SHAMBAUGH & SON, L.P.

National Labor Relations Board - Board Decisions

Jun 10, 2016

364 NLRB No. 26 (N.L.R.B. 2016)

364 NLRB No. 26
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Shambaugh and Son, L.P. and International Associa-
tion of Heat and Frost Insulators and Allied
Workers, Local 41. Cases 25–CA–141001 and
25–CA–145447
June 10, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On September 17, 2015, Administrative Law Judge
Charles J. Muhl issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. The Respond-
ent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions, to

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(1) of the Act by interrogating job appli-
cant Joe Koontz concerning his union membership, activities, and sym-
pathies, and by requiring Koontz to provide written evidence of his
withdrawal from the Union to receive consideration for employment.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by refusing to consider for hire and refusing to hire
Ryan Wiersema, we rely on the judge’s finding of pretext and the fol-
lowing additional evidence of animus: (1) the 8(a)(1) violations, to
which there are no exceptions; and (2) the timing of the Respondent’s
refusal to hire Wiersema, within a few months of witnessing him partic-
ipate in a bannering campaign at the Respondent’s headquarters. Be-
cause we adopt the judge’s credibility finding that Wiersema did not
threaten employee Shepherd while holding a knife, we do not reach the
question of whether the threat would be relevant if it had been made.
Member Miscimarra disagrees with the judge’s suggestion that,
when an employer proffers a false reason for refusing to hire a job
applicant, the General Counsel necessarily satisfies his burden of prov-
ing unlawful motivation. Although Member Miscimarra believes that
stating a false reason for an adverse employment action may adversely
affect credibility and in some circumstances may support a finding that
the real reason is an unlawful one, depending on the rest of the evi-
dence, it does not necessarily prove that the respondent was motivated
by unlawful considerations. See Libertyville Toyota, 360 NLRB No.
141, slip op. at 11 fn. 10 (2014) (Member Miscimarra, concurring in
part and dissenting in part), enfd. sub nom. AutoNation, Inc. v. NLRB,
801 F.3d 767 (7th Cir. 2015).
amend the remedy, and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Shambaugh & Son, L.P., Fort Wayne, Indiana, its offic-
ers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Make Ryan Wiersema whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision, as amended in this deci-
sion.”
2. Substitute the following for paragraph 2(c).
“(c) Compensate Ryan Wiersema for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 25,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. June 10, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

2 In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge’s recommended
tax compensation and Social Security reporting remedy. We shall
modify the judge’s recommended Order and substitute a new notice to
reflect this remedial change.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate job applicants
about their union membership, activities, and sympa-
thies.
WE WILL NOT require applicants for employment to
provide written evidence of their withdrawal from the
Union in order to receive consideration for employment.
WE WILL NOT refuse to hire or consider for hire appli-
cants for employment because of their union or other
protected, concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ryan Wiersema employment in the position
in which he would have been hired in the absence of the
discrimination against him, or, if that job no longer ex-
ists, in a substantially equivalent position, without preju-
dice to his seniority or any other rights or privileges he
would have enjoyed.
WE WILL make Ryan Wiersema whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, less any net interim earnings,
plus interest.
WE WILL compensate Ryan Wiersema for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 25, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to our unlaw-
ful refusal to hire Ryan Wiersema or consider him for
hire, and, within 3 days thereafter, WE WILL notify him in
writing that this has been done and that our unlawful
conduct will not be used against him in any way.
SHAMBAUGH AND SON, L.P.
The Board’s decision can be found at
www.nlrb.gov/case/25–CA–141001 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Raifael Williams, Esq., for the General Counsel.
William T. Hopkins, Jr., Esq. (Barnes & Thornburg LLP), of
Fort Wayne, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
CHARLES J. MUHL, Administrative Law Judge. This case
arises out of a salting campaign conducted by the International
Association of Heat and Frost Insulators and Allied Workers,
Local 41 (the Union) at Shambaugh and Son, L.P. (the Re-
spondent). The General Counsel’s complaint, which issued on
March 31, 2015, is premised upon unfair labor practice charges
and an amended charge filed by the Union on November 17,
2014, and January 30, 2015. The complaint alleges that the
Respondent violated Section 8(a)(3) of the National Labor Re-
lations Act (the Act), by refusing to hire, or consider for hire,
Union Business Manager Ryan Wiersema since June 27, 2014,
due to his union and protected, concerted activities. The com-
plaint also alleges that the Respondent violated Section 8(a)(1)
of the Act on September 18, 2014, by interrogating job appli-
cants concerning their union membership, activities, and sym-
pathies, as well as by requiring job applicants to provide written
evidence of their withdrawal from the Union to receive consid-
eration for employment. The Respondent denies that it violated
the Act as alleged.
I conducted a trial on the complaint on July 7 and 8, 2015, in
Fort Wayne, Indiana. Counsel for the parties filed post hearing
briefs in support of their positions on August 12, 2015, which I
have considered.
The only matter in dispute in this case is whether the Re-
spondent’s decision not to hire Wiersema was motivated by
antiunion animus. The facts are intriguing, in light of the Re-
spondent’s asserted reason for not hiring Wiersema and the
history between Wiersema and Dean Sheedy, the Respondent’s
project manager who made the decision. At the hearing,
Sheedy contended that he refused to hire Wiersema in June
2014 because of alleged misconduct that Wiersema engaged in
7 years earlier, when the two worked together for a different
employer. Sheedy claimed that Wiersema pulled a knife on and
threatened to gut another employee.
As discussed fully herein and irrespective of whether
SHAMBAUGH AND SON, L.P. 3
Wiersema actually made that threat, I do not credit Sheedy’s
testimony that he relied upon Wiersema’s alleged 2007 mis-
conduct when declining to hire him in June 2014. I therefore
conclude that the Respondent’s asserted reason for not hiring
Wiersema is a pretext, sufficient to establish its antiunion ani-
mus. Because the Respondent’s asserted reason is a pretext, the
General Counsel has established that Wiersema’s union activity
contributed to the refusal to hire him and the Respondent is
precluded from establishing that it would not have hired
Wiersema absent his union activity.
