Wil-Shar, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 4, 2011

26-CA-023869 (N.L.R.B. Nov. 4, 2011)

JD(ATL)–30–11
Rogers, AR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WIL-SHAR, INC.
and Cases 26–CA–23869
26–CA–23903
IRONWORKERS, LOCAL 584
Linda M. Mohns, Esq.,
for the General Counsel.
Charles M. Kester, Esq.
of Fayetteville, Arkansas,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was tried in
Fayetteville, Arkansas, on June 8, 9, and 10, 2011. The charge in Case 26–CA–23869 was filed
by Ironworkers, Local 584 (the Union) on October 19, 2010 and amended on December 20,
2010. The charge in Case 26–CA–23903 was filed by the Union on November 18, 2010, and
amended on January 19, 2011.1 Based upon the allegations contained in Cases 26–CA–23969
and 26–CA–23903, the Regional Director for Region 26 of the National Labor Relations Board
(the Board) issued an order consolidating cases, consolidated complaint, and notice of hearing on
April 28, 2011.
The complaint alleges that Wil-Shar, Inc. (Respondent) terminated Charles Robbins on
July 13, 2010, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act (the
Act.) The complaint further alleges that Respondent, acting through owner Billy Witcofski,
violated Section 8(a)(1) of the Act by interrogating employees about their union activities and
impliedly telling employees that it would be futile for them to select the Union as their
collective-bargaining representative. The complaint additionally alleges that Respondent, acting
through Billy Witcofski threatened employees with a loss of work and a loss of employment if
they selected the Union as their collective-bargaining representative, in addition to threatening to
cease operations if the employees selected the Union as their collective-bargaining
representative. Finally, the complaint alleges that on or about October 15, 2010, Respondent
orally promulgated a rule prohibiting employees from discussing their terms and conditions of
employment with each other.

1 All dates are in 2010 unless otherwise indicated.
JD(ATL)–30–11
2
On the entire record2, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel and Respondent, I make the
following:
5
Findings of Fact
I. Jurisdiction
Respondent, with an office and place of business in Rogers, Arkansas, has been engaged 10
in the erection of steel building packages. During the previous calendar year, Respondent, in
conducting its business operations, purchased goods and materials valued in excess of $50,000
directly from points located outside the State of Arkansas, which were received at jobsites
located within the State of Arkansas. I find that Respondent is an employer within the meaning
of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case. 15
II. Alleged Unfair Labor Practices
A. Issues
20
As the Respondent points out, the facts and evidence in this case relate to two specific
events; the discharge of Charles Robbins and Respondent’s conduct during an employee meeting
on October 15, 2010. The Acting General Counsel alleges that employee Charles Robbins
(Robbins) concertedly complained to Respondent regarding the wages, hours, and working
conditions of employment of Respondent’s employees by complaining about Respondent’s 25
failure to pay employees the prevailing wage rate, as well as by complaining about Respondent’s
employment of illegal immigrants. The complaint alleges that Respondent terminated Robbins
on July 13, 2010, because of his having engaged in these concerted protected activities and
because Respondent believed that Robbins joined or assisted the Union. Additionally, the
Acting General Counsel alleges that during the course of an employee meeting on October 15, 30
2010, Respondent’s owner and agent made statements to employees that interfered with,
restrained, and coerced them in the exercise of rights that are protected by Section 7 of the Act.
B. Background
35
Respondent is a construction sub-contractor engaged in the erection of steel structures
and buildings. Although Respondent’s office is in Rogers, Arkansas, Respondent employs
approximately 50 to 75 employees who work at various work sites in Arkansas, Missouri,

2 On August 4, 2011, counsel for the Acting General Counsel filed an unopposed motion to correct the
official transcript. I have reviewed the transcript in light of the nine proposed corrections. Eight of
the proposed corrections deal with obvious transcription errors involving references to the attorneys
and the judge, as well as misplacement of “Q” and “A” designations. The remaining proposed
correction deals with the transcription of the word “coke.” Counsel asserts that the correct word
should be “coat.” In reviewing the transcript, however, it appears that the witness could have said
“coke” or “coat.” and there would have been no substantive difference in his testimony. Therefore, I
grant counsel for the Acting General Counsel’s motion to correct the transcript for all proposed
corrections with the exception of the proposed substitution of the word “coat” for “coke.”
JD(ATL)–30–11
3
Mississippi, Louisiana, and Texas. Respondent is owned by William Witcofski (Witcofski) and
his wife. Witcofski is the chief executive officer of the Company and he describes himself as the
person who takes care of everything and oversees almost everything. Witcofski’s son; Hayden
Witcofski serves as the project manager for Respondent’s total operation. Carter McLeod is
Witcofski’s son-in-law and functions as the chief financial officer. During the relevant time 5
period, both John Rusco and Jason Keen were foremen. Keen also worked as a safety, quality,
and loss control officer. John Rusco’s wife; Denise Rusco works as Respondent’s receptionist.
During the period of time between August 2009 and the first week of November 2010, Chad Lee
worked as Respondent’s internal control officer.
10
Respondent stipulates that for all relevant times, William Witcofski, Hayden Witcofski,
Carter McLeod, and Jason Keen were supervisors and agents within the meaning of the Act.
C. Michael Richards’ Organizing Efforts
15
Michael Richards began his apprenticeship with the Union in Las Vegas, Nevada, in
1998 and later transferred his union membership to the Union in Tulsa, Oklahoma, in
approximately 2006. On December 1, 2009, Richards became a union organizer. Richards
recalls that he became aware of Respondent’s operation through his union business manager.
Recognizing that Respondent was working on a high profile job only a few blocks from the 20
Tulsa Building Trades meeting place, he decided to “get his feet wet” and he initiated a “salting”
campaign with Respondent shortly after he became an organizer. After making an initial
inquiry with a foreman on Respondent’s Tulsa, Oklahoma jobsite, Richards went to
Respondent’s office in Rogers, Arkansas, and submitted his application for employment.
Richards began his employment with Respondent in December 2009 and worked on the 25
construction project at the Lorton Performing Arts Center on the campus of the University of
Tulsa in Oklahoma.
Richards testified that after he began the job, he had some concerns about safety, as well
as wages. When Hayden Witcofski did not respond to his inquiries, Richards engaged in an30
economic strike. In a letter dated January 11, 2010, Richards told Hayden Witcofski that he was
going on strike because of several conditions that adversely affected all of “the working men of
Wil-Shar Steel Erectors.” He identified the conditions as low salaries that were below the
prevailing wage rate, lack of vacation pay, lack of health insurance and other fringe benefits,
safety concerns, and the necessity for employees to bring their own water to the jobsite. In his 35
letter, Richards suggested that Hayden Witcofski sit down with him and discuss the elimination
of these issues on behalf of all the employees. He added that once there had been an agreement
to resolve the matter, the agreement could be reduced to writing. Although Witcofski never met
with Richards about the concerns in his letter, Witcofski telephoned Richards and briefly
inquired as to what Richards meant by “safety concerns.” After he initiated the strike, Richards 40
distributed organizing leaflets at Respondent’s worksites in both Oklahoma and Arkansas. One
of the leaflets dealt with Respondent’s failure to pay the prevailing wage rate and suggested that
the Union could assist employees in obtaining these rates.
In a letter dated February 3, 2010, Richards notified Hayden Witcofski that he was 45
unconditionally offering to return to work. He also assured Witcofski that he intended to assist
JD(ATL)–30–11
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his fellow employees in obtaining better wages and working conditions by organizing the
employees into the Union and pursuant to their rights under Section 7 of the Act.
Following his February 3, 2010 letter to Respondent, Richards continued to have contact
with Respondent’s employees. He and two other union organizers visited Respondent’s 5
employees in their homes. Richards also visited Respondent’s jobsites where he documented
what he believed to be safety violations and provided notice to the U.S. Department of
Occupational Safety and Health Administration (OSHA.) Over the course of the summer months
in 2010, Richards continued to visit Respondent’s worksites in Oklahoma and Arkansas.
10
During 2010, Chad Lee (Lee) worked as Respondent’s internal control officer. Lee did
not have a private office. He carried out his work from his desk that was located in a large room
with other desks; one of which was used by William Witcofski. Each morning, Lee attended a 9
a.m. meeting attended by Witcofski, and various managers including Hayden Witcofski, and
Carter McLeod. During the meeting, the managers discussed pertinent information that 15
pertained to the jobsites and future work. Lee recalled seeing Richards’ letters to Hayden
Witcofski. Lee also recalled that Richards, the Union, and Richards’ complaints to OSHA were
all discussed “a lot” and had been a hot topic in the office. Lee also opined that Hayden
Witcofski had not only been upset with Richards about the OSHA complaints, but he had felt
betrayed by Richards. 20
D. The Discharge of Charles Robbins
Charles Robbins (Robbins) has been employed as an ironworker since 2006. As a
journeymen ironworker, Robbins works as a connector and has certifications to operate 25
equipment such as all-terrain forklifts and aerial lift equipment. Working as a connector,
Robbins is the individual who connects the steel from the lifting equipment such as a crane or a
forklift and bolts the steel to the structure.
1. Robbins’ complaints concerning pay issues30
a. The prevailing wage rate issue
During the first half of 2010, Respondent was involved in several prevailing wage
projects; two of which were the Garland Bookstore (GBS) project on the University of Arkansas 35
campus in Fayetteville, Arkansas, and the Armed Forces Reserved Center (AFRC) project in
Vaughn, Arkansas. Robbins was assigned to these two projects as well as other construction
projects during this same period of time. While on the AFRC project, Robbins discussed with
other employees the issue of whether they were receiving the prevailing wage rate for their work.
Robbins testified that he tried to convey to all the employees on the job that everyone was 40
entitled to the prevailing wage rate based upon the work they were performing and not based
upon their title.
Employee Kenneth Catron worked for Respondent until July 2010. Although Catron
worked on the GBS job, he was not paid the prevailing wage rate. Catron testified that he had not 45
been familiar with his legal rights before his discussing the wage rate issue with Robbins and
other employees on the jobsite. Catron recalled that Robbins seemed to be more knowledgeable
JD(ATL)–30–11
5
about the prevailing wage issue because Robbins, along with others, helped him to understand
what needed to be done. On March 15, 2010, Catron filed a prevailing wage claim for his work
on the GSB project. By letter dated April 23, 2010, the Arkansas Department of Labor notified
Witcofski of Catron’s claim. Employee Jarrid Giese testified that he and other employees
discussed whether they were being paid the prevailing wage rate on certain jobs. He recalled 5
that Robbins had been involved in the discussions and had voiced his anger because he was
‘working his butt off and not getting his proper wages.”
During May and June 2010, Robbins worked on the Sports Academy job in Rogers,
Arkansas. When Foreman John Rusco was not available, Robbins served as acting foreman. 10
Robbins recalled that on one particular morning when he was working as the acting foreman, he
met with Witcofski to discuss the tasks that needed to be completed for the day. During the
course of the conversation, Witcofski mentioned to Robbins his displeasure with Catron’s having
damaged some equipment on the GBS project. Witcofski opined that Catron was more of a
liability than an asset. He went on to explain, however, that because of Catron’s having filed the 15
prevailing wage claim with the U.S. Department of Labor, there might be adverse consequences
if he tried to terminate Catron. Witcofski then instructed Robbins to keep an eye on Catron to
determine if there was anything such as tardiness or absenteeism that would give him a
legitimate reason to get rid of Catron. Although Robbins told Witcofski that he would keep an
eye on Catron, Robbins also notified Catron that his job was on the line and told him about the 20
conversation with Witcofski. Catron testified that while there had been damage to some
equipment on the GSB project that resulted in his receiving a suspension, this damage had
occurred as much as 6 months before Robbins’ conversation with Witcofski.
