A.E. Frasz, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 28, 2013

13-CA-093123 (N.L.R.B. May. 28, 2013)

JD–37–13
Elburn, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
A.E. FRASZ, INC.
and Case 13–CA–093123
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 150, AFL-CIO
Kevin McCormick, Esq.,
for the Acting General Counsel.
Michael Hughes, Esq.,
for the Respondent.
Melinda Hensel and Elizabeth LaRose, Esqs.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEOFFREY CARTER, Administrative Law Judge. This case was tried in Chicago,
Illinois on April 10–11, 2013. The International Union of Operating Engineers, Local 150, AFL-
CIO (the Union or Local 150) filed the charge on November 13, 20121 and the Acting General
Counsel issued the complaint on February 8, 2013.
The complaint alleges that A.E. Frasz, Inc. (Respondent) violated Section 8(a)(3) and (1)
of the National Labor Relations Act (the Act) by: (a) on or about July 23, 2012, conditioning its
offer of employment to Erik Thorson on his withdrawal from the Union; and (b) on or about
October 20, 2012, discharging Erik Thorson because he assisted the Union and engaged in
protected concerted activities, and to discourage other employees from engaging in those
activities. Respondent filed a timely answer denying the alleged violations in the complaint.
On the entire record,2 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel, the Union and Respondent, I
make the following

1 All dates are in 2012, unless otherwise indicated.
2 The transcripts in this case are generally accurate, but I hereby make the following corrections to
the record: page 179, lines 4–5 should read “the last question is not probative”; page 188, lines 10–11
should read “request for a directed verdict, essentially”; and page 188, lines 19-20 should read “it also has
some evidence that could be used to support a pretext argument as well.”
I also emphasize that although I have included several citations to the record to highlight particular
testimony or exhibits, my findings and conclusions are not based solely on those specific record citations,
but rather are based on my review and consideration of the entire record for this case.
JD–37–13
2
FINDINGS OF FACT
I. JURISDICTION
5
Respondent is a corporation based in Elburn, Illinois that engages in the business of
excavating, grading, and sewer, water and septic construction. In 2012, Respondent provided
services valued over $50,000 to customers such as Bunge Limited, a global agribusiness and
food company headquartered in White Plains, New York. Respondent is thus an entity directly
engaged in interstate commerce. Respondent admits, and I find, that it is an employer engaged 10
in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
15
A. A.E. Frasz, Inc. – Overview and Union History
Respondent A.E. Frasz, Inc., which is owned by Andrew Frasz, is a construction
contractor that performs residential and commercial excavating work, including laying
underground pipe and installing septic systems. (Tr. 147–148.) Since 2000, Respondent has 20
entered into a series of collective-bargaining agreements with the Truck Drivers, Chauffeurs,
Warehousemen & Helpers Union, Local 707 (Local 707), an affiliate of the National Production
Workers Union. According to Frasz, Local 707 permits Respondent to operate as a “merit shop
contractor,” which enables Respondent to promote employees based on talent instead of
seniority. (Tr. 174, 176, 195–196.) 25
Respondent’s current collective-bargaining agreement with Local 707 covers the time
period from January 1, 2011 to December 31, 2013, and contains the following union-security
clause:
30
It shall be a condition of employment that all employees of the Employer covered by this
Agreement who are members of [Local 707] in good standing on the date of which this
Agreement is signed shall remain members in good standing, and those who are not
members on the date on which this Agreement is signed shall, on the ninety-first (91st)
day following the date on which this Agreement is signed, become and remain members 35
in good standing with [Local 707]. It shall also be a condition of continued employment
that all employees covered by this Agreement hired after the date on which this
Agreement is signed shall, on the ninety-first (91st) day following the beginning of such
employment, become and remain members in good standing with [Local 707].
40
(Respondent (R) Exh. 1, Article II, Section 1; see also id. at Section 5 (noting that a new
employee is on probation for the first 91 days of his or her employment); Tr. 196–198.) Neither
Respondent nor Local 707 strictly enforced the terms of the union-security clause for
“temporary” or “part-time” employees. For example, if an employee worked for Respondent for
longer than 90 days without joining Local 707, but was assigned to a job that would end in a few 45
additional weeks, neither Local 707 nor Respondent invoked the union-security clause against
the employee. (Tr. 182–183.)
JD–37–13
3
There is no evidence that Respondent has ever entered into a collective-bargaining
relationship with Local 150. Local 150 has, however, attempted to organize Respondent’s
employees in the past. (Tr. 198.)
5
B. Erik Thorson Seeks Employment with Respondent
Erik Thorson has worked as a heavy equipment operator for several years, and has
experience with operating excavators, backhoes, loaders, bulldozers and other earth-moving
equipment. Thorson became a member of Local 150 in 1996. (Tr. 20–21.)10
In October 2011, Thorson attended a Local 150 meeting, at which the business agent for
Local 150 asked Thorson to go to one of Respondent’s worksites to try to get a job.
Accordingly, on October 24, 2011, Thorson visited a project that Respondent was handling in
Sugar Grove, Illinois and asked Respondent’s superintendent Jim Giese if Respondent had any 15
work available. Giese replied that he thought Respondent might be able to use Thorson, and
provided Thorson with company owner Frasz’ telephone number. (Tr. 22–23, 337–338.)
Thorson called Frasz, who agreed to come to the Sugar Grove worksite later that morning
to meet Thorson and speak with him about the possibility of working for Respondent. Frasz 20
advised Thorson that he had a lot of work coming up, and that he thought he could use Thorson
on some of Respondent’s jobs. Upon learning that Thorson was a member of Local 150, Frasz
stated that Thorson would need to obtain a withdrawal card from Local 150 before working for
Respondent, and would also need to join Local 707. (Tr. 23–24, 202–203.)
25
Consistent with Frasz’ instructions, on October 31, 2011, Thorson went to the Local 150
office and paid a five dollar fee to obtain a withdrawal card. (Tr. 25.) After receiving the
withdrawal card in the mail on November 4, 2011,3 Thorson called Frasz that same day to tell
him that he obtained the withdrawal card, and to find out if Frasz had any work for him. Frasz
replied that he did not have any work at that time. However, on November 19, Frasz contacted 30
Thorson to see if he was available to work during Thanksgiving week. Thorson was not
available, and ultimately Frasz promised to contact Thorson in the spring of 2012, when he
expected to have some new work. (Tr. 26–29, 93–94, 205, 270; GC Exh. 2.)
In the months that followed, Thorson and Frasz stayed in touch about the possibility of 35
Thorson working for Respondent. In a May 2012 conversation, Frasz confirmed that Thorson
was still interested in working for Respondent, explained that he expected Respondent to have a
lot of big jobs coming up, and reiterated that Thorson would need to provide a copy of his Local
150 withdrawal card when he started working for Respondent. (Tr. 29, 95; see also Tr. 206–207,
271 (Frasz also called Thorson in late winter or early spring to see if he was still available).)40

