St. Louis Cardinals, LLC

National Labor Relations Board - Board Decisions

Jan 3, 2020

369 N.L.R.B. 3 (N.L.R.B. 2020)

369 NLRB No. 3
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
St. Louis Cardinals, LLC and Joe Bell. Case 14–CA–
213219
January 3, 2020
DECISION, ORDER, AND ORDER REMANDING
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On October 17, 2018, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Decision and Order.2
The judge found that the Respondent discharged, re-
fused to recall, or refused to recall in a timely manner
four statutory employees—Joe Bell, James Maxwell,3
Eugene Kramer, and Thomas Maxwell—in violation of
Section 8(a)(3) and (1) because they engaged in protect-
ed activity by filing internal union charges against Pat-
rick Barrett, a statutory supervisor and member of Paint-
ers District Council 58 (the Union). For the reasons dis-
cussed below, we affirm the judge’s finding with respect
to Bell, remand to the judge the allegations with respect
to James Maxwell and Kramer, and dismiss the allega-
tion with respect to Thomas Maxwell.4

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order to conform to
our findings and to the Board’s standard remedial language. We shall
also substitute a new notice to conform to the Order as modified.
The Respondent urges us to modify our standard remedial relief.
We see no reason for doing so at this time.
3 The judge misidentifies James Maxwell as “Joseph” Maxwell
throughout his decision. We correct this inadvertent mistake.
4 We affirm the judge’s finding that the Respondent’s Director of
Facility Operations, Hosei Maruyama, violated Sec. 8(a)(1) by telling
employee Thomas Maxwell, on January 18, 2018, that “there are con-
sequences for actions,” referring to the filing of the internal union
charges. By this statement, Maruyama implied to Thomas Maxwell
that he and the other alleged discriminatees would face negative reper-
cussions because of their protected activity, and this implication had a
reasonable tendency to interfere with their Sec. 7 rights. See Frontier
1. In agreement with the judge, we reject the Re-
spondent’s contention that the four alleged discrimi-
natees lost the Act’s protection by acting in contraven-
tion of Section 8(b)(1)(B). Section 8(b) applies only to
“a labor organization or its agents.” 29 U.S.C. § 158(b).
It does not pertain to the alleged discriminatees, who, as
rank-and-file union members, were neither officers nor
agents of the Union. See Tenn-Tom Constructors, 279
NLRB 465, 466 (1986) (rank-and-file union members
engaged in protected conduct by participating in their
steward’s filing of internal union charge against supervi-
sor / union member, even though union was assumed to
have violated Section 8(b)(1)(B) by imposing discipline
as a result of the internal union charge). Because Section
8(b) does not apply to the alleged discriminatees, they
could not have lost the Act’s protection under Section
8(b)(1)(B) by filing the internal union charges.5
2. Barrett testified that the alleged discriminatees’ in-
ternal union charges factored “a little bit” in his decision
not to recall them for the 2018 season, and the judge
found that this testimony “essentially concede[d] the
alleged [Section 8(a)(3)] violation.” The Respondent
contends that the judge’s finding was incorrect, and we
agree. Under Wright Line, Barrett’s admission only sup-
ports a finding that the General Counsel sustained his
initial burden of showing that the alleged discriminatees’
internal union charges were a motivating factor for Bar-
rett’s decision. 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 399–403 (1983). The General
Counsel having sustained his initial burden, the Re-
spondent is still entitled to an opportunity to show, as an
affirmative defense, that it would have decided not to
employ the alleged discriminatees even in the absence of
their protected activity. Id.

Hotel & Casino, 323 NLRB 815, 816 (1997), enfd. in relevant part sub
nom. Unbelievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997).
5 The Supreme Court has also held that “a union’s discipline of one
of its members who is a supervisory employee can constitute a viola-
tion of Sec. 8(b)(1)(B) only when that discipline may adversely affect
the supervisor's conduct in performing the duties of, and acting in his
capacity as, grievance adjuster or collective bargainer on behalf of the
employer.” Florida Power & Light Co. v. Electrical Workers Local
641, 417 U.S. 790, 804–805 (1974). Thirteen years later, the Court
reiterated its earlier holding by stating that Sec. 8(b)(1)(B) is violated
“only when an employer representative is disciplined for behavior that
occurs while he or she is engaged in § 8(b)(1)(B) duties—that is, ‘col-
lective bargaining or grievance adjustment, or . . . any activities related
thereto.’” NLRB v. Electrical Workers Local 340 (Royal Typewriter),
481 U.S. 573, 582 (1987) (ellipsis and emphasis in original) (quoting
Florida Power & Light Co., 417 U.S. at 805). Here, the internal union
charges were filed, and Barrett was disciplined, for violating union
bylaws by working for nonunion contractors—not for any activities
related to collective-bargaining or grievance adjustment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Notwithstanding his misstatement, the judge properly
analyzed whether the Respondent met its Wright Line
defense burden with respect to Bell. The judge clearly
considered Barrett’s testimony that he did not recall Bell
for the 2018 season because he knew Bell was already
working and rejected it as “incredible.” Accordingly, the
judge appropriately found that the Respondent failed to
show that it would have decided not to recall Bell for the
2018 season even if he had not filed the internal union
charges.
