Yuker Construction Co.

National Labor Relations Board - Board Decisions

Aug 30, 2001

335 N.L.R.B. 1072 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
Yuker Construction Co. and Local 247, International
Brotherhood of Teamsters, AFL-CIO. Cases 7–
CA–42275, 7–CA–42849, and 7–CA–43132
August 30, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On October 5, 2000, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
General Counsel filed exceptions1 and a supporting brief.
The Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified.3
The complaint alleged that the Respondent violated
Section 8(a)(1) of the Act by discharging employees
Randy Newberry and Dennis Purgiel for engaging in a
protected concerted discussion regarding their wages,
hours, and working conditions. The judge dismissed the
allegations, finding that the General Counsel failed to
prove that protected concerted activity was a motivating
factor in the discharges, and alternatively that the Re-
spondent would have discharged Newberry and Purgiel
even in the absence of that activity. We agree.
The Respondent operates a commercial hauling busi-
ness that slows down considerably during the winter
months. Out of about 30 drivers, approximately 10–12
are typically laid off during the winter. Around the fall
of 1999, the Respondent arranged to haul merchandise
for Wal-Mart during the upcoming winter in an attempt
to supplement its revenues and avoid layoffs. The Re-
spondent offered this work to its drivers at 32 cents per
mile.
The Respondent provides its employees with Nextel
phones, which allow employees to communicate with
one another or with company headquarters while on the
road. The phones have a private and a group setting. On
the private setting, only the two people holding the con-
versation can hear and participate. On the group setting,
anyone in the Company who has a Nextel can hear and
participate. Anyone with a Nextel can change the setting
from private to group.

1 The exceptions relate only to the judge’s dismissal of allegations
that the Respondent discharged Randy Newberry and Dennis Purgiel in
violation of Sec. 8(a)(1).
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We will modify the judge’s Order in accordance with our recent
decision in Ferguson Electric Co., 335 NLRB 142 (2001).
About December 3,4 while on driving assignments for
the Respondent, Newberry and Purgiel had a conversa-
tion over their Nextel phones. Newberry mentioned that
the Respondent had arranged to haul merchandise for
Wal-Mart. Purgiel said he would not do the work for the
32 cents per mile that the Respondent was offering.
Newberry said he would not do it either and had had
enough “over the road” driving. Purgiel then stated that
it was nearing the end of the season and that all of the
Respondent’s employees would soon be looking for jobs
and signing up for unemployment. Newberry mentioned
that Kelley Wilbur and Ron Steffes, two of the Respon-
dent’s former employees, had started their own business
and needed drivers. Purgiel again stated that all of the
employees would soon be looking for work or seeking
unemployment. At this point, Benny Yuker, the Re-
spondent’s president, came over the Nextel and told
Newberry and Purgiel to go back to the motel in which
they had been staying and get their clothes because they
were “done.” Newberry and Purgiel drove back to the
Respondent’s offices, where Yuker terminated them.
The termination papers, which Newberry and Purgiel
refused to sign, listed the reason for termination as “ac-
tively seeking employment with other companies while
on Yuker payroll.”5
We agree with the judge that the General Counsel has
failed to meet his burden of showing that the Respondent
violated Section 8(a)(1) by discharging Newberry and
Purgiel. The judge found protected Newberry and Pur-
giel’s discussion of the rates of pay the Respondent in-
tended to pay for the Wal-Mart work and their refusal to
work for those rates. He further found, however, that the
General Counsel did not meet his burden under Wright
Line6 of showing that Yuker discharged them for their
protected dialogue.
Rather, the judge found, based on the surrounding con-
text and his credibility resolutions, that Yuker decided to
discharge them based on his mistaken belief that they
4 All dates are in 1999 unless otherwise specified.
5 The Respondent reinstated Purgiel the next day, after he had lunch
with Yuker, discussed the Nextel conversation with him, and explained
that Yuker had misunderstood it. The Respondent did not reinstate
Newberry. The judge found that this was because Newberry never
offered any explanation to Yuker regarding the Nextel conversation and
because Yuker was still upset with Newberry over an unrelated dis-
agreement the previous week.
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir 1981), cert.
denied 455 U.S. 989 (1982).
335 NLRB No. 28
YUKER CONSTRUCTION CO. 1073
were seeking other employment while being paid by him.
In this connection, the judge found that another em-
ployee, who was not discharged, had made the same
complaint that he was unwilling to perform the Wal-Mart
work at the offered low rate. Regarding Yuker’s misun-
derstanding of the conversation, the judge further found
that when Purgiel told Yuker that he was just talking
about supplementing his income and wanted to return to
work, Yuker agreed that he should immediately return to
work for the Respondent. Noting that Newberry had an-
grily confronted Yuker about another matter, the judge
found that Newberry remained discharged because he
refused to explain his behavior and ask for forgiveness.
The judge found that, in discharging Newberry and
Purgiel, Yuker “shot from the hip” and acted hastily on a
mistaken belief, but that such conduct does not constitute
an unfair labor practice. We agree. See, e.g., Manimark
Corp. v. NLRB, 7 F.3d 547, 552 (6th Cir. 1993) (em-
ployer may discharge employee for any reason, whether
or not it is just, as long as it is not for protected activity
(citing NLRB v. Ogle Protection Serv., 375 F.2d 497, 505
(6th Cir. 1967), cert. denied 389 U.S. 843 (1967))).
The judge also found, and we agree, that Newberry
and Purgiel’s discussion of their plans in searching for
alternative employment in the winter months does not
constitute concerted conduct within the meaning of the
Act. There is no evidence that their talk was “engaged in
with the object of initiating or inducing or preparing for
group action or that it had some relation to group action
in the interest of the employees.” Meyers Industries
(Meyers II), 281 NLRB 882, 887 (1986) (quoting Mush-
room Transportation Co. v. NLRB, 330 F.2d 683, 685
(3d Cir. 1964) (if the only purpose is to advise an indi-
vidual what he could or should do without involving oth-
ers, then it is not concerted activity)), affd. sub nom. Prill
v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied
487 U.S. 1205 (1988). See, e.g., Plumbers Local 412,
328 NLRB 1079, 1083 (1999) (individual’s discussion
with other clericals about wages and pensions not con-
certed activity). Compare Whittaker Corp., 289 NLRB
933 (1988) (employee’s protest of suspension of wage
increase was clearly one to initiate group action).
In light of this analysis, we disagree with our dissent-
ing colleague’s application of NLRB v. Burnup & Sims,
Inc., 379 U.S. 21 (1964), which applies to terminations
for alleged misconduct occurring during the course of
protected concerted activity. Yuker’s mistaken belief
involved the significance of unprotected activity, one
particular aspect of the conversation between Newberry
and Purgiel that was not, in our view, intertwined with
any protected activity. This case is quite unlike the situa-
tion in Burnup & Sims, where the employer’s mistaken
belief concerned statements supposedly made by em-
ployees in the course of soliciting another employee to
join the union. The “misconduct” there clearly arose out
of protected activity. Here, it did not, and thus the dis-
charges had no potential deterrent effect on the exercise
of Section 7 rights.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Yuker
Construction Co., Gaylord, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following as paragraph 2(c).
“(c) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.”

