EURO BUILDERS, LTD.

National Labor Relations Board - Administrative Judge Opinions

Oct 24, 2014

09-CA-106788 (N.L.R.B. Oct. 24, 2014)

JD–61–14
Englewood, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
EURO BUILDERS, LTD
and 09–CA–106788
09–CA–106805
INTERNATIONAL UNION OF 09–CA–106887
BRICKLAYERS & ALLIED CRAFTWORKERS, 09–CA–107530
OHIO-KENTUCKY ADMINISTRATIVE
DISTRICT COUNCIL, LOCAL 22 OHIO
Theresa L. Laite, Esq. and
Kevin P. Luken, Esq.
for the General Counsel.
Randy G. Martinuzzi, Esq.
for the Respondent.
Ryan K. Hymore, Esq.
for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This consolidated case was tried in
Cincinnati, Ohio, on May 5–7, 2014. On December 9, 2013, an order consolidating cases,
consolidated complaint and notice of hearing issued against Euro Builders, LTD (the
Respondent), based on charges filed by the International Union of Bricklayers & Allied
Craftworkers, Ohio-Kentucky Administrative District Council, Local 22 Ohio (the Union).1 On
February 5, 2014, the General Counsel issued an amendment to the consolidated complaint.

1 The charge in Case 9–CA–106788 was filed on June 7, 2013. The charge in Case 9–CA–106805
was filed on June 7, 2013. The charge in Case 9–CA–106887 was filed on June 7, 2013. The charge in
Case 9–CA–107530 was filed on June 18, 2013.
JD–61–14
2
The consolidated complaint alleges that the Respondent violated Section 8(a)(3) and (1)
of the National Labor Relations Act (the Act) by, on or about May 8, 2013,2 refusing to hire or
consider for hire Roger Trotter and George Gaston because of their union and concerted
activities; on or about May 31 or June 3, 2013, laying off its “Ohio crew;”3 and since on or about
June 10, 2013, refusing to recall employees Rob E. Miller and Michael L. Dawson because of 5
their union and concerted activities. The consolidated complaint also alleges that Respondent,
by its owner, John Griffiths, violated Section 8(a)(1) of the Act by: on or about May 8, 2013,
interrogating employees about their union activities, and informing employees that it was not
hiring employees because of their union activities and membership; about the week of May 27,
2013, informing an employee that it would not hire employees because of their union activities 10
and support; on or about June 4, 2013, informing an employee during a telephone conversation
that employees were laid off because of the employees’ union activities and membership; on or
about June 5, 2013, implying to an employee that employees would not be recalled to work
because of their union activities and membership, implying to an employee that it knew which
employees supported the union, informing an employee that it would not have employees on the 15
job because of their union activities and membership, and informing an employee that it was not
recalling employees because of their union activities and membership.
In addition, the amendment to the consolidated complaint alleges that Respondent
violated Section 8(a)(1) of the Act by its foreman, Daniel Nieman, an alleged supervisor and 20
agent of the Respondent, coercively informing an employee that the union and its supporters
were to blame for the June 2013 layoff.
The Respondent filed an answer and an amended answer4 in which it denied these
allegations, and denied that Nieman was a supervisor within the meaning of Section 2(11) and an 25
agent within the meaning of Section 2(13) of the Act.
30

2 All dates are in 2013 unless otherwise indicated.
3 Consolidated complaint paragraph 7(a) alleges that the “Ohio Crew” consists of: Arlie R. Jolly,
Curtis L. Dunston, Dustin M. Jackson, Francisco Coronel, Gary F. Rodgers; Jose Diaz, Joseph W. Penny,
Joshua E. Johnston, Kenton J. Beaty, Kevin McCleskey, Michael Dunston, Michael L. Dawson, Rob E.
Miller, Ronald H. McCleskey, and Segundo Pinguill. While the Respondent initially denied that these
individuals were laid off on June 3, 2013, it subsequently amended its answer at the hearing to admit that
it laid off those individuals on May 31 and/or June 3, 2013.
4 On June 11, 2014 the General Counsel filed a motion to reopen the record to amend the exhibits to
include Respondent’s answer and amended answer, which were inadvertently omitted at the hearing. This
motion was unopposed. Pursuant to Section 102.35 of the Rules and Regulations of the National Labor
Relations Board, the administrative law judge has the authority to dispose of procedural requests, motions
or similar matters, such as ordering the reopening of hearings. Due to the inadvertent omission of
Respondent’s answers, I find good cause exists to grant the General Counsel’s motion. I have therefore
reopened the record for the limited purpose of receiving Respondent’s answer and amended answer into
evidence as GC Exhibits 1(x) and 1(y), respectively.
JD–61–14
3
On the entire record,5 including my observation of the demeanor of the witnesses,6 and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT
5
I. JURISDICTION
The Respondent, with an office and place of business in Livonia, Michigan, has been
engaged in the operation of masonry contractor work in the construction industry performing
commercial construction at various locations, including a jobsite in Englewood, Ohio. In 10
conducting its operations, the Respondent annually performed services valued in excess of
$50,000 in states other than the State of Michigan. The Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act
and that the Union is a labor organization within the meaning of Section 2(5) of the Act.7
15
As mentioned above, the Respondent has denied that its foreman, Daniel Nieman, is a
supervisor and agent within the meaning of Section 2(11) and 2(13) of the Act, respectively.
II. ALLEGED UNFAIR LABOR PRACTICES20
A. Background
The Respondent is a masonry contractor headquartered in Livonia, Michigan, and owned
and operated by John Griffiths. In April 2013, it commenced operations on the construction of 25
the Northmont Early Learning Center in Englewood, Ohio (the Englewood project) for Harp
Contractors, Inc., the general contractor on the project. The Respondent’s masonry work ended
on or about January 4, 2014. Griffiths employed permanent employees in Livonia, Michigan,
and he brought five of those employees (three bricklayers and two masons) to work on the
Englewood project, which is located in the Dayton, Ohio area. Harp requested that the 30
Respondent perform the masonry work when the contractor originally hired refused to perform
the work. Griffith testified that the Englewood masonry project was a 1.7 million dollar job, and
the project was larger than his company typically handled. He also testified that when he started
the job in April 2013, the masonry project was 3–4 weeks behind schedule. The record reveals
that the Respondent planned to hire local masons and laborers to supplement its Michigan 35
employees.

5 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s Exhibit; “R. Exh.” for Respondent’s Exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for the
General Counsel’s Brief; and “Resp. Br.” for Respondent’s brief.
6 In making my findings regarding the credibility of witnesses, I considered their demeanor, the
content of the testimony, and the inherent probabilities based on the record as a whole.
7 While Respondent initially denied in its answer that the Union was a labor organization within the
meaning of Section 2(5) of the Act, it subsequently amended its answer at the hearing to admit this
allegation. In addition, at the hearing the Respondent admitted service of the charges in these cases as set
forth in paragraph 1 of the consolidated complaint.
JD–61–14
4
B. The Respondent’s Alleged Discriminatory Refusal to Hire or Consider for Hire Roger
Trotter and George Gaston in Violation of Section 8(a)(3) and (1) of the Act, and the
Alleged Related Independent Violations of Section 8(a)(1) of the Act
1. The facts5
It is undisputed that Respondent sought and hired local bricklayers/masons during the
course of the Englewood project. Shawn Herzog, the Union’s business agent, testified that when
he heard about the nonunion company’s project in the Spring of 2013, he had many members
who were out of work. He visited the worksite on or about April 2, and spoke to Griffiths about 10
supplying bricklayers for the project. Griffiths informed Herzog that he needed 10–12 local
bricklayers for the job. When Herzog told Griffiths he could provide him bricklayers and he
gave Griffiths his business card, Griffiths looked at the card and replied, “Not Union.”
Roger Trotter and George Gaston were two experienced union bricklayers/masons who 15
were not working in the spring of 2013. Both sought and received permission from the Union to
work the nonunion Englewood job. It is undisputed that Trotter and Gaston visited the jobsite
together on May 6 or 7, and spoke with Foreman Daniel Nieman, who informed them that the
Respondent was going to hire bricklayers and that they should return when the owner was there
because he did not have the authority to hire.8 Trotter testified that they were not wearing union 20
insignias on their apparel when they made their initial visit to the jobsite.
Trotter and Gaston returned to the jobsite on May 8 and met with Griffiths to apply for
work. Gaston testified that he was wearing a hardhat and tee-shirt with a union insignia on them.
Gaston and Trotter conveyed their extensive bricklaying experience to Griffiths. According to 25
Gaston, Griffiths said there would be a background check and drug screening, and Gaston
assured him those would not be a problem. Griffiths told them to follow him to fill out
applications, and they walked to Griffiths’ vehicle where Griffiths retrieved what appeared to be
employment applications.9 Gaston testified that as Griffiths began handing them the
applications, he appeared to notice the union insignias Gaston was wearing and asked, “Are you 30
a union mason?” Gaston said “yes,” and Trotter responded that he was also a union mason, and
that he would like to organize Griffiths’ company.10 According to Gaston, Griffiths stated that he
was not hiring union masons. Griffiths went on to state that he had trouble up in Toledo with the
union and he was not going to have such trouble at the Englewood site. Gaston testified that
Griffiths then put the applications back into his vehicle and he and Trotter left the jobsite. 35
Trotter, who has worked in the masonry industry since 1979 and has been a union
member for 29 years, presented evidence consistent with that of Gaston. Trotter testified that he
was wearing a ball cap with the union insignia on it, and Gaston was wearing a hardhat with a
union sticker on it. Trotter also testified that when Griffiths started giving them the applications40
for hire, he appeared to notice the union insignias and asked them if they were union bricklayers.
They both replied that they were union bricklayers, and he said “I’d like to get on out here and

8 Daniel Nieman did not testify in this proceeding.
9 Gaston testified that he believed the documents were applications and that the documents contained
W-2 tax information.
10 Tr. 132–133.
JD–61–14
5
organize this company.”11 Trotter testified that Griffiths replied “that shit’s not happening here.”
Trotter testified that Griffiths then stated, “They tried that up in Toledo,” and “I’m not hiring
union bricklayers.” Trotter and Gaston left the jobsite and were never hired by the Respondent.
Both Trotter and Gaston testified that they had their tools with them and that they were 5
ready, willing, and able to commence working immediately for the Respondent if they would
have been hired. In addition, the undisputed record shows that Respondent hired bricklayers
after Trotter and Gaston attempted to apply for work.12
With regard to Trotter’s and Gaston’s assertions, Griffiths offered a general denial, 10
testifying that he never told anyone they would not be hired if they were union,13 and simply
answered “no” to his counsel’s question as to whether he recalled what Trotter and Gaston
described at the trial.14 Notwithstanding that denial, Griffiths did present his version of that
encounter with Trotter and Gaston when he testified that “two guys” came to the jobsite and
asked if he was hiring.15 Griffiths responded “not at the moment, but fill this form in.” 15
According to Griffiths, they asked “are you union or what?” Griffiths testified that he said “No.
I’m open shop. I got no problem.” According to Griffiths, one of the individuals “just went
back and forth” and “just wouldn’t shut up,” and said “I’m going to unionize you.” Griffiths
testified that he told them “I’ve been through it before in Toledo, and it didn’t avail.” He
testified that he also told them “so, I mean, good luck” and “[i]f you want to work, you can 20
work.”
2. The credibility determinations
Since Griffiths’ version of the event differs from that presented by Trotter and Gaston, as 25
the finder of fact, I must determine the credibility of these witnesses. Credibility determinations
may rely on a variety of factors, including the context of the witness’ testimony, the witness’
demeanor, the weight of the evidence, established or admitted facts, reasonable inferences that
may be drawn from the record as a whole, and the inherent probabilities of the allegations.
Double D Construction/ Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 30
623 (2001)(citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56
Fed. Appx. 516 (D.C. Cir. 2003); see also Roosevelt Memorial Medical Center, 348 NLRB 1016,
1022 (2006) (noting that an ALJ may draw an adverse inference from a party’s failure to call a
witness who may be favorably disposed to a party, and who could reasonably be expected to
corroborate its version of events, particularly when the witness is the party’s agent). Credibility 35
findings need not be all or nothing propositions. Indeed, nothing is more common than for a
judge to believe some, but not all, of the testimony of a witness. Daikichi Sushi, 335 NLRB at
622; Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera
Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). Accord:

11 Tr. 301.
12 The record shows that after Gaston and Trotter attempted to apply for work, the Respondent hired:
Gary Rodgers, Michael Dawson, Arlie Jolly, Kenton Beaty, Curtis Dunston, Michael Dunston, Walter
Hann, and Clinton Green. See Jt. Exh. 1. In addition, Shawn Herzog credibly testified that Dawson and
Curtis Dunston were both hired after Trotter and Gaston tried to apply for work. (Tr. 493–494).
13 Tr. 692.
14 Tr. 660.
15 Tr. 649–651.
JD–61–14
6
General Fabrications Corp., 328 NLRB 1114 fn. 1 (1999), enfd. 222 F.3d 218 (6th Cir. 2000).
See also J. Shaw Associates, LLC, 349 NLRB 939, 939–940 (2007).
My overall observation during the trial was that the General Counsel’s witnesses were
largely credible in their testimony and demeanor, and that they testified in a convincing and 5
straight forward manner indicative of truthfulness. On the other hand, Griffiths, Respondent’s
lone witness in this case, testified in a less convincing manner, and was frequently inconsistent,
evasive, and less than forthright. For example, at one point Griffiths testified that he was at the
jobsite “every day,” so he personally knew when the employees started and finished their work.16
However, he also testified that at the time of the Englewood project, he was working on another 10
job in Michigan,17 and he was only on the Englewood project 1 to 2 times per week.18 Griffiths’
inconsistent testimony can also be found in the fact that he denied that he asked applicants if they
were union members,19 and at the same time he claimed that he asked applicants whether or not
they were union because he was concerned that the union employees might be penalized by the
Union if they were working a nonunion job.20 Griffiths’ testimony was also implausible and 15
unbelievable at times. For example, Griffiths testified that Nieman was not authorized to assign
employees to work on the hydro scaffolding if they were not “certified,” but that testimony is
inconsistent with the credible and uncontradicted testimony of several witnesses who testified
that they were not certified and they were assigned to work on the hydro scaffolding prior to and
after the layoff. Griffiths also insisted that he was concerned with his workers’ safety, but he 20
also admitted that he put those workers back up on the scaffolding after the OSHA inspector
deemed the scaffolding unsafe and declared it should not be used.21 Thus, while much of the
evidence in this case was uncontradicted, on those occasions where Griffiths’ testimony
conflicted with that of the General Counsel’s witnesses, I credit the General Counsel’s witnesses
and their versions of the events that unfolded in this case over that of Griffiths. 25
Specifically, with regard to the witness testimony pertaining to the refusal to hire
allegation, I note that Gaston and Trotter appeared sincere and honest in their demeanor. They
provided clear, detailed and mutually corroborative testimony with regard to their attempt to find
employment with the Respondent, and the response they received from Griffiths. I also note that 30
Trotter and Gaston recalled Griffiths’ representation that he experienced problems with a union
in Toledo, which adds to the likelihood that the conversation happened as Trotter and Gaston
described. Griffiths, on the other hand, presented unbelievable, implausible and inconsistent
testimony when he asserted on one hand that he failed to recall what Trotter and Gaston
described at the trial,22 and on the other hand, he relayed the encounter with the “two guys”35
which were clearly Trotter and Gaston. Thus, I specifically credit Trotter’s and Gaston’s version
of the conversation that occurred when they attempted to apply for work with the Respondent.
40

16 Tr. 91.
17 Tr. 96.
18 Tr. 683.
19 Tr. 733.
20 Tr. 697.
21 Tr. 678.
22 Tr. 660.
JD–61–14
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3. The contentions of the Parties
The General Counsel alleges that the Respondent’s refusal to hire or consider for hire
both Trotter and Gaston because they identified themselves as union bricklayers was
discriminatory and a violation of Section 8(a)(3) and (1) of the Act. The Respondent asserts that 5
it did not violate the Act because neither Trotter nor Gaston had any interest in working for the
Respondent, and it did not discriminate against them because it hired other workers who were
union employees, such as Ted Cobb.23
4. Analysis10
It is a long established principle that it is unlawful to refuse to hire an individual because
of their union affiliation. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185–186 (1941); Willmar
Electric Service, 303 NLRB 245 (1991). Applicants for employment are considered to be
employees as defined in Section 2(3) of the Act, and thus enjoy the statutory protection against 15
antiunion animus as provided in Section 7 of the Act. However, the Board has held in Toering
Electric Co., 351 NLRB 225 (2007), that an applicant for employment must also be genuinely
interested in seeking to establish an employment relationship with the employer in order to
qualify as a Section 2(3) employee, and thus be protected against hiring discrimination based on
union affiliation or activity. In simple terms, the Board explained “one cannot be denied what 20
one does not genuinely seek.” Id at 228. The Board further held that the General Counsel bears
the ultimate burden of proving an individual’s genuine interest in seeking to establish an
employment relationship with the employer. Id.
With respect to establishing a refusal-to-hire violation, the Board has set out an analytical 25
framework for determining whether an employer violates the Act by failing or refusing to hire or
by failing or refusing to consider hiring a job applicant because of his or her union activities or
affiliation. Allstate Power VAC, Inc., 354 NLRB 980, 981–982 (2009); FES, 331 NLRB 9
(2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). To establish a
discriminatory refusal to hire, the General Counsel must, under the allocation of burdens set forth 30
in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), establish the following: (1) the respondent employer was hiring, or had concrete
plans to hire at the time of the alleged unlawful conduct; (2) the applicant had experience or
training relevant to the announced or generally known requirements of the positions for hire, or
in the alternative, the employer has not adhered uniformly to such requirements, or that the 35
requirements were themselves pretextual or were applied as a pretext for discrimination; and (3)
antiunion animus contributed to the decision not to hire the applicant. Specifically, there must be
a showing that the employer maintained animus against such union membership or sympathy,
and the employer refused to hire the applicant because of such animus. Kenmore Electric Co.,
355 NLRB 1024, 1028 (2010). Once the General Counsel meets this initial burden, the burden 40
shifts to the respondent to show that it would not have hired the applicant even in the absence of
his or her union activity or affiliation. Allstate Power, supra at 2; FES, supra at 12.
Contrary to the Respondent’s assertion, I find that Trotter and Gaston possessed a
genuine interest in seeking to establish an employment relationship with the Respondent. The45

23 Resp. Br. at page 4.
JD–61–14
8
credible and uncontradicted evidence shows that they were both out of work at the time they
attempted to apply for work, they received the Union’s permission to work the nonunion job,
they had their tools with them at the time they attempted to apply, and they both credibly
testified that they were ready, willing and able to work for the Respondent. The General Counsel
has carried its burden of showing that their interest in working for the Respondent was genuine, 5
and thus, they qualify as Section 2(3) employees who are entitled to protection against hiring
discrimination based on union affiliation or activity.
Applying the Board’s refusal-to-hire standards to this case, the undisputed evidence
shows that with regard to the first factor, the Respondent had concrete plans to hire, and in fact, 10
had hired bricklayers and masons for the project when Trotter and Gaston applied. The
Respondent’s admission that on or about May 8, 2013, “[it] was hiring, or had concrete plans to
hire” employees, is consistent with the evidence that Respondent was hiring employees for a job
that was larger than its Michigan employees could handle.24 With regard to the second factor,
the record shows that Trotter and Gaston had experience and training that was relevant to the 15
requirements of the positions for hire, as Gaston had been a mason for 24 years and Trotter had
been a bricklayer and member of the Union for 29 years, and their qualifications and experience
were communicated to Griffiths and Nieman. Finally, with regard to the third factor, the credible
evidence clearly establishes that antiunion animus contributed to the decision not to hire these
applicants. In fact, the evidence establishes that antiunion animus was the only reason the20
Respondent decided not to hire them, as Griffiths specifically informed both Trotter and Gaston
that he was “not hiring union bricklayers.”25 The fact that these employees were not hired
because of antiunion animus is further evinced by, and consistent with, Herzog’s uncontradicted
testimony that Griffiths informed him that the Respondent was not hiring union bricklayers.26
Furthermore, in considering the compelling evidence of Respondent’s unlawful layoff, failure to 25
recall two union employees, and coercive and threatening statements (as found below), I find that
the evidence overwhelmingly shows that Respondent maintained animus against union
membership, and it refused to hire Trotter and Gaston because of such animus. Kenmore Electric
Co., supra at slip op. at 5.
30
As mentioned above, once the General Counsel meets this initial burden, the burden
shifts to the Respondent to show that it would not have hired the applicants even in the absence
of their union activity or affiliation. Allstate Power, supra at 2; FES, supra at 12. In this case, the
Respondent failed to offer any credible evidence to satisfy such a burden. In addition, I find no
merit to Respondent’s assertion in its brief that its failure to hire Trotter and Gaston was not 35
discriminatory because it hired other union bricklayers. It is important to note that the
Respondent failed to offer any credible evidence showing that it was aware the other employees
hired were union members. To the contrary, the credible evidence shows that those union
members did not disclose their union affiliation to the Respondent, as Cobb credibly testified that
he never wore any clothing containing a union insignia on the jobsite,27 Dawson credibly testified 40

24 See consolidated complaint paragraph 6(a) and Respondent’s answer admitting that allegation.
See also Tr. 638–640.
25 Tr. 301–302.
26 Tr. 474.
27 Tr. 555.
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9
that he never told the Respondent he was a union member,28 and Miller credibly testified that he
did not indicate that he was a union member on the Respondent’s contact sheet when he was
hired.29
On the basis of the above, I find that the Respondent violated Section 8(a)(3) and (1) of 5
the Act by failing to hire Trotter and Gaston.30
5. The alleged unlawful interrogation and coercive statement by Griffiths in violation of
Section 8(a)(1) of the Act.10
The General Counsel alleges that the Respondent, by Griffiths asking Trotter and Gaston
if they were union bricklayers, unlawfully interrogated those employees with regard to their
union affiliation or sympathies in violation of the Act.31 The Respondent argues the fact that
Griffiths saw the union insignia, and asked if Trotter and Gaston were union, “was not 15
discriminatory, [as] it was consistent with giving notice that he is Open-Shop.”
I find that the Respondent’s assertion is misplaced and without merit. First, the
Respondent is mistaken with regard to the nature of the allegation. The General Counsel does
not allege, as Respondent contends, that the statement was discriminatory (and therefore a 20
violation of Section 8(a)(3) of the Act); rather, the allegation is that the questioning was coercive
in violation of Section 8(a)(1) of the Act. An employer violates Section 8(a)(1) by statements
that are coercive and which have a reasonable tendency to interfere with employees’ rights under