3 Although Thorson obtained his Local 150 withdrawal card on November 4, 2011, he resumed
paying Local 150 union dues on January 9, 2012. (R. Exh. 5) There is no evidence that Thorson notified
Respondent that he resumed paying Local 150 union dues after obtaining his withdrawal card.
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C. The Bunge Oils Project
1. Project overview
In mid-July 2012, Respondent began working on a project at Bunge Oils (Bunge), a food 5
processing company located in Bradley, Illinois. Specifically, Bunge was building a new
refrigerated warehouse as an addition to its existing facility, and general contractor RFW
Construction (RFW) brought on Respondent as a subcontractor to handle the excavation work
for the project. (Tr. 30–31, 148–149, 208, 213, 262–263; see also R. Exhs. 2–4 (bid, scope of
work, and subcontracting paperwork for the Bunge project).)10
2. July 2012 – Respondent hires Thorson for the Bunge project
On July 13, Frasz contacted Thorson to offer him a job working on the Bunge project. In
a handful of conversations over the following days,4 Frasz advised Thorson that he would start 15
work on July 23, after filling out a job application, providing a copy of his driver’s license, and
completing a safety training course required by Bunge. Frasz also advised Thorson that he could
turn in his Local 150 withdrawal card with his application paperwork, and also noted that
Respondent would provide a hard hat and reflective safety shirts for Thorson to wear while
working on the job. (Tr. 30–34, 208–211.) Thorson agreed, and promised to arrive in the 20
morning on July 23 to complete his paperwork and attend the safety training class. (Tr. 34–35.)
On July 23, Thorson reported to the Bunge worksite, where other members of
Respondent’s team were gathering. When Frasz arrived, he provided Thorson with a hard hat
and five reflective shirts to wear while on the worksite, as well as a job application to complete. 25
Thorson provided Frasz with a copy of his Local 150 withdrawal card, which Frasz accepted and
later stored in Respondent’s files.5 (Tr. 35–37, 58, 96, 295–297; GC Exh. 17.)

4 Thorson testified that in a July 19 voicemail, Frasz asked him to start work on July 23, and told
Thorson to bring his Local 150 withdrawal card and other materials with him when he reported to the
worksite. (Tr. 34.) Respondent maintains that Thorson’s credibility is damaged because he did not
produce a copy of this voice mail when this case went to trial (approximately 9 months later). (R.Posttrial
Br. at 18–19.) I do not share Respondent’s view. As a preliminary matter, I note that although Thorson
was working with Local 150, it does not follow that he would have had the legal knowledge and
forethought to save the voice mail to litigate a potential unfair labor practice claim. Furthermore, none of
the parties asked Thorson what happened to the voice mail, and thus it would be sheer speculation for me
to make any conclusions about whether it was available at the time of trial. Given the state of the record
on this issue, I do not find that Thorson’s credibility was weakened by the fact that no July 19 voice mail
was offered as evidence in the trial.
5 Frasz denied telling Thorson at any point that he would need to obtain a withdrawal card from
Local 150 before working for Respondent. (Tr. 204.) I do not credit that testimony because it is not
plausible that Thorson would have gone through the trouble of obtaining the withdrawal card had Frasz
not asked for it, nor is it plausible that Respondent would have accepted and filed Thorson’s withdrawal
card when Thorson provided it when he started working for Respondent on July 23, 2012. (See GC Exh.
17.)
I also note that I did not give any weight to the evidence that Respondent presented to show that it did
not seek union withdrawal cards from other Local 150 members who have previously worked for
Respondent. Specifically, Respondent presented evidence that former employees C.H., D.O. and C.T.
were all Local 150 members. (See R. Exhs. 6–8.) Respondent, however, provided very limited
JD–37–13
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3. Initial safety training
Before starting work on July 23, Thorson and the other employees who were present
attended Bunge’s safety training class.6 While part of the training focused on requirements that 5
employees needed to satisfy while working inside the Bunge facility (given that the facility was
used for food processing), the Bunge training did emphasize the importance of wearing hard hats
at all times (unless inside a machine/vehicle), as well as safety glasses and high visibility
vests/shirts. Noting that Respondent was in the excavating business, the Bunge trainer
mentioned that Bunge had a fatality at another worksite involving an excavating subcontractor. 10
At the conclusion of the training, employees received a red sticker to place on their hard hats, as
well as a wallet card, each of which established that the employee had completed the training and
was authorized to work on the project. The Bunge trainer advised employees (including
Thorson) that the red training sticker needed to be visible at all times on their hard hats while at
the worksite. The trainer added that an employee without a training sticker on his/her hard hat 15
could be asked to leave the worksite, and a contractor with multiple violations could risk losing
their contract. (Tr. 37–38, 58, 96–98, 121, 226–229, 234, 279, 281–282, 330–331, 340–342,
368–372, 375–379, 393–395, 397–398; see also GC Exh. 18 (copy of the wallet card that
Thorson received after completing the safety training class).)
20
A couple of weeks later, RFW conducted its own safety training class, which Thorson
and other employees attended. The RFW training covered basic safety and the importance of
wearing safety gear such as hard hats, safety goggles and high visibility work shirts. At the end
of the RFW safety training class, Thorson and other employees at the training received a white
label/sticker that they were required to place on their hard hats. The RFW trainer advised 25
employees that they could be asked to leave the worksite if they failed to wear their RFW safety
training label on their hard hats.7 (Tr. 58, 98–100, 229–230, 278, 343–345, 396–397; see also R.
Exh. 2, par. 32 (advising subcontracting bidders that their employees would have to participate
in a “Day One” training led by RFW, and wear badges issued by RFW at all times indicating that
they participated in the training).)30

