C. Factotum, Inc.

National Labor Relations Board - Board Decisions

May 30, 2001

334 N.L.R.B. 189 (N.L.R.B. 2001)

C. FACTOTUM, INC. 189
C. Factotum, Inc. and David Kulczycki and Ronald
Carter, Individuals. Cases 7–CA–42352(1) and 7–
CA–42352(2)
May 30, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On September 20, 2000, Administrative Law Judge C.
Richard Miserendino issued the attached decision. The
Charging Parties, appearing pro se, filed exceptions and
supporting statements. The General Counsel filed excep-
tions and a supporting brief. The Respondent filed cross-
exceptions, a supporting brief, and an answering brief to
the General Counsel’s exceptions.
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,1 and conclusions and to adopt
the recommended Order.
ORDER
The recommended order of the administrative law judge
is adopted and the complaint is dismissed.

Richard F. Czubaj, Esq., for the General Counsel.
John C. Dickinson, Esq., of Birmingham, Michigan, for the Re-
spondent.

DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge.
This case was tried in Detroit, Michigan, on April 24, 2000. The
charge in Case 7–CA–42352(1) was filed on September 1, 1999,
and the charge in Case 7–CA–42352(2) was filed on November
30, 1999.1 A consolidated complaint was issued on November
30, 1999. It alleges that in June and July 1999 the Respondent
violated Section 8(a)(1) of the Act by threatening employees with
loss of employment if they did not stop complaining about wages
and benefits; by threatening employees with loss of employment
if they questioned the Respondent or complained to the media
about their concerns regarding wages and benefits; by orally
promulgating an overly broad no-talking rule restricting employ-
ees from discussing the Union, or their wages and benefits, while
allowing them to discuss other subjects; and by enforcing the
above-referenced oral no-talking rule. The consolidated com-
plaint further alleges that the Respondent violated Section 8(a)(3)
of the Act on or about August 6, 1999, by laying off and dis-
charging Charging Parties David Kulczycki and Ronald Carter.

1 The Charging Parties and the General Counsel each have excepted
to some of the judge’s credibility findings. The Board’s established
policy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance 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 care-
fully examined the record and find no basis for reversing the findings.
In adopting the judge’s dismissal of the allegations of 8(a)(1) and (3)
violations by the discharge of employee David Kulczycki, Member
Liebman relies solely on the credited evidence that Kulczycki was
insubordinate, confrontational, and abusive to Supervisor Larry Moss in
front of other employees. She does not pass on the judge’s finding that
the General Counsel failed in carrying his initial evidentiary burden
under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). See Alldata Corp., 327
NLRB 127 at fn. 2 (1998).
1 All dates are in 1999 unless otherwise indicated.
The Respondent’s timely answer denied the material allega-
tions of the complaint. The parties have been afforded a full
opportunity to appear, present evidence, examine and cross-
examine witnesses, and file briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Michigan corporation, is a painting and
plastering contractor located in Detroit, Michigan. During the
12-month period immediately preceding the filing of the charges,
the Respondent in conducting its business has derived gross
revenues in excess of $500,000, and has provided services valued
in excess of $50,000 to an enterprise located in the State of
Michigan, which is directly engaged in interstate commerce. I
therefore find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
I further find that Local 22, International Brotherhood of
Painters and Allied Trades, AFL–CIO (Union or Local 22), is a
labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a small painting contractor owned and op-
erated by Thomas Cieszkowski (Tom C.). It does not employ
any regular full-time employees. Instead, employees are hired on
an “as needed” basis depending on the size and type of the job.
The Respondent is nonunion, but occasionally works on prevail-
ing wage projects.
Charging Party David Kulczycki had worked on and off for
the Respondent for approximately 5 years, sometimes as a painter
and sometimes as a foreman. He was a longtime friend of David
C.ieszkowski (David C.), the brother of Tom C. and lived in an
apartment building owned by Tom C. Kulczycki and Tom C. had
a long-running confrontational relationship. The two argued
about work-related matters because Kulczycki would question
Tom C.’s judgment and ignore his instructions. Tom C. never-
theless continued to employ Kulczycki because he was a close
friend of David C..