28 Tr. 597.
29 Tr. 176.
30 I note that the consolidated complaint alleges the Respondent refused to hire or “consider for hire”
Trotter and Gaston. The Board’s framework for analysis of alleged discriminatory refusal-to-consider
violations also appropriately allocates the Wright Line burdens, but requires two factors rather than the
three factors for refusal-to-hire violations. In such refusal-to-consider cases, the General Counsel bears
the burden of showing: (1) that the respondent excluded applicants from the hiring process, and (2) that
antiunion animus contributed to the decision not to consider the applicants for employment. Allstate
Power, supra at 3; FES, supra at 15. If the General Counsel establishes this, the burden shifts to the
respondent “to show that it would not have considered the applicants even in the absence of their union
activity or affiliation.” Id.
I find that Griffiths considered Trotter and Gaston for hire, but refused to hire them upon noticing
the union insignias on their apparel, and upon receiving confirmation of their union membership and
desire to organize the Respondent. Thus, I find the appropriate analysis for this unfair labor practice
allegation is under the refusal-to-hire framework articulated by the Board. Notwithstanding that
determination, assuming arguendo that Respondent’s actions toward Trotter and Gaston could be
characterized more appropriately as a refusal-to-consider for hire, I find the evidence still supports a
violation of the Act under the refusal-to-consider factors. Griffiths excluded Trotter and Gaston from the
hiring process by changing his mind and pulling back the applications he was going to hand to them,
thereby excluding them from the hiring process. In addition, as mentioned above, antiunion animus not
only contributed to, but was the sole reason for Respondent’s decision not to consider those applicants for
employment. Finally, Respondent failed to show that it would not have considered the applicants even in
the absence of their union activity or affiliation.
31 See consolidated complaint paragraph 5(a)(i).
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the Act. Scripps Memorial Hospital Encinatas, 347 NLRB 52 (2006); Exterior Systems, Inc., 338
NLRB 677, 679 (2002); Lin Rogers Electrical Contractors, 328 NLRB 1165, 1167 (1999).
With issues of interrogation, the Board determines “whether under all the circumstances
the interrogation [of an employee] reasonably tends to restrain, coerce, or interfere with rights 5
guaranteed by the Act.” Scheid Electric, 355 NLRB 160 (2010); Bloomfield Health Care Center,
352 NLRB 252 (2008), quoting Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. sub
nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Among the factors the Board
considers in such an analysis are the identity of the questioner, the place and method of the
interrogation, the background of the questioning, the nature of the information sought, and 10
whether the employee is an open union supporter. Scheid Electric, supra at slip op.1; Stevens
Creek Chrysler Jeep Dodge, 353 NLRB 1294, 1295 (2009).
Applying these factors, I find it inconceivable that the questioning of the employees
could be more coercive. The questioning came from the Respondent’s highest official--its 15
owner, it took place during the process of considering the applicants for employment, and the
nature of the information sought concerned whether they were union members. While the
employees had various union insignias on their clothing, they had not disclosed the fact that they
were union members as reflected by Griffiths’ inquiry as to whether they were union bricklayers.
I find that questioning these applicants for hire about their union affiliation and membership was 20
clearly coercive in nature and reasonably tended to coerce them, and thus interfered with their
rights under Section 7 to engage in union activities and support.
Second, Respondent’s assertion that Griffiths’ questioning was lawful because his intent
was to simply give notice that the Respondent was an “open shop,” is also without merit. The 25
Board has held that interrogating employees with regard to their union preferences in the context
of job application interviews is inherently coercive and unlawful. Electro-Tec, Inc., 310 NLRB
131 (1993); Thriftway Supermarkets, 276 NLRB 1450, 1459–1460 (1985). It is also well
established that an employer violates the Act by questioning job applicants about their
willingness to work for a nonunion shop. Standard Sheet Metal, Inc., 326 NLRB 411 (1998). 30
The Board has also held that the intent or motive of the respondent is not relevant with regard to
8(a)(1) violations of the Act. Exterior Systems, supra at 679; Scripps Memorial Hospital
Encinitas, supra; GM Electrics, 323 NLRB 125, 127 (1997); see also Williams Motor Transfer,
284 NLRB 1496, 1499 (1987). Thus, the motive or intent behind Griffiths’ questioning has no
relevancy in an 8(a)(1) context. Accordingly, I find that Griffiths’ questioning of Trotter and 35
Gaston as to whether they were union bricklayers constituted unlawful interrogation of their
union sympathies or affiliations in violation of Section 8(a)(1) of the Act.
The General Counsel also alleges that Griffiths’ statement to Trotter and Gaston that he
was not going to hire union bricklayers violated the Act.32 The Respondent contends that 40
Griffiths’ “banter” after they both replied they were union bricklayers, which included his
statement to them that he was “not hiring union bricklayers,” was “protected speech under 8(c)
of the Act and the First Amendment of the U.S. Constitution, and therefore it is not admissible to
show any violation of the Act.”33

32 See consolidated complaint paragraph 5(a)(ii).
33 Resp. Br. at p. 14.
JD–61–14
11
The First Amendment of the Constitution of the United States of America provides that
“Congress shall make no law …abridging the freedom of speech….” In relation to the freedom
of speech principle, Section 8(c) of the Act provides that:
5
The expressing of any views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be
evidence of an unfair labor practice under any of the provisions of this Act, if
such expression contains no threat of reprisal or force or promise of benefit.
10
An employer’s right to free speech is not absolute; it must be balanced against the employees’
right to engage in union activities or refrain from such activities, free of coercion, restraint and
interference.
Informing the union applicants that Respondent was not hiring union bricklayers is an 15
expression that clearly contains a threat of reprisal, and it is therefore not entitled to the
protection of Section 8(c) of the Act. In fact, it is well established that employers violate Section
8(a)(1) of the Act by making statements to employees that job applicants will not be hired
because of their union membership or affiliation. Exterior Systems, Inc., supra at 679; Lin
Rogers Electrical Contractors, supra at 1167. The Board has held that such statements are 20
coercive and have a reasonable tendency to interfere with employees’ rights under the Act. Id.
Accordingly, I find that Griffiths’ statement to Trotter and Gaston that he was not hiring union
bricklayers was coercive and violated Section 8(a)(1) of the Act.
25
C. The Respondent’s Alleged Unlawful Layoff of its Ohio Crew and Discriminatory Refusal
to Recall Employees Rob Miller and Michael Dawson, in Violation of Section 8(a)(3) and
(1) of the Act, and the Alleged Related Independent Violations of Section 8(a)(1) of the
Act
30
1. The Respondent hires the Ohio crew in April and May 2013
As mentioned above, the Englewood project was much larger than the Respondent’s
usual jobs. As a result, it commenced hiring local bricklayers/masons and laborers on April 22, 35
2013 to supplement his Michigan employees, and it hired more local masons and laborers in May
2013, which comprised its “Ohio crew.”34
2. Employees Rob Miller and Michael Dawson complain to Respondent about safety issues 40
and they communicate those issues to the Union
Rob Miller and Michael Dawson were union bricklayers who were hired by the
Respondent. They did not reveal their union affiliation when they filled out contact forms for
Griffiths by leaving blank the specific entries for “union,” and the local union’s name, address 45

34 Jt. Exh. 1.
JD–61–14
12
and telephone number.35 They also testified that they did not wear union insignias on their
clothes when they applied to work with the Respondent.
The masonry work on the project required the use of scaffolding, both traditional tubular
scaffolding and hydro or hydro electric scaffolding, which operated on hydraulic cylinders. The 5
record reveals that Griffiths and Nieman assigned masons and labors to work on both types of
scaffolding on the project. Both Miller and Dawson testified that they had concerns about the
safety of the scaffolding. Miller relayed his concerns to the Respondent that the tubular
scaffolding did not have the required base plates, toe boards, scaffold pins or safety rails. He
complained to Nieman several times in May, and in particular, one time on the morning of May 10
30, when he specifically told Nieman that he was concerned about the safety issues. Nieman
informed Miller that the Respondent was “working on it,” and that the missing safety equipment
should be on the jobsite the next day.36 Miller reported those safety concerns to Union Business
Agent Herzog, and he took pictures of the unsafe conditions on his cell phone and texted them to
Herzog. 15
During this same time period, Dawson also expressed his concerns about the safety of the
scaffolding to Nieman and Scott Opie, the assistant foreman, including complaints that the hydro
scaffolding lacked “x braces.” In response, Nieman told Dawson that Opie “knew what he was
doing” and to do as Opie directed. In late May, Dawson became so concerned after the safety 20
complaints were not addressed, he collected his tools and walked off the job. Before driving off
the site, while Dawson waited in his truck, Griffiths and Nieman approached him and asked why
he was leaving. Dawson informed them of the safety concerns and Griffiths and Nieman
apologized, told him they would fix the problems, and told him to go back to work, which he did.
That day, Dawson also conveyed his concerns about the safety of the scaffolding to Harp’s 25
superintendent, and he reported the safety concerns regarding the scaffolding to Herzog and the
Union.
3. Griffiths’ alleged pre-layoff violations of Section 8(a)(1) of the Act when he tells Mike 30
Dawson he knows he is a union member and informs Dawson that the Respondent is not
going to be union
Dawson testified that during his last week of work (the last week in May), he was
working laying brick with Griffiths on his left and Miller on his right. Griffiths told Dawson that 35
he noticed the Local 22 sticker on the back of his hat, and he asked, “are you fucking union?”37
Griffiths then said “I’ve had so much trouble out of these union guys,” and “they’re not getting
my job and I’m not going union.”38 Dawson testified that he responded that he was “not there
politically,” and just wanted to feed his family. Miller corroborated Dawson’s testimony,
testifying that he heard Griffiths yell at Mike Dawson, “I know you’re a fucking union 40
bricklayer,” and Griffith walked away saying something he could not hear, and gesturing

35 Jt. Exh. 2.
36 Tr. 182; 193–194.
37 Tr. 585.
38 Tr. 585.
JD–61–14
13
towards the back of Dawson’s hard hat, which had a Local 22 sticker on it.39 Griffiths never
offered testimony to dispute these allegations.
I find the evidence concerning this event shows that Griffiths, upon noticing the union
sticker on Dawson’s hardhat, realized he was a union mason and after asking him if he was 5
“fucking union,” he coercively told him that he knew he was a “fucking union bricklayer,” that
he had trouble out of the union guys, and that he was not “going union.” Such statements had a
reasonable tendency to coerce Dawson, and it conveyed that Respondent would not hire
employees because of their union activities and membership, in violation of Section 8(a)(1) of
the Act.4010
4. The Union informs the U.S. Department of Labor, Occupational Safety and Health
Administration (OSHA) of the safety concerns on the Englewood project and OSHA
investigates on May 30 and 31 and finds Respondent committed OSHA violations.15
On May 30 Herzog contacted OSHA about what he believed were serious safety
concerns on the jobsite. On that same day, OSHA Compliance Officer John Crane visited the
jobsite and found numerous violations pertaining to the tubular scaffolding. Crane told Griffiths
and Nieman they had to correct problems such as missing base plates, which they indicated they 20
would correct. Crane testified that after the inspection, he was contacted by an employee who
stated that the employees were back on the scaffolding that OSHA found to be unsafe. Crane
returned to the site on May 31 and found that the employees were working on the unsafe
scaffolding. Crane testified that he asked Griffiths why employees were assigned to work on the
scaffolding, and Griffiths told him that the employees were finishing a small portion of the work 25
and that he “had not expected to see [Crane] back for a couple of weeks.”
The record reveals that the safety complaints Crane received, and the infractions that
OSHA subsequently found, concerned the traditional tubular scaffolding that Respondent was
utilizing at the jobsite. Crane testified that the scaffolding was missing supporting base plates, 30
and “toe boards” were not in place to protect employees below the scaffolding from falling tools
or materials. Crane informed Nieman that the base plates were needed to provide support for the
traditional scaffolding, and that in order for the employees to work safely, base plates should be
installed. Nieman responded that the Respondent would take care of it, and that the base plates
were on site or were about to be delivered to the site. Crane testified that when he informed 35
Griffiths of the same information, Griffiths stated that the base plates were in his possession (he
said he had them in his vehicle) and they were going to put those on the scaffolding.
OSHA determined from its inspections on May 30 and 31, that Respondent committed
three violations of its statute. The first, Citation 1, Item 1, categorized as a “serious” violation40
with a proposed penalty of $4,200, concerned the tubular scaffolding and its lack of a structured
decking at the “T” junction.41 The second, Citation 1, Item 2, a “serious” violation with a