Robbins also testified that in addition to speaking with other employees about their 25
receiving the prevailing wage rate; he also spoke with Witcofski, McLeod, as well as foremen
Jason Keen and James Marcotte. Chad Lee testified that during his work in the office, he
observed Robbins as very outspoken and very intelligent. Lee explained that when things were
not going the way that he thought that they should go, Robbins would make it known through
telephone calls to both McLeod and Witcofski, as well as to Lee. Lee was aware of Robbins’ 30
calls because he was either present when the calls came in or Robbins’ calls were discussed
during the 9 a.m. meeting. Lee recalled that the prevailing wage rate issue was a common topic
among employees and that Robbins was the most outspoken employee on the subject. Lee
recalled that Robbins was very outspoken and would make it known when he was upset. Lee
recalled that during an automobile ride to the El Paso worksite, Robbins telephoned a labor 35
agency to ask questions about prevailing wage rates. When Robbins and other employees raised
concerns about their pay and questions concerning the prevailing wage rate with Lee, he relayed
the questions to McLeod. Lee explained that because of his position, employees seemed to think
that he had “some sort of pull” in the office and employees vented their frustrations with him. In
response, Lee passed along the concerns to Witcofski, McLeod, Hayden Witcofski, or the 40
foremen.
While he was working on the AFRC job and in approximately May or June of 2010,
Robbins contacted the Wage and Hour Division of the U.S. Department of Labor to inquire
whether the roofing work performed on one of the structural steel buildings came within the 45
guidelines of prevailing wage work. Based upon the information that he received from the
Department of Labor, Robbins concluded that the work was considered to be ironwork and to fall
JD(ATL)–30–11
6
within the scope of prevailing wage rates. Robbins told Witcofski that based upon the
information that he receive from the Department of Labor, this specific roofing work fell within
the scope of the prevailing wage rate. Witcofski acknowledged that he had discussions with
Robbins about his shortages in prevailing wages and he also had discussions with Robbins about
the work on that specific roof. Although Witcofski asserted that his discussion with Robbins 5
concerning the roof work was more of a question of job description rather than prevailing rate,
he also acknowledged that he responded to Robbins’ questions by his own contact with the U.S.
Department of Labor and he addressed questions about prevailing wage rates in crew meetings
with Robbins and other employees.
10
Robbins testified that on two or three occasions he was not paid the prevailing wage rate
for work that would have been covered by the prevailing wage rate. On these occasions, he
confronted either Witcofski or McLeod about the pay shortage. The record reflects that Robbins
received pay adjustments on April 9, May 11, and May 24, 2010. When he received the pay
adjustment on May 11, 2010 Robbins spoke with both Witcofski and McLeod at Respondent’s 15
office concerning Respondent’s failure to pay him the required prevailing wage. When Robbins
received the handwritten check for the adjustment, Witcofski told him not to discuss with the
other employees that he was receiving the prevailing wage rate. Robbins explained that even
though there were some other employees who had received the prevailing wage rate, Witcofski
instructed him not to discuss the fact that he had received a handwritten check for the difference 20
in hourly pay. Witcofski told him that if he discussed this with other employees, it might affect
his opportunity to work on future prevailing wage rate jobs.
The Acting General Counsel submitted Robbins’ telephone records to show that on July
12, 2010, Robbins telephoned both the Arkansas Department of Labor as well as the U.S. 25
Department of Labor. Robbins recalled that he made those calls from his cell phone during his
lunch break on July 12. Robbins confirmed that his first written response from the U.S.
Department of Labor was included in a letter to him dated July 29, 2010. The letter confirmed
that Robbins would be contacted once the case was assigned for investigation.
30
Although Robbins acknowledged that he did not tell Witcofski about his making the call
to the Department of Labor on July 12, he asserted that Foreman Keen had been aware of his
doing so.
b. The issue concerning pay for travel time35
When employees traveled to the jobsite in El Paso, the trip took approximately 16 to 17
hours. Both Lee and Robbins were the designated insured drivers to transport the employees.
Robbins testified that initially he and other employees understood that they would receive $100
for travel time each way to El Paso. After received their first check, however, they discovered 40
that they were receiving only $100 for the full round trip. Robbins had been especially
concerned because as the insured driver, he spent half his time driving. Robbins recalled that
several of the employees were disgruntled because they were only receiving $100 for almost 40
hours of traveling.
45
Lee recalled that Robbins and some of the other employees came to his hotel room in El
Paso and he described the incident as a “huge meeting.” During the meeting, Robbins
JD(ATL)–30–11
7
telephoned Witcofski to talk about the issue of pay for the employees for their drive time to El
Paso. Although Witcofski did not recall that the meeting occurred in Lee’s hotel room, he
recalled that Robbins telephoned him from the hotel about the pay issue.
Robbins recalled that Witcofski acknowledged that he would do whatever it took to 5
satisfy the employees. Robbins spoke with the other employees and the employees collectively
agreed that the insured drivers should receive $10-an- hour while driving and the employees who
were passengers would receive minimum wage. A note written by McLeod and included in
Robbins’ file refers to the travel pay for Robbins based upon this formula for the time period in
early May 2010. 10
2. The issue concerning non-English speaking employees
Lee testified that he was aware that employees were concerned that Respondent was
employing illegal immigrants. It is apparent that non-English speaking employees on the jobsite 15
posed an issue for Robbins and other employees because of the related safety issues.
Respondent does not dispute that it employed two Hispanic employees who changed their names
and submitted new identification and employment documentation prior to Robbins’ discharge.
Lee processed the paperwork for one of the Hispanic employees who had worked for 2 years and
then submitted a new drivers’ license and social security card with a totally new name in mid-20
May 2010. Lee recalled that Robbins mentioned his concerns about Respondent’s employment
of these non-English speaking employees who may have been illegal immigrants. Lee
specifically recalled that Robbins spoke with him about these concerns during one of their
driving trips to the El Paso project. As with other concerns voiced by Robbins and the other
employees, Lee told Hayden Witcofski about Robbins’ concerns. Lee testified that he relayed 25
these concerns because he felt that it was his job to let the project manager know if employees
were upset on the job.
While Robbins was working on the Sports Academy project in Rogers, Arkansas,
Robbins’ work required that he perform a grinding task while working from the basket of a 30
scissor lift; a piece of equipment similar to a cherry picker. Catron testified that while Robbins
was in the basket, the basket “grounded out against the building” causing an electrical shock to
Robbins. Although it was never determined what caused the electrical shock, Robbins
experienced the electrical shock for approximately 20 to 30 seconds. He lost motor function and
fell to the bottom of the basket. Although employee Trevor Larouche was working from a 35
different scissor lift, he observed what was happening to Robbins. Larouche began calling out to
one of the Hispanic workers; telling him to call 911 and to shut off the equipment. Both Catron
and Robbins testified that despite Larouche’s attempts to get help for Robbins, he could not
make the nearby Hispanic employees understand what he was saying. Witcofski not only
acknowledged that Robbins talked with him about the incident, but he also acknowledged that 40
Robbins and other employees raised the safety issue of employees who did not speak English.
Catron also testified that a few weeks before Robbins was terminated, Robbins told him that he
intended to file a claim about Respondent’s employment of illegal immigrants.
Catron testified that after the incident, there was discussion among the employees about 45
the dangers of working on a crew with non-English speaking employees. Jarrid Giese testified
that the inability to communicate with fellow crewmembers was an important concern for all the
JD(ATL)–30–11
8
employees because the language barrier could potentially result in injury or death. Giese
recalled that Robbins told him that he had reported the concerns to a foreman, however, Giese
did not recall with whom. Giese also recalled that Robbins announced to him his intention to
take his concerns to the “Labor Board.” Catron recalled that a few weeks before Robbins’
termination, Robbins told him that he intended to report Respondent’s employment of illegal 5
immigrants to immigration or law enforcement officials.
Robbins testified that in early July 2010, he attempted to call the Immigration
Naturalization Service but he had difficulty in getting the right number. He recalled, however,
that when he was able to reach an organization identified as the Immigration Reform Law 10
Institute, he shared this information with Keen. Robbins testified that at the time he had
considered Keen to be a “good personal friend.”
3. Respondent’s awareness of Robbins’ activities
15
Lee testified that Michael Richards’ union activities was a topic of conversation at
Respondent’s facility throughout the first part of the 2010 and beyond the time of Robbins’
discharge. His name came up in the morning meetings in relation to Richards’ filing of the
OSHA complaint. Lee also explained that while there were a number of employees who were
upset about the non-English speaking employees on the job, Robbins telephoned William and 20
Hayden Witcofski, as well as McLeod and Lee to voice his concerns. Lee explained that because
of Robbins doing so, his name also came up during management discussions during the same
period when the Union was a hot topic. Lee recalled that after he returned from the El Paso job
and after May 2010, Robbins’ name was brought up often during the 9 a.m. meetings. Lee also
recalled that William and Hayden Witcofski, as well as McLeod, discussed Robbins as someone 25
to watch out for in light of his intelligence and stubbornness.
Lee additionally recalled that there was discussion during the morning management
meeting concerning whether Robbins was providing information to Richards. Management
knew that Richards was getting employee names and addresses and Robbins had a reputation as 30
being outspoken. During the meetings, Witcofski opined that Robbins might be the person who
was providing the information to the union.
Robbins testified that in early July 2010, Foreman Jason Keen telephoned him and told
him about a conversation that Keen had with Witcofski. Keen reported to Robbins that 35
Witcofski had asked Keen if he was aware of Robbins having conversations with other
employees about the prevailing wage rate or about illegal immigrants on the job. Robbins
recalled that Keen told him that Witcofski wanted him (Keen) to keep an eye on Robbins and to
report to Witcofski if he heard that Robbins was talking about such things on the jobsite.
40
4. Robbins actions on July 12, 2010
Robbins recalled that on July 12, 2010, he told Keen that he was going to go to the
Rogers Police Department on the morning of July 13 to get additional information about illegal
immigrants on the job. When he spoke with Keen by telephone, Robbins explained that he 45
hoped that the police department could direct him to the right agency to handle this matter.
Robbins recalled that he told Keen that he was trying to find the appropriate agency with which
JD(ATL)–30–11
9
he could file a formal charge against Respondent for knowingly hiring illegal immigrants and for
what he believed to be I-9 fraud. Robbins testified that in telling Keen, he believed that Keen, as
well as the other employees, were “on board” with the idea of contacting a Government agency.
Robbins testified that Keen did not tell him that he must report to work at the beginning of the
workday on July 13.5
Robbins’ telephone records reflect that he made three telephone calls to Jason Keen on
July 12, 2010. The first call to Keen at 5:11 p.m. lasted only 2 minutes. A second call to Keen
at 5:31 p.m. lasted for 6 minutes and a final call to Keen at 7:03 p.m. lasted for only 1 minute.
Robbins testified that although he had discussions with Keen at work about his intent to contact 10
the police department, he recalled that in one of the three telephone calls on July 12, 2010, he
additionally told Keen that he was going to contact the police department.
5. The events of July 13, 2010
15
As he had told Keen that he would do, Robbins went to the Rogers, Arkansas Police
Department. He spoke first with an officer of the Criminal Investigation Division and then with
an Immigration and Customs Enforcement (ICE) agent. He learned that any formal claim would
have to be filed with the Fayetteville, Arkansas Immigration and Customs office and he obtained
the number for that office. 20
While in the police department, Robbins received a message from Witcofski, telling him
to contact Witcofski before going to work at the AFRC. When Robbins later spoke with
Witcofski, Witcofski asked him why he was not at work. Robbins told him that he was taking
care of personal business. Witcofski then told him that he had been selected for layoff. Robbins 25
recalled that Witcofski explained that this decision was based on the fact that the AFRC project
would soon be finished and also because of Robbins’ unavailability to work on weekends.
