Jerry Ryce Builders

National Labor Relations Board - Board Decisions

Aug 29, 2008

352 N.L.R.B. 1262 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 143
1262
Jerry Ryce Builders, Inc. and Illinois District Council
No. 1, International Union of Bricklayers and
Allied Craftworkers, AFL–CIO. Cases 13–CA–
43917 and 13–CA–43918
August 29, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On November 19, 2007, Administrative Law Judge
Mark D. Rubin issued the attached decision. The Re-
spondent filed exceptions with supporting argument, the
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 and to adopt the recommended
Order as modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Some of the Respondent’s exceptions imply that the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are satis-
fied that the contentions are without merit.
The Respondent also contends that the judge improperly credited
one part, but discredited another part, of discriminatee Dwan Johnson’s
testimony. We disagree. “[N]othing is more common in all kinds of
judicial decisions than to believe some and not all” of a witness’ testi-
mony. NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950), revd. on other grounds 340 U.S. 474 (1951).
While Chairman Schaumber questions some of the judge’s basis for
crediting or discrediting certain testimony of the witnesses, he does not
find that a clear preponderance of the evidence demonstrates that the
judge’s credibility resolutions were incorrect.
3 No exceptions were filed to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) and (3) of the Act by failing to consider for
hire union applicants Luciano Padilla, Dwan Johnson, and Humberto
Juarez.
4 We shall modify par. 2(f) in the judge’s recommended order to cor-
rect an error in the triggering date for the Respondent’s provisional
notice-mailing obligation under Excel Container, 325 NLRB 17 (1997).
modified below and orders that the Respondent, Jerry
Ryce Builders, Inc., Chicago, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified below.
1. Substitute the following for paragraph 2(f).
“(f) Within 14 days after service by the Region, post at
its Chicago, Illinois office and jobsites copies of the at-
tached notice marked “Appendix.”26 Copies of the notice,
on forms provided by the Regional Director for Region
13, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by other ma-
terials. In the event that during the pendency of the pro-
ceedings the Respondent has gone out of business or
closed the facility involved in this proceeding, the Re-
spondent shall duplicate and mail, at its own expense,
copies of the notice to all employees and former employ-
ees of the Respondent at any time since March 9, 2007.”
Kevin McCormick, Esq., for the General Counsel.
Mark Hansen, Esq., of Chicago, Illinois, for the Respondent.
Robert S. Cervone, Esq., of Chicago, Illinois, for the Charging
Party Union.
DECISION
STATEMENT OF THE CASE
MARK D. RUBIN, Administrative Law Judge. These cases
were tried in Chicago, Illinois, on July 30 and 31, 2007, based
on charges filed by Illinois District Council No. 1, International
Union of Bricklayers and Allied Craftworkers, AFL–CIO (the
Union or the Charging Party) on March 21 and 22, 2007.
The Regional Director’s complaint, dated May 10, 2007, al-
leges that the Respondent violated Section 8(a)(3) of the Act by
refusing to hire, or consider for hire, Luciano Padilla, Dwan
Johnson, and Humberto Juarez, and by discharging or construc-
tively discharging Jack (Jacek) Probola and Andrzej (Andy)
Kwiecien. The complaint further alleges that the Respondent
violated Section 8(a)(1) by interrogating employees and job
applicants as to their union sympathies; telling employees that
they were not allowed on, or to work on, the jobsite because of
their affiliation with the Union; instructing employees to call
the Respondent’s office or the police if they saw union agents
on jobsites; impliedly threatening employees with discharge if
they engaged in union activity; promulgating an overly broad
rule by instructing employees not to talk to agents of the Union;
and instructing employees to stay on jobsites to eat their lunch
to avoid contact with agents of the Union.
The Respondent defends by denying it discharged Probola
and Kwiecien, and denying that it refused to consider for hire
or hire Padilla, Johnson, and Juarez because of their union af-
filiation. Further, the Respondent asserts that it either engaged
JERRY RYCE BUILDERS 1263
in none of the actions alleged as 8(a)(1) violations, or that cer-
tain of the actions, as alleged, were taken out of a legal context.
At the trial, the parties were afforded a full opportunity to
examine and cross-examine witnesses, to adduce competent,
relevant, and material evidence, to argue their positions orally,
and to file posttrial briefs. Based on the entire record, including
my observation of the demeanor of witnesses, and after consid-
ering the briefs filed by the Respondent, the General Counsel,
and the Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Illinois corporation, with an office and
place of business in Chicago, Illinois, is engaged as a masonry
contractor in the business of building and repairing brick,
block, and stone materials. During the year 2006, the Respon-
dent purchased and received at its Chicago facility, goods and
services valued in excess of $50,000 from firms which in turn
purchased those goods directly from outside the State of Illi-
nois. I find, and it is admitted, that the Respondent is, and has
been at all times material hereto, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
I find, and it is admitted, that the Union is, and has been at
all times material hereto, a labor organization within the mean-
ing of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
The Respondent has operated as a nonunion masonry con-
tractor in the Chicago area for many years. At some point after
the Respondent’s inception, it was purchased by its current
owner and operator, Boguslaw (Bogdan) Omielan (Omielan),
generally referred to as “Bogdan” by the witnesses. His daugh-
ter, Izabela, without official corporate title or job description, is
a manager who has been employed by the Respondent for about
3 years. She performs many and various job duties including
paying bills, meeting with clients, inspecting ongoing jobs to
insure compliance with blueprints, and communicating with the
Respondent’s employees. Barbara Kasper is the Respondent’s
corporate secretary, meets with potential customers during the
bidding process, and performs office work. The unfair labor
practices alleged in the complaint occurred in the context of the
Union’s attempt to organize the Respondent’s employees, util-
izing a salting strategy.
A. Alleged Probola and Kwiecien Discharges
Jack Probola, an organizer for the Union since August 2006,
and a bricklayer for 13 years, approached Omielan about a job
on a condominium jobsite near “Western” and “Milwaukee” on
February 22, 2007.1 Probola credibly testified that he wanted
to work for the Respondent in an effort to organize the Respon-
dent’s employees. Omielan asked Probola about his experi-
ence, and Probola told him that he had over 10 years’ experi-
ence, and that he was not looking for a job for the short term.

1 All dates herein reference the year 2007, unless otherwise noted.
Omielan told Probola that the Respondent made a profit of
about $4 million, that it had about $2 million under contract,
that it had 70 Dunkin Donuts to build, and that he was going to
need more bricklayers.2 Probola said that he knew a lot of
bricklayers and he would let Omielan know.
Omielan told Probola that he would start work the following
week. Omielan asked what Probola was paid on his previous
job. Probola said $29. Omielan responded that he could not
pay that kind of money, but if Probola was good, Omielan
could hire him at $25 per hour.3 Probola accepted the $25 of-
fer. This conversation occurred in the Polish language, which
is Omielan’s primary language, and in which Probola is fluent.
Probola testified in English, his primary language. Omielan
generally testified in Polish through an interpreter, but under-
stood and could speak a very limited amount of English.
Probola called Omielan the following Monday, February 26.
Omielan reminded Probola that he needed bricklayers. Probola
told Omielan that he would call some friends looking for work.
The next day Probola reported to the Western/Milwaukee job-
site and began work for the Respondent. At work on February
27, Omielan told Probola that he was going to need more brick-
layers very soon, and if Probola knew some, Omielan could
hire them.4 Probola mentioned “his friend” Andy (Kwiecien).
Subsequently, Omielan called Probola and told him to bring
“his buddy” to the jobsite. On Friday, March 2, Omielan again
called Probola, and reminded him to bring his buddy to the
jobsite.
The following Monday, Probola reported to work at a jobsite
in Evanston, accompanied by Kwiecien, an organizer for the
Union and a bricklayer for 23 years. Kwiecien began working
for the Respondent that day, and either that day or shortly
thereafter Kwiecien and Omielan discussed what rate of pay
Kwiecien would earn.5 Kwiecien asked for $27 per hour.
Omielan offered $20. The two agreed on $21. There is no
credible evidence that at the time they were hired, the Respon-
dent, or Omielan, had knowledge that either Probola or

