B & K Builders, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1998

325 N.L.R.B. 693 (N.L.R.B. 1998)

693
325 NLRB No. 128
B & K BUILDERS
1 On December 31, 1996, Administrative Law Judge Irwin H.
Socoloff issued the attached decision. The General Counsel filed
limited exceptions and a supporting brief. The Respondent filed an
answering brief.
The judge’s decision included discussion of Case 30–RC–5668,
which had been consolidated for hearing with the above-captioned
unfair labor practice cases. On March 17, 1997, the Board issued an
order severing Case 30–RC–5668 from this proceeding and remand-
ing it to the Regional Director for Region 30 for the purpose of
issuing a certification of representative.
2 All dates are in 1995 unless noted otherwise.
B & K Builders, Inc. and Laborers’ International
Union of North America, Fox/Wis River Valley
Locals: 931, 539, 1359, 1407, AFL–CIO, and
Bricklayers & Allied Craftsmen District Coun-
cil of Wisconsin International Union of Brick-
layers and Allied Craftsmen, AFL–CIO, and
Greater Fox River Valley District Council of
Carpenters United Brotherhood of Carpenters
and Joiners of America, AFL–CIO. Cases 30–
CA–12856, 30–CA–12866, and 30–CA–13014
April 30, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
The issues presented here arise from the judge’s dis-
missal of certain consolidated complaint allegations
based on his finding that a settlement agreement barred
their litigation.1 The National Labor Relations Board
has considered the decision and record in light of the
exceptions and briefs, and has decided to affirm the
judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On February 15, 1995,2 three unions, the Charging
Parties here, filed a representation election petition for
a unit of carpenters, laborers, and masons employed by
the Respondent. The Unions lost the April 7 election,
but thereafter filed objections as well as unfair labor
practice charges in Cases 30–CA–12856 and 30–CA–
12866.
On July 26, the parties entered into a stipulation,
agreeing to set aside the April 7 election and to con-
duct a second election. On July 27, the parties entered
into a settlement agreement covering the unfair labor
practice allegations. The Respondent complied with the
notice posting and other affirmative remedial obliga-
tions in this agreement.
On August 23, 2 days prior to the rerun election, the
Unions filed charges in Case 30–CA–13014. These
charges alleged that, subsequent to the execution of the
settlement agreement, the Respondent discriminatorily
laid off employee Richard Abel in violation of Section
8(a)(3) and (1) of the Act. They also alleged that, prior
to the execution of the settlement agreement, the Re-
spondent had violated Section 8(a)(3) and (1) by
discriminatorily refusing to assign Abel to a higher
paying job, and had violated Section 8(a)(1) of the Act
by granting wage increases to two apprentices and by
creating the impression that employees’ union activi-
ties were under surveillance.
On November 29, the Regional Director set aside
the settlement agreement based on the alleged
postsettlement discrimination against Abel. On Decem-
ber 12, the General Counsel issued an order consoli-
dating cases and consolidated complaint in Cases 30–
CA–12856, 30–CA–12866, and 30–CA–13014, alleg-
ing several violations of Section 8(a)(1) and (3).
In his decision, the judge recommended dismissal of
the complaint in its entirety. He found that the Re-
spondent lawfully discharged Abel for valid business
considerations. He therefore found that there was no
basis for setting aside the settlement agreement to per-
mit litigation of unfair labor practice allegations cov-
ered by that agreement. Finally, the judge found that
the settlement agreement barred all allegations of
presettlement unfair labor practices, including allega-
tions first made in the charge filed in Case 30–CA–
13014. In the judge’s opinion, the General Counsel
failed to show that the parties to the agreement had
specifically reserved the right to litigate these new alle-
gations of unlawful wage increases and surveillance.
There are no exceptions to the judge’s dismissal of
the complaint allegations concerning Abel’s postset-
tlement discharge, the judge’s reinstatement of the set-
tlement agreement, or his resultant dismissal of allega-
tions of presettlement unfair labor practices in Cases
30–CA–12856 and 30–CA–12866. The General Coun-
sel has filed limited exceptions to the judge’s finding
that the ‘‘Scope of the Agreement’’ clause contained
in the settlement agreement did not specifically reserve
the right to litigate the two new allegations of 8(a)(1)
violations raised by the postsettlement charge filed in
Case 30–CA–13014. We find merit in the General
Counsel’s exceptions.
In Hollywood Roosevelt Hotel Co., 235 NLRB 1397
(1978), the Board held that ‘‘a settlement, if complied
with, will be held to bar subsequent litigation of all
prior violations except where they were not known to
the General Counsel or readily discoverable by inves-
tigation or were specifically reserved from the settle-
ment by mutual understanding of the parties.’’ As pre-
viously indicated, the issue here is whether the settle-
ment agreement specifically reserved the right to liti-
gate the new allegations of presettlement unlawful
wage increases and surveillance.
The ‘‘SCOPE OF THE AGREEMENT’’ language
of the settlement agreement states:
This Agreement settles only the allegations in
the above-captioned case(s), and does not con-
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694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The settled allegations involved preelection polling and interroga-
tion, promises of wage increases, and threats to discharge the prin-
cipal union activist. The new allegations are actual granting of wage
increases (involving different employees from promise allegation)
and the creation of the impression that its employees’ union activi-
ties were under surveillance. By its express terms, the settlement
agreement settled only the former allegations.
4 The result reached in Ratliff was clearly a product of its special
facts. Thus, in Ratliff, the settled case and the case the General
Counsel was seeking to litigate not only involved the same union-
security clause and the same collective-bargaining agreement, but
also the language that the General Counsel was alleging to be un-
lawful ‘‘even appeared in the same sentence as the language pre-
viously singled out as the fatal flaw in the clause.’’ 310 NLRB at
1224. Under these circumstances, the Board concluded that the re-
spondents could ‘‘reasonably believe that the settlement disposed of
the legality vel non of the entire clause, at least during the term of
the contract in which it was contained.’’ Id.