However, the judge made no similar analysis with re-
spect to James Maxwell and Kramer. Barrett testified
that he did not make an offer to James Maxwell because,
among other reasons, James Maxwell performed sloppy
and unprofessional work, slept on the job, and smoked
marijuana on lunch breaks.6 As to Kramer, Barrett testi-
fied that he did not make an offer to Kramer because he
had worked with Kramer and personally knew that Kra-
mer performed poor work and smoked marijuana on
lunch breaks. (Robert Shamel, the owner of Shamel
Construction, corroborated Barrett’s testimony regarding
the poor quality of Kramer’s work.7) Unlike with Bell,
however, the judge did not discuss Barrett’s testimony at
all. Although the judge summarily stated that the “Re-
spondent’s alternate explanations for not recalling the 4
[alleged discriminatees] are pretextual,” we cannot be
confident that he gave appropriate consideration to Bar-
rett’s testimony as to why he did not recall Kramer and
James Maxwell in light of his earlier statement that Bar-
rett’s testimony that the union charges factored “a little
bit” into his hiring decision “essentially concede[d] the
alleged violation.” In this context, the judge’s failure to
address Barrett’s serious concerns about the performance
and behavior of James Maxwell and Kramer leaves it
unclear whether the judge discredited Barrett’s testimony
or, instead, simply declined to consider it, erroneously
believing that the violations were already established by
Barrett’s admission.
In this situation, we cannot determine whether the
judge correctly found that the Respondent violated Sec-
tion 8(a)(3) by discharging James Maxwell and failing to
recall Kramer. Therefore, we shall sever the complaint
allegations concerning James Maxwell and Kramer and
remand them to the judge for further analysis and find-

6 Barrett also testified that another reason for his decision was that
James Maxwell said he could not work for Barrett. James Maxwell
said this to Director of Facility Operations Maruyama. Barrett testified
that Maruyama told him that James Maxwell said he couldn’t and
wouldn’t work with Barrett. The judge expressed skepticism of Bar-
rett’s testimony, but he did not clearly discredit it.
7 Shamel testified that he employed Kramer as a painter once, and
Kramer dripped paint onto newly finished floors to such an extent that
the floors had to be refinished.
ings of whether the Respondent carried its Wright Line
defense burden.
We find no violation with respect to Thomas Maxwell.
Maxwell was recalled for the 2018 season, but the judge
found that the Respondent violated the Act by failing to
recall him in a timely manner. We disagree. First, un-
der Wright Line, the General Counsel must show by a
preponderance of the evidence that, in response to pro-
tected activity, “the individual’s prospects for employ-
ment or continued employment have been diminished or
that some legally cognizable term or condition of em-
ployment has changed for the worse.” Northeast Iowa
Telephone Co., 346 NLRB 465, 476 (2006); see also
Bellagio, LLC v. NLRB, 854 F.3d 703, 709-710 (D.C.
Cir. 2017) (under Wright Line, “[a] finding of unlawful
retaliation . . . requires a predicate determination that an
employer took an adverse action”). Here, Barrett called
Thomas Maxwell on February 5 and 8, 2018, making
him third among the eight painters to whom he offered
positions for the 2018 season. Painting work at the ball-
park did not commence until sometime in March. Noth-
ing in the record indicates that Thomas Maxwell’s start
date or any other term or condition of his employment
would have been different from those of the two painters
who were called before he was. Because the order in
which Barrett called Thomas Maxwell had no bearing on
his terms and conditions of employment, the General
Counsel failed to make the threshold showing that
Thomas Maxwell suffered any cognizable adverse action
under Section 8(a)(3). Cf. Lancaster Fairfield Commu-
nity Hospital, 311 NLRB 401, 403-404 (1993) (finding
no violation where the employer’s alleged unlawful act
did not affect “any term or condition of employment”
within the meaning of Section 8(a)(3)).