Charging Party Ronald Carter (Carter) also worked for the Re-
spondent on and off for a number of years. He often was as-
signed to work with Kulczycki.
334 NLRB No. 23
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190
B. The Detroit Public Schools District Project
In June 1999 the Respondent began a 2-month project painting
the interiors of the Detroit public schools. The Respondent
signed a project labor agreement as a signatory subcontractor
agreeing to pay its employees prevailing wages and to make
payments on their behalf to the benefit trust funds of the appro-
priate union affiliate of the Greater Detroit Building Trades
Council (i.e., Local 22). (R. Exh. 2.)
Larry Moss was hired by the Respondent specifically to super-
vise the Detroit schools project. He had operated his own paint-
ing company for many years and had over 40 years of painting
experience. Moss was responsible for supervising all of Respon-
dent’s employees, including Kulczycki and Carter, who were also
hired for the Detroit schools project.2
Tom C. told every employee at the time of hire that the Detroit
schools project was a union job and that they would have to join
the painters’ union. At a meeting held at the beginning of the
project, he explained that everyone would be paid the prevailing
wage and that they would receive union benefits. Several em-
ployees asked whether their contributions to benefits would be
paid in a lump sum or in installments. Tom C. told them that the
benefit payments would be deducted from their paychecks over a
period of time, but he was unsure how the contributions would be
made to the Union.
Tom C. unsuccessfully sought guidance from the general con-
tractor, Barton Marlow Co., about making the benefit payments
to the Union. He also tried to pay the benefit monies directly to
the Union, but it refused to accept the payments unless the Re-
spondent signed a 5-year collective-bargaining agreement. Al-
though Tom C. believed that he was required to sign a contract
with the Union only for the duration of the Detroit schools pro-
ject, he offered to sign a 1-year contract with the Union, which
the Union rejected. In the meantime, Tom C. held weekly meet-
ings with the employees to keep them apprised of his attempts to
make the benefit payments.
C. Workplace Disharmony
From the beginning of the project, Charging Party Kulczycki
was unhappy about his pay and status on the schools project. He
believed that he was entitled to more overtime and that he should
have been made a foreman because of his skill, experience, and
seniority with the Respondent. (Tr. 77–78.) In early July,
Kulczycki expressed his dissatisfaction to Tom C.. After hearing
that other employees were receiving a higher wage than he was
being paid, Kulczycki confronted Tom C.. He complained that
he should be receiving a higher wage and more overtime hours
because of his seniority. He pointed out that his first week’s
paycheck was short by 1-½ hours. Kulczycki opined that he
should have been made a foreman and also questioned Tom C.
about making the appropriate contributions to the union benefit
funds. (Tr. 74.) The two argued and their meeting ended with
them cursing and yelling at each other in the hallway.

2 Kulczycki testified that he heard about the school project from
someone in his apartment building. He stated that originally he was
hired as a night supervisor for the school project, but was assigned to
paint during the day after Tom C. decided there would be no night
crew.
Kulczycki also showed little regard for his immediate Supervi-
sor Larry Moss. On one occasion when Moss told Tom C. that
Kulczycki and Carter were taking too long to paint a bathroom,
Tom C. asked them to pick up the pace. Tom C. testified that
Kulczycki became irate, cursed Moss, stated that Moss knew
nothing about painting, and stood in the hall screaming at Tom C.
(Tr. 238.)
Supervisor Larry Moss complained to Tom C. about Kulczy-
cki and Carter on a weekly basis and repeatedly urged him to fire
them.3 (Tr. 150.) He testified that they had poor attitudes and
did not work up to their potential. According to Moss, they often
failed to follow his instructions and took his remarks negatively.
(Tr. 148.) Moss told Tom C. that Kulczycki and Carter were
trying to slow down work4 and that their poor work attitude
would adversely affect the other employees. (Tr. 237.)
