Tschiggfrie Properties, LTD

National Labor Relations Board - Board Decisions

Feb 13, 2017

365 NLRB No. 34 (N.L.R.B. 2017)

365 NLRB No. 34
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Tschiggfrie Properties, Ltd and Teamsters Local 120,
a/w International Brotherhood of Teamsters.
Case 25–CA–161304
February 13, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On June 24, 2016, Administrative Law Judge Keltner
W. Locke issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief and cross-exceptions,
and the Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions1 only to the extent consistent with
this Decision and Order.2

1 We adopt the judge’s findings that the Respondent’s August 17,
2015 written warning to employee Darryl Galle independently violated
both Sec. 8(a)(1) and (3) of the Act.
We also adopt the judge’s finding that the Respondent’s discharge of
Galle violated Sec. 8(a)(3). Initially, we agree with the judge’s state-
ment of the General Counsel’s initial Wright Line burden. See Mesker
Door, Inc., 357 NLRB 591, 592 & fn. 5 (2011) (General Counsel estab-
lishes antiunion motivation of employer’s conduct in the first instance
by showing “union activity by the [affected] employee, employer
knowledge of the activity, and antiunion animus by the employer”; the
General Counsel’s initial burden does not include a fourth “nexus”
element). The judge correctly found that the General Counsel estab-
lished that Galle’s union activity, which included initiating the organiz-
ing campaign, serving as the Union’s election observer, and frequently
discussing the Union with coworkers, was a motivating factor in the
Respondent’s decision to discharge him. The Respondent clearly had
knowledge of Galle’s union activity—its August 17 warning to Galle
expressly disciplined him for engaging in union discussions—and that
warning also establishes animus.
The judge also correctly found that the Respondent failed to estab-
lish that it would have discharged Galle even in the absence of his
union activity. The Respondent’s General Manager Rodney Tschig-
gfrie testified that he discharged Galle for sleeping on the job and for
having a nonwork-related website open on his personal laptop on Octo-
ber 1, 2015. The Respondent, however, had known for months that
Galle had been sleeping on the job, yet it never disciplined him for it.
The Respondent claims that it was awaiting documentation from Gal-
le’s doctor to verify if Galle had a medical condition that caused him to
fall asleep on the job. However, the Respondent never followed up
with Galle about this documentation even after several months had
passed without receiving it. Moreover, the Respondent made no refer-
ence to sleeping on the job when discharging Galle. With regard to
Tschiggfrie’s observing a nonwork-related website open on Galle’s
laptop, we note that the Respondent allows employees to use their
personal computers for work and does not have a rule prohibiting em-
ployees from accessing nonwork-related websites. Moreover, the Re-
spondent did not attempt to verify Galle’s claim that he was using his
The General Counsel excepts to the judge’s finding
that the Respondent’s prehearing interviews with em-
ployee Bill Kane did not violate Section 8(a)(1).3 For the
reasons that follow, we reverse the judge and find this
violation.
The Respondent’s attorney, Davin Curtiss, and Gen-
eral Manager Tschiggfrie interviewed Kane twice in
preparation for the hearing in this case. The first inter-
view was approximately a month before the hearing, and
the second interview was approximately a week before
the hearing. During the first interview, the Respondent
questioned Kane about the union campaign and Galle’s
approaching Kane to talk about the Union. Kane testi-
fied that he could not “honestly say” whether the Re-
spondent told him that the first interview was voluntary,

laptop to get information about a truck transmission on which he was
working. Instead, the Respondent immediately discharged Galle and
only subsequently investigated his use of the internet. Further, alt-
hough Tschiggfrie testified that the Respondent regards accessing non-
work-related websites during work time as “theft of company time,” the
Respondent did not establish that it has previously punished an em-
ployee for accessing a nonwork-related website during work time or for
committing any comparable infraction. We therefore find, in agree-
ment with the judge, that the Respondent failed to establish that it
would have discharged Galle even in the absence of his union activity.
Acting Chairman Miscimarra disagrees with the judge’s statement
that the General Counsel does not have to prove a connection between
an employer’s antiunion animus and the adverse employment action,
the lawfulness of which is at issue. In Wright Line, the Board stated
that the General Counsel must make “a prima facie showing sufficient
to support the inference that protected conduct was a ‘motivating fac-
tor’ in the employer’s decision.” 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Thus,
under Wright Line, the General Counsel must establish a link or nexus
between the employee’s protected activity and the employer’s decision
to take the employment action alleged to be unlawful. See Libertyville
Toyota, 360 NLRB 1298, 1306 fn. 5 (2014) (then-Member Miscimarra,
concurring in part and dissenting in part), enfd. 801 F.3d 767 (7th Cir.
2015); Starbucks Coffee Co., 360 NLRB 1168, 1172 fn. 1 (2014) (then-
Member Miscimarra, concurring); see also AutoNation, Inc. v. NLRB,
801 F.3d 767, 775 (7th Cir. 2015) (holding that “there must be a show-
ing of a causal connection between the employer’s anti-union animus
and the specific adverse employment action on the part of the deci-
sionmaker”); Nichols Aluminum, LLC v. NLRB, 797 F.3d 548, 554–555
(8th Cir. 2015), denying enforcement of 361 NLRB No. 22 (2014)
(“Simple animus toward the union is not enough. While hostility to a
union is a proper and highly significant factor for the Board to consider
when assessing whether the employer’s motive was discriminatory,
general hostility toward the union does not itself supply the element of
unlawful motive.”) (alterations and internal quotations omitted). Ap-
plying this standard, Acting Chairman Miscimarra finds the General
Counsel made the requisite prima facie showing required under Wright
Line in this case.
2 We shall amend the remedy and modify the judge’s recommended
Order to conform to our findings and the Board’s standard remedial
language. We shall also substitute a new notice to conform to the Or-
der as modified.
3 The General Counsel does not except to the judge’s failure to find
that the Respondent’s prehearing interview with Samuel Becker violat-
ed Sec. 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
but the Respondent did not tell Kane that it would not
take any action against him as a result of the first inter-
view. During the second interview, the Respondent
again questioned Kane about the union campaign without
telling him that the interview was voluntary or assuring
him that it would not take action against him as a result
of the interview.
When an employer interviews an employee about pro-
tected activity in preparation for an unfair labor practice
hearing, “the employer must communicate to the em-
ployee the purpose of the questioning, assure him that no
reprisal will take place, and obtain his participation on a
voluntary basis.” Johnnie’s Poultry Co., 146 NLRB 770,
774–775 (1964), enf. denied 344 F.2d 617 (8th Cir.
1965). “The Board has held that compliance with John-
nie’s Poultry safeguards constitutes the minimum re-
quired to dispel the potential for coercion in cases where
an employer questions employees in preparing for a
Board hearing.” Albertson’s, LLC, 359 NLRB 1341,
1343 (2013) (internal quotations omitted), affd. and in-
corporated by reference in 361 NLRB No. 71 (2014); see
also Freeman Decorating Co., 336 NLRB 1, 19 (2001)
(stating that the Board takes a “bright-line approach” in
enforcing the Johnnie’s Poultry safeguards), enf. denied
on other grounds sub nom. Stage Employees IATSE v.
NLRB, 334 F.3d 27 (D.C. Cir. 2003).4
During both interviews, the Respondent questioned
Kane about protected activity by asking him about the
union campaign and Galle’s approaching him to talk
about the Union. The Respondent failed to provide Kane
with assurances against reprisals at both interviews and
failed to inform him that his participation in the second
interview was voluntary. By questioning Kane at the
prehearing interviews without complying with Johnnie’s
Poultry, the Respondent violated Section 8(a)(1).5
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-

4 We agree with the General Counsel that the judge erred by apply-
ing the Rossmore House standard governing alleged interrogations.
269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). See Bill Scott
Oldsmobile, 282 NLRB 1073, 1075 (1987) (finding that the dissent’s
reliance on Rossmore House was misplaced because “the nature and
circumstances of employer interviews in preparation for litigation justi-
fy a more formal standard for ensuring that employees’ rights are pro-
tected”).
5 Acting Chairman Miscimarra agrees that the interviews of employ-
ee Kane violated Sec. 8(a)(1), and he would reach the same result under
the “totality of the circumstances” standard the Board adopted in
Rossmore House, supra. He does not reach and expresses no view as to
whether an interview in preparation for an unfair labor practice hearing
that does not strictly adhere to the Johnnie’s Poultry safeguards may
nonetheless be noncoercive and lawful in certain circumstances.
sist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, having found that the Respondent violat-
ed Section 8(a)(3) and (1) by issuing a written warning to
Darryl Galle on August 17, 2015, we shall order the Re-
spondent to rescind the warning, remove from its files
any references to the warning, and notify Galle in writing
that this has been done and that the warning will not be
used against him in any way.
Having found that the Respondent violated Section
8(a)(3) and (1) by discharging Galle, we shall order the
Respondent to offer him full reinstatement to his former
job or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed, and to
make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). In accord-
ance with our recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), we shall also order the Respondent
to compensate Galle for his search-for-work and interim
employment expenses regardless of whether those ex-
penses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated sepa-
rately from taxable net backpay, with interest at the rate
prescribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra.6
Additionally, the Respondent shall be required to com-
pensate Galle for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and to file with the
Regional Director for Region 25, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to
the appropriate calendar years. AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016). Finally, we shall order
the Respondent to remove from its files any reference to
Galle’s unlawful discharge and to notify him in writing
that this has been done and that the unlawful discharge
will not be used against him in any way.
We will allow the Respondent to establish in compli-
ance that based on the after-acquired evidence produced
by the Respondent’s post-discharge investigation, Galle
should not be reinstated and/or that backpay should be
terminated as of the date the Respondent acquired