On the entire record, including my observation of the de-
meanor of witnesses, I make the following findings of fact and
conclusions of law.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a mechanical contractor in the construc-
tion industry, operating a facility in Fort Wayne, Indiana. In
conducting its business operations in the last 12 months, the
Respondent purchased and received, at its Fort Wayne facility,
goods valued in excess of $50,000 directly from points outside
the State of Indiana. Accordingly, and at all material times, I
find that the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and is subject to the Board’s jurisdiction, as the Re-
spondent admits in its answer to the complaint. The Respond-
ent also admits, and I find, that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent provides mechanical, electrical, plumbing,
fire protection, and engineering and design services. It is
owned by a larger company called EMCOR. William Meyer is
a senior vice president and Gary Perkey is the vice president of
the mechanical division.
In December 2012, the Respondent created a new insulation
division within mechanical to perform the insulation of pipe,
ductwork, heating, and cooling. The Respondent hired Dean
Sheedy as a project manager for that division. Included in
Sheedy’s job duties is the responsibility for hiring mechanical
insulators to perform the insulation work. Since December
2012, the Respondent has employed between 7 and 10 mechan-
ical insulators. Although much of the Respondent’s overall
work force is unionized, the mechanical insulators are not rep-
resented by a union.
Sheedy and Ryan Wiersema knew one another long before
June 2014.1 Prior to 2008, Wiersema worked as a mechanical
insulator for several different employers. In 2007, Sheedy was
employed as a project manager and supervised Wiersema at
NEDRA Corporation, a contractor which also performed me-
chanical insulation work. The Union involved here represented
NEDRA’s mechanical insulators, including Wiersema. On
April 1, 2008, Wiersema resigned his NEDRA job and began
working as an organizer for the Union. However, Sheedy and
Wiersema remained in regular contact thereafter.

1 All dates hereinafter are in 2014, unless otherwise specified.
A. The Union’s Organizing Efforts at
Shambaugh Prior to 2014
The Union began its attempts to organize the Respondent’s
mechanical insulators in April 2013. At that time, Sheedy told
Wiersema he was having problems finding skilled manpower
for the insulation division and felt the problem could be ad-
dressed with a unionized work force.
In the summer of 2013, Dave Marvin, the then-business
manager of the Union, met with Meyer and Perkey to discuss a
collective-bargaining agreement for the insulators. Marvin
asked Meyer why all his employees were unionized except the
insulators and why Meyer would not sign the Union’s contract.
Meyer said he needed a labor package that would allow him to
compete with union and nonunion insulation companies.
Marvin raised the possibility of crew mixes, or changing the
percentage of lower-cost apprentices permissible on a job, as
well as of union subsidies for job bids. Meyer expressed his
concerns with unfunded pensions. He also told Marvin that he
wanted the Union to consider maintaining the employees on the
Respondent’s health and 401(k) plans.
On July 16, 2013, Wiersema sent an email to Meyer and
Perkey apologizing for Marvin’s behavior at the meeting and
his traditionalist approach to bargaining. (GC Exh. 2.) He also
expressed hope that the parties could find a way to mutually
benefit one another in the future. Wiersema sent the email in
response to hearing from Sheedy that the meeting had not gone
well and Marvin insisted that the Respondent accept the Un-
ion’s existing collective-bargaining agreement with other insu-
lation companies.
In September 2013, Meyer met with Wiersema and Tommy
Williams, a regional organizer for the Union. Meyer told them
the unionized insulator market in Fort Wayne appeared to be
dying and was not competitive in the “bid room.” He noted
that the unionized NEDRA Corporation was going out of busi-
ness. He stated that he did not think he could get his boss to
sign onto another collective-bargaining agreement.2 Williams
and Wiersema expressed a willingness to look at alternative
approaches in a contract, and left the meeting by saying they
would see what they could come up with.
On October 2, 2013, Wiersema again sent an email to Meyer
thanking him for meeting and saying he looked forward to a
future meeting where the Union could propose an agreement.
(R. Exh. 2.) However, the parties never met again and the Un-
ion never offered a contract proposal.
On December 14, 2013, Wiersema succeeded Marvin as the
Union’s business manager.
Wiersema’s Discussions with Sheedy About Employment
with the Respondent
At some point late in 2013, Wiersema and Sheedy met at a
restaurant. Wiersema vented concerning his job with the Union
and the two discussed the possibility of Wiersema pursuing
jobs with the Respondent. Sheedy told him that, if he saw
something come up, he would let Wiersema know.

2 Wiersema testified that Meyer made this statement in the meeting.
(Tr. 177.) Although Meyer testified at the hearing about the meeting,
he did not deny making the statement. (Tr. 270–274.) Thus,
Wiersema’s testimony as to this statement is uncontroverted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
On February 18, Sheedy called Wiersema and told him that
EMCOR, the Respondent’s owner, had just posted an opening
for a project manager in one of their divisions. He asked
whether Wiersema would be interested in the job and offered to
provide Wiersema with additional information if he was inter-
ested. When Wiersema said he would take a look at it, Sheedy
described the job duties of the position, as well as the minimum
experience and skills EMCOR was looking for.3 (GC Exhs. 14
and 15.)
Later that same day, Sheedy and Wiersema exchanged text
messages. Wiersema asked Sheedy to email him the job post-
ing. Sheedy eventually advised Wiersema that he pulled the
job up and it was an internal posting. He added that he “will
inquire about it tho.” (GC Exh. 6.)
The Union’s Bannering of the Respondent Beginning
in March 2014
About 2 weeks later on March 3, the Union began a banner-
ing campaign against the Respondent. At different points be-
tween March 3 and the first or second week of July, the Union
bannered at locations that included the Respondent’s fabrica-
tion shop and its headquarters, both in Fort Wayne. The Un-
ion’s banner stated “Notice to the public: Shambaugh & Son
does not employ members of or have a contract with Local 41.”
