Tschiggfrie Properties, LTD

National Labor Relations Board - Administrative Judge Opinions

Jun 24, 2016

25-CA-161304 (N.L.R.B. Jun. 24, 2016)

JD−55−16
DUBUQUE, IA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TSCHIGGFRIE PROPERTIES, LTD
and CASE 25–CA–161304
TEAMSTERS LOCAL 120, a/w
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
Derek Johnson, Esq., for the General Counsel.
Davin Curtiss Esq., (O'Connor & Thomas, P.C)
of Dubuque, IA, for the Respondent.
Kyle A. McCoy, Esq., (Soldon Law Firm) of
Middleton, WI, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. The Respondent did it backwards,
discharging a known union supporter and then investigating. Previously, the Respondent had
warned this employee, in writing, not to discuss the union with other workers. Evidence obtained
after the discharge neither can rebut the inference that antiunion animus was a substantial
motivating factor nor establish that the Respondent would have fired the employee anyway, even
if he had not led a successful union organizing campaign.
Procedural History
This case began on October 5, 2015, when the Union, Teamsters Local 120, affiliated with
International Brotherhood of Teamsters, filed an unfair labor practice charge against the
Respondent, Tschiggfrie Properties, Ltd., with Region 25 of the National Labor Relations Board,
which docketed the charge as Case 25–CA–161304. The Union amended this charge on January
12, 2016.
On January 28, 2016, the Acting Regional Director for Region 25 issued a complaint and
notice of hearing, referred to below simply as the complaint. In doing so, she acted on behalf of,
and pursuant to authority delegated by, the Board's General Counsel. Respondent filed its answer
on February 22, 2016.
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2
On April 14, 2016, a hearing opened before me in Dubuque, Iowa. The parties finished
presenting evidence on April 15, 2016, and I adjourned the hearing. On May 27, 2016, it
resumed by conference call, counsel presented oral arguments, and then the hearing closed.
5
Admitted Allegations
The Respondent admitted a number of allegations in its answer or by stipulation at the
hearing. Based on those admissions, I find that the General Counsel has proven the allegations
raised in complaint paragraphs 1(a), 1(b), 2(a), 2(b), 2(c), 3, 4, and 5(b).10
More specifically, I find that the Union filed and served the charge and amended charge as
alleged in complaint paragraphs 1(a) and 1(b).
Further, I find that Respondent is an employer engaged in commerce within the meaning 15
of Section 2(2), (6) and (7) of the National Labor Relations Act. Additionally, I find that the
Respondent meets all relevant standards for assertion of the Board's jurisdiction.
Additionally, I find that Respondent's president, Ed Tschiggfrie, and his son, Rodney
Tschiggfrie, who is Respondent's general manager, are supervisors and agents of the Respondent 20
within the meaning of Section 2(11) and 2(13) of the Act.
Further, I find that, at all material times, the Union was a labor organization within the
meaning of Section 2(5) of the Act.
25
Respondent has admitted, and I find, that on about October 1, 2015, it discharged its
employee Darryl Galle. The Respondent has denied that it did so because Galle had formed,
joined, or assisted the Union and had engaged in concerted activities, and to discourage employees
from engaging in these activities. It also denied that it had violated the Act. These allegations
will be discussed below.30
Disputed Allegations
Mechanics employed by the Respondent, Tschiggfrie Properties, Ltd., repair and maintain
trucks owned by another related business, Tschiggfrie Excavating. In the spring of 2015, the 35
Union began an organizing drive. On April 22, 2015, it filed a representation petition, which the
Board docketed as Case 25–RC–150678. The Respondent entered into an election agreement
with the Union. On May 13, 2015, Respondent's employees voted in a Board-conducted election
which the Union won.
40
Mechanic Darryl Galle served as the Union's observer during that election. However, the
Respondent knew about Galle's union activities even earlier. By mistake, the Union had placed
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3
Galle's name on the representation petition it had filed on April 22, 2015. The Union had listed
Galle on the petition as the management representative to contact, so when the Board sent a copy
of the petition to the Respondent, the envelope bore Galle's name.
General Manager Rodney Tschiggfrie testified that, after the election, at least two 5
employees complained to him that Galle was speaking to them about the union. Tschiggfrie
mentioned these complaints to the attorney Respondent had hired to negotiate with the Union.
The lawyer, Denis Reed, brought up this matter in a telephone conversation with Union Business
Agent Kevin Saylor. Reed also mentioned it in a May 20, 2015 email to Saylor. The email
stated:10
I have forwarded the Tschiggfrie Properties benefit structure as you asked.
Please speak to Darryl Galle as he continues to harass other employees on
company time. If it doesn't stop I will recommend steps be taken.15
Although Saylor was "pretty sure" he spoke with Galle about this matter, he could not
recall a specific conversation and neither could Galle. In any event, the record indicates that the
complaining employees complained further about Galle. In response, management issued Galle
a warning which the complaint alleges to be an unfair labor practice.20
Complaint Paragraphs 5 and 6(a)
Complaint paragraph 5 alleges that, about August 17, 2015, the Respondent instructed
employees not to discuss the Union during work. Complaint paragraph 6(a) alleges that, about 25
August 17, 2015, the Respondent issued to Galle a written disciplinary warning. Complaint
paragraph 6(c) alleges that the Respondent took this action because Galle formed, joined and
assisted the Union and engaged in concerted activities, and to discourage other employees from
doing so.
30
The Respondent denies these allegations. It also denies the conclusions, alleged in
complaint paragraphs 7 and 8, that it thereby violated the Act.
Both complaint paragraphs 5 and 6(a) refer to a written warning issued to Galle on August
17, 2015, and signed by the Respondent's president, Ed Tschiggfrie. The warning stated:35
This is an official notice of written warning for discussing union
organizational viewpoints with fellow employees during work. This
matter will stop immediately.
40
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4
Based on the credited testimony of General Manager Rodney Tschiggfrie, I find that his
father made the decision to issue the discipline at a meeting with the Respondent's attorney, Denis
Reed. General Manager Tschiggfrie also attended this meeting.
Section 8(a)(1) makes it unlawful for an employer "to interfere with, restrain, or coerce 5
employees in the exercise of the rights guaranteed in section 7" of the Act. 29 U.S.C. ' 158(a)(1).
Section 7 of the Act grants employees the "right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or other mutual aid or
protection," and also "the right to refrain from any or all of such activities… " 29 U.S.C. ' 157.10
To determine whether a manager's statement interferes with, restrains or coerces
employees in the exercise of Section 7 rights, the Board considers the effect the statement
reasonably would have on an employee under the totality of circumstances present. This
objective standard does not turn on the effect the statement actually had on a particular employee 15
but rather focuses on the effect such a statement reasonably would have on a typical employee.
El Paso Electric Co., 350 NLRB 151, 152 (2007), Sunnyside Home Care Project, 308 NLRB 346
fn. 1 (1992).
