Spirit Construction Services

National Labor Relations Board - Board Decisions

Nov 16, 2007

351 N.L.R.B. 1042 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
351 NLRB No. 56
1042
Spirit Construction Services, Inc. and Wisconsin Pipe
Trades Association. Cases 30–CA–17601 and 30–
CA–17604
November 16, 2007
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On April 27, 2007, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Spirit Construction Services,
Inc., Green Bay, Wisconsin, and Savannah, Georgia, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Andrew S. Gollin, Esq., for the General Counsel.
Robert J. Janssen and Michael J. Kirschling, Esqs. (Stellpflug,
Janssen, Hammer, Kirschling & Bartels, S.C.), of DePere,
Wisconsin, for the Respondent.

1 The judge found that the Respondent did not demonstrate “special
circumstances” entitling it to prohibit employees David Neumeyer and
Nathan Brunner from wearing a union sticker on their hardhats. In so
ruling, the judge stated that the “Respondent is not entitled to rely on a
rationale that it did not raise at the time it ordered the removal of the
stickers.” We do not read the judge’s statement as a per se rule pre-
cluding an employer from raising, as an affirmative defense, a rationale
for giving an order unless that rationale was specifically stated to the
employee(s) at the time of the order. To the extent that the judge’s
statement could be read as such a per se rule, we disagree.
In view of the adoption of the judge’s finding that the Respondent
violated Sec. 8(a)(1) by directing employee Brunner to remove a union
sticker from his hardhat, Member Kirsanow finds it unnecessary to pass
on the judge’s finding of a like violation with respect to employee
Neumeyer. Any such violation is cumulative and does not affect the
remedy or Order.
2 Although the Respondent has not specifically excepted to the
judge’s credibility findings, the Respondent challenges rulings based on
those findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. 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.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Green Bay, Wisconsin, on March 13, 2007. The
charges were filed on October 13 and 17, 2006, and the com-
plaint was issued December 27, 2006.
The General Counsel alleges that on October 9, 2006, Re-
spondent, Spirit Construction Services, Inc., by its alleged su-
pervisor and agent, Charles Jones, violated Section 8(a)(1) in
suggesting that it would be futile for employees to select the
Union, the Wisconsin Pipe Trades Association, as their bar-
gaining representative and that Jones threatened employees that
Respondent would cease its operations in Wisconsin if employ-
ees organized. The General Counsel also alleges that Respon-
dent violated Section 8(a)(1) by prohibiting employees Nathan
Brunner and David Neumeyer from wearing a union sticker on
October 11, and violating Section 8(a)(3) by terminating the
employment of Nathan Brunner on October 12.
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 is a construction company, specializing in work
for the paper and pulp industry. Its headquarters are in Savan-
nah, Georgia, and it maintains an office in Green Bay, Wiscon-
sin, where it annually purchases and receives goods and materi-
als valued in excess of $50,000 directly from suppliers outside
of the State of Wisconsin. Respondent admits and I find that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union, the
Wisconsin Pipe Trades Association, is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Throughout 2006, Respondent had several construction pro-
jects in the State of Wisconsin. The largest, by far, involved
the installation of new tissue machine at a Proctor and Gamble
facility in or near Green Bay. Another major project involved
Georgia Pacific facilities in the Green Bay area. This matter
involves events at the Georgia Pacific West project during Oc-
tober 2006.
The Events of October 9, 2006
On October 9, 2006, employee David Neumeyer handed a
letter to Charles Jones, Respondent’s highest ranking individual
on the Georgia Pacific West site. The letter was addressed to
Douglas Barone, Spirit’s vice president and general manager,
its highest ranking official in the State of Wisconsin.
Neumeyer’s letter advised Barone that he was a supporter of
the Union and would be assisting the Union in its effort to or-
ganize Respondent.
Neumeyer then had a conversation with Jones that he se-
cretly recorded. Jones was surprised to receive the letter and
initially asked Neumeyer if the letter was his 2-weeks notice.