Carter testified that there was a personality clash between he
and Larry Moss, which Carter attributed to the fact that he and
Kulczycki were close friends, and that they had worked for the
Respondent for a long time.
D. The July 8 Meeting
As the schools project progressed, there were daily discussions
by the employees about the status of the union benefits and what
was happening to the money being deducted from their pay-
checks. On or about July 8, 1999, Kulczycki and Carter, and
some other employees, decided to contact the Union. Around
lunchtime, Kulczycki phoned the union hall. A short time later,
Union Representative Bill Kesslak arrived at the jobsite and
called a meeting of all the Respondent’s employees. When Su-
pervisor Larry Moss heard that the Union was going to have a
meeting on the jobsite, he gathered the Respondent’s employees
for the meeting.
Tom C. joined the meeting after it started, unaware that the
Union was even on the jobsite. He listen to Union Representa-
tive Kesslak explain to the employees that they were required to
pay union dues and make payments toward union benefits. In
everyone’s presence, Tom C. stated that he had tried to pay the
benefit money to the Union, but it would not accept the pay-
ments. Kesslak responded that the Union would not accept the
payments unless the Respondent signed a 5-year contract with
the Union. Tom C. replied that he was willing to sign a 1-year
contract, but he did not think that he should have to sign a 5-year
contract.
Even though the meeting lasted more than an hour and a half,
Tom C. permitted his employees to remain until it ended and paid
them for the time spent at the meeting.
3 In addition to Moss, other coworkers complained to Tom C. that
Kulczycki and Carter were working slowly. (Tr. 111, 189.) Employee
Jonathan McDowell testified that he urged Tom C. to fire Kulczycki,
but Tom C. refused because he had known Kulczycki for many years
and thought that he would work out. (Tr. 172.)
4 Employee Michael Mantyk credibly testified that Kulczycki told
him to slow down because he wanted more overtime. (Tr. 211.)
Kulczycki denied telling any employee to slow down. For demeanor
reasons, I credit Mantyk’s testimony on this point.

C. FACTOTUM, INC. 191
E. More Questions About Benefits
In mid-July, Kulczycki asked Supervisor Larry Moss when the
employees were going to receive their union benefits. Even
though the union representative had essentially corroborated
everything that Tom C. had told the employees, Kulczycki was
not satisfied that Tom C. was doing everything he could to obtain
the benefits.5 Moss told him that he thought the benefits would
“kick-in” after 90 days. Beth Yearly, who worked with Kulczy-
cki, asked Larry Moss who was going to pay for the benefits?
She was unsure whether the Union or the Respondent was going
to contribute to the benefits, even though that information had
been provided at the union meeting. Moss lost his temper. He
told Yearly, in the presence of Kulczycki and Carter, that he was
sick of all the questions about benefits. He stated that he had
tried his best to answer everyone’s questions and that they should
go down to the union hall to talk to somebody there. Moss in-
structed Yearly, Kulczycki, and Carter to punch out and leave.
Kulczycki and Carter ignored Moss’ instructions and went
back to work. Yearly was offended by the tone and manner in
which Moss spoke to her. She complained to Tom C., who
apologized for Moss’ behavior. He attributed Moss’ comments
to the fact that Kulczycki had persisted in questioning Moss
about the union benefits and that Moss reacted as he did because
she was working with Kulczycki. Tom C. told Yearly that she
did not have to punch out, if she did not want to. Yearly never-
theless left early and went to the union hall.
Later that day, Tom C. promoted Kulczycki to foreman and
gave him a $3-per-hour wage increase. He testified that his
brother, David C., suggested the promotion and pay raise as a
way of motivating Kulczycki to work harder. (Tr. 244.)
F. Talk on Your Time, Work on My Time
Despite the union meeting, and Tom C.’s weekly meetings to
answer questions about joining the Union and receiving benefits,
the employees were stopping work with increasing frequency to
talk about joining the Union and receiving benefits. (Tr. 183,
232–233.) Former employee Yearly testified that the employees
often stopped work for 10–15 minutes to talk about joining the
Union and receiving benefits. (Tr. 26–27.)