2 Based on other uncontroverted evidence introduced at trial, I find
that during the period from February 2, 2007, to shortly before the trial,
the Respondent had undertaken some 17 projects in the Chicago area, 3
of which were still underway shortly before the date of the trial.
3 According to Probola, Omielan testified that Probola asked for $28,
but agreed to $25. These different recollections make no substantive
difference.
4 According to Omielan, Probola told Omielan that “he’s got a friend
. . . that’s a bricklayer.” Omielan told him, “[A]t this time, I do not
need but if he’s a friend, then bring him in.” Both Omielan and Probola
displayed the demeanor of witnesses attempting to testify truthfully.
Here, however, the fact that Omielan immediately hired Kwiecien lends
support to Probola’s version. Further, Probola’s testimony as to Omie-
lan’s statements as to the success of the Respondent in obtaining work
is uncontroverted and also lends support to Probola’s version. I, thus,
find Probola’s testimony that Omielan repeatedly reminded him of the
Respondent’s need for bricklayers and that it was at Omielan’s behest
that Probola brought Kwiecien to the jobsite to be credible.
5 Kwiecien did not testify as to whether he and Omielan had a con-
versation before Kwiecien began working for the Respondent. Omielan
testified that they spoke, but that he remembered nothing of the conver-
sation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1264
Kwiecien had a relationship with the Union.6 Kwiecien credi-
bly testified that he wanted to organize the Respondent’s em-
ployees.
According to Probola, and to the essentially similar testi-
mony of Kwiecien, at about 8 a.m. on March 22, they ap-
proached Omielan at the Milwaukee/Western jobsite. They
presented Omielan with a letter in both Polish and English that
they had previously prepared. The letter stated, verbatim, as
follows: “Collectively, both myself Jacek Probola and Andy
Kwiecen [sic] request an increased pay rate equal to or exceed-
ing the area standard of between $36.00 and $50.00 per hour.
Additionally, on our own time, intend to organize the remainder
of your employees to help them also increase their rate of pay.
Your prompt response is requested.”
Probola further testified, that after receiving the letter, Omie-
lan told Probola and Kwiecien that he “felt something,” that
they were from the Union, and that they were asking for even
more money than union bricklayers earned. Omielan told
Probola and Kwiecien that they were not supposed to be there
because “you are union.”7 Omielan added that he was not go-

6 Omielan testified that prior to the occasion he hired Kwiecien, he
had noticed him on a different construction site, sometime in the first 6
months of 2006. Omielan testified, “I have a construction site on Fos-
ter and there was a picket line from the Union, he was coming and
going and was passing around. He wasn’t standing there in the picket
line. He was just, he arrived, he walked around and he left.” Counsel
for the Respondent then asked Omielan, “Based on what you had seen
of Andy at the time before he came to the jobsite, did you have any
thoughts as to what his involvement with the Union was?” Omielan
answered, “It was kind of far but I have seen him that he had a conver-
sation with the people that were on the picket line and what function he
was having and the Union, I have no idea.” But then in answer to fur-
ther questions from the Respondent’s counsel, Omielan testified, in
essence, that at the time he hired Kwiecien, Omielan believed Kwiecien
was “involved with the Union,” because “I did see him when he was
talking to the people at the picket line. . . .”
I find that this testimony of Omielan is not credible or reliable in es-
tablishing prior knowledge of Kwiecien’s union affiliation. When the
Respondent’s counsel asked Omielan the question the first time, Omie-
lan responded by mentioning that Kwiecien was “kind of far” away,
and that he had “no idea” what Kwiecien’s involvement with the Union
was. Omielan said nothing in his initial answer about seeing Kwiecien
speaking to anybody. It was only subsequently, after the Respondent’s
counsel asked Omielan if he had any thoughts as to Kwiecien’s in-
volvement with the Union based on what he had seen, that Omielan
testified that at the time he hired Kwiecien, he believed he was in-
volved with the Union because he saw Kwiecien talking to people on
the picket line. Further, the Respondent’s position statement to the
Region, submitted during the course of the investigation, in arguing that
the Respondent had knowledge that Kwiecien and Probola were affili-
ated with the Union, asserts that such knowledge occurred after the two
were hired. In view of Omielan’s admission that he was far away, his
testimony the first time that did not include mention of seeing Kwiecien
talking with anybody, and the Respondent’s position statement, I find
that Omielan’s testimony that at the time he hired Kwiecien and
Probola he believed they were affiliated with the Union, not to be
credible.
7 As to Probola’s testimony, the transcript literally reads as follows:
“And he says you’re not supposed to be here. Andy ask him a question
why. He says because you are union that’s not a job. You’re supposed
to be here.” The transcript appears in error here. Probola testified to
ing to give them that kind of money, because “I can’t,” and that
Probola and Kwiecien are “supposed to leave the job.”
Kwiecien responded, “[I]f you’re not going to give us that kind
of money we gonna, we want to work, stay and organize the
bricklayers.” Probola testified that Omielan replied by telling
Probola and Kwiecien to “leave the job now.”
Kwiecien testified that he handed the letter to Omielan, who
tried to hand the letter back. Kwiecien told Omielan to keep
the letter. Omielan said that they wanted more money than the
union made. Kwiecien responded that it was standard for Chi-
cago. Omielan said that he couldn’t give them that kind of
money. Kwiecien responded, “Okay, can we come back to
work and organize your company on our time?” According to
Kwiecien, Omielan did not directly respond to the question, but
said that he had a feeling that “you guys” were from the Union.
Kwiecien replied, “So what, we just want to organize your
company.” Kwiecien testified that Omielan responded, “No,
you are not supposed to work on this job and you not belong
here, just leave.” Kwiecien testified that the entire conversation
occurred in Polish.
Omielan testified that Probola and Kwiecien handed him the
letter, and asked his opinion. Omielan noticed the $50 figure
and told them that he had agreed to pay Probola $25 and
Kwiecien $21, and that was how much he could pay them.
Probola and Kwiecien responded that “for that kind of money
they were not going to work.” Omielan said, “Well, then you
will not work.”
Gregor Podjasek, a longer-term employee of the Respondent,
and called as a witness by the Respondent, testified to overhear-
ing the conversation.8 Podjasek has been employed by the
Respondent for about 4 years, first as a bricklayer, and then as a
forklift operator. Podjasek, on direct examination, after ini-
tially denying he knew Kwiecien, testified that he knew
Kwiecien because they both attended a company “safety” meet-
ing. Podjasek testified that at about 8 a.m. as he was at the
jobsite preparing for work, he saw Probola and Kwiecien hand
a piece of paper to Omielan, and Kwiecien tell Omielan that
they wanted to speak to him. According to Podjasek, after
Omielan took the paper, he asked, “[Y]ou want higher wages
than the Union?” Omielan, Podjasek testified, then told
Probola and Kwiecien that they “can go back to work because I
cannot accept this paper.” Finally, Podjasek testified that
Kwiecien said, “We’ll soon meet,” and Probola and Kwiecien
walked to their cars.
When Podjasek, on direct examination, was asked whether
he could recall anything more about the conversation, he testi-
fied, “Well, no, it’s just what I stated before that after they
showed the piece of paper, Bogdan (Omielan) protested then
and he said you know that I am not a union company and I
cannot pay you so much and I cannot accept that. So they
turned around and walked away.” Subsequently, on cross-
examination by the Union’s counsel, Podjasek admitted that

