URS Energy and Construction, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 28, 2011

30-CA-018775 (N.L.R.B. Jul. 28, 2011)

JD(ATL)–19–11
Oak Creek, WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
URS ENERGY AND CONSTRUCTION, INC.
and Case 30–CA–18775
TIMOTHY PARE, An Individual
Andrew S. Collin, Esq.,
for the Acting General Counsel1
Robert H. Duffy, Esq. and Courtney R. Heeren, Esq.,
for the Respondent2
Timothy Pare, Pro se3
DECISION
STATEMENT OF THE CASE
William N. Cates, Administrative Law Judge. This is a wrongful discharge case I
heard on May 9 and 10, 2011 in Milwaukee, Wisconsin. This case originates from a charge filed
by Pare, an Individual, on October 5, and amended on November 1, 2010, against URS Energy
and Construction, Inc. (Company). On February 28, 2011, the Regional Director for Region 30
of the National Labor Relations Board (Board) issued a complaint and notice of hearing
(complaint) against the Company alleging it discriminatorily discharged Pare on October 1, 2010
because of his protected concerted and/or union activities, in violation of Section 8(a)(1) and (3)
of the National Labor Relations Act (Act).
The Company, in a timely filed answer, denied having violated the Act in any manner
alleged in the complaint.
The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. I have studied the whole record, the

1 I shall refer to counsel for the Acting General Counsel as counsel for the Government and to the Acting
General Counsel as the Government.
2 I shall refer to counsel for the Respondent as counsel for the Company and I shall refer to the Respondent
as the Company.
3 I shall refer to the Charging Party as Pare or Charging Party Pare.
JD(ATL)–19–11
2
post trial briefs, and the authorities cited therein. Based on the detailed findings and analysis
below, I conclude and find the Company violated the Act as alleged in the complaint.
FINDINGS OF FACT
5
I. JURISDICTION AND SUPERVISORY/AGENCY STATUS
The Company is a corporation with an office and place of business in Oak Creek,
Wisconsin, where it is, and has been, engaged in the business of providing engineering and
construction services at the Elm Road Generating Station, Oak Creek, Wisconsin. During the 10
past calendar year, the Company purchased and received goods and materials valued in excess of
$50,000 directly from points located outside the State of Wisconsin. The evidence establishes,
the parties admit, and I find the Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
15
It is admitted that General Foreman Lewis Yuker Jr., Operator/Temporary Foreman
Robert McKeag Jr., Superintendent Duane Steinmetz, Project Business Manager Alan Corder,
Superintendent Randy Cates, and Construction Manager Randy George are supervisors and
agents of the Company within the meaning of Section 2(11) and (13) of the Act.
20
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background25
WE Energies owns and operates a coal fired power plant on approximately 1450 acres of
land in Oak Creek, Wisconsin. Some years ago, WE Energies contracted with the Company to
construct environmental controls on the emissions side of its plant. The constructed
environmental controls perform functions similar to what a catalytic converter does for emissions 30
on an automobile. Project Manager Corder explained the Company has an agreement with
various building trades unions covering work at the Oak Creek site which agreement is known as
the General President’s project maintenance agreement. Corder further explained that one of the
unions at the site, and directly involved with the issues herein, is the International Union of
Operating Engineers Local 139 (Local 139 or Union). The President’s project maintenance 35
agreement calls for the Company to requisition workers from, in this case, Local 139 to operate
and service cranes at the Oak Creek site. General Foreman Yuker stated that for every crane
there is an operator and an oiler which together form an operating team. The Company, at
applicable times herein, utilized in addition to various cranes other types of equipment such as
tile handlers (rough terrain forklifts), hydraulic excavators, rubber tire and front end loaders. 40
Operators, as the name suggests, operates the cranes while oilers ensure the cranes have the
proper fluid levels for operation. The Company may request crane operators by name from the
Union but for oilers the Company simply requests the number needed with a requested reporting
time and Local 139 provides that number of oilers on the dates requested. Project Manager
Corder testified that pursuant to the general project maintenance agreement the Company has the 45
JD(ATL)–19–11
3
right to hire and lay off employees as, and whenever, it chooses. General Foreman Yuker has,
since 2009, supervised the crane operators and oilers. General Foreman Yuker has been a
member of Local 139 at all applicable times herein. According to Yuker, the Company utilized
approximately 30 to 35 crane operators and oilers in 2010. Pare estimated the Company, at
various times, employed approximately 750 to 1200 employees from the various building trade 5
crafts.
