Spirit Construction Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Apr 27, 2007

30-CA-017601 (N.L.R.B. Apr. 27, 2007)

JD–30–07
Green Bay, WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SPIRIT CONSTRUCTION SERVICES, INC. Cases 30-CA-17601
30-CA-17604
and
WISCONSIN PIPE TRADES ASSOCIATION
Andrew S. Gollin, Esq., for the General Counsel.
Robert J. Janssen and Michael J. Kirschling, Esqs,
(Stellpflug, Janssen, Hammer, Kirschling & Bartels, S.C.),
DePere, Wisconsin, for the Respondent.
DECISION
Statement of the Case
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Green Bay,
Wisconsin, on March 13, 2007. The charges were filed on October 13, and 17, 2006 and the
Complaint was issued December 27, 2006.
The General Counsel alleges that on October 9, 2006, Respondent, Spirit Construction
Services, Inc., by its alleged supervisor and agent, Charles Jones, violated Section 8(a)(1) in
suggesting that it would be futile for employees to select the Union, the Wisconsin Pipe Trades
Association, as their bargaining representative and that Jones threatened employees that
Respondent would cease its operations in Wisconsin if employees organized. The General
Counsel also alleges that Respondent violated Section 8(a)(1) by prohibiting employees Nathan
Brunner and David Neumeyer from wearing a union sticker on October 11, and violating Section
8(a)(3) by terminating the employment of Nathan Brunner on October 12.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
Findings of Fact
I. Jurisdiction
Respondent is a construction company, specializing in work for the paper and pulp
industry. Its headquarters are in Savannah, Georgia and it maintains an office in Green Bay,
Wisconsin, where it annually purchases and receives goods and materials valued in excess of
$50,000 directly from suppliers outside of the State of Wisconsin. Respondent admits and I find
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union, the Wisconsin Pipe Trades Association, is a labor organization
within the meaning of Section 2(5) of the Act.
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II. Alleged Unfair Labor Practices
Throughout 2006, Respondent had several construction projects in the State of
Wisconsin. The largest, by far, involved the installation of new tissue machine at a Proctor and
Gamble facility in or near Green Bay. Another major project involved Georgia Pacific facilities in
the Green Bay area. This matter involves events at the Georgia Pacific West project during
October 2006.
The events of October 9, 2006
On October 9, 2006, employee David Neumeyer handed a letter to Charles Jones,
Respondent’s highest ranking individual on the Georgia Pacific West site. The letter was
addressed to Douglas Barone, Spirit’s Vice-President and General Manager, its highest ranking
official in the State of Wisconsin. Neumeyer’s letter advised Barone that he was a supporter of
the Union and would be assisting the Union in its effort to organize Respondent.
Neumeyer then had a conversation with Jones that he secretly recorded. Jones was
surprised to receive the letter and initially asked Neumeyer if the letter was his two weeks
notice. Neumeyer informed Jones that he was a union supporter. Jones asked him why and
Neumeyer indicated he was supporting the Union for financial reasons. A few minutes into the
conversation, Jones stated:
I know that. I know that. But I know Van Den Heuvel1 will shut er down.
Van Den Heuvel will shut er down. I know that. He’ll shut er right up. They’ll roll the
doors up. They’ll finish the P&G project and everything will be on the road. We’ll just
quit working around here.
GC Exhs. 17 & 18.
Credibility Resolution between David Neumeyer and Charles Jones
I find David Neumeyer’s testimony to completely credible and that the tape of his
conversation with Charles Jones on October 9, 2006 and the transcript of that tape are accurate
in all material respects. First, I would note that the tape was introduced into the record without
any objection by Respondent and without any voir dire examination by Respondent’s counsel.
On April 9, 2007, I listened to the tape in my office and compared it to the transcript. The
transcription is accurate in all materials respects, particularly with regards to Jones’ comments
about the reaction of Respondent’s CEO Stephen Van Den Heuvel to an organizing drive.
Moreover, there is nothing on the tape that indicates that it is anything but a recording of
Neumeyer’s conversation with Jones on October 9.
Jones, on the other hand, totally destroyed his credibility as a witness by denying that he
was the person whose voice was captured on the tape (Tr. 198, 200). His testimony is neither
consistent nor coherent. Jones testified that, “I don’t remember having that actual conversation
identical exactly to that with Dave Neumeyer (Tr. 200).” He testified that he didn’t remember
making the statements about CEO Van Den Heuvel’s reaction. Then, Jones testified that he
told Respondent’s attorneys that, “I do remember having a conversation with Dave Neumeyer

1 Stephen Van Den Heuvel is Respondent’s Chief Executive Officer. His principal office is in
Savannah, Georgia.
