Peter Scalamandre & Sons

National Labor Relations Board - Board Decisions

Apr 12, 2000

330 N.L.R.B. 1191 (N.L.R.B. 2000)

PETER SCALAMANDRE & SONS, INC. 1191
Peter Scalamandre & Sons, Inc. and Sea Crest Con-
struction Corp. and Albert Christmann and
Rick Christmann. Cases 34–CA–8354 and 34–
CA–8369
April 12, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
On October 29, 1999, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed cross-exceptions, a supporting
brief, and an answering brief. The Respondent filed a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Peter Scalamandre & Sons,
Inc. and Sea Crest Construction Corp., Freeport, New
York, its officers, agents, successors, and assigns, shall
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.

Terri A. Craig, Esq., for the General Counsel.
Robert M. Ziskin, Esq. and Suzanne Harmon Ziskin, Esq., for
the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. This
case was tried in Hartford, Connecticut, on June 7 and 8, 1999.
Albert Christmann1 filed the charge in Case 34–CA–8354 on
April 29, 1998, and his son, Rick Christmann,2 filed the charge
in Case 34–CA–8369 on May 14, 1998. Both charges were
amended twice, in February and March 1999. Based on these
amended charges, the consolidated complaint was issued on
March 26, 1999, alleging that the Respondent, Peter Scalaman-
dre & Sons, Inc. and Sea Crest Construction Corp., a single
employer, violated Section 8(a)(1) and (3) of the Act. The Re-
spondent filed its answer on April 2, 1999, which was subse-
quently amended on May 17 and 24, 1999, denying that it
committed the unfair labor practices alleged.

1 No exceptions were filed to the judge’s dismissal of the allegation
that the Respondent unlawfully threatened Rick Christmann with ter-
mination in violation of Sec. 8(a)(1) of the Act.
2 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
In adopting the judge’s finding that the allegation that the Respon-
dent violated Sec. 8(a)(3) and (1) by terminating employee Albert
Christmann was not barred by Sec. 10(b), Member Brame does not rely
on Ross Stores, Inc., 329 NLRB 573 (1999).
Additionally, in adopting the judge’s finding that the General Coun-
sel has established a prima facie case that the Respondent’s discharge
of employee Rick Christmann violated Sec. 8(a)(3) and (1), Member
Brame finds it unnecessary to rely on statements by employees William
Leahy and Eric Beck.
On the entire record, 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
Peter Scalamandre & Sons, Inc. and Sea Crest Construction
Corp. (the Respondent) are New York corporations with offices
in Freeport, New York, where both are engaged as contractors
in the building and construction industry. The Respondent ad-
mits and I find that they constitute a single-integrated business
enterprise and a single employer within the meaning of the Act.
The Respondent annually purchases and receives at the Free-
port, New York facility goods valued in excess of $50,000
directly from points located outside the State of New York. The
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent admits and I find that International Union of
Operating Engineers, Local Union No. 138 and Local Union
No. 825 (Locals 138 and 825, respectively) are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The 10(b) Issue
The complaint alleges specifically that the Respondent,
through its alleged agent, William Leahy, on or about January
13, 1998, threatened employees with termination because they
were not members of a labor organization. The Respondent
moved to dismiss this allegation at the hearing on the grounds
that no timely filed charge supported this allegation. The Re-
spondent also denied that Leahy was its supervisor and/or
agent. The complaint further alleges that the Respondent termi-
nated Albert Christmann on November 26, 1997, because he
was not a member of Local 138, and that it terminated Rick
Christmann on February 13, 1998, because he was not a mem-
ber of Local 825. The Respondent moved to dismiss the allega-
tion regarding Al Christmann’s termination on the basis that the
charge alleged discrimination based on nonmembership in a
different labor organization. Although the Respondent admitted
terminating the Christmanns, it denied any unlawful motiva-
tion.
In Nickles Bakery of Indiana, 296 NLRB 927 (1989), the
Board held that the catchall “other acts” language preprinted on
the charge form does not provide a sufficient basis, on its own,
to support any and all 8(a)(1) complaint allegations. Such
1 The caption has been amended to reflect the correct spelling of the
Charging Party’s name.
2 See fn. 1, supra.
330 NLRB No. 170
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
8(a)(1) allegations must be closely related to the allegations or
subject matter set forth as the basis for the underlying charge.
The Board applies the same closely related test to both initial
complaints and amended complaints. See Redd-I, Inc., 290
NLRB 1115 (1988). This test is comprised of three factors: (1)
whether the complaint allegations involve the same legal theory
as the allegations in the charge; (2) whether the complaint alle-
gations arise from the same factual circumstances or sequence
of events as the charge allegations; and (3) whether a respon-
dent would raise similar defenses to both allegations. The
Board has recently re-affirmed this test, finding on facts similar
to those here that there was a sufficient factual nexus between a
timely filed 8(a)(3) discharge allegation and two untimely filed
8(a)(1) allegations of an amended charge. Ross Stores, Inc.,
supra.
The allegation regarding the statement attributed to Leahy
shares a common legal theory with the allegation that Rick
Christmann was discharged because of his nonmembership in a
labor organization. The specific statement alleged to be unlaw-
ful in the amended charge is relied on by the General Counsel
as evidence of the Respondent’s animus. The Board, in Ross
Stores, supra, found that this common aspect of animus was
sufficient to meet the Nickles Bakery and Redd-I test. In addi-
tion, the allegation of the amended charge clearly arises out of
the same factual circumstances and sequence of events as the
allegation regarding Rick Christmann’s discharge. Because the
statement is relied on by the General Counsel as proof of the
Respondent’s animus and motivation, the Respondent is likely
to raise similar defenses to both allegations. Accordingly, I find
that a sufficient factual nexus exist between the allegations of
the amended charge and those of the original charge and deny
the Respondent’s motion to dismiss paragraphs 8 and 13 of the
complaint.
