T. Steele Construction, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 2006

348 N.L.R.B. 1173 (N.L.R.B. 2006)

T. STEELE CONSTRUCTION, INC.
348 NLRB No. 79
1173
T. Steele Construction, Inc. and International Union
of Operating Engineers, Local 150, AFL–CIO.
Case 33–CA–14914
November 30, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On June 5, 2006, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
filed an answering brief and a brief in support of the
judge’s decision, the Union filed a memorandum in re-
sponse to the Respondent’s exceptions, and the Respon-
dent filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, T. Steele Construction, Inc.,
Rock Island, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

1 The Union filed a motion to strike the Respondent’s exceptions and
the Respondent filed an opposition. We deny the motion as without
merit.
The Respondent filed a motion for leave to amend its answer to the
complaint to deny allegations, previously admitted, that Foreman Brian
Brink was a supervisor within the meaning of Sec. 2(11) of the Act and
an agent within the meaning of Sec. 2(13) of the Act. The Respondent
contends that its motion should be granted in light of the Supreme
Court’s decision in NLRB v. Kentucky River Community Care, 532 U.S.
706 (2001), and the Board’s decision in Oakwood Healthcare, Inc., 348
NLRB No. 37 (2006). The General Counsel and the Union filed opposi-
tions to the motion, and the Respondent filed a reply. We deny the
motion as untimely. See Yesterday’s Children, Inc., 321 NLRB 766 fn.
1 (1996) (denying employer’s motion to amend answer to deny that
charge nurse Smith was an employee in light of Supreme Court’s deci-
sion in NLRB v. Health Care & Retirement Corp. of America, 511 U.S.
571 (1994)).
2 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.
3 Because we adopt the judge’s finding that the Respondent’s dis-
charge of employee Joe Farrell for engaging in union activity violated
Sec. 8(a)(3) of the Act, we find it unnecessary to pass on the issue of
whether Farrell’s discharge also independently violated Sec. 8(a)(1) of
the Act.
Deborah Fisher, Esq. and Melissa Tomaska, Esq., for the Gen-
eral Counsel.
John F. Doak, Esq. (Katz, Huntoon & Fieweger, P.C.), of
Moline, Illinois, for the Respondent.
Robert E. Entin, Esq., of Countryside, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was
tried in Peoria, Illinois, on December 20 and 21, 2005. The
International Union of Operating Engineers, Local 150, AFL–
CIO (the Union), filed the original charge on June 10, 2005,
and amended charges on July 14 and August 30, 2005. The
Regional Director for Subregion 33 of the National Labor Rela-
tions Board issued the complaint on August 31, 2005. The
complaint alleges that T. Steele Construction, Inc. (the Respon-
dent) violated Section 8(a)(1) of the National Labor Relations
Act (the Act) during an organizing effort when it: threatened to
retaliate against employees for union or other protected activi-
ties; stated that it would refuse to hire an individual because he
or she was a member of a union; interrogated an employee
about union activities; and created the impression of surveil-
lance of union activities. The complaint further alleges that the
Respondent violated Section 8(a)(3) and (1) when it transferred
and then discharged Joe Farrell, an employee who was working
as an organizer for the Union.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Rock Island, Illinois, has been engaged in the busi-
ness of constructing cellular phone tower foundations and
houses. In conducting these business operations, it annually
performs services valued in excess of $50,000 in States other
than the State of Illinois, and purchases and receives at its Rock
Island facility, goods valued in excess of $50,000 directly from
points outside the State of Illinois. I find that the Respondent is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent is a construction company that performs
two basic types of work. One is building the sites and founda-
tions for cellular phone towers and the other is building houses.
During the relevant time period the Respondent had approxi-
mately 33 employees. Most of the workers were distributed
among five or six phone tower crews, and one- or two-house
building crews. The drill crews that performed tower work and
the crews that built houses each generally had three or four
members, including a foreman. The Respondent’s president and
owner is Thomas “Tom” Steele (T. Steele). T. Steele’s brother-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1174
in-law, John Oliver (Oliver), is the Respondent’s vice president.
The Respondent’s phone tower work consists of digging or
drilling the tower foundation, constructing the building founda-
tion with underground lighting and conduits for utilities, install-
ing electrical wires and meters for the structure, and building
roads to sites that do not have adequate access. The phone
tower work is generally performed out-of-state, and employees
on the Respondent’s tower crews are away from home over-
night for a portion of most weeks. The heavy equipment used to
complete the work includes caisson drills, excavators, skid steer
loaders, bobcats, semi trucks, and crew trucks. The operation of
this equipment is generally considered “operator’s” work, and a
commercial driver’s license (CDL) is required to drive the semi
trucks and the crew trucks.
The Respondent builds houses using a system referred to as
“poly-steel.” The poly-steel system involves stacking styrofoam
forms and then filling those forms with concrete to create the
walls of the house. The Respondent adds a floor deck, a base-
ment, drywall, and shingles to the house. In addition, the Re-
spondent performs some backfill and grading around the house
site. Most of the Respondent’s house building work is local,
and the house crews are generally not required to be away from
home overnight. The equipment used by the house crews in-
cludes excavators, dump trucks, skid steer loaders, crew trucks,
concrete saws, shovels, hammers, and wheelbarrows.
B. Union Organizer Hired By Respondent
The Respondent’s employees are not represented by a union.
The record shows that it is not uncommon for the Respondent
to employ persons who are current or former union members
and that some such employees have worn clothing with union
names or insignias to the Respondent’s jobsites. However, prior
to April 2005, none of those employees had engaged in a cam-
paign to persuade other employees to organize for union repre-
sentation. This changed when Joe Farrell (Farrell), an organizer
with the Union, began working for the Respondent on April 18,
2005.
The series of events that lead to Farrell’s hiring and the al-
leged unfair labor practices began in late March or early April
2005, when the Respondent placed four help wanted advertise-
ments. In those advertisements, the Respondent stated that it
was seeking: (1) “Operators” with “excavator and skid-steer”
experience; (2) “Drivers/Laborers” with a “Class A CDL
[Commercial Driver’s License]”; (3) “Carpenters,” “CDL a
plus”; and (4) “Concrete Finishers/Laborers,” “CDL a plus,”
“[m]inimal concrete experience.” The Respondent stated that
weekly travel was a requirement for the operator positions, the
driver/laborer positions, and some of the concrete fin-
isher/laborer positions.
Farrell applied for the operator position, and met the qualifi-
cations for that job. In the resume he sent to the Respondent,
Farrell stated that he had experience as a truckdriver, equip-
ment operator, and mechanic, and that for the last 15 years he
had run his own construction business. He had a CDL and ex-
perience operating excavators and skid steers. Farrell made no
mention of his employment as a union organizer. On Friday,
April 15, T. Steele and Oliver interviewed Farrell. They de-
scribed the types of work the Company did, and asked Farrell if
he was available for work out-of-town. Farrell answered that
working out-of-town would “not be a problem” for him. Farrell
was told to report to work the following Monday, April 18. T.
Steele told Farrell that the Respondent was “flat-out swamped”
and that Farrell would be placed on a drill crew—one of the
types of tower crews—because that crew was lacking experi-
ence and needed someone with supervisory background. Farrell
was assigned to replace Dennis Peterson (Peterson), who was
resigning his position in order to begin work as an operator for
a union contractor. The Respondent was unaware that Farrell
was a union organizer at the time it hired him.
At approximately the same time as the Respondent hired Far-
rell, it hired three other individuals who had responded to the
help-wanted advertisements. Two of those individuals had ap-
plied for positions as laborers, and one had applied for a posi-
tion as a carpenter. Aside from Farrell, no one was hired who
had applied for an operator position. The new employees were
not provided with job descriptions or told that they would be
performing exclusively the type of work described in the adver-
tisements to which they had responded.
On Monday, April 18, Farrell began work as an operator on
one of the Respondent’s tower crews. The foreman of the crew
was Kristian Anderson (Anderson), and the other crew mem-
bers were Mike Barnewolt (Barnewolt) and, until April 19,
Peterson. While Farrell was on that crew from April 18–21,
Anderson assigned him to, inter alia, prepare the caisson drill
for operation and transportation, operate a skid steer, and drive
a semi-truck and a crew truck. During his first week, Farrell
worked an average of about 13 hours a day for a total of 52.5
hours over the 4 days that he was scheduled to work.
On the second day of his employment, April 19, Farrell be-
gan to tell coworkers that he was a union organizer. First he
told Peterson, and later that day he told Barnewolt. Farrell also
gave Barnewolt a copy of the Union’s standard contract and
described the Union’s healthcare plan to him. The next day,
April 20, Farrell told Anderson that he was a union organizer,
discussed concerns that Anderson had about his working condi-
tions, and offered to provide Anderson with a copy of the Un-
ion’s standard contract. Word of Farrell’s role as a union organ-
izer spread quickly among the Respondent’s personnel. During
Farrell’s first week of employment, Oliver informed T. Steele
that Farrell was a union organizer. Later that week, Farrell
asked T. Steele to avoid scheduling him on Friday, April 22, so
that he could attend union organizing school. T. Steele believed
there was no work for Farrell to perform on April 22, and he
granted Farrell’s request. Although, Farrell was off work on
April 22, he came to the Respondent’s office briefly to com-
plete application materials that called for somewhat more de-
tailed information regarding his background. In these materials,
Farrell stated that his construction business involved “concrete
work”—the first time that any of the documents regarding Far-
rell’s application made mention of experience with concrete.
C. Respondent Reassigns Farrell to House Crew
During the following weekend, after it discovered that Far-
rell was a union organizer, the Respondent told Farrell that he
was being reassigned to a house crew under the supervision of
foreman Brian Brink (Brink). As the foreman of the crew,
T. STEELE CONSTRUCTION, INC. 1175
Brink’s authority included directing employees’ work, issuing
some types of discipline, and helping decide when employees
could schedule leave. The record shows that Brink had a nega-
tive view of unions and union organizers and that T. Steele,
who made the decision to reassign Farrell, was aware of those
views. According to Brink’s own testimony, before seeing Far-
rell work, or even meeting the new employee, Brink concluded
that the Respondent had made a mistake by hiring Farrell be-
cause he was a union organizer. It was Brink’s opinion that
union organizers brought conflict to a workplace, and were not
“not there to work.” When he found out that Farrell was being
assigned to his crew, Brink, who still had not met Farrell,
formed “an impression” that Farrell would engage in divisive
tactics and that things might not work out. On April 20, before
Farrell started work on Brink’s crew, Brink told one of his crew
members, Thomas “Tom” Hall (Hall), and possibly others, that
T. Steele had made a mistake by hiring the union organizer.
The record shows that Brink held these beliefs even though he
had never previously worked with a union organizer or at a
facility where an organizing campaign was underway. His
negative impressions about working with Farrell were not,
Brink said, based on “past experience,” but rather on what he
termed “an educated opinion.” On more than one occasion, T.
Steele found it necessary to tell Brink to keep his views about
unions to himself.
The record shows that T. Steele also formed a negative im-
pression of what to expect from Farrell once he discovered that
Farrell was a union organizer. As of the time that Farrell’s un-
ion role became known, T. Steele admits that Farrell was doing
a fully satisfactory job for the Respondent. Nevertheless, T.
Steele testified that when he found out that Farrell was a union
organizer he became “very nervous” and “frightened for the
livelihood of the business.” T. Steele testified that when he
found out about Farrell’s connection to the Union he “knew”
that one of two things would happen—either Farrell “would
succeed in organizing the Company, or two, we were going to
be sued.” T. Steele stated that, in his view, Farrell was subject
to discharge as soon as the Respondent discovered that he was a
union organizer, since Farrell had not disclosed this information
when applying and lying on your application is cause for termi-
nation. T. Steele testified that, nevertheless, he chose not to
discharge Farrell at that time and told his foremen to “be cau-
tious,” and “keep their comments to themselves.”
During Farrell’s first week of work, T. Steele had a conver-
sation with Brink about Farrell. Brink told T. Steele, “[P]ut him
on my crew, I can run him off.” Brink’s end of the conversation
was overheard by Shawn Fuller (Fuller), a member of Brink’s
crew.1 Fuller was only about three feet from Brink when this
statement was made. After Brink completed the phone conver-
sation, he told Fuller that he had been speaking to T. Steele and
that Farrell was a union organizer.2 The Monday after T.