MEMBER WALSH, dissenting.
Contrary to my colleagues, I would find that the Re-
spondent discharged Randy Newberry and Dennis Pur-
giel in violation of Section 8(a)(1) of the Act.
As explained more fully in the judge’s decision, the
Respondent’s commercial hauling business is seasonal
and slows down significantly each winter. Although the
Respondent performs some snow removal, this work is
insufficient to keep all of its drivers busy. Consequently,
the Respondent typically lays off about 10–12 of its 30
drivers each winter.
To provide additional work and avoid layoffs, around
the fall of 1999, the Respondent arranged to haul mer-
chandise for Wal-Mart during the upcoming winter. The
Respondent offered this work to its drivers at 32 cents
per mile. Because the snow removal business histori-
cally had been insufficient to compensate for the slow-
down in other hauling work, the drivers’ likely alterna-
tives to Wal-Mart work were to risk being laid off or to
find interim employment elsewhere during the winter
months.
About December 3,1 drivers Randy Newberry and
Dennis Purgiel had a conversation over their Nextel
phones. They discussed the Respondent’s arrangement
to haul merchandise for Wal-Mart during the winter.
Both Newberry and Purgiel stated that they were unwill-

1 All dates are in 1999 unless otherwise specified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
ing to do the work for 32 cents per mile, the amount the
Respondent had offered. Purgiel, who had worked for
the Respondent since August 1996, and therefore had
experienced several slow seasons, pointed out that the
slow season was approaching and that the Respondent’s
employees would soon be looking for other jobs and
signing up for unemployment. Newberry mentioned that
two of the Respondent’s former employees (Kelley
Wilbur and Ron Steffes) had started their own business
and needed drivers. Purgiel reiterated that employees
would soon be looking for other jobs and signing up for
unemployment.
At this point, Benny Yuker spoke over the Nextel.2 He
told Newberry and Purgiel to go back to the motel be-
cause they were “done.” Yuker terminated Newberry and
Purgiel that day. Both Newberry and Purgiel refused to
sign their termination notices, which stated that they had
been “actively seeking employment with other compa-
nies while on Yuker payroll.”3
In analyzing the December 3 Nextel conversation, the
judge found that the portion relating to the wages offered
for Wal-Mart work and refusal to work for those wages
was protected concerted activity, but the portion relating
to imminent layoffs and the need to obtain interim em-
ployment was not. I disagree that the conversation can
be separated into two distinct portions, one of which is
protected and one of which is not. As Yuker testified
without contradiction, the very reason the Respondent
obtained the Wal-Mart work was to have “an additional
source of revenue for the drivers” during the winter
months, in order to avoid the layoffs that otherwise
would be necessary. Purgiel, whose testimony the judge
generally credited, testified that his discussion with

2 The judge did not make an express finding that Yuker heard New-
berry and Purgiel discussing Wal-Mart work. The record, however,
amply supports such a finding. Although Yuker testified that he did not
recall hearing Newberry and Purgiel discuss Wal-Mart work over the
Nextel, he conceded he did hear them discuss “peddling freight,” which
he “could construe . . . would point to the Wal-Mart job.” Furthermore,
as the judge noted, Yuker stated in his prehearing affidavit that he did
hear Newberry say he would not do Wal-Mart work. Yuker testified at
the hearing that the affidavit was true at the time he made it and that he
must have remembered, at the time he prepared the affidavit, hearing
Newberry make this statement. Finally, although the judge found that
the Nextel transmission switched from private to group mode after
discussion of Wal-Mart work was over, it is clear from Purgiel’s testi-
mony (which the judge generally credited) that Purgiel did not know
for certain when the Nextel was switched into group mode. He simply
realized he was on group mode when he heard Yuker speak. Similarly,
neither Yuker nor Newberry pinpointed the precise time when the
Nextel switched from private mode to group mode. Thus, the evidence
supports a finding that Yuker heard Newberry and Purgiel discussing
Wal-Mart work as well as discussing layoffs and the need for interim
employment.
3 Yuker reinstated Purgiel the next day, but never reinstated New-
berry.
Newberry regarding the slow season and the upcoming
layoffs “all start[ed] with this working for Wal-Mart.”
Thus, I disagree that Newberry’s and Purgiel’s discus-
sion of the Wal-Mart work can be separated from their
discussion of the upcoming slow season and possible
alternate employment for the winter months. Rather,
these issues were inextricably intertwined and part of a
single conversation. I would find that the conversation
was protected concerted activity in its entirety.
First, the conversation was concerted. I disagree with
my colleagues that there is no evidence that the discus-
sion of the upcoming slow season was “engaged in with
the object of initiating or inducing or preparing for group
action or that it had some relation to group action in the
interest of the employees.” Meyers Industries (Meyers
II), 281 NLRB 882, 887 (1986) (quoting Mushroom
Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir.
1964)), affd. sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). As
noted above, the two employees’ discussion of the slow
season cannot be divorced from their discussion of Wal-
Mart work, which the judge found was protected con-
certed activity. Furthermore, “the object of inducing
group action need not be express.” Whittaker Corp., 289
NLRB 933 (1988). Here, Newberry and Purgiel ex-
pressed their shared unwillingness to perform Wal-Mart
work for the rates offered by the Respondent and dis-
cussed their alternatives to performing that work: seeking
unemployment compensation or finding interim em-
ployment elsewhere. I would find their entire discussion
to be concerted activity.4
Second, the conversation had a protected purpose: dis-
cussion of their terms and conditions of employment. See,
e.g., Kinder-Care Learning Centers, Inc., 299 NLRB 1171
(1990) (Section 7 of the Act protects the right of employ-
ees to engage in activity for their mutual aid and protec-
tion, “including communicating regarding their terms and
conditions of employment”). Here, those terms included
low wages and an imminent slowdown in available work.
Therefore, I would find that the discussion between New-
berry and Purgiel was protected activity.
4 This case is distinguishable from Plumbers Local 412, 328 NLRB
1079 (1999), cited by my colleagues. In that case, a single employee
complained to other employees that she was not eligible for a particular
pension plan in which certain other employees participated. The Board
adopted the judge’s conclusion that the complaining employee’s activ-
ity was not concerted. In reaching her conclusion, however, the judge
emphasized that there were no complaints by employees “to each
other” and that “no one else was in the same or similar position to” the
complaining employee. 328 NLRB at 1086. In this case, Newberry
and Purgiel were similarly situated and did complain to each other
about the upcoming slowdown and their unwillingness to perform Wal-
Mart work for the wages the Respondent was offering.
YUKER CONSTRUCTION CO. 1075
Because I find the conversation to be protected con-
certed activity in its entirety, I disagree that this case is
governed by Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). The judge found that Yuker terminated New-
berry and Purgiel because Yuker mistakenly believed,
upon overhearing their conversation, that they were seek-
ing other employment while performing work for him.
The standard to apply in determining whether an em-
ployer has violated the Act by discharging an employee
for alleged misconduct arising out of protected activity is
set forth in NLRB v. Burnup & Sims, Inc., 379 U.S. 21
(1964). Under Burnup & Sims, Section 8(a)(1) is vio-
lated “if it is shown that the discharged employee was at
the time engaged in a protected activity, that the em-
ployer knew it was such, that the basis of the discharge
was an alleged act of misconduct in the course of that
activity, and that the employee was not, in fact, guilty of
that misconduct.” 379 U.S. at 23. The Supreme Court
explained:
Otherwise, the protected activity would lose some of its
immunity, since the example of employees who are
discharged on false charges would or might have a de-
terrent effect on other employees. . . . A protected activ-
ity acquires a precarious status if innocent employees
can be discharged while engaging in it, even though the
employer acts in good faith. It is the tendency of those
discharges to weaken or destroy the § 8(a)(1) right that
is controlling.

379 U.S. at 23–24.

Under Burnup & Sims, when an employee is discharged for
misconduct arising out of protected activity, the employer
has the burden to show that it held an honest belief that the
employee engaged in misconduct. Once the employer es-
tablishes that it had such a belief, the burden shifts to the
General Counsel to show that the misconduct did not in fact
occur. See, e.g., Pepsi-Cola Co., 330 NLRB 474 (2000).
Applying the Burnup & Sims analysis here, as noted
above, I would find that Newberry and Purgiel were en-
gaged in protected concerted activity. They were dis-
cussing their refusal to do Wal-Mart work during the
slow season at the proposed wage and their alternatives
to doing that work. Yuker overheard their conversation.
Therefore, he knew of their protected concerted activity.
The judge found that Yuker misunderstood their state-
ments regarding potential interim employment and,
based on that misunderstanding, discharged them in the
belief that they were actively seeking outside employ-
ment while working for him. Thus, the Respondent car-
ried its burden to prove it held an honest belief that New-
berry and Purgiel engaged in misconduct. As the judge
judge concluded, however, Yuker was mistaken, and
Newberry and Purgiel were not actively seeking outside
employment on the Nextel. Accordingly, I would find
that the General Counsel carried his burden to prove that
Newberry and Purgiel were not guilty of the misconduct
for which they were terminated. Therefore, under Bur-
nup & Sims, I would find that the Respondent discharged
Newberry and Purgiel in violation of Section 8(a)(1).