information about when employees C.H., D.O. and C.T. actually worked for Respondent, and thus it is
not possible to determine reliably whether their Local 150 membership overlapped with their work for
Respondent. (See Tr. 184, 211–213 (Frasz testified that C.H. and D.O. worked for Respondent on
unspecified dates off and on for 20 years, while he guessed that C.T. probably worked for him in spring or
summer 2010).) Moreover, even if Respondent had provided reliable information about dates of
employment, the experiences of C.H., D.O. and C.T. when they worked for Respondent are not relevant
to the issues in this case regarding whether Respondent violated the Act in its dealings with Thorson.
6 Although the witnesses had somewhat different recollections about which employees attended this
training on July 23, I find that the following employees were present: Frasz; Giese; Dale Swanson
(Respondent’s underground superintendent); Thorson; and employees R.S., R.W. and S.S.. (See Tr. 37–
38, 102, 340, 395; see also Tr. 392.)
7 RFW also conducted weekly safety talks that Thorson and other employees attended. The safety
talks generally focused on one topic for the entire 15–20 minute meeting. (Tr. 100–101.)
JD–37–13
6
4. Thorson’s initial work performance and interactions with coworkers
Thorson initially received positive feedback about the work that he was performing on
the Bunge job. On Thorson’s first day on the job (July 23), Frasz told Thorson that he liked
Thorson’s work, and hoped that Thorson could develop into his go-to person for using the GPS 5
bulldozer (a bulldozer that used GPS technology to determine land elevations). Frasz also
indicated that he expected to have additional work coming up at other projects. (Tr. 39–40.)
Thorson’s first two months at the Bunge job were not problem-free, however, in large
part because Thorson was not shy about sharing his opinions about how work should be 10
performed at the worksite. For example, in early August, Thorson questioned some of his
coworkers about whether they were using the correct chains to lift a heavy object. When the
coworkers continued to use chains and other equipment in a manner that Thorson believed was
unsafe, Thorson (on or about August 27) took it upon himself to use his cell phone to make a
video recording of a chain lift that his coworkers were performing that day.8 (Tr. 41–45, 47, 15
104–106; see also Tr. 124–125, 240–241, 312 (Thorson told Frasz about his concern that
employees were not using proper lifting equipment, and also told Frasz that a pipe lifting device
that Frasz purchased was inadequate and a waste of money).)9 Thorson’s cell phone use did not
go over well, because the next time he took out his cell phone and appeared to be taking a picture
of his coworkers’ activities, one of his coworkers warned that he would take Thorson’s phone 20
and break it if Thorson continued. (Tr. 47, 110–111.)10
Similarly, Thorson expressed some frustration with the GPS technology on the bulldozer
that he often used, because at times, the GPS feature provided inaccurate information due to

8 The witnesses presented conflicting testimony about whether Thorson was inside his bulldozer
while it was running or on the ground when he made his video recording. (Compare Tr. 45 with Tr. 404.)
The dispute about that issue is not material to my analysis.
9 In its posttrial brief, Respondent makes much of the fact that neither the Acting General Counsel
nor the Union asked Thorson to play the August 27 video at trial. (R. Posttrial Br. at 23; see also Tr. 104
(Thorson testified that he still had the video, and had previously shown it to a Board agent).) Specifically,
Respondent argues that because neither the Acting General Counsel nor the Union played the video
during trial, I should infer that the video would not have corroborated Thorson’s testimony. (R. Posttrial
Br. at 23.) I do not find that such a conclusion is warranted. Respondent certainly could have asked to
review Thorson’s video during trial, but there is no record that he ever made such a request. Perhaps
more important, there really is no dispute that Thorson questioned the safety of some of Respondent’s
lifting practices, as Frasz himself admitted that Thorson asserted that employees were not using proper
lifting equipment. (Tr. 312.)
10 I note that Respondent did not prohibit photographs at the worksite. To the contrary, both Giese
and Dale Swanson acknowledged that occasionally they would take photographs to document work that
Respondent performed at the worksite. (Tr. 362–363, 382–384, 435–436; GC Exh. 19.) Thorson also
took photographs for that purpose, including one photograph that he sent to Giese in August to document
work that was completed (in case Giese needed to show the photograph to the general contractor), and
three additional photographs that he sent to Swanson on September 20 to show that employees had to drill
through bedrock to complete a particular task (a fact that might support an increase in Respondent’s
contract price). (Tr. 46–53, 114–117; GC Exhs. 3–8, 13; see also Tr. 55–57, 119–120, 264 (explaining
that Thorson erroneously wrote “Jim Giese” on GC Exhibit 13 as the recipient of the photographs that he
sent, and that GC Exhibit 13 lists Swanson’s cell phone number as the phone number that Thorson sent
the photographs to).)
JD–37–13
7
interference from nearby buildings and other structures. Thorson told both Giese and Frasz that
he preferred to use the bulldozer in the “regular” way, with stakes and lasers used to mark off the
bulldozing elevations. (Tr. 241–242, 299, 358, 360, 384–386.)
And, when two additional employees (M.J. and B.J.) joined the project in mid-August 5
and wore their own hard hats instead of the hard hats that Respondent provided (a practice that
Respondent permitted), Thorson made a point of inspecting M.J.’s hard hat during the lunch
break and telling M.J. that his hard hat was unsafe because it had expired (according to the
expiration date etched under the brim of the hat). (Tr. 59–61, 289–290.)
10
Notably, Respondent did not discipline Thorson for any of these issues, beyond
underground superintendent Dale Swanson (at Frasz’ direction) telling Thorson in late
September or early October (before October 11) to stop taking photographs and videos while on
duty.11 (Tr. 405–408, 428, 430, 434.)
15
5. Employee S.S. receives a safety glasses infraction, and Thorson loses his hard hat stickers
In mid-September, Frasz learned that employee S.S. had been written up by one of
Bunge’s safety inspectors. As described to Frasz (by S.S. and Swanson),12 S.S. was using a
pressure washing device when water splashed from the ground and covered S.S.’s safety glasses 20
with muddy water. Since S.S. could not see, another employee shut off the device and S.S. then
stepped back and removed his safety glasses to clean them. The Bunge safety inspector spotted
S.S. at that moment, and cited him for not wearing safety glasses at the worksite. Based on those
circumstances, Frasz decided that Respondent should not discipline S.S., 13 but rather inform
S.S. that if he accrued three such infractions (from Bunge/RFW), he could be asked to leave the 25
worksite.14 (Tr. 155–157, 234–236, 292–295, 326, 401–403, 427–428.)
In the same timeframe, the Bunge and RFW training stickers that were attached to
Thorson’s hard hat came off. In the following weeks (up to October 11), no one on behalf of
Respondent (or Bunge or RFW) told Thorson that he needed to replace the missing stickers. (Tr. 30

