St. Louis Cardinals, LLC

National Labor Relations Board - Administrative Judge Opinions

May 15, 2020

14-CA-213219 (N.L.R.B. May. 15, 2020)

JD–22–20
St. Louis, MO
1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ST. LOUIS CARDINALS, LLC
and Case No. 14-CA-213219
JOE BELL
An Individual
Bradley A. Fink, and Lauren M. Fletcher, Esqs., for the General Counsel.
Robert W. Stewart and Harrison C. Kuntz, Esqs., (Ogletree, Deakins, Nash, Smoak & Stewart,
P.C., St. Louis, Missouri) for the Respondent.
DECISION ON REMAND
Arthur J. Amchan, Administrative Law Judge. On January 3, 2020, the Board issued its
decision in this case, affirming my findings and conclusions that Respondent violated Section
8(a)(3) and (1) in discharging or refusing to recall Joe Bell to work as a painter at Busch
Stadium, home of the St. Louis Cardinals in 2018. The Board reversed my findings with regard
to Thomas Maxwell, concluding that the Cardinals did not violate the Act in refusing to recall or
rehire him. It remanded to me the allegations regarding James Maxwell and Eugene Kramer, to
provide Respondent an opportunity to show as an affirmative defense that it would have decided
not to employ these employees even in the absence of their protected activity. 369 NLRB No.3.
Pursuant to the Board’s order I invited the parties to file supplemental briefs on the
record created in August 2018. The General Counsel and Respondent have filed supplemental
briefs.1 Discriminatees James Maxwell and Eugene Kramer submitted a letter which they served
on the other parties. I have considered that letter only as it pertains to evidence already in the
record.
Upon considering the record and the parties’ supplemental briefs, I find that Respondent
has not established its affirmative defense and that the Cardinals violated Section 8(a)(3) and (1)
in failing to recall James Maxwell and Eugene Kramer to work as painters at Busch Stadium in
January 2018.
1 Respondent included in its brief a motion to reconsider my refusal to approve a settlement between
it and the General Counsel pertaining to Eugene Kramer. I addressed that motion in a separate document.
JD–22–20
2
STATEMENT OF THE CASE/ISSUES ON REMAND
5
This case was tried in St. Louis, Missouri on August 21-22, 2018. Joe Bell filed the initial
charge in this matter on January 18, 2018. The General Counsel issued the complaint on April
26, 2018.
The General Counsel alleged that Respondent, the St. Louis Cardinals, violated Section 10
8(a)(3) and (1) of the Act by discharging paint shop employee James Maxwell on or about
January 9, 2018 and refusing to recall and/or rehire paint shop employees, Thomas Maxwell, Joe
Bell and Eugene Kramer since about the same date. As noted above, the Board found the
violation with regard to Bell and dismissed the allegations regarding Thomas Maxwell. The
Board also affirmed my finding that Respondent, on or about January 18, 2018 by its Director of 15
Facility Operations, Hosei Maruyama, violated Section 8(a)(1) by telling Thomas Maxwell that
actions have consequences which implied that he and others were not being recalled (or being
discharged) due to protected activity, the filing of internal union charges against paint shop
foreman Patrick Barrett.
20
FINDINGS OF FACT
I. JURISDICTION
Respondent, a limited liability company operates the major league baseball team in St. 25
Louis, Missouri. It annually derives gross revenue in excess of $500,000 and purchases and
receives goods valued in excess of $50,000 directly from points outside of Missouri. 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 Painters District Council No. 58, of which the alleged
discriminatees are members, is a labor organization within the meaning of Section 2(5) of the 30
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Cardinals maintain a paint shop at Busch Stadium, where the team plays its home 35
games. For 34 years Billy Martin was the paint foreman at the Cardinals’ ballpark. By virtue of
its collective bargaining agreement with the Union, the paint foreman must be a member in good
standing with District Council 58. Martin was one of two full-time painters employed by the
Cardinals.2 Since 2010, James Maxwell was the other full-time painter. Prior to 2010, Maxwell
had been a seasonal painter. For periods of 6-8 weeks, both before the baseball season and 40
afterwards, the Cardinals hired somewhere in the vicinity of 6 more seasonal painters.