the effect that Omielan told him and Kwiecien that they were not sup-
posed to be on the job because they were union. In other words,
Probola testified that Omielan told Kwiecien that because he was un-
ion, he was not supposed to be on that job.
8 Podjasek testified in Polish, through an interpreter.
JERRY RYCE BUILDERS 1265
Omielan told Probola and Kwiecien that he knew they were
from the Union.
I credit the testimony of Kwiecien, and the essentially simi-
lar testimony of Probola, as to the conversation. Kwiecien and
Probola displayed impressive testimonial demeanor and ap-
peared to be earnestly attempting to truthfully answer the ques-
tions of all counsel, including on cross-examination. Podjasek
was less impressive. After testifying on direct examination that
he was present to hear the conversation because he was “pre-
paring for work,” Podjasek testified on cross-examination by
the Union’s counsel that, in fact, he was doing “nothing” at the
time of the conversation, just “standing there” propped “against
the cilice.” On cross-examination by the Union’s counsel, Pod-
jasek testified that at the time of the conversation he was not a
forklift operator, but later on cross-examination when asked
who was operating the forklift that day, Podjasek testified, “It
was I.” On direct examination, Podjasek testified that he could
remember nothing else about the conversation, but on the cross-
examination of the Union’s counsel, Podjasek suddenly re-
membered that Omielan had said that he knew Probola and
Kwiecien were from the Union.9 I also recognize that Podjasek
is economically dependent on the Respondent as a long-term,
full-time employee.
Omielan was responsive to questions of all counsel and oth-
erwise displayed appropriate witness demeanor but, in the con-
text of the Union’s attempt to organize the Respondent, his
testimony is not logical. For Omielan to be credited, I would
have to accept that the two paid union organizers, Kwiecien and
Probola, were willing to quit their jobs in a dispute over a wage
increase, when their entire purpose in securing employment
with the Respondent was to organize the Respondent’s employ-
ees. Indeed, the Board has recognized that “a salt seeks em-
ployment for the purpose of furthering a union’s objectives
. . . .” Oil Capitol Sheet Metal, 349 NLRB 1348, 1355 (2007).
On balance, in weighing my conclusions as to Podjasek’s
credibility, the demeanor of all the witnesses, and the context in
which the conversation occurred, I credit the testimony of

9 Also troubling in respect to Podjasek’s credibility, counsel for the
General Counsel, on cross-examination, asked Podjasek a straightfor-
ward question, as to whether, prior to testifying, he had spoken with
anybody concerning his testimony. Podjasek instead of directly an-
swering the question, responded; “For what, I don’t understand the
question.” When the same question was asked a second time, Podjasek
denied he had spoken to anybody about his testimony, prior to testify-
ing. Podjasek then went on to specifically deny that he had on any
prior occasion spoken about his testimony to the Respondent’s attorney,
to Omielan, or to anybody else. To accept this testimony, I would have
to believe that the Respondent’s counsel had no idea what Podjasek
would testify to, whether Podjasek was actually a witness to the con-
versation, whether Podjasek was able to hear the conversation, and
whether Podjasek’s testimony would help or hurt his client. The Re-
spondent’s counsel appeared otherwise well prepared to present and
argue his case, and competent. In my experience, with no idea as to
whether a prospective witness would help or hurt his case or was even a
witness qualified to testify as to an occurrence, it is highly unlikely that
a competent attorney would put such a witness on the stand. This lends
further doubt to Podjasek’s veracity and to Omielan’s version of the
conversation.
Kwiecien10 and the essentially similar testimony of Probola as
to their conversation with Omielan. Accordingly, I find that in
response to Kwiecien telling Omielan that he and Probola
wanted to continue to work for the Respondent and organize
the Respondent’s employees on their own time, Omielan told
them that they did not belong there, and to leave. I also find
that after Kwiecien handed Omielan the letter, Omielan said
that he had a feeling they were from the Union.
B. Alleged Refusal to Consider, and Failure to Hire
Pursuant to the Union’s organizing campaign, Union organ-
izer Luciano Padilla, accompanied by union bricklayers Dwan
Johnson and Humberto Juarez traveled to the Respondent’s
jobsite on March 9, about 3 days after Probola told Padilla that
the Respondent was looking for more bricklayers.11 Organizer
Padilla completed the apprenticeship program of Local 24,
International Union of Bricklayers and Allied Craftworkers,
AFL–CIO (Local 21), and is a journeyman bricklayer with 7
years of experience. Johnson is enrolled in Local 24’s appren-
ticeship program, and has completed the 3 months of required
classroom training and 2000 of the required 4500 hours of ac-
tual on-the-job training. Juarez, a journeyman bricklayer, has
completed a union apprenticeship program which required 4500
hours of apprenticeship training, and has been a bricklayer
since 1998.
When Padilla, Johnson, and Juarez went to the Respondent’s
jobsite, all wore attire with the Union’s or a union’s logo or
name prominently displayed. After locating Omielan working
on a scaffold, Padilla, accompanied by Johnson and Juarez,
conversed with Omielan. Padilla told Omielan that they were
bricklayers looking for work. Omielan replied that he wasn’t
looking for bricklayers. Padilla asked about the Respondent’s
job on Western and Milwaukee. Omielan said that he had only
one group working. Padilla asked if he was sure that the Re-
spondent didn’t need bricklayers.12 Omielan responded, “Yes,”
and asked, “why doesn’t the Union get you a job.” Padilla
responded that he wanted to work there because the jobsite was
close to his house.

10 The Respondent introduced an Illinois wage claim application
completed by Kwiecien on March 23 seeking redress for the Respon-
dent’s failure to pay earned wages to Kwiecien. In the application,
Kwiecien wrote the following, apparently as a reason for discharge:
“For asking for my money.” The Respondent argues that this statement
contradicts the General Counsel’s 8(a)(3) theory of discharge. There is,
however, no other evidence which would support the idea that
Kwiecien was fired for seeking payment of his earned wages or that the
subject even came up in the discharge conversation. Indeed, as found,
the evidence demonstrates that Kwiecien (and Probola) were dis-
charged because of their relationship to the Union. Even if Kwiecien
believed when he filled out the application that he was fired for seeking
his earned wages, this would not change the result herein. My findings
herein are based on the evidence presented, not what Kwiecien may
have believed when he filled out the application on March 23.
11 Probola’s superior, Union Lead Organizer Steve Nelms, had dis-
cussed with Padilla that the Respondent was considered a target for
organizing.
12 Padilla’s actual testimony was, “I said if he was sure, and he said
yes.” However, in the overall context of Padilla’s testimony, I find that
Padilla’s question went to Omielan’s responses that the Respondent
didn’t need bricklayers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1266
Padilla asked if he could fill out an application or leave his
name. Omielan answered, “No.” Padilla asked Omielan for his
card. Omielan refused. Juarez and Johnson asked again if he
was sure he wasn’t looking for any “guys.” Omielan said he
wasn’t looking for “any guys.” Padilla asked Omielan who he
was, and Omielan answered that he was the Respondent’s su-
perintendent. Padilla asked again for Omielan’s business card,
and Omielan again refused. Padilla, Johnson, and Juarez con-
tinued to ask Omielan questions, but he stopped responding.
After the conversation, Padilla, Johnson, and Juarez waited for
a while at the jobsite, but Omielan avoided them. Eventually,
Padilla, Johnson, and Juarez left the jobsite.13
On January 3, 2007, about 2 months before Padilla, Johnson,
and Juarez traveled to the jobsite, the Respondent placed a
“help wanted” classified advertisement in the “Polish Daily