6 For the reasons stated in his separate opinion in King Soopers, su-
pra, slip op. at 9–16, Acting Chairman Miscimarra would adhere to the
Board’s former approach, treating search-for-work and interim em-
ployment expenses as an offset against interim earnings.
TSCHIGGFRIE PROPERTIES, LTD 3
knowledge of Galle’s misconduct.7 The Respondent
must establish that Galle engaged in misconduct for
which the Respondent would have lawfully discharged
any employee. See Berkshire Farm Center, 333 NLRB
367, 367 (2001).8
ORDER
The National Labor Relations Board orders that the
Respondent, Tschiggfrie Properties, Ltd, Dubuque, Iowa,
its officers, agents, successors, and assigns, shall
1. Cease and desist from

7 Acting Chairman Miscimarra agrees that the Respondent is entitled
to an opportunity to show, at compliance, that Galle engaged in pre-
discharge misconduct for which the Respondent would have lawfully
discharged any employee. Acting Chairman Miscimarra does not reach
or pass on whether backpay should terminate as of the date that the
misconduct occurred, the date that the Respondent discovered the mis-
conduct, or some other date, assuming hypothetically that the Respond-
ent can establish that Galle engaged in pre-discharge misconduct for
which the Respondent would have lawfully discharged him. Cf. Aero-
tek, Inc., 365 NLRB No. 2, slip op. at 9 fn. 11 (2016) (then-Member
Miscimarra, dissenting in part).
8 We agree with the judge that even assuming, arguendo, that Galle
falsely testified that he did not access websites related to his personal
business during work time on October 1, 2015, the allegedly false tes-
timony does not warrant denying Galle reinstatement and full backpay.
In addition to the factors on which the judge relied, we note that the
allegedly false testimony did not cause the Board to waste resources.
Cf. Precoat Metals, 341 NLRB 1137, 1139 (2004) (denying reinstate-
ment and backpay because the employee’s “falsehoods . . . caused the
Board to expend considerable resources pursuing an ultimately ground-
less complaint”); Toll Mfg. Co., 341 NLRB 832, 836 (2004) (denying
backpay from the period when the employee first lied under oath during
the initial unfair labor practice hearing because the employee’s “false
testimony resulted in the necessity to reopen the record and to hold the
second unfair labor practice hearing”).
Acting Chairman Miscimarra notes that, in the instant case, (i) the
General Counsel has satisfied the burden of proving that Galle’s dis-
charge occurred because of a prohibited reason, and the Employer did
not have “cause” for discharging him; and (ii) the Board defers to com-
pliance proceedings the narrow question of whether the Respondent can
establish, as an affirmative defense, that pre-discharge misconduct by
Galle—unknown to the Respondent at the time of Galle’s discharge—
would have independently resulted in Galle’s discharge had the Re-
spondent known about the misconduct. As indicated in fn. 7, supra,
this affirmative defense, if proven at compliance, would render inap-
propriate the Board’s standard remedy of reinstatement and would at
least limit the backpay remedy. Acting Chairman Miscimarra notes
that this issue is materially different from an issue presented in Total
Security Management, where the Board majority created a new type of
discipline-bargaining requirement, and then-Member Miscimarra ob-
jected to deferring the “cause” issue in all cases to the compliance
stage, even when “cause” for discharge unquestionably existed and was
known at the time of discharge. See Total Security Management Illi-
nois 1, LLC, 364 NLRB No. 106 slip op. at 19–20, 33–37 (2016) (then-
Member Miscimarra, concurring in part and dissenting in part) (Sec.
10(c) prohibits the Board from ordering reinstatement or backpay in
any case where an employee “was suspended or discharged for cause,”
and the General Counsel bears the burden of proving the absence of
“cause.”).
(a) Instructing employees to refrain from discussing
Teamsters Local 120, a/w International Brotherhood of
Teamsters (the Union) or other matters regarding repre-
sentation by the Union during work.
(b) Issuing disciplinary warnings to employees be-
cause of their support for and activities on behalf of the
Union.
(c) Discharging or otherwise discriminating against
employees for supporting the Union or any other labor
organization.
(d) Coercively interrogating employees about matters
that are the subject of unfair labor practice proceedings.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
the written warning issued to Darryl Galle on August 17,
2015.
(b) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful warn-
ing, and within 3 days thereafter, notify Darryl Galle in
writing that this has been done and that the warning will
not be used against him in any way.
(c) Within 14 days from the date of this Order, offer
Darryl Galle full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(d) Make Darryl Galle whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(e) Compensate Darryl Galle for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 25,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter, notify Darryl Galle in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its Dubuque, Iowa facility copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 25, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since August 17, 2015.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 25 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 13, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