Neumeyer informed Jones that he was a union supporter. Jones
asked him why and Neumeyer indicated he was supporting the
SPIRIT CONSTRUCTION SERVICES 1043
Union for financial reasons. A few minutes into the conversa-
tion, Jones stated:
I know that. I know that. But I know Van Den Heu-
vel1 will shut er down.
Van Den Heuvel will shut er down. I know that. He’ll
shut er right up. They’ll roll the doors up. They’ll finish
the P&G project and everything will be on the road. We’ll
just quit working around here.
GC Exhibits 17, 18.
Credibility Resolution Between David Neumeyer
and Charles Jones
I find David Neumeyer’s testimony to be completely credi-
ble and that the tape of his conversation with Charles Jones on
October 9, 2006, and the transcript of that tape are accurate in
all material respects. First, I would note that the tape was in-
troduced into the record without any objection by Respondent
and without any voir dire examination by Respondent’s coun-
sel. On April 9, 2007, I listened to the tape in my office and
compared it to the transcript. The transcription is accurate in
all material respects, particularly with regards to Jones’ com-
ments about the reaction of Respondent’s CEO Stephen Van
Den Heuvel to an organizing drive. Moreover, there is nothing
on the tape that indicates that it is anything but a recording of
Neumeyer’s conversation with Jones on October 9.
Jones, on the other hand, totally destroyed his credibility as a
witness by denying that he was the person whose voice was
captured on the tape (Tr. 198, 200). His testimony is neither
consistent nor coherent. Jones testified that, “I don’t remember
having that actual conversation identical exactly to that with
Dave Neumeyer (Tr. 200).” He testified that he didn’t remem-
ber making the statements about CEO Van Den Heuvel’s reac-
tion. Then, Jones testified that he told Respondent’s attorneys
that, “I do remember having a conversation with Dave
Neumeyer but it wasn’t identical to that (Tr. 201).” When I
asked Jones whether he recalled Neumeyer giving him a letter
about his support for the Union, Jones admitted that he did
recall that and that he also recalled having a conversation with
Neumeyer about it (Tr. 202). It is beyond any reasonable doubt
that Jones’ comments to Neumeyer on October 9 were exactly
those captured on the tape and recorded in the transcript, GC
Exh. 18.

1 Stephen Van Den Heuvel is Respondent’s chief executive officer.
His principal office is in Savannah, Georgia.
The Agency Status of Charles Jones2
Board law regarding the principles of agency is set forth and
summarized in its decision in Pan-Oston Co., 336 NLRB 305
(2001). The Board applies common law principles in determin-
ing whether an employee is acting with apparent authority on
behalf of the employer when that employee makes a particular
statement or takes a particular action. Apparent authority re-
sults from a manifestation by the principal to a third party that
creates a reasonable belief that the principal has authorized the
alleged agent to perform the acts in question. Either the princi-
pal must intend to cause a third person to believe the agent is
authorized to act for him, or the principal should realize that its
conduct is likely to create such a belief.
The Board also stated in Pan-Oston, supra, that the test for
determining whether an employee is an agent of the employer
is whether, under all the circumstances, employees would rea-
sonably believe that the employee in question was reflecting
company policy and speaking and/or acting for management.
The Board considers the position and duties of the employee in
addition to the context in which the behavior occurred. It also
stated that an employee may be an agent of the employer for
one purpose but not another.
In October 2006, the highest ranking Spirit Construction em-
ployee who was onsite at the Georgia Pacific West project on a
daily basis was Charles Jones. Respondent had more than one
crew on the project and the crew leaders or leadpersons re-
ported to Jones. Respondent paid for business cards that identi-
fied Jones as a supervisor of Spirit Construction. Spirit denies
that Jones is either a supervisor pursuant to Section 2(11) of the
Act, or its agent, pursuant to Section 2(13) of the Act.