The Respondent did not prohibit its employees from discussing other topics during their 20
working time. It had no rule that employees refrain from talking with each other while "on the
clock."1
Employees reasonably would understand the August 17, 2015 letter, prohibiting
discussion of "union organizational viewpoints" but not other matters, as a warning that 25
employees would be subject to discipline for exercising their Section 7 rights. It therefore
reasonably would chill the exercise of those rights and violates Section 8(a)(1) of the Act.
Teledyne Advanced Materials, 332 NLRB 539 (2000).
Complaint paragraphs 6(a) and 6(c) allege that this same statement constitutes 30
discrimination unlawful under Section 8(a)(3) of the Act. If the warning had identified the
prohibited conduct as having discussions with other employees during working time, it would be
necessary to examine other evidence to determine what had motivated the Respondent to issue it.

1 Respondent's General Manager, Rodney Tschiggfrie, testified, in part, as follows:
Q. BY Mr. JOHNSON: Now, I want to check, Mr. Tschiggfrie, there is no
rule that the Company has now as to what employees can discuss while
they are at work, is there?
A. Correct.
Q. So employees are free to talk about the weather or how the Hawkeyes
are doing; is that correct?
A. That is correct.
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5
However, the warning itself identified the disfavored conduct as "discussing union organizational
viewpoints with fellow employees during work."
In the absence of any work rule categorically prohibiting employee discussions of any sort
during working time, there can be no doubt that prohibiting union-related discussions constitutes 5
discrimination based on protected activity. Therefore, it is not necessary to perform the type of
analysis needed when a disciplinary action arises from mixed motives or where an employer's
asserted reason for the discipline might be a pretext.
On its face, the August 17, 2015 warning letter constitutes discrimination for engaging in 10
protected activity. The record reveals no reason to believe that Galle had engaged in any
misconduct that would strip him of the Act's protection and I find that he did not. Therefore, I
conclude that the Respondent's issuance of this letter violated Section 8(a)(3).
The letter also prohibits the employee from engaging in similar protected activity in the 15
future. ("This matter will stop immediately.") This prohibition interferes with, restrains and
coerces employees in the exercise of Section 7 rights, and constitutes an independent violation of
Section 8(a)(1).
In sum, I recommend that the Board find that the Respondent violated Section 8(a)(1) of 20
the Act by the conduct alleged in complaint paragraphs 5 and 6(a), and that it violated Section
8(a)(3) by the conduct alleged in paragraph 6(a).
Complaint Paragraph 6(b)
25
Complaint paragraph 6(b) alleges that about October 1, 2015, the Respondent discharged
employee Darryl Galle. Complaint paragraph 6(c) alleges that Respondent did so because Galle
had formed, joined and assisted the Union and had engaged in protected activities, discourage
other employees from engaging in such activities. Complaint paragraphs 7 and 8 allege that the
discharge violated, respectively, Section 8(a)(1) and (3) of the Act.30
In its answer, the Respondent admits discharging Galle on about October 1, 2015, but
"denies said termination was related to any concerted or protected activities or to otherwise
discourage the exercise of same." The Respondent also denies that the discharge violated the Act.
35
General Manager Tschiggfrie testified that on the morning of October 1, 2015, he was
looking for Galle in connection with a repair. Galle was working on a piece of equipment.
Tschiggfrie went to a backroom where, he believed, he would find Galle working on the
equipment. Galle was not there, but Tschiggfrie saw two laptop computers sitting on the counter.
40
To repair heavy equipment, a mechanic sometimes must transmit data from the
equipment's onboard computer to a diagnostic website. To allow mechanics to access the
JD−55−16
6
Internet, the Respondent has established a Wi-Fi system protected by a firewall. The Respondent
provides laptops for the mechanics to use, but also allows them to bring in their own computers, if
they wish. Tschiggfrie believed that one of the computers on the counter belonged to the
Respondent and that the other belonged to Galle.
5
Tschiggfrie looked at the screen of the laptop he believed to be Galle's. On the screen, he
saw a website called "QuickFunnels.com" and tabs for other webpages that apparently had been
accessed but were not then being displayed. These tabs bore the names "GoGoDropShip.com,"
"Thunderball Marketing, Inc." and "Traffic Authority E-mail prof." Mechanics would not visit
any of these four websites in connection with their job duties.10
Tschiggfrie photographed the computer screen. He then continued to look for Galle until
realizing that it was breaktime.
A brief time later, Tschiggfrie, accompanied by the Office Manager, Ty Malcolm, 15
returned to the room and found Galle there. He recorded the ensuing conversation with Galle,
which began as follows:
Mr. TSCHIGGFRIE: Darryl, is this your laptop over here, or is this
the Company's?20
Mr. GALLE: No, it's mine.
Mr. TSCHIGGFRIE: Okay, were you on this before break?
25
Mr. GALLE: Off and on, yeah.
Mr. TSCHIGGFRIE: Okay.
Mr. GALLE: Just so you're aware, I don't take all of the pages 30
down. I just put it into sleep.
Mr. TSCHIGGFRIE: I just walked into this room about ten
minutes ago, Darryl, and this page was up. The computer wasn't
even sleeping, and just so you know, I photographed this, and it 35
appears, Darryl -- and I'm recording this conversation, Darryl.
It appears that you are doing something else, other than what you're
getting paid for. Is that pretty accurate?
40
Mr. GALLE: No, it's not.
JD−55−16
7
Mr. TSCHIGGFRIE: So, what were you doing on this computer,
looking at this stuff here, when I am hired to pay you to work on a
transmission?
Mr. GALLE: Getting the information because this 5
transmission -- because you don't have the manual for it.
Mr. TSCHIGGFRIE: Darryl, this is the page that is up, and let me
read it out loud here. It was -- I scrolled just a little bit. I am
sorry about this.10
'Part 2, the Automatic Authority Formula,' it says, 'The Automatic
Authority Formula is the art of using a well-designed welcome
e-mail sequence over the first five to seven days.'
15
It sounds like some kind of a business plan or something else, other
than what we would want to have at Tschiggfrie Excavating.
I think your first response is pretty accurate, that you're on your
computer here prior to work -- prior to break time here.20
Do you have anything else to say?
Mr. GALLE: I was looking for information on that transmission.
25
Mr. TSCHIGGFRIE: There's another laptop right here. Who
owns this laptop?
Mr. GALLE: That's yours.
30
Mr. TSCHIGGFRIE: Okay. Well, you know what? Darryl, as of
this moment, you are terminated.
And what I'll do is I'm going to take this computer --
35
Mr. GALLE: No, you're not taking that computer.
Mr. TSCHIGGFRIE: Yeah, I have a right. You are using it during
my company time. That computer is my property as of right now,
and you're --40
Mr. GALLE: No, you're not --
JD−55−16
8
Mr. TSCHIGGFRIE: Darryl, okay. You're terminated right now
for not cooperating with what I'm asking you to do.
Galle unplugged his laptop and would not let Tschiggfrie have it. After Galle left, 5
Tschiggfrie asked an information technology specialist, Victor Mowery, to visit the Respondent's
facility to investigate.
