NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

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 January 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 employees’ Section 7 conduct.

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 Raymond Della Vella. Hughey telephoned Della Vella after the second meeting and told him that he wanted to become 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 cafeteria/break room 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 Director 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 Union 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 Union 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 Respondent’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 Section 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 No. 2, slip op. at 2 (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, slip op. at 3 fn. 6. Thus, we must determine whether the record evidence as a whole, including any proffered legitimate reason for the wage increase and promotion offer to Hughey, supports an inference that the offer was motivated 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 (9^th Cir. 1998).

We find that the record does support such an inference. The immediate occasion of the meeting at which the offer was extended was the Respondent’s discovery that 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 promotion 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 Stevenson that Hughey intended to quit his job with the Respondent.

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 employee 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 coerce 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 because 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 assuming that was so, the judge found that the transfer was unlawful under Southern Services, 300 NLRB 1154 (1990), enfd. 954 F.2d 700 (11^th Cir. 1992).10 We agree with the judge’s conclusion that the transfer was unlawful, 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 because 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 absence of his union activity. Accordingly, on this basis, we affirm the judge’s finding that Hughey’s transfer violated 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, 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 No. 37 (2006), the judge did not apply the accountability test the Board adopted in Oakwood to determine whether Tandarich possessed the authority responsibly to direct. See Oakwood, supra, slip op. at 5-7. We find it unnecessary, 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 independent judgment. The judge found that there was no evidence that Tandarich considered the relative skills of employees in shifting them from one task or crew to another. 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., slip op. at 8; see also Croft Metals, Inc., 348 NLRB No. 38, slip op. at 6 (2006) (finding that employer failed to meet its burden of proof as to independent 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 interrogating 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.

After the Union filed a charge with the Region concerning the transfer of David Hughey from the UPS jobsite, the Respondent’s attorney, Christopher Murphy, interviewed Tandarich on October 15, 2001, in connection with the charge and secured an affidavit from him. The following month, Tandarich contacted Union Business 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 supplemental affidavit concerning the Hughey matter. Tandarich 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 table, 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 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 discharge 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 incident you did last night,” i.e., giving the affidavit to Della Vella. Thus, the sole issue is whether Tandarich, in doing so, enjoyed the protection of the Act. See, e.g., Felix Industries, 331 NLRB 144, 146 (2000), enf. 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 (8^th Cir. 1971). In Gerbes, as here, an employee was discharged for giving an affidavit prepared for him by the employer’s attorney to a union representative. 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 purported to be Tandarich’s statement. What Tandarich had to say about the Hughey matter could not have been confidential 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 affidavit 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 comparison 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 desired. Although the Respondent may well have been displeased by Tandarich’s decision to share the draft affidavit 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 employee] beyond the protective shield of the Act.”) (internal 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 lawfully 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 Stevenson’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 Tandarich 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 lawfully discharged Tandarich for that act of union assistance. 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 possession. 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 union activities. He concluded, however, that because Tandarich “had . . . quit his employment” with the Respondent, the letter was unlikely to have any effect on his exercise of Section 7 rights. Accordingly, the judge dismissed the allegation that the threat of prosecution violated Section 8(a)(1).

We reverse the judge’s dismissal. Preliminarily, Tandarich 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 No. 12 (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 withhold 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 position would suspect as much, the employee may still decide 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 Section 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 Tandarich stole the ladder. To the contrary, the judge credited 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 Tandarich’s behalf to arrange for its return. The Respondent never took the Union up on its offer. Therefore, we reject 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, Respondent assigned Moore to its Arcadia University project, 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 Company jobsite. Project Manager Jason Ellmore told Korejko 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 office 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 anywhere 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 discussion. 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 childish 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.” Stevenson 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 following him, and if he was being fired. Stevenson said he 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 Arcadia site and handbilled. That afternoon, Moore received 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 work site. Assuming arguendo that the General Counsel established an initial case under Wright Line, supra, that Moore’s union activity was a motivating factor in the transfer, the Respondent 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 April 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, supra. The Respondent obviously knew of Moore’s union activity and, just as obviously, harbored animus towards that activity. Further, the denial of work occurred immediately 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 assigned 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 Respondent 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 (1989), enfd. 942 F.2d 1140 (7^th Cir. 1991). We therefore 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 violated Section 8(a)(3) of the Act by discharging Moore. In so finding, the judge applied an amalgamation of theories, 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 Respondent’s refusal to assign Moore work, it quickly moved on to the subject of Moore’s union activity. Moore’s defense 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 defending 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 Stevenson. 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 continue . . . 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 applicable, we find the discharge unlawful under that framework 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 Respondent introduced no evidence that it has similarly discharged other employees for like conduct. Thus, again, at best the Respondent has done no more than articulate a legitimate reason for its action; it has not shown that it would have discharged Moore for that reason even in the absence of his union activity. Hicks Oils & Hicksgas, supra.

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 interrogating employee James Korejko on May 14, 2002. The General Counsel additionally alleged that the Respondent coercively interrogated Korejko sometime during 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 work site, 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 Respondent 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, Stevenson’s high rank in the company, the fact that the conversation took place in Stevenson’s office, and Korejko’s less than candid response. See Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees & Restaurant Employees Union, Local 11 v. NLRB, 760 F.2d 1006 (9^th 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 union 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.