Pare is, and has been, a member of Local 139 for 13 years and has been employed twice
by the Company. Pare first worked for the Company as an oiler on a temporary basis starting
October 19, 2009. He was hired initially for 1 week, but actually worked until October 30, 2009 10
when the oiler he replaced returned from medical leave. Pare again worked for the Company
from March 16, to October 1, 2010. Pare worked with crane operator Mark Tomorro from
March until the third week in August 2010, and with Jason Klatt from the third week in August
until his lay off on October 1, 2010. General Foreman Yuker was Pare’s immediate supervisor
both times he worked for the Company.15
2. Government’s evidence
Pare utilizes the referral services of Local 139 for employment opportunities any time he
is out of work and specifically deals with Union Central Dispatcher Guy Yuker. Central 20
Dispatcher Guy Yuker and Company General Foreman Lewis Yuker are brothers. Pare
explained it was normal practice to notify Local 139 as soon as a member was out of work or
laid off and the member had to check in regarding his/her status monthly on the first of the
month, thereafter, from April through December. Pare said members are not notified of their
placement on the referral list unless they specifically ask. Pare testified he experienced some 25
issues obtaining work through the referral service over the past 2 years. Pare did not feel the
placement of names on the referral list was correct and that “there was some favoritism going
on.” On February 22, 2010, Pare requested, in writing, a copy of the referral procedures from
Local 139 and a current copy of the out-of-work list and indicated he wanted to be provided
weekly copies thereafter of the out-of-work list. Local 139 Business Manager Terrance E. 30
McGowan notified Pare in writing, on February 24, 2010, the requested records were available to
all members for inspection at the Union’s offices during normal business hours but Local 139 did
not distribute hard copies of its out-of-work lists nor would it provide such records on an on-
going basis. Around mid-February 2010, Pare spoke with Union Central Dispatcher Yuker about
the requested information but none was provided. Pare told Dispatcher Yuker that if nothing was 35
going to change regarding the requested information he would contact the Board.
On March 12, 2010, Pare, and two other Local 139 members, namely Fred Higgins and
Randy Heule, filed charges (Pare’s charge was Case 30–CB–5522) with the Board against Local
139 alleging the Union failed to fairly represent them by failing and refusing to provide them 40
information concerning Local 139’s hiring hall procedures and practices.
Pare attended the monthly union meeting at the Pewaukee union hall on May 12, 2010,
because Local 139 members had been telling him that the names of those filing charges against
the Union were being discussed around the state. Pare said Local 139 Business Manager 45
McGowan spoke to the estimated 130 members and union executives about certain members
JD(ATL)–19–11
4
having filed charges against Local 139. According to Pare, McGowan said the charges had
already cost Local 139 $20,000 in legal fees and that those filing the charges with the Board
should be charged because they broke their oath to the Union and broke the Union’s bylaws. A
retired business agent of the Union (David Harnath) asked for the names of those members who
went outside Local 139 with their complaints. The retired agent said it was “un-union of us,” 5
“that we should have our pensions and cards removed” and mentioned Pare’s vehicle license
plate number. Pare said there were comments from the crowd about shooting out his tires and
running him off the road. Pare said he and the two others filing charges with the Board were
later identified by name. General Foreman Yuker was present at this May 12, 2010 meeting.
10
Pare testified that at work on May 14, 2010, General Foreman Yuker told him he should
not have filed the charges against the Union. Pare did not respond.
On June 2, 2010, Pare filed an additional charge against Local 139 alleging the Union
was harassing him and threatening to expel him from the Union because of his earlier charge 15
against the Union.
Local 139 held its June monthly membership meeting on June 9, 2010. Pare said that
when he walked by General Foreman Yuker he attempted to speak with Yuker but Yuker looked
away ignoring him. During the meeting General Foreman Yuker asked Local 139 Business 20
Manager McGowan about any disposition of the Board charges. McGowan asked the members
to “take a step back” from filing internal union charges against those filing the Board charges
until Local 139 could see how the Board disposed of those charges. Following the meeting Pare
tried to speak with General Foreman Yuker but Yuker ignored him again.
25
The next day, June 10, 2010, near the end of the work day, as Pare was securing his crane
for the day, General Foreman Yuker drove to the area in a four-wheeler vehicle. Pare asked
Yuker about events at the union meeting the night before saying; “You can’t say hi to me, shake
my hand or nothing.” Pare said General Foreman Yuker answered; “I’m not going to shake your
hand.” “I’m not going to shake it until we know what the outcome of the charges are” adding, 30
“You guys broke your oath to the Union. You broke the bylaws by going outside the Union.”
“You were wrong for doing what you did.”
Pare testified that on June 28, 2010, he and his crane operator (Mark Tomorro) were at an
onsite storage area for large duct and iron pieces, when General Foreman Yuker arrived in his 35
four-wheeler and handed Pare a copy of a March 3, 2010 decision of the Seventh Circuit Court
of Appeals captioned “Edwards v. Operating Engineers Local 139, No. 09-3062.” Pare stated
that when Yuker handed him the decision he said, “this was evidence that we couldn’t be suing
the Union, that it was wrong.” Pare told Yuker it was none of Yuker’s business, walked away,
and continued his work.40
Pare testified that on July 12, 2010, General Foreman Yuker gave him at work an article
from Local 139’s newspaper captioned, “Internal Remedies Save Local 139’s Money.” Yuker
told Pare “this might be of particular interest to you.” Yuker turned away “chuckling.” Pare
made no response. Pare said General Foreman Yuker explained on July 14, 2010, why he had 45
given him the news article 2 days earlier. Yuker told Pare he should go ahead and read the
JD(ATL)–19–11
5
article because the article said Pare had no right to go outside the Union for help and in doing so
he was breaking union bylaws. Yuker urged Pare to show the article to his attorney “so they’d
understand that I can’t sue the union and that I was wrong for doing it.” Pare told Yuker this was
none of his business, that it was a matter between Pare and the Union. Pare told Yuker he was
his (Pare’s) foreman and he did what Yuker asked him without complaining, being late or 5
insubordinate, but his dealings with the Union were between he and the Union and should not be
discussed on the jobsite. Pare said Yuker “just kind of clammed up” at that point.
