Jerry Ryce Builders, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 19, 2007

13-CA-043917 (N.L.R.B. Nov. 19, 2007)

JD–72–07
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
JERRY RYCE BUILDERS, INC.
and Cases 13-CA-43917
13-CA-43918
ILLINOIS DISTRICT COUNCIL NO. 1,
INTERNATIONAL UNION OF BRICKLAYERS
AND ALLIED CRAFTWORKERS, AFL-CIO
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, alleges 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 constructively 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
affiliation. Further, the Respondent asserts that it either engaged in none of the actions alleged
as 8(a)(1) violations, or that certain 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 post-trial briefs. Based on the entire record, including my observation of the
demeanor of witnesses, and after considering the briefs filed by the Respondent, the General
Counsel, and the Union, I make the following
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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 Respondent 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 Illinois. I find, and it is admitted, that
the Respondent is, and has been at all times material hereto, an employer engaged in
commerce 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 meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices
The Respondent has operated as a nonunion masonry contractor 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 daughter, 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, utilizing 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 Respondent’s employees. Omielan asked Probola
about his experience, and Probola told him that he had over 10 years’ experience, and that he
was not looking for a job for the short term. 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

1 All dates herein reference the year 2007, unless otherwise noted.
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.
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pay that kind of money, but if Probola was good, Omielan could hire him at $25 per hour.3
Probola accepted the $25 offer. 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 understood
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 jobsite and began work for the
Respondent. At work on February 27, Omielan told Probola that he was going to need more
bricklayers 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 Respondent, or Omielan, had knowledge that either Probola or Kwiecien had a
relationship with the Union.6 Kwiecien credibly testified that he wanted to organize the
Respondent’s employees.

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 Omielan’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 conversation before Kwiecien
began working for the Respondent. Omielan testified that they spoke, but that he remembered
nothing of the conversation.
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 Foster 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 conversation 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 further
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 establishing prior
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According to Probola, and to the essentially similar testimony of Kwiecien, at about 8
a.m. on March 22, they approached 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 exceeding 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, Omielan 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 going
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 Chicago. 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.
_________________________
knowledge of Kwiecien’s union affiliation. When the Respondent’s counsel asked Omielan the
question the first time, Omielan 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 involvement with the Union based on what he had seen, that Omielan testified that at
the time he hired Kwiecien, he believed he was involved 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 affiliated 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
the effect that Omielan told him and Kwiecien that they were not supposed to be on the job
because they were union. In other words, Probola testified that Omielan told Kwiecien that
because he was union, he was not supposed to be on that job.
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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 overhearing the conversation.8 Podjasek has been employed by
the Respondent for about four years, first as a bricklayer, and then as a forklift operator.
Podjasek, on direct examination, after initially denying he knew Kwiecien, testified that he knew
Kwiecien because they both attended a company “safety” meeting. 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 testified, “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 Omielan told Probola and Kwiecien that he knew they were from the
Union.
I credit the testimony of Kwiecien, and the essentially similar testimony of Probola, as to
the conversation. Kwiecien and Probola displayed impressive testimonial demeanor and
appeared to be earnestly attempting to truthfully answer the questions 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 “preparing 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, Podjasek 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 remembered 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.

8 Podjasek testified in Polish, through an interpreter.
9 Also troubling in respect to Podjasek’s credibility, counsel for the General Counsel, on cross-
examination, asked Podjasek a straightforward question, as to whether, prior to testifying, he
had spoken with anybody concerning his testimony. Podjasek instead of directly answering 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
testifying. 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 conversation, whether
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Omielan was responsive to questions of all counsel and otherwise displayed appropriate
witness demeanor but, in the context 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 employees. Indeed, the Board has recognized that “a salt seeks
employment for the purpose of furthering a union’s objectives . . . .” Oil Capitol Sheet Metal,
349 NLRB No. 118, slip op. at 8 (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
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 organizer 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
apprenticeship program, and has completed the 3 months of required classroom training and
2000 of the required 4500 hours of actual on-the-job training. Juarez, a journeyman bricklayer,
_________________________
Podjasek was able to hear the conversation, and whether Podjasek’s testimony would help or
hurt his client. The Respondent’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.
10 The Respondent introduced an Illinois wage claim application completed by Kwiecien on
March 23 seeking redress for the Respondent’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 discharged 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 discussed with Padilla that
the Respondent was considered a target for organizing.
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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 Respondent
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.
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
superintendent. Padilla asked again for Omielan’s business card, and Omielan again refused.
Padilla, Johnson, and Juarez continued 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

