NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
MJ Mueller, LLC d/b/a Benjamin Franklin Plumbing and United Association of Plumbers and Gasfitters, Local Union No. 34. Cases 18–CA–18216, 18–CA–18419, and 18–CA–18504
May 30, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On December 28, 2007, Administrative Law Judge David I. Goldman issued the attached decision. The Respondent filed exceptions and the General Counsel filed an answering brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order.2
ORDER
The
National Labor Relations Board adopts the recommended Order of the administrative
law judge and orders that the Respondent, MJ Mueller, LLC d/b/a Benjamin
Franklin Plumbing, North Branch,
officers, agents, successors, and assigns, shall take the action
set forth in the Order.
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
Nichole L. Burgess-Peel, Esq., for the General Counsel.
Travis D.
Stottler, Esq., Jonathan R. Cuskey, Esq. (Miller Law Office, P.A.), of
Nicole M.
Blissenbach, Esq. (Miller-O’Brien Cummins), of
DECISION
David I. Goldman, Administrative Law Judge. These cases involve a small commercial and
residential plumbing business operated from an office in North Branch,
Statement of the Case
Based on unfair
labor practice charges filed by the United Association of Plumbers and
Gasfitters, Local Union No. 34 (the Union), the General Counsel of the National
Labor Relations Board issued a consolidated complaint on August 31, 2007,[1] alleging
violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act)
against MJ Mueller, LLC d/b/a Benjamin Franklin Plumbing (Ben Franklin or the Respondent). The General Counsel issued an amendment to
the consolidated complaint on October
10 adding allegations that
the Respondent
violated Section 8(a)(1) and (5) of the Act.
The Respondent filed answers to the consolidated complaint and to the
amendment to the consolidated complaint denying all alleged violations. At the outset of the trial, the General Counsel
orally moved to amend the complaint to add an additional allegation in support
of the 8(a)(5) allegation. That motion
was granted.[2]
This dispute was
tried in
The Respondent
admits and I find that at all material times it has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act. Based on the record, I also find that at all
material times the
A. Recognition of the
The Respondent
operates two Benjamin Franklin Plumbing franchises from its office in North
Branch,
In the fall of
2006, Mueller hired a consultant to analyze the business and offer advice on
changes that could be implemented to make the business more profitable. The conclusions (as set forth in R. Exh. 8)
included pointed concerns about the productivity and efficiency of staff. A number of recommendations were proposed,
including increased efforts to track and raise employee work efficiency.
In October 2006,
Mueller sent LaMont on a “ride-along” with a plumber from a Ben Franklin
franchise from the Twin Cities. Mueller
wanted LaMont to see how this other company operated. It happened to be a union company and during
their time together LaMont and his host discussed and compared their operations
and terms and conditions of employment.
The union company sounded “very attractive” to LaMont and ultimately the
union employee provided LaMont with the name and number of Plumbers Union Organizer
Gary Schaubschlager. LaMont contacted
Schaubschlager and a meeting was arranged for October 25, 2006.
LaMont and Doty
met with Schaubschlager at an area restaurant on this date. At the meeting they discussed the merits of
unionization and the process of obtaining representation. Doty and LaMont signed authorization cards at
this meeting. Van-dewetering signed a
card that was provided to Schaubschlager a few days later.
On the morning
of November 1, 2006, Schaubschlager, accompanied by a union field representative,
arrived at the North Branch Ben Franklin shop.
Employees were leaving a weekly meeting when Schaubschlager entered the
building. Schaubschlager introduced
himself to Mueller and, holding up LaMont and Doty’s authorization cards, announced
that he was there to seek voluntary recognition of the
Mueller said, “Oh
good, the
Schaubschlager
reached Mueller the next morning and asked Mueller about the request for
voluntary recognition. Mueller told him
that “he was soon to be a unit of one and that he had no intention of having a
union at his place of business.”