9 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.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT instruct you to refrain from discussing
Teamsters Local 120, a/w International Brotherhood of
Teamsters (the Union) or other matters regarding repre-
sentation by the Union during work.
WE WILL NOT issue disciplinary warnings to any of
you because of your support for and activities on behalf
of the Union.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Union.
WE WILL NOT coercively question you about matters
that are the subject of unfair labor practice proceedings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the written warning issued to Darryl Galle
on August 17, 2015.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warning issued to Darryl Galle, and WE WILL, within
3 days thereafter, notify him in writing that this has been
done and that the warning will not be used against him in
any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer Darryl Galle full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Darryl Galle whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest, and WE WILL
also make Galle whole for reasonable search-for-work
and interim employment expenses, plus interest.
TSCHIGGFRIE PROPERTIES, LTD 5
WE WILL compensate Darryl Galle for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 25, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Darryl Galle, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
TSCHIGGFRIE PROPERTIES, LTD
The Board’s decision can be found at
www.nlrb.gov/case/25-CA-161304 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Derek Johnson, Esq., for the General Counsel.
Davin Curtiss Esq. (O’Connor & Thomas, P.C), of Dubuque,
Iowa, for the Respondent.
Kyle A. McCoy, Esq. (Soldon Law Firm), of Middleton, Wis-
consin, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. The Re-
spondent did it backwards, discharging a known union supporter
and then investigating. Previously, the Respondent had warned
this employee, in writing, not to discuss the union with other
workers. Evidence obtained after the discharge neither can rebut
the inference that antiunion animus was a substantial motivating
factor nor establish that the Respondent would have fired the em-
ployee anyway, even if he had not led a successful union organiz-
ing campaign.
Procedural History
This case began on October 5, 2015, when the Union, Team-
sters Local 120, affiliated with International Brotherhood of
Teamsters, filed an unfair labor practice charge against the Re-
spondent, Tschiggfrie Properties, Ltd., with Region 25 of the Na-
tional Labor Relations Board, which docketed the charge as Case
25–CA–161304. The Union amended this charge on January 12,
2016.
On January 28, 2016, the Acting Regional Director for Region
25 issued a complaint and notice of hearing, referred to below
simply as the complaint. In doing so, she acted on behalf of, and
pursuant to authority delegated by, the Board’s General Counsel.
Respondent filed its answer on February 22, 2016.
On April 14, 2016, a hearing opened before me in Dubuque,
Iowa. The parties finished presenting evidence on April 15, 2016,
and I adjourned the hearing. On May 27, 2016, it resumed by
conference call, counsel presented oral arguments, and then the
hearing closed.
Admitted Allegations
The Respondent admitted a number of allegations in its answer
or by stipulation at the hearing. Based on those admissions, I find
that the General Counsel has proven the allegations raised in com-
plaint paragraphs 1(a), 1(b), 2(a), 2(b), 2(c), 3, 4, and 5(b).
More specifically, I find that the Union filed and served the
charge and amended charge as alleged in complaint paragraphs
1(a) and 1(b).
Further, I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
National Labor Relations Act. Additionally, I find that the Re-
spondent meets all relevant standards for assertion of the Board’s
jurisdiction.
Additionally, I find that Respondent’s president, Ed Tschig-
gfrie, and his son, Rodney Tschiggfrie, who is Respondent’s gen-
eral manager, are supervisors and agents of the Respondent within
the meaning of Section 2(11) and (13) of the Act.
Further, I find that, at all material times, the Union was a labor
organization within the meaning of Section 2(5) of the Act.
Respondent has admitted, and I find, that on about October 1,
2015, it discharged its employee Darryl Galle. The Respondent
has denied that it did so because Galle had formed, joined, or
assisted the Union and had engaged in concerted activities, and to
discourage employees from engaging in these activities. It also
denied that it had violated the Act. These allegations will be dis-
cussed below.
Disputed Allegations
Mechanics employed by the Respondent, Tschiggfrie Proper-
ties, Ltd., repair and maintain trucks owned by another related
business, Tschiggfrie Excavating. In the spring of 2015, the Un-
ion began an organizing drive. On April 22, 2015, it filed a repre-
sentation petition, which the Board docketed as Case 25–RC–
150678. The Respondent entered into an election agreement with
the Union. On May 13, 2015, Respondent’s employees voted in a
Board-conducted election which the Union won.
Mechanic Darryl Galle served as the Union’s observer during
that election. However, the Respondent knew about Galle’s union
activities even earlier. By mistake, the Union had placed Galle’s
name on the representation petition it had filed on April 22, 2015.
The Union had listed Galle on the petition as the management
representative to contact, so when the Board sent a copy of the
petition to the Respondent, the envelope bore Galle’s name.
General Manager Rodney Tschiggfrie testified that, after the
election, at least two employees complained to him that Galle was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
speaking to them about the union. Tschiggfrie mentioned these
complaints to the attorney Respondent had hired to negotiate with
the Union. The lawyer, Denis Reed, brought up this matter in a
telephone conversation with Union Business Agent Kevin Saylor.
Reed also mentioned it in a May 20, 2015 email to Saylor. The
email stated:
I have forwarded the Tschiggfrie Properties benefit structure
as you asked.
Please speak to Darryl Galle as he continues to harass other
employees on company time. If it doesn’t stop I will recom-
mend steps be taken.
Although Saylor was “pretty sure” he spoke with Galle about
this matter, he could not recall a specific conversation and neither
could Galle. In any event, the record indicates that the complain-
ing employees complained further about Galle. In response, man-
agement issued Galle a warning which the complaint alleges to be
an unfair labor practice.
Complaint Paragraphs 5 and 6(a)
Complaint paragraph 5 alleges that, about August 17, 2015, the
Respondent instructed employees not to discuss the Union during
work. Complaint paragraph 6(a) alleges that, about August 17,
2015, the Respondent issued to Galle a written disciplinary warn-
ing. Complaint paragraph 6(c) alleges that the Respondent took
this action because Galle formed, joined and assisted the Union
and engaged in concerted activities, and to discourage other em-
ployees from doing so.
The Respondent denies these allegations. It also denies the
conclusions, alleged in complaint paragraphs 7 and 8, that it there-
by violated the Act.
Both complaint paragraphs 5 and 6(a) refer to a written warning
issued to Galle on August 17, 2015, and signed by the Respond-
ent’s president, Ed Tschiggfrie. The warning stated:
This is an official notice of written warning for discussing un-
ion organizational viewpoints with fellow employees during
work. This matter will stop immediately.
Based on the credited testimony of General Manager Rodney
Tschiggfrie, I find that his father made the decision to issue the
discipline at a meeting with the Respondent’s attorney, Denis
Reed. General Manager Tschiggfrie also attended this meeting.
Section 8(a)(1) makes it unlawful for an employer “to interfere
with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7” of the Act. 29 U.S.C. ’ 158(a)(1). Sec-
tion 7 of the Act grants employees the “right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection,” and also “the right to refrain
from any or all of such activities… ”29 U.S.C. ’ 157.
To determine whether a manager’s statement interferes with,
restrains or coerces employees in the exercise of Section 7 rights,
the Board considers the effect the statement reasonably would
have on an employee under the totality of circumstances present.
This objective standard does not turn on the effect the statement
actually had on a particular employee but rather focuses on the
effect such a statement reasonably would have on a typical em-
ployee. El Paso Electric Co., 350 NLRB 151, 152 (2007), Sunny-
side Home Care Project, 308 NLRB 346 fn. 1 (1992).
The Respondent did not prohibit its employees from discussing
other topics during their working time. It had no rule that em-
ployees refrain from talking with each other while “on the clock.”1
Employees reasonably would understand the August 17, 2015
letter, prohibiting discussion of “union organizational viewpoints”
but not other matters, as a warning that employees would be sub-
ject to discipline for exercising their Section 7 rights. It therefore
reasonably would chill the exercise of those rights and violates
Section 8(a)(1) of the Act. Teledyne Advanced Materials, 332
NLRB 539 (2000).
Complaint paragraphs 6(a) and 6(c) allege that this same state-
ment constitutes discrimination unlawful under Section 8(a)(3) of
the Act. If the warning had identified the prohibited conduct as
having discussions with other employees during working time, it
would be necessary to examine other evidence to determine what
had motivated the Respondent to issue it. However, the warning
itself identified the disfavored conduct as “discussing union organ-
izational viewpoints with fellow employees during work.”
In the absence of any work rule categorically prohibiting em-
ployee discussions of any sort during working time, there can be
no doubt that prohibiting union-related discussions constitutes
discrimination based on protected activity. Therefore, it is not
necessary to perform the type of analysis needed when a discipli-
nary action arises from mixed motives or where an employer’s
asserted reason for the discipline might be a pretext.
On its face, the August 17, 2015 warning letter constitutes dis-
crimination for engaging in protected activity. The record reveals
no reason to believe that Galle had engaged in any misconduct
that would strip him of the Act’s protection and I find that he did
not. Therefore, I conclude that the Respondent’s issuance of this
letter violated Section 8(a)(3).
The letter also prohibits the employee from engaging in similar
protected activity in the future. (“This matter will stop immediate-
ly.”) This prohibition interferes with, restrains and coerces em-
ployees in the exercise of Section 7 rights, and constitutes an in-
dependent violation of Section 8(a)(1).
In sum, I recommend that the Board find that the Respondent
violated Section 8(a)(1) of the Act by the conduct alleged in com-
plaint paragraphs 5 and 6(a), and that it violated Section 8(a)(3) by
the conduct alleged in paragraph 6(a).
Complaint Paragraph 6(b)
Complaint paragraph 6(b) alleges that about October 1, 2015,
the Respondent discharged employee Darryl Galle. Complaint
paragraph 6(c) alleges that Respondent did so because Galle had
formed, joined and assisted the Union and had engaged in protect-
ed activities, discourage other employees from engaging in such