In mid-July, Tom C. called a meeting of Kulczycki’s work
crew. Kulczycki testified that “Tom C.ome in all agitated, pull us
all into the meeting. Said he’s had enough talk about the union.
He doesn’t care if anybody calls the union, calls the newspapers,
calls anybody else. That they would be on the street looking for
another job. And while he was saying this, he was staring di-
rectly at me.”6 (Tr. 48.) Carter testified that “Tom C.ame in. It
was a very quick meeting. Said, ‘I’ve had enough of this. I’ve
had enough talk about the union. I’ve had enough talk about the
benefit money. I’m not a crook.’ And basically anybody that
wanted to go to the news, there problem solvers because that was
coming up a lot. ‘Go ahead and you will be out of a job.’” (Tr.
109.)

5 Tom C.’s secretary, Kathie Patterson, credibly testified that
Kulczycki asked her if she knew anything about the union benefits, and
she told him that Tom C. was trying to obtain information from the
general contractor Barton Malow Co., about paying the benefit moneys
to the fund. (Tr. 196.)
6 The credible evidence shows that Kulczycki had been telling some
employees that Tom C. could not be trusted. Employees Kathie Patter-
son and Michael Mantyk testified that Kulczycki told them that Tom C.
had been convicted of embezzlement. (Tr. 196, 210.) Kulczycki denied
making such statements. For demeanor reasons, I credit the testimonies
of Patterson and Mantyk.
Tom C. testified that he lost his temper at the end of a meeting
and stated, “Listen, I have had enough of this. You know what, if
you want to work, stay here. If you don’t, get off the job.” (Tr.
233.) He testified that he told the employees, “I don’t want to
hear this talk anymore,” referring to all of the questions—“I don’t
want to hear this talk anymore. I answered every question you
had dozens of time . . talk on your own time, work on my time.”
(Tr. 234.) For demeanor reasons, I credit Tom C.’s version of
what he told the employees.
G. The Layoffs
Although the Detroit schools project originally was scheduled
to end on August 16, it began winding down about a week early.
On Thursday, August 5, Tom C. asked Larry Moss to pick eight
or nine of the best workers to finish the project over the weekend.
(Tr. 248, 153.) Moss prepared a list of employees, which ex-
cluded Kulczycki and Carter. When Tom C. saw the list, he told
Moss to add Kulczycki to the crew. Tom C. testified that he felt
obligated to accommodate Kulczycki because he was a close
friend of his brother. Moss reluctantly added Kulczycki to the
crew.
The next day, Friday, August 6, Moss walked the jobsite ask-
ing the employees that he had selected if they wanted to work on
Saturday and Sunday. On Kulczycki’s crew, Moss spoke to
Larry Miller, Steve Dzurnak, and Roxanne Kelm. Kulczycki
overheard Moss ask Dzurnak to work the extra days, and asked
Moss if he and Carter were on the list. When Moss assured him
that he was on the list to work, Kulczycki asked what about
Carter. Moss walked away without responding. (Tr. 54.)
Carter testified that he realized that August 6 would probably
be his last workday, when he overheard some employees talking
about being asked to work on Saturday. (Tr. 114.) A coworker,
Roxanne, told Carter that Moss told her that she was selected to
work on Saturday because of her good effort. Carter speculated
that he was not asked to work because he and Moss had a per-
sonality clash. (Tr. 114.)
When he got home, however, Carter phoned Tom C. com-
plaining that Moss did not ask him to work on Saturday and Sun-
day. According to Carter, Tom C. told him, “Ron, I have to stand
behind Larry’s decision. . . . Just give it a little while. We’ll see
what’s going on.” (Tr. 116.)
H. The Discharge of Kulczycki
On Friday morning, August 6, Moss told the employees that
they would receive their paychecks at 3:30 p.m.7 (Tr. 153.)