As a result of the content of the newspaper article General Foreman Yuker gave Pare, he
amended his charge in Case 30–CB–5569 to allege the Union’s bylaws, as outlined in the article, 10
were unlawful.
On August 3, 2010, Pare’s crane operator, Mark Tomorro, told Pare the 4100 Manitowoc
crane they worked would be going “off rent.” Pare explained that when a piece of equipment
went “off rent” it was no longer needed by the Company and shipped out. Typically when a 15
crane went “off rent” the operator and oiler left with the crane. In mid-August operator Tomorro
was reassigned from the 4100 Manitowoc crane to another crane and was replaced by operator
Jason Klatt. Pare worked as Klatt’s oiler on the 4100 Manitowoc from mid-August until he was
laid off October 1, 2010.
20
Pare testified that on September 16, 2010, General Foreman Yuker came to where he and
Klatt were working and spoke to both of them separately. Pare said that after Yuker spoke with
Klatt he came off the crane, patted Pare on the back and told him he was doing a “nice job” and
stated:
25
Hey look. The crane is going off rent. I was told to keep my two best men. You
and Jason [Klatt] are them two guys. I don’t want you telling any of the other
[Local] 139 guys out here. Keep it to yourself because I’m going to have to lay
someone else off to keep you guys on, but that’s my game plan.
30
Pare was flabbergasted and did not respond to Yuker.
Safety requirements for cranes at the jobsite calls for a swing radius around each crane.
Pare explained a swing radius around a crane was the area in which the load being lifted by the
crane could be safely set down. The swing radius changes with the weight of the load and/or the 35
angle of the crane boom. Pare said he worked extensively within the swing radius because the
Manitowoc crane was an old model that needed many adjustments and repairs with fluid leaks.
Pare was never injured working inside the swing radius; however, two onsite oilers did suffer
injuries. As a result of the two injuries the Company reexamined its policy of allowing oilers,
and others, inside the swing radius. Pare, and others, became concerned about any new rules. 40
Pare asked Union Bull Steward Art Flores about the new rules and if oilers could still work
within the swing radius. Flores told Pare oilers could still work within the swing radius
providing their operators knew they were there and they had a particular reason for being in the
swing radius.
45
JD(ATL)–19–11
6
Related to the swing radius, it is undisputed oiler David Streuly was terminated on
September 9, 2010, as a result of his being inside the swing radius on his assigned crane on
August 31, 2010, where he either “fell asleep” or “was overcome by the heat” resulting in the
crane’s counterweight striking him. Streuly’s “near-fatal” accident caused the Company, at its
highest levels of management, to review safety issues inside the swing radius and to ensure such 5
did not happen again. As a result, the Company decided no oiler should be inside the swing
radius while his/her crane was in operation. The Company terminated another oiler, Frederick
Heller, on September 22, 2010, for being inside the swing radius of his crane leaning against a
torch tank smoking a cigarette.
10
It is undisputed the Company, on September 10, requested Local 139 refer an oiler to
replace Streuly. The Union referred oiler James Kadlec as the replacement on September 13,
2010. It is likewise undisputed the Company requested an oiler from Local 139 near the end of
September and the Union referred oiler Marcus Bohn, on September 27, 2010, to replace Heller.
15
Pare testified that on September 24, 2010, General Foreman Yuker came to the cab door
of their crane and told operator Jason Klatt that “[w]e couldn’t go inside the swing area at all at
any time as long as the crane engine was running.” Pare told Yuker Union Bull Steward Flores
had told he and others something different and he wanted Yuker to know so the union steward
would not be going around the site telling the oilers something that was incorrect. General 20
Foreman Yuker told Pare he was his foeman, Flores was not, and Pare was to listen to him not
Flores.
Pare testified that approximately 15 minutes later that same day he was with oiler Frank
McCauley when General Foreman Yuker came to explain the new swing radius safely rules to 25
McCauley. Pare stepped away and when Yuker finished speaking with McCauley, Pare asked
for a few minutes of Yuker’s time. Pare asked Yuker why there was so much animosity between
them. Pare testified; “I said every time we talked it felt like we wanted to shoot each other in the
head. I said, ‘Lew, I’ve got nothing against you. You’re my foreman.’ I said, ‘I treat you like a
foreman. I never give you any grief. Why is it like that?” According to Pare, Yuker responded, 30
“What you’ve done to the Union, you’ve done to me” and “until you change that, this is the way
it’s going to be.” Pare walked away ending the conversation.
Pare testified that about mid-day on October 1, 2010, Bob McKeag, a stand-in-foreman
for General Foreman Yuker, came to Pare’s crane and told Pare; “It’s got nothing to do with me, 35
Tim.” “Don’t blame me for it” but, “Lew [Yuker] called me last night, told me to lay off you
and Bill Larson. I don’t understand why he’s doing what he’s doing, but that’s what he’s doing.”
McKeag then asked for Pare’s timecard and parking pass.