6. The reasons given for Robbins discharge
30
Witcofski testified that he made the decision to terminate Robbins on the morning of July
13, 2010, and that the decision was based upon Robbins’ attendance for the previous 2-week
period. Witcofski explained: “It didn’t seem like he wanted to be there as bad as anybody else.”
Witcofski denied, however, that he was aware of any collective or concerted type of activities or
complaints that Robbins engaged in when he made the decision to terminate Robbins. He also 35
asserted that he was unaware of any ICE complaint or complaints related to illegal immigrants.
Furthermore, he contended that any complaints that Robbins made with respect to the prevailing
wage rate dealt only with Robbins’ pay and did not relate to any other employees.
Specifically, Witcofski testified that during the 2-week period of time, Robbins was 40
absent from work on July 6, 2010. Additionally, he was 2 hours late arriving for work on July 7
and 5 hours late in beginning his shift on July 10.
7. Record evidence concerning Robbins’ attendance for the period in question
45
Robbins does not dispute that he arrived after the scheduled starting time on July 7 or
July 10. Robbins asserts, however, that he was never absent or late without informing his
JD(ATL)–30–11
10
foreman in advance. Because Robbins and Keen lived near each other, Robbins occasionally
rode to work with Keen. Robbins testified that he maintained communication with Keen and he
discussed all of the absences with Keen in advance.
Although Witcofski contended that Robbins was absent from work on July 6, 2010, he 5
acknowledged that he did not investigate Robbins’ absence for July 6, 2010 until the morning of
July 13. Despite the fact that Witcofski contends that he relied upon Robbins’ alleged absence
on July 6 as a basis for Robbins’ termination, Respondent’s records reflect that Robbins was later
compensated for working 10 hours on July 6. When Robbins received his final check, he
discovered that his hours were short for the last 2-week period. He spoke with foreman Keen 10
and asked him to check his records. Upon checking, Keen determined that his records
documented Robbins as present on July 6 and working a 10-hour day. On July 19, 2010,
Robbins was paid $170 for his work on July 6, 2010.
When Robbins was initially notified of his separation from the Company on July 13, 15
2010, he received a termination/separation notice reflecting an involuntary termination for lack
of work/layoff and for excessive absenteeism/tardiness. The remarks section of the document
included the following: “We chose to lay off Charlie because he had excessive absenteeism for
the last several weeks. See attached absenteeism and tardiness records.” Attached were portions
of Respondent’s time records. 20
When Robbins submitted the separation notice to the Arkansas Department of Workforce
Services to apply for unemployment benefits, he was informed that the entry concerning
excessive absenteeism might disqualify him from receiving unemployment benefits. Robbins
contacted Witcofski and told him that because of the wording of the layoff notice, he was not 25
entitled to unemployment benefits. Witcofski told him that he didn’t want to prevent him from
receiving unemployment benefits and he would issue Robbins a revised separation notice.
Approximately a week to 2 weeks after his termination, Robbins went back to Respondent’s
facility and received a second separation notice documenting the reason for separation as lack of
work and layoff. After Robbins’ submitted the revised separation notice, the Arkansas 30
Department of Workforce Services issued a Notice of Agency Determination dated August 9,
2010, approving Robbins’ claim for unemployment benefits and noting that Robbins was
separated for reasons other than misconduct in connection with the work.
E. Analysis35
1. Prevailing legal authority
The Acting General Counsel alleges that from May to July 2010, Robbins concertedly
complained to Respondent regarding the Respondent’s failure to pay employees the prevailing40
wage rate. Additionally, the complaint alleges that from about June to July 2010, Robbins
concertedly complained to Respondent concerning Respondent’s employment of illegal
immigrants. The Acting General Counsel submits that Robbins was discharged on July 13,
2010, in order to discourage employees from engaging in such activities and also because
Respondent believed that Robbins joined or assisted the Union in conjunction with these 45
activities.
JD(ATL)–30–11
11
Respondent characterizes Robbins complaints about Respondent’s failure to pay the
prevailing wage rate as simply personal complaints about “short pay.” Furthermore, Respondent
contends that Robbins engaged in disloyal behavior regarding perceived “illegals” and that “this
disloyalty was not concerted activity.” In his brief, counsel for Respondent characterized
Robbins actions as merely personal dislikes and “gripes” and asserts that Robbins’ opinions had 5
been known for years.
In cases involving an alleged violation of Section 8(a)(3) and (1) of the Act, an
employer’s motivation is frequently in issue. The Board’s causation test for evaluating such
cases that turn on the employer’s motivation was first established in the Board’s landmark 10
decision in Wright Line, 251 NLRB 1083, 1088 (1980). This test requires the General Counsel
to make a prima facie showing sufficient to support an inference that the employee’s protected
conduct motivated the employer’s adverse action. The essential elements of establishing
discrimination include protected activity that is known to the employer and hostility or animus
toward the protected activity. Western Plant Services, 322 NLRB 183, 194 (1996); Best 15
Plumbing Supply, 310 NLRB 143 (1993). Although not conclusive, timing is usually a
significant element in finding a prima facie case of discrimination. Equitable Resources
Exploration, 307 NLRB 730, 731 (1992). Unlawful motivation may be found based upon direct
evidence of employer animus toward the protected activity or it may be based on circumstantial
evidence. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004). 20
Although Respondent argues in its brief that the burden of proof never shifts to the
Respondent, the Board has held that if the General Counsel establishes a prima facie case, the
burden then shifts to the employer to persuade the trier-of-fact that the same adverse action
would have occurred even absent the employee’s protected activity. Best Plumbing Supply at 25
143. To meet this burden, an 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. Roure Bertrand Dupont, Inc., 271 NLRB 443
(1984). Furthermore, the mere presence of legitimate business reasons for disciplining or
discharging an employee does not automatically preclude a finding of discrimination. J.P.30
Stevens & Co., v. NLRB, 638 F. 2d 676, 681 (4th Cir. 1980). When, however, an employer
presents a legitimate basis for its actions that is found to be false or not in fact relied upon, the
respondent employer fails by definition to show that it would have taken the same actions for
those reasons, absent the protected conduct. Accordingly, there is no need to perform the second
part of the Wright Line analysis. Golden State Foods Corp., 340 NLRB 382, 385 (2003). “For a 35
finding of pretext necessarily means that the reasons advanced by the employer either did not
exist or were not in fact relied upon, thereby leaving intact the inference of wrongful motive
established by the General Counsel.” Limestone Apparel Corp., 255 NLRB 722 (1981).
2. Whether Robbins was engaged in protected concerted activity40
Section 7 of the Act protects the right of employees to engage in concerted activity for
their mutual aid and protection. Respondent depicts Robbins’ complaints about Respondent’s
failure to pay the prevailing wage rate as self-serving and aimed at correcting his own short pay.
Respondent urges that all discrepancies raised by Robbins were corrected and that such pay 45
discrepancies were fairly common occurrences for employees. With respect to Robbins’
concerns about non-English speaking employees and Respondent’s possible employment of
JD(ATL)–30–11
12
illegal immigrants, Respondent terms Robbins’ complaints as “disloyal” and merely “personal
dislikes” and “gripes.”
Respondent argues that Robbins’ complaints related to things other than collective
bargaining and also argues that complaints about issues common to more than one employee do 5
not constitute concerted activity unless a second employee joins in or authorizes the actions of
the single employee. Respondent argues that there is no evidence that Robbins was ever
authorized by other employees to raise the complaints about prevailing wage rate or about the
employment of the perceived illegal immigrants. Respondent characterizes Robbins’ actions as
solely for his own benefit as the result affected his own paycheck and his preference to work in 10
an atmosphere without individuals who were perceived as illegal.
In his testimony, Witcofski contended that while Robbins raised concerns about
prevailing wage and safety issues related to non-English speaking employees, Robbins never
“literally” said that he was bringing these concerns on behalf of other employees. Witcofski 15
asserted that because Robbins never came to him and prefaced his comments by identifying
himself as a representative of all of the employees, he (Witcofski) did not consider the comments
to be made on behalf of other employees.
In this case, there is no allegation that Robbins was accompanied by other employees 20
when he attempted to secure the prevailing wage rate on jobs or when he raised concerns about
Respondent’s possible employment of illegal aliens. Although he testified that he voiced
concerns about these issues to management at various times, he did so individually and not as a
part of a group effort. Only Robbins signed the letter to the Department of Labor and no one else
accompanied him to the Rogers Police Department on July 13, 2010. In essence, Robbins acted 25
alone in the pursuit of his concerns about the prevailing wage rate and about the employment of
the non-English speaking employees. The Board has long held, however, that group action is not
deemed a prerequisite to concerted activity and the single employee’s action may be the
preliminary step to acting in concert. Walls Mfg. Co., 128 NLRB 487, 493 (1960). Furthermore,
the Board does not require any proof of authorization in order to establish that a solitary 30
individual has engaged in concerted activity. On the contrary, the Board has found that an
individual is acting on the authority of other employees where the evidence supports a finding
that the concerns expressed by the individual employee are a logical outgrowth of the concerns
expressed by the group. Alchris Corp., 301 NLRB 182 fn. 4 (1991).
35
The record evidence reflects that Respondent’s failure to pay the prevailing wage rate
was an issue of concern to other employees and not simply a concern of Robbins. Respondent
was aware of the employees’ concerns from not only Robbins, but from complaints by other
employees. In April 2010, Witcofski was notified of the prevailing wage rate claim filed by
employee Kenneth Catron. Lee credibly testified that he conveyed these questions and concerns 40
from employees to Respondent’s management. The Board has long held that Section 7
“encompasses the right of employees to ascertain what wages are paid by their employer, as
wages are a vital term and condition of employment.” Triana Industries, 245 NLRB 1258, 1258
(1979). The Board has, in fact, termed wages as probably the most critical element in
employment, as well as “the grist on which concerted activity feeds.” Aroostook County45
Regional Ophthalmology Center, 317 NLRB 218, 220 (1995).
JD(ATL)–30–11
13
After Robbins experienced the electrical shock, the issue of the language barrier among
employees became a topic of discussion among employees. Although Robbins appears to have
been the only employee who actually experienced a specific safety risk as a result of the
language barrier, the potential risk to all employees was present. Accordingly, Robbins’ safety
concerns and complaints about Respondent’s possible employment of illegal immigrants 5
constituted concerted activity within the meaning of Section 7 of the Act. Wabash Alloys, 282
NLRB 391, 391 (1986).
3. Whether Robbins is otherwise removed from the protection of the Act
10
Respondent maintains that it did not know of Robbins’ contact with either Government
agencies or private organizations prior to his termination. Despite the fact that Respondent does
not assert that it based its decision to terminate Robbins on Robbins’ contact with any outside
entities, Respondent nevertheless contends that Robbins’ actions were disloyal and thus removed
him from the protection of the Act. Citing an Eighth Circuit decision in St. Luke Episcopal-15
Presbyterian Hospitals, Inc. v. NLRB3, Respondent contends that even within the bounds of
concerted activity, an employer does not have to tolerate employee misconduct that is flagrant or
that renders the employee unfit for employment. In the 2001 case cited by Respondent, a
registered nurse appeared on a local news broadcast and accused the hospital of jeopardizing the
health of mothers and babies by altering shift assignments and responsibilities of certain 20
registered nurses. The court found that such activity was not concerted activity protected by the
Act inasmuch as such activity disparaged the quality of patient care in a way guaranteed to
adversely affect the hospital’s reputation and the statements were materially false an misleading.
Respondent contends that while Robbins’ complaints regarding illegal workers were 25
false, such falsity and “discriminatory animus” are not the most fundamental problem.