Even assuming the General Counsel met his initial
burden under Wright Line, the Respondent met its de-
fense burden. In offering Thomas Maxwell a position for
the 2018 season, the Respondent acted in accordance
with its usual hiring practices and treated him no differ-
ently than the other painters who were hired for that year.
Even if Thomas Maxwell had not filed the internal union
charges, the Respondent would have sought to recall him
at the same time that it actually did seek to recall him—
early February, to begin work in March, which Thomas
Maxwell would have done if he had accepted the posi-
tion. Because it did not treat him any differently for fil-
ing the internal union charges, the Respondent did not
violate Section 8(a)(3) and (1) with respect to the timing
of its hiring offer to Thomas Maxwell.
Accordingly, we affirm the judge’s 8(a)(3) and (1)
findings with respect to Bell, remand to the judge the
allegations with respect to James Maxwell and Kramer,
ST. LOUIS CARDINALS, LLC 3
and dismiss the allegation with respect to Thomas Max-
well.
ORDER
The National Labor Relations Board orders that the
Respondent, St. Louis Cardinals, LLC, St. Louis, Mis-
souri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recall or otherwise discriminating
against employees for engaging in protected activity.
(b) Impliedly informing employees that they are not
being retained or recalled because they engaged in pro-
tected activity.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Joe Bell full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed.
(b) Make Joe Bell 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 judge’s decision.
(c) Compensate Joe Bell for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 14, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay award to the appropriate calendar year(s).
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusal
to recall Joe Bell, and within 3 days thereafter, notify Joe
Bell in writing that this has been done and that the re-
fusal to recall will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its St. Louis, Missouri facility copies of the attached no-
tice marked “Appendix.”8 Copies of the notice, on forms

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
provided by the Regional Director for Region 14, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since January 18, 2018.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 14 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint allegations
that the Respondent violated Section 8(a)(3) and (1) by
discharging James Maxwell and refusing to recall Eu-
gene Kramer are severed and remanded to Administra-
tive Law Judge Arthur J. Amchan for further appropriate
action as discussed above. The judge shall prepare a
supplemental decision setting forth credibility resolu-
tions, findings of fact, conclusions of law, and a recom-
mended Order. Copies of the supplemental decision
shall be served on all parties, after which the provisions
of Section 102.46 of the Board’s Rules and Regulations
shall be applicable.
IT IS FURTHER ORDERED that the complaint allegation
that the Respondent violated Section 8(a)(3) and (1) by
refusing to recall Thomas Maxwell, or refusing to recall
him in a timely manner, is dismissed.
Dated, Washington, D.C. January 3, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to recall or otherwise discriminate
against you for engaging in protected activity.
WE WILL NOT impliedly inform you that you are not
being retained or recalled because you engaged in pro-
tected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Joe Bell full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Joe Bell whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, less any net interim earnings, plus in-
terest, and WE WILL make him whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Joe Bell for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 14, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to recall Joe Bell, and WE WILL, within 3 days
thereafter, notify Joe Bell in writing that this has been
done and that the refusal to recall will not be used against
him in any way.
ST. LOUIS CARDINALS, LLC
The Board’s decision can be found at
www.nlrb.gov/case/14-CA-213219 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Bradley A. Fink, Esq., for the General Counsel.
Robert W. Stewart and Harrison C. Kuntz, Esqs. (Ogletree,
Deakins, Nash, Smoak & Stewart, P.C.), of St. Louis,
Missouri, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in St. Louis, Missouri, on August 21–22, 2018. Joe
Bell filed the initial charge in this matter on January 18, 2018.
The General Counsel issued the complaint on April 26, 2018.