I find further that the February 24, 1999 amendment of the
charge in Case 34–CA–8354 to specifically allege that it was
Al Christmann’s nonmembership in Local 138, rather than
Local 825, which motivated his termination did not render the
complaint allegation untimely. The allegations of the charge
and amended charge involved the same legal theory, i.e., that
the charging party’s nonmembership in a labor organization
motivated his termination, and arose out of the same factual
circumstances and sequence of events, i.e., the employment and
termination of Al Christmann. The Respondent would raise
similar defenses, regardless of the identity of the particular
union involved, i.e., that it’s decision to terminate Al Christ-
mann was motivated by factors other than his lack of member-
ship in a labor organization. The amendment of the charge did
nothing more than correct a factual inaccuracy in the original
charge. Accordingly, I shall deny the Respondent’s motion to
dismiss paragraphs 9 and 11, and that portion of paragraph 14
relating to Al Christmann’s discharge.
B. Background and Supervisory/Agency Issues
As admitted by the Respondent, Peter Scalamandre & Sons,
Inc. and Sea Crest Construction Corp. are a single employer.
Scalamandre is the direct employer of labor and provides the
equipment while Sea Crest serves as the contractor on construc-
tion projects. Scalamandre has been a member of the Long
Island Contractors Association for many years and, through this
membership, has been party to successive collective-bargaining
agreements with Local 138 covering work in Nassau and Suf-
folk counties on Long Island. In 1997 and 1998, Sea Crest was
the general contractor on a project to build military housing for
the U.S. Army at West Point, New York. This project is re-
ferred to as the Stony Lonesome project. West Point is outside
Local 138’s geographic jurisdiction, but within the jurisdiction
of Local 825. The Respondent did not have a collective-
bargaining agreement with Local 825 until January 1998. Prior
to November 1997, the only union-represented employees
working for the Respondent in West Point were laborers be-
longing to Laborers Local 17.3 The Christmanns, who did not
belong to any union, worked for the Respondent as operating
engineers at the Stony Lonesome project.
The Stony Lonesome project was built in three phases. All
three phases involved extensive site work, such as blasting,
excavating, installing water pipe and other underground utili-
ties, grading, roadway construction and drainage. The same
types of heavy construction equipment and the same classifica-
tions of employees were used on all three phases. The first
phase, Bravo, was completed around Christmas 1997. The sec-
ond, or Alpha phase, started in the fall of 1997 and was com-
pleted by spring 1998. Site preparation for the final phase,
called Delta and Echo, started around January 1998. The entire
project was completed in August 1998. Damon DeSimone was
the Respondent’s project manager at Stony Lonesome. He spent
most of his time in the office trailer. Paul Borger was the Re-
spondent’s site superintendent coordinating the work of the
subcontractors. About November 1, 1997, Paul Vander Schuyt
came to the project as the Respondent’s field superintendent.
He and Borger reported directly to DeSimone. Both Borger and
Vander Schuyt spent most of their time in the field, overseeing
the actual construction. After Vander Schuyt arrived, Borger
concentrated on the construction of the buildings and Vander
Schuyt on the site work. The Respondent admits that DeSi-
mone, Borger, and Vander Schuyt are statutory supervisors and
its agents within the meaning of the Act. In addition to these
undisputed supervisors, the Respondent employed several
foremen whose status is in dispute. The General Counsel al-
leged and the Respondent denied that William Leahy is a statu-
tory supervisor and that Eric Beck and Dominic Milone III
(also referred to in the record as Dominic Senior) were agents
of the Respondent.
Beck was initially employed by the Respondent as a laborer.
He is a member of Laborers Local 17 and was its steward on
the job. At some point before the events at issue here, he also
became the laborer foreman. Because the Respondent directly
employed few equipment operators prior to November 1997,
Beck also served as foreman for the operators. Al Christmann
testified that he was told by Borger, when he first reported to
the site as an employee of the Respondent, to see Beck for his
work assignment and that it was Beck who would tell him what
to do every day. According to Christmann, Beck also occasion-
ally reassigned him during the course of the day when material
was needed at other parts of the jobsite. Beck continued to as-
sign and direct the work of the operators until the Respondent
brought Dominick Milone III, a member of Local 138, to the
job in mid-November. From that point on, it was Milone who
told the Christmanns and the other operators what to do each
day. It is undisputed that Beck also was responsible for keeping

3 Because the job was covered by the Davis-Bacon Act, all employ-
ees on the site were paid prevailing wages which were equivalent to the
wages and fringe benefits paid to union-represented employees in the
area.
PETER SCALAMANDRE & SONS, INC. 1193
track of employees’ time and distributing paychecks, before
and after Milone arrived. Beck also ran weekly safety meetings
for the employees throughout the project. It was Beck who
informed Al Christmann that he was being laid off and Milone
who informed Rick Christmann of his layoff.
There is less evidence in the record regarding Leahy’s duties
and responsibilities. The Christmanns identified him as the
Respondent’s quality control person. From their testimony, it
appears that he was in charge of installing water lines and other
utilities and was limited to directing the work of those crews
performing such work. Al Christmann testified that Leahy had
been the pipe foreman for Bryland Paul and Gayle Construction
at the site before working for the Respondent and that part of
Leahy’s job for the Respondent involved taking pictures to
document the underground utility work before it was covered.
Leahy occasionally acted as foreman over Rick Christmann
when he was assigned to one of the crews digging for and lay-
ing pipe. According to Rick Christmann, when he worked on
Leahy’s crew, for about 3 weeks in January 1998, it was still
Beck who assigned the work. In addition, Leahy also “labored”
to get the pipe in the ground with the rest of the crew, using
shovels and other tools.
Vander Schuyt admitted that the foremen helped him run the
job and that he specifically brought Milone from Long Island to
“run the fields,” not to operate equipment. Vander Schuyt testi-
fied that he met with Leahy, Beck, Milone, and two other la-
borer foremen every day at lunch to plan the next day’s work.