Nevertheless, Respondent’s vice president and general man-
ager, Douglas Barone, Spirit’s highest ranking management
official in the State of Wisconsin, describes Jones as “a conduit
of information” from the office to the field and from the field to
the office. He concedes that “it is reasonable for the employees
to believe that Mr. Jones is speaking on behalf of management
when he tells the employees instructions that [Barone] has
given to him (Tr. 183).” This testimony in essence concedes
that Jones was an agent of Respondent pursuant to Section
2(13) of the Act, D & F Industries, 339 NLRB 618, 619 (2003).
When the project managers for Georgia Pacific wanted Spirit
employees to stop or interrupt one task to work on another, it

2 I believe it is unnecessary to the resolution of this case to decide
whether the General Counsel has established that Jones was a “supervi-
sor” pursuant to Sec. 2(11) of the Act. However, I conclude that the
General Counsel has not met its burden of proving supervisory status. I
find that he has not established that Jones exercised “independent
judgment” in assigning employees. The record merely establishes that
when Georgia Pacific wanted employees reassigned they contacted
Jones, who transmitted Georgia Pacific’s orders. As to his ability to
grant employees’ time off, it has not been established that Jones did
anything more than make an “obvious and self-evident choice.” This is
insufficient discretion to establish his authority to exercise “independ-
ent judgment” and thus establish that Jones was a “supervisor,” Oak-
wood Healthcare, Inc., 348 NLRB 686, 693–694 (2006). The fact that
Jones was Respondent’s highest ranking employee on the Georgia
Pacific site does not establish his supervisory status, Training School at
Vineland, 332 NLRB 1412 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1044
was Jones who told Spirit employees to stop what they were
doing and go to another location on site. When Spirit employ-
ees on the Georgia Pacific site wanted time off of work, they
asked Jones, who gave them an affirmative or negative answer
almost immediately.
That employees believed that Jones spoke on behalf of man-
agement is also established by the fact, discussed in more detail
below, that when Jones ordered employees David Neumeyer
and Nathan Brunner to remove a union sticker from their hard
hats, they did so. When Jones told Brunner that he was being
laid off, Brunner obviously believed that Jones was speaking
for Spirit Construction.
Thus, I conclude that Charles Jones was an agent of Respon-
dent as defined in Section 2(13) of the Act when indicating to
Neumeyer that it would be futile to organize Spirit, when he
told Neumeyer that CEO Van Den Heuvel would shut down its
Wisconsin operations if employees unionized and when he
ordered Neumeyer and Brunner to remove a union sticker.
October 10 and 11, 2006
On October 10, Spirit employee David Neumeyer placed
several union stickers on his hard hat. One of these stickers,
GC Exh. 15, was rectangular in shape and had the following
words on it:
CATCH THE UNION
(in red letters)
SPIRIT
(in blue letters superimposed on an American flag)
FOR A BETTER LIVING
(in blue letters)
Neumeyer gave the “Catch the Union Spirit” sticker to his
helper, Nathan Brunner, also a Spirit employee, who affixed it
to his hard hat. Neumeyer’s hard hat had the word Spirit on it
in white letters; other than that it had nothing on it identifying
Neumeyer as a Spirit employee.
At about 2 or 2:30 p.m., the following day, October 11,
Neumeyer and Brunner were working beneath a paper machine
at the Georgia Pacific West site, demolishing a scrubber, when
they were visited by Charles Jones. Jones told both employees,
in a stern manner, to remove the “Catch the Spirit” sticker from
their hardhats. They both did so. Neumeyer had other union
stickers on his helmet, but none of them could be viewed as
specifically directed to the employees of Spirit Construction.
The only union sticker Brunner had on his helmet was the
“Catch the Spirit” sticker. Respondent’s employees were gen-
erally allowed to wear other types of stickers on their hardhats
and regularly did so.
Thursday, October 12, 2006
Nathan Brunner reported to work at the Georgia Pacific West
site at 6:45 a.m. on Thursday, October 12. As soon as he ar-
rived, Charles Jones summoned Brunner to his truck and in-
formed him that he was being laid off. Brunner asked Jones if
this was a permanent layoff; Jones told him it was temporary,
that there wasn’t enough work. Jones then asked Brunner if he
had his truck to pick up his tools. Brunner’s tools were already
sitting in the back of Jones’ truck.
