends that Moore was screaming and
cursing him. Jason Ellmore, an NDC project manager who was laid off
in November 2002 testified that he heard the last 5 minutes of the con-
versation. He observed that both Moore and Stevenson were upset and
that Moore kept asking Stevenson if he was being fired. Ellmore did
not hear Moore scream at Stevenson or curse at him. I credit Ellmore’s
testimony and decline to credit Stevenson’s testimony that Moore
cursed at him or refused to leave NDC’s premises.
Finally, the General Counsel has not established that Re-
spondent’s failure to assign Moore to a job on Thursday, April
4, or Friday, April 5, was discriminatory. Respondent’s sched-
ule, General Counsel’s Exhibit 28 corroborates Jason Ellmore’s
testimony that NDC was having difficulty finding work for all
its employees in early April 2002. Moore was one of several
employees who were apparently not assigned work on April 4
and 5, including Supervisor John McCuollough, whose senior-
ity was greater than Moore’s.
J. NDC Violated Section 8(a)(3) and (1) by Terminating
Thomas Moore on April 5, 2002
The General Counsel has made a prima facie showing that
NDC’s termination of Thomas Moore was discriminatory.
NDC was aware of his union activity and harbored animus
towards any activity of its employees on behalf of Local 98.
Todd Stevenson was particularly upset at Moore because he
correctly deduced that Moore had told Ray Della Vella where
he and Korejko were going the day before. I also find that
Respondent’s disparate treatment of Moore, as compared to
Nick Leydet in November 1999 establishes discriminatory mo-
tivation with regards to Moore’s discharge. Despite the fact
that Leydet’s use of profanity had caused a customer to remove
an entire NDC crew from a jobsite, Stevenson, retained Leydet
as an employee. The timing of Moore’s discharge and the pre-
textual nature of Respondent’s explanation for the discharge
satisfy the General Counsel’s burden of proving discriminatory
motive. Respondent has not established an affirmative defense
that it fired Moore for nondiscriminatory reasons.
The only rationale that NDC offers for Moore’s discharge is
that his conduct on April 4, 2002, towards Stevenson was suffi-
ciently insubordinate to lose the protection of the NLRA. Re-
spondent has not shown this to be the case. All it has estab-
lished is that Moore had a 5–10 minute heated argument with
Stevenson about his lack of work assignments. Giving consid-
eration to the factors set forth in Felix Industries, 331 NLRB
144 (2000), I conclude that the nature of Moore’s outburst did
not forfeit the protection of the Act. This is particularly so
given his not unreasonable, although unproven, belief that he
was not being assigned work due to his union activity.
K. Alleged Coercive Interrogation of James Korejko by
Respondent’s Counsel (Docket 4–CA–31472)
On May 14, 2002, one of NDC’s attorneys in this case,
Robert Nagle, called James Korejko on the telephone. Todd
Stevenson had told Korejko that Nagle would be calling and
asked if he would speak to him; Korejko replied affirmatively.
Nagle told Korejko that he did not have to talk to him if he did
not want to do so. He also stated that Korejko would not be
rewarded or punished on account of his conversation with
Nagle. Korejko agree to talk to Nagle.
Nagle asked Korejko about his encounter with Ray Della
Vella on the way to the Norwood jobsite on April 3. He also
asked Korejko what they had discussed and whether Korejko
had felt harassed. Nagle then asked Korejko whether he had
talked to Della Vella since April 3. On July 19, 2002, Korejko
went on strike and started work a week later for a signatory
contractor.
NETWORK DYNAMICS CABLING 1439
L. Analysis of Allegations Regarding Korejko
I find that Respondent, by counsel, violated Section 8(a)(1)
during the May 14, 2002 interview with Korejko. While NDC
was perfectly justified in interrogating Korejko about the cir-
cumstances surrounding his phone call to Todd Stevenson and
Della Vella’s conduct on April 3, 2002, Respondent exceeded
the permissible bounds of inquiry set forth in Johnnie’s Poul-
try, supra. It did so when Nagle inquired into the subject matter
of Korejko’s conversation with Ray Della Vella and when it
asked Korejko whether he had any contact with Della Vella
after April 3, 2002.
CONCLUSIONS OF LAW
Respondent, Network Dynamics Cabling, Inc., violated:
1. Section 8(a)(3) and (1) by transferring David Hughey
from the UPS Philadelphia Airport project on or about June 20,
2001, to restrain and interfere with his union activities;
2. Section 8(a)(1) by asking Hughey why he supported the
Union on or about June 20, 2001.
3. Section 8(a)(1) by asking James Korejko to report on the
union activities of David Hughey on or about July 16, 2001.
4. Section 8(a)(1) by interrogating Brian Tandarich about
his union activities on January 8 and 15, 2002.
5. Section 8(a)(3) and (1) by discharging Brian Tandarich on
January 16, 2002.
6. Section 8(a)(3) and (1) by discharging Thomas Moore on
April 5, 2002.
7. Section 8(a)(1) by interrogating James Korejko on May
14, 2002.10

10 I dismiss the complaint allegations with regard to the following
8(a)(1) allegations:
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, 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 discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]

Paragraph 5(a) in Docket 4–CA–30474—I find that Todd Ste-
venson’s remark to David Hughey in June 2002, that he’d heard
that Ray Della Vella had been at one of NDC’s worksites does not
constitute a coercive interrogation under the criteria set forth in
Rossmore House, supra.
Paragraph 5(b) of Case 4–CA–31194 & 31198: Stevenson’s
remark to Thomas Moore in March 2002 that he’d heard that Ray
Della Vella had been at one of Respondent’s jobsites does not rise
to the level of a coercive interrogation.
Paragraphs 5(a) and 5(b) in 4–CA–31472: I credit Jason Ell-
more’s testimony that he never discussed any other employee’s
union activities with James Korejko in dismissing 5(a). With re-
gard to 5(b), I find that Stevenson’s discussions with Korejko on
April 3, were not coercive given the fact that they were in re-
sponse to Korejko’s call to Stevenson regarding an unidentified
person following him.