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but it wasn’t identical to that (Tr. 201).” When I asked Jones whether he recalled Neumeyer
giving him a letter about his support for the Union, Jones admitted that he did recall that and
that he also recalled having a conversation with Neumeyer about it (Tr. 202). It is beyond any
reasonable doubt that Jones’ comments to Neumeyer on October 9 were exactly those captured
on the tape and recorded in the transcript, GC Exh. 18.
The Agency Status of Charles Jones2
Board law regarding the principles of agency is set forth and summarized in its decision
in Pan-Oston Co., 336 NLRB 305 (2001). The Board applies common law principles in
determining whether an employee is acting with apparent authority on behalf of the employer
when that employee makes a particular statement or takes a particular action. Apparent
authority results from a manifestation by the principal to a third party that creates a reasonable
belief that the principal has authorized the alleged agent to perform the acts in question. Either
the principal must intend to cause a third person to believe the agent is authorized to act for
him, or the principal should realize that its conduct is likely to create such a belief.
The Board also stated in Pan-Oston, supra, that the test for determining whether an
employee is an agent of the employer is whether, under all the circumstances, employees would
reasonably believe that the employee in question was reflecting company policy and speaking
and/or acting for management. The Board considers the position and duties of the employee in
addition to the context in which the behavior occurred. It also stated that an employee may be
an agent of the employer for one purpose but not another.
In October 2006, the highest ranking Spirit Construction employee who was onsite at the
Georgia Pacific West project on a daily basis was Charles Jones. Respondent had more than
one crew on the project and the crew leaders or leadpersons reported to Jones. Respondent
paid for business cards that identified Jones a supervisor of Spirit Construction. Spirit denies
that Jones is either a supervisor pursuant to Section 2(11) of the Act, or its agent, pursuant to
Section 2(13) of the Act.
Nevertheless, Respondent’s Vice-President and General Manager, Douglas Barone,
Spirit’s highest ranking management official in the State of Wisconsin, describes Jones as “a
conduit of information” from the office to the field and from the field to the office. He concedes
that “it is reasonable for the employees to believe that Mr. Jones is speaking on behalf of
management when he tells the employees instructions that [Barone] has given to him (Tr. 183).”

2 I believe it is unnecessary to the resolution of this case to decide whether the General
Counsel has established that Jones was a “supervisor” pursuant to Section 2(11) of the Act.
However, I conclude that the General Counsel has not met its burden of proving supervisory
status. I find that he has not established that Jones exercised “independent judgment” in
assigning employees. The record merely establishes that when Georgia Pacific wanted
employees reassigned they contacted Jones, who transmitted Georgia Pacific’s orders. As to
his ability to grant employees’ time off, it has not been established that Jones did anything more
than make an “obvious and self-evident choice.” This is insufficient discretion to establish his
authority to exercise “independent judgment” and thus establish that Jones was a “supervisor,”
Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006) (slip opinion at ages 8-9). The fact that
Jones was Respondent’s highest ranking employee on the Georgia Pacific site does not
establish his supervisory status, Training School at Vineland, 332 NLRB 1412 (2000).
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This testimony in essence concedes that Jones was agent of Respondent pursuant to Section
2(13) of the Act, D & F Industries, 339 NLRB 618, 619 (2003).
When the project managers for Georgia Pacific wanted Spirit employees to stop or
interrupt one task to work on another, it was Jones who told Spirit employees to stop what they
were doing and go to another location on site. When Spirit employees on the Georgia Pacific
site wanted time off of work, they asked Jones, who gave them an affirmative or negative
answer almost immediately.
That employees believed that Jones spoke on behalf of management is also established
by the fact, discussed in more detail below, that when Jones ordered employees David
Neumeyer and Nathan Brunner to remove a union sticker from their hard hats, they did so.
When Jones told Brunner that he was being laid off, Brunner obviously believed that Jones was
speaking for Spirit Construction.
Thus, I conclude that Charles Jones was an agent of Respondent as defined in Section
2(13) of the Act when indicating to Neumeyer that it would be futile to organize Spirit, when he
told Neumeyer that CEO Van Den Heuvel would shut down its Wisconsin operations if
employees unionized and when he ordered Neumeyer and Brunner to remove a union sticker.