Brunner had been scheduled to work that entire week demol-
ishing the scrubber that he had been working on with
Neumeyer on October 11 (GC Exh. 7). Thus, Brunner was
scheduled to work Thursday, October 12, and Friday, October
13.
After Brunner was laid off, or fired, Respondent’s employees
began working considerably more overtime hours than they had
been previously, almost immediately (GC Exh. 8). Contrary to
its normal practice, Respondent laid off Brunner, a “direct
hire,” while retaining at least one employee, Jerry Barta, who
was working for it through a temporary employment agency
(Tr. 133–134). About 2 weeks later, on October 30, Respon-
dent directly hired two entry-level employees, David Galbraith
and Jake Process, to work on the Georgia Pacific West project.
Brunner’s “Nate’s In Heaven” Letter
Several weeks after he was either laid off or fired, either in
late October 2006, or early November 2006, Nathan Brunner
sent Respondent a letter, R. Exh. 4, drafted with the assistance
of the Union, entitled “Nate’s In Heaven.” The first paragraph
recounted that he was fired by Jones the day after he wore the
“Catch the Spirit” sticker. The second paragraph informed the
reader about his new job as a union employee. The third para-
graph discussed his goal to become a journeyman within a few
years.
The fourth paragraph of Brunner’s letter apologized to fel-
low employees for not saying goodbye and concluded “it sure
feel’s like I’m working in heaven now.” As a postscript, Brun-
ner asked employees, “to support Nate and Dave’s struggle to
win a better standard of living for all Spirit employees by dis-
playing the enclosed hard hat sticker.” This record does not
indicate whether the enclosed sticker was the one worn by
Brunner and Neumeyer on October 11. The only criticism of
Respondent in the letter appears in the first paragraph and ac-
cuses Spirit of showing him a “lack of respect” in discharging
him and being motivated by communicating “the big scare of
losing your job” and a desire to keep “a thumb on its workers.”
The relevance of this letter is that Respondent intimates that
it demonstrates the kind of “bad attitude” that entitled it to se-
lect Brunner for layoff and/or that it entitled it to refuse to re-
call him when it claims that work picked up on the Georgia
Pacific site at the end of October. Respondent may also be
suggesting that a reinstatement order would be inappropriate
even if the Board finds that Brunner’s termination was unlaw-
ful.
Respondent, by Charles Jones, Violated Section 8(a)(1) by
Threatening David Neumeyer with the Cessation of Respon-
dent’s Operations in the Event of Unionization and in
Indicating the Futility of Seeking Union Representation
Since I have found Charles Jones to have been an agent of
Respondent when he spoke to David Neumeyer on October 9,
2006, I impute his statements that CEO Van Den Heuvel would
shut down its Wisconsin operations in the event of unioniza-
tion, to Spirit Construction. Respondent can reasonably be held
liable for Jones’ statements in that Neumeyer would reasonably
have believed that Jones was transmitting management’s views
on unionization, Einhorn Enterprises, 279 NLRB 576 (1986),
enfd. 843 F.2d 1507 (2d Cir. 1988).
SPIRIT CONSTRUCTION SERVICES 1045
An employer may make a prediction as to the precise effects
of unionization on its company. However, such a prediction
must be carefully phrased on the basis of objective fact to con-
vey the employer’s belief as to probable consequences beyond
the employer’s control or to convey a management decision
already arrived at to close its facility in the event of unioniza-
tion, NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). If
an employer makes statements regarding the closing of a facil-
ity that are not based on objective fact, or a decision that has
not already been made, it violates Section 8(a)(1). The same is
true if an employer makes assertions indicating that an organiz-
ing effort would be a useless endeavor.
There is nothing in this record to suggest that Jones’ state-
ments were predictions carefully phrased on objective fact, or a
management decision already made. Therefore I find that
Jones’ comments violated Section 8(a)(1), Consolidated Biscuit
Co., 346 NLRB 1175, 1175 fns. 4 and 5 (2006). Additionally
Jones violated Section 8(a)(1) in suggesting to Neumeyer that
any effort to organize Respondent would be futile, Albert Ein-
stein Medical Center, 316 NLRB 1040 (1995).