Although Mowery did not have access to Galle's laptop, the Respondent's firewall
recorded information about computers using the Respondent's Wi-Fi system to contact the 10
Internet. This information included the Internet address of each website visited and a number
uniquely identifying the computer which had accessed a particular website. Mowery concluded
that Galle's computer had visited websites unrelated to the websites which mechanics used to
perform their work.
15
Obviously, the information provided by Mowery could not have influenced Tschiggfrie's
decision to discharge Galle because Tschiggfrie did not obtain this information until after the
discharge. However, Mowery's testimony is relevant to Galle's credibility as a witness because
Galle expressly denied that he had used his computer, during working time, to visit websites
unrelated to work. In essence, Galle testified that he had used his laptop at home to visit certain 20
websites before coming to work, and that those websites remained on the computer screen. Galle
explained as follows why his laptop had displayed the "QuickFunnels.com" webpage while he
was at work:
Q. Okay. And the webpage, or the page that was up on your 25
computer, did you recognize that page?
A. Yes.
Q. And how do you -- why do you recognize that page?
A. When I use my computer, I'll open several screens and I 30
don't normally take them all down. My wife and I were in
the process of setting up a business at home, and I didn't
take all of the screens down, and I told Rod that, and you
know, the screens are up.
35
Q. And so --so that page is one of the screens that was up?
A. Yes.
Q. Okay. Had you reviewed that page while you were at
work that morning?40
A. Not on company time, no.
JD−55−16
9
Mowery's testimony, based on records from the Respondent's firewall, casts serious doubt
on Galle's claim that he had not accessed the "QuickFunnels.com" website at work. According to
Mowery, Respondent's firewall records show that a computer using Respondent's Wi-Fi visited
that website at 9:06 a.m. on October 1, 2015. Mowery testified that this computer had used the 5
host name "Darryls."
The Board's Rules do not provide for routine pretrial discovery in unfair labor practice
proceedings and there was no such discovery in the present case. Galle testified before Mowery
took the stand and therefore would not have known that Mowery would provide evidence 10
inconsistent with his denial. Moreover, the government did not recall Galle to offer rebuttal
testimony.
Mowery's testimony became quite technical at times, but that does not make it sacrosanct.
Possibly, a competing expert might have pointed out flaws in Mowery's analysis of the firewall 15
logs, but no competing expert testified. My personal experience with computers does not lead me
to believe these machines are infallible, but the present record does not provide any obvious,
specific ground which would call into question Mowery's interpretation of the firewall data.
Therefore, it would appear likely that, contrary to his testimony, Galle did use 20
Respondent's Wi-Fi to access websites unrelated to his job duties. Therefore, where Galle's
testimony conflicts with other evidence, I do not credit it. However, the case does not turn on the
reliability of Galle's testimony.
In determining whether Respondent violated Section 8(a)(3) of the Act when it discharged 25
Galle, I follow the framework the Board established by Wright Line, 251 NLRB 1083, 1089
(1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Under the Wright Line test, the General Counsel has the initial burden of establishing that
employees' union activity was a motivating factor in the Respondent's taking action against them.
The General Counsel meets that burden by proving union activity on the part of employees, 30
employer knowledge of that activity, and antiunion animus on the part of the employer. See
Willamette Industries, 341 NLRB 560, 562 (2004). If the General Counsel makes this initial
showing, the burden then shifts to the Respondent to prove as an affirmative defense that it would
have taken the same action even if the employees had not engaged in protected activity. Id. at
563; Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). See El Paso Electric Co., 350 NLRB 35
151 (2007)
Here, evidence independent of Galle's testimony suffices to carry the General Counsel's
initial burden. The record establishes that Galle engaged in union activity: He started the union
organizing campaign by contacting the Union and served as the Union's observer during the 40
election. The Respondent admitted knowing that Galle supported the Union. Moreover, the
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10
August 17, 2015 "official notice of written warning for discussing union organizational
viewpoints with fellow employees during work" establishes the presence of antiunion animus.2
The burden of proceeding therefore shifts to the Respondent, which must present evidence
showing that, when management considered whether to fire Galle, the presence of animus did not 5
tip the balance in favor of discharge. See North Fork Services Joint Venture, 346 NLRB 1025
(2006), citing Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
Carrying this substantial burden requires more than showing that some reason existed
which might justify the discharge. To establish this affirmative defense, "[a]n employer cannot 10
simply present a legitimate reason for its action but must persuade by a preponderance of the
evidence that the same action would have taken place even in the absence of the protected
activity." W. F. Bolin Co., 311 NLRB 1118, 1119 (1993), petition for review denied 70 F.3d 863
(6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996).
15
In Lampi LLC, 327 NLRB 222 (1998), the Board stated that in assessing whether a
respondent has established this defense, "we do not rely on our views of what conduct should
merit discharge. Rather we look to the Respondent's own documentation regarding [the alleged
discriminatee's] conduct, to its "Personnel Policy" handbook, and to the evidence of how it treated
other employees with recorded incidents of discipline." 327 NLRB at 222–223.20
However, if a respondent offers a pretextual reason for discharging an employee, that
falsehood dooms the respondent's rebuttal evidence to fail. Rood Trucking Co., 342 NLRB 895,
898 (2004). Here, the General Counsel argues that the Respondent's asserted reason is a pretext,
and that its evidence should not be considered. I disagree.25
If anything, this Respondent displays symptoms of candor. Typically, an employer bent
on subterfuge does not give a worker a letter stating that it is a "written warning for discussing
union organizational viewpoints with fellow employees."
30
The circumstances surrounding the discharge suggest almost an impulsive,
spur-of-the-moment decision, not a careful plot to conceal discrimination behind a crafted pretext.
For months, employees had been complaining about Galle to General Manager Tschiggfrie.

2 The Respondent notes that the August 17, 2015 warning letter was signed by the Respondent's president, Ed
Tschiggfrie, and not by General Manager Rodney Tschiggfrie, who made the decision to discharge Galle.
However, to prove animus sufficient to carry the government's initial burden, the General Counsel does not
have to prove a connection between the antiunion animus and the specific adverse employment action.
Lubertyville Toyota, 360 NLRB No. 141, slip op. at 4, fn. 10 (July 9, 2014); Nichols Aluminum, LLC 361
NLRB No. 22, slip op. at 3, fn. 7 (August 18, 2014). Additionally, President Ed Tschiggfrie made the
decision to issue the discipline during a meeting with General Manager Rodney Tschiggfrie and the
Respondent's attorney, Denis Reed.
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11
Some of these complaints had concerned Galle sleeping on the job, which resulted in other
employees having a heavier workload.
When Tschiggfrie asked Galle whether he had been sleeping on the job, Galle replied that
he was taking medicine which made him drowsy. Although Galle then provided Tschiggfrie with 5
a slip from his doctor, Tschiggfrie asked for further documentation, which Galle said he would
furnish. However, Tschiggfrie never received it.
On October 1, 2015, Tschiggfrie saw Galle's computer screen and concluded that he was
visiting websites unrelated to his job during working hours. Galle explained that he and his wife 10
had started a business and the websites were related to that business. However, Galle's
involvement in another business raised another possibility, that this outside work made Galle so
tired that he fell asleep on the job.