Moss testified that around 1:30 p.m., Kulczycki and Carter, along
with several other employees, came to him demanding their pay-
checks. When Moss reiterated that the paychecks would be
given out at 3:30 p.m., Kulczycki became upset, yelled and
cursed at Moss, and demanded his paycheck. At that point, Moss
7 According to the unrebutted testimony of employee Jonathan
McDowell, the 8-hour workday on Friday ends at 3:30 p.m. (Tr.172.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192
gave Kulczycki his paycheck and told him that he was not work-
ing anymore, he was done.
Kulczycki did not deny having a confrontation with Moss, but
gave a different version of the event. He testified that around
noon he and Carter asked if the paychecks were ready, and were
told that the checks had not arrived. (Tr. 54.) At 3:30 p.m.,
Carter again asked Moss for his paycheck because he was leaving
early.8 Kulczycki testified that he and the rest of his crew went
with Carter to get their paychecks because they had heard that the
paychecks were ready. According to Kulczycki, Carter reminded
Moss that he was leaving early, so Moss gave him his paycheck.
When Kulczycki asked Moss for his paycheck, Moss became
upset and began cursing at him. Kulczycki stated that he cursed
back at Moss and told him that because it was a union job, the
paychecks had to be distributed between 8 a.m.–4:30 p.m.
Kulczycki testified that Moss handed out all of the checks and
that he went back to work. Kulczycki acknowledged that the
exchange took place in front of his crew and several other em-
ployees. (Tr. 75.)
Employee Jonathan McDowell generally corroborated Moss’
testimony and contradicted Kulczycki’s. He recalled two con-
frontations between Moss and Kulczycki on August 6. He testi-
fied that at noon, Kulczycki and his crew approached Moss ask-
ing for their paychecks. According to McDowell, Moss stated,
“We don’t hand checks out until 3:30 p.m.” Kulczycki re-
sponded, “That’s bullsh_t, . . . we deserve our checks now, and
we have to go cash them.” Moss repeated that he would hand out
the checks at 3:30 p.m. (Tr. 172–173.) Around 1:30 p.m.,
Kulczycki and his crew returned asking for paychecks again.
Moss got very upset, swore a couple of times, told Kulczycki he
had to wait, and turned to walk away. McDowell testified that
Kulczycki got in front of Moss, blocking his way and told him,
“I’m going to kick your ass if we don’t get the checks.” (Tr. 173.)
Moss relented by handing out the checks to everyone. McDowell
stated that the second confrontation took place in the parking lot
where all of the painters were taking their break. (Tr. 176.)
Employee Michael Harris testified that he walked in at the end
of the argument. He stated that the employees normally received
their paychecks in the morning, but the checks were late, so they
weren’t going to get them until the afternoon. (Tr. 191.) He
testified that Kulczycki became upset, argued, and cursed Larry
Moss. He also heard Moss tell Kulczycki that he was not work-
ing on Saturday, that there was no sense for him to come to work
on Saturday. (Tr. 194.)
I credit the testimony of Larry Moss that Kulczycki and Carter
requested their paychecks at 1:30 p.m. and that when he refused
to give Kulczycki his paycheck, he became confrontational and
abusive. Moss was a very credible witness, with good recall,
who answered questions directly. His testimony is corroborated
by employees McDowell and Harris, neither of whom worked for
the Respondent at the time of trial. In contrast, Kulczycki was
not a credible witness. He sought to downplay the intensity of
his remarks and he unpersuasively denied threatening Moss. (Tr.
55, 96.) Thus, for demeanor, and other reasons, I do not credit
Kulczycki’s testimony on this point. Also, for demeanor reasons,
and because of his close affinity to Kulczycki, I do not credit the
testimony of Carter’s testimony that the incident occurred around
3:30 p.m.

8 Carter had told Moss that morning that he would have to leave at
3:30 p.m. in order to insure his automobile. He testified that sometime
before 3:30 p.m., Kulczycki told him that he had not been selected to
work on Saturday and Sunday. (Tr. 115.) Around 3:20 p.m., Carter
decided to ask Moss for his paycheck and leave. Carter testified that at
first Moss told him he would have to work to 5:30 p.m., but gave him
his paycheck after being reminded of their conversation earlier that day.