Respondent asserts that Robbins contacted an anti-immigration advocacy group that shared his
views and prejudices. Respondent asserts that Robbins’ call to the advocacy group was solely
for the purpose of creating discord among Respondent’s work force and pitting some employees
against others. Respondent maintains that such action is the classic type of disloyalty that 30
forfeits any protection or remedy.
Although Respondent submits that Robbins’ conduct was not protected because his
complaints were false, the Board has held that an employee’s incorrect perceptions of working
conditions does not remove protected conduct based on those perceptions from the protections of 35
the Act. R.J. Liberto, Inc., 235 NLRB 1450, 1453 (1978). Additionally, the truth or falsity of a
communication is immaterial and is not the test of its protected character. Professional Porter &
Window Cleaning Co., 263 NLRB 136, 139 fn. 12 (1982).
Furthermore, there is no evidence that Robbins’ contact with the Immigration Reform 40
Law Institute (IRLI) constituted conduct that would lose the protection of the Act. The letter that
Robbins received from the IRLI approximately a month prior to his termination indicates that the
IRLI is a nonprofit public interest law firm whose mission is to end illegal immigration and to set
levels that are consistent with the national interest. In the June 9, 2010 letter to Robbins, the law
firm acknowledged receipt of Robbins’ request for legal assistance. The letter went on to 45

3 268 F. 3d 575 (8th Cir. 2001).
JD(ATL)–30–11
14
confirm that his inquiry would be treated confidentially and he was asked not to discuss with
third parties the information that he discussed with the firm. By the wording of this letter, there is
no indication that any of Robbins’ concerns about the potentially illegal workers would be
disseminated to other entities or to the public. Additionally, the letter indicates that Robbins
sought only legal assistance in his pursuit of the issue of illegal workers employed by 5
Respondent. Certainly, Robbins’ conduct is not at all similar to that of the registered nurse in the
case cited by Respondent. His conduct in this regard does not rise to the level of such flagrant
disloyalty and disruption of the workplace that Robbins would lose the protection of the Act.
Accordingly, Robbins’ complaints and concerns about the prevailing wage rate and 10
Respondent’s employment of non-English speaking employees and potential illegal immigrants,
as well as his additional actions in pursuit of those concerns, constitute protected concerted
activity.
4. Respondent’s knowledge of Robbins’ protected concerted activities15
Respondent asserts that Witcofski had no knowledge that Robbins filed a complaint with
the Department of Labor before his termination or that he spoke with any law enforcement
authorities concerning Respondent’s potential employment of illegal immigrants.
20
There is no question that in order for the Acting General Counsel to prove that
Respondent terminated Robbins because of his protected concerted activity and/or because of its
perception that Robbins was assisting the union, the Acting General Counsel must prove that
Respondent had knowledge of such activities or suspected activities. Knowledge of concerted
activities may, however, be shown by circumstantial as well as direct evidence. Famet, Inc., 202 25
NLRB 409, 410 (1973).
Chad Lee credibly testified that Robbins was a very outspoken employee who did not
hesitate to voice his concerns to Witcofski or McLeod. Lee recalled that Robbins voiced
concerns about Respondent’s employees who may have been illegal immigrants, as well as about 30
Respondent’s failure to pay the prevailing wage rate. Lee recalled that Robbins was the most
outspoken employee about the prevailing wage rate issue and he met with other employees in
small groups on the jobsite to talk about the issue. The employees subsequently presented their
questions to Lee and wanted him to do something about it. Lee acted as the intermediary and
passed along the questions and concerns to McLeod. There is no dispute that Respondent 35
adjusted Robbins’ pay in response to his discussions with management.
During one of the trips to El Paso and in Lee’s presence, Robbins telephoned a
Government agency to get more information concerning the prevailing wage issue. Witcofski
admitted that Robbins discussed with him shortages in pay related to the prevailing wage rate. 40
Witcofski also acknowledged that Robbins telephoned him while Robbins was working in El
Paso and reported that employees were concerned about Respondent’s failure to adequately
compensate them for their travel time to El Paso.
Witcofski also admitted that prior to his termination, Robbins raised safety concerns 45
about Respondent’s employment of non-English speaking employees and that Robbins raised
concerns about the incident when he was electrically shocked on the Academy Sports project.
JD(ATL)–30–11
15
Employee Catron testified that a couple of weeks prior to Robbins’ termination, Robbins told
him that he intended to report Respondent’s employment of illegal immigrants to immigration or
law enforcement officials.
As discussed above, Robbins contacted the Immigration Reform Law Institute (IRLI) 5
prior to June 9, 2010. Because he considered Keen to be a personal friend, Robbins told Keen
about this contact. He also told Keen that even after this inquiry, he was not seeing any results.
Robbins testified that on July 12, 2010, he told Keen that he was going to the Rogers Police
Department in hopes that they could direct him to the appropriate agency with which he could
speak about this issue. Robbins also testified that in early July, Keen told him that Witcofski had 10
instructed him to “keep an eye” on Robbins and to report back if Keen heard Robbins discussing
issues relating to prevailing wages or illegal immigrants on the job.
Counsel for the Acting General Counsel submits that Robbins told Keen about both his
letter to the Department of Labor as well as his intention to go to the Rogers Police Department 15
on July13. Counsel asserts that Robbins did so only days after Witcofski told Keen to keep an
eye on Robbins and to report any activities relating to the prevailing wage issue or the illegal
employee issue. Counsel for the Acting General Counsel submits that Robbins’ discharge
within 24 hours of his contact with the Department of Labor and during the time that he was at
the Rogers Police Department seeking to report Respondent to immigration authorities, provides 20
a strong nexus to infer animus. In addition to animus, knowledge may also be inferred from such
circumstantial evidence as the timing of the alleged discriminatory action. Greco & Haines, Inc.,
306 NLRB 634 (1992); General Iron Corp., 218 NLRB 770, 778 (1975).
Even when an employer may argue that there is no direct evidence that it had knowledge 25
of the employees’ protected activity; the Board has found that such knowledge may be inferred
from the record as a whole. Petroleum Electronics, Inc., 250 NLRB 265, 269 (1980), citing
Wiese Plow Welding Co., 123 NLRB 616, 618 (1959). When inferring knowledge, the Board
has considered not only the timing of the alleged discriminatory actions, but also the employer’s
general knowledge of the employees’ protected activities, as well as the pretextual reasons given 30
for the adverse personnel actions. Regional Home Care, Inc., 329 NLRB 85 (1999).
Robbins testified that he told Keen that he had filed the Department of Labor complaint
and of his intentions to go to the Rogers Police Department to report Respondent to the
immigration authorities. Although Keen denies that Robbins did so, I do not credit Keen’s 35
testimony in this regard. As discussed more fully below, I found Keen’s testimony to be
contradictory and overall incredible. As a lower level supervisor working for an essentially
family-owned and managed entity, it is reasonable that Keen’s testimony was influenced by
concerns for his own job security and thus it is not surprising that his testimony was consistent
with Witcofski’s testimony. Based upon Robbins’ past interaction with Keen, as well as the 40
apparent personal relationship they shared, it is reasonable that Robbins would have shared with
Keen his intentions to pursue both the issue of the prevailing wage rate as well as his concerns
about the alleged illegal immigrants. Crediting Robbins’ testimony, I also find that Keen’s
knowledge as a stipulated supervisor is imputed to Respondent. Dickey John Corp., 237 NLRB
143 fn. 8 (1978); Cavender Oldsmobile Co., 181 NLRB 148 fn. 6 (1970). As the Board has 45
noted, imputation of a supervisor’s knowledge of protected activity is not a novel concept but
rather a concept that is recognized under established case law. State Plaza Inc., 347 NLRB 755
JD(ATL)–30–11
16
(2006); Dobbs International Services., 335 NLRB 972, 973 (2001); Dr. Phillip Megdal, D.D.S.
Inc., 267 NLRB 82 (1983).
Furthermore, I credit Lee’s testimony concerning Respondent’s suspicions that Robbins
was collaborating with Richards. In early 2010 and continuing through the summer, Richards 5
actively sought to organize Respondent’s employees. As a part of his salting activities, Richards
reported Respondent to OSHA for any perceived safety violations. As discussed later in this
decision, Witcofski told employees in his October meeting about the fines that resulted from
Richards’ action. Thus, it appears that based upon Lee’s credible testimony, Respondent
suspected that Robbins was collaborating with the Union to target Respondent for governmental 10
scrutiny. The fact that Respondent terminated Robbins within hours of his stated intentions and
his contact with the Department of Labor and ICE further reinforces Lee’s testimony.
Accordingly, I find that the Acting General Counsel has met its burden of establishing
Respondent knowledge of Robbins’ protected concerted activity. 15
5. Evidence of the motivational link
As discussed below, I find that the overall evidence reflects a nexus or motivational link
between Robbins’ protected activity and Respondent’s precipitous decision to terminate him on 20
July 13, 2010. Respondent’s contention that it relied upon Robbins’ attendance for the previous
as the basis for termination is suspect based upon the total record evidence.
Respondent’s employees do not use time clocks or any other automated means of
recording their attendance. Foremen are responsible for determining whether employees are 25
present at the beginning of a shift and this information is then communicated to Respondent’s
office on a daily basis for purposes of payroll preparation. In his job as internal control officer,
Lee received the daily reports from the foremen and then forwarded the information to McLeod.
The record reflects that Respondent does not have a standardized attendance policy or a
progressive discipline system in place. Lee explained that the attendance policy was not “set-in-30
stone” and was based on work performance. Lee testified that if an employee had a valid reason
for an absence or if the employee contacted a foreman or project manager in advance, the
attendance policy was “pretty lenient.” In contrast, if an employee was not a hard worker and
didn’t know what he was doing, his failure to report to work would then become a problem.
35
Clerical employee Denise Rusco further corroborated Lee’s testimony concerning
leniency. In Respondent’s meeting with employees on October 15, 2010, Rusco spoke with the
employees about the attendance policy in place. She reminded employees that they missed work
on a regular basis for various reasons other than being ill. She added that while they did so and it
was “no problem,” they could not do that if a union represented them. 40
Witcofski concedes that he did not make the decision to terminate Robbins until the
morning of July 13. He contends that it was at that time that he looked back to prior dates when
Robbins was either absent or when he came in after the scheduled starting time. Witcofski
testified that if an employee is going to be late or will be unable to come in to work on a 45
scheduled workday, he is to contact his foreman and/or the office. Robbins does not dispute that
JD(ATL)–30–11
17
he came to work after the scheduled starting time on July 7 and 10. He maintains however, that
he notified his foreman in advance of his doing so.
Keen was Robbins’ foreman for only about 2 weeks prior to Robbins’ termination. When
presented by the Respondent as a witness, Keen testified that Robbins did not report to work at 5
the scheduled starting time on July 7, 10, and 13. He maintained that on each occasion Robbins
did so without giving any advance notice. He also testified that each time he reported to
Witcofski that Robbins was not present at the scheduled starting time; he had also reported to
Witcofski that Robbins had not given advance notice that he would be late.
10
The Acting General Counsel introduced Robbins’ telephone records for July 6, 2010, to
show a call to Keen from Robbins at 6:56 p.m. that lasted 1 minute. The record also reflects an
8-minute call from Keen to Robbins at 8:01 p.m. on that same day. Although he did not explain
what had been discussed in those conversations, Keen nevertheless claimed that the calls had not
involved Robbins’ reporting that he would be late the next morning. Robbins’ telephone records 15
also reflect that Robbins had a 4-minute telephone conversation with Keen at 5:46 p.m. on July
9, 2010. Keen admitted that he could not recall what was discussed in this call and that it is
possible that Robbins may have told him that he would have to be late coming in on July 10.