During the first couple of weeks of bannering, Wiersema par-
ticipated from 6 a.m. to 4 p.m. with a “Local 41” hat on.
Thereafter, he participated on and off for a few weeks.
At the hearing, Sheedy admitted that he knew Wiersema was
part of the Union’s bannering at the Respondent’s headquarters,
which took place from June until the beginning of July. (Tr.
46–48, 102–103.) Meyer also admitted to being generally
aware of the Union’s bannering in the spring of 2014. (Tr.
274–275.) In addition, Wiersema observed Meyer driving
through nearly every day while Wiersema was bannering at the
Respondent’s headquarters. Wiersema also saw Meyer and
Perkey driving by on multiple occasions while he was banner-
ing at the Respondent’s fabrication shop. During this same
timeframe, Wiersema spoke to certain of the Respondent’s
insulators about organizing and sought authorization card sig-
natures. Meyer admitted to knowing this, although he could
not recall when he became aware. (Tr. 279.)
Sheedy never again communicated with Wiersema after their
February 18 text messages and the beginning of the Union’s
bannering on March 3.
A. Wiersema’s June 9 Application for Employment with
Tradesmen International
From December 2012 until June, Sheedy did not utilize any
formal procedure to hire mechanical insulators and did not
accept job applications from interested individuals. Rather,
Sheedy told current insulators that he had openings and relied
on them to advise people they knew through word-of-mouth.
Sheedy would hire people where they had prior insulation expe-
rience and were friends of a current employee.

3 Wiersema recorded this phone conversation and the recording and
transcript of the conversation were entered into evidence at the hearing.
The reference to “audio played” in the transcript was the audio record-
ing of this conversation. (Tr. 46.)
The Respondent altered that approach in June, when it en-
tered into a contract with Tradesmen International, a temporary
employment agency, to obtain mechanical insulators for its
projects. Sheedy remained the individual responsible for de-
termining who would be hired. The only criteria he gave
Tradesmen for job applicants was that they needed at least
some experience with insulating, without mandating a specific
number of years. Sheedy was seeking to hire 3 to 4 mechanical
insulators at that time.
On June 9, Wiersema searched the Tradesmen website and
found a job posting for a mechanical insulator apprentice in
Fort Wayne. The posting did not indicate that the job would be
with Shambaugh. He filled out an application online, listing
“Local 41” as his current employer since January 2002 and
Marvin as his supervisor. (R. Exh. 3.) He also indicated he had
12 years of experience as an insulation installer. Wiersema
listed his position with the Union as “mechanical insulator” and
his job duties as installing insulation materials for HVAC sys-
tems, chilled water, domestic piping, duct, etc. He also stated
his reason for leaving his last job was the lack of work in the
Fort Wayne area.
On June 13, Wiersema interviewed with a Tradesmen repre-
sentative. He ultimately was advised he was hired and would
start work in 1 to 2 weeks. He was not told which employer he
would be working with. On June 16, Wiersema emailed multi-
ple forms of identification to Tradesmen that had been request-
ed during his interview.4 (GC Exh. 11.)
After Wiersema submitted his application, Joey Tippman, a
representative at Tradesmen, called Sheedy on a date in June
not specified in the record. Tippman advised Sheedy that one
person had put in an application for work, he was unemployed,
and he had previous experience in insulating. Tippman told
Sheedy that the applicant was Wiersema. Sheedy advised
Tippman he did not want to hire Wiersema.5
Tradesmen did not end up hiring Wiersema. Instead, on
June 24, Tradesmen reposted the mechanical insulator job
opening online. (GC Exh. 12.) On June 29, Tradesmen hired
Michael Burdette as a temporary employee and Burdette went
to work for the Respondent. (GC Exh. 4.) Burdette had prior

4 At the hearing, Counsel for the General Counsel properly identi-
fied GC Exhibits 11 and 12 on the record, but did not offer the exhibits
into evidence, apparently through inadvertence. Neither party ad-
dressed this in their post hearing briefs. As no grounds exist for ex-
cluding the exhibits, I hereby receive them into evidence.
5 Sheedy testified specifically that he told Tippman that Wiersema
was employed by the Union, but he was not interested in Wiersema
“for other reasons.” (Tr. 39.) It is understandable that Sheedy would
say Wiersema was employed by the Union, after Tippman stated
Wiersema was unemployed. However, I find Sheedy’s testimony
thereafter contrived and unconvincing. It is implausible that Sheedy
would say he was not hiring Wiersema “for other reasons,” without
then specifying to Tippman what those reasons were. This is especially
so if, as claimed, the justification for his refusal to hire Wiersema was
that Wiersema previously had threatened another employee. I further
note that neither Tippman nor any other Tradesmen representative
testified at the hearing, a curious absence. Thus, Sheedy’s testimony is
uncorroborated. Accordingly, I do not credit Sheedy’s testimony that
he told Tippman nothing more than he was not hiring Wiersema “for
other reasons.”
SHAMBAUGH AND SON, L.P. 5
experience working as a mechanical insulator, but the record
evidence does not establish the number of years of experience
he had. Burdette was the only employee Tradesmen hired for
the Respondent in June.
Tradesmen hired 5 additional temporary employees that were
assigned to the Respondent from August 3 to September 7.
(GC Exhs. 4 and 13.) They included Brian Carmichael and
Kevin Vancamp on August 3; Keith Malott on August 24; Ste-
ven Roebuck on August 31; and Tyler Thacker on September 7.
When Sheedy approved these individuals for hire, he was
aware that they had at least some experience as mechanical
insulators, but not the specific years of experience possessed by
Carmichael, Vancamp, Roebuck, or Thacker. He knew that
Malott had less than 5 years of experience.
In addition to Michael Burdette, the Respondent directly
hired 4 permanent employees from September 2 to October 27.
(GC Exh. 5.) They included Jared Hill on September 15;
Mitchell Burdette on September 25; Andrew Krieg on October
27; and Jonathon Krieg on October 30. Sheedy knew that Jona-
thon Krieg had some level of prior experience, but Mitchell
Burdette had none. He also was aware that Hill and Andrew
Krieg had no experience, but an existing employee vouched for
those two individuals. On September 26, the Respondent also
converted Michael Burdette from a temporary to a permanent
employee.