The General Counsel alleges that Respondent, the St. Louis
Cardinals, violated Section 8(a)(3) and (1) of the Act by dis-
charging paint shop employee James Maxwell on or about Jan-
uary 9, 2018, and refusing to recall and/or rehire paint shop
employees, Thomas Maxwell, Joe Bell and Eugene Kramer
since about the same date. The General Counsel also alleges
that Respondent, on or about January 9 and 18, by its Director
of Facility Operations, Hosei Maruyama, violated Section
8(a)(1) by telling an employee that actions have consequences
which implied that he and others were not being recalled (or
being discharged) due to protected activity.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a limited liability company operates the major
league baseball team in St. Louis, Missouri. It annually derives
gross revenue in excess of $500,000 and purchases and receives
ST. LOUIS CARDINALS, LLC 5
goods valued in excess of $50,000 directly from points outside
of Missouri. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Painters District Coun-
cil No. 58, of which the alleged discriminatees are members, is
a labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Cardinals maintain a paint shop at Busch Stadium. For
34 years Billy Martin was the paint foreman at the Cardinals’
ball park. By virtue of its collective bargaining agreement with
the Union, the paint foreman must be a member in good stand-
ing with District Council 58. Martin was one of two full-time
painters employed by the Cardinals.1 Since 2010, Joseph Max-
well was the other full-time painter. Prior to 2010, Maxwell
had been a seasonal painter. For periods of 6–8 weeks, both
before the baseball season and afterwards the Cardinals hired
somewhere in the vicinity of 6 more seasonal painters.
The Cardinals’ general practice was to recall the same sea-
sonal painters year after year (Tr. 375). Thus, Thomas Max-
well had performed seasonal work for Respondent every year
since 2006. Eugene Kramer had performed seasonal work
every year since 2014 or 2015. Joseph Bell’s first year painting
for the Cardinals was 2017. Patrick Barrett had worked for the
Cardinals since 2006. Mickey Burns and Mark Ochs had also
worked for the Cardinals as seasonal painters for at least sever-
al years prior to 2017. If a painter was offered seasonal work
by the Cardinals while employed, he or she would leave their
other job to accept Respondent’s offer.
On November 2, 2017, Respondent sent or gave Joseph
Maxwell, Thomas Maxwell, and Eugene Kramer a letter indi-
cating that the Cardinals intended to employ them in 2018 (GC
Exhs. 10–12). On November 6, all three indicated their inten-
tion to work for the Cardinals in 2018. There is no evidence
that the Cardinals were unhappy with the quality of the work
performed for it by any of the discriminatees.
In the summer or fall of 2017, Martin announced his inten-
tion to retire at the end of 2017. Respondent solicited applica-
tions for the paint shop foreman position. Director of Facility
Operations, Hosei Maruyama interviewed 3 painters to replace
Martin: Patrick Barrett, Joe Maxwell, and his brother, Thomas
Maxwell. Around Thanksgiving, the Cardinals selected Patrick
Barrett for the position despite the fact that Joseph Maxwell
had worked for the Cardinals for a longer time and more regu-
larly. Joseph Maxwell, Thomas Maxwell, and Eugene Kramer
were unhappy with this selection.
Upon hearing of the selection, Joseph Maxwell called
Maruyama in November. He told Maruyama that Barrett was
“not a good union guy” and did not deserve the paint foreman
position. Maxwell also said he could not work for Barrett.

1 Respondent’s current foreman, Pat Barrett, disputed this. He testi-
fied that Joseph Maxwell was never full-time at the Stadium. I credit
Maxwell, but think this fact would only be relevant in a compliance
proceeding. It is clear that one painter besides the foreman, worked
substantially more hours than others. In 2017, this painter was Joseph
Maxwell. In 2018, Mark Ochs worked substantially more than other
painters, except for Barrett.
Maruyama testified that he reported this conversation to Barrett
and Matt Gifford, the Cardinals’ vice-president of operations.
It is unclear exactly what he told them about the conversation.
Maruyama did not testify that he told Barrett that Maxwell said
he could not work for Barrett (Tr. 257). Barrett testified that
Maruyama told him that Maxwell couldn’t and wouldn’t with
him (Tr. 301–302). However, he had difficulty recalling the
date of this conversation.
A few days later, Joseph Maxwell called Maruyama again to
tell him that he would bite his lip and make it (working under
Barrett) work. Maruyama did not testify that he reported this
conversation to Barrett. Barrett testified that “sometime in Jan-
uary” Maruyama told him that Maxwell would bite his lip and
try to make it [painting for Barrett] work (Tr. 325). Barrett’s
failure to pinpoint dates, makes this testimony irrelevant even if
true. There is no evidence that Barrett had made offers of em-
ployment to anyone before learning that Joseph Maxwell said
that he would “make it work.”
Maxwell informed Maruyama that some of the painters
would be filing internal union charges against Barrett.
Maruyama informed Barrett that the Maxwell brothers would
be filing internal union charges against him soon after
Maruyama spoke with Joseph Maxwell. Maruyama told Barrett
he would have the foreman’s job as long as he kept his union
card.