Joseph P. Canfield, Esq. and Donna M. Nixon, Esq., for the
General Counsel.
Douglass A. Witters, Esq. (Pollard & Albertson, P.C.) of
Bloomfield Hills, Michigan, for the Respondent.
Paul Jacobs, Esq., of Detroit, Michigan, for the Charging Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge.
This case involves 1 alleged illegal no-solicitation rule; 19 alle-
gations of conduct violating Section 8(a)(1) of the National
Labor Relations Act, 1947, principally threats and interroga-
tions; 1 allegation of withholding of holiday pay (1 allegation
in Case 7–CA–43196 was withdrawn during the hearing); 3
allegations of discharges because of the employees’ concerted
and protected activities; and 2 persons who have particularly
little regard for the truth, the husband and wife owners of Re-
spondent Yuker Construction Co.1
Jurisdiction was conceded. Respondent, a Michigan corpo-
ration, with an office and facility in Gaylord, Michigan, is en-
gaged in commercial hauling of earth and related materials and,
during the colder winter months, in snow removal. During
1998, Respondent purchased and received at its Gaylord facility
goods valued in excess of $50,000 directly from suppliers lo-
cated outside Michigan. I conclude, as Respondent admits, that
it is engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that Local 247, International Broth-
erhood of Teamsters, AFL–CIO (Union), is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
My harsh assessment of the credibility of Benny, president,
and Sue Yuker, secretary and treasurer, and their son, Robert,
stems from two facts. Benny testified that he had not made
various statements at an employees’ meeting that he called in
the summer of 1999. Robert initially recalled nothing of that
meeting. Unfortunately for them, Benny’s comments had been
taped by one of the employees, showing that Benny lied.
Respondent’s former foreman, Bill Morey, a witness called by
Respondent, testified on cross-examination that Benny and
Robert had, indeed, or may have made a number of the threats
that the complaint had alleged, not only at the meeting but also
on other occasions. There was no evidence as strong as the tape
discrediting Sue, but her testimony was just as indisputably
false as if there had been a recording. She testified that the

1 This case was tried in Grayling, Michigan, on August 1–2, 2000.
The charge in Case 7–CA–42275 was filed on August 5, and amended
on September 29, 1999; the charges in Cases 7–CA–42849 and 7–CA–
43132 were filed on March 8 and June 12, 2000, respectively. The
second consolidated complaint was issued on July 12, 2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
search for the motor vehicle records of employees had been
merely normal, with the submission of the names of all the
drivers to her insurance agent. Brenda Thorpe, a temporary
secretary-clerk in her office, was called on rebuttal. She had
nothing to gain from her testimony and plenty to lose, the pos-
sibility that she would not be employed again. She testified that
Sue told her specifically to get the motor vehicle record of
driver Brian Bedford, knowing that his driving record was so
poor that he was uninsurable, giving her the excuse she needed
to terminate him. In addition, Sue’s testimony regarding the
alleged “quit” of driver Kelly Wilbur in August 1998, was so
patently false as to indicate that she was willing to say anything
to salvage Respondent’s and her husband’s position in this
proceeding. Finally, I am also convinced that Robert was driven
by the same need, to protect his father, that he feigned a total
lack of memory of the meeting and that he committed the very
violations of which his father was accused, all in a plan to dis-
courage the employees’ support of the Union by repeatedly
threatening the loss of their jobs.
I thus have not credited Benny, Sue, or Robert at all, except
when they testified against the interests of Respondent or when
their testimony was corroborated by unimpeachable sources or
when their testimony, in light of all other facts, appeared prob-
able. Because of their purposeful misstatements of fact, I have
often found the very opposite of what they testified to, Walton
Mfg. Co., 369 U.S. 404, 408 (1962). To the contrary, I gener-
ally found that the employees, both past and present, testified
accurately. Some, admittedly, had something to gain by their
testimony and thus a reason to fabricate. Others, however, did
not. Dennis Purgiel, a current employee, testified against his
interest by stating that he suffered no damages as a result of
Respondent’s discharge of him. I have thus credited him,
wholly independent from, but certainly consistent with, Board
law, which recognizes that the testimony of current employees
that contradicts statements of their supervisors is likely to be
particularly reliable. Flexsteel Industries, 316 NLRB 745
(1995), enfd. mem. 83 F.3d 419 (5th Cir. 1996). The testimony
of current employees that is adverse to their employer is “given
at considerable risk of economic reprisal, including loss of
employment . . . and for this reason not likely to be false.”
Shop-Rite Supermarket, 231 NLRB 500, 505 fn. 22 (1977).
John Gorka, Ronnie Steffes, and Timothy Caverson had volun-
tarily left their jobs and had no interest in whether any of the
allegations were found true or not, and their testimony is cred-
ited.
Although sometimes I had difficulty finding that the General
Counsel’s witnesses accurately perceived those events, particu-
larly regarding the timing of some of them, I have attempted to
put the events into a context that is most probable. Furthermore,
although sometimes their testimony was not wholly consistent,
I find that they did not make the events up from nothing. Thus,
despite the fact that Benny had a surgical proceeding involving
the implant of a stent in a vessel leading to or from his heart on
July 21, 1999, and he testified that he remained in the hospital
until the evening of July 22, and insisted that he did no work
and made no telephone calls for 2 weeks, I find that Benny’s
claim that he stayed home for 2 weeks was not corroborated by
either Sue or Robert. Furthermore, in light of the employees’
testimony, I find that he disregarded doctor’s instructions and
conducted some business on July 22, and the following days,
using his telephone while recuperating in the hospital and at
home after his surgery and traveling within a week of his sur-
gery. Two of the employees signed union authorization cards
on Thursday, July 22, the date that appears of those cards, and
would have recalled with accuracy the threats that resulted that
day from their union activities. I thus agree generally with the
timing recalled by most of the employees. Even if I am wrong,
the events happened as narrated by the present and former em-
ployees, but on slightly different days.
In making these and other credibility findings, I have fully
reviewed the entire record and carefully observed the demeanor
of all the witnesses. I have also taken into consideration the
apparent interests of the witnesses; the inherent probabilities in
light of other events; corroboration or the lack of it; and the
consistencies or inconsistencies within the testimony of each
witness and between the testimony of each and that of other
witnesses with similar apparent interests. Testimony inconsis-
tent with or in contradiction to that on which my factual find-
ings are based has been carefully considered but discredited.
See, generally, NLRB v. Walton Mfg. Co., supra at 408. Where
necessary, however, I have set forth the precise reasons for my
credibility resolutions, bearing in mind the oft-quoted advice:
“It is no reason for refusing to accept everything that a witness
says, because you do not believe all of it; nothing is more
common in all kinds of judicial decisions than to believe some
and not all.” NLRB v. Universal Camera Corp., 179 F.2d 749,
754 (2d Cir. 1950).
The first alleged unfair labor practice involves no issue of
credibility. Respondent admits that it maintained since Febru-
ary 5, 1999,2 the following rule:

In order to prevent disruption of operations, interference with
work and inconvenience to other employees, solicitation of
any cause or distribution of literature of any kind on Company
premises is not permitted.