October 10 &11, 2006
On October 10, Spirit employee David Neumeyer placed several union stickers on his
hard hat. One of these stickers, GC Exh. 15, was rectangular in shape and had the following
words on it:
CATCH THE UNION
(in red letters)
SPIRIT
(in blue letters superimposed on an American flag)
FOR A BETTER LIVING
(in blue letters)
Neumeyer gave the “Catch the Union Spirit” sticker to his helper, Nathan Brunner, also a
Spirit employee, who affixed it to his hard hat. Neumeyer’s hard hat had the word Spirit on it in
white letters; other than that it had nothing on it identifying Neumeyer as a Spirit employee.
At about 2:00 or 2:30 p.m., the following day, October 11, Neumeyer and Brunner were
working beneath a paper machine at the Georgia Pacific West site, demolishing a scrubber,
when they were visited by Charles Jones. Jones told both employees, in a stern manner, to
remove the “Catch the Spirit” sticker from their hardhats. They both did so. Neumeyer had
other union stickers on his helmet, but none of them could be viewed as a specifically directed
to the employees of Spirit Construction. The only union sticker Brunner had on his helmet was
the “Catch the Spirit” sticker. Respondent’s employees were generally allowed to wear other
types of stickers on their hardhats and regularly did so.
Thursday, October 12, 2006
Nathan Brunner reported to work at the Georgia Pacific West site at 6:45 a.m. on
Thursday, October 12. As soon as he arrived, Charles Jones summoned Brunner to his truck
and informed him that he was being laid off. Brunner asked Jones if this was a permanent lay-
off; Jones told him it was temporary, that there wasn’t enough work. Jones then asked Brunner
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if he had his truck to pick up his tools. Brunner’s tools were already sitting in the back of Jones’
truck.
Brunner had been scheduled to work that entire week demolishing the scrubber that he
had been working on with Neumeyer on October 11 (GC Exh. 7). Thus, Brunner was scheduled
to work Thursday, October 12, and Friday, October 13.
After Brunner was laid off, or fired, Respondent’s employees began working
considerably more overtime hours than they had been previously, almost immediately (GC Exh.
8). Contrary to its normal practice, Respondent laid off Brunner, a “direct hire,” while retaining
at least one employee, Jerry Barta, who was working for it through a temporary employment
agency (Tr. 133-34). About two weeks later, on October 30, Respondent directly hired two
entry-level employees, David Galbraith and Jake Process, to work on the Georgia Pacific West
project.
Brunner’s “Nate’s In Heaven” letter
Several weeks after he was either laid off or fired, either in late October 2006, or early
November 2006, Nathan Brunner sent Respondent a letter, R. Exh. 4, drafted with the
assistance of the Union, entitled “Nate’s In Heaven.” The first paragraph recounted that he was
fired by Jones the day after he wore the “Catch the Spirit” sticker. The second paragraph
informed the reader about his new job as a union employee. The third paragraph discussed his
goal to become a journeyman within a few years.
The fourth paragraph of Brunner’s letter apologized to fellow employees for not saying
goodbye and concluded “it sure feel’s like I’m working in heaven now.” As a postscript, Brunner
asked employees, “to support Nate and Dave’s struggle to win a better standard of living for all
Spirit employees by displaying the enclosed hard hat sticker.” This record does not indicate
whether the enclosed sticker was the one worn by Brunner and Neumeyer on October 11. The
only criticism of Respondent in the letter appears in the first paragraph and accuses Spirit of
showing him a “lack of respect” in discharging him and being motivated by communicating “the
big scare of losing your job” and a desire to keep “a thumb on its workers.”
The relevance of this letter is that Respondent intimates that it demonstrates the kind of
“bad attitude” that entitled it to select Brunner for lay-off and/or that it entitled it to refuse to recall
him when it claims that work picked up on the Georgia Pacific site at the end of October.
Respondent may also be suggesting that a reinstatement order would be inappropriate even if
the Board finds that Brunner’s termination was unlawful.
Respondent, by Charles Jones, violated Section 8(a)(1) by threatening David Neumeyer with
the cessation of Respondent’s operations in the event of unionization and in indicating the futility
of seeking union representation.
Since I have found Charles Jones to have been an agent of Respondent when he spoke
to David Neumeyer on October 9, 2006, I impute his statements, that CEO Van Den Heuvel
would shut down its Wisconsin operations in the event of unionization, to Spirit Construction.
