Benjamin Franklin Plumbing

National Labor Relations Board - Administrative Judge Opinions

Dec 28, 2007

18-CA-018216 (N.L.R.B. Dec. 28, 2007)

JD–82–07
North Branch, MN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MJ MUELLER, LLC d/b/a
BENJAMIN FRANKLIN PLUMBING
and Cases 18–CA–18216
18–CA–18419
18–CA–18504
UNITED ASSOCIATION OF PLUMBERS
AND GASFITTERS, LOCAL UNION NO. 34.
Nichole L. Burgess-Peel, Esq., (Region 18, NLRB)
of Minneapolis, Minnesota, for the General Counsel
Travis D. Stottler, Esq., Jonathan R. Cuskey, Esq. (Miller Law Office, P.A.),
of Wyoming, Minnesota, for the Respondent
Nicole M. Blissenbach, Esq. (Miller-O’Brien Cummins),
of Minneapolis, Minnesota, for the Charging Party
DECISION
INTRODUCTION
DAVID I. GOLDMAN, Administrative Law Judge. These cases involve a small commercial
and residential plumbing business operated from an office in North Branch, Minnesota, some 40
miles north of Minneapolis. Its three bargaining unit employees organized in November 2006.
The General Counsel of the National Labor Relations Board alleges that in November, 2006,
before recognizing the union, the employer engaged in an unlawful interrogation and unlawfully
threatened an employee. The General Counsel alleges further unlawful threats and directives in
June 2007. Collective bargaining, which began in November 2006, stalled in May 2007, and the
General Counsel alleges that since May 2007 the employer has unlawfully engaged in overall
surface bargaining without intent to reach agreement. Finally, the General Counsel alleges that
two of the bargaining unit employees were unlawfully discharged in June 2007, in retaliation for
their protected activity regarding a pay dispute with the employer, and/or, alternatively, as part
of an effort by the employer to thwart its bargaining obligation.
STATEMENT OF THE CASE
Based on unfair labor practice charges filed by the United Association of Plumbers and
Gasfitters, Local Union No. 34 (the Union), the General Counsel of the National Labor Relations
Board issued a consolidated complaint on August 31, 2007,1 alleging violations of Sections 8(a)

1All dates are from 2007 unless otherwise indicated.
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(1) and (3) of the National Labor Relations Act (Act) against MJ Mueller, LLC d/b/a Benjamin
Franklin Plumbing (Ben Franklin or the Respondent). The General Counsel issued an
amendment to the consolidated complaint on October 10 adding allegations that the
Respondent violated Sections 8(a) (1) and (5) of the Act. The Respondent filed answers to the
consolidated complaint and to the amendment to the consolidated complaint denying all alleged
violations. At the outset of the trial, the General Counsel orally moved to amend the complaint
to add an additional allegation in support of the 8(a) (5) allegation. That motion was granted.2
This dispute was tried in Minneapolis, Minnesota on October 16, 2007. Counsel for the
General Counsel and counsel for the Respondent filed briefs in support of their positions on
November 20. On the entire record, including my observation of the demeanor of the witnesses
and other indicia of credibility, and after considering the briefs filed by the parties, I make the
following findings of fact, conclusions of law, and recommendations.
JURISDICTION
The Respondent admits and I find that at all material times it has been an employer
engaged in commerce within the meaning of Section 2(2) and (6) and (7) of the Act. Based on
the record, I also find that at all material times the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
FINDINGS OF FACT
A. Recognition of the Union
The Respondent operates two Benjamin Franklin Plumbing franchises from its office in
North Branch, Minnesota. The Respondent’s owner is Michael Mueller. In the fall of 2006,
Mueller employed three plumbers in addition to office personnel. They were Steven LaMont,
Donald Doty, and Keven Vandewetering. Mueller, himself a plumber, also performed plumbing
and other service work for the business.
In the fall of 2006, Mueller hired a consultant to analyze the business and offer advice on
changes that could be implemented to make the business more profitable. The conclusions (as
set forth in Resp. Exh. 8) included pointed concerns about the productivity and efficiency of
staff. A number of recommendations were proposed, including increased efforts to track and
raise employee work efficiency.
In October 2006, Mueller sent LaMont on a “ride-along” with a plumber from a Ben
Franklin franchise from the Twin Cities. Mueller wanted LaMont to see how this other company
operated. It happened to be a union company and during their time together LaMont and his
host discussed and compared their operations and terms and conditions of employment. The
union company sounded “very attractive” to LaMont and ultimately the union employee provided
LaMont with the name and number of Plumbers Union Organizer Gary Schaubschlager.
LaMont contacted Schaubschlager and a meeting was arranged for October 25, 2006.
LaMont and Doty met with Schaubschlager at an area restaurant on this date. At the
meeting they discussed the merits of unionization and the process of obtaining representation.

2I note that throughout this decision references to “the complaint” are to the sum of the
extant complaint allegations that are the product of consolidated complaint and the amendments
thereto.
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Doty and LaMont signed authorization cards at this meeting. Vandewetering signed a card that
was provided to Schaubschlager a few days later.
On the morning of November 1, 2006, Schaubschlager, accompanied by a union field
representative, arrived at the North Branch Ben Franklin shop. Employees were leaving a
weekly meeting when Schaubschlager entered the building. Schaubschlager introduced himself
to Mueller and, holding up LaMont and Doty’s authorization cards, announced that he was there
to seek voluntary recognition of the Union.3
Mueller said, “Oh good, the Union’s here. . . . Oh yeah we can talk about that.” With
regard to cards he said, “I don’t have time to view them at this point in time, but we can get
together this afternoon.” Mueller retreated to his office. Schaubschlager followed him in and
gave him and his secretary a business card. Schaubschlager left the office and saw Doty in the
hallway as he emerged. Doty was moving between the garage and the storeroom in the
hallway loading trucks. Mueller came out and said to Doty something to the effect of, “[d]id you
sign on with the Union.” Doty told him yes. Mueller said, “[f]ine, I can work here alone,” and
then stormed off through the garage toward the trucks.4
Schaubschlager reached Mueller the next morning and asked Mueller about the request
for voluntary recognition. Mueller told him that “he was soon to be a unit of one and that he had
no intention of having a union at his place of business.” Schaubschlager replied, “Well, then I’ll
have to do what I have to do.” Schaubschlager then filed a representation petition with the
Board and an unfair labor practice charge.5
Prior to the hearing in the representation case scheduled for November 16, Mueller and
Schaubschlager reached an agreement on the pending charge and petition. In exchange for
withdrawal of the petition and the pending unfair labor practice charge, Mueller agreed to
voluntarily recognize the Union. Schaubschlager faxed Mueller copies of the authorization
cards and they had their first bargaining session on November 22, 2006.
On November 15, 2006, Mueller again conducted a weekly employee meeting. At the
meeting, the employees watched a Ben Franklin instructional video, and marked

3Schaubschlager knew that Vandewetering was planning to give a 2 week resignation notice
that day. He therefore “saw no reason to bring Keven into it . . . so I didn’t display the card that
Keven gave me.”
4This account is based on the credited testimony of Schaubschlager and Doty. They
provided mutually corroborative accounts of Mueller’s conduct with straightforward and credible
demeanor. Mueller’s account was somewhat vaguer, and as he was wont to do, his testimony
on this point rambled quite a bit. However, his version of events was not significantly in conflict
with Doty and Schaubschlager’s account, and he did not deny the conversation with Doty, or the
comments attributed to him. Mueller added that he asked Vandewetering in the back of the
warehouse, “Hey Keven, what’s up with this,” and that Vandewetering told him he signed an
authorization card. I make no finding that Mueller unlawfully questioned Vandewetering about
the union drive as his testimony was vague, confusing, and no one else (Vandewetering did not
testify) referenced any such comment.
5The charge, assigned case number 18–CA–18205, did not relate to the comments to Doty
but, rather, to a claim that, after the demand for recognition by Schaubschlager, Mueller had told
LaMont not to report for work the next day.
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Vandewetering’s last day at work as a full-time employee. At the meeting, Mueller announced
that in order to make the franchise more profitable he was “going to start to work in the field and
jobs would trickle down from there.” Previously, Mueller had performed mostly bids and made
estimates for customers, performing plumbing jobs only when work was too busy for the
employee-plumbers. At the meeting he announced that he would take service calls which would
leave less work for LaMont and Doty.
Doty testified that after this point, his workload declined steadily and that by January “I
was pretty much getting maybe one call, two calls a week, if that.” LaMont also had less work
and in February and had no work for some weeks, but in March he was recalled and began
working steadily. Mueller testified that the business began to slow in the winter and there was
insufficient work available to keep the employees busy during this time.
B. Bargaining
The parties bargained steadily from November 2006 through April 2007. During this
time, Mueller and Schaubschlager met to bargain a total of 12 times, approximately every 1 to 3
weeks. In addition, sidebar meetings were held in which Mueller and Steve Pettersen, Vice-
President of the Minnesota Mechanical Contractors Association, met with Stan Theis, the
business manager of Local 34 of the Plumbers Union. Mueller’s attorney at this time, Doug
Seaton, also attended sometimes. Schaubschlager did not attend these sidebar meetings, but
based on the testimony these meetings were ongoing and an important part of the process.
Schaubschlager “felt that the negotiations were going quite well from where we started to where
we ended up.”
At an April 18, 2007 meeting Schaubschlager offered counterproposals to Mueller’s April
9 proposals. Mueller indicated he saw some problems with Schaubschlager’s counterproposals
but said he would look at them. According to Schaubschlager, Mueller said “I’ll get back to you.”
A meeting was scheduled for May 8.
Before May 8, Region 18 of the Board took action to dismiss various charges filed by the
Union and pending against the Respondent. Previously, during the course of this bargaining, on
November 28, 2006, the Union had filed an unfair labor practice charge, filed as case 18–CA–
18216, alleging several discrete unfair labor practices. This charge was amended on November
30, 2006 and again on January 26, 2007, and the Region issued a complaint on several
allegations contained in this charge. However, on April 30, the Region withdrew the complaint
and conditionally dismissed the charge, subject to reinstatement if additional unfair labor
practices were alleged within six months.6 At this time, the Regional Director also dismissed,
unconditionally and on the merits, several other allegations contained in case 18–CA–8216 as
well as all the allegations contained in two other charges filed by the Union against the
Respondent. Thus, the April 30 letter dismissed, either unconditionally or conditionally, all
pending NLRB allegations against the Respondent.

Mueller failed to attend the May 8 meeting. After waiting half an hour Schaubschlager
called Mueller and Mueller said “Oh, did we have a meeting today?” Schaubschlager said yes.

6In his letter withdrawing the complaint, the Regional Director stated that “the Charged Party
has not otherwise violated the Act; the Charged Party voluntarily recognized the Union on [or]
about November 15, 2006; the Charged Party has continued to bargain with the Union since
that time; and approximately six months have passed since the Charged party’s unlawful
conduct occurred. In these circumstances, further proceedings are not warranted at this time.”
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Mueller said that he had been waiting to hear from Pettersen. Schaubschlager told Mueller that
“it is my understanding, or I’ve been led to believe, that Steve Pettersen is not willing to bargain
on your behalf any longer.” Mueller said that they would need to reschedule, and that he had to
talk to Pettersen to find out what was going on. Asked how things were left, Schaubschlager
testified that “[w]ell, I left it that for the time being because the—we had made the last proposals
to him. We were waiting for a response. I saw no point in negotiating against ourselves.”
Schaubschlager testified that his “understanding” was that Mueller would be getting back to him
after talking to Pettersen.
When Mueller got back to Schaubschlager by letter dated June 6, his response evinced
an understanding contrary to Schaubschlager’s. Mueller wrote:
Substantial time has passed since our last conversation. At that time you said
you would contact me to schedule future negotiations. You have not done so. I
therefore conclude that the union is not interested in further negotiations.
Mueller testified that in the spring he met a lot with “Pettersen and Theis. They were—we were
trying to put together a deal so we could go forward.” He also testified that “[w]hen I called
Pettersen, he told me that the Union wasn’t interested anymore.” According to Mueller, that is
what prompted him to write the June 6 letter.
Schaubschlager responded by letter to Mueller dated June 8. He stated:
At our April 18, 2007 meeting I provided you with our latest proposals. You
indicated to me you were going to look them over and get back to me. We then
scheduled a meeting for May 8 2007 and you failed to show up at that meeting.
It is my understanding that Steve Pettersen is no longer interested in bargaining
on your behalf and I stated that to you in our phone conversation in May. I have
no reason to believe his position on the matter has changed.
I intend to continue to bargain in good faith with you and hopefully we can come
to an agreement satisfactory to both sides.
I suggest you and I meet on Tuesday June 26 at Perkins in Forest Lake at 9 am.
If this does not work for you please let knew and we can re-schedule.
Schaubschlager did not receive a response to this letter, and on that basis did not attend
the meeting he scheduled for June 26. Mueller claimed to the Region in pretrial position
statement that he attended the meeting, but Schaubschlager did not show, adding to his view
that the Union had lost interest in bargaining. There was no further bargaining or attempts to
schedule meetings until Schaubschlager’s August 30, 2007 letter to Mueller stating that “I would
like to resume our negotiations that have been absent since May.”7