2 Respondent’s current foreman, Pat Barrett, disputed this. He testified that James Maxwell was
never full-time at the Stadium. I credit Maxwell, but think this fact would only be relevant in a
compliance proceeding. It is clear that one painter besides the foreman worked substantially more hours
than others. In 2017, this painter was James Maxwell. In 2018, Mark Ochs worked substantially more
than other painters, except for Barrett.
JD–22–20
3
The Cardinals’ general practice was to recall the same seasonal painters year after year,
Tr. 375. Thus Thomas Maxwell had performed seasonal work for Respondent every year since
2006. Eugene Kramer had performed seasonal work every year since 2014 or 2015. Joe Bell’s
first year painting for the Cardinals was 2017. Patrick Barrett had worked for the Cardinals 5
since 2006. Mickey Burns and Mark Ochs had also worked for the Cardinals as seasonal
painters for at least several years prior to 2017. If a painter was offered seasonal work by the
Cardinals while employed, he or she would leave their other job to accept Respondent’s offer.
In July 2017 Billy Martin told Pat Barrett that he planned to retire in December 2017, Tr. 10
299. Sometime in the summer or fall of 2017, but definitely prior to November 2, 2017, Martin
informed his boss, Director of Facility Operations, Hosei Maruyama of his intention to retire in
2017, Tr. 274-75. On November 2, 2017, with knowledge of Martin’s intent to retire,
Respondent sent or gave James Maxwell, Thomas Maxwell and Eugene Kramer a letter
indicating that the Cardinals intended to employ them in 2018, G.C. Exhs. 10-12. 15
This letter also stated, “This letter is a reasonable assurance that your employment will
continue for 2018.” On November 6, all three indicated their intention to work for the Cardinals
in 2018. There is no evidence that the Cardinals were unhappy with the quality of the work
performed for it by any of the discriminatees. 3 Respondent also gave no indication that the 20
decision of whether or not to recall the discriminatees would be left up to whoever was selected
to replace Martin as foreman. I find that Respondent did not give Barrett the authority to select
painters for the 2019 season until after he and Maruyama knew that the Maxwells, Kramer and
Bell had filed internal union charges against Barrett.
25
Hosei Maruyama interviewed 3 painters to replace Martin: Patrick Barrett, James
Maxwell and his brother, Thomas Maxwell. Maruyama testified that he interviewed James
Maxwell as a courtesy to Billy Martin, thus implying that he only considered Thomas Maxwell
and Pat Barrett for the foreman’s position. Around Thanksgiving, the Cardinals selected Patrick
Barrett for the position despite the fact that James Maxwell had worked for the Cardinals for a 30
longer time and more regularly. James Maxwell, Thomas Maxwell and Eugene Kramer were
unhappy with this selection.
Maruyama called James Maxwell at the end of November to inform him that he had
selected Pat Barrett to replace Martin. James Maxwell called Maruyama back a few hours later. 35
He told Maruyama that Barrett was “not a good union guy” and did not deserve the paint
foreman position. Maxwell also said he could not work for Barrett and that he was pressing
internal union charges against Barrett, Tr. 255-57.
Maruyama testified that he reported this conversation to Barrett and Matt Gifford, the 40
Cardinals’ vice-president of operations, the same day. Maruyama told Barrett that the Maxwells
3 At Tr. 331-32, Pat Barrett testified that his understanding of the purpose of these letters was to allow
the Cardinals to run an extensive background check on every employee, thus implying that the letters do
not mean what they say on their face. I do not credit this testimony insofar as it makes this implication.
There is no foundation for Barrett’s understanding. I find that the letters mean what they say, i.e., that as
of November 2, 2017, the Cardinals intended to employ James Maxwell, Eugene Kramer and Thomas
Maxwell in 2018. There is no evidence in this record as to whether Joe Bell received such a letter.