This was not a valid no-distribution, no-solicitation rule be-
cause it prohibited employees from talking about the Union
while on break or at lunch and barred distributions, without
limitations. The Act protects the right of employees to solicit in
nonworking areas or during nonworking times. Because Re-
spondent’s rule prohibited all distributions and all solicitations,
including those that the Act protects, it was overly broad and
violated Section 8(a)(1) of the Act. Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945); Our Way, Inc., 268 NLRB 394
(1983); Essex International, 211 NLRB 749 (1974); Stoddard-
Quirk Mfg. Co., 138 NLRB 615 (1962).
In July, most of Respondent’s work was in the Detroit area,
hauling aggregate (stone, sand, and gravel) from Rockwood
Stone in Newport, Michigan, 245 miles from Respondent’s
base in Gaylord, to various highway construction sites. Ten to
fifteen of the drivers were from out of town and stayed at an
Econo Lodge (now a Day’s Inn) (Motel) in Monroe, Michigan.
The campaign to organize the employees started about July 22,
when union representative Scotty Domine stationed himself at a

2 All events occurred in 1999, unless otherwise indicated.
YUKER CONSTRUCTION CO. 1077
market in Newport and solicited union authorization cards.
Wilbur signed one on July 22. That day, Robert called him and
asked whether the union representative had left the area yet.
(Respondent had a Nextel radio or telephone system that was
capable of permitting employees to talk privately with one an-
other on a private channel and permitted Benny or someone
from the company to talk with all the drivers on a public chan-
nel.) Wilbur replied that he did not know. In another call,
Robert asked Wilbur whether he knew who had signed union
cards and threatened that anyone who had signed a card could
take his truck back to the Motel and clean it out because he no
longer had a job. Robert also again asked if Wilbur knew who
had signed cards. Wilbur replied that he did not. Finally, Robert
asked Wilbur who he thought was responsible for Domine be-
ing there. Wilbur again denied knowledge. Benny also called
Wilbur, asking what was going on there. Wilbur said that he did
not understand what Benny was referring to. Benny mentioned
Domine and said that anyone who signed a card would be fired:
he would close Respondent’s business, sell everything, and
retire. Respondent would never have a union. Robert called
again, to ask when Wilbur was going to return to Gaylord, be-
cause Robert had figured out who had started the organizing
drive: it was Bedford and Dennis Diehl. Wilbur would take
them back to Gaylord “because they were all done.” However,
when Wilbur returned to the Motel to pick up the two drivers,
Robert was there talking with them; and Robert said that they
were not going home with Wilbur.
On the same day, Gorka (who had signed a card) returned to
the Motel and met Robert, who asked whether he had heard
Benny on the group radio. Gorka replied that his group phone
was broken. Others, however, heard Benny, who advised the
drivers that anybody who signed a card might as well park his
truck and clean it out “cause we were done.” According to Bed-
ford, Benny said that anybody talking to Domine or any other
union representative should take their trucks to the boat dock,
where Respondent stored its trucks and performed mainte-
nance, and find some other way to get home because they could
consider themselves fired; and that, if the Union was voted in,
he was going to auction everything and close Respondent’s
doors. No matter whom I credit, I find that Benny threatened
union supporters with discharge.
Robert told Gorka that there “needs to be a bunch of people
fired today for signing Union cards.” Gorka said that Respon-
dent could not do that. Besides, Respondent had a good bunch
of guys. What Benny needed to do was to meet with the driv-
ers, because he had not kept the promises of benefits that he
had made to them. Gorka then admitted that he had signed a
card. On Friday, Benny called and asked whether he had signed
a card. Gorka again admitted that he had. Benny then fired him,
saying that he did not need him and could not trust him. Noting
that he had loaned him money, Benny asked how Gorka could
have done this, with Benny just having heart surgery, and
added that he knew who had signed union cards. Gorka said
that he would tear up his card and insisted that perhaps all
could be solved with a company meeting. Gorka asked what he
should do with the company truck, and Benny replied that he
could take it home with him “for now,” which indicated to
Gorka that he still had his job. The following Monday, how-
ever, Benny called Gorka to tell him that he could not trust
Gorka, because Gorka tried to sign up the mechanic and two of
his helpers (which Gorka did the previous Thursday, in an at-
tempt, he testified, to save face) Gorka could park his truck at
the boat dock, meaning that he was discharged. Benny contin-
ued that there would never be a union at the company; he
would close the doors before he “would ever see a union come
into this company.” Gorka said that what he had done was a
joke, that the “union cards” were actually index cards. Benny
then said that Gorka could take his truck home and added that
he would schedule a company meeting.
On Sunday, July 25, Wilbur was in his room at the Motel
with Steffes when Robert walked in, holding a legal pad. He
said that he had a list of the names of drivers who had signed
cards; and he was going to figure out a legal way to “get[. . .]
rid of these folks,” either by firing them or laying them off.
Respondent was not going to have a union. On July 27, before
the meeting, Morey told Wilbur that he had spoken to both
Benny and Robert, who had decided how they were going to
handle “the union thing” legally: they were going to pick a day
when all the employees would be laid off and then they would
select for recall those drivers who, they believed, had not
signed cards.
On Tuesday, July 27, Respondent held a meeting of the driv-
ers at the Motel. Whether it was denominated as “mandatory,”
as most of the employees testified, the employees were clearly
expected to attend and were paid for their time. (Respondent
contends that this meeting took place on the following Tuesday,
August 3, but there was no independent corroboration of this
fact. The meeting was held in a conference room, for which,
one would think, Respondent was charged for rental; but no
receipt for the expense was offered.) Benny testified that he
called the meeting to explain to the employees that his health
and his heart procedure had caused him to think about whether
to remain in business and to answer the employees’ concern
about the presence of appraisers whom Benny had (allegedly)
hired to survey his fleet of equipment to determine its value for
sale. Thus, according to him, the meeting began:

A. I explained why the appraise[r]s were around and
what was being done and what I was looking at, my op-
tions because that’s what I was there for.
Q. And what did you explain your options were?
A. Why the stuff was being appraised, if I was going
to sell out. We’re going to liquidate the assets or if we’re
going to continue in business. We were looking at the dif-
ferent options we had in front of us.
Q. Okay. So do I understand you to say that the union
was never mentioned in that meeting or you don’t remem-
ber if it was mentioned?
A. I don’t remember if it was mentioned. I didn’t
mention the union.

Benny avoided, on direct examination, unequivocal denials.
For example, asked by his counsel whether he said that he did
not want the Union and that he was going to auction Respon-
dent’s equipment and shut the doors if the employees voted in
the Union, Benny testified: “I went in and I told them exactly
what was going on.” He was more responsive on cross-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
examination. Then, he denied saying “if you get a union, we’ll
close the doors and sell everything,” that “if they [the drivers]
got a union, they all would be out of jobs,” that he “didn’t know
why they wanted a union,” that “they should have come to
[Benny] with their problems instead of going to the union,” and
that “where are your union reps now,” as the employees had
testified. Only after he heard the tape did Benny reluctantly
admit that he may have said in a different conversation, not at
the meeting, that, if the Union came in, he would close Re-
spondent’s doors.
In truth, Benny arrived late and stormed into the meeting, at-
tended by about 30 drivers. The following occurred:

Benny Yuker You guys want a union, make up
your minds. I don’t[.]
We’re gonna have a union, then I’m selling. [Indis-
cernible] certainty.
Unknown [Indiscernible]
Benny Yuker It does when you do what you’s
have done. It’s underminded. I tell you right now you done
it the wrong way. I’m serious
Unknown [Indiscernible]
Benny Yuker I have health reasons. I know. My
health. I’m not gonna tolerate it and put up with what’s
been going on. My health won’t take it.
I’ve got 12 years in this company and I’ll sell the god
damn thing. I’ll cash out and I could live happily ever after
and you’re the ones who are gonna have to work.
Unknown Can I speak
Benny Yuker Yep
Unknown [Indiscernible]
Unknown Number one.....[Indiscernible]...what
Benny Yuker Did the union straighten out your
vacation pay? regarding the union.
Unknown What did I just say Benny
Benny Yuker Did the union get it straight. Did
the union guy do anything for you?
Unknown Please, I wish we could please just forget
the union
Benny Yuker Well, its pretty hard for me to
forget it. You’s are the ones who brought it up
Unknown You told me you think the union guy could
come in here and run you over and bowl you over and take
over your company...number 1 that is not true. Number 2
we are the ones that are being walked over and bowled
over by things [Indiscernible] going in and coming out of
the office. All we need is to get with you like grown men
and have a man to man talk
Benny Yuker That’s what you should have
done then
Unknown We tried
Unknown This is what we have to do to get it
Benny Yuker Maybe you didn’t try
Unknown We can’t change that. We’re here right now
Unknown Remember when we asked you for . . . [In-
discernible]
Benny Yuker I don’t care if you’re for it or
against it. There’s not gonna be a union at Yuker Con-
struction. There’s not going to ever be.
Unknown Oh I know that
Benny Yuker I’ll tell you that right now.
There’ll be an auction sale real fast.