Respondent, by Charles Jones, Violated Section 8(a)(1) in
Prohibiting David Neumeyer and Nathan Brunner from Wear-
ing the “Catch the Spirit” Union Sticker on Their Hardhats
In the absence of special circumstances, employees have a
Section 7 right to wear insignia at work referring to unions or
other matters pertaining to working conditions for the purpose
of mutual aid or protection. The Board has found “special cir-
cumstances” in which the interest of employees in the wearing
of insignia is outweighed by an employer’s legitimate interest
in maintaining discipline, safety, or efficient production, Mid-
state Telephone Corp., 262 NLRB 1291, 1292 (1982), enfd.
denied 706 F.2d 401 (2d Cir. 1983). Respondent has not dem-
onstrated any such interests with regard to the “Catch the
Spirit” sticker.
When Respondent’s agent, Charles Jones, ordered employ-
ees Neumeyer and Brunner to remove the “Catch the Spirit”
sticker from their hardhats, he gave them no reason for the
command. On this basis alone, I conclude that Respondent has
not demonstrated “special circumstances” entitling it to prohibit
the wearing of the sticker. I discredit the “after-the-fact” rea-
son, proffered by Respondent’s Vice President and General
Manager Doug Barone, and find moreover, that Respondent is
not entitled to rely on a rationale that it did not raise at the time
it ordered the removal of the stickers.
In any event, Barone contends:
. . . it could be construed as defamation of the company logo
because . . . it’s too close to the logo. I mean it’s a flag in a
backdrop of spirit. The spirit lettering is identical or near to
identical . . . and the only other . . . difference is the fact that
the flag appears to be in the wind verses flat on the back of the
logo.
Tr. 172.
The Spirit logo, as it appears on Charles Jones’ business card
(GC Exh. 12), is an American flag, situated at an angle, with
the word “Spirit” in white letters superimposed on the flag’s
exaggeratedly wide stripes, which are much longer and dispro-
portionate compared to the square blue background for the
flag’s 20 white stars.
Respondent, in its answer to the complaint, alleged that any
request to remove a sticker was for the purposes of protecting
Spirit Construction’s trademark. However, by October 2006,
Respondent’s registration of its trademark had expired. It
sought to reregister the logo in late November 2006. Jones
testified that he ordered Neumeyer and Brunner to remove the
sticker because it would make it difficult for him to locate them
on the jobsite. However, this explanation is also clearly pretex-
tual in that Respondent allowed its employees to wear all kinds
of stickers on their hardhats and if anything, the “Catch the
Spirit” sticker would make it easier to locate Respondent’s
employees in a crowd.3
However, the important point is that the “Catch the Spirit”
sticker is a lawful appeal to other employees to support the
Union. It does not disparage Respondent in any manner. Re-
spondent has failed to establish that any “special circum-
stances’ exist that would entitle it to prohibit the wearing of the
“Catch the Spirit” sticker, even if it has obtained a valid trade-
mark registration since October. Therefore, I find that Respon-
dent, by Charles Jones, violated Section 8(a)(1) in ordering
Neumeyer and Brunner to remove this sticker.
Respondent Violated Section 8(a)(3) and (1) in Terminating
the Employment of Nathan Brunner
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must generally make an initial showing that
(1) the employee was engaged in protected activity; (2) the
employer was aware of the activity; and (3) that animus to-
wards the protected activity was a substantial or motivating
reason for the employer’s action. Once the General Counsel
makes this initial showing, the burden of persuasion shifts to
the Respondent to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in protected activity, Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (lst Cir. 1981); La Gloria Oil & Gas
Co., 337 NLRB 1120 (2002).
Nathan Brunner engaged in protected activity by wearing the
“Catch the Spirit” union sticker on his hardhat on October 10
and 11, 2006. On October 11, 2006, Respondent, in the person
of Charles Jones, became aware of Brunner’s union activity.