On December 4, 2017, Joseph Maxwell, Thomas Maxwell,
Joe Bell, and Eugene Kramer filed internal union charges
against Barrett with District 58, alleging that contrary to the
By-Laws of the Union, Barrett had regularly worked for non-
union companies. Barrett worked on and off for non-union
contractor Robert Shamel over a 10-year period, apparently
with some regularity. Joseph and Thomas Maxwell had been
aware of this fact for years but only filed union charges after
learning that Barrett had received the paint foreman position
with the Cardinals. Thomas Maxwell and Joseph Maxwell also
performed work for Shamel on occasion. Eugene Kramer
worked for Shamel once.2
On January 2, 2018, Pat Barrett assumed the duties of paint
shop foreman. On January 3, a union trial board held a hearing
on the charges filed against Barrett. Barrett and Joseph Max-
well testified in the hearing. The Union levied a $15,000 fine
against Barrett. However, it suspended $12,000 of this amount
if Barrett paid $3000 within 90 days. Joseph Maxwell, Thomas
Maxwell, Joe Bell, and Eugene Kramer appealed the Trial
Board’s decision contending that it was too lenient.3

2 There is no credible evidence that Joe Bell ever performed paint-
ing work for nonunion companies while a member of the Union. In the
fall of 2017, Barrett told Bell that if he needed side work (i.e., work for
a non-union employer) Barrett had a lot of it, Tr. 133. Bell gave Barrett
his telephone number, Tr. 134. Respondent did not ask Bell and Bell
did not testify that he had ever performed nonunion work while a mem-
ber of the Union. I decline to credit Pat Barrett’s self-serving testimony
at Tr. 296–297 that Bell told him he had performed side work previous-
ly. I do not regard Barrett as a completely reliable witness inasmuch as
his testimony as to the reasons he did not offer Bell work in 2018 is
incredible. Thomas Maxwell suggested that Barrett trying to recruit
Bell for non-union work motivated the 4 to file charges with the Union.
3 The record does not reflect when this appeal was filed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
On January 9, Gregg Scott, the Union’s Business Manager,
and Director of Organizing, Richard Lucks met with Cardinal
representatives and informed them that the Union would not
seek removal of Barrett from the paint foreman position so long
as he paid the $3000 fine on time.
On January 9, 2018, Eugene Kramer had telephone conver-
sations with the Cardinals Director of Facility Operations, Ho-
sei Maruyama. Kramer complained about Barrett’s temper.
Maruyama told Kramer he left hiring up to Barrett and that
Kramer would have to go through the Union’s hiring hall if he
wanted to work for the Cardinals again. In conversations with
Thomas Maxwell on January 18, Maruyama said that actions
have consequences, clearly implying that the 4 painters would
not be called back by the Cardinals (or at least without going
through the hiring hall) because they filed internal union charg-
es against Barrett.4
On January 18, 2018, Joseph Maxwell, Thomas Maxwell,
Joe Bell and Eugene Kramer filed a grievance pursuant to the
Union’s collective bargaining agreement with the Cardinals. At
a labor-management meeting about the grievance on February
21, 2018, Pat Barrett and Matt Gifford, the Cardinals’ Vice-
President of Operations, represented Respondent. Respondent
and the Union agreed that the Cardinals did not violate their
collective bargaining agreement by promoting Barrett to paint
shop foreman (R. Exhs. 8–10).
The Cardinals did not go through the hiring hall to obtain
seasonal painters when Martin was the foreman. Martin gener-
ally recalled the same painters for seasonal work year after
year. Barrett continued this practice with regard to painters
who did not sign the internal union charges against him.
During the second week of January 2018, Barrett offered
Mark Ochs, who worked for the Cardinals in 2017 and did not
sign the union charges, work in the winter/spring of 2018. The
second painter to get an employment offer from Barrett in Jan-
uary 2018 was Mickey Burns, who also worked for the Cardi-
nals in 2017 and did not sign the union charges. Neither was
hired via the Union’s hiring hall. Barrett hired other painters
who had not worked for the Cardinals in 2017 after offering
employment to Ochs and Burns. Only one of these, Duane
Oehman, was hired through the Union’s hiring hall.
Patrick Barrett initially did not offer employment to any of
four discriminatees. On February 5 and 8, after Joseph Bell
filed the initial ULP charge in this proceeding, Barrett offered
employment to Thomas Maxwell. Maxwell did not respond to
the offer. Barrett conceded at the instant hearing that the fact
that the 4 had brought internal union charges against him was a
factor in his decision not to offer them employment in 2018 (or
initially offer Thomas Maxwell employment).