11 Although no discipline was issued, I note that Giese verbally reminded Thorson on two or three
occasions to put on his hard hat before exiting the bulldozer he was driving (no hard hat was required
when Thorson was inside the machine). Similarly, Giese verbally reminded other employees to put on
their hard hats before exiting their vehicles in the worksite staging area. (Tr. 355–356.)
12 The evidentiary record does not include a first-hand account of the safety glasses incident. To the
extent that the parties presented hearsay evidence about the incident, I allowed it only for the purpose of
showing what information led to Frasz’ decision not to discipline S.S..
13 The only disciplinary record entered into evidence for the entire trial was from July 7, 2003, when
Frasz gave S.S. a written warning that identified the following misconduct: (a) running the Bobcat in high
gear (despite being told twice not to do so), and running the Bobcat in an abusive manner; (b) hitting a
gas line on July 2, 2003 that was clearly marked and pointed out by a supervisor; and (c) not showing the
expected skill level or improvement in skill level, and not working efficiently when unsupervised. (Tr.
171–173; GC Exh. 15.)
14 For certain safety infractions, Bunge and RFW followed a “three-strike” rule, under which an
employee who received three safety infractions could be excluded from the worksite. (Tr. 157–158, 291–
292, 294.)
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58, 85–86, 120–121; see also Tr. 441–443 (no stickers were on the hard hat that Respondent
presented at trial as Thorson’s company hard hat.)
6. October 11, 2012 – Thorson begins talking to employees about supporting Local 150
5
On October 11, Thorson reported to work and spent the morning running the bulldozer in
what was to be a loading dock area. At lunchtime, Thorson went to his truck and replaced the
hard hat that Frasz provided with his own hard hat that bore several Local 150 stickers. Thorson
also opened his jacket to reveal a sweatshirt with the Local 150 logo. Thorson then joined
Swanson and employee R.S. for lunch, during which he spoke about the benefits of joining Local 10
150 and handed out Local 150 authorization cards and the business card of one of Local 150’s
organizers. (Tr. 62–67, 69, 126–127, 138, 408–412; GC Exhs. 11–12; see also Tr. 70 (indicating
that Thorson also spoke with employees S.S. and M.J. about supporting Local 150, and provided
them with authorization cards and business cards).) Swanson let Thorson “say his piece” about
the benefits of joining Local 150, but did assert that Frasz would never go union and would 15
rather go out of business before he went union.15 (Tr. 127, 133, 141–142, 410.) In addition,
upon noticing that Thorson’s hard hat did not have the Bunge or RFW safety training stickers on
it, Swanson mentioned to Thorson that the stickers were required in order to be on the job. (Tr.
418.)
20
After the lunch break on October 11, Swanson called Frasz to tell him that Thorson was
wearing a hard hat and sweatshirt with Local 150’s logo on it, and spoke to Respondent’s
employees during the lunch break about supporting Local 150. Swanson also mentioned that
Thorson’s hard hat did not have the safety training stickers attached to it. When Swanson asked
if he should do anything to respond to Thorson’s activities, Frasz asked Swanson to reiterate to 25
Thorson that the safety training stickers were required, but otherwise take no action since
Thorson was confining his union activities to the lunch break. Accordingly, on or about October
16, Swanson again told Thorson that he was required to have the Bunge and RFW safety training
stickers on his hard hat.16 (Tr. 151, 246–247, 419–420; see also GC Exh. 9.) Notwithstanding