After this, the session turned into a question-and-answer ses-
sion, with the employees complaining about the benefits that
they did not have, such as a 401(k) plan, even though some had
been promised. Benny did not reply, other than to say that he or
Sue would get answers to the employees in a few days. Benny
passed out sheets of paper, or at least they were available at the
front of the room, with the sheet divided by a line down the
middle. The drivers were instructed to write the good things
about Respondent on the left side and the bad things or things
that they would like to have changed on the right. Benny was
going to take the sheets home and was going to answer each
and every one of the employees individually. The sheets did not
have to be signed, but most of the employees signed, anyway.
Within a day or two of the meeting, probably on Wednesday,
Robert sent six to eight drivers to work in St. Helen, north of
Gaylord, but he also said that he might need them back in the
Detroit area that Saturday. Wilbur requested that, if that was
Robert’s plan, he should tell the men on Thursday so, on Fri-
day, they could bring their clothes and leave from St. Helen to
go to Detroit. Despite Wilbur’s request, Robert announced only
on Friday that the men were needed in Detroit for work on
Saturday. Wilbur complained that Respondent never told them
and that they did not have extra clothes. Benny then called, and
Wilbur complained that it would be illegal for the men to drive
all the hours that they needed to go home, get their clothes, and
drive to Detroit; so Benny told him to drive the trucks to Gay-
lord and park them. He was going to sell them anyway and find
a new job. Wilbur said that he would drive down to Detroit.
Benny told Wilbur: “Anytime you get a wild hair up your ass
you pull this kind of stunt.” Wilbur said that “we had nothing to
do with the union,” but Benny repeated his orders and his threat
to sell the trucks, adding that “[t]here wouldn’t be a union.” In
August, Wilbur and Steffes quit; and, after that, Robert threat-
ened Randy Newberry and Purgiel that if the employees voted
in the Union, Benny would close Respondent’s doors.
With the exception of a few allegations, this completes my
recitation of the various allegations that do not require mone-
tary relief—unlawful interrogations, accusations of disloyalty,
threats to discharge union supporters, threats to sell and close
Respondent’s business and discharge all the employees, threats
of unspecified reprisals, solicitation of grievances and promises
of benefits, implications that it would be futile to select the
Union as their bargaining representative because there would
never be a union at Respondent, and the creation of the impres-
sion that the employees’ activities were the subject of surveil-
lance because Robert knew who had signed union cards. I con-
clude that Respondent violated Section 8(a)(1) of the Act in
each respect.
On August 6, Wilbur decided to quit. He was told that he had
to sign a quit sheet in order to get his last paycheck. He went to
Respondent’s office to pick up his check on August 20, but his
YUKER CONSTRUCTION CO. 1079
final vacation payment was not on it. Employees earned 1 week
of vacation as of the first anniversary of their employment.
After an employee was employed for 3 years, Respondent paid
2 weeks of vacation. A week’s vacation pay was computed by
dividing the regular and overtime hours worked in the year
prior to the employee’s request by 52 (the request could be
made at any time) and then paying for that amount by multiply-
ing the hours by the employee’s wage rate. Wilbur had already
received 1 week’s vacation pay in February (his anniversary
date was January 30). Sue had no explanation for the omission
of Wilbur’s vacation pay on August 20. Failing to get an an-
swer after several efforts, Wilbur was finally told by Sue on
September 4, that she did not think that he deserved the vaca-
tion payment because of the way that he had quit and that the
payment was a benefit for current employees. Wilbur then pro-
tested to Benny, who did not think that Wilbur should be paid
because he was an “instigator” for the Union and had gone to a
union meeting.
At the hearing, Respondent’s reason for refusing to pay
Wilbur was that Sue “discovered” sometime after January
1999, that Respondent erroneously paid Wilbur a vacation
benefit in January because “it came to our attention that he had
quit in August of ‘98.” However, she had earlier testified that
Wilbur announced to her personally that he quit, so her “dis-
covery” was a fabrication. Besides, as will be seen, Respondent
was careful to protect its pennies. When Newberry damaged
one of Respondent’s trucks and made private phone calls on
Respondent’s phone, Benny was quick to deduct the amounts
from the his paycheck. Yet Respondent never thought to ask for
a return of, or deduct, the erroneously paid vacation check
amounting to in excess of $500 that it had given to Wilbur in
February 1999. Finally, as the counsel for the General Counsel
explored Wilbur’s payroll records to show that he had not quit
in either August 1998, or January 1999, and that his testimony
was truthful, Sue stretched facts and surmises to the breaking
point, eliminating the possibility of a winter thaw and lack of
snow to explain the fact that Wilbur had a slight reduction of
hours in February 1999, without record support or corrobora-
tion, or that Wilbur was engaged in different work in August
1998, in order to support her claim that Wilbur had to have quit
working, rather than merely having no work to do.
I find that Wilbur did not quit in August 1998, although he
intended to, because he had a problem at home with his daugh-
ter and did not want to work out of town, as he had in the past.
Benny, however, insisted that Wilbur did not have to quit, that
Benny needed some more help in the shop in Gaylord, and that
Wilbur could work there. Wilbur asked to take a week off, and
took his vacation then for about 5 to 7 days. He returned, but
worked only 2 or 3 days, when Benny sent him back on the
road. Respondent’s payroll records, which show that he was
paid for work and for vacation during that period, are consistent
with Wilbur’s testimony. Respondent contended that it took
away its truck no. 151, a new truck assigned to senior employ-
ees, because Wilbur was a new employee who had to “re-earn
[his] stripes.” In fact, when Benny needed Wilbur to drive, he
was first assigned to a job doing concrete work and had to drive
a truck suited to that job. Then he was assigned to a job in
Grand Rapids and, within 2 weeks of his return to work, he was
reassigned his original truck, showing that he was still a senior
employee, entitled to the newest of Respondent’s equipment.
In no other term and condition of employment was he treated
as an employee who had quit and was newly rehired. Contrary
to Respondent’s practice of always requiring an employee to
fill out a termination slip stating that he had quit before he
could obtain his last paycheck (a fact that Benny loudly denied
from counsel table while Sue was testifying), there was no re-
cord that Respondent asked Wilbur to fill out any such form. A
mistake, testified Sue. Contrary to Respondent’s practice, there
was no indication in Respondent’s records of Wilbur’s em-
ployment history that he had interrupted his employment in any
way. There was no record in Respondent’s records that it con-
sidered that he quit at any time, and his date of hire on all his
payroll records indicated January 30, 1996, never changed
when he “quit” and was “rehired.” Mistakes, testified Sue. His
health and supplemental health insurance, which he would not
be entitled to as a new employee, never lapsed; and Respondent
never discontinued it. Benny’s claim that there was no time to
cancel it was unreal. Wilbur was paid for Labor Day, despite
the fact that, had he quit, he would have been employed for
about 20 working days, far fewer than the 90 working days (a
day had to be more than 8 hours) that he needed to be paid
holiday pay. In January 1999, Wilbur was paid for a week’s
vacation benefit. If he quit the previous August, he would have
been employed for only 5 months, far less than the year that he
needed to be paid that benefit. That payment, too, Sue claimed,
was a mistake. I find no mistakes. Respondent’s records were
accurate. Sue’s testimony was false. Wilbur was owed his vaca-
tion pay when he asked for it in January because he had not
earlier quit his job.
Respondent also relies on the fact that Wilbur quit on Janu-
ary 30, 1999, but Sue and Benny could not get their stories
straight about what happened. Sue said that Wilbur quit in
January 1999 for a week, then at least a couple days; Benny
said that the day after Wilbur quit, he asked for his job back.
Sue and Benny were apparently telling different stories to their
attorney: Respondent’s first position statement stated that
Wilbur resigned in January and returned in March, but that was
changed in a later statement that put Wilbur’s date of quitting
on Saturday, January 30, and his return on Monday, February 1,
an indication that he missed hardly any time at all. In any event,
as opposed to Wilbur’s earlier unsupported quit, this time Re-
spondent supported its claim with the quit sheet (lacking to
support Wilbur’s quit the previous August); but Wilbur claimed
that he did not sign it, and Thorpe testified that she had never
seen it in her file. My examination of the document reveals
little difference between Wilbur’s purported signature and the
exemplars placed in evidence by Respondent. I find that he
signed it. On the other hand, there is nothing in Respondent’s
payroll records that suggests that he quit, and there was no
evidence that Respondent otherwise considered that he quit,
such as taking away his health benefits. Usually, an employee’s
name would be removed from the payroll and the employee
would be asked to return his credit cards and Nextel, the payroll
clerk would sign for them, and Thorpe would remove the per-
sonnel file and store it in a box in the closet. Thorpe was never
told anything about Wilbur’s “quit” and never did anything.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
Finally, she testified that Wilbur kept his Nextel and Respon-
dent’s truck at all times and drove it back and forth from his
home to plow snow every day. So, I find that, although Wilbur
signed the form, Respondent never accepted it as a “quit.” In
any event, January 30 was the third anniversary date of his
employment, so by that day he had earned 2 weeks’ vacation
pay. He took 1 week then, so he was owed an additional 1 week
whenever he asked for it. There was no justification for Re-
spondent’s refusal to pay it in August. I conclude that the
week’s benefit was withheld, as Benny stated, because of
Wilbur’s union activities, in violation of Section 8(a)(3) and (1)
of the Act.
The complaint alleges that Respondent discharged Purgiel,
Newberry, and Bedford because they engaged in a concerted
discussion involving wages, hours, and working conditions.
During the winter months, Respondent’s work typically slowed
down, because there was no road construction work in the
colder weather. The warmer-weather employee complement
dipped to as few as 18–20 employees, performing snow re-
moval, with the remainder of about 10–12 drivers laid off. In
late fall, in order to supplement Respondent’s income, Benny
contracted with Wal-Mart to transport its merchandise and
offered his drivers 32 cents per mile, an amount deemed inade-
quate by a number of drivers. Timothy Caverson advised
Robert in December that the job did not pay enough, and he did
not want it. On Tuesday, December 3, Newberry was driving to
the Detroit area; and Purgiel was there, delivering aggregate.
They were talking on the private channel of their Nextels about
the weather and the scenery, and then Newberry mentioned the
fact that Benny had set up tractors to haul for Wal-Mart. Pur-
giel said that he was not going to do it for 32 cents a mile. He
was not an over-the-road driver and was not going to work out
of state. Newberry said that he was not going to do the job ei-
ther; he had enough “over the road.” Purgiel said that it was just
about the end of the season and that all the employees would be
looking for jobs and signing up for unemployment. Newberry
mentioned that Wilbur and Steffes had started their own busi-
ness, A&L Steel, and they were looking for drivers. Purgiel
said that all the employees were going to be looking for work
because the season was ending and there was no snow on the
ground so there would be no work plowing snow. The employ-
ees would be signing up for unemployment or looking for dif-
ferent work. At that point, the Nextel transmission switched
from private, in which only Purgiel and Newberry could par-
ticipate and hear, to group, where everybody in the company
who had a Nextel could hear and talk. Benny then spoke. Ac-
cording to Purgiel, he said: “[G]o back to the Motel. Get your
clothes and bring them up North. You guys are done.” Respon-
dent contends that Benny never discharged Purgiel, in light of
Purgiel’s admission that he lost nothing because he delivered
his load before returning to Gaylord; but Benny clearly fired
him, as shown by Purgiel’s testimony: “[M]y first words to him
were well, am I fired. And he goes well, yes.”
They returned to the company’s office, and both were given
a paper that they were asked, but refused, to sign and which
read:

Randy [Dennis] was let go because he was actively
seeking employment with other companies while on Yuker
payroll. This is a violation of Yuker trust and loyalty, be-
havior which is not in the best interest of Yuker Construc-
tion.

The General Counsel contends that the entire conversation
between the employees was protected because their work was
seasonal and what happened in the off season was a continuum
to their overall job, to which they intended to return, citing in
support Southern Pine, 104 NLRB 834 (1953). Furthermore,
their discussion was really about a work dispute, and they were
threatening to resign and take jobs elsewhere, designed to in-
duce Respondent to act favorably on their wage demands, cit-
ing Boeing Airplane Co., 110 NLRB 147, 149 (1954). Both
Board decisions dealt with actions by employees to persuade
their employers to meet their demands. Here, the employees
were discussing merely their plans for the winter months. They
were not asking Respondent to do anything, and they certainly
made no demand for an increase of the amount that Respondent
had offered to pay for driving Wal-Mart shipments. The Gen-
eral Counsel’s contention that their discussions were a neces-
sary prerequisite to confronting Respondent with a demand is
based on no fact in the record and is merely speculative.
“[M]ere talk” will only be found concerted when it is “looking
forward to group action.” Mushroom Transportation Co. v.
NLRB, 330 F.2d 683, 685 (3d Cir. 1964).
However, their discussion of what they would earn, that is,
what Respondent intended to pay for the Wal-Mart job, and
their refusal to work for the rates he offered, was a concerted
and protected activity. International Business Machines, 265
NLRB 638 (1982). The issue, then, is whether the General
Counsel met its burden to prove, by a preponderance of the
evidence, that Benny discharged Purgiel and Newberry because
of that part of the conversation. Club Monte Carlo Corp., 280
NLRB 257, 261 (1986), enfd. 821 F.2d 354 (6th Cir. 1987). I
find that he did not. There is nothing presented in the General
Counsel’s case-in-chief that proved that this was the reason for
the action that Benny took. Rather, the evidence in the case-in-
chief tends to prove the very opposite. Caverson testified on
behalf of the General Counsel that he complained that the Wal-
Mart work paid too little and refused to do the work; yet he was
not discharged. I conclude, therefore, that the General Counsel
did not make a prima facie case supporting this allegation under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983); Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999).
Assuming that this conclusion is incorrect, and in order to
avoid a remand, I find that Benny’s explanation of his reason
for the discharge was anything but clear and rationale. He
originally testified that

[t]hey were talking about seeking other employment for the
slow season coming up with A&L. And Randy was talking
about going to work with Ronnie and Kelley. And they said
we’re all going to be laid off because the slow season is
starting.

YUKER CONSTRUCTION CO. 1081
Benny said “[I]f you feel that way, bring your trucks to Gaylord
now and get ahead [sic] start on everybody else seeking em-
ployment.” He added:

I’m not going to pay someone to look for employment on my
time and driving my truck. The job I was paying him to do
required his full attention. Not to be seeking employment
while he was working for me.