5 Having found unlawful impression of surveillance based on the
incident involving Prust and Bushman, we find no need to pass on
whether statements by Respondent’s owner Kenneth Staab to former
employee Harry Engle also involved unlawful impression of surveil-
lance. An unfair labor practice finding based on the latter incident
would merely be cumulative and would not affect the remedy for the
Respondent’s misconduct.
stitute a settlement of any other case(s) or matters.
It does not preclude persons from filing charges,
the General Counsel from prosecuting complaints,
or the Board and the courts from finding viola-
tions with respect to matters which precede the
date of the approval of this Agreement regardless
of whether such matters are known to the General
Counsel or are readily discoverable. The General
Counsel reserves the right to use the evidence ob-
tained in the investigation and prosecution of the
above-captioned case(s) for any relevant purpose
in the litigation of this or any other case(s), and
a judge, the Board and the courts may make find-
ings of fact and/or conclusions of law with respect
to said evidence.
We have no trouble concluding that the above lan-
guage is sufficiently specific to avoid application of
the broad Hollywood Roosevelt rule. It expressly states
that the agreement settles only the allegations in Cases
30–CA–12856 and 30–CA–12866. It clearly reserves
any person’s right to file new postsettlement charges of
unlawful presettlement conduct, as well as the General
Counsel’s right to investigate and issue complaint
based on these charges, regardless of whether the
newly alleged conduct was already known to the Gen-
eral Counsel or readily discoverable. There can be no
other reasonable interpretation of the meaning of this
language, to which all parties to the settlement
agreed.3
Indeed, the express reservation language in the set-
tlement agreement at issue here is even more specific
than in Ratliff Trucking Corp., 310 NLRB 1224
(1993), where the reservation stated
This Settlement Agreement settles only the unfair
labor practices alleged in the above-captioned
case, and does not constitute a settlement of any
other case. It does not preclude persons from fil-
ing, or the National Labor Relations Board from
prosecuting, unfair labor practice charges against
the Charged Party based on events which precede
the date of the approval of this Settlement Agree-
ment.
Although the Board held in Ratliff that the above lan-
guage was insufficient to permit litigation of a new
charge challenging the legality of the same union-secu-
rity clause that had been challenged in the settled un-
fair labor practice litigation,4 it observed that ‘‘this is
broad language that would permit the General Counsel
to proceed in any case that can properly be defined as
an ’other’ case or that concerns any distinct ‘event’
preceding the date of the settlement. This clearly af-
forded the General Counsel broad latitude to proceed
on other charges.’’ A fortiori, the express reservation
language in this case affords the General Counsel at
least as much latitude.
Finally, we find no merit in the Respondent’s claim
that the reservation language of the settlement agree-
ment is nugatory because it was preprinted boilerplate
on a Board form. The Respondent was under no obli-
gation to accept the reservation language as printed.
Having entered into the settlement agreement contain-
ing such language, however, the Respondent is bound
by it.
In sum, we find that the clear and specific terms of
the reservation language in the settlement agreement
permits litigation of the allegations of unlawful
presettlement wage increases and surveillance in Case
30–CA–13014. Turning to the merits of those allega-
tions, we note that there are no exceptions to the
judge’s findings that the Respondent granted unsched-
uled and unexpected merit wage increases to appren-
tice employees Brian Bushman and Ryan Leverance.
The judge also found that the Respondent had failed
to demonstrate a pattern or past practice of granting
such wage increases. Under these circumstances, em-
ployees would reasonably conclude that the Respond-
ent granted such wages during the representation elec-
tion campaign in an effort to dissuade them from vot-
ing for the Unions. We therefore find that the Re-
spondent violated Section 8(a)(1) of the Act by grant-
ing these wage increases.
There also are no exceptions to the judge’s finding,
based on uncontradicted testimony, that Supervisor
Prust asked Bushman about his and Leverance’s plan
to cast blank ballots in the April 7 election. By this
conduct, we conclude that the Respondent created the
impression of surveillance by implication that it was
watching the voting plans of its employees, in viola-
tion of Section 8(a)(1) of the Act.5
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695B & K BUILDERS
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 Earlier, on November 29, the Regional Director withdrew his ap-
proval of the July 27, 1995 bilateral settlement agreement entered
into by the parties amicably to resolve the matters raised in Cases
30–CA–12856 and 30–CA–12866.
AMENDED CONCLUSIONS OF LAW
4. The Regional Director improperly withdrew ap-
proval of the July 27, 1995 settlement agreement,
which is dispositive of all allegations in Cases 30–CA–
12856 and 30–CA–12866.
5. The Respondent violated Section 8(a)(1) of the
Act by unlawfully granting wage increases to employ-
ees to influence their votes in the election against the
Unions and by creating the impression that its employ-
ees’ voting plans were under surveillance.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, B & K Builders, Inc., Marshfield, Wis-
consin, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unlawfully granting wage increases to employ-
ees to influence their vote in the election.
(b) Creating the impression that employee voting
plans were under surveillance.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post
at its jobsite in Marshfield, Wisconsin, copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the
notice, on forms provided by the Regional Director for
Region 30, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent 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 August
23, 1995.
(b) 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.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleged 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 or-
dered us to post and abide by this notice.
WE WILL NOT grant unscheduled and unexpected
wage increases to employees to influence their votes in
the election against the Union.
WE WILL NOT create the impression that our em-
ployees’ voting plans are under surveillance.