JD–22–20
4
were going to file charges against him with the Union, Tr. 300. In this conversation Maruyama
did not tell Barrett that Maxwell said he could not work for Barrett. Barrett testified that he
could not recall the date on which he learned that Maxwell said he could not work for him but
then said it was “in December sometime, the end of December maybe,” Tr. 324. A few days
later, Maruyama told Barrett that he would have the foreman’s job as long as he kept his union 5
card.
A few days after James Maxwell had the 2 conversations with Maruyama about the
selection of Barrett, which I assume was early December, he called Maruyama again to tell him
that he would bite his lip and make it (working under Barrett) work. Maruyama did not testify 10
that he reported this conversation to Barrett. Barrett testified that “sometime in January”
Maruyama told him that Maxwell would bite his lip and try to make it [painting for Barrett]
work, Tr. 325. Barrett’s failure to pinpoint dates makes this testimony irrelevant even if true.
There is no evidence that Barrett had made offers of employment to anyone before learning that
James Maxwell said that he would “make it work.”4Moreover, I think it more likely that when 15
Maruyama told Barrett that Maxwell initially said he could not work for Barrett, he also told him
that Maxwell recanted this statement.
On December 4, 2017, James Maxwell, Thomas Maxwell, Joe Bell and Eugene Kramer
filed internal union charges against Barrett with District 58, alleging that contrary to the By-20
Laws of the Union, Barrett had regularly worked for non-union companies. Barrett worked on
and off for non-union contractor Robert Shamel over a 10-year period, apparently with some
regularity. James and Thomas Maxwell had been aware of this fact for years but only filed union
charges after learning that Barrett had received the paint foreman position with the Cardinals.
Thomas Maxwell and James Maxwell also performed work for Shamel on occasion. Eugene 25
Kramer worked for Shamel once in about 2012.5
On January 2, 2018, Pat Barrett assumed the duties of paint shop foreman. On January 3,
a union trial board held a hearing on the charges filed against Barrett. Barrett and James
4 The Board in footnote 6 of its decision states that I expressed skepticism about Barrett’s testimony,
but did not clearly discredit it. Even if Maruyama advised Barrett that Maxwell said he could not work
for him, this does not support Respondent’s affirmative defense. For one thing, Barrett decided not to
offer employment to Joe Bell and Eugene Kramer, who signed the internal charges and did not tell
Maruyama that they could not work for Barrett. Thus, I conclude that even if Barrett was aware of the
things James Maxwell said about working for him prior to deciding not to rehire him, that does not
establish that Barrett would not have offered work to James Maxwell even if he had not filed internal
union charges.
5 There is no credible evidence that Joe Bell ever performed painting work for non-union companies
while a member of the Union. In the fall of 2017, Barrett told Bell that if he needed side work (i.e., work
for a non-union employer) Barrett had a lot of it, Tr. 133. Bell gave Barrett his telephone number, Tr.
134. Respondent did not ask Bell and Bell did not testify that he had ever performed non-union work
while a member of the Union. I decline to credit Pat Barrett’s self-serving testimony at Tr. 296-97 that
Bell told him he had performed side work previously. I do not regard Barrett as a reliable witness
inasmuch as his testimony as to the reasons he did not offer Bell work in 2018 is incredible. Thomas
Maxwell suggested that Barrett trying to recruit Bell for non-union work motivated the 4 to file charges
with the Union.
Kramer denied ever working for Shamel. I credit Shamel in as much the record indicates no reason
for him to fabricate this testimony.
JD–22–20
5
Maxwell testified in the hearing. The Union levied a $15,000 fine against Barrett. However, it
suspended $12,000 of this amount if Barrett paid $3,000 within 90 days. James Maxwell,
Thomas Maxwell, Joe Bell and Eugene Kramer appealed the Trial Board’s decision contending
that it was too lenient.6
5
On January 9, Gregg Scott, the Union’s Business Manager, and Director of Organizing
Richard Lucks met with Cardinal representatives and informed them that the Union would not
seek removal of Barrett from the paint foreman position so long as he paid the $3,000 fine on
time.
10
On January 9, 2018 Eugene Kramer had telephone conversations with the Cardinals
Director of Facility Operations, Hosei Maruyama. Kramer complained about Barrett’s temper.