They would discuss manpower and equipment needs to com-
plete each day’s work. The foremen were then responsible for
implementing these plans by making work assignments and
making sure the equipment and material was in place to do the
work. At these meetings, Vander Schuyt also discussed with the
foremen overtime requirements, based on recommendations
made by the foremen. If he authorized any overtime, the fore-
men would be responsible for communicating that information
to the employees. Similarly, when a reduction in manpower
was required, Vander Schuyt discussed this with the foremen,
selecting the individuals for layoff by consensus. The respec-
tive foreman would then be responsible for communicating this
decision to the employees on his crew who were selected for
layoff. Vander Schuyt acknowledged that employees who
wanted time off or to leave the job before the workday was
over would communicate the request to their foreman first who
would relay the information to him. Vander Schuyt identified
Milone and Beck as his two key guys on the job, on whom he
relied the most in bringing the job to completion. In fact,
Milone would assume Vander Schuyt’s duties and responsibili-
ties when he was away from the site on vacation.
Based on the above, I find that there is insufficient evidence
that Leahy exercised any of the specific categories of authority
listed in the statute as evidence of supervisory status. He ap-
pears to have had even less authority than Beck and Milone,
whom the General Counsel concedes were not supervisors. At
most, he directed the work of the crews performing utility
work. However, in doing so, he did not exercise any independ-
ent judgment but merely used his superior skill and expertise to
ensure that the plans and specifications were carried out. Even
assuming he held some type of quality control position with the
Respondent, there is no evidence that he possessed any inde-
pendent authority vis a vis other employees in this capacity. As
the party asserting that Leahy was a supervisor at the time of
the alleged unlawful conduct, the burden is on the General
Counsel to prove that he possessed and exercised at least one of
the statutory indicia of supervisory authority. The General
Counsel has not met her burden as to Leahy. Accordingly, I
find that Leahy was not a supervisor of the Respondent within
the meaning of Section 2(11) of the Act. Hausner Hard-
Chrome of Ky, Inc., 326 NLRB 326 (1998); Great American
Service Products, 312 NLRB 962, 962–963 (1993); Blue Star
Ready-Mix Concrete Corp., 305 NLRB 429 (1991).
Although the evidence is insufficient to establish that Leahy
is a supervisor, there is sufficient evidence in the record to
establish that the Respondent placed him, along with Beck and
Milone, in positions where they served as the conduit of
information between the Respondent’s management and
employees. Vander Schuyt admitted that he relied on these
three foremen to carry out his plans to accomplish the work by
making assignments and directing the crews in the field. These
foremen communicated decisions regarding work assignments,
layoffs and overtime to the employees in the field. In return,
they communicated employees’ requests for time off to the
office. In addition, Beck communicated safety messages to the
employees at weekly meetings, kept track of employees’ time
for payroll purposes and was the individual employees looked
to for their paychecks every week. Under well-established
Board law, the Respondent cloaked these three individuals with
the apparent authority to speak and act for management. See
Hausner Hard-Chrome of Ky., Inc., supra, and cases cited
therein. See also Zimmer Plumbing Co., 325 NLRB 106 (1997).
Whether employees could reasonably believe that each was
reflecting company policy and speaking and acting on behalf of
management with respect to the particular statements attributed
to them will be discussed later in this decision.
C. Facts Regarding Al Christmann
The Respondent performed most of the site work on the first
two phases through subcontractors and did not directly employ
any equipment operators until April 1997. Both Al and Rick
Christmann were first employed at Stony Lonesome by one of
the subcontractors, Bryland Paul Construction. Al Christmann
began his employment at the site in October 1996 and Rick
Christmann in November 1996. The Respondent terminated its
contract with Bryland Paul in February 1997, at which time the
Christmanns were laid off with the rest of Bryland Paul’s em-
ployees. During the time that they worked for Bryland Paul,
Borger was indirectly overseeing their work as the Respon-
dent’s project superintendent. The Respondent subsequently
contracted with another subcontractor, Gayle Construction, to
finish the site work on Bravo and start Alpha. Many of Bryland
Paul’s employees, including Rick Christmann were hired by
Gayle. Al Christmann was not hired by Gayle but he was hired
by the Respondent on April 17, 1997. Rick Christmann was
hired by the Respondent on August 4, 1997. The Respondent
disputed the testimony of the Christmanns regarding how they
came to be employed by the Respondent.
Al Christmann has 40 years’ experience as a heavy equip-
ment operator. He testified that Borger called him at home in
March 1997, about a month after he was laid off by Bryland
Paul, and asked if he would be interested in working for the
Respondent at an offsite location, loading material for the
Stony Lonesome project onto trucks with a 500 Komatsu pay-
loader. Al Christmann accepted employment with the Respon-
dent and started working at a pit in New Windsor, New York,
about 5 miles from the Stony Lonesome site, on April 17, 1997.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
The Respondent’s records show that he was one of the first
operators hired to work directly for the Respondent. Al Christ-
mann was the only operator working at New Windsor and he
reported directly to Borger and DeSimone. In about June 1997,
according to Al Christmann, Borger, and DeSimone told him
that the Respondent was going to close the New Windsor op-
eration because material he was loading at that pit was not sat-
isfactory. Al Christmann was told to “dress up the pit” and the
Respondent would make arrangements to move the Komatsu to
Stony Lonesome. When Al Christmann asked if they would
need him anymore, DeSimone said, “[W]e can always use a
guy like you down here on the site.” DeSimone told Al Christ-
mann to report to the site the following Monday and they would
find something for him to do. As noted above, when he re-
ported to the site, Borger directed him to see Beck, who was the
laborer steward and foreman, and Beck put him on a small
dozer to do some grading while he waited for the Komatsu to
be brought down from New Windsor. After the Komatsu ar-
rived, Al Christmann operated this piece of equipment almost
exclusively until November 1997. During that time, he got his
assignments in the morning and throughout the day from Beck.
Borger and DeSimone denied, in response to leading questions,
that the Respondent solicited Al Christmann to work for the
Respondent, or that they ever told him words to the effect that
he was the type of operator Respondent needed. However, none
of the Respondent’s witnesses explained how Al Christmann
came to be employed by the Respondent.