Schaubschlager replied, “Well, then I’ll have to do what I have to do.” Schaubschlager then filed a representation
petition with the Board and an unfair labor practice charge.[5]
Prior to the
hearing in the representation case scheduled for November 16, Mueller and
Schaubschlager reached an agreement on the pending charge and petition. In exchange for withdrawal of the petition
and the pending unfair labor practice charge, Mueller agreed to voluntarily
recognize the
On November 15,
2006, Mueller again conducted a weekly employee meeting. At the meeting, the employees watched a Ben
Franklin instructional video, and marked Vandewetering’s last day at work as a
full-time employee. At the meeting, Mueller
announced that in order to make the franchise more profitable he was “going to
start to work in the field and jobs would trickle down from there.” Previously, Mueller had performed mostly bids
and made estimates for customers, performing plumbing jobs only when work was
too busy for the employee-plumbers. At
the meeting he announced that he would take service calls which would leave
less work for LaMont and Doty.
Doty testified
that after this point, his workload declined steadily and that by January “I
was pretty much getting maybe one call, two calls a week, if that.” LaMont also had less work and in February and
had no work for some weeks, but in March he was recalled and began working
steadily. Mueller testified that the
business began to slow in the winter and there was insufficient work available
to keep the employees busy during this time.
B. Bargaining
The parties
bargained steadily from November 2006 through April 2007. During this time, Mueller and Schaubschlager
met to bargain a total of 12 times, approximately every 1 to 3 weeks. In addition, sidebar meetings were held in
which Mueller and Steve Pettersen, vice president of the Minnesota Mechanical
Contractors Association, met with Stan Theis, the business manager of Local 34
of the Plumbers Union. Mueller’s
attorney at this time, Doug Seaton, also attended sometimes. Schaubschlager did not attend these sidebar
meetings, but based on the testimony these meetings were ongoing and an
important part of the process.
Schaubschlager “felt that the negotiations were going quite well from
where we started to where we ended up.”
At an April 18,
2007 meeting, Schaubschlager offered counterproposals to Mueller’s April 9
proposals. Mueller indicated he saw some
problems with Schaubschlager’s counterproposals but said he would look at
them. According to Schaubschlager,
Mueller said, “I’ll get back to you.” A
meeting was scheduled for May 8.
Before May 8,
Region 18 of the Board took action to dismiss various charges filed by the
Mueller failed
to attend the May 8 meeting. After
waiting half an hour Schaubschlager called Mueller and Mueller said, “Oh, did
we have a meeting today?” Schaubschlager
said yes. Mueller said that he had been
waiting to hear from Pettersen.
Schaubschlager told Mueller that “it is my understanding, or I’ve been
led to believe, that Steve Pettersen is not willing to bargain on your behalf
any longer.” Mueller said that they
would need to reschedule, and that he had to talk to Pettersen to find out what
was going on. Asked how things were
left, Schaubschlager testified that “[w]ell, I left it that for the time being
because the—we had made the last proposals to him. We were waiting for a response. I saw no point in negotiating against
ourselves.” Schaubschlager testified
that his “understanding” was that Mueller would be getting back to him after
talking to Pettersen.
When Mueller got
back to Schaubschlager by letter dated June 6, his response evinced an
understanding contrary to Schaubschlager’s.
Mueller wrote:
Substantial time has passed since our
last conversation. At that time you said
you would contact me to schedule future negotiations. You have not done so. I therefore conclude that the union is not
interested in further negotiations.
Mueller testified that in the spring he
met a lot with “Pettersen and Theis.
They were—we were trying to put together a deal so we could go
forward.” He also testified that “[w]hen
I called Pettersen, he told me that the
Schaubschlager
responded by letter to Mueller dated June 8.
He stated:
At our April 18, 2007 meeting I provided you with our latest proposals. You indicated to me you were going to look them over and get back to me. We then scheduled a meeting for May 8 2007 and you failed to show up at that meeting.
It is my understanding that Steve Pettersen is no longer interested in bargaining on your behalf and I stated that to you in our phone conversation in May. I have no reason to believe his position on the matter has changed.
I intend to continue to bargain in good faith with you and hopefully we can come to an agreement satisfactory to both sides.
I suggest you and I meet on Tuesday June 26 at Perkins in
Schaubschlager
did not receive a response to this letter, and on that basis did not attend the
meeting he scheduled for June 26.