In these circumstances, it appears likely that mixed motives lead Tschiggfrie to discharge 15
Galle. Therefore, Respondent's evidence should be considered to determine whether it would
have made the same decision even if Galle had not engaged in protected activity.
As noted above, Wright Line and its progeny require the Respondent to present specific
evidence. In particular, how an employer treated similarly situated employees in the past gives a 20
good indication how it would have treated an alleged discriminatee in the absence of protected
activity. However, it is not the law that an employer can prevail only by showing prior identical
misconduct and discipline. Sara Lee d/b/a International Baking Company, 348 NLRB 1133
(2006).
25
The Respondent's employee complement falls between 5 and 8. With so few employees,
it would be unlikely to find a past instance when the Respondent disciplined an employee whose
conduct resembled Galle's except for the protected activity. Therefore, I draw no conclusion
from the absence of evidence regarding the Respondent's treatment of a similarly-situated
employee. 30
However, the Respondent also did not establish that it had any rule prohibiting employees
from visiting nonjob-related websites during working time.
Neither the Act nor the Board has set any standards concerning what conduct is sufficient 35
to warrant discharge. The Board's concern extends only to whether antiunion animus, or animus
arising out of an employee's protected activities, affected the decision-making process and, if so,
whether it affected the outcome.
In other words, the Board does not judge a particular disciplinary action based on some 40
abstract notion of "fairness." However, if the severity of the discipline seems disproportionate to
the gravity of the offense, it is appropriate to wonder whether some other factor, besides the
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12
offense, has affected the weighing of transgression versus punishment. If antiunion animus
exists, it could be the "dark matter" on the scales.
Here, General Manager Tschiggfrie decided to discharge Galle after concluding that Galle
had visited websites unrelated to his job during working time. The record does not establish that 5
the Respondent had any rule which required employees to visit only those websites necessary for
their work. There also is no evidence that Respondent ever told Galle not to visit websites
unrelated to work during working time. Under these circumstances, the decision to discharge
rather than to suspend or warn Galle seems harsh enough to raise the suspicion that some other
factor affected the decision.10
However, the Respondent characterizes Galle's misconduct not as wasting company time
but as stealing it. Moreover, the Respondent argues, this was not the first time Galle had stolen
company time. Earlier, he had been sleeping on the job. Thus, during oral argument,
Respondent's counsel stated that the discharge decision rested on more than the websites Galle had 15
visited when he should have been working:
[W]ebsiteusage. . .wasn't the only thing that he did a lot on the job. Mr.
Tschiggfrie at the time he terminated Mr. Galle, would have also had in his
state of mind and present in his thoughts, the other theft of time that Mr. 20
Galle engaged in, that is sleeping on the job. The record is replete with
examples of it. He slept -- he was observed sleeping in the back of a blue
Ford pickup truck, in the bathroom, in the shop, in -- in a
truck -- underneath a bridge in a truck just down the road from the shop;
that's at Transcript Page 306. He was caught sleeping by his computer on 25
a couple of occasions. He was caught sleeping in the office at his desk.
He was caught sleeping at Bob Ben's desk in his chair. He was caught
dozing off while working on a truck while he was actually talking to Bill
Kane. Those references are at Transcript Page 333. Mr. Tschiggfrie also
observed Mr. Galle sleeping on the job, and not only that, Your Honor, 30
Darryl Galle himself admitted to dozing off on the job at least once a week
during the summer of 2015.
When Tschiggfrie had confronted Galle about sleeping on the job, Galle had replied that
prescription medication made him drowsy and later provided a note from his doctor. Tschiggfrie 35
asked for more documentation but never received it. Then, it appears, he dropped the matter.
Tschiggfrie's testimony indicates that the problem with Galle falling asleep at work arose
in June 2015, and perhaps continued into July. The fact that Tschiggfrie took no action after
asking Galle for documentation suggests that Galle no longer fell asleep at work. If the problem 40
had persisted into August or September, presumably Tschiggfrie would have suspended Galle, or
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13
given him another warning, or at least have insisted that Galle furnish the documentation
Tschiggfrie had requested.
Certainly, some of Galle's coworkers did not like him and complained to management
about him. If Galle had continued to sleep on the job, they likely would have made further 5
complaints. Tschiggfrie's inaction suggests either that there were no further complaints about
Galle sleeping on the job or that Tschiggfrie did not consider the matter serious enough to warrant
discipline.
Galle did receive a written warning on August 17, 2015, but this warning said nothing 10
about sleeping on the job. Instead, it cautioned him not to discuss "union organizational
viewpoints with fellow employees during work."
It is logical to assume that, in general, an employer will be more likely to impose discipline
for conduct which is of greater concern and will be less likely to discipline for conduct of lesser 15
concern. Therefore, I conclude that the Respondent was more concerned about Galle discussing
the union with other workers than about his sleeping on the job.
This conclusion appears consistent with another fact. On August 18, 2015, the day after
Respondent issued Galle the warning for discussing the union, the Respondent's attorney, Denis 20
Reed, sent an email to Union Business Agent Saylor. It stated:
Rod has had other employees unhappy about his constant diatribe.
If he can't get it out of his system and stop bothering people at work
I believe he will be subject to termination.25
Reed's testimony makes clear that "his" referred to Galle. Thus, Reed described this
document as "another e-mail from me to Kevin, getting more forceful about trying to do
something about Mr. Galle's efforts to disrupt -- really disrupt the other employees, we thought."
The email raises the possibility that Galle would be discharged but does not mention Galle 30
sleeping on the job.
The Board does not set any standards regarding how much investigation, if any an
employer must conduct before discharging an employee. However, an absence of investigation
may be considered in assessing the employer's motivation. Here, the Respondent conducted 35
scant investigation before discharging Galle but hired a computer expert to investigate afterwards.
This sequence of events, discharging Galle and then conducting the investigation, is
relevant to an argument Respondent raised concerning Galle's refusal to turn his personal
computer over to the general manager when Tschiggfrie asked for it. During cross-examination, 40
the Respondent questioned Galle about this refusal. Galle's explanation, that he did not give the
laptop to Tschiggfrie because he had already been discharged, accords with the audio recording
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14
which Tschiggfrie made at the time. Thus, the portion of that recording quoted above includes
the following:
Mr. TSCHIGGFRIE: Okay. Well, you know what? Darryl, as of
this moment, you are terminated.5
And what I'll do is I'm going to take this computer --
Mr. GALLE: No, you're not taking that computer.
10
A further portion of the recording, not excerpted above, establishes that Tschiggfrie
persisted in asking Galle to turn over his computer for forensic examination even after he told
Galle that he was discharged:
Mr. GALLE: I'm not leaving my computer here for you to do 15
whatever you want with.
Mr. TSCHIGGFRIE: No, you can stand right here. I'm going to
have a computer forensic -- now, listen to me. I'm going to have a
computer forensic technician come here and look at that and see 20
how much you're on that computer and that website. Is that fair?
Mr. GALLE: You already said I was terminated.
Mr. TSCHIGGFRIE: My question is, is that fair? And you are 25
terminated.