Carter left as Kulczycki and Moss began to argue.
I. The Aftermath
Tom C. heard about the paycheck incident and Kulczycki’s
dismissal from Larry Moss and several other employees. Later
that night, in the parking lot of their apartment building, Kulczy-
cki spoke to Tom C. about returning to work. David C. was pre-
sent. Kulczycki told Tom C. that “it wasn’t right what Larry did.
Larry started this whole trouble. He had no reason to talk to me
like that. The checks should have been given out.” (Tr. 55.) The
two argued. According to Kulczycki, Tom C. told him that he
should have gotten rid of him long ago, that he was tired of all
the union trouble he was making, and he was tired of everything
Kulczycki had been telling the employees. According to Tom C.,
Kulczycki was loud and abusive. David C. testified that he was
appalled at the way Kulczycki spoke to Tom C.. He realized then
that Tom C. had no choice, but to uphold Moss’ decision.
The next morning, Kulczycki got ready for work thinking that
everything had settled down, but Tom C. would not let him re-
turn to work.
J. Analysis and Findings
1. 8(a)(1) allegations
Paragraph 8 of the complaint alleges that in late June 1999,
Tom C. threatened employees with the loss of employment if
they did not stop complaining about wages and benefits. Counsel
for the General Counsel does not specifically address this allega-
tion in his posthearing brief. Nor is there any evidence in the
record to support it. Accordingly, I shall recommend the dis-
missal of the allegations of paragraph 8 of the complaint.
Paragraph 9 (a)–(c) of the complaint alleges that in mid-July
1999, Tom C. orally promulgated a no-talking rule restricting
employees from discussing the Union, wages, benefits, or other
terms and conditions of employment while permitting employees
to discuss other subjects. It further alleges that in accordance
with the no-talking rule, employees were told to stop talking
about benefits, and threatened with loss of employment if they
questioned the Respondent or complained to the media about
their concerns regarding benefits.
The evidence shows that in mid-July, the employees were anx-
ious to join the Union and to begin receiving union benefits. The
Union refused to accept the paycheck deductions for union bene-
fits, unless the Respondent signed a 5-year collective-bargaining
agreement. The Respondent was willing to sign a 1-year con-
tract. The stalemate delayed the receipt of benefits,9 which
prompted the employees to question what was happening to the
paycheck deductions. In this connection, the evidence also
shows, and I find, that Kulczycki was circulating rumors that
9 The evidence shows that Tom C. eventually paid the paycheck de-
ductions to the Union in November 1999.

C. FACTOTUM, INC. 193
Tom C. was an embezzler. With increasing frequency, the em-
ployees were stopping work for 10–15 minutes at a time to dis-
cuss these issues, even though Tom C. held ongoing meetings
with the employees to keep them abreast of what was occurring.
Thus, production was being disrupted because the employees
frequently stopped working for prolonged time periods to talk to
each other about the status of their union benefits. Thus, I find
that it was the frequent work stoppages, and not the talking, that
prompted Tom C. to impose the no-talking rule.
The evidence shows that Tom C. told the employees that he
did not want to hear anymore talk about the Union or benefits,
that the employees should work on his time and talk on their own
time, and that if they did not want to work they should get off the
job. (Tr. 233.) The evidence shows that this was the only time
that Tom C. made such a statement. (Tr. 31.)
The Board has held that where an employer adopts a rule plac-
ing restrictions on employees during a union campaign, it does
not automatically follow that the rule is invalid, particularly if the
employer has acted for legitimate business interests, rather than
for unlawful reasons. Brigadier Industries Corp., 271 NLRB
656, 657 (1984). The evidence shows that the Respondent’s no-
talking rule was presumptively valid. Talking about the Union or
benefits was not completely prohibited. Rather, by telling the
employees to talk on their own time and work on his time, Tom
C. effectively prohibited the employees from discussing these
issues while performing actual job duties, but permitted discus-
sion during nonworking time, that is, on the employees’ own
time. Our Way, Inc., 268 NLRB 394, 395 (1983). In addition,
the General Counsel does not argue nor is there credible evidence
reflecting that the employees were permitted to talk about other
subjects during working time, but not allowed to discuss the Un-
ion or union benefits.