According to Al Christmann, when he first arrived at the
Stony Lonesome job as an employee of the Respondent, the
only other operators working for the Respondent were Billy
Dunn and Scott McCormick. Al Christmann testified that the
Respondent was also using two laborers as equipment opera-
tors. He identified them as Bobby Warren and a guy named
Millis, known as “Cowboy.” The parties stipulated that the
Respondent employed a James Warren and a Robert Millis,
who were members of Laborers Local 17 at the Stony Lone-
some job. The parties stipulated that they were hired on August
4 and 11, 1997, respectively. This was about the same time that
the Respondent hired Rick Christmann. The parties also stipu-
lated that both Dunn and McCormick were not members of any
union and that Dunn was hired April 17, 1997, the same date as
Al Christmann, and that McCormick was hired August 28,
1997.
About November 1, Vander Schuyt arrived on the job and
took over responsibility for the site work from Borger. Al
Christmann testified that he spoke to Vander Schuyt soon after
his arrival on the job. Al Christmann was screening topsoil at
the time. Vander Schuyt asked him how the job was going and
he replied, “[Y]ou must have your hands full, with Laborers
running equipment.” According to Al Christmann, Vander
Schuyt replied that that would soon change because he was
going to bring up some operators from Local 138 on Long Is-
land. On cross-examination, Al Christmann acknowledged that
Vander Schuyt also told him that the job was going too slow
and that he had to bring in more operating engineers to make
things go faster. He testified that Vander Schuyt did not men-
tion whether or not the operators he would bring from Long
Island belonged to any union.
Al Christmann recalled that the first operators from Local
138 arrived a couple weeks after Vander Schuyt. The first to
come to the job were Dominic Milone III, who became the
foreman and took over some of Beck’s responsibilities as noted
above, and his son, Dominic Milone IV.4 The parties stipulated
that the Milones started at Stony Lonesome on November 17,
1997. Al Christmann testified that soon after the Milones ar-
rived, he was taken off the Komatsu and reassigned to an exca-
vator. Milone the younger was assigned to the Komatsu. Ac-
cording to Al Christmann, Vander Schuyt did this after the
younger Milone damaged a bulldozer while pulling out trees.
He testified that Vander Schuyt told him that “maybe it would
be easier for [the young] Dominic to operate” the Komatsu. Al
Christmann recalled that he worked on the excavator finishing
up a section of road in the Delta section for about a week and
then was assigned to operate a bulldozer stockpiling topsoil.
Milone the elder gave him this assignment. This is the job that
Al Christmann was doing for the remainder of his employment
by the Respondent.
Al Christmann’s last day was Wednesday, November 26,
1997, the day before Thanksgiving. According to Al Christ-
mann, he continued to stockpile topsoil using the bulldozer
without incident. At lunchtime, he stopped by the office trailer
to wish the management and supervisors a happy holiday.
Nothing was said to him about a layoff until the end of the day.
According to Al Christmann, Beck handed him his check at the
end of the day and said: “[T]hey’re not going to need you any
longer. They’re bringing guys up from Local 138.” When Al
Christmann expressed shock, Beck told him again, “you’re
finished; you’re laid off.” According to Al Christmann, no one
criticized his job performance, or indicated that he was doing
anything wrong either before or at the time of his layoff. Al
Christmann admitted that no foreman or supervisor ever asked
him to join any union or told him that his continued employ-
ment was contingent on joining a labor organization. In fact,
the only comment anyone made to him about any union was
Beck’s statement at the time of his layoff.
Beck, who no longer works for the Respondent, denied tell-
ing Al Christmann that he was being laid off because the Re-
spondent was bringing in operating engineers from Local 138.
According to Beck, he told Al Christmann that he was being
laid off because of a lack of work. Although Beck could not
recall when he gave Al Christmann his layoff, he recalled that
he laid off two of his own laborers the same day because the
job was winding down. The parties’ stipulation shows that no
one else was laid off the same day as Al Christmann and that
only one laborer, James Warren, was laid off around that time,
i.e., 2 days before, on November 24, 1997. This stipulation also
shows that another member of Local 138, William Biemann,
started at the Stony Lonesome job on November 23, 1997, a
few days before Al Christmann was laid off, and that two more
members of Local 138, Dean Ciccione and Scott Lucas, started
the following Monday, December 1, 1997. After Al Christ-
mann’s layoff, the Respondent employed five operating engi-
neers who were members of Local 138 and three who did not
belong to any union (Rick Christmann, Dunn, and McCor-
mick). At the time, the Respondent was not a party to any col-
lective-bargaining agreement covering the operating engineer’s
work at Stony Lonesome.
Vander Schuyt disputed Al Christmann’s testimony regard-
ing the reason for his reassignment from the Komatsu to other
equipment. Vander Schuyt testified that he spent the first week
at the job, in early November, just observing the progress of the

4 They are referred to throughout the record, somewhat erroneously,
as Dominic Sr. and Dominic Jr.
PETER SCALAMANDRE & SONS, INC. 1195
work and the performance of the operators on site. He decided
that the job was moving to slowly and that he needed more
experienced operators to get the job going. He had just finished
a highway interchange project on Long Island, utilizing mem-
bers of Local 138, and asked the Milones, who had worked for
him before, to come to Stony Lonesome. As noted above, he
specifically brought Milone the elder to Stony Lonesome to
help him run the job as his operator foreman. Vander Schuyt
testified that the other members of Local 138 who came to
Stony Lonesome had also worked for him in the past on Long
Island and that he knew them to be good operators, proficient at
running various machines.
With respect to Al Christmann, Vander Schuyt testified that
he observed him operating the Komatsu, screening topsoil, in
first gear forward and reverse. He asked Al Christmann to pick
up the speed, i.e., to run it in second gear forward and third gear
reverse. Despite this instruction, he observed that Al Christ-
mann continued to operate in first gear. Vander Schuyt could
not recall with any certainty whether he spoke to Al Christ-
mann again about this. Al Christmann specifically denied that
Vander Schuyt ever spoke to him about the speed at which he
was operating the Komatsu. Vander Schuyt also disputed the
reason for putting Milone the younger on the Komatsu. Accord-
ing to Vander Schuyt, when he observed that Al Christmann
had not increased his speed, he decided to try another operator
on the equipment to determine if there was a problem inherent
in the operation causing Al Christmann to run in first gear. He
did not specifically dispute Al Christmann’s testimony that
Milone the younger had damaged a bulldozer before this
change in assignments.