15 I did not credit Frasz’ denial of Swanson’s summary of his union views, because Frasz initially
was equivocal in his denial (he denied making a specific statement), and then relied on closed questions
and answers to deny making other specific anti-union statements set forth by Respondent’s attorney
during direct examination. (Tr. 247–248.) Similarly, I did not credit Swanson’s efforts to deny that Frasz
stated he would close the company if employees unionized. When asked if Frasz made such a statement,
Swanson initially responded that Frasz did not make the statement “at that time” (on or about October
11). Upon further questioning, Swanson was only able to deny that Frasz made a specific statement
(again, phrased by Respondent’s attorney) regarding shutting the company down if employees chose
Local 150. (Tr. 417.)
16 Thorson testified that Swanson never said anything to him about his hard hat. (Tr. 71–72, 78–79,
126.) Since Swanson’s and Thorson’s testimony on this point were equally credible, I find that the “tie”
goes to Respondent (i.e., I have credited Swanson’s account on this point), since the Acting General
Counsel bears the burden of proving the allegations in the complaint by a preponderance of the evidence.
See Central National Gottesman, 303 NLRB 143, 145 (1991) (finding that General Counsel did not meet
its burden of proof because the testimony that the allegation occurred was equally credible as the
testimony that denied the allegation); Blue Flash Express, 109 NLRB 591, 591–592 (1954) (same),
questioned on other grounds, Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354 (D.C. Cir. 1997). I did
not, however, credit Frasz’ characterizations of what Swanson told Thorson about his hard hat (see Tr.
153, 255–258), since Frasz has no first-hand knowledge of those conversations.
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Swanson’s remarks, for the duration of his employment with Respondent, Thorson continued to
wear his own hard hat (with the Local 150 stickers, and without the Bunge and RFW safety
training stickers) and encourage employees to support Local 150. (Tr. 71, 414–415; see also Tr.
127–129 (Thorson spoke with Frasz by telephone on October 12 to confirm that Frasz wanted
him to work during the week of October 14, and neither Frasz nor Thorson raised the issue of 5
Thorson’s hard hat, union sweatshirt or Local 150 organizing activities at the worksite.)
7. October 17, 2012 – Thorson leaves the worksite briefly for a personal errand
On October 17, Thorson took a break from his work in the morning to drive to a nearby 10
gas station to buy a soda. Thorson did not speak to Swanson to ask permission to leave the
worksite before running his errand.17 Thorson was away from the worksite for approximately 5–
20 minutes. (Tr. 72–75, 137, 420–421.)
It was not uncommon for Respondent’s employees to leave the worksite briefly to run 15
personal errands. In particular, some employees regularly left the worksite 10–15 minutes before
the lunch break to purchase food at nearby fast food restaurants, but still took the full lunch break
after returning to the worksite. In addition, both Swanson and Thorson agreed that on a different
day, Thorson (this time with Swanson’s permission) ran a personal errand for 10–15 minutes to a
nearby gas station to purchase some items. (Tr. 73, 75, 88, 421–422, 438.)20
8. October 20, 2012 – Respondent terminates Thorson
On October 20, Frasz called Thorson at home to tell him that he was terminated from his
employment with Respondent. Frasz advised Thorson that instead of explaining the reasons for 25
Thorson’s termination over the telephone, Frasz would send Thorson a termination letter in the
mail. (Tr. 21, 76–77, 131–132, 150, 260–261, 294.) Consistent with that representation, Frasz
subsequently sent Thorson a termination letter dated October 26, 2012, that states as follows:
Erik,30
Per my phone call to you Saturday morning, 10–20–12, we are terminating your
temporary employment with A.E. Frasz, Inc. for the following reasons:
1. You were issued a new company approved hard hat that displayed the two safety 35
training stickers required to be displayed on the job site. You wore a different helmet
of quality and age unknown that did not display the safety stickers. On October 16,
2012, Dale Swanson, your supervisor, informed you to wear the company issued hard
hat. You continued to wear the non-issued hard hat thereafter.
40
2. You were observed on 2 occasions by 2 fellow employees taking video during
working hours on 10/9/12 and 10/16/12.