39 Tr. 208–210.
40 See consolidated complaint paragraph 5(b).
41 The OSHA “Citation and Notification of Penalty” found that Respondent violated: “29 CFR
1926.451(b)(6): On scaffolds where scaffold planks are abutted to create a long platform, each abutted
JD–61–14
14
proposed penalty of $4,200, concerned the tubular scaffolding and the lack of toe boards, screens
or guardrail systems to protect the employees from falling objects.42 And the third, Citation 3,
Item 1, a “willful” violation with a proposed penalty of $27,500, concerned the tubular
scaffolding and the fact that base plates were not installed on 13 sections of the scaffolding that
were in use.43 5
OSHA did not find that Respondent committed safety violations pertaining to its
construction and/or use of the hydro scaffolding, nor were there any indications of problems or
violations regarding the employees’ certification or training on the hydro scaffolding. Crane
testified that he did not have any conversations with Griffiths or Nieman about training or 10
certification on the hydro scaffolding. In fact, Crane testified that no certification was necessary
to work on hydro scaffolding, for either bricklayers or laborers.44 He testified that the only
training would consist of recognition of hazards and correct use. Crane testified that the only
question he had regarding the hydro scaffolding was about its basic setup, design and use, and he
asked Respondent for the owner’s manual so he could review it.45 Crane testified that he talked 15
to the Harp representative about training for Respondent’s employees, and Harp produced an
“Injury and Illness Prevention Plan, Employee Orientation Acknowledgement,” which was a
check list for various safety procedures and subjects reviewed and discussed with the employees
at their safety training.46 Finally, Crane testified that he was satisfied the employees received
training, and met the necessary standards to work on the hydro scaffolding.4720
5. The Respondent lays off the Ohio crew on May 31 and/or June 3, 2013
The Respondent admits laying off its entire Ohio crew of masons and laborers on May 31 25
and/or June 3, consisting of: Arlie R. Jolly, Curtis L. Dunston, Dustin M. Jackson, Francisco
Coronel, Gary F. Rodgers; Jose Diaz, Joseph W. Penny, Joshua E. Johnston, Kenton J. Beaty,

end shall rest on a separate support surface. This provision does not preclude the use of common support
members, such as “T” sections, to support abutting planks, or hook on platforms designed to rest on
common supports.” GC Exh. 5.
42 The “Citation and Notification of Penalty” found that Respondent violated: “29 CFR
1926.451(h)(1): In addition to wearing hardhats each employee on a scaffold shall be provided with
additional protection from falling hand tools, debris, and other small objects through the installation of toe
boards, screens, or guardrail systems, or through the erection of debris nets, catch platforms, or canopy
structures that contain or deflect the falling objects. When the falling objects are too large, heavy or
massive to be contained or deflected by any of the above listed measures, the employer shall place such
potential falling objects away from the edge of the surface from which they could fall and shall secure
those materials as necessary to prevent their falling.” GC Exh. 5.
43 The “Citation and Notification of Penalty” found that Respondent violated: “29 CFR
1926.451(c)(2): Supported scaffold poles, legs, posts, frames, and uprights shall bear on base plates and
mud sills or other adequate firm foundation.” GC Exh. 5.
44 Tr. 413–417.
45 Tr. 403.
46 Tr. 418–419; GC Exh. 17(a).
47 Tr. 419.
JD–61–14
15
Kevin McCleskey, Michael Dunston, Michael L. Dawson, Rob E. Miller, Ronald H. McCleskey,
and Segundo Pinguill.48
According to Griffiths, the only reason he laid off the Ohio crew was because those
employees did not have “certification” to work on the hydro scaffolding. That reason was 5
conveyed to the employees, as Dawson testified that when Griffiths laid off the entire Ohio crew,
he stated that he could not have anyone working who was not certified on the hydro
scaffolding.49 However, when Dawson told Griffiths that he used to be a laborer and had training
or certification for working on hydro scaffolding, Griffiths did not respond to that statement, and
he only said he would call them back and let them know about the work in a couple of weeks. 10
The record reveals that when the Ohio crew was laid off, Griffiths told several employees
besides Michael Dawson that he would call them when it was time for them to come back to
work. Arlie Jolly testified that when Griffith told him he would be off for 2 weeks, he said that
he would give him a call to return to work. In addition, Joseph Penny testified that Griffiths told 15
employees to go home early on the day they were laid off, and he said he would call them when
it was time to come back to work. Gary Rodgers testified that Griffiths told him he had some
problems with OSHA and until he sorted things out, he would have to lay some of the guys off.
Griffiths also told Rodgers that he would call him to come back to work, and that he eventually
did call him to tell him to return to work. 20
6. The Respondent’s alleged post-layoff coercive statements to employees in violation of
Section 8(a)(1) of the Act.
25
Curtis Dunston, a bricklayer with 20 years experience in the industry and a nonunion
employee at the time of the Englewood project, was one of the Ohio crew employees laid off by
the Respondent. The General Counsel has alleged that immediately after the layoff, Griffiths
made several coercive statements to Dunston during a telephone conversation on or about June 4,
and in a conversation at the jobsite on or about the following day. 30
As mentioned above, in determining whether an employer’s statements to employees
constitute unlawful threats in violation of Section 8(a)(1) of the Act, the Board has held that such
violations occur if the statements reasonably tend to interfere with, restrain, or coerce employees
in the exercise of their Section 7 rights. Exterior Systems, supra at 679; Scripps Memorial 35
Hospital Encinatas, supra; GM Electrics, supra. The Board does not consider whether the
statement succeeds in discouraging union or protected activity under the Act, nor is the intent or
motive of the respondent relevant. Id.
a. The allegation that on or about June 4, 2013, during a telephone conversation, 40
Griffiths told Curtis Dunston that employees were laid off by Respondent because of
their union activities and membership, in violation of Section 8(a)(1) of the Act.

48 The parties stipulated with regard to the payroll records (Jt. Exh. 1) that some of the employees
jobs are incorrectly listed, and specifically that Francisco Coronel, Curtis Dunson, and Mike Dunson are
masons, while Kevin McCleskey is a laborer. (Tr. 32).
49 Tr. 589.
JD–61–14
16
Curtis Dunston testified that when he went to pick up his paycheck after OSHA was at
the jobsite, Griffiths told him OSHA was there and Respondent did not have the required toe
boards or safety equipment for the scaffolding. Dunston was not told by Griffiths that he was
laid off, only that he should not come to work on Monday, but to come in on Wednesday. After 5
hearing that some employees were still working on the jobsite, and concerned about his job,
Dunston called Griffiths on Tuesday to find out whether he still had a job. During that
conversation, Griffiths told him he had to let all the Ohio guys go because none of them were
qualified to work on the hydro scaffolding, and Dunston responded that he never heard of that
requirement. Dunston testified that Griffiths informed him that some of the union employees 10
called OSHA on him because OSHA never comes to a site “back-to-back,” and that he had
OSHA and union problems. According to Dunston, after he told Griffiths that he had nothing to
do with those issues, Griffiths said he “had to let everybody go because he didn’t know which
one of the union guys was calling the [union] hall [and] OSHA on him,” and that he had to “sort
[that] stuff out.”5015
Curtis Dunston’s testimony was never refuted by Griffiths who testified twice in this
proceeding. Griffiths, as owner of the Respondent, was its highest ranking official, and his
statement had the tendency to coerce and restrain the employees in the exercise of their rights to
support and assist the Union and engage in protected activities. I find that by Griffiths’ 20
statements, he coercively informed Dunston that the employees were laid off because of their
union activities and membership, in violation of Section 8(a)(1) of the Act.51 See Mastercraft
Casket, Co., 289 NLRB 1414 (1988) (the Board held that an employer’s statements blaming a
layoff on the union’s knowledge of the employer’s favoritism toward his family is inherently
threatening). See also, Aero Metal Forms, 310 NLRB 397, 400 (1993). 25
b. The allegations that on or about June 5, 2013, at the jobsite, Griffiths: (i) implied that
employees were not being recalled because of their union activities; (ii) implied that
Respondent knew which employees supported the union; (iii) told an employee that 30
Respondent would not have employees on the job because of their activities; and (iv)
told an employee Respondent was not recalling employees because of their union
activities, in violation of Section 8(a)(1) of the Act.
Dunston also testified that he had a conversation with Griffiths later that week because 35
Griffiths owned him money and was bringing him a pay check. When Dunston met Griffiths at
the jobsite parking lot to pick up his check, Griffiths told him “you guys called the Hall on me,”
and “you guys called OSHA on me.”52 When Dunston told him he had nothing to do with it,
Griffiths said, “Rob, that son of a bitch, was taking pictures up here.” Griffiths described Rob as
the guy with the brown hat, and the record shows that Rob Miller wore a brown hard hat at 40
work.53

50 Tr. 340–341.
51 See consolidated complaint paragraph 5(c).
52 Tr. 342–343.
53 Tr. 344–346; 382.
JD–61–14
17
I find that by Griffiths’ statement, he coercively conveyed to Dunston that he knew
employees were reporting his safety infractions to the Union and OSHA, and in particular, that
Miller was one of those employees supporting the union and engaging in such protected
activities. His statement created the impression that those protected activities were under
surveillance. The Board’s test for determining whether an employer has created an unlawful 5
impression of surveillance is whether the employee would reasonably assume from the statement
in question that his union and protected activities had been placed under surveillance. Tres
Estrellas de Oro, 329 NLRB 50, 51 (1999); United Charter Service, 306 NLRB 150, 151 (1992).
Employees are not required to attempt to keep their activities secret before an employer can be
found to have created an unlawful impression of surveillance, and the Board does not require that 10
an employer’s words on their face reveal that the employer acquired its knowledge of the
employees’ activities by unlawful means. Id. I have no doubt that Dunston would reasonably
assume from Griffiths’ statement that his union and protected activities, and the activities of
other employees, had been placed under surveillance. Accordingly, I find that Griffiths’
statement unlawfully implied that Respondent knew which employees supported the Union, and 15
thereby created the impression that the employees’ union and protected activities were under
surveillance in violation of Section 8(a)(1) of the Act.54 Tres Estrellas de Oro, supra at 51;
United Charter Service, supra; Waterbed World, 286 NLRB 425, 426 (1987).
In addition, Griffiths said he could not afford to have union guys on the job because 20
“they’re too much trouble.” When Dunston asked Griffiths what he meant by that statement,
Griffiths said he had a job up north where “he had to pay into the hall of the union,” and it cost
him around $20,000.55 I find merit to the General Counsel’s assertion that this statement was
coercive and had a reasonable tendency to interfere with employees’ rights under the Act,
because it implied that employees were not being recalled by Respondent because of their union 25
activities and membership. Therefore, I find that Griffiths’ statement violated Section 8(a)(1) of
the Act.56
Later in that conversation, after Dunston assured Griffiths that he was not a union
member, Griffiths eliminated all ambiguity by stating that he “didn’t want any more union guys 30
on the job.”57 I find that Griffiths, by this statement, coercively conveyed to Dunston that he
would not have employees on the job because of their union activities and membership, and
coercively threatened that Respondent was not recalling employees who engaged in union
activities or who were union members, also in violation of Section 8(a)(1) of the Act.58
35
40

