SHAMBAUGH & SON, L.P.

National Labor Relations Board - Administrative Judge Opinions

Sep 17, 2015

25-CA-141001 (N.L.R.B. Sep. 17, 2015)

JD–54–15
Fort Wayne, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SHAMBAUGH AND SON, L.P.
and Case 25–CA–141001
25–CA–145447
INTERNATIONAL ASSOCIATION OF
HEAT AND FROST INSULATORS AND
ALLIED WORKERS, LOCAL 41
Raifael Williams, Esq., for the General Counsel.
William T. Hopkins, Jr., Esq. (Barnes & Thornburg LLP),
of Fort Wayne, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
CHARLES J. MUHL, Administrative Law Judge. This case arises out of a salting campaign
conducted by the International Association of Heat and Frost Insulators and Allied Workers,
Local 41 (the Union) at Shambaugh and Son, L.P. (the Respondent). The General Counsel’s
complaint, which issued on March 31, 2015, is premised upon unfair labor practice charges and
an amended charge filed by the Union on November 17, 2014, and January 30, 2015. The
complaint alleges that the Respondent violated Section 8(a)(3) of the National Labor Relations
Act (the Act), by refusing to hire, or consider for hire, Union Business Manager Ryan Wiersema
since June 27, 2014, due to his union and protected, concerted activities. The complaint also
alleges that the Respondent violated Section 8(a)(1) of the Act on September 18, 2014, by
interrogating job applicants concerning their union membership, activities, and sympathies, as
well as by requiring job applicants to provide written evidence of their withdrawal from the
Union to receive consideration for employment. The Respondent denies that it violated the Act
as alleged.
I conducted a trial on the complaint on July 7 and 8, 2015, in Fort Wayne, Indiana.
Counsel for the parties filed post hearing briefs in support of their positions on August 12, 2015,
which I have considered.
JD–54–15
2
The only matter in dispute in this case is whether the Respondent’s decision not to hire
Wiersema was motivated by antiunion animus. The facts are intriguing, in light of the
Respondent’s asserted reason for not hiring Wiersema and the history between Wiersema and
Dean Sheedy, the Respondent’s project manager who made the decision. At the hearing, Sheedy
contended that he refused to hire Wiersema in June 2014 because of alleged misconduct that 5
Wiersema engaged in 7 years earlier, when the two worked together for a different employer.
Sheedy claimed that Wiersema pulled a knife on and threatened to gut another employee.
As discussed fully herein and irrespective of whether Wiersema actually made that threat,
I do not credit Sheedy’s testimony that he relied upon Wiersema’s alleged 2007 misconduct 10
when declining to hire him in June 2014. I therefore conclude that the Respondent’s asserted
reason for not hiring Wiersema is a pretext, sufficient to establish its antiunion animus. Because
the Respondent’s asserted reason is a pretext, the General Counsel has established that
Wiersema’s union activity contributed to the refusal to hire him and the Respondent is precluded
from establishing that it would not have hired Wiersema absent his union activity. 15
On the entire record, including my observation of the demeanor of witnesses, I make the
following findings of fact and conclusions of law.
FINDINGS OF FACT20
I. JURISDICTION
The Respondent is a mechanical contractor in the construction industry, operating a
facility in Fort Wayne, Indiana. In conducting its business operations in the last 12 months, the 25
Respondent purchased and received, at its Fort Wayne facility, goods valued in excess of
$50,000 directly from points outside the State of Indiana. Accordingly, and at all material times,
I find that the Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and is subject to the Board’s jurisdiction, as the Respondent
admits in its answer to the complaint. The Respondent also admits, and I find, that the Union is a30
labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent provides mechanical, electrical, plumbing, fire protection, and35
engineering and design services. It is owned by a larger company called EMCOR. William
Meyer is a senior vice president and Gary Perkey is the vice president of the mechanical
division.
In December 2012, the Respondent created a new insulation division within mechanical40
to perform the insulation of pipe, ductwork, heating, and cooling. The Respondent hired Dean
Sheedy as a project manager for that division. Included in Sheedy’s job duties is the
responsibility for hiring mechanical insulators to perform the insulation work. Since December
2012, the Respondent has employed between 7 and 10 mechanical insulators. Although much of
the Respondent’s overall workforce is unionized, the mechanical insulators are not represented 45
by a union.
JD–54–15
3
Sheedy and Ryan Wiersema knew one another long before June 2014.1 Prior to 2008,
Wiersema worked as a mechanical insulator for several different employers. In 2007, Sheedy
was employed as a project manager and supervised Wiersema at NEDRA Corporation, a
contractor which also performed mechanical insulation work. The Union involved here
represented NEDRA’s mechanical insulators, including Wiersema. On April 1, 2008, Wiersema 5
resigned his NEDRA job and began working as an organizer for the Union. However, Sheedy
and Wiersema remained in regular contact thereafter.
A. The Union’s Organizing Efforts at Shambaugh Prior to 2014
10
The Union began its attempts to organize the Respondent’s mechanical insulators in April
2013. At that time, Sheedy told Wiersema he was having problems finding skilled manpower for
the insulation division and felt the problem could be addressed with a unionized workforce.
In the summer of 2013, Dave Marvin, the then-business manager of the Union, met with 15
Meyer and Perkey to discuss a collective-bargaining agreement for the insulators. Marvin asked
Meyer why all his employees were unionized except the insulators and why Meyer would not
sign the Union’s contract. Meyer said he needed a labor package that would allow him to
compete with union and nonunion insulation companies. Marvin raised the possibility of crew
mixes, or changing the percentage of lower-cost apprentices permissible on a job, as well as of 20
union subsidies for job bids. Meyer expressed his concerns with unfunded pensions. He also
told Marvin that he wanted the Union to consider maintaining the employees on the
Respondent’s health and 401(k) plans.