Mueller claimed to the Region in pretrial position statement that he
attended the meeting, but Schaubschlager did not show, adding to his view that
the
In his August 30
letter, Schaubschlager proposed that the parties meet September 18 at the
Forest Lake Perkins at 9 a.m. This time,
Schaubschlager wrote that “I expect you to RSVP me by September 14, 2007 if
this date is acceptable or unacceptable to you.” Schaubschlager included his phone and fax
number in the letter. Having heard nothing
from Mueller, on September 17, Schaubschlager wrote Mueller indicating that “[b]ecause
I have not heard from you, I have concluded that you are refusing to bargain
further with the
The morning of
October 2, at about 10:30 a.m., Mueller’s secretary contacted Schaubschlager
and told him that Mueller was still waiting to see the doctor and
Schaubschlager asked her to have Mueller call when he was finished at the
doctor. Mueller called at about 11:45
a.m., and asked if they could meet at 2 p.m.
Schaubschlager, who was waiting at the Perkins restaurant, insisted that
Mueller meet him, and Mueller arrived at the meeting at about 12:15 p.m. They met for approximately 45 minutes, which
was the typical length of their bargaining sessions. Mueller arrived without proposals, or even a
notepad, but when Schaubschlager remarked upon this, Mueller pointed to his
head and declared that “I have it all up here.”
According to Schaubschlager’s account of the meeting, they reviewed the
By letter dated
October 4, the
By letter dated
October 4, 2007, in a position statement submitted to NLRB Region 18 regarding Case
18–CA–18504, Ben Franklin’s counsel stated that “while my client has not completely
ruled out future negotiations with the Union, he will refrain from negotiating
with the Union any further until the charge filed against him by the NLRB for
refusing to negotiate is addressed and resolved.” This was reiterated and expanded in an
October 12 letter to the Region in which counsel for Ben Franklin declared that
Mueller would not negotiate with the Union “until the charges filed against him
by the NLRB with respect to Cases 18–CA–18504, [18–CA–]18216, and [18–CA–]18419
have been resolved.”
C. Doty’s Termination
Doty, a licensed
master plumber, was hired by Mueller to work at Ben Franklin on July 6,
2006. As discussed above, after
recognition of the
After April 30,
2007, Doty continued to receive few, if any, work calls from Ben Franklin. In the first week of June, LaMont told Doty
that he believed hours were missing from his pay and that he had asked for his
timesheets. LaMont told Doty that the
Respondent’s administrative assistant, Patti Norrgard, had said that Mueller
had changed the timecards and that LaMont would have to take it up with
Mueller. LaMont told Doty that he too
should request his timesheets to “double-check to make sure [Doty] wasn’t
shorted any hour or time.” Doty told
LaMont that he should take criminal action against Mueller and that he should
call Schaubschlager.
On Thursday,
June 7, Doty called Ben Franklin and requested his timecards in a conversation
with Patti Norrgard. Doty told her that
LaMont had said there were some questions on this and that he wanted to check
his. In this conversation Doty asked
Norrgard how business was and told her “basically my truck hadn’t moved for a
month and grass was growing around it so I had to move it for mowing and stuff.”
The next day,
Mueller stopped LaMont in the hallway at work and told LaMont that Doty had
called and asked for his timecards.
Mueller told LaMont “to no longer talk with Don about this issue and
also he was gonna pick up Don’s truck from his house and not to inform him or
let him know about this.”[9] That day, Mueller called Doty and left a
voice mail stating that he would come by Doty’s house and pick up the Ben
Franklin truck. On Saturday, June 9,
Mueller picked up the truck. On
Thursday, June 14, he wrote Doty:
On Saturday June 10, [[10]] 2007, I came to your home to pick up
the Ben Franklin Plumbing truck. In the
truck, I found your uniforms and cell phone, which I also took away with
me. Because you left those items in the
truck, I assume that you are resigning from your position with Ben Franklin
Plumbing.
The letter also contained forms and
information regarding Doty’s right to choose COBRA coverage to continue his
health insurance.
Approximately 1-week
later, Doty called Mueller and said that, contrary to Mueller’s letter, he was
not resigning. Doty told him that he put
the uniform and company phone “in the truck to keep it together” but that he
was not quitting. Mueller acknowledges
that he probably responded by saying, “Ok.”