Respondent can reasonably be held liable for Jones’ statements in that Neumeyer would
reasonably have believed that Jones was transmitting management’s views on unionization,
Einhorn Enterprises, 279 NLRB 576 (1986) enfd. 843 F. 2d 1507 (2nd Cir. 1988).
An employer may make a prediction as to the precise effects of unionization on its
company. However, such a prediction must be carefully phrased on the basis of objective fact
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to convey the employer’s belief as to probable consequences beyond the employer’s control or
to convey a management decision already arrived at to close its facility in the event of
unionization, NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). If an employer makes
statements regarding the closing of a facility that are not based on objective fact, or a decision
that has not already been made, it violates Section 8(a)(1). The same is true if an employer
makes assertions indicating that an organizing effort would be a useless endeavor.
There is nothing in this record to suggest that Jones’ statements were predictions
carefully phrased on objective fact, or a management decision already made. Therefore I find
that Jones’ comments violated Section 8(a)(1), Consolidated Biscuit Co., 346 NLRB No. 101
(2006) (slip opinion at page 1 and n. 4 and n. 5, pages 34-35). Additionally Jones violated
Section 8(a)(1) in suggesting to Neumeyer that any effort to organize Respondent would be
futile, Albert Einstein Medical Center, 316 NLRB 1040 (1995).
Respondent, by Charles Jones, violated Section 8(a)(1) in prohibiting David Neumeyer and
Nathan Brunner from wearing the “Catch the Spirit” union sticker on their hardhats.
In the absence of special circumstances, employees have a Section 7 right to wear
insignia at work referring to unions or other matters pertaining to working conditions for the
purpose of mutual aid or protection. The Board has found “special circumstances” in which the
interest of employees in the wearing of insignia is outweighed by an employer’s legitimate
interest in maintain discipline, safety or efficient production, Midstate Telephone Corporation,
262 NLRB 1291, 1292 (1982) enfd. denied 706 F.2d 401 (2nd Cir. 1983). Respondent has not
demonstrated any such interests with regard to the “Catch the Spirit” sticker.
When Respondent’s agent, Charles Jones, ordered employees Neumeyer and Brunner
to remove the “Catch the Spirit” sticker from their hardhats, he gave them no reason for the
command. On this basis alone, I conclude that Respondent has not demonstrated “special
circumstances” entitling it to prohibit the wearing of the sticker. I discredit the “after-the-fact”
reason, proffered by Respondent’s Vice-President and General Manager Doug Barone, and find
moreover, that Respondent is not entitled to rely on a rationale that it did not raise at the time it
ordered the removal of the stickers.
In any event, Barone contends:
…it could be construed as defamation of the company logo because…it’s too
close to the logo. I mean it’s a flag in a backdrop of spirit. The spirit lettering is
identical or near to identical…and the only other…difference is the fact that the
flag appears to be in the wind verses flat on the back of the logo.
Tr. 172.
The Spirit logo, as it appears on Charles Jones’ business card, GC Exh. 12, is an
American flag, situated at an angle, with the word “Spirit” in white letters superimposed on the
flag’s exaggeratedly wide stripes, which are much longer and disproportionate compared to the
square blue background for the flag’s 20 white stars.
Respondent, in its Answer to the Complaint, alleged that any request to remove a sticker
was for the purposes of protecting Spirit Construction’s trademark. However, by October 2006,
Respondent’s registration of its trademark had expired. It sought to reregister the logo in late
November 2006. Jones testified that he ordered Neumeyer and Brunner to remove the sticker
because it would make it difficult for him to locate them on the jobsite. However, this
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explanation is also clearly pretextual in that Respondent allowed its employees to wear all kinds
of stickers on their hardhats and if anything, the “Catch the Spirit” sticker would make it easier to
locate Respondent’s employees in a crowd.3
However, the important point is that the “Catch the Spirit” sticker is a lawful appeal to
other employees to support the Union. It does not disparage Respondent in any manner.
Respondent has failed to establish that any “special circumstances’ exist that would entitle it to
prohibit the wearing of the “Catch the Spirit” sticker, even if has obtained a valid trademark
registration since October. Therefore, I find that Respondent, by Charles Jones, violated
Section 8(a)(1) in ordering Neumeyer and Brunner to remove this sticker.
Respondent violated Section 8(a)(3) and (1) in terminating the employment of Nathan Brunner.