Jones’ threat to Neumeyer on October 9, and his command to
Neumeyer and Brunner to remove the sticker on October 11,
establishes the animus of Respondent towards Brunner’s union
activities. I infer discriminatory motive from the timing of
Brunner’s discharge. There simply is no credible alternative
explanation for the fact that Brunner was discharged the morn-
ing after Jones told him to remove the “Catch the Spirit” union
sticker from his hardhat.
Respondent has not made out a credible affirmative defense.
Doug Barone testified that he was unaware that Brunner had
worn the sticker when he decided to terminate his employment.
Barone did testify, however, that he did know that Neumeyer
wore the union sticker on his hardhat before he laid off or fired

3 In this regard Jones’ justification for prohibiting the wearing of the
sticker and Barone’s justification are clearly contradictory.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1046
Brunner (Tr. 171). Thus, Respondent is suggesting that Jones
told Barone that Neumeyer wore the “Catch the Spirit” sticker,
but did not mention to Barone that Brunner was wearing the
same sticker. I find this testimony to be incredible and find that
Barone knew on October 11 that both employees wore this
sticker on their hardhats. I base this finding in part on the in-
ference I draw from Brunner’s termination the very next morn-
ing, see Mays Electric Co., 343 NLRB 121, 127 (2004); Metro
Networks, 336 NLRB, 63, 65 (2001). An employer’s knowl-
edge of protected activity, its animus towards that activity4 and
the motive for an adverse personnel action may be inferred
from circumstantial evidence.
Respondent offers several explanations for the lay-
off/termination of Brunner. Each begs the question as to why
he was laid off on October 12, the day after Jones saw Brunner
wearing a union sticker. The evidence not only fails to estab-
lish that Brunner was laid off for a lack of work; it indicates
just the opposite. The increase in overtime worked after Brun-
ner’s termination, the retention of at least one temporary em-
ployee and hiring of two permanent employees on October 30
establishes that Respondent’s claim that Brunner was laid off
for lack of work is pretextual.
Furthermore, Respondent has been very inconsistent as to its
reasons for laying-off/terminating Brunner. In its answer to the
complaint allegation that Brunner was terminated, Respondent
stated that Brunner was laid off. In its position statement sub-
mitted during the investigation, Respondent also stated that
Brunner was laid off, not discharged, although it did indicate
that he was selected for layoff due to his “bad attitude.”
Respondent introduced a great deal of evidence regarding the
fact that Proctor and Gamble had kicked Brunner off its jobsite
for a very serious safety infraction several months earlier.
However, Respondent did not even discipline Brunner for this
infraction and retained him as an employee.
Spirit also cites Brunner’s “bad attitude” as reflected in re-
peated complaints about his pay and assignment to Respon-
dent’s shop in the summer of 2006. Nevertheless, Respondent
neither disciplined nor terminated Brunner until he wore the
union sticker. Finally, Respondent relies on an incident which
occurred several weeks prior to October 12, in which Respon-
dent’s safety director, Bob Thomson, saw Brunner on the
Georgia Pacific West jobsite without ear plugs. Brunner testi-
fied that there were no ear plugs in the supply cabinet and that
he told Thomson to “go get me ear plugs.” Thomson testified
that Brunner said, “why don’t you fucking get me some.”
Regardless, of which version of the ear plug incident is accu-
rate, Respondent did not discipline Brunner in any way for that
incident, or for his attitude in general. On the morning of Oc-
tober 12, Jones said nothing to Brunner about his attitude. He
told Brunner that one of the tasks on the Georgia Pacific site,
the installation of a rewinder machine, was finishing up and

4 Respondent contends that the testimony of Douglas Barone estab-
lishes its lack of animus towards union activity. In fact, his testimony
shows merely that Respondent is willing to subcontract to unionized
employers in the Green Bay area, not that it has no animus regarding
union activity amongst its own employees. As the General Counsel
points out, Respondent has settled unfair labor practice charges in the
past by paying union members backpay.
that Respondent had too many men. Jones also told Brunner
that it would be calling him back when worked picked up (Tr.