At the hearing, Wiersema testified that, had he been hired, he
intended to work for Tradesmen and Shambaugh for as long as
he possibly could. (Tr. 124–125.)
B. Sheedy’s September Text Messages to Joe Koontz
On September 18, when Sheedy was in the midst of hiring
additional mechanical insulators, Wiersema was having lunch
with Joe Koontz, a member of the Union who is employed as
an apprentice insulator for a different contractor. Koontz pre-
viously worked on a few projects for the Respondent.
Wiersema asked Koontz if he would text Sheedy and ask if
Sheedy would hire Koontz. Koontz agreed and the following
text message exchange occurred, with all of Koontz’s state-
ments provided to him by Wiersema:
Koontz: Hey do you have work
Sheedy :Lots. Who is this
Koontz: Little joe
Sheedy: I thought u were still in the union
Koontz: I wasn’t able to get back in
Sheedy: I thought u were back in the last time we
talked. I had also herd (sic) u were
Koontz: Did not work out. They said I had to (sic)
many points from before. Missed one day and got kicked
out. So you got anything for me
Sheedy: What does your dad think of it
Koontz: He don’t care he’s a road dog now
Sheedy: Let me talk with my boss .. I will get back
with u
Koontz: Thanks dean
Sheedy: No problem .. Do u have papers saying u
were expelled from the union ?
Koontz: I haven’t got it in the mail yet
(Jt. Exh. 1.) Thereafter on September 22, Sheedy texted
Koontz and told him he could put Koontz to work the next day.
C. The Incident Involving Wiersema at NEDRA in 2007
At the hearing, Sheedy testified that he did not hire
Wiersema through Tradesmen in June 2014, due to an incident
which occurred back in 2007 when both he and Wiersema were
working for NEDRA Corporation on a jobsite for Concordia
Seminary. (Tr. 39.) Sheedy alleged that Wiersema pulled a
knife on Shane Shepherd, a Shambaugh employee, and threat-
ened to gut him. Witness testimony starkly conflicted on
whether Wiersema actually did so, what happened in the after-
math of this incident, and when the incident occurred.
1. Wiersema’s statement to Shepherd
As to what happened on the Concordia Seminary jobsite,
Wiersema testified that he was working in a mechanical room
with NEDRA coworker Gary Stanton. (Tr. 132–137.) Also
present were Shambaugh employees Shepherd and Cody Love.
Without prompting and without knowing that Wiersema’s wife
was having health problems, Shepherd asked Wiersema “how’s
your wife and my kids?” and told Wiersema he would be over
later to have sex with her. Wiersema responded, “say another
word and I’m going to knock your teeth down your throat.”
(Tr. 135–136.)
Shepherd’s testimony differed regarding Wiersema’s actions
in response to Shepherd’s incendiary comment. (Tr. 294–298.)
Shepherd stated that he and Cody Love walked into the me-
chanical room as Wiersema was sharpening a work knife ap-
proximately 6 to 7 inches in length. Shepherd agreed that he
asked Wiersema how his wife and Shepherd’s kids were doing,
but testified that Wiersema responded by pointing the knife at
Shepherd and saying he should fucking gut him. Wiersema
denied doing so. (Tr. 136.)
Stanton corroborated Wiersema’s account that Shepherd
asked Wiersema if he knew who the father of his kids was and
Wiersema responded by saying he was going to punch Shep-
herd’s teeth down his throat. (Tr. 62.) He also denied that
Wiersema pulled out a knife and showed it to Shepherd and
denied that Wiersema told Shepherd he was going to gut him.
(Tr. 63, 66.) In contrast, Cody Love testified briefly and cor-
roborated Shepherd’s account in most respects, including that
Wiersema threatened to gut Shepherd. (Tr. 287–292.)
2. The aftermath of the Wiersema-Shepherd incident
Witness testimony also conflicted concerning whether
Sheedy permitted Wiersema to remain on the Concordia Semi-
nary project after the incident with Shepherd.
Wiersema testified he informed Sheedy of the incident later
that same day when Sheedy came out to the jobsite. (Tr. 160–
161.) Wiersema stated that Sheedy laughed it off and told
Wiersema either that he was surprised Wiersema did not hit
Shepherd or that Sheedy himself would have hit Shepherd if he
were Wiersema. Wiersema also testified that he remained on
the Concordia Seminary jobsite for months thereafter, until the
end of September. (Tr. 137–138.)
Sheedy testified that Ed Love, Shambaugh’s general foreman
on the jobsite and Cody Love’s father, told him that Cody Love
reported Wiersema had pulled a knife on Shepherd and threat-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ened to gut him. Ed Love told Sheedy that either Wiersema
had to be removed from the project or NEDRA would be re-
moved from the project. (Tr. 39–40.) Sheedy stated that he
then informed Wiersema that he was being removed from the
Concordia Seminary project and removed him the same day.
(Tr. 41–42, 238–239, 241.)
Stanton corroborated Wiersema’s testimony that Sheedy did
not remove him from the Concordia Seminary jobsite following
this incident. (Tr. 63–64.) In contrast, Ed Love testified that,
after learning of Wiersema’s threat, Ed Love talked to Sheedy
the same day and told him he wanted Wiersema off the project.
He also stated that Sheedy removed Wiersema the same day.
(Tr. 301–302.) Cody Love stated that Wiersema was removed
from the project, either the same day or the next day. (Tr. 288–
289, 291–292.)
The one fact the parties do not dispute about the aftermath of
the incident is that Sheedy did not discharge Wiersema for the
alleged threat. Wiersema continued to work for NEDRA from
months until April 1, 2008.
3. The timing of the Wiersema-Shepherd incident
The question of when the confrontation between Wiersema
and Shepherd occurred is critical to determining whether
Wiersema remained on the Concordia Seminary project after
the incident, because Wiersema’s timekeeping records from
NEDRA establish definitively that he worked on that project
until September 21, 2007. (R. Exh. 5.) However, the record
does not contain any documentary evidence setting forth the
date of the incident.