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.
B & K BUILDERS, INC.
Rocky L. Coe, Esq., for the General Counsel.
Susan C. Sheeran, Esq., of Madison, Wisconsin, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. Upon
charges filed on April 7 and 24 and August 23, 1995, by the
Joint Charging Parties (the Unions) against B & K Builders,
Inc. (the Respondent), the General Counsel of the National
Labor Relations Board, by the Regional Director for Region
30, issued a consolidated complaint dated December 12,
1995, alleging violations by Respondent of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the National Labor Rela-
tions Act (the Act).1 Respondent, by its answer, denied the
commission of any unfair labor practices. Also on December
12, the Regional Director issued an order consolidating Case
30–RC–5668 with the unfair labor practice cases for pur-
poses of hearing, ruling, and decision with respect to the rep-
resentation case issues raised by certain challenged ballots.
Pursuant to notice, trial was held before me in Marshfield,
Wisconsin, on May 1 and 2, 1996, at which the General
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696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The factfindings contained here are based on a composite of the
documentary and testimonial evidence introduced at trial. Where
necessary to do so, in order to resolve significant testimonial con-
flict, credibility resolutions have been set forth, infra. In general, I
have viewed with suspicion the testimony of alleged discriminatee
Richard Abel who, as I watched and listened to him testify, im-
pressed me as a less than reliable witness.
Counsel and the Respondent were represented by counsel
and all parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evi-
dence. Thereafter, the parties filed briefs which have been
duly considered.
On the entire record in these cases, and from my observa-
tions of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of
business in Marshfield, Wisconsin, is engaged, in central
Wisconsin, in the building construction industry as a general
contractor. During the year preceding issuance of the consoli-
dated complaint, Respondent, in the course and conduct of
its business operations, purchased, and received, at the
Marshfield, facility goods and materials valued in excess of
$50,000, which were sent directly from points located out-
side the State of Wisconsin. I find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATIONS
The Unions are, each, labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
B & K specializes in wood frame construction, especially,
the building of multifamily housing. Owned and run by Ken-
neth Staab, Respondent, typically, has three to eight projects
in progress at any one time which function under the direc-
tion of the project foremen, Bob Aschenbrenner, Terry Prust,
Jack Smith, Mike Zvolena, and Gary Schade, statutory super-
visors all. During early 1995, B & K employed some 14 con-
struction workers (carpenters, laborers, and masons) who
worked on the crews of these project foremen. Union activi-
ties among the employees began late in 1994, and early in
1995, and, on February 15, 1995, the Unions filed an elec-
tion petition with the Board, seeking to represent the above-
referenced employees assigned to the various construction
crews.
An election was held on April 7, 1995, which was lost by
the Unions by a vote of eight to three. Thereafter, they filed
timely objections to conduct affecting the results of the elec-
tion as well as unfair labor practice charges in Cases 30–
CA–12856 and 30–CA–12866. By the charges, the Unions
alleged that Respondent violated the Act by imposing a 2-
day suspension on the principal union activist, employee
Richard Abel, by preelection polling of the employees as to
how they intended to vote, and by the intimidation and coer-
cion of union supporters in the exercise of their Section 7
right to seek representation.
On July 26, 1995, the parties entered into a stipulation by
which they agreed to have the April 7 election set aside, and
to the conduct of a second election, which, subsequently, was
held on August 25. On July 27, the Regional Director ap-
proved a settlement of the unfair labor practice cases by
which B & K agreed to reduce Abel’s discipline, from sus-
pension to written warning, and to pay him $177.84, to make
him whole. Under terms of the settlement, B & K further
agreed not to interrogate or poll employees concerning how
they intended to vote in NLRB elections; not to offer em-
ployees higher wages for work as a crane operator in order
to discourage employee organizational efforts; and not to
threaten to terminate employees because of their union sym-
pathies. Finally, B & K agreed to post appropriate notices to
employees concerning its undertakings. Following execution,
Respondent made payment to Abel and posted notices.
Two days before the conduct of the rerun election, on Au-
gust 23, the Unions filed new charges alleging that Respond-
ent violated the Act by laying off Abel on August 4. The
Unions also claimed that, months prior to execution of the
settlement agreement, B & K engaged in further unlawful
conduct by refusing to assign Abel to a higher paying pre-
vailing rate job and by granting merit wage increases to two
of its apprentices. After investigation of the August, charges,
the Board’s Regional Office concluded that Respondent had
also violated the Act, presettlement agreement, by creating
the impression that its employees’ union activities were
under surveillance.
The second election was held on August 25. On November
29, 1995, the Regional Director withdrew approval of the
settlement agreement, and set it aside, based on the Abel dis-
charge.
In the instant case, the General Counsel contends that Re-
spondent engaged in conduct violative of Section 8(a)(3) of
the Act by discharging Abel on August 7, and that this
postsettlement conduct justified the setting aside of the
agreement. The General Counsel further urges that Respond-
ent violated Section 8(a)(3) of the Act by its presettlement
suspension of Abel and by its refusal to assign him to a par-
ticular prevailing wage job. Further, according to the General
Counsel, B & K presettlement violated the Act by interrogat-
ing employees as to how they intended to vote in the April
7 election; granting a wage increase to two of its apprentices;
promising a wage increase to another employee; and creating
the impression that its employees’ union activities were
under surveillance and by threatening to discharge a union
activist. Respondent not only denies that its conduct was un-
lawful but, too, vigorously contests the propriety of the Re-
gional Director’s action in setting aside the earlier settlement.