Vander Schuyt testified that he made the decision to lay off
Al Christmann and that he did so solely because he was not
satisfied with the way he was operating the Komatsu. He spe-
cifically denied that Al Christmann’s nonmembership in a un-
ion had anything to do with his decision and specifically denied
that any union requested that Al Christmann be laid off. Vander
Schuyt did not corroborate Beck’s testimony that Al Christ-
mann’s layoff was caused by a lack of work. Beck made no
mention of any problems with the way Al Christmann was
operating the equipment. According to Beck, when he and the
other foreman met with Vander Schuyt in the trailer the day
before the layoff they only discussed the need to cut the crew.
He recalled that no reason was given for the layoff of Al
Christmann other than the lack of work.
D. Facts Regarding Rick Christmann
Rick Christmann testified that, after he was laid off by Bry-
land Paul, he was called by Borger and told to apply for work
with Gayle Construction. When he first applied with Gayle,
Rick Christmann was told that they didn’t need any operating
engineers. He testified that he reported this to Borger who told
him that he would talk to Gayle Construction. Soon thereafter
he was hired by Gayle and returned to work at Stony Lonesome
in about June 1997. Rick Christmann testified further that, in
late July, he was approached on the job by DeSimone and solic-
ited to work for the Respondent. When Rick Christmann asked
for how long, DeSimone told him until the job was done. Rick
Christmann accepted employment and started working for the
Respondent the following week, i.e., on August 4, 1997. Borger
and DeSimone disputed this testimony but did not explain how
Rick Christmann came to be an employee of the Respondent.
Rick Christmann testified that he was generally assigned to
run a 220 Kumatsu, doing various things, such as backfilling
foundations, grading, digging for footings and drainage work.
He ran the 220 Kumatsu for about 4 months, into December
1997. He then operated a special backhoe for about a month
before going back on the Kumatsu. When he went back on the
220, he was working on starting the water lines on phase three
with a crew under the direction of Leahy. According to Rick
Christmann, he operated the Kumatsu on this crew until about
the time that the Respondent signed a collective-bargaining
agreement with Local 825 when he was taken off that equip-
ment and put on the roller, or compactor, as part of a crew
bringing the road up to grade level. A member of Local 825
whose name he recalled was Tony was assigned to operate the
Kumatsu.5 It was Milone the elder who informed the employ-
ees of these assignments. Rick Christmann worked on the roller
until about 3 days before his termination when he was assigned
to a bulldozer, working on the same part of the job.
Rick Christmann testified that, toward the end of December
1997, in the parking lot up on the hill, Beck told him that the
Respondent was going to sign a contract with Local 825. Beck
told Rick Christmann that, if they did, the Respondent would
have to offer Rick a union book and could not lay him off. Rick
Christmann testified that he told Beck that would be great be-
cause he always wanted to join the Union. About a week to 10
days later, Beck told Rick Christmann that the Respondent had
signed the contract and would now have to give him a union
book. It was about this time that Rick Christmann was re-
assigned to the roller. He testified that he spoke to Vander
Schuyt the day after his reassignment and asked if this meant he
was being laid off because the last guy who worked on the
roller had been laid off.6 According to Rick Christmann,
Vander Schuyt told him, “No, you’ll be back on your 220.”
Rick Christmann testified that he also questioned DeSimone
about his job assignment and that DeSimone told him, “[D]on’t
worry about it; keep your mouth shut; the pay’s the same.”
Vander Schuyt and DeSimone deny making such statements.
Rick Christmann testified that he also spoke to Beck about
his reassignment to the roller, after the contract was signed and
that Beck said, “[J]ust keep your mouth shut. Local 825 wants
you off this job.” Rick Christmann told Beck that he wanted to
speak to Mike Hamm about getting a union book. Hamm was
the Local 825 steward on the job and the son of the business
representative who negotiated the contract with the Respon-
dent. Hamm was also one of the first Local 825 members to be
hired by the Respondent. Beck told Rick Christmann that he
would speak to Hamm. Although Rick Christmann did speak to
Hamm, he was never offered a union book. Beck denied having
these conversations with Rick Christmann. Rick Christmann
testified that he had a similar conversation with Leahy, also in
the parking lot within a couple days of being put on the roller
and that Leahy also told him to “keep [his] mouth shut because
Local 825 wants [him] off the job.”7 After the General Counsel
refreshed his recollection with his affidavit, Rick Christmann
recalled that Leahy also told him that Borger had saved his job.
Leahy did not testify in this proceeding. Rick Christmann testi-

5 The parties’ stipulation shows that a member of Local 825 named
Anthony Fairbairn started work at the site on January 19, 1998.
6 The parties’ stipulation shows that Scott McCormick was laid off
on January 9, 1998, and that Scott Lucas, one of the Local 138 mem-
bers was laid off on January 1, 1998. The first two members of Local
825 appear at the job on January 5, 1998.
7 This is the only statement that the General Counsel alleges is un-
lawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
fied that he went to the trailer the following day and thanked
Borger for saving his job. According to Rick Christmann, Bor-
ger replied, “[N]o problem, you’re the best operator we got.”
Borger denied ever telling Rick Christmann that he was the best
operator on the job.
Rick Christmann testified that on his last day of work, Feb-
ruary 13, 1998, he was using the bulldozer to push up fill and
the roller to compact it as trucks delivered the fill. This is the
same work he had been doing since being taken off the 220
Kumatsu. About 2 p.m. that afternoon, after he’d finished all
the loads of fill that had been delivered, Milone the elder came
to him with his check and said, “I hate to do this, they no longer
need you.” When Rick Christmann asked why, Milone said,
“[Y]our job is done.” No other reason was given. According to
Rick Christmann, his job was not done because the road still
had to be raised another 10 feet to grade level. Rick Christmann
testified that he had no prior warning or indication that he
would be laid off. Rick Christmann admitted that no representa-
tive of the Respondent ever threatened him about his lack of
membership in the Union or told him that he had to join a union
if he wanted to continue working for the Respondent.
The record establishes that the Respondent signed a collec-
tive-bargaining agreement with Local 825 on January 13, 1998.