On July 16, 2013, Wiersema sent an email to Meyer and Perkey apologizing for Marvin’s 25
behavior at the meeting and his traditionalist approach to bargaining. (GC Exh. 2.) He also
expressed hope that the parties could find a way to mutually benefit one another in the future.
Wiersema sent the email in response to hearing from Sheedy that the meeting had not gone well
and Marvin insisted that the Respondent accept the Union’s existing collective-bargaining
agreement with other insulation companies. 30
In September 2013, Meyer met with Wiersema and Tommy Williams, a regional
organizer for the Union. Meyer told them the unionized insulator market in Fort Wayne
appeared to be dying and was not competitive in the “bid room.” He noted that the unionized
NEDRA Corporation was going out of business. He stated that he did not think he could get his 35
boss to sign onto another collective-bargaining agreement.2 Williams and Wiersema expressed a
willingness to look at alternative approaches in a contract, and left the meeting by saying they
would see what they could come up with.
On October 2, 2013, Wiersema again sent an email to Meyer thanking him for meeting 40
and saying he looked forward to a future meeting where the Union could propose an agreement.

1 All dates hereinafter are in 2014, unless otherwise specified.
2 Wiersema testified that Meyer made this statement in the meeting. (Tr. 177.) Although Meyer
testified at the hearing about the meeting, he did not deny making the statement. (Tr. 270–274.) Thus,
Wiersema’s testimony as to this statement is uncontroverted.
JD–54–15
4
(R. Exh. 2.) However, the parties never met again and the Union never offered a contract
proposal.
On December 14, 2013, Wiersema succeeded Marvin as the Union’s business manager.
5
B. Wiersema’s Discussions with Sheedy About Employment with the Respondent
At some point late in 2013, Wiersema and Sheedy met at a restaurant. Wiersema vented
concerning his job with the Union and the two discussed the possibility of Wiersema pursuing
jobs with the Respondent. Sheedy told him that, if he saw something come up, he would let 10
Wiersema know.
On February 18, Sheedy called Wiersema and told him that EMCOR, the Respondent’s
owner, had just posted an opening for a project manager in one of their divisions. He asked
whether Wiersema would be interested in the job and offered to provide Wiersema with 15
additional information if he was interested. When Wiersema said he would take a look at it,
Sheedy described the job duties of the position, as well as the minimum experience and skills
EMCOR was looking for.3 (GC Exhs. 14 and 15.)
Later that same day, Sheedy and Wiersema exchanged text messages. Wiersema asked 20
Sheedy to email him the job posting. Sheedy eventually advised Wiersema that he pulled the job
up and it was an internal posting. He added that he “will inquire about it tho.” (GC Exh. 6.)
C. The Union’s Bannering of the Respondent Beginning in March 2014
25
About 2 weeks later on March 3, the Union began a bannering campaign against the
Respondent. At different points between March 3 and the first or second week of July, the
Union bannered at locations that included the Respondent’s fabrication shop and its
headquarters, both in Fort Wayne. The Union’s banner stated “Notice to the public: Shambaugh
& Son does not employ members of or have a contract with Local 41.” During the first couple of 30
weeks of bannering, Wiersema participated from 6 a.m. to 4 p.m. with a “Local 41” hat on.
Thereafter, he participated on and off for a few weeks.
At the hearing, Sheedy admitted that he knew Wiersema was part of the Union’s
bannering at the Respondent’s headquarters, which took place from June until the beginning of 35
July. (Tr. 46–48, 102–103.) Meyer also admitted to being generally aware of the Union’s
bannering in the spring of 2014. (Tr. 274–275.) In addition, Wiersema observed Meyer driving
through nearly every day while Wiersema was bannering at the Respondent’s headquarters.
Wiersema also saw Meyer and Perkey driving by on multiple occasions while he was bannering
at the Respondent’s fabrication shop. During this same timeframe, Wiersema spoke to certain of 40
the Respondent’s insulators about organizing and sought authorization card signatures. Meyer
admitted to knowing this, although he could not recall when he became aware. (Tr. 279.)

3 Wiersema recorded this phone conversation and the recording and transcript of the conversation
were entered into evidence at the hearing. The reference to “audio played” in the transcript was the audio
recording of this conversation. (Tr. 46.)
JD–54–15
5
Sheedy never again communicated with Wiersema after their February 18 text messages
and the beginning of the Union’s bannering on March 3.
D. Wiersema’s June 9 Application for Employment with Tradesmen International
5
From December 2012 until June, Sheedy did not utilize any formal procedure to hire
mechanical insulators and did not accept job applications from interested individuals. Rather,
Sheedy told current insulators that he had openings and relied on them to advise people they
knew through word-of-mouth. Sheedy would hire people where they had prior insulation
experience and were friends of a current employee. 10
The Respondent altered that approach in June, when it entered into a contract with
Tradesmen International, a temporary employment agency, to obtain mechanical insulators for
its projects. Sheedy remained the individual responsible for determining who would be hired.
The only criteria he gave Tradesmen for job applicants was that they needed at least some 15
experience with insulating, without mandating a specific number of years. Sheedy was seeking
to hire 3 to 4 mechanical insulators at that time.
On June 9, Wiersema searched the Tradesmen website and found a job posting for a
mechanical insulator apprentice in Fort Wayne. The posting did not indicate that the job would 20
be with Shambaugh. He filled out an application online, listing “Local 41” as his current
employer since January 2002 and Marvin as his supervisor. (R. Exh. 3.) He also indicated he
had 12 years of experience as an insulation installer. Wiersema listed his position with the
Union as “mechanical insulator” and his job duties as installing insulation materials for HVAC
systems, chilled water, domestic piping, duct, etc. He also stated his reason for leaving his last25
job was the lack of work in the Fort Wayne area.