1 Respondent’s General Manager, Rodney Tschiggfrie, testified, in
part, as follows:
Q. BY Mr. JOHNSON: Now, I want to check, Mr. Tschiggfrie, there
is no rule that the Company has now as to what employees can discuss
while they are at work, is there?
A. Correct.
Q. So employees are free to talk about the weather or how the Haw-
keyes are doing; is that correct?
A. That is correct.
TSCHIGGFRIE PROPERTIES, LTD 7
activities. Complaint paragraphs 7 and 8 allege that the discharge
violated, respectively, Section 8(a)(1) and (3) of the Act.
In its answer, the Respondent admits discharging Galle on
about October 1, 2015, but “denies said termination was related to
any concerted or protected activities or to otherwise discourage
the exercise of same.” The Respondent also denies that the dis-
charge violated the Act.
General Manager Tschiggfrie testified that on the morning of
October 1, 2015, he was looking for Galle in connection with a
repair. Galle was working on a piece of equipment. Tschiggfrie
went to a backroom where, he believed, he would find Galle
working on the equipment. Galle was not there, but Tschiggfrie
saw two laptop computers sitting on the counter.
To repair heavy equipment, a mechanic sometimes must trans-
mit data from the equipment’s onboard computer to a diagnostic
website. To allow mechanics to access the Internet, the Respond-
ent has established a Wi-Fi system protected by a firewall. The
Respondent provides laptops for the mechanics to use, but also
allows them to bring in their own computers, if they wish.
Tschiggfrie believed that one of the computers on the counter
belonged to the Respondent and that the other belonged to Galle.
Tschiggfrie looked at the screen of the laptop he believed to be
Galle’s. On the screen, he saw a website called “QuickFun-
nels.com” and tabs for other webpages that apparently had been
accessed but were not then being displayed. These tabs bore the
names “GoGoDropShip.com,” “Thunderball Marketing, Inc.” and
“Traffic Authority E-mail prof.” Mechanics would not visit any
of these four websites in connection with their job duties.
Tschiggfrie photographed the computer screen. He then con-
tinued to look for Galle until realizing that it was breaktime.
A brief time later, Tschiggfrie, accompanied by the Office
Manager, Ty Malcolm, returned to the room and found Galle
there. He recorded the ensuing conversation with Galle, which
began as follows:
Mr. TSCHIGGFRIE: Darryl, is this your laptop over here, or
is this the Company’s?
Mr. GALLE: No, it’s mine.
Mr. TSCHIGGFRIE: Okay, were you on this before break?
Mr. GALLE: Off and on, yeah.
Mr. TSCHIGGFRIE: Okay.
Mr. GALLE: Just so you’re aware, I don’t take all of the pag-
es down. I just put it into sleep.
Mr. TSCHIGGFRIE: I just walked into this room about ten
minutes ago, Darryl, and this page was up. The computer
wasn’t even sleeping, and just so you know, I photographed
this, and it appears, Darryl -- and I’m recording this conversa-
tion, Darryl.
It appears that you are doing something else, other than what
you’re getting paid for. Is that pretty accurate?
Mr. GALLE: No, it’s not.
Mr. TSCHIGGFRIE: So, what were you doing on this com-
puter, looking at this stuff here, when I am hired to pay you to
work on a transmission?
Mr. GALLE: Getting the information because this transmis-
sion -- because you don’t have the manual for it.
Mr. TSCHIGGFRIE: Darryl, this is the page that is up, and let
me read it out loud here. It was -- I scrolled just a little bit. I
am sorry about this.
‘Part 2, the Automatic Authority Formula,’ it says, ‘The Au-
tomatic Authority Formula is the art of using a well-designed
welcome e-mail sequence over the first five to seven days.’
It sounds like some kind of a business plan or something else,
other than what we would want to have at Tschiggfrie Exca-
vating.
I think your first response is pretty accurate, that you’re on
your computer here prior to work -- prior to break time here.
Do you have anything else to say?
Mr. GALLE: I was looking for information on that transmis-
sion.
Mr. TSCHIGGFRIE: There’s another laptop right here. Who
owns this laptop?
Mr. GALLE: That’s yours.
Mr. TSCHIGGFRIE: Okay. Well, you know what? Darryl,
as of this moment, you are terminated.
And what I’ll do is I’m going to take this computer --
Mr. GALLE: No, you’re not taking that computer.
Mr. TSCHIGGFRIE: Yeah, I have a right. You are using it
during my company time. That computer is my property as of
right now, and you’re --
Mr. GALLE: No, you’re not --
Mr. TSCHIGGFRIE: Darryl, okay. You’re terminated right
now for not cooperating with what I’m asking you to do.
Galle unplugged his laptop and would not let Tschiggfrie have
it. After Galle left, Tschiggfrie asked an information technology
specialist, Victor Mowery, to visit the Respondent’s facility to
investigate.
Although Mowery did not have access to Galle’s laptop, the
Respondent’s firewall recorded information about computers
using the Respondent’s Wi-Fi system to contact the Internet. This
information included the Internet address of each website visited
and a number uniquely identifying the computer which had ac-
cessed a particular website. Mowery concluded that Galle’s com-
puter had visited websites unrelated to the websites which me-
chanics used to perform their work.
Obviously, the information provided by Mowery could not
have influenced Tschiggfrie’s decision to discharge Galle because
Tschiggfrie did not obtain this information until after the dis-
charge. However, Mowery’s testimony is relevant to Galle’s
credibility as a witness because Galle expressly denied that he had
used his computer, during working time, to visit websites unrelat-
ed to work. In essence, Galle testified that he had used his laptop
at home to visit certain websites before coming to work, and that
those websites remained on the computer screen. Galle explained
as follows why his laptop had displayed the “QuickFunnels.com”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
webpage while he was at work:
Q. Okay. And the webpage, or the page that was up on your
computer, did you recognize that page?
A. Yes.
Q. And how do you -- why do you recognize that page?
A. When I use my computer, I’ll open several screens and I
don’t normally take them all down. My wife and I were in the
process of setting up a business at home, and I didn’t take all of
the screens down, and I told Rod that, and you know, the screens
are up.
Q. And so --so that page is one of the screens that was up?
A. Yes.
Q. Okay. Had you reviewed that page while you were at work
that morning?
A. Not on company time, no.
Mowery’s testimony, based on records from the Respondent’s
firewall, casts serious doubt on Galle’s claim that he had not ac-
cessed the “QuickFunnels.com” website at work. According to
Mowery, Respondent’s firewall records show that a computer
using Respondent’s Wi-Fi visited that website at 9:06 a.m. on
October 1, 2015. Mowery testified that this computer had used
the host name “Darryls.”
The Board’s Rules do not provide for routine pretrial discovery
in unfair labor practice proceedings and there was no such discov-
ery in the present case. Galle testified before Mowery took the
stand and therefore would not have known that Mowery would
provide evidence inconsistent with his denial. Moreover, the
government did not recall Galle to offer rebuttal testimony.
Mowery’s testimony became quite technical at times, but that
does not make it sacrosanct. Possibly, a competing expert might
have pointed out flaws in Mowery’s analysis of the firewall logs,
but no competing expert testified. My personal experience with
computers does not lead me to believe these machines are infalli-
ble, but the present record does not provide any obvious, specific
ground which would call into question Mowery’s interpretation of
the firewall data.
Therefore, it would appear likely that, contrary to his testimony,
Galle did use Respondent’s Wi-Fi to access websites unrelated to
his job duties. Therefore, where Galle’s testimony conflicts with
other evidence, I do not credit it. However, the case does not turn
on the reliability of Galle’s testimony.
In determining whether Respondent violated Section 8(a)(3) of
the Act when it discharged Galle, I follow the framework the
Board established by Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Under the Wright Line test, the General
Counsel has the initial burden of establishing that employees’
union activity was a motivating factor in the Respondent’s taking
action against them. The General Counsel meets that burden by
proving union activity on the part of employees, employer
knowledge of that activity, and antiunion animus on the part of the
employer. See Willamette Industries, 341 NLRB 560, 562 (2004).
If the General Counsel makes this initial showing, the burden then
shifts to the Respondent to prove as an affirmative defense that it
would have taken the same action even if the employees had not
engaged in protected activity. Id. at 563; Manno Electric, 321
NLRB 278, 280 fn. 12 (1996). See El Paso Electric Co., 350
NLRB 151 (2007).
Here, evidence independent of Galle’s testimony suffices to
carry the General Counsel’s initial burden. The record establishes
that Galle engaged in union activity: He started the union organiz-
ing campaign by contacting the Union and served as the Union’s
observer during the election. The Respondent admitted knowing
that Galle supported the Union. Moreover, the August 17, 2015
“official notice of written warning for discussing union organiza-
tional viewpoints with fellow employees during work” establishes
the presence of antiunion animus.2
The burden of proceeding therefore shifts to the Respondent,
which must present evidence showing that, when management
considered whether to fire Galle, the presence of animus did not
tip the balance in favor of discharge. See North Fork Services
Joint Venture, 346 NLRB 1025 (2006), citing Manno Electric,
321 NLRB 278, 280 fn. 12 (1996).
Carrying this substantial burden requires more than showing
that some reason existed which might justify the discharge. To
establish this affirmative defense, “[a]n employer cannot simply
present a legitimate reason for its action but must persuade by a
preponderance of the evidence that the same action would have
taken place even in the absence of the protected activity.” W. F.
Bolin Co., 311 NLRB 1118, 1119 (1993), petition for review de-
nied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th
Cir. 1996).
In Lampi LLC, 327 NLRB 222 (1998), the Board stated that in
assessing whether a respondent has established this defense, “we
do not rely on our views of what conduct should merit discharge.
Rather we look to the Respondent’s own documentation regarding
[the alleged discriminatee’s] conduct, to its “Personnel Policy”
handbook, and to the evidence of how it treated other employees
with recorded incidents of discipline.” 327 NLRB at 222–223.
However, if a respondent offers a pretextual reason for dis-
charging an employee, that falsehood dooms the respondent’s
rebuttal evidence to fail. Rood Trucking Co., 342 NLRB 895, 898
(2004). Here, the General Counsel argues that the Respondent’s
asserted reason is a pretext, and that its evidence should not be
considered. I disagree.
If anything, this Respondent displays symptoms of candor.
Typically, an employer bent on subterfuge does not give a worker
a letter stating that it is a “written warning for discussing union
organizational viewpoints with fellow employees.”
The circumstances surrounding the discharge suggest almost an
impulsive, spur-of-the-moment decision, not a careful plot to con-
ceal discrimination behind a crafted pretext. For months, employ-