In order to prove a violation of Section 8(a)(3) and (1), the General Counsel must
generally make an initial showing that (1) the employee was engaged in protected activity; (2)
the employer was aware of the activity; and (3) that animus towards the protected activity was a
substantial or motivating reason for the employer’s action. Once the General Counsel makes
this initial showing, the burden of persuasion shifts to the Respondent to prove its affirmative
defense that it would have taken the same action even if the employee had not engaged in
protected activity, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981); La
Gloria Oil and Gas Co., 337 NLRB 1120 (2002).
Nathan Brunner engaged in protected activity by wearing the “Catch the Spirit” union
sticker on his hardhat on October 10 and 11, 2006. On October 11, 2006, Respondent, in the
person of Charles Jones, became aware of Brunner’s union activity. Jones’ threat to Neumeyer
on October 9, and his command to Neumeyer and Brunner to remove the sticker on October 11,
establishes the animus of Respondent towards Brunner’s union activities. I infer discriminatory
motive from the timing of Brunner’s discharge. There simply is no credible alternative
explanation for the fact that Brunner was discharged the morning after Jones told him to remove
the “Catch the Spirit” union sticker from his hardhat.
Respondent has not made out a credible affirmative defense. Doug Barone testified that
he was unaware that Brunner had worn the sticker when he decided to terminate his
employment. Barone did testify, however, that he did know that Neumeyer wore the union
sticker on his hard hat before he laid off or fired Brunner (Tr. 171). Thus, Respondent is
suggesting that Jones told Barone that Neumeyer wore the “Catch the Spirit” sticker, but did not
mention to Barone that Brunner was wearing the same sticker. I find this testimony to be
incredible and find that Barone knew on October 11 that both employees wore this sticker on
their hardhats. I base this finding in part on the inference I draw from Brunner’s termination the
very next morning, see Mays Electric Co., 343 NLRB 121, 127 (2004); Metro Networks, 336
NLRB, 63, 65 (2001). An employer’s knowledge of protected activity, its animus towards that
activity4 and the motive for an adverse personnel action may be inferred from circumstantial
evidence.

3 In this regard Jones’ justification for prohibiting the wearing of the sticker and Barone’s
justification are clearly contradictory.
4 Respondent contends that the testimony of Douglas Barone establishes its lack of animus
towards union activity. In fact, his testimony shows merely that Respondent is willing to
subcontract to unionized employers in the Green Bay area, not that it has no animus regarding
union activity amongst its own employees. As the General Counsel points out, Respondent has
settled unfair labor practice charges in the past by paying union members backpay.
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Respondent offers several explanations for the lay-off/termination of Brunner. Each
begs the question as to why he was laid off on October 12, the day after Jones saw Brunner
wearing a union sticker. The evidence not only fails to establish that Brunner was laid off for a
lack of work; it indicates just the opposite. The increase in overtime worked after Brunner’s
termination, the retention of at least one temporary employee and hiring of two permanent
employees on October 30 establishes that Respondent’s claim that Brunner was laid off for lack
of work is pretextual.
Furthermore, Respondent has been very inconsistent as to its reasons for laying-
off/terminating Brunner. In its Answer to the Complaint allegation that Brunner was terminated,
Respondent stated that Brunner was laid off. In its position statement submitted during the
investigation, Respondent also stated that Brunner was laid off, not discharged, although it did
indicate that he was selected for lay-off due to his “ bad attitude.”
Respondent introduced a great deal of evidence regarding the fact that Proctor and
Gamble had kicked Brunner off its jobsite for a very serious safety infraction several months
earlier. However, Respondent did not even discipline Brunner for this infraction and retained
him as an employee.
Spirit also cites Brunner’s “bad attitude” as reflected in repeated complaints about his
pay and assignment to Respondent’s shop in the summer of 2006. Nevertheless, Respondent
neither disciplined nor terminated Brunner until he wore the union sticker. Finally, Respondent
relies on an incident which occurred several weeks prior to October 12, in which Respondent’s
safety director, Bob Thomson, saw Brunner on the Georgia Pacific West jobsite without ear
plugs. Brunner testified that there were no ear plugs in the supply cabinet and that he told
Thomson to “go get me ear plugs.” Thomson testified that Brunner said, “why don’t you fucking
get me some.”