Pare spoke later that day with Company Project Manager Alan Corder about his lay off. 40
Pare told Corder he would like to file a complaint that he believed the fact that the Union’s
dispatcher and the Company’s general foreman were brothers had something to do with his lay
off. According to Pare, Corder explained the Company did not decide who was selected for lay
off just the number to be laid off that it was General Foremen Yuker who decided specifically
which individuals were laid off.45
JD(ATL)–19–11
7
After he was laid off Pare contacted Local 139 and spoke with Dispatcher Guy Yuker
about being placed on the Union’s out-of-work list. Pare has not been referred for work since
October 1, 2010. Pare said that at the time of his lay off one of his two Board charges against
Local 139 “was decided” and the other one dismissed. Pare said he never received any discipline
nor was given any appraisals while working at the Company but he had received positive 5
commentary from General Foreman Yuker.
3. Employer’s evidence
Lewis Yuker has been General Foreman for the Company at its Oak Creek Power Plant 10
Project overseeing all crane operators and oilers since January 2009. In the summer of 2010,
Yuker was responsible for approximately 30–35 operators and oilers, however, that number was
down to 22 at trial herein as the project is nearing completion. Yuker meets with the operators
and oilers each morning giving them working instructions, as well as, addressing safety issues.
While his employees operate various types of cranes, Yuker has no input regarding the types of 15
equipment brought onto the site. The Company rents and/or owns cranes at this worksite. Yuker
said he is given very little notice from higher management when a piece of equipment is going to
be added to or taken from the site. Yuker explained that when equipment is added he is simply
given enough time to request an operator and oiler from Local 139. Operators are requested by
name while oilers are requested by the number needed. Yuker testified that when a piece of 20
equipment goes “off rent,” or leaves the jobsite, the operator team (operator and oiler) leaves
with the equipment. Yuker explained that sometimes there were extenuating circumstances
where the operator might not leave with the equipment. Yuker said if an operator was highly
skilled he might recommend the operator be retained to work on other equipment and his
recommendations are followed by higher management.25
General Foreman Yuker was Pare’s immediate supervisor on both occasions Pare worked
for the Company. On each occasion Pare was referred from Local 139. Yuker is, and has been,
a member of the Union for 39 years and served 4 years as its business agent. Yuker’s wife,
brother, and nephew are also members of Local 139 with his brother currently serving as general 30
dispatcher for Local 139.
General Foreman Yuker learned in 2010 that certain members of Local 139, including
Pare, filed unfair labor practice charges against the Union regarding its referral practices. Yuker
also knew Randy Heule and Fred Higgins were the two other members that filed unfair labor 35
practice charges against Local 139. Yuker knew that former member Franklin Edmonds had, in
the past, filed “numerous charges” against the Union.
General Foreman Yuker testified he mentioned, at one of his early morning operator
meetings, that the individuals who had filed them, the current unfair labor practice charges 40
against the Union “should be given a chance to undo what they did and if they didn’t undo it
. . . charges should be filed against them . . . [and] their [union] cards [taken] away from them.”
Yuker could not recall the exact date of this meeting but stated Pare was not present.
General Foreman Yuker attended the June union meeting at Pewaukee at which the unfair 45
labor practice charges filed by Pare, Heule, and Higgins were again discussed. Yuken testified
JD(ATL)–19–11
8
“Lot of the guys weren’t too happy about it,” but the union staff said “there could be no
retaliation against these guys.”
The day following this June union meeting Yuker spoke with Pare, among others, about
“the million man-hour festivities.” The Company had recorded a million man hours without an 5
accident and the Company provided food and ice cream for its employees that day. General
Foreman Yuker said Pare “confronted” him wanting to know why he (Yuker) did not say hello to
him the night before at the union meeting. Yuker explained he had tried to say hello to Randy
Heule but Heule would not speak with him. Yuker told Pare that because he (Pare) was with
Heule and others he figured they also would not speak with him so he did not try. Yuker asked 10
Pare why he filed charges against the Union. Pare said he did not do it for himself but for the
membership. Yuker said Pare told him he had tried to get some information from the Union but
they would provide it. Yuker and Pare then talked about the proper procedure for getting such
information. Yuker told Pare the information Pare wanted was available for viewing at the union
hall. According to Yuker, Pare responded that would not be adequate for him and he would not 15
be satisfied until he was given a physical copy of the Union’s out-of-work register. At the end of
their conversation Pare asked Yuker to shake his hand. Yuker declined because, “I pick my
friends. I disagree with what he is doing. I treated him fairly while he was on the job . . . .”
General Foreman Yuker acknowledged he gave Pare, and “just about everybody on the 20
job” a copy of the Seventh Circuit Court of Appeals decision dated March 3, 2010, involving
Franklin Edmonds and Local 139, in which the court found Edmonds’ argument that Local 139
had to make its out-of-work referral list available to him, had been rejected three times and any
further like actions by Edmonds would lead to sanctions against Edmonds. Yuker said he had
been asked by Local 139 Business Agent Steve Buffalo to distribute the court decision and he 25
told Pare that “these are the findings from the court in regards to Franklin Edmonds.” At first
Yuker could not recall when he gave the decision to Pare but later stated it was June 28, 2010.