1 Hall was working at the same jobsite, but the evidence is inconclu-
sive as to whether Hall overheard Brink’s conversation
2 This account of Brink’s statement during the telephone call, and his
comments afterward, is based on the testimony of Fuller, who I found
to be a very credible witness. He took the stand for the General Counsel
under subpoena, and after confiding to T. Steele that he had reserva-
Steele’s telephone conversation with Brink, T. Steele trans-
ferred Farrell to Brink’s crew.3

tions about testifying. He had a calm and credible, although somewhat
reticent, demeanor, and did not appear to be straining to provide testi-
mony to benefit either side. He was not shown to be a union member or
supporter, nor was there evidence that he had any other bias or personal
interest in the outcome of this matter. My credibility findings with
respect to Fuller are made independently of the fact that he was still
working for the Respondent, and on Brink’s crew, at the time he testi-
fied. I nevertheless note that these findings are consistent with the
Board’s view that the testimony of a current employee that is adverse to
his employer is “given at considerable risk of economic reprisal, in-
cluding loss of employment . . . and for this reason not likely to be
false.” Shop-Rite Supermarket, 231 NLRB 500, 505 fn. 22 (1977); see
also Flexsteel Industries, 316 NLRB 745 (1995), enfd. mem. 83 F.3d
419 (5th Cir. 1996).
Hall testified that Brink had a telephone conversation in his and
Fuller’s presence. Although Hall’s account of what Brink said was
generally consistent with Fuller’s, Hall reported that Brink used some-
what harsher language. I believe Fuller’s account to be more reliable
than Hall’s. Hall actively supported the Union during the organizing
campaign, and at the time he testified was receiving strike pay from the
Union arising from a dispute between himself and the Respondent.
While testifying, Hall had very watery eyes and appeared either to be
suffering from a bad cold or to be minimally impaired in some other
way. He was an unusually restless witness, although this behavior did
not become appreciably more pronounced when he was being chal-
lenged about disputed matters. Based on my observation of Hall, and
the record as a whole, I believe that Hall was a somewhat credible
witness, but not very reliable regarding disputed matters.
Brink denied that he had a conversation in Fuller’s or Hall’s pres-
ence during which he suggested that Farrell be transferred to his crew
and “run off.” Based on Brink’s demeanor, testimony, and the record as
a whole, I conclude that Brink was a considerably less credible witness
than Fuller, and only about as reliable as Hall. First, Brink’s bias
against unions and union activity was apparent. Before he had ever
worked with Farrell, or any other union organizer, Brink concluded that
it was a mistake to hire a union organizer, and he espoused that view to
Hall and perhaps other supervisees. Although Brink claimed he was
“pretty neutral” on the subject of unions, his demeanor was palpably
hostile when testifying about them, and he repeatedly stated negative
impressions about unions and organizers. He originated the nickname
“Union Joe” for Farrell. He also made crude and disparaging reference
to Farrell’s union activity, telling Hall that Farrell “probably . . . got
Local 150 tattooed on his dick.” More than once, T. Steele found it
necessary to advise Brink to keep his opinions regarding union matters
to himself. It was also apparent that Brink exaggerated to provide tes-
timony favorable to the Respondent. To site just one example, in an
effort to explain Farrell’s termination, Brink claimed that he had disci-
plined Farrell “many times” in addition to the one documented incident.
However, when pressed, Brink conceded that he could recall only a
single instance of undocumented discipline. On that occasion, Brink
said, he had told Farrell not to use his cell phone during work time, and
there was never a problem with Farrell doing so again. Tr. 324–327,
347–348. Based on the testimony, and the record as a whole, I credit
Fuller’s testimony over Brink’s regarding disputed matters.
3 I base the finding that the conversation Fuller overheard was be-
tween Brink and T. Steele, on Brink’s contemporaneous statement to
Fuller, in which he identified T. Steele as the person to whom he had
been speaking. The Respondent did not interpose an objection to this
testimony, and I note, in any case, that Brink is an agent and supervisor
of the Respondent and that his statement is the admission of a party-
opponent, not hearsay. Fed.R.Evid. 801(d)(2); see also U.S. Ecology
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1176
Farrell remained on Brink’s crew until T. Steele discharged
him 7 weeks later, on June 10. During the time that Farrell was
on Brink’s crew, he performed laborer’s work almost exclu-
sively. The assignments that Brink gave to Farrell included
working with hammers, shovels, scrappers, and wheelbarrows,
and performing tasks such as tying up rebar, and digging
“crumbs” out of a ditch. There was a substantial amount of
operator work performed by Brink’s crew, but Brink virtually
never assigned that work to Farrell.
T. Steele testified that he transferred Farrell from Anderson’s
crew to Brink’s crew after the “crunch” on Anderson’s crew
was over. However, the evidence shows that, contrary to T.
Steele’s claim, there continued to be far more work on Ander-
son’s tower crew than on the house crew to which Farrell had
been moved. Prior to the transfer, Farrell had worked 52.5
hours over the course of his 4 days on Anderson’s crew. Em-
ployees who remained on Anderson’s continued to work long
hours and earn overtime—consistently working more than 50
hours a week, and sometimes over 60 hours a week. On the
other hand, after being transferred to Brink’s crew, Farrell
never again worked even 40 hours a week, and usually worked
far less. Indeed, he worked during 1 week a total of only 7.25
hours, and during another week he worked a total of only 14.25
hours. Of the employees who the Respondent hired in response
to the March/April help-wanted advertisements, only Farrell
had applied for the type of operator work that Farrell was per-
forming when he replaced Peterson on Anderson’s tower crew.
The Respondent does not explain how the “crunch” precipitated
by Peterson leaving the tower crew was relieved the following
week. Farrell’s reassignment was out of the ordinary for the
Respondent. Normally when employees were assigned to tower
crews they stayed on tower crews, helping out only occasion-
ally with other types of work.
In addition to claiming that the “crunch” on Anderson’s crew
was over, T. Steele testified that Farrell’s transfer was moti-
vated by the need on Brink’s crew for an employee skilled as a
concrete finisher. The evidence showed, however, that Brink
himself was a concrete finisher and that crew-member Fuller
also had skills as a concrete finisher. Brink testified that the
transfer occurred after he requested that an employee with a
CDL be assigned to his crew, and that he knew Farrell had a
CDL. However, Brink did not recall ever asking Farrell to per-
form work that required a CDL after the transfer was made.
During the period that he was assigned to Brink’s crew, Far-
rell continued his union activities. On April 27, he began dis-
tributing union authorization cards to the Respondent’s em-
ployees, and he handed out a total of about 5 such cards during
his tenure with the Respondent. From April 27 until the time of
his discharge, Farrell wore clothing with the Union’s name

Corp., 331 NLRB 223, 225 (2000), enfd. 26 Fed. Appx. 435 (6th Cir.
2001) (hearsay objection waived when testimony received without
objection). Moreover, Brink’s statement has adequate circumstantial
guarantees of reliability. Brink identified T. Steele contemporaneously
with the telephone conversation and the record suggests no reason why
Brink would have wanted to misinform Fuller about T. Steele’s partici-
pation. In addition, within days of the conversation, T. Steele actually
did reassign Farrell to Brink’s crew.
written on it to work each day. Farrell gave such clothing to
Hall, and Hall began wearing it to work as well. On April 28,
Farrell began driving to work in a car with a bumper sticker in
the back window that read “Defend your right to bear Union
Cards.” On May 31, Farrell handed out prounion literature to
employees as they arrived prior to the start of work—an activ-
ity that Brink witnessed. Farrell talked to at least 10 employees
about what he characterized as the benefits of union member-
ship. On June 6, Farrell made a report to the Occupational
Safety and Health Administration (OSHA) in which he asserted
that there were safety problems at the Respondent’s Geneseo,
Illinois jobsite. In a June 9 letter to T. Steele, Farrell identified
himself as the source of that report, and stated that he had other
alleged safety concerns about the Respondent’s operation. T.
Steele agreed to meet with Farrell on June 10 about those con-
cerns. As is discussed below, it was at that June 10 meeting that
T. Steele terminated Farrell.
D. Statements by Brink During Union Campaign
T. Steele repeatedly told Brink to keep his opinions to him-
self, yet Brink made multiple hostile comments to crew mem-
bers about Farrell and the union activity prior to Farrell’s dis-
charge. As stated above, during the first week of Farrell’s em-
ployment, Brink volunteered, in the presence of at least one
crew member, to “run [Farrell] off” the job. He told Hall, and
possibly others, that T. Steele had made a mistake by hiring a
union organizer. In mid-May, Brink had a conversation with
Fuller and Hall in which he told them that any employee who
signed a union card “would be fired.” Hall responded that there
was no way to find out who signed a card. Brink stated that
“there was ways of finding” out which employees “did or did
not” sign. On another occasion that same month, Brink told
Fuller and Hall that before “T. Steele . . . was to go union,” he
would “sell his drill . . . and just build houses.” Also in mid-
May, Brink asked Fuller whether Farrell had given him “the
union speech.” Brink posed this question to Fuller at a jobsite,
but out of the presence of other employees. Fuller recorded
some of Brink’s statements on a notepad when he got home in
order to help himself remember them.
Hall testified about another incident, on April 27, when he
says Brink made hostile comments regarding union apparel.
According to Hall, when Brink saw that he was wearing union
apparel, Brink commented “Why do you not walk in the office
and see how they appreciate [you] wearing those clothes,” and
that if Hall wore any more Union “garb” he “might as well join
them.” Hall also testified that Brink once commented “Nice hat
and sweatshirt,” in reference to the Union hat and sweatshirt
that Hall had on. According to Hall, he told Brink, “Yeah it was
free,” and Brink responded “No, it is going to cost you.” Brink
was not asked specifically about these alleged comments, but
did make a general testimonial denial that he did anything to
discourage employees from wearing union apparel. He also
denied that he said anything to Hall and Farrell “about reprisals
that may be taken with regard to wearing . . . clothing [with
union insignias].” Based on the record, and my assessment of
the credibility of the witnesses, see, above, footnote 2, I believe
it is possible that Brink made the comments about union cloth-
ing that Hall testified to. On the other hand, I found Hall and
T. STEELE CONSTRUCTION, INC. 1177
Brink to be equally unreliable as witnesses regarding disputed
matters. In the absence of any evidence significantly corrobo-
rating either witness regarding this exchange, I do not believe
the General Counsel has shown that Brink more likely than not
made the alleged threats to Hall about union apparel.
E. Farrell Meets with Tami Kuhlenbeck
Tami Kuhlenbeck (Kuhlenbeck) has responsibility for the
Respondent’s human resources functions and is also T. Steele’s
sister-in-law. On the morning of Friday, June 3, Farrell and
Hall met with her. Farrell asked Kuhlenbeck if he could take a
week of unpaid leave in August—approximately 2 months later
—to participate in a church mission. Kuhlenbeck responded
that it was an “awful busy time of year” and she would have to
“check into it.” Farrell said that, if necessary, he could “line up
somebody else, to take my place.” Kuhlenbeck responded, “oh,
no, we are not going to hire another union—another union
worker,” and that the Respondent was “a non-union shop.”4
The Respondent has admitted that Kuhlenbeck is an agent of
the company.