4 I do not credit Maruyama’s testimony at Tr. 264 that when he told
Thomas Maxwell that, “actions have consequences,” he was referring
to James Maxwell telling him that he could not work for Pat Barrett.
The recording of the conversation makes it clear that Maruyama and
Thomas Maxwell were talking about filing the internal union charges
and Thomas Maxwell’s assertion that Barrett was continuing to recruit
union painters for non-union work. Maruyama and Thomas Maxwell
did not discuss Joseph Maxwell or his comment about working for
Barrett, GC Exh. 9.
ANALYSIS
Respondent, by Hosei Maruyama, violated Section 8(a)(1) by
informing Thomas Maxwell that the 4 painters were not offered
employment in 2018 because they filed internal union charges
against Patrick Barrett.5
In his conversation with Thomas Maxwell on January 18,
2018, Hosei Maruyama, by telling Maxwell that “actions have
consequences,” implicitly informed Maxwell that the 4 painters
who signed the internal union charges against Patrick Barrett
would not be offered employment in 2018. In doing so,
Maruyama coerced employees in the exercise of their section 7
rights. He did so by inhibiting them in filing and pursing their
right to file additional internal union charges or, as they in fact
did, appealing the decision of the union trial board. Moreover,
the very act of informing an employee that he is unlikely to be
hired as the result of protected conduct is itself a violation of
section 8(a)(1), CNN America, Inc., 361 NLRB 439, 457 fn. 37,
499 (2014), enfd. in pertinent part, 865 F. 3d 740, 762 (D.C.
Cir. 2017). That is particularly so where, as in this case, Re-
spondent had not completed the hiring process for 2018.
Respondent violated Section 8(a)(3) and (1) by not offering the
4 discriminatees employment in 2018.
The filing of internal union charges is protected activity. It
is an unfair labor practice for an employer to discriminate
against an employee for filing internal union charges, M. J.
Electric, 311 NLRB 1177, 1179, 1183, (1993); Tracy Towing
Line,166 NLRB 81, 82 (1967).6
Respondent, through its agent, Patrick Barrett, admitted that

5 I find it unnecessary to rule on complaint paragraph 5(A)(i) and
(iii) which allege essentially the same violative conduct that I find with
regard to paragraph 5(B). The General Counsel would not be entitled
to any additional remedy.
6 The discriminatees’ filing of union charges is not any the less pro-
tected because they were seeking to remove Pat Barrett from his fore-
man’s position. An analysis of whether these employees’ activities are
protected depends on whether the identity and capability of the supervi-
sor involved has a direct impact on the employees’ own job interests
and on the performance of the work they are hired to do, Senior Citi-
zens Coordinating Council, 330 NLRB 1100, 1103 (2000). In addition
to their concerns about Barrett shortchanging the Union, Kramer and
Joseph Maxwell informed Respondent via Maruyama that they would
find it difficult to work under Barrett. James Maxwell, Eugene Kramer
and Joseph Bell also testified or at least indicated that they were con-
cerned, before they filed the internal union charges, that that Barrett
would discharge them.
As a general matter, employees have a protected right to complain
about a supervisor and even to seek the supervisor’s discharge, when
the supervisor’s conduct can affect the conditions of their employment,
Calvin D. Johnson Nursing Home, 261 NLRB 289 (1982), enfd. 753
F.2d 1078(7th Cir. 1983); Dreis & Krump Mfg., Inc., 221 NLRB 309,
315 (1975), enfd. 544 F.2d 320 (7th Cir. 1976); Avalon Carver Com-
munity Center, 255 NLRB 1064 (1981).
Bovee & Crail Construction Co., 224 NLRB 509 (1976), cited by
Respondent is inconsistent with this line of cases. Moreover, it is dis-
tinguishable in that the discriminatees in that case were members of the
Union’s executive board. By contrast, the discriminatees in this case
did not hold any position with the Union.
ST. LOUIS CARDINALS, LLC 7
this protected activity factored “a little bit” in its decision not to
employ the 4 discriminatees in 2018 (Tr. 321, 392). This es-
sentially concedes the alleged violation because the Board will
not seek to quantitatively analyze the effect of the unlawful
cause once it has been found. “It is enough that the employees'
protected activities are causally related to the employer action
which is the basis of the complaint. Whether that ‘cause’ was
the straw that broke the camel's back or a bullet between the
eyes, if it were enough to determine events, it is enough to
come within the proscription of the Act.” Wright Line, 251
NLRB 1083, at 1089 fn. 14; accord: Bronco Wine Co., 256
NLRB 53, at 54 fn. 8 (1981).