However, on approximately June 26 or 27, Mueller called Doty and told
him that his services were no longer needed.
He told Doty to remember to sign up for COBRA because his health
insurance would expire at the end of the month if he did not.
No explanation
was provided to Doty about the grounds for the termination. Mueller maintained at trial that the
motivation for terminating Doty was his solicitation of work while on a service
call for Ben Franklin. Doty did not
dispute, and essentially conceded, the events described by Andrew Fiedler, who
in March 2007, was the chairman of the board of trustees of the American Legion
Post in
“Well, if you plan on getting a bid from
Ben Franklin, you can expect to pay 10 to 15 percent more just to have that
big, blue piece of shit pull up,” and then he pointed out the window to the
Benjamin Franklin truck, which is blue.
Doty also told
Fiedler that “he hadn’t worked, hadn’t been called out to a job since January,
I believe he said, and that now that Mike and the other guy that are taking up
all the jobs don’t want to do this shitty job, they call me finally.” Towards the end of the service call, Doty
told Fiedler that “[i]f you have Mike . . . come out and bid the job, you know,
you can expect a 10 to 15 percent markup and the job will be half-assed. I can do it better if you want to get a bid
from me . . .instead.” Doty told Fiedler
that he was “working on the side” but that his employer was not aware of
it. Doty provided Fiedler with a business
card—not a Ben Franklin card, but a card referencing a company with Doty’s
name.[11]
A few weeks
later, during the second week of April, Fiedler called Ben Franklin and asked
for someone to come to the Post to give him a bid on the remodeling job. Later in April, Mueller came to review the
proposed job. While Mueller was there,
Fiedler gave him the card Doty had left and told Mueller about Doty’s comments.[12]
There can be no
doubt that Mueller was concerned about the potential for plumbing employees to
generate work for themselves while on the job for Ben Franklin. Indeed, Mueller required Doty and LaMont to
sign “noncompete” agreements when they took the job with Ben Franklin. Mueller’s insistence on these agreements
conclusively demonstrates his concern with the issue of soliciting work on the
job, a concern that preceded any events in this case. However, when Fiedler reported Doty’s conduct
to Mueller, Mueller said nothing to Doty about the incident, or about the
“noncompete” agreements. Mueller took no
steps to discipline or terminate him Doty.
Rather, he “just never called him back in to work.” According to Mueller, “[i]n my mind he was terminated,
officially on paper he wasn’t terminated.”[13]
D. LaMont’s Termination
LaMont was hired
by Mueller at Ben Franklin in July 2005.
He worked as a plumber performing service work, repairs, remodeling,
drain cleaning, and some new construction work. LaMont was terminated June 12, 2007, during
a contentious meeting with Mueller about
Mueller’s practice, discovered by LaMont a couple of weeks earlier, of
altering LaMont’s timecards and paying him for less time than LaMont submitted
on his pay cards. As discussed below,
Mueller believed that LaMont’s timecards overstated his compensable time. The termination also followed, by one day, an
incident at a customer’s house, reported by the customer to Mueller, in which
LaMont complained to the customer about Mueller’s pay practices and showed some
of the disputed timecards to the customer.