Maruyama told Kramer he left hiring up to Barrett and that Kramer would have to go through the
Union’s hiring hall if he wanted to work for the Cardinals again. Eugene Kramer testified that
Maruyama told him that actions have consequences, clearly implying that he would not be called 15
back by the Cardinals (or at least without going through the hiring hall) because the 4 painters
filed internal union charges against Barrett. Maruyama testified that he did not recall making
such a statement, Tr. 261. I credit Kramer that Maruyama said this or something substantially
similar. A set forth below, this is what Maruyama said to Thomas Maxwell 9 days later in a
recorded conversation. Moreover, it is more likely than not that Maruyama explained to Kramer 20
why he would have to go through the union hall when that had not been the case in prior years.
As stated above, in a conversation with Thomas Maxwell on January 18, Maruyama said
that actions have consequences, clearly implying that the 4 painters would not be called back by
the Cardinals (or at least without going through the hiring hall) because they filed internal union 25
charges against Barrett, G.C. Exhs 9(a) and (b).7
On January 18, 2018, James Maxwell, Thomas Maxwell, Joe Bell and Eugene Kramer
filed a grievance pursuant to the Union’s collective bargaining agreement with the Cardinals.
They were seeking to be recalled to work at the paint shop at Busch Stadium. At a labor-30
management meeting about the grievance on February 21, 2018, Pat Barrett and Matt Gifford,
the Cardinals’ Vice-President of Operations, represented Respondent. The labor-management
trial board did not require Respondent to recall the Maxwells, Kramer and Bell. Respondent and
the Union also agreed that the Cardinals did not violate their collective bargaining agreement by
promoting Barrett to paint shop foreman. 35
At the trial board proceeding, Gifford stated that the Maxwells, Bell and Kramer were
eligible for rehire, R. Exh. 10. Neither Gifford nor Barrett made any statements about any
misconduct or inferior work by any of the discriminatees. In its written submission for the
grievance, R. Exh. 9, Respondent stated that painters were hired for the 2018 season because 40
6 The record does not reflect when this appeal was filed.
7 I do not credit Maruyama’s testimony at Tr. 264 that when he told Thomas Maxwell that, “actions
have consequences,” he was referring to James Maxwell telling him that he could not work for Pat
Barrett. The recording of the conversation makes it clear that Maruyama and Thomas Maxwell were
talking about the filing of the internal union charges and Thomas Maxwell’s assertion that Barrett was
continuing to recruit union painters for non-union work. Maruyama and Thomas Maxwell did not discuss
James Maxwell or his comment about working for Barrett, G.C. Exh. 9.
JD–22–20
6
they were the best qualified in the judgement of management “and solely because of that
reason.” That submission did not make any allegations of misconduct or inferior work on the
part of James Maxwell, Eugene Kramer or the other 2 discriminatees.
The Cardinals did not go through the hiring hall to obtain seasonal painters when Martin 5
was the foreman. Martin generally recalled the same painters for seasonal work year after year.
Barrett continued this practice with regard to painters who did not sign the internal union charges
against him.
During the second week of January 2018, Barrett offered Mark Ochs, who worked for the 10
Cardinals in 2017 and did not sign the union charges, work in the winter/spring of 2018. The
second painter to get an employment offer from Barrett in January 2018 was Mickey Burns, who
also worked for the Cardinals in 2017 and did not sign the union charges. Neither was hired via
the Union’s hiring hall. Barrett hired other painters who had not worked for the Cardinals in
2017 after offering employment to Ochs and Burns. Only one of these, Duane Oehman, was 15
hired through the Union’s hiring hall. Pat Barrett’s testimony does not establish that all those
hired for the 2018 season were more qualified that any of the discriminatees. This is particularly
true of Duane Oehman. The record does not establish that Barrett had any familiarity with the
quality of his work.