On June 13, Wiersema interviewed with a Tradesmen representative. He ultimately was
advised he was hired and would start work in 1 to 2 weeks. He was not told which employer he
would be working with. On June 16, Wiersema emailed multiple forms of identification to30
Tradesmen that had been requested during his interview.4 (GC Exh. 11.)
After Wiersema submitted his application, Joey Tippman, a representative at Tradesmen,
called Sheedy on a date in June not specified in the record. Tippman advised Sheedy that one
person had put in an application for work, he was unemployed, and he had previous experience 35
in insulating. Tippman told Sheedy that the applicant was Wiersema. Sheedy advised Tippman
he did not want to hire Wiersema.5

4 At the hearing, Counsel for the General Counsel properly identified GC Exhibits 11 and 12 on
the record, but did not offer the exhibits into evidence, apparently through inadvertence. Neither party
addressed this in their post hearing briefs. As no grounds exist for excluding the exhibits, I hereby
receive them into evidence.
5 Sheedy testified specifically that he told Tippman that Wiersema was employed by the Union,
but he was not interested in Wiersema “for other reasons.” (Tr. 39.) It is understandable that Sheedy
would say Wiersema was employed by the Union, after Tippman stated Wiersema was unemployed.
However, I find Sheedy’s testimony thereafter contrived and unconvincing. It is implausible that Sheedy
would say he was not hiring Wiersema “for other reasons,” without then specifying to Tippman what
those reasons were. This is especially so if, as claimed, the justification for his refusal to hire Wiersema
JD–54–15
6
Tradesmen did not end up hiring Wiersema. Instead, on June 24, Tradesmen reposted the
mechanical insulator job opening online. (GC Exh. 12.) On June 29, Tradesmen hired Michael
Burdette as a temporary employee and Burdette went to work for the Respondent. (GC Exh. 4.)
Burdette had prior experience working as a mechanical insulator, but the record evidence does
not establish the number of years of experience he had. Burdette was the only employee 5
Tradesmen hired for the Respondent in June.
Tradesmen hired 5 additional temporary employees that were assigned to the Respondent
from August 3 to September 7. (GC Exhs. 4 and 13.) They included Brian Carmichael and
Kevin Vancamp on August 3; Keith Malott on August 24; Steven Roebuck on August 31; and 10
Tyler Thacker on September 7. When Sheedy approved these individuals for hire, he was aware
that they had at least some experience as mechanical insulators, but not the specific years of
experience possessed by Carmichael, Vancamp, Roebuck, or Thacker. He knew that Malott had
less than 5 years of experience.
15
In addition to Michael Burdette, the Respondent directly hired 4 permanent employees
from September 2 to October 27. (GC Exh. 5.) They included Jared Hill on September 15;
Mitchell Burdette on September 25; Andrew Krieg on October 27; and Jonathon Krieg on
October 30. Sheedy knew that Jonathon Krieg had some level of prior experience, but Mitchell
Burdette had none. He also was aware that Hill and Andrew Krieg had no experience, but an 20
existing employee vouched for those two individuals. On September 26, the Respondent also
converted Michael Burdette from a temporary to a permanent employee.
At the hearing, Wiersema testified that, had he been hired, he intended to work for
Tradesmen and Shambaugh for as long as he possibly could. (Tr. 124–125.) 25
E. Sheedy’s September Text Messages to Joe Koontz
On September 18, when Sheedy was in the midst of hiring additional mechanical
insulators, Wiersema was having lunch with Joe Koontz, a member of the Union who is 30
employed as an apprentice insulator for a different contractor. Koontz previously worked on a
few projects for the Respondent. Wiersema asked Koontz if he would text Sheedy and ask if
Sheedy would hire Koontz. Koontz agreed and the following text message exchange occurred,
with all of Koontz’s statements provided to him by Wiersema:
35
Koontz: Hey do you have work
Sheedy: Lots. Who is this
Koontz: Little joe
Sheedy: I thought u were still in the union
Koontz: I wasn’t able to get back in40

was that Wiersema previously had threatened another employee. I further note that neither Tippman nor
any other Tradesmen representative testified at the hearing, a curious absence. Thus, Sheedy’s testimony
is uncorroborated. Accordingly, I do not credit Sheedy’s testimony that he told Tippman nothing more
than he was not hiring Wiersema “for other reasons.”
JD–54–15
7
Sheedy: I thought u were back in the last time we talked .. I
had also herd (sic) u were
Koontz: Did not work out. They said I had to (sic) many
points from before. Missed one day and got kicked
out. So you got anything for me5
Sheedy: What does your dad think of it
Koontz: He don’t care he’s a road dog now
Sheedy: Let me talk with my boss .. I will get back with u
Koontz: Thanks dean
Sheedy: No problem .. Do u have papers saying u were 10
expelled from the union ?
Koontz: I haven’t got it in the mail yet
(Jt. Exh. 1.) Thereafter on September 22, Sheedy texted Koontz and told him he could put
Koontz to work the next day. 15
F. The Incident Involving Wiersema at NEDRA in 2007
At the hearing, Sheedy testified that he did not hire Wiersema through Tradesmen in June
2014, due to an incident which occurred back in 2007 when both he and Wiersema were working 20
for NEDRA Corporation on a jobsite for Concordia Seminary. (Tr. 39.) Sheedy alleged that
Wiersema pulled a knife on Shane Shepherd, a Shambaugh employee, and threatened to gut him.
Witness testimony starkly conflicted on whether Wiersema actually did so, what happened in the
aftermath of this incident, and when the incident occurred.