Beginning in
January 2007, LaMont’s hours of work had declined, and by February LaMont considered
himself “laid off.”[14] During the 2-week period he was laid off,
LaMont took a plumbing job with Rooter plumbing. In March, upon his resumption of work with
Ben Franklin, LaMont received a “last chance warning” memo. As the basis for the warning the memo cited
the inadequate quality of LaMont’s work on a job in October, and the complaint
by the customer at this job that LaMont solicited business for himself from the
customer’s girlfriend. In addition, the
memo upbraided LaMont for taking the job with Rooter. The memo termed LaMont’s conduct “unacceptable”
and stated that “[a]ny further misconduct of any kind will result in immediate
termination.”[15]
The Respondent’s
plumbers were paid on an hourly basis for work performed during 2-week pay
periods. The employees filled out and
submitted daily timecards setting forth hours worked. In addition, when they moved from service
call to service call during the day the plumbers would call in to the office
and an office employee would record the time they started and completed
jobs. These were entered into a computer
and Mueller used these calculations as the basis for calculating hours worked
for pay purposes. Mueller testified that
the manual timecards submitted by employees provided certain inventory information
but in terms of calculating time, were more of a backup to the information
entered into the computer. In the fall
of 2006, then office administrator Amanda McAllister was approached by either
Mueller or Norrgard about potential discrepancies between the timecards
submitted by LaMont and the times recorded in the computer by McAllister. McAllister told Mueller and/or Norrgard that
they needed to go over the timecards and computer information with the
plumbers. McAllister testified that a
cause of the discrepancies in LaMont’s case was the times when LaMont would
indicate he was going to put, for example, 3:15 p.m. on his timecard which
would include time for him driving to next job, while McAllister would enter 3
p.m., which was the time she believed he finished the job. By the end of the fall McAllister says that
this was happening daily and she talked with Mueller about it monthly in the fall
of 2006.[16]
In early May it
occurred to LaMont that his paychecks were less than they had been in the past. He requested that Norrgard review the payroll
figures for that week. She did and told
LaMont that everything was correct.
LaMont still thought “it didn’t seem right to me, so I started keeping
track . . . . of my time.” He did this
for the pay period covering May 5 thru 19.
Employees were paid approximately 2 weeks after the end of a pay period
so LaMont was paid for the May 5 thru 19 period on approximately June 1. When he got his paycheck he compared it to
the time he had recorded and found that he had not been paid for approximately
11 hours he had recorded as worked over the 2-week pay period. This prompted LaMont, on June 1, to request
from Norrgard copies of his timecards he had submitted for the pay period
covering May 1 to 18. When she provided
them to LaMont it appeared that on some of the timecards the hours he had
submitted had been circled and a lower number of hours written in. LaMont was paid for the lower number of hours
written in.
When LaMont saw
this, he called Mueller on June 5. LaMont
said, “Mike, what’s going on,” and Mueller expressed chagrin over the
situation. According to LaMont’s
undisputed (and credited) testimony, Mueller told him: “I’m a Christian
man. I know I shouldn’t have been doing
this and I have a bitter taste in my mouth about the union situation.” LaMont responded, “Mike, if I was stealing
from you over the past two years, by now I should’ve been fired.”
The next day,
June 6, LaMont wrote a note to Mueller requesting copies of his timecards since
his date of hire. In his letter LaMont
said he wanted to be “paid back for the time taken off my timecards by the end
of next week 6–15–07.” LaMont
added that
When I was hired I was told by Mike, I
was an hourl[]y employee. Mike also said
the work day is [from] 8–5 and paid
drive time. (Original emphasis.)[17]
After writing
this letter LaMont approached Norrgard seeking access to his personnel
file. This enabled LaMont to see many
(but not all) of his past timecards and it appeared to LaMont that the changes
to the timecards had been going on for some time. According to LaMont, Norrgard
confirmed this, saying, “I had nothing to do with this. Mike’s been doing this ever since January.”
As discussed,
above, LaMont talked to Doty and got him to request pay cards. LaMont told Doty that his timecards had been
altered and that Doty should also check to see if it had been happening to
him. In addition, LaMont left a message
with Vandewetering suggesting that he should do the same.[18] Doty suggested that LaMont should contact
Schaubschlager and he did that too. Doty
also suggested that LaMont “should contact the authorities,” i.e., the police,
about the pay discrepancy, advice that, as discussed below, LaMont eventually
followed.
On Friday June
8, Mueller told LaMont not to talk to Doty about the timecard issue and told
LaMont he was going to pick up Doty’s truck, but not to let Doty know this.