According to Vander Schuyt, representatives of Local 825
came to the job and demanded that the Respondent sign their
contract because the Respondent was a union contractor em-
ploying union members in their geographic jurisdiction. Local
825 threatened to picket the job if the Respondent refused. The
Respondent quickly acquiesced to this demand and almost im-
mediately hired two members of Local 825. The parties stipula-
tion shows that the first Local 825 members started working for
the Respondent at Stony Lonesome on January 5, 1998. Ac-
cording to Vander Schuyt, the collective-bargaining agreement
was sent to the Respondent’s office in Long Island to be re-
viewed and signed. With the signed contract, the Respondent
submitted an attachment purporting to identify those employees
on its payroll performing work covered by the contract within
the Union’s jurisdiction. The only employee listed is William
Dunn.
Vander Schuyt denied that Rick Christmann’s nonmember-
ship in the Union had anything to do with his layoff. He also
denied that Local 825 requested that Christmann be laid off.
Vander Schuyt testified that the sole reason Rick Christmann
was laid off was that the Respondent ran out of work for him.
Specifically, according to Vander Schuyt, there was no more
work for the roller. Vander Schuyt also testified that lack of
skill was not a reason for Rick Christmann’s layoff. This was
contrary to the position taken by the Respondent’s counsel in
two letters to the Board’s Regional Office submitted during the
investigation. Vander Schuyt conceded that the position letters
were inaccurate. Vander Schuyt also insisted that no one was
hired to replace Rick Christmann. This testimony was contra-
dicted by the parties’ stipulation which shows that a member of
Local 825, Charles Miller, started working for the Respondent
the next working day. Moreover, daily work schedules in evi-
dence show that Miller was assigned to the very same road fill
job that Rick Christmann had been working on. Miller contin-
ued to work on this part of the job, albeit with a different bull-
dozer and operating both the dozer and roller as needed,
through the end of March. The daily work schedules also show
that the other operator working with Rick Christmann at the
time of his layoff, William Biemann, was transferred to work
on another part of the job and was not laid off. Biemann was a
member of Local 138.
At the time of his layoff, Rick Christmann was the only op-
erator who did not belong to any union. Scott McCormick had
been laid off on January 9, 1998, before the Respondent signed
its contract with Local 825. Billy Dunn, the other nonunion
operator who had worked for the Respondent since April 1997,
joined Local 825 on February 10, 1998. He remained an em-
ployee of the Respondent until August 4, 1998. The Respon-
dent did continue to employee one nonunion member, Thomas
Avery, in the classification of mechanic/welder. In that posi-
tion, he was responsible for maintenance and repair of all
equipment on site. Such a position is usually covered by the
collective-bargaining agreement with local unions of the Oper-
ating Engineers. Vander Schuyt testified that Avery quit volun-
tarily for other employment on April 17, 1998.
E. Analysis and Conclusion
1. The 8(a)(1) allegation
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act, on or about January 13, 1998, by threatening
employees with termination because they were not members of
a labor organization. This allegation is based on Rick Christ-
mann’s testimony that Leahy told him to keep “his mouth shut
because Local 825 wants him off the job.” I found Rick Christ-
mann to be a generally credible witness and have no doubt that
Leahy made such a statement. Moreover, because Leahy did
not testify in this proceeding, Rick Christmann’s testimony
regarding this conversation is unrebutted. As found above,
however, Leahy was not a statutory supervisory of the
Respondent at the time he made this statement. The only way
the statement may be attributable to the Respondent is if Leahy
was acting as an agent of the Respondent when he made the
statement, i.e., if an employee “would reasonably believe that
[Leahy] was reflecting company policy and speaking and acting
for management.” See Hausner Hard-Chrome of Ky., Inc.,
supra, and cases cited therein.
As found above, the Respondent placed Leahy and the other
foremen in a position where they acted as conduits of informa-
tion between management and the employees with respect to
their job assignments and other aspects of the work. At the time
Leahy made this statement to Rick Christmann, he was not
Christmann’s direct foreman because Christmann had already
been reassigned from Leahy’s crew to working on the roller
where he was under the elder Milone’s direction. In addition,
Leahy’s warning to Christmann went beyond the normal infor-
mation conveyed by the foremen to the employees in the field
and did not even purport to be a statement of the Respondent’s
views or position on the question of union membership. On the
contrary, Leahy was communicating what Local 825 allegedly
wanted, not what the Respondent wanted. In fact, in the same
conversation, Leahy told Rick Christmann that Borger, an ad-
mitted supervisor, had saved Christmann’s job, suggesting that
the Respondent did not want Christmann off the job. Under
these circumstances, I find that Rick Christmann could not
reasonably believe that Leahy was reflecting company policy or
speaking and acting for management when he made the state-
ment attributed to him by the Respondent. Accordingly, I find
that the Respondent did not unlawfully threaten Rick Christ-
mann with termination in violation of Section 8(a)(1) of the Act
through Leahy’s statement.
PETER SCALAMANDRE & SONS, INC. 1197
2. The 8(a)(3) allegations
The complaint alleges that the Respondent terminated the
Christmanns because of their nonmembership in a labor organi-
zation and in order to encourage membership in either Local
138 or Local 825. In cases such as this, that turn on employer
motivation, the Board applies the test it first established in
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The General
Counsel must show by a preponderance of the evidence that
animus against protected conduct was a motivating factor in the
employer’s conduct. Once such a showing is made, the burden
shifts to the employer to demonstrate that the same action
would have taken place even in the absence of protected con-
duct. To sustain his initial burden, the General Counsel must
show (1) that the employee was engaged in protected activity,
(2) that the employer was aware of the activity, and (3) that the
activity was a substantial or motivating reason for the em-
ployer’s action. See Naomi Knitting Plant, 328 NLRB 1279
(1999). Because there is seldom direct evidence of unlawful
motivation, i.e., the proverbial “smoking gun,” the Board fre-
quently relies upon circumstantial evidence to prove motive.
See Abbey’s Transportation Services, 284 NLRB 698, 701
(1987), enfd. 837 F.2d 575 (2d Cir. 1988).