2 The Respondent notes that the August 17, 2015 warning letter was
signed by the Respondent’s president, Ed Tschiggfrie, and not by Gen-
eral Manager Rodney Tschiggfrie, who made the decision to discharge
Galle. However, to prove animus sufficient to carry the government’s
initial burden, the General Counsel does not have to prove a connection
between the antiunion animus and the specific adverse employment
action. Lubertyville Toyota, 360 NLRB No. 141, slip op. at 4, fn. 10
(July 9, 2014); Nichols Aluminum, LLC 361 NLRB No. 22, slip op. at
3, fn. 7 (August 18, 2014). Additionally, President Ed Tschiggfrie
made the decision to issue the discipline during a meeting with General
Manager Rodney Tschiggfrie and the Respondent’s attorney, Denis
Reed.
TSCHIGGFRIE PROPERTIES, LTD 9
ees had been complaining about Galle to General Manager
Tschiggfrie. Some of these complaints had concerned Galle
sleeping on the job, which resulted in other employees having a
heavier workload.
When Tschiggfrie asked Galle whether he had been sleeping on
the job, Galle replied that he was taking medicine which made
him drowsy. Although Galle then provided Tschiggfrie with a
slip from his doctor, Tschiggfrie asked for further documentation,
which Galle said he would furnish. However, Tschiggfrie never
received it.
On October 1, 2015, Tschiggfrie saw Galle’s computer screen
and concluded that he was visiting websites unrelated to his job
during working hours. Galle explained that he and his wife had
started a business and the websites were related to that business.
However, Galle’s involvement in another business raised another
possibility, that this outside work made Galle so tired that he fell
asleep on the job.
In these circumstances, it appears likely that mixed motives
lead Tschiggfrie to discharge Galle. Therefore, Respondent’s
evidence should be considered to determine whether it would have
made the same decision even if Galle had not engaged in protect-
ed activity.
As noted above, Wright Line and its progeny require the Re-
spondent to present specific evidence. In particular, how an em-
ployer treated similarly situated employees in the past gives a
good indication how it would have treated an alleged discrimi-
natee in the absence of protected activity. However, it is not the
law that an employer can prevail only by showing prior identical
misconduct and discipline. Sara Lee d/b/a International Baking
Co., 348 NLRB 1133 (2006).
The Respondent’s employee complement falls between 5 and 8.
With so few employees, it would be unlikely to find a past in-
stance when the Respondent disciplined an employee whose con-
duct resembled Galle’s except for the protected activity. There-
fore, I draw no conclusion from the absence of evidence regarding
the Respondent’s treatment of a similarly-situated employee.
However, the Respondent also did not establish that it had any
rule prohibiting employees from visiting nonjob-related websites
during working time.
Neither the Act nor the Board has set any standards concerning
what conduct is sufficient to warrant discharge. The Board’s
concern extends only to whether antiunion animus, or animus
arising out of an employee’s protected activities, affected the deci-
sion-making process and, if so, whether it affected the outcome.
In other words, the Board does not judge a particular discipli-
nary action based on some abstract notion of “fairness.” Howev-
er, if the severity of the discipline seems disproportionate to the
gravity of the offense, it is appropriate to wonder whether some
other factor, besides the offense, has affected the weighing of
transgression versus punishment. If antiunion animus exists, it
could be the “dark matter” on the scales.
Here, General Manager Tschiggfrie decided to discharge Galle
after concluding that Galle had visited websites unrelated to his
job during working time. The record does not establish that the
Respondent had any rule which required employees to visit only
those websites necessary for their work. There also is no evidence
that Respondent ever told Galle not to visit websites unrelated to
work during working time. Under these circumstances, the deci-
sion to discharge rather than to suspend or warn Galle seems harsh
enough to raise the suspicion that some other factor affected the
decision.
However, the Respondent characterizes Galle’s misconduct not
as wasting company time but as stealing it. Moreover, the Re-
spondent argues, this was not the first time Galle had stolen com-
pany time. Earlier, he had been sleeping on the job. Thus, during
oral argument, Respondent’s counsel stated that the discharge
decision rested on more than the websites Galle had visited when
he should have been working:
[W]ebsiteusage. . .wasn’t the only thing that he did a lot on
the job. Mr. Tschiggfrie at the time he terminated Mr. Galle,
would have also had in his state of mind and present in his
thoughts, the other theft of time that Mr. Galle engaged in,
that is sleeping on the job. The record is replete with exam-
ples of it. He slept -- he was observed sleeping in the back of
a blue Ford pickup truck, in the bathroom, in the shop, in -- in
a truck -- underneath a bridge in a truck just down the road
from the shop; that’s at Transcript Page 306. He was caught
sleeping by his computer on a couple of occasions. He was
caught sleeping in the office at his desk. He was caught
sleeping at Bob Ben’s desk in his chair. He was caught doz-
ing off while working on a truck while he was actually talking
to Bill Kane. Those references are at Transcript Page 333.
Mr. Tschiggfrie also observed Mr. Galle sleeping on the job,
and not only that, Your Honor, Darryl Galle himself admitted
to dozing off on the job at least once a week during the sum-
mer of 2015.
When Tschiggfrie had confronted Galle about sleeping on the
job, Galle had replied that prescription medication made him
drowsy and later provided a note from his doctor. Tschiggfrie
asked for more documentation but never received it. Then, it
appears, he dropped the matter.
Tschiggfrie’s testimony indicates that the problem with Galle
falling asleep at work arose in June 2015, and perhaps continued
into July. The fact that Tschiggfrie took no action after asking
Galle for documentation suggests that Galle no longer fell asleep
at work. If the problem had persisted into August or September,
presumably Tschiggfrie would have suspended Galle, or given
him another warning, or at least have insisted that Galle furnish
the documentation Tschiggfrie had requested.
Certainly, some of Galle’s coworkers did not like him and
complained to management about him. If Galle had continued to
sleep on the job, they likely would have made further complaints.
Tschiggfrie’s inaction suggests either that there were no further
complaints about Galle sleeping on the job or that Tschiggfrie did
not consider the matter serious enough to warrant discipline.
Galle did receive a written warning on August 17, 2015, but
this warning said nothing about sleeping on the job. Instead, it
cautioned him not to discuss “union organizational viewpoints
with fellow employees during work.”
It is logical to assume that, in general, an employer will be
more likely to impose discipline for conduct which is of greater
concern and will be less likely to discipline for conduct of lesser
concern. Therefore, I conclude that the Respondent was more
concerned about Galle discussing the union with other workers
than about his sleeping on the job.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
This conclusion appears consistent with another fact. On Au-
gust 18, 2015, the day after Respondent issued Galle the warning
for discussing the union, the Respondent’s attorney, Denis Reed,
sent an email to Union Business Agent Saylor. It stated:
Rod has had other employees unhappy about his constant dia-
tribe. If he can’t get it out of his system and stop bothering
people at work I believe he will be subject to termination.
Reed’s testimony makes clear that “his” referred to Galle.
Thus, Reed described this document as “another e-mail from me
to Kevin, getting more forceful about trying to do something
about Mr. Galle’s efforts to disrupt—really disrupt the other em-
ployees, we thought.” The email raises the possibility that Galle
would be discharged but does not mention Galle sleeping on the
job.
The Board does not set any standards regarding how much in-
vestigation, if any an employer must conduct before discharging
an employee. However, an absence of investigation may be con-
sidered in assessing the employer’s motivation. Here, the Re-
spondent conducted scant investigation before discharging Galle
but hired a computer expert to investigate afterwards.
This sequence of events, discharging Galle and then conducting
the investigation, is relevant to an argument Respondent raised
concerning Galle’s refusal to turn his personal computer over to
the general manager when Tschiggfrie asked for it. During cross-
examination, the Respondent questioned Galle about this refusal.
Galle’s explanation, that he did not give the laptop to Tschiggfrie
because he had already been discharged, accords with the audio
recording which Tschiggfrie made at the time. Thus, the portion
of that recording quoted above includes the following:
Mr. TSCHIGGFRIE: Okay. Well, you know what? Darryl,
as of this moment, you are terminated.
And what I’ll do is I’m going to take this computer --
Mr. GALLE: No, you’re not taking that computer.
A further portion of the recording, not excerpted above, estab-
lishes that Tschiggfrie persisted in asking Galle to turn over his
computer for forensic examination even after he told Galle that he
was discharged:
Mr. GALLE: I’m not leaving my computer here for
you to do whatever you want with.
Mr. TSCHIGGFRIE: No, you can stand right here.
I’m going to have a computer forensic -- now, listen to me.
I’m going to have a computer forensic technician come
here and look at that and see how much you’re on that
computer and that website. Is that fair?
Mr. GALLE: You already said I was terminated.
Mr. TSCHIGGFRIE: My question is, is that fair? And
you are terminated.
Galle owned the laptop in question. Galle’s refusal to turn it
over to the man who had just fired him is the reaction I would
expect from someone with a proud and assertive personality. This
refusal may well reflect annoyance at being summarily discharged
rather than any intent to conceal the information on the computer.
Therefore, I draw no inference from the refusal.
The Respondent raises a further argument because the comput-
er no longer was in Galle’s possession at the time of hearing.
Galle testified that he had sent the laptop to a “forensic person” in
Arizona. On further questioning, Galle identified the “forensic
person” as his uncle. During oral argument, the Respondent char-
acterized Galle’s action as spoliation of evidence:
But, Your Honor, most insidious in this case is that neither
Local 120, nor the Field Agent or Office of General Counsel
of the NLRB ever asked Mr. Galle to preserve the laptop or
his browser history as evidence, and the Respondent, Your
Honor, expressly requests that the Court make an express
finding that Darryl Galle and the Local Union and the NLRB
failed to preserve the evidence, and enter a spoliation eviden-
tiary finding that the browser history, if it had been preserved
appropriately, would confirm, one, what Rod Tschiggfrie saw
on the morning of October 1, 2015, demonstrated that Mr.
Galle was using personal paid --paid company time to pursue
his own personal business interests; two, that the findings of
Victor Mowery would have been substantiated by Mr. Galle’s
own computer to establish a finding of actual misconduct.
Galle’s rather vague description of what his uncle would be do-
ing with the laptop does raise some suspicions about his motive.
Nonetheless, I am somewhat skeptical that the present record
would suffice to establish spoliation should I consider and resolve
the issue at this point. The Respondent asserts that neither the
Union nor the General Counsel told Galle to preserve the laptop
and the record does not establish that he otherwise had notice to
do so. However, I need not decide this question now because the
answer would not affect the outcome.
Here, I must determine whether General Manager Tschiggfrie
would have decided to discharge Galle if there had been no pro-
tected activity. If Galle had not gone to the Union to start the
organizing drive, if he had not spoken with other employees urg-
ing them to support and vote for the Union, if he had not served as
union observer, and if he had not continued to promote the Union
after the election, would Tschiggfrie still have fired him?
No information on Galle’s laptop could answer or even help
answer that question. Tschiggfrie did not know what was on the
computer’s hard drive at the time he discharged Galle, so whatev-
er that data might reveal could not have affected the decision.
Tschiggfrie had seen the laptop’s screen and taken a photograph
of it before discharging Galle, so what he saw on the screen could
have influenced his decision. However, he did not probe deeper
into the computer, so the information he might have found on the
hard drive is not relevant.
Similarly, the information which the computer expert, Mowery,
later obtained from the Respondent’s firewall could not have af-
fected the discharge decision because Tschiggfrie did not know
that information when he decided to discharge Galle. The com-
puter expert’s testimony is indeed relevant to the issue of Galle’s
credibility as a witness because it casts doubt on Galle’s denial
that he had visited certain websites while at work. However, I
have not considered Mowery’s testimony in determining Tschig-
gfrie’s motivation because it is not relevant to that inquiry.
If Galle sent his laptop to his uncle to make the information on
it inaccessible during the hearing, such an action might be relevant
in determining the remedy but the issue which must be decided
TSCHIGGFRIE PROPERTIES, LTD 11
now concerns liability. Therefore, the spoliation issue may be
deferred until the compliance stage.
As stated above, in considering a respondent’s defense, the
Board looks to the respondent’s own documentation concerning
the discharged employee’s conduct, to the respondent’s personnel
policy handbook, and to how the respondent treated other em-
ployees with recorded incidents of discipline. The Respondent
has not presented such evidence sufficient to carry its burden.
With respect to evidence concerning Galle’s conduct, the only
documentation consists of the August 17, 2015 written warning
for discussing the union with other employees, and two emails the
Respondent’s attorney sent to the Union’s business agents. These
documents say nothing about Respondent’s claimed reasons for
discharging Galle, namely that he stole time by sleeping on the job
and by working on his own Internet-related business instead of
performing his assigned duties.
With respect to the Respondent’s personnel policy, the Re-
spondent does not have an employee handbook. Moreover, it has
no rule prohibiting employee discussions during working time.
With respect to the Respondent’s past treatment of employees,
the Respondent did not present any evidence that it had dealt with
other employees in a similar manner for conduct similar to Gal-
le’s. In view of the small employee compliment, it seems unlikely
that there would be any such past incidents.
In other respects, the Respondent has not carried its burden of
showing that it would have treated Galle in the same way even if
he had not engaged in protected activities. Therefore, I recom-
mend that the Board find that the Respondent violated the Act, as
alleged in the complaint, by discharging Galle.
The Johnnie’s Poultry Issues
During the hearing, the General Counsel moved to amend the
complaint to allege that while preparing its defense in this case,
the Respondent had violated Section 8(a)(1) of the Act by ques-
tioning employees without giving them the assurances specified in
Johnnie’s Poultry Co., 146 NLRB 770, 774–776 (1964), enf.
denied 344 F.2d 617, 619 (8th Cir. 1965).
In Johnnie’s Poultry, the Board set forth safeguards to reduce
the possibility that an employer, while questioning an employee in
preparation for a trial or hearing, might interfere with, restrain or
coerce employees in the exercise of their Section 7 rights, and
thereby violate Section 8(a)(1) of the Act. Before asking the em-
ployee any questions, the employer must (1) inform the employee
of the purpose of the questioning; (2) assure the employee that no
reprisals will take place for refusing to answer any question or for
the substance of any answer given; and (3) obtain the employee’s
participation in the interview on a voluntary basis. Johnnie’s Poul-
try, 146 NLRB at 775.3