20
Patrick Barrett initially did not offer employment to any of the four discriminatees. On
February 5 and 8, after Joe Bell filed the initial ULP charge in this proceeding, Barrett offered
employment to Thomas Maxwell. Maxwell did not respond to the offer. Barrett conceded at the
instant hearing that the fact that the 4 had brought internal union charges against him was a
factor in his decision not to offer them employment in 2018 (or initially offer Thomas Maxwell 25
employment).
I find that Respondent has not established that it would have failed to recall James
Maxwell and Eugene Kramer in 2018 had they not filed internal union charges against Patrick
Barrett. Not only do I discredit Barrett’s alternative explanations, but his testimony and Hosei 30
Maruyama’s statements to Thomas Maxwell establish that the internal union charges were the
reason for Respondent’s decisions in this regard.
Analysis
35
Respondent violated Section 8(a)(3) and (1) by not offering James Maxwell and Eugene
Kramer employment in 2018.
The filing of internal union charges is protected activity. It is an unfair labor practice for 40
an employer to discriminate against an employee for filing internal union charges, M. J. Electric,
311 NLRB 1177, 1179, 1183, (1993); Tracy Towing Line,166 NLRB 81,82 (1967).8
8 The discriminatees’ filing of union charges is not any the less protected because they were seeking
to remove Pat Barrett from his foreman’s position. An analysis of whether these employees’ activities are
protected depends on whether the identity and capability of the supervisor involved has a direct impact on
the employees’ own job interests and on the performance of the work they are hired to do, Senior Citizens
JD–22–20
7
In order to establish a violation of Section 8(a)(3) and (1), the Board generally requires
the General Counsel to make an initial showing sufficient to support an inference that the alleged
discriminatee’s protected conduct was a ‘motivating factor’ in the employer’s decision. Then the
burden shifts to the employer to demonstrate that the same action would have taken place even in 5
the absence of protected conduct, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (lst
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399-403 (1983); American Gardens Management Co., 338 NLRB 644
(2002).
10
Respondent, through its agent, Patrick Barrett, admitted that this protected activity
factored “a little bit” in its decision not to employ the 4 discriminatees in 2018, Tr. 321, 392.
The Board in its January 3, 2020 decision in this case, held that Barrett’s admission only
supports a finding that the alleged discriminatees’ internal union charges were a motivating
factor for Barrett’s decision and that Respondent is still entitled to show, as an affirmative 15
defense, that it would have decided not to employ James Maxwell and Eugene Kramer even in
the absence of their protected activity.9
I find that Respondent has failed to make out such an affirmative defense. First of all,
Hosei Maruyama implicitly told Thomas Maxwell and Eugene Kramer that the filing of the 20
Coordinating Council, 330 NLRB 1100, 1103 (2000). In addition to their concerns about Barrett
shortchanging the Union, Kramer and James Maxwell informed Respondent via Maruyama that they
would find it difficult to work under Barrett. James Maxwell, Eugene Kramer and James Bell also
testified or at least indicated that they were concerned, before they filed the internal union charges, that
that Barrett would discharge them.
As a general matter, employees have a protected right to complain about a supervisor and even to
seek the supervisor’s discharge, when the supervisor’s conduct can affect the conditions of their
employment, Calvin D. Johnson Nursing Home, 261 NLRB 289 (1982) enfd. 753 F.2d 1078(7th Cir.
1983); Dreis & Krump Manufacturing, Inc., 221 NLRB 309, 315 (1975) enfd. 544 F.2d 320 (7th Cir.
1976); Avalon Carver Community Center, 255 NLRB 1064 (1981).
Bovee and Crail Construction Co., 224 NLRB 509 (1976), cited by Respondent is inconsistent
with this line of cases. Moreover, it is distinguishable in that the discriminatees in that case were
members of the Union’s executive board. By contrast, the discriminatees in this case did not hold any
position with the Union.
9 The Board has stated that it will not seek to quantitatively analyze the effect of the unlawful
cause once it has been found. “It is enough that the employees' protected activities are causally related to
the employer action which is the basis of the complaint. Whether that ‘cause’ was the straw that broke the
camel's back or a bullet between the eyes, if it were enough to determine events, it is enough to come
within the proscription of the Act,” Wright Line, 251 NLRB 1083, at 1089 fn. 14; accord: Bronco Wine
Co., 256 NLRB 53, at 54 fn. 8 (1981). The remand in this case calls into question whether the Board still
adheres to the proposition stated above.