7Schaubschlager’s renewed interest in bargaining coincided—surely not coincidentally—with
Region 18’s decision, announced in an August 30 letter from the Regional Director to prosecute
the Respondent for the discharge over the summer of Doty and Lamont (to be discussed in
detail below) and to revive and issue a complaint on the allegations against the Respondent that
were conditionally dismissed on April 30.
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In his August 30 letter, Schaubschlager proposed that the parties meet September 18 at
the Forest Lake Perkins at 9 a.m. This time, Schaubschlager wrote that “I expect you to RSVP
me by September 14, 2007 if this date is acceptable or unacceptable to you.” Schaubschlager
included his phone and fax number in the letter. Having heard nothing from Mueller, on
September 17, Schaubschlager wrote Mueller indicating that “[b]ecause I have not heard from
you, I have concluded that you are refusing to bargain further with the Union.” He added that,
“[j]ust in case you change your mind and decide you are willing to bargain, I will be at the Forest
Lake Perkins at 9:00 a.m. on September 18, 2007 as planned.” That same day Schaubschlager
filed a refusal to bargain unfair labor practice charge against Ben Franklin (assigned case
number 18–CA–18504). Mueller did not show up for the September 18, 2007 meeting.
However, Mueller called Schaubschlager that afternoon or evening and told Schaubschlager
that “he doesn’t always get his faxes, that the best way to reach him is over his phone.”
Schaubschlager pressed Mueller for a meeting and Mueller said not until after September 26,
the date on which the instant hearing was then scheduled to begin. The hearing was
subsequently postponed and on September 24, Schaubschlager wrote Mueller proposing three
potential dates for negotiations. Mueller agreed to meet October 2 at 9 a.m. He later
rescheduled the meeting for 11 a.m. because of a doctor’s appointment.
The morning of October 2, at about 10:30 a.m., Mueller’s secretary contacted
Schaubschlager and told him that Mueller was still waiting to see the doctor and
Schaubschlager asked her to have Mueller call when he was finished at the doctor. Mueller
called at about 11:45, and asked if they could meet at 2 p.m. Schaubschlager, who was waiting
at the Perkins restaurant, insisted that Mueller meet him, and Mueller arrived at the meeting at
about 12:15 p.m. They met for approximately 45 minutes, which was the typical length of their
bargaining sessions. Mueller arrived without proposals, or even a notepad, but when
Schaubschlager remarked upon this, Mueller pointed to his head and declared that “I have it all
up here.” According to Schaubschlager’s account of the meeting, they reviewed the Union’s
proposals and discussed the “hang ups” the parties had on particular proposals. During the
meeting Schaubschlager asked Mueller about the Union’s request for information mailed to
Mueller on September 26. Mueller stated that he had received it and that the information was
being complied and would be sent to Schaubschlager. The Union proposed meeting again on
October 15 and Mueller said that he would prefer to meet October 23.
By letter dated October 4, the Union submitted a proposal to Mueller for an agreement,
including settlement of all unfair labor practice charges.
By letter dated October 4, 2007, in a position statement submitted to NLRB Region 18
regarding 18–CA–18504, Ben Franklin’s counsel stated that “while my client has not completely
ruled out future negotiations with the Union, he will refrain from negotiating with the Union any
further until the charge filed against him by the NLRB for refusing to negotiate is addressed and
resolved.” This was reiterated and expanded in an October 12 letter to the Region in which
counsel for Ben Franklin declared that Mueller would not negotiate with the Union “until the
charges filed against him by the NLRB with respect to Cases 18–CA–18504, 18216 and 18419
have been resolved.”
C. Doty’s termination
Doty, a licensed master plumber, was hired by Mueller to work at Ben Franklin on July 6,
2006. As discussed above, after recognition of the Union, Doty’s work hours began declining
and by January 2007 he was getting one or two calls per week. The reasons for this are not
directly at issue in this case, but provide background. Mueller maintains that Doty was hired to
build business for a new St. Cloud area franchise and his failure to do that meant that Doty, as
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last hired, would have the last pick of work available in the North Branch area. This, along with
the increase in the number of plumbing jobs that Mueller personally performed, and a general
seasonal decline in business, left Doty with little work. Clearly, he was the last choice for
service work after January. Given Mueller’s comments after the union drive, one cannot help
but wonder about the motive for the diminishment of work. I note, however, that Region 18
declined to bring to trial charges filed by the Union over Doty’s reduction in hours. G.C. Exh. 4.8
After April 30, 2007, Doty continued to receive few, if any, work calls from Ben Franklin.
In the first week of June, LaMont told Doty that he believed hours were missing from his pay
and that he had asked for his timesheets. LaMont told Doty that the Respondent’s
administrative assistant, Patti Norrgard, had said that Mueller had changed the timecards and
that LaMont would have to take it up with Mueller. LaMont told Doty that he too should request
his timesheets to “double-check to make sure [Doty] wasn’t shorted any hour or time.” Doty told
LaMont that he should take criminal action against Mueller and that he should call
Schaubschlager.
On Thursday, June 7, Doty called Ben Franklin and requested his timecards in a
conversation with Patti Norrgard. Doty told her that LaMont had said there were some
questions on this and that he wanted to check his. In this conversation Doty asked Norrgard
how business was and told her “basically my truck hadn’t moved for a month and grass was
growing around it so I had to move it for mowing and stuff.”
The next day, Mueller stopped LaMont in the hallway at work and told LaMont that Doty
had called and asked for his timecards. Mueller told LaMont “to no longer talk with Don about
this issue and also he was gonna pick up Don’s truck from his house and not to inform him or let
him know about this.”9 That day, Mueller called Doty and left a voice mail stating that he would
come by Doty’s house and pick up the Ben Franklin truck. On Saturday, June 9, Mueller picked
up the truck. On Thursday, June 14, he wrote Doty:
On Saturday June 10, [10] 2007, I came to your home to pick up the Ben Franklin
Plumbing truck. In the truck, I found your uniforms and cell phone, which I also
took away with me. Because you left those items in the truck, I assume that you
are resigning from your position with Ben Franklin Plumbing.
The letter also contained forms and information regarding Doty’s right to choose COBRA
coverage to continue his health insurance.
Approximately one week later, Doty called Mueller and said that, contrary to Mueller’s
letter, he was not resigning. Doty told him that he put the uniform and company phone “in the
truck to keep it together” but that he was not quitting. Mueller acknowledges that he probably
responded by saying, “Ok.” However, on approximately June 26 or 27, Mueller called Doty and
told him that his services were no longer needed. He told Doty to remember to sign up for
COBRA because his health insurance would expire at the end of the month if he did not.

8LaMont’s hearsay testimony that dispatcher Elizabeth Hatch told him in May 2007, that
“[w]hen I was hired, I was specifically told not to give Don any service calls,” is plausible, and
not surprising, but does not further elucidate the motive for limiting Doty’s work.
9LaMont’s account of this conversation was not disputed by Mueller and it is credited.
10The actual date was Saturday, June 9.
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No explanation was provided to Doty about the grounds for the termination. Mueller
maintained at trial that the motivation for terminating Doty was his solicitation of work while on a
service call for Ben Franklin. Doty did not dispute, and essentially conceded, the events
described by Andrew Fiedler, who in March 2007, was the chairman of the board of trustees of
the American Legion Post in Cambridge, Minnesota. On March 9 or 10, Fiedler and his
manager called Ben Franklin seeking plumbing help with some toilets. Doty received the
assignment and went to the American Legion building. When he arrived, Fiedler mentioned that
the Legion was planning to get bids to do remodeling, but that more immediately he needed the
toilets fixed. Doty fixed the toilets, but in reference to the remodeling job, Fiedler testified that
Doty told him,
‘Well, if you plan on getting a bid from Ben Franklin, you can expect to pay 10 to
15 percent more just to have that big, blue piece of shit pull up,’ and then he
pointed out the window to the Benjamin Franklin truck, which is blue.
Doty also told Fiedler that “he hadn’t worked, hadn’t been called out to a job since
January, I believe he said, and that now that Mike and the other guy that are taking up all the
jobs don’t want to do this shitty job, they call me finally.” Towards the end of the service call,
Doty told Fiedler that “[i]f you have Mike . . . come out and bid the job, you know, you can
expect a 10 to 15 percent markup and the job will be half-assed. I can do it better if you want to
get a bid from me . . .instead.” Doty told Fiedler that he was “working on the side” but that his
employer was not aware of it. Doty provided Fiedler with a business card—not a Ben Franklin
card, but a card referencing a company with Doty’s name.11
A few weeks later, during the second week of April, Fiedler called Ben Franklin and
asked for someone to come to the Post to give him a bid on the remodeling job. Later in April
Mueller came to review the proposed job. While Mueller was there, Fiedler gave him the card
Doty had left and told Mueller about Doty’s comments.12
There can be no doubt that Mueller was concerned about the potential for plumbing
employees to generate work for themselves while on the job for Ben Franklin. Indeed, Mueller
required Doty and LaMont to sign “non-compete” agreements when they took the job with Ben
Franklin. Mueller’s insistence on these agreements conclusively demonstrates his concern with
the issue of soliciting work on the job, a concern that preceded any events in this case.
However, when Fiedler reported Doty’s conduct to Mueller, Mueller said nothing to Doty about
the incident, or about the “non-compete” agreements. Mueller took no steps to discipline or

11Fiedler’s dislike of Doty was evident in his testimony. In certain circumstances that might
give me pause in assessing credibility. However, Doty essentially admitted many of the
comments Fiedler attributed to him, directly admitted he “probably” or “might’ve” said other
comments attributed to him by Fiedler, and disputed none of Fiedler’s testimony. Accordingly, I
credit Fiedler’s undisputed account of the incident. I note that Doty was present in the hearing
room during Fiedler’s testimony.
12Fiedler testified that Mueller had reviewed the job in early May, but I find he was mistaken.
Mueller’s testimony that he reviewed the job in April is consistent with the April 30 date on the
bid proposal, which, in accord with Mueller’s testimony, would have been prepared after Mueller
visited the site to learn the details of the job.
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terminate him Doty. Rather, he “just never called him back in to work.” According to Mueller,
“[i]n my mind he was terminated, officially on paper he wasn’t terminated.”13
D. LaMont’s termination
LaMont was hired by Mueller at Ben Franklin in July 2005. He worked as a plumber
performing service work, repairs, remodeling, drain cleaning, and some new construction work.
LaMont was terminated June 12, 2007, during a contentious meeting with Mueller about
Mueller’s practice, discovered by LaMont a couple of weeks earlier, of altering LaMont’s
timecards and paying him for less time than LaMont submitted on his pay cards. As discussed
below, Mueller believed that LaMont’s timecards overstated his compensable time. The
termination also followed, by one day, an incident at a customer’s house, reported by the
customer to Mueller, in which LaMont complained to the customer about Mueller’s pay practices
and showed some of the disputed timecards to the customer.
Beginning in January 2007, LaMont’s hours of work had declined, and by February
LaMont considered himself “laid off.”14 During the 2 week period he was laid off LaMont took a
plumbing job with Rooter plumbing. In March, upon his resumption of work with Ben Franklin,
LaMont received a “last chance warning” memo. As the basis for the warning the memo cited
the inadequate quality of LaMont’s work on a job in October, and the complaint by the customer
at this job that LaMont solicited business for himself from the customer’s girlfriend. In addition,
the memo upbraided LaMont for taking the job with Rooter. The memo termed LaMont’s
conduct “unacceptable” and stated that “[a]ny further misconduct of any kind will result in
immediate termination.”15
The Respondent’s plumbers were paid on an hourly basis for work performed during two
week pay periods. The employees filled out and submitted daily timecards setting forth hours
worked. In addition, when they moved from service call to service call during the day the
plumbers would call in to the office and an office employee would record the time they started
and completed jobs. These were entered into a computer and Mueller used these calculations
as the basis for calculating hours worked for pay purposes. Mueller testified that the manual
timecards submitted by employees provided certain inventory information but in terms of
calculating time, were more of a back up to the information entered into the computer. In the
Fall of 2006, then office administrator Amanda McAllister was approached by either Mueller or

13Asked by Ben Franklin’s counsel “[w]hy did you not explain to Mr. Doty the reasons why
he was being terminated,” Mueller answered: “That’s a good question. I don’t know.”
14Mueller asserted that it was not “an official layoff,” but rather, “[i]t was we don’t have
enough work.” However, he also referred to it as “that layoff time” and approved of LaMont
attending school for a week during this time.
15It is worth noting that at the hearing LaMont vehemently denied the assertions that he had
ever solicited work for himself, including the time described in the memo. He also stated that he
worked for the other plumbing company for 2 weeks when laid off from Ben Franklin and that
Mueller was aware of it. He testified that he was ready to resume work at Ben Franklin “[b]ut I
didn’t know if he was firing me permanently because what happened with Don Doty.” Unfair
labor practice charges filed over the warning given to LaMont were investigated and dismissed
by the Region on April 30 because, according to the dismissal letter, “there is insufficient
evidence to establish a prima facie case that the warning was motivated by LaMont’s union
activity.”
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Norrgard about potential discrepancies between the timecards submitted by LaMont and the
times recorded in the computer by McAllister. McAllister told Mueller and/or Norrgard that they
needed to go over the timecards and computer information with the plumbers. McAllister
testified that a cause of the discrepancies in LaMont’s case was the times when LaMont would
indicate he was going to put, for example, 3:15 p.m. on his timecard which would include time
for him driving to next job, while McAllister would enter 3 p.m., which was the time she believed
he finished the job. By the end of the fall McAllister says that this was happening daily and she
talked with Mueller about it monthly in the Fall of 2006.16
In early May it occurred to LaMont that his paychecks were less than they had been in
the past. He requested that Norrgard review the payroll figures for that week. She did and told
LaMont that everything was correct. LaMont still thought “it didn’t seem right to me, so I started
keeping track . . . . of my time.” He did this for the pay period covering May 5 thru May 19.
Employees were paid approximately 2 weeks after the end of a pay period so LaMont was paid
for the May 5 thru 19 period on approximately June 1. When he got his paycheck he compared
it to the time he had recorded and found that he had not been paid for approximately 11 hours
he had recorded as worked over the 2-week pay period. This prompted LaMont, on June 1, to
request from Norrgard copies of his timecards he had submitted for the pay period covering May
1 to 18. When she provided them to LaMont it appeared that on some of the timecards the
hours he had submitted had been circled and a lower number of hours written in. LaMont was
paid for the lower number of hours written in.
When LaMont saw this he called Mueller on June 5. LaMont said “Mike, what’s going
on” and Mueller expressed chagrin over the situation. According to LaMont’s undisputed (and
credited) testimony, Mueller told him: “I’m a Christian man. I know I shouldn’t have been doing
this and I have a bitter taste in my mouth about the union situation.” LaMont responded, “Mike,
if I was stealing from you over the past two years, by now I should’ve been fired.”
The next day, June 6, LaMont wrote a note to Mueller requesting copies of his timecards
since his date of hire. In his letter LaMont said he wanted to be “paid back for the time taken off
my timecards by the end of next week 6-15-07.” LaMont added that
When I was hired I was told by Mike, I was an hourl[]y employee. Mike also said
the work day is [from] 8-5 and paid drive time. (original emphasis).17