25
1. Wiersema’s statement to Shepherd
As to what happened on the Concordia Seminary jobsite, Wiersema testified that he was
working in a mechanical room with NEDRA coworker Gary Stanton. (Tr. 132–137.) Also
present were Shambaugh employees Shepherd and Cody Love. Without prompting and without 30
knowing that Wiersema’s wife was having health problems, Shepherd asked Wiersema “how’s
your wife and my kids?” and told Wiersema he would be over later to have sex with her.
Wiersema responded, “say another word and I’m going to knock your teeth down your throat.”
(Tr. 135–136.)
35
Shepherd’s testimony differed regarding Wiersema’s actions in response to Shepherd’s
incendiary comment. (Tr. 294–298.) Shepherd stated that he and Cody Love walked into the
mechanical room as Wiersema was sharpening a work knife approximately 6 to 7 inches in
length. Shepherd agreed that he asked Wiersema how his wife and Shepherd’s kids were doing,
but testified that Wiersema responded by pointing the knife at Shepherd and saying he should 40
fucking gut him. Wiersema denied doing so. (Tr. 136.)
Stanton corroborated Wiersema’s account that Shepherd asked Wiersema if he knew who
the father of his kids was and Wiersema responded by saying he was going to punch Shepherd’s
teeth down his throat. (Tr. 62.) He also denied that Wiersema pulled out a knife and showed it 45
to Shepherd and denied that Wiersema told Shepherd he was going to gut him. (Tr. 63, 66.) In
JD–54–15
8
contrast, Cody Love testified briefly and corroborated Shepherd’s account in most respects,
including that Wiersema threatened to gut Shepherd. (Tr. 287–292.)
2. The aftermath of the Wiersema-Shepherd incident
5
Witness testimony also conflicted concerning whether Sheedy permitted Wiersema to
remain on the Concordia Seminary project after the incident with Shepherd.
Wiersema testified he informed Sheedy of the incident later that same day when Sheedy
came out to the jobsite. (Tr. 160–161.) Wiersema stated that Sheedy laughed it off and told 10
Wiersema either that he was surprised Wiersema did not hit Shepherd or that Sheedy himself
would have hit Shepherd if he were Wiersema. Wiersema also testified that he remained on the
Concordia Seminary jobsite for months thereafter, until the end of September. (Tr. 137–138.)
Sheedy testified that Ed Love, Shambaugh’s general foreman on the jobsite and Cody 15
Love’s father, told him that Cody Love reported Wiersema had pulled a knife on Shepherd and
threatened to gut him. Ed Love told Sheedy that either Wiersema had to be removed from the
project or NEDRA would be removed from the project. (Tr. 39–40.) Sheedy stated that he then
informed Wiersema that he was being removed from the Concordia Seminary project and
removed him the same day. (Tr. 41–42, 238–239, 241.) 20
Stanton corroborated Wiersema’s testimony that Sheedy did not remove him from the
Concordia Seminary jobsite following this incident. (Tr. 63–64.) In contrast, Ed Love testified
that, after learning of Wiersema’s threat, Ed Love talked to Sheedy the same day and told him he
wanted Wiersema off the project. He also stated that Sheedy removed Wiersema the same day. 25
(Tr. 301–302.) Cody Love stated that Wiersema was removed from the project, either the same
day or the next day. (Tr. 288–289, 291–292.)
The one fact the parties do not dispute about the aftermath of the incident is that Sheedy
did not discharge Wiersema for the alleged threat. Wiersema continued to work for NEDRA 30
from months until April 1, 2008.
3. The timing of the Wiersema-Shepherd incident
The question of when the confrontation between Wiersema and Shepherd occurred is 35
critical to determining whether Wiersema remained on the Concordia Seminary project after the
incident, because Wiersema’s timekeeping records from NEDRA establish definitively that he
worked on that project until September 21, 2007. (R. Exh. 5.) However, the record does not
contain any documentary evidence setting forth the date of the incident.
40
In addition, and as would be expected for an event which occurred some 7 years ago,
witnesses at the hearing struggled to pinpoint the exact timing of the confrontation. Wiersema
stated it occurred in the late spring or early summer of 2007. (Tr. 133, 138.) Stanton testified it
likely occurred in the spring or summer of 2007, indicating that it was getting warm out or close
to it. (Tr. 61.) Shepherd put the timing of this incident as late July or early August. (Tr. 298.) 45
JD–54–15
9
Sheedy also initially testified that the incident occurred in the spring or summer of 2007.
(Tr. 40.) He previously testified under oath in a different legal proceeding that the incident
occurred in the summer of 2007. (Tr. 244–246.) However, on the second day of the hearing in
this case when he was recalled, Sheedy changed his testimony and stated the incident occurred
on September 21, 2007. (Tr. 236-238.) 5
NEDRA’s invoices to the Respondent for the Concordia Seminary project establish that
NEDRA worked on the project through December 2007 and again in March 2008 before
Wiersema’s resignation. (R. Exh. 10.) However, that does not necessarily mean Wiersema was
pulled off the project early, because the insulators finished their part of the job before the end of 10
NEDRA’s work. (Tr. 291–292.) In addition, a work order amongst the NEDRA invoices
indicates that Wiersema returned to the project and worked for 8 hours on March 5, 2008. (R.
Exh. 10, p. 23.)
4. Credibility resolution15
As the above description makes clear, the credibility resolution regarding what Wiersema
said to Shepherd at Concordia Seminary and whether Wiersema remained on the job thereafter is
a difficult one, with multiple witnesses on both sides and inconclusive documentary evidence.
Moreover, none of the witnesses displayed telltale signs in their demeanors that would call into20
question the believability of their testimony in this regard.