196). I find this testimony completely inconsistent with Re-
spondent’s contention that Brunner’s attitude or performance
on the job had anything to do with the termination of his em-
ployment.
Respondent’s vacillation in explaining why Brunner’s em-
ployment ended on October 12, is another factor on which I
rely in concluding that his termination was motivated by the
fact that Respondent saw him wear a union sticker on the pre-
vious afternoon, Black Entertainment Television, 324 NLRB
1161 (1997). In a much earlier decision the Board explained:
Where an employer is unable to settle on a reason for dis-
charge, but vacillates between several asserted reasons, an in-
ference is warranted that the real reason for the discharge is
not among those advanced. In the context of Respondent’s
hostility to the Union and its other unfair labor practices it of-
ten becomes apparent that the real reason was the employee’s
union activity.
Steve Aloi Ford, 179 NLRB 229, 230 (1969).
Finally, Respondent cannot rely on the subsequent conduct
of Brunner in sending the “Nate’s in Heaven” letter to it and its
employees for its decision to terminate his employment. More-
over, nothing in the letter would make a reinstatement order
inappropriate. The “Nate’s in Heaven” letter is clearly union
activity that is protected by Section 7 of the Act, Postal Service,
241 NLRB 389 (1979). Respondent cannot rely on Brunner’s
“disdain” for it, or for his concession that he did not expect to
be recalled by Spirit after sending his letter. After all, as Brun-
ner correctly surmised, Respondent had unlawfully terminated
him due to his expression of support for the Union.
SUMMARY OF CONCLUSIONS OF LAW
1. Respondent, by it agent Charles Jones, violated Section
8(a)(1), on October 9, 2006, by threatening employee David
Neumeyer with cessation of Respondent’s Wisconsin opera-
tions if employees chose the Union as their authorized collec-
tive-bargaining representative.
2. Respondent, by its agent Charles Jones, violated Section
8(a)(1), on October 9, 2006, in indicating to David Neumeyer
that it would be futile for employees to choose the Union as
their authorized collective-bargaining representative.
3. Respondent, by its agent Charles Jones, violated Section
8(a)(1), on October 11, 2006, in directing employees David
Neumeyer and Nathan Brunner to remove a union sticker from
their hardhats.
4. Respondent violated Section 8(a)(3) and (1) by terminat-
ing the employment of Nathan Brunner on October 12, 2006.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Nathan
Brunner, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
SPIRIT CONSTRUCTION SERVICES 1047
reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Spirit Construction Services, Inc., Green
Bay, Wisconsin, and Savannah, Georgia, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting the Wisconsin Pipe Trades Association,
or any other union.
(b) Threatening employees with cessation of its operations,
or closure of a facility if they choose to be represented by a
labor organization.
(c) Indicating that it would be futile for its employees to
choose to be represented by a labor organization.
(d) Prohibiting employees from wearing insignia supporting
the Union, or any other union.
(e) 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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Nathan Brunner 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 privi-
leges previously enjoyed.
(b) Make Nathan Brunner 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 deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify Nathan Brunner 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 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 re-
cords, 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.
(e) Within 14 days after service by the Region, post at its
Green Bay, Wisconsin construction sites, copies of the attached

5 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 pur-
poses.
notice marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 30, 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. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since October 9, 2006.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 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 or otherwise discriminate against any
of you for supporting the Wisconsin Pipe Trades Association,
the Union, or any other union.
WE WILL NOT threaten you with the cessation of our Wiscon-
sin operations if you choose the Union, or any other union, as
your authorized collective-bargaining representative.
WE WILL NOT suggest that it would be futile for you to choose
the Union, or any other union, as your authorized collective-
bargaining representative.
WE WILL NOT prohibit you from wearing insignia supporting
the Union, or any other union on our worksites.
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
Nathan Brunner full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,

6 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1048
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Nathan Brunner whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Na-
than Brunner and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the discharge will not
be used against him in any way.
SPIRIT CONSTRUCTION SERVICES, INC.