4 I credit Farrell’s account of Kuhlenbeck’s response to his offer to
find a replacement worker. Farrell testified in a very measured, certain,
manner. His testimony was free of meaningful contradictions and he
was not impeached by documentary evidence or the testimony of disin-
terested witnesses. In addition, Farrell’s account of Kuhlenbeck’s re-
sponse was corroborated by the testimony of Hall. Although, as dis-
cussed earlier, I do not consider Hall a fully reliable witness, his cor-
roborating testimony lends some credence to Farrell’s account. I have
also considered the fact that Farrell, as an employee of the Union who
was attempting to organize the Respondent, was not a disinterested
witness in this proceeding. However, based on Farrell’s demeanor and
testimony, and the record as a whole, I conclude that he was a generally
credible witness.
Kuhlenbeck recounted a different version of her response to Farrell’s
request on June 3. Like Farrell, she testified in a measured, certain,
manner. Also like Farrell, she was not a disinterested witness given her
position as the Respondent’s human resources official and her familial
relationship to T. Steele. Unlike with Farrell testimony, however, an
important contradiction was demonstrated during Kuhlenbeck’s testi-
mony regarding the meeting she had with Farrell and Hall. Kuhlen-
beck’s testimony was that, when Farrell offered to find a replacement
worker, her response was, “[W]e do not hire employees from the hall.”
However, in notes that she herself made shortly after the meeting, and
placed in Farrell’s personnel file, Kuhlenbeck recorded a completely
different response: “We are not a union shop. We do not hire temp
employees.” These notes actually corroborate part of Farrell’s account
and contradict Kuhlenbeck’s own. I also note that the evidence indi-
cates that Kuhlenbeck treated Farrell more harshly than other employ-
ees. She indicated that Farrell had to provide a doctor’s note in order to
be excused for his 1-day medical absence, but she did not ask for such
documentation from other employees who were out for medical reasons
for considerably longer periods of time. The Respondent’s employee
handbook states that a doctor’s note “may be required” after sick leave
of “two or more consecutive sick days,” and does not provide that the
Respondent may request such a note to excuse an absence when, like
Farrell, the employee is out for only 1 day. (GC Exh. 14, p. 14.) Based
on my assessment of the demeanor of the witnesses and the record as a
whole, I credit Farrell’s account over Kuhlenbeck’s regarding what was
said at the June 3 meeting.
F. Respondent Discharges Farrell
After requesting the opportunity to discuss his safety con-
cerns, Farrell had a meeting with T. Steele, Oliver, and
Kuhlenbeck on June 10. Farrell and T. Steele talked about Far-
rell’s safety concerns, and Farrell’s contact with OSHA, and
Farrell presented some jobsite photographs showing what he
said were safety problems. T. Steele stated that he appreciated
Farrell bringing the concerns to his attention, and also stated
that he did not understand why Farrell did not discuss them
with him before contacting OSHA. Farrell offered T. Steele a
copy of the Union’s standard memorandum of agreement, but
T. Steele refused to take it. Farrell asked if T. Steele would sign
the agreement, and T. Steele said that he was not interested in
entering into the contract. Then T. Steele told Farrell that he
was going to “have to let [him] go.” He stated that when Farrell
had first started work he had done a good job, but that Brink
said his performance was slipping. T. Steele said that this was
what the Respondent’s 90-day probationary period was for.55
T. Steele also commented that the Respondent had a lot of work
coming up, and needed someone who would get the work done.
The Respondent did not present evidence showing that the de-
cision to terminate Farrell on June 10, had been made prior to
that day, or even prior to Farrell’s presentation at the meeting.
Poor performance was the only reason T. Steele gave on
June 10 for discharging Farrell, but at trial he testified that the
decision was also based on Farrell’s attendance. Kuhlenbeck,
the Respondent’s human resources official, stated that her un-
derstanding was that Farrell’s attendance record had nothing to
do with the decision to terminate him, and that he was termi-
nated solely based on his performance.
1. Farrell’s performance
The testimony included general assessments of Farrell’s per-
formance, and also discussions of four specific instances relied
on by the Respondent to justify Farrell’s discharge. Hall, who
worked with Farrell on Brink’s crew, testified that Farrell was
“an excellent worker.” According to Hall, Farrell was “very
knowledgeable” and was “the first on the job and the last one to
leave.” Hall testified that he had never noticed Farrell slowing
down his work pace. The Respondent does not dispute that
Farrell’s performance was acceptable during the first few
weeks of his employment. T. Steele characterized Farrell as an
“average” employee during his first week. Shortly after Farrell
was transferred, Brink told T. Steele that Farrell was doing a
“nice job.” Similarly, Brink told Hall that Farrell was a “good
worker.” However, according to T. Steele, Farrell soon began
to slow his work pace, disrupt the crew, and use his cell phone
excessively during worktime. T. Steele conceded that he only
observed Farrell’s work during the first week of Farrell’s em-

5 At trial, T. Steele testified that the only provisions of the employee
handbook that do not apply during an employee's probationary period
are those relating to employee benefits such as health insurance, the
Company’s 401(K) plan, holidays, and so forth. All other provisions in
the handbook—including those regarding both progressive discipline
and those regarding at-will employment—are equally applicable during
the probationary period and the post-probationary period. Tr. 59–60,
470–471; GC Exh. 14.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1178
ployment, and therefore did not personally observe any of the
poor performance upon which the discharge decision was puta-
tively based. Rather, T. Steele testified that he based his opin-
ion that Farrell’s performance had deteriorated on reports from
Brink and, to a lesser extent, from Joseph Kuhlenbeck (J.
Kuhlenbeck), who observed Farrell at jobsites on two or three
occasions. J. Kuhlenbeck, in addition to being a supervisor for
the Respondent, is T. Steele’s nephew.
Brink testified that there was a negative change in Farrell’s
work pace, but he was unable to describe or quantify that
change in pace other than to say it was “very apparent” “to
everyone.”6 Brink did, however, discuss two specific instances
of problems. In one instance, Farrell spoke to a union represen-
tative named Marshall Douglas while at a jobsite and during
work time. Brink told Farrell he should concentrate on the work
and that “if he needed to speak with Mr. Douglas, he could do
that on his own time.” Brink testified that after he discussed the
matter with Farrell, he never saw Farrell engage in the conduct
again. In the second instance, Brink noticed Farrell talking on
his cell phone during worktime. Brink testified that he informed
Farrell that “personal calls were to happen, you know, on your
lunch break or on a break.” Brink testified that after this con-
versation, there was never a problem with Farrell using his cell
phone during worktime again.
J. Kuhlenbeck testified about an occasion when the truck he
was operating became disabled at a jobsite where Farrell and
Hall were present. J. Kuhlenbeck stated that Hall and himself
worked under the truck for about 25 or 30 minutes and com-
pleted the repair. According to J. Kuhlenbeck’s testimony on
direct examination, Farrell was “just kind of standing there
watching us, not really lending a hand.” J. Kuhlenbeck did not
ask Farrell to help, but stated that his expectation in such cir-
cumstances was that an employee would “jump right in and
start helping.” On cross-examination, J. Kuhlenbeck conceded
that there was only room for two employees to work under the
truck and that since he and Hall were already there, Farrell
could not participate directly in the repair. J. Kuhlenbeck also
admitted that while he and Hall were working, Farrell was of-
fering them advice on how to accomplish the repair. J. Kuhlen-
beck allowed that from his vantage point under the truck, he
could not be sure that Farrell was not assisting Brink during
some of the period when the repair was being made. J. Kuhlen-
beck testified that he did not tell T. Steele or anyone else at the
Respondent about this incident and never recommended that
Farrell be disciplined for it. Based on his demeanor, testimony,
relationship to T. Steele, and the record as a whole, I conclude
that J. Kuhlenbeck did not testify about this episode in an unbi-
ased manner, but rather tried to slant his account in an effort to
assist the Respondent’s case.
The fourth example of Farrell’s alleged poor performance
was testified to by Lawrence Steele (L. Steele), who is T.
Steele’s brother and an employee of the Respondent. On the
occasion in question, the crew was building a house in Gene-
seo, Illinois, in late April or early May 2005. Styrofoam forms
were stacked in the shape of the house’s walls and L. Steele