16McAllister left full-time employment with Ben Franklin in January 2007 and worked only 4–
5 days total after that through the Spring of 2007.
17I note here that the issue of whether “drive time” to and from jobs was to be included in
compensable hourly pay appears to have been at the bottom of the pay dispute. Mueller
testified that this was the source of the discrepancy between the hours he paid LaMont and the
hours submitted by LaMont on his timecard. Mueller’s position was that compensable time
began when a plumber arrived at his first job, not when he left home to drive to the job, and did
not include driving to and from jobs. According to Mueller, both the issue of timecards not
matching the computer records, and the issue of drive time compensation were repeatedly
addressed in employee meetings. LaMont seemed unaware of this and contended that when
he was hired he was told that drive time was to be included. Although less than pellucid, based
on Mueller’s testimony, I conclude that a change in the drive time rule, or at least a change in
the enforcement of the rule, began sometime after the consultant’s report, probably around
January when the evidence (albeit hearsay and circumstantial) suggests that Mueller began
changing timecards.
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After writing this letter LaMont approached Norrgard seeking access to his personnel
file. This enabled LaMont to see many (but not all) of his past timecards and it appeared to
LaMont that the changes to the timecards had been going on for some time. According to
LaMont, Norrgard confirmed this, saying “I had nothing to do with this. Mike’s been doing this
ever since January.”
As discussed, above, LaMont talked to Doty and got him to request pay cards. LaMont
told Doty that his timecards had been altered and that Doty should also check to see if it had
been happening to him. In addition, LaMont left a message with Vandewetering suggesting that
he should do the same.18 Doty suggested that LaMont should contact Schaubschlager and he
did that too. Doty also suggested that LaMont “should contact the authorities,” i.e., the police,
about the pay discrepancy, advice that, as discussed below, LaMont eventually followed.
On Friday June 8, Mueller told LaMont not to talk to Doty about the timecard issue and
told LaMont he was going to pick up Doty’s truck, but not to let Doty know this.
On Monday June 11, LaMont was assigned a service call at the home of Teri Recht. In
February 2007, Recht, a small business owner, joined a business networking group of which
Mueller was a member. She saw Mueller at the group’s weekly meetings, and through these
meetings the two had exchanged referrals. Recht needed some plumbing work done on pipes
in her backyard shop in the “pole barn,” and some additional work in the kitchen of her house.
She contacted Ben Franklin (probably through Mueller), and LaMont came to her house June
11. She had met him once before on a previous service job. While LaMont was working on the
sinks in the house Recht was making breakfast and after asking her employee if she wanted
breakfast, Recht asked LaMont if he wanted some. LaMont said he did, and thanked Recht
profusely, commenting that “he couldn’t believe somebody would ask him to do that.” While
they ate, Recht asked him how he like working for Mueller. According to Recht, “He didn’t
respond about Mike. He just said that he would like to work for someone that was honest and
something about integrity.” LaMont repeated these comments several times over the course of
the morning and explained to Recht about the timecard issue. Later, LaMont was leaving and
came back inside to get payment from Recht. They talked some at the door, and LaMont asked
Recht if she wanted to “see the timecard that was altered.” Recht went out to his truck and
“then he pulled out his timesheets and he explained that Mike had not paid him for certain hours
and that there was something about a plumbing part that supposedly Steve had took from a
house that I didn’t really understand because it had nothing to do with me, but so he thought
that Mike was not paying him for what he deserved.” LaMont’s disclosures, no doubt
encouraged by Recht’s hospitability, did not go over well with Recht. “I really didn’t want to hear
about it, and so I pretty much left.”19

18As referenced, Vandewetering had left full-time employment with Ben Franklin in
November 2006, but, in fact, continued to work on an “on call” basis.
19I found Recht to be a highly credible witness. She gave her account without exhibiting any
animus toward LaMont, or any effort to color her account to suit any party, or to justify her
decision (discussed below) to report the conversation to Mueller. In any event, for the most
part, Recht’s account was not in conflict with LaMont’s, who also testified to events at Recht’s
home. The discrepancies were minor. LaMont described being moved by Recht’s kindness in
serving her own employee breakfast and testified that he told Recht that “[i]t means a lot, you
know, when you show, you know, the gratitude towards your employees.” Consistent with
Recht’s account, LaMont testified that it was Recht’s questioning of how things were going at
work, combined with her informality and hospitality, that led him to make “small talk” that
Continued
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Recht was upset, specifically with the fact that LaMont had shown her the timecards,
and she told Mueller about it the next morning at their business networking meeting. According
to Mueller, Recht told him that LaMont said he was a “crook and that you ripped him off with his
timecards” and that he had shown her the timecards. Recht specifically denied telling Mueller
that Lamont used words like “crook” or “liar” in describing the incident to Mueller. She testified
that she told Mueller that LaMont had said that he “wanted to work for somebody that was
honest and had integrity.” I credit Recht’s account, although I do not doubt that in discussing
the incident with Mueller, Recht’s (completely reasonable) impression that LaMont questioned
Mueller’s ethics with regard to the pay issue was conveyed to Mueller.20
LaMont began the morning of June 12 by selling “a well job” on his first call. Mueller was
excited to learn about this, which suggests that he had not yet talked to Recht when LaMont
called in to report the sale. LaMont was sent to another service call, and planned to return back
to install the well job when Elizabeth Hatch, from Mueller’s office, called and told him stop at the
office before going to complete the well job. When LaMont arrived she told him to go into the
back office room. Mueller was sitting at the table with papers and timecards in front of him. He
told LaMont, “I want you to sit down and go through these timecards, initial-off on them stating
that they’re okay.”
LaMont began to review the timecards. The first one had no changes from what LaMont
had submitted and he initialed it. The next one had his hours circled and a new figure written in.
_________________________
included his concerns with how things at work were “kinda uneasy, on the edge right now.” The
“major” conflict in their testimony is that Recht testified that LaMont did not mention the
timecards until he was at the door to collect payment, while LaMont testified that he mentioned it
during breakfast, and at the door asked if she wanted to see them. Both Recht and LaMont
were credible witnesses. I do not think it particularly significant but on this discrepancy I credit
LaMont over Recht, only because the conversation and the timecard dispute has had more
meaning for LaMont than for Recht. It is entirely possible that Recht never heard the reference
to timecards during breakfast. Although LaMont did not pick up on it, Recht did not really want
to hear “how things were going at work” when she asked.
20At Mueller’s request Recht prepared a written account of the incident on July 24, nearly
1½ months later. In that statement she attributed to LaMont the statement that “Mueller was a
dishonest employer that was trying to rip him off.” At the hearing, Recht denied that LaMont
used the words “rip him off” and did not recall him using the word “dishonest.” Essentially,
Recht’s testimony suggests that the July 24 statement was her impression and characterization
of what LaMont had meant, not what he actually said. The statement does raise the possibility
that that in reporting the incident to Mueller on June 12, she reported her impression of
LaMont’s comments, which were more pointed than the language that LaMont actually
employed. However, the statement, written at Mueller’s request 6 weeks after the incident,
does not support Mueller’s account that Recht told him that LaMont said that he was a “crook”
and a “liar.” Recht adamantly denied telling Mueller that. For reasons Recht described, she felt
that telling Mueller about the incident, particularly Lamont showing her the timecards, was the
right thing to do. However, my impression is that she undertook this self-assigned task with a
feeling of responsibility, and perhaps even reluctance that would not allow her to exaggerate
LaMont’s comments when reporting to Mueller. Mueller may have felt like he was being called a
“crook” and “liar” when he heard Recht’s report. I find she did not tell Mueller that LaMont said
that. I credit her testimony that she told Mueller what LaMont said. However, I allow for the
possibility that her impressions of the incident—i.e., that LaMont felt that Mueller was
dishonestly ripping him off—were conveyed.
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LaMont indicated he did not want to initial it. Mueller raised the issue of drive time not being
included in compensable hours.
At that point LaMont stood up announced that he wanted a third party to be present for
this meeting. LaMont started to exit the room. Mueller asked him “where are you going?”
LaMont said, “I want to go to my next job.” Mueller said, “[n]o, it’s your job assignment to sit
down and go through all these timecards and initial-off on them.” LaMont resisted, and said “No
. . . I want to go to my next job” and insisted that he did “not want to go over ’em, not unless I
have a third party there.” Mueller said, “I’m ordering you and I’m demanding you to go in the
office and initial-off on these stating that these timecards are right. I’m not paying you another
dime until you do this.” LaMont said, “Well, sounds to me if you’re not gonna pay me another
dime, you’re firing me.” Mueller said, “I’m not firing you, I’m laying you off then.” LaMont was
preparing to leave despite Mueller’s directive when Mueller raised the incident at Recht’s home.
Mueller said, “What you did yesterday, that was stupid.” At first LaMont either did not know
what Mueller was referring to, or pretended not to, but after Mueller pressed the issue, saying
that LaMont knew what he was referring to, LaMont said, “Yeah, I showed her the timecards.”
At that point, Mueller said, “All right, you’re fired. Get out of my office. Get out of here now.”
LaMont walked back into the meeting room in an effort to retrieve his timecards. However,
Mueller took them off his desk and ordered LaMont off the property. LaMont called the police.
He filed a complaint in an effort to obtain his timecards, but according to the police report,
Mueller did not have them all available and the police convinced LaMont to leave without the
timecards. That same day, June 12, Mueller wrote a letter “To Whom It May Concern,” a copy
of which was sent to LaMont, Seaton, and Schaubschlager, stating that LaMont was being
terminated because of “clear evidence” that Mueller characterized as LaMont “actively
discrediting Mueller’s Ben Franklin Plumbing Co. and Mike Mueller himself.” According to the
letter, Recht had reported to Mueller that LaMont had said that “Mike Mueller was cheating him
by taking time off on Steve’s timecards, and that Mike was crooked. Steve then took out copies
of his timecards and actually showed them to the client, in an attempt to make his case.”
E. New employees hired
With LaMont and Doty’s termination, Ben Franklin had no full-time plumbing employees,
although Vandewetering remained a part-time bargaining unit employee. Three additional full-
time employees’ plumbers were hired in the next months. Ryan Green, an apprentice plumber
was hired at the end of July 2007. Keith Betters, who specialized in drain cleaning, was brought
in to do drain cleaning in August. In early September, Russell Newcomb, an apprentice
plumber was hired, and he was assigned to develop the St. Cloud franchise business, a
responsibility that Doty had maintained.
LEGAL ANALYSIS
A. Alleged 8(a)(1) threats and questioning
(Paragraph 5 of the complaint)
Section 8(a)(1) of the Act provides that “It shall be an unfair labor practice for an
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employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed
in section 7 [of the Act].” 29 U.S.C. § 158(a)(1). Section 7 of the Act protects employees’ right
to engage in "concerted activity" for the purposes of "collective bargaining or other mutual aid or
protection." 29 U.S.C. § 157. In the complaint, the Government alleges that certain comments
made to employees by Mueller violate Section 8(a)(1) of the Act. I consider each, below.
1. November 1, 2006
(Paragraphs 5(a) and (b) of the complaint)
The General Counsel alleges that Mueller’s comments to Doty on November 1, 2006,
immediately after being confronted with the Union’s demand for recognition, violated the Act.
To review, after Schaubschlager held up two union cards (Doty’s and LaMont’s) and demanded
union recognition, Mueller, without examining the cards, retreated to his office and then, telling
Schaubschlager he would contact him later, exited his office and headed to the garage. In the
hallway he encountered Doty. Mueller said something to the effect of “[d]id you sign on with the
Union.” Doty told him yes. Mueller said, “fine, l I can work here alone,” and then walked off
through the garage toward the trucks.
The General Counsel contends that Mueller’s first question to Doty—“did you sign on
with the union”—constituted unlawful interrogation. The General Counsel alleges that Mueller’s
second comment, made after Doty indicated that he had “signed on” with the Union—“fine, I can
work here alone”—constituted an unlawful threat to reduce hours for Doty and other employees
because of their choice of union representation.
The Board has identified a number of factors that are “useful indicia”21 in determining
whether the questioning of an employee constitutes an unlawful interrogation,22 however, there
are no particular factors “to be mechanically applied in each case.” Rossmore House, 269

21Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998), quoted approvingly in
Westwood Health Care Center, 330 NLRB 935, 939 (2000).
22These include the “Bourne factors”, enunciated in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964), and set forth in Westwood Health Care Center, supra at 939:
(1) The background, i.e. is there a history of employer hostility and discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear to be seeking
information on which to base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he in the company hierarchy?
(4) Place and method of interrogation, e.g. was employee called from work to the boss’s
office? Was there an atmosphere of unnatural formality?
(5) Truthfulness of the reply.
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NLRB 1176, 1178 fn.20 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985); Westwood Health Care
Center, 330 NLRB at 939. Rather, the Board has explained that “[i]n the final analysis, our task
is to determine whether under all the circumstances the questioning at issue would reasonably
tend to coerce the employee at whom it is directed so that he or she would feel restrained from
exercising rights protected by Section 7 of the Act.” Westwood, supra at 940; Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985).
If Mueller’s question to Doty—“did you sign on with the union”—could be isolated from
his follow-up remark—“fine I can work here alone”—there might be a colorable argument that
this one question was not coercive.23 While Doty was not yet an open union supporter, this
event occurred at a time when Schaubschlager was, presumably with Doty’s consent, trying to
show Mueller the union authorization card Doty had signed. Moreover, the questioning was not
persistent or repeated, and took place in an open hallway. While Mueller was the head of the
company, he was also someone who worked daily with Doty. But Board precedent counsels
that the interrogation must be considered under all the circumstances. Here, the circumstances
include the critical fact that the sole identifiable purpose for Mueller’s question to Doty was as a
predicate for, and part and parcel of a crude and obviously coercive threat to eliminate work for
or fire Doty and others, precisely because of his affirmative answer to the question of whether
he had “signed on with the union.” The second comment by Mueller, almost in the same breath
as the first, was a straightforward barely veiled threat of job loss for “signing on with the union”
and would undoubtedly have a tendency to interfere, restrain and coerce Section 7 rights.
Thus, “the questioning did not occur in a context free of other coercive conduct” (Demco New
York Corp., 337 NLRB 850, 851 (2002); see, Millard Refrigerated Services, 345 NLRB 1143,
1146–1147 (2005)). Rather, it occurred as a constituent, inextricable part of a threat of job loss.
While the conversation might have been impromptu, there was nothing causal or accidental
about it. Under the circumstances, the interrogation, like the threat of job loss, was highly
coercive and violated Section 8(a)(1) of the Act as alleged.
2. November 15, 2006
(Paragraph 5(c) of the complaint)
The Government also alleges that at the November 15, 2006, employee meeting Mueller
unlawfully threatened to remove bargaining unit work from employees and assign it to himself,
thereby reducing employees’ work hours, if employees chose union representation.
Certainly, the evidence does not show any explicit comment to this effect by Mueller.
Rather, the evidence shows only that at this meeting, Mueller announced that in order to make
the franchise more profitable he was “going to start to work in the field and jobs would trickle
down from there.” Is this an implicit threat? Obviously, the fact that Mueller’s initial response to
learning about the union drive two weeks earlier was to tell Doty “fine, I can work here alone,”
gives legs to this allegation. However, other factors do not support the claim. In coming months
employees’ hours, particularly Doty’s, were reduced, yet the Government does not allege that
the reduction in hours was unlawfully motivated. Indeed, a charge to that effect was dismissed,
based, in part, on the legitimacy of the consultant’s study, commissioned by Mueller prior to any
union activity that supported the legitimate need for extensive changes in employment practices.
It is incongruous for the General Counsel to contend that Mueller’s statements that he intended
to increase his own service work and reduce employees’ work was reasonably and objectively

23Although, in general, it is unlawful for an employer to inquire as to the union sentiments of
its employees. President Riverboat Casinos of Missouri, Inc., 329 NLRB 77 (1999).
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an implicit threat of retaliation for the union campaign, yet accept that Mueller’s institution of this
operational change was a legitimate business-motivated action. The evidence does not show
that the statement of intention to change operating procedures was an implied threat of
retaliation for the union campaign.24
3. June 5
(Paragraph 5(d) of the complaint)
The Government alleges in ¶5(d) of the complaint that the “Respondent, in a telephone
conversation with an employee, threatened the employee that Respondent was reducing the
employee’s hours reported on the employee’s timecards because of the employee’s support for
the Union.”
The complaint references the comment made by Mueller to Lamont when LaMont
telephoned on June 5, after learning about the altered timecards. Lamont said, “Mike, what’s
going on.” Mueller expressed chagrin over the situation. According to LaMont’s credited
testimony, undisputed by Mueller, Mueller told him: “I’m a Christian man. I know I shouldn’t
have been doing this and I have a bitter taste in my mouth about the union situation.” LaMont
responded, “Mike, if I was stealing from you over the past two years, by now I should’ve been
fired.”
I do not believe that it has been proven that Mueller changed the timecards in retaliation
for the employees’ union activity. Rather, Mueller believed that LaMont was filling out his
timecards wrong. He believed that driving time should not have been included in compensable
time and he believed LaMont was including it. He also had been told by dispatcher Amanda
McAllister that drivers were not putting the same time on their timecards as she was submitting
to the software program tracking hours. That is what led Mueller to alter the timecards.

24I recognize that Mueller testified that the business operations consultants he hired to
review his operation suggested he work less, not more, in the field. This would seem to
undercut use of the study as a rationale for Mueller’s decision to work more in the field. But if
Mueller was told this, the advice is not contained in the consultants’ written report which does
not contain such a recommendation. That report stands as strong evidence—preexisting any
union activity—of a legitimate motive for significant changes in employment practices by
Mueller. That Mueller, a master plumber himself, decided to cut costs by increasing his work in
the field, even if the consultants did, as he testified, suggest otherwise, falls short, in my view, of
proving that the announcement of the decision implied a link to union activity. The General
Counsel cites Shaw, Inc., 350 NLRB No. 37 (2007), but in that case the threat to reduce the
work force and give employees less hours if the employees unionized was an explicit threat.
That such a threat is unlawful is not in doubt. But I find that in this case the threat was not
shown to have been made.
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Having said that, Mueller’s statement drew an express link between his lingering anger
over the employees’ decision to unionize and his alteration of the timecards. As reflected by his
comments and reference to his religious faith, Mueller believed it was wrong that he had
changed the timecards without talking to LaMont about it, and he was worried about having
done it, and the repercussions that could result. Regardless of his true motivations for altering
the timecards, Mueller’s attempt to explain his actions by explicit reference to the “bitter taste”
left from the union campaign would reasonably tend to interfere with the exercise of protected
activity. It is settled, of course, that in determining the coerciveness of remarks, the Board
applies an objective standard and evaluates whether the remarks reasonably tend to interfere
with the free exercise of employee rights. The Board does not consider either the motivation
behind the remarks or their actual effect. Miller Electric Pump & Plumbing, 334 NLRB 824, 825
(2001); Joy Recovery Technology Corp., 320 NLRB 356, 365 (1995), enfd. 134 F3d. 1307 (7th
Cir. 1998). See, United States Postal Service, 350 NLRB No. 43, slip op. at 5 (2007) (“Although
we are mindful of the personal animosity between McCann and Gill, McCann’s statements were
clearly and directly tied to Gill’s protected conduct, and would reasonably tend to interfere with
Gill’s exercise of his protected Section 7 rights”) (footnotes omitted). Subjective motives aside,
the objective and reasonable understanding of Mueller’s comment would be that the timecard
alterations are a consequence of the union activity. That is, obviously, a message that violates
Section 8(a)(1) of the Act.
4. June 8
(Paragraph 5(e) of the complaint)
The General Counsel alleges that the Respondent violated the Act by instructing an
employee that he was not to discuss pay issues with another employee.
The undisputed and credited evidence is that after LaMont called Doty to tell him about
the timecards Doty called Ben Franklin and requested his timecards in a conversation with
Norrgard. He told her that LaMont had said there were some questions on this and that he
wanted to check his timecards. Subsequently, on Friday June 8, Mueller stopped LaMont in the
hallway and told LaMont that Doty had called and asked for his timecards. Mueller told LaMont
“to no longer talk with Don about this issue and also he was gonna pick up Don’s truck from his
house and not to inform him or let him know about this.”
Thus, consistent with the Government’s allegation, the evidence is clear that Mueller told
LaMont not to talk further to Doty about this pay issue. This is unquestionably violative of
Section 8(a)(1) of the Act. Triana Industries, 245 NLRB 1258 (1979).
B. Alleged bargaining violations
(Paragraph 16 of the complaint)
Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer “to
refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5).
Section 8(d) of the Act defines the duty to bargain collectively as "the performance of the mutual
obligation of the employer and the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and other terms and conditions of
employment.” "Good-faith bargaining 'presupposes a desire to reach ultimate agreement, to
enter into a collective-bargaining contract.'" Public Service Co. of Oklahoma, 334 NLRB 487
(2001) (quoting NLRB v. Insurance Agents’ Union, 361 U.S. 477, 485 (1960)), enfd. 318 F.3d
1173 (10th Cir. 2003)). "In determining whether a party has violated its statutory duty to
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bargain in good faith, the Board examines the totality of the party's conduct, both at and away
from the bargaining table." Public Service Co., supra at 487 (internal citations omitted). From
the context of a party's total conduct, the Board determines whether the party is "unlawfully
endeavoring to frustrate the possibility of arriving at any agreement." Id.

The Government contends that since May 8, the Respondent has failed to bargain in
good faith as required by Section 8(a)(5) of the Act. Specifically, the Government alleges that
the Employer engaged in surface bargaining that did not satisfy its statutory duty to bargain.
I find the evidence lacking to support the complaint allegations that the Respondent
engaged in a course of surface bargaining.
The General Counsel (and the Union) accepts that the parties bargained steadily, and
lawfully, from the November 2006 recognition of the Union through April 2007. According to the
General Counsel, this changed after the Region withdrew pending complaints and dismissed
pending charges against the Respondent on April 30. After that point, bargaining stalled. The
General Counsel blames this on the Respondent, and suggests that its new, unlawful, attitude
toward bargaining was the result of it being freed up from the threat of litigation by the Region.
There is no question but that bargaining ground to a halt after the April 18 bargaining
session, but the evidence does not demonstrate that this was as result of a surface bargaining
on behalf of the Respondent.
It is true that Mueller failed to appear at the next meeting, scheduled for May 8. But
when Schaubschlager called Mueller, Mueller seemed surprised about the meeting, and told
Schaubschlager that he was waiting to hear from Pettersen, the Minnesota Contractors
Association vice-president who had been bargaining with Mueller on behalf of the Respondent.
Schaubschlager told Mueller that he thought that Pettersen was not going to bargain on behalf
of the Respondent anymore. Mueller said that they would need to reschedule, and that he had
to talk to Pettersen. Neither Pettersen, Theis, nor Seaton testified at the trial, and neither
Mueller nor Schaubschlager provided much information about these side bar meetings. From
this May 8 exchange, however, we can see that both the union and the employer were involved
in back channels that impacted the negotiations in ways that the record does not make clear. In
any event, for reasons related to the back channel, Mueller missed a scheduled meeting. At
that point, rather than scheduling a new meeting, Schaubschlager and Mueller waited for each
other. Schaubschlager testified that it was his “understanding” that Mueller would get back to
him after talking to Pettersen, but there was no clear agreed plan on how to proceed next. The
predictable result was that both parties waited for the other and blamed each other for the delay.
Nearly a month later, Mueller writes to Schaubschlager blaming Schaubschlager for not
contacting Mueller to schedule further negotiations. Based on information from the back
channel, Mueller testified that he had heard that the Union had lost interest in negotiations.
Schaubschlager responded quickly, writing Mueller June 8 to contradict the assertion in
Mueller’s letter that the delay was his fault. He suggested a meeting for June 26. Mueller did
not respond, and Schaubschlager did not show up for the meeting.25