Although counsel for the General Counsel argues at page 4 of
his posthearing brief that the no-talking rule was specifically
instituted to inhibit and/or interfere with the employees’ union
and protected concerted activities, there is no evidence to support
such an inference. Rather, the evidence shows that Tom C. told
all employees at the time of hire that they would have to join the
Union, that he deducted union dues and benefit contributions
from their paychecks and unsuccessfully sought to pay the
money deducted to the Union, that the Union was allowed to
conduct an unannounced meeting at the workplace which ran
well beyond the normal lunchbreak and that the employees who
attended were nevertheless paid for the entire time, and that Tom
C. was willing to sign a 1-year collective-bargaining agreement
in order to appease the Union and resolved the issue, even though
he was only obligated to sign a contract for the duration of the
project. In addition, the cases cited by counsel for the General
Counsel10 are inapposite because there, unlike here, there was a
blanket restriction on discussing the Union and/or wages and
benefits at the workplace (i.e., during working hours).
In addition, I find that Tom C.’s statement to the employees “if
you want to work, stay here. If you don’t, get off the job,” which
was made in the context of telling them to talk on their own time,
did not restrain or inhibit the employees from discussing the
Union or benefits during nonworking time and therefore does not
constitute an independent violation of Section 8(a)(1) of the Act.

10 Capital EMI Music, 311 NLRB 997 (1993); Turnbull Cone Baking
Co., 271 NLRB 1320 (1984), enfd. 778 F.2d 292 (6th Cir. 1985); Hil-
ton Environmental, Inc., 320 NLRB 437 (1995).
Accordingly, I shall recommend the dismissal of the allega-
tions in paragraphs 9 (a)–(c) of the complaint.
2. 8(a)(3) allegations
a. Legal standard
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board es-
tablished an analytical framework for deciding discrimination
cases turning on employer motivation. The General Counsel
must persuasively establish that the evidence supports an infer-
ence that protected conduct was a motivating factor in the em-
ployer’s decision.11 Specifically, the General Counsel must es-
tablish protected concerted activity, knowledge, animus or hostil-
ity, and adverse action, which tends to encourage or discourage
protected concerted activity. Farmer Bros. Co., 303 NLRB 638,
649 (1991). Inferences of animus and unlawful motive may be
inferred from the total circumstances proved and in some circum-
stances may be inferred in the absence of direct evidence. Fluor
Daniel, Inc., 304 NLRB 970 (1991). Once accomplished, the
burden shifts to the employer to persuasively establish by a pre-
ponderance of the evidence that it would have made the same
decision even in the absence of protected concerted activity. T&J
Trucking Co., 316 NLRB 771 (1995).
b. The discharge of Kulczycki
The evidence shows that Kulczycki engaged in discussions
with the other employees about joining the Union and obtaining
union benefits. He also raised questions about the delay in ob-
taining union membership and the status of the paycheck deduc-
tions. His interaction with the employees was in support of a
common goal (i.e., joining the Union) and also related to their
terms and conditions of employment. Thus, I find that Kulczycki
engaged in protected concerted activity under Section 7 of the
Act. Meyers Industries, 268 NLRB 493 (1984).
The undisputed evidence also shows Tom C. knew that
Kulczycki, along with many other employees, participated in
daily discussions about joining the Union and receiving union
benefits.12 These discussions, which frequently disrupted work
time, eventually prompted Tom C. to implement the “no-talking”
rule. At one point, Tom C. specifically told Kulczycki to stop
“playing lawyer” and get back to work, which supports a reason-
able inference that Tom C. viewed Kulczycki as a protagonist of
the discussions. Thus, the evidence shows that the Respondent
had knowledge of Kulczycki’s protected concerted activities.