In addition, and as would be expected for an event which oc-
curred some 7 years ago, witnesses at the hearing struggled to
pinpoint the exact timing of the confrontation. Wiersema stated
it occurred in the late spring or early summer of 2007. (Tr.
133, 138.) Stanton testified it likely occurred in the spring or
summer of 2007, indicating that it was getting warm out or
close to it. (Tr. 61.) Shepherd put the timing of this incident as
late July or early August. (Tr. 298.)
Sheedy also initially testified that the incident occurred in the
spring or summer of 2007. (Tr. 40.) He previously testified
under oath in a different legal proceeding that the incident oc-
curred in the summer of 2007. (Tr. 244–246.) However, on the
second day of the hearing in this case when he was recalled,
Sheedy changed his testimony and stated the incident occurred
on September 21, 2007. (Tr. 236-238.)
NEDRA’s invoices to the Respondent for the Concordia
Seminary project establish that NEDRA worked on the project
through December 2007 and again in March 2008 before
Wiersema’s resignation. (R. Exh. 10.) However, that does not
necessarily mean Wiersema was pulled off the project early,
because the insulators finished their part of the job before the
end of NEDRA’s work. (Tr. 291–292.) In addition, a work
order amongst the NEDRA invoices indicates that Wiersema
returned to the project and worked for 8 hours on March 5,
2008. (R. Exh. 10, p. 23.)
4. Credibility resolution
As the above description makes clear, the credibility resolu-
tion regarding what Wiersema said to Shepherd at Concordia
Seminary and whether Wiersema remained on the job thereafter
is a difficult one, with multiple witnesses on both sides and
inconclusive documentary evidence. Moreover, none of the
witnesses displayed telltale signs in their demeanors that would
call into question the believability of their testimony in this
regard.
Ultimately, I conclude that the exact statement Wiersema
made is irrelevant to the outcome of this case. However, in the
event a credibility determination was required, I find that
Wiersema did not threaten to gut Shepherd while holding a
knife and remained working on the Concordia Seminary jobsite
after the incident.
What is most apparent from the witness testimony is that
Wiersema had the most vivid, detailed recall of what occurred,
including everything he and Shepherd said to one another and
other specifics concerning where Wiersema was and what he
was working on at the time. I find the specificity Wiersema
provided indicative of reliable, credible testimony.
In contrast, the testimony of Shepherd and Cody Love was
sparse and consisted of nothing more than the alleged threat by
Wiersema to gut Shepherd, absent any further details. Shep-
herd also used qualifiers such as “basically,” “that’s about the
gist of it,” and “I’m pretty sure.” (Tr. 295–296.) Cody Love
peppered his testimony with generalities such as “they were
going back and forth,” then they “were having words,” and
finally that Shepherd “said something to him.” (Tr. 288.) The-
se factors detract from the believability of their testimony.
As to the timing of this incident, witness testimony was con-
sistent that the incident occurred in either the spring or summer
of 2007. That means Wiersema remained on the job after the
incident, because he did not leave until September 21, 2007.
The only witness who stated that the incident occurred on that
date was Sheedy. His claim conflicted with what he stated on
the first day of the hearing, as well as what he previously stated
under oath in a different proceeding. His contention that the
incident occurred on September 21 came only following his
review of Wiersema’s timekeeping records from NEDRA,
which the Respondent had subpoenaed. (Tr. 238.) According-
ly, I do not credit Sheedy’s testimony.
While the Respondent makes much of the fact that Septem-
ber 21 fell into the technical definition of summer in 2007, I
conclude it is doubtful, as a matter of logic, that Sheedy, or any
other witness, would recall and testify that the incident oc-
curred in the summer, much less the early spring, had it hap-
pened on September 21.6 I also note that the Respondent’s
counsel, on direct examination of Shepherd, Ed Love, and Co-
dy Love, did not ask any of the three witnesses an open ended
question concerning the timing of the incident, instead directing
them to 2007 or the summer of 2007. (Tr. 288, 295, 300.)
Finally, Wiersema’s return to the project in March 2008 is
inconsistent with the claim that he was permanently removed
on September 21, 2007.

6 I take judicial notice of the fact that the autumnal equinox, or first
day of fall, in 2007 occurred on September 23. Earth’s Seasons, U.S.
NAVAL OBSERVATORY, NAVAL OCEANOGRAPHY PORTAL,
http://www.usno.navy.mil/USNO/astronomical-applications/data-
services/earth-seasons/?searchterm=solstices (last visited Aug. 25,
2015).
SHAMBAUGH AND SON, L.P. 7
For all these reasons, I credit Wiersema’s testimony regard-
ing what he said to Shepherd, as well as that he remained work-
ing on the Concordia Seminary job thereafter.7
Analysis
III. THE 8(A)(3) SALTING ALLEGATIONS
In FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir.
2002), the Board set forth its framework for analyzing refusal
to hire allegations. Pursuant to that framework, the General
Counsel must, under the allocation of burdens set forth in
Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), first show that: (1) the
Respondent was hiring or had concrete plans to hire; (2) appli-
cants had the experience or training relevant to the announced
or generally known requirements of the positions for hire; and
(3) antiunion animus contributed to the decision not to hire the
applicants. If the General Counsel makes this initial showing,
the burden shifts to the Respondent to demonstrate that it would
not have hired the applicants even in the absence of their union
activity.
Subsequently, in Toering Elec. Co., 351 NLRB 225 (2007),
the Board held that, before an employer’s motivation for a re-
fusal to hire can be considered, the General Counsel must es-
tablish that the job applicant was “genuinely interested in seek-
ing to establish an employment relationship” in order to be
considered a Section 2(3) employee entitled to the Act’s protec-
tions. As yet, the Board has not made explicitly clear what the
General Counsel must show to satisfy this burden.