17 Thorson asserted that he did ask Swanson for permission to run an errand on October 17. (Tr. 73–
74, 83.) I have not credited Thorson’s testimony on that point because once again, Swanson’s conflicting
testimony was equally credible, and the Acting General Counsel bears the burden of proof. See Findings
of Fact (FOF) Section II(C)(6), fn. 16, supra.
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3. You left the job site during working hours without asking or notifying your
supervisor on 10–17–12.
As you were hired to work this specific job, which is winding down, and the primary 5
machine you ran was moved off the job on 10–12–12, your time with us was limited to a
few more weeks. However, we cannot tolerate an employee who seems to have a
separate agenda to the work at hand.
Enclosed is your paycheck for the 10–19–12 payday. If you submit your hours 10
outstanding to date, you can pick up your paycheck on Friday, 11–2–12, after having
returned your company issued hard hat and 5 shirts in a cleaned condition to our office or
the Bunge jobsite.
Drew Frasz,15
President
(GC Exh. 9; see also Tr. 77–78.)
At trial, Frasz admitted that the termination letter set forth incorrect dates for when 20
Thorson took video. (Tr. 160–161, 319–321; see also Tr. 79–82; GC Exhs. 10, 16 (showing that
Thorson was not at work on October 9).) Frasz also acknowledged that he did not attempt to
obtain Thorson’s explanation for or responses to any of the alleged misconduct. (Tr. 153, 159,
293–294, 318, 321.) Finally, Frasz explained that Thorson’s alleged hard hat infractions
provided the impetus for his decision to terminate Thorson, and that while Thorson’s alleged 25
infractions regarding taking video and leaving the job site violated rules of common sense, they
were not the main reasons for Thorson’s termination. (Tr. 258–260; see also Tr. 252 (Frasz did
not take any action against Thorson upon learning that he was recording video, other than to state
that he did not approve, and to ask Swanson to keep an eye out); Tr. 254 (Frasz merely told
Swanson to keep an eye on Thorson upon learning that Thorson left the work site on October 30
17).)
COMPLAINT ALLEGATIONS
The complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act by, on 35
or about July 23, 2012, conditioning its offer of employment to Erik Thorson on his withdrawal
from Local 150. (GC Exh. 1(c), pars. V(a), (c).)
The complaint also alleges that Respondent violated Section 8(a)(3) and (1) of the Act
by, on or about October 20, 2012, discharging Erik Thorson because he assisted Local 150 and 40
engaged in protected concerted activities, and to discourage other employees from engaging in
those activities. (GC Exh. 1(c), pars. V(b), (c).)
45
JD–37–13
11
LEGAL STANDARDS
A. Witness Credibility
A credibility determination may rely on a variety of factors, including the context of the 5
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); see also Roosevelt Memorial Medical Center, 10
348 NLRB 1016, 1022 (2006) (noting that an ALJ may draw an adverse inference from a party’s
failure to call a witness who may reasonably be assumed to be favorably disposed to a party, and
who could reasonably be expected to corroborate its version of events, particularly when the
witness is the party’s agent). Credibility findings need not be all-or-nothing propositions —
indeed, nothing is more common in all kinds of judicial decisions than to believe some, but not 15
all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622.
B. Section 8(a)(1) Violations
Under Section 7 of the Act, employees have the right to engage in concerted activities for 20
their mutual aid or protection. Section 8(a)(1) of the Act makes it unlawful for an employer (via
statements, conduct, or adverse employment action such as discipline or discharge) to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. See
Station Casinos, LLC, 358 NLRB No. 153, slip op. at 18 (2012).
25
The test for evaluating whether an employer’s conduct or statements violate Section
8(a)(1) of the Act is whether the statements or conduct have a reasonable tendency to interfere
with, restrain or coerce union or protected activities. KenMor Electric Co., 355 NLRB No. 173,
slip op. at 4 (2010) (noting that the employer’s subjective motive for its action is irrelevant);
Yoshi’s Japanese Restaurant., Inc., 330 NLRB 1339, 1339 fn. 3 (2000) (same); see also Park N’ 30
Fly, Inc., 349 NLRB 132, 140 (2007).
C. Section 8(a)(3) Violations
The legal standard for evaluating whether an adverse employment action violates Section 35
8(a)(3) of the Act is generally set forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). To sustain a finding of
discrimination, the General Counsel must make an initial showing that a substantial or
motivating factor in the employer’s decision was the employee’s union or other protected
activity. Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003). The elements commonly required 40
to support such a showing are union or protected concerted activity by the employee, employer
knowledge of that activity, and animus on the part of the employer. Consolidated Bus Transit,
Inc., 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009); see also Relco
Locomotives, Inc., 358 NLRB No. 37, slip op. at 14 (2012) (observing that “[e]vidence of
suspicious timing, false reasons given in defense, failure to adequately investigate alleged 45
misconduct, departures from past practices, tolerance of behavior for which the employee was
allegedly fired, and disparate treatment of the discharged employees all support inferences of
JD–37–13
12
animus and discriminatory motivation”).
If the General Counsel makes the required initial showing, then the burden shifts to the
employer to prove, as an affirmative defense, that it would have taken the same action even in
the absence of the employee’s union or protected activity. Consolidated Bus Transit, Inc., 350 5
NLRB at 1066; Pro-Spec Painting, 339 NLRB at 949; Bally’s Atlantic City, 355 NLRB 1319,
1321 (2010) (explaining that where the General Counsel makes a strong initial showing of
discriminatory motivation, the respondent’s rebuttal burden is substantial), enfd. 646 F.3d 929
(D.C. Cir. 2011). The General Counsel may offer proof that the employer’s reasons for the
personnel decision were false or pretextual. Pro-Spec Painting, 339 NLRB at 949 (noting that 10
where an employer’s reasons are false, it can be inferred that the real motive is one that the
employer desires to conceal — an unlawful motive — at least where the surrounding facts tend
to reinforce that inference.) (citation omitted); Frank Black Mechanical Services, 271 NLRB
1302, 1302 fn.2 (1984) (noting that “a 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 15
intact the inference of wrongful motive established by the General Counsel”). However, a
respondent’s defense does not fail simply because not all the evidence supports its defense or
because some evidence tends to refute it. Ultimately, the General Counsel retains the burden of
proving discrimination. Relco Locomotives, Inc., 358 NLRB No. 37, slip op. at 13.
20
The Wright Line standard does not apply where there is no dispute that the employer took
action against the employee because the employee engaged in activity that is protected under the
Act. In such a case, the only issue is whether the employee’s conduct lost the protection of the
Act because the conduct crossed over the line separating protected and unprotected activity.
Specifically, when an employee is disciplined or discharged for conduct that is part of the res 25
gestae of protected concerted activities, the pertinent question is whether the conduct is
sufficiently egregious to remove it from the protection of the Act. In making this determination,
the Board examines the following factors: (1) the place of the discussion; (2) the subject matter
of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in
any way, provoked by an employer’s unfair labor practice. Relco Locomotives, Inc., 358 NLRB 30
No. 37, slip op. at 13 (citing Atlantic Steel Co., 245 NLRB 814, 816 (1979)).
DISCUSSION AND ANALYSIS
A. Credibility Findings35
My credibility findings are generally incorporated into the findings of fact that I set forth
above. My observations, however, were that the witnesses who testified (Thorson, Frasz, Giese
and Swanson) generally were credible except in instances where they strayed into areas about
which they lacked personal knowledge (Frasz did this the most often). As noted above, where I 40
could not resolve a conflict in testimony between equally credible accounts, I gave the benefit of
the doubt to Respondent, since the Acting General Counsel bears the burden of proof.
45
JD–37–13
13
B. Did Respondent Violate the Act by Conditioning its Offer of Employment to Thorson on
Thorson Providing a Local 150 Withdrawal Card?
It is well established that an employer will run afoul of Section 8(a)(1) of the Act if it
requires employees to submit union withdrawal cards as a condition of their hire or continued 5
employment. See APF Carting, Inc., 336 NLRB 73, 79 (2001), enfd. 60 Fed. Appx. 832 (D.C.
Cir. 2003); Lemay Caring Center, 280 NLRB 60, 68 (1986), affd 815 F.2d 711 (8th Cir. 1987).
Respondent does not contest that basic premise here, but rather maintains that Thorson decided
on his own to obtain a Local 150 withdrawal card and provide it to Respondent. Respondent
adds that to the extent that Frasz did discuss union membership with Thorson when they first met 10
on October 24, 2011, Frasz did so only to raise the question of whether Thorson could be a
member of two unions in light of the union-security clause in Respondent’s collective-bargaining
agreement with Local 707.
I do not find Respondent’s arguments to be persuasive. First, it is undisputed that 15
Respondent accepted a copy of Thorson’s union withdrawal card when Thorson provided it on
his first day of work (July 23, 2012), and it is also undisputed that Respondent retained the
withdrawal card in its files. (See FOF, Section C(2), supra.) Those actions alone undermine
Respondent’s argument that Thorson took it upon himself to provide a Local 150 withdrawal
card, because it stands to reason that Respondent would have declined the withdrawal card when 20
Thorson offered it if Respondent indeed believed that the card was unnecessary.
Second, while Respondent did have a union-security clause with Local 707, nothing in
that clause prohibited employees from supporting or being members of other unions. Instead, the
union-security clause only required employees to become members of Local 707 by the 91st day 25
of their employment (a cutoff time that Thorson never reached). Since nothing in the union-
security clause required Thorson to withdraw from Local 150, much less to withdraw well before
Respondent hired him and well before the post-hire deadline for Local 707 membership, I did not
credit Frasz’ characterization of his conversation with Thorson about Thorson’s Local 150
membership. (See FOF, Sections A–B, supra.)30
Since Respondent’s arguments are not supported by the evidence, and the evidentiary
record shows that Respondent did indeed condition its job offer to Thorson on his providing a
Local 150 withdrawal card, I find that Respondent violated Section 8(a)(1) of the Act as alleged
in paragraph V(a) of the complaint.1835