3 Even if an employer takes these steps, the employer still must take
care not to violate the Act. The Board also stated in Johnnie’s Poultry
that the “questioning must occur in a context free from employer hostil-
ity to union organization and must not be itself coercive in nature; and
the questions must not exceed the necessities of the legitimate purpose
by prying into other union matters, eliciting information concerning an
employee’s subjective state of mind, or otherwise interfering with the
statutory rights of employees.” 146 NLRB at 775. The Board further
stated: “In defining the area of permissible inquiry, the Board has gen-
The General Counsel argues that the testimony of employees
Sam Becker and Bill Kane reveals that the Respondent’s counsel
did not comply with the Johnnie’s Poultry requirements before
interviewing them:
Both employees, Sam Becker and Bill Kane, testified that
they were interviewed by Rod Tschiggfrie and Respondent’s
attorney. Mr. Becker’s interview was several months after
Darryl Galle was discharged, and Mr. Kane’s was about a
month before the hearing, and then again the week before the
hearing. Those interviews covered a broad range of subjects
related to this Unfair Labor Practice case, and much like the
questions that were asked by the Respondent at the hearing,
which Mr. Becker testified to at Transcript Page 318, and also
specifically conversations the employees had with Darryl
about the Union and its organizing campaign.
Although the General Counsel cites Becker’s testimony on
cross-examination, the vagueness of that testimony concerns me.
For one thing, Becker could not remember whether he met with
the lawyer face-to-face or spoke with him over the telephone.
Becker’s inability to recall such a basic fact about the interview
casts doubt on the extent and reliability of his memory.
Other parts of Becker’s testimony also raise concerns. During
oral argument, the General Counsel noted some of those prob-
lems:
Mr. Becker’s testimony was wholly incredible and filled with
inconsistencies. While one minute it sounded like Darryl
[Galle] was walking around the plant hassling everybody
about the Union, and the next minute Mr. Becker indicated
that Darryl was, quote, “stay to himself and just not talk to
anybody,” end quote, and that was at Page 310 of the tran-
script.
At another point, Mr. Becker indicated that Darryl would
spend time talking to him about his computer- based business,
apparently while Darryl was staying to himself and not talk-
ing to anybody, and he would be showing him the computer
while they were sitting there at work and how his business
operated on his personal computer, but just a few moment lat-
er, Mr. Becker also volunteered that he would not even have
known how to turn on a computer, and that was again at Page
310 of the transcript. Mr. Becker even amazingly testified
that Darryl came in one morning flashing $30,000 in cash
around the shop, an amount that must have amounted to about
six months’ salary.
Becker indeed did testify that on one occasion, Galle brought a
bag with $30,000 in it to work. No other evidence corroborates
this testimony. Because of other inconsistencies in Becker’s tes-
timony, I am reluctant to suspend my disbelief.
Moreover, Becker gave nonresponsive answers to some ques-
tions. For example, on direct examination, Becker testified that he
quit his job because Galle was hassling him so much that he could
not concentrate on his work. On cross-examination, the General
Counsel asked if he had quit for another reason:

erally found coercive, and outside the ambit of privilege, interrogation
concerning statements or affidavits given to a Board agent.” Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Q. And isn’t it true that you told several of your colleagues
that you were quitting because the lights in the shop were
bothering your eyes?
A. They were supposed to be getting in but -- somewhat of
that.
Q. Okay. And that’s what you told employees was the lights
was part of the reason you were quitting?
A. No, that wasn’t because I was quitting though.
Q. But you told them the lights were bothering you?
A. They weren’t bothering me, I just couldn’t see no more.
Becker’s answers are either nonresponsive, or unintelligible, or
both. Perhaps, when Becker testified that his eyes “weren’t both-
ering me, I just couldn’t see no more,” he meant that his eyes
failed in a painless way, but that interpretation is speculative.
Moreover, even if that is what Becker meant, he did not answer
the question the General Counsel had asked.
Although a judge may credit some portions of a witness’ testi-
mony but not other parts, doing so would not be appropriate here
because there are inconsistencies even in the portion of Becker’s
testimony pertaining to the Johnnie’s Poultry allegations. Becker
initially testified that the Respondent’s attorney assured him there
would be no retaliation:
Q. Okay. And did he tell you that no actions would be taken
against you regardless of what you said?
A. Yes.
However, two questions later, Becker said the opposite:
Q. Okay. But did -- my question is did he tell you that he
wouldn’t disciple you, for example, whether you cooperated
or not?
A. No.
Q. So he didn’t talk about you know, no discipline would be
taken against you?
A. Right.
In sum, I conclude that Becker’s testimony is too flawed to
trust. Therefore, I deny the General Counsel’s motion to add a
Johnnie’s Poultry violation based on that testimony.
The General Counsel also has moved to amend the complaint
to allege Johnnie’s Poultry violations in connection with Re-
spondent’s pretrial interviews with employee William Kane.
According to Kane, the first of these meetings to place about a
month before the hearing, which would place it in mid-March
2016. Kane testified that the second meeting took place about a
week before the hearing, placing it in early April 2016.
According to Kane, on both occasions he met with General
Manager Rodney Tschiggfrie and the Respondent’s counsel,
Davin Curtiss. With respect to the mid-March meeting, Kane
testified that the general manager’s secretary called him to the
office, where Tschiggfrie introduced him to the Respondent’s
attorney:
Q. Mr. Curtiss? Okay. And so what kind of questions did
they ask about?
A. Just, you know, if I had worked with Darryl and if I had
seen him sleeping, you know, using his personal computer.
I’ve never really actually seen him on his personal computer.
I know he brought it to work and took it home every day.
But, I didn’t -- I’ve never actually seen him do anything on it,
you know?
Q. Okay. Did they also ask you questions about the Union
campaign?
A. Yeah, a few, but not a lot.
Q. But questions about -- like conversations Darryl had
about the Union?
A. Yeah. I had told them then, they didn’t ask me, but I had
told them about him calling me a snitch and stuff like that,
so --
Q. Okay. And they asked about the other kinds of harass-
ment and stuff by Darryl?
A. Yep.
Q. Okay. And kind of the questions that we talked about --
A. Uh-huh.
Q.-- about him approaching you and talking about the Union?
A. Yep.
Q. Okay. And I guess at any point during any -- I just want
to focus on the one just about a month ago, to start with, did
either Rod Tschiggfrie or the company attorney inform you,
actually tell you it was voluntary to be there?
A. Yes.
Q. They told you it was voluntary?
A. I believe so.
Q. Okay. Who was it who told you it was voluntary?
A.Well, Rod had called -- when I got called up to the office
and then he just asked me these questions, but I guess I can’t
honestly say if they told me if it was voluntary or not.
When asked whether he had received assurances that no action
would be taken against him, Kane answered, “Yeah, nothing was
brought up of that, no.”
Whether or not this interview constituted an unlawful interroga-
tion, cannot be determined by referring only to the Johnnie’s
Poultry precedent. Rather, to determine whether the interview
interfered with, restrained and coerced employees in the exercise
of Section 7 rights, in violation of Section 8(a)(1), I apply the test
developed by the Board in Rossmore House, 269 NLRB 1176
(1984), and its progeny. This framework guides an assessment of
the impact the questioning reasonably would have on employees’
willingness to exercise their Section 7 rights.
The Johnnie’s Poultry principle creates a kind of safe harbor
for trial preparation, provided that the interview adheres to its
standards. However, an otherwise lawful question does not be-
come unlawful because the Johnnie’s Poultry assurances were not
given. To take an obvious example, a manager could spend all
afternoon asking an employee about the best way to cook hotdogs
and the questions would be lawful even if the manager failed to
tell the employee the purpose of the questions, that answering was
voluntary, and that no action would be taken against him regard-
less of his answers.
So, it is appropriate to begin the analysis by focusing on wheth-
er the questions were coercive and, if so, to what extent. From
Kane’s testimony, I conclude that much of the interview con-
TSCHIGGFRIE PROPERTIES, LTD 13
cerned whether Galle was using his computer for purposes unre-
lated to his work duties and the extent to which he had slept on the
job.
When the General Counsel asked whether Tschiggfrie and
Curtiss had posed any questions about the Union, Kane replied,
“Yeah, a few, but not a lot.” When the General Counsel then
referred to “conversations Darryl had about the Union, Kane an-
swered “Yeah. I had told them then, they didn’t ask me, but I had
told them about him calling me a snitch and stuff like that. . .”
(Italics added.)
When the General Counsel asked whether any questions con-
cerned Galle “approaching you and talking about the Union” Kane
simply answered “Yep.” However, the General Counsel did not
press for details. Kane did not describe any specific question
related to the Union.
Kane’s testimony, that there were “not a lot” of questions about
the Union is quite credible because neither the general manager
nor the attorney had any reason to ask questions about the Union.
They were interviewing Kane to prepare the Respondent’s de-
fense, essentially, to search for proof that Galle had flaws totally
unrelated to his union activities. More specifically, they would
have been looking for evidence which supported the Respondent’s
defense, evidence that Galle had slept on the job and had neglect-
ed his job duties while using his computer to further his own busi-
ness.
Under Wright Line, a respondent’s defense entails showing that
factors other than union activities weighed so heavily in the deci-
sion-making process that the presence of antiunion animus would
not have affected the outcome. So, it is not surprising that the
Respondent’s general manager and counsel did not ask a lot of
questions about union activities.
From Kane’s testimony, I cannot conclude that Tschiggfrie and
Curtiss asked any specific question about union activities. At
most, the record supports a conclusion that the subject of unions
came up during the meeting. However, not every reference to a
labor organization constitutes an unlawfully coercive interroga-
tion.
It is not possible to judge the lawfulness of a question using the
Rossmore House standards without knowing what the question
was. Because the record does not establish that Tschiggfrie or
Curtiss asked any specific union-related question during the mid-
March 2016, amending the complaint to allege an unlawful inter-
rogation at that meeting would not be warranted.
Likewise, the record does not establish that Tschiggfrie or
Curtiss asked Kane any specific union-related question during the
meeting a week before the hearing. When the General Counsel
asked Kane if they “pretty much run through the same kind of
questions that you were asked this morning,” Kane answered
“Yes.”
The General Counsel bears the burden of proving that the Re-
spondent asked an employee unlawful questions about union ac-
tivities or sentiments or other protected activities. The govern-
ment does not have to elicit testimony quoting the question verba-
tim, but it must offer proof enough to reveal what information the
employee was called upon to provide. Such evidence is not pre-
sent here.
Unless the record reveals at least the gist of a question, it cannot
be determined how much, if at all, answering the question would
coerce the employee. Moreover, the Respondent would have no
way of knowing what evidence it needed to present as a defense.
In sum, I conclude that amending the complaint to allege in-
stances of unlawful interrogation would be unwarranted. There-
fore, I deny the General Counsel’s motion.
Summary
For the reasons discussed above, I find that the Respondent vio-
lated Section 8(a)(1) of the Act by the conduct described in com-
plaint paragraphs 5, 6(a) and 6(b) and violated Section 8(a)(3) of
the Act by the conduct alleged in complaint paragraphs 6(a) and
6(b).
REMEDY
Having found that the Respondent committed the unfair labor
practices alleged in the complaint, I recommend that Board order
the Respondent to take actions to remedy the violations, including
posting the Notice to Employees attached to this decision as Ap-
pendix A.
This case presents several issues concerning the most appropri-
ate remedy for the Respondent’s unfair labor practices. The Gen-
eral Counsel, of course, seeks an order requiring the Respondent
to reinstate Galle and to make him whole for all losses of earnings
he suffered because of the unlawful discrimination against him.
Such relief is typical and customary to remedy the unlawful dis-
charge of an employee.
The General Counsel also seeks additional remedial provisions.
Specifically, the government requests an order requiring that the
Respondent reimburse Galle for all search-for-work and work-
related expenses regardless of whether Galle received interim
earnings in excess of these expenses, or at all, during any given
quarter, or during the overall backpay. The government also re-
quests that the make whole remedy include “reasonable conse-
quential damages incurred as a result of the Respondents unlawful
conduct.”
The General Counsel’s request for a remedy which the Board
customarily has not ordered seeks a change in Board policy. The
judge has no authority to change Board policy. Therefore, I do
not include such additional provisions in the recommended order
below.
The customary remedy for an unlawful discharge includes both
reinstatement and backpay. However, evidence which the Re-
spondent acquired after the discharge raises some doubt about the
appropriateness of these usual remedies in the present case. Here,
reinstatement and backpay might be challenged under either of
two legal theories.
Board precedent holds that, in certain circumstances, it may de-
ny a backpay remedy to someone who has given false testimony
in the Board proceeding. In Toll Manufacturing Co., 341 NLRB
832 (2004), the Board stated that it “conducts a ‘balancing’ analy-
sis and assesses the impact of the discriminatee’s transgression on
the integrity of the Board’s processes.” The Board considers the
overall veracity of a witness’ testimony and also considers the
impact the falsehood had on the Board’s processes.
Here, I am concerned about Galle’s testimony denying that he
had accessed websites unrelated to his job duties while at the Re-
spondent’s facility. The firewall logs and the testimony of a com-
puter expert, Victor Mowery, contradict that claim and do so ra-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
ther persuasively. Therefore, to the extent that other evidence
conflicts with Galle’s testimony, I do not credit that testimony.
However, I stop short of finding that the inaccurate testimony
resulted from a lie. The firewall evidence concerning the websites
visited impresses me as being trustworthy but I still hesitate to
reach the harsh conclusion that Galle deliberately testified falsely
while under oath. Absent additional evidence of deceptive intent,
it is fair to give Galle the benefit of the doubt rather than conclude
that he committed perjury.
Moreover, regardless of whether Galle did or did not visit web-
sites unrelated to his job during working time, and even without
Galle’s testimony, I would find his discharge to be unlawful.
Evidence other than Galle’s testimony established all elements the
government needed to make its initial showing, which the Re-
spondent’s defense did not surmount.
Even assuming for the sake of analysis that Galle deliberately
gave false testimony on this one point about what websites he
visited while at work, I would not conclude that he failed to be
truthful in the rest of his testimony. For purposes of determining
Galle’s eligibility for reinstatement, Galle’s denial that he visited
certain websites during working time would fall into the category
of an “insignificant trespass on the truth” as the Board used that
term in Toll Manufacturing Co., above, citing Lincoln Hills Nurs-
ing Home, Inc., 288 NLRB 510, 512 (1988). It did not affect the
outcome of this proceeding and also did not pose a significant
threat to the integrity of the Board’s processes. Therefore, this
testimony would not, in my view, warrant denying Galle a full
backpay remedy.
However, a second legal theory also must be considered. The
information Mowery obtained by examining the firewall logs does
reveal apparent wrongdoing which might have justified Galle’s
discharge and which might make him unsuitable for future em-
ployment by the Respondent. This evidence, which the Respond-
ent acquired after Galle’s discharge, does not redeem that termina-
tion because the Respondent did not consider this evidence when
making the discharge decision. Nonetheless, information found in
the firewall logs does bear on the appropriateness of reinstatement.
It reveals that Galle was not honest with his employer. That, in
turn, calls into question the truthfulness of Galle’s explanation for
sleeping on the job, the claim that prescription medication made
him drowsy. It also raises a question of how much working time
Galle spent developing his own online business rather than per-
forming his job duties.
In McKennon v. Nashville Banner Publishing Co., 513 U.S.
352 (1995), an employee secretly violated her employer’s confi-
dential document policy. The employer did not know about this
breach when it terminated her employment but learned later, after
she sued for age discrimination. The Supreme Court held that the
misconduct made reinstatement inappropriate and that backpay
would be tolled as of the date the employer discovered the mis-
conduct. The Court further held that when an employer seeks to
rely upon after-acquired evidence of wrongdoing, it must first
establish that the wrongdoing was of such severity that the em-
ployee in fact would have been terminated on those grounds alone
had the employer known of it at the time of the discharge.
Accordingly, I recommend that the Board permit the Respond-
ent to litigate, at the compliance hearing stage, whether Galle’s
misconduct, revealed after his discharge by examination of the
firewall logs, was of such severity that he would have been dis-
charged lawfully on that basis alone had the Respondent known of
the misconduct at the time it. A determination that the Respond-
ent lawfully would have discharged Galle had it been aware of the
evidence of misconduct would also stop backpay from accumulat-
ing beyond the date Respondent discovered that evidence.
In view of this recommendation, that Respondent be allowed to
contest at the compliance stage the appropriateness of a reinstate-
ment remedy, a question arises concerning the wording of the
order recommended below. Should the recommended order in-
clude a provision that the Respondent reinstate Galle if that issue
has not yet been decided?
The recommended order and notice language below do include
the requirement that the Respondent reinstate Galle. Leaving this
customary language in the recommended order is consistent with
the Board’s practice in Somerset Valley Rehabilitation & Nursing
Center, 362 NLRB No. 113 (2015).
In its Somerset Valley decision, the Board discussed whether
the respondent should be ordered to reinstate two discriminatees,
Jacques and Wells. After a thorough analysis, the Board reached
a conclusion contrary to that of a federal district court which had
been petitioned to grant interim injunctive relief under Section
10(j) of the Act. The Board decided that the two discriminatees
should be reinstated and ordered the respondent to do so within 14
days. See 362 NLRB No. 113, slip op. at 3.
The Board’s order required the respondent to offer reinstate-
ment to the discriminatees within 14 days. The order did not spe-
cifically state that the respondent could continue to litigate the
reinstatement issue in a compliance proceeding.
When the respondent petitioned for review of the Board’s deci-
sion, and the Board cross-applied for its enforcement, it brought
the contradictory conclusions of the Board and the District Court
to the attention of the United States Court of Appeals for the Third
Circuit. However, the Board’s brief to the Circuit Court stated
that the respondent would have the opportunity to challenge the
reinstatement order at the compliance stage. See 1621 Route 22
West Operating Company, LLC, d/b/a Somerset Valley Rehabili-
tation And Nursing Center v. NLRB, ___ F.3d ____, Docket Nos.
15-2466 & 15-2586, slip op. at 38 (3rd Cir. 2016) (“The Board. .
.points out that it deferred the matter to compliance proceedings. .
.which will provide an opportunity to litigate whether this evi-
dence affects Wells’ entitlement to reinstatement and backpay.”)
The Court enforced the Board’s order.
Accordingly, I conclude that the presence of a reinstatement re-
quirement in the recommended order below would not signify a
final adjudication of the reinstatement issue and would not pre-
clude the Respondent from raising and litigating it in at the com-
pliance stage.
CONCLUSIONS OF LAW
1. The Respondent, Tschiggfrie Properties, Ltd., is an employer
engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Charging Party, Teamsters Local 120, affiliated with the
International Brotherhood of Teamsters, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by in-
structing employees not to discuss the Charging Party at work, by
TSCHIGGFRIE PROPERTIES, LTD 15
issuing a disciplinary warning to an employee because he dis-
cussed the Charging Party at work, and by discharging the em-
ployee because of his activities on behalf of the Charging Party
and to discourage other employees from engaging in such activi-
ties.
4. The Respondent violated Section 8(a)(3) of the Act by issu-
ing a disciplinary warning to an employee because he discussed
the Charging Party at work, and by discharging the employee
because he formed, and/or joined and assisted a labor organiza-
tion, including by discussing the Charging Party with other em-
ployees at work, and to discourage other employees from engag-
ing in such activities.
On these findings of fact and conclusions of law and on the en-
tire record in this case, I issue the following recommended4
ORDER
The Respondent, Tschiggfrie Properties, Ltd., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing employees not to discuss the Charging Party or
other matters regarding representation by the Union at work.
(b) Taking disciplinary action against employees because they
discussed the Charging Party or other matters regarding union
representation at work.
(c) Discharging employees because they formed, joined or as-
sisted a labor organization or engaged in other protected, concert-
ed activities, including discussing the Charging Party at work, and
to discourage other employees from engaging in such activities.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, or to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from
any and all such activities.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Within 14 days after service by the Region, post at its facili-
ties in Dubuque, Iowa, copies of the attached notice marked “Ap-
pendix A.”5 Copies of the notice, on forms provided by the Re-
gional Director for Region 25, after being signed by the Respond-
ent’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 em-
ployees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In addition to physical
posting of paper notices, noticed shall be distributed electronical-