Ultimately, I conclude that the exact statement Wiersema made is irrelevant to the
outcome of this case. However, in the event a credibility determination was required, I find that
Wiersema did not threaten to gut Shepherd while holding a knife and remained working on the 25
Concordia Seminary jobsite after the incident.
What is most apparent from the witness testimony is that Wiersema had the most vivid,
detailed recall of what occurred, including everything he and Shepherd said to one another and
other specifics concerning where Wiersema was and what he was working on at the time. I find 30
the specificity Wiersema provided indicative of reliable, credible testimony.
In contrast, the testimony of Shepherd and Cody Love was sparse and consisted of
nothing more than the alleged threat by Wiersema to gut Shepherd, absent any further details.
Shepherd also used qualifiers such as “basically,” “that’s about the gist of it,” and “I’m pretty 35
sure.” (Tr. 295–296.) Cody Love peppered his testimony with generalities such as “they were
going back and forth,” then they “were having words,” and finally that Shepherd “said something
to him.” (Tr. 288.) These factors detract from the believability of their testimony.
As to the timing of this incident, witness testimony was consistent that the incident 40
occurred in either the spring or summer of 2007. That means Wiersema remained on the job
after the incident, because he did not leave until September 21, 2007. The only witness who
stated that the incident occurred on that date was Sheedy. His claim conflicted with what he
stated on the first day of the hearing, as well as what he previously stated under oath in a
different proceeding. His contention that the incident occurred on September 21 came only 45
following his review of Wiersema’s timekeeping records from NEDRA, which the Respondent
had subpoenaed. (Tr. 238.) Accordingly, I do not credit Sheedy’s testimony.
JD–54–15
10
While the Respondent makes much of the fact that September 21 fell into the technical
definition of summer in 2007, I conclude it is doubtful, as a matter of logic, that Sheedy, or any
other witness, would recall and testify that the incident occurred in the summer, much less the
early spring, had it happened on September 21.6 I also note that the Respondent’s counsel, on
direct examination of Shepherd, Ed Love, and Cody Love, did not ask any of the three witnesses 5
an open ended question concerning the timing of the incident, instead directing them to 2007 or
the summer of 2007. (Tr. 288, 295, 300.)
Finally, Wiersema’s return to the project in March 2008 is inconsistent with the claim
that he was permanently removed on September 21, 2007. 10
For all these reasons, I credit Wiersema’s testimony regarding what he said to Shepherd,
as well as that he remained working on the Concordia Seminary job thereafter.7
ANALYSIS15
I. THE 8(A)(3) SALTING ALLEGATIONS
In FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), the Board set forth its
framework for analyzing refusal to hire allegations. Pursuant to that framework, the General 20
Counsel must, under the allocation of burdens set forth in Wright Line, 251 NLRB 1083, enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), first show that: (1) the
Respondent was hiring or had concrete plans to hire; (2) applicants had the experience or training
relevant to the announced or generally known requirements of the positions for hire; and (3)
antiunion animus contributed to the decision not to hire the applicants. If the General Counsel 25
makes this initial showing, the burden shifts to the Respondent to demonstrate that it would not
have hired the applicants even in the absence of their union activity.
Subsequently, in Toering Elec. Co., 351 NLRB 225 (2007), the Board held that, before an
employer’s motivation for a refusal to hire can be considered, the General Counsel must 30
establish that the job applicant was “genuinely interested in seeking to establish an employment
relationship” in order to be considered a Section 2(3) employee entitled to the Act’s protections.
As yet, the Board has not made explicitly clear what the General Counsel must show to satisfy
this burden.
35
With respect to a refusal to consider for hire allegation, the General Counsel bears the
burden of showing that: (1) the Respondent excluded applicants from the hiring process, and (2)
antiunion animus contributed to the decision not to consider the applicants for employment.

6 I take judicial notice of the fact that the autumnal equinox, or first day of fall, in 2007 occurred
on September 23. Earth’s Seasons, U.S. NAVAL OBSERVATORY, NAVAL OCEANOGRAPHY PORTAL,
http://www.usno.navy.mil/USNO/astronomical-applications/data-services/earth-
seasons/?searchterm=solstices (last visited Aug. 25, 2015).
7 In making this determination, I do not rely on the testimony of NEDRA owner Michael Cox.
(Tr. 141-157.) Although Cox stated he was unaware of Wiersema being removed from the Concordia
Seminary jobsite and should have been told if this happened, he also testified that he spent 60 to 70
percent of his work time at a different, concurrent project in Lima, Ohio, and was not always brought up
to date on the day-to-day operations at Concordia Seminary. (Tr. 141, 145–146.)
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11
Where this showing is made, the burden shifts to the Respondent to establish that it would not
have considered the applicants even in the absence of their union activity or affiliation.
As a preliminary matter, the Respondent does not contest, and the record evidence
supports, that Wiersema is a Section 2(3) employee entitled to the Act’s protections. Wiersema 5
testified without contradiction that he intended to work for Tradesmen/Shambaugh as long as
possible, and his job application to Tradesmen was entered into evidence at the hearing. (Tr.
124–125; R. Exh. 3.) The Respondent presented no evidence calling into doubt that Wiersema’s
interest in going to work for Tradesmen/Shambaugh was genuine.
10
In its answer to the complaint, the Respondent also admits that, at certain times since
June 2014, it had been hiring or had plans to hire, as well as that it refused to consider for hire or
to hire Wiersema. The record evidence confirms this as well. The Respondent hired 10
mechanical insulators, either directly or through Tradesmen, from June 29 to October 27.
Sheedy refused to hire Wiersema in June prior to hiring Burdette and thereafter refused to 15
consider him when hiring 9 additional mechanical insulators.