Yuker told Pare the decision was relevant because of questions about the Union’s referral
procedures. According to Yuker, Pare disagreed with what Edmonds was doing but added the
costs to the Union were irrelevant because the costs came from retainer fees.30
In the summer 2010, General Foreman Yuker gave Pare a copy of an article from Local
139’s newsletter written by the Union’s legal counsel entitled, “Internal Remedies Save Local
139’s Money.” When Yuker gave Pare the article he asked him to take a look at it but could not
recall the date he gave it to him.35
General Foreman Yuker said he spoke twice with Pare on September 24, 2010. On the
first occasion he talked to Pare and operator Jason Klatt about following the rules related to
staying out of the swing radius. Yuker testified Pare said a union steward had told him
something different. Yuker told Pare he (Yuker) was Pare’s supervisor and he was to follow his 40
instructions. Yuker described Pare as being “overbearing” in the conversation and “had to have
his say in all of these things.”
On the second occasion Yuker said he went back to Pare’s area to speak with oiler Frank
McCauley about the swing radius safety requirements. Yuker said Pare explained why he (Pare) 45
had been “so forceful in the first conversation.” Yuker said Pare was again “overbearing” and
JD(ATL)–19–11
9
added by the end of the conversation, “I was pretty annoyed with it.” Yuker told Pare to go find
something to do. Yuker specifically denied there was any discussion or mention of Pare’s
charges against the Union during this conversation.
Although he said he had heard rumors for approximately a month, General Foreman 5
Yuker testified he learned on Monday, September 27, 2010, that the crane on which Pare was an
oiler would be going “off rent” October 1, 2010. Yuker said he spoke with Pare and operator
Klatt on September 29, 2010, telling them their crane would be going “off rent” and his plan to
keep them working rather than leaving with the crane. Yuker said he slept on his decision to
keep both Pare and Klatt and decided it was not right for him to lay off an oiler (Kadlec), who 10
was assigned to another crane but was a retiree who had a pension, so he could keep Pare on the
job thus Pare was laid off on October 1, 2010.
Yuker said he provided Pare numerous opportunities to work on various assignments at
higher wages than he made as an oiler during his second tenure with the Company.15
Robert McKeag testified he filled-in for General Foreman Yuker when Yuker was absent
including October 1, 2010. Yuker told McKeag, on September 30, 2010, that Pare and oiler Bill
Larson would be laid off the next day and asked McKeag to notify them which McKeag did.
McKeag said Yuker did not tell him any reason for the lay offs. McKeag, however, explained 20
that when a machine goes “off rent” the oilers go and sometimes even the operators unless they
are retained for specific reasons. McKeag never knew of a crane going off rent without the oiler
leaving also. McKeag said when he told Pare he was being laid off Pare responded that General
Foreman Yuker had told him “a couple of days prior to that that he may have something for
him.” Pare did not tell McKeag what Yuker had said. Although Pare was laid off, Operator 25
Klatt was retained because he was a highly skilled operator.
Project Business Manager Alan Corder testified Pare came to his office late in the day
October 1, 2010, saying he did not understand why he was being laid off. Corder explained the
equipment he was an oiler on was going “off rent.” According to Corder, Pare still could not 30
understand why he was chosen. Corder asked Pare what his basis was for someone else being
laid off. Pare had no response. Pare told Corder he had a family to support and needed the work
and didn’t think he should be laid off. According to Corder, Pare talked about complaining to
the Union. Corder told Pare he had that right and encouraged him to take that action if he felt it
was appropriate.35
III. LEGAL PRINCIPLES, CREDIBILITY DETERMINATIONS, ANALYSIS AND CONCLUSIONS
A. Legal Principles
40
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the Board adopted a causation test for use in analyzing 8(a)(1) and (3)
discrimination cases. Under Wright Line, the Government bears the initial burden of proving by
a preponderance of the evidence that animus against and employee’s protected conduct was a
motivating factor in the adverse employment action. The Government may establish that 45
evidentiary burden by establishing that: (1) the employee against whom an adverse action was
JD(ATL)–19–11
10
taken engaged in protected activity; (2) the employer knew of the protected activity; and (3) the
employer exhibited animus against the employee’s protected activity and the employee’s
protected activity was a substantial or motivating factor for the employer’s action. If the
Government makes a showing of discriminatory motivation, then the burden of persuasion shifts
to the employer to demonstrate that the same action would have occurred even in the absence of 5
the protected conduct. North Carolina License Plate Agency #18, 346 NLRB 293 (2006). The
government may meet its Wright Line, supra, burden with evidence short of direct evidence of
motivation, i.e., inferential evidence arising from a variety of circumstances such as union
animus, timing or pretext may sustain the government’s burden. Furthermore, it may be found
that where an employer’s proffered nondiscriminatory motivational explanation is false, even in 10
the absence of direct evidence of motivation, the trier of fact may infer unlawful motivation.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Flour Daniel, Inc.,
304 NLRB 970 (1991). Motivation of union animus may be inferred from the record as a whole,
where an employer’s proffered explanation is implausible or a combination of factors
circumstantially supports such inference. Union Tribune Co. v. NLRB, 1 F.3d 486, 490–492 (7th15
Cir. 1993). Direct evidence of union animus is not required to support such inference. NLRB v.