In the instant case, there is no dispute that the Christmanns
were not members of any labor organization. This status is the
extent of their protected activity as there is no evidence that
they were asked to and refused to join any union, that they
sought to avoid joining a union or engaged in any other overt
conduct that would be protected by Section 7 of the Act. Their
status as nonmembers, however, is enough to satisfy the first
part of the General Counsel’s burden to prove a prima facie
case. The Board has held that the discharge of an employee
because he is not a union member is considered to be discrimi-
natory because it has the natural consequence of encouraging
membership in a particular union. Laborers Local 135 (Bechtel
Corp.), 271 NLRB 777, 778–779 (1984), enfd. 782 F.2d 1030
(3d Cir. 1986). See also DuBose Masonry, Inc., 279 NLRB 909
(1986); Laidlaw Waste Systems, 275 NLRB 1025 (1985); J.
Willis & Son Masonry, 191 NLRB 872 (1971). Thus, if the
General Counsel has established that their status as non-
members was a motivating factor in the Respondent’s decision
to terminate Al and Rick Christmann, then he has met his prima
facie burden.
The record contains no direct evidence of unlawful motiva-
tion for Al Christmann’s termination. Instead, the General
Counsel relies on circumstantial evidence, including the state-
ment made by Beck when he informed Al Christmann of his
layoff, to prove that his nonmembership in Local 138 motivated
the Respondent to terminate him. Al Christmann was abruptly
terminated the day before Thanksgiving, within 2 weeks of the
arrival of the first unionized operating engineers on the job.
According to Al Christmann, Vander Schuyt told him soon
after Vander Schuyt arrived on site that he was going to bring
Local 138 members to the job to get it moving. At the time of
his layoff, Beck told Al Christmann that the Respondent
wouldn’t be needing him anymore “because they’re bringing up
guys from Local 138.” No other reason was given for his lay-
off. Although Beck denied making this statement, I credit Al
Christmann’s testimony in this regard. Beck appeared to have
little recall of the events and his testimony proved to be false.
Beck insisted the only reason Al Christmann was laid off was
that the job was winding down and that others were laid off at
the same time. Vander Schuyt contradicted Beck regarding the
reason for the layoff and the parties’ stipulation shows that the
employee complement on the job was increasing, not decreas-
ing, at the time of Al Christmann’s layoff. Finally, Beck’s
statement that the Respondent was bringing up Local 138
members proved to be true because two Local 138 members
started the next working day after Al Christmann’s layoff. Al-
though Beck was not a supervisor, Beck’s statement was well
within the scope of his apparent authority as a foreman since
one of his responsibilities as foreman was to communicate lay-
off decisions to employees. Under these circumstances, Al
Christmann could reasonably believe that Beck was speaking
and acting for management when he told Christmann that the
Respondent didn’t need him anymore because it was bringing
up Local 138 operators.
In addition to the timing of the layoff and Beck’s statement,
the General Counsel argues that the reason proffered by the
Respondent at the hearing was a pretext. The Board has long
held that unlawful motivation may be found where an employer
provides false or shifting reasons for its actions. Naomi Knitting
Plant, supra; WECO Cleaning Specialists, Inc., 308 NLRB 310,
fn. 4 (1992). Vander Schuyt testified that the sole reason for Al
Christmann’s layoff was his failure to operate the 500 Komatsu
payloader in the manner Vander Schuyt desired despite specific
instructions from Vander Schuyt to increase his speed. Al
Christmann denied that Vander Schuyt ever instructed him to
increase his speed on the payloader. I found Al Christmann a
generally more credible witness than Vander Schuyt. As will be
shown in connection with Rick Christmann’s case, Vander
Schuyt was often contradicted by company documents. More-
over, I find it highly unlikely that Al Christmann, an operator
with 40 years’ experience who had worked as a foreman, would
ignore a project superintendent’s instructions to change the
speed at which he was operating equipment. Had Vander
Schuyt told Al Christmann to operate in second gear forward
and third gear reverse, I am sure he would have done so. Fi-
nally, I note that, by the time he was laid off, Al Christmann
had already been taken off the 500 Komatsu and was operating
a different piece of equipment. Thus, even if Vander Schuyt
was dissatisfied with the way Al Christmann operated the Ko-
matsu, he had already corrected the problem.
Having found that the asserted reason for Al Christmann’s
termination was false, I must determine whether the true reason
is the unlawful one that the General Counsel claims. The record
contains no evidence of animus on the part of the Respondent
toward Al Christmann’s lack of union membership. In fact, the
Respondent hired only nonunion equipment operators until
November 1997 and retained three nonmembers, including Al’s
son, after Al Christmann’s layoff. Even Beck’s statement, i.e.,
that the Respondent was bringing up Local 138 members, does
not prove a motivation to encourage membership in that or-
ganization. The Respondent’s contract with Local 138 did not
apply to the Stony Lonesome job and no employees were told
they would have to join Local 138 to keep their employment.
There is no evidence that Local 138 requested the Respondent
terminate its nonunion operators. Moreover, Al Christmann
acknowledged that Vander Schuyt indicated dissatisfaction
with the progress of the job and a plan to bring in more experi-
enced operators from Long Island a couple weeks before his
layoff. Its preference for employees who were members of
Local 138, and with whom the Respondent was familiar from
prior jobs, is not proof of any unlawful motivation, particularly
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
where the Respondent retained an almost equal number of non-
union operators.
Having considered the evidence, I find that the General
Counsel has failed to establish a prima facie case that Al
Christmann was terminated because of his nonmembership in
Local 138 and in order to encourage membership in that Union.
While the circumstances surrounding his layoff, as noted
above, create suspicion regarding the true motive for the termi-
nation, suspicion is not enough. When that suspicion is bal-
anced against the Respondent’s history of hiring nonunion op-
erators, its stated need to bring in experienced operators to get
the job moving, and the Respondent’s retention of other non-
members of the Union for several months after Al Christmann’s
layoff, I am not convinced that a preponderance of the evidence
supports a finding the Al Christmann’s nonmembership in the
Union was a motivating factor in his layoff. Accordingly, I
shall recommend that the complaint be dismissed to the extent
it alleges that Al Christmann’s termination violated Section
8(a)(3) and (1) of the Act.