18 Since it will not materially affect the remedy for this violation, and since the Acting General
Counsel implicitly abandoned the issue in its brief (by only arguing that Respondent’s request for a Local
150 withdrawal card violated Section 8(a)(1) of the Act, see GC Br. at 9), I decline to rule on whether
Respondent also violated Section 8(a)(3) of the Act when it required Thorson to provide a Local 150
withdrawal card at the time of his hire. In that connection, I note that there is no allegation in this case
that Respondent refused to hire or discharged Thorson because he failed to obtain a withdrawal card
(allegations that would be covered by Section 8(a)(3)), nor is there an allegation that Respondent
maintained a policy of not hiring workers unless they provided Local 150 withdrawal cards (also an
allegation that would be covered by Section 8(a)(3)). See Stafford Construction Co., 250 NLRB 1469,
1473 (1980) (finding that the employer violated Section 8(a)(3) of the Act by maintaining a policy of
refusing to hire applicants because of their membership in the union).
JD–37–13
14
C. Did Respondent Violate the Act when it Terminated Thorson?
The Acting General Counsel’s allegation that Respondent violated Section 8(a)(3) and (1)
of the Act when it terminated Thorson is covered by the well established Wright Line standard
for determining whether an employer took an adverse employment action against an employee 5
for discriminatory reasons. Applying that standard, I find that the Acting General Counsel
presented sufficient evidence to make an initial showing of discrimination. It is undisputed that
Thorson began advertising his support for Local 150 on October 11, 2012, by wearing union
attire (a hard hat with Local 150 stickers, and a union sweatshirt), and by speaking to
Respondent’s employees about the benefits of supporting Local 150. It is also undisputed that 10
Respondent was well aware of Thorson’s activities, since Thorson spoke directly to Swanson
about supporting Local 150, and Swanson reported Thorson’s activities to Frasz. I also find
sufficient evidence of anti-union animus, given that: Frasz conditioned its job offer to Thorson
on Thorson providing a Local 150 withdrawal card; Frasz stated (as communicated to Thorson
by Swanson) 19 that he would never go union and would rather go out of business before 15
Respondent went union; and Respondent terminated Thorson less than two weeks after he began
speaking to Respondent’s employees about supporting Local 150 (suspicious timing). North
Carolina License Plate Agency #18, 346 NLRB 293, 294 (2006), enfd. 243 Fed. Appx. 771 (4th
Cir. 2007) (suspicious timing of adverse employment action can provide strong evidence of an
employer’s animus).20

Since the Acting General Counsel made an initial showing of discrimination, the burden
shifts to Respondent to show, as an affirmative defense, that it would have terminated Thorson
even in the absence of his union activities. Although Respondent asserted three reasons for
Thorson’s termination in its October 26, 2012 letter to Thorson, at trial Respondent effectively 25
abandoned two of those reasons20 and zeroed in on one specific rationale for Thorson’s discharge
– that Thorson wore a hard hat that did not have the RFW and Bunge safety training stickers
attached, even after Swanson advised him of that problem on October 11 and 16. (See FOF,
Section II(C)(8), supra.)
30
I find that Respondent’s proffered explanation for Thorson’s termination is not credible,
and is a pretext for discrimination. First, I note that an inference of pretext is supported by the
fact that Frasz admitted that he made no effort to speak to Thorson to investigate the merits of
the alleged infractions. Frasz was willing to hear employee S.S.’s side of the story when Bunge