13 My finding of facts as to the conversation is based on the credited
testimony of Padilla, and the essentially similar testimony, in most
substantive respects, of Johnson and Juarez. In addition, Johnson testi-
fied that Omielan asked whether they “worked for the Union.” Neither
Padilla nor Juarez testified to Omielan asking this question. In view of
the testimony of Juarez and Padilla, and because all three were wearing
union logo attire, thereby making such a seemingly redundant question
unlikely, I find that Omielan did not ask whether the three “worked for”
or were affiliated with the Union.
Omielan testified in English, as to the conversation, which took
place in English, as follows: “That guy, three guys, is speaking about
what—the company, Jerry Ryce. Me, I’m Jerry Ryce. Okay, and an-
other union, I’m not union. Next I’m—the job, who are you, your
bricklayer, your neighbor? I’m bricklayer. I’ll write down the phone—
the bricklayer. Okay, and another speaking about—are you working
the western—yes, I’m working the western—. And what crews is
working the—western? Same crews, same guy. Okay, what’s your
name? Boguslaw. Okay, thank you very much. That was it.”
But the Respondent’s position statement to the Region during the in-
vestigation, introduced by the General Counsel, stated as follows: “We
understand that Luciano Padilla, Dwan Johnson or Humberto Juarez
claim to have applied for work with Jerry Ryce Builders on March 9,
2007, and that they spoke with Jerry Ryce’s Superintendent Bogdan on
that matter. However, Mr. Bogdan Omielan has no recollection of
speaking to anyone on or around that date about employment with the
Company. Similarly, Mr. Omielan cannot recall either refusing to
accept contact information from anyone seeking work, or discussing
union affiliation with anyone seeking work at the time alleged.”
Padilla, Johnson, and Juarez all displayed the testimonial demeanor
of witnesses attempting to truthfully answer questions of all counsel.
While their testimony was not identical, it was consistent on the sub-
stantive issues. Further, Probola credibly testified that he was working
nearby during the conversation, that he was able to hear some of it, and
that he heard Omielan comment to Padilla, Johnson, and Juarez to the
effect that the Union had no jobs, and that he was not going to hire any
bricklayers. On the other hand, the Respondent’s position statement is
clearly inconsistent with Omielan’s testimony and its level of detail,
and demonstrates that at least as of the date of the statement, April 4,
2007, Omielan either had no recollection of the conversation or as-
serted that he did not. On balance, I credited the testimony of Padilla,
and the essentially similar testimony of Johnson and Juarez.
The parties elicited testimony from the various witnesses as to how
far off the ground Omielan’s scaffold was at the time of the conversa-
tion. Even if the scaffolding was 10 to 15 feet off the ground, as testi-
fied to by Omielan, there is insufficient evidence that this would pre-
clude either the conversation, or the ability of the various witnesses to
hear what was said.
News” of Chicago. The advertisement, in Polish, stated that the
Respondent was seeking bricklayers and helpers to bricklayers.
In addition to the hiring of Jaroslaw and Marcin Sral, discussed
below, the Respondent hired two additional bricklayers in June.
C. Respondent Hires Jaroslaw Sral and Marcin Sral14
Jaroslaw Sral is a journeyman bricklayer with more than 5
years of experience, and a member of Local 74, International
Union of Bricklayers and Allied Craftworkers, AFL–CIO. Sral
was referred by a member of a Bricklayers Union Local to the
Respondent to seek work.15 On March 16, Sral traveled to the
Respondent’s jobsite on Belmont and Cicero. Sral asked for
the “owner,” and then spoke to Omielan, who took Sral to a
nearby bank parking lot for the conversation. They conversed
in Polish. Sral asked about work. Omielan asked Sral if he
ever belonged to a union. When Sral responded in the negative,
Omielan said that it was good that he did not belong, and that in
6 months Omielan would give Sral all of the benefits he would
get with a union, including vacation. Omielan added that he
had enough work for 3 years, that he had about 30 Dunkin
Donuts and 3 condominiums. Sral asked if Omielan could hire
his brother, who was looking for a job. Omielan said he would
think about it, and give Sral a call. Later that day, Omielan
called Sral, and told him to bring his brother, Marcin Sral, to
the Evanston jobsite the following day. Marcin Sral had less
than a year’s experience as a bricklayer, and had completed 1
year of a 3-year union apprenticeship program.
On March 17,16 both Sral brothers reported to the Evanston
jobsite in the morning. At the jobsite, Omielan asked if they
were with a union. They responded that they didn’t “work for a
union.” Omielan asked if they knew any other bricklayers and
told them to go to work. Jaroslaw worked as a bricklayer, and
Marcin worked as a laborer the first week, and subsequently
laying brick. On direct examination, the Respondent’s counsel
asked Omielan, “Why were you able to employ the bricklayer
and the laborer about a week after you had told the three appli-
cants that there was no work?” Omielan answered as follows:
“Because I needed one bricklayer and not the three of—, not
three bricklayers.”
At about 7:30 a.m., Omielan asked Jaroslaw Sral a second
time if he had a friend, or knew anyone looking for a job, be-
cause he needed bricklayers. Sral responded that if he knew of
anyone, he would let Omielan know. Later that morning, at
about 9:10 a.m., Omielan approached Jaroslaw Sral at the job-
site, and again asked if he belonged to the Union. Sral an-
swered that he did not belong. Omielan responded that was
very good “because the Union is sh–t.” Later that week, Omie-

14 Omielan testified that sometime after Padilla, Johnson, and Juarez
visited the jobsite, he hired a bricklayer and also hired the bricklayer’s
brother as a laborer. Omielan testified that the bricklayer’s name was
“Yarek Struch.” Clearly, in the context of the entire record including
the testimony of the Sral brothers, Omielan was referring to the Sral
brothers. None of the briefs addresses Omielan’s testimony as to
“Yarek Struch.”
15 Sral testified that he was referred by Robert Fital from “Local 21,
BAM.”
16 I note that March 17, 2007, was a Saturday. All witnesses agreed
that the Sral brothers were hired on a Saturday.
JERRY RYCE BUILDERS 1267
lan had two additional conversations with the Sral brothers at
the jobsite. During both conversations Omielan asked the
brothers whether they “worked” for the Union, and whether
they knew any other bricklayers because he needed workers.
During the second conversation, Omielan said that he was go-
ing to hold a meeting the following day.
On March 23, the Respondent held a meeting for its employ-
ees at its office, before work. The Sral brothers, other workers,
Bogdan Omielan, Izabela Omielan, and Barbara Kasper at-
tended the meeting. Bogdan Omielan, Izabela Omielan, and
Kasper spoke about safety issues at the meeting, with Bogdan
Omielan telling the Respondent’s employees that the “Union is
sending OSHA so please be careful and use the safety precau-
tions on the jobsite.” During the course of the meeting, Bogdan
Omielan told the Respondent’s employees that Probola and
Kwiecien belonged to the Union and he had fired them,17 and
that the employees “got to watch out for union guys,” and if
they “see them [Probola and Kwiecien] on the job, call police
because they’re union and they’re not supposed to be there.”
Bogdan Omielan also instructed the Respondent’s employees,
“that we would take lunch on the jobsite, just to stay on the job,
don’t go out to our cars because union guys might come up and
talk to us.”18