50-White Freight Lines, Inc., 969 F.2d 401 (7th Cir. 1992). If it is found an employer’s actions
are pretextual, that is, either false or not relied upon, the employer fails by definition to show it
would have taken the same action for those reasons and it is unnecessary to perform the second
part of the Wright Line analysis. Limestone Apparel Corp. 255 NLRB 722 (1981), enfd. 705 20
F.2d 799 (6th Cir. 1982).
B. Credibility Determinations
This case, as in most cases, requires some credibility resolutions. In arriving at my 25
credibility resolutions I carefully observed the witnesses as they testified and I have utilized such
in arriving at the facts herein. I also considered each witnesses’ testimony in relation to other
witnesses’ testimony and in light of the exhibits presented. If there is any evidence, not recited
herein, that might seem to impact the credited facts I set forth I have not ignored such evidence
but rather have determined it is not essential in deciding the issues or I have rejected or 30
discredited it as not reliable or trustworthy. I have considered the entire record in arriving at the
credited facts relied on. I note there are two factual disputes between Pare’s and General
Foreman Yuker’s testimony that are very significant. The first involves when Yuker learned the
crane Pare worked on was going “off rent” and notified Pare, while the other concerns what was
said between Pare and Yuker during their second exchange on September 24, 2010. Pare 35
impressed me as testifying fully, accurately, and truthfully. I credit his testimony and will
expand further on my credibility resolutions as I summarize the facts relied upon. I note Pare
recounted with detail the events of both September 16 and 24. He explained precisely what he
was doing at the time Yuker approached him, and remembered specifically the conversations that
ensued. Yuker, on the other hand, could not recall exactly when he told Pare he intended to keep 40
Klatt and Pare on site. Perhaps Yuker’s most telling testimony, however, is his recollection of
his conversations with Pare on September 24. Regarding their first conversation, Yuker said
Pare was “overbearing . . . as in forcing the conversation on me. I’m not sure how to explain it
better than that . . . he had to have his say in all of these things. And that’s the best way I can
describe it.” Yuker then testified about their second conversation that “[Pare] had to tell me why 45
he was going on and being so forceful in the first conversation. And I know by the end of the
JD(ATL)–19–11
11
conversation I was pretty annoyed with it. Again, he was overbearing.” This testimony is
disjointed and does not elaborate in detail what Pare said or why it made Yuker so irritated.
Yuker provides no substance or specificity to what ensued during their conversations other than
his own foggy recollection and perceptions of the encounter. Furthermore, Yuker still harbors
animus against Pare for filing charges against Local 139 which may impact his ability or 5
willingness to recall their conversations fully or accurately.
C. Analysis and Conclusions
First, did Pare engage in activity protected by the Act? The evidence is clear he did. 10
Pare’s protected activity had its genesis in this case when he attempted, in February 2010, to
obtain information from the Union regarding the operation of its job referral system and the
policies and procedures governing its out-of-work lists. Pare suspected favoritism had infiltrated
the process. When the Union failed to provide the requested information to Pare in the manner
requested he advised Union Central Dispatcher Yuker he would contact the Board. On March 15
12, 2010, Pare filed a charge (Case 30–CB–5522) against the Union alleging the Union had failed
to fairly represent him by failing to provide him information concerning Local 139’s hiring hall
practices and procedures. The filing of this charge constituted protected conduct. Pare not only
filed the above charge but, on June 2, 2010, he filed a second charge (Case 30–CB–5569) against
the Union alleging the Union was harassing and threatening to expel him from membership in 20
the Union because of his first charge. On July 27, 2010, Pare amended his second charge (Case
30–CB–5569) alleging the Union’s bylaws, as outlined in a union newspaper article, provided to
him by General Foreman Yuker, were unlawful. These filing actions by Pare clearly constitute
activity, on his part, that is protected by the Act.
25
Was the Company aware of Pare’s protected activity? It is undisputed the Company, by
General Foreman Yuker, was aware of the unfair labor practice charges Pare filed against the
Union. General Foreman Yuker was present at the Union’s monthly meeting, on May 12, 2010,
at which the unfair labor practice charges were discussed and Pare, as well as the other two who
had filed Board charges, were identified by name and Pare’s vehicle license plate number was 30
even revealed to the membership. A day or so later, General Foreman Yuker told Pare at work
that he should not have filed charges against the Union. Yuker even inquired at the June 2010
union meeting about the status of the charges Pare filed against the Union. Simply stated, the
Company was undisputedly aware of Pare’s protected activities.
35
Was Pare’s protected activity a substantial or motivating factor in the Company’s
decision to lay him off on October 1, 2010? The totality of the circumstances clearly establishes
it was. First, General Foreman Yuker was a long time union member and former business agent
for the Union. Yuker was displeased Pare filed unfair labor practice charges with the Board
against the Union where his brother, Guy Yuker, was the general dispatcher and other close 40
relatives were members. General Foreman Yuker even announced to the employees at the
worksite that those (Pare and the other two) should be given a chance to undo what they had
done by filing charges with the Board, but, if they did not, internal union charges should be
brought against them and their union cards taken away. General Foreman Yuker made it clear
that Pare and the others were to drop, or withdraw their charges, or they should be removed from 45
union membership and its benefits including job referrals. Following Pare’s filing his second
JD(ATL)–19–11
12
unfair labor practice charge on June 2, 2010, against the Union in which he alleged he was being
harassed for filing his initial charge, General Foreman Yuker attended the Union’s June 9
monthly meeting and specifically asked about any disposition of the unfair labor practice charges
against the Union. Pare attempted to speak with General Foreman Yuker at the June meeting but
Yuker ignored him. The next day, June 10, 2010, at work, Pare asked General Foreman Yuker 5
why he would not speak with him or shake his hand the day before. Pare credibly testified
Yuker told him he was not going to shake his hand until he knew the outcome of the charges
Pare had filed against the Union. Yuker told Pare he was wrong in filing the charges and going
outside the Union and had broke his oath to the Union. General Foreman Yuker acknowledged
he again refused to shake Pare’s hand at the end of this meeting because he picked his friends 10
and he disagreed with Pare’s actions.