On Monday June
11, LaMont was assigned a service call at the home of Teri Recht. In February 2007, Recht, a small business
owner, joined a business networking group of which Mueller was a member. She saw Mueller at the group’s weekly
meetings, and through these meetings the two had exchanged referrals. Recht needed some plumbing work done on pipes
in her backyard shop in the “pole barn,” and some additional work in the
kitchen of her house. She contacted Ben
Franklin (probably through Mueller), and LaMont came to her house June 11. She had met him once before on a previous
service job. While LaMont was working
on the sinks in the house Recht was making breakfast and after asking her employee
if she wanted breakfast, Recht asked LaMont if he wanted some. LaMont said he did, and thanked Recht profusely,
commenting that “he couldn’t believe somebody would ask him to do that.” While they ate, Recht asked him how he like
working for Mueller. According to Recht,
“He didn’t respond about Mike. He just
said that he would like to work for someone that was honest and something about
integrity.” LaMont repeated these
comments several times over the course of the morning and explained to Recht
about the timecard issue. Later, LaMont
was leaving and came back inside to get payment from Recht. They talked some at the door, and LaMont
asked Recht if she wanted to “see the timecard that was altered.” Recht went out to his truck and “then he
pulled out his timesheets and he explained that Mike had not paid him for
certain hours and that there was something about a plumbing part that supposedly
Steve had took from a house that I didn’t really understand because it had
nothing to do with me, but so he thought that Mike was not paying him for what
he deserved.” LaMont’s disclosures, no
doubt encouraged by Recht’s hospitability, did not go over well with Recht. “I
really didn’t want to hear about it, and so I pretty much left.”[19]
Recht was upset,
specifically with the fact that LaMont had shown her the timecards, and she
told Mueller about it the next morning at their business networking
meeting. According to Mueller, Recht
told him that LaMont said he was a “crook and that you ripped him off with his
timecards” and that he had shown her the timecards. Recht specifically denied telling Mueller
that Lamont used words like “crook” or “liar” in describing the incident to
Mueller. She testified that she told
Mueller that LaMont had said that he “wanted to work for somebody that was
honest and had integrity.” I credit
Recht’s account, although I do not doubt that in discussing the incident with
Mueller, Recht’s (completely reasonable) impression that LaMont questioned
Mueller’s ethics with regard to the pay issue was conveyed to Mueller.[20]
LaMont began the
morning of June 12 by selling “a well job” on his first call. Mueller was excited to learn about this,
which suggests that he had not yet talked to Recht when LaMont called in to
report the sale. LaMont was sent to another
service call, and planned to return back to install the well job when Elizabeth
Hatch, from Mueller’s office, called and told him stop at the office before
going to complete the well job. When
LaMont arrived she told him to go into the back office room. Mueller was sitting at the table with papers
and timecards in front of him. He told
LaMont, “I want you to sit down and go through these timecards, initial off on
them stating that they’re okay.”
LaMont began to
review the timecards. The first one had
no changes from what LaMont had submitted and he initialed it. The next one had his hours circled and a new
figure written in. LaMont indicated he
did not want to initial it. Mueller
raised the issue of drive time not being included in compensable hours.
At that point
LaMont stood up announced that he wanted a third party to be present for this
meeting. LaMont started to exit the
room. Mueller asked him, “[W]here are you
going?” LaMont said, “I want to go to my
next job.” Mueller said, “[n]o, it’s
your job assignment to sit down and go through all these timecards and initial off
on them.” LaMont resisted, and said, “No
. . . I want to go to my next job” and insisted that he did “not want to go
over ‘em, not unless I have a third party there.” Mueller said, “I’m ordering you and I’m
demanding you to go in the office and initial off on these stating that these
timecards are right. I’m not paying you
another dime until you do this.” LaMont
said, “Well, sounds to me if you’re not gonna pay me another dime, you’re
firing me.” Mueller said, “I’m not
firing you, I’m laying you off then.”
LaMont was preparing to leave despite Mueller’s directive when Mueller
raised the incident at Recht’s home.
Mueller said, “What you did yesterday, that was stupid.” At first LaMont either did not know what
Mueller was referring to, or pretended not to, but after Mueller pressed the
issue, saying that LaMont knew what he was referring to, LaMont said, “Yeah, I
showed her the timecards.” At that
point, Mueller said, “All right, you’re fired.