B. Facts2 and Conclusions
1. Alleged interrogations
Employee Raymond Bowe testified that, throughout March
and April 1995, he wore a union sticker to work, on his hard
hat, at the Chippewa Falls, Wisconsin jobsite. According to
Bowe, in March, Project Foreman Gary Schade approached
him at his work area and asked Bowe if he had made up his
mind as to how he was going to vote. Bowe responded, stat-
ing that he was undecided. Schade, in his testimony, denied
that he asked questions of Bowe, or any other employee,
concerning voting intentions, claiming that he ‘‘stayed clear’’
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697B & K BUILDERS
of the ongoing union activities in compliance with the ‘‘Do’s
and Don’ts’’ guidelines distributed by the owner, Staab, to
the supervisors. As Bowe impressed me as an honest and be-
lievable witness, and as his testimony concerning this point
was more convincing than the contrary testimony of Schade,
I credit Bowe and find that, in March 1995, Schade asked
the employee if he had decided how to vote.
According to employee Michael Weaver, on the Monday
preceding the Friday, April 7 election, he rode to work with
his supervisor, Terry Prust, who asked him if he was ready
for the union vote later that week. When Weaver said that
he had not given the matter much thought, Prust asked him
how he was going to vote. Prust testified that he did not, in
those words, ask Weaver if he was ready for the election. He
acknowledged talking to the employee concerning the vote
and he encouraged Weaver to be there to cast his ballot.
Prust conceded that, in general conversation, he might have
asked Weaver if he was ‘‘ready to be there.’’
Weaver testified about this matter in clear and believable
terms. On the other hand, Prust, despite his claim that he fol-
lowed the ‘‘Do’s and Don’ts’’ as best he could, was evasive
in his testimony concerning this incident. I credit Weaver
and find that, in the days preceding the election, Prust ques-
tioned Weaver, as detailed in the employee’s testimony.
Former employee Tom Greene stated in his testimony that,
while employed by Respondent, preceding the April 7 elec-
tion, he was approached on the jobsite by his supervisor,
Prust, who asked him ‘‘which way he was going to go, vote
yes or no.’’ Greene said that he did not know. According to
Prust, he, the supervisor, never asked Greene how he would
vote, but did discuss with the employee matters concerning
the organizational campaign. Again, I found the testimony of
the employee, in this case, Greene, clear and believable, and
the contrary testimony of Prust, less clear, less likely, shift-
ing and evasive. I find that Greene was questioned by Prust,
preceding the election, as described in Greene’s testimony.
Staab visited the jobsites on April 6, 1995, the day before
the election. According to Weaver, he, Staab, told the em-
ployee, at his workplace, that he did not think that the Union
would offer much more in the way of benefits than the em-
ployees already had. After Weaver’s recollection was re-
freshed, he further testified that ‘‘I think he asked me how
I would be voting.’’ Staab, in his testimony, denied that, on
April 6, he asked any employee how they intended to vote.
In light of Staab’s crisp, clear, and coherent denial, I reject
the tentative and uncertain testimony of Weaver concerning
this matter and I find that, on April 6, Staab did not ask
Weaver how he intended to vote.
Employee Richard Abel testified that, on April 6, at the
Chippewa Falls jobsite, where he worked, he was questioned
by Supervisors Prust and Aschenbrenner, the latter a 5-per-
cent owner of the Company. According to Abel, Prust asked
him what he thought of the Union, and the supervisor stated
his view that it would not do the employees any good. Abel
responded, stating that, with a union, the employees would,
at least, have some bargaining power. Later that day, Abel
further testified, Aschenbrenner asked him how he was going
to vote, and the employee responded, stating that he, Abel,
did not have to reveal that information. According to Abel,
Aschenbrenner said that Staab had told him to go around and
poll the employees with regard to their voting intentions.
Prust, in his testimony, generally denied questioning em-
ployees about the Union. Aschebrenner denied asking Abel
how he was going to vote, but conceded that he asked the
employee what he thought of the Union, for the purpose of
starting a conversation.
As noted at footnote 2, Abel did not impress me as an ac-
curate reporter of events. Moreover, as will appear herein-
after, by April 6, Abel, for months, openly and in the pres-
ence of supervisors, had played the lead employee role in the
organizational drive. Thus, it strikes me as somewhat bizarre
that, on the day before the election, two of the supervisors
would question him about his union views, and about how
he intended to vote. Nonetheless, Abel’s testimony was
straightforward and sure concerning these conversations, and
Prust’s testimony, denying that he questioned employees
about their union views, was evasive in nature and weak.
Aschenbrenner conceded that he questioned Abel with re-
spect to his union views, if not about how he was going to
vote. In these circumstances, I think it more likely that not
that, as Abel testified, on April 6, he was questioned by
Prust regarding his union views, and by Aschenbrenner re-
garding his voting intentions.
With respect to the above-described events, I note that
preelection interrogation and polling of employees, concern-
ing their union sympathies and voting intentions was specifi-
cally addressed in the July 27, 1995 settlement agreement.
As I have, infra, concluded that the agreement was improp-
erly set aside, I further find and conclude that the settlement
agreement stands as a bar to further prosecution of such alle-
gations.
2. Wage increases
It is undisputed that, in March 1995, carpenter apprentices
Brian Bushman and Ryan Leverance received unscheduled
and unexpected merit wage increases shortly after Staab
learned that both had gotten ‘‘A’s’’ as school grades for the
1994–1995 first semester, a part of their apprenticeship pro-
gram. Earlier, in February, their supervisor, Jack Smith, had
recommended raises for them, based on their job perform-
ances. Smith had told the employees that he would make that
recommendation, because of their good work. The raises
were presented to the employees as a reward for superior
work and grades, and without reference to the election or the
organizational drive. Although Staab testified that the in-
creases were in response to the employees’ performance, at
work and at school, Respondent failed to demonstrate a pat-
tern or past practice of rewarding similarly situated appren-
tices for outstanding grades and work achievements.