17 Jaroslaw Sral credibly testified as follows as to what Omielan
said: “He says Jacek [Probola] and Andrzej [Kwiecien] belong to the
Union and he let them go.”
18 Credited testimony of the Sral brothers. Their testimony is essen-
tially similar. They both demonstrated the demeanor of witnesses
striving to truthfully answer the questions of all counsel. They both
demonstrated good memory, and their testimony was consistent on
cross-examination. This is not to say that their testimony was identical
or that there weren’t minor inconsistencies. For example, as to what
Bogdan Omielan said at the meeting as to eating lunch on the jobsite,
Jaroslaw Sral testified that Omielan told them to eat on the jobsite
“because there might be Jacek, Robert and Andrzej and they will try to
make us belong to the union. To avoid any conversations with them.”
Marcin Sral testified that Omielan “said we would take lunch on the
jobsite, just to stay on the job, don’t go out to our cars because union
guys might come up and talk to us.”
Contrariwise, despite extensive testimony at trial, Bogdan Omielan
did not deny the comments attributed to him by the Sral brothers.
Further, even though both Izabela Omielan and Barbara Kasper were
called as witnesses by the Respondent, and testified as to the meeting,
neither specifically denied the comments attributed to Bogdan Omielan
by the Sral brothers. Izabela Omielan testified that her father, Bogdan,
was present at the meeting, that the meeting was a “safety meeting,”
that she passed out a safety brochure as to power lines, that she in-
structed the employees to read the brochure and to sign a paper con-
firming that they read the brochure, that she reiterated to the employees
that they should stay 10 feet away from power lines, and that Barbara
Kasper also spoke to the employees. She testified that before the meet-
ing started some of the employees were standing around in groups, and
she overheard “a couple questions the guys were asking like what’s
going on with our company. I don’t know, I didn’t really hear anything
specific.” After testifying that she didn’t “hear anything specific,”
Omielan later added that she assumed they were talking about union
activities because she heard the word “union” spoken, but also testified
that she could not identify which employee made the comment.
Izabela Omielan further testified that Barbara Kasper told the em-
ployees that if they see trespassers on a jobsite they should not let them
in because it was a safety issue, and that if they were interested in a
About March 28, while Jaroslaw Sral was working on the
Evanston jobsite on the second floor, Bogdan Omielan again
conversed with Sral about the Union. Omielan again asked Sral
if he belonged to a union. Sral responded that he did not.
Omielan told Sral that Izabela Omielan was bringing an IRS
W-4 form to the jobsite, and that if Sral ever belonged to the
Union, he would have problems with the Union and with IRS.19
ANALYSIS AND CONCLUSIONS
A. Interrogation
The complaint alleges that, in violation of Section 8(a)(1),
Bogdan Omielan interrogated a job applicant about March 16,
and interrogated employees about March 17 and 29. I found
that on March 16, when Jaroslaw Sral first approached Omielan
about a job, Omielan asked whether Sral ever belonged to a
union, and that when Sral answered in the negative, Omielan
told him that was “good.” I also found that on March 17, their
first day at work, Omielan asked both Sral brothers if they

union, they can go to union meetings after work and not to discuss
these things during work. Izabela Omielan also testified that at some
point during the meeting, one of the employees said that he would go
and “beat them up,” apparently referring to union members or represen-
tatives, “and there will be no problems.” According to Izabela Omie-
lan, “And that’s when my father broke down. He’s like, no, no, no.
Leave them alone, you know. Let it be, you know.”
Kasper testified that after Izabela talked about safety, Kasper talked
about the Respondent’s rules, that employees’ free time is their free
time, but when they are working they shouldn’t be talking to anybody,
that during the lunch and after lunch they are free to do whatever they
want, and that the Respondent “didn’t want them to get to any activities
other than work in our work sites or on our property.” Kasper also
testified that one of the employees asked, “What can I do if I don’t
want to talk to union representatives.” According to Kasper, Bogdan
Omielan answered, “Just eat lunch inside.”
In my observations, both Izabela Omielan and Kasper displayed the
demeanor and other characteristics of truthful witnesses. They dis-
played good recall, and were reasonably consistent with their answers
both on direct and cross-examination. As noted earlier, and signifi-
cantly, neither specifically denied the statements attributed to Bogdan
Omielan by the Sral brothers. On balance, I credit the testimony of the
Sral brothers as to statements made by Bogdan Omielan at the meeting.
19 Credited testimony of Jaroslaw and Marcin Sral. Their testimony
was substantively similar, not identical, as to what Omielan said to
Jaroslaw on March 28. They both testified that they were both present
for the conversation. Omielan testified, but did not deny the Sral’s
testimony as to the conversation.
I also credited the testimony of the Sral brothers as to conversations
one or both had with Omielan on March 16 and 17, and a few days
later. To the extent Omielan testified to the contrary, he is not credited.
Again, both Sral brothers testified forthrightly and consistently on
direct and cross-examination, and demonstrated excellent recall of the
events. Omielan was confused as to the Sral brothers’ names, couldn’t
initially remember when the first conversation occurred until suggested
by counsel, and could not remember anything about that conversation
other than “he is looking for a job and do I need a bricklayer?” Fi-
nally, Omielan answered “no” to the following question posed by the
Respondent’s counsel: “Were there ever any discussions between you
and the two brothers who you hired about the union during the period
they were employed for Jerry Ryce?” But this question specifically
limited the time period to when the brothers were actually employed by
the Respondent which, therefore, didn’t include the initial conversation
which occurred prior to employment, on March 16.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1268
“were with the Union,” and later that same day again asked
Jaroslaw Sral if he belonged to the Union and, when Sral again
responded in the negative, told Sral that was good because the
“Union is sh–t.” Finally, I found that on March 28, Omielan
again asked Jaroslaw Sral if he belonged to a union.
The General Counsel maintains that Omielan engaged in co-
ercive interrogation on each of these occasions. The Respon-
dent, in its counsel’s brief, argues that the testimony of the Sral
brothers lacks credibility. The Respondent’s brief also cites
Emery Worldwide, 309 NLRB 185 (1992), for the proposition
that interrogation of employees is not unlawful per se, and ar-
gues that the purported interrogations were not coercive be-
cause the Sral brothers “never spoke with other employees
about these statements, and their employment ended when they
simply decided to quit and join the Union’s picket.”
In deciding whether Omielan’s questioning of Jaroslaw and
Marcin Sral violated the Act, I apply the Board’s standard set
forth in Rossmore House, 269 NLRB 1176, 1177 (1984), enfd.
sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985) (“whether under all the circumstances the interrogation
reasonably tends to restrain, coerce, or interfere with rights
guaranteed in the Act”). In Sproule Construction Co., 350
NLRB No. 65 fn. 2 (2007), the Board found questioning to be
coercive when it occurred in the following circumstances: the
applicants were seeking employment; the applicants sought to
conceal their union affiliation; the respondent offered no le-
gitimate explanation for the questioning; and, the questioning
occurred amidst other serious unfair labor practices.
Here, during the initial questioning, Jaroslaw Sral was apply-
ing for work. In both the initial and subsequent questioning,
the Sral brothers were attempting to conceal their salt status
with the Union, the Respondent offered no explanation for the
questioning, and the questioning occurred in the context of
other serious unfair labor practices found herein. In addition,
the interrogator, Omielan, is the owner of the Respondent, the
questioning was repeated, and during the course of one of the
interrogations and after the Srals denied a relationship with the
Union, Omielan expressed his opinion of the Union using an
obscenity. Under all these circumstances, the questioning of
the Sral brothers on March 16, 17, and 28,20 was coercive, and I
find that the Respondent violated Section 8(a)(1) by engaging
in coercive interrogation as alleged in the complaint.
B. Allegations Involving the March 23 Meeting
The complaint alleges that at a meeting the Respondent held
for employees on March 23, Bogdan Omielan illegally inter-
fered with Section 7 rights by instructing employees to call the
office and police if they saw union agents on jobsites, impliedly
threatened discharge if employees engaged in union activity,
and promulgated an overly broad rule prohibiting employees
from talking to union agents. I found that at the meeting Omie-
lan told the assembled employees that Probola and Kwiecien
belonged to the Union and he had fired them, that the employ-
ees had to watch out for “union guys,” that if they see Probola