Upon inquiry by Respondent’s counsel, Keen also testified that Robbins was absent from work
on July 6, 2010, without notice. He denied that he later checked his records to discover that 20
Robbins had been present. He did not, however, explain or contradict the July 19, 2010
document confirming that Robbins was paid for working 10 hours on July 6, 2010. Despite
Keen’s assertion that he reported all of the late arrivals, as well as the alleged July 6 absence to
Witcofski, neither Keen nor Witcofski presented any evidence that they discussed or considered
discipline for Robbins because of these absences. 25
Keen also denied that Robbins told him anything about his intention to go to the Rogers
Police Department on July 13 to file an ICE complaint. He confirmed, however, that he received
telephone calls from Robbins on both July 12 and 13. He did not dispute that Robbins made a 2-
minute call to him at 5:11 p.m. or that Robbins made a 6-minute call to him at 5:31 p.m. on July 30
12. Additionally, he did not deny that Robbins made a 1-minute call to him at 7:03 p.m. later
that same evening. Finally, he did not deny that Robbins also made an 8-minute call to him at
11:38 on July 13. On cross-examination, Keen could not recall what was discussed in any of the
telephone conversations with Robbins on either July 12 or 13. He further acknowledged that
during the telephone conversations with Robbins on July 12, it is possible that Robbins told him 35
that he would not be in the next morning. When asked if it were possible that Robbins told him
on July 13 that he was pursuing the immigration issue, he simply answered that he didn’t
remember what he had discussed with Robbins on July 13.
In his testimony, Keen consistently denied that he had ever been aware of the United 40
States Department of Labor claim that Robbins filed and he also denied that Robbins had ever
discussed any concerns about immigration issues or about prevailing wage issues. Furthermore,
Keen claimed to be unaware that any employees had safety concerns about working with non-
English speaking employees. Keen also denied knowing that any of the employees had their
names changed while working for Respondent. He did, however, acknowledge that he had 45
worked for Respondent for 5 years and had been on previous jobs with Robbins as a fellow
crewmember. Although he asserted that he was more acquaintance than friend with Robbins, he
JD(ATL)–30–11
18
acknowledged that they kept in “pretty regular communication.” He confirmed that he had not
only given Robbins a ride to work, but he had also loaned Robbins his car to get to work when
Robbins had worked on the Sports Academy project.
Although Keen was only asked about his 11:28 a.m. telephone conversation with Robbins 5
on July 13, 2010, Robbins’ telephone records reflect a total of five telephone contacts with Keen
on July 13, 2010. Robbins’ calls to Keen at 12:41 p.m. and at 3:54 p.m. only lasted 1 minute and
2 minutes respectively. At 8:25 p.m., a call was placed from Robbins to Keen that lasted 2
minutes. The more interesting call, however, is the call from Keen to Robbins at 9:35 p.m. that
lasted for 18 minutes. Although Keen appeared to play down his relationship with Robbins in 10
his testimony, Robbins’ telephone records suggests that they were more than mere
acquaintances. At the time of the last telephone conversation on July 13, 2010, Robbins had
already been notified that he was terminated and there was no longer a work relationship
between Robbins and Keen. If there was no longer a working relationship, it is logical that their
discussion at this time of the day for 18 minutes was of a personal nature. Moreover, because 15
there appears to have been a personal relationship, it is reasonable that Keen was well aware of
Robbins’ concerns about not only the prevailing wage issue, but also the issue involving possible
illegal immigrants and non-English speaking employees. Other employees who testified were
well aware of Robbins’ concerns about both these issues. Lee credibly testified that he had
reported to management that Robbins had raised these concerns and that Robbins and his 20
complaints had been discussed in the morning management meeting. Even Witcofski
acknowledges that Robbins complained to him about not being paid the prevailing wage rate.
For Keen to assert that he had no knowledge of Robbins’ complaints and concerns is simply not
credible. Furthermore, Witcofski acknowledged that two of his Hispanic employees changed
their names and identification prior to Robbins’ discharge. Employees and foremen were 25
notified of the change and foremen were instructed to use the employees’ new names for their
records. It is simply not credible that Keen had no knowledge that these employees changed
their names and identities.
As I write this decision, I cannot say with certainty how Witcofski discovered that 30
Robbins went to the Arkansas Police Department on July 13, 2010, to file an ICE report. The
total record evidence, however, supports an inference that Respondent knew about Robbins’
protected concerted actions on July 13, 2010. Counsel for the Acting General Counsel submits
that in early July, Keen told Robbins that Witcofski instructed him to “keep an eye on “ Robbins
and report back to Witcofski if he heard Robbins discussing issues relating to prevailing wages 35
or illegal immigrants. Counsel for the Acting General Counsel asserts that Keen did as he was
instructed. It is apparent that either Keen or some of the other employees disclosed Robbins’
intentions to Witcofski or other management. Furthermore, Witcofski testified that he had an
affiliation with the local Sheriff’s department and his personal ties with law enforcement may
have been a factor in his discovering Robbins’ actions on the morning of July 13, 2010. The 40
undisputed evidence reflects that something happened on July 13 to trigger Witcofski’s decision
to terminate Robbins. Although Witcofski asserts that it was Robbins’ absence on July 13 that
led to his selection for layoff, the overall record does not support his assertion. Although there is
no evidence that Robbins had received any prior discipline or even any counseling concerning
his attendance, Witcofski seized upon attendance as a basis for terminating Robbins. Although 45
Keen initially testified that Robbins did not give any notice for his alleged absence on July 6 and
his late arrivals on July 7, 10, and 13, he later acknowledged that he had telephone conversations
JD(ATL)–30–11
19
with Robbins on the evenings of July 6, 9, and 12 and he could not dispute that Robbins may
have given notice that he was going to be late on July 7, 10, and 13. Although Keen contended
that Robbins did not come to work on July 6, he could not dispute that Robbins was later
compensated for hours worked on July 6. Overall, I do not find Keen’s testimony to be
consistent or plausible in light of other record evidence. His denial that he was aware of 5
Robbins’ concerns about the prevailing wage and Respondent’s employment of non-English
speaking employees, as well as possible illegal immigrants is simply not credible in light of the
testimony of Lee and other employees. Even Witcofski acknowledges that Robbins discussed
these issues with him. Therefore, Keen’s adamant denials are all the more suspect and
unsupported by the total record evidence. 10
Lee credibly testified that Robbins’ complaints and issues were a topic of discussion in
the morning management meetings. Lee also credibly testified that there was discussion that
Robbins might be involved in giving information to Richards to use in his union campaign.
Witcofski’s statements in his October 15, 2010 employee meeting reflect his concerns about the 15
Union’s organizational efforts.
Based upon the record evidence as a whole, I find that counsel for the Acting General
Counsel has met its burden in showing the requisite animus that is required for establishing a
prima facie case that Respondent’s termination of Robbins was discriminatorily motivated.20
6. Whether Respondent has demonstrated that it would have terminated Robbins
in the absence of his protected concerted activity
As I have discussed above, I credit Robbins’ testimony and find that he provided advance 25
notice to Keen for any alleged tardiness or absences during the period of time that Respondent
relied upon as a basis for Robbins’ termination. Even if Robbins had not given notice as he
alleges, the record reflects that Robbins’ was treated disparately.
Respondent contends that during the 2 weeks before his termination, Robbins had 30
repeated tardies and absences that were the legitimate reason and cause for his termination. In its
posthearing brief, Respondent asserts that it terminated at least seven other employees for
attendance policy violations within weeks or days before and after Robbins’ discharge and cites
six exhibits in support of this assertion. The exhibits upon which Respondent relies, however,
indicates that none of the employees referenced by Respondent were terminated under similar 35
circumstances to Robbins. Only three of the referenced employees were terminated before
Robbins. Of the six termination notices, only one employee is documented as an involuntary
termination; the remaining employees are documented as voluntary terminations.
The termination slip for Jorge R. V.4 (whose name had been changed from Rudy C) was 40
considered to be a voluntary termination on July 12, 2010 because of “no call, no show.” The
underlying paperwork, however, reflects that Jorge R. V. reported a non-work related eye injury.
The employee reported that he was going to the clinic to have his eye checked and he was
instructed to let the office know when he could return to work. Employee Christopher O. was

4 R Exh. No. 28.
JD(ATL)–30–11
20
documented as a voluntary termination5 on June 29, 2010, based upon his walking out on the job
on June 25, 2010. Employee Jesse S.’s July 9, 2010 termination6 is documented as involuntary.
The wording on the separation notice designates the basis for the termination as simply
“Replaced/not a good fit.” In further explanation, the notice includes: “We have an uneasy
feeling about staying committed and being able to go out of town on a regular basis.” 5
Employee Nathaniel H. was documented as a voluntary termination7 on September 16,
2010, for “no call, no show.” Employee Kenneth C.’s July 26, 2010 separation from
employment is documented as a voluntary termination for personal reasons8. In the remarks
section of the separation notice, Respondent documents that Kenneth C. did not show up 10
reporting an injury to his ankle. When told to report to work anyway to do work that did not
require his being on his feet, the employee refused. His file also contains a June 24, 2010 notice
of employee nonconformance, confirming that the June notice was his third notice of
noncompliance, which includes a removal from assignment. Employee Thomas S. is
documented as receiving a voluntary termination for personal reasons9 on July 14, 2010. The 15
comments section of the form includes the wording: “Thomas said that he can’t handle the
roofing work.”
Counsel for the Acting General Counsel also submits that during the period of time from
January 1through December 31, 2010, Respondent did not discharge any other employees for 20
excessive absenteeism/tardiness. Although Respondent asserts that it terminated Robbins
because of his attendance during the 2-week period prior to his termination, Robbins received no
attendance-related discipline prior to his discharge. The record reflects, however, that
Respondent has treated other employees with far more tolerance than Robbins. On November
11, 2009, Respondent terminated employee Trevor L. for “no call/no show.” Respondent 25
apparently rehired him as he later received employee nonconformance actions on September 10
and October 18, 2010, for conduct related to attendance. On March 23, 2011, Trevor L. was
again given an employee nonconformance action for showing up late to work and on May 4,
2011, his tardiness to work was excused when he contended that he had told his foreman prior to
starting time that he would be late. In contrast to Respondent’s abrupt treatment of Robbins, 30
Respondent not only rehired Trevor L., but has also continued to employ him despite his
attendance infractions.
The Board has found that under Wright Line, an employer cannot carry its burden of
persuasion by merely showing that it had a legitimate reason for imposing discipline against an 35
employee, but it must show by a preponderance of the evidence that the action would have taken
place even without the protected conduct. Hicks Oils & Hicksgas, Inc., 293 NLRB 85, 95
(1989).
The failure of an employer to show that it has treated employees in the past in a similar 40
manner for engaging in similar misconduct to that of the alleged discriminate has been found to

5 R Exh. No. 30.
6 R Exh. No. 31.
7 R Exh. No. 29.
8 R Exh. No.18.
9 GC Exh. No. 28.
JD(ATL)–30–11
21
be a significant defect in the employer’s meeting its Wright Line burden. 10 Ellicott Square
Corp., 320 NLRB 762, 775 (996), enfd. 104 F. 3d 354 (2d Cir. 1996). Respondent’s records
reflect that Robbins was not treated similarly to other employees and the terminations cited by
Respondent have little or no relevance to Respondent’s treatment of Robbins. Accordingly, the
evidence of disparate treatment does not support the Respondent’s position and diminishes its 5
ability to meet its burden under Wright Line. Pope Concrete Products, 305 NLRB 989, 990
(1991).