6 Brink, did not specifically deny Hall’s testimony that Farrell was
“always the first on the job and the last one to leave.”
was present to operate a concrete pump truck that would deliver
concrete into those forms. L. Steele was at the site for approxi-
mately 3 or 3-1/2 hours. Once the pumping of concrete started,7
L. Steele operated the pump truck and Brink maneuvered the
hose from which the concrete flowed. According to L. Steele, it
was Hall’s and Farrell’s role during this process to walk around
the building and check to make sure that seams were not sepa-
rating and otherwise help prevent the concrete that was being
poured from breaching or “blowing out” the styrofoam forms.
In addition, Hall and Farrell were expected to use a vibrating
device and also to tap the walls to help the concrete flow evenly
through the styrofoam forms. They also had responsibility for
making adjustments to the braces that were used to keep the
walls straight. On direct examination by the Respondent’s
counsel, L. Steele claimed that Hall and Farrell “just stood
around and talked” instead of doing the tasks that were ex-
pected of them. However, on cross-examination, L. Steele
stated that he is sure that Hall and Farrell must have operated
the vibrators while the concrete was being poured because that
is required on every job of this kind. L. Steele stated further
that whenever Brink directed Hall and Farrell to perform any
work, they did everything Brink demanded, and that it was
common for Brink to give direction to laborers on his crew. L.
Steele conceded that during the incident at-issue his attention
was focused on Brink, not on Hall’s or Farrell’s activities.
Based on his demeanor, testimony, relationship to T. Steele,
and the record as a whole, I conclude that L. Steele was not an
unbiased witness, but, like J. Kuhlenbeck, was shading his tes-
timony in an effort to buttress the Respondent’s position. At
any rate, L. Steele did not testify that he ever reported the inci-
dent to anyone prior to Farrell’s termination, and T. Steele did
not claim that his decision to terminate Farrell was influenced
by any report he received from his brother. Indeed, the Geneseo
work occurred early in Farrell’s tenure, most likely during the
period for which the adequacy of Farrell’s work performance is
not in dispute.
Farrell also testified about the work at the Geneseo site. He
stated that while the concrete was being poured into the walls,
he was, checking for leaks, making sure the braces were tight,
and also using the vibrator on the walls. According to Farrell, at
times he was working right beside L. Steele on a scaffold.
When asked what he was doing while the concrete was being
pumped, Farrell commented, somewhat flippantly, that he and
Hall were “Trying to keep clear of the hose so we didn’t get
splattered with concrete.” When asked whether he was “stand-
ing around” while the concrete was being poured, Farrell an-
swered “not that I remember,” rather than definitively denying
such behavior. I conclude that Farrell’s testimony regarding this
specific incident is not particularly reliable given the flippancy
and lack of certainty of some of that testimony.
The record shows that prior to Farrell’s discharge, T. Steele
never mentioned to Farrell that there were shortcomings in the

7 Before the concrete pumping started, Hall said he was feeling ill
and asked if someone would transport him to the offsite portable toilets
that the employees used. After at least one other individual at the job-
site refused to take Hall, Farrell did so. Hall and Farrell returned to the
jobsite within minutes after leaving.
T. STEELE CONSTRUCTION, INC. 1179
pace or quality of his performance, and certainly did not disci-
pline Farrell for performance problems. Similarly, although
Brink had authority to issue discipline to the workers on his
crew, he never disciplined Farrell for poor performance or ad-
vised him that he was slowing down the work. Brink frequently
told Farrell to work faster, but the record shows that Brink told
everyone on his crew to work faster on occasion. The Respon-
dent does not assert that Farrell lacks the skills to perform the
necessary tasks or that the work he produced was not of ade-
quate quality.
Although Farrell was never disciplined for poor perform-
ance, his personnel file contains a record that Tami Kuhlenbeck
made of negative comments that T. Steele told her he received
from Brink. According to that record, on May 18: “Tom Steele
said Brian Brink called to complain about Joe Farrell’s work
performance. Brian said he was slowing down.” Kuhlenbeck
also recorded that, on May 31: “Brian B[rink] complained to
Tom Steele again about Joe’s performance. He said Joe’s bring-
ing the pace down of his other workers.” Lastly, Kuhlenbeck
recorded that, on June 3, “Brian asked Tom to remove Joe from
his crew.”8 Kuhlenbeck testified that this type of record was
not kept for other employees. T. Steele conceded that he fre-
quently receives complaints from foremen about other employ-
ees, but that, unlike with Farrell, he did not have Kuhlenbeck
document those complaints in the employees’ personnel files.
In Farrell’s case, T. Steele testified, he had been advised to
“document, document, document” because Farrell was union
organizer. T. Steele stated that the Respondent had gone to
lengths in documenting matters relating to Farrell that it had not
with any other employee. Nevertheless, T. Steele chose not to
document positive comments that he received about Farrell’s
performance—for example, Brink’s report that Farrell was
doing a “nice job.”
2. Farrell’s attendance
Although the record raises significant doubts about T.
Steele’s assertion that Farrell’s attendance was taken into ac-
count at the time of the discharge, I considered the evidence
relating to Farrell’s attendance record.9 Farrell was absent on

8 Brink testified that this was not a request or recommendation that
Farrell be terminated.
9 Based on his demeanor and testimony, and the record as a whole, I
did not find T. Steele to be a very credible witness regarding disputed
matters. It was apparent that he allowed his personal stake in this matter
to affect his candor. For example, he attempted to explain why Farrell’s
performance dictated that he be terminated in part based on Farrell’s
request for a week of unpaid leave to attend a church mission. Tr. 458–
459. However, T. Steele admitted that he was not even sure he was
aware of that leave request at the time he discharged Farrell, and that it
played no actual part in the termination decision. Tr. 444. Initially, T.
Steele testified that he had personally observed Farrell’s performance
after the first week of Farrell’s employment, Tr. 88, but he later admit-
ted that he had never observed Farrell’s work performance after the
first week and that he based his negative assessment entirely on reports
from Brink and J. Kuhlenbeck, Tr. 454–455. T. Steele claimed that he
terminated Farrell for slowing down the work by, inter alia, talking on
his cell phone and he claimed to have observed this cell phone use “just
about any time I was on a jobsite where Joe was at.” Tr. 64. However,
as discussed above, T. Steele never observed Farrell during the period
four occasions over the course of the 8-week period that he
worked for the Respondent. The first time was April 22, the
Friday after he was hired. Farrell asked T. Steele in advance if
he could take that day off to attend a union training program. T.
Steele agreed, and testified that there was no work for Farrell to
perform that day. In Farrell’s personnel file, this was recorded
as an “excused absence.” On May 16, Farrell was absent to
attend a funeral. He obtained Brink’s approval for this absence
2 days in advance. The Respondent did not initially make a
record of this excused absence in Farrell’s file, but Kuhlenbeck
added a notation about it much later—some time after June 3–
in which she incorrectly noted the date of the absence as May
15, rather than May 16.
The next time Farrell was absent from work was May 25,
when he attended a meeting. Approximately 15 minutes before
the end of the workday on May 24, Farrell informed Brink that
he needed May 25 off. Brink told Farrell that employees had to
give at least 24 hours notice and that this was “spelled out” in
the employee handbook. Brink gave Farrell a verbal reprimand
for this supposed violation of the handbook policy, and the
reprimand was recorded in Farrell’s personnel file. This verbal
warning is the only recorded discipline that the Respondent
issued to Farrell prior to terminating him.10 Contrary to Brink’s
statement to Farrell, the employee handbook contains no men-
tion of a 24-hour notice requirement for absences. The only
notice period set forth in the handbook states that when an em-
ployee will be absent for unforeseen circumstances, the em-
ployee must inform his or her supervisor “at least 60 minutes
before normal reporting time.” It is undisputed that Farrell gave
his notice more than 60 minutes before his normal reporting
time. T. Steele did not corroborate Brink’s statement that there
was a 24-hour notice rule, but did state that, regardless of the
language in the employee handbook, he “likes” employees to
give their supervisors notice immediately upon discovering that

of Farrell’s alleged slow-down, but only during the early period when
he admits that Farrell’s work was satisfactory. Tr. 88. Initially, T.
Steele claimed that Farrell was terminated for poor work performance
and “missing frequently,” Tr. 60, but after he was confronted with
evidence about employees who were retained despite being absent
more frequently than Farrell, Tr. 66 ff., T. Steele shifted his position
and claimed that the problem was not the frequency of Farrell’s ab-
sences, but that he was absent at “inopportune times”—that is, he
picked days when the Respondent “really needed the body.” Tr. 83–84.
Then, when discussing Farrell’s missed days, T. Steele admitted that
there was no work for Farrell to perform when he was absent on April
22. Tr. 82–85.
10 The record does not establish that the Respondent consistently ad-
heres to a system of progressive discipline. The Respondent’s employee
handbook states a commitment to a progressive discipline system, but
does not describe that system in any detail. T. Steele testified that he
believes the Respondent tries to begin with a verbal warning, then
impose a written warning, then a suspension, and then termination. He
testified, however, that the Respondent “do[es] not adhere to it, as well
as we should.” Kuhlenbeck testified about five individuals who had
been discharged, but who she “did not believe” had received any prior
verbal or written reprimands. Brink testified about two individuals who
he believed had received formal warnings. The record shows that at
least one other individual received a written warning prior to being
terminated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1180
they will be absent. Brink did not claim to be aware of T.
Steele’s “immediate notice” preference, and the Respondent
does not claim that it was ever communicated to employees. At
any rate, Brink could not have known whether Farrell gave
immediate notice since Brink admitted that he was not sure
when Farrell himself found out that he would have to be absent.
At trial, Brink initially claimed that he had disciplined two
other employees (Tom Hall and Steve Stanley) for the same
reason as he did Farrell, but the record shows that those em-
ployees, unlike Farrell, were absent during periods for which
they had given no notice at all.
Farrell’s last absence prior to being terminated was on June
3. On than occasion, Farrell called Brink’s cell phone more
than an hour before normal starting time and left a message
explaining that he was having problems with his back and was
going to visit a doctor for treatment. Brink did not respond to
Farrell’s message. Farrell went to a doctor that day and did not
appear for work. The next workday was Monday, June 6. Far-
rell returned to the job and Brink almost immediately con-
fronted him to demand that Farrell produce a doctor’s note
regarding the 1-day absence. Farrell agreed to provide such a
note. Later that same day, Brink asked Farrell for the doctor’s
note again, and Farrell inquired whether he could leave work
early in order to visit the doctor’s office to obtain it. Brink said
that Farrell should call the doctor’s office and have them send
the note to the Respondent’s office by facsimile. Farrell called
his doctor’s office during the lunchbreak in an effort to comply,
but the doctor was unavailable and Farrell left a message. Later
that day, Brink approached Farrell a third time to tell him that
“we needed to take care of this issue, that we needed, you
know, something from the doctor stating that he was okay to
work.” Although Brink approached Farrell three times in one
day to demand a doctor’s note, Brink conceded that he had
never before demanded such a note unless the employee had
filed a worker’s compensation claim.
That same day, Farrell and Hall went to speak to Kuhlen-
beck.11 Kuhlenbeck asked Farrell whether he had obtained a
doctor’s note so that the 1-day absence would not be unex-
cused. When Farrell answered “no,” she suggested that he
“have it faxed in.” Farrell explained that he had tried to do that
without success. He said that he could obtain a note from the
doctor at his next appointment, but also stated that he would
have to check with his attorney about providing the note to the
Respondent. Kuhlenbeck told Farrell that it would be accept-
able if he obtained the note during his next visit to the doctor
and provided it to the Respondent at that time. The Respon-
dent’s employee handbook states that a doctor’s note may be
required for medical absences of 2 or more days, and does not
state that such a note may be required to excuse a medical ab-
sence of only 1 day. In other instances, the Respondent did not
require employees to supply doctor’s notes even after they had
been absent for medical reasons for significantly longer periods
of time than Farrell. The Respondent does not offer any nondis-
criminatory explanation for why it deviated from its policy and
practice when it came to Farrell’s 1-day absence for medical