With respect to a refusal to consider for hire allegation, the
General Counsel bears the burden of showing that: (1) the
Respondent excluded applicants from the hiring process, and
(2) antiunion animus contributed to the decision not to consider
the applicants for employment. Where this showing is made,
the burden shifts to the Respondent to establish that it would
not have considered the applicants even in the absence of their
union activity or affiliation.
As a preliminary matter, the Respondent does not contest,
and the record evidence supports, that Wiersema is a Section
2(3) employee entitled to the Act’s protections. Wiersema
testified without contradiction that he intended to work for
Tradesmen/Shambaugh as long as possible, and his job applica-
tion to Tradesmen was entered into evidence at the hearing.
(Tr. 124–125; R. Exh. 3.) The Respondent presented no evi-
dence calling into doubt that Wiersema’s interest in going to
work for Tradesmen/Shambaugh was genuine.
In its answer to the complaint, the Respondent also admits
that, at certain times since June 2014, it had been hiring or had
plans to hire, as well as that it refused to consider for hire or to
hire Wiersema. The record evidence confirms this as well. The
Respondent hired 10 mechanical insulators, either directly or
through Tradesmen, from June 29 to October 27. Sheedy re-

7 In making this determination, I do not rely on the testimony of
NEDRA owner Michael Cox. (Tr. 141-157.) Although Cox stated he
was unaware of Wiersema being removed from the Concordia Semi-
nary jobsite and should have been told if this happened, he also testified
that he spent 60 to 70 percent of his work time at a different, concurrent
project in Lima, Ohio, and was not always brought up to date on the
day-to-day operations at Concordia Seminary. (Tr. 141, 145–146.)
fused to hire Wiersema in June prior to hiring Burdette and
thereafter refused to consider him when hiring 9 additional
mechanical insulators.
Thus, the only issue in dispute in this case is whether the Re-
spondent’s adverse actions were motivated by antiunion ani-
mus. The Respondent asserts that it did not consider or hire
Wiersema because of the threat he made to Shepherd in the
summer of 2007. The General Counsel argues that Wiersema
did not engage in that conduct and thus the Respondent’s as-
serted reason for refusing to hire Wiersema is pretextual. If the
Respondent’s reason is pretextual, the General Counsel has
satisfied his FES/Wright Line burden and the Respondent fails
by definition to show that it would have taken the same action
for that reason, absent the protected conduct. Golden State
Foods Corp., 340 NLRB 382, 385 (2003), citing to Limestone
Apparel Corp., 255 NLRB 722 (1981).
Both parties frame this case as being decided by my credibil-
ity determination concerning the NEDRA incident in the sum-
mer of 2007. I agree that credibility controls here, but not con-
cerning that incident. Even assuming for the sake of argument
that Wiersema did, in fact, pull a knife and threaten to gut
Shepherd, I conclude that the Respondent did not rely on this
reason when refusing to hire Wiersema in June 2014.
I base this conclusion, in part, on the lack of credibility that
Sheedy displayed when testifying about the events in late 2013
and 2014. In my view, the most important piece of testimony
Sheedy provided came early on the first day of the hearing.
Counsel for the General Counsel asked Sheedy whether he told
Wiersema about the project manager job posting at EMCOR in
February 2014, a critical component to the General Counsel’s
case. Sheedy emphatically denied that he did so in three, suc-
cessive questions. (Tr. 43–44.) However, unbeknownst to
Sheedy, Wiersema had recorded the phone conversation he had
with Sheedy, where Sheedy had done exactly that. Once coun-
sel noted on the record that he intended to impeach Sheedy’s
denial with the recording, Sheedy interrupted that discussion,
without any question posed, and erroneously claimed he had
just said “I don’t recall.” (Tr. 44.)
Thereafter, I observed a significant shift in Sheedy’s testi-
mony. Whereas previously he had been forthright and direct in
responding to questions, Sheedy subsequently retreated and
instead equivocated in his testimony following this exchange.
He repeatedly answered questions by stating he did not recall or
by qualifying his responses with phrases such as “I may have,”
“I believe,” “possibly,” and “something to the effect of.” This
included when he refused to confirm that he also had sent text
messages to Wiersema concerning the EMCOR job posting.
(Tr. 50.) It also included his response concerning whether he
had told Wiersema, at a restaurant prior to the recorded phone
conversation, that he would let Wiersema know if the Respond-
ent had any job openings. (Tr. 239–240.)
The obvious dishonesty in Sheedy’s initial denial to a key
question—whether he had advised Wiersema of a job opening
with the Respondent’s parent company, despite claiming that
Wiersema was violent and unfit for employment—coupled with
his hedging of responses thereafter, calls into question the cred-
ibility of his entire testimony.
The conclusion that Sheedy did not rely on the Concordia
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Seminary incident when refusing to hire Wiersema is further
supported by established and admitted facts, reasonable infer-
ences from the record as a whole, and the inherent probability
of Sheedy’s claim. Daikichi Sushi, 335 NLRB 622, 623
(2001). The Respondent forcefully argues that Wiersema’s act
of violence in the workplace at NEDRA precluded him from
employment. Yet, the parties do not dispute that Sheedy did
not discharge Wiersema after the alleged incident occurred.
Irrespective of whether or not he was moved to another jobsite,
Wiersema continued to work for NEDRA for at least another 6
months. An incident which did not warrant Wiersema’s termi-
nation when it occurred cannot be a credible ban to his hiring
some 7 years later.
Furthermore, had Wiersema’s prior conduct excluded him
from employment with the Respondent, I find it improbable
that Sheedy would repeatedly express his willingness to help
Wiersema get a job there. In late 2013, Sheedy told Wiersema
he would let him know if Shambaugh had any job openings.
Then shortly thereafter in February 2014, Sheedy called
Wiersema to let him know of a specific job opening at
EMCOR. This conduct cannot be reconciled with Sheedy’s
claim that he could not employ Wiersema due to his prior
threat.
The Respondent attempts to justify Sheedy’s inconsistent
conduct by arguing that Wiersema’s potential employment with
EMCOR differs from his potential employment with
Shambaugh, because Ed and Cody Love (but not Shepherd)
still worked in the Respondent’s insulation division at the time
and the Respondent maintains an antiviolence policy. (R. Exh.