25Mueller claimed to the Region in pretrial position statement that he attended the meeting,
but Schaubschlager did not show up, adding to his view that the Union had lost interest in
bargaining. At trial, and on brief, the Respondent’s counsel asserted that Mueller went to meet
Schaubschlager on June 26. In fact, whether through inadvertence or design, there is no
admissible evidence on this point.
Continued
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One can certainly detect a less than enthusiastic approach to bargaining by Mueller.
However, after May 8, Mueller’s lack of enthusiasm was largely acceded to by Schaubschlager.
Hearing nothing from Mueller in reply to his June 8 letter, Schaubschlager did not show up for
the June 26 meeting. Nor did he attempt to contact Mueller, or attempt to schedule a meeting,
or take any steps to put the process back on track for nearly three months, when, on
August 30 he wrote to Mueller stating that “I would like to resume our negotiations that have
been absent since May.”
At the trial, Schaubschlager attributed the delay in requesting additional bargaining to
the discharge of LaMont and Doty, and the attendant filing of charges against Ben Franklin.
This is an inadequate explanation for not making any attempt to contact or schedule a
bargaining session for the entire summer of 2007. I do not intend to suggest that the
Respondent’s lack of interest in bargaining throughout the summer of 2007 was the fault of the
Union. But an assertion that a party has engaged in an overall course of bad faith bargaining
must be assessed in the context of the bargaining demands and requests put to it by the other
party. Bargaining conduct that may be deemed dilatory in circumstances where the other party
is pressing to bargain may be passable in circumstances where the parties are content to
bargain on a more infrequent basis. Inaction in the face of inaction does not prove a course of
overall surface bargaining. The Union’s inaction leaves the Union, and the General Counsel, in
no position to complain that the Respondent was bargaining without intent to reach an
agreement.
When Schaubschlager wrote to Mueller on August 30, he sought a meeting with Mueller
for September 18. Requesting but not receiving a reply by September 14, Schaubschlager
wrote Mueller again, reiterating the request and accusing him of refusing to bargain.
Schaubschlager filed a new unfair labor practice charge against the Respondent on September
17, alleging a refusal to bargain by the Respondent.
Mueller did not show up for the September 18 meeting but called Schaubschlager that
day, professed that faxes were not a reliable way to contact him, and agreed to meet October 2.
Although delayed because of a doctor’s appointment this meeting took place on October 2. The
General Counsel points out that Mueller arrived with no notes or proposal, but by
Schaubschlager’s account they had a bargaining session that was of typical length for the
parties and they discussed the issues seriously. At this meeting, Mueller told Schaubschlager
that he had received the request for information that Schaubschlager had sent him the previous
week and that the documents were being compiled and would be sent to him.
Again, up to this point, the evidence does not support the complaint allegations of
surface bargaining or failure to bargain generally. It would have been better bargaining practice
for Mueller to make sure he attended the September 18 meeting. But after more than 2 ½
months without contact, reviving the relationship might well not be flawless. Mueller did contact
Schaubschlager, they arranged a bargaining session, the parties met. It appeared to be
productive session. Indeed, two days later the Union’s counsel provided the Respondent’s
counsel with a collective-bargaining proposal and proposal to settle the pending unfair labor
practice cases. In short, the evidence does not persuade that the Respondent was simply
“going through the motions” and bargaining without intent to reach an agreement.
_________________________
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Of course, everything changed as of October 4. On that date the Respondent’s new
counsel submitted a position statement to the Region regarding the Union’s September 17
refusal to bargain charge. In that letter counsel took the position that the Respondent would not
further negotiate until the refusal to bargain charge was “resolved.” This was reiterated, and
expanded, in an October 12 letter to the Region in which counsel declared that Mueller would
not negotiate with the Union “until the charges filed against him by the NLRB with respect to [all
of the pending cases] have been resolved.”
These declarations are straightforward, “per se” refusals to collectively bargain, and
violations of the Act without regard to the Employer’s subjective good or bad faith. As the
Supreme Court explained in the seminal case of NLRB v. Katz, 369 U.S. 736, 742–743 (1962),
Section 8(a)(5), as defined in section 8(d), "clearly . . . may be violated without a general failure
of subjective good faith; for there is no occasion to consider the issue of good faith if a party has
refused even to negotiate in fact—'to meet * * * and confer'—about any of the mandatory
subjects." (Court's emphasis and asterisks). There is nothing about filing an unfair labor
practice charge that suspends the duty to bargain. It has long been violative of the Act to refuse
to bargain until unfair labor practice charges are withdrawn.26
No doubt in furtherance of its newly announced position refusing to bargain, the
Respondent never provided the documents requested by Schaubschlager on September 26. All
of the requested information concerned bargaining unit employees and their terms and
conditions of employment, and as such was “presumptively relevant.” Postal Service, 350
NLRB No. 43, slip op. at 44 (2007). Like a flat refusal to bargain, “[t]he refusal of an employer
to provide a bargaining agent with information relevant to the Union's task of representing its
constituency is a per se violation of the Act.” The Brooklyn Union Gas Co., 220 NLRB 189, 191
(1975); The Procter & Gamble Mfg. Co., 237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th
Cir. 1979).
In considering the General Counsel’s surface bargaining claims, I must consider the
straightforward “per se” October refusal to bargain and failure to provide requested information
as part of the totality of the Respondent’s conduct. Yet these are discrete violations, and
represent a stark change in the Respondent’s bargaining conduct, but only as of October 4. It is
unproven, and implausible to rely on these violations as evidence of surface bargaining
preceding October 4.
Similarly, the Respondent’s conduct away from the table provides little to no support for
the General Counsel’s surface bargaining allegations. The various 8(a)(1) threats and
interrogations bear no obvious relationship to its bargaining conduct, and two of four of these
violations took place in the fall of 2006, before months of good faith bargaining between the
parties. It is true that the Respondent took advantage of the discharge of LaMont and Doty to
claim to the Region on July 12 that with only one remaining bargaining unit employee it had no
duty to bargain. However, this claim was never made to the Union (precisely because the

26J. Sullivan & Sons Mfg. Corp., 102 NLRB 2, 18–19 (1953) (employer violated 8(a)(5) when
it “conditioned the continuation of bargaining upon the Union 's withdrawal of the unfair labor
practice charge”). See also, Gloversville Embossing Corp., 314 NLRB 1258, 1264 (1994), citing
John Wanamaker Philadelphia, 279 NLRB 1034 (1986) (unfair labor practice to condition
execution of a collective-bargaining agreement on a party’s willingness to withdraw or settle an
unfair labor practice charge); Hilton's Environmental, Inc., 320 NLRB 437, 455–456 (1995)
(unlawful to “condition any final agreement on withdrawal [of unfair labor practice charge]
because the question of withdrawing charges is a nonmandatory subject of bargaining”).
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Union and the Company were not attempting to negotiate with each other during the summer of
2007), and the claim was abandoned and not revived when the Respondent hired additional
employees to replace LaMont and Doty beginning in late July 2007. See, Tr. at 59–60. Here,
the “away-from-the-table” conduct adds little to the evidence offered of surface bargaining
conduct “at the table.”
In sum, the contention that the Respondent engaged in surface bargaining rests on an
extremely limited premise: the lack of meetings from April 18 through October 2, which, as
discussed above, does not rise to the level of dilatory bargaining conduct evidencing bad faith
bargaining. The General Counsel’s surface bargaining case does not rely on even the
suggestion that the Respondent’s conduct at the bargaining table involved the advancing of
untenable proposals, regressive bargaining, reneging on tentative agreements, or unjustifiable
intransigence. None of this—all standard fare in surface bargaining cases that seek to prove
that a party is simply going through the motions of bargaining without a sincere intent to reach
an agreement—is part of the General Counsel’s case. Indeed, other than the Union’s October 2
offer, no bargaining proposals were introduced into evidence. Under these circumstances, I
reject the Respondent’s surface bargaining claims.
I do find, however, that the Respondent violated Section 8(a)(5) of the Act by refusing,
as of October 4, to bargain until the unfair labor practice charges pending against it were
resolved, and by failing and refusing to provide requested and relevant information to the Union.
I recognize that neither of these “per se” violations was alleged in the complaint as an
independent violation of the Act. However, the Board may find an unalleged violation "if the
issue is closely connected to the subject matter of the complaint and has been fully litigated."
Pergament United Sales, Inc., 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). In
this case both prongs of this test are met with regard to the refusal to bargain and the failure to
provide requested relevant information.
The facts of the refusal to bargain were alleged as an indicia of surface bargaining in an
amendment to the complaint offered at the outset of trial,27 and thus, the allegation is “closely
connected” to the pled 8(a)(5) case. The "determination of whether a matter has been fully
litigated rests in part on whether . . . the respondent would have altered the conduct of its case
at the hearing, had a specific allegation been made." Pergament, supra at 335. The refusal to
bargain allegation was fully litigated because the sum of the evidence is the admissions
contained in the Respondent counsel’s letters to the Region. See Pergament, supra (stating
that closely connected/fully litigated rule "has been applied with particular force where the
finding of a violation is established by the testimonial admissions of the Respondent's own
witnesses). There is no reasonable evidence that the Respondent could rely upon to counter its
own written admissions.
The refusal to provide information is closely connected to the subject matter of the

27At the commencement of trial, the General Counsel moved to amend the complaint to add
paragraph 16(h), alleging the refusal to bargain as an indicia of bad faith bargaining. The
Respondent objected on grounds of timeliness. I granted the amendment but indicated to the
Respondent that if, because of the amendment, it needed additional time to prepare it should
make the request and I would be inclined to grant it. That offer was available but not acted on
by the Respondent.
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complaint. Indeed, the issue of the information request was discussed at the parties’ October 2
bargaining session, a session which was explicitly alleged in the complaint (paragraph 16(g)) as
part of the surface bargaining allegations. The issue was “fully litigated” as well. The failure to
provide the information was not only undisputed, but the Respondent counsel’s letter (G.C. Exh.
21 at 2) makes clear that the Respondent (and counsel) were aware of the request and believed
it inconsistent with the Union’s filing of an unfair labor practice charge.
Accordingly, I find that the Respondent violated Section 8(a)(5) of the Act by its refusal
to bargain as of October 4, and by its failure to provide the information requested by the Union
in the September 26 information request.
C. Allegations regarding Doty and LaMont’s terminations
(Paragraphs 6–11 of the complaint)
The Government alleges that the terminations of Doty and LaMont violated the Act. It
offers two distinct theories in support of these claims.
First, the General Counsel contends that the Respondent terminated LaMont and Doty
for engaging in activities protected by Section 7 of the Act, namely, disputing Mueller’s pay
practices and, in furtherance of this dispute, requesting to see their timecards. Under this
theory, the General Counsel alleges that the discharges in retaliation for disputing Mueller’s pay
practices violated Section 8(a)(1) of the Act. Second, and separately, the General Counsel
alleges that Doty and LaMont were terminated in violation of Section 8(a)(3) as part of an effort
by the Respondent to diminish the number of employees in the bargaining unit to the point that it
could eliminate its bargaining obligation.
Section 8(a)(1) of the Act states that it is an unfair labor practice for an employer “to
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7
[of the Act]. 29 U.S.C. § 158(a)(1). Rights guaranteed by section 7 include the right to engage
in “concerted activities for the purpose . . . of mutual aid or protection.” 29 U.S.C. § 157. An
employee’s discharge independently violates Section 8(a)(1) of the Act where it is motivated by
employee activity protected by Section 7. “[A] respondent violates Section 8(a)(1) of the Act if,
having knowledge of an employee's concerted activity, it takes adverse employment action that
is ‘motivated by the employee's protected concerted activity.’” CGLM, Inc., 350 NLRB No. 77,
slip op. at 6 (2007) (quoting, Meyer Industries, 268 NLRB 493, 497 (1984)).
Section 8(a)(3) of the Act provides, in relevant part, that it is “an unfair labor practice for
an employer by discrimination in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor organization.” 29 U.S.C. §
158(a)(3). An employer’s discharge of employees for the purpose of thwarting its bargaining
obligation and eliminating the union violates Section 8(a)(3). As any conduct found to be a
violation of Section 8(a)(3) would also discourage employees' Section 7 rights, any violation of
Section 8(a)(3) is also a derivative violation of Section 8(a)(1). Chinese Daily News, 346 NLRB
No. 81, slip op. at 28 (2006).
The Supreme Court-approved analysis in 8(a)(1) and (3) cases turning on employer
motivation was established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation Management. Corp., 462
U.S. 393, 395 (1983) (approving Wright-Line analysis); General Motors Corp., 347 NLRB No.
67, fn. 3 (2006) (“Wright Line applies to all 8(a)(3) and 8(a)(1) allegations that turn . . . on
employer motivation”). In Wright Line the Board determined that the General Counsel carries
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the burden of persuading by a preponderance of the evidence that employee protected conduct
was a motivating factor (in whole or in part) for the employer’s adverse employment action.
Proof of such unlawful motivation can be based on direct evidence or can be inferred from
circumstantial evidence based on the record as a whole. Robert Orr/Sysco Food Services, 343
NLRB 1183, 1184 (2004), enfd mem. 179 LRRM (BNA) 2954 (6th Cir. 2006); Embassy Vacation
Resorts, 340 NLRB 846, 848 (2003). This includes proof that the employer’s reasons for the
adverse personnel action were pretextual. Rood Trucking Co., 342 NLRB 895, 897–898 (2004),
citing Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995) ("When the employer
presents a legitimate basis for its actions which the factfinder concludes is pretextual . . . . the
factfinder may not only properly infer that there is some other motive, but that the motive is one
that the employer desires to conceal—an unlawful motive . . . .") (internal quotations omitted)).
Under the Wright Line standards, the General Counsel meets his initial burden by
showing “’(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
employer’s action.’” Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999) (quoting FPC Holdings,
Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enfg. 314 NLRB 1169 (1994)).
Such a showing proves a violation of the Act subject to the following affirmative defense
available to the employer: the employer, even if it fails to meet or neutralize the General
Counsel’s showing, can avoid the finding that it violated the Act by demonstrating by a
preponderance of the evidence that the same adverse employment action would have taken
place even in the absence of the protected conduct. Williamette Industries, 341 NLRB 560, 563
(2004); Wright Line, supra. For the employer to meet its Wright Line burden, it is not sufficient
for the employer simply to produce a legitimate basis for the action in question or to show that
the legitimate reason factored into its decision. T. Steele Construction, Inc., 348 NLRB No. 79,
slip op. at 10 (2006). In the face of the General Counsel’s meeting of its initial burden, in order
for the employer to avoid a finding of violation, it must “persuade” by a preponderance of the
evidence that it would have taken the same action in the absence of protected conduct.
Carpenter Technology Corp., 346 NLRB No. 73, slip op. at 8 (2006) (“The issue is, thus, not
simply whether the employer ‘could have’ disciplined the employee, but whether it ‘would have’
done so, regardless of his union activities”); Weldun International, 321 NLRB 733 (1996) (“The
employer cannot carry this burden merely by showing that it also had a legitimate reason for the
action, but must persuade that the action would have taken place absent protected conduct by a
preponderance of the evidence") (internal quotation omitted), enfd. in relevant part, 165 F.3d 28
(6th Cir. 1998).
When evaluation of the General Counsel’s initial case, or the Respondent’s defense,
includes a finding of pretext, this “defeats any attempt by the Respondent to show that it would
have discharged the discriminate[e]s absent their union activities.” Rood Trucking Co., supra at
898; La Gloria Oil and Gas Co., 337 NLRB 1120, 1124 (2002). “This is because where ‘the
evidence establishes that the reasons given for the Respondent's action are pretextual––that is,
either false or not in fact relied upon––the Respondent fails by definition to show that it would
have taken the same action for those reasons, absent the protected conduct, and thus there is
no need to perform the second part of the Wright Line analysis.’” Rood Trucking, supra, citing,
Golden State Foods Corp., 340 NLRB 382, 385 (2003).
I would add here that the Wright Line analysis is inapplicable in Section 8(a)(1) cases
where "the very conduct for which employees are disciplined is itself protected concerted
activity." Burnup & Sims, Inc., 256 NLRB 965 (1981). Such cases, “involve[ ] discipline of an
employee for conduct that was part of the res gestae of protected activity,” and the employer’s
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motivation is not at issue. General Motors, supra at fn. 3 The issue in such cases often is
whether “the employee used language so offensive as to remove the Act’s protection.“ Id.
1. The 8(a)(1) theory
The General Counsel’s 8(a)(1) theory involves the claim that LaMont and Doty were
terminated for investigating and disputing the Respondent’s wage and pay practices,
specifically, Mueller’s practice of altering timecards submitted by employees.
In the case of Doty, the Respondent contends that he was discharged for conduct
completely unrelated to the pay dispute, i.e., his conduct at the American Legion Post. Thus, as
the employer’s motivation for the discharge is squarely at issue, Wright Line clearly applies.
With regard to LaMont, the applicable legal standard for the Section 8(a)(1) discharge
case is more complicated.
The Respondent attributes the discharge chiefly to LaMont’s conduct at Recht’s house,
conduct that the Respondent asserts is unprotected. The General Counsel contends that
LaMont’s overall activities in pursuit of the pay dispute motivated the discharge. The General
Counsel suggests that the events at Recht’s house are being used by the Respondent as a
pretext for the discharge, an assertion regarding the Employer’s motivation that makes a Wright
Line analysis directly applicable.
However, the General Counsel primarily argues on brief that, assuming that LaMont’s
conduct at Recht’s home was Mueller’s motivation for the discharge, that conduct was protected
conduct regarding the pay dispute and not conduct for which LaMont would lose the protection
of the Act. Thus, the General Counsel contends that, assuming the Respondent’s version of its
motivation, "the very conduct for which” LaMont was “disciplined is itself protected concerted
activity" (Burnup & Sims, Inc., supra) and “conduct that was part of the res gestae of protected
activity.” General Motors, supra. Under this analysis the Respondent’s motivation for the
discharge is not at issue and the outcome turns on whether LaMont’s conduct at Recht’s house
put him outside the ambit of the Act’s protection. Wright Line is inapplicable to this inquiry.
Given these alternative arguments, I will first use Wright Line to analyze the motivation
for LaMont’s discharge. If the General Counsel meets his initial burden and shows that
LaMont’s protected activity (apart from any conduct at Recht’s home) was a motivation for
LaMont’s discharge, the burden will shift to the Respondent to show that in the absence of
protected activity it would still have discharged LaMont, as it claims, for his conduct at Recht’s
house. If the Respondent’s contention is found to be a pretext, or if it is found to be a motive,
but not shown by the Respondent to have been a motive it would have acted upon in the
absence of LaMont’s other protected activity, then the Respondent has failed to meet its burden
and a violation will be found. In that case, the protected or unprotected nature of LaMont’s
conduct at Recht’s home is irrelevant.28