The complaint allegations regarding the preelection wage
increases granted to Bushman and Leverance were not ad-
dressed in the settlement agreement. However, the conduct
complained of occurred many months prior to execution of
that document, and the General Counsel has not shown that
the alleged violation was ‘‘specifically reserved’’ from the
settlement by the mutual understanding of the parties. Nor
has the General Counsel established that the presettlement
conduct was not known to it, and not readily discoverable by
investigation. In light of my conclusion, infra, that the Gen-
eral Counsel has failed to demonstrate noncompliance with
the agreement on the part of Respondent, I further find and
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698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Quality Hotel Tacoma Dome, 314 NLRB 538 (1994).
conclude that the settlement agreement bars litigation of this
presettlement matter.3
3. Alleged promises of wage increases
Employee Bowe, a carpenter and laborer, testified that, ap-
proximately 3 weeks before the April 7, 1995 election, he re-
ceived an unexpected telephone call, at home, from Staab.
The owner told Bowe that he, Staab, was getting a crane and
he wanted to know if the employee was interested in becom-
ing an operator of that piece of equipment. Staab said that
after crane operators were trained, they would be paid some
$10.89 per hour, which was $1.50 per hour more than Bowe
was earning. Staab also stated that he was thinking of raising
the wage rate for operators of other equipment, specifically,
the pettibone and the skidsteer, pieces of equipment pre-
viously operated by Bowe at his normal rate of pay.
Staab testified that, prior to 1995, the Company had not
owned or operated a crane. On February 15 of that year, he
signed a contract and made a down payment to purchase
same, which was delivered, as scheduled, on or about April
1. Staab explained that he offered increased wage rates to
employees Bowe and Eugene Hutter, Respondent’s most ex-
perienced machine operators, based on anticipated ability to
operate the crane, and only while so engaged.
The foregoing matter was specifically addressed in the set-
tlement agreement. Since, infra, I have concluded that the
agreement was not breached by Respondent, justifying its ab-
rogation, I conclude that the settlement agreement bars litiga-
tion of this allegation.
4. Alleged threats to discharge an employee
Employee Bowe testified that, following Abel’s 2-day sus-
pension of March 13 and 14, Supervisor Mike Zvolena,
while riding to work with Bowe, told him that Abel had been
suspended for failing to show up for work on the previous
Friday, March 10. Zvolena further told Bowe that Staab had
said, at a Friday March 10 foreman’s meeting, that ‘‘possibly
this was a way they could get rid of Dick.’’ Later that day,
Bowe spoke to Supervisor Schade who told the employee
that Staab was trying to use Abel’s absence from work to get
rid of him.
Schade, in his testimony, denied telling Bowe, in March
or April 1995, that Staab was trying to use the absence as
a way to get rid of Abel. Schade could not recall any discus-
sion, at any of the foreman’s meetings held in those months,
concerning Abel’s absences. Zvolena testified that he was
uncertain if he made the remark attributed to him by Bowe.
The supervisor confirmed that Staab talked, at a foreman’s
meeting, of getting rid of Abel, but explained that, in doing
so, Staab made reference to the employee’s absences, not his
union activities.
I have, previously, found Bowe a credible witness, and I
rely on his testimony here. I find that Supervisors Zvolena
and Schade told Bowe, after Abel’s March 10 absence, and
the March 13–14 suspension, that Staab had said that this
was, possibly, a way to get rid of Abel. I also credit Zvolena,
who was very sure and certain on this point, that Staab, in
making such a remark, referred to Abel’s absences, not his
union activities.
Abel testified that, a few days after the suspension, he was
told, in separate conversations with Supervisors Zvolena and
Schade, that those supervisors had refused to honor Staab’s
request that they sign a statement accusing Abel of poor
quality work. According to Abel, the supervisors told him
that Staab had said that, if the Company rid itself of Abel,
a union organizer, the rest of the guys would fall in line re-
garding the Union. Zvolena and Schade, in their respective
testimony, denied having had such conversations with Abel.
The supervisors were clear and convincing in their respective
testimony concerning this matter and I accept that testimony,
and reject the less likely narration offered by Abel.
In any event, the above-described matters were addressed
by the settlement agreement. That agreement was not prop-
erly set aside, infra, and, accordingly, the agreement bars liti-
gation of those matters.
5. Creating the impression of surveillance
Employees Bushman and Leverance agreed between them-
selves to cast blank ballots at the April 7 election. As the
election date approached, Prust spoke to Bushman at his
worksite. According to the employee’s uncontradicted testi-
mony, Prust asked Bushman about such a plan, and said that
it would not do anybody any good to drop a blank ballot.
Former employee Harry Engle testified that he visited Re-
spondent’s offices on April 6, 1995, and he asked Staab
‘‘what was going on with the union vote.’’ According to
Engle, Staab replied, stating that he thought only two or
three people were going to vote for representation. Staab, in
his testimony, stated that he could not recall what transpired
during the subject conversation.
Abel testified that, following his April 6 conversation with
Supervisor Aschenbrenner, described above, he, Abel, ap-
proached Supervisor Smith and asked him if Smith, as a
foreman, was supposed to ask Abel how he would vote. Ac-
cording to Abel, Smith ‘‘kind of chuckled’’ and said all of
the foremen were supposed to ask the employees how they
intended to vote. Smith, in his testimony, denied telling Abel
this and, further, denied that he ever asked any employee to
reveal his voting intentions.
The testimony of Bushman and Engle, concerning the
complaint’s surveillance allegations, stands uncontested and
is credited. Accepting Abel’s testimony at face value, his
interaction with Smith, which Abel initiated, resulted in
Smith’s answering Abel’s question in a fashion which Smith
intended, and the employee understood, as jocular.