8.) I do not agree. If Sheedy truly were concerned that
Wiersema would become violent on the job again, that concern
is not alleviated in the slightest by the fact that his potential
coworkers at EMCOR would be unaware he previously pulled a
knife on Shepherd or that EMCOR may not have a formal an-
tiviolence policy.
The Respondent also suggests that Wiersema, then unsatis-
fied with his employment at the Union, was hounding Sheedy
about job openings. If this was the case, Sheedy simply could
have played along, then not advised Wiersema of any openings
as they became available. Instead, Sheedy picked up the phone
and let Wiersema know of the EMCOR opening the same day it
was posted.
Finally, the sequence of events between when Sheedy in-
formed Wiersema of the EMCOR job opening in February
2014 and Sheedy’s refusal to hire Wiersema in June 2014 is eye
opening. The only intervening events during this time period
were Wiersema’s participation in bannering from March to July
2014 at the Respondent’s fabrication shop and headquarters, as
well as his solicitation of signatures from the Respondent’s
insulators on authorization cards. The Respondent was aware
of these activities. Prior to the start of the bannering, Sheedy
and Wiersema had remained in regular contact and, just a cou-
ple of weeks earlier, Sheedy had advised Wiersema of the
EMCOR job opening. However, Sheedy ceased communi-
cating with Wiersema after the bannering began. Only 4
months after suggesting he try to go to work for EMCOR,
Sheedy then refused to hire Wiersema in June 2014 while ban-
nering continued.
For all these reasons, I do not credit Sheedy’s testimony that
he refused to hire Wiersema because of the 2007 incident at
NEDRA. I find the Respondent’s asserted reason for not con-
sidering Wiersema for hire and not hiring Wiersema to be
pretextual and thus sufficient to demonstrate the Respondent’s
antiunion animus. Accordingly, the General Counsel has satis-
fied his FES/Wright Line burden and the Respondent cannot
meet its shifting burden. The Respondent’s refusal to hire
Wiersema and refusal to consider Wiersema for hire violate
Section 8(a)(3).8
IV. THE 8(A)(1) INTERROGATION ALLEGATIONS
An unlawful interrogation is one which reasonably tends to
restrain, coerce, or interfere with rights guaranteed by the Act,
under the totality of the circumstances. Rossmore House, 269
NLRB 1176, 1178 fn. 20 (1984), affd. sub nom Hotel & Res-
taurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). The test is an objective one that does not rely on the
subjective aspect of whether the employee was, in fact, intimi-
dated. Multi-Ad Services, 331 NLRB 1226, 1227–1228 (2000),
enfd. 255 F.3d 363 (7th Cir. 2001). The questioning of job
applicants concerning their union membership or sympathies
long has constituted an unlawful interrogation. See, e.g.,
Facchina Construction Co., Inc., 343 NLRB 886, 886 (2004);
Zarcon, Inc., 340 NLRB 1222, 1222 (2003). The Board recog-
nizes that, under the totality of the circumstances test, an appli-
cant may understandably fear that any answer he might give to
questions about union sentiments posed in a job interview may
well affect job prospects. Active Transportation, 296 NLRB
431, 431 fn. 3 (1989).
In this case, the General Counsel’s complaint alleges two vi-
olations of Section 8(a)(1), premised on Sheedy’s text messages
to Koontz on September 18. During that exchange, Sheedy
twice asked Koontz if he was still in the Union, following
Koontz’s inquiry about working for the Respondent. After
Koontz repeatedly denied being in the Union, Sheedy then
asked Koontz for papers confirming he had been expelled from
the Union. His inquiries sought to confirm that Koontz was not
a member of the Union and had nothing to do with Koontz’s
ability, skill, productivity, and reliability as an employee.
Sheedy was the Respondent’s supervisor in charge of hiring
insulators and his conduct was not isolated, as it came in close

8 I likewise reject the Respondent’s argument that its history of be-
ing a pro-union employer prevents a finding of animus. This argument
is premised, in part, on the Respondent having several collective bar-
gaining agreements with other unions. (Tr. 253–255.) However, the
fact that an employer has some union employees does not prevent it
from possessing animus against the possibility of having more union-
ized employees. E & L Transport Co., 315 NLRB 303, 308 (1994).
The argument also is based on what Meyer described as his pro-union
activities, including his support of common (or prevailing) wage set-
tings in Indiana, his opposition to the Indiana right-to-work law, and his
membership in a building trades and union cooperative designed to
develop relationships between contractors and unions. (Tr. 255–263.)
This history does not foreclose a finding of animus as to the narrowly
tailored question of the Respondent’s hiring practices when it was
directly faced with Union bannering and the beginnings of an active
organizing campaign. J.E. Merit Constructors, 302 NLRB 301, 304
(1991).
SHAMBAUGH AND SON, L.P. 9
proximity to his unlawful refusal to hire Wiersema. Thus, the
questions constitute an unlawful interrogation.
The Respondent argues that Sheedy’s statements did not vio-
late the Act, because Sheedy ultimately offered Koontz a job 4
days later. However, questioning a job applicant about his
union membership is inherently coercive and unlawful, even
when the applicant is hired. M.J. Mechanical Services, Inc.,
324 NLRB 812, 812–813 (1997).
The Respondent also suggested at the hearing that Sheedy
was motivated to ask Koontz these questions, because the Un-
ion previously had sued two members who went to work for a
nonunion contractor. (Tr. 242–244; R. Exhs. 6 and 7.) Of
course, Sheedy made no mention of this motivation in his texts
with Koontz. In any event, the Board specifically rejected this
defense in M.J. Mechanical, supra. Such questions, standing
alone, do not serve as a reminder that the applicant could be
fined or disciplined because he was employed by a nonunion
employer. Moreover, facing union discipline is the applicant’s,
not the prospective employer’s, concern.