Thus, the only issue in dispute in this case is whether the Respondent’s adverse actions
were motivated by antiunion animus. The Respondent asserts that it did not consider or hire
Wiersema because of the threat he made to Shepherd in the summer of 2007. The General 20
Counsel argues that Wiersema did not engage in that conduct and thus the Respondent’s asserted
reason for refusing to hire Wiersema is pretextual. If the Respondent’s reason is pretextual, the
General Counsel has satisfied his FES/Wright Line burden and the Respondent fails by definition
to show that it would have taken the same action for that reason, absent the protected conduct.
Golden State Foods Corp., 340 NLRB 382, 385 (2003), citing to Limestone Apparel Corp., 255 25
NLRB 722 (1981).
Both parties frame this case as being decided by my credibility determination concerning
the NEDRA incident in the summer of 2007. I agree that credibility controls here, but not
concerning that incident. Even assuming for the sake of argument that Wiersema did, in fact, 30
pull a knife and threaten to gut Shepherd, I conclude that the Respondent did not rely on this
reason when refusing to hire Wiersema in June 2014.
I base this conclusion, in part, on the lack of credibility that Sheedy displayed when
testifying about the events in late 2013 and 2014. In my view, the most important piece of 35
testimony Sheedy provided came early on the first day of the hearing. Counsel for the General
Counsel asked Sheedy whether he told Wiersema about the project manager job posting at
EMCOR in February 2014, a critical component to the General Counsel’s case. Sheedy
emphatically denied that he did so in three, successive questions. (Tr. 43–44.) However,
unbeknownst to Sheedy, Wiersema had recorded the phone conversation he had with Sheedy,40
where Sheedy had done exactly that. Once counsel noted on the record that he intended to
impeach Sheedy’s denial with the recording, Sheedy interrupted that discussion, without any
question posed, and erroneously claimed he had just said “I don’t recall.” (Tr. 44.)
Thereafter, I observed a significant shift in Sheedy’s testimony. Whereas previously he 45
had been forthright and direct in responding to questions, Sheedy subsequently retreated and
instead equivocated in his testimony following this exchange. He repeatedly answered questions
JD–54–15
12
by stating he did not recall or by qualifying his responses with phrases such as “I may have,” “I
believe,” “possibly,” and “something to the effect of.” This included when he refused to confirm
that he also had sent text messages to Wiersema concerning the EMCOR job posting. (Tr. 50.)
It also included his response concerning whether he had told Wiersema, at a restaurant prior to
the recorded phone conversation, that he would let Wiersema know if the Respondent had any 5
job openings. (Tr. 239–240.)
The obvious dishonesty in Sheedy’s initial denial to a key question—whether he had
advised Wiersema of a job opening with the Respondent’s parent company, despite claiming that
Wiersema was violent and unfit for employment—coupled with his hedging of responses 10
thereafter, calls into question the credibility of his entire testimony.
The conclusion that Sheedy did not rely on the Concordia Seminary incident when
refusing to hire Wiersema is further supported by established and admitted facts, reasonable
inferences from the record as a whole, and the inherent probability of Sheedy’s claim. Daikichi 15
Sushi, 335 NLRB 622, 623 (2001). The Respondent forcefully argues that Wiersema’s act of
violence in the workplace at NEDRA precluded him from employment. Yet, the parties do not
dispute that Sheedy did not discharge Wiersema after the alleged incident occurred. Irrespective
of whether or not he was moved to another jobsite, Wiersema continued to work for NEDRA for
at least another 6 months. An incident which did not warrant Wiersema’s termination when it 20
occurred cannot be a credible ban to his hiring some 7 years later.
Furthermore, had Wiersema’s prior conduct excluded him from employment with the
Respondent, I find it improbable that Sheedy would repeatedly express his willingness to help
Wiersema get a job there. In late 2013, Sheedy told Wiersema he would let him know if 25
Shambaugh had any job openings. Then shortly thereafter in February 2014, Sheedy called
Wiersema to let him know of a specific job opening at EMCOR. This conduct cannot be
reconciled with Sheedy’s claim that he could not employ Wiersema due to his prior threat.
The Respondent attempts to justify Sheedy’s inconsistent conduct by arguing that 30
Wiersema’s potential employment with EMCOR differs from his potential employment with
Shambaugh, because Ed and Cody Love (but not Shepherd) still worked in the Respondent’s
insulation division at the time and the Respondent maintains an antiviolence policy. (R. Exh. 8.)
I do not agree. If Sheedy truly were concerned that Wiersema would become violent on the job
again, that concern is not alleviated in the slightest by the fact that his potential coworkers at 35
EMCOR would be unaware he previously pulled a knife on Shepherd or that EMCOR may not
have a formal antiviolence policy.
The Respondent also suggests that Wiersema, then unsatisfied with his employment at
the Union, was hounding Sheedy about job openings. If this was the case, Sheedy simply could 40
have played along, then not advised Wiersema of any openings as they became available.
Instead, Sheedy picked up the phone and let Wiersema know of the EMCOR opening the same
day it was posted.
Finally, the sequence of events between when Sheedy informed Wiersema of the45
EMCOR job opening in February 2014 and Sheedy’s refusal to hire Wiersema in June 2014 is
eye opening. The only intervening events during this time period were Wiersema’s participation
JD–54–15
13
in bannering from March to July 2014 at the Respondent’s fabrication shop and headquarters, as
well as his solicitation of signatures from the Respondent’s insulators on authorization cards.
The Respondent was aware of these activities. Prior to the start of the bannering, Sheedy and
Wiersema had remained in regular contact and, just a couple of weeks earlier, Sheedy had
advised Wiersema of the EMCOR job opening. However, Sheedy ceased communicating with 5
Wiersema after the bannering began. Only 4 months after suggesting he try to go to work for
EMCOR, Sheedy then refused to hire Wiersema in June 2014 while bannering continued.