As in the case of the alleged unlawful wage increases, the
complaint allegations regarding surveillance were not ad-
dressed in the settlement agreement. Nonetheless, as the con-
duct complained of occurred long before that document was
signed, indeed, before the April 7 election, itself, and was
not ‘‘specifically reserved,’’ and, moreover, was readily dis-
coverable, it, too, is barred from litigation as a presettlement
matter.
6. Alleged discriminatory treatment of Richard Abel
a. The setting
Richard Abel was employed by Respondent as a carpenter
from August 1989 through August 4, 1995. Beginning on
Monday, August 7, 1995, he refused to report to work, or
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699B & K BUILDERS
even to call in to say that he would be absent. At the end
of that week, on Friday, August 11, he was discharged.
In the course of Abel’s employment, he was frequently
reprimanded by Staab, orally and in writing, for failure to re-
port to work on Fridays, and for failure to honor Respond-
ent’s rules regarding requesting time off in advance, and call-
ing in absences. Another area of contention was Abel’s rate
of pay on jobs covered by the State of Wisconsin’s ‘‘prevail-
ing rate,’’ so-called white sheet jobs.
In the spring of 1994, carpenters Abel and Bowe worked
under Supervisor Prust at the Black River Falls, Wisconsin
library project, a white sheet job. Both employees voiced
dissatisfactions concerning pay. In June, Prust directed them
to meet with Staab about the matter in his office and Prust
also attended the meeting. When, at this conference, Abel
felt that he was not being allowed adequately to voice his
views, he got up and walked out.
Abel testified that, in the fall of 1994, while still working
at Black River Falls, he became ‘‘irritated’’ with Prust, and
he, Abel, walked off the job, for an entire week, without in-
forming anyone. At the end of the week, on Saturday, Super-
visor Schade set up a meeting between Abel and Staab, in
the latter’s office, to, in Abel’s words, ‘‘try and work out our
differences.’’ Schade testified that he acted after receiving a
telephone call from Abel, on the preceding Friday night, dur-
ing which the employee stated that he had not gone to work
all week because of conflicts with Prust. In any event, at the
meeting, Abel told Staab that Prust was bossy, and he picked
on him. According to Abel, he and Staab reached an agree-
ment that, after the Black River Falls project, Abel would
not, again, be assigned to work under Prust and, on that
basis, Abel returned to work. According to Staab, while it
was agreed, ultimately, that Abel could return to work, there
were no additional understandings concerning supervisory as-
signments. It is undisputed that, in the course of the meeting,
Staab talked to Abel, extensively, about Respondent’s leave
policy. Staab told Abel that this was hardly the first time that
Abel had failed to report to work, without notice, and that
he, Staab, had talked to Abel before about the need to call
in and report absences. Staab told Abel that he was warning
him that failure to report to work, or call in, was a serious
violation of the Company’s rules, as contained in the hand-
book distributed to the employees, and that future infractions
would be met with increasingly harsher discipline.
Following the meeting, Abel told other employees and su-
pervisors that he had an understanding with Staab that, after
Black River Falls, he, Abel, would not, again, be assigned
to work under Prust. While still at Black River Falls, on No-
vember 19, 1994, Abel received a speed letter from Staab,
warning him against carrying out his expressed plan not to
show up for work on the Friday following Thanksgiving. The
letter also referred to Abel’s having quit the jobsite, the week
before, without informing a supervisor, and warns of con-
sequences for any such future violations of company rules.
In December, Abel told Prust that he was going to get his
wage rate straightened out by seeking the assistance of the
Carpenters Union. Later in the month, the employee made
contact with union representatives and, at their suggestion, he
agreed to talk to his fellow employees about representation
and to encourage them to attend a meeting, which was there-
after set for January 20, 1995. Abel spoke to the employees
at the various jobsites, in the presence of Supervisors Schade
and Zvolena and other management officials. Following the
union meeting, at which employees signed cards designating
the Unions as their collective-bargaining representative, the
representation petition was filed, on February 15.
It is undisputed that, throughout 1995, Abel was an active,
open, and avowed union supporter, and Respondent knew it.
At the April 7 election, he served as the union observer.
b. Abel’s mid-March 2-day supension
Despite Abel’s claim of an agreement with Staab that he,
Abel, would not work under Prust after the Black River Falls
job, the employee was sent, early in 1995, to the Chippewa
Falls jobsite, a large project to which a number of the fore-
men and many of the employees were assigned, under the
overall supervision of Prust. There is evidence that, for most
of his time there, Abel, essentially, worked alone, with gen-
eral direction from Prust. By April, Supervisor Smith arrived
at the Chippewa Falls locale and, starting at that time, he su-
pervised Abel.
While working at Chippewa Falls, Abel and employee
Bowe rode to and from work with Supervisor Zvolena. It is
undisputed that, on Thursday evening, March 9, on the way
home from work, Abel told Zvolena not to pick him up for
work on the next day, Friday, March 10, as he, Abel, was
going to take off from work and ‘‘fake being sick.’’ Abel did
not report for work on Friday, March 10, and he did not call
in to report that he would be absent. When, on March 10,
Prust saw that Abel was absent, he asked Zvolena, the ma-
sonry foreman, where he was, as Prust knew that Abel, nor-
mally, rode to work with Zvolena. Zvolena told Prust that
Abel had told him, the night before, not to pick him up for
work on the next day. As Abel had not requested the day
off, Prust reported the absence to Staab’s office. By speed
letter dated March 15, 1995, Staab suspended Abel from
work for 2 days for ‘‘being a repeat violator of company pol-
icy’’ in taking another Friday off without notice and without
calling in. The letter notes, inter alia, that had Abel ‘‘been
in the union, at some point you would have been fined.’’