On June 28, 2010, General Foreman Yuker continued to demonstrate his animus against
Pare’s protected conduct by again indicating to him his charges against the Union were wrong
and gave Pare a copy of a Seventh Circuit Court of Appeals decision that was “evidence” Pare 15
and the other two should not be suing the Union. Yuker at work was again expressing his
displeasure to Pare regarding Pare’s protected actions. On July 12, 2010, at work, General
Foreman Yuker gave Pare a union newspaper article written by the Union’s attorney on the
subject of how internal remedies saved Local 139 money. Yuker suggested to Pare the article
might be of interest to him. Two days later Yuker, at work, explained to Pare the newspaper 20
article showed Pare had no right to go outside the Union for help and that Pare should show it to
his attorney so they could understand that what Pare was doing was wrong and he could not sue
the Union. Pare told General Foreman Yuker all of this was none of Yuker’s business that it was
a matter between he (Pare) and the Union. General Foreman Yuker again expressed his animus
against Pare’s protected conduct on September 24, 2010. Yuker admittedly spoke with Pare 25
twice on that date as he was explaining new safety procedures to those working on or around
cranes. I credit Pare’s account of the two meetings. Pare was much more precise in his
recollection of what was said at each meeting. Pare simply stated what was said whereas, Yuker
summarized these meetings, saying Pare was “overbearing,” “forceful,” and Yuker
acknowledged he was “annoyed with it.” Relying on Pare’s credited testimony, I find Pare asked 30
Yuker why every time they met it felt like they wanted to shoot each other. Pare told Yuker he
had nothing against him and treated him like his foreman. Yuker responded that what Pare did to
the Union he had done to him and added, “Until you change that, this is the way it is going to
be.” One week later Pare was laid off. It is clear that General Foreman Yuker was the one
responsible for selecting Pare for layoff. His selection of operators or oilers for layoff was 35
consistently upheld by higher management. Higher management determined only the number to
be laid off while Yuker selected the specific individuals for layoff.
By all of the above, the Government has established the Company, General Foreman
Yuker in particular, had and specifically expressed animus against Pare’s protected conduct and 40
acted on that animus in laying off Pare on October 1, 2010.
Did the Company demonstrate that it would have laid Pare off when it did even in the
absence of any protected conduct on his part? I find the Company did not meet its burden of
persuasion. The Company’s contention General Foreman Yuker was simply following Company 45
protocol when he selected Pare to be laid off, as Pare was the oiler assigned to the crane going
JD(ATL)–19–11
13
off rent, does not withstand close scrutiny. Two conversations of General Foreman Yuker with
Pare establishes Yuker’s authority to select those for lay off regardless of any protocol and
establishes what his real motivations were in selecting Pare for lay off. In the conversation with
Pare, on September 16, 2010, General Foreman Yuker clearly indicated he had the authority not
to follow protocol in selecting employees for lay off. Yuker told Pare and operator Klatt that 5
although their crane was going off rent he planned to keep them and asked Pare and Klatt not to
mention that fact because he had to “lay someone else off” to keep them employed but that was
his “game plan.” It is clear General Foreman Yuker had a game plan for selecting employees for
lay off that did not follow any protocol. It is just as clear Yuker could select whomever for
layoff and his selections or recommendations to higher management were, as a general practice, 10
accepted by higher management. The second of two conversations, on September 24, 2010,
demonstrates Yuker’s real motivation for selecting Pare for lay off. In the first conversation on
September 24, Pare attempted to tell Yuker one of the union stewards had said something
different about oilers being in the swing radius than what General Foreman Yuker had stated.
The exchange between Pare and Yuker became heated. In the second conversation on 15
September 24, Pare tries to clear up the first conversation between them. In the second
conversation Pare asks Yuker why there seems to be so much animosity between them. Yuker
responded that what Pare had done to the Union by filing the unfair labor practice charges
against the Union he had done to him (Yuker) and, “until [Pare] changes that, this is the way it’s
going to be.” One week later Pare is chosen for lay off. General Foreman Yuker who, days 20
earlier, told Pare he was doing a nice job and he intended to keep him on the job but then on
September 24, had a confrontation with Pare telling Pare that until he (Pare) cleared up his
situation (charges) with the Union, relations between the two of them would be filled with
animosity. These exchanges in September clearly refute the Company’s contention General
Foreman Yuker was simply following established protocol when he selected Pare for lay off on 25
October 1, 2010.