20 The complaint alleged that the final interrogation occurred on
March 29. Based on the testimony of the Sral brothers, I find that it
occurred on March 28.
and Kwiecien on a jobsite they should call the police because
they’re not supposed to be there, and that the employees should
take lunch on the jobsite and shouldn’t go out to their cars be-
cause “union guys” might come up and talk to them.
The General Counsel, in its brief, maintains that telling the
assembled employees that Probola and Kwiecien belonged to
the Union and he fired them implies a threat to fire any em-
ployee so involved, that instructing employees to call the police
if Kwiecien and Probola appear on a jobsite interfered with
Section 7 rights, and that instructing employees to eat lunch on
the jobsite to avoid contact with the Union violated Section 7,
as employees have a Section 7 right to speak to union repre-
sentative on jobsites and during lunch periods. The Respon-
dent, in its brief, argues that the Sral brothers are not credible
witnesses so that there is no credible evidence that Omielan
made the allegedly violative statements at the March 23 meet-
ing. The Respondent impliedly argues in its brief that Omie-
lan’s general denial that there were ever any discussions with
the Sral brothers about the Union after they were hired, served
as a denial that he made the allegedly coercive statements to the
assembled employees during the March 23 meeting.21 Finally,
the Respondent maintains that the statements made by Izabela
Omielan and Barbara Kasper at the March 23 meeting legiti-
mately dealt with employee concerns in a noncoercive fashion
and did not violate the Act.
In analyzing actions alleged as 8(a)(1) violations, the
Board’s well-settled test is whether the employer engaged in
conduct which, it may reasonably be said, tends to interfere
with the free exercise of employee rights under the Act. Inter-
ference, restraint, and coercion does not turn on the employer’s
motive or on whether the coercion succeeded or failed. Ameri-
can Freightways Co., 124 NLRB 146, 147 (1959). Implied
threats of discharge because of union activity coerce employees
in the exercise of Section 7 rights. Kona 60 Minute Photo, 277
NLRB 867 (1985). Omielan’s statement at the March 23 meet-
ing connected the union membership of Kwiecien and Probola
to their discharge. Such statements, which connect union activ-
ity with discharge, imply a threat of discharge to other employ-
ees who engage in such conduct. Kona, supra at 868. Accord-
ingly, I conclude that the statement by Omielan violated Sec-
tion 8(a)(1) as alleged in the complaint.
It is well settled that Section 7 rights include the right to
speak to union representatives and to participate in union activ-
ity during nonworking time. Earthgrains Co., 351 NLRB 733
(2007). Telling employees to eat their lunches on the jobsite
and avoid going to their cars so as to avoid speaking to union
representatives clearly interferes with Section 7 rights, as does
instructing employees to call the police if they see Probola or
Kwiecien, whom he had identified as union affiliated, on the
jobsites. Accordingly, I conclude that Omielan’s statements to
employees at the March 23 meeting to that effect, violate Sec-
tion 8(a)(1) as alleged in the complaint.22

21 I reject this contention. The question was limited to conversations
with the Sral brothers.
22 Based on my finding of facts, I do not also conclude that Omielan,
at the March 23 meeting, imposed a rule prohibiting any employee
from speaking to a union agent as alleged in the complaint.
JERRY RYCE BUILDERS 1269
Finally, I reject the Respondent’s argument, proffered in its
brief, to the effect that because, assertedly, neither Izabela
Omielan nor Barbara Kasper made statements at the March 23
meeting that interfered or coerced employees in the exercise of
Section 7 rights or that they described Section 7 rights in an
arguably permissible fashion; therefore, the Respondent did not
violate the Act. Even assuming Izabela Omielan and Barbara
Kasper properly explained to the assembled employees their
rights to speak to union representatives, all of the employees
present knew that Bogdan Omielan, not Izabela Omielan or
Barbara Kasper, was the owner of the Respondent and the ulti-
mate boss. It is axiomatic that such words from the Respon-
dent’s highest-ranking manager have a greater impact on em-
ployees than do the more conciliatory words of the Respon-
dent’s secretary or the owner’s daughter. I also note that the
complaint does not allege that the words or actions of either
Kasper or Izabela Omielan on March 23 or any other time con-
stituted violations of the Act.
C. Refusal to Hire and Consider for Hire
The complaint alleges that on March 9, 2007, the Respon-
dent refused to hire and consider for hire job applicants
Luciano Padilla, Dwan Johnson, and Humberto Juarez. I found
that the Respondent placed a newspaper advertisement for
bricklayers and helpers on January, 3, that in March Omielan
repeatedly told the Sral brothers and Probola that he needed
more bricklayers, that union organizer Luciano Padilla and
union members Dwan Johnson and Humberto Juarez spoke to
Omielan about obtaining jobs on March 9 without success, that
the Respondent hired Jaroslaw and Marcin Sral about March
17, and that the Respondent hired two additional bricklayers in
June. I further found that Padilla, Johnson, and Juarez dis-
played their union status to Omielan by wearing various cloth-
ing with union logos, while the Sral brothers concealed their
union membership from Omielan. Finally, Omielan testified
that the reason he was able to employ the Sral brothers about 1
week after he told Padilla, Johnson, and Juarez that there was
no work was “because I needed one bricklayer and not the three
. . . .”
The Respondent’s counsel, in his brief, maintains that the
General Counsel has failed to establish that the Respondent had
job openings,23 or that animus was a motivating factor. The
Respondent further contends that one of the three union job
applicants, Johnson, had inferior job qualifications to the sub-
sequently-hired Jaroslaw Sral and, hence, Johnson’s “experi-
ence would not have qualified him for the position taken by
Jaroslaw. . . .” The General Counsel contends to the contrary.
The Board, under the allocation of burdens set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert denied 455 U.S. 989 (1992), analyzes refusal-
to-hire cases pursuant to a set of guidelines discussed in FES,
331 NLRB 9, 12 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). “To
establish a discriminatory refusal to hire, the General Counsel
must . . . first show the following . . . (1) that the respondent