4 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices 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.”
ly, such as by email, posting on an intranet or internet site, and/or
other electronic means, if the Respondent customarily communi-
cates with its employees by such means. J. Picini Flooring, 356
NLRB 11 (2010). In the event that, during the pendency of these
proceedings, 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 Re-
spondent at any time since August 17, 2015. Excel Container,
Inc., 325 NLRB 17 (1997).
(b) Within 14 days from the date of this Order, offer employee
Darryl Galle full reinstatement to his former position or, if his
former position no longer is available, to a substantially equivalent
position, without prejudice to seniority or any other rights or privi-
leges previously enjoyed, and make him whole, with interest, for
any loss of earnings and other benefits suffered as a result of the
discrimination against him. Backpay shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus
daily compound interest as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
(c) Within 14 days from the date of this Order, remove from its
files any reference to the unlawful discharge of Darryl Galle and,
within 3 days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him in any
way.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official on
a form provided by the Regional Director attesting to the steps that
the Respondent has taken to comply.
Dated Washington, D.C. June 24, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of these rights, guaranteed to them by Section 7 of
the National Labor Relations Act.
WE WILL NOT instruct our employees not to discuss the Union
or any matters related to representation by the Union while at
work.
WE WILL NOT issue a warning to, or take any disciplinary action
against an employee because the employee discussed the Union or
union representation at work, because the employee formed,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
joined or assisted a labor organization or engaged in protected,
concerted activities, or to discourage other employees from doing
so.
WE WILL NOT discharge any employee because the employee
discussed the Union or union representation at work, because the
employee formed, joined or assisted a labor organization or en-
gaged in protected, concerted activities, or to discourage other
employees from doing so.
WE WILL NOT, in any like or related manner, interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Darryl Galle full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position, without
prejudice to seniority or any other rights or privileges previously
enjoyed.
WE WILL make Darryl Galle whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, less any net interim earnings, plus interest.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the unlawful written warning and dis-
charge of Darryl Galle and WE WILL, within 3 days thereafter,
notify him that neither the warning nor the discharge will be used
against him in any way.
TSCHIGGFRIE PROPERTIES, LTD
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/25-CA-161304 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.