Get out of my office. Get out of
here now.” LaMont walked back into the
meeting room in an effort to retrieve his timecards. However, Mueller took them off his desk and
ordered LaMont off the property. LaMont
called the police. He filed a complaint
in an effort to obtain his timecards, but according to the police report,
Mueller did not have them all available and the police convinced LaMont to
leave without the timecards. That same
day, June 12, Mueller wrote a letter “To Whom It May Concern,” a copy of which
was sent to LaMont, Seaton, and Schaubschlager, stating that LaMont was being
terminated because of “clear evidence” that Mueller characterized as LaMont “actively
discrediting Mueller’s Ben Franklin Plumbing Co. and Mike Mueller himself.” According to the letter, Recht had reported
to Mueller that LaMont had said that “Mike Mueller was cheating him by taking
time off on Steve’s timecards, and that Mike was crooked. Steve then took out copies of his timecards
and actually showed them to the client, in an attempt to make his case.”
E. New Employees Hired
With LaMont and
Doty’s termination, Ben Franklin had no full-time plumbing employees, although
Vandewetering remained a part-time bargaining unit employee. Three additional full-time employees’
plumbers were hired in the next months.
Ryan Green, an apprentice plumber was hired at the end of July
2007. Keith Betters, who specialized in
drain cleaning, was brought in to do drain cleaning in August. In early September, Russell Newcomb, an
apprentice plumber was hired, and he was assigned to develop the
Legal Analysis
A. Alleged 8(a)(1) Threats and Questioning
(Paragraph 5 of the Complaint)
Section 8(a)(1)
of the Act provides that “It shall be an unfair labor practice for an employer
to interfere with, restrain, or coerce 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 protects employees’ right to engage in “concerted activity” for the
purposes of “collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. In the complaint, the Government alleges that
certain comments made to employees by Mueller violate Section 8(a)(1) of the
Act. I consider each, below.
1. November
1, 2006
(Paragraphs 5(a) and (b) of the complaint)
The General
Counsel alleges that Mueller’s comments to Doty on November 1, 2006, immediately
after being confronted with the
The General
Counsel contends that Mueller’s first question to Doty—“did you sign on with
the union”—constituted unlawful interrogation.
The General Counsel alleges that Mueller’s second comment, made after
Doty indicated that he had “signed on” with the
The Board has
identified a number of factors that are “useful indicia”[21]
in determining whether the questioning of an employee constitutes an unlawful interrogation,[22]
however, there are no particular factors “to be mechanically applied in each
case.” Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. 760 F.2d
1006 (9th Cir. 1985);
If Mueller’s
question to Doty—“did you sign on with the union”—could be isolated from his
followup remark—“fine I can work here alone”—there might be a colorable
argument that this one question was not coercive.[23] While Doty was not yet an open union supporter,
this event occurred at a time when Schaubschlager was, presumably with Doty’s
consent, trying to show Mueller the union authorization card Doty had
signed. Moreover, the questioning was
not persistent or repeated, and took place in an open hallway. While Mueller was the head of the company, he
was also someone who worked daily with Doty.
But Board precedent counsels that the interrogation must be considered
under all the circumstances. Here, the
circumstances include the critical fact that the sole identifiable purpose for
Mueller’s question to Doty was as a predicate for, and part and parcel of a
crude and obviously coercive threat to eliminate work for or fire Doty and
others, precisely because of his affirmative answer to the question of whether
he had “signed on with the union.” The
second comment by Mueller, almost in the same breath as the first, was a
straightforward barely veiled threat of job loss for “signing on with the union”
and would undoubtedly have a tendency to interfere, restrain, and coerce
Section 7 rights. Thus, “the questioning
did not occur in a context free of other coercive conduct” (Demco New York
Corp., 337 NLRB 850, 851 (2002);
see Millard Refrigerated Services,
345 NLRB 1143, 1146–1147 (2005)).
Rather, it occurred as a constituent, inextricable part of a threat of
job loss. While the conversation might
have been impromptu, there was nothing causal or accidental about it. Under the circumstances, the interrogation,
like the threat of job loss, was highly coercive and violated Section 8(a)(1)
of the Act as alleged.
2. November
15, 2006
(Paragraph 5(c) of the complaint)
The Government
also alleges that at the November 15, 2006, employee meeting Mueller unlawfully
threatened to remove bargaining unit work from employees and assign it to
himself, thereby reducing employees’ work hours, if employees chose union
representation.