Regardless, of which version of the ear plug incident is accurate, Respondent did not
discipline Brunner in any way for that incident, or for his attitude in general. On the morning of
October 12, Jones said nothing to Brunner about his attitude. He told Brunner that one of the
tasks on the Georgia Pacific site, the installation of a rewinder machine, was finishing up and
that Respondent had too many men. Jones also told Brunner that it would be calling him back
when worked picked up (Tr. 196). I find this testimony completely inconsistent with
Respondent’s contention that Brunner’s attitude or performance on the job had anything to do
with the termination of his employment.
Respondent’s vacillation in explaining why Brunner’s employment ended on October 12,
is another factor on which I rely in concluding that his termination was motivated by the fact that
Respondent saw him wear a union sticker on the previous afternoon, Black Entertainment
Television, 324 NLRB 1161 (1997). In a much earlier decision the Board explained:
Where an employer is unable to settle on a reason for discharge, but vacillates
between several asserted reasons, an inference is warranted that the real reason
for the discharge is not among those advanced. In the context of Respondent’s
hostility to the Union and its other unfair labor practices it often becomes
apparent that the real reason was the employee’s union activity.
Steve Aloi Ford, 179 NLRB 229, 230 (1969).
Finally, Respondent cannot rely on the subsequent conduct of Brunner in sending the
“Nate’s in Heaven” letter to it and its employees for its decision to terminate his employment.
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Moreover, nothing in the letter would make a reinstatement order inappropriate. The “Nate’s in
Heaven” letter is clearly union activity that is protected by Section 7 of the Act, United States
Postal Service, 241 NLRB 389, (1979). Respondent cannot rely on Brunner’s “disdain” for it, or
for his concession that he did not expect to be recalled by Spirit after sending his letter. After
all, as Brunner correctly surmised, Respondent had unlawfully terminated him due to his
expression of support for the Union.
Summary of Conclusions of Law
1. Respondent, by it agent Charles Jones, violated Section 8(a)(1), on October 9, 2006,
by threatening employee David Neumeyer with cessation of Respondent’s Wisconsin operations
if employees chose the Union as their authorized collective bargaining representative.
2. Respondent, by its agent Charles Jones, violated Section 8(a)(1), on October 9, 2006,
in indicating to David Neumeyer that it would futile for employees to choose the Union as their
authorized collective bargaining representative.
3. Respondent, by its agent Charles Jones, violated Section 8(a)(1), on October 11,
2006, in directing employees David Neumeyer and Nathan Brunner to remove a union sticker
from their hard hats.
4. Respondent violated Section 8(a)(3) and (1) by terminating the employment of Nathan
Brunner on October 12, 2006.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Nathan Brunner, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER
The Respondent, Spirit Construction Services, Inc., Green Bay, Wisconsin, and
Savannah, Georgia, its officers, agents, successors, and assigns, shall
1. Cease and desist from

5 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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(a) Discharging or otherwise discriminating against any employee for supporting the
Wisconsin Pipe Trades Association, or any other union.
(b) Threatening employees with cessation of its operations, or closure of a facility if they
choose to be represented by a labor organization.
(c) Indicating that it would be futile for its employees to choose to be represented by a
labor organization.
(d) Prohibiting employees from wearing insignia supporting the Union, or any other
union.
(e) 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 the Board’s Order, offer Nathan Brunner full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Nathan Brunner whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Nathan Brunner in
writing that this has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its Green Bay, Wisconsin
construction sites, copies of the attached notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 30, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a

6 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–30–07
Green Bay, WI
copy of the notice to all current employees and former employees employed by the Respondent
at any time since October 9, 2006.
(f) 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., April 27, 2007.
____________________
Arthur J. Amchan
Administrative Law Judge
JD–30–07
Green Bay, WI
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 discharge or otherwise discriminate against any of you for supporting the
Wisconsin Pipe Trades Association, the Union, or any other union.
WE WILL NOT threaten you with the cessation of our Wisconsin operations if you choose the
Union, or any other union, as your authorized collective bargaining representative.
WE WILL NOT suggest that it would be futile for you to choose the Union, or any other union, as
your authorized collective bargaining representative.
WE WILL NOT prohibit you from wearing insignia supporting the Union, or any other union on
our worksites.
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 Nathan Brunner full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Nathan Brunner whole for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest.
JD–30–07
Green Bay, WI
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Nathan Brunner and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not be used against him in any way.
SPIRIT CONSTRUCTION SERVICES, 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.
310 West Wisconsin Avenue, Federal Plaza, Suite 700
Milwaukee, Wisconsin 53203-2211
Hours: 8 a.m. to 4:30 p.m.
414-297-3861.
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, 414-297-1819