19 I note that Swanson himself was one of Respondent’s supervisors as defined by the Act. See
Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006) (outlining the standard for supervisory status
under the Act). Swanson served as Respondent’s underground superintendent at the Bunge worksite, and
Respondent itself identified Swanson as a supervisor in Thorson’s termination letter. (See FOF, Section
C(8), supra.)
20 Specifically, Respondent abandoned the following discharge rationale: (a) that Thorson took video
during working hours on two occasions; and (b) that Thorson left the worksite on October 17 without
notifying his supervisor (Swanson). Respondent’s decision to abandon those reasons is understandable,
given that Respondent initially tolerated Thorson’s photo taking; Swanson resolved the video recording
issue when it became a problem by simply telling Thorson to stop taking photographs and videos on the
job; and, regarding leaving the worksite, Respondent tolerated employees leaving the worksite briefly
(and without requesting permission) to run personal errands like picking up something to eat before the
lunch break. (FOF, Section II(C)(7)–(8).)
JD–37–13
15
cited S.S. for a safety glasses infraction, but he did not extend the same consideration to Thorson
when Thorson’s hard hat stickers became an issue only a few weeks later. See Relco
Locomotives, Inc., 358 NLRB No. 37, slip op. at 14 (2012) (evidence that the respondent failed
to adequately investigate alleged misconduct supports an inference of animus and discriminatory
motivation).5
Second, I find that Respondent has offered shifting (and inaccurate) descriptions of the
alleged infractions that led to Thorson’s termination. For example, Respondent incorrectly
asserted that Thorson made video recordings at the worksite in October, when Thorson in fact
made those recordings earlier, and Respondent addressed the issue by simply telling him to stop. 10
Additionally, Respondent cited Thorson in his termination letter for wearing a noncompany hard
hat of unknown age and quality despite allowing other employees to engage in that conduct, but
then abandoned that aspect of Thorson’s alleged hard hat infraction at trial (focusing instead on
the safety training stickers for the hard hat). See Master Security Services, 270 NLRB 543, 552
(1984) (animus demonstrated where an employer used a multiplicity of reasons to justify 15
disciplinary action).
And third, I find that although Thorson’s failure to display the proper safety stickers on
his hard hat (despite two verbal reminders to do so) arguably warranted some corrective action, it
did not supply a basis for termination given Respondent’s disciplinary practices. The evidentiary 20
record shows that Respondent followed very informal and lenient disciplinary practices. For
most safety infractions on the job, and especially “technical” violations (i.e., violations where an
employee broke a safety rule, but there was no or very limited actual risk of injury), Respondent
did not issue discipline of any kind, but rather found it sufficient to verbally remind the
employee of the applicable rule and proper procedures. Indeed, Respondent followed that 25
approach when: employees (including Thorson before he began encouraging employees to
support Local 150) momentarily neglected to put their hard hats on; Bunge cited employee S.S.
for removing his safety glasses to clean them because they were covered with muddy water; and
Thorson took unwelcome photographs/video at the worksite. Respondent’s disciplinary
practices were in fact so informal that the only written disciplinary action in the evidentiary 30
record is from 2003, when Respondent cited S.S. for multiple deficiencies and infractions
(including running the Bobcat in high gear despite being told twice not to do so), but still only
took the limited step of issuing a written warning. However, when Thorson began organizing for
Local 150, Respondent’s leniency disappeared, and it terminated Thorson for not displaying
safety stickers as verbally advised, even though Respondent had only issued a written warning 35
when confronted with similar circumstances in the past (with employee S.S., who also did not
respond to verbal corrections). See Medic One, Inc., 331 NLRB 464, 475 (2000) (evidence of
departures from past practices, tolerance of behavior for which the employee was allegedly fired,
and disparate treatment of the discharged employee all supports an inference of animus and
discriminatory motivation).40
Given the strength of the Acting General Counsel’s initial showing of discrimination,
and the evidence demonstrating that Respondent’s proffered reasons for Thorson’s termination
(as set forth in Thorson’s termination letter and at trial) were pretexts for discrimination, I find
that Respondent terminated Thorson for discriminatory reasons in violation of Section 8(a)(3) 45
and (1) of the Act, as alleged in paragraph V(b) of the complaint.
JD–37–13
16
CONCLUSIONS OF LAW
1. By conditioning its June 23, 2012, offer of employment to Erik Thorson on his
withdrawal from Local 150, Respondent violated Section 8(a)(1) of the Act.5
2. By discharging Erik Thorson on or about October 20, 2012, because he engaged in
union and protected concerted activities, Respondent violated Section 8(a)(3) and (1) of the Act.
3. The unfair labor practices stated in conclusions of law 1–2 above are unfair labor 10
practices that affect commerce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 15
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent, having discriminatorily discharged employee Erik Thorson, must offer
him reinstatement and make him whole for any loss of earnings and other benefits. Backpay 20
shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
For all backpay required herein, Respondent shall file a report with the Social Security 25
Administration allocating backpay to the appropriate calendar quarters. Respondent shall also
compensate the discriminatee for the adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year, Latino Express, Inc., 359 NLRB
No. 44 (2012).
30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended21
ORDER
35
Respondent, A.E. Frasz, Inc., Elburn, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
40
(a) Conditioning offers of employment to job applicants on the applicant withdrawing
from the International Union of Operating Engineers, Local 150, AFL-CIO or any other union.

21 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–37–13
17
(b) Discharging or otherwise discriminating against any employee for supporting the
International Union of Operating Engineers, Local 150, AFL-CIO or any other union.
(c) Discharging or otherwise discriminating against any employee for engaging in union
or concerted activities protected by Section 7 of the Act.5
(d) 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.10
(a) Within 14 days from the date of the Board’s Order, offer Erik Thorson full
reinstatement to his former job or, if his job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
15
(b) Make Erik Thorson 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.
(c) Within 14 days from the date of the Board’s Order, remove from its files any 20
reference to the unlawful discharge of Erik Thorson, and within 3 days thereafter notify Erik
Thorson in writing that this has been done and that the discharge will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional 25
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.
30
(e) Within 14 days after service by the Region, post at its facilities in Elburn, Ohio,
copies of the attached notice marked “Appendix.”22 Copies of the notice, on forms provided by
the Regional Director for Region 13, 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. 35
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In addition to physical posting of paper notices, the
notice 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. Further, the Respondent shall mail copies of the attached notice, at 40
its own expense, to all current and former employees who were employed by the Respondent at
any time from the onset of the unfair labor practices found in this case until the date of this

22 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–37–13
18
decision. The notice shall be mailed to the last known address of each of the employees after
being signed by the Respondent’s authorized representative.23
(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 5
the Respondent has taken to comply.
Dated, Washington, D.C. May 28, 2013
10
________________________
GEOFFREY CARTER
Administrative Law Judge15

23 I am requiring Respondent to mail notices because the trial testimony indicated that many
employees do not work at Respondent’s Elburn, Illinois facility, but rather simply report directly to
Respondent’s various worksites.
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 condition our offers of employment to job applicants on the applicant
withdrawing from the International Union of Operating Engineers, Local 150, AFL-CIO or any
other union.
WE WILL NOT discharge or otherwise discriminate against any employee for supporting the
International Union of Operating Engineers, Local 150, AFL-CIO or any other union.
WE WILL NOT discharge or otherwise discriminate against any employee for engaging in union
or concerted activities protected by Section 7 of the National Labor Relations Act (the Act).
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order, offer Erik Thorson full
reinstatement to his former job or, if his job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Erik Thorson whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, plus interest compounded daily.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Erik Thorson, and within 3 days thereafter notify Erik
Thorson in writing that this has been done and that the discharge will not be used against him in
any way.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate quarters.
WE WILL compensate Erik Thorson for the adverse tax consequences, if any, of receiving one
or more lump-sum backpay awards covering periods longer than 1 year.
A.E. FRASZ, 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: Error! Hyperlink reference not valid.
The Rookery Building, 209 South LaSalle Street, Suite 900, Chicago, IL 60604-5208
(312) 353-7570, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (312) 353-7170.