28New York University Medical Center, 261 NLRB 822, 824 (1982) (unnecessary to reach
question of whether activity was protected where employer failed to meet its Wright Line burden
of showing that employee would have been discharged for allegedly unprotected activity in the
absence of other protected activity that was a motivating cause of discharge), enf’t. denied on
other grounds, 702 F.2d 284 (2d Cir. 1983). See, Waste Management of Arizona, 345 NLRB
1339, 1340 (2005) (applying Wright Line to determine whether employer would have terminated
employee for his unprotected conduct in the absence of his protected activity); Mountain
Continued
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If I conclude that the General Counsel has failed to meet his initial burden, or if he does
but the Respondent shoulders its burden of demonstrating that it would have terminated LaMont
for his actions at Recht’s house, even in the absence of protected activities, then the Wright
Line analysis, of course, will come out in favor of the Respondent. At that point, it will be
necessary to examine the nature of LaMont’s conduct at Recht’s house. If LaMont’s actions at
Recht’s house are, in fact, the sole motive for the discharge, or (under Wright Line’s burden
shifting analysis) a motive that would have been acted upon by the Respondent even in the
absence of protected activity, then the legitimacy of the discharge turns on whether LaMont’s
conduct at Recht’s was protected or unprotected. If unprotected, then the Act was not offended
by the discharge. If, however, that conduct was within the ambit of the Act’s protection, then we
have a case where "the very conduct for which employees are disciplined is itself protected
concerted activity" (Burnup & Sims, Inc., 256 NLRB 965 (1981)) and the discharge was violative
of the Act.
a. Application of the Wright Line analysis
The first element under Wright Line that must be established by the General Counsel is
that employees were engaged in protected activity. As referenced, supra, Section 7 of the Act
provides that activities, to be protected by Section 7, must be “concerted” and undertaken for
the purpose of collective bargaining or other “mutual aid or protection.” 29 U.S.C. § 157.
The "mutual aid or protection" clause of Section 7 guarantees employees “the right to act
together to better their working conditions.” NLRB v. Washington Aluminum Co., 370 U.S. 9, 14
(1962). "The conditions of employment which employees may seek to improve are sufficiently
well identified to include wages, benefits, working hours, the physical environment, dress codes,
assignments, responsibilities and the like." New River Industries v. NLRB, 945 F.2d 1290, 1294
(4th Cir. 1991). The purpose of LaMont and Doty’s efforts to uncover Mueller’s wage and
payroll practices falls squarely within the scope of Section 7. LaMont discovered the issue but
soon enlisted Doty (and attempted to enlist Vandewetering) to have them seek their pay records
as well. Employee conversations about a wage and payment dispute are at the core of activity
covered by Section 7’s “mutual aid and protection” clause. Scientific-Atlanta, Inc., 278 NLRB
622, 624 (1986) (“The Board has held that Section 7 ‘encompasses the right of employees to
ascertain what wage rates are paid by their employer, as wages are a vital term and condition of
employment’”) (quoting, Triana Industries, Inc., 245 NLRB 1258 (1979)). When LaMont solicited
the other employees the inquiry was an effort to uncover Mueller’s wage and pay practices for
the benefit of all employees. LaMont was not asking Doty and Vandewetering to seek their
timecards to advance his own personal interest but to benefit all of them. Indeed, when he
urged Doty and Vandewetering to check their timecards, LaMont had already determined that
Mueller’s deduction of drive time was the chief source of the discrepancy, a view Mueller
shared, and an issue that would have affected all employees. It should also not be forgotten
that, at Doty’s suggestion, LaMont called the Union to report his concerns over the pay issue.
This, at a time that the Union and the Employer were under a statutory duty to collectively
bargains precisely such matters. For this reason alone, employee activity related to the pay
dispute and reported to the Union as a dispute with the employer, meets the statutory definition
_________________________
Shadows Golf Resort, 330 NLRB 1238 (2000) (remanding case for the judge to determine under
Wright Line whether a disloyal flyer would have caused employer to discharge employee in the
absence of other protected activity).
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of activity “undertaken for the purpose of collective bargaining” and, therefore, is an explicitly
recognized and essential form of “mutual aid and protection.”
The activity over the pay dispute was also carried out in “concerted” fashion. An
employee acting solely on his own behalf is not engaged in concerted activity. However, “[i]t is
well settled that the activity of a single employee in enlisting the support of his fellow employees
for their mutual aid and protection is as much concerted activity as is ordinary group activity.
Such individual action is concerted as long as it is engaged in with the object of initiating or
inducing . . . group action." Phillips Petroleum Company and Paper, 339 NLRB 916, 918
(2003) (internal quotations and footnotes omitted); SEIU, Local 1, 344 NLRB 1104, 1105–1106
(2005) (“attempt to initiate or induce group action among his coworkers to confront . . . their
employer[ ] about their shared concerns over the changes clearly constituted concerted activity
protected by Section 7 of the Act”). See generally, Meyers Industries, Inc., 268 NLRB 493
(1984) and Meyers Industries Inc. (Meyers II), 281 NLRB 882 (1986). However, the object of
inducing group action need not be express. Plumbers, Local 412, 328 NLRB 1079, 1081
(1999).
In this case, LaMont’s concern about the Respondent’s calculation of pay and alteration
of timecards may have begun as an individual concern, but only 3 days after Mueller confirmed
LaMont’s suspicions, LaMont contacted both of the other bargaining unit employees to have
them initiate action regarding the Respondent’s pay policies. LaMont explained the situation to
Doty and exhorted him, successfully, to request his own pay records to “see if it happened to
him as well.” Doty actually referenced his discussions with LaMont when he called the
Respondent’s offices to request his pay records. LaMont also left a message for Vandewetering
suggesting the same course of action. Doty and LaMont discussed these issues and Doty
suggested that LaMont apprise the Union of the situation. LaMont did so. Doty also suggested
that the police be contacted. LaMont took action on that front at the time he was discharged. It
is telling that Mueller recognized and tried to stop the concerted nature of the employees’
activities: the day after Doty contacted Ben Franklin to request his pay records, Mueller directed
LaMont “to no longer talk with Don about this issue.” It is precisely the concerted aspect of the
activity that Mueller sought to end.
This coordination between employees, the mutual offering and taking of suggestions for
action, the carrying out of their jointly conceived suggestions for action, not to mention the
contacting of their union representative, goes well beyond the Board’s minimum standards for
establishing concerted activity. See, Meyers II, supra at 887, quoting and approving Root-
Carlin, Inc., 92 NLRB 1313, 1314 (1951) (‘“Manifestly, the guarantees of Section 7 of the Act
extend to concerted activity which in its inception involves only a speaker and a listener, for
such activity is an indispensable preliminary step to employee self-organization’”); Palco, 325
NLRB 305 (1998) (once employee informed coworker about refusal to drive truck he perceived
as unsafe and coworker protested reassignment of truck to him, refusal was concerted activity),
enforcement denied, 163 F.3d 662 (1st Cir. 1998).29 Indeed, the discussion of salaries has

29Notably, the First Circuit’s refusal to enforce the Board’s order in Palko was based on the
absence in Palko of circumstances that are present in the instant case. Thus, the Court pointed
out that in complaining about the safety of his truck, the discharged employee in Palko did not
urge another employee to complain to management, nor were the complaints a “manifestation
of group activity.” 163 F.3d at 666. Indeed, the Court pointed out that the action desired by the
discharged employee—giving a truck he considered unsafe to another employee—would have
been to the detriment of the other employee. Id. By contrast, in the instant case, in his
discussion with Doty, LaMont explained the problem and urged Doty to contact management to
Continued
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been termed by the Board “an inherently concerted activity clearly protected by Section 7 of the
Act.” Automatic Screw Prods., Co., 306 NLRB 1072 (1992), enfd w/o op. 977 F.2d 582 (6th Cir.
1992).
Having established that Doty and LaMont were engaging in protected activity regarding
the pay dispute, the second prong of the General Counsel’s initial burden is easily established:
at least by Friday June 8, the Respondent was aware of their protected activity, and in
particular, its concerted nature. As discussed, supra, it was on this day that Mueller unlawfully
ordered LaMont “to no longer talk with Don about this issue.” Obviously, as of June 8, Mueller
knew that LaMont and Doty were engaged in a concerted effort to agitate over the pay records
issue. He ordered them to stop.
Finally, in order to satisfy his initial burden, the General Counsel must show that the
employees’ protected activity was a substantial or motivating reason for its discharge of the
employees. With regard to this aspect of the General Counsel’s case, and any affirmative
defense advanced by the Employer, Doty and Lamont’s discharges are best considered
separately, as the evidence, in part, is different for each.
i. Doty’s termination
The Respondent’s position, to which Mueller testified, is that Doty was discharged
because of the incident at the American Legion Post, which Mueller learned about no later than
mid-April. According to the Respondent, the pay issue had nothing to do with Doty’s
termination.
The evidence suggests otherwise. For one thing, the role of the pay dispute in Doty’s
discharge can be inferred based on the Respondent’s unfair labor practice, discussed supra, in
which Mueller pointedly and unlawfully ordered LaMont not to discuss this very protected
activity—the pay dispute—with Doty. This immediate, unlawful reaction to the knowledge that
the employees were acting in concert on this issue, by itself, provides evidence of animus
towards the employees’ involvement in the pay dispute and therefore a basis for inferring that
the protected conduct played some role in the decision to terminate the employees.
Beyond this, however, the Respondent’s explanation for Doty’s discharge suggests a
pretext. It is easy to accept that the incident at the American Legion would have upset Mueller,
who had taken steps to make sure that employees knew they were not to solicit business for
themselves while working for Ben Franklin. Doty even explained to Fiedler why the Post should
prefer him over Ben Franklin for the upcoming remodeling. If Mueller had, upon learning of this
incident, called Doty and fired him, the General Counsel would be hard pressed to attribute it to
Doty’s protected activity. But Mueller did not fire Doty when he learned of this incident. He did
not discipline Doty. He did not even mention it to him. He took no action at all. Of course,
Mueller says he “just never called him back to work” because of the incident. According to
Mueller, “[i]n my mind he was terminated, officially on paper he wasn’t terminated.” But I think
that point is limited in its exculpatory power.
It feels like an after-the-fact explanation. There is no objective or contemporaneous
_________________________
seek out his time records. At the same time, Doty encouraged LaMont to contact the Union.
Unlike the situation described by the Court in Palko, Doty and LaMont’s interests were aligned
and they were each, after consultation with each other, working to ferret out the Respondent’s
pay practices.
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support for it. The fact is that Doty remained on the payroll and in possession of Ben Franklin
property, including a truck, and was expected to be available to take calls for Ben Franklin. That
remained the case, throughout this entire period from April to the end of June. Whether or not
Mueller chose to call upon Doty during this period, it is clear, objectively, that Mueller was not
terminated. I cannot accept the Respondent’s contention that, despite appearances (the truck
in front of the house, the employee on call), we should accept his subsequent declaration that
“in my mind” Doty was terminated.30 With this testimony Mueller began a series of evasions in
his discussion of his actions toward Doty.
The fact is, Mueller took action against Doty only after Doty called into the office on June
8, 2007 and requested copies of his timecards, identifying to Norrgard that he was calling based
on concerns raised by LaMont. This sparked action on Mueller’s part, almost immediately. The
very next day, Mueller unlawfully warned LaMont not to talk to Doty about the timecards and
then left a message for Doty saying that he was coming to pick up the Ben Franklin truck from
his house. The day after that, Mueller picked up the truck and other Ben Franklin property,
which meant that, for the first time, Doty was without the implements to perform work for Ben
Franklin. This was the first change in his status since his diminishment of hours which had been
the status quo for nearly six months, and a full two months since Mueller learned of the incident
at the American Legion Post. The nearly immediate reaction by Mueller after learning of Doty’s
involvement in the pay dispute, particularly in light of his inaction when he learned of Doty’s
involvement in the American Legion incident, strongly suggests that the pay dispute was the
real and unlawful motive for the actions taken against Doty. This “timing” supports the General
Counsel’s prima facie case. The Board has long recognized that "the timing of [a] Respondent’s
decision and its implementation strongly support an inference of unlawful motive.” Electronic
Data Systems, 305 NLRB 219, 220 (1991), enfd. in relevant part, 985 F.2d. 801 (5th Cir. 1993).
North Carolina Prisoner Legal Services, 351 NLRB No. 30, slip op. at 5 (2007), citing, Davey
Roofing, Inc., 341 NLRB 222, 223 (2004) (timing of employer’s action in relation to protected
activity provides reliable evidence of unlawful motivation) and La Gloria Oil & Gas, 337 NLRB
1120, 1124 (2002), enfd. 71 Fed. Appx. 441 (5th Cir. 2003) (decision occurred “closely on the
heels” of protected activity, illustrating employer’s “desire to cut any budding [protected]
activity”).
I reject Mueller’s testimony at trial that he was motivated to pick up the truck because
Doty said grass was growing around the truck and he needed to mow the grass. Mueller first
testified that Doty told him this: “Yes, he indicated to me that grass was growing around his
truck, and so I said I would go out and pick it up so he could mow.” In fact, Mueller quickly
conceded that he had not talked to Doty at all. When Doty called Norrgard to request the
timecards he had mentioned that grass was growing around his truck, an obvious reference to
his lack of assignments and desire for more work. Norrgard passed this message, and Doty’s
request for his timecards, along to Mueller, who promptly repossessed Doty’s Ben Franklin
truck, cell phone, and uniform. Mueller’s contention that he did this so Doty could mow his lawn
is fatuous, and reveals Mueller as something of a wisenheimer.
Mueller followed up the repossession of Ben Franklin property by writing to Doty, four
days later, and telling him that “I assume that you are resigning from your position with Ben
Franklin Plumbing.” The letter also contained forms and information regarding Doty’s right to