Galle owned the laptop in question. Galle's refusal to turn it over to the man who had just
fired him is the reaction I would expect from someone with a proud and assertive personality.
This refusal may well reflect annoyance at being summarily discharged rather than any intent to 30
conceal the information on the computer. Therefore, I draw no inference from the refusal.
The Respondent raises a further argument because the computer no longer was in Galle's
possession at the time of hearing. Galle testified that he had sent the laptop to a "forensic person"
in Arizona. On further questioning, Galle identified the "forensic person" as his uncle. During 35
oral argument, the Respondent characterized Galle's action as spoliation of evidence:
But, Your Honor, most insidious in this case is that neither Local 120, nor
the Field Agent or Office of General Counsel of the NLRB ever asked Mr.
Galle to preserve the laptop or his browser history as evidence, and the 40
Respondent, Your Honor, expressly requests that the Court make an
express finding that Darryl Galle and the Local Union and the NLRB
JD−55−16
15
failed to preserve the evidence, and enter a spoliation evidentiary finding
that the browser history, if it had been preserved appropriately, would
confirm, one, what Rod Tschiggfrie saw on the morning of October 1,
2015, demonstrated that Mr. Galle was using personal paid --paid
company time to pursue his own personal business interests; two, that the 5
findings of Victor Mowery would have been substantiated by Mr. Galle's
own computer to establish a finding of actual misconduct.
Galle's rather vague description of what his uncle would be doing with the laptop does
raise some suspicions about his motive. Nonetheless, I am somewhat skeptical that the present 10
record would suffice to establish spoliation should I consider and resolve the issue at this point.
The Respondent asserts that neither the Union nor the General Counsel told Galle to preserve the
laptop and the record does not establish that he otherwise had notice to do so. However, I need
not decide this question now because the answer would not affect the outcome.
15
Here, I must determine whether General Manager Tschiggfrie would have decided to
discharge Galle if there had been no protected activity. If Galle had not gone to the Union to start
the organizing drive, if he had not spoken with other employees urging them to support and vote
for the Union, if he had not served as union observer, and if he had not continued to promote the
Union after the election, would Tschiggfrie still have fired him?20
No information on Galle's laptop could answer or even help answer that question.
Tschiggfrie did not know what was on the computer's hard drive at the time he discharged Galle,
so whatever that data might reveal could not have affected the decision. Tschiggfrie had seen the
laptop's screen and taken a photograph of it before discharging Galle, so what he saw on the screen 25
could have influenced his decision. However, he did not probe deeper into the computer, so the
information he might have found on the hard drive is not relevant.
Similarly, the information which the computer expert, Mowery, later obtained from the
Respondent's firewall could not have affected the discharge decision because Tschiggfrie did not 30
know that information when he decided to discharge Galle. The computer expert's testimony is
indeed relevant to the issue of Galle's credibility as a witness because it casts doubt on Galle's
denial that he had visited certain websites while at work. However, I have not considered
Mowery's testimony in determining Tschiggfrie's motivation because it is not relevant to that
inquiry.35
If Galle sent his laptop to his uncle to make the information on it inaccessible during the
hearing, such an action might be relevant in determining the remedy but the issue which must be
decided now concerns liability. Therefore, the spoliation issue may be deferred until the
compliance stage. 40
JD−55−16
16
As stated above, in considering a respondent's defense, the Board looks to the respondent's
own documentation concerning the discharged employee's conduct, to the respondent's personnel
policy handbook, and to how the respondent treated other employees with recorded incidents of
discipline. The Respondent has not presented such evidence sufficient to carry its burden.
5
With respect to evidence concerning Galle's conduct, the only documentation consists of
the August 17, 2015 written warning for discussing the union with other employees, and two
emails the Respondent's attorney sent to the Union's business agents. These documents say
nothing about Respondent's claimed reasons for discharging Galle, namely that he stole time by
sleeping on the job and by working on his own Internet-related business instead of performing his 10
assigned duties.
With respect to the Respondent's personnel policy, the Respondent does not have an
employee handbook. Moreover, it has no rule prohibiting employee discussions during working
time.15
With respect to the Respondent's past treatment of employees, the Respondent did not
present any evidence that it had dealt with other employees in a similar manner for conduct similar
to Galle's. In view of the small employee compliment, it seems unlikely that there would be any
such past incidents.20
In other respects, the Respondent has not carried its burden of showing that it would have
treated Galle in the same way even if he had not engaged in protected activities. Therefore, I
recommend that the Board find that the Respondent violated the Act, as alleged in the complaint,
by discharging Galle.25
The Johnnies' Poultry Issues
During the hearing, the General Counsel moved to amend the complaint to allege that
while preparing its defense in this case, the Respondent had violated Section 8(a)(1) of the Act by 30
questioning employees without giving them the assurances specified in Johnnie's Poultry Co., 146
NLRB 770, 774–776 (1964), enf. denied 344 F.2d 617, 619 (8th Cir. 1965).
In Johnnie's Poultry, the Board set forth safeguards to reduce the possibility that an
employer, while questioning an employee in preparation for a trial or hearing, might interfere 35
with, restrain or coerce employees in the exercise of their Section 7 rights, and thereby violate
Section 8(a)(1) of the Act. Before asking the employee any questions, the employer must (1)
inform the employee of the purpose of the questioning; (2) assure the employee that no reprisals
will take place for refusing to answer any question or for the substance of any answer given; and
JD−55−16
17
(3) obtain the employee's participation in the interview on a voluntary basis. Johnnie's Poultry,
146 NLRB at 775.3
The General Counsel argues that the testimony of employees Sam Becker and Bill Kane
reveals that the Respondent's counsel did not comply with the Johnnie's Poultry requirements 5
before interviewing them:
Both employees, Sam Becker and Bill Kane, testified that they were
interviewed by Rod Tschiggfrie and Respondent's attorney. Mr. Becker's
interview was several months after Darryl Galle was discharged, and Mr. 10
Kane's was about a month before the hearing, and then again the week
before the hearing. Those interviews covered a broad range of subjects
related to this Unfair Labor Practice case, and much like the questions that
were asked by the Respondent at the hearing, which Mr. Becker testified to
at Transcript Page 318, and also specifically conversations the employees 15
had with Darryl about the Union and its organizing campaign.
Although the General Counsel cites Becker's testimony on cross-examination, the
vagueness of that testimony concerns me. For one thing, Becker could not remember whether he
met with the lawyer face-to-face or spoke with him over the telephone. Becker's inability to 20
recall such a basic fact about the interview casts doubt on the extent and reliability of his memory.
Other parts of Becker's testimony also raise concerns. During oral argument, the General
Counsel noted some of those problems:
25
Mr. Becker's testimony was wholly incredible and filled with
inconsistencies. While one minute it sounded like Darryl [Galle] was
walking around the plant hassling everybody about the Union, and the next
minute Mr. Becker indicated that Darryl was, quote, "stay to himself and
just not talk to anybody," end quote, and that was at Page 310 of the 30
transcript.