Finally he said, in an explanation that applies equally to Pur-
giel: “Mr. Newberry was terminated because he was seeking in
my opinion seeking employment on my payroll with my vehi-
cle and my Nextel radio and was communicating that with
other employees.”
These employees were not seeking employment on the com-
pany radio. At best, they were talking about their plans for the
winter; and Purgiel insisted to Benny that his conversation with
Newberry was innocent, that they were discussing the slow-
down of work and that they needed additional work to supple-
ment their income, and that Benny misunderstood what they
were talking about. He asked Benny to meet with him, to which
Benny agreed, and then, and the next day, Purgiel insisted that
he was merely trying to supplement his income during the slow
season, to which Benny replied that that was “what I was trying
to do.” (Benny also testified, in answer to leading questions of
his counsel, that Purgiel stated how important his job was to
him, that he did not want to lose his job over something so
foolish, and that he valued his job and wanted to come back to
work for Respondent, but there is nothing to indicate that Pur-
giel’s plea was what moved Benny to take him back, and in
light of the leading questions, I discount this testimony.) Benny
agreed that Purgiel should continue to work for him.
Newberry, however, never offered any explanation to Benny,
who was upset with Newberry about another incident when
Newberry persisted in his claim that he should not have suf-
fered a salary deduction for damage that he caused to a hydrau-
lic line on his truck. Newberry’s insistence went to extremes,
yelling in Benny’s face and actually poking him with his fin-
gers with such force that Benny staggered backwards and al-
most fell, for which Benny was furious. So, despite having
engaged in the same conversation for which Purgiel was ulti-
mately not disciplined, Newberry remained discharged because
he refused to excuse his behavior and ask for forgiveness. I
recognize that Benny testified that this altercation was not the
reason for Newberry’s termination and that the only reason was
the conversation over the Nextel. Nonetheless, I find that the
altercation formed part of his thinking in not reversing his deci-
sion about Newberry, while immediately reinstating Purgiel.
I find that Benny’s thought that Purgiel and Newberry were
looking for work on Respondent’s radio was erroneous, and
Benny seemed, by his reinstatement of Purgiel, to have under-
stood that he acted hastily and without reason. The fact that he
“shot from the hip” does not constitute an unfair labor practice.
The Act provides a remedy for actions that violate its terms, but
not for every discharge that is unrelated to Sections 7 or 8(a).
As the Board stated in Meyers Industries (Meyers II), 281
NLRB 882, 888 (1986), enfd. 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988), “The Board was not in-
tended to be a forum in which to rectify all the injustices of the
workplace.” The General Counsel contends that they were dis-
charged because they were complaining about the mileage rate
that Benny offered for the Wal-Mart job. It is true that Benny
stated in his affidavit that he overheard Newberry saying that
he would not do the Wal-Mart job, a fact that he denied in his
testimony; but Benny took no other action against anyone else,
except Bedford, who maintained the same position as these two
employees did. Caverson’s testimony is directly contrary to the
General Counsel’s theory, because he was not discharged for
refusing that work or griping about the amount that Benny was
proposing to pay. In addition, I do not find that Benny’s reason
was a pretext. Benny acts without thinking. He sincerely was
offended that the two employees were trying to obtain em-
ployment while being paid by him. Purgiel convinced him oth-
erwise and Benny immediately gave him back his job; and
there is no evidence that Purgiel was assigned to Wal-Mart
jobs. I am persuaded that Respondent would have taken the
same action even if the employees had not engaged in protected
activity. Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
Accordingly, I dismiss this allegation.
The reason for Respondent’s discharge of Bedford was un-
clear. One reason was not the one that Respondent urged, that
Bedford had so many points for speeding tickets that he was
uninsurable. There is no question that he had the points and no
question that he should not have been driving, but, according to
Thorpe’s testimony, everyone in management knew of Bed-
ford’s driving woes. Bedford had an accident on Labor Day
weekend, as a result of which he was cited for, according to
Bedford’s recollection, “failure to maintain a vehicle,” and was
hospitalized and so injured that he did not return to work until
December. Bedford testified that he told Robert each time he
received a new ticket, and Sue told Bedford at some time be-
tween August 1998 and March 1999 that, if he did not get that
ticket dismissed, he would not be insurable. And the ticket was
not dismissed, and he received two additional points in Decem-
ber, which he reported to Respondent, yet nothing was done;
and he returned to drive for Respondent that month, 3 months
after he had turned down Benny’s invitation, made about 2
weeks after Labor Day and shortly before the September 20
representation election, to drive him to the voting location if
Bedford promised to vote against union representation, which
invitation is alleged in the complaint as, and I conclude is, a
separate unfair labor practice. So it is probable that his union
activities, whatever they may have been, including his refusal
of the offer of the ride, did not have anything to do with his
ultimate termination.
The General Counsel relies on the fact that he talked with
various drivers, including Newberry and Purgiel, in late De-
cember or early January, who indicated that they were not go-
ing to haul for 32 cents an hour. Nonetheless, Bedford started to
do Wal-Mart work when he returned to work in December, and,
although Bedford’s recollections were far from clear, he also
worked at least in March, despite his mentioning to Benny that
he was “kind of unhappy” about making less to haul for Wal-
Mart than to haul aggregate for $12 per hour. Bedford then
apparently stopped doing that work for a week, until Benny
asked him to haul again, which Bedford did for another week,
plus a Sunday, still complaining about the amount that he was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
paid for the work. Benny brushed aside his final complaints in
late March, insisting that Respondent would be soon back haul-
ing gravel and would call him for work as soon as he needed
him. But, on April 13, the day that Sue requested a search of
Bedford’s motor vehicles record, an office secretary called to
tell Bedford to take everything to the office and turn in his
equipment. He was finished.
The General Counsel contends that Bedford never refused
Wal-Mart jobs, was engaged in concerted activities, and was
not complaining as an individual, because Benny had overheard
Newberry and Purgiel discussing the low pay on the Wal-Mart
job in December and Caverson had also made known his un-
willingness to haul loads for Wal-Mart. This, then, showed a
matter of common concern. But, by March, the Wal-Mart work
did not appear to be a matter of common and concerted con-
cern. The record does not show whether either Caverson or
Purgiel was being assigned to Wal-Mart work or whether any-
one else was still complaining about it. An individual employee
acting with or on the authority of other employees and not
solely on his or her own behalf is engaged in concerted activity.
Meyers Industries (Meyers I), 268 NLRB 493, 497 (1984),
revd. sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948, 971 (1985), decision on remand
Meyers Industries (Meyers II), supra. There was no proof that
the employees planned any action to protest anything, or that
Bedford acted with or on the authority of anyone. He was not
seeking to initiate or to induce or prepare for group action and
was not bringing a group complaint to management. Meyers II,
supra at 887. I conclude that the General Counsel did not prove
that Bedford engaged in concerted activities. Thus, Respon-
dent’s discharge of him did not violate Section 8(a)(1) of the
Act.
Again, assuming that my conclusion is erroneous, and in or-
der to avoid a remand, I deal with the merits of the discharge to
determine whether, even if the General Counsel had made a
showing of a prima facie case, Respondent nonetheless would
have terminated him; and, to do so, I must dispose of a prelimi-
nary procedural matter. The General Counsel subpoenaed “any
and all documents submitted to the State of Michigan Unem-
ployment Agency regarding Brian Bedford,” but Respondent
did not petition to quash the subpoena within 5 days from the
date of service, as required by Rule 102.31(b) of the Board’s
Rules and Regulations. Its first mention of its refusal to comply
with the subpoena came at the hearing, when Respondent con-
tended that, under the Michigan Employment Security Act,
M.C.L. § 421.11(b)(1)(iii), any documents used in connection
with an application for unemployment benefits are prohibited
from being used in a legal proceeding to which the Commission
is not a party. I received certain proof and testimony subject to
Respondent’s motion to strike. It is not wholly clear on whether
the 5-day rule must be strictly applied when there is a claim of
a privilege. M. J. Mechanical Services, 324 NLRB 812, 834
(1997); EEOC v. Lutheran Social Services, 186 F.3d 959 (D.C.
Cir. 1999); NLRB v. Midland Daily News, 151 F.3d. 472 (6th
Cir. 1998). So, I consider the merits of whether the material is
privileged. In EEOC v. Illinois Dept. of Employment Sec., 995
F.2d 106 (7th Cir. 1993), the court held:

When state and federal statutes clash, the Supremacy Clause
of the Constitution gives the federal statute controlling force.
Rule 501 of the Federal Rules of Evidence reinforces this
message in the domain of evidentiary privileges. State privi-
leges are honored in federal litigation only when state law
supplies the rule of decision. When federal law governs, as it
does here, only privileges recognized by the national govern-
ment matter. Because state law does not apply, Rule 501 tells
us to use “the principles of the common law as they may be
interpreted by the courts of the United States in the light of
reason and experience.” Unless we absorb the state’s unem-
ployment-insurance privilege into the common law of the
United States, the EEOC’s subpoena must be enforced.