Certainly, the
evidence does not show any explicit comment to this effect by Mueller. Rather, the evidence shows only that at this
meeting, Mueller announced that in order to make the franchise more profitable
he was “going to start to work in the field and jobs would trickle down from
there.” Is this an implicit threat? Obviously, the fact that Mueller’s initial
response to learning about the union drive 2 weeks earlier was to tell Doty, “[F]ine,
I can work here alone,” gives legs to this allegation. However, other factors do not support the
claim. In coming months employees’
hours, particularly Doty’s, were reduced, yet the Government does not allege
that the reduction in hours was unlawfully motivated. Indeed, a charge to that effect was
dismissed, based, in part, on the legitimacy of the consultant’s study, commissioned
by Mueller prior to any union activity that supported the legitimate need for
extensive changes in employment practices.
It is incongruous for the General Counsel to contend that Mueller’s
statements that he intended to increase his own service work and reduce employees’
work was reasonably and objectively an implicit threat of retaliation for the
union campaign, yet accept that Mueller’s institution of this operational
change was a legitimate business-motivated action. The evidence does not show that the statement
of intention to change operating procedures was an implied threat of retaliation
for the union campaign.[24]
3. June 5
(Paragraph 5(d) of the complaint)
The Government
alleges in paragraph 5(d) of the complaint that the “Respondent, in a telephone
conversation with an employee, threatened the employee that Respondent was
reducing the employee’s hours reported on the employee’s timecards because of
the employee’s support for the Union.”
The complaint
references the comment made by Mueller to Lamont when LaMont telephoned on June
5, after learning about the altered timecards.
Lamont said, “Mike, what’s going on.”
Mueller expressed chagrin over the situation. According to LaMont’s credited testimony,
undisputed by Mueller, Mueller told him: “I’m a Christian man. I know I shouldn’t have been doing this and I
have a bitter taste in my mouth about the union situation.” LaMont responded, “Mike,
if I was stealing from you over the past two years, by now I should’ve been
fired.”
I do not believe
that it has been proven that Mueller changed the timecards in retaliation for
the employees’ union activity. Rather,
Mueller believed that LaMont was filling out his timecards wrong. He believed that driving time should not have
been included in compensable time and he believed LaMont was including it. He also had been told by dispatcher Amanda
McAllister that drivers were not putting the same time on their timecards as
she was submitting to the software program tracking hours. That is what led Mueller to alter the
timecards.
Having said that, Mueller’s statement
drew an express link between his lingering anger over the employees’ decision
to unionize and his alteration of the timecards. As reflected by his comments and reference to
his religious faith, Mueller believed it was wrong that he had changed the
timecards without talking to LaMont about it, and he was worried about having
done it, and the repercussions that could result. Regardless of his true motivations for
altering the timecards, Mueller’s attempt to explain his actions by explicit
reference to the “bitter taste” left from the union campaign would reasonably
tend to interfere with the exercise of protected activity. It is settled, of course, that in determining
the coerciveness of remarks, the Board applies an objective standard and
evaluates whether the remarks reasonably tend to interfere with the free
exercise of employee rights. The Board does not consider either the motivation
behind the remarks or their actual effect.
Miller Electric Pump &
Plumbing, 334 NLRB 824, 825 (2001); Joy
Recovery Technology Corp., 320 NLRB 356, 365 (1995), enfd. 134 F.3d 1307
(7th Cir. 1998). See Postal Service, 350 NLRB No. 43, slip
op. at 5 (2007) (“Although we are mindful of the personal animosity between
McCann and Gill, McCann’s statements were clearly and directly tied to Gill’s
protected conduct, and would reasonably tend to interfere with Gill’s exercise
of his protected Section 7 rights”) (footnotes omitted). Subjective motives aside, the objective and
reasonable understanding of Mueller’s comment would be that the timecard
alterations are a consequence of the union activity. That is, obviously, a message that violates
Section 8(a)(1) of the Act.
4. June 8
(Paragraph 5(e) of the complaint)
The General Counsel alleges that the Respondent violated the Act by instructing an emp