It is also otherwise clear that Respondent, by Barrett, dis-
criminated against the 4 because they filed the union charges.
First of all, Hosei Maruyama implicitly told Thomas Maxwell
that the filing of the internal union charge was the reason the
four discriminatees would not be working for the Cardinals in
2018. Secondly, Respondent’s alternate explanations for not
recalling the 4 are pretextual.
Barrett’s explanation for not hiring Joe Bell, for example, is
obviously pretextual. Barrett testified he did not offer Bell
employment because Bell was already working. However, he
did not know whether or not the painters to whom he offered
employment were working when he offered them employment.
Moreover, Barrett knew that in the past the seasonal painters
had obtained releases from their employers in order to do sea-
sonal work for Respondent. Barrett did not have any issues
with the quality of Bell’s work, and was more familiar with
Bell’s work than with some of the painters he hired instead of
Bell (Tr. 360–361).
Hosei Maruyama also told Gene Kramer that the Cardinals
had to go through the union hiring hall to obtain seasonal paint-
ers, Tr. 261. However, only one of the 5 or 6 seasonal painters
hired in 2018 came from the Union’s out of work list (Exh. R-
1l). Barrett’s February 5 and 8 offers of employment to Thom-
as Maxwell do not detract from the evidence that Respondent
discriminated against Thomas Maxwell by not offering him
employment earlier. Barrett made this offer after the ULP
charges were filed in this case. I infer that was his motivation
in extending the offer to Thomas Maxwell. He had no other
reason not to recall Thomas Maxwell when he recalled Ochs
and Burns.
Respondent’s principal defense is that the complaint should
be dismissed because the discriminatees engaged in the protect-
ed conduct in bad faith. 3 of the discriminatees had violated the
Union’s rules against working for non-union contractors them-
selves and had been aware of Barrett’s non-union work for
years prior to 2017. However, Respondent has cited no cases
that support this defense. Board law is in fact to the contrary,
Ohio Valley Graphic Arts, Inc., 234 NLRB 493 (1978). More-
over, there is no credible evidence that Joe Bell had violated the
Union’s by-laws or acted in bad faith.
Finally, Respondent contends that the complaint should be
dismissed because the discriminatees violated Section 8(b)(1)
(B) in coercing Respondent in its selection of its representative
to adjust grievances and 8(b)(4)(B) requiring it to cease doing
business with Pat Barrett. Section 8(b) applies to labor organi-
zations and their agents. The Board has never held that rank
and file union members can violate Section 8(b). The discrimi-
natees are not a labor organization and are not agents of the
Union, See, e.g., Tenn-Tom Constructors, 279 NLRB 465
(1986); Corner Furniture Discount Center, 339 NLRB 1122
(2003).7 Moreover, when the discirminatees filed the internal
union charges they had no way of knowing that Barrett would
represent Respondent in adjusting grievances. Prior to January
2018, the Union had never filed a grievance against the Cardi-
nals. Indeed, when they filed their charges on December 4,
Barrett had not been designated as Respondent’s representative
to adjust grievances.8
Finally, Respondent’s argument is inconsistent with the
Board’s decision in Elevator Constructors (Otis Elevator Co.)
349 NLRB 583 (2007). The discriminatees did not pursue in-
ternal union charges against Barrett for engaging in contract
interpretation or grievance adjustment. They filed and pursued
these charges because Barrett regularly performed nonunion
work and recruited others to perform nonwork. Thus, even if
the discriminatees were subject to Section 8(b), they would not
have violated that portion of the Act.
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(3) and (1) in discharging
or failing to recall Joseph Maxwell to work in 2018 and in fail-
ing to recall Eugene Kramer and Joe Bell. Respondent also
violated Section 8(a)(3) and (1) in not recalling Thomas Max-
well in a timely manner.
Respondent, on or about January 18, by its director of facili-
ty operations, Hosei Maruyama, violated Section 8(a)(1) by
telling Thomas Maxwell that actions have consequences which
implied that he and others were not being recalled (or being
discharged) due to protected activity.