The General Counsel’s case with respect to the termination
of Rick Christmann is much stronger. Rick Christmann was
abruptly terminated from a job he had worked on for more than
6 months without any reason being given. By the time he was
terminated, the Respondent had signed a collective-bargaining
agreement with Local 825 requiring it to use the Local 825
hiring hall as a source of employees. The Respondent omitted
Rick Christmann’s name from its certification to the Union of
employees on the payroll performing work within the Union’s
jurisdiction. The only other nonunion equipment operator re-
maining after the contract was signed, William Dunn, joined
the Union a few days before Rick Christmann was terminated.
In addition to these facts, the asserted reasons for Rick Christ-
mann’s termination proved to be false and ever-changing.
Vander Schuyt insisted at the hearing that the sole reason for
Rick Christmann’s layoff was a lack of work for him. This was
contrary to the position asserted by the Respondent in two let-
ters from its counsel submitted during the investigation. Vander
Schuyt acknowledged at the hearing that the reasons asserted in
the letters were not true.8 Moreover, Vander Schuyt’s testimony
that there was no more work for Rick Christmann was contra-
dicted by company records showing that a Local 825 member
started work at the site the next working day and was assigned
to the same aspect of the job, spreading and compacting fill for
the roadway. This new employee operated the same type of
equipment, a bulldozer and the roller, intermittently for weeks
afterward while the Local 138 operator who had been working
with Rick Christmann was simply reassigned to another part of
the job. These circumstances are sufficient to support an infer-
ence of discriminatory motive. Naomi Knitting Plant, supra;
State Equipment, Inc., 322 NLRB 631 (1996); Mastercraft
Casket Co., 289 NLRB 1414, 1420 (1988), enfd. 881 F.2d 542
(8th Cir. 1989).
In addition to the timing of Rick Christmann’s termination
and the Respondent’s false and shifting reasons for it, there is
other evidence in the record suggesting that his non-
membership in Local 825 was a motivating factor in his termi-
nation. Rick Christmann testified credibly that both Beck and
Leahy told him that Local 825 wanted him off the job. Al-

8 In contrast, the reason asserted by the Respondent’s counsel in
these letters for Al Christmann’s termination was consistent with
Vander Schuyt’s testimony at the hearing.
though the Respondent is not responsible for these statements,
because they were outside the scope of apparent authority held
by the two foremen, and the statements are hearsay as to what
Local 825 wanted, the statements help to shed light on the Re-
spondent’s true motivation in the face of the false and shifting
reasons advanced by the Respondent since Rick Christmann’s
termination. These statements suggest that the Respondent may
have been acting at the request of Local 825 when it terminated
Rick Christmann. No other credible reason has been advanced
for the Respondent’s decision.
Accordingly, I find that the General Counsel has established
a prima facie case that Rick Christmann’s nonmembership in
Local 825 was a motivating factor in his termination. Because
the reason advanced by the Respondent at the hearing has been
found to be pretextual, the Respondent has failed to meet its
burden under Wright Line, supra. Limestone Apparel Corp.,
255 NLRB 722 (1981). I therefore conclude that the Respon-
dent has violated Section 8(a)(1) and (3) of the Act as alleged
in the complaint by terminating Rick Christmann.
CONCLUSIONS OF LAW
1. Peter Scalamandre & Sons, Inc. and Sea Crest Construc-
tion Corp., a single employer, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. International Union of Operating Engineers, Local Union
No. 138 and Local Union No. 825 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By terminating Rick Christmann on February 13, 1998,
because of his nonmembership in Local 825, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the Act.
4. The Respondent has not violated the Act in any other
manner alleged in the complaint.
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 an em-
ployee, it must offer him reinstatement and make him 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). Although there is evidence in the record that the Stony
Lonesome job was completed in August 1998, the Board has
declined to adopt a precompliance presumption against rein-
statement in the construction industry. Instead, the Board ap-
plies its traditional reinstatement and make-whole remedies
while leaving reinstatement and backpay issues for resolution at
the compliance stage of the proceedings. Dean General Con-
tractors, 285 NLRB 573 (1987). The Respondent will have the
opportunity in compliance to show that, under its customary
procedures, an employee in Rick Christmann’s position would
not have been transferred to another project after the Stony
Lonesome job ended and that any reinstatement and backpay
obligation ended at that point.
PETER SCALAMANDRE & SONS, INC. 1199
Because the Stony Lonesome project was completed during
the pendency of these proceedings, I shall recommend that the
Respondent, in addition to the normal notice posting require-
ments, mail a copy of the notice to all employees who were
working as operating engineers at that job during the period
from the date of Rick Christmann’s termination until the com-
pletion of the project. This is the only effective manner of in-
forming employees who may no longer work for the Respon-
dent that their statutory rights have been vindicated.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, Peter Scalamandre & Sons, Inc. and Sea
Crest Construction Corp., Freeport, New York, its officers,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee because of their nonmembership in International Union
of Operating Engineers, Local Union No. 825, or any other
union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Rick
Christmann full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Rick Christmann whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within 3
days thereafter notify the employee in writing that this has been
done and that the discharge will not be used against him in any
way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Freeport, New York copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
10 If this Order is enforced by a Judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(f) Within 14 days after service by the Region, mail a copy
of the attached notice marked “Appendix”11 to all employees
who were employed by the Respondent in classifications cov-
ered by the collective-bargaining agreement with Local 825 at
its Stony Lonesome jobsite in West Point, New York at any
time from the onset of the unfair labor practices found in this
case until the completion of these employees’ work at that job-
site. The notice shall be mailed to the last known address of
each of the employees after being signed by the Respondent’s
authorized representative.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

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

WE WILL NOT discharge or otherwise discriminate against
any of you because you are not a member of International Un-
ion of Operating Engineers, Local Union No. 825, or any other
union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Rick Christmann full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Rick Christmann whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
11 See fn. 10, above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of Rick Christmann, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the dis-
charge will not be used against him in any way.
PETER SCALAMANDRE & SONS, INC. AND SEA CREST
CONSTRUCTION CORP.