11 Other aspects of the same June 3 encounter between Farrell and
Kuhlenbeck are discussed above.
reasons.
Evidence was presented about the attendance of other em-
ployees—including a number who were retained despite having
attendance records that were equivalent to, or worse than, Far-
rell’s. Daniel A.12 was eventually terminated for poor atten-
dance, but was permitted to continue working after he was ab-
sent six times, including one “no show,” during his first 7
weeks of employment with the Respondent. Jeff B. was al-
lowed to continue working even after he was out sick on five
separate occasions, and took an additional week off, all during
his first 3 months of employment. He called in sick for a total
of eleven days over his 7 months of employment before the
Respondent terminated him. Jim S. was allowed to continue
working even though he was absent three times during his first
2 weeks of employment with the Respondent, including twice
to care for his pet snake. The Respondent retained Jim S. even
after he was absent two more times the following month, and
did not terminate him until he insisted on additional time off
that the Respondent had explicitly refused to authorize. Adam
R. was retained even after he was absent five times during his
first month of employment. Three of those absences were “no
shows,” and on the two other occasions he called in sick. He
was terminated only after he had additional absences during the
subsequent weeks. Troy F., an employee with less than 1 year
of service, was retained even though, over the course of 7
months, he was absent for all or part of 15 days, in addition to
taking a 2-day vacation. This employee was eventually termi-
nated, but only after the Respondent issued him a written disci-
plinary warning and discovered that he had forged a doctor’s
excuse. Julio B. continues to work for the Respondent even
though, during his first 5 months of employment, he was absent
for 2 weeks while incarcerated, absent 3 days for court appear-
ances, and absent for medical reasons on two additional days.
There was also general testimony from Kuhlenbeck about other
individuals who were terminated for what she described as
attendance or performance problems, but the record contains no
further detail about the problems or circumstances that led to
termination in those cases.13

12 Testimony that discloses the full names of the comparator em-
ployees discussed herein can be found in the Tr. 66–70, 414–417, and
462–463.
13 At trial, the Respondent offered a summary document, identified
for the record as R. Exh. 3, which purported to identify the reasons that
the Respondent terminated a number of employees. Counsel for the
General Counsel and the Union objected to admission of the summary.
Since neither the General Counsel nor the Union had previously had an
opportunity to check the accuracy of the summary by comparing it to
the underlying, voluminous, records, I reserved ruling regarding the
admission of R. Exh. 3 and gave the General Counsel and Union 14
days to review the underlying documents and submit their objections, if
any, in writing. I stated that the Respondent would have 7 days to re-
spond to any such objections. The General Counsel and the Union both
filed timely objections to admission of the summary document, in
which they described multiple, significant, discrepancies between the
information in that summary document and the information in the un-
derlying business records. The Respondent did not file a response to
those objections within the time allotted and later informed staff of the
Division of Judges that the Respondent did not wish to submit a re-
sponse. Given the substantial nature of many of the unrebutted objec-
T. STEELE CONSTRUCTION, INC. 1181
G. The Complaint Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act: on about April 20, 2005, when Brink threat-
ened to discharge Joe Farrell because Farrell was a union or-
ganizer; on about April 27, 2005, when Brink threatened an
employee with unspecified reprisals for wearing clothing with
union insignias; on about May 16, 2005, when Brink threatened
that employees would be discharged if they signed union au-
thorization cards; on about May 16, 2005, when Brink created
the impression that the Respondent was surveilling employees’
union activities; on about May 16, 2005, when Brink threatened
that the Respondent would sell part of its business if employees
selected the Union to represent them; in mid-May 2005, when
Brink interrogated an employee about his union activities and
sympathies and those of other employees; and, on June 6, 2005,
when Kuhlenbeck threatened employees that the Respondent
would not hire another union employee in order to ensure that
the Respondent remained nonunion. The complaint further
alleges that the Respondent violated Section 8(a)(3) and (1) by
transferring Farrell on about April 25, 2005, and discharging
him on about June 10, 2005, because he assisted the Union and
engaged in concerted activities and to discourage employees
from engaging in those activities.
III. ANALYSIS AND DISCUSSION
A. Alleged Violations of Section 8(a)(1)
1. Threats
The General Counsel alleges a total of five unlawful
threats—four by Brink, and one by Kuhlenbeck. At all relevant
times, Brink and Kuhlenbeck were both agents of the Respon-
dent, and Brink was also a supervisor for purposes of Section
2(11) of the Act. The test to determine if a statement violates
Section 8(a)(1) is whether “under all the circumstances” the
remark “reasonably tends to restrain, coerce, or interfere with
the employee’s rights guaranteed under the Act.” GM Electrics,
323 NLRB 125, 127 (1997). “It is well established that this test
does not depend on motive or the successful effect of the coer-
cion.” Id.
The first allegation of an unlawful threat is based on the fol-
lowing statement, which Brink made about Farrell during the
week of April 17, 2005: “[P]ut him on my crew, I can run him
off.” Brink made this statement during a telephone conversation
with T. Steele in the immediate presence and hearing of his
supervisee, Fuller, and afterwards Brink turned to Fuller and
explained that he had been speaking to T. Steele and that Far-
rell was a union organizer. The Board has long held that an
employer violates Section 8(a)(1) of the Act when it threatens
to discharge or constructively discharge employees who are
union activists. Desert Toyota, 346 NLRB 118, 122 (2005)
(threat of discharge unlawful); Mercedes Benz of Orland Park,
333 NLRB 1017 (2001), enfd. 309 F.3d 452 (7th Cir. 2002)
(same); Lyman Steel Co., 249 NLRB 296, 301 (1980) (threat of
constructive discharge unlawful); Big Ben Shoe Store, 172
NLRB 1523 (1968), enfd. as modified 440 F.2d 347 (7th Cir.