For all these reasons, I do not credit Sheedy’s testimony that he refused to hire Wiersema
because of the 2007 incident at NEDRA. I find the Respondent’s asserted reason for not 10
considering Wiersema for hire and not hiring Wiersema to be pretextual and thus sufficient to
demonstrate the Respondent’s antiunion animus. Accordingly, the General Counsel has satisfied
his FES/Wright Line burden and the Respondent cannot meet its shifting burden. The
Respondent’s refusal to hire Wiersema and refusal to consider Wiersema for hire violate
Section 8(a)(3).8 15
II. THE 8(A)(1) INTERROGATION ALLEGATIONS
An unlawful interrogation is one which reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act, under the totality of the circumstances. Rossmore House, 269 20
NLRB 1176, 1178 fn. 20 (1984), affd. sub nom Hotel & Restaurant Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). The test is an objective one that does not rely on the
subjective aspect of whether the employee was, in fact, intimidated. Multi-Ad Services, 331
NLRB 1226, 1227–1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). The questioning of job
applicants concerning their union membership or sympathies long has constituted an unlawful 25
interrogation. See, e.g., Facchina Construction Co., Inc., 343 NLRB 886, 886 (2004); Zarcon,
Inc., 340 NLRB 1222, 1222 (2003). The Board recognizes that, under the totality of the
circumstances test, an applicant may understandably fear that any answer he might give to
questions about union sentiments posed in a job interview may well affect job prospects. Active
Transportation, 296 NLRB 431, 431 fn. 3 (1989). 30
In this case, the General Counsel’s complaint alleges two violations of Section 8(a)(1),
premised on Sheedy’s text messages to Koontz on September 18. During that exchange, Sheedy
twice asked Koontz if he was still in the Union, following Koontz’s inquiry about working for
the Respondent. After Koontz repeatedly denied being in the Union, Sheedy then asked Koontz 35

8 I likewise reject the Respondent’s argument that its history of being a pro-union employer
prevents a finding of animus. This argument is premised, in part, on the Respondent having several
collective bargaining agreements with other unions. (Tr. 253–255.) However, the fact that an employer
has some union employees does not prevent it from possessing animus against the possibility of having
more unionized employees. E & L Transport Co., 315 NLRB 303, 308 (1994). The argument also is
based on what Meyer described as his pro-union activities, including his support of common (or
prevailing) wage settings in Indiana, his opposition to the Indiana right-to-work law, and his membership
in a building trades and union cooperative designed to develop relationships between contractors and
unions. (Tr. 255–263.) This history does not foreclose a finding of animus as to the narrowly tailored
question of the Respondent’s hiring practices when it was directly faced with Union bannering and the
beginnings of an active organizing campaign. J.E. Merit Constructors, 302 NLRB 301, 304 (1991).
JD–54–15
14
for papers confirming he had been expelled from the Union. His inquiries sought to confirm that
Koontz was not a member of the Union and had nothing to do with Koontz’s ability, skill,
productivity, and reliability as an employee. Sheedy was the Respondent’s supervisor in charge
of hiring insulators and his conduct was not isolated, as it came in close proximity to his
unlawful refusal to hire Wiersema. Thus, the questions constitute an unlawful interrogation. 5
The Respondent argues that Sheedy’s statements did not violate the Act, because Sheedy
ultimately offered Koontz a job 4 days later. However, questioning a job applicant about his
union membership is inherently coercive and unlawful, even when the applicant is hired. M.J.
Mechanical Services, Inc., 324 NLRB 812, 812–813 (1997). 10
The Respondent also suggested at the hearing that Sheedy was motivated to ask Koontz
these questions, because the Union previously had sued two members who went to work for a
nonunion contractor. (Tr. 242–244; R. Exhs. 6 and 7.) Of course, Sheedy made no mention of
this motivation in his texts with Koontz. In any event, the Board specifically rejected this 15
defense in M.J. Mechanical, supra. Such questions, standing alone, do not serve as a reminder
that the applicant could be fined or disciplined because he was employed by a nonunion
employer. Moreover, facing union discipline is the applicant’s, not the prospective employer’s,
concern.
20
I likewise find no merit to the Respondent’s contention that Sheedy’s questioning was
lawful, because Koontz did not write his texts and had no intention of going to work for the
Respondent. Certainly Koontz could not have felt threatened about his job prospects, since he
did not intend to go to work for the Respondent. Nonetheless, Sheedy’s statements must be
evaluated objectively to determine if they reasonably tend to coerce a job applicant, not 25
subjectively based upon Koontz’s reaction. No question exists that Sheedy’s questions are
objectively coercive.
Under the totality of the circumstances, Sheedy’s text messages to Koontz constituted
unlawful interrogations and violated Section 8(a)(1) as alleged in the complaint. 30
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.35
2. The International Association of Heat and Frost Insulators and Allied Workers, Local
41, is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) by the following conduct:40
JD–54–15
15
(a) On September 18, 2014, interrogating applicants for employment about their
union membership, activities, and sympathies; and
(b) On September 18, 2014, requiring applicants for employment to provide
written evidence of their withdrawal from the Union in order to receive 5
consideration for employment.
4. The Respondent has violated Section 8(a)(3) and (1) of the Act by refusing to hire
Wiersema on about June 24, 2014, and thereafter refusing to consider Wiersema for
hire.10
5. The above unfair labor practices affect commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
REMEDY15
Having found that the Respondent engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to effectuate
the policies of the Act. In particular, I shall order the Respondent to offer Ryan Wiersema
instatement to the position for which he applied or, if that position no longer exists, to a 20
substantially equivalent position, without prejudice to his seniority or any other rights or
privileges he would have enjoyed absent the discrimination against him. Further, I shall order
the Respondent to make Wiersema whole for any loss of earnings and other benefits suffered for
the period Wiersema would have worked but for the unlawful discrimination against him. I also
shall order the Respondent to remove from its files any references to the unlawful refusal to hire 25
Wiersema or consider him for hire and, within 3 days thereafter, notify him in writing that this
has been done and that this unlawful conduct will not be used against him in any way.