The overall evidence supports a finding that Respondent seized upon Robbins’
attendance as a pretext to terminate Robbins for his protected concerted activity and because of 10
Respondent’s suspicions that Robbins was assisting the Union. Robbins’ attendance was never a
problem for Respondent until Robbins took his concerns to the Department of Labor and the
local law enforcement authorities. There are a number of factors that lead me to conclude that
Respondent’s asserted reason for Robbins’ discharge is pretextual. As I have discussed above,
the timing of Robbins’ discharge is suspect. Although Witcofski contends that Robbins’ absence 15
from work at the scheduled starting time on July 13, 2010, triggered his investigation into
Robbins’ attendance for the previous 2 weeks, there is no evidence that Robbins was disciplined
or even counseled about his attendance prior to that date. Keen testified that each time that
Robbins was late during this 2-week period, he reported to Witcofski that Robbins was late or
absent without notice. As I have discussed above, I do not credit Keen’s testimony in this 20
regard. If I were to find this testimony to be credible, however, it begs the question as to why
Witcofski decided to terminate Robbins on July 13 when Respondent had allegedly known that
Robbins had been late or absence without notice during the entire 2-week period.
An additional factor in demonstrating pretext is Respondent’s shifting reasons for 25
terminating Robbins. Initially, Robbins received a termination notice showing that he was
involuntarily terminated for excessive absenteeism/tardiness. Respondent does not dispute that
after Robbins applied for unemployment benefits with the Arkansas Department of Workforce
Services, Respondent amended Robbins’ termination notice to reflect that he was laid off for
lack of work. Although Witcofski told Robbins that he amended the notice in order that Robbins 30
could be eligible for unemployment benefits, Witcofski’s modification of the termination notice
contradicts his assertion that Robbins’ attendance was so pronounced that it triggered his
termination. Witcofski’s modification further raises the obvious question. If Robbins’
attendance was so repugnant that it required his immediate termination without any underlying
discipline, why did Respondent tell the State agency otherwise?35
A third factor in demonstrating Respondent’s pretext in terminating Robbins is
Respondent’s attempt to augment its rationale for the termination. Although the initial
termination slip for Robbins’ indicated that he was involuntarily terminated because of excessive
absenteeism/tardiness, Witcofski asserted at trial that Robbins’ termination was also based upon 40
other factors. He cited such factors as “unpredictability of his physical actions;” how he got
along with other employees on the jobsite; and his job performance on the Academy Sports
project. Witcofski admitted that when he gave an affidavit to the Board 4 months prior to his
testimony, he never mentioned anything about Robbins’ work deficiencies on the Academy
Sports job. Witcofski also admitted that Robbins did not receive any nonconformance actions 45
because of his work on the Academy Sports job. Witcofski further asserted that he added a
nonconformance action to Robbins’ file on July 9, 2010, because of an altercation between
JD(ATL)–30–11
22
Robbins and another employee. Although the document describes a threat that Robbins
allegedly made to a fellow employee, there is no confirmation that any discipline was given to
Robbins or that any supervisor discussed this incident with Robbins. Witcofski further
acknowledged that although Robbins had been involved in a physical altercation with employee
Jarrid Giese in September 2009, he was not terminated for the incident. Although Robbins quit 5
his job with Respondent to take another job on September 29, 2009, Respondent rehired Robbins
on October 15, 2009. Thus, the only nonconformance action form in Robbins’ file other than the
one for September 2009 is the form that Witcofski contends that he added on the morning of July
9, 2010.
10
The Board has held that, where an employer’s asserted reason for termination is found to
be a pretext, by definition, the employer has failed to meet its burden under Wright Line.
Metropolitan Transportation Services, 351 NLRB 657, 660 (2007); Limestone Apparel Corp.,
255 NLRB 722 (1981), enfd. 705 F. 2d 799 (6th Cir. 1982).
15
Based upon the credited evidence, I conclude that Respondent has failed to demonstrate
with a preponderance of the credible evidence that it would have terminated Robbins in the
absence of his protected concerted activity.
7. Whether Robbins has forfeited his right to reinstatement and backpay20
There can be no dispute that the Board is authorized under Section 10(c) of the Act to
remedy unfair labor practices with “such affirmative action including reinstatement of employees
with or without back pay, as will effectuate the policies of the Act.” Fibreboard Paper Products
Corp. v. NLRB 379 U.S. 203, 215 (1964). Accordingly, reinstatement and backpay are the 25
traditional Board remedies for a discriminatory discharge. Precoat Metals, 341 NLRB 1137,
1138 (2004). Respondent contends, however, that Robbins had forfeited his right to
reinstatement and backpay because of his criminal convictions.
Respondent acknowledges that during the time that Robbins was employed, Respondent 30
was aware that Robbins had a criminal record. Respondent even confirms in the posthearing
brief that such records are not particularly unusual for steel connectors. Respondent contends,
however, that after Robbins’ termination, it discovered the “severity and nature of this criminal
record. Respondent maintains that had Robbins been employed when this information was
discovered, he would have been terminated and if the information had been known when a hiring 35
decision was made, Robbins would never have been hired in the first place.
Although Robbins does not dispute that he had felony convictions in 1996, 1997, 2001,
and 2005 involving theft, burglary, and robbery, he also testified that Respondent hired him after
his serving a prison sentence for the 2005 conviction. Although a portion of Robbins personnel 40
file was introduced into evidence, Robbins original application and date of hire are not included.
There is nothing in the file, however, to contradict Robbins assertion that Respondent first hired
him after his 2005 conviction. The file reflects that Robbins left Respondent’s employment on
November 3, 2008, to take another job. Respondent hired him again on January 2, 2009.
Robbins personnel file reflects that later in the year, Robbins again resigned his employment on 45
September 29, 2009, to take another job. On October 15, 2009, Robbins was rehired. While it is
apparent that Respondent hired Robbins on three separate occasions, there is no evidence that
JD(ATL)–30–11
23
Respondent ever inquired as to whether Robbins had prior criminal convictions or any criminal
background. Although Witcofski asserted that he had not been allowed to have any felons
working on the Army Corps of Engineer’s job, he also admitted that he had heard that Robbins
had a criminal conviction during Robbins’ employment.
5
As counsel for the Acting General Counsel points out, there is nothing in Respondent’s
employee handbook that that sets forth a policy relating to pre or posthire criminal convictions.
Furthermore, Respondent presented no evidence that it had ever discharged an employee for
having a criminal background.
10
Respondent does not contend that Robbins’ prior convictions affected his previous work
performance or his ability to get along with other employees and Respondent does not explain
with any specificity how Robbins’ convictions would affect his work performance or ability to
get along with fellow employees in the future. Respondent has not demonstrated how Robbins’
presence would have a disruptive effect because of his prior convictions. Respondent simply 15
contends that Robbins’ “theft and dishonesty” places Respondent at significant risk, and thus
would warrant immediate discharge. In considering the effect of a criminal conviction on the
issue of an employee’s reinstatement, the Fourth Circuit pointed out that “It is not the fact that
employees have been convicted of crime that renders them ineligible for reinstatement, but the
fact that they have been guilty of unlawful conduct which would make their presence undesirable 20
because of the disruptive effect which it would have upon the employer’s business.” National
Labor Relations Board v. Longview Furniture Co., 206 F. 2d 274, 276 (4th Cir. 1953).
In the instant case, Robbins had a number of convictions prior to his working for
Respondent. Although Respondent contends that it can not take Robbins back because of these 25
prior convictions, Respondent apparently made no inquiry concerning whether Robbins had a
criminal record at any of the three times that Respondent hired Robbins. Even after Witcofski
admittedly learned that Robbins had a prior conviction while he was employed, Witcofski
apparently made no attempt to get additional information. Robbins also acknowledges that in
November 2010 and after his termination, he was charged with, and pled guilty, for the theft of a 30
disposal head for a toothbrush. Robbins testified that at the time he and his wife were
experiencing financial problems and he admits that what he did was “foolish.” At the time of
this last incident, there had been a period of 5 years’ since his previous conviction. It was during
this same 5-year period that he was hired by Respondent on three separate occasions.
Respondent has presented no evidence to show that Robbins’ mistake in November 2010 is of 35
such a nature that it would have a disruptive effect on Respondent’s business if Robbins returned
to work. Accordingly, I do not find that Respondent has demonstrated that Robbins’ conviction
in 2010 or the previous convictions prior to 2005 would result in the forfeiture of Robbins’ right
to reinstatement or backpay.
40
8. The effect of prior convictions on Robbins’ credibility
I cannot leave the issue of Robbins’ prior convictions without addressing the issue of the
their effect on Robbins’ credibility. I am mindful that under Rule 609 (a)(2) of the Federal Rules
of Evidence, evidence of prior convictions is admissible to attack credibility when it readily can 45
be determined that establishing the elements of the crime required proof or admission of an act of
dishonestly or false statement by the witness. In finding that Respondent discriminatorily
JD(ATL)–30–11
24
terminated Robbins, I have relied in part on the pretextual nature of Respondent’s asserted basis
for the discharge, as well as the abrupt timing and circumstances of Robbins’ discharge.
Although I have credited Robbins’ testimony that he engaged in protected concerted activity
before his termination; Robbins’ testimony was also corroborated by other employees as well as
management. Both Lee and Witcofski corrobated Robbins’ testimony concerning his complaints 5
about Respondent’s failure to pay the prevailing wage rate, Respondent’s failure to pay travel
time, and the safety concerns about Respondent’s employment of non-English speaking
employees. The responding letters from not only the United States Department of Labor, but also
the IRLI further corroborate Robbins’ testimony concerning his contacts with government and
outside agencies. 10
I have also credited Robbins’ testimony that he notified Keen prior to his coming to work
late on July 7, 10, and 13. For the reasons described above, I did not find Keen’s testimony
credible in this regard. Furthermore, Robbins’ testimony is further corroborated and bolstered by
Robbins’ telephone records. 15
Thus, while I have credited Robbins, I have not relied solely upon his testimony for my
ultimate finding. It is apparent that prior to his working for Respondent, Robbins’ engaged in
conduct that could arguably raise the issue of honesty. Unfortunately, he again engaged in
similar conduct after his termination when he found himself in financial difficulty. Counsel for 20
the Acting General Counsel submits that the mere presence of criminal convictions in Robbins’
background does not automatically render him an incredible witness.
In crediting his testimony, I have considered Robbins’ testimony as a whole, and
particularly his demeanor as a witness. Despite his prior criminal conduct and the November 25
2010 incident, I am nevertheless persuaded that in this proceeding he was truthful.
F. Respondent’s October 15, 2010 Meeting with Employees
1. Background30
Richards recalled that in or about the last week of September or the first week of October
2010, he sent a letter to Respondent’s employees. The letter reiterated the Union’s interest in
organizing Respondent’s employees and discussed a variety of subjects including the range of
union benefits, as well as the amount of union dues. Richards followed up the letter by sending a 35
number of text messages to Respondent’s employees. On about October 14, 2010, Richards
learned from Robbins that Respondent had scheduled a mandatory meeting for employees at
Respondent’s Rogers, Arkansas office to address Richards’ text messages and letter. Richards
contacted employee Jarrid Geise and asked him to record the meeting. In exchange for $100 and
a set of bolt bags, Giese agreed to do so. Richards met with Giese in Centerton, Arkansas and 40
gave him a digital recording device to use in recording the meeting.
After the meeting on October 15, Giese telephoned Richards and confirmed that he had
the recording and that the quality of the recording was good. Richards testified that after an
initial attempt to get more money from Richards for the recording, Giese ultimately turned over 45
the digital recording device for the $100 and Richards’ assurance that the bolt bag was
forthcoming. Richards then saved the recording to his computer, transcribed the recording, and
JD(ATL)–30–11
25
provided a copy of the recording and the transcript to the Board’s regional office. The complete
transcript and a copy of the digital recording were received into evidence.