There is record evidence that, historically, not every em-
ployee violation of the company leave and call-in rules has
resulted in discipline. There is also ample evidence that,
through the years, the Company has imposed discipline to
and including discharge for repeat violations of attendance
rules, especially, ‘‘no calls, no shows.’’
Abel’s suspension was specifically addressed in the settle-
ment agreement, by the terms of which he was made whole
for the loss of 2 days’ pay, and the suspension was reduced
to a written warning. As the agreement was not properly set
aside, infra, it bars litigation of this issue.
c. The refusal to assign Abel to a white sheet job
in May
Abel testified that, following the April 7 election, at a
meeting of the employees and foremen, Staab asked the fore-
men to choose leadpersons, for permanent assignment as
such, and that Supervisor Schade chose Abel. Thereafter, ac-
cording to Abel, in mid-April, while he continued to work
at Chippewa Falls, Schade told him that, in a few weeks, he,
Schade, would be going to a white sheet job in Eau Claire,
Wisconsin, and Abel would go with him. However, early in
May 1995, Abel testified that Schade told him that he, Abel,
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700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would not accompany Schade to Eau Claire, as Staab had
said that Abel and Bowe were trouble on all white sheet
jobs.
In May 1995, Staab assigned Schade, apprentice Ryan
Leverance and, as a preapprentice, newly hired Jeff Forrester,
who was from Eau Claire, to the Eau Claire project. Staab
testified that, while the permanent assignment of leadpersons
to foremen was discussed, the concept was not implemented,
except in the case of employee Tom Greene, who was so as-
signed to Supervisor Prust. Schade, in his testimony, claimed
that, at the April 1995 meeting concerning, in part,
leadpersons, he, Schade, did not state a preference and, in
any event, he did not have a leadperson assigned to him.
Schade further testified that he did not, at any time, tell Abel
that he could not go with him to Eau Claire because Staab
had said that Abel was trouble on white sheet jobs.
The record evidence demonstrates that Abel was not, in
fact, assigned as leadperson to Supervisor Schade. In addi-
tion, I found convincing Schade’s testimony that he neither
selected Abel nor expressed a desire that Abel be assigned
to him, and did not tell the employee that he was not going
with him to Eau Claire because Staab regarded him as trou-
ble on such jobs. Abel’s contrary testimony is discredited.
The complaint allegation regarding the May 1995 refusal
to assign Abel to Eau Claire was not addressed in the settle-
ment agreement. However, the conduct complained of oc-
curred months before the agreement was signed, was not
‘‘specifically reserved,’’ and was readily discoverable. It is
barred from litigation as a presettlement matter.
d. The Abel discharge
Abel testified that, in mid-July, at a time when the Chip-
pewa Falls project was near completion, Supervisor Jack
Smith told him that, shortly, he would be assigned to work
at the La Chance apartment project, a 10-unit apartment
building in Phillips, Wisconsin. Abel told Smith that he did
not have to go to Phillips, because that project was under the
direction of Supervisor Prust, and he, Abel, and Staab, had
an agreement that Abel did not have to work with Prust. Ac-
cording to Abel, Smith said that he did not know anything
about such an agreement. Smith testified that, when Abel re-
ferred to the claimed agreement, he, Smith, told Abel that he
had better contact Staab and talk matters out.
On Thursday, August 3, 3 weeks before the second elec-
tion, Abel further testified, Supervisor Zvolena told him to
report to the Phillips project, on the following Monday. Abel
reminded Zvolena that he had earlier told him of the claimed
agreement with Staab, under which Abel did not have to
work for Prust. According to Zvolena, he told the employee
that any such agreement was between Abel and Staab.
At the time that Abel was assigned to Phillips, he was one
of only four individuals, and the only carpenter, employed by
B & K still at the Chippewa Falls jobsite. Also, there was
a painter, a mason, and Masonry Foreman Zvolena, who was
performing ‘‘punch list’’ work. The carpentry work was 99-
percent completed and the remainder was, thereafter, finished
by Zvolena.
Staab credibly testified that he decided to assign Abel to
the Phillips project, because of Abel’s previous experience
working on almost identical La Chance apartment buildings.
Also, that project was behind schedule because of rain and
crew shortages occasioned by employee resignations. As
noted, Staab denied that he had promised Abel, after Abel’s
August 1994 week of ‘‘no calls, no shows,’’ that the em-
ployee would not, again, be assigned to work under Prust.
Abel did not report to work on Monday, August 7, and
there followed another week of ‘‘no calls, no shows.’’ At no
time during the course of that week did Abel contact Staab,
voice his objections to the new assignment, or request an al-
ternative assignment. At the end of the week, by letter dated
August 11, 1995, Staab told Abel that, in light of his ‘‘fail-
ure to report to work and your failure to call and report your
absences,’’ for an entire week, the Company ‘‘considers you
to have voluntarily quit your employment effective August 7,
1996.’’ Abel replied by letter dated August 17, denying that
he had quit and pointing to the alleged agreement concerning
assignment to Prust. By subsequent letter, Staab informed
Abel:
My letter of (August 11, 1995) stands. I never told
you that you would not have to work with Terry. When
Jack Smith and Mike Zvolena told you and the other
employees who had been working on the Chippewa
Shoe Factory job to report to the LaChance job on
Monday August 7, 1995, you did not object. We had
work available for you, but you failed to report to work
and failed to call in or send notice August 7 through,
11, 1995 as you were required to do.
Your employment with B & K Builders, Inc. is
therefore, terminated effective August 7, 1995.