In this regard, I note that Oakes Machine Corp., 288 NLRB 456, 458 (1988) cited in
Respondent’s brief is distinguishable from the instant case. Unlike Barrett, the employer in that case did
not concede that one of the reasons for terminating supervisor Kress was a protected reason [indicating
that he would testify on behalf of a subordinate in a Board proceeding]. The judge found that the reasons
the employer gave for Kress’ termination were pretextual and thus inferred that one of the reasons for
Kress’ discharge was protected, 288 NLRB at 462 n. 1, 466, 471.
JD–22–20
8
internal union charge was the reason the four discriminatees would not be working for the
Cardinals in 2018.10 Secondly, I decline to credit Pat Barrett’s testimony to the extent it suggests
that Respondent would not have hired James Maxwell and Eugene Kramer even if they had not
filed internal union charges against him.
5
Barrett’s explanation for not hiring Joe Bell, for example, is obviously pretextual, and is
one reason I will not credit any of his self-serving testimony and post-hoc explanations regarding
his decision not to recall James Maxwell and Kramer. Barrett testified he did not offer Bell
employment because Bell was already working. However, he did not know whether or not other
painters to whom he offered employment were working when he offered them employment. 10
Moreover, Barrett knew that in the past, the seasonal painters had obtained releases from their
employers in order to do seasonal work for Respondent. Barrett did not have any issues with the
quality of Bell’s work, and was more familiar with Bell’s work than with some of the painters he
hired instead of Bell, Tr. 360-61.
15
Barrett offered the following reasons, in addition to his protected activity, for not hiring
James Maxwell: Poor work ethic, sloppy work, sitting while painting and marijuana use off the
clock in 2012 or 2013.11
As Respondent points out in its brief, uncontradicted testimony is usually credited. 20
However, there is no obligation for a judge to credit a witness’ uncontradicted testimony when
other circumstances indicate that it is unreliable, Aero, Inc., 237 NLRB 455, fn. 1 (1978);
Operative Plasterers’ & Cement Masons International Association, Local 394 (Burnham Bros.,
Inc.) 207 NLRB 147 (1973). I decline to credit Pat Barrett’s testimony in this regard in that
Maxwell worked for years for Billy Martin and was recalled year after year. Martin did not 25
recall painters whose work was substandard. Moreover, neither Barrett nor any other agent of
the Cardinals made such claims at the February 21, 2018 meeting on the discriminatees’
grievance. To the contrary, Matt Gifford, the Cardinals vice-president of operations stated all 4
discriminatees were eligible for rehire.
30
10 The fact that Respondent did not violate the Act because it ultimately offered to recall Thomas
Maxwell does not establish that it did not violate the Act with regard to his brother and Eugene Kramer.
It is well established that an employer's failure to take adverse action against all union supporters, or
employees who engaged in other protected activity, does not disprove discriminatory motive, otherwise
established, for its adverse action against a particular employee, See NLRB v. Nabors, 196 F. 2d 272, 276
(5th Cir. 1952); Master Security Services, 270 NLRB 543, 552 (1984); Volair Contractors, Inc. 341
NLRB 673, 676 fn. 17 (2004). Moreover, the Board found that Respondent violated the Act in failing to
recall Joe Bell for the same reason that failed to rehire or recall James Maxwell and Eugene Kramer.
Finally, G.C. Exh. 9 (a)and (b) make it abundantly clear that on January 18, 2018, Hosei Maruyama was
conveying to Thomas Maxwell that the filing of internal union charges was the reason that Respondent
was not as of that date going to recall all 4 discriminatees in 2018. After Bell filed the unfair labor
practice charge in this case, Respondent obviously changed its mind about recalling Thomas Maxwell.
11 Barrett also testified that James Maxwell normally had marijuana in his car or carried it with him.
However, he did not give a time frame for these observations. Billy Martin either was unaware of this or
recalled James Maxwell to work year after year anyway.