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.
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 testified 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 another 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 investigation, 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 substantive 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
Continued
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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
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 applicants that there was no work?” Omielan answered as follows: “Because I needed
one bricklayer and not the three of - -, not three bricklayers.”
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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 asserted 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 conversation. Even if the scaffolding was 10 to 15 feet
off the ground, as testified to by Omielan, there is insufficient evidence that this would preclude
either the conversation, or the ability of the various witnesses to hear what was said.
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.
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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, because 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 jobsite, and again asked if he belonged to the Union. Sral
answered that he did not belong. Omielan responded that was very good “because the Union is
shit.” Later that week, Omielan 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 going to hold a meeting the following day.
On March 23, the Respondent held a meeting for its employees at its office, before work.
The Sral brothers, other workers, Bogdan Omielan, Izabela Omielan, and Barbara Kasper
attended 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 precautions 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 essentially 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 instructed the employees to read the brochure and to sign a paper confirming 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
meeting 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 employees that if they see
Continued
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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
_________________________
trespassers on a jobsite they should not let them in because it was a safety issue, and that if
they were interested in a 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 representatives, “and there will be no problems.” According to Izabela Omielan,
“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 displayed good recall, and were reasonably
consistent with their answers both on direct and cross-examination. As noted earlier, and
significantly, 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?” Finally, 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.
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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 “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 shit.” 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 coercive interrogation on each
of these occasions. The Respondent, 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 argues
that the purported interrogations were not coercive because 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 legitimate explanation for the questioning; and, the questioning
occurred amidst other serious unfair labor practices.
Here, during the initial questioning, Jaroslaw Sral was applying 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 interfered 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 Omielan told the
assembled employees that Probola and Kwiecien belonged to the Union and he had fired them,
that the employees had to watch out for “union guys,” that if they see Probola 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 because “union
guys” might come up and talk to them.

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.
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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
employee 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 representative on jobsites and during lunch periods. The Respondent,
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 meeting. The
Respondent impliedly argues in its brief that Omielan’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 legitimately 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. Interference, restraint, and coercion does not
turn on the employer’s motive or on whether the coercion succeeded or failed. American
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 meeting connected the union membership of
Kwiecien and Probola to their discharge. Such statements, which connect union activity with
discharge, imply a threat of discharge to other employees who engage in such conduct. Kona,
supra at 868. Accordingly, I conclude that the statement by Omielan violated Section 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 activity during nonworking time. Earthgrains Co., 351 NLRB No. 45
(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 Section 8(a)(1) as alleged in the
complaint.22
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 ultimate boss. It is axiomatic that such
words from the Respondent’s highest-ranking manager have a greater impact on employees

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.
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than do the more conciliatory words of the Respondent’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 constituted violations of the Act.
C. Refusal to Hire and Consider for Hire
The complaint alleges that on March 9, 2007, the Respondent 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 displayed their
union status to Omielan by wearing various clothing 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 subsequently-hired Jaroslaw Sral and, hence, Johnson’s “experience
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), enf. 310
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 was hiring, or had concrete plans to hire
at the time of the alleged unlawful conduct; (2) that the applicants had experience or training
relevant to the announced or generally known requirements 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 applied 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 considered 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,
Johnson, 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