The Acting General Counsel asserts that during the course of the meeting, Respondent,
acting through Witcofski and clerical Denise Rusco, engaged in conduct in violation of Section 7 5
of the Act. Specifically, the Acting General Counsel alleges that during the course of the
meeting, Respondent not only unlawfully interrogated employees about their union activity, but
also made various threats to employees. The Acting General Counsel further submits that while
acting as an agent of Respondent, clerical Denise Rusco promulgated a rule prohibiting
employees from discussing working conditions with each other or with any outside party. 10
2. Witcofski’s presentation to employees
a. Alleged interrogation and complaint paragraph 7(a)
15
The meeting began with some discussion about work related matters and scheduled future
projects. Witcofski discussed the fact that in a non-union setting, ironworkers simply have to
show by testimony, affidavits, paychecks, etc. that they have worked for or with iron for three
years in order to qualify as journeymen. He contrasted that with the union’s qualifications;
requiring an employee to demonstrate that he or she worked under a specific journeyman for six 20
thousand hours in addition to the completion of the apprenticeship program. Witcofski told the
employees that he planned to start an apprenticeship program. He explained that Respondent
would only select apprentices that “truly have it in their heart to want to be journeymen.”
Although experience would be a factor, Respondent would also select employees for the program
based upon their work attitude, attendance, and other things. After talking with the employees 25
for about 51 minutes, Witcofski then asked the employees if they had received a letter from the
Union. Witcofski inquired:
Um, has anybody gotten a letter, from the union? OK well Denise did. Somebody else
who else got a letter? Somebody else got a letter, I thought.30
Witcofski then explained that Denise Rusco would come into the meeting, read portions of the
letter to the employees, and “testify,” as her husband had been around the Union all his life.
Analysis35
Respondent submits that alleged interrogations are analyzed using the test set out in
Bourne v. NLRB, 332 F. 2d 47 (2d. Cir.1964). Respondent lists these factors as (a) the history of
the employer’s attitude toward its employees; (2) the type of information sought or related; (3)
the company rank of the questioner; (4) the place and manner of the conversation; (5) the 40
truthfulness of the employee’s responses; (6) whether the employer has a valid purpose in
obtaining the information; (7) if so, whether this purpose was communicated to the employee,
and (8) whether the Employer assures employees that no reprisal will be taken if they support the
Union. Although Respondent acknowledges that Witcofski is Respondent’s” top dog,”
Respondent submits that Witcofski has a history of good employee relations and the information 45
that he sought was not about union sympathies. Respondent also contends that Witcofski had a
valid purpose in finding out how broadly the letters were distributed because the letters contained
JD(ATL)–30–11
26
“patently” false statements about Respondent. Furthermore, Respondent asserts that while
Respondent’s legitimate purpose for the question was not expressly stated, it was implied and the
questions were tempered when Witcofski occasionally stated in his speech that he didn’t care if
employees joined the Union. Finally, Respondent points out that the remarks were not made in
one-on-one meetings, but occurred during an open public meeting in a congenial atmosphere. 5
Contrary to Respondent’s arguments, I find that Witcofski’s questioning constituted
unlawful interrogation in violation of Section 7 of the Act. Respondent argues that Witcofski has
a history of good employee relations and that the questioning took place in a public setting as
opposed to questioning in a more formal setting. The Board has long found, however, that even 10
a personal friendship between the interrogator and the employee cannot legalize conduct that
would otherwise be unlawful. Mayfield Dairy Farms, Inc., 225 NLRB 1017, 1019 (1976). In
fact, an interrogation by a friendly supervisor may have a far more coercive impact on an
employee than an interrogation by a hostile agent of management. Allied Lettercraft Co., 272
NLRB 612, 617 (1984) citing Mayfield Dairy at 1019.15
Respondent also argues that Witcofski was not seeking information about the employees’
union sympathies and was only inquiring as to whether they received a copy of the Union’s
letter. Furthermore, Respondent asserts that since none of the employees responded that they
had received a copy of the letter, the truthfulness of the employees’ responses is not a factor in 20
the analysis. Counsel for the Acting General Counsel submits, however, that these questions
were directed toward employees who had not revealed whether they were or were not union
supporters. Counsel maintains that the fact that there were no audible responses to this
interrogation confirms that employees reasonably understood its coercive effect. I agree.
Richards engaged in an active campaign to reach Respondent’s employees, including both letters 25
and texts to employee. Based upon the extent of his efforts, it is unlikely that John Rusco was
the only employee to receive a copy of this letter. The fact that none of the employees
acknowledged receipt of the letters indicates their reluctance to disclose to Witcofski that the
union had contacted them. Such reluctance by the employees demonstrates the coercive nature
of the questioning. Although Respondent asserts that the mere receipt of the letter would not 30
have indicated the employees’ union views, the employees’ silence indicate that they may have
believed otherwise.
Furthermore, although Respondent may not have specifically asked each employee about
their own union sympathies, Witcofski’s questioning was clearly an attempt to find out 35
information about the extent and effectiveness of the union’s organizing efforts and the
employees’ involvement, and as such were coercive within the meaning of Section 8(a)(1) of the
Act. Crown Cork & Seal Co., 308 NLRB 445, 449–450 (1992), decision vacated on other
grounds 36 F.3d 1130 (D.C Cir. 1994).
40
b. Alleged Threats
(1) Complaint paragraph 7(b)
As Witcofski continued, he remarked that in previous flyers, the union told employees 45
that Respondent’s office employees received health insurance benefits. Witcofski asserted that
these were lies, as even he did not have health insurance through the company. He opined that
JD(ATL)–30–11
27
health care coverage would probably run about $10,000 a month for his employees. He
explained that he was “all for” health care if his competitors had to provide it as well. He told
the employees that the union admitted in its letter that they were targeting Respondent because it
was a big company in North West Arkansas and had had a lot of employees. Witcofski went on
to state the following:5
OK, I have a legal right to tell you this. If you think I’m lying that’s your
prerogative, but if we were union, talking about Wil-Shar, we would go broke. I
didn’t say we will. I said we would go broke and we would have to close our
business down because my competitors are not union, very similar to the health 10
insurance thing you see? So the point is, is that, that would do nothing for North
West Arkansas, it would do nothing for Wil-Shar, ah as much as we are struggling
now, and we can’t get everybody health Insurance, why would we want to be
union? OK?
15
(2) Complaint paragraph 7 (c)
Witcofski then talked about how the company lost money on a recent job and the
increased costs for worker’s compensation coverage. He hypothesized that if all of the
companies became unionized they would all be on the same playing field. He added, however, 20
that Respondent would have to eventually shut down because Respondent would not be able to
get any bids. In explaining how the Union operated he opined:
To companies like ours, and they come in and they talk to you they and say,
Dude, you don’t understand, they’re paying Michael Richards, full time, to follow 25
you around, to bug you, to show up at our house, so that when you open the door,
when your little wife opens the door he’s standing, you know it’s called the one
foot rule, if the threshold is there, before the door is answered you go one step,
one foot back, and that’s how close you’re supposed to be standing when the door
opens; it’s a process of intimidation, all the big union bosses in all these Soprano 30
cities, ah, St. Louis, Chicago, Kansas City, I don’t know Kansas City is a little bit
more lenient than most to my knowledge.
Witcofski told the employees that the Union would not do anything for them other than to
allow them to join their “organization.” He explained that once they joined, they would have to 35
start over because the Union would not allow them to be journeymen unless they went through a
6,000-hour program. He continued:
So maybe in 3 years, if the union even has a job for you to go to, will you work?
OK? Plus, I feel like, and I’m gonna be bold here. I feel like the union hasn’t 40
written you a check yet. But, I’ve written, this company, not me, has written you
a check every week, Sure it may not be for what you want it to be, but they’ve
never missed a paycheck, they’ve always made sure you’ve had work; they’ve
never let you be out of work, in fact they’ve overworked your friggen butts.
That’s ridiculous. OK? But when you sign up for them you will not have any 45
work to start out with, you immediately go to training, and only if some job from
Kansas City says I need three guys that just signed up for the union within the last
JD(ATL)–30–11
28
3 months, they’ll finally call you. Now how many times do you think somebody’s
gonna say, I need three guys that just signed up for the union, are you kidding
me? They’re not going to do that there is too many people out of work.
(3) Complaint paragraph 7(d)5
Witcofski told employees that after the union sent an employee’s picture to OSHA,
Respondent was fined $6000. He went on to tell employees that if 50 percent of the employees
signed union cards, the U.S. Department of Labor would declare Respondent to be unionized.
He opined: “So you all now don’t work for us anymore, you work for the union. It is as simple 10
as that.”
Witcofski added:
Now let me tell you, I’m going to be the first to admit, remember this day, in fact 15
it’s giving me goose bumps even saying it. I’m not saying the union’s not bad, it
may be for You. OK? But I and I’m serious. I’m not playing you or nothing, but
it’s not here in Northwest Arkansas because you’ll never work. It’ll take twenty
years for Arkansas, It’s a right to work state, it’s free. Is, it would take, wouldn’t
you agree?20
Witcofski followed by telling the employees about someone who was close to him who
had been a “union guy” all his life. He explained that the individual sat at home, waited for
work, became an alcoholic and drank himself to death. He reminded employees that if they were
members of the union they could not work outside the union without being blackballed or thrown 25
out of the union.
(4) Complaint paragraph 7(e)
After talking about the unions’ contributions to United States senators from Arkansas and 30
after explaining the origin of the word “redneck,” he talked about former union managers who
left the Union. Following a video that was shown to employees, Witcofski added the following:
I wanted to explain that to you, what he was saying was, they’ll settle for a bad
contract and what that means, is, if ah, let’s just say the unlikely event we wanted 35
to be union, and you guys said OK yeah. So the Labor Department says OK now
Wil-Shar you now have to get a contract agreement with the union. With this
guy. Or what that guy used to be. So we come in for days, nights, um weeks
whatever it takes. Attorneys. And they sit there and they say here’s what it’s
going to be. All your apprentices you gotta change your, you gotta change your 40
apprenticeship share, which by the way has been approved by the Department of
Labor out of Dallas, um to X amount percentage of a journeyman’s wage. OK?
What’s your journeyman’s wage? Well, we got a set that, well we can’t do that,
it’s too high. My competitor across the street will beat us every time we won’t
have any work. (unintelligible) in other words a company doesn’t have to sign the 45
contract. Now this, sometimes, this takes um, months and you’ve heard it on the
JD(ATL)–30–11
29
news about Auto Workers Union, they’re all trying to get a contract going. Well,
what happened to Chevrolet.
(5) Additional comments encompassed by complaint paragraphs 7 (a) and (b)
5
After telling employees what they could do if they felt intimidated by the union,
Witcofski continued:
But anyway, it’s uh, bottom line, they want your dues. If it, they’re gonna do and
say anything. They’re gonna write anything. To make sure that you believe what 10
they’re telling you, and make it sound really, really good. I just sat here and tried
to make you feel really good, didn’t I? Before we started talking about the union.
So you, you either trust where you’re at, where you’re going, or you trust them. I
don’t care if you get up today and say, hey, it’s been real, thanks, appreciate it.
I’m going to do something else. Fine. Just don’t, don’t go to the union. Unless 15
you plan on moving to the city and you wanna be in the middle of all those guys,
and you know, waiting for your work and you know, whatever. But if you do it
here. All it’s going to do is ruin companies, you’re gonna sit at home waiting,
while you’re paying your dues to pay Mike Richards to text other people, for the
next however many years or more. 20
Analysis
Respondent asserts that an employer has a right to express his opinions and to predict
unfavorable consequences which he believes may result from union representation and such 25
predictions are not violative of the Act if they have some reasonable basis in fact and are in fact
predictions or opinions and not veiled threats of employer retaliation. In his posthearing brief,
counsel for Respondent cites a number of circuit court cases where an employer’s statements
were found to be predictions or opinion rather threats that were violative of the Act. Respondent
maintains that Witcofski’s comments did not “go as far” as the comments that were found to be 30
protected and his comments were particularly innocuous because they were infrequent and
isolated. Respondent contends that there is no evidence that Witcofski’s comments were ever
repeated outside the meeting and the comments comprise only a few minutes of a meeting that
lasted for 2–1/2 and hours.