tions made to the receipt of R. Exh. 3, I hereby sustain the objections to
its admission and reject the exhibit.
1971) (same); see also Albertson Mfg. Co., 236 NLRB 663, 665
(1978) (employer violates Section 8(a)(1) when it threatens to
constructively discharge union supporters by “living on their
backs”). This is true regardless of whether the threat to dis-
charge a union activist is communicated to the activist or, a
here, to another employee. See Desert Toyota, 346 NLRB No.
3, slip op. at 1 (statement to one employee linking another em-
ployee’s discharge to the latter’s support of the Union is coer-
cive and a violation of Act). Nor does it matter that a portion of
Brink’s statement, while made in Fuller’s presence and hearing,
was actually made as part of a telephone conversation with T.
Steele. See Exterior Systems, Inc., 338 NLRB 677, 679 (2002)
(threatening statement overheard by employee is violation of
the Act); Simpson Electric Co., 250 NLRB 309 (1980) (remark
made from one supervisor to another is unlawful when it was
made in presence of employees and had a tendency to coerce
those employees); see also TPA, Inc., 337 NLRB 282, 283
(2001) (supervisor’s statement that his boss had said to fire
persons involved in work stoppage was an unlawful threat).
Brink, by his statements, conveyed the message to Fuller that if
an employee engaged in organizational activities, that em-
ployee could be constructively discharged or “run off.” The
coercive impact of that message was heightened when the Re-
spondent discharged Farrell. Under all the circumstances, I
conclude that Brink’s statements would reasonably tend to
coerce an employee’s exercise of rights guaranteed by the Act.
For the reasons discussed above, I find that the Respondent
violated Section 8(a)(1) of the Act during the week of April 17,
2005, by threatening to force an employee off the job because
he was a union organizer.
The second allegation of an unlawful threat is based on the
statements that Hall testified Brink made on April 27, 2005,
regarding Hall’s decision to wear clothes with union slogans or
insignias. According to Hall, Brink told him that the clothes
were “going to cost [him]” and that if he wore such clothes “he
might as well join them.” Hall also testified that Brink dared
him to “walk in the office and see how they appreciate . . .
those clothes.” For the reasons discussed above, I found that the
record does not establish that Brink more likely than not made
these statements. Therefore, I will recommend that the allega-
tion regarding statements by Brink to Hall on April 27, 2005,
be dismissed.
The third alleged threat is the statement that Brink made to
Hall and Fuller in mid-May 2005 that any employee who
signed a union card “would be fired” and that “there was ways
of finding” out which employees “did or did not” sign. An em-
ployee’s decision to sign, or not sign, a union authorization
card is clearly protected by the Act, and an employer violates
Section 8(a)(1) by threatening to discharge employees who
choose to sign. Carroll & Carroll, Inc., 340 NLRB 1328,
1331–1332 (2003); Alaska Ship & Drydock, Inc., 340 NLRB
874, 880 (2003). I find that Brink’s statement to employees, in
mid-May 2005, that the Respondent would discharge anyone
who signed a union card was a threat in violation of Section
8(a)(1).
The fourth alleged threat is Brink’s statement to Fuller and
Hall in May 2005 that before “T. Steele . . . was to go union,”
he would “sell his drill . . . and just build houses.” An employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1182
violates the Act when it threatens to respond to protected activ-
ity by closing part of its business. John W. Hancock Jr., Inc.,
337 NLRB 1223 (2002); Air-Vac Industries, Inc., 259 NLRB
336, 342 (1981). Brink’s statement that the Respondent would
discontinue the phone tower portion of its operations if the
employees selected the Union as their bargaining representative
was a threat of partial closure and a violation of the Act. Such a
partial closure would reasonably be expected to put the jobs of
a significant number of employees in jeopardy. The Respondent
has not argued that Brink’s statement regarding partial closure
was a lawful “prediction” that was “carefully phrased on the
basis of objective fact to convey an employer’s belief as to the
demonstrably probable consequences beyond his control,”
NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), and the
evidence here would not support such a defense.
For the reasons discussed above, I find that Brink’s state-
ment to Fuller and Hall in May 2005 that the Respondent would
partially close its business if the employees selected the Union
as their bargaining representative was a threat in violation of
Section 8(a)(1).
The last allegation of an unlawful threat is based on Kuhlen-
beck’s June 3 statements to Farrell and Hall. On that occasion,
Farrell was asking for a week’s unpaid leave of absence, and
offered to find someone to fill in for him during that time.
Kuhlenbeck answered that the Respondent was “not going to
hire another union worker,” and was a “non-union shop.” An
employer’s statement that it will not hire union supporters is an
unlawful threat. Commercial Erectors, Inc., 342 NLRB 940,
942 fn. 4 (2004). I find that Kuhlenbeck’s statement that the
Respondent would refuse employment to union members was a
threat in violation of Section 8(a)(1).
2. Impression of surveillance
The General Counsel alleges that the Respondent unlawfully
created the impression that employees’ union activities were
under surveillance when, in mid-May 2005, Brink told Hall and
Fuller that employees who signed a union card “would be
fired” and responded to Hall’s statement that the Respondent
would not know who signed, by stating that the Respondent had
“ways of finding” out who “did or did not” sign. An employer
violates the Act when it creates the impression among its em-
ployees that it has placed their union activity under surveil-
lance. Robert F. Kennedy Medical Center, 332 NLRB 1536,
1539–1540 (2000). The employer’s conduct is evaluated from
the perspective of the employees and is unlawful if the employ-
ees would reasonably conclude from the statement in question
that their protected activities were being monitored. Rogers
Electric, Inc., 346 NLRB 508, 509 (2006); Robert F. Kennedy
Medical Center, above at 1540; Tres Estrellas de Oro, 329
NLRB 50, 50–51 (1999). Under these standards, the Board has
found that an employer unlawfully creates the impression of
surveillance when it tells employees that it can find out who
signs a union authorization card. Aquatech, Inc., 297 NLRB
711, 712–713 (1990), enfd. 926 F.2d 538 (6th Cir. 1991)
(statement that employer could learn which employees had
signed authorization cards created impression of surveillance);
National Telephone Directory Corp., 319 NLRB 420, 421
(1995) (employer violates the Act by giving employees the
impression that it will surveil their activities to determine which
employees sign union cards). In a representation proceeding,
the names of employees who sign authorization cards are gen-
erally withheld from the employer, National Telephone,
above—a principle that Hall indicated he was aware of. There-
fore, Brink’s statement that the Respondent “had ways” of ob-
taining that information suggested that the Respondent was
surveilling the employees’ union activities. Aquatech, Inc.,
supra.
I find that the Respondent violated Section 8(a)(1) by creat-
ing the impression that employees’ union activities were under
surveillance when, on May 2005, Brink told employees that the
Respondent had ways of finding out whether they signed union
cards.
3. Interrogation
The General Counsel alleges that the Respondent engaged in
an unlawful interrogation when Brink asked Fuller if Farrell
had given him the union speech. Fuller answered that Farrell
had talked to him about the subject in the past. An interrogation
is unlawful if, in light of the totality of the circumstances, it
reasonably tends to interfere with, restrain, or coerce employees
in the exercise of their Section 7 rights. Millard Refrigerated
Services, 345 NLRB No. 95, slip op. at 4–5 (2005); Mathews
Readymix, Inc., 324 NLRB 1005, 1007 (1997), enfd. in part
165 F.3d 74 (D.C. Cir. 1999); Emery Worldwide, 309 NLRB
185, 186 (1992). Relevant factors include, whether the interro-
gated employee was an open or active union supporter, the
background and timing of the interrogation, the nature of the
information sought, the identity of the questioner, the place and
method of the interrogation, whether a valid purpose for the
interrogation was communicated to the employee, and whether
the employee was given assurances against reprisal. Millard
Refrigerated, above; Stoody Co., 320 NLRB 18, 18–19 (1995);
Rossmore House Hotel, 269 NLRB 1176, 1177–1178 (1984),
enfd. 760 F.2d 1006 (9th Cir. 1985). Considering all the rele-
vant factors, I conclude that Brink engaged in a coercive inter-
rogation of Fuller in mid-May 2005. Fuller was not shown to
have chosen to make his views about union activity known.
Indeed, the record does not disclose whether he had taken any
position at all regarding such activity. Brink posed the question
against the background of his own open hostility towards the
union activity. At around the time the questioning took place,
Brink had unlawfully threatened that employees who engaged
in union activity would be subject to discharge and other re-
taliation. See Millard Refrigerated Services, above, slip op. at 5
(questioning unlawful where it occurred in a context that in-
cluded other coercive conduct). The question that Brink posed
related solely to union activities and was not shown to have any
legitimate purpose. See Structural Composite Industries, 304
NLRB 729 (1991) (violation found where employee questioned
was not an open union adherent and the questioning was di-
rected solely at the employee’s union activities). Brink posed
the question out of the presence of other employees and at a
jobsite where he had broad supervisory authority over Fuller.
The Respondent does not claim that Brink offered reassurances
that neither Fuller’s, nor Farrell’s, employment would be af-
fected by Fuller’s answer to the question about the union
T. STEELE CONSTRUCTION, INC. 1183
“speech.” All of these factors weigh heavily in favor of finding
that the questioning was coercive in violation of Section
8(a)(1).
Not all the evidence favors finding that the interrogation was
coercive. The questioner was a working foreman with whom
Fuller had daily contact—not T. Steele or some other high level
official with whom Fuller had less experience interacting.
Moreover, Brink did not pester Fuller with repeated, or particu-
larly pointed, questions. Based on the record, I do not consider
it implausible that Brink believed he was making small talk, but
the inquiry does not turn on Brink’s motives or on whether
Fuller was, in fact, coerced by the interrogation. Dlubak Corp.,
307 NLRB 1138, 1146 (1992), enfd. mem. 5 F.3d 1488 (3d Cir.
1993) (The test of whether an interrogation is coercive does not
turn on the Respondent’s motive, gentleness, or on whether the
coercion succeeded or failed.). After considering all of the cir-
cumstances discussed above, I conclude that the indicia that the
interrogation was coercive outweigh those that the interrogation
was benign in nature.
For the reasons stated above, I find that in mid-May 2005 the
Respondent violated Section 8(a)(1) by coercively interrogating
Fuller about employees’ union activities.
B. Reassignment of Farrell
An employer violates the Act by changing an employee’s
working conditions in order to deter or discourage union activi-
ties. Banta Catalogue Group, 342 NLRB 1311, 1322 (2004).
The General Counsel alleges that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by transferring Farrell from a
tower crew to a house crew because he had assisted the Union
and engaged in concerted activities. In Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., U.S. 393 (1983), the Board set forth
the standards for determining whether an employer acted on the
basis of union or protected activity. Under the Wright Line
standards, the General Counsel bears the initial burden of
showing that the Respondent’s actions were motivated, at least
in part, by antiunion considerations. The General Counsel may
meet this burden by showing that: (1) the employee engaged in
union or other protected activity, (2) the employer knew of such
activities, and (3) the employer harbored animosity towards the
Union or union activity. Senior Citizens Coordinating Council,
330 NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329
NLRB 355, 356 (1999).14 If the General Counsel establishes
discriminatory motive, the burden shifts to the employer to
demonstrate that it would have taken the same action absent the
protected conduct. Senior Citizens, 330 NLRB at 1105. The
Respondent cannot meet its Wright Line burden merely by
showing that a legitimate reason factored into its decision.

14 The Respondent contends that the General Counsel’s initial burden
under Wright Line was added to, or made heavier, by the Supreme
Court’s decision in Office of Workers’ Compensation Programs v.
Greenwich Collieries, 512 U.S. 267 (1994). The Board has already
considered and rejected that argument, stating that Greenwich Collier-
ies merely suggests a “change in phraseology” and “does not represent
a substantive change in the Wright Line test.” Manno Electric, Inc., 321
NLRB 278, 283 (1996).
Rather, the Respondent must show that the legitimate reason
would have resulted in the same action even in the absence of
the employee’s union and protected activities. Monroe Mfg.,
323 NLRB 24, 27 (1997).
The General Counsel has met its initial burden in this case.
By the time the Respondent transferred him, Farrell had en-
gaged in protected activity on multiple occasions. In addition to
identifying himself as a union organizer to all three other mem-
bers of Anderson’s crew, Farrell had given Barnewolt a copy of
the union contract, had told Barnewolt about the Union’s
healthcare plan, had discussed working conditions with Ander-
son, and had offered to provide Anderson with a copy of the
Union’s standard contract. Within a day or two of when Farrell
began work, T. Steele and Oliver learned that he was an organ-
izer. Not long after that, Farrell asked T. Steele if he could be
excused from work on Friday, April 22, in order to attend union
organizing school. Thus it is clear both that Farrell engaged in
union activity during his first week with the Respondent, and
that the Respondent was aware of that fact when it transferred
him effective the following Monday.
The evidence demonstrates the presence of antiunion animus
that was connected to the decision to transfer Farrell to Brink’s
crew. T. Steele testified that, in his view, he was entitled to
discharge Farrell during the first week of employment because
Farrell was a union organizer and had omitted that information
from his application.15 T. Steele did not immediately discharge
Farrell, but he did act quickly to transfer Farrell to a new crew.
That new crew was not just any one of the approximately seven
operated by the Respondent, but rather the crew operated by
Brink, a supervisor who was publicly and vehemently anti-
union. Indeed, during a conversation with T. Steele shortly
before the transfer, Brink had offered to force Farrell off the
job.
In addition, the record shows that T. Steele was hostile to un-
ions. As soon as he discovered that Farrell was a union organ-
izer, T. Steele formed a negative impression of what to expect
from Farrell. He also began to create a special document, not
maintained for other employees, in which he reported negative
comments that Brink made about Farrell’s performance. It is
clear that the purpose of this document was not to keep an ac-
curate record of Farrell’s performance, but to keep a negative
record. At trial, T. Steele admitted that Brink initially told him
that Farrell was doing a “nice job.” However, the special
document about Farrell’s performance does not record that
positive comment from Brink, or any other positive information
about Farrell, but rather is limited to Brink’s negative remarks.
T. Steele transferred Farrell to Brink’s crew, knowing that
Brink had offered to force Farrell off the job. When T. Steele
was asked at trial whether he had any anti-union animus or