I likewise find no merit to the Respondent’s contention that
Sheedy’s questioning was lawful, because Koontz did not write
his texts and had no intention of going to work for the Re-
spondent. Certainly Koontz could not have felt threatened
about his job prospects, since he did not intend to go to work
for the Respondent. Nonetheless, Sheedy’s statements must be
evaluated objectively to determine if they reasonably tend to
coerce a job applicant, not subjectively based upon Koontz’s
reaction. No question exists that Sheedy’s questions are objec-
tively coercive.
Under the totality of the circumstances, Sheedy’s text mes-
sages to Koontz constituted unlawful interrogations and violat-
ed Section 8(a)(1) as alleged in the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The International Association of Heat and Frost Insulators
and Allied Workers, Local 41, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) by the fol-
lowing conduct:
(a) On September 18, 2014, interrogating applicants for em-
ployment about their union membership, activities, and sympa-
thies; and
(b) On September 18, 2014, requiring applicants for em-
ployment to provide written evidence of their withdrawal from
the Union in order to receive consideration for employment.
4. The Respondent has violated Section 8(a)(3) and (1) of the
Act by refusing to hire Wiersema on about June 24, 2014, and
thereafter refusing to consider Wiersema for hire.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. In particular, I shall order the Respondent
to offer Ryan Wiersema instatement to the position for which
he applied or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges he would have enjoyed absent the
discrimination against him. Further, I shall order the Respond-
ent to make Wiersema whole for any loss of earnings and other
benefits suffered for the period Wiersema would have worked
but for the unlawful discrimination against him. I also shall
order the Respondent to remove from its files any references to
the unlawful refusal to hire Wiersema or consider him for hire
and, within 3 days thereafter, notify him in writing that this has
been done and that this unlawful conduct will not be used
against him in any way.
The duration of the backpay period shall be determined in
accordance with Oil Capitol Sheet Metal, Inc., 349 NLRB 1348
(2007), pet. for review dismissed 561 F.3d 497 (D.C. Cir.
2009). Backpay shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010). In addition, the Respondent must com-
pensate Wiersema for the adverse tax consequences, if any, of
receiving a lump-sum backpay award and file a report with the
Social Security Administration allocating the backpay award to
appropriate calendar quarters. Don Chavas, LLC d/b/a Tortil-
las Don Chavas, 361 NLRB No. 10 (2014). Although this
order provides for instatement, the instatement award is subject
to defeasance if, at the compliance stage, the General Counsel
fails to carry his burden of establishing that the discriminatee
would still be employed if he had not been a victim of discrim-
ination. Oil Capitol Sheet Metal, 349 NLRB at 1354.9
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, Shambaugh and Son, L.P., Fort Wayne, In-
diana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating applicants for employment
about their union membership, activities, and sympathies.
(b) Requiring applicants for employment to provide written
evidence of their withdrawal from the Union in order to receive
consideration for employment.
(c) Refusing to hire, or to consider for hire, applicants for

9 The General Counsel’s complaint sought a requirement, as part of
the remedy, that Wiersema be reimbursed for search for work and
work-related expenses, without regard to whether interim earnings are
in excess of these expenses. Under extant Board law, those expenses
are considered an offset to interim earnings. In this case and others, the
General Counsel is seeking a change in Board law. Such a change must
come from the Board, not an administrative law judge. The Board has
yet to resolve this issue. See Katch Kan USA, LLC, 362 NLRB No.
162, slip op. at 1 fn. 2 (2015). Accordingly, I decline to include the
requested remedy in my recommended order.
10 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 adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
employment because of their union or other protected, concert-
ed activities.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Ryan
Wiersema employment in the position in which he would have
been hired in the absence of the discrimination against him or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges he would have enjoyed.
(b)Make Wiersema whole for any loss of earnings and other
benefits suffered for the period where Wiersema would have
worked but for the unlawful discrimination against him, in the
manner set forth in the remedy section of this decision.
(c) Compensate Wiersema for the adverse tax consequences,
if any, of receiving a lump sum backpay award, and file a re-
port with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters.
(d)Within 14 days from the date of this Order, remove from
its files any references to the unlawful refusal to hire Wiersema
or consider him for hire and, within 3 days thereafter, notify
him in writing that this had been done and that this unlawful
conduct will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Fort Wayne, Indiana, copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent and maintained for 60 days in conspicuous
places including all places were notices to employees are cus-
tomarily posted. In addition to physical posting of paper notic-
es, notices shall be distributed electronically, such as by email,
posting on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facilities involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
former employees employed by the Respondent at any time
since June 24, 2014.
(g) 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 Regional Director attesting to the
steps the Respondent has taken to comply.
Dated, Washington, D.C., September 17, 2015.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT ask job applicants about their union member-
ship, activities, or sympathies.
WE WILL NOT require job applicants to provide written evi-
dence of their withdrawal from the International Association of
Heat and Frost Insulators and Allied Workers, Local 41 (the
Union), or any other union, in order to receive consideration for
employment.
WE WILL NOT refuse to hire, or to consider for hire, job appli-
cants, because of their union or other protected, concerted ac-
tivities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Ryan Wiersema the job he applied for in June 2014, or a sub-
stantially equivalent position if that job no longer exists, with-
out prejudice to his seniority or any other rights or privileges he
would have enjoyed from the date of his hire.
WE WILL make Ryan Wiersema whole for any loss of earn-
ings and other benefits suffered as a result of our unlawful re-
fusal to hire him.
WE WILL compensate Ryan Wiersema for the adverse tax
consequences, if any, of receiving a lump-sum backpay award
and file a report with the Social Security Administration allo-
cating the backpay award to the appropriate calendar quarters.
WE WILL, within 14 days from the date of this Order, remove
from our files all references to our unlawful refusal to hire
Ryan Wiersema, or consider him for hire, and, within 3 days
thereafter, WE WILL notify him in writing that this has been
done and that our unlawful conduct will not be used against
him in any way.
SHAMBAUGH AND SON, L.P.
SHAMBAUGH AND SON, L.P. 11
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/25–CA–141001 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.