35
In determining whether an employer’s statement constitutes a threat in violation of
Section 8(a)(1) of the Act, the analysis of the Supreme Court in its decision in Gissel Packing
Co., 395 U.S. 575, 618 (1969), continues to be the authority. The Court explained:
An employer is free to communicate to his employees any of his general views 40
about unionism or any of his specific views about a particular union, so long as
the communications do not contain a “threat of reprisal or force or promise of
benefit.” He may even make a prediction as to the precise effect he believes
unionization will have on his company. In such a case, however, the prediction
must be carefully phrased on the basis of objective facts to convey an employer’s 45
belief as to demonstrably probable consequences beyond his control.
JD(ATL)–30–11
30
The burden of proof is on the employer to demonstrate that its prediction is based on objective
fact. Schaumburg Hyundai, , 318 NLRB 449, 450 (1995); Blaser Tool & Mold Co., 196 NLRB
374, 374 (1972). In Gissel, the Court explained that more than a mere belief is required to make
such a prediction lawful, as “employees who are particularly sensitive to rumors of plant
closings, take such hints as coercive threats rather than honest forecasts.” Gissel, 395 U. S. at 5
619–620. Accordingly, Gissel has been found to place a “severe burden” on employers seeking
to justify predictions concerning the consequences of unionization. Zim’s Foodliner, Inc., v.
NLRB, 495 F. 2d 1131, 1137 (7th Cir. 1974).
In the instant case, the overall evidence does not support a finding that Respondent’s 10
predictions met this burden. Witcofski told employees that if the company were unionized,
Respondent would have to close because their competitors were not unionized. He further
opined that while he was able to provide work for his employees, they would not have work if
they joined the Union. He told the employees that because Arkansas was a “right to work” state,
it would take 20 years for there to be work for union members. He told employees that if they 15
joined the Union, they would have to relocate to a large city and they would sit home paying
their union dues without work.
He opined that if the employees were to select the Union as their bargaining
representative, the Union would not only settle for a “bad contract,” but the Union would require 20
a specific journeyman’s wage. Witcofski contends that Respondent’s competitors would then
beat Respondent every time and the employees would not have any work.
Although an employer may lawfully predict the consequences of unionization, such
predictions must be based upon objective facts. In the present case, Witcofski predicted that if 25
the Company were unionized, Respondent would have to close its operation and would not be
able to compete with its competitors. He gives no objective criteria other than his opinion that
the Government would force Respondent to sign a contract with the Union. He further asserted
that the Union would then settle for a bad contract and would require Respondent to pay a higher
wage to the apprentices and journeymen. Although Witcofski appeared to present his prediction 30
as though the consequences would be out of his control, his overall presentation lacks the
foundation of objective factors. Even though an employer may be sincere, the Board has also
noted, the “conveyance of the employer’s belief,” that unionization will or may result in the
closing of its facility “is not a statement of fact, unless, which is most improbable, the
eventuality of closing is capable of proof. “ Iplli, Inc. 321 NLRB 463, 468 (1996). In addition to 35
the fact that Respondent provided erroneous information about its bargaining obligations in
negotiating a contract, Respondent failed to provide objective factors to demonstrate why it
would not be able to compete in the job market and would have to close because of unionization.
He impliedly told employees that it would be futile for them to select the Union as their
collective-bargaining representative. Furthermore, Respondent provided no objective factors to 40
show why employees would have to relocate to larger cities or why they would not have any
work available to them if they were unionized.
Accordingly, I find merit to complaint allegations 7(a), (b), (c), (d), and (e).
45
JD(ATL)–30–11
31
c. Complaint paragraph 8
Complaint paragraph 8 alleges that about October 15, 2010, Respondent, by clerical
Denise Rusco, at Respondent’s facility, orally promulgated a rule prohibiting employees from
discussing their terms and conditions of employment with each other. 5
(1) Rusco’s statement
Toward the end of the meeting, Witcofski asked Denise Rusco to speak with the
employees about the Union’s letter. Before she began her comments, Witcofski asked her if he 10
had told her what to say. She asserted that he had not.
As discussed above, Rusco initially talked with employees about their flexibility in taking
off from work for reasons other than sickness. She told them that they would not be able to do
so with the union. She shared her ex-husband’s experience with the Union, as well as her current 15
husband’s feelings toward the Union. She addressed some of the statements in the Union’s letter
and also confirmed for Witcofski how much money he had put back into the business.
Rusco then added:
20
You wanna gripe about the job call me. I’ll listen. Don’t call anybody else. But
he does come right out and say that the Witcofski’s and Wil-Shar are reaping your
benefits, but if the boys in there weren’t working their butts off. I wouldn’t be
stressed out all the time, he wouldn’t be stressed out all the time, and you all
wouldn’t have jobs to go to. Oh, I really don’t know about the union if they 25
actually pay your benefits like health and stuff…
Rusco continued by talking about her experience with union retirement, union dues, and her
opinion that the union’s letter contained lies. After telling employees that she would leave the
union’s letter for them if they wanted to read it, she left the meeting to go back to work. 30
Analysis
Counsel for the Acting General Counsel asserts that Rusco promulgated a rule prohibiting
employees from discussing working conditions with each other or any outside party. Counsel for 35
the Acting General Counsel bases this allegation on Rusco’s statement: “You want to gripe
about the job call me. I’ll listen. Don’t call anybody else.” Counsel submits that Rusco spoke at
the meeting at the express direction of Witcofski and thus as Rusco acted as an agent,
Respondent is accountable for her statements during the meeting.
40
Citing the Board’s decision in Waco, Inc., 273 NLRB 746, 747–748 (1984), the Acting
General Counsel submits that acting through Rusco, Respondent promulgated an unlawful rule
prohibiting the employees from discussing their working conditions with each other or any
outside party. In Waco, the employer told its employees on a number of occasions that they
were not to discuss their individual wages with one another. The Board reversed the decision of 45
the judge and found that because the employer’s prohibition against discussing wages interfered
with employees’ Section 7 rights and because there was not an overriding business justification
JD(ATL)–30–11
32
for its promulgation, the rule was unlawful. The Board’s decision in Waco was consistent with
the Board’s earlier decision in Heck’s Inc., 293 NLRB 1111, 1119 (1989) wherein a rule
requesting employees not to discuss wages constituted a restrain of employees’ Section 7 rights.
In its 1992 decision in Radisson Plaza Minneapolis, 307 NLRB 94, 94 (1992), the Board
explained that both the Waco decision and the Heck’s decision make clear that the finding of a 5
violation is not premised on “mandatory phrasing, subjective impact, or even evidence of
enforcement, but rather on the reasonable tendency of such a prohibition to coerce employees in
the exercise of fundamental rights protected by the Act.”
While there is certainly no question that an employer’s rule prohibiting employees’ 10
discussions about wages and other terms and conditions may be unlawful, I do not find this to be
the case in the instant matter. Everything about Rusco’s comments indicates that she spoke
against the Union and her comments were fully sanctioned by Respondent. Nevertheless, I find
that her comments to employees fell short of unlawfully prohibiting employees from discussing
their terms and conditions of employment. At best, her comments were more analogous to a 15
solicitation of their grievances. Although she encouraged them to come to her with their
“gripes” and concerns, she did not promise that she or any member of management could rectify
their concerns. Thus, while Rusco extended an offer to employees to come to her to discuss their
concerns, her comments did not announce a rule prohibiting their discussion of their terms of
employment as alleged in complaint paragraph 8. Accordingly, I recommend the dismissal of 20
complaint paragraph 8.
CONCLUSIONS OF LAW
1. By terminating the employment of Charles Robbins, Wil-Shar, Inc. (Respondent) 25
violated Section 8(a)(1) and (3) of the Act.
2. By interrogating employees about their union activities, Respondent violated
Section 8(a)(1) of the Act.
30
3. By threatening employees that it would cease operations if employees selected the
Union as their collective- bargaining representative, Respondent violated Section 8(a)(1) of the
Act.
4. By threatening employees with a loss of employment if employees selected the 35
Union as their collective-bargaining representative, Respondent violated section 8(a)(1) of the
Act.
5. By threatening employees that there would not be any available work if they
selected the Union as their collective-bargaining representative, Respondent violated Section 40
8(a) (1) of the Act.
6. By impliedly telling employees that it would be futile to select the Union as their
collective-bargaining representative, Respondent violated Section 8(a)(1) of the Act.
45
JD(ATL)–30–11
33
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist there from and to take certain affirmative action designed to
effectuate the policies of the Act. 5
The Respondent, having unlawfully terminated the employment of Charles Robbins, I
shall order Respondent to offer Robbins immediate and full reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quarterly basis from the date of his
layoff to the date of proper offer of reinstatement, less any net interim earnings, as prescribed in 10
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the 15
following recommended10
ORDER
The Respondent, Wil-Shar, Inc., Rogers, Arkansas, its offices, agents, successors, and 20
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employees for 25
engaging in protected concerted activity or for giving assistance or support to the Ironworkers,
Local 584 or any other labor organization.
(b) Interrogating employees about their union activities.
30
(c) Threatening to cease operations if employees selected the Union as their
collective-bargaining representative.
(d) Threatening employees with a loss of employment if they select the Union
as their collective- bargaining representative. 35
(e) Threatening employees that there would not be any available work if
employees selected the Union as their collective bargaining representative.
(f) Impliedly telling employees that it would be futile to select the Union as 40
their collective bargaining representative.

10 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
JD(ATL)–30–11
34
(g) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act. 5
(a) Within 14 days from the date of the Board’s Order, offer Charles Robbins
full reinstatement to his former job or, if that job is no longer available, to a substantially
equivalent position, without prejudice to his seniority or any other right or privilege previously
enjoyed. 10
(b) Make Charles Robbins 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 the decision.
15
(c) Within 14 days from the date of the Board’s Order, remove from its files
any reference to the unlawful layoff, and within 3 days notify Charlie Robbins in writing that this
has been done and that the 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 20
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 such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order. 25
(e) Within 14 days after service by the Region, post at its facility in Rogers,
Arkansas, copies of the attached notice marked “Appendix11.” Copies of the notice, on forms
provided by the Regional Director for Region 26, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive 30
days in conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In additional 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 35
employees by such means. 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 Respondent at any time since July 13, 2010.
40

11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the 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)–30–11
35
(f) Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. November 4, 20115
__________________________________
Margaret G. Brakebusch
Administrative Law Judge
10
JD(ATL)–30–11
36
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 terminate employees for engaging in protected concerted activity or because of
their union membership or support.
WE WILL NOT interrogate our employees about their union activities.
WE WILL NOT threaten to cease operation if employees select the Union as their collective
bargaining representative.
WE WILL NOT threaten our employees with a loss of employment if they select the Union as
their collective bargaining representative.
WE WILL NOT threaten employees that there will not be any available work if they select the
Union as their collective bargaining representative.
WE WILL NOT impliedly tell employees that it would be futile to select the Union as their
collective bargaining representative.
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 offer Charles Robbins 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 right
or privilege previously enjoyed.
WE WILL make Charles Robbins whole for any loss of earnings and other benefits resulting
from his termination, less any net interim earnings, plus interest.
JD(ATL)–30–11
37
WE WILL remove from our files any reference to the unlawful layoff of Charles Robbins, and
WE WILL notify him in writing that this has been one and that the termination will not be used
against him in any way.
WIL-SHAR, 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.
The Brinkley Plaza Building, Suite 350, 80 Monroe Avenue, Memphis, Tennessee 38103
(901) 544-0018, 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 OFFER, (901) 544-0011.