15 This testimony is revealing regarding T. Steele’s behavior in this
case, but does not appear to be an accurate statement of the law. See
Winn-Dixie Stores, 236 NLRB 1547 (1978) (employer cannot discharge
employee for failing to reveal union status on employment application,
even if employer discharged individuals who falsified applications in
other respects); see also American Residential Services of Indiana, 345
NLRB 995, 1004 (2005) (omission on application is not material if it
concerns only status as a union organizer).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1184
belief, he answered “no,” but then, unsolicited, delivered an
angry diatribe—one of the lengthiest continuous statements by
any witness in this proceeding—about the conduct of unions
and union officials. (Tr. 450–452.)
The timing of Farrell’s transfer provides further evidence
that antiunion motivation played a part in the decision. See
North Carolina License Plate Agency # 18, 346 NLRB 293,
294 (2006) (“[T]he timing of the discharges, immediately fol-
lowing the employees’ threat to file a complaint, provides
strong evidence of . . . animus.”); Detroit Paneling Systems,
Inc., 330 NLRB 1170 (2000) (timing is an important factor in
assessing motivation in cases alleging discriminatory discipline
based on union or protected activity); Bethlehem Temple Learn-
ing Center, 330 NLRB 1177, 1178 (2000) (same). Farrell ap-
plied for an operator position and was assigned to a tower crew
on which he performed operator’s work. Generally employees
assigned to the Respondent’s tower crews continue to work
primarily on tower crews. However, almost immediately after
discovering that Farrell was a union organizer, T. Steele de-
cided to reassign Farrell to perform lower-skilled laborer’s
work on the house crew run by the very foreman who had of-
fered to force Farrell off the job. During Farrell’s remaining 7
weeks of employment, the Respondent assigned Farrell exclu-
sively to Brink’s house crew.
Since the General Counsel has made the required initial
showing, the burden shifts to the Respondent under Wright
Line, supra, to show that it would have taken the same action
even in the absence of Farrell’s protected activities. T. Steele
testified that he transferred Farrell because the “crunch” on
Anderson’s crew was over, and he needed someone on Brink’s
crew with experience as a concrete finisher. In addition, Brink
stated he had been asking for a crew member with a CDL, and
that Farrell had a CDL. For the reasons discussed below, I con-
clude that Respondent has not substantiated the nondiscrimina-
tory explanation it offers for Farrell’s transfer.
First, the Respondent failed to show that a “crunch” on
Anderson’s team had ended at the time Farrell was transferred.
To the contrary, the record shows that members of Anderson’s
crew continued to work long hours, often in excess of 60 hours
a week, while Farrell was working far fewer hours in his new
assignment with Brink’s crew. Indeed, during 1 week on
Brink’s crew, Farrell worked a total of only 7.25 hours and
during another week he worked a total of only 14.25 hours.
Moreover, when Farrell was initially hired he was assigned to
replace Peterson on Anderson’s crew and performed operator’s
work. The Respondent never explains why, after the first week,
it no longer needed Farrell to fill the vacancy left on Ander-
son’s crew by Peterson’s departure. Peterson did not return at
the time Farrell was transferred, and no one else hired during
that time period had applied to fill an operator opening. The
Respondent has also failed to substantiate the suggestion that
Farrell was reassigned because expertise with concrete work
was lacking on Brink’s team. Indeed, the record shows that
Brink himself was a concrete specialist and that crew-member
Fuller was skilled at concrete work. Regarding Farrell’s ability
to perform work for which a CDL was required, Brink said that
he could not remember ever assigning such work to Farrell
during the 7 weeks that Farrell was on his crew. The Respon-
dent has failed to meet its burden of showing that, absent dis-
crimination, it would have transferred Farrell from Anderson’s
to Brink’s crew because the “crunch” on Anderson’s team was
over and because Farrell’s particular skills were needed on
Brink’s crew.
The record leads me to conclude that the Respondent trans-
ferred Farrell to Brink’s crew in hopes that the strongly anti-
union Brink would manage to get rid of Farrell or impede his
organizational efforts. In fact, after the transfer, Brink consis-
tently assigned Farrell to perform laborer tasks instead of the
more skilled operator work that Farrell was qualified to do, had
applied to perform, and had initially been assigned to. More-
over, Farrell’s work hours were cut dramatically on Brink’s
crew. Brink openly disparaged Farrell at work, nicknaming him
“Union Joe,” and making a crude comment about Farrell’s
union activity. During the same period, Brink was unlawfully
coercing other crew members with multiple threats, interroga-
tion, and the impression of surveillance.
I find that the Respondent violated Section 8(a)(3) and (1)
when, on about April 25, 2005, it discriminatorily transferred
Farrell because of his activities on behalf of the Union.
C. Discharge of Farrell
The complaint alleges that the Respondent discharged Farrell
because he assisted the Union and engaged in concerted activi-
ties. The General Counsel easily meets its initial burden Wright
Line burden. It is undisputed that, prior to his discharge, Farrell
actively engaged in union and other protected activity and that
the Respondent was aware of that activity. As discussed above,
the Respondent knew, even before the transfer, that Farrell was
a union organizer. After the transfer, Brink observed Farrell
wearing union paraphernalia at the Respondent’s jobsites, dis-
playing union slogans in the car that he drove to work, talking
to a union official at a jobsite, and distributing union literature
to employees. At least one employee—Fuller—told Brink that
Farrell had spoken to him about the Union, and Brink saw Hall
wearing union paraphernalia that Farrell had provided. In addi-
tion, T. Steele was aware that Farrell had engaged in protected
activity by complaining to OSHA about the Respondent’s
safety practices, and was contemplating making further such
complaints. Postal Service, 338 NLRB 1052, 1057 (2003) (An
employee engages in protected activity by making complaints
to OSHA.); Garage Management Corp., 334 NLRB 940, 951
(2001) (same).
The record demonstrates that Brink’s antiunion animus
played a part in the decision to terminate Farrell. T. Steele testi-
fied that, when he decided to discharge Farrell, he relied on
Brink’s reports about Farrell’s performance. Brink’s animus,
and specifically his bias relative to Farrell, is amply demon-
strated by the record. Before he ever met Farrell, Brink com-
mented negatively about the new employee, remarking to one
or more of his supervisees that it was a mistake to hire a union
organizer. Brink stated that he could run Farrell off the job if
Farrell was transferred to his crew. When Brink found out that
Farrell was coming to his crew, he formed the impression that
Farrell would not work out, even though the two had still not
met. Once Farrell started working on Brink’s crew, Brink made
statements to supervisees in which he demeaned Farrell’s union
T. STEELE CONSTRUCTION, INC. 1185
activities. As found above, Brink also violated the Act by
threatening employees with adverse consequences for union
activity, interrogating an employee about union discussions,
and creating the impression that employees’ organizational
activities were under surveillance. Even T. Steele found it nec-
essary to advise Brink to keep his opinions about unions to
himself, and, at trial, Brink’s demeanor became palpably hostile
when he was testifying about unions. Brink’s antiunion animus,
and more particularly his hostility to the presence of a union
organizer on the Respondent’s work force, could not be clearer.
See, infra, footnote 2. Brink’s animus unlawfully taints the
Respondent’s decision to discharge Farrell, even if one assumes
that T. Steele’s motives were not unlawful, since T. Steele
based the decision to discharge Farrell largely on the reports he
received from Brink. The Respondent’s reliance on the tainted
reports establishes a nexus between the discharge and unlawful
discrimination, and satisfies the final element of the General
Counsel’s initial burden. Parts Depot, Inc., 332 NLRB 670,
672 (2000), enfd. 24 Fed. Appx. 1 (D.C. Cir. 2001).
By stating that the General Counsel’s case regarding Far-
rell’s discharge does not depend on a showing that T. Steele
was himself motivated by unlawful discrimination, I do not
mean to suggest that the record shows T. Steele was, in fact,
acting without such motivation. To the contrary, I conclude that
the evidence suggests antiunion animus played a part in T.
Steele’s action. T. Steele stated that, in his view, Farrell was
subject to discharge as soon as it was discovered that Farrell
was a union organizer and had not disclosed that information
on his application. T. Steele relied on the negative reports that
Brink made regarding Farrell, even though T. Steele knew that
Brink had offered to force Farrell off the job and had trouble
keeping his views on unions to himself. Moreover, T. Steele
relied on Brink’s reports without giving Farrell an opportunity
to respond or explain. Such failure would be an indicia of dis-
criminatory intent even if T. Steele had not been aware of
Brink’s hostility towards union activity; but given that T. Steele
was aware, his actions are hard to understand other than as
evidence that he was not interested in determining whether the
misconduct described by Brink had actually occurred. See Gov-
ernment Employees (IBPO), 327 NLRB 676, 700–701 (1999),
enfd. mem. 205 F.3d 1324 (2d Cir. 1999) (failure to afford
employee an opportunity to respond to allegations before im-
posing discipline “lends support to an inference of unlawful
motivation and shows that [the employer] was not truly inter-
ested in determining whether misconduct had actually oc-
curred”); New Orleans Cold Storage & Warehouse Co., 326
NLRB 1471, 1477 (1998), enfd. 201 F.3d 592 (5th Cir. 2000)
(The failure to conduct a meaningful investigation and to give
the employee who is the subject of the investigation an oppor-
tunity to explain are clear indicia of discriminatory intent.).
Moreover, as discussed above, the evidence shows both that T.
Steele bore antiunion animus, and that he had been working to
assemble a negative, one-sided, paper trail regarding Farrell’s
performance.
The timing of Farrell’s termination also lends support to the
view that his union and other protected activity motivated the
Respondent’s decision to terminate him. See North Carolina
License Plate Agency, 346 NLRB No. 30, slip op. at 2; Detroit
Paneling Systems, 330 NLRB at 1170; Bethlehem Temple
Learning, 330 NLRB at 1178. Farrell was terminated on June
10, only 1 day after informing T. Steele that he had brought
various safety concerns to the attention of OSHA. T. Steele
discharged Farrell at the June 10 meeting Farrell had requested
in order to describe additional safety concerns he said he might
raise with OSHA. Farrell’s contacts with OSHA were protected
activity. Postal Service, 338 NLRB at 1057; Garage Manage-
ment, 334 NLRB at 951. At the same meeting, Farrell took one
of the bolder steps of the union campaign—presenting T. Steele
with the Union’s standard memorandum of agreement and ask-
ing him, face-to-face, if he would sign it. T. Steele discharged
Farrell immediately after the parties finished discussing Far-
rell’s safety concerns and the union contract. The evidence does
not show that the decision to carry out Farrell’s discharge on
June 10 had been made prior to that day, or even prior to Far-
rell’s presentation. Indeed the evidence suggests the contrary—
showing that, before June 10, T. Steele had never told Farrell
about any of the performance problems upon which the dis-
charge was supposedly based. Moreover, if T. Steele had previ-
ously decided to discharge Farrell effective June 10 for legiti-
mate reasons, one would have expected T. Steele to initiate a
meeting for the purpose of communicating that decision, not
wait for the meeting that Farrell initiated regarding safety con-
cerns and the union contract. At any rate, the Respondent did
not show that Farrell had any specific performance problems
during the few days immediately preceding his discharge that
would indicate that poor performance, and not protected activ-
ity, account for the suspicious timing of the discharge.
In reaching the conclusion that the General Counsel has
shown that antiunion motivation played a part in Farrell’s dis-
charge, I considered the evidence that, prior to Farrell’s arrival,
the Respondent had often knowingly hired union members and
allowed them to work unharassed.
However, prior to Farrell’s arrival, none of the union mem-
bers hired by the Respondent engaged in an effort to convince
the Respondent’s employees to organize for union representa-
tion. As the Board has recognized, an employer's tolerance of
an employee's union affiliation does not show that it will not
react unlawfully to a present effort to organize its employees.
H.B. Zachry, 332 NLRB 1178, 1183 (2000); see also
Zurn/N.E.P.C.O., 345 NLRB No. 1, slip op. at 9 (2005) (That
the [employer] hired several union electricians does not negate
the strong evidence that the [employer] discriminated against
[another applicant] because of his union status.).
Since the General Counsel has made the required initial
showing, the burden shifts to the Respondent under Wright
Line, supra, to show that it would have taken the same action
even in the absence of Farrell’s protected activities. The Re-
spondent asserts that Farrell was discharged for essentially two
reasons: (1) he was slowing down the pace of his own work and
that of the crew, and (2) his attendance was unacceptable. I
conclude that the Respondent has failed to meet its burden of
showing that, absent discrimination, T. Steele would have dis-
charged Farrell for the stated reasons. To support the claim that
the discharge was based on Farrell’s pace, the Respondent re-
lied primarily on the testimony of Brink. As stated above, I did
not consider Brink a very credible witness, and his testimony
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1186
about Farrell’s performance is particularly suspect given the
evidence of his personal bias and declared willingness to force
Farrell off the job. Brink’s testimony regarding Farrell’s alleged
deficiencies is further undermined by his lack of precision and
the insubstantial nature of the few specific instances he was
able to recall. Brink could not describe or quantify the slowing
in Farrell’s work pace other than to say it was “very apparent . .
. to everyone.” When pressed for examples, he presented only
two. In one, Farrell was talking to a union official during work
time. Brink told him that this was not permissible and Farrell
never did it again. In the second episode, Farrell was talking on
his cell phone during worktime. This time, too, Farrell never
engaged in the conduct again after Brink told him to stop.
The Respondent attempts to use the testimonies of J.
Kuhlenbeck and L. Steele to buttress its claim that it would
have discharged Farrell based on poor performance even absent
the protected activities. Each of those witnesses testified about
an additional example of allegedly inadequate performance by
Farrell—J. Kuhlenbeck about an occasion when his truck was
damaged and required repair, and L. Steele about Farrell’s and
Hall’s performance when concrete was being pumped into the
walls of a house. Their testimony regarding those occasions is
of limited relevance since both witnesses conceded that they
did not tell T. Steele, or any other official of the Respondent,
about the incidents. Thus it is hard to see how J. Kuhlenbeck’s
and L. Steele’s perceptions regarding Farrell’s performance on
those occasions could have led T. Steele to discharge Farrell
absent the protected activity. At best, their testimony about
those occasions might lend some support to Brink’s claim that
the Farrell’s poor performance was “very apparent . . . to eve-
ryone.” However, I conclude that their testimony regarding
those episodes should not be afforded even that weight. As
discussed earlier, both J. Kuhlenbeck and L. Steele were biased
witnesses who slanted their accounts in an effort to favor the
Respondent. The two examples of Farrell’s inadequate per-
formance that they testified about on direct examination were
revealed, on cross-examination, to be exaggeration bordering
on fabrication.
The Respondent also fails to substantiate the claim that Far-
rell’s attendance record would have led the Respondent to dis-
charge him in the absence of the protected activity. As stated
above, the evidence leaves significant questions about whether
attendance was even considered at the time that Farrell was
discharged. The Respondent did not mention attendance to
Farrell when it explained the basis for his discharge to him on
June 10, and Kuhlenbeck—the Respondent’s human resources
official—testified that her understanding was that attendance
played no part in the termination. T. Steele’s trial testimony
regarding the subject was tellingly inconsistent. At first he
claimed that Farrell was terminated, in part, for “missing fre-
quently,” but when confronted with evidence that the Respon-
dent retained employees who were absent more frequently than
Farrell, T. Steele changed his story and stated that the problem
was not the frequency of Farrell’s absences, but that Farrell
picked days when the Respondent needed him most. Then,
when discussing Farrell’s missed days, T. Steele admitted that
there was no work for Farrell to perform when he was absent
on April 22.
The Respondent’s contention that Farrell would have been
discharged for poor attendance is also not substantiated by the
evidence regarding comparator employees. To the contrary, as
discussed above, that evidence showed that the Respondent
retained a number of new employees who were not union or-
ganizers even though they had attendance records that were
worse, and in some cases significantly worse, than Farrell’s.
When employees who were not involved in protected activity
are given lesser discipline for worse conduct it suggests an
improper motive. Detroit Newspapers, 342 NLRB 1268, 1270
(2004), remanded 435 F.3d 302 (D.C. Cir. 2006); Aldworth
Co., 338 NLRB 137, 209 (2002); and New Otani Hotel & Gar-
den, 325 NLRB 928 fn. 2 (1998). Moreover, the record leaves
the definite impression that the Respondent was attempting to
trump up evidence that Farrell’s attendance was unacceptable.
As discussed earlier, Brink issued a verbal reprimand to Farrell
that was putatively based on Farrell’s failure to give the 24-
hour, pre-absence, notice that was required by the handbook
policy. However, the evidence revealed that the policy in the
handbook only required 1 hour’s notice and that Farrell had
given approximately 12 hours’ notice. Moreover, Brink had
never disciplined any other employee who gave notice, but did
not do so 24 hours in advance. In a similar vein, the record
shows that more than 2 weeks after the fact, the Respondent
inserted a negative notation into Farrell’s personnel file regard-
ing his absence on May 16,16 even though Farrell had obtained
prior permission from Brink to be absent that day to attend a
funeral. I recognize, that it is not the Board’s role to substitute
its judgment about appropriate discipline for that of the em-
ployer, but it is the Board’s responsibility “to evaluate whether
the reasons the employer proffered for the discipline were the
actual reasons or mere pretexts.” Desert Toyota, 346 NLRB
No. 3, slip op. at 3–4. Based on the record evidence, I conclude
that, in this case, the reasons the Respondent gives for terminat-
ing Farrell were not its true reasons, but mere pretexts for
unlawful discrimination.
The Respondent presented evidence that its work force had a
fair amount of turnover and, in particular, that the three em-
ployees hired at approximately the same time as Farrell had all
been terminated as of the hearing. However, the Respondent
presented no further detail regarding the timing, bases, or other
circumstances surrounding those terminations. Without such
detail, the evidence that other employees were discharged does
not shed meaningful light on the question of whether the Re-
spondent would have discharged an employee who was compa-
rable to Farrell, but who did not engage in protected activities.
For the reasons discussed above, I conclude that the Respon-
dent violated Section 8(a)(3) and (1) of the Act by discrimina-
torily discharging Farrell because he assisted the Union and
engaged in concerted activities.
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 Union is labor organization within the meaning of