However, counsel for the General Counsel does not argue nor
is there evidence of union animus. The unrebutted evidence
discloses that Tom C. told everyone at the time of hire that they
would have to join the Union, that he deducted union dues and
benefit contributions from their paychecks, that he accommo-
11 Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
12 Although the unrebutted evidence shows that Kulczycki phoned
the Union on July 8 and invited the union representative to address the
employees, there is no evidence that Tom C., Larry Moss, or any other
manager or agent of the Respondent was aware of this fact.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194
dated the Union by allowing an unannounced union meeting to
be held on the jobsite, that more than once he attempted to pay
the Union the amounts deducted for union dues and benefits, and
that he offered to sign a 1-year collective-bargaining agreement
with the Union. In addition, there is no evidence that the Re-
spondent sought to impose a blanket restriction on the employees
discussing the Union and/or union benefits. Rather, a valid rule
was imposed for a legitimate business reason, that is, to prevent
the repeated disruption of work. Thus, I find that the General
Counsel has failed to show requisite animus.
Finally, the General Counsel has failed to show that Kulczycki
was discharged because he was engaged in the protected con-
certed activity. Instead, the evidence shows that despite the fact
that Kulcyzcki frequently argued with Tom C., made disparaging
remarks about his integrity, questioned his true motives, disre-
garded Moss’ instructions, and worked slowly to obtain more
overtime (while encouraging other employees to do the same),
Tom C. declined to fire Kulczycki because of his personal rela-
tionship with David C., right up until the very end of the schools
project when he told Moss to place Kulczycki on the work list for
Saturday and Sunday. The evidence further shows that only after
Kulczycki was insubordinate, confrontational, and abusive to-
ward Moss in front of the other employees, did Tom C. stand
behind the decision of his front line manager, and decline to over-
turn the discharge.
Thus, I find that counsel for the General Counsel has failed to
satisfy his initial evidentiary burden under Wright Line. Accord-
ingly, I shall recommend the allegations concerning the discharge
of Richard Kulczycki in paragraph 10 of the complaint be dis-
missed.
c. The layoff of Ronald Carter
Ronald Carter also participated in the discussions about join-
ing the Union and obtaining union benefits. Contrary to the Gen-
eral Counsel’s assertions, he was not a protagonist like Kulczy-
cki. To the contrary, Carter testified that he kept quiet and did his
work in order to avoid exacerbating a personality clash with
Moss. (Tr. 127–128.) Carter’s close working relationship with
Kulczycki, however, supports a reasonable inference that the
Respondent either knew or correctly surmised that Carter partici-
pated in the discussions about joining the union and obtaining
union benefits. Permanent Label Corp., 248 NLRB 118, 136
(1980). Thus, I find that Carter, like Kulczycki, was engaged in
protected concerted activity known to the Respondent.
As with Kulczycki, however, the General Counsel does not ar-
gue nor is there any evidence that the Respondent opposed the
Union or opposed the employees talking about joining the Union
or obtaining benefits during nonworking time. In the absence of
such evidence, the General Counsel has failed to satisfy a crucial
criterion of the Wright Line standard.
Finally, there is no evidence that Carter was laid off because
he participated in the discussions about joining the Union and
receiving union benefits. Contrary to the General Counsel’s
assertion that Carter was singled out, the evidence shows that he
was one of many employees laid off on August 6. The credible
evidence also show that Carter did not work to his potential and
as a result was not regarded highly by Moss.
For these reasons, I find that counsel for the General Counsel
has failed to satisfy his initial evidentiary burden under the
Wright Line analysis. Accordingly, I shall recommend that the
allegations in paragraph 10 of the complaint pertaining to Ronald
Carter be dismissed.
CONCLUSION OF LAW
The Respondent has not violated the Act in any manner al-
leged in the complaint.
On these findings of fact and conclusion of law and on the en-
tire record, I issue the following recommended13
ORDER
The complaint is dismissed.

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.