54 See consolidated complaint paragraph 5(d)(ii).
55 Tr. 344–346.
56 See consolidated complaint paragraph 5(d)(i).
57 Tr. 345.
58 See consolidated complaint paragraphs 5(d)(iii) and 5(d)(iv).
JD–61–14
18
7. The Respondent recalls most of the Ohio crew employees in June 2013, but Rob Miller
and Michael Dawson are not recalled from the layoff
Griffiths testified that employees from the Ohio crew began returning to work on or about
June 17, 2013, and that he recalled employees who called him looking to come back to work.595
The record establishes that most of the laid off employees (other than Miller and Dawson) were
recalled to work. The Certified Payroll Reports (Jt. Exh.1) establish that the following
employees were recalled and employed as of the following payroll week ending periods: Arlie
Jolly (6/29/13), Curtis Dunson (6/22/13), Francisco Coronel (6/29/13), Gary Rodgers (6/22/13),
Jose Diaz (6/22/13), Joseph Penny (6/29/13), Kenton Beaty (6/22/13), Kevin McCleskey 10
(6/22/13), Michael Dunson (6/22/13), Ronald McCleskey (6/22/13), and Segundo Pinguill
(6/22/13). These records, however, do not establish that Dustin Jackson or Joshua Johnston were
recalled from layoff and employed by the Respondent from June 2013 to January 2014. The
record does not contain evidence with regard to why these two employees were not recalled, or if
they were offered reinstatement and declined.60 With regard to the Ohio crew employees who 15
were recalled, some of them left the job before the project was completed. For example, the
record reveals: Jolly quit his employment with Respondent sometime in September 2013;61
Penny also left the Respondent around the time Jolly quit;62 and Rodgers left the Respondent’s
employment on November 13, 2013.63
20
It is undisputed, however, that the Respondent did not recall Rob Miller or Michael
Dawson from the layoff.
8. The contentions of the Parties25
The General Counsel alleges that the Respondent’s lay off of the Ohio crew and its
failure to recall Rob Miller and Michael Dawson were discriminatorily motivated and violated
Section 8(a)(3) and (1) of the Act. Specifically, the General Counsel asserts that the Respondent
laid off the employees because it believed certain employees had sought out and secured the 30
Union’s assistance in addressing their safety concerns, and that certain employees were
specifically responsible for OSHA’s visit the jobsite on May 30 and 31.
The Respondent denies that its layoff was discriminatorily motivated, and instead asserts,
as Griffiths testified, that the sole reason it laid off the Ohio crew of employees was because they 35
were not “certified” to work on the hydro scaffolding. In addition, it asserts that it did not recall
Miller or Dawson because those employees failed to call the Respondent to inquire about
returning to work, as Griffiths allegedly directed the employees to do.
40

59 Tr. 58–59.
60 This is a matter I leave to a compliance proceeding.
61 Tr. 457–459.
62 Tr. 511–513.
63 Tr. 523.
JD–61–14
19
9. Analysis
a. The Respondent’s alleged unlawful lay off of the Ohio crew.
In order to establish unlawful discrimination under Section 8(a)(3) and (1) of the Act in 5
‘‘dual motive’’ cases, the Board applies an analysis under Wright Line, 251 NLRB 1083 (1980);
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under this analysis the
General Counsel must carry the initial burden of showing ‘‘that the protected conduct was a
‘motivating factor’ in the employer’s decision.’’ Id. at 1089. Once the General Counsel has
satisfied this burden, the burden shifts to the respondent ‘‘to demonstrate that the same action 10
would have taken place even in the absence of the protected conduct.’’ Id. The United States
Supreme Court approved this allocation of burdens and adopted the Board’s Wright Line test in
NLRB v. Transportation Management Corp., 462 U.S. 393, 395, 403 fn. 7 (1983); see also
Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267,
278 (1994). In Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), the Board restated the test as 15
follows. The General Counsel has the burden to persuade that antiunion sentiment was a
substantial or motivating factor in the challenged respondent’s decision. The burden of
persuasion then shifts to the respondent to prove its affirmative defense that it would have taken
the same action even if the employee had not engaged in protected activity. See also Webco
Industries, 334 NLRB 608 fn. 3 (2001). 20
Applying that analysis here, I find that the General Counsel met its initial burden of
establishing that the Respondent’s layoff of its Ohio crew was unlawfully motivated. In W. R.
Case & Sons Cutlery Co., 307 NLRB 1457, 1463 (1992), the Board held that “a prima facie case
[of discriminatory motivation] is made out by proof of employee union activity, along with 25
employer knowledge of, and employer animus toward, it.” Those elements are present here. The
record shows that Respondent was well aware of the fact that some employees engaged in union
and protected activity by reporting unsafe working conditions to the Union, and in turn to
OSHA. Griffiths’ statements reveal that he knew union employees reported the safety issues to
the Union and OSHA because he stated that OSHA never shows up at a jobsite “back-to-back.” 30
The record is also rife with examples of the Respondent’s union animus, as reflected in Griffiths’
and Nieman’s undisputed expressions of their animosity towards the Union. As discussed above,
Griffiths commented to Herzog, Gaston and Trotter that he was not hiring union masons, and he
told Dawson that the Respondent was not going to be union. In addition, Griffiths told Dunston
that he could not afford union employees because they were “too much trouble” on a previous 35
job, and he did not want any more union employees on the job.
As added evidence that the General Counsel has made a prima facie showing of
discriminatory motivation, the record reveals that the timing of the layoff was suspect as the
layoff occurred within a day or two after OSHA visited the jobsite, and without any advance 40
notice. There is however, little doubt that the true motive behind Griffiths’ decision to lay off
the Ohio crew was for discriminatory reasons, as is reflected in his direct and unmistakable
statements to employees that the Ohio crew was laid off because he believed some of the union
employees reported Respondent’s safety infractions to the Union and to OSHA, and he was
trying to determine the identity of those employees. In this regard, Griffiths told Jolly that the 45
layoff started with the Union and when the employees contacted OSHA. Griffiths also told
Dunston that he had to let everyone go because he did not know which of the employees called
JD–61–14
20
the Union and OSHA, and he had to “sort it all out.” In addition, as discussed in greater detail
below, Nieman told Dunston that he could “thank those union assholes who got him laid off.”
Thus, I find the record contains direct and convincing evidence that the Respondent knew or
believed that its employees engaged in union and protected activities, that it harbored marked
anti-union animus as evinced by the Respondent’s numerous coercive and threatening statements 5
in violation of Section 8(a)(1) of the Act, and that the motivation for laying off the Ohio crew
was based on the union and protected activities of some employees who reported safety
infractions to the Union, and the Union reported them to OSHA.
The burden of persuasion then shifts to the Respondent to prove its affirmative defense 10
that it would have taken the same action even if the employees had not engaged in union and
protected concerted activity. As mentioned above, the Respondent asserts that the only reason it
laid off the Ohio crew was because they were not “certified” to work on the hydro scaffolding.
A close review of the record shows that for numerous reasons this asserted reason is not
supported by the evidence. 15
First, there is a glaring flaw in the Respondent’s purported reasoning--the hydro
scaffolding was never the subject of OSHA infractions or violations. The OSHA violations all
pertained to the tubular scaffolding and its lack of base plates and other precautionary measures
that would prevent employees from being hit by falling tools or debris. OSHA compliance 20
officer Crane never found any infractions with regard to the hydro scaffolding’s construction,
operation, nor with regard to any purported training or certification for working on that
scaffolding. Thus, Respondent’s assertion that it had to lay off the Ohio crew because they were
not certified to work on the hydro, when in fact the safety violations pertained to the tubular
scaffolding, is nonsensical and illogical. 25
In its brief, the Respondent attempts to offer an explanation for its faulty reasoning, by
asserting that “Mr. Dawson had complained about the incompetence in the erection and
operation of the Hydro-Mobile, and with Mr. Crane having obtained the Owner’s Manual,
everything had to be by the book, and Mr. Griffiths had the mandate and the obligation to 30
confirm that anyone using the Hydro-Mobile, both laborers and bricklayers, have certification”64
This explanation, however, is belied by the fact that Crane never found infractions with the
hydro scaffolding, its construction, operation or the training/certification for working on it, and
he only asked for the operator’s manual so that he could become familiar with its operation.
Crane also testified that after reviewing the employee safety/training records, which he requested 35
and received, he determined that the employees had adequate safety training to work on both the
tubular and hydro scaffolding. In addition, it should be noted that Respondent’s assertion that
“everything had to be by the book,” is a direct contradiction to Griffiths’ response to OSHA’s
first visit, where Crane determined that the tubular scaffolding was unsafe and required that it be
taken out of service until fixed. Instead of prohibiting the use of the scaffolds until they were 40
repaired as directed by OSHA, Griffiths’ response was to direct the employees to resume
working on that same faulty tubular scaffolding the very next day, in direct contradiction of
OSHA’s instructions, which I find is hardly operating “by the book” as the Respondent asserts.

64 Resp. Br. at p. 13.
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Second, the evidence reveals that the Respondent did not have to lay off the employees
because all the violations found by OSHA pertained to the traditional tubular scaffolding, and the
record reveals those infractions could have been easily and quickly remedied by the Respondent.
As mentioned above, the three violations found by OSHA concerned the tubular scaffolding and
its lack of a structured decking at the “T” junction, the lack of toe boards, screens or guardrail 5
systems to protect the employees from falling objects, and the fact that base plates were not
installed on sections of tubular scaffolding that were in use. Crane credibly testified that based
on his experience, it would have taken only hours to half a day to correct the safety problems
outlined in the OSHA citations.65 He also testified that a forklift was present at the jobsite which
could have been used to securely place the base plates under the tubular scaffolding. On that 10
subject, Miller testified that based on his many years of experience in the masonry field, it would
have taken half a day to tear down the scaffolding and install the equipment that would remedy
the safety infractions. He also testified that the safety equipment needed to fix the scaffolding
would be easy to find because the scaffolding and businesses in the area had the equipment. In
addition, Herzog testified that there were scaffold rentals near the jobsite in the Dayton, Ohio 15
area, and that based on his experience in the masonry business, it would have taken no more than
a few days to lease or rent scaffolding.
Third, the Respondent’s assertion that it had to lay off the employees because they were
not certified to work on the hydro scaffolding is not supported by the record, which shows 20
instead that there is no OSHA requirement that employees be certified to work on hydro
scaffolding. In fact, Crane testified (as did many of the General Counsel’s witnesses who were
experienced bricklayers) that there is no certification necessary to work on the hydro scaffolding.
Rather, an employer only needs to orient employees on how to work safely and recognize
hazards on the scaffolding, and that training can be accomplished in various ways, most notably 25
by a person within the company. With regard to the training issue, Crane requested and was
provided the general contractor’s training records (GC Exh. 17(a) and (b)), which convinced him
that Respondent’s employees had sufficient training to work on all the scaffolding on that
jobsite, both traditional and hydro.
30
Fourth, the record reveals that even though the Respondent owned its hydro scaffolding
and was aware that it was going to use the scaffolding for the Englewood project when it hired
its employees, it never inquired whether they had training or certification to work on the hydro
scaffolding. Critically, despite the fact that Griffiths testified that his Michigan employees were
certified (which he defined at trial as being trained by the manufacturer or supplier of the 35
equipment), he failed to offer any explanation why he could not use his Michigan employees to
operate the hydro scaffolding and therefore avoid laying off the employees.
Fifth, even assuming the record established that a “certification” was required to work on
the hydro scaffolding, the evidence reveals that when Griffiths told the employees they were laid 40
off because he could not have anyone working who was not certified on the hydro scaffolding,
Dawson spoke up and told Griffiths that he used to be a laborer and he had training or
certification for working on hydro scaffolding. However, rather than tell Dawson he could
continue to work, Griffiths failed to respond to the statement, and he said he would call the
employees back and let them know about the work in a couple of weeks. I find it implausible 45