16 The personnel file actually reports this as May 15, a Sunday, but it
is clear from the record that it referred to Farrell's absence on May 16.
T. STEELE CONSTRUCTION, INC. 1187
Section 2(5) of the Act.
3. The Respondent interfered with employees’ exercise of
their Section 7 rights in violation of Section 8(a)(1) of the Act:
during the week of April 17, 2005, by threatening to force an
employee off the job because he was a union organizer; in mid-
May 2005, by threatening to discharge any employee who
signed a union card; in May 2005, by threatening to partially
close its business if employees selected the Union as their bar-
gaining representative; on June 3, 2005, by threatening to re-
fuse employment to individuals because they are union mem-
bers; in May 2005, by creating the impression that employees’
union activities were under surveillance; and, in mid-May
2005, by coercively interrogating an employee about union
activities.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act: on about April 25, 2005, by discriminatorily reassigning
Joe Farrell because he assisted the Union; and, on June 10,
2005, by discriminatorily discharging Joe Farrell because he
assisted the Union and engaged in concerted activities.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In addition to the usual cease-and-
desist order and other affirmative relief, I recommend that the
Respondent be ordered to offer Joe Farrell full reinstatement to
a position as an operator on a tower crew and make him whole
for any loss of earnings and other benefits he suffered as a re-
sult of his unlawful reassignment and termination. The backpay
is to be computed in accordance with F. W. Woolworth, Co., 90
NLRB 289 (1950), with interest computed in accordance with
New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.17
ORDER
The Respondent, T. Steele Construction, Inc., Rock Island,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to force employees off the job because they
are union organizers or engage in union activities.
(b) Threatening to discharge employees if they sign union
authorization cards.
(c) Threatening to partially close its business if employees
select a union as their collective-bargaining representative.
(d) Threatening to refuse employment to individuals because
of their union membership.
(e) Creating the impression that employees’ union activities
are under surveillance.
(f) Coercively interrogating employees about union activi-
ties.
(g) Reassigning any employee because he or she assists a un-

17 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.
ion and/or engages in concerted activities.
(h) Discharging any employee because he or she assists a un-
ion and/or engages in concerted activities.
(i) 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 Joe Far-
rell full reinstatement to a position performing work as an op-
erator on a phone tower crew, without prejudice to any rights or
privileges previously enjoyed.
(b) Make Joe Farrell whole for any loss of earnings and other
benefits he suffered as a result of the discrimination against him
in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Joe Farrell,
and within 3 days thereafter, notify him that this has been done
and that the discharge will not be used against him in any way.
(d) 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 re-
cords, 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.
(e) Within 14 days after service by the Region, post at its fa-
cility in Rock Island, Illinois, copies of the attached notice
marked “Appendix.”18 Copies of the notice, on forms provided
by the Regional Director for Subregion 33, after being signed
by the Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since April 18, 2005.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1188
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your 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 threaten to force you off the job because you
are a union organizer or engage in union activities.
WE WILL NOT threaten that you will be discharged if you sign
a union authorization card.
WE WILL NOT threaten that we will close part of our business
if you select the union as your collective-bargaining representa-
tive.
WE WILL NOT threaten to refuse to employ individuals be-
cause they are union members.
WE WILL NOT create the impression that your union activities
are under surveillance.
WE WILL NOT coercively interrogate you about union or other
protected activities.
WE WILL NOT reassign, discharge, or otherwise discriminate
against you for supporting a union, participating in union ac-
tivities, or engaging in other protected activities.
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 the Board’s Order,
offer Joe Farrell full reinstatement to a position performing
work as an operator on a phone tower crew, without prejudice
to any rights or privileges previously enjoyed.
WE WILL make Joe Farrell whole for any loss of earnings and
other benefits he suffered as a result of our unlawful reassign-
ment and discharge of him, in the manner set forth in the rem-
edy section of the decision.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to Joe Farrell’s unlawful
discharge, and within 3 days thereafter notify him that this has
been done and that the discharge will not be used against him in
any way.
T. STEELE CONSTRUCTION, INC.