REMEDY
The Respondent, having discriminatorily discharged Joseph
Maxwell, must offer him reinstatement and make him whole

7 Respondent’s reliance on Preferred Building Services, 366 NLRB
No. 159 (2018), and Consolidated Communications, 367 NLRB No. 7
(2018) is misplaced. First of all, the employees in those cases, unlike
the employees in this case, were discharged for conduct that was unpro-
tected. Also, in neither of those cases did the Board conclude that rank
and file employees were agents of the Union. Moreover, the facts of
Preferred Building Services, unlike this one, show substantial involve-
ment of union officials in the conduct for which the employees were
discharged. Consolidated Communications is not even a Section 8(b)
case. The employee in that case was discharged for unprotected con-
duct which was only tangentially related, if at all, to union activity
(endangering company officials on a public highway).
8 Sec. 3 of Respondent’s collective-bargaining agreement, GC Exh.
2, p. 6, states that when a grievance is timely filed “the Employer’s
Representative or Foreman” and the District Council shall meet jointly
within 5 days to resolve the grievance. At the time the discriminatees
filed their charges with the Union and on January 3, 2018, when the
Union trial board met, they had no way of knowing that Respondent
would designate Barrett, as opposed to some other representative, to
meet with the District Council to resolve a grievance. That Respondent
would designate Barrett as a representative for processing grievances
was not clear until February 21, 2018. Even then, it is not clear what
was the scope of his authority in that he was accompanied by Matt
Gifford, Respondent’s vice-president of operations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at therate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). Re-
spondent shall compensate him for his search-for-work and
interim employment expenses regardless of whether those ex-
penses exceed his interim earnings, computed as described
above.
The Respondent, having discriminatorily failed to timely re-
call Joe Bell and Eugene Kramer, must offer them reinstate-
ment and make them and Thomas Maxwell whole for any loss
of earnings and other benefits. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010). Respondent shall
compensate them for their search-for-work and interim em-
ployment expenses regardless of whether those expenses ex-
ceed their interim earnings, computed as described above.
Respondent shall file a report with the Regional Director for
Region 14 allocating backpay to the appropriate calendar quar-
ters. Respondent shall also compensate the 4 discriminatees for
the adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year,
AdvoServ of New Jersey, 363 NLRB No. 143 (2016).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, the St. Louis Cardinals, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging, failing to recall, or otherwise discriminat-
ing against any employee for engaging in protected activity.
(b) Impliedly informing employees that they are not being
retained or recalled because they engaged in protected activity.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Joseph Maxwell, Joe Bell, and Eugene Kramer full reinstate-
ment to their former jobs or, if those jobs no longer exist, to a
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Make Joseph Maxwell, Thomas Maxwell, Joe Bell, and
Eugene Kramer whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of the decision.
(c) Compensate Joseph Maxwell, Thomas Maxwell, Joe
Bell, and Eugene Kramer for the adverse tax consequences, if

9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
any, of receiving a lump-sum backpay award, and file with the
Regional Director for Region 14, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board or-
der, a report allocating the backpay award to the appropriate
calendar years.
(d) Compensate Joseph Maxwell, Thomas Maxwell, Joe
Bell, and Eugene Kramer for their search-for-work and interim
employment expenses regardless of whether those expenses
exceed their interim earnings.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its St.
Louis facility copies of the attached notice marked “Appen-
dix.”10 Copies of the notice, on forms provided by the Regional
Director for Region 14, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the 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 January 18, 2018.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. October 17, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ST. LOUIS CARDINALS, LLC 9
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge, fail to recall, or otherwise discrimi-
nate against any of you for engaging in protected concerted
activity.
WE WILL NOT inform you implicitly that you are not being of-
fered work due to your protected activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the
Act.
WE WILL, within 14 days from the date of this Order, offer
Joseph Maxwell, Joe Bell, and Eugene Kramer full reinstate-
ment to their former jobs or, if those jobs no longer exist, to a
substantially equivalent position, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
WE WILL make Joseph Maxwell, Thomas Maxwell, Joe Bell,
and Eugene Kramer whole for any loss of earnings and other
benefits resulting from their discharge or failure to be recalled
or timely recalled, less any net interim earnings, plus interest
compounded daily.
WE WILL compensate Joseph Maxwell, Thomas Maxwell,
Joe Bell, and Eugene Kramer for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and WE WILL
file a report with the Regional Director for Region 14 allocating
the backpay award to the appropriate calendar quarters.
WE WILL compensate Joseph Maxwell, Thomas Maxwell,
Joe Bell, and Eugene Kramer for their search-for-work and
interim employment expenses regardless of whether those ex-
penses exceed his interim earnings.
ST. LOUIS CARDINALS, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14-CA-213219 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.