3 Even if an employer takes these steps, the employer still must take care not to violate the Act. The Board
also stated in Johnnie's Poultry that the "questioning must occur in a context free from employer hostility to
union organization and must not be itself coercive in nature; and the questions must not exceed the necessities
of the legitimate purpose by prying into other union matters, eliciting information concerning an employee's
subjective state of mind, or otherwise interfering with the statutory rights of employees." 146 NLRB at 775.
The Board further stated: "In defining the area of permissible inquiry, the Board has generally found
coercive, and outside the ambit of privilege, interrogation concerning statements or affidavits given to a
Board agent." Id.
JD−55−16
18
At another point, Mr. Becker indicated that Darryl would spend time
talking to him about his computer- based business, apparently while Darryl
was staying to himself and not talking to anybody, and he would be
showing him the computer while they were sitting there at work and how
his business operated on his personal computer, but just a few moment 5
later, Mr. Becker also volunteered that he would not even have known how
to turn on a computer, and that was again at Page 310 of the transcript.
Mr. Becker even amazingly testified that Darryl came in one morning
flashing $30,000 in cash around the shop, an amount that must have
amounted to about six months' salary. 10
Becker indeed did testify that on one occasion, Galle brought a bag with $30,000 in it to
work. No other evidence corroborates this testimony. Because of other inconsistencies in
Becker's testimony, I am reluctant to suspend my disbelief.
15
Moreover, Becker gave nonresponsive answers to some questions. For example, on
direct examination, Becker testified that he quit his job because Galle was hassling him so much
that he could not concentrate on his work. On cross-examination, the General Counsel asked if
he had quit for another reason:
20
Q. And isn't it true that you told several of your colleagues that
you were quitting because the lights in the shop were
bothering your eyes?
A. They were supposed to be getting in but -- somewhat of
that. 25
Q. Okay. And that's what you told employees was the lights
was part of the reason you were quitting?
A. No, that wasn't because I was quitting though.
30
Q. But you told them the lights were bothering you?
A. They weren't bothering me, I just couldn't see no more.
Becker's answers are either nonresponsive, or unintelligible, or both. Perhaps, when
Becker testified that his eyes "weren't bothering me, I just couldn't see no more," he meant that his 35
eyes failed in a painless way, but that interpretation is speculative. Moreover, even if that is what
Becker meant, he did not answer the question the General Counsel had asked.
Although a judge may credit some portions of a witness' testimony but not other parts,
doing so would not be appropriate here because there are inconsistencies even in the portion of 40
Becker's testimony pertaining to the Johnnie's Poultry allegations. Becker initially testified that
the Respondent's attorney assured him there would be no retaliation:
JD−55−16
19
Q. Okay. And did he tell you that no actions would be taken
against you regardless of what you said?
A. Yes.
5
However, two questions later, Becker said the opposite:
Q. Okay. But did -- my question is did he tell you that he
wouldn't disciple you, for example, whether you
cooperated or not?10
A. No.
Q. So he didn't talk about you know, no discipline would be
taken against you?
A. Right. 15
In sum, I conclude that Becker's testimony is too flawed to trust. Therefore, I deny the
General Counsel's motion to add a Johnnie's Poultry violation based on that testimony.
The General Counsel also has moved to amend the complaint to allege Johnnie's Poultry20
violations in connection with Respondent's pretrial interviews with employee William Kane.
According to Kane, the first of these meetings to place about a month before the hearing, which
would place it in mid-March 2016. Kane testified that the second meeting took place about a
week before the hearing, placing it in early April 2016.
25
According to Kane, on both occasions he met with General Manager Rodney Tschiggfrie
and the Respondent's counsel, Davin Curtiss. With respect to the mid-March meeting, Kane
testified that the general manager's secretary called him to the office, where Tschiggfrie
introduced him to the Respondent's attorney:
30
Q. Mr. Curtiss? Okay. And so what kind of questions did
they ask about?
A. Just, you know, if I had worked with Darryl and if I had
seen him sleeping, you know, using his personal computer.
I've never really actually seen him on his personal 35
computer. I know he brought it to work and took it home
every day. But, I didn't -- I've never actually seen him do
anything on it, you know?
Q. Okay. Did they also ask you questions about the Union 40
campaign?
A. Yeah, a few, but not a lot.
JD−55−16
20
Q. But questions about -- like conversations Darryl had about
the Union?
A. Yeah. I had told them then, they didn't ask me, but I had
told them about him calling me a snitch and stuff like that, 5
so --
Q. Okay. And they asked about the other kinds of
harassment and stuff by Darryl?
A. Yep. 10
Q. Okay. And kind of the questions that we talked about --
A. Uh-huh.
Q. -- about him approaching you and talking about the Union?15
A. Yep.
Q. Okay. And I guess at any point during any -- I just want to
focus on the one just about a month ago, to start with, did
either Rod Tschiggfrie or the company attorney inform 20
you, actually tell you it was voluntary to be there?
A. Yes.
Q. They told you it was voluntary?
A. I believe so. 25
Q. Okay. Who was it who told you it was voluntary?
A. Well, Rod had called -- when I got called up to the office
and then he just asked me these questions, but I guess I
can't honestly say if they told me if it was voluntary or not. 30
When asked whether he had received assurances that no action would be taken against
him, Kane answered, "Yeah, nothing was brought up of that, no."
Whether or not this interview constituted an unlawful interrogation, cannot be determined 35
by referring only to the Johnnie's Poultry precedent. Rather, to determine whether the interview
interfered with, restrained and coerced employees in the exercise of Section 7 rights, in violation
of Section 8(a)(1), I apply the test developed by the Board in Rossmore House, 269 NLRB 1176
(1984) and its progeny. This framework guides an assessment of the impact the questioning
reasonably would have on employees' willingness to exercise their Section 7 rights.40
JD−55−16
21
The Johnnie's Poultry principle creates a kind of safe harbor for trial preparation, provided
that the interview adheres to its standards. However, an otherwise lawful question does not
become unlawful because the Johnnie's Poultry assurances were not given. To take an obvious
example, a manager could spend all afternoon asking an employee about the best way to cook
hotdogs and the questions would be lawful even if the manager failed to tell the employee the 5
purpose of the questions, that answering was voluntary, and that no action would be taken against
him regardless of his answers.
So, it is appropriate to begin the analysis by focusing on whether the questions were
coercive and, if so, to what extent. From Kane's testimony, I conclude that much of the interview 10
concerned whether Galle was using his computer for purposes unrelated to his work duties and the
extent to which he had slept on the job.
When the General Counsel asked whether Tschiggfrie and Curtiss had posed any
questions about the Union, Kane replied, "Yeah, a few, but not a lot." When the General Counsel 15
then referred to "conversations Darryl had about the Union, Kane answered "Yeah. I had told
them then, they didn't ask me, but I had told them about him calling me a snitch and stuff like that.
. ." (Italics added.)
When the General Counsel asked whether any questions concerned Galle "approaching 20
you and talking about the Union" Kane simply answered "Yep." However, the General Counsel
did not press for details. Kane did not describe any specific question related to the Union.