30In terms of backpay owed to Doty, his lack of assignments may be relevant. But that is a
matter to be considered in a compliance proceeding, along with the fact that new employees
were hired after Doty’s termination.
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choose COBRA coverage to continue his health insurance. Whether Mueller was simply
averse to confrontation, or whether he feared that a termination letter might provoke trouble,
perhaps as to the timecard issue, I am not sure. But the suggestion that Doty had resigned
was, like his suggestion that he went to pick up the truck so Doty could mow the grass,
disingenuous, or at best, wishful thinking on Mueller’s part. Moreover, the explanation offered in
the letter, and again at trial, for Mueller conclusion that Doty had resigned is itself disingenuous.
Doty’s decision to keep his Ben Franklin uniform and cell phone in the truck just does not
suggest resignation. It is not a reasonable conclusion to draw. That was a made-up excuse to
justify terminating Doty, but call it a resignation, and Mueller stuck to it at trial. I do not accept it.
Approximately one week later, Doty called Mueller and said that, contrary to Mueller’s letter, he
was not resigning. Continuing his evasive, nonconfrontational posture, Mueller acknowledged
that he probably responded by saying, “Ok.” However, on approximately June 26 or 27, Mueller
finally called Doty and told him that his services were no longer needed.
No additional explanation was provided to Doty about the grounds for the termination,
and when asked why, Mueller could not give a reason for this. I believe that Mueller did not
want to attribute the termination to the timecard issue, but I find that this was the “last straw” that
prompted the discharge, not Doty’s solicitation of work at the American Legion Post, which
Mueller learned about over two months earlier. It is the Respondent’s burden to prove that it
would have discharged Doty even in the absence of Doty’s protected activity. The evidence,
and the timing in particular, points the other way. Even if the Respondent could have
legitimately terminated Doty for the Legion Post incident, the Respondent has failed to show
that the incident was a basis for Doty’s discharge, much less that it would have terminated Doty
in the absence of his heeding of LaMont’s exhortation to call Ben Franklin and request his
timecards. Indeed, given that the incident was ignored for months until Doty called seeking his
timecards, and was not even mentioned to Doty in connection with his termination at any time,
the explanation has characteristics of a pretext seized upon after the fact to justify the
termination at trial. I find that Mueller decided to terminate Doty when he learned that Doty had
called in and requested his timecards. I conclude that with the repossession of the truck on
June 9, Doty was effectively terminated. The suggestion to Doty that he had resigned and the
final call to Doty telling him that he was no longer needed were simply the wrapping up of the
termination process. I conclude that the Respondent’s termination of Doty was motivated by
Doty’s protected conduct and, accordingly, a violation of Section 8(a)(1) of the Act.
ii. LaMont’s termination
Before terminating Doty, Mueller terminated LaMont. LaMont had worked steadily for
Mueller since his recall in March, and unlike Doty, his termination did not lack for confrontation.
As with Doty, the issue of the pay dispute played a central role.
The Respondent asserts that its discharge of LaMont was the product of building
dissatisfaction with LaMont. But the precipitating event, according to the Respondent, was the
incident at Terry Recht’s house, reported to Mueller by Recht the next morning. Mueller testified
that he terminated LaMont [f]or backstabbing me and disparaging the Company. . . . Well, when
he called me a crook, a cheat, and that I was stealing the timecards from and all these things
were going on. And when he spread it over to one of my friends at BNI [the Business
Networking group], it was, for me, like the last straw.” In his letter discharging LaMont, Mueller
states that LaMont told Recht that
Mike Mueller was cheating him by taking time off on Steve’s timecards, and that
Mike was crooked. Steve then took out copies of his timecards and actually
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showed them to the client, an attempt to make his case.
According to the termination letter, this was the basis for the LaMont’s termination. On brief
(Resp. Br. at 21), the Respondent states that “Mueller terminated LaMont for a culmination of
reasons, none of which related to the ongoing timecard dispute with LaMont or LaMont’s other
union activities or sympathies.”
The evidence suggests otherwise. It is clear that the employees’ consternation over the
altered timecards concerned and alarmed Mueller. It was Mueller’s defensiveness over this
issue that caused him, when first confronted about the pay dispute by LaMont on June 5, to tell
him that “I know I shouldn’t have been doing this.” It was Doty’s call to the office to check on his
timecards that resulted in Mueller’s unlawful directive to LaMont on June 8 “to no longer talk
with Don about this issue,” and that resulted in Mueller’s decision to discharge Doty. On June
12, the confrontation resulting in LaMont’s firing began with Mueller’s demand, and LaMont’s
refusal, that LaMont certify the accuracy of each timecard, including the ones that Mueller had
altered. When LaMont refused to do this and attempted to return to his service calls, Mueller
ordered LaMont to do so. He said, “I’m ordering you and I’m demanding you to go in the office
and initial-off on these stating that these timecards are right. I’m not paying you another dime
until you do this.” LaMont again refused, by indicating that it “sounds to me if you’re not gonna
pay me another dime, you’re firing me.” Mueller said, “I’m not firing you, I’m laying you off then.”
Only then, as LaMont prepared to leave and accept the layoff, did Mueller raise the incident at
Recht’s. Mueller pressed LaMont to admit what had happened, repeating that LaMont knew he
did something stupid yesterday. LaMont admitted, “Yeah, I showed her the timecards.” Mueller
then said, “All right, you’re fired. Get out of my office. Get out of here now.”
The Respondent contends that after learning of the Recht incident, Mueller decided to
terminate LaMont, and called him into the office to order him to “sign off” on the timecards so
that he could “resolve” the timecard issue before firing him for disparagement. The
Respondent’s somewhat unseemly claim is that Mueller was using his leverage as employer to
require LaMont to verify timecards that he did not agree were accurate, but planned to fire him
immediately afterwards because of his conduct at Recht’s home.
I do not accept the General Counsel’s position that the incident at Recht’s house was
wholly pretextual. It angered Mueller. According to LaMont, he had talked to Mueller the
morning of his discharge after his first call of the day and Mueller had been pleased with a sale
LaMont had made. There was no inkling of discord. It was only later in the morning, no doubt
after Mueller heard from Recht, that LaMont received a call to come back to the office. It was
then that Mueller demanded that LaMont initial the timecards, and the ensuing dispute resulted
in LaMont’s termination. Thus, the Recht incident appears to have played a role in the timing of
the meeting with LaMont and thus in the timing of his discharge.
But if the Recht incident was not pretextual it was not the only motive for the discharge.
In other words, LaMont’s discharge was a dual motive discharge as Wright Line explained the
term. That being so, I do not believe the Respondent has proven that it would have fired
LaMont in the absence of his other protected and concerted activity surrounding the pay
dispute. To begin with, as noted, Doty was fired for his involvement in the pay dispute—and
nothing else—and that process, beginning with the repossession of the truck was already
underway when LaMont was terminated. LaMont’s involvement in the pay dispute was far more
central, and far more challenging to the Respondent than Doty’s. It is, in fact, unlikely that Doty
would be terminated for involving himself in the pay dispute, but LaMont would get a pass on
that issue. Moreover, the final confrontation with LaMont does not have an inkling of the
predetermination to terminate LaMont that the Respondent claims. To the contrary, the
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termination sounds like an impulsive reaction to the confrontation that developed when LaMont
refused to approve the altered timecards. At that point they argued and Mueller told LaMont he
was “laid off” and then changed it to “you’re fired” after LaMont admitted to showing Recht the
timecards, something Mueller already knew about. Under the Respondent’s version, the “laid
off” comment was a ruse, designed to force LaMont to vouch for the accuracy of the altered
timecards. Frankly, I do not judge Mueller to be that calculating or cold. But I think the
Respondent feels that the “disparagement” issue is a stronger grounds for discharge than the
pay dispute. However, the conversation highlights the importance of the pay dispute to the
discharge. Undisputed is that Mueller was willing to tell LaMont, either as a plan or in a fit of
anger, that he was being “laid off” for refusing to agree, essentially, to drop the pay dispute and
certify that the timecards were correct. That, by itself, is a remarkable unfair labor practice,
escaping notice only because a suspension converted to a discharge in the same conversation
is overshadowed. But it demonstrates the force of the Respondent’s animus towards LaMont’s
involvement in and creation of the pay dispute, and it demonstrates the Respondent’s
willingness to act on that animus. It is a tall order for the Respondent to separate out the heated
conversation, threats, and animus regarding the pay dispute on display in Mueller’s final
discussion with LaMont, from the termination of LaMont occurring in the same conversation.
That is, under Wright Line, the Respondent’s burden. The Respondent has failed to
demonstrate that absent LaMont’s protected and concerted activity around the pay dispute it
would have terminated LaMont.
b. Was LaMont’s conduct at Recht’s home unprotected?
Utilizing a Wright Line analysis, I have found that the Respondent has failed to
persuade by a preponderance of the evidence that it would have terminated LaMont in the
absence of the pay dispute. That makes unnecessary the need to determine whether LaMont’s
conduct at Recht’s home constituted disparaging and disloyal unprotected activity for which he
could have been (and, according to the Respondent, was) discharged. However, given the
centrality of the contention to the Respondent’s case, I will consider the issue.
"Employees have a statutorily protected right to solicit sympathy, if not support, from the
general public, customers, supervisors, or members of other labor organizations." NCR Corp.,
313 NLRB 574, 576 (1993). “[T]he Board has found employee communications to third parties
seeking assistance in an ongoing labor dispute to be protected where the communications
emphasized and focused upon issues cognate to the ongoing labor dispute.” Allied Aviation
Service Co., 248 NLRB 229, 230–231 (1980), enfd. w/o op. 636 F.2d 1210 (3d Cir. 1980); Five
Star Transportation, 349 NLRB No. 8, slip op. at 4 (2007) (“employees do not lose their Section
7 protection simply because they seek ‘to improve terms and conditions of employment or
otherwise improve their lot as employees through channels outside the immediate employee-
employer relationship’”) (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)).
In considering LaMont’s conduct, it must first be acknowledged that his comments to
Recht were very much a part of and about the pay dispute. His repeated comment—in
response to Recht’s inquiry about how he liked working for Mueller—that it would be nice to
work for someone who was “honest” and had “integrity” was directed toward his concern about
Mueller’s actions in the pay dispute. Indeed, as the Respondent put it, in “an attempt to make
his case” LaMont “took out copies of his timecards and actually showed them to [Recht].” Thus
LaMont’s comments were not attacks on Mueller or Ben Franklin unrelated to an ongoing labor
dispute. They were about the labor dispute. As discussed, supra, that goes a long way to bring
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the dispute within the ambit of protected activity.31
However, not all communications to third parties are considered protected. For instance,
"employee conduct involving a disparagement of an employer's product, rather than publicizing
a labor dispute, is not protected." NLRB v. Local 1229 (Jefferson Standard), 346 U.S. 464
(1953). Even when the communication to a third party is related to an ongoing labor dispute,
the Board evaluates whether the communication is “so disloyal, reckless, or maliciously untrue
as to lose the Act’s protection.” Endicott Interconnect Technologies, 345 NLRB 448, 450
(2005), enf’t. denied, 453 F.3d 532 (D.C. Cir. 2006). As the Board recently explained, “[i]n
determining whether employee conduct falls outside the realm of conduct protected by Section
7, we consider whether ‘the attitude of the employees is flagrantly disloyal, wholly
incommensurate with any grievances which they might have, and manifested by public
disparagement of the employer’s product or undermining of its reputation . . .” Five Star
Transportation, supra at slip op. at 4 (quoting Vandeer-Root Co., 237 NLRB 1175, 1177 (1978)).
Here, LaMont’s discussion of his timecards and the pay dispute falls short of comments
that could be considered flagrantly disloyal. The only part of LaMont’s comments that warrant
discussion are his repeated remark that it would be nice to work for someone who was honest
and had integrity. With regard to these comments, the context should not be forgotten. LaMont
was sincerely moved by the generosity and hospitality of Recht who cooked her own employee
breakfast and asked LaMont to join them. They talked, and she asked him how he liked
working for Mueller. LaMont told her, but as Recht testified, “He didn’t respond about Mike. He
just said that he would like to work for someone that was honest and something about integrity.”
LaMont repeated this several times.
Contrary to the Respondent’s characterization of the incident, I have found that LaMont
did not tell Recht that Mueller was a “crook” or “crooked” or had “cheated” him. I have found
that Recht did not tell Mueller that LaMont said that. There is no doubt that LaMont’s answer
reflected poorly on Mueller, and was intended to, and yet it strikes me as the opposite of
inflammatory. If the answer was not what Recht hoped, it must be said that if it is permissible to
answer without losing the protection of the Act, LaMont did so in a non-inflammatory way.