65 Tr. 420–421.
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22
that if in fact the asserted reason for the layoff offered by Griffiths was true, he would not have
an experienced mason, who met the alleged “certification” requirement, stay and work on that
job which was already behind schedule. Griffiths’ failure to keep Dawson on the job with his
alleged satisfactory certification only proves further that Griffiths fabricated the layoff and used
it as an excuse to remove the union employees from his jobsite.5
Sixth, and finally, the record does not support the Respondent’s assertion that its layoff
was based on the Ohio crew not being certified to work on the hydro scaffolding, as it shows
instead that some bricklayers or masons worked on the hydro without “certification” prior to and
after the layoff. In that regard, Jolly testified that he worked on the hydro scaffolding before the 10
layoff occurred.66 In addition, Miller testified that before the layoff, he worked 6 or 7 times on
the hydro scaffolding at the project, and he was never asked if he was certified or trained to work
on that scaffolding. The record also shows that when some of the employees returned to work
after the layoff, they worked on the hydro scaffolding without any “certification.” Curtis
Dunston returned to work on June 17, and the Respondent had TNT (a supplier of construction 15
equipment) conduct a training program regarding the hydro scaffolding about four weeks later on
July 11. When Dunston returned to work, he and his brother worked that first day back on the
hydro scaffolding finishing off a gym wall. He estimated that he worked 2–1/2 days on the
hydro after returning from the layoff. Dunston also worked on the hydro scaffolding 1 day
before the TNT training program, and no one from the Respondent ever told him that he needed 20
to be certified to work on that scaffolding.
In regard to employees working on the hydro scaffolding without certification, the
Respondent asserts, based on Griffiths’ testimony, that Nieman was not authorized to put
employees on the hydro scaffolding to work before the layoff.67 However, Griffiths was not a 25
credible or believable witness, and Nieman never testified to corroborate Griffiths’ assertion. In
addition, Griffiths’ unsupported statement that Nieman was not authorized to assign employees
to the hydro scaffolding, does not constitute proof that employees did not work on that
scaffolding. As the record reveals to the contrary, some of the General Counsel’s witnesses
credibly testified that they had worked on the hydro scaffolding without certification both before 30
and after the layoff.
The Respondent also argues that the layoff was lawful because in addition to laying off
union employees, it also laid off nonunion employees. In its brief, it specifically asserts that “all
uncertified employees” were laid off, including “union bricklayers, non-union bricklayers, as 35
well as labors [sic].”68 This argument, like the Respondent’s other arguments above, lacks merit.
The Board has held that where the central aim of a layoff is to discourage union activity or to
retaliate against employees because of the union activities of some, the layoff will be unlawful
even though employees who were opposed to the union were laid off along with the others. J.T.
Slocomb Co., 314 NLRB 231, 241 (1994); see also McGraw of Puerto Rico, Inc., 322 NLRB 40
438, 451 (1996). In addition, the Board in finding that a respondent’s layoff of employees
violated Section 8(a)(3) and (1) of the Act, stated that “[t]he layoff itself, not the selection of
employees, was unlawful.” Pyro Mining Co., 230 NLRB 782 fn. 2 (1977).

66 Tr. 461.
67 Tr. 738.
68 Resp. Br. pp. 13–14.
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Based on this evidence, I find that Respondent failed to offer any credible
nondiscriminatory reason for the layoff, and that the Respondent’s asserted reason for the layoff
was mere pretext for its unlawful discriminatory motivation. Shattuck-Denn Mining Corp. V.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Therefore, Respondent has failed to carry its burden 5
of showing that the layoff would have taken place even in the absence of the protected conduct.
In making this finding, I note that the Board has found in similar situations that when a
respondent’s lay off was implemented for unlawful discriminatory reasons, it violates Section
8(a)(3) and (1) of the Act. Ferragon Corporation, 318 NLRB 359, 361–362 (1995); West-Pac
Electric, Inc., 321 NLRB 1322 (1996); Pyro Mining Co., supra at 782 fn. 2. Accordingly, I find 10
that Respondent’s layoff of the Ohio crew on May 31 and/or June 3, 2013, violated Section
8(a)(3) and (1) of the Act.69
b. The Respondent’s alleged unlawful failure to recall Rob Miller and Michael Dawson 15
from the layoff
It is undisputed that the Respondent did not recall Rob Miller and Michael Dawson after
the lay off when many of the employees were returned to work. Under a Wright Line analysis,
the General Counsel has carried its burden to persuade that antiunion sentiment and their 20
protected concerted activities were a substantial or motivating factor in the decision not to recall
Miller and Dawson. The evidence shows that Miller and Dawson were union members, that
Griffiths was aware of their union affiliation and protected activities, and that Griffiths believed
they engaged in the union and protected activity of registering complaints about the safety of the
working conditions with the Union and OSHA. As mentioned above, Griffiths became aware of 25
Dawson’s union affiliation during Dawson’s last week of work when he became openly hostile
about the fact that Dawson was wearing a union sticker, asking him, “are you fucking union?”
Griffiths also eventually concluded that Miller was a union member and the person responsible
for supplying the Union and OSHA with photographic proof of the safety violations, as he
testified that he believed Miller was a union member by the way he worked,70 and he told 30
Rodgers he did not know that Miller was a “big union guy.”
As mentioned above, there is direct evidence that Respondent harbored animus toward
the Union, which included Griffiths’ statements that he was not hiring union masons and “not
going union.” Furthermore, there is evidence that Respondent’s refusal to recall Miller and 35
Dawson was motivated by its belief that they engaged in the union and protected concerted
activity of reporting safety infractions to the Union and to OSHA, as reflected by Griffiths’
coercive statements he made to Jolly that the layoff started with the Union and when the guys
called OSHA; his statement to Dunston that he had to let everybody go because he didn’t know
which of the guys called the Union and OSHA; and (as discussed below) by Nieman’s statement 40
to Dunston that he could thank those “union assholes” who got him laid off. These facts reflect
that the General Counsel has made a very strong prima facie showing that Respondent’s failure
to recall Miller and Dawson was for discriminatory reasons.

69 See consolidated complaint paragraph 7.
70 Tr. 658.
JD–61–14
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However, with regard to the General Counsel’s prima facie case, the Respondent argues
that “while Miller engaged in an activity through his Union to notify OSHA, his activity was not
a concerted union activity.”71 On this subject, the issue before me is whether Miller and Dawson
engaged in union and/or protected concerted activities, and whether the Respondent’s failure to
recall them was motivated by one or both of those activities. While I have found that Miller and 5
Dawson clearly engaged in union activity by reporting Respondent’s unsafe working conditions
to the Union, I also find that those same complaints, which were in turn reported by the Union to
OSHA, also constituted engagement in protected concerted activities. The Board has held that
employee complaints to federal and state agencies are protected by Section 7 of the Act. Delta
Health Center, Inc., 310 NLRB 26, 43 (1993) (employees’ communications to a government 10
agency (the Public Health Service) were protected); Afro-Urban Transportation, 220 NLRB
1371 (1975) (employee effort to seek the aid of governmental organizations and agencies in
order to protect working conditions is protected activity provided it is undertaken without malice
or bad faith). In this case, Miller and Dawson’s activities were protected and they were
exercised in what appeared to be a good faith attempt to ensure the workplace safety for15
themselves and their fellow co-workers on the jobsite. Furthermore, the record is void of any
evidence that they engaged in those activities with malice.
With regard to the Respondent’s assertion that the activity was not concerted, I note that
in Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers I) and Meyers Industries, 281 NLRB 20
882, 887 (1986) (Meyers II), the Board overruled the doctrine that individual complaints to a
government agency are per se concerted.72 In those cases, the Board held that such activity is
still protected, however, in order for a violation to be established, it must also be shown that the
conduct was concerted.73 I find that both Miller and Dawson, during the same time period,
complained to the Respondent about unsafe working conditions on the jobsite, which obviously 25
affected and were concerns for all the employees. Miller and Dawson simultaneously, but
separately, reported those unsafe working conditions to the Union as a logical outgrowth of their
group concerns, which the Board has found to be concerted. Mike Yurosek & Son, Inc., 310
NLRB 831 (1993) (concerted activity includes concerns that are a “logical outgrowth” of group
concerns). Thus, I find that Miller’s and Dawson’s reporting of the unsafe working conditions to 30
the Union constituted protected concerted activity, as well as union activity. Accordingly, I find
no merit to the Respondent’s assertion that the General Counsel failed to make a prima facie
showing of unlawful motivation with regard to its failure to recall Miller and Dawson.
With the General Counsel having proved its prima facie case, the burden of persuasion 35
then shifts to the Respondent to prove its affirmative defense that it would have taken the same
action even if the employees had not engaged in union and protected concerted activity. The
Respondent asserts that it did not recall Miller and Dawson to their jobs because they failed to
call Griffith about returning to work. Griffiths testified that the employees who returned to work
were those who called him requesting to return, and that the only employee he ever called to 40
return to work was Ted Cobb, who had quit his job before the layoff.

71 Resp. Br. at p.12.
72 Overruling Alleluia Cushion Co., 221 NLRB 999 (1975).
73 The Board subsequently affirmed that decision in Myth, Inc., d/b/a Pikes Peak Pain Program, 326
NLRB 136 (1998).
JD–61–14
25
I do not credit Griffiths’ assertion that he only called Cobb to return to work, as Griffiths
was not a credible witness, and his assertion is inconsistent with what he told many of the
employees when he laid them off. At the time of the layoff, Griffiths told Miller he would call
the employees back to work in a week or two;74 he specifically told Miller he would call him to
be rehired;75 he told Jolly that he would give him a call to return to work;76 he told employee 5
Joseph Penny that he would call the employees when it was time to come back to work;77 and he
told Rodgers that he would call him to come back to work.78
Griffiths’ assertion is also inconsistent with the testimony of several of the General
Counsel’s witnesses who credibly testified that Griffiths and Nieman called them to come back 10
to work. For example, Griffiths called Jolly and told him he would put him back to work the
following week; Griffiths instructed Jolly to bring Penny back to work;79 and Nieman called
Rodgers and asked him if he wanted to come back to work. Critically, in addition to this
evidence and contrary to Respondent’s assertion, Dawson credibly testified that he did contact
the Respondent about returning to work after the layoff. In this regard, Dawson asked Griffiths 15
shortly after the layoff when he was going to be hired back and Griffiths said it would be a
couple of weeks. Dawson also left a message with Nieman inquiring if the Respondent was
going to hire the employees back soon. Neither Griffiths nor Nieman responded to those
inquiries.
20
Thus, the credible evidence belies Griffiths’ assertion that Miller and Dawson were not
recalled because they did not call him. Instead, the evidence reveals that Respondent’s asserted
reason for failing to recall the two very experienced masons at a time when there remained an
abundance of masonry work to be completed on a job that was behind schedule,80 constituted a
pretext for its unlawful motivation and its desire to remove the union workers from its work25
force. The Respondent also failed to offer any credible evidence which showed a legitimate
nondiscriminatory reason for the fact that it failed to recall Miller and Dawson.
Accordingly, I find that the Respondent’s failure to recall Miller and Dawson from layoff
was based on discriminatory and unlawful reasons, and it constituted a violation of Section 30
8(a)(3) and (1) of the Act.81