-
JD–22–20
9
There is no evidence that Maxwell was ever disciplined or even counseled for his work at
Busch Stadium; there is also no evidence that Barrett ever complained to Martin about
Maxwell’s alleged shortcomings. Additionally, Barrett did not mention marijuana use as a
reason he did not recall Maxwell at the February 2018 grievance hearing or in his affidavit to a
Board agent. I conclude these matters, even if valid, did not become issues for Barrett until5
Maxwell signed internal union charges against him.
With regard to Eugene Kramer, Barrett relied on an incident in 2012 when Kramer
allegedly left paint on the floor of Artistry Florists when working for non-union contractor
Robert Shamel.12 Barrett testified that “we” had to repaint a lot of the job. Shamel, however, 10
testified that Barrett did not work with Kramer on that job. Furthermore, it was Shamel and
Shamel’s brother, who owned the building, who cleaned up after Kramer; not Barrett, Tr. 250-
51. Shamel did not testify about telling Barrett about this incident; thus, it is unclear when
Barrett became aware of it. Thus, I do not credit Barrett’s testimony that he did not recall
Kramer on account of Kramer’s work at Artistry Florist, or that this was a factor in his decision. 15
As noted before he did not assert that Kramer’s work was substandard at the February 2018
grievance meeting or mention Artistry Florist. If those were reasons for which he failed to recall
Kramer, Barrett would have mentioned these considerations.
Another reason I decline to credit Barrett’s testimony is his assertion that he saw Kramer 20
and James Maxwell smoking marijuana together in an automobile in 2012 or 2013, Tr. 323.
Kramer did not work for the Cardinals or at Busch Stadium until 2014, Tr. 149, 379. Moreover,
Barrett did not mention marijuana use as a reason for not recalling either Kramer or James
Maxwell in his Board affidavit or at the February 21, 2018 grievance proceeding, Tr. 381-82, R.
Exhs. 9 and 10.25
As in the case of James Maxwell, there is no explanation as to why Billy Martin recalled
Kramer if his work was substandard. From this I conclude it was not. Also, as in the case of
Maxwell, there is no evidence that he was ever disciplined or counseled for poor work,
marijuana use or anything else while working at Busch Stadium. As in Maxwell’s case, Barrett’s 30
affidavit doesn’t give marijuana use as a reason for not hiring Kramer and very unspecifically
refers to “work performance and availability.” There does appear to have been some friction
between Kramer and Barrett prior to Barrett becoming foreman. At Tr. 186-89, Kramer testified
that he knew beforehand that if Barrett got the foreman’s job, he would not be rehired. However,
there is no credible evidence as to why Kramer thought this to be the case—other than his 35
assessment of Barrett’s temperament. In summary, I conclude that had not James Maxwell and
Eugene Kramer filed internal union charges against Patrick Barrett, Respondent would have
offered them employment in 2018.
Finally, that Respondent sent James Maxwell and Eugene Kramer a letter on November 40
2, 2017, giving them reasonable assurances that they would be recalled in 2018, belies
Respondent’s affirmative defense. At that point Barrett and Maruyama knew that Billy Martin
12 This testimony is not uncontradicted. Kramer testified that he never worked with Barrett and
denied ever working for Shamel or at Artistry Florists. I have credited the testimony of Shamel that
Kramer did work for him at Artistry Florists. However, Shamel’s testimony detracts from Barrett’s
credibility rather than enhances it.
JD–22–20
10
was retiring in December, yet neither raised any concerns about recalling Maxwell and Kramer.
The Cardinals did not, on November 2, indicate that the new foreman would decide who would
be recalled to work. I find that in order to make out an affirmative defense, Respondent would
have to proffer a credible explanation as to the circumstances by which the reasonable assurances
of continued employment transmitted on November 2 were withdrawn. Respondent must show 5
either that it gave Barrett authority to hire his own crew for nondiscriminatory reasons or that
Maruyama or someone else in the Cardinals hierarchy decided not to recall the discriminatees for
a non-discriminatory reason.