23 Or that the Respondent had one job opening, not three. This argument implies that the
Respondent could not hire all or any of the three union job applicants because it had,
assertedly, one opening, not three.
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was hiring and had concrete plans to hire at the time the three applicants approached the
Respondent. I also found that the Respondent hired two additional bricklayers in June.
I also conclude that Padilla, Johnson, and Juarez had experience relevant to the
bricklayer position.24 Padilla is a journeyman bricklayer with 7 years of experience, who
completed a union apprenticeship program. Juarez is a journeyman bricklayer with about 9
years of experience, who has completed 4500 hours of apprentice training. Johnson has been
a bricklayer 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 Respondent’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 program 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 interrogating Jaroslaw Sral, Omielan used a
strong expletive in describing his view of the Union and told Sral that it was good 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 evidence of
antiunion animus. See R. J. Corman Railroad Construction, 349 NLRB No. 89, slip op. at 3
(2007). Based on the findings, I conclude that the General Counsel has demonstrated that
antiunion animus was a motivating factor in the Respondent’s decision not to hire or consider for
hire Padilla, Johnson, and Juarez.
I further conclude that the Respondent has failed to demonstrate 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 argument 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 Johnson, 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 refused to
hire Padilla, Johnson, and Juarez in violation of Section 8(a)(3) of the Act.
The Board, in FES, supra at 15, sets forth the following elements 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

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.
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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 consider 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 refusing to consider for hire Padilla,
Johnson, and Juarez, as alleged in the complaint.
D. Alleged Discharges of Probola and Kwiecien
The complaint alleges that on March 22, the Respondent discharged 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 Omielan 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 remainder
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.” Ridgway Trucking Co., 243 NLRB 1048, 1049 (1979)
(footnoted citations omitted; enf. 622 F.2d 1222 (5th Cir. 1980). Here, crediting Kwiecien and
Probola, Omielan’s response to Kwiecien’s question about staying and working, in which he
links their union membership to his instruction to leave the job, leads to the conclusion that he
fired both Probola and Kwiecien even though he did not use the words “discharged” or “fired.”
While the Respondent correctly asserts in its brief that if Podjasek and, hence, Omielan were to
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be credited, then Kwiecien and Probola walked off the job of their own volition, I, instead,
credited Probola and Kwiecien.
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
activity 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 regard to the hire or tenure or terms
and conditions of employment 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 employees 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 affiliation.
(b) On March 16, 17, and 28, coercively interrogating employees about their union
membership.
(c) On March 23, telling employees that other employees were discharged because of
their union affiliation, thereby implying 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.
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6. The Respondent in no manner, other than that specifically found herein, including any
other manner alleged in the complaint, has violated the Act.
THE REMEDY
Having found that the Respondent has engaged in certain unfair 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 Humberto 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 accordance with the evidentiary
requirement set forth in Oil Capitol Sheet Metal, 349 NLRB No. 118 (2007). Backpay shall be
computed 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
Respondent 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 employees 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 individuals affiliated with a
union on the jobsite.

25 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.
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(e) Coercively interrogating employees concerning their union membership, activities,
or sympathies.
(f) Discharging employees because of their union membership, 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 effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer full reinstatement to Jack Probola
and Andrzej Kwiecien to their former jobs or, if those jobs no longer exist, offer them
substantially 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 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 and privileges to which they would have been entitled if they had not been
discriminated 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
discrimination against them in the manner set forth in the remedy section 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 consider
for hire will not be used against them in any way.
(e) 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
Regional 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 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 immediately upon receipt and

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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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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 materials. In the event that
during the pendency of the proceedings the Respondent has gone out of business or closed the
facility involved in this proceeding, the Respondent shall duplicate 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.
Dated, Washington, D.C. November 19, 2007.
______________________
Mark D. Rubin
Administrative Law Judge
JD–72–07
Chicago, IL
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain with us on your behalf.
Act together with other employees for your benefit and protection.
Choose not to engage in any of these activities.
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 belonged 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 representatives.
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, restrain, or coerce employees in the
exercise of the rights guaranteed 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 discriminated
against them.
JD–72–07
Chicago, IL
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
substantially 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
discrimination 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 refusals 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.
(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.
The Rookery Building
209 S. LaSalle St., Suite 900,
Chicago, IL 60604
(312) 353-7570
Hours: 8:30 a.m. to 5:00 p.m.
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, 312-353-7170.