31Under Board precedent, it is clear that the pay dispute qualifies as a “labor dispute.” As
the Board explained in Endicott Interconnect Technologies, 345 NLRB at 450:
in applying the Jefferson Standard doctrine, the Board relies on the definition of a
"labor dispute" in Section 2(9) of the Act. That section states:
“The term ‘labor dispute’ includes any controversy concerning terms,
tenure or conditions of employment, or concerning the association or
representation of persons in negotiating, fixing, maintaining, changing,
or seeking to arrange terms or conditions of employment, regardless of
whether the disputants stand in the proximate relation of employer and
employee.”
In short, this definition comprehends disputes concerning either employment
conditions or representation for collective bargaining. The presence of an
organizing union or a collective-bargaining relationship is not required. There
need not be an ongoing strike or picketing. All that is required is a controversy
that relates to terms or conditions of employment. . . .
[T]he presence of a union is not required to establish that a labor dispute
exists. The most casual reader of the article would recognize that the layoff
involved a controversy between management and employees concerning
employment conditions. Thus, there was an identifiable labor dispute.
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Indeed, in context it was—in part—a compliment to Recht, who obviously impressed LaMont, as
well as a negative comment on Mueller. It was intended to convey the problem with Mueller’s
conduct, in LaMont’s view, and it was linked forthrightly and exclusively to the dispute over
terms and conditions of employment, and Mueller’s dealings with the pay issue. By all evidence
there were no negative references to Mueller other than in reference to the pay dispute. And
there was no disparagement of any kind of Ben Franklin’s products, services, abilities or
anything else unrelated to the labor dispute.
Moreover, the limited, almost private nature of the communication is important. The
Board has recognized that in assessing whether arguably disloyal or disparaging conduct loses
the protection of the Act, the extent of the publicity and extent of the public nature of the
communication is significant. Unlike, for example, a mass mailing, LaMont’s comments were
made in a one-on-one conversation in Recht’s home, over (and after) breakfast. This militates
strongly in favor of finding that LaMont did not lose the protection of the Act. See, Mountain
Shadows Golf Resort, 338 NLRB 581, 583 (2002) (pointing out that public nature of flyer,
among other factors, increased justification for discipline of employee compared to private
document criticizing employer that employee had previously authored).
The Respondent also takes issue with the purpose of the communication, contending
(Resp. Br. At 22) that “LaMont was not communicating said information to Recht for the
purpose of obtaining Recht’s assistance with respect to an ongoing labor dispute.” There is no
precedent in law or logic for the proposition that the employees’ statutorily protected right to
communicate with third parties is so circumscribed. Whether it is merely “to solicit sympathy”
NCR Corp., 313 NLRB at 576) or tangible support, the statutory right to communicate with third
parties in support of legitimate goals is protected by the Act. There is no requirement that the
communication be part of a formal or premeditated strategy to obtain assistance from third
parties. In this case, it appears that LaMont told Recht about the problem at work because
Recht asked him how he liked working for Mueller. At a minimum, Lamont was trying to “solicit
sympathy” from Recht. If the communication is not otherwise sufficiently egregious to lose the
protection of the Act, it is not for the Board to vet whether the attempt to “solicit sympathy” is
appropriately thought through, or in the employee’s best interest. In this case, obviously, it
turned out to be a mistake on Lamont’s part to talk to Recht about the problems at work. It did
not help resolve the pay dispute. That must be beside the point. It is the discussion itself, the
conveying of information to the third party as a means of informing others about the dispute that
is protected. Although it obviously did not work out this way, had Recht, after hearing LaMont,
urged Mueller to resolve the dispute, the decision by LaMont to educate Recht about the dispute
would look very different. The Act protects the decision to communicate about the dispute
without regard to whether the listener sides with the employee or the employer.
Finally, I add that LaMont’s right to discuss labor issues with customers during working
time could surely be limited by Ben Franklin’s adoption of a nondiscriminatory rule forbidding
nonwork related discussions with customers. One can imagine an employer not wanting its
plumbers discussing religion, politics, labor issues, or any other nonwork issue beyond minimal
courtesies while on the job. And one can imagine a rule prohibiting plumbers from sitting down
to breakfast with a customer while on the job. On the other hand, an employer might well
determine that such rules would stifle interactions between the plumber and customer that might
be beneficial to the customer-employer relationship. After all, the customer and the plumber
may, in some instances, spend several hours together. In any event, there is no evidence, and
the Respondent does not claim, that any such rules exist. Both in Mueller’s reaction, and in the
Respondent’s litigation position, there is no hint that LaMont’s use of worktime at Recht’s—for
breakfast or for discussions—was a cause for his termination. The Respondent took issue with
LaMont’s particular comments, not his taking time to talk with Recht. Thus, the fact that LaMont
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was “on the job” when he talked to Recht is not at issue. See, Panchito’s, 228 NLRB 136
(1977) (overruling ALJ’s conclusion that discussion of union during working time in presence of
customers was unprotected as there is no evidence that employer had a no-solicitation rule in
place); enfd. 581 F.2d 204, 207 n.3 (9th Cir. 1978) (“An employee may discuss unionizing on
working time, absent a lawful employer rule against it”). See, Orval Kent Food Co., 278 NLRB
402, 405 (1986) (An employer may lawfully forbid employees to talk about a union during
periods when they are supposed to be working, if that prohibition also extends to all other
subjects not associated or connected with their work tasks).
Although I do not believe I need to reach the issue, were it necessary, I would find that
LaMont’s conduct at Recht’s home was protected activity. Accordingly, if, as the Respondent
claims, the incident at Recht’s home was an independent cause of LaMont’s discharge, then the
discharge was violative of the Act. Burnup & Sims, Inc., 256 NLRB 965 (1981).
2. The 8(a)(3) allegations
Given my findings that LaMont and Doty’s discharges violated Section 8(a)(1), it is
unnecessary to reach the General Counsel’s contention that their discharges violated Section
8(a)(3) of the Act. Phoenix Transit System, 337 NLRB 510 fn. 3 (2002).
CONCLUSIONS OF LAW
1. The Respondent M.J. Mueller, LLC d/b/a Benjamin Franklin Plumbing is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party United Association of Plumbers and Gasfitters, Local Union No.
34 is a labor organization within the meaning of Section 2(5) of the Act.
3. The following employees of the Respondent constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time journeyman and apprentice
plumbers employed by the Respondent at or out of its North
Branch, Minnesota location; excluding all other employees, guards
and supervisors as defined by the Act.
4. Since on or about November 15, 2006, the Union has been the recognized and
exclusive representative of the foregoing unit of the Respondent’s employees.
5. On or about November 1, 2006, the Respondent violated Section 8(a)(1) of the Act
by interrogating an employee regarding his union sympathies.
6. On or about November 1, 2006, the Respondent violated Section 8(a)(1) of the Act
by threatening an employee with job loss for himself and other employees because
of the employee’s support for union representation.
7. On or about June 5, 2007, the Respondent violated Section 8(a)(1) of the Act by
implying that the Respondent was reducing hours that the employee reported on his
timecard because of the employees’ support for the union.
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8. On or about June 8, 2007, the Respondent violated Section 8(a)(1) of the Act by
directing an employee not to discuss a pay issue with another employee.
9. Beginning on or about October 4, 2007, and continuing thereafter, the Respondent
violated Section 8(a)(5) of the Act by refusing to bargain with the Charging Party
Union during the pendency of unfair labor practice charges filed against the
Respondent by the Union.
10. Beginning on or about October 4, 2007, and continuing thereafter, the Respondent
violated Section 8(a)(5) of the Act by failing and refusing to provide the Union
relevant requested information.
11. On or about June 9, 2007, the Respondent violated Section 8(a)(1) of the Act by
discharging employee Donald Doty in retaliation for his protected activity in
furtherance of a pay dispute with the Respondent.
12. On or about June 12, 2007, the Respondent violated Section 8(a)(1) of the Act by
discharging employee Steven LaMont in retaliation for his protected activity in
furtherance of a pay dispute with the Respondent.
13. The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent shall recognize and, upon request of the Union, bargain with the Union
as the exclusive collective-bargaining representative of the bargaining unit employees,
notwithstanding the pendency of any unfair labor practice charges filed against the Respondent.
The Respondent shall provide the Union with the information requested in the Union’s
September 26, 2007 letter, included in the record in this case as General Counsel’s Exhibit 11.
The Respondent, having unlawfully discharged employee Donald Doty as of June 9, 2007, and
having unlawfully discharged employee Steven LaMont as of June 12, 2007, must offer Doty
and LaMont reinstatement to the positions they occupied prior to their discharges, or to
equivalent positions, should their prior positions not exist, without prejudice to their seniority or
any other rights or privileges previously enjoyed. The Respondent shall make Doty and LaMont
whole for any loss of earnings and other benefits, computed on a quarterly basis from the date
of their discharges to the date of a proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall remove from its files,
including Doty and LaMont’s personnel files, any reference to their discharge, and shall
thereafter notify Doty and LaMont in writing that this has been done and that the discharges will
not be used against them in any way.
The Respondent shall post an appropriate informational notice, as described in the
Appendix, attached. This notice shall be posted in the Respondent’s facility or wherever the
notices to employees are regularly posted for 60 days without anything covering it up or
defacing its contents. When the notice is issued to the Respondent, it shall sign it or otherwise
notify Region 18 of the Board what action it will take with respect to this decision.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended32
ORDER
The Respondent, M.J. Mueller, LLC d/b/a Benjamin Franklin Plumbing, North Branch,
Minnesota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating any employee regarding his union sympathies.
(b) threatening any employee with job loss for himself or other employees
because of employee support for union representation.
(c) Stating or implying to any employee that the Respondent is reducing hours
that the employee reported on his timecard because of the employees’
support for the Union.
(d) Directing any employee not to discuss a pay issue with another employee.
(e) Failing and refusing to recognize and bargain with the Union as the exclusive
bargaining representative for the following bargaining unit of its employees:
All full-time and regular part-time journeyman and
apprentice plumbers employed by the Respondent
at or out of its North Branch, Minnesota location;
excluding all other employees, guards and
supervisors as defined by the Act.
(f) Failing and refusing to provide information to the Union pursuant to its
request of September 26, 2007.
(g) Discharging employees in retaliation for activity protected by the Act.
(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:

32If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(a) Recognize and, upon the Union's request, bargain with the Union as the
exclusive collective-bargaining representative of the bargaining unit employees
described above.
(b) Furnish the Union with the information it requested on September 26, 2007.
(c) Within 14 days from the date of this Order, offer Steven LaMont and Donald Doty
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.
(d) Make employees Steven LaMont and Donald Doty whole with interest, in the
manner set forth in the remedy section of this Decision and Order for any loss of
earnings or other benefits resulting from their discharge.
(e) Within 14 days from the date of this Order, remove from its files, including Steven
LaMont and Donald Doty’s personnel files, any reference to their discharge, and
within 3 days thereafter notify Steven LaMont and Donald Doty in writing that this
has been done and that the discharge will not be used against them in any way.
(f) 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.
(g) Within 14 days after service by the Region, post at its facility in North Branch,
Minnesota, copies of the attached notice marked “Appendix.”33 Copies of the
notice, on forms provided by the Regional Director for Region 18, 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 November 1, 2006.
(h) 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

33If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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violations of the Act not specifically found.
Dated, Washington, D.C. December 28, 2007.

____________________
David I. Goldman
Administrative Law Judge
JD–82–07
North Branch, MN
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 coercively question you about your union sympathies.
WE WILL NOT threaten you with job loss because of your support for union representation.
WE WILL NOT state or imply to you that we are reducing hours on your timecards because of
your support for union representation.
WE WILL NOT direct you not to discuss pay issues with each other.
WE WILL NOT fail and refuse to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the bargaining unit employees.
WE WILL NOT fail and refuse to provide the Union with requested information relevant to its
duties as your representative for purposes of collective bargaining.
WE WILL NOT discharge any of you in retaliation for your activities that are protected by the
National Labor Relations Act, including the discussion of issues related to pay.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the National Labor Relations Act.
WE WILL, recognize and, upon the Union’s request, bargain with the Union as the exclusive
collective-bargaining representative of the bargaining unit employees.
WE WILL, provide the Union with the information it requested in its letter to us of September 26,
2007.
WE WILL, within 14 days from the date of this Order, offer Steven LaMont and Donald Doty 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 Steven LaMont and Donald Doty whole for any loss of earnings and other
benefits resulting from their discharge, less any net interim earnings, plus interest.
JD–82–07
North Branch, MN
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges of Steven LaMont and Donald Doty and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done and that the discharges will not be used
against them in any way.
MJ MUELLER, LLC d/b/a
BENJAMIN FRANKLIN PLUMBING
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
330 South Second Avenue, Towle Building, Suite 790
Minneapolis, Minnesota 55401-2221
Hours: 8 a.m. to 4:30 p.m.
612-348-1757.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 612-348-1770.