On November 2, somebody in the Cardinals organization believed they had authority to 10
offer continued employment to James Maxwell and Eugene Kramer without getting clearance
from Barrett. In order to make out its affirmative defense, Respondent is obligated to explain
how and why that changed, or otherwise credibly explain the circumstances by which the
assurances of continued employment were withdrawn. It has not done so.
15
Supplemental Conclusion of Law
Respondent violated Section 8(a)(3) and (1) in discharging or failing to recall James
Maxwell to work in 2018 and in failing to recall Eugene Kramer.
20
Remedy
The Respondent, having discriminatorily discharged James Maxwell, must offer him
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the 25
rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010). Respondent shall compensate him for
his search-for-work and interim employment expenses regardless of whether those expenses
exceed his interim earnings, computed as described above.
30
The Respondent, having discriminatorily failed to recall Eugene Kramer, must offer him
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010). Respondent shall compensate him for 35
his search-for-work and interim employment expenses regardless of whether those expenses
exceed his interim earnings, computed as described above.
Respondent shall file a report with the Regional Director for Region 14 allocating
backpay to the appropriate calendar quarters. Respondent shall also compensate James Maxwell 40
and Eugene Kramer for the adverse tax consequences, if any, of receiving one or more lump-sum
JD–22–20
11
backpay awards covering periods longer than 1 year, AdvoServ of New Jersey, 363 NLRB No.
143 (2016).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended135
ORDER
The Respondent, the St. Louis Cardinals, its officers, agents, successors, and assigns,
shall10
1. Cease and desist from:
(a) Discharging, failing to recall, or otherwise discriminating against any employee for
engaging in protected activity, including the filing of internal union charges.15
(b) Impliedly informing employees that they are not being retained or recalled because
they engaged in protected activity.
(c) 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.
20
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 James Maxwell and
Eugene Kramer full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to their seniority or any 25
other rights or privileges previously enjoyed.
(b) Make James Maxwell, and Eugene Kramer whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, in the manner set
forth in the remedy section of the decision. Compensate James Maxwell and Eugene
Kramer for the adverse tax consequences, if any, of receiving a lump-sum backpay 30
award, and file with the Regional Director for Region 14, within 21 days of the date
the amount of backpay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar years.
(c) Compensate James Maxwell and Eugene Kramer for their search-for-work and
interim employment expenses regardless of whether those expenses exceed their 35
interim earnings.
(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 40
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–22–20
12
(e) Within 14 days after service by the Region, post at its St. Louis facility copies of
the attached notice marked "Appendix".14 Copies of the notice, on forms provided
by the Regional Director for Region 14, 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 5
employees are customarily posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, 10
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
copy of the notice to all current employees and former employees employed by the
Respondent at any time since January 18, 2018. 15
(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.
20
Dated, Washington, D.C. May 15, 2020

Arthur J. Amchan25
Administrative Law Judge
30
14 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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JD–22–20
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, fail to recall, or otherwise discriminate against any of you for
engaging in union or other protected concerted activity, including the filing of internal union
charges.
WE WILL NOT inform you implicitly that you are not being offered work due to your protected
activity.
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 James Maxwell and Eugene Kramer
full reinstatement to their former jobs or, if those jobs no longer exists, to a substantially
equivalent position, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make James Maxwell and Eugene Kramer whole for any loss of earnings and other
benefits resulting from their discharge or failure to be recalled or timely recalled, less any net
interim earnings, plus interest compounded daily.
WE WILL compensate James Maxwell and Eugene Kramer for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and WE WILL file a report with the Regional
Director for Region 14 allocating the backpay award to the appropriate calendar quarters.
WE WILL compensate James Maxwell and Eugene Kramer for their search-for-work and
interim employment expenses regardless of whether those expenses exceed their interim
earnings.
JD–22–20
ST. LOUIS CARDINALS, LLC
__________________________________
(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.
1222 Spruce Street, Room 8.302, Saint Louis, MO 63103-2829
(314) 539-7770, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/14-CA-213219 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, (314) 539-7780.