Thereafter, following an October 4, 1995 hearing, Abel was
denied unemployment compensation, for having quit his job
without good cause.
As indicated, there is uncontradicted record evidence that,
in the past, Respondent has disciplined employees to and in-
cluding termination for repeated lateness and repeated failure
to report for work or call in. The General Counsel urges,
however, that there have been instances where employees
were deemed to have quit, or failed to report to work for
lengthy periods, and later were permitted to return to their
employment positions. Thus, employee Raymond Bowe, a
union activist known to Staab as such, quit his employment
on August 17, 1995, and, on his request, in mid-September
1995, was rehired. However, prior to his August resignation,
Bowe gave Respondent advance oral and written notice of
his intentions. Also, Staab testified, during the course of his
employment Bowe, generally, complied with company poli-
cies. As to employee Steven Taskay, his ‘‘quit’’ occurred
after he requested, in February 1995, to leave work early one
day in order to take an examination at the technical college
he was attending. The request for time off was denied by
Staab, because of a conflict with employer scheduled manda-
tory safety training, and Staab told Taskey that if he did not
report, he would no longer be employed. Taskay took the
time off, anyway, and appeared for his college test. On con-
sideration of all the circumstances, Staab later decided to re-
duce Taskay’s punishment to a 1-day suspension, and to re-
quire him to make up the safety training.
The General Counsel also points to the long-term absences
and reemployment of Bret Schaefer and Mike Doescher in an
effort to show disparate treatment of Abel. Schaefer was in-
jured on the job and, for a period of months, was away from
work and received workers’ compensation. During that time,
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701B & K BUILDERS
Staab received conflicting medical reports concerning the
employee’s ability to return to work. Also, Schaefer threat-
ened to file a discrimination lawsuit if Staab did not rehire
him. After informing Schaefer that he, Staab, considered
Schaefer ‘‘to have quit,’’ Staab, by letter dated April 28,
1995, offered to reemploy him. Staab testified that this offer
of reemployment was made in consideration of the medical
matters, and the threat of suit. As to Doescher, he, in 1994,
was off work for weeks, without notice, due to a series of
back problems. He received a written warning, but was not
terminated as Staab regarded his physical problems as miti-
gating circumstances.
Richard Abel was the lead employee union activist and, on
the state of this record, it is beyond legitimate dispute that
Respondent knew it. He was discharged just 2 weeks before
the scheduled second election. At least during the period pre-
ceding the first election, and execution of the settlement
agreement, Respondent opposed unionization of its employ-
ees and, as shown, supra, engaged in actions proscribed by
the Act in furtherance thereof. Accordingly, the General
Counsel has established, prima facie, that the Abel discharge,
on August 11, 1995, was violative of the Act.
Nonetheless, I conclude that Respondent did not violate
the statute by discharging Abel and, thus, that the settlement
agreement was improperly set aside, as Respondent has
shown that it would have discharged Abel, and refused to re-
employ him, even absent his protected conduct. Abel was
discharged after failing to show up for work for a week, and
failing to call in to report his absences, in violation of estab-
lished company rules. Over a lengthy period of time, he
compiled a record of many ‘‘no calls, no shows,’’ and he re-
ceived warnings and progressively severe discipline. Particu-
larly, a year earlier, in the fall of 1994, preceding the advent
of organizational activities, he also failed to report to work
for a week, or call in, and, while he was able to convince
Staab to allow him to return to work, Staab warned Abel
concerning the seriousness of his conduct and threatened
harsh discipline for future infractions.
Few employers, indeed, would countenance ‘‘no calls, no
shows,’’ for periods of as long as a full week at a time, en-
gaged in repeatedly. After so many warnings, and progres-
sively harsher discipline, Abel stayed home, and did not even
contact his employer, in protest of his assignment to the Phil-
lips project, under Supervisor Prust, despite the demonstrably
legitimate business reasons for which he was so assigned, to
a job for which he was particularly qualified. He was dis-
charged for his repeat violations of basic company policies.
There is no showing, on the state of this record, of dispar-
ate treatment of Abel. Others, who were retained or rehired,
as pointed to by the General Counsel, engaged in entirely
different type actions (Bowe and Taskay), breached attend-
ance policies for the first time (Schaefer and Doescher),
and/or committed infractions amidst mitigating circumstances
(Taskay, Schaefer, and Doescher).
In light of the entire record, I am persuaded that the Abel
discharge was a result of lawful business considerations and
not in retaliation for protected conduct. I conclude that the
firing was not unlawful under the Act and, thus, that the fact
of the termination did not give rise to justification for setting
aside the settlement agreement.
C. The Representation Case
The tally of ballots following the rerun election conducted
on August 25, 1995, showed that five votes were cast for the
Unions, and two votes were cast against representation.
There were three challenged ballots which were sufficient in
number to affect the election results.
At trial, the Petitioners withdrew their challenges to the
ballots of Jeff Forster and Marvin Doescher and agreed that
their ballots may be opened and counted. In light of my ear-
lier finding that the preelection discharge of Richard Abel
was not in violation of the Act, the Employer’s challenge to
his ballot must be sustained. This will make it unnecessary
to open and count the Forster and Doescher ballots, as they
are, now, too few in number to affect the results. A majority
of the valid ballots were cast in favor of representation by
the Joint Petitioners.
CONCLUSIONS OF LAW
1. B & K Builders, Inc. is an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Joint Charging Parties are, each, labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent did not violate the Act by discharging its
employee Richard Abel.
4. The Regional Director improperly withdrew approval of
the July 27, 1995 settlement agreement, which is dispositive
of all other allegations contained in the consolidated com-
plaint.
[Recommended Order for dismissal omitted from publica-
tion.]
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