(e) Offering or promising wage increases, promotions, or other benefits to employees to discourage union activity.

(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, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Brian Tandarich and Thomas Moore full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

(b) Make 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, expunge 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 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.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(e) Within 14 days after service by the Region, post at its West Chester, Pennsylvania office copies of the attached notice marked “Appendix.”20 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 16, 2001.

(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated, Washington, D.C. December 31, 2007

______________________________________

Wilma B. Liebman, Member

______________________________________

Peter N. Kirsanow, Member

(seal) National Labor Relations Board

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 January 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 materially 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 executed 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 participation 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 Company 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 reviewed 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. Tandarich 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 unannounced, 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] signature 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 disagree 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 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 allegation.

B. Tandarich’s Discharge

The day after Tandarich gave the Union the draft affidavit, 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 Tandarich’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 document 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 investigation. 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 employee 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 employee’s “misconduct,” i.e., keeping a copy of the interview notes, was justified.

In contrast to Gerbes, the Respondent here agreed to all of Tandarich’s reasonable requests regarding the affidavit. As discussed above, Tandarich did not feel coerced or threatened at the January 15 meeting; indeed, the meeting occurred at his request. Under these circumstances, 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 unprotected. Thus, I would find that he was lawfully discharged for just cause.

ii. alleged interrogation of david hughey

On or about June 16, 2001, the Union notified the Respondent 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, Stevenson 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 regarding 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 employer 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 support 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 allegation.

In conclusion, for the reasons stated above, I disagree with my colleagues’ findings of the foregoing violations. Thus, I respectfully dissent in part.

Dated, Washington, D.C. December 31, 2007

______________________________________

Peter C. Schaumber, Member

National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not 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 support 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 reasonably 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, promotions, 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 because 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, without 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, expunge from our files any references to the unlawful transfer of David Hughey and the unlawful discharges 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 Philadelphia, Pennsylvania, for the Respondent.

Richard C. McNeill, Jr., Esq., (Sagot, Jennings and Sigmond), of Philadelphia, Pennsylvania, for 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 unsuccessfully tried to convince NDC to sign a collective bargaining agreement with it. This case, however, centers around the Union’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 involves 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 demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following

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 Commonwealth of Pennsylvania. Respondent admits, and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, Local 98 of the IBEW, is a labor organization within the meaning of Section 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 engaged in installing low voltage cables at a United Parcel Service 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 Raymond Della Vella, a business agent and organizer for the Union. On the second occasion Bobby Morone, owner of Enterprise Cable Group, a signatory contractor, also met these employees.

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 placed union handbills on the tables in the cafeteria/break room that was used by both NDC and UPS employees. Brian Tandarich, now the ranking onsite NDC employee, took some of the handbills to the UPS security office. An UPS security employee told Tandarich that UPS did not want Hughey to work on its property. Tandarich called Todd Stevenson, NDC’s Director of Operations, to inform Stevenson about what had transpired 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 Stevenson that he was joining the Union to obtain a higher wage. I find that Hughey either expressly or impliedly informed Stevenson that by joining the Union he intended to quit his job with NDC and take a job with a signatory contractor. Afterwards, Stevenson offered to promote Hughey to supervisor and give him a two-dollar 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, Pennsylvania to work with supervisor Jim Korejko. After Allentown, 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 security personnel. Hughey had a 45-minute commute to the Airport site and over a two-hour commute to the NDC projects he worked on after his transfer. Other NDC employees also routinely 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 encountered 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 distribute 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 assuming 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 desirable to Hughey and other employees precisely due to its proximity to their residences. Respondent concedes that it removed 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 reasonably tends to restrain, coerce or interfere with rights guaranteed 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 Section 8(a)(1) in offering David Hughey a $2 per hour wage increase. 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 anti-union 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 affirmative 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 No. 110 (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 activities, 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, Inc., 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 Section 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 “supervisor.” 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 description when it promoted him to “supervisor” or “senior supervisor.” 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 employees. Prior to Czyzewski’s departure, Tandarich, although a “senior supervisor,” had no administrative or supervisory responsibilities 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 Union. 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 January 8, 2002, with a view to having Tandarich sign another affidavit regarding his knowledge regarding the charge in case 4–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 precisely the opposite impression.[4] Despite Tandarich’s protestations that he didn’t want to be involved in the case, Murphy continued to seek his signature on an affidavit and asked Tandarich 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. 546-47).”

Moreover, Tandarich tried to condition his participation in the preparation of the affidavit upon his being given the opportunity 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 Murphy began working on a supplemental and more detailed affidavit. At Tandarich’s request, Murphy agreed to meet Tandarich 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 Tandarich 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 operations, fired Brian Tandarich ostensibly for giving a copy of the affidavit to the Union. Tandarich began working for a signatory 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, including a rotary hammer and power saw. There is no credible evidence 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 allegations regarding Brian Tandarich, if, I were to find, as Respondent contends, that Tandarich was a supervisor within the 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 statutory supervisor.

Section 2(11) of the Act, defines “supervisor” as “any individual 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 supervisors” 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 authori