I reject the Company’s contention that General Foreman Yuker’s disagreement with
Pare’s filling charges against the Union does not constitute unlawful animus but was purely an
internal Union disagreement between two members that did not spill into or impact their work 30
relationship. It did enter into their working relationship and it demonstrates strong animus
against Pare’s protected rights. General Foreman Yuker announced, at work, to Pare’s co-
workers that Pare should not have filed the charges and he should undo his actions in that regard.
Yuker gave Pare, at work, a court decision and a union newsletter trying to persuade Pare against
his protected conduct. Even when Pare tried to improve the working relationship with General 35
Foreman Yuker he was told the animosity would continue on the job until Pare took care of his
charges against the Union. General Foreman Yuker’s conversations with, and his actions
against, Pare demonstrate this was more than just an internal union disagreement between two
union members.
40
I likewise reject the Company’s contention that because General Foreman Yuker gave
Pare certain opportunities to operate different equipment at higher rates of pay demonstrates
Yuker held no unlawful animus against Pare. The Company did not explain or establish
reason(s) why Yuker gave Pare the temporary assignments at a higher pay scale. It could have
been because no one else was available or Pare was the most highly skilled for the assignment 45
JD(ATL)–19–11
14
but, such is only speculation and does not demonstrate a lack of any unlawful animus against
Pare’s protected conduct.
Accordingly, I conclude the Company’s layoff of Pare on October 1, 2010, violated
Section 8(a)(1) and (3) of the Act.5
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.10
2. By on October 1, 2010, laying off Timothy Pare because he engaged in protected
activity, the Company engaged in unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
15
REMEDY
Having found the Company has engaged in certain unfair labor practices, I find it must be
ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act. Specifically, to remedy its unlawful conduct toward Pare, the Company 20
must, within 14 days of the Board’s Order, offer him reinstatement to his former job, or if his
former job no longer exists to a substantially equivalent job without prejudice to his seniority or
other rights and privileges previously enjoyed, and make him whole for any lost wages and
benefits as a result of his October 1, 2010 layoff, with interest. Backpay will be computed as
outlined in F. W. Woolworth Co., 90 NLRB 289 (1950) (backpay computed on quarterly basis).25
Determining the applicable rate of interest will be as outlined in New Horizons for the Retarded,
283 NLRB 1173 (1987) (adopting Internal Revenue Service rate for underpayment of Federal
taxes). Interest on all amounts due to the employee shall be compounded on a daily basis as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). I also recommend the
Company, within 14 days of the Board’s Order, be ordered to remove from its files any reference 30
to its October 1, 2010 layoff of Pare and, within 3 days thereafter, notify Pare in writing it has
done so that his layoff will not be used against him in any manner. I also recommend the
Company be ordered, within 14 days after service by the Region, to post an appropriate “Notice
to Employees” in order that employees may be apprised of their rights under the Act and the
Company’s obligation to remedy its unfair labor practices.35
On these findings and conclusions of law and on the entire record, I issue the following
recommended4
ORDER40
The Company, URS Energy and Construction, Inc., Oak Creek, Wisconsin, its officers,
agents, successors, and assigns, shall

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings
conclusions and recommended Order shall, as provided in Sec.102.48 of all the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD(ATL)–19–11
15
1. Cease and desist from
(a) Laying off or otherwise discriminating against employees for engaging in
activity protected by the Act.5
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the 10
Act.
(a) Within 14 days from the date of the Board’s Order, offer Timothy Pare
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.15
(b) Make Timothy Pare whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the manner set forth in the remedy
section of this decision.
20
(c) Within 14 days from the date of the Board’s Order, remove from its files
any reference to the unlawful layoff of Timothy Pare, and within 3 days thereafter, notify him in
writing that this has been done and that his layoff will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the 25
Regional Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
30
(e) Within 14 days after service by the Region, post at its Elm Road
Generating Station, Oak Creek, Wisconsin facility, copies of the notice marked “Appendix.”5
Copies of the notice, on forms provided by the Regional Director for Region 30, after being
signed by the Company’s authorized representative, shall be posted by the Company and
maintained for 60 consecutive days in conspicuous places including all places where notices to 35
employees are customarily posted. In addition to physical posting of paper notices, notices shall
be distributed electronically, such as e-mail, posting on an intranet or an internet site, or other
electronic means, if the Company customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Company to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these 40
proceedings, the Company has gone out of business or closed the facility involved in these
proceedings, the Company shall duplicate and mail, at its own expenses, a copy of the notice to

5 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(ATL)–19–11
16
all current employees and former employees employed by the Company at any time since
October 1, 2010.
Dated at Washington, D.C., July 28, 2011.
5
______________________________
William N. Cates
Administrative Law Judge10
JD(ATL)–19–11
17
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT layoff or otherwise discriminate against any of you for engaging in activity
protected by the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Timothy Pare 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 Timothy Pare whole for any loss of earnings and other benefits resulting from
his layoff, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful layoff of Timothy Pare, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the layoff will not be used against him in any way.
URS ENERGY AND CONSTRUCTION, INC._
(Employer)
Dated: ____________________ By____________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
JD(ATL)–19–11
18
310 West Wisconsin Avenue, Suite 700W, Milwaukee, WI 53203-2211
(414) 297–3861, Hours: 8:00 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (414) 297–3819