Respondent gives no reason that the Michigan statute ought
to undermine the right of the Board to obtain information to use
in enforcing the Act. Respondent argues only that the statute
says what it says and that evidence relating to a claim for un-
employment compensation may not be received in evidence,
citing Herman Bros. Pet Supply v. NLRB, 360 F.2d 176 (6th
Cir. 1966), and Summerville v. ESCO Co. Ltd. Part, 52
F.Supp.2d 804 (W.D. Mich, 1999). However, Herman Bros.
was not followed in EEOC v. Illinois Department of Employ-
ment, supra at 109, where the court found:

Illinois reminds us that Herman Bros. Pet Supply, Inc. v.
NLRB, 360 F.2d 176, 179–80 (6th Cir. 1966), held that a state
statutory unemployment-compensation privilege prevented
the use of information in a proceeding before the NLRB. Be-
cause the EEOC has the same evidence-gathering powers as
the NLRB, Illinois insists, the EEOC is equally limited. Her-
man Bros. predates both University of Pennsylvania [v.
EEOC, 493 U.S. 182 (1990), which declined opportunities to
create new federal evidentiary privileges or expand old ones],
and the adoption of Fed.R.Evid. 501. The sixth circuit as-
sumed that state privileges apply in federal litigation. That as-
sumption is no longer warranted.

The court in Summerville did not address the EEOC v. Illinois
Dept. rationale, nor Rule 501, and I conclude that the better rule
is that, where state privilege law conflicts with the enforcement
of a federal statute and the privilege is not otherwise consonant
with federal evidentiary law, state privilege law is not control-
ling. Freed v. Grand Court Lifestyles, Inc., 100 F.Supp.2d 610
(S.D. Ohio 1998).
The records show that Respondent opposed Bedford’s con-
tinued receipt of unemployment benefits on the ground that
Bedford refused to take Wal-Mart trips and that Respondent
contended finally that Bedford had quit because he refused so
many offers of employment. That resulted in Bedford’s dis-
qualification from receiving unemployment benefits and an
order to make restitution of $600. The record is not wholly
clear, but Bedford probably refused one or more assignments
on the ground that he had medical or dental appointments, but
Respondent’s claim of Bedford’s refusal to accept assignments
was inflated by lies. Sue and Benny instructed Thorpe to falsely
record in Respondent’s telephone logs calls that were never
made—that Bedford was refusing loads or was called on certain
days to take Wal-Mart runs—in a fraudulent effort to reduce
their liability for unemployment insurance. The unemployment
YUKER CONSTRUCTION CO. 1083
records thus show that Respondent’s motivation was to rid
itself of someone who was collecting unemployment insurance.
What Benny and Sue did to may have been reprehensible and
illegal, but does not constitute a violation of the Act. I thus find
no basis for the complaint’s allegation and dismiss it. I note
also that the complaint alleges that Benny advised employees in
March 2000, that, if they were dissatisfied with the rate of pay
they were receiving from Respondent, they should find a dif-
ferent job. I assume from the timing that this related to the Bed-
ford complaint; but there was no testimony about it, and noth-
ing in the General Counsel’s brief; and I dismiss the allegation.
REMEDY
Having found that 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. Specifically, Respondent shall make Kelly
Wilbur whole for 1 week’s vacation pay, as computed in accor-
dance with the formula set forth on page 7, above, plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Respondent shall also rescind its unlawful no-
solicitation, no-distribution rule.
On these findings of fact and conclusions of law and on the
entire record,3 I issue the following recommended4
ORDER
Respondent, Yuker Construction Co., Gaylord, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their union mem-
bership, activities, and sympathies.
(b) Accusing its employees of disloyalty because they en-
gaged in activities on behalf of Local 247, International Broth-
erhood of Teamsters, AFL–CIO (Union).
(c) Maintaining an invalid no-distribution, no-solicitation
rule forbidding its employees from discussing or distributing on
behalf of the Union or any other labor organization on its prop-
erty at any time.
(d) Telling its employees that they were discharged because
they engaged in activities on behalf of the Union.
(e) Threatening its employees with discharge and unspecified
discipline because they engaged in activities on behalf and in
support of the Union.
(f) Threatening its employees that it would close its business
and sell its assets because they engaged in activities on behalf
and in support of the Union.

3 The official transcript, particularly of the second day, is filled with
inaccuracies and language that simply was not spoken, either by the
person who actually made the comments or the person to whom the
words were attributed. Nonetheless, the inaccuracies are not so severe
that they alter the gist of the testimony or affect the integrity of the
hearing. The General Counsel’s unopposed motion for receipt in evi-
dence of GC Exhs. 17(a) and (b), the tape and agreed upon transcript of
the July meeting, is granted.
4 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 pur-
poses.
(g) Implying that it would be futile for its employees to se-
lect the Union as their exclusive bargaining representative by
telling them that there would never be a union representing its
employees.
(h) Creating the impression among its employees that their
union activities were under surveillance by telling them that it
knew which employees had signed authorization cards for the
Union.
(i) Threatening to layoff all its employees and recall only
those who had not engaged in activities on behalf and in sup-
port of the Union.
(j) Soliciting complaints and grievances from its employees
and impliedly promising to remedy them.
(k) Telling its employees that they were not entitled to vaca-
tion pay because of their activities on behalf and in support of
the Union.
(l) Offering its employees rides to an NLRB election if its
employees promised to vote against the Union.
(m) Refusing to pay vacation pay to its employees because
of their activities on behalf and in support of the Union.
(n) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Kelly Wilbur whole for any losses he suffered as a
result of the discrimination against him, in the manner set forth
in the Remedy section of the Decision.
(b) Rescind its invalid no-distribution, no-solicitation rule
forbidding its employees from discussing or distributing on
behalf of the Union or any other labor organization on its prop-
erty at any time.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility copies of the attached notice marked “Appendix.”5 Copies
of the notice, on forms provided by the Regional Director for
Region 6, after being signed by Respondent’s authorized repre-
sentative, shall be posted by Respondent immediately on re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by 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, Respondent has gone out of business or
closed the facility involved in these proceedings, Respondent
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1084
shall duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees employed
by Respondent at any time since February 5, 1999.
(e) 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
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT interrogate our employees concerning their
union membership, activities, and sympathies.
WE WILL NOT accuse our employees of disloyalty because
they engaged in activities on behalf of Local 247, International
Brotherhood of Teamsters, AFL–CIO (Union).
WE WILL NOT maintain an invalid no-distribution, no-
solicitation rule forbidding our employees from discussing or
distributing on behalf of the Union or any other labor organiza-
tion on our property at any time.
WE WILL NOT tell our employees that they were dis-
charged because they engaged in activities on behalf of the
Union.
WE WILL NOT threaten our employees with discharge and
unspecified discipline because they engaged in activities on
behalf and in support of the Union.
WE WILL NOT threaten our employees that we would close
our business and sell our assets because they engaged in activi-
ties on behalf and in support of the Union.
WE WILL NOT imply that it would be futile for our em-
ployees to select the Union as their exclusive bargaining repre-
sentative by telling them that there would never be a union
representing our employees.
WE WILL NOT create the impression among our employees
that their union activities were under surveillance by telling
them that we knew which employees had signed authorization
cards for the Union.
WE WILL NOT threaten to layoff all our employees and re-
call only those who had not engaged in activities on behalf and
in support of the Union.
WE WILL NOT solicit complaints and grievances from our
employees and impliedly promise to remedy them.
WE WILL NOT tell our employees that they were not enti-
tled to vacation pay because of their activities on behalf and in
support of the Union.
WE WILL NOT offer our employees rides to an NLRB elec-
tion if our employees promised to vote against the Union.
WE WILL NOT refuse to pay vacation pay to our employees
because of their activities on behalf and in support of the Un-
ion.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL make Kelly Wilbur whole for any losses he suf-
fered as a result of the discrimination against him, with interest.
WE WILL rescind our invalid no-distribution, no-solicitation
rule forbidding our employees from discussing or distributing
on behalf of the Union or any other labor organization on our
property at any time.

YUKER CONSTRUCTION CO.