74 Tr. 201.
75 Tr. 250.
76 Tr. 447–448.
77 Tr. 511–512.
78 Tr. 521.
79 Tr. 449.
80 The record also shows that at the time of the layoff, the job (which was behind schedule) was only
about 25 percent finished and many of the witnesses testified that there was a significant amount of
masonry work left to do. (Tr. 596). In June and July the Respondent also hired additional masons to work
on the project, such as Quinton Greene, John Cooley and James Austin. (Tr. 705; Jt. Exh. 1). The
Respondent’s masonry work continued from June 2013 to January 4, 2014.
81 See consolidated complaint paragraph 7.
JD–61–14
26
c. The Respondent’s alleged unlawful statement attributed to its foreman, Daniel
Nieman, in violation of Section 8(a)(1) of the Act.
1. The supervisory issue pertaining to Nieman
5
As mentioned above, the General Counsel alleges, and the Respondent denies, that
Nieman is a supervisor and/or agent within the meaning of the Act.
Section 2(11) of the Act defines a supervisor as:
10
any individual having authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but requires 15
the use of independent judgment.
It is well established that the possession of any one of the indicia specified in Section
2(11) of the Act is sufficient to confer supervisory status, provided that the authority is exercised
with “independent judgment” on behalf of management and not in a routine manner. NLRB v. 20
Kentucky River Community Care, 532 U.S. 706, 713 (2001); Clark Machine Corporation, 308
NLRB 555 (1992); Bowne of Houston, Inc., 280 NLRB 1222, 1223 (1986). It is also well
established that the burden of proving supervisory status rests on the party asserting such status.
Kentucky River, supra at 713; Billows Electrical Supply of Northfield, Inc., 311 NLRB 878
(1993); The Ohio Masonic Home, Inc., 295 NLRB 390 (1989); Tucson Gas & Electric Co., 241 25
NLRB 181 (1979). The party seeking to prove supervisory status must establish it by a
preponderance of the evidence. The Republican Company, 361 NLRB No. 15, slip op. 5 (August
7, 2014). For the reasons set forth below, I find that the General Counsel has carried its burden
of showing beyond a preponderance of the evidence that Nieman exercised independent
judgment with regard to the supervisory indicia of assignment and direction of work.30
In Oakwood Healthcare, Inc. 348 NLRB 686, 689 (2006) the Board noted that with
regard to the meaning of the term “assign” in Section 2 (11) of the Act:
[W]e construe the term “assign” to refer to the act of designating an employee to a 35
place (such as a location, department, or wing) appointing an employee to a time
(such as a shift or overtime period), or giving significant overall duties, i.e., tasks,
to employee. That is, the place, time, and work of an employee are part of his/her
terms and conditions of employment. The assignment of an employee to a certain
department (e.g., housewares) or to a certain shift (e.g., night) or to certain 40
significant overall tasks (e.g. restocking shelves) would generally qualify as
“assign” within our construction.
The record in this case establishes that Nieman exercised independent judgment with
regard to assigning work for the Respondent. Besides the uncontradicted testimony from the 45
General Counsel’s witnesses who stated that Nieman assigned them where to work, Griffiths
specifically stated:
JD–61–14
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“[Nieman] would see what mason could be left on a little tight spot, what mason
is good in larger areas, where…some masons are quicker than others, so you put
him …on a longer stretch of wall so he can get more material laid from him. And
the guy who’s slower, maybe you put him in a little slow spot. I would leave that 5
up to him, you know, because I’m not going to be there – I can’t be there 24/7,
but I’d leave it to his best judgment.”82
The fact that Griffiths left it to Nieman’s judgment as to where to assign masons based on their
skill sets and abilities to perform certain jobs, and their abilities to perform work within a certain 10
time frame, is indicative of the exercise of independent judgment in the assignment of work.
In Croft Metals, Inc. 348 NLRB 717, at 721 (2006) the Board summarized the definitions
of “responsibly to direct” and “independent judgment” as set forth in its decision in Oakwood
Health Care, supra, as follows:15
The authority “responsibly to direct” is “not limited to department heads,” but
instead arises “[i]f a person on the shop floor has ‘men under him,’ and if that
person decides ‘what job shall be undertaken next or who shall do it,’ . . .
provided that the direction is both ‘responsible,’ . . . and carried out with 20
independent judgment.” “[F]or direction to be ‘responsible,’ the person
performing the oversight must be accountable for the performance of the task by
the other, such that some adverse consequence may befall the one providing the
oversight if the tasks performed are not performed properly.” “Thus, to establish
accountability for purposes of responsible direction, it must be shown that the 25
employer delegated to the putative supervisor the authority to direct the work and
the authority to take corrective action, if necessary. It must also be shown that
there is a prospect of adverse consequences for the putative supervisor if he/she
does not take the steps.” (Internal citations omitted).
30
“[T]o exercise ‘independent judgment,’ an individual must at a minimum act, or
effectively recommend action, free of the control of others and from an opinion or
valuation by discerning and comparing data.”
It is undisputed that Nieman ran the Respondent’s job as its foreman, directed the work, 35
and was responsible for making sure the work was completed. He was responsible for the work
of Respondent’s employees and he alone was accountable on those many occasions when
Griffiths was not there. While Griffiths was on the jobsite 3–4 days a week before the layoff,
and 1–2 days a week after the layoff, Nieman was the person who oversaw the Respondent’s
work.83 Griffiths testified that Nieman, as the “lay out person,” was responsible for making sure 40

82 Tr. 101.
83 Nieman never testified to offer any evidence to contradict the evidence offered by the General
Counsel’s witnesses. In this regard, Miller testified that Griffiths was on the jobsite only a couple of
times per week. Jolly testified that Nieman was in charge when Griffiths was not at the site, and that
before the layoff Griffiths was on the jobsite 3–4 days a week, and after the layoff, he was there 1–2 days
per week. Cobb also testified that Griffiths was on the job around 1–2 times per week. This evidence is
JD–61–14
28
the job was done correctly and he was the person the general contractor’s superintendent would
communicate with regarding the Respondent’s work on the job.84 The record reveals that
Nieman’s actions in directing the work was free from the control of others, especially when
Griffiths was not on the jobsite, as reflected by the General Counsel’s witnesses who testified
that Nieman directed what work to perform and where to perform it, without checking with 5
anyone.85
In applying the traditional criteria for the establishment of supervisory status to the facts
of the instant case, I find that the record establishes that Nieman exercised independent judgment
in the assignment and direction of the Respondent’s employees’ work, and therefore, the General 10
Counsel has met its burden of proving that Nieman was a supervisor within the meaning of
Section 2(11) of the Act.
2. The agent issue pertaining to Nieman
15
With regard to whether Nieman was an agent of the Respondent, Section 2(13) of the Act
states:
In determining whether any person is acting as an ‘agent’ of another person so as
to make such other person responsible for his acts, the question of whether the 20
specific acts performed were actually authorized or subsequently ratified shall not
be controlling.
The Board and the courts have long held that in determining whether a person acts as an
agent of another, the Board applies the common-law principles of agency. Dr. Rico Perez25
Products, 353 NLRB 453, 463 (2008); NLRB v. Longshoreman (ILWU) Local 10 (Pacific
Maritime Association, 283 F.2d 558, 563 (9th Cir. 1960) enfd. as modified 123 NLRB 559
(1959). Under the common-law rules of agency, an agency relationship can be established by
vesting an agent with actual or apparent authority. Actual authority is “created by a principal’s
manifestation to an agent that, as reasonably understood by the agent, expresses the principal’s30
assent that the agent takes action on the principal’s behalf.” Restatement (Third) Of Agency,
Section 3.01 “Apparent authority is the power held by an agent or other actor to affect a
principal’s legal relations with third parties when a third party reasonably believes the actor has
authority to act on behalf of the principal and that belief is traceable to the principal’s
manifestations.” Restatement (Third) of Agency, Section 2.03.35
The party asserting an individual acts as an agent must establish an agency relationship
with regard to the specific conduct alleged to be unlawful. Pan-Oston Co., 336 NLRB 305, 306
(2001). In addition, the Board has held that an employer may be responsible for an employee’s

supported by Griffiths’ admission that after June his attendance on the jobsite declined significantly to
approximately 1–2 days per week, and some weeks he was not on the site at all.
84 It is important to note that while the Respondent’s bricklayers and laborers were hourly paid,
Nieman was a salaried employee. While not an indicia of supervisory status, this evidence nevertheless
suggests that Nieman held a status separate from the bricklayers and laborers. Nieman also did not
perform masonry work on the job, but instead was responsible for directing the employees’ work.
85 Both Miller and Cobb testified that Nieman directed their work.
JD–61–14
29
conduct if the employee is “held out as a conduit for transmitting information [from the
employer] to the other employees.” D & F Industries Inc., 339 NLRB 618, 619 (2003).
In the instant case, Nieman was assigned to operate the Respondent’s business for
Griffiths and he was responsible for making sure the work was completed, especially on the 5
many days when Griffiths was not at the job site. Griffiths admitted that Nieman was
responsible for making sure the job was done correctly and he was the person the general
contractor communicated with regarding the Respondent’s work. The record establishes that
Griffiths vested Nieman with actual authority by expressing his assent that Nieman’s actions
were on Griffiths’ and the Respondent’s behalf. The record also establishes that Nieman’s 10
assignment as foreman vested him with apparent authority to act on the Respondent’s behalf
because the general contractor believed Nieman had the authority, and treated him as if he had
the authority, to act on Respondent’s behalf. In addition, the record reveals that Nieman was a
person who was a conduit between Griffiths and the employees for the transmission of
information. He was viewed by the employees as the person conveying Griffiths’ desires with 15
regard to the work, and he acted as the person responsible for getting the Respondent’s work
completed.
Based on the above, in addition to finding that Nieman was a supervisor, I also find that
he was an agent of the Respondent within the meaning of Section 2(13) of the Act, and he bound 20
the Respondent by his actions.
3. The allegation that on or about June 18, 2013, Respondent, by Nieman, told an employee
that the union and its supporters were to blame for the June 2013 layoff, in violation of
Section 8(a)(1) of the Act25
Curtis Dunston was recalled to work from the layoff on or about June 17, 2013. He
testified that during that first week he was back at work, he had a conversation with Nieman, in
which he asked Nieman about the possibility of working overtime hours. In response to that
question, Nieman told him, “No,” and that he “could thank them assholes from the union that got 30
[him] laid off for them two weeks.”86 Nieman never testified to deny the statement Dunston
attributed to him, and Respondent failed to offer any other evidence to rebut Dunston’s credible
assertion.
The General Counsel correctly alleges that Nieman’s statement violated the Act.8735
Nieman’s statement to Dunston that the union employees were to blame for the layoff had a
reasonable tendency to restrain, coerce, or interfere with Dunston’s rights to engage in union
activities under the Act. Accordingly, I find that the Respondent violated Section 8(a)(1) of the
Act through Nieman’s statement.
40