23 Or that the Respondent had one job opening, not three. This ar-
gument implies that the Respondent could not hire all or any of the
three union job applicants because it had, assertedly, one opening, not
three.
was hiring, or had concrete plans to hire at the time of the al-
leged unlawful conduct; (2) that the applicants had experience
or training relevant to the announced or generally known re-
quirements of the position for hire, or in the alternative, that the
employer has not adhered uniformly to such requirements, or
that the requirements were themselves pretextual or were ap-
plied as a pretext for discrimination; and (3) that antiunion
animus contributed to the decision not to hire the applicants.”
If the General Counsel is successful in meeting his burden, the
Respondent must show that it would not have hired or consid-
ered the applicants even in the absence of their union activity or
affiliation.
I conclude that the General Counsel has met his initial
Wright Line burden under FES, and that the Respondent has
failed to demonstrate that it would not have hired Padilla, John-
son, and Juarez even in the absence of their union affiliation.
As to the Wright Line burden, I found that the Respondent had
placed help wanted advertisements in January, that it repeatedly
solicited its employees for help in finding bricklayers to hire,
and that it hired the Sral brothers shortly after Padilla, Johnson,
and Juarez unsuccessfully attempted to approach Omielan
about a job. Thus, the evidence is persuasive, and I conclude,
that the Respondent was hiring and had concrete plans to hire at
the time the three applicants approached by the Respondent. I
also found that the Respondent hired two additional bricklayers
in June.
I also conclude that Padilla, Johnson, and Juarez had experi-
ence relevant to the bricklayer position.24 Padilla is a journey-
man bricklayer with 7 years of experience, who completed a
union apprenticeship program. Juarez is a journeyman brick-
layer with about 9 years of experience, who has completed
4500 hours of apprentice training. Johnson has been a brick-
layer for over 3 years, and is enrolled in a union apprenticeship
program in which he has completed his classroom training and
2000 hours of on-the-job training.
The only detailed evidence in the record as to the Respon-
dent’s requirements for the bricklayer position is contained in
Respondent’s job description for the “bricklayer” position,
which states: “1 year of experience learning the brick mason
trade as a helper or apprentice. Or enter apprenticeship pro-
gram with our company.” Clearly, Padilla, Johnson, and Juarez
all met that criteria. While it may be true, as argued by the
Respondent, that Jaroslaw Sral possessed more experience than
Johnson, Sral was not an applicant for the position at the time
Padilla, Johnson, and Juarez attempted to secure positions with
the Respondent, and there is no evidence that Omielan inquired
into either Sral’s qualifications at the time they were hired,
other than union membership.
Finally, as to the General Counsel’s Wright Line burden, I
conclude that the Respondent repeatedly displayed animus
during the entire period discussed above. In addition to the
other unfair labor practices found herein, in the course of inter-
rogating Jaroslaw Sral, Omielan used a strong expletive in de-
scribing his view of the Union and told Sral that it was good

24 And certainly to the helper position that the Respondent hired
Marcin Sral to. Padilla and Johnson credibly testified that they would
accept any position offered by the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1270
that Sral did not belong to the Union. The striking difference in
the Respondent’s treatment of the union applicants seeking
work, as opposed to the Sral brothers’ treatment, is further evi-
dence of antiunion animus. See R. J. Corman Railroad Con-
struction, 349 NLRB 987, 989 (2007). Based on the findings,
I conclude that the General Counsel has demonstrated that anti-
union animus was a motivating factor in the Respondent’s deci-
sion not to hire or consider for hire Padilla, Johnson, and
Juarez.
I further conclude that the Respondent has failed to demon-
strate that it would not have hired the applicants even in the
absence of union activity or affiliation. Omielan testified that
he didn’t hire the three union applicants because he wanted one
bricklayer, not three. In its brief, the Respondent argues that
Jaroslaw Sral, who was later hired, had superior qualifications
than one of the three union applicants, Johnson. Neither argu-
ment is persuasive. Nothing in the record supports the idea that
the union applicants presented themselves as an all or nothing
proposition. Further, Marcin Sral, whom the Respondent also
hired, had far fewer qualifications than union applicant John-
son, and at the time that the three union applicants attempted to
apply for jobs, or that Jaroslaw and Marcin Sral was hired.
Within a week of hire, Marcin Sral was performing bricklayer
work. Omielan neither asked nor knew anything about any of
their qualifications. Inasmuch as the General Counsel has met
its burden under FES, supra, and the Respondent has failed to
meet its resultant burden, I conclude that the Respondent re-
fused to hire Padilla, Johnson, and Juarez in violation of Sec-
tion 8(a)(3) of the Act.
The Board, in FES, supra at 15, sets forth the following ele-
ments as the basis to decide refusal-to-consider allegations: “to
establish a discriminatory refusal to consider pursuant to
Wright Line, supra, the General Counsel bears the burden of
showing the following at the hearing on the merits: (1) that the
respondent excluded applicants from a hiring process; and (2)
that antiunion animus contributed to the decision not to con-
sider the applicants for employment. Once this is established,
the burden will shift to the respondent to show that it would not
have considered the applicants even in the absence of their
union activity or affiliation.”
Here, I conclude that the General Counsel has met its initial
burden, and that the Respondent has failed to meet its resultant
burden. Thus, Omielan brusquely dismissed the attempts of
Probola, Johnson, and Juarez to inquire about employment, and
denied their request for applications. Yet, during the same
approximate time period, Omielan was soliciting applicant
referrals from other employees, and shortly afterwards hired
two new employees. The General Counsel also established
Omielan’s antiunion animus, as discussed above. Further, as
discussed above, the Respondent has failed to demonstrate that
it would not have considered the applicants even in the absence
of their union activity or affiliation. Accordingly, I conclude
that the Respondent violated Section 8(a)(3) of the Act by re-
fusing to consider for hire Padilla, Johnson, and Juarez, as al-
leged in the complaint.
D. Alleged Discharges of Probola and Kwiecien
The complaint alleges that on March 22, the Respondent dis-
charged and/or constructively discharged Jack Probola and
Andrzej Kwiecien. The complaint further alleges that on the
same date the Respondent violated Section 8(a)(1) when Omie-
lan told employees (Probola and Kwiecien) that they were not
allowed on the jobsite or to work on the jobsite because of their
union membership and sympathies. The Respondent maintains
in its brief that Omielan’s and Podjasek’s testimony should be
credited over Kwiecien’s and Probola’s, to the effect that
Probola and Kwiecien chose to walk off the job after being told
they would not be given a pay raise.
As to the alleged discharges, I found as follows, based on my
assessment of witness credibility: that bricklayers Probola and
Kwiecien, both organizers for the Union, were hired by the
Respondent; that Probola started work on February 27 and
Kwiecien on March 5; that the Respondent was unaware of
their union relationship at the time of hire; that on March 22, on
the jobsite, Kwiecien handed Omielan a letter which stated that
he and Probola were requesting a pay raise to area standards
and that on their own time they intended to organize the re-
mainder of the Respondent’s employees; that upon reading the
letter, Omielan told Probola and Kwiecien that they wanted
more money than “the Union made,” and that he couldn’t give
them that kind of money; that Kwiecien asked Omielan if they
could still work and organize the Respondent on their own
time; that Omielan replied that he had a feeling that they were
from the Union, they were not supposed to be working on the
job, they didn’t belong there, and should just leave; and that
Probola and Kwiecien left the job, and have not worked for the
Respondent since.
The “test for determining whether an employer’s statements
constitute an unlawful discharge depends on whether they
would reasonably lead the employees to believe that they had
been discharged” and “the fact of discharge does not depend on
the use of formal words of firing. . . . It is sufficient if the
words or actions of the employer would lead a prudent person
to believe his tenure had been terminated.” Ridgeway Trucking
Co., 243 NLRB 1048, 1049 (1979), enfd. 622 F.2d 1222 (5th
Cir. 1980) (footnoted citations omitted). Here, crediting
Kwiecien and Probola, Omielan’s response to Kwiecien’s ques-
tion about staying and working, in which he links their union
membership to his instruction to leave the job, leads to the con-
clusion that he fired both Probola and Kwiecien even though he
did not use the words “discharged” or “fired.” While the Re-
spondent correctly asserts in its brief that if Podjasek and,
hence, Omielan were to be credited, then Kwiecien and Probola
walked off the job of their own volition, I, instead, credited
Probola and Kwiecien.
JERRY RYCE BUILDERS 1271
Applying the Wright Line test to the discharges, I, further,
conclude that Probola and Kwiecien were discharged because
of their relationship with the Union. Thus, both Probola and
Kwiecien were union organizers, at the time of discharge the
Respondent was aware that they maintained a relationship with
the Union, and Omielan possessed antiunion animus, as found
above. The Respondent presented no evidence that it would
have discharged Probola and Kwiecien even absent their union
activity. Finally, Omielan, himself, connected their union ac-
tivity to the discharges. Under these circumstances, I conclude
that the Respondent discharged both Kwiecien and Probola in
violation of Section 8(a)(3), as alleged in the complaint.
I further conclude that Omielan’s statement to Probola and
Kwiecien that they didn’t belong on the job and should leave
(because they belonged to the Union), is coercive and violates
Section 8(a)(1) as alleged in the complaint.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Sections 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Jack Probola and Andrzej Kwiecien on
March 22, 2007, and by refusing to hire or consider for hire
Luciano Padilla, Dwan Johnson, and Humberto Juarez on
March 9, 2007, the Respondent has been discriminating in re-
gard to the hire or tenure or terms and conditions of employ-
ment of its employees, thereby discouraging membership in a
labor organization in violation of Section 8(a)(3) and (1) of the
Act.
4. By the following actions, on the dates set forth below, the
Respondent has interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act, in violation of Section 8(a)(1) of the Act.
(a) On March 22, 2007, telling employees that they didn’t
belong on the job and should leave because of their union af-
filiation.
(b) On March 16, 17, and 28, coercively interrogating em-
ployees about their union membership.
(c) On March 23, telling employees that other employees
were discharged because of their union affiliation, thereby im-
plying that employees would be discharged if they supported or
joined the union.
(d) On March 23, telling employees to eat their lunches on
the jobsite and not go to their cars during lunch so as to avoid
contact with union representatives.
(e) On March 23, instructing employees to call the police if
they saw individuals associated with the union.
5. The unfair labor practices set out in paragraphs 3 and 4,
above, affect commerce within the meaning of Section 2(6) and
(7) of the Act.
6. The Respondent in no manner, other than that specifically
found herein, including any other manner alleged in the com-
plaint, has violated the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) and (3) of the
Act, as is set forth above, it will be ordered to cease and desist
therefrom and from any like or related conduct. Having found
that the Respondent discriminatorily discharged Jack Probola
and Andrzej Kwiecien, and discriminatorily refused to hire and
consider for hire Luciano Padilla, Dwan Johnson, and Hum-
berto Juarez, the Respondent must make them whole for its
unlawful conduct against them. As they are all union salts, the
duration of the backpay period shall be determined in accor-
dance with the evidentiary requirement set forth in Oil Capitol
Sheet Metal, 349 NLRB 1348 (2007). Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), and interest shall be computed in accordance with New
Horizons for the Retarded, 283 NLRB 1173 (1987). The Re-
spondent will also be ordered to offer reinstatement to Probola
and Kwiecien, and instatement to Padilla, Johnson, and Juarez.
Further, the Respondent will be ordered to remove from its files
any references to the unlawful discharges and refusals to hire or
consider for hire, and notify the employees that it has done so
and will not use their discharges or refusals to hire or consider
for hire against them in any way.
It will also be ordered that the Respondent post a remedial
notice.
On these findings and conclusions of law, and on the entire
record, I issue the following recommended25
ORDER
The Respondent, Jerry Ryce Builders, Inc., Illinois, Chicago,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that they didn’t belong on the job and
should leave because of their union affiliation.
(b) Telling employees that other employees who belonged to
a union had been discharged, thereby implying that any em-
ployees who joined a union or engaged in union activities
would also be discharged.
(c) Telling employees to stay on the jobsite during their
lunch breaks so as to avoid contact with union representatives.
(d) Telling employees to call the police if they observe indi-
viduals affiliated with a union on the jobsite.
(e) Coercively interrogating employees concerning their un-
ion membership, activities, or sympathies.
(f) Discharging employees because of their union member-
ship, activities, or sympathies and/or to discourage employees
in these activities.
(g) Refusing to hire, or consider for hire, individuals because
of their union membership, activities, or sympathies and/or to
discourage employees in these activities.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:

25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1272
(a) Within 14 days from the date of this Order, offer full re-
instatement to Jack Probola and Andrzej Kwiecien to their for-
mer jobs or, if those jobs no longer exist, offer them substan-
tially equivalent positions, without prejudice to their seniority
and other rights and privileges previously enjoyed.
(b) Within 14 days from the date of this Order, offer to
Luciano Padilla, Dwan Johnson, and Humberto Juarez em-
ployment in the jobs for which they applied or, if such jobs no
longer exist, in substantially equivalent positions, without
prejudice to their seniority or any other rights and privileges to
which they would have been entitled if they had not been dis-
criminated against.
(c) Make whole Jack Probola, Andrzej Kwiecien, Luciano
Padilla, Dwan Johnson, and Humberto Juarez for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them in the manner set forth in the remedy sec-
tion of this decision.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the discharges of Jack Probola and
Andrzej Kwiecien, and the refusal to hire and consider for hire
Luciano Padilla, Dwan Johnson, and Humberto Juarez, and
within 3 days thereafter notify them in writing that this has
been done, and that the discharges and refusals to hire or con-
sider for hire will not be used against them in any way.
(e) Preserve, and within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Re-
gional Director, all payroll records, Social Security payment
records, timecards, personnel records and reports, and all other
records, including electronic copy of the records if stored in
electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its
Chicago, Illinois office and jobsites copies of the attached no-
tice marked “Appendix.”26 Copies of the notice, on forms pro-
vided by the Regional Director for Region 13, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by other
materials. In the event that during the pendency of the proceed-
ings the Respondent has gone out of business or closed the
facility involved in this proceeding, the Respondent shall dupli-
cate and mail, at its own expense, copies of the notice to all
employees and former employees of the Respondent at any
time since March 1, 2007.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

26 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT tell employees that they don’t belong on the job
and should leave because of their union affiliation.
WE WILL NOT coercively interrogate employees about their
union membership, activities, or sympathies.
WE WILL NOT tell employees that other employees who be-
longed to a union had been discharged, or otherwise imply that
employees who join a union or engage in union activities would
be discharged.
WE WILL NOT tell employees to stay on the jobsite during
their lunchbreaks so as to avoid contact with union representa-
tives.
WE WILL NOT tell employees to call the police if they observe
individuals affiliated with a union on the jobsite.
WE WILL NOT discharge employees because of their union
membership, activities, or sympathies and/or to discourage
employees in these activities.
WE WILL NOT refuse to hire employee-applicants because of
their union membership, activities, or sympathies and/or to
discourage employees in these activities.
WE WILL NOT refuse to consider for hire employee-applicants
because of their union membership, activities, or sympathies
and/or to discourage employees in these activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer to Luciano Padilla, Dwan Johnson, and Humberto Juarez
employment in the jobs for which they applied or, if such jobs
no longer exist, in substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges to
which they would have been entitled if we had not discrimi-
nated against them.
WE WILL, within 14 days from the date of the Board’s Order,
offer full reinstatement to Jack Probola and Andrzej Kwiecien
to their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Luciano Padilla, Dwan Johnson, Humberto
Juarez, Jack Probola, and Andrzej Kwiecien whole for any loss
of earnings and other benefits suffered as a result of our dis-
JERRY RYCE BUILDERS 1273
crimination against them, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to our unlawful refusal to
consider Luciano Padilla, Dwan Johnson, and Humberto Juarez
for hire or to hire them, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that the re-
fusals to consider them for hire or to hire them will not be used
against them in any way.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to our unlawful discharges
of Jack Probola and Andrzej Kwiecien, and WE WILL, within 3
days thereafter, notify them in writing that this has been done
and that the discharges will not be used against them in any
way.
JERRY RYCE BUILDERS, INC.