Kane's testimony, that there were "not a lot" of questions about the Union is quite credible
because neither the general manager nor the attorney had any reason to ask questions about the 25
Union. They were interviewing Kane to prepare the Respondent's defense, essentially, to search
for proof that Galle had flaws totally unrelated to his union activities. More specifically, they
would have been looking for evidence which supported the Respondent's defense, evidence that
Galle had slept on the job and had neglected his job duties while using his computer to further his
own business.30
Under Wright Line, a respondent's defense entails showing that factors other than union
activities weighed so heavily in the decision-making process that the presence of antiunion animus
would not have affected the outcome. So, it is not surprising that the Respondent's general
manager and counsel did not ask a lot of questions about union activities.35
From Kane's testimony, I cannot conclude that Tschiggfrie and Curtiss asked any specific
question about union activities. At most, the record supports a conclusion that the subject of
unions came up during the meeting. However, not every reference to a labor organization
constitutes an unlawfully coercive interrogation.40
JD−55−16
22
It is not possible to judge the lawfulness of a question using the Rossmore House standards
without knowing what the question was. Because the record does not establish that Tschiggfrie
or Curtiss asked any specific union-related question during the mid-March 2016, amending the
complaint to allege an unlawful interrogation at that meeting would not be warranted.
5
Likewise, the record does not establish that Tschiggfrie or Curtiss asked Kane any specific
union-related question during the meeting a week before the hearing. When the General Counsel
asked Kane if they "pretty much run through the same kind of questions that you were asked this
morning," Kane answered "Yes."
10
The General Counsel bears the burden of proving that the Respondent asked an employee
unlawful questions about union activities or sentiments or other protected activities. The
government does not have to elicit testimony quoting the question verbatim, but it must offer proof
enough to reveal what information the employee was called upon to provide. Such evidence is
not present here.15
Unless the record reveals at least the gist of a question, it cannot be determined how much,
if at all, answering the question would coerce the employee. Moreover, the Respondent would
have no way of knowing what evidence it needed to present as a defense.
20
In sum, I conclude that amending the complaint to allege instances of unlawful
interrogation would be unwarranted. Therefore, I deny the General Counsel's motion.
Summary
25
For the reasons discussed above, I find that the Respondent violated Section 8(a)(1) of the
Act by the conduct described in complaint paragraphs 5, 6(a) and 6(b) and violated Section 8(a)(3)
of the Act by the conduct alleged in complaint paragraphs 6(a) and 6(b).
Remedy30
Having found that the Respondent committed the unfair labor practices alleged in the
complaint, I recommend that Board order the Respondent to take actions to remedy the violations,
including posting the Notice to Employees attached to this decision as Appendix A.
35
This case presents several issues concerning the most appropriate remedy for the
Respondent's unfair labor practices. The General Counsel, of course, seeks an order requiring the
Respondent to reinstate Galle and to make him whole for all losses of earnings he suffered because
of the unlawful discrimination against him. Such relief is typical and customary to remedy the
unlawful discharge of an employee.40
JD−55−16
23
The General Counsel also seeks additional remedial provisions. Specifically, the
government requests an order requiring that the Respondent reimburse Galle for all
search-for-work and work-related expenses regardless of whether Galle received interim earnings
in excess of these expenses, or at all, during any given quarter, or during the overall backpay. The
government also requests that the make whole remedy include "reasonable consequential damages 5
incurred as a result of the Respondents unlawful conduct."
The General Counsel's request for a remedy which the Board customarily has not ordered
seeks a change in Board policy. The judge has no authority to change Board policy. Therefore, I
do not include such additional provisions in the recommended order below.10
The customary remedy for an unlawful discharge includes both reinstatement and
backpay. However, evidence which the Respondent acquired after the discharge raises some
doubt about the appropriateness of these usual remedies in the present case. Here, reinstatement
and backpay might be challenged under either of two legal theories.15
Board precedent holds that, in certain circumstances, it may deny a backpay remedy to
someone who has given false testimony in the Board proceeding. In Toll Manufacturing
Company, 341 NLRB 832 (2004), the Board stated that it "conducts a 'balancing' analysis and
assesses the impact of the discriminatee's transgression on the integrity of the Board's processes." 20
The Board considers the overall veracity of a witness' testimony and also considers the impact the
falsehood had on the Board's processes.
Here, I am concerned about Galle's testimony denying that he had accessed websites
unrelated to his job duties while at the Respondent's facility. The firewall logs and the testimony 25
of a computer expert, Victor Mowery, contradict that claim and do so rather persuasively.
Therefore, to the extent that other evidence conflicts with Galle's testimony, I do not credit that
testimony.
However, I stop short of finding that the inaccurate testimony resulted from a lie. The 30
firewall evidence concerning the websites visited impresses me as being trustworthy but I still
hesitate to reach the harsh conclusion that Galle deliberately testified falsely while under oath.
Absent additional evidence of deceptive intent, it is fair to give Galle the benefit of the doubt rather
than conclude that he committed perjury.
35
Moreover, regardless of whether Galle did or did not visit websites unrelated to his job
during working time, and even without Galle's testimony, I would find his discharge to be
unlawful. Evidence other than Galle's testimony established all elements the government needed
to make its initial showing, which the Respondent's defense did not surmount.
40
Even assuming for the sake of analysis that Galle deliberately gave false testimony on this
one point about what websites he visited while at work, I would not conclude that he failed to be
JD−55−16
24
truthful in the rest of his testimony. For purposes of determining Galle's eligibility for
reinstatement, Galle's denial that he visited certain websites during working time would fall into
the category of an "insignificant trespass on the truth" as the Board used that term in Toll
Manufacturing Company, above, citing Lincoln Hills Nursing Home, Inc., 288 NLRB 510, 512
(1988). It did not affect the outcome of this proceeding and also did not pose a significant threat 5
to the integrity of the Board's processes. Therefore, this testimony would not, in my view,
warrant denying Galle a full backpay remedy.
However, a second legal theory also must be considered. The information Mowery
obtained by examining the firewall logs does reveal apparent wrongdoing which might have 10
justified Galle's discharge and which might make him unsuitable for future employment by the
Respondent. This evidence, which the Respondent acquired after Galle's discharge, does not
redeem that termination because the Respondent did not consider this evidence when making the
discharge decision. Nonetheless, information found in the firewall logs does bear on the
appropriateness of reinstatement.15
It reveals that Galle was not honest with his employer. That, in turn, calls into question
the truthfulness of Galle's explanation for sleeping on the job, the claim that prescription
medication made him drowsy. It also raises a question of how much working time Galle spent
developing his own online business rather than performing his job duties. 20
In McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), an employee
secretly violated her employer's confidential document policy. The employer did not know about
this breach when it terminated her employment but learned later, after she sued for age
discrimination. The Supreme Court held that the misconduct made reinstatement inappropriate 25
and that backpay would be tolled as of the date the employer discovered the misconduct. The
Court further held that when an employer seeks to rely upon after-acquired evidence of
wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in
fact would have been terminated on those grounds alone had the employer known of it at the time
of the discharge.30
Accordingly, I recommend that the Board permit the Respondent to litigate, at the
compliance hearing stage, whether Galle's misconduct, revealed after his discharge by
examination of the firewall logs, was of such severity that he would have been discharged lawfully
on that basis alone had the Respondent known of the misconduct at the time it. A determination 35
that the Respondent lawfully would have discharged Galle had it been aware of the evidence of
misconduct would also stop backpay from accumulating beyond the date Respondent discovered
that evidence.