86 Tr. 354–356.
87 See consolidated complaint paragraph 5(e).
JD–61–14
30
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
5
2. The International Union of Bricklayers & Allied Craftworkers, Ohio-Kentucky
Administrative District Council, Local 22 Ohio, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of 10
the Act by:
(a) Unlawfully interrogating job applicants/employees about their union activities;
(b) Threatening or coercively informing job applicants/employees that Respondent was 15
not hiring employees because of their union activities and membership;
(c) Threatening or coercively informing employees that Respondent would not hire
employees because of their union activities and membership;
20
(d) Threatening or coercively informing employees that Respondent laid off employees
because of their union activities and membership;
(e) Coercively implying to employees that Respondent was not recalling them from
layoff because of their union activities and membership;25
(f) Coercively implying that Respondent knew which employees supported the union,
thereby creating the impression that the employees’ union and protected activities
were under surveillance;
30
(g) Threatening or coercively informing employees that Respondent would not have them
on the job because of their union activities and membership;
(h) Threatening or coercively informing employees that Respondent was not recalling
employees because of their union activities and membership;35
(i) Threatening or coercively informing employees that the layoff was caused by the
Union and/or the employees support for the Union;
(j) Refusing to hire and/or refusing to consider for hire applicants because they formed, 40
joined or assisted the Union and/or engaged in protected activities;
(k) Laying off employees because they formed, joined or assisted the Union and/or
engaged in protected concerted activities;
45
(l) Refusing to recall employees from layoff because they formed, joined or assisted the
Union and/or engaged in protected concerted activities;
JD–61–14
31
4. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act by:
(a) Refusing on or about May 8, 2013, to hire or consider for hire Roger Trotter and 5
George Gaston because of their union membership and activities;
(b) Laying off its Ohio crew on or about May 31 and/or June 3, 2013, consisting of:
Arlie R. Jolly, Curtis L. Dunston, Dustin M. Jackson, Francisco Coronel, Gary F.
Rodgers; Jose Diaz, Joseph W. Penny, Joshua E. Johnston, Kenton J. Beaty, Kevin 10
McCleskey, Michael Dunston, Michael L. Dawson, Rob E. Miller, Ronald H.
McCleskey, and Segundo Pinguill, because of their union and/or protected concerted
activities; and
(c) Failing to recall employees Rob Miller and Michael Dawson from layoff on or about 15
June 10, 2013, in retaliation for their union and/or protected concerted activities;
5. The above unfair labor practices affect commerce within the meaning of Section 2(2), (6)
and (7) of the Act.
20
6. The Respondent has not otherwise violated the Act.
REMEDY
25
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent, having discriminatorily refused to hire or consider for hire Roger 30
Trotter and George Gaston, must offer them the positions for which they applied, or if those
positions no longer exist, to substantially equivalent positions, without prejudice to their
seniority or other rights or privileges to which they would have been entitled had they not been
discriminated against by the Respondent. The Respondent must also make them whole for any
loss of earnings and other benefits they may have suffered as a result of Respondent’s 35
discriminatory refusal to hire or consider them for employment. Backpay shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010).
40
With regard to the Respondent’s layoff of the “Ohio crew,” the Respondent would
normally be ordered to offer its Ohio crew, including Arlie R. Jolly, Curtis L. Dunson, Dustin M.
Jackson, Francisco Coronel, Gary F. Rodgers, Jose Diaz, Joseph W. Penny, Joshua E. Johnston,
Kenton J. Beaty, Kevin McCleskey, Michael Dunson, Michael L. Dawson, Rob E. Miller,
Ronald H. McCleskey, and Segundo Pinguill, immediate and full reinstatement to their former 45
jobs, or if those jobs no longer exist, to substantially equivalent positions without prejudice to
their seniority or other rights or privileges previously enjoyed. However, as discussed above, the
JD–61–14
32
evidence established that besides Rob Miller and Michael Dawson, who were not recalled from
layoff for discriminatory and unlawful reasons, the Respondent recalled and employed for
various time periods, all other Ohio crew employees, with the exception of Dustin Jackson and
Joshua Johnston. Therefore, I order the Respondent to offer Jackson and Johnston immediate
and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially 5
equivalent positions without prejudice to their seniority or other rights or privileges previously
enjoyed.88 The Respondent is further ordered to make all the above named Ohio crew employees
whole for any loss of earnings and other benefits they may have suffered as a result of the
discrimination against them. Backpay shall be computed in accordance with F.W. Woolworth
Co., supra, with interest at the rate prescribed in New Horizons for the Retarded, supra, 10
compounded daily as prescribed in Kentucky River Medical Center, supra.
Having specifically found that Respondent discriminatory failed to recall Rob Miller and
Michael Dawson from layoff, the Respondent is ordered to recall and offer Rob Miller and
Michael Dawson immediate and full reinstatement to their former jobs, or if those jobs no longer 15
exist, to substantially equivalent positions without prejudice to their seniority or other rights or
privileges previously enjoyed, and make them whole for any loss of earnings and other benefits
they may have suffered as a result of the discrimination against them. As mentioned above,
backpay shall be computed in accordance with F.W. Woolworth Co., supra, with interest at the
rate prescribed in New Horizons for the Retarded, supra, compounded daily as prescribed in 20
Kentucky River Medical Center, supra.
The Respondent shall file a report with the Social Security Administration allocating
backpay, if any, to the appropriate calendar quarters. Respondent shall also compensate the
discriminatees for the adverse tax consequences for additional Federal and State income taxes 25
the discriminatees may owe, if any, as a consequence of receiving one or more lump-sum
backpay awards in a calendar year other than the year in which the income would have been
earned had the Act not been violated. Tortillas Don Chavas, 361 NLRB No. 10 (August 8,
2014).
30
The Respondent shall also be ordered to expunge from its files any references to the
failure to hire or consider for hire Roger Trotter and George Gaston, the unlawful layoff of the
Ohio crew employees, and the refusal to recall employees Rob Miller and Michael Dawson from
layoff, and notify them in writing that this has been done and that evidence of the unlawful
actions will not be used as a basis for future personnel action against them. 35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:89
40

88 The record does not establish why these two employees were not reinstated, or if they were offered
reinstatement and declined it. I find these are factual questions, and as such, should best be resolved by a
factual inquiry in a compliance proceeding. Dean General Contractors, 285 NLRB 573, 574 (1987)
89 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–61–14
33
ORDER
The Respondent, Euro Builders, LTD, Livonia, Michigan, its officers, agents, successors,
and assigns, shall
5
1. Cease and desist from
(a) Interrogating applicants for employment/employees about their union activities and
support.
10
(b) Informing applicants for employment/employees that Respondent was not hiring
them because of their union activities and membership.
(c) Informing employees that Respondent would not hire employees because of their
union activities and membership.15
(d) Informing employees that Respondent laid off employees because of their union
activities and membership.
(e) Implying to employees that Respondent was not recalling them because of their union20
activities and membership.
(f) Implying to employees that Respondent knew which employees supported the union
thereby creating the impression that the employees’ union and protected concerted
activities are under surveillance.25
(g) Informing employees that Respondent would not have them on the job because of
their union activities and membership.
(h) Informing employees that Respondent was not recalling them because of their union30
activities and membership.
(i) Informing employees that the layoff was caused by the Union or their support for the
Union.
35
(j) Failing to hire and/or refusing to consider for hire applicants because they formed,
joined or assisted the union and engaged in protected activities.
(k) Laying off employees because they formed, joined or assisted the Union and/or
engaged in protected concerted activities.40
(l) Refusing to recall employees because they formed, joined or assisted the Union
and/or engaged in protected concerted activities.
(m)In any like or related manner interfering with, restraining, or coercing employees in 45
the exercise of the rights guaranteed them by Section 7 of the Act.
JD–61–14
34
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer George Gaston and Roger
Trotter employment for the positions for which they applied, or if those positions no
longer exist, to substantially equivalent positions, without prejudice to their seniority 5
or other rights or privileges to which they would have been entitled had they not been
discriminated against by the Respondent.
(b) Make George Gaston and Roger Trotter whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them in the manner set forth 10
in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, offer Ohio crew employees
Dustin Jackson, Joshua Johnston, Rob Miller and Michael Dawson full reinstatement
to their former jobs, or if these jobs no longer exist, to substantially equivalent 15
positions without prejudice to their seniority or other rights or privileges previously
enjoyed.
(d) Make its Ohio crew, including Arlie R. Jolly, Curtis L. Dunson, Dustin M. Jackson,
Francisco Coronel, Gary F. Rodgers, Jose Diaz, Joseph W. Penny, Joshua E. 20
Johnston, Kenton J. Beaty, Kevin McCleskey, Michael Dunson, Michael L. Dawson,
Rob E. Miller, Ronald H. McCleskey, Segundo Pinguill, whole for any loss of
earnings and other benefits suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of the decision.
25
(e) Compensate affected employees for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar quarters for each employee.
(f) Within 14 days from the date of the Board’s Order, remove from its files any 30
references to the unlawful refusals to hire and/or consider for hire George Gaston and
Roger Trotter, the unlawful layoff of the “Ohio Crew,” including Arlie R. Jolly,
Curtis L. Dunson, Dustin M. Jackson, Francisco Coronel, Gary F. Rodgers, Jose Diaz,
Joseph W. Penny, Joshua E. Johnston, Kenton J. Beaty, Kevin McCleskey, Michael
Dunson, Michael L. Dawson, Rob E. Miller, Ronald H. McCleskey and Segundo 35
Pinguill, and the unlawful failure and refusal to recall Rob E. Miller and Michael
Dawson from layoff, and within 3 days thereafter, notify the employees in writing
that this has been done and that the above-referenced actions will not be used against
them in any way.
40
(g) 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 45
amount of backpay due under the terms of this Order.
JD–61–14
35
(h) Within 14 days after service by the Region, post at its facility in Livonia, Michigan,
copies of the attached notice marked “Appendix.”90 Copies of the notice, on forms
provided by the Regional Director for Region 9, 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 5
notices to employees are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, defaced, or covered by any 10
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 May 8, 2013.15
(i) 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.
20
(j) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
25
Dated, Washington, D.C. October 24, 2014
_______________________30
Thomas M. Randazzo
Administrative Law Judge

90 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–61–14
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 a representative 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 ask job applicants/employees about their union membership or otherwise
unlawfully interrogate them about their union activities and support.
WE WILL NOT inform job applicants/employees that we will not hire them because of their
union activities and membership.
WE WILL NOT inform employees that we will not hire employees because of their union
activities and membership.
WE WILL NOT inform employees that we laid off employees because of their union activities
and membership.
WE WILL NOT imply to employees that we are not recalling them from layoff because of their
union activities or membership.
WE WILL NOT imply to employees that we know who supported the Union and thereby create
the impression that their union and protected activities are under surveillance.
WE WILL NOT inform employees that we will not have union supporters or members on our
job.
WE WILL NOT inform employees that we are not recalling them from layoff because of their
union activities and membership.
WE WILL NOT inform employees that the layoff was caused by the Union or their support for
the Union.
WE WILL NOT refuse to hire or refuse to consider for hire applicants because they formed,
joined or assisted the Union and engaged in protected activities.
JD–61–14
WE WILL NOT lay off employees because they form, joined or assisted the Union and/or
engaged in protected concerted activities.
WE WILL NOT refuse to recall employees from layoff because they formed, joined or assisted
the Union and/or engaged in protected concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of your rights under Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order, offer Roger Trotter and George
Gaston the positions for which they applied, or if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or other rights or privileges they would
have enjoyed had they not been discriminated against.
WE WILL make Roger Trotter and George Gaston whole for any loss of earnings and other
benefits suffered as a result of our refusal to hire them or consider them for hire, less any interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
references to our unlawful refusals to hire or consider for hire Roger Trotter and George Gaston,
and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done
and that the refusals to hire or consider them for hire will not be used against them in any way.
WE WILL within 14 days from the date of the Board’s Order, offer “Ohio crew” employees
Dustin M. Jackson, Joshua E. Johnston, Rob E. Miller, and Michael L. Dawson, full
reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any rights or privileges previously enjoyed.
WE WILL make the “Ohio crew,” including the following named laid off employees, whole for
any loss of earnings and any other benefits resulting from their layoff, less any net interim
earnings, plus interest:
Arlie R. Jolly
Curtis L. Dunson
Dustin M. Jackson
Francisco Coronel
Gary F. Rodgers
Jose Diaz
Joseph W. Penny
Joshua E. Johnston
Kenton J. Beaty
Kevin McCleskey
Michael Dunson
Michael L. Dawson
Rob E. Miller
Ronald H. McCleskey
JD–61–14
Segundo Pinguill
WE WILL make Rob E. Miller and Michael L. Dawson whole for any loss of earnings and any
other benefits resulting from our failure to recall them from layoff, less any net interim earnings,
plus interest.
WE WILL compensate affected employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file a report with the Social Security
Administration allocating the backpay awards to the appropriate calendar quarters for each
employee.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
references to our unlawful layoff of the above-mentioned Ohio crew employees, and to our
failure to recall Rob E. Miller and Michael L. Dawson to work from the layoff, and WE WILL,
within 3 days thereafter, notify each of them in writing that this has been done and that their
layoff and failure to be recalled to work from the layoff, will not be used against them in any
way.
EURO BUILDERS, LTD
(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.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/09-CA-106788 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
JD–61–14
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, (513) 684-3750.