The duration of the backpay period shall be determined in accordance with Oil Capitol
Sheet Metal, Inc., 349 NLRB 1348 (2007), pet. for review dismissed 561 F.3d 497 (D.C. Cir. 30
2009). Backpay shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). In addition, the
Respondent must compensate Wiersema for the adverse tax consequences, if any, of receiving a
lump-sum backpay award and file a report with the Social Security Administration allocating the 35
backpay award to appropriate calendar quarters. Don Chavas, LLC d/b/a Tortillas Don Chavas,
361 NLRB No. 10 (2014). Although this order provides for instatement, the instatement award
is subject to defeasance if, at the compliance stage, the General Counsel fails to carry his burden
of establishing that the discriminatee would still be employed if he had not been a victim of
discrimination. Oil Capitol Sheet Metal, 349 NLRB at 1354.940

9 The General Counsel’s complaint sought a requirement, as part of the remedy, that Wiersema
be reimbursed for search for work and work-related expenses, without regard to whether interim earnings
are in excess of these expenses. Under extant Board law, those expenses are considered an offset to
interim earnings. In this case and others, the General Counsel is seeking a change in Board law. Such a
change must come from the Board, not an administrative law judge. The Board has yet to resolve this
issue. See Katch Kan USA, LLC, 362 NLRB No. 162, slip op. at 1 fn. 2 (2015). Accordingly, I decline to
include the requested remedy in my recommended order.
JD–54–15
16
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended10
ORDER5
The Respondent, Shambaugh and Son, L.P., Fort Wayne, Indiana, its officers, agents,
successors, and assigns, shall
1. Cease and desist from10
(a) Coercively interrogating applicants for employment about their union
membership, activities, and sympathies.
(b) Requiring applicants for employment to provide written evidence of their 15
withdrawal from the Union in order to receive consideration for employment.
(c) Refusing to hire, or to consider for hire, applicants for employment because of
their union or other protected, concerted activities.
20
(d) 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.25
(a) Within 14 days from the date of this Order, offer Ryan Wiersema employment
in the position in which he would have been hired in the absence of the
discrimination against him or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or 30
privileges he would have enjoyed.
(b) Make Wiersema whole for any loss of earnings and other benefits suffered for
the period where Wiersema would have worked but for the unlawful
discrimination against him, in the manner set forth in the remedy section of 35
this decision.
(c) Compensate Wiersema for the adverse tax consequences, if any, of receiving a
lump sum backpay award, and file a report with the Social Security
Administration allocating the backpay award to the appropriate calendar 40
quarters.

10 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.
(d) Within 14 days from the date of this Order, remove from its files any
references to the
and, within 3 days thereafter,
that this unlawful conduct
5
(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 Board or its agents, all payroll records, social
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic 10
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 facility in
Indiana, copies of the attached notice marked “Appendix.”15
notice, on forms provided by the Regional Director for Region
signed by the Responden
Respondent and maintained for 60 days in conspicuous places including all
places were notices to employees are customarily posted.
physical posting of paper notices, notices shall be distributed electronically, 20
such as by email, posting on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by
such means.
the notices are not altered, defaced, or covered by any other material.
event that, during the pendency of these proceedings, the Respondent has 25
gone out of business or closed
Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent
at any time since
30
(g) Within 21 days
sworn certification of a responsible official on a form provided by the
Regional Director attesting to the steps the Respondent has taken to comply.
Dated, Washington, D.C.

11 If this Order is enforced by a judgment of a United States court of appeals
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.”
17
unlawful refusal to hire Wiersema or consider
notify him in writing that this had been done and
will not be used against him in any way.
11
t's authorized representative, shall be posted by the
In addition to
Reasonable steps shall be taken by the Respondent to ensure that
the facilities involved in these proceedings, the
June 24, 2014.
after service by the Region, file with the Regional Director a
, September 17, 2015.
__
Charles J. Muhl
Administrative Law Judge
, the words in the
JD–54–15
him for hire
security
Fort Wayne,
Copies of the
25, after being
In the
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT ask job applicants about their union membership, activities, or sympathies.
WE WILL NOT require job applicants to provide written evidence of their withdrawal from the
International Association of Heat and Frost Insulators and Allied Workers, Local 41 (the Union),
or any other union, in order to receive consideration for employment.
WE WILL NOT refuse to hire, or to consider for hire, job applicants, because of their union or
other protected, concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Ryan Wiersema the job he applied
for in June 2014, or a substantially equivalent position if that job no longer exists, without
prejudice to his seniority or any other rights or privileges he would have enjoyed from the date of
his hire.
WE WILL make Ryan Wiersema whole for any loss of earnings and other benefits suffered as a
result of our unlawful refusal to hire him.
WE WILL compensate Ryan Wiersema for the adverse tax consequences, if any, of receiving a
lump-sum backpay award and file a report with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters.
WE WILL, within 14 days from the date of this Order, remove from our files all references to
our unlawful refusal to hire Ryan Wiersema, or consider him for hire, and, within 3 days
thereafter, WE WILL notify him in writing that this has been done and that our unlawful conduct
will not be used against him in any way.
SHAMBAUGH AND SON, L.P.
(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.
575 North Pennsylvania Street, Room 238, Indianapolis, IN 46204-1577
(317) 226-7381, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-141001 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (317) 226-7413.