In view of this recommendation, that Respondent be allowed to contest at the compliance 40
stage the appropriateness of a reinstatement remedy, a question arises concerning the wording of
JD−55−16
25
the order recommended below. Should the recommended order include a provision that the
Respondent reinstate Galle if that issue has not yet been decided?
The recommended order and notice language below do include the requirement that the
Respondent reinstate Galle. Leaving this customary language in the recommended order is 5
consistent with the Board's practice in Somerset Valley Rehabilitation and Nursing Center, 362
NLRB No. 113 (2015).
In its Somerset Valley decision, the Board discussed whether the respondent should be
ordered to reinstate two discriminatees, Jacques and Wells. After a thorough analysis, the Board 10
reached a conclusion contrary to that of a federal district court which had been petitioned to grant
interim injunctive relief under Section 10(j) of the Act. The Board decided that the two
discriminatees should be reinstated and ordered the respondent to do so within 14 days. See 362
NLRB No. 113, slip op. at 3.
15
The Board's order required the respondent to offer reinstatement to the discriminatees
within 14 days. The order did not specifically state that the respondent could continue to litigate
the reinstatement issue in a compliance proceeding.
When the respondent petitioned for review of the Board's decision, and the Board 20
cross-applied for its enforcement, it brought the contradictory conclusions of the Board and the
District Court to the attention of the United States Court of Appeals for the Third Circuit.
However, the Board's brief to the Circuit Court stated that the respondent would have the
opportunity to challenge the reinstatement order at the compliance stage. See 1621 Route 22
West Operating Company, LLC, d/b/a Somerset Valley Rehabilitation And Nursing Center v. 25
NLRB, ___ F.3d ____, Docket Nos. 15-2466 & 15-2586, slip op. at 38 (3rd Cir. 2016) ("The
Board. . .points out that it deferred the matter to compliance proceedings. . .which will provide an
opportunity to litigate whether this evidence affects Wells' entitlement to reinstatement and
backpay.") The Court enforced the Board's order.
30
Accordingly, I conclude that the presence of a reinstatement requirement in the
recommended order below would not signify a final adjudication of the reinstatement issue and
would not preclude the Respondent from raising and litigating it in at the compliance stage.
CONCLUSIONS OF LAW35
1. The Respondent, Tschiggfrie Properties, Ltd., is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Charging Party, Teamsters Local 120, affiliated with the International 40
Brotherhood of Teamsters, is a labor organization within the meaning of Section 2(5) of the Act.
JD−55−16
26
3. The Respondent violated Section 8(a)(1) of the Act by instructing employees not
to discuss the Charging Party at work, by issuing a disciplinary warning to an employee because
he discussed the Charging Party at work, and by discharging the employee because of his activities
on behalf of the Charging Party and to discourage other employees from engaging in such
activities.5
4. The Respondent violated Section 8(a)(3) of the Act by issuing a disciplinary
warning to an employee because he discussed the Charging Party at work, and by discharging the
employee because he formed, and/or joined and assisted a labor organization, including by
discussing the Charging Party with other employees at work, and to discourage other employees 10
from engaging in such activities.
On these findings of fact and conclusions of law and on the entire record in this case, I
issue the following recommended4
15
ORDER
The Respondent, Tschiggfrie Properties, Ltd., its officers, agents, successors, and assigns,
shall
20
1. Cease and desist from:
(a) Instructing employees not to discuss the Charging Party or other matters
regarding representation by the Union at work.
25
(b) Taking disciplinary action against employees because they discussed the
Charging Party or other matters regarding union representation at work.
(c) Discharging employees because they formed, joined or assisted a labor
organization or engaged in other protected, concerted activities, including discussing the Charging 30
Party at work, and to discourage other employees from engaging in such activities.
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing, or to engage in 35
concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.

4 If no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations, these findings,
conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the
Board, and all objections to them shall be deemed waived for all purposes.
JD−55−16
27
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Within 14 days after service by the Region, post at its facilities in 5
Dubuque, Iowa, copies of the attached notice marked "Appendix A."5 Copies of the notice, on
forms provided by the Regional Director for Region 25, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent immediately upon receipt 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 10
that the notices are not altered, defaced, or covered by any other material. In addition to physical
posting of paper notices, noticed shall be distributed electronically, such as by email, posting on an
intranet or internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. J. Picini Flooring, 356 NLRB 11 (2010). In
the event that, during the pendency of these proceedings, the Respondent has gone out of business15
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 August 17, 2015. Excel Container, Inc., 325 NLRB 17 (1997).
(b) Within 14 days from the date of this Order, offer employee Darryl Galle 20
full reinstatement to his former position or, if his former position no longer is available, to a
substantially equivalent position, without prejudice to seniority or any other rights or privileges
previously enjoyed, and make him whole, with interest, for any loss of earnings and other benefits
suffered as a result of the discrimination against him. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), plus daily compound interest as prescribed in 25
Kentucky River Medical Center, 356 NLRB 6 (2010).
(c) Within 14 days from the date of this Order, remove from its files any
reference to the unlawful discharge of Darryl Galle and, 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.30
(d) 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 Regional Director
attesting to the steps that the Respondent has taken to comply.
35

5 If this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice
reading POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD shall read
POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
Dated Washington, D.C.
5
JD−55−16
28
June 24, 2016
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 abide by 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 interfere with, restrain or coerce our employees in the exercise of these
rights, guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT instruct our employees not to discuss the Union or any matters related to
representation by the Union while at work.
WE WILL NOT issue a warning to, or take any disciplinary action against an employee
because the employee discussed the Union or union representation at work, because the employee
formed, joined or assisted a labor organization or engaged in protected, concerted activities, or to
discourage other employees from doing so.
WE WILL NOT discharge any employee because the employee discussed the Union or
union representation at work, because the employee formed, joined or assisted a labor
organization or engaged in protected, concerted activities, or to discourage other employees from
doing so.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our
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 Darryl Galle full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to seniority or any other rights or privileges previously enjoyed.
WE WILL We will make Darryl Galle whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, less any net interim earnings, plus interest.
WE WILL, within 14 days of the Board's Order, remove from our files any reference to the
unlawful written warning and discharge of Darryl Galle and WE WILL, within 3 days thereafter,
notify him that neither the warning nor the discharge will be used against him in any way.
TSCHIGGFRIE PROPERTIES, LTD.
(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 an agent with the Board's Regional Office set
forth below. You may also obtain information from the Board's website: www.nlrb.gov.
575 N. Pennsylvania Street, Room 238, Indianapolis, IN 46204-1577
(317) 226-7381; Hours: 8:30 a.m. to 5:00 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-161304 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (317) 226-7413.